Phoenix v. McCarthy et al
Filing
114
MEMORANDUM OPINION AND ORDER Signed by Judge Rebecca Grady Jennings on 2/9/2023. Defendant's Motion for Summary Judgment (DE 91 ) is GRANTED. The Court DENIES Phoenix's Motion to Set a Hearing Date (DE 112 ). cc: Counsel, Plaintiff (SMJ) Modified on 2/10/2023 - date corrected (SMJ).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
GAIL MAIRE PHOENIX
Plaintiff
v.
Civil Action No. 3:17-CV-00598-RGJ-CHL
DR. MARK T. ESPER,
Secretary of the Army
Defendant
* * * * *
MEMORANDUM OPINION AND ORDER
Defendant Dr. Mark T. Esper, Secretary of the Army (“Defendant”) moves for Summary
Judgment [DE 91]. Plaintiff Gail Phoenix (“Phoenix”) responded [DE 94], and Defendant Replied
[DE 95]. Phoenix moves for a hearing [DE 112], and Defendant opposes. [DE 113]. This matter
is ripe. For the reasons below, the Court GRANTS Defendant’s Motion for Summary Judgment
[DE 91] and DENIES Phoenix’s Motion to Set a Hearing Date [DE 112].
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Gail Marie Phoenix (“Phoenix”) was employed by the Department of the Army
during the relevant period. [DE 1 at 2-5]. On August 2, 2016, she contacted an Equal Employment
Opportunity counselor (“EEO counselor”) alleging discriminatory actions by her employer, and
approximately thirty days later, filed the Formal Complaint of Discrimination (DA Form 2590)
(“Formal Complaint”). [DE 1-2 at 19].
After she filed the Formal Complaint, Phoenix applied for two positions with the
Department of the Army, one in September 2016 and one in December 2016. [DE 91 at 1162; DE
91-15 at 1358-60]. She was not selected for either position. Id.
On November 30, 2016, Phoenix filed a written request for accommodations from her
supervisor Anthony Clark (“Clark”). [DE 91 at 1167; DE 91-1 at 1204; DE 94 at 1382; DE 94-6].
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Phoenix requested to telework. [DE 91-1 at 1205; DE 94 at 1382-83]. She alleges that her
coworkers saw and discussed her accommodations request among themselves. [DE 94 at 1387].
The request was approved and Phoenix began teleworking in January 2017. [DE 91-1 at 1205;
DE 94 at 1370-71].
Jeff Bryson (“Bryson”) was the supervisor responsible for certifying Phoenix’s timecard
for the pay period from December 11-24, 2016 (hereinafter “timecard”).1 [DE 91 at 1162; DE 94
at 1370-71]. Bryson did not certify this timecard and her paycheck was resultingly delayed. [DE
91 at 1162; DE 94 at 1370-71, 1375].
On July 7, 2017, the Equal Employment Opportunity Commission (“EEOC”) issued a
right-to-sue letter to Phoenix. [DE 1 at 6; DE 1-1]. In September 2017 Phoenix sued pro se,
alleging discrimination and retaliation against her in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e to 2000e-17, and 42 U.S.C. § 1983. [DE 1].
The Court has previously dismissed all Defendants except Dr. Mark T. Esper, Secretary of
the Army, and all claims except Phoenix’s retaliation claim. [DE 20 at 228]. Phoenix moved for
default judgment, amended her Complaint, moved twice for summary judgment, and the Court
denied the default judgment and summary judgments. [DE 33; DE 52; DE 56; DE 60; DE 70; DE
86]. There remains three “adverse acts” on the part of her employer that purportedly give rise to
her retaliation claims: (1) the non-approval of her timecard; (2) delay in her request for a work
accommodation and the purported disclosure of her medical condition; and (3) job application
The parties appear to interchangeably use the terms “certify” and “approve,” in reference to Bryson’s
actions with Phoenix’s timecard. [See DE 91at 1162 (“Bryson, the individual responsible for certifying
Phoenix’s time as accurate”); Id. at 1168 (“Bryson was unaware of Phoenix’s EEO activity at the time he
made the decision to not approve her time card.”); DE 94 at 1371 (“Bryson was aware and knew about
Phoenix [sic] Complaint when he made the decision to not approve her timecard”); Id. at 1379 (“Phoenix
claims, “but for” Bryson not certifying her timecard, she would have been paid”).
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rejections. [DE 60 at 680-85, 691]. Defendant now moves for summary judgment on each of
these remaining claims. [DE 91].
II.
STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
“should be rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the
moving party shows that there is no genuine issue of material fact about an essential element of
the nonmoving party’s case on which the nonmoving party would bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, the Court must view the facts and draw all
reasonable inferences in a light most favorable to the nonmoving party. 60 Ivy St. Corp. v.
Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The Court is not required or permitted, however,
to judge the evidence or make findings of fact. Id. at 1435-36. The moving party has the burden
of proving that no genuine issue of material fact exists. Id. at 1435. A fact is “material” if proof
of that fact could establish or refute an essential element of the cause of action or a defense
advanced by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). A dispute
over a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, when
a reasonable jury could not find that the nonmoving party is entitled to a verdict, there is no genuine
issue for trial and summary judgment is appropriate. Id.
Once the moving party carries the initial burden of proving that there are no genuine issues
of material fact in dispute, the burden shifts to the nonmoving party to present specific facts to
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prove that there is a genuine issue for trial. Id. at 256. To create a genuine issue of material fact,
the nonmoving party must present more than just some evidence of a disputed issue. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). The Supreme Court has
stated, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party
for a jury to return a verdict for that party. If the [nonmoving party’s] evidence is merely colorable,
or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–
50 (citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s
position will be insufficient; there must be evidence on which the jury could reasonably find for
the plaintiff.” Id. at 252.
“Pro se pleadings are held to a less stringent standard than formal pleadings drafted by
attorneys. Haines v. Kerner, 404 U.S. 519, 519 (1972). Yet “the lenient treatment generally
accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
1996). The fact that Plaintiff is pro se does not lessen his obligations under Rule 56. “The liberal
treatment of pro se pleadings does not require the lenient treatment of substantive law, and the
liberal standards that apply at the pleading stage do not apply after a case has progressed to the
summary judgment stage.” Johnson v. Stewart, No. 08-1521, 2010 WL 8738105, at *3 (6th Cir.
May 5, 2010) (citations omitted). The Sixth Circuit has made clear that, when opposing summary
judgment, a party cannot rely on allegations or denials in unsworn filings and that a party’s “status
as a pro se litigant does not alter [this] duty on a summary judgment motion.” Viergutz v. Lucent
Techs., Inc., 375 F. App’x 482, 485 (6th Cir. 2010); see also United States v. Brown, 7 F. App’x
353, 354 (6th Cir. 2001) (affirming grant of summary judgment against a pro se plaintiff because
he “failed to present any evidence to defeat the government’s motion”). However, statements in a
verified complaint that are based on personal knowledge may function as the equivalent of affidavit
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statements for purposes of summary judgment. Weberg v. Franks, 229 F.3d 514, 526 n.13 (6th
Cir. 2000); Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992).
III.
DISCUSSION
Defendant moves for summary judgment on Phoenix’s remaining retaliation claims,
arguing that she has not met her prima facie case for retaliation under Title VII. [DE 91 at 116390]. Phoenix argues that there are genuine disputes of material fact. [DE 94 at 1370-91].
Because Phoenix presents no direct evidence of retaliation, the burden shifting framework
set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), applies. See Scott v. Donahoe,
913 F. Supp. 2d 355, 364 (W.D. Ky. 2012) (citing Chen v. Dow Chem. Co., 580 F.3d 394, 402 (6th
Cir. 2009)). To prove a prima facie claim of retaliation under Title VII, Phoenix must prove that:
“(1) [s]he engaged in activity protected by Title VII; (2) the exercise of h[er] civil rights was known
to the defendant; (3) thereafter, the defendant took an employment action adverse to the plaintiff;
and (4) there was a causal connection between the protected activity and the adverse employment
action.”2 Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citation omitted).
To establish a causal connection, the plaintiff must offer sufficient evidence that her
protected activity was the likely reason for the adverse action. Dixon v. Gonzales, 481 F.3d 324,
333 (6th Cir. 2007). In other words, a plaintiff must adduce sufficient evidence from which an
inference can be drawn that the adverse action would not have been taken had the plaintiff not
The Court notes Phoenix’s argument that “the Court has ruled on most of the issues . . . stating that Phoenix
has satisfied most elements to establish retaliation, except having and proving [her employer’s knowledge]
of her protected activity.” [DE 94 at 1377]. Phoenix cites the Court’s Order on Motion to Dismiss, in
which the Court stated that “Phoenix has clearly articulated facts to support at least three of the four
elements. The only element that is arguably missing is whether her employer had knowledge of her
protected activity.” [DE 20 at 227]. The Court then held Phoenix to a less stringent standard as a pro se
litigant and concluded that Phoenix had sufficiently stated a retaliation claim, but the Court did not consider
the merits of that claim. [Id. at 228]. Thus, the Court in that Order was not concluding that Phoenix satisfied
any of the elements, but only that Phoenix sufficiently stated the claim in her Complaint.
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engaged in protected activity. Nguyen, 229 F.3d at 563. A causal link can be shown “through
knowledge coupled with a closeness in time that creates an inference of causation . . . [h]owever,
temporal proximity alone will not support an inference of retaliatory discrimination when there is
no other compelling evidence.” Id. at 566 (internal quotations omitted). This burden is minimal,
and only requires that plaintiff put forth some credible evidence that enables the Court to deduce
some causal connection between the protected activity and retaliatory action. Dixon at 333. “The
burden of establishing a prima facie case is not an onerous one.” Lewis-Smith v. W. Kentucky
Univ., 85 F. Supp. 3d 885, 906 (W.D. Ky. 2015), aff’d (Jan. 12, 2016) (citing Nguyen, 229 F.3d at
563).
If Phoenix can make out a prima facie case, the burden shifts to her employer to proffer a
legitimate nonretaliatory reason for its decision. Rogers v. Henry Ford Health Sys., 897 F.3d 763,
772 (6th Cir. 2018) (quoting Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009)).
Defendant’s burden, at that stage of the process, is one of production, not persuasion, and no
credibility assessment is to be made. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
142 (2000); Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012).
If her employer meets this burden, “the plaintiff must then prove by a preponderance of the
evidence that the reasons offered by the employer were pretextual.” Id. (citation omitted). Plaintiff
can meet this burden by showing that: (1) Defendant’s stated reason is baseless, (2) the reason
offered was not the actual reason for the adverse action, or (3) the reason offered was insufficient
to explain Defendant’s action. Imwalle v. Reliance Med. Prod., Inc., 515 F.3d 531, 545 (6th Cir.
2008) (citing Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994)).
For each of the potential adverse actions giving rise to Phoenix’s remaining retaliation
claims, the parties agree that Phoenix engaged in a protected activity by contacting the EEO
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Counselor and filing a Complaint. They dispute the other elements in varying measure depending
on the alleged adverse act, so the Court will consider each of these acts separately.
A. The Non-approval of Her Timecard
a. Prima Facie Case
As the Court discussed in its earlier order, Phoenix alleges that the nonapproval of her
timecard was an adverse retaliatory act. [DE 52-1 at 583; DE 60 at 681]. Defendant argues that
Phoenix cannot establish the causation element of the prima facie test. [DE 91 at 1167-73].
Defendant argues that Phoenix cannot prove the causal connection element because Bryson
was not involved in the EEO activity or the claims in the Formal Complaint and was unaware of
Phoenix’s protected activity when he did not approve her timecard. [Id. at 1168-70]. Phoenix
argues that the Court should still draw an inference of causation because “she has had
confrontations with Bryson in the past prior to the filing of her EEO Complaint on August 31,
2016, which mentions Bryson specifically.” [DE 94 at 1375]. She argues that “Bryson’s position
as chief, deputy chief in the same division as well as being mentioned in the Complaint of
Discrimination and Amended Complaints [to this lawsuit] makes it next to impossible for Bryson
to ‘not know’ about Phoenix’s EEO complaint.” [Id. at 1379-80 (internal citations omitted)]. Both
parties point to Phoenix’s Formal Complaint, which does not name Bryson as one of the parties
that discriminated against her but does state that Bryson yelled at her. [DE 1-2 at 18-24].
Defendant also points to Bryson’s sworn Declaration, in which he states, “[d]uring December of
2016, I was unaware that Ms. Phoenix filed an EEO complaint.” [DE 91-2 at 1226]. Phoenix does
not offer any evidence to show that Bryson was aware of her EEO activity, but argues that an
inference of knowledge should be drawn based on Bryson’s position and the fact that she
“mentioned [him] in the Complaint of Discrimination.” [DE 94 at 1380]. And Phoenix argues
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that “the type of adverse action (pay withholding) during the Christmas season give[s] high
inference to the causation.” [Id. at 1375]. Phoenix does not accompany her brief with a sworn
affidavit or any other evidence supporting a causal connection. Viergutz, 375 F. App’x at 485
(when opposing summary judgment, a party cannot rely on allegations or denials in unsworn
filings and a party’s “status as a pro se litigant does not alter [this] duty on a summary judgment
motion.”)
The Court should liberally construe the plaintiff’s complaint, consider whether those
allegations are facially sufficient to establish a “causal connection,” and “look only to the
plaintiff’s evidence to determine whether or not the plaintiff has established a prima facie case of
retaliation.” Ballanger v. Bunge Foods, 238 F.3d 419 (6th Cir. 2000); Cline v. Cath. Diocese of
Toledo, 206 F.3d 651, 664 (6th Cir. 2000). Even considering this, and that “[t]he burden of
establishing a prima facie case is not an onerous one,” the Court finds that there is insufficient
evidence to allow for an inference of a causal connection between Phoenix filing her Formal
Complaint and the non-approval of her timecard. See Garrett v. Brennan, No. 5:18-CV-221-JMHEBA, 2021 WL 1554893, at *7 (E.D. Ky. Apr. 20, 2021) (plaintiff “did not provide any evidence
that the disciplinary action she received was motivated by retaliatory intent, or that her supervisors
knew of the prior EEO activity and thus her prima facie case of retaliation fails.”). Lewis-Smith,
85 F. Supp. 3d at 906. Thus, Phoenix’ prima facie case of retaliation fails. But even if there were
sufficient evidence to allow for inference of a causal connection, Defendant has suggested a
legitimate reason for its actions, and the Court will continue with the next step in the burdenshifting analysis.
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b. Legitimate, Nondiscriminatory Reason
After the plaintiff establishes a prima facie case, the burden shifts to the defendant to
produce a legitimate and non-retaliatory reason for its decision. Rogers, 897 F.3d at 772.
Defendant argues, as it did in response to Phoenix’s motions for summary judgment, that
Bryson did not certify her timecard first because Phoenix did not submit or “concur” her hours by
the deadline and then upon review because the hours were inaccurate. [DE 91 at 1167-68].
Defendant submits Bryson’s sworn Declaration in support of this argument, in which Bryson
states:
Phoenix did not concur her time for this pay period by the prescribed deadline . . .
Phoenix had inaccurate hours indicated as ‘worked’ on her time card, [so Bryson]
did not certify her time because of the inaccurate hours [and if she] had the correct
hours reported and timely concurred [he] would have certified the time.
[DE 91-2 at 1226].
Defendant has thus articulated a legitimate nondiscriminatory reason for withholding
Phoenix’s pay and refuted her prima facie case of retaliation. As the Court explained in its Orders
on Summary Judgment, Defendant has met his burden at this step.
c. Pretext
As Defendant has provided a non-retaliatory reason, “the plaintiff must [now] prove by a
preponderance of the evidence that the reasons offered by the employer were pretextual.” Rogers,
897 F.3d at 772.
Although Phoenix does not specifically address pretext, the Court liberally interprets her
arguments as she is a pro se Plaintiff. Haines, 404 U.S. 519. Phoenix argues that Defendant’s
explanation is not legitimate because concurred her timecard by the deadline with accurate hours,
because she should have been paid regardless of the accuracy of her timecard, and that “she has
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had confrontations with Bryson in the past prior to the filing of her EEO Complaint.” [DE 94 at
1375-81].
To establish Defendant’s stated reason amounts to pretext, Phoenix must show that the
proffered reason (1) had no basis in fact; (2) did not motivate the adverse employment action; or
(3) could not motivate that action. Manzer, 29 F.3d at 1084. Ultimately, to carry her burden in
opposing summary judgment, Phoenix must produce sufficient evidence from which a factfinder
could reasonably reject Defendant’s explanation of why Bryson did not certify her timecard. Chen
v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). “This burden is not heavy, though, summary
judgment is warranted only if no reasonable juror could conclude that the employer’s offered
reason was pretextual.” Strickland v. City of Detroit, 995 F.3d 495, 513 (6th Cir. 2021).
Phoenix argues that she should have been paid regardless of the hours she submitted
because she is an “exempt” worker under the Fair Labor Standards Act (“FLSA”), and it is the
employer’s responsibility to maintain records of hours worked rather than the employee’s. [DE
94 at 1377-80]. She argues in essence that Defendant’s reasons must be pretextual, because under
FLSA her failure to submit proper hours by a deadline could not motivate failure to pay. [Id.].
Defendant does not respond to Phoenix’s FLSA arguments.3 Phoenix also argues that the stated
reasons must be pretextual because she had concurred accurate hours on her timecard by the
deadline. [Id. at 1371]. In support of this argument, Phoenix submits a copy of her timecard,
which has no date and states, “concur: yes.” [Id.; DE 94-2 at 1402]. She also points to Bryson’s
Declaration, stating he personally knew her hours were inaccurate, and argues that if Bryson knew
the times she did not work, he had no reason not to submit her timecard. [DE 91-4; DE 94 at
1378].
3
While the parties did not adequately brief the FLSA issue, Defendant does not appear to dispute that
Phoenix was an exempt worker.
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But again, Phoenix fails to accompany her argument with sworn affidavits or any other
evidence that actually suggests that Defendant’s reasons were pretextual, as is her burden at this
stage. Viergutz, 375 F. App’x at 485; Choulagh v. Holder, 528 F. App'x 432, 439 (6th Cir. 2013)
(affirming summary judgment where “[p]laintiff has no evidence that these reasons are
pretextual”). Phoenix’s retaliation claim for the nonapproval of her timecard thus fails and the
Court therefore GRANTS Defendant’s Motion for Summary Judgment [DE 91] on this claim.
B. Delay in Work Accommodation Request and Disclosure of Medical Condition
a. Prima Facie Case
As explained in the Court’s previous order, Phoenix alleges that the purported delay in her
request for a work accommodation and disclosure of one of her medical conditions were adverse
retaliatory acts. [DE 60 at 680-85, 691]. Defendant argues that Phoenix cannot prove a prima
facie case because these were not adverse actions and because she cannot establish a causal
connection. [DE 91 at 1173-83].
The Court first addresses the alleged delay in Phoenix’s work accommodations. Phoenix
states, and Defendant agrees, that she requested disability accommodations of 100% telework on
November 30, 2016, with a telework start date of December 12, 2016. [Id. at 1161-62; DE 94 at
1382; DE 94-6]. Her telework was approved January 13, 2017. [DE 91-6 at 1248; DE 94 at 1383].
She argues her accommodation request took forty-four days, which Clark delayed by leaving it on
his desk for two weeks. [DE 94 at 1383-84]. While she “does not allege that Clark is solely
responsible for the delay,” she does not point to another specific delay, and “claims but for Clark
delaying her request for reasonable accommodation because of her protected activity she would
have been on telework.” [Id.]. She points to an email from Lieutenant General James McConville
who stated that “the process should not have taken 45 days.” [Id. at 1384; DE 94-14 at 1438]. The
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policy Phoenix points at to explain the length of the delay is the “Reasonable Accommodation
Packet” from the Equal Employment Opportunity Office which states that reasonable
accommodations should generally be processed “within 30 business days.”4 [DE 94-1 at 1398].
If the accommodation request was not sent to the appropriate official, they will forward it “within
3 business days.” [Id.].
While Phoenix argues that Clark should have forwarded the accommodation request within
three days, she does not attach any evidence that he was not the appropriate official. [DE 94 at
1386]. Regardless of Clark’s compliance with the forwarding policy, the accommodation request
was approved by the terminal approving body on January 13, 2017.5 [DE 91-6 at 1248; DE 94 at
1383]. There are indeed forty-four days between November 30, 2016, and January 13, 2017. But
the accommodation packet attached by Phoenix states that accommodations should generally be
proceeded within thirty “business days.” [DE 94-1 at 1398]. There are only thirty business days
between November 30, 2016, and January 13, 2017. Thus, Phoenix has not shown that there was
a delay in the approval of her accommodation request under the policy she alleges Defendant
should have followed, and the purported delay could not have been an adverse or retaliatory action.
See Kanungo v. Univ. of Kentucky, 1 F. Supp. 3d 674, 683 (E.D. Ky. 2014) (“Kanungo has not
demonstrated that the delay in processing, if it can be called that, was an adverse action.”).
4
Phoenix also points to the United States Army Human Resources Command Reasonable Accommodation
Process, which states, “we want to expedite the processing of all reasonable accommodation requests within
the command.” [DE 94-10 at 1428]. This policy has no specific day range.
5
After approval by her supervisor, the request also had to be approved by a committee. [DE 91-6 at 1248;
DE 94 at 1383-85]. Defendant also notes that Phoenix did not have the technological capability to telework
until this date. [DE 91 at 1176]. Phoenix does not dispute this, and thus identifies no harm resulting from
any purported delay. The Court could dismiss the claim on this basis alone. Wurzelbacher v. Jones-Kelley,
675 F.3d 580, 583–84 (6th Cir. 2012) (quoting Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002)) (“When
a plaintiff’s alleged adverse action is ‘inconsequential,’ resulting in nothing more than a ‘de minimis injury,’
the claim is properly dismissed as a matter of law.”).
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The Court also considers the purported disclosure of medical condition related to Phoenix’s
accommodation request. Phoenix alleges that Nikki Quijano (“Quijano”), Brittany Wisniewski
(“Wisniewski”), and Celena Coleman (“Coleman”) and discussed her medical condition. [DE 60
at 680-83]. Phoenix argues that the disclosure of her medical information to these employees, and
their subsequent discussion of such, was an adverse employment action taken by the defendant in
retaliation for her filing her Formal Complaint. [Id.; DE 94 at 1386-88].
To establish a prima facie case of retaliation, a plaintiff must prove “the defendant took an
employment action adverse to the plaintiff.” Nguyen, 229 F.3d at 563. “Retaliatory acts by an
employer are not actionable unless they are “materially adverse” to a plaintiff’s employment.”
Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 470 (6th Cir. 2012). “An adverse employment
action is an action by the employer that ‘constitutes a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.’” White v. Baxter Healthcare Corp., 533
F.3d 381, 402 (6th Cir. 2008) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
“Examples of materially adverse actions are a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or]
significantly diminished material responsibilities. Wasek v. Arrow Energy Servs., Inc., 682 F.3d
463, 470 (6th Cir. 2012) (quotations omitted). “[N]ormally petty slights, minor annoyances, and
simple lack of good manners will not” rise to the level of an adverse employment action.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Phoenix argues that “Quiijano acknowledge [sic] that she possessed and read Phoenix’s
packet,” “Burtonmiller’s email also state, Quiijano [sic] had given the packet to Brittany . . . [and
Burtonmiller testified] that she heard both Coleman and Wisniewski talk about Phoenix,
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specifically, Phoenix’s diagnosis and other personal healthcare information.” [DE 94 at 1387].
The evidence Phoenix points to is Quijano’s declaration, in which Quijano testified she helped
Clark process Phoenix’s request for accommodation but did not recall learning of the basis for the
request. [DE 41-6 at 426-27]. Phoenix also points to an email from Burtonmiller dated December
16, 2016, that states, “[i]t was just given to Brittany, Nikki said Mr[.] Garcia will sign for Mr[.]
Clark.” [DE 94-15 at 1441]. And Phoenix alleges that Wisniewski said to Coleman about
Phoenix’s accommodation request, “she angry [sic] and she’s crazy.” [DE 94 at 1387]. To the
extent that she is arguing Burtonmiller’s knowledge of her accommodation request was retaliation,
Phoenix testified in her deposition that she herself discussed the request with Burtonmiller. [DE
91-1 at 1210]. While her other allegations are vague and do not clearly allege or suggest that
Phoenix’s coworkers were discussing her medical information, the Court will liberally interpret
her allegations as a pro se litigant and construe the facts and draw all reasonable inferences in a
light most favorable to the nonmoving party. Haines, 404 U.S. 519; Anderson, 477 U.S. at 248;
Hamilton Cnty. Educ. Ass’n v. Hamilton Cnty. Bd. of Educ., 822 F.3d 831, 835 (6th Cir. 2016).
Still, however, her fellow employees’ discussion does not rise to the level of a materially adverse
employment action because even if the employees knew of her medical condition and discussed
it, the disclosure and subsequent discussion did not “constitute[] a significant change in
employment status.” White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008); see
also Burlington Northern and Santa Fe Ry. Co., 548 U.S. at 68 (“Title VII, we have said, does not
set forth a general civility code for the American workplace.”) (quotation omitted). Nor, the Court
notes, did Phoenix cite any case law to the Court suggesting that this was a materially adverse
employment action. [See DE 94 at 1381-88]; Viergutz, 375 F. App’x at 485 (a party’s “status as a
pro se litigant does not alter [their] duty on a summary judgment motion.”).
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Thus, having failed to meet her burden of proving Defendant took an adverse employment
action related to her purported delay in work accommodation and medical information disclosure,
Phoenix has failed to prove a prima facie case of retaliation on this claim. Nguyen, 229 F.3d at
563. The court thus GRANTS Defendant’s Motion for Summary Judgment [DE 91] on Phoenix’s
delay in work accommodation and disclosure of medical condition claim.
C. Job Application Rejections
Finally, Phoenix has claimed that “she applied for over 28 positions that she was qualified,
certified, and referred for and denied advancement.” [DE 33 at 286; DE 52 at 563-65]. But she
only alleges that three of those applications came after she engaged in protected conduct, and the
Court considers this claim only as it relates to those three non-selections. [DE 20 at 224-27; DE
52 at 564; DE 60 at 684-87].
a. Prima Facie Case
Defendant argues that Phoenix cannot prove a prima facie case because the selecting
officials were unaware of her Formal Complaint, so it could not have been a contributing factor,
and there could not have been a causal connection between filing the EEO Complaint and the
rejection of her job applications. [DE 91 at 1184-90].
In the last set of briefing, on Phoenix’s motion for summary judgment, the Court noted that
Phoenix had refined her failure to promote allegations to three dates on which she applied for
certain jobs and was not promoted: (1) July 22, 2016; (2) August 19, 2016; and (3) September 8,
2016. [DE 86 at 1138]. Defendant’s motion for summary judgment addresses the job application
rejection allegations for dates (2) and (3).6
6
The Court has already addressed that Phoenix cannot claim retaliation for events that happened before her
protected activity, but that Phoenix complied with the administrative exhaustion requirement for any
alleged discriminatory act occurring June 18, 2016 or later. [DE 20 at 224-227; DE 60 at 684-87].
15
Defendant argues that the selecting individuals were unaware of Phoenix’s EEO activity
and Formal Complaint and that it cannot have been a contributing factor. [DE 91 at 1184-90]. In
her response to Defendant’s motion for summary judgment, Phoenix addresses only two specific
dates that she applied for after she engaged in protected activity: August 15, 2016, and September
8, 2016. [DE 52-8 at 608; DE 94 at 1389-90]. Phoenix points to the temporal proximity between
these non-selections and her Formal Complaint, which is “very close.” Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001); see also Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525
(6th Cir. 2008) (“Where an adverse employment action occurs very close in time after an employer
learns of a protected activity, such temporal proximity between the events is significant enough to
constitute evidence of a causal connection for the purposes of satisfying a prima facie case of
retaliation.”). Defendant points to declarations of the selecting individuals swearing they were
unaware of Phoenix’s EEO activity. [DE 91 at 1184-90]. However, the Court should liberally
construe the plaintiff’s complaint, consider whether those allegations are facially sufficient to
establish a “causal connection,” and “look only to the plaintiff’s evidence to determine whether or
not the plaintiff has established a prima facie case of retaliation.” Ballanger, 238 F.3d 419; Cline,
206 F.3d at 664. Considering this, and that “[t]he burden of establishing a prima facie case is not
an onerous one,” the Court finds that there is sufficient evidence to allow for an inference of a
causal connection between Phoenix filing her Formal Complaint and the rejection of her job
applications. Lewis-Smith, 85 F. Supp. 3d at 906. Thus, Phoenix has proven a prima facie case of
retaliation, and the Court will continue with the next step in the burden-shifting analysis.
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b. Legitimate, Nondiscriminatory Reason
After the plaintiff establishes a prima facie case, the burden shifts to the defendant to
produce a legitimate and non-retaliatory reason for terminating the plaintiff. Rogers, 897 F.3d at
772.
Defendant argues that the army had legitimate and substantial business reasons for not
hiring Phoenix: she “was not the most qualified candidate.” [DE 91 at 1189]. Defendant attached
declarations from the selecting individuals that explain the independent screening process, that
Phoenix was not the most qualified candidate for the panel they served on, and who the most
qualified candidate was and why. [See Id.; DE 91-12; and DE 91-13].
Defendant has thus articulated a legitimate nondiscriminatory reason for rejecting
Phoenix’s job applications and refuted her prima facie case of retaliation. As the Court explained
in its Orders on Summary Judgment, Defendant has met his burden at this step.
c. Pretext
As Defendant has provided a non-retaliatory reason for its actions, “the plaintiff must
[now] prove by a preponderance of the evidence that the reasons offered by the employer were
pretextual.” Rogers, 897 F.3d at 772. Defendant argues that Phoenix cannot prove pretext because
its legitimate and substantial business reasons were not discriminatory or retaliatory, so it was free
to choose among qualified candidates. [DE 91 at 1189].
“[E]mployers are generally ‘free to choose among qualified candidates’” in making their
employment decisions. Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 626 (6th Cir. 2006) (quoting
Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)). “The law does not require employers to make
perfect decisions, nor forbid them from making decisions that others may disagree with.” Hartsel
v. Keys, 87 F.3d 795, 801 (6th Cir. 1996). Rather, a rejected applicant “must show that a reasonable
17
jury could conclude that the actual reasons offered by the defendant were a mere pretext . . ., not
that other reasonable decision-makers might have retained the [rejected applicant].” Rowan v.
Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004) (affirming district court’s
grant of summary judgment to employer in age-discrimination case).
Although Phoenix does not make any arguments specifically about pretext, the Court
liberally interprets her arguments as a pro se Plaintiff. She argues that she was a member of a
protected class and was qualified for the positions she applied for, and the failure to promote
occurred but for her protected activity. [DE 94 at 1389]. She argues that “Defendant hired under
prohibited practices, as the ‘HRC’s appointment was done illegally.’” [Id. at 1390]. The only
evidence Phoenix attaches on this claim is a “Union Grievance” in which “The Union believes that
the appointment of Roger F. Deon . . . was done illegally for” a job announcement posted July 28,
2018. But this evidence is unrelated to any of her claims. Phoenix has presented no evidence that
suggests Defendant’s reasons amount to pretext. See Hopkins v. Canton City Bd. of Educ., 477 F.
App’x 349, 357 (6th Cir. 2012) (“she cannot show pretext because she presents no admissible
evidence of her competitors’ qualifications”). The court thus GRANTS Defendant’s Motion for
Summary Judgment [DE 91] on Phoenix’s job application rejection claim.
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IV.
CONCLUSION
Accordingly, for the stated reasons, IT IS ORDERED that Defendant’s Motion for
Summary Judgment [DE 91] is GRANTED.
February 9, 2023
Cc: Counsel of Record
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