NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0209n.06
Case No. 17-2158
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 23, 2018 MICHELLE H. BAILEY, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN OAKWOOD HEALTHCARE, INC., d/b/a ) OAKWOOD HOSPITAL & MEDICAL ) CENTER, ) MEMORANDUM OPINION ) Defendant-Appellee. )
BEFORE: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.
McKEAGUE, Circuit Judge. Plaintiff Michelle Bailey, having worked for defendant
Oakwood Healthcare, Inc. (“Oakwood”) as Senior Staffing Professional for less than eight
months before beginning a three-month maternity leave, was fired the day she returned from
leave. Having had no prior notice of dissatisfaction with her performance, Bailey sued Oakwood
under federal and state law, alleging her termination was motivated by discriminatory and
retaliatory animus.
Following discovery, Oakwood moved for summary judgment. Oakwood contended that
it had, during Bailey’s maternity leave, uncovered both deficiencies in her performance and
falsifications in her employment application that justified her discharge. The district court
granted the motion, concluding Bailey had failed to adduce sufficient evidence to support a Case No. 17-2158, Bailey v. Oakwood Healthcare
finding that Oakwood’s nondiscriminatory grounds were a pretext for unlawful discrimination.
Bailey asserts several claims of error on appeal. Because we find the district court’s opinion to
be thorough and well reasoned, we affirm on the basis of its opinion, and for the additional
reasons set forth below.
I
We start by accepting the district court’s finding or presumption that Bailey has met her
burden of establishing a prima facie case in support of each of her federal and state law claims
for race discrimination, age discrimination, pregnancy discrimination, and retaliation. It is
likewise clear that Oakwood has rebutted each prima facie case by identifying legitimate grounds
for its actions. The real battleground on appeal revolves around the sufficiency of the evidence
to create a triable question on Bailey’s claim that Oakwood’s given reasons are pretextual. In
this regard, as the district court observed, Bailey is obliged to show that “(1) the employer’s
stated reason had no basis in fact, (2) the stated reason did not actually motivate the employer, or
(3) the stated reason was insufficient to warrant the adverse employment action.” R. 69, Opinion
at 25, Page ID 2016 (quoting Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 590 (6th Cir.
2014)). Beyond showing that the stated reason for her discarge is false, however, Bailey must
also produce sufficient evidence from which the fact finder could reasonably infer that the
asserted unlawful discrimination or retaliation was the real reason. Seeger v. Cincinnati Bell Tel.
Co., 681 F.3d 274, 285 (6th Cir. 2012) (discrimination claim); Tingle v. Arbors at Hilliard,
692 F.3d 523, 530 (6th Cir. 2012) (retaliation claim). We review de novo the district court’s
assessment that Bailey failed to meet her burden. See Tingle, 692 F.3d at 529–30.
In relation to all four theories of relief, Bailey makes several arguments challenging both
of Oakwood’s given reasons for discharging her. As to the first reason, falsifications in her
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employment application, Bailey’s immediate supervisor, Manager of Recruitment and Retention
Pandora Walker (who, like Bailey, is African-American), explained that when Bailey began her
maternity leave on December 5, 2013, she (Walker) and others had to assume Bailey’s
responsibilities. In doing so, Walker uncovered deficiencies in Bailey’s performance. Discovery
of these deficiencies led Walker to review Bailey’s qualifications for the position, as set forth in
her employment application. Walker’s investigation uncovered a two-year-earlier application for
an Oakwood position by Bailey. When Walker compared the two resumés, she discovered
discrepancies, indicating to her that Bailey had falsified her later application by exaggerating her
prior experience and qualifications. Walker and Director of Human Resources David Squire
confronted Bailey with the discrepancies when she returned from maternity leave on March 20,
2014.
Bailey did not, and does not, deny that the application contained inaccuracies.
“Falsifications,” however, is too strong, she says. Bailey prefers to characterize the inaccuracies
as, at worst, mere “embellishments” of the time periods and job titles of positions she held at
Beaumont Hospital. Her argument that this reason is pretextual does not assert, therefore, that
the reason has no basis in fact. Rather, she contends her embellishments are insufficient to
justify termination. After all, she insists, the job descriptions set forth in both applications are
roughly consistent.
The district court was not persuaded. After summarizing the relevant discrepancies
identified by Oakwood and finding Bailey’s characterization “more than a little disingenuous,”
the court concluded that resumé misrepresentation by a senior human resources professional
could reasonably be deemed sufficiently egregious to defy correction by mere counseling or
other lesser discipline. R. 69, Opinion at 14, 31, 34, Page ID 2005, 2022, 2025. In the process,
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the court correctly recognized that it had no prerogative to second-guess the wisdom of
Oakwood’s standards or to substitute its judgment for that of management. Id. at 27, Page ID
2018 (citing Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462 (6th Cir. 2004)). Indeed,
“[w]hen an employer reasonably and honestly relies on particularized facts in making an
employment decision, it is entitled to summary judgment on pretext even if its conclusion is later
shown to be ‘mistaken, foolish, trivial, or baseless.’” Tingle, 692 F.3d at 531 (quoting Chen v.
Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009)). See also, Loyd, 766 F.3d at 589–90;
Seeger, 681 F.3d at 285–86.
We find no error in the district court’s conclusion that Oakwood’s first reason is neither
trivial nor insufficient to justify terminating Bailey’s employment. Bailey having failed to show
that Oakwood’s first legitimate nondiscriminatory reason is false or insufficient, it stands
effectively unrebutted, apart from her contention that it’s not the real reason, addressed below.
Secondly, Oakwood’s decision was motivated by dissatisfaction with her job
performance. Oakwood identified various errors made by Bailey in processing others’
applications for positions with Oakwood from April to December 2013. The record of Bailey’s
various missteps is compiled in two exhibits. The first of these consists of 28 pages of email
messages and other correspondence collected by Walker. R. 41-18, Performance Issues, Page ID
1260. The second, also created by Walker, notes Bailey’s chronic tardiness and includes a listing
of twelve performance errors from September 6 to December 5, 2013. R. 41-19, Unacceptable
Performance Listing, Page ID 1289. These documents were presented to Bailey by Walker and
Squire in the March 20, 2014 meeting, but Bailey contends she was not allowed to review them
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and was able to explain her position on only a handful of incidents during the meeting. R. 34-5,
Bailey Dep. at 83–88, Page ID 384–85.1
Apart from this partial defense of her job performance, the district court observed, the
factual bases for many of the cited performance issues are effectively unrefuted and even
conceded by Bailey. The court thus concluded that, again, Bailey’s pretext arguments are
dependent on her showing either that her performance deficiencies were insufficient grounds for
termination or not the real reason. And again, the district court concluded that the record
presented no justification to second-guess Oakwood’s business judgment: “All in all, Plaintiff
has not shown that her performance issues taken together were so objectively negligible as to
permit an inference that they were nothing more than pretext.” R. 69, Opinion at 28, Page ID
2019. And for the reasons stated by the district court, we agree.
II
In support of her contention that Oakwood’s given reasons were not actually the
motivating force behind her termination, Bailey cites various circumstances. These
circumstances are said to warrant a reasonable inference that Bailey was the victim of either race,
age or pregnancy discrimination, or retaliatory animus. We note at the outset that, even though
some of the cited circumstances tend to impugn the integrity of Oakwood’s reasons, the record is
devoid of evidence of either race or age discrimination beyond the elements of Bailey’s prima
1 Bailey has attempted to provide a fuller explanation of her role in the listed incidents in a 30-page unsworn declaration. R. 41-3, Bailey Dec., Page ID 1023. The district court granted Oakwood’s motion to strike the declaration, however, because it was, as originally submitted, unsworn and unsigned and not in conformity with the requirements of 28 U.S.C. § 1746. R. 68, Order, Page ID 1981. The court noted that Bailey had an adequate opportunity to tell her story in a five-hour deposition and concluded that no exception to § 1746 was warranted. Bailey has challenged the ruling in this appeal. Evidentiary rulings are reviewed for abuse of discretion. Decker v. GE Healthcare, Inc., 770 F.3d 378, 391 (6th Cir. 2014). On due consideration of the district court’s order in light of Bailey’s present arguments, we find no abuse of discretion. -5- Case No. 17-2158, Bailey v. Oakwood Healthcare
facie case on each count. That is, even if we recognize that the circumstances call Oakwood’s
reasons into question, they furnish no support for a reasonable inference that race or age
discrimination was the real reason for Bailey’s termination. Walker and Squire made the decision
to hire Bailey in April 2013, despite knowledge of her race and age. The record is devoid of
evidence of any change in their understanding of her race or age that played a role in their
decision to terminate her employment a mere eleven months later. To this extent, Bailey has
clearly failed to carry her burden of showing pretext, per Seeger, 681 F.3d at 285, and the district
court’s summary judgment on the race and age discrimination claims must be affirmed. Closer
questions are posed by Bailey’s pregnancy discrimination and retaliation claims.
The circumstances relied on by Bailey are summarized as follows:
(1) At the end of her four-month probationary period, Bailey’s New Employee
Assessment Form, completed by Walker and Squire in August 2013, showed that she received
the highest possible rating, “3” or “Role Model” in ten out of thirteen categories, and received
the next highest rating, “2” or “Solid Performer” in the remaining three categories. R. 41-10,
Assessment Form, Page ID 1205.
(2) In relation to both the application-misrepresentation issue and the performance
deficiencies, Oakwood failed to comply with its own Human Resources Policy by failing to give
Bailey (a) notice of the deficiencies, (b) counseling, and (c) progressive application of corrective
action. R. 41-17, HR Policy & Procedure, Page ID 1248–58.
(3) Inconsistencies between Walker’s and Squire’s versions of the timing of, and reasons
for, the decision to terminate Bailey’s employment.
(4) The temporal proximity between Bailey’s announcement of her pregnancy and
(a) Walker’s restoration of an 8:00 a.m. daily start time for Bailey (after it had been relaxed to
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8:30 a.m.); (b) an increase in her workload; and (c) her termination upon return from maternity
leave.
(5) Bailey’s having become more vocal in the Fall of 2013 about her perception that
Walker exhibited racial bias in her treatment of certain African-American applicants.
A. Inconsistent Explanations
The district court addressed each of these arguments forthrightly and, we believe,
correctly. As to the asserted inconsistencies, Bailey contends the record supports the finding that
Walker and Squire formed the intent to terminate her employment even before the meeting on
March 20, 2014, not just after they found her response to their concerns unsatisfactory. The
district court determined that any discrepancies were immaterial, distinguishing Tinker v. Sears,
Roebuck & Co., 127 F.3d 519 (6th Cir. 1997). Indeed, in Tinker, the fact questions at issue—
regarding termination of a 29-year employee (whose performance as a mechanic had
undisputedly been excellent) based on a single technical policy violation (failure to sign a work
order)—gave rise to a suspicion of mendacity entirely different in character from the instant
discrepancies. Here, by Bailey’s own description of the March 20 meeting, Oakwood has relied
from the beginning on both her performance deficiencies and resumé embellishments as grounds
for its decision. R. 34-5, Bailey dep. at 84–102, Page ID 384–89. Speculation as to when,
precisely, Oakwood, through its decision makers, formulated the resolve to terminate Bailey’s
employment is of little consequence.
B. Failure to Follow Disciplinary Policy
Bailey’s arguments about the significance of her positive performance evaluation and
Oakwood’s failure to follow its own progressive discipline policy are two parts of a whole. The
district court placed little weight on the performance evaluation because it found that Bailey had
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effectively conceded performance deficiencies—both before and after the evaluation. Indeed,
the assessment form itself is not unequivocally “glowing.” On a rating scale of 0 to 3 (0 =
Unacceptable, 1 = Needs Improvement, 2 = Competent, 3 = Role Model), Bailey received an
“overall rating” of 2, or Competent, in all three listed categories: specific job responsibilities,
service excellence, and attendance. The assessment also includes the following comments:
Michelle is a great addition to our team and continues to become proficient in her new role. She should pay a bit more attention to detail to ensure her work is accurate and positions are filled correctly.
R. 41-10, Assessment Form, Page ID 1205–06. The performance evaluation is thus not
necessarily inconsistent with Oakwood’s identification of continuing performance deficiencies
after the evaluation. The continuing failure-to-pay-attention-to-detail inaccuracies that
characterized Bailey’s performance before and after the August 2013 evaluation, combined with
concerns about the late-discovered application misrepresentations, represent facially valid
reasons for Oakwood’s termination that are not undermined by the performance evaluation.
But these concerns are not so serious, Bailey argues, that they could not have been
appropriately addressed through progressive discipline in accordance with Oakwood’s HR
Policy. She contends Oakwood did not give her prior notice, counseling, or opportunity to
complete a corrective action plan, measures that should ordinarily be expected prior to
termination. This suggests, she argues, that Oakwood’s proffered concerns were not the real
reason for its decision.
The district court recognized that an employer’s failure to follow its own internal
disciplinary procedures may be probative evidence, but that more is required to create a genuine
fact question on pretext, citing Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 561 (6th Cir.
2009); White v. Columbus Metro. Housing Auth., 429 F.3d 232, 246 (6th Cir. 2005); Gunn v.
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Senior Servs. of N. Kentucky, 632 F. App’x 839, 846–47 (6th Cir. 2015). The court noted that
the HR Policy gives Oakwood management the discretion to tailor disciplinary responses based
on the gravity of the infraction. Whereas Bailey minimized the significance of her application
misrepresentations, the court found Oakwood’s position more persuasive, i.e., that resumé
misrepresentations by a senior human resources professional represent an infraction so egregious
as to defy correction by mere counseling or other lesser discipline. R. 69, Opinion at pp. 31–35,
Page ID 2022–26.
Oakwood’s handling of the matter could have been better—especially considering that all
involved are human resources professionals. Still, we find no fault in the conclusion that
Oakwood’s decision was not so unreasonable as to be disbelieved by a reasonable jury. See
Sybrandt, 560 F.3d at 558; Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 268
(6th Cir. 2010). Absent evidence of unlawful discrimination, the federal courts have no authority
to interfere in private personnel management matters, however unwise or unfair they may appear
to be. See Loyd, 766 F.3d at 589–90; Tingle, 692 F.3d at 531; Seeger, 681 F.3d at 285–86.
C. Pregnancy Discrimination
Yet, Bailey insists there is evidence of unlawful discrimination. The temporal proximity
between the announcement of her pregnancy in August 2013 and her termination in March 2014,
immediately after returning from leave, is said to give rise to a reasonable inference that she was
terminated, not for the stated reasons, but because she became pregnant. The reasonableness of
the inference is said to be buttressed by the facts that: (a) Walker restored her daily work start
time to 8:00 am in October 2013; (b) Bailey’s workload began to increase at about the same
time; and (c) Walker had made disparaging remarks implying her disapproval of Bailey’s
pregnancy at the age of 40.
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The district court rejected the temporal proximity argument, citing Asmo v. Keane, Inc.,
471 F.3d 588, 598 (6th Cir. 2006), where an employee’s termination two months after the
employer learned of her pregnancy was considered to be insufficient, standing alone, to show
pretext. Similarly, in Megivern v. Glacier Hills, Inc., 519 F. App’x 385, 398–401 (6th Cir.
2013), we held that a two-week period was not close enough, without more, to give rise to an
inference of discrimination.
Here, in contrast, Bailey complains of a decision made not only seven months after
Oakwood learned of her pregnancy, but also some period of time after she had ceased to be
pregnant at all. If Oakwood had taken adverse action against Bailey before workplace burdens
resulting from her pregnancy were actually borne by Walker and other employees, rather than
afterward, then the timing would be more suspicious. But that’s not what happened. We find no
error in the district court’s conclusion that Bailey’s termination was too far removed from
Oakwood’s first knowledge of her pregnancy to suggest a causal nexus between the two. And
this determination undercuts the significance of the other circumstances that are said to buttress
an inference of pregnancy discrimination. Walker’s insensitive comments about Bailey’s
pregnancy at age 40 reflect a lack of discretion, but nothing more. Nor is there great probative
value in the fact that Bailey’s start time was restored to the normal time of 8:00 a.m. by Walker
when Bailey had undeniably continued to struggle with tardiness when her start time had been
relaxed to 8:30 a.m.
Finally, the district court correctly rejected Bailey’s argument that an increase in her
workload in the Fall of 2013 signaled pregnancy discrimination. The court found the claim that
Bailey was uniquely affected by an increased workload both unsupported by credible evidence
and undermined by evidence that she had in fact invited Walker to assign her additional work in
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June 2013. R. 69, Opinion at 37–38, Page ID 2028–29. Bailey argues on appeal that the court
improperly overlooked statistical evidence. See Sealed Exhibit N. However, the urged
comparison of “positions-filled” statistics reveals no great disparity between the performance
levels achieved by Walker and Bailey and reveals nothing about workload. The statistical
evidence is too ambiguous to warrant an inference of anything probative of pretext.
D. Retaliation
Bailey’s claim that her termination was the result of impermissible retaliation is based on
the allegation that she had questioned Walker about apparent racial bias in her evaluations of
certain employment applicants. The district court recognized that Bailey’s alleged informal
complaints to Walker about perceived racial bias could be considered “protected activity.”
Walker denied having discussed matters of race with Bailey, but the court assumed the
truthfulness of Bailey’s version. Still, for the reasons discussed above in relation to Bailey’s
other claims, the court held she had failed to adduce evidence sufficient to rebut Oakwood’s
facially valid reasons for terminating her employment. The court explicitly discussed situations
involving three African-American applicants who Bailey contended had received less favorable
treatment from Walker than Bailey had recommended. R. 69, Opinion at 8–11, Page ID 1999–
2002. The court also recognized that Bailey acknowledged the existence of plausible, race-
neutral reasons for the unfavorable treatment of each one, including the discovery that two of the
three applicants had prior criminal records. Bailey contends the district court erred by failing to
recognize the significance of the temporal proximity between her disagreements with Walker and
her termination, and by failing to view the evidence in the light most favorable to her.
Again, we find no error. Suffice it to say that a reasonable fact finder confronted with
evidence of disagreements between a relatively new subordinate African-American female
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employee and her experienced African-American female supervisor, regarding appropriate
treatment of three African-American applicants (among the several dozens considered), would
hardly be justified under these circumstances in disbelieving the supervisor’s facially valid, race-
neutral reasons for overruling the subordinate’s recommendations. That employees sometimes
disagree on an appropriate course of action is not controversial. Nor is it surprising if the
subordinate’s opinion is overruled by the superior’s. And when the applications of African-
American applicants who suffered unfavorable treatment at the hands of African-American
decision-maker Walker were undisputedly handicapped by other disqualifying facts, the race of
the applicants facially appears to be merely incidental. It follows that Bailey’s expressed
subjective belief that racial bias played a role in the unfavorable treatment carries little weight in
support of her showing that retaliation for protected activity was the real reason she was
terminated.
Nor does the temporal proximity of Bailey’s termination, seven months after she says she
became more vocal in her disagreements with Walker, significantly alter the assessment. It is
well established that temporal proximity alone is insufficient to support an inference of
retaliation. Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010). In Mickey v.
Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008), we reversed summary judgment for the
defendant employer, holding that an employee’s discharge the very day the employer learned of
his protected activity (filing an EEOC claim), coupled with other evidence of retaliatory
motivation, sufficed to create a triable fact issue on pretext. But, “the more time that elapses
between the protected activity and the adverse employment action, the more the plaintiff must
supplement his claim with ‘other evidence of retaliatory conduct to establish causality.’”
Vereecke, 609 F.3d at 400 (quoting Mickey, 516 F.3d at 525).
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Here, Bailey’s termination was several months removed from the last of her
disagreements with Walker. Moreover, Oakwood’s knowledge of the stated reasons for the
termination arose largely in the meantime, i.e., after Bailey’s maternity leave commenced and
after the last of the disagreements. Such an intervening legitimate reason for discipline tends to
defeat any inference of retaliation based on the proximity of the discipline to an earlier event.
Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012) (citing Vereecke,
609 F.3d at 401). Hence, although Bailey has pointed to other grounds for questioning
Oakwood’s stated reasons, they all add up to only negligible support for a finding that retaliation
for protected activity was the real reason for her termination.2
III
For all the foregoing reasons, we find no error in the district court’s award of summary
judgment in favor of defendant Oakwood on all of Bailey’s various federal and state law claims.
The timing of Bailey’s termination was unfortunate and the manner in which the decision was
communicated was clumsy, to say the least—not in keeping with procedures one would expect to
be observed by human resources professionals. Yet, despite the perceived unfairness, and
despite counsel’s vigorous advocacy, Bailey’s claims that Oakwood’s decision was actually
2 Among the items cited are David Squire’s handwritten notes of a telephone conversation he had with Oakwood’s in-house counsel Patrice Baker on March 10, 2014, notes that were inadvertently produced by Oakwood in discovery. R. 48-1, Squire Notes, Page ID 1587. The district court granted Oakwood’s motion to strike the notes from the record as privileged attorney-client communications. R. 56, Opinion, Page ID 1802. The court also denied Bailey’s motion for reconsideration. R. 67, Order, Page ID 1975. Bailey has challenged the ruling on appeal. She argues that Oakwood’s failure to label the document “confidential,” failure to show the disclosure was inadvertent, and failure to timely assert the privilege are all circumstances warranting denial of the motion to strike. The district court’s ruling is well explained in its two orders. In the court’s determinations that the notes reflect privileged communications and that Oakwood did not waive its privilege by the inadvertent disclosure, we find no abuse of discretion. - 13 - Case No. 17-2158, Bailey v. Oakwood Healthcare
motivated by unlawful animus have not been sufficiently substantiated to warrant further
proceedings. The district court’s summary judgment ruling is, accordingly, AFFIRMED.
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