                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0501n.06

                                            No. 12-5931

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                                   FILED
TANYA MCKINNIE COBB,                                      )                    May 20, 2013
                                                          )              DEBORAH S. HUNT, Clerk
          Plaintiff-Appellant,                            )
                                                          )
v.                                                        )   On Appeal from the United States
                                                          )   District Court for the Western
KEYSTONE MEMPHIS, LLC,                                    )   District of Tennessee
d/b/a Compass Intervention Center,                        )
                                                          )               OPINION
          Defendant-Appellee.




Before:          BOGGS and COLE, Circuit Judges; and QUIST, District Judge.*

                 Boggs, Circuit Judge. Plaintiff-appellant Tanya Cobb appeals a district-court order

granting summary judgment on her Tennessee common-law retaliatory-discharge claim in favor of

defendant-appellee Keystone Memphis, LLC d/b/a Compass Intervention Center. For the reasons

that follow, we affirm the district court’s order.

                                                     I

          Keystone Memphis, LLC operates the Compass Intervention Center (Compass), a residential

treatment facility for at-risk children who suffer from mental, behavioral, and emotional disorders.

Cobb is an African-American female who began working at Compass in 2004 as a Community

Counselor. Cobb was directly supervised by two Community Counselor Coordinators, St. Paul

          *
       The Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
No. 12-5931
Cobb v. Keystone Memphis, LLC

Bourgeois and Sherman Golden. Bourgeois and Golden reported to Jill Clarke, the Director of

Nursing, and Clarke reported to Kevin Patton, Compass’s CEO. In her role as a Community

Counselor, Cobb was responsible for supervising the children assigned to her and was required, inter

alia, to check on these children every fifteen minutes and document the observations she made

during these checks on resident-observation forms. Compass has a clear policy that falsifying

resident-observation forms is a ground for termination.

       Cobb and another Community Counselor, Lakesha Bishop, were assigned to an overnight

shift on September 13-14, 2009. Around 6 a.m. on the morning of September 14, Cobb entered the

room of two boys to find them with their genitalia exposed. Bishop brought the two boys to the

nurse in charge, Tracey Willis, and reported the incident. The matter was then referred to Director

of Risk Management Julia Lowery who conducted an investigation of the incident and, having

determined that it was an instance of sexual acting out rather than one of sexual abuse, did not file

a report with the Department of Child Services (DCS). During the investigation, Lowery reviewed

surveillance tapes, which led her to discover that Cobb and Bishop had failed to perform all of the

required fifteen-minute checks on the children under their care. Cobb contests neither that she and

Bishop failed to perform all of their required fifteen-minute checks nor that they then falsified

resident-observation forms to suggest that they had indeed conducted the requisite checks.

       Lowery reported Bishop’s and Cobb’s actions to Director of Nursing Jill Clarke, and Clarke

reviewed the surveillance footage and discussed the infractions with Compass’s CEO, Kevin Patton.

Compass maintains that Clarke and Patton then made the decision to terminate both Bishop and

Cobb on or around September 23, 2009. Compass also asserts that while the decision to fire Cobb

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Cobb v. Keystone Memphis, LLC

was made contemporaneously with the decision to fire Bishop, Bishop was notified first, on

September 29, 2009, because she was the only one of the two available at that time. Cobb, on the

other hand, had fallen ill and had not returned to work since the September 14 incident. Pursuant

to a doctor’s note, she was excused from returning to work until October 6, 2009. Michelle

Makepeace-Williams, Director of Compass’s Human Resources Department, was asked to review

the decision to fire Cobb from a human resources perspective, and she advised Patton that she did

not feel comfortable calling Cobb to set up a termination meeting until October 7, 2009, the day after

Cobb’s doctor’s note had expired.

       On October 6, however, Bourgeois called Cobb. Bourgeois maintains that he called to set

up a meeting between Cobb and her supervisors to discuss her misconduct. He asserts that during

this call Cobb brought up Bishop’s termination and that Cobb stonewalled him and did not want to

meet in person because she knew she was going to be fired. Cobb, on the other hand, claims that

Bourgeois called her to ask her to report for work on October 9, 2009. She also claims that once she

told Bourgeois that she was planning on reporting the September 14 incident between the two boys

to DCS, Bourgeois informed her that she was fired and that she should not come in. Cobb admits,

however, that Bourgeois did not have the authority to fire her. See Appellant Br. at 15, 28.

       Cobb called DCS on October 7, 2009, and reported the September 14 incident. Later that

same day, Makepeace-Williams called Cobb as planned to set up a termination meeting. Cobb told

Makepeace-Williams that due to another full-time job she held and her son’s schedule, she could not

meet with her before October 14, 2009. In addition, Cobb claims that during this conversation, she

told Makepeace-Williams about her filing a report with DCS. According to Cobb, it was only after

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Cobb v. Keystone Memphis, LLC

she refused to tell Makepeace-Williams about the details of the report that Makepeace-Williams

refused to let her return to work on October 9 and instead forced her to attend the meeting on

October 14. On October 14, 2009, Cobb met with Makepeace-Williams, Clarke, and Bourgeois and

was told that she was being fired for failing to perform her 15-minute checks and for falsifying

documents.

       After timely filing a charge with the Equal Employment Opportunity Commission and

receiving a right-to-sue letter, Cobb filed a complaint in the United States District Court for the

Western District of Tennessee, alleging, inter alia, common-law retaliatory discharge in connection

with her filing a report with DCS.1 Compass moved for summary judgment, and the district court

granted its motion. The district court first held that, in federal court, the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applied when evaluating a Tennessee

common-law retaliatory-discharge claim at the summary-judgment stage. Using this framework, the

district court then held that Cobb could not establish the final element of a prima facie case of

common-law retaliatory discharge—that her report to DCS played a substantial role in Compass’s

decision to fire her—because the relevant decision-makers were not aware of Cobb’s report at the

time that they decided to terminate her. Specifically, it held that the decision to terminate Cobb was

made by Clarke and Patton in mid- to late September, well before she filed a report with DCS.


       1
        While Cobb alleged a number of other grounds for relief, the instant appeal concerns only
her common-law retaliatory-discharge claim. See Appellant Br. at 6, 17. Cobb’s original retaliatory-
discharge claim before the district court involved both a claim that she was fired for filing a report
with DCS and also that earlier, in March 2009, she was temporarily removed from the work schedule
for complaining about several of Compass’s workplace practices. Cobb only presses the first of
these two claims on direct appeal. See id. at 6, 17–18.

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Cobb v. Keystone Memphis, LLC

Accordingly, the district court granted summary judgment for Compass on that claim. Cobb now

appeals.

                                                    II

        As the Tennessee Supreme Court has explained:

        By [state] statute, an employer cannot discharge employees because of their race,
        religion, sex, age, physical condition or mental condition, because they report work
        place safety violations, because they miss work to perform jury duty, or because they
        refuse to participate in or be silent about illegal activity at the work place. In addition
        to the protection afforded by [state] statutes, the Court in Chism v. Mid–South Milling
        Co., Inc. suggested several examples of clearly defined public policies which could
        warrant the protection provided by an action for retaliatory discharge.

Anderson v. Standard Register Co., 857 S.W.2d 555, 556 (Tenn. 1993) (internal citations omitted),

overruled on other grounds as recognized by Perkins v. Metro. Gov’t of Nashville, 380 S.W.3d 73,

79 n.8 (Tenn. 2012). Accordingly, Tennessee courts have recognized a common-law claim of

retaliatory discharge for employees who are retaliated against for reporting a “clear violation of some

well-defined and established public policy.” Chism v. Mid-S. Milling Co., Inc., 762 S.W.2d 552, 556

(Tenn. 1988).

        To establish a prima facie case of common-law retaliatory discharge, an employee must

show: “(1) that an employment-at-will relationship existed; (2) that the employee was discharged,

(3) that the reason for the discharge was that the employee attempted to exercise a statutory or

constitutional right, or for any other reason which violates a clear public policy evidenced by an

unambiguous constitutional, statutory, or regulatory provision; and (4) that a substantial factor in the

employer’s decision to discharge the employee was the employee’s exercise of protected rights or

compliance with clear public policy.” Crews v. Buckman Labs. Int’l, Inc., 78 S.W.3d 852, 862

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Cobb v. Keystone Memphis, LLC

(Tenn. 2002). The Tennessee Supreme Court has held that “[p]roof of a causal link between the

employee’s exercise of a protected right or compliance with clear public policy and the employer’s

decision to discharge the employee then ‘imposes upon the employer the burden of showing a

legitimate, non-pretextual reason for the employee’s discharge.’” Gossett v. Tractor Supply Co.,

Inc., 320 S.W.3d 777, 781 (Tenn. 2010) (quoting Anderson, 857 S.W.2d at 559), superseded by

statute as recognized by Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 758 (6th Cir. 2012).

Accordingly, the Tennessee state courts have adopted the federal McDonnell Douglas framework

for analyzing common-law retaliatory-discharge claims, requiring first that a plaintiff establish a

prima facie case and then shifting to the defendant the burden of presenting a legitimate non-

retaliatory reason for terminating the plaintiff-employee.

       In Gossett, the Tennessee Supreme Court further held that while the McDonnell Douglas

framework is applicable during the trial stage of a Tennessee common-law retaliatory-discharge

claim, it does not apply at the summary-judgment phase. Id. at 785–86. Rather, once an employee

establishes a prima facie case of retaliatory discharge, an employer, to obtain summary judgment,

must “produce evidence or refer to evidence in the record that affirmatively negates an essential

element of the nonmoving party’s claim or shows that the nonmoving party cannot prove an essential

element of the claim at trial.” Id. at 782 (internal quotation marks omitted).

       The parties in this case dispute whether federal courts, sitting in diversity, are bound to apply

the summary-judgment standard announced in Gossett rather than the standard provided by the

McDonnell Douglas framework. Ultimately, however, we need not assess Gossett’s applicability



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to federal courts, as Compass’s motion for summary judgment prevails under either the Gossett or

McDonnell Douglas framework.

                                                    III

                                                     A

        Before proceeding, it is worth mentioning what Gossett’s holding did not alter about the

summary-judgment phase for common-law retaliatory-discharge claims. Under both Gossett and

McDonnell Douglas, the plaintiff employee still must establish a prima facie case. The two

frameworks differ only as to what evidence a defendant employer must then produce in order to rebut

the prima facie case. Under McDonnell Douglas, evidence of a legitimate non-discriminatory reason

will suffice, while Gossett requires evidence that actually negates an element of the prima facie case.

        Cobb argues that “[p]ursuant to Gossett, a plaintiff requires no proof to survive summary

judgment unless the defendant moving for summary judgment first shows there is no genuine issue

as to any material fact on an essential element.” Appellant Br. at 24–25 (emphasis added).

Apparently, Cobb believes that to prevail on a motion for summary judgment under Gossett,

Compass must affirmatively negate a required element of her retaliatory-discharge claim even if she

has not pled any facts sufficient to establish a prima facie case. This is a misreading of Gossett and

an untenable view of pretrial practice and procedure. The idea that a plaintiff could survive a motion

for summary judgment without having pled any facts to support the elements of her claim is contrary

to the most basic rules of the American legal system and, more specifically, Tennessee state

procedure. See Tenn. R. Civ. P. 8.01 (“A pleading which sets forth a claim for relief . . . shall

contain [] a short and plain statement of the claim showing that the pleader is entitled to relief . . . .”);

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Cobb v. Keystone Memphis, LLC

see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers ‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” (alteration in

original) (internal citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557

(2007))).

       While it is true that Gossett contained language stating that “[a] plaintiff requires no proof

to survive summary judgment unless the defendant moving for summary judgment first shows there

is no genuine issue as to any material fact on an essential element,” Gossett, 320 S.W.3d at 785–86,

this statement clearly presumed that a plaintiff had first established a prima facie case and merely

emphasized that a plaintiff need not take any further action unless the defendant could affirmatively

negate an element of the already established prima facie case. As Gossett itself explained, to prevail

on summary judgment, the moving party “must point to evidence that tends to disprove a material

factual allegation made by the nonmoving party.” Id. at 782 (emphasis added) (internal quotation

marks omitted). Thus, the non-moving party clearly is required to present material factual

allegations at the outset to establish its prima facie case. The only change Gossett wrought was to

alter the employer’s burden once the prima facie case was established.

                                                  B

       Assessing Cobb’s claim under either Gossett or McDonnell Douglas, it is readily apparent

that her claim cannot survive Compass’s motion for summary judgment. As the district court

appropriately found, Cobb has failed to produce evidence to establish the fourth element of common-

law retaliatory discharge—that her report to DCS was a substantial factor in Compass’s decision to

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Cobb v. Keystone Memphis, LLC

discharge her. Compass maintains that Patton and Clarke made the decision to fire Cobb in mid-

to late September—at the same time as Bishop’s termination and well before Cobb made her report

to DCS. If these facts are taken as true, the decision to terminate Cobb, made long before she had

contacted DCS, could not have been causally related to her report to DCS. Accordingly, the critical

question on appeal is whether the decision to fire Cobb was made before or after the decision-makers

at Compass had learned of her report to DCS. Whether operating under the direction of Gossett or

McDonnell Douglas, Cobb initially must present evidence to support this fourth element of her prima

facie case. Viewing the evidence in the light most favorable to Cobb, she has failed to carry this

burden.

                                                 1

       Cobb relies on two alleged incidents to establish that her report to DCS was a substantial

factor in her termination: (1) her October 6 conversation with Bourgeois and his placing her on a

work chart; and (2) her October 7 conversation with Makepeace-Williams. With regard to the first

alleged incident, even accepting Cobb’s version of her conversation with Bourgeois, she has not

produced evidence to dispute the fact that the decision to fire her was made much earlier by Patton

and Clarke. Assuming, as we must, that Bourgeois’s telling Cobb that she was fired occurred only

after Cobb revealed her intention to file a report with DCS, this reaction is of no import, as Cobb

admits that Bourgeois had no authority to fire her. See Appellant Br. at 15, 28. Logically speaking,

the offhand comment of an individual who had no input into hiring and firing decisions does nothing

to inform our inquiry into when or why the actual decision-maker fired an employee. See Roberts

v. Principi, 283 F. App’x 325, 332 (6th Cir. 2008) (“[T]he discriminatory or retaliatory animus of

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Cobb v. Keystone Memphis, LLC

a coworker is not usually relevant to whether the employer [retaliated]. Rather, the relevant beliefs

or motivations are those of the actual decisionmaker . . . .”); see also Rowan v. Lockheed Martin

Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir. 2004) (holding that when an individual is not “a

decision-maker in connection with the discharges[,] . . . whatever statements he made are

irrelevant”); Geiger v. Tower Auto., 579 F.3d 614, 620–21 (6th Cir. 2009) (noting that

“discriminatory statements must come from decisionmakers to constitute evidence of

discrimination”). Even if Bourgeois did respond negatively to Cobb’s intending to file a DCS report

and wished that he himself could fire her for such an action, his personal reaction sheds no light on

whether the real decision-makers at Compass, Patton and Clarke, acted for the same reasons. Thus,

Bourgeois’s alleged statement does not establish any kind of causal connection between Cobb’s

filing of a report and Compass’s actual decision to discharge her. Furthermore, Bourgeois’s alleged

comment that Cobb was fired is perfectly consistent with Compass’s assertion that the decision to

fire Cobb had already been made by Patton and Clarke.

       Also related to Cobb’s conversation with Bourgeois is her claim that Bourgeois had placed

her on the work chart and told her to come in to work. Cobb argues that her being listed on this chart

as working on October 9 indicates that she had not been fired as of that date. We first note that even

if an employee is scheduled to work, this does not preclude the possibility that a decision has already

been made to fire that employee in the near future. Employers often continue to employ individuals,

sometimes for reasonably long periods of time, with the intention of ultimately firing them.

Accordingly, Bourgeois’s placing Cobb on the work schedule for October 9 and his alleged

statement asking her to come in to work do not indicate one way or the other whether the decision-

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Cobb v. Keystone Memphis, LLC

makers at Compass had already made the decision to fire Cobb earlier in September and well before

her report to DCS.

        In addition, it is uncontested that Bourgeois alone created the work schedule, and that, as

mentioned above, he was not involved in the decision to fire Cobb. Thus, Bourgeois’s placing Cobb

on the work schedule does not indicate that the real decision-makers within Compass had not already

made the decision to terminate Cobb, especially since Bourgeois stated in his deposition that he

created the schedule in mid-September before being notified of Patton and Clarke’s decision to fire

Cobb.

        Cobb points out that Bishop, who was also fired for failing to conduct fifteen-minute checks

during her September 13-14 shift, was not placed on the work schedule, arguing that this omission

refutes Compass’s claim that the decisions to fire Cobb and Bishop were made contemporaneously.

Yet, as Compass points out, it is uncontested that Bishop was immediately notified of her

termination, thus her removal and Cobb’s non-removal are perfectly consistent. In fact, Bishop’s

September 29 termination—for misconduct identical to Cobb’s that was jointly committed by the

two of them during the same incident—strongly suggests that Compass’s decision to discharge Cobb

was also made in mid- to late September. Cobb’s reliance on the time line of Bishop’s firing ignores

the fact that had Cobb not been out on sick leave, there is no reason to believe that she would not

have been fired at the same time as Bishop.

                                                  2

        Next, Cobb turns to her alleged conversation with Makepeace-Williams on October 7. Cobb

argues, as she did before the district court, that this conversation establishes the fourth element of

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Cobb v. Keystone Memphis, LLC

a prima facie case of retaliatory discharge.2 This argument founders for the same reason that Cobb’s

reliance on Bourgeois’s comment failed—Makepeace-Williams was not a decision-maker. Compass

has submitted evidence indicating that Patton and Clarke made the decision to terminate Cobb and

that Makepeace-Williams had no such decision-making power. Compass asserts that Makepeace-

Williams’s only involvement was to review Patton and Clarke’s decision from a human-resources

perspective and then contact Cobb to schedule a meeting. If this is indeed true, the statements that

Makepeace-Williams allegedly made to Cobb do not bear on when and why the real decision to fire

Cobb was made.

       Cobb contests Compass’s assertion that Makepeace-Williams was not a decision-maker,

making the conclusory statement that “the proof shows that Michelle-Makepeace Williams [sic] was

a decision-maker with respect to the termination of Ms. Cobb who specifically informed the [sic]

Ms. Cobb that she would not be terminated if provided information concerning her report of abuse

to the State on October 7, 2009.” Appellant Br. at 30. But Cobb points to no evidence in the record,

or anywhere else for that matter, contradicting Compass’s assertion that Makepeace-Williams had

no authority to fire Cobb. Rather, Cobb simply relies on her own speculative belief that because

Makepeace-Williams allegedly told Cobb she was fired, she must have been the one who made that




       2
         For the first time on appeal, Cobb also argues that this conversation constitutes direct
evidence of retaliatory discharge and can suffice to prove her claim without reliance on the four-
element prima-facie-case framework employed when only circumstantial evidence is available.
Having failed to present this argument before the district court, it is waived. Thurman v. Yellow
Freight Sys., Inc., 90 F.3d 1160, 1172 (6th Cir. 1996).

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Cobb v. Keystone Memphis, LLC

decision. According to Cobb, this creates a genuine dispute of material fact as to whether

Makepeace-Williams was a decision-maker.

        Cobb fundamentally misunderstands what constitutes a genuine dispute of material fact,

essentially arguing that if she contests a fact in her brief, no matter how unfounded her objection,

her claim survives summary judgment. This is not the case. See Matsushita Elec. Indus. Co., Ltd.

v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the party opposing summary judgment

must “do more than simply show that there is some metaphysical doubt as to the material facts”);

Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (“[T]he party opposing [a motion for

summary judgment] may not rely on the hope that the trier of fact will disbelieve the movant’s denial

of a disputed fact but must make an affirmative showing with proper evidence in order to defeat the

motion.” (internal quotation marks omitted)); Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932

(7th Cir. 1995) (“Speculation does not create a genuine issue of fact; instead, it creates a false issue,

the demolition of which is a primary goal of summary judgment.”). Simply speculating that

Makepeace-Williams was a decision-maker—without any further proof and in the face of Compass’s

affirmative evidence to the contrary—does not create a genuine dispute for the purposes of summary

judgment. Accordingly, Cobb cannot dispute that Makepeace-Williams was a non-decision-maker,

and Makepeace-Williams’s statement therefore cannot dispute Compass’s evidence that the true

decision to fire Cobb was made by Patton and Clarke well before Cobb filed her report with DCS.

                                                   C

        In sum, neither Cobb’s interactions with Bourgeois nor her conversation with Makepeace-

Williams establish a causal connection between her report to DCS and her termination. Cobb has

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thus failed to establish the fourth element of a prima facie case of common-law retaliatory discharge

and cannot survive summary judgment under either the Gossett or McDonnell Douglas standard.

                                                 IV

       For the foregoing reasons, we AFFIRM the order of the district court.




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