Monica Bush v. ProMedica Toledo Hosp.

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0049n.06
No. 21-3444
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jan 26, 2022
MONICA BUSH, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant,
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
) COURT FOR THE
PROMEDICA TOLEDO HOSPITAL, INC.,
) NORTHERN DISTRICT OF
Defendant-Appellee. ) OHIO
)
)
Before: BATCHELDER, WHITE, and BUSH, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Monica Bush worked at ProMedica Toledo
Hospital in Ohio as a patient-registration specialist. Citing several violations of company policy,
ProMedica terminated her employment. Bush sued ProMedica in federal court for racial
discrimination and retaliation under Title VII and Ohio law. The district court granted summary
judgment to ProMedica. We AFFIRM.
I.
In 2013, Bush began working at ProMedica as a Registration Specialist. Her job was to
register patients and place them in the correct rooms. ProMedica provided two on-site parking
lots for employees and assigned Bush to one of those lots to park her car. ProMedica’s official
policy requires its employees to park in their assigned parking lots and prohibits them from parking
anywhere else, including on the surface parking lot next to the Emergency Room (the “ER parking
No. 21-3444, Bush v. ProMedica Toledo Hosp.
lot”). ProMedica’s security officers monitor the ER parking lot to keep the parking spaces
available for patients who require emergency care.
In 2017, Bush was responsible for registering patients in ProMedica’s Emergency Room
department (the “ER”). Early in the morning on June 30, 2017, Bush parked in the ER parking
lot, clocked in to start her shift, and planned—after clocking in—to leave her workstation to
remove her car from the ER parking lot. As Bush was leaving the ER parking lot to clock in,
Tiffany Allore, a ProMedica security officer, asked Bush to move her car. Bush responded that
she would move her car after she clocked in. As Bush was returning to her car after clocking in,
Allore warned Bush not to park in the ER parking lot again. Bush, apparently offended, told Allore
“to stop watching me like I’m her woman and that I have a man.”
Bush removed her car from the ER parking lot, but Allore and another security officer
(named John) confronted Bush about her previous comment to Allore. According to Bush, John
demanded to see her badge, but she refused because she did not know John and he was not wearing
a security-officer uniform. Eventually, Bush put John and Allore on the phone with the patient
registration office and everyone returned to work.
Bush and Allore filed complaints against each other. Bush sent an e-mail to Don Sullivan,
the director of security for ProMedica, complaining about Allore’s conduct and John’s
incompetence as head of security. Bush also suggested they had mistreated her because of her
race, noting “maybe if I was a different color of skin he would [have] handled the situation
differently.” Bush also said that she copied her supervisor, Christopher Steinmiller, on the e-mail
to Sullivan.1 Allore sent an e-mail to human resources (“HR”) complaining about Bush’s comment
1
The e-mail itself does not show that Bush included Steinmiller on her complaint to Sullivan, but Bush
insisted that she sent the complaint to Steinmiller too.
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to her. Allore felt that Bush’s comment was derogatory and offensive, and approximated a hate
crime.
Sometime later, Bush met with Steinmiller to discuss the ER parking lot incident.
Steinmiller explained to Bush that she cannot park in the ER parking lot, and Bush admitted that
she understood that she could not park there. During the meeting, Bush also complained to
Steinmiller that other hospital employees parked in the ER parking lot, but Steinmiller said that he
is only responsible for his employees and where they park. Bush never gave Steinmiller any names
of employees in registration who parked in the ER parking lot.
On July 16th, as Bush was registering a patient, the attending physician entered the room
and, without waiting for Bush to finish registration, started talking to the patient. With the patient
and physician still in the room, Bush told the physician that it only takes seconds to register the
patient and that once the process is completed, the physician has the rest of the time to care for the
patient. The physician complained to HR about Bush’s comment.
After another two weeks passed, Steinmiller issued a written corrective action to reprimand
Bush for her conduct on June 30th and July 16th. The corrective action cited Bush’s parking in
the ER parking lot, her comment to Allore, and her comment to the physician on July 16th. The
corrective action warned that further behavioral issues could result in termination. On July 27th,
Steinmiller met with Bush to discuss the corrective action and to reiterate that Bush must park in
her assigned parking lot even if it meant “just tak[ing] a tardy.” According to Bush, it was at this
meeting that she complained to Steinmiller about what she believed was racially discriminatory
treatment of her by the security officers. Bush did not appeal the corrective action.
Several weeks passed without incident. Then, on the morning of September 27th, Bush
parked her car in the ER parking lot again. Bush clocked in, left her workstation to remove her
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car from the ER parking lot, and parked her car on a side street off ProMedica’s campus, but near
the ER. Bush later alleged that she felt uncomfortable parking in the dark, empty parking lot that
ProMedica assigned her. Bush also alleged that she parked her car on the side street because of
overcrowding in her assigned parking lot.
About a week later, on October 3rd, Steinmiller met with Bush about her parking in the ER
parking lot and on the nearby side street. Steinmiller explained to Bush that employees who park
off ProMedica’s campus violate hospital policy. He also reminded her that ProMedica requires
employees to park in their assigned lot, not the ER parking lot.
Bush denied that she had parked in the ER parking lot but admitted to parking on the side
street. Bush expressed a concern to Steinmiller that people in security were conspiring to get her
terminated for what she said to Allore on June 30th, and she opined that the whole situation with
the security officers was a civil-rights issue. Steinmiller encouraged her to contact HR if she felt
that her civil rights had been violated in any way, but she never did. Steinmiller also told Bush
that he would review the security video to determine if she had parked in the ER parking lot.
The security video footage confirmed that Bush had parked in the ER parking lot, clocked
in, and left work to move her car. Steinmiller terminated Bush’s employment for violations of
company policy that included falsifying records, failure to observe parking policies, leaving work
without permission, and wasting company time. Steinmiller advised Bush of her termination on
October 8th.
Bush appealed through ProMedica’s internal grievance process. Everyone who had a say
in the grievance process voted to uphold Bush’s termination, including a panel of five randomly
selected ProMedica employees. Bush filed a complaint with the Ohio Civil Rights Commission,
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but the Commission dismissed her complaint after finding it improbable that ProMedica did
anything unlawful.
Bush sued ProMedica in federal court, bringing claims under federal and state law for racial
discrimination and retaliation. The district court granted summary judgment to ProMedica, and
Bush timely appealed.
II.
A. Standard of Review
“We review the district court’s grant of summary judgment de novo.” Romans v. Mich.
Dep’t of Human Servs., 668 F.3d 826, 835 (6th Cir. 2012) (citation omitted). A defendant moving
for summary judgment must demonstrate the “absence of a genuine issue of material fact” in all
essential elements of the plaintiff’s claims and that the defendant is entitled to judgment as a matter
of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). We draw all reasonable inferences in
favor of the plaintiff, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). And unless
the plaintiff “show[s] specific facts that reveal a genuine issue for trial,” Laster v. City of
Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014), summary judgment is appropriate, Catrett,
477 U.S. at 322–23.
B. Racial Discrimination
Bush claims that ProMedica discriminated against her in violation of Title VII. Because
Bush’s discrimination claim relies on indirect evidence of discrimination, we apply the McDonnell
Douglas burden-shifting framework. See Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 390 (6th
Cir. 2009); Miles v. South Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 887 (6th Cir. 2020). The
initial burden is on Bush to establish her prima facie case for discrimination. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If Bush establishes her prima facie case, the
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burden shifts to ProMedica to offer a legitimate, nondiscriminatory reason for Bush’s termination.
Id. If ProMedica offers a legitimate reason, the burden shifts back to Bush to show that the
proffered reason was pretext for discrimination. Id. at 804.
To establish a prima facie case of discrimination, Bush must show that she was “(1) a
member of a protected class, (2) subject to an adverse employment action, (3) qualified for the
position, and (4) replaced by a person outside the protected class or treated differently than
similarly situated nonminority employees.” Tennial v. United Parcel Serv., Inc., 840 F.3d 292,
303 (6th Cir. 2016).
ProMedica contests only the fourth element—that it treated Bush differently from similarly
situated nonminority employees.2 To qualify as similarly situated, the nonminority employees
“must be similar in all of the relevant aspects.” Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 352 (6th Cir. 1998) (quotation marks omitted). The relevant aspects usually include
whether the comparator employees had the same supervisor, worked under the same standards,
and engaged in the same conduct as the plaintiff’s, “without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Id.(quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). “Differences in job title,
responsibilities, experience, and work record can be used to determine whether two employees are
similarly situated[.]” Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004). The district court
concluded that Bush had not presented sufficient evidence to establish her prima facie case for
racial discrimination.
2
The district court concluded that Bush did not provide sufficient evidence to show that ProMedica replaced
Bush with a white employee. On appeal, Bush mentions in a footnote of her brief that ProMedica replaced
her with a white employee. But Bush never developed this argument further, and thus it is waived. See
United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007) (citations omitted).
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On appeal, Bush protests that her testimony does establish the fourth element of her prima
facie case, describing the various ways that ProMedica treated her differently from white
employees. She relies on her deposition testimony, in which she said that several white employees
parked in the ER parking lot and on side streets off campus. She also testified that a white
employee, Sarah Maze, left her workstation to go to the parking lot while on the clock.
We are not persuaded. Bush’s testimony fails to establish a prima facie case because she
fails to identify the comparable employees who parked in the ER lot or to provide sufficient
information to permit a comparison analysis. Bush refers vaguely to clerks, nurses, and doctors
who she says parked in the ER parking lot, but without more, we cannot determine who these
employees are or whether they are comparable. See Fuelling v. New Vision Med. Lab’ys LLC, 284
F. App’x 247, 255 (6th Cir. 2008) (finding that the plaintiff did not establish a prima facie case
because the plaintiff failed to identify comparable employees with sufficient specificity to
determine whether they were similarly situated). As the district court found, “[w]ithout even
knowing who the comparable individuals are, it is virtually impossible to determine that they are
similarly situated to plaintiff.” We agree.
Bush does identify one employee, Sarah Maze, who, as Bush tells it, left her workstation
on several occasions to go to the parking lot while on the clock. Although Bush did not set forth
facts identifying Maze’s official position, official supervisor, or experience, an affidavit from
Shannon Ducat, Metro Director of Patient Registration—attached to ProMedica's motion for
summary judgment—stated that “Sarah Maze, a Patient Registration Specialist at [ProMedica],
has been disciplined for attendance issues.” While this affidavit shows that there may be some
similarities between Bush and Maze—they had the same job title and faced discipline—it is
impossible to tell whether the discipline was of a similar severity. What is more, Bush failed to
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show that Maze engaged in the same conduct that Bush did. ProMedica terminated Bush for
violating parking policy, not just leaving her workstation while on the clock. Indeed, Bush herself
could not say whether Maze parked in the ER parking lot before clocking in as Bush did. On this
scant and incomplete evidence, a reasonable jury could not find that Maze or these unnamed
employees were similarly situated to Bush. See Colvin v. Veterans Admin. Med. Ctr., 390 F. App’x
454, 458–59 (6th Cir. 2010) (finding that the plaintiff did not establish a prima facie case because
the comparator employees did not engage in similar conduct). Therefore, Bush failed to establish
her prima facie case, and we need not address her claims that ProMedica’s reasons for discharging
her were pretextual.3
C. Retaliation Claim
Bush also claims that ProMedica retaliated against her in violation of Title VII. “In
addition to prohibiting discrimination, Title VII prohibits retaliation against an employee for
engaging in conduct protected by Title VII.” Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d
599, 613 (6th Cir. 2019). As with Bush’s discrimination claim, we apply the McDonnell Douglas
burden-shifting framework to analyze Bush’s retaliation claim because it relies on indirect
evidence. Id.
1. Prima Facie Case for Retaliation
First, Bush must establish her prima facie case for retaliation. To do so, she must show
that “(1) she engaged in activity protected under Title VII; (2) [ProMedica] knew that she exercised
her protected rights; (3) an adverse employment action was subsequently taken against her; and
3
Because Ohio courts apply the McDonnell Douglas burden-shifting framework to discrimination claims,
the district court did not err in granting summary judgment to ProMedica on Bush’s state-law discrimination
claim. See Cline v. Cath. Diocese of Toledo, 206 F.3d 651, 668 (6th Cir. 2000).
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(4) [Bush’s] protected activity was the but-for cause of the adverse employment action.” Kenney
v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir. 2020).
The parties contest only the fourth element—that Bush’s complaints caused her
termination. Bush’s argument relies on temporal proximity alone to establish but-for causation
between her complaints and her termination. But we require more evidence than temporal
proximity to support an inference of but-for causation. Id. at 448–49; Nguyen v. City of Cleveland,
229 F.3d 559, 566 (6th Cir. 2000) (“[T]emporal proximity alone will not support an inference of
retaliatory discrimination when there is no other compelling evidence.” (quotation omitted)).
While we allow for exceptions to this rule, they “are rare, even in instances involving relatively
short time periods.” Kenney, 965 F.3d at 449 (quotation omitted).
Here, other than temporal proximity, there is no evidence that Bush’s complaints were but-
for causes of her termination. Bush submitted three complaints, one in the form of an e-mail to
Sullivan (with Steinmiller allegedly copied) on June 30th, and two as oral complaints to Steinmiller
on July 27th and October 3rd during meetings that ProMedica supervisors initiated to reprimand
Bush for behavioral issues.
The record does not support an inference that Bush’s complaints caused her termination.
Bush has pointed to no evidence other than temporal proximity that Steinmiller fired her because
of these complaints. In fact, Steinmiller’s conduct shows that he wanted Bush to get the proper
assistance in resolving her concerns about her civil rights. As the district court noted, and as Bush
does not dispute, Steinmiller encouraged Bush to contact HR to voice her concerns, which cuts
against the inference that Steinmiller terminated her employment because of her complaints. See
Kinney, 965 F.3d at 449 (dismissing a retaliation claim when “[a]ll things considered, there [wa]s
nothing unusually suggestive about the timing of [] termination”) (quoting MacDonald v. United
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Parcel Serv., 430 F. App’x 453, 465–66 (6th Cir. 2011)). Bush has failed to establish her prima
facie case for retaliation, and we therefore need not address her claims of pretext.4
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
4
Because Ohio courts apply the McDonnell Douglas burden-shifting framework for retaliation claims, the
district court did not err in granting summary judgment to ProMedica on Bush’s state-law retaliation claim.
See Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008).
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