                                     File Name: 08a0381n.06
                                       Filed: June 26, 2008

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 07-5557

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

LINDA GAIL REED,

          Plaintiff-Appellant,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
METROPOLITAN GOVERNMENT OF                                 COURT FOR THE MIDDLE
NASHVILLE AND DAVIDSON COUNTY,                             DISTRICT OF TENNESSEE

          Defendant-Appellee.


                                                      /

Before:          KENNEDY and MARTIN, Circuit Judges, and HOOD, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge.            Linda Gail Reed sued the Metropolitan

Government of Nashville and Davidson County, alleging discrimination based upon her age, gender,

and perceived disability, and alleging that she was fired for speaking out against discrimination.

Because Reed failed to make a prima facie case for her age, gender, disability, and discrimination

claims, and because she failed to allege facts sufficient to support a hostile work environment claim,

we AFFIRM the district court’s dismissal of her case.

                                                  I




          *
        The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 07-5557
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Page 2

       Sergeant Linda Gail Reed began working with the Nashville Police Department in 1982 as

a police officer. Beginning in 2002, Lieutenant Duane Phillips was employed as Reed’s immediate

supervisor in the police department’s central records division. Reed alleges that Phillips made

remarks to Reed about being old, and forwarded an email about aging to some of his colleagues that

was later shown to Reed. Reed also claims that during this time period she was subjected to gender

discrimination and a hostile work environment, including an inappropriate remark at an office

costume party and a number of other unsavory mass emails.

       Around this same time, in 2003 and early 2004, Phillips referred Reed to the Police

Advocacy Support Services (“PASS”) program after Reed began exhibiting increasingly paranoid

behavior. This behavior included secretly tape recording conversations with colleagues in the police

department. Reed was ultimately referred for an independent psychological evaluation to Dr.

Rosemary Jeffries, a psychologist with the Nashville Area Behavioral Consultants. Jeffries

interviewed Reed, evaluated information regarding Reed’s work behavior (some of which came from

Phillips and other co-workers), and administered eight different psychological tests. Jeffries

concluded that Reed was not capable of handling the daily routine of supervising others, but that

with psychological treatment, she could return to her normal work duties.             Based on this

recommendation, Reed was temporarily decommissioned from duty on July 20, 2004. After some

months of treatment, Reed was reinstated and recommissioned on January 11, 2005.

       Reed claims that she was subjected to discrimination and harassment by Phillips and the

department based on her age, gender, and perceived disability, and that she was retaliated against for
No. 07-5557
Reed v. Metro. Gov’t of Nashville and Davidson County
Page 3

complaining about Phillips’ behavior. The district court granted summary judgment on each of these

claims, and Reed now appeals.

                                                  II

       We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins,

Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of

material fact exists and the moving party is entitled to judgment as a matter of law. FED . R. CIV . P.

56(c). In considering a motion for summary judgment, we construe the evidence and draw all

reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

Age Discrimination in Employment Act (ADEA)

       Reed’s first claim is that the department discriminated against her on the basis of her age by

temporarily decommissioning her. Under the Age Discrimination in Employment Act, an employer

is prohibited from discharging employees on the basis of their age. 29 U.S.C. § 623(a). To establish

a prima facie case of age discrimination, a plaintiff must show that (1) she was a member of a

protected class; (2) she was subjected to an adverse employment action; (3) she was qualified for the

position she held; and (4) she was replaced by, or her discharge permitted the retention of, a person

who does not belong to the protected class. See Majewski v. Automatic Data Processing, Inc., 274

F.3d 1106, 1115 (6th Cir. 2001).
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       Because Reed fails to allege that she was replaced by a younger officer, her prima facie case

fails. Therefore the district court correctly dismissed her age discrimination claims.1

Gender Discrimination and Hostile Work Environment

       Reed also alleges that the department violated Title VII of the Civil Rights Act by (1)

discriminating against her based on sex, see Humenny v. Genex Corp., 390 F.3d 901, 906 (6th Cir.

2004), and (2) creating a hostile or abusive work environment, see Williams v. General Motors

Corp., 187 F.3d 553 (6th Cir. 1999). If a plaintiff establishes a prima facie case of gender

discrimination, the burden of production shifts to the defendant to provide a legitimate,

nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

254-56 (1981); Humenny, 390 F.3d at 906.               If the defendant provides a legitimate,

non-discriminatory reason, the plaintiff must then produce evidence that the defendant’s proffered

reason is a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05

(1973); Humenny, 390 F.3d at 906.

       Even assuming that Reed can establish a prima facie case, the department is able to articulate

a legitimate, nondiscriminatory reason for Reed’s decommissioning, namely her negative fitness-for-

duty evaluation. Reed’s temporary decommissioning was based upon an independent evaluation of

Reed’s fitness for duty, conducted by Dr. Jeffries, who is not an employee of the department. Reed

provided the deposition testimony of Dr. Ruder to prove that Jeffries’ conclusion that Reed was unfit

for duty was in error. A disputed psychological report, however, does not prove that the police



       1
         Even if Reed could establish a prima facie case, her claim would fail because of her
negative fitness-for-duty evaluation, explained below.
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departments’ actions in relying on the report were pretext. Without an allegation that the police

department knew that the report was false, we cannot conclude that it was improper for the police

department to rely on it. For these reasons, we find that Reed has not carried her burden of

establishing a gender discrimination claim.

       A violation of Title VII is also established if “discrimination based on sex has created a

hostile or abusive work environment.” Williams, 187 F.3d at 560. To establish a prima facie case

of a hostile work environment based upon coworker harassment, Reed must establish that (1) the

sexual harassment was unwelcome, (2) the harassment was based on sex, (3) the harassing behavior

was sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or

any matter directly or indirectly related to employment, and (4) the employer knew or should have

known of the harassment and failed to take immediate and appropriate corrective action. Knox v.

Neaton Auto Prods. Mfg., 375 F.3d 451, 459 (6th Cir. 2004).

       To determine whether a work environment is “hostile” or “abusive,” we look at the totality

of the circumstances. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); see also Williams, 187

F.3d at 562. A plaintiff must establish both that the harassing behavior was “severe or pervasive”

enough to create an environment that a reasonable person would find objectively hostile or abusive,

and that he or she subjectively regarded the environment as abusive. Id.

       We find that Reed’s evidence does not establish a hostile work environment claim. The

costume party comment and the e-mails, while inappropriate and unprofessional, were not

sufficiently severe or pervasive to create a hostile or abusive work environment. Cf. Harris, 510

U.S. at 19 (hostile work environment claim sustained where supervisor made derogatory remarks
No. 07-5557
Reed v. Metro. Gov’t of Nashville and Davidson County
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about women’s intelligence, made female employees reach into his front pants pockets, and threw

things on the ground and asked female employees to pick them up); Williams, 187 F.3d at 559

(hostile work environment claim sustained where co-workers called plaintiff a “slut,” made overt

sexual references to her, touched her inappropriately, and played practical jokes on her). Finally,

there is no evidence that the comments and emails unreasonably interfered with Reed’s work

performance. For these reasons, we find that the district court correctly dismissed Reed’s Title VII

claims.

Americans with Disabilities Act (ADA)

          Reed also claims that she was decommissioned based on a perceived mental impairment.

The Americans with Disabilities Act prohibits discrimination against a “qualified individual with

a disability.” 42 U.S.C. § 12112(a). In order to establish a violation of the ADA, Reed must

establish that (1) she has a disability, as defined in the ADA; (2) she was qualified to perform the

essential functions of the position, with or without reasonable accommodation; and (3) she suffered

an adverse employment action because of her disability. McKay v. Toyota Motor Mfg., U.S.A. Inc.,

110 F.3d 369, 371 (6th Cir. 1997).

          Reed fails to make out a prima facie case under the ADA because once Dr. Jeffries deemed

her unfit for duty, she was no longer “qualified to perform the essential functions” of her position

as a patrol officer. See TENN . CODE ANN . § 38-8-106 (police officers must be free of all apparent

mental disorders to be qualified for job). The district court therefore correctly dismissed Reed’s

claims under the Americans with Disabilities Act.

Retaliation
No. 07-5557
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       Lastly, Reed asserts that the department retaliated against her by referring her to counseling

for speaking out against the offensive emails and conduct. Under Title VII, an employee is protected

against employer retaliation for opposing any practice that the employee reasonably believes

constitutes a violation of Title VII. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir.

2000). In the absence of direct evidence, retaliation claims are also governed by the McDonnell

Douglas burden-shifting framework. Weigel v. Baptist Hosp., 302 F.3d 367, 381 (6th Cir. 2002)

(citing McDonnell Douglas, 411 U.S. at 802). In order to state a claim for retaliation under Title VII,

a plaintiff must demonstrate that: (1) she engaged in protected activity; (2) the exercise of her

protected rights was known to the defendant; (3) the defendant consequently took an employment

action adverse to plaintiff; and (4) there was a causal connection between the protected activity and

the adverse employment action. See Fenton v. HiSAN, Inc., 174 F.3d 827, 831 (6th Cir. 1999). If

the plaintiff successfully establishes a prima facie case, the burden then shifts to the defendant to

articulate a legitimate, non-discriminatory reason for the adverse action. Burdine, 450 U.S. at 254-

56. The plaintiff may then seek to rebut the evidence by demonstrating that the articulated reason

was a mere pretext for discrimination. Id.

       Again, even if Reed could prove a prima facie case of retaliation, for the reasons set forth

above she has not shown that the department’s legitimate, nondiscriminatory reason for temporarily

decommissioning her on Dr. Jeffries’ recommendation was actually pretext for retaliation. Thus the

district court also correctly dismissed this claim.

                                                  III
No. 07-5557
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        For the reasons set out above, the district court correctly dismissed Reed’s claims for

discrimination based on age, gender, and perceived disability, as well as her retaliation claim. Dr.

Jeffries’ independent evaluation of Reed’s fitness for duty was sufficient justification for a temporary

decommission, and Reed has not shown that this report was pretext. Phillips’ remarks and emails

were not sufficient to establish a hostile work environment. We AFFIRM the judgment of the

district court.
