Mitchell v. Federal Reserve Bank of Cleveland

Filing 24

Opinion and Order denying Defendant Federal Reserve Bank of Cleveland's Motion for summary judgment (Related Doc #17 ). Parties shall file a joint notice by noon on 5/15/2013, whether they still stand by their Motion to Continue (ECF#23 ) in light of the Court's Opinion and Order. Judge Christopher A. Boyko on 5/14/2013.(R,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRIAN C. MITCHELL,
Plaintiff,
vs.
FEDERAL RESERVE BANK
OF CLEVELAND,
Defendant.

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CASE NO. 1:12CV1059
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #17) of Defendant,
Federal Reserve Bank of Cleveland, for Summary Judgment. For the following reasons, the
Motion is denied.
I. FACTUAL BACKGROUND
Plaintiff, Brian Mitchell, began his employment with Defendant, Federal Reserve
Bank of Cleveland, on July 5, 2005. At the time of his termination, Plaintiff was a Senior
Operations Analyst in the Cash Department. His duties included analyzing data from the
Standard Cash Automation database and preparing statistical reports for the Board of

Governors. If the data and balances in these reports did not reconcile with existing
information, Plaintiff was responsible for investigating and correcting the errors.
The Federal Reserve Bank accepts deposits of excess and unfit currency and processes
currency orders from financial institutions. The term “new” currency is used to refer to
money printed by the Bureau of Engraving and Printing that has not been circulated in the
general public. The term “fit” currency refers both to currency that has been circulated in the
general public, as well as “new” currency that has been received from another Reserve Bank,
but not yet circulated. A team in the Cash Department is assigned to each container of “new”
currency; and is responsible for recording the serial numbers of “new” currency with a
denomination of $20.00 or more. The assigned team remains accountable for any balance
inconsistencies or any other errors related to a container. Plaintiff was responsible for
preparing statistical reports for the Board of Governors, reflecting the amount of “new” and
“fit” currency the Bank held in its inventory.
Defendant has a written progressive discipline policy set forth in its Employee
Handbook; and Plaintiff acknowledged receipt of the Handbook on July 5, 2005. (ECF DKT
#19-4, p. 39).
On February 13, 2009, an oral disciplinary notice was issued against Plaintiff for
failure to complete an assigned task. On March 17, 2009, Plaintiff received a written warning
for performance errors and for failure to complete critical tasks in a timely manner. Plaintiff
does not dispute these disciplinary incidents.
On July 24, 2009, Plaintiff presented Pam Lucey, Defendant’s Human Resources
Manager, with a letter from his Cleveland Clinic physician, stating that he had been

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diagnosed with the condition known as narcolepsy with cataplexy, and requesting reasonable
accommodations necessary to perform his duties as a Senior Operations Analyst.
On August 13, 2009, a Probation Progressive Disciplinary Action Notice was issued
to Plaintiff, because Plaintiff committed expense and accounting data errors in the month of
July; and because, despite the earlier written warning, Plaintiff’s job performance continued
to be unsatisfactory.
On August 24, 2009, Plaintiff delivered an email and a letter to Mike Vangelos,
Defendant’s Ombuds Officer. Plaintiff asked Vangelos to commence the EEO complaint
process; because while his request for reasonable accommodation was pending, he was placed
on probation. Plaintiff stated that the “discipline constituted an act of discrimination against
me because of my disability.” (ECF DKT #17-2, Ex. BB).
On November 6, 2009, the numbers for “new” and “fit” currency held in the Bank’s
inventory did not balance in Plaintiff’s report. According to Plaintiff, he asked Deborah
McCormack, an employee in the Cash Department, to remove containers from the vault to
permit a visual inspection of the currency. She told him that the visual inspection process
would take too much time, particularly since it was the end of the day. Plaintiff asserts that
McCormack allowed him to access the internal Table Guard computer application and to
change the classification of five randomly-selected containers from “new” to “fit.” Plaintiff
did not alert the team assigned to these containers; serial numbers were not properly recorded;
and currency, upon which the Board of Governors had placed a “hold,” was allowed into
circulation.
Michael Kelly, Manager of the Bank’s Cash Department at the time, conducted an

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investigation into the events of November 6, 2009. Employees, like McCormack, as well as
Plaintiff’s supervisors, denied instructing and/or authorizing Plaintiff to change random
containers of “new” currency to “fit.” As a result, on November 20, 2009, Kelly
recommended the immediate termination of Plaintiff’s employment for falsification of
currency inventory data and breach of trust. (ECF DKT #19-5, Ex. V). The recommendation
was approved and Plaintiff’s termination was effective on November 20, 2009. Plaintiff
received his official notification, by letter dated November 23, 2009, from Pam Lucey in
Human Resources.
In his Complaint, Plaintiff alleges claims of retaliation and discrimination on the basis
of disability under the Americans with Disabilities Act (“ADA”) relating to his November 20,
2009 discharge. Defendant moved for summary judgment on February 19, 2013. In his
response on March 18, 2013, Mitchell advised the Court and Defendant that he will not
pursue his claims of disability discrimination; but that his retaliation claim remains viable.
Defendant’s Reply Brief was filed on April 2, 2013.
II. LAW AND ANALYSIS
Civil Rule 56 Standard
A summary judgment should be granted if the pleadings, depositions, documents,
electronically stored information, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. See, Fed.R.Civ.P. 56(a) and (c). The burden is on the moving
party to conclusively show no genuine issue of material fact exists, Celotex Corp. v. Catrett,

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477 U.S. 317, 323 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir.1994);
and the court must view the facts and all inferences in the light most favorable to the
nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). Once the movant presents evidence to meet its burden, the nonmoving party may not
rest on its pleadings, but must come forward with some significant probative evidence to
support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at 1347. This Court does
not have the responsibility to search the record sua sponte for genuine issues of material fact.
Betkerur v. Aultman Hospital Ass’n., 78 F.3d 1079, 1087 (6th Cir.1996); Guarino v.
Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir.1992). The burden falls upon
the nonmoving party to “designate specific facts or evidence in dispute,” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party fails to make the
necessary showing on an element upon which it has the burden of proof, the moving party is
entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary judgment is
appropriate depends upon “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.” Amway Distributors Benefits Ass’n v. Northfield Ins. Co., 323 F. 3d 386, 390 (6th Cir.
2003) (quoting Anderson, 477 U.S. at 251-52).
ADA Retaliation
Under the ADA, an employer may not “discriminate against any individual because
such individual has opposed any act or practice made unlawful by [the ADA] or because such
individual made a charge ... under [the ADA].” 42 U.S.C. § 12203(a). The Sixth Circuit
analyzes ADA retaliation claims using the same framework as other statutory retaliation

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claims. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 387 (6th Cir.1999) (noting that the
“essential framework” of retaliation claims under the ADA, Title VII, NLRA and other
statutes remains the same). Where a plaintiff relies upon circumstantial evidence of
retaliation, the McDonnell Douglas/Burdine burden-shifting framework applies.
Prima Facie Elements
To establish a prima facie case of unlawful retaliation, a plaintiff must demonstrate:
(1) he engaged in a protected activity; (2) defendant knew he engaged in this protected
activity; (3) defendant subsequently took an employment action adverse to plaintiff; and (4) a
causal connection between the protected activity and the adverse employment action exists.
Harris v. Metro. Gov’t of Nashville & Davidson Cnty., 594 F.3d 476, 485 (6th Cir.2010);
Abbott v. Crown Motor Company, Inc., 348 F.3d 537, 542 (6th Cir. 2003) (rehearing denied
January 21, 2004). Plaintiff need not prove his case by a preponderance of the evidence at the
prima facie stage. Singfield v. Akron Metropolitan Housing Authority, et al., 389 F.3d 555,
563 (6th Cir.2004). “[T]he burden of establishing a prima facie retaliation case is easily met.”
Id.; Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000).
Employer’s Non-Retaliatory Explanation
Once this [plaintiff’s] showing is made ... the defendant must articulate a
legitimate nonretaliatory reason for its action before the burden shifts back to
plaintiff to show that the proffered reason was not its true reason but merely a
pretext for retaliation. The burden of persuasion remains with the plaintiff
throughout. Harris, 594 F.3d at 285.
In order to satisfy its burden, Defendant “need only produce admissible evidence which
would allow the trier of fact rationally to conclude that the employment decision had not been
motivated by discriminatory animus.” Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248,

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257 (1981). “The burden that shifts to the defendant, therefore, is to rebut the presumption of
discrimination by producing evidence that the plaintiff was [terminated] for a legitimate,
nondiscriminatory reason. The defendant need not persuade the court that it was actually
motivated by the proffered reasons.” Id. at 254. See, Board of Trustees of Keene State
College v. Sweeney, 439 U.S. 24, 25 (1978). “ It is sufficient if the defendant’s evidence
raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Id.
Pretext
When the burden shifts back to Plaintiff, he must demonstrate, by a preponderance of
the evidence, that Defendant’s proffered reasons for the adverse employment action were
pretextual. “A plaintiff can demonstrate pretext by showing that the proffered reason (1) has
no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.” Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d
495, 502 (6th Cir.2009); Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000).
Mitchell’s ADA Retaliation Claim
Defendant Federal Reserve Bank does not dispute that Plaintiff Mitchell was engaged
in a protected activity when he submitted his August 24, 2009 internal complaint to Vangelos,
nor that Plaintiff suffered an adverse employment action when he was terminated on
November 20, 2009.
However, Defendant (through Michael Kelly, Manager of the Bank’s Cash
Department) does not agree that it knew Plaintiff engaged in protected activity. “In fact, I
was unaware that Mitchell allegedly had a disability, that he had made any accommodation
requests or that he had made any internal complaint at the time I recommended his

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termination.” (ECF DKT #17-3, Kelly Declaration, ¶ 11).
According to Sixth Circuit precedent, “direct evidence of such knowledge or
awareness is not required, and ... a plaintiff may survive summary judgment by producing
circumstantial evidence to establish this element of [his] claim.” Mulhall v. Ashcroft, 287
F.3d 543, 552 (6th Cir.2002). Furthermore, “knowledge of a plaintiff’s protected activity can
be inferred from evidence of the prior interaction of individuals with such knowledge and
those taking the adverse employment action.” Mulhall, 287 F.3d at 553 (citation omitted).
The parties present evidence to the Court in their summary judgment briefing which
supports the inference that Defendant knew of Plaintiff’s protected activity. For instance,
Plaintiff met with his supervisor, Patrick Geyer, in early August of 2009, to discuss his
requested accommodations. In his investigation, prior to recommending termination, Kelly
conducted a (in his words) thorough inquiry of “Bank records, emails and reports and
interviewed multiple employees, including Mitchell.” (ECF DKT #17-3, Kelly Declaration, ¶
9). One of the three individuals, which Kelly asked to approve Mitchell’s termination, was
Patrick Geyer. When viewed in the light most favorable to Plaintiff, Geyer’s awareness of
Mitchell’s disability and requests for accommodations, Mitchell’s written complaint made to
Vangelos and forwarded to the Bank’s EEO Officer, and Kelly’s self-described “thorough
investigation” of employees and personnel records, all provide circumstantial evidence
supporting the inference that Defendant knew about Plaintiff’s protected activity. Thus,
Mitchell has satisfied the second prong of his prima facie retaliation case.
Defendant asserts that Plaintiff cannot meet his prima facie burden, since he cannot
offer any evidence of a causal connection other than the mere temporal proximity — three

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months — between his complaint and his termination. Defendant further protests that,
“[f]or every Sixth Circuit decision Mitchell cites in support of his position that three months,
standing alone, is sufficient to establish a causal connection, the Defendant Federal Reserve
Bank of Cleveland (the “Bank”) can offer two that state exactly the opposite.” (ECF DKT
#22, p. 2).
In a recent opinion, Fuhr v. Hazel Park School District, 710 F.3d 668 (6th Cir.2013),
the Sixth Circuit notes that “temporal proximity always plays a role in establishing a causal
connection.” Id. at 675. Further, “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.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516,
525 (6th Cir.2008). Significantly, this Circuit has acknowledged “that temporal proximity of
three months, in combination with increased scrutiny, is sufficient to satisfy the causation
prong.” Hamilton v. Gen. Elec. Co., 556 F.3d 435-36 (6th Cir.2009).
The Court recognizes the complicated state of Sixth Circuit precedential case law on
the issue of temporal proximity in retaliation actions. Yet, in the abundance of caution, the
Court believes it has no choice but to find that the causation prong of Mitchell’s prima facie
case is satisfied by the mere three-month span of time between Mitchell’s internal complaint
and his termination from employment.
Since Plaintiff has satisfied his prima facie retaliation case burden, the Bank must next
articulate a legitimate, non-discriminatory reason for firing him. In his Response, Plaintiff
concedes that Defendant has articulated a non-discriminatory reason for his termination, i.e.,

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falsification and breach of trust. (See Kelly Declaration, ECF DKT #17-3, ¶¶ 9, 11).
The burden now shifts back to Plaintiff to demonstrate, by a preponderance of the
evidence, that Defendant’s proffered reasons for the adverse employment action were
pretextual.
Pretext can be established by noting inconsistencies in the proffered reason for the
adverse employment action. Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 523 (6th Cir.
1997). According to Mitchell, Patrick Geyer informed him of his termination on November
20, 2009, telling him he was being let go for poor performance and for causing the Bank to
violate Board policy. (Mitchell Deposition, ECF DKT #19-2, p. 21). In its July 2, 2010
position statement to the Equal Employment Opportunity Commission, Defendant explained
that Plaintiff “used his authority to access a highly controlled computer application and to
falsify the records of five containers of currency within the Cash database in order to ensure
that the statistical reports that he was preparing balanced.” (ECF DKT #21-4, p. 5). This
conduct violated the Federal Reserve System’s Custody Control Principles and Standards, and
warranted disciplinary action, including dismissal. According to the February 19, 2013
Declaration of Michael Kelly, Plaintiff was terminated due to “falsification of currency
inventory data and breach of trust.” (ECF DKT #17-3, ¶ 9). Viewed in a light most favorable
to the non-movant, these inconsistent statements evidence shifting reasons for the adverse
employment action taken against Plaintiff.
In his deposition, Plaintiff testifies that Deborah McCormack, a Cash Department
employee, said to him: “We don’t have time for us to pull all these containers out. Just
change these five containers.” (ECF DKT #19-2, p. 14). In his Affidavit, Mitchell states: “I

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fully explained the situation and problem to Kelly, and described to him, in detail, how I had
reclassified the currency in five containers of currency while proceeding under the auspices of
Deborah McCormack. * * * Kelly accepted my explanation and proceeded to work with me to
bring the problem account into balance.” (ECF DKT #21-1, ¶¶ 3-4). Based upon these pieces
of evidence, Plaintiff argues a jury could find Defendant’s proffered reasons for termination
were not reasonably or honestly held.
Deborah McCormack denies authorizing Plaintiff’s actions, and testifies that she
simply does not recall. (ECF DKT #21-5, p. 59). As for the interaction with Kelly, which
allegedly occurred the day after Plaintiff reclassified the currency, Defendant argues it could
not have taken place. The day after November 6, 2009 was a Saturday and the Bank was not
open for business. (ECF DKT #22, p. 10).
The Court finds that this credibility dispute over the circumstances surrounding
Plaintiff’s actions on November 6, 2009 is a matter properly left to the trier of fact.
“Courts have recognized that in discrimination and retaliation cases, an employer’s
true motivations are particularly difficult to ascertain.” Singfield, 389 F.3d at 564, quoting
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983). “We agree
that caution should be exercised in granting summary judgment once a plaintiff has
established a prima facie inference of retaliation through direct or circumstantial evidence.”
Singfield, 389 F.3d at 564.
In view of this Court’s obligation to proceed warily when analyzing pretext, and in
consideration of all the evidence presented, the Court finds that Plaintiff has demonstrated a
genuine material factual issue for the jury as to Defendant’s proffered reasons for terminating

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his employment.
III. CONCLUSION
In light of the foregoing analysis, the Motion (ECF DKT #17) of Defendant, Federal
Reserve Bank of Cleveland, for Summary Judgment, on Plaintiff Brian C. Mitchell’s only
remaining claim of ADA retaliation, is denied.

IT IS SO ORDERED.
DATE: 5/14/13

S/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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