                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0800n.06

                                                No. 15-3486
                                                                                                  FILED
                             UNITED STATES COURT OF APPEALS                               Dec 09, 2015
                                  FOR THE SIXTH CIRCUIT                               DEBORAH S. HUNT, Clerk

REGINALD LAUGHLIN,                                 )
                                                   )
        Plaintiff-Appellant,                       )        ON APPEAL FROM THE UNITED
                                                   )        STATES DISTRICT COURT FOR
v.                                                 )        THE NORTHERN DISTRICT OF
                                                   )        OHIO
                                                   )
CITY OF CLEVELAND; DOMINIC                         )
SANTORA,                                           )
                                                   )
        Defendants-Appellees.                               )

        BEFORE: COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.*

        PER CURIAM. Appellant Reginald Laughlin is an African-American male who was,

briefly, a sewer service worker at the City of Cleveland’s Department of Public Utilities. After

his termination, Laughlin filed a complaint alleging that he received negative performance

reviews and, as a result, was fired in retaliation for complaining about the hostile work

environment caused by Defendant-Appellee Dominic Santora’s racist and sexist comments. The

district court granted Defendants’ motion for summary judgment. We affirm.

                                                       I.

        In October 2012, the City of Cleveland hired Laughlin as a sewer service worker. Under

the terms of a collective bargaining agreement, permanent employment was conditioned on his

satisfactory performance during a 180-day probationary period. During this period, Laughlin

*
 The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, sitting by
designation.
No. 15-3486, Laughlin v. City of Cleveland, et al.


rotated between three different crews to determine the best fit and received a written

performance review for each 30-day period.

         Appellee Dominic Santora, a Caucasian male and foreman of a crew Laughlin worked

on, completed Laughlin’s performance review for the first 30-day period. Santora had worked

with Laughlin for only a few days before writing the review, but noted that Laughlin’s

performance was satisfactory.

         Laughlin continued working with Santora for the next 30-day period. Laughlin did not

enjoy working on Santora’s crew because Santora “‘regularly’ engaged in conduct degrading to

women, and to only African-American or black women. Santora referred to these females as

‘bitches’ when referencing them and their anatomy. The term ‘regularly’ meant comments of this

nature were made at least three or four times a week when [Laughlin] worked with Santora.”

(Appellant Br. at 5.) Laughlin told Santora that he found the comments offensive. Laughlin does

not contend that Santora made any derogatory comments about members of his own crew, other

City of Cleveland employees, or Laughlin himself.

         After working together for a month, Santora gave Laughlin a negative review for the

second 30-day period ending December 14, 2012. The review is not dated, but Santora stated that

he usually completed the reviews within a week of the period ending. The review noted that

Laughlin “wasn’t retaining the knowledge needed to perform job duties,” “was not open to

constructive criticism,” walked away from difficult tasks, and would ignore Santora and other

coworkers. (R. 17-6 at 3.) Laughlin disputes the accuracy of these statements, and contends that

he made Santora aware of a hearing impediment that could have been a cause of the criticism.

Laughlin also contends that during this review period, Santora told him that his “work skills were

better than some sewer workers who had worked for the City of Cleveland for years.” (R. 18-1.)



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No. 15-3486, Laughlin v. City of Cleveland, et al.


         By December 27, 2012, Laughlin had had enough of Santora’s comments and went to

Sewer Maintenance Superintendent Daniel Tomko to complain. Laughlin states that he told

Tomko that Santora “had issues . . . with African-American women and just African-American

men period” and asked Tomko for an incident complaint form. (R. 17-2 at 29.) Tomko gave

Laughlin the complaint form and Laughlin filled it out “that day or the next day.” (Id. at 31.) On

the advice of his union steward, however, Laughlin decided to wait until the probationary period

was over before turning the form in. Tomko also acknowledges giving a blank incident form to

either Santora or Michael Smith, Santora’s supervisor, which was filled out by Santora and

stamped as received at 4:00 p.m. on December 27.

         On December 28, Laughlin was transferred to a different crew run by foreman Phillip

Lewis. Workers on Lewis’s crew commented that Laughlin was a subpar worker when he

arrived. After working with Laughlin for 5 days, Lewis wrote a negative performance review,

rating Laughlin as a “below average” employee, and noting that he needed to show initiative and

had below average job knowledge.

         Laughlin was fired on January 31, 2013, a little more than halfway through the

probationary period. The decision was made by the Commissioner of the City’s Division of

Water Pollution Control. Tomko had recommended Laughlin’s termination based on the two

negative performance reviews and on Michael Smith’s recommendation. When Danyelle

Conner, a human resources manager, told Laughlin he was being terminated, Laughlin told her

of his problems with Santora and that he felt the firing was in retaliation for his complaints about

Santora. Conner conducted an investigation and concluded that Laughlin’s complaints did not

affect the decision to fire him.




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No. 15-3486, Laughlin v. City of Cleveland, et al.


                                                     II.

         Laughlin brings a claim of retaliation under both Title VII and Ohio state law, arguing

that he was given the negative performance reviews and terminated because he complained of

the hostile work environment caused by Santora’s racist and sexist comments. Ohio Revised

Code Chapter 4112 is “Title VII’s Ohio state corollary.” Vehar v. Cole Nat’l Grp., Inc., 251 F.

App’x 993, 1002 (6th Cir. 2007). Ohio courts have held that “federal case law interpreting Title

VII . . . is generally applicable to cases involving alleged violations of [Revised Code] Chapter

4112.” Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n,

421 N.E.2d 128, 131 (Ohio 1981) (collecting cases). “When plaintiffs allege retaliation under

both laws and present circumstantial evidence to prove their case, . . . we analyze the two claims

under the same test.” McCowen v. Vill. of Lincoln Heights, No. 15-3040, 2015 WL 4978979, at

*3 (6th Cir. Aug. 21, 2015).

A. Title VII Retaliation

         To make a prima facie showing of Title VII retaliation, an employee must show

“(1) he . . . engaged in protected activity, (2) the employer knew of the exercise of the protected

right, (3) an adverse employment action was subsequently taken against the employee, and

(4) there was a causal connection between the protected activity and the adverse employment

action.” Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir. 2008). If the employee

makes this showing, the burden shifts to the employer to articulate a “legitimate,

nondiscriminatory reason for its actions.” Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531,

544 (6th Cir. 2008). If the employer meets this burden, the employee must demonstrate that the

legitimate reason offered by the employer “was a pretext designed to mask retaliation.” Id.




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No. 15-3486, Laughlin v. City of Cleveland, et al.


         The district court held that Laughlin failed to make a prima facie showing of retaliation

because he did not show that he engaged in protected activity and, even if he had, he did not

demonstrate a causal connection between the protected activity and the adverse employment

action. On de novo review, Mounts v. Grand Trunk W. R.R., 198 F.3d 578, 580 (6th Cir. 2000),

we find that Laughlin has failed to demonstrate a causal connection between his complaints and

his termination and, accordingly, we affirm.1

B. Causation

         To establish causation, Title VII plaintiffs must show that their “protected activity was a

but-for cause of the alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 133 S. Ct. 2517, 2534 (2013). Laughlin makes no such showing, because the evidence

indicates that he was fired due to his poor job performance. Laughlin received two negative

performance evaluations (out of three) during his three-and-a-half month stint with the City of

Cleveland. Santora filed one of those evaluations. Laughlin points out that Santora wrote the

negative performance evaluation shortly after Laughlin told Santora his comments were

inappropriate. But “temporal proximity alone [is] not particularly compelling [when] the

plaintiff’s retaliation case [is] otherwise weak, and there [is] substantial evidence supporting the

defendant’s version of the events.” Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir.

2000).

         That is the case here. Santora’s evaluation noted, among other things, that Laughlin was

“not familiar with [the] tools of the trade,” “wasn’t retaining the knowledge needed to perform

job duties,” and “would completely shut down” upon receiving constructive criticism. (R. 17-6 at

3.) Laughlin’s coworkers testified similarly. Ted Arensberg, a worker on Lewis’s crew, stated

1
  The Court has also reviewed the district court’s conclusion that Laughlin did not engage in protected activity
because it was unreasonable for him to believe that a racially hostile work environment existed. Because Laughlin’s
claim would fail even if he was engaged in protected activity, we need not address this finding.

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No. 15-3486, Laughlin v. City of Cleveland, et al.


that when Laughlin first came over from Santora’s crew, he “was a little slow.” (Id. at 69.)

Another worker on Lewis’s crew noted that Laughlin “was clueless in the beginning” and

“appeared to be sensitive and took constructive feedback personally.” (Id.) Lewis, who had no

knowledge of Laughlin’s experience with Santora, filed the second negative performance

evaluation “based . . . strictly on [Laughlin’s] performance.” (Id. at 68.) And Conner, the human

resources manager, conducted a full investigation and concluded that Laughlin’s complaints did

not affect the decision to fire him. Laughlin offers no rebuttal to this barrage of evidence, and all

of it suggests that, while his poor performance was a but-for cause of his firing, his complaints

about Santora’s comments were not.

         Finally, although the district court incorrectly stated that Laughlin had to show that

retaliation was the sole cause of his discharge, see Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312, 315-16, 321 (6th Cir. 2012) (en banc), that error was harmless. While events may

have more than one but-for cause, Laughlin has not shown that retaliation was one such cause in

this case.

         For these reasons, we affirm.




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