Chantena Kinney v. Denis McDonough ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0047n.06
No. 21-1414
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 26, 2022
CHANTENA KINNEY, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
DENIS RICHARD MCDONOUGH, Secretary, ) DISTRICT OF MICHIGAN
Department of Veteran Affairs, )
)
Defendant-Appellee. )
)
Before: BATCHELDER, ROGERS, and WHITE, Circuit Judges.
PER CURIAM. Plaintiff-appellant Chantena Kinney appeals the dismissal of her
complaint, which alleged that the Department of Veterans Affairs (VA) discriminated against her
on account of her age and race and in retaliation for her protected Title VII activity. For the reasons
set forth below, we AFFIRM.
I.
A.
Plaintiff-appellant Chantena Kinney was employed as a Licensed Practical Nurse (LPN)
on the Patient Aligned Care Team (PACT) at the Battle Creek VA Medical Center in Battle Creek,
Michigan. She filed her first formal Equal Employment Opportunity (EEO) complaint in March
2011. That complaint was resolved through a settlement agreement the following month. On
February 26, 2016, Kinney filed another EEO complaint alleging that she experienced retaliation
No. 21-1414, Kinney v. McDonough
for her prior EEO activity and a hostile work environment.1 The VA’s Office of Resolution
Management (ORM) accepted the following claims and bases related to Kinney’s February 26,
2016, EEO complaint:
Whether complainant was subjected to a hostile work environment based on
reprisal (prior EEO Activity) and age as evidenced by the following events:
Event 1: On December 18, 2015, [Kinney’s supervisor] informed her that her
workspace would be moved closer to Dr. Paul Anthony which prevented her from
having access to printers, copier, etc.
Event 2: On January 4, 2016, [Kinney] was suspended from employment for seven
(7) calendar days.
Event 3: On February 3, 2016, [Kinney] assisted [a registered nurse] with an EKG,
and later the RN reported her to management.
Event 4: On February 11, 2016, [Kinney] was given a full clinic, but other [LPNs]
were not.
Event 5: On March 2, 2016, [Kinney] was assigned to clinic A2 from 0800 to 12
noon.
Event 6: On March 11, 2016 [a registered nurse] requested that [Kinney] [take] over
a clinic, but failed to give . . . (LPN’s/coworkers) a clinic.
Event 7: On March 16, 2016, [Kinney] received an instant message (IM) from . . .
[the] Urgent Care Supervisor advising that he received a call from someone on the
A team stating that [Kinney] was not doing her job.
Event 8: On March 15, 2016, [a registered nurse] gave her assignments, but did not
make sure that the assignments were distributed fairly or equally.
Event 10: On May 11, 2016, [Kinney] was detailed to the Medical Unit, 82-1.
Event 11: On June 10, 2016, [Kinney] was detailed to the Housekeeping Section
although her title is “Nurse”
Event 12: Beginning October 30, 2016 through November 5, 2016, [Kinney] was
suspended from employment for seven (7) calendar days.
R.10-5, PID 67.
1
The complaint was not received by the Department of Veterans Affairs Office of Resolution Management (ORM)
until March 7, 2016.
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On March 2, 2018, Kinney filed a second EEO complaint. As accepted by ORM, Kinney’s
complaint was as follows:
Whether complainant was subjected to a hostile work environment based on reprisal
(prior EEO activity) as evidenced by the following events:
1. On August 14, 2017, [the] Chief of Clinical Health[] failed to act when [a]
coworker[] allowed a door to shut in [Kinney’s] face, rather than holding it open
for her.
2. On November 15, 2017, [the Chief of Clinical Health] failed to act when [a]
coworker[] shut the door in [her] face.
3. On November 15, 2017, [the Chief of Clinical Health] moved [Kinney] to another
department following an altercation with [a] coworker . . . .
4. On or about January 25, 2018, [the Chief of Clinical Health] cancelled a meeting
with [Kinney] and her attorney due to the commencement of an administrative
board of investigation (ABI).
5. On or about February 5, 2018, [the Chief of Clinical Health] required [Kinney] to
participate in an ABI.
6. On December 6, 2018, [the] Medical Center Director[] issued [Kinney] a removal
letter, effective December 12, 2018.
R.10-8, PID 82.
ORM conducted an investigation into Kinney’s March 2018 EEO complaint and issued an
investigative report on February 13, 2019. On February 19, 2019, Kinney’s counsel indicated
through email to the ORM investigator assigned to Kinney’s case that Kinney was alleging race
as a basis of discrimination, and stated that Kinney was “Black & African American.” R.10-10,
PID 89. However, Kinney did not formally move to amend her EEO complaint to add a claim for
race discrimination, and the investigative report issued on February 13, 2019, did not mention race
discrimination. Kinney did not file an appeal with the Merit Systems Protection Board (MSPB).
Kinney’s investigation file was transferred from ORM to the VA’s Office of Employment
Discrimination Complaint Adjudication (OEDCA), which issued a final decision on January 28,
2020.
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In its decision, the OEDCA determined that Kinney had failed to demonstrate by a
preponderance of the evidence that she had been retaliated against as alleged. With regard to
Kinney’s temporary detail and removal (Events 3 and 6), the OEDCA found that although Kinney
had made out a prima facie case of reprisal, the VA had provided legitimate, non-pretextual reasons
for the challenged actions. As to Kinney’s remaining claims of harassment, the OEDCA found
that Kinney failed to demonstrate that the VA had “subjected her to unwelcome conduct that was
sufficiently severe or pervasive so as to create an unlawful hostile work place environment.” R.10-
11, PID 100–01. No race discrimination claims were addressed in the Final Agency Decision.
On March 6, 2020, after this case was filed, the VA moved to dismiss Kinney’s February
2016 EEO complaint pursuant to 29 C.F.R. §§ 1614.109(b) and 1614.107(a)(3) on the ground that
almost all of the factual allegations in Kinney’s district-court complaint were the same as those
contained in her February 2016 EEO complaint. The Equal Employment Opportunity Commission
(EEOC) granted the motion on April 13, 2020. The OEDCA implemented that decision by issuing
a Final Order on April 23, 2020. Kinney did not appeal that decision.
B.
Kinney initiated this action by filing a complaint alleging that the OEDCA’s Final Agency
Decision resolving her March 2018 EEO complaint and “denying that the plaintiff was
discriminated as alleged is unfounded according to the laws set forth in Title VII . . . and federal
sector equal opportunity regulations.” R.1, PID 6. Kinney subsequently filed an amended
complaint adding a claim for discrimination based on race and seeking judicial review of both the
Final Agency Decision resolving her March 2018 EEO complaint and the dismissal of her
February 2016 EEO complaint.
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The VA moved to dismiss the amended complaint, and the district court granted the
motion. The district court found the complaint “deficient in several ways.” R.17, PID 154. For
example, it noted that Title VII does not cover age-discrimination claims, and that the amended
complaint does not state Kinney’s race or her age.2 Therefore, the district court determined,
Kinney had failed to plead membership in a protected class. The court also held that Kinney had
failed to establish a prima facie case of disparate treatment. It further held that there was a “dearth
of facts” regarding whether Kinney was discriminated against in retaliation for her prior EEO
activity. R.17, PID 156. To the extent Kinney was attempting to bring a hostile-work-environment
claim, the court rejected that claim because Kinney had failed to plead that any alleged workplace
harassment was on account of her race or age. The court concluded that Kinney merely
complained of “the sort of petty workplace friction that does not rise to the level of actionable
harassment.” R. 17, PID 157. Kinney did not seek leave to file a second amended complaint.
This appeal followed.
II.
We review de novo a district court’s grant of a motion to dismiss pursuant to Rule 12(b)(6).
Cooper Butt ex rel Q.T.R. v. Barr, 954 F.3d 901, 904 (6th Cir. 2020). A Rule 12(b)(6) motion is
properly granted where the complaint “fail[s] to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
2
The court nevertheless analyzed Kinney’s age discrimination claims under the Age Discrimination in Employment
Act (ADEA), but found that she had failed to plead any claim for age discrimination under the ADEA.
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No. 21-1414, Kinney v. McDonough
Twombly, 550 U.S. at 556). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, however, it must assert sufficient facts to provide the
defendant with fair notice of what the . . . claim is and the grounds upon which it rests.” Rhodes
v. R & L Carriers, Inc., 491 F. App’x 579, 582 (6th Cir. 2012) (quotations omitted).
A.
We begin with the threshold matter of whether Kinney properly pleaded her age and race.
In granting the VA’s motion to dismiss, the district court found that Kinney had failed to plead
membership in a protected class, noting that the sole reference to race or age in the amended
complaint was a line in the first paragraph stating that this “action is for discrimination on account
of age, race, and reprisal.” R.17, PID 155. We agree with the district court that there is nothing
in the amended complaint indicating Kinney’s race or age.
In the proceedings below, Kinney argued that her failure to plead her age and race was
immaterial because “specific factual allegations aren’t required”; rather, only direct or inferential
allegations regarding all material elements of her claim were necessary at the motion to dismiss
stage. R.14, PID 118. Kinney asserted that she met this requirement because the events in her
EEO complaints were mentioned in the OEDCA’s Final Agency Decision resolving her March
2018 EEO complaint, and because her amended complaint in this action mentioned the events in
her February 2016 EEO complaint. On appeal, Kinney argues that this action is an administrative
appeal and that “the EEOC record” from the administrative proceedings below indicates that her
color is Black, she is African American, and that she is fifty-six years old. Appellant Br. at 7. But
this action is not an appeal of the disposition of Kinney’s March 2018 EEO complaint; nor is it an
appeal of the OEDCA’s final order dismissing her February 2016 EEO complaint.
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Kinney’s March 2018 EEO complaint consisted of both “mixed” and “non-mixed” claims.
Federal regulations define a “mixed case complaint” as “a complaint of employment
discrimination filed with a federal agency based on race, color, religion, sex, national origin, age,
disability, or genetic information related to or stemming from an action that can be appealed to the
Merit Systems Protection Board (MSPB).” 29 C.F.R. § 1614.302(a)(1); see also Butler v. West,
164 F.3d 634, 638 (D.C. Cir. 1999) (describing mixed case as “an adverse personnel action subject
to appeal to the MSPB coupled with a claim that the action was motivated by discrimination.”).
An employee pursuing a mixed case can either file a “mixed case complaint with her agency’s
EEO office,” or a “mixed case appeal directly with the MSPB.” See Butler, 164 F.3d at 638(quotations omitted). Where, as here, the employee chooses the agency EEO route, “within thirty
days of a final decision she can file an appeal with the MSPB or a civil discrimination action in
federal district court.” Id. (citing 29 C.F.R. §§ 1614.302(d)(1)(ii), 1614.302(d)(3), 1614.310(a)).
Section 1614.302(d)(1)(ii) of Title 29 of the Code of Federal Regulations provides that
“[i]f the complainant is dissatisfied with the agency’s final decision on the mixed case complaint,
the complainant may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the
agency’s final decision.” 29 C.F.R. § 1614.302(d)(1)(ii). Section 1614.302(d)(3), in turn, provides
that “[a]t the time that the agency issues its final decision on a mixed case complaint, the agency
shall advise the complainant of the right to appeal the matter to the MSPB (not EEOC) within
30 days of receipt and of the right to file a civil action as provided at § 1614.310(a).” Id.
§ 1614.302(d)(3). Section 1614.310(a) provides that an individual such as Kinney may file a civil
action “[w]ithin 30 days of receipt of a final decision issued by an agency on a complaint unless
an appeal is filed with the MSPB.” Id. § 1614.310(a).
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As these provisions make clear, an appeal of an adverse agency decision on a mixed-case
complaint is taken to the MSPB, and the civil-discrimination action that a complainant may file
instead is not such an appeal. See Valentine-Johnson v. Roche, 386 F.3d 800, 805 (6th Cir. 2004)
(“Should she elect the agency EEO route, within thirty days of a final decision she can file an
appeal with the MSPB or a civil discrimination action in federal district court.”). Kinney did not
file such an appeal with the MSPB, so this action is not properly characterized as an appeal of the
underlying agency decision resolving her mixed claim.
Kinney’s March 2018 EEO complaint also contained non-mixed claims. Appeals of non-
mixed claims are taken to the EEOC. See 29 C.F.R. §§ 1614.401, 1614.403(a); see also Smith v.
Potter, 445 F.3d 1000, 1002 n.1 (7th Cir. 2006) (“Once an agency has dismissed or otherwise
disposed of a complaint, federal employees have the right to appeal that decision to the EEOC, see
29 C.F.R. §§ 1614.403 et seq., or file a complaint in federal court, see 29 C.F.R. § 1614.407.”),
overruled on other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013). Kinney did not
appeal her non-mixed claims to the EEOC.
Similarly, this action is not an appeal of the OEDCA’s final order dismissing Kinney’s
February 2016 EEO complaint. The OEDCA granted the VA’s motion to dismiss the February
2016 complaint pursuant to 29 C.F.R. § 1614.109(b) and 1614.107(a)(3). Section 1614.109(b)
permits administrative judges to dismiss administrative complaints on grounds listed in section
1614.107, which includes when an administrative complaint “is the basis of a pending civil action
in a United States District Court in which the complainant is a party.” 29 C.F.R. § 1614.107(a)(3).
Although a complainant may appeal such a dismissal, see 29 C.F.R. § 1614.401(a), such appeals
must be taken to the EEOC. See 29 C.F.R. § 1614.403(a).
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Although a complainant may—and Kinney did—file a civil action to vindicate her claims,
see 29 C.F.R. § 1614.407(a), 42 U.S.C. § 2000e-16(c), such actions are considered de novo civil
actions. See 5 U.S.C. § 7702(e)(3) (“Nothing in this section shall be construed to affect the right
to trial de novo under any provision of law described in subsection (a)(1) of this section after a
judicially reviewable action, including the decision of an agency under subsection (a)(2) of this
section.”); see also Chandler v. Roudebush, 425 U.S. 840, 861 (1976) (Congress “faced a choice
between record review of agency action based on traditional appellate standards and trial de novo
of Title VII claims. The Senate committee selected trial de novo as the proper means for resolving
the claims of federal employees.”); Smith v. Perkins Bd. of Educ., 708 F.3d 821, 827 (6th Cir.
2013) (stating that the Supreme Court “recognized Congress’ intent that Title VII plaintiffs receive
de novo trials in federal court”).
Accordingly, this action is not an appeal of either of the two underlying decisions resolving
Kinney’s February 2016 EEO and March 2018 EEO complaints.
Kinney also argues that the exhibits attached to the pleadings before the district court
indicate her race and color. Although Kinney did not attach any exhibits to her amended
complaint, the VA attached portions of the administrative record as exhibits to its motion to
dismiss. “A court evaluating a motion to dismiss may . . . consider ‘the complaint and any exhibits
attached thereto, public records, items appearing in the record of the case and exhibits attached to
defendant’s motion to dismiss so long as they are referred to in the complaint and are central to
the claims contained therein.” Luis v. Zang, 833 F.3d 619, 632 (6th Cir. 2016) (quoting Kreipke
v. Wayne State Univ., 807 F.3d 768, 774 (6th Cir. 2015)). Because Kinney did not attach any
exhibits to her amended complaint, the question here is whether the exhibits attached to the VA’s
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motion to dismiss referencing Kinney’s race and age “are referred to in the [amended] complaint.”
Id.No exhibit attached to the VA’s motion to dismiss references Kinney’s age. The only
exhibit that references Kinney’s race is an email from Kinney’s counsel to the EEO investigator
stating that her “Color and Race” are “Black & African American.” R.10-10, PID 89. But Kinney
did not refer to this email in her amended complaint, so the district court did not err in declining
to consider the email in determining whether Kinney had properly pleaded her race and age.3
Accordingly, we find no error in the district court’s conclusion that Kinney failed to plead
membership in a protected class.
B.
We turn next to Kinney’s hostile-work-environment claim. The district court found that
Kinney had failed to properly plead a claim for hostile work environment. After reciting the
elements of a prima facie case for hostile work environment based on race and age,4 the district
court observed that Kinney had failed to allege that the claimed adverse employment actions were
taken because of her race or age. It also found that the actions about which she complained were
nothing more than petty workplace friction that did not rise to the level of actionable harassment.
To the extent the district court dismissed the claim for failure to allege facts making out a
prima facie case for a hostile work environment, this was error. The Supreme Court “has never
indicated that the requirements for establishing a prima facie case under McDonnell Douglas also
3
Although Exhibit 3 attached to Kinney’s opposition to the VA’s motion to dismiss, a VA ORM counsel report, states
that Kinney is alleging discrimination on the basis of race and that her race is Black, the district court did not err in
declining to consider this exhibit because it is not referred to anywhere in the amended complaint. See Luis, 833 F.3d
at 632.
4
These elements are (1) membership in a protected class; (2) the plaintiff was subjected to unwelcome harassment;
(3) the harassment was due to a protected characteristic; (4) the harassment had the effect of unreasonably interfering
with the plaintiff’s work performance by creating an intimidating, hostile, or offensive work environment; and (5) the
existence of employer liability. See Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999) (Title VII); Crawford v.
Medina Gen. Hosp., 96 F.3d 830, 834–35 (6th Cir. 1996) (ADEA).
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apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.”
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973)). The McDonnell Douglas framework is “an evidentiary standard,
not a pleading requirement.” Id. at 510; see also James v. Hampton, 592 F. App’x 449, 460 (6th
Cir. 2015) (“Although it is ultimately [the plaintiff]’s burden either to establish the elements of the
prima facie case under McDonnell Douglas or to offer direct evidence of discrimination, the
Supreme Court has held that McDonnell Douglas sets an evidentiary standard, not a pleading
requirement.”) (citing Swierkiewicz, 534 U.S. at 510); Keys v. Humana, Inc., 684 F.3d 605, 609
(6th Cir. 2012) (“The district court’s requirement that [the plaintiff]’s complaint establish a prima
facie case under McDonnell Douglas and its progeny is contrary to Supreme Court and Sixth
Circuit precedent.”).
On a motion to dismiss a hostile-work-environment claim, “the ordinary rules for assessing
the sufficiency of a complaint apply.” Swierkiewicz, 534 U.S. at 511. That is, “only ‘a short and
plain statement of the claim showing that the pleader is entitled to relief’” is required. Id. at 508(quoting Fed. R. Civ. P. 8(a)(2)). As we stated in Crowder v. Railcrew Xpress, 557 F. App’x 487
(6th Cir. 2014) (per curiam), “[t]he correct standard is the ‘plausibility’ standard in Twombly and
Iqbal.” Id. at 492. “The central inquiry of a Title VII claim is whether an employer discriminated
against an employee because of her ‘race, color, religion, sex, or national origin.’” Primm v. Dep’t
of Human Servs., No. 16-6837, 2017 WL 10646487, at *2 (6th Cir. Aug. 17, 2017) (order) (quoting
42 U.S.C. § 2000e-2(a)(1); citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Although the district court “impermissibly applied what amounted to a heightened pleading
requirement by insisting that” Kinney allege “specific facts beyond those necessary to state [her]
claim,” Primm, 2017 WL 1064687, at *2 (quoting Twombly, 550 U.S. at 570) (quotations omitted),
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we may “affirm the judgment on any basis supported by the record.” Id. (quoting Angel v. Ky.,
314 F.3d 262, 264 (6th Cir. 2002)).
Here, the district court’s underlying reasoning is sound insofar as it found that Kinney
failed to state a claim for hostile work environment. See Primm, 2017 WL 10646487, at *2. The
complaint does not state Kinney’s race or sex and the amended complaint does not reference the
exhibit attached to the motion to dismiss that references Kinney’s race. Because the amended
complaint does not properly allege that Kinney is a member of a protected class, her claim fails.
See id. Moreover, without these factual allegations, Kinney has not provided the VA with “fair
notice of the basis for [her] claims” as required by Rule 8. See Swierkiewicz, 534 U.S. at 514.
Accordingly, we affirm the district court’s dismissal of Kinney’s hostile-work-environment
claim.5
C.
The district court also dismissed Kinney’s disparate-treatment claim on the grounds that
she failed to properly plead her age and race and because she had failed to plead the prima facie
elements of her claim. The court noted, for example, that Kinney had not alleged that she was
qualified for her position or that similarly situated employees outside her protected class were
treated better than she was.
As with Kinney’s hostile-work-environment claim, the district court improperly required
Kinney to plead a prima facie case for her disparate-treatment claim. Again, at this stage of the
litigation, all that is required is that Kinney provide a “short and plain statement showing that [she]
is entitled to relief.” See Fed. R. Civ. P. 8(a)(2); see also Swierkiewicz, 534 U.S. at 508; Tchankpa
v. Ascena Retail Grp., Inc., 951 F.3d 805, 817 (6th Cir. 2020). The “central inquiry” for a Title
5
We need not address the VA’s separate argument that Kinney forfeited her claim that she suffered a hostile work
environment based on age, having determined that Kinney failed to properly plead both her race and age.
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VII claim, Primm, 2017 WL 10646487, at *2, is whether an employer discriminated against an
individual with respect to her compensation, terms, conditions, or privileges of employment on
account of her race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1); see also
Harris, 510 U.S. at 21. At the pleading stage, the complaint need only state “sufficient factual
content from which a court could draw the reasonable inference of racial discrimination.” James,
592 F. App’x at 461 (quotations omitted).
In James, this court held that the plaintiff had satisfied the pleading requirements for a
disparate-treatment claim based on race because “[s]he identifie[d] herself as a member of a
protected class, detail[ed] the JTC’s investigation against her both prior and subsequent to her
suspension from her judgeship, and identifie[d] and describe[d] the misconduct of five white state
court judges who were not investigated or disciplined by the JTC.” Id. at 461. By contrast, in
Tchankpa, we affirmed the district court’s dismissal of the plaintiff’s disparate-treatment claim
based on disability where the plaintiff alleged only that “several employees on Mr. Patel’s team
were allowed to work from home” but the plaintiff was not. 951 F.3d at 818. We stated that
disparate treatment arises from employers “treat[ing] some people less favorably because of their
. . . [protected characteristics],” id. (quoting Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003)),
but noted that there was nothing in the complaint to indicate that the plaintiff’s employer had
“treated him differently with a discriminatory animus stemming from [plaintiff]’s disability.” Id.This case is more like Tchankpa. Because the district court properly dismissed Kinney’s disparate
treatment claim in part because the amended complaint does not allege her age or race, meaning
that Kinney failed to allege “sufficient ‘factual content’ from which a court could ‘draw the
reasonable inference’” that she was discriminated against based on her age or race, James, 592 F.
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App’x at 461, we affirm the district court’s dismissal of Kinney’s disparate treatment claim. See
Tchankpa, 951 F.3d at 818; Primm, 2017 WL 1064687, at *2–3.
D.
Kinney also failed to state a cause of action for retaliation because she did not allege
sufficient facts to support the causation requirement and more generally failed to state the grounds
for relief. “Title VII prohibits discriminating against an employee because that employee has
engaged in conduct protected by Title VII,” which includes filing EEO complaints. Laster v. City
of Kalamazoo, 746 F.3d 714, 729–30 (6th Cir. 2014).
Kinney did not sufficiently allege that the adverse employment actions were in response to
her EEO complaints, so she cannot show a causal connection. To demonstrate causation, the
plaintiff “must establish that his or her protected activity was a but-for cause of the alleged adverse
action by the employer.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). A
plaintiff fails to meet the causation requirement if the complaint “does not allege any facts to
support a causal link between her claimed protected activities and her [adverse employment
actions].” Koutsoukos v. Adecco USA, Inc., No. 16-2610, 2017 WL 5514558, at *2 (6th Cir. July
14, 2017) (citing Allen v. Mich. Dep’t of Corr., 165 F.3d 405, 413 (6th Cir. 1999)). Kinney’s
complaint did not allege that her filing of EEO complaints, a protected activity, caused the
allegedly adverse employment actions. The complaint failed to state facts that would support a
conclusion that the adverse employment actions were taken to punish her for exercising protected
rights instead of for some other reason, such as job performance or staffing issues. Kinney’s sparse
and conclusory assertions that her colleagues were treated differently, without any further factual
allegations about whether Kinney’s superiors knew that she engaged in protected activity or how
the differential treatment was supposedly adverse, are not enough to show causation. A complaint
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must allege sufficient facts to state a plausible claim, which “asks for more than a sheer possibility
that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. While it is true that Kinney’s
complaint states that some allegedly adverse employment actions occurred shortly after she
engaged in protected activity, that proximity alone is not enough. “Temporal proximity alone
generally is not sufficient to establish causation,” and “[e]xceptions to this rule are ‘rare,’ even in
instances involving relatively short time periods.” Kenney v. Aspen Techs., Inc., 965 F.3d 443,
449 (6th Cir. 2020) (quotation omitted). The complaint’s lack of sufficient facts supporting the
causation requirement demonstrates that it fails to meet the standard of stating a plausible claim.
It is true that a complaint does not need to establish a prima facie case of retaliation or
contain “detailed factual allegations” in order to survive a motion to dismiss. See Keys, 684 F.3d
at 609–10 (6th Cir. 2012) (quoting Iqbal, 556 U.S. at 679). But in this case, the complaint’s
deficiencies go beyond merely its lack of sufficient facts to support the causation requirement,
because the complaint suffers from a more fatal flaw. Here, Kinney did not even put the VA on
notice that she was stating a retaliation claim. The plaintiff has an “obligation to provide the
grounds of his entitle[ment] to relief.” Twombly, 550 U.S. at 555 (quotation omitted). The
complaint must “give the defendant fair notice of what the . . . claim is and the grounds upon which
it rests.” Kensu v. Corizon, Inc., 5 F.4th 646, 650 (6th Cir. 2021) (quoting Twombly, 550 U.S. at
555). Kinney’s complaint contains only a few brief references to retaliation or reprisal without
further elaboration, and the “claim for relief” section does not mention a retaliation claim. The
complaint thus fails to meet the fundamental pleading requirement that it give the VA notice of
the retaliation claim and the facts supporting that claim.
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III.
For the reasons set forth above, we AFFIRM the district court’s dismissal of Kinney’s
hostile-work-environment, disparate-treatment, and retaliation claims.
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HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part.
I agree that the district court did not err in dismissing Kinney’s hostile-work-environment
and disparate-treatment claims. However, I would reverse the dismissal of Kinney’s retaliation
claim. The VA did not address the retaliation claim in its motion to dismiss. Nevertheless, the
district court addressed the claim along with the other claims.1 In dismissing the retaliation claim,
the district court simply stated that a “dearth of facts” exists regarding whether any of the alleged
adverse employment actions were taken as reprisal for Kinney’s EEO complaints. R.17, PID 156.
On appeal, the VA argues that Kinney failed to plead “but-for” causation and asserts that the
adverse employment actions of which she complains lack sufficient temporal proximity to the EEO
complaints. Kinney argues that fairly read, her complaint states a retaliation claim.
“Title VII’s antiretaliation provision forbids employer actions that ‘discriminate against’
an employee . . . because [s]he has ‘opposed’ a practice that Title VII forbids or has ‘made a charge,
testified, assisted, or participated in’ a Title VII ‘investigation, proceeding, or hearing.’” Primm,
2017 WL 10646487, at *3 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59
(2006)). Kinney’s amended complaint asserts that after she filed her EEO complaints, she was
discriminated against in the form of unequal work assignments, undesirable details to other
sections of the hospital, suspension, and termination.
Although “plaintiffs must state ‘plausible’ grounds for relief, [Twombly and Iqbal] do not
alter the basic rule that plaintiffs must plead only the basic elements of a claim, not develop all of
the facts necessary to support the claim.” Havard v. Wayne Cnty., 436 F. App’x 451, 457 (6th Cir.
2011) (quoting Hebron v. Shelby Cnty. Gov’t, 406 F. App’x 28, 30 (6th Cir. 2010)); see also Keys,
684 F.3d at 608 (“Specific facts are not necessary; the statement need only give the defendant fair
1
Kinney does not argue that the district court should not have addressed this claim.
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notice of what the . . . claim is and the grounds upon which it rests.”) (quoting Erickson v. Pardus,
551 U.S. 89, 93 (2007)); Ctr. For Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th
Cir. 2011) (noting that although a complaint need not contain “detailed factual allegations,” it must
contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”) (internal
quotations omitted). “[T]o survive a motion to dismiss, the complaint must contain either direct
or inferential allegations respecting all material elements to sustain a recovery under some viable
legal theory.’” Eidson v. Tenn. Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007).
Kinney adequately pleaded a retaliation claim. Although Kinney’s complaint does not use
the words “cause” or “causation,” her amended complaint states, “[t]his action is for discrimination
on account of age, race, and reprisal.” R.8, PID 25 (emphasis added). When “constru[ing] the
complaint in the light most favorable to [Kinney], accept[ing] all well-pleaded factual allegations
in the complaint as true, and draw[ing] all reasonable inferences” in her favor, see Courtright v.
City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016), Kinney has plausibly alleged that she was
discriminated against for filing the two EEO complaints. The amended complaint contains
“sufficient factual content from which a court, informed by its judicial experience and common
sense, could draw the reasonable inference” that the VA retaliated against her because she filed
her EEO complaints. See Crowder, 557 F. App’x at 493 (quoting Keys, 684 F.3d at 610).
Specifically, Kinney alleged that after her formal EEO complaint was received by the VA’s ORM
on March 7, 2016, she experienced adverse employment actions on March 11, 15, and 16, 2016;
that after she amended her EEO complaint on April 29, 2016, she was transferred to another unit
on May 11, 2016; that after she amended her EEO complaint on May 13, 2016, she was detailed
to the Housekeeping Section on June 10, 2016, and was suspended for seven days on July 4, 2016;
and that after she amended her EEO complaint on July 19, 2016, she was removed from the PACT
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nursing team on July 29, 2016. Unlike her other claims, which conspicuously fail to plead
Kinney’s age and race, the amended complaint clearly alleges that Kinney filed two EEO
complaints and several amendments, and that she subsequently experienced a variety of adverse
employment actions. Although temporal proximity may prove to be insufficient at some later stage
of the proceedings, Kinney’s allegations are sufficient at the pleadings stage. Accordingly, the
district court erred in dismissing the retaliation claim for failure to state a claim.
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