NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0786n.06
No. 13-6303 FILED
Oct 16, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RUBY BLACKMON,
Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EATON CORPORATION, WESTERN DISTRICT OF
TENNESSEE
Defendant-Appellee.
BEFORE: BOGGS and CLAY, Circuit Judges; COHN, District Judge.*
CLAY, Circuit Judge. Plaintiff Ruby Blackmon appeals from the district court’s grant
of summary judgment in favor of Defendant Eaton Corporation on Plaintiff’s hostile work
environment and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. She also appeals the district court’s decision that the magistrate judge who
issued a report and recommendation concerning Defendant’s summary judgment motion was not
required to recuse himself solely because he had earlier presided over a mediated settlement
conference between the parties. For the reasons set forth below, we REVERSE and REMAND
for further proceedings.
*
The Honorable Avern Cohn, Senior United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 13-6303
BACKGROUND
I. FACTS1
From September 6, 1994 to September 29, 2010, Plaintiff worked at a facility owned by
Defendant in Memphis, Tennessee—a warehouse and distribution center for heavy-duty power
equipment that Defendant manufactured. Beginning in December 2009, Plaintiff’s second-level
manager was Daryl Tetlow. Plaintiff claims that at their first meeting, Tetlow inappropriately
looked at her breasts. This was just the beginning of a continual stream of sexually harassing
behavior that Plaintiff alleges continued the entire time Plaintiff worked under Tetlow. Plaintiff
contends that Tetlow looked at her breasts “whenever he was close enough to do so . . . each and
every time he was near [her].” (R. 58-1, Blackmon Decl., at 446.) More specifically, Plaintiff
stated that “Tetlow would look and stare at [her] breasts in a sexual manner, sometimes quickly,
between 3–10 times a week” between December 2009 and September 2010. (Id.) Plaintiff
stated that Tetlow’s conduct affected her work “not only because it made [her] uncomfortable
and was offensive, but [also because she] was always looking to see if [Tetlow] was near.
[Plaintiff] also changed how [she] would dress at work to try and make sure [Tetlow] could not
see [Plaintiff’s] breasts . . . .” (Id.)
On or about February 9, 2010, Plaintiff asserts that Tetlow stared at her breasts in a
particularly aggressive manner. Plaintiff turned away, but Tetlow apparently approached
Plaintiff and rubbed her back “in a sexual way.” (Id. at 447.) Plaintiff could also feel Tetlow’s
breath on her neck and ear. Plaintiff told Tetlow not to touch her any more. This was not a
unique occurrence. According to Plaintiff, Tetlow often rubbed her back and breathed on her
1
For the reasons addressed in Part II of the Discussion, we draw the facts from the full
record in this case, including the declaration Plaintiff submitted along with her objections to the
magistrate judge’s report and recommendation.
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neck when Tetlow approached Plaintiff in her work area. Plaintiff allegedly reported the
February 9, 2010 incident to corporate headquarters, but nothing was done.
Later on February 9, 2010, Kimberly Hood, then the Human Resources Manager at the
Memphis facility, heard two people yelling outside her office. Hood opened her door and saw
Plaintiff and Tetlow having an argument. Tetlow ordered Plaintiff back to her work station, but
Plaintiff entered Hood’s office and asked to make a complaint. Hood asserts that Plaintiff
complained that Tetlow “was treating her like a child and she didn’t like it.” (R. 23-2, Hood
Decl., at 95.) After several minutes, Plaintiff left Hood’s office and returned to work.
About an hour later, Hood received a report that Plaintiff was in the bathroom crying.
Hood went to the bathroom, found Plaintiff, and took her back to Hood’s office. Hood states that
Plaintiff again complained that Tetlow was treating her like a child, but also reported that Tetlow
was sexually harassing her. Hood was surprised by this since she had never personally witnessed
Tetlow harassing Plaintiff, nor had Hood heard reports of similar behavior by Tetlow. Plaintiff
told Hood that Tetlow had been staring at her chest. Hood, though, thought this was more likely
due to reports of Plaintiff keeping a cell phone hidden in her shirt—a violation of company rules.
Hood asserts that Plaintiff did not report any other unwanted advances apart from Tetlow’s
staring. Later that day, Angela Scott, another employee of Defendant’s, approached Hood and
reported that Tetlow had been staring at her breasts as well. According to Hood, Scott later
confessed that Plaintiff had asked her to lie about Tetlow’s conduct. Scott herself denies making
such a confession.
Hood started an investigation of Plaintiff’s claim. According to Hood, Tetlow denied
staring at Plaintiff’s chest, but noted that several employees had reported that Plaintiff was
secreting a cell phone in her blouse while on the job. Plaintiff asserts that she never violated
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Defendant’s cell phone policy. Based on the reports Hood had received about Plaintiff’s alleged
cell phone use, as well as Hood’s conversations with Scott and Tetlow, Hood concluded that
Plaintiff’s complaint of sexual harassment “was an effort to deflect attention away from
[Plaintiff’s] own improper behavior by making a false accusation against [Tetlow].” (Id. at 97.)
No disciplinary action was taken against Tetlow.
Just three days after the February 9, 2010 incident, Tetlow summoned Plaintiff to his
office to discuss a disciplinary write-up. When Plaintiff refused to sign the write-up, thinking it
entirely unwarranted, Tetlow allegedly “ran around the office hollering at [Plaintiff] and telling
[her] to get out to the shop floor and go back to work, even though it was time for [Plaintiff] to
go home.” (R. 58-1, Blackmon Decl., at 448.) Plaintiff once again approached Hood and asked
to “file a harassment complaint [against Tetlow] for running behind [Plaintiff] hollering and
screaming about errors [Plaintiff] had not made.” (Id.) Hood informed Plaintiff that this conduct
did not constitute harassment.
Later in February 2010, Plaintiff moved to a lower-ranking position than her previous job
as a verification clerk. In a letter to Plaintiff from Hood, Hood stated that Defendant was
transitioning from having three employees at Plaintiff’s level to having only one. Plaintiff had
apparently been given the opportunity to apply for the single position, but told Hood that she was
not interested in the job.
In March 2010, Plaintiff lodged another complaint about Tetlow’s conduct. Plaintiff
claims she told “Susan in Inventory . . . about [] Tetlow staring at [her] breasts and breathing on
[her] ear and neck, and about [Tetlow] rubbing [her] back.” (Id.) Plaintiff never heard any
response to her complaint. However, Plaintiff asserts that she was given a poor evaluation by
Tetlow following this complaint. And beginning in April or May 2010, Plaintiff claims that
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Tetlow gave her new and demeaning job responsibilities, including “clean[ing] up work stations,
empty[ing] garbage cans at the work stations and outside, . . . clean[ing] the entrance windows,
clean[ing] the windows at the far end of the building, and sweep[ing] the cigarette butts outside.”
(Id. at 449.) Plaintiff asserts that she told Hood about these new duties, and although Hood
allegedly agreed that Plaintiff should not be performing them, Hood did nothing to remedy the
situation.
In total, Plaintiff claims she made approximately ten reports concerning Tetlow’s
behavior: four reports to Hood in February, March, May, and June 2010; four reports around the
same times to an administrative manager; and two reports to Lamont Poke, Plaintiff’s immediate
supervisor, in August and September 2010. Plaintiff asserts that when she complained to Poke in
August 2010, Poke responded that “he liked breasts.” (Id. at 450.)
Plaintiff’s fifteen years working for Defendant came to an end in September 2010. On
September 24, 2010, Stephanie Jones, a senior receiver in the Memphis facility, was working in
what was known as the “FedEx line.” Plaintiff, who was working at the other end of the floor,
confronted Jones. As Jones stated in her declaration, Plaintiff “walked towards [Jones] and said
‘Niggers’ while moving into [Jones’] work area.” (R. 23-4, Jones Decl., at 110.) Poke and
Jennifer Florence, a Human Resources Development Program Participant, questioned Plaintiff
and Jones concerning the altercation. Once Jones reported that Plaintiff had used a racial slur,
Poke and Florence excused Jones from the meeting so they could speak with Plaintiff alone.
During this portion of the meeting, Plaintiff repeated the slur several times. Plaintiff admits that
she uttered this slur during the meeting, but asserts she only did so in the process of establishing
that she had not said it to Jones. Poke, on the other hand, asserts that Plaintiff “provided
numerous examples of how she uses” the slur. (R. 23-3, Poke Decl., at 107.) Poke further
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asserts that Plaintiff refused to stop using the slur despite Poke’s and Florence’s entreaties.
Florence eventually told Plaintiff that her use of the word was making Florence uncomfortable.
Florence and Poke reported these events to Hood. Based on the information Florence and
Poke gave, Hood came to the conclusion that Plaintiff had violated Defendant’s Harassment-Free
Workplace Policy and should therefore be terminated. Hood forwarded her recommendation to
four high-level employees who approved Hood’s conclusions. On September 29, 2010, Hood
and Tetlow met with Plaintiff and told her that she was fired. Hood asserts that Plaintiff first
denied using the slur, then said “if I used that racial slur and I’m speaking to my same race, it’s
not a racial slur.” (R. 23-2, Hood Decl., at 98.) Plaintiff became extremely agitated and was
eventually escorted out of the building. Plaintiff’s long relationship with Defendant was over.
II. PROCEDURAL HISTORY
After her termination, Plaintiff filed charges with the EEOC, which issued a notice of
right to sue on July 7, 2011. Plaintiff then filed a pro se complaint in the United States District
Court for the Western District of Tennessee on September 28, 2011. In October 2012, Defendant
filed a motion for summary judgment. While the motion for summary judgment was sub judice,
the parties filed a joint motion asking the court to refer the case to the assigned magistrate judge
for a mediated settlement conference. The district court granted the motion and the parties held a
settlement conference with the magistrate judge on January 7, 2013. The conference involved ex
parte discussions between the magistrate judge and each party. Plaintiff claims that during the
conference, the magistrate judge said things that led Plaintiff to believe that the magistrate judge
had “made up his mind about [the] case.” (R. 58-1, Blackmon Decl., at 445–46.) The
conference did not produce a resolution of the case.
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After the settlement conference had taken place, the district court sua sponte referred
Defendant’s summary judgment motion to the same magistrate judge for a report and
recommendation. Prior to this, the case had not been referred to the magistrate judge for any
purpose other than the settlement conference. The magistrate judge recommended that the
district court grant Defendant’s motion in full. See Blackmon v. Eaton Corp., No. 11-CV-2850,
2013 WL 4750078, at *8–21 (W.D. Tenn. Sept. 3, 2013). After the report and recommendation
was issued, Plaintiff retained counsel for the first time in the litigation and filed objections.
Among these objections, Plaintiff asserted that the magistrate judge had “an inherent conflict of
interest in serving both as mediator and as a Judge to determine facts and law in the same
matter.” (R. 58, Pl.’s Objs., at 432.) On September 3, 2013, the district court overruled all of
Plaintiff’s objections, adopted the report and recommendation, and granted Defendant’s motion
for summary judgment. See Blackmon, 2013 WL 4750078, at *1–8. This appeal timely
followed.
DISCUSSION
I. TITLE VII CLAIMS
The district court rejected both of Plaintiff’s Title VII claims—for hostile work
environment and retaliation—on summary judgment. We review this decision de novo. See
Shazor v. Prof’l Transit Mgmt., 744 F.3d 948, 955 (6th Cir. 2014). Summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In reviewing the
district court’s grant of summary judgment, this Court must view all the facts and the inferences
drawn therefrom in the light most favorable to the nonmoving party.” Birch v. Cuyahoga Cnty.
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Probate Ct., 392 F.3d 151, 157 (6th Cir. 2004). With this standard in mind, we address each of
Plaintiff’s Title VII claims in turn.
A. Hostile Work Environment
“A violation of Title VII is established if discrimination based on sex has created a
hostile or abusive work environment.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th
Cir. 2008) (internal quotation marks omitted). To prevail on a hostile work environment claim, a
plaintiff must establish: “(1) she belonged to a protected group, (2) she was subject to
unwelcome harassment, (3) the harassment was based on [sex], (4) the harassment was
sufficiently severe or pervasive to alter the conditions of employment and create an abusive
working environment,” and (5) the employer is liable for the harassment. Williams v. CSX
Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011). Where the harasser is a supervisor,2 the plaintiff
may establish employer liability “based on either a supervisor’s participation in the harassment
that created the hostile work environment (subject to an affirmative defense [if no tangible
employment action occurred]), or [the employer’s] negligence in discovering or remedying
harassment by [the plaintiff’s] coworkers.” Waldo v. Consumers Energy Co., 726 F.3d 802, 813
n.2 (6th Cir. 2013) (internal quotation marks and emphases omitted).
The parties only contest the fourth element of this test—whether the workplace was
“permeated with discriminatory intimidation, ridicule or insult sufficiently severe or pervasive to
alter the conditions of employment.” Hawkins, 517 F.3d at 333 (internal quotation marks
omitted). This determination “is not susceptible to a mathematically precise test.” Waldo, 726
F.3d at 814 (internal quotation marks omitted). Courts consider a range of factors, including “the
2
The parties do not dispute that Tetlow was a supervisor—that is, someone “empowered
by the employer to take tangible employment actions against” Plaintiff. Vance v. Ball State
Univ., 133 S. Ct. 2434, 2439 (2013).
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frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Barrett v. Whirlpool Corp., 556 F.3d 502, 515 (6th Cir. 2009)
(internal quotation marks omitted). “[T]he issue is not whether each incident of harassment
standing alone is sufficient to sustain the cause of action in a hostile environment case, but
whether—taken together—the reported incidents make out such a case.” Williams v. Gen.
Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999).
Here, genuine issues of fact precluded the district court from holding that Plaintiff could
not show that the harassment she suffered was severe or pervasive. Read in the light most
favorable to Plaintiff, the record shows that Tetlow—Plaintiff’s supervisor—stared at her breasts
nearly every time the two came into contact for the ten months between December 2009 and
September 2010. On more than one occasion, Tetlow paired his offensive staring with offensive
physical contact, rubbing Plaintiff’s back and breathing on her neck. We have previously “made
clear that harassment involving an element of physical invasion is more severe than harassing
comments alone.” Hawkins, 517 F.3d at 334 (internal quotation marks omitted). Plaintiff’s
complaints to the human resources department fell on deaf ears. When Plaintiff complained
about Tetlow to Poke, another supervisor of Plaintiff’s, Poke callously told her that he too liked
breasts. And Tetlow took his own revenge on Plaintiff by assigning her to demeaning duties far
below her pay grade. This course of conduct caused Plaintiff to seek mental health treatment and
to go on antidepressants. Plaintiff ceased feeling comfortable at her work station, and constantly
had to be on guard to see if Tetlow was nearby. A jury should have the opportunity to consider
this entire course of conduct as a whole and determine whether it was severe or pervasive enough
to alter the terms of Plaintiff’s employment.
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The cases Defendant relies upon do not compel the opposite result. The harassment in
this case continued for a longer period of time than the offensive conduct in Burnett v. Tyco
Corp., 203 F.3d 980, 983 (6th Cir. 2000), and Black v. Zaring Homes, Inc., 104 F.3d 822, 824
(6th Cir. 1997). The harassment in Bowman v. Shawnee State Univ., 220 F.3d 456 (6th Cir.
2000), was infrequent, with each incident separated from the other by many months. See id. at
459, 464. Plaintiff, by contrast, suffered a continual barrage of offensive stares and touches for
the ten months she worked under Tetlow.
Plaintiff has therefore established a genuine issue of fact as to this element of her claim
for hostile work environment. Since this is the only element that Defendant contests, we must
remand for a jury to hear this claim.
B. Retaliation
Title VII makes it unlawful for an employer to retaliate against an employee because the
employee has engaged in conduct protected by Title VII. See 42 U.S.C. § 2000e-3(a). Where a
plaintiff has no direct evidence of retaliation, she must proceed on summary judgment via the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First,
the plaintiff must establish a prima facie case for retaliation by showing that “(1) he engaged in
activity protected by Title VII; (2) his 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, 746 F.3d 714, 730 (6th Cir. 2014) (internal quotation
marks omitted). The fourth element “requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
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The parties dispute only the causation element of Plaintiff’s prima facie claim. The
record on this point, read in the light most favorable to Plaintiff, shows that a genuine issue of
fact exists. Plaintiff made approximately ten reports concerning Tetlow’s behavior: four reports
to Hood in February, March, May, and June 2010; four reports around the same times to an
administrative manager; and two reports to Lamont Poke, Plaintiff’s immediate supervisor, in
August and September 2010. The record also reflects that Tetlow gave Plaintiff a negative
evaluation and assigned her significantly less desirable work after she lodged a complaint about
him in March 2010. These facts, combined with the close temporal proximity between the last of
Plaintiff’s complaints and her termination, suffice to establish the causation element of her prima
facie case. See Montell v. Diversified Clinical Servs., Inc., 757 F.3d 497, 505–08 2014 (6th Cir.
2014).
The burden now shifts to Defendant to articulate a legitimate nonretaliatory reason for
terminating Plaintiff. See Laster, 746 F.3d at 730. Defendant has done so. Plaintiff’s use of a
racial slur in her meeting with Poke and Florence violated Defendant’s Harassment-Free
Workplace Policy and therefore constituted a nonretaliatory reason for her termination. See
Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 558 (6th Cir. 2009).
The burden thus shifts back to Plaintiff to establish that this justification is pretextual.
See Laster, 746 F.3d at 730. “Plaintiff can do this by showing (1) that the proffered reasons had
no basis in fact, (2) that the proffered reasons did not actually motivate her termination, or
(3) that they were insufficient to motivate discharge.” Shazor, 744 F.3d at 959 (internal
quotation marks and alteration omitted). Plaintiff points out that during the meeting with Poke
and Florence, both Plaintiff and Jones used racial slurs, yet only Plaintiff was disciplined for it.
The disparate treatment of Plaintiff and Jones for substantially similar conduct raises an issue of
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fact for the jury to decide regarding the truth of Defendant’s proffered justification. See Weigel
v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 378 (6th Cir. 2002).
Nor does the honest-belief rule assist Defendant under these circumstances. In essence,
this rule means that a “dispute over the facts upon which the discharge was based,” Seeger v.
Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th Cir. 2012) (internal quotation marks omitted),
will not suffice to establish pretext if the employer “reasonably relied on the particularized facts
that were before it at the time the decision was made.” Michael v. Caterpillar Fin. Servs. Corp.,
496 F.3d 584, 599 (6th Cir. 2007) (internal quotation marks omitted). Here, Plaintiff admitted
the relevant facts—that she repeated a racial slur in a meeting about the use of that same slur.
Defendant has not asserted that its investigation failed to turn up evidence that Jones had used
the slur in the same meeting. It is the disparate treatment of Plaintiff and Jones that establishes
pretext—not a dispute over the facts of what took place in the meeting. The jury will have the
opportunity to weigh the evidence and decide if retaliation was a but-for cause of Plaintiff’s
termination.
II. CONFLICT OF INTEREST
In addition to her appeal on the merits of her Title VII claims, Plaintiff asserts that once
the magistrate judge presided over a mediated settlement conference between the parties, that
same magistrate judge was disqualified from later issuing a report and recommendation on
Defendant’s motion for summary judgment. In support, Plaintiff relies on 28 U.S.C. § 455(a)
and (b)(1), the statute governing disqualification of federal justices, judges, and magistrate
judges. The district court rejected Plaintiff’s argument, and we review this decision for abuse of
discretion. See United States v. Adams, 722 F.3d 788, 837 (6th Cir. 2013). We agree with the
district court concerning the proper interpretation of § 455.
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Disqualification Under 28 U.S.C. § 455
Section 455 requires any judge to disqualify himself “in any proceeding in which his
impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), or “[w]here he has a personal
bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.” 28 U.S.C. § 455(b)(1). Section 455(a) thus demands recusal
“where a reasonable person with knowledge of all the facts would conclude that the judge’s
impartiality might reasonably be questioned. This standard is objective and is not based on the
subjective view of a party.” United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993)
(internal quotation marks omitted). The “bias or prejudice” of § 455(b)(1) “means a favorable or
unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it
rests upon knowledge that the subject ought not possess, or because it is excessive in degree.”
Williams v. Anderson, 460 F.3d 789, 814 (6th Cir. 2006) (internal quotation marks and
alterations omitted).
Both § 455(a) and (b)(1) are subject to the so-called “extrajudicial source doctrine,”
which vaguely refers to facts the judge learns outside of court proceedings. See Liteky v. United
States, 510 U.S. 540, 553–55 (1994). “[A]n extrajudicial source for a judge’s opinion about a
case or a party is neither necessary nor sufficient to require recusal.” Bell v. Johnson, 404 F.3d
997, 1005 (6th Cir. 2005). However, knowledge the judge gains from extrajudicial sources is
“the only common basis” for disqualification under § 455. Liteky, 510 U.S. at 551. If the
extrajudicial source doctrine does not apply, the judge’s opinions “do not constitute a basis for a
bias or partiality motion unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Id. at 555.
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Applying these standards, the district court rejected Plaintiff’s objection to the magistrate
judge’s report and recommendation based on § 455(a) and (b)(1). The court held that there was
no inherent conflict where a magistrate judge presides over a settlement conference, and then
acts as an adjudicator. See Blackmon, 2013 WL 4750078, at *4. The court further held that the
magistrate judge’s participation in the settlement conference was not extrajudicial, and that
Plaintiff had not pointed to the sorts of extreme facts that would make recusal appropriate in the
absence of the extrajudicial source doctrine. See id. Although we do not sanction the district
court’s referral to the same magistrate judge who presided over mediation between the parties,
we hold that the district court did not abuse its discretion in its interpretation of § 455.
First, we cannot find authority for the proposition that participation in a mediated
settlement conference categorically disqualifies a judge from later deciding a motion in that
same case. See Rehkoph v. REMS, Inc., 40 F. App’x 126, 130 (6th Cir. 2002); see also, e.g., SEC
v. ING USA Annuity & Life Ins. Co., 360 F. App’x 826, 828 (9th Cir. 2009) (“There is no
authority for the proposition that judges must recuse themselves if they served as mediators in a
related proceeding.”); Black v. Kendig, 227 F. Supp. 2d 153, 155 (D.D.C. 2002) (collecting
cases). Indeed, the Federal Rules of Civil Procedure contemplate that judges can play a role in
settlement discussions. See Fed. R. Civ. P. 16(a)(5), (c)(2)(I). The Code of Conduct for federal
judges also allows judges to participate in ex parte communications with parties “in an effort to
mediate or settle pending matters,” Canon 3(A)(4)(d), provided that the parties consent—
something they had no opportunity to do in this case. We stress that judges are free to recuse
themselves from matters after they have presided over mediation. See Kearny v. Milwaukee
Cnty., No. 05-C-834, 2007 WL 3171395 (E.D. Wis. Oct. 26, 2007). But § 455 does not
automatically compel disqualification in every case.
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Second, we do not see facts in the record that would cause a reasonable person to
question the magistrate judge’s impartiality, or would suggest that the judge had a personal bias
or knowledge of contested facts.3 Plaintiff points to “confidential information [and] information
that is not otherwise in the record,” and asserts that the magistrate judge must have come into
contact with such material. Appellant’s Br. at 17. But the magistrate judge’s report and
recommendation does not reveal knowledge of facts or confidential information not contained in
the summary judgment papers. And Plaintiff did not attempt to supplement the factual record by
using the local rule designed to facilitate disclosure of otherwise confidential communications
that took place during mediation. See W.D. Tenn. L.R. 16.1(c)(2)(B). Plaintiff asserts that the
magistrate judge spoke ex parte with Defendant and expressed his opinions about the case, but
these facts alone are not enough to suggest a personal bias in favor of one party or another.
“[E]x parte contact does not, in itself, evidence any kind of bias.” Getsy v. Mitchell, 495 F.3d
295, 311 (6th Cir. 2007) (internal quotation marks omitted).
Furthermore, even if Plaintiff had shown a violation of § 455, we believe she has
obtained sufficient relief. Section 455 “neither prescribes nor prohibits any particular remedy for
a violation of th[e] duty [it imposes]. Congress has wisely delegated to the judiciary the task of
fashioning the remedies that will best serve the purpose of the legislation.” Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 862 (1988). In this case, the magistrate judge issued a
nonbinding report and recommendation that the district court reviewed de novo. See 28 U.S.C.
§ 636(b)(1). We in turn review the district court de novo, and have considered the facts Plaintiff
introduced along with her objections to the report or recommendation. This is not a case where,
for example, the magistrate judge’s decision is reviewable only for clear error, see Fed. R. Civ.
3
We do not rule on the question of whether the magistrate judge’s participation in the
mediated settlement conference was extrajudicial.
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P. 72(a), nor one where Plaintiff forfeited an argument by failing to properly object to the report
and recommendation. See Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004) (en banc).
Under these circumstances, the two levels of de novo review Plaintiff received—first from the
district court and now from us—would suffice to remedy a violation of § 455. See Selkridge v.
United of Omaha Life Ins. Co., 360 F.3d 155, 171–72 (3d Cir. 2004).
CONCLUSION
Although we hold that the magistrate judge’s conduct in this case did not require recusal
under § 455, this does not mean that we approve of the district court’s referral of Defendant’s
dispositive motion to the same magistrate judge who presided over a mediated settlement
conference. However, because on the merits, Plaintiff’s appeal succeeds, we REVERSE the
judgment of the district court and REMAND for further proceedings consistent with this
opinion.
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