Zaneta Shivers v. Charter Commc'ns, Inc. ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0212n.06
Case No. 22-3574
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) May 04, 2023
ZANETA SHIVERS, DEBORAH S. HUNT, Clerk
)
Plaintiff - Appellant, )
)
v. ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
)
CHARTER COMMUNICATIONS, INC., SOUTHERN DISTRICT OF OHIO
)
Defendant - Appellee. )
OPINION
)
)
Before: GIBBONS, THAPAR, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Following her termination, Zaneta Shivers sued
her former employer, Charter Communications, Inc., alleging unlawful discrimination and
retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination
and Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), and Ohio Revised Code § 4112. She
also alleged state common law claims for wrongful discharge, implied contract, promissory
estoppel, and intentional infliction of emotional distress. Shivers appeals the district court’s grant
of summary judgment on her claims and its dismissal of her state law claims without prejudice.
Because we conclude that Shivers did not establish a prima facie case of discrimination or
retaliation, we affirm.
I.
In 2001, Zaneta Shivers began working for Time Warner Cable (“TWC”), which was later
acquired by Charter Communications, Inc. (“Charter”). With the acquisition, Charter’s policies
No. 22-3574, Shivers v. Charter Commc’ns, Inc.
and procedures replaced TWC’s. Charter’s Employee Handbook provided that “[v]iolations of
provisions of this Handbook, or any policy, rule, or guidance, may result in corrective action, up
to and including separation from the company, regardless of whether this is specifically stated in
the pertinent policy, rule or guidance.” DE 25-1, Tucker Decl., Page ID 133. Its Code of Conduct
requires that employees appropriately address customer concerns or needs, behave professionally
when interacting with customers, and make every effort to ensure the customer’s experience is
exceptional before ending an interaction. Code violations could “result in corrective action, up to
and including termination[.]” Id. at 183.
While Charter regularly employed a progressive discipline policy, certain levels of
discipline could be skipped depending on the severity of the violation. For instance, Charter
employed a zero-tolerance policy—resulting in termination—if employees hung up on customers.
The zero-tolerance policy was enforced consistently although it was not written in the Handbook
or Code of Conduct, and awareness of it varied.
In February 2018, Shivers transferred to the position of Credit Service Associate (“CSA”).
CSAs were divided into four teams with different supervisors. Each team had primary
responsibility for customer accounts in a specific region of the country. Shivers reported to Credit
Services Supervisor Joshua Bliss, whose team was responsible for resolving issues primarily for
West Coast customers. When a customer contacted Charter with a payment-related issue, a CSA
assigned to that region would review and resolve that “ticket.” DE 25-2, Bliss Decl., Page ID 200.
CSAs performed two tasks: (1) balance transfers, involving the transfer of money from one
account to another, and (2) payment research. Most of the tickets handled by Bliss’s team involved
payment research for West Coast customers. Despite working primarily with West Coast
customers, Shivers worked an East Coast 9:00 a.m. to 5:00 p.m. shift. Shivers had access to the
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CSG and Charter billing systems, both used for West Coast customers. Most of the team’s work
was in the CSG system.
When Shivers began as a CSA, Michelle Bates trained her on balance transfers. She was
assigned only balance transfer tickets for around two weeks. Bates then trained Shivers for one
day on conducting payment research. Tickets came in overnight and were assigned by a team
member and approved by Bliss the next morning. Over twenty-five tickets were assigned to
Shivers each day.
Charter’s established method of evaluating the effectiveness of CSAs was based in part on
the percentage of tickets that each CSA successfully resolved. At minimum, a CSA’s goal was to
achieve 90-95% success (partially meets expectations), with higher goals being 95-100% success
(meets expectations) or 100-105% success (exceeds expectations). Shivers did not meet the
minimum goal in April or May 2018, resolving approximately 60-61% of the tickets each month.
In June 2018, new management at Charter implemented an across-the-board change to the
CSA’s performance goals. The number of tickets needing resolution each day jumped from thirty-
five to forty-five, and the number of days a ticket could go unresolved decreased from seven to
three days. Shivers testified that, at that time, her coworker Jason Berner would “raid” her tickets
to reassign easier tickets to himself, but he “slowed down” on taking her easier tickets after she
threatened to go to human resources. DE 25-3, Shivers Dep., Page ID 427-29.
Shortly after this change, Shivers complained to Joanne Gorte, Bliss’s manager, about
feeling “oppressed” due to the increase in required ticket resolutions and decrease in expected
completion time. Id. at 430, 434. She also complained about being given access to different
computer systems but not receiving sufficient training on them and wanting to switch off of Bliss’s
team.
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After that conversation, Bliss held a one-on-one session with Shivers to coach her on
addressing payment research tickets efficiently. He also arranged for Kelly Dawson, a more
experienced CSA, to provide three additional days of training to Shivers on payment research. In
September 2018, Shivers sat with Dawson to observe her work, and Dawson also observed Shivers
at work and offered her guidance on how to perform her tasks. Then, in November 2018, Bliss
documented a verbal coaching session he had with Shivers regarding her attendance. However,
Bliss notes that Shivers still failed to meet the minimum goal in November 2018, instead scoring
only 64.83%.
In early December, Bliss told Shivers that she would be “receiving documented
counseling” because of her “inability to meet the minimum departmental performance goals.” DE
25-2, Bliss Decl., PageID 201; see also id. at 210 (“Zaneta . . . is going to be receiving a
documented counseling for performance.”). Bliss stated that he issued the documented counseling
two weeks later in the form of a performance improvement plan (“PIP”). As part of the PIP,
Shivers was put on the mail team, which reduced her number of tickets and made it easier for her
to reach her performance goals.
Between the time that Bliss notified Shivers that she would receive documented counseling
and the issuance of the PIP, Shivers requested a meeting with Julie Tucker, Charter’s Human
Resources Manager. During that meeting, Shivers told Tucker that Bliss had “a personal issue
against” her because of “[her] age, because of [her] tenure with the company, because [she] was a
black woman.” DE 25-3, Shivers Dep., PageID 435-36, 562. Shivers also complained that Bliss
denied all of her vacation requests.
At Charter, there were certain rules regarding vacation leave, including that employees
could not take off more than one major holiday—meaning the week before, during, and after the
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holiday. On any given day, two people per supervisor were permitted a scheduled day off, and
senior employees had priority. Charter would also honor preexisting scheduled days off for
internal new hires. Bliss both approved and denied Shivers’s requests for vacation leave. Bliss
and Shivers agree that Bliss occasionally approved Shivers’s leave on short notice or modified her
leave when she had to change a previously scheduled time frame.
At one point, Shivers also complained to Bliss about having West Coast tickets but being
on an East Coast shift schedule. Bliss instructed her to put the tickets for West Coast customers
aside until she could call them at 9:00 a.m. West Coast time. Bliss also explained that a CSA
should be able to resolve 80% of payment research tickets without customer calls if all the banking
tools were used. At the time, Bliss lacked the ability to assign Shivers any East Coast tickets
“because she was a CSG team member working CSG tickets.” DE 31, Bliss Dep., Page ID 1157.
On her 2018 annual performance review, Shivers received a score of 2.3 on a five-point
rating scale,1 meaning “Partially Achieved Expected Performance.” DE 25-3, Shivers Dep.,
PageID 393–94; DE 25-2, Bliss Decl., PageID 201. That score was too low to qualify her for an
annual merit increase—which required a minimum score of 3.0—and CSAs were not eligible for
bonuses.
On March 28, 2019, Shivers called a customer to obtain additional information from her to
locate a payment. The customer was “belligerent” from the outset and kept trying to cut Shivers’s
explanation short. DE 25-3, Shivers Dep., Page ID 275-77. Shivers states that she had to end the
call because the customer was not listening to her, kept escalating the situation, and was verbally
1
Shivers states that Bliss was the only one who graded performance based on a performance
matrix; other supervisors allowed CSAs “to just complete the work.” DE 25-3, Shivers Dep., Page
ID 399. Bliss states that they were department-wide metrics. Tucker confirms that Charter used
a computer program to evaluate eligibility for an annual merit increase based on a five-point scale,
and only employees with an overall score of 3.0 were eligible.
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attacking her. She testified that she said goodbye before hanging up and does not remember
whether the customer was still talking at that point. While Shivers could have transferred the
uncooperative customer to a supervisor, she believed that Bliss was not yet in the office. After
hanging up, she notated the customer’s account.
The customer called back the next day, spoke to another associate, and complained about
his previous call with Shivers. That associate emailed Bliss the customer’s information and
recommended looking up the call. After listening to the recording, Bliss emailed Tucker, Gorte,
Human Resources Generalist Laura Craft, and Human Resources Director Nancy Bradfield about
Shivers’s performance on the call and sent them a link to the audio recording. Bliss drafted a
corrective action form and recommended the issuance of a final warning to Shivers for arguing
with and hanging up on the customer. He did not expect that she would be terminated and was
unaware of the zero-tolerance policy for hang-ups, as he had not been involved in this type of
incident before.
Tucker directed Craft to review the recorded phone call. Bliss and Craft listened to the call
together. Upon confirmation from Craft that Shivers hung up on the customer, Tucker “determined
and decided that Shivers’ action”—the single hang-up—“warranted immediate termination,
consistent with Charter’s approach to every other intentional customer hang-up incident that I had
been involved in or made aware of.” DE 25-1, Tucker Decl., Page ID 135. Bliss was informed
that Shivers would be terminated due to the severity of her violation and notified about the zero-
tolerance policy.
Even after Tucker communicated her termination recommendation, Bliss still thought that
a final warning should apply instead. However, he testified that, once he heard of the zero-
tolerance policy, his “hands were tied.” DE 31, Bliss Dep., Page ID 1151. The request for
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termination received approvals from the management team—supervisor Bliss, senior manager
Gorte, and director Kay Mushill—as well as Tucker and Human Resources Director Nancy
Bradfield.
Two weeks later, Bliss asked Shivers to join him in Gorte’s office, along with Craft. Bliss
told Shivers she was being terminated for the March 28 hang-up in accordance with Charter’s zero-
tolerance policy for such behavior. Shivers responded that she was unaware of the policy and
thought that progressive discipline applied. She recounts that Craft gave her Tucker’s number to
call if she did not agree with the decision. Shivers noted that Bliss had paperwork in his hand, but
Shivers left the office directly after being terminated and did not receive it. Shivers was forty-
seven years old at the time of her termination.
After her termination, Shivers first tried calling Tucker but received no response. She then
filed a charge of discrimination with the Ohio Civil Rights Commission (“OCRC”). Shivers
testified that she believed that Bliss alone singled her out to be terminated for a single hang-up
under a nonexistent zero tolerance policy.
Shivers received her right to sue letter in August 2020. Three months later, she sued
Charter, alleging that she was wrongfully terminated under federal and state law because of her
race and age. Charter denied all allegations and moved for summary judgment on each.
The district court granted Charter’s summary judgment motion on Shivers’s discrimination
and retaliation claims and dismissed Shivers’s state law claims without prejudice. The court
determined that Shivers failed to establish prima facie discrimination or retaliation. First, it
concluded that the alleged issues with Shivers’s training, computer access, workload, leave
requests, and phone status did not constitute adverse employment actions. Second, although the
court considered as adverse employment actions the denial of a raise and bonus, the failure to apply
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progressive discipline, and Shivers’s termination, it dismissed these claims because Shivers failed
to present evidence permitting a finding that she was treated differently than similarly situated
non-protected employees. The district court also dismissed Shivers’s hostile work environment
claim for failure to defend the claim on summary judgment.
Turning to Shiver’s retaliation claim, the district court determined that the placement of
Shivers on a PIP did not constitute a materially adverse employment action. It then concluded that
Shivers did not establish her causation burden regarding her termination and granted Charter’s
motion on this claim. Last, the district court dismissed Shivers’s state law claims for wrongful
discharge, breach of implied contract, and promissory estoppel without prejudice to re-filing in
state court.
Shivers filed the instant appeal.
II
We review the district court’s grant of summary judgment de novo. Weser v. Goodson,
965 F.3d 507, 513 (6th Cir. 2020). A movant is entitled to summary judgment if she shows that
there is no genuine dispute of any material fact and that she is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). If the nonmovant “fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact,” the fact may be treated as undisputed. Fed.
R. Civ. P. 56(e)(2). A genuine dispute of material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment. Factual disputes
that are irrelevant or unnecessary will not be counted.” Id. In drawing any inferences, we view
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the underlying facts in the light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citations omitted).
III.
Shivers argues that the district court improperly granted Charter summary judgment on her
discrimination and retaliation claims. Under the McDonnell Douglas framework, she contends
that the district court erred in concluding that she did not satisfy either the third or fourth factor of
her prima facie burden for each of her claims. We review these arguments in turn.
1. Race and Age Discrimination Claims
Shivers asserts her race and age discrimination claims under federal law and Ohio state
law, which employ the same analytical framework. Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th
Cir. 2005) (ADEA analysis applicable to Ohio age discrimination claims); Threat v. City of
Cleveland, 6 F.4th 672, 680 (6th Cir. 2021) (Title VII analysis applicable to Ohio race
discrimination claims). As Shivers supports her claims with circumstantial evidence, we follow
the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). See Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992).
To survive summary judgment, the McDonnell Douglas framework requires that Shivers
first establish a prima facie case of discrimination by showing that she: (1) is a member of a
protected class; (2) is qualified for the job; (3) suffered an adverse employment decision; and
(4) was treated differently than similarly situated non-protected employees. Chattman v. Toho
Tenax Am., Inc., 686 F.3d 339, 347 (6th Cir. 2012); Hrdlicka v. Gen. Motors, LLC, 63 F.4th 555,
575 (6th Cir. 2023). If a prima facie case is established, the burden shifts to Charter to “articulate
some legitimate, nondiscriminatory reason” for the adverse employment action. Blizzard v.
Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (quoting McDonnell, 411 U.S. at 802).
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Once a nondiscriminatory reason is asserted, the burden returns to Shivers to show that Charter’s
proffered reason was pretextual. Id.The parties only dispute the third and fourth factors for Shivers’s claims. We first consider
whether her alleged negative administrative actions amount to adverse employment actions.
A. Administrative Actions
An adverse employment action requires a “materially adverse change in the terms or
conditions” of employment. Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 885 (6th Cir. 1996).
This change “constitutes a significant change in employment status, such as hiring, firing, failing
to promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
Adverse employment action “requires an official act of the enterprise, a company act. The decision
in most cases is documented in official company records, and may be subject to review by higher
level supervisors.” Id. at 762; see also Laster v. City of Kalamazoo, 746 F.3d 714, 727 (6th Cir.
2014). By contrast, de minimis employment actions, which could be described as “mere
inconvenience[s] or an alteration of job responsibilities,” are not actionable. Kocsis, 97 F.3d at
886 (citation omitted).
Shivers argues that she suffered adverse employment actions in the form of (1) insufficient
training, (2) denial of and delayed computer access, (3) increased workload assignments, (4) denial
of vacation leave, and (5) being singled out to keep her work phone available at all times. Relying
on an unpublished district court case, Brantley v. Cinergy Corp., No. 101CV378, 2007 WL
2462652 (S.D. Ohio Aug. 27, 2007), Shivers argues that the differential treatment she received—
considered individually or collectively—delayed or impacted her ability to perform her job
functions and made the terms and conditions of her employment more onerous than that of her
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non-protected peers, constituting adverse actions. Charter disputes the underlying facts regarding
these allegations, and nevertheless responds that, even if the actions did occur, they are de minimis.
Examining each, we conclude that none of the alleged actions constitute adverse employment
actions.
To start, Shivers’s allegations of insufficient training do not rise to the level of an adverse
employment action. It is undisputed that Shivers received training on balance transfers and
payment research both at or near the start of her work as a CSA. She started with balance transfer
training and does not argue that it was insufficient. And while Shivers asserts that her initial
training on payment research did not adequately prepare her, it is undisputed that she received
further training on payment research when she requested it. Thus, there is no indication that the
delay in payment research training negatively changed the conditions of her employment or “was
more disruptive than a mere inconvenience,” because she ultimately received the training. Threat,
6 F.4th at 679 (internal quotation marks and citation omitted); c.f. Vitt v. City of Cincinnati, 97 F.
App’x 634, 639 (6th Cir. 2004) (no adverse action from denial of training).
Likewise, Shivers’s delayed access to certain computer credentials does not rise to the level
of an adverse employment action. Despite an initial one-month delay in gaining access to
computer systems, Shivers received access to these systems and could use the credentials of her
coworkers to access systems during the delay. See, e.g., Stewart v. Esper, 815 F. App’x 8, 18 (6th
Cir. 2020) (holding initial denial of access to a specific computer system was de minimis when
plaintiff “received access within a month”). Shivers also testified that she had access to the CSG
and Charter billing systems and acknowledges that her responsibilities primarily involved West
Coast customers with tickets in the CSG system. As to Shivers’ assertion that she could never
directly access other computer systems, the record reveals that she was asking people under
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different supervision—not directly on the CSG team—for the access that they had. Moreover, her
testimony reveals that she could still access these computer systems, if at all needed, through
others. Even if the lack of access to certain computer systems did negatively affect Shivers’s
performance to the degree that it constituted an adverse employment action, Shivers would fail on
the fourth prong of establishing a prima facie case. She only offers as comparators employees who
had access to other computer systems because they were assigned to special projects that gave
them this access. On both the third and fourth factors, this claim fails.
Neither does Shivers’s workload constitute an adverse employment action. Shivers
acknowledges that part of her mounting workload resulted from an across-the-board increase in
the required number of resolved tickets and a decrease in the time allowed for resolving those
tickets. She also testified that her reception of the harder payment research tickets was partially
caused by her colleague’s “raid[ing]” of her tickets to reassign the easier batch to himself, which
slowed down after she threatened to go to human resources. DE 25-3, Shivers Dep., Page ID 427-
29; c.f. Garcia v. Beaumont Health Royal Oak Hosp., No. 22-1186, 2022 WL 5434558, at *6 (6th
Cir. Oct. 7, 2022) (“Title VII affords [the plaintiff] no right to dictate her employer’s dealings with
a coworker who is no longer harassing her.”). Further, although Shivers argues that her East Coast
hours made her West Coast workload more difficult to resolve, she does not dispute her assignment
to a West Coast ticket team. Moreover, most payment research tickets could be completed without
contacting customers, and payment research was Shivers’s job responsibility and the majority of
her team’s work. Finally, when Shivers requested to be put on a special project, she was put on
the mail team—which she acknowledges reduced her workload.
Shivers argues that she was disproportionately denied her preferred vacation requests every
time she requested them, including for major holidays. But the record reveals that this was also
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not an adverse employment action. Bliss approved many days off for Shivers, including around
major holidays. It also appears that Bliss’s stated reasons for denying some of Shivers’s requests
aligned with the stated policies regarding vacation leave. See Smith v. Leggett Wire Co., 220 F.3d
752, 763 (6th Cir. 2000) (“[I]t is inappropriate for the judiciary to substitute its judgment for that
of management.”). Here, some denials of vacation requests according to Charter’s policy, without
more, is not an adverse employment decision.2 See Johnson v. United Parcel Service, Inc., 117 F.
App’x 444, 450 (6th Cir. 2004) (scheduling issues not adverse actions); White v. Andy Frain Servs.,
629 F. App’x 131, 134 (2d Cir. 2015) (denial of vacation requests not adverse employment action).
As to Shiver’s assertion that she was treated differently by virtue of having to keep her
phone on “available status,” Bliss explains that all employees used the same phone system that
transferred the next incoming call to any “idle” associates. DE 31, Bliss Dep., Page ID 1187.
Whether or not the requirement was a departmental policy is unnecessary to resolve, though,
because Shivers does not demonstrate how receiving calls constitutes a “change in employment
status . . . reassignment with significantly different responsibilities, or . . . a significant change in
benefits,” Burlington, 524 U.S. at 761, and it does not give rise to an inference that Charter
increased Shivers’s phone call frequency through any official action at any specific time during
her employment. Cf. id. at 762 (adverse employment action usually requiring “company act”). It
therefore does not constitute an adverse employment action.
Standing alone, none of these administrative actions amount to an adverse employment
action. But we must also consider “[t]he[ir] cumulative effect.” Rogers v. Henry Ford Health
Sys., 897 F.3d 763, 776 (6th Cir. 2018). The alleged actions still fall short. Shivers asserts
2
Charter does not challenge Shivers’s argument that denial of bonuses, performance rating, salary
increases, and discipline (termination) were adverse employment decisions.
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difficulties resulting from across-the-board decisions increasing workload, company policies
applicable to her non-protected counterparts, her own job responsibilities, and coworkers’
behavior. She does not establish that she was assigned tasks that other non-protected employees
did not also have to perform. She was placed on a special project when she requested it and was
not denied specialized opportunities for service that were “informal prerequisites for internal
promotions,” like in Brantley, 2007 WL 2462652, at *17. She does not create a genuine dispute
of material fact that she was reassigned to a workload outside the confines of her job
responsibilities, see Kocsis, 97 F.3d at 885 (affirming that “reassignments without salary or work
hour changes do not ordinarily constitute adverse employment decisions in employment
discrimination claims”), or that she had a disproportionately heavy workload compared to her
peers. See Feingold v. New York, 366 F.3d 138, 152-53 (2d Cir. 2004) (describing “assignment of
a disproportionately heavy workload” as an adverse employment action capable of supporting Title
VII liability). Because a reasonable jury could not find that the terms and conditions of her
employment were adversely affected, we affirm.
Shivers next alleges that she was denied bonuses and salary increases.3 Charter does not
challenge that these alleged denials would constitute adverse employment actions but rather
disputes two other points. First, it argues that Shivers failed to establish that she suffered the
adverse action of a bonus denial. Here, Charter is correct: it is undisputed that CSAs (like Shivers)
were not eligible for bonuses, so she could not have suffered by not receiving one. Second, Charter
argues that Shivers failed to show the fourth prong of the prima facie analysis—that Charter treated
3
Charter contends that Shivers waived her arguments regarding an improper denial of a raise and
bonus. But Shivers argued in her appellate brief that the district court erred in considering the
“disparate rating scale for . . . salary increases” and its “detrimental effect on Ms. Shivers’
employment.” CA6 R. 13, Appellant Br., at 35. We therefore consider the argument.
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similarly situated white or younger employees differently when it came to the performance scale.
Shivers counters that the district court erred by holding her to an improperly high standard of proof
when it found her employee comparators were inadequate.
A plaintiff satisfies the fourth prong of the prima facie analysis where she demonstrates
that a “comparable non-protected person was treated better.” Ercegovich v. Goodyear Tire &
Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998) (quoting Mitchell, 964 F.2d at 582-83). The
comparison need not be an “exact correlation,” but Shivers must establish that, in all “relevant
aspects,” her employment conditions were “nearly identical” to those of white or younger
coworkers who received more favorable treatment. Id. at 352 (internal citations omitted). Three
factors are “generally relevant” to each case: “whether the employees: (1) engaged in the same
conduct, (2) dealt with the same supervisor, and (3) were subject to the same standards.” Johnson
v. Ohio Dep’t of Pub. Safety, 942 F.3d 329, 331 (6th Cir. 2019) (citing, inter alia, Mitchell, 964
F.2d at 583). We independently determine the value of Shivers’s proffered comparisons.
Ercegovich, 154 F.3d at 352. The district court undertook this same analysis, and we find no error
in its recitation of the legal standard.
Shivers’s 2.3 performance evaluation rating precluded her from a merit increase—like a
below-3 rating did for all other employees. Shivers failed to identify a similarly situated non-
protected employee at Charter with a sub-3 performance score who still received a merit increase.
See Smith v. City of Toledo, 13 F.4th 508, 515 (6th Cir. 2021); Simpson v. Vanderbilt Univ.,
689 F. App’x 450, 451 (6th Cir. 2017) (no prima facie case where plaintiff “failed to identify a
suitable [] comparator”). We agree with the district court that she did not establish her prima facie
case regarding these claims and affirm.
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B. Termination
Whether Shivers can establish her prima facie case of discrimination based on her
termination turns again on the fourth McDonnell Douglas factor. Because she provides no suitable
comparators establishing differential treatment, this claim fails as well.
Shivers offers several comparators to support her claim, arguing that she suffered more
severe treatment for actions taken by other non-protected employees. But none of the comparators
she identifies are sufficient. First, all but one of the comparators drawn from Charter’s discovery,
shared a protected category with Shivers: three of the seven were over 40 years old, and four of
the seven were African-American. Even more importantly, none of the offered comparators were
supervised by Bliss or retained their jobs after the discovery of a hang-up.
Shivers uses the “most egregious example” of differential treatment to rebut this claim—
that the one comparator who was both Caucasian and younger, Employee 6070115, had forty-three
hang-ups before being terminated. CA6 R. 13, Appellant Br., at 10-11. However, the termination
paperwork reveals that Employee 6070115’s multiple hang-ups were discovered in a single routine
audit covering an approximately thirty-day period. Documentation shows that this auditing
process was used to review other employees and resulted in terminations. Instead of an audit, Bliss
discovered the sole hang-up for Shivers because another associate notified him the following day
after speaking to the dissatisfied customer. The termination of Employee 6070115 only
corroborates that discovery of the hang-ups, not necessarily when the hang-up occurred, is the
event that immediately prompts termination.
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Only one of the other affidavits that Shivers provides for the other “similarly situated”
employees speaks to the issue of hang-ups for which Shivers was terminated.4 Octavia Griggs
declared that she remembered hanging up on a rude customer in 2018 and was not terminated at
the time. However, there is no dispute of material fact established by Griggs’s affidavit because
Griggs is an African American over forty years old, thus sharing the same protected characteristics
as Shivers, and Griggs worked on a different team under a different supervisor. Thus, this incident
cannot establish that Shivers received differential treatment from that of a non-protected
comparator.
Finally, we turn to Shivers’s contention that the district court ignored whether zero
tolerance “was even a real policy.” CA6 R. 13, Appellant Br., at 11. But simply because some
supervisors and employees were unaware of the policy does not mean that it does not exist. Human
resources,5 charged jointly with leadership to make final decisions regarding employee discipline,
has consistently maintained that Charter applies a zero-tolerance policy for customer hang-ups.
That policy existed and was applied before Shivers’s termination. Although the policy is not
formally included in written policy, it is consistent with Charter’s policies and procedures, which
state that any violations of policies, rules, or guidance, such as how to appropriately address
customer concerns or needs, can result in termination. The real issue here is not whether the policy
4
To the degree that Shivers uses the testimony of four African American employees terminated
during the same period who were “terminated for improper reasons related to their age, longevity
and the higher pay they were all earning,” CA6 R. 13, Appellant Br., at 12, pattern-or-practice
evidence is generally “inappropriate as a vehicle for proving discrimination in an individual case”
because it does not evaluate individual hiring decisions. Bacon v. Honda of Am. Mfg., Inc.,
370 F.3d 565, 575 (6th Cir. 2004) (citation omitted).
5
Although one Charter Human Resources Business Partner questioned the application of a zero-
tolerance policy for an employee with only one hang up, there is insufficient information given
about the incident. Moreover, human resources and management in that case still decided to
terminate that employee based on a single hang-up.
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No. 22-3574, Shivers v. Charter Commc’ns, Inc.
existed, but rather if Shivers was treated differently in its application. And because Shivers cannot
establish a genuine dispute of material fact that other similarly situated colleagues were treated
differently under this policy, she fails to establish her claim. We affirm.
2. Retaliation
Shivers alleges that her placement on a PIP and her termination were retaliation for her
complaints of discriminatory treatment.6 As with her discrimination claims, we apply the McDonnell
Douglas burden-shifting framework because Shivers presents indirect evidence. Laster, 746 F.3d
at 730. To establish her prima facie case, Shivers must establish that “(1) [she] engaged in activity
protected by Title VII; (2) [her] exercise of such protected activity was known by the defendant;
(3) thereafter, the defendant took an action that was ‘materially adverse’ to the plaintiff; and (4) a
causal connection existed between the protected activity and the materially adverse action.” Id.(quoting Jones v. Johanns, 264 F. App’x 463, 466 (6th Cir. 2007)). Charter disputes the third and
fourth prongs of the prima facie claim regarding Shivers’s PIP and only the fourth prong regarding her
termination.
“Plaintiff’s burden of establishing a materially adverse employment action is ‘less onerous
in the retaliation context than in the anti-discrimination context.’” Laster, 746 F.3d at 731 (internal
quotations omitted). A materially adverse action “means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v.
White, 548 U.S. 53, 68 (2006) (internal quotation and citations omitted).
Placing an employee on a performance improvement plan may meet the “relatively low
bar” of constituting a materially adverse action in the context of a retaliation claim. Michael v.
6
Charter argues that Shivers waived her right to challenge the district court’s order related to her
PIP retaliation theory, but we find sufficient support in Shivers’s initial brief to consider her
argument.
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No. 22-3574, Shivers v. Charter Commc’ns, Inc.
Caterpillar Fin. Svcs. Corp., 496 F.3d 584, 596 (6th Cir. 2007). But here, the specifics of Shivers’s
PIP cast doubt as to its material adversity. Through her PIP, Shivers was placed on the mail team,
which reduced the number of tickets she had to resolve. She agreed that this placement was
beneficial, which, we conclude, likely would not have dissuaded a reasonable worker from making
a charge of discrimination. As to causation, Bliss told Shivers that she would be “receiving
documented counseling” before she complained to human resources. DE 25-2, Bliss Decl., PageID
201. Bliss could not have retaliated against Shivers before she engaged in the protected activity,
so she cannot satisfy a prima facie retaliation case on this basis either. See Fletcher v. U.S. Renal
Care, 709 F. App’x 347, 354 (6th Cir. 2017) (“[T]he ‘critical’ question for purposes of causation
is whether ‘the scrutiny increased’ after the employee engaged in the protected activity.” (quoting
Hamilton v. GE, 556 F.3d 428, 436 (6th Cir. 2009)). Thus, on either the third or fourth factor,
Shivers fails to establish a prima facie case of retaliation based on her placement on a PIP.
As to Shivers’s termination, Charter only challenges causation. “To establish a causal
connection, a plaintiff must proffer evidence sufficient to raise the inference that her protected
activity was the likely reason for the adverse action.” Dixon v. Gonzales, 481 F.3d 324, 333 (6th
Cir. 2007) (internal quotation and citation omitted). In other words, Shivers must prove “that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful action or
actions of the employer.” Laster, 746 F.3d at 731 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 360 (2013)). “Although no one factor is dispositive in establishing a causal
connection, evidence that defendant treated the plaintiff differently from similarly situated
employees or that the adverse action was taken shortly after the plaintiff’s exercise of protected
rights is relevant to causation.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
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No. 22-3574, Shivers v. Charter Commc’ns, Inc.
Shivers contends that she demonstrates causation in two ways. First, like in the
discrimination context, she argues that she was treated differently than her similarly situated non-
protected peers. Yet Shivers fails to identify any similarly situated non-protected employees who
hung up on a customer and were not terminated for the infraction, so there is no genuine dispute
of material fact that she was treated differently from her peers. Shivers next argues that she
establishes causation through temporal proximity—emphasizing that there were only three and a
half months between her complaint of discrimination on December 26, 2018, and her termination
on April 16, 2019. However, this time period alone is insufficient to establish causation. See, e.g.,
Boshaw v. Midland Brewing Co., 32 F.4th 598, 605 (6th Cir. 2022) (“[T]hree months passed
between [the plaintiff’s] complaint to [his employer] and his termination, a firm indicator of a lack
of a causal link.”); Barlia v. MWI Veterinary Supply, Inc., 721 Fed. App’x 439 (6th Cir. 2018)
(three months between protected activity and adverse actions insufficient). Apart from these
insufficient arguments, Shivers provides no facts from which the court could reasonably infer that
her protected activity was the reason she was terminated. Her retaliation claim therefore fails.
IV.
For the foregoing reasons, we affirm.
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