Hatchett v. Health Care & Retirement Corp. of America

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0386n.06
Filed: June 1, 2006
No. 05-1790
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Brenda Hatchett, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
Health Care and Retirement Corporation of ) EASTERN DISTRICT OF MICHIGAN
America, an Ohio Corporation d/b/a )
Heartland Health Care Center - Dearborn )
Heights and also d/b/a HCR Manor Care, )
)
Defendant-Appellee. )
)
)
BEFORE: MERRITT, MARTIN, and McKEAGUE, Circuit Judges.
MERRITT, Circuit Judge. Brenda Hatchett, an African American female, appeals the
district court’s grant of summary judgment in favor of Defendant-Appellee Health Care and
Retirement Corporation of America, d/b/a Heartland Health Care Center - Dearborn Heights and
also d/b/a HCR Manor Care (“Heartland”) on her claims of racial discrimination and retaliation.
Hatchett alleges that Heartland violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and Michigan’s Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq., by:
(1) paying her less than similarly situated white employees; and (2) retaliating against her after she
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expressed complaints of racially discriminatory treatment. For the reasons that follow, we affirm
the judgment of the district court.
I.
Heartland is a skilled nursing facility located in Dearborn Heights, Michigan. Plaintiff
Brenda Hatchett, a registered nurse and an African American female, applied for employment at
Heartland on May 23, 2003. She applied for the position of nurse supervisor and stated on her
employment application that her salary expectation was negotiable. Myrtle Powell, Heartland’s
human resources manager and also an African American female, offered Hatchett the position of
midnight nurse manager at Heartland. Hatchett began her employment at Heartland on June 9, 2003,
as midnight nurse manager. Her base pay rate at the time was $27.25 per hour; she was also paid
an additional $2.00 per hour shift differential, bringing her total hourly pay rate to $29.25.
In early September 2003, Heartland hired Toni Morse, a Caucasian female, as the day shift
nurse manager in Heartland’s short-term rehabilitation unit. Morse’s resume reflected that she had
management experience at a skilled nursing facility prior to her employment at Heartland. Morse
was hired at a base pay rate of $29.50 per hour.
Also in early September 2003, Heartland hired Leorea Heard, an African-American female,
as the day shift nurse manager in Heartland’s long-term care unit. Heard did not have management
experience at a skilled nursing facility prior to her employment at Heartland. She was hired at a base
pay rate of $27.50 per hour.
On January 7, 2004, Powell inadvertently left a five-page document, referred to as the “wage
matrix,” on a copy machine by the administration office. The wage matrix summarized the market
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raises effective December 31, 2003, and listed the salaries of Heartland’s employees. Hatchett
claims that the wage matrix also contained handwritten notations of “C” and “B” beside various
employees’ names. She believes that these notations indicated the employee’s race as Caucasian
or Black. Hatchett discovered the wage matrix on the copy machine and made at least one copy of
it. Upon discovering the wage matrix, Hatchett highlighted certain names and brought it to the
attention of Jeff Harper, Heartland’s regional human resources manager; Kyle Fassett, Heartland’s
facility administrator; and Rebecca Mazzoni, Heartland’s administrative director of nursing.
Hatchett questioned Fassett about the pay disparities between employees and the notations on the
wage matrix. Fassett did not respond except to ask where Hatchett found the document.
As a result of Powell leaving the wage matrix on the copy machine and Hatchett making a
copy of the document, both employees were suspended from work without pay, pending further
investigation of the matter. On January 15, 2004, Hatchett received a written employee warning
notice stating that she had violated work rules because she “failed to secure sensitive or confidential
information found on copier. Copied confidential information w/o authorization. Mislead [sic]
administrator re: dispensation of confidential information.” (J.A. at 72.) Powell also received a
similar employee warning notice. (J.A. at 76.)
Linda Neumann, Heartland’s regional director of operations, conducted an investigation into
the alleged pay disparities. Fassett justified the pay disparities among the nurse managers by
explaining that: (1) the day shift nurse manager position in the short-term rehabilitation unit
involved more demanding responsibilities; (2) the day shift nurse manager positions had been more
difficult to fill; and (3) Morse had negotiated more effectively for a higher wage. Although
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Neumann accepted this explanation, she instructed Fassett to give raises to Hatchett and Heard to
compensate them at the same base pay rate as Morse. Neumann decided to raise Hatchett and
Heard’s salaries due to her concerns with instability in the nursing department and the potential for
union organization. Although Fassett objected to giving raises to Hatchett and Heard, he “did what
[his] boss instructed [him] to do” and “gave all the increases.” (J.A. at 184-86.)
During all relevant times, Heartland was in a period of transition to a more “hands on”
nursing model, which would allow for more licensed nurses to provide direct care and fewer
administrative positions. This transition, known as the “M²” business model or “Medicare nursing
model,” resulted in the Michigan Department of Consumer and Industry Services issuing Heartland
a license to increase the number of Medicare beds at Heartland from 68 to 103, an increase of more
than sixty percent of resident beds available for short-term rehabilitation patients. In order to
implement the M² business model, Fassett, Neumann, and Diana Dixon, Heartland’s administrative
director of nursing services, decided to eliminate the midnight nurse manager position and two day
shift desk nurse positions.
On January 27, 2004, Fassett issued a letter to Hatchett indicating that the position of
midnight nurse manager was being eliminated effective March 1, 2004. The letter stated that
Hatchett was welcome to apply for open positions in the department. (J.A. at 77.) By letter dated
February 12, 2004, Dixon advised Hatchett that she was ineligible to transfer to a different position
because of “an active, serious disciplinary action” in her file. (J.A. at 78.) Hatchett was offered the
position of nurse supervisor on the midnight shift because that position was replacing the midnight
nurse manager position. Hatchett would not accept the nurse supervisor position because it “was
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not a lateral position” and “she was too educated to take on that role.” (J.A. at 159, 229.) Because
she would not accept the nurse supervisor position, Hatchett’s last day of employment with
Heartland was February 29, 2004.
Hatchett filed a complaint regarding these incidents with the Michigan Department of Civil
Rights and the U.S. Equal Employment Opportunity Commission (“EEOC”). On March 24, 2004,
the EEOC issued a “right to sue” letter to Hatchett. Thereafter, Hatchett filed a complaint in the
United States District Court for the Eastern District of Michigan, alleging violations of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Michigan’s Elliott-Larsen Civil Rights
Act, Mich. Comp. Laws § 37.2101 et seq. Specifically, Hatchett’s complaint alleged disparate pay
rates based on race and retaliation for engaging in protected activities.
Heartland then filed a motion for summary judgment, which the district court granted on
May 6, 2005. The district court found that Hatchett: (1) failed to establish a prima facie case of race
discrimination because she did not show that she was treated differently than similarly situated non-
protected employees; and (2) failed to establish a prima facie case of retaliation because she did not
show that there was a causal connection between the protected activity and the alleged adverse
employment action. Accordingly, the district court entered judgment in favor of Heartland. This
timely appeal followed.
II.
A. Standard of Review
We review de novo the district court’s grant of summary judgment. Singfield v. Akron
Metro. Hous. Auth., 389 F.3d 555, 560 (6th Cir. 2004). Summary judgment is appropriate if “the
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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 reviewing a motion
for summary judgment, we view the evidence and draw all reasonable inferences from the facts in
favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). We weigh the evidence not to determine the truth of the matter but to determine
whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
A genuine issue for trial exists when there is sufficient evidence on which the jury could reasonably
find for the non-moving party. Id. at 252.
B. Discrimination
Both Title VII and the Elliott-Larsen Act make it unlawful for an employer to discriminate
against an individual with respect to her compensation, terms, conditions, or privileges of
employment because of such individual’s race. See 42 U.S.C. § 2000e-2(a)(1); Mich. Comp. Laws
§ 37.2202(a). Where the plaintiff fails to present direct evidence of racial discrimination, the courts
analyze Title VII and Elliott-Larsen Act cases under the McDonnell Douglas burden-shifting
paradigm. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Singfield, 389 F.3d at 561;
Sniecinski v. Blue Cross & Blue Shield of Mich., 666 N.W.2d 186, 193 (Mich. 2003). Initially, the
plaintiff must present evidence sufficient to establish a prima facie case of racial discrimination.
See Newman v. Fed. Express Corp., 266 F.3d 401, 405 (6th Cir. 2001). To establish a prima facie
case of discrimination, a plaintiff must show that she: (1) is a member of a protected class; (2) was
qualified for the position or privilege; (3) suffered an adverse employment action; and (4) was
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treated differently than similarly situated, non-protected employees. See, e.g., Singfield, 389 F.3d
at 561; Newman, 266 F.3d at 405. If the plaintiff is able to make a prima facie showing of
discrimination, she “in effect creates a presumption that the employer unlawfully discriminated
against the employee.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citation omitted).
The burden of production then shifts to the employer to articulate a legitimate nondiscriminatory
reason for the adverse employment action. See Newman, 266 F.3d at 405. If the employer meets
this burden, the burden of production shifts back to the plaintiff to show that the employer’s
nondiscriminatory explanation is a mere pretext for intentional discrimination. See id.
The parties do not dispute that Hatchett has established the first three elements of a prima
facie case of racial discrimination. However, the parties vigorously dispute whether the plaintiff can
establish that she was paid less than similarly situated employees outside of her protected class.
Hatchett seeks to establish that she was treated differently than Toni Morse, a Caucasian female day
shift nurse manager who received a higher base pay rate than Hatchett. The district court concluded
that Hatchett was not similarly situated to Morse, who did not perform the same job functions as
Hatchett, and thus plaintiff failed to identify a similarly situated employee outside the protected class
receiving more favorable treatment.
As this Court first explained in Mitchell v. Toledo Hospital, when the plaintiff lacks direct
evidence of discrimination, the plaintiff “must show that the ‘comparables’ are similarly-situated
in all respects.” 964 F.2d 577, 583 (6th Cir. 1992) (emphasis in original). This Court further
explained, in Ercegovich v. Goodyear Tire & Rubber Co., that the plaintiff “need not demonstrate
an exact correlation with the employee receiving more favorable treatment in order for the two to
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be considered ‘similarly-situated;’” rather, the plaintiff and the employee with whom the plaintiff
seeks to compare herself “must be similar in ‘all of the relevant aspects.’” 154 F.3d 344, 352 (6th
Cir. 1998) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)). This
means the plaintiff must “prove that all of the relevant aspects of his employment situation are
‘nearly identical’ to those of [the non-minority] employees who he alleges were treated more
favorably.” Pierce, 40 F.3d at 802. Differences in job title, responsibilities, experience, and work
record can be used to determine whether two employees are similarly situated. Leadbetter v. Gilley,
385 F.3d 683, 691 (6th Cir. 2004) (citing Pierce, 40 F.3d at 802). Applying the principles set forth
in Mitchell, Ercegovich, and Pierce, we conclude that Hatchett was not similarly situated to Morse.
While both Hatchett and Morse are registered nurses and while they may have held nurse
manager positions at Heartland, the record indicates that their job responsibilities were different.
Hatchett’s primary responsibilities as midnight nurse manager were supervising the staff of the
midnight shift and completing a census of all the residents in the Heartland facility at midnight each
night. As day shift nurse manager, Morse was responsible for the supervision of the short-term
rehabilitation unit, which involved supervising a larger staff, addressing customer services issues,
and frequent and numerous admissions and discharges. Unlike Hatchett, Morse was required to
attend the morning standup meeting and to participate in other meetings and programs that occurred
only during the day shift, including care conferences, Medicare meetings, quality assurance
committee meetings, and quality of life programs. Whereas Hatchett was never encouraged to visit
other shifts, Morse was highly encouraged to periodically visit other shifts.
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The record also indicates that Hatchett and Morse had different levels of experience at the
relevant time. While Hatchett did have a masters degree in nursing and prior managerial experience,
her resume indicates that she had no prior experience with geriatrics or in a skilled nursing facility.
(J.A. at 64.) Morse’s resume indicates that she had extensive prior managerial experience, including
more than three years of experience as a nurse manager at a skilled nursing facility. (J.A. at 67.)
Under these circumstances, the relevant aspects of Hatchett’s employment are not, as she claims,
“nearly identical” to Morse’s employment. Thus Hatchett and Morse are not “similarly situated”
employees. See, e.g., Hill v. Forum Health, 2006 WL 162967, at *7 (6th Cir. Jan. 20, 2006)
(comparing plaintiff’s duties with the duties included in the non-protected employee’s
responsibilities and concluding that the two employees were not similarly situated); Leadbetter, 385
F.3d at 691-92 (finding that plaintiff was not similarly situated to non-protected employee with
“superior experience”); Campbell v. Hamilton County, 23 Fed. Appx. 318, 326 (6th Cir. 2001)
(concluding that differences in levels of experience established that two employees were not
similarly situated); Pierce, 40 F.3d at 802 (considering distinctions in employment status and job
responsibilities in determining whether two employees were similarly situated).
Plaintiff argues that she has presented sufficient evidence of discriminatory animus to satisfy
her prima facie burden notwithstanding the absence of evidence that a similarly situated person
outside the protected class received more favorable treatment. This Court has recognized that there
may be cases where there is so much circumstantial evidence of discriminatory animus that the
plaintiff’s failure to establish the fourth element of the McDonnell Douglas burden-shifting
paradigm is not fatal to her claim. See Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 166
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(6th Cir. 2004). To satisfy the prima facie burden, the evidence must “tend to eliminate the most
common non-discriminatory reasons” for the adverse action and “raise an inference that the adverse
action was motivated by discriminatory animus.” Id. at 166-67. The circumstantial evidence that
Hatchett has proffered does not fulfill these functions.
First, plaintiff points to the handwritten notations of “C” and “B” on the wage matrix left
on the copy machine. At the outset, we note that plaintiff’s observation of these notations is not
otherwise corroborated. Plaintiff has not produced a copy of the wage matrix she describes. Kyle
Fassett and Myrtle Powell testified in deposition that there were no handwritten notations on the
wage matrix left on the copy machine. (J.A. at 181, 323.) Even assuming that such notations
existed, the alleged notations are ambiguous in that we do not know for certain what the notations
referred to. The ambiguity of the alleged notations greatly diminishes their value as evidence of
discriminatory animus.
Second, plaintiff asserts that Fassett’s refusal to compensate her at the same base pay rate
as Morse demonstrates discriminatory animus. Simply put, the record does not support Hatchett’s
assertion. In his deposition testimony, Fassett explicitly stated that he followed the instructions of
his superior and raised Hatchett’s base pay rate, after which all three nurse managers “were making
the same.” (J.A. at 185-86.) Moreover, Linda Neumann testified in her deposition that she
instructed Fassett to raise Hatchett’s base pay rate, and she believed that Fassett complied with her
instructions. (J.A. at 288-89.) Plaintiff presented no evidence that suggested that Fassett failed to
raise her pay rate to correspond to Morse’s pay rate. Accordingly, we conclude that plaintiff’s
proffered evidence is insufficient to support an inference of racial discrimination.
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Even assuming that Hatchett had established a prima facie case of discrimination, her
discrimination claim still would fail because Hatchett offered no evidence of pretext. If Hatchett
had established a prima facie case of discrimination, the burden would shift to Heartland to offer
a legitimate nondiscriminatory reason for the pay disparities among nurse managers. Newman, 266
F.3d at 405. Because Heartland articulated a legitimate nondiscriminatory reason for the pay
disparities--that pay depends on a variety of factors, including education and experience, job
responsibilities, and salary negotiations--Hatchett was then required to show that the proffered
reason was pretextual by showing that it: (1) has no basis in fact; (2) did not actually motivate the
defendant’s challenged conduct; or (3) was insufficient to warrant the challenged conduct. Dews
v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000). Hatchett did not present any such evidence.
Accordingly, there is no basis for a jury to conclude that the employer’s proffered reasons for the
pay disparities are false and that the actual reason that Hatchett was paid less than Morse was due
to Hatchett’s race.
C. Retaliation
Hatchett claims that Heartland retaliated against her after she raised a claim of
discrimination. Due to her alleged opposition, she claims that she received an unwarranted
disciplinary action that precluded her from transferring to a new position. To establish a prima facie
case of retaliation under Title VII, a plaintiff must show that: (1) she engaged in protected activity;
(2) the employer had knowledge of her exercise of her protected rights; (3) she suffered an adverse
employment action; and (4) a causal connection exists between the protected activity and the adverse
employment action. See, e.g., Singfield, 389 F.3d at 563; Wade v. Knoxville Utils. Bd., 259 F.3d
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452, 463 (6th Cir. 2001). The Elliott-Larsen Act, Mich. Comp. Laws § 37.2701(a), requires the
plaintiff to demonstrate that: (1) she opposed violations of the Act or participated in an activity
protected by the Act; and (2) her opposition or participation was a “significant factor” in the adverse
employment action. See Moore v. Kuka Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999).
To establish a causal connection between the protected activity and the adverse employment
action, a plaintiff must produce sufficient evidence from which an inference could be drawn that the
adverse action would not have been taken in the absence of the protected activity. Nguyen v. City
of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Although no one factor is dispositive in
establishing a causal connection, evidence that the defendant treated the plaintiff differently from
similarly situated employees or that the adverse action was taken shortly after the plaintiff’s
protected activity is relevant to causation. Id.
Although the burden of establishing a prima facie case of retaliation is “not onerous,” EEOC
v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997), Hatchett has failed to meet it. Hatchett
relies heavily on the timing of the “employee warning notice” at issue to demonstrate a causal
connection between her alleged protected activity and the disciplinary action. However, this Court
has held that temporal proximity alone is insufficient to establish a causal connection when there
is compelling evidence to the contrary. See Steiner v. Henderson, 121 Fed. Appx. 622, 626 (6th Cir.
2005). The mere fact that Hatchett was disciplined one month after first complaining about the pay
disparities among nurse managers does not establish a causal connection because Heartland has
provided compelling alternate causal explanations for the employee warning notice’s timing.
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Heartland notes convincingly that Hatchett was disciplined after she copied sensitive
employee information and failed to safeguard the documents. Plaintiff committed a serious breach
of trust by copying the wage matrix even though she admittedly did not have authority to do so. At
that time, plaintiff received an employee warning notice for failing to secure confidential
information and for copying confidential information without authorization. Before issuing the
warning notice, Fassett consulted with Neumann, Harper, and Mike Sheuy, a labor relations
specialist, and all agreed that disciplinary action was appropriate. Thus the temporal proximity
between Hatchett’s allegations and the disciplinary action is insufficient to support an inference that
Fassett’s decision to take disciplinary action against the plaintiff was caused by her allegations of
discrimination.
Hatchett also attempts to prove causation by showing that the discipline imposed was
unwarranted. However, Hatchett presented no evidence to establish that she was not appropriately
and properly disciplined, relying instead on bare allegations that discipline was unwarranted.
Moreover, Hatchett presented no evidence that Fassett did not follow Heartland’s discipline policy.
In contrast, Heartland has produced evidence indicating that Fassett considered the
recommendations of management and all of the relevant facts in deciding on the appropriate
discipline.
Hatchett’s argument is furthered weakened by evidence that Myrtle Powell was
contemporaneously disciplined in the same manner for engaging in similar misconduct. The
identical discipline imposed on Powell undermines any inference that the disciplinary action was
motivated by retaliation for opposing discrimination. See Moon v. Transp. Drivers, Inc., 836 F.2d
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226, 230 (6th Cir. 1987) (“Proof that similarly situated nonprotestors were disciplined just as harshly
for the same infraction suggests nonretaliation.”).
While the prima facie case is “a burden easily met,” Wrenn v. Gould, 808 F.2d 493, 500 (6th
Cir. 1987), a plaintiff must provide some evidence beyond temporal proximity to demonstrate a
retaliatory causal connection, especially where a defendant provides compelling evidence of
alternative causation. See Nguyen, 229 F.3d at 565-67; Moon, 836 F.2d at 229. Hatchett has failed
to do so. As a result, she has not met the causality prong of her prima facie case.
III.
For the foregoing reasons, we affirm the judgment of the district court.
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