Gadagbui v. Upside Innovations, LLC

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SENA GADAGBUI,

Case No: 1:19-cv-48

Plaintiff, Bowman, M.J.

v.

UPSIDE INNOVATIONS, LLC,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Sena Gadagbui (“Gadagbui”) filed suit against her former employer,

alleging that Upside Innovations, LLC (“Upside”) engaged in unlawful discrimination when

Upside fired her after she informed Defendant that she was pregnant.1 Defendant has

filed a motion for summary judgment. On July 10, 2020, counsel appeared before the

undersigned for oral argument. For the following reasons, Defendant’s motion will be

GRANTED.

I. Standard of Review

In a motion for summary judgment, “a court must view the facts and any inferences

that can be drawn from those facts ... in the light most favorable to the nonmoving

party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (internal

quotation marks omitted). “Summary judgment is only appropriate ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

1The parties have consented to the exercise of plenary jurisdiction by the undersigned magistrate judge.

See 28 U.S.C. § 636(c).

moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P.

56(c)) (internal quotation marks omitted). “Weighing of the evidence or making credibility

determinations are prohibited at summary judgment-rather, all facts must be viewed in

the light most favorable to the non-moving party.” Id.

The requirement that facts be construed in the light most favorable to the Plaintiff,

however, does not mean that the court must find a factual dispute where record evidence

contradicts Plaintiff's unsupported allegations. After a moving party has carried its initial

burden of showing that no genuine issues of material fact remain in dispute, the burden

shifts to the non-moving party to present specific facts demonstrating a genuine issue for

trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct.

1348 (1986). “The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v. Toledo

Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen–Bradley Co., 801 F.2d

859, 863 (6th Cir. 1986)). In order to defeat the motion for summary judgment, the non-

moving party must present probative evidence that supports its complaint. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505 (1986). The non-moving

party's evidence “is to be believed, and all justifiable inferences are to be drawn in his

favor.” Id. at 255, 106 S.Ct. 2505. The court determines whether the evidence requires

submission to a jury or whether one party must prevail as a matter of law because the

issue is so one-sided. Id. at 251–52, 106 S.Ct. 2505. To demonstrate a genuine issue of

fact, the opposing party “must do more than simply show that there is some metaphysical

doubt as to the material facts.... Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citation omitted).

Plaintiff filed suit after she was informed that her position was being eliminated.

The parties have agreed on some, but not all, findings of fact. (See Docs. 23-1, 25-1).

Pursuant to the above standards, where any dispute exists, all reasonable inferences

have been construed in Plaintiff’s favor.

Upside is a small business that sells wheelchair ramps, ADA compliant steps,

OSHA stair systems, stair systems, and canopy and walkway covers. Kevin Sharp is the

President of Upside. Upside works with a third party placement agency, Vernovis, Ltd.,

to assist with interviews and recruiting. Peter Olmstead, an employee of Vernovis, helped

Upside screen applicants for an Accounting and Human Resources Manager after Amy

Langford, who held the position, accepted a job with another company.

In December 2017, Gadagbui applied for that position. The duties of the position

included: completing month-end accounting transactions; providing weekly financial

analysis regarding company performance; processing weekly payroll; processing

prevailing wages; analyzing customer credit applications; managing banking

relationships; ensuring the company stays within cash flow plans; providing information

and answering questions regarding annual tax filings to the company’s accounting firm;

working with the president to develop annual plan; and managing direct report and any

audits as needed. After interviewing Gadagbui, Sharp concluded that she did not have

broader accounting experience and would be “pretty green” on the “HR portion,” but “from

a technical skills perspective … will be fine with the accounting and finance portion of the

position….” Others, including Langford, agreed.

Plaintiff had little experience in several accounting tasks that she was expected to

perform and required training. Langford left Upside close in time to Gadagbui beginning

after Plaintiff began work on January 2, 2018, he quickly realized her deficiencies, and by

February 6, 2018 knew that Upside was “in some trouble” with Plaintiff’s perceived lack

of accounting skills. He believed that Gadagbui either did not have the necessary

knowledge to perform basic cash balancing or did not realize the urgency to complete it

on a timely basis.

Plaintiff testified that “I’m sure I made mistakes, but I would always be sure to ask

Kevin or Amy for help.” (Doc. 18 at PageID 140). She states that any errors were mere

“clerical mistakes.” (Doc. 25-1 at Finding 7). Plaintiff admits that she did not close the

books at the end of January, but asserts that delay was due to the fact that December

had not been closed when she began employment. Gadagbui attributes perceived

deficiencies in her performance to Upside’s failure to provide her with adequate training.

(See Doc. 18 at PageID 148-150).

By February 7, 2018, Upside began searching for an accounting consultant to

assist with its accounting backlog and to train and evaluate Gadagbui. Upside returned

to Vernovis to identify candidates who could “setup proper processes, procedures, and

evaluate/mentor the current person who is in the role.” (Doc. 22 at PageID 499). On

February 12, 2019, Vernovis posted an Accounting & Finance Service Contract job. The

advertisement read, in part:

The company has decided to launch Mei Trak ERP system. They need a

resource to come in, help setup the chart of accounts, map data from the

old system to the new system, map out what needs to go where, setup the

cost accounting. Start ASAP – go 60 days or so. Currently they have an

accountant. They are not sure if they are the right fit yet. Our consultant

would also setup the proper processes, procedures and evaluate/mentor

2Compare Doc. 18 at PageID 145 (Plaintiff’s testimony that she and Langford worked together for two to

five days prior to Langford’s departure) with Doc. 22 at PageID 376-377 (Sharp’s testimony that there was

not an overlap but that Langford came in “a couple times” after Plaintiff began work).

will be looking for another resource… of which the consultant may be

considered for that.

(Doc. 22 at PageID 500, emphasis added).

On February 14, 2018, after Upside sought out a consultant to help train and

evaluate her performance, Gadagbui first informed Upside that she was pregnant.

Gadagbui indicated her pregnancy was a surprise and that she was not initially happy

about it. Sharp and Amy Gogul, Upside’s Director of Operations, exchanged the following

contemporaneous messages:

[Sharp:] I wasn’t really sure how to react to Sena’s news today. She didn’t

seem to[o] excited. After she said something like, “I was breastfeeding and

wasn’t having my menstrual cycle so I didn’t think this would happen.” I

think my response was “Well there is quite a bit of general understanding

how these things happen.” Super awkward conversation!!!!

…

[Gogul:] My conversation with Sena was very similar… very awkward.

(Doc. 23-1 at Finding 15). Sharp also sent the following message to Langford: “Sena

told me that she’s 15 weeks pregnant. It was a very awkward conversation. She didn’t

seem to be happy, so I was not sure what my response was supposed to be…” (Doc. 22

at PageID 528).

On February 23, 2018, Sharp was informed that a candidate had been found “who

can help [Upside] catch up on our accounting backlog, assist in the ERP accounting

transition and help Sena while assessing whether or not she is able to execute in this

role.” (Doc. 22 at PageID 532-533). On March 5, 2018, Upside hired Victor Crainich III

through Vernovis as an accounting consultant. Crainich accepted the 30-60 day contract

position with understanding that he was to train and assess Gadagbui, as well as perform

other accounting tasks described in the job post.

end closing but Gadagbui still had not completed the January or February 2018 month-

end closings. Therefore, he and Gadagbui worked to complete those closings. Crainich

testified he taught Gadagbui how to properly close a month. (Doc. 20 at PageID 305-306,

309-310). Crainich created additional accounting processes and Gadagbui was receptive

to the training that he provided. However, Crainich evaluated Gadagbui’s accounting

abilities and capabilities negatively, concluding that she was not qualified for the position.

He communicated his assessment to Sharp.

Soon after Crainich began, Sharp determined that he had superior accounting

skills not only to Gadagbui, but that Crainich was also superior to Amy Langford, Plaintiff’s

predecessor. Sharp testified that observing Crainich allowed him to appreciate the type

of accounting services that could be provided, which he previously did not know existed.

For example, Crainich began providing Sharp with new reports showing cash flow, short-

term cash forecasting, and long-term cash forecasting. (Doc. 22 at PageID 443-446).

Comparing the assessment of Plaintiff with his more favorable evaluation of

Crainich, Sharp concluded that Gadagbui could not provide the type of accounting

services Upside needed. Sharp and others began discussing how Upside should

restructure the Accounting Department, including whether or not to retain or eliminate

Plaintiff’s position and/or a separate accounting assistant position then occupied by Alex

Williams. Sharp determined that Upside should create a new Controller position and

eliminate either Williams or Gadagbui or possibly both, and went “back and forth” on that

decision until shortly before he terminated Gadagbui. (Doc. 22 at PageID 441-442, 459-

460). Sharp testified that he decided to keep Williams in the accounting assistant role to

support the Controller.

position of Controller to handle higher-level accounting functions. (Doc. 22 at PageID

443-446, 452-456 and 570). That same day, Sharp sent Olmstead an email stating his

intention to eliminate Gadagbui’s position. In the email, he attached Gadagbui’s job

description and asked Olmstead to create a job description for the new Controller position.

When finalized, the Controller description required 7 years of accounting experience and

a CPA, both of which Crainich possessed but Plaintiff did not. (Doc. 22 at PageID 578).

On March 29, 2018, Sharp notified Gadagbui that her position had been eliminated and

that her employment was being terminated effective immediately.

Plaintiff disputes that the Controller position was created out of business necessity

and maintains instead that it was created as a pretext to terminate her. However, Upside

did not hire a direct replacement for Plaintiff and has continued to employ a Controller

since terminating Plaintiff.

On April 9, 2018, Plaintiff filed an EEOC Charge that alleges that she was

terminated based upon her sex (female) and condition of pregnancy, based upon

Defendant’s hiring a male consultant on a date shortly after Defendant learned of her

pregnancy, and her subsequent termination. (Doc. 18 at PageID 288). After receiving

her “Right to Sue” Notice, Plaintiff timely filed a federal complaint alleging that she was

terminated based upon her pregnancy.3

III. Analysis

A. Plaintiff’s Burden to Establish a Prima Facie Case

Plaintiff’s complaint alleges that Defendant discriminated against her based upon

3Plaintiff does not argue here that Upside discriminated against her in any way independent of her

pregnancy.

Rights Act, O.R.C. § 4112.01 et seq. In the absence of any direct evidence of

discrimination,4 Plaintiff must prove her claims through indirect or circumstantial evidence.

Under the indirect evidence framework, the plaintiff first has the burden of proving a prima

facie case of discrimination; if she is successful, the burden then shifts to the defendant

to articulate a legitimate, nondiscriminatory reason for its actions; finally, the plaintiff has

the opportunity to prove that the proffered reason is pretextual. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817 (1973). “On a motion for summary

judgment, a district court considers whether there is a sufficient evidence to create a

genuine dispute at each stage of the McDonnell Douglas inquiry.” Latowski v.

Northwoods Nursing Center, 549 Fed. Appx. 478, 483 (6th Cir. 2013) (quoting Cline v.

Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)).

To prove her prima facie case here, Plaintiff must show: (1) she was pregnant, (2)

she was qualified for her job, (3) she was subjected to an adverse employment decision,

and (4) there is a nexus between her pregnancy and the adverse employment decision.”

Cline, 206 F.3d at 658. Plaintiff was pregnant, and began working as Upside’s Accounting

and Human Resource Manager in January 2018 before being terminated less than three

months later. Solely for the purposes of the pending motion, Defendant “assumes” that

Plaintiff can establish her prima facie case. (Doc. 23 at 12). In light of this concession,

the burden shifts to the Defendant to articulate a legitimate, nondiscriminatory reason for

its actions.

4Plaintiff does not argue that she has direct evidence to prove her claims.

Plaintiff argues that Upside has not clearly articulated a legitimate, non-

discriminatory reason for her termination. The undersigned disagrees. At the March 29,

2018 termination meeting, at which Olmstead was present, Sharp told Gadagbui that he

“could not afford both [Crainich] and me” and that he had “made a mistake.” (Doc. 18 at

PageID 205, 210). Upside stated that the company had re-evaluated its needs and was

moving in a different direction, with the elimination of her position effective immediately,

but that Upside would pay her severance pay. A termination letter provided to Plaintiff at

the time similarly stated that Upside had decided to eliminate Plaintiff’s position after a

“reevaluation of the needs of the business and the redesign of the Accounting and

Finance function.” (Doc. 18 at PageID 209, 286). It is undisputed that Upside hired

Crainich into a newly created Controller position. While Plaintiff may argue that the

Defendant’s articulated reasons for the elimination of her position were a pretext for

discrimination, the articulated reasons are facially neutral.

C. Plaintiff Fails to Raise a Genuine Issue of Material Fact on Pretext

Because the Defendant has articulated a legitimate reason for its termination of

Plaintiff, in order to survive summary judgment, Plaintiff must come forward with enough

evidence to create a genuine issue of material fact about whether the Defendant’s stated

reasons were in fact pretextual. See Logan v. Denny’s, Inc., 259 F.3d 558, 567 (6th Cir.

2001). The evidence must be sufficient that a “jury may reasonably reject the employer’s

explanation.” Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078,1083 (6th Cir.

1994). By contrast, a defendant will be entitled to summary judgment where a plaintiff

produces less than a preponderance, or no more than a scintilla, of evidence to

demonstrate pretext. See Hedrick v. Western Reserve Care, 355 F.3d 444, 461 (6th Cir.

preponderance of the evidence, that [employer’s] proffered reason for not hiring her…was

a pretext for age discrimination.”) “At the pretext stage, the plaintiff’s burden of production

‘merges’ with his ultimate burden of persuasion to show that … discrimination” motivated

her termination. Willard v. Huntington Ford, Inc., 952 F.3d 795, 807 (6th Cir. 2020)

(internal citations omitted).

Pretext can be shown in one of three ways: by offering evidence that 1) the

employer’s stated reason had no basis in fact; 2) the stated reason did not actually

motivate the employer; or 3) the stated reason was insufficient to warrant the adverse

employment action. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.

2001) (citing Manzer, 29 F.3d at 1084). The three-part test to show pretext “need not be

applied rigidly” but rather “is a commonsense inquiry.” Blizzard v. Marion Tech. College,

698 F.3d 275, 285 (6th Cir. 2012).

In general, Plaintiff points to five factors that she maintains prove that Upside’s

decision had “no basis in fact.” As discussed below, she contends that temporal

proximity, a change in Upside’s articulated reasons, the initial lack of a written job

description for the Controller position, allegedly weak contemporaneous documentation,

and isolated verbal references to her pregnancy are sufficient to show pretext. However,

Plaintiff offers nothing more than her own speculation to support her various hypotheses.

Such conjecture is insufficient to create a genuine issue of material fact on pretext

1. Plaintiff’s Minimal Evidence Beyond Temporal Proximity

An old adage says that timing is everything. Plaintiff first argues that she has

established pretext based on the temporal proximity between the announcement of her

pregnancy on February 14 and Upside’s decision to eliminate her position approximately

establish pretext, she argues that she has “other, independent evidence” that in

combination with temporal proximity is sufficient. See Seeger v. Cincinnati Bell

Telephone Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012). Plaintiff asserts that Sharp’s

demeanor toward her changed from a friendly tone immediately before her pregnancy

announcement to a more hostile tone after she told him she was pregnant. However, the

evidence on which Plaintiff relies suggests no more than a “scintilla” of pretext.

It is true that Plaintiff was not terminated for her deficient performance. However,

this is not a case in which Plaintiff was a longstanding, high-performing employee who

suddenly was evaluated more negatively after she became pregnant. Plaintiff was a new

employee with known deficits who was expected to grow into her position. Plaintiff’s

undergraduate degree was in philosophy, but she earned a master’s degree in accounting

from DeVry University in 2016 through a combination of in person and on-line classes,

while continuing to work full-time. (Doc. 18 at PageID 67, 70) She had taken no

accounting courses prior to obtaining her master’s degree. (Id. at PageID 68). The job

description for her position listed the necessary “qualifications and skills” as including a

bachelor’s degree in accounting (or the equivalent) and ERP implementation “familiarity,”

which Plaintiff testified that she had. However, additional prerequisites included five

years’ experience in an accounting role, experience with cash and accrual accounting,

job costing and manufacturing accounting expertise, with “multistate sales tax compliance

and registration familiarity a bonus.” (Doc. 18 at PageID 255). Plaintiff admitted she did

not have any of those “qualifications and skills” when she was began her employment

with Upside. (Doc. 18 at PageID 121-122; Id. at PageID 255).

By the end of her first month of employment, Upside was concerned with her ability

2018, 8 days before Plaintiff informed Defendant that she was pregnant, he believed that

Upside was “in some trouble” with perceived deficiencies in her accounting abilities. (Doc.

22 at PageID 403-404). Corroborating that testimony, Upside contacted Vernovis

between February 7 and February 12 in order to hire an accounting consultant to assist

with training and assessing Plaintiff. An advertisement stated: “Currently they have an

accountant. They are not sure if they are the right fit yet. Our consultant would also setup

the proper processes, procedures and evaluate/mentor the current person who is in the

role. If that person isn’t the right fit, they will be looking for another resource… of which

the consultant may be considered for that.” Thus, the record is undisputed that Upside

was “not sure” if Plaintiff would remain in the position, and required someone to help

“evaluate/mentor” Plaintiff. (Doc. 22 at PageID 500, see also generally, id. at PageID 499-

517). The record contains several exhibits that reference the need for the consultant to

help “catch up on [Upside’s] accounting backlog, assist in the ERP accounting transition

and help [Plaintiff] while assessing whether or not she is able to execute in this role.”

(Doc. 22 at PageID 532-33). Regardless of Plaintiff’s subjective view of her own

performance, the objective record confirms Upside’s concerns about Plaintiff’s

performance prior to any knowledge of her pregnancy.

After Upside began seeking a consultant, on February 14, Spark sent Plaintiff the

following email:

Sena,

I was thinking that it might be a good idea to get a little more organized in

regards to your on-boarding as I know I have not done a great job with this.

I put together a training matrix that I would propose that we start working

through to make sure we are getting everything that you need.

get it in front of you electronically. Some of these items are going to be me

training you and some of them will be Amy G.

We can talk once you have a little time.

(Doc. 22 at PageID 524).

Plaintiff characterizes this email as an admission by Sharp “that he had been

deficient in his promise to train her.” (Doc. 25 at 11). However, the email clearly relays

that Plaintiff was underperforming, consistent with Upside’s ongoing search to hire a

consultant who could both train and evaluate her. Although the email refers to a new

electronic version of a “training matrix” to provide a more “organized” format for training,

the same email alludes to previously-provided information “already… in your office” and

Plaintiff’s need to “work through” the tasks with Sharp and Amy G.

Within an hour of receiving the email, Plaintiff met with Sharp and she informed

him she was pregnant. The next day, Sharp sent Plaintiff a follow-up email:

Sena,

I am hoping that you take the lead in driving your training from here on out.

I believe we have a pretty good list of things that you need to be proficient

with. I want you to reach out to Amy G and I to schedule a time to go through

the matrix and then schedule the time for us to actually train you on each of

the items.

So far, I feel like you are being a little timid here. I feel like you need to ask

more questions when you are unsure of what to do. There is obviously a

lot on your plate here, but I don’t have a good understanding of what

functions within our accounting processes are getting done on a routine

basis and what aren’t. I am hoping the training matrix will shed a little more

light on that for us all.

(Doc. 22 at PageID 529).

Plaintiff argues that the second email, after her pregnancy announcement,

demonstrates pretext based on Plaintiff’s subjective perception of a dramatic change in

for failing to train her and instead held Plaintiff responsible. The undersigned cannot

agree. Even without any background context, the second email speaks for itself and does

not exhibit the type of change in tone that Plaintiff suggests.

Defendant persuasively argues that when Plaintiff failed to act quickly after being

provided the electronic training matrix, Sharp simply asked her to take the lead in

scheduling time with him and Gogul for training. Sharp testified that the company was in

the midst of changing its accounting system from Quickbooks to ERP. The record reflects

that Sharp sent the follow-up email after an additional text message exchange with

Langford:

Sharp: “How much interaction are you having with Sena? I’m trying to figure

out why she isn’t asking questions.”

Langford: “Varies. Usually a couple days during the week but more

frequently during the day…*meant several times a day on the days she’s in

contact.”

Sharp: “Crap. I sent her a training matrix and told her that she needs to ask

Amy G and I more questions.”

(Doc. 22 at PAGEID 530-31. The February 15 email does no more than emphasize

Plaintiff’s need to take ownership of her own training on the matrix tasks, something that

Sharp was concerned she still was not doing even after he provided her with the matrix.

Considering that Plaintiff’s initial deficiencies were significant enough that Upside was

seeking an additional consultant beyond Langford to train and evaluate her, the subtle

change in tone between the two emails cannot reasonably be viewed as evidence of

pretext.

Although Upside sought to hire a consultant before learning of Plaintiff’s

pregnancy, Crainich did not begin work until March 5, 2018, after Upside learned Plaintiff

“learn how…to close a month properly.” (Doc. 20 at PageID 309). Within his first two

weeks, he concluded that Plaintiff was not qualified for the position. (Id. at PageID 310).

He opined that she “was not aware of when and how different transactions that would

come up, how they would reflect or should reflect in financial statements. She did not

know how to implement.” (Id.; see also id. at PageID 310-315, 320, 324-38; see also

Doc. 22 at PageID 543-44; 547-49).

In contrast to Sharp’s initial impression of Plaintiff, Sharp was quickly impressed

with Crainich. Crainich provided him with several new types of cash accounting reports

that helped Upside better evaluate its business, that Sharp had not been aware could be

generated. Soon after hiring Crainich, Upside decided to create a permanent Controller

position and hire Crainich into that role.

Plaintiff does not dispute that Crainich had accounting skills and experience that

she lacked. However, she denies that Upside created the Controller position for any

legitimate business reasons. Instead, she argues that the creation of the Controller

position with its more demanding prerequisites was a pretext to terminate her based upon

her pregnancy. As evidence, Plaintiff complains that after Crainich began working, Sharp

“excluded [Plaintiff] from meetings and left her off of emails.” (Doc. 25 at 11). Considering

that Crainich was hired expressly to perform tasks that Plaintiff was not hired to do (such

as helping Upside transition to ERP from Quickbooks), as well as to evaluate Plaintiff, the

fact that Plaintiff was excluded from emails and meetings between Sharp and Crainich

over time cannot reasonably be viewed as evidence of pretext.

2. Upside’s Articulated Reasons Did Not Change

Plaintiff next argues that she can establish that Upside’s stated reason for her

articulated reasons changed over time. “An employer’s changing rationale for making an

adverse employment decision can be evidence of pretext.” Thurman v. Yellow Freight

Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996), amended on other grounds, 97 F.3d 833

(6th Cir. 1996); see also Cicero v. Borg-Warner Auto, Inc., 280 F.3d 579, 592 (6th Cir.

2002). However, the record reflects that Upside’s reasons for Plaintiff’s termination have

been consistent.

The termination letter stated that Upside had “reevaluat[ed] the needs of the

business and the redesign of the Accounting and Finance function.” (Doc. 18 at PageID

286). In response to the EEOC charge, Upside similarly stated that it had eliminated

Plaintiff’s position after determining it needed to hire a Controller, and that Plaintiff was

not qualified to fill that position. (Doc. 22 at PageID 553).

Plaintiff does not claim that Upside reconstituted Plaintiff’s former position after

eliminating it. Instead, Plaintiff questions Upside’s “Controller qualification” explanation

as pretextual. The first job description for the Controller position listed the requirement of

a CPA, which Crainich possessed but Plaintiff did not. However, in June 2019, Upside

terminated Crainich and replaced him with Corey Asman, who Sharp testified had sat for

the CPA exam but did not yet hold his CPA. (Doc. 22 at PageID 469-470). Plaintiff claims

that the waiver of the prerequisite of a CPA in June of 2019 demonstrates that

Defendant’s position in March of 2018 that she was not qualified for the Controller position

was “demonstrably false.” (Doc. 25 at 12).

It does not. If Upside had claimed that a CPA was required in March of 2018 and

then hired someone without a CPA and with comparable experience to Plaintiff, such

fired Crainich and hired a different Controller who did not possess a CPA 15 months later

has no bearing on whether Upside’s stated reason for not considering Plaintiff for the

position of Controller was a “sham” at the time it was made. See Bailey v. Oakwood

Healthcare, Inc., 732 Fed. Appx. 360, 363 (6th Cir. 2018) (quoting Tingle v. Arbors at

Hilliard, 692 F.3d 523, 531 (6th Cir. 2012)) (holding that where 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….”).

Plaintiff also argues that Upside’s assertion that Plaintiff could not provide Upside

with the “high quality accounting services Upside needed” is a “vague, subjective

justification” that shows pretext. (Doc. 25 at 12). Again, I disagree. From nearly the

outset of her employment, Upside questioned Plaintiff’s “fit” and whether she could meet

its needs before Defendant was aware of her pregnancy. Plaintiff does not (and cannot)

make any argument that Upside hired an accounting consultant to train and evaluate her

as a pretext for pregnancy discrimination, when her employer made that decision and

advertised for the position before Defendant was aware she was pregnant.

Once Crainich was hired into the consultant’s position, even Plaintiff admits that

he possessed skills6 and additional years of experience that she did not, in addition to his

5Plaintiff appears to be asserting a new “failure-to-promote” claim in addition to her claim of wrongful

termination. Although the promotion arguments have been addressed infra, the undersigned expresses no

view on whether a failure-to-promote claim is adequately stated in the complaint or in the prior EEOC

charge. With respect to the more clearly articulated termination claim, Plaintiff argues that Upside’s failure

to consider her for the Controller position prior to terminating her is evidence of pretext. However, given

Upside’s concerns about Plaintiff’s ability to execute her duties in the lower-responsibility position into which

she was hired, the suggestion that its failure to consider her for promotion shows pretext is without merit.

6The Controller job also required experience with cash and accrual accounting, job costing and

manufacturing accounting expertise, none of which Plaintiff possessed, as well as ERP implementation

experience (rather than mere “familiarity”). (Doc. 22 at PageID 578). Defendant’s response to the EEOC

Plaintiff to Controller over Crainich, even if the position had been open to other

applicants.7 As the undersigned recently wrote in Leisring v. Hamilton County Clerk of

Courts, 2020 WL 155408 at *8 (S.D. Ohio April 1, 2020) (appeal pending):

[T]he Sixth Circuit …frequently has emphasized that “employers are

generally ‘free to choose among qualified candidates,’ and that ‘[t]he law

does not require employers to make perfect decisions, nor forbid them from

making decisions that others may disagree with[.]’” O’Dell v. State, 2018

WL 662245 (6th Cir. Feb. 1, 2018) (quoting Bender, 455 F.3d at 627,

additional citations omitted). A court is not to act as “super-personnel

department.” See Hedrick, 355 F.3d at 462 (citations omitted). Thus, “it is

inappropriate for the judiciary to substitute its judgment for that of

management.” Id.,(quoting Smith v. Leggett Wire Co., 220 F.3d 752, 763

(6th Cir. 2000)). “Rather, our inquiry is limited to whether the employer gave

an honest explanation of its behavior.” Id. (internal quotation marks and

citation omitted). “[W]hen qualifications evidence is all (or nearly all) that a

plaintiff proffers to show pretext, the evidence must be of sufficient

significance itself to call into question the honesty of the employer’s

explanation.” Bender, 455 F.3d at 627 (additional citation omitted).

Id.; see also Russell v. Michigan Dept. of Health and Human Services, 2018 WL 1168981

at *9 (E.D. Mich. March 6, 2018) (“[T]he prevailing rule in this Circuit is that if an employer

has an ‘honest belief’ in the nondiscriminatory basis upon which it has made its

employment decision…, then the employee will not be able to establish pretext.”).

Last, Plaintiff argues that Upside came up with a “newly fabricated justification”

charge stated clearly that Crainich’s experience and training for the Controller position “far outweighed”

Plaintiff’s. (Doc. 22 at PageID 553). The response stated that Crainich had a CPA, had completed “various

trainings” concerning key skills required for the Controller position, was “certified as a Charter Global

Management Accountant and affiliated with American Institute of Certified Public Accountants.” (Id.) By

contrast, Plaintiff had a total of seven years of “lower-level” experience (most of which occurred prior to her

receipt of an accounting degree in 2016), while “Crainich had nineteen years of work experience” including

positions as “Corporate Controller, Controller, Accounting Manager, and Corporate Accountant.” (Doc. 22

at PageID 553).

7In a failure-to-promote case, even the selection of an inferior applicant rarely will be sufficient to prove

pretext. Plaintiff does not even argue that her objective qualifications were superior to those of Crainich or

to those of his more recent replacement. Compare White v. Baxter Healthcare Corp., 533 F.3d 381, 393-

394 (6th Cir. 2008) (holding that African-American candidate was so significantly better qualified that a

factfinder could infer pretext, and that the employer consciously selected the less-qualified white candidate

for promotion based upon discrimination).

Accounting and Human Resources Manager as well as an Accounting Assistant. (Doc.

25 at 13). However, Plaintiff alleged in her complaint and in her EEOC charge, and

testified at her deposition, that Upside told her at the time of her termination that Upside

could not afford to employ both her and Crainich. (Complaint at ¶15; see also EEOC

Charge, Doc. 18 at PageID 289; Doc. 18 at PageID 205, 210). In addition, Upside’s

response to the EEOC charge stated:

Upside quickly realized Ms. Gadagbui was not able to handle many of the

accounting aspects of her position. As a result, Mr. Sharp engaged a

consultant to assist with the Company's accounting needs. Once Mr. Sharp

was able to observe firsthand Ms. Gadagbui's accounting skills and the

contractor's accounting skills, Mr. Sharp realized that Upside Innovations

needed to hire a Controller, who was able to provide high-quality accounting

services. With a Controller, the Company simply did not need an

"Accounting and Human Resources Manager" who, for the most part, could

only provide human resources services and low-level accounting help. The

business needed higher level accounting help, not human resource

services.

(Doc. 22 at PageID 552).

Upside’s explanations for the elimination of Plaintiff’s position in favor of hiring a

Controller are entirely consistent. “[P]roviding additional non-discriminatory reasons that

do not conflict with the one stated at the time of discharge does not constitute shifting

justifications.” MacDonald-Bass v. J.E. Johnson Contracting, Inc., 493 Fed. Appx. 718,

726 (6th Cir. 2012) (additional citations omitted). Sharp’s deposition testimony, that cost

was considered in eliminating a position that the company “did not need,” states nothing

more than the obvious.

3. Hiring Crainich Before Finalizing the Controller Job Description

Does Not Show Pretext

In a closely related argument, Plaintiff claims that Upside’s reasons for terminating

“Upside had not even established the duties or required qualification of the Controller

position.” (Doc. 25 at 13). It is true that Upside hired Crainich before creating a formal

written job description for the Controller position. But Plaintiff is wrong to assume that the

failure of Upside to finalize his job description prior to hiring him somehow invalidates that

decision. The record overwhelmingly supports Defendant’s assertion that the Controller

position was designed around the work that Crainich was actually doing – work that

Gadagbui was not performing and does not claim to have been capable of producing.

Crainich had greater skills and experience and the decision to hire him was based on his

demonstrated ability to produce what Upside wanted at that time. The fact that the written

job description was not finalized until shortly after he was hired is not evidence of pretext.

4. Evidentiary Support for Plaintiff’s Accounting Deficiencies

Plaintiff contends that Upside failed to produce a sufficient quantity of emails to

corroborate Sharp’s testimony about her deficiencies “for the Accounting and Human

Resources Manager position that she held, much less the Controller position.” (Doc. 25

at 14). Plaintiff claims that Upside produced only a single email initiated by Sharp on

March 13, 2018 discussing an accounting mistake, which Plaintiff argues that Sharp

admitted was “no big deal” at the time. In the email correspondence, after Plaintiff

admitted the error, Sharp replied: “No big deal, you would have caught it in a day or two

anyway.” (See Doc. 18 at PageID 281; see also id. at PageID 193-194).

However, the record includes additional documentation, including an email dated

January 17, 2018 from Sharp to Plaintiff stating that he would like for her to work with him

to “go through the PNC banking statement and balance it to our QB cash account” based

on a noted error that was due to her failure to enter bank transactions into Quickbooks.

e.g., Doc. 18 at PageID 264-68, 279-85; Doc. 22 at PageID 499-27, 529-33, 542-49).

Most compelling is the record that demonstrates that Upside’s concerns led Defendant to

contact a third-party placement agency before Defendant learned Plaintiff was pregnant

to find a consultant who could help train and evaluate her. Both Crainich and Sharp

testified consistently to Plaintiff’s deficiencies. Plaintiff did not deny those deficiencies in

her deposition testimony, but instead blamed her inability to perform on Upside’s failure

to provide her with adequate training. (See Doc. 18 at PageID 148-150).

5. Isolated Remarks Fail to Show Pretext

In a final attempt to establish pretext, Plaintiff points to a smattering of isolated

remarks relating to her pregnancy, beginning with Sharp’s verbal response to her

pregnancy disclosure. See Asmo v. Keane, 471 F.3d 588, 594-595 (6th Cir. 2006)

(holding that a supervisor’s notable silence on a conference call in which all colleagues

were congratulatory upon an announcement that the plaintiff was pregnant with twins

reasonably could be interpreted as discriminatory speculation “regarding the impact of

Asmo’s pregnancy on her work” given the context of plaintiff’s job “being particularly

demanding of time due to travel and her announcement of not just a pregnancy, but a

pregnancy of twins.”).

Asmo is easily distinguished. Context matters. Plaintiff testified that Sharp

responded to her announcement by stating that he had never had a pregnant worker

before but that “we know these things happen.” (Doc. 18 at PageID 152). However,

Plaintiff informed Sharp of her pregnancy in a meeting after his February 14 email

suggesting a need for better and more organized training. Plaintiff did not appear happy

and told Langford that the pregnancy was the result of a birth control failure. Sharp

Plaintiff’s less-than-enthusiastic announcement led to an awkward exchange.

Contemporaneous documents corroborate Sharp’s testimony that his conversation

with Plaintiff was awkward in part because Plaintiff shared that she was not menstruating,

was breastfeeding, and did not think she could become pregnant. In response, Sharp

quipped something along the lines of “Well there is quite a bit of general understanding

how these things happen.” (Doc. 22 at PageID 418; see also id. at 528). Sharp testified

that he made the statement in an effort to break the tension of the awkward exchange.

(Id.) Both on its face and in context, Sharp’s response neither directly expresses nor

implies any animus toward Plaintiff’s pregnancy.

Plaintiff points to a second comment a month later when Plaintiff called off work

because she felt sick, in which Sharp stated that he hoped her illness was not “pregnancy

related.” However, that statement also indicates no direct animus. The undisputed record

demonstrates that Sharp made the statement out of concern, not any discriminatory

animus. (Doc. 22 at PageID 419, “But it – it wasn’t quite in the tone. It was – It was, you

know, I hope you don’t have morning sickness which is something I would say to my wife

or any other person that is pregnant and isn’t feeling well in the morning.”). All other

records, including Plaintiff’s own testimony, reflect that Sharp never objected or indicated

any work-related concerns when Plaintiff left to care for her children or due to illness

(whether caused by pregnancy or otherwise). (See, e.g., Doc. 18 at PageID 259-263;

Doc. 22 at PageID 527). In a contemporaneous exchange in which Sharp told Langford

that “Sena told me that she’s 15 weeks pregnant….,” former employee Langford

responded with concern about the timing of Plaintiff’s due date: “Oh wow. Busy season.

I feel bad about leaving like I’ve left you in a mess.” In contrast to Langford’s concern,

Plaintiff next turns her focus to a comment by Crainich about her “reliability” based

on appointments taking her away from the office but again omits context. In the

referenced email to Olmstead, Crainich wrote: “What has Kevin’s [Sharp’s] experience

been with Sena’s reliability? I fully understand appointments and things happen that at

times take you away from the office (that’s anybody). But while she’s there I’m not feeling

an “urgency” on her part to get caught up or things done.” (Doc. 22 at PageID 543-544).

When questioned about the reference, Crainich testified:

I had no idea, nor was it my business to know why she was leaving. But I

– I didn’t see that on Sena’s part. When she were to leave, I didn’t see any

urgency to say, gosh, I – I left, I missed work. I got to get this done, I got to

get these financial statements done, or these bills paid or get this project

done.

(Doc. 20 at PageID 321-22). In context, the comment indicates no animus towards

pregnancy. In addition, Crainich was not the decisionmaker, so his isolated comment is

insufficient to create a question of fact concerning pretext. See Smith v. Leggett Wire

Co., 220 F.3d at 759.

Plaintiff also complains that Sharp and/or Olmstead referred to her pregnancy

during her termination meeting, when informing her that Upside would not oppose her

application for unemployment because she was pregnant. This isolated comment

provides no evidence that Upside’s decision to eliminate Plaintiff’s position and hire a

more experienced Controller was pretextual. In sum, even if Plaintiff could establish her

prima facie case, Upside still would be entitled to summary judgment because it offered

facially nondiscriminatory reasons for creating the Controller position and eliminating

Plaintiff’s former position, which no reasonable jury could find were pretextual.

Accordingly, IT IS ORDERED that Defendant’s motion for summary judgment

(Doc. 23) be GRANTED on all claims, and that this case be DISMISSED.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge