Doreen Fuelling v. New Vision Med. Laboratories

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0384n.06
Filed: June 27, 2008
No. 07-4136
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DOREEN FUELLING, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
NEW VISION MEDICAL )
LABORATORIES LLC and ST. RITA’S )
MEDICAL CENTER, ) OPINION
)
Defendants-Appellees. )
)
Before: GILMAN and COOK, Circuit Judges; and COHN, District Judge.*
RONALD LEE GILMAN, Circuit Judge. Doreen Fuelling, a white female, was employed
as a phlebotomist by New Vision Medical Laboratories LLC in March of 2004 and assigned to work
in the laboratory at St. Rita’s Medical Center. She alleges that black employees regularly used
racially derogatory language when referring to white employees and to each other. Moreover, she
claims that Ruth Ward, a black female who supervised the phlebotomists, tolerated such language
when used by black employees, but disciplined white employees, including Fuelling, for using the
same language, and generally treated black employees more favorably than she treated white
employees.
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.
Fuelling filed a charge of discrimination with the Equal Employment Opportunity
Commission (EEOC) in March of 2005, claiming reverse race-based discrimination, a hostile work
environment, and retaliation in violation of both Title VII of the Civil Rights Act of 1964 and Ohio
state law. She then filed a complaint in the federal district court in January of 2006, asserting the
same claims that she had presented to the EEOC, as well as a claim for the intentional infliction of
emotional distress under the common law of Ohio. Finally, in June of 2006, Fuelling was discharged
by New Vision because, according to the company, she had filed false reports against three
coworkers, used racial slurs, and had conflicts with coworkers, patients, and clients of St. Rita’s.
This timely appeal followed the district court’s grant of summary judgment for New Vision
and St. Rita’s on all claims. For the reasons set forth below, we AFFIRM the judgment of the
district court.
I. BACKGROUND
A. Factual background
New Vision provides staff for the laboratories of six medical centers. It is jointly owned by
Van Wert County Hospital and St. Rita’s. St. Rita’s is also a customer of New Vision, paying New
Vision to manage and staff its medical laboratory. Fuelling alleges that, during her tenure there, she
was subjected to reverse racial discrimination, a hostile work environment, and retaliation in
violation of various federal and state laws.
In support of her claims, Fuelling makes several general allegations regarding racial language
used by black employees and discriminatory treatment by Ruth Ward, a black female who supervised
Fuelling and the other phlebotomists. Fuelling’s affidavit alleges that black employees “regularly
2
used racial language,” including “nigger” when referring to other black employees, and referred to
white employees as “white bitches,” “crackers,” and “vanilla wafers.” She alleges that she herself
was referred to as “the white bitch” by black employees “on numerous occasions,” although she
identified the speaker on only one occasion.
Such language, Fuelling contends, was often used in the presence of Ward. Fuelling claims
that Ward did not reprimand black employees who used these offensive words, instead allowing the
practice to continue “without comment.” In contrast, Ward allegedly reprimanded white employees
for using similar language. Fuelling also submitted affidavits from two white coworkers, Betty
Brown and Brenda Zachary, containing allegations of Ward treating black employees better than
white employees. Zachary, for example, claimed that Ward “regularly allowed black employees
much more leeway in coming into work late[] than white employees are allowed,” although she did
not cite any specific examples of such behavior.
In addition to the general allegations set forth above, Fuelling recounted several examples
of purportedly discriminatory treatment in support of her claims. One such allegation is that she was
called a “white bitch” by Kim Napier, a black coworker, on “at least one occasion.” She contends
that Napier was not disciplined for that comment.
In June of 2006, Fuelling filed a report claiming that an employee had called another
employee a “stupid f---ing Mexican wetback spic.” Susan Hymer, New Vision’s Executive Director,
said that Fuelling’s complaint was investigated by Ward and two other members of management but,
according to interviews with the employees that Fuelling had listed as witnesses, “[a]ll five of them
either did not hear [the comment] or did not hear anything but ‘spic.’” Hymer (who is white)
determined that Fuelling had made the complaint in bad faith, and further found that such complaints
3
were “a pattern” with Fuelling. The record does not indicate whether anyone was disciplined
regarding the incident.
On another occasion, Fuelling claimed that a black patient became hostile and called Fuelling
a “white bitch” several times. Fuelling later referred to the patient as a “stupid nigger,” a comment
that was reported to Ward. Ward then filed a disciplinary report against Fuelling for “making racial
slurs within the laboratory.” Brown’s affidavit asserts that Ward once approached Brown and
encouraged her to report Fuelling for having used the term “darkie” in a conversation. A supervisor
other than Ward filed a report against Fuelling for using the same term.
Zachary’s affidavit describes an incident in which Ward “yelled” at a white employee for
commenting that she had had “the shits” while suffering from influenza, but did not say anything a
few minutes later when a black employee said the “F” word loud enough for Ward to hear. The
record does not identify either of the employees involved in these verbal incidents.
Finally, Brown alleged that on two occasions Ward favored black individuals to fill available
phlebotomist positions. Brown stated that a black woman was chosen for a phlebotomist position
even though the woman purportedly had “no special qualifications for the job” as compared to any
other phlebotomist. On the other occasion, Brown alleged, a job in the outpatient department
became available and Ward asked if anyone wanted to take a class that “would lead to the job.”
Brown stated that several phlebotomists, including Brown, “indicated that [they] wanted to take the
class,” but that only one person, a black employee, “was allowed to take the class.” Hymer’s
affidavit explained that employees had to make their own arrangements to take the two required
courses in the class, and that the black employee was the only one who actually signed up for them,
an assertion that Fuelling does not dispute.
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The defendants, in response to Fuelling’s allegations, recount numerous disciplinary
problems with Fuelling during her employment with New Vision in the St. Rita’s laboratory, and
contend that these problems were the reason for her eventual termination. They specifically cite the
following: (1) Fuelling had ongoing conflicts with other employees, (2) a number of Fuelling’s
coworkers filed multiple complaints against her because she purportedly used racial slurs and acted
in an unprofessional manner towards coworkers and patients, (3) New Vision determined that
Fuelling submitted several false reports against her coworkers, and (4) New Vision received two
complaints from local law enforcement officers who reported Fuelling for being rude and
uncooperative when the officers requested that she draw blood for blood-alcohol samples. The
details of these allegations are described below, in chronological order.
Two months after Fuelling began working at St. Rita’s, she became embroiled in a personal
conflict with coworker Joan Castillo. A supervisor met with the two women in July of 2004 in an
unsuccessful attempt to resolve the conflict. Fuelling later accused Castillo of spreading a false
rumor about Fuelling, and Castillo accused Fuelling of calling her names. In November of 2004,
Ward filed a disciplinary action against Fuelling, stating that the “situation ha[d] become very hostile
and [was] affecting other 3rd shift staff.” Fuelling agreed with this description in her deposition.
Ward could not recall if she investigated the women’s claims, but said that she spoke with and
disciplined both of them.
Will Cason, St. Rita’s vice-president of human resources, also attempted to resolve the
Fuelling-Castillo conflict because their feud “was disruptive to the mission of the organization.” He
recommended to Hymer that both women be suspended. According to Cason, final employment
decisions are made by New Vision, although St. Rita’s provides consultation and recommendations
5
in such matters. Hymer explained in the disciplinary report filed against Fuelling that New Vision
felt that “the performance and the operation of the department were being jeopardized” by the
dispute. Both women were placed on administrative suspension, but lost no work days.
In the fall of 2004, Fuelling complained that Ward had announced patients’ full names,
locations, and medical tests over the hospital radio on three separate occasions, in violation of the
Health Insurance Portability and Accountability Act of 1996 (HIPAA). According to Hymer, New
Vision investigated the allegations, but found no evidence that Ward had broadcast the patients’
names or violated HIPAA. Fuelling contends that Ward thereafter retaliated against her for having
made the allegations.
Between the fall of 2004 and the spring of 2005, multiple coworkers reported Fuelling for
using racial slurs on at least three occasions. Fuelling admitted that she used the words, but argued
that her comments were taken out of context. According to the disciplinary reports documenting
these incidents, Fuelling was told that termination would result if such conduct continued.
In March of 2005, Fuelling filed a charge of discrimination with the EEOC that recounted
her allegations of race-based discrimination and retaliation. She subsequently received right-to-sue
letters from the EEOC. Fuelling filed the present complaint in federal district court in January of
2006, while she was still working at New Vision.
In March of 2006, Hymer completed another disciplinary report concerning Fuelling, this
time based on reports that Fuelling had engaged in “multiple incidents” of rude and confrontational
behavior towards coworkers, the staff of St. Rita’s pharmacy, and local law enforcement officers.
That report documented, in particular, two complaints submitted by the County Sheriff’s Department
and the Lima City Police Department, claiming that Fuelling had been “confrontational,
6
uncooperative, and difficult” when officers asked her for assistance in drawing blood samples for
blood-alcohol testing. Hymer’s report stated that “[i]f Doreen chooses not to modify her behavior,
future incidents will result in progressive disciplinary action.” Fuelling denied her coworkers’
allegations and challenged the officers’ versions of events, explaining that she had refused their
demands for blood-alcohol samples because, on each occasion, the officers had insisted that she
conduct the blood draws in violation of the hospital’s standard protocol.
Following the March 2006 disciplinary action, Fuelling asked a number of St. Rita’s
employees to sign a “survey” expressing their support for her. Hymer received complaints about
Fuelling’s survey from various employees. As a result, Hymer completed a disciplinary report
against Fuelling for “pursuing personal activity on work time and interfering with the work of
others,” in violation of New Vision policy.
From April to June of 2006, Fuelling filed multiple complaints against various coworkers
(none of which alleged the use of racial slurs), including a complaint against “the entire second
shift.” But she herself was the subject of two coworker complaints during the same time period.
One of Fuelling’s complaints accused another phlebotomisat at St. Rita’s of sticking patient Mary
Barbier five times in an attempt to draw blood. Barbier had recounted to Fuelling a prior incident
in which a phlebotomist had stuck Barbier five times when drawing blood. Fuelling thought that she
knew the identity of the phlebotomist and submitted a complaint against that person. Ward
investigated the report and spoke with Barbier, but found that the incident had occurred at another
medical center and did not involve either New Vision or St. Rita’s. Fuelling later conceded that her
accusations were false.
7
Hymer decided to terminate Fuelling’s employment in June of 2006 because, in the four
months leading up to Fuelling’s termination, “New Vision had received complaints about Fuelling’s
behavior from at least seven co-workers, two police departments, a nurse, and the Pharmacy
Department at St. Rita’s.” Fuelling’s termination, New Vision asserts, was primarily based on the
false reports that Fuelling had filed against her coworkers, but was also based on Fuelling’s
undisputed history of conflicts with coworkers and others, as well as Fuelling’s resistance to
counseling on those issues. New Vision replaced Fuelling with another white female.
B. Procedural background
Fuelling brought suit against New Vision and St. Rita’s in January of 2006, and filed an
amended complaint one year later. Her complaint as amended alleges reverse racial discrimination,
a hostile work environment, and retaliation in violation of both Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2(a) and 3(a), and Title VII’s state-law counterpart, Ohio Revised Code
§ 4112.02. It also asserts a claim of intentional infliction of emotional distress, in violation of Ohio
common law. The defendants thereafter filed a motion for summary judgment, which the district
court granted. This timely appeal followed.
II. ANALYSIS
A. Standard of review
We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,
Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). In considering a motion for summary judgment, the district court must construe all reasonable
8
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). The central issue is “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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
B. Fuelling’s reverse race discrimination claim
Title VII prohibits employers from “fail[ing] or refus[ing] to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2. In the absence of direct evidence of discrimination,
“the well-established McDonnell Douglas/Burdine burden-shifting framework applies to claims of
discrimination brought under Title VII . . . and Ohio law.” McClain v. Nw. Cmty. Corr. Ctr. Judicial
Corr. Bd., 440 F.3d 320, 332 (6th Cir. 2006) (articulating that framework and citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and Tex. Dep’t Cmty. Affairs v. Burdine, 450 U.S. 248(1981)). Accordingly, a plaintiff claiming race-based discrimination supported only by
circumstantial evidence must demonstrate that “(1) she is a member of a protected class, (2) she was
subjected to an adverse employment action, (3) she was qualified, and (4) she was treated differently
than similarly-situated male and/or nonminority employees for the same or similar conduct.” Id.A plaintiff alleging discriminatory termination of employment must show under the fourth
McDonnell Douglas prong that he or she was replaced by a person outside of the protected class.
Logan v. Denny’s, Inc., 259 F.3d 558, 567 (6th Cir. 2001).
The original McDonnell Douglas standard required the plaintiff to show that “he belongs to
a racial minority” because “[m]embership in a socially disfavored group was the assumption on
9
which the entire McDonnell Douglas analysis was predicated.” Parker v. Baltimore & Ohio R.R.
Co., 652 F.2d 1012, 1016-17 (D.C. Cir. 1981) (modifying the McDonnell Douglas framework in a
race discrimination case brought by a white plaintiff). But “Title VII, of course, prohibits racial
discrimination against all groups.” Murray v. Thistledown Racing Club, Inc., 770 F.2d 63, 67 (6th
Cir. 1985) (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279 (1976)). Thus
“[w]hites are also a protected group under Title VII.” Parker, 652 F.2d at 1017.
Accordingly, this court has modified the first prong of the McDonnell Douglas standard to
address claims of race-based discrimination brought by white plaintiffs. See Murray, 770 F.2d at 67(“‘Reverse discrimination’ claims require application of a McDonnell Douglas standard modified
to reflect this context as well as the factual situation of the claim.”). The first prong in establishing
a prima facie case in such “reverse discrimination” cases does not require the plaintiff to show that
he or she is a member of a racial minority. Instead, it requires the plaintiff to establish “background
circumstances [to] support the suspicion that the defendant is that unusual employer who
discriminates against the majority.” Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255-57
(6th Cir. 2002) (alteration in original; internal quotation marks omitted) (explaining that a plaintiff
may show that such background circumstances exist by presenting evidence that a defendant’s
“unlawful consideration of race as a factor in hiring in the past justifies a suspicion that incidents of
capricious discrimination against whites because of their race may be likely,” and concluding that
the plaintiff had made such a showing where the person responsible for the company’s hiring was
black (internal quotation marks omitted)); see also Parker, 652 F.2d at 1018 (explaining that
“evidence of a racially discriminatory environment serve[s] as a functional equivalent of the first
McDonnell Douglas criterion, membership in a racial minority”).
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Once the plaintiff has established a prima facie case of discrimination, the burden shifts to
the defendant to proffer a legitimate, nondiscriminatory reason for the adverse employment action.
See McClain, 440 F.3d at 332. “If [the defendant] successfully carries its burden, the burden returns
to [the plaintiff] to produce evidence from which a jury could find that [the defendant’s] stated
reason is merely pretextual.” Id. (citing Burdine, 450 U.S. at 253). The plaintiff may establish
pretext by showing that the defendant’s alleged nondiscriminatory reason “(1) had no basis in fact,
(2) did not actually motivate defendant’s conduct, or (3) was insufficient to warrant the challenged
conduct.” Zambetti, 314 F.3d at 258.
Although the defendants in the case before us concede that Fuelling experienced adverse
employment actions (prong two) and was a qualified phlebotomist (prong three), they argue that she
did not satisfy either the first or fourth prongs of the prima facie test. The defendants also argue that,
even if Fuelling is found to have established a prima facie case, she failed to establish that New
Vision’s legitimate reasons for firing her were only a pretext designed to hide discrimination.
We need not decide whether Fuelling established the requisite “background circumstances”
under the first prong of the prima facie analysis because we conclude that (1) her prima facie case
fails under the fourth prong, and (2) even assuming that she had established a prima facie case, she
has failed to show pretext. Each of these conclusions is discussed in turn.
1. The fourth prong
Fuelling claims that the disciplinary actions taken against her and her eventual termination
were discriminatory. The latter claim clearly fails because she was replaced by a white female. See
Logan, 259 F.3d at 567. Her claim of discriminatory discipline also lacks merit because she failed
11
to assert any factual allegations whatsoever showing that she was similarly situated to the black
employees who were purportedly not disciplined for the same conduct that Fuelling engaged in.
This court has explained the showing that is required under the fourth prong of the prima
facie test as follows:
In order for two or more employees to be considered similarly-situated for purposes
of creating an inference of disparate treatment in a reverse discrimination case, the
plaintiff must prove that all of the relevant aspects of his employment situation are
nearly identical to those of the [] employee who he alleges was treated more
favorably.
Leadbetter v. Gilley, 385 F.3d 683, 691 (6th Cir. 2004) (brackets and internal quotation marks
omitted). “The similarities between the plaintiff and the [other] employee must exist in all relevant
aspects of their respective employment circumstances. Differences in job title, responsibilities,
experience, and work record can be used to determine whether two employees are similarly situated.”
Id. (citation and internal quotation marks omitted).
Fuelling has identified only one black employee, Kim Napier, who allegedly called Fuelling
a derogatory name and was not disciplined. But even then, Fuelling provided no information about
Napier—such as her position, job responsibilities, years of experience, length of tenure at New
Vision, or disciplinary history—that would indicate whether Napier and Fuelling were similarly
situated in all relevant aspects of their employment. See id.Apart from the Napier incident, Fuelling fails to identify any other black employee who was
not disciplined for similar behavior. Fuelling states that she was disciplined by Ward for calling a
patient a “stupid nigger,” and that Ward did not discipline black employees for using the same
language. But Fuelling does not identify any of those black employees, cite any specific instances
12
in which black employees other than Napier used such language, or assert any facts indicating that
black employees who were not disciplined were “similarly situated” to her.
Zachary alleges in her affidavit that Ward yelled at a white employee for using the term “the
shits,” but did not reprimand a black employee who, a few minutes later, used the “F” word. Neither
employee is ever identified. The same is true of her allegations about an employee who called
someone a “spic.” Even assuming that the speakers were not disciplined for making these
comments, Fuelling fails to demonstrate how they were similarly situated to her.
Turning to Brown’s affidavit, she alleged that Ward chose a black woman to fill a
phlebotomist position even though the woman had “no special qualifications” compared to any other
phlebotomist, and that only a black employee “was allowed” to take a class required for a job in
outpatient services. With regard to the former allegation, Brown provides no evidence to
substantiate her conclusory assertion about the black woman’s qualifications. The latter allegation
is also unsupported by specific factual allegations. Brown does not identify the “several
phlebotomists” who were allegedly denied access to the class or claim that they were nonblack
individuals. But even assuming that they were all white, Brown fails to allege any facts indicating
that the black woman who was “allowed” to take the class was similarly situated to those
unidentified persons who were allegedly not allowed to take the class.
The party opposing a motion for summary judgment “must present some ‘specific facts
showing that there is a genuine issue [of fact] for trial,’” Moore v. Holbrook, 2 F.3d 697, 699 (6th
Cir. 1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)), and affidavits submitted
in support thereof “must be made on personal knowledge,” Fed. R. Civ. P. 56(e)(1). Under this
standard, Fuelling has failed to create a genuine issue of material fact with respect to whether she
13
was similarly situated to the black employees who were allegedly treated better than she was treated.
See, e.g., Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (explaining
that a plaintiff is “required to prove that all of the relevant aspects of his employment situation were
nearly identical” to those of the employee who was allegedly treated more favorably in order to
satisfy the fourth prong of the prima facie test (emphasis and internal quotation marks omitted)).
That failure is fatal to her prima facie case.
2. Pretext
Moreover, even if we were to assume that Fuelling had established a prima facie case of
discrimination, her claim ultimately fails for another reason. The record contains ample evidence
supporting the district court’s conclusion that Fuelling failed to show that the defendants’ legitimate
and nondiscriminatory reason for disciplining and later firing her was only a pretext designed to hide
discrimination.
According to the defendants, the primary reason that they disciplined and eventually
terminated Fuelling was her filing of three false reports against other employees—one against Ward
for purportedly broadcasting patients’ names over the hospital radio, a second against a fellow
phlebotomist for supposedly sticking St. Rita’s patient Barbier five times in an attempt to draw
blood, and a third against a coworker who had allegedly called another employee a “stupid f---ing
Mexican wetback spic.” The defendants contend that these reports were investigated and proven to
be false, thus providing legitimate grounds for disciplining and terminating Fuelling.
Fuelling argues in response that the real reason for New Vision’s actions was Ward’s
discriminatory animus. Specifically, she asserts that the investigations into Fuelling’s complaints
were biased by Ward’s race-based prejudice. But Fuelling does not dispute that Hymer, not Ward,
14
made the decision to terminate her, and she does not allege that Hymer herself harbored any
discriminatory animus toward Fuelling. She further concedes that Ward did not recommend that
Fuelling be terminated and that Ward’s role in Fuelling’s termination was limited to printing out
Fuelling’s disciplinary actions “so that [management] would have all the documents they needed.”
The heart of Fuelling’s pretext argument is that Hymer “relied on what Ward told her and the
information Ward provided her as part of the decision-making process.” Hymer’s reliance on the
purportedly biased reports, Fuelling contends, tainted Hymer’s decision to terminate Fuelling.
Fuelling’s argument, however, is without merit because she has failed to show either (1) that the
investigations were biased, or (2) that Ward’s alleged bias can be imputed to Hymer.
The district court explained that
the “determinative question” in a situation where another employee, such as Ward,
is alleged to have influenced the corporate decision-maker is “whether [the plaintiff]
has submitted evidence that [a particular employee’s] racial animus was a cause for
termination.” Noble v. Brinker Int’l, Inc., 391 F.3d 715, 723 (6th Cir. 2004)
(citations omitted). Fuelling has not shown any evidence that any racial animus held
by Ward affected the investigations of the Barbier investigation or the alleged anti-
hispanic comment, or that the findings of those investigations, as presented to Hymer,
were biased. The assertion that Ruth [Ward] “falsely reported the outcome of
[Ward’s] interview with Ms. Barbier” is conjectural and has no basis in the record
cited by Fuelling.
(first and second alteration in original); see also Noble, 391 F.3d at 724 (“Unless the statements or
conduct of nondecisionmakers can be imputed to the ultimate decisionmaker, such statements or
conduct [can not] suffice to satisfy the plaintiff’s burden . . . of demonstrating animus.” (alteration
in original; internal quotation marks omitted)).
To start with, Fuelling has failed to show that the investigations were biased. Her contention
that Ward’s investigation into the Barbier incident was biased is disingenuous when Fuelling herself
15
admits that her accusations against the St. Rita’s phlebotomist were false. She thus concedes the
very conclusion that Hymer reached based on Ward’s purportedly biased investigation.
Regarding Fuelling’s HIPAA-related report against Ward, Hymer had the complaint
investigated by having Ward’s radio broadcasts monitored for the next three days, but did not find
any evidence of the type of conduct that Fuelling had alleged. Although Fuelling asserts that this
investigation was also biased, the claim rings hollow because Ward obviously did not investigate the
matter; rather, she was the subject of the investigation. Fuelling provides no explanation as to how
Ward’s bias might have influenced the investigation when Ward was its target.
Finally, Ward and two other managers investigated Fuelling’s complaint that a coworker had
called another employee a “stupid f---ing Mexican wetback spic.” The five witnesses identified by
Fuelling either denied that anyone had made that comment or heard only the word “spic.” As a
result, Hymer concluded that Fuelling’s report of the incident was based on false information.
Fuelling claims that this investigation was biased because of Ward’s discriminatory animus, but she
fails to explain how Ward’s bias might have affected the other two managers, neither of whom are
themselves alleged to be racially biased.
Based on the foregoing, Fuelling has failed to show that the investigations into her
complaints were biased because of Ward’s allegedly discriminatory animus, or that they served as
a pretext for New Vision’s disciplinary actions against her. Even assuming, however, that Fuelling
sufficiently alleged facts from which a reasonable jury could infer that the investigations were
biased, Fuelling could prevail with respect to her discriminatory-discipline claim only by further
showing that Hymer was a “conduit” of Ward’s purported bias. See Noble, 391 F.3d at 737. This
she has failed to do.
16
In Christian v. Wal-Mart Stores, Inc., 252 F.3d 862 (6th Cir. 2001), this court found that a
coworker’s racial animus against the plaintiff could be imputed to the supervisor who fired the
plaintiff because the coworker’s negative report of an incident involving the plaintiff “was the
exclusive and decisive factor” in the termination decision. Id. at 878 (explaining that the supervisor
did not conduct his own investigation, but terminated the plaintiff based exclusively on the
coworker’s allegations). Those facts, the court concluded, distinguished the case from Wilson v.
Stroh Cos., 952 F.2d 942, 946 (6th Cir. 1992) (finding no “causal nexus” between the company’s
decision to terminate the plaintiff and a supervisor’s racial animus because the decisionmaker had
conducted an independent investigation into the plaintiff’s conduct), but were analogous to the facts
of Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (holding that a supervisor’s age-based
prejudice tainted a committee’s decision to fire the plaintiff because the supervisor’s portrayal of the
plaintiff to the committee in the worst possible light “may well have been decisive” in light of the
fact that the committee’s deliberations were “brief, perhaps perfunctory” and none of the committee
members could remember having considered the issue of the plaintiff’s termination). Christian, 252
F.3d at 878. The Shager court explained that if a decisionmaker fires the plaintiff “for reasons
untainted by any prejudice of” the other employee, then “the causal link between that prejudice and
[the plaintiff’s] discharge is severed” and the plaintiff cannot maintain his or her claim. 913 F.2d
at 405.
Here, it is undisputed that the disciplinary reports that Ward provided to Hymer were
considered in the decisionmaking process. But the record is replete with evidence showing that
Hymer had nondiscriminatory grounds for terminating Fuelling that were independent of Ward’s
alleged bias. Specifically, multiple disciplinary reports were filed against Fuelling by people other
17
than Ward, including Hymer, documenting various problems with Fuelling’s conduct. The
complaints included Fuelling’s use of racial slurs and abusive language, her conflicts with other
employees, complaints from law enforcement officers and St. Rita’s pharmacy staff, and Fuelling’s
efforts to petition her coworkers for support.
Hymer personally handled the complaints about Fuelling from the pharmacy staff, law
enforcement officers, and the employees who were upset by Fuelling’s petition, and for the last few
months before Fuelling’s termination personally handled everything involving Fuelling. She also
explained that in her seven years as New Vision’s Executive Director, “the number of complaints
[received] concerning Doreen Fuelling’s behavior far exceeded the number of complaints for any
other employee,” and that “[i]n most of my investigations, [and based on] the things Doreen told me,
she saw things very differently than everyone else.”
In addition, New Vision’s employee manual sets forth grounds for disciplining and
terminating an employee. It states that “disciplinary action, ranging from verbal warning to
termination, may be taken for violations including but not limited to” a violation of hospital policy,
discourteous treatment of patients, visitors, or other employees, interfering with the work of others,
and making any false statement concerning any patient, visitor, or employee.
The foregoing supports the district court’s conclusion that any bias on the part of Ward
cannot be properly imputed to Hymer because Hymer fired Fuelling “for reasons untainted by any
prejudice” of Ward, thus severing the causal link between Ward’s alleged bias and Fuelling’s
discharge. See Shager, 913 F.2d at 405; Wilson, 952 F.2d at 946. Furthermore, Fuelling has failed
to cite any evidence suggesting that Hymer did not hold an honest belief in her reasons for
terminating Fuelling or that Hymer failed to make a “reasonably informed and considered decision.”
18
See Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 503 (6th Cir. 2007) (affirming the grant
of summary judgment for the employer where the decisionmaker had before him complaints from
various people about the plaintiff’s inadequate job performance and demeaning treatment of others,
and where the decisionmaker personally observed that the plaintiff failed to address problems that
were his responsibility). Fuelling has therefore failed to meet her burden of raising a genuine issue
of material fact as to whether Hymer’s stated reasons for terminating her were designed to hide
Ward’s alleged discriminatory animus. Accordingly, we affirm the district court’s grant of summary
judgment to the defendants on Fuelling’s claim of discrimination based on disparate treatment.
C. Hostile work environment claim
Title VII, 42 U.S.C. § 2000e-2(a)(1), also prohibits discrimination that is “so ‘severe or
pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive working
environment.’” Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999) (alteration in original)
(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). A plaintiff can establish a
prima facie case of a race-based hostile work environment by demonstrating the following five
elements:
1) that he [or she] is a member of a protected class; 2) that he [or she] was subjected
to unwelcome racial harassment; 3) that the harassment was based on race; 4) that the
harassment had the effect of unreasonably interfering with [the plaintiff’s] work
performance by creating an intimidating, hostile, or offensive work environment;
and 5) the existence of employer liability.
Newman v. Fed. Express Corp., 266 F.3d 401, 405 (6th Cir. 2001).
This court “look[s] to the totality of the circumstances” in determining whether a hostile or
abusive workplace existed. Id. “Isolated incidents . . . , unless extremely serious, will not amount
to discriminatory changes in the terms or conditions of employment.” Bowman v. Shawnee State
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Univ., 220 F.3d 456, 463 (6th Cir. 2000). Appropriate factors to consider “include the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Id (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
Fuelling’s claim is based on her contention that, “on numerous occasions,” she was referred
to as “the white bitch” by black employees. On only one occasion, however, was Fuelling able to
identify the speaker. Her claim is otherwise based on the general allegation asserted in her affidavit
that “[b]lack employees regularly used racial language, including the term ‘nigger.’ When speaking
of a white person critically, Fuelling claimed, black employees would often use the terms ‘white
bitch,’ ‘f---ing white bitch,’ white trash,’” as well as “‘crackers’ or ‘vanilla wafers.’”
Brown’s and Zachary’s affidavits contain similarly generalized allegations. But their
allegations are not relevant to Fuelling’s claim because Brown and Zachary do not allege that
Fuelling was aware of the offensive comments mentioned by Brown and Zachary, and because
Fuelling herself does not claim that she was aware of those comments. See Burnett v. Tyco Corp.,
203 F.3d 980, 981 (6th Cir. 2000) (concluding that evidence regarding harassing behavior toward
women, set forth in affidavits submitted by two of the plaintiff’s coworkers, was not relevant to the
plaintiff’s hostile-work-environment claim because there was no evidence that the plaintiff was
aware of the conduct at the time). Fuelling’s claim must therefore be evaluated based on her own
allegations. See id.But Fuelling has produced no evidence showing that the comments were more than merely
offensive. She did not allege facts indicating that they were either humiliating or physically
threatening, nor did she explain or provide a single example of how the comments made her job
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more difficult. Most problematic for Fuelling, however, is the fact that she failed to present any
evidence to substantiate her conclusory assertions that the remarks occurred “numerous” times,
“often,” or “regularly” during her two-year tenure with New Vision. Such allegations are
unaccompanied by specific instances of racial comments to support her claim that they occurred so
frequently as to be severe or pervasive, and give no indication of the time, place, or context of the
remarks. Compare Sweezer v. Mich. Dep’t of Corr., No. 99-1644, 2000 WL 1175644, at *5-6 (6th
Cir. Aug. 11, 2000) (concluding that the plaintiff had failed to create a genuine issue of material fact
as to whether demeaning comments about the plaintiff’s nationality were severe or pervasive
because, although the plaintiff claimed that he was “constantly harassed,” he did not specify the time
frame in which a number of instances of racially discriminatory conduct occurred, including five
particular derogatory comments), with Abeita v. TransAm. Mailings, Inc., 159 F.3d 246, 252 (6th Cir.
1998) (holding that a plaintiff’s assertions that a coworker’s sexual and derogatory gender-based
comments were “commonplace,” “ongoing,” and “continuing” created a genuine issue of material
fact as to her hostile-work-environment claim where those assertions were supported by evidence
in interrogatories and deposition testimony that described in detail the specific remarks and the
approximate dates on which they occurred throughout her term of employment).
In light of the foregoing, Fuelling has failed to create a genuine issue of material fact
regarding the severity or pervasiveness of the alleged racially derogatory language. We therefore
affirm the district court’s grant of summary judgment to the defendants on Fuelling’s claim of
discrimination based on a hostile work environment.
D. Retaliation claim
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Title VII also “protects from retaliation employees who have opposed discriminatory
employment practices.” Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (citing 42 U.S.C.
§ 2000e-3(a)). To make out a prima facie case of retaliation based on circumstantial evidence, a
plaintiff must show that “(1) he [or she] engaged in activity protected by Title VII; (2) this exercise
of protected rights was known to the defendant; (3) the defendant thereafter took [an] adverse
employment action against the plaintiff; and (4) there was a causal connection between the protected
activity and the adverse employment action.” Id.
The defendants do not dispute that the first, second, and third prongs are satisfied here based
on the fact that Fuelling filed an EEOC charge in March of 2005, the defendants became aware of
the EEOC charge at that time, and the defendants subsequently terminated Fuelling’s employment
in June of 2006. Whether Fuelling satisfied the causation requirement, however, is in dispute. To
show causation, a plaintiff must “proffer evidence sufficient to raise the inference that her protected
activity was the likely reason for the adverse action.” EEOC v. Avery Dennison Corp., 104 F.3d 858,
861 (6th Cir. 1997) (internal quotation marks omitted).
In this case, Fuelling filed an EEOC charge 15 months before her termination. She does not
dispute that, under Sixth Circuit caselaw, a 15-month period between the protected activity and the
adverse employment action is insufficient on its own to establish a causal connection. See Dixon,
481 F.3d at 334 (explaining that “this Court has typically found the causal connection element
satisfied only where the adverse employment action occurred within a matter of months, or less, of
the protected activity”). On the other hand, Fuelling correctly points out that “a mere lapse in time
between the protected activity and the adverse employment action does not inevitably foreclose a
finding of causality.” Id. at 335.
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Fuelling’s argument that a causal connection exists despite this 15-month gap is based on the
same allegations that she asserts in support of her disparate-treatment and hostile-work-environment
discrimination claims. That is, she argues that Ward’s purportedly disparate treatment of black and
white employees is evidence of a causal connection, as is evidence of the “culture of racism and
favoritism” allegedly created by Ward’s discriminatory animus.
The district court, however, concluded that Fuelling provided no evidence of a causal
connection between Ward’s purported bias and Hymer’s subsequent decision to terminate Fuelling.
Specifically, the court found “no evidence that the information with which Hymer made her ultimate
decision was in any way tainted by anyone’s racial animus or as a result of Fuelling’s [EEOC]
charges.” It particularly noted that Hymer’s reasons for terminating Fuelling (primarily her
submission of false reports against coworkers, but also complaints against Fuelling by law
enforcement officers, pharmacy personnel, and coworkers) arose in the spring of 2006, “at a time
considerably more proximate to the decision to fire her.” The court thus determined that Fuelling
had failed to establish either a prima facie case of retaliation or to show that Hymer’s reasons for
firing her were pretextual.
For the reasons discussed at length in Parts II.B.&C. above, we too find Fuelling’s arguments
on causation unpersuasive. We therefore affirm the district court’s grant of summary judgment for
the defendants on Fuelling’s retaliation claim.
E. Claim for intentional infliction of emotional distress
Fuelling’s final claim is for intentional infliction of emotional distress under the common law
of Ohio, arguing that the defendants’ purportedly discriminatory conduct was extreme and
outrageous. Even assuming, however, that the defendants were found liable for discriminating or
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retaliating against Fuelling in violation of Title VII, “such a conclusion would not be enough [to
establish intentional infliction of emotional distress], for it is well-established under Ohio law that
discrimination, by itself, is insufficient to support an intentional infliction of emotional distress
claim.” Baetzel v. Home Instead Senior Care, 370 F. Supp. 2d 631, 644 (N.D. Ohio 2005); see also
Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999) (explaining, in the context of
the ADEA, that “an employee’s termination, even if based upon discrimination, does not rise to the
level of ‘extreme and outrageous conduct’ without proof of something more. If such were not true,
then every discrimination claim would simultaneously become a cause of action for the intentional
infliction of emotional distress.”).
To state a claim for intentional infliction of emotional distress under Ohio common law, a
plaintiff must show:
(1) that the actor either intended to cause emotional distress or knew or should have
known that the actions taken would result in serious emotional distress to the
plaintiff, (2) that the actor’s conduct was so extreme and outrageous as to go beyond
all possible bounds of decency and was such that it could be considered as utterly
intolerable in a civilized community, (3) that the actor’s actions were the proximate
cause of plaintiff’s psychological injury, and (4) that the mental anguish suffered by
the plaintiff was serious and of a nature that no reasonable man could be expected to
endure it.
Buckman-Peirson v. Brannon, 2004 Ohio 6074, ¶ 29, 822 N.E.2d 830, 835 (Ohio Ct. App. 2004)
(internal quotation marks omitted); see also Baab v. AMR Servs. Corp., 811 F. Supp. 1246, 1269
(N.D. Ohio 1993) (“[T]o say that Ohio courts narrowly define ‘extreme and outrageous conduct’
would be something of an understatement.”).
“[L]iability clearly does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Yeager v. Local Union 20, 453 N.E.2d 666, 671 (Ohio 1983),
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abrogated on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007). It has instead
been found “only where the conduct has been so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” Id.; see also Mowery v. City of Columbus, 2006 Ohio 1153,
¶ 50 (finding that racial comments, jokes, and criticism—including statements about hating white
people and wanting an all-black department—as well as the distribution of racially charged literature,
were inappropriate for the workplace, but not so extreme and outrageous as to go beyond all bounds
of human decency).
The district court found that although Fuelling had “at least alleged some insulting and
inappropriate behavior” by the defendants, she had failed to raise a triable issue as to whether the
conduct was extreme or outrageous. We agree with the district court’s analysis and affirm its grant
of summary judgment to the defendants on this claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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