                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0045n.06

                                          No. 16-3091

                         UNITED STATES COURT OF APPEALS
                                                                                     FILED
                                                                               Jan 20, 2017
                              FOR THE SIXTH CIRCUIT
                                                                           DEBORAH S. HUNT, Clerk
FARLEY M. LEE,                                          )
                                                        )
     Plaintiff-Appellant,                               )
                                                        )
v.                                                      )
                                                             ON APPEAL FROM THE
                                                        )
                                                             UNITED STATES DISTRICT
CLEVELAND CLINIC FOUNDATION, et al.,                    )
                                                             COURT FOR THE NORTHERN
                                                        )
                                                             DISTRICT OF OHIO
     Defendants-Appellees.                              )
                                                        )
                                                        )
                                                        )
                                                        )


BEFORE: KEITH, McKEAGUE, and WHITE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Farley Lee (“Plaintiff”) appeals from the district

court’s order for summary judgment in favor of Cleveland Clinic Foundation, et al. (“CCF” or

“Defendants”). The district court concluded that Plaintiff’s claims of race, national origin, and

age discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”)

and the Age Discrimination in Employment Act (“ADEA”) lacked any genuine dispute as to

material fact and that Defendants were entitled to summary judgment as a matter of law.

Plaintiff also appeals the district court’s rulings on a motion to strike and a motion to compel

discovery. We AFFIRM the district court’s motion rulings and REVERSE the district court’s

summary judgment decision.




                                                 
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
                                    I.     BACKGROUND

       Plaintiff is of Chinese descent and was 61 years old at the time of the events at issue.

(Lee Br. at 4, 6) Plaintiff was born in India and immigrated to the United States in 1976 when

she was 23 years old. (Id.) Plaintiff worked at CCF for thirty-eight years as a registered nurse

(“RN”). (Id.) Plaintiff received many awards for her service, including Nurse of the Year. (Id.)

       In 2009, Plaintiff began reporting to supervisor Josalyn Meyer (“Meyer”). (Id. at 7)

Meyer generally gave Plaintiff positive reviews for her work performance. (Id.)

       However, while employed with CCF, Plaintiff began feeling as though she was being

discriminated against because of her age. Plaintiff alleged that during performance reviews in

2013 and 2014, Meyer commented on Plaintiff’s long tenure, told her “things have changed” and

asked her when she was going to retire. (Lee Dep. I. R. #33-5, 305:23-25; 306-1-25; 307:1-3)

On a third occasion, Meyer passed by Plaintiff while she was walking in the skyway of the clinic

and inquired as to where Plaintiff was going. Plaintiff informed her that she was going to the

gym to “de-stress.” (Id. at 306: 12-21; 346: 19-25) Meyer then replied, “My father was a

laborer when he was 15 years old and he doesn’t know when to stop.” (Id.)

       In addition to age discrimination, Plaintiff began to feel she was being discriminated

against on the basis of race and national origin. Plaintiff alleges that younger nurses called her

an “oldbie” or “old bitch” and referred to rice she ate as “lice.” (Lee Dep. R. #33-4 at 170) She

asserts that one nurse stated, “you Chinese people eat anything that crawls and walks” and also

stated that Plaintiff does not have “chinky eyes” even though she is Chinese. (Id.) In December

2013, Plaintiff reported the incident to a different supervisor, Debbie Brosovich (“Brosovich”),

who responded that she was “overreacting” and being “sensitive.” (Lee Dep. R. #33-5 at 342:14-

19)



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
       On April 15, 2014, Meyer called Plaintiff into her office to discuss an incident in which

Meyer asserted that Plaintiff had been “pushy or abrasive” with a patient. (Lee Aff. R. #29-11 ¶

11) At that meeting, Plaintiff complained that she was being discriminated against because of

her age and race. (Id.) On April 17, 2014, Plaintiff complained to Brosovich that Meyer

discriminated against her because of her age and race. (Id. ¶ 12; Lee Dep. R. #33-4 at 165:8-19;

Brosovich Dep. R. # 33-1 at 41:11-25) Brosovich informed Meyer of the complaint before

calling Human Resources (“HR”) to inform them of the same. (Brosovich Dep. R. #33-1 at 162-

63)

       On April 30, 2014, Meyer issued Plaintiff her first corrective action and performance

improvement plan (“PIP”) for “lack of nursing care and communication” and failure to take

“personal accountability” for those actions. (Meyer Dep. R. #33-6 at 236-237; 159:20-22)

Meyer testified that a patient’s family orally complained that Plaintiff failed to administer

medication to the patient, informed the patient that the mistake was a nursing student’s, and

urged the patient’s family not to report the error. (Meyer Dep. R. #23-6 at 157-61) However,

there is no record of any patient filing a written complaint against Plaintiff. (Meyer Dep. R. #33-

6 at 256:19-25; 257:1-23)

       After the issuance of the PIP, Plaintiff filed another complaint in writing with CCF’s

Senior HR Director, Jill Prendergast (“Prendergast”), challenging the PIP and claiming a hostile

work environment. (Prendergast Dep. R. #33-9 at 116-117; Lee Ex. 82 R. #29-17 at 2; Lee Ex.

83 R. #29-17 at PageID #847) Her request for relief under the CCF Right of Review Policy was

denied. (Prendergast Dep. R. #33-9 at 89)

       On May 12, 2014, Plaintiff met with Lisa Ullman (“Ullman”) from HR and complained

that she was being treated differently because of her age and race. (Ullman Dep. R. #33-10 at



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
58:19-25; 59:1-4; 76:11-21; 81:11-23)       Plaintiff told her that Meyer had asked about her

retirement and made comments about her own father’s retirement. (Id. at 77:17-25; 78-1-2)

Plaintiff told Ullman that she feared her managers were trying to discharge her. (Id. at 100:3-25;

101:1) However, HR did not investigate her complaints because it was determined that “there

was nothing to investigate.” (Id. at 105:15-19)

       Plaintiff testified that she was given a heavier workload than other nurses. (Lee Dep. R.

#33-5 at 307) When she asked for a lighter load, she was admonished. (Id.) Plaintiff testified

that assistant nurse managers constantly followed her around the unit and questioned her patients

about her work performance, which she claims they did not do to younger, Caucasian nurses.

(Lee Dep. R. #33-5 at 309:2-9)

       On July 16, 2014, Meyer prepared another corrective action against Plaintiff, which was a

written warning, regarding failure to provide safe care for a patient with a serious medical

condition. (Lee Ex. 109 R. #29-17 at 4-5) The corrective action alleged that Plaintiff failed to

monitor and escalate elevated vital signs to the medical team. (Id.) When Plaintiff received the

corrective action on Friday, July 18, 2014, she again complained of discrimination and told

Meyer that she planned to get a lawyer. (Meyer Dep. R. #33-6 at 243:23-25; 244:1-7) A few

hours later, she was suspended for at least three workdays pending investigation for allegedly

confronting the patient after receiving the corrective action, telling the patient that she was being

fired, and upsetting the patient, who then complained about the incident to the nursing staff.

(Brosovich Dep. R. #33-1 at 168:1-16; Defendants’ Ex. 27 R. # 33-21 at PageID # 3758) Shortly

after midnight on July 21, 2014, Plaintiff sent an email to Defendants stating: “Effective

immediately on this day of Sunday, July 20, 2014 I am submitting my resignation . . . .” (Ex. R.

# 32-7 at PageID # 1052) After Plaintiff resigned, Meyer hired several RNs, all below the age of



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
thirty, starting with Matt Holdyk (“Holdyk”), a twenty-nine year old Caucasian male. (Meyer

Dep. R. 33-6 at 291-92)

       Plaintiff filed a discrimination complaint in federal district court. (Complaint R. #1)

During the pendency of the case, Plaintiff received employment files for each nurse in her unit;

she filed a Notice of Discovery Dispute with the court challenging CCF’s failure to provide

employment files for an additional 80 nurses who worked on units different from Plaintiff but

who were still under Meyer’s supervision. (Notice R. #14) As an apparent compromise, the

district court granted only a random sampling of ten percent of the 80 files. (Order R. #18 at

PageID 227) The district court found that compelling the production of all 80 of the files would

be unduly burdensome for Defendants. (Id.)

       CCF later filed a Motion for Summary Judgment on the basis that Plaintiff’s claim lacked

any genuine dispute as to material fact and that Defendants were entitled to judgment as a matter

of law. (MSJ R. #23) The Motion included a declaration from Meyer and business records she

authenticated. Plaintiff moved for an extension of time to file a response to the Motion. (Motion

R. #24) The district court granted the extension and ordered that “there will be no further

extensions given the Final Pretrial and Trial dates.” (Order issued 11/10/2015) Plaintiff then

sought to extend the page limit by an additional ten pages. (Motion R. #25) The district court

granted an extension of five pages. (Order issued 11/13/2015) Plaintiff then filed her brief in

opposition of the Motion for Summary Judgment. (Opp’n. R. #29)

       Later, Plaintiff filed a Motion to Strike Meyer’s declaration, which was made after

Meyer’s deposition testimony.     (Motion R. #30)     Plaintiff argued that the declaration was

inconsistent with prior record evidence and contained or incorporated documents that were

inadmissible hearsay, unfairly prejudicial, and not properly authenticated. (Id.) The district



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
court denied the motion, finding that Plaintiff was aware of these arguments at an earlier time,

but only made them after filing her opposition to the summary judgment motion to avoid the

page limit by asserting the argument in a separate motion. (Order R. #31)

         The district court later granted CCF’s Motion for Summary Judgment. (Order R. #34)

Plaintiff timely appealed. (Notice R. #36)

                                    II.     DISCUSSION

                               A.         Standard of Review

         “We review a district court order granting summary judgment de novo.” Coble v. City of

White House, Tenn., 634 F.3d 865, 867 (6th Cir. 2011) (citation omitted). “Summary judgment

is proper if the evidence, taken in the light most favorable to the nonmoving party, shows that

there are no genuine issues of material fact and that the moving party is entitled to a judgment as

a matter of law.” Id. at 867-68 (quoting Schreiber v. Moe, 596 F.3d 323, 329 (6th Cir. 2010)).

         Because the district court granted summary judgment in favor of Defendants, it is

important to impress upon our standard of review in this case.

                Summary judgment should be granted only where the moving
                party is entitled to judgment as a matter of law, where it is quite
                clear what the truth is and no genuine issue of fact remains for
                trial. The purpose of the rule is not to cut litigants off from the
                right to trial by jury if they really have issues to try.

Rogers v. Peabody Coal Co., 342 F.2d 749, 751 (6th Cir. 1965) (citing Sartor v. Arkansas Nat.
Gas Corp., 321 U.S. 620, 627 (1994)) (emphasis added).

                                           B.     Analysis

    1.   Age, Race, and National Origin Discrimination Claims

         Plaintiff alleges that CCF discriminated against her based on her age, race, and national

origin. “Title VII provides that it shall be unlawful for an employer to ‘discharge any individual,

or otherwise to discriminate against any individual with respect to . . . compensation, terms,

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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
conditions, or privileges of employment, because of such individual’s race[]’” or national origin.

Weeks v. Michigan Dept. of Comty. Health, 587 F. App’x 850, 855 (6th Cir. 2014) (quoting

42 U.S.C. § 2000e-2(a)(1)). Further, “[t]he ADEA prohibits employers from discriminating

‘against any individual with respect to his compensation, terms, conditions or privileges of

employment, because of such individual’s age.’” Ercegovich v. Goodyear Tire & Rubber Co.,

154 F.3d 344, 350 (6th Cir. 1998) (quoting 29 U.S.C. § 623 (a)). “A plaintiff may establish a

claim of discrimination either by introducing direct evidence of discrimination or by proving

inferential and circumstantial evidence that would support an inference of discrimination.”

Weeks, 587 F. App’x at 855 (citation omitted).

       Plaintiff alleges that she can prove direct evidence of discrimination. “Direct evidence is

evidence that requires the conclusion, without any inference, that unlawful discrimination was at

least a motivating factor in an employer’s actions.” Douglas v. Eaton Corp., 577 F. App’x 520,

523 n.1 (6th Cir. 2014) (citing Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003)). “Any

discriminatory statements must come from decisionmakers to constitute evidence of

discrimination.” Flones v. Beaumont Health System, 567 F. App’x 399, 404 (6th Cir. 2014)

(citations omitted).   “Statements by nondecisionmakers, or statements by decisionmakers

unrelated to the decisional process itself, do not satisfy the plaintiff’s burden to demonstrate

animus.” Id.

       In her opposition to summary judgment, Plaintiff argued that Meyer’s questions to

Plaintiff concerning when she would retire constituted direct evidence of age discrimination.

(Lee Op. R #29 at 23) Plaintiff also argued that her coworkers’ comments that she was an

“oldbie” and their derogatory comments about her Chinese heritage constituted direct evidence

of discrimination because her supervisor refused to investigate the allegations after she made the



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
complaint.     (Id.)   However, the proffered racial comments are not direct evidence of

discrimination because a decisionmaker did not make them. They were made by Plaintiff’s

coworkers. See Flones, 567 F. App’x at 404. Additionally, Meyer’s comments regarding

Plaintiff’s retirement decisions are not direct evidence of age discrimination because they require

an inference that Meyer’s comments concerning retirement were a proxy for age discrimination.

That is, her comments require us to infer that she asked Plaintiff about her retirement because

she wanted to pressure Plaintiff to retire and was motivated to do so on account of Plaintiff’s age.

Further, Meyer’s comments regarding retirement were unrelated to the decisionmaking process

and accordingly do not provide direct evidence of unlawful discrimination. See id.

       Because Plaintiff lacks direct evidence of discrimination, we look for circumstantial

evidence, which requires employing the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Weeks, 587 F. App’x at 855.

             Under McDonnell Douglas, Plaintiff bears the initial burden of
             establishing a prima facie case of discrimination. If Plaintiff succeeds
             in making out the elements of a prima facie case, the burden of
             production shifts to Defendant[s] to articulate some legitimate,
             nondiscriminatory reason for its actions. If Defendant[s] satisf[y]
             [their] burden of production, the burden shifts back to Plaintiff to
             demonstrate that the proffered reason was not the true reason for the
             adverse action.

Id. (internal citation and quotation marks omitted).

             a. Prima Facie Case

       To establish a prima facie case of discrimination, Plaintiff must prove that she was: (1) a

member of a protected class; (2) subjected to an adverse employment action; (3) otherwise

qualified for the position held; and (4) replaced by someone outside of the protected class or that

similarly situated employees outside of the protected class were treated more favorably. Clayton

v. Meijer, Inc., 281 F.3d 607, 610 (6th Cir. 2002) (citation omitted). It is undisputed by the

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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
parties that Plaintiff is a member of a protected class and qualified for the RN position. CCF

asserts that Plaintiff did not suffer an adverse employment action because they did not discharge

her and thus she cannot prove that similarly situated employees were treated more favorably.

                     i. Adverse Employment Action

        Plaintiff argues that CCF subjected her to various adverse employment actions, including

unwarranted discipline, increased surveillance, termination, or in the alternative, an indefinite

suspension without pay. (Lee Br. at 26) Plaintiff additionally argues constructive discharge.

(Id. at 31)

        An adverse employment action is “a materially adverse change in the terms of . . .

employment.”       Kocsis v. Multi-Care Management Inc., 97 F.3d 876, 885 (6th Cir. 1996).

“Termination, decrease in wage or salary, change in title, diminished material responsibilities, or

a material loss of benefits are all examples of a materially adverse change.” Mensah v. Michigan

Dept. of Corrections, 621 F. App’x 332, 334 (6th Cir. 2015).

                           1. Increased Surveillance and Discipline

        Increased surveillance and discipline, whether warranted or not, do not constitute a

material adverse change in the terms of employment in the discrimination context because those

actions do not “constitute[] a significant change in employment status, such as hiring, firing,

failing to promote, reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits.” White v. Baxter Healthcare Corp., 533 F.3d 381, 402

(6th Cir. 2008).

                           2. Termination

        Plaintiff argues that the district court erred in finding that CCF did not terminate her.

Plaintiff asserts that CCF terminated her by telling her never to return to her place of work and



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
informing her that they would mail her belongings.           (Lee Dep. R. 33-4 PageID #1582)

CCF responds by claiming that there is no evidence that it intended to terminate Plaintiff.

However, when viewing the evidence in a light most favorable to Plaintiff, a jury could conclude

that these actions established that CCF intended to terminate her. Thus, whether CCF terminated

Plaintiff is a fact question for a jury to decide and the district court erred in making that finding

at the summary judgment stage.

       Even if a factfinder could conclude that CCF did not terminate Plaintiff, there is a

genuine issue of whether CCF constructively discharged her. “To demonstrate a constructive

discharge, the plaintiff must show that (1) the employer deliberately created intolerable working

conditions, as perceived by a reasonable person; (2) the employer did so with the intention of

forcing the employee to quit; and (3) the employee actually quit.”           Hurtt v. International

Services, Inc., 627 F. App’x 414, 420 (6th Cir. 2015) (citation omitted). It is undisputed that

Plaintiff resigned, satisfying the third prong; consequently, we analyze the first two prongs of

constructive discharge.

       When analyzing the prong of intolerable working conditions, this court has held that

“whether a reasonable person would have felt compelled to resign depends on the facts of each

case, but we consider several factors, including but not limited to, reduction in salary and

badgering, harassment, or humiliation by the employer calculated to encourage the employee’s

resignation.” Id. Drawing all inferences in favor of Plaintiff, the record reflects that CCF

employees subjected Plaintiff to humiliation through derogatory racial slurs, and pertinently, that

these slurs generally went uninvestigated by CCF despite Plaintiff’s complaints. Further, the

record demonstrates that Meyer questioned Plaintiff about her retirement on various occasions,

which a jury could conclude was harassment. The district court found that none of these events



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
would amount to evidence of an intolerable working environment.         However, in Logan v.

Denny’s Inc., 259 F.3d 558 (6th Cir. 2001), a case with similar facts, we determined that a

genuine issue of material fact remained as to whether the plaintiff was subject to intolerable

working conditions. In Logan, management and co-workers made comments to an employee

such as “We don’t serve ‘grits’ here,” “You’re probably used to that ‘first of the month rush,’”

and “These must have been some of your people,” when referring to people who did not want to

pay for their food. Id. at 572.1 This court reasoned that the comments carried “an inference of

invidious discrimination” in that they were made because of the employee’s race, “sufficient

enough to create a question of fact as to whether the comment[s were] harassing and created an

intolerable atmosphere.”    Id.   While this court in Logan acknowledged other adverse

employment actions that were enough to satisfy the constructive discharge inquiry, including

demotion and salary and responsibility reduction, it went on to analyze the racially motivated

comments in isolation and concluded that they were enough to create a fact question of whether

the plaintiff was subject to an intolerable work environment. Id. Similarly, in this case, the

comments made to Plaintiff by her coworker, on their own, carried an inference of invidious

discrimination as they were even more explicit than those made in Logan. They were overt

comments that clearly concern Plaintiff’s race and national origin. While management did not

make those comments, viewing the evidence in a light most favorable to Plaintiff requires the

finding that management failed to investigate the comments when Plaintiff informed them of

such, thus unreasonably failing to respond to the coworker harassment.         Cf. Hawkins v.

Anheuser-Busch, Inc., 517 F.3d 321, 341 (6th Cir. 2008) (concluding that summary judgment

was improper when the evidence showed that employer failed to investigate harassment

                                                       
             1
                 The court found that in the context of the local community, these comments were
references to low-income people and racial minorities. Id.
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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
complaints). Further, the record shows that Meyer questioned Plaintiff regarding her retirement

on several occasions. Unlike our case of Lindsey v. Whirlpool Corp., 295 F. App’x 758, 770-71

(6th Cir. 2008), where the plaintiff was subjected to similarly discriminatory comments but her

employer promptly investigated and addressed the comments, CCF generally failed to investigate

Plaintiff’s complaints. Accordingly, a genuine issue of material fact remains as to whether these

comments constituted harassment and humiliation strong enough to compel resignation and

whether any failure to investigate contributed to a constructive discharge.

       With regard to the second prong of constructive discharge, the employer’s intention to

force the employee to quit, a reasonable juror could find that Meyer intended to question Plaintiff

repeatedly about her retirement plans because she was an older employee who may be more

likely to retire and that she did so with the intention that Plaintiff quit her job. A reasonable juror

could further find that CCF intended not to investigate Plaintiff’s claims of age, race, and

national origin discrimination because it wanted Plaintiff to leave her job. Those findings will

hinge upon credibility determinations.        “Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of

a judge, whether [s]he is ruling on a motion for summary judgment or for a directed verdict.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, factual questions remain for a

reasonable jury to answer with regard to constructive discharge and Plaintiff has established this

element of her prima facie case.

                           3. Indefinite Suspension Without Pay

       In White v. Burlington Northern, this court held that suspension without pay constitutes

an adverse employment action. White v. Burlington Northern & Santa Fe R. Co., 364 F.3d 789,

803 (6th Cir. 2004). The record reflects that Meyer suspended Plaintiff on Friday, July 18, 2014,



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
for at least three days. (Defendants Exhibit 27 R. # 33-21 at PageID # 3758) Meyer instructed

Plaintiff not to return to work or call into the unit until she was instructed to do so. (Id.) While

Meyer testified at her deposition that she suspended Plaintiff with pay, (Meyer Dep. R. # 33-6 at

263-64), Brosovich testified that Plaintiff’s suspension was without pay. (Brosovich Dep. R. #

33-1 at 188) Plaintiff stated that she has not received payment for the days that she was

suspended. (Lee Aff. R. #29-11 at PageID # 720) The district court found that whether Plaintiff

was suspended with or without pay was not dispositive because Plaintiff submitted her

resignation on Monday, July 21, 2014, at 12:08 a.m., before her suspension could take effect.

(Ex. R. # 32-7 at PageID # 1052) The district court reasoned that the suspension was not an

adverse employment action because Plaintiff resigned before she could suffer any financial loss

as a result of the suspension. (Order, R. #34 at 16)

       While we have not directly dealt with the issue of whether a suspension without pay must

be served, or simply issued, to constitute an adverse employment action, our sister circuits have

persuasively held that service of a suspension is a requirement if it is to rise to the level of an

adverse employment action. The Seventh Circuit has held that “a suspension without pay that is

never served does not constitute an adverse employment action.” Nagle v. Village of Calumet

Park, 554 F.3d 1106, 1120 (7th Cir. 2009) (internal quotations and citations omitted). This

interpretation is in keeping with the Supreme Court’s observation that discrimination must

involve a “tangible” employment action that “in most cases inflicts direct economic harm.”

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762 (1998). Failure to allow that harm to

manifest prevents the tangible employment action from taking place.           We have cautioned

employees “not to assume the worst, and not to jump to conclusions too fast.” Agnew v. BASF

Corp., 286 F.3d 307, 310 (6th Cir. 2002) (quoting Garner v. Wal-Mart Stores, Inc., 807 F.2d



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
1536, 1539 (11th Cir. 1987)). Thus, consistent with the Supreme Court, the holdings of our

sister circuits, and this court’s own pronouncements, Plaintiff’s suspension without pay was not

an adverse employment action because she resigned before she could serve the suspension.

                   ii. Replacement and Treatment of Similarly Situated Employees

       To prove the last prong of the prima facie case, Plaintiff asserts that Meyer hired a 29-

year-old Caucasian male, Holdyk, to replace her. The district court found that “it was not clear

from the testimony that the male was actually hired to replace [Plaintiff’s] position or merely

was selected for a job [Plaintiff] had previously performed.” (Order, R. #34 at 18) Meyer

testified that Holdyk was among a group of individuals who applied for nurse positions that were

open before Plaintiff’s resignation, but Holdyk was the first hired following Plaintiff’s

resignation. Whether CCF hired Holdyk to replace Plaintiff is a genuine issue of material fact

for the jury to determine. Viewing the evidence in the light most favorable to the nonmoving

party, however, would require the district court to find that Meyer hired Holdyk to replace

Plaintiff. Consequently, Plaintiff establishes the final element of her prima facie case and the

district court erred in finding that Plaintiff failed to prove a prima facie case of discrimination at

the summary judgment stage.2


                                                       
             2
                While Defendants fail to mention Holdyk’s hire at all, they counter Plaintiff’s argument
that similarly situated non-Asian nurses were treated more favorably. This argument is of no
moment because if CCF replaced Plaintiff with someone outside of a protected class, she is not
required to prove dissimilar treatment. See Clayton, 281 F.3d at 610 (prima facie framework
requiring proof that Plaintiff was replaced by someone outside of the protected class or similarly
situated employees outside of the protected class were treated more favorably). Nonetheless,
Plaintiff argues that five other nurses were treated more favorably despite their similarly alleged
misconduct. The district court found, ultimately, that there was a difference between those
nurses and Plaintiff: they were remorseful for their misconduct, while Plaintiff refused to
acknowledge any wrongdoing. Further, the district court found that all of those similarly situated
nurses were treated the same as Plaintiff—they were counseled about the incidents and an
anecdotal was placed in their employee files. However, the district court erred because it
engaged in impermissible fact-finding at the summary judgment stage. Whether the comparable
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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
                    b. Legitimate, Non-Discriminatory Reason and Pretext

             After Plaintiff proves her prima facie case, the burden shifts to CCF to articulate a

legitimate, nondiscriminatory reason for its actions. Once the legitimate nondiscriminatory

reason is established, Plaintiff must show that the reason proffered by CCF is merely a pretext

for discrimination. “A plaintiff can demonstrate pretext by showing that the proffered reason

(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or

(3) was insufficient to warrant the challenged conduct.” Maben v. Southwestern Med. Clinic,

630 F. App’x 438, 443 (6th Cir. 2015) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th

Cir. 2000)).

             Plaintiff argues that neither patients nor their family members filed a grievance or

complaint against her in 2013 or 2014, and that the only written evidence of complaints are notes

made by Meyer in Plaintiff’s employee file that state that certain patients or family members

complained. CCF asserts that it suspended Plaintiff because of an inappropriate interaction with

a patient on July 18, 2014. However, while Plaintiff admitted that the interaction with the patient

happened, she disputes Defendants’ characterization of the incident as her improperly

confronting the patient. Plaintiff’s version involves the patient asking her whether Plaintiff was

in trouble with CCF following the failure to monitor her vital signs, to which Plaintiff answered

in the affirmative. (Lee Dep. R. #33-5 at 265) Plaintiff testified that, “the July 18 incident is just

turned around and fabricated.” (Id. at 268-69) Therefore, because of the divergent accounts, a

factual question remains concerning whether the reason for her suspension was pretextual despite

her admissions.


                                                                                                                                                                               
nurses were similarly situated is a factual question for the jury to decide, just as a jury will have
to determine whether Plaintiff’s refusal to admit wrongdoing was dispositive in her superiors’
decisionmaking. 
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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
        Additionally, a jury must still consider issues concerning Meyer’s comments to Plaintiff

regarding retirement, HR’s failure to investigate any claims of discrimination, the fact that

Meyer suspended Plaintiff, Plaintiff’s replacement by someone outside of her protected class,

and that similarly situated employees were not suspended for possibly similar conduct in order to

make appropriate credibility determinations. Further, the evidence shows that although Plaintiff

was suspended for a specific patient complaint after many alleged patient complaints, there were

no written complaints against Plaintiff in the record. Thus, a question remains as to whether

there was any basis in fact for the actions that led to the suspension and whether Defendants

were motivated to constructively discharge Plaintiff based upon race, national origin, or age

discrimination and not because of any misconduct committed by Plaintiff. Thus, it was improper

for the district court to grant summary judgment in favor of Defendants.3

    2. Retaliation

       “The McDonnell Douglas burden-shifting framework also applies to retaliation claims.”

Martin v. Toledo Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008) (citing Clay v.

United Parcel Serv., Inc., 501 F.3d 695, 713 (6th Cir. 2007)).

               To make out a prima facie case of retaliation, a plaintiff must
               establish that: (1) she engaged in activity protected by Title VII;

                                                       
             3
                 The district court found that even if CCF was incorrect in believing patients had
complained about Plaintiff’s inappropriate behavior, that it was of no moment because of this
court’s “honest belief” doctrine. That is, “as long as an employer has an honest belief in its
proffered nondiscriminatory reason for discharging an employee, the employee cannot establish
that the reason was pretextual simply because it is ultimately shown to be incorrect.” Maben,
630 F. App’x at 443 (quoting Majewski v. Automatic Data Processing, Inc., 247 F.3d 1106, 1117
(6th Cir. 2001)). However, it is disputed whether CCF held an honest belief that patients
complained against Plaintiff and thus whether CCF held an honest belief is a factual question for
the factfinder to decide that rests upon credibility determinations. Defendants may not simply
assert the doctrine to disguise an improperly imposed disciplinary action if the decisionmakers
could not have had that belief at the time of their decision. A jury must decide that the belief
was indeed honest before a determination of liability may be made, and thus summary judgment
was improper.
                                               16
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
               (2) this exercise of protected rights was known to the defendant;
               (3) the defendant thereafter took an adverse employment action
               against the plaintiff; and (4) there was a causal connection between
               the protected activity and the adverse employment action.

Id. (citing Ford v. Gen. Motors Corp., 305 F.3d 545, 552-53 (6th Cir. 2002)). “Once the plaintiff

has made out a prima facie case, the burden of production shifts to the employer to proffer a

legitimate, nondiscriminatory reason for its actions.” Id. (citing Niswander v. Cincinnati Ins.

Co., 529 F.3d 714, 720 (6th Cir. 2008)). “If the employer meets this burden, the burden then

shifts to the plaintiff to demonstrate by a preponderance of the evidence that the legitimate

reason given by the employer was a pretext for retaliation.” Id.

       The district court assumed that Plaintiff engaged in a protected activity, which the

defendants were aware of, but found that there was no adverse employment action. This court

has held that the “burden of establishing a materially adverse employment action is ‘less onerous

in the retaliation context than in the anti-discrimination context.’” Laster v. City of Kalamazoo,

746 F.3d 714, 731 (6th Cir. 2014) (quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d

584, 595-96 (6th Cir. 2007)). “A materially adverse employment action in the retaliation context

consists of any action that ‘well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Michael, 496 F.3d at 596 (quoting Burlington Northern,

548 U.S. at 60).

       The evidence shows that CCF subjected Plaintiff to increased surveillance after making a

complaint of discrimination and that she was suspended without pay and told not to return until

she was called.    A reasonable jury could find that these actions would have dissuaded a

reasonable worker from making or supporting a charge of discrimination.

       The district court did not address the causal connection element of Plaintiff’s prima facie

case of retaliation. However, a reasonable jury could find that Plaintiff established a causal

                                               17
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
connection between her complaints of discrimination and expressed intention to hire a lawyer

and the adverse employment action. “To establish a causal connection, a plaintiff must proffer

evidence sufficient to raise the inference that her protected activity was the likely reason for the

adverse action.” Id. (quoting Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007)). Further,

“in some cases temporal proximity may be sufficient to establish causation.” Hamilton v. Gen.

Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009) (citing Mickey v. Zeidler Tool & Die Co., 516 F.3d

516, 523-26 (6th Cir. 2008)). “In Mickey, we held that where an adverse employment action

occurs very close in time after an employer learns of protected activity, such temporal proximity

between the events is significant enough to constitute evidence of a causal connection for the

purposes of satisfying a prima facie case of retaliation.” Id. (internal alteration and citation

omitted).

       The evidence, viewed in the light most favorable to Plaintiff, establishes that on April 15,

2014, Plaintiff complained of discrimination. This of course was not her only complaint of

discrimination, as her complaints began in 2013 and consistently went uninvestigated.

Nonetheless, on April 30, 2014, she was issued a corrective action and PIP. Defendants argue

that the decision to issue the corrective action and PIP was made prior to Plaintiff’s

discrimination complaint and that no matter what protected activity Plaintiff engaged in,

Defendants would have still taken the corrective action. However, that is a fact question for a

jury to decide.    Further, in Hamilton, this court held that increased surveillance after a

discrimination complaint is sufficient to establish the causal connection element of a prima facie

case of retaliation. Hamilton, 556 F.3d at 436-37. A reasonable jury could find that the close

proximity of the adverse employment action to Plaintiff’s discrimination complaints and the




                                                18
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
uncontroverted allegations of increased surveillance are significant enough to show a prima facie

case of retaliation. Therefore, summary judgment was inappropriate.

       A reasonable jury could find that despite Plaintiff’s admissions to certain misconduct,

Defendants nonetheless retaliated against her, at least in some part, because she complained of

discrimination. Furthermore, other similarly situated employees who CCF disciplined for similar

alleged conduct were not suspended. While the dissent places great weight on CCF’s reasons for

suspending Plaintiff, our standard of review requires viewing the evidence in a light most

favorable to Plaintiff, and only allows the factfinder to make credibility determinations. As the

Supreme Court has stated:

       There are many things sometimes in the conduct of a witness upon the stand, and
       sometimes in the mode in which his answers are drawn from him through the
       questioning of counsel, by which a jury are to be guided in determining the
       weight and credibility of his testimony. That part of every case, such as the one at
       bar, belongs to the jury, who are presumed to be fitted for it by their natural
       intelligence and their practical knowledge . . . and, so long as we have jury trials,
       they should not be disturbed in their possession of it . . . .

       Sartor v. Ark. Nat. Gas Corp., 321 U.S. 620, 628 (1944) (quoting Aetna Life Ins. Co. v.

Ward, 140 U.S. 76, 88 (1891)). Thus, it is for a jury to decide whether CCF’s reasons were not

only honest, but also whether the proffered reasons were really the impetus for the decision to

suspend Plaintiff. Therefore, it was improper for the district court to grant summary judgment in

favor of Defendants.

    3. Aiding and Abetting and State Tort Claims

       The district court found that because Plaintiff’s discrimination and retaliation claims

lacked merit, her claims of negligent retention, supervision, and hiring, intentional infliction of

emotional distress, and aiding and abetting also fail.      However, because the district court




                                                19
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
erroneously granted summary judgment in favor of Defendants, we likewise reverse the

judgment on Plaintiff’s aiding and abetting and state law tort claims.

    4. Denial of Motion to Strike and Motion to Compel

           a. Motion to Strike

       “We review the decision to grant or deny a motion to strike for an abuse of discretion,

and decisions that are reasonable, that is, not arbitrary, will not be overturned.”           Seay v.

Tennessee Valley Authority, 339 F.3d 454, 480 (6th Cir. 2003). Meyer filed a declaration

explaining business records that were kept in the regular course of business and were maintained

in Plaintiff’s employee file. Plaintiff asserted that CCF improperly filed Meyer’s declaration

after her deposition testimony because the declaration contained facts contrary to her deposition

testimony. See Reid v. Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986) (“A party may

not create a factual issue by filing an affidavit, after a motion for summary judgment has been

made, which contradicts her earlier deposition testimony.”)            However, Plaintiff had the

opportunity to address the issue of Meyer’s declaration, which came after Meyer’s deposition

testimony, in her opposition to Defendants’ motion for summary judgment. Plaintiff chose not to

address the issue until two weeks after filing her opposition. The district court found that even if

it considered the motion, it would not be fully briefed until after the final pretrial and trial dates,

to which it already ordered there would be no more extensions. This court has held that “[t]he

timing of trials and docket control are matters best left to the discretion of the trial court.”

Anthony v. BTR Automotive Sealing Systems, Inc., 339 F.3d 506, 517 (6th Cir. 2003). The

district court’s refusal to grant the motion to strike was an exercise in maintaining control of its

docket and was not an abuse of discretion, especially when Plaintiff could have moved to strike

the declaration at an earlier time. Further, Meyer’s declaration is not substantially different from



                                                  20
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
her deposition testimony, where she asserts that Plaintiff had an inappropriate encounter with a

patient.

           Plaintiff also argues that Meyer could not have authenticated the business records

because she was not personally aware of the incidents surrounding them. However, in Peak v.

Kubota Tractor Corp., this court stated that a custodian of records “must simply be familiar with

the company’s recordkeeping practices.” Peak v. Kubota Tractor Corp., 559 F.App’x 517, 522

(6th Cir. 2014) (citing United States v. Weinstock, 153 F.3d 272, 276 (6th Cir. 1998)).

Thereafter, “the proper approach is to admit the evidence and permit the jury to determine the

weight to be given the records.” Id. at 523 (quoting United States v. Hathaway, 798 F.3d 902,

907 (6th Cir. 1986)). Thus, the district court did not abuse its discretion when it admitted the

evidence and denied Plaintiff’s motion to strike.

              b. Motion to Compel

           Lastly, Plaintiff argues that the district court’s partial denial of her motion to compel

prejudiced her in establishing her discrimination claim and allowed the district court to find that

she had not proven a prima facie case of discrimination. “We review a district court’s discovery-

related rulings under the highly deferential abuse-of-discretion standard.” Loyd v. Saint Joseph

Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014). This court “will intervene only if it was an

abuse of discretion resulting in substantial prejudice.” Surles ex rel. Johnson v. Greyhound

Lines, Inc., 474 F.3d 288, 304 (6th Cir. 2007) (internal citation omitted). As we have held,

“district courts have discretion to limit the scope of discovery where the information sought is

overly broad or would prove unduly burdensome to produce.” Id. (citing Fed. R. Civ. P. 26

(b)(2)).




                                                  21
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
       The district court found that production of comparator employee files for all nurses in all

three Meyer-supervised units would be unduly burdensome for Defendants but nonetheless

granted a random sampling of ten percent of the 80 comparator files Plaintiff sought. This was

in addition to her receipt of comparator files for each nurse in her own unit. Plaintiff does not

argue that the district court’s finding that production would be unduly burdensome was

erroneous, but instead argues that the district court prejudiced her case by denying access to

comparator evidence and simultaneously ruling that she lacked evidence of discrimination.

Plaintiff has not established substantial prejudice in the denial of the motion.

                                      III.   CONCLUSION

       For the foregoing reasons, we REVERSE the district court’s summary judgment

decision, AFFIRM the district court’s motion rulings, and REMAND for further proceedings

consistent with this opinion.




                                                 22
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
       McKEAGUE, Circuit Judge, dissenting. I respectfully disagree with the conclusion

that a reasonable jury could find that the Cleveland Clinic Foundation constructively discharged

Farley Lee, let alone terminated her. Likewise, I see no genuine dispute as to whether the Clinic

disciplined Lee because she made vague discrimination complaints rather than due to her own

misconduct. Because Lee has not shown she suffered an adverse action necessary to sustain her

discrimination claims or a genuine dispute over whether the Clinic’s reasons for its actions are a

pretext for unlawful retaliation, I would affirm.

                                                    I

       The majority provides some factual background, but to explain why summary judgment

is proper requires more context. In particular, it requires some knowledge about Lee’s history

with interpersonal problems at work. In August 2013, Lee’s fellow nurses reported to Joselyn

Meyer—Lee’s boss—that Lee had called a patient a “fat pig” and was not acting “like herself.”

Meyer discussed this incident with Lee, who now claims that the other nurses concocted the

story and actually made the “fat pig” comments themselves. Lee concedes, however, that she

called the patient “obnoxious” and left his charts uncompleted. The same month, Lee also

offended a supervisor by accusing her, in an emotionally charged exchange, of trying to

discharge a patient prematurely. Lee acknowledges that she generally received criticism on how

she addressed coworkers.

       In November 2013, the Clinic removed Lee as a patient’s caregiver after the patient’s

wife grew upset over how Lee responded to questions about her husband’s treatment. Notes in

Lee’s personnel file indicate that the wife complained that Lee was rude, talked over her, and cut

her off when she spoke.         The wife was particularly vulnerable as she was receiving




                                                    23
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
chemotherapy treatment herself.1 Lee claims the wife overreacted but confirms that another

nurse reported Lee’s interaction with the woman to the Clinic and “made a big story about it[.]”

R. 33-3, Lee Dep., 121, PID 1545. Meyer spoke with Lee about the conflict the next day to

counsel her on how to handle dissatisfied clients. Meyer’s records say that she warned Lee that

further incidents with patients might lead to a corrective action.2

        Lee’s 2013 performance review, despite saying positive things about Lee, stated that she

came “across as harsh when she interacts with patients and colleagues[.]” R. 33-4. Lee Dep., at

130, PID 1554.      Additionally, she received her lowest ratings for her ability to accept

constructive feedback. Lee acknowledges that coworkers reported her behavior frequently, but

she feels the incidents complained about were “little piddly things[.]” Id. at 131–33, PID 1555–

57.  

        With this background in mind, we come to April 10, 2014, when Lee admits she told a

patient to prearrange her own medication needs with a doctor because Lee did not have the time

to deal with it. Lee sees no problem with how she treated this patient, but a coworker told Meyer

that Lee had been pushy and abrasive. Four days later, Lee almost sent a patient into an

operation without properly preparing an intravenous medicine mixture. Lee then asked the

patient’s family to keep her error “discreet” and placed blame at least partially on a nursing

student. Lee claims that she only wanted to protect the nursing student’s feelings, not to cover up

the incident.   She admits, however, that another nurse reported the incident to the Clinic

differently.



                                                       
             1
                Or perhaps the wife’s mother was receiving chemotherapy. It is unclear. But the point
is the woman was vulnerable.
        2
          When asked to confirm the accuracy of Meyer’s notes on this meeting, Lee did not
dispute them.
                                                 24
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
       The next day, Meyer called Lee into her office to discuss accusations that Lee had been

pushy or abrasive with a patient. Lee says she responded by accusing Meyer of age and race

discrimination. At the end of April, the Clinic’s management issued Lee a corrective action and

put her on a performance plan citing the need for her to improve her interpersonal skills with

patients and coworkers as well as her ability to accept constructive criticism. Presented with this

critique, Lee refused to sign the plan, complained that “she was not appreciated for anything,”

and told her managers that the Clinic focused “on little problems that the patients should not

even be mad about.” R. 33-4, Lee Dep., 179-83, PID 1603-07.

       On July 14, 2014, while under her performance plan, Lee was responsible for monitoring

a patient with an abdominal aortic aneurysm. If such an aneurysm were to rupture, the patient

must undergo an emergency surgery which only twenty percent of patients survive.3 Due to the

potential risks posed by aortic aneurysms, nurses caring for a patient with this condition must

monitor the patient’s blood pressure closely. As Lee knew from her training, the Clinic required

nurses to notify a doctor immediately if the blood pressure rose above a certain level. At around

10:00 a.m., Lee recognized that her patient registered above this critical point, yet she only

reached a doctor about three hours later. Lee blames a secretary for the error.

       On Friday, July 18, the Clinic issued Lee a second corrective action, citing this incident

and yet another from April where she had mismanaged lab results. She refused to sign this

corrective action as well. Lee then undisputedly discussed her discipline with the very aneurysm

patient to whom she provided substandard care, telling the patient that she may be terminated for

the incident. After the Clinic heard reports that Lee confronted the patient, Meyer suspended


                                                       
             3
                 A.D.A.M. Medical Encyclopedia [Internet]. Atlanta (GA): A.D.A.M., Inc.; ©2016.
Abdominal Aortic Aneurysm; reviewed 2015 Aug 13; page last updated 12/02/2016. Available
from: https://medlineplus.gov/ency/article/000162.htm
                                                25
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
Lee for three days pending an investigation. Before Lee served any of her suspension, she

resigned.

                                                   II

        My first disagreement with the majority lies with its decision to resurrect Lee’s

discrimination claims. Under both Title VII and the ADEA, Lee must show that she suffered an

“adverse employment action.” Mensah v. Michigan Dep't of Corr., 621 F. App’x 332, 334 (6th

Cir. 2015) (citations and quotation marks omitted); see Mitchell v. Vanderbilt Univ., 389 F.3d

177, 182 (6th Cir. 2004). That is, some action by her employer that constitutes “a materially

adverse change in the terms of” her employment. Kocsis v. Multi-Care Management Inc.,

97 F.3d 876, 885 (6th Cir. 1996). Events like “[t]ermination, decrease in wage or salary, change

in title, diminished material responsibilities, or a material loss of benefits” all count. Id.

        The majority sees two possible adverse actions here. First, it thinks a jury could find that

Meyer fired Lee. Second, it believes a jury could find that the Clinic intentionally created a

harassing environment to force Lee out. The evidence supports neither theory.

                                                   A
        To start, the majority unreasonably construes unambiguous facts to find a dispute as to

whether the Clinic terminated Lee. Maj. Op. at 9. For the majority, a dispute apparently arises

because Lee characterized Meyer as saying “Never come back to work again until I call for you,"

or "Don't make yourself known in the CCF main campus or go to your locker ever.” R. 35-5,

284, PID 1750. Our question on summary judgment, however, is not whether an isolated phrase

from a deposition supports an argument when presented without context. Instead, we ask

whether a plaintiff produced sufficient evidence to permit a reasonable jury to find for her on a

claim’s element. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (holding that

there is no genuine issue “for trial unless there is sufficient evidence favoring the nonmoving

                                                  26
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
party for a jury to return a verdict for that party”) (citations omitted). Here, Meyer undisputedly

prefaced her comments with an unequivocal statement that Lee was suspended for three days

pending an investigation.4 Further, Lee undisputedly sent the Clinic a signed resignation letter

after this conversation.

       A termination is not a premonition or a subjective feeling that an employee gets from an

interaction with her supervisor. Rather, it is a discrete event that ends a legal relationship.

See Termination of Employment, Black’s Law Dictionary (10th ed. 2014) (“The complete

severance of an employer-employee relationship.”). To terminate the relationship, a party must

manifest its intent in a way that an objective listener would understand as ending that

relationship. Cf. Barbara T. Lindemann, Paul Grossman & C. Geoffrey Weirich, Employment

Discrimination Law 21.IV.A (Bloomberg BNA, 5th ed. 2012) (“Normally, it is obvious whether

a discharge has occurred: Has the employer affirmatively extinguished the employment

relationship, or not?”). Lee must present sufficient evidence to permit a reasonable jury to find

Meyer manifested an intent to affirmatively extinguish and completely sever Lee’s relationship

with the Clinic.

       Lee simply has not presented such evidence. We do not need to resolve a he-said, she-

said dispute to see the answer here. Meyer undisputedly told Lee that she was suspended for

three days pending a full investigation. The Clinic’s internal emails even refer to Lee as

“suspended.” It would be truly odd to find that Meyer, despite her use of the word “suspended,”

nevertheless objectively manifested an intent to “completely sever” the employment relationship.

No reasonable person could make that inference.

                                                       
             4
                It requires no impermissible inferences, only common sense, to understand the import
of any comment Meyer made about “never” returning to the campus in this context. Any
troublemaker suspended from school is routinely subject to the same kind of restriction during
their suspension.
                                                27
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
          In fact, there is no evidence anyone actually drew that inference. Lee did not. She

undisputedly sent the Clinic a signed resignation letter that purported to be effective the day

before her suspension started—bizarre behavior for someone who thought herself “fired.”

Tellingly, even the majority exposes how contrived this “dispute” is, as it cannot help but refer to

Lee as having “resigned” throughout its opinion. See Maj Op. at 4, 12, 13. Lee’s testimony

arguably supports—at most—that she had a subjective belief about future termination. But the

word “reasonable” loses all meaning when the majority asserts that a “reasonable” jury could

infer that Meyer terminated Lee.

                                                 B

          Perhaps hardly expecting that the court would buy her actual-termination argument given

that she sent the Clinic a signed resignation letter, Lee also contends that the Clinic

constructively discharged her. She relies on two strands of constructive-discharge case law for

alternative arguments.     The first strand she misconstrues, and the second sets a bar for

mistreatment that she simply cannot meet on the facts presented. The district court correctly

found that no genuine dispute exists in relation to either argument.

          Lee first says that because she “reasonably believed” her suspension would end in

termination, the Clinic constructively discharged her. She points to case law saying that a

constructive discharge could have occurred where a plaintiff resigned with “the understanding

that he did not have the option of continued employment.” See Scott v. Goodyear Tire & Rubber

Co., 160 F.3d 1121, 1128 (6th Cir. 1998). That is, “when the employee reasonably believed his

termination to be imminent.” Harris v. Butler Cty., Ohio ex rel. its Sheriff’s Dep’t, 344 F. App’x

195, 199 (6th Cir. 2009) (describing Ford v. Gen. Motors Corp., 305 F.3d 545, 554 (6th Cir.

2002)).



                                                28
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
        But as with her actual-termination argument, Lee merely presents quotes without context.

We have used these constructive-discharge formulations she cites in cases where an employer

pushes financial pressure points to coerce an employee into retiring. See Scott, 160 F.3d at 1127

(finding that a constructive discharge would occur if a company coerced an employee to retire by

offering him either (1) voluntary retirement with benefits, a lump sum, and retirement payments

or (2) an involuntary lay off without benefits and an only illusory chance to be rehired); Ford,

305 F.3d at 554 (holding that where a plaintiff faced an escalating disciplinary campaign and

heard he would be fired if he “sneezed,” the company could foresee he would retire to keep his

pension).

        These cases comport with the general understanding that a constructive discharge occurs

when an employer intentionally makes work “intolerable.” See Wright v. Illinois Dep’t of

Children & Family Servs., 798 F.3d 513, 528–29 (7th Cir. 2015) (comparing and contrasting

Seventh Circuit cases under an analogous strand of constructive-discharge case law). But “a

working condition does not become intolerable or unbearable merely because a ‘prospect of

discharge lurks in the background.’” Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673, 679 (7th

Cir. 2010) (quoting Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333 (7th Cir. 2004)). And

Lee has not presented any evidence of a financially coercive scheme that made quitting

profitable for her.

        Instead, Lee wants these cases to say that she could quit because she felt that her

discipline was a farce that would inevitably lead to her termination. The case law, however,

rejects the proposition that an employee can short circuit an employer’s disciplinary procedures

and then litigate whether the outcome would have been preordained. See Agnew v. BASF Corp.,

286 F.3d 307, 310 (6th Cir. 2002) (rejecting the argument that “termination would have been the



                                               29
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
inevitable result” of a performance plan); Cigan, 388 F.3d at 333–34 (rejecting the argument that

“a notice of intent to commence a process leading to discharge may be treated, at the employee’s

election, as a completed discharge”). As the Seventh Circuit explained in rejecting an argument

like Lee’s, “[t]he only way to know how matters will turn out is to let the process run its course.”

Cigan, 388 F.3d at 333. Litigation where parties speculate over what may have happened is a

poor substitute for the employer’s actual processes and a concrete decision. See id. at 333–34.

       The majority’s analysis on Lee’s other purported adverse actions seems instructive on

this point too. The majority correctly concludes that Lee cannot rely on an unpaid suspension

that she never served to show an adverse action. Maj. Op. at 13. And it reaches this result by

citing the principle that an employee “is obliged not to assume the worst, and not to jump to

conclusions too fast.” Id. (citing Agnew, 286 F.3d at 310 (quoting Garner v. Wal-Mart Stores,

Inc., 807 F.2d 1536, 1539 (11th Cir. 1987)). Then, it observes that in this instance Lee “resigned

before she could serve the suspension.” Maj. Op. at 13 (emphasis added).

       The same reasoning applies to Lee’s constructive-discharge argument. Lee admits that

Meyer told her she was suspended pending investigation of reports that Lee confronted the

aneurysm patient about Lee’s second corrective action. Lee did not have the option to quit and

then litigate whether the Clinic would have ignored an investigation that could have potentially

exonerated her. Allowing her to do so is to endorse unbridled speculation.

       With respect to the second strand of cases, Lee’s facts simply do not show the level of

mistreatment necessary to qualify as a constructive discharge. “To demonstrate a constructive

discharge, the plaintiff must show that (1) the employer deliberately created intolerable working

conditions, as perceived by a reasonable person; (2) the employer did so with the intention of

forcing the employee to quit; and (3) the employee actually quit.” Hurtt v. Int’l Servs., Inc.,



                                                30
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
627 F. App’x 414, 420 (6th Cir. 2015). We look to various factors to establish whether a

reasonable person felt compelled to resign. See Logan v. Denny’s, Inc., 259 F.3d 558, 569 (6th

Cir. 2001) (“(1) demotion, (2) reduction in salary, (3) reduction in job responsibilities,

(4) reassignment to menial or degrading work, (5) reassignment to work under a younger

supervisor, (6) badgering, harassment, or humiliation by the employer calculated to encourage

the employee’s resignation, or (7) offers of early retirement or continued employment on terms

less favorable than the employee's former status”) (citation omitted).

       Contrary to the majority’s analysis, the comments excerpted in Logan do not set some

“offensiveness threshold” that makes harassing comments actionable as a constructive discharge.

See Maj. Op. at 11. To start, the employee in Logan allegedly faced more than comments—her

employer allegedly demoted her, reduced her salary, and reassigned her to demeaning work after

beckoning her to the office with a fake assignment meant to mock her. See generally Logan,

259 F.3d 558. Moreover, the employee in Logan faced multiple racially abusive incidents over a

two-month stint in her new location with a company that the court deemed notoriously abusive.

See generally id.

       Rather than asking whether coworkers’ statements meet some Logan threshold, the

proper threshold question in a constructive discharge case based on harassment is whether the

plaintiff has shown mistreatment that rises to the level of a hostile work environment.

See Pennsylvania State Police v. Suders, 542 U.S. 129, 146–47 (2004). In Suders, the Supreme

Court analyzed a claim that coworkers’ harassment and hostility subjected an employee to a

constructive discharge. Id. It noted that for an “atmosphere of sexual harassment or hostility to

be actionable” alone, “the offending behavior must . . . alter the conditions of the victim’s

employment and create an abusive working environment.” Id. (citations and quotation marks



                                                31
 
No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
omitted).   Then, the Court added that a constructive discharge claim based on harassment

“entails something more” than even a hostile-work environment claim: “working conditions so

intolerable that a reasonable person would have felt compelled to resign.” Id.

       Thus, if a jury could not find that Lee was subject to a hostile work environment, then it

could not find that she suffered a constructive discharge, as the majority contends, based on

harassment. See id. To be actionable as a hostile work environment claim, harassment must be

“severe” and “pervasive.” Ault v. Oberlin Coll., 620 F. App’x 395, 400 (6th Cir. 2015). To

determine whether treatment qualifies as severe or pervasive, courts “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.” Id. (citations and quotation marks omitted).

As indicated by the terms “severe” or “pervasive,” this requires a plaintiff to show serious

mistreatment. See, e.g., Williams v. CSX Transp. Co., 643 F.3d 502, 506 (6th Cir. 2011) (holding

that a supervisor’s isolated comments, while “insensitive, ignorant, and bigoted,” did not create a

hostile work environment); Armstrong v. Whirlpool Corp., 363 Fed. App’x 317, 327 (6th

Cir.2010) (holding that even multiple incidents of “alleged serious racial discrimination” failed

to “alter the conditions” of plaintiff’s employment).

       Here, Lee alleges that Meyer asked her about retirement twice and mentioned her father’s

retirement—hardly “pervasive” or “severe” harassment. She alleges that a nurse named “Jamie

Jameson” once made juvenile, offensive remarks that Lee reported and that younger nurses

called her names which she appears to have never reported.5 The alleged comments, while

offensive, lack either the severity or pervasiveness necessary to constitute a hostile work

                                                       
             5
                 The Clinic says it could not find any employee by the name Jamie Jameson in its
records.
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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
environment. Moreover, the circumstances do not permit an inference that the Clinic permitted

an “intolerable” environment with the intent to force Lee out. At best, the evidence would

support a finding that the Clinic responded poorly to comments from “Jamie Jameson.” It could

not sustain a finding that the Clinic constructively discharged Lee.

                                                III

       On her retaliation claims, Lee has advanced insufficient evidence to create a genuine

dispute as to whether the Clinic disciplined Lee because of her discrimination complaints. Lee

can point to three disciplinary actions after she complained about discrimination: (1) she was

subject to a performance plan and received a corrective action; (2) she received a second

corrective action; and (3) she received a suspension. For the first incident, the Clinic cites Lee’s

abrasive treatment of patients and her inability to accept criticism. For the second, it points to

her failure to monitor a patient with a serious condition. And for the third, it says it wanted to

investigate whether she confronted a patient about her discipline.

       To show pretext, Lee can show that the proffered reasons “(1) have no basis in fact,

(2) did not actually motivate the defendant’s challenged conduct, or (3) [were] insufficient to

warrant the challenged conduct.” Maben v. Southwestern Med. Clinic, 630 F. App’x 438, 443

(6th Cir. 2015) (quoting Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000)). But a

retaliation case is “not a vehicle for litigating the accuracy of the employer’s grounds” for

discipline. Tingle v. Arbors at Hilliard, 692 F.3d 523, 530 (6th Cir. 2012). To show pretext, Lee

must “offer some evidence that not only were the employer’s reasons false, but that retaliation

was the real reason for the adverse action.” Id. An employer with an honest belief in its reason

for discipline, even when ultimately mistaken, is entitled to summary judgment when its belief is




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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
based on particularized facts. Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598–99

(6th Cir. 2007).

       Here, Lee admits to misconduct justifying her discipline. Even when she says that the

conduct is mischaracterized, she admits others perceived the incidents differently and reported

them. With respect to her performance plan, Lee agrees that the incidents the Clinic cites

happened. Lee did tell a patient that she should have taken care of her medicine herself and that

Lee did not have the time. She also concedes that a fellow nurse reported this interaction to

Meyer and described Lee as being “abrasive” and “pushy.” Further, she admits to a tense

exchange with a patient’s family four days later in which they accused her of blaming her errors

on a nursing student. After this, she admits to asking them to keep the error “discreet” and that a

fellow employee tattled on her. Whether a jury might have believed her story that she actually

acted prudently in each instance seems irrelevant. She confirms the statements the Clinic heard

about, and the perception others had about these interactions. The Clinic had information that

gave it legitimate concerns about her behavior.

       That the Clinic issued this performance plan to Lee after her discrimination complaint to

Meyer and the Clinic’s human resource department creates no genuine dispute here. Proximity

means little when an employee levels the accusation in response to potential discipline. See, e.g.,

Beard v. AAA of Michigan, 593 F. App’x 447, 451 (6th Cir. 2014) (“An employee cannot allege

discrimination like a protective amulet when faced with the possibility that his preexisting

disciplinary problems could lead to his termination”); Hervey v. County of Koochiching,

527 F.3d 711, 723 (8th Cir. 2008) (“Insubordinate employees may not insulate themselves from

discipline by announcing an intention to claim discrimination just before the employer takes

action.”).    Lee undisputedly levelled her accusations after being asked by Meyer to discuss



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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
reports that she was pushy and abrasive with a patient. And this came after Meyer had already

discussed Lee s behavior with her in November and warned that she might issue Lee a corrective

action in the future.

        Moreover, the thrust of the Clinic’s concerns—Lee’s interpersonal skills with patients

and coworkers and inability to accept criticism—hardly seem like contrivances. In fact, the

record shows a common theme running through every incident where Lee faced discipline. Lee

even responded to the criticism in her performance plan by telling the Clinic that she “wasn’t

appreciated for anything” and that management cared about things that patients “should not even

be mad about.”

        As to the second supposedly retaliatory act, the second corrective action, Lee likewise

shows no evidence undercutting the Clinic’s honest belief in its reasons or showing them to be

pretextual.   Lee admits that she failed to alert a doctor to the aneurysm patient on time.

Consistent with the criticism in her performance plan, Lee deflects blame to this day and shifts

responsibility for the incident on to a secretary. The second corrective action was precipitated by

undisputed facts and seems wholly warranted given the error’s gravity and Lee’s earlier

placement on a performance plan.

        The last allegedly retaliatory incident adds little for Lee’s case. She admits that she

discussed her discipline with the patient. She concedes that she told the patient that she thought

she might be terminated over the incident. Whether the patient initiated this contact with Lee or,

as Lee claims, actually offered Lee moral support matters little. The Clinic had reports that Lee

aired her grievances to the patient and suspended her to investigate whether she actually did.

The Clinic undisputedly had a basis to investigate this incident.




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No. 16-309, Lee v. Cleveland Clinic Foundation, et al.
 
       Finally, Lee’s comparator evidence affords little support for a finding that the Clinic’s

stated concerns were merely a pretext for unlawful retaliation. As the district court found, Lee

faced discipline similar to that imposed on her supposed comparators. See Lee v. The Cleveland

Clinic Found., No. 1:15 CV 91, 2016 WL 29226, at *10 (N.D. Ohio Jan. 4, 2016). And no

comparators presented the sort of persistent problems with their bedside manner or the insolence

when confronted with their problems that Lee displayed. Giver her track record, it comes as no

surprise, and seems entirely reasonably, that Lee’s discipline continued to escalate. I see no

genuine dispute as to whether the Clinic meant to punish her for conclusory discrimination

complaints.

                                              IV

       Although the majority aims to apply the summary-judgment standard evenhandedly, it

ends up merely accepting that genuine disputes exist because Lee claims they do. As a result,

Lee is permitted to invoke the federal judicial machinery to pursue her various workplace

grievances based on pure speculation that her age, race, or any protected activity was a

motivating factor. I dissent.




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