NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0291n.06

No. 13-6320

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARIAN CURRY, )

)

Plaintiff-Appellant, ) On Appeal from the United States 

) District Court for the Eastern 

v. ) District of Kentucky 

)

KENNETH BROWN, et al., ) OPINION

)

Defendants-Appellees. )

)

BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.*

HOOD, District Judge. Appellant Marian Curry (“Curry”) appeals the Judgment and 

Order granting Defendants Kenneth Brown’s and Boone County’s Motion for Summary 

Judgment as to Curry’s retaliation and disability-discrimination claims under the Family and 

Medical Leave Act (“FMLA”). For the reasons set forth below, the district court’s judgment is 

AFFIRMED.

I.

On June 25, 2012, Curry filed a Complaint against Brown and Boone County, Kentucky, 

alleging five counts: violation of 42 U.S.C. § 1983 (Counts I and II); discrimination in violation 

of Ky. Rev. Stat. Ann. § 344.010 et seq. (Count III); interference with rights under the FMLA 

and retaliation for exercising those rights (Count IV); and discrimination based on gender and 

 

*

The Honorable Denise Page Hood, United States District Judge for the Eastern District of 

Michigan, sitting by designation.
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disability in violation of 42 U.S.C. § 2000e-2 and Ky. Rev. Stat. Ann. § 344.040 (Count V). On 

April 4, 2013, pursuant to the parties’ stipulation, the district court dismissed Counts I-III, and 

the gender-discrimination claim in Count V. On September 9, 2013, the district court entered an 

order granting Brown’s and Boone County’s Motion for Summary Judgment, dismissing the 

remaining claims of FMLA interference and retaliation and disability discrimination.

In 1999, Curry began working for the Boone County Clerk’s Office as a deputy clerk. 

Curry was diagnosed with breast cancer and underwent a double mastectomy in 2010. She was 

approved for leave under the FMLA, but she did not have to use unpaid FMLA leave because her 

co-workers donated paid sick days to her.

Brown was elected Boone County Clerk in a 2010 general election. After the election,

Brown conducted one-on-one interviews with his staff to orient himself with both personnel and 

operations. Brown asserts that during the interviews several deputy clerks noted serious 

concerns regarding Curry’s behavior at work. There were allegations that Curry was verbally 

and physically abusive to other clerks. On February 1, 2011, Brown discussed these allegations 

with Curry, which Curry denied. At the end of the meeting, Brown instructed Curry to take three 

days of paid administrative leave while he looked into the matter further. Curry then told Brown, 

“I was told that you were a good guy and honest and I voted for you.” Brown found this 

statement odd since he believed Curry did not live in Boone County, but in Grant County.

Brown met with Curry again on February 4, 2011 to discuss the allegations by her coworkers, with Motor Vehicle Supervisor Kathy Conrad present at the meeting. Curry indicated 

that she believed the allegations were concocted by her co-workers. Brown then told Curry that 

he was demoting Curry from her supervisor position and transferring her from the Florence 

office to the Burlington office. Brown told Curry to concentrate on recovery from her illness and 
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not concern herself with supervising others. Curry’s responsibilities were diminished and a cut 

in her pay was to become effective March 1, 2011.

Following this February 4, 2011 meeting, Brown asked Voter Registration Supervisor 

Rick Riddell to examine Curry’s voting record and to follow up on Curry’s statement made 

during the February 1, 2011 meeting. Curry’s voting records showed that Curry voted in Boone 

County in the 2008 and 2010 elections. Brown then contacted the County Attorney for advice on 

how to proceed.

On February 8, 2011, Brown called Curry into his office and asked where she lived and 

where she voted. Curry responded that she lived in Grant County and voted absentee in Boone 

County. Curry claims she was unaware that she had done anything wrong. Brown then notified 

Curry that she had committed a Class D Felony. Curry looked at Riddell, who was present at the 

meeting, but did not say anything. Curry claims that Riddell knew she was voting in Boone 

County since she voted at the office, but no one asked her for her identification and they knew 

she did not live in Boone County. Curry was suspended at the end of the meeting and later 

received a termination letter dated February 10, 2011. The termination letter from Brown stated 

that Curry was terminated for violating Ky. Rev. Stat. Ann. § 119.025 (wrongful registration) 

and § 119.135 (false presentation of voter-nonresident or unqualified person voting). Brown 

noted that, “[t]he violation of any laws by a Deputy County Clerk compromises the integrity of 

the Boone County Clerk’s Office and the election process in the County and cannot be 

tolerated.”

Curry was indicted by the Boone County Grand Jury on February 15, 2011 on one count 

of wrongful registration, in violation of Ky. Rev. Stat. Ann. § 119.025. Curry entered a guilty 

plea on March 30, 2011 and was referred to the felony diversion program.
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The instant suit was filed by Curry on June 25, 2012. Curry obtained discovery

documenting that, until 2007, Brown had resided with his mother at a Gloucester Drive, 

Florence, Kentucky address, the address on his voting registration through the November 2008 

general election. Brown had purchased a home on Hampshire Place, Florence, Kentucky on July 

26, 2007. Brown testified at his deposition that the Hampshire Place house remained unoccupied 

during renovation until December 2008, when he moved there from his mother’s house. In the 

2011 primary, Brown voted absentee using the Hampshire Place address.

Discovery also revealed that Linda Buchanan Smith, a Boone County deputy clerk, 

moved from her home at Campaign Drive in Hebron, Kentucky, to Clearbrook Drive, 

Burlington, Kentucky in September 2010. Smith voted in the November 2010 election at the 

Hebron precinct. Smith changed her driver’s license information in March 2011.

II.

A.

We review de novo the district court’s grant of summary judgment. Blackmore v. 

Kalamazoo Cnty., 390 F.3d 890, 894 (6th Cir. 2004). Summary judgment is appropriate where 

there is no genuine issue as to any material fact and the movant is entitled to judgment as a 

matter of law. Fed. R. Civ. P. 56(a). A defendant bears the initial burden of showing the 

absence of a genuine dispute of material fact as to at least one essential element of a plaintiff’s 

claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The plaintiff must then present 

sufficient evidence from which a jury could reasonably find in plaintiff’s favor. Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We must then consider whether, drawing all 

reasonable inferences in favor of the plaintiff, the defendant must prevail as a matter of law. 

Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008). 
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B.

Curry argues that the district court erred in finding that she did not present direct 

evidence showing that Brown’s statement at the February 4, 2011 meeting—that Curry should 

concentrate on her recovery and not concern herself with supervising others—was evidence of 

direct discrimination under the FMLA. Brown and Boone County respond that the district court 

properly found that Brown’s statement was not direct evidence of discrimination, but merely a 

conciliatory statement to Curry regarding her health.

The FMLA permits eligible employees to take up to twelve weeks of unpaid leave during 

any 12-month period for family or medical reasons. 29 U.S.C. § 2612. The FMLA prohibits 

“any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any 

right” provided under the statute. 29 U.S.C. § 2615(a)(1). The FMLA also prohibits “any 

employer to discharge or in any other manner discriminate against any individual for opposing 

any practice made unlawful” under this statute. 29 U.S.C. § 2615(a)(2). Two discrete theories 

of recovery under these two sections are recognized: 1) the so-called “interference” or 

“entitlement” theory under § 2615(a)(1), and 2) the “retaliation” or “discrimination” theory 

under § 2615(a)(2). Seeger v. Cincinnati Bell Tel., 681 F.3d 274, 282 (6th Cir. 2012). 

The central issue under the retaliation or discrimination theory is whether the employer 

took the adverse action because of a prohibited reason or for a legitimate, non-discriminatory 

reason. Id. The employer’s motive is an integral part of the analysis in a retaliation or 

discrimination theory because claims under this theory seek to impose liability on an employer 

that acts against an employee specifically because the employee invoked FMLA rights. Edgar v. 

JAC Prod., Inc., 443 F.3d 501, 508 (6th Cir. 2006). An employer is prohibited from 

discriminating against employees who have used FMLA leave and may not use the taking of the 
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FMLA leave as a negative factor in employment actions. Daugherty v. Sajar Plastics, Inc.,

544 F.3d 696, 706-07 (6th Cir. 2008). Direct evidence of discrimination “must establish not only 

that the plaintiff’s employer was predisposed to discriminate on the basis of [the FMLA], but 

also that the employer acted on that predisposition.” Id. at 707 (quoting DiCarlo v. Potter, 

358 F.3d 408, 415 (6th Cir. 2004)). “[G]eneral, vague, or ambiguous comments do not 

constitute direct evidence of discrimination because such remarks require a factfinder to draw 

further inferences to support a finding of discriminatory animus.” Id. at 708.

Curry asserts that when Brown demoted and transferred her, he told her that she “needed 

to focus on her health problems, transfer to Burlington and it would be less stressful.” (Brown’s 

Notes, Page ID #68) Brown testified at his deposition that he told Curry “she should probably 

focus on her health rather than worry about the stress of supervising people.” Curry claims that 

Brown’s statement is direct evidence that he demoted Curry because she exercised her FMLA 

rights. The district court found Brown’s statement could not be considered direct evidence 

because the statement required further inferences to support a finding of discriminatory animus.

Curry argues that the trial court incorrectly found that Brown’s statement was not direct 

evidence because Brown’s statement that Curry “should probably focus on her health rather than 

worry about the stress of supervising people,” does not require a factfinder to draw any 

inferences of discriminatory animus. On appeal, Curry cites three cases to generally support her 

position that Brown’s statement is direct evidence of discrimination.

In Chattman v. Toho Tenax Am., Inc., 686 F.3d 339 (6th Cir. 2012), a race-discrimination 

case, we reversed the district court’s grant of summary judgment to the employer, 686 F. Supp. 

2d 754 (E.D. Tenn. 2010), and held that the employer’s statements identified by the plaintiff 

were “racist comments” showing racial animus towards African Americans:
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In the Spring of 2007, Tullock told a “joke” that O.J. Simpson was 

innocent and that Nicole Brown was killed by their son because 

O.J. Simpson responded to a question from his son by answering 

“go axe your mother.” Around February 2008, Tullock responded 

to another employee’s complaint that her son had gotten into 

trouble at school for fighting by saying “you know what my 

grandmother always says about boys scuffling? That’s how the 

nigger graveyard got full.” A few days later, Tullock commented 

about then-Presidential-candidate Barack Obama by saying “well 

you better look close at Obama’s running mate because Americans 

won’t allow a nigger president.”

Id. at 343, 347. The statement by Brown in this case does not rise to the same level as the 

statements in Chattman because Brown’s statement requires a factfinder to further infer 

discriminatory animus against Curry for taking FMLA leave.

We found in Sharp v. Aker Plan Servs. Group, Inc., 726 F.3d 789 (6th Cir. 2013), an agediscrimination case, that a supervisor’s remarks that a younger person was retained because of 

his age were direct evidence of discriminatory animus. The remarks were offered to explain the 

very decision at the heart of the lawsuit and the rationale for choosing which employees to fire 

and which to retain. Id. at 798. These remarks were sufficient to establish direct evidence of 

discriminatory animus based on age:

Sharp: It just concerns me that someone was brought in younger 

specifically to take Larry [Ash]’s place. Like you said[,] it was 

unfortunate for John [the other terminated E & I designer] and 

myself.

Hudson: It is the fact that he is younger.

. . .

Hudson: And you’re gonna bring in the guy that’s going to give 

you [sic] additional ten, twelve years or whatever, after, you know, 

we’re gone or if Larry’s gone.

. . .
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Sharp: Yeah, [l]ike I said Thursday, you know, it concerned me 

when you all brought Bill in, in the first place[,] you know, and 

said[,] you know, this is going to be Larry’s replacement. Because 

I saw a definitely [sic] change in my status when you all did that. I 

mean cause I was checking Larry’s packages, I felt like I was the 

number two guy, at that point, and[,] you know[,] at some point[,] 

you know[,] I stopped checking Larry's packages, because Bill was 

being groomed to do that.

. . .

Hudson: [A]nd his age, and where he was in his career, just all 

everything just aligned right, that he was [sic] a good spot in his 

career to do that.

Id. at 795-96. Brown’s statement that Curry focus on her health rather than worry about the 

stress of supervising others also does not rise to the same level as the statements in Sharp. 

Brown’s statement does not refer to Curry taking FMLA leave as a reason for her transfer. In 

Sharp, the supervisor admitted that a younger person was retained because of his age.

In Christopher v. Stouder Mem. Hosp., 936 F.2d 870 (6th Cir. 1991), direct evidence was 

found to support a retaliation claim by the plaintiff who was denied privileges as a nurse at the 

defendant hospital based on a memorandum by a member of the executive committee and two 

discussions the plaintiff had with a member of the committee and the president of the hospital. 

The memorandum to the executive committee referenced plaintiff’s prior sex-discrimination 

lawsuit against a different hospital. Id. at 873. The plaintiff had attempted to negotiate the issue 

of her privileges with the president of the hospital, who indicated, “[i]f you hadn’t had some 

legal action prior to this, this might not have occurred.” Id. A committee member told the 

plaintiff that “she was having difficulties because of her prior legal action” at the other hospital. 

Id. at 873-74. We found these statements to be direct evidence of retaliation that plaintiff was 

denied privileges because of the previously-filed sex-discrimination lawsuit. Id. at 879. 

Brown’s statement in this case that Curry needed to focus on her health problems does not make 
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reference to Curry taking FMLA leave. In contrast, in Christopher, the statements expressly 

referred to a prior lawsuit as a reason for denying the plaintiff privileges.

Brown’s statement, as argued by Defendants, could instead be inferred as conciliatory in 

that Brown was encouraging Curry to think about her health and that the transfer would mean 

less stress at work. It cannot necessarily be inferred from the statement that Curry’s demotion 

and transfer were the result of Curry taking FMLA leave. The statement requires further 

inference that Brown discriminated against Curry because she took FMLA leave.

In Clark v. Walgreen Co., 424 F. App’x 467 (6th Cir. 2011), we found the comment that 

“because of your health, we’re just going to go ahead and terminate you,” did not compel the 

conclusion that the plaintiff was fired in connection with taking a leave. Id. at 472. Instead, we 

found the comment was not direct evidence of discrimination since it appeared to address the 

plaintiff’s post-leave job performance as a function of the plaintiff’s health. Id. The statement 

by Brown in this case is similar to the comment in Clark in that the statement also appears to 

address Curry’s post-leave job performance as a function of plaintiff’s health. It cannot be 

inferred from the statement that Curry’s FMLA leave prompted Curry’s demotion and transfer. 

The district court’s finding that the statement by Brown was not direct evidence of 

discrimination under the FMLA is affirmed.

C.

Curry also claims the district court erred in finding that Brown and Linda Smith were not 

similarly situated to Curry, where Brown and the other subordinate allegedly committed the 

same criminal violation as Curry by voting in a precinct where they did not reside, but were not 

indicted or convicted. Brown and Boone County respond that the district court correctly ruled 

that Brown and Smith were not similarly situated to Curry.
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A plaintiff asserting an FMLA claim of discrimination or retaliation through indirect or 

circumstantial evidence must establish a prima facie case under the McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973) burden-shifting framework. Seeger, 681 F.3d at 283. To establish a 

prima facie case of discrimination or retaliation under the FMLA, a plaintiff must show: 1) she 

was engaged in an activity protected by the FMLA; 2) the defendant knew she was exercising a 

protected right; 3) she suffered an adverse employment action; and 4) a causal connection 

between the protected activity and the adverse employment action. Id. Only minimal credible 

evidence is required to carry the burden of proof at the prima facie stage. Id. Once a plaintiff 

has established a prima facie case, then the next step of the McDonnell Douglas analysis is 

whether the defendant has articulated a legitimate, nondiscriminatory reason for the adverse 

action. Id. at 284. A plaintiff then must produce adequate evidence demonstrating that the 

defendant’s proffered reason was pretext for discrimination. Id. Pretext may be established by 

showing that the defendant’s proffered reasons: 1) have no basis in fact; 2) did not actually 

motivate the action; or 3) were insufficient to warrant the action. Id. at 285. Pretext cannot be 

established “‘unless it is shown both that the reason was false, and that discrimination was the 

real reason.’” Id. (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). 

The district court and the parties did not address whether a prima facie case under 

McDonnell Douglas was established by Curry because Curry instead claimed direct evidence of 

discrimination under the FMLA. Curry raised the “similarly-situated” argument in the context of 

arguing that Brown’s and Boone County’s proffered reason for Curry’s termination, that she 

committed a felony by voting in a precinct where she did not reside, was mere pretext. Curry 

claims that Brown and Smith were not disciplined even though they voted in precincts where 
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they did not reside. Curry appears to be asserting the “no basis in fact” method to demonstrate 

pretext.

Where an employer can demonstrate an honest belief in its proffered reasons, the 

inference of pretext is not warranted. Id. at 285 (quoting Joostberns v. United Parcel Servs., 

Inc., 166 F. App’x 783, 791 (6th Cir. 2006)). Bare assertion that the employer’s proffered reason 

has no basis in fact is insufficient and fails to create a genuine issue of material fact. Id. A 

plaintiff must show “more than a dispute over the facts upon which the discharge was based.” 

Id. (quoting Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001)). As long as the 

employer held an honest belief in its proffered reason, “the employee cannot establish pretext 

even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.” 

Id. at 286 (quoting Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998)). 

Brown’s and Boone County’s proffered reason for Curry’s termination is her admission 

that she voted in Boone County elections even though she had resided in Grant County since 

2006. Curry claims she did not know she was doing anything illegal and that the Boone County 

Clerk’s Office personnel knew she did not reside in Boone County, yet she was allowed to vote 

in Boone County. Brown and Boone County assert that in Kentucky, the Boone County Clerk, 

here Brown, is charged with the responsibility for administering and maintaining the integrity of 

elections in Boone County. Ky. Rev. Stat. Ann., Chapters 116-120. The termination letter sent 

to Curry stated that because the Boone County Clerk was charged with this duty, he could not 

employ a person who knowingly violates election law. As the district court stated: “It would 

strain credulity to accept that the Boone County Clerk—the elected official charged with voter 

registration in Boone County—would not terminate an employee who admits to illegal voting.” 

(Opinion, Pg ID # 546).
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Curry attempts to show pretext by claiming that Brown and a co-worker, Linda Smith, 

also voted in a precinct where they did not reside and were not indicted, nor disciplined in any 

way. However, in cases involving circumstantial evidence of discrimination, claims of 

differential treatment from “similarly situated” employees are generally addressed as part of a 

prima facie case, not in the pretext portion of the analysis. See Ercegovich v. Goodyear Tire & 

Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).

At the pretext stage of the analysis, Curry must show “more than a dispute over the facts 

upon which the discharge was based.” Seeger, 681 F.3d at 285. In this case, Curry admitted to 

Brown that she voted in Boone County even though she had not lived in Boone County since 

2006. There is no dispute over the facts upon which the discharge was based. Even assuming 

Curry could establish a prima facie case of discrimination, Curry cannot establish pretext to rebut 

the proffered reason for her termination by Brown and Boone County. Curry’s “similarlysituated” arguments as to Brown and Smith are not relevant. Summary judgment against Curry

on this issue is affirmed.

III.

For the reasons set forth above, we AFFIRM the district court’s entry of summary 

judgment against Curry.