Ericka Peacock Johnson v. Evolent Health LLC

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0110n.06

Case No. 22-5574

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
) Mar 02, 2023
ERICKA PEACOCK JOHNSON,
) DEBORAH S. HUNT, Clerk
Plaintiff - Appellant, )
)
v. ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
)
EVOLENT HEALTH, LLC, WESTERN DISTRICT OF KENTUCKY
)
Defendant - Appellee. )
OPINION
)
)

Before: COLE, GIBBONS, and READLER, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Following her termination, Ericka Peacock

Johnson sued her former employer, Evolent Health LLC, alleging unlawful pregnancy

discrimination under Kentucky law and interference and retaliation with her benefits under the

Family Medical Leave Act (“FMLA”). Johnson appeals the district court’s grant of summary

judgment to Evolent on her claims and its partial denial of her motion to strike. Because Johnson

does not establish a prima facie case of pregnancy discrimination and fails to establish pretext for

Evolent’s proffered reasons for terminating her, we affirm.

I.

Evolent Health LLC (“Evolent”) provides administrative services for healthcare plans,

including services related to payment and reimbursement. The company hired Ericka Peacock—

now Ericka Peacock Johnson—as a Reimbursement Analyst in June 2018. Her responsibilities
No. 22-5574, Johnson v. Evolent Health, LLC

included reviewing reimbursement issues submitted by Evolent’s clients on its “ticket” system.

DE 35-2, Johnson Dep., Page ID 1427.

Johnson worked remotely from Kentucky and reported to Senior Manager Clarice

Maxwell. On Johnson’s 2018 annual performance review, Maxwell rated Johnson’s performance

as a “2” out of a five-point performance scale. To address her performance issues, Maxwell

communicated her concerns and scheduled one-on-one training sessions with Johnson beginning

in September 2019. However, Maxwell again rated Johnson a “2” on her 2019 annual review,

explaining that Johnson “still need[ed] to become more efficient and proficient in the ticket

process” and “improve on fully investigating tickets and doing thorough reviews when initially

reviewing and analyzing tickets.” Id. at Page ID 1437, 1442, 1464-65. At the end of 2019,

Maxwell intended to place Johnson on a performance improvement plan due to these performance

issues.

In December 2019, Evolent started the process of disbanding its Reimbursement team as

part of a company reorganization. Evolent’s Vice President of Configuration, Heather Spencer,

and its Vice President of Implementation, Mary Piecuch, offered Johnson the opportunity to

transfer to the Configuration Team as a Configuration Analyst. Her new responsibilities would

resemble those in her previous role. Johnson agreed to the transfer.

At the end of January 2020, Johnson reached out to Configuration Chief of Staff Blake

Lawson to ask whether there were any updates regarding her transition to the Configuration team.

Lawson told Johnson that she would get more information about her role in the next week or so.

Although Lawson did not follow up, Marie Lindauer, who would become Johnson’s supervisor on

the Configuration Team, emailed Johnson on February 10, 2020, stating that she would share

details about Johnson’s transition when they were available. Lindauer confirmed that Johnson

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No. 22-5574, Johnson v. Evolent Health, LLC

would continue her reimbursement work but would start reporting to Lindauer for “manager

issues” including time-off requests. DE 35-2, Johnson Dep., Page ID 1448, 1468. Lindauer began

approving Johnson’s paystubs, which reflected a pay increase in mid-February 2020.

Meanwhile, Evolent leadership had begun planning a reduction in force (“RIF”). On

February 5, 2020, Director of Talent Kelly Riley and the Talent Team created a spreadsheet of

employees who had received a “2” or lower on their 2019 annual performance review to be

considered for termination based on performance. She put sixty-seven employees on the initial

list, including Johnson. The list provided one column to note whether Evolent would be

“comfortable with [the] impact” of terminating an employee, and one with space for leadership to

comment. DE 40-10, Spreadsheet, Page ID 1260-61. Some comments supported retention, while

others supported termination. Vice President of Talent Management Richard Ventimiglia shared

the spreadsheet with Senior Director of Talent Solutions Melissa Gilliland and Vice President of

Talent Patrick Devlin. He also shared it with Chief Operating Officer of Health Services Scott

Fad, who added a column to note whether an India-based Evolent employee or US-based employee

could backfill a terminated employee, if needed. Ventimiglia sent the revised list back to Gilliland

on February 13, 2020. The list was finalized on February 21, 2020, and suggested thirty-three

employees for termination, including Johnson. The day before the list was finalized, Riley advised

Maxwell of Johnson’s termination and requested that she conduct the termination because Johnson

had not yet transitioned to the Configuration Team.

While Evolent leadership planned its RIF, Johnson requested time off. She emailed

Lindauer on February 14, 2020, asking to take off February 20 and March 20. Lindauer followed

up on Johnson’s request that day, asking her “how important” it was for her to take those days off.

DE 35-2, Emails, Page ID 1473. Johnson disclosed that she was pregnant with twins and needed

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No. 22-5574, Johnson v. Evolent Health, LLC

to attend medical appointments on both days requested. Based on their conversation, Johnson

believed that Lindauer would tell Managing Director of Configuration Suzy Kambic about her

pregnancy, but Lindauer does not recall telling anyone of Johnson’s pregnancy.

Lindauer directed Johnson to contact Human Resources about maternity leave, which

Johnson did that day. Johnson’s email was directed to an inbox managed by Benefits Specialist

Jennifer Waiters and her manager Kristine Dubois. Waiters responded to Johnson, asking for her

estimated due date and providing details to Johnson regarding maternity leave. Waiters then added

Johnson’s name to a tracking spreadsheet for employees seeking maternity leave, which she

managed (and to which her manager Dubois, and Dubois’s manager Mara Jaffa, also had access).

Waiters does not remember having any other discussions with Johnson or learning any additional

details about her or her pregnancy.

On February 24, 2020, a meeting was conducted via phone call between Associate Director

of Talent Solutions Cindy Hargett, Maxwell, and Johnson. Maxwell and Hargett told Johnson that

her position was being eliminated. Confused, Johnson asked about her transition to the

Configuration Team, but Hargett responded that “this” role was being terminated. DE 35-2,

Johnson Dep., Page ID 1457. Johnson then disclosed that she was pregnant. Following Johnson’s

termination, Evolent did not hire any Configuration Analysts in the United States until 2021.

Johnson filed suit in state court in July 2020, alleging pregnancy discrimination under the

Kentucky Civil Rights Act, Ky. Rev. Stat. §§ 344.030(8)(a), 344.040(1)(a), and retaliation and

interference under the FMLA, 29 U.S.C. § 2615(a). Evolent removed the case based on federal

question jurisdiction under 28 U.S.C. § 1331.

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No. 22-5574, Johnson v. Evolent Health, LLC

Discovery ensued. Johnson requested the production of the maternity tracking spreadsheet

after learning about it in Waiters’ deposition, but Evolent refused to provide an unredacted version.

The district court partially granted Johnson’s motion to compel production.

Following discovery but before production of this material, Evolent moved for summary

judgment. Johnson opposed the motion and moved to strike portions of three exhibits attached to

Evolent’s summary judgment motion. She sought to redact the page of her deposition listing her

birthday, redact the declaration of Evolent’s counsel, Melissa Weiss, which explains the “last

modified” date of several exhibits, and redact portions of Kelly Riley’s declaration, which

describes the RIF process and those who participated in it. Johnson also sought leave to file a

supplemental response to the summary judgment motion to address information regarding Waiter’s

maternity tracking spreadsheet.

In its order granting Evolent summary judgment, the district court first construed Johnson’s

motion to strike as a request to redact. Although it granted Johnson’s unopposed request to redact

the page of her deposition listing her birthdate, the court determined that neither of the challenged

declarations created a genuine issue of material fact. It therefore denied Johnson’s motion to redact

both declarations as moot and announced that its order did not rely on the challenged portions of

the declarations. Further, the court also granted Johnson’s unopposed motion to supplement.

The district court granted summary judgment to Evolent on all claims. It found that

Johnson had not established a prima facie case of pregnancy discrimination or that Evolent’s

proffered reasons for terminating her were pretext. It similarly found that, even if Johnson could

establish a prima facie case of FMLA retaliation or interference, she could not establish that

Evolent’s reasons for terminating her were pretextual. The district court entered judgment for

Evolent. This appeal followed.

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No. 22-5574, Johnson v. Evolent Health, LLC

II.

We review the district court’s denial of a motion to strike or redact a declaration for abuse

of discretion. Baker Hughes Inc. v. S&S Chem., LLC, 836 F.3d 554, 560 (6th Cir. 2016).

“A district court abuses its discretion when it relies on clearly erroneous findings of fact, applies

the law improperly, or uses an erroneous legal standard.” United States v. Pembrook, 609 F.3d

381, 383 (6th Cir. 2010) (citation omitted). “Abuse of discretion is defined as a definite and firm

conviction that the trial court committed a clear error of judgment.” United States v. Flowers, 963

F.3d 492, 497 (6th Cir. 2020) (quotation marks and citation omitted).

We review the district court’s grant of summary judgment de novo. Weser v. Goodson,

965 F.3d 507, 513 (6th Cir. 2020). A movant is entitled to summary judgment if it shows that

there is no genuine dispute of any material fact, and that the movant is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). If the nonmovant “fails to properly support an assertion of

fact or fails to properly address another party’s assertion of fact,” the fact may be treated as

undisputed. Fed. R. Civ. P. 56(e)(3). A genuine dispute of material fact exists “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine dispute of material fact

exists, we consider the facts in the light most favorable to the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c).

III.

On appeal, Johnson contends that the district court abused its discretion in denying her

partial motion to strike and that it improperly granted Evolent summary judgment on her claims

of pregnancy discrimination and FMLA interference and retaliation. We review these arguments

in turn.

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No. 22-5574, Johnson v. Evolent Health, LLC

1. Denial of Motion to Redact

Johnson argues that the district court abused its discretion by denying her motion to strike

as moot because it relied on erroneous factual findings—the Weiss and Riley declarations—and

made a clear judgment error. She also claims that Evolent continues to rely on these declarations

on appeal. In response, Evolent argues that the district court correctly denied Johnson’s motion as

moot because the court did not rely on the challenged declarations on summary judgment. It denies

committing any discovery violations and argues that any challenged actions it took during

discovery were harmless. Finally, Evolent denies relying on these declarations on appeal,

contending that Riley’s position as a decisionmaker in the RIF process is not dispositive to

Johnson’s claims.

The district court did not abuse its discretion in denying Johnson’s motion to strike the

declarations because it expressly did not rely on their content. See, e.g., Hamilton Cnty.

Emergency Commc’ns Dist. v. Level 3 Commc’ns, LLC, 845 F. App’x 376, 389–90 (6th Cir. 2021)

(finding the district court’s denial proper when it did not rely on challenged declaration to decide

summary judgment). It is therefore immaterial whether Evolent improperly relied on these

declarations to support its summary judgment motion. The court also determined that the

declarations did not create genuine issues of material fact that would influence its decision on

summary judgment. Thus, any conceivably improper denial of the motion was harmless; the court

effectively granted Johnson the relief she sought by disregarding the substance of both

declarations. See, e.g., Reed v. City of Memphis, 735 F. App’x 192, 197 (6th Cir. 2018) (“Because

the district court disregarded the affidavits’ content when ruling on the parties’ motions for

summary judgement, any conceivable error in failing to strike the filings was harmless.”); cf. Hicks

v. Concorde Career Coll., 449 F. App’x 484, 487 (6th Cir. 2011) (finding, “at most,” harmless

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No. 22-5574, Johnson v. Evolent Health, LLC

error by district court’s failure to rule on motion to strike because “the exhibit was irrelevant to

the claims at issue and the district court did not rely on it in adjudicating [the] summary judgment

motion”). Similarly, we need not refer to nor rely on these documents to reach our decision on

whether summary judgment is proper.

2. Pregnancy Discrimination Claim

Johnson asserts her pregnancy discrimination claim under the Kentucky Civil Rights Act

(“KCRA”), which prohibits discrimination based on an employee’s sex, including pregnancy. See

Ky. Rev. Stat. §§ 344.030(8)((A), 344.040(1)(a). The KCRA is interpreted consistently with Title

VII and federal law. See Spees v. James Marine, Inc., 617 F.3d 380, 389 (6th Cir. 2010) (citing

Ammerman v. Bd. of Educ., 30 S.W.3d 793, 797–98 (Ky. 2000)). As Johnson supports her claim

with circumstantial evidence, it is analyzed under the burden-shifting framework articulated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Prebilich-Holland v. Gaylord Ent.

Co., 297 F.3d 438, 442–44 (6th Cir. 2002) (applying McDonnell Douglas framework).

To survive summary judgment on a pregnancy discrimination claim, the McDonnell

Douglas framework requires that Johnson first establish a prima facie case of discrimination by

showing that (1) “she was pregnant”; (2) “she was qualified for her job”; (3) “she was subjected

to an adverse employment decision”; and (4) “there is a nexus between her pregnancy and the

adverse employment decision.” Id. at 442 (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d

651, 658 (6th Cir. 2000)) (internal quotation marks omitted). If a prima facie case is established,

the burden shifts to Evolent “to articulate a legitimate, nondiscriminatory reason for the adverse

employment action.” Martin v. Barnesville Exempted Vill. Sch. Dist. Bd. of Educ., 209 F.3d 931,

934 (6th Cir. 2000). Once a nondiscriminatory reason is asserted, the burden returns to Johnson

to show that Evolent’s proffered reason was pretextual. Id.

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Evolent only challenges Johnson’s ability to satisfy the fourth prong of the prima facie case

test,1 arguing that she cannot establish a nexus between her pregnancy and her termination because

no one involved in Johnson’s termination decision or the RIF process knew she was pregnant.

Johnson argues that she can establish a nexus by showing that the Evolent decisionmakers were

aware of her pregnancy at the time of her termination, which occurred days after the disclosure of

her pregnancy.

Temporal proximity between the announcement of an employee’s pregnancy and that

employee’s termination can sufficiently establish a nexus between the events. See Asmo v. Keane,

Inc., 471 F.3d 588, 594 (6th Cir. 2006). Even so, the individuals who decided to terminate Johnson

must still have “had actual knowledge of her pregnancy at the time that the adverse employment

action was taken” for a nexus to exist. Prebilich-Holland, 297 F.3d at 444.

The timing of the decision to terminate Johnson is disputed. Evolent asserts that the

decision to terminate Johnson’s employment was made when her name was initially added to the

spreadsheet including all potential RIF terminations, one week before Johnson disclosed her

pregnancy to Lindauer and Waiters. A reasonable jury, however, could find that the decision to

terminate Johnson was made on February 20 or 21, when the list was finalized.

1
The district court did not apply the heightened standard for RIF cases set out in Barnes v.
GenCorp, 896 F.2d 1457, 1465 (6th Cir. 1990), requiring an employee terminated as part of an
RIF to present “additional direct, circumstantial, or statistical evidence tending to indicate” that
she was discharged for “impermissible reasons,” because Evolent did not argue for its application.
With a similar silence on appeal, we find it unnecessary to address whether the heightened standard
is applicable, as Johnson’s claims do not survive under either standard. See, e.g., United States v.
McKenzie, 33 F.4th 343, 350 (6th Cir. 2022) (withholding resolution as to application of a lower
versus heightened standard where plaintiff fails under either); EEOC v. Lucent Techs. Inc., 226 F.
App’x 587, 591 (6th Cir. 2007) (same as to RIF cases).
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No. 22-5574, Johnson v. Evolent Health, LLC

Despite the uncertain timing of Evolent’s decision to terminate Johnson, the undisputed

fact remains that no decisionmaker involved with the RIF process or Johnson’s termination was

aware of Johnson’s pregnancy when the RIF spreadsheet was created or finalized. “An employer

has notice of the employee’s disability when the employee tells the employer that he is disabled.”

Hammon v. DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir. 1999). Yet the only employees who

knew about her pregnancy were Lindauer, whom Johnson told directly, and Waiters, whom she

advised by email. Both testified that they did not recall sharing the news with anyone. See

Prebilich-Holland, 297 F.3d at 444 (holding that the plaintiff lacked evidence to support an

inference that a decisionmaker knew of her pregnancy, in part because coworkers with knowledge

of the plaintiff’s pregnancy did not share that information with anyone in the office). Even if

Waiters’ supervisor, Dubois, was also aware of Johnson’s email because she also actively

monitored the human resources inbox, Johnson offers no evidence that she was a decisionmaker

in the RIF process.

But Johnson argues that Patrick Devlin and Melissa Gilliland, both with access to the HR

email inbox, had “email notice” of her pregnancy disclosure and still influenced her termination

decision through the RIF process. CA6 R. 15, Appellant Br., at 12. Alternatively, Johnson posits

that Devlin and Gilliland’s knowledge of Johnson’s pregnancy can be attributed to the other

decision makers involved in the RIF process under the cat’s paw theory.

Johnson’s argument about Devlin and Gilliland’s “email notice” fails for several reasons.

First, Johnson did not argue Gilliland’s involvement before the district court and thus forfeits that

argument here. See City of Columbus v. Hotels.com, L.P., 693 F.3d 642, 652 (6th Cir. 2012).

Second, no reasonable jury could find that Devlin was aware of Johnson’s email or that he actively

participated in the RIF process. Devlin declared that he did not actively monitor the HR email

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No. 22-5574, Johnson v. Evolent Health, LLC

managed by Waiter and Dubois, did not see Johnson’s email disclosing her pregnancy, and only

learned of Johnson’s pregnancy after she initiated this litigation. After discovery, Johnson still

can produce no evidence to the contrary. Johnson cannot therefore establish that Devlin had actual

knowledge of her pregnancy by relying on his access to a shared inbox or spreadsheet managed by

others. See Clemente v. Vaslo, 679 F.3d 482, 495 (6th Cir. 2012) (“‘[M]ere speculation,

conjecture, or fantasy’ [is] insufficient to survive a motion for summary judgment.”) (quoting

Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)). Further, Devlin testified that,

while he was aware of the RIF, he did not participate in it as a decision maker. Johnson did not

provide any evidence rebutting that testimony. We cannot reasonably infer that he both was aware

of her pregnancy and that he played a larger role in the RIF process than the record reveals.

Johnson also fails to establish prima facie discrimination under the cat’s paw theory. “In

the employment discrimination context, ‘cat’s paw’ refers to a situation in which a biased

subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a dupe in a

deliberate scheme to trigger a discriminatory employment action.” Marshall v. Rawlings Co. LLC,

854 F.3d 368, 377 (6th Cir. 2017) (quoting EEOC v. BCI Coca-Cola Bottling Co. of L.A., 450 F.3d

476, 484 (10th Cir. 2006)) (internal quotation marks omitted). But the “predicate to cat’s paw” is

a demonstration of discriminatory animus: that “by relying on this discriminatory information

flow, the ultimate decisionmakers ‘acted as the conduit of the supervisor's prejudice––his cat's

paw.’” Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d 666, 678 (quoting Christian v.

Wal-Mart Stores, Inc., 252 F.3d 862, 877 (6th Cir. 2001)). Johnson does not allege that any

subordinate employee, aware of her pregnancy or not, showed any discriminatory animus towards

Johnson.

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Because Johnson failed to show that any individual who participated in the RIF process

knew she was pregnant at the time of her termination, and because she cannot show that any

employee who was aware of her pregnancy showed any animus towards her or influenced the

decisions of decision makers, she has not established a prima facie case of pregnancy

discrimination.

Even if Johnson had established prima facie discrimination, her claim would still fail for

failure to establish pretext. Evolent provided a legitimate, nondiscriminatory reason to include

Johnson in the RIF and terminate her based on her negative performance evaluations. See

Stockman v. Oakcrest, 480 F.3d 791, 802 (6th Cir. 2007) (stating that poor performance is a

legitimate, nondiscriminatory reason for discharge); Pierson v. Quad/Graphics Printing Corp.,

749 F.3d 530, 539 (6th Cir. 2014) (finding that elimination of a position as part of an RIF was a

legitimate, nondiscriminatory reason for termination). Johnson fails to satisfy her burden to

establish that this reason was pretextual.

“[A] reason cannot . . . be a pretext for discrimination unless it is shown both that the reason

was false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 515 (1993) (emphases and quotation marks omitted). Specifically, a plaintiff may

demonstrate pretext by showing that employer’s nondiscriminatory reason (1) “had no basis in

fact”; (2) “did not actually motivate the employer”; or (3) “was insufficient to warrant the adverse

employment action.” Bailey v. Oakwood Healthcare, Inc., 732 F. App’x 360, 362 (6th Cir. 2018)

(citation omitted). We evaluate Johnson’s arguments for each factor.

First, Johnson argues that Evolent’s performance justification lacks a basis in fact because

only half of the employees initially listed on the RIF spreadsheet were ultimately terminated. We

disagree. The final RIF list drew from those initially included on it; Evolent only terminated

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employees who received at most a “2” on their evaluations; and Johnson received a “2” rating on

her annual reviews in both 2018 and 2019. Her termination based on poor performance therefore

has a basis in fact. See, e.g., Chen v. Dow Chem., 580 F.3d 394, 400–01 (6th Cir. 2009) (finding

a basis in fact given the employee’s history of performance problems); Pio v. Benteler Auto. Corp.,

No. 21-1231, 2022 WL 351772, at *7 (6th Cir. Feb. 7, 2022) (noting that the termination of an

employee with performance issues had a basis in fact, “even if other [retained] employees also had

. . . performance issues”).

Second, Johnson argues that her poor reviews did not motivate the termination or were

insufficient to warrant such an action. She contends that her termination was not supported by any

notes in the RIF spreadsheet, that she would have to be backfilled by a US-based worker, that she

was successful enough to be offered a transfer to a new department, that she had never been on an

improvement plan, and that Evolent eventually had to replace her position. However, not all

employees terminated in the RIF had additional comments supporting their termination in the

spreadsheet, and the comments in the spreadsheet supported either the retention or termination of

an employee. Moreover, at least one other employee terminated in the RIF both lacked comments

in the spreadsheet and needed to have a US employee backfill, if necessary.

Although Johnson asserts that she was successful enough to merit a transfer to a new

position, the record reveals that the offer of a transfer was due to the company’s reorganization,

rather than her success. Indeed, other members of the Reimbursement Team were also transferred

elsewhere, and we have otherwise found that “a plaintiff’s reliance on her own beliefs and opinions

is not sufficient to show pretext.” Slapak v. Tiger Mgmt. Grp., LLC, 594 F. App’x 290, 296 (6th

Cir. 2014) (citations omitted). Although Johnson’s salary appears to have increased due to the

transfer, her low performance rating and her supervisor’s intention to place her on a performance

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improvement plan weaken the notion that the transfer was due to her success, rather than

reorganization. Further, while Johnson was not yet on an improvement plan, the RIF spreadsheet

included other employees lacking any indication of being on such a plan.

Johnson also argues that Evolent’s reasons for her termination shifted, supporting pretext.

She argues that Maxwell and Hargett told her that her position had been eliminated, but in the

instant litigation, Evolent changed its excuse to job performance. Relying on Asmo v. Keane, Inc.,

471 F.3d 588 (6th Cir. 2006), Johnson argues that the proximity of her termination and Evolent’s

inconsistent justifications sufficiently establish pretext. In response, Evolent argues that it had

consistently maintained two reasons for her termination: “poor performance and a workforce

reduction.” CA6 R. 16, Appellee Br., at 23.

“An employer’s changing rationale for making an adverse employment decision can be

evidence of pretext.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996),

amended on other grounds, 97 F.3d 833 (6th Cir. 1996). In their meeting with Johnson, Maxwell

and Hargett read aloud the following script:

Thank you for coming today. The company continues to monitor its overall performance
to meet our financial targets set for 2020. To operate as effectively as possible, we are
making decisions on staffing within this department. This means that employment for
some employees will be impacted. Your position unfortunately will be impacted with these
decisions. I’m sorry to share that your role will not be continued beyond March 1 and your
last working day will be today, February 24th. This was an extremely difficult decision,
and I want to talk through the ways that we’re here to support you.

DE 40-4, Maxwell Dep., Page ID 618-19.

Maxwell and Hargett therefore relayed to Johnson that monitoring Evolent’s “overall

performance” led to their staffing decisions, and, ultimately, the termination of Johnson’s position.

Id. And discovery revealed that Evolent did base its RIF on performance standards. Even reading

the script in favor of Johnson and finding potential ambiguity as to whether Maxwell and Hargett

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meant that “performance” or “staffing numbers” directly caused Johnson’s termination, there is

insufficient support to demonstrate that Evolent’s reasons for terminating Johnson materially

shifted between the termination and the commencement of the litigation. Johnson’s reliance on

Asmo is thus insufficient. In Asmo, the supervisor initially stated five reasons for Asmo’s

termination, but advanced only three of those reasons at Asmo’s litigation. The two rescinded

reasons were found to be false. “[T]he fact that the[se reasons] were later eliminated, and they

happen to be the two reasons . . . that are false, [was] very suspicious” and led the Asmo court to

conclude that the shifting justifications were evidence of pretext. Asmo, 471 F.3d at 596. Here,

by contrast, neither the performance standards nor staffing justification is suspicious in light of the

record. We do not find this to be evidence of pretext.

Johnson’s last argument to support pretext relies on a spreadsheet showing instances of

“suspicious, likely-discriminatory conduct from Evolent” where Evolent terminated forty-eight of

436 employees who disclosed pregnancies and requested FMLA leave. CA6 R. 15, Appellant Br.,

at 30. However, Evolent responds that the district court properly concluded that pattern or practice

evidence is unavailable to assess an individual plaintiff’s discrimination claim. Evolent is correct.

Pattern-or-practice evidence is generally “inappropriate as a vehicle for proving discrimination in

an individual case” because it does not evaluate individual hiring decisions. Bacon v. Honda of

Am. Mfg., Inc., 370 F.3d 565, 575 (6th Cir. 2004) (citation omitted). It can support, however, an

“otherwise-viable individual claim for disparate treatment under the McDonnell Douglas

framework,” although a plaintiff must still satisfy the McDonnell Douglas framework to prevail.

Id. Johnson is unable to separately satisfy the McDonnell Douglas framework. Thus, this evidence

does not raise a triable issue of fact nor does it allow Johnson’s claims to survive summary

judgment.

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The temporal proximity of Johnson’s disclosure of her pregnancy and her termination may

be indirect evidence of pretext but cannot alone support pretext here. Megivern v. Glacier Hills

Inc., 519 F. App’x 385, 398 (6th Cir. 2013) (citing Asmo, 471 F.3d at 598). Even when the timing

appears “suspect,” it “must be accompanied by other, independent evidence of pretext for [the

plaintiff] to succeed.” Id. at 398; see also Bell v. Prefix, Inc., 321 F. App’x 423, 431 (6th Cir.

2009) (quoting DeBoer v. Musashi Auto Parts, Inc., 124 F. App’x 387, 393–94 (6th Cir. 2005)

(explaining that “suspicious timing is a strong indicator of pretext when accompanied by some

other, independent evidence”). Because she cannot show that Evolent’s justification lacked a basis

in fact, did not actually motivate Evolent to terminate her, or was insufficient to warrant her

termination, Johnson has failed to establish pretext.

3. FMLA Interference and Retaliation

Johnson next argues that Evolent unlawfully interfered with and retaliated against her

exercise of rights and benefits under the FMLA by terminating her employment shortly after she

contacted human resources about disability benefits and FMLA leave. As with her sex

discrimination claim, we apply the McDonnell Douglas burden-shifting framework because

Johnson presents indirect evidence of interference and retaliation. See Donald v. Sybra, Inc., 667

F.3d 757, 761-62 (6th Cir. 2012).

To establish a prima facie case of FMLA interference, Johnson must show that “(1) she

was an eligible employee; (2) [Evolent] was an employer as defined under the FMLA; (3) [she]

was entitled to leave under the FMLA; (4) [she] gave [Evolent] notice of her intention to take

leave; and (5) [Evolent] denied [her] FMLA benefits to which she was entitled.” See id. at 761

(quoting Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556 (6th Cir. 2006)). To establish a

prima facie case of retaliation, Johnson must show that:

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No. 22-5574, Johnson v. Evolent Health, LLC

(1) she was engaged in an activity protected by the FMLA; (2) [Evolent] knew that
she was exercising her rights under the FMLA; (3) after learning of [Johnson]’s
exercise of FMLA rights, [Evolent] took an employment action adverse to her; and
(4) there was a causal connection between the protected FMLA activity and the
adverse employment action.

Id. (quoting Killian, 454 F.3d at 556).

Evolent did not argue before the district court that Johnson failed to establish a prima facie

case of FMLA interference. It therefore forfeited the argument, and no miscarriage of justice will

occur by declining to consider it. See Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d

1445, 1461 (6th Cir. 1988). The burden therefore shifts to Evolent to establish a legitimate,

nondiscriminatory reason for her termination. Donald, 667 F.3d at 762.

As in the pregnancy discrimination context, Evolent asserts that both the reduction in force

and performance issues were reasons for discharging Johnson. Likewise, Johnson contends that

she can demonstrate pretext for the same reasons underlying her pregnancy discrimination claim.

But her reasons for finding pretext for pregnancy discrimination are equally unavailing in the

FMLA context because at least one other similarly situated employee was terminated without

having requested FMLA leave. And, as we have established, temporal proximity alone does not

establish pretext. See Megivern, 519 F. App’x at 398. Nor can her pattern-or-practice evidence

save her FMLA claims because the claims are not otherwise viable under McDonnell Douglas.

See id. at 399. The same reasons apply to Johnson’s FMLA-retaliation claim because, even if she

were to establish a prima facie case, she cannot establish pretext. The district court did not err in

granting summary judgment to Evolent on all of Johnson’s claims.

IV.

For the foregoing reasons, we affirm.

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