                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 12a0604n.06

                                         No. 10-5846

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED
PAULA B. BROWN,                                )                                Jun 12, 2012
                                               )                          LEONARD GREEN, Clerk
       Plaintiff-Appellant,                    )
                                               )
v.                                             )    ON APPEAL FROM THE UNITED
                                               )    STATES DISTRICT COURT FOR THE
LEXINGTON-FAYETTE URBAN                        )    EASTERN DISTRICT OF KENTUCKY
COUNTY GOVERNMENT, et al.,                     )
                                               )
       Defendants-Appellees.                   )




       Before: DAUGHTREY, MOORE, and McKEAGUE, Circuit Judges.


       Martha Craig Daughtrey, Circuit Judge.        Plaintiff Paula Brown appeals from the

district court’s order of summary judgment entered in favor of the defendants in this

employment discrimination suit, charging retaliation under Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 2000e - 2000e-17, and the intentional infliction of

emotional distress under state law. The district court held that Brown had failed to

establish a prima facie case under Title VII and the elements of Kentucky’s applicable tort

law. Although the record before us suggests that the merits of the plaintiff’s retaliation claim

are – at best – tenuous, we have no doubt that she was able to establish the easily-met

burden of a prima facie case and that, as a result, the district court’s ruling on that issue

cannot be upheld. Indeed, this record illustrates the inherent risk in limiting analysis to the
No. 10-5846
Brown v. Lexington-Fayette County, et al.

prima facie stage of Title VII litigation. It thus becomes necessary to reverse summary

judgment on that portion of Brown’s retaliation cause of action that focuses upon her

suspension and referral for psychological evaluation and remand that matter to the district

court. However, because the plaintiff failed to allege the sort of outrageous conduct on the

part of the individual defendants that is necessary to support a claim of intentional infliction

of emotional distress, we affirm that portion of the district court’s judgment.


                     FACTUAL AND PROCEDURAL BACKGROUND


        At all times relevant to this litigation, Paula Brown, an African-American woman,

was employed by the Lexington-Fayette Urban County Government, having been initially

hired in 2001. By May 2005, she had been given a raise and promoted to the position of

“staff assistant senior” in the Division of Building Inspection. In that position, Brown was

charged with the responsibility of “provid[ing] timely professional service to customers

purchasing Electrical and Mechanical Permits,” “follow[ing] the required policies and

procedures in obtaining approval for leave,” “tak[ing] and follow[ing] directives from

supervisor(s) and management,” and “perform[ing] all the assigned job duties of the

Electrical/Mechanical Section Staff Assistant Sr. in a timely and efficient manner according

to established policies, procedures and standards.”


       Brown alleged that, throughout her tenure with the division, she experienced

problems with unequal or unreasonable distribution of assigned tasks and with unequal

application of established disciplinary procedures. What is clear from the appellate record,

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however, is the fact that Brown also had an employment history of hostile confrontations

with her co-workers and supervisors. For example, in November 2004, the Division of

Human Resources filed a complaint against the plaintiff for threatening another employee.

Additionally, in April 2006, “[a]n antagonistic conversation was initiated by [Brown] in front

of several employees regarding secretary’s day,” and in June 2006, the plaintiff was given

an oral warning after she admitted initiating a verbal confrontation with a co-worker in front

of others.


       On the other hand, while serving under the supervision of defendants Dewey Crowe,

George Dillon, and Stephanie Northington, Brown complained to an employee-assistance

program specialist about “[b]ullying behavior, including aggression and intimidation, on the

part of her supervisors” and “[w]orkplace retaliation by her supervisors.” Specifically,

Brown alleged that in January 2007, Northington, the plaintiff’s immediate supervisor,

shook a pencil in Brown’s face while yelling at her menacingly. On another occasion,

“Northington confined her in a storage closet by physically blocking the door, while shouting

a stream of demands for compliance with her authority.” According to a co-worker, in the

summer of 2007, when Brown was confined to a wheelchair after an injury, Dillon

instructed the co-worker “not to assist Plaintiff in any way, no matter what . . . [and] stated

that they would not make accommodations for [Brown].”


       In 2008, Brown continued to complain about harassing treatment. In March, for

instance, she claimed to "have been subjected to different terms and conditions of


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Brown v. Lexington-Fayette County, et al.

employment in that [she was] required to put [her] vines inside [her] cubicle and take down

[her] personal signs [she] displayed." That same month, she fell from a rolling step stool

while standing on it "to adjust her screen over her workspace" and hit her back on her

desk. Even though rules and regulations of the Kentucky Occupational Safety and Health

Program required that all such workplace injuries be recorded on "an OSHA 300 log," the

defendants failed to include Brown's injury in the government's report. The plaintiff thus

filled out an employee grievance form in which she sought to hold defendants Bryant,

Dillon, and Crowe "accountable for Unethical behavior of falsifying, signing & filing this

Legal Document without allowing [her] the opportunity to have any input on it or to even

review it for accuracy."


       In early April 2008, Brown filed charges with the Equal Employment Opportunity

Commission (EEOC) and with the Lexington-Fayette Urban County Human Rights

Commission, claiming discrimination based upon her race and sex. In part, those charges

claimed that Brown had not been promoted to the position of team leader in June 2007,

and, in part, complained of disparate treatment in being required to keep the vines of her

plants within her own cubicle and in being required to remove “personal signs” displayed

within her workspace.


       Tensions between Brown and Dewey Crowe, the division director, reached a head

on May 1, 2008, when, according to Crowe:




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       The Plaintiff was given clear instructions to assist a customer and to
       complete the [heating, ventilation, and air conditioning] permits for which the
       customer was waiting. The Plaintiff left the customer unattended at the
       counter, left her workstation, and engaged in a verbal confrontation with
       [Crowe]. [Crowe] informed the Plaintiff to return to her workstation, and
       complete the work for the waiting customer, but instead the Plaintiff left the
       premises . . . . Other employees finished the customer’s request and they
       also completed several unfinished permits that the Plaintiff was previously
       instructed to complete.


Brown disputes Crowe’s version of the events of that day, however. In a filing in the district

court, she set out her version of the incident:


       In her attempt to more quickly complete at least ten forms, she asked a co-
       worker (who was sitting idly, waiting for the phones to ring), to number the
       forms while she continued to fill in the contents. Crowe began smacking his
       fist and shouting, “I told you to stop asking other people to do your work for
       you.”


       In any event, following the incident Brown lodged a grievance against Crowe and

was placed on a 30-day administrative leave, apparently with full pay. Upon returning from

that leave, however, Crowe suspended Brown for 40 hours, without pay, as a result of the

alleged insubordination demonstrated during the May 1 incident.


       Furthermore, about the time of the altercation with Crowe, the plaintiff requested a

transfer to another department within the government. The request was denied, and

Brown was told that her options included returning to her existing job or resigning. Brown

allegedly responded, “I won’t resign my job. I’ll keep on working even if the stress you all

are putting me under kills me.” Interpreting that remark as an expression of suicidal


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Brown v. Lexington-Fayette County, et al.

ideation, the defendant government initiated a mandatory referral of the plaintiff to the

employee assistance program. Even though the psychologists and psychiatrists who

evaluated Brown beginning on July 7, 2008, concurred that the statement made by the

plaintiff had been taken out of context and did not necessarily indicate Brown’s intent to

harm herself, Brown was not released for a return to work until August 18, 2008 and was

not permitted to return until October 13, 2008. During the period of evaluation, moreover,

Brown received no pay until her lawyer became involved in the situation and secured for

the plaintiff back pay covering the time she was undergoing counseling. While participating

in the counseling sessions, Brown filed a second EEOC complaint, this one “charging her

employer with retaliation for having filed the April 2008 EEOC discrimination complaint.”

The EEOC issued Brown a right-to-sue letter on September 19, 2008.


       Even after the plaintiff returned to work, she continued to complain that she was

treated differently from other employees. Her supervisors countered by claiming that

Brown’s insubordination and inefficiency interfered with her job performance. They also

denied under oath that they had retaliated against Brown for filing various complaints.

Finally, Brown was suspended from employment on December 31, 2008, pending a

hearing before the Civil Service Commission, a hearing that resulted in termination of the

plaintiff’s employment effective May 7, 2009.


       In the meantime, Brown filed this lawsuit in federal court, initially seeking a

preliminary injunction restoring her to her position within the Lexington-Fayette County


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Brown v. Lexington-Fayette County, et al.

Urban Government. The district court denied the request for injunctive relief and further

ordered the plaintiff to show cause why her complaint should not be dismissed for failure

to identify a theory upon which her case could be based. In an effort to comply with that

request, Brown filed an amended complaint adding additional causes of action. The

defendants responded with a motion for summary judgment, which the district court

granted in part, reserving only Brown’s claim against the government for retaliation and the

claim against the individual defendants for intentional infliction of emotional distress.

Eventually, the district judge concluded that the plaintiff had failed to raise a genuine issue

of material fact regarding a causal connection between her protected activity and any

adverse employment action by the defendant employer, and dismissed the retaliation

action. The district court also held that the plaintiff had failed to meet the standard for

maintaining a tort action under state law and dismissed the claim for intentional infliction

of emotional distress. Following the district court’s denial of Brown’s motion to alter or

amend the judgment, the plaintiff filed this appeal. Although the notice of appeal purports

to contest the district court’s initial grant of partial summary judgment to the defendants,

the subsequent order dismissing the remaining claims, and the denial of the motion to alter

or amend, Brown’s briefs on appeal challenge only the dismissal of the retaliation and

intentional-infliction-of-emotional-distress claims.




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Brown v. Lexington-Fayette County, et al.

                                         DISCUSSION


Standard of Review


       We review de novo the grant of summary judgment by a district court. See Ciminillo

v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment should be granted “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). A genuine issue of

material fact exists only when, assuming the truth of the non-moving party’s evidence and

construing all inferences from that evidence in the light most favorable to the non-moving

party, there is sufficient evidence for a trier of fact to find for that party. A non-moving party

cannot withstand summary judgment, however, by introduction of a “mere scintilla” of

evidence in its favor. See Ciminillo, 434 F.3d at 464.


Retaliation Claim


       Brown contends that the district court should not have granted summary judgment

to Lexington-Fayette County on her claim of retaliation because she adduced sufficient

evidence to raise at least a factual dispute that would preclude a finding in the

government’s favor. Lexington-Fayette County, on the other hand, insists that the district

court correctly concluded that Brown failed to establish that she suffered an adverse

employment action and that, even if she had, that adverse action was not related to the

exercise of any protected activity.


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Brown v. Lexington-Fayette County, et al.

       In order to establish a prima facie case of retaliation under Title VII, a plaintiff must

demonstrate that:


       (1) [s]he engaged in activity protected by Title VII; (2) this exercise of
       protected rights was known to the defendant; (3) the defendant thereafter
       took a materially adverse action against the plaintiff or subjected the plaintiff
       to severe and pervasive retaliatory harassment; and (4) there was a causal
       connection between the protected activity and the materially adverse action.


Lindsay v. Yates, 578 F.3d 407, 418 (6th Cir. 2009). In this case, Lexington-Fayette

County does not contest the fact that Brown’s filing of charges with the Kentucky

Occupational Safety and Health Program and with the EEOC constituted protected activity.

Additionally, the defendant does not dispute that it was aware of the existence of those

filings. As indicated above, however, Lexington-Fayette County does maintain that Brown

suffered no adverse employment action and that the plaintiff has established no causal

connection between any such adverse action and the filing of her administrative

complaints.


       At the prima facie stage of the litigation, however, the burden upon the plaintiff is

minimal. See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997). “[I]t ‘is

a burden easily met,’” Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987), and “is not

onerous.” Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 377 (6th Cir. 1984). “All

that is required of plaintiff at the prima facie stage is to demonstrate that [s]he has a case,

that the evidence is on h[er] side.” Avery Dennison Corp., 104 F.3d at 861. Furthermore,



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Brown v. Lexington-Fayette County, et al.

in conjunction with the standards for review of summary judgments, we must view all

evidence in the light most favorable to the non-moving party – here, the plaintiff.


       In this appeal, Brown asserts that her EEOC complaints filed in April 2008 and in

July 2008, as well as her complaint to the Kentucky Occupational Safety and Health

Program in June 2008, led Lexington-Fayette County to retaliate against her by suspending

her without pay in June and in July through October of 2008 for psychiatric evaluations,

and by eventually terminating her employment on December 31, 2008. Neither party

disputes that termination of employment is an adverse action that satisfies the third prong

of the prima facie analysis applicable to a Title VII retaliation case. Lexington-Fayette

County nevertheless attacks the plaintiff’s retaliation claim by contending that the July-

through-October suspension cannot be considered an adverse employment action

because, even though the suspension was initially without pay, the employer later paid

Brown the salary she had not received during the suspension.              According to the

defendant’s argument, therefore, because the plaintiff was eventually made whole

financially, no adverse employment action occurred.


       But, in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006),

the United States Supreme Court rejected just such an argument. In that case, the plaintiff

was placed on involuntary leave status without pay for 37 days but later received back pay

for that period of time. Faced with an argument that such restitution negated the possibility

that the plaintiff could establish an adverse employment action, the Court found to the


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Brown v. Lexington-Fayette County, et al.

contrary, determining that “an indefinite suspension without pay could well act as a

deterrent [to protected activity], even if the suspended employee eventually received

backpay.” Id. at 73. Without question, therefore, plaintiff Brown has, in this case, also

satisfied the “easily met” burden of demonstrating an adverse employment action, both in

regard to her suspension without pay for psychological evaluation and in regard to her

termination from employment.


       The question remains whether Brown has also satisfied the fourth prong of the

prima-facie-case analysis by demonstrating a causal connection between her EEOC and

Occupational Health and Safety filings and her suspension and termination. As this court

has previously noted:


       Causation can be proven indirectly through circumstantial evidence such as
       suspicious timing. Specifically, this Court has found that temporal proximity
       between an assertion of Title VII rights and a materially adverse action, is
       sufficient to establish the causal connection element of a retaliation claim
       “[w]here an adverse employment action occurs very close in time after an
       employer learns of a protected activity.” Where the nexus is not “very close,”
       we have declined to find a causal connection based on timing alone.


Lindsay, 578 F.3d at 418-19 (citations and parenthetical explanations omitted).


       In this case, Brown filed her various administrative charges against Lexington-

Fayette County in April, June, and July of 2008. Her December 2008 termination thus did

not occur until between five and eight months after the protected activities. Given the

passage of that period of time, as well as the absence of other record evidence that the


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Brown v. Lexington-Fayette County, et al.

termination flowed from the filings with the EEOC and Occupational Safety and Health

Program, the plaintiff has failed to establish or even to imply any causal connection

between the protected activities and her ultimate termination.


       Less than one month after the April EEOC filing, however, the plaintiff was placed

on a 30-day administrative leave, with pay, after the confrontation with Dewey Crowe, and

was then reinstated, only to be suspended for 40 hours without pay, reinstated again, and

promptly referred for psychological counseling for all or part of the next three months.

Although the defendant argues that the administrative leave, the 40-hour suspension, and

the psychological referral stemmed from an alleged act of insubordination and from the

plaintiff’s reaction to it, Brown counters that Crowe’s reaction to an innocent request for

assistance prompted the “confrontation” and was an indication of his desire to “get” her,

presumably because of her exercise of protected activities. Consequently, viewing the

evidence in the light most favorable to the plaintiff, as we are required to do at this juncture

in the litigation, we must conclude that the information before the district court arguably

supports the inference that Brown’s supervisor treated her with exceptional harshness

shortly after the initial EEOC filing. The self-serving denial by Lexington-Fayette County

and the claim that any discipline was meted out only for insubordination do not establish

that the defense version of the events is necessarily accurate.             Instead, Brown’s

presentation of affidavits and other evidence that Crowe, Dillon, and Northington were “out

to get” her and that they warned other employees not to associate or assist the plaintiff



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Brown v. Lexington-Fayette County, et al.

creates at least a dispute of fact regarding the motivation of the individual defendants in

disciplining the plaintiff and temporarily depriving her of pay.


       Similarly, Brown has adduced evidence that, upon her return to work in October

after the conclusion of the psychological evaluation period, an unmanageable workload

was placed upon her in order to ensure that she could not accomplish the tasks set out for

her. Brown alleged that she was ordered to complete her regular work and all the work that

had backlogged during her absence, and that she was expected to finish it without

assistance and without utilizing overtime. The unreasonableness of that demand was

brought to light in the sworn affidavit of Christine Wu, a colleague of the plaintiff, who

related that “[f]or the first two weeks after [the plaintiff] was fired . . ., her workload was

divided between two full time and three part time employees. The third week after Paula

Brown stopped working . . . , Paula’s workload was divided between three full time

employees.”


       Without question, the defendant has offered legitimate explanations for the

treatment of the plaintiff that have no relation whatsoever to her filing of the EEOC and

Occupational Safety and Health complaints. A plaintiff’s burden in establishing a prima

facie case of Title VII retaliation “is not onerous,” however. Thus, the fact that Brown has

adduced contrary evidence suggesting a possibly improper motive for the suspension and

initially-unpaid psychological referral is sufficient to undermine the district court’s summary

judgment ruling premised upon a failure to establish a prima facie case.


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Brown v. Lexington-Fayette County, et al.

Intentional Infliction of Emotional Distress Claim


       In her second issue on appeal, Brown contends that she also put forth sufficient

evidence to create a dispute of material fact and thus preclude summary judgment for the

individual defendants on the plaintiff’s state-law claim of intentional infliction of emotional

distress. The plaintiff’s burden of establishing a prima facie case of such a tort is, however,

extremely difficult. Kentucky courts have instructed that, in order for a plaintiff to recover

for the intentional infliction of emotional distress, she must show that: “(1) the wrongdoer’s

conduct was intentional or reckless, (2) the wrongdoer’s conduct was outrageous and

intolerable, (3) there is a causal connection between the conduct and the emotional

distress, and (4) the emotional distress suffered is severe.” Benningfield v. Pettit Envtl.,

Inc., 183 S.W.3d 567, 572 (Ky. Ct. App. 2005) (citation omitted).


       “[N]ot every upset plaintiff can recover for emotional distress,” however. First and

Farmer’s Bank of Somerset, Inc. v. Henderson, 763 S.W.2d 137, 143 (Ky. Ct. App. 1988).

Rather, Kentucky courts have looked to the commentary to section 46 of the Restatement

(Second) of Torts for guidance in defining the type of acts that will justify tort recovery.

That commentary provides:


       The cases thus far decided have found liability only where the defendant’s
       conduct has been extreme and outrageous. It has not been enough that the
       defendant has acted with an intent which is tortious or even criminal, or that
       he has intended to inflict emotional distress, or even that his conduct has
       been characterized by “malice,” or a degree of aggravation which would
       entitle the plaintiff to punitive damages for another tort. Liability has been


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Brown v. Lexington-Fayette County, et al.

       found only where the conduct has been so outrageous in character, and so
       extreme in degree, as to go beyond all bounds of decency, and to be
       regarded as atrocious, and utterly intolerable in a civilized community.
       Generally, the case is one in which the recitation of the facts to an average
       member of the community would arouse his resentment against the actor,
       and lead him to exclaim, “Outrageous!”


Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 789 (Ky. 2004) (citing Restatement

(Second) of Torts § 46(1) cmt. d (1965)). Thus, Kentucky courts have allowed recovery

for intentional infliction of emotional distress in instances in which a defendant:


       (1) harassed the plaintiff “by keeping her under surveillance at work and
       home, telling her over the CB radio that he would put her husband in jail and
       driving so as to force her vehicle into an opposing lane of traffic”; (2)
       intentionally failed to warn the plaintiff for a period of five months that
       defendant’s building, in which plaintiff was engaged in the removal of pipes
       and ducts, contained asbestos; (3) engaged in “a plan of attempted fraud,
       deceit, slander, and interference with contractual rights, all carefully
       orchestrated in an attempt to bring [plaintiff] to his knees”; (4) committed
       same-sex sexual harassment in the form of “frequent incidents of lewd name
       calling coupled with multiple unsolicited and unwanted requests for
       homosexual sex”; (5) was a Catholic priest who “used his relationship [as
       marriage counselor for] the [plaintiff] husband and the wife to obtain a sexual
       affair with the wife”; (6) agreed to care for plaintiff’s long-time companion-
       animals, two registered Appaloosa horses, and then immediately sold them
       for slaughter; and (7) subjected plaintiff to nearly daily racial indignities for
       approximately seven years.


Stringer, 151 S.W.3d at 789-90 (footnotes and citations omitted).


       Under this strict standard, “[m]ere termination clearly does not rise to the level of

outrageous conduct required to support an IIED claim.” Benningfield, 183 S.W.3d at 572.

Indeed, as this court has held in a case seeking recovery under similar Ohio tort law, “an


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employee’s termination, even if based upon discrimination, does not rise to the level of

‘extreme and outrageous conduct’ without proof of something more.” Godfredson v. Hess

& Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999).


       Here, Brown attempts to bolster her tort claim by highlighting the fact that some of

the individual defendants appeared to attempt to isolate the plaintiff at work, counsel other

employees not to associate with Brown, and require the plaintiff to obtain permission

anytime she left her work station. Although such actions may be immature, petty, and

destructive of an efficient working environment, as a matter of law they do not come close

to approaching the level of outrageous behavior necessary to support a claim for

intentional infliction of emotional distress under established Kentucky law.


                                        CONCLUSION


       For the reasons set out above, we conclude that the district court’s dismissal of that

portion of Brown’s retaliation claim that involves her suspension and referral for

psychological evaluation must be REVERSED and the case REMANDED for such further

proceedings as are necessary. We AFFIRM the district court’s judgment dismissing the

plaintiff’s claim for intentional infliction of emotional distress.




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