                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 13a1023n.06

                                           No. 12-6597
                                                                                         FILED
                                                                                   Dec 11, 2013
                              UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT


PAULA B. BROWN,                                      )
                                                     )
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )        ON APPEAL FROM THE UNITED
                                                     )        STATES DISTRICT COURT FOR
LEXINGTON-FAYETTE URBAN COUNTY                       )        THE EASTERN DISTRICT OF
GOVERNMENT                                           )        KENTUCKY
                                                     )
       Defendant-Appellee.                           )
                                                     )        OPINION


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


       BERNICE B. DONALD, Circuit Judge. Plaintiff-Appellant Paula Brown appeals the

district court’s grant of summary judgment to Defendant-Appellee Lexington-Fayette Urban County

Government (“LFUCG”) in her employment discrimination suit alleging retaliation under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. This appeal turns on the question

of whether Brown has presented sufficient evidence to establish pretext, the third step in the

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), circumstantial evidence burden-shifting

framework. Specifically, we must analyze whether, viewing the evidence in the light most favorable

to her, Brown has shown circumstances indicating it is more likely than not that LFUCG suspended

her and referred her for a medical evaluation for retaliatory reasons, rather than for its proffered

legitimate reasons.
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

        Brown initially filed suit against LFUCG and a number of LFUCG employees alleging nine

different causes of action. The district court either dismissed or granted summary judgment to

LFUCG on all of these claims. Brown previously appealed the dismissal of her Title VII retaliation

claim against LFUCG and her state law intentional infliction of emotional distress claim against the

individual defendants to this Court. We affirmed the dismissal of the state law tort claim but ruled

that the district court erred in holding that Brown had failed to establish a prima facie retaliation

claim under Title VII.


       After we remanded the case to the district court, LFUCG again moved for summary

judgment. The district court granted this motion, finding that the case warranted summary judgment

because Brown could not establish that LFUCG’s stated reasons for her discharge were likely

pretextual. Brown again appeals. For the reasons explained below, we AFFIRM the district court’s

grant of summary judgment to LFUCG.


                                                 I.


       Paula Brown began working for LFUCG in 2001. In 2007, as a part of departmental

reorganization, Brown assumed primary responsibility for heating, ventilation, and air conditioning

(“HVAC”) permitting, as well as front counter assistance duties. Brown held this position until her

termination. As amply demonstrated in the record, Brown felt that her co-workers and supervisors

mistreated her. The record also clearly indicates that Brown had a history of hostility and

combativeness with her co-workers and supervisors.



                                                -2-
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

       In March 2008, Brown filed an Occupational Safety and Health complaint with the Kentucky

Department of Labor. On April 3, 2008, Brown filed her first charge with the Equal Employment

Opportunity Commission (“EEOC”) through the Lexington-Fayette Urban County Human Rights

Commission. This charge alleged that, because of her race and sex, Brown had been treated

differently from other employees and passed over for promotion.


       On May 1, 2008, while a customer waited for her to process a number of HVAC permit

forms, Brown had an altercation with a supervisor, Dewey Crowe. According to Brown, the office

was understaffed that day, so she asked an idle co-worker, Christine Wu, to help her by numbering

the forms as Brown addressed their contents. Brown claims that, although Crowe had not prohibited

her from seeking help before, he began shouting about how he had told Brown not to ask others for

help, pointing his finger, and slamming his fists. Crowe, however, counters that he had previously

instructed Brown to do her own work after watching Brown ask others to do her work for her.

Crowe claims he repeatedly instructed Brown to return to her work station and finish the permits

herself. Crowe admits that he was aggravated but contends that he never yelled, pointed, or

slammed his fist. The parties agree that an argument ensued and that Brown momentarily returned

to her workstation before going into Crowe’s office to continue the argument. Crowe again told her

to return to her workstation and finish helping the customer, but Brown instead went to another

employee’s office for advice before eventually leaving to file a complaint against Crowe with the

Division of Human Resources.




                                              -3-
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

       As a result of this complaint, LFUCG placed Brown on thirty days of paid administrative

leave. Upon her return to work, on June 3, 2008, Crowe suspended Brown for forty hours without

pay for insubordination—defined in the employee handbook as “direct refusal to obey a supervisor’s

work-related order or failure to follow directions or instructions”—and inefficiency based on the

May 1, 2008 altercation.


       Brown requested both a meeting with Leslie Jarvis, Senior Manager in the Division of

Human Resources, and an appeal before the Civil Services Commission regarding this suspension.

Brown also requested a transfer to a different department at LFUCG; she was told that she could

either remain in her current position or resign. Brown then began to send emails regarding her

mental state and her work to various coworkers and supervisors. These emails devolved from

coherent, if somewhat odd, messages on June 5 and June 9 to a June 24 missive where Brown stated,

among other things, “I will not Resign even if you kill me with Stress” and closed with “I request

once again for you, SOMEONE to Demand that these Powerful, Godlike, Authorities PLEASE stop

Inflicting Intentional Emotional Distress on me. thank you.”


       These emails prompted concerns about Brown’s mental well-being and ability to work, so,

on July 3, 2008, LFUCG’s Division of Human Resources referred Brown to the Behavior Medicine

Network, its employee assistance program, for a fitness-for-duty evaluation. After her initial

consultation with a Behavior Medicine Network mental health professional, LFUCG placed Brown

on leave until a medical professional could determine that it would be appropriate for her to return

to work.

                                               -4-
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

       On July 7, 2008, while on leave, Brown submitted a second EEOC charge of discrimination

alleging that LFUCG retaliated against her by suspending her for forty hours without pay because

she engaged in the protected conduct of her filing her first EEOC charge. Brown further alleged that

she was being discriminated against based on her age in contravention of the Age Discrimination

in Employment Act. This charge listed the relevant dates of discrimination as May 1, 2008 ongoing

through July 1, 2008.


       Although a psychiatrist cleared Brown to return to work on August 18, 2008, LFUCG did

not actually permit Brown to return until October 13, 2008. Brown’s return was delayed because

LFUCG wanted to speak with her healthcare provider, who was then on vacation, about how to

ensure Brown’s smooth reentry into the workplace and because some of the provider’s suggestions

took time to implement. Initially, per LFUCG’s standard policy requiring employees to use

accumulated leave while out for medical reasons, LFUCG did not pay Brown. After Brown returned

to work, LFUCG compensated her for all of her leave time.


       Brown returned to work on October 13, 2008. According to Brown, upon her return, she was

saddled with an unreasonable workload in an attempt to drive her away. Brown points specifically

to the fact that her work had been divided between several full-time employees while she was gone

to assert that she was given more work than one person could reasonably do. On December 31,

2008, after continuing on-the-job problems, LFUCG suspended Brown pending termination by the

Civil Service Commission for insubordination and inefficiency, failure to provide timely service,

rude and unprofessional behavior, and chronic inability and unwillingness to perform the functions

                                               -5-
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

of her position. After a hearing on April 29, 2009, the Civil Service Commission issued an order

terminating Brown’s employment on May 7, 2009.


                                                    II.


        Brown filed her initial complaint in the United States District Court for the Eastern District

of Kentucky on December 6, 2008, alleging a host of claims against LFUCG and a number of

LFUCG employees. On March 26, 2010, the district court granted partial summary judgment to the

defendants on all of Brown’s claims other than her Title VII retaliation claim against LFUCG and

her state law intentional infliction of emotion distress claims against the individual defendants. The

district then court issued an order dismissing Brown’s last two causes of action on April 15, 2010.

Regarding Brown’s retaliation claim, the district court found that Brown failed to connect her EEOC

and OSHA complaints to an adverse employment action in order to establish the causation required

for a prima facie claim of retaliation under Title VII.


        Brown appealed to this Court, which stated: “Although the record before us suggests that the

merits of the plaintiff’s retaliation claim are—at best—tenuous, we have no doubt that she was able

to establish the easily-met burden of a prima facie case and that, as a result, the district court’s ruling

on that issue cannot be upheld.” Brown v. Lexington-Fayette Urban Cnty. Gov’t, 483 F. App’x 221,

222 (6th Cir. 2012). We also noted that “[w]ithout question the defendant has offered legitimate

explanations for the treatment of the plaintiff that have no relation whatsoever to her filing of the




                                                   -6-
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

EEOC and Occupational Safety and Health Complaints.” Id. at 227. We remanded to the district

court.


         On November 5, 2012, the district court again granted summary judgment to LFUCG on

Brown’s Title VII retaliation claim. The district court turned to the third phase of the McDonnell

Douglas burden-shifting framework: whether Brown could raise a genuine issue of material fact as

to pretext. The district court found that Brown failed to produce any evidence to support an

argument of pretext, reasoning that neither Brown’s categorical dismissal of LFUCG’s stated

reasons for its actions against her as “untrue” nor Brown’s reliance on affidavits of questionable

relevance and doubtful admissibility raised issues of material fact. On December 6, 2012, the

district court denied Brown’s motion to alter or amend the judgment. This appeal ensued.


                                                  III.


         On appeal, Brown argues that the district court erred in determining that she had not met her

burden of demonstrating that LFUCG’s stated reasons for its adverse actions against her were

pretext for retaliation. Particularly, Brown contends that the district court did not view all the

evidence in the light most favorable to her.




                                                  A.




                                                 -7-
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

        We review de novo a district court's grant of summary judgment using the Matsushita-

Anderson-Celotex standard. Back v. Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012). Summary

judgment is proper where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We view facts in the record and

reasonable inferences that can be drawn from those facts in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). We do not weigh evidence, assess credibility of witnesses, or determine the truth of matters

in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


        The party requesting summary judgment bears an initial burden of demonstrating that no

genuine issue of material fact exists, which it must discharge by producing evidence to demonstrate

the absence of a genuine issue of material fact or “by showing . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-325

(1986) (internal quotation marks omitted). If the moving party satisfies this burden, the nonmoving

party may not “rest upon its . . . pleadings, but rather must set forth specific facts showing that there

is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing

Fed. R. Civ. P. 56; Matsushita, 475 U.S. at 586). A party asserting a genuine issue of material fact

must support this argument either by “citing to particular parts of materials in the record” or by

“showing that the materials cited do not establish the absence or presence of a genuine dispute, or

that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1). Evidence that is “merely colorable” or “not significantly probative” is insufficient.



                                                  -8-
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

Anderson, 477 U.S. at 248-52. If there are no disputed material facts, we review de novo whether

the district court properly applied the substantive law. Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir.

2003).


                                                   B.


         Because Brown does not offer any direct evidence of discrimination, the burden-shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for asserting

a discrimination claim based on circumstantial evidence applies here. Under that framework, the

plaintiff first bears the burden of establishing a prima facie case of retaliation. Lindsay v. Yates, 578

F.3d 407, 418 (6th Cir. 2009). We previously held that Brown established a prima facie case of

retaliation based on two adverse actions—LFUCG’s suspending her for forty hours without pay on

June 3, 2008 and LFUCG’s referring Brown for a fitness-for-duty exam which resulted in her being

placed on leave from July through October 2008. Brown v. Lexington-Fayette Urban Cnty. Gov’t,

483 F. App’x 221 (6th Cir. 2012).


         Because Brown established a prima facie Title VII retaliation case, the burden of

production—but not persuasion—shifted to LFUCG to articulate legitimate non-discriminatory

reasons for these actions. McDonnell Douglas Corp., 411 U.S. at 802; Browning v. Dep’t of the

Army, 436 F.3d 692, 695 (6th Cir. 2006). As noted in our prior opinion, LFUCG has done so.

Brown, 483 F. App’x at 227. LFUCG’s decision to suspend Brown because of her insubordination

during her confrontation with Crowe on May 1, 2008 constitutes a legitimate, non-retaliatory



                                                  -9-
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

justification. E.g. Fullen v. City of Columbus, 514 F. App’x 601, 606 (6th Cir. 2013); Walborn v.

Erie Cnty. Care Facility, 150 F.3d 584, 589 (6th Cir. 1998). Similarly, LFUCG’s decision to refer

Brown for a fitness-for-duty assessment that led to her being placed on leave was legitimate and

non-retaliatory given the tone and substance of Brown’s June 2008 emails. See Stone v. Board of

Dirs. of Tenn. Valley Authority, 35 F. App’x 193, 200 n.1 (6th Cir. 2002); Sullivan v. River Valley

School District, 197 F.3d 804, 813 (6th Cir. 1999).


       LFUCG’s providing non-retaliatory reasons for its adverse actions pushes the McDonnell

Douglas framework into its third phase, where the Brown must demonstrate by a preponderance of

the evidence that these reasons are actually pretext for unlawful discrimination. 411 U.S. at 802;

Abbot v. Crown Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003). To demonstrate pretext and

thereby defeat LFUCG’s motion for summary judgment, Brown may show that LFUCG’s offered

reasons for her suspension and referral: (1) had no basis in fact; (2) did not actually motivate

LFUCG’s conduct; or (3) were insufficient to explain this conduct. Risch v. Royal Oak Police

Dep’t, 581 F.3d 383, 391 (6th Cir. 2009). Brown relies on the second method for proving pretext,

arguing that LFUCG’s stated non-retaliatory reasons for its adverse employment actions did not

actually motivate those actions. To demonstrate pretext using this method, Brown must provide

“circumstances which tend to prove that an illegal motivation was more likely than that offered by

the defendant.” Russell v. Univ. of Toledo, 537 F.3d 596, 608 (6th Cir. 2008).




                                              - 10 -
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

                                                   C.


       Brown contends that the district court failed to adequately consider the record and did not

draw all reasonable inferences in her favor. Brown, however, does not specifically address either

of LFUCG’s proffered reasons for its actions. Instead, she generally contends that she has produced

adequate evidence to indicate that LFUCG harbored a desire to fire her or force her to resign and

that its employees systematically tried to drive her away. Brown grounds this argument in four

affidavits: her own, along with three from former coworkers John Hoagland, Kim Asher, and

Christine Wu. Although these affidavits establish a troubled relationship between Brown and

LFUCG and indicate that Brown was not well-liked by some co-workers and supervisors, they do

not present sufficient evidence to indicate that Brown more likely than not suffered adverse actions

for retaliatory rather than legitimate reasons.


       Kimber Asherly and John Hoagland’s affidavits suffer from two flaws. First, they are not

temporally relevant to Brown’s retaliation claim as neither Hoagland nor Asher were employed by

LFUCG after 2007. They cannot, therefore, offer meaningful insight regarding whether LFUCG

responded to Brown in legitimate or retaliatory ways from May through October 2008. Hoagland’s

only potentially relevant insight is that Brown’s job had been divided into two positions before the

reorganization in 2007. The remainder of Asher and Hoagland’s affidavits detail statements and

conversations indicating that other employees were “out to get” Brown. These statements reveal

the other flaw in the affidavits—they are replete with hearsay. See generally Fed. R. Evid. 801. The

majority of these affidavits are both irrelevant and inadmissible. See Fed. R. Evid. 802.

                                                  - 11 -
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

       Christine Wu’s affidavit is more substantive. Like Hoagland and Asher, Wu offers

inadmissible hearsay statements indicating that LFUCG supervisors strongly disliked Brown.

Unlike the others, however, Wu is still an employee of LFUCG and was a witness to the argument

between Brown and Crowe on May 1, 2008. According to Wu, Crowe was “overly belligerent and

threatening” and his reaction was “loud and over-blown.” Still, nothing in Wu’s affidavit suggests

that Brown was not insubordinate during the confrontation. Wu’s affidavit does not address

Brown’s referral for evaluation and subsequent leave.


       In her own affidavit, Brown focuses on statements regarding the events on May 1, 2008,

which she supplements with testimony from her Civil Service hearing to establish that she

eventually went to Human Resources to lodge a complaint after her confrontation with Crowe.

Brown argues that this fact eviscerates LFUCG’s insubordination justification. Her argument,

however, overreaches. Although her filing a complaint with Human Resources does explain why

she eventually left work without finishing the HVAC permits, it does not excuse her initially failing

to return to her workstation as instructed or her following Crowe into his office to continue the

argument—both of which still constitute insubordination.


       Turning to the circumstances resulting in her referral for evaluation and eventual leave,

Brown discusses facts that she alleges the district court did not consider—her filing an EEOC charge

against Crowe on July 7 and her requesting but never having both a meeting with Jarvis and an

appeal regarding her suspension—to argue that the district court did not draw all reasonable

inferences in her favor. Brown also contends that her June 2008 emails merely expressed

                                               - 12 -
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

exasperation with Jarvis’s perceived unwillingness to assist her. Brown, however, neglects to

mention that, although the meeting and appeal did not occur, Jarvis responded to her requests,

provided a time frame in which to schedule a meeting, and explained when the next Appeals Board

meeting would take place. Further, Brown’s reliance on her second EEOC charge and her meeting

requests presume what she is required to prove—that LFUCG’s proffered reasons for referring her

for a fitness-for-duty evaluation were pretext for retaliation.


       Brown also contends that the district court assumed the role of the jury by addressing the

disputed issue of fact regarding why Brown did not return to work for over a month after the

psychiatrist declared her fit. The district court, however, correctly determined that this dispute of

fact is contrived, not genuine. Whereas LFUCG has introduced evidence in the form of emails and

an affidavit to explain its non-retaliatory reasons for delaying Brown’s return, Brown counters this

evidence with speculation that the delay must have been retaliatory. Speculation alone cannot create

a genuine issue of material fact sufficient to resist summary judgment. See Anderson, 477 U.S. at

248-52.


       Finally, Brown relies on Cantrell v. Nissan North America, Inc., 145 F. App’x 99 (6th Cir.

2005), to claim that the evidence she asserted in her prima facie case is in-and-of-itself sufficient

to create a genuine issue of material fact regarding pretext. In Cantrell, an employee with a lengthy

history of unexcused absences and disciplinary issues engaged in the protected activity of filing an

EEOC charge and was then terminated after a minor infraction. Id. at 103-04. We determined that

this minor infraction was not “the straw that broke the camel’s back” and that Nissan had instead

                                                - 13 -
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

“simply seized on it as the first available excuse to fire Cantrell after her EEOC filing.” Id. at 108.

The Cantrell court recognized that when an employee’s prima facie evidence is sufficiently strong,

then that same evidence may in some instances be used to rebut the employer’s legitimate non-

discriminatory reasons. Id. at 107-08.


       Cantrell is distinguishable. Whereas Cantrell presented a particularly robust prima facie

case, Brown’s case, while sufficient to satisfy the low threshold in the first phase of the McDonnell

Douglas framework, has been properly characterized by this Court as “at best [] tenuous.” Brown,

483 F. App’x at 222. Brown’s prima facie case rested in large part on the temporal proximity

between her protected actions and LFUCG’s adverse actions, coupled with her facing a substantial

workload upon her return to work. Id. at 226-27. This evidence does not give rise to an inference

of pretext strong enough to overcome LFUCG’s stated reasons for suspending Brown and referring

her for evaluation.


       Brown has provided reams of evidence suggesting that her co-workers did not like her and

likely mistreated her at times. Title VII’s anti-retaliation provision, however, does not guard against

“petty slights or minor annoyances that often take place at work.” Burlington North & Santa Fey

Railway Co. v. White, 548 U.S. 53, 68 (2006). Rather, to survive summary judgment, Brown must

demonstrate “circumstances which tend to prove that an illegal motivation was more likely than that

offered by the defendant.” Russell, 537 F.3d at 608. She has failed to do so. Outside of inferences

and speculation, Brown points to little evidence in the record actually suggesting that LFUCG’s




                                                - 14 -
No. 12-6597
Brown v. Lexington-Fayette Urban Cnty. Gov’t

stated reasons for its actions did not, in fact, motivate its actions. Accordingly, Brown’s retaliation

claim falters at the third stage of the McDonnell Douglas framework.


                                                 IV.


       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to

LFUCG.




                                                - 15 -
