# Mzozoyana v. Secretary of Veterans Affairs

> District Court, S.D. Ohio · November 10, 2022

URL: https://www.frixlaw.com/law-library/cases/10664829

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** November 10, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TERI L. MZOZOYANA, .
Plaintiff,

Vv.
Case No. 3:19-cv-091
: JUDGE WALTER H. RICE
DENIS R. MCDONOUGH,
Secretary, Department of
Veteran Affairs,
Defendant.

DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (DOC. #26); CONFERENCE CALL TO
RESCHEDULE TRIAL AND OTHER DATES

Plaintiff, Teri L. Mzozoyana (“Mzozoyana” or “Plaintiff”), filed a complaint
against Denis R McDonough, Secretary of her employer, the Department of
Veteran Affairs (“VA” or “Defendant”). Doc. #1. Count One alleges that Defendant
unlawfully discriminated against Plaintiff due to her race in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Count Two alleges that
Defendant unlawfully discriminated against Plaintiff due to her age in violation of
the Age Discrimination Enforcement Act of 1967, 29 U.S.C. § 621 et seq.

This matter is before the Court pursuant to a Motion for Summary Judgment
filed by the VA. Doc. #26 (“Motion” or “Motion for Summary Judgment”). For the
reasons set forth below, Defendant's Motion is overruled.

I. Factual Background
Plaintiff, Teri Mzozoyana, was the Human Resources Officer (“HRO”), a
“service chief,” at the Columbus, Ohio, VA Ambulatory Care Center (“Columbus
VA") from early 2000 until November 12, 2016. Doc. #25, PagelD##134, 226, 232.
She was then temporarily promoted to Acting Associate Director from November
13, 2016, until March 5, 2017. /d., PagelD#232. After the temporary promotion,
Plaintiff returned to her previous position as HRO. /d. However, she was
subsequently demoted to Human Resource Specialist (“HRS”) on November 26,
2017. Doc. #25-1, PagelD#492.
Plaintiff alleges that her November 26, 2017, demotion was motivated by
both race and age discrimination. In response, the VA contends that she was
demoted not because of her race or age, but because she violated the VA‘s rules
against nepotism. Doc. #26, PagelD#562. Specifically, the VA contends that
Plaintiff changed a newly created position’s classification, and that change
allowed her husband to qualify for the position when he previously did not. /d.,
PagelD#564-565. The VA also contends that Plaintiff failed to adequately inform
her supervisors that her husband had both applied and was being considered for
the position. /d., PagelD#562. The VA contends that her actions, even if not

specifically intended to benefit her husband, nonetheless created the appearance
of nepotism and the appearance alone warranted the demotion. /d.
The circumstances surrounding Plaintiff's demotion are detailed below.

A. Creation of the Position and Classification Decision
In early 2016, the Columbus VA created a new trainer (“EMS Trainer”)
position for its Environmental Management Service (“EMS”). Doc. #25,
PagelD##238-239. EMS prepared a job description for the EMS Trainer position
and sent it to the Columbus VA’s human resources office for classification’. /d.
As HRO, Plaintiff was responsible for both assigning and approving the
classifications for all jobs at the Columbus VA. /ad., PagelD#227. She assigned the
classification task for the new EMS Trainer position to an HRS, Cindy Lamprecht.
PagelD##239-240. On February 24, 2016, Ms. Lamprecht classified the EMS
Trainer position as WL-3566, which is a wage grade (“WG”) position. Doc. #25-1,
PagelD#493. Plaintiff approved of the classification on March 29, 2016, and her
supervisor, Director Wendy Hepker (“Director Hepker”), also approved of the
classification on April 4, 2016. /o. Due to the WL-3566 classification, the EMS
Trainer position was restricted to preference eligible veterans, assuming an
eligible veteran was available. Doc. #25, PagelD##248-249,

1 Classification is necessary to determine a new position’s qualifications and salary.

However, EMS then indicated it wanted the EMS Trainer position to be a
general schedule (“GS”) rather than a WG position. Doc. #25, PagelD#240. Ms.
Lamprecht asked Plaintiff to enlist a different VA station to help with the new
classification. /o. The Dayton VA had recently created and classified a similar
position, /d., and on May 16, 2016, Plaintiff asked the Dayton VA if they could help
classify the Columbus VA’s new Trainer position. Doc. #25-2, PagelD##507-508.
The Dayton VA obliged and returned a pay grade classification of GS-9. /a.
Consistent with the Dayton VA’s recommendation, Plaintiff informed
Director Hepker that the EMS Trainer position was being reclassified as a GS-9
pay grade. Doc. #25, PagelD#241. However, she testified in her deposition that
Director Hepker told her the EMS Trainer position should instead be classified as a
GS-7 pay grade, and EMS would need to amend the job description accordingly.
/d. Plaintiff informed EMS of the change, and EMS amended the job description.
Id.
Not wanting to further delay EMS’s hiring process, Plaintiff testified that she
unilaterally classified the EMS Trainer position as GS-1712, a GS-7 pay grade,
without further collaboration with the Dayton VA or Ms. Lamprecht. /a. She
submitted the classification on July 12, 2016, and Director Hepker approved of the
classification on July 19, 2016. Doc. #25-2, PagelD#499.
As a result of the ultimate classification change from WL-3566 to GS-1712,
the EMS Trainer position was no longer restricted to preference eligible veterans.
Doc. #25, PagelD##248-249. Plaintiff's husband was not a preference eligible

veteran, /d., PagelD#249, and the new classification allowed him to apply for the
position five months later.

B. Mzozoyana’s Temporary Promotion and EMS’s Hiring Decision
On November 13, 2016, Plaintiff was temporarily promoted from the HRO
position to the Acting Associate Director for the Columbus VA. /d., PagelD#231. As
the Acting Associate Director, she directly supervised EMS Chief Novella Fulmore,
who would be responsible for hiring the EMS Trainer position. /d., PagelD#279.
The EMS Trainer position was publicly posted on December 14, 2016. Doc.
#25-1, PagelD#455. Plaintiff's husband, Mbulelo Mzozoyana, subsequently found
the EMS Trainer position on USAJobs.gov and applied on December 29, 2016.
Doc. #24, PagelD##143 and 147. Plaintiff maintains that she did not know her
husband had applied for the job until after he already submitted his application,
which was just prior to the application’s closing date of January 3, 2017. Doc. #25,
PagelD##252-254. After learning of her husband's application, Plaintiff contends
she informed him that she could not provide any assistance in the process. /d.,
PagelD##255-258. She maintains that Mr. Mzozoyana respected her position and
never requested, nor did she offer, any assistance in the application or
subsequent interview process. /d.
Mr. Mzozoyana was one of several candidates ultimately selected for an
interview by a three-person panel. The panelists rated the applicants numerically,
and Mr. Mzozoyana was given a numeric score of 55, whereas another applicant,

Kelvin Lancaster, was given a higher numeric score of 61. /d., PagelD##287-288.
Accordingly, the panel recommended Mr. Lancaster over Mr. Mzozoyana for the
EMS Trainer position. /c., PagelD#292.
However, EMS Chief Fulmore overruled the panel’s recommendation and
hired Mr. Mzozoyana. /a. EMS Chief Fulmore never justified her decision in
writing, /¢., PagelD##289-290, but Plaintiff maintains she never discussed her
husband's application with EMS Chief Fulmore. /d., PagelD#280. However, Plaintiff
admits that due to the uniqueness of her and her husband’s shared name of
“Mzozoyana,” other employees at the Columbus VA would likely recognize a
connection. /d., PagelD##221 and 299. Additionally, Plaintiff admits that while her
position as Acting Associate Director (i.e., the direct supervisor of EMS Chief
Fulmore) was temporary, EMS Chief Fulmore did not know who would be the
permanent associate director. /d., PagelD#297.

C. Mzozoyana’s Coordination with Director Hepker
Plaintiff returned to her previous position as HRO on March 5, 2017. /d.,
PagelD#232. While she admits that EMS Chief Fulmore made her initial hiring
decision prior to Plaintiff leaving the Associate Director position on March 5, 2017,
id., PagelD#297, it is unclear from the record exactly when Mr. Mzozoyana was
offered the EMS Trainer position or when Plaintiff learned of the offer to her

husband.” Nonetheless, on May 11, 2017, which was after she learned of the offer
but prior to the start of her husband’s onboarding process, Plaintiff reached out to
Arlene Shively, the Deputy Chief Counsel for the Office of District Counsel. /d.,
PagelD##261-262; Doc. #25-2, PagelD##521-524. Plaintiff informed Ms. Shively of
the situation and sent her an email in which she stated she had “no involvement
in the [s/c] any part of the process at all.” Doc. #25-2, PagelD##523-524 (emphasis
in original). She asked Ms. Shively if there were any concerns regarding nepotism,
and Ms. Shively responded that Plaintiff had likely not run afoul of any
prohibitions on nepotism because she indicated in her email to Ms. Shively that
she had “recused [herself] from working on any phase of [her] husband's hiring
action.” /d., PagelD##522-523. Afterwards, Plaintiff testified that she also informed
Director Hepker of Mr. Mzozoyana’s hiring and the email exchange with Ms.
Shively. Doc. #25, PagelD#309-312. Plaintiff claims she offered to rescind the job
offer if Director Hepker thought doing so was necessary, but Director Hepker
responded that it would be unnecessary. /a., PagelD#311-312.
Mr. Mzozoyana completed his onboarding process and was officially hired
into the EMS Trainer position on June 11, 2017. Doc. #25-1, PagelD#461.

? Defendant did not provide this information in its Motion for Summary Judgement or its
reply. Plaintiff contends in her response that she reached out to Arlene Shively “shortly
after” she learned of her husband's hiring, Doc. #32, PagelD#625, but she has not cited to
the record to support this contention.

D. Mzozoyana’s Demotion and EEO Complaint
In July 2017, an anonymous complaint was made to the VA’s Office of the
Inspector General regarding the hiring of Plaintiff's husband. Doc. #25-2,
PagelD#527. A factfinding was conducted, and the conclusions were given to
Associate Director Jamie Kuhne (“Associate Director Kuhne”).? /a. Based on the
findings, she issued Plaintiff a notice of proposed removal under 38 U.S.C. § 714.
/d. The proposed removal was based on both Plaintiff's alleged violations of the
nepotism rules and on her allegedly inaccurate statement that she had “no
involvement in any part of the process at all.” /d., PagelD##527-528.
Director Hepker sustained the allegations against Plaintiff but mitigated the
removal to a demotion from HRO to HRS. /ad., PagelD#528. The demotion lowered
her pay grade from GS-13 to GS-12, resulting in an approximate pay cut of
$20,000 annually. Doc. #25-1, PagelD#492. Director Hepker justified her decision
by noting that Plaintiff “failed to take the proactive steps to clearly and specifically
recuse [herself] from the processes resulting in [her husband’s] selection.” /d.,
PagelD#489. Director Hepker further noted that the demotion was warranted,
based on the “manner in which [Plaintiff] classified the position that created the
opportunity for [her] husband to qualify for the position.” /d.
Following her demotion, Plaintiff filed an Equal Employment Opportunity
(“EEO”) complaint on January 24, 2018, alleging that her demotion was the result

3 Jamie Kuhn was hired to the Associate Director position following the end of Plaintiff's
temporary promotion to the position. Doc. #25, PagelD#297.

of race and age discrimination. Doc. #25-2, PagelD#525. The VA issued its Final
Agency Decision (“FAD”) denying her complaint on February 22, 2019. /d.
Plaintiff then filed a Complaint, Doc. #1, in federal court alleging (1)
unlawful discrimination based on race in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e-2(a)(1) (“Title VII"), and (2) unlawful discrimination
based on age in violation of the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 621 et seq. (“ADEA”).
Following discovery, Defendant filed its Motion for Summary Judgement,
Doc. #26. This matter is now ripe for consideration.

ll. Standard of Review for Motion for Summary Judgement
Summary judgment must be entered “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial.” Ce/lotex
Corp.v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial
responsibility of informing the court of the basis for its motion and identifying
those portions of the record which it believes demonstrate the absence of a
genuine issue of material fact. at 323; see a/so Boretti v. Wiscomb, 930 F.2d
1150, 1156 (6th Cir. 1991).
“Once the moving party has met its initial burden, the nonmoving party
must present evidence that creates a genuine issue of material fact making it
necessary to resolve the difference at trial.” 7a//ley v. Bravo Pitino Rest., Ltd., 61

F.3d 1241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Once the burden of production has so shifted, the party opposing
summary judgment cannot rest on its pleadings or merely reassert its previous
allegations. It is not sufficient to “simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond the
[unverified] pleadings” and present some type of evidentiary material in support
of its position. Ce/otex, 477 U.S. at 324. “The plaintiff must present more than a
scintilla of evidence in support of his position; the evidence must be such that a
jury could reasonably find for the plaintiff.” Michigan Prot. & Advocacy Serv., Inc.
v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).
Summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment will not lie if the
dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248. In determining whether a genuine dispute of material fact exists, a
court must assume as true the evidence of the nonmoving party and draw all
reasonable inferences in favor of that party. /o. at 255. If the parties present
conflicting evidence, a court may not decide which evidence to believe. Credibility
determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federa/
Practice and Procedure Civil 3d § 2726 (1998). In determining whether a genuine
10

dispute of material fact exists, a court need only consider the materials cited by
the parties. Fed. R. Civ. P. 56(c)(3). “A district court is not... obligated to wade
through and search the entire record for some specific facts that might support
the nonmoving party's claim.” /nterRoyal Corp. v. Sponselfer, 889 F.2d 108, 111
(6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). If it so chooses, however, the
Court may also consider other materials in the record. Fed. R. Civ. P. 56(c)(3).

lil. Count One: Racial Discrimination under Title Vil
Count One of the Complaint alleges racial discrimination in violation of Title
VII. Doc. #1, PagedID#4. Title VII makes it unlawful for an employer “to discharge
any individual, or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual's race.” 42 U.S.C. § 2000e-2(a)(1).
Claims of racial discrimination under Title VII can be proven by either
presenting direct evidence of discrimination or by presenting circumstantial
evidence that would support an inference of discrimination. Carter v. Univ. of
Toledo, 349 F.3d 269, 272 (6th Cir. 2003). Because Plaintiff has no direct evidence
that her demotion was due to her race, Doc. #25, PagelD#354, she must present
circumstantial evidence, which is analyzed under the McDonnell Douglas burden
shifting framework. Under the McDonnel! Douglas framework, a plaintiff must first
establish a prima facie claim of discrimination by a preponderance of the
evidence. Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (citing
11

McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973)). Then, should the plaintiff
succeed in establishing a prima facie claim, the burden of production shifts to the
defendant “to articulate some legitimate, nondiscriminatory reason for the
employee's rejection.” /a. at 254. Finally, should the defendant carry its burden,
the plaintiff must prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were merely a pretext for discrimination. /d.
Importantly, “although the burdens of production shift, the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.” White v. Baxter Healthcare
Corp., 533 F.3d 381, 392 (6th Cir. 2008) (citing Burdine, 450 U.S. at 256).
At the summary judgment stage, “a district court considers whether there is
sufficient evidence to create a genuine [issue of material fact] at each stage of the
McDonnell Douglas inquiry.” Cline v. Catholic Diocese of Toledo, 206 F.3d 651,
661 (6thCir. 2000). Thus, the plaintiff must first submit evidence from which a
reasonable jury could conclude that a prima facie case of discrimination has been
established. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011)
(citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996)). The
defendant must then offer sufficient evidence of a legitimate, nondiscriminatory
reason for its action. /d. lf the defendant does so, the plaintiff must identify
evidence from which a reasonable jury could conclude that the proffered reason is
a pretext for unlawful discrimination. /d.

12

Plaintiff must first establish a prima facie claim of discrimination by a
preponderance of the evidence. The prima facie requirement “is not onerous,”
Burdine, 450 U.S. at 253, and poses “a burden easily met.” Wrenn v. Gould, 808
F.2d 493, 500 (6th Cir.1987). This stage is “not meant to stymie plaintiffs, but
simply serves to ‘bring the litigants and the court expeditiously and fairly to the
ultimate question.’” Cline, 206 F.3d at 660 (quoting Burdine, 450 U.S. at 253).
In the context of racial discrimination under Title VII, Plaintiff must show
that (1) she was a member of a protected class; (2) she was discharged or
otherwise punished; (3) she was qualified for the position; and (4) she was
replaced by a person outside the class, or similarly situated non-protected
employees were treated more favorably. Regan v. Faurecia Auto. Seating, Inc.,
679 F.3d 475, 481 (6th Cir. 2012). Defendant does not contest that Plaintiff has
satisfied the first three elements of the prima facie showing. Doc. #26,
Page!lD##572-573. Instead, the VA argues that Plaintiff failed to establish a prima
facie case since her comparators, Director Hepker and Associate Director Kuhne,
were not similarly situated and were not named by Plaintiff in her deposition
testimony. /a.; Doc. #34, PagelD#385. The Court will address each of these
arguments below.
To be treated as similarly situated, an employee must “have dealt with the
same supervisor, have been subject to the same standards and have engaged in
the same conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer's treatment of them for it.”
13

Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir.1992). However, an exact
correlation in the factors discussed in Mitche//is not required, and courts “should
make an independent determination as to the relevancy of a particular aspect of
the plaintiff's employment status and that of the non-protected employee.”
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998);
Jackson v. FedEx Corporate Services, Inc., 518 F.3d 388, 396 (6th Cir. 2008) (“The
purpose of Title Vil and Section 1981 are not served by an overly narrow
application of the similarly situated standard.”
Although Plaintiff identified Associate Director Kuhne, Director Hepker,
James Dusenberry ("Dusenberry”), Catherine Gnau (“Gnau”), Cynthia Gress
(“Gress”) and James Kuck (“Kuck”) in her Complaint as potential comparators,
Doc. #1, PagelD#4, only Associate Director Kuhne and Director Hepker engaged in
the “same conduct” as Plaintiff is alleged to have engaged in, i.e., nepotism.
Neither of these two comparators, however, received any punishment.
Specifically, Plaintiff testified in her deposition that “when Ms. Hepker was
the director at Chillicothe she [Ms. Hepker] contacted the Columbus director
asking if there were positions that her husband could apply for[.]” Doc. #25,
PagelD#411. She also testified that Associate Director Kuhne’s brother-in-law was
hired and “assigned so he would be in her line of oversight,” but after supervisory
HR specialist John Westling reminded her of Plaintiff's demotion for a similar
action, her brother-in-law was reassigned “to another department that she did not
have oversight for[.]" /a., PagelD##413-414. Both Associate Director Kuhne’s and
14

Director Hepker’s actions arguably constitute nepotism, which is the “same
conduct” that formed the basis of Plaintiff's demotion. Based upon the cautionary
language in both Ercegovich, 154 F.3d at 352, and Jackson, 518 F.3d at 396, the
Court finds both Associate Director Kuhne and Director Hepker to be similarly
situated to Plaintiff. It does not find Plaintiff's employment status as a human
resource officer and service chief at the Ambulatory Care Center and later a
temporary Acting Associate Director to be relevant. Plaintiff's employment status
vis-a-vis the employment status of these two non-protected supervisors is a
distinction without a difference.
Defendant next argues that Associate Director Kuhne and Director Hepker
should not be considered comparators because to do so would permit Plaintiff to
contradict her sworn deposition testimony. Doc. #34, PagelD#685. The VA
contends in its Reply that Plaintiff testified twice at her deposition that
Dusenberry, Gnau, Gress and Kuck were the “only” similarly situated
comparators. Doc. #34, PagelD#686 (citing Doc. #25, PagelD#405). Although the
VA is correct that a plaintiff, in response to a motion for summary judgment,
cannot submit an affidavit that contradicts her earlier deposition testimony, Aerel,
S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 906 (6th Cir. 2006); Moore v. Lafayette
Life Ins. Co., 458 F.3d 416, 433-34 (6th Cir. 2006). The Court has reviewed the VA's
two asserted contradictions as well as the 37 pages of deposition testimony
preceding them and, for the reasons explained below, does not find any
“contradiction” in Plaintiff's testimony. Doc. #25, PagelD##368-405.
15

The deposition transcript shows that counsel for the VA questioned Plaintiff
about her interrogatory answer in which she identified only Dusenberry, Gnau,
Gress and Kuck as employees who were treated more favorably than she was and
“similarly situated” to her. Plaintiff's interrogatory answer described the four
individuals as “[Llike myself, ... service chiefs at the [A]mbulatory [C]are
[C]enter” with Director Hepker making “the final decision to take disciplinary
action or not.” Doc. #25, PagelD#161-62 (Doc. #25-2, PagelD#549). immediately
following this testimony, counsel for Defendant asked Plaintiff to identify other
individuals besides the four “service chiefs” referenced in her interrogatory
answer who received more favorable treatment. However, he restricted Plaintiff's
answer to other individuals who were “treated more favorably than you by”
Associate Director Kuhne and/or Director Hepker. Doc. #25, PagelD#369-70.
Q. “I'm going to go through each [of the four individuals] in a
moment, but first other than those four individuals. . . is there anyone
else that you can name that you believe was treated more favorably
than you?
A. That were similarly situated to me? As a comparator, right?
Q. Yes. Exactly. And particularly, since you’ve alleged discrimination
against Director Hepker and Associate Director Kuhne, it will be
eople treated more favorably than you by one or both of them that
you believe to be similarly situated.
* * +

Q. At any time. If you believe that they, excuse me, treated someone
more favorably than you at any time.
A. And it would be both of them?

16

Q. Either or both.
A. Okay. Those are the only four that | can remember right now, yes.
Those are the only four.
Q. Okay. Well, we'll ask if there's anybody else again after we go
through these four to try to exhaust it.
A. Okay.
Q. So let's start at the beginning. So[,] the first name is Cynthia
Gress?
/d. (emphasis added).
After testifying about the circumstances of the favorable treatment that
Associate Director Kuhne and/or Director Hepker accorded to each of the four
above-named service chiefs, ‘a. at PagelD##370-405, Plaintiff was asked if she
could think of anyone else. /a., PagelD#405.4 Because she responded that she
could not, Defendant argues that her Response that Associate Director Kuhne and
Director Hepker are similarly situated comparators contradicted this sworn
deposition testimony.
Because the questions from counsel for the Defendant limited the pool of
similarly situated comparators to those individuals who would have been treated

4 Plaintiff also identified Paula Spurlin as a possible comparator. However, she later
retracted her testimony concerning this witness and apologized for naming her because
she realized Spurlin was a supervisor and not one of the “[service chief[s] at the
[A]mbulatory [Clare [C]enter” and that Director Hepker was not at the VA at the time
Spurlin’s issue was addressed. “I'm sorry if that one was not applicable. .. she wasn’t at
the service chief level .. .Ms. Hepker had left by the time this action came up with Ms.
Spurlin. So[,] it would have been a little different[,] but it would have been different
altogether[,] but | just... wasn’t sure if it would be applicable. ..” /d. at PagelD#404.

17

more favorably by either Associate Director Kuhne or Director Hepker, the Court
does not find that Plaintiff contradicted her deposition testimony by arguing in her
Response that these two supervisors are comparators. Accordingly, there exists a
genuine issue of material fact as to whether a prima facie claim of discrimination
exists under the McDonnel/ Douglas-Burdine analysis.
Establishment of the prima facie case creates a “presumption that the
employer unlawfully discriminated against the employee.” Burdine, 450 U.S. at
254. Defendant then must rebut that presumption by articulating (but not proving)
a nondiscriminatory reason for the adverse employment action. /d. Here,
Defendant maintains that Plaintiff was demoted because she violated the VA’s
policies against nepotism. Specifically, Defendant contends that Plaintiff (1)
changed the position’s classification which, at a minimum, had the effect of
benefiting her husband, (2) neglected to distance herself from her husband's
hiring, (3) misrepresented to Director Hepker that she had “no involvement” in the
hiring process, and (4) even if Plaintiff’s actions were not intended to benefit her
husband, the mere appearance of nepotism is a sufficient independent basis for
demotion. Doc. #26, PagelD##580-584. Because Defendant's explanation is

18

consistent with both federal law’ and the VA’s handbook, /a., PagelD##562-564,
the Court finds that Defendant has met its burden of articulating a legitimate, non-
discriminatory reason for Plaintiff's demotion.
Should a defendant carry its burden of production, the plaintiff is still left
with an opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were instead merely a pretext for
discrimination. Burdine, 450 U.S. at 254. A plaintiff can show pretext by
demonstrating “that the proffered reasons (1) had no basis in fact; (2) did not
actually motivate the decisions; or (3) were insufficient to warrant the decisions.”
Roseman v. Int'l Union, UAW, No. 20-2151, 2021 WL 4931959, at *4 (6th Cir. 2021)

5 Under 5 U.S.C. § 3110(b), “[a] public official may not appoint, employ, promote,
advance, or advocate for appointment, employment, promotion, or advancement, in or to
a civilian position in the agency in which he is serving or over which he exercises
jurisdiction or control any individual who is a relative of the public official.”
Additionally, under 5 U.S.C. § 2302(b)(6), federal employees may not “grant any
preference or advantage not authorized by law, rule, or regulation to any employee or
applicant for employment (including defining the scope or manner of competition or the
requirements for any position) for the purpose of improving or injuring the prospects of
any particular person for employment.”
8 Defendant notes that VA rules and regulations emphasize that “extreme care” must be
taken to avoid not only nepotism, but even the appearance of nepotism:
Extreme care must be taken to avoid any possibility or likelihood that the nepotism
law may be violated in an employment action. Appointing and selecting officials
will be guided by the regulations and policy requirements in 5 CFR, part 310.
Management officials will take appropriate actions to avoid situations which have
the potential for, or appearance of, being in violation of nepotism requirements. As
a minimum, management officials and HRM Officers will identify and document
those instances in which relatives are employed, or are being considered for
employment, in the same organizational element or in positions within the same
chain of command.
Doc. #25-2, PagelD#509.
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(citations omitted). The Sixth Circuit has described the three-part test “as a
commonsense inquiry.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 & n.4 (6th Cir.
2009). The Court has also stated that “it is important to avoid formalism in its
application, lest one lose the forest for the trees. . .” since “[A]t the summary
judgment stage, the issue is whether the plaintiff has produced evidence from
which a jury could reasonably doubt the employer's explanation.” /¢. The
“burden is not heavy.” George v. Youngstown State University, 966 F.3d 446, 462
(6th Cir. 2020).
In Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.
1994), abrogated on other grounds by Gross v. FBL Fin. Servs., inc., 557 U.S. 167
(2009), the Court described the first and third showings as “direct attacks on the
credibility of the employer's proffered motivation” with the first requiring some
evidence that the reasons are “factually false.” /d. (quotations omitted). Evidence
for the third showing is somewhat different and “ordinarily, consists of evidence
that other employees, particularly employees not in the protected class, were not
fired even though they engaged in substantially identical conduct to that which
the employer contends motivated its discharge of the plaintiff.” /¢. These two
types of direct attacks on the employer’s credibility “provide an evidentiary basis
for what the Supreme Court has termed ‘a suspicion of mendacity.’” /a. (quoting
St. Mary’s Center v. Hicks, 509 U.S. 502, 511 (1993)). This showing permits the
factfinder “to infer illegal discrimination from the plaintiff's prima facie case.”

20

Manzer, 29 F.3d at 1084. Manzer’s second showing, however, is “of an entirely
different ilk:”
[T]he plaintiff admits the factual basis underlying the employer's
proffered explanation and further admits that such conduct could
motivate dismissal. The plaintiff's attack on the credibility of the
proffered explanation is, instead, an indirect one. In such cases, the
plaintiff attempts to indict the credibility of his employer's
explanation by showing circumstances which tend to prove that an
illegal motivation was more likely than that offered by the defendant.
In other words, the plaintiff argues that the sheer weight of the
circumstantial evidence of discrimination makes it “more likely than
not” that the employer's explanation is a pretext, or coverup.
Id. (emphasis in original).
Here, Plaintiff has produced sufficient evidence to create a genuine issue of
material fact concerning whether the asserted legitimate reasons offered by the
VA were instead a pretext for discrimination under both the second and third
Manzer showings. Defendant's stated motivations for demoting Plaintiff include
the following accusations: (1) changing the position’s classification benefitted
Plaintiff’s husband; (2) she did not adequately distance herself from her husband's
hiring process; (3) she misrepresented that she had “no involvement” in the
hiring process; and (4) her husband's hiring created the “appearance of
nepotism.” Doc. #26, PagelD##580-584. However, Plaintiff argues that based on
the weight of the evidence, race discrimination is a more likely motivator than any
of Defendant's four accusations. Doc. #1, PagelD#4. To that argument, the Court
finds that Plaintiff has provided sufficient evidence to create a genuine issue of
fact under both the second and third Manzer tests.

21

First, Plaintiff testified in her deposition that she never unilaterally chose to
reclassify the EMS Trainer position. The EMS department told Plaintiff it wanted
the EMS Trainer position to be a general schedule (“GS”) rather than a wage
grade (“WG”) position. Doc. #25, PagelD#240. Then, after Plaintiff informed
Director Hepker that she had reclassified the position as a GS-9 pay grade
consistent with the EMS department’s desires, Director Hepker told Plaintiff that
the position should be further reclassified as a GS-7 rather than GS-9. Doc. #25,
PagelD#241. According to Plaintiff's testimony, not once did Plaintiff reclassify the
position without explicit direction. Therefore, under the second Manzer test, while
Plaintiff's reclassification of the position certainly had the ultimate effect of
benefitting her husband, the factual circumstances surrounding her conduct could
allow a reasonable jury to conclude that an illegal motivation was more likely to
have motivated her demotion.
Second, Plaintiff testified that, prior to the start of her husband's
onboarding process, she informed both Director Hepker and VA Regional Counsel
Arlene Shively of the situation and requested guidance. Doc. #25, PagelD##307-
312. She further testified that she even offered to rescind her husband’s job offer
if Director Hepker thought doing so was necessary to avoid nepotism issues. /d.
Based on this testimony, a reasonable jury could conclude under the second
Manzer showing that Plaintiff acted pro-actively to remedy any potential nepotism
issues and that her demotion was not actually motivated by any alleged neglect in
addressing the nepotism issues. Plaintiff has also provided evidence of pretext
22

under the third Manzer showing. According to Plaintiff's deposition testimony,
Associate Director Kuhne arguably did not “distance herself” regarding her
brother-in-law’s hiring, including when she assigned him to be in her line of
oversight. Unlike Plaintiff, however, Associate Director Kuhne was not demoted,
but instead “reminded” by a supervisory HR specialist that her brother-in-law
should be reassigned to another department for which she did not have oversight.
Doc. #25, PagelD##413-414.
Third, while the VA contends that Plaintiff misrepresented her role by telling
Director Hepker and Ms. Shively that she had “no involvement in any part of the
[hiring] process at all,” Doc. #26, PagelD#567, a reasonable jury could conclude
otherwise. Specifically, Plaintiff testified that she (1) did not classify the position
for her husband's benefit, Doc. #25, PagelD#249; (2) did not help her husband with
the interview process, /d., PagelD#253; and (3) did not influence EMS Chief
Fulmore’s hiring decision. /d., PagelD##295-296. Accordingly, under the second
Manzer showing, Plaintiff's deposition testimony has created a genuine issue of
material fact concerning the truthful nature of her representations to Director
Hepker and Ms. Shively.
Finally, there exists a genuine issue of fact as to whether the hiring of
Plaintiff's husband into the EMS Trainer position created an “appearance of
nepotism” under both the second and third Manzer showings.Doc. #26,
PagelD#563. As alleged in the Complaint, Plaintiff's demotion was the result of an
“anonymous complaint made to the VA's Office of the Inspector General.” Doc.
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#1, PagelD#2. It is unclear whether that is sufficient to indicate an outward
appearance of nepotism. Additionally, if such an appearance was created simply
because of the shared named “Mzozoyana” and because the position was within
Plaintiff's chain of command as Associate Director, then it is unclear why Director
Hepker and Ms. Shively failed to raise these concerns in their initial conversations
with Plaintiff. Based on Plaintiff's testimony, Director Hepker and Ms. Shively were
seemingly aware of the basic factual circumstances surrounding the hiring.
When asked whether Director Hepker was aware that “someone in [Plaintiff's]
management chain was the selecting official for [her] husband's job,” Plaintiff
replied “yes.” Doc. #25, PagelD##410-411. Plaintiff also testified that she informed
Ms. Shively about her husband being “offered a job here as a Training Specialist.”
Doc. #25-2, PagelD#523. Those hiring circumstances seemingly did not warrant
nepotism concerns during Director Hepker and Ms. Shively’s initial conversations
with Plaintiff. Why then, did the “appearance of nepotism” later become a
significant motivation for Plaintiff’s demotion? Under the second Manzer
showing, the “sheer weight of the circumstantial evidence of discrimination
makes it ‘more likely than not’ that” the VA’s explanation for Plaintiff's demotion
“is a pretext, or coverup.” Manzer, 29 F.3d at 1084. Moreover, this same
“appearance of nepotism” was equally evident in Director Hepker’s efforts to find
a job for her husband and in Associate Director Kuhne’s initial assignment of her
brother-in-law to her “line of oversight.” Under the third Manzer showing,
concerns regarding this “appearance of nepotism” were not enough for either of
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these two supervisors to be demoted. Accordingly, under both the second and
third Manzer tests, whether an “appearance of nepotism existed” is the essence
of a genuine issue of material fact.
The Court finds that Plaintiff has provided sufficient evidence to create a
genuine issue of material fact for her Title VII race discrimination claim.
Accordingly, the Court overrules Defendant's Motion for Summary Judgement,
Doc. #26, on Count One.

IV. Count Two: Age Discrimination under the ADEA
Count Two of the Complaint alleges age discrimination in violation of the
ADEA. Doc. #1, PagedID#4, The ADEA makes it unlawful for an employer “to fail
or refuse to refer for employment, or otherwise to discriminate against, any
individual because of such individual's age, or to classify or refer for employment
any individual on the basis of such individual's age.” 29 U.S.C. § 623(b).
Like claims of race discrimination under Title VII, claims of age-based
discrimination under the ADEA can be proven by either presenting direct evidence
of discrimination or by presenting circumstantial evidence that would support an
inference of discrimination. Merhulik v. Weltman, Weinberg & Reis Co. LPA, No.
21-3773, 2022 WL 1583418, at *4 (6th Cir. May 19, 2022). Because Plaintiff has no
direct evidence that her demotion was due to her age, Doc. #25, PagelD#354, she
must present circumstantial evidence, which is analyzed under the McDonnell
Douglas burden shifting framework. As the Court previously explained, under the
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McDonnell-Douglas framework, a plaintiff must first establish a prima facie claim
of discrimination by a preponderance of the evidence. Texas Dep't of Cmty. Affs.
v. Burdine, 450 U.S. 248, 253 (citing McDonnell Douglas Corp v. Green, 411 U.S.
792 (1973)). Next, the burden of production shifts to the defendant “to articulate
some legitimate, nondiscriminatory reason for the employee's rejection.” /d. at

_ 254. Finally, the plaintiff then must prove by a preponderance of the evidence that
the reasons offered by the defendant were merely a pretext for discrimination. /d.
Plaintiff must first establish a prima facie claim of discrimination by a
preponderance of the evidence. For a prima facie case of age discrimination under
the ADEA, “a plaintiff must show: (1) membership in a protected group; (2)
qualification for the job in question; (3) an adverse employment action; and (4)
circumstances that support an inference of discrimination.” Blizzard v. Marion
Tech. Coll., 698 F.3d 275, 283 (6th Cir. 2012) (citing Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510 (2002)). Relevant here, such circumstances would include when
the employer “treated similarly situated, non-protected employees more
favorably.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 521-22 (6th Cir. 2008)
(citing Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 317 (6th Cir. 2007)). Courts
compare age discrimination plaintiffs to specific non-protected employees to
determine whether the other employee is similarly situated in all “relevant
respects.” Willard v. Huntington Ford, Inc., 952 F.3d 795, 809 (6th Cir. 2020) (citing
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).

26

Defendant argues that none of Plaintiff's four proffered comparators were
“similarly situated.” Doc. #26, PagelD##572-573. At the summary judgment stage,
“a district court considers whether there is sufficient evidence to create a genuine
dispute at each stage of the McDonnell Douglas inquiry.” Cline v. Catholic Diocese
of Toledo, 206 F.3d 651, 661 (6th Cir.2000). As the Court previously explained, a
reasonable jury could conclude that Plaintiff and her comparators Associate
Director Kuhne and Director Hepker engaged in the “same conduct,” and thus
were similarly situated. Therefore, there is a genuine issue of fact concerning the
prima facie showing of age discrimination under the ADEA.
Following the prima facie showing, the burden of production then shifts to
the defendant “to articulate some legitimate, nondiscriminatory reason for the
employee's rejection.” Burdine, 450 U.S. at 254. Here, Defendant maintains that
Plaintiff was demoted because she violated both federal law and the VA's policies
against nepotism, Doc. #26, PagelD##580-584. The Court finds that Defendant has
met its burden of articulating a legitimate reason for Plaintiff's demotion.
Finally, since Defendant carried its burden of production, Plaintiff must then
prove by a preponderance of the evidence that the legitimate non-discriminatory
reasons offered by the defendant were merely a pretext for discrimination.
Burdine, 450 U.S. at 254. As the Court has previously discussed in this Decision
and Entry, Plaintiff has provided sufficient evidence under both the second and
third tests of Manzer , 29 F.3d at 1084, to create genuine issues of material fact

27

concerning whether Defendant’s proffered motivations were instead a pretext for
discrimination.
The Court finds that Plaintiff has provided sufficient evidence to create a
genuine issue of material fact for her ADEA age discrimination claim. Accordingly,
the Court overrules Defendant's Motion for Summary Judgement, Doc. #26, on
Count Two.

V. Conclusion
For the reasons set forth above, Defendant’s Motion for Summary
Judgement, Doc. #26, is OVERRULED.

Counsel will take note that a telephone conference call will take place with
the Court beginning at 10:30 a.m. on Tuesday, November 15, 2022, to reset the
trial date and other dates leading to the resolution of this litigation.

Date: November 10, 2022 arwertcd Ce
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664829. Public record. Not legal advice.