Adam Bogart v. Univ. of Ky. ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0129n.06
No. 18-5029
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Mar 18, 2019
DEBORAH S. HUNT, Clerk
ADAM BOGART, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
UNIVERSITY OF KENTUCKY, )
)
Defendant-Appellee. )
Before: KEITH, COOK, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Adam Bogart, a former lab technician at the University of
Kentucky, claims that the University violated the Kentucky Whistleblower Act and the Kentucky
Civil Rights Act when it terminated him. According to Bogart, he was fired for telling his
supervisor that statistical data she purchased from an outside company was seriously flawed.
Bogart also alleges the University fired him because he has Tourette syndrome. The district court
granted the University’s motion to dismiss the Whistleblower Act claim after concluding that
Bogart’s complaint to his supervisor was not protected activity under that statute. The district
court then granted summary judgment for the University on the disability discrimination claim
because Bogart failed to make out a prima facie case of discrimination and, alternatively, failed to
create a genuine issue of material fact regarding whether the University’s asserted reason for firing
him—his unsatisfactory performance—was pretextual. Bogart now appeals the district court’s
disposition of both claims. For the following reasons, we AFFIRM.
No. 18-5029, Bogart v. Univ. of Ky.
I.
Bogart suffers from Tourette syndrome “complicated by dystonia and mild cognitive
impairment that is triggered by stress.” His symptoms include slight incoordination, head shaking,
eye blinking, and, occasionally, grunting. Bogart also experiences some symptoms of obsessive-
compulsive disorder and a slightly below-average learning curve. He sees neurologists and
psychiatrists to treat his condition, which is well-managed by medication. Even with medication,
Bogart still shakes his head from left to right in a “no” motion approximately once every minute
or two. Bogart earned a Ph.D. in behavioral neuroscience in 2010 from Kent State University, and
then entered a year-long postdoctoral fellowship in radiology.
In December 2013, Bogart applied for a research position with Dr. Ai-Ling Lin, a
researcher at the University of Kentucky. Originally from Taiwan, Lin received her Ph.D. in
Radiological Sciences from the University of Texas Health Science Center at San Antonio. Her
professional specialties include “risks for Alzheimer’s disease[] and dietary effects on cognitive
aging.” After conducting an interview with Bogart at the University of Kentucky, Lin hired him
as a senior laboratory technician, and he began work in June 2014, subject to a ninety-day
probationary period.
Bogart’s primary assignment was to conduct statistical analysis on a data set that Lin had
purchased from an outside company, Metabolon, Inc. Lin spent $20,000 from a federal research
grant to buy the Metabolon data. The data set contained the results of a study to determine how
caloric restriction affects cognitive aging. Metabolon had performed tests on mouse brains and
then performed preliminary analysis on the resulting data.
Reviewing the Metabolon data, Bogart noticed serious flaws: there were “a number of
very significant outliers that could not be attributed to natural phenomena,” with “data from certain
-2-
No. 18-5029, Bogart v. Univ. of Ky.
mouse brains . . . missing and unaccounted for.” According to Bogart, the flaws1 in the data meant
that he “was never able to produce results to Dr. Lin’s satisfaction.” Bogart spoke with Lin about
his concerns, but she allegedly refused to address the problem.
Around August 1, 2014, Lin called Bogart into her office and asked if he had Parkinson’s
disease—she had noticed that he shakes his head back and forth. Bogart replied that he did not
have Parkinson’s disease but did have lesions on his brain. Lin allegedly “became angry and
questioned why [Bogart] had not told her about the lesion on [his] brain during [his] interview for
the job.” In an email sent later that day, Bogart elaborated on his condition and explained that he
“ha[d] a slower learning curve than is usual for what you expect. But all of a sudden, I completely
‘get’ it—people are always fooled by my true abilities because of this.” By email, Lin thanked
him for explaining his condition and said that her concern was “not the speed of [Bogart’s] learning
curve, but the skills and professionalism [he] should already have after [his] Ph.D. training and so
many years of experiences, e.g., the statistical analysis ability.”
As Lin’s email suggests, there had been “discord” between Lin and Bogart. Bogart says
that, though Lin’s English was “excellent,” “[t]hroughout [his] employment,” she would
repeatedly ask him whether he could understand her English and would “say[] something to the
effect of ‘maybe I’m not getting through to you.’” Lin would also say that Bogart’s “inability to
complete the analysis was because she had ‘set the bar too high’ for [him], and that maybe [he]
was incapable of doing ‘this kind of work.’” Bogart claims that Lin would often become angry
with him and raise her voice. For her part, Lin contends that “Bogart began to exhibit substandard
1
The record suggests the Metabolon data was flawed. Following his termination, Bogart reported
his concerns about the data to the U.S. Department of Health and Human Services’ (DHHS) Office
of Research Integrity, Division of Investigative Oversight. DHHS’s resulting report largely
confirmed Bogart’s concerns with the data.
-3-
No. 18-5029, Bogart v. Univ. of Ky.
performance in late June[] 2014.” Bogart’s alleged deficiencies included forgetting to clock in
and out at appropriate times; working more than forty hours per week after being instructed not to
do so; failing to complete assignments; sleeping in the lab; chatting socially during work hours;
and communicating with sales representatives in a capacity beyond his job description.
Furthermore, on multiple occasions, Bogart mislabeled columns of data that he was analyzing and
mistakenly “swapped numbers” between those columns. Lin says that these were “very serious”
errors.2 Lin also claims that Bogart frequently was rude and insubordinate toward her and spoke
to her in a derogatory manner.
Bogart admits most of these allegations but tries to qualify or downplay his errors. He says
that he never actually “swapped numbers” but only, “on a few occasions,” reversed the headings
on two columns of data, which, he says, were insignificant mistakes “commonly made when
dealing with tremendous quantities of data.” Similarly, Bogart admits he once chatted with an IT
professional, but he claims he did so only while the professional was working on his computer.
He says he “was never aware of any occasion” when he fell asleep in Lin’s lab but was “informed
of one occasion on which others say that [he] fell asleep.”
The University’s account of Bogart’s misconduct was detailed in a written summary of an
oral warning that Bogart received during an August 26 meeting with Lin and two University
administrators. At this point, Bogart was still within his initial probationary period of employment.
And after summarizing Bogart’s inadequate performance and setting out required measures for
improvement, the August 26 warning stated that “[f]ailure to improve and sustain
improvement . . . may result in additional corrective action up to and possibly including
termination of employment.” At the meeting, Bogart tried to explain that the flaws in the
2
Lin mentioned the gravity of these errors in her August 1 email reply to Bogart.
-4-
No. 18-5029, Bogart v. Univ. of Ky.
Metabolon data kept him from completing his assignments, but the administrators allegedly “cut
[him] off,” saying that they “didn’t understand science.” Bogart received a disability
accommodation form during the meeting, but he never requested any accommodations.
Bogart claims that, on September 4, 2014, a University administrator told him that he was
being fired because of “poor performance and some things [the administrator] heard from other
people.” Bogart says he then spoke to Lin, who told him she had “decided to terminate [him] some
time ago.”
For her part, Lin testified that Bogart showed no improvement following his oral warning
and that, between August 26 and September 4, he “ignored specific instructions . . . and failed to
complete tasks. . . . Additionally, Bogart was rude and insubordinate toward me by ignoring me
when I spoke to him and speaking to me in a derogatory manner.” She “met with Bogart and
indicated that, because he had made no progress toward satisfactory job performance since [the]
August 26 meeting, he was being separated from employment with the University.” Disputing
Lin’s story, Bogart says that he did not ignore any instructions, fail to complete tasks, or behave
rudely after the formal warning.
Immediately following his termination, Bogart submitted a complaint to the University’s
Office of Institutional Equity and Equal Opportunity (OIEEO) and alleged “wrongful termination
due to discrimination (Tourette’s Disorder).” OIEEO then sent Bogart a decision letter, stating
that its investigation had concluded that neither his disability nor his concerns regarding the
Metabolon data had anything to do with his termination.
Bogart filed this action in Kentucky state court in June 2016, naming the Board of Trustees
of the University as the defendant and alleging violations of the Kentucky Whistleblower
Protection Act, Ky. Rev. Stat. (KRS) § 61.101, et seq., the Kentucky Civil Rights Act, KRS
-5-
No. 18-5029, Bogart v. Univ. of Ky.
§ 344.040, and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. The Board of
Trustees removed the case to the United States District Court for the Eastern District of Kentucky.
In federal court, the Board moved to dismiss the Whistleblower Act claim because it was not a
proper defendant and because Bogart’s complaint to his supervisor about her own misconduct did
not constitute protected activity under Kentucky law. In response, Bogart amended his complaint
and named the University as the defendant. The University filed a motion to dismiss the
Whistleblower Act claim—again for failure to state a claim—and the district court granted the
University’s motion.
The University then moved for summary judgment on the discrimination claims, asserting
that the ADA claim was barred by state sovereign immunity and the Kentucky discrimination
claim failed because the University fired Bogart because of poor job performance, not his
disability. The district court granted summary judgment to the University. Bogart timely
appealed.3
II.
A. Whistleblower Act Claim
Bogart first argues that the district court erred in dismissing his Whistleblower Act claim.
We review de novo the disposition of a Rule 12(b)(6) motion to dismiss. Jackson v. Prof’l
Radiology Inc., 864 F.3d 463, 467 (6th Cir. 2017). In doing so, we construe the complaint in the
light most favorable to the plaintiff, id., and accept as true all well-pleaded factual allegations,
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “To survive a motion to dismiss, a complaint must
3
Bogart has not appealed the dismissal of his ADA claim.
-6-
No. 18-5029, Bogart v. Univ. of Ky.
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Bogart claims the University violated the Kentucky Whistleblower Act by firing him after
he told Lin about the flaws in the Metabolon data. The Whistleblower Act provides:
No employer shall subject to reprisal . . . any employee who in good faith reports,
discloses, divulges, or otherwise brings to the attention of [specified agencies and
law enforcement] . . . or any other appropriate body or authority, any facts or
information relative to an actual or suspected violation of any law, . . . any facts or
information relative to actual or suspected mismanagement, waste, fraud, abuse of
authority, or a substantial and specific danger to public health or safety.
KRS § 61.102(1). A whistleblower plaintiff must allege four elements: (1) the employer is a state
officer; (2) the plaintiff is a state employee; (3) the employee made or tried to make a good faith
report or disclosure to an appropriate body or authority; and (4) the employer took or threatened
to take action to discourage or punish the employee for making the disclosure or report. Davidson
v. Commonwealth, Dep’t of Military Affairs, 152 S.W.3d 247, 251 (Ky. Ct. App. 2004). The
Kentucky Supreme Court has clarified that complaints to a supervisor regarding the supervisor’s
own misconduct are not disclosures protected by the Whistleblower Act. See Pennyrile Allied
Cmty. Servs., Inc. v. Rogers, 459 S.W.3d 339, 346 (Ky. 2015).
The University, relying on Pennyrile, argued that Bogart failed to allege a protected
disclosure because he merely complained to his supervisor about her own malfeasance. After
allowing Bogart the opportunity to amend his complaint, the district court granted the University’s
second motion to dismiss. The district court relied heavily on Pennyrile and held that Bogart’s
claim fails “because he did not seek to disclose his supervisor’s alleged misconduct—a decision
to rely on data that was somehow fraudulent in conducting and reporting on research—to anyone
other than his supervisor.” Rather, his Whistleblower Act claim was “based solely on comments
-7-
No. 18-5029, Bogart v. Univ. of Ky.
and concerns related to Dr. Lin about her election to rely on certain data in conducting and
reporting on research.”
Bogart argues on appeal that the district court misconstrued the nature of his claim. That
is, Bogart asserts that he was not just complaining about Lin’s misconduct; he was “also
complain[ing] to his boss about the misconduct of a third-party”—i.e., Metabolon. The University
responds that the focus of Bogart’s complaint has always been Lin’s decision to rely on flawed
data and Bogart forfeited his new argument by failing to raise it before the district court. We agree
with the University.
This court has repeatedly “refused to review an argument that was not adequately presented
in the district court.” Bldg. Serv. Local 47 Cleaning Contractors Pension Plan v. Grandview
Raceway, 46 F.3d 1392, 1398 (6th Cir. 1995). Contrary to Bogart’s appellate focus on
Metabolon’s supposed fraud, the claim raised in the district court was, as the district court
observed, “based solely on comments and concerns related to Dr. Lin about her election to rely on
certain data in conducting and reporting on research.” As such, Bogart cannot sidestep Pennyrile.
Bogart’s district court filings confirm the impression that he based his Whistleblower Act
claim on Lin’s use of the flawed research data. To be sure, Bogart’s Amended Complaint states
that he “disclos[ed]” and “divulged” to Lin his “concerns . . . about the quality of the Metabolon
report,” and the complaint describes that report as “potentially fraudulent.” But the Amended
Complaint alleges that Bogart raised the issue because Lin “had the ultimate decision-making
authority as to whether she should include the Metabolon data in her publication.” In other words,
Bogart disclosed the flaws in the Metabolon data to prevent Lin from committing research
misconduct—misconduct for which he also could have been liable.
-8-
No. 18-5029, Bogart v. Univ. of Ky.
The Amended Complaint maintains this emphasis throughout: “[d]espite being aware of
the flawed data, Dr. Lin directed Bogart to utilize i[t] anyway”; “Dr. Lin was so impatient to
publish her paper that she was willing to incorporate inadequately analyzed and potentially
fraudulent data”; “Bogart believed that such publication would be research misconduct”; “[s]ince
Dr. Lin planned to make Bogart first author on the research paper, he feared that if anyone
eventually found out that the statistics . . . were . . . fraudulent, he would be subject to criminal
liability”; Bogart told Lin “that he felt that if the research paper was published and it was incorrect,
he could be in a great deal of trouble.”
Bogart’s Response to the University’s second motion to dismiss similarly directed the
district court’s attention to Lin’s potential research misconduct, not to Metabolon’s. There, Bogart
doubled down on his allegations that he complained to Lin because she “possessed the ultimate
authority as to the research subject and the publication of the paper” and that “[t]hough she was
aware of the flawed data due to Bogart’s disclosure, Dr. Lin directed Bogart to utilize it anyway.”
Bogart also attached an exhibit to his Response—the DHHS report addressing Bogart’s
concerns. The DHHS report characterizes Bogart’s complaint as “an allegation of possible
research misconduct” against Lin. According to the report, Bogart “claimed that Dr. Lin was so
impatient to publish a paper that she was willing to incorporate inadequately analyzed data, which
in Dr. Bogart’s opinion verged on, if not actually reaching, a level of research misconduct.” If the
district court had been under any impression that Bogart’s complaint concerned Metabolon’s
misconduct—rather than Lin’s—the DHHS report would have quickly dispatched that notion.
Nowhere in Bogart’s district court filings is there any suggestion that he was concerned
about Metabolon’s possible violation of the law or that he reported the flawed data so that Lin
could report or remedy Metabolon’s misconduct. Under Pennyrile, Whistleblower Act protection
-9-
No. 18-5029, Bogart v. Univ. of Ky.
does not apply where “the gravamen of the [plaintiff’s] complaint was not intended as a report of
information regarding alleged violations of law.” 459 S.W.3d at 345 (citing Boykins v. Hous. Auth.
of Louisville, 842 S.W.2d 527, 528 (Ky. 1992)). The “gravamen” of Bogart’s alleged disclosure
was a warning that Lin risked research misconduct by relying on inadequately analyzed data. Such
a complaint about Lin’s own conduct does not make Bogart a protected whistleblower under
Pennyrile.
Moreover, a recent decision by the Kentucky Supreme Court, Harper v. University of
Louisville, 559 S.W.3d 796 (Ky. 2018),4 counsels against accepting Bogart’s belated attempt to
recharacterize his complaint. In Harper, the plaintiff discovered that her supervisor planned to
pay an advertising agency $100,000 to develop a commercial for the University. Id. at 805. The
plaintiff “had experience working with national advertising agencies” and knew that this agency
was grossly overestimating the cost. Id. So the plaintiff complained to her supervisor that the
supervisor’s plan to spend that amount “would be wasteful of taxpayer dollars.” Id. Applying the
Pennyrile principle, the Kentucky Supreme Court refused to grant the plaintiff whistleblower
protection because “[r]eporting suspected wasteful spending to the alleged wasteful spender does
not expose any waste” and so does not constitute a protected disclosure. Id. at 806 (explaining
that the plaintiff’s supervisor, “as the manager of the project, was the ‘suspected’ wrongdoer”).
There is an obvious analogy between Bogart’s claim and the one rejected in Harper.
Bogart, like the plaintiff in Harper, knew that a third party had provided his supervisor with a bad
product—or, in Harper, an overpriced product. The plaintiff in each case warned a supervisor that
using the product would constitute misconduct—here, research fraud; in Harper, government
waste. Like the supervisor in Harper, Lin was “the manager of the project,” and her refusal to
4
Harper was decided after oral argument in this case.
-10-
No. 18-5029, Bogart v. Univ. of Ky.
listen to her subordinate’s concern made her “the ‘suspected’ wrongdoer.” Harper’s application
of Pennyrile thus confirms the district court’s conclusion that Bogart’s complaint did not
adequately allege protected activity under the Whistleblower Act.
In sum, the district court did not err in concluding that, under Pennyrile, Bogart failed to
allege protected activity. We need not consider whether Bogart’s newfound focus on Metabolon’s
misconduct could support a Whistleblower Act claim because Bogart did not adequately present
such a claim in the district court. See Grandview Raceway, 46 F.3d at 1398. We, therefore, affirm
the district court’s dismissal.
B. Disability Discrimination Claim
Bogart next challenges the district court’s entry of summary judgment for the University
on his disability discrimination claim. This court reviews a district court’s grant of summary
judgment de novo. Maben v. Thelen, 887 F.3d 252, 258 (6th Cir. 2018). Summary judgment is
proper “if 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). We “view the facts in the light
most favorable to the non-moving party.” Mitchell v. Schlabach, 864 F.3d 416, 418 (6th Cir.
2017).
The Kentucky Civil Rights Act (KCRA) makes it unlawful for an employer to discriminate
against an individual “because the person is a qualified individual with a disability.” KRS
§ 344.040(1)(a). Given the similarities between the ADA and the KCRA’s prohibition of disability
discrimination, Kentucky courts generally apply the KCRA’s prohibition in line with federal ADA
caselaw. See, e.g., Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003) (“The Kentucky
Civil Rights Act was modeled after federal law, and our courts have interpreted the Kentucky Act
consistently therewith.”).
-11-
No. 18-5029, Bogart v. Univ. of Ky.
When, as here, a plaintiff lacks direct evidence of discrimination and relies on indirect
evidence,5 Kentucky courts apply the three-pronged burden-shifting framework articulated by the
U.S. Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Larison v.
Home of the Innocents, 551 S.W.3d 36, 41 (Ky. Ct. App. 2018) (applying the McDonnell Douglas
burden-shifting framework to analyze a KCRA claim).
Under this framework, Bogart must first establish a prima facie case of disability
discrimination by showing: (1) that he had a disability; (2) that he was otherwise qualified to
perform his job, with or without reasonable accommodation; and (3) that he suffered an adverse
employment decision because of his disability. Murray v. E. Ky. Univ., 328 S.W.3d 679, 682 (Ky.
Ct. App. 2009). As for the third element, the Sixth Circuit has held that a plaintiff must show only
but-for causation, and Kentucky courts seem to have adopted this construction. See Lewis v.
Humboldt Acquisition Corp., Inc., 681 F.3d 312, 321 (6th Cir. 2012) (en banc) (abrogating prior
circuit precedent that plaintiff must show discharge was “solely” caused by disability); Hammond
v. Norton Healthcare, Inc., No. 2011–CA–000586–MR, 2012 WL 5039465, at *6 (Ky. Ct. App.
Oct. 19, 2012) (remanding the case for reconsideration in accordance with the but-for standard
required by Lewis).
If Bogart establishes a prima facie case of disability discrimination, “the burden shifts to
the employer to articulate a ‘legitimate nondiscriminatory reason’ for the termination decision.”
Williams v. Wal-Mart Stores, Inc., 184 S.W.3d 492, 497 (Ky. 2005) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). If the University succeeds in offering a
5
Direct evidence of disability discrimination includes any acknowledgment by the defendant that
it relied on the plaintiff’s disability in making the employment decision; indirect evidence of
disability discrimination includes any other evidence from which a jury could infer that the
defendant did so. Ferrari v. Ford Motor Co., 826 F.3d 885, 892 (6th Cir. 2016).
-12-
No. 18-5029, Bogart v. Univ. of Ky.
legitimate reason for firing the plaintiff, the burden shifts back to Bogart to produce “specific
evidence that [the University’s] reasons were a pretext for discrimination.” Brown v. Olameter
Corp., No. 2017-CA-000760-MR, 2018 WL 3699769, at *3 (Ky. Ct. App. Aug. 3, 2018); see id.
(explaining that the plaintiff must “produce specific evidence of pretext to avoid summary
judgment” (quoting Harker v. Fed. Land Bank of Louisville, 679 S.W.2d 226, 230 (Ky. 1984))).
The district court granted summary judgment for two reasons: (1) Bogart failed to satisfy
the third element of his prima facie case of disability discrimination—i.e., he did not produce
evidence from which a jury could reasonably conclude that his disability was the but-for cause of
his termination; and (2) Bogart failed to offer evidence from which a jury could reasonably infer
that the University’s legitimate nondiscriminatory reason for terminating Bogart—his poor
performance—was pretextual. Assuming for purposes of this appeal that Bogart can establish a
prima facie case of disability discrimination, we affirm the district court on the ground that Bogart
has not created a genuine issue of material fact as to whether the University’s nondiscriminatory
reason for firing him was pretext for intentional discrimination.
There is substantial evidence supporting the University’s stated reason for firing Bogart—
his unsatisfactory performance. Plaintiffs often prove pretext by showing that the employer’s
grounds for termination have no basis in fact. See Hostettler v. Coll. of Wooster, 895 F.3d 844,
858 (6th Cir. 2018). But Bogart largely admits the University’s allegations. He does not deny that
he forgot to clock in and out at appropriate times, worked more than forty hours per week after
being instructed not to do so, failed to complete assignments, and was found sleeping in the lab.
Nor does he deny that he received the August 26 oral warning that his poor performance could
result in termination.
-13-
No. 18-5029, Bogart v. Univ. of Ky.
Instead, Bogart tries to downplay his errors, explaining, for example, that while he may
have swapped the headings on data columns—and did so “on a few occasions”—these errors were
“relatively unimportant,” and are “commonly made when dealing with tremendous quantities of
data.” In this way, he seems to argue that his mistakes occurred but were insufficient to justify his
termination. See id. (explaining that a plaintiff can raise an inference of pretext by showing that
the employer’s stated rationale was insufficient to motivate the termination). But showing that
misconduct was insufficient to justify termination generally requires “evidence that other
employees, particularly employees not in the protected class, were not fired even though they
engaged in substantially identical conduct to that which the employer contends motivated its
discharge of the plaintiff.” Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th
Cir. 1994), overruled on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
Bogart has not pointed to any non-disabled employees—or any employees at all—who made
similar mistakes but were treated differently.
Bogart also argues that he satisfied his burden to show pretext because he denies the
University’s contention that he failed to improve following the August 26 oral warning. Lin
testified that between August 26 and Bogart’s September 4 termination, he “ignored specific
instructions,” “failed to complete tasks,” and “was rude and insubordinate.” Bogart denies these
allegations. But Bogart’s mere rejection of Lin’s account does not suffice to show pretext. He
admits, after all, that when the University administrator informed him that he was being fired, the
primary reason given was “poor performance.” And he also admits that, because of the flaws in
the Metabolon data, he “was never able to produce results to Dr. Lin’s satisfaction”—even though
-14-
No. 18-5029, Bogart v. Univ. of Ky.
his ability to analyze the Metabolon data was the primary reason he was hired in the first place.6
In other words, though Bogart purports to challenge Lin’s assertion that he did not improve
following the oral warning, he corroborates rather than refutes the University’s allegation of “poor
performance.”
Bogart’s only evidence suggesting that his disability—rather than his performance—
motivated his termination is his assertion that Lin reacted negatively when he told her he had
lesions on his brain. Cf. Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 431
(6th Cir. 2014) (explaining that a plaintiff may establish pretext by showing that the employer’s
stated reason did not actually motivate the adverse employment action). Lin allegedly “became
angry and questioned why [Bogart] had not told her about the lesion on [his] brain during [his]
interview for the job.” Notably, the only evidence in the record corroborating this incident is the
August 1 email exchange, in which Lin thanked Bogart for explaining his condition and said that
her concern was “not the speed of [Bogart’s] learning curve, but the skills and professionalism
[he] should already have after [his] Ph.D. training and so many years of experiences.” Other than
the conversation Bogart alleges, nothing in the record suggests any connection between Bogart’s
termination and his disability. Bogart repeatedly points to Lin’s yelling and her demeaning
comments, yet he admits that Lin’s behavior occurred “[t]hroughout [his] employment,” not just
after she learned of his disability. A reasonable jury could not, therefore, infer that Lin’s alleged
6
The record does provide reason to believe that the Metabolon data was, in fact, flawed. The
DHHS report stated that Bogart was “absolutely correct that there [were] many problems with the
methods, statistics, and assumptions in the [Metabolon] report.” The report also noted that Lin’s
lack of biostatistics experience likely prevented her from understanding Bogart’s concerns. These
circumstances might explain both Bogart’s failure to produce the results Lin expected and the
parties’ frustration with one another. But the question before us is whether Bogart’s termination
was because of his disability, not whether it was in some other sense “fair.” The record here
reveals no jury-submissible evidence that Bogart’s disability was the cause of his termination.
-15-
No. 18-5029, Bogart v. Univ. of Ky.
harassment manifested animus because of his disability. In fact, the evidence—Lin’s alleged
mistreatment of Bogart before he disclosed his condition, her frustration with his inadequate work
product before that disclosure, and his admitted misconduct after the disclosure—eclipses any
causal connection between the August 1 conversation and Bogart’s September 4 termination.7
In sum, Bogart has not met his burden of providing specific evidence from which a
reasonable jury could conclude that the University’s nondiscriminatory reason for firing him was
a pretext for disability discrimination. See Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir.
2003) (explaining that at the pretext stage a plaintiff bears the “burden of producing sufficient
evidence from which the jury could reasonably reject the defendants’ explanation and infer that
the defendants intentionally discriminated against him” (quotation marks and alterations omitted)).
At most, his August 1 exchange with Lin and his attempts to downplay his misconduct “created
only a weak issue of fact as to whether the employer’s reason was untrue and there was abundant
and uncontroverted independent evidence that no discrimination had occurred.” Reeves, 530 U.S.
at 148 (discussing pretext claim in the context of age discrimination). When this is the case, “an
employer [is] entitled to judgment as a matter of law.” Id. The district court did not err in granting
summary judgment for the University.
***
For the reasons stated above, we AFFIRM the district court’s judgment dismissing Bogart’s
Whistleblower Act claim, and we likewise AFFIRM the district court’s summary judgment for the
University on Bogart’s disability discrimination claim.
7
Bogart himself stated, in a post-termination email, that there was insufficient evidence that his
disability caused his termination: “If Tourette Syndrome played any role in my firing, I have only
minimal evidence of that. . . . [T]hey probably assume I will file harassment charges based on my
disability. I would not—as the evidence of that is too slim.”
-16-