Peggy Blizzard v. Marion Technical College , 698 F.3d 275 ( 2012 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0362p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
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PEGGY BLIZZARD,
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Plaintiff-Appellant,
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No. 11-3441
v.
,
>
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MARION TECHNICAL COLLEGE; JEFFREY
Defendants-Appellees. N-
NUTTER,
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:09-cv-1643—James G. Carr, District Judge.
Argued: May 31, 2012
Decided and Filed: October 19, 2012
Before: SILER and WHITE, Circuit Judges; REEVES, District Judge.*
_________________
COUNSEL
ARGUED: Thomas A. Sobecki, Toledo, Ohio, for Appellant. Drew C. Piersall,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
ON BRIEF: Thomas A. Sobecki, Toledo, Ohio, for Appellant. Drew C. Piersall, Julie
B. Smith, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellees.
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OPINION
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DANNY C. REEVES, District Judge. This case arises from Appellant Peggy
Blizzard’s termination from her employment with Appellee Marion Technical College.
Blizzard filed suit against her supervisor and the college asserting claims for age
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 11-3441 Blizzard v. Marion Technical, et al. Page 2
discrimination and retaliation, as well as intentional infliction of emotional distress and
breach of public policy. The district court granted summary judgment in favor of the
defendants on all claims. Blizzard now appeals the dismissal of her age discrimination
and retaliation claims. For the reasons described below, we affirm the judgment of the
district court.
I.
Blizzard was born on January 18, 1951. In 1992, she was hired as a part-time
Associate Accounts Payable Clerk in the Business Office at Marion Technical College
(“MTC”). Blizzard was promoted to Accounts Payable Clerk 1 in 1996. She was
terminated from that position in April 2008, at 57 years of age.
Blizzard’s supervisor, Jeffrey Nutter, began as MTC’s Controller on April 29,
2001. In this position, he oversaw the MTC business office and its staff: Blizzard, Betty
MacNail, and Jean Thomas (who was born on July 14, 1964). Nutter’s superiors at MTC
were Dr. Richard Bryson, President, and Doug Boyer, Vice President of Financial and
Administrative Services.1 In 2005, MTC began installing a new management
information system on its campus. The implementation of the new software was
overseen by Nutter and Joy Moore, Director of Management Information Systems.
Training sessions for the new technology began in March 2006. Although the parties
disagree as to Blizzard’s level of understanding of the software, it is undisputed that she
experienced difficulty with the system. It is at this point that the parties diverge
regarding the facts surrounding Blizzard’s employment difficulties and her subsequent
termination.
MTC asserts that Blizzard was resistant to the new software and fell behind in
learning to use it. According to MTC, Blizzard’s subsequent issues at work arose from
her difficulties adapting to the new technology. Blizzard, on the other hand, contends
that her problems stemmed from Nutter’s treatment of her. She alleges that Nutter gave
1
For purposes of this action, other relevant MTC employees include: Rick Heisel, Payroll
Manager; Dan Hauenstein, Director of Human Resources; Teresa Parker, MTC’s Civil Rights Compliance
Officer; and Linda King, Human Resources Specialist.
No. 11-3441 Blizzard v. Marion Technical, et al. Page 3
Thomas special treatment. Specifically, Blizzard maintains that Nutter was more lenient
with Thomas regarding infractions such as taking long breaks, talking on her cell phone,
and socializing in the office. In addition, Blizzard alleges that Nutter gave Thomas more
opportunities for training on the new software programs and sometimes required
Blizzard to work extra hours so that Thomas could attend training sessions.
In 2006 and 2007, Blizzard made several oral complaints to various persons at
MTC. Blizzard complained to Parker on May 25, 2006 that she was working longer
hours than Thomas. Several days later, she told Hauenstein that she was treated
differently than younger employees because they were getting away with bad behavior
at work. Blizzard also told Hauenstein that she felt Nutter treated her in an emotionally
abusive and intimidating manner, while younger employees were treated with respect
and kindness. In December 2007, Blizzard told King that she was considering filing a
written grievance.
In June 2006, Nutter evaluated Blizzard’s work performance, rating her as falling
below expectations in several areas including attitude, judgment, team effort/leadership,
and technical skills. Blizzard submitted a response to the evaluation, disputing Nutter’s
appraisal of her work. However, according to MTC, Blizzard’s poor performance
continued after the evaluation. On April 19, 2008, Nutter wrote a memo entitled
“Conduct of Peggy Blizzard,” which documented his reasons for recommending her
termination. Boyer approved the decision to terminate Blizzard’s employment and
Hauenstein dismissed her three days after Nutter’s memo.
After Blizzard’s dismissal, Thomas was assigned to perform the majority of
Blizzard’s job responsibilities in addition to her own. In August 2008, MTC hired 28-
year-old Kristina Walters as a cashier. Three months later, MTC hired Janice Teeter to
perform the Accounts Payable Clerk duties. Teeter was 51 years old when she accepted
the position. Although she began in a temporary capacity, Teeter was hired as a full-
time employee on July 20, 2009.
Blizzard filed a charge with the Equal Employment Opportunity Commission
(“EEOC”) on June 30, 2008, claiming retaliation, age discrimination, and sex
No. 11-3441 Blizzard v. Marion Technical, et al. Page 4
discrimination. On July 16, 2009, she filed a complaint against MTC and Nutter2 in the
Northern District of Ohio, asserting claims for age discrimination and retaliation under
the federal Age Discrimination Enforcement Act (“ADEA”) and Ohio law, as well as
claims for “Breach of Policy” and intentional infliction of emotional distress. MTC
moved for summary judgment on all of the claims against it on July 8, 2010. On March
30, 2011, the district court granted MTC’s motion and entered judgment in favor of the
defendants. Blizzard timely appealed.
II.
This court reviews a district court’s grant of summary judgment de novo. ACLU
of Ky. v. Grayson Cnty., 591 F.3d 837, 843 (6th Cir. 2010); Watkins v. City of Battle
Creek, 273 F.3d 682, 685 (6th Cir. 2001). Summary judgment is required when the
moving party shows, using evidence in the record, “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); see Fed. R. Civ. P. 56(c)(1). The party moving for summary judgment
bears the burden of showing conclusively that no genuine issue of material fact exists.
CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008). Once a moving party has met
its burden of production, “its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Reviewing the facts in the light most favorable
to the nonmoving party, the court must ultimately determine “‘whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.’” Vill. of Oakwood v. State Bank
& Trust Co., 539 F.3d 373, 377 (6th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986)); see Matsushita, 475 U.S. at 586.
2
The court will refer to the defendants collectively as MTC.
No. 11-3441 Blizzard v. Marion Technical, et al. Page 5
A. Age Discrimination Claims
The ADEA prohibits an employer from discharging an individual “because of
such individual’s age.” 29 U.S.C. § 623(a)(1). Section 4112.14 of the Ohio Revised
Code provides that no employer shall “discharge without just cause any employee aged
forty or older who is physically able to perform the duties and otherwise meets the
established requirements of the job.” Ohio Rev. Code Ann. § 4112.14(A). Age
discrimination claims brought under the Ohio statute are “analyzed under the same
standards as federal claims brought under the [ADEA].” Wharton v. Gorman-Rupp Co.,
309 F. App’x 990, 995 (6th Cir. 2009) (citing Minadeo v. ICI Paints, 398 F.3d 751, 763
(6th Cir. 2005)).
The burden of persuasion is on the plaintiff to show that “age was the ‘but-for’
cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
177 (2009). A plaintiff “may establish a violation of the ADEA by either direct or
circumstantial evidence.” Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009).
Where, as here, the plaintiff fails to present direct evidence of age discrimination, the
claim is analyzed using the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under McDonnell Douglas and its progeny, once the
plaintiff succeeds in making out a prima facie case of age discrimination, the defendant
must “articulate some legitimate, nondiscriminatory reason” for the termination. Id. at
802. “If the defendant meets this burden, then the burden of production shifts back to
the plaintiff to demonstrate that the proffered reason is a pretext.” Sutherland v. Mich.
Dep’t of Treasury, 344 F.3d 603, 615 (6th Cir. 2003).
1. Prima Facie Case
To establish a prima facie case of age discrimination, a plaintiff must show:
“(1) membership in a protected group; (2) qualification for the job in question; (3) an
adverse employment action; and (4) circumstances that support an inference of
discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002). An allegation
that the plaintiff was replaced by a younger individual supports an inference of
No. 11-3441 Blizzard v. Marion Technical, et al. Page 6
discrimination only if the difference in age is significant. See Grosjean v. First Energy
Corp., 349 F.3d 332, 336 (6th Cir. 2003) (explaining that an inference of discriminatory
intent cannot be “drawn from the replacement of one worker with another worker
insignificantly younger” (internal quotation marks omitted)).
Here, MTC argues that Blizzard failed to meet her burden of establishing a prima
facie case of age discrimination. Although it concedes that she has presented evidence
to support the first three elements of her claim, MTC maintains that Blizzard “cannot
establish the fourth prong of her prima facie case as her replacement was not
significantly younger.” Blizzard, on the other hand, asks this court to affirm the district
court’s conclusion that the age difference between Blizzard and her replacement was
significant.
Although Blizzard argues that Thomas replaced her, the district court correctly
found that Janice Teeter (born on July 13, 1957) was Blizzard’s replacement.3 Thomas
assumed many of Blizzard’s job duties after the termination. However, an employee’s
assumption of a terminated co-worker’s job duties does not constitute replacement for
purposes of an ADEA claim. Id. (“A person is not replaced when . . . the work is
redistributed among other existing employees already performing related work.”
(internal quotation marks omitted)). Rather, a “‘person is replaced only when another
employee is hired or reassigned to perform the plaintiff’s duties.’” Id. (quoting Barnes
v. GenCorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)). Although Thomas assumed
Blizzard’s responsibilities temporarily, Teeter was hired to fill the position that Blizzard
had previously occupied. Teeter, who is six and a half years younger than Blizzard, was
Blizzard’s replacement. This conclusion is not undermined by the fact that there was a
lapse in time between Blizzard’s termination date and Teeter’s hiring date. See id. at
334, 335-36 (finding that plaintiff’s replacement was the person who was hired
“[e]ventually,” rather than the co-worker who assumed job duties initially).
3
Blizzard argued before the district court that Walters was her replacement, but the court rejected
that assertion because working at the cashier window “did not make up a substantial portion of Blizzard’s
duties.” Blizzard does not challenge this conclusion on appeal.
No. 11-3441 Blizzard v. Marion Technical, et al. Page 7
This court established a bright-line rule in Grosjean when it held that “in the
absence of direct evidence that the employer considered age to be significant, an age
difference of six years or less between an employee and a replacement is not
significant.” Id. at 340. However, while an age difference of ten or more years is
generally considered significant, id. at 336, replacement of the employee by a person
who is six to ten years her junior must be considered on a case-by-case basis. Cf. id. at
340 (explaining that bright-line rule “does not encroach on our precedent holding that
eight years can be a significant age difference”). Thus, Grosjean essentially created a
zone of discretion in age-discrimination cases involving replacement by a person who
is between six and ten years younger than the plaintiff. Here, the district court
concluded that, although the six-and-a-half year age difference between Blizzard and
Teeter “is perhaps not the best evidence to create an inference of age discrimination,”
it was nonetheless sufficient to create an issue of material fact at the summary judgment
stage. The district court’s decision was a reasonable exercise of its discretion under
Grosjean.
2. Pretext
Because Blizzard established a prima facie case of age discrimination, the burden
shifted to MTC to articulate a nondiscriminatory reason for dismissing Blizzard. The
district court determined that MTC met this burden, and found the following to be
legitimate business reasons for the adverse employment decision:
Blizzard failed to follow proper procedures in using the new software
systems, which resulted in unmanageable vendor lists, duplicate
payments to vendors and errors in processing accounts payable receipts.
She was unaccountably absent from her work area, she failed to perform
necessary functions of her job and exhibited a general unwillingness to
cooperate with other employees in the business office or to attend
meetings and training on the new software systems. She resisted changes
to what she perceived to be the duties of the Accounts Payable Clerk job.
On appeal, Blizzard argues that the legitimate business reasons described by the
district court are not the same as those reasons relied upon by MTC. She asserts that her
letter of termination is the only proper statement of the reasons behind her termination.
No. 11-3441 Blizzard v. Marion Technical, et al. Page 8
However, a formal termination letter is not the only evidence a court may use to
determine the reasons for an employee’s dismissal. Cf. Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 350-51 (6th Cir. 1998) (looking to employer’s memorandum
in support of its motion for summary judgment for the “legitimate business reason” for
the decision to terminate the employee). And, as MTC points out, the district court’s
findings were supported by the 2006 performance evaluation and the April 19, 2008
memorandum from Nutter to Hauenstein. As a result, the district court correctly
identified legitimate, nondiscriminatory reasons for MTC’s termination of Blizzard’s
employment.
When an employer offers nondiscriminatory reasons for an adverse employment
action, the burden shifts back to the employee to prove that the stated reason for her
termination is pretextual. At this stage, the plaintiff has the burden to produce
“sufficient evidence from which a jury could reasonably reject [the employer’s]
explanation of why it fired her.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.
2009). She can accomplish this by proving “‘(1) that the proffered reasons had no basis
in fact, (2) that the proffered reasons did not actually motivate [her discharge], or (3) that
they were insufficient to motivate discharge.’” Chattman v. Toho Tenax Am., Inc., 686
F.3d 339, 349 (6th Cir. 2012) (emphasis in original) (quoting Manzer v. Diamond
Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). The three-part test need not
be applied rigidly. Rather, “[p]retext is a commonsense inquiry: did the employer fire
the employee for the stated reason or not?” Chen, 580 F.3d at 400 n.4.
Blizzard argues that MTC’s proffered reasons have no basis in fact. She
contends that her colleagues, such as Axline, Rodman, and Langdon, “spoke glowingly
of her work.” However, these opinions were formed from sporadic interactions with
Blizzard. For instance, although Axline testified that she “never had any problem” with
Blizzard’s performance, she also indicated that in their professional capacities, their
paths crossed only once or twice per month. Similarly, Rodman’s assertion that Blizzard
was “conscientious in assisting” her with billing problems was based on monthly
communications. That coworkers who interacted with her infrequently found nothing
No. 11-3441 Blizzard v. Marion Technical, et al. Page 9
in Blizzard’s work to complain about is not enough to show that MTC’s proffered
reasons have no basis in fact. Moreover, these opinions do not rebut MTC’s assertion
that Blizzard exhibited a general unwillingness to cooperate and work with other
employees in the College’s Business Office, because Axline, Rodman, and Langdon all
worked in different departments within MTC.
Blizzard also relies on a letter of reference written by Heisel on August 4, 2006,
which described Blizzard as “hard working,” “dedicated,” and “productive.” Unlike
Axline, Rodman, and Langdon, Heisel did work in the Business Office alongside
Blizzard. However, Heisel left the Business Office in 2005, so his recommendation
letter was based on an opinion of Blizzard’s work formed over a year before the
implementation of the new software that precipitated most of her performance issues.
In short, this evidence does not establish that MTC’s stated reasons were pretext for a
discriminatory decision.
Finally, Blizzard argues that Hamilton v. General Electric Co., 556 F.3d 428 (6th
Cir. 2009), compels us to reverse the district court’s decision. In Hamilton, the
employee alleged that his employer, GE, waited for a “legal, legitimate reason to
fortuitously materialize,” and then used that reason to cover up its true motivation for
firing him. Id. at 436 (internal quotation marks omitted). The court concluded that the
employee had raised a question of fact sufficient to defeat a motion for summary
judgment because he “contested the facts underlying his termination” rather than simply
denying the employer’s stated reasons for his dismissal. Id. at 438. Here, Blizzard
submits her own deposition testimony and affidavit as proof that MTC’s reasons had no
basis in fact. She asserts that the district court improperly ignored her accounts because
she did not “merely offer her own opposing opinion of her qualifications, but challenged
the factual basis of the accusations.” We agree that, under Hamilton, the district court
should have “give[n] credence to the ‘evidence favoring the nonmovant as well as that
evidence supporting the moving party that is uncontradicted and unimpeached.’” Id. at
437 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)).
No. 11-3441 Blizzard v. Marion Technical, et al. Page 10
The district court erred when it failed to consider Blizzard’s opinion testimony
contesting the facts behind MTC’s stated reasons for firing her.
However, even if Blizzard did provide sufficient evidence to create a genuine
issue of material fact regarding the falsity of MTC’s proffered reasons, MTC would still
be entitled to summary judgment. This court has adopted a “modified honest belief”
rule, which provides that “‘for an employer to avoid a finding that its claimed
nondiscriminatory reason was pretextual, the employer must be able to establish its
reasonable reliance on the particularized facts that were before it at the time the decision
was made.’” Escher v. BWXT Y-12, LLC, 627 F.3d 1020, 1030 (6th Cir. 2010) (quoting
Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006)). The employee, in
turn, “must be afforded the opportunity to produce evidence to the contrary, such as an
error on the part of the employer that is ‘too obvious to be unintentional.’” Seeger v.
Cincinnati Bell Tel. Co., 681 F.3d 274, 286 (6th Cir. 2012) (quoting Smith v. Chrysler
Corp., 155 F.3d 799, 807 (6th Cir. 1998)). To overcome the employer’s invocation of
the honest belief rule, the employee “must allege more than a dispute over the facts upon
which [the] discharge was based. He must put forth evidence which demonstrates that
the employer did not ‘honestly believe’ in the proffered non-discriminatory reason for
its adverse employment action.” Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir.
2001).
Blizzard asserts that MTC failed to investigate the charges against her to
determine their veracity. However, it is not necessary “that the decisional process used
by the employer be optimal or that it left no stone unturned.” Smith, 155 F.3d at 807.
Blizzard has failed to produce evidence demonstrating that MTC’s reliance on the facts
before it at the time of the decision to dismiss her was unreasonable. Lacking such
proof, Blizzard’s “disagreement with [MTC’s] honest business judgment regarding [her]
work does not create sufficient evidence of pretext in the face of the substantial evidence
that [MTC] had a reasonable basis to be dissatisfied.” Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001). MTC is entitled to the
protections of the honest belief rule because it has shown that it made a “reasonably
No. 11-3441 Blizzard v. Marion Technical, et al. Page 11
informed and considered decision” to terminate Blizzard’s employment. Smith, 155 F.3d
at 807. Thus, Blizzard has failed to establish pretext on the grounds that MTC’s
“proffered reasons had no basis in fact.” Chattman, 686 F.3d at 349 (emphasis omitted).
Blizzard also argues that MTC’s articulated reasons for her dismissal were
insufficient to actually motivate her discharge. To establish the insufficiency of MTC’s
proffered reasons, Blizzard must show by a preponderance of the evidence that “other
employees, particularly employees not in the protected class, were not fired even though
they were engaged in substantially identical conduct to that which the employer contends
motivated its discharge of [Blizzard].”4 Manzer, 29 F.3d at 1084. Blizzard asserts that
Thomas had the same performance problems, but was not punished or terminated for
them.5 However, Thomas’s mistakes were not substantially identical to those made by
Blizzard. Id. For instance, Blizzard testified at her deposition that Thomas input vendor
information using four lines of text on the address lines instead of three lines, an error
that resulted in checks being returned to MTC. Blizzard, on the other hand, made
mistakes that resulted in double payments to vendors. These are not acts of comparable
seriousness. See Ercegovich, 154 F.3d at 352 (describing similarly situated employees
as individuals who “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” (internal quotation marks omitted)). Blizzard has failed to
establish that Thomas was “similarly situated with respect to the severity and frequency
of [her] performance errors,” Majewski, 274 F.3d at 1116, and the district court was
correct in concluding that “Thomas and Blizzard did not make the same mistakes at
work.”
4
Thomas was 44 years old in 2008 and was in the protected class when Blizzard was discharged.
5
Blizzard also alleges that Thomas “took excessively long lunch hours and trips to the bank, and
. . . excessively socialized.” However, there is evidence in the record that Thomas was disciplined for
some of these infractions.
No. 11-3441 Blizzard v. Marion Technical, et al. Page 12
Finally, Blizzard asserts that certain age-related comments made by Nutter
constitute circumstantial evidence of pretext.6 Blizzard points to three incidents to
support her assertion: (1) Nutter said to her in the fall of 2006: “Most of the people here
are the old people like you” [See R. 66 at 23]; (2) Nutter commented that another MTC
employee, Joe Liles, had “been in his job too long”; and (3) Nutter said that Boyer was
“lazy and didn’t work and wasn’t doing his job and had been there too long.” It is true
that “discriminatory remarks, even by a nondecisionmaker, can serve as probative
evidence of pretext.” Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 393 (6th Cir.
2009). However, the district court correctly noted that the second and third statements
are ambiguous because they could just as easily refer to tenure. Moreover, because the
discriminatory remarks were unrelated to the decision to dismiss Blizzard from her
employment, they do not constitute evidence of discrimination. See Geiger, 579 F.3d
at 621 (“‘Statements by nondecisionmakers, or statements by decisionmakers unrelated
to the decisional process itself [cannot] suffice to satisfy the plaintiff’s burden . . . of
demonstrating animus.’” (alterations in original) (quoting Bush v. Dictaphone Corp.,
161 F.3d 363, 369 (6th Cir. 1998))). Therefore, Nutter’s comments do not establish
pretext.
Although Blizzard has established a prima facie case of age discrimination, she
has failed to show that MTC’s proffered reasons for her termination were pretextual.
Therefore, the district court’s grant of summary judgment regarding Blizzard’s age
discrimination claim will be affirmed.
B. Retaliation Claims
The ADEA prohibits employers from retaliating against an employee for
opposing or reporting age discrimination. 29 U.S.C. § 623(d). Similarly, Ohio law
provides that it is unlawful for “any person to discriminate in any manner against any
6
This argument is, essentially, that MTC’s “proffered reasons did not actually motivate” her
discharge. Chattman, 686 F.3d at 349. This method of proving pretext “requires that the plaintiff ‘admit[]
the factual basis underlying the employer’s proffered explanation and further admit[] that such conduct
could motivate dismissal.’” Id. (alterations in original). This is problematic because, as discussed above,
Blizzard disputes the factual basis for MTC’s reasons for firing her.
No. 11-3441 Blizzard v. Marion Technical, et al. Page 13
other person because that person has opposed any unlawful discriminatory practice.”
Ohio Rev. Code Ann. § 4112.02(I). To establish a prima facie case of retaliation under
either federal or Ohio law, a plaintiff must show that “(1) she engaged in a protected
activity, (2) the defending party was aware that the [plaintiff] had engaged in that
activity, (3) the defending party took an adverse employment action against the
employee, and (4) there is a causal connection between the protected activity and [the]
adverse action.” Greer-Burger v. Temesi, 879 N.E.2d 174, 180 (Ohio 2007) (citing
Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990)); Imwalle v.
Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008). As with age
discrimination claims, once the plaintiff has established a prima facie case of retaliation,
the burden of production shifts to the defendant to “offer a non-discriminatory reason
for the adverse employment action.” Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495,
502 (6th Cir. 2009). If the defendant meets its burden, the plaintiff then has the burden
to “demonstrate that the proffered reason was mere pretext.” Id.Blizzard argues that the district court erred when it concluded that she failed to
demonstrate that she engaged in protected activity. Because Blizzard does not allege
that she was retaliated against for her participation in an EEOC proceeding, her claim
must be analyzed under the ADEA’s opposition clause, which prohibits discrimination
against an employee because she has “opposed any practice made unlawful by this
section.” 29 U.S.C. § 623(d). A plaintiff asserting such a claim must prove that she took
an “‘overt stand against suspected illegal discriminatory action’” to establish that she
engaged in a protected activity. Coch v. Gem Indus., No. L-04-1357, 2005 WL 1414454,
at *5 (Ohio Ct. App. June 17, 2005) (quoting Comiskey v. Auto. Indus. Action Grp.,
40 F. Supp. 2d 877, 898 (E.D. Mich. 1999)). In other words, an employee “‘may not
invoke the protections of the Act by making a vague charge of discrimination.’” Fox v.
Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007) (quoting Booker v. Brown &
Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989) (holding that complaints
about “ethnocism” were too vague to constitute protected activity)).
No. 11-3441 Blizzard v. Marion Technical, et al. Page 14
Blizzard asserts that she engaged in protected activity on a number of occasions.
However, the district court found that the only incident that constituted protected activity
was Blizzard’s 2007 complaint to King that she felt she was being discriminated against
because of her age. The court correctly concluded that there was no evidence “that
Nutter or any other decision-maker was aware of Blizzard’s conversation with King.”
Thus, Blizzard failed to establish the second element of a prima facie case of retaliation
— the defendants’ knowledge of the protected activity — with regard to that
conversation.
The oral complaints Blizzard made to Hauenstein on May 30, 2006 qualify as
protected activity. Blizzard told Hauenstein that she was “treated differently than
younger employees” and that she “received emotionally abusive and intimidating
treatment from Nutter, who treated the younger people in the office much better.”
Blizzard also reported Nutter’s remark that “[m]ost of the people here are the old people
like you” to Hauenstein. MTC contests her version of these conversations and asserts
that Blizzard never “put her complaints in the context of youth.” But the district court
was required to view the evidence in a light most favorable to Blizzard as the nonmoving
party. See Reeves, 530 U.S. at 151. And her comment about being “treated differently”
distinguishes Blizzard’s communications with Hauenstein from her other oral
complaints. Therefore, reviewing the evidence in the light most favorable to Blizzard,
her conversations with Hauenstein constituted protected activity. Blizzard presented
evidence to support the first two elements of her retaliation claim.7
Blizzard has failed, however, to demonstrate the causation element. Her last
complaint to Hauenstein occurred more than a year before her April 2008 termination.
This timing does not “raise the inference that [the] protected activity was the likely
reason for the adverse action.” Lindsay v. Yates, 578 F.3d 407, 418 (6th Cir. 2009)
7
Blizzard contends that Hauenstein’s participation in the decision to terminate her employment
is sufficient to show MTC’s knowledge of the protected activity. Indeed, the record is unclear as to who
made the ultimate decision to terminate Blizzard. Hauenstein states that Nutter made the decision, while
Nutter maintains that Boyer and Hauenstein made the decision based on his recommendation. Construed
in the light most favorable to Blizzard, all three participated in the decision, and this satisfies the element
of awareness on the part of the defendants.
No. 11-3441 Blizzard v. Marion Technical, et al. Page 15
(internal quotation marks omitted) (explaining that temporal proximity between an
assertion of rights and an adverse action is sufficient only when “an adverse employment
action occurs very close in time after an employer learns of a protected activity” (internal
quotation marks omitted)). Blizzard has presented no extrinsic evidence to support her
assertion that the conversation with Hauenstein precipitated MTC’s termination
decision.8 See Greer-Burger, 879 N.E.2d at 180. In addition to the conversation with
Hauenstein, Blizzard lists several other communications that she contends were
protected activity: (1) a complaint to Parker in May 2006; (2) three conversations with
King between May 2006 and September 2006; and (3) a complaint to Boyer in
December 2006.9 Assuming that these communications constituted protected activity,
Blizzard failed to establish a causal connection between the communications, all of
which took place in 2006, and her termination in 2008. See Lindsay, 578 F.3d at 418.
Thus, Blizzard’s claim of retaliation fails.
Further, we reject Blizzard’s attempt to revive her retaliation claim by arguing
that her June 2006 appraisal constitutes an adverse action. According to Blizzard, her
poor evaluation was “retaliatory conduct” because it occurred “within days after [she]
first engag[ed] in protected activity.”10 See Yates, 578 F.3d at 418 (“Causation can be
proven indirectly through circumstantial evidence such as suspicious timing.”).
However, to establish the third element of her retaliation claim, Blizzard must prove that
8
Blizzard asserts that the preferential treatment of Thomas constitutes evidence of retaliatory
conduct. However, her complaints to Hauenstein concerned the more favorable treatment of Thomas as
a younger employee. Since she alleges that the disparate treatment took place before she engaged in
protected activity, she cannot also use that disparate treatment as evidence of retaliation.
9
Blizzard complained to Teresa Parker that she was “expected to work longer hours, [and] the
younger employee in the office was not working the additional hours.” In her various conversations with
King, Blizzard complained about “being berated by Nutter without basis when the youngest employee did
as she pleased without repercussion” and described feeling “singled out by Nutter” when she received a
performance evaluation and Thomas did not. Blizzard alleges that she complained to Boyer in December
2006 that she “had been singled out” and that the “younger employees were not being required to help in
the office.”
10
Here, Blizzard primarily refers to an e-mail, entitled “Work Hours,” that she sent to Bryson,
Parker, and Hauenstein on May 25, 2006, expressing her frustration with the extra time she was required
to work to accommodate Thomas’s training schedule. Blizzard alleges that “Nutter admitted to Blizzard
that he gave her the poor appraisal as reprisal for sending” the “Work Hours” e-mail. The district court
rejected Blizzard’s argument that the e-mail was protected activity, and Blizzard did not dispute the
conclusion on appeal. However, Blizzard’s May 2006 conversation with Hauenstein — which was
protected activity — also took place a short period before her evaluation from Nutter.
No. 11-3441 Blizzard v. Marion Technical, et al. Page 16
the performance evaluation constituted a materially adverse action. An adverse action
is material if it “would ‘dissuade[] a reasonable worker from making or supporting a
charge of discrimination.’” Lahar v. Oakland Cnty., 304 F. App’x 354, 357 (6th Cir.
2008) (alteration in original) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006)). Generally, a negative employment evaluation does not rise to this
level unless it “significantly impact[s] an employee’s wages or professional
advancement.” James v. Metro. Gov’t of Nashville, 243 F. App’x 74, 79 (6th Cir. 2007).
Blizzard has produced no evidence to support a conclusion that her June 2006 appraisal
reduced her compensation or possibility for future advancement.11 Therefore, the 2006
performance evaluation was not a materially adverse employment action for the purposes
of Blizzard’s retaliation claim. Blizzard failed to establish a prima facie case of
retaliation under the ADEA or Ohio law.
III.
We AFFIRM the district court’s grant of summary judgment.
11
Although Blizzard applied for a different position within MTC in 2006, she does not argue that
her negative evaluation influenced the college’s decision not to hire her for that position.