NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0209n.06
Case No. 17-2158
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

MICHELLE H. BAILEY, Plaintiff-Appellant,

v. OAKWOOD HEALTHCARE, INC., d/b/a OAKWOOD HOSPITAL & MEDICAL CENTER, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

MEMORANDUM OPINION

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 thre e-month maternity leave, was fi red the day she returned from leave. Having had no prior notic e of dissatisfaction with her pe rformance, Bailey sued Oakwood under federal and state law, alleging her term ination was motivated by discriminatory and retaliatory animus. Following discovery, Oakwood moved for summa ry 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 Bail ey had failed to adduce su fficient evidence to support aCase No. 17-2158, Bailey v. Oakwood Healthcare

- 2 - finding that Oakwood’s nondiscrimina tory 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 th e basis of its opinion, and for the additional reasons set forth below.
I We start by accepting the district court’s find ing or presumption that Bailey has met her burden of establishing a prima facie case in suppor t of each of her federa l and state law claims for race discrimination, age discrimination, pregna ncy 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 th at Oakwood’s given reasons are pretextual. In this regard, as the district c ourt 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 insuffi cient to warrant the adverse empl oyment 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 fo r her discarge is false, however, Bailey must also produce sufficient evidence from which the fact finder could reas onably 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 herCase No. 17-2158, Bailey v. Oakwood Healthcare

- 3 - employment application, Bailey’s immediate supe rvisor, Manager of Recruitment and Retention Pandora Walker (who, like Bailey, is African-American), explaine d that when Bailey began her maternity leave on December 5, 2013, she (Walker) and others had to assume Bailey’s responsibilities. In do ing so, Walker uncovered deficiencies in Bailey’s performance. Discovery of these deficiencies led Walker to review Baile y’s qualifications for the position, as set forth in her employment application. Walk er’s investigation uncovered a two-year-earlier application for an Oakwood position by Bailey. When Walker co mpared the two resumés, she discovered discrepancies, indicating to her that Bailey had falsified her later applic ation by exaggerating her prior experience and qualificati ons. Walker and Director of Human Resources David Squire confronted Bailey with the discre pancies 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 th e 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 c ontends her embellishments are insufficient to justify termination. After all, she insists, the j ob descriptions set forth in both applications are roughly consistent. The district court was not persuaded. Af ter summarizing the relevant discrepancies identified by Oakwood and finding Bailey’s charact erization “more than a little disingenuous,” the court concluded that resumé misrepresentation by a senior human resources professional could reasonably be deemed sufficiently egregi ous 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,Case No. 17-2158, Bailey v. Oakwood Healthcare

- 4 - 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 re lies on particularized facts in making an employment decision, it is entitled to summary ju dgment on pretext even if its conclusion is later shown to be ‘mistaken, foolis h, 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 distri ct court’s conclusion that Oa kwood’s first reason is neither trivial nor insufficient to justify terminating Bail ey’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 th at it’s not the real re ason, addressed below. Secondly, Oakwood’s decision was motivat ed by dissatisfaction with her job performance. Oakwood identified various errors made by Bailey in processing others’ applications for positions with Oakwood from Ap ril 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 Ba iley’s chronic tardiness and includes a listing of twelve performance errors from Septem ber 6 to December 5, 2013. R. 41-19, Unacceptable Performance Listing, Page ID 1289. These documen ts were presented to Bailey by Walker and Squire in the March 20, 2014 meeting, but Bailey c ontends she was not allowed to review themCase No. 17-2158, Bailey v. Oakwood Healthcare

- 5 - and was able to explain her posit ion on only a handful of incident s during the meeting. R. 34-5, Bailey Dep. at 83–88, Page ID 384–85. 1 Apart from this partial defe nse of her job performance, th e district court observed, the factual bases for many of the ci ted performance issues are e ffectively unrefuted and even conceded by Bailey. The court thus conclude d that, again, Bailey’s pretext arguments are dependent on her showing either that her performance deficienci es were insufficient grounds for termination or not the real reas on. And again, the district c ourt concluded that the record presented no justification to second-guess Oakw ood’s business judgment: “All in all, Plaintiff has not shown that her performan ce issues taken together were so objectively negligible as to permit an inference that they we re 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 Oakw ood’s given reasons were not actually the motivating force behind her termination, Baile y cites various circumstances. These circumstances are said to warrant a reasonable infe rence 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 th e integrity of Oakwood’s reasons, the record is devoid of evidence of either race or age discri mination beyond the elemen ts of Bailey’s prima

1 Bailey has attempted to provide a fuller explana tion of her role in th e 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, howe ver, 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 review ed for abuse of discretion. Decker v. GE Healthcare, Inc. , 770 F.3d 378, 391 (6th Cir. 2014). On due consideration of the dist rict court’s order in light of Bailey’s present arguments, we find no abuse of discretion.Case No. 17-2158, Bailey v. Oakwood Healthcare

- 6 - 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 infere nce that race or age discrimination was the real reason for Bailey’s term ination. 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 ag e that played a role in their decision to terminate her employment a mere elev en months later. To this extent, Bailey has clearly failed to carry her bur den of showing pretext, per Seeger , 681 F.3d at 285, and the district court’s summary judgment on the race and age disc rimination claims must be affirmed. Closer questions are posed by Bailey’s pregnancy discrimination and re taliation claims. The circumstances relied on by Baile y are summarized as follows: (1) At the end of her four-month pr obationary period, Bailey’s New Employee Assessment Form, completed by Walker and Squi re in August 2013, showed that she received the highest possible rating, “3” or “Role Model” in ten out of thirteen ca tegories, and received the next highest rating, “2” or “S olid Performer” in the remain ing three categories. R. 41-10, Assessment Form, Page ID 1205. (2) In relation to both the application-mi srepresentation issue and the performance deficiencies, Oakwood failed to comply with its own Human Resources Policy by failing to give Bailey (a) notice of the deficienci es, (b) counseling, and (c) progres sive application of corrective action. R. 41-17, HR Policy & Procedure, Page ID 1248–58. (3) Inconsistencies between Walker’s and Squi re’s versions of the timing of, and reasons for, the decision to terminate Bailey’s employment. (4) The temporal proximity between Ba iley’s announcement of her pregnancy and (a) Walker’s restoration of an 8:00 a.m. daily st art time for Bailey (after it had been relaxed toCase No. 17-2158, Bailey v. Oakwood Healthcare

- 7 - 8:30 a.m.); (b) an increase in her workload; and (c) her termination upon re turn 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-Am erican applicants. A. Inconsistent Explanations The district court addressed each of thes e arguments forthrightly and, we believe, correctly. As to the as serted inconsistencies, Bailey contends the record supports the finding that Walker and Squire formed the intent to termin ate her employment even before the meeting on March 20, 2014, not just after they found her response to their c oncerns unsatisfactory. The district court determined that any disc repancies 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 employ ee (whose performance as a mechanic had undisputedly been excellent) based on a single tec hnical policy violation (f ailure to sign a work order)—gave rise to a suspicion of mendacity en tirely different in character from the instant discrepancies. Here, by Baile y’s own description of the Marc h 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 84–1 02, Page ID 384–89. Speculation as to when, precisely, Oakwood, through its decision makers, fo rmulated 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 perfor mance evaluation and Oakwood’s failure to follow its ow n progressive discipline policy ar e two parts of a whole. The district court placed little we ight on the performance evaluation because it found that Bailey hadCase No. 17-2158, Bailey v. Oakwood Healthcare

- 8 - effectively conceded performance deficiencies—bot h 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 = Competen t, 3 = Role Model), Bailey received an “overall rating” of 2, or Competent, in all three listed categories: specific job responsibilities, service excellence, and attenda nce. The assessment also includes the following comments: Michelle is a great addition to our team a nd continues to become proficient in her new role. She should pay a bit more atte ntion to detail to en sure her work is accurate and positions are filled correctly. R. 41-10, Assessment Form, Page ID 1205–06. Th e performance evaluation is thus not necessarily inconsistent with Oakwood’s identification of continuing performance deficiencies after the evaluation. The continuing failure-t o-pay-attention-to-det ail inaccuracies that characterized Bailey’s performance before and after the August 2013 evaluation, combined with concerns about the late-discove red application misrepresentati ons, represent facially valid reasons for Oakwood’s termination that are not undermined by the performance evaluation. But these concerns are not so serious, Baile y argues, that they could not have been appropriately addressed through progressive discipline in accordance with Oakwood’s HR Policy. She contends Oakwood di d not give her prior notice, counseling, or opportunity to complete a corrective action plan, measures th at 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 em ployer’s failure to follow its own internal disciplinary procedures may be pr obative 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.Case No. 17-2158, Bailey v. Oakwood Healthcare

- 9 - 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 disc retion to tailor discip linary responses based on the gravity of the infraction. Whereas Bailey minimized the significan ce of her application misrepresentations, the court found Oakwood’s pos ition more persuasive, i.e., that resumé misrepresentations by a senior human resources pr ofessional represent an infraction so egregious as to defy correction by mere counseling or ot her lesser discipline. R. 69, Opinion at pp. 31–35, Page ID 2022–26. Oakwood’s handling of the matter could have b een better—especially considering that all involved are human resources prof essionals. Still, we find no fa ult 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 ma tters, 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 unl awful 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 reasonabl e inference that she was terminated, not for the stated reasons, but becau se 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 wo rkload 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.Case No. 17-2158, Bailey v. Oakwood Healthcare

- 10 - The district court rejected the temporal proximity argument, citing Asmo v. Keane, Inc. , 471 F.3d 588, 598 (6th Cir. 2006), where an em ployee’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 cl ose 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 ha d 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 terminat ion was too far removed from Oakwood’s first knowledge of her pregnancy to s uggest a causal nexus between the two. And this determination undercuts the si gnificance of the other circumst ances that are said to buttress an inference of pregnancy discrimination. Walker’s insensitive comments about Bailey’s pregnancy at age 40 refl ect 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 nor mal 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 i nvited Walker to assign her additional work inCase No. 17-2158, Bailey v. Oakwood Healthcare

- 11 - 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 reve als no great disparity be tween the performance levels achieved by Walker and Bailey and reveal s nothing about workload. The statistical evidence is too ambiguous to warrant an infe rence of anything proba tive of pretext. D. Retaliation Bailey’s claim that her termination was the resu lt of impermissible reta liation is based on the allegation that she had questioned Walker about apparent racial bias in her evaluations of certain employment applicants. The district c ourt recognized that Bailey’s alleged informal complaints to Walker about perceived racial bi as 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 eviden ce sufficient to rebut Oakwood’s facially valid reasons for terminating her employ ment. The court explicitly discussed situations involving three African-American applicants who Bailey contende d had received less favorable treatment from Walker than Bailey had r ecommended. R. 69, Opinion at 8–11, Page ID 1999– 2002. The court also recognized th at Bailey acknowledged the ex istence of plausible, raceneutral reasons for the unfavorable treatment of each one, including the discovery that two of the three applicants had prior criminal records. Bail ey 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 evid ence in the light most favorable to her. Again, we find no error. Suffice it to say th at a reasonable fact finder confronted with evidence of disagreements between a relative ly new subordinate African-American femaleCase No. 17-2158, Bailey v. Oakwood Healthcare

- 12 - employee and her experienced African-American female supervisor, re garding appropriate treatment of three African-American applicants (among the several dozens considered), would hardly be justified under these circumstances in di sbelieving the superviso r’s facially valid, raceneutral reasons for overruling th e subordinate’s recommendations. That employees sometimes disagree on an appropri ate course of action is not controversial. Nor is it surprising if the subordinate’s opinion is overruled by the superior ’s. And when the app lications of AfricanAmerican applicants who suffered unfavorable treatment at the hands of African-American decision-maker Walker were undisputedly handica pped 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 reta liation 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 Walk er, significantly alter the assessment. It is well established that temporal proximity alone is insufficient to s upport 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 reve rsed 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), c oupled with other evid ence of retaliatory motivation, sufficed to create a tr iable fact issue on pr etext. But, “the more time that elapses between the protected activity a nd the adverse employment action, the more the plaintiff must supplement his claim with ‘other evidence of retaliatory conduc t to establish causality.’” Vereecke , 609 F.3d at 400 (quoting Mickey , 516 F.3d at 525).Case No. 17-2158, Bailey v. Oakwood Healthcare

- 13 - Here, Bailey’s termination was several months removed from the last of her disagreements with Walker. Moreover, Oakw ood’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 inte rvening 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 a ll add up to only neglig ible support for a findi ng 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 unfortuna te and the manner in which the decision was communicated was clumsy, to say th e least—not in keeping with pr ocedures one wo uld expect to be observed by human resources professionals. Yet, despite the perceived unfairness, and despite counsel’s vigorous advocacy, Bailey’s cl aims that Oakwood’s decision was actually

2 Among the items cited are David Squire’s ha ndwritten notes of a telephone conversation he had with Oakwood’s in-house counsel Patr ice 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. Th e court also denied Bailey’s motion for reconsideration. R. 67, Order, Page ID 1975. Baile y has challenged the ruling on appeal. She argues that Oakwood’s failure to la bel 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 tw o orders. In the court’s determinations that the notes reflect privileg ed communications and th at Oakwood did not waive its privilege by the inadvertent disclo sure, we find no abuse of discretion.Case No. 17-2158, Bailey v. Oakwood Healthcare

- 14 - motivated by unlawful animus have not been sufficiently substantiated to warrant further proceedings. The district court’s su mmary judgment ruling is, accordingly, AFFIRMED

.