                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0239n.06

                                       Case No. 15-3597                               FILED
                                                                                May 05, 2016
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


TERESA D. GREEN,                                        )
                                                        )
       Plaintiff-Appellant,                             )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
v.                                                      )       COURT FOR THE SOUTHERN
                                                        )       DISTRICT OF OHIO
CENTRAL OHIO TRANSIT AUTHORITY,                         )
                                                        )              OPINION
       Defendant-Appellee.                              )
                                                        )

BEFORE: CLAY, GIBBONS, and STRANCH; Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge.                     Teresa Green was terminated

approximately three months after filing a second charge against the Central Ohio Transit

Authority (COTA) for discriminating against her on the basis of her disability. Green alleges her

termination was in retaliation for filing discrimination charges, but COTA insists that she was

terminated for persistently falsifying her time records. Green filed the instant claim under Title

VII’s anti-retaliation provision. The district court granted summary judgment in favor of COTA

because Green failed to establish the causation element of a prima facie retaliation claim and

even if she had, Green failed to show that COTA’s proffered reason for her termination was a

pretext for retaliation. Because we agree with the district court’s conclusions on both causation

and pretext, we affirm summary judgment in favor of COTA.
No. 15-3597, Green v. Central Ohio Transit Authority


                                               I.

       Green is an African American woman with a chronic lung condition. She worked for

COTA from 1992 until her termination on September 8, 2011. While working for COTA, Green

was required to record the hours she worked using an electronic timekeeping system.          In

September 2010, she was transferred to a new facility where she worked as a Facilities

Coordinator and was supervised by Jon Hancock, the location’s Facilities Manager. After her

transfer, she was required to continue her duties as Facilities Coordinator while additionally

taking on receptionist duties. Hancock recognized the difficulties with handling both positions

and notified Tim Smith, the Director of Facilities, about the issue. Shortly after Green began

work at the new facility, Hancock sent her an email about her attendance problems, requesting

that she speak with him about any prior arrangements regarding her attendance so they could

“come to an understanding.” Letter from Hancock to Smith, Sept. 27, 2010, ECF No. 40-22.

       In January 2011, the relationship between Green and Hancock began to deteriorate after

Hancock wrote her a performance review with an overall score indicating that she “meets and

sometime[s] exceeds expectations,” which Green perceived to be negative. 2010 Performance

Management Form 1, 10, ECF No. 42-6. Green responded to Hancock’s evaluations with

comments but alleged that video evidence indicates that Hancock unlocked Green’s desk drawers

and removed the evaluation with her commentary without her permission. COTA’s Human

Resources department stepped in to attempt to resolve their problems, but a short time later, on

February 10, 2011, Green filed charges with the Ohio Civil Rights Commission (OCRC) and the

Equal Employment Opportunity Commission (EEOC) alleging racial and disability

discrimination and retaliation.




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No. 15-3597, Green v. Central Ohio Transit Authority


          In May 2011, Hancock took a leave of absence under the FMLA around the same time

that he violated COTA’s policies by giving information to a potential vendor during the bidding

process. While Hancock was on leave, Vince Zeno, another Facilities Manager, covered his

duties.       Zeno noticed at least one occasion when Green’s timecard was inaccurate and

approached her about not being at the reception desk when visitors arrived. Around June 7,

2011, Green filed another OCRC and EEOC charge alleging disability discrimination and

retaliation for the February 10, 2011, charge.

          Afterwards, in August 2011, COTA offered to transfer Green to a new facility; she

agreed and withdrew her June OCRC and EEOC charges. That month, anonymous employees

sent complaints to COTA’s hotline about Zeno’s treatment of Green.

          Shortly after Green’s transfer, COTA’s legal counsel, Aaron Tompkins, approached Tim

Smith, the new location’s Facilities Manager, stating that two anonymous supervisors had told

him that Green was often late and rarely at her desk. Tompkins noted in a memorandum that on

August 10, 2011, at Smith’s request, he began an investigation into Green’s timecards, access

badge swipes, and security footage.           His investigation ultimately revealed that, during the

investigatory period from January to July 2011, Green arrived late more than 60 times for a total

of 21 hours and 2 minutes.1 On August 22, 2011, Hancock returned to work from FMLA leave

and received a final warning for a “continual pattern of inappropriate comments and

unprofessional behavior.” Hancock’s Decision on Discipline—Final Warning 1, ECF No. 37-5.

This warning letter referenced a pending OCRC charge and noted that if it was found to be valid,

it could affect his employment status. Smith testified that on August 24, 2011, Tompkins first


          1
          The amount of time Green arrived late appears to be based on the assumption that her start time was at
7:00am. However, the evidence indicates that Hancock agreed to let Green begin work at 7:15am, and COTA
agrees. Thus, it appears that Green was not late as often as the report suggested. However, as will be discussed
below, any errors in COTA’s termination decision are not necessarily fatal to its defense.
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No. 15-3597, Green v. Central Ohio Transit Authority


met with him, Kristen Treadway (the Vice President of Human Resources), and Shirley Graham

(the Director of Human Resources) to discuss the results of the investigation.

       Smith testified that on August 30, 2011, he, Tompkins, Treadway, and Graham met to

discuss possible disciplinary measures.     While they initially decided that Green should be

suspended for three days, Smith testified that he ultimately decided to fire Green because

allowing so many timecard violations would “set a bad precedent” and he had “zero tolerance”

for theft. Smith Aff. 2, ECF No. 39-32; Smith Dep. 208:17–209:14, ECF No. 39-1. Treadway,

Graham, W. Curtis Stitt (the Chief Executive Officer), and Marion White (the Chief Financial

Officer) all agreed to the termination at a meeting on September 7, 2011. Green was terminated

on September 8, 2011, for falsification of her timecards. Green then filed another charge with

the OCRC and EEOC; the EEOC sent her a right-to-sue letter in October 2012. She filed the

instant action in January 2013. Several of her claims were dismissed and the sole remaining

claim is for retaliatory discharge.

       The district court granted summary judgment in COTA’s favor.              Because COTA

conceded the first three elements of Green’s prima facie case were met, the district court first

addressed the fourth element of causation and concluded that that element was not met. The

district court reasoned that to accept Green’s theory of a causal connection, it would have to

ignore the fact that the investigation began prior to Hancock’s return from leave, Hancock did

not learn of the charges until he returned from leave, and he did not find out about the

investigation until after Green was terminated. Though finding that Green failed to establish a

prima facie case, the district court went on to address whether Green presented sufficient

evidence that COTA’s non-discriminatory reason for terminating Green was pretextual,




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No. 15-3597, Green v. Central Ohio Transit Authority


determining that she did not because she failed to submit evidence disputing COTA’s evidence

that Green habitually arrived to work late and/or left early.

                                                 II.

       We review a district court’s grant of summary judgment de novo and its factual findings

for clear error. Keck v. Graham Hotel Sys., Inc., 566 F.3d 634, 636 (6th Cir. 2009). The movant

is entitled to summary judgment where the movant shows “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

We must view all facts and reasonable inferences drawn therefrom in the light most favorable to

the non-moving party. Mosholder v. Barnhardt, 679 F.3d 443, 449 (6th Cir. 2012). If the

movant—COTA—satisfies its burden by establishing the absence of evidence to support the

non-moving party’s—Green’s—case, the burden then shifts to Green to “designate specific facts

showing that there [is] a genuine issue for trial.” Peterson v. Johnson, 714 F.3d 905, 910 (6th

Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Green cannot carry this

burden by relying on mere “[c]onclusory assertions, supported only by [her] own opinions.”

Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008). Reliance on “the mere

existence of a scintilla of evidence” or “some metaphysical doubt as to the material facts” is

insufficient for the court to deny COTA’s motion for summary judgment. Sierra Club v. ICG

Hazard, LLC, 781 F.3d 281, 284 (6th Cir. 2015) (quoting White v. Baxter Healthcare Corp., 533

F.3d 381, 389 (6th Cir. 2008)). Rather, Green must show sufficient probative evidence, based

“on more than mere speculation, conjecture, or fantasy,” that would enable a jury to find in her

favor. Arendale, 519 F.3d at 601 (quoting Lewis v. Philip Morris, Inc., 355 F.3d 515, 533 (6th

Cir. 2004)). It is the function of the jury, not the court, to make credibility determinations, so

while the “prospect of challenging a witness[’s] credibility is not alone enough to avoid summary

judgment,” if Green presents specific facts calling into question COTA’s witnesses, we will not
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No. 15-3597, Green v. Central Ohio Transit Authority


grant summary judgment in COTA’s favor. Goodwin v. City of Painesville, 781 F.3d 314, 323

(6th Cir. 2015) (alteration in original) (citation omitted); Montell v. Diversified Clinical Servs.,

Inc., 757 F.3d 497, 503 (6th Cir. 2014).

                                                       III.

        Green argues that Smith, Hancock, and Zeno “were each involved in [Green’s] problems

and contributed to them greatly,” yet the district court “basically took the easy way out without

looking at the credibility factor when weighing the deposition transcript testimony.” R. at 20,

Appellant Br. at 24–25. She insists that Hancock’s testimony that he had not spoken to Smith or

Zeno about the investigation is false and that Hancock’s “underhanded discriminatory and

malicious verbal statements” to her were “a precursor to her termination based upon his receipt

of the final warning letter.” Id. at 16, 25. Green also contends that the fact that Tompkins met

with management to discuss her termination only two days after Hancock returned from leave

and that she was fired a mere seventeen days after Hancock returned establishes causation.2

        Green brings this claim under Title VII’s retaliation provision, alleging that she was

discharged after repeatedly complaining about racial harassment. Title VII’s anti-retaliation

provision prohibits employers from discriminating against an employee because the employee

opposed a practice forbidden by Title VII or made a charge in a Title VII proceeding. Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). Green

has produced only circumstantial evidence of discrimination, so we will apply the McDonnell

Douglas framework to her claim. Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769,


        2
           Green also avers that Zeno and Hancock must have been the two supervisors to report her because of the
animosity they held towards her and argues, without citation to legal authority, that the fact that COTA refuses to
divulge their names evinces causation. Though Green faults COTA for not turning over the names of the
supervisors who reported her, the district court record reflects, and Green does not contest, that Green did not
attempt to depose Tompkins, a person at COTA who could be aware of these names. Thus, Green improperly
attempts to place the burden on COTA to produce evidence to support her claim.
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No. 15-3597, Green v. Central Ohio Transit Authority


775–76 (6th Cir. 2016). To establish a prima facie case of retaliation, Green must demonstrate

that (1) she engaged in a protected activity; (2) COTA was aware that she engaged in a protected

activity; (3) COTA took an adverse employment action against Green after she engaged in that

protected activity; and (4) there is a causal connection between the protected activity and the

adverse action. Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 649 (6th Cir. 2015).

If she meets her prima facie case, the burden will shift to COTA to prove a legitimate, non-

discriminatory reason for her termination. Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th

Cir. 2014). If COTA can establish such a reason, the burden shifts back to Green to establish

that COTA’s proferred reason was merely pretextual. Id. Throughout this process, the burden of

persuasion remains with Green. Id.

       We will begin our analysis with the element of causation because COTA concedes that

the first three elements of the prima facie case have been established.

       To establish causation, Green must present “proof that the unlawful retaliation would not

have occurred in the absence of the alleged wrongful action or actions of the employer.”

Yazdian, 793 F.3d at 649 (quoting Univ. of Tx. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533

(2013)). Causation can be established by indicia of retaliatory conduct, such as evidence that the

plaintiff was treated differently than similarly situated employees who did not engage in

protected activity or evidence that the plaintiff was subjected to closer disciplinary scrutiny after

engaging in protected activity. Evans v. Prospect Airport Servs., Inc., 286 F. App’x 889, 895

(6th Cir. 2008) (citing Little v. BP Exploration & Oil Co., 265 F.3d 357, 364–65 (6th Cir. 2001);

Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999)).

       The temporal proximity between the employee’s engagement in protected conduct and

the adverse employment action also plays a role in the causation analysis, though our circuit’s


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No. 15-3597, Green v. Central Ohio Transit Authority


case law is inconsistent on whether temporal proximity standing alone is sufficient establish

causation. See Evans, 286 F. App’x at 895; Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525

(6th Cir. 2008). Nevertheless, an “intervening legitimate reason” to take an adverse employment

action will “dispel[] an inference of retaliation based on temporal proximity.”              Khun v.

Washtenaw Cty., 709 F.3d 612, 628 (6th Cir. 2013) (quoting Wasek v. Arrow Energy Servs., Inc.,

682 F.3d 463, 472 (6th Cir. 2012)). In Wasek for example, after the plaintiff was sexually

harassed by a co-worker and repeatedly complained to management to no avail, he decided to

leave his job site, which created difficulty for his employer because the plaintiff’s crew was 600

miles away from the main office, making it difficult to bring in a replacement. 682 F.3d at 465–

66. Thereafter, the employer engaged in a materially adverse employment action by banning

him from returning to work with the crew. Id. at 466–67, 470. The court determined that the

plaintiff’s departure from the job site provided the employer “an intervening legitimate reason to

discipline him,” which allayed any inference of retaliation based on the temporal proximity

between his protected activity and the adverse employment action. Id. at 472.

       Green appears to argue that she was subjected to closer scrutiny after engaging in a

protected activity, seemingly based on her allegations that Hancock and Zeno initiated an

investigation into Green’s time records, which ultimately led to her termination in retaliation for

her filing of OCRC and EEOC charges. However, this allegation is based on pure speculation.

Green points to no facts, just her own subjective belief, that Hancock or Zeno were involved in

the timecard investigation, or that it was initiated in response to her protected activity. Indeed, in

her deposition, she even admits that she has no facts in support of this belief. In fact, the

evidence in the record contradicts Green’s speculation. Tompkins, who Green does not allege

holds discriminatory animus towards her, was the one that initiated the investigation, at Smith’s


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No. 15-3597, Green v. Central Ohio Transit Authority


direction, after two supervisors notified Tompkins of the issue. Hancock testified that he had no

knowledge of the OCRC and EEOC charges until he received his final warning notifying him of

such on August 22, 2011, nearly two weeks after the investigation began, and did not find out

about the investigation until after Green was terminated. Even assuming that Hancock and Zeno

were the supervisors who reported Green’s attendance issues to Tompkins, the evidence reveals

that the decision to terminate Green was reasonably taken after careful consideration and

deliberation by neutral decision makers. See Tingle v. Arbors at Hilliard, 692 F.3d 523, 530–31

(6th Cir. 2012) (emphasizing the importance of “the nature of [the employer’s] investigation and

disciplinary decision process” in determining whether the employer held an “honest belief” in

the non-discriminatory basis for its employment decision).         Smith and other members of

management, also against whom Green makes no allegations of discriminatory animus, met

twice to discuss Green’s timecard violations before unanimously agreeing to terminate her. The

testimony in the record indicates that Green’s retaliation charges were not discussed at this

meeting. Moreover, while Green faults the district court for failing to weigh the credibility of

this testimony, she points to no specific facts, simply her own speculation, to support her

allegation that the testimony indicating that her civil rights claims played no role in the decision

to terminate her was fabricated.     This is not sufficient to avoid summary judgment.          See

Goodwin, 781 F.3d at 323; Sierra Club, 781 F.3d at 284.

       Green also relies on the temporal proximity between Hancock’s discovery of her OCRC

charge on August 22, 2011, the August 24, 2011 meeting discussing her timecard violations, and

her termination on September 8, 2011.         However, the evidence, specifically Tompkins’s

memorandum regarding the investigation, reveals that the investigation began on August 10,

2011, twelve days before Hancock learned of Green’s complaint. Thus, Hancock’s discovery of


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No. 15-3597, Green v. Central Ohio Transit Authority


Green’s OCRC charges cannot be said to have caused the adverse employment action. Even if

Hancock discovered the charges prior to the initiation of the timecard investigation, Green’s

falsification of her time records constitutes an intervening legitimate reason for the adverse

employment action, thus dispelling any inference of retaliation based on the temporal proximity

between her filing of the June OCRC and EEOC charges and her termination three months later.

See Wasek, 682 F.3d at 472.3

         There is simply insufficient evidence on the record from which we can infer that Green’s

termination would not have occurred absent any alleged retaliation for her OCRC and EEOC

charges.

                                                        IV.

         COTA has presented a legitimate non-discriminatory rationale for Green’s termination—

her falsification of time records. Though Green forfeited any argument that this rationale is

pretextual because she does not argue it in her initial brief on appeal, and only makes a

conclusory reference to pretext in her reply brief, see Sanborn v. Parker, 629 F.3d 554, 579 (6th

Cir. 2010), she cannot demonstrate pretext.




         3
             Green also argues that whether she stole time is a genuine issue of material fact. She insists that the
“timecards/payroll records generated by the payroll system/department are for the most part illegible, incomplete
and do not demonstrate much except the amount of hours [Green] got paid for,” R. at 20, Appellant Br. at 22, and
points to several alleged errors in COTA’s data. Green concludes that it is this court’s duty to decipher the records.
She is incorrect. First, she did not raise this issue before the district court. There, she simply argued that COTA
failed to investigate whether Green made up her missed time and that she was denied a hearing or opportunity to
refute the evidence from the investigation. As we generally do not review issues that have not been presented before
the district court, Green has forfeited this argument. Fed. Trade Comm’n v. E.M.A. Nationwide, Inc., 767 F.3d 611,
630 (6th Cir. 2014). Moreover, Title VII retaliation claims are not the appropriate means through which one
challenges the accuracy of the reasons for one’s termination. Tingle, 692 F.3d at 530. Instead, we look to “whether
the employer made a reasonably informed and considered decision before taking the complained-of action,” so
Green must not only establish that COTA’s stated reasons are false, but also “that retaliation was the real reason for
the adverse action.” Id. at 530–31 (quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598–99 (6th Cir.
2007) (internal quotation marks omitted)). As will be discussed in further detail below, Green has failed to make
this showing. For this reason, we also reject Green’s argument that the images on the security footage Tompkins
reviewed did not “definitively” identify her.
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No. 15-3597, Green v. Central Ohio Transit Authority


       In this circuit, pretext can be established in three interrelated ways.          Green can

demonstrate “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did

not actually motivate [COTA’s] action, or (3) that they were insufficient to motivate [COTA’s]

action.” Tingle, 692 F.3d at 530 (quoting Romans v. Mich. Dep’t of Human Servs., 668 F.3d

826, 839 (6th Cir. 2012)). Green can demonstrate pretext by challenging the reasonableness of

COTA’s decision to terminate her, “to the extent that such an inquiry sheds light on whether

[COTA’s] proffered reason for the employment action was its actual motivation.” Risch v. Royal

Oak Police Dep’t, 581 F.3d 383, 391 (6th Cir. 2009) (quoting White, 533 F.3d at 393).

Nevertheless, “[w]hen an employer reasonably and honestly relies on particularized facts in

making an employment decision, it is entitled to summary judgment on pretext even if its

conclusion is later shown to be ‘mistaken, foolish, trivial, or baseless.’” Chen v. Dow Chem.

Co., 580 F.3d 394, 401 (6th Cir. 2009) (quoting Clay v. United Parcel Serv., Inc., 501 F.3d 695,

713–15 (6th Cir. 2007)).

       Green cannot establish that the reasons for her termination had no basis in fact.

Although, as discussed supra note 1, the termination decision may have been based at least in

part on erroneous calculations, there is no indication that the ultimate decision to terminate

Green was not based on a reasonable and honest belief that Green falsified her timecards,

particularly in light of the fact that the person who investigated the violations and four of the

members of management who agreed with the termination decision are not alleged to harbor any

retaliatory animus towards Green. For this reason, and as discussed above, there is no evidence

to establish that the proffered reasons for terminating Green were not the actual reasons for the

termination decision. Finally, the undisputed evidence indicates that COTA had no tolerance for

extensive theft of time, and Green fails to point to any evidence, such as similarly situated


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No. 15-3597, Green v. Central Ohio Transit Authority


employees with analogous violations who were not terminated, that such a violation was

insufficient to motivate her termination.

       Thus, the evidence is insufficient to conclude that COTA’s reasons for terminating Green

were pretextual.

                                                V.

       Because Green fails to establish the prima facie element of causation, and also fails to

establish pretext, we affirm summary judgment in favor of COTA.




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