Burnett v. Carrington Health Systems

Filing 40

REPORT AND RECOMMENDATIONS re 24 MOTION for Summary Judgment filed by Carington Health Systems: that defendant's motion for summary judgment be GRANTED; plaintiff's complaint DISMISSED with prejudice and this case CLOSED. Objections to R&R due by 12/17/2012. Signed by Magistrate Judge Stephanie K. Bowman on 11/30/12. (Attachments: # 1 Certified Mail Receipt) (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DEMETTRESS ARLENE BURNETT,

Case No. 1:11-cv-324

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.

CARINGTON HEALTH SYSTEMS,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Demettress Burnett, proceeding pro se and in forma pauperis, brings this
action against a former employer, Defendant CHS-Colerain, Inc., d/b/a Veranda
Gardens, 1 alleging that Defendant discriminated against her on the basis of her race. 2
(See Doc. 3).

Pursuant to local practice, this matter has been referred to the

undersigned magistrate judge for a report and recommendation on the Defendant’s
motion for summary judgment. (Doc. 24). For the reasons set forth herein, Defendant’s
motion should be GRANTED and this case should be dismissed.

1

Plaintiff incorrectly names Carington Health Systems as the Defendant, but the correct Defendant
employer nevertheless responded. (Doc. 7 at 1).

2

Plaintiff previously filed suit in this Court against a different former employer, Select Specialty Hospital,
also alleging race-based discrimination, harassment, and/or retaliation. See Case No. 10-cv-505. The
undersigned recommended that summary judgment be granted to the defendant-employer in that case on
August 24, 2012. That Report and Recommendation was adopted by the presiding district judge, and the
lawsuit was dismissed with prejudice on September 27, 2012. (Docs. 38, 39).

1

I. Background
Approximately six weeks prior to hiring Plaintiff, on December 23, 2009,
Defendant’s administrator, Brian Coffey, received notification from the Ohio Department
of Health (ODH) concerning a survey, or audit, of Veranda Gardens (“Veranda”), a
skilled nursing facility in Cincinnati, Ohio. As a result of that survey, ODH imposed
penalties upon Veranda for its past non-compliance with regulations, including
prospective penalties that threatened the ability of Defendant to continue operations if it
failed to reach compliance by stated deadlines.

During the weeks that followed,

Veranda worked with consultants and others to correct the problems identified by ODH.
The same day it received notification of the penalties from ODH, Defendant removed
the existing Director of Nursing (“DON”), a Caucasian employee. Tom Schindler, the
Director of Clinical Operations for non-party CHSHO, Inc., an affiliated entity that
provided consulting to Defendant, began serving as an interim DON while Defendant
searched for a replacement. Debbie Fiehrer, a Clinical Staff Technician also employed
by CHSHO, assisted Schindler and functioned as an interim Assistant DON.
Plaintiff, who is black, was subsequently hired as the new DON at Veranda,
beginning on February 1, 2010. 3 In an affidavit, Brian Coffey avers that Defendant
decided to hire Plaintiff based upon several considerations, including: (1) a small
candidate pool; (2) Plaintiff’s familiarity with Veranda as a contracted nurse with a
staffing agency used by Veranda; (3) Plaintiff’s qualifications, including her placement
as an RN Supervisor at Veranda in the past; and (4) Plaintiff’s favorable interviews with

3

Plaintiff alleges that she began her employment with Defendant two weeks earlier, but admits that she
was not officially employed by Defendant as DON until February 1, 2010.

2

several managers and consultants. (Doc. 24-1). When hired as the DON, Plaintiff was
the fourth African-American female, out of a total administrative staff of 17.
Plaintiff was terminated from her position just three weeks later, on February 22,
2010. The same person who hired her, Brian Coffey, met with Plaintiff and reviewed a
written list of five violations that provided the grounds for her termination.

Plaintiff

disputed the violations and wrote down her own version of events on the back of the
termination paperwork. Plaintiff did not notify Mr. Coffey or anyone else at the time of
her termination meeting that she believed that discrimination played any role in her
termination. However, in a single-spaced typed, six-page letter dated two days later, on
February 24, 2010, Plaintiff notified Defendant that she believed that her termination
was racially motivated. Mr. Coffey responded by gathering written statements from the
witnesses who previously had made verbal complaints concerning the violations that led
to Plaintiff’s termination.
Prior to initiating suit in this Court, Plaintiff exhausted her administrative remedies
by filing a complaint with the Equal Employment Opportunity Commission (“EEOC”),
alleging that she was terminated based on her race, that Caucasian employees were
insubordinate to her, and that defendant did not provide her with sufficient training to
perform her position “as promised.” (Doc. 3 at 8). Declining to make any specific
findings concerning Plaintiff’s charges, the EEOC issued Plaintiff a Notice of her right to
file the instant lawsuit. (Id. at 9).
In her federal complaint, Plaintiff generally alleges that she was “harassed by
staff who constantly made refusals to perform duties, were beligerent [sic] to me, +
made racial comments” (Doc. 3 at 2). She alleges that she was not issued warnings

3

prior to her termination, or afforded the same leeway to “grow” into her position that was
afforded to white employees who were new to their positions. (Id. at 2-3). She alleges
that her concerns about staff “behavoir [sic] + disrespect went unaddressed when it
involved the Caucasian employees even though policies were violated….” (Id.).
Construing Plaintiff’s pro se allegations liberally, Plaintiff claims that disparate treatment
and/or discriminatory animus led Defendant to terminate her. Defendant’s motion for
summary judgment argues that Plaintiff cannot establish the essential elements of her
claims.
II. Analysis
A. Summary Judgment Standard
In a motion for summary judgment, a court “must view the facts and any
inferences that can be drawn from those facts ... in the light most favorable to the
nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
2007) (internal quotation marks omitted). “Summary judgment is only appropriate ‘if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed.R.Civ.P.
56(c))(internal quotation marks omitted). “Weighing of the evidence or making credibility
determinations are prohibited at summary judgment-rather, all facts must be viewed in
the light most favorable to the non-moving party.” Id.
B. Defendant’s Motion
The precise nature of the discrimination alleged by Plaintiff is ambiguous, to the
extent that her complaint could support two possible theories under Title VII: (1) that
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Plaintiff was terminated because of her race (Doc. 3 at ¶III); and/or (2) that she was
subjected to race-based harassment (id. at ¶IV), or disparate racial treatment.
Regardless of the legal theory on which a plaintiff relies, summary judgment will be
entered “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). On the
record presented, Defendant is entitled to summary judgment based upon its showing
that Plaintiff cannot establish any claim under Title VII.
1. Discriminatory Termination Claim
Defendant is entitled to summary judgment because it has come forward with
legitimate, nondiscriminatory reasons for Plaintiff’s termination, and Plaintiff has not
carried her burden to show that those stated reasons were pretextual.
a. Plaintiff’s Prima Facie Case
Plaintiff has offered no direct evidence that race played any role in her
termination, and instead relies on indirect or circumstantial evidence that she alleges
supports her claim of discrimination. The familiar McDonnell Douglas burden-shirting
framework applies to cases involving indirect evidence of racial discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under that framework,
a plaintiff may establish a prima facie case of discrimination through circumstantial
evidence by showing that: 1) she is a member of a protected class; 2) she suffered an
adverse employment action; 3) she was qualified for the position lost; and 4) she was
replaced by an individual outside the protected class, or alternatively, was treated less

5

favorably than a similarly-situated individual outside the protected class. See Wright v.
Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2004).
To some degree, Defendant disputes the third element of Plaintiff’s prima facie
case, insofar as one of the “violations” for which Plaintiff was terminated was her failure
to demonstrate “the qualities and management skills necessary” to perform as DON.
However, Defendant does not dispute that it believed Plaintiff to be qualified when it
hired her into the position just three weeks prior to firing her. Therefore, for purposes of
the pending motion, the Court will assume that Plaintiff can establish a prima facie case
of race discrimination. Plaintiff is African-American, was terminated, and presumably
(absent contrary evidence) was replaced by a Caucasian employee.
Once a plaintiff has established a prima facie case, the burden of production
shifts to the employer to put forth a “legitimate, nondiscriminatory reason” for the
adverse action taken. Id. (citing Burdine v. Texas Dept. of Community Affairs, 450 U.S.
248, 253 (1981)).

If the employer meets that burden, then “the presumption of

discrimination created by the prima facie case falls away…and the plaintiff then needs
to show that the defendant’s ‘legitimate nondiscriminatory reason’ was a ‘pretext for
discrimination.’” Id., at 706-707 (citing DiCarlo v. Potter, 358 F.3d 408, 414-15 (6th Cir.
2004)(additional citation omitted)).
b. Defendant’s Nondiscriminatory Reasons for Termination
At her termination meeting, the Defendant provided Plaintiff with the following
written list of violations of policies and procedures as the basis for her termination:
1. Employee canceled scheduled agency staff on the weekend of
2/20/2010 without notification of scheduler or administrator and failed to

6

ensure coverage of the nursing needs, or schedule replacement staff,
leaving the facility with inadequate staffing;
2. It has been noted that Employee raises her voice at staff in an
inappropriate manner, in violation of …customer service policies and
practices;
3. Employee has made inappropriate comment regarding “LPNs being
weak”, thereby creating an atmosphere of disrespect and discontent
between management staff and administration;
4. Employee made demands on the administrative staff/personnel to
complete “floor tasks” during recent snow emergency, yet Employee did
not assist with the work in any manner;
5. Employee has not exhibited the qualities and management skills
necessary to direct the nursing department.
(See Doc. 24-11). The listed reasons are facially legitimate and nondiscriminatory.
Therefore, Defendant has rebutted the presumption of discrimination created by
Plaintiff’s prima facie case. Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th
Cir. 2000).
Several of the stated reasons for Plaintiff’s termination relate to her frequent
interpersonal conflicts with staff during her brief tenure as DON. Plaintiff does not deny
the existence of those conflicts, but charges that they arose from impermissible racial
bias. However, Defendant is entitled to summary judgment, because Plaintiff has failed
to show that the reasons given for her termination were not the true reasons, but were
instead were a pretext for discrimination. Barnhart v. Pickrel, Schaeffer & Ebeling Co.,
L.P.A., 12 F.3d 1382, 1395 (6th Cir. 1993).

“The ultimate burden of proving the

defendant's intent to discriminate remains with the plaintiff at all times.” Wright v. Murray
Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006), (citing St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 511 (1993)).

7

c. Plaintiff’s Failure to Show Pretext
“A plaintiff can refute the legitimate, nondiscriminatory reason that an employer
offers to justify an adverse employment action ‘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.’”

Wexler v. White’s Fine

Furniture, 317 F.3d 564, 576 (6th Cir. 2003)(additional citation omitted). Rather than
providing evidence, Plaintiff attempts to overcome Defendant’s stated reasons for the
termination based on nothing more than her own subjective beliefs.

Plaintiff’s lack of

any actual evidence of pretext is fatal to her claim. See Mitchell v. Toledo Hosp., 964
F.2d 577, 584-85 (6th Cir. 1992)(plaintiff’s subjective belief insufficient to maintain claim
of race discrimination); see also In re Morris, 260 F.3d 654, 665 (6th Cir. 2001)(holding
that a nonmoving party has an affirmative duty to direct the court’s attention to specific
portions of the record upon which the nonmovant seeks to rely to create a genuine
issue of material fact).
The record in this case strongly supports a finding that Plaintiff was terminated
for the nondiscriminatory reasons stated in the termination notice. Plaintiff was hired
and fired by the same person, within a span of just three weeks. Three of the people
with whom Plaintiff interviewed for the DON position participated in her termination
meeting. The “same actor” presumption of nondiscrimination applies in this case and
adds further support for Defendant’s argument. See Buhrmaster v. Overnite Transp.
Co., 61 F.3d 461 (6th Cir. 1995)(“An individual who is willing to hire and promote a
person of a certain class is unlikely to fire them simply because they are a member of
that class.”).
8

Plaintiff asserts that Defendant hired her only temporarily to somehow “fool”
regulatory authorities into believing that Defendant had a qualified DON, and that
Defendant quickly fired her, based upon her race, as soon as it had accomplished that
initial objective.

But Plaintiff’s theory rests on nothing more than speculation and

conjecture, and defies common sense, as well as multiple documents in the record. As
Defendant points out, the record reflects that Veranda had an acting DON both prior to
and after Plaintiff’s termination, offering no reason to seek to “fool” state authorities.
Aside from Plaintiff’s lack of evidence that hiring a DON for three weeks in February
2010 had any regulatory impact, regulatory records submitted by Defendant undermine
any significance of the February dates because they reflect compliance deadlines of
March and June of 2010.
More importantly, evidence of Plaintiff’s violations was relatively strong,
notwithstanding the fact that Plaintiff disputes those violations.

In its motion for

summary judgment, Defendant specifically focuses on three of the five violations: (1)
Plaintiff’s cancellation of agency staff on the weekend of February 20, 2010 without
notice, and failure to schedule replacement staff; (2) Plaintiff’s unprofessional
demeanor/tone used with staff; and (3) Plaintiff’s lack of qualities and management
skills necessary to serve as DON.

(Doc. 24-11).

Once alerted to Plaintiff’s post-

termination charge of discrimination, Defendant investigated and obtained written
statements corroborating all five violations. The written statements were consistent with
earlier pre-termination verbal accounts related to management, and confirmed that
grounds existed for termination.

In addition to Coffey’s affidavit, Defendant attaches

various witness statements as exhibits to its motion for summary judgment, as well as

9

contemporaneous emails discussing the decision to terminate Plaintiff, and other
evidentiary documents such as Personnel Policies and ODH documents.
The first violation, concerning the cancellation of staff previously scheduled by
Assistant DON Stacey Sievering, was reported by several employees. (See, e.g., Doc.
24-1, 24-5. 24-7). The issue of adequate staffing was paramount, in part, because it
was a critical area identified by ODH that Veranda was required to improve. Plaintiff’s
handwritten response to the termination notice reflects her belief that certain staff were
not supposed to be scheduled at Veranda because they had not attended a mandatory
meeting.

(Doc. 31-1 at 7). Plaintiff complains in her response to Defendant’s motion

that she removed only one staff member, and did so for a valid reason. In her six-page
post-termination letter to Defendants, Plaintiff described her role in the staffing issue as
an “honest mistake.” (Doc. 32-1 at 40). However, Plaintiff has failed to support her
claim with any admissible evidence. 4
As noted by Defendant, most of Plaintiff’s exhibits are unauthenticated, unsigned,
unsworn, and contain hearsay. Even if considered, the exhibits offer no more than
minimal evidence to dispute Defendant’s finding that the staffing violation occurred. In
other words, Plaintiff’s largely inadmissible “evidence” at most suggests a minor factual
dispute between Plaintiff’s account and the accounts of other witnesses.

The

Defendant’s reasonable resolution of that dispute, based on the weight of the evidence
it reviewed and submitted to this Court, does not demonstrate racial bias.

4

Plaintiff’s deposition is filed in this case, and although a trial court has no duty “to search the entire
record to establish that it is bereft of a genuine issue of material fact,” Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479-1480 (6th Cir. 1989), the Court has done so here.

10

In fact, the Defendant would be entitled to summary judgment even if the Court
believed Plaintiff’s explanations for her alleged violations of company policies and
procedures, and even if this Court believed that the termination was too harsh a penalty,
or that Defendant should have given Plaintiff additional time to adjust to her new role.
The Sixth Circuit uses a modified “business judgment” or “honest belief” rule, whereby a
court will permit an employer to “establish its reasonable reliance on the particularized
facts that were before it at the time the decision was made.”

Blizzard v. Marion

Technical College, 698 F.3d 275, 286 (6th Cir. 2012)(quoting Escher v. BWXT Y-12,
LLC, 627 F.3d 1020, 1030 (6th Cir. 2010)(additional internal quotation marks and
citation omitted).
Once the employer comes forward with an explanation of its reasonable reliance
upon particularized facts that were before it at the time, the employee must “produce
evidence to the contrary, such as an error on the part of the employer that is ‘too
obvious to be unintentional.’” Id., quoting Seeger v. Cincinnati Bell Tel. Co., 681 F.3d
274, 286 (6th Cir. 2012)(additional citation omitted). “To overcome the honest belief
rule, the employee ‘must allege more than a dispute over the facts upon which [the]
discharge was based.” Id. Instead, she must “put forth evidence which demonstrates
that the employer did not ‘honestly believe’ in the proffered non-discriminatory reason
for its adverse employment action.’” Id. (quoting Braithwaite v. Timken Co., 258 F.3d
488, 494 (6th Cir. 2001). Here, Plaintiff has failed to produce evidence demonstrating
that Defendant’s reliance on the facts before it at the time of her termination was
unreasonable. Plaintiff’s disagreement with Defendant’s business judgment “does not
create sufficient evidence of pretext in the face of the substantial evidence that [the

11

employer] had a reasonable basis to be dissatisfied.” Id., quoting Majewski v. Automatic
Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001).
The second and third violations relied upon by Defendant similarly are wellsupported by record evidence attached to Defendant’s motion.

On the first day of

assuming her position as DON, Plaintiff called a nurse (Greg Abrams) into her office
and berated him in front of Stacey Sievering (Assistant DON).

(Doc. 24-4).

Ms.

Sievering was so concerned that she immediately reported the incident to Mr. Coffey.
(Doc. 24-1 at 8). Subsequently, Mr. Coffey received multiple similar complaints about
Plaintiff’s caustic, demanding, and overbearing demeanor with other staff members,
whom Plaintiff accused of insubordination and of failing to respect her position as DON.
(Id. at 9-12).

Lisa Cowden called a meeting with Plaintiff on February 8, 2010 to

address communication problems that had arisen between Plaintiff and staff in Plaintiff’s
first week, but to no beneficial effect. (Doc. 23, Deposition at 110-111). Plaintiff called
one nurse at home during a major snowstorm, speaking to her so loudly and sharply
that the nurse’s husband, overhearing the tone, urged her to quit. (Doc. 24-6, 24-1 at 9,
24-8 at 2). Plaintiff demanded another nurse (Shannon Dailey) work additional overtime
for short-staffed shifts, resulting in another significant incident in which Plaintiff’s
management style and demeanor were strongly criticized.

(Doc. 24-1, 24-7, 24-8).

Debbie Fiehrer, who helped hire Plaintiff and served Assistant DON at times, also
complained about Plaintiff’s unprofessional demeanor. (Doc. 24-7, 24-8). Last, Ms.
Cowden reported Plaintiff’s inappropriate demeanor. (Doc. 24-9). 5

5

Although not in the form of affidavits, these statements are attached to Coffey’s affidavit as statements
that he considered in his decision to terminate the Plaintiff. Thus, while are not considered for the truth of

12

Plaintiff argues that multiple Caucasian staff members were in fact insubordinate,
and were not disciplined by Defendant for their insubordination and lack of respect for
her. She suggests that because the staff members who registered complaints about
her demeanor were all Caucasian, they should not have been believed.

However,

Plaintiff’s subjective perception that she was blameless in the many conflicts that arose
does not overcome the Defendant’s evidence that it reasonably believed that Plaintiff
lacked the qualities and abilities to be an effective manager, given both the frequency
and severity of conflicts within the span of a few short weeks.

An employer’s

nondiscriminatory reasons for termination will be upheld so long as the employer
believed that the employee committed one or more terminable offenses, regardless of
whether the employer’s belief was mistaken. See Smith v. Chrysler Corp., 155 F.3d
799, 806 (6th Cir. 1998). Here, the evidence is irrefutable that Defendant reasonably
believed that it had legitimate grounds to terminate Plaintiff.
Plaintiff offers no admissible evidence that the proffered reasons for her
termination were factually false. At her deposition, she offered hearsay testimony that
“a lot of people” told her that she was fired because she was black, but when
questioned further, she stated that only two non-supervisory employees (Lisa Fisher, a
Commonwealth employee, and Eulanda Gunn 6) expressed their opinions that Plaintiff
was only hired to get Defendant through state review. Ms. Fisher further speculated
(prior to Plaintiff’s termination) that the Defendant would not retain her because she is

the matter asserted, the statements are properly considered as evidence that Coffey had before him prior
to and at the time of the termination.
6

Eulanda Gunn was fired prior to Plaintiff’s termination. (Doc. 23 at 89, 94).

13

black, while Ms. Gunn later opined (after both Plaintiff’s and Ms. Gunn’s termination)
that Plaintiff was terminated based upon her race. (Doc. 23 at 85-89).
Plaintiff also fails to provide evidence to support the second type of pretext where a plaintiff asserts that discrimination is the most likely reason for the termination
notwithstanding the existence of other grounds. A plaintiff attempting to prove this type
of pretext “is required to produce additional evidence of discrimination beyond his prima
facie evidence.” Burus v. Wellpoint Companies, Inc., 2010 WL 1253089 at *10 (E.D.
Ky. March 25, 2010), aff’d, 2011 WL 3444311 (6th Cir., Aug. 8, 2011)(applauding district
court’s pretext analysis as “spot-on”). Plaintiff’s subjective feeling of being disrespected
by Caucasian nurses over whom she had authority is insufficient to overcome
Defendant’s overwhelming evidence that it believed that Plaintiff’s “people skills” were
woefully inadequate. Accord Treadwell v. American Airlines, Inc., 716 F. Supp.2d 721,
728 (W.D. Tenn. 2010), aff’d 447 Fed. Appx. 676 (6th Cir., 2011)(granting summary
judgment to employer on race discrimination claim where only evidence were affidavits
reflecting plaintiff’s and co-workers’ subjective beliefs). Again, Plaintiff has failed to offer
any evidence in this case to support her subjective beliefs.
Last, Plaintiff offers no evidence to prove the third type of pretext - that her
overall course of conduct was insufficient to support termination. See also Clark v.
Walgreen Co., 424 Fed. Appx. 467, 474 (6th Cir. 2011)(plaintiff’s evidence of pretext
insufficient to overcome “great weight” of employer’s evidence of legitimate basis for
termination). Defendant has produced evidence, including contemporaneous emails
and witness statements, as well as Coffey’s affidavit, that support Defendant’s
reasonable belief that Plaintiff’s actions were grounds for termination.
14

In short, Defendant has carried its burden of proving that it terminated Plaintiff for
legitimate and non-discriminatory reasons. Defendant has provided extensive evidence
supporting its concerns with Plaintiff’s management style during her extremely short
tenure. Interpersonal conflicts between Plaintiff and other staff members demanded
near-constant intervention and attention from other administrative staff. (See Doc. 24-8).
In fact, in her deposition, she admits to having a meeting with Lisa Cowden on February
8, 2010 to discuss complaints that Lisa had received from staff about Plaintiff’s conduct.
(Doc. 23 at 110-111).

Defendant took prompt action to investigate Plaintiff’s post-

termination complaint of racial bias as soon as it was alerted to that concern. However,
the Defendant’s investigation only confirmed its reasonable belief that termination was
warranted.
2. Harassment/ Hostile Work Environment
For similar reasons, Defendant is entitled to summary judgment if Plaintiff’s claim
is construed as one of disparate treatment or racial harassment/hostile work
environment.

To prove a racially hostile work environment, “a plaintiff must

demonstrate that (1) she was a member of a protected class; (2) she was subjected to
unwelcome racial harassment; (3) the harassment was based on race; (4) the
harassment unreasonably interfered with her work performance by creating an
intimidating, hostile, or offensive work environment; and (5) the employer is liable.” See
Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009)(citing Hafford v. Seidner,
183 F.3d 506, 512 (6th Cir. 1999)). Defendant is entitled to judgment as a matter of law
for any such claim, based upon Plaintiff’s inability to show all but one of the requisite
elements.

15

Plaintiff has shown only that she is a member of a protected class. Her evidence
falls short on every other element of her claim; she cannot show that she was subjected
to racial “harassment” that was sufficiently severe and pervasive to interfere with her
work environment, or that Defendant should be held liable.
Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011).

See Williams v. CSX

Plaintiff alleges that she was

“harassed” by insubordinate and belligerent staff, who allegedly “made racial
comments.” However, Plaintiff testified that she never heard a single racial epithet.
The lone “comment” that Plaintiff believes to have been racially motivated
involved a story told by Lisa Cowden, the Customer Service Manager at consulting
company CHSHO, Inc., to several employees including Plaintiff, on February 17 – just 5
days before Plaintiff’s termination. Ms. Cowden shared a story about baseball legend
Jackie Robinson in a meeting held during Black History month. Plaintiff testified that
Cowden “looked at” Plaintiff while relating the story of how Jackie Robinson was
instructed by his managers to not give in to the taunts of either the crowds in the stands
or opposing players.

Plaintiff testified that Ms. Cowden asked Plaintiff (the only black

person present) if she “knew” the story. Plaintiff did not relate her alleged discomfort to
anyone at the time. In fact, although she testified that she felt “uncomfortable” at the
time, she only later interpreted Cowden’s comments as an indirect warning that she, as
a black person, “need[ed] to stay in my place.” (Doc. 23, Deposition at 98, 107).
This single instance of a story being told about Jackie Robinson is insufficient to
demonstrate severe or pervasive racially-motivated conduct.

The story is racially

neutral, and does not suggest any overt racially motivated animus, even when
Cowden’s alleged query to Plaintiff if she “knew” the story is taken into account. The
16

story was not told by one of Defendant’s employees, and Plaintiff did not let any
supervisory personnel know that she felt uncomfortable in any way. The Defendant
cannot be held liable for a single incident that Plaintiff (after the fact) came to
subjectively believe was intended as a form of racial intimidation, given that Plaintiff
failed to promptly notify Defendant and the incident involved no obvious racial animus.
See, e.g., Williams v. CSX Transp. Co., Inc., 643 F.3d at 512 (holding that isolated
incidents will not suffice to prove sufficiently severe or pervasive race-based
harassment).
In addition, the Sixth Circuit has explained that “[t]he act of discrimination by the
employer in [a hostile work environment case involving coworkers] is not the
harassment, but rather the inappropriate response to the charges of harassment.”
McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005)(internal quotation marks
and citation omitted).

Here, Defendant was never put on notice by Plaintiff of her

concerns about the Jackie Robinson story or alleged race-based attitudes of nursing
staff until after her termination. Once Brian Coffey received Plaintiff’s complaint that
race played a role in her termination, Defendant took reasonable steps to investigate by
obtaining written statements that fully corroborated the previous verbal accounts of the
violations that led to Plaintiff’s termination. On the facts presented, Plaintiff has failed to
show disparate treatment or racially motivated harassment, or that the Defendant’s
response to her post-termination complaints was either indifferent or unreasonable.
Plaintiff also points to her termination papers as evidence of “harassment” but the
written violations stated therein suggest neither direct nor indirect racial animus.

17

Plaintiff’s subjective belief that she was unfairly terminated does not constitute evidence
of racial harassment. 7
With respect to disparate treatment, Plaintiff complains generally that white
employees new to their positions were permitted to “grow” into their supervisory
positions, while she was not provided the same consideration.

However, to prove

disparate treatment, a plaintiff must at a minimum produce evidence that establishes:
“(1) that [she] was a member of a protected class and (2) that for the same or similar
conduct [she] was treated differently than similarly-situated non-minority employees.”
Mitchell, 964 F.2d at 582-83(citing Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th
Cir. 1988)(additional citation omitted).

“In order to prove the second element…the

plaintiff must produce evidence that the relevant other employees are ‘similarly situated
in all respects.’” Hollins v. Atlantic Co., 188 F.3d 652, 659 (6th Cir.)(quoting Mitchell,
964 F.2d at 583). Here, Plaintiff offers no evidence of any similarly situated Caucasian
supervisor, who was not disciplined for similar conduct. Even if Plaintiff believes that
Defendant’s decision to terminate her was unfair, or overly abrupt, that subjective belief
does not translate to proof of an impermissible racial motive.
III. Conclusion and Recommendation
For the stated reasons, the undersigned hereby RECOMMENDS that the
Defendant’s Motion for Summary Judgment (Doc. 24) be GRANTED.

Plaintiff’s

complaint should be dismissed with prejudice, and this case be CLOSED.

7

As Defendant notes, although Plaintiff also testified that she believed that the termination papers
constitute “slander,” no claim of slander is included in her complaint.

18

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DEMETTRESS ARLENE BURNETT,

Case No. 1:11-cv-324

Plaintiff,

Spiegel, J.
Bowman, M.J.

v.

CARINGTON HEALTH SYSTEMS,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

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Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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