NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0515n.06
Case No. 14-2401
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 21, 2015
TRICIA BASCH, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
KNOLL, INC., ) MICHIGAN
)
Defendant-Appellee. )
)
)
BEFORE: CLAY and SUTTON, Circuit Judges; WATSON, District Judge.*
SUTTON, Circuit Judge. After employing Tricia Basch for over a decade, Knoll, Inc., a
furniture maker, discharged her. Basch filed this lawsuit, raising several employment-related
grievances against Knoll. The district court granted Knoll’s motion for summary judgment on
all of Basch’s claims. Basch challenges one ruling on appeal: the district court’s rejection of her
retaliation claim under the Family Medical Leave Act (FMLA). We affirm.
Basch held various jobs at Knoll during her time there. She took various approved leaves
under the FMLA during her time there. And she was warned and disciplined for various issues,
including absenteeism, aggressive behavior, and insubordination during her time there.
*
The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting
by designation.
Case No. 14-2401
Tricia Basch v. Knoll, Inc.
At the time of the discharge, Basch worked as a coordinator in the “paint lines”
department. R. 59 at 1. Her primary duty was “kitting”—organizing paint orders into baskets to
prepare them for painting. R. 40-1 at 4, 9. On November 9, 2011, she delivered a kitted basket
to a co-worker, who rejected the basket because it was arranged incorrectly. The co-worker took
the issue to Basch’s supervisor, Kristie Walker. Raising her voice, Walker told Basch to re-kit
the basket. Without re-kitting the basket, Basch walked away and attempted to call two other
managers over the next several minutes while Walker repeatedly told her to re-kit the basket.
Basch never did so.
Faced with Basch’s continued refusal, Walker took Basch to the human resources
department and asked for assistance from other managers. One manager told Basch that she
needed to do what she was told. Basch, who still had not made any effort to re-kit the basket,
asked to take FMLA leave due to stress (triggered by her encounter with Walker). The plant’s
human resources manager told Basch that she could not take leave because she was being
suspended. Two days later, the company discharged Basch.
Basch filed this lawsuit, bringing nine claims under a variety of laws: the Americans
with Disabilities Act, the FMLA, Title VII, and Michigan state law. The district court granted
summary judgment to Knoll across the board. Basch v. Knoll, Inc., No. 1:13-CV-76, 2014 WL
911865, at *1 (W.D. Mich. Mar. 10, 2014). Basch appeals only the FMLA claim. We review
afresh a district court’s grant of summary judgment, Int’l Union v. Cummins, Inc., 434 F.3d 478,
483 (6th Cir. 2006), asking whether Knoll is entitled to judgment as a matter of law because “no
genuine dispute as to any material fact” stands in the way, even after giving Basch the benefit of
all reasonable inferences from the record. Fed. R. Civ. P. 56(a).
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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
As relevant here, the FMLA says that “[i]t shall be unlawful for any employer to
discharge . . . any individual for opposing any practice made unlawful by this subchapter.”
29 U.S.C. § 2615(a)(2). Basch claims she was fired for trying to take FMLA leave “[b]ecause of
a serious health condition that ma[de] [her] unable to perform the functions of [her] position.”
29 U.S.C. § 2612(a)(1)(D). A burden-shifting test applies to such claims. Edgar v. JAC Prods.,
Inc., 443 F.3d 501, 508 (6th Cir. 2006); see McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under that familiar test, Basch first must make out a prima facie case of retaliation.
Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). If she does so, Knoll
must articulate a legitimate, nondiscriminatory reason for the alleged retaliatory act. Id. And if
the company gives such a reason, the employee must show that the employer’s rationale is
pretextual. Id.
Like the district court before us, we conclude that Basch has not met her burden in the
first and last part of the analysis. She did not make out a prima facie case of retaliation, and she
did not show that Knoll’s rationale for discharge (insubordination) is pretextual.
Prima facie case. In order to make out a prima facie case of retaliation, Basch must
show: (1) that she “availed herself of a protected right under the FMLA”; (2) that she “suffered
an adverse employment action”; and (3) “that there was a causal connection between the exercise
of her rights under the FMLA and the adverse employment action.” Edgar, 443 F.3d at 508. At
a minimum, she comes up short on causation.
She has not shown a causal connection between the exercise of her FMLA rights and the
termination of her employment. Even if we assume for the sake of argument that temporal
proximity (between a protected act and an adverse action) by itself may establish causation at the
prima facie phase of a case, that could only be “[w]here an adverse employment action occurs
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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
very close in time after an employer learns of a protected activity.” Mickey v. Zeidler Tool &
Die Co., 516 F.3d 516, 525 (6th Cir. 2008). That did not happen here.
Any such claim of proximity would look to one or the other of the certifications for
intermittent leave (May 2009 and May 2011), as that was when the series of FMLA events began
and when Knoll “learn[ed] of [the] protected activity.” Id. (emphasis added). When “some
time”—here, two-and-a-half years or six months—“elapses between when the employer learns of
a protected activity and the subsequent adverse employment action, the employee must couple
temporal proximity with other evidence of retaliatory conduct to establish causality.” Id. Basch
has no such “other evidence.” Knoll repeatedly granted Basch’s FMLA requests over a period of
two-and-a-half years. And Basch provides no additional evidence that Knoll discharged her
because she declared an intent to take FMLA leave on November 9th. In the absence of a
cognizable claim of causation, her prima facie case must fail.
Pretext. Also unavailing is her claim of pretext. After Knoll offered a legitimate,
nondiscriminatory rationale for discharging Basch—“insubordinat[ion] to [her] supervisor” and a
“prior history of insubordination,” R. 34-2 at 2—Basch was required to show that these
explanations were pretextual. She failed to do so.
Basch could show that Knoll’s insubordination rationale was pretextual in one of three
ways: that it “(1) ha[d] no basis in fact; (2) did not actually motivate the action; or (3) w[as]
insufficient to warrant the action.” Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th
Cir. 2012). As to the first possibility, she did not demonstrate that Knoll’s reason for discharging
her had no basis in fact. Mike Sale, the highest authority at the plant, made the discharge
decision based on discussions with management staff who informed him of the November 9th
incident. R. 34-1 at 2–3. Sale was concerned that such insubordination “could . . . idle 15 or
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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
more employees for a period of time”—a fair basis in fact for discharging Basch. Id. at 2.
Basch’s disciplinary history also provided grounds for discharge. Id. at 3. Some highlights of
that history include: insubordination (for which she received a written warning), R. 33-3 at 2;
“abusive, aggressive, threatening and inappropriate” behavior (for which she was suspended for
three days), R. 32-4 at 2; and absenteeism twice in one month (for which she received two
warnings), R. 32-5 at 2; R. 33-1 at 2.
As to the second possibility, Basch failed to demonstrate that something other than
insubordination motivated the discharge. Basch points to her FMLA status and the proximity of
her FMLA claims to her termination. But even if we accept for the sake of argument that
temporal proximity could establish a prima facie case, it “cannot be the sole basis for finding
pretext.” Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012).
As to the third possibility, Basch failed to show that her insubordination was insufficient
to warrant her discharge. Under Knoll’s rules of conduct, “[i]nsubordination, including failure to
carry out definite instructions or assignments” is an activity that is considered “extremely serious
misconduct [that] may result in immediate discharge.” R. 32-2 at 2. Insubordination alone thus
could rightly lead to a discharge.
Attempting to fend off this conclusion, Basch raises several contrary arguments. First, in
support of her prima facie case, she argues that proximity in time between her discharge and her
use of FMLA leave establishes causation. More specifically, she contends that the proper
measure of proximity is two days—the time between her final request for FMLA leave and her
discharge. Appellant’s Br. 16. But that is the wrong yardstick. Knoll did not “learn[] of [her]
protected activity,” Mickey, 516 F.3d at 525, on November 9th. Her employer knew that Basch
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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
had FMLA intermittent leave certification and had used it to take leave over the past several
years.
Second, Basch submits that three months—from her August 2011 week of leave to her
November 2011 discharge—is the proper measure of proximity for purposes of her prima facie
case. Even if we accepted Basch’s timeline, our conclusion would remain the same. Absent
other evidence, three months does not suffice to support a finding of causation. See Mickey, 516
F.3d at 525. Basch cites no case to the contrary in the FMLA context.
Third, Basch contends that three other incidents support her prima facie claim of
causation. But her version of these events does not “present[] a sufficient disagreement to
require submission to a jury,” and the evidence is “so one-sided” that we must uphold the district
court’s grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52
(1986). She first cites her own statement that “FMLA people [at Knoll] . . . were getting fired
left and right for being on FMLA.” Appellant’s Br. 21; R. 40-1 at 29. But Basch’s own
generalization—absent any corroborating evidence or promise to present it—does not suffice to
survive summary judgment. See Anderson, 477 U.S. at 249.
She adds that Kristie Walker, her supervisor, created a “retaliatory atmosphere” through
various acts. Appellant’s Br. 21. But even if Walker was antagonistic toward Basch, that does
not establish causation between the decision to discharge Basch (made by Mike Sale) and
Basch’s repeated exercise of FMLA rights over a two-and-a-half year period.
Basch adds that Walker used an evaluation form, R. 42-2 at 2, to harass her due to her use
of FMLA leave. Appellant’s Br. 22. This, too, does not work. In her deposition, Basch
indicated that Walker and another manager used the evaluation form to alert Basch to some
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Case No. 14-2401
Tricia Basch v. Knoll, Inc.
necessary areas of improvement, that Basch improved in those areas, and that no further mention
was made of the evaluation. R. 40-1 at 37–38.
Fourth, Basch argues that the given reason for her discharge—insubordination—was
pretextual. She claims that she never refused to re-kit the basket, she told Walker that she was
going to do it, and testimony from another co-worker indicates that the incident was “not an
instance of extremely serious misconduct.” Appellant’s Br. 24 (internal quotation marks
omitted). These assertions do not establish pretext. The problem is, Basch does not contest two
critical facts: (1) that Walker told her to re-kit the basket multiple times, and (2) that she never
did so (even if she planned to do so sometime in the future). R. 40-1 at 38–40. That suffices for
a discharge under Knoll’s regulations because it is a “failure to carry out definite instructions or
assignments.” R. 32-2 at 2. Because Basch does not dispute Sale’s view that her disruption had
the potential to force fifteen other employees to stand idle, R. 34-1 at 2, the incident obviously
could have serious consequences.
For these reasons, we affirm.
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