               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0776n.06

                                            No. 12-4064

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                   Aug 21, 2013
MARY I. MCKINLEY,                              )                               DEBORAH S. HUNT, Clerk
                                               )
       Plaintiff-Appellant,                    )
                                               )          ON APPEAL FROM THE UNITED
v.                                             )          STATES DISTRICT COURT FOR
                                               )          THE SOUTHERN DISTRICT OF
SKYLINE CHILI, INC.,                           )          OHIO
                                               )
       Defendant-Appellee.                     )


       Before: BOGGS and SURHEINRICH, Circuit Judges; MURPHY, District Judge.*

       STEPHEN J. MURPHY, III, District Judge. Mary McKinley filed suit against her former

employer, Skyline Chili, Inc., (“Skyline”), alleging that Skyline discriminated against her on the

basis of her age and gender, and that it terminated her employment in retaliation for complaining

about this discrimination. She sought relief under the Age Discrimination in Employment Act of

1967, 29 U.S.C. § 623(a) (“ADEA”), Ohio Revised Code Chapter 4112, O.R.C. § 4112, and Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). The district court

granted Skyline’s motion for summary judgment, finding that McKinley could not establish a prima

facie case of retaliation under the ADEA or Title VII and could not establish that Skyline’s proffered

reason for her termination was pretext for unlawful discrimination. McKinley appeals this decision.

       The Equal Employment Opportunity Commission (“EEOC”) filed an amicus curiae brief

in support of McKinley. It argues that the district court erred when it held that McKinley’s complaint

       *
       The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
to her human-resources manager regarding disparate discipline based on her age and gender was not

sufficiently specific to constitute protected activity, and when it found that McKinley failed to create

a triable issue of pretext. Because we find that McKinley failed to establish that Skyline’s proffered

reason for her termination was pretext for unlawful discrimination, we AFFIRM.

                                                   I.

       McKinley, a female born in 1954, began working for Skyline as a district manager in 2006.

After receiving positive performance reviews, she was promoted in March 2008 to the position of

market manager for the Cincinnati market. During her tenure with Skyline, McKinley reported to

Senior Vice-President of Restaurant Operations, Deborah Chitwood, a female born in 1957.

McKinley does not complain of any wrongful treatment by her employer prior to her promotion. But

after her promotion, Chitwood began finding deficiencies in McKinley’s work. For example, in

November 2008, Chitwood gave McKinley a performance evaluation that recognized several positive

areas but also noted areas needing improvement. Areas needing improvement included the number

of customer complaints from McKinley’s stores, McKinley’s slow response time to these complaints,

and McKinley’s communication with store managers. Chitwood again raised concerns regarding

timely responses to customer complaints in an April 24, 2009 e-mail. Then, in McKinley’s December

2009 performance evaluation, Chitwood noted that McKinley “struggled in her leadership

effectiveness” as the Cincinnati market manager. On May 12, 2010, Chitwood forwarded a customer

complaint email to McKinley and stated her concerns regarding continued customer complaints and

low satisfaction scores at one of McKinley’s stores. Chitwood forwarded this communication to Shari

Bleuer, Director of Human Resources, to place in McKinley’s personnel file. Additionally, on May

11, 2010, Shauna Webster, Skyline’s senior financial analyst, advised Chitwood that McKinley had


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not submitted timely quarterly audit reports for three of her direct-report stores. After these incidents,

McKinley met with Chitwood and Bleuer on May 25, 2010, and Chitwood gave McKinley a letter

outlining deficiencies in her performance. These deficiencies included her inability to successfully

partner with the management team at one of her stores, lack of professionalism, lack of

responsiveness to customer complaints, and poor financial results.

        McKinley disputes that there were any deficiencies in her work or store performance.

According to McKinley, Chitwood had a plan “to place male and significantly younger individuals

in the higher level management positions in the Cincinnati market.” To further this plan, she hired

Mario Nocero as a district manager in Cincinnati and sought to place Jay Swallow in the Director of

Operations position over the Cincinnati and Dayton markets. Swallow and Nocero are both males

who are significantly younger than McKinley. McKinley contends that it is because of this plan that

“Chitwood trumped up a number of false and/or silly performance issues and presented them in

writing to McKinley on May 25, 2010.”

        McKinley complained to Bleuer after the May 25th meeting that “she was the only person

being held accountable for customer complaints and her counterparts, all of whom were significantly

younger, and some of whom were male, were not being held accountable.” She claims she went to

Bleuer again a few days later and Bleuer told her not to complain about Chitwood. McKinley further

claims that on September 2, 2010, as part of the plan to promote younger males, Chitwood informed

McKinley that she was being demoted to a district manager position and that Nocero would be

promoted to her market manager position. The plan was “partially foiled,” according to McKinley,

because Nocero resigned the following day. Chitwood denies telling McKinley she would be

demoted.


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       In November 2010, Swallow was promoted to Director of Operations of the Cincinnati and

Dayton markets. McKinley submits this was also part of Skyline’s discriminatory plan because her

stores were more profitable and because everyone in management who worked with her believed she

was more qualified than Swallow for the position. Around this same time, a Skyline employee, Robert

Oehler, complained to Swallow and Bleuer about McKinley’s handling of his promotion from shift

manager to an assistant general manager position. He was upset that his promotion had been delayed

and that, although McKinley had allegedly promised him a salary in the $32,000 to $35,000 range,

his actual promotion salary was only $27,000. Skyline submits that this employee complaint coupled

with McKinley’s prior and ongoing performance issues, caused Chitwood to terminate McKinley’s

employment with Skyline on December 1, 2010. McKinley denies she had any performance

deficiencies and argues that the real reason Skyline terminated her employment was because she is

an older female and Skyline wanted to replace her with a younger male. She filed suit in the Southern

District of Ohio July 21, 2011. The district court was unpersuaded by her arguments and entered

judgment in favor of Skyline on August 14, 2010.

                                                  II.

       We review the district court’s grant of summary judgment de novo. Holloway v. Brush, 220

F.3d 767, 772 (6th Cir. 2000) (en banc). Summary judgment is proper when there are no genuine

issues of material fact in dispute and the movant is entitled to judgment as a matter of law. Singfield

v. Akron Metro. Hous. Auth., 389 F.3d 555, 560 (6th Cir. 2004). The court must view the facts and

draw all reasonable inferences in the light most favorable to the non-moving party. 60 Ivy St. Corp.

v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987).




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                                                   III.

                                                   A.

        McKinley brings her age and sex discrimination claims under both Ohio state and federal law.

Her state claims are analyzed under the same framework as her federal claims. See Blizzard v. Marion

Technical Coll., 698 F.3d 275, 283 (6th Cir. 2012) (“Age discrimination claims brought under the

Ohio statute are ‘analyzed under the same standards as federal claims brought under the [ADEA].’”)

(alteration in original; citation omitted); see also Shoemaker-Stephen v. Montgomery Cnty. Bd. of

Comm’rs, 262 F. Supp. 2d 866, 874 (S.D. Ohio 2003) (“Title VII prohibits an employer from

discriminating against an employee, with respect to the terms, conditions, and privileges of one’s

employment, on the basis of sex. Ohio Rev. Code § 4112.02(A) prohibits the same conduct as a

matter of State law, and is generally construed in identical fashion to Title VII.”) (citations omitted).

        The ADEA prohibits employers from discharging employees forty years of age or older on

the basis of age. See 29 U.S.C. § 623(a). An employee claiming to have suffered unlawful age

discrimination may establish a claim by offering either direct or circumstantial evidence. Kline v.

Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). McKinley does not offer any direct evidence

of discrimination. When a plaintiff seeks to establish an age discrimination case using circumstantial

evidence, the McDonnell Douglas burden shifting framework applies. Id. This requires a plaintiff to

“show that 1) she was a member of the protected class, 2) she was subject to an adverse employment

action, 3) she was qualified for the position, and 4) she was replaced by someone outside the

protected class.” Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008)

(citing Kline, 128 F.3d at 349). If the plaintiff establishes a prima facie case, the burden shifts to the

defendant to articulate a legitimate nondiscriminatory reason for its adverse business decision. Id.


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If it does so, the burden shifts back to the plaintiff to demonstrate the reasons given were mere

pretext. Id. at 410-11.

        The district court found that McKinley established a prima facie case of age discrimination

under the McDonnell Douglas framework. It then found that Skyline had produced a legitimate

business reason for terminating McKinley: “her supervisor, Ms. Chitwood, lost confidence in

Plaintiff’s leadership abilities because, inter alia, her stores suffered loss of sales and profitability,

Plaintiff consistently failed to timely follow up on customer complaints, she exhibited a lack of

responsiveness to accounting, and she failed to timely file financial documents.” Because Skyline

carried its burden of producing a legitimate business reason for its decision to terminate McKinley,

the district court recognized that the burden shifted back to McKinley to “proffer evidence sufficient

for a reasonable jury to find, by a preponderance of the evidence, that Defendant’s reasons for her

termination were mere pretext and that, but for her age, Plaintiff would not have been terminated.”

The district court found that McKinley failed to establish pretext and, therefore, it entered judgment

in Skyline’s favor. McKinley challenges this finding.

                                                   B.

        A plaintiff can demonstrate that an employer’s proffered reasons are pretext for unlawful

discrimination by showing that the reasons (1) had no basis in fact; (2) did not actually motivate the

adverse employment action; or (3) were insufficient to motivate the employment action. Manzer v.

Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994), overruled on other grounds by

Geiger v. Tower Auto., 579 F.3d 614 (6th Cir. 2009). The third showing “ordinarily, consists of

evidence that other employees, particularly employees not in the protected class, were not fired even



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though they engaged in substantially identical conduct to that which the employer contends motivated

its discharge of the plaintiff.” Id. To demonstrate that Skyline’s proffered reasons had no basis in fact

and were insufficient to motivate her termination, McKinley offered the testimony of district

managers who worked with her, Heather Pressler, Mario Nocero, and Angela Hornsby, that she was

better qualified than Jay Swallow for the Director of Operations position and was more qualified than

Nocero for the market-manager position.

        At the summary-judgment stage, a plaintiff must produce sufficient evidence from which a

jury could reasonably reject the employer’s explanation for its adverse employment decision. Chen

v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009). The district court found that this opinion

testimony was insufficient to show pretext, noting that it was essentially speculation and lacked

specific facts regarding Swallow’s performance, including whether any of the testifying individuals

had the opportunity to observe him or had any personal knowledge regarding his conduct or

qualifications. McKinley and the EEOC argue that this finding was error. They point to Pressler’s

deposition testimony in particular because they claim she had personal knowledge regarding

McKinley’s job performance relative to other managers’. But Pressler only gave her general opinion

that McKinley was a high performer based on her “care for her people, and financial results.” She

admitted that she could not give any specifics without consulting financial records. McKinley also

suggests the performance issues addressed in the May 25, 2010 letter were resolved prior to her

termination, but Bleuer testified to the contrary. When McKinley’s counsel asked whether any of the

issues in the letter were resolved, Bleuer responded that she did not believe they were resolved and

that there were still “ongoing issues.”



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       The district court correctly observed that the existence of differing opinions regarding the

sufficiency of McKinley’s performance does not create a genuine issue of material fact as to whether

Skyline’s stated reasons for terminating her employment masked impermissible discrimination.

Rather, to defeat summary judgment, McKinley was required to “put forth evidence which

demonstrates that [defendant] did not ‘honestly believe’ in the proffered non-discriminatory

reason[s]” given for terminating her employment. Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th

Cir. 2001). McKinley failed to do so.

       As to Swallow, the district court found that McKinley failed to show that he was similarly

situated to her because she did not present any evidence showing that he engaged in the same conduct

but was treated differently. Specifically, the district court found that McKinley did not produce

evidence regarding any performance deficiencies on the part of Swallow or evidence that any

difference in Skyline’s treatment of these two individuals was the result of “anything other than a

business decision based on months and years of job performance.”

       As to Nocero, the district court found that he was not similarly situated because he was a

district manager and had different duties, pay, and bonus potential than McKinley had as a market

manager. A plaintiff “[is] not required to demonstrate an exact correlation between himself and others

similarly situated; rather, he ha[s] to show only that he and his proposed comparators were similar

in all relevant respects and that he and his proposed comparators engaged in acts of comparable

seriousness.” Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012) (citation omitted).

But even if Nocero could be considered comparable based on his job functions, McKinley has failed

to show that either Nocero or Swallow engaged in acts of comparable seriousness and were not



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terminated. Because McKinley did not present evidence that would allow a reasonable jury to

conclude that Skyline’s stated reasons for her termination were pretext for unlawful discrimination,

judgment was appropriately entered in Skyline’s favor.

                                                   C.

        McKinley does not offer any direct evidence of retaliation. When a plaintiff presents only

circumstantial evidence of retaliation, her claims are examined under the same McDonnell Douglas

framework used to examine discrimination claims. Spengler v. Worthington Cylinders, 615 F.3d 481,

491 (6th Cir. 2010) (citing Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008)).

        To establish a prima facie case of retaliation, a plaintiff must show that she (1) engaged in a

protected activity; (2) the defendant knew plaintiff exercised this protected right; (3) the defendant

took an adverse employment action against the plaintiff; and (4) a causal connection exists between

the protected activity and the adverse employment action. Id. at 491-92 (citing Fox v. Eagle Distrib.

Co., 510 F.3d 587, 591 (6th Cir. 2007)). Just as with her discrimination claims, if McKinley

establishes a prima facie case of retaliation,“the burden of production shifts to Defendant to ‘articulate

some legitimate, nondiscriminatory reason for [its action].’ ” Id. at 492 (quoting McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). If Skyline succeeds in doing so, the burden shifts back

to McKinley to show the stated reasons were not the true reasons for her termination, but were pretext

intended to mask retaliation. Id.

        Plaintiff claims she engaged in a protected activity when, after receiving her May 25, 2010

letter from Chitwood outlining her performance deficiencies, she told Bleuer that she felt

discriminated against and that “she was the only person being held accountable for customer



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complaints and her counterparts, all of whom were significantly younger, and some of whom were

male, were not being held accountable.” The district court, relying on Booker v. Brown & Williamson

Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989), found that McKinley’s complaint to Bleuer was

too vague to constitute opposition and could not, therefore, be considered protected activity. In

Booker, the court reviewed whether a letter the plaintiff sent to his employer’s human-resources

officer constituted a charge or complaint under Michigan’s Elliott-Larsen Act, which tracks Title VII

and is construed in the same manner. Booker, 879 F.2d at 1312. It found that the letter was not

protected opposition to violation of the anti-discrimination laws because plaintiff “was not contesting

any unlawful employment practice; he was contesting the correctness of a decision by his employer”

and only generally alleged that the charges against him were the result of “ethnocism.” Id. at 1313.

The court held that “a vague charge of discrimination in an internal letter or memorandum is

insufficient to constitute opposition to an unlawful employment practice.” Id.

        The EEOC and McKinley claim the district court erred when it determined her comments to

Bleuer were too generalized to constitute a protected complaint of age and gender discrimination. The

EEOC compares McKinley’s complaint to Bleuer to the oral complaint the court deemed protected

opposition in Blizzard, 698 F.3d at 288-89, and differentiates it from the complaint found insufficient

in Booker. In Blizzard, the court held that a plaintiff’s complaint that she was “treated differently than

younger employees” distinguished her communication with her employer from other oral complaints

and constituted protected activity. Blizzard, 698 F.3d at 288-89. Viewing the evidence in the light

most favorable to McKinley, her comment that she was being treated differently than her younger

and/or male co-workers could qualify as protected activity. But even assuming the district court erred

in reaching the opposite conclusion, reversal is not required because the district court held that, even

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if McKinley’s complaint was a protected activity and she had established a causal connection between

that complaint and her termination, her retaliation claims would still fail for the same reason her age

and sex discrimination claims fail — she did not show that Defendant’s reasons for her termination

were pretexual. This is correct. Because, as we concluded above, McKinley failed to show that

Skyline’s proffered reasons for her termination were pretextual, McKinley cannot show that she was

actually terminated in retaliation for the complaint she made to Bleuer six months prior to her

discharge.

       The EEOC submits that there is evidence of retaliatory animus on the part of Skyline which

is sufficient to establish causation and constitutes evidence of pretext. This evidence is McKinley’s

testimony that “Bleuer told her ‘it wasn’t a good idea to go up against Debi Chitwood’ because it

could cost McKinley her job.” But McKinley failed to show that Chitwood ever learned of her

comments to Bleuer so that the comments could have formed the basis for Chitwood’s decision to

terminate her.

       Additionally, the EEOC argues that McKinley’s claims were inappropriate for summary

judgment because evidence “of a specific plan in place to promote Nocero to manage the Cincinnati

territory by late 2010 and his hire before or around December 2009 (without McKinley’s knowledge

or approval) — would permit a jury to find Skyline’s reliance on performance problems documented

only after Nocero’s hire plainly suspect.” But this speculation falls short of demonstrating pretext.

It does not suggest that the reasons given for McKinley’s termination had no basis in fact or were

insufficient to motivate the decision. Thus, McKinley has failed to show the district court erred when

it granted Skyline summary judgement on her retaliation claims.

       For the foregoing reasons, the district court’s judgment is AFFIRMED.

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