Scheske v. University of Michigan Health System
Filing
33
ORDER granting defendant's 24 Motion for Summary Judgment. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Joan Scheske,
Case No. 13-13345
Plaintiff,
Honorable Nancy G. Edmunds
v.
University of Michigan Health System,
Defendant.
/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This Title VII retaliation case arises out of Plaintiff Joan Scheske’s employment at
Defendant University of Michigan Health System. Plaintiff argues that she was terminated
in retaliation for raising gender discrimination concerns in a presentation to a supervisor.
Defendant argues that Plaintiff’s presentation was not a protected activity under Title VII.
For the reasons stated below, this Court GRANTS Defendant’s motion for summary
judgement and DISMISSES Plaintiff’s complaint with prejudice.
I.
Facts
A. Plaintiff’s Employment Prior to August 29, 2012
Plaintiff was originally hired in January 2008 as a Senior Financial/Business Analyst
in the University of Michigan Medical School’s Department of Finance. She worked in that
role until October 2009, when she was promoted to Senior Financial Manager. (Pl.’s Resp.,
Ex. 3.) Following a restructuring that combined the University of Michigan Medical School’s
finance department with the University of Michigan Hospital’s finance department, Plaintiff
sought employment in the Department of Surgery, chaired by Dr. Michael Mulholland. (Id.,
Ex. 6 at 26.)
Plaintiff accepted the new position in April 2010 following a formal offer from David
Mohr, Chief Administrator of the Department of Surgery. (Def.’s Mot., Ex. G at 2-3.) Her
working title was Director of Strategy and Business Development, and her market title was
Market Research Analyst Lead. (Pl.’s Resp., Ex. 4.)1 In this role, Plaintiff’s direct supervisor
was David Mohr. She also had weekly meetings with Dr. Mulholland to review her
assignments and work. (Id., Ex. 6 at 41.)
Although Plaintiff had the working title of a director, her market title was only that of
an analyst. She believed that her market title was not reflective of her actual responsibilities
and that her salary was therefore too low. (Id. at 54.) She alleges that she researched the
market titles of both male and female hires in the Department of Surgery and determined
that women were being given lesser market titles than men. (Pl.’s Resp., Ex. 6 at 54.) She
also claims that she had multiple meetings with David Mohr where she discussed how she
thought that she did not have an appropriate market title for her responsibilities. (Id.) She
did not use the term “gender discrimination” in these discussions, but she claims that she
did describe “the definition of it” to him. (Id.)
On August 21, 2012, Plaintiff met with Dr. Mulholland for one of their weekly
meetings. At this meeting, they discussed Plaintiff’s market title and her concerns with it.
1
At the University of Michigan, a person’s working title is the title that is presented to the
public (e.g., on business cards, in an email signature, or on the department’s website).
(Pl.’s Resp., Ex. 7 at 17.) The market title is only used internally to determine pay scale and
possible levels of progression. (Id. at 16.) Working titles are used because market titles can
be generic and not as well understood by the public. (Id. at 17.)
2
Dr. Mulholland informed Plaintiff that the Human Resources Department reviewed her
market title in February 2011 and deemed it appropriate. The discussion then turned to
David Mohr. Plaintiff and Defendant have different recollections of this discussion.
Defendant claims that Plaintiff described David Mohr as “ill-intended, illogical, ill-informed
and incompetent.” (Def.’s Mot., Ex. J at 2.) Plaintiff admits that she criticized David Mohr,
but only described him as being “disingenuous.” (Pl.’s Resp., Ex. 6 at 116.) Plaintiff also
claims that she “factually described what [she] believed to be gender discrimination and pay
equity” at that time.2 (Id.) Defendant claims that Dr. Mulholland then informed Plaintiff that
her criticism of David Mohr was unjustified and that she would have to adjust her behavior
if she wished to continue working in the Department of Surgery. (Def.’s Mot., Ex. J at 2.)
The next day, Plaintiff had a performance review with David Mohr. In the review,
David Mohr gave Plaintiff a rating of “exemplary” in every category. (Pl.’s Resp., Ex. 9.) He
wrote that Plaintiff “has performed at an exemplary level,” that she “has developed key
relationships, throughout the University and beyond,” and that “the department is fortunate
to have [her].” (Id. at 6.) He also gave Plaintiff high ratings for the categories “easy to
approach and talk to,” “listens well,” and “builds rapport; interacts with staff members in a
manner that is engaging and non-threatening.” (Id. at 8.) He later testified that he did not
believe that Plaintiff had intercommunication problems with anyone in the department at
that time. (Pl.’s Resp., Ex. 10 at 17.)
B. Plaintiff’s August 29th Meeting With Dr. Mulholland
2
Plaintiff later claimed in her deposition that she never discussed gender discrimination
with Dr. Mulholland prior to their meeting on August 29, 2012. (Pl.'s Resp., Ex. 6 at 178.)
3
Plaintiff met with Dr. Mulholland again on August 29th. At this meeting, Dr. Mulholland
informed Plaintiff that he had considered her concerns, but that her market title was not
going to be changed to director. Plaintiff again objected to this and wished to make a
presentation to Dr. Mulholland to express her viewpoint. (Pl.’s Resp., Ex. 6 at 183; Ex. 12
at 2-3.) Plaintiff testified that she prepared the presentation to “express concern about
gender discrimination and pay inequity.” (Id., Ex. 6 at 58.) The topics that she planned on
covering were “role specifics, titling, issue history and role definition . . . titling prior to
joining the department and the rationale that was provided for under titling.” (Id. at 183.) Dr.
Mulholland agreed to let Plaintiff make the presentation as long as it did not discuss David
Mohr and his prior decisions. (Pl.’s Resp., Ex. 6 at 180.)
The title of the presentation is “Staffing.” (Pl.’s Resp., Ex. 11 at 1.) It has a total of 26
slides. The presentation first discusses the history of her “titling issue” and her transition
to the Department of Surgery. (Id. at 3-4.) The presentation then describes the rationales
given to her by David Mohr for not giving her a market title of director. The slides repeatedly
refer to the rationales as being “disingenuous,” “irrational,” and “illogical.” (Id. at 3, 5, 7-13,
20, 25.)
The presentation also compares Plaintiff’s situation with that of others in the
department, both men and women. Slide 10, under the bullet point titled “Inconsistent
Treatment,” discusses how two men, Charles Ridenour and David Mohr, both joined the
Department of Surgery and obtained the market title of director. Slide 11 discusses David
Mohr and Charles Ridenour again. It also states that another male employee, Todd
Bridges, received a market title change to a management level position upon joining the
4
department, while a female employee, Tanya Koltayr, had her market title changed from
a management to a staff role upon entering the department. Slide 12 addresses the
rationale that Plaintiff cannot have the market title of director because she reports to David
Mohr and there are no directors who report to other directors. To counter this, the slide
describes both men and women who report to David Mohr but have nonetheless been
given the market title of director.
Aside from those three slides, there are no other comparisons made to other
employees, male or female. The presentation never uses the words “discrimination,”
“gender,” or “sex,” and it never states that the department treats men differently than
women. No reference is ever made to Plaintiff’s gender or any of the employees’ genders.
The presentation also never states that Plaintiff nor any other employee has ever been
denied the market title of director nor has experienced any discriminatory treatment
because they are women.
The remainder of the slides further describe the history of why Plaintiff has been
denied the market title of director, her reasons for why this denial has been incorrect, and
the limitations of not being a director. There is no mention of gender in these slides. Slide
16 is titled “Intentional Prevention of Advancement,” but it makes no reference to gender.
Plaintiff testified that during the presentation, Dr. Mulholland did not make any comments
except on the slide comparing the definition of director and analyst in the University of
Michigan. (Pl.’s Resp., Ex. 6 at 188; Ex. 11 at 14.) At that point, they discussed why Dr.
Mulholland believed Plaintiff did not meet the qualifications for having the market title of
director. (Pl.’s Resp., Ex. 6 at 188-89.)
5
Plaintiff testified that at the end of the presentation, Dr. Mulholland said, “we’re done,”
went over to his desk, and did not say anything else to Plaintiff. (Id. at 196.) In an email
sent on September 4th, however, Plaintiff indicated that Dr. Mulholland suggested that she
should resign from her position if she could not work within the structure of the department.
(Id., Ex. 12, at 1-2.)
C. Plaintiff’s Termination
The day following Plaintiff’s presentation, August 30, 2012, Dr. Mulholland informed
Stephanie Schroeder, Director of Human Resources for the Department of Surgery, that
Plaintiff could no longer work in the department. (Pl.’s Resp., Ex. 16 at 10-11; Ex. 7 at 27.)3
At that time, Dr. Mulholland did not intend to terminate Plaintiff from the University entirely.
He testified that he told Stephanie Schroeder to “help [Plaintiff] find a new position
potentially within the University of Michigan and to offer [her] up to six months salary as a
way of helping her over to that transition.” (Pl.’s Resp., Ex. 16 at 27.) Stephanie Schroeder
also testified that she understood that Dr. Mulholland wanted Stephanie to create a strategy
for removing Plaintiff from the department, but that Plaintiff could still remain at the
University. (Id., Ex. 7 at 27.) At the time, there were no positions known to be available for
Plaintiff to be placed into, and no proposal was made to Plaintiff regarding her termination.
(Id., Ex. 16 at 27-28.)
3
According to David Mohr, Dr. Mulholland had discussed with him the possibility that
Plaintiff might not be able to continue working in the department because of her actions
prior to her August 29th presentation. (Pl.’s Resp., Ex. 10 at 30-31.) However, the decision
was not solidified until after the presentation. (Id. at 31.) David Mohr also testified that the
decision to separate Plaintiff from the department was made mutually between himself and
Dr. Mulholland. (Id.)
6
Although Plaintiff thought that she might be terminated following her presentation, she
did not know that she was being removed from the department until September 4th. On that
day, Dr. Mulholland sent Plaintiff an email informing her that “it would be best for you to
seek further employment outside of the Department of Surgery” and referred her to
Stephanie Schroeder to work out an exit plan. (Pl.’s Resp., Ex. 12 at 2.) Plaintiff responded
to Dr. Mulholland’s email expressing her displeasure in the decisions regarding her market
title. (Id. at 1-2.) She also refers to instances of “discriminatory behavior” against her, but
does not make any reference to gender or sex. (Id. at 1.)
After a series of emails, Stephanie Schroeder and Plaintiff scheduled an exit strategy
meeting to take place at 1:00 PM on September 5th. Before that meeting took place,
however, Plaintiff contacted the University’s OIE to file a complaint of gender discrimination,
sexual harassment, and retaliation in violation of the University of Michigan’s nondiscrimination policy. The OIE then investigated Plaintiff’s claims and told the Department
of Surgery not to take any action against Plaintiff during the investigation.
The investigation ended on November 7th. The OIE concluded that Plaintiff could not
establish any of her claims. (Def.’s Mot. Ex. N; Ex. O.) Directly following the end of the
investigation, David Mohr emailed Plaintiff to inform her to attend a Disciplinary Review
Conference (DRC)4 regarding her employment the next day. (Id., Ex. G at 3.) At the
meeting, Defendant offered Plaintiff a settlement offer of four months severance pay, a
4
A DRC is “a meeting to provide an opportunity for discussion with an employee whose
termination at the initiative of the University is contemplated. The conference will include
an oral or written statement of the alleged misconduct or performance concerns and allow
an opportunity for the employee to respond. The employee will be informed of the outcome
in a timely fashion.” University of Michigan Standard Practice Guide § 201.12: Discipline,
http://spg.umich.edu/policy/201.12.
7
reference letter, and the ability to be re-hired at the University of Michigan (except for the
Department of Surgery). (Pl.’s Resp., Ex. 7 at 28-31; Ex. 10 at 26-27.) This was a “take-itor-leave-it” offer. If the plaintiff did not accept it, she would be terminated with no pay and
no chance of re-hire at the University. (Pl.’s Resp., Ex. 7 at 30.) Although she was given
21 days to consider the offer, (Id.), Plaintiff refused it that day. (Id., Ex. 10 at 27.) David
Mohr sent Plaintiff a termination letter on November 8th, and she was terminated effective
November 29th. (Id., Ex. 15.) In Plaintiff’s termination letter, David Mohr stated that Plaintiff
“indicated that [she was] unwilling to work within the established structure” of the
department, and that the reason for her termination was her “inability to work with me in a
collaborative manner” and that her disagreements concerning her market title were
“expressed in such an unreasonable manner that [she] undermined the possibility of
maintaining a collegial and productive working relationship in the future.” (Id.)
D. Procedural History
Plaintiff filed a complaint with the EEOC on November 27, 2012 alleging
discrimination based on sex, retaliation, and violation of the Equal Pay Act. (Def.’s Mot., Ex.
Q.) On May 7, 2013, the EEOC issued a Notice of Right to Sue. (Id.) Plaintiff filed this
action on August 5, 2013, where she alleged three counts: (I) discrimination on the basis
of sex; (II) retaliation; and (III) violation of the Equal Pay Act. (Id., Ex. A.) On April 29, 2014,
Plaintiff voluntarily dismissed Counts I and III. (Id., Ex. R.)
II.
Summary Judgment Standard
8
Summary judgment is proper when the movant "shows that there is no genuine
dispute as to any material fact, and that the movant is entitled to judgment as a matter of
law." U.S. SEC v. Sierra Brokerage Services, Inc., 712 F.3d 321, 326-27 (6th Cir. 2013)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986)) (quotations omitted).
When reviewing the record, "the court must view the evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in its favor." Id. Furthermore,
the "substantive law will identify which facts are material, and summary judgment will not
lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Id.
When considering the material facts on the record, a court must bear in mind that
“[t]he 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.”
Anderson, 477 U.S. at 252.
Moreover, “[i]n order to survive a motion for summary judgment, the non-moving party
must be able to show ‘sufficient probative evidence [that] would permit a finding in [their]
favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of Memphis,
519 F.3d 587, 605 (6th Cir. 2008) (citing and quoting Lewis v. Philip Morris Inc., 355 F.3d
515, 533 (6th Cir. 2004).
III.
Analysis
Title VII prohibits an employer from retaliating against any of its employees for
opposing its discriminatory practices. 42 U.S.C. § 2000e-3(a). Plaintiffs alleging retaliation
under Title VII can do so with either direct evidence or circumstantial evidence. Laster v.
9
City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). In this case, Plaintiff seeks to prove
her claim using circumstantial evidence of retaliation. These claims are analyzed under the
framework of McDonnell Douglass Corp. v. Green, 411 U.S. 792, 801-805 (1973).
Under McDonnell Douglass, Plaintiff must first establish a prima facie case of
discrimination. In the retaliation context, this requires Plaintiff to show that: (1) she engaged
in a protected activity; (2) Defendant knew of her protected activity; (3) Defendant
thereafter took an adverse employment action against her; and (4) there is a causal
connection between the protected activity and the adverse employment action. Ladd v.
Grand Trunk W. R.R., 552 F.3d 495, 502 (6th Cir. 2009).
If Plaintiff succeeds in establishing her prima facie case, a presumption of unlawful
retaliation arises, and the burden shifts to Defendant to produce a legitimate, nonretaliatory reason for its action. Id. If Defendant is able to produce such a reason, the
burden shifts back to Plaintiff to show that Defendant’s reason was not the true reason for
the adverse action and was merely pretexual. Id. Despite the shifting burdens of the
McDonnell Douglass framework, Plaintiff always bears the ultimate burden of persuasion.
Laster, 746 F.3d at 731.
A. Plaintiff’s Presentation Is Not a Protected Activity
Plaintiff argues that she engaged in a protected activity when she made her
presentation to Dr. Mulholland on August 29th. There are two types of protected activity
under Title VII. First, under the “opposition clause,” employers cannot retaliate when an
employee has “opposed any practice made an unlawful employment practice under [Title
VII].” 42 U.S.C. § 2000e-3(a). Second, under the “participation clause,” employers also
cannot retaliate when an employee has “participated in any manner in an investigation,
10
proceeding, or hearing under [Title VII].” Id. For an activity to fall under the participation
clause, “the instigation of proceedings leading to the filing of a complaint or charge . . . is
a prerequisite.” Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1313 (6th
Cir. 1989). Activities prior to the instigation of statutory proceedings are analyzed under
the opposition clause. Id.
Because Plaintiff’s presentation to Dr. Mulholland occurred before she filed her
complaint with the EEOC, she must show that the presentation was opposition activity.
“Oppose” is not defined in Title VII. It therefore takes its ordinary meaning: “to resist or
antagonize . . .; to contend against; to confront; resist; withstand.” Crawford v. Metro. Gov’t
of Nashville and Davidson County, Tenn., 555 U.S. 271, 276 (2009) (citing Webster’s New
International Dictionary 1710 (2d ed. 1958)). This includes “complain[ts] to anyone
(management, unions, other employees, or newspapers) about allegedly unlawful
practices.” Simpson v. Vanderbilt Univ., 359 F. App’x 562, 570-71 (6th Cir. 2009)(quoting
Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000)).
Despite this broad definition, Title VII does not protect all “opposition” activity. Holden
v. Owens-Illinois, Inc., 793 F.2d 745, 751 (6th Cir. 1986). For the activity to be protected,
a plaintiff must put her employer on notice that she is opposing a practice made unlawful
by Title VII. Brown v. VHS of Michigan, Inc., 545 F. App’x 368, 373 (6th Cir. 2013)(citing
Booker, 879 F.2d at 1313). That is, the plaintiff must make it clear that she is opposing
discrimination against a protected class. Id. at 374; Speck v. City of Memphis, 370 F. App’x
622, 626 (6th Cir. 2010). “An employee may not invoke the protections of the Act (Title VII)
by making a vague charge of discrimination.” Brown, 545 F. App’x at 373 (quoting Booker,
879 F.2d at 1313). Accordingly, complaints about management practices or decisions
11
rather than discrimination against a protected class are not protected activities under Title
VII. Booker, 879 F.2d at 1313; see also Balding-Margolis v. Cleveland Arcade, 352 F. App’x
35, 44-45 (6th Cir. 2009); Willoughby v. Allstate Ins. Co., 104 F. App’x 528, 531 (6th Cir.
2004) (per curium).
Plaintiff’s presentation to Dr. Mulholland is not a protected activity because it did not
put Defendant on notice that Plaintiff was opposing a discriminatory practice. The
presentation is essentially a complaint about the decision not to give Plaintiff the market title
she preferred. That is not a protected opposition activity. See Willoughby, 104 F. App’x at
531 (“The district court properly granted summary judgment because the letter was
contesting the correctness of a decision made by his employer rather than asserting
discrimination.”) (internal quotations omitted). The presentation never mentions the term
“discrimination” and it also does not state that Defendant treats women in a discriminatory
manner. Gender is never explicitly mentioned during the course of the presentation. See
Brown, 545 F. App’x at 374 (holding that an employee’s complaint regarding her higher
paid subordinates was not protected conduct in part because “the racial identification of [the
employee’s] subordinates does not appear in the emails and neither does the word
‘discrimination.’”). Although Plaintiff was not required to use legal jargon in her presentation
to gain the protection of Title VII, see Minevich v. Spectrum Health-Meier Heart Ctr., No.
1:12-CV-1358, 2014 WL 869186, at *10 (W.D. Mich. Mar. 6, 2014), she needs to at least
present sufficient evidence for a reasonable jury to infer that her presentation opposed
gender discrimination, and she has not done so.
Plaintiff did testify in her deposition that although she never used the words “gender”
or “discrimination” during the course of her presentation to Dr. Mulholland, she did
12
“describe gender discrimination” to him. (Pl.’s Resp., Ex. 6 at 57.) Viewed in a vacuum, this
statement might preclude summary judgment in favor of Defendant. In determining whether
there is a genuine issue of material fact, however, this Court must not view the evidence
in a vacuum, but look to the record as a whole. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986) (“Where the record taken as a whole could not lead a
rationale trier of fact to find for the nonmoving party, there is no ‘genuine issue for
trial.’”)(emphasis added); Wilson v. Cleveland Clinic Foundation, No. 13-3258, 2014 WL
4397205, at *10 (6th Cir. Sept. 8, 2014)(“The dissent's election to close its eyes to the
entirety of the record and instead view in isolation [plaintiff's evidence] . . . flies in the face
of longstanding and controlling precedent.”). Taking the record as a whole, this testimony
does not create a genuine issue as to whether Plaintiff’s engaged in a protected activity.
Plaintiff’s presentation demonstrates how Plaintiff described her complaints to Dr.
Mulholland. In that presentation there is no reference to gender discrimination that could
give notice to Defendant that Plaintiff was opposing gender discrimination rather than a
lawful management decision.
Plaintiff’s presentation is similar to the employees’ letters in Willoughby v. Allstate Ins.
Co., 104 F. App’x 528 (6th Cir. 2004) and Majewski v. Automatic Data Processing, Inc., 274
F.3d 1106 (6th Cir. 2001). In Willoughby, a white employee claimed that he was retaliated
against for opposing race discrimination. The employee wrote a letter to his employer
contesting a demotion he received after making an inappropriate and racist joke. 104 F.
App’x at 529. The letter contained twelve paragraphs, but in one of those paragraphs he
wrote that the incident leading to his demotion “did not start anywhere close to being a
racial event” but that it had been escalated to that level. Id. at 531. He also wrote that
13
although the employer’s workforce was mostly African American, the vast majority of
employees who left the workforce were white. Id. The court held this letter was “contesting
the correctness of a decision made by his employer rather than asserting discrimination,”
and that it was “insufficient to constitute opposition to an unlawful employment practice.”
Id. (quoting Booker, 879 F.3d at 1313).
In Majewski, an employee wrote a letter to his corporate office complaining about the
conduct of his supervisor. 274 F.3d at 1110. The employee alleged that his supervisor
singled him out for mistakes that other employees made without punishment and wrote, “I
was not doing anything different than my co-workers and I felt like they were trying to fire
me before I was 40.” Id. The court held that this was not protected conduct opposing age
discrimination. The reference to his age was only an “isolated statement” made in the
context of a letter that criticized the supervisor for mistreating employees “both over and
under the age of 40.” Id. It did not “transform the letter into a protected complaint
concerning age discrimination.” Id.
Here, any reference to gender in Plaintiff’s presentation is similarly only an isolated
statement that does not indicate that her presentation is objecting to gender discrimination.
The presentation does compare Plaintiff’s situation with that of men in the department.
(Pl.’s Resp., Ex. 11 at 10-11.) The presentation, however, also compares Plaintiff’s situation
with that of other women who Plaintiff believes have been treated more favorably than she
was. (Id. at 12.) The mere mention and comparison of men in the presentation does not
make it a protected activity opposing gender discrimination. See Majewski, 274 F.3d at
1110; Willoughby, F. App’x at 531. Furthermore, the mention of male employees is only a
minor part of a much larger discussion of the reasons why Plaintiff believed the decision
14
to not change her market title was incorrect. The presentation contests the correctness of
Defendant’s decision to not provide Plaintiff with the market title of director, not any
unlawful employment practice. It is therefore not a protected activity under Title VII. See
Booker, 879 F.2d at 1313.5
B. Even If the Presentation Is a Protected Activity, Plaintiff Cannot Establish
Pretext
Even if Plaintiff could establish that her August 29th presentation was a protected
activity, she has not presented sufficient evidence that the legitimate, non-discriminatory
reasons for the decision to terminate her employment on August 30th were pretextual.
Defendant has offered legitimate reasons for terminating Plaintiff. Plaintiff criticized David
Mohr multiple times, including in her presentation, and Dr. Mulholland warned her against
doing this. (Pl.’s Resp., Ex. 6 at 116, 180; Ex. 11.) David Mohr and Dr. Mulholland also
testified that Plaintiff could no longer work within in the structure of the department based
on her repeated criticisms and disagreements. (Id., Ex. 10 at 26, 28; Ex. 16 at 20, 28-29.)
And in Plaintiff’s termination letter, David Mohr stated that the reason for the decision to
terminate Plaintiff was her “inability to work with me in a collaborative manner” and that her
disagreements concerning her market title were “expressed in such an unreasonable
5
Plaintiff also argues that she was retaliated against for filing a complaint with the OIE.
Although this complaint is a protected activity, Laster, 746 F.3d at 730, Plaintiff cannot
establish a causal connection here because the decision to terminate Plaintiff was made
prior to her complaint. Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S.Ct. 2517,
2534 (2013)(requiring but-for causation in Title VII retaliation cases). Plaintiff also cannot
establish that the final terms of her termination—severance pay and no chance of rehire
at the University—were retaliation for the complaint as she was terminated with these terms
because she rejected the settlement offer proposed to her at the DRC.
15
manner that [she] undermined the possibility of maintaining a collegial and productive
working relationship in the future.” (Id., Ex. 15.)
Because Defendant has met its burden of showing a legitimate, non-discriminatory
reason, the burden shifts to the Plaintiff to show that those reasons are actually pretextual
and that the real reason is retaliation. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507508 (1993). There are three ways Plaintiff can demonstrate pretext. She can show that
Defendant’s stated reasons: (1) have no basis in fact; (2) were not the actual reason for the
termination; or (3) are insufficient to warrant the challenged conduct. Michael v. Caterpillar
Financial Services Corp., 496 F.3d 584, 597 (6th Cir. 2007).
Plaintiff presents three pieces of evidence to support her argument. None allow a
reasonable jury to find that Defendant’s legitimate reasons were pretext. First, Plaintiff
offers evidence that Dr. Mulholland testified in his deposition that the ultimate reason for
Plaintiff’s termination from the University was that she “made a series of false statements
that were the basis of the decision that she would no longer be a part of the University of
Michigan’s employment.” (Pl.’s Resp., Ex. 16 at 20.) This statement cannot show that
Defendant’s reasons for terminating Plaintiff on August 30th were pretext. In that testimony,
Dr. Mulholland was referring to Plaintiff’s statements made in her complaint to the OIE after
August 30th. Plaintiff even characterizes Dr. Mulholland’s testimony in this way in her brief.
(Pl.’s Resp. at 19.) Plaintiff’s complaint to the OIE could not have been a part of Dr.
Mulholland’s decision making on August 30th.
Second, Plaintiff argues that David Mohr’s positive performance review of Plaintiff on
August 22nd shows that he was lying when he wrote in the termination letter that she could
no longer work with him in a collaborative manner. The performance review is positive and
16
expresses that “the department is fortunate to have [Plaintiff].” (Id., Ex. 9 at 6.) The review,
however, was written before the actions that formed the basis of the decision to terminate
Plaintiff. Plaintiff criticized David Mohr to Dr. Mulholland only one day before the
performance review. Plaintiff has presented no evidence that David Mohr was even aware
of her actions at the time the review was written. The review was also written before
Plaintiff’s August 29th presentation to Dr. Mulholland. Plaintiff cannot establish pretext from
a performance review written before the reasons stated for her termination occurred. See
Michael, 496 F.3d at 597, 599 (holding that a positive performance review occurring prior
to the events the employer offered as justification for the alleged adverse action could not
establish pretext).
Third, Plaintiff similarly argues that David Mohr was lying in his termination letter
because the OIE investigation report states, “[David Mohr] stated that his relationship with
[Plaintiff] is odd and strained, and explained that personality differences with [Plaintiff]
interfere with their ability to have open and relaxed communication. [David Mohr] added
that he and [Plaintiff] have been able to work together.” (Pl.’s Resp., Ex. 14 at 8.) Plaintiff
characterizes this as David Mohr admitting that even though his relationship with Plaintiff
was poor, he could still work with her. Plaintiff argues that if this is true, then he must have
been lying in his termination letter. There are two problems with this argument. First, the
statement in the OIE report is likely hearsay. N. Am. Specialty Ins. Co. v. Myers, 111 F.3d
1273, 1283 (6th Cir. 1997) (“The above testimony cannot create a genuine issue of material
fact because it is inadmissible hearsay.”). Second even if it is not hearsay, a reasonable
juror could not infer from this statement that David Mohr believed he still had the ability to
work with Plaintiff. The statement indicates that David Mohr, at one point in time, could
17
work with Plaintiff. It does not provide evidence for the assertion that David Mohr thought
he could still work with Plaintiff from that point forward and that he was therefore lying in
his termination letter.
Plaintiff has not provided evidence from which a reasonable jury could find that
Defendant’s proffered legitimate reasons for the decision to terminate Plaintiff on August
30th are actually a pretext for retaliation.
IV.
Conclusion
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED
and Plaintiff’s complaint DISMISSED with prejudice.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: October 2, 2014
I hereby certify that a copy of the foregoing document was served upon counsel of
record on October 2, 2014, by electronic and/or ordinary mail
s/Carol J. Bethel
Case Manager
18
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