Patra Noumoff v. Checkers Drive-In Restaurants, Inc.

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0538n.06
No. 23-3167
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Dec 27, 2023
PATRA NOUMOFF, KELLY L. STEPHENS, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
CHECKERS DRIVE-IN RESTAURANTS, INC., ) OHIO
Defendant-Appellee. ) OPINION
)
)
Before: KETHLEDGE, THAPAR, and MATHIS, Circuit Judges.
KETHLEDGE, Circuit Judge. Patra Noumoff sued her former employer, Checkers Drive-
In Restaurants, Inc., asserting claims under Title VII of the Civil Rights Act of 1964 and the Ohio
Fair Employment Practices Law. The district court granted summary judgment to Checkers. We
affirm.
I.
In describing the facts for purposes of summary judgment, we view the record in the light
most favorable to Noumoff. See Sloat v. Hewlett-Packard Enter. Co., 18 F.4th 204, 209 (6th Cir.
2021).
Patra Noumoff was the general manager of a Rally’s Restaurant (owned by Checkers) in
Spring Grove, Ohio, from May 2013 to November 2015, and then again from June 2016 to October
2018. Her responsibilities included managing employees, controlling food and labor costs, and
ensuring that staff complied with Checkers’ time-keeping policies. Checkers evaluated Noumoff’s
No. 23-3167, Noumoff v. Checkers Drive-In Restaurants
performance several times a year, in part by reference to a “scorecard” that measured the Spring
Grove restaurant’s financial success relative to budget. Most of Noumoff’s performance
evaluations were positive, though she received a formal warning in November 2017 for
“substandard work.”
In January 2018, Checkers hired Almir Velagic to be the district manager of the Cincinnati
region. That made him Noumoff’s direct supervisor. Velagic reported directly to April Williams,
Employee Relations Manager, and Gordon Rowan, Operations Director. Williams and Rowan, in
turn, reported to Carlos Del Pozo, Senior Director of Operations, and David Bode, Senior Director
of People Support.
Velagic and Noumoff had a combative relationship from the start. Weeks after Velagic
became district manager, he told Noumoff that he was concerned about the quality of service at
the Spring Grove restaurant, having “mystery shopped” there three times. He also told her that the
Spring Grove restaurant was the only one in his region that had exceeded budgeted labor hours
during a recent reporting period. Noumoff dismissed these concerns, telling Velagic that his
“mystery shopping” feedback was unwelcome and that his labor hour calculations were wrong.
It was downhill after that. According to Noumoff, Velagic began regularly to berate her in
front of other staff members, several times telling her “I am done with you.” The resulting tension
was exacerbated in early February, when Noumoff challenged Velagic’s authority regarding a
hiring decision.
Velagic eventually told Williams and Rowan that he was frustrated with Noumoff’s
behavior, and forwarded them several emails and texts that he thought illustrated the problem.
Williams suggested that Velagic respond with a formal warning for discourteous behavior, but
Velagic instead decided to have an informal conversation with Noumoff about the value of
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teamwork, which he thought would keep their “relationship intact and moving forward.” Velagic
later reported that Noumoff seemed “receptive” to his comments.
In early April 2018, however, Noumoff sent Rowan (the Operations Director) a long email
in which she said, among other things, that Velagic was treating her unfairly because she was a
woman. Specifically, Noumoff said that Velagic routinely cut her off in conversation and often
ignored her requests for additional staffing and supplies—conduct that she said showed Velagic
did not “like [her] as a female.” Noumoff also told Rowan that she was “disappointed” and
“disgusted” that Velagic had not fired a Spring Grove employee, Antone, after Noumoff and
another employee, Tessa, had accused him of sexual misconduct and harassment. (Velagic instead
reprimanded Antone and eventually transferred him to another Checkers’ location.)
The next day, Rowan forwarded Noumoff’s email to Williams (the Employee Relations
Manager), who promptly opened a formal investigation into Noumoff’s complaints about gender
discrimination. As part of that investigation, Williams called Noumoff and asked her for specific
examples of how Velagic treated her differently because of her gender. Noumoff said that Velagic
“never let her finish her sentences[,]” and also mentioned Velagic’s handling of the “issue” with
Antone. After Williams spoke with Noumoff, she told Rowan that she would “investigate to
determine the validity of the claim” even though Noumoff “didn’t provide anything necessarily
specific about being treated differently[.]”
On April 16, while Williams’s investigation was still pending, Noumoff called Velagic to
discuss a staffing issue at the Spring Grove restaurant. According to Noumoff, Velagic
immediately began “screaming” at her, so she hung up on him. (Velagic said that they talked, that
Noumoff disagreed with what he said, and that Noumoff abruptly hung up.) Later that day,
Noumoff sent an email to Rowan and Williams in which she said, among other things: “I WILL
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NOT BE TREATED THIS WAY, AND SCREAMED AT. I wamt [sic] to file a formal complaint
and if Rallys will not concede, I will file a complaint with another office. I am done with this.
Rallys IS NOT doing its due didgence [sic] to support me.” But Williams apparently believed
Velagic’s version of events, and issued Noumoff a formal written warning a few days later for
“hanging up on” Velagic and for “sending the email ‘yelling’” at her and Rowan.
Around the same time, however, Williams also followed up with Noumoff regarding her
complaints about Velagic. Williams told Noumoff that she planned to close the investigation if
Noumoff could not provide concrete instances of discriminatory treatment. Noumoff never
followed up, so Williams formally closed the investigation at the end of April.
In late May 2018, Noumoff emailed Marc Mediate, Checkers’ Chief Operating Officer, to
complain that Velagic had refused to let her take a sick day and had also suspended her when she
could not find someone to cover her shift. She added that “things” had “not been good” between
her and Velagic since she complained about his behavior. Mediate immediately forwarded
Noumoff’s email to Williams and Rowan. Williams responded shortly thereafter, telling Mediate
that she had investigated Noumoff’s complaints about gender discrimination and was unable to
substantiate them. The next day, Noumoff went to work as she normally would, and was
apparently never formally suspended or reprimanded.
In June 2018, however, Noumoff received her second written warning. Earlier that month,
Noumoff emailed Rowan after Velagic had denied her request for certain vacation days. Rowan
told Noumoff that she could take only one vacation day between June 8 and June 10. Noumoff
took vacation on all three days anyway, so on June 12 she was issued a formal written warning for
insubordination. (The written warning appears to have been mistaken about what days Noumoff
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took off. But Noumoff agreed in her deposition that she knowingly took vacation days that had
not been approved.)
Twice over the next few months, Noumoff called Del Pozo (the Senior Director of
Operations) directly to complain about Velagic’s behavior. First, in August 2018, Noumoff told
Del Pozo that “Velagic was being particularly hateful and mean” to her and other female general
managers in his district. Then, on October 8, 2018, Noumoff told Del Pozo again that Velagic had
continued to treat her “more harshly than other managers of because of [her] gender.” (The record
is unclear whether Del Pozo reported these complaints to Williams or anyone else at Checkers.
Del Pozo said in his deposition that he could not recall either conversation.)
Meanwhile, on October 2, 2018, Williams received a phone call from a former Spring
Grove restaurant employee, Van Estill, who complained that Checkers owed him wages for time
he had worked but not been paid. Williams immediately began an investigation. By way of
background, Checkers has its employees record time in a computer program that registers the
precise times that each employee clocks in and out. If an employee forgets to clock in or out, the
restaurant’s general manager is required to document any “time punch changes” both
electronically (in the computer program) and physically (in a “time punch change binder” that each
restaurant keeps on site). If the general manager modifies an employee’s timecard, both the
employee and the general manager must verify the accuracy of the change by initialing the physical
time-record that goes in the time punch change binder.
While investigating Estill’s complaint about missing wages, Williams compared the
electronic time-punch records with the specific dates and times that Estill said he had worked but
not been paid. Williams noticed that Estill’s electronic timecard showed a 28-minute break during
a period that Estill had said he was working. Soon after discovering this discrepancy,
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Williams emailed Noumoff, requesting a picture of the physical time-record from the time-punch
change binder. (Presumably, Estill would have physically initialed this record if the time-punch
change was accurate.)
Noumoff responded the next day, October 12. At first, Noumoff said the time punch
records were “not in [the] binder any longer”; but a half hour later, she texted Williams a picture
of those records—which showed that, though an adjustment had been made to Estill’s clock out
time, neither he nor Noumoff had initialed next to that change in the time punch change binder.
Noumoff also texted Williams a picture of the electronic time record report, which timestamps
show was printed shortly before Noumoff sent it to Williams. On that printed copy of the time
report were Noumoff’s handwritten notes, which indicated that she had reviewed video footage
from Estill’s shift and confirmed that Estill had taken a break but failed to clock back in.
A few hours later, Noumoff contacted Williams again, this time to inform her that, just that
afternoon, another former Spring Grove restaurant employee, Qiana Bargainer, had also
complained that Checkers owed her wages. Noumoff then emailed Williams and Velagic a copy
of a handwritten note that, according to Noumoff, Bargainer had signed to document the time for
which she was owed wages—3.75 hours from a shift on September 13. Noumoff also forwarded
this document to the payroll department.
Williams then continued her investigation, now suspecting that Noumoff had intentionally
altered the time records. She first reviewed the electronic time report from the day that Bargainer
had said she was missing wages. That report showed that, on September 13, Bargainer clocked in
at 8:31 P.M., but clocked out a minute later, at 8:32 P.M. Williams then reviewed another time
report which showed that on September 17, Noumoff had changed Bargainer’s clock out time from
12:08 A.M. on September 14 to 8:32 P.M on September 13—thereby “taking away” 3.75 hours
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that Bargainer had actually worked. (Noumoff later said in her deposition that she had simply
made a mistake.) Williams then requested and reviewed video footage from the Spring Grove
restaurant. That video footage showed two things: first, that Estill was working during the time
he had purportedly clocked out for a 28-minute break; and second, that Noumoff was the one who
had adjusted both Estill and Bargainer’s time in the electronic timekeeping system.
On October 16, 2018, Williams completed her investigation and concluded that Noumoff
had manipulated employee time records in violation of Checkers’ policy. On that basis, Williams
recommended to Del Pozo that Noumoff be fired immediately, and Del Pozo and Bode authorized
the termination. Velagic suggested that they wait to fire Noumoff until her replacement had
completed training; but Williams and Bode both objected. Williams explained to Velagic that,
“after finding a violation of company policy and of federal wage and hour laws, allowing
[Noumoff] to remain employed exposes the company to serious liabilities and is not
recommended.” Bode agreed, reiterating the “seriousness” of employee time manipulation.
Noumoff was terminated the following week.
Noumoff thereafter sued Checkers, asserting claims of gender discrimination and
retaliation under both the Title VII and the Ohio Fair Employment Practices Law (the “Ohio Act”).
The district court granted summary judgment to Checkers, holding that Noumoff lacked evidence
from which a jury could find that Checkers’ proffered reasons for disciplining and then firing
Noumoff were pretextual. This appeal followed.
II.
We review the district court’s grant of summary judgment de novo. See Dodd v. Donahoe,
715 F.3d 151, 155 (6th Cir. 2013). We analyze claims of discrimination and retaliation identically
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under Title VII and the Ohio Act. See Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003)
(discrimination); Abbott v. Crown Motor Co., 348 F.3d 537, 541 (6th Cir. 2003) (retaliation).
A.
Noumoff’s primary argument on appeal is that the evidence in her case would allow a jury
to infer that Checkers retaliated against her for complaining about gender discrimination. See
42 U.S.C. § 2000e–3(a). Checkers responds that it had “legitimate, nondiscriminatory reasons”
for its actions—namely, that Noumoff violated Checkers’ employee conduct policy. Thus,
Noumoff must present evidence from which a jury could find that Checkers’ explanations are a
pretext for unlawful discrimination. See Sjostrand v. Ohio State Univ., 750 F.3d 596, 599 (6th Cir.
2014).
To demonstrate pretext, a plaintiff must ultimately prove both that her employer’s stated
reason for ending her employment “was not the real reason for its action, and that the employer’s
real reason” was discrimination. E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015)
(en banc). At summary judgment, however, a plaintiff need only produce evidence that would
allow a jury to find that her employer’s stated reason “is unworthy of credence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (quotation omitted); see Miles v. S.
Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 888 (6th Cir. 2020). To that end, a plaintiff can
typically create a genuine issue of fact by producing evidence that the employer’s stated reason
(1) had no basis in fact; (2) did not actually motivate the employer’s actions; or (3) was insufficient
to motivate the employer’s actions. See Briggs v. Univ. of Cincinnati, 11 F.4th 498, 515 (6th Cir.
2021).
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1.
Noumoff first argues that the proffered reason for her termination had “no basis in fact.”
Briggs, 11 F.4th at 515. Specifically, Noumoff contends that she mistakenly altered the time
records—and therefore did not do so “improperly” or “intentionally.”
But if an employer produces evidence that it honestly believed “in its proffered
nondiscriminatory reason for discharging an employee, the employee cannot establish that the
reason was pretextual simply because it is ultimately shown to be incorrect.” Majewski v.
Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). To demonstrate an honest
belief, the employer must provide evidence that it “made a reasonably informed and considered
decision” based on reasonable reliance on particularized facts. Shazor v. Pro. Transit Mgmt., Ltd.,
744 F.3d 948, 960-61 (6th Cir. 2014) (quotation omitted).
Here, Checkers has offered ample evidence that Williams, who recommended that
Noumoff be fired, and Del Pozo and Bode, each of whom supported Williams’s recommendation,
made a reasonably informed and considered decision. (It is unclear whether Del Pozo or Bode
was “the final decision-maker,” but both authorized Noumoff’s termination.) Williams made her
recommendation to fire Noumoff after conducting a detailed investigation—during which she
reviewed electronic time records from the days the employees said they were missing wages, cross
referenced those records against “punch card” modifications made outside Checkers’ electronic
time-keeping system, and reviewed video footage from the restaurant. Williams then determined,
in light of that evidence, that Noumoff had manipulated the employees’ time in violation of
Checkers’ policy. Williams therefore reasonably relied on particularized facts—which themselves
showed that Noumoff had manipulated employee time records—when she recommended that
Checkers fire Noumoff.
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Del Pozo and Bode, in turn, relied primarily on Williams’s recommendation—which
highlighted the specifics of Noumoff’s time-keeping manipulation—when they authorized
Noumoff’s termination. Thus, Del Pozo and Bode each made reasonably informed and considered
decisions to end Noumoff’s employment for violating Checkers’ policy.
Noumoff offers two responses. First, she says that Williams made an uninformed decision
because she did not speak to Noumoff or “ask either of the two employees if there was any basis
to believe Noumoff was doing anything intentional to steal or deprive them of wages.” Maybe
Williams should have done those things; but so long as an employer honestly and reasonably
believed the nondiscriminatory reason for its action, the employer need not use an “optimal”
decision-making process that leaves “no stone unturned.” Seeger v. Cincinnati Bell Tel. Co., LLC,
681 F.3d 274, 285 (6th Cir. 2012) (internal quotation marks omitted). Here, as shown above,
Williams recommended that Checkers fire Noumoff only after she scrutinized the time records and
reviewed video footage from the restaurant—all of which, in Williams’s professional judgment,
showed that Noumoff had manipulated employee time records in violation of Checkers’ policy.
Checkers has therefore shown that it honestly believed its non-discriminatory reason for firing
Noumoff, which means that Noumoff has failed to establish pretext on the grounds that Checkers’
“proffered reason[] had no basis in fact.” Briggs, 11 F.4th at 515.
Second, Noumoff contends that Checkers waived its “honest belief” defense by raising it
for the first time in its reply brief below. Generally, an argument raised for the first time in a reply
brief is “not properly raised before the district court, and so [is] also not properly preserved for
appeal.” Travelers Prop. Cas. Co. of Am. v. Hillerich & Bradsby Co., 598 F.3d 257, 275 (6th Cir.
2010). But Noumoff opened the door in her response brief below by challenging the thoroughness
of Williams’s investigation. And in any event, an argument is not deemed waived “where the
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district court fully addressed the argument in its order and where both parties fully briefed the issue
on appeal.” Salling v. Budget Rent-A-Car Sys., Inc., 672 F.3d 442, 444 (6th Cir. 2012) (cleaned
up). Here, the district court considered Checkers’ honest belief argument in its opinion and held
that, because of it, Noumoff could not establish pretext as a matter of law. In addition, both parties
have briefed and argued the issue on appeal. Thus, Checkers did not waive this argument. See
Lexicon, Inc. v. Safeco Ins. Co. of Am., 436 F.3d 662, 670 n.6 (6th Cir. 2006).
2.
Noumoff next argues that a jury could find that Checkers disciplined and then fired her in
retaliation for her complaints about gender discrimination. Specifically, Noumoff says that
because each disciplinary incident occurred shortly after she had complained about perceived
gender discrimination, a jury could find that Checkers’ actions were retaliatory. But Noumoff
lacks any evidence aside from temporal proximity that Checkers’ actions were in fact motivated
by retaliatory intent. And “we have repeatedly cautioned against inferring causation based on
temporal proximity alone.” Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 471–72 (6th Cir.
2012). Instead, in each instance, an intervening event interrupted the causal chain, thereby
dispelling any inference of retaliation.
First, Checkers’ intervening discovery of Noumoff’s time manipulation undermines any
inference that Checkers true motivation for firing her was retaliation. Indeed, so far as the record
shows, Checkers fired Noumoff after discovering her actions—and over Velagic’s objections
about the disruption that would cause—precisely because it regarded the manipulation of
employee time records as particularly serious. Cf. Vereecke v. Huron Valley Sch. Dist., 609 F.3d
392, 401 (6th Cir. 2010) (the presence “of an obviously nonretaliatory basis” undermines an
inference of “retaliatory motive”). Checkers made its decision to fire Noumoff only after a notably
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thorough investigation by Williams; and Noumoff lacks any evidence that Checkers did so for any
reason other than improper time manipulation. See Reeves, 530 U.S. at 148 (an employer is entitled
to judgment as a matter of law “if the record conclusively revealed some other, nondiscriminatory
reason for the employer’s decision”). Noumoff responds that Checkers was “simply searching for
mistakes” to “justify a termination.” But nothing in the record supports that assertion. Williams
undisputedly opened her time-manipulation investigation only after she was informed that two
former Spring Grove employees were missing wages for time they had worked.
The same is true for both written warnings. Between the time Noumoff complained and
the time of her first written warning (for discourteous behavior), she hung up on Velagic and then
sent an email “yelling” at Williams and Rowan. And Checkers’ policy prohibits “disrespectful”
behavior to “fellow employees.” Similarly, Noumoff received her second written warning (for
insubordination) only after she knowingly took unapproved vacation days. This action, too, was
in violation of Checkers’ policy—namely because Noumoff directly disobeyed Rowan’s orders.
Thus, in each instance, Checkers had an intervening legitimate reason to discipline Noumoff,
which dispels an inference of retaliation based on temporal proximity. Wasek, 682 F.3d at 472.
Noumoff lacks evidence that would allow a reasonable jury to find that her misconduct did
not “actually motivate” Checkers’ decisions. Simply put, Noumoff has not shown that her alleged
evidence of retaliation makes it more likely than not that Checkers’ decisions were pretextual. See
Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 675-76 (6th Cir. 2008). Her
argument that her warnings and termination were retaliatory therefore fails.
3.
Noumoff also contends that Checkers’ reasons for disciplining and then firing her were
insufficient to explain its actions. But Noumoff has not identified any other similarly situated
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Checkers employee who engaged in comparable behavior but was treated less severely. See
Blizzard v. Marion Tech. Coll., 698 F.3d 275, 286-87 (6th Cir. 2012). Moreover, Checkers’
Employee Handbook plainly provides that each of Noumoff’s actions could result in “discipline[],
up to and including termination.” Hence this argument fails too.
B.
Noumoff next argues that the district court should not have applied the McDonnell–
Douglas analysis to her retaliation claim because she offered direct evidence of retaliation.
Specifically, Noumoff says that the April 2018 written warning is direct evidence of discrimination
because Checkers issued that warning in direct response to her complaints about Velagic’s putative
gender discrimination. Direct evidence, however, “is that evidence which, if believed, requires no
inferences to conclude that unlawful retaliation was a motivating factor in the employer’s action.”
Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 349 (6th Cir. 2021) (quotation omitted).
Here, Checkers’ issued the April 2018 warning not because Noumoff complained, but because she
hung up on Velagic and then “yelled” at Williams and Rowan. One would therefore have to draw
an additional inference to conclude that this warning was in fact retaliatory. Thus, Noumoff has
failed to offer direct evidence that Checkers fired her in retaliation for her protected activity. The
district court correctly awarded summary judgment to Checkers under the McDonnell Douglas
framework.
C.
Finally, Noumoff argues that the district court erred in granting summary judgment to
Checkers on her discrimination claim. But Noumoff has not met her burden of establishing that
Checkers’ proffered nondiscriminatory justification was a pretext for discrimination for the
reasons stated above.
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* * *
The district court’s judgment is affirmed.
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