Retaliation claim under Title VII; Whether defendant-former employer offered non-pretextual reasons for terminating plaintiff; Whether her surreptitious recordings of work events motivated her termination; Work attendance & tardiness; Belief that plaintiff did not want to return to work

The court affirmed the district court’s ruling that defendant-Majestic was entitled to summary judgment on plaintiff-Bashaw’s Title VII retaliation claim where Majestic provided three independent, non-pretextual reasons for firing her. Bashaw worked as the Director of Social Services for Majestic. During her four months on the job, she had several concerns about patient care and staff performance. She eventually told Majestic’s HR Representative of her concerns, including allegations that Majestic’s Executive Director and Bashaw’s manager (B) made culturally insensitive remarks and sexually harassed employees. Majestic fired her after it was determined that her allegations were unfounded. Bashaw sued under Title VII and Ohio law, claiming that she was fired in retaliation for reporting B’s behavior and expressing concerns about resident care. On appeal, the court considered the reasons Majestic offered to support its termination decision, including that Bashaw (1) had secretly recorded work meetings and conversations; (2) was repeatedly late for work and had been absent from work without prior authorization for eight and one-half half days; and (3) had told the HR Vice President (N) that “‘she did not want to return to work.’” The court explained that only one legitimate reason was needed. It rejected her claim that her recording activity was only a pretext to discharge her since Majestic did not have an official policy regarding recording meetings or conversations. It cited several sister circuits’ cases that have held that “the lack of an official policy or law prohibiting the behavior does not itself demonstrate pretext on” an employer’s part. “Bashaw’s surreptitious recording not only undermined Majestic Care’s trust in her, but Majestic Care reasonably believed they increased its risk of legal liability. An employer may terminate an employee for creating legal risk for the company.” The court also rejected her argument that Majestic’s reliance on her attendance and tardiness issues was a pretext where other similarly situated employees were not fired. The court found that Bashaw did not offer sufficient evidence regarding the one alleged comparator to determine whether her situation was of “‘comparable seriousness’” to Bashaw’s conduct. She also claimed that there was no evidence she said that she did not want to return to work. But there was evidence that management was told that she was looking for other jobs, and N testified that Bashaw conveyed to her that “‘[s]he didn’t want to return to the building.’” The court held that N “reasonably formed an honest belief that Bashaw no longer wished to work at Majestic Care.”