               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0126n.06

                                       Case No. 16-5180
                                                                                     FILED
                         UNITED STATES COURT OF APPEALS                         Feb 24, 2017
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk



CHERYL A. WHITE,                                   )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE WESTERN DISTRICT OF
COVENTRY HEALTH AND LIFE                           )      KENTUCKY
INSURANCE COMPANY; LISA                            )
CHANDLER; JENNIFER HATCHETT;                       )
DEBORAH PENNINGTON; BELINDA                        )
LONEGRAN; PATRICK MURRAY,                          )
                                                   )
       Defendants-Appellees.                       )


       BEFORE: DAUGHTREY, ROGERS, and COOK, Circuit Judges.

       COOK, Circuit Judge. Plaintiff Cheryl White claims that her former employer, defendant

Coventry Health and Life Insurance Company, violated her civil rights under Kentucky law by

discriminating against her on the basis of race, sex, and age, and retaliating against her for

engaging in protected activity. Because she has not pleaded sufficient facts to raise a plausible

inference of discrimination or retaliation, we affirm the district court’s grant of Coventry’s

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


                                                 I.

       White is a native Hawaiian woman in her fifties. Starting in 2011, she worked as a

Network Operations Manager for Coventry Insurance Company.                In September 2012, she

“received a confusing email, making it unclear to [White] whether her presence was needed” at a

meeting. When she failed to attend, she “received an email from Defendant Chandler chastising

her.” Yet “no such emails were issued when [White’s] Caucasian male counterpart, younger

employees, and other non-minority employees missed such a meeting.” Further, “through a lack

of communication overall at Defendant Coventry,” her “name was attached to different projects

and tasks” that she wasn’t responsible for.

       In October 2012, White filed a workers’ compensation claim. Immediately thereafter,

she received “complaints [about] the submission of missing Provider Medicaid ID numbers, of

which [White] was neither involved with nor had any control over, and that [White’s] perfume

was too strong.”

       A few months later, Coventry’s Vice President counseled her “that if she wanted to apply

for a different position, she had to do it before she was written up for alleged[ly] not living up to

expectations.” He further “discussed the problem areas in her department, and how her alleged

lack of understanding of the department caused ripple effects.” When she asked him why

Coventry did not fire her, he responded that “[t]he company . . . is afraid of being sued by

someone that is over 50, a minority, and a female.” Three days later he issued her “a written

warning for allegedly not living up to expectations.”

       At some point following the counseling, she applied “for the position of manager in the

Provider Relations Department,” but “never received any response whatsoever” regarding the




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Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


position. She spoke with “several other employees, and was told that there had been ‘no

qualified candidates,’” even though White “had significant experience.”

       Around the same time, Defendant Murray became White’s supervisor. The complaint

alleges that Murray didn’t understand the “ins and outs of [White’s] department,” and that

Murray’s inexperience, coupled with the recent shuffling of supervisors, “created a confusing

environment for [White] and her staff.” The “problems created by Defendant Murray resulted in

[White] being accused of not knowing her job” and “constant harassment” by her supervisors.

She complained “about the hostile work environment” to an HR representative, but the complaint

garnered no response.

       She also claims that a co-worker “verbal[ly] assault[ed]” her during a conference call.

The co-worker “cursed at [her] repeatedly” “because [White] allegedly submit[ed] reports with

missing Provider Medicaid ID numbers.” Coventry’s Chief Financial Officer, who was present

on the call, “failed to correct this rude and unprofessional behavior.”

       In addition, her supervisors’ criticism “became much more frequent and involved areas of

the department [White] was not responsible for.” To illustrate, White says that she attended

several mandatory meetings where she was “required to give answers to questions for areas of

the department her Caucasian male counterpart, Mike Montgomery, was responsible for

knowing, yet he was rarely present at these meetings.” According to the complaint, Montgomery

“was never even reprimanded for missing these meetings.”

       In January 2013, Murray told White that “she had lost her credibility and had an attitude

of irresponsibility.” A few days later, after being “diagnosed with severe depression stemming

from her traumatic work situation,” White submitted her letter of resignation. After she tendered

her resignation, an HR representative told her, “We don’t want you to work in a hostile work


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Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


environment; please work at home for the remainder of your employment.” The next day

Murray stripped her of “authority regarding decision-making as to who would be assigned to

what project, and the prioritization of projects.”

       White brought suit against Coventry and five of her co-workers and supervisors, alleging:

1) unlawful retaliation for filing a workers’ compensation claim, Ky. Rev. Stat. Ann. § 342.197;

2) discrimination on the basis of race, gender, and age, id. § 344.040; 3) unlawful retaliation for

filing a complaint about race, sex, and age discrimination, id. § 344.280; and 4) common law

promissory estoppel. The district court dismissed the complaint for failure to state a plausible

claim for relief, reasoning in part: 1) that the allegations were too conclusory and innocuous to

constitute either retaliation or discrimination; and 2) that the complaint included negligible

factual content connecting the alleged harassment to any protected characteristic.

                                                 II.

       We review de novo the district court’s grant of a motion to dismiss for failure to state a

claim. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Pedreira v. Ky. Baptist

Homes for Children, Inc., 579 F.3d 722, 727 (6th Cir. 2009)). With winnowing pen in hand, we

begin by sorting the complaint’s well-pleaded factual allegations from its legal conclusions. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And then, accepting the factual allegations as true

and construing the complaint most favorably to the plaintiff, id., we decide whether the

complaint’s factual allegations “raise a right to relief above the speculative level” and “state a

claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007). To survive a motion to dismiss, “[t]he complaint must [] contain either direct or

inferential allegations respecting all material elements to sustain a recovery under some viable

legal theory.” DiGeronimo Aggregates, LLC v. Zemla, 763 F.3d 506, 509 (6th Cir. 2014)


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Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


(alteration in original) (quoting Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th

Cir. 2012)).

                                                III.

A.     Retaliation Under the Kentucky Workers’ Compensation Act & Kentucky Civil Rights Act

       White alleges that Coventry retaliated against her because she filed a workers’

compensation claim and complained about the hostile work environment. Kentucky law provides

that “[n]o employee shall be harassed, coerced, discharged, or discriminated against in any

manner whatsoever for filing and pursuing a [workers’ compensation] claim.” Ky. Rev. Stat.

Ann. § 342.197. The Kentucky Civil Rights Act (KCRA) similarly prohibits employers from

retaliating against employees who file a discrimination complaint. Id. § 344.280. These

provisions prohibit only “materially adverse” employment actions, i.e., actions that are “harmful

to the point that they could well dissuade a reasonable worker from making or supporting” a

complaint. Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); see Brooks v.

Lexington-Fayette Urban Cty. Hous. Auth., 132 S.W.3d 790, 801–02 (Ky. 2004) (applying

federal precedent to interpret Kentucky’s retaliation provisions).1

       White points to three allegations in the complaint that she contends show materially

adverse treatment: 1) in January 2013, Murray held meetings with White’s staff that “served to

strip all of [her] authority regarding decision-making as to who would be assigned to what

project, and the prioritization of projects,” 2) “immediately following her Workman’s


       1
        In Brooks, the Kentucky Supreme Court held that the definition of retaliation is the same
under both federal and state law. At the time, however, the Sixth Circuit interpreted federal law
to require “a materially adverse change in the terms and conditions of [a plaintiff’s]
employment.” Brooks, 132 S.W.3d at 802 (quoting Hollins v. Atl. Co., 188 F.3d 652, 662 (6th
Cir. 1999)). In White, the Supreme Court overturned this narrow definition. White, 548 U.S. at
57. We need not determine whether Kentucky continues to ascribe to the pre-White definition
because the claim fails even under the more forgiving standard.
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Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


Compensation claim,” she received “complaints [about] the submission of missing Provider

Medicaid ID numbers, of which [she] was neither involved with nor had any control over”; and

3) someone complained “that [White’s] perfume was too strong, the same perfume she had worn

every day since she was hired.”

       These allegations fail to plausibly show that White suffered a materially adverse

employment action. White resigned from Coventry on January 21, 2013. According to the

complaint’s timeline, the meetings between Murray and members of White’s staff began the next

day.   The common sense explanation is that Coventry divested her authority because she

resigned. Plus, it is not illegal harassment when an insurance company censures its employee for

failing to follow its protocols—here, providing Medicaid ID numbers. White points to no case

holding otherwise. Finally, her perfume allegation leaves too much unsaid. It doesn’t: say who—

boss, colleague, or subordinate—commented on her perfume; connect the comment to her

complaints; or aver facts from which we could find the remark would dissuade a reasonable

employee from filing a claim. In short, even assuming everything she asserts to be true—as we

must at this stage—she fails to plead a plausible retaliation claim.

B.     Discrimination Based on Sex, Race, and Age

       The KCRA makes it an unlawful practice for an employer “[t]o fail or refuse to hire, or to

discharge any individual, or otherwise to discriminate against an individual with respect to

compensation, terms, conditions, or privileges of employment,” because of the individual’s race,

sex, or age. Ky. Rev. Stat. Ann. § 344.040(1)(a). We apply Title VII precedent when analyzing a

claim of discrimination under the KCRA. Pedreira, 579 F.3d at 727 (citing Hamilton v. Gen.

Elec. Co., 556 F.3d 428, 434 (6th Cir. 2009)). An employer discriminates against an employee




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Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


when it adversely changes the terms or conditions of employment because an employee is a

member of a protected group. See Kuhn v. Washtenaw Cty., 709 F.3d 612, 625 (6th Cir. 2013).

       In support of her claim that Coventry discriminated against her, White points to the

following: 1) “Plaintiff received an email from Defendant Chandler chastising her for missing a

meeting, for which Plaintiff received a confusing email, making it unclear to Plaintiff whether

her presence was needed, yet no such emails were issued when Plaintiff’s Caucasian male

counterpart, younger employees, and other non-minority employees missed such a meeting;”

2) “in several meetings where attendance was mandatory, Plaintiff was required to give answers

to questions for areas of the department her Caucasian male counterpart, Mike Montgomery, was

responsible for knowing, yet, he was rarely present at these meetings” and “was never even

reprimanded for missing these meetings;” 3) she “appl[ied] for the position of manager in the

Provider Relations Department, but, never received any response whatsoever from Defendant

Coventry in regard to the position;” and 4) when she asked her boss why the company hadn’t yet

fired her, he responded that “[w]e can’t fire you. The company (Defendant Coventry) is afraid of

being sued by someone that is over 50, a minority, and female.”

       These allegations do not show a need for the trial court to inquire further into whether

Coventry unlawfully discriminated against White. First, it is not an adverse employment action

for an employer to chastise a manager for missing a meeting, or to question a manager about her

department, even if she is not ultimately responsible for the answers. Indeed, White cites no case

holding that such unremarkable criticism constitutes an adverse action under the KCRA or Title

VII. Second, the complaint lacks facts from which the court could infer that she was qualified to

manage the Provider Relations Department. White’s only response is that she thought she was

qualified, hence why she applied. But we need not credit this “[t]hreadbare recital[]” of an


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Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


element necessary to state a failure-to-hire claim. Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 555). Last, that her boss worried about a potential lawsuit, at most, shows the employer’s

grasp of the litigation risk in firing a protected-group employee. See Partington v. Broyhill

Furniture Indus., 999 F.2d 269, 271 (7th Cir. 1993).

       Other allegations, though arguably well-pleaded, offer little from which a trier-of-fact

could infer race, sex, or age based discrimination. For example, she claims that during her

counseling with Coventry’s Vice President, he “discussed the problem areas in her department,

and how her alleged lack of understanding of the department caused ripple effects.” She avers

that Murray “accused [her] of not knowing her job.” And she contends that Pennington “cursed

at [her] repeatedly in the presence of [a] co-worker . . . because Plaintiff allegedly submitt[ed]

reports with missing Provider Medicaid ID numbers.”

       Put simply, none of these events, either independently or in combination, constituted an

adverse change in the terms and conditions of her employment. Nor has she included facts from

which we could infer that the criticism related to her race, sex, or age.

       White’s remaining allegations are wholly conclusory. For example, she posits that

“almost from the very beginning of [her] employment she suffered from harassment,

discrimination, intimidation, berating and a hostile work environment,” that she was “constantly

berated” by a supervisor, and that Murray “degraded and humiliated” her. Such naked assertions

add nothing to the complaint’s sufficiency. See Iqbal, 556 U.S. at 678.

       White seeks to analogize her complaint to the complaint in Keys v. Humana, Inc.,

684 F.3d 605 (6th Cir. 2012). But in that case, an African-American female plaintiff offered

multiple “specific adverse employment actions”—her white colleagues in identical positions

were given a different title and paid more, the employer demoted her despite meeting


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Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


performance expectations, and “ten to twelve African American manager-level employees were

placed on performance plans and then forced to resign or were terminated.” Id. at 607, 610. We

glean no comparable adverse employment actions from White’s complaint.

C.     Promissory Estoppel

       White also maintains that Coventry is liable under a theory of promissory estoppel. Under

Kentucky Law, “[a] promise which the promisor should reasonably expect to induce action or

forbearance on the part of the promisee or a third person and which does induce such action or

forbearance is binding if injustice can be avoided only by enforcement of the promise.” Sawyer

v. Mills, 295 S.W.3d 79, 89 (Ky. 2009) (quoting Meade Constr. Co. v. Mansfield Commercial

Elec., Inc., 579 S.W.2d 105, 106 (Ky. 1979)).

       According to her complaint, Coventry “utilizes a progressive disciplinary system that

mandates an employee receive a verbal warning before a written warning can be issued, and has

anti-discrimination and retaliation policies.” By “failing to issue a verbal warning before a

written warning, and practicing discrimination and retaliation, [Coventry] failed to live up to

those promises.”

       This states no plausible promissory estoppel claim. Indeed, the complaint lacks any facts

showing how White relied on Coventry’s promise to use a progressive disciplinary system.

Moreover, her allegations acknowledge that Coventry’s Vice President “counseled” her in 2012,

told her “that if she wanted to apply for a different position, she had to do it before she was

written up for alleged[ly] not living up to expectations,” and “discussed the problem areas in her

department, and how her alleged lack of understanding of the department caused ripple effects.”

It is hard to discern how this could be interpreted as anything other than a verbal warning.




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Case No. 16-5180, White v. Coventry Health & Life Ins. Co.


Further, to the extent that her claim turns on Coventry’s anti-discrimination and retaliation

policies, it fails for the reasons already discussed.

                                                  IV.

        For the above reasons, we affirm the district court’s dismissal of White’s complaint.




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