{"attribution":{"source":"legal.exploreworldai.com","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=us:130-f-4th-542","cite_as":"NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=us:130-f-4th-542)","license":"https://legal.exploreworldai.com/revision","version":"legal-2026-10-28","fingerprint":"ewai:us:4b7993","proof":"sha256:1096f786e53fa2adebb3c82336239609465c84b3168d6dfab8653e4358af522f","jurisdiction":"us","lang":"en","publisher":"NovaCopilot by ExploreWorld Legal","terms":"https://legal.exploreworldai.com/om"},"brand_source":"Source: NovaCopilot","item":{"schema_version":"1.0.0","id":"us:130-f-4th-542","jurisdiction":"us","lang":"en","brand_source":"Source: NovaCopilot","brand":{"product":"NovaCopilot","platform":"ExploreWorldAI","infrastructure":"ExploreWorld Legal","infrastructure_url":"legal.exploreworldai.com","legal_entity":"Valkiv Ventures AB","permanent_url":"https://legal.exploreworldai.com/novacopilot","source":"Source: NovaCopilot","powered_by":"Powered by NovaCopilot","license":"https://legal.exploreworldai.com/licensvillkor"},"sections":[{"title":"RECOMMENDED FOR PUBLICATION","paragraphs":[]},{"title":"Pursuant to Sixth Circuit I.O.P. 32.1(b)","paragraphs":[]},{"title":"File Name: 25a0047p.06","paragraphs":[]},{"title":"UNITED STATES COURT OF APPEALS","paragraphs":[]},{"title":"FOR THE SIXTH CIRCUIT","paragraphs":["para_6","para_7","para_8","para_9","para_10","para_11","para_12","para_13","para_14","para_15","para_16","para_17","para_18","para_19"]},{"title":"No. 24-3292","paragraphs":["para_21","para_22"]},{"title":"Argued: December 12, 2024","paragraphs":[]},{"title":"Decided and Filed: March 5, 2025","paragraphs":["para_25","para_26"]},{"title":"COUNSEL","paragraphs":["para_28","para_29"]},{"title":"Dyer, Greg R. Mansell, Rhiannon M. Herbert, MANSELL LAW LLC, Columbus, Ohio, for","paragraphs":["para_31","para_32","para_33"]},{"title":"OPINION","paragraphs":["para_35"]},{"title":"LARSEN, Circuit Judge. Kirstyn Paige Bashaw was fired by her employer, Majestic","paragraphs":[]},{"title":"Care of Whitehall. Bashaw then sued Majestic Care under Title VII and Ohio law, claiming","paragraphs":["para_38","para_39","para_40"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 2","paragraphs":["para_42"]},{"title":"Majestic Care operates a skilled nursing home and residential facility in Ohio. Bashaw","paragraphs":["para_44","para_45","para_46","para_47"]},{"title":"PageID 244–46. Bashaw’s role also included attending daily morning and end-of-day director","paragraphs":["para_49","para_50","para_51","para_52","para_53","para_54","para_55","para_56","para_57","para_58","para_59","para_60"]},{"title":"Soon after, Resident A’s leg was amputated because of a severe infection. Bashaw raised","paragraphs":["para_62","para_63","para_64"]},{"title":"Bashaw’s concerns went beyond patient care, however. She viewed Beatrice as racially","paragraphs":["para_66","para_67","para_68","para_69"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 3","paragraphs":["para_71","para_72","para_73","para_74","para_75","para_76","para_77","para_78","para_79","para_80","para_81"]},{"title":"Majestic Care would not readmit Resident B. Whatever Bashaw might have said, Mt. Carmel","paragraphs":["para_83","para_84","para_85","para_86","para_87","para_88"]},{"title":"The phone call with Mt. Carmel prompted Beatrice to email the department heads the","paragraphs":["para_90","para_91","para_92"]},{"title":"On Tuesday, March 1, the situation deteriorated further. Bashaw met with Majestic","paragraphs":[]},{"title":"Care’s local Human Resources Representative, Chandler Kuhn, to raise her concerns about","paragraphs":["para_95","para_96","para_97","para_98","para_99"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 4","paragraphs":["para_101","para_102","para_103","para_104","para_105","para_106","para_107","para_108","para_109","para_110","para_111","para_112"]},{"title":"Kuhn’s notes also reveal that Bashaw told him several other things pertinent to this","paragraphs":["para_114","para_115","para_116","para_117","para_118","para_119","para_120","para_121","para_122","para_123","para_124"]},{"title":"Rather than join the group, Kuhn immediately reported the information to Beatrice and","paragraphs":["para_126"]},{"title":"Bashaw’s allegations against Beatrice. Meanwhile, after her meeting with Kuhn, Bashaw left","paragraphs":["para_128"]},{"title":"Bashaw that afternoon, highlighting her attendance issues. Because Bashaw had already left","paragraphs":[]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 5","paragraphs":["para_131","para_132","para_133"]},{"title":"The next day everything fell apart. During the morning meeting, Bashaw, while","paragraphs":["para_135","para_136","para_137","para_138","para_139","para_140","para_141"]},{"title":"Bashaw kept pushing back on Beatrice’s decision, he asked her what she would like to do","paragraphs":["para_143","para_144","para_145","para_146","para_147","para_148","para_149","para_150","para_151","para_152","para_153","para_154"]},{"title":"One week later, Nieset terminated Bashaw’s employment and concluded that her allegations","paragraphs":["para_156"]},{"title":"Bashaw then sued, claiming that she was fired because she had expressed concern about","paragraphs":["para_158","para_159"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 6","paragraphs":[]},{"title":"She later added Title VII and Ohio Revised Code § 4112 retaliation claims.2 Majestic Care","paragraphs":["para_162"]},{"title":"The court reasoned that summary judgment was appropriate because Majestic Care had offered","paragraphs":["para_164","para_165","para_166","para_167","para_168","para_169","para_170","para_171","para_172","para_173"]},{"title":"Assocs. #33, L.P. v. Louisville/Jefferson Cnty. Metro Hum. Rels. Comm’n, 508 F.3d 366, 371","paragraphs":[]},{"title":"(6th Cir. 2007). Having done so, the burden returns to Bashaw to show that these proffered","paragraphs":["para_176","para_177"]},{"title":"The district court assumed that Bashaw had established a prima facie case and resolved","paragraphs":["para_179","para_180","para_181","para_182"]},{"title":"Bashaw “can show pretext in three interrelated ways: (1) [showing] that the proffered","paragraphs":["para_184","para_185","para_186","para_187","para_188","para_189"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 7","paragraphs":["para_191","para_192","para_193","para_194"]},{"title":"Even if courts find some reasons pretextual, if “at least one other is not, the defendant","paragraphs":["para_196","para_197"]},{"title":"(“[A]n employee must demonstrate that the employer’s reasons (each of them, if the reasons","paragraphs":["para_199"]},{"title":"Cleland, 813 F.2d 790, 793 (6th Cir. 1987) (“Where two or more alternative and independent","paragraphs":["para_201","para_202","para_203","para_204","para_205","para_206"]},{"title":"Majestic Care offered four reasons in support of its decision to terminate Bashaw, all of","paragraphs":["para_208","para_209","para_210","para_211","para_212","para_213"]},{"title":"Bashaw argues that her surreptitious recording of work meetings did not actually","paragraphs":["para_215"]},{"title":"To begin, Bashaw argues that Majestic Care’s reason must be pretextual because it had","paragraphs":["para_217"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 8","paragraphs":["para_219","para_220","para_221"]},{"title":"Ltd. Corp. v. NLRB, 237 F.3d 767, 778 (7th Cir. 2001) (“No company needs to have a set","paragraphs":["para_223","para_224","para_225","para_226","para_227","para_228","para_229","para_230","para_231","para_232","para_233","para_234"]},{"title":"The record shows that Nieset had significant concerns about Bashaw’s surreptitious","paragraphs":["para_236","para_237","para_238","para_239","para_240","para_241","para_242","para_243","para_244"]},{"title":"Bashaw’s surreptitious recording not only undermined Majestic Care’s trust in her, but","paragraphs":["para_246","para_247"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 9","paragraphs":["para_249","para_250","para_251","para_252","para_253","para_254","para_255","para_256","para_257","para_258","para_259","para_260"]},{"title":"Bashaw responds that her recordings are no different than her taking home written notes","paragraphs":["para_262","para_263"]},{"title":"In sum, Bashaw has provided no evidence to rebut Nieset’s testimony that she fired","paragraphs":["para_265","para_266","para_267"]},{"title":"Bashaw next contends that her work attendance and tardiness was a pretextual reason for","paragraphs":["para_269","para_270","para_271","para_272","para_273","para_274","para_275","para_276","para_277"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 10","paragraphs":["para_279"]},{"title":"Akebono Brake Corp., 814 F. App’x 108, 113 (6th Cir. 2020). As is excessive tardiness. See","paragraphs":["para_281","para_282","para_283","para_284","para_285","para_286","para_287","para_288","para_289","para_290"]},{"title":"Nassar, 570 U.S. 338 (2013). The law does not demand “an exact correlation” between the","paragraphs":["para_292","para_293","para_294","para_295","para_296","para_297","para_298","para_299","para_300"]},{"title":"Bashaw identified only one comparator, Jailah Hopson. Hopson testified she was “often","paragraphs":["para_302","para_303","para_304","para_305","para_306","para_307"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 11","paragraphs":["para_309","para_310","para_311"]},{"title":"Bashaw also contends that her firing was pretextual because Beatrice’s planned","paragraphs":["para_313","para_314","para_315","para_316","para_317","para_318","para_319","para_320","para_321"]},{"title":"In sum, Bashaw failed to provide enough information to determine whether Hopson was","paragraphs":["para_323","para_324"]},{"title":"Bashaw also argues that Majestic Care’s belief that she did not want to return to work","paragraphs":["para_326"]},{"title":"When a plaintiff seeks to establish pretext by arguing that a stated reason was not based","paragraphs":["para_328","para_329","para_330","para_331","para_332"]},{"title":"713–14 (6th Cir. 2007). An honest belief is one formed in “reasonable reliance on the","paragraphs":["para_334","para_335"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 12","paragraphs":["para_337","para_338"]},{"title":"Nieset reasonably formed an honest belief that Bashaw no longer wished to work at","paragraphs":["para_340","para_341","para_342","para_343","para_344","para_345","para_346"]},{"title":"Both Nieset and Wimberly knew, when they spoke to Bashaw, that she had told Kuhn that she","paragraphs":["para_348","para_349"]},{"title":"Nieset’s belief that Bashaw no longer wished to work at Majestic Care. For example, Bashaw","paragraphs":["para_351","para_352","para_353","para_354","para_355"]},{"title":"Bashaw contends that Nieset could not have honestly believed that Bashaw did not wish","paragraphs":["para_357","para_358","para_359","para_360","para_361","para_362"]},{"title":"In sum, Nieset formed an honest belief that Bashaw no longer wanted to work at Majestic","paragraphs":["para_364"]},{"title":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 13","paragraphs":["para_366"]},{"title":"Bashaw finally argues that the district court was right to conclude that material fact","paragraphs":["para_368","para_369","para_370","para_371","para_372","para_373"]}],"paragraphs":[{"text":"RECOMMENDED FOR PUBLICATION","paragraph_id":"para_1"},{"text":"Pursuant to Sixth Circuit I.O.P. 32.1(b)","paragraph_id":"para_2"},{"text":"File Name: 25a0047p.06","paragraph_id":"para_3"},{"text":"UNITED STATES COURT OF APPEALS","paragraph_id":"para_4"},{"text":"FOR THE SIXTH CIRCUIT","paragraph_id":"para_5"},{"text":"KIRSTYN PAIGE BASHAW,","paragraph_id":"para_6"},{"text":"Plaintiff-Appellant,","paragraph_id":"para_7"},{"text":"v.","paragraph_id":"para_8"},{"text":"MAJESTIC CARE OF WHITEHALL, LLC,","paragraph_id":"para_9"},{"text":"Defendant-Appellee.","paragraph_id":"para_10"},{"text":"┐","paragraph_id":"para_11"},{"text":"│","paragraph_id":"para_12"},{"text":"│","paragraph_id":"para_13"},{"text":"│","paragraph_id":"para_14"},{"text":"│","paragraph_id":"para_15"},{"text":"│","paragraph_id":"para_16"},{"text":"│","paragraph_id":"para_17"},{"text":"│","paragraph_id":"para_18"},{"text":"┘","paragraph_id":"para_19"},{"text":"No. 24-3292","paragraph_id":"para_20"},{"text":"Appeal from the United States District Court for the Southern District of Ohio at Columbus.","paragraph_id":"para_21"},{"text":"No. 2:23-cv-00291—Sarah Daggett Morrison, District Judge.","paragraph_id":"para_22"},{"text":"Argued: December 12, 2024","paragraph_id":"para_23"},{"text":"Decided and Filed: March 5, 2025","paragraph_id":"para_24"},{"text":"Before: KETHLEDGE, THAPAR, and LARSEN, Circuit Judges.","paragraph_id":"para_25"},{"text":"_________________","paragraph_id":"para_26"},{"text":"COUNSEL","paragraph_id":"para_27"},{"text":"ARGUED: Carrie J. Dyer, MANSELL LAW LLC, Columbus, Ohio, for Appellant. Joseph J.","paragraph_id":"para_28"},{"text":"Brennan, UB GREENSFELDER LLP, Cleveland, Ohio, for Appellee. ON BRIEF: Carrie J.","paragraph_id":"para_29"},{"text":"Dyer, Greg R. Mansell, Rhiannon M. Herbert, MANSELL LAW LLC, Columbus, Ohio, for","paragraph_id":"para_30"},{"text":"Appellant. Joseph J. Brennan, Emma M. Tomsick, UB GREENSFELDER LLP, Cleveland,","paragraph_id":"para_31"},{"text":"Ohio, for Appellee.","paragraph_id":"para_32"},{"text":"_________________","paragraph_id":"para_33"},{"text":"OPINION","paragraph_id":"para_34"},{"text":"_________________","paragraph_id":"para_35"},{"text":"LARSEN, Circuit Judge. Kirstyn Paige Bashaw was fired by her employer, Majestic","paragraph_id":"para_36"},{"text":"Care of Whitehall. Bashaw then sued Majestic Care under Title VII and Ohio law, claiming","paragraph_id":"para_37"},{"text":"retaliation. The district court granted Majestic Care summary judgment, holding it had provided","paragraph_id":"para_38"},{"text":"three non-pretextual grounds for Bashaw’s termination. For the reasons below, we AFFIRM.","paragraph_id":"para_39"},{"text":">","paragraph_id":"para_40"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 2","paragraph_id":"para_41"},{"text":"I.","paragraph_id":"para_42"},{"text":"Majestic Care operates a skilled nursing home and residential facility in Ohio. Bashaw","paragraph_id":"para_43"},{"text":"served as the Director of Social Services there from November 2021 until she was terminated in","paragraph_id":"para_44"},{"text":"March 2022. The Director of Social Services is not a medical position. Instead, Bashaw’s job","paragraph_id":"para_45"},{"text":"was to “direct and manage[] the day-to-day operations of the Social Service department,” which","paragraph_id":"para_46"},{"text":"included enhancing the psychosocial experiences of residents and their families. R. 21-1,","paragraph_id":"para_47"},{"text":"PageID 244–46. Bashaw’s role also included attending daily morning and end-of-day director","paragraph_id":"para_48"},{"text":"meetings. The morning meeting was considered the beginning of the work day.","paragraph_id":"para_49"},{"text":"Bashaw worked at Majestic Care for just under four months. During a six-week span,","paragraph_id":"para_50"},{"text":"between mid-January and early March 2022, she was tardy or late for the morning meetings","paragraph_id":"para_51"},{"text":"eleven times and absent from work without prior authorization eight and a half days.1 According","paragraph_id":"para_52"},{"text":"to Edward Beatrice, Majestic Care’s Executive Director and Bashaw’s manager, this affected","paragraph_id":"para_53"},{"text":"Bashaw’s performance, and she fell behind in her work.","paragraph_id":"para_54"},{"text":"During her four months at Majestic Care, Bashaw grew concerned about resident care,","paragraph_id":"para_55"},{"text":"which she began to document. Bashaw had specific concerns about one nurse whom Bashaw","paragraph_id":"para_56"},{"text":"heard twice cursing at patients and who Bashaw believed was giving inadequate medical","paragraph_id":"para_57"},{"text":"treatment to a leg wound suffered by Resident A. Bashaw reported her concerns about Resident","paragraph_id":"para_58"},{"text":"A’s care to Beatrice and the Director of Nursing, Amia Ford. These two allegedly responded by","paragraph_id":"para_59"},{"text":"telling Bashaw not to worry about the nursing department since that was outside her purview.","paragraph_id":"para_60"},{"text":"Soon after, Resident A’s leg was amputated because of a severe infection. Bashaw raised","paragraph_id":"para_61"},{"text":"additional concerns about patient care in mid-to-late February, including complaints about","paragraph_id":"para_62"},{"text":"patients suffering frequent urinary tract infections, nurses’ failure to provide bathing assistance,","paragraph_id":"para_63"},{"text":"lack of staff training to handle behavioral issues, and an overall lack of adequate care.","paragraph_id":"para_64"},{"text":"Bashaw’s concerns went beyond patient care, however. She viewed Beatrice as racially","paragraph_id":"para_65"},{"text":"insensitive. As examples, Bashaw offered that Beatrice referred to staff as “ghetto” and","paragraph_id":"para_66"},{"text":"“bougie.” R. 27-4, PageID 695. He commented that Muslim staff members “don’t celebrate","paragraph_id":"para_67"},{"text":"1Majestic Care marked employees as “late” if they arrived after the 9:00 AM morning meeting starts and","paragraph_id":"para_68"},{"text":"“tardy” if they were more than fifteen minutes late.","paragraph_id":"para_69"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 3","paragraph_id":"para_70"},{"text":"Easter.” Id. at 697. And he noted his surprise that he had liked a book by actor Will Smith.","paragraph_id":"para_71"},{"text":"Bashaw also believed that Beatrice had engaged in sexually harassing conduct when he allegedly","paragraph_id":"para_72"},{"text":"entered Admission Director Jailah Hopson’s office while her door was closed because she was","paragraph_id":"para_73"},{"text":"expressing breast milk for her newborn baby.","paragraph_id":"para_74"},{"text":"On Friday, February 25, 2022, Bashaw received a phone call from a social worker at Mt.","paragraph_id":"para_75"},{"text":"Carmel hospital about readmitting a former patient, Resident B. Resident B had been sent to Mt.","paragraph_id":"para_76"},{"text":"Carmel to receive emergency psychiatric care and Mt. Carmel now sought to discharge him back","paragraph_id":"para_77"},{"text":"to Majestic Care. During the routine call, Bashaw told Mt. Carmel that she believed Resident B","paragraph_id":"para_78"},{"text":"was suffering from hallucinations, tried to explain the nature of his psychosis and his home","paragraph_id":"para_79"},{"text":"situation, and suggested that Majestic Care was not equipped to care for someone with Resident","paragraph_id":"para_80"},{"text":"B’s psychological issues. She claims, however, that at no time did she tell Mt. Carmel that","paragraph_id":"para_81"},{"text":"Majestic Care would not readmit Resident B. Whatever Bashaw might have said, Mt. Carmel","paragraph_id":"para_82"},{"text":"left the call with the impression that Bashaw had refused Resident B’s readmission. After the","paragraph_id":"para_83"},{"text":"phone call, Kathleen Stein from Mt. Carmel called Beatrice and informed him that Bashaw had","paragraph_id":"para_84"},{"text":"refused readmission of Resident B and threatened to report Majestic Care to the Ohio","paragraph_id":"para_85"},{"text":"Department of Health for the illegal practice of patient dumping. Beatrice, who had not been on","paragraph_id":"para_86"},{"text":"the prior call with Bashaw, reassured Stein that Majestic Care would readmit Resident B and","paragraph_id":"para_87"},{"text":"dissuaded Mt. Carmel from contacting the state.","paragraph_id":"para_88"},{"text":"The phone call with Mt. Carmel prompted Beatrice to email the department heads the","paragraph_id":"para_89"},{"text":"next day, a Saturday. He explained that Resident B had been readmitted and that Mt. Carmel had","paragraph_id":"para_90"},{"text":"threatened to report Majestic Care, and he reminded everyone that only he and Ford could refuse","paragraph_id":"para_91"},{"text":"to readmit a patient.","paragraph_id":"para_92"},{"text":"On Tuesday, March 1, the situation deteriorated further. Bashaw met with Majestic","paragraph_id":"para_93"},{"text":"Care’s local Human Resources Representative, Chandler Kuhn, to raise her concerns about","paragraph_id":"para_94"},{"text":"resident care and Beatrice’s behavior. She had mentioned patient care concerns to Kuhn in prior","paragraph_id":"para_95"},{"text":"informal interactions as well, although Bashaw never filed any official reports through Majestic","paragraph_id":"para_96"},{"text":"Care’s reporting system. In her meeting with Kuhn, Bashaw highlighted numerous instances of","paragraph_id":"para_97"},{"text":"inadequate patient care in the facility. And she discussed Beatrice’s “sexual[ly] inappropriate","paragraph_id":"para_98"},{"text":"and/or harassment of a fellow coworker.” R. 27-1, PageID 633. Specifically, Bashaw reported","paragraph_id":"para_99"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 4","paragraph_id":"para_100"},{"text":"that Beatrice “had the tendency to invade [this employee’s] personal space while in her office”","paragraph_id":"para_101"},{"text":"and ignored her closed door despite everyone knowing she was expressing breast milk. Id. at","paragraph_id":"para_102"},{"text":"634; R. 30-3, PageID 886. Bashaw also reported that Beatrice was culturally insensitive and","paragraph_id":"para_103"},{"text":"gave as an example an instance where Beatrice said he would fight a staff member if he ever saw","paragraph_id":"para_104"},{"text":"her in an alley. This staff member was a black woman. Bashaw said that she tried discussing","paragraph_id":"para_105"},{"text":"this behavior with Beatrice, sending him links and resources for cultural competency training but","paragraph_id":"para_106"},{"text":"he ignored them. According to Kuhn’s notes, he asked Bashaw what evidence she had of","paragraph_id":"para_107"},{"text":"Beatrice’s alleged sexually harassing conduct and racial insensitivity and Bashaw claimed to be","paragraph_id":"para_108"},{"text":"gathering “screenshots, emails, recordings, and documentation.” R. 21-7, PageID 257. She","paragraph_id":"para_109"},{"text":"refused Kuhn’s request to see her evidence; but she did reveal that she “would listen in on","paragraph_id":"para_110"},{"text":"private conversations between [Beatrice] and the Business Office Manager” although “the voices","paragraph_id":"para_111"},{"text":"were too muffled” for her to “record . . . on her phone.” Id.","paragraph_id":"para_112"},{"text":"Kuhn’s notes also reveal that Bashaw told him several other things pertinent to this","paragraph_id":"para_113"},{"text":"appeal. According to Kuhn, Bashaw began the conversation by telling him: “I am not coming to","paragraph_id":"para_114"},{"text":"you [from] an HR standpoint, I am coming to you as a friend because I care about you.” R. 21-7,","paragraph_id":"para_115"},{"text":"PageID 257. Bashaw then told Kuhn if he “ha[dn’t] started job searching, that [he] should be,”","paragraph_id":"para_116"},{"text":"and that “she was on her 3rd interview this week.” Id. Bashaw also admitted in her deposition","paragraph_id":"para_117"},{"text":"testimony that she discussed interviewing with other potential employers. R. 27-1, PageID 635.","paragraph_id":"para_118"},{"text":"She also informed Kuhn that she and “3 other managers were leaving work early to meet off-site","paragraph_id":"para_119"},{"text":"and gather all ‘evidence’ available to provide an ultimatum to the Majestic Care home office”","paragraph_id":"para_120"},{"text":"that the company either fire Beatrice or “lose 4 department heads.” R. 21-7, PageID 257. In her","paragraph_id":"para_121"},{"text":"deposition, Bashaw acknowledged telling Kuhn that if Beatrice “was not released, then most, if","paragraph_id":"para_122"},{"text":"not all, of us would be putting in our notices.” R. 27-1, PageID 635. Bashaw invited Kuhn to","paragraph_id":"para_123"},{"text":"join the group.","paragraph_id":"para_124"},{"text":"Rather than join the group, Kuhn immediately reported the information to Beatrice and","paragraph_id":"para_125"},{"text":"the regional Human Resource Director, Simone Wimberly. Wimberly began to investigate","paragraph_id":"para_126"},{"text":"Bashaw’s allegations against Beatrice. Meanwhile, after her meeting with Kuhn, Bashaw left","paragraph_id":"para_127"},{"text":"work early without authorization. Beatrice had planned to deliver a “corrective action” to","paragraph_id":"para_128"},{"text":"Bashaw that afternoon, highlighting her attendance issues. Because Bashaw had already left","paragraph_id":"para_129"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 5","paragraph_id":"para_130"},{"text":"work, however, Beatrice was unable to deliver the corrective action that day. The record is","paragraph_id":"para_131"},{"text":"unclear whether Beatrice formed the intent to cite Bashaw before or after Kuhn informed him of","paragraph_id":"para_132"},{"text":"her allegations.","paragraph_id":"para_133"},{"text":"The next day everything fell apart. During the morning meeting, Bashaw, while","paragraph_id":"para_134"},{"text":"surreptitiously recording on her phone, confronted Beatrice about Resident B’s readmission. She","paragraph_id":"para_135"},{"text":"argued that because Resident B didn’t “have a diagnosis” and was “his own guardian,” Majestic","paragraph_id":"para_136"},{"text":"Care could not keep him in a locked unit. R. 21-12, PageID 266, Transcript at 2. She questioned","paragraph_id":"para_137"},{"text":"whether Majestic Care’s plans were legal and argued that Resident B should go “in patient” or","paragraph_id":"para_138"},{"text":"“go home.” Id. Beatrice informed Bashaw that he and Majestic Care’s Medical Director, Dr.","paragraph_id":"para_139"},{"text":"Miller, had made a clinical decision to support Resident B’s re-admission and temporarily keep","paragraph_id":"para_140"},{"text":"him in the locked unit due to his psychological issues until Miller could evaluate him. When","paragraph_id":"para_141"},{"text":"Bashaw kept pushing back on Beatrice’s decision, he asked her what she would like to do","paragraph_id":"para_142"},{"text":"instead. She answered, “I don’t know, you are the boss, you’re supposed to have these solutions","paragraph_id":"para_143"},{"text":"not me.” Id. at 3. Beatrice responded that the course they had chosen was the only viable","paragraph_id":"para_144"},{"text":"solution at the time, although he didn’t like it either. The conversation heated up and Bashaw","paragraph_id":"para_145"},{"text":"ultimately walked out of the unfinished morning meeting, leaving the facility for the day without","paragraph_id":"para_146"},{"text":"authorization.","paragraph_id":"para_147"},{"text":"After this, Beatrice contacted Majestic Care’s Vice President of Human Resources,","paragraph_id":"para_148"},{"text":"Melany Nieset, about Bashaw’s behavior, the Mt. Carmel incident, and the corrective action.","paragraph_id":"para_149"},{"text":"Nieset immediately launched an investigation, joining Wimberly’s ongoing efforts. Nieset and","paragraph_id":"para_150"},{"text":"Wimberly interviewed Bashaw on the phone about her allegations against Beatrice, the Mt.","paragraph_id":"para_151"},{"text":"Carmel incident, and her performance issues. During the interview, Bashaw discussed what she","paragraph_id":"para_152"},{"text":"described as the “beyond toxic into hostile work environment” at Majestic Care and volunteered","paragraph_id":"para_153"},{"text":"that she had been making secret recordings of meetings. R. 21-13, PageID 267, Transcript at 1.","paragraph_id":"para_154"},{"text":"One week later, Nieset terminated Bashaw’s employment and concluded that her allegations","paragraph_id":"para_155"},{"text":"against Beatrice were unfounded.","paragraph_id":"para_156"},{"text":"Bashaw then sued, claiming that she was fired because she had expressed concern about","paragraph_id":"para_157"},{"text":"resident care and Beatrice’s behavior. She initially alleged only retaliatory termination under","paragraph_id":"para_158"},{"text":"Ohio Revised Code § 3721.24 and a claim for wrongful termination in violation of public policy.","paragraph_id":"para_159"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 6","paragraph_id":"para_160"},{"text":"She later added Title VII and Ohio Revised Code § 4112 retaliation claims.2 Majestic Care","paragraph_id":"para_161"},{"text":"removed the case to federal court and the district court granted its motion for summary judgment.","paragraph_id":"para_162"},{"text":"The court reasoned that summary judgment was appropriate because Majestic Care had offered","paragraph_id":"para_163"},{"text":"three non-pretextual reasons for terminating Bashaw, although material fact disputes remained","paragraph_id":"para_164"},{"text":"about a fourth. Bashaw timely appealed.","paragraph_id":"para_165"},{"text":"II.","paragraph_id":"para_166"},{"text":"“We review the district court’s summary judgment decision de novo.” El-Khalil v.","paragraph_id":"para_167"},{"text":"Oakwood Healthcare, Inc., 23 F.4th 633, 634 (6th Cir. 2022). When, as here, there is no direct","paragraph_id":"para_168"},{"text":"evidence of discrimination, we analyze retaliation claims under the burden shifting framework","paragraph_id":"para_169"},{"text":"set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This requires that Bashaw","paragraph_id":"para_170"},{"text":"make a prima facie case that her employer fired her in response to protected activity. Id. at 802.","paragraph_id":"para_171"},{"text":"If she does that, the burden shifts to Majestic Care to set forth legitimate non-retaliatory reasons","paragraph_id":"para_172"},{"text":"for Bashaw’s termination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Graoch","paragraph_id":"para_173"},{"text":"Assocs. #33, L.P. v. Louisville/Jefferson Cnty. Metro Hum. Rels. Comm’n, 508 F.3d 366, 371","paragraph_id":"para_174"},{"text":"(6th Cir. 2007). Having done so, the burden returns to Bashaw to show that these proffered","paragraph_id":"para_175"},{"text":"reasons were pretextual. Graoch, 508 F.3d at 371. Throughout each phase, the burden of","paragraph_id":"para_176"},{"text":"persuasion remains with Bashaw. Id.","paragraph_id":"para_177"},{"text":"The district court assumed that Bashaw had established a prima facie case and resolved","paragraph_id":"para_178"},{"text":"the case on the ground that Majestic Care had offered non-pretextual reasons for terminating her","paragraph_id":"para_179"},{"text":"employment. Bashaw v. Majestic Care, 2024 WL 1256054, at *5 (S.D. Ohio Mar. 25, 2024).","paragraph_id":"para_180"},{"text":"We follow the same course. See Williams v. AT&T Mobility Servs., 847 F.3d 384, 396 (6th Cir.","paragraph_id":"para_181"},{"text":"2017).","paragraph_id":"para_182"},{"text":"Bashaw “can show pretext in three interrelated ways: (1) [showing] that the proffered","paragraph_id":"para_183"},{"text":"reasons had no basis in fact, (2) [showing] that the proffered reasons did not actually motivate","paragraph_id":"para_184"},{"text":"the employer’s action, or (3) [showing] that [the proffered reason was] insufficient to motivate","paragraph_id":"para_185"},{"text":"2Both parties agree that Bashaw’s claims under O.R.C. §§ 3721.24 and 4112 are substantially similar to","paragraph_id":"para_186"},{"text":"those raised under Title VII and thus rise or fall together. See Jones v. St. Jude Med. S.C., Inc., 504 F. App’x 473,","paragraph_id":"para_187"},{"text":"476 (6th Cir. 2012) (holding that the same analysis applies for a plaintiff’s Title VII and Ohio law retaliation","paragraph_id":"para_188"},{"text":"claims); Arnold v. City of Columbus, 515 F. App’x 524, 529 (6th Cir. 2013) (same).","paragraph_id":"para_189"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 7","paragraph_id":"para_190"},{"text":"the employer’s action.” Jackson v. Genesee Cnty. Rd. Comm’n, 999 F.3d 333, 350–51 (6th Cir.","paragraph_id":"para_191"},{"text":"2021) (citation omitted). At summary judgment, she must produce evidence that would allow a","paragraph_id":"para_192"},{"text":"jury to reject her employer’s stated reasons and infer that the real reason was retaliation. See","paragraph_id":"para_193"},{"text":"Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003).","paragraph_id":"para_194"},{"text":"Even if courts find some reasons pretextual, if “at least one other is not, the defendant","paragraph_id":"para_195"},{"text":"employer is still entitled to summary judgment.” Jones, 504 F. App’x at 477–78. This has long","paragraph_id":"para_196"},{"text":"been the law in this circuit. See Smith v. Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998)","paragraph_id":"para_197"},{"text":"(“[A]n employee must demonstrate that the employer’s reasons (each of them, if the reasons","paragraph_id":"para_198"},{"text":"independently caused the employer to take the action it did) are not true.” (cleaned up)); Sims v.","paragraph_id":"para_199"},{"text":"Cleland, 813 F.2d 790, 793 (6th Cir. 1987) (“Where two or more alternative and independent","paragraph_id":"para_200"},{"text":"legitimate, nondiscriminatory reasons are articulated by the defendant employer, the falsity or","paragraph_id":"para_201"},{"text":"incorrectness of one may not impeach the credibility of the remaining articulated reason(s).”);","paragraph_id":"para_202"},{"text":"Burks v. Yellow Transp., Inc., 258 F. App’x. 867, 876 (6th Cir. 2008); Rufo v. Dave & Busters,","paragraph_id":"para_203"},{"text":"Inc., 2007 WL 247891, at *3–4 (6th Cir. Jan. 31, 2007). In other words, if the employer proffers","paragraph_id":"para_204"},{"text":"a single independent nondiscriminatory reason for its conduct, that can defeat a retaliation claim.","paragraph_id":"para_205"},{"text":"III.","paragraph_id":"para_206"},{"text":"Majestic Care offered four reasons in support of its decision to terminate Bashaw, all of","paragraph_id":"para_207"},{"text":"which she now challenges on appeal: (1) “Bashaw had surreptitiously recorded work","paragraph_id":"para_208"},{"text":"conversations and meetings”; (2) “Bashaw was often tardy or missed work”; (3) “Bashaw told","paragraph_id":"para_209"},{"text":"Ms. Nieset that she did not want to return to work”; and (4) “Bashaw violated company policies","paragraph_id":"para_210"},{"text":"regarding the safe discharge of a resident.” Bashaw, 2024 WL 1256054, at *5. We address each","paragraph_id":"para_211"},{"text":"in turn.","paragraph_id":"para_212"},{"text":"A.","paragraph_id":"para_213"},{"text":"Bashaw argues that her surreptitious recording of work meetings did not actually","paragraph_id":"para_214"},{"text":"motivate Nieset to fire her. We disagree.","paragraph_id":"para_215"},{"text":"To begin, Bashaw argues that Majestic Care’s reason must be pretextual because it had","paragraph_id":"para_216"},{"text":"no official policy against surreptitious recording of meetings. It is true that Majestic Care had no","paragraph_id":"para_217"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 8","paragraph_id":"para_218"},{"text":"official policy prohibiting recording. Nor is it illegal in Ohio to secretly record conversations to","paragraph_id":"para_219"},{"text":"which one is a party. See O.R.C. § 2933.52(4). But the lack of an official policy or law","paragraph_id":"para_220"},{"text":"prohibiting the behavior does not itself demonstrate pretext on Majestic Care’s part. See 6 W.","paragraph_id":"para_221"},{"text":"Ltd. Corp. v. NLRB, 237 F.3d 767, 778 (7th Cir. 2001) (“No company needs to have a set","paragraph_id":"para_222"},{"text":"procedure for what action it will take when adjudicating every single employee problem.”);","paragraph_id":"para_223"},{"text":"Gilbert v. Des Moines Area Cmty. Coll., 495 F.3d 906, 919 (8th Cir. 2007) (“lack of an explicit","paragraph_id":"para_224"},{"text":"policy regarding plagiarism by faculty members does not demonstrate [employer’s] decision to","paragraph_id":"para_225"},{"text":"investigate and discipline [plaintiff] for his actions was pretextual”); Hoppens v. Gen. Nutrition","paragraph_id":"para_226"},{"text":"Ctr., 129 F.3d 608, at *3 n.1 (5th Cir. 1997) (rejecting argument that employer could not point to","paragraph_id":"para_227"},{"text":"a “legitimate, nondiscriminatory reason . . . because it lacks a written policy clearly dealing with","paragraph_id":"para_228"},{"text":"her case”); Martinez v. Barnhart, 177 F. App’x 796, 801 (10th Cir. 2006) (affirming district","paragraph_id":"para_229"},{"text":"court’s holding that “the absence of a policy did not create an inference of pretext”). Nieset","paragraph_id":"para_230"},{"text":"testified that Bashaw’s surreptitious recordings undermined Majestic Care’s trust in her. And an","paragraph_id":"para_231"},{"text":"employer may terminate an employee whose actions undermine the employer’s trust. 6 W. Ltd.","paragraph_id":"para_232"},{"text":"Corp., 237 F.3d at 778 (“It is also obvious that, at a bare minimum, companies must be able to","paragraph_id":"para_233"},{"text":"trust their employees . . . [and] must be able to discharge . . . an untruthful employee.”).","paragraph_id":"para_234"},{"text":"The record shows that Nieset had significant concerns about Bashaw’s surreptitious","paragraph_id":"para_235"},{"text":"recording. As soon as she learned of it. Nieset told Bashaw that this was a “huge concern,” that","paragraph_id":"para_236"},{"text":"she would have to tell the other team members, that this would undermine trust in the workplace,","paragraph_id":"para_237"},{"text":"and she sought to terminate the conversation to speak with legal counsel. R. 21-13, PageID, 267","paragraph_id":"para_238"},{"text":"Transcript at 8–10. On the day that Nieset terminated Bashaw, she told upper management that","paragraph_id":"para_239"},{"text":"the reason was “Paige’s admission of using a voice recorder with no one’s knowledge in","paragraph_id":"para_240"},{"text":"morning meetings.” R. 21-11, PageID 265. And she testified that these recordings “create[]","paragraph_id":"para_241"},{"text":"mistrust” and issues with “open communication between individuals once they become aware","paragraph_id":"para_242"},{"text":"that there are recordings.” R. 27-6, PageID 807. Bashaw points us to no contradictory evidence,","paragraph_id":"para_243"},{"text":"suggesting that these reasons were pretextual.","paragraph_id":"para_244"},{"text":"Bashaw’s surreptitious recording not only undermined Majestic Care’s trust in her, but","paragraph_id":"para_245"},{"text":"Majestic Care reasonably believed they increased its risk of legal liability. An employer may","paragraph_id":"para_246"},{"text":"terminate an employee for creating legal risk for the company. See, e.g., Williams v. Hous. Auth.","paragraph_id":"para_247"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 9","paragraph_id":"para_248"},{"text":"of Savannah, Inc., 834 F. App’x 482, 489 (11th Cir. 2020) (holding that terminating an employee","paragraph_id":"para_249"},{"text":"for losing keys that “could put residents in danger and [the employer] at risk of liability” was not","paragraph_id":"para_250"},{"text":"pretextual); Turner v. Marathon Petroleum Co., LP, 804 F. App’x 375, 378 (6th Cir. 2020)","paragraph_id":"para_251"},{"text":"(holding that terminating an employee for closing the wrong safety valve that created significant","paragraph_id":"para_252"},{"text":"safety risks was not pretextual). During the morning meetings, Majestic Care’s team repeatedly","paragraph_id":"para_253"},{"text":"discussed sensitive health information, likely protected under the Health Insurance Portability","paragraph_id":"para_254"},{"text":"and Accountability Act (HIPAA). In fact, each of the three recorded conversations reference the","paragraph_id":"para_255"},{"text":"names and medical care of one or more patients.3 Exposure of protected information without a","paragraph_id":"para_256"},{"text":"patient’s consent could open Majestic Care up to a wide range of civil penalties. See 45","paragraph_id":"para_257"},{"text":"C.F.R. § 160.404. And Nieset testified that Bashaw’s recordings “create[d] risk and exposure for","paragraph_id":"para_258"},{"text":"the organization in regards to confidential information” and “patient information that might be","paragraph_id":"para_259"},{"text":"breached.” R. 27-6, PageID 807.","paragraph_id":"para_260"},{"text":"Bashaw responds that her recordings are no different than her taking home written notes","paragraph_id":"para_261"},{"text":"of the meeting to review. Even assuming that’s true, it does not demonstrate that Nieset’s","paragraph_id":"para_262"},{"text":"proffered reasons were pretextual or that they were not the actual reason for her termination.","paragraph_id":"para_263"},{"text":"In sum, Bashaw has provided no evidence to rebut Nieset’s testimony that she fired","paragraph_id":"para_264"},{"text":"Bashaw because she reasonably believed Bashaw had undermined trust in the workplace and put","paragraph_id":"para_265"},{"text":"the company at risk. See Niswander v. Cincinnati Ins., 529 F.3d 714, 728 (6th Cir. 2008).","paragraph_id":"para_266"},{"text":"B.","paragraph_id":"para_267"},{"text":"Bashaw next contends that her work attendance and tardiness was a pretextual reason for","paragraph_id":"para_268"},{"text":"firing her because similarly situated employees were not also terminated. We once again","paragraph_id":"para_269"},{"text":"disagree.","paragraph_id":"para_270"},{"text":"3The U.S. Health and Human Services’ HIPAA privacy rule protects all “individually identifiable health","paragraph_id":"para_271"},{"text":"information . . . in any form or media, whether electronic, paper, or oral.” This protected data includes information","paragraph_id":"para_272"},{"text":"“that relates to” (1) “the individual’s past, present or future physical or mental health or condition”; (2) “the","paragraph_id":"para_273"},{"text":"provision of health care to the individual”; and (3) “the past, present, or future payment for the provision of health","paragraph_id":"para_274"},{"text":"care to the individual.” Identifying information includes a person’s “name, address, birthdate, [and] Social Security","paragraph_id":"para_275"},{"text":"Number.” See “Summary of the HIPAA Privacy Rule,” https://www.hhs.gov/hipaa/for-professionals/privacy/laws-","paragraph_id":"para_276"},{"text":"regulations/index.html (last visited Feb. 6, 2025).","paragraph_id":"para_277"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 10","paragraph_id":"para_278"},{"text":"Unauthorized absences from work are a valid reason for termination. See Sukari v.","paragraph_id":"para_279"},{"text":"Akebono Brake Corp., 814 F. App’x 108, 113 (6th Cir. 2020). As is excessive tardiness. See","paragraph_id":"para_280"},{"text":"Keogh v. Concentra Health Servs., Inc., 752 F. App’x 316, 323 (6th Cir. 2018) (holding under","paragraph_id":"para_281"},{"text":"the Family and Medical Leave Act that the plaintiff’s firing was not pretextual in part because he","paragraph_id":"para_282"},{"text":"was consistently late for work); Velazquez v. Yoh Servs., LLC, 2019 WL 1448716, at *13","paragraph_id":"para_283"},{"text":"(S.D.N.Y. Mar. 15, 2019) (holding under Title VII that “habitual tardiness” was “a perfectly","paragraph_id":"para_284"},{"text":"valid reason to fire [the plaintiff]”). So to show that this reason was pretextual, Bashaw had to","paragraph_id":"para_285"},{"text":"point to similarly-situated employees, known as comparators, who were not fired even though","paragraph_id":"para_286"},{"text":"they engaged in the same or similar conduct. Tennial v. U.S. Postal Serv., 840 F.3d 292, 303–04","paragraph_id":"para_287"},{"text":"(6th Cir. 2016). Bashaw and her proposed comparators must be “similar in all relevant respects,”","paragraph_id":"para_288"},{"text":"including having “engaged in acts of comparable seriousness.” Bobo v. United Parcel Serv., 665","paragraph_id":"para_289"},{"text":"F.3d 741, 751 (6th Cir. 2012), abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v.","paragraph_id":"para_290"},{"text":"Nassar, 570 U.S. 338 (2013). The law does not demand “an exact correlation” between the","paragraph_id":"para_291"},{"text":"plaintiff and the comparator, see id. at 752, but the comparator must have “engaged in","paragraph_id":"para_292"},{"text":"substantially identical conduct.” Manzer v. Diamond Shamrock Chems., 29 F.3d 1078, 1084 (6th","paragraph_id":"para_293"},{"text":"Cir. 1994).","paragraph_id":"para_294"},{"text":"Majestic Care’s proffered reason for firing Bashaw was that she had been repeatedly late,","paragraph_id":"para_295"},{"text":"tardy, and absent without authorization. Beatrice’s proposed “corrective action” noted that","paragraph_id":"para_296"},{"text":"Bashaw had been absent seven and a half days (five days counted as a single occurrence) and","paragraph_id":"para_297"},{"text":"tardy or late eleven times, over the past six weeks. Bashaw then left work early without","paragraph_id":"para_298"},{"text":"authorization two more times, on both March 1 and 2. So, all told, Bashaw was absent roughly","paragraph_id":"para_299"},{"text":"eight and a half days and tardy eleven times over this six-week span.","paragraph_id":"para_300"},{"text":"Bashaw identified only one comparator, Jailah Hopson. Hopson testified she was “often","paragraph_id":"para_301"},{"text":"late to the morning meeting” but “was never disciplined or given corrective action for [her]","paragraph_id":"para_302"},{"text":"tardiness” and that “[i]t was very common for at least one team member to be late to the morning","paragraph_id":"para_303"},{"text":"meeting each day.” R. 30-3, PageID 885–86. She added that, during her six or seven months of","paragraph_id":"para_304"},{"text":"employment, “there were 4–5 times” she had to miss work and “was unable to give prior","paragraph_id":"para_305"},{"text":"advanced notice.” Id. at 886. Hopson’s declaration does not detail how many times she was late","paragraph_id":"para_306"},{"text":"or tardy to the morning meeting, however, or whether any of her absences were excused after the","paragraph_id":"para_307"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 11","paragraph_id":"para_308"},{"text":"fact. Bashaw thus “did not produce sufficient information about [Hopson’s] alleged","paragraph_id":"para_309"},{"text":"absenteeism . . . to indicate whether the absenteeism . . . [was] of ‘comparable seriousness’ to the","paragraph_id":"para_310"},{"text":"conduct” Bashaw engaged in. Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).","paragraph_id":"para_311"},{"text":"Bashaw also contends that her firing was pretextual because Beatrice’s planned","paragraph_id":"para_312"},{"text":"corrective action would have been her first warning about attendance and timeliness issues, and","paragraph_id":"para_313"},{"text":"it stated only that “[a]dditional occurrences could result in second corrective actions.” R. 21-3,","paragraph_id":"para_314"},{"text":"PageID 249. According to Bashaw, this shows pretext because “[a]s of March 1, 2022, Mr.","paragraph_id":"para_315"},{"text":"Beatrice did not think that Bashaw’s attendance issues warranted termination.” Appellant Br. at","paragraph_id":"para_316"},{"text":"37. Even if that’s true, that doesn’t demonstrate that Nieset’s decision to terminate Bashaw","paragraph_id":"para_317"},{"text":"based on her attendance was pretextual. Beatrice’s role was merely to recommend whether to","paragraph_id":"para_318"},{"text":"fire Bashaw. Nieset made the ultimate termination decision. Bashaw does not explain how","paragraph_id":"para_319"},{"text":"Beatrice’s purported belief that her attendance issues warranted a second chance demonstrates","paragraph_id":"para_320"},{"text":"that Nieset’s decision to fire her for attendance issues was pretextual.","paragraph_id":"para_321"},{"text":"In sum, Bashaw failed to provide enough information to determine whether Hopson was","paragraph_id":"para_322"},{"text":"an adequate comparator or other evidence to show this reason was pretext for retaliation.","paragraph_id":"para_323"},{"text":"C.","paragraph_id":"para_324"},{"text":"Bashaw also argues that Majestic Care’s belief that she did not want to return to work","paragraph_id":"para_325"},{"text":"was pretextual because it was not based in fact. We again disagree.","paragraph_id":"para_326"},{"text":"When a plaintiff seeks to establish pretext by arguing that a stated reason was not based","paragraph_id":"para_327"},{"text":"in fact, she must show that the facts necessary for the employer’s legitimate, non-retaliatory","paragraph_id":"para_328"},{"text":"reason were false or never happened. Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357,","paragraph_id":"para_329"},{"text":"366 (6th Cir. 2007), abrogated in part on other grounds, Lewis v. Humboldt Acquisition Corp.,","paragraph_id":"para_330"},{"text":"681 F.3d 312 (6th Cir. 2012) (en banc). An employer can defeat a pretext argument if it can","paragraph_id":"para_331"},{"text":"show that it “honestly believed” its proffered reason. Clay v. U.S. Parcel Serv., 501 F.3d 695,","paragraph_id":"para_332"},{"text":"713–14 (6th Cir. 2007). An honest belief is one formed in “reasonable reliance on the","paragraph_id":"para_333"},{"text":"particularized facts that were before it at the time the decision was made.’” Wright v. Murray","paragraph_id":"para_334"},{"text":"Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006) (emphasis added) (citation omitted). But “we do","paragraph_id":"para_335"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 12","paragraph_id":"para_336"},{"text":"not require that the decisional process used by the employer be optimal or that it left no stone","paragraph_id":"para_337"},{"text":"unturned.” Id.","paragraph_id":"para_338"},{"text":"Nieset reasonably formed an honest belief that Bashaw no longer wished to work at","paragraph_id":"para_339"},{"text":"Majestic Care. Before interviewing Bashaw, Nieset learned that Bashaw had told Kuhn she was","paragraph_id":"para_340"},{"text":"interviewing for other positions. And after speaking with Bashaw, Nieset testified that Bashaw","paragraph_id":"para_341"},{"text":"“conveyed . . . she didn’t feel comfortable working in the building” and that “[s]he didn’t want to","paragraph_id":"para_342"},{"text":"return to the building.” R. 27-6, PageID 795, 805. The district court considered these statements","paragraph_id":"para_343"},{"text":"and determined that Nieset reasonably formed an honest belief that Bashaw did not wish to","paragraph_id":"para_344"},{"text":"return to work. Bashaw, 2024 WL 1256054, at *7.","paragraph_id":"para_345"},{"text":"Additional facts in the record also show that Nieset’s belief was honest and reasonable.","paragraph_id":"para_346"},{"text":"Both Nieset and Wimberly knew, when they spoke to Bashaw, that she had told Kuhn that she","paragraph_id":"para_347"},{"text":"had been interviewing for other jobs and planned to resign on March 2 if Beatrice was not","paragraph_id":"para_348"},{"text":"terminated. And Bashaw made mixed statements during the conversation that could support","paragraph_id":"para_349"},{"text":"Nieset’s belief that Bashaw no longer wished to work at Majestic Care. For example, Bashaw","paragraph_id":"para_350"},{"text":"claimed that Majestic Care had been “a beyond toxic [] hostile work environment for","paragraph_id":"para_351"},{"text":"approximately 2 months,” that “there are very very few meetings that . . . I have been able to do","paragraph_id":"para_352"},{"text":"or say anything without some type of kick-back,” that she was “gaslighted on a regular basis,”","paragraph_id":"para_353"},{"text":"and that she had consistently “been ignored and/or just like told to be quiet.” R. 21-3, PageID","paragraph_id":"para_354"},{"text":"267, Transcript at 1–4.","paragraph_id":"para_355"},{"text":"Bashaw contends that Nieset could not have honestly believed that Bashaw did not wish","paragraph_id":"para_356"},{"text":"to return to work because the recording shows that Bashaw never said she no longer wanted to","paragraph_id":"para_357"},{"text":"work at Majestic Care. Bashaw said on the recording that she loved her job, loved taking care of","paragraph_id":"para_358"},{"text":"the residents, that she had a “lot of hope that things would get better,” and that the","paragraph_id":"para_359"},{"text":"“communication would change.” R. 21-13, PageID 267, Transcript at 9, 13. Based on what","paragraph_id":"para_360"},{"text":"Nieset and Wimberly knew about Bashaw’s efforts to leave Majestic Care, however, it was not","paragraph_id":"para_361"},{"text":"unreasonable for them to believe that Bashaw no longer wished to work there.","paragraph_id":"para_362"},{"text":"In sum, Nieset formed an honest belief that Bashaw no longer wanted to work at Majestic","paragraph_id":"para_363"},{"text":"Care. A jury could not find this reason was pretext for retaliation.","paragraph_id":"para_364"},{"text":"No. 24-3292 Bashaw v. Majestic Care of Whitehall Page 13","paragraph_id":"para_365"},{"text":"D.","paragraph_id":"para_366"},{"text":"Bashaw finally argues that the district court was right to conclude that material fact","paragraph_id":"para_367"},{"text":"disputes remain regarding whether Majestic Care fired Bashaw for refusing to readmit Resident","paragraph_id":"para_368"},{"text":"B. We need not reach this question, however, because Majestic Care provided three independent","paragraph_id":"para_369"},{"text":"non-pretextual reasons for firing Bashaw. That is sufficient to defeat a retaliation claim under","paragraph_id":"para_370"},{"text":"our caselaw. See Smith, 155 F.3d at 806; Jones, 504 F. 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