Victoria Okakpu-Mbah v. Postmaster General of United States

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0362n.06
Case No. 21-2811
UNITED STATES COURT OF APPEALS
FILED
Aug 31, 2022
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
VICTORIA N. OKAKPU-MBAH, an individual, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
POSTMASTER GENERAL OF THE UNITED ) MICHIGAN
STATES, )
Defendant-Appellee. ) OPINION
)
Before: GIBBONS, WHITE, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. The United States Postal Service hired Victoria Okakpu-
Mbah to be a mail clerk. As a new hire, Okakpu-Mbah had to complete a 90-day probationary
period, during which it became clear that she was not working at the appropriate speed. In turn,
the Postal Service fired her. But Okakpu-Mbah believed that the Postal Service had treated her
unfairly—especially considering the workplace incidents with her co-workers that took place
during her probationary period. And so she sued, alleging that the Postal Service discriminated
against her based on race, national origin, age, and that her firing was retaliatory. The district court
granted summary judgment to the Postal Service, finding that Okakpu-Mbah did not show that the
Postal Service’s reason for firing her was pretextual. We AFFIRM.
No. 21-2811, Okakpu-Mbah v. Postmaster Gen. of United States
I.
Victoria Okakpu-Mbah is a Nigerian-born American. In 2016, she saw that the Postal
Service was hiring a mail clerk at its Oshtemo Process and Distribution Facility (also known as
the “Kalamazoo Hub Station” or “the Hub”).1
Okakpu-Mbah began working as a mail sorter in October 2016 at the age of 58. Her duties
involved processing packages, organizing them into carts by their zip code, and taking them to a
designated area for pick up. At times, Okakpu-Mbah was expected to work as an expeditor. In
that role, she had to go to the dock to receive incoming mail trucks, scan and monitor their trips
on a computer, and ensure that the trucks were loaded properly. Because of the large volume of
mail that had to be processed, speed was vital. Clerks had to “think quickly on [their] feet” and
“be aware of [their] surroundings” in order to “stay safe and do the work that’s required.”
Sometimes, mail clerks at Kalamazoo would start their day at the Westwood Post Office and work
a few hours before going to the Kalamazoo Hub.
Okakpu-Mbah had some trouble with her co-workers. She worked mainly with three
younger white females, Taylor Perkins, Krista Winters, and Joslyn Steck, who were all mail clerks.
Okakpu-Mbah testified that shortly after she started, one of her co-workers asked about her age.
And when she answered, the co-worker laughed and another said, “you’re as old as my mother.”
(R. 42-1, Okakpu-Mbah Dep., PageID 167.) But Okakpu-Mbah thought it was a “joke” and never
told Michelle Fish, her supervisor, about it. (Id.)
On December 23, 2016, Okakpu-Mbah was working on the dock as an expeditor. One of
her co-workers, Jessi DeGryse, pushed one of the mail carts towards her, but the cart never hit her.
Okakpu-Mbah complained to Perkins, but Perkins told her that is how DeGryse is. When DeGryse
1
The full title of the position is PSE Clerk, Sales and Services Distribution Associate.
2
No. 21-2811, Okakpu-Mbah v. Postmaster Gen. of United States
found out, she came up to Okakpu-Mbah and screamed “what did you say to Taylor, . . . you F’ing
old African piece of shit?” and told her to go back to her own country. (Id. at 169.) DeGryse was
spitting on her while telling her all of this. (Id.) Okakpu-Mbah then complained to Fish about the
event. (Id.) Fish told her to write a statement, which Okakpu-Mbah did. (Id. at 172.) In her
statement, Okakpu-Mbah did not recount the specific language used by DeGryse; instead, she
wrote that DeGryse was “cussing, swearing and . . . us[ing] all kinds of profane words that I cannot
even put down here.”2 (R. 42-9, Witness Statements, PageID 242.) And Fish warned DeGryse,
in the presence of her union representative, that her behavior was unacceptable.
As a new mail clerk, Okakpu-Mbah had to complete a 90-day probationary period. The
Postal Service uses this period as the “final step in determining an employee’s suitability, since
only an actual trial on the job can be conclusive.” U.S. Postal Serv., Handbook EL-312
Employment and Placement (“Handbook”), § 584.1.3 During this time, employees are assessed
on their work quantity, work quality, work relations, work methods, dependability, and personal
conduct. Supervisors are also required to give probationary employees three reviews before their
probationary period is over: one at 30 days, another at 60, and a final one at 80. And noncareer
employees are “separated as soon as it becomes evident that they are unable to meet the
requirements of their positions.” Handbook § 584.35.
Fish gave Okakpu-Mbah her 30-day review on November 24, 2016 and rated her as
satisfactory in all work categories except for work quantity, which she rated as unacceptable. Fish
testified that she gave Okakpu-Mbah that rating because she “was not working at an acceptable
2
Fish testified that she became aware of DeGryse’s racist and ageist comments only after Okakpu-
Mbah had been terminated. (R. 42-2, Fish Dep., PageID 196.)
3
Available at: https://about.usps.com/handbooks/el312/el312c5_039.htm
3
No. 21-2811, Okakpu-Mbah v. Postmaster Gen. of United States
speed” and “did not keep up with her co-workers.” (R. 42-2, Fish’s Dep., PageID 197.) She added
that “there was no sense of urgency in the work that she had done” and that she got in the way of
her co-workers. (Id.) Fish explained all this to Okakpu-Mbah, and according to Okakpu-Mbah,
told her that because she is new her speed would pick up over time.4
But Okakpu-Mbah’s speed did not improve. Towards the end of her probationary period,
Fish reached out to Okakpu-Mbah’s other supervisors asking for their feedback on Okakpu-
Mbah’s performance. Brandi Whitten, a black supervisor at the Westwood Post Office, told Fish
that Okakpu-Mbah “works veeeery slow and I don’t think she grasps the concept.” (R. 42-4,
Whitten Email, PageID 203.) Whitten also testified that Okakpu-Mbah was “slower than most of
the people that she was working with” and that she sometimes had to “redirect her to a different
task” as a result. (R. 42-5, Whitten’s Dep., PageID 210.) And Postmaster Travis Graham told
Fish that Okakpu-Mbah “has no sense of urgency” and recommended that she not be kept after her
probationary period. (R. 42-4, Graham Email, PageID 205.)
In January 2017, Fish fired Okakpu-Mbah because she was not working at the appropriate
speed. Following her termination, Okakpu-Mbah sued. She alleged race and age-based
harassment,5 race and national-origin discrimination, age discrimination, and retaliation.
Following discovery, the Postal Service moved for summary judgment, which the district court
4
The parties dispute whether Fish gave Okakpu-Mbah her other performance reviews before firing
her. Okakpu-Mbah maintains that Fish only gave her a 30-day performance review. And as
evidence of this, she stresses that she did not sign the evaluation sheet for the 60-day or 80-day
review. Fish, however, testified that she gave her all three performance reviews. Fish did not
recall specifically the 60-day review but said that the 80-day review was the meeting in which she
terminated Okakpu-Mbah. Fish explained that she forgot to have her sign and that she would not
enter information on the evaluation form without first giving a review.
5
Because Okakpu-Mbah did not pursue these claims on appeal, we do not consider them.
4
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granted. The district court held that Okakpu-Mbah failed to show that the Postal Service’s reason
for firing her—her lack of speed—was pretextual. Okakpu-Mbah appealed.
II.
“We ‘review a district court’s grant of summary judgment de novo, viewing all the
evidence in the light most favorable to the nonmoving party and drawing all justifiable inferences
in [her] favor.’” Delek US Holdings, Inc. v. United States, 32 F.4th 495, 497 (6th Cir. 2022)
(quoting Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 416 (6th Cir. 2020)).
III.
On appeal, Okakpu-Mbah argues that the Postal Service’s termination of her employment
was discriminatory. She claims Title VII race and national origin discrimination, see 42 U.S.C.
§ 2000e-2(a)(1), age discrimination under the Age Discrimination in Employment Act of 1967
(“ADEA”), see 29 U.S.C. § 621, and retaliation, see 42 U.S.C. § 2000e-3(a). We agree with the
district court and reject all three claims.
Because Okakpu-Mbah offers no direct evidence of discrimination or retaliation, her
claims follow the familiar employment discrimination burden-shifting framework.6 See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). First, she must make a prima
facie case that her employer’s adverse action was discriminatory or retaliatory. Smith v. City of
Toledo, 13 F.4th 508, 515 (6th Cir. 2021). If successful, the burden shifts to the employer to
provide a legitimate, nondiscriminatory reason for the adverse action. Id. At the last step, the
burden shifts back on Okakpu-Mbah to show that the reason was pretextual. Id. Like the district
court, we need only consider the pretext inquiry. Even if Okakpu-Mbah can establish a prima
6
The burden-shifting framework is the same for Okakpu-Mbah’s Title VII, ADEA, and retaliation
claims, so we consider them together. See Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.
1992) (ADEA); Kenney v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir. 2020) (retaliation).
5
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facie case, she cannot show that the Postal Service’s legitimate reason for firing her—her
insufficient work speed—was pretextual.
An employee can establish pretext in three ways. She can show that the proffered reason
(1) “had no basis in fact,” (2) “did not actually motivate the employer’s action,” or (3) was
“insufficient to motivate the employer’s action.”7 O’Donnell v. City of Cleveland, 838 F.3d 718,
728–29 (6th Cir. 2016) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)). The
plaintiff “must produce sufficient evidence from which a jury could reasonably reject [the
defendant’s] explanation of why it fired her.” Chen, 580 F.3d at 400. The Postal Service’s
employment handbook forecloses the third way of showing pretext because it says that employees
“should be separated as soon as it becomes evident that they are unable to meet the requirements
of their positions.” Handbook § 584.35. Working inefficiently is sufficient to motivate the firing.
This leaves the other two ways of showing pretext.
A.
The Postal Service’s reason for firing Okakpu-Mbah had a basis in fact. Okakpu-Mbah
received an unacceptable review for her work-quantity performance, Fish told her that her speed
was a concern, and other supervisors questioned her performance, saying she “works veeeery slow
and I don’t think she grasps the concept.” (R. 42-4, Whitten Email, PageID 203.) Moreover, we
have held that there is no “pretext when an employer’s nondiscriminatory reason for terminating
7
Okakpu-Mbah argues that she can establish pretext by showing that no other employee was ever
fired for the same reason as she was. In Smith v. Chrysler Corp., we explained that an employee
“can show pretext by offering evidence that the employer’s proffered reason . . . was never used
in the past to discharge an employee.” 155 F.3d 799, 805–06 (6th Cir. 1998). This has been used
interchangeably with a more “common exposition of the third method of proving pretext,” which
is that the proffered reason was insufficient to motivate discharge. Layman v. Alloway Stamping
& Mach. Co., 98 F. App’x 369, 376–77 (6th Cir. 2004). But regardless, Okakpu-Mbah must show
that the employees who were never fired for the same reason engaged in the same conduct. As
explained below, she fails to make this showing.
6
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an employee is later proven false, so long as the employer can show that it honestly believed the
reason was true when making the termination decision.” Boshaw v. Midland Brewing Co.,
32 F.4th 598, 606 (6th Cir. 2022). Indeed, this is true even if the employer’s “conclusion is later
shown to be mistaken, foolish, trivial, or baseless.” Chen, 580 F.3d at 401 (internal quotation
omitted). And here, Fish’s belief about Okakpu-Mbah’s performance was reasonable. Not only
was the belief based on Fish’s own observation, but also on the observations of other supervisors
who all agreed she was working slowly.
Okakpu-Mbah presents no evidence to the contrary. Instead, she asserts that she was not
slow, that she worked through her breaks, and that the Postal Service has no objective measures to
determine an employee’s speed. But an employee’s “subjective view of her” job performance is
not enough to establish pretext. Hendrick v. W. Rsrv. Care Sys., 355 F.3d 444, 462 (6th Cir. 2004).
“[C]onclusory allegations and subjective beliefs” are “wholly insufficient evidence to establish a
claim of discrimination as a matter of law.” Mitchell v. Toledo Hosp., 964 F.2d 577, 584–85 (6th
Cir. 1992).
And Okakpu-Mbah’s claim that she worked through breaks fares no better. After all, how
long she worked is not evidence of how efficiently she worked. In any event, Okakpu-Mbah’s
argument establishes, at most, that Fish might have been wrong about her performance review.
But, as explained, because Fish’s belief was reasonable, Okakpu-Mbah cannot show pretext by
showing that it was wrong.
Finally, Okakpu-Mbah’s claim that Fish’s evaluation was based on subjective opinion with
no objective metric cannot clear the pretext hurdle either. We have held that an employer’s use of
subjective reasons in terminating an employee, without more, “does not raise an inference” of
discrimination. Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 269 (6th Cir.
7
No. 21-2811, Okakpu-Mbah v. Postmaster Gen. of United States
2010); see also Tillotson v. Manitowoc Co., 727 F. App’x 164, 169 (6th Cir. 2018) (holding that
an employee “cannot establish pretext simply because some of the component metrics in the
company’s evaluative rubric are subjective”). And Okakpu-Mbah “has offered no evidence from
which a reasonable juror could infer that the [employer] manipulated, abused, or misapplied that
criteria to affect” her chances of being retained at the end of the probationary period. Tillotson,
727 F. App’x at 169. So even when an employer uses an “evaluation process [that] was haphazard”
that alone cannot create a “reasonable inference” of discrimination. Schoonmaker, 595 F.3d at
270 (internal quotations omitted). And an employer’s “unwise business judgments” or “faulty
evaluation system” does not establish an inference of discrimination either. Id. (internal quotations
omitted). All this is to say, Okakpu-Mbah has failed to show that the reason for firing her had no
basis in fact.
B.
Nor has Okakpu-Mbah established that her insufficient work speed did not actually
motivate her firing. On this front, Okakpu-Mbah makes several arguments, none of which are
convincing. She claims: (1) that similarly situated white employees were treated better, (2) that
other African Americans were treated badly, (3) that racism was generally pervasive, and (4) that
the Postal Service did not take DeGryse’s comments seriously. We address each in turn.
Comparators. Okakpu-Mbah points to Winters, Steck, and Perkins—three younger white
employees—and claims that although they had negative performance reviews during their
probationary period, they were not fired. As a factual matter, Okakpu-Mbah is correct that the
three women received negative reviews. But as a legal matter, these three women are not similarly
situated because they did not have the same performance issues as Okakpu-Mbah.
8
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Comparators must be “nearly identical” in “all relevant aspects” of their employment to
the plaintiff. Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir. 2004) (internal quotations
omitted). “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). On her 30-day review, Winters received an unacceptable rating for her
dependability on work, attendance, and reports. Steck received two unacceptable ratings, one for
dependability and one for work methods, like following safety rules. And as for Perkins, she
received no unacceptable ratings on her 30-day review; but received an unacceptable rating for her
dependability on both her 60-day review and 80-day review. But none of the three women received
an unacceptable rating for their work quantity. And “[s]uperficial similarities between a
disciplined employee and his colleagues” are not enough to make them comparators. Arendale
v. City of Memphis, 519 F.3d 587, 604 (6th Cir. 2008); see also Miles v. S. Cent. Hum. Res. Agency,
946 F.3d 883, 893 (6th Cir. 2020).
Simply receiving a negative review is not enough to make employees similarly situated;
instead, the reviews must concern similar work issues. Cf. Colvin v. Veterans Admin. Med. Ctr.,
390 F. App’x 454, 458–59 (6th Cir. 2010) (holding that a plaintiff failed to show that another is
similarly situated where they both had issues with speed because the plaintiff had committed
additional, serious errors that the other employee had not). Efficiency and dependability are “of a
very different nature, and there are legitimate reasons why [an employer] would treat them
differently.” Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006). And we have held
that a plaintiff is not similarly situated to employees where their “work records and evaluations”
were not “similar.” Shah v. Gen. Elec. Co., 816 F.2d 264, 270 (6th Cir. 1987).
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No. 21-2811, Okakpu-Mbah v. Postmaster Gen. of United States
Okakpu-Mbah responds that work quantity and dependability are comparable because
nothing affects overall production more than absenteeism. But this argument is unconvincing.
The relevant inquiry is not overall production, but the timeliness of the production. As Fish
testified, the amount of mail that had to be processed made speed “a very, very important part of
the job.” (R. 42-2, Fish’s Dep., PageID 197.) She explained that “it’s not a matter of just getting
through it, it’s a matter of getting the mail sorted . . . accurately by the time that the mail needs to
depart.” (Id.) And there are legitimate reasons to treat the two differently. For example,
employers can replace an absent employee to maintain overall production. But nothing makes up
for an employee’s lack of pace.8 Because the three women had different performance issues and
evaluations, they are not relevant comparators.9
8
Even if these performance categories—work quantity and dependability—were similar in all
relevant respects, there is another reason why at least Winters and Steck are not comparable to
Okakpu-Mbah: They improved, she did not. And we have held that “[d]ifferences in experience
and disciplinary history [may] establish that” comparators “are not similarly situated.” Tennial
v. United Parcel Serv., Inc., 840 F.3d 292, 304 (6th Cir. 2016). Although Perkins had attendance
issues at the 80-day evaluation, she missed time then because of a death in the family, so she too
is distinguishable from Okakpu-Mbah.
9
Okakpu-Mbah also argues that she did not receive her 60-day or 80-day performance reviews, so
she did not have the benefit of extra feedback. Although the Postal Service responds that she
received those reviews, at summary judgment we take the evidence in the light most favorable to
Okakpu-Mbah as the nonmoving party. See Delek US Holdings, Inc., 32 F.4th at 497. Still, even
if Okakpu-Mbah received only a 30-day review, that does not change the analysis. This is because
she was aware of her problematic performance from her 30-day review and no evidence suggests
that she improved. Thus, the failure to receive additional reviews does not establish pretext.
Further, although Winters, Steck, and Perkins may have received additional reviews and been
treated more favorably in this regard, this does not help Okakpu-Mbah overcome the fact that they
did not engage “in substantially identical conduct to that which the [Postal Service] contends
motivated its discharge of [Okakpu-Mbah]” and, thus, this difference fails to establish pretext.
Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 779–80 (6th Cir. 2016).
10
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Other Acts. Next, Okakpu-Mbah argues that Fish treated other African Americans “badly
too.” She claims that Fish terminated five other black employees, only gave access codes to white
employees, and preferred white employees “with respect to job duties and breaks.”
Okakpu-Mbah, however, did not develop these arguments, so they are forfeited.10 It is
well-established that parties give up “issues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th
Cir. 1997) (internal quotation omitted). Indeed, “[i]t is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” Id.(internal quotation omitted). Okakpu-Mbah does just that. Her brief does not elaborate on any of
these arguments. She mentions each contention and baldly asserts that each is probative of
discrimination. But absent is any effort to map these arguments onto the pretext analysis. Okakpu-
Mbah does not, for example, explain how each piece of evidence is probative of discrimination.
Nor does she explain the governing legal standard for this type of “other acts” evidence or try to
engage with that standard.11
10
The Postal Service argues that these arguments are “waived” but the proper term here is
“forfeited.” See United States v. Russell, 26 F.4th 371, 374 (6th Cir. 2022) (explaining the
difference between the two terms).
11
But even if Okakpu-Mbah had not forfeited these arguments, they would fail to establish pretext.
We allow employees to rely on “other acts” evidence to establish pretext under certain
circumstances. Griffin v. Finkbeiner, 689 F.3d 584, 598–600 (6th Cir. 2012). For example, the
plaintiff could show that the evidence is “logically or reasonably tied” to the adverse action against
her, that the same “bad actors” were involved, or that the conduct was in close temporal proximity,
among other factors. Schrack v. RNL Carriers, Inc., 565 F. App’x 441, 445 (6th Cir. 2014) (citing
Griffin, 689 F.3d at 599).
Okakpu-Mbah’s “other acts” evidence fails to meet this standard. For example, she claims that
five other employees were fired, but as it turns out, four of them remain employed and Fish had
no role in firing the fifth. And it is unclear how these firings are logically tied to Okakpu-Mbah’s
firing. She also does not explain how keeping access codes from two specific employees satisfies
any of the factors above. And finally, her contention that white employees were treated better are
conclusory remarks which cannot show pretext. See Mitchell, 964 F.2d at 584–85.
11
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Pervasive Racism. Okakpu-Mbah next claims that racism was generally pervasive at the
workplace. To show this, she marshals several arguments without seriously developing any of
them. So these arguments are forfeited just the same. See McPherson, 125 F.3d at 995–96.
But even if they were not forfeited, they fail to show pretext. Generally, “discriminatory
statements may establish the existence of a discriminatory atmosphere, which, in turn, could
contribute to a finding of pretext.” Smith, 13 F.4th at 518–19 (internal quotations omitted). But
“actions by nondecisionmakers cannot alone prove pretext, nor can decisionmakers’ statements or
actions outside of the decisionmaking process.” Id. at 519 (alterations omitted) (quoting EEOC
v. Ford Motor Co., 782 F.3d 753, 768 (6th Cir. 2015) (en banc)). And “rumors, conclusory
allegations and subjective beliefs . . . are wholly insufficient evidence to establish a claim of
discrimination as a matter of law.” Mitchell, 964 F.2d at 584–85.
Okakpu-Mbah relies heavily on Whitten’s testimony. Whitten testified that the Postal
Service fired Okakpu-Mbah “in part” because of her race. (R. 45-33, Whitten’s Dep., PageID
457.) But this is merely a conclusory allegation, which cannot show pretext. See Mitchell, 964
F.2d at 584–85. And this statement is puzzling given that Whitten was the one who told Fish that
Okakpu-Mbah was “veeeery slow” and testified that she “was slower than most of the people that
she was working with.” (R. 42-4, Whitten’s Email, PageID 203; R. 42-5, Whitten Dep., PageID
210.)
Whitten also claimed that white employees were treated better and their black counterparts
experienced racism. But other than Whitten’s conclusory statement, Okakpu-Mbah did not present
evidence of this, nor did she point to what favorable treatment black employees were not given.
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Such “vague assertion[s] that there was a general attitude of discrimination . . . is insufficient to
establish pretext.”12 Smith v. Leggett Wire Co., 220 F.3d 752, 761 (6th Cir. 2000).
Okakpu-Mbah also points to Whitten’s experience at Westwood. Whitten testified that she
endured racial slurs and gender-based derogatory comments. But none of these comments were
made by Fish or tied to her in any way. And there is no evidence that they influenced Fish’s
decision to terminate Okakpu-Mbah. See Blizzard v. Marion Tech. Coll., 698 F.3d 275, 287 (6th
Cir. 2012).
Whitten made two statements specifically about Fish. She said that she heard Fish make a
racial slur and that she heard that Fish had said her father was raised by the KKK. But these
general allegations are not enough to show pretext. Smith, 220 F.3d at 761. Okakpu-Mbah does
not state what that racial slur was, when it was said, and whether it was connected to her firing.
We have held that racially insensitive statements can be “sufficient evidence of racial animus only
if they [had] some connection to the decision to terminate” the employee. Griffin v. Finkbeiner,
689 F.3d 584, 595 (6th Cir. 2012) (emphasis added). So “[i]solated and ambiguous comments will
not support a finding of discrimination.” Id. (quoting Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344, 355 (6th Cir. 1998)). As for the KKK comment, putting aside the admissibility
issues, there is no evidence that Fish’s father was actually part of the KKK or that her decision
was influenced by her father’s alleged ties.
12
Okakpu-Mbah also points to statements from Daryale Franklin, one of Okakpu-Mbah’s
co-workers, and suggests that Franklin believed that the Postal Service treated Okakpu-Mbah
badly because of her race. But the statements Franklin made were about bullying and an incident
on the dock, both of which had nothing to do with the firing of Okakpu-Mbah, nor did Franklin
specifically mention race. In any event, this is just a conclusory allegation that cannot show
pretext. See Mitchell, 964 F.2d at 584.
13
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Okakpu-Mbah claims that racism was not taken seriously, as no employee was ever
disciplined for “making racial slurs or for engaging in racist conduct.” (Appellant’s Br. at 28.)
But Okakpu-Mbah does not clarify what racial slurs and conduct went unpunished. Nor does she
explain why that is relevant to her firing or that the Postal Service knew about these remarks and
failed to take action. Cf. Smith, 220 F.3d at 761 (noting the lack of evidence that an employer
“tolerated or condoned” racial harassment).
DeGryse Incident. Last, Okakpu-Mbah argues that “defendant’s lack of acknowledgment
of the seriousness of Ms. DeGryse’s conduct of committing racial and age harassment and an
assault on [her]” are “strong evidence of race and age discrimination, and retaliation.” There is no
doubt that DeGryse’s racist and ageist comments were repugnant and highly disturbing, but Fish
took appropriate steps to address them. She investigated and engaged in corrective action with
DeGryse explaining that her behavior would not be tolerated. Nothing suggests that DeGryse’s
comments were endorsed by Fish or contributed to her decision in anyway. In any event, we have
held that actions by nondecisionmakers “cannot alone prove pretext.” Ford Motor Co., 782 F.3d
at 768. And we held that statements—which were just as jarring as those here—by an employee’s
coworkers did not establish pretext because “none of the racial comments were made by the
persons who terminated” the employee. Smith, 220 F.3d at 759 (collecting cases). So they could
not show the employer’s animus. Id. Thus, DeGryse’s actions alone cannot prove pretext,
disturbing as they are.
IV.
The Postal Service produced evidence that it fired Okakpu-Mbah because she was slow at
work. Okakpu-Mbah believed this was pretext for racism, but she failed to produce sufficient
evidence to survive summary judgment. So we AFFIRM.
14