Shari Drerup v. NetJets Aviation, Inc. ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0298n.06
No. 22-3475
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 27, 2023
DEBORAH S. HUNT, Clerk
)
SHARI S. DRERUP,
)
Plaintiff - Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE SOUTHERN
) DISTRICT OF OHIO
NETJETS AVIATION INC., )
Defendant - Appellee. )
OPINION
)
BEFORE: CLAY, McKEAGUE, and STRANCH, Circuit Judges.
CLAY, J., delivered the opinion of the court in which STRANCH, J., joined.
McKEAGUE, J. (pp. 26–29), delivered a separate dissenting opinion.
CLAY, Circuit Judge. Plaintiff Shari S. Drerup brought this action alleging that
Defendant NetJets Aviation Inc. (“NetJets”) terminated her employment based on sex
discrimination in violation of 42 U.S.C. § 2000e et seq. (“Title VII”) and Ohio Rev. Code
§§ 4112.02(A) and 4112.99. The district court granted NetJets’ motion for summary judgment,
and Drerup appeals from that judgment. For the reasons set forth below, we REVERSE the district
court’s judgment and REMAND for trial.
I. BACKGROUND
A. Factual Background
Shari S. Drerup was hired by NetJets in November 2016 to fly a specific aircraft, the
Phenom 300 (“Phenom”). After evaluation and training, NetJets terminated Drerup’s
Case No. 22-3475, Drerup v. NetJets Aviation Inc.
employment, claiming that Drerup was not qualified to fly the plane they had hired her to fly.
Drerup contends that discrimination—not qualification—was the cause of her termination.
In November of 2016, Drerup was hired as a pilot by NetJets, a private aviation company.
Drerup had been a pilot for eleven years, primarily as a contract pilot for individuals and
companies. At the time she applied to NetJets, she worked for a private company flying a Citation
V jet, “three or four times a month.” (Drerup Dep., R. 45-3, Page ID # 216–217). Drerup is
certified to fly (i.e., type-rated1 in) five aircrafts, including two that were in NetJets’ fleet—the
Citation Encore+ and the HS-125 Hawker 800/900. To secure her position with NetJets, Drerup
was required to fly in a Citation EXLS airplane simulator, and she completed the simulation
without issue. NetJets subsequently informed Drerup that she “passed [ ] all phases of the
interview process” and offered her employment to fly the Phenom. (Drerup Dep., R. 45-3, Page
ID # 217–18). Like all pilots hired by NetJets, Drerup was subject to a one-year probationary
period during which unsatisfactory performance could result in termination.
1. Indoctrination Training
At the start of their NetJets employment, pilots attend two weeks of classroom-based
training referred to as indoctrination (“Indoc”) training. Drerup’s Indoc training began on
December 5, 2016, and her class included twelve other pilots, ten men and two women, who were
all hired to fly the Phenom. During Indoc training, pilots are trained to follow NetJets company
policies, safety protocols, and operating principles. The training is generalized and not aircraft
specific.
1
A type rating is a designation on a pilot’s license that serves as proof that the pilot holding
the license can fly that particular model and type of aircraft. “A type rating is required for any
aircraft over 12,500 lbs MGTOW and/or with a turbojet powerplant.” Pilot Certificates, Ratings,
and Endorsements, Fed. Aviation Admin. (May 11, 2023, 5:00 p.m.),
https://www.faasafety.gov/gslac/alc/libview_normal.aspx?id=6577.
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While Drerup was in Indoc training, two NetJets employees expressed concerns regarding
her demeanor to Sean Kennedy, NetJets’ Director of Training. Specifically, Christopher Eastman,
then Assistant Director of Training and Standards for NetJets, reported that his impression of
Drerup was that she was “gruff and unrefined” and that his interactions with her left him with a
“very strong impression” that her demeanor “was not aligned” with his expectations of the level
of service NetJets requires for its pilots. (Eastman Dep., R. 45-6, Page ID # 378, 403). And
Janessa Krause, the Project Manager of Training and Standards for NetJets, described Drerup as
“dismissive and aloof” and “that Drerup’ demeanor was not one she would expect from a NetJets
pilot.” (Krause Dep., R. 45-7, Page ID # 448, 453). Both Krause and Eastman testified that their
impressions of Drerup at the time of her Indoc training did not rise to the level of an issue that
needed to be formally reported. Moreover, Drerup purports that she was never made aware of
these concerns, and she offers evidence that they were not documented until February 28, 2017,
nearly 2 months after Drerup completed Indoc training and one day before she received her
termination letter on March 1, 2017. Regardless, Drerup proceeded to the next phase of the course,
passed the necessary tests, and graduated from Indoc training
2. Fit Test
In preparation for Indoc training, new hires are required to fill out a “fit test form.” (Drerup
Dep, R. 45-3, Page ID # 218). The form requested “[m]easurements of your body in a seated
position, hip to the knee, knee to the toe” and the pilot’s general height. (Id.). The Phenom
uniquely “has a panel that gets in the way of some with longer femurs,” which makes it “unlike
other aircraft[s].” (Eastman Dep., ECF No. 45-6, Page ID # 387). The fit test form is intended to
provide NetJets with the information to determine if pilots can “fit” in the aircraft. (Eastman Dep.,
ECF No. 45-6, Page ID # 387; Kennedy Dep., ECF No. 45-10, Page ID # 583). NetJets uses the
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fit test measurements to determine whether a pilot is too tall for the Phenom and should therefore
be reassigned, not whether the pilot is too short. Although some taller pilots could fly the Phenom
safely by “[finding] a way to make it work,” there were enough complaints about the safety and
comfort of flying Phenom from taller pilots that NetJets developed the “fit test.” (Eastman Dep.,
ECF No. 45-6, Page ID # 387).
After successfully completing her Indoc training, Drerup was assigned to the Phenom fleet.
However, not all of Drerup’s classmates were assigned to the Phenom. NetJets reassigned three
male pilots, Eric Anderson, John Carrier, and Timothy Allan Buss, to the Citation Encore + “based
on [the pilots’] measurements” and their inability “to safely fit within and operate the Phenom.” 2
(NetJets Resp. to Interrogs., R. 52-1, Page ID # 727). Therefore, these three male pilots were never
required to fly or engage in simulator training for the Phenom. Beyond the fit test, no other
reasoning was provided for the their reassignment, and neither party has described how a
reassignment is processed and decided.
3. Flight Simulator Training
After completing Indoc training, ground training, and passing the necessary Federal
Aviation Administration (“FAA”) oral examinations, NetJets pilots are provided flight simulator
training by FlightSafety International Inc. (“FSI”), a vendor NetJets uses to facilitate flight
training. At FSI, FAA-certified flight instructors take the pilots through a series of training
exercises for their aircraft. Pilots typically engage in seven simulator sessions, and each session
covers a specific set of skills or maneuvers that the pilot must be able to perform in order to be
recommended for the FAA-mandated practical test, called a “check ride,” that pilots take after
2
Drerup avers that “[a] fourth pilot requested to be placed in another plane and his request
was granted,” but she does not elaborate nor explain the relevance of this pilot to her claims.
(Drerup Am. Decl., R. 55-1, Page ID # 807).
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completing the simulator training. FSI instructors use a four-point grading scale to evaluate pilots
on each required skill or maneuver during simulation. A “1” indicates proficient; a “2” indicates
normal progress; a “3” indicates needs additional training; and a “4” indicates unsatisfactory. A
pilot must be graded proficient in all maneuvers to be recommended for a check ride. A rating of
“3” means that a pilot is progressing slower than normal and needs additional training before being
recommended to a check ride. Such a rating is unusual and requires a report to the union. Drerup
received twelve ratings of “3” during her simulation training.
Drerup was assigned to Charles Felton as her simulation partner. Felton was an employee
of NetJets and had been type-rated in NetJets’ planes. Drerup and Felton began their simulator
training on February 15, 2017. At the beginning of simulation training, Drerup’s course was
delayed, because Felton and the flight instructor did not get along. Felton asked Leon Lambert,
Phenom Program Manager for FSI, for a different FSI instructor. Lambert then reassigned Felton
and Drerup to Ashley Messenger, another FSI instructor.
As Drerup continued her simulation training on the Phenom and was tasked with
controlling the plane during an engine failure (performing an “engine out maneuver”), “it became
apparent that [she] was struggling to maintain aircraft control with one engine operating on full
power and the other engine failing.” (Drerup Am. Decl., R. 55-1, Page ID # 807). Drerup claims
that she previously never struggled with performance in any of five aircrafts she is type-rated to
fly. With respect to the Phenom, however, Messenger testified that Drerup had difficulty pushing
the aircraft rudder pedal to the floor when one of the engines stopped working—a serious safety
issue because if the rudder is not to the floor, the plane can roll to the side of the nonworking
engine and crash. At one point, Messenger told Drerup that her legs were too short to fully reach
the floor with the rudder pedals to control the airplane during single engine operations.
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Although Messenger does not deny making that remark, he maintains that this was just an “off
handed comment.” (Messenger Dep., R. 45-4, Page ID # 323).
Messenger gave Drerup an unsatisfactory evaluation in connection with her seventh and
final simulation session, on February 22, 2017, concluding that “Shari’s stature precludes attaining
sufficient control authority.” (Messenger Dep. R. 45-4, Page ID # 319 (emphasis added)).
Messenger avers that he meant that Drerup “needed to ensure that she utilized the aircraft’s full
range of seat adjustment.” (Id.). In that final session, Drerup failed to perform proficiently on
three maneuvers and was therefore not recommended for a check ride. Drerup asserts that her
performance issues stemmed from her problems with the engine out maneuver and maintaining
control of the plane, which “affect[ed] every procedure, every maneuver, every approach that [she
did],” and that she was simply too short to complete the engine out maneuver. (Drerup Dep, R.
45-3, Page ID # 226). Drerup is 62 inches tall.
4. Resulting Protocol for Drerup’s Unsuccessful Simulator Training
After the seventh simulation, Drerup states that Messenger contacted Lambert to advise
him that Drerup was too short for the Phenom. (Drerup Am. Decl., R. 55-1, Page ID # 808;
Lambert Dep., R. 45-9, Page ID # 539–41). Lambert advised Messenger that he would sit in a
simulation to observe Drerup’s difficulty in reaching the rudder pedals. (Drerup Dep., R. 45-3,
Page ID # 228). While observing a simulation alongside Messenger and Felton, Lambert asked
Drerup to push her foot all the way to the floor of the cockpit to see if she was able to fully depress
the rudder pedal to the floor. Drerup testified that she demonstrated her inability to do so, even
with seat adjustments. Both Messenger and Lambert maintain that seat positioning, not stature,
was the issue. However, Felton testified that, during the simulation training, he heard Lambert
conclude that Drerup’s stature prohibited her from depressing the rudder pedal fully. (Felton Dep.,
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R. 49-1, Page ID # 648). Lambert then informed the NetJets training department of Drerup’s
difficulty in completing the maneuver, and NetJets authorized more training.
Prior to beginning the additional training simulations, Drerup spoke to Jim Queen, NetJets’
Senior Director of Training, about her inability to fly the Phenom due to her height. Queen told
Drerup to do whatever she needed to do to pass simulations and the check ride, including getting
a pillow to place on her seat or using platform shoes. Drerup made Messenger, Lambert, and
Queen aware of her safety concerns; she explained that her height prevented her from flying the
Phenom safely. Before any additional training, Drerup contacted Queen and requested to switch
planes, and informed Queen that she was type-rated in two other NetJets aircrafts. Queen then
contacted Eastman to inquire about changing Drerup’s plane, but he did not explain the reason for
Drerup’s request. Instead, Queen simply stated that Drerup requested a change in planes because
she “felt that she could not meet the rudder requirements in the Phenom.” (Queen Dep., R. 45-8,
Page ID # 485). Eastman denied Drerup’s request, and Queen informed Drerup that she needed
to “[m]ake this aircraft work.” (Id.). Queen testified that Drerup is “not the only pilot that [NetJets
has] that is of shorter stature,” and that “there are some techniques [to help fly the plane] that can
be done.” (Id., Page ID # 484).3
5. Additional Simulator Training
On February 23 and 26, 2017, Drerup completed additional simulator training focusing on
engine-out maneuvers. Drerup bought thick-soled shoes and pillows to use during these training
3
In its reply brief in support of its motion for summary judgment, NetJets included
evidence that it has two female pilots who are 62–63 inches tall who fly the Phenom. However,
beyond those pilots’ height, the record is silent as to whether they faced similar issues as Drerup,
or whether their leg measurements are similar to Drerup’s.
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sessions. Lambert and Messenger also gave her seat positioning suggestions to accommodate her
short stature.
To ensure her success in the simulation exercise, for the February 23, 2017 simulation,
Messenger warned Drerup when the engine out procedure was going to take place. Because
Drerup was aware of when the engine out was going to take place, she was able to slide down in
the seat, obtain rudder authority, and avoid losing control of the plane. However, even with
advance warning, she did not perform the engine out maneuver successfully every time. After the
February 26, 2017 simulation, FSI certified to NetJets on Drerup’s training record that she was
proficient in all maneuvers, including the one that Drerup claims she could not perform due to her
height, and recommended her for a check ride. Messenger explained that how Drerup reached
proficiency was not his concern and concluded that “after [] seat positioning mitigation, she was
able to perform [the engine out] maneuver to standard . . . repeatabl[y].” (Messenger Dep., R. 45-
4, Page ID # 322). He also admitted that “she was sliding” but claimed “it did not appear it made
her uncomfortable.” (Id.). However, Drerup testified that she should not have been rated
proficient because when she was not forewarned of the maneuver, she only “squeak[ed] out a
maneuver once out of 20 to get a 1” in her final simulation to be approved for her check ride.
(Drerup Dep., R. 45-3, Page ID # 232).
6. Check Ride
After pilots complete simulation training, the FAA mandates that they successfully
complete a check ride before they can begin “initial operating experience” on the aircraft they are
certified to operate. (Queen Dep., R. 45-8, Page ID # 480). During the check ride, a FAA-certified
evaluator or check airman evaluates the pilot trainee in a simulator session on FAA-prescribed
aspects of flying the aircraft. On February 28, 2017, Drerup took the check ride and failed to
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perform an engine out maneuver within the acceptable standard of performance—the same
maneuver that she claims her height prevents her from accomplishing. Unlike Drerup’s additional
simulation training, the maneuver was not announced in advance during the check ride, and she
did not obtain full rudder authority. The FAA stopped the check ride and failed Drerup.
When a pilot performs a maneuver below standard during a check ride, the pilot has the
choice to stop the check ride completely or to continue and complete the remaining maneuvers. If
the pilot chooses to continue, the pilot will only be required to redo any failed maneuvers in a
subsequent check ride, not all of the tested maneuvers. Drerup chose not to continue her check
ride after she failed the engine out maneuver, explaining that she felt she could not succeed due to
her height. Drerup also declined additional training, feeling that it would have been futile because
she was “too short to safely fly this airplane . . . and there’s no amount of training that [she could
get] that makes [her] leg longer.” (Drerup Dep., R 45-3, Page ID # 240).
7. Drerup’s Termination
Sean Kennedy, then Director of Training at NetJets, was responsible for making a
recommendation regarding Drerup’s probationary period and continued employment. Kennedy
recommended that NetJets terminate Drerup. In making that recommendation, Kennedy
considered that: (1) Drerup had failed her check ride and chosen not to continue; (2) she had
declined additional training to help her satisfactorily complete her check ride; (3) there were
concerns regarding Drerup’s demeanor during Indoc training; and (4) Drerup’s flight training
record showed she had been graded as proficient on the engine out maneuver just days before her
check ride.
Drerup’s termination letter, dated March 1, 2017, stated that she was terminated “for failure
to successfully complete [her] probationary period.” (Termination Letter, R. 52-11, Page ID #
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781). Drerup asserts that instead of terminating her employment, NetJets could have reassigned
her to another aircraft as it had done for three male employees, especially since NetJets had
scheduled trainings for two other aircrafts that she was qualified to fly. Kennedy explained that,
from 2016 to 2017, the Phenom was the primary aircraft for which NetJets hired. Reassignments
were done on an as-needed basis, and those too tall for the Phenom were placed in a plane with a
larger cockpit according to the availability of those planes. The record does not provide further
information as to the reassignment process and whether there is a limit to the number of
reassignments for tall pilots, i.e., whether some tall pilots were terminated due to no plane
availability for a reassignment. Prior to NetJets, Drerup had not been terminated by any employer.
At the time of her deposition in this matter, Drerup was a part-time professor of aviation at the
Louisiana State University at Alexandria.
B. Procedural History
Drerup filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”), which subsequently issued a dismissal and notice of rights letter. Drerup
then sued NetJets and Queen, the company’s Senior Director of Training, claiming that NetJets’
refusal to accommodate her request to switch planes and subsequent termination of her
employment was based on sex discrimination. Drerup alleged: (1) sex discrimination in violation
of Title VII, 42 U.S.C. § 2000e–2(a)(1), including a mixed-motive discrimination claim under 42
U.S.C. § 2000e–2(m); (2) sex discrimination under Ohio Rev. Code §§ 4112.02(A) and 4112.99;
and (3) aiding and abetting sex discrimination, in violation of Ohio Rev. Code § 4112.02(J).
Drerup subsequently filed a substantially similar amended complaint. Two months later, Drerup
voluntarily dismissed all claims against Queen, and because he was the only party implicated in
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the violation of Ohio Rev. Code § 4112.02(J), the third cause of action did not proceed beyond the
motion to dismiss stage.4
NetJets and Queen moved to dismiss Drerup’s complaint and amended complaint for
failure to state a claim upon which relief can be granted. NetJets argued that Drerup’s claims of
sex discrimination failed because she had not identified supportable comparators. Specifically,
she:
does not compare herself to men with similar physical characteristics. She does not
allege males of her height were reassigned while she was not, and she does not
allege that males whose circumstances were equal or similar to hers were retained
while she was not.
(Mot. to Dismiss, R. 8, Page ID # 40–41). The district court denied NetJets’ motion, finding that:
(1) arguments as to the original complaint were moot; and (2) Drerup’s amended complaint
plausibly stated a claim for relief for discrimination and adequately “provid[ed] NetJets with fair
notice of the grounds of her sex discrimination claims.” (See Mot. to Dismiss Order, R. 16, Page
ID # 84).
NetJets moved for summary judgment in late 2021, arguing that: (1) Drerup had failed to
furnish evidence that she was treated differently than a similarly situated employee who was not a
member of her protected class, and that the three male pilots were not valid comparators; and
(2) Drerup had failed to show that NetJets’ stated reasons for termination were pretext for
discrimination. NetJets did not mention Drerup’s mixed-motive claim. In its reply brief, NetJets
also attached an affidavit stating that “one female pilot in the Phenom fleet is 62 inches tall, the
same height as Ms. Drerup. Another female pilot in the Phenom fleet is 63 inches.” (Reply,
Eastman Aff., R. 54-1). Because NetJets did not provide this information regarding the other
4
That cause of action is also not on appeal.
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female pilots until its reply, Drerup was unable to probe into issues such as the body proportions
of the female pilots, their performance in flying the Phenom, or whether they were subjected to
the same pressures as she was during training. However, Drerup did not move to reopen discovery,
strike Eastman’s affidavit, or file a sur-reply.
The district court granted the motion, issuing judgment in NetJets’ favor. Applying the
McDonnell Douglas burden-shifting framework, the district court determined that Drerup failed
to establish a prima facie case of sex discrimination. The court reasoned that Drerup failed to
identify similarly situated comparators, and that the three tall men were not similarly situated.
Moreover, the fact that other shorter female pilots could fly the Phenom discredited Drerup’s
claim. The court also found that Drerup failed to cast “substantial doubt” on NetJets’ cumulative
reasons for termination and failed to show NetJets’ reasons for termination were pretextual.
(Summ. J. Order, R. 58, Page ID # 830). And as to Drerup’s mixed-motive claim, despite the fact
that NetJets did not explicitly move for summary judgment on that claim, the court determined
that because Drerup did not address it in her response to NetJets’ summary judgment motion, she
had abandoned that claim. Accordingly, the court granted NetJets summary judgment on both
Drerup’s single and mixed-motive claims. Drerup timely appealed. In her appeal, she challenges
the district court’s orders granting NetJets’ motion for summary judgment and terminating her
mixed-motive claim.
II. DISCUSSION
A. Standard of Review
The Court reviews a district court’s grant of summary judgment de novo. White v. Baxter
Healthcare Corp., 533 F.3d 381, 389 (6th Cir. 2008). A district court should grant summary
judgment only if “the movant shows that there is no genuine dispute as to any material fact and
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the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). No genuine dispute
of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citation omitted). The Court’s “function is not [] to weigh the evidence and determine
the truth of the matter, but to determine whether there is a genuine issue for trial.” White, 533 F.3d
at 390 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). In making that
determination, we “must draw all inferences in the light most favorable to the non-moving party.”
Id. (citing Matsushita, 475 U.S. at 587). “However, ‘the mere existence of a scintilla of evidence
in support of the [non-moving party’s] position will be insufficient [to defeat a motion for summary
judgment]; there must be evidence on which the jury could reasonably find for the’ non-moving
party.” Id. (alteration in original) (quoting Anderson, 477 U.S. at 252).
B. Analysis
1. Single Motive Sex Discrimination Claim
Drerup asserts that NetJets discriminated against her on the basis of sex in violation of Title
VII and Ohio Rev. Code § 4112.02(A) and 4112.99. This Court has recognized that “the elements
and legal standards for establishing unlawful sex discrimination are the same under” the federal
and Ohio state statutes. Laderach v. U-Haul of Nw. Ohio, 207 F.3d 825, 828 (6th Cir. 2000); see
also Noble v. Brinker Int’l, Inc., 391 F.3d 715, 720 (6th Cir. 2004). Accordingly, we evaluate
Drerup’s state and federal claims under Title VII’s framework.
Title VII provides that an employer may not “discriminate against any individual with
respect to [her] compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). A
discrimination claim under Title VII can be proven with either direct or circumstantial evidence.
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Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir. 2010). Direct evidence is evidence
that does not require any inferences to be drawn regarding the employer’s motivations. Id. It is
undisputed that Drerup has not brought forth direct evidence of discrimination. (See Appellant
Br., ECF No. 17, 23). Accordingly, Drerup’s claims are subject to the tripartite burden-shifting
framework first announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), and subsequently clarified in Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981). Under the McDonnell Douglas framework, a plaintiff must first establish a prima
facie case of disparate treatment. McDonnell Douglas, 411 U.S. at 802. If the plaintiff proves the
prima facie case, the burden shifts to the defendant “to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” Id. If the defendant carries that burden,
the plaintiff “must then have an opportunity to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.” Burdine, 450 U.S. at 253; see McDonnell Douglas, 411 U.S. at 804.
i. Drerup’s Prima Facie Case
“The burden of establishing a prima facie case of disparate treatment is not onerous.”
Burdine, 450 U.S. at 253. “To establish a prima facie case of sex discrimination, a plaintiff must
demonstrate that: ‘(1) she is a member of a protected group; (2) she was subjected to an adverse
employment decision; (3) she was qualified for the position; and (4) . . . similarly situated non-
protected employees were treated more favorably.’” Jackson v. VHS Detroit Receiving Hosp.,
Inc., 814 F.3d 769, 776 (6th Cir. 2016) (quoting Peltier v. United States, 388 F.3d 984, 987 (6th
Cir. 2004)).
In this case, NetJets does not dispute that Drerup satisfies the first three elements of the
prima facie case. Therefore, the only question is whether Drerup has established that similarly
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situated, non-protected employees were treated more favorably. NetJets argues that Drerup cannot
satisfy the fourth element because: (1) Drerup’s alleged comparators are not similarly situated, and
(2) Drerup did not identify a similarly situated male who was treated more favorably.
a. Similarly Situated Pilots
Drerup maintains that the three male pilots who were reassigned to other planes are
similarly situated comparators because, just like her, they were hired to fly the Phenom but could
not comfortably and safely fly the plane due to their stature. Those pilots, Drerup contends, were
accommodated in a way that Drerup was not: they were assigned to different planes. The district
court rejected that argument because the male pilots had not passed the “fit test,” or “struggled
during simulator training, failed check rides, declined to continue, and refused additional training.”
(See Summ. J. Order, R. 58, Page ID # 826). However, the district court’s formulation of the
similarly situated standard is overly narrow and unmoored from this Court’s precedent.
Drerup is not required to “demonstrate an exact correlation with the employee receiving
more favorable treatment in order for the two to be considered ‘similarly situated,’” but must
furnish evidence that shows she was similar in “all of the relevant aspects” to the three male pilots
in her class. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)
(quoting Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)). Courts “make
an independent determination as to the relevancy of a particular aspect of the plaintiff’s
employment status and that of the non-protected employee.” Id. Interpreting the similarly-situated
standard to require an exact correlation would prevent a plaintiff with unique characteristics or job
responsibilities from ever being able to “successfully establish a prima facie case (absent direct
evidence of discrimination).” Id. at 353. Under such a narrow reading, this Court has observed,
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“an employer would be free to discriminate against those employees occupying ‘unique’
positions.” Id.
The three male pilots were similar to Drerup in all relevant aspects. They were: (1) hired
to fly the Phenom; (2) in Drerup’s hiring class; (3) subject to the same probation period; (4) subject
to the same “fit test”; and, most importantly, (5) precluded from flying the Phenom because of
their stature. NetJets provided a “fit test” and reassignment for the three men so they could
comfortably fly, but neglected to provide the same accommodation for Drerup, even though
Drerup was type-rated for the same plane to which the three male pilots were reassigned. Thus,
although NetJets accommodated men whose height made flying the Phenom unsafe and
impractical by reassigning them to a more appropriate plane, they did not provide the same
accommodation to Drerup.
NetJets relies on two district court cases to argue that the comparators’ physical
characteristics must be similar for Drerup’s discrimination claim to succeed. See Lutz v. Ohio
Dep’t of Rehab. & Correction, No. 2:10-CV-877, 2011 WL 4964977, at *4 (S.D. Ohio Oct. 19,
2011); Ross v. William Beaumont Hosp., 678 F. Supp. 655, 679 (E.D. Mich. 1988). Neither case
is binding. Even if they were, Lutz and Ross support the conclusion that what matters for
determining whether someone is a similarly situated comparator is that their relevant physical
characteristics are: (1) similar in nature; and (2) similar in their impact on job performance. See
Ross, 678 F. Supp. at 678-79 (finding that the plaintiff, an overweight female doctor whose weight
required her to lean on patients, affecting the “sterility of the operation,” failed to identify similarly
situated doctors in the hospital because she did not identify a “doctor [that] had a malady which
threatened patients at the Hospital”); see Lutz, 2011 WL 4964977, at *3-5 (finding the plaintiff, a
correction officer that had several disabilities that inhibited her ability to perform her job, was not
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
similarly situated to other correction officers with disabilities because she was less qualified for
the position than the correction officer she identified as a comparator and because her disability
was much more severe). In this case, Drerup’s height impacts her ability to safely and comfortably
fly the plane, as was the case for the three tall male pilots. The district court’s narrow definition
of “similarly situated” effectively removed Drerup from the protective reach of antidiscrimination
laws; the three pilots she identifies are proper comparators. See Ercegovich, 154 F.3d at 353.
b. Disparate Treatment
As to whether the similarly situated male pilots were treated more favorably than Drerup,
we turn to Drerup’s assertion of “disparate treatment.” To establish a disparate treatment claim,
Drerup is only required to show that her “employer simply treats some people less favorably than
others because of their race, color, religion, sex, or national origin.” Int’l Bhd. Of Teamsters v.
United States, 431 U.S. 324, 335 n.15 (1977). In “some situations,” the employer’s discriminatory
motive can be inferred from the “mere fact of differences in treatment.” Id. In this case, Drerup
has furnished evidence that, as a woman whose stature prohibited her from flying a plane safely,
she was treated worse than men whose stature prevented them from flying the same plane safely.
Moreover, the lack of seriousness with which Drerup’s supervisors took her concerns raises serious
questions, especially given that failing to perform the engine out maneuver in an emergency
situation could have resulted in disastrous consequences had Drerup been able to pass the check
ride test. Drerup was treated in a noticeably different way compared to the tall male pilots, who
were allowed a reassignment to a new plane early in the training process based on a “fit test”
without requesting the change, and without having to prove their inability to fly the plane.
The district court opined that Drerup failed “to explain why she struggled with flying
because of her height, but other small-stature female pilots are able to fly the Phenom.” (Summ.
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
J. Order, R. 58, Page ID # 826). However, this misses the point. Title VII does not require that
every member of the suspect class face discrimination for a plaintiff to have a viable claim. The
fact that two women with the same height as Drerup may have been able to fly the Phenom is not
enough to invalidate her claims that she was treated differently based on her sex. Further, the fit
test entailed more than a general height measurement: it also requested “[m]easurements of your
body in a seated position, hip to the knee, [and] knee to the toe.” (Drerup Dep, R. 45-3, Page ID
# 218). Even assuming that the two women pilots identified in NetJets’ reply had a stature similar
to Drerup, the record contains no facts beyond their height, and without more, we cannot conclude
that the two women pilots are sufficiently similar to Drerup in relevant respects.
Because Drerup correctly uses the three tall male pilots who were accommodated based on
their stature as comparators for her claim, she has satisfied the similarly-situated requirement and
made out her prima facie case of discrimination.
ii. Nondiscriminatory Reasons for Termination
Once a plaintiff establishes a prima facie case of discrimination, “the burden shifts to the
defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’”
Burdine, 450 U.S. at 253 (quoting McDonnell Douglas, 411 U.S. at 802). In satisfying that burden,
“[t]he defendant need not persuade the court that it was actually motivated by the proffered
reasons.” Id. at 254 (citation omitted). Instead, “[i]t is sufficient if the defendant’s evidence raises
a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the
defendant must clearly set forth, through the introduction of admissible evidence, the reasons for
the plaintiff’s rejection.” Id. at 254-55.
NetJets’ proffered legitimate non-retaliatory reasons for terminating Drerup are that:
(1) Drerup had failed her check ride and chose not to continue the check ride; (2) Drerup declined
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
the opportunity to receive additional training to help her satisfactorily complete her check ride;
(3) there were concerns regarding Drerup’s demeanor during Indoc training; and (4) Drerup’s
flight training record showed she was able to perform all maneuvers “to standard” before the check
ride. NetJets supports its reasoning through sworn affidavits, deposition testimony, personnel
emails, and flight evaluation records. Thus, NetJets’ proffered reasons for its termination decision
are “clear and reasonably specific,” and are supported by “admissible evidence which would allow
the trier of fact rationally to conclude that the employment decision [was] not motivated by
discriminatory animus.’” White, 533 F.3d at 392 (quoting Burdine, 450 U.S. at 257-58).
iii. Pretext
Because NetJets articulated a legitimate nondiscriminatory reason for its termination
decision, we turn to the final part of the McDonnell Douglas analysis: Drerup’s showing of
pretext. Drerup must “prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a pretext for discrimination.” Burdine, 450
U.S. at 253. She can establish pretext “either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Id. at 256. “A plaintiff will usually demonstrate pretext by
showing that the employer’s stated reason for the adverse employment action: (1) has no basis in
fact, (2) was not the actual reason, or (3) is insufficient to explain the employer’s action.” White,
533 F.3d at 393 (citing Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 545 (6th Cir. 2008)).
“This burden is not heavy, [ ] as summary judgment is warranted only if no reasonable juror could
conclude that the employer’s offered reason was pretextual,” George v. Youngstown St. Univ., 966
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
F.3d 446, 462 (6th Cir. 2020), after drawing “all justifiable inferences” in the nonmoving party’s
favor, Anderson, 477 U.S. at 255.5
a. Drerup’s Training and Evaluation
Three of NetJets’ proffered reasons for terminating Drerup are her: (1) failed check ride;
(2) refusal to continue the check ride or receive additional training; and (3) flight training record.
NetJets argues that it had an honest belief that Drerup was able to perform all required maneuvers
in the Phenom, that its expectation for her to do so was reasonable, and that her objection to
continuing training and the check ride was unwarranted.
The “honest belief” rule provides that “[w]hen an employer reasonably and honestly relies
on particularized facts in making an employment decision, it is entitled to summary judgment on
pretext even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless.” Babb v.
Maryville Anesthesiologists P.C., 942 F.3d 308, 322 (6th Cir. 2019) (alteration in original)
(quoting Chen v. Dow Chem. Co., 580 F.3d 394, 401 (2009)). But the “honest belief” rule is not
without limits. “[A]n employee can still overcome the ‘honest belief rule’ by pointing to evidence
that ‘the employer failed to make a reasonably informed and considered decision before taking its
5
Because Drerup’s job requires a high degree of skill, the district court placed a higher
burden on Drerup to show that NetJets’ termination reasons were pretextual, relying exclusively
on Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 54 (8th Cir. 1977) (an “employer bears a [ ] lighter
burden to show that his employment criteria are job-related” when the job requires a high degree
of skill). (See Summ. J. Order, R. 58, Page ID # 828–29). However, Boyd found that a height
requirement for pilots was not sex discrimination because it ensured the safety of the pilot. “Ample
evidence in the record” showed that “an individual’s ability to operate all the instruments in the
cockpit and reach the design eye reference point is dependent upon an individual’s height and is
essential to the safe and efficient operation of a plane.” Id. at 54. Drerup concedes that her stature
inhibited her ability to fly the Phenom safely, but any similarity with Boyd ends there. In Boyd,
the employer had no plane that could accommodate a shorter height. Id. at 52-53. By contrast,
NetJets had planes that Drerup says she could fly, one of which three men were reassigned to.
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
adverse employment action.’” Id. (quoting Smith v. Chrysler Corp., 155 F.3d 799, 807-08 (6th
Cir. 1998)).
NetJets was aware of Drerup’s struggles during simulation training but argues that after
she successfully completed her final simulation sessions, there was “no reason to believe Drerup
was unable to proficiently perform any maneuver required of her in the Phenom.” (Appellee Br.,
ECF No. 19 –20). Furthermore, NetJets learned Drerup not only failed her check ride but also
refused to continue any further additional training that was offered to her, and this resistance
provided NetJets grounds for termination. NetJets avers that it was unaware of any reason that
Drerup would decline further training after the failed check ride. Poor job performance and refusal
to continue training are indeed legitimate, non-discriminatory reasons for an employee’s
termination. See Imwalle, 515 F.3d at 546.
But NetJets’ arguments are inconsistent with the record. First, during Drerup’s seventh
and final simulation session, on February 22, 2017, Messenger gave Drerup an unsatisfactory
evaluation on her FSI evaluation, concluding that “Shari’s stature precludes attaining sufficient
control authority.” (Messenger Dep. R. 45-4, Page ID #319). Messenger contacted Lambert to
advise him that Drerup was too short for the Phenom and Lambert advised Messenger that he
would sit in a simulation to observe Drerup’s difficulty in reaching the rudder pedals. Both
Lambert and Messenger then observed Drerup’s difficulty in obtaining rudder control. Lambert
then informed the NetJets training department of Drerup’s issues completing the maneuver, and
NetJets authorized more training. Drerup subsequently made Queen aware of her inability to fly
the Phenom due to her short stature by directly telling him; Queen then provided advice as to how
to overcome her short stature, such as by using a pillow and platformed shoes. Moreover, Eastman
testified that a pilot must be graded proficient in all maneuvers to be recommended for a check
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
ride, and that a rating of “3” is unusual and requires a report to the union. Drerup received twelve
ratings of “3” during her simulation training, which would have been reported to the union and
brought to NetJets’ attention. The record simply does not support an assertion that NetJets was
unaware of any issues that may prevent Drerup from passing her check ride. At a minimum,
Drerup has provided enough evidence for a reasonable juror to conclude that NetJets’ purported
ignorance of her performance was pretextual. See Youngstown, 966 F.3d at 462.
NetJets’ argument that Drerup’s refusal to continue training constituted grounds for
termination is equally unavailing. Drerup has provided evidence that continuing training would
have been futile; no amount of training would add inches to her legs. Drerup made this concern
known to Lambert, Queen, and Messenger. And if Drerup had manipulated her stature enough to
pass the check ride, that would raise larger concerns. A reasonable juror could easily conclude
that Drerup’s refusal to continue to fly a plane that she was incapable of flying due to her stature
was the only responsible decision she could make. Instead, Drerup’s concerns were disregarded,
whereas her male comparators were reassigned to a new plane after the fit test without having to
demonstrate discomfort while flying the Phenom. Drerup has provided enough evidence that a
reasonable juror could conclude that NetJets’ insistence on additional training and the continuation
of the check test was unreasonable and pretextual. Matsushita, 475 U.S. at 587.
b. Drerup’s Demeanor
During Indoc training, two NetJets employees expressed concerns about Drerup’s
demeanor to Kennedy, the Director of Training. The comments were not officially reported during
or immediately after Indoc training, and they did not prevent Drerup from proceeding to the next
phase of the course; she passed the necessary tests and graduated from Indoc training. Rather, the
concerns were purportedly documented on February 28, 2017, the same day Kennedy
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
recommended that Drerup be terminated and the day before Drerup received her termination letter.
A reasonable juror could infer that if NetJets honestly believed the alleged attitude problems to be
true or a terminable offense, it would have addressed the issue earlier, not two months after the
completion of the training course, where significant resources had been expended. A reasonable
juror could find that the emails were simply NetJets’ attempt to justify Drerup’s discriminatory
termination.
c. Shifting Explanation
Drerup argues that that NeJets’ reasons for terminating her employment have changed over
time. “An employer’s changing rationale for making an adverse employment decision can be
evidence of pretext.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996),
amended on other grounds, 97 F.3d 833 (6th Cir. 1996). On this front, Drerup’s argument is
unavailing. At the time of Drerup’s termination, NetJets provided that she was terminated based
on the “failure to successfully complete [her] probationary period.” (Termination Letter, R. 52-
11, Page ID # 781). As described on appeal, NetJets’ reasons for termination are more detailed
than as described in Drerup’s termination letter, but they have remained consistent, and Drerup
has failed to identify any material changes. NetJets’ explanation may well be pretextual, but it is
not “shifting.”
Thus, because Drerup correctly identifies as comparators the three male pilots who were
accommodated based on their stature, Drerup satisfies the similarly-situated requirement and has
established a prima facie discrimination case. Further, Drerup has furnished enough evidence to
establish a genuine dispute of material fact with regard to whether NetJets’ offered reasons for her
termination were pretextual. Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 572 (6th Cir.
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
2003) (“[T]he widely differing perspectives on whether . . . a discriminatory motivation [exists]
provide a classic example of a genuine issue of material fact.”). Summary judgment was improper.
2. Mixed Motive Sex Discrimination Claim
The district court held that Drerup abandoned her mixed motive claim because she did not
address it in her opposition to summary judgment. As a reminder, Drerup’s amended complaint
alleges that “NetJets discriminated against Plaintiff because of her sex in violation of 42 U.S.C.
§ 2000e-2(a)(1) and/or sex was a motivating factor in Defendant NetJets’ decision to terminate
Plaintiff’s employment in violation of 42 U.S.C. § 2000e-2(m).” (Am. Compl., R. 7, Page ID #
33).
The mixed motive framework applies in cases “where an adverse employment decision
was the product of a mixture of legitimate and illegitimate motives.” Wexler, 317 F.3d at 571(citation omitted). Drerup can proceed on a mixed motive claim by demonstrating that her sex
was a motivating factor in her termination, even though other factors also motivated her discharge.
See Wright v. Murray Guard, Inc., 455 F.3d 702, 711-13 (6th Cir.2006). “[T]he ultimate question
at summary judgment on a mixed motive case is ‘whether the plaintiff has presented evidence,
direct or circumstantial, from which a reasonable jury could logically infer that [a protected
characteristic] was a motivating factor in [the defendant’s adverse employment action against the
plaintiff].”6 Id. at 713 (alterations in original) (quoting Harris v. Giant Eagle, Inc., 133 F. App’x
288, 297 (6th Cir. 2005)).
6
A different burden-shifting framework applies to mixed-motive claims, where “[o]nce
the plaintiff has shown that the unfavorable employment decision was made at least in part on a
discriminatory basis, the burden shifts to the employer to prove by a preponderance of the evidence
that it would have taken the same adverse action even if impermissible factors had not entered into
its decision.” Wexler, 317 F.3d at 571.
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
A mixed-motive analysis is triggered only if a plaintiff gives notice of such a claim. The
record cannot be “utterly silent as to mixed motives.” Spees v. James Marine, Inc., 617 F.3d 380,
390 (6th Cir. 2010) (quoting Hashem-Younes v. Danou Enters. Inc., 311 F. App’x 777, 779 (6th
Cir. 2009)). Here, the record was not silent: Drerup included her mixed motive claim in her
complaint. Nor is she required to respond to the absence of an argument against her claim to
maintain her cause of action. “[A] district court cannot grant summary judgment in favor of a
movant simply because the adverse party has not responded.” Carver v. Bunch, 946 F.2d 451, 455
(6th Cir. 1991). Rather, the moving party “always bears the burden of demonstrating the absence
of a genuine issue as to a material fact,” and the district court is required “to examine the movant’s
motion for summary judgment to ensure that he has discharged that burden.” Id. at 454-55; see
Fed. R. Civ. P. 56(a). Drawing “all inferences in the light most favorable to the non-moving party,”
and given that NetJets’ motion for summary judgment made no argument as to Drerup’s mixed
motive claim, we find that the claim remains. See Matsushita, 475 U.S. at 587. The district court
erroneously expected Drerup to oppose an argument that NetJets never made.
III. CONCLUSION
For the reasons set forth above, we REVERSE the district court’s judgment as to both the
single and mixed motive claims, and REMAND for trial.
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
McKEAGUE, Circuit Judge, dissenting. I respectfully dissent. Assuming, arguendo,
that Drerup established a prima facie case, judgment for NetJets was still proper as Drerup failed
to offer evidence such that a reasonable juror could reject NetJets’ proffered reasons for firing her.
See Goldblum v. Univ. of Cincinnati, 62 F.4th 244, 251–52 (6th Cir. 2023) (proceeding to the
pretext analysis without determining whether the plaintiff established a prima facie case).
NetJets provided four reasons for Drerup’s termination: “(1) she failed her check ride and
chose not to continue; (2) she declined the opportunity for additional training designed to help her
pass the check ride; (3) NetJets employees raised concerns regarding Drerup’s demeanor during
initial classroom training; and (4) her flight training record demonstrated she struggled
significantly during flight simulator training.” Appellee’s Br. at 2. Drerup does not dispute that
these are legitimate, nondiscriminatory reasons for terminating a person’s employment. See
Imwalle v. Reliance Med. Prods., 515 F.3d 531, 546 (6th Cir. 2008) (“Poor performance is a
legitimate, nondiscriminatory reason for terminating a person’s employment and, by articulating
such a reason, [a defendant meets] its initial burden under the McDonnell Douglas/Burdine
framework.”); Appellant’s Br. at 30. Thus, the burden is on Drerup to prove by a preponderance
of the evidence that the “reasons offered by the defendant were not its true reasons, but were a
pretext for discrimination.” Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)).
To establish that NetJets’ reliance on her failures during training and the check ride was
pretext, Drerup repeatedly claims that that she is unable to fly the Phenom due to her stature, see,
e.g., Appellant’s Br. at 38 (“There is nothing honest in NetJets alleged belief that Appellant was
capable of operating the Phenom.”), implying that NetJets’ concerns lack a factual basis or were
insufficient to motivate Drerup’s termination. But when an employer has an honest belief in their
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
proffered reason for taking adverse employment action, and such belief arises “from reasonable
reliance on the particularized facts before the employer when it made the decision, the asserted
reason will not be deemed pretextual even if it was erroneous.” Upshaw v. Ford Motor Co., 576
F.3d 576, 586 (6th Cir. 2009) (citing Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 559 (6th
Cir. 2009)); see also Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012).
Accordingly, what NetJets knew when it fired Drerup is crucial.
NetJets knew that Drerup struggled with the engine out maneuver, and failed her February
22, 2017, simulation session. But, after that failed simulation:
• Jim Queen, NetJets’ Senior Director of Training, called Drerup to discuss
techniques that could help her satisfy the rudder requirements, including wearing
shoes with a larger sole, using a pillow in her seat, and a technique that involved
the placement of her feet at the time the engine goes out.
• Following that conversation with Queen, Drerup purchased new shoes and
procured pillows.
• Drerup received two extra training sessions to focus on passing the engine out
maneuver. At both sessions she received passing scores and completed the engine
out maneuver. Leon Lambert, another pilot brought in to fly with Drerup during
the additional sessions, helped Drerup find seat positions that, according to
Messenger and Leon, contributed to Drerup’s success in completing the engine out
maneuver.
• After successfully completing those additional sessions, Drerup was recommended
for her check ride.
• At her check ride, Drerup failed the engine out maneuver.
• After failing the engine out maneuver, Drerup declined to continue the test in
attempt to pass the other maneuvers.
• Drerup declined NetJets’ offer for additional training.
Thus, although NetJets was aware that Drerup initially had difficulty completing the engine out
maneuver, NetJets intervened to provide extra assistance to Drerup so that she could successfully
complete the engine out maneuver. At the time NetJets terminated Drerup’s employment, it had
received a report that Drerup successfully completed the engine out maneuver in her extra
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
simulations, yet she failed to complete the maneuver on test day and subsequently declined to
continue the test or complete additional training. Thus, NetJets’ belief that Drerup was capable of
flying the Phenom and passing her check ride will not be deemed pretextual even if it was
erroneous. See Upshaw, 576 F.3d at 586.
NetJets also contends that it was motivated to terminate Drerup’s employment in part due
to concerns about her demeanor. In support of this justification, NetJets relies on Drerup’s refusal
to complete additional training or continue with her check ride. NetJets also references reports by
two employees who recalled negative interactions with Drerup during her initial training. At
NetJets’ request, these employees documented their negative experiences the day before NetJets
fired Drerup. According to Drerup and the majority, the timing of the allegations could lead a
reasonable juror to find that the allegations were “fabricated and elicited to paper the file.”
Appellant’s Br. at 21; Maj. Opn. at 22. But even when a plaintiff believes timing is suspicious,
“the law in this circuit is clear that temporal proximity cannot be the sole basis for finding pretext.”
Seeger, 681 F.3d at 285 (quoting Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012)); see
also Goldblum, 62 F.4th at 256. Since Drerup fails to provide additional evidence of pretext, the
timing of these reports about Drerup’s attitude “cannot alone prove pretext.” Goldblum, 62 F.4th
at 256 (citation omitted); cf. Smith v. Chrysler Corp., 155 F.3d 799, 809 (6th Cir. 1998) (“The
doubt raised over Chrysler’s second alternative justification for firing Smith does not translate into
an inference that the true motivation behind Smith’s discharge was his disability.”).
Because Drerup has not rebutted that her refusal to continue with the check ride or to accept
further training, in combination with perceived attitudinal issues, led to her termination, she has
not met her burden of establishing pretext. See Conley v. City of Findlay, 266 F. App’x 400, 406
(6th Cir. 2008) (“But none of these complaints, if assumed to be true, demonstrate that the City’s
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Case No. 22-3475, Drerup v. NetJets Aviation Inc.
reason for terminating Conley lacked a factual basis, failed to motivate its decision to terminate
her, or were insufficient to motivate her discharge.”); Burks v. Yellow Transp., Inc., 258 F. App’x
867, 875 (6th Cir. 2008) (“As in Wright [v. Murray Guard, Inc., 455 F.3d 702, 709 (6th Cir. 2006)],
Burks “has offered no evidence to indicate that [the defendant] made its decision on grounds other
than those offered.”). Thus, summary judgment for NetJets was proper.
The majority further concludes that the district court erred in finding Drerup’s mixed
motive claim abandoned. Maj. Opn. 23–25. But because there is no evidence that NetJets did not
honestly believe its proffered reasons for firing Drerup or that NetJets relied on unlawful motives
when it fired her, I would find any error in failing to reach the mixed motive claim harmless. See
Wright v. Murray Guard, Inc., 455 F.3d 702, 714 (6th Cir. 2006); Williams v. Zurz, 503 F. App’x
367, 376 (6th Cir. 2012).
For these reasons, I respectfully dissent and would affirm.
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