NOT RECOMMENDED FOR PUBLICATION File Name: 17a0343n.06
No. 16-1722

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NANCY ROSCHIVAL, Plaintiff-Appellant,

v. HURLEY MEDICAL CENTER; MELANY GAVULIC, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: MOORE, SUTTON, an d WHITE, Circuit Judges. HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Nancy Roschival, a White female, worked at Hurley Medical Center (HMC), a public hospital owned by the City of Flint, Michigan. After she was laid off pursuant to a reduction in force (RIF), she filed this action asserting a 42 U.S.C. § 1983 claim against Me lany Gavulic, the chief executive officer of HMC (also White), alleging that Gavulic’s decision to lay her off, rather than an African-American male coworker, was made on the basis of race. In her amended complaint, Roschival added HMC as a defendant with respec t to new counts, against both Gavulic and HMC, for wrongful discharge under Michigan common law and raci al discrimination under Michigan’s ElliottLarsen Civil Rights Act. After discovery, Defendants moved for summary judgment. The district court found that Roschival failed to show that Gavulic’s nondiscriminatory reason for laying her off was pretext for racial discrimination and granted Gavulic su mmary judgment as to the § 1983 claim. ItNo. 16-1722, Roschival v. Hurley Med. Center

-2- declined to exercise supplemental jurisdiction ov er the remaining state-law claims and dismissed them without prejudice. Accepting arguendo that Roschival establis hed a prima facie case of racial discrimination, she failed to meet her burden of showing that Gavulic’s proffered legitimate, nondiscriminatory reason for laying her off was a pretext for discrimination. For that reason, we AFFIRM

. I A Roschival began working in HMC’s human-re sources department (HR) in 1995. For the majority of her time there, she was responsible for processing workers’ compensation claims in the Employee Health Office (EHO), a unit affiliated with HR that provided occupational-health services to HMC employees. Her job title was “Service Center Advisor.” Between fall 2013 and summer 2014, HMC reorgani zed and eventually closed the EHO: its functions were transferred to outside contractors and a new st artup subsidiary, Hurley Health Services (HHS). As a result of this reorganization, EHO’s staff was largely laid off. In September 2013, Colleen Mansour, interim senior ad ministrator within HR, informed Roschival that her position as Service Ce nter Advisor was being elimin ated and that she would be transferred to a position in HR. After the transfer, Roschival was assigned the job title “Human Resources Coordinator I” (HRC1), but her duties remained essentially the same and she continued to process workers’ compensation claims (although HMC had begun to outs ource this work to a contractor). Jamal Dozier (Dozier), an African-American man with fewer years’ seniority than Roschival, also worked in HR as “Human Resources Coordinato r” (HRC). Dozier was responsible for employeeNo. 16-1722, Roschival v. Hurley Med. Center

-3- orientation and other HR activitie s, but was never involved in workers’ compensation claims. Roschival and Dozier were the only employ ees with the HRC1 and HRC job titles.
B HMC closed the EHO completely on August 4, 2014 and transferred the remaining workers’ compensation duties handled by Roschival to its outside contractor. As a result of this reorganization, Roschival received a layoff notice on July 31, 2014, signed by Gavulic. ( Id. ) The notice stated that Roschival’s employment would be terminated effective August 14, 2013 because “a decision has been made to close th e [EHO] and utilize the Occupational Medicine Services through [HHS].” Term. Lett., R. 23 -17, PID 326. In making this layoff decision, Gavulic followed the recommendation of Deidra Roriex–an African-American woman and HR generalist–that Roschival was the only person in her job classification and was thus the appropriate employee to lay off based on HM C’s reduction-in-force (RIF) procedures. 1 Many HMC employees belong to labor unions. The others, including Roschival and Dozier, are non-union employees. Layoffs of union members are governed by collectivebargaining agreements, while layoffs of non- union employees are governed by HMC’s exemptemployee handbook. The parties disagree whethe r Gavulic and Roriex followed HMC’s RIF policy in laying Roschival off rather than Dozi er. The handbook states in pertinent part: For incidences of reduction in the work force, management reserves the right to determine the classifications and departments in which layoffs w ill occur. Recalls will be made in reverse order of layoffs within classification and department. . . . Layoffs or status reductions within classifications and department are made in reve rse order of seniority within classification and department. . . . Handbook, R. 23-7, PID 244.

1 Gavulic explained in her deposition: “I was not clear on how [the layoff resulting from the EHO closure] would be transacted. All I knew is there would no longer be work in the [EHO] for what Nancy was doing and there would be an impact so I was seeking HR’s role in how that would be handled.” Gavulic Dep., R. 23-6, PID 231.No. 16-1722, Roschival v. Hurley Med. Center

-4- The parties dispute what “classification” m eans under the policy and whether it includes the concept of a job series, such as Technici an, Technician I, Tech nician II, and so on. 2 Roschival argues that her HRC1 position was within the same classification series as Dozier’s. If she is correct, then because she had seniority she should have been allowed to “bump” Dozier (i.e., take his position while he was laid off). HMC and Gavulic assert that HRC1 and HRC were separate classifications, and that they had discretion to eliminate the HRC1 position in connection with the EHO closure rather than the H RC position. If theirs is the correct view, then because plaintiff was the only employee in her classification, she was the only employee to lay off. Roschival deposed former HR employees to de velop factual support fo r her view that the proper RIF procedure was not followed. Rebecca Jackson, HMC’s assistant director of HR operations from January 2001 to October 2010 (four years before th e layoff), testified that “classification[]” “includ[es] their job title, their pay grade, their multi-code, their job code . . . .” Jackson Dep., R. 23-10, PID 303. She also testified that a classification might contai n a job series, such as Nurse, Nurse I, Nurse II, and so on. Jackson explained that identifying a series requires “look[ ing] back at the job description[s], and the MER’s [(minimum entran ce requirements)]” because a job series has progressive job requirements such that a senior role encompasses the requirements of all junior roles. Id. at PID 302. Lisa Foster, who was employed at HMC as assi stant HR director from July 1995 to July 2010, and who trained Roriex on conducting layoffs, al so testified regarding “series” within a job classification. Foster described a se ries as “jobs within a job,” i.e., that jobs in a series are all

2 The concept of a job series was part of HMC’s pr ior 1978 RIF policy. Although it was not explicitly included in the policy that was operative at the time of Roschival’s layoff, it appears that at least some HR employees continued using the concept as an interpretive gloss regarding job classifications.No. 16-1722, Roschival v. Hurley Med. Center

-5- related to one another. Foster ex plained that to ensure clarity, she created specific titles to show that a job was in a series. 3 She further stated that any jobs with the same title, but differing numbers, were in a series. 4 In classifying a series, Foster al so looked at the j ob responsibilities and duties, MERs, and title, to de termine how related they were. Consistent with this testimony, Roschival argues that her job and Dozier’s were part of the same classification—Human Resources Coordina tor—and that the difference in their titles reflected progression within the same job seri es. Indeed, the MERs for HRC1 and HRC do appear to be similar and progressive, with H RC1 carrying all HRC’s en try requirements, and

more. Roriex also described a job series as progr essive: “. . . Maintenance Mechanic I, Maintenance Mechanic II, Mainte nance Mechanic III, the jobs are the same. But when you move along in the progression, you get more responsibility and additional compensation.” Roriex Dep., R. 23-8, PID 275. Yet with resp ect to the HRC and HRC1 positions, Roriex testified that she considered the two positions to be different jobs because of their similar, but distinct, MERs, and further because the job resp onsibilities differed. When questioned, she did agree that HRC1 encompassed the core res ponsibilities of HRC, in addition to other responsibilities. In prepari ng the layoff recommendation for Gavulic, however, she determined that Roschival was alone her in classificatio n because “[t]here was no one else in Human Resources with her same title.” Id. at PID 277.

3 Foster’s examples include: “Health Unit Coordinato r Trainee, then Health Un it Coordinator; Accountant, Senior Accountant; Medical Social Worker I, Medical So cial Worker II; Maintenanc e Mechanic I, Maintenance Mechanic II, Maintenance Mechanic III. ” Foster Dep., R. 23-11, PID 308.

4 The HRC1 and HRC job descriptions were written in 2013, approximately three years after Foster left HMC, and so she was not in a position to say that she intended these jobs to be a series.No. 16-1722, Roschival v. Hurley Med. Center

-6- Gavulic testified that she was always under th e impression that after the closure of the EHO, Roschival’s role, and thus her employment, would be termin ated. When she asked Roriex to begin preparing the layoff paperwork, she di d so with the assumption that the paperwork would be for Roschival. At the same time, according to Gavulic’s testimony, it was Roriex who determined that Roschival was the right em ployee to lay off and Gavulic relied on that determination. In sum, although the RIF policy is ambiguous, th ere is support for Roschival’s claim that HMC did not follow it. C In her deposition, Roschival acknowledged that Gavulic’s decision to close the EHO was not racially motivated. Although she does not state it di rectly, her § 1983 claim follows a theory that (1) HMC was faced with laying off either her or Dozier, (2) Roschival had seniority over Dozier in the same job series and thus Dozier should have been laid off, (3) HMC wanted to retain African-American employees, and (4) so it violated its own RI F procedure and laid Roschival off instead of Dozier. In reviewing the layoff notice for Roschival, Gavulic did discuss with Roriex whether Roschival or Dozier was the right person to lay off. Roriex testified: Q. All right. So there was some discussion between you and Melany [Gavulic], whether it be email or otherwise, as to who was to be laid off; Jamal [Dozier] or Nancy? A. She asked me how to handle the layoff for Nancy. Because EHO, they were getting rid of EHO, and we didn’t have a place to put Nancy. So it resulted in a layoff. Q. So how did Jamal[ Dozier]’s name come up? A. I believe she just wanted to know that it wasn’t Jamal because of their titles. The titles were different. So I told her, no, it wasn’t Jamal. Q. So she expressed to you that she did not want to see Jamal lose his job? A. Yeah, she did say she don’t want—she didn’t want anybody to lose their job. Q. She expressed to you that she didn ’t want to see Jamal lose his job? A. I believe she did say that. Roriex Dep., R. 23-8, PID 280.No. 16-1722, Roschival v. Hurley Med. Center

-7- Other than her contention that the RIF policy was misapplied, Roschival acknowledged that she had no knowledge of Gavulic or anyone in HR discriminating against White employees, stating “I don’t know why [Gavulic] laid me of f.” Roschival Dep., R. 23-5, PID 227. Jackson averred, though, that she believed a discriminato ry atmosphere may have been at play: The one explanation as to why Mr. Dozier was reta ined over Ms. Roschival is because there was a past practice within the Human Resource Department, and also within the hosp ital as a whole, that when reorganization/layoffs did occur, special preference was given to African-American employees in their retention. In other words, Hu rley Medical Center made great strides to retain African-American employees during reorganization and layoffs. Caucasian employees were not given the same consideration as African -American employees with respect to reorganizations/layoffs within the hospital. Jackson Aff., R. 22-11, PID 168. However, when she was deposed over a year after making her affidavit, Jackson testified that the pressure to retain African Ameri cans came from HMC’s unions, not management. Roschival and Dozier were both non-union employees. Roschival offered no further ev idence of a discriminatory e nvironment, who might have engaged in discriminatory conduct, or when it o ccurred. Roschival was asked, for example, why she believed a discriminatory atmosphere exis ted at HMC, but answer ed by referring to an incident in which HMC wa s accused of discriminating against , rather than in favor of, AfricanAmerican employees.
II We review the district court’s grant of summary judgment de novo. Syzmanski v. Columbia Transp. Co. , 154 F.3d 591, 593 (6th Cir. 1998). Summary judgment is proper “if the movant s hows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a ma tter of law.” Fed. R. Civ. P. 56(c). Reasonable and justifiable inferences must be viewed in the light most favorable to the non-moving party when deciding whether a grant of summary judgment is proper. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). The “mere existence of aNo. 16-1722, Roschival v. Hurley Med. Center

-8- scintilla” of evidence in the non-moving party’s fa vor, however, is insufficient to avoid summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986). F actual disputes that are “merely colorable” or “not significantly proba tive” do not defeat a properly supported summaryjudgment motion. Kraft v. United States , 991 F.2d 292, 296 (6th Cir. 1993) (quoting Anderson , 477 U.S. at 249–50). Rather, a court must look to whether there are genuine disputes of material fact. A factual dispute is “genuine” when a “r easonable jury could return a verdict for the nonmoving party.” Henson v. Nat’l Aeronautics & Space Admin. , 14 F.3d 1143, 1148 (6th Cir. 1994) (quoting Anderson , 477 U.S. at 248). A “material” fact affects the outcome of the case. Lenning v. Commercial Union Ins. Co. , 260 F.3d 575, 581 (6th Cir. 2001) (citing Anderson , 477 U.S. at 248). A public employee’s constitutional rights under th e Equal Protection Clause are violated when her employment is terminated on account of race. See 42 U.S.C. § 1983. She may seek redress under § 1983 against individuals who vi olate her equal-protec tion rights, although she bears the “ultimate burden of persuading the court that she has been the victim of intentional discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 256 (1981). Absent direct evidence of discrimina tion, a § 1983 suit must proceed based on circumstantial evidence under th e burden-shifting analysis of McDonnell Douglas Corp. v.
Green , 411 U.S. 792, 802 (1971); cf. also Weberg v. Franks , 229 F.3d 514, 522–23 (6th Cir. 2000) (holding discrimination may be proven by dire ct or circumstantial evidence in both the Title VII and § 1983 employment-discrimination contexts). Under McDonnell Douglas , the plaintiff has an initial burden of establishing a prima facie case of discrimination. A pr ima facie case is esta blished when the plai ntiff shows that she was “(1) a member of a protected class; (2) discharged; (3) qualifie d for the position; and (4) thatNo. 16-1722, Roschival v. Hurley Med. Center

-9- a similarly situated non-protected person was treated better.” Rachells v. Cingular Wireless Emp. Servs., LLC , 732 F.3d 652, 661 (6th Cir. 2013) (cita tion and internal quotation marks omitted). This framework is modified, however, in the context of reverse discrimination and RIFs. As part of the first McDonnell Douglas prong, a plaintiff alleging reverse discrimination must “demonstrate ‘background circumstances [to] support the suspicion th at the defendant is that unusual employer who discriminates against the majority.” Zambetti v. Cuyahoga Cmty. Coll. , 314 F.3d 249, 255 (6th Cir. 2002) (quoting Murray v. Thistledown Racing Club, Inc. , 770 F.2d 63, 67 (6th Cir. 1985)). In the RIF context, the fourth McDonnell Douglas prong is modified as well, and the plain tiff must provide “additional direct , circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Rachells , 732 F.3d at 661 (quoting Geiger v. Tower Auto. , 579 F.3d 614, 622 (6th Cir. 2009)). The plaintiff must provi de a “consistent benchmark to gauge” whether she was singled out. Bender v. Hecht’s Dep’t Stores , 455 F.3d 612, 621 (6th Cir. 2006). This means showing disparate treatment compared to (1) all employees who shared the plaintiff’s position or an equivalent position and (2) all empl oyees whose positions were to be eliminated and whose terminations were reviewed by the same decision maker. After the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a reasonable, nondiscrimi natory reason for the termination. If the defendant meets this burden, the plaintiff must overcom e the explanation by offering evidence that would allow a reasonable jury to conclude that the defenda nt’s explanation was a pretext for unlawful discrimination. Jackson v. VHS Detroit Receiving Hosp., Inc. , 814 F.3d 769, 779 (6th Cir. 2016). Pretext is established when the plaintiff demonstr ates “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the adverse employmentNo. 16-1722, Roschival v. Hurley Med. Center

-10- action, or (3) that they we re insufficient to motivate [t he adverse employment action].” 5 Davis v. Cintas Corp. , 717 F.3d 476, 491 (6th Cir. 2013) (citing Hedrick v. W. Reserve Care Sys. , 355 F.3d 444, 460 (6th Cir. 2004)) (inter nal alterations omitted). Besides this Davis test, a plaintiff may also demonstrate pretext by “offering evidence which challenges the reasonableness of the employer’s decision to the extent that such an inquiry sheds light on whether the employe r’s proffered reason for the em ployment action was its actual motivation.” Risch v. Royal Oak Police Dep’t , 581 F.3d 383, 391 (6th Cir. 2009) (internal citation and quotation marks omitted) . Further, this court has he ld that deviating from policy may point to pretext, at least in light of other relevant facts. See Skalka v. Fernald Envtl. Restoration Mgmt. Corp. , 178 F.3d 414, 422 (6th Cir. 1999) (hol ding the presence of a number of factors, including “deviat[ion] from . . . normal procedures” that preceded the RIF layoff of the oldest, most highly-rated employee in a peer group permitted a jury finding of agediscrimination pretext).
III There is no direct evidence that Gavulic chos e to lay Roschival off on account of race. Roschival accordingly must esta blish a prima facie case under the McDonnell Douglas framework. Solely for our analysis, we assume arguendo that Roschival has established a prima facie case, because even on that assumption she ca nnot meet her burden to show that defendants’ proffered legitimate, nondiscriminatory reas on for laying her off was pretext to unlawful discrimination. Gavulic articulates a legitimate, nondiscrimina tory reason for Roschival’s layoff: the business decision to close th e EHO meant that Roschival’s role was no longer needed and

5 Jackson involved Title VII, but this test also applies to § 1983 discrimination claims. See Alexander v. Ohio State Univ. Coll. of Soc. Work , 429 F. App’x 481, 487 (6th Cir. 2011).No. 16-1722, Roschival v. Hurley Med. Center

-11- Gavulic (who generally did not participate in la yoffs and was unfamiliar with administering the RIF procedure) relied on Roriex’s conclusion that Roschival was the appropriate employee to lay off. Plaintiff argues that HRC1 and HRC were in a job series and that the proper procedure was to lay off an employee in the HRC position (here, Dozier) before an employee in the HRC1 position (here, Roschival). Nevertheless, even assuming Roschival is co rrect that Gavulic and Roriex failed to follow the policy, that would not contradict Roriex’s explanation that she subjectively believed that Roschival held a differe nt job classification fr om Dozier, was the only person in that classificati on, and thus was the only person to be laid off. Even if the RIF policy was not properly fo llowed, Gavulic proffered a legitimate, nondiscriminatory reason for Roschival’s layoff. To overcome this pro ffered reason, plaintiff must establish evidence that the reason was pretex t to discriminate. The evidence in the record, however, does not raise a genuine dispute whether (1) the proffered reason had no basis in fact, (2) the proffered reason did no t actually motivate Roschival’s layoff, or (3) that it was insufficient to motivate Roschival’s layoff. See Davis , 717 F.3d at 491. The events leading to plaintiff’s layoff were triggered by Gavulic’s business decision to close the EHO and transfer its functions, including those handled by plaintiff, to other entities. Further, this business decision and Roriex’s application of the RIF policy, even if flawed, and Gavulic ’s reliance on Roriex’s application of the policy, were sufficient to motivate Gavulic’s decision to lay off Roschival. Roschival cannot demonstrate pretext under the Davis test. Roschival may also show pretext by pr esenting evidence that challenges the reasonableness of Gavulic’s decision or that sh eds light on whether the proffered reason for her decision actually motivated her. See Risch , 581 F.3d at 391. Roschival relies on a failure toNo. 16-1722, Roschival v. Hurley Med. Center

-12- follow the RIF procedure as evidence of pretext. However, even assu ming Gavulic personally and knowingly misapplied the RIF policy specifically to spare Dozier’s job at the expense of Roschival’s, it still would not follow from the re cord that she favored Dozier because of his race . Plaintiff herself testified that she had no know ledge of Gavulic discriminating against White employees, was not aware of anyone in HR (the department she worked in) who did so, and did not know why Gavulic laid her off. This circuit has not held that “deviat[ion] from . . . normal procedures” in itself permits a jury finding of pr etext, although it has found it to be one piece of evidence that supports such a finding. Cf. Skalka , 178 F.3d at 422. Here, such a finding would not be supported in a context involving two employees with undi sputedly different job duties (workers’ compensation and new-employee orient ation, respectively), a business decision to eliminate one set of job duties, and the layo ff of the employee who performed those duties.
IV Even assuming a prima facie case, defendant Gavulic proffers a legitimate, nondiscriminatory reason for laying Roschival o ff. On the record evidence, Roschival cannot rebut this reason as pretext for unlawful discrimination, and accordingly we AFFIRM the grant of summary judgment.