Shibe v. Cardinal Credit Union, Inc.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ABBIE SHIBE, )

) CASE NO. 1:21-cv-1436

Plaintiff, )

)

v. ) JUDGE BRIDGET MEEHAN BRENNAN

)

CARDINAL CREDIT UNION, INC., ) MEMORANDUM OPINION

) AND ORDER

Defendant. )

)

Before this Court is the motion for summary judgment filed by Defendant Cardinal

Credit Union, Inc. (Doc. No. 22.) Plaintiff Abbie Shibe opposed this motion (Doc. No. 27), and

Defendant replied in support (Doc. No. 28). For the reasons that follow, the motion is

GRANTED, and the case is DISMISSED.

I. Factual and Procedural Background

A. Factual Background

Defendant is an Ohio credit union. (Doc. No. 22-1 at 387-88.)1 A credit union is a non-

profit financial services institution owned, managed, and utilized by its members. (Id. at 387.)

Christine Blake (“Blake”) was Defendant’s Chief Executive Officer at all times relevant to this

dispute. (Id. at 387-89.) In early 2020, Defendant had branches in Mentor, Ashtabula,

Austintown, Lakeland, and Willoughby, with Mentor being Defendant’s “flagship” location.

(Doc. No. 22-1 at 388.)

Plaintiff was hired on December 10, 2018, to serve as the Mentor branch manager. (Id. at

1 For ease and consistency, record citations are to the electronically stamped CM/ECF document

and PageID# rather than any internal pagination.

389; Doc. No. 21-1 at 115, 124.) Blake made the ultimate decision to hire Plaintiff. (Doc. No.

21-1 at 191-92.) Blake and Plaintiff are both women. (Doc. No. 22-1 at 389; Doc. No. 1 at 2.)

Plaintiff’s responsibilities included managing employees, ensuring compliance with state

and federal regulations, hitting financial benchmarks, and improving customer satisfaction.

(Doc. No. 27-3 at 764-65; Doc. No. 27-4.) Before accepting this role, Plaintiff worked in the

banking industry for roughly 30 years and spent about 16 years as a branch manager. (Doc. No.

21-1 at 116.)

For 2019, Defendant rated Plaintiff’s overall performance a 3.6 on a 5-point scale. (Doc.

No. 27-4 at 835.) Defendant rated Plaintiff’s sales performance a 4, explaining that Mentor was

meeting its lending production goals, and Plaintiff was “consistently in the top three in

production month over month.” (Id. at 833.) Giving her “job knowledge” a 2, Defendant noted

that Plaintiff needed to improve her “knowledge, skills, and efficiency in task completion.” (Id.

at 833-34.) In the compliance section, Defendant highlighted that Mentor “consistently [had] the

majority of errors . . . .” (Id.) Defendant concluded Plaintiff’s 2019 review by giving Plaintiff a

2 on her employee management skills, noting that employee “turnover in 2019 was abnormal.”

(Id. at 835.)

On January 27, 2020, Defendant gave Plaintiff an Employee Verbal Warning Notice for

failing to respond promptly to customer communications on two occasions. (Id.) The notice

indicates that Plaintiff was placed on a 30-day probation for these infractions. (Id.)

Defendant inspected the Mentor branch and, on February 19, 2020, issued Plaintiff an

Employee Written Warning Notice. (Doc. No. 22-4 at 542.) This time, Defendant reprimanded

Plaintiff for not following onboarding procedures and failing to audit account cards before

submitting them to compliance. (Id.) Plaintiff was placed on a 60-day probation.2 (Id.)

On March 10, 2020, Defendant forced Plaintiff to review and sign a document called

“Abbie 2020 Expectations.” (Doc. No. 22-8.) The three-page document lists Plaintiff’s various

job responsibilities. (Doc. No. 22-8.) The job expectations are broken into five categories:

decision-making, management, sales performance, job knowledge, and compliance. (Id.) At the

time Plaintiff executed this document, Plaintiff was Defendant’s lowest performing branch

manager and the only one on disciplinary probation. (Doc. No. 22-1 at 391.)

Defendant terminated Plaintiff on March 23, 2020. (Doc. No. 22-6 at 547.) Blake, along

with two other employees, determined Plaintiff’s termination was warranted because Covid-19

created a need to cut staff, and Plaintiff’s specific performance issues and probation status

elevated her on the list of employees to be eliminated. (Doc. No. 22-1 at 391-92.) Mentor’s

assistant branch manager (a male) was also terminated on March 23, 2020. (Id. at 392.) Because

of Covid-19, Defendant terminated 14 employees and closed its branch located at Lakeland

Community College. (Id.)

Plaintiff’s position was immediately filled by Defendant’s Chief Operating Officer

(“COO”), who simultaneously performed the job duties and responsibilities of COO and those of

2 In her statement of facts section, Plaintiff directs the Court to her deposition testimony

indicating that Blake gave her a good performance review “in the middle of February 2020” and

“gave [her] a bonus less than one month before she terminated [her].” (Doc. No. 27 at 568; Doc.

No. 21-2 at 180.) Plaintiff does not clarify whether her review was generally “good” or only

“good” for certain aspects of her role. The portion of the transcript cited by Plaintiff also does

not indicate whether this bonus was discretionary and, if not, what aspects of her performance

bonus determinations were based on. In other parts of the deposition transcript, Plaintiff testifies

that Defendant gave nondiscretionary bonuses to branch managers based solely on the manager’s

employees’ and their own sales performance. (Doc. No. 21-1 at 224.) In other words, if sales

targets were hit, Defendant gave branch managers a bonus. (See id.) The fact that Plaintiff met

or exceeded Defendant’s sales expectations is not disputed. (Doc. No. 27-4 at 833.) Also

undisputed is that sales performance was only one of Plaintiff’s five performance expectations.

(See “Abbie 2020 Expectations,” Doc. No. 22-8.)

Plaintiff’s position. (Id.) On May 1, 2020, Defendant offered Plaintiff’s role to a male

employee. (Id.) On May 18, 2020, Defendant’s Willoughby branch manager, a male, transferred

to Mentor to take over Plaintiff’s prior position. (Id. at 392-93.)

B. Procedural Background

Plaintiff initiated this case on July 26, 2021, alleging gender discrimination under Title

VII (Count One) and Ohio Rev. Code § 4112.01 (Count Two). (Doc. No. 1.) Defendant moved

for summary judgment on both counts on November 10, 2022. (Doc. No. 22.) Plaintiff opposed

the motion on January 11, 2023. (Doc. No. 27.) Defendant replied in support on January 25,

2023. (Doc. No. 28.)

II. Discussion

A. Standard of Review

“A party may move for summary judgment, identifying each claim or defense – or the

part of each claim or defense – on which summary judgment is sought.” Fed. R. Civ. P. 56(a).

“Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories,

and affidavits show there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. The moving party bears the burden of showing that no

genuine issues of material fact exist.” Williams v. Maurer, 9 F.4th 416, 430 (6th Cir. 2021)

(citations and quotations omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

Mining Mach., Inc. v. Copley, 145 F. App’x 149, 152 (6th Cir. 2005) (“The moving party bears

the initial burden of informing the court of the basis for its motion and identifying those portions

of the record that establish the absence of a genuine issue of material fact.”).

A “material” fact is one that “might affect the outcome of the suit under the governing

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a genuine dispute of

material fact exists if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party. Abu-Joudeh v. Schneider, 954 F.3d 842, 849-50 (6th Cir. 2020) (additional

citations and quotations omitted).

“Once the moving party satisfies its burden, the burden shifts to the nonmoving party to

set forth specific facts showing a triable issue of material fact.” Queen v. City of Bowling Green,

Kentucky, 956 F.3d 893, 898 (6th Cir. 2020) (quotation and citations omitted). “[O]n summary

judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light

most favorable to the party opposing the motion.” United States v. Diebold, 369 U.S. 654, 655

(1962); see also Kalamazoo Acquisitions, L.L.C. v. Westfield Ins. Co., 395 F.3d 338, 342 (6th

Cir. 2005).

A party asserting or disputing a fact must cite evidence in the record or show that the

record establishes the absence or the presence of a genuine dispute. See Fed. R. Civ. P. 56(c)

and (e). Rule 56 further provides that “[t]he court need consider only” the materials cited in the

parties’ briefs. Fed. R. Civ. P. 56(c)(2); see also Street v. J.C. Bradford & Co., 886 F.2d 1472,

1479-80 (6th Cir. 1989) (“The trial court no longer has the duty to search the entire record to

establish that it is bereft of a genuine issue of material fact.”).

“Where the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). However, the Court’s role is not to make credibility

determinations or “weigh” conflicting evidence. Payne v. Novartis Pharms. Corp., 767 F.3d

526, 530 (6th Cir. 2014); Arban v. W. Publ’g Corp., 345 F.3d 390, 400 (6th Cir. 2003). “The

ultimate question is whether the evidence presents a sufficient factual disagreement to require

submission of the case to the jury, or whether the evidence is so one-sided that the moving

parties should prevail as a matter of law.” Payne, 767 F.3d at 530.

B. Analysis

Plaintiff alleges gender discrimination under Title VII and Ohio Rev. Code § 4112.01.

(Doc. No. 1.) Both parties agree that these claims should be analyzed together, as federal case

law interpreting Title VII applies to actions brought under Ohio Rev. Code § 4112.01. (Doc. No.

22 at 380; Doc. No. 27 at 571.) E.g., Hamilton v. Sysco Food Servs. of Cleveland, Inc., 866

N.E.2d 559, 564 (Ohio Ct. App. 2006) (collecting cases). Both parties also agree that Plaintiff

can only prove her claim with circumstantial evidence, meaning her claims must be analyzed

under the McDonnell Douglas framework. (Doc. No. 22 at 381; Doc. No. 27 at 571-72.)

1. McDonnell Douglas Overview

Under McDonnell Douglas, the plaintiff must establish, by a preponderance of the

evidence, a prima facie case of discrimination. Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S.

248, 252-53 (1981). If done, the burden of production shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for the adverse employment action. Id. at 253. Should the

defendant carry the burden, the plaintiff must then prove that the stated justification is pretext for

discrimination. Id. Throughout this entire process, the burden of persuasion remains on the

plaintiff to demonstrate that the defendant intentionally discriminated against her. Id.

2. Prima Facie Case

The burden of establishing a prima facie case of discrimination “is not onerous.” Id. The

plaintiff must only demonstrate that she (a) was a member of a protected class, (b) suffered an

adverse employment action, (c) was qualified for the position, and (d) was replaced by someone

outside of the protected class or was treated differently than a similarly situated, non-protected

comparator employee. Briggs v. Univ. of Cincinnati, 11 F.4th 498, 508 (6th Cir. 2021). To grant

summary judgment at this McDonell Douglas stage, the Court must find that there is no genuine

factual dispute as to the plaintiff’s ability to establish one of these elements. Cicero v. Borg-

Warner Auto., Inc., 280 F.3d 579, 587 (6th Cir. 2002).

There is no dispute about the first three elements. Plaintiff is a woman and is thus a

member of a protected class. (Doc. No. 1 at 5.) She also faced an adverse action when she was

terminated. (Doc. No. 22-6 at 547.) E.g., Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886

(6th Cir. 1996). And Defendant does not dispute that Plaintiff was qualified for her position.

(See Doc. No. 22 at 381-82; Doc. No. 28 at 851-52.)

There are, however, some complications with the fourth element. When “an employee is

laid off as part of a reduction-in-force[], the fourth requirement is modified[,] and . . . the

plaintiff must present direct, circumstantial, or statistical evidence tending to indicate that the

employer singled out the plaintiff for discharge for impermissible reasons.” Thompson v. Fresh

Prod., LLC, 985 F.3d 509, 522 (6th Cir. 2021) (citations and quotations omitted). The Sixth

Circuit limits what constitutes a reduction-in-force:

A work force reduction situation occurs when business considerations cause an

employer to eliminate one or more positions within the company. An employee is

not eliminated as part of a work force reduction when he or she is replaced after his

or her discharge. However, a person is not replaced when another employee is

assigned to perform the plaintiff’s duties in addition to other duties, or when the

work is redistributed among other existing employees already performing related

work. A person is replaced only when another employee is hired or reassigned to

perform the plaintiff’s duties.

Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). Applying this definition here is

not straightforward because immediately after Plaintiff’s termination, “another employee [was]

assigned to perform [Plaintiff’s] duties in addition to [their] other duties.” Id. (Doc. No. 22-1 at

392-93.) But this arrangement ended a few months later when Defendant hired a male to fill

Plaintiff’s role. (Doc. No. 22-1 at 392-93.) Defendant asks this Court to apply this heightened

standard without considering whether this subsequent hiring decision changes whether Plaintiff’s

termination can be characterized as a reduction-in-force.

Even without applying the heightened reduction-in-force standard, it is still unclear

whether Plaintiff can satisfy the fourth element. A plaintiff typically has two options for

establishing this element: she can show that “she was replaced by someone outside the protected

class or was treated differently than similarly-situated, non-protected employees.” Briggs, 11

F.4th at 508 (emphasis added). Here, Plaintiff argues that she can do both. (Doc. No. 27 at 573-

74.) But, under the first method, she runs into the same complications identified above: it is

unclear whether Plaintiff was truly replaced by the person Defendant hired on May 18, 2020, as

for nearly two-months, the COO fulfilled Plaintiff’s job duties in addition to his other duties.

(Doc. No. 22-1 at 392-93.) Regarding the second method, Plaintiff briefly identifies a

comparator employee. (Doc. No. 27 at 574.) But she has not provided enough information for

the Court to find that this comparator is similarly situated in “all of the relevant aspects” of her

employment. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).

For its part, Defendant mainly focused on the replacement theory and did not acknowledge or

apply the Sixth Circuit caselaw authorizing Plaintiff to establish a prima facie case with

comparator evidence. Briggs, 11 F.4th at 508. (Doc. No. 22 at 381; Doc. No. 28 at 851.)

The parties’ briefs do not fully address this element. Nonetheless, because this case is

straightforwardly resolved at the pretext stage, the Court assumes – without deciding – that

Plaintiff has met her burden of establishing a prima facie case.

3. Legitimate, Nondiscriminatory Reason

Defendant’s burden at this stage is far from onerous. The employer must “clearly set

forth, through the introduction of admissible evidence, the reasons for the [adverse action].”

Burdine, 450 U.S. at 255. Importantly, this does not mean that the employer must “persuade the

Court that it was actually motivated by the proffered reasons . . . .” Campbell v. Norfolk S.

Corp., 876 F. Supp. 2d 967, 982 (N.D. Ohio 2012) (citing Burdine, 450 U.S. at 254). Rather, the

employer’s burden is satisfied if it simply “explains what [it] has done” or “produces evidence of

legitimate nondiscriminatory reasons.” Burdine, 450 U.S. at 256 (citations and quotations

omitted); see also Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996) (“It is important to note that

the defendant need not prove a nondiscriminatory reason for not promoting [the employee] but

need merely articulate a valid rationale.”)

Defendant articulates that the legitimate, nondiscriminatory reason for Plaintiff’s

inclusion in their Covid-19 employee reduction effort was her performance issues and probation

status. (Doc. No. 22 at 383.) Defendant provides evidence in support of this reason. First,

Blake’s affidavit states that Covid-19 required Defendant to provide only drive-through services

at its branches, leading it to consider reducing staff. (Doc. No. 22-1 at 391-92.) Second,

Defendant directs the Court to two documents signed by Plaintiff, showing that Defendant

determined that Plaintiff violated its policies. (Doc. Nos. 22-3, 22-4.) These documents also

provide that Defendant placed Plaintiff on probation for these violations. (Id.) Third, Defendant

provides Plaintiff’s 2019 performance review, which establishes that Defendant documented

Plaintiff’s underperformance in numerous aspects of her role. (Doc. No. 27-4.) Fourth,

Defendant provides a document signed by Plaintiff on March 10, 2020, listing Plaintiff’s

numerous job responsibilities. (Doc. No. 22-8.)

Defendant has provided more than enough evidence to meet its burden. See Burdine, 450

U.S. at 254, 256. And Plaintiff does not argue otherwise. (See Doc. No. 27 at 575.)

4. Pretext

To prove pretext, the employee may show that the employer’s reason for the adverse

action either: (a) has no basis in fact, (b) did not actually motivate the employer’s actions, or (c)

was an insufficient motivator for the employer’s actions. Miles v. S. Cent. Hum. Res. Agency,

Inc., 946 F.3d 883, 888 (6th Cir. 2020). “The three-part test need not be applied rigidly. Rather,

‘[p]retext is a commonsense inquiry: did the employer fire the employee for the stated reason or

not?’” Blizzard v. Marion Tech. Coll., 698 F.3d 275, 285 (6th Cir. 2012) (quoting Chen v. Dow

Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009)). “Ultimately the plaintiff must produce

‘sufficient evidence from which a jury could reasonably reject [the employer’s] explanation of

why it fired her.’” Brown v. Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir. 2020) (quoting

Chen, 580 F.3d at 400) (bracketed language omitted).

Plaintiff attempts to prove pretext under the first and third methods. (Doc. No. 27 at

575.) In doing so, she argues that she performed her job well, as evidenced by the fact that she

met or exceeded Defendant’s sales expectations. (Id. at 575-76.) Plaintiff also contends that

Covid-19 was an insufficient motivator because Defendant did not terminate any male branch

managers, including ones who had their branches closed indefinitely. (Id. at 576.)

Defendant states Plaintiff’s performance issues and probation status led it to choose her

over other employees for a reduction-in-force. (Doc. No. 22 at 383.) At bottom, Plaintiff’s

pretext evidence must allow a jury to reasonably doubt that Plaintiff had performance issues or

that those performance issues were insufficient for Defendant to terminate an employee. See

Blizzard, 698 F.3d at 285

Plaintiff’s evidence does not achieve this objective. Plaintiff’s 2019 performance review

establishes that Defendant expected Plaintiff to do more than simply have satisfactory sales

numbers. (Doc. No. 27-4; see also Doc. No. 22-8.) Defendant has also produced evidence that

Plaintiff failed to fulfill some of these non-sales performance expectations and was placed on

probation as a result.3 (Doc. Nos. 22-3, 22-4; see also Doc. No. 27-4.) Defendant, moreover,

has established that Plaintiff was the most significant underperforming branch manager and the

only manager on disciplinary probation. (Doc. No. 22-1 at 391.) That Plaintiff performed some

parts of her job well and that higher-performing branch managers were not terminated is

insufficient to cast doubt on the substantial evidence supporting Defendant’s nondiscriminatory

reason for termination. Cf Chen, 580 F.3d at 401 n.5 (noting that employee’s evidence that she

performed some parts of her job satisfactorily is insufficient at the pretext stage to overcome

employer’s evidence that employee failed to perform numerous other job expectations

satisfactorily).

Because she cannot meet her pretext burden, Plaintiff cannot survive Defendant’s

summary judgment motion on her gender discrimination claims.

III. Conclusion

For the reasons stated herein, Defendant’s motion is GRANTED, and the case is

DISMISSED.

IT IS SO ORDERED.

__________________________________

BRIDGET MEEHAN BRENNAN

Date: September 11, 2023 UNITED STATES DISTRICT JUDGE

3 Plaintiff does not contend that the decisions to place her on probation twice were motivated by

discriminatory animus. At her deposition, when asked whether these “two pieces of discipline

were discriminatory,” Plaintiff answered, “No.” (Doc. No. 21-1 at 158.)