                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 16a0061p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 AMY SUE WITHAM,                                        ┐
                                 Plaintiff-Appellant,   │
                                                        │
                                                        │
        v.                                              │
                                                         >      No. 15-5734
                                                        │
 INTOWN SUITES LOUISVILLE NORTHEAST, LLC,               │
                            Defendant-Appellee.         │
                                                        ┘
                         Appeal from the United States District Court
                      for the Western District of Kentucky at Louisville.
                      No. 3:13-cv-01167—David J. Hale, District Judge.

                              Decided and Filed: March 10, 2016

                Before: MERRITT, GIBBONS, and SUTTON, Circuit Judges.
                                 _________________

ON BRIEF: Daniel J. Canon, L. Joe Dunman, CLAY DANIEL WALTON & ADAMS, PLC,
Louisville, Kentucky, for Appellant. Marcia L. Pearson, Edward M. O’Brien, WILSON ELSER
MOSKOWITZ EDELMAN & DICKER LLP, Louisville, Kentucky, for Appellee.
                                     _________________

                                          OPINION
                                     _________________

       SUTTON, Circuit Judge. Amy Witham claims she was fired from her position as a hotel
general manager because she sought workers’ compensation after sustaining injuries on the job.
The hotel claims it fired her because she engaged in a heated verbal exchange, followed by a
physical confrontation, with someone who walked into the lobby. Happily for us (and unhappily
for Witham), we have video footage of the incident that validates the company’s version of what
happened. We affirm the district court’s grant of summary judgment to the hotel.




                                               1
No. 15-5734               Witham v. Intown Suites Louisville                         Page 2


       On November 19, 2012, Witham reported to her job at Intown Suites in Louisville,
Kentucky. Around 11:30 AM, she was standing at the front desk, talking to two men, while a
manager in training milled about nearby. Two security cameras recorded what happened during
the next few minutes.

       A man entered the lobby and sidled up to the counter in front of Witham. The vending
machine outside the lobby, he complained, had returned a bottle of water when he had pushed
the button for a can of root beer. Witham inquired about the man’s room number, but he said he
was not staying at the hotel. “Just a head’s up, that’s for guests only,” Witham replied. “You
could actually get ticketed for trespassing by the police if you’re over here and you’re not a
tenant, just so you know.” R. 14-3 at 11:25:12–:20. She said she would pass along his
complaint to the vending machine’s operators.

       After pausing for a few seconds, the man murmured something inaudible (but evidently
inflammatory), to which Witham responded, “Well, you’re not a tenant here, so you’re not gonna
talk like that in my office, and you can go ahead and leave.” Id. at 11:25:39–:43. Witham and
the man began shouting over each other, and she asked him to leave a few more times. Then she
said “bye” sarcastically and made an exaggerated waving gesture—a gesture she repeated twice
more as the man approached the door to leave. Id. at 11:25:53–:54. He said something about
how “lucky” Witham was that he had not come across the counter after her. Id. at 11:25:58–
:26:01. Witham dared him to do just that. “Come across the counter, cause it’s on camera now,
honey,” she taunted, pointing to the lobby’s security camera. Id. at 11:26:00–:04.

       The man came back toward Witham, and they both began yelling as he approached. He
raised himself up onto the front desk, kneeling on the counter that separated Witham from the
lobby. He said he would “f[***] [Witham] up” and called her a “bitch.” Id. at 11:26:07–:15.
All the while, Witham continued to egg him on, pointing to her chest and daring him to join her
across the counter. He knocked her computer monitor to the ground, and she ordered the
manager in training to “call 9-1-1 right now.” Id. at 11:26:18–:19.

       Witham left her perch behind the desk, marched to the front door, and stood directly in
front of it, blocking the man from exiting. He tried to tug the door open, but Witham jammed it
No. 15-5734                Witham v. Intown Suites Louisville                       Page 3


back shut. Then he pushed Witham into the wall, and she charged back toward him, swatting
and clawing at his face. They tussled for a few seconds, and the man slammed Witham to the
floor, kicked her twice, flung open the door, and fled—leaving the match that lit this
conflagration (an unwanted bottle of water) behind.

       The man ran into Edward Lucas, another hotel employee, just outside the building.
Witham followed from the lobby, telling Lucas to “bring him in here,” but the man continued to
flee. Id. at 11:26:44–:46. Witham returned to the hotel a few minutes later, collected her phone,
and went to the hospital to obtain treatment for injuries to her head and hand that had occurred
during the fight.

       A day or two after the confrontation, Intown’s general counsel and its chief executive
officer viewed the security footage of the incident. They discussed the video with two other
executives, and, after everyone agreed that Witham had acted unprofessionally, they placed her
on administrative leave.

       A few days later, after the intervening Thanksgiving weekend, Witham called Intown’s
benefits department to obtain a workers’ compensation claim number, and Intown set up
Witham’s claim.     That same day, the four executives who had placed Witham on leave
reconvened, and they unanimously decided to fire her for her conduct during the altercation.

       Witham filed this lawsuit in a Kentucky court, claiming that Intown had violated state
law by discharging her in retaliation for filing a workers’ compensation claim. Intown removed
the case to federal court based on the parties’ diverse citizenship, and filed a motion for summary
judgment, which the district court granted in a thoughtful opinion. Witham v. Intown Suites
Louisville N.E., LLC, No. 3:13-CV-1167, 2015 WL 3646802, at *7 (W.D. Ky. June 10, 2015).
Witham appealed.

       “No employee,” Kentucky law provides, “shall be harassed, coerced, discharged, or
discriminated against in any manner whatsoever for filing and pursuing a lawful claim under [the
workers’ compensation] chapter.” Ky. Rev. Stat. § 342.197(1). To establish a claim under this
provision, an employee must show that (1) she participated in “a protected activity,” (2) the
employer “knew” that the employee had done so, (3) the employer took an “adverse employment
No. 15-5734               Witham v. Intown Suites Louisville                        Page 4


action” against the employee, and (4) “a causal connection” existed between the two. Dollar
Gen. Partners v. Upchurch, 214 S.W.3d 910, 915 (Ky. Ct. App. 2006). If the employee meets
these requirements, the employer must identify “a non-retaliatory reason for the adverse
employment decision.” Id. at 916. And if the employer makes this showing, the employee may
still succeed by showing the proffered reasons were nothing but “a pretext” for retaliation. Id.
(quotation omitted). Through it all, the employee retains the ultimate burden to persuade the jury
“that the workers’ compensation claim was ‘a substantial and motivating factor but for which the
employee would not have been discharged.’” First Prop. Mgmt. v. Zarebidaki, 867 S.W.2d 185,
188 (Ky. 1993).

       Gauged by this standard, Witham’s retaliation claim fails. Even if she could establish the
first requirements of a claim, she cannot show that Intown’s explanations for discharging her—
supported by the video—amounted to pretext. Intown’s general counsel stated that the company
fired Witham because her behavior in the video was neither “professional [n]or necessary under
the circumstances.” R. 18-1 at 19. By encouraging the man to jump onto her desk and by
preventing him from leaving, Witham transformed a minor incident over a wrongly dispensed
water bottle into a tense conversation and eventually into a physical confrontation, violating a
number of company policies along the way. And she did all of this in front of another employee
whom she was supposed to be training. The security footage bears out the hotel’s version of
events, confirming Witham’s belligerent and unsafe conduct. Intown’s general counsel stated
that this conduct was the only factor that went into the decision to fire Witham, noting that the
executives never so much as mentioned her workers’ compensation claim. There is nothing to
rebut this evidence, making it difficult to say that retaliation played any role—let alone a
“substantial and motivating” one—in her firing.       Bishop v. Manpower, Inc. of Cent. Ky.,
211 S.W.3d 71, 76 (Ky. Ct. App. 2006).

       Seeking to fend off this conclusion, Witham points to some facts that purportedly show
that Intown’s explanation for her discharge was pretextual. She notes that, of the four executives
who decided to fire her, two were aware that she sought medical treatment, and the other two
were aware of the altercation itself—which means they knew she was eligible for workers’
compensation. The executives, she adds, viewed the security footage a day or two after the
No. 15-5734                Witham v. Intown Suites Louisville                       Page 5


incident, but they did not fire Witham until a week later, on the same day she inquired about her
workers’ compensation claim. That behavior becomes even more suspicious, Witham continues,
when one considers that they fired her without a warning despite her spotless disciplinary record.
If that is not enough, she finishes, Intown employee Edward Lucas “tackled” the man who
wanted some root beer after he exited the building and yet the company did not fire (or even
discipline) Lucas for his conduct. Appellant’s Br. 27.

       Taken together or apart, these facts do not cast doubt on Intown’s explanation for firing
Witham or more to the point create a material triable issue of fact for a jury. That the executives
knew Witham had a workers’ compensation claim does not mean they discharged her because of
that claim. Otherwise, every plaintiff who established a prima facie case—which includes a
showing that the defendant knew the plaintiff engaged in protected activity—would necessarily
satisfy the pretext inquiry. See Dollar Gen., 214 S.W.3d at 915–16. That does not respect the
burden-shifting framework for retaliation claims used by Kentucky law or for that matter federal
law. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509–11 (1993). The only relevant
testimony in the record, which comes from Intown’s general counsel, indicates that the
executives did not consider the workers’ compensation claim when they fired Witham.

       Nor does the delay in the company’s decision-making process create an inference of
retaliation. When the executives viewed the security footage a day or two after the incident, they
immediately placed Witham on administrative leave, establishing their concern about her
conduct from the get-go. They then left for a long holiday weekend, and they fired her when
they returned on Monday. Companies need not rashly discharge an employee at the first sign of
trouble to prove the sincerity of their motives, and Intown’s minimal delay does nothing to
undermine its explanation for firing Witham.

       Nor does it matter that Intown discharged Witham instead of disciplining her by using
less severe measures. The company’s employee handbook states that “there are clearly serious
infractions that are cause for immediate termination,” R. 21-1 at 3, and Witham’s conduct during
the confrontation readily qualifies.
No. 15-5734                 Witham v. Intown Suites Louisville                        Page 6


       Nor does the video footage indicate that Lucas “tackled the intruder,” as Witham asserts.
Appellant’s Br. 27. It appears instead that the fleeing man ran into Lucas or at best that Lucas
grabbed him when he came through the door. But even if Witham’s characterization is accurate,
Intown’s decision to fire an employee who escalated the conflict—while sparing an employee
who intervened at the last minute—does not suggest that its motives were retaliatory. A jury
considering these facts could not conclude that Witham’s workers’ compensation claim
contributed, let alone substantially contributed, to her firing.

       Unable to muster her own evidence establishing a genuine dispute of material fact,
Witham argues that the company’s evidence requires this case to reach a jury. She begins by
pointing to the general counsel’s testimony about the reasons for Witham’s firing, arguing that a
jury should hear this testimony to assess its credibility. Then she sets her sights on the video
footage, noting that it “is subject to multiple reasonable interpretations” and that a jury should be
permitted to draw its own conclusions. Id. at 26.

       Witham’s argument mistakes Civil Rule 56 for Civil Rule 12. If we were hearing this
case at the motion-to-dismiss stage, we would credit Witham’s plausible factual allegations, even
if Intown contested them, and reject a Civil Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555–56 (2007). But at the summary judgment phase, there must be “sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Witham may not point to the bare possibility that
a jury might disbelieve the general counsel’s testimony; she must present proof of her own that
creates a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a); see Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986). So too, it does not suffice to
argue that the jury might interpret the video differently without offering a plausible alternative
interpretation. The footage shows Witham arguing with (then physically sparring with) an
interloper in the hotel lobby, and it thus supports the company’s explanation for her discharge.
We need not deny what our eyes can see through this visual evidence or cede all ground to the
jury by suspending belief in our own eyes. We instead must “view[] the facts in the light
depicted by the videotape,” which is all that the summary judgment standard demands. Scott v.
Harris, 550 U.S. 372, 381 (2007).
No. 15-5734             Witham v. Intown Suites Louisville   Page 7


      For these reasons, we affirm.
