Evette Fields v. Fairfield Cnty Board of Developmental Disabilities , 507 F. App'x 549 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1258n.06
No. 12-3005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
EVETTE FIELDS, ) Dec 06, 2012
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
FAIRFIELD COUNTY BOARD OF ) SOUTHERN DISTRICT OF OHIO
DEVELOPMENTAL DISABILITIES, )
)
Defendant-Appellee. )
Before: MERRITT, McKEAGUE, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Plaintiff Evette Fields filed suit against defendant
Fairfield County Board of Developmental Disabilities (the Board) for alleged violations of the
Family Medical Leave Act of 1993 (FMLA) and Ohio’s anti-discrimination statutes. The district
court granted the Board’s motion for summary judgment on both claims. Fields challenges this
decision. We AFFIRM the judgment of the district court.
I. BACKGROUND
From March 2003 until June 30, 2007, Evette Fields worked as the administrative assistant
to John Pekar, the Board superintendent. Fields’s main duties included managing the business
functions of Pekar’s office; serving as his confidential secretary; and putting together the Board’s
packets for its monthly meetings, which contained information to be reviewed by the Board and
items for the Board’s action.
Initially, Fields also supervised the Board’s receptionist, Rhonda Alspach. When Alspach
complained that Fields mistreated her, the Board hired an independent management group to
investigate the matter. In addition to finding problems with Alspach’s job performance, the
investigator determined that there was a lack of trust between Alspach and Fields and that Fields
often used an inappropriate tone when addressing Alspach’s performance problems. The
investigator recommended that Alspach be removed from Fields’s supervision and, though observing
that there were potential problems with Fields’s trustworthiness, concluded that those problems
likely stemmed from her conflicts with Alspach and could be sufficiently resolved. Fields claimed
that the investigation soured her relationship with Pekar and caused her to mistrust him. Pekar and
human resources director Cindy Hillberry also noted that the investigation affected the relationship
between Fields and Pekar.
At some point after her transfer, Alspach began having problems with her new supervisor,
Nate Griffin. Observing that Griffin was very disrespectful to Alspach, Fields complained to both
Pekar and a Board member that these problems, though comparable to those alleged as to her, were
not investigated and that she was held to a different standard than Alspach’s male supervisor.
In August 2005, Pekar formally disciplined Fields for errors in Board packets. Pekar
indicated that he had discussed the problem with Fields in February 2005, yet errors continued to be
present. Pekar also noted that several Board members expressed concerns regarding the errors.
Although she took responsibility for clerical errors, Fields claimed that she received information
from other parties too late to include it in the packet or to review it before the packet was distributed.
In September 2005, the Board adopted a “Plan to Address Absenteeism,” which evaluated
sick leave usage quarterly based on the preceding twelve months. The policy established four levels
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of sick leave usage and specifically excluded FMLA leave. Under Level 1, an employee who worked
260 days a year for eight hours a day and used 40 hours or more of sick leave received a notice, and
although no disciplinary action was taken, the employee could request a meeting with a supervisor
to discuss the circumstances. Under Level 2, an employee who used 80 or more hours of sick leave
received a notice; was required to meet with a supervisor; and was required to submit a doctor’s
excuse for any absences during the subsequent three months. No disciplinary action was taken until
sick leave usage reached Levels 3 and 4.
The Board had specific procedures for taking FMLA leave, requiring medical certification
from a health care provider in certain circumstances. In December 2005, Fields took FMLA leave;
although the record does not include Fields’s leave requests, the Board’s sick leave usage report
indicates that three days were initially classified as FMLA leave.
At some point in her tenure, Fields applied for a position with quality control. Though she
was ultimately informed that a degree was a mandatory requirement for the position and she did not
hold one, Fields was upset after finding out secondhand that Nate Griffin hired a male for the
position. Fields informed Pekar that she overheard Griffin state that he wanted to hire a male. Fields
also complained in e-mails to former Board employee Lea Pennington about what she believed were
discriminatory practices by the Board. On March 13, 2006, Fields sent Pennington an e-mail stating
that she did not “have the right anatomy” for the quality control position. Complaining of age and
gender discrimination, she noted that another person, who was apparently disrespectful to her
superiors, received a raise and she jokingly wrote that only a person under 40 would be so rewarded.
Pennington wrote that Fields should “[s]ue them. No kidding[.]” Fields subsequently requested and
the next day received contact information for the Ohio Civil Rights Commission.
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During this March time frame and unbeknownst to Fields, Pekar began having all her e-mails
forwarded to him. He claimed that he was concerned about Fields’s opinion of him and suspected
that she was discussing their working relationship with others. Because human resources director
Hilberry “heard through the grapevine” that Fields was threatening to sue the Board for
discrimination after she was not hired for the quality control position, Hillberry requested that Griffin
document his interactions with Fields. Griffin’s documentation was initially dated March 14, 2006
and was updated two days later.
In May 2006, Fields submitted FMLA certification for surgery that occurred in late April.
The following month, she received the first of three Level 1 sick leave usage notices from Pekar,
which indicated that she had taken 67 hours of leave since May 12, 2006. Fields sent a memo to
Pekar explaining that much of the time was for an ongoing condition that had been corrected by the
April surgery and that she had provided physician’s slips with her leave requests. Pekar directed
Fields to Tracey Lee, who was responsible for recording FMLA leave. Fields sent a memo to Lee,
copying both Pekar and Hillberry, which stated that four dates—December 15, 2005; April 5, 2006;
April 6, 2006; and April 26, 2006—should have been designated as FMLA leave. Fields then sent
an e-mail to Hillberry on June 29, 2006, asking whether the dates could be designated as FMLA
leave. Hillberry explained that a doctor’s excuse was not the same thing as FMLA certification and
that while Fields had submitted the appropriate paperwork for her surgery, she had not done so for
the four dates in question. After Fields sent a second e-mail claiming that she had submitted the
correct paperwork, Hillberry stated that Pekar could decide whether to designate the leave
retroactively. He subsequently did so.
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Between July and August 2006, Pekar documented several instances of work performance
problems and claimed that his communication with Fields during this time continued to suffer. On
August 31, Hillberry informed Fields that a particular item needed to be added to the Board’s
agenda. Hillberry sent a follow-up e-mail pointing out that the item did not make it onto the agenda.
On December 4, 2006, Fields received her second Level 1 sick leave notice, which noted that
she had used 75 hours of sick leave since October 1. The next day, Fields requested copies of her
sick leave usage reports from Pekar. On January 3, 2007, Fields received her third Level 1 sick leave
notice, which noted that she had used 60 hours of sick leave since December 8, 2006. Fields met
with Pekar and told him that she believed she was being disciplined for taking FMLA leave,
although she conceded that Pekar “may have” informed her that the notices were not disciplinary in
nature. Hillberry also explained to Fields in an e-mail that the notifications were meant to inform
her of sick leave usage and did not constitute discipline. On January 17, 2007, Hillbery informed
Fields that the disputed dates would be retroactively designated as FMLA leave if Fields provided
proper medical documentation. Hillberry agreed to obtain the documentation by fax, and all four
dates were retroactively designated.
Fields took FMLA leave in January, February, and March 2007. On March 19, Pekar sent
an e-mail to Hillberry complaining about Fields’s delay in informing him of a new Board
appointment. Pekar sent a memo to Fields the next day requesting that all correspondence be given
to him on the day it was received. On March 21, Hillberry sent an e-mail to Pekar complaining that
Fields did not send a motor vehicle record request for a new hire in a timely manner and that the
employee ended up having an unacceptable record. Hillberry noted that this problem had occurred
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previously and that Fields had then shared information about Pekar’s driving record to “cover her
own tracks.”
On that same day, Fields was informed that she would be placed on paid administrative leave
until the expiration of her contract and that her contract would not be renewed. She was also
provided with a performance evaluation, in which Pekar stated that he hesitated to give Fields
confidential materials because of her “negative attitude”; her expressed mistrust in him; and an
incident in which she disclosed information from an employee’s personnel file. Pekar also noted that
Fields miscommunicated information to other employees about sick leave usage notices, informing
them incorrectly that the notices constituted disciplinary action. Hillberry observed that several
employees had been upset when Fields told them that the notices were disciplinary in nature because
the employees had been previously told that they were not. Pekar viewed Fields as stubbornly
maintaining that all sick leave usage notifications were disciplinary write-ups despite several
supervisory explanations to the contrary. Moreover, he noted that Fields misfiled Level 1 and 2
notices in the disciplinary section of personnel files. When one of the employees was investigated
for a separate disciplinary action, the sick leave notice was initially considered by the investigator,
which Pekar thought could have affected the outcome. Pekar also noted that Fields had problems
in the area of job performance, specifically in her preparation of Board packets. He viewed Fields
as not taking this responsibility seriously and instead blaming others for her mistakes.
In sum, Pekar viewed Fields as having two “problem areas” affecting her continued
employment with the Board: (1) the inconsistent quality in Board packets and (2) the lack of trust
in their relationship. As to the second point, Pekar claimed to question Fields’s “confidentiality and
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loyalty” in part because “[s]he has been heard to communicate to other staff that she is suing the
Board and me for ‘harassment.’”
Fields filed suit against the Board on December 1, 2009, initially asserting only FMLA-based
claims. She alleged that the Board unlawfully used FMLA-protected absences as a negative factor
that played a part in her discharge; discharged her in retaliation for taking FMLA leave; disciplined
her and ultimately discharged her for complaints regarding the manner in which her FMLA-protected
absences were treated; required her to complete work while on FMLA leave; and discouraged her
use of FMLA leave. Fields also alleged that these violations were “willful.” Fields subsequently
amended the complaint to include claims under Ohio law, alleging that the Board retaliated against
her for complaining about age and/or gender discrimination.
The Board filed a motion for summary judgment, contending that Fields’s FMLA claim was
untimely and that she could not establish violations of the FMLA or state law. Although ruling that
the FMLA claim was timely, the district court granted the Board’s motion on Fields’s FMLA and
state law claims. Fields appeals only the FMLA retaliation claim and state law claims.
II. DISCUSSION
A. Standard of Review
This court reviews a district court’s grant of summary judgment de novo. Chapman v. United
Auto Workers Local 1005, 670 F.3d 677, 680 (6th Cir. 2012). “Summary judgment is appropriate
only if the pleadings, depositions, answers to interrogatories, and affidavits show there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Bobo
v. United Parcel Serv., Inc., 665 F.3d 741, 748 (6th Cir. 2012) (citing Fed. R. Civ. P. 56(a) & (c)).
The burden falls on the moving party to demonstrate that no genuine issues of material fact exist.
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See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether summary judgment
is appropriate, appellate courts view the facts, including all inferences, in the light most favorable
to the nonmoving party. Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A jury, rather
than a judge, is responsible for making credibility determinations, weighing the evidence, and
drawing legitimate inferences from the facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The central inquiry at the summary judgment stage “is whether the evidence presents a
sufficient disagreement to require submission of [the plaintiff’s] claims to a jury or whether the
evidence is so one-sided that [the defendant] must prevail as a matter of law.” Ondricko v. MGM
Grand Detroit, LLC, 689 F.3d 642, 648 (6th Cir. 2012) (citing Anderson, 477 U.S. at 251-52).
Because the Board moved for summary judgment, this court must view the evidence in the light most
favorable to Fields and draw all reasonable inferences in her favor in determining whether a dispute
of material fact exists.
B. FMLA Retaliation Claim1
The FMLA allows an eligible employee to take a total of twelve weeks of leave each year
in order to care for certain family members or if the employee has “a serious health condition that
makes [him or her] unable to perform the functions of the position.” 29 U.S.C. § 2612(a)(1)(A)–(D).
Covered employers are prohibited from “discharg[ing] or in any other manner discriminat[ing]
against any individual for opposing any practice made unlawful” under the statute. 29 U.S.C. §
1The district court concluded that Fields’s claim was timely after determining that the three-
year statute of limitations for willful violations of the FMLA was applicable. See 29 U.S.C. §
2617(c)(2). Although Fields and the Board present argument on the matter, the Board did not
explicitly challenge the district court’s ruling. We therefore decline to address this issue and assume
for the sake of argument that Fields’s claim was timely.
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2615(a)(2). Employers cannot use FMLA leave as a negative factor in employment actions. Hunter
v. Valley View Local Schs., 579 F.3d 688, 690 (6th Cir. 2009). This court applies the familiar
burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
retaliation claims brought under the FMLA. Edgar v. JAC Prods. Inc., 443 F.3d 501, 508 (6th Cir.
2006). As this court has explained,
On a motion for summary judgment, a district court considers whether there is
sufficient evidence to create a genuine dispute at each stage of the McDonnell
Douglas inquiry. Thus, the plaintiff must first submit evidence from which a
reasonable jury could conclude that a prima facie case of discrimination has been
established. The defendant must then offer sufficient evidence of a legitimate,
nondiscriminatory reason for its action. If the defendant does so, the plaintiff must
identify evidence from which a reasonable jury could conclude that the proffered
reason is actually a pretext for unlawful discrimination.
Back v. Nestle USA, Inc., 694 F.3d 571, 576 (6th Cir. 2012) (citations and internal quotation marks
omitted). The plaintiff’s burden in establishing pretext “then ‘merges with the ultimate burden of
persuading the court that she has been the victim of intentional discrimination.’” Provenzano v. LCI
Holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256 (1981)). “In evaluating pretext and the plaintiff’s ultimate burden, the court
should consider all evidence in the light most favorable to the plaintiff, including the evidence
presented in the prima facie stage.” Id. The district court concluded that Fields did not establish a
prima facie case.
In order to make out a prima facie case of retaliation under the McDonnell Douglas
framework, Fields must demonstrate that: (1) she engaged in an activity protected by the FMLA;
(2) she suffered an adverse employment action; and (3) there was a causal connection between her
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protected activity and the adverse employment action. Bryson v. Regis Corp., 498 F.3d 561, 570 (6th
Cir. 2007).
Protected activity entails opposing a practice that is made unlawful under the FMLA. See
29 U.S.C. § 2615(a)(2). An employee would be protected for opposing an employer’s use of FMLA
leave as a negative factor in a disciplinary action. See 29 C.F.R. § 825.220(c) (“[E]mployers cannot
use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions
or disciplinary actions; nor can FMLA leave be counted under ‘no fault’ attendance policies.”).
Fields’s deposition testimony states that she told Pekar that she believed she was being disciplined
for taking FMLA leave. She also alleges that she held a good faith belief that she was subject to
potential discipline by the initial inclusion in her sick leave usage notices of four dates she claimed
should be designated FMLA leave. Because non-renewal of Fields’s contract is an adverse
employment action, we will assume Fields established the first factor—engaging in protected
activity—and turn to the third factor—causal connection between her protected activity and the
adverse employment action.
Even viewing the evidence in the light most favorable to her, Fields cannot establish a causal
connection between her FMLA leave complaints and the non-renewal of her contract. The sick leave
usage policy was mentioned in Fields’s performance evaluation; however, Pekar’s reference is to
Fields’s stubborn misunderstanding of policies explained to her on a number of occasions and the
problems created by her insistence on providing this misinformation to other employees or placing
it in their files, issues Pekar could consider—along with her other performance problems—when
deciding whether to renew Fields’s contract. Moreover, there is no genuine dispute of material fact
that the leave notices were not discipline under the policy or that the hours initially included in the
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notice were properly designated as FMLA leave after Hillberry sought and obtained the necessary
medical documentation for proper certification.
Fields failed to establish her prima facie case and the district court’s ruling is affirmed.
C. Gender and Age Discrimination Pursuant to Ohio Law
In addition to her retaliation claim under the FMLA, Fields also asserts a retaliation claim
under Ohio law, which prohibits employers from discriminating on the basis of sex.2 Ohio Rev.
Code Ann. § 4112.02(A). It is unlawful “[f]or any person to discriminate in any manner against any
other person because that person has opposed any unlawful discriminatory practice defined in this
section.” Ohio Rev. Code Ann. § 4112.02(I). “Ohio courts examine state employment
discrimination claims in accordance with federal case[s] interpreting Title VII.” Majewski v.
Automatic Data Processing, Inc., 274 F.3d 1106, 1115 (6th Cir. 2001). Therefore, the three-step
McDonnell Douglas framework analyzed above is also applicable to Fields’s state law claim.
Graham v. Best Buy Stores, L.P., 298 F. App’x 487, 495 (6th Cir. 2008).
The Board claims that Fields’s e-mail complaints about gender discrimination do not
constitute statutorily protected activity. We disagree. First, an employee may complain about
discrimination to anyone. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000)
(stating that complaints “may be made to a co-worker, newspaper reporter, or anyone else about
2
Any of Fields’s claims based on age discrimination are untimely, as they must be brought
“within one hundred eighty days after the alleged unlawful discriminatory practice occurred.” Ohio
Rev. Code Ann. § 4112.02(N). Fields’s state retaliation claims, however, include complaints of
gender discrimination, which are subject to a six-year statute of limitations. See Meyer v. United
Parcel Serv., Inc., 122 Ohio St. 104, 2009-Ohio-2463, 909 N.E.2d 106, 111-12, at ¶¶ 23-24
(discussing the Ohio Supreme Court’s decision holding that Ohio Rev. Code Ann. § 2305.07’s
general six-year statute of limitations was applicable to sex discrimination claims). Accordingly,
any claims based on gender discrimination are timely.
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alleged discrimination against oneself or others”). The key for Fields’s retaliation claim is that the
manner of her opposition be deemed reasonable, Niswander v. Cincinnati Ins. Co., 529 F.3d 714,
721 (6th Cir. 2008), and that the Board had knowledge of her complaints. See Szeinbach v. Ohio
State Univ., No. 11-3002, 2012 WL 3264398, at *2 (6th Cir. Aug. 10, 2012) (noting that a plaintiff’s
prima facie retaliation case requires demonstration that “the defendant knew of th[e] exercise of
protected rights”). The Board does not argue that Fields’s complaints were unreasonable. While her
e-mail complaints were not made directly to Pekar or the Board, it is undisputed that the e-mails
were viewed by Pekar, who was in charge of deciding whether to renew Fields’s contract.
Second, the statements in Fields’s e-mails were not generalized complaints about
discrimination. The Board alleges that Fields was required to take an “overt stand” against gender
discrimination for her activity to be considered statutorily protected. See Comiskey v. Auto. Indus.
Action Grp., 40 F. Supp. 2d 877, 899 (E.D. Mich. 1999). However, the Comiskey court relied on
Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989), which merely
held that “a vague charge of discrimination in an internal letter or memorandum is insufficient to
constitute opposition to an unlawful employment practice.” In that case, Booker, who was demoted
from a managerial position for performance problems, sent a letter to his employer blaming his
problems on his supervisor and making an allegation arguably indicating that the supervisor viewed
black employees as less capable. Id. at 1309. The court found that the letter did not oppose any
unlawful activity by the employer but was instead questioning the employer’s decision and
“suggest[ing] that the focus of the company’s inquiry should be on [Booker’s] supervisor.” Id. at
1313. The content of Fields’s e-mails easily rises above this threshold, as she complained that she
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was passed over for a job because of her gender and specifically requested information from the Ohio
Civil Rights Commission.
In addition, Fields complained to both Pekar and a Board member regarding her perception
of unequal standards for male and female supervisors. Though the Board objects to this evidence
because it was not specified in Fields’s complaint, on summary judgment the court is to view the
record in its entirety and construe the facts contained within it in Fields’s favor. Cf. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (noting that, in motions for summary
judgment, “the court must review the record taken as a whole”) (internal quotation marks omitted)).
Based on these facts, the district court correctly found that Fields engaged in statutorily protected
activity.
The Board further argues that Fields has not presented evidence establishing a causal
connection between her protected activity and its decision not to renew her contract. However, Pekar
specifically mentioned Fields’s statements to others—suing for harassment—as one of the reasons
for the mistrust between them. Because lack of trust was one basis for refusing to renew Fields’s
contract, a causal connection between the two exists. The Board, however, asserts that the trust
between Fields and Pekar began to deteriorate several years before he saw the e-mails about a
lawsuit, thus defeating a causal connection between the decision not to renew Fields’s contract and
the e-mails. However, a reasonable inference from the timing is that Pekar’s concern regarding
Fields’s trustworthiness increased after e-mail monitoring revealed that Fields complained of gender
discrimination. Importantly, the day after Fields sent the e-mail complaining about discrimination,
Hillberry “heard through the grapevine” that Fields might sue the Board for discrimination and asked
Griffin to document his interactions with Fields. The timing of these actions, coupled with Pekar’s
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statement in the performance evaluation, is sufficient to establish a causal connection. Accordingly,
Fields has established her prima facie case.
Turning to the next stage, the Board presents two legitimate, nondiscriminatory reasons for
its decision: (1) Fields’s attitude and the lack of trust between Pekar and Fields; and (2) her job
performance. These reasons satisfy the Board’s relatively light burden of production at this stage.
See Provenzano, 663 F.3d at 814-15 (requiring that the employer merely raise a genuine issue of
material fact as to whether it discriminated against the employee).
At the final stage of the McDonnell Douglas analysis, “the presumption of discrimination is
gone and the plaintiff must demonstrate that the employer’s proffered nondiscriminatory reason was
not the true reason for the employment decision, but rather a pretext for discrimination.” Id. at 815.
“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, Inc., 317 F.3d 564, 576 (6th Cir. 2003) (en
banc) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)). And “the ultimate
question remains whether [Fields] presented evidence from which a reasonable jury could logically
infer” that the Board chose not to renew her contract for impermissible reasons. Ondricko, 689 F.3d
at 651. “In evaluating pretext and the plaintiff’s ultimate burden, the court should consider all
evidence in the light most favorable to the plaintiff, including the evidence presented in the prima
facie stage.” Provenzano, 663 F.3d at 812.
Fields fails to specifically address the pretext stage regarding her sex discrimination claim.
However, evidence supporting the causal connection step of the prima facie case is also germane to
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pretext though, as noted above, it must satisfy the more stringent standard at this final stage. The
Board’s first legitimate, nondiscriminatory reason—lack of trust—could potentially give rise to a
genuine issue of material fact as to whether it was pretextual in nature. The reasons for non-renewal
articulated in Fields’s performance evaluation were based, at least in part, on the information Pekar
gleaned from the “trapped” e-mails. He specifically mentioned the fact that Fields had indicated to
others that she might sue the Board in the evaluation.
As to the second reason—job performance—Fields failed to address how her job
performance was a pretextual reason for non-renewal of her contract. Fields was formally
disciplined in August 2005 for mistakes in the Board packets and those problems were documented
by Pekar. Although no further formal discipline was undertaken concerning those errors, complaints
about Fields’s work for the Board and problems with it continued and were documented until the
time her contract was not renewed. An e-mail between Hillberry and Pekar indicates that on two
occasions, Fields failed to request driving records for new hires in a timely manner. This resulted
in the new hires being employed by the Board for several months before it discovered that their
driving records were “unacceptable.” In response to these errors, Fields apparently accessed Pekar’s
driving record and shared this information with one of the employees. In August 2006, Hillberry
specifically instructed Fields to place an item on the Board’s agenda, yet Fields failed to do so.
Fields also received a memo from Pekar criticizing her failure to inform him of an important
appointment to the Board and instructing her to provide him with correspondence in a timely
manner. Fields does not dispute these job performance issues.
The timing surrounding Pekar’s e-mail surveillance, Hillberry’s instructions to document
interactions with Fields, and Pekar’s statements in the performance evaluation raises questions.
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However, at this final stage, Fields must show pretext. Instead, she ignores the legitimate reasons
offered concerning her job performance and fails to demonstrate that they were not the true reason
for the employment decision, but rather a pretext for discrimination. Though Fields offered evidence
that satisfies the causal connection step of her prima facie case, that evidence is insufficient to create
a genuine dispute of material fact that the job performance reasons offered by the Board are pretext
for discrimination. Fields failed to identify evidence from which a reasonable jury could conclude
that the Board’s legitimate, nondiscriminatory reason was pretextual.
III. CONCLUSION
For the foregoing reasons, the district court’s grant of summary judgment in favor of the
Board is AFFIRMED.
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