NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1275n.06 No. 11-6360 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

KATHL EEN L AWS, Plaintiff - Appellant,

v. HEAL THSOUTH NO RTHERN KENTUCKY REHAB I L I TATI ON HOSPI TAL L I MI TED PARTNERSHI P dba HEAL THSOUTH KENTUCKY REHAB I L I TATI ON HOSPI TAL , Def endant - Appellee

. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF KENTUCKY

BEFORE: CLAY and S UTTON, Circuit Judges; and RICE, District Judge. * RI CE, J ., delivere d the opinion of the court except for Part I I I .A.2. SUTTON, J ., joined in all parts except Part I I I .A.2 and delivere d a separ ate opinion, in which CL AY, J ., joined and which constitutes the opinion of the cour

t. RICE, District Judge. Plaintiff-Appellan t K a th le e n L a w s ( “ L a w s ” ) a p p e a ls f r o m the district court’s o rd er g ranting summary judgme nt in favor of Def endant- Appellee Hea lthSout h Norther n Kentucky Rehabilitation Hospital L imited Partnership (“H ealthSouth”). Following her termination from Hea lthSout h, L aws filed suit alleg ing violations o f the Americ ans with Disabilities Act (“A DA”) , 42 U.S.C. § 12101 et seq. , Ag e Discrimination in Employ ment Act (“A DEA” ), 29 U.S.C. § 621 et seq. , Family and Medica l L eave Act of 1993 (“F ML A”) , 29 U.S.C. § 2601 et seq. , and § 510

The Honora

ble Walter H. Rice, Unit ed States District J udg e for the Southern District of * Ohio, sitti ng by

desig nation.No. 11-6360

Laws v. Healthsouth Nor thern Kentucky of the Employ ee Retirement I ncome Security Act (“ERI SA”), 29 U.S.C. § 1140. She also broug ht claim s o f a g e a

n d disability discrimination under the Kentucky Civil Rights Act (“K CRA”), Ky

. Rev. Stat. § 344.040(1)(a ). I. Kathlee n L aws is a licensed prac tical nurse w ho was e mploy ed by Hea lthSout h from 1999 until her termination in October of 2008. Most r ece ntly , L aws repor ted to L y nn Edmondson, who repor ted to Chief Nursing Offic er D ebra Fe y . I n 2003 and ag ain in 2004, L aws was counsele d for poor attendanc e. I n the spring of 2005, her husband, who was cover ed by her health insur an ce, was diag nosed with canc er and beg an radia tion trea tments. Around that same time, L aws develope d an aneur y sm behind her left ey e and underw ent surg ery . She took four months of FML A leave

. When she returne d to work in October of 2005, she had reduc ed vision in her left ey e, and had d ec re ased endura nce. Early in 2006, she missed sever al more day s of work. L aws underw ent a second ey e surg ery in May of 2006, and took additional FML A leave

. I n Marc h 2007, she took more intermittent FML A leave to addre ss additional complications from the aneur

y sm. Some of these absenc es wer e improperly considere d when she was disciplined for excessive absente eism in J une 2007

. Af t er L aws complained, Hea lthSout h ag ree d that she should not have been disciplined for the FML A-a pproved absenc es. Neve rtheless, that disciplinary notice re mained in her

personne l file. Her attend an ce continued to be listed on her annual perf ormanc e evaluations as an are a needing improvement. L aws missed work five times betwee n J anuar y and May 2008 and rec eived 2No. 11-6360

Laws v. Healthsouth Nor thern Kentucky another verba l counseling conce rning her absenc es. I n Fe bruar y 200 8 , L aw s re ceive d a verba l

wa rn i n g for insubordination, afte r she responde d rudely to an inquiry from Br enda Gosney , Hea lthSout h’s CEO, about cer tain chair s that L aws had moved to the nursing station, and then flatly ref used to meet with Gosney afte r work to discuss the inc ident. Early in September 2008, L aws took four day s off for a cer ebra l ang iogr am. On September 16, 2008, the wife of one of her patients expressed conce rn that her husband, for whom s h e had power of attorne y , was too medicate d to participate in therapy . L aws wr ote a note in the pa tient’s char t indicating that his Vicodin should be discontinued per his wife’ s wishes. Be cause L aws wrote this note in the “Phy sician’s Orde r” portion of the char t, rathe r than in the “Prog ress Notes” section, the medication was discontinued without a doctor’s order

. The patient, in tear s, subsequently complained of

pain, prompting Fe y

to ask Edmondson to speak to L aws a bout the incident. L aws admitted the err or and promised that it would not happen ag ain. This char ting err or was eventua lly repor ted to the Kentuc ky

Boa rd of Nur sing. On October 1, 2008, Gosney issued L aws a written war ning for insubordination afte r L aws ref err ed to Gosney as “our fea rless leade r” in the prese nce of a patient and another employ ee. When Gosney met with F ey that day to discuss this i ncident of insubordination, F ey informed Gosney of the Vicodin incident that had occur red two wee ks ear lier. Fe y then decide d to suspend L aw s fo r three day s, pending further investigation of that incident. On that same date, Fe y and Gosney met with Diane Go l dschmidt, Hea lthSout h’s Human Resource s Direc tor, to discuss further options. Goldschmidt wrote a memo to Reg ional Corporate Human Resource s Direc tor J oseph Koehler , rec ommending that L aws be terminated. I n addition to 3No. 11-6360

Laws v. Healthsouth Nor thern Kentucky citing the Vicodin incident, Goldschmidt also noted that “Kathy has had other disciplinary issues in the past including attendanc e and rudene ss to the CEO.” I n acco rd an ce with established policy , Goldschmidt at t ache d all of L aws’ previous disciplinary actions to the memo, including the J une 2007 discipline for excessive absente eism that was based, in part, on FML A-prote cted absenc es. Koehler approve d the rec ommendation to terminate L aws. He maintains that, althoug h he revie wed L aws’ entire disciplinary file, he based his decision so l el y o n the Vicodin incident. L aws was notified of the ter

mination decision on October 3, 2008. She was 55 y ear s old at the time. L aws subsequently filed suit ag ainst Hea lthSout h, alleg ing disability and ag e discrimination under fede ral and state law, and violations of the FML A and ERI SA. On November 1, 2011, the district court iss ued a 70-pag e opini on, g ranting Def endant’ s motion for summary judgme nt in its entirety

. The court held that L aws had not established a prima fac ie case of ag e discrimination, d i s abil ity discrimination, or reta liation or interfe renc e under ERI SA. The court also g rant ed summary judgme nt on L aws’ FML A interfe renc e and reta liation claims. Wit h respe ct to the FML A reta liation claim, the court presumed that L aws had established a prima fac ie case , but found that she had fa iled to produce sufficie nt evidence of pre text . L aws ha s appea led the district cour t’s order

. II. We revie w de novo a district court’s g rant of summary judgme nt. Combs v. Int’l Ins. Co. , 354 F.3d 568, 576 (6th Cir. 2004). Summary judgme nt is appropriate “if the movant shows that there is no g enuine disput e as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56(a)

. The rele vant question is whether there are “di s putes over fac ts that might aff ect the outcome of the suit under the g overning law.” Anderson v. Liberty Lobby, Inc. , 477 4No. 11-6360

Laws v. Healthsouth Nor thern Kentucky U.S. 242, 248 (1986). I n deter mining whether summ ary judgme nt is appropr iate, all rea sonable infere nces are draw n in favor of the non-moving party , and all evidenc e is construed in the light most favor able to that party

. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). III. A. F MLA Re taliation Claim The FML A prohibi ts employ ers from interfe ring with, restra ining, or denying the exercise of rig hts under the Act. 29 U.S.C. § 2615(a) (1). I t also prohibits employ ers from discharg ing or 1 otherwise discriminating ag ainst an employ ee for “opposing any prac tice made unlawful by ” the act. 29 U.S.C. § 2615(a) (2). “Abse nt direc t evidenc e of unlawful conduct, FML A-re taliation claims are evaluated acc ording to the tripartite burden- shifting framework announce d in McD onnell Douglas Corp. v. Gree n , 411 U.S. 792, 93 S.Ct

. 1817, 36 L .Ed.2d 668 (1973).” Bryson v. Regis Corp., 498 F.3d 561, 570 ( 6th Cir. 2007).

1. Direc t Evidence L aws argued that she had direc t evidenc e that Hea lth So u th h ad reta liated ag ainst her for using FML A l eave . She points to the m emora ndum Goldschmidt sent to Koehler , which no t o n l y cited the Vicodin incident, but also ref err ed to past discipline for “attenda nce” issues and rudene ss to the CEO. Attache d to that memorandum wer e copies of all past disciplinary actions taken ag ainst her,

Although L aws included an FML A “interf ere nce” claim in her Complaint, the district court 1 g rante d su m m ar y j u d gm ent i n Hea lthSout h’s favor on that claim, and L aws has not appea led t hat deter mination. 5No. 11-6360

Laws v. Healthsouth Nor thern Kentucky including the discipline imposed in J une of 2007 for e x cessive a bsentee ism, discipli ne which w as based, in pa

rt, on FML A-a

pproved a bsence s. The district court proper ly reje cted L aws’ claim that th is constituted direc t evidenc e of reta liation. Direc t e vidence is e vidence “which, if believe d, requires the conc lusion that unlawful [retaliation] was at least a motivating fac tor in the employ er’ s actions.” Jack lyn v. Schering-P lough He a l t hcare Products Sales Corp. , 176 F.3d 921, 926 (6th Cir. 1999) (empha sis added). No infere nces are require d; the illega l animus is “explicitly expressed.” Amini v. Oberlin Coll. , 440 F.3d 350, 359 (6th Cir. 2006). He re , t h er e is no express statement any wher e in the rec ord of a desire to terminate L aws beca use she had used FML A leave or bec ause she had complaine d that FML A-a pproved absenc es

wer e wrong ly considere d in J une 2007 when she was disciplined for excessive absente eism. A jury may be able to infer f

rom Goldschmidt’s memo that these matter s play ed a pa rt in the termination decision, but no such infe renc e is requir ed.

2. Circum stantial Evid ence Be cause L aws has no direc t evidenc e that she was terminated in connec tion with her use of FML A leave , she is subject to the traditional McD onnell Douglas burden- shifting analy sis. Bryson , 498 F.3d at 570. Un d er that analy sis, a plaintiff must first establish a prima fac ie case of FML A reta liation by showing that she eng ag ed in protec ted ac tivity , she suffe red a n adver se employ

ment action, and there was a causa l connec tion betwee n the two. Id. (citing Skrjanc v. Great Lakes Power Serv. Co. , 272 F.3d 309, 314 (6th Cir. 2001)). I f the p l aintiff satisfies this burden, the defe ndant must offe r evidenc e of a leg itimate, non-re taliatory rea son for the adver se employ ment action. Id. 6No. 11-6360

Laws v. Healthsouth Nor thern Kentucky The burden t hen shi fts back to the pl aintiff to p ro v e, b y a preponde ranc e of the evidence, that the proff ere d rea son is pretextual. Id. The plaintiff may prove prete x t by showing either that: (1) the proff ere d rea son had no basis in fac t; (2) the proff

ere d rea son did not actua lly motivate the adver se employ ment action; or (3) the proff ere d rea son was insufficient to motivate the adver se employ ment action. See Peters v. Lincoln Elec. Co. , 285 F.3d 456, 471-72 (6th Cir. 2002) (citing Manzer v. Diamond Shamrock Chems. Co. , 29 F.3d 1078, 1084 (6th Cir. 1994))

. Reg ardle ss of which path is taken, the plaintiff must produce “suff icient evidenc e from which the jury could rea sonably reje ct [t he defe ndants’] explanation and infer that the defe ndants intentionally discriminated ag ainst him.” Braithwai te v. Timken Co. , 258 F.3d 488, 493 (6th Cir. 2001) (interna l quotations omitted). I n appropr iate case s, a jury may be able to “infe r the ultimate fac t of discrimination from the falsity of the employ er’ s explanation.” Ree ves v. Sanderson Plumbing Prods. , 530 U.S. 133, 147 (2000). Her e, the district court presumed that L aws had established a prima fac ie case o f FML A reta liation, a

nd found that Hea lthSout h had offe red evidenc e of leg itimate, non- reta liatory rea sons for terminating her, i.e. , the Vicodin incident and the two incidents of insubordination. The district court found, howeve r, that L aws had failed to prese nt sufficie nt evidenc e from which a rea sonable jury could find that the proff ere d rea sons did not actu al l y m otivate the termination, i.e. , that the sheer weig ht of t he circumstantial evidenc e made it more li kely than not that the proffere d rea son for he r termination wa s pretextual. Manzer , 29 F.3d at 1084. L aws had argued that the multipl e, conflicting v er s ions of who was involved in the termination decision, along with the shifting rea sons g iven for her termination, supported a finding 7No. 11-6360

Laws v. Healthsouth Nor thern Kentucky of prete x t. She noted numerous discrepa ncies conce rning : whether Go s n ey k n ew of the Vicodin incident befor e October 1, 2008; when Fe y beg an her investiga tion of the Vicodin incident; who was responsible for re co m m ending termination; whether the rec ommendation was based on L aws’ “fe arle ss leade r” comment, the Vicodin i n cident, the chair incident, attendanc e issues, or a combination there of; and whe ther Koe hler c onsidered attendance issues in making his dec ision. The district court discounted these discrepa ncies, concluding that the signific ant fac ts wer e not in dispute, and that the stated justification for the termination had not shifted over the course of the litigation. Koehler , the ultimate decisionmak er , h as consistently maintained that the Vicodin incident was the sole basis for his de cision. The court found that L aws’ “g ut fee ling” that this was prete x tual was not enoug h to cre ate a g enuine dispute of f

act. L aws challeng es this finding on ap p eal. She maintains that she has prese nted sufficie nt evidenc e from which a rea sonable jury could find in her favor on this claim. Construing the evidenc e in he r favor and g iving her the benef it of all rea sonable infere nces, her FML A reta liation claim should have sur

vived summary

judgme nt. Ba sed on the evidenc e prese nted, a rea sonable jury could reje ct the rea son g iven by Koehler for L aws’ termination. L aws argues that if her char ting err or in connec tion with the Vicodin incident posed such a serious risk to patient safe ty , Fe y would not have waited two wee ks to discipline her. When the incident happene d, Fe y mere ly asked Edmondson to talk to L aws about the notation err or. Fe y took no disciplinary action at all. Not until Gosney approa ched Fe y about the “fe arle ss leade r” comment did Fe y decide to suspend L aws, pending an investigation of the Vicodin incident. Under

8No. 11-6360

Laws v. Healthsouth Nor thern Kentucky these circ umstances, a jury could fi n d t h at the Vicodin incident did not actua lly motivate her termination. A re asonable jury

could also find that L aws was terminated, at least in pa rt, beca use of her use of F ML A leave . I n g ranting summary judgme nt, the district court re lied heavily on Koehler ’s statement that his de cision was ba sed solely on the Vicodin incident. Koe hler admitted, howeve r, that, befor e making his decision, he re viewed L aws’ e ntire disciplinary history

. This included the J une 2007 discipline for excessive absente eism. Although Hea lthSout h ag ree d that L aws had been improperly disciplined for FML A-a pproved absenc es, the disciplinary notice never theless rema ined in her personnel file, w hich was se nt to Koehler. When a sked, in an interr og atory , to describe the

rea sons for terminating L aws, HealthSouth responded t h at the “conclusions and events leading to Plaintiff’s termination are well-doc umented in her personne l file.” This leave s open the possibili ty that attendanc e wa s a fa ctor. Moreove r, Fe y testified that she, Gosney , and Goldschmidt discussed L aws’ attendanc e problems befor e they made their rec ommendation to terminate her. The rec ommendation ref ers not only to the Vicodin incident, but al s o to the two instances of insubordination and past attendanc e issues. Finally , despite Koehler ’s statem en t that his decision was based solely on the Vicodin incident, Hea lthSout h, in its motion fo r s u m m ar y judgme nt, argued that the two instances of insubordination also play ed a part in the termination decision. Hea lthSout h, howeve r, did not arg ue that past attendanc e issues fac tored into the decisi o n , even though they wer e also included in Goldschmidt’s memo.

9No. 11-6360

Laws v. Healthsouth Nor thern Kentucky These shifting explanations and justifications g iven for L aws’ termination are probative, and

are sufficie nt to cre ate a g enuine dispute of fac t as to whether the proff ere d rea son was prete x tual. See DeLoach v. Island Dental Co., Inc. , No. 1:04-cv-207, 2005 WL 3533145, at *7 (S.D. Ohio Dec

. 22, 2005); see also Dennis v. Columbia Colleton Med. Ctr., Inc. , 290 F.3d 639, 647 (4th Cir. 2002) ; EEOC v. Sears Roebuc k & Co. , 2 43 F.3d 846, 852-53 (4th Cir. 2001). Under the circ umstances prese nted here , a rea sonable jury could find that, despite Koehler ’s statement to the contra ry , L aws’ use of F ML A leave play ed a f actor in the t ermination decision. The dist rict court there fore err ed 2 in gr anting summary

judgme nt in favor of

Hea lthSout h on L aws’ F ML A re taliation claim. B. Discrim ination 1. Age Disc rim ination L a w s b r o u g h t c la ims of ag e discrimination under the Ag e Discrimination in E mp lo y me n t A c t and the Kentucky Civil Rights Act. I n order to establish a prima fac ie case under either statute, L aws must show that: (1) she w as over 40 y ear s old; ( 2) she suffe red an adver se employ ment action; (3) she was qualified for the position she held; and (4) she was either repla ced by a person outside the protec ted class or trea ted differ ent l y t h an simil arly -situated individuals. Policastro v. Northw est Airlines, Inc. , 297 F.3d 535, 538- 39 (6th Cir. 2002).

L aws also argues that the timing of the termination decision supports a finding of prete x t. 2 She was terminated just a few wee ks afte r taking four day s off for her cer ebra l ang iogr am. I t appea rs to be undis puted, however, that L aws took acc umulated paid time off and sic k l eave to cover that absenc e, rathe r than submitt ing a reque st for FML A leave

. Be cause this was not an FML A-a pproved absenc e, it appea

rs to be lar g ely

irrele vant to L aws’ F ML A re taliation claim.

10No. 11-6360

Laws v. Healthsouth Nor thern Kentucky The district court held that L aws had not established a prima fac ie case of ag e discrimination, beca use she failed to prese nt sufficie nt evidenc e that she was either “re place d” by a y oung er employ ee or was disciplined more har s h l y than simil arly -situated y oung er employ ees. The court reje cted L aws’ claim that three y oung er employ ees, who had also made char ting err ors but wer e not terminated, w ere “similarly situated” to L aws. Citi ng Mitchell v. Toledo H ospital , 964 F.2d 577, 582-83 (6th Cir. 1992), the district c ourt stated that there are stringe nt require ments for proving that other employ ees are “similarly -situated in all respe cts.” I n Mitchell , we held that those other employ ees “must have dealt wi t h t h e s ame supervisor, have been subject to the same standards and have eng ag ed in the same conduct without such differ entiating or mitigating circ umstances that would distinguish thei r co n duct or the employ er’ s trea tment of them for it.” Id. at 583. The district court found that, even assuming that L aws a nd the three y oung er employ ees had the same supervisor, they had not e ng ag ed in the same conduct. Two of the y oung er employ ees had failed to proper ly document vital signs of patients. The third had made a note that a patient had rec eived medication when, in fac t, the medication was still in the draw er. On appea l, L aws argues that the district court applied an overly rig id standard of compar ison. I n Ercegov ich v. Goodye ar Tire & Rubber Co. , 154 F.3d 344 (6th Cir. 1998), we explained that the plai n t i ff d o es not alway s need to demonstrate an “exact corr elation” in order to be “similarly situated.” Rather, “the plaintiff and the employ ee with whom the plaintiff seeks to compar e himself

or herse lf must be simil ar in ‘all of the relev ant aspec ts.’” Id. at 352 (quoting Pierce v. Commonwealth Life Ins. Co. , 40 F.3d 796, 802 (6th Cir. 1994)). L aws maintains th at , u n d er this 11No. 11-6360

Laws v. Healthsouth Nor thern Kentucky

more lenient standard, a rea sonable jury could find that she and the three y oung er employ ees wer e simil arly situated in all releva

nt aspec ts. We disag ree . I n Ercegov ich , we noted that the fac tors set forth in Mitchell “g ener ally are all rele vant considerations in case s alleg ing differ ential disciplinary action,” but may not be rele vant “in

case s arising under differ ent circ umstances.” This is why an individualiz ed inquiry is require d. Id. L aws’ situation is akin to Mitchell in t h at b o t h p l aintiffs alleg ed that they wer e disciplined more harshly than fe llow employ ees f

or the same or si milar conduct. W e ther efor e find that the district court did not err i n i t s analy sis. I t proper ly conclude d that the three y oung er employ ees wer e not “similarly situated” to L aws. As the court noted, L aws’ char ting err or was the only one that resulted in pain medication being discontinued without a doctor’s order , and the only one that caus ed a patient to suffe r unnec essar y pain. Acc ording to Fey , this was the most serious char ting e rror that she had ever seen, and it was the only incident s h e ev er h ad to repor t to the Kentucky Boa

rd of Nursing

. I n these respe cts, L aws’ c harting err or is clea rly distinguishable from the char ting err ors made by the y oung er employ ees. We there fore aff irm the di strict court’s finding that L aws failed to establish a prima fa cie c ase of ag e discrimination. 2. Disabil ity Discrim ination L aws also broug ht claims of disability discrimination under the Americ ans with Disabilities Act and the Kentucky Civil Rights Act. To establish a prima fac ie case of disability discrimination, L aw s m u s t show that: (1) she is disabled; (2) she is otherwise qualified for the position, with o r without rea sonable acc ommodation; (3) she suffe red an adver se emplo y me n t a c ti o n ; ( 4 ) H e a lt

hSouth

12No. 11-6360

Laws v. Healthsouth Nor thern Kentucky knew or had rea son to know of her disability ; and (5) she was repla ced. See Hedrick v. W

. Reserv e Care Sys. , 355 F.3d 444, 453 ( 6th Cir. 2004). Only the first element is in dispute. The district court found that L aws had failed to show that either her poor sight in he r left ey e or her reduc ed endura nce levels rende red her “disabled” as that t er m wa s d ef

i n ed prior to J anuar

y 1, 2009, when the amendments to the ADA beca me eff ective. “Disability ” is define d as “(A ) a phy sical or mental impairment that substantially limit s one or more of the major life activities of such ind i v i d u al ; (B ) a rec ord of such an impairment; or (C) being reg arde d as having

such an impairme nt.” 42 U.S.C. § 12102(2) (2008)

.

“ Su b s ta n tia lly limit s” means “[s] ignif icantly restric ted as to th e c o n d it io n , ma nn e r o r d u r a ti o n under which an individual can perf orm a particula

r major life activity as compar ed to the condition,

manner , or duration under which the aver ag e person in the g ener al population can perf orm that same major life activity .” 29 C.F.R. § 1630.2(j)(1) (ii) (2008). Fa ctors to be considere d include the nature ,

sever ity , duration, and perma nence of the imp ai rm en t

. Id

. at § 1630.2 (j)(2) (2008). Fe dera l regulations provide that, with respe ct to the major life activity of “wor king,” the term “substantially limit s means signific antly restric ted in the ability to pe rfor m e ither a class of jobs or a broad rang e of jobs in various classes as compar ed to the aver ag e person having compar able training , skills, and abilities.” Id. at § 1630.2(j)( 3)(i) ( 2008). Although L aws did not specific ally identify which “major life activities” wer e impacted by h er alleg ed disability , the district court assumed that L aws maintained that she was substantiall y limit ed in the major life activities of “see ing” and “wor king.” See id. at § 1630.2(i) (2008). Citi ng Bryson v. Regis C o rp. , 498 F.3d 561, 576 (6th Cir. 2007), the district court found that L aws had 13No. 11-6360

Laws v. Healthsouth Nor thern Kentucky failed to show that her ey esig ht or endura nce level barr ed her “fr om working all jobs within the [nursin g] fi el d ” or preve nted her “fr om holding a larg e number of jobs in other cate g ories of

em p l oy ment.” The court conclude d that she had failed to cre ate a g enuine issue of mater i al fa ct

conce rning whether

she wa s “disabled” or whe ther He althSouth reg arde d her a s disabled. On appea l, L aws argues that the district court err ed in its rea soning. We ag ree . The question of whether L aws was “sig nificantly restr i ct ed i n t he ability to perf orm either a class of jobs or a broad rang e of jobs in various classes” is rele vant only to the major life activity of “wor king.” See 29 C.F.R. § 1630.2(j)(3) (i) (2008) . The district c ourt’s finding , there fore , does nothing to addr ess L aws’ alternate claim that she was also substantially limit ed in the major life a ctivity of “see ing.” Wit h respe ct to t h e major life activity of “see ing,” L aws need only prove that she is signific antly re s t ri ct ed as to the condition, manner or duration under which she can perf orm that part i cu l ar activity as compar ed to the aver ag e person in the g ener al population. Id. at §1630.2(j)(1) (ii) (2008). I t is undisputed that, as a result of the aneur y sm, L aws has perma

nently lost normal vision in her left ey e. Her left ey elid droops and she can no longe r see any details out of that ey e. She ca

n see only

dark, f og g y shapes. L aws Af

f. ¶ 8. I n Albertson’s, Inc. v. Kirkingburg , 527 U.S. 555, 567 (1999), the Supreme Court held that “people with mono cu l ar v i s ion ‘ordinar ily ’ will meet the Act’s definition of disability ,” but must prov e that “the extent of the limit ation in terms of their own experience , as in loss of depth perc eption and visual field, is substantial.” Tec hnically , L aws does not have monocular vision. She

can still partially see out of her left ey e. Neve rtheless, in our view, she has prese nted sufficie nt

14No. 11-6360

Laws v. Healthsouth Nor thern Kentucky evidenc e to cre ate a g enuine issue of materia l fac t conce rning whether she is signific antly restric ted as to the condition or manne r in which she c an per form the major life ac tivity

of “se eing .” Although the district court err ed in finding to the contra ry , we never

theless aff

irm the court’s decision to g rant summary judgme nt in favor of Hea lthSout h on this claim. See Angel v. Kentucky , 314 F.3d 262, 264 (6th Cir. 2002) (“[W] e are fre e to aff irm the judgme nt on any basis supported by the rec ord.”)

. Since L aws established a prima fac ie case of disabi lity discrimination, the burden shifts to Hea lthSout h to articula te a leg itimate, non-discriminatory rea son fo r L aws’ termination. As noted ear lier, Hea lthSout h has offe red evidenc e that L aws was terminated beca use of the Vicodin incident. L aws must then p ro v e, b y a preponde ranc e of the evidenc e, that the proff ere d rea son is prete x tual. Although we previously found that L aws submitt ed sufficie nt evidenc e of prete x t to survive summary judgme nt on her FML A reta liation claim, she has failed to satisfy her burden in connec tion with h er disability discrimination claim. The FML A reta liation claim was supported by some evidenc e that L aws’ past attendanc e problems, including discipline encompa ssing her use of FML Aapprove d leave , may h av e b ee n considere d in the decision to terminate her. In contra st, no compar able evidenc e exis ts to support a fi nding that L aws was terminated beca use she is signific antly restric ted in her ability to perf orm the major life activity of seeing

. There is no evidenc e that Goldschmidt, Gosney , and F ey discussed L aws’ visua l impairment befor e they rec ommended her termination. Moreove r, Goldschmidt’s memo to Koehler say s nothing of that impairment, and there is no evidenc e that Koehler knew that L aws was visually impaired. Under these circ umstances,

no rea sonable jury could find that the sheer weig ht of circ umstantial evidenc e makes it more likely 15No. 11-6360

Laws v. Healthsouth Nor thern Kentucky than not that Hea lthSout h’s proff ere d rea son for L aws’ termination was a cover up for disability discrimination. There fore , althoug h we conclude that the di strict court erre d in finding that L aws failed t o establish a prima fac ie case of dis ab i l ity discrimination, we never theless conclude that summary judgme nt was appropriate ly g rante d beca use L aws has failed to cre ate a g enuine i s s ue of materia l fac t conce rning prete x t. C. ERISA As the district court noted, ERI SA prohibits employ ers from reta liating ag ainst participa nts in an employ ee benef

it plan for exerc ising rig hts to which they are entitled under the plan. I t also prohibits employ ers from discharg ing or discriminating ag ainst plan participa nts for the purpose of interfe ring with the attainment of any rig ht to which the participa nts may become entitled under the plan. 29 U.S.C. § 1140. The district court noted that althoug h L aws’ C o m p laint alleg ed both “re taliation” and “interf ere nce” claims, L aws had briefe d only the interfe renc e claim. The district court never theless found that L aws had failed to establish a prima fac ie case under either theory

. L aws has not appea led the cour t’s decision with respe ct to the ERI SA retaliation cla im. As for the interfe renc e claim, the district court noted that, in order to establish a prima fac ie

case , L aws must show that: (1) she lost the opportunity to acc rue new benef its; and (2) Hea lthSout h had the specific intent of avoiding ERI SA liability when it ter minated her. Majewski v. Automatic Data Processing, Inc. , 274 F.3d 110 6 , 1 1 1 3 (6 t h Cir. 2001). I n other words, there must be some evidenc e of a causa l connec tion. Smith v. Ameritec h , 129 F.3d 857, 865 (6th Cir. 1997). The court 16No. 11-6360

Laws v. Healthsouth Nor thern Kentucky found that L aws prese nted no evidenc e that Hea lthSout h had terminated her with the specific intent of avoiding the future pay ment of hea lth insurance pr emiums for her or her husband. On appea l, L aws argues that the distric t court err ed in holding that she had failed to demonstrate the causa l connec tion r equire d to e stablish a prima fac ie case . She maintains that she was terminated s hortly afte r i ncurr ing ext raor dinary medical ex penses, and argues that it could be inferr ed that the dec ision-makers, who w orked in the health car e field, would have known that the medical bills incurre d by

her a nd her husba

nd wer e substantial. The dist rict cour

t did not err in concluding that L aws failed t o establish a prima fac ie case of ERI SA interfe renc e. Even if the decision-make rs could have s p eculated that the medical bills

wer e substantial, there is simpl y no evidenc e to support a f inding that He althSouth terminated her with the s pecif

ic i ntent of avoiding l iability for the future medical bil ls of her or her husband. As the district court noted, two or three y ear s had passed betwee n the time the bulk of the medical bills

wer e incurre d and the date L aws was terminated; temporal proxi mity to support a causa l connec tion is there fore lacking

. More importantly , beca use it is undisputed that Hea lthSout h paid the same flat monthly premium rate for he alth insurance for e ach of its employ ees, it had no f inancial incentive to terminate her. Ba sed on the evidenc e prese nted, no rea sonable jury could find that Hea lthSout h terminated her with the specific intent of avoiding future liability for the health car e costs of L aws

or her husband. We there fore af fi rm t h e d i strict court’s decision with respe ct to the ERI SA interfe renc e cla im.

17No. 11-6360

Laws v. Healthsouth Nor thern Kentucky IV. For the rea sons set forth above, we AF F IRM the decision of the d i s t ri ct court g ranting summary judgme nt in favor of HealthSouth on L aws’ claims of age and dis ability discrimination, ERI SA violations, and FML A interfe renc e. The majority also AF F IRMS the district court’s decision gra n ting summ ary judgme nt in favor of HealthSouth on L aws’ FML A retaliation claim. I , howeve r, believe that g enuine disputes of materia l fac t prec lude summary judgme nt on that claim. Iwould there fore reve rse a nd rema nd for f urther pr ocee dings on the FML A re taliation claim.

18No. 11-6360

Laws v. Healthsouth Nor thern Kentucky S UTTON, J ., concur

ring , joined by CL AY, J

. We join all of J udg e R ice’ s opinion exc ep t for Part I I I .A.2. We aff

irm the di strict court’s denial of all of L aws’ claims, incl u d i ng her FML A reta liation claim.

L aws has not prese nted any direc t evidenc e to support her FML A reta liation claim, so the familiar McD onnell Dougla s fr am ew o rk applies. Under this standard, L aws bear s the burden of establishing a prima fac ie case of discrimination. Cline v. BW XT Y -12, LLC , 521 F.3d 507, 509 (6th Cir. 2008). I f she succe eds in doing so, the burden shifts to th e h o s p i t al t o produce a leg itimate, nondiscriminatory explanation for its decision. Id. At that point, L aws must introduce evidenc e that would allow a r easona

ble jury to conclude that the hospital’s expl anation is prete x tual. Id.

Even if we assume that L aws has made out a prima fac ie case , she has no cog nizable claim of p re t ex t

. T h e hospital has put forwa rd two solid justifications for firing L aws. First, L aws

re ce i v ed two war

nings for insubordination in 2008, based on inappropria te interac tions with h er superiors. Second, and most eg reg iously , L aws wrote on a patient’s char t, in the Phy sician’s Orde rs section, that the patient’s Vicodin should be discontinued. L aws lacke d any authorization to make such a nota tion and cause d the patient to suffe r intense pa in as a re sult of her misconduct. Firing L aws for the latter offe nse alone is eminently rea sonable. Patient safe ty is a hospital’s para mount conce rn, and L aws’ actions rec klessly cause d sever e harm to one of her patients. I ndeed, L aws’ behavior was serious enoug h t o wa rr ant a repor t to the Kentucky Boa

rd of Nursing , a conseque nce that undersc ores the g ravity of what she did. And this intentional misconduct was on

19No. 11-6360

Laws v. Healthsouth Nor thern Kentucky top of L aws’ additional repe ated and public insubordinate behavior toward her supervisor. The hospital had ample re ason to fire her.

L aws offe rs sever al piece s of evidenc e that she argues might be sufficie nt for a jury to infer that she was fired beca

use of her FML A absenc es. But all of the evidenc e L aws claims should g et her to a jury is highly specula tive, and none of it helps overc ome the seriousness of her infrac tion. Even the most g ener ous of juries could not rea sonably conclude that the hospital’s justification for firing L aws was a prete x t for discrimination. The potential implications of L aws’ actions for patient safe ty are simply too g reat. A hos p i tal, in the normal course of business, must be able to fire an insubordinate nurse afte r she threa tens patients ’ s af ety by taking medical decisions into her own hands.

For

these re asons, we a ffirm the district c ourt in full.

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