               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0657n.06

                                      Case No. 13-4390
                                                                                     FILED
                                                                               Aug 21, 2014
                                                                           DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


NADIA NATHAN,                                       )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )        ON APPEAL FROM THE
v.                                                  )        UNITED STATES DISTRICT
                                                    )        COURT     FOR      THE
THE OHIO STATE UNIVERSITY, et al.,                  )        SOUTHERN DISTRICT OF
                                                    )        OHIO
       Defendants-Appellees.                        )
                                                    )
                                                    )
                                                                       OPINION

BEFORE: GIBBONS and McKEAGUE, Circuit Judges; LAWSON, District Judge.*

       McKEAGUE, Circuit Judge. Dr. Nadia Nathan brings a Title VII discrimination and

retaliation action against the Ohio State University (“OSU”).      Dr. Nathan joined OSU’s

anesthesiology department as a cardiac anesthesiologist and Associate Professor in 2005. She

was terminated from her position in 2009 purportedly because of work-related difficulties. Dr.

Nathan initiated the present action against OSU in September of 2010, alleging that she was

discriminated against on the basis of her gender and also retaliated against for bringing a

discrimination lawsuit in Massachusetts against her previous employer.      The district court

granted OSU’s motion for summary judgment after determining that Dr. Nathan had failed to


*
 The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Case No. 13-4390 Nathan v. The Ohio State University, et al.


show that the proffered reasons for her termination were pretexual. For the same reasons

detailed in the district court opinion, we AFFIRM the grant of summary judgment.

       Following discovery, OSU moved for summary judgment in July of 2012. Focusing on

Dr. Nathan’s Title VII retaliation and discrimination claims, which are the only claims before us

on appeal, OSU argued in its initial motion for summary judgment that Dr. Nathan had not

demonstrated a prima facie case of discrimination, and even if she had, OSU contended that it

had articulated a legitimate, non-discriminatory reason for her termination. Specifically, OSU

alleged that Dr. Nathan was terminated because she was unproductive, unprofessional,

disruptive, chronically late, and generally unavailable. OSU additionally expressed suspicion

that Dr. Nathan had faked being sick, and further alleged that Dr. Nathan had manipulated the

clinical schedule, received low resident evaluations, and frequently failed to timely enter

postoperative orders. Dr. Nathan countered that these arguments were not based in fact and were

insufficient to warrant her termination.

       In a lengthy 37-page opinion, the district court thoroughly evaluated all of Dr. Nathan’s

claims under the well-established McDonnell-Douglas burden-shifting framework.1              See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). The district court assumed for

purposes of its analysis that Dr. Nathan had established a prima facie case of discrimination and

retaliation, and focused its attention on the pretext analysis. The district court extensively

evaluated each of the proffered legitimate non-discriminatory reasons for Dr. Nathan’s

termination and concluded that they were supported by a clear basis in fact. The district court

1
  Under McDonnell-Douglas, the complainant has the burden of establishing a prima facie case
of discrimination. McDonnell Douglas, 411 U.S. at 802. If this burden is met, the employer
must “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. at
802. At that point, the burden shifts back to the complainant to demonstrate by a preponderance
of the evidence that the legitimate reasons offered by the defendant were pretextual. Id. at 804;
see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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Case No. 13-4390 Nathan v. The Ohio State University, et al.


further probed OSU’s motivation for dismissing Dr. Nathan and assessed whether her conduct

was sufficiently improper to warrant termination.       After a comprehensive discussion and

analysis, the district court concluded that Dr. Nathan had failed to show that any other

anesthesiologist had the same degree and breadth of performance issues and was retained by

OSU.

        We agree with this analysis. After reviewing the briefs, the district court’s opinion, and

the voluminous record, we conclude that the district court properly granted summary judgment to

OSU. Notwithstanding Dr. Nathan’s allegations to the contrary, OSU has provided substantial

evidence to support its proffered rationales for Dr. Nathan’s dismissal. Dr. Nathan has simply

not identified any comparator, similarly situated in all relevant respects and engaged in acts of

comparable seriousness, who was retained. See Wright v. Murray Guard, Inc., 455 F.3d 702,

710 (6th Cir. 2006). Dr. Nathan attempts to pick apart this analysis by isolating each issue,

whether post-operative orders or her disruptive behavior, and to argue that there were systematic

problems that account for her poor performance or that others had performance issues or that her

poor performance should be excused. But this misses the point. The question is not whether

other employees also performed poorly in one or two areas, but whether taken altogether they

performed equally as poorly as Dr. Nathan and whether her conduct as a whole justified her

dismissal. As the district court properly noted, none of the other doctors who were retained

match Dr. Nathan for the variety and severity of her misconduct, and those that did were

dismissed. Because Dr. Nathan has not presented evidence from which a reasonable trier of fact

could find that OSU’s proffered nondiscriminatory reasons for her termination were pretextual,

her claim fails.




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Case No. 13-4390 Nathan v. The Ohio State University, et al.


       As the district court correctly set out the applicable law and correctly applied that law to

the factual allegations, issuance of a full opinion by this court would serve no jurisprudential

purpose. Accordingly, for the reasons stated above and for the reasons thoroughly discussed in

the district court’s well-reasoned opinion, we AFFIRM the grant of summary judgment on Dr.

Nathan’s discrimination and retaliation claims.




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