                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0708n.06
                            Filed: August 16, 2005

                                           No. 04-5762

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


IDA HEADY,                                               )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellant,                              )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF KENTUCKY
                                                         )
UNITED STATES ENRICHMENT                                 )                           OPINION
CORPORATION,                                             )
                                                         )
       Defendant-Appellee.



BEFORE:        MOORE and COLE, Circuit Judges; WISEMAN, District Judge*

       R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant, Ida Heady, brought this action

in federal district court alleging retaliation in violation of the Family Medical Leave Act (“FMLA”),

29 U.S.C. § 2601, et seq. The district court granted the Defendant-Appellee, United States

Enrichment Corporation (“USEC”), summary judgment, concluding that Heady did not show that

USEC’s proffered reasons for discharge were pretextual. On appeal, Heady argues that she

presented sufficient evidence to show that she was not discharged as part of a massive reduction-in-

workforce program, as advanced by USEC, but that she was selected for discharge based on her use

of FMLA-protected leave.




       *
       The Honorable Thomas A. Wiseman, Jr., United States District Judge for the Middle District
of Tennessee, sitting by designation.
No. 04-5762
Heady v. US Enrichment Corp.

        For the reasons that follow, we AFFIRM the district court’s grant of summary judgment to

USEC.

                                       I. BACKGROUND

        In 1989, Ida Heady accepted employment with USEC. Over the next ten years, she worked

at USEC in miscellaneous positions, including various clerical positions in the Quality Assurance

Department. In 1996, Heady took FMLA leave for her carpal tunnel syndrome. Two years later,

in 1998, Heady accepted a transfer to the Operations division of the plant as an office manager.

Heady again took FMLA leave for abdominal surgery from late 1999 to early 2000.

        Heady stated that her direct supervisor, Dale Mittendorf, mentioned her “attendance”

problems during a performance evaluation in 1999. According to Heady, Mittendorf stated that her

“attendance was down, but improving.” Heady asserts that during that time period she had absences

protected by the FMLA, as well as non-FMLA absences for the death of her mother-in-law,

influenza, and bronchitis. Heady could not recall any other absences.

        In the spring of 2000, budgetary constraints resulted in USEC instituting a broad reduction-

in-workforce plan. One-hundred and six USEC employees participated in a “voluntary workforce

reduction.” Twenty-six employees were involuntarily discharged.

        Heady was one of three office managers in the Operations division. None of the three were

willing to accept voluntary discharge. Because similar divisions in the company only had one office

manager, USEC decided to eliminate one of the three office managers. To select the office manager

whose position would be eliminated, USEC asked Mittendorf, Mittendorf’s supervisor Mike Mack,




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Heady v. US Enrichment Corp.

and Charlotte Powell, the office manager for Mack’s supervisor, to rate Heady and the other two

office managers.

        The performance ratings system used to determine which employees would be discharged

as part of the workforce reduction was different from that used in standard performance evaluations.

In the past, USEC utilized a Performance Planning and Review System for semiannual evaluations

of employees. In 1992, 1997, 1998, and 1999, Heady’s supervisor gave her an overall rating of

“effective performance.” In 1991 and 1995-1996, Heady received an overall rating of “consistently

exceeding” goals and expectations. For the workforce reduction, however, USEC hired a consultant

to implement an evaluation specifically for the purpose of determining which employees were best

suited for future employment with USEC. The consultant, Paulo Carotti, recommended and

employed the “Lominger Leadership Architect Tools” evaluation (“Lominger Evaluation”) for this

purpose. Carotti worked with managers from USEC to develop certain “competencies” for each

position within the organization. These competencies then formed the basis for the evaluation

system utilized by USEC in the reduction in workforce. The purpose of the Lominger Evaluation

was to identify those employees most suited for leadership and management positions. The

Lominger Evaluation was intended to identify those employees who would be most suited for future

promotion, but not necessarily intended to evaluate the effectiveness of employees in their current

positions.

        The USEC manual also addressed reductions in workforce. It outlined the following criteria

for employee assessment in the event of an involuntary workforce reduction: (1) performance and

demonstrated abilities, (2) relevant education and training, (3) critical skills, (4) transferability of

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Heady v. US Enrichment Corp.

skills, and (5) length of service to the company. A “Candidate Selection Worksheet” was to be used

for evaluating employees prior to the involuntary workforce reduction, including: (1) job profile

competencies; (2) relevant education and training; (3) functional and technical job competencies,

including the ability to change focus as priorities and work needs change; and (4) length of service

to the company. Job profile competencies and functional and technical job competencies were rated

on a five-point scale.

       In determining which of the three office manager positions would be eliminated, Mittendorf,

Mack, and Powell evaluated the performance of the managers. Although these three individuals did

not each have information for every rating category, they met and discussed the ratings, and relied

on one another for a full assessment of the three managers. Neither Mack nor Powell had significant

personal contact with Heady. Because Mack did not have direct supervision over Heady, he relied

on Mittendorf for ratings outside his personal knowledge. Powell also relied on Mittendorf’s

assessment of some of Heady’s competencies, but noted that Heady did not have a good rapport with

supervisors, did not relate well to “a lot of people,” was not a “true team player,” had been late

submitting reports and other information, and had purchased supplies in an untimely manner.

Mittendorf, Heady’s boss, did have significant contact with Heady. He explained that Heady

sometimes did not respond to requests in a timely manner. He also stated that Heady was sometimes

difficult to approach because she was so quiet. Mittendorf was aware of Heady’s FMLA leave,

though he stated that this leave did not impact his evaluation of her performance.

       The other two office managers in Heady’s division were Lucille Hayes and Donette

VanCleve. Heady scored lower than VanCleve on both functional and technical job competence,

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Heady v. US Enrichment Corp.

and on job profile competence. Heady did, however, have ten years of employment with USEC

while VanCleve only had five years of service. Both Heady and VanCleve had approximately the

same education and training.

       Upon determining that Heady was the lowest-rated of the three managers, USEC terminated

her. On the day of Heady’s termination, Heady had again requested additional FMLA leave.

       Approximately one year after her termination, Heady applied for a secretarial position at

USEC. USEC interviewed Heady but did not select her for the position. This decision was based,

in part, on the recommendation of Powell. Heady applied for numerous other positions at USEC,

but has provided no evidence that she was qualified for any of them.

       In February 2001, Heady filed a complaint with the Department of Labor (“DOL”) alleging

that her termination violated the provisions of the FMLA. The DOL agreed, though its April 18,

2002 letter finding such a violation stated no basis upon which this conclusion was reached. USEC

refused to accept the DOL’s findings.

       Heady then filed this action in federal district court alleging retaliation in violation of the

FMLA. The district court granted summary judgment to USEC, finding that Heady failed to show

that its reasons for termination, the reduction in workforce and Heady’s evaluation for that purpose,

were a pretext for unlawful discrimination. This appeal followed.

                                         II. ANALYSIS

A. Standard of Review

       This Court reviews a district court’s grant of summary judgment de novo. McKay v. Toyota

Motor Mfg., USA, Inc., 110 F.3d 369, 372 (6th Cir. 1997). In reviewing a motion for summary

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Heady v. US Enrichment Corp.

judgment, the court must view the facts in the light most favorable to the non-movant, drawing all

reasonable inferences in his or her favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c).

B. Heady failed to show that USEC’s reason for her discharge was a pretext for unlawful
discrimination.

       Heady claims that USEC discharged her in retaliation for her taking leave protected by the

FMLA. To survive summary judgment, Heady must provide sufficient evidence to show that the

exercise of her FMLA rights was a motivating factor in her discharge. Gibson v. City of Louisville,

336 F.3d 511, 514 (6th Cir. 2003).

       In cases such as this one, where there is no direct evidence of retaliation, this Court applies

the familiar McDonnell Douglas burden-shifting scheme, which requires that the plaintiff first make

a prima facie case of retaliation. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th

Cir. 2001). To establish a prima facie case, Heady must show: (1) that she engaged in statutorily

protected activity; (2) that she suffered an adverse employment action; and (3) that there was a

causal connection between the protected activity and the adverse employment action. Id. at 314.

       As for the first prong of the test, the FMLA requires employers to permit employees to take

twelve weeks of unpaid leave for serious health conditions which impair the employee’s ability to

carry out his or her duties. 29 U.S.C. § 2612(a)(1)(D). Heady has carpal tunnel syndrome, and she



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Heady v. US Enrichment Corp.

took leave for this condition in 1996. Heady also took FMLA leave in 1999 and 2000 for surgeries.

She requested additional FMLA leave on the date of her discharge. Accordingly, Heady engaged

in statutorily protected activity.

        Heady also met the second prong of the test because she established that she suffered an

adverse employment action. That adverse employment action was her discharge in July of 2000.



        The district court found, as to the third prong, that Heady established there was a causal

connection between Heady’s exercise of her FMLA-protected rights and her discharge: Heady was

discharged on the same day she requested additional FMLA leave. Proximity in time between a

request for FMLA-protected leave and discharge may provide sufficient evidence of a causal

connection for purposes of establishing a prima facie case of retaliation. Skrjanc, 272 F.3d at 314.

Because “[a] plaintiff’s burden in establishing a prima facie case is not meant to be an onerous one,”

the district court did not err in finding that the third prong was met. Id. at 315.

        Once Heady established a prima facie case of retaliation, the burden shifted to the defendant

to articulate a legitimate, non-discriminatory basis for Heady’s termination. Skrjanc, 272 F.3d at

314. To meet this burden, USEC adduced evidence regarding its reduction-in-workforce plan and

its determination that Heady was the lowest-rated employee of the three office managers. USEC

supported its “honest belief” that Heady was the lowest-rated manager with particularized facts that

were before it when the decision was made. Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.

1998) (applying burden-shifting scheme in ADA case). The individuals who reviewed Heady

conducted an evaluation that considered multiple competencies, explained their low ratings, and

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Heady v. US Enrichment Corp.

gave specific reasons to support the low ratings. Accordingly, USEC set forth a legitimate, non-

discriminatory reason for her discharge.

       The burden next shifted back to Heady to show that USEC’s reasons for discharging her

were pretextual. Skrjanc, 272 F.3d at 314. Heady can establish that USEC’s reasons for discharge

were pretextual by showing that the reasons given have no basis in fact, did not motivate the

discharge, or were insufficient to warrant discharge. Wexler v. White’s Fine Furniture, 317 F.3d

564, 576 (6th Cir. 2003). Heady may also meet her burden by showing that USEC’s reasons for

discharge were not credible. Peters v. Lincoln Elec. Co., 285 F.3d 456, 470 (6th Cir. 2002). While

temporal proximity is sufficient to meet the low burden required to establish a prima facie case of

retaliation in violation of the FMLA, it is not alone sufficient to establish that an employer’s

legitimate, non-discriminatory reason for discharge was a pretext. Skrjanc, 272 F.3d at 317.

Therefore, Heady must provide further evidence that creates a genuine issue of material fact

regarding the truth of USEC’s proferred reasons for her discharge.

       Heady did not provide evidence to create a genuine issue of material fact as to whether

USEC’s reasons for her termination were a pretext for unlawful discrimination. First, Heady did not

show that she was more qualified than the other two office managers. When asked about her

performance in comparison to VanCleve, Heady stated “I felt like I was an adequate employee. In

comparison, I didn’t have the opportunity to observe her typing skills or things like that, she worked

in another building and I worked in 31 building.” Although Heady did note that she was more senior

than VanCleve since she had worked at USEC for ten years and VanCleve had only worked at

USEC for five years, this fact alone was insufficient to show that Heady was more qualified,

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Heady v. US Enrichment Corp.

particularly since Heady had less seniority than VanCleve as an office manager. In addition, the

reduction-in-workforce performance evaluations of VanCleve and Heady show that VanCleve

received higher scores than Heady and that both have equivalent education and training. As for

Hayes, who Mittendorf, Mack, and Powell ranked higher than Heady on the Candidate Selection

Worksheet, it was Heady’s burden to show that she was more qualified than Hayes. Heady failed

to argue that she was more qualified than Hayes, nor has she produced any such evidence.

Accordingly, Heady does not assert that she was more qualified than Hayes, and even if she did

make such an assertion, no evidence supports it.

       Rather than provide evidence that she was more qualified than either VanCleve or Hayes,

Heady makes several arguments challenging the process by which USEC evaluated her. However,

these arguments do nothing to show that USEC’s reasons for her discharge were untrue.

       First, Heady argues that the three evaluators could not “rationally” explain the ratings with

any specific facts. Many of Heady’s low ratings were in areas that involved interpersonal skills:

approachability, composure, customer focus, interpersonal savvy, peer relationships, and

teamwork/professionalism. Powell stated in her deposition that Heady did not have a good rapport

with supervisors, did not relate well to “a lot of people,” and was not a “true team player.”

Mittendorf stated that Heady was difficult to approach. These statements rationally explain the low

ratings in customer and interpersonal skill categories. The other skill category in which Heady

received a low rating was whether she was “action oriented.” Powell described Heady’s difficulties

ordering supplies in a timely manner. Heady stated in her deposition that in response to this

deficiency, Mittendorf told her she should be more proactive and aggressive in handling problems

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Heady v. US Enrichment Corp.

of this sort. It is therefore clear that Heady had been informed that she needed to be more “action

oriented.” Absent evidence to show that she had improved, USEC’s evidence rationally supports

her low rating. Thus, USEC demonstrated a rational basis for the low ratings it gave to Heady.

        Second, Heady argues that the reasons articulated by USEC are not rational from a business

perspective. However, USEC does not claim that Heady was unqualified for her position, only that

she was the lowest-rated office manager of the three who were evaluated. The reasons articulated

by USEC – failure to submit reports and purchase supplies in a timely manner, lack of rapport with

supervisors, inability to relate well to people – clearly support Heady’s lower ratings. Accordingly,

these reasons justified Heady’s termination in the context of an involuntary workforce reduction.



        Third, Heady argues that USEC changed its workforce reduction policy prior to evaluating

individuals for discharge, which shows pretext. A close reading of the policy, however, does not

support this argument. All of the factors outlined in the USEC manual for use during an involuntary

reduction in workforce were incorporated into the evaluation sheet actually used during the

reduction. The USEC manual cited: (1) performance and demonstrated abilities; (2) relevant

education and training; (3) critical skills; (4) transferability of skills; and (5) length of service to the

company, as relevant factors for consideration during an involuntary workforce reduction. The

Candidate Selection Worksheet encompassed these factors; thus, USEC did not deviate from the

workforce reduction policy outlined in the manual.

        Finally, Heady argues that her previous evaluations rebut the ratings USEC gave her in the

involuntary-reduction-in-workforce evaluation.          Heady had received a rating of “effective

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Heady v. US Enrichment Corp.

performance” in her evaluations for the preceding three years. While this evaluation was adequate

for continued employment under ordinary circumstances, it was not USEC’s highest rating of

“exceeds expectations.” Heady received similarly average ratings in the performance review used

in the reduction in workforce. On a five-point scale, Heady received one “5” rating, seventeen “3”

ratings, six “2” ratings, and one “1” rating, with “1" being the lowest. Thus the vast majority of her

skills were rated “average,” which is exactly how she was rated the previous three years at USEC.

Therefore, Heady’s previous evaluations do not rebut her reduction-in-workforce evaluation.

       Heady also asks this Court to consider the DOL’s finding that USEC violated the FMLA.

It was within the discretion of the district court to consider an administrative finding in an

employment discrimination case. Heard v. Mueller Co., 464 F.2d 190, 194 (6th Cir. 1972). It is not

clear what weight the district court gave the DOL determination. Nevertheless, the DOL’s decision

is of limited persuasive value because it provides no analysis or justification for its conclusion that

Heady’s discharge violated the FMLA.

                                        III. CONCLUSION

       For the preceding reasons, we AFFIRM the district court’s grant of summary judgment.




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