Opinion
Case No. 1:18-cv-00044
07-10-2020
SHARON GOSNEY, Plaintiff, v. PNC BANK, N.A., Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
For close to thirty years, Plaintiff Sharon Gosney worked as a teller for PNC Bank, N.A., ("PNC") until it fired her in May 2016. Plaintiff subsequently sued PNC, alleging various claims that PNC had violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Ohio Civil Rights Act, O.R.C. § 4112, et seq. PNC has now moved for summary judgment on each of Plaintiff's claims, arguing that no reasonable jury could find that Plaintiff was fired for any reason other than her repeated violations of PNC's check-cashing guidelines and poor work-performance. The Court agrees. For the reasons discussed below, PNC is entitled to summary judgment on each of Plaintiff's claims. Accordingly, PNC's Motion for Summary Judgment (Doc. 25) is GRANTED.
FACTS
The following facts are undisputed unless otherwise stated.
I. Plaintiff Sharon Gosney
Plaintiff Sharon Gosney was hired by PNC in 1987 to work as a teller, a position she held throughout her career. (Doc. 37.) In 2005, Plaintiff began working full-time at PNC's Symmes Township location. (Doc. 28.)
As a teller, Plaintiff was responsible for, among other things, cashing checks, processing withdrawals, balancing her cash box and ATM, and making deposits. (Doc. 41.) Plaintiff was also responsible for "adher[ing] to all policies and procedures [and] demonstrating sound judgment within established limits." Plaintiff agrees that, as a teller, there were established rules and a "framework" she was required to follow and that she had little discretion to venture outside those rules. (Id.)
One such policy is PNC's well-established check-cashing guidelines, which tellers like Plaintiff are required to follow in order to protect customers from fraud. (Id.) The check-cashing guideline creates two important safe-guards relevant to this case. First, PNC employees have set "Standard Authority Limits," which vary based on experience and position. (Doc. 26-12.) Employees may not cash checks or approve withdrawals that are above their authority limit without first obtaining authorization from an employee with a higher authority limit. (Doc. 26-18.) PNC's standard authority limit for tellers is $2,000. (Doc. 26-12.) Second, in order to detect potentially fraudulent cashed checks and deposits, PNC has an established system known as the "Fraud Triangle". (Doc. 26-16.) Per the "Fraud Triangle," PNC directs tellers to look for three potential red flags to determine if a particular transaction is legitimate: (1) where the check was issued, (2) that location's relation to the branch location, and (3) where the customer's ID was issued. When cashing checks specifically, if the "customer was not known by a PNC Bank Employee," the Fraud Triangle directs tellers to obtain two forms of identification—one primary and one secondary. (Id.)
PNC's guidelines explain that "[a] violation of PNC Banks' check-cashing guidelines occurs when a teller does not take the appropriate action when cashing a check (e.g., a teller cashes a check over his or her limit without obtaining approval)." (Doc. 26-13.) And "[i]f, in the course of a rolling 12-month period, a teller has 5 check-cashing guideline violations noted, or policy violations totaling $1,000 or more, the teller is subject to termination." If a violation involves a total transaction of $1,000.00 or more, the teller is subject to "automatic probation and possible termination." Moreover, "[e]ach violation is eligible for disciplinary action whether or not the violation resulted in any loss to PNC Bank." (Id.)
Plaintiff was familiar with and trained on these guidelines and admits that a hard copy was readily accessible in the window of each teller station. (Doc. 26 at 54:13-55:8.) She also acknowledges that the check-cashing guidelines are "very important for every employee to follow," even "more experienced people," and employees who violated the guidelines could be terminated. (Id. at 59:15-60:13.) Prior to 2015, Plaintiff had never received any discipline, write-ups, or negative reviews and had been rated as "meets all" expectations for the five preceding years. (Doc. 36-2.) However, Plaintiff also concedes that "[t]hrough my 27 years at the bank, there were any number of people who would break policy and it would be known by a manager and they wouldn't be fired. (Doc. 26 at 192:9-12.)
Things changed, however, in late 2014. Plaintiff requested and was granted FMLA medical leave from November 2014 to January 2015 in order to have surgery to alleviate pain in her hands attributed to her arthritis. (Doc. 36-2.) Plaintiff admits that PNC properly afforded her FMLA leave at that time and that, after returning to work in January 2015, she never submitted another request for FMLA leave. (Doc. 36-1.)
Around the same time that Plaintiff went on leave, Lonnie Beck ("Ms. Beck") became the new branch manager of PNC's Symmes Township location. (Doc. 36-2.) It is undisputed that, upon returning to work in early 2015, Plaintiff engaged in a pattern of violations for which she was repeatedly placed on probation, warned that "immediate and sustained improvement is required," and failure to do so could result in her termination. (Doc. 26-24; Doc. 26-20; Doc. 26-25.) Yet after each probation and warning, Plaintiff continued to violate those same policies. PNC argues that these repeated violations of PNC guidelines were the cause of her termination. (Doc. 25.) Plaintiff, however, argues that Ms. Beck set her up for failure and was targeting her because of her age and disability. (Doc. 37.)
II. PNC's Undisputed Facts
PNC's version of events—all of which is undisputed—is straight-forward. First, Plaintiff was placed on probation in May 2015 for several "buy/sell" errors which Plaintiff admits occurred. (Doc. 26 at 125:24-126:6.) Plaintiff received a corrective action, dated May 21, 2015, which stated "Sharon must show immediate and sustained improvement in adhering to PNC branch procedures...Failure to do so may result in further corrective action up to and including termination of employment." (Doc. 26-24.)
Less than two months later, Plaintiff received a second corrective action for failing to have a red flag conversation per the "Fraud Triangle" and for obtaining only one form of identification. (Doc. 41 at ¶ 10.) Again, she was placed on probation, this time per the recommendation of Employee Relations Specialist Fabiola Johnson. (Doc. 26-30.) Plaintiff's second corrective action also stated that "[i]mmediate and sustained improvement is required. Failure to meet the expectations outlined [ ] above may result in further corrective action up to and including termination of employment." (Doc. 26-20.) Moreover, Ms. Johnson told Ms. Beck directly that "you must say to Sharon that she will be terminated if she does not show immediate and sustainable improvement." (Doc. 26-30.) Plaintiff has accepted responsibility for the incident and admits that there were things she could have done better. (Doc. 26 at 122:21-123:6.)
However, Plaintiff continued to violate PNC's guidelines. On February 23, 2016 Plaintiff completed two withdrawals without approval, one for $3,850.00 and another for $4,000.00. (Doc. 41.) On March 2, 2016, Plaintiff completed a transfer in the amount of $400,000.00 without approval. And on March 7, 2016, Plaintiff cashed a check in the amount of $5,641.30 without approval. On March 9, 2016, PNC placed Plaintiff on her third probation in less than a year. (Doc. 26-25.) Plaintiff received a third corrective action that stated, "you have not demonstrated the level of commitment to your job necessary to meet our expectations... Immediate and sustained improvement is required. Failure to meet the expectations outlined [ ] above may result in further corrective action up to and including termination of employment." (Doc. 26-25.)
Plaintiff admits that she was placed on probation and that she conducted each transaction, but disputes that these transactions were over her limit at the time they were performed. (Doc. 36-1 at ¶ 11.) However, this distinction is immaterial as Plaintiff testified that, between July 2015 and March 9, 2016, she took actions that were "in violation of the check-cashing guidelines on five different occasions," and that these violations "came after [her signing] authority was reduced to $2,000.00." (Id. at ¶ 12.)
While still on probation, Plaintiff admits that she processed an additional seven transactions in violation of PNC's guidelines and procedures. (Doc. 41 at ¶ 13.) These violations are listed below:
• On March 11, 2016, she cashed a check in the amount of $2,500.00.
• On March 17, 2016, she cashed a check in the amount of $3,762.00.
• On March 21, 2016, she cashed a check in the amount of $5,000.00.
• On March 22, 2016, she cashed a check in the amount of $2,200.00.
• On March 24, 2016, she cashed a check in the amount of $4,461.75.
• On March 29, 2016, she cashed a check in the amount of $9,325.00.
Although Defendant asserts, and Plaintiff admits, that this date was March 29, 2018, the Court assumes that the proffered date was meant to be in 2016 and therefore makes that correction.
• On April 8, 2016, she cashed a check in the amount of $3,308.74.
Plaintiff does not dispute that she engaged in these transactions nor does she dispute that the transactions involved checks that were beyond her authority limit. (Id. at ¶ 14.) Ms. Johnson investigated these infractions and, after consulting with Ms. Beck, they mutually agreed that Plaintiff should be terminated. On May 31, 2016, Plaintiff was fired.
III. Plaintiff's Version of Events
Plaintiff, however, testified that she felt her "job was threatened from the moment it was announced Ms. Beck would become the Symmes Township manager." (Doc. 26-27.) In Plaintiff's opinion, Ms. Beck targeted her because of her age, disability, or for seeking FMLA leave, and "went out of her way to fire [Plaintiff] and replace her with one of the numerous 20-year-olds she hired." (Doc. 37.) In support of her argument, Plaintiff relies on the following facts.
During Plaintiff's initial conversation with Ms. Beck, which occurred prior to her returning from FMLA leave, Ms. Beck stated that when she was manager at her previous branch, "she cleared out all the employees." (Doc. 26-27.) When Plaintiff returned to work, Ms. Beck began keeping track of her absences and certain performance issues on a "special" form which she created. Ms. Beck, however, testified that she used the same absence tracking tool for all tellers. (Doc. 32 at 162:2-4.) At some point shortly thereafter, Plaintiff approached Ms. Beck and indicated that she would need to miss a specific day of work for a follow-up appointment with her doctor regarding her hand surgery. (Doc. 37.) Ms. Beck responded by simply saying "no." Plaintiff then went to HR, who confirmed that she could indeed miss work for the appointment by using one of her sick days. When Plaintiff told Ms. Beck that HR had confirmed that she could take the day off, Ms. Beck responded that it was not Plaintiff's role to "tell her what" she was going to do, that HR was "wrong," and that Plaintiff was "disrespecting" her. (Id.) Regardless, Plaintiff admits that Ms. Beck ultimately allowed her to take the day off. (Doc. 26 at 159:12-14.)
In July 2015, Ms. Beck wrote in her mid-year "HumanSigma Action Planning" memorandum ("July Memo") that Plaintiff "is currently on two observations per week and is starting her weekly touch base/coaching to improve in many areas." (Doc. 35-2.) This July Memo was distributed amongst other PNC employees, which Plaintiff alleges was "humiliating" and inconsistent with PNC's own policies. (Doc. 37.) In response, Plaintiff submitted a five-page, formal complaint to PNC's HR department ("August 2015 Complaint"). (Doc. 37.) In the August 2015 Complaint, Plaintiff stated that she had been "threatened and harassed by [Ms. Beck] in an attempt to get me to leave," and that Ms. Beck has "set [her] up for failure." (Doc. 26-27.) Amongst other complaints raised, Plaintiff alleged that Ms. Beck was unethical, had anger management issues, had asked her if she was "burnt out," and had circulated her name and observation plan to other employees in the July Memo. Plaintiff also stated that she is "not the only employee that Beck treats in this manner," as she has "witnessed [Beck's] actions against a number of employees." Plaintiff stated that "[Beck] is the reason that five employees have left and three new employees are on their way out the door." (Id.) Plaintiff later testified that the individuals who allegedly quit because of Ms. Beck were all younger employees in their twenties and thirties. (Doc. 25 at 150:9-18.)
PNC's Human Resources employee David Snow investigated Plaintiff's complaint and, through the course of his investigation, interviewed several people, including Plaintiff, Ms. Beck, Ms. Beck's supervisor, two other tellers, and an auditor. (Doc. 26-32.) Mr. Snow made several important conclusions. First, he determined that the "thrust" of Plaintiff's complaint was that Ms. Beck shared Plaintiff's private performance information with other employees by circulating the July Memo. (Doc. 33 at 58:18-67:21; Doc. 26-32.) He concluded that Ms. Beck's inclusion of Plaintiff's name was inadvertent but merited a verbal warning. (Id.) Second, Mr. Snow determined that Plaintiff's second allegation was for "harassment, not protected class" and did not select the box for "discrimination." (Doc. 35-2; Doc. 33 at 56:21-57:12.) This is because Mr. Snow did not recall that the "initial allegation or concern at all" was based on Plaintiff's age. (Doc. 33 at 57:1-12.) Ultimately, he found that the allegation of harassment was unfounded. (Doc. 26-32.)
Upon conclusion of the investigation, Plaintiff alleges that she felt that her behavior became subject to even stricter scrutiny. (Doc. 37.) In her opinion, this eventually led to her termination in May 2016.
In January 2018, Plaintiff sued PNC under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Ohio Civil Rights Act, O.R.C. § 4112, et seq. (Doc. 1.) PNC moves for summary judgment on each of Plaintiff's claims. (Doc. 25.)
LAW
Courts must grant summary judgment if "the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (citing Fed. R. Civ. P. 56(c)). Once a defendant has met its initial burden of showing that no genuine issue of material of fact remains, the plaintiff must present "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To do so, the plaintiff must present "significant probative evidence ... on which a reasonable jury could return a verdict" in their favor. Chappell v. City of Cleveland, 585 F.3d 901, 913 (6th Cir. 2009).
In a motion for summary judgment, "a court must view the facts and any inferences that can be drawn from those facts ... in the light most favorable to the nonmoving party." Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.2007) (internal quotation marks omitted). This requirement, however, does not mean that the court must find a factual dispute where record evidence contradicts Plaintiff's wholly unsupported allegations. "The 'mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). In order to defeat the motion for summary judgment, the non-moving party must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Although reasonable inferences must be drawn in favor of the opposing party, inferences are not to be drawn out of thin air. To demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). It is the Plaintiff's burden to point out record evidence to support her claims. "[T]he Court has no duty when deciding a motion for summary judgment to scour the record for evidence that supports a plaintiff's claims." Abdulsalaam v. Franklin County Bd. Of Com'rs, 637 F.Supp.2d 561, 576 (S.D.Ohio 2009) (citing Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 379 (6th Cir.2007)).
As the relevant sections of the Ohio Civil Rights Act, O.R.C. § 4112, et seq. ("O.R.C. § 4112") require the same analysis as the analogous federal law, the Court analyzes both sets of claims together. See Blizzard v. Marion Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (age discrimination claims brought under O.R.C. § 4112 "are analyzed under the same standards as federal claims brought under the ADEA.") (internal citations omitted); Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201 (6th Cir. 2010) (applying ADA analysis to claims made pursuant to O.R.C. § 4112.02); Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501 (6th Cir. 2016) (federal law provides the applicable analysis for reviewing retaliation claims brought under O.R.C. § 4112).
ANALYSIS
Plaintiff alleges that PNC terminated her employment because of her age and disability, retaliated against her for both her August 2015 Complaint and her November 2014 FMLA leave request, and denied her leave for which she was entitled under the FMLA. PNC, however, argues that it is entitled to summary judgment on all of Plaintiff's claims. (Doc. 25.) Each of Plaintiff's claims are discussed in turn below. I. Wrongful Termination Under the ADA, ADEA, and ORC § 4112
As the Sixth Circuit has stated, "an employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason." Miles v. S. Cent. Human Res. Agency, Inc., 946 F.3d 883, 886 (6th Cir. 2020) (internal citations omitted). Here, PNC argues it is entitled to summary judgment on Plaintiff's wrongful termination claims because she was terminated, not because of age or disability, but rather because of her numerous violations of PNC's check-cashing guidelines. The Court agrees.
When a plaintiff relies on circumstantial evidence to prove wrongful termination under the ADEA, the ADA, or Ohio state-law—as Plaintiff does here—Courts "use the familiar McDonnell-Douglas burden-shifting framework." E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015); see also Imwalle v. Reliance Med. Prod., Inc., 515 F.3d 531, 544 (6th Cir. 2008) (McDonnell Douglas framework applies to claims brought under the ADEA and Ohio state-law); Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008) (McDonnell Douglas framework applies to ADA claims).
Under this three-step analysis, the plaintiff must first show a prima facie case of discrimination. If the plaintiff can do so, then the defendant must articulate a nondiscriminatory reason for its action. If the defendant does, then the plaintiff must "prove that the given reason is pretext for retaliation." Ford Motor, 782 F.3d at 767. The ultimate burden of persuasion, however, remains at all times with the plaintiff. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Browning v. Dep't of the Army, 436 F.3d 692, 695 (6th Cir. 2006).
A. Prima-Facie Case
For these purposes, the Court will assume that Plaintiff has shown a prima-facie case under both the ADEA and the ADA. Her burden at this stage is "not onerous" and "poses a burden easily met." Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 813 (6th Cir. 2011) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). PNC's only argument to the contrary is that Plaintiff was not qualified for her position because of her repeated violations of the check-cashing guidelines. However, a defendant's justification for discharge cannot be used as evidence that the plaintiff is not qualified for the position. See White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 242 (6th Cir. 2005) ("the case law is clear that a court must evaluate whether a plaintiff established his qualifications independent of the employer's proffered nondiscriminatory reasons for discharge"). "To do so would bypass the burden-shifting analysis and deprive the plaintiff of the opportunity to show that the nondiscriminatory reason was in actuality a pretext designed to mask discrimination." Wexler v. White n s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir.2003) (en banc).
See Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 317 (6th Cir. 2007) (elements of a prima facie case of age discrimination are that plaintiff was: (1) 40 years or older, (2) qualified for the particular position, (3) subject to an adverse employment action, and (4) replaced by a younger individual); Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir. 2014) (to prove a prima facie case of disability discrimination, a plaintiff must show that (1) she is disabled, (2) she is otherwise qualified to perform the essential functions of a position, with or without accommodation, and (3) she suffered an adverse employment action because of her disability). --------
Rather, at the prima facie stage, "a court should focus on a plaintiff's objective qualifications to determine whether he or she is qualified for the relevant job." Id. at 575. A plaintiff can satisfy this requirement "by presenting credible evidence that his or her qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field." Id. at 575-76. "Although the specific qualifications will vary depending on the job in question, the inquiry should focus on criteria such as the plaintiff's education, experience in the relevant industry, and demonstrated possession of the required general skills." Id. at 576.
Here, Plaintiff worked as a teller at PNC for 29 years and had previously received positive reviews. This is enough to satisfy the "qualification" prong of a prima facie case. Geiger v. Tower Auto., 579 F.3d 614, 624 (6th Cir. 2009) (plaintiff was qualified for the position because he had already served in that role, had 27 years of experience, and had previously received positive reviews).
B. Legitimate Non-Discriminatory Reason
Under the second step of McDonnell-Douglas, the burden shifts to PNC to articulate a legitimate nondiscriminatory reason for Plaintiff's termination. PNC has proffered such a reason—Plaintiff's continuous violations of PNC's check-cashing guidelines. See Harper v. City of Cleveland, 781 F. App'x 389, 396 (6th Cir. 2019) ("Employee misconduct and poor performance are legitimate reasons for an adverse-employment action."). As discussed, all of these violations were well documented by PNC, and most of which Plaintiff admits occurred.
C. Pretext
Lastly, the burden shifts back to Plaintiff, who must "prove that the given reason is pretext for retaliation." Ford Motor, 782 F.3d at 767. "To demonstrate pretext, a plaintiff must show both that the employer's proffered reason was not the real reason for its action, and that the employer's real reason was unlawful." Id. (citing St. Mary's Honor Center v. Hicks, 509 U.S 502, 515 (1993)) (emphasis in original). Thus, in order to avoid summary judgment, Plaintiff must present evidence from which a reasonable jury could find that (1) her numerous check-cashing violations were not the real reason that PNC terminated her, and (2) either her age or her disability were, in fact, the "but-for" cause of her termination. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir. 2012) ("but-for" causation standard applies to both ADEA and the ADA).
Here, Plaintiff fails to prove either. First, no reasonable jury could find that PNC terminated Plaintiff for a reason other than her poor performance. See e.g. Ford Motor, 782 F.3d at 767. PNC's guidelines are clear that "[i]f, in the course of a rolling 12-month period, a teller has 5 check-cashing guideline violations noted, or policy violations totaling $1,000 or more, the teller is subject to termination." (Doc. 26-13.) Plaintiff admits that she was familiar with the guidelines; had been trained on them; that they are "very important for every employee to follow," even for more "experienced people;" and that employees who violated them could be terminated. (Doc. 26 at 59:15-60:13.) Yet Plaintiff admits that, between July 2015 and March 9, 2016, she took actions that were "in violation of the check-cashing guidelines on five different occasions...after her signing authority was reduced to $2,000." (Doc. 36-1 at ¶ 12.) As a result, Plaintiff was placed on probation and told that "immediate and sustained improvement" was required and failure to do so "may result in. termination of employment." (Doc. 26-25.) This was Plaintiff's third probation in eleven months, and the third time (at least) that PNC had given her such a warning. (Doc. 26-24; Doc. 26-20; Doc. 26-25.) Most detrimental to her case, Plaintiff further admits that, while on probation, she violated the check-cashing guidelines an additional seven times in 28 days, culminating in her termination. (Doc. 36-1 at ¶ 13.) Moreover, each of Plaintiff's violations (from February 2015-April 2016) were for transactions over $1,000 and thus, under PNC's check-cashing guidelines, each constitutes independent grounds for termination.
In response, Plaintiff relies on two types of evidence to prove pretext. First, Plaintiff cites statements she made during her deposition that demonstrate she "felt she was being targeted because of her health and her age." (Doc. 37.) However, it is well- settled that a "plaintiff's conclusory 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 (6th Cir. 1992).
Second, Plaintiff points to the following circumstantial evidence. She first argues that PNC treated a 26- or 27-year-old employee named Jessica more favorably than her. Specifically, Plaintiff claims that PNC promoted Jessica to Teller Supervisor despite the fact that she had made five buy/sell errors. This argument is flawed. Under Sixth Circuit precedent, a proper comparator "need not be identical in every way... [but] the plaintiff [still] must show that the comparator is similarly situated in all relevant respects and has engaged in acts of comparable seriousness." Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 304 (6th Cir. 2016).
Here, Jessica does not qualify as a proper "comparator" for the following reasons. First, Jessica is not similarly situated to the Plaintiff; Jessica has significantly less job experience (two and a half years as of the date of Ms. Beck's deposition) and her mistakes occurred while she was still a relatively new employee. See Campbell v. Hamilton County, 23 Fed.Appx. 318, 325 (6th Cir. 2001) (holding that differences in job title and responsibilities, experience, and disciplinary history may establish that two employees are not similarly situated); Tennial v. United Parcel Service, Inc., 840 F.3d 92 (6th Cir. 2016) (same). Additionally, Jessica's errors did not go unnoticed. When Jessica committed the buy/sell errors, she first received coaching, then a verbal warning, then a written warning, and was eventually placed on probation, the same as Plaintiff. (Doc. 32 at 117:19-122:19.) Moreover, the misconduct that Jessica engaged in was not similar to that of the Plaintiff's. While Jessica committed five buy/sell errors, Plaintiff committed (by the Court's count) at least two buy/sell errors, one "Fraud Triangle" violation, completed a $400,000 transfer without approval, had ten check-cashing violations (if not more), seven of which occurred over a 28-day span while still on probation—a probation that was her third in less than a year. In fact, when asked if any other employees had engaged in the number of check-cashing violations as her but were not terminated, Plaintiff responded, "No. I mean, I don't know anybody. I don't know anybody that did check cashing violations." (Doc. 26 at 189:2-5.)
Second, Plaintiff points to various comments Ms. Beck made as evidence of pretext. This includes Ms. Beck's January 2015 comment that she had "cleared out all the employees" at her previous branch, her criticisms of Plaintiff for missing work, or her comment that Plaintiff was "burnt out" in her July 2015 mid-year review. However, none of these comments relate to Plaintiff's age or disability and all of them were made too long before her termination (ten months or more) to prove pretext. See Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993) (comments made eight months before layoff, such as being "too old," are too abstract, irrelevant, and prejudicial to support a finding of age discrimination); Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (statements that refer to years of service are not direct evidence of discrimination); Briggs v. Potter, 463 F.3d 507, 515 (6th Cir. 2006) (same). See also Chamberlain v. Bissell Inc., 547 F. Supp 1067, 1077 (W.D. Mich. 1982) (referring to an employee as "burned out" is not evidence of age discrimination).
Third, Plaintiff relies heavily on the fact that Ms. Beck kept track of Plaintiff's absences on the same form where she tracked her errors. But Ms. Beck testified that she uses the same absence tracking tool for all tellers, not just Plaintiff. (Doc. 32 at 162:2-4.)
Fourth, Plaintiff argues that Ms. Beck singled her out in the July Memo by stating that Plaintiff "is currently on two observations per week and is starting her weekly touch base/coaching to improve in many areas." (Doc. 35-2.) However, this comment is not indicative of pretext since (1) it was made ten months prior to her termination and is thus too attenuated, (2) it does not refer to Plaintiff's age or disability, (3) it was based on Plaintiff's consistently poor performance, and (4) PNC investigated the comment, concluded that Ms. Beck included it inadvertently, and issued Ms. Beck a verbal warning as a result. Although this statement may have been humiliating and even, perhaps, contrary to PNC policy, it does not show disability or age discrimination.
Fifth, Plaintiff argues that "PNC's utter failure to investigate" her August 2015 Complaint is also evidence of animus and pretext. However, this argument is flawed both from a factual and legal standpoint. From a factual standpoint, PNC did investigate Plaintiff's complaint. Relations Investigator David Snow interviewed several people, including Plaintiff, Ms. Beck, Ms. Beck's supervisor, two other tellers, and an auditor. (Doc. 26-32.) He concluded that Plaintiff's complaint did not allege discrimination based on age, disability, or any other protected class, but contained only an unfounded claim for harassment. Plaintiff admits that the investigation took place. She merely disagrees with the result. But such "conclusory allegations are not sufficient to withstand a motion for summary judgment." McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990) (held that plaintiff does not raise a factual dispute simply by alleging that the defendant made a poor business decision which plaintiff disagrees with.). It is well-established that an "employer's pre-termination investigation need not be perfect in order to pass muster." Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 591 (6th Cir. 2014) (citing Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir.2012). The key inquiry is instead "whether the employer made a reasonably informed and considered decision before taking an adverse employment action." Id. To rebut an employer's pre-termination investigation, "plaintiff must offer some evidence of an error on the part of the employer that is too obvious to be unintentional." Id. (internal quotations omitted). Here, Plaintiff has offered none.
Simply put, Plaintiff has offered insufficient evidence to rebut PNC's legitimate non-discriminatory reason for her termination. Plaintiff admits as much. When asked if she had evidence of any statements that Ms. Beck (or anyone else at PNC) made regarding her age, Plaintiff responded, "No." (Doc. 41 at ¶ 20.) And when asked if she had any evidence that PNC terminated her because of an alleged disability, Plaintiff responded "I don't know." (Id.) This lack of evidence dooms Plaintiff's case.
II. Retaliation
Plaintiff's retaliation claims are analyzed using the same McDonnell-Douglas burden-shifting framework discussed above. See Ford Motor, 782 F.3d at 767.
To establish a prima facie case of retaliation, Plaintiff must show that (1) she engaged in protected activity under the applicable act, (2) PNC knew she availed herself of that right, (3) she suffered an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. See Baker v. Windsor Republic Doors, 414 F. App'x 764, 776 (6th Cir. 2011) (ADA); Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007) (ADEA); Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 381 (6th Cir. 2017) (FMLA).
Plaintiff brings two claims for retaliation. First, Plaintiff contends that PNC retaliated against her for submitting her August 2015 Complaint. Second, she argues that PNC retaliated against her for taking leave under the FMLA. Each claim is discussed in turn below.
A. Plaintiff's Retaliation Claims Under ADA, ADEA, and ORC 4112
PNC argues that it is entitled to summary judgment on Plaintiff's age and disability retaliation claims because (1) Plaintiff's August 2015 Complaint does not constitute protected activity, and (2) Plaintiff cannot demonstrate a causal connection between her complaint and her termination. PNC is correct in both regards.
As to PNC's first point, it is well established that to constitute protected activity, a plaintiff must complain about unlawful discriminatory employment practices. See Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989) ("a vague charge of discrimination in an internal letter or memorandum is insufficient to constitute opposition to an unlawful employment practice"); see also Weaver v. Ohio State Univ., 71 F. Supp. 2d 789, 793-94 (S.D. Ohio 1998) ("[c]omplaints concerning unfair treatment in general which do not specifically address discrimination are insufficient to constitute protected activity"), aff'd, 194 F.3d 1315 (6th Cir. 1999); Fox v. Eagle Distrib. Co., 510 F.3d 587, 592 (6th Cir. 2007) ("Because [plaintiff]'s discussion with [employer] did not concern alleged acts of age discrimination, he has failed to show that he engaged in protected activity under the ADEA.").
Nowhere in the August 2015 Complaint does Plaintiff accuse anyone of age or disability discrimination. (Doc. 26-27.) Instead, she complains only of general "threats" and "harassment." When PNC's investigator reviewed the complaint, he therefore found that it constituted a general allegation of harassment—not discrimination. (Doc. 26-32; Doc. 33 at 56:21-57:12.) In sum, no reasonable juror could find that the August 2015 Complaint alleged discriminatory conduct.
Second, Plaintiff has failed to demonstrate a causal connection between her August 2015 Complaint and her termination in May 2016. Plaintiff attempts to rebut this argument by relying on two claims: (1) PNC applied "heightened scrutiny" to her work and (2) the temporal proximity between her August 2015 Complaint and her termination the following May. As to Plaintiff's first point, the evidence does not show that she was held to a higher standard or heightened scrutiny than other employees. In fact, the evidence tends to show the opposite. Ms. Beck held all her employees to the same high standard. Plaintiff admits as much in her August 2015 Complaint when she complained that Ms. Beck treated other employees poorly, many of whom were in their twenties and thirties.
Moreover, the temporal proximity between her August 2015 Complaint and her termination the following May is not enough to prove a causal connection. "Although 'suspicious timing is a strong indicator of pretext,' it is so only 'when accompanied by some other, independent evidence' of discrimination or retaliation." Parkhurst v. Am. Healthways Servs., LLC, 700 F. App'x 445, 451 (6th Cir. 2017) (quoting Seeger, 681 F.3d at 285. In Parkhurst, the Sixth Circuit held that a "four-month lapse between [plaintiff's] FMLA leave and her termination, when considered alongside her documented underperformance, is hardly 'suspicious.'" Id. It further held that "even if considered so, that fact alone cannot support an inference of discriminatory or retaliatory motive given the lack of other circumstantial evidence in this case." Id. (citing Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986) ("The mere fact that [plaintiff] was discharged four months after filing a discrimination claim is insufficient to support an interference of retaliation.")).
Here, Plaintiff was fired nine months after her August 2015 Complaint. All of the circumstantial evidence Plaintiff relies on occurred prior to her lodging the complaint and, as discussed above, is not relevant and is too far attenuated. Moreover, it is well documented that in the nine months after she filed her complaint, Plaintiff repeatedly violated PNC's check-cashing guidelines. Simply put, this is not enough to establish a causal connection.
Even if Plaintiff could establish a prima-facie case of retaliation, PNC has proffered a legitimate nondiscriminatory reason for Plaintiff's termination. And, as described above, Plaintiff has failed to proffer evidence demonstrating that PNC's reason was pretext. For these reasons, PNC is also entitled to summary judgment on Plaintiff's age and disability retaliation claims.
B. Plaintiff's Retaliation Claim Under FMLA
Considering the totality of the evidence, a reasonable juror could not infer that PNC terminated Plaintiff in retaliation for exercising her FMLA rights. First, Plaintiff cannot establish a causal connection between her November 2014 FMLA leave and her termination in May 2016. Even if there was such a connection, in order to prevail on this claim, she must produce enough evidence from which a jury could reasonably reject PNC's explanation of why it fired her. Here, Plaintiff "does not dispute that PNC properly afforded her FMLA leave" in November 2014. (Doc. 37.) And she admits that, after returning to work, she never submitted any other requests for FMLA leave to anyone at PNC. (Doc. 41 at ¶¶ 15, 20.) Although Plaintiff alludes to various comments Ms. Beck made regarding her "absenteeism," Plaintiff has presented no evidence that ties her FMLA leave with her termination some nineteen months later. Plaintiff's termination occurred after she returned to work, without any restrictions, after she was repeatedly placed on probation for violating PNC's check-cashing guidelines, warned that repeated violations could result in her termination, yet continued to do so.
Accordingly, PNC is also entitled to summary judgment on Plaintiff's claim of retaliation under the FMLA.
III. FMLA Interference Claim
In addition to the "retaliation" theory of recovery discussed above, the FMLA provides a second theory of recovery for "interference." Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 432 (6th Cir. 2014). The "interference" theory is based on 29 U.S.C. § 2615(a)(1), which states that employers cannot "interfere with, restrain, or deny the exercise of or attempt to exercise, any right provided ..." by the FMLA. Id.
In order to state an interference claim pursuant to the FMLA, Plaintiff must prove by a preponderance of the evidence that: (1) she was an eligible employee; (2) PNC was an employer subject to the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave notice of her intention to take FMLA leave; and (5) PNC improperly denied her FMLA benefits. Id.
Although the McDonnell Douglas burden-shifting framework applies to FMLA interference claims, it need not be analyzed fully here because Plaintiff fails to establish a prima facie case. Plaintiff admits that when she sought FMLA leave in November 2014 for hand surgery, PNC granted that request. (Doc. 26 at 196:5-17; Doc. 36-1 at ¶ 15.) Plaintiff further admits that, after returning to work in January 2015, she never submitted any other requests for FMLA leave to anyone at PNC. Id. Thus, by her own admissions, Plaintiff demonstrates that she cannot establish the third or fourth prongs of a prima facie interference case. Accordingly, Plaintiff's FMLA interference claim fails as a matter of law. See Gates v. U.S. Postal Service, 502 Fed. Appx. 485, 488 (6th Cir. 2012).
CONCLUSION
For the reasons provided above, it is hereby ORDERED that Defendant PNC's Motion for Summary Judgment (Doc. 25) is GRANTED. Accordingly, the Clerk of Court shall terminate this case on the Court's active docket.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
By: /s/_________
JUDGE MATTHEW W. McFARLAND