UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BONNIE BRADLEY,

Plaintiff, Case No. 14-13364

v.

HON. DENISE PAGE HOOD

RHEMA-NORTHWEST 

OPERATING, LLC,

Defendant.

_________________________________/

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT [Docket No. 25]

Now before the Court is a Motion for Summary Judgment filed on June 17,

2015 by Defendant Rhema-Northwest Operating, LLC (“Defendant”). [Dkt. No. 25]

Plaintiff Bonnie Bradley (“Plaintiff”) filed a Response to the Motion [Dkt. No. 27,

filed July 8, 2015], to which Defendant filed a Reply. [Dkt. No. 30, filed July 24,

2015] A hearing on the Motion for Summary Judgment was held on July 29, 2015.

I. BACKGROUND

Plaintiff is a 65-year old female nurse who began working for TenderCare

(Michigan), Inc. in May 2002. When Defendant purchased TenderCare (Michigan),

Inc. in January, 2007, Defendant continued to employ Plaintiff as a Charge Nurse,

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and Plaintiff worked at “The Manor.” Defendant terminated Plaintiff on May 8,

2014. In this cause of action, Plaintiff asserts that Defendant discriminated against

her on the basis of age, in violation of the Age Discrimination in Employment Act of

1967, as amended (the “ADEA”), and gender, in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”). 

On a motion for summary judgment, all facts must be construed in favor of the

non-moving party, Plaintiff. In reviewing Plaintiff’s response brief, she offers little

admissible evidence. Plaintiff’s “facts” generally consist of inadmissible hearsay and

conclusory statements unsupported by testimony or documentation. For example,

Plaintiff states that she “testified that she heard Management Nurses Natalie

Robinson, Ms. James and Sonja, sic (Sonya) Watkins talking about how

Administrator Tim Frank (“Frank”) made those discriminating statements in a

morning meeting about wanting to get rid of old people because they are a liability

and they also told [Plaintiff] that.” Dkt. No. 27, PgID 602. See also Dkt. No. 27, PgID

599, 600, 601. Similarly, Plaintiff indicates two other employees of Defendant

“testified they heard employees of the Manor complaining that male employees were

being treated better than female nurses and heard complaints about males not being

disciplined for the same things that females would do [and be disciplined for].” Dkt.

No. 27, PgID 599-600. Plaintiff also submits an affidavit from Kerry High, a former

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employee of Defendant, who states that a third former employee was told by the

Assistant Director of Nursing at the Manor that the third employee was “too old to be

working and that she needed to go home to sit down, and that she didn’t need to be

working.” Dkt. No. 27, PgID 603 (Paragraph 7). 

There is no deposition testimony – or even an affidavit – from any of the

persons who purportedly heard Defendant’s employees make the alleged

discriminatory statements. Instead, Plaintiff has proffered only inadmissible hearsay. 

Likewise, when Plaintiff has offered affidavits, the affiant has averred only a

conclusory statement or opinion such as: (1) “Based on what I heard and saw at the

Manor, I came to the conclusion that they were discriminating against their

employees because of their old age, including [Plaintiff],” Dkt. No. 27, PgID 599; (2)

“I also witnessed [Plaintiff] being treated differently than the other younger nurses

in her position,” Dkt. No. 27, PgID 604; or (3) averring that Plaintiff “went from

being treated well by management to being picked on for no reason other than what

I came to conclude was her old age. Management and the Administration would

never listen to [Plaintiff]’s complaints about her treatment.” Dkt. No. 27, PgID 603

(Paragraph 10).

Plaintiff also failsto proffer any recordsthat demonstrate the age and/or gender

of employees hired or fired by Defendant, such that the Court or a jury could consider

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Defendant’s employment practices and patterns. The best evidence Plaintiff offers

is one paragraph of the affidavit of Kerry High, who averred that:

The Manor then terminated Ms. Lee [Emogene Lee] and then brought

her back after they terminated [Plaintiff]. They also brought back

another older nurse who they terminated named Ms. Eula Mae Harris. 

They brought them back so they would not look like they were

discriminating against their employees based on their age.

Dkt. No. 27, Ex. 1 (Paragraph 8). The last sentence is a conclusory opinion, but the

first two sentences might constitute circumstantial evidence of age discrimination –

if there was a record demonstrating those firings and hirings occurred and the ages

of Ms. Lee and Ms. Harris were known. Plaintiff has offered no documents or

testimony that demonstrate when Ms. Lee (age 73) and Ms. Harris (age 61) were

terminated or rehired. Defendant has offered evidence that: (1) Ms. Lee resigned in

October 2012 and rehired in December 2013, months before Plaintiff wasterminated;

and (2) Ms. Harris quit in April 2014 and was rehired in July 2014.

Defendant set forth the following facts in its brief in support of its Motion for

Summary Judgment, and Plaintiff has not objected to any of them. On June 11, 2009,

long after Defendant had purchased Tendercare (Michigan), Inc., Plaintiff signed an

Acknowledgment of receipt of Defendant’s employee handbook. The handbook

identifies three categories of work rules. Category I work rules are less serious than

those in Categories II and III, and they may be treated with progressive discipline,

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unless they “are recurring or considered serious enough under the circumstances to

warrant advanced disciplinary action up to and including termination.” Dkt. No. 25,

Ex. 6 at PgID 500. Category II work rules are “of a serious nature and will result in

a Final Warning for the first violation even though a Written Warning #1 or Written

Warning #2 has not been issued.” Id. at PgID 501. Category III work rules “are most

serious and violations willsubject an employee to immediate suspension without pay

pending an investigation and, if verified, will lead to termination.” Id.

Defendant’s handbook provides for discipline as follows:

Progressive discipline simply meansthat lessseriousinfractions will be

treated as such; however, should job performance or behavioral

problems persist, disciplinary action will progress tomore serioussteps.

While most infractions start with a Written Warning #1, some serious

infractions warrant a Final Wa[r]ning for the first infraction and, for

very seriousinfractions, Suspension/Discharge will be the firststep. The

employee’ssupervisor will determine the appropriate level of discipline

in each case and will acknowledge mitigating circumstances where they

apply. The progressive steps are:

1. Written Warning #1 - This is the first step in any Category I

work rule violation. The supervisor will discussthe problem with

the employee and document on the Disciplinary Action Record.

A Written Warning #1 does not mean that the employee's job is

in immediate danger; however, it does mean that the problem

must be corrected.

2. Written Warning #2 - This is the second step for any

additional work rule violation of Category I. A Written Warning

#2 will be used only if Written Warning #1 was issued in the past

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twelve (12) months. The supervisor will discuss the infraction

with the employee and complete a Disciplinary Action Record.

3. Final Warning - A Final Warning is issued if a Written

Warning #2 was issued within the past twelve (12) months for a

Category I work rule violation or as the first step for a Category

II work rule violation. The supervisor and/or department head

will review the employee's file to determine the appropriate level

of discipline. After such determination is made, the supervisor

will discuss the problem with the employee. A Disciplinary

Action Record must be completed. The problem must be

corrected immediately or the employee will be subject to

discharge.

4. Suspension/Discharge - A Suspension/Discharge will be the

fourth step for any additional Category I work rule violation; the

second step in any additional Category II work rule violation; or

the first step for a very serious Category III work rule violation.

An employee may be “suspended” pending investigation and

depending upon the results of the investigation, the employee may

be discharged.

a. Suspension is not intended as a punitive step in the

progressive discipline process. Employees may be

suspended, without pay, to allow enough time to gather

information enabling facility management to make an

informed decision based upon all the facts.

b. If an employee is suspended and there are insufficient

grounds for any form of disciplinary action, the employee

will be brought back to work, and the employee will be

paid for any scheduled time missed as a result of the

suspension.

c. If an employee is suspended and there are sufficient grounds

for a Final Warning instead of termination, the employee will be

brought back to work and issued a Final Warning. Any scheduled

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time missed as a result of the suspension may be paid only at the

manager's discretion.

Dkt. No. 25, Ex. 6 at PgID 502-03. “Disciplinary action records are active for 

twelve (12) months, except those relating to allegations of patient neglect or abuse,

which will remain in effect indefinitely. Notices older than 12 months will no longer

be used against an employee but will remain in the employee[’]s personnel file[.]” Id.

at PgID 502. 

On July 22, 2013, Plaintiff received a first written warning for providing

medications to a resident’s family against medical authorization (a Category I work

rule). Plaintiff received a second written warning on September 27, 2013 for

neglecting resident care duties when she gave a resident 30 mg of morphine instead

of the required 15 mg (a Category III work rule for which she could have been fired). 

On February 17, 2014, Plaintiff and another employee had an “inappropriate

conversation” in a resident area (a Category I work rule). Both Plaintiff and the other

employee were suspended pending an investigation. Due to the two prior disciplinary

incidents, Defendant also gave Plaintiff a final warning for this incident. In April

2014, Plaintiff worked overtime without the required prior authorization three times

in one week (a Category I work rule). LaVania Fudge, Defendant’s Director of

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Nursing and Plaintiff’s supervisor (“Fudge”), met with the Human Resources

Coordinator shortly thereafter, and Defendant terminated Plaintiff on May 8, 2014. 

Defendant claims to have terminated Plaintiff for the foregoing violations,

consistent with the discipline process set forth in the handbook. Plaintiff counters

that: (a) Fudge authorized Plaintiff’s overtime; and (b) Defendant was motivated by

Plaintiff’s gender and age when it decided to terminate her, i.e., Defendant asserted

the disciplinary events as a pretext to discriminate against her.

II. STANDARD OF REVIEW

Summary judgment is appropriate in cases where “the pleadings, depositions,

answersto interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). The moving party bears the burden of demonstrating that summary

judgment is appropriate. Equal Employment Opportunity Comm’n v. MacMillan

Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974). The Court must

consider the admissible evidence in the light most favorable to the nonmoving party. 

Sagan v. United States of Am., 342 F.3d 493, 497 (6th Cir. 2003). 

“At the summary judgment stage, facts must be viewed in the light most

favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those

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facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added). To create a

genuine issue of material fact, the nonmovant must do more than present “some

evidence” of a disputed fact. Any dispute asto a material fact must be established by

affidavits or other documentary evidence. Fed. R. Civ. P. 56(c). “If the

[nonmovant’s] evidence is merely colorable, or is not significantly probative,

summary judgment may be granted.” Anderson v. Liberty Lobby Inc., 477 U.S. 242,

249-50 (citations omitted). Accordingly, a nonmovant “must produce evidence that

would be sufficient to require submission to the jury of the dispute over the fact.” 

Mathieu v. Chun, 828 F. Supp. 495, 497 (E.D. Mich. 1993) (citations omitted). 

“When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary

judgment.” Scott, 550 U.S. at 380. 

III. ANALYSIS

Both ADEA and Title VII discrimination may be shown by direct evidence or

by a preponderance of indirect or circumstantial evidence. Mixed-motive cases are

not permitted under the ADEA, Gross v. FBL Financial Servs., Inc., 557 U.S. 176,

177-78 (2009), but mixed-motive cases are permissible under Title VII.

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[T]o survive a defendant's motion for summary judgment, a Title VII

plaintiff asserting a mixed-motive claim need only produce evidence

sufficient to convince a jury that: (1) the defendant took an adverse

employment action against the plaintiff; and (2) “race, color, religion,

sex, or national origin was a motivating factor” for the defendant's

adverse employment action. 42 U.S.C. § 2000e-2(m) (emphasis added).

See Wright, 455 F.3d at 716 (Moore, J., concurring) (“[A]n employee

raising a mixed-motive claim can defeat an employer's motion for

summary judgment by presenting evidence-either direct or

circumstantial-to ‘demonstrate’ that a protected characteristic ‘was a

motivating factor for an employment practice, even though other factors

also motivated the practice.’” (quoting 42 U.S.C. § 2000e-2(m))). This

burden of producing some evidence in support of a mixed-motive claim

is not onerous and should preclude sending the case to the jury only

where the record is devoid of evidence that could reasonably be

construed to support the plaintiff's claim. See Anderson, 477 U.S. at 252,

106 S.Ct. 2505. Moreover, as it is irrelevant, for purposes of a summary

judgment determination, whether the plaintiff has presented direct or

circumstantial evidence in support of the mixed-motive claim, see

Desert Palace, 539 U.S. at 99-100, 123 S.Ct. 2148, we direct that this

summary judgment analysis just described, rather than the McDonnell

Douglas/Burdine burden-shifting framework, be applied in all Title VII

mixed-motive cases regardless of the type of proof presented by the

plaintiff.

White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008). 

A. No Direct Evidence of Discrimination

Plaintiff suggests that there is direct evidence of discrimination. “Direct

evidence of discrimination isthat evidence which, if believed, requiresthe conclusion

that unlawful discrimination was at least a motivating factor in the employer’s

actions.” Wexler v. White’s Fine Furniture, Inc., 3137 F.3d 564, 570 (6th Cir. 2003). 

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“Direct evidence is evidence that proves the existence of a fact without requiring any

inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir.

2004). 

Plaintiff suggests that her testimony that certain managers told Plaintiff that

Frank (the Administrator) had said “he wanted to get rid of the old people” and “old

people are a liability to” Defendant constituted direct evidence of discrimination. Dkt.

No. 27, PgID 605. Those statements are inadmissible hearsay, and they are

unsupported by any direct testimony, recording, or documentation. The Court finds

that Plaintiff has not identified any admissible statements or actions of Defendant or

its agents that constitute direct evidence of gender or age discrimination. 

B. No Circumstantial Evidence of Discrimination

“Circumstantial evidence . . . is proof that does not on its face establish

discriminatory animus, but does allow a factfinder to draw a reasonable inference that

discrimination occurred.” Wexler, 317 F.3d at 570. In order to establish a prima facie

case of discrimination under the ADEA and Title VII, Plaintiff must prove by a

preponderance of the evidence that: (1) she was a member of a protected class (here,

at least 40 years old); (2) she was subject to an adverse employment decision; (3) she

was qualified for the position she held; and (4) that she was replaced by someone

younger (ADEA) or male (Title VII), or treated differently than a younger person or

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a male, such that it supports an inference of discrimination. See, e.g.,Ensley-Gaines

v. Runyon, 100 F.3d 1220, 1224 (6th Cir. 1996) (ADEA); Diebel v. L & H Res., LLC,

492 F. App’x 523, 526-27 (6th Cir. 2012) (Title VII). “An allegation that [Plaintiff]

was replaced by a younger individual supports an inference of discrimination only if

the difference in age is significant.” Blizzard v. Marion Tech. Coll., 698 F.3d 275,

283-84 (6th Cir. 2012) (replacement who was 61⁄2 years younger was sufficient to

create a genuine dispute of material fact) (citing Grosjean v. First Energy Corp., 349

F.3d 332, 336 (6th Cir. 2003) (creating a zone of discretion whether someone is

younger for purposes of age discrimination if the replacement is six to ten years

younger than the plaintiff)).

If a plaintiff establishes a prima facie case, the burden then shifts to the

defendant to articulate some legitimate, nondiscriminatory reason for the adverse

employment action against the plaintiff. Grosjean, 349 F.3d at 335; McDonnell

Douglas, 411 U.S. at 805. Once the defendant offers a legitimate, non-discriminatory

reason for its conduct, the burden shifts back to the plaintiff to demonstrate that the

defendant’s stated basis for the adverse employment action is a pretext designed to

mask discrimination. Texas Dept. Comm. Affairs v. Burdine, 450 U.S. 248, 253

(1981); McDonnell Douglas, 411 U.S. at 805. 

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A plaintiff can establish pretext by producing evidence sufficient for a jury to

reasonably reject the defendant’s explanation and infer that the defendant

intentionally discriminated against the plaintiff. Dews v. A.B. Dick Co., 231 F.3d

1016, 1021 (6th Cir. 2000) (“A plaintiff can demonstrate pretext by showing that the

proffered reason (1) has no basisin fact, (2) did not actually motivate the defendant’s

challenged conduct, or (3) was insufficient to warrant the challenged conduct”).

A plaintiff can not establish a prima face of age discrimination based on vague,

ambiguous or isolated remarks. Hein v. All America Plywood Co., Inc., 232 F.3d 482,

488 (6th Cir. 2000) (citation omitted).

Plaintiff has alleged that she was subjected to the following adverse

employment actions that were the result of discrimination based on her age and

gender: (1) she was disciplined in a manner that younger employees were not; (2) she

was not granted vacation requests that Defendant awarded other employees; and (3)

she was not given overtime that others were awarded, and (4) she was terminated for

working overtime but others were not.

1. Plaintiff was Qualified

Defendant first argues that Plaintiff cannot satisfy the first element of her

ADEA and Title VII claims because she was not qualified for the position. 

Defendant’s argument is misplaced. The evidence demonstrates, and Defendant

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acknowledges, that Plaintiff was employed by Defendant (and its predecessor) as a

Registered Nurse for more than 10 years before she was terminated. Even if Plaintiff

engaged in the conduct that led to being disciplined and terminated by Defendant,

there is, at a minimum, a genuine dispute of material fact that she was qualified to

perform the position in which she was employed.

2. Discipline

Plaintiff allegesin her complaint thatsimilarly situated employees were treated

more favorably than her with respect to work rule violations. Defendant argues that

the evidence demonstrates otherwise, and the Court agrees. First, Plaintiff does not

identify any instances where an employee who committed workplace violations like

Plaintiff’sfirst two violations was not disciplined in a manner similar to how she was

disciplined.

1 Plaintiff also has not produced evidence that Defendant failed to

discipline any other employee for workplace violations related to the distribution of

medications. 

Second, Plaintiff has not offered evidence that any similarly situated employee:

(1) had an “inappropriate conversation” in a resident area, but (2)was not disciplined

1Those violations were: (1) providing medications to a resident’s family

against medical authorization; and (2) neglecting resident care duties by giving a

resident 30 mg of morphine instead of the required 15 mg.

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for doing so. With respect to the “inappropriate conversation” incident for which

Plaintiff received her third discipline, both Plaintiff and the other employee involved

were: (a) suspended pending an investigation, and (b) given three-day unpaid

suspensions. The only difference between how Defendant treated Plaintiff and the

other employee was that Plaintiff was given a final warning for that incident. It is

undisputed that the final warning given to Plaintiff was due to Plaintiff’s prior

disciplinary incidents, and there is no evidence that the other employee had any prior

disciplinary incidents. 

Third, Plaintiff testified that the other employee she witnessed yelling or

having inappropriate conversations was disciplined for it. Dkt. No. 25, Ex. 1 at 227.

Fourth, Plaintiff acknowledged that she does not know if any younger employees

were disciplined for working unauthorized overtime around the time she was. Dkt.

No. 25, Ex. 1 at 202-03.

The Court concludesthat there is no genuine dispute of materialfact that would

support a finding that Plaintiff was disciplined differently than other employees due

to her age or gender.

3. Vacation

Defendant argues that the denial of vacation cannot constitute an adverse

employment action. The Court disagrees, as the denial of vacation – or any other

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benefit that accompanies an employee’s employment – could constitute a material

adverse action. But, as Defendant argues, courts generally have not been sympathetic

to employment actions that are merely inconvenient or de minimis and not

“significant change[s]in employmentstatus, such as hiring,firing, failing to promote,

. . . or a decision causing significant change in benefits.” See, e.g., Mitchell v. Univ.

Med. Ctr, Inc., 2010 WL 3155842, at *7 (6th Cir. 2010) (quoting Tepper v. Potter,

505 F.3d 508, 515 (6th Cir. 2007)); Carroll v. Potter, 2007 WL 3342298, at *6 (W.D.

Ky. Nov. 6, 2007) (“As inconvenient as being given a low priority for choosing

vacation days and being forced to work certain holidays may be, these actions cannot

be considered materially adverse”). 

Defendant contends that Plaintiff was never denied the use of any vacation

days, and she was denied specific vacation requests on some occasions only because

other employees already had requested vacation at those times. Plaintiff

acknowledges that: (1) she was not denied the right to use—and acknowledges that

she did use—all of her available vacation; and (2) others had already requested days

off on the occasions her vacation request was denied. See Dkt. No. 25, Ex. 1 at 97-99,

104, 107 109-10, 113; Ex. 2 at 36; Ex. 16. The Court also finds that Plaintiff has

offered no evidence that Defendant’s proffered reason was pretextual. Plaintiff has

not offered evidence that any other employees’ vacation requests were granted more

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frequently than hers, nor has she explained the reasons other employees’s vacation

requests were granted or denied, such that any discriminatory motive could be

identified.

The Court concludesthat there is no genuine dispute of materialfact that would

support a finding that Plaintiff was denied vacation opportunities on the basis of her

age or gender. 

4. Denial of Overtime 

Although Plaintiff did not plead that she was denied overtime given to others, 

she testified at her deposition that younger and male nurses were given more overtime

opportunities than she was. To survive summary judgment, a plaintiff must

“produce[] evidence sufficient to raise a genuine issue of material fact as to whether

[s]he was denied overtime opportunities, or whether similarly situated [younger

employees] were given overtime opportunities [she] was denied.” Montgomery v.

Honda of Am. Mfg., Inc., 47 F. App’x 342, 349 (6th Cir. 2002). 

Defendant hassubmitted evidence that, from January 1, 2013 to May 31, 2014,

Plaintiff and the younger, male nurses identified by Plaintiff worked the following

number of overtime hours: (a) Mr. Chandler (age 57) - 341.9 hours; (b) Plaintiff (age

65) - 194.2 hours; (c) Mr. Pollard (age 57) - 123 hours; (d) Mr. Gotto (age 38) - 68.8

hours; and (e) Mr. Ross (age 50) - 0 hours. Defendant states that Mr. Chandler was

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the only nurse willing to work any shift, which is why he had so many more hours

than the others. Plaintiff has offered no evidence that contradicts Defendant’s

evidence. 

The Courtfindsthere is no material evidence that Plaintiff was denied overtime

opportunities given to younger or male nurses, such that a reasonable factfinder could

determine that Plaintiff was denied overtime on the basis of her age or gender.

5. Termination

Asto Plaintiff’stermination, the Court has already concluded that Plaintiff was

a member of a protected class (over 40 and female), and was qualified. Termination

of employment, in itself, constitutes an adverse employment action. Mitchell, 2010

WL 3155842, at *7. Defendant argues that Plaintiff’s ADEA claim is not viable

because she was not replaced at all. The Court is not persuaded by Defendant’s

argument. Defendant states that Karen Moss, a co-worker formerly on the midnight

shift, “chose to change shifts to days and is performing the RN duties Plaintiff had.”

Defendant does not indicate: (a) whether Karen Moss or any other employee(s)

assumed Plaintiff’s duties—in addition to their own existing duties, or (b) that Karen

Moss was not replaced when she “began performing the RN duties Plaintiff had.” See

Blizzard, 698 F.3d at 283-84 (a person is not replaced when the work is redistributed

among other existing employees already performing related work or an existing

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employee assumes a terminated co-worker’s job duties). For those reasons, the Court

finds that there is at least a genuine issue of material fact whether Karen Moss

replaced Plaintiff.

The Court also finds that Plaintiff has presented evidence to show she was

replaced by someone younger for purposes of the ADEA. Karen Moss, was 46 years

old at the time she replaced Plaintiff. That difference in age (nearly 20 years) is well

beyond the 6-10 difference in age range within which the Court can exercise

discretion as to whether the age difference is significant. Grosjean, 349 F.3d at 336. 

The Court concludesthat the difference in age between Karen Moss and Plaintiff was

significant enough to treat Karen Moss as a younger employee. Blizzard, 698 F.3d at

283. 

For the reasons stated above, the Court finds that there is a genuine dispute of

material fact with respect to each of the elements necessary to establish a prima facie

ADEA case as it relates to Plaintiff’s termination. As Plaintiff was replaced by a

woman and not someone outside of her protected class (for purposes of gender

discrimination), she cannot establish a prima facie Title VII case of discrimination as

it relates to her termination.

The Court findsthat Defendant hassatisfied its burden of offering a legitimate,

non-discriminatory reason for terminating Plaintiff. Defendant maintains it

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terminated Plaintiff in accord with the discipline process outlined in Defendant’s

handbook. Defendant has submitted evidence that shows Plaintiff was disciplined

three timesfor work rule violations and, after the third violation, was given a warning

that she would be terminated if she had another work rule violation. Plaintiff then

violated another work rule, and Defendant terminated her. 

Plaintiff offers no evidence that would enable a reasonable finder of fact to

conclude that Defendant’s decision to terminate Plaintiff was mere pretext for

discrimination. Plaintiff hasfailed to offer evidence that would support a finding that

Defendant’s proffered reason: (1) had no basis in fact;

2

(2) did not actually motivate

Defendant’s decision to terminate her; or (3) was notsufficient to warrant terminating

her. Dews, 231 F.3d at 1021. Plaintiff has submitted no admissible evidence of any

comments by Defendant’s employees regarding age or gender. There also is no

evidence that younger or male employeesremained employed when they had violated

a work rule after they had been disciplined three times and had been warned that a

2Plaintiff argues that she should not have been disciplined for working overtime without

authorization because Fudge had previously authorized the overtime at some point after

November 2013. The evidence does not support her argument. When she was disciplined for

working overtime without authorization, Plaintiff did not indicate on the employee statement

portion of her disciplinary action that Fudge had authorized the overtime for which she was being

disciplined. Dkt. No. 25, Ex. 1 at PagID 354 (Page 190). When asked at her deposition whether

she knew “if any of those employees [male, younger females] ever worked overtime without

prior approval,” Plaintiff answered “No, I don’t.” Dkt. No. 25, Ex. 1 at PgID 353-54 (Pages 188-

89).

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fourth violation would result in termination. 

The Court concludesthat there is no genuine dispute of materialfact that would

support a finding that Plaintiff was terminated on the basis of age or gender

discrimination.

6. Conclusion

For the reasons stated above, the Court concludes that Plaintiff cannot satisfy

her burden of establishing a viable ADEA or Title VII claim by circumstantial or

indirect evidence.

C. Title VII Claim - Mixed Motive

In his response, Plaintiff argues only that:

The issue here is whether Plaintiff’s gender was a motivating

factor in the purposeful act of not scheduling Plaintiff for overtime thus

adversely affecting her pay, and terminating Plaintiff’s employment. 

The testimony and affidavits cited herein provide ample support for

Plaintiff’s claim.

Dkt. No. 27, PgID 619. Although it does not matter what kind of evidence (direct or

circumstantial) is offered to show that gender was a motivating factor, some evidence

to supportsuch a finding must be produced. See White, 533 F.3d at 400 (a case should

not be sent to the jury where the record is devoid of evidence that could reasonably

be construed to support the plaintiff's claim). 

In arguing her mixed-motive theory, Plaintiff does not specifically identify any

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admissible testimony or evidence to support her theory that gender was a motivating

factor in any of the adverse employment actions she claims. Although Plaintiff

argues that her gender was a motivating factor for Defendant’s decisions relative to

her employment, discipline, and termination, Plaintiff has offered no admissible

evidence that her gender factored into (was a motivating factor for) for those

decisions by Defendant. For that reason, the Court concludes that Plaintiff cannot

prevail on a mixed-motive theory with respect to her Title VII gender discrimination

claim.

D. Conclusion

As the Court has concluded that there is not any direct or circumstantial

evidence to support Plaintiff’s ADEA and Title VII claims, nor evidence to support

Plaintiff’s mixed-motive theory of liability on her Title VII claim, the Court grants

Defendant’s motion for summary judgment.

IV. CONCLUSION

Accordingly,

ITISORDEREDthatDefendant Rhema-Northwest Operating, LLC’s Motion

for Summary Judgment [Docket No. 25, filed on June 17, 2015] is GRANTED.

IT IS FURTHER ORDERED that Defendant Rhema-Northwest Operating,

LLC’s Motion to Strike [Docket No. 29, filed on July 24, 2015] is DENIED.

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IT IS FURTHER ORDERED that Plaintiff’s Objection [Docket No. 34, filed

on October 29, 2015] to the Order on Motion to Compel, Order on Motion to Strike

is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s cause of action is DISMISSED

WITH PREJUDICE.

IT IS SO ORDERED.

S/Denise Page Hood 

Denise Page Hood

Chief Judge, United States District Court

Dated: September 29, 2016

I hereby certify that a copy of the foregoing document wasserved upon counsel

of record on September 29, 2016, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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