                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0458n.06
                                                                                          FILED
                                           No. 09-2260
                                                                                     Jul 07, 2011
                          UNITED STATES COURT OF APPEALS
                                                                               LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

PATRICIA PETTIT,                                       )
                                                       )
       Plaintiff-Appellant,                            )
                                                       )   ON APPEAL FROM THE
v.                                                     )   UNITED STATES DISTRICT
                                                       )   COURT FOR THE EASTERN
STEPPINGSTONE, CENTER FOR THE                          )   DISTRICT OF MICHIGAN
POTENTIALLY GIFTED and KIYO MORSE,                     )
                                                       )                  OPINION
       Defendants-Appellees.                           )


       Before: MARTIN and STRANCH, Circuit Judges, and THAPAR, District Judge.*

       JANE B. STRANCH, Circuit Judge. This is a case brought by Pettit against her prior

employer, Steppingstone, and its headmistress, Morse, alleging retaliation under the Fair Labor

Standards Act. The district court granted summary judgment to the defendants, and Pettit timely

appealed that order. We affirm.

I.     Background

       A.      Factual Background

       Patricia Pettit began working for Steppingstone in January 2006 under a part-time barter

arrangement whereby Pettit’s salary was credited towards the tuition of her three sons. Her starting




       *
       The Honorable Amul Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

                                                -1-
No. 09-2260
Pettit v. Steppingstone

title was Director of Admissions, and she also began to serve as Director of Human Resources in the

fall of 2006.

       All employees at Steppingstone worked under one-year form letter agreements, generally

spanning a single fiscal year (August to August). Employees were required to sign a new agreement

every year, although often Steppingstone failed to provide new contracts, and employees continued

to work anyway. Pettit signed her first letter agreement with Steppingstone in September 2006,

which expired in December 2006. She was never presented with a written contract during the 2007

calendar year. Other non-faculty employees signed one-year contracts in August 2007, which had

been revised by legal counsel and differed substantially from prior years’ versions.

       As Director of Human Resources, Pettit suspected two employees were misclassified under

the Fair Labor Standards Act (“FLSA”), and in December 2007 she so advised her supervisor and

head of the school, Kiyo Morse. Throughout December, Pettit investigated, contacted outside legal

counsel for an opinion, and drafted an informative memorandum which she gave to Morse. At the

same time, Morse was preoccupied with an event of major concern for Steppingstone, the relocation

of the entire campus from the current donated property to a leased property. Morse worried that this

relocation would harm enrollment and potentially threaten the school’s existence, and so she told

Pettit to concentrate on admissions, rather than human resources. In fact, as Morse reminded Pettit

in an e-mail in February 2008, she had told Pettit at every meeting since returning from the New

Year’s break in January 2008 that “I need you to put all your time and energy into admissions.”

       Hourly employees at Steppingstone were required to keep a “work diary” to catalogue daily

activities. In December 2007, Morse reminded Pettit that she was supposed to be keeping a work

                                                -2-
No. 09-2260
Pettit v. Steppingstone

diary. Morse asked another employee, Sandra Blay, to lay out specific instructions about the diary

in an e-mail to all hourly employees, including Pettit. The e-mail was sent on January 14, 2008. At

about that time, Pettit began to press Morse on the perceived FLSA issue.

        On January 15, 2008, Pettit brought up the FLSA issue in an office meeting. It appears that

this was the only time Pettit and Morse engaged in a face-to-face conversation about her FLSA

concerns, as evidenced by a later e-mail from Morse to Pettit asking why, if Pettit wanted to discuss

the issue, she never raised it in any of their regular weekly meetings. Instead, Pettit pursued the issue

with Morse electronically.      That same day she sent the first in a series of lengthy e-mail

communications to Morse about FLSA compliance. These e-mails spanned three, four, up to seven

pages, single-spaced, and took an increasingly personal and accusatory tone towards Morse.

        On February 1, 2008, Pettit sent an e-mail to the Executive Committee of the Steppingstone

Board of Trustees which read, in relevant part:

        As your Human Resources Director as well as your Admissions Director, it is my
        professional opinion that Steppingstone School for Gifted Education has been and
        continues to be in violation of the Fair Labor Standards Act. I have notified/re-
        notified school administration regarding the problem numerous times in writing and
        verbally over the last 8 weeks. Responses indicate to me little interest in coming into
        compliance at this time. Further, numerous indications are that there is little
        understanding of the issues so I am unclear that there will ever be interest in coming
        into compliance.

        Should Steppingstone decide to create a Wage and Hour program that is in
        compliance with the law by February 15, 2008, I will enthusiastically support the
        decision and work to meet that goal in addition to dedicating myself to our
        admissions goals. Should Steppingstone decide not to seek the support of
        professional resources to rectify the problem, as I do not want to be in a position of
        knowingly working in an organization that is out of legal compliance, I see no choice
        but to report unlawful activity to the U.S. Department of Labor.


                                                  -3-
No. 09-2260
Pettit v. Steppingstone

       This e-mail developed into the first of several e-mail chains between Pettit, Morse, and/or

members of the Board. For three days, Pettit, Morse, and Richard Niemisto, a member of the

Executive Committee, engaged in back-and-forth e-mailing about Steppingstone’s FLSA

compliance, in which Pettit ultimately called into question Morse’s ability to make an informed

decision. At the same time, Morse and Pettit were engaged in communications on an e-mail chain

about the work diary requirement, in which Pettit suggested Morse was spreading gossip about her.

       On February 3, 2008, Pettit sent Morse yet another e-mail, copying the entire Executive

Committee, in which Pettit complained that Morse failed to deal with all of Pettit’s concerns about

FLSA compliance. A back-and-forth exchange continued daily between Morse and Pettit, copying

the Committee, and on February 5, 2008 Pettit asserted her own FLSA rights in her response e-mail.

       And also, recently now that you’ve emailed to me that I am ‘hourly’ which was
       different than how we were handling what I understood to be an exempt classification
       and how it would be handled properly on the books . . . , you will owe me – and this
       is a quick guess – probably over $1000 for work (2007 – doesn’t include 2006) you
       knew I performed but was not put down on my time sheet . . . . There is a two year
       statute of limitations, I believe, on issues like this.1

       Subsequent to that, Pettit again e-mailed Morse to point out the flaws and inconsistencies she

found in Morse’s approach to the FLSA issue and questioned Morse’s honesty in relaying

information to Pettit. Morse sent Pettit a final message on February 7, 2008 stating, “Dear Pat, I

think we’ll have to agree to disagree and move on to the issues of admissions, which I repeat, is

where the focus needs to be.”


       1
        Pettit believed that she herself had been previously classified as exempt, but that Morse had
begun treating her as an “hourly,” and presumably non-exempt employee, thus entitling her to
overtime pay.

                                                 -4-
No. 09-2260
Pettit v. Steppingstone

       However, Pettit had already made clear to Morse that she did not intend to leave the FLSA

issue and focus on admissions, despite Morse’s repeated instructions to do so. In a February 3 e-mail

to Morse and the Executive Committee, Pettit explains why she would not work as instructed:

       You have let me know that your focus must be on the building issue – very
       understandable. Unfortunately, as I have indicated to you, that won’t be a good
       defense if a non-compliance charge comes our way . . . . Further, never have I been
       in a position to have to choose between following the law and following my boss’
       [sic] direction . . . .

       I am also organizationally minded, so that my work focuses on what’s right for the
       organization [sic] will be right for all associated in the long run. In weighing
       everything out, I came to the very difficult decision to push this issue to the board
       level.

       I have never entertained an ‘end run’ with any other manager in my career. The
       communication problems have reared up so strongly externally and internally in the
       last nine months, that I have felt compelled not once but twice in the last two months.

       This is an extremely unpleasant position for me. And an unnecessary waste of time
       and resources, from my point of view.

       Overall, Pettit’s e-mails show that rather than focusing on admissions now as instructed and

returning to the FLSA issue at a later date, Pettit was spending her work time on a campaign to

institutionalize her view of the FLSA and to force the immediate creation of a wage and hour policy

in accord with her expectations. Her lengthy communications also extended beyond that purpose

to include comments on Morse’s capabilities as a supervisor, such as: “Your investment of time in

back and forth emails when I am right down the hall is a strong indicator of a problem beyond wage

and hour compliance;” and “[T]he information here clearly indicates avoidance, conflict, poor

communication and the absence of teamwork at the minimum.” Pettit presented this stream of

complaint and comment to and about Morse before members of the governing Board.

                                                 -5-
No. 09-2260
Pettit v. Steppingstone

        On February 5, 2008, during this period of debate, Morse presented Pettit with a contract for

the remainder of the 2007-2008 year that included new provisions. In August 2007, other non-

faculty employees had signed a new contract that had been revised by counsel. The contract

proposed to Pettit contained provisions that were unfavorable to her: her human resources duties

were removed; it expired on June 20, 2008 rather than at the end of the fiscal year; her schedule was

set to specific hours on certain days; and her salary could not be credited towards non-tuition

expenses. Pettit did not sign the contract.

        On March 11, Morse presented Pettit with a revised contract including additional provisions

added by the school’s attorney. The new provisions included: a requirement that Pettit report only

to Morse; a limitation of Pettit’s hours to 20 per week unless “specifically authorized in writing by

the Head of School”; a termination clause allowing termination by either party for any reason given

30 days’ written notice; a confidentiality provision; a non-compete provision; an arbitration

provision; and a provision limiting Pettit’s right to sue to 180 days after any actionable event.

        Pettit hired her own attorney to negotiate the contract terms, and a number of contract drafts

were exchanged. Morse yielded in changing the contract to expire on December 31, 2008 but

refused other changes. She gave Pettit a “final” contract on May 5, 2008, and Pettit declined to sign

it, instead insisting upon further negotiation.

        On May 9, 2008, Pettit showed up for work, but Morse sent two other employees outside to

tell Pettit either to sign her contract or turn in her keys. Pettit refused to do either, instead telling her

co-workers that she would discuss her contract with Morse. Morse refused to come out to speak



                                                    -6-
No. 09-2260
Pettit v. Steppingstone

with Pettit, and instead contacted a Board member who sent two uniformed police officers to escort

Pettit from the premises.

        B.      Procedural Background

        At the conclusion of discovery, Defendants moved for summary judgment. On September

1, 2009, the district court granted summary judgment to the Defendants, finding that Pettit had made

her prima facie case of retaliation but failed to prove pretext. Specifically, the court found that Pettit

had not presented sufficient evidence to rebut Defendants’ legitimate business explanations for the

adverse actions taken against her. The district court also found Pettit not to be credible. She timely

filed this appeal.

II.     Analysis

        A.      Standard of Review

        This Court reviews a district court’s grant of summary judgment de novo. Staunch v. Cont’l

Airlines, Inc., 511 F.3d 625, 628 (6th Cir. 2008). Summary judgment is appropriate if the record

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). The moving party has the burden of proving the absence

of a genuine issue of material fact and its entitlement to summary judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden can be discharged by showing that

the nonmoving party has failed to establish an essential element of his case, for which he bears the

ultimate burden of proof at trial. Id. To refute such a showing, the nonmoving party must present

some significant, probative evidence indicating the necessity of a trial for resolving a material,

factual dispute. Id. at 322. A mere scintilla of evidence is not enough. Anderson v. Liberty Lobby,

                                                   -7-
No. 09-2260
Pettit v. Steppingstone

477 U.S. 242, 252. All facts, including inferences, are viewed in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       B.      The Sufficiency of Pettit’s Evidence under the Burden-Shifting Analysis

       The Fair Labor Standards Act proscribes retaliation by “discharg[ing]” or otherwise

“discriminat[ing] against any employee because such employee has filed any complaint or instituted

or caused to be instituted any proceeding under or related to this Act.” 29 U.S.C. § 215(a)(3) (2010).

Claims of FLSA retaliation are subject to the burden-shifting framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). See Adair v. Charter Cnty. of Wayne, 452 F.3d 483, 489 (6th

Cir. 2006).

       On a motion for summary judgment, the district court considers whether there is
       sufficient evidence to create a genuine dispute at each stage of the McDonnell
       Douglas inquiry. Thus, the plaintiff must first submit evidence from which a
       reasonable jury could conclude that a prima facie case of discrimination has been
       established. The defendant must then offer sufficient evidence of a legitimate,
       nondiscriminatory reason for its action. If the defendant does so, the plaintiff must
       identify evidence from which a reasonable jury could conclude that the proffered
       reason is actually a pretext for unlawful discrimination.

Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 364 (6th Cir. 2007) (internal citations and

quotation marks omitted). Pettit asserts error by the district court at every stage of the McDonnell

Douglas inquiry.

       C.      Plaintiff’s Four-Part Prima Facie Case

       To make her prima facie case of retaliation, the plaintiff must prove that (1) she engaged in

protected activity under the FLSA; (2) her exercise of this right was known by the employer; (3) the




                                                 -8-
No. 09-2260
Pettit v. Steppingstone

employer took an employment action adverse to her; and (4) there was a causal connection between

the protected activity and the adverse employment action. Adair, 452 F.3d at 489.

               1.         Protected Activity

       A prototypical claim of FLSA retaliation involves a complaint of FLSA violation made in

the interest of employee(s), generally regarding some aspect of one’s own pay or the pay of other

employees. Under FLSA retaliation law, Pettit’s situation is different because her complaints were

made in her capacity as Director of Human Resources, alleging misclassification of other employees

and lack of a company-wide wage and hour policy. To the degree that Pettit’s FLSA complaints

were made in the course of performance of human resource job duties assigned to her and undertaken

for the purpose of protecting the interests of the employer, they do not constitute protected activity

under § 215(a)(3).2

       Under FLSA retaliation law, there is a legally cognizable distinction between the

performance of job duties and the assertion of one’s own FLSA rights or the rights of others. For

an employee specifically tasked with personnel or human resources duties, dealing with FLSA

compliance is part of the job, to be undertaken with the interests of the employing company in mind.


       2
          While the Sixth Circuit has not addressed the issue of distinguishing job performance from
protected activity, district courts within the Circuit have come to the conclusion that complaints
within the scope of one’s job duties cannot be protected activity. See, e.g., Pettit v. Steppingstone
Ctr. for the Potentially Gifted, No. 08-12205, 2009 U.S. Dist. LEXIS 78262 (E.D. Mich. Sept.1,
2009); Samons v. Cardington Yutaka Techs, Inc., No. 2:08-cv-988, 2009 U.S. Dist. LEXIS 30398,
*15-16 (S.D. Ohio April 7, 2009); Robinson v. Wal-Mart Stores, Inc., 341 F. Supp. 759 (W.D.
Mich. 2004). The other Circuits that have addressed the issue have reached the same conclusion.
See, e.g., Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 627-28 (5th Cir. 2008); Claudio-Gotay
v. Becton Dickinson Caribe, Ltd., 375 F.3d 99, 102 (1st Cir. 2004); EEOC v. HBE Corp., 135 F.3d
543, 554 (8th Cir. 1998); McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486-87 (10th Cir. 1996).

                                                 -9-
No. 09-2260
Pettit v. Steppingstone

An assertion of FLSA rights, on the other hand, will normally be specific to one or more employee(s)

or a class of employees and will usually be made in the interests of that employee, group or class of

employees and, thus, may be adverse to the employer’s interests.

        In this case, Pettit brought her concerns about Steppingstone’s FLSA compliance to Morse’s

attention on several occasions, primarily in January and February 2008. Pettit argues that her

repeated disclosures to Morse and the Steppingstone Board all constitute protected activity under

§ 215(a)(3). However, the district court determined that only one of Pettit’s complaints, the February

1, 2008 e-mail to the Executive Committee, constituted protected activity. We agree that Pettit’s

invocation of threatening language took her February 1 complaint outside the realm of job

performance. Although she suggests she is acting in her official capacity (“As your Human

Resources Director . . . , it is my professional opinion that . . .”), she is clearly stepping outside her

official capacity, as any action resulting from this complaint would be adverse to Steppingstone.

        Additionally, we find Pettit’s February 5 e-mail to Morse and the Executive Committee also

constitutes protected activity because Pettit asserts a violation of her own FLSA rights, namely

Steppingstone’s failure to pay her approximately $1,000 in overtime pay. Pettit also implies she

could institute legal action, an act clearly in her own interest and, thus, outside her job duties.

        The complaints made by Pettit prior to the February 1 e-mail are not protected activity, as

they were undertaken on behalf of the interests of the school and neither assert individual or group

rights nor threaten action adverse to the school. Instead, Pettit’s requests were for Steppingstone to

change its wage and hour policy, one of her responsibilities as Human Resources Director. Pettit

now argues that she was not responsible for Steppingstone’s FLSA compliance while employed with

                                                  -10-
No. 09-2260
Pettit v. Steppingstone

the school. However, Pettit’s basis for bringing this issue to the school’s attention was her

insistence, in her stated capacity as Human Resources Director, that Steppingstone immediately

comply with her determinations regarding application of the FLSA.

       Finally, the Defendants argue that even if Pettit’s threat to report violations would ordinarily

constitute protected activity, in this case the threat is not protected by the FLSA anti-retaliation

provision because Morse had already remedied the violation by consulting outside counsel. It is

unnecessary to address that issue here. As this Court has stated previously, corrective action is

appropriately considered under the causal connection element of the plaintiff’s prima facie case and

is not relevant to the issue of whether the plaintiff engaged in protected activity. Moore v. Freeman,

355 F.3d 558, 562-63 (6th Cir. 2004).

       Pettit satisfied step one of her prima facie case: she engaged in protected activity under the

FLSA in her February 1 and 5 emails.

               2.         Exercise of Right

       The parties agree that Steppingstone was aware Pettit claimed to be exercising her rights

under the FLSA. Pettit established step two.

               3.         Adverse Action

       “The antiretaliation provision protects an individual not from all retaliation, but from

retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,

67 (2006). “[A] plaintiff must show that a reasonable employee would have found the challenged

action materially adverse, which in this context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Id. at 68 (internal citations and

                                                -11-
No. 09-2260
Pettit v. Steppingstone

quotation marks omitted). To be materially adverse, an adverse action “must be more disruptive than

a mere inconvenience or an alteration of job responsibilities.” Kocsis v. Multi-Care Mgmt., 97 F.3d

876, 886 (6th Cir. 1996) (internal citations and quotation marks omitted). Though not by way of

limitation, this Circuit has enumerated certain employment actions that are usually indicative of

material adversity, including “termination of employment, a demotion evidenced by a decrease in

wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material

responsibilities, or other indices that might be unique to a particular situation.” Bowman v. Shawnee

State Univ., 220 F.3d 456, 461-62 (6th Cir. 2000) (internal quotation marks omitted).3

        Pettit argues that Defendants took a number of adverse actions against her. Specifically, she

points to: (1) termination; (2) her children’s “de facto expulsion” from school; (3) Steppingstone’s

insistence on a revised contract with adverse conditions, including removal of human resources

duties; (4) denial of a raise; (5) reduction in number of work hours unless authorized; (6) removal

of children from enrichment classes; (7) disallowing Pettit to barter for enrichment classes; (8)

imposing new timekeeping requirements; and (9) elimination of a just cause provision in her

employment contract. On appeal, Defendants concede that two of the actions taken against Pettit

were materially adverse: (1) the removal of Pettit’s human resources duties, and (2) the contract term

prohibiting Pettit from bartering for extended day service for her children.




        3
         However, as the Court held in Burlington, for the purpose of retaliation, adverse actions are
not limited to employment actions, but encompass a broader range of actions, even outside the
employment context, that harm an employee. 548 U.S. at 61-67.

                                                  -12-
No. 09-2260
Pettit v. Steppingstone

       Termination is a materially adverse action against an employee. See, e.g., Bowman, 220 F.3d

at 462. Defendants’ argument that they never terminated Pettit, that she voluntarily quit by not

signing her new contract, is unconvincing. A significant change in the terms of employment

imposed by an employer may constitute a constructive discharge. However, requiring an employee

to sign an employment agreement is not actionable if there are no materially adverse changes to the

terms of the employment in the agreement. Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987).

Because certain terms of the various contracts presented to Pettit in 2008 differed materially and

adversely from her prior agreements with Steppingstone, the insistence that Pettit sign the contract

constitutes an adverse employment action.4

       While Defendants have conceded the adverse nature of disallowing Pettit to barter for

extended day care services, they do not concede adversity with regard to Pettit’s claim that she was

no longer allowed to barter for after-school enrichment classes. The evidence demonstrates that the

ability to barter for these classes was never part of Pettit’s arrangement with Steppingstone. Pettit

alleges that, prior to her February 1 e-mail, her children were routinely allowed to take these classes

by offsetting the cost against her hours. However, the Defendants have offered invoices and

canceled checks indicating that Pettit paid for the classes in 2006 and 2007. Morse states that one

class was mistakenly credited against Pettit’s earnings in 2008 due to error by the office

administrator. Because Pettit did not have the ability to barter for enrichment classes before her




       4
         We consider Pettit’s argument that the elimination of the just-cause provision of her
contract constitutes an adverse action to be subsumed in the requirement that Pettit sign a contract.

                                                 -13-
No. 09-2260
Pettit v. Steppingstone

protected activity, Defendants’ refusal to allow her to barter after her complaints cannot constitute

adverse action.5

       The remainder of the adverse actions alleged by Pettit on appeal - the reduction of her hours

and the imposition of time-keeping requirements - do not qualify as materially adverse. First, we

are not convinced that the 20-hour-per-week restriction constitutes a change at all. Pettit’s 2006

contract set her hours at less than 10 per week, specifically on Tuesdays, Wednesdays, and Thursdays

from 9:00 until 11:30 a.m., “to be expanded by mutual agreement as needs dictate.” The new

contract stated that Pettit’s work hours were to be limited to 20 per week unless Morse gave approval

to exceed that number. Pettit’s relationship with the school had always required agreement of the

school for expansion of hours over a minimal number. Therefore, the contract provision does not

qualify as a new materially adverse condition imposed by the employer.

       The time-keeping diary requirements fail also. They were requested prior to Pettit’s

undertaking protected activity and were required of other employees. Even if time keeping were

considered a new condition, it affected neither Pettit’s position nor compensation and is the type of

inconvenience that falls short of an actionable level of material adversity.

       Because Pettit has established some of her allegations of adverse action, she satisfies step

three of her prima facie case.




       5
          We treat Pettit’s argument that Defendants’ pulling her children from their enrichment
classes is an adverse action as being part and parcel of this argument that the loss of the enrichment
classes as a benefit of employment is an adverse action.

                                                -14-
No. 09-2260
Pettit v. Steppingstone

                4.        Causal Connection

        “[T]o establish the element of causal link a plaintiff is required to proffer evidence sufficient

to raise the inference that her protected activity was the likely reason for the adverse action.” EEOC

v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997) (internal quotation marks and citation

omitted). At this stage, the plaintiff’s burden to show causation entails “requiring the plaintiff to put

forth some evidence to deduce a causal connection between the retaliatory action and the protected

activity and requiring the court to draw reasonable inferences from that evidence, providing it is

credible.” Id. The burden is easily met.

        Closeness in time between the protected activity and the adverse action is strong evidence,

but “temporal proximity, standing alone, is not enough to establish a causal connection for a

retaliation claim.” Spengler v. Worthington Cylinders, 615 F.3d 481, 494 (6th Cir. 2010). However,

temporal proximity combined with other evidence of “retaliatory conduct” can be enough to prove

this element of a plaintiff’s prima facie case. Id. One example of such sufficient, additional

evidence is evidence of disparate treatment. See Cantrell v. Nissan N. Am. Inc., 145 F. App’x 99,

105-06 (6th Cir. 2005).




                                                  -15-
No. 09-2260
Pettit v. Steppingstone

        Pettit has met her burden to prove causal connection.6 She was given an employment

contract containing a number of unfavorable terms only 4 days after her February 1 e-mail and on

the same day as her February 5 e-mail, thus creating an inference of retaliation through temporal

proximity. Additionally, the parties agree that the contracts presented to Pettit differed materially

from those presented to Pettit in previous years and to other employees the same year. Thus, Pettit

has presented sufficient proof of causation to satisfy the fourth step of her prima facie case.

                5.        Direct Evidence as Alternative to Inferential Evidence of Retaliation

        In addition to arguing that she has offered sufficient evidence of prima facie retaliation to

shift the burden to the Defendants under McDonnell Douglas, Pettit alternatively argues the district

court erred in applying the McDonnell Douglas framework to her claim. She alleges she provided

direct evidence of retaliation, which removes her claim from the burden-shifting framework. The

evidence presented by Pettit, while applicable to her prima facie case, is not direct evidence of

retaliation or retaliatory motive.

        “Direct evidence is evidence, which if believed, does not require an inference to conclude

that unlawful retaliation motivated an employer’s action.” Spengler, 615 F.3d at 491. In other



       6
         Defendants argue that they took action to correct any FLSA problem, negating Pettit’s
showing of causal connection. The corrective action asserted is a conversation between Morse and
one member of the Board, Nancy Furman, who has a master’s degree in human resources.
According to Furman’s deposition, Morse asked Furman if she knew the laws for overtime. Furman
responded that anything over forty hours a week was time and a half by law unless the employee is
exempt. Furman could not remember the month or year this conversation took place. Because there
are genuine factual issues as to when this conversation took place and whether it constituted
“corrective action,” granting summary judgment on this ground would be inappropriate.

                                                -16-
No. 09-2260
Pettit v. Steppingstone

words, direct evidence requires the drawing of the conclusion that the defendant retaliated against

the plaintiff. Id. In this case, Pettit points to an e-mail from Morse in which she tells Pettit that her

hours will be capped at 20 per week “until the FLSA issues have been resolved.”7

        This e-mail is germane to proving Pettit’s prima facie case and does raise questions; however,

it is insufficient to constitute direct evidence of retaliatory intent because, standing alone, it requires

an inference of intent to reach the conclusion of unlawful motive. Pettit infers that Morse was

impermissibly motivated by Pettit’s prior complaints in restricting her hours. It could also be

inferred that Defendants were restricting her hours to enforce her part-time status for budgetary

reasons and to enforce Morse’s prior requests that Pettit spend all her time on admissions. The fact

that an inference is required to get from the e-mail to Morse’s motive disqualifies it as direct

evidence.

        D.      Defendants’ Legitimate Reasons for their Adverse Actions

        Once plaintiff has established her prima facie case, the burden shifts to the employer to

“articulate some legitimate, nondiscriminatory reason for the employee’s [discharge].” McDonnell

Douglas, 411 U.S. at 802.

        Establishment of the prima facie case in effect creates a presumption that the employer
        unlawfully discriminated against the employee . . . .


        The burden that shifts to the defendant, therefore, is to rebut the presumption of
        discrimination by producing evidence that the plaintiff was rejected, or someone else


        7
       Pettit also points to four other examples of what she calls “the lead up” to this e-mail.
However, none are direct evidence.

                                                   -17-
No. 09-2260
Pettit v. Steppingstone

       was preferred, for a legitimate, nondiscriminatory reason. The defendant need not
       persuade the court that it was actually motivated by the proffered reasons. It is
       sufficient if the defendant's evidence raises a genuine issue of fact as to whether it
       discriminated against the plaintiff.


Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-255 (1981) (citations omitted). The

employer’s burden at this stage is one of production, not persuasion. Reeves v. Sanderson Plumbing

Prods., 530 U.S. 133, 143 (2000).

       The adverse action established by Pettit is, at its core, a claim based on the contract required

by Steppingstone. The gravamen of her argument is that she was required to sign a contract with

terms so adverse and onerous that it effectively ended her employment, whether that end is defined

as a termination or a constructive termination.

       Defendants proffer a legitimate, non-retaliatory explanation for their insistence on the

adverse provisions of Pettit’s contract. First, Defendants argue that Pettit was stripped of her human

resources duties because the school was in an enrollment crisis due to the relocation and needed her

to focus on admissions, which would determine whether the school could survive in its new location.

Morse also stated in her deposition that Pettit was not particularly skilled at human resources tasks.

Second, Defendants assert that they limited Pettit’s hours to twenty per week absent approval due

to budget concerns related to the relocation. Third, Defendants contend that they prohibited Pettit

from bartering for time in the extended day program because Pettit abused her ability to use the

program free of charge by gradually working later and longer hours. Finally, to the extent Pettit’s

contract differed from those presented to other non-faculty employees, Defendants assert that they



                                                  -18-
No. 09-2260
Pettit v. Steppingstone

based those changes on the advice of counsel and such clauses were necessitated by Pettit’s position,

responsibilities and behavior.

        At this stage, Defendants have the burden of production. They have satisfied that burden by

presenting legitimate business reasons that raise a genuine issue of fact as to whether they

discriminated against Pettit.

        E.      Pretext

        At the final stage of the McDonnell Douglas inquiry, the burden of production requires the

plaintiff to prove the employer’s proffered reasons for its adverse actions against the employee were,

in fact, pretext for retaliation. “To raise a genuine issue of fact as to pretext and defeat a summary

judgment motion under this position, the Plaintiffs must show that (1) the proffered reason had no

factual basis, (2) the proffered reason did not actually motivate Defendants’ action, or (3) the

proffered reason was insufficient to motivate the action.” Adair, 452 F.3d at 491 (citations omitted).

        This Court recognizes the appropriateness of plaintiff’s presentation of overlapping evidence

in support of both the causal connection element of the prima facie case and the pretext stage of

inquiry. While evidence of causal connection at the prima facie stage is often probative of pretext

also, the plaintiff’s burden at the prima facie stage is easily met. However, that evidence may be

insufficient, standing alone, to raise a genuine issue as to pretext. See, e.g., Blair v. Henry Filters,

Inc., 505 F.3d 517, 533 (6th Cir. 2007) (“[T]he evidence that [the plaintiff] produce[s] in support

of his prima facie case may, but will not necessarily, suffice to show a genuine issue of material fact

concerning pretext and thus to survive summary judgment.”) (overruled on other grounds).


                                                 -19-
No. 09-2260
Pettit v. Steppingstone

Importantly, any requirement of additional evidence “is limited to the production of evidence

rebutting the defendant’s proffered legitimate, nondiscriminatory reason for taking the challenged

action.” Id. at 533 (discussing Reeves, 530 U.S. at 149).

        In satisfying the prima facie, causal-connection requirement, Pettit presented evidence of both

temporal proximity and disparate treatment in the terms of her contract. In support of her burden to

show pretext, Pettit relies on this same evidence with additional responses to Defendants’ claimed

legitimate reasons for their actions. The district court granted summary judgment to Defendants on

the basis that Pettit had not proven pretext. Its decision was based, in part, on an adverse credibility

determination - that Pettit’s behavior cast doubt on her credibility. It is not proper to weigh

credibility against the non-movant on a motion for summary judgment. See Bennett v. City of

Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (“In reviewing a summary judgment motion,

credibility judgments and weighing the evidence are prohibited. Rather, the evidence should be

viewed in the light most favorable to the non-moving party.” (citing Anderson, 477 U.S. at 255)).

        However, this Court may affirm a trial court decision on alternative grounds that support the

decision on the record. Murphy v. Nat’l City Bank, 560 F.3d 530, 535 (6th Cir. 2009). We find that

the record, as well as the district court’s rationale not based on Pettit’s credibility, support

affirmance. Pettit has not rebutted Defendants’ proffered, legitimate reasons for their actions. Pettit

never specifies which of the three pretext factors applies to her situation, but it appears she seeks to

show that the “proffered reason[s] did not actually motivate Defendants’ action.” To do so, Pettit

must present some evidence rebutting each of those proffered reasons. Temporal proximity is



                                                 -20-
No. 09-2260
Pettit v. Steppingstone

insufficient to carry this burden. An examination of Plaintiff’s pretext evidence shows it to be

insufficient as well.

        The removal of Pettit’s human resources duties. As a legitimate reason for this action,

Defendants proffered that Pettit’s attention was needed in admissions due to the school’s relocation

crisis and the fact that she was not particularly skilled in the area of human resources. To show that

these reasons are pretextual, Pettit states that she was available to work more hours to complete both

the admissions and human resources duties. But that does not tend to rebut Defendants’ rationale

nor address the stated concerns. Pettit fails to dispute the real issues: that Steppingstone was facing

an enrollment crisis that threatened the existence of the school; that based on the school budget and

this crisis, she had been requested since January to concentrate all her efforts on admissions; that she

was asked to “agree to disagree” on the human resources issue until after the crisis; and, that Pettit

refused to do so. Further, Pettit makes no attempt to show that she was, in fact, skilled in human

resources. Thus, we are left with the conclusion that Pettit failed to show Defendants’ legitimate

reason for the removal of her human resources duties was pretext.

        No bartering for extended day care. As legitimate reasons for this action, Defendants

proffered that: Pettit abused her limited ability to use the program without charge; because she was

supposed to be part-time, it was never intended that she could use the program extensively; and,

another employee who overused the program was also charged. To show pretext, Pettit states that

she was never asked to reduce her use of the program. While this may raise a question, it is

insufficient to create a genuine issue as to pretext. Defendants showed that Pettit was not actually



                                                 -21-
No. 09-2260
Pettit v. Steppingstone

charged for much of her use of the program in March, April, and May 2008, and that another

employee was charged for excess use of the program in the same way Pettit was. Further, because

Pettit was hired as a part-time employee limited to a set schedule during school hours, Defendants’

explanation that it never intended for Pettit to use the day care program extensively is certainly

legitimate. Defendants’ failure to request that Pettit reduce her use of the program is not sufficient

to rebut the evidence and reasoning proffered by Defendants, and thus no genuine issue of fact exists

as to this term.

        Termination and Insistence that Pettit sign the new, adverse employment contract. As

discussed earlier, Defendants allege Pettit was not terminated but was no longer employed because

she failed to sign her employment contract, which was required of all employees for continued

employment. Pettit alleges termination and, to show pretext, states that Morse lied to other

employees about the termination, saying that Pettit had quit to devote more time to her sons and to

scrapbooking. We view this issue as akin to constructive discharge. Thus, the adverse action that

resulted in Pettit’s loss of employment is more appropriately addressed under Steppingstone’s

insistence on an employment contract with new and adverse terms. To show pretext regarding that

action, Pettit argues she was the only employee required to sign a contract so favorable to

Steppingstone’s interests. Pettit is correct that disparate treatment is probative of retaliatory intent.

See, e.g., Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 524 (6th Cir. 1997); Reynolds v. Humko

Prod., 756 F.2d 469, 472-73 (6th Cir. 1985). However, Pettit has failed to show that she is similarly

situated to the employees whose contracts were different. We do not require an exact match in a



                                                  -22-
No. 09-2260
Pettit v. Steppingstone

comparator, but our comparison must nonetheless take into account Pettit’s burden to rebut the

legitimacy of Defendants’ proffered reasons.

        As the nondiscriminatory basis for the differences between Pettit’s contract and that of other

Steppingstone employees, Defendants note that the school crisis, Pettit’s unique position as Director

of Admissions and her actions are legitimate reasons for making the changes to Pettit’s contract upon

the advice of counsel. In regard to the charge that Pettit’s contract was different from those of other

employees and from her own prior contract, it is also important to note that: Pettit’s original contract

was merely a form; it included language negotiated by Pettit that differed from the contracts signed

by other employees; Defendants had the form contract revised in the summer of 2007 to better

safeguard the school’s interests,8 and that revised contract was presented to, and signed by, all other

Steppingstone employees.

        Though all employment contracts were changed in Steppingstone’s favor in 2007, it is true

that Pettit’s contract also differed in its terms from those of other employees. While this is not an

easy case, the record supports a finding that Pettit’s behavior, bordering on insubordination, was a

reasonable basis for inserting into her contract certain terms drafted by counsel to safeguard

Steppingstone’s interests. Pettit’s position, contract negotiations and her actions make her dissimilar

from the other employees. No other employee had retained legal counsel to negotiate the particulars

of an employment contract that had and would contain provisions different from those of other




       8
       For example, the revised contract included a liquidated damages clause for breach by the
employee.

                                                 -23-
No. 09-2260
Pettit v. Steppingstone

employees. More telling is the lack of similarity based on Pettit’s actions. No other employee had

attacked Morse’s character and abilities or aired grievances in lengthy series of e-mails that copied

and sought to engage the Board of Trustees. Perhaps most importantly, no other employee was

ignoring Morse’s instructions calculated to guide the school through the enrollment crisis created

by the forced location change. Pettit was the Director of Admissions. Morse anticipated lower

enrollment and extra expenses for the school in the upcoming year and thereafter. It was not

illegitimate for Defendants to seek to obtain contractually that which they had been requesting for

some time: Pettit’s sole focus on admissions and cessation of expending school resources and time

outside that needed focus. Pettit has not presented evidence showing these actions were pretext for

retaliation. Therefore, even assuming Pettit has proven disparate treatment, as we did at the prima

facie stage, she has failed to rebut Defendants’ legitimate reasons for changing the terms of her

contract.

III.   Conclusion

       Defendants proffered legitimate reasons for their actions as to Pettit. Pettit has failed to

identify evidence from which a reasonable jury could conclude that the legitimate reasons given by

the Defendants were actually a pretext for unlawful discrimination. She has failed to present

probative evidence indicating the necessity of a trial for resolving a material factual dispute.

Therefore, the district court’s grant of summary judgment to the Defendants is AFFIRMED.




                                                -24-
