Judy Canady v. The Gillette Company , 547 F. App'x 670 ( 2013 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 13a0919n.06
No. 13-5326
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JUDY CANADY, ) Oct 24, 2013
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
THE GILLETTE COMPANY, ) THE EASTERN DISTRICT OF
) TENNESSEE
Defendant-Appellee. )
)
OPINION
Before: ROGERS, GRIFFIN, and DONALD, Circuit Judges.
BERNICE B. DONALD, Circuit Judge. Plaintiff-Appellant Judy Canady appeals an order
of the district court granting summary judgment on her state-law retaliatory discharge claim in favor
of Defendant-Appellee, The Gillette Company (“Gillette”).
Canady originally sued Procter & Gamble, Gillette’s parent company, in Tennessee state
court alleging a single claim of retaliatory discharge under Tennessee common law, asserting that
Gillette fired her in retaliation for her suffering a “recordable” workplace injury. On March 11,
2011, Procter & Gamble removed the case to the United States District Court for the Eastern District
of Tennessee on grounds of diversity.
No. 13-5326
Canady v. Gillette
On July 17, 2012, Gillette, who had been substituted for Procter & Gamble in Canady’s
second amended complaint, moved for summary judgment, asserting that Canady was unable to
establish a prima facie case of retaliatory discharge. Gillette argued in the alternative that, even if
Canady had established a prima facie case, the company was still entitled to summary judgment
because it had offered legitimate non-retaliatory reasons for her discharge, which Canady could not
prove were pretextual. Canady opposed this motion. Gillette’s reply argued, among other things,
that Canady’s response primarily relied on inadmissible hearsay evidence.
On March 1, 2013, the district court granted Gillette’s motion for summary judgment on
Canady’s retaliatory discharge claim and dismissed the case. At the outset of its order, the district
court specifically noted that Canady’s support for her factual allegations was largely inadmissible
hearsay and thus could not be considered by the court. This appeal ensued.
For the reasons articulated below, Canady has not established a prima facie claim for
retaliatory discharge under Tennessee common law. Accordingly, we AFFIRM the district court’s
grant of summary judgment to Gillette.
I.
In 1975, Canady began working on the assembly line at a Duracell battery plant in
Cleveland, Tennessee, which Gillette purchased in 2005. For the next thirty-five years, Canady
worked for Gillette and its predecessors, finishing her career as a materials handler/technician.
During that time, Canady suffered a number of work-related injuries, including a 2006 knee injury
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that required surgery and resulted in a $10,000 workers’ compensation settlement. None of
Canady’s prior work-related injuries led to disciplinary action.
Canady worked in the Pack Center, one of two plants at the Duracell site. The Pack Center’s
employee structure included technicians like Canady, line leaders, team leaders, and shift leaders.
Department managers, referred to as “ODLs,” oversaw these employees; Canady’s ODL was Roger
Watkins. All the ODLs reported to NaKeia Grimes, the plant’s operations and business leader, who,
in turn, reported directly to Plant Manager Bill Barkley, the only person with authority to terminate
employees.
Gillette policy required that employees schedule their planned vacation time at the outset of
each year. Employees could, however, retain some vacation days to use as unplanned or
“emergency” vacation. This unplanned time allowed employees to use a vacation day in exchange
for being paid when they needed to miss work on short notice. As of 2010, the “Pack Center
Vacation Scheduling Process & Principles” provided that “[u]nplanned vacation should be requested
within 48 hour notice and requires shift leader and leadership approval.” According to Canady, she
learned about these vacation policies at a meeting in January 2010.
The plant’s written policies did not specify the method by which employees had to request
and obtain approval for emergency vacation time. According to Watkins and Grimes, the
“emergency vacation process” required employees to call a phone number and then complete an
emergency vacation form within twenty-four hours of their return to work. More than one
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employee, however, stated that they had neither seen nor heard of this form. A former ODL
indicated that employees could request emergency vacation in several ways: over the telephone, by
logging a vacation day in the “vacation book,” by completing an emergency vacation request form
to submit to the employee’s ODL, or by entering the vacation time into Gillette’s computer
timekeeping system (“SAP”). Just as there were no written policies explaining how to request
emergency vacation time, there were no written guidelines to aid ODLs in deciding whether to
approve or deny emergency vacation requests.
If an employee took an unplanned day off and failed to secure approval for an emergency
vacation day, that missed day would generally be treated as an unpaid absence. Depending on the
employee’s history, disciplinary action for this absence was possible, but employees stated they had
never heard of anyone being punished for merely requesting emergency vacation, even if the request
was ultimately denied.
Minutes after she reported to work on Friday, January 22, 2010, Canady received a call from
her ninety-four-year-old ex-father-in-law who needed medical care, so Canady tried to take a half
day of emergency vacation to transport him to the hospital. At her daily team safety meeting, she
attempted to speak to ODL Watkins, but he was not there. On the advice of Michael Haun, a former
shift leader and time keeper, Canady went to shift coordinator Tammy Swafford’s office. After
learning that Swafford was in a meeting, Canady returned to Swafford’s office “every hour on the
hour” but was still unable to find her. Canady approached Haun again to ask what she should do.
Haun suggested she make an entry in both the vacation book and SAP and alert her team leader,
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Gerald Barber. Canady logged a half-day personal holiday—another form of time off—in both the
vacation book in Swafford’s office and SAP, alerted Barber as well as several other employees that
she would be leaving, and then departed. Canady did not speak with either Swafford or Watkins
before leaving. Canady concedes that she knew Haun could not approve her vacation request but
stated that she believed Swafford could.
On Sunday, January 24, 2010, using a borrowed phone, Canady left Watkins a voicemail
message explaining that she needed a vacation day on Monday, January 25, to take her ex-father-in-
law home from the hospital and arrange for his care. Canady’s message asked Watkins to call her
back, but she did not leave a return phone number. Because it was off, Watkins’s phone did not
record the number from which Canady called. Watkins remembered this voicemail but stated that
he considered it merely a “courtesy call” alerting him that she would not be at work the next day,
so he did not return it. Although other non-managerial Gillette employees claim that Watkins should
have returned Canady’s call, both Watkins and Grimes indicated that Canady needed to fill out an
emergency vacation form before Watkins would have become responsible for responding to her
request for emergency vacation time.
The next morning, on January 25, Canady called to speak with Swafford but instead spoke
to Jackie Viars, a shift coordinator. Canady stated that she needed to take a vacation day, but Viars
instructed Canady to speak to Watkins. When Canady explained that Watkins had not called her
back, Viars agreed to leave a message for Swafford.
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On Tuesday, January 26, Canady returned to work and coded a vacation day into SAP for
her absence the day before; she did not, however, submit a vacation request form. Although Canady
saw Watkins that morning, she did not attempt to discuss her absence with him. On Friday, January
29, Swafford met with Canady to verify that Canady’s personal time sheets for the pay period that
included January 25 matched with the SAP records before submitting the SAP entries to payroll.
Canady subsequently received pay for her half personal holiday on Friday, January 22 and vacation
day on Monday, January 25.
During the first week of February 2010, Watkins reviewed the payroll variance report from
the two preceding weeks and noticed that Canady had been paid for a vacation day that he had not
approved. Watkins consulted with Swafford to ensure that he did not “miss something” and “to see
if she had any knowledge of [an] emergency vacation request form.” Watkins also alerted Simeon
Baskerville in Gillette Human Resources that there was “a situation that [Watkins] was going to
have to investigate.” At this point, although he had not yet spoken to Canady, Watkins understood
that he had commenced a formal investigation.
The next week, on Monday, February 8, 2010, Canady was injured by a “tote,” a fiberglass
container that holds batteries while line workers inspect them. As Canady pushed a button to “call
down” a tote, the machine propelled the tote with such force that it “jumped the safety bar and
twisted” to hit Canady near her right eyebrow. After neither Canady nor the on-site nurse were able
to stanch the ensuing bleeding, an ambulance transported Canady to the hospital where she received
a shot of pain medication and eight stitches.
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Watkins followed Canady to the hospital and remained with her until her discharge. During
the roughly ninety minutes Canady and Watkins were together at the hospital, they talked generally
about the medical care Canady was providing for her ex-father-in-law, but the two did not discuss
either the accident that had just occurred or Watkins’s investigation into Canady’s unapproved
vacation. While Canady was still in the hospital, Watkins, following what he believed to be
company policy after a workplace accident, requested that Canady submit to a drug screen. After
her discharge, Watkins drove Canady back to work; Canady then went home for the rest of the day.
Because Canady required stitches, her accident qualified as “recordable,” meaning that it counted
against the plant’s safety statistics.
On the afternoon of February 8, after he returned from the hospital, Watkins “did a quick
little formal documentation” for the investigation into Canady’s unapproved vacation request.
Watkins also alerted Grimes of the investigation into Canady’s unapproved vacation.
On February 9, 2010, Canady participated in an investigation of the accident that had
occurred the day before. According to Canady, while investigations were usually simple one-on-
one affairs involving nine questions designed to assess fault, this investigation involved numerous
other people including Grimes and a “safety man.” At the outset of the investigation, Barry
Rinks—a non-managerial employee who served as Canady’s line leader—suggested that the
accident must have been Canady’s fault because he had been putting up totes the same day and had
not been similarly injured. The “safety guy,” however, concluded that the accident transpired as
Canady described. The investigation team ultimately found that Canady was not at fault;
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accordingly, she was not written up or disciplined. According to Canady, Grimes appeared irritated
that Canady had not been found at fault.
At the conclusion of that investigation, Canady met with Watkins to discuss her unapproved
time off; at Watkins’s request, Rinks took notes during this meeting. According to Canady, Watkins
threw down the time-keeper report and stated that “there’s going to be consequences” before
ordering Canady to return to her work station. According to Watkins, Canady admitted that she
should have talked to him and that both Viars and Swafford had told her to speak to him. Watkins
also indicated that Canady stated she knew she should have submitted a vacation form and that she
did not know why she had not done so. Both sides agree that Canady said that she had tried to call
Watkins, and Watkins acknowledged receiving her voicemail.
Still on Tuesday, February 9, Grimes also met with Canady to discuss her unapproved time
off. Grimes’s notes from the meeting state that she told Canady that it had been Canady’s
responsibility to obtain Watkins’s approval before coding an absence as vacation. These notes also
indicate that Canady had claimed that Haun had approved her for a half day of personal holiday on
January 22, that Canady acknowledged that she should have spoken to Watkins before logging her
vacation time in SAP, and that Canady did not recall why she did not follow up with Watkins about
her emergency vacation request. Although Canady’s memory of this conversation is somewhat
hazy, she recalls Grimes’s asking her about Haun and her explaining that, while she had asked Haun
what to do, she was aware that Haun could not approve her emergency vacation. Canady admits that
she “probably” told Grimes that she should have spoken to Watkins but counters that she also told
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Grimes that Watkins should have spoken to her about whether she could have the day off. At the
end of this meeting, Grimes said that she needed to speak with Baskerville and that she would get
back to Canady regarding how the situation would be handled.
After this meeting, Grimes spoke to Haun, who stated that he had given Canady advice about
to whom she needed to speak but had also explained that he could not approve time off. Grimes then
interviewed Swafford, who confirmed that she had verified Canady’s time off in SAP but had not
approved this time off because, as a shift coordinator, Swafford lacked authority to do so. Grimes
also spoke to Barber, Canady’s team leader, who reported that Canady had approached him on
January 22 to explain that she was going home and that “they” were aware that she was doing so.
The following day, Canady met with Grimes again while Baskerville took notes on the
conversation. In that meeting, Grimes again asked Canady who had approved her half-day personal
holiday on January 22, 2010. According to Canady, she repeated the instructions that Haun had
given her when she could not find Swafford and claimed that Swafford must have approved her
vacation time because she had already been paid for those days. The notes from this meeting,
however, indicate that Canady had “insisted” that Haun had approved her time off and that Canady
claimed to have “worked” her time off with Barber. Grimes advised Canady that Gillette
management would consider how to respond to her taking unauthorized personal holiday and
emergency vacation time.
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That same day, February 10, 2010, Watkins and Grimes completed a Corrective Action
Summary Form, which stated that management had encountered a problem with Canady’s
“Falsification of documentation; Recording unauthorized vacation into SAP & Vacation Log Book
and Lying in an Investigation.” The description of the incident stated:
On Sunday, 1/24/10, Judy [Canady] called Roger Watkins and left a voicemail
requesting emergency vacation for the following day. On Monday morning
[Canady] had not heard back from [Watkins] so she called Jackie Viars to request a
personal holiday or emergency vacation. [Viars] told [Canady] she would make note
her absence but could not grant her a personal holiday or emergency vacation.
[Canady] returned to work to work on Tuesday, 1/26, and record a vacation day in
the vacation book for the previous day. She did not talk to [Watkins] as [Viars]
instructed (or as outlined in the Pack Center Vacation Scheduling Process and
Principles) to get approval for a vacation day. When asked why she did not speak
with [Watkins] she said she wasn’t sure why but acknowledged that she should have
done so.
[Canady] was not truthful in the investigation but it was ultimately discovered that
[Canady] recorded unauthorized vacation on 1/22 as well.
On February 15, 2010, Plant Manager Barkley, on the recommendation of Baskerville,
Grimes, and Watkins, terminated Canady for falsifying documents (recording unauthorized paid
time off) and for lying during the investigation (claiming that either Haun or Barber had approved
her half personal holiday). Though Canady’s effective termination date was February 15, 2010, she
was actually placed on administrative leave until March 1, 2010 so that she could be eligible for
early retirement benefits.
After her termination, Canady filed a workers’ compensation claim for the injuries she
sustained on February 8, 2010. Based on the advice of counsel, Canady settled this claim for
$5,000.
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Before filing her complaint in this case, Canady filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”) claiming that she had been terminated
because of her age and because of a disability arising from the knee injury she sustained in 2006.
Canady now insists that her suffering a workplace injury and filing a workers’ compensation
claim—not the issues surrounding her unauthorized paid vacation—were the real reasons for her
termination. While Gillette was indisputably very interested in reducing, if not wholly eliminating,
workplace accidents, Canady alleges that Gillette went so far as to have a policy of terminating
anyone who suffered a recordable injury on the job. Canady further claims that members of Gillette
management would lose their bonuses if there were any recordable accidents. This allegation, which
Canady only corroborates with hearsay evidence,1 directly contradicts statements from multiple
members of Gillette’s management team who indicated that bonuses, when paid, were based on
overall performance and were not influenced by a single employee’s accident.
II.
We review a district court's grant of summary judgment de novo using the familiar
Matsushita-Anderson-Celotex standard. Back v. Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012).
1
In her Response in Opposition to Gillette’s motion for summary judgment, Canady supports
her contentions by pointing to her own deposition testimony. This testimony, however, is based
only on “general knowledge,” “word of mouth,” and “people talking in safety meetings and stuff”
and thus is inadmissible hearsay. See generally Fed. R. Evid. 802. Canady does not offer probative
admissible information from other sources to corroborate her allegations regarding firing and
bonuses.
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Summary judgment is proper where there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A party asserting a genuine
issue of material fact must support this argument either by “citing to particular parts of materials in
the record” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c)(1). We view facts in the record and reasonable inferences that can be drawn
from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We do not weigh evidence, assess credibility
of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986).
The party requesting summary judgment bears an initial burden of demonstrating that no
genuine issue of material fact exists, which it must discharge by producing evidence to demonstrate
the absence of a genuine issue of material fact or “by showing . . . that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-325
(1986) (internal quotation marks omitted). If the moving party satisfies this burden, the nonmoving
party may not “rest upon its . . . pleadings, but rather must set forth specific facts showing that there
is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing
Fed. R. Civ. P. 56; Matsushita, 475 U.S. at 586). The party opposing summary judgment must
present sufficient probative evidence supporting its claim that disputes over material facts remain;
evidence that is “merely colorable” or “not significantly probative” is insufficient. Anderson, 477
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U.S. at 248-52. If there are no disputed material facts, we review de novo whether the district court
properly applied the substantive law. Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir. 2003).
III.
Tennessee recognizes a narrow exception to the employment-at-will doctrine that provides
a common law cause of action for retaliatory discharge based on an employee’s claim for workers’
compensation benefits. Anderson v. Std. Register Co., 857 S.W.2d 555, 556-59 (Tenn. 1993)
vacated on other grounds by Gossett v. Tractor Supply Co., 320 S.W.3d 777, 785 (Tenn. 2010);
Harney v. Meadow Brook Nursing Center, 784 S.W.2d 921, 922 (Tenn. 1990). The Tennessee
Supreme Court has “emphasized that the exception to the employment-at-will doctrine must be
narrowly applied and not be permitted to consume the general rule.” Stein v. Davidson Hotel Co.,
945 S.W.2d 714, 717 n.3 (Tenn. 1997).
When reviewing a Tennessee law retaliatory discharge claim, we employ a tripartite
framework. See Hale v. ABF Freight Sys. Inc., 503 F. App’x 323, 333 n.7 (6th Cir. 2012). First,
the plaintiff employee bears the burden of establishing a prima facie case by proving: (1) the
plaintiff was employed by the defendant at the time of an alleged injury; (2) the plaintiff sought
workers’ compensation benefits from the defendant;2 (3) the defendant terminated the plaintiff; and
2
Under Tennessee law, a plaintiff need not have actually filed a workers’ compensation
claim to have “sought workers’ compensation benefits.” See Elliott v. Blakeford at Green Hills, No.
M2000-00365-COA-R3-CV, 2000 WL 1817228, at *4 (Tenn. Ct. App. Dec. 13, 2000) (stating that
the court’s declining to define the exact steps necessary to“have sought workers’ compensation
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(4) the plaintiff’s claim for workers’ compensation was a substantial factor in the defendant’s
motivation to terminate the plaintiff’s employment. See Kinsler v. Berkline, LLC, 320 S.W.3d 796,
800 (Tenn. 2010); Anderson, 857 S.W.2d at 558. If the plaintiff establishes a prima facie case, the
burden shifts to the defendant to articulate a legitimate non-retaliatory reason for plaintiff’s
termination. Anderson, 857 S.W.2d at 559.
If the defendant provides a legitimate non-retaliatory reason for termination, the burden shifts
back to the plaintiff to produce “additional compelling evidence of pretext by showing specific,
admissible facts, which realistically challenge the defendant’s stated reasons for its actions.” Thayer
v. Tyson Foods, Inc., 355 F. App’x 886, 889 (6th Cir. 2009) (internal citations and quotation marks
omitted); see also Wilkins v. Eaton Corp., 790 F.2d 515, 521 (6th Cir. 1986). The plaintiff must
overcome the defendant’s proffered non-retaliatory reasons by showing “that the [defendant’s]
reasons have no basis in fact, or if they have a basis in fact, by showing that they were not really
factors motivating the discharge, or, if they were factors, by showing that they were jointly
insufficient to motivate the discharge.” Davis v. Reliance Elec. Indus. Co., 104 S.W.3d 57, 63
(Tenn. Ct. App. 2002) (quoting Moore v. Nashville Elec. Power Bd., 72 S.W.3d 643, 652 (Tenn. Ct.
App. 2001)).
benefits . . . was not an oversight” and that “keeping that requirement flexible protects the employee
from an employer who might be tempted to evade the law by obstructive tactics or by discharging
her before she can take any specific steps.”); accord Whirlpool Corp. v. Pratt, No.
M2007-02534-COA-R3-CV, 2008 WL 4615709, at *4-5 (Tenn. Ct. App. Oct. 17, 2008).
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A.
Because Gillette does not challenge the first three elements of Canady’s prima facie case,
we begin our analysis at the fourth element—whether Canady’s workers’ compensation claim was
a substantial factor in Gillette’s motivation to terminate her employment. For Canady’s workers’
compensation claim to be a “substantial factor” under this final element, it must have been important
or significant but need not be the sole or exclusive reason for Canady’s discharge. Newcomb v.
Kohler Co., 222 S.W.3d 368, 396 (Tenn. Ct. App. 2006). “Proof of discharge without evidence of
a causal relationship between the claim for benefits and the discharge does not present an issue for
the jury.” Anderson, 857 S.W.2d at 558-59.
Canady must show either direct or circumstantial evidence of a causal connection between
her workers’ compensation claim and Gillette’s terminating her. Thomason v. Better-Bilt Aluminum
Prods., Inc., 831 S.W.2d 291, 293 (Tenn. Ct. App. 1992); see also Reed v. Alamo Rent-a-Car, Inc.,
4 S.W.3d 677, 684-85 (Tenn. Ct. App. 1999). “If an employee elects to shoulder this burden with
circumstantial evidence, the employee must present direct and compelling circumstantial evidence.”
Newcomb, 222 S.W.3d at 391 (quoting Caldwell v. Nissan Motor Mfg. Corp., U.S.A., 968 S.W.2d
863, 865 (Tenn. Ct. App.1997)).3 Such evidence may include:
3
The notion of “direct . . . circumstantial evidence” is oxymoronic because circumstantial
evidence is necessarily not direct. The case in which this statement first appeared, Caldwell v.
Nissan Motor Mfg. Corp., U.S.A., 968 S.W.2d 863, 865 (Tenn. Ct. App.1997), supported it by citing
Thomason, 831 S.W.2d at 293. The Thomason court’s phrase, however, was “by direct evidence
(as where the employer has an established policy or where the employer admits the reason for the
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the employer’s knowledge of the compensation claim, the expression of a negative
attitude by the employer toward an employee’s injury, the employer’s failure to
adhere to established company policy, discriminatory treatment when compared to
similarly situated employees, sudden and marked changes in an employee’s
performance evaluations after a workers’ compensation claim, or evidence tending
to show that the stated reason for discharge was false.
Id. Although she acknowledges the significant overlap with the Newcomb criteria, Canady
advocates applying the standard recently articulated in Sykes v. Chattanooga Housing Authority, 343
S.W.3d 18 (Tenn. 2011), where the Tennessee Supreme Court addressed causation in a retaliation
claim under the Tennessee Human Rights Act. The Sykes court stated that
[c]ircumstantial evidence that is pertinent and probative on the issue of causation and
retaliatory intent includes, but is not limited to, (1) temporal proximity of the adverse
action to the complaint; (2) a pattern of workplace antagonism following a
complaint; (3) an employer's failure to adhere to established company policy in
dealing with the employee; (4) discriminatory treatment when compared to similarly
situated employees; (5) evidence of a good work history and high or solid
performance evaluations of the employee; (6) sudden and marked changes in an
employee's performance evaluations after the exercise of the employee's protected
rights; and (7) evidence tending to show that the [employer's] stated reason for
discharge was false.
Id. at 29-30 (internal quotation marks and citations omitted). Temporal proximity does not
necessarily establish that the claim was a substantial factor leading to the employee’s termination.
Conatser v. Clarksville Coca-Cola Bottling Co., 920 S.W.2d 646, 648 (Tenn. 1995); accord Sykes,
343 S.W.3d at 31 (stating that demonstrating temporal proximity does not automatically entitle a
termination[)] or by compelling circumstantial evidence.” Id. (internal citations omitted) (emphasis
added). Thus, the standard is best understood as requiring compelling circumstantial evidence.
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plaintiff to a trial). A plaintiff’s “subjective beliefs or speculation are insufficient to create the
requisite causal relationship.” Reed, 4 S.W.3d at 685.
B.
Because Canady lacks direct evidence, she must present compelling circumstantial evidence
that her workers’ compensation claim was a substantial factor leading to her termination. Even
analyzing Canady’s claim under Sykes, her preferred framework, and drawing all reasonable
inferences in her favor, we hold that Canady has not established a prima facie case of retaliatory
discharge. Canady cannot point to specific, non-speculative evidence in the record sufficient to
establish that her workers’ compensation claim was a substantial factor in Gillette’s decision to
terminate her employment.
1. Temporal Proximity
Canady’s substantial factor argument leans on the temporal proximity between her claim and
her discharge. Canady’s temporal argument, however, falters because the investigation into
Canady’s taking vacation without approval began before Canady’s injury. According to Watkins’s
testimony, during the week before Canady’s injury, he noticed Canady’s unapproved vacation, spoke
with Swafford, and alerted Baskerville that he would be investigating. Canady’s only response is
that Watkins is lying. She supports this claim by pointing to a lack of documentation of the
conversation between Watkins and Swafford to claim that it never happened and by arguing that
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Watkins should have questioned her the day before her injury. Such argument does not rise above
mere speculation. The short, twenty-four-day time frame from Canady’s first unauthorized vacation
day until her termination likewise cuts against her temporal proximity argument. In this case, the
temporal proximity between Canady’s injury and discharge gives rise to little, if any, inference that
Canady’s workers’ compensation claim substantially factored into Gillette’s decision to terminate
her. See Conatser, 920 S.W.2d at 648.
2. Workplace Antagonism
Canady next argues that she suffered workplace antagonism after her injury. To support this
claim, she provides three pieces of evidence: (1) Rinks’s blaming her for her injury; (2) Watkins’s
requesting a drug screen; and (3) Grimes’s appearing angry when the investigation into Canady’s
injury indicated that she was not at fault. This last piece of evidence suffers from two flaws. First,
it is uncorroborated, and second, a supervisor’s apparent irritation does not amount to workplace
antagonism. Similarly, although Watkins testified that he was not “sure” that a drug screen was a
part of Gillette’s post-accident policy, he also testified that he “thought that was the procedure” and
that a drug screen was “typical anytime there’s an injury to ensure you rule that aspect out.”
Watkins’s comporting with what he believed to be company procedure does not indicate workplace
antagonism. Finally, although Rinks—a non-managerial employee who had no input on the decision
to terminate Canady—did initially suggest that Canady caused her own injury, he eventually
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subscribed to the finding that Canady was not at fault. None of these claims of workplace
antagonism provide compelling circumstantial evidence. See Newcomb, 222 S.W.3d at 391.
3. Failure to Adhere to Established Company Policy
Canady claims that Gillette failed to adhere to its own policies in its dealings with her after
her injury. To support this allegation, Canady asserts that Gillette ignored its usual practice of
allowing ODLs to approve emergency vacation time in writing, orally, or through SAP and instead
contrived the need for an emergency vacation form. The record is not completely clear regarding
the avenues for approval of emergency vacation. This uncertainty, however, is irrelevant because
the record unambiguously indicates that Canady did not receive approval, regardless of the channels
through which Canady could have received it. For her half day personal holiday on January 22,
Canady attempts to circumvent this fact by asserting that she alerted a number of other supervisors
of her departure. While true, this point remains unconvincing since Canady did not alert her ODL,
Watkins, as she knew she should have and as required by Gillette’s written policy. Canady’s
allegations that Gillette deviated from company policy fails to generate compelling circumstantial
evidence of causation.
4. Discriminatory Treatment Compared to Similarly Situated Employees
Canady offers the conclusory assertion that “[i]n a nutshell, no other employee of Defendant
was terminated for incorrectly requesting emergency vacation.” Appellant’s Br. at 38. Canady then
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points to two examples of supposedly similarly situated employees who were not punished for rule
violations: (1) an employee in the Cell Make, the other plant at the same Duracell facility, with a
different supervisor who went unpunished after completing an emergency vacation form three weeks
late; and (2) an employee who, five months after Canady’s discharge, violated Gillette’s lock-
out/tag-out (“LOTO”) policy but was not fired even though the stated penalty for a LOTO violation
was immediate discharge. Neither of these examples are apt.
We have held that establishing the substantial factor element of a prima facie case by proving
discriminatory treatment compared to similarly situated employees requires a comparator who “must
have dealt with the same supervisor, have been subject to the same standards, and have engaged in
the same conduct without such differentiating or mitigating circumstances that would distinguish
their conduct or their employer's treatment of them for it.” Ellis v. Buzzi Unicem USA, 293 F. App'x
365, 372 (6th Cir. 2008) (quoting Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992)).
This standard undercuts both of Canady’s examples. The employee who violated the LOTO policy
had not engaged in the same conduct as Canady, and the employee who submitted his form three
weeks late not only had a different supervisor but also worked in an entirely different plant. As
such, this factor fails to establish that Canady’s workers’ compensation claim substantially factored
into her discharge.4
4
Moreover, Canady was assertedly terminated for misrepresentations during the
investigation into her conduct. Canady, however, does not point to any other employees who made
similar misrepresentations but were nonetheless not terminated.
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No. 13-5326
Canady v. Gillette
5. Work History
Canady’s only argument regarding her work history is to emphasize that she maintained an
exemplary record during her thirty-five years at the battery plant. While true, this evidence is not
particularly probative. Further, Canady’s injury history undercuts her claim that she was discharged
for suffering an on-the-job injury or filing a workers’ compensation claim. Both before and after
Gillette purchased the plant where she worked, Canady suffered a number of workplace injuries that
resulted in workers’ compensation claims, including a $10,000 claim for a knee injury (the same
injury on which she based her disability claim in her EEOC charge) in 2006. She was not punished
for any of these claims. Outside of her uncorroborated speculation about Gillette’s having a recent
policy of firing employees who suffered recordable injuries or her injury causing plant management
to lose their bonuses, Canady fails to explain why her February 8 injury and subsequent claim differ
from any of her previous injuries and claims. Canady’s claim history, if anything, militates against
the suggestion that her injury played a substantial role in Gillette’s decision to terminate her
employment.
6. Sudden and Marked Changes in Performance Evaluations
Regarding her performance evaluations, Canady argues that nothing in the record indicates
that she had ever been accused of lying or falsification before she received her Corrective Action
Summary Form on February 10, 2010, two days after her injury. While true, this evidence is not
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Canady v. Gillette
particularly compelling proof that her workers’ compensation claim was a substantial factor in her
discharge.
7. Evidence Tending to Show that Gillette’s Stated Reason for Discharge Was False
Canady struggles to collect evidence that either of Gillette’s stated reasons for her discharge
were false. Although she undoubtedly disagrees with the label of “falsifying documents,” Canady
does not contest that she engaged in the underlying conduct that led to this accusation—coding her
absences as a half day of personal holiday and a full day of emergency vacation time without
receiving approval from Watkins. Thus, while Canady may contest that this reason for her discharge
was not a valid one, she cannot claim that it is false.
Canady likewise struggles to offer evidence that the second stated reason for her
discharge—lying during the investigation—is false. Canady insists that she never claimed that Haun
or Barber approved her vacation time. Yet Canady’s only counter to Grimes’s notes from their
meeting on February 9, which indicate that she had claimed that Haun approved her vacation, is to
allege that Grimes is lying or that Grimes’s notes have been “altered post facto.” Appellant’s Br.
at 40. This claim of fabrication or alteration is speculative and unsupported in the record; it is not
compelling circumstantial evidence indicating that Canady’s workers’ compensation claim
significantly factored into her discharge.
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C.
Canady falls short of presenting the “compelling circumstantial evidence” necessary to
establish a causal connection between her workers’ compensation claim and her termination.
Newcomb, 222 S.W.3d at 391. Canady thus fails to make a prima facie retaliatory discharge case.
Gillette therefore has demonstrated an absence of evidence to support Canady’s case and is entitled
to judgment as a matter of law. Celotex, 477 U.S. at 325.
IV.
Accordingly, for the foregoing reasons, we AFFIRM the district court’s order granting
summary judgment to Gillette on Canady’s retaliatory discharge claim.
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