Meyers v. Northern Kentucky University

Filing 44

MEMORANDUM OPINION AND ORDER; 1)Def's 36 Motion for Summary Judgment is GRANTED; 2)A separate judgment shall enter concurrently. Signed by Judge William O. Bertelsman on 3/11/2013. (LST)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 2011-113 (WOB-JGW)
DEBRA MEYERS

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

NORTHERN KENTUCKY
UNIVERSITY

DEFENDANT

This is an employment discrimination case in which
plaintiff alleges a claim for retaliation.
This matter is before the Court on defendant’s motion
for summary judgment (Doc. 36).

The Court previously heard

oral argument and, after further study, it now issues the
following Memorandum Opinion and Order.
Factual and Procedural Background1
Plaintiff Debra Meyers (“Meyers”) was hired as an
Assistant Professor in the History Department at Northern
Kentucky University (“NKU”) in 2001.
In 2010, due to budget constraints, the Dean of NKU’s
College of Arts & Sciences decided to condense three
administrative positions in his college into two positions.

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Because plaintiff has abandoned all her claims save for a very narrow
retaliation claim, the details of the various hiring decisions
originally challenged are no longer relevant. These facts are thus
highly abbreviated.

Plaintiff, as well as four other candidates, applied for
one of the new positions.

A search committee voted

unanimously not to advance plaintiff’s application due to
her poor communication skills and “confrontational”
interactions with others.
In 2010, plaintiff also applied for a new Director of
General Education position.

Plaintiff was one of eight

candidates “shortlisted” for the job.

Following a

telephone interview, however, the search committee rated
plaintiff unfavorably as to leadership and communication
skills, placing her sixth out of the eight applicants.

The

committee voted unanimously not to advance plaintiff to oncampus interviews.
On May 24, 2011, plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity
Commission (“EEOC”), as well as this lawsuit, alleging
claims for gender discrimination and a violation of the
Equal Pay Act in relation to the two positions for which
she applied in 2010.

(Doc. 1).

At the end of the 2011-12 school year, the Chairperson
of the History Department resigned due to health issues.
The Dean requested faculty input as to who should serve as
an interim Chair, and eight faculty members voted that
plaintiff should not be appointed due to her abrasive
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interactions with co-workers.

The Dean ultimately named a

male professor as Interim Chair.
On April 16, 2012, plaintiff filed a second charge
with the EEOC alleging discrimination and retaliation in
relation to the Interim Chair position.
On May 7, 2012, plaintiff requested, through a
department coordinator, that NKU pay $2,000 tuition for
religion courses plaintiff wanted to take at the College of
Mount St. Joseph in Cincinnati, Ohio.

Beth Sweeney,

Associate Provost for Administration, denied this request
on the grounds that NKU does not generally pay for
employees to take courses at private colleges that fall
outside the university’s tuition waiver policy for courses
at Kentucky institutions.
On June 5, 2012, plaintiff filed a First Amended
Complaint adding claims for sex discrimination,
retaliation, and age discrimination arising out of the
failure to appoint her as the interim Chairperson of the
History Department in early 2012, as well as denial of her
tuition request.

(Doc. 25).

Defendant filed its motion for summary judgment on
October 4, 2012.

In her response, plaintiff states that

she has withdrawn all claims except her claim for

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retaliation based in the denial of her tuition request in
May 2012.

(Doc. 40 at 2).
Analysis

A.

Administrative Exhaustion

Defendant’s first argument is that plaintiff’s
retaliation claim should be dismissed because it was not
raised in her EEOC charge.

(Doc. 36-1 at 21 n.8).

As a prerequisite to bringing suit under Title VII, a
claimant must generally exhaust her administrative remedies
by filing a charge with the EEOC prior to filing suit in
court.

Scott v. Eastman Chem. Co., 275 F. App’x 466, 470

(6th Cir. 2008) (citation omitted).
The Sixth Circuit has held, however, that “retaliation
growing out of the EEOC charge is reasonably foreseeable
and therefore a plaintiff is not required to file yet
another EEOC charge.”

Id. at 474 (citation omitted).

Retaliation occurring prior to the filing of a charge, or
retaliation arising from some protected activity other than
the filing of a charge, must still be administratively
exhausted.

Id.

See also Bhama v. Mercy Mem. Hosp. Corp.,

No. 08-11560, 2009 WL 2595543, at *6-7 (E.D. Mich. Aug. 20,
2009) (discussing this distinction).
Under this authority, plaintiff was not required to
file a third EEOC charge concerning the denial of her
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tuition request because her claim alleges retaliation which
is said to be causally related to her prior charge of
discrimination.

Summary judgment on this basis is thus not

appropriate.
B.

Merits of Retaliation Claim

To establish a prima facie case of retaliation,
plaintiff must establish that: (1) she engaged in activity
protected by Title VII; (2) the exercise of her civil
rights was known to the defendant; (3) thereafter, the
defendant took an employment action adverse to the
plaintiff; and (4) there was a causal connection between
the protected activity and the adverse employment action.
Arendale v. City of Memphis, 519 F.3d 587, 606 (6th Cir.
2008) (citation omitted).
“While temporal proximity between an assertion of
Title VII rights and an adverse employment action provides
highly probative evidence of a causal connection, ‘temporal
proximity alone will not support an inference of
retaliatory discrimination when there is no other
compelling evidence.’”

Id.

If the plaintiff establishes a prima facie case of
retaliation, the burden of production then shifts to the
defendant to proffer a non-discriminatory reason for the
adverse employment action.

Ladd v. Grand Trunk Western
5

R.R., Inc., 552 F.3d 495, 502 (6th Cir. 2009) (citation
omitted).

Once the defendant does so, “the burden of

production shifts back to the plaintiff to demonstrate that
the proffered reason was mere pretext.”

Id.

The burden of

persuasion, however, remains at all times with the
plaintiff.

Id.

Here, plaintiff cannot raise a prima facie case of
retaliation because there is no evidence that Beth Sweeney,
who denied the tuition request, knew of plaintiff’s
protected activity.

Moreover, the undisputed facts show

that when Sweeney rejected the request that the History
Department be permitted to use its credit card to cover
tuition for a staff member, Sweeney did not even know on
whose behalf the request was being made.
On May 7, 2012, Janice Rachford, Academic Coordinator
for the History Department, sent an email to Sweeney,
stating:
Hi Beth,
I just spoke with Jeff in Purchasing regarding a
request by my chair for a full time faculty person
requesting $2000 to be paid toward 2 classes at Mount
Saint Joseph this summer because the amount is over
our Mastercard daily/one time dollar limit. I wasn’t
sure how to pay this. Jeff said I’d need to email you
to find out if the department would be permitted to
charge or pay this type of fee for anyone. If you
need the invoice, let me know and I’ll scan it to send
to you for your review.

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Thanks,
Jan
(Doc. 40-5 at 4).
Within minutes, Sweeney responded:
Jan,
It is not appropriate for the university to pay for
courses for someone to take classes, especially if the
courses are not NKU courses. As a matter of fact, we
recently had a situation in which a department wanted
to cover NKY tuition for an academic assistant who had
exhausted her tuition waivers for the year. The
answer to her, even with it being an NKU course was
“no.”
Let me know if you need anything additional.
Thanks,
Beth
(Doc. 40-5 at 3) (emphasis added).
Thus, at the time that Sweeney made this decision, she
did not even know on whose behalf the request had been
made.

Although Sweeney later learned that it was on behalf

of plaintiff, and she then reiterated her response based on
the school’s tuition waiver policy, this is no indication
of any knowledge which would support an inference of a
retaliatory motive.
Moreover, plaintiff has adduced no evidence that
Sweeney even knew of plaintiff’s then-recent EEOC charge,
and defendant has submitted an affidavit from Sweeney in

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which she avers that she did not.

(Sweeney Aff. ¶ 2, Doc.

41-2).
As a matter of law, therefore, plaintiff cannot raise
a prima facie case of retaliation.
Even if plaintiff could make out a prima facie case of
retaliation, she nonetheless has raised no triable issue of
pretext.

Defendant has stated its non-retaliatory reason

for denying the request: NKU’s Tuition Waiver Policy (Doc.
41-3) permits faculty to take courses at NKU or other
Kentucky universities/colleges, up to a certain number of
credits per year, and have the tuition waived.

The policy

applies only to institutions within the Kentucky system.
While plaintiff argues that her department chair, Paul
Tenkotte, approved a similar request the previous year,
there is no evidence that he did so with the knowledge or
approval of the NKU Administration.

Indeed, Sweeney avers

that Tenkotte was without the authority to approve such a
request.

(Sweeney Aff. ¶ 6).

Moreover, the evidence submitted by plaintiff shows
that the situation in 2011 was different: no direct request
for tuition payment was made to the administration, rather
Tenkotte agreed to provide plaintiff tuition assistance in
lieu of her annual travel reimbursement.

(Doc. 40-5 at 1).

There is no evidence that Sweeney was aware of or involved
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in that decision, and no inference of retaliatory motive
thus arises from her handling of the different request a
year later.
For these reasons, plaintiff raises no triable issue
of retaliation, and defendant is entitled to summary
judgment.
Therefore, having reviewed this matter, and the Court
being otherwise sufficiently advised,
IT IS ORDERED that defendant’s motion for summary
judgment (Doc. 36) be, and is hereby, GRANTED.
judgment shall enter concurrently herewith.
This 11th day of March, 2013.

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A separate