Scott v. Total Renal Care

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0664n.06
Filed: September 5, 2006
No. 05-2151
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBORAH SCOTT, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
TOTAL RENAL CARE, INC., a foreign ) EASTERN DISTRICT OF MICHIGAN
corporation, )
)
)
DAVITA, INC., a foreign corporation, )
)
Defendants-Appellees. )
)
)
Before: GIBBONS, ROGERS, Circuit Judges; HOLSCHUH, District Judge.*
ROGERS, Circuit Judge. This is a diversity action for retaliatory discharge in violation
of Michigan public policy and statutory law. The plaintiff, Deborah Scott, seeks reversal of the
district court’s grant of summary judgment to the defendants, DaVita, Inc., Scott’s former employer,
and Total Renal Care, Inc., DaVita’s corporate predecessor. The district court’s judgment is
affirmed.
*
The Honorable John D. Holschuh, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
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Scott v. Total Renal Care, Inc., et al.
I.
On March 26, 1996, Scott began working for DaVita as a social worker. DaVita is a private,
for-profit dialysis clinic located in North Oakland, Michigan. Scott was terminated on February 5,
2004, allegedly in retaliation for internal complaints to DaVita management related to DaVita’s
inadequate staffing and racially discriminatory hiring practices.
Scott addressed a letter to Regional Director Martin Konal, dated July 8, 2003, complaining
about various happenings at DaVita. Scott also enclosed a four-page letter written by co-worker
Marietta Kroll. Scott “signed and verified for accuracy” the letter by Kroll. Scott also “verif[ied]
points covered” in a recent meeting with Konal, Janet Matsura (Scott’s then-supervisor), and Kroll.
In her letter to Konal, Scott complained about so-called “critical issue[s],” such as a lack of
“enough staff,” the hiring of inexperienced staff, management’s coercion of some employees to quit
their jobs, and unspecified violations of the employee handbook and DaVita’s “values.” These same
sorts of allegations also appeared in Kroll’s letter, which was attached to Scott’s letter. While
discussing this letter in her deposition, Scott emphasized DaVita’s inadequate staffing.
In November of 2003, Scott made an anonymous complaint about DaVita’s staffing and some
other practices to Michigan authorities, but the authorities did not pursue Scott’s complaint.
In December of 2003, Scott spoke to Konal and expressed concern that Facility Administrator
Geraldo Todd, who at the time was Scott’s immediate supervisor, “was terminating the white
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employees and hiring all blacks, and that he was favoring the black race in general.” Konal told
Scott that he would review her complaint. Konal admitted in his deposition that Todd had in fact
been “replacing whites with blacks,” but Konal was not troubled by this because “the team was
predominantly Caucasian while the patients are 70 percent African American. I thought that it was
a positive thing for the unit to have a better—a more diverse team.”
Scott also brought up Todd’s alleged racial discrimination in a meeting in January of 2004
with People Services Manager Mary Nixon. Todd in his deposition denied any knowledge of Scott’s
racial discrimination complaints.
In a letter dated January 28, 2004, addressed to Bob Schlichenmaier of Renal Network 11,
Scott accused colleague and Unit Secretary Kristin Clark of failing to provide important paperwork
in a timely manner. Renal Network is an organization that gathers information on renal clinics in
Michigan. It is a private, cooperative association of clinics and is not a part of DaVita. Scott
provided a copy of her Renal Network letter to Todd and others at DaVita.
Scott’s letter to Schlichenmaier stated that Clark missed a January 12, 2004, deadline to
complete required data forms. Further, Clark requested an extended deadline of January 16, but she
missed that deadline too. A letter, dated January 28, stated that “we will need another extension for”
Clark to do her work. The letter also stated that Scott and others were not at fault for the delay but
that Clark had failed to retrieve the needed information for the forms.
In early February 2004, Todd saw the letter that Scott addressed to Renal Network 11 for the
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first time. He faxed a copy of it to Konal along with a message that it contained untruthful
statements. Konal said in his deposition that he considered Scott’s letter “unprofessional” and that
he thought Scott’s letter misrepresented the company. Konal and Todd discussed the letter. Todd
made known to Konal his plan to “give [Scott] a written warning for that conduct,” referring to the
letter.
On January 29, 2004, Scott and some of her co-workers met with People Services Manager
Mary Nixon. The meeting’s attendees included Nixon, Scott, Kroll, and Linda Aiken. The
employees complained that staffing was insufficient. Scott also complained that Todd was not
approachable, that management had treated some employees with “favoritism,” and that Clark could
not be depended on “to do anything.” As noted above, at this meeting Scott also brought up Todd’s
alleged racial discrimination.
On February 5, 2004, Todd requested a meeting with Scott. According to Todd’s
documentation of the meeting, he met with Scott to “discuss a letter [she] had written on January 28,
2004” to Renal Network 11 as well as some memoranda written by Scott. Todd brought a witness
with him, Marcia Schweisthal, the Clinic Coordinator. Todd noted in his documentation for the
meeting that “[e]fforts to focus on the DaVita values violations such as Integrity, Team,
Accountability, as well as Service Excellence proved unsuccessful.” According to Todd,
The session quickly digressed to a point where the DaVita teammate mentioned in
the letter, Krist[i]n Clark, Unit Secretary, was asked to join the discussion to clear up
inconsistent comments made by [Scott]. At this point [Scott] repeated her statement
that Krist[i]n informed her that all the requested documents for the Renal Network
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were completed. Krist[i]n emphasized that she made no such statement to [Scott] as
well as asked why with a team of three full time clerical teammates and one part time
clerical teammate she was singled out by full name in [Scott’s] letter to the Renal
Network. Regarding the completed documents, [Scott] stated to Krist[i]n, “You are
a liar!” . . . [Scott] abruptly stated she felt that all three teammates had planned this
meeting in advance and was “out to get her”. [Scott] stated she would sue me if her
opinion proved correct.
[Scott] then walked out of the meeting and stated she was leaving the facility
for the day. I asked [Scott] not to leave the facility and to resume the meeting to
bring some closure. I also informed [Scott] that if she immediately left the facility
for the day, I would view this as job abandonment on her part. [Scott] stated
emphatically she was having no part of the meeting and was leaving. At this point
I again informed [Scott] that if she left the facility I would view this as job
abandonment and that I would be forced to take appropriate actions. [Scott] then for
the first time abruptly stated that she was sick with cold-like symptoms and was
leaving immediately. Up to this point [Scott] not only appeared physically healthy
but also had not previously shared a desire to leave the facility due to illness. I stated
to [Scott] that I was requesting that she remain at North Oakland Dialysis for at least
one hour to conclude the meeting tasks. For a third time, I informed [Scott] that if
she left immediately I would view this as job abandonment. [Scott] continued to
gather her coat and personal items and left the facility. . . .
I immediately contacted [and consulted] my Regional Director, Marty Konal,
and my People Services Manager, Mary Nixon. . . . Following a promptly arranged
conference call with our DaVita Legal Counselor, Steve Cooper, the decision was
made to immediately terminate Deborah Scott due to job abandonment. A letter
informing [Scott] of this decision was written by me and reviewed by Marty and
Mary.
According to the sworn declaration of Schweisthal, she witnessed the February 5 meeting.
It was “Mr. Todd’s practice” to bring a witness “when he met with individual employees to discuss
performance improvement or disciplinary issues.” Schweisthal stated that during the meeting Todd
attempted to discuss with Scott “a letter she had sent to Renal Network 11 on DaVita stationery
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blaming . . . Unit Secretary Kris Clark for the facility’s failure to provide certain information to the
Network in a timely manner.” Todd also attempted to bring up a memo by Scott on the same
subject. Todd “tried to explain” to Scott that “she should have spoken to him first [about these
matters], that she had violated the proper chain of command, and that her actions had been
unacceptably disrespectful to a co-worker.”
According to Schweisthal, “Clark knocked on the door with a question for Mr. Todd, and Mr.
Todd asked her to join the meeting. Unfortunately, the meeting then became even more
acrimonious.” Schweisthal stated that “Scott accused Ms. Clark of lying,” and Todd admonished
her for making an offensive comment to a co-worker. In Schweisthal’s telling “Scott then said,
‘That’s it, I’m done.’ Mr. Todd responded that ‘we aren’t finished.’” Scott began to leave and “said
that she was going to file a grievance and a lawsuit,” according to Schweisthal. Scott then said “I’m
ill, I’m going home.” According to Schweisthal:
Mr. Todd clearly told Ms. Scott that if she left before he was finished with what he
had to say to her, he would consider her to have abandoned her job. Ms. Scott left
the facility anyway. Mr. Todd repeated this two more times as he followed her down
the hallway to her office. I followed them down the hallway. She closed the door in
his face. She came out approximately ten minutes later and left the building.
Just before leaving, according to Schweisthal’s contemporaneous, handwritten account of the
incident, Scott “told a teammate she was leaving for lunch.”
According to the declaration of Clark, she was present at the February 5 meeting involving
Todd, Scott, and Schweisthal. Clark stated that the “meeting was, in part, about a letter Ms. Scott
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had written to Renal Network 11 about missing documentation for which she blamed me. . . . [Scott]
called me a liar.” According to Clark, Scott denied calling Clark a liar, but was contradicted by
Todd, Schweisthal, and Clark, who each “said Yes you did,” according to Clark’s contemporaneous,
handwritten account of the event. Scott then announced, “That’s it, I’m done.” Before Scott left
“Scott announced that she was going to lunch.”
Scott’s account of the February 5 meeting disagrees with the accounts of Todd, Schweisthal,
and Clark in several of its details. Scott stated that Todd called her into a meeting to discuss
delegating back to the secretaries some of the workload that had shifted to others. According to
Scott, she was “getting ready to leave for the day” because she was ill. Scott “said I was going to
be leaving early, and basically I was getting ready to leave,” but Todd “came in and said, well, I’d
like you just to take a minute, you know, would you grab your coffee or whatever, it won’t take long,
I want to talk to you.” Scott in her deposition related that Schweisthal was already in the meeting
room when Scott and Todd arrived, and that Clark arrived before the meeting began.
In Scott’s recollection, the meeting was “short-lived.” Todd became “abusive” and the others
shot “glances towards each other, kind of smiling and snickering” in a manner that Scott disliked.
Todd told Scott that she “wasn’t a team player.” Scott in her deposition attributed her lack of “team
player” status in Todd’s eyes not to her complaints in the Renal Network letter but to her “resisting,
you know, taking on all of these responsibilities, and you know, for clerical tasks and the fact that
I was trying to move forward to allow the secretaries to take these secretarial responsibilities back,
that that somehow I was not a team player . . . .”
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Scott responded by saying, “you know, Geraldo, I’m sorry, you know I’m sick, I’m leaving
and that’s it, you know.” She also said, “I’m sick, I’m going home, I have the right to go home, and
I am not going to be—I’m not going to sit here and be abused by you and I got up and left.”
According to Scott, Todd followed her while screaming. Scott told Todd that she would “take a brief
lunch hour and I will come back, you know, but I have to go to the doctor.” Scott said in her
deposition that she did not remember whether Todd told her that she would be fired for “job
abandonment” if she left without permission. Later in her deposition, Scott agreed with opposing
counsel’s question that Todd told her “that if you left, he would consider it an act of termination,”
with the following response, “Yeah, but I didn’t leave.” When asked by opposing counsel whether
she left, she said, “No. I just left for my lunch hour, which is what he told me to do, and come back,
which is what I did.”
According to Scott, she left the clinic and went to Coney Island and then came back to the
clinic about twenty minutes later. She claims that she wrote Todd a note telling him how to reach
her and informing Todd that she “was going to my doctor’s and that’s what I did.” Scott said in her
deposition that she missed work for the remainder of February 5 and the full day on February 6,
calling in sick, but had no idea that she had been terminated on February 5. “I just continued to call
in sick,” she said. DaVita co-workers informed Scott via telephone that her termination had been
announced and that the company website listed her position as vacant. Scott remarked in her
deposition that her memory of the events surrounding the February 5 meeting is “kind of muddled.”
In a letter dated February 5, 2004 and sent to Scott’s address, Todd terminated Scott’s
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employment with the clinic. The letter reads: “This letter serves as official notification of your
termination from DaVita North Oakland Dialysis facility effective immediately. The reasons cited
for your termination are the result of unprofessional conduct resulting in job abandonment on your
behalf.”
Todd, in his deposition, testified, “Once I made the decision to terminate Deborah Scott, I
conferred with our People Service Manager, my manager, the legal department in DaVita just for
clarification. . . .” In his deposition, Konal explained that he, Todd, Nixon, and Cooper discussed
the proper response to Scott’s decision to walk off the job. Everyone agreed that Scott could be fired
for her conduct, and Nixon recommended that she be terminated. According to Konal, Todd made
the ultimate decision to terminate Scott.
Company records show that Konal, Nixon, and DaVita Vice President Greg Hartman
administratively approved Scott’s termination for payroll purposes. Todd created a termination
report explaining Scott’s termination as follows: “[a]bandoned job, walked out during performance
management plan discussion.” Konal stated in his deposition that “job abandonment” means
“[l]eaving the facility without permission.” Konal also implied that the clinic has never fired any
employee other than Scott for “job abandonment.” Nixon said in her deposition that the clinic has
no policy pertaining to “job abandonment.”
Scott filed this suit following her termination. Her complaint set forth three counts, each
alleging retaliatory discharge. Scott claimed in the complaint that by retaliating against her,
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defendants violated (1) Michigan’s Whistleblowers’ Protection Act, Mich. Comp. Laws § 15.361
et seq.; (2) Michigan public policy; and (3) Michigan’s Elliott-Larsen Civil Rights Act (ELCRA),
Mich. Comp. Laws § 37.2101 et seq.
The district court granted summary judgment in favor of defendants and dismissed the case.
Regarding Scott’s whistleblower claim, the district court observed that the Whistleblowers’
Protection Act (WPA) forbids employers from retaliating against employees for reporting violations
of law to a public body. Scott alleged that DaVita fired her in retaliation for reporting DaVita’s
inadequate staffing, among other problems, to State authorities. The district court held that Scott’s
whistleblower claim should be rejected because she had failed to produce evidence tending to prove
a causal connection between her termination and her complaints to the State. Scott had merely
shown that she was terminated after her complaints, not because of them, which is insufficient to
raise a genuine dispute over causation.
The district court held that Scott’s public policy-based claim could not proceed because the
WPA is the exclusive cause of action governing employer retaliation against employees for their
reports of legal violations to public bodies. Reasoning that Scott’s exclusive cause of action lies
with the WPA, the district court held that she may not bring a public policy-based action grounded
in the Michigan Public Health Code.
Regarding Scott’s ELCRA claim, the district court held that Scott “cannot establish a prima
facie case of retaliation under” ELCRA “and thus her retaliation claims must be dismissed.” In
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particular, Scott had failed to establish a causal connection between Scott’s complaints of racial
discrimination and her termination. Scott’s whole argument for such causation, the district court
observed, “relied solely on the proximity in time between her November 2003, December 2003, and
January 2004 complaints about possible racial discrimination and her February 5, 2004 discharge.”
Reasoning that time-order, without more, is insufficient to create a genuine dispute over causation,
the district court dismissed the case.
This appeal followed. Scott does not appeal the dismissal of her WPA claim. Scott
challenges only the dismissal of the public policy and ELCRA claims. With respect to the public
policy claim, in this appeal Scott challenges its dismissal only to the extent that the claim is based
on her internal complaints to her DaVita superiors.
II.
“This court reviews the grant of summary judgment de novo.” Reeves v. Swift Transp. Co.,
Inc., 446 F.3d 637, 640 (6th Cir. 2006). “The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A.
The district court properly dismissed Scott’s claim for retaliatory discharge in violation of
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Michigan public policy because no law or policy tells Michigan employers that they must not
retaliate against employees who report legal violations to their supervisors.
This court’s unpublished opinion in Cushman-Lagerstrom v. Citizens Insurance Co. of
America, 72 Fed. Appx. 322 (6th Cir. 2003), is on point in all respects and is persuasive. In
Cushman-Lagerstrom, this court rejected the plaintiff’s argument—advanced here by Scott—that
it is generally contrary to Michigan public policy to fire an employee for reporting violations of the
law to superiors. Compare id. at 328, with Appellant’s Br. at 24-26.
The Cushman-Lagerstrom court assumed that the plaintiff had reported actual or impending
Michigan Insurance Code violations but nevertheless was “not persuaded that Michigan has provided
a ‘public policy’ cause of action for an employee who is discharged for reporting violations of law
to a superior.” Id. The court supplied two reasons for this conclusion, both of which apply to Scott’s
analogous claim.
First, the Cushman-Lagerstrom court noted that the reporting of Michigan Insurance Code
violations to one’s superiors at work was not listed among the recognized grounds for public policy
retaliatory discharge claims. Id. at 328-29. Claims of retaliatory discharge based on Michigan
public policy may rely on the following three grounds only:
(1) the employee is discharged in violation of an explicit legislative statement
prohibiting discharge of employees who act in accordance with a statutory right or
duty, (2) the employee is discharged for the failure or refusal to violate the law in the
course of employment, [or] (3) the employee is discharged for exercising a right
conferred by a well-established legislative enactment.
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Id. at 328 (quoting Edelberg v. Leco Corp., 599 N.W.2d 785, 786-87 (Mich. Ct. App. 1999)). The
Cushman-Lagerstrom court noted that the factual situation presented in that case simply did not
match any of these three public policy grounds for a claim. Id. That is true here as well. The federal
regulations cited by Scott in her brief govern dialysis clinics’ staffing and sanitation levels; they do
not explicitly create a duty or right of employees to report violations to their superiors. See
42 C.F.R. § 405.2162(b)(3) and § 405.2163(d). Just as the Cushman-Lagerstrom plaintiff’s reports
of Insurance Code violations did not match the public policy grounds for a retaliatory discharge
claim, neither do Scott’s reports match them. Michigan public policy does not protect Scott’s right
to make such complaints to her employer.
Second, Cushman-Lagerstrom noted that no “controlling or persuasive Michigan case law”
had “extended the public policy exception [to at-will employment] to discharges in retaliation for
reporting violations of law to superiors” in general. 72 Fed. Appx. at 328-29. That remains true
today and requires affirmance of the district court’s judgment.
In drawing this conclusion, the Cushman-Lagerstrom court held inapplicable the two cases
on which Scott principally relies. Those two cases are Watassek v. Michigan Department of Mental
Health, 372 N.W.2d 617 (Mich. Ct. App. 1985), and Meury v. Connie Kalitta Services/American
International Airways, Inc., No. 97-1877, 1999 U.S. App. LEXIS 21188 (6th Cir. May 20, 1999).
Appellant’s Br. at 24 (citing Watassek and Meury). Cushman-Lagerstrom demonstrated that neither
Watassek nor Meury is persuasive.
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Watassek held that Michigan common law prior to the WPA’s passage created a public
policy cause of action for retaliatory discharge where an employer fires an employee for reporting
legal violations to supervisors. See 372 N.W.2d at 621. Meury cursorily adopted the position of
Watassek in this regard as an alternative ground for its decision that an employee who had been fired
for reporting violations of federal aviation regulations had a public policy-based cause of action for
retaliatory discharge under Michigan law. 1999 U.S. App. LEXIS 21188, at *4-*5.
Cushman-Lagerstrom demonstrated that Watassek is unpersuasive and had been essentially
rejected in all relevant respects in subsequent Michigan court cases.
The Watassek court reasoned that the 1981 passage of the Whistleblowers’ Protection
Act (“WPA”) after the plaintiff’s 1976 termination meant that there must have
existed prior thereto a common law counterpart to the WPA: consequently, it held
that a public policy claim for discharge in retaliation for reporting violations to a
superior (i.e., a common law counterpart to the WPA) was available in 1976. Id. at
620. The court was silent as to whether such a common law claim survived the
WPA’s passage, which essentially limited the reach of its holding to discharges
occurring before the WPA’s passage in 1981. Plaintiff’s discharge, on the other
hand, occurred in 2000, well after the passage of the WPA. Therefore, Watassek is
not controlling. . . .
We find more persuasive Covell v. Spengler, 141 Mich. App. 76, 366 N.W.2d 76,
79-80 (Mich. Ct. App. 1985) (holding that no common-law cause of action for a
discharge in retaliation for reporting violations existed before passage of the WPA,
which thereafter became the exclusive remedy for an employee whose employment
is terminated in retaliation for reporting an employer’s violation of the law), as well
as Shuttleworth v. Riverside Osteopathic Hosp., 191 Mich. App. 25, 477 N.W.2d
453, 454-55 (Mich. Ct. App. 1991) (declining to find a common law counterpart to
the WPA). Indeed, Shuttleworth specifically criticized the Watassek court’s
approach, which it viewed as “nothing more than an attempt to give preenactment
effect to a statutory right by fabricating a supposed preexisting common-law right
wholly from the provisions of the subsequently enacted statute.” Id. at 455. We
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therefore hold that Michigan does not recognize a common law cause of action for
an employee who has been discharged for reporting violations of law to a superior.
72 Fed. Appx. at 329-30 (footnote omitted). Cushman-Lagerstrom further held that Meury’s cursory
alternative holding was also unpersuasive insofar as it adopted the view of Watassek. Id. at 329.
Cushman-Lagerstrom thus held that “Michigan does not recognize a common law cause of action
for an employee who has been discharged for reporting violations of law to a superior” in general.
Id. at 330.
Scott’s public policy claim cannot be distinguished from Cushman-Lagerstrom. Scott, like
the plaintiff there, cites the unpersuasive cases of Watassek and Meury, and no others, to support her
assertion that her cause of action is cognizable. Appellant’s Br. at 24. Just as the
Cushman-Lagerstrom plaintiff had brought no cognizable public policy claim for retaliatory
discharge, neither has Scott done so.
Therefore, the district court did not err when it dismissed Scott’s Michigan public policy
claim based on her internal complaints.
B.
Scott’s ELCRA claim presents no genuinely disputed issue of material fact because Scott has
not supplied sufficient Rule 56 evidence to demonstrate a causal connection between her racial
discrimination complaints and her termination, as is required to establish a prima facie case under
ELCRA. See Barrett v. Kirtland Cmty. Coll., 628 N.W.2d 63, 70 (Mich. Ct. App. 2001).
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The elements of a prima facie case under ELCRA are as follows:
(1) that the plaintiff engaged in a protected activity, (2) that this was known by the
defendant, (3) that the defendant took an employment action adverse to the plaintiff,
and (4) that there was a causal connection between the protected activity and the
adverse employment action.
Id. Arguably, the first and second elements are met, respectively, because Scott complained about
alleged illegal racial discrimination, and because Konal and Nixon (both of whom approved Todd’s
termination of Scott) knew about Scott’s complaints. The third element is met because Scott’s
termination qualifies as an adverse employment action.
Even assuming, however, that the first, second, and third prima facie elements are met, Scott
has not sufficiently established the fourth element, i.e., a causal connection between her termination
and her discrimination complaints. The Michigan Supreme Court’s recent opinion in Garg v.
Macomb County Community Mental Health Services is analogous to this case and supports the
conclusion that Scott has not adequately established the required causal connection between her
termination and her racial discrimination complaints. See 696 N.W.2d 646, 660-61 (Mich. 2005).
In Garg, the Michigan Supreme Court held that the employee plaintiff had supplied
insufficient evidence to establish a causal connection between her supervisor’s denial of a promotion
request and her filing of an internal grievance. Id. The Garg plaintiff had filed a grievance
complaining that she had suffered discrimination in employment on the basis of her national origin.
Id. at 655. The Garg plaintiff’s supervisor, Kent Cathcart, received the grievance, which was denied
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without investigation. Id. at 651. Cathcart subsequently denied one of the Garg plaintiff’s requests
for promotion. Id. at 651. The plaintiff filed other promotion requests involving four other
supervisors. Id. at 651, 660. These other promotion requests were denied as well. Id. These other
four supervisors “had no knowledge of plaintiff’s grievance.” Id.
The Michigan Supreme Court held on these facts that “a juror could not reasonably conclude
that the reasons behind the denials within [the place of employment] were related to the grievance,”
because no evidence “suggest[ed] any distinction between the promotion denial that occurred while
plaintiff was in Cathcart’s chain of command and those denials involving supervisors who had no
knowledge of plaintiff’s grievance.” Id. at 660. The supervisors who lacked knowledge of the Garg
plaintiff’s grievance consequently “could not have ‘retaliated’ against plaintiff for its filing.” Id.
Moreover, the Garg plaintiff’s qualifications had not “changed in any meaningful way in the time
between the [promotion] denial by Cathcart and the denials by the other supervisors.” Id.
Since the Garg plaintiff had been treated the same by all supervisors, and her qualifications
had not materially changed, the plaintiff had only one basis for asserting that Cathcart had retaliated
against her for filing a grievance: time-order, i.e., the grievance preceded Cathcart’s promotion
denial. See id. at 660-61. But time-order is insufficient as a matter of law to establish a causal
connection between an adverse employment action and protected activity. Id. Therefore, no juror
could reasonably find that Cathcart’s promotion denials were causally related to the grievance. Id.
at 660.
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Garg controls the causation issue in this case. Here, Scott’s termination involved three
supervisors (Konal, Nixon, and Todd) and one company lawyer (Cooper), all of whom agreed that
Scott could be fired for job abandonment but only two of whom knew about Scott’s racial
discrimination complaints. Konal and Nixon alone knew about Scott’s complaints. Similarly, in
Garg five supervisors denied the plaintiff’s requests for promotion but only one, Cathcart, knew
about the plaintiff’s grievance. Just as no evidence in Garg suggested any distinction between the
promotion denials by Cathcart and the four other supervisors, here no evidence suggests such a
distinction between Konal’s and Nixon’s position favoring termination and Todd’s and Cooper’s
identical inclination. Just as the Garg supervisors all treated the plaintiff the same way regardless
of whether they knew about her grievance, here Konal, Nixon, Todd, and Cooper all agreed that
Scott could be fired for job abandonment regardless of whether they knew about her racial
discrimination complaints. In Garg, no juror could reasonably find that Cathcart’s denial of
promotion had anything to do with the grievance. Likewise, in this case Todd’s and Cooper’s
agreement that Scott could be fired, despite not knowing about her complaints, prevents any
reasonable inference of a causal connection between Scott’s termination and her complaints.
One might argue that Garg is distinguishable from this case by pointing out that in Garg
successive supervisors denied promotions apparently without Cathcart’s input, while in this case
Scott’s superiors consulted each other. Konal and Nixon, the argument could be made, might have
retaliated against Scott for her complaints by convincing Todd and Cooper to fire Scott. But such
an argument would be unpersuasive for two reasons. First, Scott has not argued in her brief that
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No. 05-2151
Scott v. Total Renal Care, Inc., et al.
Konal or Nixon compromised Todd’s or Cooper’s independent judgment. Nor has Scott produced
any Rule 56 evidence that would support such an argument, such as elicited deposition testimony
from Todd or Cooper that he was ambivalent about firing Scott before coming under pressure from
Konal or Nixon.
Second, Todd’s preliminary decision to fire Scott must have been made independent of any
influence from Konal or Nixon because Todd warned Scott that she could be terminated before he
consulted Konal and Nixon. The record indicates, therefore, that Todd arrived at his initial decision
to terminate Scott just as independently as the four Garg supervisors who denied the plaintiff’s
promotion requests arrived at their decisions. And the undisputed testimony of Konal stated that
Todd also made the ultimate decision to terminate Scott. On this record, Garg cannot be
distinguished from this case on the basis that Konal or Nixon unduly influenced Todd or Cooper.
Garg thus supports the conclusion that Scott has not produced sufficient Rule 56 evidence of
causation to survive summary judgment. Scott has not established a prima facie case for retaliation
under ELCRA.
III.
For the foregoing reasons, the district court’s judgment is affirmed.
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