Labor & Employment Law Daily Wrap Up, RETALIATION—6th Cir.: Nursing home director failed to show termination after complaints about patient care and her manager was retaliatory, (Mar 6, 2025)

By Kathleen Kapusta, J.D.

The district court found summary judgment appropriate because the employer offered three non-pretextual reasons for terminating the director and the appeals court agreed.

A social services director for a skilled nursing home and residential facility, who expressed concern about patient care and her manager’s alleged racial insensitivity, failed to convince the Sixth Circuit that her employer’s reasons for firing her were pretext for retaliation. Affirming summary judgment against her Title VII and state-law claims, the appeals court found the employer provided three independent non-pretextual reasons for firing her, including that she surreptitiously recorded meetings, was often tardy or missed work, and that it reasonably believed she did not want to return to work (Bashaw v. Majestic Care of Whitehall, LLC, No. 24-3292 (6th Cir. Mar. 5, 2025)).

As Director of Social Services, the plaintiff managed the day-to-day operations of the Social Services department and was required to attend daily morning and end-of-day director meetings. The morning meeting was considered the beginning of the workday. During her four-month tenure with the facility, the director was tardy or late for the morning meetings 11 times and absent from work without prior authorization eight and a half days.

Patient concerns. During her time there, she was also concerned about resident care, and particularly a nurse whom she had heard cursing at patients and whom she believed was providing inadequate medical treatment to a resident with a leg wound whose leg was later amputated due to a severe infection. She reported her concerns to her manager and to the director of nursing, but both allegedly told her the nursing department was outside of her purview.

Manager concerns. The director also believed her manager was racially insensitive. She claimed he referred to staff as “ghetto” and “bougie,” noted that Muslim staff members do not celebrate Easter, and was surprised he liked a book by a Black author. She also thought he engaged in sexually harassing conduct when he entered an employee’s office while her door was closed because she was expressing milk for her newborn baby.

In late February 2025, a hospital social worker called the director about readmitting a patient who had been sent to the hospital for emergency psychiatric care. According to the social worker, the director refused his readmission. The hospital notified the director’s manager about the refusal and threatened to report the facility to the state for patient dumping. The manager reassured the hospital that the patient would be readmitted and persuaded it not to contact the state.

Report to HR. On March 1, the director told an HR representative about her concerns regarding patient care and her manager’s behavior. She also told him that she was talking to him as a friend, that he should be looking for another job, that she had been interviewing with other companies, and that if her manager was not fired, the facility would lose four department heads. She then left early for the day without authorization. The HR representative reported this conversation to the director’s manager and regional HR director.

Termination. The following day, the director confronted her manager about the patient’s readmission. After a heated exchange, the director left the facility for the day without authorization. The manager then contacted the HR VP, who immediately launched an investigation. She interviewed the director, who called the work environment toxic and admitted to secretly recording meetings. One week later, the HR VP terminated her.

Lower court proceedings. The director then sued, alleging, among other things, retaliation in violation of Title VII and state law. The district court granted summary judgment to her employer.

Surreptitious recordings. Assuming, as did the district court, that the director established a prima facie case, the Sixth Circuit, on appeal, addressed the non-pretextual reasons offered by the facility for terminating her, including her surreptitious recordings of work conversations and meetings. For her part, the director argued this reason was pretextual because the facility had no official policy against secretly recording meetings and it is not illegal in Ohio to secretly record conversations to which one is a party.

The HR VP, however, testified that the surreptitious recordings undermined the facility’s trust in the director. Indeed, she told the director when she learned of the recordings that this was a “huge concern,” that she would have to tell the other team members, that this would undermine trust in the workplace, and she attempted to terminate her conversation with the director in order to speak with legal counsel.

There was also evidence the facility believed the recordings increased its risk of legal liability because during the morning meetings, which the director recorded, the participants discussed the names and medical care of patients, and this information was likely protected under HIPAA. Though the director argued that her recordings were no different than taking home written notes of the meetings, the court explained that, even assuming this were true, it did not show pretext.

Attendance issues. The director next argued that her attendance, including tardiness for morning meetings, was a pretextual reason for firing her because similarly situated employees were not also terminated for attendance issues. She identified one comparator who testified she was “often late to the morning meeting” but “was never disciplined or given corrective action for [her] tardiness” and that “[i]t was very common for at least one team member to be late to the morning meeting each day.”

The alleged comparator, however, did not clarify how many times she was late or tardy to the morning meeting or whether any of her absences were later excused. Thus, said the court, this was not sufficient to show her attendance issues were comparable to the director’s and she also failed to show this reason was pretextual.

Desire to return to work. Nor was the court persuaded that the HR VP’s belief the director did not want to return to work was pretextual because it was not based in fact. The HR VP knew the director told the HR representative she was interviewing for other positions. Further, the VP testified that the director, during the investigatory interview, “conveyed... she didn’t feel comfortable working in the building” and that “[s]he didn’t want to return to the building.” She also stated that the facility had been “a beyond toxic [] hostile work environment for approximately 2 months,” that “there are very very few meetings that... I have been able to do or say anything without some type of kick-back,” that she was “gaslighted on a regular basis,” and that she had consistently “been ignored and/or just like told to be quiet.”

Though the director pointed out that she also said she loved her job, loved taking care of the residents, and had a “lot of hope that things would get better,” and the “communication would change,” the court found it reasonable, based on what the HR VP knew about the director’s attempts to leave, to believe the director no longer wished to work there. In sum, said the court, the HR VP “formed an honest belief that [the director] no longer wanted to work at Majestic Care” and a jury could not find this was pretextual.

The case is No. 24-3292.

Judge: Larsen, J.

Attorneys: Carrie J. Dyer (Mansell Law) for Kirstyn Paige Bashaw. Joseph John Brennan (UB Greensfelder) for Majestic Care of Whitehall, LLC.

Companies: Majestic Care of Whitehall, LLC

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