UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

KATHLEEN HEAROD 

 Case No. 1:17-cv-175 

 Plaintiff, 

 J. Black 

 M.J Bowman 

vs. 

 

FIFTH THIRD BANK,

Defendant. 

REPORT AND RECOMMENDATION 

 This civil action is now before the Court on Defendant Fifth Third’s motion for 

summary judgment and supporting documents (Doc. 61) and the parties’ responsive 

memoranda and supporting documents. (Docs. 70, 71, 74). 

I. Undisputed Facts1 

 The Plaintiff is a former employee of Fifth Third Bank (“Fifth Third”). She worked 

for Fifth Third as a Dispute Servicing Specialist I in their Dispute Resolution Department 

(“DRD”) in Cincinnati, Ohio. (Doc. 61, Ex. C, Karen Darpel Declaration at ¶4-6). In this 

role she interacted with Fifth Third’s customers over the phone to resolve disputed 

transactions on their retail banking accounts to prevent losses to the customers and the 

bank. (Doc. 61, Ex. C, Darpel Decl. at ¶ 7-8); Darpel Decl. Ex. 1, Job Description). Plaintiff 

was responsible for initiating, analyzing, and rendering decisions on customer disputes 

and providing Fifth Third’s customers with a positive customer experience. Id. 

1 Fifth Third’s proposed undisputed facts are well-supported and herein adopted. (Doc. 61, Ex. A). As 

more fully explained below, Plaintiff’s response to Fifth Third’s undisputed facts is not supported by any 

citations to contradicting evidence. 

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 On July 23, 2014, Fifth Third offered to hire Plaintiff to work directly for the company 

beginning August 3, 2014. (Doc. 61, Ex. C Darpel Decl. at ¶ 10; Darpel Decl. Ex. 2). 

Plaintiff worked for Fifth Third in this position from August 3, 2014 through December 31, 

2015 the day she resigned. (Doc. 61, Ex. C, Darpel Decl. at ¶ 11; Darpel Decl. Ex. 3). 

 Plaintiff reported to Michelle Smith (formerly Michelle Weimer), a white female, 

from August 2014 to approx. June 2015. (Doc. 61, Ex. D Michelle Smith Declaration at ¶ 

5, Ex. C Darpel Decl. at ¶ 12-17. She then reported to Kynae Austin, a black female, from 

June 2015 to January 2016 when Kynae Austin left the company. Id. Marilyn Kazmierski, 

a white female, was the Vice President of the DRD and supervised Michelle Smith 

(“Smith”) and Kynae Austin (“Austin”). 

 All Dispute Resolution Specialists (a/k/a “Agents”) in the DRD work a set shift. 

(Doc. 61, Ex. D, Smith Decl. at ¶ 9-23) The DRD has a set process for awarding shift 

assignments that has been in effect since June 2014. (Id. ¶17). In order to be eligible, the 

agents must have worked in their current schedule for at least three months, and they 

cannot be on a Performance Counseling. Id. (See also, Ex. B, Hearod Depo., at 278-

279:1-5). In June 2015, the three-month requirement was changed to six months. (Doc. 

61, Ex. D, Smith Decl. ¶18). 

 The new shifts are then awarded based on a stack ranking system. (Doc. 61, Ex. 

D, Smith Decl. at ¶ 9-23). The employee’s stack ranking is calculated using 1/3 of their 

CEI/OSAT scores, 1/3 Quality Scores and 1/3 of their AHT scores for the three months 

immediately preceding the shift bid announcement. Id. The CEI/OSAT score comes from 

customer surveys submitted by the customer after their call with a DRD agent. (Id. ¶21). 

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The Quality scores is evaluated by an independent Quality Assurance (QA) team within 

Fifth Third. The QA team evaluates each agent based on their review and scoring of 6 

calls per month to determine whether the agent is giving professional, accurate, 

consistent, and efficient service to customers. Id. The Average Handle Time (AHT) 

measures the DRD Agent’s average time spent handling a customer call. Id. 

 From June 2014 through March 2016 there were 9 shift bid opportunities. (Doc. 

61, Ex. D., Smith Decl at ¶ 25). On February 18, 2015, Andria Bach sent an email 

notifying agents about a new shift bid and the eligibility requirements. (Doc. 61, Ex. D, 

Smith Decl. at ¶ 26- 35; Smith Decl. Ex. 2). The deadline to apply for a new shift bid was 

February 24, 2015 and the new schedules were to go into effect on March 9, 2015. (Id. 

¶27). The bidding process used the stack rank scores for November and December 2014, 

and January 2015. (Id. ¶ 28). 

 At the time of this shift bid, Plaintiff worked second shift Monday through Thursday 

from 11:30 a.m. to 8:00 p.m. and Saturdays from 8:30 a.m. to 5:00 p.m. Plaintiff wanted 

a schedule with Saturdays off. (Id. ¶ 32). Six employees were selected for a new schedule 

including Plaintiff. (Id ¶ 30). The six employees selected were: Kristen Rice (white 

female), Joshua Hedley (white male), Mirela Kombie (white female), Nikki Devrou (white 

Female), Plaintiff Hearod and Jerome Knox (black male). Id. The Saturday off shifts were 

given to Rice, Hedley, Devrou and Kombie, the top four employees on the stack rank. (Id. 

¶33). 

 Plaintiff did not win one of the no Saturday shifts because she ranked second two 

last according to the stack rank for this shift bid. (Doc. 61, Smith Decl., attached Ex. 2 at 

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p. 5). However, Plaintiff won a new schedule to work first shift instead of second shift, 

but she declined it. 

 Another shift bid opportunity opened up on April 14, 2015. Instead of creating 

three brand new shift openings and doing a formal shift bid, Fifth Third decided to conduct 

an informal shift bid in which it offered the top-ranking DRD agents the option to keep 

their current weekday schedules and just stop working on Saturdays. (Doc. 61, Ex. D, 

Smith Decl. at ¶ 37). Fifth Third ran a stack rank report for this informal shift bid and 

went down the list of the top-ranking employees until three openings for no Saturdays 

were filled. (Id., attached Ex. 3, Smith Email dated 3/25/2016). Zach Hassler (white male), 

Katherine Slee (white female) and Tasha Longmire (black female) were the top three 

employees selected for this informal shift bid. Plaintiff was not selected for a noSaturdays schedule because she was not among the top three employees in the stack 

ranking done for this informal shift bid. 

 On May 11, 2015 Plaintiff received a Coaching for Attendance. (Doc. 61, Ex. D, 

Smith Decl. at ¶ 59 - 70; Smith Decl., Ex. 4). A coaching occurs when a manager 

communicates performance or other deficiencies to an employee. (Doc. 61, Ex. C, Darpel 

Decl. at ¶ 45; Darpel Decl. Ex. 11, 13 and 14). Smith was her supervisor at the time and 

issued this Coaching. Id. Karen Darpel was not involved in this coaching session at all. 

(Doc. 61, Ex. C, Darpel Decl. at ¶ 46-50; Ex. D, Smith Decl. at ¶ 60-62). Plaintiff was late 

to work 9 times between January 2015 and April 2015. (Doc. 61, Ex. D, Smith Decl. at ¶ 

64-70; Smith Decl. Ex. 4 and 5). She also left early on 1/13/15 and 4/25/2015 and she 

had three unplanned absences on 4/16/15, 4/20/15 and 4/29/2015. Id. 

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 Pursuant to Fifth Third’s Attendance and Tardiness Policy, “[u]nscheduled 

absences place an unfair burden on co-workers and should be avoided. Frequent 

unscheduled absences, including late arrivals and early departures, are grounds for 

discipline, up to and including termination. Unexcused absences and excessive absences 

may result in disciplinary action up to and including termination.” (Doc. 61, Ex. C, attached 

Ex. 13, January 2015 Attendance & Tardiness Policy in the April 1, 2015 Policy Manual). 

 In June 2015, Fifth Third notified the DRD employees of three shifts bid openings, 

one of which had a no Saturdays. (Doc. 61, Ex. C, Darpel Decl. at ¶ 18-30; Darpel Decl. 

Ex. 4; Ex. D, Smith Decl. at ¶ 41). The new schedules would go into effect on July 13, 

2015 and Fifth Third used the stack rank for March, April, and May 2015 to select the 

winners of this bid. Id. Fifth Third selected the top-ranking agents for this bid. (Doc. 61, 

Ex. C, Darpel Decl. at ¶ 23; Darpel Decl., Ex. 6; Ex. D, Smith Decl. at ¶ 46). Plaintiff was 

not selected because she ranked last on the stack rank out of those who applied and 

almost last when compared to all DRD agents. (Doc. 61, Ex. C, Darpel Decl. at ¶ 30; 

Darpel Decl., Ex. 6 and 7). 

 In July 2015, Plaintiff sent an email to Karen Darpel (“Darpel”), Employee Relations 

Consultant, complaining that two white male agents, Patrick Markus, and Evan Demott, 

were selected but they were not eligible for the shift bid because they had not worked for 

Fifth Third for at least 6 months and they had lower seniority than her. (Doc. 61, Ex. C, 

Darpel Decl. at ¶ 31-37, Darpel Ex. 8 and Ex. 9). Darpel investigated her complaints by 

consulting with Kazmierski. (Doc. 61, Ex. C, Darpel Decl. at ¶ 34-37, Darpel Decl. Ex. 10). 

Kazmierski explained that although these two agents had not been in their current 

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schedule for six months at the time the bid was posted, both employees would have 

reached their 6 months before the new shift began. (Id. ¶43). Kazmierski further explained 

that they have never prevented any employee from bidding on a shift under these 

circumstances. Id. Plaintiff ranked last among all the employees who participated in the 

June 2015 shift bid. Id. 

 On July 14, 2015 Kynae Austin prepared a coaching for Plaintiff regarding a 

customer complaint on an OSAT, which is a customer survey the customer completes 

after their interaction with a DRD agent curing a call. (Doc. 61, Smith decl., at ¶ 71-72). 

The customer threatened to close her account based on the poor customer service that 

she received from Plaintiff. The customer complained that Plaintiff was “uncivilized and 

unprofessional and rude”, and she asked for the matter to be escalated to Plaintiff’s 

immediate supervisor. Kynae Austin, a black female, was her supervisor at this time, and 

she prepared this coaching. Id. Smith and Darpel were not involved in this coaching. 

(Doc. 61, Smith decl., at 71-72; Darpel Decl. at ¶ 92-93). On July 29, 2015 Austin issued 

a coaching document to Plaintiff for failing to get preapproved to work overtime. (Doc. 61, 

Ex. G). 

 Also in July 2015, Plaintiff submitted an EEOC Charge of Discrimination for race 

and age discrimination and retaliation against Fifth Third. (Doc. 61, Ex. E). In her 2015 

EEOC Charge, Plaintiff alleged that she applied for multiple shift bids in March, April, and 

June 2015 and other younger white males with less seniority received the bids for day 

shift before the bidding was closed. (Doc. 61, Ex. E). 

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 Additionally, on June 10, 2015, Plaintiff submitted a written complaint to HR 

alleging a hostile work environment. (Doc. 61, Ex. C, Darpel Decl. at ¶51; Darpel Decl. 

Ex.15). Karen Darpel was assigned to investigate the matter. (Doc. 61, Ex. C, Darpel 

Decl. at ¶ 52, Darpel Ex. 21). After completing her investigation, Darpel scheduled 

another meeting with Plaintiff for July 27, 2015. (Id. at ¶ 53-59). However, on July 22, 

2015, Darpel learned that Plaintiff had been in the hospital and might not be able to return 

to work. Id. Darpel inquired as to whether Plaintiff had applied for FMLA leave through 

CIGNA, Fifth Third’s third-party leave administrator, and Plaintiff said that she had applied 

but she wasn’t eligible because she hadn’t worked at Fifth Third for one year. Id. Darpel 

contacted CIGNA and asked them to include her time at Fifth Third when she was working 

as a temporary employee through Adecco so she would be eligible. (Darpel Decl. Ex. 17 

at p. 3). On August 14, 2015, CIGNA approved her FMLA leave for 7/20/15 to 7/26/15. 

(Ex.D, Darpel Decl. at ¶ 59; Darpel Decl., Ex. 16 at p. 2). 

 Plaintiff called off work without advanced notice on 8/5/15, 8/6/15 and 8/24/15. 

(Doc. 61, Ex. C, Darpel Decl. at ¶ 60-65; Darpel Decl. Ex. 18) . Plaintiff reported that her 

car was stolen on 8/24/15. (Doc. 61, Ex. C, Darpel Decl. at ¶ 62; Ex. B, Hearod Depo. at 

p.181-188). Fifth Third ultimately gave her until September 14, 2015 to get these 

absences approved as FMLA leave. Id. 

 On September 8, 2015 Austin contacted CIGNA to inquire about any FMLA leave 

approved for August 2015 and CIGNA told her there were none. (Doc. 61, Ex. C, Darpel 

Decl. at ¶ 66; Darpel Decl. Ex.17). 

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 Thereafter, on September 10, 2015, Austin prepared a written Performance 

Counseling concerning these unexcused absences on 8/5/15, 8/6/15 and 8/24/15. 

(Darpel Decl., Ex.17). On September 21, 2015, Fifth Third contacted CIGNA again to 

confirm if Plaintiff was approved for any additional FMLA leave after 7/26/15 and CIGNA 

confirmed she was not. (Doc. 61, Ex C, Darpel Decl. at ¶ 68-75; Darpel Decl. Ex. 17 at p. 

2) 

 On September 21, 2015, Austin held a meeting with Plaintiff to issue this 

Performance Counseling and Smith was there only as a witness. (Doc. 61, Ex. C, Darpel 

Decl. at ¶ 68-75; Darpel Decl. Ex. 18; Ex. D, Smith Decl. at ¶82). After the counseling, 

Hearod finally contacted CIGNA to obtain FMLA leave 8/5, 8/6 and 8/24/2015. (Doc. 61, 

Ex. C, Darpel Decl. ¶ 72-75; Darpel Decl. Ex. 17). On September 30, 2015, Austin talked 

with CIGNA and confirmed that they were updating her FMLA leave to be approved only 

for 8/5/15 and 8/6/2015 and not for 8/24/2015, the day Plaintiff’s car was stolen. (Doc. 61, 

Darpel Decl. Ex. 19). 

 In October 2015, Plaintiff contacted Darpel’s boss, Senior Employee Relations 

Manager Meaghan Ruehl (“Ruehl”), with concerns that Darpel and Plaintiff’s managers 

had been unfairly harsh concerning her performance/attendance because of her earlier 

complaints about unfair treatment. (Doc. 61, Ex. H, Ruehl Declaration at ¶ 1-13). Ruehl 

met with Plaintiff on November 4, 2015. During this meeting, Plaintiff reiterated her prior 

concerns about unfair shift assignments and expressed concerns about her 9/10/2015 

Performance Counseling. Id. Ruehl reviewed the situation and met with Plaintiff again on 

November 11, 2015 and informed Plaintiff that she would remove any days ultimately 

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approved as FMLA leave from her Performance Counseling, but the counseling would 

not be retracted because Plaintiff still failed to comply with Fifth Third’s policy. Id. Ruehl 

was still investigating Plaintiff’s other claims when Plaintiff resigned. Id. 

 In January 2016, Plaintiff filed an EEOC Charge alleging retaliation, race, and age 

discrimination. (Doc. 61, Ex. F). In her 2016 charge, she alleges that she filed a previous 

charge of discrimination in 2015 and since then she’s been written up multiple times for 

time and attendance while on approved FMLA leave, on an approved vacation and when 

her car was stolen. Id. In her 2016 charge she claims that she filed her 2015 EEOC 

Charge on July 14, 2015. (Doc. 61, Ex. F). 

 On February 14, 2017, Plaintiff filed a Complaint with Exhibits A - Z in Ohio’s state 

court alleging violations of Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 

1991 and the Family Medical Leave Act. (Doc. 1-1). On March 16, 2017, Fifth Third filed 

a Notice of Removal to this court. (Doc. 1). 

II. Analysis 

 A. Summary Judgment Standard of Review

 In a motion for summary judgment, “a court must view the facts and any inferences 

that can be drawn from those facts ... in the light most favorable to the nonmoving party.” 

Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal 

quotation marks omitted). “Summary judgment is only 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 that the 

moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 

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56(c)) (internal quotation marks omitted). “Weighing of the evidence or making credibility 

determinations are prohibited at summary judgment-rather, all facts must be viewed in 

the light most favorable to the non-moving party.” Id.

 The requirement that facts be construed in the light most favorable to the Plaintiff, 

however, does not mean that the court must find a factual dispute where record evidence 

contradicts Plaintiff’s wholly unsupported allegations. After a moving party has carried its 

initial burden of showing that no genuine issues of material fact remain in dispute, the 

burden shifts to the non-moving party to present specific facts demonstrating a genuine 

issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 

(1986). “The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v. Toledo 

Hosp., 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 

863 (6th Cir.1986)). In order to defeat the motion for summary judgment, the non-moving 

party must present probative evidence that supports its complaint. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249-50 (1986). The non-moving party's evidence “is to be 

believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (emphasis 

added). The court determines whether the evidence requires submission to a jury or 

whether one party must prevail as a matter of law because the issue is so one-sided. Id.

at 251-52. 

 To demonstrate a genuine issue of fact, the opposing party “must do more than 

simply show that there is some metaphysical doubt as to the material facts .... Where the 

record taken as a whole could not lead a rational trier of fact to find for the nonmoving 

party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 

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It is the Plaintiff’s burden to point out record evidence to support his claims. “[T]he Court 

has no duty when deciding a motion for summary judgment to scour the record for 

evidence that supports a plaintiff’s claims.” Abdulsalaam v. Franklin County Bd. Of 

Com’rs, 637 F. Supp.2d 561, 576 (S.D. Ohio 2009) (citing Williamson v. Aetna Life Ins. 

Co., 481 F.3d 369, 379 (6th Cir. 2007)). 

B. Defendant’s Motion for Summary Judgment

 As detailed above, Plaintiff’s complaint alleges that Defendant discriminated and 

retaliated against her based on her age, race and gender in violation of Federal law. Fifth 

Third argues that it is entitled to judgment as a matter of law because (1) Plaintiff failed 

to file a Complaint within 90 days of the EEOC’s issuance of a Notice of Right to Sue 

Letter concerning her 2015 EEOC charge; (2) she failed to exhaust her administrative 

remedies for some of the claims in her Complaint; and (3), she failed to put forth any 

admissible evidence to establish a prima facie case for the remaining claims in her 

Complaint. Fifth Third’s contentions are well-taken. 

C. Fifth Third is entitled to Judgment as a Matter of law 

 1. 2015 EEOC Charge 

 A plaintiff seeking relief under Title VII of the ADA must file suit 

within ninety days of receipt of a right to sue letter from the EEOC. See 42 U.S.C. § 

2000e-(5)(f)(1); Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 

552, 557 (6th. Cir. 2000). Like any other statute of limitations, the 90-day deadline bars 

suit if the complaint is not timely filed. Truitt v. County of Wayne, 148 F.3d 644, 646-7 (6th 

Cir. 1998) (holding that the ninety-day filing requirement is a “timing requirement similar 

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to a statute of limitations.”). This statutory limit has been strictly enforced by federal 

courts. Graham-Humphreys, 209 F.3d at 557. Further, the Supreme Court has held that 

“strict adherence to the procedural requirements specified by the legislature is the best 

guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U.S. 

807, 826 (1980). 

 In this Circuit, it is presumed that a Plaintiff received notice within five days of the 

date the EEOC mailed the NRTS Letter, and the 90-day period begins to run after the 5th 

day unless the Plaintiff can submit evidence to the contrary. Graham-Humphreys, 209 

F.3d at 557 citing Banks v. Rockwell Intern. N. Am. Aircraft Operations, 855 F.2d 324, 

325–27 (6th Cir.1988). 

 Here, Plaintiff alleges that non-African Americans were granted schedule changes 

more often than African Americans and they were allowed shift bids when they had not 

worked in the department for the requisite 6 months. These same claims were alleged in 

the Plaintiff’s 2015 Charge of discrimination. (Doc. 61, Ex. E). The EEOC completed its 

investigation and mailed a Dismissal and Notice of Right to Sue Letter “NTRS”) on August 

31, 2015. Id. Pursuant to 42 U.S.C. § 2000e–5(f)(1), Plaintiff should have filed a lawsuit 

by December 5, 2015. However, Plaintiff did not file this action until February 2017. 

 Plaintiff states she cannot determine the date she received the Notice of Right to 

Sue Letter; however, she did not submit any evidence that she did not receive the Right 

to Sue letter within five days of the mailing date. Nor does she argue that she did not 

receive the letter. Notably, Plaintiff attached it as a supplement to her complaint filed in 

February 2017. Plaintiff's pro-se status does not excuse her failure to comply with the 

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90-day filing requirement. E.g., Anderson v. Hamilton Cnty. Bd. of Comm'rs, No. 

1:05cv344, 2006 WL 2709767, at *3 (S.D. Ohio 2006); cf. Jourdan v. Jabe, 951 F.2d 108, 

110 (6th Cir. 1991) (The plaintiff's pro se Complaint “was not dismissed as the result of 

inartful pleading or any lack of legal training, but rather because he failed to adhere to 

readily comprehended court deadlines of which he was well-aware.”). 

 Accordingly, Plaintiff’s claims asserted in her 2015 charge of discrimination fail as 

a matter of law because they are untimely. See, Graham-Humphreys, 209 F.3d at 557; 

Baldwin County Welcome Center v. Brown, 466 U.S. 147, 196 (1984) (per curiam). 

 2. Plaintiff failed to properly oppose Fifth Third’s summary judgment motion

 Next, Fifth Third argues that Plaintiff failed to properly oppose summary judgment 

by failing to cite to admissible evidence in the record as required by Rule 56 (c) of the 

Federal Rules of Civil Procedure, therefore, Fifth Third is entitled to judgment as a matter 

of law pursuant to Rule 56(e). As detailed above, Rule 56 (c) provides that the nonmovant 

must “cit[e] to particular parts of materials in the record” to demonstrate the existence of 

a genuine dispute of material fact, or otherwise “show[ ] that the materials cited” by the 

moving party do not demonstrate that no disputed issue of material fact exists. 

Fed.R.Civ.P. 56(c)(1). 

 Thus, to demonstrate a genuine issue of fact, the opposing party “must do more 

than simply show that there is some metaphysical doubt as to the material facts .... Where 

the record taken as a whole could not lead a rational trier of fact to find for the nonmoving 

party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 

It is the Plaintiff’s burden to point out record evidence to support her claims. “[T]he Court 

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has no duty when deciding a motion for summary judgment to scour the record for 

evidence that supports a plaintiff’s claims.” Abdulsalaam v. Franklin County Bd. Of 

Com’rs, 637 F. Supp.2d 561, 576 (S.D. Ohio 2009) (citing Williamson v. Aetna Life Ins. 

Co., 481 F.3d 369, 379 (6th Cir. 2007)). 

 Fifth Third asserts that Plaintiff’s Responses to its Proposed Statement of 

Undisputed Facts is not supported by any citations to any contradicting evidence in the 

record as required by paragraph (E)(3)(b) of the undersigned’s Standing Orders and does 

not contain a list of each material fact that the Plaintiff contends must be tried. Fifth Third 

further argues that many of the exhibits attached to Plaintiff’s memorandum in opposition 

do not meet the requirements of Rule 56 (c). In this regard, Fifth Third notes, inter alia, 

that Plaintiff purports to submit 5 witness statements in paragraph 50, but the 

questionnaires she submitted as Exhibits 1-5 are not witness statements, are 

inadmissible hearsay, and do not constitute evidence of discrimination. Moreover, they 

do not address the specific allegations in her complaint or her EEOC charges. She also 

makes various conclusory allegations of discrimination and statements of fact but fails to 

cite to any evidence in the record at all. Namely, on page 4 of her Memorandum she 

states, “the defendant settled their position when they agreed that they did indeed allow 

a different set of rules to apply to the white males.” But she fails to cite to any evidence in 

the record where Fifth Third supposedly made such an admission. 

 As such, Fifth Third asserts that pursuant to Rule 56(e) if the Plaintiff fails to 

properly support an assertion of fact or fails to properly address Fifth Third’s asserted 

facts, the Court may consider the fact undisputed for summary judgment purposes and 

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grant summary judgment if Fifth Third’s motion and supporting materials, including the 

facts considered undisputed show that Fifth Third is entitled to summary judgment. The 

undersigned agrees and for the reasons that follow, recommends that Fifth Third’s well 

supported motion for summary judgment should granted. 

 3. Plaintiff fails to establish a prima face case of discrimination and/or retaliation 

Title VII prohibits unlawful employment discrimination on the basis of race, or in 

retaliation for making “a charge ... in an investigation, proceeding, or hearing under this 

title.” 42 U.S.C. §§ 2000e-3(a) and 2000e-16(a). Plaintiff alleges that she suffered 

discrimination and retaliation on the basis of her race. Because Plaintiff offers no direct 

evidence of race discrimination, the familiar McDonnell Douglas burden-shifting 

framework applies to Plaintiff's claims. See McDonnell Douglas v. Green, 411 U.S. 792, 

802, 93 S. Ct. 1817 (1973). 

Under the burden-shifting framework of McDonnell Douglas, the plaintiff must first 

establish a prima facie case under the relevant statute. McDonnell Douglas, 411 U.S. at 

802, 93 S.Ct. 1817. “A plaintiff's burden in establishing a prima facie case is not intended 

to be an onerous one.” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1114 

(6th Cir. 2001). Once the plaintiff has established a prima facie case, the burden shifts to 

the defendant to articulate a legitimate, non-discriminatory reason for the employment 

decision. If the defendant makes the appropriate showing, the burden shifts back to the 

plaintiff to demonstrate that the defendant's proffered reason was a pretext for 

discrimination. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–55. (1981). 

“To establish a prima facie case of employment discrimination, a plaintiff must 

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demonstrate that: (1) she is a member of a protected class; (2) she was qualified for her 

job; (3) she suffered an adverse employment decision; and (4) she was replaced by a 

person outside the protected class or treated differently than similarly situated nonprotected employees.” White, 533 F.3d at 391 citing Arendale v. City of Memphis, 519 

F.3d 587, 603 (6th Cir. 2008); accord Clay v. United Parcel Serv., Inc., 501 F.3d 695, 703 

(6th Cir. 2007). See also, Burnett v. Carington Health Systems, U.S. Dist. No. 1:11–cv–

324, 2012 WL 6001034 (S.D. Ohio, Nov. 30, 2012). 

In order to establish a prima facie case of retaliation under Title VII, Plaintiff must 

show that (1) she engaged in activity protected by Title VII; (2) her exercise of such 

protected activity was known by the defendant; (3) thereafter, the defendant took an 

action that was ‘materially adverse’ to the plaintiff; and (4) a causal connection existed 

between the protected activity and the materially adverse action.” Laster v. City of 

Kalamazoo, 746 F. 3d 714, 728 (6th Cir. 2014) citing Jones v. Johanns, 264 Fed.Appx. 

463, 466 (6th Cir. 2007). 

Thus, common to both the employment discrimination and retaliation claims is a 

showing of an adverse employment action, which is defined as a “materially adverse 

change in the terms and conditions of [plaintiff's] employment.” Smith v. City of Salem, 

Ohio, 378 F. 3d 566 (6th Cir. 2004) citing Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th 

Cir.1999). 

Defendant contends that Plaintiff’s discrimination and retaliation claims fail as a 

matter of law because she cannot establish that she suffered an adverse employment 

action. Plaintiff appears to assert that her counseling and coachings were adverse 

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actions. However, as noted by Defendant, courts have repeatedly held that, “[a] written 

reprimand, without evidence that it led to a materially adverse consequence such as 

lowered pay, demotion, suspension, or the like, is not a materially adverse employment 

action.” Taylor v. Geithner, 703 F. 3d 328, 338 (6th Cir. 2013) citing Creggett v. Jefferson

Cnty. Bd. of Educ., 491 Fed.Appx. 561, 566, No. 11-6375, 2012 WL 3104508, at *3 (6th 

Cir. Aug. 1, 2012)). Here, Plaintiff has not put forth any evidence that the counseling and 

coachings were unwarranted, nor has she put forth any evidence that any of these write 

ups resulted in lower pay, a demotion, suspension. 

Plaintiff further asserts that she suffered an adverse action because she was 

constructively discharged. Constructive discharge occurs when an employer, with 

discriminatory purpose, makes working conditions “‘so difficult or unpleasant that a 

reasonable person in the employee's shoes would feel compelled to resign.’” Kocsis v. 

Multi-Care Management, Inc., 97 F.3d 876, 882 (6th Cir. 1996) (quoting Easter v. Jeep 

Corp., 750 F.2d 520, 522-23 (6th Cir. 1984)). “To demonstrate constructive discharge, a 

plaintiff must adduce evidence to show that (1) the employer deliberately created 

intolerable working conditions, as perceived by a reasonable person, (2) the employer did 

so with the intention of forcing the employee to quit, and (3) the employee actually 

quit.” Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012) (internal quotation marks and 

alterations omitted) (quoting Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 

1080 (6th Cir. 1999)). “To determine if there is a constructive discharge, both the 

employer's intent and the employee's objective feelings must be 

examined.” Id. (quoting Moore, 171 F.3d at 1080). 

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The type of proof required to show constructive discharge is high. See Groening 

v. Glen Lake Cmty. Sch., 884 F.3d 626, 630 (6th Cir. 2018); see also Cleveland v. S. 

Disposal Waste Connections, 491 Fed. Appx. 698, 708 (6th Cir. 2012) (disparaging 

comments isolated to only a few incidents and by a few individuals do not alter working 

conditions). To determine whether an employee's working conditions were objectively 

intolerable, courts consider whether the employee was demoted, had a reduction in salary 

or job duties, was reassigned to menial or degrading work, or otherwise badgered, 

harassed, or humiliated. Russell, 739 Fed. Appx. at 794-795. 

Here, Plaintiff has failed to put forth any evidence that she was constructively 

discharged. As noted by Defendant, she was written up for valid attendance and/or 

performance issues and policy violations and she failed to produce evidence that these 

write ups were false. (Doc. 61, Ex. I, Plaintiff Depo., at 131-133; 176-186; 193-197). She 

also did not receive any preferential shift bids because she ranked last or almost last in 

all of the stack ranks. Lastly, the interaction she described between her and Smith in her 

hostile work environment complaint was not hostile and doesn’t rise to the level of being 

severe and pervasive as required by law. 

4. Fifth Thirds legitimate non-discriminatory reason for its actions and Plaintiff's 

arguments regarding pretext 

Even if the Plaintiff could establish a prima facie case of discrimination or 

retaliation, Fifth Third has proven a legitimate, nondiscriminatory business purpose for its 

actions. The uncontested evidence shows that Plaintiff was written up for valid 

attendance and/or performance issues and policy violations. (Doc. 61, Ex. I, Plaintiff 

Depo., at 131-133; 176-186; 193-197). Additionally, the evidence of record establishes 

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that Plaintiff did not receive any preferential shift bids because she ranked last or almost 

last in all of the stack ranks. (See Doc. 61, Ex. D, Smith Decl.). The burden now shifts to 

Plaintiff to prove that Defendants legitimate non-discriminatory reasons for its actions 

were pretextual. Plaintiff, however, fails to provide any evidence to establish that the 

stated reasons for Fifth Thirds employment decisions had no basis in fact; did not actually 

motivate Fifth Third’s actions; or were insufficient to warrant such actions. See Manzer, 

29 F.3d at 1084. 

In light of the foregoing, Plaintiff has failed to rebut Defendant’s legitimate nondiscriminatory reasons for its actions and has failed to produce any evidence that Fifth 

Third intended to discriminate or retaliate against Plaintiff on the basis of race. See 

Thurman, 90 F.3d at 1166 (citing Hicks, 509 U.S. at 502) (“The ultimate burden of 

persuasion remains with the plaintiff to prove that the employer’s reasons were a pretext 

for discrimination and that the employer intended to discriminate on the basis of race.”) 

Although the summary judgment standard requires that evidence of record be viewed in 

the light most favorable to the nonmoving party, it does not require that all bald assertions, 

opinions, or even genuinely held beliefs asserted by the nonmoving party be adopted 

wholeheartedly by a court. Diaz v. Mitchell's Salon and Day Spa, Inc., Case No. 1:09-cv882, 2011 WL 379097, * 7 (S.D. Ohio 2011) (J. Weber). Plaintiff’s unsupported 

conclusions are insufficient to meet her burden of establishing that Fifth Third’s proffered 

reasons for its employment decisions were a pretext for racial discrimination. 

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4. Hostile Work Environment 

In order to establish a claim for a hostile work environment, Plaintiff must present 

evidence of harassment that “unreasonably interferes with her work performance and 

creates an objectively intimidating, hostile, or offensive work environment.” Younis v. 

Pinnacle Airlines, Inc., 610 F. 3d 359,362 (6th Cir. 2010) citing Grace v. USCAR, 521 

F.3d 655, 678 (6th Cir. 2008). Plaintiff must show that the behavior is so severe and 

pervasive “as to constitute a hostile or abusive working environment both to the 

reasonable person and the actual victim.” Grace at 678, citing Randolph v. Ohio Dep't of 

Youth Svcs., 453 F.3d 724, 733 (6th Cir.2006). 

In response to Fifth Third’s motion for summary judgment, it appears that Plaintiff 

is arguing that her entire employment experience with Fifth Third constitutes a hostile 

working environment. But again, she failed to put forth any evidence supporting these 

claims. As detailed above, Fifth Third’s Motion for Summary Judgment cites to specific 

evidence in the record to support every coaching and counseling she received, and the 

Plaintiff has not put forth any evidence to the contrary. For these reasons, Defendant is 

entitled to judgment as a matter of law with respect to Plaintiff’s hostile work environment 

claims. 

5. FMLA 

Plaintiff purportedly claims that she was denied leave under the FMLA and that 

she was disciplined for taking FMLA leave. The Sixth Circuit recognizes two distinct 

theories for recovery under the FMLA: (1) the “entitlement” or “interference” theory arising 

from 29 U.S.C. § 2615(a)(1); and (2) the “retaliation” or “discrimination” theory arising 

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from 29 U.S.C. § 2615(a)(2). Hoge v. Honda of America Mfg., Inc., 384 F. 3d 238, 244 

(6th Cir. 2004) citing Taylor v. Union Inst., 30 Fed.Appx. 443, 2002 WL 252443, at *7 (6th 

Cir. Feb.19, 2002) (unpublished opinion) (quoting Hodgens v. Gen. Dynamics Corp., 144 

F.3d 151, 159 (1st Cir.1998)). 

As noted by Defendant, Plaintiff claims that Fifth Third’s HR department falsified 

claims of non-receipt of documents and issued a false coaching document. (Complaint 

¶17). Thus, it appears she’s asserting an interference claim. To prevail on this claim, 

Plaintiff must show that she was denied an entitlement under the FMLA. 

Here, Fifth Third’s HR department does not handle FMLA leave. Fifth Third uses 

CIGNA, for this purpose. According to CIGNA, Plaintiff never sought approval for her 

August 2015 absences until she received counseling on September 21, 2015. (Doc.61, 

Ex. Darpal Decl. at 68-72). Fifth Third also notes that it continued her first deposition to 

give her time to find and produce any additional FMLA documents concerning these 

August 2015 absences and she still failed to produce any. (Doc. 61, Ex. I, Plaintiff Depo. 

Vol II at p. 532-538 and Depo., Ex. 71.). 

In response to summary judgment, Plaintiff submits Ex. 26, which are various fax 

confirmations and random letters to CIGNA, but none of those documents shows her 

request to CIGNA to approve FMLA leave for her absences on 8/5 and 8/6 of 2015. In 

any event, ultimately her FMLA leave for 8/5 and 8/6 was approved. As such, Plaintiff 

cannot show that she was denied an entitlement under the Act or that she was disciplined 

for taking approved FMLA leave. As detailed above, she was disciplined for being absent 

from work and failing to notify CIGNA for approval of FMLA leave per Fifth Third’s policy. 

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Accordingly, Plaintiff’s FMLA claim fails a matter of law. 

III. Conclusion 

For these reasons, IT IS THEREFORE RECOMMENDED THAT Defendant’s 

motion for summary judgment (Doc. 61) be GRANTED and this case be TERMINATED

on the active docket of the Court. 

 s/ Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 

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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

KATHLEEN HEAROD, 

 Case No. 1:17-cv-175 

 Plaintiff, 

 J. Black 

 M.J Bowman 

vs. 

FIFTH THIRD BANK,

Defendant. 

NOTICE 

 

 Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN 

(14) DAYS after being served with a copy of those objections. Failure to make objections 

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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