Moton v. Amer Sports Winter & Outdoor Company

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - CINCINNATI

SAVANNAH MOTON, : Case No. 1:23-cv-703

Plaintiff, Judge Matthew W. McFarland

AMER SPORTS WINTER &

OUTDOOR COMPANY,

Defendant.

ORDER AND OPINION

This matter is before the Court on Defendant's Motion for Summary Judgment

(Doc. 13) and Plaintiff's Motion for Partial Summary Judgment (Doc. 14). Both motions

have been fully briefed. (See Docs. 15, 16, 17, 18.) Thus, this matter is ripe for the Court's

review. For the following reasons, Defendant’s Motion for Summary Judgment (Doc. 13)

is GRANTED; Plaintiff's Motion for Partial Summary Judgment (Doc. 14) is DENIED.

FACTS

I. Plaintiff's Employment

Defendant Amer Sports Winter & Outdoor Company (“ASWO”) is a distributor

of outdoor apparel; one of the brands it distributes is Arc’teryx. (Marshall Dep., Doc. 11-

1, Pg. ID 332.) Plaintiff Savannah Moton worked for Defendant from November 2021

through June 2022. (Moton Dep., Doc. 10-1, Pg. ID 87, 166-67.) Plaintiff began her position

at ASWO after finding a job posting for Recruiter-Brand Marketing for Arc’teryx on

LinkedIn. (Id. at Pg. ID 79; Job Listing, Doc. 10-1, Pg. ID 219-22.) In her role, Plaintiff led

the attraction and acquisition of new hires for Arc'teryx, and she was involved in the

recruiting process from beginning to end. (Moton Dep., Doc. 10-1, Pg. ID 81; Job Listing,

Doc. 10-1, Pg. ID 219-22.) As part of the process, Plaintiff would meet with a Hiring

Manager to discuss the position, post a job listing to find qualified applicants, and then

work with the Hiring Manager to interview and identify the best candidate for the

position. (Moton Dep., Doc. 10-1, Pg. ID 91-94.) Accordingly, Plaintiff's position required

her to work closely with Hiring Managers. (Id. at Pg. ID 95.)

During her time at ASWO, Plaintiff’s supervisor, Joel Brideau, received complaints

from the Hiring Managers with whom Plaintiff worked. (Moton Dep., Doc. 10-1, Pg. ID

110.) Generally, the Hiring Managers complained of the following issues with Plaintiff's

performance: (1) Plaintiff presented poor quality candidates; (2) Plaintiff was not

interacting enough with the Hiring Managers during the hiring process; and (3) Plaintiff

was struggling to properly prioritize her assignments. ([d. at Pg. ID 151, 109-11.)

Specifically, one Hiring Manager from the Marketing Department, Lindsey Matese

Kepley, cited communication issues with Plaintiff and copied Brideau on an email

exchange between the two. (Id. at Pg. ID 114-16.) Because of this, Brideau eventually told

Plaintiff, in a one-on-one meeting, that she would no longer work with the Marketing

Department on hiring assignments and needed to work on her “soft skills.” (Id. at Pg. ID

129, 133, 136-39.) Brideau also expressed these criticisms to Mariah Marshall in an email.

(Brideau Dep., Doc. 12-1, Pg. ID 461.) Brideau explained that he had sent Marshall this

list of concerns as a part of the discussions he had with Plaintiff about her work

performance because Marshall was the business partner for People and Culture. (Id.)

Brideau stated that the logical next step would have been a performance improvement

plan. (Id. at Pg. ID 463.) Plaintiff believed these criticisms were unjustified. (Moton Dep.,

Doc. 10-1, Pg. ID 136-39.)

II. □□□ Plaintiff’s Internal Complaints and Investigation

After learning that she would no longer work with the Marketing Department,

Plaintiff complained to ASWO’s Human Resources Department; Marshall investigated

the internal complaint. (Human Resources Complaint, Doc. 10-1, Pg. ID 228-29, 234;

Marshall Dep., Doc. 11-1, Pg. ID 270-72, 276, 582-88.) In her complaint, Plaintiff told

Marshall that she felt “extremely uncomfortable” during meetings with Brideau and also

stated that she believed she was a victim of discrimination. (Moton Dep., Doc. 10-1, Pg.

ID 136-39; Human Resources Complaint, Doc. 10-1, Pg. ID 228-29.) She reiterated this

claim of discrimination in a follow-up email, where she told Marshall “the only

conclusion that can be reasonably drawn for my so-called insufficient performance is

discriminatory in nature.” (Marshall Dep., Doc. 11-1, Pg. ID 292-93; Investigation Notes,

Doc. 10-1, Pg. ID 234-40.) Marshall interviewed Brideau as a part of the investigation, and

he provided a list of the issues he had with Plaintiff, along with the reasons he altered her

work assignments. (Investigation Notes, Doc. 10-1, Pg. ID 234-40.) Marshall also

interviewed Kepley from the Marketing Department, who detailed further issues she had

with Plaintiff's inability to receive constructive feedback well. (Id.)

Based on the investigation, Marshall found that Plaintiff was not the victim of

discrimination and had legitimate performance issues which Brideau addressed. (Moton

Dep., Doc. 10-1, Pg. ID 159; Investigation Notes, Doc. 10-1, Pg. ID 234-40; Marshall Dep.,

Doc. 11-1, Pg. ID 297-98.) ASWO transferred Plaintiff to a new manager, Autumn

Lightfoot, and informed her that she would no longer report to Brideau. (Marshall Dep.,

Doc. 11-1, Pg. ID 301-02.)

III. Performance Issues and Termination

While working for Lightfoot, Plaintiff began recruiting for IT-related positions and

received a significant number of new open positions to fill. (Marshall Dep., Doc. 11-1, Pg.

ID 302-03; Moton Dep., Doc. 10-1, Pg. ID 161-63.) Plaintiff had weekly meetings with

Lightfoot; during one of these meetings, a few weeks after the investigation, Lightfoot

informed Plaintiff that she had received complaints regarding Plaintiff's communications

issues with some Hiring Managers. (Moton Dep., Doc. 10-1, Pg. ID 164.) Plaintiff then met

with Lightfoot and Marshall, who jointly notified her that ASWO was terminating her,

effective June 17, 2022. (Id.; see also Termination Letter, Doc. 10-1, Pg. ID 241.) Marshall

had reviewed and approved the termination letter before Plaintiff received it. (Marshall

Dep., Doc. 11-1, Pg. ID 311.) As part of her job, Marshall testified that she typically

reviews complaints and documented performance issues to then make a

recommendation regarding termination to the department head. (Id. at Pg. ID 310.)

PROCEDURAL POSTURE

On October 27, 2023, Plaintiff filed her Complaint against Defendant, bringing

claims of race discrimination and retaliation under Title VII, 42 U.S.C. § 2000e-3(a) and

Ohio Revised Code § 4112. (Compl., Doc. 1, 4 29-43.) The parties engaged in discovery

and filed their dispositive motions on April 18, 2025. Defendant seeks summary judgment

in its favor on all claims, while Plaintiff seeks summary judgment in her favor only on

her retaliation claims. (Defendant’s Motion, Doc. 13; Plaintiff’s Motion, Doc. 14.)

LAW

When there is no genuine dispute as to any material fact and the moving party is

entitled to judgment as a matter of law, the district court shall grant summary judgment.

Fed. R. Civ. P. 56(a). The moving party has the burden to conclusively show that 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). If the moving party

meets that burden, then it becomes the nonmoving party’s responsibility to point to

specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

250 (1986). A court is under no obligation to search the record for genuine issues of

material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996).

Moreover, a “mere scintilla” of evidence in support of the nonmoving party’s

position is not enough to avoid summary judgment. Daniels v. Woodside, 396 F.3d 730, 734

(6th Cir. 2005). Rather, to preclude summary judgment, the nonmoving party must put

forth probative evidence on which a jury could reasonably reach a verdict in that party’s

favor. Anderson, 477 US. at 251-52; Lansing Dairy, 39 F.3d at 1347. If the nonmoving party

fails to make the necessary showing for an element on which it has the burden of proof,

then the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323.

“This standard of review remains the same for reviewing cross-motions for

summary judgment.” Olio State Univ. v. Redbubble, Inc., 989 F.3d 435, 441 (6th Cir. 2021).

Accordingly, in light of the dueling motions for summary judgment filed in this matter,

the Court must consider “each party’s motion on its own merits, taking care in each

instance to draw all reasonable inferences against the party whose motion is under

consideration.” Id. at 442 (quotation omitted).

ANALYSIS

As a preliminary matter, the Court will address the evidentiary issue that Plaintiff

raised in response to Defendant's Motion. (See Response, Doc. 16, Pg. ID 711.) As evidence

for its legitimate reason behind Plaintiff's discharge, Defendant relies on a statement from

Plaintiff's second supervisor, Lightfoot. (See Motion, Doc. 13, Pg. ID 632-33.) Lightfoot

told Plaintiff that she had received complaints from Hiring Managers about Plaintiff's

lack of communication; following that discussion, Defendant terminated Plaintiff.

(Moton Dep., Doc. 10-1, Pg. ID 164.) Plaintiff argues that this statement is inadmissible

hearsay, which the Court cannot consider when deciding a motion for summary

judgment. (Response, Doc. 16, Pg. ID 711 (quoting Tranter v. Orick, 460 F. App’x 513, 514

(6th Cir. 2012)).) Furthermore, Plaintiff argues that Defendant failed to identify the

decisionmaker who terminated Plaintiff, but that this unidentified decisionmaker relied

on this hearsay statement when deciding to terminate her. (/d. at Pg. ID 711-12.)

Defendant responds that this statement is not hearsay under Federal Rule of

Evidence 801(d)(2)(D). (Reply, Doc. 17, Pg. ID 735-36.) This rule provides that a statement

“made by the party’s agent or employee on a matter within the scope of that relationship

and while it existed” is not hearsay if offered against the opposing party. Fed. R. Evid.

801(d)(2)(D). Defendant asserts that Lightfoot is an employee or agent of Defendant and

made the statement within the scope of her employment. (Reply, Doc. 17, Pg. ID 735-36.)

The Court, however, disagrees with Defendant's understanding of Rule 801(d)(2)(D). “A

statement is non-hearsay if it is made by an opposing party and is offered against the

opposing party.” Williamson v. Lorain Cnty., No. 1:23-CV-1507, 2024 WL 4336375, at *2

(N.D. Ohio Sept. 27, 2024). Here, Defendant is attempting to offer the words in question

from their own employee, Lightfoot. Accordingly, Defendant's proffer of this declaration

from its own agent does not implicate Rule 801(d)(2)(D). See United States v. Daneshvar,

925 F.3d 766, 778 (6th Cir. 2019) (explaining that the party incorrectly sought to use his

own statements “on his behalf, not against an opposing party”); Midfield Concession

Enters., Inc. v. Areas USA, Inc., 130 F. Supp. 3d 1122, 1134 (E.D. Mich. 2015) (similar). The

statement is therefore inadmissible hearsay.

Having resolved the evidentiary issue, the Court now proceeds with examining

the parties’ Motions. Courts analyze Title VII claims and Ohio Civil Rights Act claims

under the same standard. Nelson v. Ball Corp., 656 F. App’x 131, 133 (6th Cir. 2016); see also

Newman v. Federal Exp. Corp., 266 F.3d 401, 406 (6th Cir, 2001). In such cases, when a

plaintiff has not presented any direct evidence of discrimination, like here, the McDonnell

Douglas burden-shifting framework applies. McDonnell Douglas Corp. v. Green, 411 US.

792 (1973); see also Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248 (1981). Under this

framework, a plaintiff faces the initial burden of presenting a prima facie case, which

creates a rebuttable presumption of discrimination that requires the defendant “to

articulate some legitimate, nondiscriminatory reason for taking the challenged action.”

Johnson v. Kroger Co., 319 F.3d, 866 (6th Cir. 2003) (quoting Johnson v. Univ. of Cincinnati,

215 F.3d 561, 572-73 (6th Cir. 2000)) (cleaned up). Once the defendant satisfies this burden,

the plaintiff must prove that the defendant’s proffered reason was a “pretext to hide

unlawful discrimination.” Id. (quoting Johnson, 215 F.3d at 573) (cleaned up). Defendant

asserts that it is entitled to summary judgment on all of Plaintiff's discrimination claims,

while Plaintiff moves for summary judgment only as to her retaliation claims. The Court

will analyze each set of claims in turn.

I. Plaintiff’s Race Discrimination Claims

Defendant states that Plaintiff's race discrimination claims fail as a matter of law

because she cannot demonstrate a prima facie case. (Motion, Doc. 13, Pg. ID 631.) To

establish a prima facie case of discrimination, Plaintiff must demonstrate: (1) she is a

member of a protected class; (2) she was qualified for the position and performed it

satisfactorily; (3) she suffered an adverse employment action; and (4) she was treated

differently than similarly situated, non-protected employees, or was replaced by a person

outside the protected class. Laster v. City of Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014). To

restate the fourth element, Plaintiff must show that her race was the “but for” cause of

the adverse action. Bostock v. Clayton County, Georgia, 590 U.S. 644, 656 (2020). Defendant

attacks both the second and fourth elements of Plaintiff's case, arguing that no genuine

dispute of material fact exists as to Plaintiff's discrimination claims. Alternatively, if

Plaintiff presents a prima facie case, shifting the burden to Defendant, then Defendant

argues that it had a legitimate, non-discriminatory reason for firing Plaintiff and is still

entitled to summary judgment.

A. Second Element: Qualification for the Position

Beginning with Defendant's attack on the second element, Defendant claims that

the record clearly shows Plaintiff did not perform satisfactorily in her position.

(Defendant's Motion, Doc. 13, Pg. ID 632 (citing Dews v. A.B. Dick Co., 231 F.3d 1016, 1022

(6th Cir. 2000)).) Defendant notes that Plaintiff failed to meet her work performance

expectations, despite multiple attempts on ASWO’s part to help her correct the issues.

(id.) For instance, Brideau told Plaintiff that he had received several complaints from

Hiring Managers; he also documented Plaintiff's deficient performance and eventually

reassigned Plaintiff to work with different Hiring Managers. (Id. (citing Moton Dep., Doc.

10, Pg. ID 109-11, 139).) Then, while working under her reassignment, Plaintiff was

discharged. (Id. at Pg. ID 632-33 (citing Moton Dep., Doc. 10, Pg. ID 164).) Thus, according

to Defendant, Plaintiff was not qualified for her position as required to prove her prima

facie case.

In response, Plaintiff argues that she has met the second element of her claims.

(Response, Doc. 16, Pg. ID 713.) She contends that Defendant distorts the law when it

states that she failed to meet the qualifications of the position. (Id.) Defendant provides

evidence that Plaintiff did not rise to the company’s legitimate expectations and had poor

performance. But, Plaintiff argues, her burden at the prima facie stage “is the minimal

burden of producing evidence to show her ... base-level qualification for the position.”

(Id. at Pg. ID 714 (citing Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 662-63 (6th Cir.

2000)).) According to Plaintiff, the record is clear that she was a well-qualified recruiter

when she was hired. (Id.) Defendant does not dispute this, nor does it address this

argument in its Reply. The Court agrees with Plaintiff. As the Sixth Circuit makes clear

in Cline v. Catholic Diocese of Toledo, courts analyzing the second element should look at

the plaintiff's employment record “prior to the events that spurred” the adverse

employment actions. 206 F.3d at 662; see also Wexler v. White's Fine Furniture, Inc.,317 F.3d

564, 574 (6th Cir. 2003) (en banc). Thus, no issue of material facts exists as to whether

Plaintiff was qualified for the job when she was hired.

B. Fourth Element: Causal Connection between Race and Termination

Defendant also asserts that Plaintiff “produced no evidence tending to show that

the outcome [of her employment] would have changed, ‘but for’ her race.” (Defendant's

Motion, Doc. 13, Pg. ID 631.) Defendant points to the record, where Plaintiff admits that

she is “not sure” whether Kepley treated her differently than other employees. (Id. at Pg.

ID 632 (citing Moton Dep., Doc. 10, Pg. ID 148).) Additionally, Plaintiff admitted that “no

racial slurs were directed towards her in the course of her employment with Defendant.”

(Id. (citing Moton Dep., Doc. 10, Pg. ID 166).) In sum, Defendant contends that Plaintiff

has failed to establish the fourth element of her claims.

In response, Plaintiff argues that, when establishing her prima facie case, “false

responses in discovery, particularly those related to the decisionmaker and reasons for

termination, raise an inference of discrimination.” (Response, Doc. 16, Pg. ID 714-15

(citing Coburn v. Rockwell Automation, Inc., 238 F. App’x 112, 124 (6th Cir. 2007)).) Plaintiff

states that Defendant has “perfunctorily argue[d]” that Plaintiff had performance issues

in its Motion, but such a claim is “belied by [Defendant's] failure to cite any evidence in

10

support of that proposition.” (Id. at Pg. ID 710.) Specifically, Plaintiff states that

Defendant failed to identify the decisionmaker for the termination. (Id.)

However, the Court finds several issues with this argument. First, this is a

misstatement of the law. In Coburn, the court found that false responses “create[d] a

genuine issue as to pretext,” and were not used to analyze whether the plaintiff had

established a prima facie case. 238, F. App’x at 123-24. In fact, in Coburn, the plaintiff

established his prima facie case with direct evidence of discrimination, so the McDonnell-

Douglas burden-shifting framework never applied. Id. at 119-20. Furthermore, while

Plaintiff claims that Defendant has failed to present the reasons for her termination, this

is false. Marshall testified that she discussed performance gaps, like lack of

communication, and analyzed this feedback when making her recommendation to the

department head about Plaintiff's termination. (Marshall Dep., Doc. 11-1, Pg. ID 306-08.)

That department head then makes the official decision based on her recommendation.

(Id.) Her testimony thus provides specific reasons for Plaintiff's termination and reveals

the decision-making process behind it. So, while Plaintiff claims that Defendant's

contradictory discovery responses create an inference of discrimination, establishing her

fourth element, the Court finds that her argument is without merit.

Instead, Defendant points out, and the Court agrees, that Plaintiff has not brought

forth any evidence showing that she was fired because of her race. Courts have granted

summary judgment where the plaintiff could not satisfy the fourth element of a

discrimination claim that a comparable, non-protected person was treated better. See

Mitchell v. Toledo Hosp., 964 F.2d 577, 581-82 (6th Cir. 1992) (affirming district court's

11

decision on summary judgment where plaintiff could only point to mere allegations of

discrimination). The record here is devoid of any testimony from Plaintiff describing

similarly situated individuals who experienced better treatment, or who remained

employed. And, Plaintiff herself could not say whether other recruiters were treated

differently. (See Moton Dep., Doc. 10-1, Pg. ID 148.) Simply put, Plaintiff has not put forth

any evidence showing a causal link between her race and her termination; she cannot

satisfy the fourth element of her prima facie case. Since Plaintiff's claim fails at the first

stage of the McDonnell-Douglas framework, the burden has not shifted to Defendant to

defend its proffered reason for termination. Without any evidence showing that non-

protected individuals were treated differently than Plaintiff, there is no genuine dispute

of material fact as to whether Plaintiff was fired because of her race. Defendant is thus

entitled to summary judgment on the race discrimination claims.

II. Plaintiff’s Retaliation Claims

Plaintiff's remaining claims state that Defendant retaliated after she filed her

internal complaint alleging race discrimination. (Compl., Doc. 1, /] 36-43.) To establish

a prima facie case for retaliation under either Title VII or Ohio Revised Code § 4112,

Plaintiff must prove that: (1) she engaged in a protected activity under Title VII; (2)

Defendant knew she exercised her protected rights; (3) Defendant took an adverse

employment action against her; and (4) Plaintiff's protected activity was the direct cause

of the adverse employment action. Kenney v. Aspen Techs., Inc., 965 F.3d 443, 448 (6th Cir.

2020) (citing Laster v. City of Kalamazoo, 746 F.3d 714, 730-31 (6th Cir. 2014)). If Plaintiff

successfully establishes her prima facie case, then the McDonnell Douglas framework

TZ

shifts the burden to Defendant to prove a “legitimate, nondiscriminatory reason for its

action.” McDonnell Douglas Corp., 411 U.S. at 802. And, if Defendant satisfies that burden,

then Plaintiff must demonstrate that Defendant’s proffered reason is pretext for

discrimination. Id. at 804.

Both parties seek summary judgment on these retaliation claims. Defendant

argues that Plaintiff's retaliation claims fail because she “produced no evidence of a

causal connection” between the protected activity and her termination. (Defendant's

Motion, Doc. 13, Pg. ID 634.) Conversely, Plaintiff argues that she is entitled to summary

judgment on these claims because she has established her prima facie case and can prove

that Defendant's proffered reason for terminating her was a pretext for discrimination.

(Plaintiff's Motion, Doc. 14, Pg. ID 646.) Neither party disputes that Plaintiff has satisfied

the first three elements of the retaliation claims; accordingly, the Court’s discussion will

focus on the final element: the causal connection. (See Defendant’s Motion, Doc. 13, Pg.

ID 634; Plaintiff's Motion, Doc. 14, Pg. ID 646-48.)

Defendant’s argument mirrors its reasoning for summary judgment on the

discrimination claims. (Defendant's Motion, Doc. 13, Pg. ID 634-35.) According to

Defendant, Plaintiff produced no evidence to show that her complaint to Human

Resources was the “but for” cause of her discharge. (Id.) For starters, Plaintiff's complaint

involved Brideau, but he did not assist in the decision to terminate her. (Id.) And, there is

no other evidence on the record showing that her internal complaint led to her discharge.

(Id. at Pg. ID 635.) The best Plaintiff can show is a temporal proximity between the

complaint and her termination, but “mere temporal proximity alone is not sufficient to

13

establish a claim for retaliation.” (Id. at Pg. ID 634 (citing Wasek v. Arrow Energy Sercvs.,

682 F.3d 463, 471-72 (6th Cir. 2012)).) Indeed, the Sixth Circuit emphasized in Wasek that

it has “repeatedly cautioned against inferring causation based on temporal proximity

alone.” 682 F.3d at 471-72.

Plaintiff responds, and argues in her own Motion, that the Sixth Circuit has held

that when the adverse action occurs very soon after the employer learns of the protected

activity, such temporal proximity is sufficient to show a causal connection (Plaintiff's

Motion, Doc. 14, Pg. ID 649 (citing Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d

274, 284 (6th Cir. 2012)); Plaintiff's Response, Doc. 16, Pg. ID 707.) Specifically, the Sixth

Circuit has found a ten-week gap to be the cut-off for establishing a causal connection

based on temporal proximity alone. (Plaintiff's Motion, Doc. 14, Pg. ID 649 (citing Stein v.

Atlas Indus., Inc., 730 F. App’x 313, 319 (6th Cir. 2018)).) Furthermore, Plaintiff argues that

Wasek, which Defendant cites, “actually ruled that an intervening act destroyed any

causation established by temporal proximity.” (Plaintiff's Response, Doc. 16, Pg. ID 707.)

Therefore, Plaintiff asserts, the four-week gap between her internal complaint and her

termination is sufficient to establish a causal connection on her retaliation claims.

Defendant, however, seeks to differentiate Plaintiff's case from the other Sixth

Circuit cases that found close temporal proximity alone created an inference of a causal

connection. (Defendant’s Response, Doc. 15, Pg. ID 683; Defendant's Reply, Doc. 17, Pg.

ID 739.) Specifically, Defendant points out that “[Plaintiff’s] job was already in jeopardy

before she complained about her supervisor.” (Reply, Doc. 17, Pg. ID 739.) In fact, the

Sixth Circuit has cautioned that “employees who see the proverbial writing on the wall

14

that they are about to be fired should not be able to use Title VII protections to insulate

themselves from adverse employment actions that were previously contemplated.” (Id.

(quoting Tharp v. Apel Int'l, LLC, No. 21-6070, 2022 WL 2981770, at *3 (6th Cir. July 28,

2022) (cleaned up)).) As such, courts “have held that causation is lacking when an

employer follows a pre-existing line of action regardless of the employee’s protected

action.” (Id. (citing Tharp, 2022 WL 2981770, at *3).)

Defendant likens this logic to Plaintiff's case, where her poor job performance was

“raised repeatedly by her managers and constituents” before she submitted her

complaint. (Defendant’s Reply, Doc. 17, Pg. ID 740; see also Defendant’s Response, Doc.

15, Pg. ID 684.) In fact, Defendant highlights that, before Plaintiff filed her internal

complaint, Brideau had emailed Marshall a list of performance-related issues he had

compiled. (Defendant’s Response, Doc. 15, Pg. ID 684; see also Marshall Dep., Doc. 11-1,

Pg. ID 282; Brideau Dep., Doc. 12-1, Pg. ID 461-63.) Brideau and Marshall explained that

they would have met to discuss these issues. (Marshall Dep., Doc. 11-1, Pg. ID 285-86;

Brideau Dep., Doc. 12-1, Pg. ID 462.) They both indicated that the likely next step would

have been a performance improvement plan, and Marshall even indicated that

termination could be a potential outcome given the complaints. (Brideau Dep., Doc. 12-

1, Pg. ID 463; Marshall Dep., Doc. 11-1, Pg. ID 285.) Plaintiff does not address this

argument in her Reply but merely restates that temporal proximity alone can be

sufficient. (See Plaintiff's Reply, Doc. 18, Pg. ID 756.)

The Court finds Defendant’s argument compelling. The Sixth Circuit has

established that employees “who see the proverbial writing on the wall that they are

15

about to be fired” cannot avoid adverse actions by engaging in protected activity. Montell

v. Diversified Clinical Seres., Inc., 757 F.3d 497, 507 (6th Cir. 2014) (citing Univ. of Texas

Southwester Med. Ctr. V. Nassar, 570 U.S. 338, 358 (2013)); see also Tharp, 2022 WL 2981770,

at *3. Courts, therefore, should address these situations by following precedent set by the

Supreme Court: “[w]hen the employer proceeds along lines previously contemplated,

[courts] must not take the temporal proximity of the adverse employment action as

evidence of causality.” Id. (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001))

(cleaned up).

Here, Marshall and Brideau testified that Brideau had compiled a lengthy list of

performance issues which began before Plaintiff filed her internal complaint. (Brideau

Dep., Doc. 12-1, Pg. ID 463; Marshall Dep., Doc. 11-1, Pg. ID 285.) And, they both

indicated that a performance improvement plan was the next step, with Marshall stating

that termination could also be likely given the significant performance gaps, especially if

improvement did not seem possible. (Brideau Dep., Doc. 12-1, Pg. ID 463; Marshall Dep.,

Doc. 11-1, Pg. ID 285.) Thus, Plaintiff's termination, after Defendant reassigned her in an

attempt to help, represents Defendant proceeding “along lines previously

contemplated.” Montell, 757 F.3d at 507. Although Plaintiff disputes that she had

performance issues after she left Brideau’s supervision, Marshall testified that she

discussed “performance gaps,” like lack of communication and failing to present

adequate candidates, with Lightfoot when making her recommendation to terminate

Plaintiff. (Marshall Dep., Doc. 11-1, Pg. ID 306-08.) Accordingly, temporal proximity of

Plaintiff's complaint and termination alone cannot prove causality. Without evidence of

16

causality, Plaintiff has failed to show a prima facie case of retaliation. Once again, the

Court may end its analysis here. Defendant is entitled to summary judgment on these

claims. See Tharp, 2022 WL 2981770, at *4 (affirming summary judgment where plaintiff

failed to show causality with temporal proximity because employer proceeded along

previously contemplated lines).

CONCLUSION

Based on the foregoing reasons, the Court ORDERS the following:

1. Defendant’s Motion for Summary Judgment (Doc. 13) is GRANTED;

2. Plaintiff's Motion for Partial Summary Judgment (Doc. 14) is DENIED;

3. Summary judgment is ENTERED in favor of Defendant on all of Plaintiff's

claims;

4. This case is TERMINATED from the Court’s docket.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

Hatha Un ada

By:

JUDGE MATTHEW W. McFARLAND

If