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File Name: 15a0774n.06

Case No. 15-1020

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CARMEN GARRETT,

Plaintiff-Appellant,

v.

SOUTHWESTERN MEDICAL CLINIC,

LAKELAND REGIONAL HEALTH 

SYSTEM, and LAKELAND MEDICAL 

PRACTICES

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF 

MICHIGAN

BEFORE: ROGERS and DONALD, Circuit Judges; ROSE, District Judge.

OVERVIEW

BERNICE BOUIE DONALD, Circuit Judge. Appellant Carmen Garrett (“Garrett”) 

appeals the district court’s grant of summary judgment on her claim that her employer fired her 

because of her race in violation of Title VII of the Civil Rights Act of 1964, as amended, 

42 U.S.C. § 1981a, 42 U.S.C. § 1981, and the Elliott-Larsen Civil Rights Act, Mich. Comp. 

Laws § 37.2101 et. seq. This appeal effectively raises four issues: (1) whether the district court 

erred in concluding that Garrett had to introduce additional evidence to prove that the asserted

 

 The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by 

designation.
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reason for firing her was pretextual beyond what it considered in evaluating her prima facie case, 

(2) whether the district court erred in applying the “same actor” inference at the summary 

judgment stage, (3) whether the district court erred in refusing to admit a statement into evidence 

on hearsay grounds, and (4) whether the district court correctly held that a rational jury could not 

find that Garrett would carry her burden at trial. For the reasons set out below, we affirm the 

judgment of the district court. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Garrett’s Employment History

Southwestern Medical Clinic (“Southwestern”) hired Garrett as an x-ray technician in 

November 2008.

1

 Marilyn Hurrle managed the enterprise and hired Garrett after she and 

Virginia Walker, a human resources representative, interviewed her. 

Garrett alleges several instances of discriminatory treatment. First, Garrett alleges that 

Hurrle changed her shift times in November 2011 to prevent her from carpooling with Cicely 

Maben (“Maben”), a black co-worker whose case we recently decided, Maben v. Sw. Medical 

Clinic., No. 15-1101 2015 WL 6719158 (6th Cir. Nov. 4. 2015). Second, Garrett alleges that 

Hurrle told a white co-worker, Lisa Doolen (“Doolen”) that she had to separate Garrett and

Maben because “two inappropriate blacks shouldn’t be working together.” Third, Garrett alleges 

that she was assigned cleaning jobs more often than white co-workers. 

Southwestern alleges that Garrett failed to disclose the fact that Lakeland—which 

acquired Southwestern— previously fired her for sleeping on the job and that another employer 

fired her for time card fraud on her job application. Southwestern further alleged that Garrett 

had several issues over the years for which it reprimanded and counseled her. For example, 

 

1

Lakeland Regional Heath System and Lakeland Medical Practices (collectively “Lakeland”) acquired 

Southwestern in February of 2010.
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Garrett was rude to a patient after driving that same patient’s wheelchair through a wall. In 

addition, Southwestern alleged that Garrett incorrectly processed x-ray films, repeatedly failed to 

report for work on time, failed to keep her workspace clean, failed to “punch in and out” of 

work, used improper telephone etiquette, and consumed alcohol on the job. These various issues 

caused Garrett to accumulate five verbal warnings, a written warning, and a written warning with 

a three-day suspension before her termination. However, a 2011 performance review described 

Garrett as “a solid performer,” while noting that she fell short of Southwestern’s “five star 

behaviors.” 

One incident from April 2012 appears particularly important to both parties. Hurrle 

received two anonymous letters informing her about the unauthorized release of private medical 

information. Both Garrett and Doolen admitted leaving their computers and/or passwords 

unsecured, which could have allowed someone else access. This led to both Garrett and Doolen 

receiving a written warning and three-day suspension. Less than two weeks after the suspension, 

Garrett agreed to cover for a co-worker. However, Garrett says she forgot and when 

Southwestern called, she immediately drove into work, arriving 17 minutes late. Southwestern 

alleges that Garrett promised to cover for another co-worker and similarly failed to show up on 

time on a separate occasion during that time period. On June 13, 2012, Hurrle terminated 

Garrett. The termination notice explicitly listed “failure to show up for work” as the reason for 

firing. Hurrle later indicated that Garrett’s tardiness after agreeing to cover for a co-worker was 

merely the last straw. 

For her part, Garrett alleged that Hurrle treated white co-workers who had similar issues 

less harshly. The district court found that two of the co-workers were sufficiently “similarly 
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situated” to allow Garrett to make out a prima facie case of discrimination. We include both 

here:

i. Mellanie Gardiner

The district court found that Gardiner accumulated seven absences before receiving written 

notice of the attendance policy, even though she was eligible for a suspension per Southwestern 

policy. Although Hurrle told her that another absence would result in a suspension, Gardiner 

accumulated 14-15 more absences before receiving a three-day suspension. 

In addition, she received verbal warnings for lab errors and let her medical certification 

expire, although she assured Southwestern that she was current on all necessary certifications. 

Gardiner eventually quit, and Hurrle asserted that she had been progressing towards termination.

ii. Shanna Damouth

The district court found that Damouth had 37 tardies to work in a nine-month period 

between October 31, 2011 and July 31, 2012, which equals 12 absences under Southwestern 

policy. Southwestern policy allowed it to terminate an employee with eight absences. Hurrle 

first provided a written notice of the company’s attendance policy on December 21, 2011, and 

then later a written warning with three day suspension in July 2012. After the suspension, 

Gardiner had 12 more absences (taking into account actual absences and tardies). 

In a February 2012 performance review, Hurrle counseled Damouth for attitude,

attendance issues, and lab errors (such as drawing blood from an arm while an IV was running). 

A November 2012 performance review faulted her for again drawing blood while an IV was 

running. Damouth also accessed the information that was unlawfully released, but Southwestern 

asserts that Damouth had a legitimate reason to access the files because she was working with 
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the patients. After Damouth failed to show up for work in September 2013, Southwestern 

terminated her. 

B. Equal Employment Opportunity Commission Proceedings

On October 9, 2012, Garrett filed a complaint with the Equal Employment Opportunity 

Commission (“EEOC”) alleging racial discrimination on the part of Southwestern. In her 

complaint, Garrett said that she was written up for an absence incurred because she was taking 

her child to the hospital; she later admitted that this allegation was false. The EEOC could not 

determine whether any anti-discrimination statutes were violated, or for that matter, whether 

Southwestern was in compliance with all anti-discrimination statutes. 

C. District Court Proceedings

Subsequently, Garrett brought suit in the United States District Court for the Western 

District of Michigan. The district court granted summary judgment to Southwestern on 

December 19, 2014. In evaluating the motion, the court treated Garrett’s claims under Title VII 

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 1981a, 42 U.S.C. § 1981 and the 

Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et. seq. the same. 

Because Garrett did not have direct evidence of discrimination, the district court applied 

the McDonnell-Douglas framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). Initially, the plaintiff must make out a prima facie case that racial discrimination 

occurred. To do so, the plaintiff must show that she (1) was a member of a protected class, 

(2) suffered an adverse employment outcome, (3) was qualified for the position, and (4) was 

replaced by someone outside the protected class or was treated differently than similarly situated 

non-protected employees. Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006)

(quoting DiCarlo v Potter, 358 F.3d 408, 415 (6th Cir. 20040). 
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Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to 

offer a legitimate, non-discriminatory reason for the negative employment outcome. Then the 

burden shifts back to the plaintiff to prove that the explanation provided for the adverse 

employment outcome is pretextual. Id. at 706-07. A plaintiff can prove pretext by showing that 

the proffered reason (1) has no basis in fact, (2) did not actually motivate the employer’s 

decision to impose adverse employment consequences, or (3) was insufficient to warrant the 

employer’s response. Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 434 (6th Cir. 2002)

(quoting Dews v. AB Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)).

The district court found that Garrett made out a sufficient prima facie case to survive 

summary judgment. However it also concluded that Southwestern had a legitimate nondiscriminatory rationale for the firing and that Garrett would be unable to prove that explanation 

was pretextual at trial. Therefore, the district court granted summary judgment. All of the issues 

raised in this appeal concern whether Garrett could prove that Southwestern’s rationale for firing 

her was a pretext for discrimination. 

I. JURISDICTION

Both parties agree that jurisdiction is appropriate. The district court had jurisdiction over 

the Title VII and 42 U.S.C. § 1981 claims under federal question jurisdiction. 28 U.S.C. § 1331. 

The district court had supplemental jurisdiction of the Elliott-Larsen Civil Rights Act, Mich. 

Comp. Laws § 37.2101 claim because it was related to the federal civil rights claims. 28 U.S.C. 

§1367(a). This Court has jurisdiction under 28 U.S.C. § 1291 because Garrett timely filed a 

notice of appeal on January 5, 2015, and the order granting summary judgment came on 

December 19, 2014. Fed. R. App. P. 4.
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II. STANDARD OF REVIEW

This Court reviews grants of summary judgment de novo. Wexler v. White’s Fine 

Furniture, Inc., 317 F.3d 564, 569 (6th Cir. 2003) (en banc). We will uphold granting a motion 

for summary judgment when there is no genuine dispute of material fact and judgment is 

appropriate as a matter of law. Fed R. Civ. P. 56. In evaluating a motion for summary 

judgment, this Court must consider the record as a whole—while making all legitimate 

inferences in favor of the non-moving party—and decide whether the record allows a reasonable 

jury to conclude that the plaintiff would meet her burden at trial. Agristar Fin. Corp. v. Van 

Sickle, 967 F.2d 233, 236 (6th Cir. 1992).

III. ANALYSIS

On appeal, Garrett offers four reasons for reversing the district court’s grant of summary 

judgment: (1) the district court erred in concluding that Garrett had to introduce additional 

evidence to prove that the asserted reason for firing her was pretextual beyond what it considered 

in evaluating her prima facie case, (2) the district court erred in applying the “same actor” 

inference at the summary judgment stage, (3) the district court erred in refusing to admit a 

statement into evidence on hearsay grounds, and (4) the district court erred in holding that a 

rational jury could not find that Garrett would carry her burden at trial. We consider each 

argument separately.

A. Did the district court err in considering Garrett’s comparison evidence in the prima facie 

case, but not to prove pretext?

In its decision, the district court decided that after considering Gardiner and Damouth in 

the light most favorable to the plaintiff, they were sufficiently similarly situated that Garrett 

could establish a prima facie case. However, the district court later refused to consider evidence 
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of Gardiner and Damouth’s conduct in deciding whether Southwestern’s explanation for 

Garrett’s termination was pretextual. 

Garrett did not argue that Southwestern’s explanation was factually false, or even that her 

conduct could not warrant termination, so she needed to prove that the explanation given was a 

cover-up for discrimination. Since Garrett admitted the conduct that Southwestern cited in its 

rationale to fire her, the district court held that she needed evidence beyond what she introduced 

when establishing her prima facie case. Id. at 14, (“[w]hen a plaintiff admits the factual bases of 

the employer’s reason for terminating her, she must introduce evidence beyond her prima facie 

case to show pretext” (quoting Haughton v. Orchid Automation, 206 F. App’x 524, 533 (6th Cir. 

2006)). 

This was erroneous. Although one can plausibly read Haughton to mean that a plaintiff 

must introduce different evidence to prove pretext than she used to establish a prima facie case, 

we decline to embrace such an interpretation because it is precluded by Reeves v. Sanderson, 

Plumbing Products, 530 U.S. 133 (2000), in which the Supreme Court rejected “the premise that 

a plaintiff must always introduce additional, independent evidence of discrimination” beyond 

that presented in his or her prima facie case in order to prove pretext. Id. at 149. A “pretext 

plus” requirement could produce unjust results. In this case, assume that Garrett’s sole evidence 

of racism was to find ten white employees guilty of the exact same misconduct she was and that 

further, they received no sanctions from Southwestern. Assuming Garrett introduced these ten 

employees to make a prima facie case, she would have to lose a motion for summary judgment 

because she does not have additional evidence to prove pretext. However, a case where ten 

white employees did the exact same things a minority employee did, yet received more lenient 

treatment, is one where a reasonable jury could find that discrimination was the employer’s real 
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reason for firing. Instead, we read Haughton to say that the plaintiff’s prima facie evidence 

alone will not always be adequate to prove pretext. Evidence produced in support of a plaintiff’s 

prima facie case “may, but will not necessarily, suffice to show a genuine issue of material fact 

concerning pretext.” Blair v. Henry Filters, Inc., 505 F.3d 517, 533 (6th Cir. 2007). In making a 

prima facie case, the plaintiff’s evidence must make an allegation that she was treated worse than 

white co-workers merely plausible. 

The district court therefore erred, but because the record as a whole presents insufficient 

evidence to justify a jury verdict in Garrett’s favor, this error does not merit reversal. 

A. Should the “same actor” inference apply at the summary judgment stage?

In its decision, the district court applied the “same actor” inference. This was permissible 

under circuit precedent. Courts sometimes choose to apply the “same actor” inference when the 

same person who hired the plaintiff also fired the plaintiff. In such cases, a presumption can 

arise that an employee’s race did not motivate the termination because the sort of person who 

would discriminate against a particular race would not also hire someone of that race. See 

Wofford v. Middletown Tube Works, Inc., 67 F. App’x 312, 318 (6th Cir. 2003). In this case, the 

district court found that Hurrle was the same person who hired and fired Garrett. It then held 

that the “same actor” inference weakened Garrett’s case that discrimination occurred. 

The main case on point here is Wexler. Garrett claims that Wexler prevents district courts 

in this circuit from applying the “same actor” inference on motions for summary judgment. 

However, Wexler expressly contemplated district courts applying the “same actor” inference at 

the summary judgment stage. 317 F.3d at 573 (“[A]lthough the factfinder is permitted to draw 

this inference, it is by no means a mandatory one, and it may be weakened by other evidence.”). 

Notably, Wexler overruled an earlier panel decision in the same case that found that the “same 
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actor” inference was a strong one. Wexler v. White’s Fine Furniture Inc., 246 F.3d 856, 866 (6th 

Cir. 2001). That suggests that if a district court applies the “same actor” inference in this circuit 

now, its import must be relatively modest. Here, the district court appears to have accorded the 

same actor inference modest weight overall. Garrett v. Sw. Med. Clinic PC, Lakeland Regional 

Health Sys. and Lakeland Med. Practice, 2014 WL 7330947, at *12 (W.D. Mich 2014) (“[t]hus, 

the same actor inference is applicable. However, it is not mandatory or dispositive in 

Defendants’ favor. Rather, it merely weakens Plaintiff’s evidence of discrimination. Plaintiff 

must offer strong evidence of pretext to demonstrate that Hurrle discriminated on the basis of 

race by firing Plaintiff even though it appears she did not discriminate when hiring Plaintiff.”). 

Applying Wexler, we therefore uphold the district court’s use of the same actor inference.

B. Did the district court err in refusing to admit evidence of Hurrle’s statement about Garrett 

and Maben?

Garrett alleges that Hurrle told Doolen that Hurrle would have to separate Garrett and 

Maben because “two inappropriate blacks shouldn’t be working together.” If actually said, this 

is certainly a troubling statement that suggests racial bias on Hurrle’s part. However, the district 

court correctly ruled that this statement was hearsay and refused to consider it. Hearsay is when 

a party offers an out-of-court statement for its truth. Fed. R. Evid. 801. This case presents a 

double hearsay problem and we therefore have to consider Hurrle’s alleged statement to Doolen, 

and then Doolen’s statement to Garrett separately. 

The district court properly found that Hurrle’s statement qualifies as non-hearsay as the 

statement of a party opponent. Fed. R. Evid. 801(d)(2). However, Doolen’s statement to Garrett 

is hearsay. We have already so held in a companion case involving the same alleged statement. 

Maben, 2015 WL 6719158, at *6. Garrett understandably tries to use United States v. 

Portsmouth Paving Co., 694 F.2d 312 (4th Cir. 1982) to argue that a statement conveyed through 
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a third party can qualify as the statement of a party opponent. In that case, a man testified about 

how he called to speak to a businessman. Id. at 321-22. The businessman was not in the office, 

so the businessman’s secretary asked him [her boss] the caller’s question and then relayed the 

answer from her boss to the original caller in a phone conversation. Id. The fourth circuit 

affirmed the district court’s ruling that the man’s testimony was admissible because the secretary 

was an agent of her boss for the purpose of relaying messages. Id. That meant her statement to 

the man was a statement of an opposing party made by the party’s agent acting in the scope of 

her employment. Fed. R. Evid. 801(d)(2)(D). 

However in this case, relaying comments from management was not part of Doolen’s job 

description or implicit duties. Since the statement therefore does not qualify as the statement of 

a party opponent, we would have to see if there is an exception to the hearsay rule that would 

allow the testimony, and Garrett nowhere argued that such an exception applies. Therefore, the

district court properly decided not to consider Hurrle’s statement.

C. Was the district court correct to conclude that a reasonable jury could not find that 

Garrett would meet her burden of proof to show pretext?

The district court granted summary judgment because it found that there was insufficient 

evidence to permit a jury to conclude that Southwestern’s rationale for firing Garrett was 

pretextual. To meet her burden, Garrett would need to show by a preponderance of the evidence 

that Southwestern’s asserted rationale for firing her was really a cover for discrimination. Burns 

v. City of Columbus, 91 F.3d 836, 843 (6th Cir. 1996). Evidence of Hurrle’s troubling statement 

is inadmissible, so Garrett’s evidence consists of (1) her allegations—not repeated in her 

appellant brief—that she was assigned extra cleaning responsibilities compared to white 

employees and (2) evidence of Gardiner’s and Damouth’s lenient treatment for what Garrett 

claims are similar infractions. 
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Although Gardiner and Damouth were hardly model employees, there are enough 

differences that they do not constitute terribly good comparisons. Neither is alleged to have used 

alcohol on the job, driven a patient through a wall, or behaved rudely to patients as Garrett did. 

Since they are not really similarly situated in respect to their infractions, the fact that 

Southwestern treated them differently is not a strong indicator of discrimination. 

A jury would have to weigh this relatively weak comparison evidence against evidence 

that Hurrle hired several other black employees including one to replace a white employee, 

attended a black employee’s graduation, and received positive reviews from other black 

employees. It would also have to consider Garrett’s long track record of disciplinary issues 

outlined earlier. We do not see how a reasonable jury could find by a preponderance of the 

evidence that Southwestern’s rationale for firing her was really just a cover for discrimination.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.