Bush v. Gambro Healthcare, Inc.

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0455n.06
Filed: June 27, 2007
No. 06-5315
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FRANCHATA BUSH, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
GAMBRO HEALTHCARE, INC., ) TENNESSEE
)
Defendant-Appellee. )
Before: SILER and GILMAN, Circuit Judges; ZATKOFF, District Judge.*
SILER, Circuit Judge. Plaintiff Franchata Bush appeals the district court’s order granting
summary judgment in favor of defendant Gambro Healthcare, Inc. (Gambro). Bush alleges that
Gambro violated Title VII, 42 U.S.C. 2000e et seq, 42 U.S.C. § 1981, and the Tennessee Human
Rights Act, T.C.A. § 4-21-401. She argues that she was discriminated against on the basis of her
race, that she was retaliated against for engaging in protected activity, and that she was subjected to
a hostile work environment. Because Bush’s arguments lack merit, we AFFIRM.
I. BACKGROUND
Bush is an African-American female who worked for Gambro, a provider of kidney dialysis
treatment for end-stage renal disease patients. Bush filed four EEOC charges against Gambro. The
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 06-5315
Bush v. Gambro Healthcare
first EEOC charge settled. The second EEOC charge arose when Gambro hired Ann Stepanek, a
Caucasian candidate, for a position that Bush had also applied for.
The third EEOC charge involved two incidents between Gambro and Bush. First, Bush
challenged the way Gambro treated her regarding the way she performed her duties during the
“Medicare incident.” The Medicare incident occurred when a Medicare billing-system error
involving $53 million in submitted claims caused widespread confusion within the company.
Second, Bush was using Gambro’s computers for personal use, in violation of company policy. She
alleged in the EEOC complaint improper behavior by Gambro in disciplining her for her computer
use.
Finally, the fourth EEOC charge involved an incident where Bush allegedly called a co-
worker a “rat” and a “bitch.” The fourth EEOC charge alleged that Gambro disciplined her for this
incident differently than her co-workers because of her race and in retaliation for having filed
previous EEOC charges. The district court granted Gambro’s motion for summary judgment.
II. ANALYSIS
1. Race Discrimination for Failure to Promote
To establish a prima facie case of racial discrimination based upon a failure to promote, Bush
must show that: (1) she is a member of a protected class; (2) she applied for and was qualified for
a promotion; (3) she was considered for and denied the promotion; and (4) other employees of
similar qualifications who were not members of the protected class received promotions at the time
her request for promotion was denied. Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir.
2000).
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Bush v. Gambro Healthcare
While it is questionable whether Bush has satisfied the similarly-situated prong, we will
assume that she has made a prima facie showing. Nonetheless, Gambro raised legitimate
nondiscriminatory reasons for hiring Stepanek. Gambro essentially stated that Stepanek was more
qualified than Bush for the position. The burden then shifted to Bush to establish that Gambro’s
reasons were a pretext designed to mask discrimination. Asmo v. Keane, Inc., 471 F.3d 588, 596 (6th
Cir. 2006). Bush has not demonstrated that race played any role in the decision-making process at
Gambro. Her unsupported allegations are not enough to establish that Gambro’s reasons were
pretextual. See Huguley v. General Motors Corp., 52 F.3d 1364, 1370 (6th Cir. 1995).
2. Retaliation for Engaging in Protected Activity
In order to establish a prima facie case of retaliation, Bush must demonstrate that: (1) she
engaged in protected activity; (2) the exercise of her civil rights was known to Gambro; (3)
thereafter, Gambro took an employment action adverse to her; and (4) there was a causal connection
between the protected activity and the adverse employment action. See Harrison v. Metropolitan
Gov't, 80 F.3d 1107, 1118 (6th Cir.1996).
Bush’s arguments do not satisfy the retaliation test. In order to satisfy the test for retaliatory
discrimination, she must offer more than a proximity in time between Gambro’s actions and her
protected activity. See Cooper v. City of North Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986). She
has not, however, “proffer[ed] evidence sufficient to raise the inference that her protected activity
was the likely reason for [Gambro’s] adverse action.” See EEOC v. Avery Dennison Corp., 104 F.3d
858, 861 (6th Cir. 1997) (quotation marks omitted).
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Bush v. Gambro Healthcare
Further, a reasoned assessment of Gambro’s alleged retaliatory conduct reveals that it had
a legitimate basis for its conduct. Gambro had a policy of monitoring the computer use of its
employees. It also had ample reason to believe that Bush had called a co-worker a “rat” and a
“bitch,” based upon a statement from a disinterested eyewitness to the incident. Bush’s earlier
EEOC complaints do not preclude Gambro from maintaining appropriate control over its employees.
3. Hostile Work Environment
In order to establish a prima facie case of hostile work environment based on race, Bush must
show that: 1) she is a member of a protected class; 2) she was subjected to unwelcome racial
harassment; 3) the harassment was based on race; 4) the harassment had the effect of unreasonably
interfering with her work performance by creating an intimidating, hostile, or offensive work
environment; and 5) there was employer liability. Newman v. Federal Exp. Corp., 266 F.3d 401, 405
(6th Cir. 2001).
Bush points to four separate incidents that she believes created a hostile work environment:
1) she was forced to meet with managers more often than Caucasian employees, primarily stemming
from the Medicare incident, and she was unfairly criticized for the Medicare incident; 2) she was
disciplined for using Gambro’s computers for personal use whereas other employees were not; 3)
her suspension arising from the “rat” and “bitch” incident is evidence of harassment; and 4) her
meeting with a superior was hostile because that superior clapped her hands and told Bush to “do
the math,” causing Bush to have a panic attack. After considering each incident individually, and
all of the incidents together, Gambro’s conduct is not “severe or pervasive enough to create an
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No. 06-5315
Bush v. Gambro Healthcare
environment that a reasonable person would find hostile or abusive.” Bowman v. Shawnee State
Univ. 220 F.3d 456, 462 (6th Cir. 2000).
Bush was the only employee who sent emails to managers and other co-workers regarding
the Medicare incident after management had instructed her not to send the communications. Race
did not factor into this incident. Management required the meetings because Bush had disobeyed
a direct request from her superior. The conduct she complains of is a direct result of her faulty
performance and is not evidence of a hostile work environment.
Race had no impact on management’s decision to reprimand Bush for her improper computer
use. Nothing in the record supports the allegation that Bush was unfairly disciplined for using the
computers for the same types of things as her co-workers. Bush used Gambro’s computers
extensively for personal matters, which was a violation of company policy warranting discipline.
Bush contends that her suspension for calling a co-worker a “rat” and a “bitch” is harassment.
She has not offered any evidence, however, that other Gambro employees had acted in a similar
manner yet faced less disciplinary action than she did.
Finally, Bush contends that a supervisor clapping her hands and telling Bush to “do the math”
during their meeting over the Medicare incident created a hostile work environment. Once again,
Bush has failed to demonstrate how this incident related to her race. The meeting took place because
of Bush’s actions during the Medicare incident.
AFFIRMED.
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