Lauren Palmer v. Rebecca Caccioppo, et al
OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 206. Eugene E. Siler , Jr., Circuit Judge; Eric L. Clay, Circuit Judge, separate dissenting opinion and Julia Smith Gibbons, Authoring Judge.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0427n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LAUREN JUSTINE PALMER,
REBECCA CACIOPPO, et al.,
Jun 28, 2011
LEONARD GREEN, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
Before: SILER, CLAY, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Petitioner Lauren Palmer appeals a district
court order granting summary judgment to respondents Rebecca Cacioppo, Kathy Hooper, and the
Akron Board of Education (the “Board”). She contends that the district court erred in granting
summary judgment on the following claims: (1) denial of her right to medical leave under the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; (2) unreasonable search and seizure
in violation of the Fourth Amendment, pursuant to 42 U.S.C. § 1983; and (3) quid pro quo sexual
harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e
et seq. For the reasons that follow, we affirm the district court.
Petitioner Lauren Palmer is a former employee of the Board, where she worked for thirteen
years, primarily as a secretary at Glover Elementary School (“Glover”), until her termination on
Palmer v. Cacioppo
December 12, 2006. Respondents Cacioppo and Hooper were likewise employed by the public
school system, with Cacioppo serving as Glover’s principal and Hooper working as the coordinator
of support staff for the Board. Palmer reported to Glover in mid-August 2006, approximately two
weeks before the start of the school year, when she and Cacioppo were the only employees required
to be on the school premises. The events giving rise to this litigation stem, in part, from Palmer’s
interactions with Cacioppo in the weeks before school began.
On one occasion during this time period, Cacioppo invited Palmer to join her at Strickland’s,
a local ice cream shop. Although the ensuing circumstances are disputed by the parties, Palmer
claims that Cacioppo requested that they sit in a secluded area and made sexual advances towards
Palmer, including licking an ice cream cone in a sexually explicit manner and suggesting that they
engage in sexual acts. After rejecting Cacioppo’s advances, Palmer alleges that she was repeatedly
harassed by Cacioppo, who denigrated her work performance in emails to other people, including
Hooper, and prevented her from timely completing kindergarten student enrollment. Palmer did not
file an official complaint with the Akron School District concerning the alleged sexual harassment
by Cacioppo, nor did she immediately report the incident to anyone. Palmer estimates, however, that
she later informed several people of the harassment sometime in September, including her general
practitioner, Dr. Ann DiFrangia; her attorney; her union representative; and Dr. Connie Hathorn, the
Executive Director of Human Resources for Akron Public Schools. Neither Palmer nor Hathorn
pursued the matter.1
Palmer attributes her failure to file a formal harassment complaint in this matter to her
distrust of the Board, who did not pursue Palmer’s sexual harassment claim in a prior, unrelated
Palmer v. Cacioppo
Shortly thereafter, Palmer missed numerous days of work; she was absent from September
1 to November 10, 2006. The parties contest whether some of these absences were authorized, in
particular Palmer’s trip to Jamaica from September 5–8. When Palmer failed to report to work on
September 5, Cacioppo sought the assistance of Sharon Null, who also worked as a secretary for the
public schools, to aid with student enrollment at Glover. Null reported to Hooper that “no one ha[d]
been enrolled” in Glover’s enrollment system and that “attendance ha[d] not been entered thus far
this school year,” apparently implying that Palmer had neglected her job duties.
Though the exact dates are not clear from the record, the respondents learned at some time
around the start of the school year that Palmer had pled guilty in municipal court on August 9, 2006,
to misdemeanor possession of marijuana and, in addition to being subject to a fine and a suspended
driver’s license, was required to write an essay concerning the dangers of marijuana. The
respondents further learned that a bench warrant had issued for Palmer on August 26, 2006, for
failure to timely complete the essay; this warrant was later recalled when Palmer submitted her essay
within an extended deadline of September 11, 2006. Hooper contends that, sometime between
August 26 and September 11, Palmer falsely told both Hooper and Hathorn that she had satisfied her
sentence when, in fact, she had not.
On September 22, 2006, the Board held a due process hearing, as required by Cleveland
Board of Education v. Loudermill, to address Palmer’s continued absence from work, her
matter. In the prior incident, in which an unidentified male caller left a message on her husband’s
work phone claiming to have engaged in sexual activity with Palmer, the Board determined that it
could not positively identify the caller. Although the Board informed Palmer that she could file a
report with the local police department, she did not do so.
Palmer v. Cacioppo
unapproved absences on September 5–8, the misdemeanor drug conviction, and Palmer’s related
misrepresentations to Hooper and Hathorn concerning the satisfaction of her sentence. 470 U.S. 532,
546 (1985) (providing public employees a constitutional right to pre-termination due process). Both
Hooper and Hathorn attended the Loudermill hearing, as did Palmer and her union representatives.
At the hearing, the Board characterized Palmer’s conduct as a violation of the employee attendance
policy; insubordination by virtue of making false statements to administrators; and, with regard to
the misdemeanor conviction, conduct unbecoming an employee of the Board. The parties then
entered into a “last chance agreement” in which Palmer agreed to: (1) take an unpaid absence for
September 8, 2006, in lieu of a one-day suspension without pay; (2) provide updated physician’s
statements to Hooper regarding her absences starting on September 18; (3) submit to random drug
testing for one year; (4) participate in drug counseling at Tri-County Employee Assistance Program
(“EAP”); and (5) be reassigned to another school pursuant to her request. On September 26, Palmer
received a letter memorializing the terms of the “last chance agreement” and directing her to respond
if she did “not agree with the statements made in [the] conference summary letter.” Palmer neither
responded to the letter nor informed the Board that the suspension of her driver’s license would
prevent her from attending drug counseling or appearing for random drug testing.
On October 13, Palmer entered Glover with the stated purpose of attending a PTA meeting,2
at which time a confrontation between Palmer and Cacioppo ensued. The parties dispute the nature
The Board states that, as discussed at her Loudermill hearing, Palmer was no longer
permitted to enter Glover. Palmer disputes this interpretation, and we find no evidence in the record
supporting such a prohibition.
Palmer v. Cacioppo
of this confrontation; Palmer alleges that Cacioppo took her into Cacioppo’s office, prevented her
from leaving, and threatened her with undisclosed consequences if she pursued a sexual harassment
claim. Cacioppo states that she instructed Palmer to leave the premises and that Palmer refused to
do so, instead retreating to a different part of the building. Both versions apparently involved yelling
and foul language. Thereafter, building security was contacted, and Palmer’s car was towed.
Following Palmer’s reassignment to a new school, Hooper informed her that she was required
to submit to drug testing on a date of her choosing before returning to work. Palmer selected
November 10, 2006; submitted to testing on this date; and reported to work on November 13, but
missed a scheduled drug counseling session at Tri-County EAP. On November 16, Hooper received
a call from the Community Health Center stating that Palmer had tested positive for opiates and
marijuana; she then sent a letter to Palmer apprising her that a second Loudermill hearing would be
convened on November 30 to discuss Palmer’s drug test and related substance abuse,
insubordination, and contract violations. Although her union representatives were present, Palmer
did not attend the second Loudermill hearing. At a meeting on December 12, the Board accepted
the recommendation of Hooper and Hathorn to terminate Palmer’s employment effective December
We review de novo a district court’s grant of summary judgment. Hamilton v. Starcom
Mediavest Group, Inc., 522 F.3d 623, 627 (6th Cir. 2008). “Summary judgment is proper where no
genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The moving party bears the initial burden of production. Celotex Corp. v.
Palmer v. Cacioppo
Catrett, 477 U.S. 317, 323 (1986). “After the moving party has met its burden, the burden shifts to
the nonmoving party, who must present some ‘specific facts showing that there is a genuine issue
for trial.’” Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 200 (6th Cir. 2010) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[I]f the nonmoving party fails to make a
sufficient showing on an essential element of the case with respect to which the nonmovant has the
burden, the moving party is entitled to summary judgment as a matter of law.” Thompson v. Ashe,
250 F.3d 399, 405 (6th Cir. 2001).
In evaluating a motion for summary judgment, the district court must construe all reasonable
inferences in favor of the nonmoving party. Hamilton, 522 F.3d at 627 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The central issue is “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
Palmer claims that Hooper unlawfully interfered with her rights under the FMLA, 29 U.S.C.
§ 2601 et seq., by authorizing her medical leave and subsequently recommending her termination,
in part for “excessive absenteeism,” based upon these absences. The district court granted summary
judgment to the respondents on the grounds that there was no evidence in the record that Palmer was
denied FMLA-qualified leave and that Palmer’s termination did not stem from any approved
absences, but rather was due to her repeated failure to submit timely absence forms. We agree.
The FMLA entitles eligible employees to twelve weeks of unpaid leave within a twelvemonth period when, among other qualifying reasons, the employee suffers from “a serious health
Palmer v. Cacioppo
condition that makes the employee unable to perform the functions of the position.” 29 U.S.C. §
2612(a)(1)(D); see also 29 U.S.C. § 2611(11) (defining a “serious health condition” as “an illness,
injury, impairment, or physical or mental condition” that requires either inpatient care or “continuing
treatment by a health care provider”). Enacted to enhance job security for employees suffering from
serious health conditions, the FMLA “renders it ‘unlawful for any employer to interfere with,
restrain, or deny the exercise of or the attempt to exercise any right’ that it affords.” Brenneman v.
MedCentral Health Sys., 366 F.3d 412, 422 (6th Cir. 2004) (quoting 29 U.S.C. § 2615(a)(1)); see
also 29 U.S.C. § 2601(b). The implementing regulations further prohibit “an employer from
discriminating or retaliating against an employee . . . for having exercised or attempted to exercise
FMLA rights.” 29 C.F.R. § 825.220(c). In particular, “employers cannot use the taking of FMLA
leave as a negative factor in employment actions, such as . . . disciplinary actions.” Id. “Employers
who violate § 2615 are ‘liable to any eligible employee affected’ for damages and ‘for such equitable
relief as may be appropriate.’” Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003)
(quoting 29 U.S.C. § 2617(a)(1)).
To prevail on a claim alleging unlawful interference with FMLA rights, the employee must
establish that “(1) [s]he is an ‘[e]ligible employee,’ 29 U.S.C. § 2611(2); (2) the defendant is an
‘[e]mployer,’ 29 U.S.C. § 2611(4); (3) [she] was entitled to leave under the FMLA, 29 U.S.C. §
2612(a)(i); (4) [she] gave the employer notice of [her] intention to take leave, 29 U.S.C. §
2612(e)(1); and (5) the employer denied [her] FMLA benefits to which s[he] was entitled.” Cavin,
346 F.3d at 719. If leave is foreseeable, “[a]n employee must provide the employer at least 30 days
advance notice before FMLA leave is to begin.” 29 C.F.R. § 825.302(a). When leave is not
Palmer v. Cacioppo
foreseeable, “an employee must provide notice to the employer as soon as practicable” and “must
comply with the employer’s usual and customary notice and procedural requirements for requesting
leave, absent unusual circumstances.” 29 C.F.R. § 825.303(a), (c). If, however, no unusual
circumstances obtain, and the employee has not complied with the employer’s customary procedures
for requesting leave, “FMLA-protected leave may be delayed or denied.” 29 C.F.R. § 825.303(c).
Here, Palmer has not alleged that any unusual circumstances hampered her ability to comply with
the Board’s customary leave procedures.
Based upon these requirements, Palmer has not stated a colorable claim for unlawful
interference with her FMLA rights. Aside from the conclusory assertions in her absence forms and
deposition testimony that she was “ill” or was “having medical problems,” the record is devoid of
evidence demonstrating that Palmer suffered from a serious health condition, a threshold requirement
under the FMLA. Palmer does not press this point on appeal. Rather, she argues that “Hooper
signed and approved each of the days as valid medical leave.” This argument, however, ignores the
fact that not all “approved” medical leave is FMLA-qualified leave; pursuant to 29 U.S.C. §
2612(a)(1)(D), an eligible employee seeking FMLA leave must suffer from “a serious health
condition that makes the employee unable to perform the functions of [her job].” Although Palmer
disputes her termination for “authorized medical leave,” she does not allege on appeal that she
suffered from a serious health condition and, accordingly, has failed to demonstrate entitlement to
Nor has Palmer demonstrated that the Board denied any FMLA benefit that she was owed.
Indeed, the record reflects that Palmer received compensation and benefits for her medical absences,
Palmer v. Cacioppo
notwithstanding her untimely absence forms. Instead, Palmer argues that Hooper approved her
various absences and then recommended her termination for excessive absenteeism, thereby
interfering with her exercise of FMLA rights. This contention is without merit. As reflected in her
discharge letter on December 12, 2006, Palmer was terminated for a variety of infractions, including
excessive absenteeism or tardiness, absence without leave, misconduct toward other city employees,
insubordination, and conduct unbecoming a public employee. In her deposition, Hooper explained
that the charge of excessive absenteeism pertained to Palmer’s repeated failure to file her absence
forms in a timely manner and to her unauthorized absence on September 5 and that Palmer’s
termination was not based upon her medical absences. The termination letter likewise supports this
interpretation; it states that “Mrs. Palmer was absent from September 1 through November 10, 2006
and did not file absence forms in a timely manner.” In sum, Palmer has not demonstrated that she
was unlawfully denied any FMLA benefits, nor has she shown that she was terminated for taking
medical leave. Accordingly, we affirm the district court’s grant of summary judgment with respect
to Palmer’s FMLA claim.
Palmer next argues under 42 U.S.C. § 1983 that Hooper violated her Fourth Amendment
rights against unreasonable search and seizure by demanding that she submit to drug testing as a
condition of continued employment.
The district court granted summary judgment to the
respondents on the grounds that Palmer voluntarily entered into the “last chance agreement” in which
she agreed to undergo random drug testing for one year. It further noted that, given Palmer’s
conviction for misdemeanor marijuana possession, the drug testing requirement served as a
Palmer v. Cacioppo
reasonable mechanism for enforcing the Board’s policy prohibiting substance abuse by school
employees while at work.
The Fourth Amendment safeguards the privacy of individuals against unwarranted
governmental intrusions by providing, in pertinent part, that “the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. “In assessing whether the right against unreasonable searches and
seizures has been violated, the court must consider whether the action is ‘attributable to the
government,’ and amounts to a ‘search’ or ‘seizure’ for Fourth Amendment purposes.” Relford v.
Lexington-Fayette Urban Cnty. Gov’t, 390 F.3d 452, 457 (6th Cir. 2004) (quoting Skinner v. Ry.
Labor Exec. Ass’n, 489 U.S. 602, 614 (1989)). Here, the drug test at issue is undisputedly
attributable to the government, as it was ordered by the Board pursuant to Palmer’s “last chance
It “is now well-settled that drug testing which utilizes urinalysis is a ‘search’ that falls within
the ambit of the Fourth Amendment.” Knox Cnty. Educ. Ass’n v. Knox Cnty. Bd. of Educ., 158 F.3d
361, 371 (6th Cir. 1998); see also Int’l Union v. Winters, 385 F.3d 1003, 1007 (6th Cir. 2004)
(noting that “[i]t is beyond dispute that government ordered collection and testing of urine samples
effects a search within the meaning of the Fourth Amendment as such tests intrude upon reasonable
expectations of privacy that society has long recognized as reasonable”). Because drug testing
constitutes a search under the Fourth Amendment, “we must therefore review the [Board’s] policy
for reasonableness, ‘which is the touchstone of the constitutionality of a government search.’”
Winters, 385 F.3d at 1007 (quoting Bd. of Educ. v. Earls, 536 U.S. 822, 828 (2002)). To determine
Palmer v. Cacioppo
whether the drug testing requirement contained in the “last chance agreement” was reasonable, we
balance the public interest in this testing against Palmer’s privacy expectations. Knox Cnty. Educ.
Ass’n, 158 F.3d at 373; see also Chandler v. Miller, 520 U.S. 305, 314 (1997); Nat’l Treasury Emp.
Union v. Von Raab, 489 U.S. 656, 665–66 (1989).
Palmer contends that, despite agreeing to submit to random drug testing for one year, her
consent was in fact “the product of coercion,” apparently because she would have been terminated
if she refused the conditions of employment contemplated by the “last chance agreement.” This
argument is without merit. Indeed, we have upheld policies permitting both suspicion-less and
suspicion-based drug testing of employees who work in the highly-regulated field of public school
employment, irrespective of consent. In Knox County Education Association, this circuit had
occasion to evaluate the constitutionality of the Knox County Board of Education’s suspicion-less
and suspicion-based drug testing policies of school employees against a facial Fourth Amendment
challenge. 158 F.3d at 384–85. We observed that employee consent to the testing policy at issue
was not required; rather, “the privacy interest for the employees not to be tested [was] significantly
diminished by the level of regulation of their jobs and by the nature of the work itself.” Id. at 384.
As to the constitutionality of suspicion-based testing, we concluded that the policy comported with
the Fourth Amendment’s reasonableness requirement because it was “clearly based upon a finding
of individualized suspicion.” Id. at 385.
Knox County Education Association is controlling here, and this case presents an even
stronger case for finding no Fourth Amendment violation. The Board’s one-year random drug
testing requirement was reasonable, particularly in light of Palmer’s conviction for misdemeanor
Palmer v. Cacioppo
marijuana possession. The record reflects that the Board enacted various administrative regulations
restricting substance abuse among school employees while on duty. The drug-free workplace policy
states that “[a]ll employees as a condition of employment are required to abide by the Board policy
. . . related to a drug-free workplace and to submit to the substance abuse prevention and testing
program.” The Board’s substance abuse policy further provides that “[b]eing under the influence
of . . . drugs while on duty, on school property, or at a school related activity/event is not
acceptable.” Moreover, “reporting to work under the influence of . . . drugs . . . will result in
appropriate corrective or disciplinary action as determined by the Board, up to and including
termination.” Finally, although it offered an employee assistance program, the Board stated that it
“cannot guarantee that the staff member’s use of illegal drugs . . . will not adversely impact the staff
member’s employment status through disciplinary measures.”
Given Palmer’s marijuana conviction, the Board’s concern that she might report to work
under the influence was well-founded. See, e.g., Knox Cnty. Educ. Ass’n, 158 F.3d at 384–85
(upholding a suspicion-based drug testing policy that, in pertinent part, permitted drug testing of
school employees who violated “criminal drug law statutes involving the use of illegal drugs”
because “the testing is clearly based upon a finding of individualized suspicion”). And, like the
employees in Knox County Education Association, Palmer’s privacy interest was significantly
diminished by the nature of her job. Id. at 384. Moreover, her consent to the agreement also served
to reduce her privacy interest further.3 See Norris v. Premier Integrity Solutions, Inc., — F.3d —,
In her brief, Palmer argues that her consent was involuntary because it was obtained upon
threat of termination or, in the alternative, that she withdrew consent by “refusing” to submit to the
Palmer v. Cacioppo
No. 09-6252, 2011 WL 1261188, at *2 (6th Cir. 2011) (noting that defendant’s expectations of
privacy were diminished by his consent “to random drug testing as a condition of his pretrial
Balancing the public interest in Palmer’s drug testing against her expectation of privacy, and
construing all reasonable inferences in Palmer’s favor, we conclude that the one-year random drug
testing requirement served as a reasonable means of ensuring her compliance with the Board’s drugfree workplace policy and did not violate her Fourth Amendment rights. Accordingly, we affirm the
district court’s grant of summary judgment.
In her final claim, Palmer argues that her refusal to consent to Cacioppo’s sexual advances
resulted in Cacioppo’s “hound[ing] her on a daily bases [sic] about her work” and eventually caused
The district court granted summary judgment to the respondents, finding
“absolutely no evidence of a connection between the alleged harassment and [Palmer’s]
termination,” and we agree.
drug testing. The record, however, does not support these arguments. In her deposition, when asked
whether she had agreed to submit to random drug testing for one year at the September 22 hearing,
Palmer repeatedly answered, “yes.” By correspondence dated September 26, the Board reiterated
the terms of the “last chance agreement” and invited Palmer to reply with any written objections by
October 3 if she did “not agree with the statements made in this . . . letter,” including the drug testing
requirement. Yet, Palmer did not file any objections. Furthermore, Palmer’s deposition testimony
makes clear that she did not “refuse” to submit to drug testing. Although Hooper asked her “at least
three times” to take a drug test, Palmer testified that she did not do so on the first two occasions
because her driver’s license was suspended, and she did not have transportation.
Palmer v. Cacioppo
Title VII of the Civil Rights Act of 1964 prohibits an employer from “discriminat[ing]
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Under Title VII,
an employer may not engage in quid pro quo sexual harassment, “which occurs when an employee’s
submission to unwanted sexual advances becomes either a condition for the receipt of job benefits,
or the means to avoid an adverse employment action.” Howington v. Quality Rest. Concepts, LLC,
298 F. App’x 436, 440 (6th Cir. 2008). To prevail on a claim alleging quid pro quo sexual
harassment, an employee must demonstrate:
1) that the employee was a member of a protected class; 2) that the
employee was subjected to unwelcomed sexual harassment in the
form of sexual advances or requests for sexual favors; 3) that the
harassment complained of was on the basis of sex; 4) . . . that the
employee’s refusal to submit to the supervisor’s sexual demands
resulted in a tangible job detriment; and 5) the existence of
respondeat superior liability.
Id. at 441.
Although Palmer contends that Cacioppo “staged” her termination based upon Palmer’s
“refusal to have sex with her,” she has not presented any evidence suggesting a causal relationship
between the alleged sexual harassment and her discharge months later.4 Indeed, Palmer’s notice of
The dissent suggests that the defendants have supported their motion with insufficient
evidence. This reasoning misunderstands the defendants’s burden. Under applicable summary
judgment analysis, defendants may simply point to plaintiff’s lack of evidence to support a necessary
element of her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (stating that “the burden
on the moving party may be discharged by ‘showing’—that is, point out to the district court—that
there is an absence of evidence to support the nonmoving party’s case”). If the plaintiff has failed
to adduce such evidence, summary judgment is properly granted. Thompson, 250 F.3d at 405.
Palmer v. Cacioppo
termination makes perfectly clear that her discharge was premised upon numerous infractions,
including her unauthorized absence on September 5; her repeated submission of untimely absence
forms; and her failure to attend a scheduled drug counseling session at Tri-County EAP, as required
by the “last chance agreement.” Furthermore, the “last chance agreement” states explicitly that
Palmer’s failure to abide by the agreed-upon conditions of employment—including drug
counseling—could “result in further disciplinary action to include . . . termination.” While Palmer
asserts in her brief that “Hooper clearly acted in complicity with Cacioppo to have [her] terminated,”
she has not presented any evidence supporting such a claim.
Because she has failed to demonstrate a causal relationship between her refusal to submit to
Cacioppo’s alleged sexual advances and her termination, Palmer’s claim of quid pro quo sexual
harassment is without merit. Accordingly, we affirm the district court’s grant of summary judgment.
For these reasons, we affirm the district court’s judgment in all respects.5
Palmer also argues that the district court relied improperly upon various forms of hearsay
in granting summary judgment to the respondents. This argument is without merit. Although the
district court referenced Null’s email to Cacioppo regarding student enrollment in the statement of
facts, it did not rely upon hearsay statements in its reasoning supporting summary judgment.
Palmer v. Cacioppo
CLAY, Circuit Judge, dissenting. Neither the record in this case nor the applicable law
support the district court’s grant of summary judgment for Defendants on Plaintiff’s claims arising
under 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e-2(a)(1). We should therefore reverse and remand for further proceedings. Because the
majority erroneously affirms the judgment of the district court as explained below, I respectfully
Section 1983 Claim
In her claim under 42 U.S.C. § 1983, Plaintiff alleges that Defendant Hooper violated her
Fourth Amendment right to be free from unreasonable search and seizure by directing her to undergo
drug testing. The district court granted summary judgment for Hooper based on a finding that
Plaintiff consented to the drug testing,2 and that the drug testing was reasonable.
Because Plaintiff is a public employee and submitted to the drug testing at the behest of her
employer, the drug testing implicates the Fourth Amendment and must therefore be reasonable to
pass constitutional muster. See, e.g., Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 614
With respect to Plaintiff’s claim arising under the Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2601 et seq., Plaintiff did not appeal the district court’s determination that she does not
have a “serious medical condition,” a threshold requirement under the FMLA. See Branham v.
Gannett Satellite Info. Net., Inc., 619 F.3d 563, 568 (6th Cir. 2010). Therefore, the propriety of the
entry of summary judgment on Plaintiff’s FMLA claim need not be addressed.
It is unclear whether a public employee may validly consent to an otherwise unreasonable
drug testing policy, but the issue was neither briefed by the parties, nor discussed by the district
court, and consequently we need not consider the issue for purposes of this appeal. See, e.g., Nat’l
Fed’n of Fed. Employees v. Weinberger, 818 F.2d 935, 943 (D.C. Cir. 1987) (“[A] search otherwise
unreasonable cannot be redeemed by a public employer’s exaction of a ‘consent’ to the search as a
condition of employment.”) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
Palmer v. Cacioppo
(1989). Reasonableness in this context is determined by balancing the public interest in such testing
with the privacy rights of the individuals subject to the testing. See, e.g., Nat’l Treasury Employees
Union v. Von Raab, 489 U.S. 656, 670-71 (1989); Knox Cnty. Educ. Assoc. v. Knox Cnty. Bd. of
Educ., 158 F.3d 361, 373 (6th Cir. 1998) (hereinafter “Knox County”).
The majority in this case holds that the school board’s “one-year random drug testing
requirement was reasonable, particularly in light of Palmer’s conviction for misdemeanor marijuana
possession.” (Maj. Op. at 11-12.) The majority contends that “[g]iven [Plaintiff’s] marijuana
conviction, the Board’s concern that she might report to work under the influence was wellfounded,” (id. at 12), and that the drug testing requirement “served as a reasonable means of ensuring
her compliance with the Board’s drug-free workplace policy.” (Id. at 13.)
Although the school board may have had a strong interest in requiring drug testing, as the
majority appears to argue, the majority abruptly ends its inquiry on that point, resulting in a truncated
analysis at odds with prevailing case law. See Von Raab, 489 U.S. at 670-71; Knox County, 158
F.3d at 371. Contrary to the majority’s apparent view, drug testing of a public school employee,
such as Plaintiff, is not per se reasonable under the Fourth Amendment any time the school board
has an individualized suspicion of the employee’s off campus drug use. Instead, a court must
balance the public interest in drug testing with a second factor, namely the “employee’s privacy
rights.” Knox County, 158 F.3d at 379-80; see also Chandler v. Miller, 520 U.S. 305, 314-16 (1997).
Without adequately considering the weight of Plaintiff’s privacy rights, and therefore being unable
to properly weigh this countervailing factor against the public interest, the majority has no legal basis
to hold that the drug testing is “reasonable.”
Palmer v. Cacioppo
To accord appropriate weight to Plaintiff’s privacy rights, we must consider: 1) Plaintiff’s
reasonable expectation of privacy based on the “degree to which the industry in question is
regulated,” and 2) the intrusiveness of the drug testing scheme. Knox County, 158 F.3d at 379-80.
Because the record is woefully undeveloped as to these issues, and consequently genuine issues of
material fact remain as to the reasonableness of the drug testing at issue, the majority errs in
affirming the district court’s grant of summary judgment on the basis that the drug testing was
First, as to Plaintiff’s reasonable expectation of privacy as a school employee, public
education is a highly regulated environment, which may diminish a public school employee’s
reasonable expectation of privacy. See id. at 379. But the degree to which Plaintiff’s reasonable
expectation of privacy may have been diminished on account of her employment is unclear. Most
notably, the record contains no evidence of an official drug testing policy apart from one reference
in school board policies to the existence of an undescribed “testing program.” Additionally, the
policies contained in the record regulate only, as the majority concedes, “substance abuse among
school employees while on duty.” (Maj. Op. at 12.) Nothing in the policies contained in the record
purport to restrict an employee’s, such as Palmer’s, off campus marijuana use so long as it remains
unconnected with the workplace. (See id. (quoting school board policies, which apply: “while on
duty, on school property, or at a school related activity/event”).)
The record is likewise silent regarding the extent to which other similarly situated employees
are or have been subjected to drug testing. The record contains no discernible evidence that the
school board provided notice to employees that its substance abuse policies applied to private
Palmer v. Cacioppo
activities unconnected with the workplace. Because the school board relied on Plaintiff’s alleged
marijuana use outside of the workplace to impose the drug testing requirement on Plaintiff, inquiry
into these undeveloped areas is necessary for the proper deposition of this claim.
Second, the record is unilluminating regarding the issue of the intrusiveness of the drug
testing; the only information about the drug testing procedures is contained in a diagnostic document
that appears to report the results of Plaintiff’s drug test.3 The report is bare and unexplained; it
contains the names of eight substances tested for; the results for each substance, with the positive
test results indicating verification by “repeat analysis” without additional explanation; and the name
of the health center and diagnostic company, Quest Diagnostics, Inc., which appears to be a “DHHS
Certificated Laboratory.” The report also makes reference to “GC/MS Reporting Levels,” with
attendant levels, but neither the record nor the parties explain the significance of this information.
The information contained in the unexplained report is insufficient to properly consider the
intrusiveness of the drug testing. See id. at 380-83, 385. To properly evaluate Plaintiff’s claim,
further inquiry is necessary into, among other things: 1) the specific procedures and protocols of the
drug testing, including the physical intrusiveness of the testing itself, the employee’s physical privacy
during the testing, and the qualifications of those performing the testing; 2) the need for the specific
tests performed; 3) the minimum threshold to trigger a positive test result; 4) the reliability of the
test results, including the existence and nature of any independent review or protections against false
Notably, this document was not proffered by Defendants for the purpose of showing the
reasonableness of the drug test. Defendants offered the report only as evidence of the reason for
Plaintiff’s termination. (Defs.’ Br. at 14-15.)
Palmer v. Cacioppo
positives caused by diagnostic errors or circumstances unrelated to illegal drug use, such as
prescribed medication; and 5) the degree to which the test results are maintained in confidence and
stored in a secure manner, including whether the results are available to law enforcement or used for
law enforcement purposes. Id.; see also Nat’l Fed’n of Fed. Employees-IAM v. Vilsack, – F. Supp.
3d –, 2011 WL 1296859, at *9-11 (D.C. Cir. Apr. 6, 2011). Without more evidence in the record
as to the nature and extent of the intrusiveness of the drug testing at issue, summary judgment was
not appropriate on the basis that the drug test was reasonable. See Knox County, 158 F.3d at 386
(remanding challenge to public employee alcohol testing because the record was insufficient).
Accordingly, we should vacate the grant of summary judgment for Defendants on this claim,
and remand for further factual development and legal briefing prior to the district court considering
a motion for summary judgment. See, e.g., Penny v. Kennedy, 915 F.2d 1065, 1068 (6th Cir. 1990)
(en banc) (remanding Fourth Amendment challenge to city’s drug testing policy, opining: “we are
uncertain from the record here whether the . . . fourth amendment aspects of the actual carrying out
of the search . . . have been adequately addressed”).
Title VII Claim
Plaintiff claims quid pro quo sexual harassment in violation of Title VII. The majority sets
forth the applicable legal standard, and it need not be repeated here. For purposes of this claim,
Plaintiff alleges that: 1) her rejection of sexual advances by Cacioppo caused her termination; 2)
Hooper aided the sexual harassment by Cacioppo; and 3) that the school board failed to protect
Palmer v. Cacioppo
In affirming the grant of summary judgment for Defendants, the majority concludes that
Plaintiff “has not presented any evidence suggesting a causal relationship between the alleged sexual
harassment and her discharge months later.” (Maj. Op. at 14.) The majority reasons that Plaintiff’s
notice of termination “makes perfectly clear that her discharge was premised upon numerous
infractions . . . .” (Id. at 14-15.) The majority then rejects Plaintiff’s argument that Hooper and
Cacioppo acted together as without evidentiary support. (Id.)
Although glossed over by the majority, a review of the record makes clear that the district
court erred in granting summary judgment on Plaintiff’s Title VII claim because Defendants plainly
failed to meet their initial burden in moving for summary judgment, and there remain genuine issues
of material fact that preclude a grant of summary judgment.
Defendants moved for summary judgment on the sole basis that Plaintiff “neither asserts nor
proves” the element of causation, for which Defendants contended that “no evidence” existed.
Defendants asserted that Plaintiff was terminated for failing her drug test and otherwise violating the
Last Chance Agreement. Although Defendants may satisfy their initial burden under Rule 56 by
pointing to the absence of evidentiary support for Palmer’s claim, see Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986), Defendants’ failed to meet their initial burden in this case, as explained below,
because Defendants failed to address, or even acknowledge the existence of, evidence tending to
support Palmer’s claim. See Hunter v. Caliber Sys., Inc., 220 F.3d 702, 726 (6th Cir. 2000) (“If a
moving party fails to carry its initial burden of production, the non-moving party has no obligation
to produce anything.”) (internal quotations and citation omitted).
Palmer v. Cacioppo
Defendants offered only the following record evidence in support of their motion below: 1)
an unexplained, general citation to 52 pages of exhibits; 2) citation to deposition testimony wherein
Plaintiff admits to marijuana use during the period in which she was employed, although not while
on the job (Defendants did not explain the relevance of this cited testimony to the Title VII claim);
3) citation to deposition testimony wherein Plaintiff purports to admit that she was fired because of
her positive drug test (Defendants did not explain the relevance of Plaintiff’s subjective belief about
her termination to the Title VII claim); and 4) citation to deposition testimony wherein Plaintiff
admits her inability to produce evidence that Hooper knew about the allegations of sexual
Neither this record evidence nor Defendants’ arguments below or on appeal adequately
address Plaintiff’s allegations against each specific Defendant. With regard to Cacioppo, Defendants
did not directly address Plaintiff’s claim that after she rejected the “unwelcome[d] sexual advances,
Cacioppo repeatedly denigrated her work performance, harassed and beleaguered her, and such
actions ultimately le[d] to and [were] the proximate cause of Palmer being discharged from her
employment of 13 years.” (Am. Compl. ¶ 2; see also Madden v. Chattanooga City Wide Serv. Dep’t,
549 F.3d 666, 677 (6th Cir. 2008) (holding that an employer’s decision to terminate the plaintiff
based on information supplied by a supervisor satisfies the causation requirement); Wilson v. Stroh
Cos., Inc., 952 F.2d 942, 946 (6th Cir. 1992) (holding that the “determinative question is whether
[the plaintiff] has submitted evidence that [a supervisor’s] . . . animus was a cause of the
Palmer v. Cacioppo
Hooper’s liability was likewise all but ignored by Defendants. Defendants’ argument to the
district court consisted only of the following sentence: “[i]t is altogether unclear why Hooper is a
party as there is no evidence that Hooper even knew of Palmer’s allegations against Cacioppo.”
(Mot. at 15 (citing to unexplained deposition testimony).) Defendants’ assertion, however, ignored
Plaintiff’s deposition testimony that she believes Hooper heard about the allegations from another
administrator, and that Plaintiff claims to have herself informed Hathorn of the allegations.
Moreover, any lack of actual knowledge fails to negate Plaintiff’s allegation that Hooper
“intentionally, recklessly, or negligently aided” in the sexual harassment. (Am. Compl. ¶ 3
Finally, in moving for summary judgment, Defendants made no reference at all to the issue
of the liability of the school board, or otherwise addressed the allegations against the school board
contained in the Amended Complaint. (See id. ¶¶ 4-6.)
Accordingly, in the face of unmet allegations that appear to have record support, and the
numerous unresolved material factual disputes that appear to remain, we should reverse the grant of
summary judgment on this claim.
For these reasons, I respectfully dissent from the majority’s disposition of Plaintiff’s claims
arising under 42 U.S.C. § 1983, and Title VII. Because it is unnecessary to address the viability of
Plaintiff’s FMLA claim, for the reasons set forth in footnote 1, supra, I decline to join the majority
opinion’s discussion of the FMLA issue.
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