                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a1028n.06

                                           No. 12-4496

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                 )                               Dec 13, 2013
TAMMY RUSSELL,                                   )                           DEBORAH S. HUNT, Clerk
                                                 )
       Plaintiff-Appellant,                      )
                                                 )           ON APPEAL FROM THE
v.                                               )           UNITED STATES DISTRICT
                                                 )           COURT FOR THE SOUTHERN
JACOB LEW, in his official capacity as           )           DISTRICT OF OHIO
Secretary of the Treasury,                       )
                                                 )
       Defendant-Appellee.                       )



Before: MERRITT, GIBBONS, and MCKEAGUE, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Tammy Russell appeals from the magistrate

judge’s dismissal of her discrimination and retaliation claims. Russell, an Internal Revenue Service

(IRS) employee, argues that her employer1 violated the Rehabilitation Act by discriminating against

her because of her relationship to her disabled son. Proceeding by the consent of the parties, the

magistrate judge granted summary judgment for the IRS on all claims. We agree that no issue of

material fact exists and therefore affirm the judgment.




       1
        The original defendant in this case was Timothy Geithner, who was the U.S. Secretary of
the Treasury when the case was filed. Jacob Lew, who is the current U.S. Secretary of the Treasury,
has been substituted as the defendant pursuant to Fed. R. Civ. P. 25(d).

                                                 1
                                                  I.

       Tammy Russell began working for the U.S. Department of the Treasury in November 2000

as a Contact Representative for the IRS in Nashville, Tennessee. While she was working at the

Nashville office, Russell’s son, Dillon, began to have behavioral problems. He was later diagnosed

with high functioning autism and/or Asperger’s Syndrome. Because of Dillon’s disability, Russell

transferred to the IRS office in Covington, Kentucky, in 2002 so she could be closer to her family

and have easier access to medical care. During her three years in Covington, Russell periodically

submitted requests for intermittent leave under the Family Medical and Leave Act (FMLA) to care

for Dillon, which were approved. Russell was also promoted and received positive performance

evaluations.

       In the spring of 2005, Russell transferred to the IRS office in Columbus, Ohio to accept a

position as a Revenue Officer. The position required Russell to complete a one-year training

program. Her immediate supervisor in Columbus was Paul Meyer. Her second-in-line supervisor

(Meyer’s supervisor) was Anita Van Order.

       Russell’s first few months in Columbus were uneventful. According to Russell, Meyer first

discriminated against her in August 2005 when he denied her request for FMLA leave. Russell

asked to be excused from a day of training in order to attend Dillon’s school orientation. In an e-mail

about the request, Meyer reminded Russell that all new Revenue Officers were required to attend

training and were not allowed to miss class for any reason. Russell did not take leave.

       The IRS argues that Meyer was following the IRS/Small Business/Self-Employed Business

Unit Collection’s policy regarding leave use. According to the relevant policies, trainees in the one-

year training program are only allowed to take annual leave and miss classroom training in “rare


                                                  2
circumstances,” such as a personal emergency. Consistent with this policy, Meyer approved several

of Russell’s other leave requests during her one-year training period. And Russell admits she was

never denied leave in emergencies.

       Russell’s performance evaluations show that she performed well throughout the fall of 2005.

In Russell’s annual performance review, Meyer rated Russell’s performance as “fully successful”

in all critical areas for the period of November 2004 to October 2005. By December 2005, however,

Meyer began having concerns about Russell’s performance. He completed a Case Review, in which

he noted that Russell “need[ed] to make immediate improvement” and that Russell had

“significant[ly] decline[d] in work performance.” Russell claims she never received this review and

alleges that the IRS fabricated it for the purposes of the lawsuit. But she admits that Meyer

explicitly mentioned his concern with her time off in a conversation he had with her in December.

During this conversation, Russell asked for permission to work credit hours to compensate for the

missed time. Meyer initially told Russell that he would approve her request for credit hours, but he

later retracted his approval because Russell was not allowed to work credit hours as a trainee

according to IRS policy.

       Meyer addressed Russell’s poor performance three more times in writing before completing

a Formal Case Review on March 3, 2006. In this review, Meyer notified Russell that she would not

be receiving a promotion because she was not performing at a fully successful level. The Case

Review indicated that Russell would be placed on a performance plan within the next 30 days.

Russell testified that she was “shocked” by the review. She later signed the Case Review and

submitted a written rebuttal. In the rebuttal, Russell admitted that her work had lapsed because she

had taken time off to care for her son and to deal with several other personal issues. Russell also


                                                 3
attributed her poor work performance to the fact that she was not allowed additional credit hours to

catch up on her cases.

       Believing that Meyer had discriminated against her by withholding her promotion, Russell

submitted a complaint to the agency’s Equal Employment Opportunity (“EEO”) office on April 13,

2006. Russell, Meyer, and Van Order met about the EEO complaint a short time later. Russell

claims that during this meeting, Van Order repeatedly referred to Russell’s “issues,” which Russell

understood to mean her need to care for Dillon. According to Russell, Van Order also said that

“someone with [Russell’s] issues should find another job.” Van Order testified that she was simply

concerned about Russell’s stress levels in her personal life, including her autistic son, the death of

a parent, and a bad car accident. The parties did not reach an agreement, and Russell filed a formal

EEO complaint on August 15, 2006.

       Russell claims she was “the target of harassment” after she initiated EEO proceedings. For

example, Russell points to an e-mail from Meyer, in which he forwarded a recent decision in favor

of the IRS on an FMLA claim to all members of his staff. Russell alleges that Meyer’s secretary

changed Russell’s time sheets, refused to supply Russell with office supplies, and accessed

Russell’s confidential taxpayer data base without authorization.

       Meyer also asked Russell to obtain a medical certification to support her requests for FMLA

leave. Before May 12, 2006, Russell’s FMLA requests had been approved without medical

certification. Russell argues that this is evidence of Meyer’s retaliation after she filed EEO charges.

The IRS contends that its policies require an employee to obtain certification from a healthcare

provider that a serious health condition and/or a disability exists and to provide that certification to

either the employee’s manager or the Federal Occupational Health unit for consideration. Further,


                                                   4
the IRS claims that its management did not become aware of the paperwork issue until May 2006

because officials believed that Russell had completed the proper forms at her previous positions.

       Also in May 2006, Meyer formally placed Russell on a 60-day performance plan. Russell’s

performance began to improve as early as June 5, 2006, and Meyer released Russell from the plan

a month later. In the letter notifying Russell of her release, Meyer remarked,

       Your performance, of course, must continue to be acceptable. In accordance with
       Office of Personnel Management Regulations, if your performance again becomes
       unacceptable before May 8, 2007, I may recommend your removal or reduction in
       grade without affording you an additional opportunity to improve your performance.

Meyer promoted Russell to the GS-9 level. Russell continued to perform well through the fall of

2006, at which time Jacqueline Stokes, acting in a temporary capacity, rated Russell’s performance

as “fully successful.”

       But Russell’s performance declined again in December 2006. Stokes, as Acting Group

Manager for Meyer, conducted a review of Russell’s cases. The review showed that Russell needed

immediate improvement in two areas because she was “failing in multiple aspects.” The review also

noted that Russell had failed to take timely action on fourteen out of fifteen cases. In discussing the

review, Meyer wrote an e-mail to Dobson Narkittia, an employee in the IRS’s HR office, about

Russell. In the e-mail, Meyer commented, “[t]his looks like we are retaliating from her EEO and

Grievance but [Stokes] was not a part of that. It is good that another manager was able to do a

review.” Russell contends that this review is “suspect” because it includes several cases that had

been closed by the time of the review. Russell filed a rebuttal noting this issue. In the rebuttal, she

also admitted that she was not devoting enough time to her cases because she was dealing with

FMLA issues.




                                                  5
       Meyer wrote Russell another memorandum about her performance roughly a month later.

Meyer noted that he still had serious concerns with Russell’s performance and that the next step

would be to move forward with a recommendation of dismissal.             Russell responded and

acknowledged the fact that the time she spent on FMLA requests caused delays in her case

management. Russell again asked for more credit hours to maintain her inventory in light of her

need for time off to care for Dillon.

       On May 11, 2007, Van Order recommended that Russell be terminated. Russell objected,

and her termination was put on hold pending review and final decision from Van Order’s supervisor.

After the termination notice was issued, Russell’s automatic within-grade pay raise was withheld

and her promotion to GS-11 was denied twice. The IRS rejected Russell’s second application to GS-

11 because an insufficient number of candidates had applied. Alleging that other single-applicant

candidates had received promotions in the past, Russell “infers” she was not promoted due to the

pending termination action. Russell also argues that Meyer and Van Order worked together with

other staff members to damage her reputation while termination proceedings were ongoing. While

the proposal was pending, Van Order e-mailed with Russell about a dress code violation. And,

around the time of the rebuttal presentation, Meyer’s secretary called the EEO officer handling

Russell’s charges and reported that Russell had bought her son a gun.

       The Director of the Collection Central Area rejected Van Order’s termination proposal on

February 26, 2008. The Director found that Van Order’s termination proposal was supported by

Russell’s unacceptable performance; however, the Director decided not to take action in light of

other mitigating factors. Four months later, Russell received a “fully successful” ranking and her

within-grade pay raise.


                                                6
       In 2009, as part of an investigation into Meyer’s secretary’s unauthorized access to Russell’s

confidential information, Meyer and Van Order submitted affidavits in support of the secretary.

Both affidavits referenced Russell. Meyer attested that “Russell either filed or threatened to file

numerous grievances, E.E.O. complaints, and threatened employees with filing personal law suits.”

He went on to say that “[t]his employee [Russell] created a hostile work environment which was

recognized by most employees in the office and all levels of management.” Similarly, Van Order

stated that “[a]lthough [Russell] was never actually denied use of time for her son’s needs she

became very assertive . . . almost obsessive and paranoid.” Van Order also stated that Russell was

very vocal about her EEO case, which upset other employees. Russell contends that these affidavits

demonstrate Van Order’s and Meyer’s discriminatory animus and retaliatory motives toward

Russell.

       Russell filed this action on October 29, 2009, asserting violations of the Americans with

Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and the Rehabilitation

Act. After the district court dismissed Russell’s ADA and FMLA claims, the IRS moved for

summary judgment on Russell’s remaining claims for associational discrimination, retaliation, and

hostile work environment under Section 501 of the Rehabilitation Act. Proceeding by consent of

the parties, the magistrate judge granted the IRS’s motion in its entirety. Russell appealed,

challenging the magistrate judge’s decision as to her claims of discrimination and retaliation.

                                                II.

       We review a magistrate judge’s decision to grant summary judgment de novo. Crocker v.

Runyon, 207 F.3d 314, 318 (6th Cir. 2000). 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


                                                 7
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the burden of showing that there is

an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). In deciding motions for summary judgment, we draw all reasonable inferences in

favor of the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). “The ultimate inquiry is ‘whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’”

Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251–52 (1986)).

                                                III.

       Russell brings this action under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701–797(b),

which provides the exclusive remedy for federal employees alleging disability discrimination.

Peltier v. United States, 388 F.3d 984, 989 (6th Cir. 2004). In evaluating claims brought under the

Rehabilitation Act, we generally apply the same standards that govern claims brought under the

ADA. See 29 U.S.C. § 791(g) (2009); Andrews v. State of Ohio, 104 F.3d 803, 807 (6th Cir. 1997).

                                                 A.

       Russell alleges that the IRS discriminated against her because of her relationship with Dillon.

We have recognized in another unpublished opinion that associational discrimination claims are

viable under the Rehabilitation Act. See Popovich v. Cuyahoga Cnty. Court of Common Pleas,

Domestic Relations Div., 150 F. App’x 424, 427 (6th Cir. 2005). This case does not require us to

explore the issue further.

       We analyze Russell’s claim through a burden-shifting test similar to the one set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). Russell must demonstrate the


                                                 8
following elements to establish a prima facie case of associational discrimination under the

Rehabilitation Act: (1) she was qualified for the position; (2) she was subject to an adverse

employment action; (3) she was known to be associated with a disabled individual; and (4) the

adverse employment action occurred under circumstances that raised a reasonable inference that the

disability of the relative was a determining factor in the IRS’s decision. See Stansberry v. Air Wis.

Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011). If Russell can establish a prima facie case, then

the IRS must articulate a legitimate nondiscriminatory reason for the adverse action. See id. at 488;

see also Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009). The burden then shifts back

to Russell to prove that the reasons offered by the IRS were pretextual. See Stansberry, 651 F.3d

at 488; see also Upshaw, 576 F.3d at 584.

       Assuming that Russell may assert a claim of associational discrimination, we will also

assume that Russell has established a prima facie case of associational discrimination.

       In response, the IRS has offered legitimate, nondiscriminatory reasons for the four alleged

adverse employment actions. The IRS contends that it was following neutral IRS policies when it

denied Russell’s 2005 request for FMLA leave and her requests to work credit hours. Russell

concedes that this is a legitimate business justification. See Blackshear v. Interstate Brands Corp.,

495 F. App’x 613, 618 (6th Cir. 2012) (finding that employer had presented a legitimate,

nondiscriminatory reason when it terminated an employee according to company policy); Hollins

v. Atl. Co., 188 F.3d 652, 661 (6th Cir. 1999) (“[Employer] has, of course, offered its grooming

policy as its legitimate nondiscriminatory reason for its treatment of [employee].”). Further,

Russell’s poor performance is a legitimate, nondiscriminatory reason for the 2006 failure to promote

and the 2007 termination proposal. Russell argues that these actions technically violated union


                                                 9
policy because Russell’s most recent annual performance evaluation reflected she was “fully

successful.” It is not evident from the record before us that the IRS violated any policy. But, even

if Russell is correct, the IRS has produced sufficient evidence to meet its low burden of production.

See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256–57 (1981). Although adherence to

internal policies is one example of a legitimate, nondiscriminatory reason, it is not the only one. At

this point in the McDonnell-Douglas framework, we simply require that the reason for the action

be legitimate. See Stansberry, 651 F.3d at 488.

       We now turn to the issue of pretext, which provides a ready path for resolution of the case.

See Martin v. Barnesville Exempted Vill. Sch. Dist. Bd. of Educ., 209 F.3d 931, 935 (6th Cir. 2000).

Russell has offered no evidence to show that the IRS’s reasons were pretextual. In order to establish

pretext, Russell must demonstrate that the legitimate nondiscriminatory reason “(1) has no basis in

fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to

warrant the challenged conduct.” Burks v. Yellow Transp., Inc., 258 F. App’x 867, 874 (6th Cir.

2008) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)). Here, Russell does

not point to any evidence suggesting that the IRS’s denials of her requests for FMLA and credit

hours were prextual. Instead, she focuses on her performance.

       Russell argues that Meyer’s denial of her promotion and Van Order’s termination proposal

violated union policies. But, even taking Russell’s arguments as true, “as long as an employer has

an honest belief in its proffered nondiscriminatory reason for discharging an employee, the

employee cannot establish that the reason was pretextual simply because it is ultimately shown to

be incorrect.” Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 502 (6th Cir. 2007) (quoting

Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 117 (6th Cor. 2001)). In determining


                                                  10
whether IRS officials had an “honest belief” in their proffered reason, we look to whether the

supervisors reasonably relied on particularized facts available to the company and whether they

made a “reasonably informed and considered decision.” See id. at 502–503. At the time Meyer

denied Russell’s promotion, he had one negative case review, one negative memoranda, and two

negative workload reviews before him. And at the time Van Order recommended Russell’s

termination, she had the same reviews as well as two additional negative case reviews and two more

negative memoranda. See Chen v. Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009) (“[H]ere, the

evidence [the employer] had at hand when it fired [plaintiff] . . . indicated that [plaintiff]’s work was

not up to par.”). The fact that previous supervisors had never personally experienced problems with

Russell in other positions does not negate Meyer’s and Van Order’s belief that Russell was

performing poorly. Likewise, the fact that some of the case reviews involved a subjective

component is not sufficient evidence of pretext. See Manning v. Chevron Chem. Co., 332 F.3d 874,

882 (5th Cir. 2003). Other than her own speculation and conjecture, Russell has not provided

evidence that these evaluations were false and thus a result of discriminatory animus.

        Russell even acknowledged that she was distracted at work in her rebuttals. On appeal,

Russell argues that, when viewed in context, her rebuttals show that she did not believe her

performance to be deficient. We disagree. Russell used her rebuttals to provide reasons as to why

her performance was suffering, not to rebut her supervisors’ claims that her quality of work was

poor. For example, Russell claimed that her work was lacking because she was denied the use of

credit hours to catch up. However, Russell was not entitled to reasonable accommodation on

account of Dillon’s disability. See Stansberry, 651 F.3d at 486. Furthermore, the fact that the

supervisors would not allow Russell to adopt a modified working schedule does not demonstrate that


                                                   11
Russell’s regular-hours performance was satisfactory.        Russell must do more than provide

explanations for her performance, she must show that the IRS’s proffered reason “has no basis in

fact.” See Burks, 258 F. App’x at 874. She has not done so.

       Russell last points to comments made at the 2006 meeting and in the 2009 affidavits as

evidence that her poor performance did not actually motivate Meyer and Van Order. These

statements do not give rise to an associational discrimination claim. Even if true, the 2006

statements focus on Russell’s requests for modified work schedules and time off, not on the fact that

she had a disabled son. Likewise, the declarations in the affidavits do not support the inference that

the supervisors acted out of discriminatory animus toward Russell; they merely reflect Meyer’s and

Van Order’s view that Russell had a negative attitude at work. In sum, Russell has not offered

anything to show that the IRS was motivated by Dillon’s disability rather than Russell’s poor

performance. Like in Stansberry, “the only connection is that [the disability] possibly caused her

performance to slip.” See Stansberry, 651 F.3d at 489. This is not an actionable claim. See id. at

486.

                                                 B.

       We also apply the McDonnell-Douglas test to Russell’s retaliation claim. See Gribcheck v.

Runyon, 245 F.3d 547, 550 (6th Cir. 2001). First, Russell must set forth a prima facie case of

retaliation, which has four elements: (1) Russell engaged in a legally protected activity; (2) the IRS

knew about Russell’s exercise of this right; (3) the IRS then took an employment action adverse to

Russell; and (4) the protected activity and the adverse employment action are causally connected.

Id. If Russell carries this burden, the burden shifts to the IRS to “‘articulate some legitimate,

nondiscriminatory reason’” for its actions. Id. (quoting McDonnell Douglas, 411 U.S. at 802).


                                                 12
Then, Russell must prove by a preponderance of the evidence that the reasons offered by the IRS

are actually pretextual. Id. As in the discrimination context, we do not need to address Russell’s

prima facie case because Russell’s claim fails on pretext. See Martin, 209 F.3d at 935.

       Russell argues that she suffered two adverse employment actions in the context of her

retaliation claim: Van Order’s proposal that she be terminated and Meyer’s request that she provide

medical certification to support her requests for FMLA leave.2 As discussed above, by pointing to

Russell’s performance deficiencies, the IRS has met its burden to articulate a legitimate

nondiscriminatory reason for its termination proposal. Regarding Meyer’s request for certification,

the IRS has offered the legitimate nondiscriminatory reason that it was following neutral policies,

which Russell concedes.

       The only evidence in the record supporting Russell’s position that her supervisors retaliated

against her because of her EEO complaint are the 2009 affidavits and Meyer’s email to Narkittia.

But, as pointed out by the IRS and recognized by the magistrate judge, the affidavits mention

Russell as one of many factors that contributed to a tense and negative work environment.

Furthermore, the affidavits largely focus on Russell’s alleged hostility, aggressiveness, and

obsessive attitude over her FMLA requests and performance issues. The slight, tangential mention

of Russell’s EEO activity in the context of an affidavit about a secretary’s workload is not sufficient

to show pretext. Likewise, Meyer’s e-mail merely acknowledges that Russell’s poor performance


       2
         Russell also argues that she suffered a retaliatory hostile work environment. However,
Russell concedes that the IRS’s actions in this case do not rise to the level of “severe or pervasive
harassment.” Therefore, the alleged harassment does not constitute an adverse employment action
in the context of a retaliation claim. See Choulagh v. Holder, No. 12-1957, 2013 WL 2249459, at
*5 (6th Cir. 2013); Cleveland v. S. Disposal Waste Connections, 491 F. App’x 698, 707 (6th Cir.
2012); see also Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997). We find any
additional analysis regarding these actions unnecessary.

                                                  13
reviews could look like retaliatory conduct, not that they were. Russell has not offered anything to

show that the IRS was actually motivated by her EEO action rather than her poor performance.

       Similarly, Russell has failed to show that the IRS’s stated reason for requesting FMLA

certification was pretextual. Other than the fact that Meyer had not previously asked for medical

certification and the fact that the request came shortly after the EEO charges, Russell has not offered

any other evidence that the IRS’s request for certification was actually motivated by retaliatory

animus and not the IRS’s facially neutral policy. “[T]emporal proximity, standing alone, is not

sufficient evidence of pretext.” Thompson v. Ameritech Adver. Servs., 40 F. App’x 90, 93 (6th Cir.

2002). The record shows—and Russell does not contradict—that Meyer was operating under the

assumption that Russell had already filled out the proper documentation in her file. Once he found

out otherwise, he requested certification. Yet he continued working with Russell to allow her to take

other forms of leave and to later increase her FMLA allotment. On this record, no reasonable jury

could find that it was more likely than not that the IRS’s reliance on internal policy was a pretext

for retaliatory motive.

                                                 IV.

       For these reasons, we affirm the magistrate judge’s decision.




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