STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is the primary agency charged by Congress with administering and enforcing Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. This case presents several questions about the enforcement of Title VII, including the governing standards for assessing claims of constructive discharge and claims of coworker retaliation under the statute. Although the Supreme Court has spoken on both issues, the district court here applied legal standards incompatible with the Court’s holdings. Because the EEOC has a strong interest in the proper interpretation of the federal anti-discrimination employment laws, it offers its views to the Court. See Fed. R. App. P. 29(a).

1. Does a plaintiff alleging constructive discharge need to show that her employer deliberately created working conditions so intolerable that they would cause a reasonable person to resign, when the Supreme Court has held that only an objective showing of sufficiently intolerable conditions is necessary?

2. To make out a claim of coworker retaliatory harassment under Title VII, is it enough to show that the harassment was “sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination,” as both the Supreme Court and this Court have held, or must the plaintiff also show that the harassment was “severe or pervasive”?

STATEMENT OF THE CASE

A. Statement of the Facts

Plaintiff Kristina Garcia works as a respiratory therapist at defendant Beaumont Health’s (“Beaumont”) Royal Oak Hospital. Garcia Depo. 53-54, R.72-2, Pg.ID#913. Respiratory therapists generally work in pairs and report to one of four supervisors, who in turn report to the Respiratory Director. Carroll Decl. ¶ 4, R.72-3, Pg.ID#1087; Garcia Depo. 59-60, R.72-2, Pg.ID#914. From January 2017 to the end of February 2019, Garcia also worked as a charge therapist, who serves as a lead on midnight shifts, weekends, and holidays when a supervisor is not on site. Carroll Decl. ¶ 5, R.72-3, Pg.ID#1087; Garcia Depo. 79-80, R.72-2, Pg.ID#919. As a charge therapist, Garcia earned an additional $1.25 or $1.50 per hour. Garcia Depo. 80-81, R.72-2, Pg.ID#919-20.

During the midnight shift starting July 29, 2018, Garcia was taking a break in a small storage room with two other respiratory therapists, Rachel Luca and Colleen Kaye. Garcia incident statement, R.72-5, Pg.ID#1176. According to Garcia, while the three were talking, Luca reached down Garcia’s shirt, lifted her breast out of her bra cup, and pinched her nipple. Id. A week later, Garcia complained about the incident to her supervisor, Antoinette Carroll. Garcia Depo. 121-22, 201, R.72-2, Pg.ID#930, 950. She did not request that Beaumont fire Luca but said she wanted the incident to be documented. Conv. trans. 5-8, 11-12, R.72-2, Pg.ID#1004-07, 1010-11. When Garcia said that if a man had touched her the way Luca did, she “would’ve hit him without thinking,” Carroll responded, “Well, he would have been out of the job. He would have been gone. Because that’s sexual harassment. And guess what? It’s sexual harassment on [Luca’s] part, too.” Conv. trans. 5, R.72-2, Pg.ID#1004. When Garcia speculated that Luca had grabbed her because she is bisexual, Carroll assured her that her sexual orientation did not justify the touching and “has nothing to do with anything.” Conv. trans. 10, R.72-2, Pg.ID#1009. Garcia requested that she not be paired in a unit with Luca in the future because she did not want to be alone with her; Carroll responded affirmatively, saying, “[W]e have to make sure that you both aren’t in the same area together.” Conv. trans. 12, R.72-2, Pg.ID#1011.

Garcia gave Carroll a written statement of the incident in which she again asked not to be paired with Luca in an intensive-care unit to avoid being alone with her. Garcia incident statement, R.72-5, Pg.ID#1176-77. Carroll then interviewed Luca and Kaye, both of whom denied the touching. Carroll Depo. 53, R.72-5, Pg.ID#1156; Carroll investigation notes, R.72-5, Pg.ID#1178. Kaye said the three were discussing their respective bras, but she did not see any touching. Carroll Depo. 53, R.72-5, Pg.ID#1156; Carroll investigation notes, R.72-5, Pg.ID#1178. Luca admitted having “accidentally” touched Garcia when she attempted to feel Garcia’s bra strap, but denied touching Garcia’s breast. Carroll Depo. at 53-54, R.72-5, Pg.ID#1156-57; Carroll investigation notes, R.72-5, Pg.ID#1178.

Based on these denials, Carroll determined that she could not substantiate Garcia’s allegations. Carroll Depo. at 56-57, R.72-5, Pg.ID#1157; Carroll investigation notes, R.72-5, Pg.ID#1178-79; Carroll Decl. ¶ 12, R.72-3, Pg.ID#1089. She nevertheless warned Luca to refrain from future inappropriate conversations, touching, or other behavior, and told both women not to speak with anyone about the incident. Carroll investigation notes, R.72-5, Pg.ID#1178-79; Carroll Decl. ¶¶ 13-14, R.72-3, Pg.ID#1089-90. Carroll also asked Garcia to report any further issues she had with Luca. Carroll Decl. ¶ 15, R.72-3, Pg.ID#1090.

Several weeks later, Garcia complained to Carroll and Jean Aphram, the Respiratory Care Director, that Luca was retaliating against her by telling coworkers that Garcia was lying about the incident. Garcia Depo. 237-39, R.72-2, Pg.ID#959; Aphram notes, R.72-6, Pg.ID#1239. Garcia subsequently emailed a letter to Human Resources and upper management elaborating on this complaint, stating that because of Luca’s retaliatory behavior, coworkers had stopped having friendly conversations with her and would leave the immediate area when they were alone with her. Garcia letter, R.72-2, Pg.ID#1047-49.

Within a few hours of receiving Garcia’s email, Beaumont initiated an investigation into the allegations. Dixon Decl. ¶¶ 11, 15, R.72-4, Pg.ID#1096-97; Brancaleone email, R.72-4, Pg.ID#1114-15; Rivera email, R.72-4, Pg.ID#1116. Because Garcia refused to discuss her complaint with the investigators unless her lawyer was present (which Beaumont’s rules did not permit), Beaumont conducted the investigation without further input from Garcia. Dixon Decl. ¶¶ 16-17, R.72-4, Pg.ID#1097; Ward letter, R.72-4, Pg.ID#1120. The investigation ultimately revealed that Luca had spoken to three coworkers about the incident despite Carroll’s directive to keep it confidential. Dixon Decl. ¶ 21, R.72-4, Pg.ID#1098. Beaumont put Luca on a Performance Improvement Plan and told her that continued failure to meet expectations would result in further discipline, “up to and including Termination of Employment.” Luca PIP, R.72-4, Pg.ID#1140-42.

After these incidents, Beaumont did not pair Garcia and Luca on any specific assignment, but twice scheduled Garcia to work as charge therapist while Luca was on duty. Carroll Decl. ¶ 16, R.72-3, Pg.ID#1090; Garcia Depo. 260-64, R.72-2, Pg.ID#964-65. The first such time, Garcia found another charge therapist to take her shift. Garcia worked the second such shift but had no interaction with Luca. Garcia Depo. 262-64, R.72-2, Pg.ID#965. Luca worked her last shift on November 30; Beaumont terminated her on December 11 for failure to appear for work.^{^[2]} Dixon Decl. ¶ 7, R.72-4, Pg.ID#1095.

At the end of February 2019, Garcia resigned as a charge therapist (though she retained her respiratory therapist position). According to Garcia, she did so because she was worried that Beaumont would rehire Luca and assign her to work when Garcia was acting as charge therapist, based on what she considered Beaumont’s deficient response to Garcia’s earlier requests that they not be scheduled together. Garcia Depo. 323-24, R.72-2, Pg.ID#1060; Garcia resignation, R.72-2, Pg.ID#1081.

Garcia subsequently filed this lawsuit, in which she alleged, inter alia, that Beaumont did not respond adequately to her harassment complaints because of her sex and sexual orientation — specifically, because she is a bisexual woman who was harassed by another woman — in violation of Title VII. First Amended Complaint (“FAC”) ¶¶ 25, 28, 31, 34, R.28, Pg.ID#154. She also alleged that Beaumont allowed Luca to retaliate against her for complaining (by telling coworkers that Garcia lied about the incident) when it failed to discipline Luca immediately and continued to schedule Garcia as a charge therapist on midnight shifts when Luca was working. FAC ¶¶ 13, 15, 17, 19-20, 23, 37, R.28, Pg.ID#152-53, 155.

B. District Court’s Decisions

The district court granted summary judgment to Beaumont on all claims against it. The court noted that this Court recognizes claims against an employer for coworker retaliation when a plaintiff can show that: (1) the retaliation is sufficiently severe to dissuade a reasonable employee from making or supporting a discrimination charge and (2) a supervisor or member of management has actual or constructive knowledge of the retaliation and fails to respond adequately. Order Granting Defendant’s Motion for Summary Judgment (“Order I”) at 24, R.86, Pg.ID#1536 (quoting Laster v. City of Kalamazoo, 746 F.3d 714, 732 (6th Cir. 2014)). Purporting to apply this standard, the court concluded that “[o]nly harassing conduct that is ‘severe or pervasive’ can produce a ‘constructive alteration in the terms or conditions of employment,’” thus meeting the “sufficiently severe” condition. Order I at 26, R.86, Pg.ID#1538 (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001)). Because Luca’s alleged conduct did not meet this standard, and because Garcia could not show that Beaumont “condoned, tolerated, or encouraged” the harassment or decided “not to take action to stop [it],” the court rejected Garcia’s retaliation claim. Order I at 26-28, R.86, Pg.ID#1538-40 (citation omitted) (alteration in original).

The court also rejected Garcia’s disparate-treatment claims based on sex and sexual orientation because it held that she could not show she was treated differently than a similarly situated comparator outside the protected group. Order I at 22-24, R.86, Pg.ID#1534-36. In addition, the district court held that Garcia had not shown that she suffered an adverse employment action. Garcia contended that Beaumont’s response to Luca’s harassment — waiting two months to discipline Luca and continuing to schedule her charge-therapist shifts when Luca would be working — was so insufficient as to force her to resign from her charge-therapist position, constituting a constructive discharge. But the court rejected this assertion because, in its view, “No reasonable juror could find that Beaumont deliberately created an intolerable working condition for Garcia by scheduling her twice as a charge therapist during Luca’s shift.” Order I at 21, R.86, Pg.ID#1533.

In a subsequent order, the district court sua sponte dismissed Garcia’s state-law claims against Luca, who had not appeared in the case, and denied Garcia’s motion for a default judgment against her. Order Denying Plaintiff’s Revised Motion for Default Judgment Against Defendant Luca (“Order II”), R.101, Pg.ID#1666-70. The court explained that in its earlier Order it had determined “that Luca’s conduct was neither severe nor pervasive to constitute actionable retaliatory conduct,” which precluded Garcia’s claims against Luca as well. Order II at 4, R.101, at Pg.ID#1669 (summarizing its previous order as holding that “Title VII … protects individuals not from all retaliation but that which is sufficiently severe or pervasive”).

ARGUMENT

I. The District Court Erred by Requiring Garcia to Support Her Constructive-Discharge Claim with Evidence that Beaumont Deliberately Intended to Create an Intolerable Working Environment.

The district court erroneously applied a superseded legal standard to Garcia’s constructive discharge claim. The court held that a plaintiff alleging constructive discharge must show that “the employer deliberately created intolerable working conditions … with the intention of forcing the employee to quit.” Order I at 20-21, R.86, Pg.ID#1532-33 (quoting Logan v. Denny’s, Inc., 259 F.3d 558, 568-69 (6th Cir. 2001)); see id. at 21, R.86, Pg.ID#1533 (“No reasonable juror could find that Beaumont deliberately created an intolerable working condition for Garcia by scheduling her twice as a charge therapist during Luca’s shift.”). But, fifteen years after Logan was decided, the Supreme Court clarified that Title VII plaintiffs alleging constructive discharge are not required to demonstrate deliberateness. Green v. Brennan, 578 U.S. 547, 560 (2016). Instead, a plaintiff claiming constructive discharge need only make an objective showing of “circumstances of discrimination so intolerable that a reasonable person would resign.” Id. Once she makes that showing, “[w]e do not also require [the] employee to come forward with proof — proof that would often be difficult to allege plausibly — that not only was the discrimination so bad that [s]he had to quit, but also that h[er] quitting was h[er] employer’s plan all along.” Id.; see EEOC v. Consol Energy Inc., 860 F.3d 131, 144 (4th Cir. 2017) (holding that Green eliminated the subjective-intent requirement for constructive discharge).

This Court recently noted that the potential impact of Green on the standard for constructive discharge claims “is a live issue,” but declined to decide the question. Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 816 (6th Cir. 2020). In Tchankpa, the plaintiff brought a claim of constructive discharge and argued that, under Green, the district court erred in requiring a showing of deliberateness. The court conceded that the plaintiff “may be right that Green controls and overrules” contrary precedent from this Court requiring employer deliberateness. Id. at 815. Quoting Green’s conclusion that an employee need not prove the employer’s deliberate intent, id. at 816 (quoting Green, 578 U.S. at 560), this Court observed that “the language in Green appears hostile to the subjective intent requirement for constructive discharge claims” and, if controlling, would “trump[] our precedent.” Id.; see id. (noting that the Fourth Circuit had reached that result in Consol Energy). But this Court also noted that Green arose in the context of a statute of limitations issue and indicated its concern that the language eschewing a deliberateness requirement might be dicta. Id. at 816-17.

Respectfully, the elimination of a deliberateness requirement was central to Green’s holding, rather than dicta. Green presented the question of when the forty-five-day period during which a federal employee alleging a constructive discharge must initiate contact with an EEO counselor begins to run. Green, 578 U.S. at 549-50 (citing 29 C.F.R. § 1614.105(a)(1)). The Court held that in all such cases, the limitations period runs from the employee’s date of resignation, rather than the date of the employer’s last discriminatory act. Id. at 550. Justice Alito suggested, in concurrence, that two types of constructive discharge exist — one involving employer deliberateness, the other not — and that the limitations period should begin tolling at resignation only for the former. Id. at 569-74 (Alito, J., concurring). But the majority rejected this understanding of constructive discharge and explained, to the contrary, that a single type of constructive-discharge claim exists, one that does not require deliberateness. Id. at 559-60 (majority opinion). For all constructive-discharge claims, the Court held, the limitations period begins when the employee resigns. Id. at 560 (explaining that employees alleging constructive discharge are never required to show that their “quitting was [their] employer’s plan all along”).

The lack of a deliberateness requirement was thus central to the Court’s conception of constructive discharge and essential to its holding. Indeed, the majority rejected Justice Alito’s contrary conception, which turned in part on employer deliberateness, as “novel and contrary to the constructive discharge doctrine.” Id. at 559-60; see also Consol Energy, 860 F.3d at 144 (explaining that “‘deliberateness’ is no longer a component of a constructive discharge claim” because the Supreme Court “revisited the standard for constructive discharge” in Green “and expressly rejected a ‘deliberateness’ or intent requirement”).

In reaching its blanket holding that the limitations period begins to run from the date of resignation in all constructive discharge cases, the Court needed to reject the suggestion that it apply a separate rule for the subset of constructive discharge cases involving employer deliberateness. Green, 578 U.S. at 559-60. It based this rejection on its conclusion that employer deliberateness is not a necessary component of a constructive discharge claim. Id. Thus, that portion of the holding is essential to the case’s outcome; its binding nature cannot be rejected as dicta. See Freed v. Thomas, 976 F.3d 729, 738 (6th Cir. 2020) (“A ‘holding’ is a court’s determination of a matter of law pivotal to its decision.” (cleaned up and citation omitted)).

Furthermore, even if the statement were not part of Green’s holding, this Court is “obligated to follow Supreme Court dicta, particularly when there is no substantial reason for disregarding it, such as age or subsequent statements undermining its rationale.” Tchankpa, 951 F.3d at 816 n.2 (quoting United States v. Khami, 362 F. App’x 501, 508 (6th Cir. 2010)). The language in Green presents no such “substantial reason” that would justify curbing its reach.

II. The District Court Erroneously Conflated the Standard for Coworker Retaliatory Harassment with the Standard for a Hostile Work Environment.

The district court also applied the wrong standard to Garcia’s coworker-retaliatory-harassment claim. Title VII’s antiretaliation provision prohibits “discriminat[ion] against any individual … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The provision protects employees against, inter alia, retaliation for complaining to management about harassment based on a protected category. Laster v. City of Kalamazoo, 746 F.3d 714, 729-30 (6th Cir. 2014). As the Supreme Court and this Court have held, the provision prohibits retaliatory conduct that is “sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 732; see also Burlington N.& Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 68 (2006).

The Supreme Court has established beyond doubt that this “severe enough to dissuade a reasonable worker” standard for actionable retaliatory conduct is broader than the standard for discriminatory conduct more generally. Burlington N., 548 U.S. at 64. This is because a more restricted scope of protection — one that applied only to discriminatory actions affecting the terms and conditions of employment — “would not deter the many forms that effective retaliation can take. Hence, such a limited construction would fail to fully achieve the anti-retaliation provision’s ‘primary purpose,’ namely, ‘[m]aintaining unfettered access to statutory remedial mechanisms.’” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997)). “Thus,” the Court concluded, “purpose reinforces what language already indicates, namely, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id.

Applying Burlington Northern’s teaching, this Court has explained that “the tests for harassment and retaliation are not coterminous”; “the scope of Title VII’s retaliation provision is broader than that of Title VII’s discrimination provision.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 345, 347 (6th Cir. 2008); see also Laster, 746 F.3d at 731 (noting that the “[p]laintiff’s burden of establishing a materially adverse employment action is ‘less onerous in the retaliation context than in the anti-discrimination context’” (quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595-96 (6th Cir. 2007))); see also EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016), 2016 WL 4688886, at *20 (“Retaliation Guidance”) (“The threshold for establishing retaliatory harassment is different than for discriminatory hostile work environment. Retaliatory harassing conduct can be challenged under the Burlington Northern standard even if it is not severe or pervasive enough to alter the terms and conditions of employment. If the conduct would be sufficiently material to deter protected activity in the given context, even if it were insufficiently severe or pervasive to create a hostile work environment, there would be actionable retaliation.”).^{^[3]}

Under the terms of Title VII’s antiretaliation provision, an employer may be liable for retaliation from coworkers that management knows about but unreasonably fails to prevent. Hawkins, 517 F.3d at 347. This Court has explicitly applied the Burlington Northern retaliation standard to these coworker-retaliation claims: liability for a coworker’s retaliatory harassment attaches “if (1) the coworker’s retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination, (2) supervisors or members of management have actual or constructive knowledge of the coworker’s retaliatory behavior, and (3) supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff’s complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.” Id. (citing Burlington N., 548 U.S. at 68; Blankenship v. Parke Care Ctrs., Inc., 123 F.3d 868, 872-73 (6th Cir. 1997)); cf. Knox v. Indiana, 93 F.3d 1327, 1335-36 (7th Cir. 1996) (holding that “fellow worker harassment and vicious gossip” that was causally linked to the plaintiff’s harassment complaint and in which her employer acquiesced made out a valid retaliation claim under Title VII).

Addressing Garcia’s retaliatory-coworker-harassment claim, the district court improperly conflated the standards for retaliatory harassment — a form of retaliation — and discriminatory harassment, contrary to the express instructions of Burlington Northern, Hawkins, and Laster. The court began its discussion with a correct recitation of Burlington Northern’s “sufficiently severe so as to dissuade a reasonable worker” standard. Order I at 24-25, R.86, Pg.ID#1536-37. But then it shifted course, stating that actionable retaliatory harassment must “produce a constructive alteration in the terms or conditions of employment,” and that “[o]nly harassing conduct that is severe or pervasive” is sufficient to meet that standard. Order I at 26, R.86, Pg.ID#1538 (quoting Breeden, 532 U.S. at 270).

This was error. The quoted language from Breeden (like that of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998), on which it relied) refers to the standard for actionable discriminatory harassment, not retaliation. The district court thus improperly applied the standard governing discrimination claims rather than the “broader,” “less onerous” standard for claims of retaliation. Hawkins, 517 F.3d at 345, 347; Laster, 746 F.3d at 731.

The court then compounded its error in a subsequent order, holding that Luca’s retaliatory conduct “was neither severe nor pervasive to constitute actionable retaliatory conduct,” and quoting its previous order for the proposition that “Title VII … protects individuals not from all retaliation but that which is sufficiently severe or pervasive.” Order II at 4, R.100, Pg.ID#1669. Again, this misstated the law, conflating the “severe or pervasive” standard used to assess claims of workplace harassment with the broader “sufficiently severe so as to dissuade a reasonable worker” standard applied to retaliation claims under Title VII. Burlington N., 548 U.S. at 68; Hawkins, 517 F.3d at 345, 347; Laster, 746 F.3d at 731-32.

It is true that, in a fairly recent unpublished decision, a panel of this Court repeated the pre-Burlington Northern “severe or pervasive” language when discussing the plaintiff’s retaliatory harassment claim. Frazier v. Richland Pub. Health, 685 F. App’x 443, 450 (6th Cir. 2017) (citing Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000)). But in that same opinion, this Court also referred to Burlington Northern’s “might have dissuaded a reasonable worker” standard, id. at 450-51, and it ultimately applied that standard to the facts of the case, id. at 454-55 (“[A] genuine issue of fact remained regarding whether the reassignment of Frazier’s duties that occurred here might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”). In any event, as an unpublished decision, Frazier is not binding on the Court. In re Blasingame, 986 F.3d 633, 637 n.2 (6th Cir. 2021).

CONCLUSION

For the foregoing reasons, the judgment of the district court should be vacated and the case remanded for further proceedings.

Respectfully submitted,

CHRISTOPHER LAGE

Deputy General Counsel

JENNIfer s. goldstein

Associate General Counsel

elizabeth e. theran

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney, Appellate Litigation Services

Office of General Counsel

Equal Employment Opportunity Commission

131 M St. NE, Fifth Floor

Washington, DC 20507

(202) 921-2549

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limit of Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B)(i) because it contains 3,946 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f). This brief also complies with the typeface and type-style requirements of Federal Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word for Office 365 ProPlus in Times New Roman 14-point font, a proportionally spaced typeface.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

[1] We take no position with respect to any other issue presented in this appeal.

[2] According to Garcia, on three additional days during this period between Luca’s final shift and her termination, Garcia was scheduled as charge therapist when Luca initially had a shift scheduled. Luca was removed from the schedule for all three shifts. Garcia timeline at 2, R.72-2, Pg.ID#998.

[3] As this Court has explained, even though the Commission’s guidance is not binding authority, it nevertheless “constitute[s] a body of experience and informed judgment to which courts and litigants” may properly turn. White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 798 (6th Cir. 2004) (en banc) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)), aff’d, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).