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