              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 14a0473n.06

                                    Case No. 13-4382                            FILED
                                                                           Jul 01, 2014
                                                                      DEBORAH S. HUNT, Clerk
                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


MARY HELFRICH,                                  )
                                                )
      Plaintiff-Appellant,                      )
                                                )      ON APPEAL FROM THE UNITED
v.                                              )      STATES DISTRICT COURT FOR
                                                )      THE NORTHERN DISTRICT OF
NORTHWEST OHIO ORTHOPEDICS &                    )      OHIO
SPORTS MEDICINE, INC.,                          )
                                                )
      Defendant-Appellee.                       )
                                                )


      BEFORE: SUTTON and COOK, Circuit Judges; MARBLEY, District Judge*

      COOK, Circuit Judge.    Plaintiff Mary Helfrich appeals the district court’s grant of

summary judgment to her former employer, Northwest Ohio Orthopedics & Sports Medicine,

Inc. (“Northwest”), on her unlawful discharge claim under the Age Discrimination in

Employment Act (ADEA). See 29 U.S.C. § 623(a)(1). We AFFIRM.


                                           I.


      Helfrich came to Northwest as a temporary employee in December 2007, obtaining full-

time employment in the medical records department the following August. She was 58 at the

      *
         The Honorable Algenon L. Marbley, United States District Judge for the Southern
District of Ohio, sitting by designation.
Case No. 13-4382, Helfrich v. Nw. Oh. Orthopedics & Sports Med., Inc.


time of hire. Everything apparently went smoothly until Shelly Neeley became Helfrich’s

supervisor in the fall of 2010. Despite the continued growth of Northwest’s business, Helfrich

and Neeley remained the only full-time employees in the records department (previously staffed

with four), and Helfrich’s performance reviews began to suffer.


        In January 2011, Neeley and head administrator Paula Miller met with Helfrich to discuss

“ongoing performance problems . . . rang[ing] from managing medical records, to timely

completing the scanning and uploading of patient information, to ensuring that one patient’s

medical information did not end up in another patient’s charts.” (R. 16-1, Miller Decl. ¶ 4.)

Miller and Neeley prepared a list of fifteen specific grievances for Helfrich. (Id. & Ex. A.)

Then, between February and mid-April 2011, Neeley notified Helfrich on at least three occasions

of incomplete work, including a misfiled surgery photograph and unprocessed dictation. (R. 16-

2, Neeley Decl. ¶¶ 4–6; id. Exs. A–C (emails documenting problems).) According to Neeley:


        [Helfrich] often fell behind in her work and had problems with accuracy, such as
        putting one patient’s records in another patient’s files. Occasionally I would do
        the work that Helfrich should have done herself. Other times, I would talk with
        Helfrich about how she could improve her performance. Sometimes she would
        improve her performance for a short period of time, but then her performance
        would always taper off again.
(Id. ¶ 2.)


        Helfrich received a 30-day warning on April 29, 2011, for “substandard work quality”

and “carelessness.” (R. 17-1, Helfrich Dep. Ex. 3.) Though Neeley ultimately found many of

the cited performance problems “negated,” “there were enough things prior to [the 30-day

warning]” that prevented Neeley and Miller from rescinding the warning. (R. 26, Neeley Dep. at

154–56.) After meeting with Neeley and Miller to discuss her work deficiencies, Helfrich spent

the following Saturday at the office with Neeley catching up on work. In contemporaneous

                                              -2-
Case No. 13-4382, Helfrich v. Nw. Oh. Orthopedics & Sports Med., Inc.


email exchanges with Neeley, Helfrich predicted that Miller would fire her, writing “She can’t

keep me—it would prove her wrong & management does not do that.”                  Though Helfrich

successfully completed her 30-day work-improvement plan, problems persisted throughout that

evaluation month.


       On May 2, Neeley met with Helfrich to discuss her backlog of scanning assignments and

her handling of external records requests; follow-up emails memorialized the conversation and

reminded Helfrich to keep up on scanning and other assignments. (R. 16-2, Neeley Decl. ¶¶ 6–7;

id. Exs. D–E; R. 17-1, Helfrich Dep. Ex. 19.) On May 17, Neeley assigned Helfrich a time-

sensitive scanning project, only to do the job herself when Helfrich failed to address it before the

close of business. (R. 16-2, Neeley Decl. ¶ 8; see also id. Ex. F.) Three days later, Miller met

with Helfrich to discuss remaining performance issues and prepared an assignments checklist.

(R. 16-1, Miller Decl. ¶ 5 & Ex. B.)


       Helfrich’s performance issues continued even after that conversation. In July, Miller and

Neeley confronted Helfrich about working unapproved overtime during her lunch breaks. (Id.

¶ 6 & Ex. C.) Then, on September 8, Northwest received a patient complaint after Helfrich

failed to process external records requests properly. (R. 16-2, Neeley Decl. ¶ 10; see also id. Ex.

H.) The patient complaint followed closely on the heels of Helfrich sending Miller and Neeley a

blunt email criticizing their management style and anticipating her ultimate termination. (R. 17-

1, Helfrich Dep. Ex. 24.) Northwest fired Helfrich on September 15 and reassigned Claudia

Azaroff, an employee in her late twenties, to perform her duties in the records department.


       Helfrich filed suit under the ADEA, alleging that Northwest discriminated against her

because of her age. To support this claim, Helfrich pointed to Northwest’s firing of five other


                                               -3-
Case No. 13-4382, Helfrich v. Nw. Oh. Orthopedics & Sports Med., Inc.


employees protected by the ADEA, its disparate treatment of her and Azaroff’s performance

problems, its intentional understaffing of the records department, and ageist remarks by a

colleague. The district court granted Northwest’s motion for summary judgment in a thorough

opinion and order, finding that, although Helfrich presented a prima facie case of discrimination,

she failed to present evidence of pretext necessary to overcome Northwest’s performance-based

justification for her firing. Helfrich appeals.


                                                  II.


       On appeal, Helfrich renews her pretext arguments, asserting that the district court failed

to draw reasonable inferences in her favor. Giving the matter fresh review under the familiar

summary judgment standard, see Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 362 (6th

Cir. 2012), we agree with the district court that Helfrich failed to show pretext.


       Appellant challenges Northwest’s poor-performance explanation for her firing under our

three traditional pretext models, arguing that it: (1) has “no basis in fact”; (2) did not actually

cause her termination; and (3) could not justify her termination, in light of Northwest’s

preferential treatment of Azaroff. See Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530,

539 (6th Cir. 2014). Her evidence supports none of these.


       With regard to her factual-basis challenge, Helfrich stresses that the April 2011 30-day

warning served as her only disciplinary action, and that Neeley admitted the falsity of the

warning’s grievances. True enough, Neeley conceded that, as of the 30-day warning, “most” of

the performance objections “were negated,” and “some of the things . . . never happened.” (See

R. 26, Neeley Dep. at 152.) But, when asked whether she did something to modify the warning,

she testified that “there were enough things prior to [the 30-day warning]” that prevented her and

                                                  -4-
Case No. 13-4382, Helfrich v. Nw. Oh. Orthopedics & Sports Med., Inc.


head administrator Miller from rescinding the warning.           (Id. at 154; see also id. at 156

(explaining that Miller decided to issue the warning, notwithstanding the negated claims,

“because there were so many things that were already justifying this action prior to when [it]

took place”).) Furthermore, Neeley and Miller identified at least four occasions, after the April

warning, when they needed to confront Helfrich about performance problems, ranging from

delinquent assignments to unapproved overtime. Helfrich offers no evidence disputing these

complaints. And though she downplays the emails documenting these meetings as routine

employee coaching, they speak to specific grievances with her work.1


       Turning to causation, Helfrich attributes her dismissal to Northwest’s deliberate

understaffing of the records department. That, combined with Miller and Neeley’s purposeful

elimination of older employees, she contends, demonstrates that Northwest intended for Helfrich

to fail so that it could fire her too. Yet, accepting her characterization of a staffing shortage2 for

purposes of argument, Helfrich submits no evidence suggesting that Miller, Neeley, or anyone

else at Northwest made personnel decisions on account of age.             She identifies five other

dismissed protected-class employees (i.e., over the age of 40), but reveals nothing about the

circumstances of their departures indicative of age discrimination. Indeed, it appears that two of

those employees (and perhaps a third) left voluntarily. (See R. 17-1, Helfrich Dep. at 8–18.)

Helfrich emphasizes that, after her discharge, no protected-class employees remained in

       1
          Helfrich argues that Miller admits that the emails constituted normal employee coaching
and not complaints about her performance, but that overstates what Miller’s deposition says.
The relevant question did not address specific emails or complaints, and thus Miller’s answer
retracted none of the specific performance issues she and Neeley documented. (R. 25, Miller
Dep. at 206.)
        2
          Somewhat undermining her claim of an intentional staffing shortage in the records
department, Helfrich admits that Northwest “hired various part-time employees around the time
[she] completed her [30-day work-improvement plan],” whom she helped train. (Appellant Br.
at 6.) These part-time employees “ultimately could not perform the job duties.” (Id.)
                                                -5-
Case No. 13-4382, Helfrich v. Nw. Oh. Orthopedics & Sports Med., Inc.


Northwest’s records, intake, or reception departments, but the deposition testimony she cites

evinces nothing pernicious about this fact. Rather, it identifies six employees that remained in

those departments at the time of Helfrich’s termination, one of which may have been Laura

Greer—one of Helfrich’s exemplars of dismissed older employees. (R. 25, Miller Dep. at 213–

15.) Northwest, on the other hand, relies on undisputed evidence that it hired more than

25 employees over the age of 40 since the beginning of 2011, and that a majority of the nine

involuntary dismissals during that period were younger than 40. (R. 16-1, Miller Decl. ¶ 10.)


       Helfrich asks us to disregard Miller’s personnel data as self-serving, and attacks Neeley’s

veracity, citing a previous conviction. Yet, she has no evidence genuinely disputing Northwest’s

evidence. “Once the moving party [satisfies the summary-judgment burden of production], the

nonmoving party cannot rest on his pleadings but must identify specific facts that can be

established by admissible evidence, which demonstrate a genuine issue for trial.” Amini v.

Oberlin College, 440 F.3d 350, 357 (6th Cir. 2006). Thus, at a minimum, Helfrich needed to

present circumstantial evidence that Northwest treated older employees less favorably because of

their age. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009) (“[T]he plaintiff retains the

burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse

action.”); see also Schoonmaker v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir.

2010). Mere speculation will not do.3




       3
          Helfrich contends that our decision in Blizzard v. Marion Technical College required the
district court to credit her belief that Northwest forced out the five protected-class employees she
relies upon. Not so. Blizzard, which nevertheless affirmed the dismissal of the plaintiff’s ADEA
claim, stated that the district court should have considered the plaintiff’s testimony because “she
did not ‘merely offer her own opposing opinion of her qualifications, but challenged the factual
basis of [her employer’s] accusations.” 698 F.3d 275, 286 (6th Cir. 2012) (citation omitted).
Here, Helfrich proffers nothing but a vague “consensus” belief that one of the five dismissals
                                               -6-
Case No. 13-4382, Helfrich v. Nw. Oh. Orthopedics & Sports Med., Inc.


       Next, Helfrich asserts that Northwest held younger employees to less exacting

performance standards. She primarily focuses on her replacement,4 Azaroff, whom Northwest

transferred to the records department despite multiple performance problems as a receptionist.

Yet, as the district court correctly observed, Helfrich’s more than three-year tenure set her apart

from Azaroff, who began working for Northwest in April 2011. Whereas Azaroff’s performance

issues occurred during her first five months on the job (which included a three-month

probationary/trainee period) when she worked in a different department,5 Helfrich’s woes

persisted into her fourth year of employment, even after receiving a 30-day warning. (See R. 25,

Miller Dep. at 217 (explaining that Helfrich needed daily guidance that a three-year employee

should not need).) Moreover, Helfrich fails to elaborate on the similarity of Azaroff’s demerits

to hers. Azaroff’s transfer to the records department, without more, does nothing to undermine

Northwest’s performance-based rationale for firing Helfrich.


       Nor do the two additional disparities Helfrich mentions in passing: (1) Northwest’s

transfer of a non-probationary employee in her twenties, Rachel Lucius; and (2) higher pay for

younger employees.      With regard to Lucius, Helfrich offers no detail regarding Lucius’s

performance issues and transfer between two different departments (billing and intake), other

than Miller’s general testimony that “there were concerns with the functions [Lucius] was doing

in billing” that required “several” discussions. (R. 25, Miller Dep. at 91.) The dearth of



was “unfair,” but she cannot explain why. (R. 17-1, Helfrich Dep. at 10.) Such unsubstantiated
speculation does not support a reasonable inference of pretext for discrimination.
        4
          Northwest disputes Helfrich’s claim that Azaroff replaced her in the records department,
arguing that the evidence shows Azaroff’s transfer and assumption of some of Helfrich’s duties.
Because we agree that Helfrich fails to present evidence of pretext for age discrimination, we do
not reach Northwest’s alternative argument challenging her prima facie case.
        5
          Helfrich does not suggest that Azaroff’s performance problems continued following her
transfer to the records department.
                                               -7-
Case No. 13-4382, Helfrich v. Nw. Oh. Orthopedics & Sports Med., Inc.


evidence precludes meaningful comparison between their disciplinary histories. So too with

Helfrich’s disparate pay allegation. She claims that Northwest paid Azaroff an hourly rate of

$12, compared to her combined hourly rate of $11. (Appellant Br. at 21–22; R. 17-1, Helfrich

Dep. at 51.)    Meanwhile, the other younger employee she identifies, Andrew Thompson,

received the same hourly rate she did. (R. 25-5, Miller Dep. Ex. S.) Assuming Azaroff’s

claimed rate for purposes of argument, this isolated pay differential, without additional context,

does not reflect age discrimination.


       Finally, Helfrich argues that her supervisors—and the district court—disregarded the

ageist comments of a non-supervisory colleague, who called her “Mom.” Neeley testified that

the colleague “call[ed] everybody Mom,” regardless of age. (R. 26, Neeley Dep. at 172–73.)

Helfrich points to no evidence of management endorsing the comments. See Geiger v. Tower

Auto., 579 F.3d 614, 620–21 (6th Cir. 2009) (“Any discriminatory statements must come from

decisionmakers to constitute evidence of discrimination.”).         The district court properly

acknowledged that Helfrich reported these comments and found that they did not reflect age

discrimination. See Gonzalez v. El Dia, Inc., 304 F.3d 63, 70 (1st Cir. 2002) (“[A]lleged use of

the salutation ‘Mom’—though no doubt insensitive, perhaps even rude—hardly constituted a

self-sufficient foundation for an ADEA claim, especially since these particular attributions—

motherhood and advanced age—plainly are not synonymous.”).


                                               III.


       We AFFIRM.




                                              -8-
