                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0515n.06

                                              Case No. 14-2401

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                                 FILED
                                                                                          Jul 21, 2015
TRICIA BASCH,                                               )                        DEBORAH S. HUNT, Clerk
                                                            )
        Plaintiff-Appellant,                                )
                                                            )        ON APPEAL FROM THE UNITED
v.                                                          )        STATES DISTRICT COURT FOR
                                                            )        THE WESTERN DISTRICT OF
KNOLL, INC.,                                                )        MICHIGAN
                                                            )
        Defendant-Appellee.                                 )
                                                            )
                                                            )

        BEFORE: CLAY and SUTTON, Circuit Judges; WATSON, District Judge.*

        SUTTON, Circuit Judge. After employing Tricia Basch for over a decade, Knoll, Inc., a

furniture maker, discharged her. Basch filed this lawsuit, raising several employment-related

grievances against Knoll. The district court granted Knoll’s motion for summary judgment on

all of Basch’s claims. Basch challenges one ruling on appeal: the district court’s rejection of her

retaliation claim under the Family Medical Leave Act (FMLA). We affirm.

        Basch held various jobs at Knoll during her time there. She took various approved leaves

under the FMLA during her time there. And she was warned and disciplined for various issues,

including absenteeism, aggressive behavior, and insubordination during her time there.




        *
          The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting
by designation.
Case No. 14-2401
Tricia Basch v. Knoll, Inc.
       At the time of the discharge, Basch worked as a coordinator in the “paint lines”

department. R. 59 at 1. Her primary duty was “kitting”—organizing paint orders into baskets to

prepare them for painting. R. 40-1 at 4, 9. On November 9, 2011, she delivered a kitted basket

to a co-worker, who rejected the basket because it was arranged incorrectly. The co-worker took

the issue to Basch’s supervisor, Kristie Walker. Raising her voice, Walker told Basch to re-kit

the basket. Without re-kitting the basket, Basch walked away and attempted to call two other

managers over the next several minutes while Walker repeatedly told her to re-kit the basket.

Basch never did so.

       Faced with Basch’s continued refusal, Walker took Basch to the human resources

department and asked for assistance from other managers. One manager told Basch that she

needed to do what she was told. Basch, who still had not made any effort to re-kit the basket,

asked to take FMLA leave due to stress (triggered by her encounter with Walker). The plant’s

human resources manager told Basch that she could not take leave because she was being

suspended. Two days later, the company discharged Basch.

       Basch filed this lawsuit, bringing nine claims under a variety of laws: the Americans

with Disabilities Act, the FMLA, Title VII, and Michigan state law. The district court granted

summary judgment to Knoll across the board. Basch v. Knoll, Inc., No. 1:13-CV-76, 2014 WL

911865, at *1 (W.D. Mich. Mar. 10, 2014). Basch appeals only the FMLA claim. We review

afresh a district court’s grant of summary judgment, Int’l Union v. Cummins, Inc., 434 F.3d 478,

483 (6th Cir. 2006), asking whether Knoll is entitled to judgment as a matter of law because “no

genuine dispute as to any material fact” stands in the way, even after giving Basch the benefit of

all reasonable inferences from the record. Fed. R. Civ. P. 56(a).




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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
       As relevant here, the FMLA says that “[i]t shall be unlawful for any employer to

discharge . . . any individual for opposing any practice made unlawful by this subchapter.”

29 U.S.C. § 2615(a)(2). Basch claims she was fired for trying to take FMLA leave “[b]ecause of

a serious health condition that ma[de] [her] unable to perform the functions of [her] position.”

29 U.S.C. § 2612(a)(1)(D). A burden-shifting test applies to such claims. Edgar v. JAC Prods.,

Inc., 443 F.3d 501, 508 (6th Cir. 2006); see McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Under that familiar test, Basch first must make out a prima facie case of retaliation.

Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). If she does so, Knoll

must articulate a legitimate, nondiscriminatory reason for the alleged retaliatory act. Id. And if

the company gives such a reason, the employee must show that the employer’s rationale is

pretextual. Id.

       Like the district court before us, we conclude that Basch has not met her burden in the

first and last part of the analysis. She did not make out a prima facie case of retaliation, and she

did not show that Knoll’s rationale for discharge (insubordination) is pretextual.

       Prima facie case. In order to make out a prima facie case of retaliation, Basch must

show: (1) that she “availed herself of a protected right under the FMLA”; (2) that she “suffered

an adverse employment action”; and (3) “that there was a causal connection between the exercise

of her rights under the FMLA and the adverse employment action.” Edgar, 443 F.3d at 508. At

a minimum, she comes up short on causation.

       She has not shown a causal connection between the exercise of her FMLA rights and the

termination of her employment. Even if we assume for the sake of argument that temporal

proximity (between a protected act and an adverse action) by itself may establish causation at the

prima facie phase of a case, that could only be “[w]here an adverse employment action occurs



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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
very close in time after an employer learns of a protected activity.” Mickey v. Zeidler Tool &

Die Co., 516 F.3d 516, 525 (6th Cir. 2008). That did not happen here.

       Any such claim of proximity would look to one or the other of the certifications for

intermittent leave (May 2009 and May 2011), as that was when the series of FMLA events began

and when Knoll “learn[ed] of [the] protected activity.” Id. (emphasis added). When “some

time”—here, two-and-a-half years or six months—“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.” Id. Basch

has no such “other evidence.” Knoll repeatedly granted Basch’s FMLA requests over a period of

two-and-a-half years. And Basch provides no additional evidence that Knoll discharged her

because she declared an intent to take FMLA leave on November 9th. In the absence of a

cognizable claim of causation, her prima facie case must fail.

       Pretext. Also unavailing is her claim of pretext. After Knoll offered a legitimate,

nondiscriminatory rationale for discharging Basch—“insubordinat[ion] to [her] supervisor” and a

“prior history of insubordination,” R. 34-2 at 2—Basch was required to show that these

explanations were pretextual. She failed to do so.

       Basch could show that Knoll’s insubordination rationale was pretextual in one of three

ways: that it “(1) ha[d] no basis in fact; (2) did not actually motivate the action; or (3) w[as]

insufficient to warrant the action.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th

Cir. 2012). As to the first possibility, she did not demonstrate that Knoll’s reason for discharging

her had no basis in fact. Mike Sale, the highest authority at the plant, made the discharge

decision based on discussions with management staff who informed him of the November 9th

incident. R. 34-1 at 2–3. Sale was concerned that such insubordination “could . . . idle 15 or



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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
more employees for a period of time”—a fair basis in fact for discharging Basch. Id. at 2.

Basch’s disciplinary history also provided grounds for discharge. Id. at 3. Some highlights of

that history include: insubordination (for which she received a written warning), R. 33-3 at 2;

“abusive, aggressive, threatening and inappropriate” behavior (for which she was suspended for

three days), R. 32-4 at 2; and absenteeism twice in one month (for which she received two

warnings), R. 32-5 at 2; R. 33-1 at 2.

       As to the second possibility, Basch failed to demonstrate that something other than

insubordination motivated the discharge. Basch points to her FMLA status and the proximity of

her FMLA claims to her termination. But even if we accept for the sake of argument that

temporal proximity could establish a prima facie case, it “cannot be the sole basis for finding

pretext.” Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012).

       As to the third possibility, Basch failed to show that her insubordination was insufficient

to warrant her discharge. Under Knoll’s rules of conduct, “[i]nsubordination, including failure to

carry out definite instructions or assignments” is an activity that is considered “extremely serious

misconduct [that] may result in immediate discharge.” R. 32-2 at 2. Insubordination alone thus

could rightly lead to a discharge.

       Attempting to fend off this conclusion, Basch raises several contrary arguments. First, in

support of her prima facie case, she argues that proximity in time between her discharge and her

use of FMLA leave establishes causation. More specifically, she contends that the proper

measure of proximity is two days—the time between her final request for FMLA leave and her

discharge. Appellant’s Br. 16. But that is the wrong yardstick. Knoll did not “learn[] of [her]

protected activity,” Mickey, 516 F.3d at 525, on November 9th. Her employer knew that Basch




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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
had FMLA intermittent leave certification and had used it to take leave over the past several

years.

         Second, Basch submits that three months—from her August 2011 week of leave to her

November 2011 discharge—is the proper measure of proximity for purposes of her prima facie

case. Even if we accepted Basch’s timeline, our conclusion would remain the same. Absent

other evidence, three months does not suffice to support a finding of causation. See Mickey, 516

F.3d at 525. Basch cites no case to the contrary in the FMLA context.

         Third, Basch contends that three other incidents support her prima facie claim of

causation. But her version of these events does not “present[] a sufficient disagreement to

require submission to a jury,” and the evidence is “so one-sided” that we must uphold the district

court’s grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52

(1986). She first cites her own statement that “FMLA people [at Knoll] . . . were getting fired

left and right for being on FMLA.” Appellant’s Br. 21; R. 40-1 at 29. But Basch’s own

generalization—absent any corroborating evidence or promise to present it—does not suffice to

survive summary judgment. See Anderson, 477 U.S. at 249.

         She adds that Kristie Walker, her supervisor, created a “retaliatory atmosphere” through

various acts. Appellant’s Br. 21. But even if Walker was antagonistic toward Basch, that does

not establish causation between the decision to discharge Basch (made by Mike Sale) and

Basch’s repeated exercise of FMLA rights over a two-and-a-half year period.

         Basch adds that Walker used an evaluation form, R. 42-2 at 2, to harass her due to her use

of FMLA leave. Appellant’s Br. 22. This, too, does not work. In her deposition, Basch

indicated that Walker and another manager used the evaluation form to alert Basch to some




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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
necessary areas of improvement, that Basch improved in those areas, and that no further mention

was made of the evaluation. R. 40-1 at 37–38.

       Fourth, Basch argues that the given reason for her discharge—insubordination—was

pretextual. She claims that she never refused to re-kit the basket, she told Walker that she was

going to do it, and testimony from another co-worker indicates that the incident was “not an

instance of extremely serious misconduct.”        Appellant’s Br. 24 (internal quotation marks

omitted). These assertions do not establish pretext. The problem is, Basch does not contest two

critical facts: (1) that Walker told her to re-kit the basket multiple times, and (2) that she never

did so (even if she planned to do so sometime in the future). R. 40-1 at 38–40. That suffices for

a discharge under Knoll’s regulations because it is a “failure to carry out definite instructions or

assignments.” R. 32-2 at 2. Because Basch does not dispute Sale’s view that her disruption had

the potential to force fifteen other employees to stand idle, R. 34-1 at 2, the incident obviously

could have serious consequences.

       For these reasons, we affirm.




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