# Shirley J. MITCHELL, Plaintiff-Appellant, v. TOLEDO HOSPITAL, Defendant-Appellee > Court of Appeals for the Sixth Circuit · May 21, 1992 · 964 F.2d 577 URL: https://www.frixlaw.com/law-library/cases/9482951 ## Case - **Full name:** 59 Fair empl.prac.cas. (Bna) 76, 59 Empl. Prac. Dec. P 41,640 Shirley J. Mitchell v. Toledo Hospital - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** May 21, 1992 - **Citations:** 964 F.2d 577; 59 Fair Empl. Prac. Cas. (BNA) 76; 59 Empl. Prac. Dec. (CCH) 41,640; 1992 U.S. App. LEXIS 11505 - **Precedential status:** Published - **Opinion:** Dissent by Jones - **Judges:** Jones, Nelson, Rosen - **Cited by:** 1,699 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482951 ## How later opinions describe it (automated extraction) - holding that a plaintiff terminated for "misuse of [an employer's] property" could not rely on comparators allegedly guilty of "absenteeism" and "insubordination" - reasoning that “to be deemed 'similarly-situated', the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or … - holding that a prima facie case of discrimination can be stated under the ADEA by presenting either direct evidence of intentional age discrimination or indirect evidence of disparate treatment on the basis of age, but finding no discrimination because the employer successfull… - explaining that Fed.R.Civ.P. 56(e) “requires that affidavits in support of, or in opposition to, a motion for summary judgment be made on personal knowledge, set forth such facts as would be admissible into evidence and show affirmatively that the affiant is competent to testi… - stating that the other employee ordinarily “must have 49 dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s… ## Opinion text NATHANIEL R. JONES, Circuit Judge, dissenting. I take a substantially different view of the evidence in this case, and that view leads me to a result opposite from that of the majority. Accordingly, I respectfully dissent. In her deposition, Mitchell testified at some length and in great detail about the fact that she and her co-workers agreed to play a practical joke on Waehsman, their team leader’s supervisor. In furtherance of their agreement, Mitchell told her coworkers where the hospital’s billing forms were located. When Waehsman later came looking for the forms, none of Mitchell’s coworkers told him that the forms were under Mitchell’s desk. Instead, Cindy Dawson merely told Mitchell the next day that Waehsman and another billing manager had come looking for the forms. Thus, all the accounts examiners clearly participated in the practical joke. Nonetheless, Mitchell was the only one singled out for punishment. Mitchell was, concededly, the only one who actually lied to Waehsman. I agree with the majority that this factor distinguishes Mitchell. Specifically, I would find that she was more insubordinate than the others. Of course, the problem with the majority’s analysis is that Mitchell was not discharged for insubordination. With this factual background in mind, I turn to Mitchell’s legal claims. I join the majority in holding that this case is more appropriately viewed under a four-factor test that replaces the replaced-by-a-non-protected-person element of McDonnell Douglas/Burdine with a comparable-non-protected-person-was-treated-better element. Mitchell was comparable to her co-workers but for the insubordination involved in lying to Waehsman. In this regard, I would find that Mitchell met the fourth element of the test by alleging that, in 1987, Bobbie Walley, an employee in charge of filing, cursed at her team leader. Walley was not fired. This is a clear example of how Tole *586 do Hospital has dealt with insubordinate employees in the past. Walley’s act is of a similar type — verbal insubordination — and of “comparable seriousness.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 , 93 S.Ct. 1817, 1825 , 36 L.Ed.2d 668 (1973). In the textual discussion preceding footnote 5, the majority relies upon Stotts v. Memphis Fire Department, 858 F.2d 289 (6th Cir.1988) for the proposition that Walley is not similarly situated in all respects to Mitchell. Stotts involved an action filed under the terms of a 1980 consent decree issued in a separate class action against the Memphis Fire Department. Id. at 291 . In this context, the court addressed the district court’s finding of a pattern and practice of disparate treatment in the Department’s discipline of its employees. Id. at 296 . We repeatedly stressed, either by way of emphasis or quotation marks, that the relevant inquiry was whether the white employees were engaged in acts of comparable seriousness. E.g., id. at 296-98 . Nowhere does that case discuss the meaning of “similarly situated.” In fact, the Stotts court compared the conduct of Captain Tom Phillips, a white manager in the Department’s administration, and Chief William Posey, a white, higher-ranking official, who both stole a promotional exam, with the conduct of the plaintiff, Jesse Jones, Jr., a fire fighter, who was disciplined for fighting. Id. at 291, 300 , In concluding that Jones’s case and Phillips’ case lacked similarity and comparability, the court focused upon a comparison of the acts of stealing and fighting, without ever mentioning the fact that Phillips was an administrator while Jones was a fire fighter. Id. at 300 . Thus, Stotts provides ample support for the proposition that the primary inquiry is into conduct rather than into precise occupational status. Similarly, Lanear v. Safeway Grocery, 843 F.2d 298 (8th Cir.1988) does not support the position expressed in footnote 5. The actual quotation from Lanear is “ ‘similarly situated in all relevant respects.’ ” Id. at 301 (emphasis added) (quoting Smith v. Monsanto, 770 F.2d 719, 723 (8th Cir.1985), cert. denied, 475 U.S. 1050 , 106 S.Ct. 1273 , 89 L.Ed.2d 581 (1986)). Furthermore, the Lanear court does not engage in any analysis supporting the fine distinction in occupational status suggested by footnote 5 of the majority’s opinion in the instant case. The district court in Mazzella v. RCA Global Communications, 642 F.Supp. 1531 (S.D.N.Y.1986), aff'd, 814 F.2d 653 (2d Cir.1987) attempted to provide some objective standards to measure the relevant aspects in determining whether a fellow employee is similarly situated: Employees are not “similarly situated” merely because their conduct might be analogized. Rather, in order to be similarly situated, other employees must have reported to the same supervisor as the plaintiff, must have been subject to the same standards governing performance evaluation and discipline, and must have engaged in conduct similar to the plaintiff’s,- without such differentiating or mitigating circumstances that would distinguish their conduct or the appropriate discipline for it. Id. at 1547. Like Lanear, Mazzella is relevant here only for whatever persuasive effect it may have. Mazzella , however, is not persuasive, because after stating the facts and its rule of law, the district court engages in no analysis whatsoever. Id. Rather, it refers the reader back to the facts. From those facts, one may infer that Mazzella compared herself to dissimilar employees. Id. at 1546 . Nonetheless, this inference falls far short of supporting the view that the fellow employees must be engaged in exactly the same occupation and report to the same supervisor. The Mazzella court’s holding is based on many other factors, the bulk of which address the other employees’ conduct and the absence of proof thereof. Id. Applying these principles to the instant case, Walley and Mitchell held jobs at the same level in the occupational hierarchy— specialized secretarial positions. Whether they reported to different supervisors is irrelevant here, because decisions regarding employee discipline at Toledo Hospital were made by a five-member review board. Furthermore, both employees are judged *587 by the same standards — the hospital’s employee handbook. Accordingly, although Walley and Mitchell are certainly not similarly situated in all respects, the majority cites no relevant respects in which they differ. In any event, the primary inquiry, once again, examines the similarity of the employee’s conduct, not their occupational status. Having found a prima facie case, I would turn to Toledo Hospital’s proffered nondiscriminatory reason for Mitchell’s discharge: “misuse” of hospital property. The burden then shifts back to Mitchell to present evidence that the hospital’s reason was merely a pretext for discrimination. As the Supreme Court explained in Burdine, a plaintiff may succeed in proving intentional discrimination “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 , 101 S.Ct. 1089, 1095 , 67 L.Ed.2d 207 (1981) (emphasis added). The majority somehow finds it immanently logical that an employer, after providing employees with personal filing cabinets, would fire an employee for locking important forms in one of those cabinets. I find this remarkable on its face, but all the more remarkable in the instant case, because Mitchell was the only one with the insight to rescue the forms from the trash after Wachsman carelessly left them to be discarded by housekeeping. Keep in mind that the hospital is not claiming that it discharged Mitchell for her conduct in lying to Wachsman. Rather, it alleges that she was discharged only for misuse of hospital property or, in other words, solely for locking the forms away for safekeeping. I would suggest that such an explanation is unworthy of credence. Other considerations also lead me to the conclusion that summary judgment was inappropriate in this case. Even in the “new era” of summary judgment, the party moving for summary judgment bears the burden of proving that no genuine issue of material fact exists. Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1481 , 117 L.Ed.2d 624 (1992). The district court granted summary judgment in the instant case based upon the affidavit of Donald Currier, Toledo Hospital’s Vice-President of Human Resources. Currier represented therein that Mitchell was discharged for misuse of hospital property, a terminable offense pursuant to the employee handbook. The district court accepted this representation even though the employee handbook was not in evidence. I would hold that the hospital could not meet its burden by a mere allegation that misuse is a terminable offense; I would require that the hospital cite to a handbook in evidence or, at the very least, quote the relevant portion of the handbook. A second problem arises from this court’s attempt to review this case in the absence of the employee handbook’s exact language. Assuming the handbook provision refers to “misuse” in only general terms, the jury would be entitled to decide whether the hospital was offering a genuine interpretation of that language or merely a pretext for discrimination. I would surmise that a jury would be likely to interpret a general “misuse” provision as being addressed to the problem of misappropriation of hospital property. In any event, I posit that no one, except apparently the majority of this Court, would conclude that a person could “misuse” what she did not in fact “use.” In sum, I would find that Mitchell responded sufficiently to Toledo Hospital’s motion for summary judgment by alleging that the hospital’s proffered nondiscriminatory reason is unworthy of credence. 1 Ac *588 cordingly, I would reverse the district court, because the record demonstrates a genuine issue of material fact as to whether Mitchell’s conduct constituted misuse of hospital property. . Mitchell also alleged specific evidence of disparate treatment involving “misuse,” namely that two other employees, Karen Lind and Connie Kortgoede, kept personal and medicare checks payable to the hospital locked in their desk drawers, yet the hospital did not discharge either of them for misuse of hospital property. Her allegations, however, were not based upon personal knowledge, and her counsel did not preserve the matter for discovery by a Rule 56(f) motion. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482951. Public record. Not legal advice.