NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0203n.06

No. 21-3773

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KATHERINE MERHULIK,

Plaintiff-Appellant,

v.

WELTMAN, WEINBERG & REIS CO. LPA, 

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE NORTHERN 

DISTRICT OF OHIO 

OPINION

Before: SILER, CLAY, and MURPHY, Circuit Judges.

CLAY, Circuit Judge. Plaintiff Katherine Merhulik appeals the district court’s order 

granting summary judgment for Defendant Weltman, Weinberg & Reis Co. (“Weltman”) in this 

action asserting violations of federal and state anti-discrimination and anti-retaliation laws under 

the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1), (d) (“ADEA”) and Ohio’s 

state law corollary, Ohio Rev. Code Ann. §§ 4112.02(I), .14. For the reasons set forth below, this 

Court AFFIRMS.

I. BACKGROUND

On July 13, 2009, at the age of fifty-two, Plaintiff Katherine Merhulik, now known as 

Katherine Leeds, began employment at Defendant Weltman, a law firm, as a legal collector. 

Within a year of employment, Merhulik was transferred from the downtown Cleveland office to 

the Brooklyn Heights office. With that office change, the scope of her job duties also shifted; she 

began to focus on the Ohio Attorney General’s portfolio, which included complicated student loans 
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and tax collections. Management of this portfolio proved onerous for Merhulik. While Merhulik 

sometimes met the monthly collections expectations, measured by calls made and revenue 

collected, she more often struggled to meet the departmental quantitative goals.

On February 9, 2010, her supervisor at Weltman issued Plaintiff a documented verbal 

warning for unsatisfactory job performance for failure to achieve monthly goals for November 

2009, December 2009, and January 2010 and placed her on a performance improvement plan. 

Another verbal warning came on June 1, 2011, when Merhulik failed to follow the applicable 

procedures required to comply with federal law, which resulted in an unauthorized payment being 

deducted from an individual’s bank account. On July 6, 2011, Merhulik received a written warning 

for poor performance for failing to meet goals for the prior six months and a low three-month 

collections average. Another verbal warning for performance came on June 8, 2012, instructing 

Merhulik to increase the percentage of her collections goal for the following month. This Merhulik 

failed to do, as she achieved only 75.40% of her collections goal, falling short of the expected 

range of 85–90% of debts collected. As a result, Weltman issued a written warning to Plaintiff on 

July 3, 2012. 

Her annual performance evaluations summarized these shortcomings. In her first written 

performance review on February 25, 2010, Merhulik received a rating of two out of a possible five 

on the “productivity” and “monthly quotas” categories, which correlated with a rating of “did not 

meet the standard.” Her 2010 mid-year evaluation led to placement on a performance 

improvement plan. More of the same came in Plaintiff’s July 2011 annual review, in which she 

again received a two of five in the productivity category. It noted she “has had challenges with 

meeting her goal requirements recently” and that she has struggled with communication and with 

“handling high-stress situations[.]” (July 31, 2011 Performance Evaluation, R. 35-3, PageID # 
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451). Her last annual review as a Weltman collector came in August 2012. In that evaluation, 

Merhulik received a rating of two in the “job knowledge, skills & abilities” section because, per 

her supervisor, “Kathy struggles to use the knowledge and training that she has been given to 

effectively complete her job. She struggles to bring her route current[,] which ultimately affects 

her performance.” (Aug. Evaluation, R. 35-3, PageID # 456). Defendant again placed Plaintiff 

on a performance improvement plan.

In late 2012, Defendant posted an opening for a position called Quality Assurance Call 

Monitor in the Collections Strategy Services Department. Merhulik decided to apply, and, on 

November 24, 2012, she assumed that position. Plaintiff characterizes this job change as a 

promotion; Defendant points out, however, that the job change occurred because Merhulik applied 

to and obtained an open position. Most importantly, for present purposes, once Plaintiff moved 

out of the collector position in November 2012, that marked the last time she ever worked as a 

collector, whether for Defendant or any other organization. Merhulik’s new role at Weltman 

proved more apt for her, and she met or exceeded all job expectations in her 2014 and 2015 

performance evaluations.

Plaintiff’s employment at Weltman ended on September 1, 2016, when Merhulik, then age 

fifty-nine, had her position eliminated in a company-wide reduction in force. Sixteen of the 

twenty-three terminated employees, including Merhulik, were over the age of forty. Plaintiff’s job 

duties were distributed to the remaining employees in the department, who were ages forty-four, 

forty-nine, and fifty.

On November 2, 2017, Weltman posted a job opening for a collector position listed as Job 

Requisition Number 2547 (“First Posting”). Merhulik, then age sixty and no longer employed at 

Weltman, applied by submitting a resume and answering pre-screen questions. Thirty-three 
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applicants responded to the First Posting, but Weltman ultimately withdrew the posting and did 

not hire anyone to fill it. However, Weltman interviewed one candidate and extended that person 

an offer, but it later rescinded the offer and removed the posting after the candidate failed a 

background check.

On January 2, 2018, the firm listed a new posting for a Collections Specialist position 

designated Job Requisition Number 2569 (“Second Posting”). “The entry[-]level collector 

position is one of the lower-level, higher turnover positions, similar to a clerical position.” (Pl.’s 

Resp., R. 41, PageID # 1558). The resume Plaintiff submitted to the First Posting and the Second 

Posting showed she had no work experience between her September 2016 separation from 

Weltman and her January 2018 application. Plaintiff did not receive a phone interview and was 

not selected for the position in the Second Posting. Defendant says that it did not select Merhulik 

for a phone interview after determining that her prior work experience at Weltman showed that 

she was not a good candidate. Ultimately, Weltman hired a different applicant for the Collections 

Specialist position (“chosen candidate”). 

Procedural History

On February 27, 2017, Plaintiff filed suit against Defendant in the Cuyahoga County Court 

of Common Pleas, alleging that Weltman terminated her based on her age when it included her in 

the September 2016 reduction in force. Plaintiff also alleged that Weltman’s reduction in force 

had a disparate impact on older employees. The case proceeded through discovery, but Plaintiff 

dismissed the case without prejudice in October 2018 before the court could rule on Weltman’s 

motion for summary judgment. Plaintiff refiled in October 2019 in the same state court. On 

February 24, 2021, that court entered summary judgment in favor of Defendant on all of Plaintiff’s 
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claims and dismissed the case in its entirety, with prejudice. The Eighth District Court of Appeals 

affirmed that decision. 

On October 28, 2018, Plaintiff filed a charge with the Equal Employment Opportunity 

Commission (“EEOC”) regarding Weltman’s decision not to hire her for the Second Posting. The 

EEOC investigated the allegations of age discrimination and retaliation but dismissed the claims 

on March 3, 2020, concluding:

Evidence reveals that [Merhulik] w[as] not hired for the Collections Specialist position 

because of numerous performance reprimands [Merhulik] received when [she was] 

previously employed by [Weltman] as a Collector. There is insufficient evidence to 

show that [she] w[as] denied because of [her] age or in retaliation for engaging in a 

protected activity.

(EEOC Letter, R. 35-3, PageID # 465).

On May 29, 2020, Plaintiff filed the instant action in federal district court. Merhulik set 

forth a seven-count complaint under the ADEA, Ohio’s state equivalent, and Title VII of the Civil 

Rights Act of 1964. On August 13, 2020, Defendant filed a Rule 12(b)(6) motion to dismiss Count 

Two (unlawful use of hiring criteria in violation of the ADEA); Count Four (unlawful retaliation 

in violation of Title VII, 42 U.S.C. § 2000e-3(a)); and Counts Five and Six (age discrimination 

under Ohio Rev. Code Ann. §§ 4112.02, .99), for failure to state a claim upon which relief can be 

granted. The district court granted this motion in part, dismissing Counts Two, Four, and Six. 

Count Five was left undisturbed and joined the then-unchallenged counts, specifically: Count One 

(disparate treatment age discrimination in violation of the ADEA); Count Three (unlawful 

retaliation in violation of the ADEA); and Count Seven (retaliation under Ohio Rev. Code Ann. 

§§ 4112.02(I), .99).

Defendant Weltman then sought summary judgment to dismiss Plaintiff’s case in full. 

Plaintiff filed an initial response in opposition, accompanied by a motion for additional discovery 
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and a request to file a supplemental response following further discovery. The district court 

ordered limited additional discovery and permitted supplemental briefing. In its review of the 

supplemental response and reply, the district court granted Defendant’s motion for summary 

judgment. Plaintiff’s timely appeal followed.

II. DISCUSSION

A. Standard of Review

We review the district court’s grant of summary judgment de novo. Sloat v. HewlettPackard Enter. Co., 18 F.4th 204, 209 (6th Cir. 2021). Summary judgment is appropriate “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Conversely, “[s]ummary judgment is 

inappropriate when the evidence raises a genuine issue about a material fact, ‘that is, if the evidence 

is such that a reasonable jury could return a verdict for the nonmoving party.’” Wright v. Murray 

Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986)). We “view all evidence in the light most favorable to the nonmoving 

party.” Id. (citing another source). A district court’s decision regarding the scope of discovery is 

reviewed under an abuse of discretion standard. B & H Med., LLC v. ABP Admin., Inc., 526 F.3d 

257, 268 (6th Cir. 2008).

B. Analysis

On appeal, Plaintiff lodges three challenges to the district court’s opinion. She alleges the 

district court erred in failing to find that Weltman’s decision not to hire her as a Collections 

Specialist under the First and Second Job Postings was because of unlawful age discrimination or 

in retaliation for her filing suit in the Court of Common Pleas. She also contends that the district 
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court should have drawn an adverse inference against Defendant Weltman. Each argument is 

reviewed below, seriatim. 

1. Age Discrimination

The ADEA prohibits an employer from “fail[ing] or refus[ing] to hire . . . any individual 

or otherwise discriminat[ing] against any individual . . . because of such individual’s age.” 

29 U.S.C. § 623(a)(1). Section 4112.14(A) of the Ohio Revised Code provides: “No employer 

shall discriminate in any job opening against any applicant . . . aged forty or older who is physically 

able to perform the duties and otherwise meets the established requirements of the job[.]” Age 

discrimination claims under the Ohio statute are assessed under the same standards as federal 

claims brought under the ADEA. Minadeo v. ICI Paints, 398 F.3d 751, 763 (6th Cir. 2005). The 

burden of persuasion is on the plaintiff to show that “age was the ‘but-for’ cause of the employer’s 

adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). 

In Counts One and Five of Plaintiff’s complaint, Merhulik alleges that through its failure 

to hire her, Defendant Weltman discriminated against her based on age in violation of the ADEA 

and Ohio law. Because Merhulik relies on circumstantial evidence, not direct evidence, of age 

discrimination, this Court evaluates her claim under the three-step burden-shifting framework 

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that familiar 

framework, a plaintiff must show that she: (1) was at least forty years old at the time of the alleged 

discrimination; (2) faced an adverse employment action; (3) was otherwise qualified for the 

position; and (4) was refused hire in preference of a significantly younger individual. Grosjean v. 

First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003); McDonnell Douglas, 411 U.S. at 802.

If a plaintiff makes out a prima facie case, the burden shifts to the employer to proffer a 

legitimate, non-discriminatory reason for the adverse employment action. If the employer carries 
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that burden, the burden shifts back to the plaintiff to establish that the employer’s reason was a 

pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). 

To demonstrate pretext, a party must show that the stated reason for the adverse action: (1) had no 

basis in fact; (2) was not the actual reason; or (3) was insufficient to explain it. Imwalle v. Reliance 

Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008). “[A] reason cannot . . . be a pretext for 

discrimination unless it is shown both that the reason was false, and that discrimination was the 

real reason.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (quoting St. 

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Thus, regardless of which rebuttal method 

a plaintiff uses, “[s]he always bears the burden of producing sufficient evidence from which the 

jury could reasonably reject the defendant’s explanation and infer that the defendant intentionally 

discriminated against [her].” Id. (citation and internal quotation marks omitted).

In this case, Plaintiff argues Weltman discriminated against her based on age when it

refused to hire her as a Collections Specialist under the First and Second Job Postings. 

To start, we assess Plaintiff’s arguments related to the First Posting. The district court 

correctly found that Plaintiff could not demonstrate a prima facie case of discrimination in 

connection with her application for this posting. There is no evidence that Merhulik was considered 

for and denied the position or that a substantially younger person was chosen instead. In fact, that 

position went unfilled because Weltman withdrew the job posting. Regardless of why the First 

Posting was pulled, be it because of evolving staffing needs or because the one interviewed 

candidate failed the background check, it makes no difference since the circumstances wholly lack 

anything to support an inference of discrimination. Given that Defendant pulled the job listing, 

Merhulik cannot demonstrate that she was refused hired in preference of a substantially younger 

person, which is the hallmark of ADEA discrimination claims. The district court properly found 
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that Merhulik could not establish a prima facie case of discrimination in connection to Plaintiff’s 

application for the First Posting.

Plaintiff’s assertions concerning the Second Posting fare better at the outset but meet the 

same fate as the foregoing age discrimination claim. Assuming, as the district court did, for 

purposes of argument, that Merhulik established a prima facie case of discrimination, she has not 

shown that Weltman’s stated reason for its failure to hire “was pretext and that age was the real 

reason” for it. Geiger v. Tower Auto., 579 F.3d 614, 626 (6th Cir. 2009). In the hopes of showing 

pretext, Merhulik contends she was more qualified for the position than the chosen candidate, 

thereby supporting an inference of age discrimination. She makes three sub-arguments, all of 

which fail.

For one, to show that a plaintiff is qualified, “[she] must prove that [s]he was performing 

h[er] job at a level which met h[er] employer’s legitimate expectations.” McDonald v. Union Camp 

Corp., 898 F.2d 1155, 1160 (6th Cir. 1990) (internal quotation marks and citation omitted). 

Although Plaintiff goes to great lengths to argue that she met the minimum job requirements of 

the entry-level position, accepting the bare minimum is not the legal standard for pretext. White 

v. Columbus Metro. Hous. Auth., 429 F.3d 232, 245 (6th Cir. 2005) (“[I]t was reasonable for 

CMHA to conclude that while White was minimally qualified, her qualifications did not rise to the 

level of quality . . . for which CMHA was searching[.]”). The record shows that Merhulik received 

five corrective actions for unsatisfactory performance. Periods of improvement were often 

bookended with less-than-satisfactory work. Her time at Weltman fell short of Defendant’s 

objective expectations of her employment, so when Merhulik re-applied years after her separation 

from Weltman, her previous poor performance was not somehow transfigured into sterling 

credentials. See McDonald, 898 F.2d at 1160 (“McDonald was simply not performing to Union 
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Camp’s satisfaction.”). Given her prior performance, Plaintiff has not demonstrated that 

Defendant’s proffered reason for its failure to hire her hid a discriminatory motive.

What is more, Merhulik cannot present any evidence that would gainsay Weltman’s 

contention that the chosen candidate had more recent and relevant experience in collections. The 

chosen candidate had over three years of experience in complex collections, outpacing Merhulik’s 

less complex and more outdated work. Merhulik’s time in collections ended in 2012, whereas the 

chosen candidate had more than three years of recent experience in complex collections. The fact 

that Merhulik had more years of collections experience than the chosen candidate does not require 

submitting her claims to a jury. This Court has long held, “[s]o long as its reasons are not 

discriminatory, an employer is free to choose among qualified candidates[]” when making hiring 

decisions. Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987) (citations omitted).

Merhulik’s last argument concerning the Second Posting is that she was more qualified 

than the chosen candidate because the chosen candidate was subject to a non-compete and had 

previously been terminated for sexual harassment. Yet, as Plaintiff acknowledges, Weltman did 

not know that the chosen candidate had these potentially disqualifying factors in her background 

before hiring her. Weltman has demonstrated that it hired whom it believed to be the best-qualified 

candidate at the time of hiring. Even with a prima facie case supposedly made out, Merhulik is 

unable to prove that Defendant’s articulated, non-discriminatory justification for choosing a 

different candidate was pretextual. In sum, the district court did not err in finding Weltman was 

entitled to judgment in its favor on Plaintiff’s age discrimination claims.

2. Retaliation

The ADEA and Ohio state law prohibit retaliation against private sector employees who 

complain of age discrimination. 29 U.S.C. § 623(d); Ohio Rev. Code Ann. § 4112.01(I). A prima 
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facie case of retaliation under the ADEA and Ohio’s age discrimination statute requires a plaintiff 

to prove: (1) she engaged in a protected activity; (2) the defending party was aware of the activity; 

(3) the defending party took adverse employment action against the employee; and (4) there is a 

causal connection between the protected activity and adverse action. Blizzard v. Marion Tech. 

Coll., 698 F.3d 275, 288 (6th Cir. 2012); Greer-Burger v. Temesi, 879 N.E.2d 174, 180 (Ohio 

2007). As with age discrimination claims, if a plaintiff establishes a prima facie case and the 

employer articulates a legitimate, non-retaliatory reason for the materially adverse action, the 

plaintiff must then show that the employer’s proffered reasons for taking the adverse action were 

a pretext for prohibited retaliatory conduct.

The protected activity in question in Merhulik’s case is the filing of a lawsuit against 

Weltman in state court, which was generally contemporaneous with her application to the Second 

Job Posting. We begin, as the district court did, with the assumption that Plaintiff has shown a 

prima facie case. Although her ability to make out such a prima facie case is doubtful on the 

causation prong, Plaintiff nevertheless would be unable to show that Weltman’s decision not to 

hire her constituted pretextual retaliation. As discussed previously, Defendant demonstrated a 

legitimate, non-retaliatory reason for not hiring Merhulik, namely, her difficulties meeting 

collection goals and her lack of recent collection experience. Merhulik offered no evidence 

demonstrating pretext, let alone that retaliation was the but-for cause of the adverse hiring decision. 

Therefore, the district court did not err in finding that Plaintiff failed to carry her ultimate burden 

of persuasion on the issue of retaliation such that a jury could find in her favor. 

3. Adverse Inference

Finally, Plaintiff submits that the district court should have drawn an adverse inference 

against Weltman for failing to produce all ordered discovery, including: (1) specific interview data 
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for the First and Second Job Posting; (2) interview notes and the complete interview guide for the 

interviewed candidate for the First Posting, and the chosen candidate for the Second Posting; 

(3) identification of the candidates who applied for the First and Second Job Postings; and 

(4) analytics data for the First and Second Job Posting maintained by Indeed.com. The general 

rule is that “[w]here relevant information . . . is in the possession of one party and not provided, 

then an adverse inference may be drawn that such information would be harmful to the party who 

fails to provide it.” McMahan & Co. v. Po Folks, Inc., 206 F.3d 627, 632 (6th Cir. 2000) (internal 

quotation marks and citation omitted).

A review of the parties’ discovery disputes at the district court is helpful in connection with 

Plaintiff’s argument that the district court should have drawn an adverse inference against 

Weltman. After Defendant filed its motion for summary judgment, Plaintiff asked the district 

court to order that Weltman produce additional discovery allegedly needed before Merhulik could 

respond to the defense motion; the district court ordered Merhulik to clarify which items she 

sought, noting “[i]t is unclear . . . whether any necessary discovery remains outstanding,” and “a 

number of items [requested] may or may not exist.” (Order, R. 50, PageID # 2089). Plaintiff then 

filed a list of thirty-six items, and the district court ordered Weltman to provide any responsive 

information within ten days. Defendant did so. For example, Weltman provided the dates on 

which job candidates submitted a resume for the First Posting, the outcome of their application, 

and whether they were interviewed by telephone or in-person. However, Defendant explained that 

several of the requested items were not responsive and thus fell outside of the scope of the district 

court’s order. Other information, such as the Indeed.com analytics, did not exist or was not 

otherwise in Defendant’s possession. 
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This Court now turns to the final question on appeal, i.e., whether the district court should 

have drawn an adverse inference against Defendant for failing to produce necessary discovery. 

The record demonstrates that Defendant complied with its discovery obligations and that an 

adverse inference was not warranted. In the absence of proof that unproduced discovery materials 

were destroyed, spoiled, or withheld in bad faith, Merhulik’s argument that the district court erred 

by failing to draw an adverse inference must be denied. See Akiona v. United States, 938 F.2d 

158, 161 (9th Cir. 1991).

An adverse inference is not warranted for another, more fundamental reason. Such an 

inference is used to forgive a plaintiff’s inability to establish a prima facie case due to a defendant’s 

intransigence. Clay v. United Parcel Serv., 501 F.3d 695, 716 (6th Cir. 2007). Plaintiff has not 

shown that any of the documentation referenced above would create a genuine issue of material 

fact or prove a required element of her claims. Automated Sols. Corp. v. Paragon Data Sys., Inc., 

756 F.3d 504, 514 (6th Cir. 2014) (citation omitted) (“[T]he party seeking an adverse inference 

must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed 

[or unavailable] evidence would have been of the nature alleged by the party affected by its 

destruction.”). In sum, Plaintiff has not shown that Defendant failed to provide responsive 

documentation or that it withheld such information in bad faith. She also has not demonstrated 

that her efforts to establish a prima facie case or issues of material fact were hampered by 

Defendant’s alleged failure to timely and fully produce discovery. Given that the district court 

ordered Defendant to provide additional discovery, coupled with Merhulik’s difficulty on appeal 

identifying what missing evidence is required to make out her claims, the district court did not err 

by failing to draw an adverse inference against Defendant.
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III. CONCLUSION

For the reasons set forth above, this Court AFFIRMS the judgment of the district court.