Linton v. Kentucky Justice and Public Safety Cabinet, Department of Juvenile Justice et al
Filing
40
MEMORANDUM OPINION & ORDER: It is ordered that Defendants' 27 MOTION for Summary Judgment be, and is hereby GRANTED. A separate judgment shall enter concurrently herewith. Signed by Judge William O. Bertelsman on 8/1/2011.(TED)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO.
09-095 (WOB-CJS)
GAIL L. LINTON
PLAINTIFF
VS.
MEMORANDUM OPINION
AND ORDER
KENTUCKY JUSTICE
AND PUBLIC SAFETY
CABINET, DEP’T OF
JUVENILE JUSTICE,
ET AL.
DEFENDANTS
This matter is before the court on defendants’ motion
for summary judgment (Doc. 27)
The primary issue is
whether plaintiff has released the majority of her claims.
FACTUAL BACKGROUND
Plaintiff was employed as a food services manager by
the defendant.
A timeline of the material events is
helpful:
8/6/07.
Although told by her supervisors not to do
so, plaintiff attended a disciplinary meeting for a coworker and refused to leave when asked to do so.
Second,
she made a remark to her supervisor concerning how he
tucked in his shirt, which was interpreted by management as
an attempt at intimidation by threatening to bring a sexual
harassment charge.
Lastly, she was asked to respond to
some written questions concerning this conduct and did so
late, although on the same day.
8/7/07.
Plaintiff began a previously scheduled
medical leave to have an operation.
10/25/07. Plaintiff returned from medical leave and
allegedly was assigned additional duties in retaliation for
her above conduct.
She alleges this return to work was
delayed, when she could have been furnished light duty.
11/5/07.
A disciplinary hearing was held with regard
to the above actions. Plaintiff was advised that
disciplinary action was pending.
11/8/07.
Plaintiff filed three appeals to the
Kentucky Personnel Board.
Plaintiff alleges:
At an October 11, 2007 meeting, (before her actual
return to work) Ms. Mardis told Ms. Linton that she
(Linton) was going to be disciplined for allegedly not
leaving the first meeting on August 6, 2007, and that
she had to return as a cook. Based upon her
conversation with Ms. Mardis, Ms. Linton appealed the
actions taken by Defendant to the Kentucky Personnel
Board (“KPB”). She made three separate complaints in
her appeal, namely: (1) that she was returned to Cook
II duties (in addition to her FSO Manager duties)
after returning from medical leave; (2) that she was
receiving pending discipline for allegedly not leaving
the August 6, 2007 co-employee meeting (designated as
first meeting above), and (3) that she was not
afforded mediation prior to her disciplinary hearing.
1/14/08.
reprimand.
Plaintiff actually received the written
The introductory paragraph reads:
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As reported by Debbie Mardis, Fiscal Manager, you
demonstrated misconduct on August 6, 2007, by your
refusal to follow the directive of your supervisor
when ordered to leave a meeting regarding the
discipline of a co-worker, making veiled threats
toward the facility superintendent and failure to
provide a written response regarding your actions by
the designated time as requested by a facility
superintendent.
7/11/08. A hearing on the appeal was held.
During the
hearing a settlement was reached.
8/18/08.
A release pursuant to the settlement was
executed by plaintiff, which reads in pertinent part:
RELEASE AND SETTLEMENT AGREEMENT
THER (sic) RELEASE AND SETTLEMENT AGREEMENT
(“Release”) is made this 18th day of August, 20008, by
and between GAIL LINTON (hereinafter “APPELLANT”) and
the Commonwealth of Kentucky, Justice and Public
Safety Cabinet, Department of Juvenile Justice,
(hereinafter “DJJ”).
WITNESSETH:
WHEREAS, the parties hereto are parties to an
administrative appeal styled Gail Linton v. Department
of Juvenile Justice, Kentucky Personnel Board Appeal
No. 2007-369, 2007-370, 2007-371 (hereinafter
“Appeal”).
WHEREAS, in the Appeal the Appellant has made
certain claims and allegations against DJJ in regard
to Appellant’s return to work from extended sick leave
as well as a written reprimand issued for conduct
preceding the extended sick leave;
WHEREAS, the parties hereto now desire to
compromise and settle any and all claims arising from
the issues in the Appeal and to dismiss the Appeal on
the following terms and conditions:
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NOW, THEREFORE, in consideration of the mutual
covenants and agreements contained herein, the parties
agree as follows:
1.
DJJ will restore sick leave to Appellant for
leave used during the time period beginning
on August 28, 2007 up to Appellant’s date of
return to work, October 25, 2007.
2.
DJJ agrees to remove the written reprimand
from Appellants personnel file.
3.
DJJ shall pay the Appellant the sum of ten
thousand dollars ($10,000.00).
4.
Appellant agrees to withdraw her appeal.
* * * *
7.
. . .
(A) The parties further agree to dismiss
any and all claims arising from the abovereferenced administrative claim, with prejudice,
and each party shall bear their own costs and
expenses incurred herein.
(Doc. 27-3) (emphasis added).
8/13/10.
Amended complaint filed in which plaintiff
alleges that in retaliation for the events of Aug. 6, 2007,
she was assigned additional duties on her return to work,
the reprimand was issued, and:
18.
From the day she returned from the hospital
there has been a continuous series of false
accusations and misdirected verbal and written
reprimands that have made Ms. Linton’s life at work
intolerable. These reprimands have continued to the
present.
* * * *
4
21.
Although Ms. Mardis was no longer her direct
supervisor, Mardis was still the Fiscal Manager. All
the funds Plaintiff spent as food manager on supplies
for the kitchen went through Mardis for her approval.
The atmosphere was electric. Most of the persons who
worked with Plaintiff reported every move she made to
Mardis. Plaintiff Linton was criticized for the
slightest deviation from the norm. She was given a
verbal reprimand for calling from home to check the
delivery of a food order. She was instructed never to
do this again and to write in .25 hours on her time
card.
In another incident Ms. Linton received a
directive telling her not to use premade meals – to
prepare all meals from scratch. However, some premade
meals were already in stock. When she used them she
was severely verbally reprimanded.
Other employees are not treated in this way.
Many other incidents could be cited to show how
differently she was treated – all because she asked
Carter to take care putting in his shirt tail.
22.
The above acts and particularly the written
reprimand are a violation of 42 USC 2000e-2(a) and 42 USC
2000e-3(a) in that they create a hostile work environment
to defeat the statutory privileges of all workers i.e.
the right to report violations of the statute. The
hostile acts were undertaken in retaliation for Ms.
Linton’s opposition to Superintendent Carter’s dropping
of his pants in public.
Amended Complaint (Doc. 17), at 6-7 (emphasis added).
ANALYSIS
A.
Pre-Release Events
Little analysis of this issue is required because it
is quite obvious that plaintiff alleges that all acts
described in the amended complaint arose out of the
incidents of August 6, 2007.
In fact, plaintiff
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specifically alleges that her complaints all arose “because
she asked [a supervisor] to take care putting in his shirt
tail.”
(Am. Compl. ¶ 21)
This incident occurred on that
date and was part of the conduct that was the subject of
the reprimand.
The shirt-tucking remark was specifically
mentioned therein.
As part of the settlement the reprimand
was removed from plaintiff’s file.
This entire scenario
was part of plaintiff’s appeal, which was settled and a
release given by her in consideration of the settlement.
Therefore, the court holds that all claims arising
before the date of the release are barred thereby.
B.
Post-Release Events
As to claims concerning events after the settlement,
plaintiff’s amended complaint is unclear as to whether she
is attempting to allege only a traditional retaliation
claim, a claim for retaliatory harassment, or a claim for
discrimination.
Regrettably, plaintiff’s supplemental
brief that the court ordered be filed sheds no light on
this question.
(Doc. 38 at 5)
Linton relies on two specific events that occurred
after the execution of the release.
First, she alleges
that she was verbally reprimanded for calling work from
home to check on a delivery of a food order.
She claims
that she was ordered to include the hours on her timecard.
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Mark Cummins, a supervisor, submitted an affidavit stating
that the “comp time” had to be pre-approved and Linton was
reprimanded for working without prior approval.
2).
(Doc. 27-
Second, Linton claims that she was “severely verbally
reprimanded” for using pre-made meals which were already in
stock.
In the affidavit of Mark Cummins, he stated that
Linton had been directed to stop using pre-made meals
because DJJ believed it was cheaper to make meals from
scratch.
(Id.)
Thus, he claims, when Linton continued to
use pre-made meals, he discussed the issue with her.
Even viewed in plaintiff’s favor, these events do not
amount to adverse employment actions, nor do they give rise
to an actionable claim for retaliatory harassment.
With respect to retaliation, the court is mindful of
the Supreme Court’s holding that a materially adverse
employment action in the context of a Title VII retaliation
claim is one that would “dissuade[] a reasonable worker
from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. V. White, 548 U.S. 53, 68
(2006) (citation and internal quotation marks omitted).
The Court emphasized the importance of the materiality
requirement because “it is important to separate
significant from trivial harms.”
Id.
Further, this
standard is an objective, not subjective, one.
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Id.
Applying this test, the court concludes as a matter of
law that these two verbal reprimands are not materially
adverse actions so as to support a retaliation claim.
See,
e.g., Lahar v. Oakland County, 304 F. App’x 354, 357 (6th
Cir. 2008) (holding that reprimands were not materially
adverse actions where they did not affect plaintiff’s wages
or prospects for advancement).
Further, the standard for an adverse action for a
discrimination claim is more stringent than that for
retaliation.
See Burlington, 548 U.S. at 67.
Examples of
adverse employment actions include demotions, reductions in
salary or job responsibilities, work reassignments,
harassment to encourage the employee’s resignation, and
early offers of retirement.
Logan v. Denny’s, Inc., 259
F.3d 558, 569 (6th Cir. 2001).
Neither of the post-release
events constitutes an adverse employment action.
In both
cases, Linton only received a verbal reprimand and there is
no evidence that her employment was harmed as a result of
the reprimands.
See Weigold v. ABC Appliance Co., 105 F.
App’x 702, 708 (6th Cir. 2004) (finding reprimand does not
constitute adverse employment action); Covert v. Monroe
County Dep’t of Job & Family Servs., No. 2:08cv744, 2010 WL
2346550, at *8 (S.D. Ohio June 8, 2010) (same).
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Finally, these two post-release events are not
sufficiently severe or pervasive to raise a colorable claim
for retaliatory harassment.
See Kurtz v. Mchugh, No. 10-
5042, 2011 WL 1885983, at *6 n. 2 (6th Cir. May 18, 2011)
(noting that claim for retaliatory harassment must satisfy
the “severe and pervasive” test applicable to hostile work
environment claims).
In both instances, there is evidence that Linton
violated work policies.
Moreover, the verbal reprimands
were not severe, threatening or humiliating.
Finally, as
the reprimands did not result in any disciplinary action or
change in the terms of Linton’s employment, there was no
interference with Linton’s work performance.
Therefore, there are no genuine issues of material
fact and defendants are entitled to judgment as a matter of
law.
Therefore, having reviewed this matter, and the court
being otherwise sufficiently advised,
IT IS ORDERED that defendants’ motion for summary
judgment (Doc. 27) be, and is hereby, GRANTED.
judgment shall enter concurrently herewith.
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A separate
This 1st day of August, 2011.
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