Ladonna Blewett v. Nikole Howard-Whisett

NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0039n.06
No. 25-1586
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LADONNA BLEWETT,
Plaintiff-Appellant,
v.
NIKOLE HOWARD-WHISETT; CITY
OF DETROIT, MICHIGAN, dba Detroit
Water and Sewerage Department,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
OPINION
Before: SUTTON, Chief Judge; STRANCH and LARSEN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. LaDonna Blewett was employed by the City of
Detroit (the “City”) as a professional administrative analyst in the Detroit Water and Sewerage
Department. After Blewett was fired from this position, she sued the City and her supervisor,
Nikole Howard-Whisett, alleging racial discrimination in violation of the Equal Protection Clause
and Michigan state law. The district court granted summary judgment to Howard-Whisett and the
City on all claims. We AFFIRM.
I. BACKGROUND
Blewett, who is African-American, began working as a professional administrative analyst,
or “staff accountant,” in the treasury department of the Detroit Water and Sewerage Department
in 2016. Her primary responsibilities were to process incoming and outgoing wire transfers,
reconcile any issues with those transfers, and log those transfers in a cashbook. She was expected
to submit the cashbook to Howard-Whisett every day between 11 a.m. and 12 p.m., after which

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Howard-Whisett would forward the cashbook to another department for further review. Blewett
was also required to submit journal entries each month (1) documenting the month’s wire transfers
and credit card payments and (2) noting any imbalances pending resolution.
The record includes Blewett’s performance reviews from 2018 through 2020, as well a
“Corrective Disciplinary Action Form” documenting her termination in October 2020. In
Blewett’s 2018 performance review, Howard-Whisett noted that “[t]he cashbook was not accurate
nor completed on a timely basis. There were instances where changes took weeks or months to
correct and complete. However, as of lately, there has been significant improvement that I hope
will continue.” Blewett’s 2019 performance review stated, “LaDonna is dependable as far as
attendance goes. However, LaDonna has to pay closer attention to deadlines and meet them
without me reminding her; especially for things that are routine and reoccurring. LaDonna also
makes quite a few errors[.]” Blewett’s 2020 performance review, which was completed two
months before her termination, contained multiple comments expressing concerns with the
timeliness and accuracy of her work, such as “completing assignments and meeting deadlines seem
to be a big problem . . . [a]t one point it seemed to be getting better but has since still remains a
great concern” and “LaDonna also makes numerous errors on assignments that she has done
numerous times.” Her 2020 performance review further noted that “[s]he was late completing the
cashbook 101 days out of 214 which is 47% of the time late” and “did not have her cashbook
reconciled by the 2nd business day on a consistent basis. She was late 10 months out of 12 which
is 83% of the time late.” Blewett’s “dependability and reliability” rating also declined over the
course of these three performance reviews, from “Achieved Expectations” in 2018, to “Minimally
Satisfactory” in 2019, and finally to “Unacceptable” in 2020.

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On the “Corrective Disciplinary Action Form” documenting the reasons for Blewett’s
termination, Howard-Whisett cited “poor work performance” and the same statistics from the 2020
performance review regarding how often Blewett was late (“101 days out of 214” on her daily
assignments and “10 months out of 12” on her monthly assignments). The form further explained
that “[o]ften times journal entries had to be done over 2 or 3 times due to errors. There were also
recurring journal entries that were missed that had to be put in the next month or the adjustment
period.”
Blewett, however, claims she was fired not because of her job performance but due to racial
discrimination. Throughout her employment, the treasury department consisted of six employees
including Howard-Whisett and herself; five of those employees were African-American (including
Howard-Whisett), while one of those employees was white—Dawn Green, who was also
supervised by Howard-Whisett. Blewett contends Green was afforded special treatment by
Howard-Whisett in comparison to her African-American colleagues despite exhibiting her own
performance issues, including that one of Green’s reconciliation assignments was outstanding for
150 days. Blewett also testified that Howard-Whisett directed harassing comments to her
specifically, such as threatening to fire her over her cashbook errors.
Blewett sued Howard-Whisett and the City in the Eastern District of Michigan, asserting
three claims: (1) a § 1983 claim for employment discrimination in violation of the Equal Protection
Clause, (2) an employment discrimination claim under Michigan’s Elliott-Larsen Civil Rights Act
(ELCRA), and (3) a hostile work environment claim under ELCRA. The district court granted
summary judgment to Howard-Whisett and the City on all claims.

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II. LEGAL STANDARD
Summary judgment is appropriate only when “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). A fact is material when it “might affect the outcome of the suit under the governing
law,” and a dispute is genuine “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). At the
summary judgment stage, courts must view the record evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in favor of the nonmoving party. See
Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir. 2012) (en banc). We review a district
court’s grant of summary judgment de novo. McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir.
2016).
III. ANALYSIS
Blewett brought claims for employment discrimination under the Equal Protection Clause,
employment discrimination under ELCRA, and hostile work environment under ELCRA, all on
the theory that she was subjected to discrimination on the basis of race. Blewett argues the district
court erred in granting summary judgment to Howard-Whisett and the City because it misapplied
the summary judgment standard in several ways, such as by improperly resolving factual disputes
and making credibility determinations. The district court’s application of the summary judgment
standard is not dispositive, however, because we may affirm on any ground that is supported by
the record. See Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629
(6th Cir. 2002).

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A. Employment Discrimination Under ELCRA and Equal Protection
Racial discrimination claims under ELCRA are “analyzed under the same evidentiary
framework used in Title VII cases.” Ondricko v. MGM Grand Detroit, LLC, 689 F.3d 642, 652
(6th Cir. 2012) (citation modified). Likewise, when a public employee brings an employment
discrimination claim under the Equal Protection Clause, we analyze that claim using the Title VII
framework. Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003). Under the
McDonnell Douglas burden-shifting framework for Title VII claims, the burden of production
begins with the plaintiff, who must make out a prima facie case of discrimination. Redlin v. Grosse
Pointe Public School Sys., 921 F.3d 599, 606 (6th Cir. 2019). Specifically, the plaintiff “is required
to present evidence that (1) she was a member of a protected class, (2) she was subject to an adverse
employment action, (3) she was qualified for the position, and (4) others, similarly situated and
outside the protected class, were treated differently.” Ondricko, 689 F.3d at 653. We have
emphasized that the plaintiff’s burden at this stage “is not an onerous one.” Redlin, 921 F.3d at
606 (citing Wheat v. Fifth Third Bank, 785 F.3d 230, 237 (6th Cir. 2015)). If the plaintiff can
make out a prima facie case, the burden shifts to the employer to “articulate some legitimate,
nondiscriminatory reason” for the adverse employment action. Ondricko, 689 F.3d at 653.
Finally, if the employer discharges that burden, the burden shifts back to the plaintiff to show that
the employer’s asserted reasons “were not its true reasons, but rather were pretext for unlawful
discrimination.” Id.
Blewett contends she was similarly situated to Green, her white coworker who was not
fired, because Green had similar performance issues and was engaged in similar policy violations.
A plaintiff “need not demonstrate an exact correlation with the employee receiving more favorable
treatment in order for the two to be considered ‘similarly-situated;’ rather, . . . the plaintiff and the

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employee with whom the plaintiff seeks to compare himself or herself must be similar in ‘all of
the relevant aspects.’” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998) (citation modified). To be similarly situated, two employees need not have identical job
duties, nor even the same supervisor. See Redlin, 921 F.3d at 610–11. For instance, “we have
held, relying on Ercegovich, that a plaintiff claiming racial discrimination was similarly situated
to a non-protected employee even though the two individuals “worked in different . . . departments
and had different supervisors.” McMillan v. Castro, 405 F.3d 405, 414 (6th Cir. 2005) (emphasis
in original) (citing Seay v. Tenn. Valley Auth., 339 F.3d 454, 479 (6th Cir. 2003)). That Blewett
and Green did not have identical job duties, then, does not necessarily defeat her claims.
But Blewett has not presented evidence from which a reasonable jury could find that she
and Green had similar performance issues. Blewett’s performances issues are well-documented
in the record. Her 2018 performance review, though positive in many respects, identified clear
areas for improvement, including that her cashbook “was not accurate nor completed on a timely
basis” and that her efforts to remedy these errors included “instances where changes took weeks
or months to correct and complete.” R. 19-1, Ex., PageID 347–48. Her 2019 and 2020
performance reviews both documented continued struggles to complete her work satisfactorily and
on time. Blewett’s 2020 performance review, which was completed two months before her
termination, described persistent issues in these and related areas: “completing assignments and
meeting deadlines seem to be a big problem . . . [a]t one point it seemed to be getting better but
has since still remains a great concern”; “LaDonna also makes numerous errors on assignments
that she has done numerous times (for example journal entries and cashbook). The time that it
takes to redo most of her work wastes valuable time and often leads to confusion not only within
Treasury but with the Accounting team”; “LaDonna at most times refuses to be accountable for

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her performance.” R. 18-2, Ex. B, PageID 324. Consistent with these representations, Blewett’s
“Dependability and Reliability” rating declined over time, from “Achieved Expectations” in 2018,
to “Minimally Satisfactory” in 2019, and finally to “Unacceptable” in 2020.
The record is comparatively thin regarding how well Green performed her job
responsibilities. Blewett points to one piece of evidence concerning Green’s timeliness or the
quality of her work product: according to Blewett’s deposition testimony, she recalled seeing an
email indicating that 150 days had elapsed on one of Green’s credit card reconciliation
assignments. Viewing the evidence in the light most favorable to Blewett, a reasonable jury could
find that Green was 150 days late on a credit card reconciliation, and that this assignment was
similar in at least some respects to Blewett’s wire-transfer reconciliation assignments. There is
some uncertainty in the record regarding how this 150-day delay compares to Blewett’s struggles
to complete her assignments on time—namely that the parties have advocated different
interpretations of the note in Blewett’s 2020 performance review that she “was late completing the
cashbook 101 days out of 214 which is 47% of the time late.” R. 18-2, PageID 326. According
to Howard-Whisett and the City, this statement meant Blewett was late on 101 deadlines over the
course of the year, but Blewett suggested in her deposition that it meant she was late one time by
101 days and now suggests she was terminated “based on allegations that her cashbook
reconciliation was 101 days late.” In the same deposition, Blewett denied being 101 days late on
a single assignment and, when asked whether she was aware of any times she was late, responded
as follows: “I probably was—I can’t recall, but I probably was late due to something, I don’t know,
but 101 days, no.” R. 15-2, Ex. A - Blewett Tr., PageID 191. Yet Blewett does not dispute that
she was regularly late on assignments, and, in any event, “convenient memory lapses do not create

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factual disputes that are genuine.” Boykin v. Family Dollar Stores of Mich., LLC, 3 F.4th 832, 839
(6th Cir. 2021).
Moreover, regardless of how many times Blewett was late in 2020 or by how many days,
the record contains evidence of persistent performance issues from 2018 to 2020 related to her
timeliness and dependability, as well as the quality of her work product. These issues go far
beyond the evidence Blewett cites regarding Green’s performance issues, which suggests at best
that she was very late on a single assignment. Because Blewett and Green were not similarly
situated in their performance issues, they were not similarly situated in all relevant respects. See
Ercegovich, 154 F.3d at 352. For this reason alone, Howard-Whisett and the City were entitled to
summary judgment on the Equal Protection and ELCRA employment discrimination claims.
B. Hostile Work Environment
That leaves Blewett’s claim that she was subjected to a hostile work environment in
violation of ELCRA. To prevail on a hostile work environment claim based on race under either
Title VII or ELCRA, a plaintiff must establish five elements: (1) that she belongs to a protected
class, (2) that she experienced unwelcome harassment, (3) that the harassment was based on her
race, (4) that the harassment was intended to or did substantially interfere with her employment,
and (5) that the defendant knew or should have known about the harassment but failed to act.
Khalaf v. Ford Motor Co., 973 F.3d 469, 482 (6th Cir. 2020). A plaintiff can demonstrate that
harassment was based on race (the third element) either by “pointing to the use of race-specific
and derogatory terms or by offering direct comparative evidence about how the alleged harasser
treated members of other races.” Strickland v. City of Detroit, 995 F.3d 495, 503 (6th Cir. 2021)
(citation modified). “Whatever evidentiary route the plaintiff chooses to follow, he or she must
always prove that the conduct at issue was not merely tinged with offensive . . . connotations, but

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actually constituted discrimination” on the basis of race. Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 81 (1998) (citation modified).
Blewett testified that sometime in late 2018 or early 2019, she made a complaint to Human
Resources regarding a white employee from outside her department, Rob Rice, who said
something to Blewett to the effect of “where is your slave driver.” She also testified that Rice was
disciplined as a result of this incident, receiving two weeks of suspension. Thus, although this was
a “race-specific and derogatory” comment, Strickland, 995 F.3d at 503, a reasonable jury could
not find that Howard-Whisett and the City failed to act in response to this incident. See Khalaf,
973 F.3d at 482.
Separately, Blewett contends she was subjected to a hostile work environment in
comparison to Howard-Whisett’s treatment of Green. But for the same reasons that Blewett and
Green were not similarly situated for employment-discrimination purposes, Blewett cannot prevail
in her hostile work environment claim on a comparative-evidence theory because a reasonable jury
could not find on this record that Blewett experienced discriminatory harassment because of her
race in comparison to Green. See id.; Oncale, 523 U.S. at 81. Indeed, when she was asked during
her deposition, “Do you think that [Howard-Whisett] made those statements about I can fire you
off the cash book and every other thing that you testified to that created a hostile work environment,
do you think she did those things because you’re African American?,” Blewett said “No.” R. 15-
2, Ex. A - Blewett Tr., PageID 186. Thus, although Blewett points to evidence sounding in both
evidentiary routes to proving a hostile work environment claim (“race-specific and derogatory
terms” and comparator evidence), Strickland, 995 F.3d at 503, she can prevail on neither.
Howard-Whisett and the City were entitled to summary judgment on all claims.

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IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order granting summary
judgment to Howard-Whisett and the City.

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