                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0316n.06

                                            No. 14-2137

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

PATSY BORUM,                       )
                                                                                 FILED
                                                                              May 01, 2015
                                   )
                                                                        DEBORAH S. HUNT, Clerk
      Plaintiff-Appellant          )
                                   )
v.                                 )                           ON APPEAL FROM THE
                                   )                           UNITED STATES DISTRICT
ILLINOIS CENTRAL RAILROAD COMPANY; )                           COURT FOR THE EASTERN
SUBSIDIARIES; COLIN MCKELVIE,      )                           DISTRICT OF MICHIGAN
                                   )
      Defendants-Appellees.        )
                                   )

          Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

          KETHLEDGE, Circuit Judge. Patsy Borum sued her employer, Illinois Central Railroad

Company, and her supervisor, Colin McKelvie, for alleged employment discrimination in

violation of Michigan law. The district court granted summary judgment to the defendants. We

affirm.

                                                I.

          Since 1974, Borum has worked for Illinois Central Railroad—which is a subsidiary of a

Canadian company—in the Railroad’s office in Troy, Michigan.          Borum, who is African-

American, sued the Railroad for employment discrimination in 1999 after a supervisor revoked

her promotion.     Two years later, she entered a confidential settlement agreement with the

Railroad. Under the agreement, the Railroad created a new management position for Borum and

promised that she would remain a Railroad employee at her current pay grade or higher so long

as she could competently perform her job.
No. 14-2137, Borum v. Illinois Central Railroad Co.


       McKelvie became Borum’s supervisor in 2010. Two years later, McKelvie’s boss, Mark

Zunti—with input from McKelvie—decided to eliminate Borum’s position and transfer her

duties to Colleen Cameron. Cameron is a white, Canada-based employee who has worked for

the Railroad for 25 years.     Sometime around January 12, 2012, McKelvie and a Human

Resources employee, Todd Taylor, met with Borum to tell her that her position was being

eliminated. McKelvie told Borum that the decision was not based on her performance, but rather

was made to reduce costs and increase staffing efficiencies. Taylor told Borum that she could

choose one of three options: retire, transfer to a clerical position, or spend up to 60 days looking

for a new management position within the Railroad. Borum asked if the Railroad’s decision

violated her settlement agreement. Neither Taylor nor McKelvie knew about the agreement, but

Taylor promised to investigate. Borum said that she would let them know which option she

chose after she heard back from Taylor.

       Over the next few days, McKelvie told Borum’s employees that Borum’s position had

been eliminated and made plans for Cameron to visit the Troy office.             With McKelvie’s

permission, Borum spent that time cleaning out her office (she was paid for those days). Two or

three days after their conversation with Borum, Taylor told Zunti and McKelvie that they could

not eliminate Borum’s position because doing so would violate her settlement agreement.

McKelvie then informed Borum, Borum’s staff, and Cameron that the Railroad had reversed its

decision to eliminate Borum’s position. Borum thereafter continued to do the same job that she

had done before.

       In June 2013, Borum sued the Railroad and McKelvie for employment discrimination

under Michigan’s Elliott-Larsen Civil Rights Act.          She alleged that the defendants had

discriminated against her on the basis of race by eliminating her position, and that they



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No. 14-2137, Borum v. Illinois Central Railroad Co.


eliminated her position in retaliation for her previous civil-rights lawsuit and for other

discrimination reports she had made in 2011. The district court granted the defendants’ motion

for summary judgment. This appeal followed.

                                               II.

       We review de novo the district court’s grant of summary judgment to the defendants.

Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). Summary judgment is

proper when there is no genuine dispute of material fact, and the moving party is entitled to

judgment as a matter of law. Id.

                                               A.

       Borum first argues that the district court erred in granting summary judgment to the

defendants on her discrimination claim.       Under Michigan law, a plaintiff may prove a

discrimination claim using circumstantial evidence under the McDonnell-Douglas burden-

shifting framework. See Hazle v. Ford Motor Co., 628 N.W.2d 515, 520 (Mich. 2001). The

plaintiff must first establish a prima-facie case from which a factfinder can infer that the

defendants unlawfully discriminated against her. Id. To establish a prima-facie case of race

discrimination, Borum must show, among other things, that she suffered an adverse employment

action. Id. at 521. An adverse employment action is a “materially adverse change in the terms

and conditions of employment,” such as termination, a demotion accompanied by a salary

decrease, or a material loss of benefits or responsibilities. Bowman v. Shawnee State Univ.,

220 F.3d 456, 461-62 (6th Cir. 2000) (internal quotation marks omitted).         De minimis

employment actions, such as “temporary actions or where further remedial action is moot and no

economic loss occurred,” do not qualify. Id. at 462.




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No. 14-2137, Borum v. Illinois Central Railroad Co.


       Here, Borum was told that her position was being eliminated, but that decision was

reversed two or three days later. During those days, Borum’s position was not in fact eliminated

and Borum did not in fact choose among the three options (two of which involved potentially

staying with the Railroad) that Taylor had given her. Moreover, she continued to go to the

office, was paid during those days, and resumed the same job with the same title after the

decision was reversed. Thus, the undisputed record shows that Borum’s employer made only an

unexecuted decision—reversed approximately 48-hours later—to eliminate Borum’s position,

and that Borum did not experience any materially adverse change in the terms or conditions of

her employment. Borum therefore did not suffer an adverse employment action. See, e.g., id.

(holding that temporary loss of position was not an adverse employment action when plaintiff

lost no money and remained employed full-time, and the decision was reversed in ten days).

       Borum responds that we should assume that the Railroad terminated her employment

because McKelvie told her that her position was eliminated and her employment status was

unclear for three days. “But our inquiry is practical, not metaphysical.” Reeves v. Tenn.

Farmers Mut. Ins. Co., 555 F. App’x 509, 512 (6th Cir. 2014).           Even if Borum’s exact

employment status was unclear for three days, the undisputed evidence showed that she did not

experience any material change to her employment during those three days.           “[W]hen an

otherwise adverse employment action is rescinded before the employee suffers a tangible harm,

the employee has not suffered an adverse employment action.” Keeton v. Flying J, Inc., 429

F.3d 259, 263 (6th Cir. 2005). Here, Borum lost no pay and could not identify any resulting

disruptions to her relationships with her co-workers or supervisor. Her argument therefore fails.

See, e.g., Chen v. Wayne State Univ., 771 N.W.2d 820, 840 (Mich. Ct. App. 2009).




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No. 14-2137, Borum v. Illinois Central Railroad Co.


        Borum next contends that the Railroad cannot avoid liability “by attempting to make

[her] whole retroactively.” She relies on Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 70-73 (2006), in which the employer argued that a 37-day suspension without pay could not

qualify as a materially adverse employment action for purposes of a retaliation claim because the

employer reinstated the plaintiff with backpay. The Court rejected that argument, reasoning that

backpay could not remedy the injury caused by a 37-day loss of income. Id. at 72-73. Here, in

contrast, Borum never lost a day of pay and the Railroad had no need to give her retroactive

relief. So this argument fails as well.

        Thus, Borum failed to establish a prima-facie case of discrimination.

                                                B.

        Borum also argues that the district court erred in granting summary judgment to the

defendants on her retaliation claim. To establish a prima-facie case of retaliation, Borum must

show four elements: first, that she engaged in protected activity; second, that the defendants

knew about that activity; third, that the defendants took an employment action adverse to her;

and fourth, that the protected activity and adverse action were causally connected. Barrett v.

Kirtland Cmty. Coll., 628 N.W.2d 63, 70 (Mich. Ct. App. 2001). The parties agree that Borum

engaged in protected activity twice: once when she filed a discrimination lawsuit in 1999, and

again when she reported discrimination against two other employees to Human Resources in

2011.

        To establish the defendants’ knowledge, Borum must show that the decision-makers—

her supervisor McKelvie and McKelvie’s boss Zunti—knew about her protected activity before

they decided to eliminate her position. See Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir.

2002). But Borum has offered no evidence that McKelvie or Zunti knew about her 2011



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No. 14-2137, Borum v. Illinois Central Railroad Co.


discrimination reports before they made their decision.      She likewise has not offered any

evidence that McKelvie knew about her 1999 lawsuit before the decision.

        Borum did offer evidence that Zunti knew about the 1999 lawsuit. But knowledge alone

is not enough; she must also demonstrate a causal connection between the lawsuit and the

decision to eliminate her position. See West v. Gen. Motors Corp., 665 N.W.2d 468, 472 (Mich.

2003) (per curiam). Here, the only evidence of a causal connection is that the lawsuit happened

first—twelve years before Zunti’s decision. That evidence is not enough, standing alone, to

show a causal connection. See id. at 472-73. Thus, Borum failed to establish a prima-facie case

of retaliation.

                                               C.

        Finally, Borum argues that the district court should not have applied the McDonnell-

Douglas analysis to her claims because she offered direct evidence of discrimination. Direct

evidence “requires the conclusion that unlawful discrimination was at least a motivating factor in

the employer's actions.” Hazle, 628 N.W.2d at 520 (internal quotation marks omitted). Borum

complains about a wide range of her employer’s actions—taking place over 15 years or so—

which she says caused her stress or inconvenience at work. For example, she says that the

Railroad moved some of her staff to a different office, which increased the difficulty of

supervising them. She also says that McKelvie once delayed her on the phone, which caused her

to travel in bad weather. But she offers no evidence that connects any of these actions to the

decision to eliminate her position in 2012. Thus, Borum has failed to offer direct evidence that

the defendants eliminated her position because of her race or in retaliation for her protected

activity. The district court correctly awarded summary judgment to the defendants under the

McDonnell-Douglas framework.



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No. 14-2137, Borum v. Illinois Central Railroad Co.


       The district court’s judgment is affirmed.




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