NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 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. 

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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 three-month maternity leave, was fired the day she returned from 

leave. Having had no prior notice of dissatisfaction with her performance, Bailey sued Oakwood 

under federal and state law, alleging her termination was motivated by discriminatory and 

retaliatory animus. 

 Following discovery, Oakwood moved for summary judgment. Oakwood contended that 

it had, during Bailey’s maternity leave, uncovered both deficiencies in her performance and 

falsifications in her employment application that justified her discharge. The district court 

granted the motion, concluding Bailey had failed to adduce sufficient evidence to support a 
Case No. 17-2158, Bailey v. Oakwood Healthcare 

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finding that Oakwood’s nondiscriminatory grounds were a pretext for unlawful discrimination. 

Bailey asserts several claims of error on appeal. Because we find the district court’s opinion to 

be thorough and well reasoned, we affirm on the basis of its opinion, and for the additional 

reasons set forth below. 

I 

 We start by accepting the district court’s finding or presumption that Bailey has met her 

burden of establishing a prima facie case in support of each of her federal and state law claims 

for race discrimination, age discrimination, pregnancy discrimination, and retaliation. It is 

likewise clear that Oakwood has rebutted each prima facie case by identifying legitimate grounds 

for its actions. The real battleground on appeal revolves around the sufficiency of the evidence 

to create a triable question on Bailey’s claim that Oakwood’s given reasons are pretextual. In 

this regard, as the district court observed, Bailey is obliged to show that “(1) the employer’s 

stated reason had no basis in fact, (2) the stated reason did not actually motivate the employer, or 

(3) the stated reason was insufficient to warrant the adverse employment action.” R. 69, Opinion 

at 25, Page ID 2016 (quoting Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 590 (6th Cir. 

2014)). Beyond showing that the stated reason for her discarge is false, however, Bailey must 

also produce sufficient evidence from which the fact finder could reasonably infer that the 

asserted unlawful discrimination or retaliation was the real reason. Seeger v. Cincinnati Bell Tel. 

Co., 681 F.3d 274, 285 (6th Cir. 2012) (discrimination claim); Tingle v. Arbors at Hilliard, 

692 F.3d 523, 530 (6th Cir. 2012) (retaliation claim). We review de novo the district court’s 

assessment that Bailey failed to meet her burden. See Tingle, 692 F.3d at 529–30. 

 In relation to all four theories of relief, Bailey makes several arguments challenging both 

of Oakwood’s given reasons for discharging her. As to the first reason, falsifications in her 
Case No. 17-2158, Bailey v. Oakwood Healthcare 

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employment application, Bailey’s immediate supervisor, Manager of Recruitment and Retention 

Pandora Walker (who, like Bailey, is African-American), explained that when Bailey began her 

maternity leave on December 5, 2013, she (Walker) and others had to assume Bailey’s 

responsibilities. In doing so, Walker uncovered deficiencies in Bailey’s performance. Discovery 

of these deficiencies led Walker to review Bailey’s qualifications for the position, as set forth in 

her employment application. Walker’s investigation uncovered a two-year-earlier application for 

an Oakwood position by Bailey. When Walker compared the two resumés, she discovered 

discrepancies, indicating to her that Bailey had falsified her later application by exaggerating her 

prior experience and qualifications. Walker and Director of Human Resources David Squire 

confronted Bailey with the discrepancies when she returned from maternity leave on March 20, 

2014. 

 Bailey did not, and does not, deny that the application contained inaccuracies. 

“Falsifications,” however, is too strong, she says. Bailey prefers to characterize the inaccuracies 

as, at worst, mere “embellishments” of the time periods and job titles of positions she held at 

Beaumont Hospital. Her argument that this reason is pretextual does not assert, therefore, that 

the reason has no basis in fact. Rather, she contends her embellishments are insufficient to 

justify termination. After all, she insists, the job descriptions set forth in both applications are 

roughly consistent. 

 The district court was not persuaded. After summarizing the relevant discrepancies 

identified by Oakwood and finding Bailey’s characterization “more than a little disingenuous,” 

the court concluded that resumé misrepresentation by a senior human resources professional 

could reasonably be deemed sufficiently egregious to defy correction by mere counseling or 

other lesser discipline. R. 69, Opinion at 14, 31, 34, Page ID 2005, 2022, 2025. In the process, 
Case No. 17-2158, Bailey v. Oakwood Healthcare 

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the court correctly recognized that it had no prerogative to second-guess the wisdom of 

Oakwood’s standards or to substitute its judgment for that of management. Id. at 27, Page ID 

2018 (citing Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462 (6th Cir. 2004)). Indeed, 

“[w]hen an employer reasonably and honestly relies on particularized facts in making an 

employment decision, it is entitled to summary judgment on pretext even if its conclusion is later 

shown to be ‘mistaken, foolish, trivial, or baseless.’” Tingle, 692 F.3d at 531 (quoting Chen v. 

Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009)). See also, Loyd, 766 F.3d at 589–90; 

Seeger, 681 F.3d at 285–86. 

 We find no error in the district court’s conclusion that Oakwood’s first reason is neither 

trivial nor insufficient to justify terminating Bailey’s employment. Bailey having failed to show 

that Oakwood’s first legitimate nondiscriminatory reason is false or insufficient, it stands 

effectively unrebutted, apart from her contention that it’s not the real reason, addressed below. 

 Secondly, Oakwood’s decision was motivated by dissatisfaction with her job 

performance. Oakwood identified various errors made by Bailey in processing others’ 

applications for positions with Oakwood from April to December 2013. The record of Bailey’s 

various missteps is compiled in two exhibits. The first of these consists of 28 pages of email 

messages and other correspondence collected by Walker. R. 41-18, Performance Issues, Page ID 

1260. The second, also created by Walker, notes Bailey’s chronic tardiness and includes a listing 

of twelve performance errors from September 6 to December 5, 2013. R. 41-19, Unacceptable 

Performance Listing, Page ID 1289. These documents were presented to Bailey by Walker and 

Squire in the March 20, 2014 meeting, but Bailey contends she was not allowed to review them 
Case No. 17-2158, Bailey v. Oakwood Healthcare 

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and was able to explain her position on only a handful of incidents during the meeting. R. 34-5, 

Bailey Dep. at 83–88, Page ID 384–85.1 

 Apart from this partial defense of her job performance, the district court observed, the 

factual bases for many of the cited performance issues are effectively unrefuted and even 

conceded by Bailey. The court thus concluded that, again, Bailey’s pretext arguments are 

dependent on her showing either that her performance deficiencies were insufficient grounds for 

termination or not the real reason. And again, the district court concluded that the record 

presented no justification to second-guess Oakwood’s business judgment: “All in all, Plaintiff 

has not shown that her performance issues taken together were so objectively negligible as to 

permit an inference that they were nothing more than pretext.” R. 69, Opinion at 28, Page ID 

2019. And for the reasons stated by the district court, we agree. 

II 

 In support of her contention that Oakwood’s given reasons were not actually the 

motivating force behind her termination, Bailey cites various circumstances. These 

circumstances are said to warrant a reasonable inference that Bailey was the victim of either race, 

age or pregnancy discrimination, or retaliatory animus. We note at the outset that, even though 

some of the cited circumstances tend to impugn the integrity of Oakwood’s reasons, the record is 

devoid of evidence of either race or age discrimination beyond the elements of Bailey’s prima 

 1

 Bailey has attempted to provide a fuller explanation of her role in the listed incidents in 

a 30-page unsworn declaration. R. 41-3, Bailey Dec., Page ID 1023. The district court granted 

Oakwood’s motion to strike the declaration, however, because it was, as originally submitted, 

unsworn and unsigned and not in conformity with the requirements of 28 U.S.C. § 1746. R. 68, 

Order, Page ID 1981. The court noted that Bailey had an adequate opportunity to tell her story in 

a five-hour deposition and concluded that no exception to § 1746 was warranted. Bailey has 

challenged the ruling in this appeal. 

 Evidentiary rulings are reviewed for abuse of discretion. Decker v. GE Healthcare, Inc., 

770 F.3d 378, 391 (6th Cir. 2014). On due consideration of the district court’s order in light of 

Bailey’s present arguments, we find no abuse of discretion. 
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facie case on each count. That is, even if we recognize that the circumstances call Oakwood’s 

reasons into question, they furnish no support for a reasonable inference that race or age 

discrimination was the real reason for Bailey’s termination. Walker and Squire made the decision 

to hire Bailey in April 2013, despite knowledge of her race and age. The record is devoid of 

evidence of any change in their understanding of her race or age that played a role in their 

decision to terminate her employment a mere eleven months later. To this extent, Bailey has 

clearly failed to carry her burden of showing pretext, per Seeger, 681 F.3d at 285, and the district 

court’s summary judgment on the race and age discrimination claims must be affirmed. Closer 

questions are posed by Bailey’s pregnancy discrimination and retaliation claims. 

 The circumstances relied on by Bailey are summarized as follows: 

 (1) At the end of her four-month probationary period, Bailey’s New Employee 

Assessment Form, completed by Walker and Squire in August 2013, showed that she received 

the highest possible rating, “3” or “Role Model” in ten out of thirteen categories, and received 

the next highest rating, “2” or “Solid Performer” in the remaining three categories. R. 41-10, 

Assessment Form, Page ID 1205. 

 (2) In relation to both the application-misrepresentation issue and the performance 

deficiencies, Oakwood failed to comply with its own Human Resources Policy by failing to give 

Bailey (a) notice of the deficiencies, (b) counseling, and (c) progressive application of corrective 

action. R. 41-17, HR Policy & Procedure, Page ID 1248–58. 

 (3) Inconsistencies between Walker’s and Squire’s versions of the timing of, and reasons 

for, the decision to terminate Bailey’s employment. 

 (4) The temporal proximity between Bailey’s announcement of her pregnancy and 

(a) Walker’s restoration of an 8:00 a.m. daily start time for Bailey (after it had been relaxed to 
Case No. 17-2158, Bailey v. Oakwood Healthcare 

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8:30 a.m.); (b) an increase in her workload; and (c) her termination upon return from maternity 

leave. 

 (5) Bailey’s having become more vocal in the Fall of 2013 about her perception that 

Walker exhibited racial bias in her treatment of certain African-American applicants. 

A. Inconsistent Explanations 

 The district court addressed each of these arguments forthrightly and, we believe, 

correctly. As to the asserted inconsistencies, Bailey contends the record supports the finding that 

Walker and Squire formed the intent to terminate her employment even before the meeting on 

March 20, 2014, not just after they found her response to their concerns unsatisfactory. The 

district court determined that any discrepancies were immaterial, distinguishing Tinker v. Sears, 

Roebuck & Co., 127 F.3d 519 (6th Cir. 1997). Indeed, in Tinker, the fact questions at issue—

regarding termination of a 29-year employee (whose performance as a mechanic had 

undisputedly been excellent) based on a single technical policy violation (failure to sign a work 

order)—gave rise to a suspicion of mendacity entirely different in character from the instant 

discrepancies. Here, by Bailey’s own description of the March 20 meeting, Oakwood has relied 

from the beginning on both her performance deficiencies and resumé embellishments as grounds 

for its decision. R. 34-5, Bailey dep. at 84–102, Page ID 384–89. Speculation as to when, 

precisely, Oakwood, through its decision makers, formulated the resolve to terminate Bailey’s 

employment is of little consequence. 

B. Failure to Follow Disciplinary Policy 

 Bailey’s arguments about the significance of her positive performance evaluation and 

Oakwood’s failure to follow its own progressive discipline policy are two parts of a whole. The 

district court placed little weight on the performance evaluation because it found that Bailey had 
Case No. 17-2158, Bailey v. Oakwood Healthcare 

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effectively conceded performance deficiencies—both before and after the evaluation. Indeed, 

the assessment form itself is not unequivocally “glowing.” On a rating scale of 0 to 3 (0 = 

Unacceptable, 1 = Needs Improvement, 2 = Competent, 3 = Role Model), Bailey received an 

“overall rating” of 2, or Competent, in all three listed categories: specific job responsibilities, 

service excellence, and attendance. The assessment also includes the following comments: 

Michelle is a great addition to our team and continues to become proficient in her 

new role. She should pay a bit more attention to detail to ensure her work is 

accurate and positions are filled correctly. 

R. 41-10, Assessment Form, Page ID 1205–06. The performance evaluation is thus not 

necessarily inconsistent with Oakwood’s identification of continuing performance deficiencies 

after the evaluation. The continuing failure-to-pay-attention-to-detail inaccuracies that 

characterized Bailey’s performance before and after the August 2013 evaluation, combined with 

concerns about the late-discovered application misrepresentations, represent facially valid 

reasons for Oakwood’s termination that are not undermined by the performance evaluation. 

 But these concerns are not so serious, Bailey argues, that they could not have been 

appropriately addressed through progressive discipline in accordance with Oakwood’s HR 

Policy. She contends Oakwood did not give her prior notice, counseling, or opportunity to 

complete a corrective action plan, measures that should ordinarily be expected prior to 

termination. This suggests, she argues, that Oakwood’s proffered concerns were not the real 

reason for its decision. 

 The district court recognized that an employer’s failure to follow its own internal 

disciplinary procedures may be probative evidence, but that more is required to create a genuine 

fact question on pretext, citing Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 561 (6th Cir. 

2009); White v. Columbus Metro. Housing Auth., 429 F.3d 232, 246 (6th Cir. 2005); Gunn v. 
Case No. 17-2158, Bailey v. Oakwood Healthcare 

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Senior Servs. of N. Kentucky, 632 F. App’x 839, 846–47 (6th Cir. 2015). The court noted that 

the HR Policy gives Oakwood management the discretion to tailor disciplinary responses based 

on the gravity of the infraction. Whereas Bailey minimized the significance of her application 

misrepresentations, the court found Oakwood’s position more persuasive, i.e., that resumé 

misrepresentations by a senior human resources professional represent an infraction so egregious 

as to defy correction by mere counseling or other lesser discipline. R. 69, Opinion at pp. 31–35, 

Page ID 2022–26. 

 Oakwood’s handling of the matter could have been better—especially considering that all 

involved are human resources professionals. Still, we find no fault in the conclusion that 

Oakwood’s decision was not so unreasonable as to be disbelieved by a reasonable jury. See 

Sybrandt, 560 F.3d at 558; Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 268 

(6th Cir. 2010). Absent evidence of unlawful discrimination, the federal courts have no authority 

to interfere in private personnel management matters, however unwise or unfair they may appear 

to be. See Loyd, 766 F.3d at 589–90; Tingle, 692 F.3d at 531; Seeger, 681 F.3d at 285–86. 

C. Pregnancy Discrimination 

 Yet, Bailey insists there is evidence of unlawful discrimination. The temporal proximity 

between the announcement of her pregnancy in August 2013 and her termination in March 2014, 

immediately after returning from leave, is said to give rise to a reasonable inference that she was 

terminated, not for the stated reasons, but because she became pregnant. The reasonableness of 

the inference is said to be buttressed by the facts that: (a) Walker restored her daily work start 

time to 8:00 am in October 2013; (b) Bailey’s workload began to increase at about the same 

time; and (c) Walker had made disparaging remarks implying her disapproval of Bailey’s 

pregnancy at the age of 40. 
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 The district court rejected the temporal proximity argument, citing Asmo v. Keane, Inc., 

471 F.3d 588, 598 (6th Cir. 2006), where an employee’s termination two months after the 

employer learned of her pregnancy was considered to be insufficient, standing alone, to show 

pretext. Similarly, in Megivern v. Glacier Hills, Inc., 519 F. App’x 385, 398–401 (6th Cir. 

2013), we held that a two-week period was not close enough, without more, to give rise to an 

inference of discrimination. 

 Here, in contrast, Bailey complains of a decision made not only seven months after 

Oakwood learned of her pregnancy, but also some period of time after she had ceased to be 

pregnant at all. If Oakwood had taken adverse action against Bailey before workplace burdens 

resulting from her pregnancy were actually borne by Walker and other employees, rather than 

afterward, then the timing would be more suspicious. But that’s not what happened. We find no 

error in the district court’s conclusion that Bailey’s termination was too far removed from 

Oakwood’s first knowledge of her pregnancy to suggest a causal nexus between the two. And 

this determination undercuts the significance of the other circumstances that are said to buttress 

an inference of pregnancy discrimination. Walker’s insensitive comments about Bailey’s 

pregnancy at age 40 reflect a lack of discretion, but nothing more. Nor is there great probative 

value in the fact that Bailey’s start time was restored to the normal time of 8:00 a.m. by Walker 

when Bailey had undeniably continued to struggle with tardiness when her start time had been 

relaxed to 8:30 a.m. 

 Finally, the district court correctly rejected Bailey’s argument that an increase in her 

workload in the Fall of 2013 signaled pregnancy discrimination. The court found the claim that 

Bailey was uniquely affected by an increased workload both unsupported by credible evidence 

and undermined by evidence that she had in fact invited Walker to assign her additional work in 
Case No. 17-2158, Bailey v. Oakwood Healthcare 

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June 2013. R. 69, Opinion at 37–38, Page ID 2028–29. Bailey argues on appeal that the court 

improperly overlooked statistical evidence. See Sealed Exhibit N. However, the urged 

comparison of “positions-filled” statistics reveals no great disparity between the performance 

levels achieved by Walker and Bailey and reveals nothing about workload. The statistical 

evidence is too ambiguous to warrant an inference of anything probative of pretext. 

D. Retaliation 

Bailey’s claim that her termination was the result of impermissible retaliation is based on 

the allegation that she had questioned Walker about apparent racial bias in her evaluations of 

certain employment applicants. The district court recognized that Bailey’s alleged informal 

complaints to Walker about perceived racial bias could be considered “protected activity.” 

Walker denied having discussed matters of race with Bailey, but the court assumed the 

truthfulness of Bailey’s version. Still, for the reasons discussed above in relation to Bailey’s 

other claims, the court held she had failed to adduce evidence sufficient to rebut Oakwood’s 

facially valid reasons for terminating her employment. The court explicitly discussed situations 

involving three African-American applicants who Bailey contended had received less favorable 

treatment from Walker than Bailey had recommended. R. 69, Opinion at 8–11, Page ID 1999–

2002. The court also recognized that Bailey acknowledged the existence of plausible, raceneutral reasons for the unfavorable treatment of each one, including the discovery that two of the 

three applicants had prior criminal records. Bailey contends the district court erred by failing to 

recognize the significance of the temporal proximity between her disagreements with Walker and 

her termination, and by failing to view the evidence in the light most favorable to her. 

 Again, we find no error. Suffice it to say that a reasonable fact finder confronted with 

evidence of disagreements between a relatively new subordinate African-American female 
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employee and her experienced African-American female supervisor, regarding appropriate 

treatment of three African-American applicants (among the several dozens considered), would 

hardly be justified under these circumstances in disbelieving the supervisor’s facially valid, raceneutral reasons for overruling the subordinate’s recommendations. That employees sometimes 

disagree on an appropriate course of action is not controversial. Nor is it surprising if the 

subordinate’s opinion is overruled by the superior’s. And when the applications of AfricanAmerican applicants who suffered unfavorable treatment at the hands of African-American 

decision-maker Walker were undisputedly handicapped by other disqualifying facts, the race of 

the applicants facially appears to be merely incidental. It follows that Bailey’s expressed 

subjective belief that racial bias played a role in the unfavorable treatment carries little weight in 

support of her showing that retaliation for protected activity was the real reason she was 

terminated. 

 Nor does the temporal proximity of Bailey’s termination, seven months after she says she 

became more vocal in her disagreements with Walker, significantly alter the assessment. It is 

well established that temporal proximity alone is insufficient to support an inference of 

retaliation. Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010). In Mickey v. 

Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008), we reversed summary judgment for the 

defendant employer, holding that an employee’s discharge the very day the employer learned of 

his protected activity (filing an EEOC claim), coupled with other evidence of retaliatory 

motivation, sufficed to create a triable fact issue on pretext. But, “the more time that elapses 

between the protected activity and the adverse employment action, the more the plaintiff must 

supplement his claim with ‘other evidence of retaliatory conduct to establish causality.’” 

Vereecke, 609 F.3d at 400 (quoting Mickey, 516 F.3d at 525). 
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 Here, Bailey’s termination was several months removed from the last of her 

disagreements with Walker. Moreover, Oakwood’s knowledge of the stated reasons for the 

termination arose largely in the meantime, i.e., after Bailey’s maternity leave commenced and 

after the last of the disagreements. Such an intervening legitimate reason for discipline tends to 

defeat any inference of retaliation based on the proximity of the discipline to an earlier event. 

Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir. 2012) (citing Vereecke, 

609 F.3d at 401). Hence, although Bailey has pointed to other grounds for questioning 

Oakwood’s stated reasons, they all add up to only negligible support for a finding that retaliation 

for protected activity was the real reason for her termination.2

III 

For all the foregoing reasons, we find no error in the district court’s award of summary 

judgment in favor of defendant Oakwood on all of Bailey’s various federal and state law claims. 

The timing of Bailey’s termination was unfortunate and the manner in which the decision was 

communicated was clumsy, to say the least—not in keeping with procedures one would expect to 

be observed by human resources professionals. Yet, despite the perceived unfairness, and 

despite counsel’s vigorous advocacy, Bailey’s claims that Oakwood’s decision was actually 

 2 Among the items cited are David Squire’s handwritten notes of a telephone conversation 

he had with Oakwood’s in-house counsel Patrice Baker on March 10, 2014, notes that were 

inadvertently produced by Oakwood in discovery. R. 48-1, Squire Notes, Page ID 1587. The 

district court granted Oakwood’s motion to strike the notes from the record as privileged 

attorney-client communications. R. 56, Opinion, Page ID 1802. The court also denied Bailey’s 

motion for reconsideration. R. 67, Order, Page ID 1975. Bailey has challenged the ruling on 

appeal. She argues that Oakwood’s failure to label the document “confidential,” failure to show 

the disclosure was inadvertent, and failure to timely assert the privilege are all circumstances 

warranting denial of the motion to strike. 

 The district court’s ruling is well explained in its two orders. In the court’s 

determinations that the notes reflect privileged communications and that Oakwood did not waive 

its privilege by the inadvertent disclosure, we find no abuse of discretion.
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motivated by unlawful animus have not been sufficiently substantiated to warrant further 

proceedings. The district court’s summary judgment ruling is, accordingly, AFFIRMED.