Dayna Newton v. O H I O D E P A R T M E N T O Frehabilitation

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0940n.06
No. 11-3681
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAYNA NEWTON,
Plaintiff-Appellant,
v.
O H I O D E P A R T M E N T O F
REHABILITATION AND CORRECTION-
TOLEDO CORRECTIONAL INSTITUTION,
Defendant-Appellee.
/
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
BEFORE: DAUGHTREY and CLAY, Circuit Judges; CLELAND, District Judge.*
CLAY, Circuit Judge. Plaintiff Dayna Newton appeals the district court’s order granting
summary judgment to Defendant Ohio Department of Rehabilitation and Correction-Toledo
Correctional Institution (ODRC) in her suit alleging sexual harassment, hostile work environment,
and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a) et
seq.
For the reasons that follow we AFFIRM the judgment of the district court.
BACKGROUND
On July 24, 2000, Defendant hired Plaintiff as a correctional officer (C.O.) for their Lima
Correction Institution. Plaintiff was transferred from the Lima facility to the Toledo Correctional
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of*
Michigan, sitting by designation.

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Institution in March 2002 and volunteered for an assignment in the Delta 1 Control Room (control
room). The control room is a secure, locked room surrounded by tinted glass. Plaintiff was
responsible for observing two television screens that monitored the flow of inmate and staff traffic
between the prison cells and the stairways; remotely locking and unlocking approximately twenty
doors; monitoring radio traffic; testing “man down” alarms; controlling the playing of institutional
movies for the inmates; and distributing batteries to the C.O.s on foot patrol for use in their radios.
A. Sexual Harassment Incident
Plaintiff’s claims of sexual harassment are based on a February 19, 2009 incident involving
Sergeant Kevin Logan (Logan). Plaintiff stated at her deposition that she was working in the control
room when at approximately 11 a.m., Logan entered and spoke to Plaintiff about a situation with one
of the inmates who was becoming very hostile and threatening to the other C.O.s and inmates.
Logan asked Plaintiff for her opinion about where the inmate should be placed. During their
conversation, Logan approached Plaintiff from behind and began to rub her shoulders and make a
groaning noise for a few seconds. Plaintiff was sitting with her back towards Logan when she felt1
his hands first touch her shoulders and then move closer to her breast. Plaintiff stated that she
looked over her shoulder, gave Logan “a look,” and he removed his hands. According to Plaintiff,
Logan continued his discussion about the inmate and then walked around to the right side of
Plaintiff, grabbed her hand, and “swiped it across his groin area, unzipped his pants, then turned
At some point during the conversation, Plaintiff permitted Officer Davis, another C.O.,1
to enter the control room for approximately five minutes. Although Officer Davis remained in
the control room, it is unclear from the record whether Officer Davis noticed the interaction
between Plaintiff and Logan.
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[her] hand upwards and ejaculated in [her] hand.” Plaintiff stated that immediately after Logan
ejaculated on her hand she heard the buzzer and let another C.O., Shannon Kocsis (Kocsis), into the
control room. After Kocsis entered, Logan left and Plaintiff went upstairs to the bathroom and
placed his semen into a plastic bag. Plaintiff returned and let Kocsis out of the control room and
then called her friend, Officer Candace Whitmore (Whitmore). Plaintiff stated that she told
Whitmore that Logan ejaculated on her hands. Officer Whitmore encouraged Plaintiff to report the
incident. Plaintiff then called Officer Dawn Schaber-Goa (Schaber-Goa), a master control officer
and friend. Plaintiff told Officer Schaber-Goa about the incident with Logan. Officer Schaber-Goa
advised Plaintiff to speak with a “lieutenant, or a white shirt, or a captain” and to contact Stacey
Stidham (Stidham), the Ohio State Highway Patrol Trooper assigned to the Toledo facility. Plaintiff
was unable to reach Stidham so she left a voicemail.
That same day, Plaintiff contacted the shift commander’s office to speak with her supervisor,
Lieutenant Kimberly Henderson (Henderson). Plaintiff discussed the incident with Henderson and
also showed Henderson the plastic bag that contained Logan’s semen. Henderson recommended that
Plaintiff report the incident. Henderson also mentioned that Logan had a history of this type of
conduct. Henderson relieved Plaintiff from her duties in the control room, and she went to the
Warden’s administrative office to file an official incident report. On the incident report, Plaintiff
indicated that the massage and conversation were consensual, but the groping of his penis was not
consensual.
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B. The ODRC Conducts an Internal Investigation of Plaintiff’s Complaint
As a result of the incident report two separate investigations were initiated—one by the
ODRC and the other by the Ohio State Highway Patrol. The ODRC began its investigation of
Plaintiff’s complaint on the same day of the incident, February 19, 2009. During the course of the
investigation, Plaintiff also spoke with Meredith Renna (Renna), the victim coordinator assigned to
review Plaintiff’s incident report. Renna advised Plaintiff of her victim’s rights and also referred
her to the critical incident support team, which is a group that provides support to victims of
harassment. Plaintiff elected to speak with a support team member, Cindy Terrazas, who was also
the warden’s secretary. Terrazas informed Plaintiff about various support programs, including the
Employee Assistance Program, and they also discussed the incident involving Logan.
Warden Robert Welch (Welch) told Plaintiff that they were placing Logan on paid
administrative leave. He also requested that Plaintiff take administrative leave and seek any
additional help necessary. Plaintiff also received a form letter from ODRC’s human resources to
confirm that she was on paid administrative leave pending the investigation. Welch assigned Sean
Bowerman (Bowerman) to investigate the incident. Bowerman reviewed the incident report and also
conducted interviews with Plaintiff, Logan, and others who had knowledge of the incident. During
the course of the investigation, Bowerman discovered that the cameras in the control room were not
working on the day of the incident. Bowerman concluded that the incident between Plaintiff and
Logan was consensual, and submitted a report to Welch for his review on April 21, 2009.
After reviewing the report, the ODRC Labor Relations Officer, Jeff Richmond (Richmond)
prepared a pre-disciplinary conference notice to Plaintiff on May 14, 2009. The notice advised
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Plaintiff that she violated Rules 37 and 49 of the ODRC Standards of Employee Conduct and that
a hearing was scheduled for May 27, 2009. Plaintiff and her union representative attended the
hearing. A Hearing Officer’s Report was issued on June 3, 2009, finding just cause to believe that
Plaintiff violated ODRC’s policy by engaging in an inappropriate relationship while on the work
premises.
Welch reviewed the reports prepared by Investigator Bowerman and Officer Richmond.
After reviewing the documents, Welch concluded that Plaintiff and Logan’s conduct was in violation
of ODRC’s Standards of Employee Conduct and both were subsequently terminated from their
respective positions on June 25, 2009. Logan accepted ODRC’s offer to convert his removal to a
resignation. Plaintiff filed a grievance, which went to arbitration on November 30, 2009. The
arbitrator determined that ODRC presented clear and convincing evidence that Plaintiff and Logan
engaged in a consensual act and there was sufficient just cause for Plaintiff’s removal.
C. Ohio State Highway Patrol Conducts an Independent Investigation into
Plaintiff’s Allegations
In addition to the ODRC’s internal investigation, the Ohio State Highway Patrol also
conducted a review of Plaintiff’s complaint. At approximately noon on February 19, 2009,
Bowerman notified Stidham about the incident involving Plaintiff and Logan. Bowerman briefed
Stidham on the allegations and gave her the plastic bag that allegedly contained semen from Logan.
Stidham sent the bag to a laboratory for testing. Next, Stidham conducted an interview with Plaintiff
but did not take any notes during the interview. At the conclusion of the interview, Stidham
provided a written summary of the incident, which Plaintiff reviewed and signed off. Stidham
continued with her independent investigation and interviewed a number of ODRC employees who
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had knowledge of the incident, including Henderson and Kocsis. Stidham also attempted to
interview Logan, but he refused to answer any questions. Stidham concluded that the totality of the
evidence did not support Plaintiff’s claim of sexual harassment. In making this determination,
Stidham found Plaintiff to be deceitful and that her statements about the alleged sexual harassment
did not make sense, and that Plaintiff was purposefully trying to retaliate against Logan. Stidham
based her finding on two statements that Plaintiff made during their interview. According to
Stidham, Plaintiff made the comment “I’ve got him now,” and Plaintiff also stated that she “just
want[ed] to make sure it didn’t happen again.” These statements taken together with the
preservation of the semen led Stidham to conclude that Plaintiff was seeking revenge against Logan.
Stidham then consulted with the Toledo City Prosecutor about the incident and notified him that she
was going to request a polygraph for both Plaintiff and Logan.
In March 2009, Stidham and Plaintiff had a phone conversation about scheduling a polygraph
but Plaintiff ultimately decided not to take a polygraph on the advice of her attorney. During the
conversation, Plaintiff also mentioned that a former C.O., Renee Adams (Adams), also had a similar
incident with Logan and Plaintiff requested that Adams testify on her behalf. According to Stidham,
Plaintiff preferred to initiate contact with Adams herself and then Adams would contact Stidham if
she was willing to testify in Plaintiff’s case. Stidham stated that Adams never contacted her and
Stidham chose not to investigate the alleged incident between Adams and Logan.
Stidham met with the prosecutor to discuss possible charges against Plaintiff. Stidham
contacted Plaintiff and requested that she come to the correctional facility. Stidham met with
Plaintiff and discussed the finding of her investigation. Stidham concluded that based on the totality
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of the circumstances, Plaintiff and Logan engaged in a consensual act and that both would be
criminally charged with dereliction of duty. The conversation was not recorded. On September 16,
2009, Plaintiff accepted a plea deal to an amended charge of attempted dereliction of duty.
Prior to her termination, on March 13, 2009, Plaintiff filed a sexual harassment complaint
with the Ohio Civil Rights Commission (OCRC) and the Equal Employment Opportunity
Commission (EEOC). Following her discharge, Plaintiff filed a second charge with the OCRC and
the EEOC on June 30, 2009, and alleged retaliation in the form of harassment for the filing of her
first complaint. The United States Department of Justice, Civil Rights Division issued a Right to
Sue letter on December 29, 2009.
Plaintiff filed her complaint in the United States District Court for the Northern District of
Ohio on March 26, 2010, alleging sex discrimination, sexual harassment, and retaliation in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and also a sexual harassment
claim pursuant to the Ohio Revised Code sections 4112.02(a) and 4112.99 against Defendant.
Plaintiff sought monetary and equitable relief as well as punitive damages. Plaintiff’s state law
claims were dismissed by stipulation of the parties on July 13, 2010. Defendant moved for summary
judgment on the remaining claims on January 31, 2011. The district court granted summary
judgment to Defendant in an order issued on May 19, 2011. Plaintiff now appeals.
DISCUSSION
I. Standard of Review
We review a district court’s grant of summary judgment de novo. Farhat v. Jopke, 370 F.3d
580, 587 (6th Cir. 2004) (citation omitted). The evidence in the record is reviewed in the light most
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favorable to the non-moving party, and all reasonable inferences are drawn to the benefit of that
party. Combs v. Int’l Ins. Co., 354 F.3d 568, 576–77 (6th Cir. 2004) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970)). Summary judgment is appropriate only where the evidence raises
no genuine issue of material fact “such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Where the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no
genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (citation and internal quotation marks omitted).
II. Hostile Work Environment
Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating “against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). Plaintiff brings her Title VII action under a hostile work environment theory. Under this
theory, a “workplace [that] is permeated with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment,” violates Title VII. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (citations and internal quotation marks omitted). “[T]he objective severity of harassment
should be judged from the perspective of a reasonable person in the plaintiff’s position, considering
all the circumstances.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (citation
and internal quotation marks omitted).
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As an initial matter, we must determine whether Plaintiff’s hostile work environment claim
is based on harassment by a supervisor or by a co-worker. If Logan is determined to be Plaintiff’s
supervisor, then “an employer is vicariously liable ‘for an actionable hostile work environment
created by a supervisor with immediate (or successively higher) authority over the employee.’”
Jackson v. Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999) (quoting Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765 (1998)). However, if Logan is classified as a co-worker, then “[a]n
employer is liable if it knew or should have known of the charged sexual harassment and failed to
implement prompt and appropriate corrective action.” Hafford v. Seidner, 183 F.3d 506, 513 (6th
Cir. 1999) (citation and internal quotation marks omitted).
The district court found that Logan was not Plaintiff’s supervisor because Logan possessed
no real authority over Plaintiff or any other C.O. In light of this finding, the district court analyzed
Plaintiff’s claim under the co-worker theory of hostile work environment and concluded that
Defendant was not vicariously liable for Plaintiff’s actions. Plaintiff argues that Logan was her
supervisor at the time of the incident. In support of this argument, Plaintiff states that Logan was
not only in a superior position, but she also claims that Logan exercised authority and control over
her and the other C.O.s.
A supervisor is “an individual who serves in a supervisor position and exercises significant
control over plaintiff’s hiring, firing or conditions of employment.” Pierce v. Commonwealth Life
Ins. Co., 40 F.3d 796, 803 (6th Cir. 1994) (citation and internal quotation marks omitted). Based
on this definition, Plaintiff must establish that Logan exercised significant control and authority over
her hiring, firing, or conditions of employment. Plaintiff cannot meet this burden. The record does
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not indicate that Logan exercised any control over personnel matters nor did Logan have any
authority over Plaintiff to terminate her or place conditions on her employment. Although there is
evidence that supports Plaintiff’s position that Logan is a higher ranking official—different pay
scales and job responsibilities—Logan’s deposition establishes that he did not have any supervisory
authority over Plaintiff. Plaintiff’s claim is further weakened by the fact that Logan was not
Plaintiff’s direct supervisor. Rather, the lieutenants were responsible for addressing issues of
concern by the C.O.s, which included Plaintiff. Logan stated at his deposition that he was instructed
to report any issues with the C.O.s to the lieutenant and the lieutenant would “try to diffuse the
situation.” Because Plaintiff cannot substantiate her claim that Logan was her supervisor, we will
proceed to analyze Plaintiff’s claim under the theory of co-worker hostile work environment.2
To establish a prima facie Title VII claim of sexual harassment based on a hostile work
environment, Plaintiff must “show that: (1) she is a member of a protected class; (2) she was
subjected to unwelcome sexual harassment; (3) the harassment was based on her sex; (4) the
harassment unreasonably interfered with her work performance and created a hostile work
environment; and (5) the employer knew or should have known of the charged sexual harassment
and failed to implement prompt and appropriate corrective action.” Valentine-Johnson v. Roche, 386
F.3d 800, 814 (6th Cir. 2004) (citation, internal quotation marks, and alteration omitted).
The parties do not dispute that Plaintiff belonged to a protected class and that the alleged
harassment was because of Plaintiff’s sex. Defendant also does not challenge whether the alleged
In addition, the parties stipulated at arbitration that Logan is not the supervisor of2
Plaintiff and that he did not have authority over her.
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harassment interfered with her work performance and created a hostile work environment. Plaintiff
challenges only whether Logan’s sexual harassment conduct was unwelcome and whether Defendant
knew or should have known about Logan’s sexual harassment behavior but failed to take the
appropriate corrective action.
A. Unwelcomed Sexual Conduct
The district court concluded that the conflicting positions presented by both parties presented
a disputed issue of material fact as to whether the sexual contact between Plaintiff and Logan was
consensual. Plaintiff presents compelling evidence to show that Logan’s conduct in the control room
was not consensual. The only witnesses to the incident were Plaintiff and Logan. Plaintiff
acknowledged that the shoulder massage and conversation were consensual, but that the groping and
Logan’s moaning sounds were unwelcomed sexual advances. Plaintiff further stated that she did not
provoke Logan to masturbate in her hand and that a reasonable person in her position would not have
collected the semen and placed the contents into a plastic bag if the conduct was consensual. Finally,
shortly after the incident, Plaintiff complained to both friends and her superiors about the
unwelcomed conduct. She informed her supervisors of Logan’s actions in a timely manner and took
the appropriate steps with management to file a formal complaint.
The evidence from the record indicates that Plaintiff satisfied her burden to show that
Logan’s sexual conduct was unwelcomed based on the following: (1) the massage, although initially
consensual on her back, became objectionable, (2) Plaintiff maintained the semen so that she had
more evidence than “he said, she said”; (3) Plaintiff presented a complaint to her supervisor in a
timely fashion; and (4) a reasonable person would not have come forward and subjected herself to
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an investigation if the incident was a consensual act. Although Defendant’s investigators concluded
that Plaintiff and Logan engaged in a consensual sexual act, in viewing the facts in a light most
favorable to Plaintiff, there is sufficient evidence to establish a genuine dispute of material fact on
this issue.
B. Defendant’s Knowledge and Corrective Action
Next, we consider whether Defendant knew or should have known of the charged sexual
harassment and failed to implement prompt and appropriate corrective action.
Plaintiff argues that Defendant knew about Logan’s propensity to sexually harass women in
the workplace and failed to take the appropriate action. Plaintiff identifies statements made in April
2004 by a former C.O. Renee Adams, to Monica Ford, Defendant’s EEOC officer, alleging that
“Logan had been harassing her.” Adams later filed an OCRC charge also alleging sexual
harassment, but it did not specifically name Logan. Defendant contends that Adams never submitted
a formal internal complaint, however, “failure to report harassment [does] not bar a hostile work
environment claim because the requirement is that the employer knew or should have known of the
offensive conduct, not that the employee must report it.” Randolph v. Ohio Dep’t of Youth Servs.,
453 F.3d 724, 735 (6th Cir. 2006) (citing Jackson, 191 F.3d at 663). Although the record indicates
that Adams never provided any additional information to support her allegations, including details
about Logan’s conduct or follow up to her conversation with Ford, that discussion coupled with the
OCRC charge may create an issue of material fact as to whether Defendant was on notice that Logan
was engaging in inappropriate behavior.
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Plaintiff also contends that other people in the workplace were aware of the sexual
harassment complaints against Logan. However, the depositions of the other co-workers indicate
that there were only rumors that Logan previously engaged in lewd conduct but none of that was
substantiated by their testimony. “[R]umors, conclusory allegations and subjective beliefs . . . are
wholly insufficient evidence to establish a claim of discrimination as a matter of law.” Mitchell v.
Toldeo Hosp., 964 F.2d 577, 585 (6th Cir. 1992). Therefore, we may not rely on these statements
as additional evidence that Defendant should have been aware of Logan’s conduct. Nonetheless,
Plaintiff provided sufficient evidence that Defendant had notice of Logan’s previous harassing
behavior.
Defendant contends that even if it knew or should have known that Logan harassed Adams,
it “took prompt and appropriate corrective action in response” to address Plaintiff’s complaint.
There is no dispute that Plaintiff notified Defendant about the harassment. The record indicates that
Plaintiff followed Defendant’s procedure in filing a complaint and did not deviate from the policy.
“To establish actual notice, a plaintiff must show that he reported the harassment to someone in
higher management—that is, to someone in the employer’s chain of command who possesses the
ability to exercise significant influence in the decision-making process of hiring, firing, and
disciplining the offensive employee.” Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 474 (6th Cir.
2012) (citation and internal quotation marks omitted). In this case, Plaintiff notified her supervisors
and reported the incident to the appropriate personnel. Based on Plaintiff’s allegations, Defendant
initiated a formal investigation into Logan’s conduct.
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An employer's response is unreasonable if it “manifests indifference or unreasonableness in
light of the facts the employer knew or should have known.” Blankenship v. Parke Care Ctrs. Inc.,
123 F.3d 868, 873 (6th Cir. 1997). However, “[w]hen an employer responds with good-faith
remedial action, we cannot say that the employer has itself committed an act of discrimination.” Id.
In this case, Defendant acted appropriately in investigating and responding to Plaintiff’s sexual
harassment claim. After receiving Plaintiff’s formal complaint and incident report, Defendant
immediately began an internal investigation, and there was also an independent investigation by the
Ohio State Highway Patrol. Defendant scheduled meetings with Plaintiff’s supervisors to discuss
the incident in detail, interviewed witnesses, including Logan, and prepared a separate report of its
findings. Defendant also informed Plaintiff about her victim’s rights and discussed other counseling
services and resources available.
During the course of the investigation, Plaintiff was placed on paid administrative leave with
benefits. Both investigations concluded that Plaintiff and Logan engaged in consensual sexual
conduct on the premises during work hours in violation of ODRC’s policy. Plaintiff’s appeal to the
arbitrator following her discharge did not change that finding and conclusion. Finally, Defendant
did not take any disciplinary action until after a pre-disciplinary hearing was conducted. Defendant
then issued its finding that the sexual act was entirely consensual.3
Defendant also points to a post-discharge decision by an independent arbitrator that3
conducted its own evaluation and found that the sex act was consented to by both parties.
Plaintiff admitted during arbitration that “she did not tell [Logan] to stop, pull her hand away, or
call for help.” She further admitted that “she did not avail herself of any of the emergency
procedures of the institution,” which may suggest that the conduct was consensual.
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Based on the record, Defendant acted appropriately in investigating and responding to the
alleged sexual harassment and therefore, Plaintiff cannot prevail on her claim of a hostile work
environment. Although we are certainly troubled by Logan’s alleged actions, we cannot punish
Defendant if it took “prompt and adequate remedial action upon reasonable notice of the creation
of a hostile work environment.” Kalich, 679 F.3d at 474 (citation and internal quotation marks
omitted). “Rather than considering [Plaintiff’s complaint] in isolation, we must consider the totality
of the circumstances in determining whether the harassment was sufficiently severe and pervasive.”
Randolph, 453 F.3d at 733 (citing Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997)).
As a result, we conclude that Plaintiff cannot establish a claim of hostile work environment.
III. Retaliation Claim
Plaintiff also alleges that the district court erred in dismissing her retaliation claim and argues
that Defendant retaliated against her by terminating her employment after she filed her sexual
harassment complaint.
To establish a prima facie case of retaliation, a plaintiff must show that “(1) she engaged in
Title VII-protected activity; (2) [Defendant] knew that she engaged in the protected activity; (3)
[Defendant] subsequently took an adverse employment action against [Plaintiff]; and (4) the adverse
action was causally connected to the protected activity.” Upshaw v. Ford Motor Co., 576 F.3d 576,
588 (6th Cir. 2009) (citation omitted). Retaliation may be proved through direct or circumstantial
evidence. See DiCarlo v. Potter, 358 F.3d 408, 420 (6th Cir. 2004).
If a defendant satisfies its burden of showing a legitimate nondiscriminatory reason, then a
plaintiff may still prevail by demonstrating to the fact-finder that Defendant’s proffered reason is a
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mere pretext for intentional discrimination. Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502
(6th Cir. 2009). In this case, the parties do not dispute that Plaintiff satisfied the first three prongs
of the retaliation analysis. The focus of this appeal is whether Plaintiff established a causal
connection between the protected activity—filing a sexual harassment complaint against a co-
worker—and the adverse employment action—Defendant’s decision to terminate her employment.
Plaintiff contends that there exists a close temporal proximity between the time she filed her
complaint with OCRC—March 13, 2009—and the date of her termination—June 25, 2009, which
is sufficient evidence to support her retaliation claim.
Plaintiff did not establish the fourth prong of her prima facie case because she cannot
establish a casual link between the filing of her sexual harassment complaint and her termination.
“To establish the causal connection required in the fourth prong, a plaintiff must produce sufficient
evidence from which an inference could be drawn that the adverse action would not have been taken
had the plaintiff not filed a discrimination action.” Nguyen v. City of Cleveland, 229 F.3d 559, 563
(6th Cir. 2000) (citation omitted). A causal link may be proved by either direct evidence or through
temporal proximity that creates an inference of causation. Randolph, 453 F.3d at 737 (“[A] temporal
connection coupled with other indicia of retaliatory conduct may be sufficient to support a finding
of a causal connection.”). However, temporal proximity alone may not support an inference of
retaliatory discrimination absent other compelling evidence. See Moore v. KUKA Welding Sys., 171
F.3d 1073, 1080 (6th Cir. 1999); Cooper v. City of North Olmstead, 795 F.2d 1265, 1272 (6th Cir.
1986).
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Although temporal proximity does exist in this case, Plaintiff never provided any additional
evidence to support her retaliation claim. See Singfield v Akron Metro. Hous. Auth., 389 F.3d 555,
63 (6th Cir. 2004) (finding that three months between the protected activity and the adverse
employment action was sufficient to establish a prima facie case of retaliation). We agree with the
district court, which concluded that Plaintiff “never asserted, nor put forth any evidence
demonstrating, she was ever denied the opportunity to return to work prior to her termination.”
Moreover, “[i]t is important to emphasize that it is causation, not temporal proximity itself, that is
an element of plaintiff’s prima facie case.” Dixon v. Gonzales, 481 F.3d 324, 335 (6th Cir. 2007)
(citation omitted). As the district court notes, Plaintiff understood Defendant’s decision to place her
on administrative leave and did not view this as a punitive measure as she continued to receive her
pay and health benefits. In addition, there is no evidence in the record to show that Plaintiff
requested to be reinstated in her position during the investigation.
Even assuming that Plaintiff demonstrated a prima facie case of retaliation, Defendant
presented a legitimate non-discriminatory reason for Plaintiff’s termination. Defendant terminated
Plaintiff not for filing her sexual harassment complaint, but for engaging in consensual sex in the
workplace in violation of ODRC’s policy. Not only does this evidence undermine Plaintiff’s ability
to show a causal connection between her protected activity and the adverse employment action, it
also shows that Defendant had a legitimate, non-discriminatory reason for its decision to terminate
Plaintiff. Therefore, Plaintiff cannot prevail on her retaliation claim.
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CONCLUSION
For the reasons discussed above, we AFFIRM the judgment of the district court granting
summary judgment to Defendant.
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