Appeals Court OKs Termination a Week After Employee’s Complaint

Takeaway: This decision reminds employers that documentation is key. Well-maintained records provide a snapshot in time and capture the circumstances of a particular decision. “Pretext analysis” is highly fact specific, and the 6th Circuit’s decision suggests that courts are more inclined to accept an employer’s decision when the legitimate, nondiscriminatory reason for the adverse employment action is well documented.

A three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed a summary judgment in favor of an employer, holding that the employer had nonpretextual grounds for terminating the plaintiff — namely attendance, secret recordings, and the defendant’s belief that the plaintiff did not wish to return to work. The 6th Circuit found that the plaintiff’s minimal evidence, when compared to the employer’s documentation, did not satisfy her burden to prove the stated reasons for her termination were a pretext for retaliation.

In November 2021, the plaintiff was hired as the director of social services for a skilled nursing facility in Ohio. During the course of the plaintiff’s four-month tenure with the facility, the defendant identified performance concerns, including tardiness, absenteeism, and the near rejection of a resident’s re-admission in violation of patient anti-dumping laws.  

At the same time, the plaintiff raised concerns about patient care and her manager’s behavior, alleging the manager engaged in sexually inappropriate, sexually harassing, and racially insensitive behavior.  

The plaintiff ultimately scheduled a meeting with HR to share her concerns. During the meeting, the plaintiff divulged that she had been compiling evidence of her manager’s behavior (which the defendant later learned included secret recordings of employee meetings). The plaintiff was terminated a week after disclosing that she had been collecting the screenshots, emails, recordings and documentation as proof of what she believed to be improper behavior.  

The plaintiff sued, alleging retaliation and wrongful termination claims under Title VII of the Civil Rights Act of 1964 and Ohio law.  

The plaintiff established a “prima facie” case of retaliation, but the district court found that three of the defendant’s justifications for the plaintiff’s termination were not pretextual — the plaintiff’s poor attendance, her surreptitious recording of meetings, and her expressed lack of desire to return to work.  

The plaintiff argued that the employer’s stated reasons for her termination had no basis in fact and did not actually motivate the defendant to fire her. But the district court found the plaintiff lacked adequate evidence. On appeal, the 6th Circuit agreed.

First, the court found that the plaintiff secretly recording in the workplace was grounds for termination. Although this action was not unlawful and the defendant had no policy against recording in the workplace, the court determined that “an employer may terminate an employee whose actions undermine the employer’s trust.”  

The defendant also noted that the recordings created a risk of liability associated with the potential exposure of protected health information recorded without patient consent, and an employer “may terminate an employee for creating legal risk for the company.” The 6th Circuit emphasized that the employer’s concerns were supported by the evidence and the plaintiff’s allegations of pretext had no such support.  

Next, the 6th Circuit held that attendance and tardiness are a valid reason for termination. The plaintiff identified a single comparator and argued that her attendance was a pretextual reason for termination because a similarly situated employee was not terminated. However, the plaintiff failed to offer evidence regarding the frequency of the comparator’s tardiness and absences. Without sufficient information, the court could not determine if the comparator’s attendance issues were of comparable seriousness. 

Lastly, the 6th Circuit found that the defendant reasonably believed the plaintiff did not want to return to work, which was a legitimate reason for the plaintiff’s termination. In raising her complaints, the plaintiff conveyed that she was interviewing for other jobs, did not feel comfortable working in the building, and did not want to return to work. It was reasonable for the defendant to assume that the plaintiff wanted to leave. 

The 6th Circuit emphasized that a plaintiff must present clear and sufficient evidence to establish pretext — simply calling the employer’s decision into question is insufficient. When an employer presents substantial evidence in support of its decision, a plaintiff’s inability to present contradictory evidence will likely preclude a finding of pretext. 

Bashaw v. Majestic Care of Whitehall LLC, 6th Cir., No. 2:23-cv-002941 (March 5, 2025).

Niyah Dantzler is an attorney with Duane Morris LLP.