                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0782n.06

                                          No. 11-4028                                    FILED
                                                                                     Jul 18, 2012
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk

LUANNE P. MANN,                                     )
                                                    )
       Plaintiff-Appellant,                         )       ON APPEAL FROM THE
                                                    )       UNITED STATES DISTRICT
v.                                                  )       COURT FOR THE SOUTHERN
                                                    )       DISTRICT OF OHIO
NAVICOR GROUP, LLC; INVENTIV                        )
HEALTH, INC.,                                       )
                                                    )
       Defendants-Appellees.                        )
                                                    )




       BEFORE: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Judge.*


       PER CURIAM. Luanne P. Mann appeals the district court’s grant of summary judgment in

favor of Navicor Group, LLC, and inVentiv Health, Inc., in this action alleging employment

discrimination. For the following reasons, we AFFIRM.

                                               I.

       Mann began working for Navicor, a healthcare advertising agency, as a senior art director in

November 2006. As early as January 2007, Creative Director Marvin Bowe received complaints

about Mann from her team members and began to document her performance issues. On February

2, 2007, Bowe placed Mann on a performance improvement plan, and demoted her from senior art

director to art director with a corresponding reduction in salary. Bowe also assigned Mann to a new

creative team, the Tarceva team, reporting to Associate Creative Director Keith Flint.


       *
       The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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Mann v. Navicor Group, LLC

        Mann described her initial working relationship with Flint and the rest of the Tarceva team

as “great” and expressed that she “truely [sic] enjoy[ed] working with them.” In Mann’s July 2007

performance evaluation, Flint assessed her overall performance as “exceptional,” the highest rating.

Flint eventually felt that Mann deserved her title and salary back and said that he would do what he

could to help her. Mann’s title and salary were restored on July 31, 2007.

        In late 2007, members of the Tarceva team raised concerns about Flint’s mistreatment of

them. Mann reported to Vice President of Human Resources Venice Herring that Flint “was treating

women poorly and we felt uncomfortable asking questions in meetings that we felt were important.”

In response to the complaints about Flint, Bowe called a meeting with the Tarceva creative team,

without Flint, and requested written statements from them. In this meeting, Mann and the two other

female team members were “very specific about how we noticed that women were treated

differently, and John [Catania, the only male team member,] pointed out that he noticed the treatment

that was going on and he himself hadn’t experienced any of it.” According to Bowe, the team

members came to a consensus as to three issues with Flint’s management: (1) his short temper,

(2) his negative attitude, and (3) his sarcastic and degrading remarks. After meeting with the team,

Bowe conducted an investigation and involved Herring and President Garnett Dezember.

Management ultimately concluded that the evidence did not suggest that Flint’s conduct was gender

specific.

        On January 4, 2008, Bowe, Herring, and Dezember met with Flint about his team’s concerns

and verbally reprimanded him. When management reported back to the team members about the

outcome of the meeting with Flint, Dezember offered them the opportunity to transfer to another

team, but no one wanted to transfer. Bowe began to monitor Flint’s conduct by attending the



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Mann v. Navicor Group, LLC

Tarceva team meetings and became more involved in team oversight. Bowe also altered the team’s

reporting structure by promoting Catania to group art supervisor to serve as a “buffer” between Mann

and Flint.

       In late June or early July 2008, Dezember directed Bowe “to look at making adjustments on

the creative side to help meet financial goals regarding profitability expectations and efficiency.”

Bowe had already been working on a plan to restructure the creative department “[t]o create a more

efficient structure that could expand over time” and to better align “talent to task.” Bowe identified

three individuals, including Mann, for termination. From his own personal assessment of Mann’s

talents, Bowe determined that she was lacking in the production area and that “[t]he work that she

excelled on and I commended her on was less than 20 percent of our business.”

       In the meantime, Mann learned that her mother would need to undergo chemotherapy and

discussed taking leave to care for her with Catania and Angie Lewis in the human resources

department. On July 15, 2008, Mann submitted a leave of absence request form seeking eleven

weeks of leave. Bowe became aware of Mann’s leave request on the same day he has preparing for

her termination. Bowe and Dezember decided to increase Mann’s offer of severance pay from the

standard two weeks to eleven weeks, due to her personal circumstances. On July 16, 2008, Bowe

and Herring met with Mann and terminated her employment.

       Mann subsequently filed this lawsuit against Navicor and inVentiv Health,1 alleging gender

discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e-2 and 2000e-3, and the Ohio Civil Rights Act, Ohio Rev. Code

§ 4112.02, and retaliation and interference in violation of the Family and Medical Leave Act

       1
        InVentiv Health is the parent company of four independently managed companies, including
inVentiv Communications Inc., which is the parent company of Navicor.

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Mann v. Navicor Group, LLC

(FMLA), 29 U.S.C. § 2615. Following extensive discovery, the defendants filed motions for

summary judgment, which the district court granted. This timely appeal followed.

                                                 II.

       We review de novo the district court’s decision to grant summary judgment in favor of the

defendants. Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 723 (6th Cir. 2012). 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). The court must

view the evidence and draw all reasonable inferences in favor of the non-movant and determine

“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); see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986).

       A.      Gender Discrimination

       Mann claims that her gender was a factor in Navicor’s decision to terminate her employment.

According to Mann, she can prove her claim with both direct and circumstantial evidence of gender

discrimination.

       “Direct evidence of discrimination is ‘that evidence which, if believed, requires the

conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.’”

Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en banc) (quoting Jacklyn

v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). To

constitute evidence of discrimination, a discriminatory statement must have been made by a

decisionmaker related to the decisional process. Geiger v. Tower Auto., 579 F.3d 614, 620-21 (6th



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Mann v. Navicor Group, LLC

Cir. 2009) (“‘Statements by nondecisionmakers, or statements by decisionmakers unrelated to the

decisional process itself [cannot] suffice to satisfy the plaintiff’s burden . . . of demonstrating

animus.’” (quoting Bush v. Dictaphone Corp., 161 F.3d 363, 364 (6th Cir. 1998))). The statements

upon which Mann relies as direct evidence of gender discrimination were neither made by Bowe,

the decisionmaker, nor related to the termination decision.

       Absent direct evidence, Mann must demonstrate a prima facie case of gender discrimination

through circumstantial evidence: “(1) she is a member of a protected group; (2) she was subjected

to an adverse employment decision; (3) she was qualified for the position; and (4) she was replaced

by a person outside the protected class, or similarly situated non-protected employees were treated

more favorably.” Peltier v. United States, 388 F.3d 984, 987 (6th Cir. 2004). The district court held

that Mann failed to establish a prima facie case because Catania, the male employee with whom she

sought to compare herself, was not similarly situated. “[T]o be considered ‘similarly-situated’ . . .

, the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must

be similar in ‘all of the relevant aspects.’” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d

344, 352 (6th Cir. 1998) (quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir.

1994)). Catania and Mann were not similarly situated in “all of the relevant aspects”; Catania, after

he was promoted to group art supervisor, was Mann’s supervisor. Mann contends that Catania was

a supervisor in name only, but her actions demonstrate that she viewed him as her supervisor. For

example, she discussed her need for FMLA leave with Catania and had him sign her leave of absence

request form as her supervisor.

       Furthermore, the district court found that Mann failed to present evidence that Navicor’s

stated reason for her termination was a pretext for gender discrimination. Asserting that Navicor



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Mann v. Navicor Group, LLC

changed its rationale for her termination over time, Mann engages in semantic nitpicking and relies

on speculative statements by persons not involved in the termination process to make her argument.

In reality, Navicor’s reason for Mann’s termination has remained the same—Bowe, in restructuring

the creative department to make it more efficient and to better align “talent to task,” determined that

Mann’s talents in conceptual design work did not align with the production work comprising the

majority of the work that art directors perform at Navicor. The district court properly granted

summary judgment in favor of the defendants for this additional reason.

        Citing the “cat’s paw” theory of liability recognized in Staub v. Proctor Hosp., 131 S. Ct.

1186, 1194 (2011), Mann argues that Flint influenced Bowe’s decision to terminate her employment.

In support of this argument, Mann relies on a May 22, 2008, email from Flint to Bowe about issues

with another team member, Cat Spath, in which Mann was referenced only parenthetically. This

vague reference is insufficient to create an issue of fact as to whether Flint influenced the termination

decision.

        B.      Sexual Harassment

        Mann claims that Flint subjected her to unwelcome sexual harassment. Actionable

harassment occurs “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule,

and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment

and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)

(internal citations omitted) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)).

“Both an objective and subjective test must be met; in other words, the conduct must be so severe

or pervasive as to constitute a hostile or abusive working environment both to the reasonable person

and the actual victim.” Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006).



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Mann v. Navicor Group, LLC

In determining whether a working environment is hostile or abusive, we look “at all the

circumstances,” including “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Harris, 510 U.S. at 23.

       In support of her hostile work environment claim, Mann asserts that Flint asked her to leave

her partner on “countless” occasions, beginning approximately three months after she joined the

Tarceva team until she asked him to stop shortly before she went to Greece with her partner on July

1, 2007. Flint also suggested that Mann “ditch” her partner and take him on the trip to Greece

instead. When Mann showed Flint a diamond ring that her partner had given her for their

anniversary, he angrily commented, “I guess that means we’ll never be together,” and stormed off.

On another occasion, Flint approached Mann where she stood with Spath near the elevators, zipped

and unzipped Mann’s hooded sweatshirt, and then walked off. Flint once called Mann into his

office, shut the door, and told her a joke “about an overweight black woman that worked at a Wal-

Mart” and “something about a penis and her manager.” When Flint appeared to be in a bad mood,

Mann asked him if he was all right, and he responded that “he was lonely” and that “he wanted to

be dating somebody.” Mann said that she thought he was dating someone, and Flint responded that

the woman he was seeing was not his type, and that he preferred women who do not shave or bathe

and “have a strong smell.”

       Considering Mann’s allegations as a whole, we agree with the district court that Flint’s

alleged conduct was not so severe or pervasive that a reasonable person would find the working

environment hostile or abusive. With the exception of Flint’s comments about leaving her partner,

which Mann conceded were made “in a way that came across as jovial” and ceased when she asked



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Mann v. Navicor Group, LLC

him to stop, Mann complains about four discrete and isolated incidents, only one of which involved

any physical contact. This evidence is insufficient to establish Mann’s claim. See Clark v. United

Parcel Serv., Inc., 400 F.3d 341, 351 (6th Cir. 2005) (holding that the purported harassment was not

sufficiently severe or pervasive where the plaintiff claimed that the alleged harasser “told vulgar

jokes, . . . twice placed his vibrating pager on her thigh as he passed her in the hall, and . . . pulled

at her overalls after she told him she was wearing a thong”). The district court properly granted

summary judgment in favor of the defendants on Mann’s sexual harassment claim.

        C.      Retaliation

        Mann alleges that Navicor terminated her in retaliation for her complaints about Flint’s

gender discrimination and sexual harassment. To establish a prima facie case of retaliation, Mann

must demonstrate that: (1) she engaged in protected activity; (2) Navicor knew of her exercise of

protected rights; (3) Navicor subsequently took an adverse employment action against her; and

(4) there was a causal connection between her protected activity and the adverse employment action.

Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009). Assuming that Mann’s complaints

about Flint constituted protected activity, we find that her prima facie case fails because there is no

evidence of a causal connection between her complaints and her termination. Where, as here, “some

time elapses between when the employer learns of a protected activity and the subsequent adverse

employment action, the employee must couple temporal proximity with other evidence of retaliatory

conduct to establish causality.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.

2008). As evidence of retaliatory conduct, Mann again relies on the May 22, 2008, email from Flint

to Bowe which references her only parenthetically. As we stated above, this vague reference is

insufficient to create a genuine dispute of material fact. Moreover, Spath, who also complained that



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Flint treated women differently, was not selected by Bowe for termination, further undermining

Mann’s theory. Because Mann failed to demonstrate a prima facie case of retaliation, summary

judgment on her retaliation claim was appropriate.

       D.      FMLA

       Mann asserts both retaliation and interference claims under the FMLA. To establish a prima

facie case of FMLA retaliation, Mann must show that: (1) she was engaged in an activity protected

by the FMLA; (2) Navicor knew that she was exercising her rights under the FMLA; (3) after

learning of her exercise of FMLA rights, Navicor took an employment action adverse to her; and

(4) there was a causal connection between her protected FMLA activity and the adverse employment

action. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012). We agree with the district court

that Mann failed to demonstrate a causal connection. There is no evidence indicating that Bowe was

aware of Mann’s intent to request FMLA leave when he made the decision to terminate her

employment.

       Mann’s interference claim likewise fails. To establish a prima facie case of FMLA

interference, Mann must show that: (1) she was an eligible employee under the FMLA; (2) Navicor

is an employer as defined under the FMLA; (3) she was entitled to leave under the FMLA; (4) she

gave Navicor notice of her intent to take leave; and (5) Navicor denied her FMLA benefits to which

she was entitled. Donald, 667 F.3d at 761. We have noted that:

       “[A]n employee who requests FMLA leave would have no greater protection against
       his or her employment being terminated for reasons not related to his or her FMLA
       request than he or she did before submitting that request.” An employee lawfully
       may be dismissed, preventing him from exercising his statutory rights to FMLA leave
       or reinstatement, but only if the dismissal would have occurred regardless of the
       employee’s request for or taking of FMLA leave.




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Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003) (citation omitted) (quoting Gunnell

v. Utah Valley State Coll., 152 F.3d 1253, 1262 (10th Cir. 1998)). Bowe’s decision to terminate

Mann’s employment was unrelated to her request for FMLA leave, given that there is no evidence

that he was aware of her intent to request FMLA leave when he made the termination decision.

Mann’s request for FMLA leave does not shield her from the previously-made decision to terminate

her employment.

       E.     inVentiv Health

       InVentiv Health moved for summary judgment on the basis that it was never Mann’s

“employer.” The district court properly found that inVentiv Health was entitled to summary

judgment, even if it could be considered Mann’s “employer,” because Navicor was entitled to

summary judgment.

                                              III.

       Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of the

defendants.




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