                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0013n.06

                                          No. 16-3563


                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                            Jan 06, 2017
                                                                            DEBORAH S. HUNT, Clerk
DENISE PRESLEY,                   )
                                  )
     Plaintiff-Appellant,         )
                                  )                            ON APPEAL FROM THE
v.                                )                            UNITED STATES DISTRICT
                                  )                            COURT FOR THE NORTHERN
OHIO DEPARTMENT OF REHABILITATION )                            DISTRICT OF OHIO
AND CORRECTION,                   )
                                  )                                        OPINION
     Defendant-Appellee.          )
                                  )



       BEFORE:        BATCHELDER, STRANCH, and DONALD, Circuit Judges

       JANE B. STRANCH, Circuit Judge. Denise Presley, a nurse at Toledo Correctional

Institution, brought race and sex discrimination claims under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., against her former employer, the Ohio Department of

Rehabilitation and Correction (ODRC). Presley alleged that ODRC discriminated against her on

the basis of race by failing to promote her, engaging in disparate discipline, improper

reassignment and constructive discharge, and also discriminated against her on the basis of sex.

The district court granted summary judgment to ODRC.            For the following reasons, we

AFFIRM.

                                  I.       BACKGROUND

       Denise Presley began working as a registered nurse in 2003, first at Toledo Hospital, and

then at the Ohio Department of Mental Health’s Northwest Hospital. Presley was terminated
No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


from Northwest Hospital in March 2012, after a series of disciplinary incidents, many involving

patient care.   Presley’s union challenged her removal, and she entered into a settlement

agreement that, among other conditions, rescinded her removal and transferred her to the Toledo

Correctional Institution (ToCI), under an extended probationary period of one year. Presley

began working at ToCI in May 2012 and successfully completed her probationary period.

       In July 2013, Presley was given counseling for improperly handling a pill call. Presley

disputes that the counseling was warranted, and states that a white nurse handling a pill call at

the same time and in the same manner was not given similar counseling. In August, Presley was

investigated for several errors: mishandling a patient’s medication, failing to fully document an

inmate’s medication order, and arriving at work two hours late. Presley asserts that she actually

properly handled the medication and documentation in the first two instances, but that the

Medication Administration Record (MAR) was missing. The MAR was later found, and Presley

alleges that she was blamed after a second shift nurse re-wrote the order incorrectly.

       Presley received a pre-disciplinary conference notice for the medication issue in October

2013. As part of the notice, she received several documents detailing her medical errors.

Presley alleges that in preparing this investigatory interview report, supervisor Kim Henderson

reviewed documents that also showed a white nurse, Hannah Godsey, had made the same errors

concerning dates or durations or prescriptions, but that Henderson ignored those errors in favor

of pursuing an investigation into Presley. Presley appeared at her disciplinary hearing with her

union representative. A settlement agreement, finalized in April 2014 following Presley’s return

from medical leave, ultimately imposed a one-day working suspension without loss of pay.

       With Laura Burkin’s resignation as Nurse Supervisor in August 2013, a white nurse,

Hannah Godsey, was placed into the position on a temporary basis and the job opening was



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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


posted for a permanent replacement. Presley alleges that while the formal announcement of

Godsey’s placement in the interim position came in August, the decision was made at least as

early as June or July, when Tara Pinski, Labor Relations Specialist, announced that Godsey

would be Burkin’s replacement. Presley states that when she asked another nurse why the

interim position was not posted to allow everyone to apply, she was told that the “decision about

the Interim position had already been made.”          Presley discussed the issue with her union

representative, but took no further action.

       When the permanent position was posted, it was listed as a bargaining unit position.

According to Presley, this was typical for the same position at other ODRC medical facilities,

though she acknowledges that it was not a bargaining unit position when held by Burkin. ToCI

states that the position was always intended to be exempt, and characterizes the bargaining unit

position posting as a “typographical error.” Presley asserts that as the most senior person in the

RN’s union, she had a right to the bargaining unit position based on her seniority.

       She applied for the position and interviewed with a panel of other nurses and

administrators. Presley later testified that if she thought Nurse Supervisor was an exempt

position and she would no longer have union protection, she probably would not have applied for

the position. Presley states that she did not have any problem with the interview, did not

experience any hostility from the interviewers, and that the issue of whether the position was in

the bargaining unit did not arise. During the interview, Warden Edward Sheldon told Presley

that she performed well, though he later testified that other interviewers and her supervisors told

him that she had a reputation as a “[m]arginal employee” and “average RN.” (R. 24 at PageID

938) Jamey Wildman, one of the interviewers and also a nurse at ToCI who worked as a Quality




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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


Improvement Coordinator (QIC), testified that he was “not impressed” with Presley’s nursing

skills or interactions with co-workers based on their prior experience together.

       In November 2013, Godsey was appointed to the permanent Nurse Supervisor position.

Wildman testified that despite her position as interim Nurse Supervisor, it was not “preordained”

that Godsey would receive the promotion. Presley filed a charge of discrimination with the Ohio

Civil Rights Commission and the Equal Employment Opportunity Commission (EEOC), stating

that she “bid on a union supervisor position [and] had an interview,” she was the “top seniority

RN at the facility,” and she was the best candidate for the position based on her seniority and

experience. Her complaint alleged that the job had instead gone to a “younger white female with

less seniority.” (R. 22-59 at PageID 649)

       Presley alleges that Godsey admitted, during her deposition, to making medical errors in

failing to provide dates and durations on medical records, and was not disciplined for these errors

either before or after her promotion. Presley claims that these errors are generally known by

other nurses at the facility and that Godsey’s admissions reflect a serious lapse of knowledge.

Godsey recalls being disciplined twice during her time at ODRC: first, for failing to count

syringes and medications, and second, for failing to advise her supervisor that a QIC had a

restriction on his license. Presley alleges, based on the testimony of another ToCI nurse, that

Godsey was “lazy, very lax in her duties, and mostly played around, flirting and socializing.”

(R. 31-4 at PageID 1503) Presley further states that management was aware of Godsey’s

improper behavior, because it was reported to her then-supervisor, Glen Tappan. Presley herself

reported some of Godsey’s errors to Wildman in his capacity as QIC.

       During this time, Michael Mathews, a white male nurse at ToCI, was also being reported

and investigated for mistakes. Presley alleges that Mathews made errors such as failing to give



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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


inmates their medication, improperly recording medication given to an inmate who had been

discharged, and falsifying documents. In March 2014, Godsey, Mathews’s supervisor, prepared

an investigatory report covering an allegation that Mathews had been caught sleeping during his

shift. Mathews had previously been found sleeping on duty by Kim Henderson, who had given

him a verbal warning. ToCI employees are subject to ODRC Standards of Employee Conduct

(the Standards), which include a disciplinary grid providing for progressive discipline. Presley

alleges that Mathews’s disciplinary logs show that he was not disciplined for his errors in

accordance with the Standards. Specifically, Mathews’s log does not list his first infraction for

sleeping on the job, and no discipline was imposed for the second. The Standards require a five-

day fine, suspension, or working suspension, or removal for a second offense of sleeping on

duty. Tara Pinski recommended a two-day suspension for Mathews’s second offense, but her

recommendation was not submitted in accordance with the terms of the collective bargaining

agreement. As a result, the discipline could not be imposed.

       Presley went on leave for a non-work related injury in November 2013, and returned in

April 2014. Upon Presley’s return to work, Wildman observed her make several errors. She

received additional training to cover processing orders for medications, and properly creating

and continuing MARs. On June 4, 2014, Presley participated in another interview to discuss

medical errors she had made since her return. The next day, Presley emailed the Warden, asking

to meet with him. She stated that she was concerned that she was “being singled out and

harassed” and that she was “the only state African American worker in the department.” (R. 22-

72 at PageID 676-77) She expressed concern about returning to work after five months of

medical leave, and that many policies had changed that she was “not made aware of and

need[ed] to be refreshed on” rather than punished for. (Id.) Presley met with Deputy Warden



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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


Corey Foster, who was responsible for the medical department, and discussed her documentation

errors. Foster told her that missing documentation still constituted a medical error that required

the institution to write her up.

        On June 12, 2014, Presley processed a medical order for an inmate and erroneously

discontinued his prescription medication, which resulted in the inmate not receiving his

immunosuppressant medication for one or two weeks. Following this incident, Presley was

reassigned from work involving patient care to a position in medical records. Wildman, who

maintained supervisory capacity over Presley, testified that she had made numerous errors since

returning from leave and the chances of an inmate being injured “due to poor nursing practice”

were high with Presley in patient care. (R. 23 at PageID 779) Wildman stated that the decision

to reassign Presley to records was proper, based on patient safety. Presley claims that the

transfer was humiliating, and that it was unheard of for a nurse who had been relieved of her

duties pending investigation to be reassigned to such a position. She asserts that all other nurses

who had been relieved of their duties pending investigation were put on paid administrative

leave. About a month after her transfer, Presley met with Human Resources of ToCI to sign

resignation papers, which indicated she was resigning for medical reasons. Shortly thereafter,

Presley spoke with an ODRC investigator and told him that ToCI had been a stressful place to

work, and that “Caucasians make mistakes and are not disciplined.” (R. 22-79 at PageID 687)

        After receiving a Notice of Right to Sue from the EEOC, Presley filed suit in district

court, alleging discrimination on the basis of race for failure to promote, disparate discipline, and

reassignment and constructive discharge, and for sex discrimination, in violation of Title VII of

the Civil Rights Act of 1964. ODRC filed a motion for summary judgment, which was granted

by the district court. The court concluded that Presley could not show that ODRC’s failure to



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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


promote her to Nurse Supervisor over Godsey was pretext for race discrimination, and rejected

Presley’s claim that she was disciplined more frequently because of her race or that ODRC’s

reason for disciplining her was pretext for racial discrimination.        On her claim of race

discrimination for reassignment and constructive discharge, the court determined that Presley

could not show that ODRC intended to force her to quit, or that its determination that she posed a

danger to patients was pretext for discrimination. Additionally, the court concluded that Presley

failed to make a prima facie case for sex discrimination because she was not similarly situated to

Mathews, who had been found sleeping on duty.

                                    II.       ANALYSIS

       This court reviews a district court’s grant of summary judgment de novo and considers

the facts and any inferences drawn in the light most favorable to the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate

when there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). The burden falls to the moving party to

demonstrate that no genuine issues of material fact exist. See Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). The central question at the summary judgment stage 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.” Anderson, 477 U.S. at 251-52.

       Title VII prohibits an employer from discriminating against any person with respect to

the terms, conditions, or privileges of her employment based on race or sex. 42 U.S.C. § 2000e-

2(a)(1). To establish a discrimination claim under Title VII, plaintiffs must present either direct

or circumstantial evidence of discrimination by an employer.         Wheat v. Fifth Third Bank,

785 F.3d 230, 237 (6th Cir. 2015).         Because Presley offers circumstantial evidence of

discrimination by ODRC, we apply the burden-shifting framework set forth in McDonnell
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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


Douglas Corporation v. Green, 411 U.S. 792, 802-03 (1973). The first step of the framework

requires the plaintiff to establish a prima facie case of discrimination.        White v. Baxter

Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008).          Presley’s claims generally require

establishing the same prima facie case. She must show that she (1) was a member of a protected

class; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was

replaced by someone outside the protected class or was treated differently from a similarly

situated, non-protected employee. Id. We have “held consistently that a plaintiff’s burden of

establishing a prima facie case is not an onerous one.” Wheat, 785 F.3d at 237. Once the

plaintiff proves this prima facie case, the employer has the burden to put forth a legitimate, non-

discriminatory reason for the employment action taken against the plaintiff. Baxter Healthcare,

533 F.3d at 391. If the employer provides such a reason, the burden once more shifts to the

plaintiff to show that the reasons offered by the employer were pretext for unlawful

discrimination. Id. at 391-92.

       A.      Race Discrimination Claims

       Presley alleges that ODRC discriminated against her on the basis of race by promoting

Godsey to Nurse Supervisor, disciplining Presley more harshly than her white co-workers, and

reassigning her to an administrative position, which she argues was a constructive discharge.

The district court granted summary judgment to ODRC on all of these claims.

               1.     Failure to Promote

       The district court determined that ODRC did not seriously contest Presley’s prima facie

case on her failure to promote claim, but argued instead that she could not show that ODRC’s

reason for hiring Godsey was pretext for discrimination. The court agreed, finding that Presley

could not show she was so clearly more qualified than Godsey as to suggest pretext. On appeal,

Presley first argues that ODRC discriminated against her by promoting Godsey instead of

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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


Presley, though Presley had more seniority.           As evidence of pretext, Presley points to

“irregularities” in the application and selection process, such as the initial bargaining unit

position posting and comments suggesting that Godsey had been pre-selected for promotion.

       On appeal, ODRC argues that Godsey was not similarly situated to Presley at the time of

promotion because Godsey already held the interim Nurse Supervisor position, and thus Presley

cannot establish her prima facie case. We disagree. This takes too narrow a view of an adequate

comparator, who need only be similarly situated in the “relevant aspects” to the plaintiff’s

employment situation. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.

1998) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)).

Godsey is a white, female nurse at ToCI, who sought the same promotion as Presley. This is

sufficient to show that Godsey was similarly situated to Presley and to establish the final

component of her prima facie case.

       ODRC asserts that its legitimate, non-discriminatory reasons for promoting Godsey were

the support of management and the trust it placed in her, as shown by the recommendations of

other supervisors and the interview panel’s finding that she was the best candidate for the

promotion. To show that these reasons were pretext for discrimination, Presley must provide

“other probative evidence of discrimination[] that . . . taken together with evidence that [she] was

as qualified as or better qualified than” Godsey could create a genuine dispute of material fact.

Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 626-27 (6th Cir. 2006). If there is “little or no

other probative evidence of discrimination, . . . the rejected applicant’s qualifications must be so

significantly better than the successful applicant’s qualifications that no reasonable employer

would have chosen the latter applicant over the former.” Id. at 627.




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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


       Presley argues that she was objectively far more qualified for the position than Godsey.

As evidence, she asserts that Godsey made numerous medical errors prior to her appointment as

Nurse Supervisor. The record shows that Godsey was disciplined twice during the time she was

employed at ODRC, once for failure to count syringes and medications and another time for

failing to advise her supervisor that a QIC had a restriction on his license. The record also shows

that complaints were made about Godsey to her then-supervisor, Glen Tappan, and Presley

testified that she herself reported some of Godsey’s errors to Wildman. This evidence shows that

Godsey did not have a spotless record as a nurse at ToCI at the time of her promotion to Nurse

Supervisor.

       But to show pretext based on qualifications alone, Presley must show that no reasonable

employer would have chosen Godsey over her because Presley’s qualifications were

significantly better than Godsey’s. Bender, 455 F.3d at 627. The record reveals that Godsey had

worked at ToCI over two years longer than Presley and that Presley had been employed at ToCI

following performance problems at her prior job and came subject to a full year of probation. At

the time of the promotion decision, Presley was under investigation for mishandling an inmate’s

medication, and had previously been given a warning for improperly handling a pill call. In light

of this record, Presley cannot show that her qualifications were so significantly better than

Godsey’s as to make ODRC unreasonable for passing over her for the promotion. Presley has

shown only that she was at least as qualified as Godsey, and she therefore must provide other

probative evidence of discrimination to show pretext. Id.

       Presley offers “irregularities” in the promotion process as such evidence, namely that the

position was originally listed as bargaining unit and indications that Godsey had been pre-

selected for the position. For the latter, Presley points to a statement by Tara Pinski to two other



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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


nurses in June or July 2013 that Godsey was “going to be their boss.” (R. 31-2 at PageID 1496-

97; R. 31-3 at PageID 1499) One of the nurses, Derek Urban, testified that Pinski made this

remark prior to a meeting to discuss conflict between nurses and management, after Urban

inquired as to why Godsey was present. Urban testified that he found Godsey’s presence

inappropriate because the meeting was partially called to discuss complaints against her, and that

after he expressed this, Pinski told him that Godsey was going to be selected for promotion. But

the testimony in the record does not show that: this statement was more than Pinski’s opinion as

to which nurse would likely fill the opening; Pinski was involved in the hiring process; or that

she received information that Godsey was being selected from someone involved in the process.

Even seen in the light most favorable to Presley, this statement does not constitute probative

evidence of discrimination on the basis of race that rises to the level of pretext.

       The fact that the position was originally posted as bargaining unit and then changed to

exempt, Presley argues, is also probative evidence of discrimination, because as the nurse with

the most seniority, she would have been given the promotion if it had been a bargaining unit

position. Though ODRC argues that there is no evidence the position was ever intended to be in

the bargaining unit, the record is clear that the position was originally posted as a bargaining unit

job. ODRC contends that this was a typographical error, but provides no information as to how

the error occurred, or when or why it was changed to an exempt position.

       Nevertheless, the two previous Nurse Supervisors at ToCI were exempt employees, and

internal ODRC documents from the hiring process support its contention that the position was

always treated as exempt. In addition, the fact that ODRC conducted interviews and had a hiring

committee recommend the best candidate reinforces its position.             Presley, moreover, was

interviewed for the position and testified that she had no complaints about the interview.



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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


       Though this presents a close case, the evidence offered by Presley, taken in the light most

favorable to her, fails to establish a genuine dispute of material fact that ODRC’s proffered

reasons for failing to promote Presley were a mere pretext masking race discrimination.

               2.      Disparate Discipline

       Presley next argues that ODRC discriminated against her by disciplining her more

frequently than Godsey. The district court determined that Presley failed to meet two elements

of her prima facie case: that she had suffered an adverse employment action and was treated

differently than a similarly situated nurse. Even if Presley had made her prima facie case, the

district court determined that she failed to show that any difference in discipline between her and

Godsey was pretext for race discrimination.

       An adverse employment action requires a “significant change in employment status, such

as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Baxter Healthcare, 533 F.3d at 402 (citation

omitted). We have said that “a written reprimand, without evidence that it led to a materially

adverse consequence such as lowered pay, demotion, suspension, or the like, is not a materially

adverse employment action.” Cregett v. Jefferson Cty. Bd. of Educ., 491 F. App’x 561, 566 (6th

Cir. 2012). The record shows that Presley was given a warning for mishandling a pill call, a one-

day suspension without a loss of pay for her errors handling medical records, and was reassigned

to an administrative position for improperly discontinuing an inmate’s medication. Presley

argues her reassignment separately, so her disparate discipline claim rests on the warning and

one-day suspension. Though a suspension may be a materially adverse employment action even

without a loss of pay, there is no indication that Presley’s one-day suspension “had any long-

term impact on the terms or conditions of [her] employment,” as she was able to continue

working and receiving her regular pay package even through the suspension. Hill v. Nicholson,
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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


383 F. App’x 503, 509 (6th Cir. 2010); see also Cregett, 491 F. App’x at 566. The counseling

and working suspension that Presley received as part of the progressive disciplinary system do

not rise to the level of “a significant change in employment status,” which the adverse

employment action element requires. Baxter Healthcare, 533 F.3d at 402; Hill, 383 F. App’x at

509.

               3.     Reassignment and Constructive Discharge

       Presley also argues that ODRC discriminated against her by reassigning her to an

administrative position pending investigation into a medical error, which she states constituted a

constructive discharge. The district court held that Presley could not establish a prima facie case

because she could not show that that the temporary reassignment was “objectively intolerable.”

On appeal, Presley argues that her assignments after transfer were significantly different from

her assignments as a nurse on the hospital floor, and that such a reassignment, which she found

humiliating, was unheard of at ToCI.

       To show a constructive discharge where an employee’s salary and benefits stay the same

following reassignment, a plaintiff must provide evidence that the “employer . . . deliberately

create[d] intolerable working conditions, as perceived by a reasonable person, and . . . the

employer did so with the intention of forcing the employee to quit.” Logan v. Denny’s, Inc., 259

F.3d 558, 568-69 (6th Cir. 2001) (quoting Moore v. KUKA Welding Sys., 171 F.3d 1073, 1080

(6th Cir. 1999)).    This analysis asks us to evaluate both the “employer’s intent and the

employee’s objective feelings.” Id. at 569. We assess seven factors in considering whether

working conditions were objectively intolerable: “(1) demotion; (2) reduction in salary;

(3) reduction in job responsibilities; (4) reassignment to menial or degrading work;

(5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation

by the employer calculated to encourage the employee’s resignation; or (7) offers of early
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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


retirement or continued employment on terms less favorable than the employee’s former status.”

Id. (citation omitted).

        Presley contends that the district court failed to properly assess these factors, but does not

offer an alternative evaluation that would support finding that her reassignment created

objectively intolerable working conditions. Turning to the factors, Presley does not directly

argue that the transfer was a demotion. Her assertions that the records position involved less

responsibility and prestige might be taken as such; however, the evidence in the record shows

that she was assigned to records only while she was under investigation for medical errors.

Presley concedes that her salary was not reduced but did testify that the reassignment was

humiliating, arguing that the “position of RN requires more training than a records clerk.” This

provides support for factors (3) and (4). The record is silent as to evidence supporting factors

(5), (6), and (7). Considering the seven Logan factors, Presley fails to show sufficient support

for her claim of objectively intolerable working conditions.

        Presley also has not provided evidence that ODRC deliberately created these conditions

with the intent of forcing her to quit. In Logan, we found that the evidence created an issue of

fact because it was “completely foreseeable that a reasonable person would have resigned under

the[] circumstances.” 259 F.3d at 573; see also Moore, 171 F.3d at 1080 (finding that the

defendant had intentionally isolated the plaintiff after he filed an EEOC complaint, which was

sufficient evidence for a jury to conclude that the defendant intended for the plaintiff to resign).

Temporarily reassigning Presley to work in records pending an investigation into a medical error

did not create a situation where it was similarly foreseeable that a reasonable person would have

resigned.




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       Thus, we affirm the district court’s grant of summary judgment to ODRC on Presley’s

claim for race discrimination based on failure to promote, disparate discipline, and reassignment

and constructive discharge.

       B.      Sex Discrimination Claim

       In addition to her race discrimination claim, Presley alleges that ODRC discriminated

against her on the basis of her gender by punishing her more harshly than Mathews, a male nurse

who was found sleeping on the job twice and written up once. The district court determined that

Presley could not meet her prima facie case on this claim because Mathews did not engage in the

“same conduct” and was not similarly situated.

       To establish a comparator in a discrimination claim, we “make an independent

determination as to the relevancy of a particular aspect of the plaintiff’s employment status and

that of the non-protected employee.” Ercegovich, 154 F.3d at 352. In the present case, Presley

alleges that ODRC failed to punish Mathews as harshly as was called for under its Standards of

Employee Conduct. Under the Standards, a first offense for sleeping on the job permits removal,

and a second offense requires a fine, a five-day suspension or removal. Mathews’s first offense

was never placed in his disciplinary log, and his second offense was never punished despite a

recommendation for discipline because the recommendation was delivered beyond the time

requirements in the collective bargaining agreement. Presley generally asserts that ToCI was

responsible for delaying the submission of the recommendation to punish Mathews. She

contrasts this treatment with the write-ups and suspension she received, as well as her eventual

reassignment, but fails to connect that evidence to her claim of sex discrimination.

       Presley has not shown that Mathews was similarly situated in the relevant aspects.

Simply showing that Mathews was caught engaging in discipline-worthy conduct during this

time period at ToCI is not enough to make him an adequate comparator without demonstrating
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No. 16-3563, Presley v. Ohio Dep’t of Rehab. & Corr.


how serious his misconduct was in comparison to Presley’s. The record is unclear on this point,

as the Standards do not specifically mention mishandling a pill call, improperly filing medical

documentation, or mistakenly discontinuing medication, and Presley does not clarify how these

offenses are covered by the Standards. Presley fails to establish a prima facie case of sex

discrimination.

       Even if she could meet this this first step, Presley cannot show that ODRC’s legitimate,

non-discriminatory reasons for disciplining her were pretext. Presley was given a write-up and

working suspension for the errors she made handling patient medication and following proper

institutional procedures. After Presley mistakenly discontinued an inmate’s medication, ODRC

temporarily reassigned her to an administrative position pending an investigation in the interest

of patient safety. Presley has not provided evidence to show that these reasons “(1) ha[d] no

basis in fact; (2) did not actually motivate the action; or (3) were insufficient to warrant the

action.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012). While she

disputes that some of these errors were in fact medical errors, these allegations are not sufficient

to establish that ODRC’s reasons for disciplining her had no basis in fact, especially in light of

the pre-disciplinary conference she attended following the July 2013 incident and her interview

with management following the 2014 incident. These assertions make clear that Presley’s

definition of “medical error” differs from ODRC’s, but they do not support finding pretext where

ODRC has pursued disciplinary actions in accordance with its definitions of medical errors.

Thus, Presley’s sex discrimination claim fails.

                                 III.        CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s grant of summary

judgment to ODRC on all claims.



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