                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 19a0273n.06

                                           No. 18-5712

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                May 24, 2019
 KELLY MCLAUGHLIN and JANET RANIERO,                     )
                                                                            DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiffs-Appellants,                           )
                                                         )
 v.                                                      )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
 FIFTH THIRD BANK, INC.,                                 )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF KENTUCKY
        Defendant-Appellee.                              )
                                                         )


BEFORE:        BOGGS, BATCHELDER, and STRANCH, Circuit Judges.

       BOGGS, Circuit Judge. Like many banks, Appellee Fifth Third Bank, Inc. has a “dual-

control policy” to govern entry to its cash vaults. To open a cash vault, two different employees

must turn two different keys; both must remain present during the transaction; and then both must

sign a log book to record their participation. In January 2013, Fifth Third learned that employees

at its busy Newport, Kentucky location were habitually violating this policy. Fifth Third opened

an internal investigation and reviewed security video to identify any possibly offending employees.

Appellants Kelly McLaughlin and Janet Raniero were two of the employees seen on the security

video, and both admitted to investigators that they had violated bank policy.

       Fifth Third fired McLaughlin, Raniero, and another female employee for violating of the

dual-control policy. McLaughlin and Raniero claim that three male employees—Randall Dreyer,

Blake Hoover, and Joseph Durrett—also violated the dual-control policy but were not fired by

Fifth Third and instead received performance counseling. Two of the three male employees were
No. 17-5712, McLaughlin v. Fifth Third Bank


not seen on video violating the policy and did not admit to violating the policy. The third, Dreyer,

was seen on video and admitted to violating the dual-control policy, but Fifth Third did not fire

him due to “mitigating circumstances,” namely that a superior had bullied him into the violation,

he complained about being forced to do it, and he refused to do it again when asked by

McLaughlin, who was not his superior and described him as a “by-the-book guy.” McLaughlin

and Raniero argue that Fifth Third should have either fired the men as it did the women or ordered

the women to receive performance counseling as it did the men and that failure to treat men and

women equally shows that Fifth Third was using the dual-control policy violations as a pretext for

engaging in sex discrimination.

       McLaughlin and Raniero sued Fifth Third for sex discrimination under Title VII of the

Civil Rights Act of 1964, and Raniero also brought a claim for age discrimination under the Age

Discrimination in Employment Act. The district court granted Fifth Third’s summary-judgment

motion and plaintiffs appealed. For the reasons set forth below, we affirm.

                                      I. Standard of Review

       On appeal, entry of summary judgment is reviewed de novo. Simpson v. Ernst & Young,

100 F.3d 436, 440 (6th Cir. 1996). Summary judgment is proper if the movant shows 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). Once the movant meets the initial burden, the opposing party must set

forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). All

evidence must be considered in the light most favorable to the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

       To establish a Title VII employment-discrimination claim, a party must “present direct

evidence of discrimination or introduce circumstantial evidence that would allow an inference of



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No. 17-5712, McLaughlin v. Fifth Third Bank


discriminatory treatment.” Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003).

McLaughlin’s and Raniero’s claims are based on circumstantial evidence and as such must be

evaluated under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). McDonnell Douglas requires that McLaughlin and Raniero present a prima facie case

of discrimination, which creates a rebuttable presumption that discrimination occurred and shifts

the burden to Fifth Third to articulate a legitimate non-discriminatory reason for taking the

challenged employment action. The district court held that there was no genuine issue of material

fact that violation of Fifth Third’s cash-vault dual-control policy was a legitimate non-

discriminatory reason for Fifth Third to fire McLaughlin and Raniero. With Fifth Third satisfying

its burden, McLaughlin and Raniero must prove that proffered reason was actually a pretext to

hide unlawful activity. Carter, 349 F.3d at 273.

                                               II.

       There are three ways to show pretext: 1) the proffered reason had no basis in fact; 2) the

proffered reason did not actually motivate the employer’s actions; or 3) the proffered reason was

insufficient to motivate the employer’s action. Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th

Cir. 2009).

       To carry her burden in opposing summary judgment, [plaintiff] must produce sufficient
       evidence from which a jury could reasonably reject [defendant’s] explanation of why it
       fired her…When an employer reasonably and honestly relies on particularized facts
       in making an employment decision, it is entitled to summary judgment on pretext even
       if its conclusion is later shown to be mistaken, foolish, trivial, or baseless.

Chen, 580 F.3d at 400-01 (emphasis added). Under the “honest-belief” doctrine, a pretext

determination does not hinge on whether policy violations occurred, but whether Fifth Third

reasonably and honestly believed in its nondiscriminatory reason for treating women differently

than similarly-situated men. “[T]he key inquiry is whether the employer made a reasonably

informed and considered decision before taking an adverse employment action.” Smith v. Chrysler
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No. 17-5712, McLaughlin v. Fifth Third Bank


Corp., 155 F.3d 799, 807 (6th Cir. 1998). The employee “must allege more than a dispute over

the facts upon which his discharge was based.” Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th

Cir. 2001). An employee can overcome the honest-belief doctrine

       [w]hen the employee is able to produce sufficient evidence to establish that the employer
       failed to make a reasonably informed and considered decision before taking its adverse
       employment action, thereby making its decisional process ‘unworthy of credence,’ then
       any reliance placed by the employer in such a process cannot be said to be honestly held.

Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (citation omitted).

       On appeal, McLaughlin and Raniero argue that the three male employees violated the dual-

control policy, citing witness interviews, affidavits, and depositions. [Appellant Brief at 7-16] This

fact-intensive argument does not change the reality that at the time Fifth Third made its decision,

it had seen the appellants on video violating the dual-control policy and the women had admitted

to violating the policy. Two of the men were not seen on video and did not admit to violating the

policy. McLaughlin, in her interview, identified the third man, Dreyer, as a “by-the-book guy”

who complained that a superior bullied him into violating the policy. McLaughlin and Raniero

cite six interviews in which employees told investigators that this was a “very busy branch” where

violations “happened all the time” and “just became normal behavior.” [Appellant Brief at 6-9]

One employee specifically stated that Hoover and Durrett, two of the male employees that

McLaughlin and Raniero identify, knew this was going on. [Appellant Brief at 9] The same

interviewee saw one of the men take someone else’s key to the cash vault.

       Fifth Third conducted an extensive internal investigation, which included employee

interviews and review of two months of cash-vault security-video. In contrast to the three women,

two of the three male employees were not seen on video violating bank policy and did not admit

to violating the policy. The third male did violate the policy once, but under “mitigating

circumstances.” The district court found no evidence upon which a jury could find Fifth Third’s


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No. 17-5712, McLaughlin v. Fifth Third Bank


belief that Dreyer was bullied was simply pretext for unlawful discrimination, as there was no

evidence to the contrary and one of the plaintiffs, McLaughlin, was the individual who first had

brought the “mitigating circumstances” to Fifth Third’s attention. Fifth Third had an “honest

belief” that the factual differences between the women and the two men who were not seen on

video and did not admit to violating the dual-control policy and Dreyer, who did violate the policy

under non-pretextual mitigating circumstances, justified their disciplinary decisions. Because

there are no disputes of material fact as to Fifth Third’s “honest belief,” the district court’s grant

of summary judgment was proper.

       Raniero’s age-discrimination claim is also subject to the McDonnell Douglas framework.

See Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). Since Raniero failed to show

that Fifth Third’s nondiscriminatory reason for firing her was a pretext, Raniero’s age-

discrimination claim fails for the same reason.

       For the reasons set forth above, we AFFIRM.




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