Opinion

Hailes

Court
District Court, N.D. Ohio
Filed
Aug 28, 2026
Cited by
0 cases

The opinion

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JENNIFER HAILES, CASE NO. 1:24-cv-293

Plaintiff,

vs. MAGISTRATE JUDGE

JAMES E. GRIMES JR.

SECRETARY OF DEPARTMENT OF

VETERANS AFFAIRS,

MEMORANDUM OPINION

Defendant. AND ORDER

Pro se Plaintiff Jennifer Hailes and Defendant Secretary of the

Department of Veterans Affairs have filed cross motions for summary

judgment on Hailes’s federal-sector, Title VII retaliation claim. As is discussed,

the Court grants the Secretary’s motion and denies Hailes’s motion.

1. Background

Hailes has worked for the Department of Veterans Affairs, commonly

known as the VA, since 2000. Doc. 53-1, at 9. During the time relevant to this

action, she worked at the VA’s Cleveland Medical Center, in its Pathology and

Laboratory Medicine Service. Id. at 13, 18. The parties refer to Pathology and

Laboratory Medicine Service as PALMS.1 While employed with PALMS,

Hailes worked as a microbiology medical technologist. Id. at 13.

1 The use of acronyms and initialisms, seemingly designed to help only

the author and hinder the reader, has unfortunately proliferated in the legal

profession. See Bryan A. Garner, Garner’s Modern English Usage 3–4 (4th ed.

2016) (discussing initialese). And this case involves the Government, the

From 2013 through November 2020, Hailes’s supervisor was Tracey

Ellis-Reid. Id. at 13–14, 19. Hailes viewed Ellis-Reid as a mentor. Id. at 15. For

Ellis-Reid’s final performance appraisal of Hailes, for the period from October

2019 to September 2020, Ellis-Reid rated Hailes’s actual achievement as

exceptional—the top of three categories—in all five appraisal elements. Doc.

52-1, at 7. And Ellis-Reid rated Hailes’s overall performance as outstanding—

the highest of five possible ratings. Id. at 9.

As it turns out, Ellis-Reid was generous in her ratings. Including Hailes,

she rated five medical technicians. She gave four of her subordinates, including

Hailes, outstanding overall performance ratings. Doc. 54-4. One subordinate

received an excellent. Id.

Following Ellis-Reid’s retirement, Hailes’s supervisor from November

2020 through April 2022, was Natalyia Kachaluba. Id. at 19. Things did not go

well between Hailes and Kachaluba. See Doc. 54-3 (detailing incidents from

March through June 2021).

In March 2021, Hailes filed a union grievance having to do with a

“failure to interview or promote.” Doc. 53-1, at 46–47. In that month, she also

filed a complaint with the Equal Employment Opportunity Commission (the

Commission) alleging claims of racial discrimination, “failure to promote,” and

country’s largest producer of initialisms and sometimes unpronounceable

acronyms. So the use of initialisms and acronyms is, with apologies,

unavoidable here.

retaliation. Id. at 47–48. For clarity, neither of these complaints is related to

Hailes’s retaliation claim here. See id. at 47–49.

In May 2021, Kachaluba issued Hailes her mid-year progress review.

See Doc. 52-5. Kachaluba gave Hailes an overall rating of “Fully Successful or

better,” and rated Hailes’s actual achievement as fully successful—the middle

of three categories—in all five appraisal elements. Id. at 7–8.

In June 2021, Hailes filed a complaint through the VA’s Harassment

Protection Program (HPP). Id. at 49–50; see Doc. 54-3. According to a fact-

finding report completed following an investigation prompted by Hailes’s

complaint, Hailes alleged that after she filed her Equal Employment

Opportunity complaint, Kachaluba began harassing Hailes and treating her

unfairly. Doc. 54-3, at 1. During her deposition in this case, Hailes testified

that her HPP complaint alleged that Kachaluba “over-scrutiniz[ed]” Hailes’s

“work[,] … asked [Hailes] to work outside of standard operating procedures[,]

and issued errors when [Hailes] refused [an] unlawful order.” Doc. 53-1, at 49.

As to this latter point, Hailes testified that to maintain its accreditation, her

lab at the VA had to follow certain standard operating procedures. Id. at 30–

31. Hailes testified that no one is permitted to deviate from these procedures

“unless the deviation is in writing and signed and approved by the medical

director.” Id. at 31. In Hailes’s view, Kachaluba deviated from those procedures

“to issue [Hailes] illegitimate errors in [Hailes’s] performance.” Id. at 31–33.

An investigator “found no evidence to support harassment by way of Ms.

Kachaluba toward Ms. Hailes.” Doc. 54-3, at 4.

On June 12, 2021, Kachaluba emailed two other VA officials forwarding

three proposed disciplinary Reports of Contact related to Hailes and asked the

other officials to review the proposed reports and let Kachaluba “know if

anything need[ed] to [be] added or change[d].” Doc. 52-4, at 4. One official

responded on June 14, 2021, with suggestions. Id. The other responded the

next day, June 15, to report that she had spoken with the vice president of the

employees’ union, who had explained what a supervisor “needs” to do when

issuing a Report of Contact. Id. at 8. Late in the day on June 15, the person

assigned to investigate Hailes’s HPP complaint first notified Kachaluba about

the complaint. Doc. 52-3, at 5–7. The next day, June 16, 2021, Kachaluba

signed a Report of Contact in which Kachaluba documented that Hailes failed

to follow certain laboratory procedures for three patients’ reports. Doc. 52-4, at

5. Kachaluba added that she had “spoken” “multiple times” with Hailes about

“properly” “reporting … patient reports” and “following” “established”

“procedures.” Id. Kachaluba considered Hailes’s conduct to be “direct

insubordination.” Id. Hailes received the document on June 24, 2021. Id. at 4.

“[A]round the same time” that Hailes filed her HPP complaint, she also

filed a complaint with the VA’s Office of Inspector General. Doc. 53-1, at 50.

Hailes alleged that “verbal deviations from” PALMS standard operating

procedures presented a “risk to patient safety.” Id. The Inspector General’s

office “opened a case based on” Hailes’s complaint in early July 2021. Doc. 52-

3, at 10. The record does not directly reveal the result of any Inspector General

investigation that may have resulted from Hailes’s complaint, but Hailes

testified that she “received an email [indicating] that it was closed.” Id. at 50–

51. Dr. Mohamed Ansari, the chief of PALMS, learned about the Inspector

General complaint during a meeting with the HPP investigator in July or

August 2021. Doc. 53, at 51–52.

Although Hailes apparently later filed other complaints, see id. at 53–

54, only her HPP and Inspector General complaints are relevant to the

retaliation claim that Hailes brings in this case, id. at 48, 51.

In November 2021, Kachaluba issued Hailes’s performance appraisal for

the period October 2020 through September 2021. Doc. 52-5. Kachaluba gave

Hailes an overall performance rating of fully successful and rated her as fully

successful—the middle of three choices—in all five rating elements. Id. at 7–9.

In other words, Kachaluba rated Hailes the same as she’d rated Hailes in

Hailes’s mid-year review, issued in May.

It turns out the Kachaluba was less generous in her ratings than Ellis-

Reid. Of Kachaluba’s seven subordinates, only one received an outstanding

rating and six—including Hailes—received a fully successful rating. Doc. 54-5,

at 1. Kachaluba thus rated as fully successful all four of the medical

technicians whom Ellis-Reid had rated as outstanding. Compare Doc. 54-4,

with Doc. 54-5.

On Friday, November 26, 2021, which was the day after Thanksgiving,

Hailes emailed Mayra Rosado, laboratory manager and assistant chief of

PALMS, to contest her evaluation. Doc. 52-7, at 4. Rosado forwarded Hailes’s

email to Dr. Maria Navas, who was the microbiology laboratory director. Id. at

3. On Tuesday, November 30, 2021, Kachaluba emailed Dr. Navas for a

statement about an incident that had occurred in August 2021 during a staff

meeting. Id. Dr. Navas responded later that day. Id. at 2. In her email, she said

that during the staff meeting, Hailes “lashed out aggressively against”

Kachaluba and “against other ‘categorical’ techs and made several

inflammatory statements raising her voice and standing up.” Id. According to

Dr. Navas, Hailes’s “attacks” caused two recently hired technicians to cry. Id.

In early January 2022, Hailes asked Kachaluba whether she could “be

removed from training or any situations that [would] require [Hailes] to be

alone with” a particular co-worker. Doc. 53-1, at 105–06. Hailes explained that

because of false accusations made against Hailes, she “no longer felt

comfortable … being in situations with [that co-worker] where there were no

witnesses present.” Id. at 106. Kachaluba responded “that if [Hailes] wanted

to be removed from training” her co-worker, then Hailes “needed to put it in

writing and send it to [Kachaluba] in an email.” Id. at 107.

Hailes then emailed Kachaluba with her request. Id. Shortly after

Hailes emailed Kachaluba, Hailes encountered Kachaluba in a hallway. Id. at

108. Kachaluba approached Hailes and “put[] her hand in [Hailes’s] face and”

said that if Hailes “want[ed] to be removed from training … it’s going to be

negatively reflected against you on your performance.” Id. at 108–09; see Doc.

52-10, at 3. While saying this to Hailes, Kachaluba “was very aggressive and

in [Hailes’s] face and yelling and pointing her finger at [Hailes].” Doc. 53-1, at

109.

During her deposition, Hailes was asked whether she ever completed

work as directed by Kachaluba that was outside the standard operating

procedures. Id. at 111. Hailes said that she did start doing that in early 2022

because she “had no choice.” Id. Hailes then added that:

I fell in line, if you will, because the environment

was so hostile and the harassment was so intense. I

mean, I was in therapy and on medication because

of this.

I know that I wasn’t—after it got to that point, I

wasn’t the only one that she was doing that [to]

anymore. I was just the only one that was refusing

it.

In the depositions that I took of the other coworkers,

they admit—even in the [Commission

administrative] judge’s analysis for his summary

judgment he said, it is evident that [Kachaluba] does

this with everyone, deviates from SOPs, and called

me insubordinate because I’m the only one who

refused to break the law. Everybody else did it

because of their fear of reprisal.

Id. at 111–12.

Later in January 2022, Hailes filed a second complaint with the

Commission.2 See id. at 54; Doc. 52-11, at 73. Hailes claimed that she “was

subjected to reprisal/retaliation for her prior EEO activity.” Doc. 52-11, at 73.

She claimed that Kachaluba twice retaliated against her:

1. On November 24, 2021, … Kachaluba … issued

[Hailes] lower job elements and an overall

performance appraisal rating at the “fully

successful” level based on unjustified alleged

deficiencies, that barred her from a performance

award, and after Mayra Rosado …, Assistant Chief,

Pathology & Laboratory Medicine Service, refused to

intervene or change the rating; and

2. On January 4, 2022, [Kachaluba] yelled at,

threatened and/or verbally admonished [Hailes]

about the lab work schedule and for [Hailes’s]

request to be removed from training a co-worker

with whom [Hailes] had previous issues.

Id. at 74. A Commission administrative judge adjudicated Hailes’s claims and,

in February 2024, granted the VA’s motion for summary judgment. Id. at 73–

105.

Hailes filed this action later in February 2024. Doc. 1. In the operative,

amended complaint, Hailes raises a single claim under Title VII for retaliation.

Doc. 7, at 7–8. She alleges that she complained to the Commission, the VA’s

Office of Inspector General, her union, human resources, and senior officials in

her office “about her supervisor[’]s practice of requiring the staff to perform

2 Hailes asserts that she filed her second Commission complaint in

December 2021. See Doc. 52, at 7. But she doesn’t cite anything to support that

assertion.

work outside of Standard Operating Procedures.” Id. at 7. Hailes allegedly

“also filed a complaint when she noticed an unqualified employee being

interviewed for a position and to protest [Hailes’s] failure to qualify for the

same position.” Id. Hailes’s supervisor, Kachaluba, knew about these

“protected EEO actions.” Id. Following Hailes’s actions, she was “harassed,

yelled at, and discriminated against by her supervisors, blamed for creating

division in the lab, written up, accused of causing laboratory contaminations,

removed from specialized duties, and given lower performance ratings.” Id. at

8. And Hailes’s “supervisors intentionally cancelled a position for which [Hailes

was] qualified and applied for.” Id. According to the amended complaint, these

actions amounted to retaliation for having opposed an unlawful employment

practice. Id. Hailes seeks declaratory judgment, back-pay, compensatory and

punitive damages, and attorney fees and costs. Id.

2. Legal Standards

2.1 Summary Judgment

Under Federal Rule of Civil Procedure 56(a), a “court shall grant

summary judgment 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.”

The moving party may, but is not required “to[,] produce evidence showing the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). As the rule says, the moving party may “discharge[]” its

burden “by ‘showing’—that is, pointing out to the district court—that there is

an absence of evidence to support the nonmoving party’s case.” Id.

A party asserting that a fact is in genuine dispute, i.e., the party

opposing summary judgment, must do more than simply say that it is so. See

Bennett v. Louisville Metro Gov’t, 616 F. App’x 820, 823 (6th Cir. 2015); Fed. R.

Civ. P. 56(c)(1). Rather, a party asserting that there is a genuine dispute must

support her assertion with “cit[ations] to particular parts of materials in the

record” or she must show either that her opponent’s evidentiary “materials …

do not establish the absence … of a genuine dispute, or that [the movant]

cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)

(emphasis added); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49

(1986). And “[i]f a party … fails to properly address another party’s assertion

of fact …, the court” has the discretion to “consider the fact undisputed for

purposes of the motion” and, if otherwise appropriate, grant summary

judgment. Fed. R. Civ. P. 56(e); see Ghandi v. Police Dep’t of City of Detroit, 747

F.2d 338, 345 (6th Cir. 1984) (“Plaintiffs … are not entitled ‘to get to the jury

on the basis of the allegations in their complaints, coupled with the hope that

something can be developed at trial’”) (quoting First Nat. Bank of Ariz. v. Cities

Serv. Co., 391 U.S. 253, 289–90 (1968)).

Because Hailes is unrepresented, the Court is obligated construe

liberally her pleadings and filings. Boswell v. Mayer, 169 F.3d 384, 387 (6th

Cir. 1999). This liberal-construction requirement, however, “do[es] not apply

after a case has progressed to the summary judgment stage.” Johnson v.

Stewart, No. 08-1521, 2010 WL 8738105, at *3 (6th Cir. May 5, 2010) (citations

omitted). A party’s pro se status, therefore, does not mean that Rule 56’s

requirements do not apply. See Viergutz v. Lucent Techs., Inc., 375 F. App’x

482, 485 (6th Cir. 2010). In opposing the VA’s summary judgment motion,

therefore, Hailes “‘may not rely merely on allegations or denials in [her] own

pleading; rather, [her] response must—by affidavits or … otherwise…—set out

specific facts showing a genuine issue for trial.’” Id. (quoting Fed. R. Civ. P.

56(e)(2)); see Myers v. Shelly Co., No. 24-cv-0792, 2026 WL 653640, at *3 (N.D.

Ohio Mar. 9, 2026); see also Zainalian v. Memphis Bd. of Educ., 3 F. App’x 429,

431 (6th Cir. 2001) (affirming a grant of summary judgment, noting that

because the pro se plaintiff “neither verified his affidavit nor complaint, signed

them under oath, nor signed them under penalty of perjury ..., the facts averred

to therein lacked the force and effect of an affidavit for purposes of responding

to a motion for summary judgment”).

2.2 Employment Discrimination and Retaliation

Title VII prohibits an employer from “discriminat[ing] against any

individual with respect to [the individual’s] compensation, terms, conditions,

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

sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Because a similar

prohibition applies in the case of federal employees, see 42 U.S.C. § 2000e-

16(a), it is apparent that sovereign immunity does not bar Title VII claims

against government agencies, see Taylor v. Geithner, 703 F.3d 328, 333 (6th

Cir. 2013). Title VII prohibits an employer from retaliating against an

employee “because [s]he has opposed any practice made an unlawful

employment practice by [Title VII], or because [s]he has made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a); see Hamm v.

Pullman SST, Inc., 167 F.4th 382, 392 (6th Cir. 2026). This anti-retaliation

provision applies to federal employees like Hailes. See Taylor, 703 F.3d at 335–

36; see also Zickefoose v. Austin, No. 2:22-cv-1935, 2023 WL 7167001, at *4

(S.D. Ohio Oct. 31, 2023) (noting that although “the federal-sector [Title VII]

provisions contain no separate, express prohibition on retaliation …. it seems

inescapable that the prohibition on retaliation that the Supreme Court located

in the federal-sector ADEA’s language in [Gomez-Perez v. Potter, 553 U. S. 474

(2008)] would apply equally to Title VII’s federal-sector provisions”).

To establish a prima facie retaliation claim, a plaintiff must establish

that (1) she “engaged in protected activity”; (2) her employer knew of her

protected activity; (3) the employer took a “materially adverse employment

action” against her; and (4) a causal connection existed between the protected

activity and the materially adverse employment action. Crisp v. Scioto

Ambulance Dist., 182 F.4th 490, 494 (6th Cir. 2026). The third element can

alternatively be satisfied by showing that the employer “subjected the plaintiff

to severe or pervasive retaliatory harassment by a supervisor.” Wyatt v. Nissan

N. Am., Inc., 999 F.3d 400, 419 (6th Cir. 2021). Materially adverse means

“‘significant’ harm.” Muldrow v. City of St. Louis, Missouri, 601 U.S. 346, 357

(2024). To prove a Title VII retaliation claim in a federal-sector case, a plaintiff

seeking “‘reinstatement, backpay, compensatory damages, or other forms of

relief related to the end result of an employment decision’” must show that her

protected activity “was the but-for cause of the [adverse] employment decision.”

Zickefoose, 2023 WL 7167001, at *4; see Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 352 (2013). This but-for requirement means that a plaintiff “must

‘put forth some evidence to deduce a causal connection between the adverse

action and protected activity,’ that is ‘sufficient to raise the inference’ that the

discrimination or ‘protected activity was the likely reason for the adverse

action.’” Pemberton v. Bell’s Brewery, Inc., 150 F.4th 751, 767 (6th Cir. 2025)

(discussing retaliation under the Americans with Disabilities Act) (citations

omitted); see Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997)

(“Retaliation claims are treated the same whether brought under the ADA or

Title VII.”).

But if the plaintiff in a federal-sector Title VII retaliation case seeks

forward-looking relief, the but-for standard does not apply. See Zickefoose, 2023

WL 7167001, at *4. Rather, the plaintiff need only show that the protected

activity “played a part in” the employer’s adverse action. Huff v. Buttigieg, 42

F.4th 638, 645 (7th Cir. 2022); Zickefoose, 2023 WL 7167001, at *4.

If an employee lacks direct evidence, the Court will “follow the same

[McDonnell Douglas] burden-shifting approach in [the] retaliation context

that” applies “in the discrimination context.” See Hamm, 167 F.4th at 393; see

also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973); Seifu v.

Postmaster Gen. of United States, No. 21-4068, 2022 WL 19835788, at *3 (6th

Cir. Dec. 12, 2022) (applying the McDonnell Douglas framework in a federal-

sector Title VII retaliation case). Applying this burden-shifting framework

means that the employee “must [first] establish a prima facie case of

retaliation.” Hamm, 167 F.4th at 393. If she makes that showing, the burden

shifts to the employer “to identify a ‘legitimate, nondiscriminatory reason’ for”

the adverse employment action. Id. (quoting Kenney v. Aspen Techs., Inc., 965

F.3d 443, 448 (6th Cir. 2020), in turn quoting McDonnell Douglas, 411 U.S. at

802)). If the employer does that, the burden shifts back to the employee, who

must “introduce evidence that would allow a reasonable jury to find that [the

employer’s] identified reason for” the adverse employment action] was ‘a mere

pretext’ for its real reason: [the employee’s protected] complaint.” Id. (quoting

Kenney, 965 F.3d at 448)

3. Discussion

3.1 Exhaustion and Time Limitations

Hailes is a federal employee. When it allowed “federal employees to sue

under Title VII, Congress conditioned the government’s waiver of sovereign

immunity upon a plaintiff’s satisfaction of ‘rigorous administrative exhaustion

requirements and time limitations.’” McFarland v. Henderson, 307 F.3d 402,

406 (6th Cir. 2002) (quoting Brown v. Gen. Servs. Admin., 425 U.S. 820, 833

(1976)). As a prerequisite to filing a Title VII discrimination or retaliation case

against an employer, a federal employee “must contact an Equal Employment

Opportunity (‘EEO’) counselor within forty-five days of an alleged

discriminatory occurrence.”3 Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir.

2003); see 29 C.F.R. § 1614.105(a)(1). “Failure to do so is cause for dismissal of

the complaint by the agency, as well as by the district court.” Steiner, 354 F.3d

at 435; see 29 C.F.R. § 1614.107(a)(2); see also 29 C.F.R. § 1614.107(b)

(permitting the Commission to dismiss fewer than all claims). The upshot of

these requirements is that a Court can only consider allegedly retaliatory

conduct that occurs within the 45-day window that precedes a plaintiff’s

contact with her agency’s Equal Employment Opportunity office. See Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“discrete discriminatory

acts are not actionable if time barred, even when they are related to acts

alleged in timely filed charges. Each discrete discriminatory act starts a new

clock for filing charges alleging that act.”); see also Qafko v. Nielsen, No. 17-cv-

3 As a general matter, retaliation claims are “excepted from [the

exhaustion] requirement because they usually arise after the filing of the

EEOC charge.” Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 254 (6th

Cir. 1998). But “this exception to the filing requirement does not apply to

retaliation claims based on conduct that occurred before the EEOC charge was

filed.” Id. Hailes’s claims predate her second EEOC claim, which alleged

retaliation.

13916, 2018 WL 2194017, at *2 (E.D. Mich. May 14, 2018) (applying Morgan

in the federal-employment context).

“As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit

that were not included in her EEOC charge.” Lybarger v. Gates, No. 10-cv-0373,

2012 WL 1095915, at *7 (N.D. Ohio Mar. 30, 2012) (citing 42 U.S.C. § 2000e–

5(e)(1)); see Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010).

In other words, the employee’s federal lawsuit cannot include claims that were

not presented to the Commission unless the claims are “reasonably related to

or grow out of the factual allegations in the EEOC charge.” Younis, 610 F.3d

at 361–62; see Lybarger, 2012 WL 1095915, at *7.

Once a Commission administrative judge issues a decision, the

respondent agency has 40 days to take final action on that decision. See 29

C.F.R. § 1614.110(a). If the agency does not take final action within 40 days,

“then the decision of the administrative judge shall become the final action of

the agency.” 29 C.F.R. § 1614.109(i).

Here, Hailes has not exhausted her administrative remedies. She filed

this action within days after the Commission’s administrative judge issued his

decision, but well before the expiration of the VA’s time to take final action.

Except in response to Hailes’s effort to expand her claim beyond what was

presented to the Commission, however, see Doc. 57, at 6, 9 & n.2, Doc. 58, at

2,4 the VA has not sought to enforce the exhaustion requirement. So Hailes’s

failure to fully exhaust her claim need not detain the Court in considering the

claims that the Commission’s administrative judge adjudicated. See Fort Bend

Cnty., Texas v. Davis, 587 U.S. 541, 551–52 (2019).

3.2 Merits

The Court’s review has been hampered by the different ways that the

parties have failed to follow this Court’s summary judgment procedures. See

Doc. 22-1. First, neither moving party filed a joint statement of stipulated facts.

See id. at 1. Second, neither party filed “a separate, short and concise

statement of material facts.” Id. And although Hailes submitted a statement

of material facts, she incorporated it into her memorandum. Doc. 52, at 1–7.

Further, while the parties were required to support “[e]ach asserted fact” with

a “citation to the specific evidentiary material, including the specific page

number, that supports it,” id, at 2, Hailes only intermittently provided

supporting citations.5

4 When citing the parties’ motions and supporting memoranda, the Court

cites the CM/ECF-generated pages numbers at top of each page.

5 For instance, Hailes does not support her assertions that: (1) she was

“declared ineligible for [an] interview” for a position as a “GS-11 Clinical

Microbiology Technical Specialist”; (2) she filed corrective reports and non-

conforming events as to a co-worker who she thought was unqualified for the

co-worker’s position; (3) the co-worker was promoted; or (4) the co-worker

received “the highest annual performance rating of Exceptional … and the

highest overall rating of Outstanding.” Doc. 52, at 3–4, 6.

Because the parties were warned that their failure to follow the Court’s

summary judgment procedure could “be grounds for denial of [their]

motion[s],” id. at 1, the Court could deny both motions. But, in the interest of

securing a “just, speedy, and inexpensive determination,” Fed. R. Civ. P. 1, the

Court will put these failings aside and adjudicate the parties’ motions while

applying Rule 56.

3.2.1 What is this case about?

At the outset, it is necessary to spell out what this action is—and is not—

about. Hailes at times seems to conflate this case with others in which she

raised discrimination claims. For instance, Hailes argues that she was subject

to disparate treatment compared to a Hispanic co-worker. Doc. 52, at 17–18.

While disparate treatment is an element of a discrimination case, it is not an

element of a retaliation case. And Hailes references the August 2021 staff

meeting as evidence of retaliation. Doc. 52, at 10. But the events surrounding

that meeting were “part of [Hailes’s] prior EEO” complaint, Doc. 53-1, at 52,

see Doc. 10-1, at 4, 8, which she resolved through settlement.

Recall that the contours of a Title VII suit are framed by the claim raised

in the predicate complaint to the Commission. Younis, 610 F.3d at 361–62. And

the claim that Hailes raised with the Commission as to this lawsuit was for

retaliation. See Doc. 52-11, at 73–74 & n.3. Indeed, the Commission’s

administrative judge noted that Hailes had clarified in various ways “that she

[was] exclusively alleging retaliation … and not race discrimination.” Id. at 73–

74 n.3. And Hailes’s amended complaint raises a single claim of retaliation not

discrimination. Doc. 7, at 7. This case is thus about allegations of retaliation.6

But retaliation for what? Answering this question is not

straightforward. In the amended complaint, Hailes says that the retaliation

resulted from her internal complaints that (1) “her supervisors … require[ed]

the staff to perform work outside of Standard Operating Procedures”; (2) “an

unqualified employee [was] interviewed for a position”; and (3) Hailes “fail[ed]

to qualify for th[at] same position.” Doc. 7, at 7. In her motion for summary

judgment, Hailes says that the retaliation was triggered by her HPP

complaint, her “refusal to obey unlawful orders, and for [her] reporting of

receiving unlawful orders to outside [a]gencies.” Doc. 52, at 8. But in her

opposition to the VA’s motion for summary judgment Hailes says that the

retaliation was triggered by her first Equal Employment Opportunity

complaint in March 2021, and her HPP complaint in June 2021. Doc. 56, at 3–

5.

Given the above-noted ambiguity, the most appropriate and fair course

is to take Hailes at her word. During her deposition, Hailes denied that her

March 2021 Equal Employment Opportunity complaint “is the protected

activity[]” that triggered the retaliation “in this case.” Doc. 53-1, at 48. Instead,

“the retaliation for this case is based off the HPP complaint that [she] filed in

6 In her opposition to the VA’s motion, Hailes makes a passing reference

to constructive discharge. Doc. 56, at 8. An opposition to a motion for summary

judgment is not the place to raise for the first time a new claim.

June of … 2021” and her Inspector General complaint. Id. at 48–50. And Hailes

views that HPP complaint as being based on “the over-scrutinization of [her]

work, as well as [her] being asked to work outside of standard operating

procedures and issued errors when [she] refused the unlawful order.” Id. at 49.

Hailes’s case is thus based on the allegation that she suffered retaliation for

filing her HPP and Inspector General complaints. Cf. Doc. 54-1, at 2–3. (VA

motion for summary judgment relying on Hailes’s deposition testimony to

frame the bases for Hailes’s retaliation claim).

In framing the issues before the Court, the next question has to do with

the acts that Hailes alleges constitute retaliation. Once again, matters are not

straightforward. The acts that Hailes alleged to the Commission as being

retaliatory were Kachaluba’s November 2021 performance appraisal of Hailes

and the January 2022 incident in which Kachaluba yelled at Hailes in a

workplace hallway. See id. at 73–74.

Hailes, however, seemingly references other incidents. In her motion,

she asserts that the acts of retaliation:

include[] but [are] not limited to abolishment during

an all-staff meeting, threats of retaliatory

disciplinary actions, harassment, defamation of

character, unsubstantiated errors issued in bench

performance and records & reporting, and through

the lowering of Plaintiff’s annual performance

rating.

Doc. 52, at 10 (emphasis added). Aside from Hailes’s November 2021

performance rating, the VA claims that the remainder of these matters are not

part of Hailes’ retaliation claim because they occurred more than 45 days

before Hailes contacted an Equal Employment Opportunity counselor. Doc. 57,

at 5; see Steiner, 354 F.3d at 435; 29 C.F.R. §§ 1614.105(a)(1), 1614.107(a)(2),

(b).

The problem with this assertion is that the 45-day requirement is an

affirmative defense “on which [the VA] bears the ultimate burden of proof.”

Rembisz v. Lew, 590 F. App’x 501, 503 (6th Cir. 2014); Lockett v. Potter, 259 F.

App’x 784, 786 (6th Cir. 2008). And although the record shows that Hailes filed

her second Commission complaint—the one that served as a precursor to this

action—sometime in January 2022, the 45-day window is not tied to when

Hailes filed her Commission complaint; it’s tied to when she first contacted an

Equal Employment Opportunity counselor. The record, however, doesn’t show

when Hailes contacted a counselor.

Taking the referenced events in turn, “abolishment during an all-staff

meeting” apparently refers to the staff meeting between microbiology staff and

Dr. Ansari and Dr. Navas that the amended complaint alleges took place in

August 2021. Doc. 7, at 6. Hailes references this meeting in the statement of

facts section of her motion. Doc. 52, at 5. She asserts that Dr. “Navas … openly

yelled at and verbally threatened” her at this meeting, id., and later cites a co-

worker’s sworn declaration, which generally supports Hailes’s assertions about

the meeting, see Doc. 52, at 14 (citing Doc. 52-10, at 2–3). As noted above,

however, this event is part of Hailes’s other Commission complaint, which she

resolved through settlement. It is thus relevant here only as it relates to

Hailes’s performance evaluation.

The asserted “threats of retaliatory disciplinary actions” is unmentioned

in the statement of facts in Hailes’s motion. See Doc. 52, at 1–7. And without a

supporting citation, there is also no basis to consider what these “threats”

might entail.

“[D]efamation of character” appears to reference Dr. Navas’s November

30, 2021 email to Kachaluba about Dr. Navas’s recollection of Hailes’s actions

during the August staff meeting. See id. at 6. Without supporting citation,

Hailes “states [that] Navas’[s] allegations” in her email to Kachaluba “were

both slanderous, libel, and defamed the Plaintiff’s professional character.” Doc.

52, at 6. While there is no dispute that there was a staff meeting in August

2021, Hailes’s bald, unsupported statement that Dr. Navas’s allegations were

defamatory is not enough to make the allegations defamatory. See Zainalian,

3 F. App’x at 431. So the most that can be said is that Dr. Navas recounted to

Kachaluba what Dr. Navas remembered about the meeting. More on this email

below.

“[U]nsubstantiated errors issued in bench performance and records &

reporting” is ambiguous. It seemingly references the asserted facts that:

In June of 2021, Kachaluba, Rosado, Dixon, and

Robbins conspired to issue the Plaintiff

unsubstantiated a ROCs for alleged failures to

follow standard operating procedures when verbally

instructed to deviate from written SOP. Which

included management officials of other departments

taking turns adding details and encouraging others

to “embellish” more on their allegations against the

Plaintiff. (See Ex. D, pgs.9-10).

Doc. 52, at 4. The cited pages include a draft disciplinary memorandum from

Kachaluba to Hailes and a June 18, 2021 email from a VA official to Kachaluba

saying, “I went ahead and filled this out a bit. Please feel free to embellish if

you feel it is necessary . . .” Doc. 52-4, at 10–11.7 The draft, however, is neither

signed nor dated and, according to Hailes’s deposition testimony, was never

issued. Doc. 53-1, at 85–87. Neither cited page shows that anyone issued Hailes

“unsubstantiated errors.”

On the other hand, in the next paragraph of her motion, Hailes cites

earlier pages in Document 52-4. See Doc. 52, at 4. These pages concern email

exchanges between Kachaluba and others starting on June 12, 2021, regarding

a Report of Contact that Kachaluba ultimately issued to Hailes a few days

later. See Doc. 52-4, at 4–9. Liberally construing Hailes’s motion, the Court

regards the reference to “unsubstantiated errors” as concerning these email

exchanges and the issued Report of Contact.

Hailes, however, did not present these “unsubstantiated errors” as a

separate act of retaliation for her HPP or Inspector General complaints. See

Doc. 52-11, at 73–74. And with good reason. The email exchanges between

Kachaluba and others started on June 12, 2021, which was before both Hailes’s

7 What Hailes cites as pages “9–10” in “Ex. D” are pages 10 and 11 in

Document 52-4.

HPP and Inspector General complaints. The “unsubstantiated errors” could

not have been motivated by Hailes’s later HPP and Inspector General

complaints

So the alleged acts of retaliation that have an apparent basis in the

record are Hailes’s performance review, Dr. Navas’s email to Kachaluba, and

the January 2022 hallway incident.8

To recap, as presented, Hailes alleges that after she filed her HPP and

Inspector General complaints, she suffered retaliation, as evidenced by

Hailes’s performance review, Dr. Navas’s email, and the January 2022 hallway

incident.

3.2.2 For summary-judgment purposes, Hailes’s HPP complaint

constitutes protected activity

With the issue framed, it bears remembering that the parties have cross-

moved for summary judgment. The standard for evaluating cross motions for

summary judgment does not differ from the standard applied when only one

party to the litigation moves for summary judgment. Ferro Corp. v. Cookson

Group, PLC, 585 F.3d 946, 949 (6th Cir. 2009). As a result, each party’s motion

must be evaluated “‘on its own merits,’” and the Court must view all facts and

reasonable inferences in the light most favorable to the nonmoving party. Id.

at 949–50 (quoting Taft Broad. Co. v. U.S., 929 F.2d 240, 248 (6th Cir. 1991)).

Here, however, the relevant facts are, unless noted, not in dispute. And even

8 Hailes mentions the hallway incident in her statement of facts. Doc. 52,

at 7. And it was one of the two acts considered by the Commission.

viewing all of Hailes supported assertions in the light most favorable to her,

she hasn’t presented evidence sufficient to support her claim.

As noted, a prima facie case of retaliation has four elements. Hailes

must show that: (1) she engaged in protected activity; (2) the VA knew of her

protected activity; (3) the VA took an action that was adverse to her; and (4) a

causal connection existed between the protected activity and the materially

adverse action. Wyatt, 999 F.3d at 419. As an initial matter, Hailes’s claim that

she engaged in protected activity is problematic. Protected activity under Title

VII, means either (1) “oppos[ing] any practice made an unlawful employment

practice’ by Title VII or (2) “ma[king] a charge, testif[ying], assist[ing], or

participat[ing] in any manner in an investigation, proceeding, or hearing”

under Title VII. 42 U.S.C. § 2000e–3(a). Title VII, however, “is not a general

bad acts statute ... and it does not prohibit ... employers from retaliating

against an employee based on her opposition to ... practices that are outside

the scope of Title VII.” Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011). So,

“a complaint of general misconduct by a supervisor, unrelated to the

complainant’s race, color, gender, religion, or national origin, is not activity

protected by Title VII.” Burns v. Johnson, 18 F. Supp. 3d 67, 73 & n.45 (D.

Mass. 2014); see Shed v. Univ. of S. Fla. Bd. of Trs., No. 23-13746, 2025 WL

1540573, at *4 (11th Cir. May 30, 2025) (“Title VII does not protect against

retaliation resulting from complaints about non-employment related

practices.”).

Start with Hailes’s Inspector General complaint. The details of what was

in this complaint are sparse. The Inspector General complaint is not in the

record. The only description of it comes from Hailes’s deposition. Hailes

testified that the Inspector General complaint had to do with “verbal deviations

from [standard operating procedures] that” presented a “risk to patient safety.”

Doc. 53-1, at 50. But complaints that Kachaluba’s orders presented a “risk to

patient safety,” id., don’t qualify as protected activity because Title VII is not

concerned with patient safety or whether Kachaluba was authorized to order

personnel to deviate from established procedures. See Burns, 18 F. Supp. 3d at

73 (“a complaint of general misconduct by a supervisor, unrelated to the

complainant’s race, color, gender, religion, or national origin, is not activity

protected by Title VII”); see also Logan v. City of Chicago, 4 F.4th 529, 539 (7th

Cir. 2021) (“‘Title VII is not a general bad acts statute’”) (quoting Crowley v.

Prince George’s Cnty., Md., 890 F.2d 683, 687 (4th Cir. 1989)). As a result,

Hailes cannot base her retaliation claim on the Inspector General report.9

This leaves Hailes’s HPP complaint. Because the HPP complaint is not

in the record, the Court relies on Hailes’s deposition testimony that the HPP

complaint was based on “the over-scrutinization of [her] work, as well as [her]

9 Hailes includes in her summary judgment motion a section in which she

states that she “is a member of a protected class under Title VII.” Doc. 52, at

9. Given Hailes’s inclusion of this section in her motion, it may be that she

believes that because she is a member of a protected class, reporting any sort

of misconduct is protected activity. But proving one’s status is not an element

of a Title VII retaliation claim. See Wyatt, 999 F.3d at 419.

being asked to work outside of standard operating procedures and issued errors

when [she] refused the unlawful order.” Doc. 53-1, at 49. One might think that

none of these matters have anything to do with what Title VII protects. See 42

U.S.C. § 2000e–2(a)(1); Burns, 18 F. Supp. 3d at 73. But the VA, which is

represented by counsel, concedes that the fact that Hailes filed her HPP

complaint could be considered protected activity. Doc. 54-1, at 6 n.1. The Court

will thus proceed based on the assumption that the HPP complaint constitutes

protected activity. See Clark v. Sweeney, 607 U.S. 7, 9 (2025).

3.2.3 There is no evidence that the VA took an action materially

adverse to Hailes or subjected her to severe or pervasive retaliatory

harassment by a supervisor

Because the record shows that the VA knew about Hailes HPP

complaint, the next question is whether there is a genuine dispute about

whether the VA took any action that was adverse to Hailes or subjected her to

severe or pervasive retaliatory harassment by a supervisor. See Wyatt, 999

F.3d at 419. Specifically, the question is whether Hailes “fully successful”

performance review, Dr. Navas’s email, or the January 2022 hallway incident

are adverse actions or amounted to severe or pervasive retaliatory harassment

by a supervisor.

Beginning with the performance review, even assuming that a “fully

successful” evaluation might qualify as sufficiently adverse or harassing,

Hailes’s own evidence shows that Kachaluba did not lower Hailes’s

performance review following the HPP complaint. The first opportunity that

Kachaluba had to review Hailes’s performance was in May 2021 for Hailes mid-

year progress review. See Doc. 52-5. Kachaluba issued this review weeks before

Hailes filed her HPP complaint. In the mid-year review, Kachaluba gave

Hailes an overall rating of “Fully Successful or better,” and rated Hailes’s

actual achievement as fully successful—the middle of three categories—in all

five appraisal elements. Id. at 7–8.

And in Kachaluba’s November 2021 annual review of Hailes’s

performance—the review at issue—Kachaluba rated Hailes’s overall

performance as fully successful and rated her as fully successful—the middle

of three choices—in all five rating elements. Doc. 52-5, at 7–9. In other words,

Kachaluba rated Hailes the same in the annual review as in Hailes’s mid-year

review. So Kachaluba did not lower Hailes review after the HPP complaint.

Further, to establish a retaliation claim, a plaintiff must show that she

was subject to actions that “a reasonable employee would have” viewed as

“materially adverse” and that “might have ‘dissuaded a reasonable worker

from making or supporting a charge of discrimination.’” Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438

F.3d 1211, 1219 (D.C. Cir. 2006)). Here, Kachaluba rated six out of her seven

subordinates—including Hailes—as fully successful. In doing that, Kachaluba

rated as fully successful all four of the medical technicians whom Ellis-Reid

had rated as outstanding. Compare Doc. 54-4, with Doc. 54-5. Given that

Kachaluba rated all of Hailes’s similarly situated co-workers the same, it is not

possible without more to infer that Hailes’s annual performance evaluation

constituted an adverse employment action. Nor is it possible to infer based on

this evidence that Hailes’s evaluation amounted to severe or pervasive

retaliatory harassment by a supervisor. Rather, taking this evidence in the

light most favorable to Hailes, the only reasonable inference is that Kachaluba

was harder to please than Ellis-Reid.10

Next up is Dr. Navas’s email recounting her recollection of what

happened at the August meeting, which Hailes alleges without support was

defamatory. The VA does not regard this event as a separate alleged retaliatory

event, largely because the Commission’s administrative judge didn’t list it as

a retaliatory event. Doc. 54-1, at 8, 11. In opposing the VA’s motion, Hailes

does not dispute the VA’s position. See Doc. 56. Rather, she mentions alleged

“defamation” as a factor in the causation and pretext analysis. Id. at 9–10. So

there is no real dispute that the email is not an adverse action.

But even giving Hailes the benefit of the doubt and even when viewed

in the light most favorable to Hailes, no evidence supports the idea that Dr.

Navas’s email was an adverse action or an example of severe or pervasive

10 The VA also argues that “the Sixth Circuit has repeatedly held that

unsatisfactory work reviews, absent some loss in salary, title, or benefits, do

not rise to the level of a materially adverse employment action.” Doc. 54-1, at

12. But the cases on which it relies to support this assertion deal with

discrimination claims. See id. “The ‘materially adverse action’ element of a

Title VII retaliation claim is,” however, “substantially different from the

‘adverse employment action’ element of a Title VII race discrimination claim.”

Laster v. City of Kalamazoo, 746 F.3d 714, 719 (6th Cir. 2014).

retaliatory harassment. Recall that although Hailes asserts that Dr. Navas’s

recollection was defamatory, there’s no evidence that it was. And other than

asserting it, Doc. 52, at 17, Hailes does nothing to show that a supervisor’s

email—sent in this case after Kachaluba issued Hailes’s performance review—

recounting an event would be viewed as “materially adverse” such that it

“might have ‘dissuaded a reasonable worker from making or supporting a

charge of discrimination.’” Burlington, 548 U.S. at 68. Indeed, since Dr. Navas

didn’t send the email to Hailes and Hailes didn’t learn about it until later, there

is no basis to infer that it might “dissuade[] a reasonable worker from” doing

anything, let alone “making or supporting a charge of discrimination.” Id.

This leaves the hallway incident in January 2022. Hailes testified that

this incident began when she emailed Kachaluba, at Kachaluba’s direction,

asking “to be removed from training” Hailes’s co-worker. Doc. 53-1, at 107.

Soon after Hailes sent the email, Kachaluba approached Hailes and “put[] her

hand in [Hailes’s] face and” and said that if Hailes “want[ed] to be removed

from training … it’s going to be negatively reflected against you on your

performance.” Id. at 108–09; see Doc. 52-10, at 3. While saying this to Hailes,

Kachaluba “was very aggressive and in [Hailes’s] face and yelling and pointing

her finger at [Hailes].” Doc. 53-1, at 109.

The problem for Hailes with respect to this event is that “Title VII …

does not set forth ‘a general civility code for the American workplace.’”

Burlington, 548 U.S. at 68 (quoting Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75, 80 (1998)). Unfortunately, “‘a boss’s yelling at an employee,

subjecting the employee to unjustifiable criticism, and calling into question his

or her future on the job is a common employee experience.’” Benitez v. Tyson

Fresh Meats, Inc., No. 3:18-cv-0491, 2022 WL 1283087, at *72 (M.D. Tenn. Apr.

28, 2022) (quoting Slater v. Town of Exeter, No. No. 07-407, 2009 WL 737112,

at *10 (D.N.H. Mar. 20, 2009)). Simply put, while perhaps unprofessional,

Kachaluba’s aggressive yelling “does not constitute an adverse action.” Id. at

*73; see Baloch v. Kempthorne, 550 F.3d 1191, 1195, 1199 (D.C. Cir. 2008)

(holding that “profanity-laden yelling” during four separate verbal

altercations, including a threat “to have [employee] arrested, led out of the

building in handcuffs, and jailed” were not adverse actions). There is no

evidence that the hallway incident was an adverse action or amounted to

severe or pervasive retaliatory harassment by a supervisor.

Hailes has failed to present evidence that would allow a factfinder to

conclude or infer that she was subjected to an adverse employment action or

severe or pervasive retaliatory harassment.

3.2.4 Causal connection

Even putting the above aside, Hailes still must demonstrate a causal

connection between the HPP complaint and her November evaluation, Dr.

Navas’s email, and the January 2022 hallway incident. Wyatt, 999 F.3d at 419.

A federal-sector plaintiff seeking money damages must show but-for causation.

Zickefoose, 2023 WL 7167001, at *4–5. A plaintiff can do this through

“‘evidence that defendant treated the plaintiff differently from similarly

situated employees or that the adverse action was taken shortly after the

plaintiff’s exercise of protected rights.’” Strickland v. City of Detroit, 995 F.3d

495, 511 (6th Cir. 2021) (quoting Nguyen v. City of Cleveland, 229 F.3d 559,

563 (6th Cir. 2000)).

But if the plaintiff in a federal-sector Title VII retaliation case seeks

injunctive or other forward-looking relief, the but-for standard does not apply.

See Zickefoose, 2023 WL 7167001, at *4. Rather, the plaintiff need only show

that the protected activity “played a part in” the employer’s adverse action.

Huff, 42 F.4th at 645–46; see Zickefoose, 2023 WL 7167001, at *4.

In this regard, the federal-sector provision in the Age Discrimination in

Employment Act (ADEA) “was patterned ‘directly after’ Title VII’s federal-

sector discrimination ban.” Gomez-Perez, 553 U.S. at 487 (quoting Lehman v.

Nakshian, 453 U.S. 156, 167 n.15 (1981)). “[T]he Supreme Court’s construction

of the ADEA is [thus] the best guidance available for defining the causation

standards under Title VII’s federal-sector provisions.” Zickefoose, 2023 WL

7167001, at *4. In Babb v. Wilkie, the Court held that ADEA’s federal-sector

provision did not require but-for causation for plaintiffs seeking forward-

looking relief. 589 U.S. 399, 402, 413–14 (2020). Instead, evidence that age

played a part in an employment decision is sufficient for liability. Huff, 42

F.4th at 645. Applying this guidance here, the but-for causation standard

applies to claims for compensatory damages, and Babb’s standard applies to

forward-looking “claims for declaratory and injunctive relief and attorney’s

fees and costs.” Zickefoose, 2023 WL 7167001, at *5; see Huff, 42 F.4th at 646;

cf. Babb, 589 U.S. at 413–14; Bledsoe v. Tennessee Valley Auth. Bd. of Directors,

42 F.4th 568, 578 n.2 (6th Cir. 2022) (“To establish that he is entitled to

injunctive relief, Bledsoe need only show that ‘age discrimination play[ed] any

part’ in the decision to demote him.”).

The VA’s motion, which focuses on the but-for causation standard,

necessarily only concerns Hailes’s claims for monetary relief. Doc. 54-1, at 14–

19. Given the time between Hailes’s HPP complaint and her performance

evaluation, the way Kachaluba reviewed her other subordinates, and Hailes

admitted insubordination, the VA says Hailes has no evidence of causation. Id.

at 14–19.

For her part, Hailes focuses on the time between her HPP complaint and

her evaluation as evidence of causation. Doc. 52, at 10; Doc. 56, at 9. But, to be

clear, there is no evidence that she was treated differently from similarly

situated employees. Everyone whom Ellis-Reid rated as outstanding received

from Kachaluba the same rating as Hailes. And Hailes admitted that the

reason for her negative interactions with Kachaluba was that, unlike her co-

workers, Hailes refused to follow Kachaluba’s instructions. Doc. 53-1, at 111–

12. Hailes says that those instructions were illegal. But for purposes of the

similarly situated analysis, the relevant point is that Hailes’s co-workers

followed Kachaluba’s instructions and Hailes didn’t.11

As to temporal proximity, there are differing lines of authority. The

Sixth Circuit has “noted that temporal proximity alone is not sufficient to

support a retaliation claim … and that plaintiffs generally must show temporal

proximity combined with ‘other compelling evidence’ of retaliation to support

their claims.” Howington v. Quality Rest. Concepts, LLC, 298 F. App’x 436, 446

(6th Cir. 2008) (quoting Nguyen, 229 F.3d at 566). On the other hand, under

this line of authority, “‘there may be circumstances where evidence of temporal

proximity alone would be sufficient to support [an] inference’ of retaliation.”

Id. (quoting Nguyen, 229 F.3d at 567). If the retaliatory conduct follows within

one to two days of protected activity, a court may infer causation without more

evidence. See id. at 446–47. The cases in which a court could infer causation

based solely on a temporal connection are “‘limited [in] number.’” Id. at 447

(quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008));

cf. Mickey, 516 F.3d at 523–26 (involving an “employer [who] fires an employee

immediately after learning of a protected activity,” although the activity

occurred 12 days before). Basically, “the more that a protected activity is

temporally distant from the adverse employment action, ‘the more the plaintiff

must supplement his claim with other evidence of retaliatory conduct to

11 In fact, if Kachaluba told everyone to take actions outside the standard

operating procedures, there is no basis to infer that Kachaluba’s orders to

Hailes were based on a retaliatory motive.

establish causality.’” Boshaw v. Midland Brewing Co., 32 F.4th 598, 605 (6th

Cir. 2022) (quoting Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 400 (6th

Cir. 2010)); see Lemaster v. Lawrence Cnty., Kentucky, 65 F.4th 302, 310 (6th

Cir. 2023) (“In most cases,” when “a plaintiff … show[s] some moderate time

gap—say, a matter of months,” the Court’s “summary-judgment inquiry …

asks whether the plaintiff has offered enough ‘other evidence of retaliatory

conduct’ apart from this temporal proximity”). And “three months … between”

protected activity and an adverse action is “a firm indicator of a lack of a causal

link.” Boshaw, 32 F.4th at 605.

Another line of authority, however, holds that being fired “just over

three months after … fil[ing] a discrimination charge with the employment

commission” is “enough to constitute sufficient evidence of a causal connection”

to demonstrate a prima facie case. Singfield v. Akron Metro. Hous. Auth., 389

F.3d 555, 563 (6th Cir. 2004).12

Here, Kachaluba learned of Hailes’s HPP complaint in mid-June and

issued Hailes’s performance evaluation in November. Under either camp, a

five-month gap is, without more, too long to allow the Court to infer causation.

12 Bryson v. Regis Corp., 498 F.3d 561 (6th Cir. 2007) does not cleanly fit

in either camp. Although there was a three-month gap between Bryson’s

protected activity—taking FMLA leave—and her termination, evidence

revealed that Bryson’s supervisor determined early in Bryson’s leave period to

“make sure” that “[Bryson] would not be able to keep her job when she came

back.” Id. at 565, 571.

Hailes, however, argues that the time period between her complaint and

the VA’s adverse action is actually three months because the evaluation that

Kachaluba issued in November was for the fiscal year that ended on September

30, 2021. Doc. 56, at 5. According to Hailes, Kachaluba must have “submitted

[Hailes’s] lowered performance rating to [human resources] at the end of

September 2021.” Id. But Hailes provides no basis to support her suggestion

that Kachaluba submitted the application at the end of September. Rather, the

idea that Kachaluba prepared and submitted Hailes’s evaluation as soon as

the rating year ended rests on speculation. And even if the Court indulged the

speculation that Kachaluba submitted the evaluation at the end of the day on

September 30, that day was still over three months after Kachaluba learned of

Hailes’s complaint. And three-and-a-half months is too long to infer

causation.13 See Boshaw, 32 F.4th at 605; cf. Singfield, 389 F.3d at 563 (finding

evidence of causation with a temporal gap of “just over three months”).

Hailes has not submitted evidence that would allow a factfinder to

conclude or infer that her complaints were the but-for cause of her performance

evaluation, the later email, or the hallway incident.

For all the reasons stated above, even if Hailes had presented evidence

to support the third element of her claim—showing an adverse employment

13 Dr. Navas’s email and the hallway incident both followed Kachaluba’s

issuance of Hailes’s review. Necessarily, therefore, the temporal-connection

analysis dooms Hailes’s assertion that these events were caused by Hailes’s

HPP complaint.

action or severe or pervasive retaliatory harassment—the VA is entitled to

summary judgment on the issue of causation as to Hailes’s claims for monetary

relief.

3.2.5 The VA offers a legitimate, nondiscriminatory basis for

Kachaluba’s actions and Hailes has presented nothing to show

that the reason for Kachaluba’s actions was a pretext

If a plaintiff without direct evidence makes out a prima facie case of

retaliation, “the burden shifts to the defendant to present a legitimate,

nonpretextual reason for the action.” Jones v. St. Jude Med. S.C., Inc., 504 F.

App’x 473, 476–77 (6th Cir. 2012); see Bashaw v. Majestic Care of Whitehall,

LLC, 130 F.4th 542, 548 (6th Cir. 2025). “If the defendant comes forward with

a qualifying reason,” the burden returns to the plaintiff, who “must then

demonstrate that the proffered reason was a pretext, and not the real reason

for the employment decision.” Jones, 504 F. App’x at 477. On summary

judgment, a plaintiff’s burden on pretext is to “‘produce enough evidence ... to

rebut, but not disprove, the defendant’s proffered rationale.’” Id. (quoting Blair

v. Henry Filters, Inc., 505 F.3d 517, 532 (6th Cir. 2007)); see Bashaw, 130 F.4th

at 548 (“At summary judgment, she must produce evidence that would allow a

jury to reject her employer’s stated reasons and infer that the real reason was

retaliation.”). To do that, a plaintiff can show that: “‘(1) … the proffered reasons

had no basis in fact, (2) … the proffered reasons did not actually motivate the

employer’s action, or (3) [the proffered reason was] insufficient to motivate the

employer’s action.’” Bashaw, 130 F.4th at 548 (emphasis added) (quoting

Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 350–51 (6th Cir. 2021)).

Importantly, “[e]ven if … some [of the proffered] reasons [are] pretextual, if ‘at

least one other is not, the defendant employer is … entitled to summary

judgment.’” Id. at 548 (quoting Jones, 504 F. App’x at 477–78). “In other words,

if the employer proffers a single independent nondiscriminatory reason for its

conduct, that can defeat a retaliation claim.” Id. at 549.

In trying to carry her burden on pretext, a “plaintiff must produce

sufficient evidence from which the jury could ‘reasonably reject [the

defendants’] explanation’ and infer that the defendants ‘intentionally

discriminated’ against” her. Braithwaite v. Timken Co., 258 F.3d 488, 493 (6th

Cir. 2001) (citation omitted). She “must [therefore] allege more than a dispute

over the facts upon which” the allegedly adverse action “was based.” Id. at 494.

Rather, the plaintiff must present evidence showing “that the employer did not

‘honestly believe’ in the proffered non-discriminatory reason for its adverse

employment action.” Id. When evaluating an employer’s purported “honest

belief,” a court asks “whether the employer can establish its ‘reasonable

reliance’ on the particularized facts that were before it at the time the decision

was made.” Id. (citation omitted). And that question turns on “‘whether the

employer made a reasonably informed and considered decision before taking

an adverse employment action.’” Id. (quoting Smith v. Chrysler Corp., 155 F.3d

799, 807 (6th Cir. 1998)). “If there is no material dispute that the employer

made a ‘reasonably informed and considered decision’ that demonstrates an

‘honest belief’ in the proffered reason for the adverse employment action, the

case should be dismissed since no reasonable juror could find that the

employer’s adverse employment action was pretextual.” Id.

Assuming that Hailes has made out prima facie case of retaliation, the

VA argues that Kachaluba had a legitimate reason for her actions: Hailes’s

admitted refusal to follow Kachaluba’s orders. Doc. 54-1, at 20. As the VA

implies, insubordination is a legitimate, nondiscriminatory reason for an

employer’s actions. See Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d

634, 651 (6th Cir. 2015); Parries v. Makino, Inc., 148 F. App’x 291, 302 (6th

Cir. 2005); Suteerachanon v. McDonald’s Restaurants of Maryland, Inc., No.

13-2889, 2014 WL 6674587, at *3 (D. Md. Nov. 24, 2014) (involving a plaintiff

who “refus[ed] to follow a ‘wrong order’ of her supervisor”), aff’d, 607 F. App’x

339 (4th Cir. 2015).

Because the VA has offered a legitimate, nondiscriminatory motive for

Kachaluba’s actions, the burden shifts to Hailes to show pretext. Hailes,

however, does not claim that (1) her insubordination had no basis in fact, (2)

her insubordination did not, at least in part, motivate Kachaluba, or (3) her

insubordination was not enough to motivate Kachaluba. See Doc. 56, at 10; see

also Bashaw, 130 F.4th at 548 (explaining how a plaintiff can rebut an

employer’s stated basis for acting and show pretext). Rather, she points to her

own testimony that “her refusal to follow directions” was part of Kachaluba’s

motivation. Doc. 56, at 10. But because “a single independent

nondiscriminatory reason for [an employer’s] conduct, … can defeat a

retaliation claim,” Bashaw, 130 F.4th at 549, Hailes’s argument in this regard

merely serves to show that she cannot show pretext, see id. at 548 (“Even if …

some [of the proffered] reasons [are] pretextual, if ‘at least one other is not, the

defendant employer is … entitled to summary judgment.’”) (citation omitted).

Indeed, the problem for Hailes is that there is no dispute that Kachaluba

actually believed that Hailes was insubordinate and accounted for that

believed insubordination when rating Hailes.14 In fact, Hailes repeatedly

provided the best evidence that the VA’s stated rational for her rating—

insubordination in refusing to follow Kachaluba’s instructions—was not a

pretext. Kachaluba issued Hailes a Report of Contact in June 2021 for being

insubordinate after multiple conversations about Hailes’s failure to follow

procedures. Doc. 52-4, at 2. Hailes later confirmed what Kachaluba reported.

Hailes testified that Kachaluba gave her a Report of Contact “for not doing it

the way [Kachaluba] verbally instructed [Hailes] to.” Doc. 53-1, at 118.

According to Hailes, she and Kachaluba “had multiple conversations … about

[Hailes’s] refusal to deviate from written [standard operating procedures]

based on [Kachaluba’s] instruction.” Id. at 117. Hailes also admitted that

Kachaluba came “to [Hailes] multiple times and t[old] [Hailes] not to do

something, or” that Kachaluba “want[ed] [Hailes] to do it like this. And

14 The parties’ pretext arguments focus on Hailes’s rating and ignore the

January 2022 hallway incident. But the Court’s analysis equally applies to that

incident.

multiple times [Hailes] did not follow her instructions because,” in Hailes view,

Kachaluba was “asking [Hailes] to break the law.” Id. (emphasis added); see id.

at 118 (“I just didn’t follow her commands to verbally deviate from” “the

procedure”). And, according to Hailes, Kachaluba used the resulting

disciplinary measures “to justify lowering [Hailes’s] performance.” Id. at 119.

Further, when Hailes contested her performance evaluation, she

pointed to instances in which she and Kachaluba disagreed about their

laboratory’s procedures. Doc. 52-7, at 4–5. Hailes added that “when [she]

[didn’t] follow [Kachaluba’s] verbal commands, [Kachaluba] add[ed] the

reports as errors to lower [Hailes’s] performance rating.” Id. at 5.

In short, Hailes’s own evidence shows that the reason for the VA’s action

was Hailes’s actual or perceived insubordination. Far from showing that

Kachaluba did not actually believe that Hailes was insubordinate, Hailes has

supported the VA’s position. See Doc. 56 at 10 (stating that alleged acts of

retaliation “were tied to … the filling of her HPP complaint and … her refusal

to follow instructions”) (bolding in original).

Hailes appears to believe that because she justifiably—in her view—

believed that Kachaluba’s orders were unlawful, she could not have been

insubordinate. Based on this premise, it appears that she posits that the VA’s

reason for Hailes’s rating was a pretext. But Hailes misses the point. It doesn’t

matter whether she is right about the lawfulness of Kachaluba’s orders. What

matters is whether Hailes has shown that Kachaluba didn’t actually believe

that Hailes was insubordinate. Given Hailes own testimony and the absence

of any contrary evidence, there is no evidentiary basis to conclude or infer that

Kachaluba did not honestly believe that Hailes was insubordinate.

Based on the premise that her allegedly lowered rating was tied to both

her HPP complaint and her insubordination, Hailes says that “a reasonable

jury could conclude that [the VA’s] explanations were not the real reasons,

were selectively enforced, or were insufficient to justify the challenged actions.”

Doc. 56, at 10. Other than saying it, however, Hailes offers no reason to believe

that a jury could reach these conclusions. In fact, Hailes’s own deposition

testimony showed that (1) her own insubordination was the real reason for the

VA’s actions; and (2) Hailes’s co-workers were not disciplined because, unlike

Hailes, they were not insubordinate. And Hailes offers no basis to conclude

that an employee’s refusal to follow instructions is not an appropriate basis to

discipline that employee. More importantly, Hailes’s concession that one

reason for her allegedly lowered rating was “her refusal to follow directions she

believed were improper and could potentially harm patients,” Doc. 56, at 10,

“defeat[s] [her] retaliation claim.” Bashaw, 130 F.4th at 548–49.

Because Hailes’s own testimony shows that at least one reason for the

VA’s actions was not a pretext, there is no genuine issue of material fact on

this issue. Hailes cannot prevail on her retaliation claim.

For all the reasons explained above, Hailes is not entitled to summary

judgment, and the VA is entitled to summary judgment. See Bashaw, 130 F.4th

at 548–49.

3.2.6 Hailes’s remaining arguments are misplaced

Hailes claims that a co-worker was promoted in August 2021, despite a

lack of relevant experience. Doc. 52, at 5. She also says that Kachaluba rated

this co-worker as exceptional in all five rating elements and outstanding

overall. Id. at 6. But Hailes doesn’t explain what her co-worker’s promotion

and rating have to do with Hailes’s retaliation claim. And she doesn’t cite

anything to support these assertions. So the Court does not consider them.

Hailes also faults the VA for not providing her with a free copy of her

deposition transcript. Doc. 56, at 7. But she points to nothing that would have

required the VA to do that. Indeed, “a mound of cases” stand for the proposition

that Hailes is not entitled to a free copy of her deposition transcript. Rodriquez

v. Se. Pennsylvania Transp. Auth., No. 20-cv-3262, 2022 WL 17371059, at *1

n.2 (E.D. Pa. July 19, 2022) (citing cases); see also Johnson v. Elum, No. 4:20-

cv-12422, 2022 WL 1205005, at *2 (E.D. Mich. Apr. 22, 2022); Fed. R. Civ. P.

30(f)(3) (“When paid reasonable charges, the [deposition] officer must furnish a

copy of the transcript or recording to any party or the deponent.”) (emphasis

added). Hailes also omits that the VA filed Hailes’s deposition on the docket on

the same day that it moved for summary judgment. See Docs. 53, 53-1.

4. Conclusion

The Court grants VA’s motion for summary judgment, Doc. 54, and

denies Hailes’s motion, Doc. 52.

It is so ordered.

Dated: August 28, 2026

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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