                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0300n.06

                                           No. 19-5499


                          UNITED STATES COURTS OF APPEALS
                               FOR THE SIXTH CIRCUIT

 THOMILA GALE NETHERY,                                   )                           FILED
                                                         )                     May 28, 2020
         Plaintiff-Appellant,                            )                 DEBORAH S. HUNT, Clerk
                                                         )
 v.                                                      )
                                                                ON APPEAL FROM THE
                                                         )
                                                                UNITED STATES DISTRICT
 QUALITY CARE INVESTORS, L.P., dba Quality               )
                                                                COURT FOR THE EASTERN
 Center for Rehabilitation and Healing, fka Quality      )
                                                                DISTRICT OF TENNESSEE
 Care Nursing Home,                                      )
                                                         )
         Defendant-Appellee.                             )


BEFORE: BATCHELDER, WHITE, and THAPAR, Circuit Judges.

        PER CURIAM. Plaintiff-Appellant Thomila Nethery worked as a physical-therapist

assistant at a nursing home operated by Defendant-Appellee Quality Care Investors, L.P. (Quality

Care) in Lebanon, Tennessee, known as the Quality Care Health Center (the Lebanon Facility).

Nethery was hired by Reliant Management Group, LLC (Reliant), which contracted with the

owners of facilities throughout the country, including Quality Care, to provide various services to

their patients.

        Nethery reported that she was sexually harassed by her on-site supervisor, Patrick Grubbs,

a Reliant employee. Reliant investigated these complaints and ultimately fired Grubbs. Shortly

thereafter, Samantha Mullins, Quality Care’s administrator for the Lebanon Facility, complained

to Reliant that Nethery was not a good fit at its workplace. Following the course of performance

between Reliant and Quality Care, Reliant removed Nethery from the Lebanon Facility.
No. 19-5499,Nethery v. Quality Care


       Nethery brought this action against Quality Care for unlawful retaliation under Title VII of

the Civil Rights Act of 1964. Nethery alleges that Mullins, upset over the termination of Grubbs,

demanded that Reliant remove Nethery. The parties dispute the specifics of these events and the

nature of Nethery’s relationship with Quality Care.

       The district court granted summary judgment for Quality Care, concluding that Nethery

could not bring a Title VII claim against Quality Care because (1) Quality Care was not Nethery’s

“joint employer for purposes of Title VII,” R. 99, PID 2292, and (2) Quality Care “did not have

control over [Nethery’s] access to employment opportunities with Reliant or any other third party,”

id. at 2294. Nethery appeals.

       Because Nethery did not provide sufficient evidence to establish that Quality Care acted as

her joint employer or significantly interfered with her access to employment opportunities, we

AFFIRM.

                                                 I.

       In 2010, Quality Care contracted with Reliant to provide services to its residents at the

Lebanon Facility, including physical therapy. The agreement between Quality Care and Reliant

states that it is “a contract between independent parties and shall not be construed to create any

relationship other than that of independent contractors.” R. 46-5, PID 617. The contract also states

that Quality Care would “retain administrative and professional responsibility for control over and

supervision of the provision of Services rendered to patients in all respects, as required by state

and federal laws” and that Quality Care would provide Reliant with access to Quality Care’s

“notices, policies, and procedures, including updates thereto provided from time to time by

[Quality Care], and [Reliant] shall comply with all such notices, policies, and procedures.” Id. at

608, 614.



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No. 19-5499,Nethery v. Quality Care


       In 2011, Reliant interviewed and hired Plaintiff Thomila Nethery to be a licensed physical-

therapist assistant at the Lebanon Facility.

                                                A.

       The parties dispute the degree of control Quality Care had over Reliant personnel. The

parties do not dispute, however, that while Nethery worked at the Lebanon Facility, Reliant set her

rate of pay, paid her wages, and provided her with fringe benefits. Nethery’s paychecks identified

Reliant as the entity paying her. Nethery received sick leave and paid time off from Reliant.

Nethery’s W-2 forms identified Reliant as her employer. Nethery participated in Reliant’s group-

health-insurance and 401(k) plans. Quality Care did not provide Nethery with any wages or fringe

benefits or issue her any paychecks or W-2 forms.

       Nethery reported to and was supervised by Grubbs, Reliant’s onsite director of

rehabilitation. Grubbs set Nethery’s work schedule and Nethery was required to contact Grubbs

if she needed to make changes to her schedule or call in sick. Grubbs testified that he set the

patients’ therapy schedules, and that Reliant therapists had to clock in and out on Reliant’s

computers. Grubbs reported to and was supervised by one of Reliant’s regional directors.

       Grubbs testified that he conducted annual evaluations of the Reliant therapists that did not

include input from Quality Care and that he was never asked by Quality Care to discipline an

employee. Similarly, Nethery testified that no one from Quality Care made sure she met her goals

and that Reliant would talk to her about any performance concerns. Peggy Gourgues, Reliant’s

Chief Operating Officer, testified that Reliant had “the sole authority to . . . train [Reliant

therapists]; set their work schedule; supervise them; . . . conduct their performance reviews;

discipline them; [and] terminate their employment.” R. 53-1, PID 900–01.




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No. 19-5499,Nethery v. Quality Care


       Grubbs testified that he and the Reliant therapists attended Quality Care safety meetings

that covered topics such as fire response and evacuation preparedness, and Reliant therapists used

a “fall packet” if a patient was dropped or fell, which was provided by Quality Care and completed

jointly by Reliant therapists and Quality Care nurses, R. 57-1, PID 1335–36. Grubbs recalled that

at one morning meeting, Quality Care’s director of nursing, Tamera Gulley, instructed Grubbs that

when patients hit their call buttons, Reliant therapists should answer the call lights. Nethery

testified that a Quality Care nurse assistant made a written complaint against her for failing to

respond to a call light. Mullins testified this was not a “requirement per se” but was a matter of

customer service and patient care. R. 46-2, PID 535.

       Mullins testified there were quarterly meetings organized by Quality Care that were

attended by Reliant personnel. Mullins denied that Quality Care told Reliant staff that they were

required to attend these meetings but explained that Reliant and Quality Care did have to go over

shared expectations and goals. Roderick Wolfe, Mullins’s predecessor as administrator of the

Lebanon Facility, testified that these meetings were not mandatory for Reliant employees.

                                                B.

       In March of 2016, Nethery fell and suffered a knee injury at work. Grubbs testified that

Nethery came to him to notify him of the fall. After Grubbs failed to reach his supervisor, he

called Reliant’s corporate office. Grubbs was instructed by a Reliant employee (he could not recall

the individual’s name) to get a drug-test kit and an accompanying form from Quality Care. Grubbs

obtained the drug-test kit from Quality Care and administered it to Nethery. Quality Care’s

response to the Equal Employment Opportunity Commission regarding Nethery’s charge of

discrimination stated that “Quality Care required [Nethery] to take a drug test because she was

involved in a workplace accident.” R. 50-1, PID 705. Mullins, however, testified that Quality



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No. 19-5499,Nethery v. Quality Care


Care did not have a drug-screen policy for contract employees. Grubbs stated that he was later

informed by his manager that the drug test was unnecessary.

       Nethery testified that, “a couple of years” prior to this incident, Quality Care’s nurse

educator advised her that drug tests were part of Quality Care’s protocol when responding to

injuries on the job, R. 54-1, PID 984-85, and that after she tripped and hurt her knee, Grubbs

“called administration at Quality to ask what to do.” R. 54-1, PID 974. According to Nethery,

Quality Care’s nurse educator instructed Grubbs to have Nethery complete a complaint form and

a urine test. As Nethery was heading to the bathroom, Grubbs told her, “I’m going to sniff it. I’m

going to play it in [sic]. I’m going to splash it in my face. I love golden showers.” Id. at 974–75.

                                                C.

       Nethery testified that on one occasion, Grubbs “bent down and . . . acted like he was going

to kiss [her] on the butt.” R. 54-1, PID 968. On another occasion Grubbs made sexually suggestive

comments to her and used a licorice stick to mimic oral sex. Nethery further testified that Grubbs

made sexual comments to Nethery and other therapists daily, and that on several occasions, Grubbs

called Nethery and other therapists “witch” or “b----,” id. at 971–72.

       Ann Vondran, another Reliant therapist, recalled a meeting in which Mullins explained that

if any of the staff had concerns, they should see Mullins about them. Following these instructions,

Vondran did go to Mullins to make her aware that Grubbs was making inappropriate comments.

       In April 2016, several Reliant employees, including Nethery, complained to Reliant that

Grubbs had engaged in inappropriate behavior. Reliant directed the Reliant physical therapists not

to discuss the sexual harassment allegations against Grubbs with Quality Care. As a result of the

complaints, Reliant removed Grubbs from the Lebanon Facility while members of Reliant’s human

resources department investigated the complaints. Reliant then fired Grubbs later that month.



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No. 19-5499,Nethery v. Quality Care


          Nethery testified that the day after Reliant removed Grubbs, Mullins approached her to

investigate the situation. According to Nethery, Mullins stated, “I’m letting you know that anyone

that I think isn’t a good fit for Quality, I can remove. And I want to know what happened.” R.

54-1, PID 1033–34. Reliant therapist Marilyn Franklin testified that Mullins also approached her

and told her that she had to answer all of Mullins’s questions because Mullins “could hire or fire

anybody she wanted.” R. 55-1, PID 1158.

          Mullins testified that upon learning of Reliant’s investigation of Grubbs, she began her

own investigation. As part of this investigation, she spoke to Reliant therapists but did not recall

many specifics of these conversations. Mullins denied saying that she had the right to remove

anyone from the facility, and denied telling staff that they had to answer her questions.

                                                 D.

          During Reliant’s investigation of Grubbs and after Grubbs was removed from the Lebanon

Facility, Gourgues, Reliant’s Chief Operating Officer, was in direct contact with Mullins.

According to Gourgues, Mullins was upset that Reliant had removed Grubbs from the Lebanon

Facility because Mullins felt he “was a very good director of rehab” and that “he was a very good

fit for her building.” R. 53-1, PID 866. Gourgues testified that Mullins compared Grubbs to Todd

Chrisley from the television program Chrisley Knows Best because he was “a very charismatic

character that makes little comments that she described as some might perceive as rude or crude.”

Id. at 868.

          Gourgues stated that during this same conversation or shortly thereafter, Mullins “stated

that [Nethery] was not a team player . . . as she suspected she had filed a reckless grievance.” Id.

at 904.       Gourgues testified that Mullins believed that Nethery and fellow therapists were

“conspiring against Mr. Grubbs,” id. at 867, and the allegations against Grubbs were false.



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No. 19-5499,Nethery v. Quality Care


According to Gourgues, Mullins requested that Nethery “not practice in” the Lebanon Facility

because Nethery was not a “team player” and “not a good fit.” Id. at 871.

        Mullins gave a different account of these conversations. When asked if she requested that

Reliant remove Nethery from the Lebanon Facility, Mullins responded, “I said that I’m not for

sure that she’s a good fit. I’m not for sure she’s what our patients need for healing and getting

well, encouragement.” R. 51-1, PID 785. When asked if she made any effort with Reliant to help

Grubbs keep his job, Mullins responded:

        I’m sure I emphasized how much progress that we had made in, you know,
        continuity and, you know, the improvements that we had made in the therapy
        department and the—well, within the entire building, the continuity and the ability
        to work together.

Id. at 809.

        The record indicates that Quality Care had a practice of advising Reliant if a Reliant staff

person was not a good fit for the Lebanon Facility. It is undisputed that Mullins advised Reliant

that Nethery was not a team player and not a good fit for the nursing home.1 Gourgues summarized

Reliant’s response upon receiving these kinds of complaints about Reliant staff:

        There have been numerous occasions over the years in which a client, including but
        not limited to Quality Care, has informed me that a particular therapist or other
        Reliant Rehabilitation employee is not a good fit with the client; and we have
        removed the employee in question from the facility -- from the client’s facility as a
        courtesy to them.

R. 53-1, PID 905.

        On April 28th, 2016, Nethery had a conference call with members of Reliant’s national

staff, including Gourgues and Jerrod Landress, Reliant’s regional manager. According to Nethery,


        1
          In Quality Care’s Response to Plaintiff’s Statement of Additional Material Facts Pursuant to L.R. 56.01(c),
Quality Care did not dispute that Mullins stated she wanted Nethery “removed” from the Lebanon Facility. R. 96,
PID 2273. In Quality Care’s brief to this court, however, it asserts that “Ms. Gougues [sic] interpreted Ms. Mullins’
comments to mean that Reliant should remove Nethery . . . from the Lebanon Facility.” Appellee’s Br. at 13 (emphasis
added).

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No. 19-5499,Nethery v. Quality Care


Landress told her that she would need to be removed from the Lebanon Facility for Reliant to keep

its contract with Quality Care. When Nethery asked if she could relocate to a nearby facility, she

was told that she could not because they were Quality Care’s sister companies, and that the only

options for relocation were out of state. Nethery declined the transfer and Reliant terminated her

employment. Nethery later received a severance package and a letter of recommendation from

Reliant that gave her “the highest recommendation of performing [her] duties.” R. 54-1, PID 1047.

                                               II.

       This court reviews a grant of summary judgment de novo. Hostettler v. Coll. of Wooster,

895 F.3d 844, 852 (6th Cir. 2018). Summary judgment is appropriate “if the movant 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). A genuine dispute of material fact exists if a reasonable

jury could decide for the nonmovant. Hostettler, 895 F.3d at 852. We view the facts in the light

most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.

McClellan v. Midwest Machining, Inc., 900 F.3d 297, 302 (6th Cir. 2018). The key inquiry for

this court is “whether the evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986); Rocheleau v. Elder Living Constr., LLC, 814

F.3d 398, 400 (6th Cir. 2016).

                                               III.

       To establish her claim under Title VII, Nethery must show that Quality Care was her

“employer” within the meaning of the statute. See Swallows v. Barnes & Noble Book Stores, Inc.,

128 F.3d 990, 992 (6th Cir. 1997). Nethery argues that she satisfied this requirement under two




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No. 19-5499,Nethery v. Quality Care


theories: (1) Quality Care qualified as Nethery’s joint employer, and (2) Quality Care controlled

access to Nethery’s employment opportunities. We address each argument in turn.

                                                 A.

       Under the “joint-employer” theory, “an entity that is not the plaintiff’s formal employer

may be treated under these doctrines as if it were the employer for purposes of employment laws

such as Title VII.” Sanford v. Main St. Baptist Church Manor, Inc., 449 F. App’x 488, 491 (6th

Cir. 2011). Entities are joint employers if they “share or co-determine those matters governing

essential terms and conditions of employment.” E.E.O.C. v. Skanska USA Bldg., Inc., 550 F.

App’x 253, 256 (6th Cir. 2013) (quoting Carrier Corp. v. NLRB, 768 F.2d 778, 781 (6th Cir.

1985)); see also Sanford, 449 F. App’x at 492. In determining whether an entity is the plaintiff’s

joint employer, the major factors include the “entity’s ability to hire, fire or discipline employees,

affect their compensation and benefits, and direct and supervise their performance.” Skanska, 550

F.3d at 256.

       The parties agree that Reliant alone set Nethery’s rate of pay, paid her wages, provided her

with fringe benefits, and provided her with sick leave and paid time off. The parties also agree

that Nethery’s W-2 forms identified Reliant as her employer and that Nethery was part of Reliant’s

group-health-insurance and 401(k) plans. And Nethery presented no evidence that Quality Care

had input into her compensation or benefits with Reliant.

       Nethery argues that Reliant had a practice of “removing employees at [Quality Care’s]

insistence.” Appellant’s Br. at 20. When it received a complaint from Quality Care about a Reliant

employee, Reliant’s practice was to remove the employee from the Lebanon Facility and then offer

a transfer to another facility or, should the employee decline a transfer, a severance package.




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No. 19-5499,Nethery v. Quality Care


The only evidence that Quality Care had the ability to directly fire Reliant employees is the

testimony of Nethery, and Franklin, that Mullins told them she could remove anyone she wanted.

       Nethery argues that her employment arrangement is analogous to that in Skanska. 550 F.

App’x 253. The similarities, however, are minimal. In Skanska, a machine operator, Maurice

Knox, was directly employed by a subcontractor, C-1, while working at a construction site

managed by Skanska. Id. at 254. After Knox experienced harassment at work, the Equal

Employment Opportunity Commission and Knox sued Skanska for racial discrimination and

retaliation in violation of Title VII. Id. at 253. The district court granted summary judgment to

Skanska, rejecting the argument that Skanska and C-1 acted as his joint employers. Id. The Sixth

Circuit reversed, finding the record sufficient to support a determination that Skanska jointly

employed Knox. Id. at 256. Unlike Quality Care in the present case, “Skanska routinely exercised

its ability to direct and supervise the operators’ performance[,]” including by “set[ting] the

operators’ hours and daily assignments” and “assign[ing] the operators’ supervisors.” Id. This

court concluded “that C–1 was a nonentity on the construction site.” Id. Here, Reliant provided

computers for Nethery to clock in and out, and provided an on-site supervisor who set Nethery’s

schedule, approved her time-off requests, supervised her performance, and conducted her annual

evaluations. When Mullins attempted to investigate the firing of Grubbs, Reliant instructed its

employees not to discuss the issue with Quality Care. Even viewing the facts in favor of Nethery,

this record establishes that Reliant retained near complete control over Nethery’s employment and

was not a nonentity at the Lebanon Facility.

       Based on the foregoing, we conclude that Nethery has not provided sufficient evidence that

Quality Care was her joint employer to overcome summary judgment. See Skanska, 550 F. App’x

at 256; Sanford, 449 F. App’x at 492.



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No. 19-5499,Nethery v. Quality Care


                                                        B.

        In addition to her joint-employer theory, Nethery argues that Quality Care is liable under

Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir. 1991), because it interfered with

her employment opportunities. Appellant’s Br. at 13. That argument falls short for a few reasons.

        In Christopher, this court held that a non-employer may be held liable under Title VII if it

significantly affects an individual’s access to employment opportunities with third parties. That

case involved a plaintiff who worked in a hospital as a nurse. Christopher, 936 F.3d at 871–72.

She had been hired by a third party (a group of physicians) to help them as they performed

surgeries. Id. at 872–73. After a while, the hospital denied her practicing privileges so she couldn’t

work as a nurse in that facility. Id. at 873. But that completely prevented her from working for

the physicians.      In those circumstances, the court reasoned, denying Christopher’s hospital

privileges effectively denied her employment. Id. at 875. Because the hospital significantly

affected her ability to perform her job, the court allowed a Title VII claim to proceed.

        This case is materially different. Unlike in Christopher, as the district court explained,

Quality Care does not stand as an intermediary between the plaintiff and a third party. Quality Care

is one of Reliant’s clients—they are a consumer of the services that Reliant offers. Although

Quality Care may have affected Nethery’ ability to work at Quality Care’s Lebanon facility, it did

not prevent her from working for Reliant at other facilities. After all, Reliant did offer Nethery

employment at an out-of-state facility. What’s more, Reliant at all times held the sole power to

remove Nethery from Quality Care’s Lebanon facility.2                      So that makes this case unlike




2
 The dissent claims that “Quality Care’s actions prevented [Nethery] from working at the only facility where we know
she was hired and contracted to work.” Dissent at 5. Not so. It was Reliant who removed Nethery from the Lebanon
facility. Quality Care had no authority do so. And any influence that Quality Care did have over Reliant’s employees
was because Reliant took Quality Care’s wishes into account when exercising its own power.

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No. 19-5499,Nethery v. Quality Care


Christopher, where the defendant’s conduct made it impossible for the plaintiff to work for her

employer.

       That distinction makes a difference. In Satterfield v. Tennessee, the court rejected an

interfering-with-employment-opportunities claim where (like here) the employer “at all times

retained control over [the plaintiff’s] access to his employment.” 295 F.3d 611, 618 (6th Cir.

2002). As in Satterfield, the employer here held the sole power to remove Nethery from her place

of employment. It also held the sole power to offer Nethery employment opportunities at other

facilities. Nethery’s claim thus fails for the same reason that Satterfield’s did. See Shah v.

Deaconess Hosp., 355 F.3d 496, 500 (6th Cir. 2004) (finding Christopher inapposite when the

evidence didn’t show that the defendant’s obstructive conduct “directly impair[ed] [the plaintiff’s]

employment with third parties”).

       Satterfield’s focus on the employer’s control over the employee makes good sense.

Nethery argues that Quality Care interfered with her employment at Reliant because Reliant

refused to send her to any of the other local facilities that Reliant contracted with. Reliant refused

to staff her at those facilities because they were affiliated with Quality Care—and Mullins did not

want Nethery at the Lebanon facility. But that cannot be enough to create a fact issue as to liability.

                                                 ***

       Because Nethery has not shown a genuine dispute of material fact that Quality Care was

her joint employer or interfered with her access to employment opportunities with Reliant, we

AFFIRM.




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       HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.

I concur in the majority’s discussion and disposition of Nethery’s claim that Quality Care acted as

her joint employer.     I dissent, however, from the affirmance as to Nethery’s claim under

Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir. 1991). Because Nethery has

made a sufficient showing that Quality Care significantly affected or interfered with her access to

employment opportunities with Reliant, I would reverse as to the Christopher claim and remand

for further proceedings.

       In Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973), the defendant hospital

ran a nursing office to coordinate placement of private nurses for patients upon their request. The

plaintiff, a male private nurse, claimed that the hospital had refused to refer him to female patients.

Id at 1339–40. The court acknowledged that the parties “did not contemplate any immediate or

future relationship of direct employment in the sense of the usual indicia of such employment,”

but held that the hospital could be liable under Title VII because it had “not a remote but a highly

visible nexus with the creation and continuance of direct employment relationships between third

parties.” Id. at 1342. The court reasoned that “[t]o permit a covered employer to exploit

circumstances peculiarly affording it the capability of discriminatorily interfering with an

individual’s employment opportunities with another employer . . . would be to condone continued

use of the very criteria for employment that Congress has prohibited.” Id. at 1341.

       The D.C. Circuit extended Sibley in Shehadeh v. Chesapeake & Potomac Tel. Co. of

Maryland, 595 F.2d 711 (D.C. Cir. 1978). Shehadeh was fired from C&P during her pregnancy.

Id. at 715. She then applied unsuccessfully for jobs with other companies. Id. Shehadeh alleged

that C&P, motivated by discriminatory animus, sent negative references to her prospective

employers. Id. at 719. Shehadeh argued that “[u]ntrue and damaging accounts of her employment



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No. 19-5499,Nethery v. Quality Care


qualifications were purposefully circulated in consequence of her gender or her husband’s

ancestry.” Id. at 719–20. The court reasoned that this type of interference with employment

opportunities is potentially more pernicious than the facts considered in Sibley:

       The considerations articulated in Sibley Hospital apply with equal force to
       discriminatorily-motivated propagation of adverse references. A former employer
       is solidly in position to impede a prior employee’s reentry into the job market.
       When that influence is exerted to limit employment opportunities on grounds of
       “race, color, religion, sex, or national origin,” an evil at which Section 703(a)(1) is
       unequivocally aimed materializes. To be sure, Sibley Hospital’s control of its
       premises and its status as an intermediary enabled it to bar the complaining nurse
       from access to requesting patients. That distinction, however, would scarcely
       comfort a discharged employee unable to secure work because of discriminatory
       references by the former employer.

Id. at 722. The court concluded that “[p]roof of [Shehadeh’s] claim plainly would establish a

severe constriction of job-market access through distinctions outlawed by Title VII.” Id. at 723.

       Similarly, in the present case, Nethery has presented evidence that Quality Care, in

retaliation against Nethery for reporting sexual harassment, demanded that Nethery be removed

from the Lebanon Facility, interfering with Nethery’s employment with Reliant and constricting

her job-market access.

       Other circuits have followed this approach. In Gomez v. Alexian Bros. Hosp. of San Jose,

698 F.2d 1019 (9th Cir. 1983), Gomez, on behalf of the professional corporation AES, submitted

a contract proposal to manage a hospital emergency room. Gomez alleged that the contract

proposal to the hospital was rejected because of his Mexican ancestry. Id. at 1020. The district

court concluded that Gomez lacked standing because “under the proposed contract AES would

have been an independent contractor and plaintiff would have been an employee of AES and not

of the hospital.” Id. The Ninth Circuit reversed, noting that Gomez’s continued employment with

AES did not prevent a Title VII claim:




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No. 19-5499,Nethery v. Quality Care


       Plaintiff alleges defendants' discrimination against him based on his national origin
       denied him the opportunity to be employed by AES as director of defendants’
       emergency room. The fact that plaintiff continues as an employee of AES does not
       mean the employment relationship between AES and plaintiff has not been
       interfered with. The conditions of plaintiff’s employment are different than they
       would have been had he not been discriminated against.

Id. at 1021.

       The Sixth Circuit has adopted this line of cases. In Christopher, this court, relying on the

D.C. Circuit’s decision in Sibley as well as the Ninth Circuit’s decision in Gomez, held that a non-

employer may be liable under Title VII if it significantly affects an individual’s access to

employment opportunities. 936 F.2d at 875. Christopher, a scrub nurse employed privately by

doctors, brought a Title VII retaliation claim against Stouder, a hospital that denied her nursing

privileges. Id. at 873. This court found that although Christopher was neither an employee nor an

independent contractor of the defendant hospital, there was ample evidence that the hospital “was

an organization which was capable of and in fact did affect Christopher’s ability to engage in her

employment as a scrub nurse.” Id. at 876. By discriminating against Christopher and denying her

privileges to work at its facility, the hospital prevented her from performing the job for which she

was hired and interfered with her employment relationship. Id. This court therefore concluded

that Christopher stated a claim under Title VII. Id. at 877.

       Similarly, Quality Care’s request, direct or implied, that Nethery be removed from the

Lebanon Facility prevented Nethery from performing the job for which she was hired. Quality

Care used its relationship with Reliant to interfere with Nethery’s employment.

       This court distinguished Christopher in Satterfield v. Tennessee, 295 F.3d 611 (6th Cir.

2002), on which the majority relies. In Satterfield, the Tennessee Public Service Commission

discharged Satterfield from his employment after Bluhm, a physician in private practice at

Occupatient, determined from a physical examination that Satterfield was not qualified for the

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No. 19-5499,Nethery v. Quality Care


position. Id. at 613. Satterfield sued Bluhm and Occupatient, alleging violations of his rights

under the ADA and the Rehabilitation Act, among other claims. Id. at 614. The district court

“granted summary judgment to the defendants on Satterfield’s federal ADA and Rehabilitation

Act claims on the ground that Bluhm and Occupatient were not ‘covered entities’ for the purposes

of the ADA or the Rehabilitation Act.” Id. at 615. This court noted that Satterfield’s claim was

“arguably most compelling” under the Christopher “significantly affects access” theory. Id. at

618. In distinguishing Christopher, this court wrote that “[e]ven though the Department had a

policy of relying on the results of physical examinations performed by Bluhm or other doctors at

Occupatient, the Department itself actually controlled Satterfield’s access to his employment at all

times.” Id. This court affirmed summary judgment, concluding that the proper defendant for

Satterfield’s claim was the state agency that followed Bluhm’s advice. Id. at 619.

       The relationship between Nethery and Quality Care was far more substantial than the

relationship between Satterfield and Occupatient. While Nethery worked at Quality Care’s

facility, caring for Quality Care’s patients alongside Quality Care employees, Satterfield

underwent a single examination by Occupatient to determine his physical qualifications for his

job. Further, there is no indication in Satterfield that Occupatient had any stake in whether the

state agency followed its recommendation. Here, in contrast, Quality Care made the complaint

about Nethery in the context of an ongoing business relationship with Reliant. And Quality Care

did not simply make a recommendation. Nethery testified that a Reliant regional manager said

that she had to be removed from the Lebanon Facility for Reliant to keep its contract with Quality

Care. The majority asserts that “Reliant at all times held the sole power to remove Nethery from

Quality Care’s Lebanon facility” and that “Quality Care had no authority do so.” Maj. Op. at 11.

This is accurate in the sense that Reliant was Nethery’s legal employer. However, the testimony



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and course of performance between the companies support a different conclusion. Drawing all

reasonable inferences in Nethery’s favor, Reliant ceded ultimate assigning authority to Quality

Care, allowing the latter to direct the removal of Reliant personnel from Quality Care facilities.

Viewing the evidence in the light most favorable to Nethery, Reliant was compelled to remove

Nethery from the Lebanon Facility solely in response to Mullins’s complaint. Thus, the majority’s

analogy to Satterfield is inapt.

       This court again distinguished Christopher in Shah v. Deaconess Hosp., 355 F.3d 496 (6th

Cir. 2004). Shah was a general surgeon with surgical privileges at Deaconess Hospital. Id. at 497.

Deaconess revoked part of Shah’s surgical privileges after one of his patients died. Id. Shah

claimed that Deaconess discriminated against him based on his age and national origin. Id. Among

other considerations, the court noted that Shah performed about forty-five percent of his surgeries

outside of Deaconess, treated his own patients, and contracted freely with other hospitals. Id. at

500. Distinguishing Christopher, this court found nothing in the record to suggest that Shah’s

partial loss of surgical privileges at Deaconess directly impaired his employment with third parties.

Id.

       Unlike Shah, the evidence here does suggest that Quality Care’s actions directly impaired

Nethery’s employment with Reliant. Where Shah performed forty-five percent of his surgeries

outside Deaconess, treated his own patients, and freely contracted with other hospitals, there is no

evidence here that Nethery worked outside the Lebanon Facility or had any patients other than

those provided by Quality Care.

       Quality Care argues that Nethery’s employment was terminated not because she reported

Grubbs but because she turned down Reliant’s transfer offer. Quality Care Br. at 15. Similarly,

the majority asserts that even if Quality Care “affected Nethery’s ability to work at Quality Care’s



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Lebanon facility, it did not prevent her from working for Reliant at other facilities” and “[a]fter

all, Reliant did offer Nethery employment at an out-of-state facility.” Maj. Op. at 11. There are

several problems with this analysis. First, the record contains no evidence that Nethery was hired

or contracted by Reliant to work anywhere other than the Lebanon Facility. Viewing the facts and

drawing all reasonable inferences in favor of Nethery, Quality Care’s actions prevented her from

working at the only facility where we know she was hired and contracted to work. Second, the

record reveals little about Reliant’s out-of-state offer, which may have involved a completely new

contract, possibly with a different entity, and the termination of her old employment. Finally, we

do not know whether the offer would have involved a demotion, reduced hours, reduced pay, or

other forms of adverse action. Even if these conditions remained the same, this would “not mean

the employment relationship between [Reliant] and [Nethery] ha[d] not been interfered with.”

Gomez, 698 F.2d at 1021. As in Gomez, the conditions of Nethery’s employment would still be

“different than they would have been had [she] not been discriminated against.” Id. And, as

Nethery points out, this court has held that a jury could reasonably find that a transfer increasing

commute time to the extent the employee must relocate is an adverse employment action. Keeton

v. Flying J, Inc., 429 F.3d 259, 265 (6th Cir. 2005). Nethery made a sufficient showing that a

transfer would have involved an unworkable relocation. Thus, even under the majority’s analysis,

Quality Care was responsible for an adverse employment action against Nethery.

       Viewing the facts and drawing all reasonable inferences in favor of Nethery, if Mullins had

never complained to Reliant regarding Nethery’s “fit,” Nethery would have continued to work at

the Lebanon Facility. Nethery had worked there for over four years prior to her termination. The

only other complaint in the record regarding her performance was that she stared blankly at Mullins

when asked a question about equipment. Grubbs testified that Nethery was a good therapist and



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Nethery received a letter of recommendation from Reliant giving her “the highest recommendation

of performing [her] duties.” R. 54-1, PID 1047.

       In sum, the record supports an inference that Quality Care had the ability to remove Reliant

employees from the Lebanon Facility and compel them to make a choice between a transfer to a

new facility or separation from Reliant. The record also supports an inference that Mullins had

Nethery removed from the Lebanon Facility because she was upset over Nethery’s allegations

against Grubbs. Thus, Quality Care “was an organization which was capable of and in fact did

affect [Nethery’s] ability to engage in her employment.” Christopher, 936 F.2d at 876. Quality

Care’s acts had “the effect of denying [Nethery] employment based upon impermissible grounds

under” Title VII. Id. at 876–77. I would therefore affirm in part, reverse in part, and remand for

further proceedings consistent with this opinion.




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