Lead Opinion
Plaintiff Monica Rogers, an African-American woman in her sixties, has been employed by defendant Henry Ford Health System ("HFHS") for over thirty years. In late 2012, Rogers was working as a consultant in HFHS's Organizational Human Resources Development ("OHRD") Department. After she was denied reclassification as a Senior OHRD Consultant, Rogers made an internal complaint of racial and age discrimination. When the resulting internal investigation found no evidence of discrimination, Rogers filed an EEOC charge.
A few months after Rogers filed this charge, co-workers began reporting that Rogers's emotional state was erratic and that they feared she might pose a physical threat to herself or others. In response, Rogers was placed on paid leave and sent for a fitness-for-duty exam. After a doctor cleared Rogers for work, she claims that she was offered the choice of either transferring to a position in a subsidiary of HFHS or taking severance. Rogers chose the transfer. She then filed a second EEOC charge alleging retaliation; the EEOC found probable cause to support this complaint.
Rogers subsequently filed suit against HFHS alleging multiple violations of
I. FACTS AND PROCEDURE
A. Events Preceding the First EEOC Charge
Rogers first began working at HFHS in 1981 and has held a variety of positions over the years, most of which have been in human resources. R. 55-7 (Pl. Decl. at ¶ 3) (Page ID #1369);
When she first started as an OHRD Consultant, Rogers reported to Laurie Jensen.
Rogers's tenure at HFHS between 2008 and 2013 was a mixture of positive performance reviews, interpersonal problems, and ultimately a denial of Rogers's request to be reclassified as a Senior OHRD Consultant. Although Rogers received consistently good reviews from both Jensen and Jackson-Lewis throughout this period, in July 2010 Jackson-Lewis issued Rogers an HFHS-Employee Assistance Program ("EAP") Formal/Disciplinary Action Referral. R. 48-13 (EAP Referral) (Page ID #825-26). In the EAP referral, Jackson-Lewis reported that Rogers "appears to focus primarily on what other employees are doing, or not doing, rather than focusing on what is expected of her."
In 2012 two Senior OHRD Consultants left the department and were not replaced, so Rogers helped fulfill their duties. R. 55-7 (Pl. Decl. at ¶ 76) (Page ID #1384); R. 55-15 (Pl. 2012 Eval. at 1, 7) (Page ID #1455, 1461). In December 2012 and January 2013, Rogers began asking the OHRD management for reclassification as a Senior OHRD Consultant-as opposed to simply an OHRD Consultant-because she believed she was performing the duties of the more senior position. R. 48-2 (Pl. Dep. at 125-26) (Page ID #731). Rogers first approached Jan Harrington-Davis-who describes her role as "the HR person for HR," R. 48-4 (Harrington-Davis Dep. at 42) (Page ID #764)-about being reclassified. Rogers asked Harrington-Davis if she had not been reclassified as a Senior OHRD Consultant due to her age, and Harrington-Davis allegedly responded: "[I]t has nothing to do with your age, it's because you're black." R. 55-7 (Pl. Decl. at ¶ 82) (Page ID #1385-86); R. 56-9 (Mar. 2013 Internal Comp.) (Page ID #1589). Rogers asserts that Harrington-Davis agreed, however, that Rogers deserved to be a Senior OHRD Consultant.
Rogers next met with Jensen and told Jensen that she believed she was doing the work of a Senior OHRD Consultant. The parties contest whether Jensen agreed or disagreed with Rogers's self-assessment, but both agree that Jensen suggested that she and Rogers meet with Harrington-Davis about Rogers's request. R. 48-15 (Jensen Journal) (Page ID #831); R. 55-7 (Pl. Decl. at ¶ 83) (Page ID #1386). Prior to this meeting, Harrington-Davis reviewed the job description of a Senior OHRD Consultant. R. 48-4 (Harrington-Davis Dep. at 59) (Page ID #766). The job description lists an M.B.A., M.A., or M.S. as the minimum required education for the position. R. 48-8 (Sr. OHRD Consultant Job Description at 2) (Page ID #791). Based on this, Harrington-Davis told Rogers that she could be reclassified as a Senior OHRD Consultant only if Rogers obtained a master's degree or if the job description were revised to remove this requirement. R. 48-4 (Harrington-Davis Dep. at 71-72) (Page ID #767).
Subsequently, in March 2013, Rogers submitted a complaint alleging discrimination by Jensen to Derick Adams, the Vice President of Human Resources. R. 56-9 (Mar. 2013 Internal Compl.) (Page ID #1589). In response, Adams asked Dan Champney, an attorney in the general counsel's office of HFHS's subsidiary Health Alliance Plan ("HAP"), to investigate *769Rogers's claims. R. 48-18 (Adams Dep. at 10-11) (Page ID #841). Champney conducted an internal investigation and concluded "that there is little evidence that Monica Rogers has been discriminated against on the basis of her age or race." R. 48-20 (Internal Investigation Rep. at 7) (Page ID #865). On July 3, 2013, just over a month after Champney finished his internal investigation, Rogers filed an EEOC charge alleging racial discrimination and retaliation. R. 48-21 (July 2013 EEOC Charge) (Page ID #902). The record is silent as to the outcome of this EEOC charge.
B. Events Preceding the Second EEOC Charge
In August and September 2013, several of Rogers's co-workers raised concerns about her behavior. Karen Giovannini met with Jensen and told her that she was concerned about Rogers because during a meeting Rogers was "acting very euphoric and very out of sorts[,] laughing really loud, kind of swaying back and forth." R. 48-24 (Giovannini Dep. at 8) (Page ID #915); R. 55-6 (Jensen Dep. at 178, 180) (Page ID #1333). During this meeting, Rogers was allegedly touching a co-worker with both of her hands.
Subsequently, Patrick Payne, who described himself as a "pretty good work friend[ ]" of Rogers, R. 55-3 (Payne Dep. at 30) (Page ID #1239), went to Jensen upset that Rogers had named him in her racial discrimination complaint as another African-American employee who had faced discrimination at HFHS. R. 48-22 (Jensen Notes) (Page ID #904). Payne told Jensen "who knows what [Rogers] could do," and referenced an incident in which Rogers had smashed in the car windows of her husband's mistress with a baseball bat.
After Payne raised his concerns with Jensen, she spoke with Bressack to determine if Rogers had made other threats. R. 55-6 (Jensen Dep. at 177-78) (Page ID #1333); R. 48-11 (Bressack Dep. at 120-21) (Page ID #813-14). Bressack told Jensen that she had been unsettled by Rogers's belief that her co-workers were lying and that Rogers had told her "justice would be served." R. 48-11 (Bressack Dep. at 121) (Page ID #814); R. 55-6 (Jensen Dep. at 177) (Page ID #786). And, at some point in time, Jackson-Lewis talked with Jensen about the concerns surrounding Rogers's behavior, and confirmed that Rogers had *770also told Jackson-Lewis that Rogers had used a baseball bat to destroy the windows of her husband's mistress's car. R. 55-6 (Jensen Dep. at 186-87) (Page ID #1335).
Jensen spoke with Kathy Oswald, Senior Vice President and Chief Human Resource Officer for HFHS, about the reports Jensen had received regarding Rogers's behavior. R. 55-6 (Jensen Dep. at 168) (Page ID #1330); R. 48-26 (Oswald Dep. at 6, 13) (Page ID #926, 928). Jensen then reported her concerns to Adams; she said that Rogers had displayed "erratic behavior" and Jensen was "concerned for her personal safety." R. 55-5 (Adams Dep. at 15) (Page ID #1266). Adams's testimony about exactly what he knew after this initial conversation with Jensen and what he learned later is somewhat inconsistent, but the thrust of his testimony is that he was primarily concerned about reports of Rogers's unpredictability and the fact that Jensen felt threatened.
On September 11, 2013, Adams met with Rogers and told her that she was being put on paid leave and was being referred to the EAP for a fitness-for-duty exam.
Rogers met with Dr. Bodnar, an HFHS physician, on September 20, 2013 for her fitness-for-duty exam. R. 48-29 (Bodnar Report) (Page ID #951). Dr. Bodnar cleared Rogers to return to work. R. 48-2 (Pl. Dep. at 254) (Page ID #747); R. 55-5 (Adams Dep. at 75) (Page ID #1281). According to Rogers, Dr. Bodnar said to her: "I don't know why they sent you down here" and apologized. R. 48-2 (Pl. Dep. at 254) (Page ID #747). Dr. Bodnar did recommend that Rogers follow up with the EAP however. R. 48-29 (Bodnar Report) (Page ID #951). On September 24, following her fitness-for-duty exam, Rogers filed a second EEOC charge, alleging that she was retaliated against for filing her previous charge. R. 56 - 14 (Sept. 2013 EEOC Charge) (Page ID #1607).
C. Transfer to HAP
Approximately a week after Rogers passed her fitness-for-duty exam, she had a meeting with Adams and Harrington-Davis. R. 48-2 (Pl. Dep. at 255) (Page ID #747); R. 55-5 (Adams Dep. at 75) (Page ID #1281). Adams testified that he gave Rogers at that meeting three options: (1) she could return to her position as OHRD Consultant; (2) she could transfer to HAP and work as a Business Partner in that division; or (3) take a severance package and leave HFHS entirely. R. 55-5 (Adams Dep. at 77) (Page ID #1282). Adams said that he gave Rogers the option of transferring to HAP because: "that way it would not put her right in the same area with Laurie [Jensen, and] having to report to Barbara [Bressack], you know, because we knew that at that point that she had an outstanding EEOC complaint and we just thought that that would give her kind of some space from all of that."
Rogers disputes that she was given the option of remaining in her current position. R. 48-2 (Pl. Dep. at 257) (Page ID #748). Harrington-Davis's recollection of the meeting is that Adams offered Rogers the first and second options-stay in her current position or transfer to HAP-but Harrington-Davis did not testify about the *771severance option. R. 48-4 (Harrington-Davis Dep. at 85) (Page ID #770).
Rogers chose to transfer to HAP and began working in that division on October 14, 2013. R. 48-2 (Pl. Dep. at 258) (Page ID #748). She received the same pay as a Business Partner at HAP as she did as an OHRD Consultant, and has since received salary increases, but she claims it is an inferior position within the structure of HFHS.
D. Instant Lawsuit
The EEOC investigated Rogers's claim of retaliation and concluded that there was "reasonable cause to believe [Rogers's] allegations are true in that she was placed on administrative leave and later reassigned in retaliation for engaging in prior protected activity." R. 56 - 15 (EEOC Determination) (Page ID #1610).
Rogers subsequently filed a complaint against HFHS in federal district court, alleging claims of racial discrimination, age discrimination, and retaliation in violation of §
II. ANALYSIS
A. Standard of Review
We review de novo a district court's grant of summary judgment. Schleicher v. Preferred Sols., Inc. ,
"We review claims of alleged race discrimination [and retaliation] brought under § 1981 and the Elliott-Larsen Act under the same standards as claims of race discrimination brought under Title VII ...." Jackson v. Quanex Corp. ,
*772Upshaw ,
B. Racial Discrimination
Rogers brought racial-discrimination claims under § 1981, Title VII, and Michigan's Elliott-Larsen Civil Rights Act. R. 1 (Compl. at ¶¶ 31-34, 39-41, 45-47) (Page ID #7-10). Although Rogers originally styled her claim as a failure to promote, R. 1 (Compl. at ¶ 17) (Page ID #4), she briefed the claim as a failure to reclassify in her response to HFHS's motion for summary judgment, R. 64 (Dist. Ct. Op. at 7) (Page ID #1945). Consequently, the district court treated this as a request to amend the complaint, and analyzed her claim as a failure to reclassify and not as a failure to promote. Id. at 8 (Page ID #1946). Rogers does not contest this portion of the district court's decision and proceeded before us to argue her claim as a failure to reclassify. Oral Argument at 6:35.
To establish a prima facie case of unlawful discrimination due to a failure to reclassify, Rogers must show that: (1) she is a member of a protected class; (2) she was subject to an adverse employment action; (3) "she performed job duties more advanced than those covered by her job description and, therefore, that she was qualified for reclassification"; and (4) she was treated differently than a similarly situated person outside the protected class. Russell v. Ohio, Dep't of Admin. Servs. ,
HFHS does not contest that Rogers is a member of a protected class and that she suffered an adverse employment action. Id. at 9 (Page ID #1947); Appellee Br. at 26. Thus, the only two elements of the prima facie case at issue are whether Rogers was qualified for reclassification and whether she was treated differently than similarly situated individuals outside the protected class.
The parties do not dispute that Rogers helped perform some of the extra workload created by the departure of two Senior OHRD Consultants. R. 55-7 (Pl. Decl. at ¶ 76) (Page ID #1384); R. 55-15 (Pl. 2012 Eval. at 1, 7) (Page ID #1455, 1461); R. 55-6 (Jensen Dep. at 199-201) (Page ID #1338-39). They do disagree, however, over whether Rogers was fulfilling all of the duties of a Senior OHRD Consultant or temporarily helping to alleviate the issues caused by two employees leaving simultaneously. Compare R. 48-2 (Pl. Dep.
*773at 125-28 (Page ID #731), with R. 55-6 (Jensen Dep. at 199-201) (Page ID #1338-39), and R. 55-15 (Pl. 2012 Eval. at 1, 7) (Page ID #1455, 1461), and R. 48-4 (Harrington-Davis Dep. at 87-88 (Page ID #770); see also R. 64 (Dist. Ct. Op. at 9) (Page ID #1947).
HFHS argues that Rogers was not qualified for reclassification, regardless of what duties she was actually performing, because she did not have the requisite minimum education. Appellant Br. at 27-29. Education and fulfillment of duties do sometimes converge. For example, someone without a science degree may be physically able to teach a science class, but his or her execution of the task would be significantly inferior to that of another person with a science degree, such that we could say that the person lacking the degree is not qualified to be a science teacher. On the other hand, some jobs do not require a degree and can be performed by any capable person, regardless of specific educational background. Cf. Griggs v. Duke Power Co. ,
Whether Rogers was qualified for reclassification as a Senior OHRD Consultant, therefore, merges into an evaluation of whether similarly situated individuals outside of the protected class were treated differently. If HFHS did not require other employees to meet the minimum educational requirements, then this casts doubt on whether the educational requirement for the position of Senior OHRD Consultant was a necessary requirement or whether, in practice, someone without the requisite degree could ably perform all of the duties of this position. In other words, if Rogers can make a prima facie case that the purported educational requirements for the position of Senior OHRD Consultant are a sham-because HFHS did not actually require them to be met for similarly situated individuals-she will have shown that she was both qualified for reclassification and that HFHS treated similarly situated employees outside of the protected class differently.
Rogers initially identified six other HFHS employees, who are not African-American, that she claims were reclassified without meeting the stated minimum qualifications: Brian Robertson, Patti Sanburn, Carol Bridges, Tarra Bufford, Nicole Logan, and Debbie Saoud.
Brian Robertson. Robertson has been an OHRD Consultant since 2011. R. 48-43 (Robertson Aff. at ¶ 4) (Page ID #1001). Prior to that time he was in the Technical Education Services ("TES") Department and was classified as a Technical Trainer, a position that did not require a bachelor's degree.
Patti Sanburn. Sanburn is the Director of Human Resources for Community Care Services; she has been in that position since 2007. R. 48-41 (Sanburn Aff. at ¶ 12) (Page ID #993). Her position requires either a bachelor's degree or eight years of experience as a human-resources manager. R. 48-42 (HR Director Cmty. Care Servs. Job Description at 2) (Page ID #997). Sanburn does not have a bachelor's degree, R. 48-20 (Internal Investigation Rep.) (Page ID #900), but at the time she assumed her current position she had fifteen years of experience as a human-resources manager, R. 48-41 (Sanburn Aff. at ¶¶ 10-11) (Page ID #993).
Carol Bridges. Bridges has been the Director of Service Excellence and Volunteer Services at Henry Ford Wyandotte Hospital since 2011. R. 48-39 (Bridges Aff. at ¶ 8) (Page ID #982). Rogers and HFHS provide two different versions of the same job description. Compare
Debbie Saoud. Saoud has been employed as a Director of Human Resources for Physician Services since 2012. R. 48-32 (Saoud Aff. at ¶ 9) (Page ID #963). Saoud has a bachelor's degree in business administration, an associate's degree in computer programming, and a second associate's degree in general studies. Id. at ¶ 3 (Page ID #963). The job description for the position she is in requires a bachelor's degree, with a master's degree preferred. R. 48-33 (Dir. for Physicians Job Description) (Page ID #966). It also requires "[s]even years of progressively more responsible related work experience" and "one year of leadership experience in Human Resources."
Sanburn and Saoud both meet the stated minimum qualifications of their jobs and therefore are not similarly situated to Rogers. In contrast, Robertson and Bridges are in positions that require bachelor's degrees, although neither has the *775requisite degree. Robertson and Bridges did not receive more favorable treatment than Rogers in this regard, however, because Rogers also occupied a position that required a bachelor's degree and HFHS waived that requirement for her as well. The evidence Rogers has adduced-including her own treatment-is sufficient for a reasonable trier of fact to conclude that HFHS will waive a stated minimum education requirement if an employee has one degree less than what is required, i.e., a high school diploma but not the required bachelor's degree. But the examples of Robertson, Bridges, and Rogers herself do not establish that HFHS is willing to waive an educational requirement that is two levels more than what an employee possesses. In other words, Rogers is claiming that HFHS discriminated against her by not reclassifying her into a position that requires a master's degree when she has only a high school diploma, but points to no other employee-inside or outside the protected group-who was afforded a two-level educational "jump." Cf. Ercegovich v. Goodyear Tire & Rubber Co. ,
Rogers, therefore, has not produced sufficient evidence to establish the third and fourth elements of her prima facie case: that "she performed job duties more advanced than those covered by her job description and, therefore, that she was qualified for reclassification" and that she was treated differently than a similarly situated person outside the protected class. Russell ,
C. Retaliation
Rogers also brought retaliation claims pursuant to § 1981, Title VII, and Michigan's Elliott-Larsen Civil Rights Act. R. 1 (Compl. at ¶¶ 35-38, 42-44, 45-47) (Page ID #7-10). These claims are all analyzed under the same standard. Kuhn ,
1. Prima Facie Case
To establish a prima facie case of retaliation a plaintiff must establish that: (1) she engaged in a protected activity; (2) her "exercise of such protected activity was known by the defendant; (3) thereafter, the defendant took an action that was 'materially adverse' to the plaintiff; and (4) a causal connection existed between the protected activity and the materially adverse action." Laster v. City of Kalamazoo ,
In articulating the third element of a prima facie case of retaliation, the district court erred and stated that Rogers needed to show that she suffered an adverse employment action constituting a "significant change in employment status." R. 64 (Dist. Ct. Op. at 12) (Page ID #1950) (quoting Burlington Indus., Inc. v. Ellerth ,
A reasonable factfinder could conclude that Rogers suffered materially adverse actions. Rogers was referred to a fitness-for-duty exam, placed on leave, escorted out of the office, had her badge removed, and her email set to send out an automated reply that she was no longer with HFHS. R. 55-5 (Adams Dep. at 65-68, 71-72) (Page ID #1279-79); R. 56 - 12 (Auto. Email) (Page ID #1603). Upon her return to work after she passed her fitness-for-duty-exam, Rogers met with Adams and Harrington-Davis and they offered Rogers a choice about her future employment with HFHS. R. 48-2 (Pl. Dep. at 255) (Page ID #747); R. 55-5 (Adams Dep. at 75) (Page ID #1281). The parties dispute exactly what Rogers was offered, compare R. 55-5 (Adams Dep. at 77) (Page ID #1282), with R. 48-2 (Pl. Dep. at 257) (Page ID #748), but a rational factfinder could credit Rogers's testimony that she had the choice only between taking a severance package or transferring to HAP. According to Rogers, her position at HAP is inferior to her position in the OHRD Department of HFHS even though she received the same salary. R. 55-7 (Pl. Decl. at ¶¶ 128-35) (Page ID #1394-95). Her previous position allowed her to interact with many members of senior management and take on more impactful roles.
The cumulative effect of these actions is sufficient such that a jury could find that they would have dissuaded a reasonable employee from making a charge of discrimination. See Michael v. Caterpillar Fin. Servs. Corp. ,
In addition to establishing that she faced a material adverse action, Rogers must show a causal connection between this action and the protected activity. Laster ,
Rogers, therefore, has made out a prima facie case of retaliation and the burden shifts to HFHS to proffer a legitimate, non-retaliatory reason for its conduct.
2. Legitimate Non-Retaliatory Reason
HFHS states that it placed Rogers on paid leave and required her to complete a fitness-for-duty exam because of complaints from her co-workers about Rogers's unsettling behavior. Appellee Br. at 46. HFHS has adduced evidence showing that Rogers's co-workers had raised concerns about her behavior, see Section I.B supra , and thus satisfied its burden to articulate a legitimate, non-retaliatory reason for its decision to send Rogers to a fitness-for-duty exam and then offer her a transfer to HAP.
3. Pretext
Because HFHS has proffered a legitimate, non-retaliatory reason for its behavior, the burden shifts back to Rogers "to demonstrate that [HFHS's] proffered reason[ ] w[as] actually a pretext to hide unlawful retaliation" by a preponderance of the evidence. Michael ,
Rogers first argues that Adams did not have a sufficient basis for ordering her to undergo a fitness-for-duty exam. Appellant Br. at 28-33. This argument is premised on undermining the credibility of Rogers's co-workers and the concerns that they had about Rogers's erratic behavior. Rogers points to a form that Adams asked Payne to complete after Jensen reported the concerns Rogers's co-workers had raised. Appellant Br. at 28; R. 55-5 (Adams Dep. at 30) (Page ID #1270). On that form-which consists, in part, of a checklist of adjectives-Payne indicated that Rogers was "[c]ooperative," "[p]olite," and "[c]alm"; he did not check off other available options such as "[e]rratic," "[had] [t]emper [o]utburst[s]," "[h]ostile," "[t]hreatening," or "[a]rgumentative." R. 55-4 (Payne Form) (Page ID #1260). In the form's comment box, Payne stated, in part:
I'm not sure if you would classify this as delusion[al], but Monica [Rogers] feels she's treated differently and has different rules just for her. She feels that rules set upon her are more restricted than other team members. She's ... expressed she's required to be more productive and held to a higher standard than others.
*778At the time Adams made his decision to refer Rogers for a fitness-for-duty exam, he had received reports from at least five other employees expressing unease with Rogers's emotional state. See Section I.B supra . Furthermore, Rogers had a documented history of emotional outbursts which predated her EEOC charge. See Section I.A. supra . Consequently, Rogers has not produced sufficient evidence such that a reasonable trier of fact could conclude that Adams's decision to put her on paid leave and undergo a fitness-for-duty exam had no basis and was pretextual.
Rogers's second argument, however, which focuses on Rogers's transfer, is more convincing. Appellant Br. at 33-34. Rogers transferred to HAP after she was cleared for duty.
* * *
Rogers has established a prima facie case of retaliation and produced sufficient evidence to allow a reasonable factfinder to reject HFHS's articulated legitimate, non-retaliatory reason for its behavior. Consequently, we reverse the district court's grant of summary judgment to HFHS with respect to Rogers's retaliation claims.
D. Age Discrimination
Rogers asserted an age-discrimination claim under Michigan's Elliott-Larsen Civil Rights Act. R. 1 (Compl. at ¶¶ 51-55) (Page ID #11). The district court held that Rogers had waived this claim by failing to defend it. R. 64 (Dist. Ct. Op. at 10) (Page ID #1948). Similarly, on appeal, Rogers makes no substantive arguments about her age-discrimination claim in her opening brief, and argues that the claim was not waived only in her reply brief. Appellant Reply Br. at 18-19. Because Rogers failed to defend her age-discrimination claim in front of the district court and does not argue on appeal that the district court erroneously deemed her claim waived, we affirm the district court's *779grant of summary judgment to HFHS with respect to Rogers's age-discrimination claim. See Kelly Servs., Inc. v. Creative Harbor, LLC ,
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's grant of summary judgment with respect to Rogers's claims of racial discrimination and age discrimination (Counts 1, 3, 5, and 7). We REVERSE the district court's grant of summary judgment with respect to Rogers's claims of retaliation (Counts 2, 4, and 6) and REMAND for further proceedings consistent with this opinion.
MOORE, J., delivered the opinion of the court in which STRANCH, J., joined, and KETHLEDGE, J., joined in part. KETHLEDGE, J. (pg. 779), delivered a separate opinion concurring in part and dissenting in part.
CONCURRING IN PART AND DISSENTING IN PART
Both the parties and the amicus cite to R. 55-7 and list it as a relevant document. See, e.g. , Appellant Br. at 8; Appellee Br. at 3, 61; Amicus Br. at 3, C-4. This declaration is not competent summary-judgment evidence because it fails to comply with either Federal Rule of Civil Procedure 56(c)(4) or
Rogers denies that she told any of her colleagues about this incident, but does not explicitly deny the veracity of the underlying story. R. 55-7 (Pl. Decl. at ¶ 145) (Page ID #1397); R. 48-2 (Pl. Dep. at 256) (Page ID #747).
Although Rogers has arguably presented direct evidence of racial discrimination, see R. 55-7 (Pl. Decl. at ¶ 82) (Page ID #1385-86) (stating that Harrington-Davis told Rogers that she would not be reclassified as a Senior OHRD Consultant "because you're black"), and retaliation, see R. 55-5 (Adams Dep. at 76) (Page ID #1281) (testifying that Adams gave Rogers the option of transferring because "we knew that at that point that she had an outstanding EEOC complaint and we just thought that that would give her kind of some space from all of that"), she neither made this argument before the district court nor before us. Instead, Rogers implicitly concedes that the McDonnell Douglas burden-shifting framework applies to her racial-discrimination and retaliation claims. See R. 55 (Pl. Opp. to Def. Mot. for Summ. J. at 18, 21, 27, 29) (Page ID #1211, 1214, 1220, 1222); Appellant Br. at 19-20, 36.
Rogers originally identified the sixth comparator as Debra Temrowski, R. 56-9 (Mar. 2013 Internal Comp.) (Page ID #1591), but testified at her deposition that she meant to refer to Debbie Saoud, R. 48-2 (Pl. Dep. at 170) (Page ID #732).
Rogers argues that Saoud actually needed three to five years of human-resources management experience, but provides no evidence supporting this assertion. R. 55-7 (Pl. Decl. at ¶ 102) (Page ID #1390); Appellant Reply Br. at 6.
It is unclear whether Adams had received Payne's form when Adams ordered Rogers to undergo a fitness-for-duty exam, as Adams's testimony is inconsistent on this point. R. 55-5 (Adams Dep. at 42-45, 50, 56) (Page ID #1273-76). There is some evidence that Adams did not circulate these forms to Rogers's co-workers until after his September 11 meeting with Rogers. See R. 55-16 (Emails re Behavioral Checklist) (Page ID #1618-19).
For the purposes of summary judgment, we must credit Rogers's testimony that she had the choice only between taking a severance package or transferring to HAP. Matsushita Elec. Indus. Co. ,
Concurrence in Part
Monica Rogers argues that Henry Ford transferred her to a new position (with the same pay) in retaliation for her EEOC complaint against Henry Ford. Yet she lacks evidence that the person who offered her the transfer-Derick Adams-had any animus toward her. That leaves us with the benign motive Henry Ford proffers: namely, that Adams offered the transfer to defuse the tension between Rogers and the many coworkers who had independently raised concerns about her behavior.
For two reasons, the majority thinks this motive might be pretextual. First, Rogers had been cleared to return to her original position despite her coworkers' concerns. But that suggests at most that Adams was overly cautious, not "that retaliation was the real reason" for his actions. Tingle v. Arbors at Hilliard ,