Anita Loyd v. Saint Joseph Mercy Oakland

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0232p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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ANITA LOYD, ┐

Plaintiff-Appellant, │

│

│ No. 13-2335

v. │

>

│

SAINT JOSEPH MERCY OAKLAND et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Flint.

No. 4:12-cv-12567—Gershwin A. Drain, District Judge.

Argued: July 29, 2014

Decided and Filed: September 10, 2014

Before: BOGGS, CLAY, and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Joseph T. Ozormoor, Grosse Pointe Farms, Michigan, for Appellant. Daniel J.

Bretz, CLARK HILL PLC, Detroit, Michigan, for Appellees. ON BRIEF: Joseph T.

Ozormoor, Grosse Pointe Farms, Michigan, for Appellant. Daniel J. Bretz, Anne-Marie

Vercruysse Welch, CLARK HILL PLC, Detroit, Michigan, for Appellees.

GILMAN, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J.

(pp. 15–23), delivered a separate dissenting opinion.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Anita Loyd, an African-American woman,

worked as a security guard for 25 years at Saint Joseph Mercy Oakland/Trinity Health Hospital

1

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in Pontiac, Michigan before being terminated in July 2011 following an incident with an agitated

and combative patient. Loyd was 52 years old at the time of her termination. She alleges that

the hospital fired her because of her age, race, and sex, whereas the hospital contends that she

was discharged for a major violation of hospital policy. The district court granted the hospital’s

motion for summary judgment on all of Loyd’s claims. For the reasons set forth below, we

AFFIRM the judgment of the district court.

I. BACKGROUND

Although Loyd had been employed as a security guard at the hospital since 1986, her

disciplinary record was not unblemished. In 2001, for example, Loyd received a written warning

for failing to help restrain a patient under circumstances very similar to the 2011 incident that led

to her discharge; i.e., she questioned the authority of the medical staff to have the patient

restrained. The record also shows that Loyd received a written warning in 2004 for refusing to

work overtime hours.

Two more incidents involving Loyd occurred in 2010. In the first incident, Loyd left

work due to illness without first obtaining permission from her supervisor, which constitutes a

minor infraction under the hospital’s discipline policy. The second incident involved Loyd

abandoning her post without excuse or permission, which is a major infraction under the

hospital’s policy. In that incident, Loyd was found sitting on the porch of a house near the

hospital while on duty. Loyd admitted to the underlying conduct, but claimed that her intent was

to connect with the surrounding community. The hospital placed Loyd on final-written-warning

status following this second 2010 incident.

Loyd and the hospital disagree on the details of the June 2011 incident that led to her

termination. According to the hospital, Loyd was dispatched on June 16, 2011 to a room

containing a female psychiatric patient. The patient was agitated and combative, and the medical

staff needed help in restraining her. But instead of helping to restrain the patient, Loyd asked the

patient why she was in the hospital. Loyd told the patient that she could leave the hospital if she

had been admitted for a drug-related or alcohol-related (as opposed to a psychiatric) reason.

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 3

Mark Bott, one of the nurses on duty, then began to argue with Loyd. Loyd maintained

that drug-related and alcohol-related admissions were different from psychiatric-based

admissions. She also demanded to see the patient’s admissions paperwork in order to determine

whether the patient had been “petitioned and certified” (a hospital term for “involuntarily

admitted”). Loyd’s actions exacerbated the patient’s condition to the point where the patient

tried to pull an IV out of her own arm. Two other security guards, Pete Kowalak and David

Sikorski, eventually succeeded in restraining the patient. Loyd made no attempt to help Kowalak

or Sikorski.

Although Loyd concedes that the June 16, 2011 incident occurred, she disputes the

hospital’s version regarding a number of the details. Loyd admits that she talked to the patient

and told the patient that she (Loyd) would find out from the medical staff whether the patient

could leave. She further admits that she walked out of the patient’s room and asked a nurse,

Sonya Moak, whether the patient had been petitioned and certified. Loyd denies, however, that

she failed to help restrain the patient. She also denies that the patient became more combative as

a result of Loyd’s actions.

Following the incident, the hospital began an internal investigation. Moak drafted and

filed an incident report with the hospital’s Potential Error Event Reporting System (PEERS),

which is a part of the hospital’s quality-assurance review system. Ryan Hernandez, the

hospital’s human-resources representative, then took statements from witnesses. Two of the

witness statements were provided by Kowalak and Sikorski. Kowalak’s statement, dated June

20, 2011, explained that

[w]hen I arrived on this call I observed that . . . Loyd was discussing the patient’s

situation. She stated that there was no petition ordered. I also heard . . . Loyd

state to the E.R. staff that coming to the ER for drugs or phsych [sic] problems

were two different things[,] at this time writer [Kowalak] had stepped out of the

room.

Sikorski’s statement, dated June 17, 2011, recounted further details:

Upon my arrival to E.R. 19, Anita Loyd was already in the room, talking with the

patient. Also in the room were R.N. Mark Bott and one other person whom I

don't know. At one point I overheard Loyd tell the patient that she did not have to

stay if she did not want to. Loyd went on to ask the patient, “What you in here

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 4

for?” The patient replied that she “had a problem with drugs.” Loyd then went

and made a statement, “Drugs and alcohol is different than psych.” “You can't

keep her here, she can sign herself out.” Bott was obviously agitated by these

remarks and told Loyd, “You can't tell her that.” “She has to stay.” “You have

no business talking to her.” “She has a petition against her.” The patient then

demanded to see the petition. R.N. Moak was now standing at the room door and

said to the patient, “Let me get it.” Moak left the area and came back with the

patients [sic] chart. Moak did not see the petition on the chart. Moak then got on

the phone and asked someone if the patient was petitioned. Moak hung up the

phone and stated that the social worker had signed a petition and that the patient

was “unable” to leave. The patient then became upset and stated that she was

leaving. The patient then grabbed her I.V. and tried to pull it out of her hand.

Bott then grabbed the patient and prevented her from pulling out the I.V. Bott

pushed the patient down onto the bed and started to put on the restraints. At this

time, Kowalak and I assisted Bott in restraining the patient. Loyd did not assist in

the restraint. After the patient was restrained, Kowalak and I left the room. Loyd

stayed in the room with the patient.

Hernandez also obtained statements from Bott and Moak about the incident. Both

statements confirmed that Loyd had questioned whether it was proper to restrain the patient.

Bott, however, did not sign his statement until August 2011. The hospital claims that “because

Bott works midnights and Hernandez worked days, Hernandez was unable to obtain Bott’s

signature . . . until weeks later.”

Moak’s statement is also dated in August 2011. The hospital states that Hernandez

interviewed Moak twice (once immediately after the incident and once in preparation for an

August 2011 grievance hearing), but that Hernandez recorded only the date of the later interview.

Hernandez eventually prepared a summary of the internal investigation that contained

witness statements from Bott, Kowalak, Loyd, Moak, and Sikorski. The summary also contained

a five-line excerpt from the PEERS report that Moak had drafted. That excerpt stated the

following:

Nurse requested Security to restrain a “Pit & Certed” patient. Patient becoming

agitated and verbally threatening (threatening to leave and threatening to stab

staff). Anita tried to deescalate patient. Patient wanted to see petition and stated

she came here to stop using drugs. Anita told patient that she could leave if she

wasn’t suicidal and stated to Nurse that patients that are here for drugs and

alcohol are not Psych patients.

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 5

Steve Kazimer and Greg Williams, who were Loyd’s supervisors, decided to terminate

Loyd’s employment on July 1, 2011 after reviewing the results of the internal investigation. The

discharge notice explained that Loyd had

acted outside the scope of [her] duties and advised a patient incorrectly about the

patient’s ability to leave the premises. This behavior exacerbated the patient’s

behavior in a negative manner that resulted in the patient attempting to pull I.V.

out & required [hospital] staff to place the patient in restraints. This is a major

infraction [and a] violation of the employee discipline policy. Plaintiff is

currently on a Final Written Warning therefore this infraction results in discharge

from employment effective today 7/1/11.

Loyd subsequently filed a union grievance challenging her termination. The hospital

denied the grievance at Step 3 of the grievance-adjustment process mandated by the Collective

Bargaining Agreement (CBA) between the hospital and Loyd’s union, and upheld Loyd’s

termination. Following this action by the hospital, the union notified the hospital in writing that

it was declining to arbitrate the grievance because “the Union decided[,] based upon the facts and

evaluation of the likelihood of success on the merits of the case, that it was unlikely that . . .

arbitration would result in the reinstatement of Ms. Loyd.”

The hospital posted an advertisement for Loyd’s position on July 21, 2011. Although the

position was originally offered to a Caucasian man, the man declined the hospital’s offer. The

hospital then hired a 39-year-old African-American woman to fill Loyd’s position in November

2011.

Loyd, for her part, filed a charge of discrimination with the Equal Employment

Opportunity Commission and the Michigan Department of Civil Rights in September 2011. In

her charge, Loyd alleged that the hospital had terminated her employment because of her age,

race, and sex. The EEOC dismissed the charge and issued Loyd a right-to-sue letter in March

2012. Loyd then filed suit against the hospital and five hospital employees (Bott, Hernandez,

Kazimer, Sikorski, and Williams) in June 2012.

During the course of discovery, Loyd filed a motion to compel the production of certain

evidence. One piece of evidence sought in the motion was the PEERS report. Another was a

surveillance video that allegedly contained a recording of the area outside the psychiatric

patient’s room on June 16, 2011. Loyd argued to the district court that both pieces of evidence

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 6

were “crucial to show that the reasons stated for her termination . . . had no basis in fact and were

fabricated.”

In its response to Loyd’s motion to compel, the hospital contended that the PEERS report

was privileged (and therefore not discoverable) under Michigan law. Moreover, the hospital

explained that the surveillance video had been overwritten 30 days after the incident occurred

pursuant to the hospital’s routine practice of doing so after 30 days.

Loyd responded that the hospital had waived any privilege by including the five-line

excerpt of the PEERS report in materials that the hospital had filed with the EEOC (the five-line

excerpt appeared in Hernandez’s summary of the internal investigation). She also urged the

district court to impose sanctions against the hospital for its failure to preserve the surveillance

video. Loyd sought in particular a sanction that would exclude any testimony from the hospital’s

witnesses about the incident.

Following a hearing on Loyd’s motion to compel, the district court denied the motion in

March 2013. The court concluded that (1) the PEERS report was privileged under Michigan

law, and (2) the hospital had not waived the privilege by filing the five-line excerpt of the

PEERS report with the EEOC. It also declined to issue sanctions against the hospital, explaining

that Loyd “may [instead] be entitled to a jury instruction that the jury may draw an inference

adverse to the culpable party from the absence of evidence.”

The hospital then filed a motion for summary judgment on all of Loyd’s claims. After a

hearing, the district court granted the motion and entered judgment in favor of the hospital,

holding that Loyd could not establish a prima facie case of age, race, or sex discrimination

because Loyd could not demonstrate that she was qualified for the security-guard position. It

based this determination on the conclusion that Loyd had failed to perform her job at a level that

met the hospital’s legitimate expectations.

Moreover, even if Loyd could establish a prima facie case of discrimination, the district

court held that Loyd could not show that the hospital’s proffered reason for firing her was a

pretext intended to disguise unlawful discrimination. The district court also dismissed Loyd’s

Michigan common-law claims (intentional interference with a contractual relationship and

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 7

intentional infliction of emotional distress) on the ground that both claims were preempted by the

Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), which “‘preempts state law

rules that substantially implicate the meaning of the collective bargaining agreement terms.’”

Loyd v. St. Joseph Mercy Oakland/Trinity Health SJMO Pub. Safety Dep’t, No. 12-12567, 2013

WL 4805751, at *7 (E.D. Mich. Sept. 9, 2013) (quoting DeCoe v. Gen. Motors Corp., 32 F.3d

212, 216 (6th Cir. 1994)).

This timely appeal by Loyd followed. In her appeal, Loyd contends that the district court

committed reversible error in denying her motion to compel and in dismissing her claims at the

summary-judgment stage of the case.

II. ANALYSIS

A. Standard of review

We review a district court’s discovery-related rulings under the highly deferential

abuse-of-discretion standard. B & H Med., LLC v. ABP Admin., Inc., 526 F.3d 257, 268 (6th

Cir. 2008). An abuse of discretion will not be found unless (1) the district court’s decision is

predicated on an erroneous conclusion of law, (2) the district court’s factual findings are clearly

in error, or (3) the district court’s decision is, when taken as a whole, “clearly unreasonable,

arbitrary or fanciful.” Toth v. Grand Trunk R.R., 306 F.3d 335, 343 (6th Cir. 2002) (internal

quotation marks omitted).

In contrast, we review de novo a district court’s grant of summary judgment. Kalich

v. AT&T Mobility, LLC, 679 F.3d 464, 469 (6th Cir. 2012). Summary judgment is appropriate if

the record, when viewed in the light most favorable to the nonmovant, reveals that no genuine

dispute of material fact exists and that the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). A genuine dispute of material facts exists if “there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). In reviewing a grant of summary judgment, we accept all

of the nonmovant’s evidence as true and draw all reasonable inferences in the nonmovant’s

favor. Id. at 255.

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B. The district court did not err in denying Loyd’s motion to compel and her request

for sanctions

Loyd first attacks the district court’s denial of her motion to compel and her request that

the hospital be sanctioned for its alleged discovery violations. We discern no error in the district

court’s discovery order. Although Loyd argues that the PEERS report is not privileged under

Michigan law because the privilege does not extend to reports involving the actions of hospital

security guards, this argument has no merit. Michigan courts have construed the

hospital-peer-review privilege (which is codified at M.C.L. § 333.21515) to encompass reports

involving staff members who are not physicians or nurses. See Ligouri v. Wyandotte Hosp. &

Med. Ctr., 655 N.W.2d 592, 594–95 (Mich. Ct. App. 2002) (analyzing the statute and holding

that peer-review reports discussing the alleged negligence of an unknown staff member were

privileged in a case involving a patient who tripped and fell on a fan cord).

Nor did the district court commit reversible error in holding that the hospital had not

waived the privilege. Although a party may not use an applicable privilege as both a sword and

a shield, cf. Ross v. City of Memphis, 423 F.3d 596, 604 (6th Cir. 2005) (involving the attorney-

client privilege), Loyd has not shown that she suffered any prejudice as a result of the inclusion

of the short excerpt. The PEERS summary included in Hernandez’s report revealed nothing

more than the information contained in the witness statements. Accordingly, her argument

regarding the hospital’s alleged waiver of its privilege fails because the excerpt’s inclusion did

not harm Loyd’s case in any material way.

Finally, the district court did not err in declining to impose the sanctions urged by Loyd

for the hospital’s failure to preserve the surveillance video. Loyd concedes in her brief that the

district court was not required to exclude testimony from the hospital’s witnesses (which is what

she asked the district court to do) even if the court believed that sanctions were warranted. And

the district court did not reject Loyd’s sanctions argument outright. It instead explained that

Loyd might be entitled to an adverse-inference jury instruction at trial. Our caselaw gives

district courts wide latitude to fashion appropriate remedies for discovery violations, Bentkowski

v. Scene Magazine, 637 F.3d 689, 697 (6th Cir. 2011), and the district court did not abuse that

discretion here by effectively taking the adverse-inference-instruction issue under advisement.

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 9

C. The district court did not err in granting summary judgment on Loyd’s race- and

sex-discrimination claims

We now turn to the district court’s grant of summary judgment on Loyd’s race- and

sex-discrimination claims. Because Loyd offered only circumstantial evidence of discrimination

at the district-court level, the familiar McDonnell Douglas burden—shifting framework governs

Loyd’s federal and state-law claims of race and sex discrimination. See Wright v. Murray

Guard, Inc., 455 F.3d 702, 706–07 (6th Cir. 2006) (applying the burden-shifting framework to

Title VII race- and sex-discrimination claims); Hein v. All Am. Plywood Co., 232 F.3d 482, 488

(6th Cir. 2000) (holding that the framework applies to claims under Michigan’s Elliott-Larsen

Civil Rights Act (ELCRA)).

Loyd has the burden of establishing a prima facie case of discrimination under the

burden-shifting framework. Wright, 455 F.3d at 707. To do so, she must show that (1) she is a

member of a protected class, (2) she suffered an adverse employment action, (3) she was

qualified for the position, and (4) she was replaced by someone outside the protected class or

treated differently from similarly situated, non-protected employees. Id.

The hospital does not dispute that Loyd established the first two elements of a prima facie

case of race and sex discrimination. We will defer any discussion of the third element (see

below) because the fourth element is dispositive. With regard to this fourth element, the district

court noted in its summary-judgment order that Loyd had failed to put forward any evidence that

she was treated differently or less favorably than similarly situated hospital employees outside of

the protected classes. Furthermore, the record shows that Loyd was replaced by an African-

American woman. Loyd thus failed to establish a prima facie case of either race or sex

discrimination.

D. The district court did not err in granting summary judgment on Loyd’s age-

discrimination claims

Turning now to Loyd’s claims of age discrimination under the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621, and ELCRA, Mich. Comp. Laws Ann. § 37.2101,

the district court granted summary judgment on those claims for two reasons. The district court

first held that Loyd could not establish that she was qualified for the security-guard position,

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 10

which was fatal to her prima facie case. Second, the district court concluded in the alternative

that Loyd could not show that the hospital’s proffered reason for terminating her employment

was pretextual. The district court’s first holding was erroneous, but its alternative holding was

sound.

Under the McDonnell Douglas burden-shifting framework that governs

age-discrimination claims, Geiger v. Tower Automotive, 579 F.3d 614, 622 (6th Cir. 2009), the

requirement that a plaintiff establish a prima facie case of age discrimination is not intended to

be an onerous one. Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000)

(characterizing the prima facie requirement as “not onerous”). Once a plaintiff has established a

prima facie case of age discrimination, the burden shifts to the defendant employer to come

forward with a legitimate, nondiscriminatory reason for the adverse employment action. Geiger,

579 F.3d at 626. The plaintiff then bears the burden of demonstrating that the proffered reason

was in fact a pretext designed to conceal unlawful discrimination. Pretext can be shown by

offering evidence that (1) the employer’s stated reason had no basis in fact, (2) the stated reason

did not actually motivate the employer, or (3) the stated reason was insufficient to warrant the

adverse employment action. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 576 (6th

Cir. 2003) (en banc).

The district court’s error in analyzing Loyd’s prima facie case of age discrimination

stemmed from the court’s conflation of the qualification prong with the hospital’s proffered

reason for terminating Loyd’s employment. We have repeatedly cautioned district courts against

“consider[ing] the employer’s alleged nondiscriminatory reason when analyzing the prima facie

case.” Id. at 574. Moreover, a plaintiff can satisfy the qualification prong by showing that she

performed at a level that generally met her employer’s objective minimum qualifications. Id. at

575–76.

The district court in this case relied too heavily on the incident that caused Loyd’s

termination in evaluating the qualification prong. Loyd had worked as a security guard at the

hospital for 25 years before she was terminated in June 2011. This is compelling evidence that

Loyd met the hospital’s objective minimum qualifications at the time of her termination,

notwithstanding her previous negative performance reviews. See id. at 576 (explaining that the

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inquiry as to whether a plaintiff was qualified for a position “should focus on criteria such as the

plaintiff’s education, experience in the relevant industry, and demonstrated possession of the

required general skills”). The district court erred by focusing on the hospital’s proffered reason

for terminating Loyd rather than on Loyd’s objective qualifications for the security—guard

position in evaluating her prima facie case.

Nevertheless, the district court did not err in granting summary judgment on Loyd’s

age-discrimination claims. The court held in the alternative that Loyd could not demonstrate that

the hospital’s stated reason for firing her was pretextual. In particular, the court relied on the

“honest-belief rule” in so holding. As found by the court, “the evidence shows that Defendant

terminated Plaintiff based on its honestly held belief, based on particularized facts, that she

committed a major infraction while on final warning.” Loyd v. St. Joseph Mercy Oakland/Trinity

Health SJMO Pub. Safety Dep’t, No. 12-12567, 2013 WL 4805751, at *6 (E.D. Mich. Sept. 9,

2013).

The honest-belief rule provides that an employer is entitled to “summary judgment on

pretext even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless.” Chen

v. Dow Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009) (internal quotation marks omitted). An

employer’s pre-termination investigation need not be perfect in order to pass muster under the

rule. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (holding that an

employer need not demonstrate that its investigation was “optimal or that it left no stone

unturned”). The key inquiry is instead “whether the employer made a reasonably informed and

considered decision before taking an adverse employment action.” Id. (internal quotation marks

omitted). And to rebut an employer’s invocation of the rule, the plaintiff must offer some

evidence of “an error on the part of the employer that is too obvious to be unintentional.” Id. at

286 (internal quotation marks omitted).

Loyd argues that the hospital’s proffered reason for firing her has no basis in fact. She

notes, among other things, that two of the four witness statements taken in this case were not

available to the hospital when it made its decision to terminate Loyd’s employment on July 1,

2011. But even if we assume that Loyd’s assertion is true, the two witness statements (Kowalak

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and Sikorski) that indisputably were available to the hospital in June 2011 show that Loyd acted

in an insubordinate manner.

Kowalak’s statement, for example, reported that “Loyd state[d] to the E.R. staff that

coming to the ER for drugs or phsych [sic] problems were two different things.” This statement

by Loyd violated the hospital’s June 2010 directive that security guards “shall expect that

medical personnel have made an assessment of the situation and adhere[d] to restrain[t] protocols

prior to calling the officer.” Loyd has no formal medical training and it was not her job to

question the reasons why a patient has been admitted to the hospital.

Similarly, Sikorski recounted that Loyd stated in the patient’s presence that “You can’t

keep her here, she can sign herself out.” This is plainly insubordinate behavior by Loyd.

Insubordination, moreover, is a major infraction under the hospital’s discipline policy

irrespective of whether the insubordination poses an actual or potential threat of harm to the staff

or the patient.

Loyd argues that we should view the discharge notice with skepticism. She specifically

contends that an open question exists as to whether her actions actually exacerbated the

psychiatric patient’s condition. But the answer to this question is ultimately irrelevant to the

honest-belief analysis. See Chen, 580 F.3d at 401 (holding that an employer is entitled to

summary judgment under the honest-belief rule “even if its conclusion is later shown to be

mistaken”). The contemporaneous witness statements from Kowalak and Sikorski corroborate

the substance of the discharge notice. And the hospital was well within its rights to fire Loyd

given that (1) she was on final-written-warning status in June 2011, and (2) she had committed a

major infraction insofar as she failed to abide by the hospital’s directive that security guards

“shall expect that medical personnel have made an assessment of the situation and adhere[d] to

restrain[t] protocols prior to calling the officer.”

In sum, the hospital took witness statements and made a reasonable assessment of the

available evidence before terminating Loyd. The law does not require the hospital to do

anything more. See Seeger, 681 F.3d at 285 (stating the rule than an employer need not prove

“that it left no stone unturned”). To require otherwise would unduly frustrate an employer’s

ability to terminate insubordinate employees for legitimate, nondiscriminatory reasons.

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 13

Nor has Loyd offered any evidence of “an error on the part of the [hospital] that is too

obvious to be unintentional.” See id. at 286 (internal quotation marks omitted). The evidence in

fact demonstrates just the opposite because Loyd had already received a written warning

following a similar incident in May 2001 and was on final-written-warning status for a major

infraction in 2010. Loyd has simply offered no evidence to rebut the hospital’s honestly held

belief that Loyd committed a major infraction on June 16, 2011, and this lack of evidence dooms

Loyd’s age-discrimination claims.

E. The district court did not err in granting summary judgment on the Michigan

common-law claims

Finally, Loyd argues that her Michigan common-law claims of intentional interference

with a contractual relationship and intentional infliction of emotional distress should have been

submitted to a jury. The district court granted summary judgment on both claims, holding that

they were preempted by the LMRA.

Section 301 of the LMRA preempts “state law-based actions [that are] inextricably

intertwined with consideration of the terms” of a CBA. Mattis v. Massman, 355 F.3d 902, 905

(6th Cir. 2004) (internal quotation marks omitted). Preemption under § 301 of the LMRA

applies not only to contract-based claims, but also to state-law tort claims. Id. To decide

whether a state-law claim is preempted by the LMRA, we perform a two-step inquiry. The first

step requires us to determine “whether resolving the state-law claim would require interpretation

of the terms” of the CBA. Id. at 906. If interpretation of the CBA would be required, then the

state-law claim is preempted and the inquiry is at an end. Id. The second step involves

ascertaining “whether the rights claimed by the plaintiff were created by the [CBA], or instead

by state law.” Id. If the rights were created by the CBA, then the state-law claim is preempted.

Id.

Here, Loyd’s claim of intentional interference with a contractual relationship is based on

the hospital’s alleged failure to “honor and perform its contractual obligations” under the CBA.

This claim is accordingly preempted by § 301 of the LMRA because it asserts “a right created

not by state law,” but instead created by the CBA between the hospital and Loyd’s union. See

Mattis, 355 F.3d at 907 (holding that a Michigan common-law claim of tortious interference with

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 14

a business relationship was preempted by § 301). The district court, therefore, did not err in its

preemption analysis of the intentional-interference claim.

As for Loyd’s claim of intentional infliction of emotional distress, we need not wade into

the preemption question because run-of-the-mill claims of employment discrimination (as are

alleged here) do not constitute extreme and outrageous conduct sufficient to state a claim of

intentional infliction of emotional distress under Michigan law. See Hartleip v. McNeilab, Inc.,

83 F.3d 767, 777 (6th Cir. 1996) (holding that a wrongful discharge, without more, does not

provide a sufficient basis for such a tort claim under Michigan law). Because we may affirm a

grant of summary judgment on any ground supported by the record, Freeze v. City of Decherd,

753 F.3d 661, 664 (6th Cir. 2014), summary judgment on Loyd’s claim of intentional infliction

of emotional distress was proper.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 15

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DISSENT

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CLAY, Circuit Judge, dissenting. The district court wrongly decided this case, and the

majority adopts much of the lower court’s flawed reasoning. First, the manner by which the

district court handled discovery was legally inappropriate, affected Plaintiff’s ability to support

her claims, and constituted an abuse of discretion. Second, the district court improperly

determined that Plaintiff failed to establish a prima facie case of age discrimination. Finally, the

conclusion shared by the district court and the majority that Defendants honestly believed the

truth of the reasons proffered for Plaintiff’s termination cannot be sustained. Because I believe

Plaintiff has put forth sufficient evidence to establish genuine disputes of material fact in this

case, notwithstanding the erroneous discovery ruling, I respectfully dissent.

I. Admission of the PEERS Report Summary

Following Plaintiff’s termination, Defendant Ryan Hernandez created a summary of the

full PEERS report in response to inquiries from the Equal Employment Opportunity Commission

(“EEOC”) and the Michigan Department of Civil Rights (“MDCR”). Subsequently, Defendant

used this summary to defend itself against Plaintiff’s claims. As a result, Plaintiff moved to

compel discovery of the full PEERS report, which was denied by the district court.

“The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite

broad.” Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). Pursuant to Rule

26(b)(1), “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to

any party’s claim or defense . . . . For good cause, the court may order discovery of any matter

relevant to the subject matter involved in the action.” Fed. R. Civ. P. 26(b)(1). The district court

concluded that the report was not subject to these broad rules of discovery because the report is

protected by the Michigan peer review privilege. The court also rejected Plaintiff’s second

argument that Defendant waived the peer review privilege by including information from the

report in the case record and by providing excerpts of the report to the EEOC and MDCR. The

district court resolved this claim by stating that the Michigan courts have yet to rule on that issue

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 16

and because “unlike other statutorily-created privileges which contain an explicit waiver

provision, the peer review statutes contain no waiver provision.” (R. 24, Dist. Ct. Order,

PageID# 245 (citing Mich. Comp. Laws §§ 333.21517 and 339.1611).)

Even assuming, without deciding, that the district court properly invoked Michigan’s

peer review privilege, the district court nevertheless abused its discretion by excluding the full

PEERS report while admitting a summary of the report prepared by one of the defendants in this

case. Although the Michigan courts have not yet ruled on waiver or forfeiture of this particular

privilege, it is clear that a district court cannot allow one-sided discovery, and as the majority

notes, a “privilege cannot at once be used as a shield and a sword.” Ross v. City of Memphis,

423 F.3d 596, 604 (6th Cir. 2005) (internal quotation marks omitted). Generally, “litigants

cannot hide behind the privilege if they are relying upon privileged communications to make

their case.” In re Lott, 424 F.3d 446, 454 (6th Cir. 2005). See also United States v. Bilzerian,

926 F.2d 1285, 1292 (2d Cir. 1991) (“A defendant may not use the privilege to prejudice his

opponent’s case or to disclose some selected communications for self-serving purposes.”).

However, that is exactly what occurred in this case. Defendants waived the privilege “by

making tactical use of it in litigation.” Reitz v. City of Mt. Juliet, 680 F. Supp. 2d 888, 894 (M.D.

Tenn. 2010). Defendants used their self-produced summary of the PEERS report as evidence

against Plaintiff while also asserting that the full document, upon which the summary was

supposedly based, was privileged. It is impossible for this Court to determine whether that

summary provides an accurate rendering of the undisclosed full report. In fact, although the

majority contends that Plaintiff “has not shown that she suffered any prejudice as a result of the

inclusion of the short excerpt,” Maj. Op. at 8, there is no way we can determine the truth of the

contention that Plaintiff was not prejudiced by a summary that may well be incomplete and

misleading. In any event, it makes no sense to impose on Plaintiff the burden of demonstrating

how she might have been prejudiced by the summary of a potentially critical piece of evidence

which has been withheld from her. Indeed, Plaintiff need not point to particular information in

the summary that goes beyond that contained in the witness statements. Instead, it is fair to

assume that she was clearly prejudiced by the admission of a one-sided document drafted by

Defendants to defend themselves in preparation for administrative proceedings and a possible

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lawsuit. It is impossible to know whether the full PEERS report included statements favorable to

Plaintiff or whether Hernandez embellished the summary to provide support for the hospital’s

defense. By allowing admission of this summary, the court improperly assumed the truth and

essential completeness of its statements. The district court’s decision affected Plaintiff’s ability

to support her claims in this matter and gave Defendant an unfair and unwarranted advantage.

II. Truth of Defendant’s Proffered Reasons

The district court’s errors did not end with this discovery decision. Instead, the district

court continued down a path of inaccurate and conclusory analysis. First, as the majority

properly concludes, the district court erred in finding that Plaintiff failed to establish a genuine

dispute of fact on her prima facie case of age discrimination. Second, the district court erred in

finding that even if Plaintiff could establish a prima facie case, the reasons proffered by

Defendant for Plaintiff’s termination were not pretextual.

There is more than sufficient evidence in the record to call into question the truth of the

hospital’s proffered reasons for Plaintiff’s termination. Plaintiff’s discharge notice stated as

follows:

By performing in a manner that causes grave harm/potential grave harm to the

patient or SJMO. Ms. Loyd acted outside of her scope of duties and advised a

patient incorrectly about the patient’s ability to leave the premises. This behavior

exacerbated the patients [sic] behavior in a negative manner that resulted in the

patient attempting to pull I.V. out & required SJMO staff to place patient in

restraints. This is a major infraction violation of the employee discipline policy.

Ms. Loyd is currently on a final written warning therefore this infraction results in

discharge from employment effective today, 7/1/2011.

(R. 1-8. Discharge Notice, PageID# 46.) While it is clear that Plaintiff questioned a nurse’s

justification in restraining the patient and informed the patient that she might be able to leave the

hospital, there is a genuine dispute of material fact regarding whether Plaintiff’s conduct

“exacerbated the patient’s behavior in a negative manner that resulted in the patient attempting to

pull [her IV] out [and] required SJMO staff to place patient in restraints.” (Id.) It is also unclear

whether Plaintiff’s actions, when taken together, constitute a major infraction sufficient to justify

terminating an employee. Basically, some of the evidence in the record corroborates the

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 18

allegations in the discharge notice, while other statements in the record provide evidence to the

contrary.

As previously indicated, the PEERS report, which was filed by nurse Sonya Moak soon

after the incident occurred, is not available due to the district court’s denial of Plaintiff’s motion

to compel discovery. Therefore, all that is available is Defendants’ summary of the report, which

was drafted by Hernandez in response to the EEOC and MDCR inquiries. Even this one-sided

summary of the PEERS report may not contain sufficient information to substantiate the charges

against Plaintiff. The Hernandez summary states,

Nurse requested Security to retain a “Pit & Certed” patient. Patient becoming

agitated and verbally threatening (threatening to leave and threatening to stab

staff). Anita tried to de-escalate patient. Patient wanted to see petition and stated

she came here to stop using drugs. Anita told patient that she could leave if she

wasn’t suicidal and stated to Nurse that patients that are here for drugs and

alcohol are not Psych patients.

(R. 35-4, PEERS Report Summary, PageID# 721.) This summary lacks specific information

regarding whether Plaintiff’s conduct exacerbated the patient’s behavior, which was a critical

component of Plaintiff’s discharge notice, and without which, it is unclear that Plaintiff’s actions

warranted termination. The summary, even if accurate, which is dubious, fails to adequately

describe the events leading up to the incident in question or the surrounding context for

Plaintiff’s alleged behavior.

During a deposition, Moak wavered when responding to questions regarding Plaintiff’s

actions during the patient restraint incident. At one point, Moak indicated that Plaintiff “didn’t

try to interfere” with the patient and that Plaintiff “didn’t refuse” to participate in restraining the

patient. (R. 22-2, Moak Dep., PageID# 209.) Moments later, Moak testified that Plaintiff

refused to help in restraining the patient. Moak also stated during that same deposition that she

drafted the PEERS report because she did not believe Plaintiff’s behavior that night was

appropriate. However, she did not provide a detailed explanation of that allegedly inappropriate

behavior.

Statements from two of Plaintiff’s fellow public security officers are also included in the

record. On June 20, 2011, Officer Pete Kowalak stated that “[w]hen [he] arrived on this call . . .

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 19

Loyd was discussing the patient’s situation . . . . [He] also heard Ofc. Loyd state to the E.R. staff

that coming to the ER for drugs or phsych [sic] problems were two different things.” (R. 27-24,

Kowalak Statement, Page ID# 470.) Kowalak provided another statement on June 23, 2011,

indicating that after he heard Plaintiff’s discussion with the E.R. staff, he stepped out of the room

because “E.R. staff was not ready to restrain the patient yet and the patient was not acting

aggressive.” (R. 27-22, Loyd MAP, PageID# 465.) Officer David Sikorski and Nurse Mark Bott

also provided statements, Sikorski on June 17, 2011, and Bott on an unknown date, which were

intended to substantiate the employer’s version of events. However, also available in the record

is nurse Anna Novak’s deposition transcript. During her deposition, Novak indicated that she

did not observe Plaintiff acting in an inappropriate manner during the parts of the incident

involving the patient that she observed. She asserted that had she witnessed such misconduct,

she would have included that information in the progress report she drafted later that evening.

Furthermore, Novak clearly asserted during her deposition that the patient was already agitated

and had already attempted to take out her IV before any security officers arrived on the scene,

contradicting Kowalak’s statement that the patient was not yet acting aggressively when he

arrived in the room.

The record also contains Plaintiff’s deposition transcript. Although Plaintiff admits that

she inquired about the patient’s status before agreeing to apply restraints, she believes she acted

in a manner consistent with hospital policy, and she contests the truth of the other allegations

against her. In fact, she contests that she ever indicated that the patient could leave the hospital

and states that she only inquired about the patient’s status to help de-escalate the situation. She

states that she did, in fact, assist in restraining the patient once it became clear that a restraint was

needed.

Many of these statements obviously provide different versions of the incident in question.

Only two of the witnesses’ statements substantiate the reasons for Plaintiff’s termination as set

forth in the discharge notice, while some leave out critical facts and others provide evidence to

the contrary. Even the PEERS report summary drafted by one of the defendants in this case fails

to fully corroborate the reasons set forth in Plaintiff’s discharge notice. When considered

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 20

together, these statements establish a genuine dispute of material fact regarding whether the

hospital’s proffered nondiscriminatory reasons had any basis in fact.

III. Defendant’s Honest Belief

Defendants argue that even if Plaintiff can establish a genuine dispute of material fact

regarding pretext, they may still be entitled to summary judgment based on the “honest belief”

doctrine. As this Court has stated, “If the employer had an honest belief in the proffered basis

for the adverse employment action, and that belief arose from reasonable reliance on the

particularized facts before the employer when it made the decision, the asserted reason will not

be deemed pretextual even if it was erroneous.” Upshaw v. Ford Motor Co., 576 F.3d 576, 586

(6th Cir. 2009). “The key inquiry in assessing whether an employer holds such an honest belief

is whether the employer made a reasonably informed and considered decision before taking the

complained-of action.” Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 559 (6th Cir. 2009)

(internal quotation marks omitted). This Court “will not ‘blindly assume that an employer’s

description of its reasons is honest.’” Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir.

2006) (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)). Instead, the

employee is given the opportunity to “produce sufficient evidence to establish that the employer

failed to make a reasonably informed and considered decision before taking its adverse

employment action, thereby making its decisional process unworthy of credence[.]” Smith,

155 F.3d at 807–08 (internal quotation marks omitted).

In the instant case, the district court and now the majority improperly conclude that even

if Plaintiff could set forth a prima facie case of discrimination, she failed to establish a genuine

dispute of fact regarding whether Defendants honestly believed Plaintiff’s actions warranted

termination.

First, it is impossible for us to know what knowledge Defendant had at the time the

termination decision was made because the full PEERS report is not available to us. It is quite

possible that the full PEERS report contained statements favorable to Plaintiff. However,

because that report is unavailable, and we only have access to the self-serving summary prepared

by Defendants in response to the EEOC and MCDR inquiries, we cannot know what information

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 21

was available to Defendant at the time the decision to terminate Plaintiff’s employment was

made.

Even if we ignore this error by the district court in failing to order disclosure of the

PEERS report, there is sufficient evidence available in the record to establish a genuine dispute

of fact regarding Defendants’ purported “honest belief” at the time the termination decision was

made. As the majority acknowledges, it is not actually clear from the record that each of the four

statements considered by the district court was available to Defendants before Plaintiff was

terminated. Bott’s statement does not include a date, and Moak’s statement was clearly given to

Defendants on August 1, 2011, a month after Plaintiff was terminated. Therefore, this Court

may not consider that evidence when determining whether the honest belief rule applies in this

case.

The evidence that was clearly available to the hospital at the time of the adverse

employment action included the following: (1) the PEERS report, which is summarized above;

(2) the statement from Plaintiff admitting to some of the underlying conduct but denying that she

committed the more egregious conduct; (3) two statements from Officer Kowalak dated June

20 and 23, 2011, which only stated that Plaintiff was “discussing the patient’s situation,” that

Plaintiff “state[d] to the E.R. staff that coming to the ER for drugs or psych problems were two

different things,” and that “[i]t appeared that Mott was getting upset with Anita because she was

questioning the petition and weather [sic] or not the patient had the right to leave A.M.A.,” R.

27-22, Loyd MAP, PageID# 465; and (4) a statement from Officer Sikorski dated June 17, 2011,

which substantiates some of the conduct discussed in the discharge notice.

Had the statements and the remainder of the evidence available to the hospital told the

same story as the discharge papers, that Plaintiff’s actions exacerbated the psychiatric patient’s

condition and threatened everyone’s safety, as was suggested in her discharge papers, Defendant

might have honestly believed Plaintiff’s conduct warranted termination. However, in the instant

case, Defendant only conducted a brief investigation and obtained Plaintiff’s statement and two

witnesses’ statements, neither of which told the same story and only one of which corroborated

the allegations set forth in the discharge papers. Furthermore, the PEERS report summary,

which was also available at the time the termination decision was made, did not corroborate

No. 13-2335 Loyd v. Saint Joseph Mercy Oakland et al. Page 22

those allegations. This Court should expect that any reasonable employer, faced with this

minimal amount of evidence, would conduct further inquiries before proceeding with an adverse

employment action. Other witnesses were present during the incident who could have been

interviewed, and other records could have been consulted prior to Plaintiff’s termination.

Instead, Defendants jumped to terminate Plaintiff, claiming that her conduct caused the potential

for grave harm to the patient and hospital staff. Although this Court does not require that an

employer’s investigation be perfect, see Smith, 155 F.3d at 807, the circumstances of this case

leave one with serious doubts as to whether Defendant could have honestly believed that Plaintiff

“performe[d] in a manner that cause[d] grave harm/potential grave harm to the patient or

SJMO.” (R. 1-8, Discharge Notice, PageID# 46.)

The majority asserts that even if an “open question exists as to whether [Plaintiff’s]

actions actually exacerbated the psychiatric patient’s condition,” Maj. Op. at 12, her conduct

clearly constituted insubordination sufficient to warrant termination. By so doing, the majority

seems to assume that Plaintiff’s actions alone violated the hospital’s policy and therefore

constituted insubordination. There are two problems with this argument.

First, it does not appear that Defendants ever offered “insubordination” alone as the cause

of Petitioner’s termination. Instead, Defendants proffered reason for Plaintiff’s termination was

that she “perform[ed] in a manner that cause[d] grave harm/potential grave harm to the patient or

SJMO. Ms. Loyd acted outside of her scope of duties . . . [and that] behavior exacerbated the

patients [sic] behavior in a negative manner that resulted in the patient attempting to pull I.V. out

& required SJMO to place patient in restraints. This is a major infraction violation of the

employee discipline policy.” (R. 1-8, Discharge Notice, PageID# 46.) In fact, “insubordination”

and “performance that causes grave harm/potential grave harm to the patient or SJMO-MO” are

listed as separate major infractions in the hospital’s discipline policy. (R. 27-6, Employee

Discipline Policy, PageID# 390–391.) Because Plaintiff was not terminated for insubordination

alone, the majority’s assertion that Plaintiff’s conduct was sufficient for termination even absent

the escalation in the patient’s behavior does not hold water.

Second, it is not even clear that Plaintiff’s conduct constituted insubordination in this

case or that the employer reasonably believed that it did. The majority points to a hospital policy

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stating that security guards “shall expect that medical personnel have made an assessment of the

situation and adhere[d] to restraint protocols prior to calling the officer.” (R. 27-18, Department

Authority, PageID# 435.) It is not at all clear that Plaintiff violated the policy or that violation of

the policy constituted “insubordination” warranting termination. Although Plaintiff was on final-

written-warning status at the time this incident occurred, whether her conduct was accurately

described in the witness statements or constituted insubordination warranting her termination is a

question appropriately decided by a jury.

Although this Court “do[es] not require that the decisional process used by the employer

be optimal or that it left no stone unturned,” Smith, 155 F.3d at 807, there appears in this case to

be a genuine dispute of fact as to whether the hospital honestly believed Plaintiff committed the

conduct set forth in her discharge papers and whether her conduct was sufficient to constitute

insubordination. On summary judgment, the question is not “whether the court finds that [the

employer] made a reasonably informed and considered decision before terminating [the

employee]. The proper question is whether a reasonable jury could have concluded that [the

employer’s] investigation was unworthy of credence.” Seeger v. Cincinnati Bell Tel. Co.,

681 F.3d 274, 288 (6th Cir. 2012) (Tarnow, J., dissenting) (internal quotation marks omitted).

Based on the evidence as described above and the unavailability of the full PEERS report, which

the district court inappropriately refused to order disclosed, there exists a genuine dispute of

material fact regarding whether Defendants’ investigation was unworthy of credence.

I would therefore reverse the decisions of the district court admitting the PEERS report

summary without also ordering disclosure of the full PEERS report, and granting Defendants’

motion for summary judgment, and would remand the case to allow for a jury to properly weigh

the evidence.