Sosby v. Miller Brewing Co.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0860n.06
Filed: November 22, 2006
No. 05-4629
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KAREN SOSBY, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
MILLER BREWING COMPANY, ) OPINION
)
Defendant-Appellee. )
BEFORE: KEITH and McKEAGUE, Circuit Judges; and CLELAND, District Judge.*
CLELAND, District Judge. After Defendant-Appellee Miller Brewing Company (“Miller”)
terminated Plaintiff-Appellant Karen Sosby, she filed a complaint against Miller, alleging sex, race,
and disability discrimination, retaliation, and failure to accommodate under Ohio Revised Code §
4112, race discrimination under 42 U.S.C. § 1981, wrongful discharge in violation of Ohio public
policy, and an entitlement claim under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615.
The district court granted Miller’s motion for summary judgment on all of Sosby’s claims. For the
reasons set forth below, we affirm.
I.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-4629
Sosby v. Miller Brewing Co.
Miller employed Plaintiff-Appellant Karen Sosby as a forklift driver in its Ohio brewery. In
May 1998, Sosby injured her back in a forklift accident, but did not miss any work as a result of her
injury. Over a year later, on July 8, 1999, Sosby’s physician, Dr. Gula, prohibited Plaintiff from
performing any work until further notice. Dr. Gula allowed Sosby to return to work on November
1, 1999. On the first day Sosby returned to work, she claimed she injured her foot. Sosby spoke to
Shari Moler, the plant’s workers’ compensation manager, and claimed she returned to work too
early. After Moler explained that Sosby was released by her own physician, Sosby completed her
shift, and returned to work the next day. On November 8, 1999, Sosby saw Dr. Gula, who restricted
her from working again until further notice.
Sosby was able to return to work on January 3, 2000 without restrictions. Plaintiff claims
she re-aggravated her foot injury in February 2000. On March 3, 2000, Plaintiff allegedly injured
her foot a third time as she got down from her forklift to help a worker. Sosby characterized this
third injury as “much worse” than her previous ones. Moler claims she attempted to contact Sosby
for more information, but was unable to reach her until March 10, 2000. During that conversation,
Moler requested that Sosby come in for an evaluation by the company doctor, but Sosby refused
because she claimed that the FMLA does not require her to submit to an examination by her
employer’s company doctor.
Miller was suspicious of Sosby’s alleged injuries. As a result, Miller hired Sur-Tech
Investigations (“Sur-Tech”) to conduct surveillance of Sosby’s home from March 10 to 14, 2000,
while Sosby was allegedly on medical leave. On March 22, 2000, Moler rejected Plaintiff’s workers’
compensation claim for her March 3, 2000 injury because Sur-Tech reported that Sosby was not at
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home during this first surveillance period. Sosby contends that she was either at home or at the
hospital the entire time. On March 29, 2000, Sosby filed an Ohio Civil Rights Commission
(“OCRC”) charge challenging this denial, which she withdrew in May 2000. On April 6, 2000,
Sosby submitted to an independent medical examination with Dr. Randolph at Miller’s request.
According to Miller, the results of Dr. Randolph’s examination were inconsistent with Sosby’s
description of her accidents.
Miller contends that because the results of the first surveillance and this medical examination
bolstered its suspicions, it ordered Sur-Tech to conduct additional surveillance. Sur-Tech conducted
videotape surveillance of Sosby’s home on May 6, 2000, and observed Sosby working in her yard
for three hours without difficulty. Sosby was still on medical leave at that time, and did not return
to work until June 5, 2000 because Dr. Gula determined that she was “continuously and totally
disabled (unable to perform any and all job duties).”
The parties attended an August 8, 2000 workers’ compensation hearing (“Hearing”) regarding
Sosby’s March 3, 2000 injury. At the Hearing, Sosby gave the following statements under oath: she
was in bed until she went back to work on June 5, 2000, and during that time she did not do any
housework save one attempt to do laundry. Miller specifically asked Sosby if she did any yard work
during this time, and she answered “No. No.” When the Hearing concluded, Miller’s attorney
informed Sosby that he had a tape of her doing yard work on May 6, 2000. Plaintiff did not explain
this inconsistency. Following the Hearing, Moler discussed Miller’s response with Steve Mellott,
Miller’s Human Resources Manager, and Tom Mobley, Miller’s Employee Relations Manager.
Mellott determined that Miller would pursue criminal charges against Sosby for workers’
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compensation fraud. Miller would then use Sosby’s conviction to terminate her employment.
Mellott alleges that due to the duration and uncertainty of litigation, he directed Mobley to begin an
internal investigation instead.
Sosby filed a retaliation claim on August 9, 2000, alleging that Miller conducted the
surveillance in retaliation for her initial OCRC charge. On August 24, 2000, Plaintiff requested that
the OCRC reconsider her withdrawn March 29, 2000 OCRC charge. The OCRC denied her request.
In August 2000, Sosby also filed a FMLA complaint with the Department of Labor. Sosby was not
successful in any of these charges.
On August 31, 2000, Mobley met with Sosby and her union representative. During the
meeting, Sosby refused to explain the inconsistency between her sworn statement and the videotaped
evidence. Sosby saw the tape when the parties met again on September 13, 2000. Sosby again
declined to comment, despite Mobley’s warning that Miller was considering termination if Sosby
failed to explain her actions.1 During an October 5, 2000 mediation, Sosby refused Miller’s offer
to resign in return for Miller’s agreement to refrain from challenging her benefits. Miller terminated
Sosby on October 9, 2000, citing her false statement under oath at the Hearing as its basis for her
dismissal.
Sosby filed her complaint in the Court of Common Pleas, Butler County, Ohio on October
9, 2002. The complaint alleged (1) race discrimination, sex discrimination and retaliation under
1
In her appellate brief, Sosby alleges for the first time that her yard work was consistent with
her treatment schedule that required her to stand for increasingly longer periods of time to become
accustomed to her foot braces.
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Ohio Revised Code § 4112.01; (2) disability discrimination and failure to accommodate under Ohio
Revised Code § 4112.02(A); (3) race discrimination under 42 U.S.C. § 1981; (4) wrongful discharge
in violation of Ohio public policy; and (5) a FMLA entitlement claim. Miller removed the case to
the Southern District of Ohio. In response to Miller’s motion for summary judgment, Sosby
withdrew a number of her claims, and only contested her § 4112.01 retaliation claim, her public
policy claims and her FMLA claim. The district court granted Miller’s motion for summary
judgment on these remaining claims, and Sosby appeals the district court’s order. Although Sosby
was represented by counsel at the district court level, she is proceeding pro se on appeal.
II.
We review a district court’s decision to grant a motion for summary judgment de novo. Birch
v. Cuyahoga County Probate Court, 392 F.3d 151, 157 (6th Cir. 2004) (citing Cockrel v. Shelby
County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001)). Summary judgment is proper “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). When deciding a motion for
summary judgment, the evidence must be viewed in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Yet the “mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
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III.
The district court granted Miller’s motion for summary judgment on Sosby’s retaliation
claim. Under Ohio law, an employer is prohibited from retaliating against an employee who “has
made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or
hearing” related to the opposition of unlawful discriminatory practices defined in the statute. Ohio
Rev. Code § 4112.02(I).
Because Sosby does not allege direct evidence of retaliation, she must make out a claim
using circumstantial evidence under the burden-shifting analysis espoused in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Plumbers & Steamfitters Joint Apprenticeship Comm. v.
Ohio Civil Rights Comm’n, 421 N.E.2d 128 (Ohio 1981) (finding Title VII case law applicable to
cases involving alleged violations of Ohio Revised Code § 4112); see also Kirkland v. St. Elizabeth
Hosp. Med. Ctr., 34 F. App’x 174, 177 n.2 (6th Cir. 2002) (unpublished) (applying Title VII case
law to claims under Ohio Revised Code § 4112). Under McDonnell Douglas, a plaintiff must
establish a prima facie case by showing that (1) she engaged in protected activity; (2) the employer
knew of her protected activity; (3) she suffered an adverse employment action;2 and (4) there was
a causal connection between the protected activity and the adverse employment action. Wrenn v.
Gould, 808 F.2d 493, 500 (6th Cir. 1987). If a plaintiff establishes a prima facie case, the burden
shifts to the employer to demonstrate a legitimate, non-retaliatory reason for the adverse employment
2
Sosby has supplemented her appellate brief with a recent Supreme Court case, Burlington
Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405 (2006). While the Burlington Court did
clarify what constitutes an adverse employment action, this change is irrelevant to the instant case
because Miller does not deny that Sosby’s termination was an adverse employment action.
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action. Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1082 (6th Cir. 1994) (quoting
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the employer meets its
burden, the plaintiff must then show that the employer’s stated reasons are a pretext for retaliation.
Id.
The district court first determined that Sosby failed to establish a prima facie case of
retaliation because her only evidence of a link between her protected activity and the adverse
employment action was the fact that her termination occurred soon after her second OCRC charge.
Sosby does not contest the district court’s finding on appeal, and has therefore waived the issue. See
Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989) (declining to consider issues not raised in
appellant's opening brief); Wright v. Holbrook, 794 F.2d 1152, 1157 (6th Cir. 1986) (finding that
appellant waived an issue when he failed to raise it in his opening brief). Nevertheless, we also find
that the district court did not err in finding that Sosby failed to establish a prima facie case of
retaliation as a matter of law.
To establish a causal connection between the protected activity and adverse employment
action, a plaintiff must present evidence “‘sufficient to raise [an] inference that her protected activity
was the likely reason for the adverse action.’” Zanders v. Nat’l R.R. Passenger Corp., 898 F.2d
1127, 1135 (6th Cir. 1990) (quoting Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)).
In her response to Miller’s motion for summary judgment, Sosby relied on the fact that her
termination occurred soon after her OCRC charge. The district court found this temporal proximity,
standing alone, insufficient to establish a causal connection. Indeed, Sosby presented no precedent
where a court in this circuit found temporal proximity alone sufficient to satisfy this element. Even
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the cases Sosby cited below specifically stated that mere temporal proximity was insufficient. See
Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000) (refusing to find that temporal
proximity was sufficient in itself to establish a causal connection, and declining to decide “how
much evidence in addition to temporal proximity would be required”); McNett v. Harden Comm.
Fed. Credit Union, 118 F. App’x 960, 965 (6th Cir. 2004) (unpublished) (“[T]he employer’s
knowledge of the protected activity coupled with an adverse action occurring close in time can create
an inference of causation where the particular circumstances strengthen the inference of causation.”)
(emphasis added) (citation omitted). Here, Sosby offers no additional circumstances to support a
finding of causation. Therefore, Sosby has failed to present a prima facie case of retaliation.
Sosby also fails to demonstrate that Miller’s stated reason for her dismissal, Sosby’s lie while
under oath at the Hearing, is a pretext for discrimination. A plaintiff can establish pretext by
showing “‘(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not
actually motivate the discharge, or (3) that they were insufficient to motivate discharge.’” Manzer,
29 F.3d at 1084 (quoting McNabola v. Chicago Transit Auth., 10 F.3d 501, 513 (7th Cir. 1993)).
On appeal, Sosby claims that her false testimony at the Hearing did not actually motivate Miller to
terminate her employment. She attempts to support her claim of pretext in a number of ways: (1)
by arguing that Miller was mistaken and she was either at home or attending medical appointments
during Miller’s initial surveillance; (2) by claiming that Miller knew Sosby’s yard work was part of
her schedule of recovery, yet still tried to set her up for workers’ compensation fraud by putting her
under surveillance and questioning her at the Hearing; (3) by attempting to justify her false
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testimony;3 and (4) by questioning the need to wait until October 2000 to terminate her if the
decision was based on her August 2000 testimony.
Sosby’s argument that she was following her doctor’s orders during the two surveillance
periods fails to establish pretext because Miller did not fire her based on her conduct during the
surveillance, but rather based on the false statements she made under oath at the Hearing. Sosby’s
attempts to justify her false testimony are irrelevant because they do not negate the fact that Miller
legitimately perceived her statements under oath to be intentionally misleading, and could have
properly fired her on that basis.4 Furthermore, Sosby’s allegation that Miller conspired to set her up
and accuse her of workers’ compensation fraud is not supported by any evidence and does not raise
a genuine issue of material fact regarding pretext. Finally, while a long period of time between the
basis for termination and the termination itself may call into question an employer’s actual
motivations for the discharge, here there was only one month between the two events. Furthermore,
Miller has demonstrated that it waited to fire Sosby until October because it was looking into the
possibility of criminal prosecution, and then pursued conflict resolution and mediation before
making the decision to fire Sosby. As a result, Sosby has both failed to establish a prima facie case
3
Sosby attempts to justify the false statements she made under oath by placing the blame on
Miller, arguing that (1) Moler’s lies at the Hearing put her in shock; (2) the question was not asked
clearly; (3) she should not be expected to remember what she did months before; and (4) Miller’s
allegedly false pretense for the surveillance enables her to escape responsibility for her statements.
Plaintiff also claims that her attorney and her union advised her not to explain the inconsistencies.
4
Sosby never claims that she did not make a false statement at the Hearing or that an
employee’s false statement under oath is an improper basis for termination.
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of retaliation and failed to demonstrate Miller’s justification for her termination was a pretext for
retaliation.
IV.
The district court also granted Miller’s motion for summary judgment on Sosby’s public
policy claims. On appeal, Sosby neither contests the district court’s ruling on this issue, nor does
she mention public policy in her brief. Sosby has therefore abandoned this issue. See Priddy, 883
F.2d at 446.
Even if Sosby had raised this issue on appeal, Sosby’s public policy claims were properly
subject to summary judgment for the reasons stated in the district court’s opinion. Sosby’s first
public policy claim, based on Ohio Revised Code § 4112.02(I), was properly dismissed as a matter
of law because Ohio courts have held that “[a] claim for wrongful discharge in violation of public
policy embodied in [a] statute prohibiting discriminatory practices will fail if the underlying
discrimination claim fails.” Desanzo v. Titanium Metals Corp., 351 F. Supp. 2d 769, 782-83 (S.D.
Ohio 2005) (citations omitted). Because the district court properly granted Miller’s motion for
summary judgment on Sosby’s retaliation claim, her public policy claim is subject to dismissal on
that basis.
Sosby also failed to raise a genuine issue of material fact on her public policy claim based
on workplace safety. Although Sosby claimed that she was terminated in retaliation for her
complaints regarding dangerous workplace conditions, the uncontroverted evidence demonstrates
that two of her complaints were made years before her termination. Furthermore, while Sosby does
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cite one complaint she made weeks before she was terminated, she has failed to contest Miller’s
evidence that it both responded positively to her complaints and retained other employees who made
the same complaints as Sosby. Therefore, the district court properly granted Miller’s motion for
summary judgment on Sosby’s public policy claims.
V.
In her brief, Sosby identifies a number of events to support her claim that Miller interfered
with her FMLA rights. Sosby alleges that Miller did so by (1) refusing to recognize that her March
2000 leave was appropriate medical leave under the FMLA; (2) misrepresenting to the Department
of Labor Sosby’s medical condition to undermine her credibility and jeopardize her FMLA claim;
(3) claiming that Sosby lied about her injuries to go on vacation with family members because she
did not have any vacation time left,5 which constitutes workers’ compensation fraud, to undermine
her credibility and jeopardize her FMLA claim; (4) failing to cover the cost of her FMLA-qualified
podiatrist care; and (5) conducting the May 6, 2000 surveillance, without probable cause, to stalk
her and threaten her with prosecution for workers’ compensation fraud in retaliation for her two-
week medical leave and her FMLA complaint. Claims brought under the FMLA are subject to a
two-year statute of limitations. 29 U.S.C. § 2617(c)(1). Sosby filed her complaint on October 9,
2002, exactly two years after her termination. Because each allegedly improper act mentioned above
occurred prior to Sosby’s termination, these FMLA claims are time-barred.
5
Sosby contends that she had 125 hours of vacation time left, and therefore had no motive
to lie about her medical condition to get time off work for a vacation.
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Under the two-year statute of limitations for FMLA claims, Sosby’s termination is the only
timely event that she raises in her appellate brief. Sosby contends that Miller terminated her in
retaliation for Sosby’s decision to exercise her rights under the FMLA. Sosby, however, first raised
her FMLA retaliation claim in her response to Miller’s motion for summary judgment.6 The district
court found that allowing Sosby to amend her complaint to include a claim of FMLA retaliation at
that late date would significantly prejudice Miller, and declined to do so on that basis. In her appeal,
Sosby does not contest the district court’s decision to deny her amendment. Therefore, Sosby has
waived her right to argue her FMLA retaliation claim on appeal. See Priddy, 883 F.2d at 446.
Even if Sosby had properly appealed the district court’s decision, the district court did not
abuse its discretion in denying her amendment. In deciding whether to permit a plaintiff to amend,
a district court can consider “undue ‘delay in filing, lack of notice to the opposing party, bad faith
by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice
to the opposing party, and futility of amendment.’” General Elec. Co. v. Sargent & Lundy, 916 F.2d
1119, 1130 (6th Cir. 1990) (quoting Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479, 484 (6th Cir.
1973)). The district court found that Sosby’s attempt to add a FMLA retaliation claim at the
summary judgment stage of litigation constituted undue delay and would significantly prejudice
Miller. This decision is subject to an abuse of discretion standard of review. Leary v. Daeschner,
6
The Sixth Circuit has recognized that there are “two distinct theories for recovery under the
FMLA: (1) the ‘entitlement’ or ‘interference’ theory arising from 29 U.S.C. § 2615(a)(1); and (2)
the ‘retaliation’ or ‘discrimination’ theory arising from 29 U.S.C. § 2615(a)(2).” Hodge v. Honda
of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004). Because there are two distinct theories for
recovery under the FMLA, and Sosby clearly pleaded only the entitlement theory in her complaint,
we conclude that Sosby failed to plead a claim of FMLA retaliation in her complaint.
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349 F.3d 888, 904 (6th Cir. 2003) (citing Duggins v. Steak 'N Shake, Inc., 195 F.3d 828, 833 (6th
Cir. 1999)). Sosby’s unexplained failure to raise her FMLA retaliation claim until the summary
judgment phase of the litigation constitutes undue delay. See Wade v. Knoxville Utils. Bd., 259 F.3d
452, 459 (6th Cir. 2001).
While the district court did not make a detailed finding of prejudice, on appeal Miller
contends that because Sosby failed to raise a FMLA retaliation claim until after discovery had
concluded and Miller filed its motion for summary judgment, Miller conducted discovery and
prepared its defense solely on the entitlement theory. Accordingly, the amendment would have
necessarily delayed trial. “At least one Sixth Circuit decision has held that allowing amendment
after the close of discovery creates significant prejudice, and other Circuits agree.” Duggins, 195
F.3d at 834 (citations omitted). Because the defendants in Duggins, like Miller, had already filed
a motion for summary judgment, the Duggins Court found that allowing the amendment would
prejudice the defendants by denying them their “anticipated ‘closure.’” Id. Therefore, in this case
the district court did not abuse its discretion in denying Sosby’s attempt to add a claim of FMLA
retaliation in her response to Miller’s motion for summary judgment.7
VI.
In her appellate brief, Sosby lists a number of incidents to support her claim that Miller
discriminated against her on the basis of race and sex. Sosby also alleges that Miller discriminated
7
Accordingly, we need not review the district court’s finding that Sosby’s FMLA retaliation
claim was nonetheless subject to summary judgment.
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against her on the basis of her disability, and failed to accommodate her disability. In Sosby’s
response to Miller’s motion for summary judgment, however, she expressly withdrew her sex and
race discrimination claims. In her response, Sosby also unequivocally conceded that her disability
discrimination and failure to accommodate claims were subject to summary judgment because she
could not prove she was disabled. Sosby cannot now attempt to resurrect these arguments on appeal.
Because Sosby abandoned these claims, the district court did not consider them in its order, and we
are without jurisdiction to review them now. See 28 U.S.C. § 1291.
VII.
Sosby accuses Miller of fraud throughout her appellate brief. Sosby also argues that Miller
manipulated the workers’ compensation process, which violated her rights under the Freedom of
Information Act because she was not given information regarding her rights. We need not consider
the merits of Sosby’s largely unsupported allegations because Sosby failed to raise these claims
below. United States v. Crismon, 905 F.2d 966, 969 (6th Cir. 1990) (“[O]bjections that appear for
the first time on appeal are conclusively deemed to be waived, with the effect that we are deprived
of jurisdiction.”). Because Sosby has waived these claims, we lack jurisdiction to review them.
VIII.
For the foregoing reasons, we affirm the judgment of the district court.
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