Brady v. Davita, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LISA M. BRADY, Case No. 1:20-cv-00910

Plaintiff, Barrett, J.

Bowman, M.J.

v.

DAVITA, INCORPORATED,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Lisa M. Brady filed this action against her former employer, alleging claims

of unlawful employment discrimination and/or retaliation under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §1981, and related claims under Ohio law. The Court previously

granted Defendant’s motion to dismiss Plaintiff’s Title VII claims as untimely, while

allowing Plaintiff’s claims under 42 U.S.C. § 1981 and state law to proceed. (Docs. 18,

19). Plaintiff’s remaining claims contest her alleged termination by Defendant on

February 4, 2018. This matter is now before the Court on Defendant’s motion for

summary judgment. (Doc. 29). For the following reasons, the undersigned recommends

that Defendant’s motion be granted.

I. Standard of Review

The standard of review on summary judgment differs significantly from the

standard of review that this Court previously applied under Rule 12. Plaintiff may no

longer rest on the allegations of her complaint. Instead, the Court looks to the evidence

submitted by the parties to determine if any triable issue remains. Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c).

It is true that in applying this standard, a court must view the evidence and draw

all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). And Defendant, as the moving

party, has the burden of showing an absence of evidence to support the nonmoving

party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). However, once the

moving party has met its burden of production, the nonmoving party cannot rest on her

pleadings, but must present significant probative evidence to defeat the motion for

summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

In the case presented, Defendant has met its initial burden by including with its

motion a “Statement of Undisputed Facts,” supported by appropriate citations to the

record. (Doc. 29 at 3-8). 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., 475 U.S. at 586-87. “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, 477 U.S. at 249-50. The court then 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. 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 (citation omitted).

Plaintiff does not challenge the vast majority of the proposed facts listed in

Defendant’s Statement of Facts. Therefore, the undersigned has primarily determined

the facts from the Defendant’s citations. In limited instances where Plaintiff has

challenged a proposed finding, the undersigned has construed the facts and any

reasonable inferences “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). 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 or conclusory assertions.

II. Undisputed Findings of Fact

Defendant DaVita Incorporated (“DaVita”) provides kidney dialysis and related

medical services for patients suffering from chronic kidney failure or end stage renal

disease. It operates kidney dialysis centers and also provides acute care for hospitalized

patients. (Doc. 29-1. Williams Decl. at ¶ 3).

Plaintiff, who is Black, is from Indianapolis, Indiana. DaVita hired Plaintiff as a full-

time Acute Registered Nurse in April 2017. Plaintiff’s employment was at-will. (Doc. 28-

1 at 9-10, PageID 445-446). In her role as an Acute Registered Nurse, Plaintiff was

responsible for providing dialysis treatment to the patients at various hospitals. Plaintiff

was originally assigned to work at Christ Hospital, but later volunteered to assist at Good

Samaritan, Bethesda North, and other hospitals.

At the start of her employment, Plaintiff reported to Linda Pleiman. After Pleiman

stepped down from the supervisory position, Plaintiff reported to Debra Blimline.

Approximately a week before the incident that gave rise to this lawsuit, on or about

January 28, 2018, Plaintiff began reporting to Stephanie Cline.1 (Doc. 28 at 82-86,

PageID 182-186).

On February 2, 2018, Plaintiff informed Cline via text message that she had applied

online for a position at DaVita’s clinic in Silverton, Ohio. Plaintiff sought a transfer to a

clinic role because it would allow her to have set hours, unlike her acute care role. In an

exchange of text messages, Cline asked Plaintiff about her anticipated time frame for the

transfer, and explained that the manager of the Silverton clinic would need to contact her

so that they could work through the required process for Plaintiff’s request for transfer.

(Doc. 28-1 at 21-22, PageID 457-458).

The day after notifying Cline of her desire to transfer, on February 3, Plaintiff was

assigned to work at Bethesda North Hospital. Her shift began early on February 3, but

she was scheduled to continue to take call until 5 a.m. the following day, meaning that

she would receive a call if any additional patients at nearby hospitals needed dialysis.

(Doc. 28 at 140-142, PageID 240-242; see also Doc. 29-1 at 12, PageID 547, “Acute shift

was 5 am on 2/3 – 5 am 2/4”). Between 7:30 and 8:00 a.m. on February 3, Plaintiff

received a call that a new patient had been added to that day’s schedule at Bethesda

Butler Hospital (“Butler”), a nearby facility. Plaintiff testified that, in a subsequent

1Plaintiff misspells her former supervisor’s surname as “Kline.”

telephone call around 10 a.m., a Caucasian coworker named Lisa Johnson told Plaintiff

that Johnson would provide services to the Butler patient. (Doc. 28 at 143, PageID 243).

However, Plaintiff admitted in her deposition testimony that at 11:11 a.m. the same day,

she asked Johnson if another nurse identified as “Della” would want the add on patient at

Butler, to which Johnson responded negatively. (Id. at 156-157, PageID 256-278).

In any event, by around 4:30 p.m., Plaintiff realized that Johnson had not shown

up at Butler, and that Johnson was not responding to text messages. (Doc. 28 at 148-

149, 159, PageID 248-249, 259). Plaintiff later received another follow up call inquiring

when a nurse would arrive at Butler.2 Plaintiff testified that she attempted to contact

Johnson before deciding to drive to Bethesda Butler herself. En route, Plaintiff began

feeling dizzy and experiencing leg cramps. She pulled over and called her daughter to

pick her up. (Doc. 150 at 336-337, PageID 250-251)

After she returned home, at 7:36 p.m., Plaintiff texted Cline: “I just tried to call you

I’m not feeling well I’m light headed and dizzy still have patient at Butler.” (Doc. 28 at Ex.

7 at p. 4; Doc. 28 at PageID 458) (emphasis added). Twenty minutes later, Plaintiff texted

Cline again, stating: “I don’t feel safe enough to drive/ run patient.” (Id.) Shortly thereafter,

Cline responded: “Sorry on another call. Please reach out to other nurses to get

coverage for the night.” (Id.) Plaintiff did not reach out to anyone else to get coverage,

nor did she inform Cline of her belief that Johnson had earlier agreed to provide coverage.

Instead, Plaintiff went to sleep. (Id. at 153, PageID 253). She did not provide treatment

2In opposition to summary judgment, Plaintiff has filed an affidavit that states that she received a telephonic

inquiry “at approximately 7:00 P.M….as to when a nurse would be at Bethesda Butler Hospital to assist.”

(Doc. 35-2 at ¶7). However, the affidavit does not deny earlier knowledge, and Plaintiff’s text messages

and deposition testimony confirm inquiry from Butler and Plaintiff’s inability to reach Johnson around 4:30

p.m.

to the Butler patient and does not know who did. (Doc. 28 at 160-161; Doc. 28 at PageID

260-261). Plaintiff testified that she assumed Cline would try to get coverage for the

Butler patient because securing coverage was Cline’s job and “not my job to staff the

place or find coverage.” (Id. at 154, PageID 254)

The next day, on February 4, 2018, Cline texted Plaintiff: “I need for you to give

me a call this afternoon to let me know what happened yesterday. This is not good and

you will be written up for abandoning a patient.” (Id. at 163; PageID 263). Plaintiff called

Cline that afternoon. During a short but contentious telephone conversation, Cline

accused Plaintiff of abandoning the Butler patient and asked Plaintiff to explain what

happened. Plaintiff recounted her physical symptoms and stated that she was trying to

get an appointment with her physician the following week, despite being on the schedule

to work. Plaintiff testified that Cline responded by stating that Plaintiff didn’t need to worry

about that because Cline was “terminating your [Plaintiff’s] position.” (Id. at 169, PageID

269). Although Cline later denied making the statement to DaVita’s human relations

department, the undersigned concludes that a reasonable jury could easily find for

Plaintiff on this factual issue. In addition to Cline’s alleged direct statement to Plaintiff

during the phone call, Plaintiff testified that she learned from a former co-worker that Cline

stated that Plaintiff had been terminated. Plaintiff has submitted the affidavit of a former

coworker to that effect. (See, e.g., Doc. 35-1 at ¶2, Affidavit of Karen Judd, testifying to

“personal knowledge” that Plaintiff’s “termination was communicated to her fellow

employees by Stephanie Cline.”).3

3The remainder of Judd’s affidavit consists of conclusory statements that Plaintiff was terminated and

“treated differently” because of her race, which statements are unsupported either by personal knowledge

or any specific facts. Unsupported statements are to be disregarded as insufficient to defeat summary

judgment. See Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009) (“Conclusory statements

On February 5, Plaintiff contacted Defendant’s human relations department,

known as Teammate Relations (“TM Relations”), seeking to contest her “termination.”

(Doc. 29-1 at 5, PageID 540). TM Relations responded by writing up notes on the initial

encounter and emailing Plaintiff a “Disciplinary Action Appeal Form” to complete and

return. (Id.; see also Doc. 28-1 at 34, PageID 470). Cline separately reached out to TM

Relations on February 5 to seek guidance on disciplining Plaintiff. (Doc. 29-1 at 9, PageID

544). After TM Relations became involved, the verbal termination by Cline on February

4 was quickly rescinded.

The rescission of Cline’s February 4 verbal “termination” was conveyed to Plaintiff

by three individuals, including Cline herself, on multiple occasions. First, on February 7,

2018, Cline called Plaintiff and left the following voicemail:

Hi, Lisa. This is Stephanie. I was wanting to see if you had time to give me

a call. It’s in regard to the corrective action. I noticed that you had put in a

request for PTO and the reason you put was wrongful termination, so I

wanted to just speak with you in regards to that, so we can clear things up.

It is not the position of DaVita or myself that you will be terminated, but just

wanted to speak with you. So if you would please give me a call…

(Doc. 28 at 188-189, PageID 288-289) (emphasis added).

Cline and Plaintiff also exchanged the following text messages on February 7,

2018:

Cline: “Trying to reach you regarding corrective action. Please give me a

call.”

Brady: “Good afternoon. I’m at a follow up md appointment. From

conversation on Sunday you had stated you terminated my position not sure

what’s left to discuss?”

unadorned with supporting facts are insufficient to establish a factual dispute that will defeat summary

judgment.”); accord, Hunter v. Trussel, 2006 WL 1209374 at *2 (S.D. Ohio May 2, 2006).

Cline: “I spoke with TM Relations as to corrective action and was advised

to administer a verbal warning as opposed to termination and I just wanted

to discuss this with you.”

Doc. 28-1 at 22, PageID 458 (emphasis added)). Plaintiff did not respond to the text

message that she would be given only a “verbal warning as opposed to termination.”

Cline tried again with a text on February 8: “I wanted to reach out to discuss your

position. Would you have time to discuss tomorrow?” Plaintiff texted back the same day:

“I’m waiting on call from my attorney. I’ll get back with you.” (Id.) On February 9, 2018,

Cline texted yet again: “Lisa I am reaching out to you regarding your intentions. While

things were said on Sunday, there has been nothing done formally in the direction of

termination. You were scheduled for today and are on the schedule for tomorrow. I need

for you to contact me as soon as possible.” (Id. (emphasis added)). Plaintiff texted back

on February 9 with a request that Cline stop texting her and that any issues be resolved

through TM Relations. Cline agreed to work through TM Relations and complied with

Plaintiff’s request to stop texting.

On February 12 or 13, TM Relations Advisor Lorraine Mercurio, who had been

assigned to investigate the issue, interviewed Plaintiff by telephone. (Doc. 28 at 193-194,

PageID 293-294; Doc. 29-1 at 10-11, PageID 545-546). During their conversation,

Mercurio informed Plaintiff that her employment with Defendant had not been terminated

and stated that she had been scheduled to work several days that week. (Doc. 29-1 at

11-13, accord Complaint, Doc. 1 at 4, PageID 4, acknowledging February 12 phone call

advising Plaintiff that she was scheduled to work because she was not terminated).

Despite Defendant’s repeated assurances that she had not been terminated, Plaintiff

insisted she had been terminated by Cline and did not return to work.

A third DaVita official, Senior TM Relations Manager Cindy Mallen, sent a final

follow-up letter on February 23, 2018 by both email and certified mail to Plaintiff’s home

address. That letter repeatedly states that Plaintiff has not been terminated and asks

Plaintiff to promptly contact either Mallen or Cline:

No termination has been processed in Workday and as of today you remain

an active teammate. You have also missed several subsequent shifts since

February 5. We are asking that you communicate to Stephanie [Cline] as

to what your intentions are as it relates to returning to work.

Again, this letter is to make you aware that you are an active teammate with

DaVita. Please contact Stephanie at xxx-xxx-xxxx, upon receipt of this

letter. You may also contact me via email at cindy.mallen@davita.com if

you have further questions.

(Doc. 29-1 at 14, PageID 549). The letter concludes by asking Plaintiff to contact DaVita

no later than February 28, and cautions her that if she fails to do so, Defendant will

assume that Plaintiff has voluntarily ended her employment. Plaintiff did not contact

Cline, Mallen or anyone else at DaVita by the stated deadline. Therefore, DaVita

processed Plaintiff’s voluntary separation on March 7, 2018.

Plaintiff initiated this lawsuit on November 11, 2020, alleging unlawful termination

on February 4, 2018. Specifically, Plaintiff claims that: (1) Defendant discriminated

against her based upon her race, in violation of 42 U.S.C. § 1981 and Ohio law; (2)

Defendant discriminated against her based upon her national origin in violation of Ohio

law; and (3) Defendant retaliated against her in violation of Ohio law.

III. Analysis

After her Title VII claims were dismissed, Plaintiff was permitted to pursue her claim

of race discrimination under 42 U.S.C. § 1981 and additional claims that Defendant

engaged in unlawful employment practices under state law. (See Complaint at ¶¶20-26).

Relevant to employment, 42 U.S.C. § 1981 states in part that “[a]ll persons within the

jurisdiction of the United States shall have the same right in every State and Territory to

make and enforce contracts….” In Amini v. Oberlin College, 440 F.3d 350, 358 (6th Cir.

2006), the Sixth Circuit explained that § 1981 “prohibits intentional race discrimination in

the making and enforcing of contracts involving both public and private actors.” Amini v.

Oberlin Coll., 440 F.3d 350, 358 (6th Cir. 2006).

To prevail on a claim under § 1981, a plaintiff must plead and prove that “(1) he

belongs to an identifiable class of persons who are subject to discrimination based on

their race; (2) the defendant intended to discriminate against him on the basis of race;

and (3) the defendant's discriminatory conduct abridged a right enumerated in section

1981(a).” Id., 440 F.3d at 358. More recently, in Comcast Corp. v. Nat'l Ass'n of African

Am.-Owned Media, 140 S. Ct. 1009 (2020), the Supreme Court clarified that a plaintiff

who proceeds under § 1981 “must initially plead and ultimately prove that, but for race, it

would not have suffered the loss of a legally protected right.” Id., 140 S.Ct. at 1019

(emphasis added).

A. A Failure to Prove a Prima Facie Case of Discrimination Under § 1981

In evaluating whether Plaintiff has met her burden of proof, the undersigned first

notes that Plaintiff points to no direct evidence of race discrimination. Thus, the

familiar McDonnell Douglas burden-shifting framework is presumed to apply to Plaintiff's

claims.4 See McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817 (1973).

Under this framework, the plaintiff bears the initial “not onerous” burden of

establishing a prima facie case of discrimination by a preponderance of the

4Comcast expressed some ambivalence about “[w]hether or not McDonnell Douglas has some useful role

to play in § 1981 cases…” Id. at 1019. Absent contrary authority, however, McDonnell Douglas continues

to be applied in the Sixth Circuit.

evidence. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. To establish a prima

facie case of employment discrimination, a plaintiff must demonstrate that:

(1) he is a member of a protected class; (2) he was qualified for his job; (3)

he suffered an adverse employment decision; and (4) he was replaced by

a person outside the protected class or treated differently than similarly

situated non-protected employees.

White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008) (citing Arendale v.

City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008); accord Clay v. United Parcel Serv.,

Inc., 501 F.3d 695, 703 (6th Cir. 2007); see also, Burnett v. Carington Health Systems,

U.S. Dist. No. 1:11–cv–324, 2012 WL 6001034 (S.D. Ohio, Nov. 30, 2012). If a plaintiff

establishes her prima facie case, the burden shifts to the defendant to articulate a

legitimate, non-discriminatory reason for the employment decision. If the defendant

makes the appropriate showing, then the burden shifts once more back to the plaintiff to

demonstrate that the defendant's proffered reason was a pretext for

discrimination. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-55. (1981).

On the record presented, Defendant argues persuasively that Plaintiff has failed to

establish the third and fourth elements of her prima facie case. The third element requires

proof of an adverse employment action. Plaintiff maintains that the adverse action was

her termination by Supervisor Cline during their February 4, 2018 telephone conversation.

And the record undoubtedly would allow a jury to conclude that Cline told Plaintiff during

that short and heated conversation that she intended to terminate Plaintiff’s employment

based upon Plaintiff’s alleged failure to report for duty the prior evening. However, it is

also undisputed that Cline’s initial decision was rescinded after both Plaintiff and Cline

independently contacted Defendant’s human relations department the very next day,

February 5, 2018.

In response to Plaintiff’s initial contact, TM Relations advised Plaintiff that it would

investigate the contested disciplinary termination, notated the call, and emailed Plaintiff a

form to complete in order to provide a statement of what transpired. Plaintiff chose not to

complete the paperwork or to follow up with TM Relations. Nevertheless, Cline’s

impromptu verbal attempt to terminate Plaintiff on February 4 was still rescinded. On

February 7, Cline clearly communicated to Plaintiff that she had been advised by TM

Relations that she should not terminate Plaintiff and instead should give her only a verbal

warning. In addition to Cline’s multiple attempts to contact Plaintiff to communicate the

change in corrective action, two TM Relations personnel related the same message,

informing Plaintiff that her employment had not been terminated and that she should

return to work as scheduled.5 Nearly a month after the February 4 telephone call with

Cline - and only after Plaintiff steadfastly refused to respond to Defendant’s multiple

statements that she had not been terminated and continued to refuse to return to work -

Defendant concluded that Plaintiff had voluntarily resigned. (See Doc. 29-1 at 14, PageID

549).

At times, an employer may reverse or rescind an employment decision that

otherwise would constitute an adverse action. This may occur, for instance, when a

company overrules a rash decision by a supervisor that does not comply with company

policy, or when an employer discovers additional facts after investigation that support

reversal of a preliminary decision. Regardless of the reasons, the Sixth Circuit has held

5Plaintiff recalled receipt of messages from both Cline and from at least one TM Relations employee

concerning the change in the proposed corrective action from termination to a verbal warning. (See Doc.

28 at 188-189, PageID 288-289; see also id. at 199-202, PageID 299-302). Without denying actual receipt

of the final letter transmitted from Senior TM Relations Manager Cindy Callen by both email and certified

mail to her home address, Plaintiff testified she did not remember receiving that final letter. (Doc. 28 at 206,

PageID 306).

that an employer is sometimes permitted to rescind an initial decision without running

afoul of federal law; in essence, a “do-over.” This pragmatic approach forecloses federal

liability in some instances for rash-but-hollow words, while maintaining federal protections

for any employee who suffers real or lasting adverse consequences. Thus, “when an

employer imposes an employment action that would be an adverse employment action

but then quickly reverses the action, the employee has not suffered an adverse

employment action.” Keeton v. Flying J, Inc., 429 F.3d 259, 263 (6th Cir. 2005)

(citing Birch v. Cuyahoga Cnty. Probate Ct., 392 F.3d 151 (6th Cir. 2004) and Bowman v.

Shawnee State Univ., 220 F.3d 456 (6th Cir. 2000)); see also Parker v. Metropolitan

Government of Nashville, 2016 WL 205380, at *3 (M.D.Tenn. Jan. 15, 2016).

On the record presented here, Cline’s verbal attempt to terminate Plaintiff in the

heat of the February 4 call was quickly reversed and rescinded – a fact communicated to

Plaintiff multiple times by three different individuals including Cline herself. The rescission

of Cline’s initial verbal decision was first communicated to Plaintiff on February 7 – 3 days

after her conversation with Cline and a mere 2 days after Plaintiff contacted TM

Relations.6 Because Cline’s initial “termination” never took effect, and because the

reversal of Cline’s termination decision was clearly communicated to Plaintiff, Cline’s

February 4 statement was akin to an “empty threat” that was never carried out. See Smith

v. Chicago Transit Auth., 2014 WL 3892233 at *7 (N.D. Ill. Aug. 5, 2014); Beard v. Don

McCue Chevrolet, Inc., 2012 WL (N.D. Ill July 18, 2012) (plaintiff did not suffer adverse

action where supervisor called to tell hm he was terminated for leaving early, but told him

the next day that he was not terminated and could continue working there if he wanted).

6Defendant reversed Cline’s verbal termination based upon its initial investigation, without waiting for

Plaintiff to complete paperwork as part of the investigatory process.

Cline herself repeatedly told Plaintiff that she would be issuing only a verbal warning.7 In

short, the undisputed record shows that Cline’s reactive threat to terminate Plaintiff’s

position on February 4, 2018 never amounted to any actual change in Plaintiff’s

employment status.

Plaintiff also cannot establish the fourth element of her prima facie case – either

that she was replaced by a person not in her protected class or that similarly situated non-

protected employees were treated more favorably. Plaintiff has presented no evidence

at all that she was replaced by a Caucasian nurse. And, while Plaintiff states her general

belief that Caucasian nurses were treated more favorably, she has provided no evidence

that would substantiate that otherwise wholly subjective and conclusory belief. In Mitchell

v. Toledo Hosp., 964 F.2d at 584-85, the Sixth Circuit affirmed the trial court’s grant of

summary judgment despite the plaintiff’s submission of a similar affidavit based almost

entirely on hearsay and conclusory allegations:

[T]he Affidavit was not a proper Rule 56(e) affidavit because it was not made

on personal knowledge and did not set forth “facts” that would be admissible

into evidence. Even if the Court were to consider the Affidavit, the

statements contained therein are nothing more than rumors, conclusory

allegations and subjective beliefs which are wholly insufficient evidence to

establish a claim of discrimination as a matter of law.

Id.; see also Chappell v. GTE Prods. Corp., 803 F.2d 261, 268 (6th Cir. 1986) (“mere

personal belief, conjecture and speculation are insufficient to support an inference of

…discrimination.”). As in Mitchell, Plaintiff’s subjective belief that Defendant has a

“known” practice of racial discrimination is insufficient to establish the fourth element of

her prima facie case.

7In this lawsuit, Plaintiff contests only the (rescinded) verbal termination, not the proposed verbal warning.

But see generally, Rush v. E.I. DuPont DeNemours and Co., 911 F.Supp.2d 545, 570 (S.D. Ohio 2012)

(warning that was not accompanied by any change in pay or conditions was not adverse).

In a final attempt to establish that a Caucasian coworker was treated more

favorably, Plaintiff argues that Lisa Johnson was similarly situated and was not disciplined

despite “stat[ing] to Stephanie Kline [sic] that she would provide service to the patient [at

Butler], but… not show[ing] up at all.” (Doc. 35 at 3). In support of her assertion that

Johnson committed the same offense, Plaintiff has filed an affidavit wherein she states

(for the first time) that Johnson directly informed both Plaintiff and Cline that Johnson

would provide services to the Bethesda Butler patient. (Doc. 35-2 at ¶ 6, PageID 619).

But Plaintiff cites to no specific facts to support the new hearsay statement that Johnson

informed her supervisor that she would care for the Butler patient. Plaintiff testified that

she had no personal knowledge of Johnson and Cline’s communications, and her affidavit

is undermined by other evidence of record including Plaintiff’s prior testimony.8 An

affidavit must “be made on personal knowledge, set out as facts that would be admissible

in evidence.” Rule 56(c)(4); see also Marbury v. Abraham, 2009 WL 4730603 (S.D. Ohio

Dec. 8, 2009) (“[C]onclusory assertions, unsupported by specific facts made in affidavits

opposing a motion for summary judgment, are not sufficient to defeat a motion for

summary judgment.”) (emphasis original, quotation omitted); L.F.P.IP. LLC v. Hustler

Cincinnati, Inc., 533 Fed. Appx. 615, 621 (6th Cir. 2013) (quoting Rule 56 and holding

8Plaintiff’s affidavit does not suggest any personal knowledge of communication between Johnson and

Cline, and Plaintiff testified that she and Johnson were assigned to work at different hospitals. (Doc. 28 at

139, PageID 239). Plaintiff further testified that she was not privy to Cline’s communications with other

nursing staff. (Id. at 154-155, PageID 254-55). Plaintiff testified to her belief that because Cline, Johnson

and Plaintiff were all working on February 3, all three “should have been aware, as far as what was going

on and who was covering what.” (Id. at 161, PageID 261 (emphasis added)). However, Plaintiff herself

never told Cline that Johnson had agreed to cover the Butler patient. (Id.; see also id. at 153, PageID 253).

In addition to deposition testimony that undermines the new assertion are a series of text messages. For

example, Plaintiff’s February 3 texts with Johnson contain a brief exchange about the Butler patient, but no

texts suggest that Johnson was planning to care for that patient. (See Doc. 28-1 at 33, PageID 469).

Likewise, texts from Plaintiff to Cline state only that Plaintiff had been en route to cover the Butler patient

but did not complete the assignment due to illness. (Doc. 28-1 at 22, PageID 458).

that self-serving testimony was insufficient to defeat summary judgment whether

statements were not supported by citations to the record.).

In addition to the lack of evidence that Cline had any knowledge of Johnson’s

alleged intention to provide care for the Butler patient,9 Plaintiff points to no evidence that

Johnson received less discipline. Plaintiff specifically testified that she had no access to

other employees’ personnel files and was unaware if any disciplinary actions were taken

against them. (Doc. 28 at 273, PageID 373). Plaintiff cannot prove her prima facie case

and defeat summary judgment with the wholly unsupported assertions contained in her

affidavit.

B. A Failure to Prove Pretext

Even if a reviewing court were to determine that Plaintiff could prove her prima

facie case, the Defendant would still be entitled to summary judgment because Plaintiff

cannot overcome Cline’s legitimate and non-discriminatory reason for the alleged verbal

termination on February 4. It is undisputed: (1) that Plaintiff was assigned to take call on

February 3 and received notice of the add-on Butler patient that morning; (2) that Plaintiff’s

scheduled shift did not end until February 4 at 5:00 a.m.; (3) that Plaintiff was aware by

late afternoon or early evening on February 3 that Johnson was not covering Butler and

that Plaintiff would need to take care of the Butler patient; (4) that Plaintiff texted Cline at

7:36 pm that she had planned to take care of the Butler patient but had gone home sick;

(5) that Cline asked Plaintiff to find substitute coverage; (6) that Plaintiff did not respond

to Cline’s request that she find substitute coverage; (7) that Plaintiff went to sleep without

9During her deposition, Plaintiff stated only that Johnson told Plaintiff in a telephone conversation on the

morning of February 3 that she would cover the Butler patient. No other evidence in the record indicates

that Johnson communicated that intention to anyone.

notifying Cline that she was taking no further action because she believed it was Cline’s

job to secure overage; (8) that Plaintiff never conveyed to Cline that Johnson would cover.

Based upon these undisputed facts, the stated basis for Cline’s disciplinary action on

February 4, 2018 (Plaintiff’s alleged abandonment of her duties to the Butler patient)

appears to have been legitimate and non-discriminatory. Plaintiff points to no evidence

that would support a conclusion that Cline’s proffered reason for the verbal termination

was pretextual.10

For the same reasons that her unsupported statements are insufficient to establish

her prima facie case, Plaintiff’s conclusory statement that “it was known that DaVita did

not support transfers or promotions requested by Black employees”, (Doc. 35-2 at ¶3;

see also Doc. 1 at 2, PageID 2), is insufficient to show pretext by the alleged

decisionmaker, Cline. Additionally, Plaintiff testified in her deposition that Cline

terminated her not based upon racial animus, but instead because “she was upset about

me wanting to transfer – I mean, but that’s my opinion because I didn’t have any reason

for her to terminate me.” (Doc. 28 at 257, PageID 357; accord Doc. 1 at 2, “It was

apparent that [Cline] did not want the Plaintiff to transfer because of the Plaintiff’s

excellent working habits and skills.”) (emphasis added).

C. Abandoned National Origin and Retaliation Claims

Because Plaintiff has failed to respond to any of Defendant’s arguments

concerning her national origin and retaliation claims on summary judgment, she has

abandoned those claims. See Brown v. VHS of Michigan, Inc., 545 Fed. Appx. 368, 372

10Plaintiff’s claim rests on her insistence that Cline’s subsequent rescission of her verbal termination on

February 4 was ineffective. Notably, she does not challenge Defendant’s ultimate decision to separate

Plaintiff from employment after Plaintiff refused to respond to Defendant’s repeated entreaties for Plaintiff

to communicate her intentions or return to work.

(6th Cir. 2013). In the alternative, however, the undersigned finds Defendant’s

unopposed arguments to be persuasive.

Plaintiff’s “national origin” discrimination claim is entirely duplicative of her race

discrimination claim, insofar as it is based upon Plaintiff’s national origin as “African-

American.” (Doc. 28 at 288, PageID 388). Plaintiff’s retaliation claim also fails as a matter

of law. Plaintiff has failed to offer any evidence that she engaged in protected activity

prior to February 4; in fact, she testified that she did not. (Doc. 28 at 209, PageID 309).

In addition, Plaintiff testified that she believed that Cline fired her in retaliation for her

request to transfer to the Silverton Clinic as opposed to firing her for some protected

activity. (Id. at 295; PageID 395). And again, even if she could prove a prima facie case

of retaliation, Defendant has offered legitimate non-retaliatory reasons for Plaintiff’s

separation from employment: (1) Cline’s reasonable belief that she had neglected her

duties on February 3; and (2) Plaintiff’s refusal to return to work as scheduled after being

informed (repeatedly) that Cline’s initial statement to terminate her on February 4 had

been reduced to a verbal warning.

IV. Conclusion and Recommendation

For the reasons stated, IT IS RECOMMENDED THAT Defendant DaVita’s motion

for summary judgment (Doc. 29) be GRANTED, and that Plaintiff’s remaining claims be

dismissed with judgment to be entered in Defendant’s favor.

__s/Stephanie K. Bowman ____

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LISA M. BRADY, Case No. 1:20-cv-910

Plaintiff Barrett, J.

Bowman, M.J.

v.

DAVITA, INCORPORATED,

Defendant

NOTICE

Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of

the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s) of

the R&R objected to, and shall be accompanied by a memorandum of law in support of

the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)

DAYS after being served with a copy of those objections. Failure to make objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).