NOT RECOMMENDED FOR PUBLICATION File Name: 17a0542n.06
No. 17-3327

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT STEVE FLETCHER, Plaintiff-Appellant,

v. U.S. RENAL CARE, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: KEITH, ROGERS, and McKEAGUE, Circuit Judges. ROGERS, Circuit Judge. Stev e Fletcher claims that while working as a registered nurse at U.S. Renal Care, he was forced to endur e a campaign of discriminatory scrutiny and mistreatment by an African-American manager, because he is white. In this suit, Fletcher alleges that a racially discriminatory and retaliatory campaign led to his cons tructive discharge, in violation of both federal and Ohio law. The dist rict court, however, properly granted summary judgment against him. There is not sufficient evid ence to raise a genuine i ssue of material fact that Fletcher was in fact constructively discharg ed, or that his complaints to management were the cause of his discipline. In October 2013, after working as a “float” nurse at several of U.S. Renal Care’s Cincinnati dialysis clinics, Fletcher accepted a position as a registered nurse in the company’s Norwood, Ohio clinic. He soon transferred agai n to the Kenwood clinic, and appears to haveCase No. 17-3327, Fletcher v. U.S. Renal Care

2 worked there without incident until May 2014, when his first supe rvisor, Anita Johnson, who is African-American, was replaced by Devon Nelson, who is also Af rican-American. It was then that Fletcher claims the problems central to this suit began. Although Fletcher points to a number of incide nts, the first sign of trouble appears to have come only a month after Nelson arrived at Kenwood, when Fletcher cl aims that Nelson told him that he would no longer be allowed to wear black jeans to work, as he had for several months, but would instead ha ve to wear scrubs. Fletcher raised that policy change with Nelson’s supervisor, Sabon Shelton, who told him he coul d continue wearing his jeans until the matter could be addressed at an alrea dy-scheduled nurses’ meeting. Fl etcher also brought his complaint to the attention of Andrea Foley, a human-resources manager, wri ting to her that he believed Nelson had “chosen to single out and harass only th e Caucasian person[nel],” including Fletcher. In response, Foley, who is also white, explained to Fletcher that “[i]t would be unfair to single [him] out,” and that if his clinic was determ ined to be “scrubs only, that [would] go for everyone.” Two days later, Fletcher again wrote Foley, te lling her that he was “not the only one in the clinic to see the racism demonstrated by” Nelson, and that another employee, Benjamin Ullman, had left U.S. Renal Care, because he was unwilling to put up with Nelson’s “racist attitude one more day.” Ullman claims to ha ve complained to human resources about his own concerns of “racism,” but received no response. Around the same time, Fletcher claims that he had two more encounters with Nelson that, he says, suggested Nelson’s racial animus. The first incident came after Nelson accused Fletcher of putting a doctor’s order on the wrong patient’s chart—a potentially dangerous mistake. Nelson claims to have discussed the charting issu e with Fletcher soon after the alleged mistakeCase No. 17-3327, Fletcher v. U.S. Renal Care

3 was discovered. According to Fletcher, however, he made no such mistake, which, he alleges, Johnson confirmed for him. The second incident came not long after the charting concern, when Fletcher cracked a tooth, exposing a nerve and leaving him in considerable pain. Instead of “call[ing] off,” Fletcher reported to work, and asked Johnson if she woul d cover for him for an hour so he could see a dentist. Johnson agreed, and Fletcher schedu led his appointment. Once Nelson arrived, however, she told Fletcher that she could not authorize the tim e off, but that he should “do what [he] need[ed] to do.” Fletcher left anyway, a nd the next day he again wrote Foley, telling her that Nelson “ha[d] become more hostile,” and that “[h]er attitude and singling out ha[d] become more frequent and more aggressive.” Around that time, Nelson also brought Fletche r’s alleged charting erro rs to the attention of Scott Sasserson, U.S. Renal Care’s chief ope rating officer, detailing Fletcher’s apparent failure in one instance to name the doctor who is sued a medical order as well as his placement of the patient note on the wrong chart. Sasserson passed those concerns on to Foley, who began investigating Fletcher’s performance. During the investigat ion Foley asked Joanne Zimmerman, the company’s vice president of clinical serv ices, to review Fletcher’s charting notes. Zimmerman was reportedly “shocked at how l acking [Fletcher’s] writ ten orders” were, and suggested that Fletcher be put “on final wa rning,” which, according to Foley, was standard practice whenever a “patient safety issue requir[e d] discipline.” Like Foley, both Sasserson and Zimmerman are white. Foley, along with Shelton and Sasserson, then d ecided to discipline Fletcher. Although Nelson took no part in the decision, she presen ted Fletcher with a written counseling form, listing the various charting and other errors that had raised safety concerns as well as other actsCase No. 17-3327, Fletcher v. U.S. Renal Care

4 of insubordination, including Fletcher’s continuing to wear jeans and his abruptly leaving work to tend to his tooth. In the presence of Sasse rson and Shelton, Fletcher ultimately signed the form, over Fletcher’s “strong[] disagree[ment],” and without th e opportunity to protest the infractions. A few days later Fl etcher resigned from U.S. Renal Care, stating in his resignation notice that “[t]he work place has become hostile and intolerable due to racism, retaliation, and other questionable behavior by management.” He was soon replaced by another nurse, Samantha Waggoner, who is also white. Fletcher then filed this suit, alleging that U.S. Renal Care constructively discharged him on account of his race and retaliated agains t him for complaining about that allegedly discriminatory treatment, in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981, as well as Ohio’s counterpart civil-rights statute. U.S. Renal Care moved for summary judgment, and the district court grante d it on both of Fletcher’s claims. The court first concluded that Fletcher, w ho had offered no direct evidence of racial animus, had failed to make out a prima facie case of reverse discrimination. The district court noted that the first prong of the McDonnell-Douglas framework—whether U.S. Renal Care was the “unusual employer who discriminates against the majority,” Nelson v. Ball Corp. , 656 F. App’x 131, 134–35 (6th Cir. 2016)—presented a “close question.” But the court ultimately left that question unresolved, concluding that Fletche r’s case would fail rega rdless of that answer, under the third and fourth prongs. As to the third prong, the court determined that Fletcher had failed to show that he had suffered an adverse employment action, through his alleged constructive disc harge. None of the circumstances Fletcher cited—his disciplinary wa rning, his alleged concern that U.S. Renal Care would file a false report against him with the State Board of Nursing or that he would be fired, orCase No. 17-3327, Fletcher v. U.S. Renal Care

5 his complaints about Nelson’s supervision—was enough, the court held, to indicate that U.S. Renal Care had deliberately se t out to make his working conditions intolerable. Nor had Fletcher shown that similarly situ ated employees were treated differently because of their race, the court concluded, or that he was replaced by an employee of another race, as required by McDonnell-Douglas ’s fourth prong. In fact, Fl etcher’s replacement was a white female nurse, and the only allegedly diffe rential treatment he pointed to—that AfricanAmerican employees were allowed to take longer lunches, that other nurses were allowed to wear sweatpants rather than jeans, and that there were managers who made charting errors without being similarly disciplin ed—all involved employees who we re not similarly situated. Thus, under any of these prongs, th e court concluded that Fletcher ’s discrimination claim could not succeed. Fletcher’s retaliation claim also could not survive summary judgment, the district court held, even though the court found that he had satisfied the fi rst three elements of his prima facie case—that he had engaged in a protected activity known to U.S. Renal Care, and had suffered a materially adverse action as a result. The problem, the court held, was with causation. The primary evidence of causation that Fletcher of fered was temporal: only a few weeks separated Fletcher’s complaints and his disciplinary wa rning. But that was inadequate, the court concluded, not only because Nelson had discussed disciplining Fl etcher before he had brought his concerns to Foley’s atten tion, but also because other pe rsonnel, relying on company policy, were responsible for the decision to issue Fletcher the warning, pr oviding an “intervening legitimate reason” for his discipline, Green v. Central Ohio Transit Auth. , 647 F. App’x 555, 561 (6th Cir. 2016). Although Fletcher also pointed to comments by Foley allegedly suggesting that she thought he complained excessively, the c ourt deemed those comments insufficient toCase No. 17-3327, Fletcher v. U.S. Renal Care

6 establish causation as well. According to th e court, the context fo r those comments instead revealed that Foley was only trying to ensure that Fletcher felt that his concerns were understood and were being addressed. The district court accordingly granted summary judgment for U.S. Renal Care, and Fletcher now appeals. Fletcher first argues that que stions of material fact re main on his claim of reverse discrimination, warranting reversal. Because Fletch er has come forward with no direct evidence of discrimination, he must make out a prima facie case of discrimination under McDonnell Douglas , including showing that he suffered a “mat erially adverse change in the terms or conditions” of his employment. Laster v. City of Kalamazoo , 746 F.3d 714, 727 (6th Cir. 2014). There is no genuine issue of ma terial fact, however, that Fl etcher has done so. Thus, his discrimination claim, reviewed de novo, see id. , fails at the first stage. 1

Fletcher contends that U.S. Renal Care did in fact subject him to a materially adverse employment action on account of hi s race, through constructive disc harge. But this claim is not sufficiently borne out by the record to withstan d summary judgment. In order to establish a constructive discharge, Fletch er has to make two showings : (1) that U.S. Renal Care “deliberately created intolerable working condi tions, as perceived by a reasonable person,” and (2) that the company did so to get him to quit. Saroli v. Automation & Modular Components,
Inc. , 405 F.3d 446, 451 (6th Cir. 2005) (quoting Logan v. Denny’s, Inc. , 259 F.3d 558, 568-69 (6th Cir. 2001)). Here, Fletcher points to a number of actions that, he alleges, were deliberately taken to make his working conditions intolerable. Those actions include: the allegedly false

1 Because the Ohio courts analyze disc rimination claims brought und er Ohio law according to the same standards as claims under federal law, see Birch v. Cuyahoga County Probate Court , 392 F.3d 151, 163 (6th Cir. 2004) (citing Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n , 421 N.E.2d 128, 131-32 (Ohio 1981)), our analysis of Fletche r’s federal claims disposes of his state law claims as well.Case No. 17-3327, Fletcher v. U.S. Renal Care

7 accusations Nelson made about his charting, her decl ining to authorize his leaving early for the dentist and telling him to wear scrubs pursuant to company policy, and the final warning Fletcher received for those infractions, among others. But none of this adds up to a showing under either prong of a constructive- discharge claim. First, even viewing this record in the light most favorable to Fletcher, as we must, see Laster , 746 F.3d at 726, none of thes e actions appears to rise to the sort of “badgering, harassment, or humiliation” that we have deem ed actionable as constructive discharge, id. at 728. The criticisms Fletcher receiv ed for his alleged charting erro rs, as well as the way Nelson handled the scrubs-only policy and his request for time off to get his tooth pulled, all concern the manner in which the company supervised him a nd assigned him duties. Generally, however, actions like these are “insufficient to establis h a constructive discharg e as a matter of law,” Smith v. Henderson , 376 F.3d 529, 534 (6th Cir. 2004), and Fletcher cites no case suggesting that they would be here. 2 Fletcher does point to the allegedly “racially hostile environment” at Kenwood as another basis for his constructive-discharge theory. Bu t none of the evidence he cites for that claim suggests that he or any other white employee was ever badgered, harassed, or humiliated. Instead, Fletcher, along with Ullman, appears to allege only that some African-American employees were occasionally treated more leniently by their African-American supervisors. But that is a far cry from the sort of abusive, ra cially charged comments that we have found would

2 Fletcher does cite Jackson v. Quanex Corp. , 191 F.3d 647 (6th Cir. 1999), but his reliance on that case is misplaced. In Jackson , we held that where a plaintiff comes forw ard with specific evidence of racism, like coworkers’ frequent and obviously derogatory use of racial hate words, see id. at 653, that evidence would matter in determining whether the work environment was objectively hostile, just as evidence that the plaintiff learned of those incidents would also matter in determining whether th e plaintiff “subjectively perceived” that hostility. Id. at 661 (emphases added). But here, as explained above, Fl etcher has pointed to no such derogatory or abusive comments directed against him or anybody else.Case No. 17-3327, Fletcher v. U.S. Renal Care

8 create a genuine question of fact as to whether there was an intolerable atmosphere in the workplace, such as in Logan , where an African-American employee was forced to endure her colleagues’ taunts about “your people,” being told at one point that “[w]e don’t serve ‘grits’ here.” 259 F.3d at 572. Moreover, even if this sort of differential treatment and heightened scrutiny might create a question of fact under the fi rst prong of a construc tive-discharge theory, it still would be inadequate under the second. Such scrutiny or treatment does not necessarily mean that there was an intention to force an employee out. See Laster , 746 F.3d at 728. Nor has Fletcher suggested that anybody ever told him that he wa s going to be fired, or that he should quit. Instead, relying on Lee v. Cleveland Clinic Foundation , 676 F. App’x 488 (6th Cir. 2017), Fletcher argues that reasonable jurors might find that intent in the way Sasserson chose to deliver the final warning to him, without letting Fletcher argue his side. Fletcher’s reliance on Lee , however, is misplaced. There the plaintiff had come forward with concrete evidence of harassment—other employ ees had directed “derogatory racial slurs” at her, and repeatedly asked her when she would re tire—that her employer a pparently declined to investigate. Lee , 676 F. App’x at 495. Fletcher has poi nted to no such evidence here—no racial slurs, no questions implying he should leave. Moreover, the record shows that Fletcher had serious problems with his charting—indeed, “shocking” ones, according to Zimmerman, another white manager—and Fletcher does not appear to dispute that under those circumstances it was company practice to issue a final warning. By th e time Fletcher was asked to sign the counseling form, there was nothing he could have said that would have changed that practice, or that would have undone Zimmerman’s recommendation to disciplin e him. It was therefore only reasonableCase No. 17-3327, Fletcher v. U.S. Renal Care

9 for Sasserson to insist at that meeting that he and Fletcher would have to “agree to disagree” about the final warning. That is hardly eviden ce that Sasserson was trying to force him out. Fletcher tries to resist th is conclusion by repeating his belief that working under Nelson was “untenable” and that she and others really did want him out, and that a jury reviewing the same record might agree with him. But that is speculation, not evidence, and on summary judgment, Fletcher, even as the non-moving part y, “must be able to show sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation.” Arendale v. City of Memphis , 519 F.3d 587, 601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc. , 355 F.3d 515, 533 (6th Cir. 2004)). As explained, su ch evidence is lacking here. Fletcher has consequently failed to show that he was constructiv ely discharged or, as a result, that he was the subject of actionable race discrimination. Fletcher’s next claim on appeal—that U.S. Renal Care retaliate d against him for his complaints about Nelson’s alleged racism—fares no better. Fletcher cont ends that the district court correctly found that he could meet the first three elements of a prima facie case for retaliation—that his complaints about Nelson were (1) protected activity (2) that was known to the company and (3) led to a materially a dverse action, namely, hi s final warning. See Yazdian v. ConMed Endoscopic Techs., Inc. , 793 F.3d 634, 649 (6th Cir. 2015). Fletcher argues, however, that the district court was mistaken in concluding that he had failed to establish the fourth element, showing “a causal connection be tween the protected activity and the adverse employment action.” Id. (citation omitted). Here we need not decide whether the district court was right as to the first three elements, because Fletcher’s evidence of ca usation is too tenuous to support a prima facie case of retaliation. This claim, reviewed de novo, see Laster , 746 F.3d at 726, accordingly fails as well.Case No. 17-3327, Fletcher v. U.S. Renal Care

10 In arguing his case for causation Fletcher relies primarily on a theory of temporal proximity, pointing to the few weeks that separated his comp laints about Nelson and the disciplinary warning that ultimately led him to quit. But even if this close succession of events were enough to support a causal inference, as such proximity has in other cases, see, e.g. , Mickey v. Zeidler Tool & Die Co. , 516 F.3d 516, 525-26 (6th Cir. 2008), that inference is rebutted here by the intervening concerns a bout Fletcher’s charting. In Wasek v. Arrow Energy Services , 682 F.3d 463 (6th Cir. 2012), we explained that even though close temporal proximity can support the causal element of a prima facie case of retaliation, an “int ervening legitimate reason to discipline” an employee can neve rtheless defeat that inference. Id. at 472. Here, there was just such an intervening reason: Nelson caught what she believed was another potentially dangerous charting error by Fletcher , and Fletcher does not appear to dispute that it was Nelson’s report about that error that le d Sasserson and other managers to independently review his performance, culminating in the final warning th at company policy required. Like the plaintiff’s walking off the job in Wasek , see 682 F.3d at 472, this intervening event provided a similarly legitimate reason under the company’s safety po licy for the disciplinary warning Fletcher received. To resist this conclusion, Fletcher argues that the alleged charting error was, in fact, not an error, citing Johnson’s agreement to that effect at the time. But it is undisputed that Nelson believed that Fletcher made a mistake in his charting, and Fletcher has offered no evidence suggesting that that belief belied a retaliatory motive. Indeed, it is hard to see what evidence he could offer, given that, at the time, Nelson did not even know that Fletcher had complained about her alleged discrimination Whethe r or not Johnson sided with Flet cher about the charting issue, as Fletcher claims, is thus irrelevant to whethe r Nelson had a legitimate reason to report what sheCase No. 17-3327, Fletcher v. U.S. Renal Care

11 saw as a mistake, and equally irrelevant to wh ether the company reasonably decided on that basis to investigate. Once Zimmerman independently c onfirmed that error, U.S. Renal Care had all the reason it needed to discipline Fletcher, disp elling whatever causal inference might have been drawn from the proximity of his compla ints and his disciplinary warning. Fletcher’s two further grounds for finding causation are also unavailing. Fletcher first contends that the fact that his counseling form list ed all of his prior infract ions suggests that he was being subjected to heightened scrutiny for his complaints. Bu t we have made clear that the “critical” question for purposes of cau sation is whether “the scrutiny increased ” after the employee engaged in the protected activity. Hamilton v. GE , 556 F.3d 428, 436 (6th Cir. 2009). Here, Fletcher himself concedes that five of the seven incide nts mentioned in his counseling form came to light before he complained about Nelson, and t hose incidents were already the subject of ongoing concern for both Nelson and Foley before his first complaint. Thus the fact that his counseling form listed those incident s—which Foley explained was simply company practice anyway—hardly speaks to whether the sc rutiny of Fletcher’s performance increased. Fletcher further argues that reasonable jurors could find a retaliatory animus in a remark made by Foley, suggesting that Fletcher “complained a lot” and was a “frequent flyer.” But the complete context of that remark makes clear that Foley’s intent at the time was not retaliatory but remedial: she was counseling Nelson in how to ma nage Fletcher’s concer ns given how many of them he had, so that he would feel that t hose concerns had been understood and were being addressed. Moreover, that c ounseling came in response to con cerns Nelson had raised about Fletcher’s performance on May 20, 2014—several weeks before Fletcher lodged his first complaint about Nelson, in early June. As Foley clearly could not have harbored a retaliatoryCase No. 17-3327, Fletcher v. U.S. Renal Care

12 animus for a complaint Fletcher had yet to make, he cannot rest his prima facie case of retaliation on this basis either. The judgment of the district court is affirmed.