                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0528n.06
                            Filed: August 27, 2008

                                            No. 07-3542

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


                                                  )
DONNA GEMBUS,                                     )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    NORTHERN DISTRICT OF OHIO
METROHEALTH SYSTEM,                               )
                                                  )
       Defendant-Appellee.                        )
                                                  )
                                                  )

Before: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellee MetroHealth Medical

Center (“MetroHealth”) terminated its employee plaintiff-appellant Donna Gembus, who had taken

a leave pursuant to the Family and Medical Leave Act. The district court granted summary judgment

in favor of MetroHealth and Gembus appealed. For the reasons set forth below, we affirm the

district court’s grant of summary judgment in favor of MetroHealth.

                                                  I.

       MetroHealth hired Donna Gembus as a medical assistant in the dialysis department in June

1990. At the time she was hired, Gembus received a MetroHealth Employee Handbook, which

includes attendance standards and family and medical leave policies. The attendance policy states

“[e]mployees are tardy when they are not at their assigned work station at the start of their shift as
defined by the employee’s supervisor.” An employee receives one tardy point each time he or she

is late; tardiness is calculated for twelve months and after twelve months, tardy points disappear.

Within a twelve month period, three tardy points results in a “record of discussion,” five points leads

to a verbal warning, ten points leads to a written warning, fifteen points results in a final written

warning, and twenty points means the employee is subject to termination.

       Gembus transferred, at her request, to a liaison specialist position in 2001. Liaison specialists

answer incoming telephone calls and assist callers with multiple tasks, including setting up

appointments, referring MetroHealth patients and non-patients to clinics, maintaining physicians’

schedules and a reference guide for nurses in the department, and directing pharmacists to the

appropriate physician. The liaison specialist position required Gembus to work rotating shifts,

including working both day and night shifts and working a combination of weekdays and weekends.

       The Line Department, where Gembus worked, had a work schedule that required employees

to log into a telephone sign-in system five minutes before their scheduled shift time and allowed

them to log out ten minutes before the end of the shift, with half of the ten-minute period used to

clean their desks. Gembus was aware of and understood the early sign-in requirement that became

effective in September 2002. Although employees were not compensated for the five-minute period

before their shift started, they were considered late if they did not arrive prior to the five-minute

window.

       Gembus accrued thirteen tardiness points and received a written warning before her 2001

transfer to liaison specialist. In July 2001, Gembus accumulated twenty-three points but instead of

terminating her, MetroHealth gave Gembus a one-day suspension for tardiness and for falsification

of a sign-in sheet. Gembus received additional verbal and written warnings, including a verbal


                                                  2
warning on July 22, 2002, a written warning on September 29, 2002, a final written warning on

November 1, 2002, a final written warning on November 27, 2003, a final written warning on

October 15, 2004, and a final written warning on May 2, 2005.1 MetroHealth personnel discussed

with Gembus her tardiness at three performance appraisals while she was a liaison specialist. She

signed each appraisal, admitting the tardiness problem had been discussed.

       Gembus was diagnosed with fibromyalgia, a chronic condition that causes pain in muscles

and soft tissue surrounding joints, prior to 2001. In early 2005, her symptoms worsened and

Gembus’s physician, Dr. Michael Harrington, referred her to MetroHealth’s Employee Assistance

Program, where it was suggested that she take a leave of absence pursuant to the FMLA. Gembus

was on leave from March 1 to April 1, 2005, for fibromyalgia and chronic fatigue syndrome.

       Dr. Harrington stated in February 2005 that Gembus’s fibromyalgia “requires steady day shift

work without fluctuating shifts in order to manage organization of sleep and circadian rhythms.”

After her return from FMLA leave, Gembus asked to be placed on daytime shifts. MetroHealth

initially denied the request, and her attorney made a request under the Americans With Disabilities

Act, 42 U.S.C. § 12101 et seq. Gembus testified at her deposition that she encountered hostility

when she asked to work only day shifts.




       1
         On August 14, 2002, August 26, 2002, September 25, 2002, September 28, 2002, September
29, 2002, November 1, 2002, March 25, 2003, May 24, 2003, July 3, 2003, September 2, 2003,
September 10, 2003, October 6, 2003, November 17, 2003, November 26, 2003, November 27,
2003, March 16, 2004, March 23, 2004, March 30, 2004, August 7, 2004, September 7, 2004,
September 19, 2004, September 28, 2004, October 15, 2004, November 24, 2004, December 5,
2004, January 1, 2005, May 11, 2005, June 3, 2005, June 8, 2005, and June 10, 2005, Gembus
accrued tardy points for arriving within an unpaid five minute period of time before the scheduled
shift started.

                                                3
        While MetroHealth considered her request and gathered more information, it gave Gembus

daytime shifts. Gembus received seven tardy points in April, May and June 2005, the last of which

raised her accumulated point total to twenty-one. MetroHealth conducted a pre-discharge meeting

with Gembus on June 13, 2005, and terminated her the same day.

        Gembus filed this action. The district court2 granted MetroHealth’s motion for summary

judgment on February 27, 2007. It dismissed the retaliation claim under Ohio Revised Code §

4112.02 because MetroHealth presented evidence of a non-discriminatory reason for terminating

Gembus, tardiness, and Gembus failed to introduce evidence from which an inference could be

drawn that the explanation was pretextual. The district court granted summary judgment on the

Family and Medical Leave Act (“FMLA”) claim based on the same reasoning.

                                                  II.

                                                  A.

        We review a district court’s decision to grant summary judgment de novo. Pagan v. Fruchey,

492 F.3d 766, 770 (6th Cir. 2007) (citation omitted). Summary judgment may be granted only if

there are no genuine issues of material fact and one party is entitled to a judgment as a matter of law.

Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of any

genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To support its

motion, the moving party may show “that there is an absence of evidence to support the nonmoving

party’s case.” Id. at 325.




        2
       The parties consented to the case being heard by United States Magistrate Judge Nancy
Vecchiarelli.

                                                   4
        Once the moving party satisfies its initial burden, the burden shifts to the nonmoving party

to set forth specific facts showing a triable issue of material fact. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986); see also Fed. R. Civ. P. 56(e). “The mere existence

of a scintilla of evidence in support of the plaintiff’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

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In reviewing a district court’s

decision to grant summary judgment, we view all the facts and the inferences drawn therefrom in

the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587.

                                                  B.

        We turn to Gembus’s retaliation claim brought under the FMLA. The FMLA entitles an

eligible employee to up to twelve weeks of leave during a twelve-month period if the employee has

a “serious health condition that makes the employee unable to perform the functions of the position

of such employee.” 29 U.S.C. § 2612(a)(1)(D).

        As no direct evidence of retaliation is present in this case, the court must apply the tripartite

burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). “At the outset, the

plaintiff’s burden is merely to present evidence from which a reasonable jury could conclude that

the plaintiff suffered an adverse employment action under circumstances which give rise to an

inference of unlawful discrimination.” Id. at 570 (citation and internal quotations omitted).

        In order to make out a prima facie case, a plaintiff must show that (1) she engaged in

protected activity, (2) she suffered an adverse employment action, and (3) a causal connection




                                                    5
existed between the adverse employment action and the protected activity. Skrjanc v. Great Lakes

Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001).

        Once the plaintiff makes a prima facie case, the burden shifts to the defendant to introduce

“evidence of a legitimate, non-discriminatory reason for the adverse employment action.” Bryson,

498 F.3d at 570. If the defendant introduces such evidence, “the burden shifts back to the plaintiff

to show that the defendant’s proffered reason is a pretext for unlawful discrimination.” Id.

“Although the burdens of production shift, [t]he ultimate burden of persuading the trier of fact that

the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”

Id. (citation and quotation marks omitted).

        With respect to whether Gembus has made out a prima facie case of retaliation, Gembus

engaged in protected activity when she took a leave pursuant to the FMLA from March 1 to April

1, 2005. She suffered an adverse employment action when she was terminated on June 13, 2005.

She also argues that she has shown a causal connection between her FMLA leave and her

termination. Gembus stated in her deposition that she encountered hostility when she asked to work

only day shifts. She argues that the proximity in time between the accommodations sought, FMLA

leave and the request to work the day shift, and the termination, along with that hostility, is enough

to establish the requisite causal connection. Following the approach taken by the district court, we

assume, without deciding, that Gembus has established a prima facie case of retaliation.

        The burden shifts to MetroHealth to present a “legitimate non-discriminatory” reason for

Gembus’s termination. Bryson, 498 F.3d at 570. MetroHealth met this burden by introducing

evidence that it terminated Gembus for chronic tardiness. MetroHealth discharged Gembus after she

accrued more than twenty tardy points in a twelve-month period.


                                                   6
       The burden remains with Gembus to show that MetroHealth’s reason for her termination –

tardiness in violation of its policy – is a pretext. Id. Gembus may meet this burden by demonstrating

that the proffered reason “1) has no basis in fact; 2) did not actually motivate the adverse action; or

3) was insufficient to motivate the adverse action.” Abbott v. Crown Motor Co., Inc., 348 F.3d 537,

542 (6th Cir. 2003) (citation omitted). In order to meet her burden, Gembus must show both that

MetroHealth’s stated reason for her termination was false and that discrimination was MetroHealth’s

motivation for her discharge. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

       Gembus argues that Metrohealth has not presented a non-retaliatory reason for her

termination because the proffered reason, tardiness, was untrue. Gembus explains that she would

not have accumulated twenty tardy points if the four shifts in May and June 2005 where she arrived

during the five minute unpaid period before her shift began were not counted in this tally. Gembus’s

attempt to show that MetroHealth’s explanation has no basis in fact fails because although Gembus

was required to sign in five minutes before her shift began, she was also allowed to sign out ten

minutes before a shift ended. Moreover, Gembus accrued tardy points during this five minute period

both before and after her FMLA leave. In addition, Gembus did not introduce any relevant evidence

showing that MetroHealth’s explanation for her discharge was pretext. Furthermore, her evidence

of the hostility she encountered when she requested an accommodation to work the day shift does

not address MetroHealth’s reason for her discharge because it does not refute the evidence that

Gembus had twenty-one tardiness points in violation of MetroHealth policy, which allowed for her

termination, or show that tardiness was not the reason for her termination. Gembus has failed to

introduce evidence showing that either MetroHealth’s stated reason for her termination was false or

that retaliation was the actual reason.


                                                  7
       We affirm the grant of summary judgment in favor of MetroHealth on Gembus’s retaliation

claim under the FMLA.



                                                 C.

       We next consider Gembus’s state law retaliation claim. Ohio Revised Code § 4112.02

provides, in relevant part, that it is “unlawful discriminatory practice . . . For any person to

discriminate in any manner against any other person because that person has opposed any unlawful

discriminatory practice defined in this section or because that person has made a charge, testified,

assisted, or participated in any manner in any investigation, proceeding, or hearing under sections

4112.01 to 4112.07 of the Revised Code.” Ohio Rev. Code § 4112.02(I). “[T]o discharge without

just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire,

tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related

to employment” is also forbidden on account of disability. Id. § 4112.02(A).

       To make a prima facie case of retaliation, a plaintiff must show that “(1) she engaged in a

protected activity; (2) her employer knew about the protected activity; (3) her employer took adverse

employment action against the plaintiff; and (4) there was a causal connection between the protected

activity and the adverse employment action.” Hollingsworth v. Time Warner Cable, 812 N.E.2d 976,

987 (Ohio Ct. App. 2004).3 “If the plaintiff establishes a prima facie case, then the burden shifts to

the employer to articulate some legitimate, nondiscriminatory reason for its actions.” Id. (citation

and quotation marks omitted). If the employer meets this burden, the plaintiff then must show that



       3
       This is very similar to the test for retaliation under the FMLA. Id. Despite the similarities,
we analyze the state law claim separately from the federal claim. Id.

                                                  8
the articulated reason was a pretext and not the “true reason for the employment decision.” Id.

(citation and quotation marks omitted).

       Gembus argues she has made out a prima facie case of retaliation because she has satisfied

all of the elements of a prima facie case, including that she has shown a causal connection between

her request to work the day shift and her termination. Gembus claims MetroHealth retaliated against

her because she requested a disability accommodation, to work the day shift.

       Gembus contends she engaged in protected activity under Ohio law when she requested to

work the day shift only as an accommodation for an alleged disability. Ohio law provides that “an

employer must make reasonable accommodation to the disability of an employee or applicant, unless

the employer can demonstrate that such an accommodation would impose an undue hardship on the

conduct of the employer’s business.” Ohio Adm. Code 4112-5-08(E)(1). Ohio law states that

accommodations may include job restructuring, such as modified schedules. Id. 4112-5-08(E)(2).

Whether Gembus actually was disabled is not the query.             “A plaintiff may prevail on a

disability-retaliation claim even if the underlying claim of disability fails.” Bryson v. Regis Corp.,

498 F.3d 561, 577 (6th Cir. 2007) (internal quotation marks and citation omitted).4 Thus, Gembus

argues, and MetroHealth does not dispute, that her request to work the day shift as an

accommodation for her disability is a statutorily protected activity. See id. MetroHealth was aware

Gembus requested to work the day shift only. Gembus therefore suffered an adverse employment

action when she was terminated on June 13, 2005.




       4
        Ohio’s disability discrimination statute is analyzed similarly to the Americans with
Disabilities Act. Kleiber v. Honda of America Mfg, Inc., 485 F.3d 862, 872 (6th Cir. 2007).

                                                  9
        The parties dispute whether Gembus has established a causal connection between her request

to work the day shift and her termination. Gembus offers the following as evidence of the causal

connection: (1) the hostility she encountered when she asked to work only day shifts and (2) the

proximity in time of her request to work the day shift and her termination. Here, as with her federal

retaliation claim, we assume, without deciding, that this is sufficient to establish a prima facie case.

        MetroHealth has the burden to present a “legitimate, nondiscriminatory reason” for Gembus’s

termination. Hollingsworth, 812 N.E.2d at 987. MetroHealth met this burden by introducing

evidence that it terminated Gembus for chronic tardiness because she accumulated twenty-one tardy

points, more than the twenty required for termination under its stated policy.

        The burden shifts to Gembus to show that MetroHealth’s stated reason for her discharge is

pretextual. Id. A plaintiff may demonstrate pretext by showing: (1) that the stated reasons for her

firing had no basis in fact, (2) that the stated reasons for her firing were not the actual reasons, and

(3) that the stated reasons for her firing were insufficient to motivate the discharge. Chandler v.

Dunn Hardware, Inc, 860 N.E.2d 1042, 1048 (Ohio Ct. App. 2006). “To show pretext, the employee

must prove that the employer’s reason is false and that discrimination was the real reason for the

adverse employment action.” Id. at 1045.

        Gembus argues that Metrohealth has not presented a non-discriminatory reason for the

termination because the proffered reason, tardiness, had no basis in fact. Specifically, Gembus

argues she would not have accumulated twenty tardy points at the time of her termination if

Metrohealth did not count the shifts where she arrived before her scheduled shift but after the five-

minute early arrival window commenced. Although she asserts no Fair Labor Standards Act claim,




                                                  10
her argument is essentially that counting the many instances on which she arrived during this

window, including four after her return from FMLA leave, violates the Fair Labor Standards Act.

        Gembus’s argument that the tardiness policy violated law fails. MetroHealth’s policy stated

that employees had to log into a telephone sign-in system five minutes before their scheduled shift

time but allowed them to log out ten minutes before the end of the shift, with half of that time used

to clean their desks. Because Gembus was permitted to recoup the time she was required to work

without compensation at the end of her shift, she was compensated for the full time she worked.

Therefore, MetroHealth’s policy does not violate the Fair Labor Standards Act.

        In addition, Gembus has not introduced evidence that she was terminated for retaliatory

reasons. When the employer offers a “legitimate nondiscriminatory reason” for its action, “the

presumption of intentional discrimination disappears, but the plaintiff can still prove [retaliation] by,

for instance, offering evidence demonstrating that the employer’s explanation is pretextual.”

Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 (2003). Her evidence of temporal proximity alone

is insufficient to meet this burden because it does not address MetroHealth’s explanation for her

termination, tardiness. Furthermore, her evidence of the hostility she encountered when she

requested an accommodation to work the day shift does not address MetroHealth’s reason for her

discharge because it does not rebut the uncontradicted evidence that Gembus accumulated twenty-

one tardiness points in violation of MetroHealth policy, which allowed for her termination. In

addition to failing to prove that MetroHealth’s proffered reason for her termination was false,

Gembus also failed to introduce evidence that the real reason for her discharge was retaliation rather

than tardiness. To the extent Gembus argues that she was retaliated against because she received

tardies during the five-minute uncompensated period after she returned from FMLA leave but not


                                                   11
before her leave, her argument is belied by her tardiness record, which shows that she accumulated

tardy points during the five-minute period both before and after she took FMLA leave.

       We affirm the district court’s grant of summary judgment in favor of MetroHealth on the

retaliation claim under Ohio law.

                                                 D.

       The district court granted summary judgment in favor of MetroHealth on Gembus’s

termination in violation of public policy claim, holding that the claim was precluded because it could

only be brought when there was no civil remedy provided by a statute. It also concluded that state

and federal laws provided sufficient civil remedies. Gembus failed to raise this claim on appeal and

has abandoned it. See, e.g., O’Hara v. Brigano, 499 F.3d 492, 498 (6th Cir. 2007) (“Because O’Hara

fails to contest the district court’s procedural-default rulings as to the foregoing claims, he has

waived any such arguments.”); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir. 1991) (stating

that issues litigated in the district court but not raised on appeal are considered abandoned on appeal

and are not reviewable).

                                                  E.

       The district court granted summary judgment in favor of MetroHealth on Gembus’s claim

for failure to accommodate under Ohio Revised Code § 4112.02. It concluded that Gembus had not

met her burden of showing that she was disabled pursuant to § 4112.02. Gembus has abandoned this

claim by failing to raise it on appeal. See, e.g., O’Hara, 499 F.3d at 498.

                                                 III.

       For the foregoing reasons, we affirm the judgment of the district court.




                                                  12
