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UNITED STATES DISTRICT COURT

EASTERN DISTRICT

SOUTHERN DIVISION

PEGGY MITCHELL,

Plaintiff,

Case No. 09-10558

v. Honorable Paul D. Borman

United States District Court

CIENA HEALTHCARE MANAGEMENT, INC.,

MCBAIN NURSING CENTER, LLC and

DAVID BOSLOOPER, individually,

Defendants.

__________________________________________/

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT (DKT. NO. 33)

This matter is before the Court on Defendants Ciena Healthcare Management, Inc., McBain

Nursing Center, LLC and David Boslooper’s Motion for Summary Judgment. (Dkt. No. 33.)

Plaintiff’s filed a Response (Dkt. No. 36) and Defendants filed a Reply (Dkt. No. 37.) The Court

heard oral arguments on Thursday, April 15, 2010. For the reasons that follow, the Court GRANTS

Defendants’ motion.

I. BACKGROUND

Plaintiff, a former employee at the Autumnwood nursing home in McBain, Michigan,

alleges in her Complaint that Defendants discriminated against her on the basis of her gender when

they offered her a choice between a demotion or resignation. Plaintiff alleges that she rejected both

options, and was discharged. Plaintiff claims that Defendants’ decision to offer Plaintiff a transfer
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was made two days after Defendant Boslooper, an avowed sexist, expressed his opinion that Plaintiff

was an inferior employee because she was a woman and should be fired. Plaintiff claims that the

decision to offer her a transfer (which Plaintiff argues was an adverse employment decision) was

directly influenced by Defendant Boslooper’s sexist remarks and therefore her discharge was based

at least in part on Plaintiff’s gender. 

Defendants respond that Defendant Boslooper was not the decision maker regarding

Plaintiff’s transfer and that Plaintiff’s steadily declining job performance, not her gender, was the

basis for Plaintiff’s supervisor’s decision to offer Plaintiff a different position. Defendants also

respond that Plaintiff was reassigned and did not suffer an adverse employment decision and cannot

show that she was replaced by a male. Defendants further respond that Defendant Ciena was not

Plaintiff’s employer, that McBain and Ciena cannot be considered joint employers, and that

therefore Defendant Ciena should be dismissed. 

A. Plaintiff’s Employment with McBain

Plaintiff began working as the Accounts Receivable/Resident Business Office Manager at

McBain in January, 1977. (Pl.’s Resp. Ex. 1, Mitchell Dep., 30-32; Defs.’s Mot. Ex. E.) Plaintiff

described her job duties as follows:

Did accounts receivable, which was maintaining records for all monies coming into

the facility, balancing bank statements with what I had posted in the computer,

admission packet, putting all information in the computer for billing purposes and

for medical purposes, insurance information. Everything on the resident when they

came into the facility and went in to the computer I put it all in. I met with the

family members. I did the admission packet. Got everything signed. I would do

mail. When mail would come the administrator would go through it. Any checks for

anything that came into that facility came to me; I posted them, I deposited them and

I kept track of them.

(Defs.’s Mot. Ex. A, Mitchell Dep. 44-45; Defs.’s Mot. Exs. B, C.) Plaintiff testified that she was
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responsible for billing private pay residents, but that Ciena was responsible for billing Medicare and

Medicaid. (Id. at 45.) If private pay residents were not paying, Plaintiff was responsible for

contacting the family to try to collect payment. (Defs.’s Mot. Ex. A, Mitchell Dep. 46.) If Plaintiff

was having trouble with a particular private pay resident, she was to contact David Boslooper, the

Ciena employee in charge of private pay collections who reported directly to Sandy Paynter. (Id;

Defs.’s Mot. Ex. P, Echler Dep. 13.) Plaintiff was also responsible for managing the residents’ trust

funds, and disbursing funds upon a resident’s request. (Defs.’s Mot. Ex. A, Mitchell Dep. 50.)

Plaintiff was partially responsible for month-end closings, which she would run and overnight to

Ciena for final close of the month billings. (Id. at 52.)

From 2001 to 2007, Plaintiff’s immediate supervisor was Dan Echler, who was then the

administrator of the McBain facility. (Defs.’s Mot. Ex. P, Echler Dep. 18.) Plaintiff received

multiple pay raises during this period of time, most of which were recommended by Mr. Echler and

approved by the CFO of Ciena. (Pl.’s Resp. Ex. 7.) Plaintiff also received many good performance

evaluations. (Pl.’s Resp. Exs. 6-11.) On June 21, 2006, Ms. Paynter sent an email to Mr. Echler,

who was still Plaintiff’s administrator at the time, indicating that Ms. Paynter had been reviewing

Plaintiff’s job performance with the CFO of Ciena, Anis Kahn, and that Ciena wanted to be sure that

Plaintiff received a pay increase to $15.50/hour to show appreciation for Plaintiff and to demonstrate

their commitment to keeping her as a long term employee. (Pl.’s Resp. Ex. 8.) While most of

Plaintiff’s reviews during this time were very good, she was given a written warning in September,

2005 for failure to keep her administrator, Mr. Echler, apprised of problematic collection cases,

“placing the facility in danger of not recovering payments timely.” (Defs.’s Mot. Ex. E.)

In October, 2007, Mr. Echler became the Regional Director of Operations for Ciena,
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employed directly by Ciena, and Shannon Reed replaced Mr. Echler as administrator at McBain.

(Pl.’s Resp. Ex. 2, Deposition of Shannon Reed, October 23, 2009, p. 6; Pl.’s Resp. Ex. 3, Echler

Dep. 9, 11.) Shortly after, Plaintiff began to experience some problems with her job performance.

Ms. Reed, Plaintiff’s immediate supervisor at McBain, testified that Plaintiff was not properly

conducting initial intakes, not following up on families who stated that they were pursuing and filing

Medicaid applications, not following up with the Michigan DHS on applications that were filed, and

not keeping Ms. Reed and Ciena’s accounts receivables department aware of what was happening

with delinquent private pay files, all of which resulted in excessive aging in McBain’s private

accounts. (Defs.’s Mot. Ex. Q, Reed Dep. 36, 44-48, 56.) Ms. Reed testified that Plaintiff was

warned in March or May, 2008, that if her account agings did not improve, disciplinary action was

an option. (Defs.’s. Reply, Ex. AA, Reed Dep. 93-94.) 

Mr. Echler, who was the Regional Director at the time of the decline in Plaintiff’s

performance, concurred with Ms. Reed and noted that Plaintiff was not handling the delinquent

private pay accounts appropriately, which were in arrears close to $190,000.00 as of July, 2008.

(Defs.’s Mot. Ex. K; Ex. A, Mitchell Dep. 133.) Mr. Echler also criticized Plaintiff because she was

not pressing hard enough on the families to collect and she was not getting corporate (Ciena)

involved as soon as it became apparent that there were problems. (Defs.’s Mot. Ex. P, Echler Dep.

49.) Mr. Echler testified that this amount of arrearage was dramatically out of line with other

comparable facilities, whose arrears were typically under $25,000, and significantly higher than

when he was the administrator at McBain. (Id. at 58-59.) Recognizing that this significant arrearage

was the result of a few difficult cases, Mr. Echler stated that Plaintiff still should have taken

corrective steps to get Ciena involved and to establish payees, through the court system if necessary,
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long before the amounts escalated. (Id. at 49-50.) Plaintiff states that her agings historically were

well within the normal range but admitted that, as a result of 4 difficult cases, she “temporarily

deviated from the norm.” (Pl.’s Resp. 3-5.)

Mr. Echler’s general impression of Plaintiff was that she was on “the middle ground” in

terms of her professionalism and was a little “rough around the edges.” (Defs.’s Mot. Ex. P, Echler

Dep. 18.) Mr. Echler testified that organization was not Plaintiff’s strong suit and that he found her

lazy, preferring to “gossip” and go “out back smoking” rather than do her job. (Id. at 56.) Mr.

Echler had written Plaintiff up in 2005 for failure to keep corporate apprised of problem cases, and

for putting the facility at risk of not recovering timely payment. (Defs.’s Mot. Ex. E.)

Plaintiff does not deny that there were significant private pay amounts in arrearage in July,

2008, but Plaintiff explains in great detail in her brief and her Affidavit that this was the result of

4 isolated, difficult cases. Plaintiff states that both Ms. Reed and Mr. Echler were aware of these

cases by virtue of the monthly reports that were sent to Ciena which would have documented these

cases and these amounts. (Pl.’s Resp. Ex. 4, Mitchell Aff. ¶¶ 19, 22-24.) Plaintiff also states in her

deposition that problematic cases were really not her responsibility, but were the responsibility of

Mr. Boslooper, collections manager for Ciena. (Id. ¶ 19.) 

B. Plaintiff’s Dealings with Mr. Boslooper

Mr. Boslooper was the collections manager responsible for private collections at Ciena.

(Pl.’s Resp. Ex. 3, Echler Dep. 13.) Mr. Boslooper is no longer employed by Ciena. (Id. at 13.) Mr.

Boslooper’s duties as collections manager included auditing the bookeepers of the various facilities

managed by Ciena, verifying that the facilities were following Ciena’s policies and procedures on

collections and securing guardianships and conservatorships from the court when necessary.
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(Defs.’s Mot. Ex. S, Boslooper Dep. 10-13.) McBain was one of the facilities over which Mr.

Boslooper had auditing responsibilities and Plaintiff, as the accounts receivable manager at McBain,

was under the auditing supervision of Mr. Boslooper. Mr. Echler, as the regional director of

northern homes, was employed by Ciena, and was Mr. Boslooper’s supervisor. (Defs.’s Mot. Ex.

S, Boslooper Dep. 12.)

Plaintiff states that she first began to complain about Mr. Boslooper in October, 2007 when

he became angry with her because she would not come help him one day when he had car trouble

while on his way to McBain for a surprise audit. Plaintiff claims that when she told Mr. Boslooper

that she couldn’t come to help him, he told her she “better watch her back.” (Pl.’s Resp. Ex. 1,

Mitchell Dep. 89-90.) Plaintiff reported this incident to Mr. Echler who told her not to worry about

it, he would handle it. (Id.) Plaintiff states that at a meeting at Ciena in May, 2008, attended by

Plaintiff, Ms. Reed, Mr. Boslooper, Ms. Paynter and Mr. Kahn, Mr. Boslooper attacked Plaintiff in

front of the group on the outstanding private collection amounts at McBain and accused her of not

doing her job. (Id. at 91-92.) Plaintiff stated that Mr. Kahn turned on Ms. Reed in the meeting and

blamed her for not watching over Plaintiff to make sure Plaintiff was doing her job correctly. (Id.

92.) Plaintiff also testified that at this meeting, or at another meeting at about this time, Mr.

Boslooper remarked that he needed to do something to get Plaintiff “off [her] fat ass to do [her] job

because all [she] did was sit with [her] thumbs up [her] ass.” (Id. at 87.) 

Plaintiff states that her next encounter with Mr. Boslooper followed a hearing in court on

July 23, 2008 in Missaukee Probate Court. (Defs.’s Mot. Ex A, Mitchell Dep. 65.) Plaintiff was

in court on petitions for conservatorships for three of her aging accounts. (Id.) Mr. Boslooper

arrived late that day, after the hearing on the first petition had begun, because Ms. Reed had given
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him inaccurate directions to the court. Mr. Boslooper became angry with Plaintiff, who had been

present at the hearing with an attorney, and accused her of undermining him by accepting the

Judge’s recommendation that certain individuals be appointed as guardians for certain McBain

residents. Apparently unbeknownst to Plaintiff, Mr. Boslooper had already made other guardianship

arrangements for at least one of Plaintiff’s aging accounts. (Pl.’s Resp. Ex. 1, Mitchell Dep. 68.)

According to Plaintiff, following the hearing, during which Mr. Boslooper allegedly angered the

judge with his aggressive behavior, Mr. Boslooper assailed Plaintiff for her conduct at the hearing,

telling her “that’s what he gets for thinking a woman could do this job. He should have known a

woman wouldn’t be able to handle this. What was he thinking thinking a woman could do this, and

that he was going to recommend to [Mr. Kahn] that [Plaintiff] be terminated.” (Pl.’s Resp. Ex. 1,

Mitchell Dep. 65-72, 82.) 

Plaintiff testified that after the hearing, back at McBain in a meeting with Plaintiff and Ms.

Reed, Mr. Boslooper stated that he was going to recommend to Mr. Kahn that Plaintiff be fired.

Plaintiff testified that Ms. Reed told Plaintiff to report the incident to Mr. Echler, which Plaintiff did

in a phone call on her way home from work that day. Plaintiff testified that she told Mr. Echler that

Mr. Boslooper had made comments about sending a woman to do the job. (Id. at 83-86.) Plaintiff

never made a formal complaint about the events that transpired at probate court on July 23, 2008.

(Id. at 88.)

Mr. Boslooper testified that “from 2003 up to 2007, [Plaintiff] was a good employee. Her

audits were good. Her performance was good. She was doing a good job.” (Pl.’s Resp. Ex. 13,

Boslooper Dep. 29.) Mr. Boslooper testified that at the end of 2007 and the beginning of 2008,

Plaintiff was “an emotional wreck” and “everything started going downhill at McBain.” (Id. at 29-
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30.) Plaintiff and her supervisor, Ms. Reed, attended a meeting with Ciena management prior to the

July 23, 2008 Missaukee Probate Court hearings, during which Mr. Boslooper assured Ciena

management that he would get the McBain agings under control: “And yes, I went on record with

[Mr. Kahn] that I was going up to these hearings and that we will get it collected, okay, because

that’s the bottom line. He said okay. And he threw the aging and walked out. He was disgusted with

everybody. He told everybody I’m disgusted. He looked at [Ms. Reed], he looked at [Plaintiff], me

and [Ms. Paynter]. And he didn’t say it to anybody in particular. He was just disgusted with

everybody in the room on their aging at McBain.” (Defs.’s Mot. Ex. S, Boslooper Dep. 98.) So,

on July 23, 2008, Mr. Boslooper was attending the Missaukee Probate Court hearings with the

specific directive to get the aging account problems at McBain under control. He was angry and

upset that day because he felt that he had been misled by Plaintiff as to what was going to transpire

at the hearings and he felt that “not one thing went correctly on what I needed to get done. . . . My

whole objective was in the toilet. We didn’t receive any money and we’re still not straight on how

we’re going to solve these problems when I get back to tell [Ms. Paynter] and [Mr. Kahn].” (Pl.’s

Resp. Ex. 13, Boslooper Dep. 85-86.) 

Mr. Boslooper admitted that after the July 23, 2008 hearings, he met with Ms. Reed and told

her that he was upset by Plaintiff’s behavior in court that day. (Pl.’s Resp. Ex. 13, Deposition of

David Boslooper, October 19, 2009, p. 86.) Ms. Reed recalled the meeting with Mr. Boslooper that

day and testified that he was angry and swearing and told her that both she and Plaintiff should be

fired for allowing the private collections to become so past due and that he had already talked to Mr.

Echler about the situation. (Defs.’s Mot. Ex. Q, Reed Dep. 87-88) Ms. Reed testified that Mr.

Boslooper accused both Ms. Reed and Plaintiff of undermining his authority. (Id. at 112.) Mr.
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Boslooper also testified about his call to Mr. Echler to tell him what had happened, in which he

indicated to Mr. Echler that he was frustrated with both Plaintiff and Ms. Reed and that they had

accomplished nothing that day toward getting the aging accounts on track for collection. (Pl.’s

Resp. Ex. 1, Boslooper Dep. at 85-88.) Mr. Boslooper testified that although he complained to Mr.

Echler that day about Plaintiff, he did not recommend that Mr. Echler take any employment action

against Plaintiff, nor could he because he is in no position to do so:

Q: Yes. Let me interrupt you just a second. During this conversation did you

recommend to Dan Eckler [sic] that he take any sort of employment action against

Peggy?

A: Oh, no. I’m not in that position to do that. I just reporting [sic] my findings. I

don’t have no chain of command in reference to Peggy Mitchell. She’s hired by the

administrator and she could be fired by the administrator

People at Ciena, people at the Corporate Office we – for me, for my job I report to

Sandy Paynter and Anis Kahn. And I also informed the RDOs and the

administrators on what my findings are. 

Q: But Shannon, I guess, would be the last word about the folks –

A: Absolutely.

Q: At Autumnwood.

A: Absolutely.

(Pl.’s Resp. Ex. 13, Boslooper Dep. 89.) 

Mr. Echler testified about the phone call he received from Mr. Boslooper that day and

recalled that Mr. Boslooper was very unhappy with the results of the hearings and that Mr.

Boslooper felt that both Ms. Reed and Ms. Mitchell had not done enough to get the appropriate

persons appointed to get the aging accounts under control. (Defs.’s Reply Ex. Y, Echler Dep. 34-

39.) Mr. Echler testified that he was similarly dissatisfied and frustrated with the outcome of the
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collection efforts on the McBain agings and stated that the aging problem at McBain never should

have gone on as long as it did, never should have been in court in the first place and should have had

an established payee long before the court hearing transpired. (Id. at 39-40.) Mr. Echler stated that

Ms. Reed also called him that day to inform him that Plaintiff and Mr. Boslooper “had words” at

court that day, and that Mr. Boslooper had been “rude.” (Id. at 35-36.) Mr. Echler did not recall

anyone reporting any comments made by Mr. Boslooper regarding Plaintiff’s gender. (Id. at 37-38.)

Ms. Paynter’s recollection of the events surrounding the July 23, 2008 hearings, the details

of which she had received from Ms. Reed, confirm the basic scenario described by Plaintiff, Mr.

Echler and Mr. Boslooper:

Q: Now, did you - did you hear that there had been a problem at - at those court

hearings?

A: I was told later that day after the court hearing that there had been a problem, that

the judge had not allowed [Mr. Boslooper] to go into chambers.

Q: Now, who told you that?

A: I was told that by Shannon Reed.

Q: Okay.

A: And also [Mr. Boslooper] had called me on his way back from there, that a lot of

the stuff had been decided before he even got there.

Q: All right. What did - what did [Ms. Reed] tell you about that?

A: Shannon more or less - Her information to me I guess was passed from Ms.

Mitchell on. So more or less she said that [Mr. Boslooper] had been loud and

obnoxious in the courtroom and that the judge would not allow him to go back into

chambers and then in the afternoon would not allow him to come back in for the

other hearing.

Q: Anything else that Ms. Reed told you about that court hearing?

A: No.
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Q: What did [Mr. Boslooper] tell you?

A: David more or less told me that there had been a decision made in regards to [the

aging account petitions] to allow the daughter’s attorney to become the conservator,

and that’s not what had been discussed ahead of time or had been set up. So he was

upset that that had been done, and he had not been made aware of those changes

prior to him getting to court?

Q: Did he place responsibility for that with [Plaintiff]?

A: Yes.

(Defs.’s Mot. Ex. R, Paynter Dep. 46-47.) Plaintiff testified that she never filed a written report

about the incidents that occurred on July 23, 2008. (Defs.’s Mot. Ex. A, Mitchell Dep. 88.) She also

testified that this was the only time that Mr. Boslooper ever allegedly made a reference to her

gender. (Id. at 93.)

Ms. Paynter, Mr. Boslooper’s direct supervisor, testified that Mr. Boslooper could be “loud

and pushy” and that there had been reports that he sometimes used foul language toward family

members on collections visits, but that she never heard Mr. Boslooper make negative comments

about women in general or about Plaintiff in specific. (Id. at 36, 40, 42.) Mr. Echler testified that

Mr. Boslooper had a reputation for being rude, but that he was equally rude to both men and women

and that he never had a complaint from Plaintiff about the way Mr. Boslooper treated women.

(Defs.’s Mot. Ex. P, Echler Dep. 50-51.) Ms. Reed confirmed this perception of Mr. Boslooper,

testifying that he was “rude and unprofessional across the board” and not in way specifically so

towards women. (Defs.’s Mot. Ex Q, Reed Dep. 75-76.) Ms. Reed specifically testified that

Plaintiff never mentioned to her that Mr. Boslooper made a comment to Plaintiff about sending a

woman to do a man’s job but that Mr. Boslooper had made that comment to Ms. Reed, when he was

criticizing her [Ms. Reed] for her part in what had occurred at court on July 23, 2008. (Id. at 111.)
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C. The Decision to Offer Plaintiff a Transfer

In March or April, 2008, Ms. Reed, Mr. Echler and Ms. Paynter began discussing the fact

that Plaintiff “seemed to be overly stressed and that she was not operating as she had previously for

the facility.” (Defs.’s Mot. Ex. R, Paynter Dep. 44.) Sometime after the July 23, 2008 hearings, the

decision was made to offer Plaintiff a transfer to a less stressful position with McBain. (Id. at 50.)

 Mr. Echler was of the opinion that Plaintiff should be terminated: “I said fire her. [Ms.

Reed] said I want to offer her another position in the facility. She had a couple of different positions

she wanted to offer her. I said I don’t think that that’s a good idea. And I said it’s your decision.

You’re the one that has to deal with her. I recommend you fire her. And [Ms. Reed] offered her

another position, which my understanding is she turned down.” (Defs.’s Mot. Ex. P, Echler Dep.

66-67.) Mr. Echler recalled that Plaintiff was offered two different positions - medical records and

payroll. (Id. at 67.) Mr. Echler’s understanding was that Plaintiff was going to be offered the same

amount of pay regardless of the position she accepted and that her transfer was therefore a lateral.

(Id. at 67-68.) There were no discussions about cutting Plaintiff’s pay. (Id. at 68.) Mr. Echler

stated that he had no further discussions with anyone about Plaintiff’s transfer, that it was ultimately

Ms. Reed’s decision. (Id. at 68-69.) Mr. Echler stated that Ms. Reed called him on Monday to tell

him that she had offered the positions to Plaintiff, told her to take the weekend to think about but

that Plaintiff had refused the positions and opted to be terminated. (Id. at 69.) Mr. Echler testified

that Plaintiff was replaced by a woman named Laurie, whose last name he could not recall. (Id.)

Mr. Echler testified that the decision whether or not to terminate Plaintiff was be made by Ms. Reed,

and was not be made by anyone at corporate (Ciena). (Id. at 64.)

Ms. Reed confirmed that Mr. Echler expressed his opinion that Plaintiff should be fired but
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told Ms. Reed that it was her call. (Defs.’s Mot. Ex. Q, Reed Dep. 98-99.) Mr. Boslooper had also

called Ms. Reed after the July 23, 2008 court hearings to inquire what was happening with Plaintiff.

(Id. at 97-98.) Ms. Reed informed Mr. Boslooper that she was still discussing the situation with Mr.

Echler and no decision had been made. Nothing more transpired in Ms. Reed’s conversation with

Mr. Boslooper that day and Ms. Reed had no further conversations with Mr. Boslooper prior to

offering Plaintiff a transfer. (Id. at 97-98.) 

Ms. Reed testified that she felt that Plaintiff was no longer effective in her position as

accounts receivable manager but did not agree with Mr. Echler that Plaintiff should be fired. (Id.

at 88.) Ms. Reed testified that Ms. Paynter was in agreement that Plaintiff should be retained in

another capacity and that in fact Ms. Paynter had suggested offering Plaintiff another position within

the company about a month or so earlier. (Id. at 99, 100-101.) Ms. Paynter testified that she

recommended to both Mr. Echler and Ms. Reed, at different times, that Plaintiff be offered a less

stressful position with the company and that she specifically discussed with Ms. Reed the possibility

of offering Plaintiff the accounts payable position if possibly the person who then held that position,

Laurie Prause, could handle Plaintiff’s position as head of accounts receivable. (Defs.’s Mot. Ex.

R, 50-51.) Ms. Paynter testified that whatever position they decided to offer Plaintiff would be at

the same rate of pay and with the same seniority, just a switch of positions. (Id. at 52.) Ms. Paynter

stated that while Mr. Boslooper had expressed his opinion prior to July 23, 2008 that Plaintiff should

be fired, “[Mr. Boslooper] doesn’t have any authority in those decisions.” (Id. at 53.)

Ms. Reed decided to offer Plaintiff the employee business manager (accounts payable)

position and spoke to Laurie Prause, who occupied that position at the time, to see if Ms. Prause

would be willing to take on Plaintiff’s job position so Ms. Reed could offer Plaintiff Ms. Prause’s
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position. (Defs.’s Mot. Ex. T, Affidavit of Lorrie Prause ¶¶ 2-4.) Ms. Prause agreed and Plaintiff

called Mr. Echler to get his approval to offer Plaintiff either Ms. Prause’s position or the position

of medical records/central supply. (Id. at 99-101.) On July 25, 2008, Ms. Reed spoke with Plaintiff

and explained to her that she had spoken with Mr. Echler and that they did not feel Plaintiff could

handle her accounts receivable position any longer. She offered Plaintiff the position of payroll

bookeeper (Ms. Prause’s position) at the same rate of pay she currently had and also offered her the

position of medical records, also a department head position, but possibly at a lower rate of pay. (Id.

at 101-102.) She told Plaintiff that she needed an answer by Monday (it was Friday when they

spoke). (Id. at 102-104.) Ms. Reed documented her conversation with Plaintiff in a note to

Plaintiff’s personnel file. (Defs.’s Mot. Ex. L; Ex. Q, Reed Dep. 103.) Plaintiff denies that she was

ever offered the position of accounts payable. (Defs.’s Mot. Ex A, Mitchell Dep. 103.) She testified

that Ms. Reed offered her the option of resigning or taking the position of medical records supply

at a pay cut. (Pl.’s Resp. Ex. 1, Mitchell Dep. at 97.) Ms. Reed confirmed that the person then in

the position of medical records director (Dana Manchester) made less than Plaintiff but that it was

not necessarily a given that if Plaintiff opted for that position, her pay would be cut. (Defs.’s Mot.

Ex. Q, Reed Dep. 117.) Indeed, Ms. Reed testified that a pay cut might apply to that position. She

testified though that she positively offered Plaintiff both the accounts payable and the medical

records positions. (Id.) Ms. Manchester confirmed that Ms. Reed was going to offer the accounts

payable job to Plaintiff. Ms. Manchester testified that Ms. Prause called her to “give her a head’s

up” that Ms. Reed was going to offer Ms. Prause’s job (accounts payable) to Plaintiff, but that if

Plaintiff didn’t take it, Ms. Manchester (medical records) might want to consider applying for it.

(Defs.’s Mot. Ex. U, Deposition of Dana Manchester, October 23, 2009, p. 6.) Plaintiff called Ms.
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Reed on Saturday and told her that she did not want to accept a new position and she was quitting.

(Id. at 102.) Ms. Prause did take over Plaintiff’s position as accounts receivable manager. (Defs.’s

Mot. Ex. T, Prause Aff. ¶ 6.)

D. The Relationship Between McBain and Ciena

Defendant McBain operates a long-term care facility (nursing home) called Autumnwood

of McBain. Defendant Ciena contracts with McBain to provide certain management services. The

relationship between McBain and Ciena is set forth in a “Management Agreement’ which describes

the obligations of Ciena in connection with management of the Autumnwood facility. (Defs.’s Mot.

Ex. W.) The Management Agreement states that Ciena shall act as an agent and on behalf of

McBain in performing all listed services including: payroll; obtaining and maintaining insurance;

implementing and maintaining accounting systems; instituting and amending when necessary

general salary scales, personnel policies and employee benefits; recommending a schedule of

charges for services and materials and for collection of accounts receivable and moneys owed to

McBain; administering, processing and collecting all Medicare and Medicaid accounts receivable;

purchasing food, beverage, medical, cleaning and other supplies necessary for the operation and

maintenance of the facility; providing for the payment of accounts payable, employment costs, taxes,

insurance premiums and other financial obligations of McBain; instituting standards for charging

patients for services and for collecting charges from patients or third parties; handling and settling

employee relation matters, union and non-union, including bargaining and negotiating on behalf of

McBain; filing Medicare and Medicaid budget reports and rate increase requests; providing loans

to McBain; providing suggestions and recommendations regarding provision of care to McBain

residents, except that all quality assurance and care delivery authority rest solely with McBain;
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contracting with contractors for provision of services; recruiting and presenting professional and

administrative candidates to McBain, coordinating all legal matters and proceedings relating to

McBain; and managing the employment of the administrator of McBain. 

Employees of Defendant McBain are given the “Autumnwood of McBain Employee

Handbook,” which sets forth the Autumnwood McBain Mission Statement, which pertains to

Defendant McBain and does not mention Defendant Ciena. (Defs.’s Mot. Ex. H.) The Employee

Handbook states that all employees are employed by McBain “at will” and that their employment

with McBain is for no definite duration. (Id. at 5.) The Employee Handbook states that McBain

prefers to fill vacancies from withing its ranks, and that employees should feel free to apply for

transfers. However, the Employee Handbook states, such transfers must be approved by

“corporate.” (Id. at 20.) 

The Employee Handbook does not generally reference Defendant Ciena except that under

the heading of Employee Problem Resolution, Ciena is listed as the ultimate decisionmaker on

employee complaints, which are evaluated by Ciena under the Ciena Corporate Compliance

Program. The Test for Corporate Integrity Agreement, completed by McBain employees, explains

the details of the Ciena Corporate Compliance Program, informing potential employees that if their

facility administrator cannot resolve any employee concerns, the employee can request that the

concern be addressed, and treated in a confidential manner, by the Ciena Complaint Resolution

Program. (Pl.’s Resp. Ex. 18, p. 6.) 

The Affidavit of Sandy Paynter, the Accounts Receivable Director for Ciena, explains that

Ciena does not have any ownership interest in McBain and contracts with McBain to provide

management services including obtaining regulatory compliance and provision of accounting and
17

legal services. (Defs.’s Mot. Ex. G, Affidavit of Sandy Paynter ¶¶ 1-3.) Ms. Paynter states that

Ciena is not involved in the day to day operations of McBain, and that this responsibility lies with

the McBain administrator and onsite management team. (Id. ¶ 4.) Ms. Paynter further states that

Ciena did not employ Plaintiff in this matter, Peggy Mitchell, had no authority to hire, fire or

discipline Ms. Mitchell and did not recommend that Ms. Mitchell be terminated. (Id. ¶¶ 5-7.) Ms.

Paynter explains that Ciena does not set the salaries for McBain employees but does insure that

wages for McBain employees are in line with industry standards and that Ciena offers it customers,

like McBain, the opportunity to participate in a 401(k) Plan but that the customer is responsible for

fund matching. (Id. ¶ 8-9.) 

Plaintiff states that Ciena was responsible for authorizing pay increases, as evidenced by

Plaintiff’s Payroll Change Notices, some of which were approved by Ciena. (Pl.’s Resp. Ex. 7;

Defs.’s Mot. Ex. P, Deposition of Daniel Echler, October 12, 2009, 11-12.) Mr. Echler testified in

his deposition that Ms. Paynter had input on the acceptance or denial of pay increases recommended

by the administrator at McBain. (Defs.’s Mot. Ex. P, Echler Dep. 19-20.) Mr. Echler explained that

while the facilities set the wage level, and the facility administrator can recommend a pay change,

the regional director of operations must approve any change and ultimately, Anis Kahn, the Chief

Financial Officer of Ciena, decides whether or not to adopt the pay increase. (Id. at 18-20; Defs.’s

Mot. Ex. A, Deposition of Peggy Mitchell, August 11, 2009, p. 38.) Finally, Ms. Paynter explains

that while Ciena does not provide insurance benefits to McBain employees, Ciena processes the

payments for benefits through its provision of payroll services, but leaves selection and arrangement

of particular benefits to McBain. (Defs.’s Mot. Ex. G, Paynter Aff. ¶ 10.) The McBain Employee

Handbook also states that benefits, insurance and the 401(k) are provided by the “facility.” (Pl.’s
18

Resp. Ex. 5, p. 25-28.) Mr. Echler explained it somewhat differently in his deposition, where he

stated that Ciena provides a 401(k) and matches to employees and also provides employees with

health insurance benefits at a cost to employees and with paid time off and holiday pay. (Defs.’s

Mot. Ex. P, Echler Dep. 21.)

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 56, a party against whom a claim, counterclaim,

or cross-claim is asserted may “at any time, move with or without supporting affidavits, for a

summary judgment in the party’s favor as to all or any part thereof.” Fed. R. Civ. P. 56(b).

Summary judgment is appropriate where the moving party demonstrates that there is no genuine

issue of material fact as to the existence of an essential element of the nonmoving party’s case on

which the nonmoving party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). “Of course, [the moving party] always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”

Id. at 323; See also Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987).

A fact is “material” for purposes of a motion for summary judgment where proof of that fact

“would have [the] effect of establishing or refuting one of the essential elements of a cause of action

or defense asserted by the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)

(quoting Black’s Law Dictionary 881 (6th ed. 1979)) (citations omitted). A dispute over a material

fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Conversely,
19

where a reasonable jury could not find for the nonmoving party, there is no genuine issue of material

fact for trial. Feliciano v. City of Cleveland, 988 F.2d 649, 654 (6th Cir. 1993). In making this

evaluation, the court must examine the evidence and draw all reasonable inferences in favor of the

non-moving party. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). 

If this burden is met by the moving party, the non-moving party’s failure to make a showing

that is “sufficient to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial,” will mandate the entry of summary judgment.

Celotex, 477 U.S. at 322-23. The non-moving party may not rest upon the mere allegations or

denials of his pleadings, but the response, by affidavits or as otherwise provided in Rule 56, must

set forth specific facts which demonstrate that there is a genuine issue for trial. Fed. R. Civ. P. 56(e).

The rule requires the non-moving party to introduce “evidence of evidentiary quality”

demonstrating the existence of a material fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135,

145 (6th Cir. 1997); see Anderson, 477 U.S. at 252 (holding that the non-moving party must produce

more than a scintilla of evidence to survive summary judgment).

III. ANALYSIS

Plaintiff claims that she was discriminated against on the basis of her gender in violation of

Title VII and the ELCRA. Title VII renders it unlawful for an employer “to fail or refuse to hire or

to discharge any individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual's race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The ELCRA also makes it

unlawful for an employer to discriminate against an employee or prospective employee on the basis

of gender. See M.C.L.A. § 37.2202(1)(a). Claims of discrimination brought pursuant to the ELCRA
20

are analyzed under the same evidentiary framework as claims of discrimination brought under Title

VII. See In Re Rodriguez, 487 F.3d 1001, 1007 (6th Cir. 2007); see also Agnew v. BASF Corp., 286

F.3d 307, 309 (6th Cir. 2002) (citing Town v. Michigan Bell Telephone Co., 455 Mich. 688, 568

N.W.2d 64, 67-68 (1997)).

A. Direct Evidence of Discrimination

“Under both Title VII and Michigan law, a plaintiff may set forth a prima facie case of

employment discrimination by presenting direct evidence of the defendant's discriminatory intent.”

Hopson v. Daimler Chrysler Corp., 306 F.3d 427, 433 (6th Cir. 2002) (citing Nguyen v. City of

Cleveland, 229 F.3d 559, 563 (6th Cir.2000) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 109

S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion)); Harrison v. Olde Fin. Corp., 225

Mich.App. 601, 572 N.W.2d 679, 683 (Mich.Ct.App.1997) (holding that, when the plaintiff presents

direct evidence of discrimination, federal law provides appropriate guidance for analyzing claims

brought under the Michigan Civil Rights Act)). “[D]irect evidence is that evidence which, if

believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the

employer's actions.” Id. (citing Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d

921, 926 (6th Cir.1999) (citations omitted). “Consistent with this definition, direct evidence of

discrimination does not require a factfinder to draw any inferences in order to conclude that the

challenged employment action was motivated at least in part by prejudice against members of the

protected group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.2003). 

To constitute direct evidence of discrimination, statements must be made by the employer

and discriminatory remarks are only attributable to the employer when they are made by a decision

maker. The Sixth Circuit has held that “comments made by individuals who are not involved in the
21

decision-making process regarding the plaintiff's employment do not constitute direct evidence of

discrimination.” Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir.2003). In Hopson, supra, the

court held that comments made by plaintiff’s manager, giving his opinion that race was a factor in

the company’s decision to deny plaintiff a promotion, were not direct evidence of discrimination

where the manager admitted he had no involvement in the decision-making process. 306 F.3d at 433.

See also McDonald v. Union Camp Corp., 898 F.2d 1155, 1161 (6th Cir. 1990) (recognizing the

holdings of the Sixth Circuit that “a statement made by an intermediate level management official

is not indicative of discrimination when the ultimate decision to discharge is made by an upper level

official” and finding that blatant age-related remarks made by plaintiff’s immediate supervisor could

not be imputed to the ultimate decision maker, who disregarded prior recommendations to terminate

plaintiff and as to whom no evidence of discriminatory animus was alleged). 

However, where otherwise isolated or ambiguous remarks are made by an individual with

decision-making authority, such remarks can constitute direct evidence of discrimination. Plaintiff

relies on DiCarlo v. Potter, 358 F.3d 408 (6th Cir. 2004), where the court found that an individual

who was plaintiff’s direct supervisor, and who was solely responsible for evaluating plaintiff’s

performance during his probationary period, had sufficient decision-making authority that his

discriminatory remarks were considered direct evidence of discrimination. Plaintiff’s supervisor

recommended plaintiff’s termination during a meeting with management called specifically to

discuss plaintiff’s. Id. at 413, 416. The court found that the decision to terminate was made after

a “thorough discussion” with plaintiff’s supervisor. The court concluded that this demonstrated that

plaintiff’s supervisor had decision-making authority with respect to plaintiff’s termination. Id. The

court found that, therefore, the supervisor’s alleged comments to plaintiff that he was “a dirty wop”
1 Plaintiff stated in her deposition that Mr. Kahn, the CFO of Ciena, also discriminated against her

but she offers absolutely no evidence in support of this claim. There is no evidence that Mr. Kahn

was involved in any way in the decision to terminate Plaintiff and Plaintiff has not pursued this

claim. 

22

and that there were “too many ‘dirty wops” working at the company, were direct evidence of

discriminatory intent. Id. at 416. 

Plaintiff also relies on Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 568, 572 (6th

Cir. 2003), where the court found direct evidence of discriminatory intent where allegedly agerelated remarks were made directly to plaintiff by the president and vice-president of the company,

the individuals who then made and announced the decision to demote plaintiff. Plaintiff further

relies on Blair v. Henry Filters, Inc., 505 F.3d 517, 531 (6th Cir. 2008) abrogated on other grounds

in Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir. 2009), where the court noted several indicia

that strongly supported a finding that plaintiff’s direct supervisor was substantially involved in

hiring and firing people in plaintiff’s position, including the facts that plaintiff’s supervisor: (1)

called himself the terminator; (2) threatened to fire salespeople; (3) participated in personnel

decisions; and (4) claimed himself that he was authorized to terminate people. Importantly, the court

found, the supervisor’s superiors never denied the fact that plaintiff’s supervisor had the authority

to hire and fire. Id. at 531. In addition, plaintiff’s supervisor was the individual who notified

plaintiff that he was fired and who signed plaintiff’s termination letter.

The sole basis for Plaintiff’s claim of sex discrimination in the instant case is that on one

occasion Mr. Boslooper made a comment to her about sending a woman to do a man’s job and that

Mr. Boslooper threatened that he would get Plaintiff fired for her inability to handle her job.1

 The

unrebutted testimony, however, is that Mr. Boslooper had no authority to terminate Plaintiff’s
23

employment with McBain. Mr. Boslooper, despite his alleged threats to Plaintiff, testified that he

had no authority with respect to Plaintiff’s employment, that Ms. Reed was solely authorized to

terminate Plaintiff. Ms. Paynter and Mr. Echler unequivocally stated that no one from Ciena,

including Mr. Boslooper, had the authority to terminate Plaintiff. The testimony uniformly supports

the fact that Ms. Reed, the administrator at McBain, was solely responsible for the decision as to

Plaintiff’s employment. While Ms. Reed may have spoken with Ms. Paynter and Mr. Echler about

Plaintiff’s situation, she completely disregarded Mr. Echler’s recommendation to fire Plaintiff and

instead offered Plaintiff the option to stay on in a less stressful position. There is no evidence that

Ms. Reed ever consulted Mr. Boslooper or sought his opinion, although he offered his unsolicited

opinion that both Plaintiff and Ms. Reed should be fired. Obviously, Ms. Reed disregarded this

advice as she did not decide to terminate Plaintiff, Ms. Reed is still employed by McBain and Mr.

Boslooper is no longer employed by Ciena.

Unlike the supervisor in DiCarlo, supra, who was solely responsible for plaintiff’s

performance review and who met at length with the ultimate decisionmaker specifically about

plaintiff’s performance just before the decision was made to terminate, there is no evidence that Ms.

Reed ever solicited, let alone heeded, Mr. Boslooper’s advice. Moreover, there was a consensus of

opinion among Ms. Reed, Mr. Echler and Ms. Paynter, none of whom has been accused of bearing

any gender discriminatory animus toward Plaintiff, that Plaintiff had been failing to perform her

responsibilities in the position of accounts receivable. Also, unlike the president and vice president

of the company in Wexler, supra, who made the discriminatory remarks and who then were

personally responsible for demoting plaintiff, there is no evidence that Mr. Boslooper had any

authority with respect to Plaintiff’s employment and indeed all of the evidence that has been
2 McDonnell Douglas v. Green, 411 U.S. 792, 802-805 (1973).

24

presented demonstrates that he has no such ultimate authority. Finally, unlike the supervisor in

Blair, supra, who did have involvement in hiring and firing, and whose superiors did not deny that

he had such authority, all of Mr. Boslooper’s superiors, and Mr. Boslooper himself, deny that he had

such authority. There is simply no direct evidence which, if believed, requires without inference the

conclusion that Plaintiff’s gender motivated the decision to offer her a transfer.

B. Circumstantial Evidence of Discrimination

By contrast to a case based on direct evidence, when a Plaintiff bases a discrimination claim

on indirect evidence, which requires inference to reach the conclusion that the defendant

discriminated against Plaintiff, the court applies the familiar McDonnell Douglas2 burden-shifting

framework. “[T]he plaintiff must first submit evidence from which a reasonable jury could conclude

that he or she established a prima facie case of discrimination. The defendant must then offer

admissible evidence of a legitimate, nondiscriminatory reason for its action. If the defendant does

so, the plaintiff must identify evidence from which a reasonable jury could conclude that the

proffered reason is actually a pretext for unlawful discrimination. Although the burdens of

production shift, ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.’” Blair, supra at 524 (citing

Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)) (other internal citations omitted).

1. Plaintiff’s prima facie case.

To establish a prima facie case of discrimination under both Title VII and ELCRA, a plaintiff

must show that (1) she is a member of a protected group, (2) she was subject to an adverse

employment decision, (3) she was qualified for the position, and (4) she was replaced by a person
25

outside of the protected class. Vincent v. Brewer Co., 514 F.3d 489, 494 (6th Cir. 2007) (citing

Peltier v. United States, 388 F.3d 984, 987 (6th Cir.2004)).

Conceding the first element, Defendants argue that Plaintiff fails to satisfy the second

element, i.e. that she suffered an adverse employment decision. Defendants rely on Kocsis v. MultiCare Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996) for the proposition that “reassignments without

salary or work hour changes do not ordinarily constitute adverse employment decisions in

employment discrimination claims.” In determining whether a particular reassignment was

materially adverse, the court should “consider such factors as a demotion evidenced by a decrease

in wages or salary, a less distinguished title, a material loss of benefits, significantly diminished

responsibilities, or other indices unique to the situation.” Smith v. Chrysler Fin. Corp., 101 F. Supp.

2d 534, 544 (E.D. Mich. 2000) (citing Kocsis, supra at 886). An employee offered a change in

position “has the obligation to give it a try and [can] not speculate that the defendant was acting in

bad faith.” Kocsis, supra at 886 (citations omitted). Further, the employee must “make a real

attempt to compare the two positions before she file[s] her discrimination charge.” Id. at 887.

The evidence overwhelmingly demonstrates that Ms. Reed offered Plaintiff both the position

of accounts payable and the position of director of medical records. Although Plaintiff denies that

she was ever offered the accounts payable position, the testimony of Ms. Paynter, Ms. Reed, Ms.

Prause and Ms. Manchester all support Ms. Reed’s assertion that she offered Plaintiff Ms. Prause’s

position as head of accounts payable to Plaintiff, that Ms. Prause would take Plaintiff’s position in

accounts receivable and, if Plaintiff declined the accounts payable position, Ms. Manchester would

take the accounts payable position. The evidence is undisputed that, if Plaintiff had accepted the

accounts payable position, she would not have incurred an wage reduction. Moreover, even if
26

Plaintiff had accepted the medical records position, a wage decrease was not automatic and,

according to Ms. Paynter, regardless of the position that Plaintiff accepted, her wages and seniority

would stay the same. The meeting with Plaintiff to discuss these transfer options occurred on Friday

July 25, 2008 and Plaintiff decided the next day to decline the transfer and quit her job. Ms. Reed’s

testimony states that a transfer to the medical records position might result in a reduction in pay.

(Defs.’s Mot. Ex. Q, Reed Dep. 117.) Even assuming, however, that Plaintiff suffered an adverse

employment decision, her failure to demonstrate that she was replaced by someone outside the

protected class, or that a similarly-situated male was treated more favorably than she is, as discussed

below, fatal to her claim.

Defendants next contend that Plaintiff cannot establish the third element of a prima facie

case, that she was qualified for the position of accounts receivable. The evidence presented on this

issue demonstrates that the accounts payable at McBain were far in excess of the normally

acceptable range of aging accounts and that Plaintiff had failed to perform this essential duty of her

job. However, the Court need not decide this issue because there is absolutely no genuine issue of

material fact as to the failure of the fourth element of Plaintiff’s prima facie case. Plaintiff does not

contest, and there is no evidence to contradict the fact, that Plaintiff was replaced by a woman,

Laurie Prause. In addition, Dana Manchester and Mary Bowers, both females, were placed in the

positions of medical records and accounts payable, respectively. Nor does Plaintiff present any

evidence that similarly-situated male employees, i.e. those with agings in excess of $190,000, were

treated more favorably than Plaintiff. There is a complete lack of direct or statistical evidence to

support the fourth element of Plaintiff’s prima facie case of sex discrimination. 

Plaintiff attempts to build a case of sex discrimination on a stray, isolated remark of an
27

individual who was not a decision maker for her employer and was not shown to be influential in

Ms. Reed’s decision to offer Plaintiff a transfer. The Court is mindful that “[t]he key question is

always whether, under the particular facts and context of the case at hand, the plaintiff has presented

sufficient evidence to permit a reasonable jury to conclude that he or she suffered an adverse

employment action under the circumstances giving rise to an inference of unlawful discrimination.”

Blair, supra at 529 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981)). The Court concludes that Plaintiff has not presented such evidence in this case. 

2. Evidence of pretext

Even assuming arguendo that Plaintiff could establish a prima facie case of sex

discrimination, she cannot demonstrate that Defendants’ proffered reason for offering her a transfer,

i.e. that she was failing in the essential purpose of her job which was to collect from private paying

residents, was a pretext. “To evaluate whether a plaintiff has created a genuine issue of material fact

that the defendant’s proffered non-discriminatory reason did not actually motivate the defendant’s

challenged conduct, [the court will] examine the evidence the plaintiff produces to establish a prima

facie case, evidence discrediting the defendant’s proffered reason, as well as any additional evidence

the plaintiff chooses to put forth.” Blair, supra at 532. The weakness, indeed failure, of Plaintiff’s

prima facie case is discussed at length above and an analysis of Plaintiff’s pretext argument further

supports the conclusion that Plaintiff’s transfer was not motivated in any way by discriminatory

purpose related to her gender but was related to a widely-held dissatisfaction with Plaintiff’s

performance of her job. 

Mr. Echler, as to whom no discriminatory animus is attributed, began documenting

Plaintiff’s failures to collect and to keep Ciena informed of problem cases as early as September of
28

2005. (Defs.’s Mot. Ex. E.) The problem continued to escalate until finally in May or June, 2008,

meetings were held at Ciena specifically to address the agings problem at McBain and both Plaintiff

and Ms. Reed were told that the issue had to be rectified. Plaintiff admits that there was a

substantial problem with the McBain agings, although she attempts to explain them away as a series

of bad situations. This does not alter the undisputed fact that the problem was serious and that

Plaintiff was not able to get it under control. Plaintiff has never claimed that Ms. Paynter, Ms. Reed

or Mr. Echler, the people responsible for challenging Plaintiff’s performance, ever discriminated

against her based on her sex.

Plaintiff proffers, as evidence of Defendants’ discrimination, the remark by Mr. Boslooper

about sending a woman to do a man’s job (a remark directed at both Ms. Reed and Plaintiff) and his

threat that he would have her fired (a remark also directed at both Ms. Reed and Plaintiff). As

discussed at length above, Mr. Boslooper had no authority to have Plaintiff terminated or to

influence that decision in any way. Mr. Boslooper was never consulted in the decision to offer

Plaintiff a different position at McBain and indeed his opinion that Plaintiff should be fired was

obviously rejected by Ms. Reed, who alone made the decision to offer Plaintiff a transfer, also

declining to accept the advice of Mr. Echler that Plaintiff be fired. Every person who testified in this

matter, including Mr. Boslooper himself, testified that Mr. Boslooper had no authority to terminate

Plaintiff and had no input in Ms. Reed’s decision to offer Plaintiff a transfer within the company.

See McDonald, supra at 1162 (reasoning that where the allegedly discriminatory remarks of a

supervisor cannot be attributed to the ultimate decision-maker, no evidence of pretext can be found).

Although a discriminatory remark made by one with no managerial authority over personnel

decisions is not considered indicative of discrimination, see McDonald, supra, such remarks are not
29

categorically irrelevant. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th Cir.

1998). Therefore, when evaluating the issue of pretext, the Court may consider discriminatory

remarks made “by those who did not independently have the authority or did not directly exercise

their authority to fire the plaintiff, but who nevertheless played a meaningful role in the decision to

terminate plaintiff.” Id. Assuming that a reasonable jury could conclude that Mr. Boslooper, who

was in charge of private collections for Ciena, was in a position, by virtue of his ability to opine on

Plaintiff’s job performance, to affect decisions relating to her employment status, this does not end

the inquiry. The Court still must examine the nexus between the discriminatory remarks and the

allegedly adverse employment decision. Id. at 355. For example, was the remark truly the isolated

opinion of a third-party or was the comment one of many in a pattern of discriminatory remarks

which may establish a “general discriminatory atmosphere” or a “cumulative managerial attitude”

among the company’s decision-makers. Id. at 356-357. There is no evidence, and one could not

reasonably conclude, given the significant presence of women in the workforce at McBain, that Mr.

Boslooper’s remark was part of a larger culture of gender-related animus at the company or was

anything other than a one-off ill-conceived remark of an individual with a reputation for being

generally loud and rude to men and women alike. 

“The determinative question is whether [Plaintiff] has submitted evidence that [Mr.

Boslooper’s] sexual animus was a cause of the [decision to transfer].” Wilson, supra at 946. Even

if a jury were to believe that Mr. Boslooper made the comments to Plaintiff which she attributes to

him, no reasonable juror could decide, in light of the substantial evidence to the contrary, that Ms.

Reed’s conclusion (and the consensus of Ciena management) that Plaintiff could no longer handle

the accounts receivable position and Ms. Reed’s ultimate decision to offer Plaintiff a transfer for this
3 Because the Court concludes that there is no genuine issue of fact that Plaintiff was not

discriminated against on the basis of her gender, it does not address the issue of whether Ciena and

McBain are joint employers.

30

reason, were instead somehow motivated by Mr. Boslooper’s allegedly offensive remarks. Although

Ms. Reed, Mr. Echler and Ms. Paynter may have concurred with Mr. Boslooper’s opinion that

Plaintiff was not performing the duties of her position, there is absolutely no evidence to suggest that

their conclusions were in any way influenced by Mr. Boslooper’s discriminatory remarks about

Plaintiff’s gender. Such a conclusion would require something beyond inference and more in the

nature of rank speculation.3

 

IV. CONCLUSION

The Court GRANTS Defendants’ Motion for Summary Judgment (Dkt. No. 33) and

dismisses the case with prejudice.

IT IS SO ORDERED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: April 16, 2010

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

April 16, 2010.

S/Denise Goodine 

Case Manager