Adefurin v. Meharry Medical College

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

)

ABIODUN ADEFURIN, )

) NO. 3:21-cv-00791

Plaintiff, )

) JUDGE RICHARDSON

v. )

)

MEHARRY MEDICAL COLLEGE, )

)

Defendant. )

)

)

)

MEMORANDUM OPINION

Pending before the Court is the motion for summary judgment of Defendant Meharry

Medical College (“Defendant”) (Doc. No. 19). In its Motion, Defendant asks the Court to grant

summary judgment in its favor pursuant to Federal Rule of Civil Procedure 56. Plaintiff, Abiodun

Adefurin, filed a response to Defendant’s Motion (Doc. No. 27), and Defendant has filed a reply

in support of its Motion (Doc. No. 34).

For the reasons discussed herein, the Court will grant Defendant’s Motion.

BACKGROUND1

Defendant operates a “health science center,” which includes a medical school in

Nashville, Tennessee. (Doc. No. 20 at 1–2; Doc. No. 27 at 1). Plaintiff is a medical doctor and

worked for Defendant as a resident physician in Defendant’s medical residency program from July

2016 to June 2019. (Doc No. 28 ¶ 1). Yvonne Berko (“Chief Resident”) was the co-chief resident

for the 2018-19 academic year and the chief resident at the Alvin C. York Veteran’s Administration

Medical Center in Murfreesboro (“VA Medical Center”).2 (Id. ¶¶ 4, 6).

1 The facts that are stated herein without qualification are undisputed—a term the Court will use to describe

both facts that are not in dispute at all and facts that are not in genuine dispute—and are treated as such.

Alleged facts that are qualified here in some way (as for example by being prefaced with “Plaintiff contends

that”) are in dispute and are treated as such.

Some of the facts herein come from Plaintiff’s responses to Defendant’s statement of undisputed facts

(Doc. No. 28) (“Plaintiffs’ Responses”). Other facts herein come from Defendant’s responses to Plaintiff’s

statement of undisputed material facts (Doc. No. 35). In its Responses, Defendant makes at least one

objection to each of the 50 paragraphs, for the most part based on Local Rule 56.01(b) and on the argument

that the facts asserted are either not material, or argumentative, or both. (See generally Doc. No. 35). The

objections based on Local Rule 56.01(b), which requires in relevant part that “[e]ach fact . . . be set forth

in a separate, numbered paragraph,” are well taken but are denied for the sake of judicial efficiency. The

Court will also deny the objections based on materiality—or lack thereof—for the reasons explained in its

Order on Defendant’s “Motion to Strike Declaration of Adefurin, M.D.” (See generally Doc. No. 41).

Defendant also objects to some statements on the basis that “the record citations do not support” the

statements at issue. (See generally Doc. No. 35). These are not truly objections but rather an indication that

Defendant disputes these facts, and the Court will construe these objections accordingly. Finally, Defendant

objects to some statements on the basis that they are not statements of “facts” at all. (See generally id.

(citing F.T.C. v. Internet Mktg. Grp., Inc., No. 3:04-0568, 2006 WL 273540, at *7 (M.D. Tenn. Feb. 2,

2006) (rejecting attempts to disguise inferences and arguments as facts))). The Court disagrees that these

statements contain no (alleged) facts but will disregard any arguments in such statements and will draw no

impermissible inferences therefrom.

Other facts contained herein come from record evidence (such as depositions) and are cited (as being

accurate) by the opposing parties in their respective briefing. Other facts (background, uncontroversial

ones) are mutually stated in the parties’ opposing briefing (Doc. Nos. 20, 27, 34).

Finally, some of the facts contained herein come from uncontroverted portions of Plaintiff’s Complaint

(Doc. No. 1).

There are other purported facts that are disputed but are evidentially supported and are asserted by

Plaintiff or Defendant, as the case may be with respect to a particular fact, to support the asserting party’s

view as to whether there is or is not a genuine issue of material fact as to a particular claim. The Court treats

these purported facts as potentially but necessarily true and refers to them, and the evidence supporting

them, in appropriate places in its analysis below.

2 Plainly, Plaintiff was assigned to (i.e., rotated through) the VA Medical Center for a period of time during,

and as part of, his participation in Defendant’s medical residency program their residency.

On April 13, 2018, Plaintiff requested paternity leave under the Family and Medical Leave

Act (“FMLA”), 29 U.S.C. § 2601 et. seq., which Defendant approved. (Id. ¶ 2). Plaintiff’s leave

began on May 27, 2018, and ended on June 11, 2018. (Id. ¶ 3; Doc. No. 1 ¶ 9). Defendant’s

Program Director for Internal Medicine (“Program Director”) recalls that “there was talk among

[r]esidents . . . [about some residents] abusing FMLA leave” at Defendant’s medical school

“during the relevant timeframe.” (Doc. No. 35 ¶ 27; see Doc. No. 27 at 1–2). The Program Director

raised this issue of repeated instances of FMLA leave by residents in a group text message (“Group

Message”) referencing a meeting with residents and chief residents in June of 2018. (Doc. No. 28

¶¶ 30–32). In relevant part, the Group Message states:

There are two things that arose during the meeting though:

A) The fact that people have been calling in sick/requesting FMLA [sic] and the disruption

in clinic. Although the leadership know [sic] some of those requests are genuine, they have

also noticed a repetitive pattern which has raised concerns among the attending[]

[physicians] who are now questioning our reasons. [T]hey mentioned that there would be

repercussions if they find a pattern, which can potentially hurt our recommendations for

work in the future . . . [.]

(Doc. No. 29-3).

On October 5, 2018, after the end of his period of FMLA leave, Plaintiff was scheduled to

work at the VA Medical Center but did not report for his shift on that day because he was out of

town. (Doc. No. 28 ¶ 5; Doc. No. 35 ¶ 34). Plaintiff did not inform the Chief Resident that he

would not work on October 5, 2018, “because [the Chief Resident] was not at work that entire

week.” (Id. ¶ 35; Doc. No. 28 ¶¶ 7–10). Plaintiff, however, “notified his two [a]ttending

[p]hysicians that he would be off.” (Doc. No. 35 ¶ 36). There was also “no need to fill out a leave

request form” for a resident taking only one or two days off. (See id. ¶ 39). On that same evening,

a Friday, the Chief Resident emailed Plaintiff, asking why he did not show up to work. (Doc. No.

28 ¶ 11). Plaintiff did not respond to this email. (Id. ¶ 13). There was “no policy requirement” that

Plaintiff respond to this email because it was sent after hours. (Doc. No. 35 ¶ 40). On Monday

morning, the Chief Resident emailed Plaintiff again, “reiterat[ing] her request for an explanation

for [Plaintiff’s] absence, [Plaintiff’s] failure to notify [the Chief Resident] of his absence, and

[Plaintiff’s] failure to respond to [the Chief Resident’s] Friday email.” (Doc. No. 28 ¶ 12). That

afternoon, Plaintiff responded:

Hi [Chief Resident],

I was away on Friday 10/05/2018 for an interview. The podiatrist who I was to be with

Friday morning was fully aware of my interview and my . . . attending [physician] was also

fulling [sic] aware and he was okay for me to go for my interview as we had backup

coverage for my clinic patients.

However, from Monday 10/01 to Thursday 10/04 while I was in the VA [Center], you were

absent from work. I asked a fellow resident about your presence and the resident informed

me he/she had spent 2 weeks in the VA [Center] without seeing you at work. If you were

not absent from work, I would have informed you of my interview on Friday.

Furthermore, I did not work over the weekend and as such this email response is within

one business day of your first email that was sent late Friday evening which is in contrast

to the three days you alluded to in your last email.

Let me know if you have any additional questions.

(Id. ¶ 13).

“On October 22, 2018, the Chief Resident issued a written reprimand to Plaintiff for

unprofessional conduct . . . and referred him to the [relevant committee] for disciplinary action.

(Id. ¶ 14). The grounds for the reprimand were, inter alia, Plaintiff’s failure to request permission

for his absence as well as the “extremely contemptuous” email response, which the reprimand

describes as “generally disrespectful and connotat[ing] disdain.” (See Doc. No. 22-1 at 123).

Plaintiff appeared before said committee the next day, received a two-week suspension, and

learned that the suspension “would be reflected in his permanent folder and reported to any

inquiries concerning his training.” (Doc. No. 28 ¶¶ 14–15; see also Doc. No. 22-1 at 125–26 (letter

of suspension)). The committee provided Plaintiff with a summary of his “violations” and

“professional misconduct” in a letter of suspension, dated November 1, 2018, as follows: (1)

“insubordination to a superior through deliberate refusal to respond to her queries of your

whereabouts”; (2) “[l]eaving your work and post without . . . written permission”; (3)

“[d]isrepectful and [u]nprofessional behavior towards a supervisor when you finally decided to

respond 3 days or so later.” (Doc. No. 22-1 at 126). The committee “did not conduct [its] own

investigation” or speak to the attending physicians that Plaintiff had notified of his absence and

“relied solely on the information provided by [the Chief Resident.]” (Doc. No. 35 ¶ 42–43).

Plaintiff unsuccessfully appealed this decision, which was unanimously upheld by an appellate

committee on December 6, 2018. (Doc. No. 28 ¶¶ 17–18; see also Doc. No. 22-1 at 131 (decision

of the appellate committee)). The appellate committee also recommended that Plaintiff be required

to complete a “professionalism course.” (Id.). Plaintiff’s suspension was in effect from December

9, 2018, through December 22, 2018. (Id. ¶ 19). “Other residents [who failed to show up for their

respective shifts were] not suspended,” but Defendant denies that these other residents were

situated similarly to Plaintiff. (Doc. No. 35 ¶ 50).

“It is possible to expunge the suspension from [Plaintiff’s] record.” (Id. ¶ 44). Plaintiff met

with Defendant’s Chair of Internal Medicine (“Chair”), with whom he discussed “wiping his

record clean.” (Id. ¶ 45). Plaintiff “completed all of what was required of him,” but Defendant

“refused to remove the discipline from his record.” (Id. ¶ 46). Specifically, the Chair wrote Plaintiff

a recommendation letter but refused to remove the disciplinary action from Plaintiff’s academic

file. (Id. ¶ 47; see also Doc. No. 29-11 (letter of recommendation)). A disciplinary action “follows

a doctor . . . and inhibits [his or her] ability to get medical board licensing, credentialing, and

employment.” (Id. ¶ 49). Plaintiff was rejected for a position with a prospective employer in

September of 2019. (Doc. No. 28 ¶ 20). According to Plaintiff, this rejection was caused by his

suspension by Defendant. (See id. ¶ 22).

Defendant alleges that the discipline and suspension were in retaliation for him exercising

his rights under the FMLA. (See Doc. No. 1 ¶¶ 21–25). That is, his (sole) claim is one of so-called

“FMLA retaliation,” i.e., retaliation in violation of the FMLA, namely 29 U.S.C. § 2615(b).

LEGAL STANDARD

A. Summary Judgment

Summary judgment is appropriate where there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “By its very terms,

this standard provides that 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247–48 (1986). In other words, even if genuine, a factual dispute that is irrelevant under applicable

law is of no value in defeating a motion for summary judgment. See id. at 248. On the other hand,

“summary judgment will not lie if the dispute about a material fact is ‘genuine[.]’” Id.

A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect

the outcome of the suit under the governing substantive law.” Reeves v. Swift Transp. Co., 446

F.3d 637, 640 (6th Cir. 2006) (citing Anderson, 477 U.S. at 248), abrogated on other grounds by

Young v. Utd. Parcel Serv., 575 U.S. 206 (2015). A genuine dispute of material fact exists if the

evidence is such that a reasonable jury could return a verdict for the non-moving party. Harris v.

Klare, 902 F.3d 630, 634–35 (6th Cir. 2018). The party bringing the motion for summary judgment

has the initial burden of identifying portions of the record that demonstrate the absence of a genuine

dispute over material facts. Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir.

2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Alternatively, the moving

party may meet its initial burden by otherwise “show[ing]”—even without citing materials of

record—that the nonmovant “cannot produce admissible evidence to support a material fact (for

example, the existence of an element of a nonmovant plaintiff’s claim).” Fed. R. Civ. P.

56(c)(1)(B). If the summary judgment movant meets its initial burden, then in response the non-

moving party must set forth specific facts showing that there is a genuine issue for trial. Pittman,

901 F.3d at 628. Importantly, “[s]ummary judgment for a defendant [that has met its initial burden

as the movant] is appropriate when the plaintiff ‘fails to make a showing sufficient to establish the

existence of an element essential to [her] case, and on which [she] will bear the burden of proof at

trial.’” Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 805–06 (1999) (quoting Celotex, 477

U.S. at 322).

Any party asserting that a fact cannot be or genuinely is disputed (i.e., any party seeking

summary judgment and any party opposing summary judgment, respectively) can support the

assertion either by: (a) citing to materials in the record, including, but not limited to, depositions,

documents, affidavits, or declarations, Fed. R. Civ. P. 56(c)(1)(A), or (b) “showing” (i) that the

adverse party cannot produce admissible evidence to raise a genuine dispute as to that fact or (ii)

that contrary to the claim of the adverse party, the materials cited by the adverse party do not

actually establish the absence or presence (as the case may be) of a genuine dispute as to that fact.

In reviewing a motion for summary judgment, this Court must view the evidence in the

light most favorable to the non-moving party. Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020)

(quoting Anderson, 477 U.S. at 248). Likewise, the Court should view the facts and draw all

reasonable inferences in favor of the non-moving party. Pittman, 901 F.3d at 628. Credibility

judgments and weighing of evidence are improper. Hostettler v. College of Wooster, 895 F.3d 844,

852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact,

summary judgment is not appropriate. Id. The Court determines whether sufficient evidence has

been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla

of evidence in support of the non-moving party’s position will be insufficient to survive summary

judgment; rather, there must be evidence upon which the jury could reasonably find for the non-

moving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

On a motion for summary judgment, a party may object that the supporting materials

specified by its opponent “cannot be presented in a form that would be admissible in evidence.”

Fed. R. Civ. P. 56(c)(2). Upon such an objection, the proponent of the supporting material must

show that the material is admissible as presented or explain how it could be presented in a form

that would be admissible. Thomas v. Haslam, 303 F. Supp. 3d 585, 624 (M.D. Tenn. 2018);

Mangum v. Repp, 674 F. App’x 531, 537 (6th Cir. 2017) (citing Fed. R. Civ. P. 56(c) advisory

comm. note to 2010 amend.).

B. The McDonnell Douglas Burden-Shifting Framework

The Court will take a moment to discuss the McDonnell Douglas standard and its

applicability to motions for summary judgment in the context of employment-discrimination

claims in the federal judicial system. The Sixth Circuit has summarized the applicability and

workings of the McDonnell Douglas burden-shifting framework (in a case that happened to

involve Title VII discrimination claims) as follows:

A plaintiff may show discrimination by direct evidence, or a plaintiff

lacking direct evidence of discrimination may succeed on a Title VII claim by

presenting indirect evidence under the framework first set forth in McDonnell

Douglas Corp v. Green, [411 U.S. 792, 802–03 (1973)].

To succeed under the McDonnell Douglas framework, the plaintiff must

first make out a prima facie case of discrimination by a preponderance of the

evidence. . . . Once the plaintiff makes out a prima facie case, the burden shifts to

the defendant “to articulate some legitimate, nondiscriminatory reason for” the

adverse employment action. Should the defendant do so, the plaintiff then must

prove by a preponderance of the evidence that the stated reasons were a pretext for

discrimination.

Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019) (citations omitted).

The burden-shifting approach in McDonnell Douglas applies only to discrimination or

retaliation claims premised on so-called indirect (i.e., circumstantial) evidence.3 Redlin v. Grosse

Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019). The undersigned has explained:

When a defendant-movant challenges a plaintiff’s ability to reach a jury on

an indirect-evidence theory of employment discrimination, there are a number of

steps potentially implicated, though not all of them necessarily need be addressed

in the analysis. The number of steps to be addressed depends on whether the

defendant-movant seeks to prevail at the first step, or at the second and third step,

or at both the first step and the second and third step . . .

To prevail at the first step of McDonnell-Douglas, the defendant, as the

summary-judgment movant, must meet its initial burden of showing an absence of

evidence from which a reasonable jury could find the plaintiff established a prima

facie case. E.g., Banks v. State of Ohio, No. 94–3866, 1995 WL 118993, * 2 (6th

Cir. Mar. 20, 1995). If the defendant does so, then the burden shifts to the plaintiff

to show that at trial it could “make out a prima facie case of discrimination by a

preponderance of the evidence.” Redlin, 921 F.3d at 606. If the plaintiff fails to

succeed here, then the plaintiff suffers summary judgment in favor of the defendant

on the claim. But if the plaintiff succeeds here, defendant does not prevail at the

first step and is relegated to try instead to prevail at the second and third steps of

McDonnell-Douglas.

At the second step, the defendant-movant has the burden (of production

only) to show a legitimate and non-discriminatory reason for its action(s). Brown,

814 F. App’x at 80 (noting, on the defendant’s motion for summary judgment that

it is a “burden of production [that potentially] shifts to the defendant to show a

legitimate, nondiscriminatory reason for the way it treated the plaintiff”). If the

defendant successfully shows evidence of a non-discriminatory reason for its

alleged discriminatory act, the court proceeds to the third step, where “the plaintiff

must rebut the proffered reason by producing evidence from a which a reasonable

jury could conclude that the proffered reason is actually a pretext” for unlawful

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

(quotations omitted).

3 “Direct evidence is such that, if true, requires the conclusion that unlawful retaliation [or discrimination]

was a motivating factor without any inferences or presumptions.” Banks v. Bosch Rexroth Corp., 15 F.

Supp. 3d 681, 693 (E.D. Ky. 2014), aff’d, 610 F. App’x 519 (6th Cir. 2015) (citing Norbuta v. Loctite Corp.,

181 F.3d 102 (6th Cir. 1999)). Indirect evidence is evidence that requires the court to make inferences to

conclude that unlawful retaliation or discrimination was a motivator for an adverse employment action.

Veith v. Tyson Fresh Meat, Inc., No. 3:19-CV-01065, 2022 WL 1231229, at *9–10 (M.D. Tenn.

Apr. 26, 2022).

If the defendant carries its burden to show a legitimate nondiscriminatory reason, then

finally the burden shifts back to the plaintiff to show that the reason offered by the defendant is a

pretext for discrimination. McDonnell Douglas, 411 U.S. at 802–04; Texas Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 255–56 (1981). This resulting burden is one of persuasion, and this

burden of persuasion (as to pretext) at this stage “merges with the ultimate burden of persuading

the court that she has been the victim of intentional discrimination.” Id. at 256. In other words,

once the burden has shifted back to the plaintiff, the plaintiff must show by a preponderance of the

evidence4 each of two components of pretext: that the defendant’s reasons (i) were not its true

4 The “preponderance of the evidence” standard referred to here is the standard that would apply at trial.

(The Court is aware that it is doubtful that the McDonnell Douglas framework even applies at trial; but

whether or not the framework does apply at trial, the summary judgment standard is tied to a trial burden

as if the framework did apply at trial). At the summary judgment stage, as suggested above, the standard is

modified, such that the question becomes whether a reasonable jury could make the required finding by a

preponderance. This is because, on motion for summary judgment, the question at each stage of McDonnell

Douglas is “whether there is sufficient evidence to create a genuine dispute at each stage.” Kirilenko-Ison

v. Bd. of Educ. of Danville Indep. Sch., 974 F.3d 652, 661 (6th Cir. 2020) (quoting Cline v. Catholic Diocese

of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)). And as suggested elsewhere herein, that means the question

is whether there is sufficient evidence for a jury to find in favor of the party bearing the burden at a particular

stage, under the specific standard applicable to that stage.

So at the first stage of McDonnell Douglas, wherein the plaintiff must show an indirect-evidence prima

facie case by a preponderance of the evidence, on motion for summary judgment (assuming the defendant

is able to meet its initial burden so as to shift the burden to the plaintiff), the plaintiff need not convince the

presiding judge himself or herself by a preponderance; rather, the plaintiff must convince the presiding

judge only that a reasonable jury could be convinced by a preponderance of the evidence. (Notably, this is

the relevant question in the summary judgment analysis even though a jury actually would never be asked

whether the plaintiff established prima facie case if, as seems likely, McDonnell Douglas is inapplicable at

the trial phase). And if on motion for summary judgment the presiding judge reaches the third stage of

McDonnell Douglas—with its preponderance-of-the-evidence standard for the plaintiff to meet—the

question for the presiding judge is not whether he or she actually finds by a preponderance of the evidence

that the defendant’s stated reason is pretextual and that the real reason was discriminatory animus; instead,

the question is whether he or she concludes that the plaintiff has shown that a reasonable jury could find

that this is the case.

As for the second stage, as to which the case law says little about the required quantum of proof for the

defendant, it likely suffices to say that there must be some evidence to support a claim (even if not to the

point of showing by a preponderance) that there was a legitimate reason for the challenged adverse action.

reasons and (ii) were instead actually a pretext for discrimination. Kirilenko-Ison, 974 F.3d at 661.

To defeat a summary judgment motion in such circumstances, the plaintiff must produce sufficient

evidence from which the jury could reasonably reject the defendant’s explanation and infer that

the defendant intentionally discriminated against him. Braithwaite v. Timken Co., 258 F.3d 488,

493 (6th Cir. 2001).

An employee can show pretext “by offering evidence that (1) the employer’s stated reason

had no basis in fact, (2) the stated reason did not actually motivate the employer, or (3) the stated

reason was insufficient to warrant the adverse employment action.” Loyd v. Saint Joseph Mercy

Oakland, 766 F.3d 580, 590 (6th Cir. 2014). “Whichever method the plaintiff employs, he always

bears the burden of producing ‘sufficient evidence from which the jury could reasonably reject

[the defendant’s] explanation and infer that the defendants intentionally discriminated against

him.’” Clark v. Walgreen Co., 424 F. App’x 467, 474 (6th Cir. 2011) (quoting Johnson v. Kroger

Co., 319 F.3d 858, 866 (6th Cir. 2003)).

“The three-part test need not be applied rigidly. Rather, ‘[p]retext is a commonsense

inquiry: did the employer fire the employee for the stated reason or not?’” Blizzard v. Marion Tech.

Coll., 698 F.3d 275, 285 (6th Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4

(6th Cir. 2009)). “Ultimately the plaintiff must produce ‘sufficient evidence from which a jury

could reasonably reject [the employer’s] explanation of why it fired [or failed to rehire] her.’”

Brown v. Kelsey-Hayes Co., 814 F. App’x 72, 80 (6th Cir. 2020) (quoting Chen, 580 F.3d at 400).

The plaintiff “must meet this evidentiary burden by a preponderance of the evidence.” Id. (citation

omitted). If the plaintiff can do so, he meets his burden of showing that the employer's stated reason

for the allegedly discriminatory reason was not its true reason.

But something more is required of the plaintiff. That is, the plaintiff must address the

second component of pretext, i.e., that the actual reason was discriminatory. That is, as indicated

above, “[t]o demonstrate pretext, a plaintiff must show both that the employer’s proffered reason

was not the real reason for its action, and that the employer’s real reason was unlawful.” EEOC

v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) (citing St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 515 (1993), and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148

(2000)). In other words, if the burden has shifted back to the plaintiff, the plaintiff’s trial burden

would be to show by a preponderance of the evidence that the defendant’s reasons were not its true

reasons and were instead actually a pretext for retaliation. Kirilenko-Ison, 974 F.3d at 661. “To

avoid summary judgment, then, the [plaintiff] must present evidence from which a reasonable jury

could find that poor performance was not the real reason that [the defendant] terminated [the

plaintiff], and that unlawful retaliation in fact was.” Ford Motor Co., 782 F.3d at 767. In some

cases, the evidence that the defendant’s proffered reason was not the real reason serves equally as

evidence that the real reason was discriminatory, and vice versa. After all, evidence may suggest

that the defendant’s proffered (non-discriminatory) reason was not the real reason precisely

because it suggests that the real reason was discriminatory; likewise, evidence may suggest that

the defendant’s proffered (non-discriminatory) reason was discriminatory precisely because it

suggests that (suspiciously) the proffered reason was not the real reason. But under Sixth Circuit

law, the Court must be mindful to require evidence of both kinds, even if it turns out to all be the

same evidence.

It is worth summarizing in some detail how all of these (variously shifting and conditional)

requirements apply in the summary judgment context in particular, once the above-referenced

principles of summary judgment are applied to the unique framework of indirect-evidence cases

under McDonnell Douglas. As one court put it, addressing Title VII claims of discrimination, “[a]

defendant’s summary judgment motion slightly modifies the order of [the various McDonnell

Douglas] showings.” Sherman v. Fountain Valley Police Dep’t, No. SACV17-2217JVS(DFMX),

2019 WL 4238873, at *7 (C.D. Cal. Apr. 2, 2019) (internal quotation marks omitted).

The Sixth Circuit has stated helpfully on this topic:

[W]hen a[ ]discrimination plaintiff bases his case on indirect evidence (i.e., evidence

requiring inferences to reach the conclusion that the defendant discriminated against the

plaintiff), we apply the burden-shifting framework first set forth in McDonnell Douglas . .

. . “On a motion for summary judgment, 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) (applying the

McDonnell Douglas framework to a sex-discrimination claim). Thus, the plaintiff must

first submit evidence from which a reasonable jury could conclude that he or she

established a prima facie case of discrimination. Monette v. Elec. Data Sys. Corp., 90 F.3d

1173, 1186 (6th Cir. 1996) (applying the McDonnell Douglas framework to a disability-

discrimination claim). The defendant must then offer admissible evidence of a legitimate,

nondiscriminatory reason for its action. Id. If the defendant does so, the plaintiff must

identify evidence from which a reasonable jury could conclude that the proffered reason is

actually a pretext for unlawful discrimination. Id. Although the burdens of production shift,

“[t]he ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.” Texas Dep’t of

Cmty. Affairs [450 U.S. at 253].

Blair v. Henry Filters, Inc., 505 F.3d 517, 524 (6th Cir. 2007), overruled on other grounds, Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167, 179 (2009).

It is worth emphasizing some points about what the undersigned perceives to be an under-

analyzed topic, namely, the burdens born specifically by a defendant who moves for summary

judgment as to a claim of employment discrimination based on an indirect-evidence theory. As

indicated above, the general idea under Rule 56 and the cases interpreting it is that the summary

judgment movant bears the initial burden of showing, subject to the non-movant’s opportunity to

show to the contrary, that the non-movant cannot raise a genuine issue as to a material fact. See

Pittman, 901 F.3d at 627–28 (“The moving party must demonstrate the ‘basis for its motion, and

identify[ ] those portions of the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine

issue of material fact.’” (quoting Celotex, 477 U.S.at 323 (1986)). In the case of a defendant-

movant, the defendant-movant thus bears the initial burden of showing, subject to the plaintiff’s

opportunity for rebuttal, that the plaintiff cannot raise a genuine issue as to one or more elements

of the plaintiff’s claim(s) as to which summary judgment is sought. But because of the unique

nature of the three-step McDonnell Douglas framework and the particular burdens the parties

would bear at trial, a defendant-movant’s burdens are not so easily understood and are worth

clarifying.

As for the first step, as noted above, the Sixth Circuit has stated that “the plaintiff must first

submit evidence from which a reasonable jury could conclude that he or she established a prima

facie case of discrimination.” Blair, 505 F.3d at 524. But this is true only if the defendant-movant

met its initial burden of showing the absence of sufficient evidence for a jury to reach such a

conclusion. This is because, as the Sixth Circuit has made clear, the usual obligation of the

summary judgment movant to make the initial showing indeed applies to a defendant’s motion for

summary judgment directed at indirect-evidence theories. E.g., Banks v. Ohio, No. 94-3866, 1995

WL 118993, at * 2 (6th Cir. Mar. 20, 1995) (“The defendants met their initial burden of showing

an absence of evidence to establish a prima facie case by showing that no one was similarly

situated, or treated more favorably than she was.”); Sherman, 2019 WL 4238873, at *7 (noting

that the defendants moving for summary judgment as to claims based on an indirect-evidence

theory “have the initial burden to either (1) negate an essential element of [the plaintiff]’s prima

facie case or (2) establish a legitimate, nondiscriminatory reason for not promoting [the

plaintiff].”); Qualls v. Regents of Univ. of Cal., No. 1:13-CV-00649-LJO, 2015 WL 5604293, at

*9 (E.D. Cal. Sept. 23, 2015) (noting that “under McDonnell Douglas, Defendants have the initial

burden of demonstrating that Plaintiff cannot make a prima facie showing” of a Title VII claim),

order vacated in part on reconsideration on other grounds, No. 1:13-CV-00649-LJO-SMS, 2015

WL 6951757 (E.D. Cal. Nov. 10, 2015).5

As for the second step, it is worth emphasizing that upon a defendant’s motion for summary

judgment (just as at trial), if the burden does shift to the defendant-movant to show a legitimate

and non-discriminatory reason for its action(s), then that burden is one of mere production. Brown,

814 F. App’x at 80 (noting on the defendant’s motion for summary judgment that it is a “burden

of production [that potentially] shifts to the defendant to show a legitimate, nondiscriminatory

reason for the way it treated the plaintiff”). This means that the defendant merely has to offer

admissible evidence adequate to support a finding that the defendant-movant had such a reason

and does not have to show that no reasonable jury could fail to find that the defendant-movant had

such a reason.

As for the third step, it does not appear that the defendant-movant bears any initial burden.

That is, the defendant-movant need not make an initial showing that the plaintiff cannot raise a

genuine issue as to pretext. The rationale for this, presumably, is that the defendant—by showing

evidence of an actual (legitimate and non-discriminatory) reason—in the second step already put

the onus back on the plaintiff to raise a genuine issue that the reason was pretextual; thus, the

defendant need not specifically attack any claim of pretext in order for the plaintiff to be obligated

to present sufficient evidence of pretext. And in the context of summary judgment, sufficient

evidence means evidence sufficient for a jury to find pretext by a preponderance of the evidence.

5 On reconsideration, the defendants specifically challenged this proposition. The court, though granting

the defendants’ motion in part on other grounds, specifically declined to disavow this proposition. Qualls,

2015 WL 6951757 at *3. And the court noted what this Court is addressing herein: the “complex issues

related to the interplay of the summary judgment standard and McDonnell Douglas.” Id.

Id.; see also Blair, 505 F.3d at 532 (“[T]o survive summary judgment a plaintiff need only produce

enough evidence to . . . rebut, but not disprove, the defendant’s proffered rationale.”).

In the Court’s view, what the summary judgment analysis boils down to, stated as concisely

as possible (which, alas, is not particularly concisely), is set forth in the following paragraph.

To obtain summary judgment on employment discrimination or retaliation claims6

grounded exclusively on the so-called “indirect-evidence” theory, the defendant must either (i)

show that there is no genuine issue of material fact as to at least one of the elements of the

plaintiff’s prima facie case (such that the defendant necessarily is entitled to judgment as a matter

of law based on the absence of that element); or, failing that, (ii) (a) make an evidentiary

showing7 that there was a legitimate, nondiscriminatory reason for its alleged actions and then (b)

6 When discussing employment discrimination statutes, courts typically refer to a retaliation claim as a kind

of “discrimination” claim. E.g., Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005) (stating in

the context of Title IX claims that “[r]etaliation against a person because that person has complained of sex

discrimination is another form of intentional sex discrimination”), and thus for procedural purposes usually

is treated just like non-retaliation (i.e., general) forms of discrimination—and, when treated differently from

general discrimination, tends to be treated differently in a way that favors the plaintiff. Hubbell v. FedEx

SmartPost, Inc., 933 F.3d 558, 569 (6th Cir. 2019) (“Although we had previously held that

the same requirements [as to what amounts to an actionable adverse employment action] apply

to Title VII retaliation claims and Title VII discrimination claims, the Supreme Court made clear in

Burlington Northern that [such] requirements for a retaliation claim are in fact considerably less stringent.”

(citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59–69 (2006) (rejecting the Sixth Circuit's

contrary view))).

Nevertheless, courts often refer to retaliation claims as distinguishable from “discrimination” claims—

distinguishable, at least, from the general kind of discrimination claim that is based on the plaintiff being

in a protected class, not the plaintiff engaging in protected conduct.

7 To be clear, as indicated in the quoted language from Blair, the requirement here is not merely

to articulate a legitimate reason, but also to present evidence that the articulated legitimate was in fact at

the actual reason at the time of the adverse action at issue was taken. This has been made apparent by the

Supreme Court:

The burden that shifts to the defendant, therefore, is to rebut the presumption of

discrimination by producing evidence that the plaintiff was rejected, or someone else was

preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the

court that it was actually motivated by the proffered reasons. It is sufficient if the

defendant’s evidence raises a genuine issue of fact as to whether it discriminated against

show that there is no genuine issue of material fact as to pretext (such that the defendant necessarily

is entitled to judgment as a matter of law based on the absence of pretext). On the other hand, the

plaintiff will avoid summary judgment if : (i) either (a) the defendant fails to meet its initial burden

to show the lack of a genuine issue of material fact as to any or more elements of the plaintiff’s

indirect-evidence prima facie case, or (b) the plaintiff presents sufficient evidence to demonstrate

a genuine issue of material fact as to any element(s) of such prima facie case as to which the

defendant met its initial burden to show the lack of a genuine issue of material fact; and (ii) either

(a) the defendant cannot make an evidentiary showing of a legitimate, nondiscriminatory reason

for its alleged actions, or, if the defendant can make such a showing, (b) the plaintiff demonstrates

that there is a genuine issue of material fact as to pretext.8

DISCUSSION

For the reasons stated below, the Court concludes: (i) that Defendant has shown the absence

of a genuine issue of fact as to one element (causation) of Plaintiff’s indirect-evidence prima facie

the plaintiff. To accomplish this, the defendant must clearly set forth, through the

introduction of admissible evidence, the reasons for the plaintiff’s rejection. The

explanation provided must be legally sufficient to justify a judgment for the defendant. If

the defendant carries this burden of production, the presumption raised by the prima facie

case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this

burden of production on the defendant thus serves simultaneously to meet the plaintiff’s

prima facie case by presenting a legitimate reason for the action and to frame the factual

issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to

demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by

the extent to which it fulfills these functions.

Texas Dep’t of Cmty. Affairs, 450 U.S. 248, 254–56 (citation and footnotes omitted). The Court perceives

that a defendant-employer meets its (evidentiary) burden at step two if it presents evidence that a legitimate

reason was at least purported to be the real reason at the time the adverse action was taken. If the defendant-

employer can do that, then the burden shifts to the plaintiff to show that the purported reason in fact was

not the actual reason.

8 As indicated above, a plaintiff’s (conditional) requirement to show “pretext” is actually a (conditional)

requirement to show not just pretext (i.e., that the claimed reason was provided to conceal the real reason)

but also to show that the real reason was of an unlawful, discriminatory nature.

case of FMLA retaliation; and, alternatively, (ii) that Defendant has showed a legitimate, non-

discriminatory reason for Plaintiff’s suspension and that there is no genuine issue of material fact

as to whether that reason is pretextual. In other words, the Court will grant the Motion because

Defendant prevails at the first step of the McDonnell Douglas analysis and, in any event, would

prevail at the two remaining steps.

A. FMLA Retaliation

Defendant spearheads its Motion with a statute-of-limitations argument. (See generally.

Doc. No. 20). However, the cornerstone of that argument is Defendant’s contention that the

purported FMLA retaliation was not willful (which, if true, minimizes to Defendant’s advantage

the length of the applicable limitations period). But this contention turns in part on whether there

was retaliation at all; there could not have been willful FMLA retaliation if there was no FMLA

retaliation. Therefore, the Court will start by addressing the issue of whether the record, viewed in

light most favorable to Plaintiff, supports an indirect-evidence prima facie case of FMLA

retaliation.

To establish a prima facie case of FMLA retaliation, Plaintiff must demonstrate [that]: (1)

[he] was engaged in an activity protected by the FMLA; (2) [Defendant] knew that [he]

was exercising [his] rights under the FMLA; (3) after learning of the [Plaintiff’s] exercise

of FMLA rights, [Defendant] took an employment action adverse to [him]; and (4) there

was a causal connection between the protected FMLA activity and the adverse employment

action.

Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 616 (6th Cir. 2019) (citing Donald v. Sybra,

Inc., 667 F.3d 757, 761 (6th Cir. 2012)).

Here, there is no dispute that Plaintiff engaged in activity protected under the FMLA when

he took his paternity leave. (See Doc. No. 20 at 10–11). There is also no dispute that Defendant

disciplined Plaintiff and that such discipline was an adverse employment action. (See id. at 10).

Defendant, however, disputes that the Chief Resident—the person who referred Plaintiff to the

disciplinary committee—or the members of said committee, were aware of the paternity leave.9

(See id. at 11–12). Defendant also disputes that there was a causal connection between Plaintiff’s

FMLA leave and the adverse employment action, i.e., the discipline.10 (See id. at 12–13). In other

words, Defendant challenges the second and fourth elements of Plaintiff’s indirect-evidence prima

facie case of employment discrimination.

1. Defendant’s Knowledge of Plaintiff’s Protected Activity

As to the second element, the relevant question on the instant Motion is whether the

evidence is “sufficient to establish that the individuals charged with taking the adverse

employment action knew of the protected activity.” Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th

Cir. 2002) (finding summary judgment appropriate where the plaintiff failed to produce direct or

circumstantial evidence that the decision makers knew of the protected activity); Frazier v. USF

Holland, Inc., 250 F. App’x 142, 148 (6th Cir. 2007) (same).

Defendant argues that the Chief Resident was unaware of Plaintiff’s paternity leave

because she became responsible for scheduling only in July of 2018, after Plaintiff’s leave had

9 The discipline at issue here is the two-week suspension of Plaintiff and the related permanent notation of

the suspension in Plaintiff’s “folder,” resulting in the disclosure of the suspension in response to “any

inquiries concerning [Plaintiff’s] training.” (Doc. No. 28 ¶ 16). This discipline was imposed by the

disciplinary committee (and subsequently confirmed by the appellate committee), but the record does not

appear to contain the names of the persons that sat on the disciplinary committee. (See id.).

10 In addition to the discipline itself, Plaintiff contends that Defendant continues to refuse to expunge the

suspension from his disciplinary record. (See Doc. No. 1 ¶¶ 21, 23; Doc. No. 27 at 3, 7–8 (citing Doc. No.

29-1 at 22–23)). Plaintiff characterizes the refusal to expunge the suspension is an adverse action in the

introduction to his Opposition. (See Doc. No. 27 at 3). However, Plaintiff later refers to the refusal to

expunge only as part of his argument on willfulness. Without more, the Court declines to construe the

refusal to expunge as a separate adverse employment action because the permanent notation of the

suspension is part of the discipline Defendant initially imposed upon Plaintiff. In any event, even if the

Court were to consider any subsequent refusal to expunge the suspension as a distinct adverse action, the

Court’s reasoning would remain the same because any refusal to expunge would be even more remote in

time from Plaintiff’s FMLA leave than the initial discipline. (See infra Section 2).

ended. (See Doc. No. 20 at 11 (citing Doc. No. 22-2 at 56)). Plaintiff counters that incoming chief

residents start taking responsibility three to four months before their official start date. (See Doc.

No. 27 at 11 (citing doc. No. 29-19 ¶ 1)). Moreover, Plaintiff counters that the information about

his leave “was out there” and within the knowledge of the other 14 members of Plaintiff’s “small”

class of residents, and that other managing members with whom the Chief Resident was in contact,

including the Chair, were aware of the leave. (See id. (citing doc. No. 29-19 ¶¶ 2, and Doc. No.

29-2 at 19)).

The Court finds that the record, viewed in the light most favorable to Plaintiff, raises a

genuine dispute of material fact on whether the disciplinary committee was aware of Plaintiff’s

leave at the time it imposed the discipline. Indeed, the Chief Resident had access to schedules and

was in contact with a small group of people with knowledge of Plaintiff’s leave. A jury could

reasonably infer that the Chief Resident had knowledge and that the disciplinary committee (or its

individual members) interacted with the Chief Resident before rendering its decision, meaning that

a jury could also reasonably infer that the disciplinary committee (or its individual members) had

knowledge. See Mulhall, 287 F.3d 553 (circumstantial evidence is sufficient to support knowledge

at the summary judgment stage; further discussing a case standing for the proposition that

“knowledge of a plaintiff’s protected activity can be inferred from evidence of the prior interaction

of individuals with such knowledge and those taking the adverse employment action”) (citing

Kralowec v. Prince George’s Cnty., Md., 503 F. Supp. 985 (D. Md. 1980), aff’d, 679 F.2d 883 (4th

Cir. 1982), cert. denied, 459 U.S. 872 (1982)). The Court therefore will not grant summary

judgment based on the knowledge-of-protected-conduct element.

2. Causal Link Between the Protected Activity and the Suspension

The fourth element of an indirect-evidence prima facie case of retaliation, causation, is

where the rubber meets the road in this case. The Court will first examine whether the record,

viewed in light most favorable to Plaintiff, could support a finding that Defendant issued the

discipline because of Plaintiff’s paternity leave. If so, the Court will look at whether the Defendant

has shown a non-discriminatory reason for the discipline and, if so, whether there is a genuine

issue of material fact as to pretext.

As to the first question, Plaintiff relies on the temporal proximity between his paternity

leave (his protected activity) and the suspension (the adverse employment action). (See Doc. No.

27 at 13–14).11 The Sixth Circuit has noted that “where the temporal proximity between the

protected activity and the adverse employment action is acutely near in time, that close proximity

is deemed indirect evidence such as to permit an inference of retaliation to arise.”12 DiCarlo v.

Potter, 358 F.3d 408, 421 (6th Cir. 2004) (collecting cases), overruled on other grounds, Gross

v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).13 Defendant counters that Plaintiff’s leave and

11 It is clear that “the causality determination [implicated by the fourth element] should . . . . be informed

by what we have always advised: namely, by reference to the temporal proximity between ‘the plaintiff's

exercise of protected rights’ and the subsequent adverse action. Wallner v. Hilliard, 590 F. App’x 546, 554

(6th Cir. 2014) (quoting Nguyen, 229 F.3d at 563).

12 In context, it is clear that DiCarlo was referring here specifically to an inference of the existence of the

fourth (causal connection) element of an indirect-evidence prima facie case of retaliation.

13 Sixth Circuit precedent is contradictory on whether additional evidence, i.e., other than temporal

proximity, is required. Compare Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000) (“there

may be circumstances where evidence of temporal proximity alone would be sufficient to support [an]

inference” of the required causal relationship), with Parkhurst v. Am. Healthways Servs., LLC, 700 F. App’x

445, 451 (6th Cir. 2017) (temporal proximity, alone, is not sufficient evidence of discrimination); Parnell

v. West, 1997 WL 271751, at *2 (6th Cir. 1997) (“[T]emporal proximity alone will not support an inference

of [the existence of the fourth element of an indirect-evidence prima facie case of] retaliatory discrimination

when there is no other compelling evidence”) (citing Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272

(6th Cir. 1986)). The Court needs not resolve this contradiction here because (i) it concludes below that

there is insufficient temporal proximity in this case, and (ii) Plaintiff relies on the line of cases that requires

the suspension are too distant in time for his inference to apply. (See Doc. No. 20 at 12–13).

Defendant and Plaintiff cite cases in which courts considered various periods of time to be,

respectively, too long or short enough. (See id. (collecting cases); Doc. No. 27 at 13–14 (same)).

In addition to reading the cases cited by the parties, the Court has conducted its own

research on this issue. Overall, it appears that in this Circuit, courts have found periods of two to

three months to be sufficiently close to support an inference of retaliation, but generally have found

to the contrary for periods when the period in question was longer than four months. See Judge v.

Landscape Forms, Inc., 592 F. App’x 403, 409 (6th Cir. 2014) (“We have found sufficient

evidence of a causal connection where the time between when the employee’s leave expired or the

employee requested leave and the employee’s termination was two to three months.” (collecting

cases)); Flagg v. Staples the Off. Superstore E., Inc., 138 F. Supp. 3d 908, 918 (N.D. Ohio 2015)

(noting that “for more than three months beyond the expiration of leave, the Sixth Circuit has held

no inference of a causal connection may be drawn” (collecting cases); further opining that “[i]n

light of the above Sixth Circuit holdings, temporal proximity of five months is insufficient to

establish a causal connection in and of itself.”); Parnell, 1997 WL 271751 at *3 (noting that

“previous cases that have permitted a prima facie case to be made based on the proximity of time

have all been short periods of time, usually less than six months”) (unpublished); e.g. Leavy v.

FedEx Corp., No. 19-CV-2705-JTF-TMP, 2021 WL 4171454, at *9 (W.D. Tenn. Feb. 18, 2021)

(period of four months, without more, was too long to establish retaliation), report and

additional evidence in its argument on the third step of the McDonnell Douglas analysis. (See Doc. No. 27

at 17 (noting that temporal proximity cannot be the sole basis for finding pretext under Sixth Circuit law)).

In any event, here the record contains (purported) indirect evidence in addition to the (purported) temporal

proximity. This (purported) indirect evidence is to the effect that another resident who took leave was

suspended, that a resident who missed work during his last week of residency was not suspended, and that

there were other complaints against Defendant; it also includes the Group Message. This (purported)

indirect evidence could hypothetically be sufficient to support the finding of a causal link if coupled with

sufficiently close temporal proximity.

recommendation adopted, (W.D. Tenn. Aug. 23, 2021), aff’d, No. 21-5882, 2022 WL 19039658

(6th Cir. Dec. 20, 2022); Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 308 (6th Cir. 2016)

(period of seven months was too long); Wallner, 590 F. App’x at 554 (reversing district court’s

finding that the time period was too long to support a causal connection, because the relevant time

period was actually nine days rather than four months as the district court erroneously found);

Cooper, 795 F.2d at 1273 (four months were too long to establish an inference of retaliation);

Sesson v. United Parcel Serv., Inc., No. 22-5564, 2023 WL 4864283, at *4 (6th Cir. July 31, 2023)

(one year and three months was too long); Nolen v. FedEx Servs., No. 13-6245, 2014 WL

12887530, at *3 (6th Cir. May 28, 2014) (nine months were “simply too long of a time period for

temporal proximity alone to support an inference of retaliation”); Clark v. Walgreen Co., 424 F.

App’x 467, 473 (6th Cir. 2011) (three months were not too long); Imwalle v. Reliance Med. Prods.,

Inc., 515 F.3d 531, 550 (6th Cir. 2008) (“less than three months” was a period short enough to

support the inference); Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007) (period of three

months was not too long); O’Gwynn v. Rutherford Cnty., Tenn., No. 3:17-CV-00503, 2018 WL

5830834, at *3 (M.D. Tenn. Nov. 6, 2018) (five months were too long); Brown v. ASD Computing

Ctr., 519 F. Supp. 1096, 1116 (S.D. Ohio 1981) (three months were not too long), aff’d sub nom.

Brown v. Mark, 709 F.2d 1499 (6th Cir. 1983).

In short, the Court has no doubt that, absent any other evidence to support an inference of

a causal connection, a lapse of over four months is insufficient to satisfy the fourth element of an

indirect-evidence prima facie case of retaliation. Here, even taking as reference points the end of

Plaintiff’s paternity leave and the written reprimand that that ultimately led to the suspension, the

relevant period time is well over four months (i.e., from June 11, 2018, to October 22, 2018).

Accordingly, the Court finds that the temporal proximity in this case does not warrant an inference

of a causal connection between Plaintiff’s protected conduct and the adverse employment action

he experienced. In addition, without sufficiently close temporal proximity, the additional evidence

mentioned by Plaintiff (see supra n.13) is simply too weak to establish such causal link. Therefore,

the Court finds that Plaintiff’s FMLA claim fails at the first step of the McDonnell Douglas

analysis.

3. Legitimate Non-Retaliatory Reason and Pretext

In any event, Plaintiff’s claim alternatively would fail at the third step of the McDonnell

Douglas analysis.

Defendant would prevail at the second step, thus putting the burden upon Plaintiff to prevail

at the third step, inasmuch as it has articulated a legitimate, non-retaliatory reason for the

discipline. The reason, according to Defendant, is Plaintiff’s unexcused absence from work on

October 5, 2018 (long post-dating the period of Plaintiff’s FMLA leave), Plaintiff’s failure to

answer the Chief Resident’s emails (one from Friday and one from Monday morning) until the

following Monday afternoon, and the tone of Plaintiff’s answer to those emails. (See Doc. No. 20

at 13–14). The record supports Defendant’s argument. Specifically, the Chief Resident’s written

reprimand unambiguously sets forth these reasons. (See generally Doc. No. 29-7). And so does the

letter of suspension. (See generally Doc. No. 29-8). In the same vein, the unanimous appellate

committee’s determination states “a breach in the leave policy” as the basis for its upholding of

the discipline and recommends a “mandatory professionalism course.” (Doc. No. 22-1 at 131).

None of these documents refer to Plaintiff’s FMLA leave. Instead, they all state a reason for the

adverse employment action that is non-retaliatory and legitimate, thus satisfying Defendant’s

burden at the second step.

Plaintiff contends that Defendant failed to articulate a legitimate, non-retaliatory reason for

the discipline, arguing that there was no formal requirement for him to inform the Chief Resident

of his leave and answer her emails over the weekend.14 (See Doc. No. 27 at 14–15). But this

argument entirely ignores the tone of his answer and, possibly, common sense in a professional

and/or clinical setting. Similarly, Plaintiff contends that the disciplinary committee did not conduct

its own investigation into the allegations and that Defendant refused to expunge the discipline from

Plaintiff’s record after Plaintiff “completed . . . what was required of him[.]” (Id. at 16). But

nothing indicates that an investigation was necessary, inasmuch as the emails speak for

themselves; nor does the Court see why the permanent character of the notation in Plaintiff’s

disciplinary record would have been improper in the first place. (See Doc. No. 22-1 at 125–26

(letter of suspension stating that the notation would be permanent)).15

14 Plaintiff frames this argument as pertaining to step two of the McDonnell Douglas analysis. (See Doc.

No. 27 at 14–15). However, it actually goes to step three of said analysis. In any event, this argument,

whether understood as pertaining to step two or step three, is to no avail.

15 As part of the arguments regarding willfulness and the statute of limitations, Plaintiff contends that the

Chair told him that he would expunge the suspension from his record if he completed a rotation in a specific

clinic, which Plaintiff did, but that the Chair “explained [in his deposition that Defendant] would not

expunge the suspension because of the lawsuit filed by [Plaintiff] and [the Chair’s] belief that [Plaintiff] is

actively trying to ‘hurt’ [Defendant].” (Id. at 7–8 (citing Doc. No. 29-1 at 22–23)). The deposition transcript

Plaintiff cites in support of this contention is somewhat more nuanced. The Chair stated that he did not

expunge the suspension from Plaintiff’s record because (i) it would “remove the idea that it ever actually

happened . . . and we know that it did,” and (ii) the Chair did not recall having a meeting about expunging

the suspension and did not know whether a reconsideration was possible. (Doc. 29-1 at 45–56). In response,

Plaintiff’s counsel questioned the Chair about his willingness to expunge the suspension at the time of the

deposition, to which the Chair answered it “would be problematic” because Plaintiff is “suing us regarding

this.” (Id. at 23). When questioned about his authority to expunge the suspension, the Chair answered that

he would have to “clear it” with Defendant’s legal department. (Id.).

It is true that a refusal to expunge the suspension on the basis that Plaintiff filed this lawsuit could

conceivably amount to retaliation. See Hawkins v. Ctr. for Spinal Surgery, 34 F. Supp. 3d 822, 845 (M.D.

Tenn. 2014) (denying summary judgment on claim that the defendant retaliated against the plaintiff for

filing a FMLA lawsuit); Sosby v. Miller Brewing Co., 415 F. Supp. 2d 809, 822 (S.D. Ohio 2005)

(considering a similar argument but granting summary judgment in favor of the defendant where adding

such claim would have been futile), aff’d, 211 F. App’x 382 (6th Cir. 2006). However, it is not at all clear

that the Chair’s testimony indicates that this is what occurred; instead, it may indicate only that the Chair

As for the third step, in support of his argument that Defendant’s stated reasons for the

discipline were pretextual, Plaintiff points to (i) the Group Message,16 (ii) other complaints filed

by residents who believe that Defendant has infringed upon their FMLA rights, and (iii) the fact

that another resident who had taken FMLA leave also faced suspension (although the suspension

was not executed for reasons not relevant here). (See Doc. No. 27 at 17–19 (citing Doc. No. 29-2

at 34–35,17 and Doc. No. 29-12 at 8–9)). Plaintiff also contends that other residents who missed

work were not suspended. (See id. at 19 (citing Doc. No. 29-1 at 11–13,18 and Doc. No. 22-1 at

40, 47–50)).

Here, the record does not support a finding of pretext by a reasonable jury by

preponderance of the evidence. Specifically, Plaintiff cannot establish that Defendant’s stated

viewed any potential expungement of a record of Plaintiff’s suspension as a potential alteration of records

regarding a matter in litigation, which is certainly something that can be improper.

Ultimately, the Court will not address this issue because Plaintiff’s Complaint in this case is not premised

upon the Chair’s refusal to expunge the suspension at the time of the deposition (see generally Doc. No.

1)—i.e., Plaintiff does not allege that such refusal constituted an adverse employment action—and Plaintiff

did not request to amend the Complaint and perhaps would have had this request properly denied anyway.

See Sosby, 415 F. Supp. 2d at 822 (expressing doubts on whether the plaintiff could add a similar claim at

the summary judgment stage)).

16 The Court notes that the Group Message, at best, indicates that Defendant would have taken measures if

it uncovered a “pattern” of sick and/or FMLA leave. Here, the record only indicates one such leave by

Plaintiff, i.e., his paternity leave, inasmuch as Plaintiff claims that his absence on October 5, 2018, was for

either an interview or a networking conference, or both (Plaintiff’s filings are contradictory on this point.

(Compare Doc. No. 1 ¶ 15 (“[Plaintiff] had an interview for a fellowship position on October 5, 2018.”),

with Doc. No. 27 at 2 (“[Plaintiff] took 1 day off – October 5, 2018, to attend a networking conference in

Texas”)). Furthermore, the record contains no indication that the Group Message concerned Plaintiff or that

Defendant actually took any action against a resident for taking sick and/or FMLA leave on multiple

occasions.

17 This citation is to a deposition transcript, in which the Chair states that Defendant investigated another

resident for being absent from work, and that a suspension was recommended but not carried out because

“deliberations were compromised,” possibly because a member of the disciplinary committee was not

impartial and/or because the Resident reported sexual assault.

18 This citation is to a page of the deposition transcript, wherein the Chair states that a resident was

disciplined for falsely calling in sick during his last week of residency but did not receive a suspension. The

Court notes that it is unclear whether Defendant could have acted fast enough to actually suspend this

resident, given that the conduct occurred during the resident’s last week of work.

reasons for the suspension had no basis in fact, inasmuch the emails—and/or the lack thereof—

between Plaintiff and the Chief Resident are part of the record. As for Defendant’s actual

motivation, Plaintiff points to unrelated suspensions—or the lack thereof, a Group Message sent

approximately four months prior, as well as unrelated, purported FMLA violations by Defendant.

But none of this changes that Plaintiff missed work on a Friday, did not answer emails until the

next Monday afternoon, and then finally answered the Chief Resident’s email with what

reasonably was taken to be a defiant tone. The record contains no tangible indication that anything

other than these events led to the decision to suspend Plaintiff. Cf. Stage v. PPG Indus., Inc., No.

1:10-CV-5, 2011 WL 2532219, at *6 (E.D. Tenn. June 24, 2011) (finding that there was “not a

scintilla of proof” that the plaintiff’s termination was connected to her FMLA leave where “the

only reference . . . to [the plaintiff’s] work attendance [was] an unapproved vacation day she took”

and not the plaintiff’s taking of FMLA leave). Timing also supports Defendant’s stated reason for

the discipline, inasmuch as the Chief Resident issued the reprimand and related referral for

discipline only two weeks after Plaintiff’s response to her emails and, as discussed above, over

four months after Plaintiff returned from his paternity leave. Thus, information in the record,

including regarding the timing of the suspension, shows that the written reprimand and subsequent

discipline were a direct result of Plaintiff’s absence from work without written approval on

October 5, 2018, failure to answer related emails, and use of a defiant tone when he finally

answered those emails. Finally, the court sees no reason why the discipline would have been

unjustified under these circumstances. Plaintiff’s attempts to raise a genuine dispute as to pretext

rely on pure conjecture and thus are to no avail. The Court therefore finds that Plaintiff would fail

to meet his burden at the third step of the McDonnell Douglas analysis had Plaintiff, contrary to

the Court’s decision above, even gotten past step one. See Leavy, 2021 WL 3722339 at *7 (granting

summary judgment where the Plaintiff failed to raise a genuine dispute as to pretext) (citing

Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 724 (6th Cir. 2006) (“It is well settled

that [m]ere personal beliefs, conjecture and speculation are insufficient to support an inference of

[ ] discrimination.” (quotation marks omitted))); Gerlach v. Siemens Corp., No. 5:20-CV-297-

CHB, 2021 WL 5412108, at *5 (E.D. Ky. Nov. 18, 2021).

B. Statute of Limitations

Because the Court finds that Plaintiff claim fails to survive a McDonnell Douglas analysis,

as it must (given the lack of direct evidence) in order for it to proceed to trial, the Court need not

examine the parties’ arguments regarding the statute of limitations.

CONCLUSION

For the reasons discussed herein, Defendant’s Motion (Doc. No. 19) will be granted. An

appropriate accompanying order will be entered.

CLE Richardson

Chi Ruch

UNITED STATES DISTRICT JUDGE