The plaintiff-appellant, Rini Das (“the plaintiff’ or “Das”), a citizen of India, has contested the district court’s award of summary judgment to her former employer, defendant-appellee The Ohio State University (“OSU” or “the defendant”), by which that court dismissed Das’ complaint alleging Title VII “national origin” discrimination in employment and other claims.
The trial court succinctly articulated the operative facts of record. Das, 115
Virtually from the outset of Das’ tenure, the plaintiffs supervisor, CQMD Director Kelly Scheiderer (“Scheiderer”), identified serious problems with the plaintiffs job performance, including an inability to respect professional confidentiality obligations, a lack of professional judgment and independence, and a surprising degree of unprofessionalism in her interactions with superiors and colleagues. The collective testimony of Scheiderer and Hospital Administrator Gail Marsh (“Marsh”) disclosed that Das used inappropriately informal “slang” expressions in professional communications; frequently committed, in her formal records of official proceedings and in other written communiques, unacceptable inaccuracies including grammar and usage errors, which caused misunderstandings and miscommunications; and required a degree of hands-on supervision atypical for a highly educated management-level employee. The plaintiffs low-quality work product often compelled substantial revision thereof, or duplication of effort, by a superior. Furthermore, Das was prone to improperly delegating her work duties and responsibilities to subordinate employees. Moreover, in addition to her substantively lax and ineffective performance, Das typically communicated verbally in a loud, confrontational, or aggressive tone; habitually interrupted others; and frequently criticized her workplace colleagues.
In August 1996, following the completion of the plaintiffs first year on OSU’s payroll, Scheiderer prepared a routine annual written Performance and Commitment to Excellence (“PACE”) evaluation of Das’ performance, whereon she listed Das’ practical deficiencies outlined above. That document, as drafted by Scheiderer, advised the plaintiff that her chronic failure to correct those inadequacies or improve her performance, irrespective of Scheiderer’s continual verbal counseling of the plaintiff regarding the unsatisfactory discharge of her professional duties, had culminated in an unacceptably low rating of her year-long work product and workplace practices. Prior to the presentation of that assessment to Das, Marsh studied it. Marsh then referred it to Human Resources Administrator Lidia Mig-itz (“Migitz”) for an independent review and commentary. Based upon the objective information furnished by Scheiderer via the PACE write-up, Migitz recommended that the university request Das’ resignation; or alternatively, that it should discharge her if she declined to resign.
Subsequently, in mid-August 1996, Scheiderer and Migitz conducted a routine annual performance review meeting with Das. The two managers presented the negative PACE evaluation to Das at that time, coupled with a request for her resignation plus notification that she otherwise would face dismissal. Confronted with an election between immediate resignation or involuntary termination, Das selected resignation.
Das has claimed to have been “surprised” by the unflattering PACE, and by the severance of her employment relation
Via her self-serving testimony, Das has endeavored to assign an ethnically discriminatory motive propelling OSU’s decision to discharge her, claiming that, during the year of her employment by the defendant, it had exhibited a pattern of “cultural insensitivity” towards her, which had blossomed into an ethnically biased performance evaluation, which in turn germinated a nationality-animated discriminatory discharge. She has contended that her misuse of the English language, and her offensive communication techniques, were innocuous byproducts of her foreign linguistic and cultural heritage. She charged that Scheiderer, and a second, unnamed, hospital employee, had mocked her alien accent. Das also alleged that OSU’s requirement that she complete the identical standardized “Myers Briggs Personality Inventory” that it administered to all other employees in her department was somehow culturally bigoted; that managerial pressure to participate in festive seasonal activities likewise discriminated against her; and that Marsh’s suggestion that she remove posted racially-charged cartoons from her work area similarly evidenced disparate treatment impelled by her national origin. Finally, Das has purported to corroborate her “cultural insensitivity” charge by alluding to vague con-clusory hearsay statements attributed to co-workers Gabrielle Reissland and Sally Betz which allegedly mirrored their personal subjective opinions that the defendant had behaved insensitively and dis-criminatorily towards minorities.
Title VII “disparate treatment” employment discrimination may be proved either by direct evidence or indirect circumstantial evidence. See, e.g., Weberg v. Franks,
The trial court committed no error of fact or law in determining that, after construing all record proof most favorably for the plaintiff, she “has not presented direct evidence of discrimination.” Das,
Turning to the plaintiffs “inferential” case, under the “burden shifting” paradigm articulated in McDonnell Douglas Corp. v. Green,
(1) she [the plaintiff] was a member of the protected class, i.e., [an ethnic minority]; (2) that she was subjected to an adverse employment action; (3) that she was qualified for the particular position; and (4) that she was replaced by a person not a member of the protected class [or that a similarly situated person outside of the protected class received comparatively favorable treatment].4
Gagné v. Northwest Nat’l Ins. Co.,
The trial court resolved that Das had failed to produce sufficient evidence to create a triable issue supportive of the fourth element of her prima facie “circumstantial” case, because the record proof was uncontradicted that OSU did not replace Das following her termination, but instead assigned her duties among the two remaining Quality Control Engineers on the hospital staff; moreover, Das has identified no “similarly situated” comparable fellow em
On review, Das has not challenged the “absence of evidence” ruling per se. Rather, she has renewed a novel alternate legal argument, which the trial jurist had rejected, namely that, irrespective of her failure of proof on the fourth element of her prima facie case, this court should nevertheless remand her claim for a jury trial on its averred merits, because she purportedly had evidenced a sufficient inferential link between her minority status and her employment discharge to create a jury question. In support of that theory, the plaintiff has cited Furnco Constr. Corp. v. Waters,
Specifically, the Fumco Court rebuked the court of appeals for having required that, for the employer to rebut the plaintiffs’ prima facie case, the employer’s articulated justification for its contested hiring procedure must demonstrate that it was “the method which allows the employer to consider the qualifications of the greatest number of minority applicants.” Id. at 576,
Although the abstract merit of the plaintiffs creative theory is, to say the least, open to debate, and furthermore the applicability of that theory, even if colorable, to the instant record is patently susceptible to an overpowering assault given the fatal evidentiary void in the plaintiffs overall alleged “proof’ of actual discrimination, this court need not resolve those matters. Instead, even if the instant court assumes arguendo that Das has cleared all prima facie elemental hurdles, she has not surmounted the defendant’s proffered legiti
To survive summary judgment, Das needed to furnish evidence which, if fully credited and construed in the light most favorable to her, would be legally sufficient to justify a finding by hypothetical rational jurors that OSU in fact had released her because of her national origin, irrespective of its assertion, supported by qualified evidence, that it resolved to terminate the plaintiff’s employment because of her objectively deficient job performance, unacceptable work habits, and lack of communication skills. However, Das failed to produce any probative evidence that the reasons provided by her former employer for her discharge were factually false; that OSU was actually motivated by her nationality rather than her unsatisfactory work product, inadequate job skills, disharmonious workplace interactions, and stubborn resistance to constructive advisories; or that her evidenced deficiencies were objectively insufficient to warrant dismissal. See Dews v. A.B. Dick Co.,
Generally, to carry her burden at trial of disproving the employer’s proffered “performance dissatisfaction” explanation and concomitantly proving actual discrimination, the plaintiff must supply proof sufficient to persuade a rational jury that she “was performing to the employer’s reasonable satisfaction.” Godfredson v. Hess & Clark, Inc.,
In conclusion, this reviewing court, following careful study and consideration of the district court’s well-reasoned published summary judgment opinion, the briefs and arguments of counsel, the materials contained in the litigants’ joint appendix, and the controlling legal authorities, has, upon
Notes
. The plaintiff’s complaint had asserted additional federal and state law causes of action. The district court summarily rejected each of those claims. However, on review, via her appellant’s brief, Das has irrevocably waived all claims stated in her complaint other than her Title VII action for averred national origin discrimination in employment. See United States v. Olano,
Section 703(a) of Title VII of the Civil Rights Act of 1964 partially dictates; It shall be an unlawful employment practice for an employer—
(1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to his 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)(l). (Emphasis added).
. The subjective conclusory opinions of the plaintiff or her co-workers do not comprise competent proofs of employment discrimination. See Chappell v. GTE Products Corp.,
. Accordingly, this court has no occasion to address the defendant's burden of persuasion which would have arisen if the plaintiff had offered sufficient proof to create a triable "direct evidence” case. See, e.g., Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir.2000).
. Under the McDonnell Douglas framework, if the plaintiff can satisfy the quadruple-elemental demands of her "circumstantial” pri-ma facie case, the burden of producing (but not of proving) a legitimate, nondiscriminatory reason for the charged adverse employ-inent action shifts to the defendant former employer. If the defendant successfully carries that burden, a de novo burden is imposed upon the plaintiff to disprove the employer’s articulated reason by proving that it was a mere pretext intended to mask an actual discriminatory purpose. See Reeves v. Sanderson Plumbing Products, Inc.,
