               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0383n.06
                            Filed: May 31, 2006

                                          No. 05-3370

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


SUSAN MYERS,                           )
                                       )
      Plaintiff-Appellant,             )                ON APPEAL FROM THE
                                       )                UNITED STATES DISTRICT
v.                                     )                COURT FOR THE NORTHERN
                                       )                DISTRICT OF OHIO
CUYAHOGA COUNTY, OHIO et al.,          )
                                       )                        OPINION
      Defendants-Appellees.            )
_______________________________________)


Before: MOORE, GRIFFIN, and CUDAHY,* Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Susan Myers (“Myers”)

brought this lawsuit against Defendants-Appellees Cuyahoga County, the Cuyahoga County Board

of Commissioners, Elsie Caraballo, and Luis Vazquez (referred to collectively as “Cuyahoga

County” or “the County”), claiming that Cuyahoga County failed to make reasonable

accommodations as required by the Americans with Disabilities Act (“ADA”) and terminated her

because of her race and sex in violation of Title VII, 42 U.S.C. § 1983, and the Ohio Revised Code

§ 4112. Myers alleges that Cuyahoga County failed to provide reasonable accommodation for her

Adjustment Disorder and terminated her because she is white and a transsexual person. The district

court concluded that Myers had failed to establish any genuine issues of material fact on her



       *
         The Honorable Richard D. Cudahy, United States Court of Appeals for the Seventh Circuit,
sitting by designation.
discrimination claims or her § 1983 claim, and granted summary judgment to Cuyahoga County.

Myers now appeals the dismissal of her ADA and Title VII claims. For the reasons explained

below, we AFFIRM the district court’s grant of summary judgment to Cuyahoga County.

                                 I. FACTS AND PROCEDURE

       Myers is a white transsexual woman who began working for the Cuyahoga County

Department of Health and Human Services in 1982. At the time of her termination in April 2000,

Myers was working for the Cuyahoga County Work and Training Agency as a Team Leader/Social

Service Supervisor. Myers worked for Cuyahoga County for over sixteen years without any

disciplinary problems or incidents. In July 1998, Myers unsuccessfully competed for a promotion

to a supervisory role; appellee Elsie Caraballo, a Hispanic woman, was awarded that promotion.

Caraballo became Myers’s direct supervisor, and appellee Luis Vazquez, a Hispanic man, was

Caraballo’s direct supervisor. At that point, Myers’s relationship with Caraballo began to

deteriorate, and tensions between the two women increased. Myers alleges that after Caraballo

became her supervisor, “Carabello, aided by Vazquez, began systematically working to

constructively discharge Plaintiff by pretextually finding fault with Plaintiff’s work, and

intentionally maintaining Plaintiff in an artificially and unnecessarily stressful work environment.”

Joint Appendix (“J.A.”) at 22 (Compl. at ¶ 4). Myers claims that Caraballo and Vazquez disliked

her because she was not Hispanic and did not speak Spanish and because as a transsexual woman,

she did not conform to their “gender/sex stereotyped expectations.” Appellant Br. at 11.

       Cuyahoga County denies these allegations, and responds that Myers was terminated for

“failure of good behavior and discourteous treatment to the public” after Myers committed many

serious disciplinary offenses during the months prior to her removal. J.A. at 374 (Order of Removal


                                                 2
at 1) (capitalization removed). The County claims that Myers committed twelve “racial and

inappropriate acts that are violations of Section 4.0 of the Cuyahoga County Policies and Procedures

Manual” between September 17, 1998 and November 23, 1999. J.A. at 374-76 (Order of Removal

at 1-3). The County alleges that on numerous occasions, Myers was rude and unprofessional to

clients and co-workers, that she made derisive comments about Hispanic and Spanish-speaking

people and poor people receiving public benefits, and that she inappropriately expressed her

opinions about the personal life choices of her clients. On August 13, 1999, Appellee Caraballo

issued Myers a written reprimand for “argumentative and resistant behavior” allegedly occurring

on May 13, 1999, and June 16, 1999. J.A. at 396 (Aug. 13, 1999 Written Reprimand). Cuyahoga

County claims that Myers also failed to complete necessary job assignments, for which Myers was

given a written reprimand for neglect of duty on August 16, 1999. The County conducted two pre-

disciplinary conferences to consider Myers’s alleged infractions in August and December of 1999,

and Myers attended and participated in these conferences. Cuyahoga County claims that during

these conferences, Myers did not refute her actions in the incidents, but rather blamed her clients and

co-workers for the conflicts. Myers was placed on administrative leave after the December 1999

conference, and on April 18, 2000, the Board of Cuyahoga County Commissioners ordered her

removal effective April 29, 2000.

       Myers first filed suit against Cuyahoga County in January 2003 alleging that the County

illegally discriminated against her on the basis of disability, race, and sex, but that case was

dismissed without prejudice for want of prosecution. J.A. at 14 (Oct. 6, 2003 Order). Myers refiled

those same claims in this case on March 23, 2004, and Cuyahoga County filed its answer on May

18, 2004. Myers did not conduct any discovery. Cuyahoga County deposed Myers and Father


                                                  3
Howard Ziemba, a Catholic Priest, who had written a letter on Myers’s behalf. Father Ziemba, a

former co-worker and friend of Myers, knew Myers from when Ziemba worked as a work and

training coach for Cuyahoga County from sometime in 1994 through January of 2000. The County

filed a motion for summary judgment on December 13, 2004, and Myers filed a brief in opposition

and a motion to amend her complaint to conform to the evidence on January 13, 2005. On February

8, 2005, the district court granted Myers’s motion to amend as well as Cuyahoga County’s motion

for summary judgment. The district court concluded that Myers had failed to show that she is a

person with a disability and had not established a prima facie case of race or sex discrimination. The

district court also granted summary judgment to Cuyahoga County on Myers’s § 1983 due process

claim, but Myers has not appealed the dismissal of that claim. Myers filed a timely notice of appeal.

                                          II. ANALYSIS

       Granting summary judgment to a party is appropriate “if the pleadings, depositions, answers

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

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

of law.” FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

moving party bears the burden of showing the absence of any genuine issues of material fact, after

which the burden then shifts to the nonmoving party to produce evidence demonstrating that a

genuine issue remains. Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). The court

must believe the evidence presented by the nonmoving party, and draw all justifiable inferences in

its favor. Id. The party opposing summary judgment must, however, “do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Summary judgment is proper when the nonmoving party


                                                  4
has had adequate time for discovery and yet “fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on which that party will bear the burden

of proof at trial.” Celotex, 477 U.S. at 322.

A. Myers’s Disability-Discrimination Claim

           Myers originally alleged that she was disabled by depression and that Cuyahoga County

failed to make a reasonable accommodation by refusing to grant her a job transfer to a different

position with the Department of Health and Human Services. Myers requested to be transferred to

another location three times — in the fall of 1998, March or April 1999, and November 1999 — but

did not state that her requests for a transfer were related to her depression. J.A. at 244-45 (Myers

Dep. at 114-15).1 In its motion for summary judgment, Cuyahoga County argued that it was entitled

to judgment as a matter of law on Myers’s disability claim, because two written statements from

Myers’s own doctors stated in June 1999 that Myers was not suffering from depression and was able

to work. One of Myers’s treating physicians stated that she “has no medical condition that would

render her unable to work,” J.A. at 456 (Allsop Letter), and the physician who was treating her for

depression stated that Myers’s depressive symptoms were “well-controlled with medication” and

that Myers “should be able to tolerate usual levels of job-related stresses.” J.A. at 457 (Pallas

Letter).

           Myers was also examined by Dr. Mary Louise Miller in August 1999 at Cuyahoga County’s

request in order to determine her fitness for duty and possible workplace accommodations. Miller



           1
         Myers admitted in her deposition that she had three reasons for wanting the transfer: (1)
the building where she was working was in bad condition and in an unsafe neighborhood; (2) she
did not wish to be supervised by Caraballo; and (3) she wished to work in a location more
convenient to her home. J.A. at 246-47 (Myers Dep. at 116-17).

                                                 5
concluded that Myers’s depression was in remission, a fact that Cuyahoga County also relied upon

in its summary judgment motion. In her memorandum opposing summary judgment, Myers

admitted that she could not state a depression-based ADA claim, but moved to amend her complaint

to assert an ADA claim on the basis of her Adjustment Disorder-unspecified diagnosis, which was

an additional diagnosis made by Dr. Miller. Myers also argued that Dr. Miller’s statement that she

believed “it would be helpful to Ms. Myers mental functioning for her to be granted the reasonable

accommodation of reassignment to a different location and supervisor” required the district court

to deny defendants’ motion for summary judgment on her ADA claim. J.A. at 455 (Miller Report

at 6).

         Although the district court granted Myers’s motion to amend in order to allow her to assert

an ADA claim based upon the Adjustment Disorder diagnosis, the court granted summary judgment

to Cuyahoga County because it concluded that Myers had not shown that the Adjustment Disorder

is a disability as defined by the ADA. Upon review of this issue, we conclude that Myers has failed

to show that she is disabled as defined by the ADA.

         In order to establish a prima facie of disability discrimination under the ADA for failure to

accommodate, a plaintiff must show that: (1) she is disabled within the meaning of the Act; (2) she

is otherwise qualified for the position, with or without reasonable accommodation; (3) her employer

knew or had reason to know about her disability; (4) she requested an accommodation; and (5) the

employer failed to provide the necessary accommodation. See DiCarlo v. Potter, 358 F.3d 408, 419

(6th Cir. 2004).2 We use the same analysis for claims of disability discrimination under Ohio law.


         2
        Although DiCarlo dealt with a disability discrimination claim by a federal employee and
therefore was brought under the Rehabilitation Act of 1973, this court has held that analysis of
claims brought under the ADA “roughly parallels” those brought under the Rehabilitation Act.

                                                  6
Brenneman v. Medcentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004). Once an ADA plaintiff

establishes a prima facie case for failure to accommodate, “the burden shifts to the employer to

demonstrate that the employee cannot reasonably be accommodated, because the accommodation

would impose an undue hardship on the operation of its programs.” DiCarlo, 358 F.3d at 419

(internal quotation marks omitted). A “disability” under the ADA is defined as “a physical or

mental impairment that substantially limits one or more of the major life activities of such

individual,” “a record of such an impairment,” or “being regarded as having such an impairment.”

42 U.S.C. § 12102(2). “Major [l]ife [a]ctivities means functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

29 C.F.R. § 1630.2(i).

       Myers “bears the burden of establishing as an element of her prima facie case the existence

of an impairment that substantially limits a major life activity.” Doren v. Battle Creek Health Sys.,

187 F.3d 595, 598 (6th Cir. 1999). The district court is correct that in her memorandum in

opposition to Cuyahoga County’s motion for summary judgment, Myers did not address whether

her Adjustment Disorder substantially limits one or more major life activity, an omission she repeats

on appeal. In viewing the evidence in the light most favorable to Myers, we infer that Myers is

claiming that her Adjustment Disorder substantially limits her ability to work. However, Myers has

not produced any evidence that she was substantially limited in her ability to work because of her

Adjustment Disorder. Instead, she points only to Dr. Miller’s statements that she “may have [had]

intermittent irritability” if she remained in her current location and that her Adjustment Disorder was




Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).

                                                  7
“impacting on her current abilities in the present work environment.” J.A. at 455 (Miller Report at

6).

       The possibility of intermittent irritability from her Adjustment Disorder is insufficient to

establish the first step of Myers’s prima facie burden. “[T]he word ‘substantial’ clearly . . .

precludes impairments that interfere in only a minor way with the performance of [the major life

activity] from qualifying as disabilities.” Black v. Roadway Express, Inc., 297 F.3d 445, 451 (6th

Cir. 2002) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (second

alteration in original)). The intermittent irritability that Myers might have experienced from her

Adjustment Disorder if she remained in her existing employment location appears to be exactly the

sort of minor interference with a major life activity that the Supreme Court views as falling short

of the definition of a disability under the ADA. Furthermore, the Court stated that it is insufficient

for individuals attempting to establish that they are disabled under the ADA “to merely submit

evidence of a medical diagnosis of an impairment. Instead, the ADA requires those claiming the

Act’s protection . . . to prove a disability by offering evidence that the extent of the limitation

[caused by their impairment] in terms of their own experience . . . is substantial.” Toyota Motor

Mfg., 534 U.S. at 198 (internal quotation marks omitted) (alterations in original).            Myers

misguidedly attempts to rely upon her Adjustment Disorder diagnosis alone as the basis for her

claim that she is disabled under the ADA, and therefore allegedly entitled the reasonable

accommodation of a job transfer. Myers has not offered any evidence about the limitations on her

ability to work caused by her Adjustment Disorder, let alone that the impairment’s effects were

substantial. We AFFIRM the district court’s conclusion that Myers has failed to establish that she




                                                  8
is disabled as defined by the ADA, and therefore she is unable to defeat Cuyahoga County’s motion

for summary judgment on her ADA claim.

B. Myers’s Race-Discrimination Claim

        Myers also claims that she was terminated in violation of Title VII and Ohio law3 because

she is white (rather than Hispanic) and is non-Spanish speaking. The district court granted summary

judgment to Cuyahoga County because it held that Myers had not established a prima facie case of

reverse race discrimination. In order to establish a prima facie case of discrimination, Myers must

show that (1) she is a member of a protected class; (2) she was qualified for the job; (3) she

experienced an adverse employment action; and (4) she was replaced by a person outside the

protected class or she was treated differently than a similarly situated non-protected employee. See

Newman v. Federal Express Corp., 266 F.3d 401, 406 (6th Cir. 2001). In reverse-discrimination

cases, in order to establish the first step, a plaintiff must demonstrate “background circumstances

[to] support the suspicion that the defendant is that unusual employer who discriminates against the

majority.” Leadbetter v. Gilley, 385 F.3d 683, 690 (6th Cir. 2004) (internal quotation marks

omitted).

        The district court found Myers’s prima facie case lacking at the fourth step because it

correctly concluded that Myers had not addressed whether Cuyahoga County treated differently

employees who were similarly situated but not members of Myers’s protected class. The district

court failed to consider, however, that Myers could also establish the fourth step of her prima facie


        3
           Under Ohio law, Myers’s race and sex discrimination claims under Ohio Revised Code
§ 4112 are analyzed according to the same standards used to analyze federal discrimination claims
under Title VII. See, e.g., Cincinnati Bar Ass’n. v. Young, 731 N.E.2d 631, 639 (Ohio 2000) (stating
that it is the practice of the Ohio courts, “where appropriate, to refer to federal case law interpreting
Title VII” when analyzing discrimination claims brought under O.R.C. § 4112).

                                                   9
burden by showing that she was replaced by someone who was outside her protected class. See

Newman, 266 F.3d at 406. Considering that approach to the fourth step of her prima facie burden,

we conclude that Myers has put forth a prima facie case of reverse race discrimination. First, Myers

has presented background circumstances that support her suspicion that Cuyahoga County

discriminated against non-Hispanics. Father Ziemba testified at his deposition that “Mr. Vazquez

and Mrs. Caraballo were working very diligently to try to have a basically Hispanic welfare office

to meet the needs of the Hispanic community in that part of Cleveland.” J.A. at 353-54 (Ziemba

Dep. at 22-23). Ziemba also stated that in their efforts “to get this Hispanic office going,” Vazquez

and Caraballo “tended to be over zealous.” J.A. at 354 (Ziemba Dep. at 23). Next, the parties do

not dispute that Myers was qualified for her position or that she experienced the adverse

employment action of being terminated. Finally, Myers has established the fourth step because she

claims, both in her complaint and her appellate brief, that she was “replaced by a Hispanic, Spanish-

speaking employee” — a fact that has not been disputed by Cuyahoga County. J.A. at 22 (Compl.

at ¶ 5); Appellant Br. at 11.

       As Myers has established a prima facie case of reverse race discrimination, the burden shifts

to Cuyahoga County “to offer a legitimate, non-discriminatory reason for the adverse employment

action at issue.” Leadbetter, 385 F.3d at 690. The County has satisfied this burden by offering the

legitimate, non-discriminatory reason of the numerous, well-documented disciplinary offenses that

Myers committed. These disciplinary offenses were the result of many complaints by Myers’s

clients and co-workers about her insulting and unprofessional behavior, including her negative

comments about people who are foreign-born.             “Once the defendant has articulated a

nondiscriminatory reason for its decision, the presumption of discrimination that arises from the


                                                 10
plaintiff's prima facie case disappears and the plaintiff must have the opportunity to show that the

defendant's proffered explanation is merely a pretext for discrimination.” Weigel v. Baptist Hosp.

of East Tenn., 302 F.3d 367, 378 (6th Cir. 2002). Our court has recognized that a plaintiff can

establish pretext in one of three ways. “To make a submissible case on the credibility of his

employer's explanation, the plaintiff is required to show by a preponderance of the evidence either

(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually

motivate his discharge, or (3) that they were insufficient to motivate discharge.” Manzer v. Diamond

Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (internal quotation marks omitted).

         Myers has not shown that Cuyahoga County’s proffered explanation is pretextual in any of

these three ways. In the one page of her appellate brief devoted to her race-discrimination claim,

Myers does not refute the County’s stated reason for her termination nor does she point to any

evidence that the County’s claim that she was terminated because of her disciplinary problems was

a pretext for discrimination because she is not Hispanic. Appellant Br. at 21. Although she alleges

in her complaint that Caraballo solicited the complaints against her that resulted in the disciplinary

offenses, Myers has not presented any evidence whatsoever to support this assertion. Myers has

been unable to raise a genuine issue of material fact with respect to whether the proffered reason of

her numerous disciplinary offenses is a pretext for unlawful race discrimination, and so we AFFIRM

the district court’s grant of summary judgment to Cuyahoga County on Myers’s race-discrimination

claim.

C. Myers’s Sex-Discrimination Claim

         Myers’s final claim on appeal is that the district court erred in granting summary judgment

to Cuyahoga County on her sex-discrimination claim. Myers argues that Caraballo and Vazquez


                                                 11
sought her termination because she did not conform to their sex and gender stereotypes. Myers

claims that the County either considered her

       to be a masculine woman who did not sufficiently conform to their expectations of
       what a woman should look and/or act like; or they suspected that she was originally
       born male and viewed her as a man who violated their expectations of persons born
       male by identifying as female, transitioning genders from male to female, and
       expressing a feminine personality and disposition.

J.A. at 23 (Compl. at ¶ 6). Myers transitioned to being a female person around 1973 or 1974, and

so she had always been female while she was employed by Cuyahoga County. The County was

aware that Myers was a transsexual, however, because during the initial hiring process with the

County, Myers had explained that her many-year absence from the workforce and her name change

were due to her sex change. As with her other claims, Myers did not conduct any discovery

pertaining to her sex-discrimination claim, and relies only upon Cuyahoga County’s deposition of

Father Ziemba in which Ziemba stated that Myers’s transsexualism was a topic of office gossip and

that he once overheard a private conversation between Caraballo and Vazquez in either 1996 or 1997

in which Vazquez referred to Myers as a “he/she.” J.A. at 347-50 (Ziemba Dep. at 16-19).

       Title VII protects transsexual persons from discrimination for failing to act in accordance

and/or identify with their perceived sex or gender. Barnes v. City of Cincinnati, 401 F.3d 729 (6th

Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). “Sex stereotyping based on a

person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause

of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the

victim has suffered discrimination because of his or her gender non-conformity.” Smith, 378 F.3d

at 575. Myers’s prima facie burden for her gender nonconformity claim is the standard prima facie

burden for Title VII plaintiffs claiming that they have been terminated as a result of illegal


                                                 12
discrimination. Myers must show that (1) she is a member of a protected class; (2) she experienced

an adverse employment action; (3) she was qualified for the position in question; and (4) she was

replaced by a person outside the protected class or she was treated differently than a similarly

situated non-protected employee. See Smith, 378 F.3d at 570; Newman, 266 F.3d at 406.

       In her appellate brief, Myers does not address whether or not she has established her prima

facie burden, but rather she argues that the district court erroneously granted summary judgment to

Cuyahoga County because it was requiring her to use “magic words” in her complaint and

subsequent proceedings. Appellant Br. at 22. This is the incorrect legal standard for a plaintiff

attempting to survive summary judgment. In order to defeat summary judgment, Myers, who had

the opportunity to conduct discovery to develop her case but chose not to initiate discovery, must

show that a genuine issue of material fact remains as to her sex-discrimination claim. From our

review of the record, we conclude that Myers is unable to meet that burden.

       The district court is correct that there is no dispute that Myers has satisfied the first three

steps of her prima facie burden. The district court granted summary judgment to Cuyahoga County,

however, because it concluded that Myers had failed to meet the fourth step of her prima facie

burden because she had not shown that she was treated differently from similarly situated

individuals outside the protected class. Again, the district court did not recognize that Myers could

meet the fourth step by showing that she was replaced by person outside the protected class. See

Newman, 266 F.3d at 406. However, Myers has not alleged, let alone provided any evidence

showing, that she was replaced by a gender-conforming person. Furthermore, at oral argument,

Myers’s attorney admitted that she did not know whether or not Myers’s replacement was gender-

conforming. We will therefore assume for the sake of argument only that Myers’s replacement was


                                                 13
gender-conforming and that she has met her prima facie burden. Nevertheless, we conclude that

Myers has failed to demonstrate a genuine issue of material fact that Cuyahoga County’s proffered

non-discriminatory reason for terminating her — her plentiful disciplinary infractions — was a

pretext for sex discrimination because she is gender-nonconforming.

       As explained above, Cuyahoga County’s articulated nondiscriminatory reason for

terminating Myers is her well-documented history of disciplinary offenses. The burden then shifts

back to Myers to show that this proffered reason is a pretext for illegal sex discrimination.

       “‘[A] plaintiff's prima facie case, combined with sufficient evidence to find that the

employer's asserted justification is false, may permit the trier of fact to conclude that the employer

unlawfully discriminated,’ although such a showing might not ‘always be adequate to sustain a jury's

finding of liability.’” Weigel, 302 F.3d at 378 (quoting Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 148 (2000)). Unfortunately for Myers, she has failed to produce sufficient evidence

to create a genuine issue as to pretext. Myers has been unable to show either that the County’s

articulated reason of her disciplinary offenses has no basis in fact, that the disciplinary offenses did

not actually motivate the County’s decision to discharge her, or that the disciplinary infractions are

insufficient to motivate her discharge. See Manzer, 29 F.3d at 1084.

       The only evidence in the record that could be considered evidence of pretext is Father

Ziemba’s deposition testimony that he once heard Vazquez, when speaking privately to Caraballo,

refer to Myers as a “he/she.” J.A. at 347-50 (Ziemba Dep. at 16-19). At oral argument, Myers relied

entirely upon this incident to support her sex-discrimination claim. We agree with Myers that

calling a transsexual or transgendered person a “he/she” is a deeply insulting and offensive slur, and

we agree that using that term is strongly indicative of a negative animus towards gender


                                                  14
nonconforming people. In the context of all the evidence in this case, however, we cannot conclude

that the statement by itself is sufficient to create a jury question on the issue of pretext. The “he/she”

incident is the only incident Myers proffers as proof of pretext. That isolated remark was remote

in time from Myers’s termination — the remark was made sometime in 1996 or 1997, several years

before the problems with Myers’s performance in late 1998 and 1999 that led to her disciplinary

offenses and ultimately her termination — and there is no evidence that the remark was related to

Cuyahoga County’s decision to terminate her. See Weigel, 302 F.3d at 379.

        Additionally, there is significant evidence to support Cuyahoga County’s claim that the

proffered reason for terminating Myers — that she was behaving in inappropriate and insulting ways

towards her co-workers and clients — is credible and genuine. Had Myers been able to produce any

evidence to call into question the legitimacy of Cuyahoga County’s stated reason for firing her,

perhaps by discovering some evidence that the disciplinary complaints against her were exaggerated

or solicited by Caraballo, then that evidence in combination with the “he/she” comment might have

been sufficient to raise a jury question on the issue of pretext. But Myers has not presented a shred

of evidence to undermine the credibility of the County’s explanation for her termination. Given the

significant and unrebutted evidence of Myers’s disciplinary problems, the isolated “he/she” remark,

without more, is not sufficient to create a jury question as to pretext. Myers is unable to defeat

Cuyahoga County’s motion for summary judgment, and so we AFFIRM the district court’s grant

of summary judgment on her sex-discrimination claim.

                                         III. CONCLUSION

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

Cuyahoga County on all of Myers’s claims.


                                                   15
