Walker v. The Ohio National Life Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Jessica Walker, : Case No. 1:21-cv-448

:

Plaintiff, : Judge Jeffery P. Hopkins

:

vs. :

:

The Ohio National Life Insurance

:

Company,

:

:

Defendant.

OPINION AND ORDER

This is a Title VII retaliation case. Plaintiff, Jessica Walker (hereinafter “Plaintiff” or

“Ms. Walker”), filed this action against her former employer, The Ohio National Life

Insurance Company (hereinafter “Ohio National”) alleging retaliation based on her

exercising rights protected under Title VII of the Civil Rights Act of 1964. Doc. 14, PageID

49.

Currently before the Court are Ohio National’s Motion for Summary Judgment (Doc.

22), Plaintiff’s Opposing Memorandum (Doc. 29), and Ohio National’s Reply. Doc. 31. In

addition to these pleadings, Ohio National and Plaintiff filed Proposed Undisputed Facts

(“PUF”) (Docs. 22-1 and 30, respectively). In her PUF Response, Plaintiff admits, denies, or

seeks to qualify certain facts presented in Ohio National’s PUF surrounding the events

preceding her termination. Doc. 30. Many of the material facts set forth in both PUFs,

however, are undisputed.

For the reasons that follow, the Court GRANTS Ohio National’s Motion for

Summary Judgment (Doc. 22.) and DISMISSES Plaintiff’s Amended Complaint (Doc. 14)

WITH PREJUDICE.

I. BACKGROUND

This case arises out of Plaintiff’s disagreement with her termination from Ohio

National. See Doc. 14. Plaintiff is a self-described “attorney, with an L.L.M. in Business and

Taxation, who is licensed to practice law in the State of Ohio.” Id. at PageID 47. Plaintiff was

employed for five years with Ohio National from July 2012 until her termination in July 2017.

Id. Plaintiff worked in Ohio National’s “advanced planning department” as a “senior

advanced sales consultant.” Compare Doc. 22-1, PageID 1322 ¶ 1 with Doc. 30, PageID 1412

¶ 1. At the time Plaintiff worked for Ohio National, the advanced planning department

consisted of one CPA, Kelly Hall (“Ms. Hall”), and three advanced sales consultants all of

whom were lawyers, including Plaintiff, Adam Curry (“Mr. Curry”), and Jenna Washatka

(“Ms. Washatka”). Id. These four employees all reported to David Szeremet (“Mr.

Szeremet”), the head of the advanced planning department. Id.

Throughout her employment, Plaintiff and Mr. Szeremet did not always see eye-to-

eye. As early as 2015, Mr. Szeremet counseled Plaintiff to stop treating him with disrespect.

Compare Doc. 22-1, PageID 1323 ¶ 3 with Doc. 30, PageID 1412 ¶ 3. One example of what

Szeremet was referring to occurred in February of 2015. In that example, Plaintiff refused to

cancel a department-wide meeting that she unilaterally scheduled, despite repeated requests

by Mr. Szeremet to cancel the meeting. Id. ¶ 4. Mr. Szeremet told Plaintiff when the incident

occurred that “you’re refusing to follow my instructions. As the head of the advanced sales

department, I’m instructing you to cancel the meeting. . .this is not up for discussion.” Id.

Dissatisfied with Mr. Szeremet’s directive, Plaintiff brought the matter to the attention of

Ohio National’s Vice President of Human Resources, Pam Webb (“Ms. Webb”). Id.

According to Plaintiff, Ms. Webb informed her that her communications with Mr. Szeremet

had been “disrespectful.” Id. Only after holding a conversation with Ms. Webb from the

human relations department did Plaintiff finally cancel the meeting that her boss had

instructed her to cancel. Plaintiff admitted in testimony that this “would have been a few

days” after Mr. Szeremet’s final instruction and previous requests. Id.

Tensions among Plaintiff, Mr. Szeremet, and the rest of the Advanced Planning

Department continued to escalate in 2017. In the spring of 2017, Plaintiff sent emails to Ms.

Webb, Mr. Szeremet’s boss Karl Kreunen (“Mr. Kreunen”), and Mr. Kreunen’s boss Chris

Calabro (“Mr. Calabro”), accusing Mr. Szeremet of bullying her by reminding Plaintiff that

she had a negative personal time off or “PTO” balance. Compare Doc. 22-1, PageID 1325 ¶

11 with Doc. 30, PageID 1413 ¶ 11. Ms. Webb, as Ohio National’s Vice President of Human

Resources, later responded to Plaintiff informing her that Mr. Szeremet’s concerns about her

use of PTO were legitimate and did not constitute bullying. Id.

Also in the spring of 2017, Plaintiff’s coworkers began complaining to Mr. Szeremet

that she had become “combative and unfriendly” and that they did not like working with her.

Compare Doc. 22-1, PageID 1325 ¶ 12 with Doc. 30, PageID 1413 ¶ 12. Plaintiff began to

question Ms. Washatka’s use of PTO and other leave in comparison to her own, citing

concerns about Ms. Washatka’s leave usage dating back to 2015. Id. ¶ 13. Plaintiff was upset

that she and Mr. Curry, the other licensed attorney in the group, did not receive two-weeks

PTO when they started at Ohio National, but Ms. Washatka did. Id. Plaintiff concedes

knowing that Ms. Washatka was given the two-weeks PTO because she, unlike Plaintiff and

Mr. Curry, did not have her law license when she began working at Ohio National. Id. ¶ 14.

Plaintiff testified that she “always had an issue with” Ms. Washatka being given the two-

weeks PTO, as well as an issue with Ms. Washatka receiving the “90 days of FMLA maternity

leave that she had not yet earned.” Id. ¶ 15. Plaintiff testified that she began watching Ms.

Washatka and “collected evidence” about her time off work, which Plaintiff kept track of

through a calendar. Id. Plaintiff showed Mr. Szeremet and Ms. Webb the calendar, both of

whom told Plaintiff that she was not Ms. Washatka’s manager, and that it was not her job to

monitor Ms. Washatka’s PTO usage. Id. ¶ 16. Plaintiff admits that Ms. Webb viewed her

calendar tracking as a form of harassment against Ms. Washatka. Id. ¶ 17. Despite all the

above, the gravamen of the dispute that this Court must resolve largely centers around what

happened over next few days.

On July 25, 2017, Mr. Szeremet informed Plaintiff and the rest of the Advanced

Planning Department about a modified (but still full-time) work schedule they were considering

trying out on Ms. Washatka, who had recently returned from maternity leave. Compare Doc.

22-1, PageID 1326 ¶ 18 with Doc. 30, PageID 1413 ¶ 18 (emphasis added). Plaintiff told her

immediate supervisor, Mr. Szeremet, that she had questions about the modified schedule

contemplated for Ms. Washatka, but that she would not speak with him about her concerns.

Id. In keeping with her word, Plaintiff proceeded to go above Mr. Szeremet’s head. And on

July 25, 2017, Plaintiff sent an email to other senior managers at Ohio National including,

Ms. Webb, Mr. Kreunen, and Mr. Kreunen’s boss, Mr. Calabro. Id. Plaintiff’s email indicated

that Ms. Washatka was receiving “special treatment,” which she believed was

“discriminatory [and] unfair,” although Plaintiff admits that she did not tie her grievance to

any protected class. Id. ¶ 22. After Mr. Kreunen reviewed the email, on July 25, 2017, he

informed Plaintiff that he preferred to first have a conversation with her alone. Plaintiff

insisted, however, on including human resources and the legal department in the discussion.

Id. ¶ 23.

Yielding to her insistence, on July 26, 2017, Mr. Kreunen informed Plaintiff that he

would schedule a meeting for July 28, 2017, with Plaintiff, human resources, and the legal

department. Doc. 22-1, PageID 1328 ¶ 23 with Doc. 30, PageID 1414 ¶ 23. But Mr. Kreunen

also told Plaintiff that he would not discuss another employee’s work–related activity with

her. After hearing this from Kreunen and learning that Ohio National’s senior managers were

waiting to address her concerns at the July 28 meeting, Plaintiff fired off another email to Mr.

Kreunen, copying Mr. Curry, the other licensed attorney on the team. Id. ¶ 26. Within 30

minutes of receiving that email, Curry responded individually to Mr. Kreunen stating “I want

no part of this. If I have questions or want to participate. . . I will direct my questions to David

Szeremet or you.” Id. ¶ 27.

Like Mr. Kreunen, Ms. Webb advised Plaintiff that she needed to first have a

discussion with Mr. Szeremet or Mr. Kreunen regarding the concerns expressed in her July

25, 2017, email. Doc. 17-13, PageID 578. However, on July 27, 2017, Plaintiff still insisted

on including human resources and the legal department in those discussions because in her

words, she was “having trouble seeing how this [inquiry regarding Ms. Washatka’s modified

schedule] isn’t legal in nature.” Compare Doc. 22-1, PageID 1328 ¶ 24 with Doc. 30, PageID

1414 ¶ 24. In her July 27, 2017, email response to Ms. Webb and Mr. Kreunen, Plaintiff

attached U.S. Equal Employment Opportunity Commission (“EEOC”) materials regarding

compensation. Doc. 17-12, PageID 571. Plaintiff testified that her July 27, 2017, email was

the first time she referenced the EEOC. Doc. 21, PageID 1057.

The following day, on Friday July 28, 2017, Plaintiff’s previously scheduled meeting

with Ohio National’s senior managers took place. Compare Doc. 22-1, PageID 1330 ¶ 34 with

Doc. 30, PageID 1415 ¶ 34. Among those in attendance was Mr. Szeremet, Mr. Kreunen,

Ms. Webb, and Therese McDonough (“Ms. McDonough”), Ohio National’s Vice President

of Legal. Id. However, unbeknownst to the Ohio National managers gathered for the July 28

meeting, Plaintiff was secretly recording their conversation, during which time Ms. Webb told

Plaintiff “[t]here’s no reasonable basis that we are violating any laws.” Id. ¶ 36. The meeting

concluded after Plaintiff was asked if she was “currently alleging that [Ohio National is]

violating the law,” to which Plaintiff replied, “No. Not at this time.” Id. ¶ 37. On the following

Monday, July 31, 2017, Plaintiff was terminated by Ohio National. Id. ¶ 38. On the heels of

her firing, Plaintiff filed this action asserting that Ohio National retaliated against her for

engaging in protected activities in violation of Title VII.

II. STANDARD OF REVIEW

Ohio National now seeks an order from this Court granting summary judgment to

dismiss Plaintiff’s claim of retaliation under Title VII. “The ‘party seeking summary

judgment always bears the initial responsibility of informing the district court of the basis for

its motion and identifying those portions’ of the record which demonstrate ‘the absence of a

genuine issue of material fact.’” Rudolph v. Allstate Ins. Co., No. 2:18-cv-1743, 2020 WL

4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986)).

But the non-moving party cannot defeat summary judgment merely by pointing to any

factual dispute. Indeed, “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Int’l Outdoor, Inc. v. City of

Troy, 974 F.3d 690, 697 (6th Cir. 2020) (bracket and emphases omitted) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). In other words, the dispute must be

“genuine” (i.e., supported by evidence) and go to a “material fact” (i.e., a fact that could matter

to the outcome).

In sum, after reviewing the cited evidence, the Court must determine whether there is

some “sufficient disagreement” that necessitates submitting the matter to a jury. Moore v.

Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251–

52). In making that determination, though, the Court must view the evidence in the light

most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving

at a resolution, the court must afford all reasonable inferences, and construe the evidence in

the light most favorable to the nonmoving party.”).

III. LAW AND ANALYSIS

Plaintiff alleges that Ohio National terminated her in violation of Title VII. Doc. 14,

PageID 48. Specifically, Plaintiff alleges that she was retaliated against for opposing the

modified work schedule offered to another female coworker who had recently returned from

maternity leave. Id. Plaintiff alleges that she “threaten[ed] to contact the EEOC if [Ohio

National] implemented its modified work schedule program and did not offer the program to

all similarly-situated employees. . . because it was potentially discriminatory on the basis of

sex.” Id. Ohio National argues that summary judgment is warranted because Plaintiff’s

allegations regarding the modified work schedule are not afforded Title VII protected status.

Doc. 22, PageID 1301. And in any event, according to Ohio National, it terminated Plaintiff

not because she opposed any employment practice but “because, despite past warnings,

[Plaintiff] treated her supervisors disrespectfully, was unwilling to work with her supervisors,

and disrupted the department.” Id. The Court will address each of these arguments in turn.

A. Title VII Retaliation

Title VII makes it an “unlawful employment practice” for an employer to

“discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). To give an added measure of protection to see that this

important law is carried out, Title VII also prohibits employers from “discriminat[ing] against.

. . [an] employee . . . because [the employee] has opposed any [unlawful] employment

practice, or because [the employee] has made a charge” that the employer has engaged in an

unlawful employment practice. Id. § 2000e-3(a). A plaintiff who alleges retaliation in violation

of Title VII may establish the claim through direct or circumstantial evidence. Imwalle v.

Reliance Med. Prods., Inc., 515 F.3d 531, 543 (6th Cir. 2008). Here, Plaintiff asserts that there

is both direct and circumstantial evidence to support her claim of retaliation for opposing a

discriminatory employment practice or making a charge of discrimination. Doc. 29, PageID

1400–01.

i. Plaintiff has not produced direct evidence of retaliation.

“Direct evidence of discrimination does not require a factfinder to draw any inferences

in order to conclude that the challenged employment action was motivated, at least in part,

by unlawful discrimination.” Igwe v. Salvation Army, 790 F. App’x 28, 34 (6th Cir. 2019) (citing

Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003)). In other words, direct evidence “is

proof that . . . compels the conclusion that unlawful discrimination was at least a motivating

factor in the employer’s actions.” Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir. 2013)

(internal quotations and citations omitted). “Isolated and ambiguous comments are

insufficient to support a finding of direct discrimination.” White v. Columbus Metro. Hous.

Auth., 429 F.3d 232, 239 (6th Cir. 2005).

The testimony that Plaintiff relies on as direct evidence does not support such a

finding. And if anything, the so-called direct evidence Plaintiff relies upon actually

undermines her circumstantial case of discrimination, which requires “but-for” causation. Id.;

Kenney v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir. 2020). Plaintiff points the Court to the

testimony of her immediate boss’s supervisor, Mr. Kreunen, asserting that he made the

“decision to terminate Plaintiff’s employment because she complained of discrimination in

that [July 28, 2017,] meeting.” Doc. 29, PageID 1401. According to Plaintiff, her opposition

to her female coworker, i.e., Ms. Washatka having been offered a modified work schedule,

constitutes protected activity. Id. However, the testimony upon which Plaintiff relies (and

omitted pages leading up to it) demonstrate that Mr. Kreunen had already decided to

terminate Plaintiff before she made any comments that could be construed as protected

activity. Id.

Indeed, Mr. Kreunen explicitly testified that he made the decision to terminate

Plaintiff a few days before their July 28 meeting. Doc. 17, PageID 444–45. According to

Kreunen, he went forward with the July 28 meeting because it was previously scheduled, and

because it gave Plaintiff a final opportunity to say something that “might change his mind”

from firing Plaintiff. Id. at 445. In other words, Plaintiff’s so-called direct evidence of

discrimination is that she was retaliated against because Ohio National did not reverse course

on its termination decision after the July 28 meeting. Doc. 29, PageID 1400–01. Plaintiff’s

argument might prevail if that were the standard; but it is not. Which is to say that Mr.

Kreunen’s testimony is “not direct evidence because, if believed, [it] do[es] not require the

conclusion that unlawful discrimination was at least a motivating factor” in Ohio National’s

decision to terminate Plaintiff. Rodriguez-Monguio v. Ohio State Univ., 499 F. App’x 455, 460

(6th Cir. 2012).

ii. Plaintiff also has not produced sufficient circumstantial evidence of

retaliation.

Given the lack of proof substantiating Plaintiff’s claim of direct evidence of Title VII

retaliation, Plaintiff must rely on circumstantial evidence and the McDonnell Douglas burden-

shifting framework in order to make out a prima facie case. Salvation Army, 790 F. App’x at 34.

Under this framework, Plaintiff must show four elements: 1) she engaged in activity protected

under Title VII; (2) Ohio National knew that she exercised her protected rights; (3) an adverse

employment action was subsequently taken against her; and (4) Plaintiff’s alleged protected

activity was the “but-for” cause of her termination. Kenney, 965 F.3d at 448.

If Plaintiff meets all four elements, she will have established her prima facie case of

retaliation. Kenney, 965 F.3d at 448. The burden will then shift to Ohio National to articulate

a legitimate nondiscriminatory reason for Plaintiff’s termination. Id. If Ohio National carries

its burden, Plaintiff must show that the justifications offered by Ohio National were not true

but were a pretext for discrimination—a burden she can meet by showing that the proffered

reason “(1) has no basis in fact; (2) did not actually motivate the adverse employment action;

or (3) was insufficient to warrant the adverse action.” Manzer v. Diamond Shamrock Chems. Co.,

29 F.3d 1078, 1084 (6th Cir. 1994). Plaintiff and Ohio National’s disagreement over the facts

present relates to the first, second, and fourth elements of the prima facie case Plaintiff must

elicit to survive summary judgment.

Ohio National would have the Court believe that Plaintiff’s complaints regarding the

modified work schedule of her coworker do not amount to protected activity, i.e., they are not

afforded Title VII protection. Doc. 22, PageID 1301. Ohio National further argues that

Plaintiff cannot establish but-for causation or pretext because it made the decision to

terminate her well before she made any comments that could be construed as protected

activity. In any event, according to Ohio National, the company terminated Plaintiff for

continually being disrespectful and insubordinate, and continually disrupting the work

environment. Id. Naturally, Plaintiff has a different take on both the evidence and the law.

She argues that her complaints are protected under Title VII, and that Ohio National’s

contention that it made the termination decision before she complained about her coworker

receiving special treatment is “unsupported by fact.” Doc. 29, PageID 1407. The Court will

address each of these arguments in order.

a. Plaintiff’s complaints are not protected activity under Title

VII.

Ohio National argues that the complaints Plaintiff made about her female coworker’s

modified (but still full-time) work schedule were unreasonable and did not constitute

protected under Title VII. Ohio National points first to the fact that “[Plaintiff] and her other

coworkers, both male and female, were not offered the modified work schedule[.]” Plaintiff

does not dispute this fact. Doc. 22, PageID 1311; Compare Doc. 22-1, PageID 1328 ¶ 27 with

Doc. 30, PageID 1414 ¶ 27. Second, Ohio National argues that as an attorney, Plaintiff could

not reasonably believe “that conduct that affected members of protected and unprotected

classes alike was unlawful sex discrimination.” Id. at PageID 1312. Plaintiff argues in

response that she was not required to show that the modified schedule was actually unlawful

for her retaliation claim to withstand summary judgment. Doc. 29, PageID 1400–01.

Although Plaintiff's assertion may hold some truth, it does not substantiate her claim

under the applicable law. “[T]o come within the protection of Title VII, [Plaintiff] must

establish that [she] challenged an employment practice that [she] reasonably believed was

unlawful.” Yazdian v. ConMed Endoscopic Technologies, Inc., 793 F.3d 634, 645 (6th Cir. 2015)

(emphasis added). Of critical import here is that an employee’s reasonable belief involves

“objective and subject components.” Yazdian, 793 F.3d at 645 (emphasis added). That is, the

employee must “actually believe[] that the conduct complained of constituted a violation of

relevant law,” and “a reasonable person in the same factual circumstances with the same

training and experience as the aggrieved employee” would believe that the conduct

complained of was unlawful. Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797, 2015 WL

3404658, at *11 (6th Cir. 2015) (internal quotation marks omitted) (interpreting the

reasonable-belief requirement of the Sarbanes-Oxley Act’s anti-retaliation provision).

Protected activity has included “complaining to anyone (management, unions, other

employees, or newspapers) about allegedly unlawful practices.” Johnson v. Univ. of Cincinnati,

215 F.3d 561, 579 (6th Cir. 2000). Title VII does not protect an employee, however, if her

opposition is merely a “vague charge of discrimination. Otherwise, every adverse

employment decision by an employer would be subject to challenge. . . simply by an employee

inserting a charge of discrimination. In our view, such would constitute an intolerable

intrusion into the workplace.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313

(6th Cir. 1989). See Fox v. Eagle Distrib. Co., 510 F.3d 587, 591 (6th Cir. 2007) (finding the

plaintiff did not engage in protected activity because his statements to his manager were too

ambiguous to amount to an opposition of an unlawful employment practice); see also Barber v.

CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. 1995) (finding that although it was “clear”

that the plaintiff “felt he had been treated unfairly,” his letter did not constitute protected

activity because a “general complaint of unfair treatment does not translate into a charge of

illegal age discrimination.”)

As earlier noted, Plaintiff admits that her July 25, 2017, email to Ms. Webb, Mr.

Kreunen, and Mr. Calabro complaining that Ms. Washatka was receiving “special

treatment,” which she believed was “discriminatory [and] unfair” did not mention any

protected class. Compare Doc. 22-1, PageID 1327 ¶ 22 with Doc. 30, PageID 1414 ¶ 22.

Given these facts, Ohio National argues that Plaintiff’s conduct is not covered by Title

VII. According to Ohio National, “simply mentioning the EEOC” in her July 27, 2017, email

and “ma[king] vague statements during the [July 28, 2017,] meeting about gender and

motherhood” does not constitute protected activity. Doc. 22, PageID 1314–15. Also,

according to Ohio National, because the “alleged favoritism affected legally protected and

unprotected classes alike,” the company “could not have understood that [Plaintiff’s]

complaint related to. . . unlawful sex discrimination[.]” Doc. 22, PageID 1312. Finally, Ohio

National contends that Plaintiff should have known that her complaints about a coworker did

not give rise to a claim of retaliation because “a reasonable lawyer would not believe that

conduct that affected members of protected and unprotected classes alike was unlawful sex

discrimination.” Id. Plaintiff counters by arguing that she “had a good faith belief that [Ohio

National’s] practices were in violation of Title VII” because she is “not an employment or

civil rights lawyer.” Doc. 29, PageID 1400–01.

The Court finds that Plaintiff’s conduct regarding her female coworker’s modified

schedule is not protected activity under Title VII. The Court takes Plaintiff at her word,

especially her expressions that she “always had an issue” with her coworker Ms. Washatka.

Compare Doc. 22-1, PageID 1326 ¶ 15 with Doc. 30, PageID 1414 ¶ 15. It is clear from

Plaintiff’s admissions (and her filing this action) that she was dissatisfied with what she

described as Ms. Washatka receiving “special treatment.” Id. at ¶ 22. However, in the context

of this case, Plaintiff’s complaints about Ms. Washatka’s work schedule made to Ohio

National managers do not amount to kind of activities that are protected under Title VII. In

this Court’s view, no reasonable person—to say the least an attorney—could “actually

believe” that offering a modified (but still full-time) schedule to one female coworker, when

the same schedule was not available to both men and women, constitutes sex discrimination.

Rhinehimer, 2015 WL 3404658, at *11. Under the circumstances, Plaintiff did not engage in

any form of protected activity by complaining about her coworker’s alleged “special

treatment,” in the face of the lack of any proof being offered to show that she or any of her

male coworkers had been the subject of any unlawful discrimination. Plaintiff has failed to

establish the first element of her prima facie case—that she engaged in activities protected by

Title VII. As such, her retaliation claim fails as a matter of law. Kenney, 965 F.3d at 448.

b. Even if Plaintiff’s complaints about a coworker constituted

protected activity under Title VII, her claim still fails because

she cannot demonstrate but-for causation or pretext.

Even if Plaintiff’s conduct—complaining about a coworker being considered for an

alternative full-time work schedule—could be characterized as protected activity under Title

VII, the claim still fails because Plaintiff cannot establish the “but-for” causation of her prima

facie case or demonstrate that Ohio National’s stated reason was pretextual under McDonald

Douglas. Here again, Plaintiff relies heavily on temporal proximity as the basis of her claim of

retaliation. She contends that including the EEOC materials that she sent to Ms. Webb and

Mr. Kreunen about compensation on Thursday, July 27, 2017, along with the comments she

expressed during the meeting on Friday, July 28, 2017, all show a causal connection between

her termination and alleged protected activity. Doc. 29, PageID 1403–08. According to

Plaintiff, the events that took place on July 27th and July 28th were the real reasons for her

termination and Ohio National’s stated reasons—Plaintiff’s continual disruption of the work

environment, disrespect her manager, insubordination, and breaching the chain of

command—were merely a pretext. Id. Ohio National counters by arguing that both Plaintiff’s

causation and pretext arguments fail because it made the decision to terminate Plaintiff before

the events of July 27th and July 28th. Doc. 22, PageID 1306–07 (emphasis added).

The Supreme Court’s ruling in U. of Texas S.W. Med. Ctr. v. Nassar is instructive here.

Nassar established that Title VII retaliation claims must be proved according to traditional

principles of but-for causation, not the lesser causation test stated in 42 U.S.C. § 2000e–2(m).

See 570 U.S. 338 (2013). Under Nassar, plaintiffs now must prove that the “unlawful

retaliation would not have occurred in the absence of the alleged wrongful action or actions

of the employer.” Id. at 360. Otherwise, as the Supreme Court explained, “an employee who

knows that he or she is about to be fired. . . [t]o forestall that lawful action, . . . might be

tempted to make an unfounded charge of racial, sexual, or religious discrimination; then,

when the unrelated employment action comes, the employee could allege that it is

retaliation.” Id. at 359; see also Wheelwright v. Clairol, Inc., 770 F. Supp. 396, 401 (S.D. Ohio

1991) (“[W]e find that the timing of the plaintiff’s discharge alone does not establish a causal

connection, where the plaintiff was repeatedly warned. . . and told he would be discharged if

his performance did not improve.”)1

Along these same lines, the Sixth Circuit has repeatedly stated that “we require more

evidence than temporal proximity to support an inference of but-for causation.” Bush v.

ProMedica Toledo Hosp., Inc., No. 21-3444, 2022 WL 221639, at *4 (6th Cir. Jan. 26, 2022)

(citing Kenney, 965 F.3d at 448–49). There are exceptions to the rule, but the Sixth Circuit has

made clear that they “are rare, even in instances involving relatively short time periods.”

Kenney, 965 F.3d at 449 (emphasis added). The Sixth Circuit has also said that an “employee

is not protected [under Title VII] when he violates legitimate rules and orders of his employer,

disrupts the employment environment, or interferes with the attainment of his employer’s

goals.” Booker, 879 F.2d at 1313 (citing Unt v. Aerospace Corp., 765 F.2d 1440, 1446 (9th Cir.

1985)). The requirement that the workplace environment not be disrupted has been deemed

not to violate Title VII because in those “instances where the employee’s conduct in protest

of an unlawful employment practice so interferes with the performance of [her] job. . . it

renders [her] ineffective in the position for which [s]he was employed[.]” Id.

The record before this Court demonstrates that Plaintiff’s conduct falls squarely within

the type of disruptive employee behavior contemplated by the Supreme Court and Sixth

Circuit cited. As discussed, Plaintiff had ongoing issues with Mr. Szeremet and Ms. Washatka

1As stated, Mr. Szeremet previously issued Plaintiff a formal reprimand, which stated that “[y]our

communication with me has been disrespectful and has shown an unwillingness to follow instructions. . . [y]our

performance must improve in these areas. This disciplinary action is being taken with the expectation that you

will be respectful of your supervisor.” Compare Doc. 22-1, PageID 1324 ¶ 5 with Doc. 30, PageID 1412 ¶ 5.

Despite Mr. Szeremet acknowledging in Plaintiff’s 2015 year-end evaluation that she had shown improvement,

Mr. Szeremet noted that she needed to “communicate in a positive and respectful manner, [and] [b]e cognizant

of word choices and tone of communication” in her 2016 year-end evaluation. Id. ¶ 7.

dating back to 2015. See supra, Section I. A few months after Ms. Webb informed Plaintiff

that her behavior toward Mr. Szeremet had been disrespectful, Mr. Szeremet issued Plaintiff

a formal “disciplinary action. . . taken with the expectation that [Plaintiff] will be respectful

of [her] supervisor[s].” Id. Despite those warnings, Plaintiff continued to exhibit disrespectful

behavior towards her boss and, without authorization, to track Ms. Washatka’s PTO use

through a calendar, which Ms. Webb viewed as a form of harassment. Id. In addition, instead

of raising her concerns about her perception that Ms. Washatka’s was receiving “special

treatment” with her immediate boss, Mr. Szeremet,2 as she had been directed, Plaintiff

decided unilaterally to break the chain-of-command by addressing this issue directly with Mr.

Kreunen and his boss, Mr. Calabro. Id.

Mr. Kreunen’s testimony that he decided to terminate Plaintiff before her July 27, 2017,

email to him and before the July 28, 2017, meeting is unrefuted. Doc. 17, PageID 443–45.

Indeed, “the final straw” on Kreunen’s decision to terminate came when Plaintiff insisted on

convening a meeting with the senior managers over her coworker’s employment history after

being told the matter was closed. Doc. 17, PageID 443–44 (emphasis added). Given these

facts, it is clear that Ohio National’s decision to terminate Plaintiff was predicated on her

disruptive conduct and not any protected activity.

Plaintiff’s remaining arguments regarding causation and pretext are just as easily

disposed of. See supra, Section III.A.ii.a. Plaintiff’s contention that she was “terminated within

2 Mr. Szeremet testified that his attempt to meet with Plaintiff individually on July 25, 2017, i.e., before the July

27 and July 28 events that Plaintiff claims prompted her termination, “lasted probably a minute and a half

because she didn’t want to talk to me.” Doc. 17, PageID 307. At that point, Mr. Szeremet testified that he

went to his supervisor and said “Karl [Kreunen], I can’t. We’re at the point now where [Plaintiff] won’t talk

to me. She rarely meets with me. She won’t loop me in on important work matters. This is not a workable

relationship any longer.” Id. (emphasis added).

a few days of. . . voic[ing] her concerns about gender discrimination,” without more, fails to

show unlawful retaliation under Title VII. Doc. 29, PageID 1404. In an effort to show

retaliation, Plaintiff relies heavily on the Sixth Circuit’s decision in DiCarlo v. Potter, 358 F.3d

408 (6th Cir. 2004). Plaintiff argues that her termination qualifies as a “certain distinct case”

where the closeness in time “permit[s] an inference of retaliation[.]” Id. Plaintiff’s heavy

reliance on DiCarlo, however, is misplaced. Unlike Plaintiff here, “[i]t [was] clear that DiCarlo

[the plaintiff in that case] engaged in protected activity.” 358 F.3d at 420. The DiCarlo plaintiff

met with an EEOC counselor to discuss the disparate treatment he was experiencing in the

workplace, which led him to file a complaint with the EEOC office alleging discrimination

based upon national origin, age, and disability as well as retaliation—activities which are

clearly protected under Title VII. Id. at 413.

Here, Plaintiff claims merely that her coworker, also a member of a protected class,

received “special treatment” not offered by Ohio National to any other employees, male or

female. This “special treatment” includes two weeks of PTO to study for the bar exam before

starting work at Ohio National and the potential that the coworker might be offered a

modified (but still full-time) schedule after giving birth—management decisions that Plaintiff

opposed, but which do not amount to unlawful employment practices actionable under Title

VII, especially when the evidence of Plaintiff’s insubordination supporting her termination

was so overwhelming. Moreover, DiCarlo relied on the outdated lower “causal connection”

standard to establish a prima facie case, rather than the more recent heightened “but-for”

causation established by the Supreme Court. Compare Nassar, 570 U.S. 338 with DiCarlo, 358

F.3d 408. Contrary to Plaintiff’s assertions, this case is not one of those “rare instances,”

Kenney, 965 F.3d at 449, that justifies an exception to the “require[ment] [of] more evidence

than temporal proximity to support an inference of but-for causation” on the record now

before the Court. ProMedica Toledo Hosp., Inc., 2022 WL 221639, at *4.

Finally, Plaintiff argues that Ohio National’s assertion that it made its termination

decision before she complained about a purported violation of Title VII is “unsupported by

fact.” Doc. 29, PageID 1391. Plaintiff argues that since the decision was not documented by

“email” or some other medium “in this age of digital communications,” that that, “in and of

itself, would permit a reasonable finder of fact to conclude” that Ohio National made its

decision after she began to complain. Id. Plaintiff’s argument conflates the absence of evidence

as evidence of retaliation—an obligation under McDonald Douglas—that Plaintiff still has the

burden of shouldering. In other words, Plaintiff incorrectly asserts that Ohio National’s failure

to produce digital evidence of its termination decision is proof in and of itself that the decision

was predicated on a discriminatory reason. But that is not the standard; and by making that

argument, Plaintiff openly disregards her burden at the summary judgment stage.

As noted at the outset, as the non-moving party Plaintiff cannot defeat summary

judgment merely by pointing to any factual dispute. See supra, Section II. The factual dispute

must be material, and the proof offered must demonstrate that Plaintiff’s allegations of

retaliation in violation of Title VII are supportable through direct or circumstantial evidence.

Imwalle, 515 F.3d at 543. Plaintiff’s argument is unpersuasive in this context because “the

mere existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact.” City of Troy, 974 F.3d at 697 (bracket and emphases omitted)

(quoting Anderson, 477 U.S. at 247–48). In other words, the dispute must be “genuine” (i.e.,

supported by evidence) and go to a “material fact” (i.e., a fact that could matter to the

outcome).

There is no such genuine factual dispute here. To be sure, Plaintiff’s testimony

extinguishes all controversy. When asked explicitly by Ohio National whether it was true that

she didn’t “know when the Company decided to terminate [her] employment,” Plaintiff

testified “[t]hat is correct.” Doc. 17, PageID 250 (emphasis added). This evidence coupled

with Kreunen’s uncontroverted testimony that “[a]gain, [Plaintiff] not working with [her]

management, showing disrespect. But then this third aspect appearing [unilaterally involving

her coworkers Adam Curry and Kelly Hall after being told the matter was closed], was for

[him] the final straw” clearly shows that the decision to terminate Plaintiff was made on July

26, 2017—before the so-called July 27 or 28 protected activities she so heavily depends on.

Doc. 17, PageID 443–44 (emphasis added).

After reviewing all the facts and circumstances surrounding Plaintiff’s termination,

including those leading up to that decision by Ohio National’s senior management, the Court

finds that this case does not present a “sufficient disagreement” that necessitates submitting

the matter to a jury. Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting

Anderson, 477 U.S. at 251–52). At bottom, the evidence supports Ohio National’s decision to

terminate Plaintiff for insubordination and disruption of the workplace. And that decision

was not predicated on retaliation against Plaintiff for engaging activities protected under Title

VII.

IV. CONCLUSION

For the reasons stated, the Court GRANTS the Motion for Summary Judgment of

Ohio National (Doc. 22) and DISMISSES Plaintiff’s Amended Complaint (Doc. 14) WITH

PREJUDICE. The Court ORDERS the clerk to ENTER JUDGMENT and TERMINATE

this matter from the docket.

SO ORDERED

September 30, 2024 i. □

effery P’ Hopkins

United States District Judge

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