Carter v. PNC Bank, N.A.

Filing 23

Memorandum Opinion and Order granting defendant's Motion for summary judgment (Related Doc # 19 ). Judge Patricia A. Gaughan 9/22/16(C,KA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Danielle Carter,
Plaintiff,
vs.
PNC Bank, N.A.,
Defendant.

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CASE NO. 1:15 CV 1817
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon Defendant PNC Bank’s Motion for Summary
Judgment (Doc. 19). This case arises under Title VII of the Civil Rights Act of 1964 and the
Family Medical Leave Act (“FMLA”). For the following reasons, PNC’s motion is granted.
FACTS
A. Carter’s hiring and training
On August 22, 2013, PNC hired plaintiff Danielle Carter, an African-American, as a
Customer Service Associate (“CSA”) at its Warren Village branch office in Cleveland. Carter
then applied for an open CSA position at PNC’s branch office located in Strongsville, Ohio (the
“Pearl Shurmer Branch”). Branch Manager Patrick Vogt interviewed and hired Carter as a

full-time CSA at the branch beginning in July of 2014. Carter reported to Vogt until midNovember, 2014, when Erika Ressler became Branch Manager and Carter began reporting to her.
As a CSA, Carter’s job was primarily to handle customer transactions while on the teller
line, which included opening and closing customer accounts. Fraud avoidance, using sound
judgment, and strictly adhering to PNC policies were all part of her job duties. Carter Dep. at
53-54. PNC trained Carter on its policies and proper procedures for opening and closing
accounts, and the policies were available to her on PNC’s intranet. Id. at 18, 23-24, 43-44. With
respect to closing an account that was linked to a debit card, Carter knew that PNC policy
required her to take the debit card from the customer, deactivate the card, and destroy it in front
of the customer. Id. at 23-24, 50-52.
Carter regularly received training on PNC’s Code of Business Conduct and Ethics (“Code
of Ethics”). Id. at 18, 44-47, Exs. 4, 5. The Code of Ethics states that “[s]afeguarding
confidentiality is a fundamental obligation for everyone at PNC....Each of us has an obligation to
safeguard information and prevent its unauthorized disclosure.” Id. at 47-48. Carter was aware of
PNC’s policy regarding the secure handling of confidential information, understood that the
Code of Ethics includes protecting customer information, and understood that protecting privacy
and confidentiality is an important part of the CSA position. Id. at 19, 48-49. Carter knew that if
she failed to follow PNC’s policies and procedures, including the Code of Ethics, she could be
disciplined, up to and including termination. Id. at 19, 49.
B. Carter’s FMLA requests relating to her father’s health condition
In late 2014, Carter’s father began experiencing medical problems. Carter spoke with
Vogt and Ressler about her need to take her father to medical appointments. Ressler Dep. at
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47-48, 52; Vogt Dep. at 25. Carter then applied for intermittent FMLA leave.1 Carter Dep. at 91,
161, Ex. 21. PNC asked Carter to submit a medical certification form from her father’s doctor in
support of her request, which she did. Id. at 95, 169-170, Ex. 22.
On November 10, 2014, PNC notified Carter that her certification was missing
information regarding the duration of the disability and the frequency and duration of leave
requested. It gave her a new form, instructed her to submit the revised certification within seven
days, and explained that it would not consider her request without the missing information. Id. at
170-172, Ex. 23. Carter had her father’s physician fill out the paperwork again and submitted
another form. PNC issued Carter a letter on November 17, 2014, informing her that it had denied
her request for intermittent FMLA leave because the re-submitted certification form was still
insufficient.2 Id. at 162, 174-175, Ex. 25. Ultimately, however, Carter admits that PNC approved
her FMLA request, and she took leave intermittently to care for her father. Id. at 192, 206-07;

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Carter also requested medical leave for her own health condition in early
September, 2014. Carter originally brought an FMLA interference claim based on
her own leave requests and an FMLA retaliation claim. In her brief in opposition
to PNC’s motion for summary judgment, she expressly conceded that PNC is
entitled to summary judgment on her retaliation claim. (Pl.’s Mem. in Opp. at 16
n.94) (“Carter is not disputing summary judgment as to Count III of her
Complaint for FMLA Retaliation.”). She also did not respond to PNC’s motion
for summary judgment on her interference claim related to her own leave requests.
As such, she has abandoned this claim. Briggs v. Univ. of Detroit-Mercy, 611 Fed.
App’x 865, 870 (6th Cir. 2015) (“a district court properly declines to consider the
merits of a claim when a plaintiff fails to address it in response to a motion for
summary judgment”); Haddad v. Sec’t, U.S. Dep’t of Homeland Security, 610 Fed
App’x, 567, 568-69 (6th Cir. 2015) (“A plaintiff is deemed to have abandoned a
claim when she fails to address it in response to a motion for summary
judgment.”). Because she is not pursuing these claims, the Court has not included
facts relating to her own medical leave.

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The resubmitted form was still missing information regarding the frequency and
duration of the leave. Carter Dep., Ex. 24.
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Compl., ¶ 30. Carter also admits that she returned to her job after taking intermittent leave but
states that she was concerned about her job security during the process. Carter Dep. at 219-20.
C. Carter’s discipline and termination
In the first year of her employment, Carter received a verbal warning in March, 2014, for
failing to balance her teller drawer. Then, on September 3, 2014, she received a ninety-day
probation for significant teller differences. Id. at 20-21, 54-55, 98-99. Carter states that the teller
differences were because she was working closely with her supervisor, who made several serious
mistakes handling a large transaction. Carter Aff. ¶ 31. She claims that the teller differences in
her drawer were because her transactions had been mixed in with her supervisor’s transactions.
Id. ¶ 32. But she agrees that the differences in her drawer were a “serious issue” and that PNC’s
disciplinary policies provided for probation under the circumstances. Carter Dep. at 103-04.
Several weeks later, while Carter was on probation, she mistakenly faxed a customer’s
credit card application containing the customer’s name, address, account number, balance, and
other personal information, to a third party outside PNC. Id. at 22, 105-106, Ex. 13; Vogt Dep. at
30. On October 21, 2014, Vogt issued her a final written warning for violation of PNC’s Code of
Business Conduct and Ethics Privacy and Confidentiality Policy. The warning states:
Due to your violation of the PNC Code of Business Conduct and Ethics Privacy
and Confidentiality you are being given a Final Written Warning. This warning
will remain in effect for the duration of your employment with PNC. Further
violation of these policies may result in immediate termination of your
employment with PNC. . . . [B]e advised that a 3rd serious corrective action issue
related to any type of performance or conduct incident, on or before September 3,
2015, may result in the immediate termination of your employment.
Carter Dep., Ex. 13.
On October 24, 2014, three days after Carter received the final written warning, she was

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again found to be in violation of PNC policy. That day, a customer came into the Pearl Shurmer
Branch to close a business account, and Carter was the employee who assisted him. Id. at 24-25.
Near the end of the transaction, as part of closing the account, the customer gave his debit card to
Carter. Carter turned away from the line to shred the card, which she did. Carter Aff. ¶ 36. While
PNC’s policy is for the teller to shred the card in the presence of the customer, Carter states that
in this case, the customer was in a hurry and had already begun to walk away as she was
shredding the card. Id. at ¶ 37.
Five days later, on October 29, 2014, the customer complained to PNC after someone
fraudulently attempted to use his debit card. Carter Dep. at 26-27, Ex. 19 at PNC 111. PNC
investigated the incident and Carter’s actions when closing the customer’s account. Id. at 27, Ex.
19 at PNC 110-111. Fraud Investigator Ashley Novak of PNC’s Investigative Services Group
conducted a preliminary investigation. Novak discovered that Carter had closed the customer’s
checking account on October 24, 2014, but she had not deactivated his debit card. Novak Dep. at
41-42, 44, 49. Novak also determined that six attempts had been made to use the debit card by a
black woman on October 27, 2014, three days after Carter should have deactivated and destroyed
it. Id. at 90 - 91, Ex. 5; Carter Dep. at 119.
After Novak’s preliminary investigation, she informed Employee Relations of the
incident, and PNC assigned Senior Employee Relations Investigator Suzanne Shoemaker to the
case. Shoemaker Decl., at ¶¶ 3-4. On November 17, 2014, Novak and Shoemaker questioned
Carter by telephone about the events of October 24th. According to Carter, Novak and
Shoemaker told her that an African-American woman allegedly attempted to use a debit card
from the customer’s business account to make purchases at a Home Depot, Wal-Mart, and other
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stores. Carter Aff. ¶ 43. In Carter’s affidavit in support of her brief in opposition, she claims that
Novak accused Carter of giving the debit card to “one of her black girlfriends.” Id. at 42. In her
deposition, however, Carter admitted that neither Novak nor Shoemaker ever used the phrase
“black girlfriends” and that they only used the term “girlfriends.” Carter Dep. at 199-200. Carter
denied that she had taken the debit card or that she had given it to a girlfriend who might have
tried to use it. But she admitted that she had forgotten to deactivate the debit card when she
closed the account. Novak Dep. at 66-67; Shoemaker Decl. at ¶ 5; Carter Dep. at 25-28, 113, Ex.
19 at PNC 110-111.
Following the interview with Carter, Novak determined that Carter had not committed
theft or fraud. Novak Dep. at 80. PNC’s Employee Relations department, however, found that
Carter did not follow PNC’s procedures when she failed to deactivate and destroy the debit card
in the presence of the customer. Id. at 84; Shoemaker Decl. at ¶ 6. Because Carter was on a final
written warning at the time and had been warned that any further corrective action could lead to
immediate termination, Shoemaker recommended termination, and Ressler agreed. Shoemaker
Decl. at ¶¶ 7-8; Carter Dep., Ex. 20; Ressler Dep. at 90. Ultimately, PNC terminated Carter’s
employment on November 21, 2014, because she was on a final written warning and had failed to
deactivate the customer’s debit card and destroy it in the customer’s presence, which PNC
determined was a failure to protect a customer’s confidential information. Shoemaker Decl. at ¶¶
7-8; Carter Dep. at 142-144, Exs. 18, 19.
D. Comments made to Carter during her employment
Carter cites to several comments made by Ressler and a regional manager, Stephanie
Zenir, to support her claims. Specifically, during one of their first encounters, Ressler spoke with
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Carter about her health conditions and her future at PNC. During that conversation, Ressler said
to Carter, “Maybe this is not the position for you.” Carter Aff. ¶ 14. During another meeting with
Ressler when the two were speaking about Carter’s father’s medical issues, Ressler told Carter
that she should “look for another position because of your issues.” Id. ¶ 15. Carter believes that
the comments were related to her FMLA leave requests but testified that she does not know
whether they related to her requests or to her on-going performance issues. Carter Dep. at 191,
203.
Carter also claims that she was the subject of racist comments by Zenir in late October,
2014. Zenir came to the Pearl Shurmer branch and spoke with Carter and a few other CSAs in the
office, some of whom were racial minorities. According to Carter, Zenir told Carter and the other
minority employees that they were hired because PNC wanted them to appeal to minority
cultures and clientele. Carter Aff. ¶ 26. Carter claims that Zenir made clear that Carter was hired
because she was African-American and fit PNC’s image to promote diversity. Id. at ¶ 27. Carter
was offended by Zenir’s comment and complained to Vogt about it. In response, Vogt told Carter
not to worry about it and that he would look into it, but Carter states that he never did. Id. at ¶ 29.
Zenir was not involved in any investigation of Carter’s actions or any decision to discipline
Carter, including her probation, final written warning, or termination. Zenir Dep. at 22-23, 25,
57-58.
On September 5, 2015, Carter brought this action alleging race discrimination in
violation of Title VII and the Ohio Civil Rights Act (Counts I and II), FMLA retaliation (Count
III), and wrongful interference with her rights under the FMLA (Count IV). This Court dismissed
Carter’s claim for intentional infliction of emotional distress on December 17, 2015. As noted
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above, Carter concedes that PNC is entitled to summary judgment on her FMLA retaliation claim
and has abandoned her FMLA claim relating to her own FMLA leave requests.
SUMMARY JUDGMENT STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure, as amended on December 1, 2010,
provides in relevant part that:
A party may move for summary judgment, identifying each claim or defense—or
the part of each claim or defense—on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter
of law.
Fed. R.Civ.P. 56(a).
Rule 56(e) provides in relevant part that “[i]f a party fails to properly support an assertion
of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the
court may ... consider the fact undisputed for purposes of the motion ... [and] grant summary
judgment if the motion and supporting materials—including the facts considered
undisputed-show that the movant is entitled to it.” Fed.R.Civ.P. 56(e).
Although Congress amended the summary judgment rule, the “standard for granting
summary judgment remain unchanged” and the amendment “will not affect continuing
development of the decisional law construing and applying” the standard. Fed.R.Civ.P. 56,
Committee Notes at 31.
Accordingly, summary judgment is appropriate when no genuine issues of material fact
exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600,
8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues
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of material facts rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits,” if any, which it believes demonstrates the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution
will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmoving party. The court must afford all reasonable inferences and construe the evidence in
the light most favorable to the nonmoving party. Cox v. Kentucky Dep’t. of Transp., 53 F.3d
146, 150 (6th Cir. 1995) (citation omitted); see also United States v. Hodges X-Ray, Inc., 759
F.2d 557, 562 (6th Cir. 1985). However, the nonmoving party may not simply rely on its
pleading, but must “produce evidence that results in a conflict of material fact to be solved by a
jury.” Cox, 53 F.3d at 150.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “the mere existence of a
scintilla of evidence in support of plaintiff’s position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d 476,
479 (6th Cir. 1995) (quoting Anderson, 477 U.S. at 52 (1986)). Moreover, if the evidence is
“merely colorable” and not “significantly probative,” the court may decide the legal issue and
grant summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).

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LAW AND ANALYSIS
I. Race discrimination claims
Title VII and the Ohio Civil Rights Act prohibit employers from discriminating against an
employee on the basis of race. 42 U.S.C. § 2000e-2(a)(1); Ohio Revised Code § 4112.02. The
same analysis applies to claims under Title VII and Ohio Rev. Code § 4112.02, so the Court will
analyze these claims together. Rachells v. Cingular Wireless Employee Servs., LLC, 732 F.3d
652, 660–61 (6th Cir. 2013). To establish a claim of race discrimination, a plaintiff may produce
either direct evidence of discrimination or circumstantial evidence that would support an
inference of discrimination. Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 775 (6th
Cir. 2016). Here, Carter relies on circumstantial evidence to show that her termination was based
on race. (Pl.’s Mem. in Opp. at 10.)
In a case involving circumstantial evidence, courts use the familiar McDonnell-Douglas
burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973); Jackson, 814 F.3d at 776. Carter bears the initial burden of establishing a
prima facie case, which requires her to prove that: (1) she was a member of the protected class,
(2) she was subjected to an adverse employment action, (3) she was otherwise qualified for the
position, and 4) she was replaced by someone outside the protected class or a similarly situated
non-protected employee was treated more favorably. Peltier v. United States, 388 F.3d 984, 987
(6th Cir. 2004). If Carter establishes her prima facie case, the burden shifts to PNC to “offer
evidence of a legitimate, non-discriminatory reason for the adverse employment action.”
Jackson, 814 F.3d at 776 (quotations omitted). If PNC meets this burden, “the burden shifts back
to [Carter] to show that [PNC’s] proffered reason was not its true reason, but merely a pretext for
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discrimination.” Id. (quotations omitted).
A. Carter’s prima facie case
PNC does not dispute that Carter can prove the first three elements of her prima facie
case. It argues, however, that she cannot meet her burden of showing that she was replaced by
someone outside the protected class or treated less favorably than a similarly situated nonprotected employee. The Sixth Circuit has held that three factors are relevant to determining
whether employees are “similarly situated”:
[T]he individuals with whom plaintiff seeks to compare his/her treatment must
have (1) dealt with the same supervisor, (2) have been subject to the same
standards and (3) have engaged in the same conduct without such differentiating
or mitigating circumstances that would distinguish their conduct or the employer’s
treatment of them for it.
Jackson, 814 F.3d at 777 (quoting Mitchell v. Toledo hosp., 964 F.2d 577, 583 (6th Cir. 1992)).
While a plaintiff need not demonstrate an “exact correlation” with the comparable, the plaintiff
and the employee with whom she seeks to compare herself “must be similar in ‘all of the relevant
respects.’” Id. (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1992)).
Here, Carter does not produce any evidence that she was replaced by someone outside the
protected class or that any similarly situated employee outside the protected class was treated
more favorably. Indeed, she seems to believe that she does not need to produce such evidence to
meet her prima facie burden. In her brief in opposition, she states:
Defendant argues that Carter cannot point to any other non-minority employees
who committed a serious infraction yet were not disciplined or terminated;
however, this argument misses the point. Rather, at issue is whether Carter
committed a serious violation in the first place and more importantly, whether she
was targeted in this incident based on her race...Call it racial stereotyping, call it
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profiling, or any other synonym, Novak and Shoemaker, during their investigation
into the debit card issue, assumed Carter (1) either stole this debit card and used it
herself, or (2) gave it to a “black” friend who then attempted these charges...There
is no evidence that PNC treated a Caucasian CSA in a similar manner.
(Pl.’s Mem. in Opp. at 11-12). As PNC recognizes in its reply brief, this argument is more
appropriately made at the third step of the burden-shifting analysis to show that PNC’s
articulated reason for terminating Carter was pretextual. Carter cites to an Ohio appellate court
opinion, Holbrook v. Lexis-Nexis, 862 N.E.2d 892, 898 (Ohio App. 2nd Dist. 2006), as support for
her position that she need not produce a non-protected comparator. But the portion of the
Holbrook opinion on which she relies is addressing pretext. Earlier in the opinion, where the
court analyzed whether the plaintiff could meet his prima facie case, it held that he had met his
burden of producing evidence of a comparable, nonprotected employee who was treated more
favorably. Id. at 896-97. Thus, Holbrook does not support Carter’s position.
Carter’s failure to show that she was replaced by someone outside the protected class or
identify any similarly situated non-protected employee who was treated more favorably than her
is fatal to her claim because it means she cannot meet her prima facie case. Agrawal v.
Montemagno, 574 F. App’x 570, 577 (6th Cir. 2014) (affirming grant of summary judgment to
employer because “Agrawal has not presented evidence from which a jury could conclude that
any alleged comparator was treated more favorably than he for similar misconduct”); Johnson v.
City of Clarksville, 186 F. App’x 592, 595 (6th Cir. 2006) (affirming grant of summary judgment
on plaintiffs’ Title VI race discrimination claim because of failure to produce evidence of
similarly situated comparator); Nickerson v. Potter, 102 F. App'x 936, 938 (6th Cir. 2004)
(affirming summary judgment on gender discrimination claim because plaintiff did not produce

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any evidence of male employees who were treated more favorably); Young v. Sabbatine, 238
F.3d 426 (6th Cir. 2000) (“Because Young has failed to demonstrate that he was treated less
favorably than similarly situated non-protected individuals, he has failed to make a prima facie
showing of discrimination and has therefore failed to raise a genuine issue of material fact as to
his prima facie case.”).
B. Pretext
Even assuming Carter could meet her prima facie case, her claim would still fail because
PNC terminated her for a legitimate business reason, and Carter cannot show that PNC’s
articulated reason was a pretext for discrimination. PNC’s proffered reason for terminating Carter
was that, while she was on a final written warning, she failed to deactivate a customer’s debit
card and destroy it in the customer’s presence, which PNC determined to be a failure to protect a
customer’s confidential information. Carter does not dispute that this is a legitimate business
reason but argues that it is a pretext for discrimination.
To prove pretext, Carter must show “(1) that the proffered reason[] had no basis in fact,
(2) that the proffered reason[] did not actually motivate the employer’s action, or (3) that [it was]
insufficient to motivate the employer’s action.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th
Cir. 2009). To carry her burden in opposing summary judgment, Carter must produce sufficient
evidence from which a jury could reasonably reject PNC’s explanation of why it fired her. Id.
Carter apparently relies on the second method of showing pretext–that PNC’s stated reason did
not actually motivate its decision to terminate her. (Pl.’s Mem. in Opp. at 12). This category
requires a plaintiff to “admit[ ] the factual basis underlying the employer’s proffered explanation
and further admit[ ] that such conduct could motivate dismissal.” Chattman v. Toho Tenax Am.,
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Inc., 686 F.3d 339, 349 (6th Cir. 2012). The plaintiff rebuts the employer’s explanation “by
showing circumstances which tend to prove an illegal motivation was more likely than that
offered by the defendant.” Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000) (citations
omitted). “In other words, the plaintiff argues that the sheer weight of the circumstantial evidence
of discrimination makes it ‘more likely than not’ that the employer’s explanation is a pretext, or
coverup.” Id.
Here, Carter begins her pretext analysis by arguing that “the ‘theft’ allegation against
[her] was unfounded.” Because she was not terminated for theft, this argument is irrelevant to
pretext. Next, she argues that she did shred the debit card and that she closed the account before
any of the alleged purchases so the customer was not harmed. Carter, though, does not dispute
that her failure to shred the debit card in the presence of the customer or her failure to
immediately deactivate the account were sufficient causes for termination.3 Whether or not the
customer was harmed is irrelevant to the pretext analysis. This Court may not second guess
PNC’s business decision to terminate Carter’s employment for failing to comply with PNC’s
policies regarding the handling of confidential customer information while she was on a final
written warning. See, e.g., Treadway v. California Prods. Corp., 2016 WL 4073306, at *8 (6th
Cir. Aug. 1, 2016) (“Treadway cannot establish pretext simply by questioning CPC’s business
judgment. This court is not a ‘super personnel department’ tasked with ‘second guessing
employers’ business decisions.’”).
Next, Carter cites Novak’s and Shoemaker’s questions during the investigation regarding
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Indeed, given the method of proving pretext that Carter has chosen, she must
admit the factual basis for PNC’s explanation and that it could be sufficient to
motivate termination.
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whether she had stolen the card herself, sold or gave it to another black female, or knew the
individual who attempted the purchases. Carter claims that this questioning shows pretext
because there was “absolutely no evidence or reason by PNC to believe that Carter committed
any of this conduct.” But Carter admitted in her deposition that she was connected to the
individual who fraudulently used the customer’s debit card by the very fact that she was the last
person at PNC to handle the card before the attempted fraudulent charges. Carter Dep. at 120122, 130, 200-01, 217-18. This fact alone gave PNC sufficient reason to undertake the
investigation and ask the questions at issue. And to the extent that Carter rests her argument on
the statement in her declaration that Novak and Shoemaker asked Carter if she gave the card to
her “black girlfriend,” Carter’s deposition testimony directly contradicts the statement because
she specifically admitted that neither Novak nor Shoemaker ever asked such a question. Carter
Dep. at 199-200 (“Q: Did they ever use the term ‘black girlfriends’? A: No.”). Carter cannot
create a genuine dispute of fact by filing an affidavit, after PNC has moved for summary
judgment, that contradicts her earlier deposition testimony. Penny v. United States Parcel Serv.,
128 F.3d 408, 415 (6th Cir. 1997). Merely asking Carter if she gave the card to one of her
“girlfriends” is insufficient to establish that PNC’s stated reason for terminating Carter is more
likely than not a pretext for discrimination.
Finally, to the extent Carter relies on Zenir’s alleged statement that Carter was hired
because she is African American, it is insufficient evidence from which a jury could reasonably
reject PNC’s explanation of why it fired her. The comment was made weeks before Carter’s
termination and was unrelated to the debit card incident or Carter’s termination. Moreover, Zenir
played no role in the decision to terminate Carter.
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For these reasons, PNC is entitled to summary judgment on Counts I and II.
II. FMLA
The FMLA states that “[i]t shall be unlawful for any employer to interfere with, restrain,
or deny the exercise of or the attempt to exercise any right provided [by this Act].” 29 U.S.C. §
2615(a)(1). As noted above, Carter concedes that PNC is entitled to summary judgment on her
FMLA retaliation claim and has abandoned her FMLA interference claim to the extent that it is
based on her requests for her own medical leave. Thus, the only remaining issue under the FMLA
is whether PNC interfered with Carter’s FMLA rights by not allowing her to take leave to care
for her father.
The Sixth Circuit applies the McDonnell Douglas framework to FMLA interference
claims. Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). To prevail on her prima facie
case, Carter must prove that (1) she was an eligible employee as defined under the FMLA; (2)
PNC was a covered employer; (3) she was entitled to leave under the FMLA; (4) she gave PNC
notice of her intention to take FMLA leave; and (5) PNC denied FMLA benefits to which she
was entitled. Novak v. MetroHealth Med. Ctr., 503 F.3d 572 (6th Cir. 2007). “Employees
seeking relief under the [interference] theory must [also] establish that the employer’s violation
caused them harm.” Wallace v. FedEx Corp., 764 F.3d 571, 585 (6th Cir. 2014) (quoting Edgar
v. JAC Prod., Inc., 443 F.3d 501, 508 (6th Cir. 2006).
While PNC originally denied Carter’s FMLA leave request, she admits that it ultimately
approved the request, that she took the leave she required, and that her job was available to her
when she returned. Thus, her prima facie claim fails because she cannot establish the final
element. Moreover, even assuming PNC wrongfully denied Carter’s request for leave, the claim
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fails because, by admitting that she took the leave that she required and that she returned to her
job, she has identified no harm from the alleged violation. Nor has she cited any authority for the
proposition that her concerns about job security constitute the requisite prejudice or harm.
Even assuming Carter could establish her prima facie claim, PNC had a legitimate reason
for denying her leave request, and Carter cannot establish pretext. Specifically, Carter’s
certification form was insufficient, and she did not cure the defects in the form after PNC gave
her notice of the defects and an opportunity to cure them. When requested by the employer, an
employee must provide a complete and sufficient certification form to the employer. 29 C.F.R. §
825.305(c). If the employer finds deficiencies in the form, it must give the employee seven days
to cure the deficiencies. Id. “If the deficiencies specified by the employer are not cured in the
resubmitted certification, the employer may deny the taking of FMLA leave.” Id.; Kinds v. Ohio
Bell Tel. Co., 724 Ff.3d 648, 654 (6th Cir. 2013). Here, Carter’s original certification form was
missing information. After PNC notified her of this deficiency and gave her time to cure the
defect, her resubmitted form was still deficient.4 Therefore, even assuming PNC had denied
Carter’s leave request to care for her father, it had the right to do so.
Finally, Carter has not produced sufficient evidence that PNC’s stated reason for
originally denying the leave request was pretextual. As support, she points to Ressler’s
statements that “maybe this is not the position for you” and that Carter should “look for another
position because of your issues.” But at the time of the comments, Carter had been placed on
probation and received her final written warning. In her deposition, Carter admitted that she did
4

Carter’s conclusory statement in her brief that she “disputes that the paperwork
was incomplete” is insufficient to create a genuine dispute of material fact on this
issue.
17

not know if the comments were related to her FMLA leave requests or her ongoing performance
issues. A reasonable jury could not conclude from these statements that PNC’s explanation of
why it originally denied Carter’s FMLA leave request was pretextual.5
CONCLUSION
For the foregoing reasons, Defendant PNC Bank’s Motion for Summary Judgment (Doc.
19) is GRANTED.
IT IS SO ORDERED.

Date:

5

9/22/16

/s/Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge

Ressler’s comments do not constitute direct evidence, as Carter argues in her
brief. Direct evidence of discrimination is “that evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating
factor in the employer's actions.” Daugherty v. Sajar Plastics, Inc., 544 F.3d 696,
707 (6th Cir. 2008) (quoting DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir.2004)).
“[D]irect evidence ...does not require a factfinder to draw any inferences in
order to conclude that the challenged employment action was motivated at
least in part by prejudice against members of the protected group.” Id.
Because Ressler’s statements could have been made in relation to Carter’s
performance issues rather than her FMLA leave requests, they do not
require the conclusion that Ressler discriminated against Carter on the basis
of the requests. In addition, there is no evidence showing that Ressler had
any authority over Carter’s requests. Thus, at best, Ressler’s comments are
stray remarks that are insufficient to constitute direct evidence of
discrimination or evidence of pretext.
18