The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SARAH FOREMAN,
Plaintiff,
Case No. 1:24-cv-54
v.
JUDGE DOUGLAS R. COLE
RIVER CITY MORTGAGE, LLC,
Defendant.
OPINION AND ORDER
Plaintiff Sarah Foreman worked for Defendant River City Mortgage, LLC as a
senior loan processor. During her tenure, she was diagnosed with Irritable Bowel
Syndrome (IBS) and had to intermittently take leave under the Family and Medical
Leave Act (FMLA) as a result. At one point, River City placed Foreman on a
performance improvement plan, and then it later terminated her. Foreman says that
was because River City didn’t like that she was taking FMLA leave. River City says
it was due to Foreman’s poor job performance. Foreman sued, and River City now
moves for summary judgment. For the reasons discussed below, the Court GRANTS
River City’s Motion for Summary Judgment (Doc. 15).
BACKGROUND1
Foreman’s relationship with River City began in March 2020 when it hired her
as a Senior Mortgage Loan Processor. (Pl.’s Resp. to Proposed Undisputed Facts, Doc.
1 Pursuant to the Court’s Civil Standing Order (I)(F)(2)(a)–(c), River City filed a list of
Proposed Undisputed Facts (Doc. 15-1) with its motions. Foreman admitted to many of those
20-1, #358). As a senior loan processor, Foreman ushered loans along to closing.
Among other things, she reviewed documents for loan processing, cleared loan
conditions, and communicated with various individuals to close a given loan. (Id. at
#358–59). Ultimately, though, Foreman’s tenure included a series of ups and downs.
The first bump came in January 2021. About a year into Foreman’s time at
River City, she had something of a scuffle with the company’s President. (Doc. 13-10,
#184–86). After the President re-assigned to himself a loan that Foreman had been
handling (perhaps due to Foreman’s inadequate performance or perhaps due to a
mere misunderstanding), Foreman fired off an email to the President that he did not
appreciate. (See id.). As a result, River City issued Foreman a notice, stating that
she’d committed two infractions—one that was communication-based and another
that was performance-based. (Doc. 13-9, #183). And it warned that if she did not
“demonstrate improvement,” she risked being terminated. (Id.).
But things seem to have smoothed out after that—a least for a little while. A
couple of years later, in January 2023, River City moved Foreman to the Purchase
Processor Team. (Foreman Depo., Doc. 13, #52, 58, 72). While part of that team,
Foreman remained a senior loan processor, but she dealt primarily with purchase
mortgage loans instead of refinances. (Id. at #57–58, 76). That placement didn’t last
all that long, though. In June 2023, Foreman hit another snag—River City removed
Foreman from the Purchase Processor Team and also put her on a performance
proposed facts. (Doc. 20-1). Unless otherwise noted, the Court cites those documents only for
admitted facts.
improvement plan (PIP). (Doc. 20-1, #358, 360). Why River City did so forms the heart
of this dispute.
Before turning to the parties’ competing accounts, though, some background
on Foreman’s medical condition is in order. Foreman suffers from IBS, which flares
up from time to time. (Id. at #363). So in January 2023, after River City discontinued
remote employee work, Foreman applied for leave under the FMLA due to her IBS.2
(Id. at #363–64; Doc. 14-10, #248–49). She said she needed the ability to work from
home in case any IBS-related flare-ups arose. (Doc. 14-10, #248). River City approved
her FMLA application. (See Doc. 13-5, #177). And it agreed to allow Foreman to work
a split schedule—that is, she could work from home the first part of the workday, but
had to be in-office the latter part. (Id.).
That arrangement lasted about five months until River City put Foreman on
the above-mentioned June 2023 PIP, which was to last thirty-days. (Doc. 13-6, #179).
The PIP required Foreman to “[k]eep [her] work commitments by consistently
showing up in office at 9 AM.” (Id.). And it mandated that she both “[c]oncentrate on”
completing tasks accurately and correspond with management for help in completing
loan files. (Id.). The reason behind the PIP, however, is where the parties’ narratives
diverge. Take each in turn.
2 The physician note supporting Foreman’s FMLA leave application also noted that she
suffers from Bipolar Disorder. (Doc. 13-3, #153). And while Foreman’s initial Complaint
referenced Bipolar Disorder as a basis for her claims, (Doc. 1, #2), her Amended Complaint
makes no mention of it. Nor does her opposition brief to River City’s motion. That means
Foreman has forfeited any arguments based on her Bipolar Disorder. See Cockrun v. Berrien
Cnty., 101 F.4th 416, 419 (6th Cir. 2024) (“[A]n issue is deemed forfeited if it is merely
mentioned and not developed.” (cleaned up)).
Start with River City’s version of events. It says the PIP was meant to
ameliorate the performance-related deficiencies Foreman had been exhibiting in her
work. For example, Foreman had apparently been cutting and pasting lengthy emails
into the company’s document management system, which hampered other team
members’ ability to quickly read and assess a loan’s status. (Hoy Decl., Doc. 14-8,
#238; see also Doc. 14-14, #257–58 (providing examples)). River City maintains that
it discussed that issue with Foreman in early June before it placed her on the PIP,
but to no avail. (See Doc. 13, #88; Doc. 14-8, #237). More than the copy-and-paste
issue, though, Foreman also supposedly failed to handle several loan files thoroughly
and accurately. (Doc. 14-8, #238; see also Doc. 14-13, #255). So to help Foreman
“improve” on those shortcomings and “assist the company in closing customers’ loans
without issues and delays,” River City initiated the PIP. (Doc. 14-8, #238). Foreman’s
manager, Brandi Canann, was tasked with monitoring Foreman’s weekly progress.
(Doc. 13-6, #179). And notably, the PIP said that even if Foreman successfully
completed it, any subsequent decrease in performance could “result in dismissal from
River City Mortgage without the issuance of another warning or improvement plan.”
(Id.).
Before implementing the PIP (in late June) and just after implementing the
PIP (in early July), Canann and a few individuals from management met with
Foreman to discuss the plan’s parameters. (Doc. 13, #82–83). At the first meeting,
Foreman remembers objecting to the 9:00 a.m. reporting requirement given her split
schedule (though she doesn’t recall exactly how the conversation went). (Id. at #80).
And she also requested examples of loans that she had inadequately handled, which
Canann didn’t provide until their second meeting. (Id. at #81–82). Even then,
Foreman claims that Canann simply handed over a bullet-point list of four loans
Foreman supposedly fell short in managing—there was no “substantive discussion”
surrounding her alleged performance deficiencies. (Id. at #86–87).
In any event, Foreman successfully completed the PIP in July 2023. (Id. at
#98–99; Doc. 14-8, #238). River City says Foreman performed satisfactorily for about
a month after that, but that by September 2023, she had returned to her old habits.
(Doc. 14-8, #238–39). It reports no less than nine instances, between September 2023
and January 2024, of Foreman either copying and pasting large emails into the
company’s loan repository, or inaccurately completing tasks related to loan closings.
(Id. at #239–40; see also Doc. 14-14, #257–59). As one example, River City provides a
screenshot of a Microsoft Teams message chain in which one co-worker requested
that another co-worker take over a loan file Foreman had been handling because
Foreman “missed [a] condition” in the relevant documentation and hadn’t been
“focus[ing] on the right details.” (Doc. 14-14, #259). River City reached the end of its
rope in January 2024 when Foreman supposedly failed to clear various loan
conditions for a loan set to close the next day. (Doc. 14-8, #240). Her mistakes
apparently delayed the closing for almost a month—what River City calls an
“unacceptable” outcome for a Senior Mortgage Loan Processor. (Id.).
Foreman tells the story a little differently. She says that when she learned of
the PIP in the summer of 2023, she “was completely caught off guard.” (Doc. 13, #79).
In her view, she had been “d[oing] [her] job well.” (Id. at #76). Not only was Foreman
topping the list for loan closings among her team, but River City had only recently
asked her to join the Purchase Processor Team, a request that indicated she was
excelling. (Id. at #76–77). Plus, several of her then-colleagues had nominated her for
“Spotlight Nominations,” describing Foreman as “helpful,” “knowledgeable,” and
“clear with communication.” (Foreman Decl., Doc. 20-2, #368–69). And when it comes
to the loan that River City now claims ultimately led to her termination, Foreman
does not remember failing to include any necessary conditions. (Id. at #371).
So it’s her belief that River City put her on a PIP and later terminated her
because it no longer “want[ed] to accommodate [her] FMLA” leave. (Doc. 13, #116–
17). And she points to the PIP’s inclusion of the 9:00 a.m. reporting requirement as
evidence. (Id. at #117). Though Foreman admits that, notwithstanding that
“requirement,” during and after the PIP, River City always permitted her to take
FMLA leave and come into the office after 9:00 a.m. when her IBS required. (Id. at
#68–69, 89–92, 99–101, 103).
Whatever ultimately led to the decision, all agree that River City terminated
Foreman on January 17, 2024. (Doc. 20-1, #363). And that prompted Foreman to file
this lawsuit, in which she asserts three counts: FMLA interference (Count I), FMLA
retaliation (Count II), and disability discrimination under the ADA (Count III). (Am.
Compl., Doc. 8, #27–29).
River City now moves for summary judgment on all three claims. (Doc. 15). In
its view, Foreman failed to make a prima facie case on each of them. (Id. at #273–82).
And even if she had, River City says it had a legitimate, nondiscriminatory reason to
take the action it did, and that Foreman can’t prove that its reasons for imposing the
PIP or later terminating Foreman were pretextual. (Doc. 22, #386–87, 389–90).
Foreman responded, (Doc. 20), and River City replied, (Doc. 22), which means
the motion is ripe for review.
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show
no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). Once the
movant meets its burden, though, the nonmoving party may not rest on its pleadings,
but rather must come forward with significant probative evidence to support its
claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at 1347. Whether summary
judgment is appropriate depends on “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Amway Distribs. Benefits Ass’n v. Northfield
Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–52 (1986)).
This Court does not have the responsibility to sua sponte search the record for
evidence creating a genuine issue of material fact. Betkerur v. Aultman Hosp. Ass’n,
78 F.3d 1079, 1087 (6th Cir. 1996); Guarino v. Brookfield Twp. Trs., 980 F.2d 399,
404–06 (6th Cir. 1992). That burden instead falls upon the nonmoving party to “set
forth specific facts” or evidence in dispute. Anderson, 477 U.S. at 250 (quotation
omitted). If the nonmoving party fails to make the necessary showing for an element
upon which it bears the burden of proof, the moving party is entitled to summary
judgment. Celotex, 477 U.S. at 323.
In sum, in light of all the facts as to which River City shows a lack of dispute,
Foreman must in turn present some remaining “sufficient disagreement” which
would require submission to a jury. See Moore v. Phillip Morris Cos., 8 F.3d 335, 340
(6th Cir. 1993) (quoting Anderson, 477 U.S. at 251). In making that determination,
this Court must view the evidence in the light most favorable to the nonmoving
party—Foreman. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587–88 (1986); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
LAW AND ANALYSIS
Foreman asserts three claims: FMLA interference, FMLA retaliation, and
disability discrimination under the ADA. River City says they all fail as a matter of
law. Foreman, unsurprisingly, disagrees. So the Court takes each claim in turn.
Ultimately, though, the Court agrees with River City—none of them survive
summary judgment.
A. Foreman’s FMLA Interference Claim Fails Because She Failed to
Identify Any Prejudice She Suffered From River City’s Alleged
Interference.
Start with Foreman’s FMLA interference claim. By way of background, the
FMLA entitles eligible employees to twelve weeks’ leave each year for, among other
things, “a serious health condition that makes the employee unable to perform the
functions” of her position. 29 U.S.C. § 2612(a)(1)(D). And employers may not
“interfere with, restrain, or deny the exercise of” that right. Id. § 2615(a)(1). Foreman
complains that River City did just that when it required her, via the PIP, to report to
the office by 9:00 a.m. each day. (Doc. 20, #345).
In analyzing Foreman’s claim, the Court employs the McDonnell Douglas
burden-shifting framework, which proceeds in three steps. Mullendore v. City of
Belding, 872 F.3d 322, 327 (6th Cir. 2017). First, Foreman must establish a prima
facie case showing, by a preponderance of the evidence,
that (1) she was an eligible employee as defined under the FMLA; (2) her
employer was a covered employer as defined under the FMLA; (3) she
was entitled to leave under the FMLA; (4) she gave the employer notice
of her intention to take FMLA leave; and (5) her employer denied FMLA
benefits to which she was entitled.
Id. (quotation omitted). If she does so, then River City “may offer a legitimate reason
unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Id.
(quotation omitted). This burden is merely one of production, not persuasion. Upshaw
v. Ford Motor Co., 576 F.3d 576, 585 (6th Cir. 2009). Then, if River City meets its
burden, Foreman must show, once again by a preponderance of the evidence, that the
provided reason was pretext. Demyanovich v. Cadon Plating & Coatings, L.L.C., 747
F.3d 419, 427 (6th Cir. 2014).
One other thing before turning to case-specific analysis. As the Court has
previously explained, the preponderance of the evidence standard is ill-fitted for
summary judgment. Abernathy v. TriHealth G LLC, No. 1:22-cv-624, 2025 WL
689333, at *10–11 (S.D. Ohio Mar. 4, 2025); Burress v. Spring Grove Cemetery &
Arboretum, No. 1:18-cv-879, 2020 WL 3036047, at *8–9 (S.D. Ohio June 5, 2020). It
typically involves “weighing competing evidence and undertaking credibility
assessments”—activities courts generally do not undertake at summary judgment.
Abernathy, 2025 WL 689333, at *10. That said, it seems the preponderance standard
is what the Supreme Court and courts down the line have used to frame the
McDonnell Douglas inquiry. Id. at *10–11. So the Court will dutifully employ it here,
but with the understanding that “preponderance of the evidence” merely means the
plaintiff must create at least a genuine dispute of material fact as to each element of
the required showing at a given stage. Id.
With that out of the way, consider the dispute at hand. River City says
Foreman stumbles at step one (her prima facie case) because she admitted that River
City never denied her the FMLA benefits to which she was entitled. (Doc. 15, #274).
It points to her deposition where Foreman conceded that, even while on the PIP, River
City never rejected or denied her use of FMLA leave. (Id. (citing Doc. 13, #68–69, 89–
90, 99–100, 103)). And given that concession, River City argues, Foreman’s FMLA
interference claim fails. Foreman, however, sees things differently. She argues that
whether River City ultimately permitted her to take requested leave or not, the mere
inclusion of a 9:00 a.m. reporting requirement in her PIP constitutes FMLA
interference because it undermined the free exercise of her FMLA rights, or in other
words, chilled her use of protected leave. (Doc. 20, #345). In the end, River City has
the better argument.
As a starting point, all agree that River City never flat-out denied Foreman’s
requests to use FMLA-protected leave. Foreman repeatedly admitted as much in her
deposition. (See, e.g., Doc. 13, #101). So the question, then, is whether the 9:00 a.m.
reporting requirement itself, even if not enforced, impermissibly “discourag[ed] or
chill[ed]” Foreman from exercising her FMLA-protected leave. Harcourt v. Cincinnati
Bell Tel. Co., 383 F. Supp. 2d 944, 962 (S.D. Ohio 2005). Foreman has offered
remarkably little evidence suggesting any such chilling or that the PIP “actually
discouraged [her] from utilizing [her] FMLA entitlements.” Id. She testified that the
reporting requirement was something of a “gray spot” for her—in other words, while
she felt that she “needed to” be in-office by 9:00 a.m. each day, she also believed that
“because of the law,” River City wasn’t going to reject her requests to report to the
office late on specific days. (Doc. 13, #102). And, as far as the Court can tell, she was
right—Foreman exercised her right to protected leave numerous times while on the
PIP without “any pushback” from River City. (Id. at #90, 103; see also Doc. 13-4; Doc.
14-5, #231). That in turn at least suggests that the reporting requirement did not
discourage her use of FMLA leave.
In any event, her claim suffers from an even more fundamental flaw: an
inability to show that the alleged interference (including a reporting requirement in
the PIP) prejudiced her in a way that would impose FMLA liability on River City. The
Supreme Court has observed that, even if an employee proves an employer violated
the FMLA by interfering with her rights, the FMLA’s enforcement provision
“provides no relief unless the employee has been prejudiced by the violation.”
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). That prejudice,
moreover, must be of a certain kind. An employee can, for example, recover “any
wages, salary, employment benefits, or other compensation denied or lost,” or “any
actual monetary losses sustained … as a direct result of the violation.” 29 U.S.C.
§ 2617(a)(1)(A). Or the Court may grant equitable relief as “appropriate, including
employment, reinstatement, and promotion.” Id. § 2617(a)(1)(B). The point is that
“[t]he remedy is tailored to the harm suffered.” Ragsdale, 535 U.S. at 89.
Foreman’s problem here is that she cannot show she was prejudiced in a way
that warrants relief under the FMLA. She did not lose any wages, salary, or benefits
when River City imposed the PIP. To the contrary, she received leave (in the form of
delayed reporting) whenever she requested it, even while on the PIP. (Doc. 13, #68–
69, 89–92, 99–101, 103). And even if Foreman were to assert that she would have
pursued more leave if the PIP did not include the 9:00 a.m. reporting requirement,
she still cannot show she lost any wages or other compensation as a result of the
alleged interference.
Of course, Foreman also says River City terminated her because she used
FMLA leave, which could constitute interference and carry with it the sort of
prejudice that would allow the Court order equitable relief, such as requiring River
City to reinstate her. But as explained below, Foreman has not identified sufficient
evidence to create a genuine dispute that River City imposed the 9:00 a.m. reporting
requirement based on her previously-requested FMLA leave, or, more importantly,
that it terminated her for the leave she requested while on the PIP. See infra Part B.
And without proof that her termination was somehow tied up in her requests for
FMLA leave, the Court isn’t persuaded that reinstatement is “appropriate” relief (nor
in any event does Foreman request it). 29 U.S.C. § 2617(a)(1)(B).
At bottom, Foreman has failed to identify any prejudice she suffered because
of the alleged FMLA interference in the form of including a reporting requirement in
the PIP. And absent such prejudice, her claim fails as a matter of law.
B. Foreman’s FMLA Retaliation Claim Fails Because She Did Not
Establish Pretext.
Turn to Foreman’s FMLA retaliation claim. Beyond prohibiting interference,
the FMLA makes it “unlawful for any employer to discharge or … discriminate
against any individual for opposing any practice made unlawful by [the Act].” Id.
§ 2615(a)(2). Foreman says River City violated that prohibition when it (1) put her on
the PIP in June 2023, and (2) terminated her in January 2024.3 (Doc. 20, #347–53).
Just like Foreman’s FMLA interference claim, the Court analyzes her FMLA
retaliation claim under the three-part McDonnell Douglas framework. Donald v.
Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). Here, though, the elements of
Foreman’s prima facie case differ slightly. She must prove that (1) she was engaged
in FMLA-protected activity; (2) River City knew she was exercising her FMLA-
3 River City argues that Foreman’s FMLA retaliation claim hinges on only her termination,
not the PIP. (Doc. 15, #276). The Court isn’t convinced. Foreman’s Amended Complaint
alleges that River City “placed [Foreman] on a [PIP], which was motivated in part by the fact
she could not report to the office by 9:00 a.m. every day.” (Doc. 8, #27). And though her FMLA
retaliation claim doesn’t explicitly reference the PIP, it does incorporate preceding
paragraphs by reference. (Id. at #28). So while Foreman’s Amended Complaint could have
perhaps been clearer in some regards, the Court is nonetheless satisfied that she did base
her retaliation claim on imposition of the PIP, as well as her termination.
protected rights; (3) River City then “took an employment action adverse to her;” and
(4) “there was a causal connection between the protected FMLA activity and the
adverse employment action.” Id. at 761 (quotation omitted).
River City seems to concede that Foreman has met her burden on the first
three elements of her prima facie case, but argues she falls short on the fourth
element because there is insufficient temporal proximity to establish causation here.
(Doc. 15, #276–78). And it adds that, even if Foreman had satisfied her prima facie
obligation, she did not prove that River City’s legitimate, nondiscriminatory reason
to put her on the PIP and later terminate her—poor performance—was pretextual.
(Id. at #278–79; Doc. 22, #386–87). The Court ultimately agrees with the latter, so it
assumes (without deciding) that Foreman has established her prima facie case, and
proceeds directly to McDonnell Douglas’s remaining two steps.
River City cites Foreman’s poor performance as its reason to both place
Foreman on a PIP and later terminate her. (Doc. 15, #278–79). That counts as a
“nonretaliatory reason” for River City’s actions. Kovacevic v. Am. Int’l Foods, No. 22-
1675, 2023 WL 3756063, at *4 (6th Cir. June 1, 2023) (citing Imwalle v. Reliance Med.
Prods., 515 F.3d 531, 546 (6th Cir. 2008)). So the burden shifts to Foreman to prove,
by a preponderance of the evidence (or, as the Court is interpreting that phrase—
identify evidence creating a genuine dispute), that the stated reason was “factually
untrue,” or, said differently, that it was pretext for retaliation. Id. at *5 (quotation
omitted).
Plaintiffs usually show pretext by arguing that their employer’s stated reason
“lacked a factual basis, did not actually motivate the adverse action, or was
insufficient to motivate the adverse action.” Gray v. State Farm Mut. Auto. Ins. Co.,
145 F.4th 630, 640 (6th Cir. 2025). Foreman doesn’t specify under which route she’s
proceeding. But it ultimately doesn’t matter because, as the Sixth Circuit recently
noted, its “caselaw does not prescribe any particular method for showing pretext.” Id.
Pretext, at bottom, asks whether the employer’s act was “motivated by the proffered
reason or retaliation?” Id. So that’s the question to which the Court turns.
Foreman says three things reveal that it was her use of FMLA rights, not her
poor work performance, that motivated River City to take the adverse action it did:
(1) the PIP’s inclusion of the 9:00 a.m. reporting requirement, (2) the dearth of
contemporaneous documentation recording her supposed performance deficiencies,
and (3) the timing of the PIP and her termination when measured against her use of
FMLA leave. (Doc. 20, #350). But at day’s end, Foreman’s arguments fall short.
Take them in reverse order, starting with timing. Foreman seems to say that
because River City (1) placed her on a PIP within six months of it approving her
FMLA leave application, and (2) terminated her the day after she took FMLA-
protected leave, that timing implies pretext. (Id. at #348–49). Not necessarily.
“[T]emporal proximity alone may provide ‘evidence of a causal connection for the
purposes of satisfying a prima facie case of retaliation.’” Kovacevic, 2023 WL 3756063,
at *5 (quotation omitted). But it “cannot be the sole basis for finding pretext.” Id.
(quotation omitted). And since it’s the latter that’s at issue here, Foreman must
present something more than mere timing to meet her burden.
With that in mind, turn to Foreman’s complaint about the lack of
contemporaneous documentation concerning her performance deficiencies. Here,
Foreman claims River City issued her no disciplinary notices in connection with her
performance since January 2021, and instead “promoted”4 her to the purchase
processor team in January 2023, indicating not poor performance but excellent
performance. (Doc. 20, #349). And, Foreman protests, if her work product had become
poor enough to warrant termination, then one would have expected further discipline,
or at the very least, documentation of her failings, but River City memorialized
nothing until this litigation arose. (Id. at #349–50). In short, then, she says the lack
of documentation is suspect and hints at pretext.
The Court disagrees. To start, it matters not whether River City memorialized
Foreman’s shortcomings after it implemented Foreman’s PIP or after it terminated
her because “failure to document contemporaneously does not necessarily give rise to
an inference of pretext.” Kovacevic, 2023 WL 3756063, at *6 (citing Abdulnour v.
Campbell Soup Supply Co., 502 F.3d 496, 503 (6th Cir. 2007)). Beyond that, the record
before the Court shows that River City had at least discussed some of Foreman’s
performance-related shortcomings with her before it imposed the PIP, whether it
formally documented them or not. Indeed, the PIP stated that someone “counseled”
4 River City disagrees that Foreman’s placement on the Purchase Processor Team was a
“promotion.” (Doc. 14-8, #241). In its view, Foreman “started with the company as a Senior
Loan Processor and retained that position through the date of her termination,” regardless
of what team she was serving at any given time. (Id.).
Foreman concerning her “unacceptable performance” on June 15, 2023—nearly two
weeks before River City notified Foreman about the PIP. (Doc. 13-6, #179; see also
Doc. 14-8, #237 (suggesting that someone had “counseled [Foreman] about some
performance-related issues” before River City initiated the PIP)). And Foreman could
not refute that evidence. When asked at her deposition whether she had any
discussions with her supervisors about performance issues before the PIP started,
Foreman said she “may have,” but “d[id]n’t recall.” (Doc. 13, #80). Plus, the PIP also
confirmed, in no uncertain terms, that if Foreman’s performance decreased again
after she successfully completed the plan, that could “result in [her] dismissal from
River City Mortgage without the issuance of another warning or improvement plan.”
(Doc. 13-6, #179 (emphasis added)). Foreman, in other words, was on notice that any
post-PIP failures on her part could lead to her termination without additional
warning from River City. The alleged lack of contemporaneous documentation as to
Foreman’s deficiencies thus isn’t enough to establish pretext.
That leaves the PIP’s 9:00 a.m. reporting requirement, which Foreman claims
is smoking-gun evidence of pretext. But the Court isn’t convinced. For one, as already
explained, Foreman admitted that even after River City implemented the PIP, it
permitted her to use her FMLA leave and arrive at the office after 9:00 a.m. anytime
she requested. See supra Part A. True, that alone doesn’t necessarily negate the
potential for pretext—River City could have granted her leave with the ultimate goal
of terminating her because of that leave. But Foreman’s job at this juncture is to raise
at least a genuine dispute as to whether River City retaliated against her for her use
of FMLA leave. And the evidence she’s presented doesn’t do so.
To support its PIP and termination decisions, River City submitted two lists
outlining Foreman’s performance deficiencies: one summarizing numerous instances
in which Foreman did not adequately fulfill her role pre-PIP, (Doc. 14-13, #255), and
one summarizing the same post-PIP, (Doc. 14-14, #256–62). One of the lists, for
example, includes a screenshot of one former colleague asking another former
colleague to take over a loan for Foreman because her handling of it wasn’t up to
snuff. (See id. at #259). In response, all that Foreman offers to rebut that evidence of
her poor performance is a former colleague’s declaration, stating that Foreman was
a “top performer,” (Baker Decl., Doc. 20-3, #373), her own assertion that she
performed “excellent[ly],” (Doc. 20-2, #368), and a contention that former colleagues
awarded her a few “Spotlight Nominations” for her work,5 (id. at #368–69). None of
those, whether considered alone or in combination, create a genuine dispute that
River City took the action it did pretextually.
When it comes to determining whether an employer found its employee’s
performance deficient (or, rather, was engaged in impermissible retaliation), it’s the
employee’s supervisors’ and managers’ opinions that matter, not coworkers’ opinions.
Bart-Williams v. Exxon Mobil Corp., No. 1:16-cv-1338, 2017 WL 4401463, at *14 (E.D.
Va. Sept. 28, 2017). After all, managers—like Canann here—are the individuals
5 River City’s view of these “Spotlight Nomination” isn’t quite as enthusiastic as Foreman’s.
It describes the purpose of those awards as an attempt to “boost[] employee morale,” not as
any kind of job performance award. (Doc. 14-8, #241).
responsible for reviewing and evaluating an employee’s work. (See, e.g., Doc. 13-6,
#179). And the record evidence shows the River City managers found Foreman’s work
performance deficient. Foreman’s effort to rebut River City’s evidence of her poor
performance, by citing her own opinion and a couple of coworkers’ opinions that she
was an excellent worker, is simply not enough. Even viewing Foreman’s declaration,
her colleague’s declaration, and the assertion that still other colleagues nominated
her for a few awards in a light favorable to Foreman (as the Court must), all they
show is that she and a handful of other employees—not River City management who
was responsible for reviewing Foreman’s work—believed Foreman was performing
adequately. And those opinions tell the Court nothing about what River City thought
about Foreman’s performance, which is the operative question here.
Stated more generally, when an employer points to specific performance issues
as the basis for an adverse employment decision, the employee cannot respond by
relying on isolated positive feedback from coworkers, or self-serving testimony about
the employee’s own performance, to create a genuine dispute as to pretext. See Bart-
Williams, 2017 WL 4401463, at *15. Rather, the employee must “attack the specific
reason” River City offered for her termination—that her supervisors found her
performance inadequate. Id. And here Foreman does nothing of the sort. For example,
she did not come forward with evidence suggesting that the cited performance-based
shortcomings did not in fact occur (other than her subjective and self-serving belief
to the contrary (see Doc. 20, #354–55)). Nor did she provide evidence tending to show
that, as a general matter, River City does not respond to performance-based
deficiencies of the type at issue here by terminating the unsatisfactory employee
(which could give rise to an inference that the termination at issue was not in fact
motivated by the alleged conduct). She merely relied on her own belief and non-
supervisor colleagues’ beliefs as proof that her “job performance was generally
satisfactory,” which doesn’t create a genuine dispute when measured up against
River City’s evidence. Brown v. Siemens Healthcare Diagnostics, Inc., No. CIV.A. 11-
0769, 2012 WL 3136457, at *9 (D. Md. July 31, 2012).
In short, Foreman has not carried her burden of persuading the Court that a
genuine dispute remains as to what caused River City to take the actions it did. See
Gray, 145 F.4th at 640 (“[P]retext is about causation.”). Based on all available
evidence, River City placed Foreman on the PIP and later terminated her because
she was not living up to the company’s expectations for a senior loan processor. River
City notified Foreman of a performance-based infraction in 2021. (Doc. 13-9, #183).
And while Foreman seemingly resolved River City’s concern on that front, the record
suggests that other performance-related deficiencies surfaced in 2023. (See Doc. 14-
13, #255; Doc. 14-14, #256–62). All of that indicates River City terminated Foreman
because of her work quality, not IBS-related leave. Her conflicting view does not save
her claim. See Kovacevic, 2023 WL 3756063, at *6.
C. Foreman’s ADA Claim Fails Because River City Did Not Fail to
Accommodate Her and Because She Failed to Establish Pretext.
That leaves Foreman’s ADA claim, which she seems to raise as two separate
claims. She says River City discriminated against her by both (1) failing to
accommodate her IBS, and (2) terminating her on account of her IBS. (See Doc. 8,
#28–29). River City begins its attack on these claims by contesting whether
Foreman’s IBS even counts as a disability under the ADA. (Doc. 15, #280). But the
Court concludes that it need not reach that issue because, even assuming that IBS
does qualify, and that Foreman has otherwise satisfied her prima facie obligations
for both types of ADA claims, the claims still fail as a matter of law.
Begin with the failure-to-accommodate claim. The ADA prohibits employers
from “discriminat[ing] against a qualified individual on the basis of disability in
regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). One way an employer violates that
provision is by failing to reasonably accommodate an otherwise qualified disabled
employee’s physical or mental limitations. Id. § 12112(b)(5)(A).
Foreman says River City breached its obligation to accommodate her IBS when
it imposed the 9:00 a.m. reporting requirement in her PIP. (Doc. 20, #353). Foreman’s
trouble, though, is that she admitted River City didn’t fail to accommodate her.
Rather, as discussed above, each time she asked to come into the office later than 9:00
a.m., River City let her do so, no questions asked. (Doc. 13, #68–69, 89–92, 99–101,
103). The Court cannot make out how that amounts to a failure to accommodate when
River City, by Foreman’s own admission, allowed Foreman to do the very thing she
requested as an accommodation. And just because River City stopped allowing
Foreman to come into the office after 9:00 a.m. on days her IBS wasn’t flaring does
not mean it failed to accommodate her disability. Employers have an obligation to
provide a reasonable accommodation, not necessarily the reasonable accommodation
an employee requests. Trepka v. Bd. of Educ., 28 F. App’x 455, 459–60 (6th Cir. 2002).
And River City provided a reasonable accommodation when it permitted Foreman to
arrive at the office later whenever she asked. In short, then, Foreman’s ADA
accommodation claim fails for largely the same reason her FMLA interference claim
did. Supra Part A.
Now consider the ADA discrimination claim. Apart from requiring employers
to accommodate reasonable requests, the ADA further prohibits employers from
discriminating against qualified individuals “on the basis of disability in regard
to … the hiring, advancement, or discharge of employees.” 42 U.S.C. § 12112(a).
Foreman claims River City violated that provision when it terminated her because of
her IBS. (Doc. 20, #354).
Ultimately, though, the Court need not tarry long here either because this
claim fails for much the same reason Foreman’s FMLA retaliation claim does. That
is, she has not established that River City’s reason for either placing her on the PIP
or terminating her—poor performance—amounts to mere pretext. Supra Part B.
Foreman counters that all she must prove is but-for causation, not that her
IBS was the sole reason River City terminated her. (Doc. 20, #356). That’s true as a
legal matter. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 317 (6th Cir. 2012).
But the but-for causation element goes to Foreman’s prima facie case (which the
Court assumes for now that she’s established), not to pretext. Demyanovich, 747 F.3d
at 433. And in any event, the record suggests that even if Foreman wasn’t suffering
from IBS at the time of her termination, things “nevertheless would have transpired
the same way.” (See Doc. 20, #356 (quoting Price Waterhouse v. Hopkins, 490 U.S.
228, 240 (1989)). As discussed above, the available record evidence shows that River
City based its decisions concerning Foreman on her performance. That, in turn,
means she hasn’t established a genuine dispute as to whether her disability was a
but-for cause of her termination. Humboldt, 681 F.3d at 321.
CONCLUSION
For the reasons explained, the Court GRANTS River City’s Motion for
Summary Judgment (Doc. 15). The Court therefore DIRECTS the Clerk to enter
judgment and TERMINATE this case on its docket.
SO ORDERED.
September 2, 2025
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
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