                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0178n.06

                                          No. 09-5213

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
PATRICIA SPECK,                                         )                        Mar 22, 2010
                                                        )                  LEONARD GREEN, Clerk
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
CITY OF MEMPHIS,                                        )    THE WESTERN DISTRICT OF
                                                        )    TENNESSEE
       Defendant-Appellee.                              )
                                                        )
                                                        )
                                                        )



       Before: MOORE and KETHLEDGE, Circuit Judges; and BERTELSMAN, District Judge.*

       KETHLEDGE, Circuit Judge. Patricia Speck appeals the district court’s grant of summary

judgment in favor of the City of Memphis on Speck’s claims of age discrimination. We affirm.

                                                I.

       Speck worked as Coordinator of Nursing Services at the Memphis Sexual Assault Resource

Center (MSARC) starting in 1989. She alleges that her managers accused her of violating city

policy, unfairly criticized her work performance, failed to intervene in co-worker harassment, and

otherwise interfered with her ability to work. Speck says that she complained about this treatment

but that the situation never improved.



       *
        The Honorable William O. Bertelsman, United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 09-5213
Speck v. City of Memphis




       The conflict escalated when, in July 2004, Speck took leave from work under the Family and

Medical Leave Act (FMLA) due to a heart condition that she says was caused by the incidents at

work. Initially Speck’s doctor restricted her to two days per week of work for three to four months.

Speck continued to work more than 16 hours per week, however, because MSARC manager Julie

Coffey told Speck “there will be a consequence” if she failed to ensure that all open nursing shifts

were covered. During this time Speck also requested vacation time to attend an International

Association of Forensic Nurses (IAFN) conference in Chicago at which, as President of the

association, she had a number of duties. Coffey denied the request. Apparently another nurse,

Rachel Copeland—who was under 40 years old—was allowed to travel to an IAFN conference,

although the record is unclear whether this was the same conference or a later one. Unlike Speck,

however, Copeland was not on medical leave when she made her request to attend the conference.

       Speck says her heart condition then worsened, which she attributes to the stress these

management actions caused. Although Speck was scheduled to return to full duty in October 2004,

her doctor instead designated her as unable to work at all and placed her on continuous FLMA leave.

Accordingly, Speck did not return to work. While on full medical leave, Speck traveled to the

Chicago IAFN conference—the same conference for which the City had denied Speck’s vacation-

time request. City policy required employees on medical leave to inform their supervisors of their

“convalescent location”—defined as “the employee's residence or other location approved by the



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Speck v. City of Memphis

employee's designated supervisor.” The City found that Speck had violated that policy because she

did not obtain advance permission to change her convalescent location and travel to Chicago.

        On May 23, 2005, Speck informed a supervisor, Michael Gray, that she would travel again

for a wedding and another nursing conference. Gray told Speck that prior approval was necessary

and that he would deny any such request. He also warned her that the City might terminate her if

she violated the sick-leave policy again. Speck resigned two days later.

        After Speck’s resignation, the City temporarily hired Copeland to fill her position. Speck

says that she did not believe her treatment was age-related until she found out that Copeland had

replaced her.

        Speck filed a discrimination charge with the EEOC, which issued a right-to-sue letter. Speck

later filed this suit, alleging that the City had subjected her to a hostile-work environment, forced her

to resign, and retaliated against her for complaining about her supervisors’ conduct, all in violation

of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. The City moved

for summary judgment on her claims, which the district court granted. This appeal followed.

                                                   II.

        We review de novo a district court’s grant of summary judgment, viewing the evidence in

the light most favorable to the nonmoving party. Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th

Cir. 2009). Summary judgment is appropriate when “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).



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No. 09-5213
Speck v. City of Memphis

        To assert a claim of age discrimination under the ADEA, a plaintiff must produce evidence

that the employer’s actions were because of age. See 29 U.S.C. § 623(a)(1). To assert a retaliation

claim, a plaintiff must also show that she complained about age-based discrimination. See 29 U.S.C.

§ 623(d). Although for each claim the district court focused its inquiry on Speck’s prima facie case,

we may affirm on any ground supported in the record. See Ley v. Visteon Corp., 543 F.3d 801,

805-06 (6th Cir. 2008).

        Speck first claims that the City constructively discharged her by creating intolerable working

conditions. Because Speck offers only circumstantial evidence to support this claim, we apply the

framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Geiger v.

Tower Automotive, 579 F.3d 614, 622 (6th Cir. 2009). Under that framework, if the plaintiff

establishes a prima facie case of discrimination, the burden shifts to the defendant to produce a

legitimate, non-discriminatory explanation for its decision. McDonnell Douglas, 411 U.S. at 802-05.

If the defendant produces such an explanation, the plaintiff then has the burden to show that the

explanation is a pretext. Id. To establish pretext, a plaintiff must show the stated reason (a) had no

basis in fact, (b) was not the actual reason, or (c) was insufficient to explain the employer’s actions.

Corrigan v. United States Steel Corp., 478 F.3d 718, 728 (2007). Essentially, the plaintiff must

show that the employer’s “‘business decision’ was so lacking in merit as to call into question its

genuineness.” Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996) (quoting Dister v. Cont'l Group,

Inc., 859 F.2d 1108, 1116 (2d Cir. 1988)).

        We need not decide whether Speck made out a prima facie case because she has not, in any

event, produced evidence that the City’s reasons for its actions were pretextual. The only adverse

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Speck v. City of Memphis

action taken by the City within the 300-day EEOC filing period—and thus the only one we may

consider for this claim—was its May 23, 2005 denial of Speck’s travel request. See Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002) (“[D]iscrete discriminatory acts are not

actionable if time barred, even when they are related to acts alleged in timely filed charges”); Amini

v. Oberlin College, 259 F.3d 493, 498 (6th Cir. 2001) (holding that in a state with its own

employment-discrimination laws, like Tennessee, a plaintiff must file a complaint with the EEOC

within 300 days of an alleged discriminatory act). The City explained that it denied the travel request

based on its policy that she remain at her convalescent location unless granted prior permission to

travel. Speck has not produced evidence to show that this reason was pretextual. That a younger

worker was hired after Speck resigned is not alone sufficient to show that applying city policy was

not the actual reason for denying the request. See Chappell v. GTE Products Corp., 803 F.2d 261,

267 (6th Cir. 1986). Nor does the fact that the City allowed Copeland, but not Speck, to travel to

an IAFN conference show pretext. Speck and Copeland were not similarly situated in at least one

key respect: Speck was on sick leave, while Copeland was not. Cf. Ercegovich v. Goodyear Tire &

Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998) (holding that a plaintiff making a prima facie

discrimination case must show she was similarly situated in all relevant aspects).

       Although Speck cites no legal authority on the statute-of-limitations issue, her arguments rely

on a number of incidents dating back to 2002, not just those within the 300-day limitation period.

Speck therefore implies that we should analogize a constructive-discharge claim to a hostile work-

environment one, where the pattern of harassment constitutes a single act for filing-deadline

purposes. Cf. Morgan, 536 U.S. at 110. We need not decide this question either, because

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No. 09-5213
Speck v. City of Memphis

considering even Speck’s full history with the City, the record lacks evidence of pretext. For each

action the City took, it cited a city policy or a facially legitimate business reason. And for each

incident, Speck has not produced evidence creating a genuine issue as to whether the reasons the City

proffered were pretextual. See Corrigan, 478 F.3d at 728.

       We should add that much of the City’s conduct towards Speck appears regrettable. Based

on Speck’s side of the story, at least, her managers appear to have been rather harsh in their

enforcement of the City’s policies. But the statute proscribes age discrimination, not harsh

enforcement of policies that themselves do not discriminate based on age. Speck lacks evidence of

the former. Her claim therefore fails.

       Speck next claims that her supervisors’ actions created a hostile work environment for her.

For purposes of hostile work-environment claims, repeated harassment constitutes a single act of

discrimination. Morgan, 536 U.S. at 115-18. A court may therefore consider all related acts so long

as one incident falls within the 300-day filing period. Id. But this claim too requires a plaintiff to

show that the harassment was “based on age[.]” Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834

(6th Cir. 1996). Speck does not have evidence creating a genuine issue that she was harassed based

upon her age.

       Finally, Speck presents a retaliation claim. She alleges that, in retaliation for her complaints

about her treatment, her supervisors created conditions that forced her to resign. But a plaintiff

claiming retaliation must show, among other things, that she engaged in activity protected under anti-

discrimination law. Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007) (“In order to

receive protection under the ADEA, a plaintiff’s expression of opposition must concern a violation

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No. 09-5213
Speck v. City of Memphis

of the ADEA”). Thus, Speck “must have referenced alleged acts of age discrimination” by the City

to maintain her retaliation claim. See id. (emphasis added). Speck produced no evidence that she

ever mentioned age discrimination in any of her complaints before resigning. She complained about

being targeted for unfair treatment, but not about being targeted because of her age. This claim

therefore fails as well.

        The judgment of the district court is affirmed.




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No. 09-5213
Speck v. City of Memphis

       KAREN NELSON MOORE, dissenting in part and dissenting in judgment. I disagree

with the majority’s resolution of Patricia Speck’s constructive-discharge and hostile-work-

environment claims. Because the majority improperly limits its consideration of Speck’s probative

evidence and because triable issues remain with regard to both claims, I would reverse the summary

judgment of the district court and remand for further proceedings.

       In analyzing Speck’s claim of constructive discharge, the majority mistakenly restricts its

analysis of whether Speck suffered an adverse employment action to the City’s denial of Speck’s

request to change her convalescence location. In the case of a constructive discharge, however, “the

actionable conduct is not a discrete, identifiable act” that occurs prior to an employee’s resignation,

such as the City’s denial of Speck’s request, but instead the actionable wrong is that an employer has

“intentionally create[d] an intolerable work atmosphere that forces an employee to quit

involuntarily.” Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000); see also Draper v.

Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998); Chapman v. Carmike Cinemas, 307 F.

App’x 164, 174 (10th Cir. 2009) (unpublished opinion).

       Speck’s constructive discharge occurred when she resigned on May 27, 2005, which is the

date that her cause of action accrued. Mayo v. Kenwood Country Club, Inc., No. 97-4007, 1998 WL

863624, at *2 (6th Cir. Nov. 23, 1998) (unpublished opinion); accord Flaherty, 235 F.3d at 138–39

(citing Draper, 147 F.3d at 1110). Although acts or events occurring outside the 300-day statute of

limitations are not themselves separately actionable, we must consider those events when

determining if the last actionable conduct—the alleged constructive discharge—was the product of

discriminatory behavior. Cf. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“Nor

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No. 09-5213
Speck v. City of Memphis

does the statute bar an employee from using the prior acts as background evidence in support of a

timely claim.”); Wells v. New Cherokee Corp., 58 F.3d 233, 236 (6th Cir. 1995) (noting that the

plaintiff “may offer” a defendant’s time-barred “conduct as evidence of its motivation for eventually

firing” the plaintiff). As aptly stated by another panel of this court, a plaintiff may prove a “claim

of constructive discharge with evidence of events occurring prior to” the statute of limitations cut

off because “[s]tatutes of limitations apply to claims, not the evidence supporting the claims.” Boggs

v. Kentucky, No. 95-6452, 1996 WL 673492, at *2 (6th Cir. Nov. 20, 1996) (unpublished opinion)

(citing Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 482–83 (6th Cir.

1987)). The majority misconstrues the denial of Speck’s request to change her convalescence

location as the sum of Speck’s constructive-discharge claim. That action, however, was only one

of many facts that Speck argues forced her to resign, and it is her ultimate resignation that forms the

basis of Speck’s claim.

       Considering the totality of Speck’s circumstantial evidence and viewing the facts in the light

most favorable to Speck, I believe that Speck has raised triable issues regarding whether she was

constructively discharged. Although the City attempts to justify its treatment of Speck leading up

to her resignation as the product of legitimate and non-discriminatory exercises of its disciplinary

and policy-enforcement powers, I believe that Speck has presented sufficient evidence to allow a jury

to reject the City’s explanations as pretextual and to conclude that the real reason for the City’s

actions was a discriminatory one. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521 (6th Cir.

2008); Logan v. Denny’s, Inc., 259 F.3d 558, 568–69 (6th Cir. 2001). Although the mere

replacement of Speck with a younger worker is not sufficient alone to establish pretext, Speck was

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Speck v. City of Memphis

replaced with a younger woman whom Speck had recruited and trained, a fact from which a jury

could reasonably conclude that the City was not concerned with Speck’s methodology or work but

instead that the City possessed an “out with the old, in with the new” mentality. There is also

evidence that the City attempted to hide the fact that Speck’s younger former student was, in fact,

Speck’s replacement. Because the City feared that “there may be a lawsuit,” it expressly forbade

Speck’s replacement from using a job title that revealed that she had assumed Speck’s

responsibilities. Dist. Ct. Docket (“Doc”) 73-7 ( Pl. Resp. Mot. Summ. J. at 14). Viewed in the light

most favorable to Speck, a jury could conclude from this evidence that the City’s actions were for

an illegitimate, age-based reason.

        The pretextual nature of the City’s actions is also reflected by the fact that the justification

for the City’s denial of Speck’s request to change her convalescence location—the act that

immediately preceded her resignation and the action upon which the majority relies—as well as the

reasons behind the other disciplinary actions the City took against Speck are “so lacking in merit as

to call into question [their] genuineness.” Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996) (internal

quotation marks omitted). Specifically focusing on Speck’s request to change her convalescence

location, as the majority does, the record indicates that Speck timely submitted the request in

accordance with City policy, and the City was aware that Speck’s physician had not restricted her

travel. The City denied the request, but it provided no justification other than the fact that Speck had

failed to show “that the proposed convalescent locations [we]re medically necessary and directly

related to [her] Medical condition.” Doc. 66-23 (Def. Mot. Summ. J.). Notably, however, the City

did not reference any City policy that required Speck to establish such a fact, and the policy the City

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No. 09-5213
Speck v. City of Memphis

did reference contains no such requirement. Granting Speck’s request would have cost the City

nothing. Speck proposed using her previously accrued vacation time, and because she was already

on permanent medical leave, Speck would have been unable to work even if the City had demanded

her presence at the clinic during the time of her proposed travel. What is perhaps most troublesome

about the City’s denial of Speck’s request, however, is that the request covered a weekend trip that

would have taken place on Speck’s personal time. The City exercised its authority to administer its

policies in a manner that inserted the City into every moment of Speck’s life, essentially confining

her to her home because it believed simply that it could. Given what amounted to a “stay at home

or be fired” ultimatum, it is not surprising that Speck resigned.

       Moreover, for approximately two years after a flawless fifteen-year tenure, the City began

repeatedly charging Speck with violations of City policy, including the misappropriation of funds;

making false statements; incompetence; filing false claims for sick-leave benefits; hindering the

operation of the City through absenteeism, regardless of the reason; insubordination; and

misrepresenting her role. The City ultimately determined that many of the charges were baseless,

and the record indicates that the lack of foundation of the charges, in many instances, was plainly

apparent from evidence in the City’s possession before it levied the charges. The City’s harassment

of Speck continued even after she took permanent medical leave. During that time, the City

continued to bother Speck about her absenteeism and her failure to complete her job requirements.

The City even charged her with insubordination for failing to accept various assignments from her

supervisors, despite the fact that Speck had completed one of the assignments and was unable to

accomplish the others because of her documented medical leave. A reasonable jury could conclude

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No. 09-5213
Speck v. City of Memphis

that there was no purpose for the City’s actions other than to encourage Speck to leave her

employment. Once she did, the City immediately replaced Speck with a younger worker, and

attempted to do so covertly.

       Contrary to the majority’s characterization, then, this is not a case where evidence of pretext

is confined to the fact that Speck was replaced by a younger employee. That fact, coupled with the

City’s attempt to conceal the identity of Speck’s replacement, the baseless denial of Speck’s travel

request, and the questionable justification behind the City’s various disciplinary actions, together

present sufficient evidence to allow a jury to reject the City’s rationale for taking the actions that

culminated in Speck’s resignation and to conclude that she suffered age-based discrimination in her

employment.

       I further believe that Speck has presented a triable issue as to whether she suffered a hostile

work environment based on age. See Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834–35 (6th Cir.

1996). As outlined above, the City’s harassment of Speck was frequent, severe, and had extreme

consequences for Speck’s physical health. Again, not only was Speck replaced by a younger worker,

but the City attempted to conceal that fact from Speck, and I believe that this is sufficient evidence

to allow a reasonable jury to conclude that the City’s harassment of Speck was age based.

       The manner in which the City treated Speck, only partially outlined above, was suspect. The

record suggests that Speck is a capable forensic nurse who has provided beneficial service in her

field for the City of Memphis and nationally, and based on the record before us, I believe that Speck

has raised triable issues regarding whether she was constructively discharged and subjected to a

hostile work environment based on her age in violation of the ADEA. Viewing the record in the

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No. 09-5213
Speck v. City of Memphis

light most favorable toward Speck, as we must in evaluating the summary-judgment motion of the

City, I would reverse the district court’s grant of summary judgment, and I must respectfully dissent.




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