                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0798n.06

                                          No. 15-5320

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                     FILED
BARBARA GUNN,                                           )                   Dec 07, 2015
                                                        )               DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                             )
                                                        )
               v.                                       )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
SENIOR SERVICES OF NORTHERN                             )       COURT FOR THE EASTERN
KENTUCKY,                                               )       DISTRICT OF KENTUCKY
                                                        )
       Defendant-Appellee.                              )
                                                        )



BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; and CLELAND, District Judge.*

       GRIFFIN, Circuit Judge.

       Plaintiff Barbara Gunn was fired from her position as Executive Director of Senior

Services of Northern Kentucky after several years of operating the organization at a deficit. She

filed suit against defendant agency, claiming she was discharged because of her sex in violation

of federal and state anti-discrimination laws. The district court granted summary judgment in

favor of defendant, holding that plaintiff could not demonstrate that defendant’s legitimate, non-

discriminatory justification was a pretext for unlawful discrimination. We affirm.




       *
         The Honorable Robert H. Cleland, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 15-5320
Gunn v. Senior Servs. of N. Ky.


                                                 I.

       Senior Services of Northern Kentucky (“SSNK”) is a nonprofit corporation that, as the

name suggests, serves the senior citizen population of northern Kentucky. Its mission is to

enable local seniors to live dignified, independent lives. SSNK is governed by a Board of

Directors, which selects an Executive Director to handle the day-to-day operations of the agency.

Gunn served in that capacity beginning in September 2000, though at some point her title

changed to President and CEO.

       During Gunn’s tenure, SSNK began to operate at a deficit. In November 2006, four

months into its fiscal year, SSNK had a $101,000 operating deficit and a total consolidated

deficit of $140,000. In June 2008, SSNK reported a consolidated deficit of $155,738 and a

program services deficit of $81,653. Expecting additional decreases in revenue for 2009, the

SSNK Board stated at a June 26, 2008, committee meeting that its goal was for management “to

react to the cuts and achieve a balanced budget in 2009[.]” The committee meeting minutes also

made clear, “A loss in 2009 is not anticipated to be funded by the Endowment.”

       The “Endowment” was a source of disagreement between the Board and management,

and it is a focal point of this case. It is managed by a related entity, SCNK, Inc., and its sole

purpose is to serve as a “funding mechanism if funds [are] available, making sure SSNK, which

is the entity that provides the programs, can remain viable and continue to operate in this area.”

By 2007, the fund had grown to over $1,000,000. According to regulations established by the

SCNK Board of Directors, it would only distribute about five percent of the value of the

endowment to SSNK on an annual basis. In more recent years, however, SSNK began relying

more heavily on the endowment. By 2009, with the endowment declining due to poor market

conditions, SCNK indicated that “[it] d[id] not want to tap the fund regularly, but if a proper case

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Gunn v. Senior Servs. of N. Ky.


is presented, and monies are needed to continue operating, the intent of the endowment

document is to serve SSNK.”

       Despite the Board’s directive to achieve a balanced budget, by March of 2009, SSNK

was operating at a deficit of $93,000. SSNK’s deficit worsened in 2010. In April 2010, Gunn

reported a deficit of $125,206, with an estimated year-end deficit as high as $150,000. The

Board reiterated that “SSNK needs to balance the budget next year” and that “[t]he agency needs

to build a business model that is sustainable, expanding its reach, and philanthropic money

should be on top as a cushion.”

       In July 2010, Melissa Lueke became Chair of the SSNK Board and began in earnest to

hold Gunn accountable for the budget deficit. Days before she became Chair, Lueke emailed

Gunn, telling her that her number-one priority for Gunn and her staff was preparing a

“[b]alanced budget with realistic revenue figures.” On September 15, 2010, Lueke emailed

fellow Executive Committee members, reporting that she “asked [Gunn] to be in a position to

have a balanced budget to present at the Board Meeting” the following week. She continued, “I

am going to set the expectation that Barb have a plan for a balanced budget and an organizational

structure that will support the delivery of quality services by 9/30. . . . If Barb is not in a position

to deliver on this on 10/1, we, the executive committee, are going to have to start making the

decisions for Barb.”

       Nevertheless, by spring of 2011, SSNK continued to report budget deficits. At the

May 25, 2011, Executive Committee meeting, management reported an operating deficit of

$183,223 and a total consolidated deficit of $255,933. The forecasted year-end deficit for Fiscal

Year 2011 was $281,417. Looking ahead, management projected a $100,000 deficit for Fiscal

Year 2012. Despite the projected deficits, the Board “agreed SCNK, Inc. is not a possible

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Gunn v. Senior Servs. of N. Ky.


funding source at this time.” The Board reasoned that “[t]he agency is in its 4th year of an

operating deficit and needs to operate as a viable business at a break[-]even point on its own.”

The Board stressed that management needed to prepare a balanced budget by June 2011 and that

“[m]anagement of that budget [was] imperative.”

       Gunn presented SSNK’s budget for Fiscal Year 2012 at the next SCNK Board meeting

on July 26, 2011. She projected a slight surplus. In response, SCNK approved a $100,000 grant

to cover “SSNK operations through June 30, 2011, with the hope that the operating entity will

generate enough surplus to pay back the endowment fund in the future.”

       Unfortunately, that hope was not realized. At the October 26, 2011, meeting of the

SCNK Board and SSNK Executive and Finance Committees, management reported a deficit of

$92,000. Management stated that “SSNK needs SCNK, Inc. to help fund operations for FY12 to

break even.” Management also presented a preliminary audit report regarding SSNK’s finances,

which identified five major concerns relating to SSNK’s budget deficit.            In addition,

management advised the Executive Committee that, in order to receive a final unqualified

opinion from the auditor, the agency would need to explain where the needed revenue will come

from, as well as obtain a written commitment of funding from SCNK.             In response, the

Executive Committee made clear, “Expectations are for management to build a sustainable

business model so SSNK operates at a surplus, not a deficit.” Nevertheless, it agreed to request

$100,000 from the SCNK endowment for Fiscal Year 2012, and directed Gunn and her staff to

prepare a revised budget by the next month.

       The revised budget revealed that SSNK’s financial health was not improving. The

updated forecast for Fiscal Year 2012 was a $164,000 deficit. That signaled the end of Gunn’s

tenure at SSNK. On December 21, 2011, the Executive Committee decided to terminate Gunn’s

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No. 15-5320
Gunn v. Senior Servs. of N. Ky.


employment. At the next month’s board meeting, the Board voted unanimously to terminate

Gunn’s employment, effective immediately. In the same meeting, the Board selected Ken

Rechtin, the Director of Agency Services, to serve as Interim Executive Director. He served in

that role until June 16, 2014, when he was replaced by full-time Executive Director, Jay Van

Winkle.

       Gunn filed suit against SSNK alleging that her termination was sex-based discrimination

in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and Kentucky’s

corresponding state-law analogue, Ky. Rev. Stat. Ann. § 344.040(1)(a). After an opportunity for

discovery, SSNK filed a motion for summary judgment on both claims. Plaintiff opposed the

motion, claiming there were genuine disputes of material fact regarding whether defendant’s

articulated reason for terminating her was merely a pretext for sex-based discrimination. The

district court rejected plaintiff’s arguments and held that defendant was entitled to judgment in

its favor as a matter of law. Plaintiff timely appealed.

                                                 II.

       We review de novo the district court’s order granting summary judgment. CMACO Auto.

Sys., Inc. v. Wanxiang Am. Corp., 589 F.3d 235, 241 (6th Cir. 2009). Summary judgment is

warranted if, after viewing the evidence and drawing all reasonable inferences in the light most

favorable to the nonmoving party, the pleadings, the discovery and disclosure materials on file,

and any affidavits show “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), (c); CMACO Auto. Sys., Inc.,

589 F.3d at 241–42. A genuine dispute for trial exists “only when there is sufficient ‘evidence

on which the jury could reasonably find for the plaintiff.’” Baker v. City of Hamilton, Ohio,

471 F.3d 601, 605 (6th Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

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No. 15-5320
Gunn v. Senior Servs. of N. Ky.


(1986)). “The mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; the requirement is that there be

no genuine issue of material fact.” Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 281

(6th Cir. 2012) (quotation marks omitted).

                                               III.

       Title VII of the Civil Rights Act of 1964 makes it unlawful to “discharge any individual

. . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Kentucky state law

provides a nearly identical prohibition on discriminatory employment practices, Ky. Rev. Stat.

Ann. § 344.040(1)(a).1 When a claim of sex discrimination is built on circumstantial evidence,

as it is here, we use the three-step McDonnell Douglas burden-shifting framework for evaluating

the propriety of summary judgment. First, the plaintiff must establish a prima facie case of

discrimination; second, the burden shifts to the defendant to articulate a legitimate, non-

discriminatory reason for the adverse employment action; and third, the plaintiff must

demonstrate that the stated justification is merely pretext. Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252–53 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802, 804 (1973)).

       The parties in this case have taken the first two steps for us: defendant assumes for

present purposes that plaintiff has stated a prima facie case; and plaintiff acknowledges that

defendant has articulated two interrelated legitimate, non-discriminatory reasons for her

termination—operating under a growing deficit and failing to establish a sustainable business

       1
         Kentucky courts follow the federal courts’ reading of Title VII in interpreting § 344. See
Bank One, Kentucky, N.A. v. Murphy, 52 S.W.3d 540, 544 (Ky. 2001) (“This Court interprets
KRS 344.040 in consonance with federal anti-discrimination law.”). Therefore, our reasoning
applies equally to both of plaintiff’s claims.

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No. 15-5320
Gunn v. Senior Servs. of N. Ky.


model, which required SSNK to make withdrawals from SCNK’s endowment fund to meet

operating expenses. The parties dispute the third and final step—pretext.

       Under the third step of the McDonnell Douglas framework, the plaintiff must “prove by a

preponderance of the evidence that the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination.” Id. at 253. To establish pretext, the plaintiff

may show that (1) the employer’s stated reasons for terminating the employee have no basis in

fact, (2) the reasons offered for terminating the employee were not the actual reason for the

termination, or (3) the reasons offered were insufficient to explain the employer’s action.

Imwalle v. Reliance Med. Products, Inc., 515 F.3d 531, 545 (6th Cir. 2008). “[A] reason cannot

be a pretext for discrimination unless it is shown both that the reason was false, and that

discrimination was the real reason.” Seeger, 681 F.3d at 285 (alteration omitted) (quoting St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Thus, regardless of which rebuttal

method a plaintiff uses, “he always bears the burden of producing sufficient evidence from

which the jury could reasonably reject the defendant’s explanation and infer that the defendant

intentionally discriminated against him.” Id. at 285 (alterations omitted). Again, the parties have

honed our inquiry, focusing on the second and third avenues through which a plaintiff typically

demonstrates pretext. We address each in turn.

                                                 A.

       A plaintiff using the second approach to establish pretext must show that the proffered

reason “did not actually motivate the defendant’s challenged conduct.” Johnson v. Kroger Co.,

319 F.3d 858, 866 (6th Cir. 2003). Under this approach, “the plaintiff admits the factual basis

underlying the discharge and acknowledges that such conduct could motivate the dismissal, but

attacks the employer’s explanation ‘by showing circumstances which tend to prove an illegal

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No. 15-5320
Gunn v. Senior Servs. of N. Ky.


motivation was more likely than that offered by the defendant.’” Smith v. Leggett Wire Co.,

220 F.3d 752, 759 (6th Cir. 2000) (quoting Manzer v. Diamond Shamrock Chems. Co., 29 F.3d

1078, 1084 (6th Cir. 1994), overruled on other grounds by Geiger v. Tower Auto., 579 F.3d 614

(6th Cir. 2009)). “In other words, the plaintiff argues that the sheer weight of the circumstantial

evidence of discrimination makes it ‘more likely than not’ that the employer’s explanation is a

pretext, or coverup.” Id. (quoting Manzer, 29 F.3d at 1084). Plaintiff advances four arguments

for why defendant’s articulated justifications did not actually motivate its decision.

                                                  1.

       Plaintiff argues that there is a genuine dispute of material fact whether the growing deficit

actually motivated her termination. She points to evidence in the record showing that board

members praised her work as leader of SSNK. This evidence includes two performance reviews

in 2006 and 2009 indicating Gunn was performing satisfactorily; several salary increases based

on merit; and a handful of communications from board members between May 2008 and May

2011 praising Gunn’s work.

       This evidence does not create a genuine dispute regarding whether defendant’s

performance-based justification actually motivated its decision to fire Gunn in December 2011.

As the district court correctly noted, most of the evidence predates the period in which SSNK’s

financial health deteriorated considerably. Therefore, they have little bearing on whether the

Board’s later justification actually motivated its decision to terminate Gunn’s employment. See

Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 597 (6th Cir. 2007) (holding that the

plaintiff’s “positive performance review” did not demonstrate pretext because it “occurred prior

to the events that [the defendant] proffers as justification for placing [the plaintiff] on leave”).



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Gunn v. Senior Servs. of N. Ky.


       Plaintiff contends that this reasoning overlooks praise-worthy statements from

Chairwoman Lueke in May and July 2011. In May 2011, Gunn circulated an agency-wide

newsletter in which she wrote, “We are continuing to restructure and adjust our staffing pattern

to reduce our current deficit.” Lueke emailed Gunn in response, “Nice Job!” Lueke gave similar

praise to Gunn at the July 2011 board meeting at which Gunn presented a projected budget

surplus of nearly $3,000, “commend[ing] the staff for their work to achieve a balanced budget.

It is a huge step forward.” But these laudatory remarks were in response to Gunn’s promising

forecast about the fiscal year ahead. When it came to delivering on that projection, however,

Gunn’s performance fell short. Four months into the fiscal year for which Gunn predicted a

budget surplus, SSNK was operating a six-figure deficit. It is entirely consistent for Lueke and

the Board to praise plaintiff for positive forecasts and then hold her accountable for failing to

actually achieve results. Because Lueke’s remarks did not occur during the fall of 2011 (the

period when SSNK’s finances steeply declined despite a positive forecast presented by Gunn just

months before), they do not demonstrate that defendant’s stated justification was pretext.

       In a related vein, plaintiff argues that the financial audit conducted in 2011 showed that,

as of June 30, 2011, the auditor was able to give a favorable opinion of the agency’s financial

state. This, Gunn argues, is additional evidence that her handling of the budget did not actually

motivate the decision to fire her.     In fact, the record shows that the auditor presented a

preliminary report in October 2011, flagging five areas of concern; management also indicated

that, in order to obtain an unqualified, favorable opinion, SSNK would have to obtain additional

revenue from SCNK and a written commitment for future funding. In other words, the auditor

was only able to provide an unqualified opinion in February 2012, after the SSNK Board

requested funds from the endowment, something the Board was previously disinclined to do

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No. 15-5320
Gunn v. Senior Servs. of N. Ky.


without a sustainable business model. Rather than raise the inference of pretext, the series of

events surrounding the financial audit only reinforces the narrative that Gunn was unable to meet

the Board’s performance expectations, i.e., resolve the agency’s fiscal problems without drawing

from the endowment fund.

                                                   2.

       Plaintiff also argues that the budget deficit was a consequence of circumstances outside

of her control and that a sustainable business model without help from the endowment was

impossible.    The SSNK Board knew this, plaintiff says, yet established a performance

expectation on October 26, 2011, for her to build a sustainable business model.         Plaintiff

contends that the Board’s expectation to solve the budget deficit in two months creates an issue

of fact as to whether she was “set up to fail.”

       Plaintiff’s set-up-for-failure argument is based on the incorrect premise that the Board

first set its expectation for a sustainable business model in October 2011 and that she had only

two months to achieve that goal. The record shows that, as early as 2008, the Board was

working with Gunn to build a sustainability plan. In June 2008, the SSNK Board established a

timeline for implementing its sustainable business model, which included balancing the budget

in 2009, establishing a delivery model by 2011, and growing the agency through to 2013. The

Board reiterated its expectation for a balanced budget without assistance from the endowment

over the course of the next several years. In April 2010, the SSNK Board agreed that “SSNK

needs to balance the budget by next year” and that “[t]he agency needs to build a business model

that is sustainable, expanding its reach, and philanthropic money should be on top as a cushion.”

And in May 2011, the Board concluded that “SCNK, Inc. is not a possible funding source at this



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No. 15-5320
Gunn v. Senior Servs. of N. Ky.


time. The agency is in its 4th year of an operating deficit and needs to operate as a viable

business at a break[-]even point on its own.”

       It is beyond dispute that the Board consistently expressed its expectation for achieving a

sustainable business model, as well as its aversion for requesting distributions from SCNK to

achieve that goal.   It is equally undisputed that Gunn knew her task was to implement a

sustainable business model to achieve a balanced budget. Plaintiff herself testified during her

deposition, “That was always a part of the job of the executive director.” In short, October 2011

was not the beginning, but the end, of the Board’s campaign to work with Gunn to build a

sustainable business model. We disagree with plaintiff that the timeline or reasonableness of the

Board’s expectations creates an inference of pretext.

                                                 3.

       Plaintiff also seeks to demonstrate pretext by showing that the Board failed to follow the

organization’s progressive disciplinary procedures, which included verbal counseling, written

warnings, suspension, and finally, termination. She argues that the disciplinary procedures

applied to her and that the organization followed this protocol for male employees, but not her.

Defendant disputes that the disciplinary procedures even applied to Gunn as President and CEO.

We need not resolve this dispute because, even if the disciplinary procedures applied to Gunn on

some modified basis, the record demonstrates that she received numerous verbal and written

warnings about her failure to meet performance expectations.2


       2
         We harbor serious doubts whether plaintiff’s bare assertion that the policy applied to her,
without any additional support in the record, creates a genuine dispute of fact. See Kyle-Eiland
v. Neff, 408 F. App’x 933, 943 (6th Cir. 2011) (“[The summary judgment standard] does not
require that all bald assertions, opinions, or even genuinely held beliefs asserted by the
nonmoving party be adopted wholeheartedly by a court, even when such assertions are
completely unsupported by the record.”). The policy itself states that “[t]he Executive Director[]
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Gunn v. Senior Servs. of N. Ky.


       At various board and committee meetings—the setting one would reasonably expect such

verbal counseling and written warnings to an organization’s chief executive officer to take

place—the Board repeatedly emphasized to Gunn the importance of achieving a balanced

budget. This emphasis carried over to private communications between board members and

Gunn, as evidenced by various email communications in the record. Plaintiff acknowledged

during her deposition that she knew the Board expected her to build a sustainable business model

and that achieving a balanced budget was her responsibility as President and CEO.

       Furthermore, although failure to follow internal disciplinary procedures can be evidence

that an employee’s poor performance was not the real reason for her termination, see Macy v.

Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 369 (6th Cir. 2007), abrogated on other grounds

by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012) (en banc), not every

technical failure to follow disciplinary protocol is necessarily evidence of pretext. See White v.

Columbus Metro. Hous. Auth., 429 F.3d 232, 246 (6th Cir. 2005) (holding that evidence that the

defendant circumvented its own policies did not demonstrate pretext, in part because the

departures were “minor”); see also Macy, 484 F.3d at 369. An employer’s failure to follow

internal disciplinary protocols is most probative when coupled with evidence that the employer

followed the protocols for people outside of plaintiff’s protected class.       Felder v. Nortel

Networks Corp., 187 F. App’x 586, 595 (6th Cir. 2006). In this case, plaintiff baldly asserts that

SSNK applied its disciplinary policy to male employees, but cites no evidence in the record to

support her claim, especially with respect to others under direct supervision of the Board. Such



reviews and approves all recommendations for termination prior to any final action . . . .”
Plaintiff admitted during her deposition that she would not approve her own termination, which
would logically render this procedure inapplicable to someone in her position. Nevertheless, we
conclude plaintiff’s argument fails for the alternative reasons stated above.
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Gunn v. Senior Servs. of N. Ky.


“conclusory and unsupported allegations, rooted in speculation,” are insufficient to create a

genuine dispute of material fact for trial. Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir.

2003); see also Chappell v. GTE Products Corp., 803 F.2d 261, 268 (6th Cir. 1986) (“Mere

personal beliefs, conjecture and speculation are insufficient to support an inference of . . .

discrimination.”).   For these reasons, plaintiff has failed to demonstrate that the Board’s

purported failure to follow SSNK’s disciplinary protocol is evidence of pretext for gender-based

discrimination.

                                                 4.

       Plaintiff next argues that the changing nature of defendant’s articulated reason for

termination shows that its stated justification did not actually motivate her termination.

       When Lueke initially informed Gunn of her termination on December 27, 2011, she said

that the Board lost confidence in Gunn’s ability to lead the agency. When pressed for specifics,

Lueke listed the fact that she had not consolidated SSNK’s offices and could not make decisions

without assistance from the Board or consultants. Several weeks later, Lueke told Gunn that her

termination was a “performance issue.” In response to this lawsuit, SSNK stated that the reason

for Gunn’s termination was because SSNK operated under a growing budget deficit for five

years, and Gunn failed to establish a sustainable business model, requiring SSNK to draw from

the SCNK endowment to meet operating expenses.             According to plaintiff, these evolving

justifications demonstrate pretext.

       “An employer’s changing rationale for making an adverse employment decision can be

evidence of pretext.” Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002).

However, amplifying the core reason that initially drove the employer to discharge an

employee—here, the Board’s loss of confidence in Gunn’s leadership—with additional, but

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Gunn v. Senior Servs. of N. Ky.


consistent, non-discriminatory reasons does not constitute “shifting justifications.” Alexander v.

Ohio State Univ. Coll. of Soc. Work, 429 F. App’x 481, 489–90 (6th Cir. 2011) (per curiam).

Here, no inference of pretext is warranted because each of SSNK’s stated reasons is consistent

with the others, and all relate to the same basic concept: plaintiff failed to adequately perform as

President and CEO. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 351 (6th

Cir. 1998).   Because there is no material inconsistency in SSNK’s articulated reasons for

terminating plaintiff’s employment, this evidence is insufficient to raise an inference of pretext.

                                                 B.

       Finally, under the third approach to establishing pretext, plaintiff argues that her failure to

cut the deficit was insufficient to warrant firing her because similar action was not taken against

a similarly-situated employee.      Under this method of establishing pretext, plaintiff must

demonstrate that other employees outside of her protected class were not fired, even though they

were similarly situated and engaged in substantially identical conduct to that which the employer

contends motivated its decision.      Smith, 220 F.3d at 762.       To be similarly situated, “the

individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the

same supervisor, have been subject to the same standards and have engaged in the same conduct

without such differentiating or mitigating circumstances that would distinguish their conduct or

the employer’s treatment of them for it.”       Ercegovich, 154 F.3d at 352.         Although exact

correlation is not required, “the plaintiff and the employee with whom the plaintiff seeks to

compare himself or herself must be similar in all of the relevant aspects.” Smith, 220 F.3d at 762

(quotation marks omitted).

       Gunn argues that she was treated differently than her successor, Ken Rechtin, who also

failed to eliminate the deficit, yet continued in his position for nearly thirty months. Gunn’s

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Gunn v. Senior Servs. of N. Ky.


comparison is not apt. First, although SSNK is still operating with a budget deficit, Rechtin cut

the deficit considerably.   Whereas, the consolidated deficit for the year prior to Rechtin’s

promotion was over $200,000, the deficit dropped to $65,000 under Rechtin’s leadership, with a

projected deficit for the upcoming fiscal year of only $14,000. Rechtin’s performance differs

tangibly from that of Gunn’s, removing a necessary premise from which to draw an inference of

pretext. See Seay v. Tennessee Valley Auth., 339 F.3d 454, 479 (6th Cir. 2003) (holding that

fellow employees were not “similarly situated” for purposes of disparate treatment claim because

they engaged in different conduct, justifying differential treatment). Because Rechtin did not

engage in “substantially identical conduct to that which [SSNK] contends motivated its discharge

of [Gunn],” i.e., operating under a growing deficit, his continued employment does not create an

inference of discrimination regarding plaintiff’s termination. Smith, 220 F.3d at 762.

                                               IV.

       “Time and again we have emphasized that [o]ur role is to prevent unlawful [employment]

practices, not to act as a super personnel department that second guesses employers’ business

judgments.” Corell v. CSX Transp., Inc., 378 F. App’x 496, 505 (6th Cir. 2010) (first alteration

in original). The evidence cited by plaintiff shows an organization struggling to make ends meet,

a Board of Directors looking to their chief executive for answers, and an executive who was

ultimately unable to produce tangible results.        It does not, however, demonstrate pretext.

Therefore, we affirm the district court’s grant of summary judgment.




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