                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0535n.06

                                          No. 14-6518
                                                                                     FILED
                          UNITED STATES COURT OF APPEALS                         Jul 29, 2015
                               FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


LUCY M. DEITERS,                             )
                                             )
        Plaintiff-Appellant,                 )
                                             )
                                                                ON APPEAL FROM THE
                v.                           )
                                                                UNITED STATES DISTRICT
                                             )
                                                                COURT FOR THE WESTERN
MEGAN J. BRENNAN, Postmaster General, United )
                                                                DISTRICT OF TENNESSEE
States Postal Service Agency (Eastern Area), )
                                             )
        Defendant-Appellee.                  )



BEFORE: BATCHELDER, GIBBONS, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Lucy Deiters appeals the district court’s grant of

summary judgment in favor of the Postmaster General (hereafter USPS) in this Title VII

retaliation case. We agree with the district court that Deiters presented insufficient evidence of

pretext to survive summary judgment, and affirm.

                                                I.

       Deiters worked at a USPS airport facility from 1999 until 2007, and became a full-time

employee in 2005. Deiters asserts that workplace problems began for her in 2007, when she was

transferred to the Nashville Processing & Distribution Center (PD & C), a facility known for its

racially charged atmosphere. Deiters maintains that the atmosphere there was due largely to the

conduct and comments of co-employee Jacqueline Smith. PID 228-30. Deiters is White and

Smith African-American. PID 256.
No. 14-6518
Dieters v. Postmaster General

       Workplace tension and discord worsened from 2009 on, both women continued

complaining to management about the other, and fellow employees and supervisors also

complained to management about both women and the tense work environment they created.

       On September 29, 2011, after consulting the Labor Relations Office, Manager of

Distribution Operations (MDO) Nichols and Distribution Operations Supervisor Cyril Drayton

placed Deiters and Smith on off-duty (unpaid) status because of “alleged on-going Unacceptable

Conduct and Disruption of the Work Environment.” 9/29/11 Letter1; PID 3, 217, 295. Ten co-

employees and managers were interviewed during the internal investigation that followed, and

the resulting report concluded: “there is evidence of hostile work environment created by Jackie

Smith and Lucy Deiters.” PID 171-79.

       Deiters returned to work on October 26, 2011, PID 291, and the Union negotiated a

settlement with USPS under which she was compensated for lost time, lost overtime, night

differential, and Sunday premium pay. PID 169-70. Smith returned to work as well and was

also compensated for lost time under a settlement between the Union and USPS, PID 218-19, but

her employment was later terminated effective January 25, 2012.

       Deiters filed an EEO complaint in December 2011 alleging that her placement on non-

duty status in September 2011 was in retaliation for prior protected activity, specifically, EEO

complaints she filed in January 2009, January 2010, and May 2011. PID 285, 290.

       The EEO investigated and issued a report, which reflects that USPS management

officials stated in interviews that both women were placed on off-duty status because each had

complained of, and blamed the other for, a hostile work environment, and because a number of

employees on the same shift had complained about the conduct of both women. PID 286, 295-


       1
           Deiters was on vacation at the time and Smith was on sick leave.
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Dieters v. Postmaster General

96. The EEO final agency decision concluded that Deiters established a prima facie case of

retaliation but did not show that USPS’s legitimate explanation for placing her on off-duty status

was pretextual. PID 186-91. The EEO Commission affirmed the Agency’s finding of no

discrimination. PID 196.

       Deiters then brought this Title VII retaliation2 action in federal district court. Complaint

filed 4/8/13; PID 1-6, 244-45. The district court granted USPS’s motion for summary judgment,

agreeing with USPS that Deiters presented insufficient evidence of pretext. PID 677-78.

                                                II.

       Deiters first asserts that the district court erred in failing to consider adverse employment

actions other than her emergency placement on off-duty status in the fall of 2011, specifically,

being subjected to years of harassment and threats at the PD & C, requiring that she submit to a

fitness-for-duty test in August 2008, and the posting of her “mug shot” on USPS property when

she was placed on off-duty status. PID 267.

       However, Deiters’s administrative complaint filed in December 2011 and her federal-

court complaint filed in April 2013 do not mention any of these purported adverse employment

actions. PID 1-6, 163. In both the administrative proceeding and district court, Deiters asserted

only one adverse employment action–that USPS retaliated against her for her prior protected

activity by placing her on non-duty status on September 29, 2011. PID 1-6, 180-93, 194-97. We

will not consider claims raised for the first time on appeal. See Barner v. Pilkington N. Am., Inc.,

399 F.3d 745, 749 (6th Cir. 2005).



       2
         Deiters’s complaint also alleged violation of the Tennessee Human Rights Act and
common-law retaliation, and sought punitive damages, but she conceded in response to USPS’s
motion for summary judgment that Title VII is her exclusive remedy and that punitive damages
are unavailable in a Title VII action. PID 244.
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No. 14-6518
Dieters v. Postmaster General

                                                 III.

       Deiters’s remaining arguments challenge various aspects of the district court’s analysis of

pretext. Assuming, as did the district court, that Deiters established a prima facie retaliation

case,3 the burden shifted to USPS to articulate a legitimate, non-retaliatory reason for placing

Deiters on non-duty status in September 2011. Harris v. Metro. Gov’t of Nashville & Davidson

Cnty., 594 F.3d 476, 485 (6th Cir. 2010). USPS proffered a legitimate reason for its adverse

employment action: that, after conferring with the Labor Relations Office, MDO Nichols and

Supervisor Drayton, determined it was necessary to place Deiters and Smith on non-duty status

in order to investigate allegations that both were creating a hostile work environment that

impacted co-workers and supervisory employees by causing turmoil, disruption, and loss of

productivity. PID 77. The burden then shifted to Deiters to establish pretext.

                                                 A.

       Deiters may establish pretext by showing either that USPS’s proffered reason 1) had no

basis in fact, 2) did not actually motivate the action, or 3) was insufficient to warrant the adverse

action. Harris, 594 F.3d at 486. Ultimately, Deiters must prove that USPS’s desire to retaliate

was the but-for cause of the challenged employment action. Univ. of Tex. S.W. Med. Ctr. v.

Nassar, 133 S. Ct. 2517 (2013); Montell v. Diversified Clinical Svcs., Inc., 757 F.3d 497, 504

(6th Cir. 2014) (noting that a plaintiff will have to establish that her protected activity was a but-

for cause of the employer’s adverse action).



       3
         The burden of establishing a prima facie retaliation case is not onerous. Taylor v.
Geithner, 703 F.3d 328, 336 (6th Cir. 2013). Because Deiters relies on circumstantial evidence,
she must demonstrate four elements by a preponderance of the evidence: that she engaged in
protected activity under Title VII, her employer knew that she had engaged in protected activity,
an adverse employment action, and a causal connection between the adverse employment action
and her protected activity. Id.
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No. 14-6518
Dieters v. Postmaster General

       First, Deiters maintains that the district court insufficiently explained how it determined

that USPS “made a reasonably informed and considered decision” before placing her on non-

duty status, arguing that no “business decision” was made; rather, USPS’s “actions in its

purported ‘business decision’ constituted further harassment and adverse employment actions.”

Appellant Br. 37.      But, as the district court determined,4 the evidence before it, including

statements of USPS managers in EEO interviews that both women were placed on off-duty status

because each had complained of, and blamed the other for, a hostile work environment, and the

statements of co-employees complaining about the conduct of both women and its negative

effect on the work environment, suggested that USPS did indeed make a business decision. PID

286, 295-96.

                                                     B.

       Deiters also claims the district court erroneously determined that she and Smith were

“treated the same” when Deiters’s photograph was posted on the PD&C doors, much to her


       4
           The district court’s opinion concludes:

       Plaintiff has failed to show that Defendant’s legitimate, nondiscriminatory reason
       was pretext for retaliation. Defendant has presented evidence that both Plaintiff
       and Smith were put on emergency placement because of their continuing,
       disruptive, contentious working relationship. Plaintiff was not singled out; both
       parties were treated the same. Moreover, Plaintiff’s managers conferred with the
       Postal Service Labor Relations Board prior to taking this action. In addition,
       Plaintiff admitted that the Union grieved and settled her emergency placement in
       October of 2011.
               Under these circumstances, the Court finds that Defendant made a
       reasonably informed and considered decision before taking the adverse
       employment action of placing Plaintiff on emergency placement. Plaintiff cannot
       establish pretext simply by disagreeing with Defendant’s business judgment and
       choice of actions. Pretext cannot be shown by attacking the business decision
       itself. Hein v. All America Plywood Co., Inc., 232 F.2d 482, 490 (6th Cir. 2000);
       Brocklehurst v. PPG Industries, Inc., 123 F.3d 890, 898 (6th Cir. 1997).

PID 677-78 (emphasis in original).
                                                 -5-
No. 14-6518
Dieters v. Postmaster General

embarrassment, but not Smith’s photograph.5 Deiters maintains that Smith was not affected as

much as she was by being placed on non-duty leave. Appellant Br. at 39.

       As discussed, neither Deiters’s administrative complaint or her federal-court complaint

claimed that the posting of her photo but not Smith’s was an adverse employment action. We do

not address this unpreserved claim, see Barner, 399 F.3d at 749, beyond observing that, after

Smith and Deiters were returned to work in October 2011, Smith’s employment was terminated

effective in January 2012, while Deiters was not discharged.

                                               C.

       Deiters asserts that the district court erroneously determined that she attempted to

establish pretext only by disagreeing with USPS’s business judgment or decision. She argues

that pretext is evident from USPS’s failure to follow its own policies and procedures before it

placed her on non-duty status. According to Deiters, emergency placement on non-duty status is

only used when an employee does something drastic that may risk harm to employees.

Appellant Br. 42.    But Article 16, § 7 of the collective bargaining agreement allows for

emergency placement when an employee may be injurious to self or others. PID 168. USPS had

received many complaints from employees and supervisors of the constant turmoil between the

two women on the workroom floor, frequent outbursts, and frequent crying spells Deiters had.

       5
          When USPS placed both women on unpaid leave, written notices to that effect were
posted on the PD & C Annex doors so that employees would not allow either Deiters or Smith to
enter the facility. That is standard procedure. It is also standard procedure to post a photograph
next to each written notice. A photo of Deiters was posted, but not of Smith. Supervisor
Drayton testified that he did not post Smith’s photo because “they could not find a picture” of
Smith. “‘[W]e look to similarly situated employees not to evaluate the employer’s business
judgment, but to inquire into the employer’s motivation and intent’ to determine whether the
employer was ‘motivated by retaliation.’” Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 503
(6th Cir. 2009) (quoting Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987)). Here, after Smith
and Deiters were returned to work in October 2011, Smith was again placed on non-duty status,
and her employment was terminated effective in January 2012. That her picture was not posted
does not support an inference of pretext.
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No. 14-6518
Dieters v. Postmaster General

PID 114. In addition, Deiters 2010 EEO complaint alleged that she was frightened by Smith’s

“threatening stances,” near physical run-ins, and glaring, and that she frequently retreated to the

women’s bathroom sobbing. PID 274-75. We conclude that USPS reasonably believed that the

conflict had the potential to be injurious to Dieters, Smith or others.

                                                 D.

       Deiters’s final challenge is to the district court’s statement that Deiters admitted that the

Union grieved and settled her emergency placement. PID 678, quoted supra n.4. It is not clear

what was intended by the observation, but, in any event, the district court did not grant summary

judgment on that basis; rather, the court ruled that Deiters failed to present evidence that USPS’s

proffered reason for placing her on non-duty status either had no basis in fact, or did not actually

motivate the action, or was insufficient to warrant the adverse action. Harris, 594 F.3d at 486.

       For these reasons, we affirm the judgment of the district court.




                                                 -7-
