IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARLENE LAMBRIGHT, : 

 : Case No. 2:12-CV-00594 

 Plaintiff, : 

 : JUDGE ALGENON L. MARBLEY 

 v. : 

 : Magistrate Judge Kemp 

KIDNEY SERVICES OF OHIO, et al., : 

 : 

 Defendants. : 

OPINION & ORDER 

I. INTRODUCTION 

 This matter is before the Court on the Parties’ cross-motions for summary judgment. Pro 

se Plaintiff Marlene Lambright brings this action for alleged employment discrimination on the 

bases of race, gender, and disability, arising from her application for employment with 

Defendants Kidney Services of Ohio, Inc., and Thrift Stores of Ohio, Inc. Defendants move the 

Court for summary judgment in their favor on all counts. (Doc. 41). Plaintiff requests the same 

in her favor. (Doc. 42). For the reasons set forth herein, Defendant’s Motion for Summary 

Judgment (Doc. 41) is GRANTED. Plaintiff’s Motion for Summary Judgment (Doc. 42) is 

DENIED. This case is hereby DISMISSED. 

II. PROCEDURAL POSTURE 

Plaintiff filed this action on July 26, 2012 (Doc. 3), having been granted leave to proceed 

in forma pauperis (Doc. 1). Defendants answered, and, on August 23, moved to dismiss 

Plaintiff’s age discrimination claim on account of her failure to exhaust administrative remedies. 

(Doc. 10). On September 11, 2012, Plaintiff filed an Amended Complaint styled as “Plaintiff 

Restates Claim and Complaint.” (Doc. 14). In light of this Amended Complaint, which no 

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longer asserted a claim for age discrimination, the Court denied Defendants’ Motion as moot. 

(Doc. 20). 

 On June 28, 2013, after the close of discovery, Defendants timely filed their Motion for 

Summary Judgment (Doc. 41); on July 1, Plaintiff filed her Motion for Summary Judgment 

(Doc. 42). Both Parties filed Response briefs (Doc. 44, 45), and Defendants filed a reply brief in 

support of their Motion (Doc. 46). On August 30, Plaintiff filed a 37-page “Motions to Strike 

and Deny” Defendant’s reply, which also remains pending before the Court. 

III. STATEMENT OF FACTS 

Plaintiff brings her claim for workplace discrimination under the Americans with 

Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and Title VII of the Civil Rights Act, 42 

U.S.C. § 2000e et seq. (“Title VII”), (Amended Complaint, Doc. 14, ¶ I(A)), arising out of her 

application for employment with Defendants in late 2010. Ohio Thrift is a for-profit retailer of 

new and used products at locations throughout Central Ohio. (Affidavit of Jennifer Alinkas, Doc. 

41-1, ¶ 4). Ohio Thrift obtains its merchandise through personal donations, non-profit 

organizations, and other sources, and offers discounted prices to the public. (Id.). Defendant 

Kidney Services is a related non-profit entity which employs “home solicitors,” who work from 

home to solicit donations. (Id., ¶ 5). In 2010-2012, Defendants also operated a call center that 

employed solicitors at this central location. (Id., ¶ 6). 

In early November 2010, Plaintiff responded to a posting on Craigslist, an online 

message board, advertising part-time, work-at-home employment with Defendant Ohio Thrift. 

(Plaintiff’s Deposition, Doc. 40, at 112). She received a response to her email inquiry and 

communicated with Defendant’s Human Resources department. (Id. at 113-114). In particular, 

Plaintiff asked whether Ohio Thrift “hired handicapped workers,” and whether the work she was 

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applying for “c[ould] be done at home.” (Id. at 114, 138). On November 5, 2010, Faye Tewell, 

General Manger of Home Solicitors with Ohio Thrift, responded affirmatively, and sent to 

Plaintiff an application packet to work as a home scheduler. (Id. at 115-16; Affidavit of Faye 

Tewell, Doc. 41-3, ¶ 3). Ms. Tewell later interviewed Plaintiff by phone, and hired her to work 

as a home solicitor. (Plaintiff’s Dep. at 118, 120, 129-30; Tewell Aff., ¶ 4). Plaintiff informed 

Ms. Tewell that she was also interested in the possibility of a call center job, instead of the home 

solicitor position. (Plaintiff’s Dep. at 123). 

Ms. Tewell advised Plaintiff that she would need to come in person to Defendants’ 

offices to complete her Form I-9 identity verification before she could begin work. (Id. at 122, 

128). Plaintiff explained that she used a walker, making it hard for her to travel to Ohio Thrift’s 

West Broad Street office during regular hours. (Id. at 124, 138). Ms. Tewell suggested that 

Plaintiff go to Ohio Thrift’s call center location to complete her I-9, which was at a more 

convenient location for Plaintiff. (Id. at 124-25, 132, 135). Ms. Tewell also informed Plaintiff 

that, while there, she could speak with Nichol Noeth regarding her interest in a call center job, 

and that Ms. Noeth could assist her with the I-9 verification. (Id. at 124-25, 132, 136-37). Ms. 

Tewell reminded Plaintiff that she should ask Ms. Noeth to fax the I-9 to Ms. Tewell after it was 

completed, if she opted for the home solicitor job rather than working at the call center. (Email 

Chain between Lambright and Tewell, December 11, 2010, Doc. 40-8). 

On December 17, 2010, Plaintiff travelled to the Call Center location in order to complete 

her I-9. (Plaintiff’s Dep. at 140-41). Plaintiff met with Ms. Noeth, and discussed her preference 

for working from home. (Id. at 141, 145). On this first trip, however, Plaintiff had forgotten her 

Social Security Card, so she could not complete her I-9. (Id. at 141, 143). Plaintiff returned 

within a few days with proper documentation. (Id. at 147). During her second visit, on 

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December 20, Plaintiff did not speak with Ms. Noeth; rather, she presented her documentation to 

the office assistant, Rachel Rausch, who made copies of Plaintiff’s identification and took her 

completed Form I-9. (Id. at 147-48; Affidavit of Rachel Rausch, Doc. 41-4, ¶ 3; Lambright Form 

I-9, Doc. 40-9). Ms. Rausch then sent Plaintiff’s Form I-9 to Ohio Thrift’s Human Resources 

Department for payroll processing, which was standard procedure. (Rausch Aff., ¶ 4; Alinkas 

Aff., ¶ 10). She did not forward the documents either to Ms. Tewell or Ms. Noeth. (Rausch Aff., 

¶ 5). Plaintiff did not inform Ms. Rausch that the documents needed to be sent to Ms. Tewell 

(Plaintiff’s Dep. at 148), and so, because Ms. Tewell worked from home, she never received 

Plaintiff’s I-9 (Tewell Aff., ¶ 8). 

Defendants contend that, as a result of Ms. Tewell never receiving Plaintiff’s paperwork, 

Plaintiff was never assigned work with Defendants. (Id.). According to Ms. Tewell, it was not 

uncommon for Ohio Thrift to offer a job to a prospective employee, only to have them fail to 

complete the Form I-9. (Id., ¶ 9). 

After her trips to Defendants’ offices, Plaintiff again contacted Ms. Tewell via email, to 

inform her that she had completed the paperwork, and to ask about her start date. (Plaintiff’s 

Dep. at 160). Plaintiff told Ms. Tewell that she had given her documentation to Ms. Noeth, 

assuming that the office assistant who had helped her, Ms. Rausch, would forward it to Ms. 

Tewell. (Id.). Ms. Tewell thanked Plaintiff, and said that she would contact Ms. Noeth to follow 

up. (Id. at 161; Email Chain between Lambright and Tewell, December 21, 2010, Doc. 40-10). 

Plaintiff communicated with Ms. Tewell again on January 6, 2011, when she wrote to 

inquire if the position was still open. (Plaintiff’s Dep. at 162-64; Email Chain between 

Lambright and Tewell, January 6, 2011, Doc. 40-11). Ms. Tewell answered that the position 

was available, and asked again for Plaintiff’s completed application. (Id.). Plaintiff informed 

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Ms. Tewell that she “gave everything to Nicole [Noeth],” [sic], and Ms. Tewell thanked her for 

completing everything. (Id.). 

Plaintiff emailed for the final time roughly a week later, on January 13, 2011. Plaintiff 

wrote to thank Ms. Tewell for her time, and said that “[a]lthough [she] was not hired,” she 

intended to “refer[] some friends to apply.” (Email Chain between Lambright and Tewell, 

January 13, 2011, Doc. 40-11). Plaintiff did not email again. (Plaintiff’s Dep. at 177-78). 

On June 27, 2011, Plaintiff filed a charge of employment discrimination with the Ohio 

Civil Rights Commission (“OCRC”), alleging substantially the same facts as described above. 

(OCRC Charge, Doc. 40-12). On February 23, 2012, after its investigation, the OCRC issued its 

Letter of Determination, where it concluded that it could found “no information or records that 

would raise an inference that [Defendants] unlawfully discriminated against [Plaintiff] due to her 

race, Black, sex, female, and disability.” (OCRC Letter of Determination, Doc. 40-13). The 

OCRC found specifically that Plaintiff was “inadvertently not placed on the work schedule due 

to paperwork issues and not due to her race, sex, or disability,” and determined that there was no 

probable cause to issue a complaint against Defendants. (Id.). 

After Plaintiff filed her OCRC complaint, Defendants again offered Plaintiff a job as a 

home solicitor. (Alinkas Aff., ¶ 14; Plaintiff’s Dep. at 209). Plaintiff declined the offer. 

(Plaintiff’s Dep. at 209-10). According to Plaintiff, she “felt like [she] wasn’t really wanted,” 

and that it “would have probably been a bad thing for me to file a complaint and then go work 

for a company.” (Id.). 

Plaintiff filed suit on July 5, 2012, asserting claims for race, gender, and disability 

discrimination for failure to hire. Plaintiff seeks $550,000.00 in compensatory and punitive 

damages, as well as costs and attorneys’ fees. (Doc. 3 at 3; Doc. 45 at 16). 

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IV. STANDARD OF REVIEW 

 Federal Rule of Civil Procedure 56 provides, in relevant part, that summary judgment is 

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no genuine issue as to any material fact and 

the moving party is entitled to judgment as a matter of law.” A fact is deemed material only if it 

“might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United 

States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247–48, (1986)). The nonmoving party must then present “significant probative evidence” to 

show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. 

Philip Morris Cos., Inc., 8 F.3d 335, 339–40 (6th Cir. 1993). The suggestion of a mere 

possibility of a factual dispute is insufficient to defeat a motion for summary judgment. See 

Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen–Bradley 

Co., 801 F.2d 859, 863 (6th Cir. 1986)). Summary judgment is inappropriate, however, “if the 

dispute is about a material fact that is ‘genuine,’ that is, if the evidence is such that a reasonable 

jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. 

The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one party must 

prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting 

Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the 

light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs., 

Inc., 712 F.3d 321, 327 (6th Cir. 2013). The mere existence of a scintilla of evidence in support 

of the opposing party's position will be insufficient to survive the motion; there must be evidence 

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on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251; 

Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). 

The standard of review for cross-motions for summary judgment “does not differ from 

the standard applied when a motion is filed by only one party to the litigation.” Sierra 

Brokerage Servs., 712 F.3d at 327. 

V. LAW AND ANALYSIS 

 In a race, gender, or disability discrimination case, a plaintiff may establish her case by 

direct or indirect evidence of discriminatory intent. Price Waterhouse v. Hopkins, 490 U.S. 228 

(1989) (plurality opinion). For example, “a facially discriminatory employment policy or a 

corporate decision maker's express statement of a desire to remove employees in the protected 

group is direct evidence of discriminatory intent.” Nguyen v. City of Cleveland, 229 F.3d 559, 

563 (6th Cir. 2000) (citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); 

LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 379-80 (6th Cir. 1993)). Direct evidence 

has been described as “that evidence which, if believed, requires the conclusion that unlawful 

discrimination was at least a motivating factor in the employer's actions.” Amini v. Oberlin 

Coll., 440 F.3d 350, 359 (6th Cir. 2006). In direct evidence cases, once a plaintiff shows that the 

prohibited classification played a motivating part in the employment decision, the burden of both 

production and persuasion shifts to the employer, to prove, in a failure to hire case, that it would 

not have hired the employee even if it had not been motivated by impermissible discrimination. 

See id. (citing Price Waterhouse, 490 U.S. at 244-45; Manzer v. Diamond Shamrock Chemicals 

Co., 29 F.3d 1078, 1081 (6th Cir. 1994)). 

 In this case, Plaintiff insists that she has “direct evidence” that she is a member of a 

protected class, that she was qualified for the position sought, and that she did begin work with 

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Defendants. (Plaintiff’s Response, Doc. 45 at 2). Plaintiff, however, does not present direct 

evidence of discriminatory intent. Instead, she describes her interactions with Defendants’ 

employees in generally positive terms, and concedes that no employees made any negative or 

inappropriate comments to her. (Plaintiff’s Dep. at 159-60, 188-89). Plaintiff has not offered 

any evidence of an express statement of discriminatory intent, or discriminatory company policy, 

or indeed any evidence, “which, if believed, requires the conclusion that unlawful discrimination 

was . . . a motivating factor.” Amini, 440 F.3d at 359 (emphasis supplied). 

 In a case of indirect discrimination, then, a plaintiff must show by preponderance of the 

evidence a “prima facie case” of discrimination. Texas Dep't of Community Affairs v. Burdine, 

450 U.S. 248, 252-53 (1981). After proving the existence of a prima facie case, the burden shifts 

to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-3 (1973). If the defendant meets this 

burden, the plaintiff must then show that the defendant’s articulated reason is a pretext for 

discrimination. Id. On a motion for summary judgment, the Court “considers whether there is 

sufficient evidence to create a genuine dispute at each stage of the McDonnell Douglas inquiry.” 

Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000). In addition, it is 

important to note that Defendant’s burden on the intermediate step is one of production; the 

“ultimate burden of persuading the trier of fact . . . remains at all times with the plaintiff.” 

Burdine, 450 U.S. at 253. 

The burden of establishing a prima facie case of disparate treatment is not onerous; at this 

stage, a plaintiff merely must present evidence from which a reasonable jury could conclude that 

she suffered an adverse employment action “under circumstances which give rise to an inference 

of unlawful discrimination.” Burdine, 450 U.S. at 253 (1981); see also Cline, 206 F.3d at 661 

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(The court should “first determines if a plaintiff has put forth sufficient evidence for a reasonable 

jury to find her to have met the prima facie requirements.”). 

In a failure to hire case, a plaintiff establishes a prima facie case of race discrimination by 

showing that: “(1) he is a member of a protected class; (2) he applied and was qualified for the 

position at issue; (3) he was considered and denied the position; and (4) other employees of 

similar qualifications who were not members of the protected class were offered the position.” 

Hubbard v. Int'l Paper Co., No. 2:08-CV-181, 2009 WL 5171825, at *5 (S.D. Ohio Dec. 21, 

2009) (citing Nguyen, 229 F.3d at 562-63). 

In an employment discrimination case under the ADA, a plaintiff must show that: “(1) he 

or she is disabled; (2) otherwise qualified for the position, with or without reasonable 

accommodation; (3) suffered an adverse employment decision; (4) the employer knew or had 

reason to know of the plaintiff's disability; and (5) the position remained open while the 

employer sought other applicants or the disabled individual was replaced.” Whitfield v. 

Tennessee, 639 F.3d 253, 259 (6th Cir. 2011); but see Lewis v. Humboldt Acquisition Corp., 681 

F.3d 312, 314-15 (6th Cir. 2012) (en banc) (removing requirement that the disability must be the 

“sole” reason for adverse employment action, and requiring only that it be a “but-for” cause).1

 

1

 As the Sixth Circuit has recognized, “[t]here has been some confusion in this circuit as to the proper test for 

establishing a prima facie case of employment discrimination under the ADA.” Whitfield, 639 F.3d at 259. Most 

courts use the five-factor test described above, used notably in Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 

(6th Cir. 1996). Other courts use a three-factor test, requiring that a plaintiff show (1) that he or she is an individual 

with a disability; (2) who was otherwise qualified to perform a job's requirements, with or without reasonable 

accommodation, and (3) who was discharged because of the disability. See, e.g., Mahon v. Crowell, 295 F.3d 585, 

589 (6th Cir. 2002). This confusion was only deepened by the fact that the Sixth Circuit’s en banc decision in Lewis

explicitly overruled Monette with regard to the “sole cause” requirement, but did not discuss the five-factor prima 

facie case. See Lewis, 681 F.3d at 314. Since Lewis, some courts have reverted to the three-factor analysis, despite 

the court’s clear directive in Whitfield. See, e.g., Henschel v. Clare Cnty. Rd. Comm'n, 737 F.3d 1017, 1022 (6th 

Cir. 2013). Other courts, recognizing that Lewis only abrogated Monette with respect to the “sole cause” standard, 

have maintained that the “Monette formulation” still governs. See, e.g., Zwiebel v. R.J. Corman R.R. Co./Material 

Sales, 3:11-CV-00236, 2013 WL 444348, at *7 (N.D. Ohio Feb. 4, 2013). The Court here follows the imperative of 

Whitfield and the sound logic of Zwiebel, and employs the five-factor “Monette formulation,” as modified by Lewis. 

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 Once a plaintiff has established her prima facie case, the burden shifts to the defendants 

to articulate a legitimate, non-discriminatory reason for the adverse action. McDonnell Douglas, 

411 U.S. at 802-3. To accomplish this, the defendant “must clearly set forth, through the 

introduction of admissible evidence, the reasons for the plaintiff's rejection.” Burdine, 450 U.S. 

at 255. The explanation provided must be “legally sufficient to justify a judgment for the 

defendant.” Id. Although the defendant “need not persuade the court that it was actually 

motivated by the proffered reasons,” it must still raise “a genuine issue of fact as to whether it 

discriminated against the plaintiff.” Id. at 254; see also Cline, 206 F.3d at 666. 

Finally, if Defendant succeeds in articulating a non-discriminatory basis for its action, the 

burden returns to Plaintiff to show that the reasons offered were in fact a pretext for 

discrimination. Burdine, 450 U.S. at 253. Plaintiff may prove pretext by showing that “a 

discriminatory reason more likely motivated the employer” or that “the employer's proffered 

explanation is unworthy of credence.” White v. Baxter Healthcare Corp., 533 F.3d 381, 392 (6th 

Cir. 2008). Usually, a plaintiff will demonstrate pretext by showing that the proffered reason: 

(1) had no basis in fact; (2) was not the actual reason for the employer's decision; or (3) was 

insufficient to explain the employer's decision. Id. at 393 (citing Manzer v. Diamond Shamrock 

Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). As the court explained in Peters v. Lincoln 

Electric Co., 285 F.3d 456, 472 (6th Cir. 2002), the first and third types are direct attacks on the 

employer's credibility. With the second type, the plaintiff argues that the “sheer weight of the 

circumstantial evidence of discrimination makes it ‘more likely than not’ that the employer's 

explanation is a pretext, or coverup.” Manzer, 29 F.3d at 1084. 

In their Motion for Summary Judgment, Defendants concede that Plaintiff is a member of 

a protected class (both by virtue of her race and gender), and they do not contest Plaintiff’s 

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disability. (Defendants’ Motion, Doc. 41 at 10). Defendants also do not challenge that Plaintiff 

was otherwise qualified to work as a home solicitor. (Id.). 

Defendants dispute, however, the other elements of Plaintiff’s prima facie case. In 

particular, Defendants assert that Plaintiff never suffered an adverse employment action, because 

she was in fact hired to work as a home solicitor. (Id. at 11). They further argue that Plaintiff 

has offered no evidence that other individuals who were not members of the protected class were 

offered the position. (Id. at 11). Rather, they point to the fact that Defendants employed “at least 

fifteen individuals who identified themselves as disabled” as home solicitors, as well as several 

black and/or female home solicitors. (Id. at 11-12). 

In addition, Defendants argue that, even if Plaintiff has made her prima facie case, they 

have articulated a legitimate basis for Plaintiff’s failure to begin work – that is, Defendants’ own 

error in improperly routing Plaintiff’s Form I-9 to its Human Resources Department instead of 

sending it first to Ms. Tewell. (Id. at 12). Defendants admit their mistake, but insist that Title 

VII and the ADA do not require a company to be error free; only that it not make decisions for 

discriminatory reasons. (Id. at 13). In short, Defendants maintain that their mistake “was a 

legitimate one, not a sinister one,” and this oversight constitutes “a specific, non-discriminatory 

reason for the Company’s failure to provide work to Plaintiff.” (Id. at 14). 

Lastly, Defendants argue that Plaintiff cannot refute the articulated reason as pretextual. 

Defendants claim that Plaintiff cannot show that the reason given is false, and that her personal 

opinion as to what took place does not substantiate a claim of discrimination. (Id. at 14-15). 

Suspicion, Defendants conclude, “do[es] not constitute evidence of pretext.” (Id. at 15). 

Plaintiff argues that although she was offered a job via telephone and email, once she 

appeared in person, “the hiring process stopped” and she was “dropped,” because she is “a 58 

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year old black female with disabilities.” (Plaintiff’s Motion, Doc. 42 at 4). She adds that she has 

“no direct evidence of whoever was hired instead, because Faye Tewell stated that the position 

was still open” when Plaintiff last communicated with her. (Plaintiff’s Response, Doc. 45 at 9). 

Plaintiff’s argument relies heavily on Cones v. Shalala, 199 F.3d 512 (D.C. Cir. 2000). 

In particular, Plaintiff quotes Cones extensively in order to argue that the function of the prima 

facie case is 

limited to eliminating the two most common nondiscriminatory 

reasons for a plaintiff’s rejection: an absolute or relative lack of 

qualifications or the absence of a vacancy in the job sought. 

Elimination of these reasons for the refusal to hire, the Supreme 

Court has explained, is sufficient, absent other explanation, to 

create an inference that the decision was a discriminatory one. 

199 F.3d at 516 (quotation omitted) (citing Int’l Bhd. of Teamsters v. United States, 431 U.S. 

324, 358 n.44 (1977)). 

Thus, Plaintiff argues that, since Defendants admit she was qualified, and since the job 

was vacant when Plaintiff applied, she has cleared the hurdle presented by the prima facie case 

and created an inference of discriminatory decision-making. (Doc. 42 at 7). She further relies 

on Cones for the proposition that the “close temporal proximity” between Defendants’ 

knowledge of her racial and disability status, and the adverse hiring decision, suffices to establish 

a causal connection. (Id. at 8) (quoting Cones, 199 F.3d at 521). 

Plaintiff also makes reference to an “informal consumer complaint” she filed against 

Ohio Thrift Stores in 2004. (Id. at 9). Plaintiff admits that “Defendants brought attention to [this 

complaint]” during Plaintiff’s deposition, before which, according to Plaintiff, she “forgot all 

about [it].” (Plaintiff’s Dep. at 189). Plaintiff describes how, in 2004, while shopping at Ohio 

Thrift, she was accused of altering the price of an item at the store, resulting in shouting and an 

altercation, and ending in her paying 92 cents more for the item in order to avoid being accused 

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of theft. (Doc. 42 at 9-10). As a result of this incident, Plaintiff filed a consumer complaint with 

the Ohio Attorney General, but did not contact the OCRC. (Id. at 10). In her deposition, 

Plaintiff was reminded of this incident, and stated that “I’m wondering if this is what caused me 

not to get hired.” (Plaintiff’s Dep. at 189-90).2

Finally, Plaintiff disputes the evidence relied on by Defendants. She argues that any new 

employees hired between 2010 and 2013 were hired “to amend the accusations, [so that] the 

Defendants can conveniently say that the ‘black candidates’ matched Plaintiffs’ membership of a 

protected class.” (Plaintiff’s Response, Doc. 45 at 3). Plaintiff further charges that the affidavits 

relied on by defendants are “baseless,” “orchestrated,” “rehearsed,” “unreliably dishonest,” and 

“irrelevant.” (Id.). She insists that Defendants’ questions at her deposition “were set up to make 

Plaintiff lie and say what the Defendants wanted to hear.” (Id. at 9). 

A. Race Discrimination Prima Facie Case 

Plaintiff has failed to establish a prima facie case of race discrimination. Most 

importantly, Plaintiff cannot state a cause of action because she suffered no adverse employment 

action; she was, in fact, hired to work as a home solicitor. Indeed, even after she was hired by 

Mr. Tewell, but was not given any work, and filed an OCRC complaint against Defendants, she 

was again offered employment as a home solicitor. (Alinkas Aff., ¶ 14; Plaintiff’s Dep. at 209-

10). Although Plaintiff might have felt that she was not “really wanted” (Plaintiff’s Dep. at 210), 

and therefore ought to decline the offer, that does not change the fact that she was not the subject 

of an adverse action giving rise to a claim for racial discrimination under Title VII. No 

reasonable jury could conclude otherwise. Compare Nguyen, 229 F.3d at 564 (no prima facie

 

2

 In her Response to Defendant’s Motion, however, Plaintiff maintained that the consumer complaint was 

“irrelevant.” (Doc. 45 at 3). 

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case when plaintiff failed actually to apply for the position sought); Harrington v. Boysville of 

Michigan, Inc., No. 97-1862, 145 F.3d 1331, at *3 (6th Cir. May 13, 1998) (per curiam) 

(Plaintiff failed to establish prima facie case because she “was actually hired” by the defendant, 

when she was hired at a different location, which subsequently closed, and she was offered a 

transfer to the location she originally applied for, which she accepted). 

Plaintiff has also failed to establish her prima facie case under Title VII with regard to 

whether “other employees of similar qualifications who were not members of the protected class 

were offered the position.” Hubbard, 2009 WL 5171825 at *5. Plaintiff admits that she has no 

“direct evidence” of whomever was hired as a home solicitor, but claims that any new employees 

hired since her OCRC complaint are merely “convenient[]” attempts to cover-up what 

Defendants did to her. (Doc. 45 at 3, 9). 

Because Plaintiff has offered no evidence addressing this element, she has failed to make 

her prima facie case. Even following the Sixth Circuit’s most general formulation of this 

element, Plaintiff has done nothing to demonstrate that a “comparable non-protected person was 

treated better.” Adams v. Proto Plastics, Inc., 151 F. App'x 468, 470 (6th Cir. 2005) (citation 

omitted); compare Lyons v. Metro. Gov't of Nashville & Davidson Cnty., 416 F. App'x 483, 489 

(6th Cir. 2011) (affirming summary judgment where plaintiff “d[id] not identify any similarlysituated employee who was treated more favorably.”); see also Johannes v. Monday Cmty. Corr. 

Inst., 434 F. Supp. 2d 509, 517 (S.D. Ohio 2006) (same). 

Plaintiff’s allegations that Defendant hired other black and/or female employees simply 

to defeat her lawsuit are baseless; even if Plaintiff presented any evidence that this was the case, 

such evidence would only serve to undo the claim that Defendants acted with discriminatory 

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intent. In addition, Defendants have offered undisputed testimony that, in fact, they have hired 

several home solicitors who are members of Plaintiff’s protected class. (Alinkas Aff., ¶¶ 7-8). 

Accordingly, there is no genuine dispute of material fact regarding Plaintiff’s prima facie

case under Title VII, and summary judgment for Defendants is warranted. 

B. Disability Discrimination Prima Facie Case 

Plaintiff has also failed to establish a prima facie case of disability discrimination. 

Although Defendants do not challenge that Plaintiff is “disabled” within the meaning of the 

ADA, and that she was qualified for the job, Plaintiff’s prima facie case is deficient for the same 

reasons as described above. Plaintiff was hired to work as a home solicitor, both by Ms. Tewell, 

and against after she filed her OCRC complaint. Moreover, Plaintiff has offered no evidence 

that “the position remained open while the employer sought other applicants or the disabled 

individual was replaced.” Whitfield, 639 F.3d at 259. Defendants employ various disabled 

individuals as home solicitors (Alinkas Aff., ¶¶ 7-8), and Plaintiff can show no evidence that 

demonstrates that the position was kept open while the employer “sought other applicants” 

outside of the protected class. Furthermore, any specter of discriminatory animus is dispelled by 

the fact that Ms. Tewell was aware of Plaintiff’s disability from the very start of their 

communications, and still offered Plaintiff employment. (See Plaintiff’s Dep. at 114, 124, 138). 

There is no genuine dispute of material fact, therefore, regarding Plaintiff’s prima facie

case under the ADA, and summary judgment for Defendants is warranted. 

C. Legitimate, Non-discriminatory Reason 

Even if Plaintiff had succeeded in stating a prima facie case under Title VII or the ADA, 

Defendants have articulated a legitimate, non-discriminatory reason for Plaintiff’s failure to 

begin work – that is, “its own error in initially routing the Form I-9 to Human Resources instead 

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of Ms. Tewell.” (Doc. 41 at 10). As Defendants rightly note, federal employment law does not 

require that employers never make mistakes. Rather, employers may make employment 

decisions “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.” Brown v. Renter's Choice, Inc., 55 F. 

Supp. 2d 788, 795 (N.D. Ohio 1999) (quoting Nix v. WLCY Radio/Rahall Communications, 738 

F.2d 1181, 1187 (11th Cir. 1984)). Courts “do not require that the decisional process used by the 

employer be optimal or that it left no stone unturned.” Michael v. Caterpillar Fin. Servs. Corp., 

496 F.3d 584, 599 (6th Cir. 2007) (quotation omitted). Compare Buchholz v. Rockwell Int'l 

Corp., 120 F.3d 146, 150 (8th Cir. 1997) (employer articulated legitimate, non-discriminatory 

grounds for failure to hire when “the supervisors to whom [the plaintiff’s] resume was routed 

testified that they did not remember ever receiving his resume and therefore did not consider him 

for [the position].”). In addition, Plaintiff’s own error in failing to inform Ms. Rauch that the 

Form I-9 needed to be sent to Ms. Tewell (Plaintiff’s Dep. at 148), and her mistake in stating to 

Ms. Tewell that she gave the I-9 to Ms. Noeth (Id. at 160), also contribute to Defendants’ nondiscriminatory reason for its failure to give Plaintiff work. See Rapp v. Gen. Motors Corp., 148 

F. Supp. 2d 924, 931 (N.D. Ohio 2001) aff'd, 59 F. App'x 724 (6th Cir. 2003) (plaintiff’s failure 

“to comply with the formal application procedures” meant that she could not establish that she 

applied for the position in question, and therefore could not establish her prima facie case). 

Accordingly, Defendants have succeeded in carrying their burden at this step. 

D. Evidence of Pretext 

Finally, Plaintiff has failed to offer any evidence rebutting Defendants’ explanation and 

demonstrating pretextual motives. Plaintiff attacks the affidavits as false and rehearsed, but 

gives no evidence that they are inaccurate. Plaintiff denies the relevance of her deposition, on 

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the grounds that she was tricked into answering questions the way Defendants desired, but a 

review of her testimony belies this claim. Plaintiff has had ample opportunity to explain herself 

through her numerous filings, and she has failed to offer any admissible evidence that 

demonstrates that Defendants did not simply make a mistake in processing Plaintiff’s paperwork. 

See Hartsel v. Keys, 87 F.3d 795, 801-02 (6th Cir. 1996) (“reasonable difference[s] of opinion” 

and “bald assertions and conclusory statements” are not enough to provide proof of 

discriminatory animus). 

Defendant looks to several cases for support for her argument that she has succeeded in 

carrying the minimal burden required under the McDonnell Douglas framework. Even if Cones

were binding precedent in this circuit, however, Defendants have in fact offered “other 

explanation” for their failure to schedule Plaintiff to begin work. Plaintiff may be correct that 

“when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons 

for the employer’s actions, it is more likely than not that the employer . . . based his decision on 

an impermissible consideration such as race.” Furnco Const. Corp. v. Waters, 438 U.S. 567, 577 

(1978). But Defendants have offered a “legitimate reason” for not providing Plaintiff with work, 

and Plaintiff has offered no evidence, beyond her own opinion, to cast doubt on that reason. 

An offered reason for the adverse employment action “cannot be proved to be ‘a pretext 

for discrimination’ unless it is shown both that the reason was false, and that discrimination was 

the real reason.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Virts v. Consol. 

Freightways Corp. of Delaware, 285 F.3d 508, 521 (6th Cir. 2002). “It is not enough, in other 

words, to disbelieve the employer; the factfinder must believe the plaintiffs explanation of 

intentional discrimination.” St. Mary's Honor Ctr., 509 U.S. at 519 (emphasis in original). 

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The only evidence Plaintiff presents in support of pretext is the “informal consumer 

complaint” she filed against Ohio Thrift Stores in 2004. (Doc. 42 at 9). While Plaintiff admitted 

in her deposition that she learned about this complaint only when it was mentioned to her by 

Defendants, after the filing of her suit (Plaintiff’s Dep. at 189), and although she continues to 

refer to it as “irrelevant” (Doc. 45 at 3), nevertheless she suggests that the complaint may be 

connected to her failure to begin work. This is not enough. Plaintiff offers no evidence to show 

that any decision-maker knew of the incident, and indeed the affidavits offered by Defendants 

show that Ms. Tewell, Ms. Noeth, and Ms. Rausch were wholly unaware of its existence. (Doc. 

41-3, ¶ 10); compare Marwaha v. SBC Global Servs., Inc., 05-CV-2015, 2006 WL 2882854, at 

*14 (N.D. Ohio Oct. 6, 2006) (in retaliation claim, where “the decision maker is unaware of the 

complaint, a plaintiff has not made his prima facie case.”); Seay v. Tennessee Valley Auth., 340 

F. Supp. 2d 832, 841 (E.D. Tenn. 2004) (where decision-makers “were entirely unaware” of the 

plaintiff’s race, “it would be impossible for [the adverse employment decision] to have been 

motivated by intentional race discrimination.”). In short, Plaintiff’s collection of “rumors, 

conclusory allegations and subjective beliefs” are “wholly insufficient evidence to establish a 

claim of discrimination as a matter of law.” Mitchell, 964 F.2d at 585. 

Thus, Plaintiff has failed to demonstrate that Defendants’ proffered non-discriminatory 

reason for its actions is a pretext for discrimination. 

VI. PLAINTIFF’S MOTION TO STRIKE 

Lastly, Plaintiff filed a lengthy Motion to Strike Defendants’ Reply in support of their 

Motion for Summary Judgment (Doc. 47). Plaintiff argues that the affidavits supporting the brief 

are “made in bad faith,” and display “rehearsed, repeated, orchestrated, unreliably honest 

testimonies.” (Id. at 1). Plaintiff also objects to the fact that Defendant’s Motion for Summary 

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Judgment contained only portions of her deposition transcript (see Doc. 41), despite the fact that 

the entire deposition transcript was separately filed with the Court (see Doc. 40). Plaintiff 

generally expresses her disbelief at the various affidavits offered by Defendants. 

This motion is without merit. Plaintiff merely repeats her claims that Defendants’ offered 

affidavits are false and misleading, without any evidence to support her argument. 

Plaintiff’s Motion is hereby DENIED. 

VII. CONCLUSION 

For the reasons stated above, Defendant’s Motion for Summary Judgment (Doc. 41) is 

GRANTED. Plaintiff’s Motion for Summary Judgment (Doc. 42) is DENIED. Plaintiff’s 

Motion to Strike (Doc. 47) is DENIED. This case is hereby DISMISSED. 

 IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 DATED: February 21, 2014

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