Mitchell v. Toledo Hosp., No. 91-3268

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: ROSEN; NATHANIEL R. JONES
• Citation: 964 F.2d 577
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 76, 59 Empl. Prac. Dec. P 41,640 Shirley J. MITCHELL, Plaintiff-Appellant, v. TOLEDO HOSPITAL, Defendant-Appellee.
• Docket Number: No. 91-3268
• Decision Date: 21 May 1992

Page 577

964 F.2d 577 59 Fair Empl.Prac.Cas. (BNA) 76, 59 Empl.
Prac. Dec. P 41,640 Shirley J. MITCHELL, Plaintiff-Appellant,
v.
TOLEDO HOSPITAL, Defendant-Appellee. No. 91-3268. United States Court of Appeals,
Sixth Circuit. Submitted Sept. 30, 1991.
Decided May 21, 1992.

Page 578

William J. Peters (briefed), Toledo, Ohio, for plaintiff-appellant.

Michael S. Scalzo (briefed), Marshall & Melhorn, Toledo, Ohio, for defendant-appellee.

Before: JONES and NELSON, Circuit Judges; and ROSEN, District Judge. ^*

ROSEN, District Judge.

Plaintiff Shirley Mitchell appeals the District Court's entry of summary judgment in favor of Defendant Toledo Hospital in this race and age discrimination/termination of employment action. For the following reasons, we affirm the decision of the District Court.

I. INTRODUCTION

This is a race and age discrimination/termination of employment case. In her Complaint filed in the U.S. District Court for the Northern District of Ohio on December 8, 1989, Plaintiff alleged that her discharge from employment at the Defendant hospital on December 12, 1988 was in violation of the Fourteenth Amendment, 42 U.S.C. §§ 1981 and 1983, Title VII, the ADEA and Sections 4112.02(A) and 4112.99 of the Ohio Revised Code. Paragraph 1 of Plaintiff's Complaint also contained a passing allegation that Ms. Mitchell had once been denied a promotion at the hospital because of her race, but she admitted in her deposition that this lawsuit only dealt with her discharge and her attorney confirmed that the allegation in the Complaint was a "misprint". ¹

In an Opinion and Order dated February 14, 1991, the District Court granted the

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Defendant's Motion for Summary Judgment, finding that Plaintiff had failed to establish a prima facie case of race or age discrimination, and even assuming arguendo that she did establish a prima facie case, Plaintiff failed to establish that the non-discriminatory reason given by the hospital for her discharge--misuse of hospital property--was pretextual. A Judgment of dismissal was accordingly entered on February 20, 1991.

Plaintiff timely filed her Notice of Appeal to the Sixth Circuit.

II. FACTUAL BACKGROUND

Plaintiff Shirley Mitchell is a 51-year old black female who had been employed by Defendant Toledo Hospital ("the Hospital") for 29 years prior to the termination of her employment in December 1988. At the time of her discharge, Ms. Mitchell was employed as an accounts examiner. ² As an accounts examiner, Ms. Mitchell was responsible for billing Welfare for charges incurred by Welfare patients at the Hospital. It was Ms. Mitchell's responsibility to review the appropriate forms and make sure they were correctly filled out before sending them to Welfare so that the Hospital could be reimbursed for the patients' charges by that agency.

On December 5, 1988, certain "Sterilization Consent Forms" (the "forms") turned up missing. The forms had been seen in a box on a coffee table in the office two days earlier. Because her "team leader" and immediate supervisor, Martha Holmes, was absent, she went to Ron Wachsman, the "billing manager" who apparently was Plaintiff's supervisor's supervisor, and asked him if he had seen the box of forms that had been on the coffee table.

Wachsman told Ms. Mitchell that he had recently moved the coffee table but did not indicate to her whether he had seen any box of forms on the table. See J.A. 63. From Wachsman's statement that he had moved the coffee table, Ms. Mitchell surmised that he must have set the box of forms on the floor and that housekeeping might have thrown the box in the trash. Id. Plaintiff then proceeded to look for the box of forms for two or three hours on December 5th but to no avail.

Around 8 o'clock in the morning the next day, Tuesday, December 6, 1988, Plaintiff found the box of forms in the hospital basement. She took the box to her office and placed it under her desk. Plaintiff testified at her deposition that on December 6th she only told one person--Cathy Brown, one of Plaintiff's co-workers--that she had found the forms. J.A. 83. She did not tell any of her supervisors. Id.

Plaintiff subsequently told three of her fellow welfare accounts examiners about finding the forms, and she and these three co-workers agreed to play a "practical joke" on Wachsman:

MITCHELL

A: I remember we were jokingly, Mary [Mihalko], Sue [Sheronick], Cindy [Dawson] and I, saying that we weren't going to tell Ron Wachsman until, jokingly, December....

DEFENSE COUNSEL

Q: You said until December. It was December.

A: Christmas I was saying. We were jokingly saying it.

Q: You were not going to tell Ron until the day before Christmas?

A: Uh-huh, or something like that.

Q: Was it you or the--

A: Mary Mihalko and I jokingly said it.

Q: Okay.

A: And Cindy said yes, he doesn't need to know anytime soon.

Q: Who said it first?

A: We all said it in unison.

Q: You all said it in unison?

A: Uh-huh, and I said not until Christmas.

Q: You were the one that said not until Christmas. That was going to be his Christmas present or what?

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A: No. It was said jokingly....

J.A. at 80-82.

A couple of hours later that morning, Mitchell's supervisor, Ronald Wachsman asked her if she had seen the forms. She denied having seen them, even though she knew that she had them under her desk. ³ She kept the forms hidden under her desk for another day and then moved them to her personal file cabinet which she locked with a key. On Thursday morning, December 8, Plaintiff was advised by a co-worker that Mr. Wachsman and Mr. Mike Swick, another supervisor, had been looking for the forms and had looked under her desk on Wednesday evening. Later on Thursday, Mr. Wachsman again asked Plaintiff if she had located the forms and she again denied having seen them.

On Friday, December 9, Mr. Wachsman called Ms. Mitchell into his office and informed her that the forms had been found. When he asked her why she had not told him that she had found them, Mitchell replied that "she wanted him to stew in his own mess." J.A. at 89.

Plaintiff was informed that her actions constituted a misuse of Hospital property, a terminable offense according to the Hospital's employee handbook. The Hospital's five member review board was convened and unanimously agreed that discharge was the appropriate disciplinary action.

Accordingly, on Monday, December 12, 1988, in a meeting with Mr. Wachsman and Mr. Baranski of the hospital's Human Resources department, Plaintiff was advised that her employment was terminated. Mitchell then brought the instant action, claiming that she was terminated because of her race and her age.

III. PLAINTIFF'S ARGUMENTS IN THE DISTRICT COURT AND IN THIS APPEAL

While Plaintiff alleged in her Complaint that the hospital has not terminated any white or younger employees for the same type of conduct in which she engaged, she admitted at her deposition that she knows of no white employees or employees under the age of 40 who engaged in similar conduct and were not discharged. Her only basis for her claims of discrimination is her contention that a lot of white people have not been discharged who have done what Plaintiff believes were worse things than what she did. However, at her deposition she could only identify two non-minority employees, Karen Lind, one of Plaintiff's fellow account examiners whom Plaintiff claims had a poor absentee record, and Bobbie Walley, an employee in charge of filing, who in 1987 once cursed her team leader. Neither of these two individuals was fired, and Plaintiff believes that they were afforded more lenient treatment because they were white.

Additionally, after Defendant moved for summary judgment, Plaintiff submitted with her Response to the Summary Judgment Motion a hearsay Affidavit, which is dated February 8, 1991, seven months after her deposition, in which she states that she had "been advised by [unidentified] employees of Toledo Hospital" that at some unspecified point in time, two white female employees, Connie Kortgoede and Karen Lind, kept medicare checks and personal checks payable to Toledo Hospital hidden in their desks for two years but the only disciplinary action taken against either woman was that one of them was transferred out of the Billing Department to another department.

Further, although Plaintiff admits having hidden the subject forms as described above, and admits having intentionally misled her supervisor every time he asked her if she had seen them, Plaintiff argues that her hiding the forms from her supervisor does not constitute a misuse of Hospital property--which was the reason given for her discharge. Rather, she contends that because she had hidden the forms under her desk and in her filing cabinet, "[a]t no

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time after December 6, 1988 were the forms any place than in a proper location. [T]he forms after being found did not leave the Hospital Billing Department. The Hospital property was under lock and key for approximately twenty four (24) hours and certainly were not misused."

IV. THE DISTRICT COURT'S DECISION

Applying the four-part McDonnell Douglas test for a prima facie showing of discrimination, i.e., showing that the plaintiff

(1) was a member of a protected class,

(2) was discharged,

(3) was qualified for the position, and

(4) was replaced by a person outside the class,

the District Court determined that Plaintiff failed to establish a prima facie case of race or age discrimination because "nowhere in the record is it alleged that she was replaced by a person outside the [protected] class." Further, noting that Plaintiff could also have established a prima facie case by presenting credible, direct evidence of discrimination, the Court observed that Mitchell had not presented any such evidence.

The District Court went on, however, to hold that even assuming arguendo that Mitchell had met all four prongs of the McDonnell Douglas test, the...