# Kovacs v. University of Toledo

> District Court, N.D. Ohio · January 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10372893

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** January 10, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10372893

## How later opinions describe it (automated extraction)

- stating that, where the findings of pretext on summary judgment are a close call and ultimately come down to a credibility determination, the district court should not grant summary judgment in the defendant’s favor

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Theresa A. Kovacs, Case No. 22-cv-2151

Plaintiff,

v. ORDER

University of Toledo,

Defendant.

This is a retaliation case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2. (Doc. 1). Defendant, the University of Toledo (“UT”) is a state university. Plaintiff was
an employee of the Defendant until her termination. Whereupon she filed this lawsuit.
On August 14, 2023, Defendant moved for summary judgment. (Doc. 18). On September
13, 2023, Plaintiff has filed an opposition1 (Doc. 31) and on October 17, 2023, Defendant filed a
reply (Doc. 33).
1. Background
a. Undisputed Facts
Plaintiff began working for Defendant’s Human Resources (“HR”) Department in 2003 as
a Senior Benefits Specialist. (Doc. 14-1, PageID. 151–152). Over approximately 18 years, Plaintiff
held different positions within the HR Department. (Doc. 18, PageID. 1048; Doc. 31, PageID.
2693). In April 2018, Defendant promoted Plaintiff to the position of Director, HR Academic,
Student Services & Administration. (Doc. 18, PageID. 1048; Doc. 31, PageID. 2693).

1 After initially filing an opposition (Doc. 27), Plaintiff filed an amended opposition (Doc. 31).
Plaintiff reported to former Associate Vice President and Chief Human Resources Officer
Wendy Davis, who is Black. (Doc. 18 at 1048; Doc. 31 at PageID. 2698). Davis reported to
Defendant’s Executive Vice President for Finance and Administration and Chief Financial Officer
Matthew Schroeder. (Doc. 18 at PageID. 1048; Doc. 31 at PageID. 2694). Schroeder, in turn,

reported directly to UT’s president, Gregory Postel. (Doc. 18, PageID. 1048; Doc. 31, PageID.
2692).
Defendant hired Postel as its Interim President in July 2020. (Doc. 18, PageID. 1049). UT
contends that one of Postel’s initiatives upon acting as University President was to modernize its
HR Department. (Doc. 18, PageID. 1049).
On September 22, 2020, two months after Postel became president, Schroeder announced
that UT terminated Davis. (Doc. 18, PageID. 1048; Doc. 31, PageID. 2698). Defendant hired John
Elliott and Melissa Hurst (both of whom are Caucasian) as Davis’ replacements. (Doc. 18, PageID.
1048).
In October 2020, before Davis’ last day, but after Defendant notified Davis of her removal,

Davis conducted Plaintiff’s annual performance review. (Doc. 31, PageID. 2694; Doc. 33, PageID.
2729). Consistent with Davis’ prior reviews of Plaintiff, Plaintiff received an overall rating of 4.2
(Doc. 31, PageID. 2693 (citing Doc. 25-1, PageID. 2613)).
Plaintiff began reporting to Elliott after Davis’ removal. (Doc. 18, PageID. 1049). Then,
beginning in mid-October 2020, Plaintiff began reporting to Hurst. (Id.; Doc. 31, PageID. 2700).
On November 6, 2020, approximately two months after having assumed their positions in
September 2020, Elliott and Hurst notified Plaintiff that effective December 1, 2020, they were
demoting her to the position of Senior HR Consultant. (Doc. 18, PageID. 1052; Doc. 31, PageID.

2 At the time, the University used a five-point scale and five was the highest possible rating.
2697). Plaintiff’s compensation remained the same. (Doc. 18, PageID. 1052). Neither party
disputes that Elliott and Hurst told Plaintiff that the main reason for her demotion was that she was
not effective in a leadership role. (Doc. 18, PageID. 1052; Doc. 31, PageID. 2697).
On January 4, 2021, Plaintiff began reporting to Jason Beck, whom she previously

supervised before her demotion. (Doc. 18, PageID. 1053). About one month later, on February 9,
2021, Elliott gave Plaintiff a 90-day termination notice. (Doc. 18, PageID. 1055; Doc. 31, PageID.
2700.) Elliott told Plaintiff that UT was terminating her because the University was “going in a
new direction.” (Doc. 31, PageID. 2700 (citing Doc. 14-1, PageID. 341)).
Plaintiff stopped working on February 9, 2021. (Id.) She received full pay through May 9,
2021. (Id.)
In her Complaint, Plaintiff alleges that the Equal Employment Opportunity Commission
(“EEOC”) notified her of her right to sue on September 2, 2022. (Doc. 1, PageID. 2). She alleges
she filed suit within the 90-day deadline for doing so. Plaintiff did not provide a copy of her EEOC
right-to-sue letter; however, Defendant does not challenge exhaustion or the timeliness of her

complaint.
Plaintiff filed her two-count Complaint on November 30, 2022. (Doc. 1). On December
29, 2022, Defendant filed an Answer. (Doc. 4). On January 18, 2023, the parties stipulated to
dismissal of one of Plaintiffs’ two claims. (Doc. 7). I granted the stipulation at a January 23, 2023
Status Conference. (See 1/23/2023 Minute Entry).
b. Disputed Facts: Plaintiff’s Position
The dispute in this case regards the reason for Plaintiff’s termination. Plaintiff argues that
UT fired her in violation of Title VII as retaliation for opposing an unlawful employment practice.
(See Doc. 1, PageID. 1). Defendant denies these allegations, arguing that it terminated Plaintiff for
legitimate and non-retaliatory purposes. (See Doc. 4, PageID. 67).
Plaintiff’s position is that her job performance for eighteen years at UT was exemplary.
(See e.g., Doc. 31, PageID. 2693). Then, beginning in September 2020, several events described

below occurred.
First, a Defendant employee, James Toth, who worked closely with Schroeder, decided to
promote another employee, Tracey Brown, to a new position. (Id. at PageID. 2695.) Toth wanted
to give Brown a new position without first posting the position publicly. (Id.) The promotion would
change Brown’s status from a union to a non-union job and would provide Brown with a raise.
(Id.)
On September 10, 2020, Schroeder asked Wendy Davis about Toth’s proposal to promote
Brown. (Id.) On October 5, 2020, Schroeder’s direct report, Sabrina Taylor, called Plaintiff to
check on the status of Brown’s promotion. (Id.) Plaintiff told Taylor that there were problems with
the proposal to promote Brown. (Id.) Plaintiff told Taylor that some of these problems involved

the union, the Office of Federal Contract Compliance Program, and Equal Employment
Opportunity (“EEO”) laws. (Id. at PageID. 2695–2696). She also told Taylor that Toth’s proposal
could have a “disparate impact” on minorities or other non-white applicants. (Id. at PageID. 2696).
The next day, on October 6, 2020, Schroeder called Plaintiff about Brown’s promotion.
(Id. at PageID. 2696). Plaintiff told Schroeder about the problems she identified with Toth’s
proposal to promote Brown. (Id.)
On October 12, 2020, Schroeder and Plaintiff spoke again. (Id.) Plaintiff repeated the same
concerns that she had already expressed in their last discussion. (Id.)
On October 20, 2020, Plaintiff emailed Elliott, her then-new supervisor. (Id.) In her email,
Plaintiff explained her concerns with Toth’s proposal to promote Brown. (Id.) She wrote:
Moving Tracey to the contract specialist position at this time places UToledo in a
compromising legal position as she does not meet the minimum (basic)
qualifications. Promoting an employee that does not meet the minimum
qualifications goes against EEO. To keep the process fair and equitable, the OFCCP
states to help keep everybody on the same page, carefully craft a job description for
the position, not for a person you would like to promote. The OFCCP also states
the basic qualifications which an applicant must possess means qualifications that
the employer advertised to potential applicants or criteria which the employer
established in advance.
To avoid potential disparate impact (disparate impact is often referred to as
unintentional discrimination), nonetheless, our practices must be uniformly and
consistently applied.
To remain compliant with established minimum qualifications, it would be best to
move Tracey into the proposed project assistant role; (changing the title to project
specialist), redo the proposed job description to align with the contract specialist
(and not reading anything like the office assistant 3).
(Id. (citing Doc. 15-1, PageID. 649–651, 709–710) (errors in original)).
That same day, Plaintiff participated in a call with Toth, Elliott, and two others about the
proposal to promote Brown. She repeated her concerns. (Id. at PageID. 2697).
Plaintiff alleges that Toth and Elliott did not agree with or approve of Plaintiff’s concerns.
(Id.) Instead, they approved Brown’s promotion. (Id.)
On November 6, 2020, seventeen days after the last time she expressed her concerns, Elliott
and Hurst met with Plaintiff. (Id.) At the meeting, Elliot and Hurst told Plaintiff she was demoted.
(Id.) Elliott and/or Hurst told Plaintiff that she was being demoted because she was not a good
leader. (Id.)
Plaintiff argues that the real reason Defendant demoted her was in retaliation for her
complaints about Brown’s promotion.
She also explains that, starting in fall of 2020, Defendant fired five Black employees. (Doc.
1, PageID. 9–10). All five terminated individuals later filed charges with the Ohio Civil Rights
Commission. (Id.) The Commission found probable cause that Defendant discriminated against all
five former employees based on race. (Id.)

By February 2021, the University had already fired three Black HR employees. They were
Wendy Davis, discussed above, Dreyon Wynn and Carolyn Chapman. Wynn was the Defendant’s
Director of Employee/Labor Relations and HR Compliance. (Doc. 31, PageID. 2698). Chapman
performed the same duties for Defendant as Plaintiff, except Chapman was on Defendant’s Health
Science Campus. (Doc. 18, PageID. 1048).
In January 2021, Elliott fired Wynn. (Id.). Wynn contacted Defendant’s Vice President of
Diversity and Inclusion (the “VP”). Wynn told the VP that Defendant had recently fired three
Black HR employees: himself, Davis, and Chapman. He also told the VP that Plaintiff, who is
white, was demoted instead of fired, and Plaintiff maintained her same pay rate. UT did not offer
any of the terminated Black HR employees the option to accept a demotion for the same pay, as it

had for Plaintiff. Wynn believed race discrimination was the reason for UT’s different treatment
of Caucasian and Black employees.
Wynn also emailed President Postel and a member of Defendant’s Board about his
termination and his concerns about discrimination.
The VP met with Schroeder about the issues Wynn raised. The VP also met with President
Postel. A meeting agenda item for their discussion was “HR terminations.” President Postel told
the VP that he would talk to Schroeder about the terminations.
On February 9, 2023, Elliot fired Plaintiff. Plaintiff notes that UT fired her just “fourteen
days after Wynn first notified several members of the University’s administration (including
President Postel) that [Plaintiff] was a white comparator to [Wynn], Chapman, and that people of
color in the HR Department had suffered discrimination at the hands of Matt Schroeder.” (Doc.
31, PageID. 2700.)
In sum, Plaintiffs’ position is that first, her demotion occurred only after she raised

concerns about promoting Brown without a public posting and the potential long-term deleterious
“disparate impact” this could have on minority UT applicants. (Id. at PageID. 2714). Second,
Plaintiff argues that Defendant would have terminated her for voicing her concerns over Brown’s
promotion, but because she is Caucasian, she was treated favorably and demoted. (Id.) Third, she
argues that, once the University higher-ups became aware that Black HR employees were fired
while Plaintiff was merely demoted, UT made the decision to fire Plaintiff. (See Doc. 31, PageID.
2714). Plaintiff states, “The University thought it could protect itself from the race discrimination
charges from Davis, Chapman, and Wynn if it also terminated a white HR Director—Kovacs.”
(Doc. 31, PageID. 2716).
c. Disputed Facts: Defendant’s Position

After Defendant hired President Postel in July 2020, Postel announced that one of the
University’s priority initiatives was HR modernization. (Doc. 18, PageID. 1049 (citing Schroeder
Dep. Trans., Doc. 17-1, PageID. 940– 942)); and see, UToledo President—Dr. Gregory Postel;
Tackling Challenges: 2020-22 Key Initiatives, https://perma.cc/WM3E-T9CY. Schroeder and
Elliott worked closely with Postel to implement this initiative. (Id.) Schroeder testified in his
deposition that the reason for this undertaking was the HR Department’s negative reputation
among University employees for being “a bureaucracy,” that was “essentially pushing paper.” (Id.;
citing Schroeder Dep. Trans., Doc. 17-1, PageID. o941).
One of the first steps that Defendant took in the HR modernization process was hiring
Elliott and Hurst. (Id. at PageID. 1046, 1049). Once hired, Elliott and Hurst began assessing HR’s
staffing, performance, and other processes. (Id.). Elliott came to believe that Plaintiff’s department
was generally slow to respond, had no development plans, no employee evaluations or

improvement plans, and no vision or strategy for building and improving on its performance. (Id.
at PageID. 1050).
Hurst adopted a similar attitude towards Plaintiff’s department. (Id.). Plaintiff, as the
department Director, was responsible for managing and supporting her department. (Id.).
Hurst assigned Plaintiff to manage two projects: (1) evaluating, formalizing, and managing
Defendant’s separation process; and (2) implementing a quarterly personnel action report for
submission to Defendant’s Board. (Id. at PageID.1050–1051).
Hurst believed that the first project would take Plaintiff approximately two to three weeks.
(Id. at PageID. 1051). Plaintiff never completed the first project. Despite several prompts and
requests for updates, Plaintiff likewise never completed the second project in a timely manner.

Defendant states that Plaintiff’s poor performance on these two projects led to her demotion
on November 6, 2020.
Plaintiff was no longer a supervisor after her demotion. (Id.) Plaintiff also began reporting
to Jason Beck, who Plaintiff previously supervised. (Id.) After Plaintiff’s demotion, Defendant
assigned her to mentor and train two other employees. (Id. at PageID. 1053).
Plaintiff told both her supervisor, Hurst, and Beck himself that she thought it was “bullshit”
that Beck was her supervisor. (Id.) Plaintiff also stopped attending meetings and “disengaged”
with her co-workers. (Id. at PageID. 1054). Additionally, the two employees Defendant assigned
to Plaintiff to mentor complained that Plaintiff was not training them properly. (Id.)
Around this time, Plaintiff approached Defendant’s Labor Relations Director and indicated
that she was not busy and that she wanted a new role. (Id.) The Labor Relations Director reported
Plaintiff’s comment to Elliott and Hurst. (Id.) This, Elliott later testified, was the last straw. Elliott
believed that this demonstrated “Plaintiff had no intention of embracing her new role, especially

considering her area was understaffed.” (Id. at PageID. 1055).
Per Defendant, Beck made the decision to terminate Plaintiff. (Doc. 18, PageID. 1055).
Hurst and Elliott agreed with Beck’s decision. (Id.) On February 9, 2021, Elliott and Beck gave
Plaintiff her ninety-day termination notice. (Id.)
2. Legal Standard
Defendants have moved for summary judgment on all claims. Established law provides
that summary judgment is appropriate where the evidence presented in the record shows that there
is no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c).
The moving party bears the initial burden of demonstrating the absence of a genuine issue

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If satisfied, then the non-
moving party “must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). I draw all justifiable inferences from
the evidence presented in the record in the light most favorable to the non-moving party. Woythal
v. Tex–Tenn Corp., 112 F.3d 243, 245 (6th Cir. 1997).
For the reasons that follow, I grant Defendant’s motion in part and deny it in part.
3. Discussion
a. Prima Facie Case of Retaliation
Defendant argues that Plaintiff fails to establish a prima facie case of retaliation. Section §
2000e–3(a) of Title VII provides:

It shall be an unlawful employment practice for an employer to discriminate against
any of his employees ... because [the employee] has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.
Thus, this section prohibits an employer from retaliating against an employee who has
“opposed” any practice by the employer made unlawful under Title VII. Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 578 (6th Cir. 2000).
The Sixth Circuit explains the elements of a retaliation claim:
To establish a prima facie case of retaliation under Title VII, Plaintiff must
demonstrate that: “(1) he engaged in activity protected by Title VII; (2) his exercise
of such protected activity was known by the defendant; (3) thereafter, the defendant
took an action that was “materially adverse” to the plaintiff; and (4) a causal
connection existed between the protected activity and the materially adverse
action.” Jones v. Johanns, 264 Fed. App’x 463, 466 (6th Cir. 2007) (citing Abbott
v. Crown Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003), and Burlington N.,
548 U.S. at 67–68, 126 S.Ct. 2405 (modifying the third element to require a
“materially adverse action” rather than an “adverse employment action”)). Title VII
retaliation claims “must be proved according to traditional principles of but-for
causation,” which “requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, ––– U.S. ––––, 133 S.Ct. 2517, 2533, 186
L.Ed.2d 503 (2013).
Laster v. City of Kalamazoo, 746 F.3d 714, 729–731 (6th Cir. 2017).
If the plaintiff sets forth a prima facie showing of these elements, then the burden shifts to
Defendant to “articulate some legitimate,” non-retaliatory reason for its actions. Dixon v.
Gonzales, 481 F.3d 324, 333 (6th Cir. 2007) (quotation marks and citations omitted). “If the
defendant satisfies its burden of production, the burden shifts back” to Plaintiff to demonstrate that
Defendant’s proffered reason was not the true reason for the employment decision. Id. This is
known as the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802–04 (1973). “Although the burden of production shifts between the

parties, the plaintiff bears the burden of persuasion through the process.” Dixon, supra, at 333.
Defendant challenges Plaintiff’s prima facie showing of the first and fourth elements of
retaliation: (1) that Plaintiff engaged in a protected activity; and (2) that Plaintiff has set forth a
causal connection between the protected activity and the materially adverse action. (See Doc. 18).
Protected Activity
Plaintiff argues that she engaged in a protected activity under Title VII. “[O]pposing any
practice that the employee reasonably believes to be a violation of Title VII” constitutes protected
activity. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000). A complaint to
management about discriminatory employment practices can constitute protected activity. Jackson
v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 344–45 (6th Cir. 2021) (citing Niswander v.

Cincinnati Ins. Co., 529 F.3d 714, 721 (6th Cir. 2008)). A plaintiff need not make such a complaint
“with absolute formality, clarity, or precision,” but the complaint must go beyond a “vague charge
of discrimination.” Jackson, supra, 999 F.3d at 345 (quoting Yazdian v. ConMed Endoscopic
Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015)).
Plaintiff argues that when she voiced her concerns with the proposal to promote Brown to
a newly-created position without publicly posting the job opening first, this qualified as a protected
activity. Plaintiff details the five communications where she stated her concerns. They are: (1) the
October 5, 2020 call with Taylor, where Plaintiff told Taylor that there were issues with the
proposal to skip public posting of the position, including problems under Equal Employment
Opportunity laws and the potential disparate impact on minorities or non-white applicants; (2) the
October 6, 2020 discussion with Schroeder, where Plaintiff repeated those same concerns; (3) the
October 12, 2020 discussion with Schroeder, where Plaintiff discussed the potential “disparate
impact on minorities” if the job was not publicly posted; (4) the October 20, 2020 email to Elliott,

which again discussed both Equal Employment Opportunity laws and “a potential disparate
impact, also known as unintentional discrimination;” and (5) the October 20, 2020 discussion with
Toth, Elliott, and Wynn in which she repeated her same concerns.
Defendant argues that none of these communications constitute a protected activity because
promoting Brown without posting the new position publicly does not actually violate the law under
Title VII. More specifically, Defendant argues that it should prevail because Plaintiff’s belief that
the law required the new position to be posted publicly was incorrect and unreasonable. (Doc. 18,
PageID. 1060).
I disagree with Defendant. “Under Title VII, an employee is protected against employer
retaliation for opposing any practice that the employee reasonably believes to be a violation of

Title VII.” Johnson, supra, 579 (emphasis added). In other words, “the only qualification that is
placed upon an employee’s invocation of protection from retaliation under Title VII’s opposition
clause is that the manner of his opposition must be reasonable.” Id. at 580 (emphasis added).
Moreover, the Sixth Circuit has long-held that: “A person opposing an apparently discriminatory
practice does not bear the entire risk that it is in fact lawful; he or she must only have a good faith
belief that the practice is unlawful.” Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d
1304, 1312–13 (6th Cir. 1989).
Here, Plaintiff voiced her belief that failing to publicly post the position would violate
EEOC laws and would have a potential disparate and discriminatory impact on minority
applicants. Booker clearly states that whether she was actually right or wrong about her belief is
not dispositive. Rather, Plaintiff need only have a “good faith belief” that Defendant’s failure to
post the job was unlawful. Plaintiff’s five communications, all similar to one another in content,
support her argument that she had a good faith belief that she was correct.

Defendant cites to two cases, which it incorrectly states foreclose Plaintiff’s argument. The
first case is Brinson v. Summit County, No. 21-cv-1638, 2023 WL 4085306 (N.D. Ohio June 20,
2023) (Lioi, C.J.). In Brinson, the defendant terminated the plaintiff from his position as director
of diversity at the Summit County Sheriff’s office. The plaintiff alleged, among other things, that
his termination was retaliatory in violation of Title VII. The plaintiff argued that when he tried to
provide diversity and inclusion training in the defendant sheriff’s office, the defendant fired him.
Before the defendant fired the plaintiff, the plaintiff and the sheriff held a meeting about
another employee who had raised allegations of race discrimination. The sheriff instructed the
plaintiff to take “a softer approach” to race-based inequity allegations. Id. at * 8. The plaintiff
interpreted the “softer approach” direction to mean that the sheriff was entirely prohibiting the

plaintiff from addressing race inequity. Id. He sent the sheriff an email summarizing this
interpretation of their discussion. The topic of race was, in the plaintiff’s words, “off the table.”
Id. But other than the “softer approach” discussion, the plaintiff did not have any other evidence
that he was entirely prohibited from addressing race discrimination.
Chief Judge Lioi, in evaluating whether the email was protected opposition activity under
Title VII, found that the email “does not amount to any reasonable opposition to discriminatory
practices.” Id. at * 15. Judge Lioi stated, that “at most,” the plaintiff “was opposing resistance to
his specific plan for addressing racial inequalities at the Sheriff’s Office.” Id. Accordingly, the
plaintiff’s email did not qualify as opposition to a discriminatory practice under Title VII; rather,
it reflected a disagreement over the plaintiff’s approach to performing his job duties. The plaintiff
set forth no other evidence besides his own conclusions that he, as the director of diversity, was
restricted from addressing race. This was not enough to constitute a protected activity.
The present case is different. Here, Plaintiff had five separate discussions with several

Defendant employees about her belief that failing to post the position would violate EEOC laws
and have a disparate impact on minority applicants. Unlike the plaintiff in Brinson, Plaintiff here
was not addressing Defendant’s feedback on her job performance. Nor is there any evidence that
Defendant took issue with the way in which Plaintiff communicated her concerns. Accordingly, I
reject Defendant’s argument that Brinson is on all fours with this case.
I also reject Defendant’s argument that Holden v. Owens-Illinois, Inc. is analogous.
Holden, 793 F.2d 745 (6th Cir. 1986). In Holden, the plaintiff worked for the defendant as its
affirmative action program manager. Id. at 746. One of her job duties was to “design and
implement affirmative action programs” to comply with an Executive Order. Id. After six months
of unsuccessfully trying to design and implement an affirmative action program, the defendant

fired the plaintiff. Id. The Plaintiff argued that she was fired for retaliatory reasons.
The Sixth Circuit held that because Title VII does not mandate affirmative action programs,
the plaintiff’s attempts to implement an affirmative action plan were not protected activities under
Title VII’s opposition clause. Id. The Sixth Circuit also noted that the plaintiff’s unsuccessful
performance of her job duties does not qualify as “opposition” in any event. Id. at 749. Rather, the
plaintiff’s activities were simply unsuccessful efforts to perform her job functions. Id. at 751. Just
because her job functions happened to involve affirmative action did not automatically qualify all
of her actions as protected under Title VII. Id.
Plaintiff here was not charged with implementing an affirmative action program. Rather,
she opposed a hiring process that she believed was discriminatory towards minorities and in
violation of EEOC law.3 Moreover, in the case Johnson v. Univ. of Cincinnati, the Sixth Circuit
clarified that “the scope of Holden extends “only to an employee who protests the implementation

of [an] affirmative action program.” Johnson, supra at 579. Therefore, I find that Holden does not
apply to this set of facts.
Next, Defendant incorrectly argues that Plaintiff needed to know Brown’s race before she
could take a stand against a hiring practice involving Brown. Defendant makes much of the fact
that, even at the time of her deposition, Plaintiff did not know Brown’s race. This argument misses
the mark.
First, Plaintiff’s concerns over Brown’s promotion did not stem from Brown’s race,
whatever it may be. Rather, Plaintiff was concerned about whether the failure to post a job publicly,
which Plaintiff believed the law required, would have a disparate impact on the diversity of
applicants other than Brown.

Second, the cases that Defendant cites for the proposition that Plaintiff needed to know
Brown’s race before she could take an overt stand against racism are Americans with Disabilities
Act (“ADA”) cases, not Title VII cases. (See Doc. 18, PageID. 1061 (citing Persinger v. Indus.
Fabricators, Inc., No. 2:19-cv-4583, 2021 WL 4288363 (S.D. Ohio Sept. 21, 2021), citing
Kimbrough v. Cincinnati Ass’n for Blind & Visually Impaired, 986 F. Supp. 2d 904, 916 (S.D.
Ohio 2013)). Both cases involved underlying claims that an employee was discriminated against
because of a disability. The plaintiffs in both cases reported their opposition to the disabled
employee’s treatment and later alleged that their employers retaliated against them for their

3 Although her reference may have been inapt, nonetheless it is clear she was seeking to enforce Title VII.
opposition. In both cases, an element to the plaintiff’s claim required that the plaintiff know about
the fired employee’s disability before lodging a complaint. Neither of the plaintiffs knew about
the fired employee’s disability, so their claims failed. Neither Persinger nor Kimbrough involved
a fact situation where a plaintiff spoke out about what she believed was an illegal hiring practice.

Plaintiff’s repeated objections had nothing to do with Brown individually. Instead, they
manifested her concern, as a member of the HR department, about the consequences of what to
her appeared to be a systemic change in past practices.4
Plaintiff here has adequately set forth a prima facie case that she was opposing conduct
that she reasonably believed violated Title VII. The content of her conversations with co-workers
and superiors, as well as her email to Elliott, are sufficient to constitute opposition activity under
Title VII. That she may have been wrong about what Title VII actually required in terms of job
posting does not change this outcome.5
Causal Connection
Defendant’s second challenge to Plaintiff’s prima facie case is that Plaintiff has not set

forth a causal connection between the protected activity and the materially adverse employment
action.
At the outset, there is some confusion in the record about what event Plaintiff is claiming
was the retaliatory action. Plaintiff’s complaint identifies two potential retaliatory actions: (1) her
demotion; and (2) her termination. Defendant points out that Plaintiff’s counsel represented to me

4 The fact that she may have been mistaken in her premise does not deprive her of her right under Title VII to
challenge UT’s failure to post in this case. Retaliatory conduct following an employee’s good faith, but possibly
mistaken understanding of Title VII, is actionable. Moreover, neither party indicates that Defendant ever
responded to Plaintiff with an indication that she was mistaken in her belief that this had a potential adverse
impact going forward on prospective minority employees.
5 To hold otherwise would potentially deter employees who have potentially meritorious concerns from voicing
them. See e.g., Simpson v. Vanderbilt University, 359 F. App’x 562, 570 (6th Cir. 2009) holding that the plaintiff’s
informal complaints about another individual’s behavior constituted protected activity, even if the behavior
complained of is ultimately found to be lawful.
that her client does not take the position that her demotion was materially adverse. Rather, counsel
represented that Plaintiff’s focus is on her termination.
However, nothing in the written record on the docket reflects that Plaintiff is basing her
retaliation claim on her termination only. Moreover, her opposition to Defendant’s motion for

summary judgment addresses both her demotion and termination. (See Doc. 31, PageID. 2710).
So, I must presume that she is pursuing claims regarding her demotion and termination. I
accordingly address both.
To establish the element of causal connection, Plaintiff “must produce sufficient evidence
from which one could draw an inference that the employer would not have taken the adverse action
against the plaintiff had the plaintiff not engaged in activity that Title VII protects.” Abbott v.
Crown Motor Co., Inc., 348 F.3d 537, 543 (6th Cir. 2003). “One way by which a plaintiff can
demonstrate a causal connection is to show close temporal proximity between the adverse
employment actions and the protected activity.” Taylor v. Geithner, 703 F.3d 328, 339 (6th Cir.
2013). However, the Sixth Circuit holds that, “where some time 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.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008).
Plaintiff’s argument for causal connection for both her demotion and termination is
temporal proximity. (Doc. 31, PageID. 2709). The protected activity took place between October
5, 2020 and October 20, 2020. (See, supra.) On November 6, 2020, Defendant demoted Plaintiff.
Defendant notified Plaintiff that she was fired over three-and-a-half months later, on February 9,
2021.
I find that Plaintiff has sufficiently set forth a temporal causal connection between her
protected activity and her demotion. The demotion occurred less than two weeks after her last
protected activity. This is close enough in time to satisfy a prima facie causal connection on its
own.

However, Plaintiff needs more than just temporal proximity to demonstrate that her
termination was connected to the protected activity because several months passed between the
two events. The delay between the protected activity and the termination—nearly four months—
is too long for temporal proximity alone to suffice for a causal connection. See Kenney v. Aspen
Technologies, Inc., 965 F.3d 443, 449 (6th Cir. 2020) (“[A] roughly 75-day delay between her
protected activity and an adverse employment action is not, standing alone, a convincing case for
proving causation.”); Imwalle v. Reliance Med. Prods., 515 F.3d 531, 550 (6th Cir. 2008) (“In this
circuit, a period of more than four months was found to be too long to support an inference of
causation.”).
Plaintiff’s additional evidence of a causal connection is not sufficient. First, she argues

that: “The shadow of Matt Schroeder lurks behind both of the adverse actions suffered by Kovacs.”
(Doc. 31, PageID. 2710). However, no actual evidence supports her argument that Schroeder had
a role in her termination. Rather, the record demonstrates that Beck and Elliott terminated Plaintiff;
not Schroeder. Plaintiff’s arguments that Schroeder was “enmeshed” in her termination are
supposition and are unsupported.
Second, Plaintiff points to the fact that Defendant fired three Black employees, including
Wynn, before Plaintiff was terminated on February 9, 2021. Wynn, as discussed, above, named
Plaintiff in his complaint to the VP as an example of a Caucasian employee who Defendant
demoted, rather than fired. Plaintiff argues that she was fired just days after Wynn’s complaint.
Wynn complained to the VP and other Defendant employees on January 26 and 27, 2021.
Defendant fired Plaintiff soon after on February 9, 2021. Plaintiff’s argument is that the temporal
proximity between Wynn’s allegation of race discrimination and Plaintiff’s firing is enough to
establish cause. I disagree.

Plaintiff cites the case Maseru v. Univ. of Cincinnati, Case No. 18-cv-106, 2022 WL
7506368 (S.D. Ohio Oct. 13, 2022). There, the district court was tasked with deciding the
defendant’s motion in limine. The defendant sought to exclude other alleged acts of discrimination
against the University at trial because such other acts were irrelevant, unfairly prejudicial, and
potentially confusing to the jury under Federal Rule of Evidence 403. The district court agreed,
except as to acts of discrimination in the same department as the plaintiff. The Court cited the
following: “Evidence that an employer engaged in a pattern or practice of discrimination may be
relevant to proving an otherwise-viable individual claim for disparate treatment under the
McDonnell Douglas framework.” Megivern v. Glacier Hills Inc., 519 F. App’x 385, 399 (6th Cir.
2013).

Plaintiff here extrapolates this citation to stand for the proposition that evidence of a pattern
of discrimination can be prima facie evidence supporting an individual claim for retaliation under
Title VII. But that is not what the Court was evaluating in Maseru. Nor was the Maseru motion
decided under the summary judgment standard applicable here. Plaintiff does not cite a case where
a pattern or practice of discrimination can be used to overcome a motion for summary judgment
on the causal connection element of a retaliation claim. A court’s evaluation of a motion in limine,
taken out of context, is not enough to meet Plaintiff’s burden.
Again, it is Plaintiff’s prima facie burden to demonstrate that her protected activity is
causally linked to her termination. Temporal proximity is not sufficient where several months
passed between the protected activity and the termination. Vague accusations about Schroeder’s
lurking presence are not sufficient either. Plaintiff’s argument regarding Wynn’s complaint
naming her is also insufficient because Plaintiff has not set forth a legal basis on which I can rely
on this additional fact as cause for her firing.

Wynn complained to the VP of Diversity, the University President, and a Board Member.
None of these three individuals are alleged to have any link, whatsoever, to Elliott and Beck’s
decision to terminate Plaintiff. Nor has Plaintiff set forth any evidentiary support that Elliott and
Beck even knew about Wynn’s complaint.
Accordingly, I find that Plaintiff has not set forth a prima facie case demonstrating a causal
link between the protected activity and her termination. I grant summary judgment in Defendant’s
favor on Plaintiff’s termination claim.
b. Legitimate Non-Retaliatory Reason and Pretext
Plaintiff has set forth a prima facie case for her demotion claim. Under McDonnell
Douglas, “the burden shifts to the defendant to articulate a nondiscriminatory reason for its actions.

The defendant bears only the burden of production; the burden of persuasion remains with the
plaintiff at all times.” Mickey, supra, at 526.
As set forth in the background section, above, Defendant has set forth several legitimate
and non-retaliatory reasons for her demotion. These reasons include Plaintiff’s failure to perform
the two projects that Hurst and Elliott assigned to her. The projects were: (1) evaluating,
formalizing, and managing Defendant’s separation process; and (2) implementing a quarterly
personnel action report for submission to UT’s Board. Defendant also based its decision to demote
Plaintiff on Elliott and Hurst’s findings that Plaintiff’s department performed poorly. Plaintiff did
not remedy those performance issues through her work on the two assigned projects. Indeed,
Defendant indicates she failed to complete either project. Defendant determined that Plaintiff was
not leadership material, so it demoted her to a non-supervisory role.
Under McDonald Douglas, now that Defendant has articulated a legitimate, non-retaliatory
reason for her demotion, “the plaintiff may then show that the defendant’s stated reason is merely

a pretext for retaliation. Mickey, supra, at 526.
“A plaintiff can demonstrate pretext by showing that the proffered reason (1) has no basis
in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to
warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000). The
“plaintiff must produce sufficient evidence from which the jury could reasonably reject [the
defendants’] explanation and infer that the defendants ... did not honestly believe in the proffered
nondiscriminatory reason for its adverse employment action.” Braithwaite v. Timken Co., 258 F.3d
488, 493–94 (6th Cir. 2001) (internal quotations and citations omitted). To show an honest belief,
“the employer must be able to establish its reasonable reliance on the particularized facts that were
before it at the time the decision was made.” Smith v. Chrysler Corp., 155 F.3d 799, 806–07 (6th

Cir. 1998).
Plaintiff sets forth arguments under Dews categories (1) and (3). Plaintiff proffers the
following arguments: (1) that employees who worked with Plaintiff for longer than Elliott and
Hurst found her to be “a strong leader,” an “outstanding supervisor and mentor” and “very
approachable;” (2) that before she was demoted, Elliott and Hurst told Plaintiff she was doing
“great;” (3) that Elliot did not assess Plaintiff; (4) Hurst, on the other hand, assessed Plaintiff. She
did so, however, after only five weeks of observation; (5) “Kovacs, Reinhart, Fahey, Fisher and
documentary evidence” contradicted the reasons Elliott and Hurst gave for demoting Plaintiff; and
(6) that Elliott and Hurst “owed their positions at the University solely to Schroeder.” (Doc. 31,
PageID. 2712–2713).
I find this issue to be a close one. Plaintiff’s arguments that other employees found her
leadership and mentoring to be “strong” or “outstanding” does not mean that her performance

could not have been strong at times and be weak in other areas. That Elliott may have told Plaintiff
that she was “great” when he first came on board could have been an off-hand comment rather
than an evaluation of her performance. That Hurst observed Plaintiff for five weeks before
evaluating her is not per se too short a time-period for a thorough evaluation, though, it clearly
does not constitute Plaintiff’s entire time at UT. Plaintiff also argues that there is “other
documentary evidence” including testimony by herself and other employees that contradict
Defendant’s reasons for her demotion. But Plaintiff fails to explain what exactly that evidence is.
It is Plaintiff’s burden to do so. And lastly, Plaintiff’s arguments that Elliott and Hurst’s ties to
Schroeder do not support her argument that she was demoted on a pretext because she has not set
forth any evidence that Schroeder was a decisionmaker in Plaintiff’s demotion.

In short, Plaintiff has set forth very little in terms of pretext to overcome Defendant’s
legitimate, non-retaliatory reasons for her demotion. Yet, it is not up to me to decide which side is
more credible. That is the job of a jury. I find that the totality of the evidence in the record, when
viewed in the light most favorable to Plaintiff, does not lead Defendant-favorable conclusion.
Accordingly, I decline to grant summary judgment in Defendant’s favor on the issue of
Plaintiff’s demotion. See Imwalle, supra, at 551 (stating that, where the findings of pretext on
summary judgment are a close call and ultimately come down to a credibility determination, the
district court should not grant summary judgment in the defendant’s favor).
4. Conclusion
Relative to the termination, I conclude that Plaintiff’s showing that she engaged in a
protected activity would clearly suffice. But Plaintiff fails to meet her burden of establishing a
causal connection between the protected activity and her termination. In the Sixth Circuit, the

temporal gap between the protected activity and her termination of nearly four months is too great
to suffice as a causal connection on its own. As additional evidence of a link, Plaintiff discusses
only suppositions and speculation about Schroeder, Wynn, Postel, and others. But she has not
established that any of these individuals had anything to do with Elliott and Beck’s decision to
terminate her.
Relative to the demotion, I conclude that Plaintiff has met her prima facie burden under
McDonnell Douglas.
It is, therefore,
ORDERED THAT:
1. Defendant’s motion for summary judgment be, and hereby is, granted in part and

denied in part. Defendant’s motion is granted as to Plaintiff’s termination claim and is
denied as to Plaintiff’s demotion claim.
SO ORDERED.
/s/ James G. Carr
Sr. U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10372893. Public record. Not legal advice.