Grizzell v. City of Alexandria et al
Filing
37
MEMORANDUM OPINION AND ORDER; 1)Grizzell's 25 Motion for Partial Summary Judgment is DENIED; 2)The Alexandria Defs' 26 Motion for Summary Judgment is GRANTED; 3)Judgment to be entered. Signed by Judge David L. Bunning on 6/1/2015. (LST)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 14-50-DLB-JGW
MELINDA GRIZZELL
vs.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
CITY OF ALEXANDRIA, et al.
DEFENDANTS
********************
I.
Introduction
This matter is before the Court upon Plaintiff Melinda Grizzell’s Motion for Partial
Summary Judgment (Doc. # 25) and a Motion for Summary Judgment (Doc. # 26) filed by
Defendants City of Alexandria, Alexandria Police Department, Mayor William Rachford and
Chief Michael Ward (collectively, “the Alexandria Defendants”). Both Motions focus on
whether Grizzell has established a prima facie case of the following claims: (1) Title VII
hostile work environment; (2) Title VII retaliation; (3) disability discrimination; (4)
defamation; and (5) intentional infliction of emotional distress. The Court has jurisdiction
over this matter pursuant to 28 U.S.C. §§ 1331, 1367.
II.
Factual and Procedural Background
The Alexandria Police Department (“APD”) hired Grizzell as a police clerk in 1997.
(Doc. # 31 at 28, 34-35). Her duties included distributing mail, answering phone calls,
assisting visitors, filing documents, typing police reports and making arrest jackets. (Id. at
36). Although APD hired her to work part-time, she became a full-time employee within a
1
year. (Id. at 30, 34).
In 1998, Gary Farmer became the APD Chief. (Id. at 34-35). He often directed
sexual comments at Grizzell, compared her physical appearance to that of women on
television and purposely tried to upset her. (Id. at 146-48). Lieutenant Dan Wittrock and
Officer Mike Welch engaged in similar antics and passed gas in Grizzell’s face. (Id.).
Grizzell filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) in 2000. (Id. at 148-49). After filing the Charge, Grizzell received
a phone call from an unidentified woman, who stated “Mike is going to hurt you,” and hung
up. (Id. at 201-02). Grizzell thought she recognized the voice as that of Officer Welch’s
wife. (Id.). The EEOC ultimately found that “there is reasonable cause to believe that
Respondent [APD] has violated Title VII by subjecting the Charging Party [Grizzell] to
sexual harassment, discipline, and different terms and conditions of employment because
of her sex.” (Doc. # 33-1 at 7). Although Chief Farmer left APD shortly thereafter, some
of the other alleged harassers continued to work there. (Doc. # 31 at 148).
Michael Ward became the APD Chief in 2001. (Doc. # 33 at 17). Lieutenant Colonel
Joe Alexander became Assistant Chief. (Doc. # 31 at 46). Early in his tenure, Chief Ward
hired Mary Morscher and Lisa Childers as part-time police clerks. (Id. at 36-39). Grizzell
became their supervisor.
(Id.).
Although Ltc. Alexander was Grizzell’s immediate
supervisor, she worked directly with Chief Ward far more regularly. (Id. at 46). Grizzell and
Chief Ward enjoyed a positive working relationship for almost ten years. (Docs. # 31 at 4445; 33 at 30-33). Professional disagreements occasionally developed between the two, but
they were always able to resolve their differences. (Id.).
2
On several occasions, Grizzell felt uncomfortable as the only female supervisor in
APD. (Doc. # 31 at 86-88). Her male counterparts allegedly told her to “hold her ears”
before supervisor meetings, then proceeded to make inappropriate comments. (Id.). For
example, Grizzell testified that Chief Ward and Lieutenant George Schreiner once had a
detailed conversation about feminine hygiene products, which made her uncomfortable
enough that she asked them to stop. (Id. at 80). Chief Ward denied that such a
conversation took place. (Doc. # 33 at 58).
According to Grizzell, Chief Ward commented on a monthly basis that men were
better than women because they would take things behind the woodshed, while women just
wanted to talk things out. (Doc. # 31 at 72-76). Sometimes he made this observation at
the supervisor meetings, where Grizzell was the only female present. (Id.). Although she
often “cringed” at these comments, she did not complain about them because they “did not
cause measurable harm.” (Id.). Instead, she tried to work around them. (Id.). Chief Ward
insisted that his statement was taken out of context and that he was simply seeking
parental advice from Morscher and Childers about how to cope with his daughters’ frequent
bickering. (Doc. # 33 at 51-54).
Grizzell also alleged that Chief Ward told the female clerks about getting a “woody”
when he saw a boat full of topless women. (Id. at 92-93). Chief Ward admitted that he told
a story about seeing topless women in Europe, but denied describing his physical reaction
to the sight. (Doc. # 33 at 56-58). He explained that it was part of a conversation he had
with Morscher about the culture shock that comes with overseas military service. (Id.).
Morscher testified that she did not find the story to be inappropriate in context, adding that
“[i]t was a conversation we were having about being in the military, and my son was in the
3
military, and you know, we’re 50 years old and we talk as friends.” (Doc. # 32 at 10-11).
Grizzell then testified that Chief Ward once told her and Childers about the sexual
appetites of his former co-worker, who only allowed his wife three days off from sex during
menstruation. (Doc. # 31 at 91). When asked about this conversation, Chief Ward
explained that Childers had also worked with the man in question, and they were simply
recalling the time that he voluntarily shared such intimate details. (Doc. # 33 at 59).
Tensions between Grizzell and Chief Ward mounted in late 2012. Grizzell began
working on the City’s new community event called Christmas in Alexandria (“CIA”), which
she characterized as “a joyful stress.” (Docs. # 30 at 86-87; 31 at 43, 142-43; 33 at 201).
Her mother also testified that Grizzell “enjoyed the project thoroughly.” (Doc. # 34 at 8).
However, Chief Ward and Mayor Rachford remember her being very stressed about the
event, to the point of preparing a resignation letter. (Doc. # 33 at 200-01). Mayor Rachford
“knew she was under a lot of stress,” but he “essentially talked her out of resigning.” (Doc.
# 30 at 126-27).
Meanwhile, Chief Ward considered possible improvements to APD’s software
scheme. (Doc. # 33 at 114-15). On December 4, 2012, Chief Ward, Ltc. Alexander, Lt.
Schreiner and a patrol officer met with the Kentucky Data Interoperability (“KDI”) system
software developers.1 (Docs. # 31 at 48-50; 33 at 114, 117-18). Chief Ward invited
Grizzell to this meeting because she managed the office records well and had once worked
on a program called e-CallResponse. (Id. at 120).
1) KDI is a software initiative spearheaded by Northern Kentucky law enforcement agencies. (Doc.
# 33 at 113-114). It is designed to facilitate the flow of information between officers in the field.
(Id.).
4
When Chief Ward began describing his vision for the software update, Grizzell
suggested that they model the software after a system used by her former corporate
employer. (Docs. # 31 at 52; 33 at 121-22). According to Grizzell, Chief Ward became
combative in front of their guests, telling her that he did not want police officers to become
“data entry people” and blaming her for deficiencies in the e-CallResponse program. (Doc.
# 31 at 53-55). She testified that she was “met with hostility the whole time, and [ ] couldn’t
understand it” because she was only trying to offer suggestions, as Chief Ward had
instructed. (Id.). Chief Ward asked Ltc. Alexander if he was not being clear, but when Ltc.
Alexander tried to respond, Grizzell commented that he would say whatever Chief Ward
wanted to hear. (Id. at 60). She left the room in tears and did not return to the meeting.
(Id. at 54, 57-58).
However, Chief Ward testified that Grizzell interrupted him as soon as he began
speaking. (Doc. # 33 at 100, 122). He felt that her behavior “elevated to the point of
almost conduct unbecoming [because s]he was arguing with the chief of the organization
that she didn’t agree with the direction that I was going and she was arguing that in front
of everybody.” (Id.). When Chief Ward asked Ltc. Alexander if he was being unclear,
Grizzell “verbally attacked him.” (Id. at 123).
Grizzell and Chief Ward discussed the incident the next day. (Doc. # 31 at 70; 33
at 193). When he asked her what had happened at the meetings, she first explained that
she felt disrespected. (Id. at 71). Grizzell then confronted him about his inappropriate
comments, explaining in her deposition that the December 4th meeting was “the straw that
broke the camel’s back” and she had “the perfect opportunity to tell him that this type of
behavior needs to stop.” (Id.). Their heated discussion lasted “maybe an hour or less.”
5
(Id.). Grizzell testified that they calmed down, then spent another hour discussing the
proposed
KDI
improvements,
as
well
as
possible
gender
difference
communications/organizational effectiveness training. (Id.). Grizzell was “exhausted” when
she left Chief Ward’s office, but felt like they would be able to put this disagreement behind
them. (Id.).
According to Chief Ward, Grizzell began yelling at him after he asked her what had
happened at the meeting. (Doc. # 33 at 97-98). He estimated that he spent the first hour
and a half of the meeting “letting her vent” because he could not get a sentence in without
her interrupting and other employees in the office were able to hear her. (Id.). He
described her behavior as akin to that of a victim, in that “she was very upset and he could
not get information from her because she was rambling.” (Id. at 136). For example,
Grizzell allegedly accused him of treating her the same way the City had during the
previous EEOC Charge, which pre-dated Chief Ward’s tenure with the City. (Id. at 99).
Chief Ward felt that Grizzell’s behavior was “out of character for her.” (Id. at 102).
He suspected that stress over CIA caused this outburst, but wanted to find out for sure
what was going on. (Id. at 102, 130). Chief Ward drafted a Record of Counseling (“ROC”),
in which he referred her to counseling through the Employee Assistance Program (“EAP”):
9. SUMMARY OF COUNSELING:
On Tuesday, December 4th during a meeting an exchange between Melinda
and myself occurred. Although this exchange appeared to be a simple
disagreement on work related issues, Melinda left the room shortly
afterwards and did not return to the meeting.
On Wednesday, December 5th I asked Melinda to come into my office to
discuss our exchange and difference of opinion from the previous day. I had
hoped that a 24 hour cooling off period was in order prior to meeting with her.
6
Melinda expressed deep concern over the fact that I (Chief) disrespected her
in front of the other officers and civilians who were present. She stated I
purposely accused her of being the cause of a complicated program report
called e-CallResponse and continued to not listen to her. During our
conversation that lasted more than 2 hours, Melinda expressed “victim” type
feelings with respect to the way other officers treat her and went back years
ago citing incidents that I (Chief) have no knowledge of.
10. RECOMMENDATIONS AND ADVICE OF COUNSELOR:
My inquiries of other officers present confirmed my impression of the
exchange on December 4th to have been nothing more than a difference of
opinion and I in no way accused Melinda of anything.
Melinda has been under extreme stress these past months working on
Christmas in Alexandria and I have witnessed other such outbursts with
members of our business community on the phone with her. It is my opinion
that Melinda needs to seek help through our Employee Assistance Program
(EAP) for stress management.
I have no reason to believe Melinda would lie to me or otherwise make up a
story. Thus, the drastic difference in perceptions between what she believes
happened and what others and I perceived, is why EAP is a good option.
(Docs. # 31 at 139-40; 31-1 at 29).
In the “Command Officer’s Comments” section, Chief Ward incorporated the
following language from APD’s policy manual:
Under the Policy & Procedures of the Police Department, Chapter 12, page
12-10 “Referral to Employee Assistance Program” I am making a Supervisory
Referral to EAP. I am concerned about Melinda and as not to cause her any
loss of work time or out of pocket expense, she is authorized to attend any
and all sessions as required by the counselor on work time and all co-pays
will be covered by the Police Department.
Although Melinda has the right to choose not to seek counseling, failure to
comply with this request may indicate she is unwilling to see available
avenues to improve her job-related performance, further disciplinary action
may result.
All information discussed with the EAP counselor shall be confidential as
required by law. This agency shall not receive or attempt to receive
confidential information from EAP. However, the department’s appropriate
7
supervisor may confirm the member’s attendance as appropriate.
(Doc. # 33 at 144-45).
Chief Ward “wanted to make sure that, in making the referral to EAP, that I was
lockstep with the way the – we should do it,” so he consulted city clerk and de facto human
resources manager Karen Barto (“Barto”). (Id. at 140). On December 7, 2012, Chief Ward
invited Grizzell and Barto into his office, then presented her with the ROC. (Doc. # 33 at
144-45). Chief Ward testified that he told Grizzell the ROC would not remain in her file
once she completed EAP. (Id. at 155-56). He left Barto with Grizzell when she allegedly
began “screaming and yelling at me” and “accus[ing] me of things that I had no idea what
she was talking about.” (Id.). Grizzell then signed the ROC to indicate that she had
received it, but noted that she was too upset to read it. (Doc. # 31-1 at 30). Per Chief
Ward’s instructions, Barto authorized Grizzell to go home early. (Id. at 155).
While ROCs are sometimes issued for positive reasons, Grizzell believed it was a
punitive measure because ROCs are listed under “Disciplinary Measures” in the APD policy
manual. (Doc. # 31 at 113, 117). She felt that she was being singled out as a problem
employee because the ROC “is leading to something else. It’s not the end of it. They
could keep it and hold it against you.” (Id.). According to Grizzell, Chief Ward threatened
to further investigate and reprimand her for non-compliance with EAP. (Id. at 120). She
further explained that Chief Ward can “use this as retaliation, and he knows he has the
authority to do this. And he made the remark he’s taking steps to cover himself . . . So
th[ese are] the steps he’s taking to get me fired.” (Id. at 117).
That afternoon, Grizzell prepared to file a grievance. (Id. at 130-31). Based upon
her review of City and APD policies, she concluded that she had to complain to Mayor
8
Rachford or the City Administrator. (Id.). Because the City had no City Administrator,
Grizzell delivered her Notice of Grievance directly to Mayor Rachford. (Doc. # 30 at 130).
She described Chief Ward’s inappropriate comments, disrespectful attitude at the
December 4th meeting and referral to EAP. (Doc. # 30 at 116, 119, 124-25). Mayor
Rachford testified that Chief Ward had told him about these events at a council meeting the
previous evening, so he asked Chief Ward to join them upstairs and discuss the conflict
further. (Doc. # 30 at 123). Chief Ward declined the invitation. (Doc. # 33 at 156). During
their meeting, Mayor Rachford suggested that Grizzell consult her doctor about the effect
of recent medication changes on her mood. (Id.). She seemed receptive to the idea and
indicated that she would attend counseling if Chief Ward agreed to do so as well. (Id.).
The next day, a Saturday, Chief Ward called Grizzell’s house. (Doc. # 33 at 164).
Her mother answered the phone. (Id.). According to Chief Ward, he told Grizzell’s mother
that he was calling to check on her daughter, and she responded that he was the cause of
her daughter’s stress. (Id.). Grizzell’s mother testified that Chief Ward told her the stress
of CIA was affecting her daughter’s mind. (Doc. # 34 at 7).
Grizzell and her brother crossed paths with Chief Ward at CIA that night. (Doc. #
31 at 140). He again asked if she was alright, to which she replied, “What do you think?”
(Id.). He promised that they would speak later and walked away. (Id.). At her deposition,
Grizzell explained that her brother accompanied her that night because her family feared
that APD personnel would retaliate against her, as they had done during the previous
EEOC investigation. (Id. at 141). She denied being afraid, but admitted that her brother’s
presence was comforting. (Id.).
9
On December 10, 2012, both Grizzell and Chief Ward informed Mayor Rachford of
the phone conversation that took place over the weekend. (Doc. # 30 at 134). Grizzell’s
letter indicates that she was actually quite apprehensive:
This letter is to notify you of my fears. Due to how [Chief Ward] acted Friday,
I am in fear he will use Casey’s Law2 to arrest me. I am in fear of my job, I
am in fear of meeting with him one-on-one or any meeting with him, Lt. Col.
Alexander and Lt. Schreiner. I am in fear of attending staff meetings. I am
in fear of further retaliation. Every time I have had to stand up for my rights
against an officer, retaliation occurs to the point of personal threats, sabotage
to my desk, visits to my home and following of family members.
(Doc. # 31-1 at 35). She then expressed her intent to file another EEOC Charge. (Id.).
Grizzell also reported that she had taken Mayor Rachford’s advice and made an
appointment with her doctor, who was satisfied with her perception and outlook. (Id. at
133; Doc. # 31 at 140).
On December 14, 2012, Mayor Rachford asked Grizzell and Chief Ward to utilize
the Kentucky League of Cities’ arbitration process.3 (144; Doc. # 31-1 at 36). When both
parties consented, Barto began arranging the mediation. (Id.; Doc. # 30 at 235). Just six
days later, Grizzell notified Mayor Rachford that she had changed her mind about
mediation because she did not want to sign a confidentiality agreement. (Doc. # 31-1 at
37). She demanded that Chief Ward destroy her ROC, schedule an organizational
effectiveness and gender communications workshop for APD and restore her credibility
2) Casey’s Law is codified at KRS § 222.430-222.437. It creates a mechanism for involuntary
treatment for a person suffering from alcohol and drug abuse. See also http://caseyslaw.org/.
3) According to Mayor Rachford, the Kentucky League of Cities (“KLC”) is “an association of
cities within the Commonwealth of Kentucky.” (Doc. # 30 at 39). He further explained that they
help municipalities with, inter alia, risk management, employee benefits and legal
representation. (Id.). This is consistent with the information provided on the KLC website. See
http://www.klc.org/.
10
with co-workers. (Id.). She warned that “anything short of this will result in me going
further.” (Id.). Chief Ward agreed to arrange a training seminar, but explained that the
ROC would not be removed from her file until she completed EAP:
In keeping with our years of practice where Records of Counseling (ROC)
are concerned, none are made permanent records so long as the issues
addressed in the counseling form are corrected. In this particular case, you
were directed to go to EAP for stress management counseling. Once that
was accomplished–if only for one visit, the ROC would be removed from your
file. The ball still remains in our court so to speak.
(Doc. # 31-1 at 39).
On January 2, 2013, Mayor Rachford, Chief Ward, Grizzell and Barto formulated the
following conflict resolution plan:
1.
Require that both Melinda and Mike attend EAP counseling sessions offered
through out employee benefit program for stress management. They are to
submit the necessary paperwork to initial these sessions by close of business
on Monday, January 7, 2013.
2.
Require that all city employees attend a workshop on Organizational
Effectiveness and/or Sexual Harassment/Proper Gender Communications.
Karen is to set this up through an appropriate source.
3.
Require that both Melinda and Mike participate in mediation sessions using
an impartial third party mediator thru [sic] the KLC.
(Doc. # 31-1 at 38).
Grizzell and Chief Ward attended individual counseling sessions the next day. (Doc.
# 31-1 at 41; 26 at 58). Grizzell’s counselor wanted her to attend one more session so she
could ensure that Grizzell was not just having a “good mood day.” (Doc. # 31 at 174).
Grizzell initially agreed, but later cancelled her follow-up appointment. (Id.). On January
7, 2013, she informed Mayor Rachford that she had attended one counseling session and
would not be going to any more of them. (Doc. # 31-1 at 41).
11
Grizzell was supposed to receive her quarterly evaluation the next day, but Ltc.
Alexander left several sections blank:
I have not completed certain sections of this report (page 1-performance
factors) due to recent events involving this employee and anything I say,
suggest or recommend is only going to be misconstrued, misunderstood, and
probably will result in an attempt to be used against me somehow. I will do
so on her next quarterly evaluation due on or about April 1st–hopefully issues
will be resolved by then. If not, I will be more than happy to complete this
evaluation along with my comments.
(Doc. # 31-1 at 44). Grizzell told Chief Ward that she was “very disappointed and feel
further harmed by my supervisor not completing my evaluation . . . because he feels I ‘will
use it against him somehow.’” (Id. at 45). That afternoon, Grizzell responded to an
unrelated email thread about possible changes to APD’s Crisis Intervention Team. (Id. at
3-4). Chief Ward instructed Ltc. Alexander and Officer Selby not to respond to her
suggestions without speaking to him first. (Id.).
Mediation took place on January 11, 2013. (Doc. # 33 at 86). Although Grizzell did
not testify about the mediation, she described the session in an email to Mayor Rachford
as follows: “For the record, the mediator ended the negotiations. He slammed his book
shut, said thank you for your time, picked up his and your notebooks and left the room.”
(Doc. # 30 at 241). She further stated that “Chief Ward had no other intention during the
mediation than to be cruel.” (Id.).
Chief Ward testified that Grizzell spoke first. (Id.). The mediator admonished him
for interrupting her once. (Id.). When it was Chief Ward’s turn to speak, Grizzell allegedly
interrupted him three times, prompting the mediator to chastise her. (Id.). Grizzell
allegedly “slammed her books, said she was done, said that she was going to sue us and
that this was over.” (Id. at 86-87). According to Chief Ward, the mediator followed Grizzell
12
and tried to calm her, but he finally returned to the room and indicated that she had walked
out. (Id. at 87).
At Mayor Rachford’s request, Ltc. Alexander completed Grizzell’s evaluation. (Doc.
# 26-6 at 3-6). While “[t]here is no question that you know what your job is and you do it
very well,” Ltc. Alexander thought that her leadership skills, professional qualities and
judgment needed improvement, as “the current dispute you are having with this department
and the chief of police [ ] does not foster teamwork.” (Id.). He further explained that her
dispute with Chief Ward caused “an uneasy feeling within the department and its members.
Everybody is reluctant to say or do anything around you, or even speak with you directly
out of fear that you will get upset, or accuse them of saying something personally attacking
or demeaning you.” (Doc. # 26-6). Grizzell complained to Mayor Rachford that these
comments were “nothing but hostile, rambling, beyond the rating period, judged on recent
dispute, defiant and subjective.” (Doc. # 30 at 242).
On January 18, 2013, the EAP counselor informed Chief Ward that Grizzell
“cancelled her second appointment and is unwilling to continue with the process.
Therefore, she is considered non-compliant and I will close her case as of this date.” (Doc.
# 31-1 at 42). Grizzell testified that she thought she only had to attend one session, based
on the wording of Chief Ward’s December 20, 2012 email. (Doc. # 31 at 168-69). At his
deposition, Chief Ward admitted that the email’s wording was confusing. (Doc. # 33 at 15657; Doc. # 33-1 at 39). He meant that Grizzell needed to attend counseling, even if the
therapist ultimately determined that one session was sufficient. (Id.).
That same day, Barto announced that all APD personnel had to attend a mandatory
training seminar called “Understanding Legal Issues in the Workplace.” (Doc. # 33-1 at 6).
13
Morscher testified that other employees were upset because they had to “take the time to
do this.” (Doc. # 32 at 17). Chief Ward similarly testified that he thought employees were
upset about the training and knew that it was one of Grizzell’s demands. (Doc. # 33 at 82).
According to Grizzell, Chief Ward made this knowledge public. (Doc. # 31 at 192-93). He
maintains that Grizzell publicized this information by making comments to Childers and
Morscher. (Doc. # 33 at 78, 83).
On January 31, 2013, the training seminar took place. (Doc. # 29 at 107). Barto
testified that some of the attendees asked questions that seemed to be indirectly aimed at
Grizzell. (Id. at 88). Grizzell had a similar impression. (Doc. # 31 at 193-94). At her
deposition, she testified that Officers Wince and Selby made comments that seemed to be
directed at her, although they did not mention her by name. (Id.).
After the training ended, several employees gathered in Chief Ward’s office. (Doc.
# 31 at 195-97). Although Grizzell could not hear what they were talking about, she
thought they seemed upset about something. (Id.). As one officer passed by, Grizzell
asked him if those employees were getting “revved up,” but he did not respond. (Id.).
Around the same time, she saw Lt. Schreiner slam a Coke can into the recycling bin in what
seemed to be an angry manner. (Id.). Grizzell called Barto and asked her to come
downstairs so she could calm everyone down. (Doc. # 29 at 113-14). Barto refused
because she was about to leave the office, even after Grizzell allegedly expressed fear for
her safety. (Id.; Doc. # 29 at 113-14). Grizzell then allegedly referred to the past EEOC
complaint and told Barto that she got a call from Mike’s wife, Carol, saying that he was
going to hurt her. (Id. ; Doc. # 31 at 150, 200-01). Barto testified that Grizzell mentioned
Carol Ward, but Grizzell insists that she was referring to Officer Welch’s wife, not Mike
14
Ward’s wife. (Docs. # 29 at 104; 31 at 200-01).
On February 1, 2013, Mayor Rachford placed Grizzell on paid administrative leave
until she provided certification from a qualified mental health professional that she was fit
to return to work. (Doc. # 33-1 at 10). He offered the following rationale in support of his
decision:
Your recent actions have given me concern with respect to your health and
well-being. Yesterday you repeatedly expressed a concern for your safety
at work to me and other City employees. In particular, you have expressed
such a concern that other City employees may physically harm you. I take
such allegations seriously and immediately followed up and spoke with the
individuals with whom you felt threatened. However, at this time I have found
nothing that would substantiate your claims or provide a reasonable basis for
you to feel threatened at work. . . [T]his action is being made solely out of
concern for your personal well-being and is in no way a punishment for
reporting your concerns.
(Id.). On February 13, 2013, Grizzell met with Dr. Steven I. Durkee (“Dr. Durkee”), who
found “no clinical evidence that would warrant [Grizzell] to be considered of harm to herself
or to others at this time” or cause him “to believe that she could not perform the normal
duties of her profession at this time.” (Doc. # 33-1 at 12).
APD retained Adams, Stepner, Woltermann and Dusing (“ASWD”) to investigate
Grizzell’s allegations. (Doc. # 30 at 244). ASWD reported that it was “not able to find
anyone who could corroborate or confirm [Grizzell’s] account. In fact, they refuted it.”
(Doc. # 26-9). When ASWD communicated these findings to Grizzell’s attorney and offered
her “an opportunity to propose some remedial steps that address the Mayor’s concerns,”
Grizzell’s attorney responded that their offer “may leave us no alternative but to pursue
both a claim with the Equal Employment Opportunity Commission, as well as a civil law suit
of defamation and intentional infliction of emotional distress.” (Doc. # 26-10).
15
On February 27, 2013, Mayor Rachford terminated Grizzell’s employment. (Doc.
# 30 at 250). He explained that she was “placed on paid administrative leave because you
made unsubstantiated allegations that Chief Ward was going to physically harm you” and
because her behavior had a detrimental effect on the work environment at APD:
Considering all relevant circumstances, it has become clear to me that your
recent behavior is causing significant stress and anxiety amongst the
Department staff and personnel. This, of course, hinders productivity and the
performance of our service to the public. It has also become clear that many
of the employees no longer feel comfortable working with you for fear that
they will be subject to an unsubstantiated allegation of impropriety.
(Id.). Because the subsequent investigation “failed to identify any evidence to corroborate
your claims [of sexual harassment and retaliation],” and because Grizzell “refused to
propose any solutions or even acknowledge that these legitimate and serious issues exist,”
Mayor Rachford concluded that he had “no choice but to terminate your employment with
the City effective immediately.” (Id.).
On March 21, 2013, Grizzell filed an EEOC Charge of Discrimination. (Doc. # 2612). Almost a year later, the EEOC entered its Dismissal and Notice of Rights, indicating
that the “issues will be decided in a court of competent jurisdiction.” (Doc. # 26-13).
Grizzell filed this action in federal court shortly thereafter. (Doc. # 1). After discovery had
closed, Grizzell filed her Motion for Partial Summary Judgment (Doc. # 25) as to liability
and the Alexandria Defendants filed their Motion for Summary Judgment (Doc. # 26). Both
Motions are now ripe for the Court’s review. (Docs. # 27, 28, 35 and 36).
III.
Analysis
A.
Standard of Review
Summary judgment is appropriate when there is no genuine dispute as to any
16
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). If there is a dispute over facts that might affect the outcome of the case under
governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading
the court that there are no disputed material facts and that he is entitled to judgment as a
matter of law. Id. Once a party files a properly supported motion for summary judgment
by either affirmatively negating an essential element of the non-moving party’s claim or
establishing an affirmative defense, “the adverse party must set forth specific facts showing
that there is a genuine issue for trial.” Id. at 250. “The mere existence of a scintilla of
evidence in support of the [non-moving party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [non-moving party].” Id. at 252.
B.
Threshold Considerations
1.
Claims against APD
Grizzell’s Amended Complaint states Title VII and ADA claims against APD. (Doc.
# 10 at 10-11). In their Motion for Summary Judgment, the Alexandria Defendants argue
that APD should be dismissed from this action because, as a sub-unit of the City, it is not
an entity capable of being sued. (Doc. # 26 at 27-28). Grizzell conceded this point in her
Response. (Doc. # 27-1 at 21).
Having reviewed the relevant case law, the Court agrees with both parties. Because
APD is not an entity sui juris, it must be dismissed as a Defendant in this action. See
Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (stating in the § 1983 context that
a local police department was not an entity which could be sued); Rodgers v. City of
Cleveland, No. 1:05-CV-2349, 2006 WL 2371981, at *1, n. 1 (N.D. Ohio Aug. 15, 2006)
17
(applying this principle in the Title VII context); Jones v. Marcum, 197 F. Supp. 2d 991, 997
(S.D. Ohio 2002) (“Police departments are not sui juris; they are merely sub-units of the
municipalities they serve.”).
2.
Claims against Mayor Rachford and Chief Ward
Grizzell also asserts Title VII and ADA claims against Mayor Rachford and Chief
Ward. (Doc. # 10 at 10-11). Although the Amended Complaint does not explicitly state
whether Grizzell sought to sue these Defendants in their individual capacities, official
capacities or both, the nature of the claims asserted therein led the Court to believe that
Grizzell was proceeding against them in both capacities. (Docs. # 1, 10). Grizzell
confirmed this in her Response to the Alexandria Defendants’ Motion for Summary
Judgment, stating that “the proper Defendants are Michael Ward, both individually and in
his capacity as police chief; William Rachford, both individually and in his capacity as
mayor; and the City of Alexandria.” (Doc. # 27-1 at 21).
a.
Individual Capacity
Pursuant to Title VII of the Civil Rights Act of 1964, an employer may not “fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). An “employer” is defined as “a person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of twenty or
more calendar weeks in the current or preceding calendar year, and any agent of such
person.” 42 U.S.C. § 2000e(b).
18
“[A] narrow, literal reading of the agent clause in §2000e(b) does imply that an
employer’s agent is a statutory employer for purposes of liability.” Wathen v. Gen. Elec.
Co., 115 F.3d 400, 405 (1997) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir.
1995)). Nevertheless, the Sixth Circuit has held that “supervisors, sued in their individual
capacities, are not included within the statutory definition of ‘employer’ under Title VII and
its sister civil rights statutes, and accordingly cannot be held personally liable for
discrimination.” Hiler v. Brown, 117 F.3d 542, 546 (6th Cir. 1999). This principle has also
been applied in the ADA context. See Sullivan v. River Valley Sch. Dist., 197 F.3d 804,
808 n.1 (6th Cir. 1999) (“Individual supervisors who do not independently qualify under the
statutory definition of employers may not be held personally liable in ADA cases.”).
Both parties have based their respective analyses on the premise that Mayor
Rachford and Chief Ward are supervisors within the City government. (Docs. # 10, 25 and
26). The Court finds this to be a reasonable conclusion, given their positions of authority
over other City employees. After all, Mayor Rachford supervises the City Clerk, Zoning
Administrator, Supervisor of Public Works and Community Center Manager. (Doc. # 30 at
32). He also serves as Chief Ward’s superior. (Id.). Chief Ward, in turn, oversees all
sworn and civilian employees within APD. (Doc. # 33 at 112-13). However, the City itself
is the actual employer for all individuals working within the local government, up to and
including Chief Ward and Mayor Rachford. Because Mayor Rachford and Chief Ward do
not independently qualify under the statutory definition of employer, Grizzell’s Title VII and
ADA claims against them in their individual capacities must be dismissed.
b.
Official Capacity
The Sixth Circuit has yet to issue an explicit ruling with respect to official capacity
19
suits against supervisors under Title VII. Suiter v. Logan Cnty., Ky., Civ. A. No. 1:12-CV00155-GNS-HBB, 2015 WL 1405508, at *11 (W.D. Ky. Mar. 26, 2015); Campbell v.
Korleski, No. 2:10-CV-1129, 2011 WL 2748641, at *4-5 (S.D. Ohio July 14, 2011). In Little
v. BP Exploration & Oil Co., the court explained:
there is support for the proposition that a supervisor may be held liable
[under Title VII] in his or her official capacity upon a showing that he or she
could be considered the “alter ego” of the employer. This Court has not
clearly and definitively ruled on this issue and we need not do so today.
Under the standards set forth in other circuits that allow supervisors to be
sued in their official capacity, Plaintiff has failed to make a showing that [the
supervisor] had significant control over Plaintiff’s hiring, firing and working
conditions such that he could be considered the “alter ego” of BP.
265 F.3d 357, 362 n. 2 (6th Cir. 2001). Since Little, “[s]ome district courts within the Sixth
Circuit have discussed this issue, but ultimately conclude that allowing an official capacity
suit against a Defendant is redundant when the employer is already a named defendant.”
Suiter v. Logan Cnty., Ky., Civ. A. No. 1:12-CV-155-GNS-HBB, 2015 WL 1405508, at *11
(W.D. Ky. Mar. 26, 2015) (citing Maudlin v. Inside Out Inc., No. 3:13-CV-00354-TMR, 2014
WL 1342883, at *4 (W.D. Ohio Apr. 3, 2014)). After all, “[a] suit against a municipal officer
in his or her official capacity is functionally equivalent to a suit against the municipal entity.”
Id. (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)).
District courts within the Sixth Circuit have taken a similar approach with respect to
ADA claims against individuals in their official capacities. Although “[a]n ADA [ ] suit may
be brought against a public entity by naming the entity itself or by suing an agent of an
entity in his official capacity,” such suits “‘generally represent only another way of pleading
an action against an entity of which an officer is an agent.’” Moore v. Tanner, Civ. A. No.
07-CV-10442, 2008 WL 3876346, at *6 (E.D. Mich. Aug. 18, 2008) (quoting Monell v. New
20
York City Dept. Of Soc. Servs., 436 U.S. 658, 690 n. 55 ((1978)); see also Norris v.
Marrero, Civ. A. No. 5:14-234-DCR, 2014 WL 7366224, at *5 (E.D. Ky. Dec. 24, 2014).
In this case, the Court will assume, without deciding, that Grizzell’s Title VII and ADA
claims against Mayor Rachford and Chief Ward in their official capacities are cognizable
in the Sixth Circuit. However, Grizzell has already asserted identical claims against the City
itself, so the Court will follow Logan Cnty’s approach and treat Grizzell’s federal claims in
all respects as claims against the City. Thus, the following substantive analysis of those
claims applies with equal force to her presumed claims against Mayor Rachford and Chief
Ward in their official capacities.
C.
Grizzell’s Federal Claims Against the City
1.
Title VII Hostile Work Environment4
Despite its broad language, “Title VII does not prohibit all verbal or physical
harassment in the workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
80 (1998) (stating that Title VII is not meant to eradicate the “genuine but innocuous
differences in the ways men and women routinely interact with members of the same sex
and of the opposite sex). Rather, “it is directed only at ‘discriminat[ion] . . . because of . .
. sex.’” Id.
The key inquiry is “whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the other sex are
4) Grizzell’s Amended Complaint states a claim for violations of Title VII and “the Fair Employment
Practices Act under KRS 344.010 et seq.” (Doc. # 10, p. 10, ¶ 54). Grizzell presumably refers to
the Kentucky Civil Rights Act, codified at KRS § 344.010 et seq., which provides similar protections
as Title VII. See Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005). “A sexual
harassment claim brought under the Kentucky Civil Rights Act (“KCRA”) is to be analyzed in the
same manner as a claim brought under Title VII, its federal counterpart.” Id. (citing Ammerman v.
Bd. of Ed. of Nicholas Cnty., 30 S.W.3d 793, 797-98 (Ky. 2000)). The Court will consolidate its
analysis accordingly.
21
not exposed.” Id. (internal citations omitted).
“A plaintiff may establish a violation of Title VII by proving that the sex discrimination
created a hostile or abusive work environment without having to prove a tangible
employment action.” Bowman v. Shawnee St. Univ., 220 F.3d 456, 462 (6th Cir. 2000).
To succeed on such a claim, the plaintiff must establish that (1) the employee belonged to
a protected class; (2) the employee was subject to unwelcome harassment; (3) the
harassment was based on the employee’s sex; and (4) the harassment was sufficiently
severe or pervasive to alter the conditions of employment and create an abusive working
environment.” Williams v. Gen. Motors Corp., 187 F.3d 553, 562-63 (6th Cir. 1999).5
To determine whether harassing conduct is so severe or pervasive as to create a
hostile work environment, courts must consider the “frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.”
Id. at 814. “Under this totality-of circumstances6 test, ‘the issue is not whether each
5) An employer’s liability for harassment under Title VII may depend on whether the harasser is the
victim’s co-worker or supervisor. Vance v. Ball St. Univ., 133 S. Ct. 2434, 2439 (2013). However,
“district courts must not conduct separate analyses based on the identity of the harasser unless and
until considering employer liability.” Id. (further stating that “the totality of the circumstances, of
necessity, includes all incidents of alleged harassment”). Although the Court earlier noted that
Mayor Rachford and Chief Ward are supervisors, the distinction is immaterial to the Court’s analysis
of this claim because Grizzell has not demonstrated that the offensive conduct was severe enough
to alter the conditions of employment.
6) Courts characterize this test as having both objective and subjective components. Bowman,
220 F.3d at 463. The objective component was essentially the totality of the circumstances test.
Id. The subjective component requires that “the victim must subjectively regard the environment
as abusive.” Id. By virtue of the fact that the victim is bringing such a claim, one can infer that he
or she regarded the environment as abusive, which perhaps explains why courts focus heavily on
the objective aspect. See Waldo, 726 F.3d at 814. In this case, Grizzell testified that she “cringed”
at some of Chief Ward’s comments and found them to be inappropriate, but admitted that some of
his statements did not cause “measurable harm” and were not so offensive that she felt she needed
22
incident of harassment standing alone is sufficient to sustain the cause of action in a hostile
work environment case, but whether–taken together–the reported incidents make out such
a case.’” Id. (quoting Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999)); see
also Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 790 (6th Cir. 2000) (stating that
isolated incidents will not satisfy the objective part of the test unless they are extremely
serious).
This test “ensure[s] that Title VII does not become a ‘general civility code’” and, if
implemented effectively, “filter[s] out complaints attacking ‘the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender-related jokes, and
occasional teasing.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Courts
applying the totality of the circumstances test have been much more likely to find that there
was a hostile work environment when the employee suffered continual and physically
invasive harassment. Compare Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334 (6th
Cir. 2008) (finding that there was a hostile work environment where co-worker repeatedly
requested oral sex from plaintiff and rubbed against her with his private parts while working
on production line) and Williams v. Gen. Motors Corp., 187 F.3d 553, 563-64 (6th Cir. 1999)
(concluding that plaintiff had made a prima facie showing of hostile work environment
where she was subjected to continual sexual propositions, derogatory remarks about
women and physical pranks, such as being hit by a thrown box and locked in her work
area) with Clark v. United Parcel Serv., Inc., 400 F.3d 341, 351 (6th Cir. 2005) (finding no
hostile work environment when male supervisor told vulgar jokes, twice pressed vibrating
to do something. (Doc. # 31 at 72-76).
23
pager against plaintiff’s thigh, and once pulled at her overalls when she said she was
wearing a thong) and Stacy v. Shoney’s, Inc., 142 F.3d 436 (6th Cir. 1998) (table) (finding
that plaintiff had not established a hostile work environment when male supervisor regularly
made sexual comments and touched plaintiff’s breast once while removing a pen from her
shirt pocket).
Grizzell alleges that Chief Ward created a hostile work environment with the
following actions: (1) telling female employees the story about the topless women in the
boat; (2) detailing a former co-worker’s sexual proclivities in front of female employees; (3)
referring to City Clerk Karen Barto as a “fucking bitch;” (4) observing that men were better
than women because women always wanted to talk things out, while men would fight things
out; and (5) displaying an image of Hillary Clinton with what appeared to be a bullet hole
through her forehead in his office. (Docs. # 25 at 11; 31-1 at 37). Although Grizzell did not
complain about these comments at the time they were made, Chief Ward’s behavior at the
December 4th meeting “pushed her to the point where she could no longer remain silent
about the hostility she felt and the effect it was having on her work.” (Id.).
The Alexandria Defendants insist that “[n]one of these comments, taken individually
or as a whole, are severe or pervasive enough to create a sexually hostile work
environment as a matter of law.” (Doc. # 26 at 11). In support of this assertion, the
Alexandria Defendants point out that Chief Ward never made sexual advances towards
Grizzell or touched her inappropriately. (Id. at 13). They maintain that Chief Ward did
nothing more than tell a handful of risque stories and inappropriate jokes over a ten year
period. (Id.). The Alexandria Defendants also find it telling that Grizzell decided to
complain about Chief Ward’s comments, some of which were years-old, shortly after he
24
disrespected her in front of guests. (Id. at 14).
While there is some disagreement as to what Chief Ward actually said during some
of these conversations, it does not impact the Court’s analysis. Accepting Grizzell’s entire
version of events, Chief Ward’s alleged conduct is not severe enough, under the totality of
the circumstances, to alter the conditions of employment. Grizzell failed to establish that
Chief Ward made such comments frequently.
Although she testified that he made
generalizations about men and women on a monthly basis for about two years, she was
unable to recall when or how often she heard the other statements. (Doc. # 31 at 72-76).
She could only state that she was present when Chief Ward told two inappropriate stories
and joked about feminine hygiene products with Lt. Schreiner. (Id. at 51-53, 72-76, 90-93).
In short, she has established that Chief Ward made a few inappropriate comments and told
some risque stories over a ten year period.
Moreover, there is no evidence that Chief Ward ever touched Grizzell inappropriately
or made sexual advances towards her; his inappropriate conduct consists solely of
comments made in Grizzell’s presence.
While his comments may have been of a
questionable nature, they were not particularly severe, nor did they unreasonably interfere
with Grizzell’s work. Morscher testified that Chef Ward’s story about the topless women
sounded inappropriate in the abstract, but was not offensive in the context of their
conversation. (Doc. # 32 at 10-11). Even Grizzell admitted that Chief Ward’s sexist
generalizations “w[ere]n’t so offensive that I felt I needed to do something about it.” (Doc.
# 31 at 72). Likewise, his conversation with Lt. Schreiner about feminine hygiene products,
although embarrassing and unpleasant, did not cause her “measurable harm.” (Id. at 80).
Although Grizzell asked Chief Ward and Lt. Schreiner to cease their conversation on that
25
occasion, she never filed a grievance about Chief Ward’s other comments. (Id.). When
asked why she did not take such action, Grizzell testified that she tried to work around
these comments. (Id. at 72-76).
Stated simply, this case is one that the totality of the circumstances test is meant to
filter out. Grizzell has, at best, established that Chief Ward sporadically used abusive
language and made gender-related jokes. While he may have been unwise in his choice
of anecdotes, such poor decision-making is not actionable under Title VII. To allow
Grizzell’s claim to move forward would essentially turn Title VII into a “general civility code,”
contrary to its intended purpose. For these reasons, the Alexandria Defendants are entitled
to summary judgment on Grizzell’s Title VII hostile work environment claim.
2.
Retaliation in Violation of Title VII
Title VII prohibits an employer from “discriminat[ing] against any of his employees
or applicants for employment . . . 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). This provision is intended “to prevent employer
interference with unfettered access to Title VII’s remedial mechanisms.” Burlington N. &
Sante Fe Ry. Co. v. White, 548 U.S. 53, 55 (2006).
When a plaintiff proffers circumstantial evidence to support a claim of retaliation,
courts must apply the McDonnell Douglas burden-shifting framework. Imwalle v. Reliance
Med. Prod., Inc., 515 F.3d 531, 543-44 (6th Cir. 2008). If the plaintiff establishes a prima
facie case of retaliation, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Id. Upon such a showing,
26
the burden then shifts back to the plaintiff to “demonstrate by a preponderance of the
evidence that the legitimate reason offered by the defendant was not its true reason, but
instead was a pretext designed to mask retaliation.” Id. at 544.
A prima facie case of Title VII retaliation is composed of the following elements: (1)
the plaintiff engaged in a protected activity; (2) the exercise of protected civil rights was
known to the defendant; (3) the defendant thereafter took adverse employment action
towards the plaintiff; and (4) there was a causal connection between the protected activity
and the adverse employment action. Id. “Title VII retaliation claims ‘must be proved
according to traditional principles of but-for causation,’ which ‘requires proof that the
unlawful retaliation would not have occurred in the absence of the alleged wrongful action
or actions of the employer.’” Laster v. City of Kalamazoo, 746 F.3d 714, 731 (6th Cir. 2014)
(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013)).
Grizzell argues that she has established a prima facie case of Title VII retaliation
because she confronted Chief Ward about his inappropriate comments, only to be
questioned about her mental health, ordered to attend therapy and terminated from
employment shortly thereafter. (Doc. # 25 at 12). As for the required causal connection,
Grizzell states simply that her “actions undoubtedly have a connection. It is clear had the
Plaintiff never addressed her concerns she would not have had an EAP requirement placed
in her file and ultimately been terminated.” (Id.).
The Alexandria Defendants maintain that Grizzell “cannot prove that her alleged
complaint of inappropriate statements to Chief Ward on December 5, 2012 was the but-for
cause of her termination.” (Doc. # 26 at 15). Instead, they contend that she was
terminated solely due to her disruptive behavior, which created a discordant atmosphere
27
in APD and made her co-workers uncomfortable working with her. (Id.). Grizzell responds
that they have failed to identify any disruptive behavior on her part. (Doc. # 27-1 at 13).
She insists that Chief Ward created the tense office environment by investigating her
complaints himself, rather than recruiting a neutral third party for the task. (Id.).
The record reflects that Grizzell and Chief Ward had a disagreement during an open
meeting on December 4, 2012. (Docs. # 31 at 53-55; 33 at 121-22). Each of them felt that
they had been disrespected by the other. (Id.). When they tried to discuss the issue the
next day, their tempers flamed again. (Docs. # 31 at 70-71; 33 at 97-98). Grizzell then
confronted Chief Ward about his inappropriate comments, later testifying that his behavior
at the December 4th meeting was the “straw that broke the camel’s back.” (Doc. # 31 at
70-71). On December 7th, Chief Ward presented Grizzell with an ROC and referred her
to counseling through EAP. (Id.). Grizzell complained to Mayor Rachford, which caused
the dispute to escalate. (Doc. # 31 at 139-40). Thus, Grizzell has satisfied the first three
elements of the retaliation test.
However, Grizzell has not demonstrated that her complaints about Chief Ward’s
comments were the but-for cause of her referral to therapy. Grizzell voiced her concerns
about Chief Ward’s gender-based comments on December 5th. At that time, the two were
heatedly discussing the reciprocal disrespect exhibited at the previous day’s meeting.
Chief Ward testified that her behavior on both occasions was out of character for her, so
he referred her to EAP. (Doc. # 33 at 102, 130). If Grizzell had only confronted Chief Ward
about his gender-based comments, then received the EAP referral, this would be a much
easier case. But because the December 4th meeting played a role in Chief Ward’s
decision, the record simply does not allow a reasonable juror to find that her complaints
28
were the but-for cause of her referral.
Likewise, Grizzell has failed to establish that her complaints were the but-for cause
of her administrative leave and termination. Mayor Rachford testified that he placed
Grizzell on leave and terminated her employment due to disruptive behavior. (Doc. # 30
at 250). Although Grizzell insists that her behavior was not disruptive, the record reflects
that some of her co-workers became uncomfortable working with her. (Docs. # 31-1 at 44;
33 at 82). If Mayor Rachford had received Grizzell’s complaints, then terminated her
employment for disruptive behavior, contrary to co-workers’ testimony that they worked well
with her, then this would be an easier case. But because there is evidence that her
behavior was a concern to other employees, and that this factored into Mayor Rachford’s
decision to terminate her employment, the record simply does not allow a reasonable juror
to find that her complaints were the but-for cause of her referral.
Stated simply, Grizzell has not only failed to establish a prima facie case of Title VII
retaliation, she has failed to show that there is a genuine issue of material fact to preclude
this Court from granting the Alexandria Defendants’ Motion for Summary Judgment.
Grizzell attempts to blame the office tension on Chief Ward, who asked other supervisors
about his behavior at the December 4th meeting, inquired whether he made female
employees uncomfortable and asked some of those individuals to report unusual behavior
from Grizzell. However, nothing in the record suggests that these inquiries affected other
employees’ attitude towards Grizzell. Because Grizzell has not demonstrated that there
is a genuine issue of material fact as to whether her complaints about Chief Ward were the
but-for cause of her EAP referral, leave and termination, the Alexandria Defendants are
entitled to summary judgment on this claim.
29
3.
Disability Discrimination in Violation of the ADA7
As the Court has already noted, Title I of the ADA prohibits employers from
“discriminat[ing] against a qualified individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). Because direct evidence of discriminatory treatment is usually
unavailable, the law allows plaintiffs to present indirect evidence of discrimination using the
burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green. See 411 U.S. 792,
(1973); see also Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998). If the plaintiff
states a prima facie case of disability discrimination, the burden shifts to the defendant to
articulate a legitimate non-discriminatory reason for the adverse action. Id. Once the
defendant proffers such a reason, the burden shifts back to the plaintiff to show that it is a
pretext for discrimination. Id.
a.
Prima facie case
A prima facie case of disability discrimination in violation of the ADA consists of the
following five elements: (1) the plaintiff is disabled; (2) the plaintiff is otherwise qualified to
perform the essential functions of the position, with or without reasonable accommodation;
(3) the plaintiff suffered an adverse employment action because of his or her disability; (4)
the employer knew or had reason to know of the plaintiff’s disability; and (5) the position
7) Grizzell also states a claim for violations of the Americans with Disabilities Act and the Kentucky
Civil Rights Act. Because the Kentucky Civil Rights Act mirrors the Americans with Disabilities Act,
the Court will again use the federal framework to analyze both claims. Compare 42 U.S.C. § 12112
with Ky. Rev. Stat. Ann. § 344.010, et seq.; see Bryson v. Regis Corp., 498 F.3d 561, 754 (6th Cir.
2007); Hallahan v. Courier-Journal, 138 S.W.3d 699, 706-07 (Ky. Ct. App. 2004).
30
remained open while the employer sought other applicants or the disabled individual was
replaced. Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011). The Alexandria
Defendants attack only one aspect of Grizzell’s prima facie case–whether or not she was
“regarded as” disabled.
The ADA Amendments Act of 2008 (“ADAAA”)8 construes “the definition of ‘disability’
. . . broadly in favor of expansive coverage to the maximum extent permitted by the terms
of the ADA.” 29 C.F.R. § 1630.1(c)(4). Accordingly, an individual is “disabled” if they
satisfy one of the following criteria:
(A)
a physical or mental impairment that substantially limits one or
more major life activities of such individual;
(B)
a record of such an impairment; or
(C)
being regarded as having such an impairment as described in
paragraph (I) of this section.
29 C.F.R. § 1630.2(g)(1); see also 29 C.F.R. § 1630.2(g)(2) (stating that “[a]n individual
may establish coverage under any one or more of these three prongs of the definition of
disability”). “The question of whether an individual meets the definition of disability under
this part should not demand extensive analysis.” 29 C.F.R. § 1630.1(c)(4).
“[A]n individual is ‘regarded as having such an impairment’ if the individual is
subjected to a prohibited action because of an actual or perceived physical or mental
impairment, whether or not that impairment substantially limits, or is perceived to
substantially limit, a major life activity.” 29 C.F.R. § 1630.2(l)(1). Prohibited actions include
8) The ADAAA’s primary purpose is “to make it easier for people with disabilities to obtain
protection under the ADA.” 29 C.F.R. § 1630.1(c)(4).
31
“but are not limited to refusal to hire, demotion, placement on voluntary leave, termination,
exclusion for failure to meet a qualification standard, harassment, or denial of any other
term, condition, or privilege of employment.” Id.
Grizzell insists that the Alexandria Defendants “regarded her” as being disabled. In
support of this proposition, she points out that Chief Ward referred her to counseling for
stress management, which ultimately led to her administrative leave and termination. (Doc.
# 27-1 at 14-15). The Alexandria Defendants contend that they had a right to refer Grizzell
to counseling in order to figure out the cause of her behavior. (Doc. # 26 at 18-19). They
further note “an employer’s perception that health problems are adversely affecting an
employee’s job performance is not tantamount to regarding that employee as disabled.”
(Id.). Grizzell responds that such a right only exists when the employee’s condition affects
their ability to perform essential job functions, which was not the case here. (Doc. # 27-1
at 15).
Whether or not the Alexandria Defendants were justified in referring Grizzell to
counseling, the Court generally agrees that such a referral does not necessarily establish
that they regarded her as disabled. However, the ADAAA has expanded the scope of ADA
coverage significantly. With that in mind, the Court will assume, without definitively
deciding, that Grizzell was regarded as disabled.9 Thus, the Court also presumes that
Grizzell has successfully stated a prima facie case of disability discrimination. The burden
now shifts back to the Alexandria Defendants to articulate a legitimate non-discriminatory
9) Even if the Court is too generous in assuming that Grizzell was regarded as having a disability,
any errors in this analysis will have no impact on the ultimate disposition of this case. As explained
below, the Alexandria Defendants are entitled to summary judgment on Grizzell’s disability
discrimination claim because she cannot demonstrate pretext.”
32
reason for his termination. Whitfield, 639 F.3d at 259.
b.
Legitimate non-discriminatory reason
“A critical attitude toward co-workers and disruptive behavior in the workplace may
constitute a legitimate reason for discharge.” Algie v. Northern Ky. Univ., 456 F. App’x 514,
517 (6th Cir. 2012) (citing Lovelace v. BP Prods. N. Am., Inc., 252 F. App’x 33, 42-43 (6th
Cir. 2007)); see also Howard v. Magoffin Cnty. Bd. of Ed., 830 F. Supp. 2d 308, 317 (E.D.
Ky. 2011). The Sixth Circuit “has repeatedly stated that an employer may legitimately fire
an employee for conduct, even conduct that occurs as a result of a disability, if that conduct
disqualifies the employee from his or her job.” Macy v. Hopkins Cnty. Sch. Bd. of Ed., 484
F.3d 357, 366 (6th Cir. 2007) (abrogated on other grounds by Lewis v. Humboldt
Acquisition Corp., Inc., 681 F.3d 312 (6th Cir. 2012)); Sullivan v. River Valley Sch. Dist.,
197 F.3d 804, 813 (6th Cir. 1999); Brohm v. JH Props., Inc., 149 F.3d 517, 521-22 (6th Cir.
1998).
The Alexandria Defendants maintain that they terminated Grizzell’s employment due
to her disruptive behavior. (Doc. # 26 at 20-21). There is support for this assertion in the
record. Some of Grizzell’s co-workers submitted affidavits, stating that they became
uncomfortable working with her out of fear she would complain about them. (Docs. # 26-4;
26-6; 31-1 at 25). Between December 4, 2012 and February 1, 2013, Grizzell made
specific demands to Chief Ward and threatened to file an EEOC Charge if he did not
comply. (Doc. # 31-1 at 35-37). She behaved in a hostile and combative manner towards
him. (Doc. # 26-4). And even though she testified that she was not afraid of APD
personnel, her email referencing Casey’s Law and her phone call to Karen Barto suggest
otherwise. (Doc. # 31-1 at 35–37). Because the Alexandria Defendants have articulated
33
a legitimate, nondiscriminatory reason for termination, the burden now shifts back to
Grizzell to show that their reason is a pretext for discrimination.
c.
Pretext
A plaintiff may show pretext by demonstrating one of the following: (1) the proffered
reasons had no basis in fact; (2) the proffered reasons did not actually motivate the
employer’s action; or (3) they were insufficient to motivate the employer’s action. Wright
v. Memphis Light, Gas & Water Div., 558 F. App’x 548, 554 (6th Cir. 2014). The plaintiff
must “produce sufficient evidence from which a jury could reasonably reject [the
defendant’s] explanation of why it [took adverse employment action.]” Id. (quoting Chen v.
Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)). “[T]emporal proximity alone cannot
create a genuine issue of material fact as to whether Defendant’s proffered reason for
termination was pretext, and that the actual motivation was disability discrimination.”
Joostberns v. United Parcel Servs., Inc., 166 F. App’x 783, 798 (6th Cir. 2006).
Grizzell suggests that the proffered reason for termination has no basis in fact
because she “was never placed on any notice that her behavior was disrupting the
workplace nor was there anything reported by any of the parties or coworkers in
depositions or interviews that would support a claim that she was causing a disruption.”
(Doc. # 27-1 at 22). The Court disagrees. As detailed above, there is evidence in the
record to suggest that Grizzell was disruptive, regardless of whether anyone informed her
about the effects of her behavior.
Grizzell makes one other argument about pretext: “The Defendants offer support
that the Plaintiff’s behavior was disruptive by attaching three affidavits that simply say her
behavior was disruptive. Nothing more. This alone supports the pretext that has no basis
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in fact.” (Doc. # 37-1 at 16). The Court again disagrees with Grizzell. Just because the
affidavits share similar language does not render their content untrue. As observed above,
there is deposition testimony to support the assertions contained in the affidavits. Because
Grizzell failed to show that her disruptive behavior was a pretext for discrimination, the
Alexandria Defendants are entitled to summary judgment on this claim.
D.
Grizzell’s State Law Claims against Chief Ward
1.
Defamation
To establish a cause of action for defamation under Kentucky law, a plaintiff must
prove the following elements: (1) defamatory language; (2) about the plaintiff; (3) which is
published; and (4) which causes injury to reputation. Stringer v. Wal-Mart Stores, Inc., 151
S.W.3d 781, 793 (Ky. 2004). “‘Defamatory language’ is broadly construed as language that
‘tends so to harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him.’” Id. (quoting
Restatement (Second) of Torts § 559 (1977)). A jury should determine, “on the basis of
competent evidence, whether a defamatory meaning was attributed to it by those who
received the communication.’” Id. (quoting Yancey v. Hamilton, 783 S.W.2d 854, 858 (Ky.
1989)). However, the terms “‘should be construed in their most natural meaning and
should be ‘measured by the natural and probable effect on the mind of the average
reader.’” Id. (quoting Yancey, 783 S.W.2d at 858).
As for the second element, the plaintiff need not specifically be identified “so long
as it was so reasonably understood by plaintiff’s ‘friends and acquaintances . . . familiar
with the incident.’” Id.
Element three, publication, refers to intentional or negligent
communication to someone other than the party defamed. Id. Regarding the final element,
35
Kentucky law retains some archaic distinctions between statements that are defamatory
per se and per quod. If a statement is defamatory per se, “recovery is permitted without
proof of special damages because injury to reputation is presumed and the words are
‘actionable on their face–without proof of extrinsic facts or explicatory circumstances.”
Spoken words are slanderous per se “only if they impute crime, infectious disease, or
unfitness to perform duties of office, or tend to disinherit him.” Id. at 795.
In her Motion For Partial Summary Judgment, Grizzell states as follows:
Defendant Ward incorrectly informed the Plaintiff’s co-workers and mother
that her behavior was unstable and clearly due to stress. Once Defendant
Ward made the Plaintiff’s complaints public, along with what he believed to
be her reason for stating the same, she lost the respect of both her
coworkers and insubordinates [sic]. He asked her coworkers, including her
subordinates, to watch her and make reports back to him. His actions
caused her to lose their respect and inhibit her ability to perform her job
duties. His handling of this situation ultimately led to her termination and
interference with her livelihood.
(Doc. # 25 at 14).
As the Alexandria Defendants are quick to point out, there is no evidence in the
record that Chief Ward actually commented on Grizzell’s mental health to her co-workers.
He testified that he asked other supervisors present at the December 4th meeting if he was
disrespectful to Grizzell and inquired whether his comments were offensive to other female
employees. (Doc. # 33 at 33-34). Chief Ward also asked other supervisors to document
unusual behavior from Grizzell. (Id.). However, there is no testimony in the record that he
spoke specifically about Grizzell’s mental health on any of these occasions. Grizzell also
speculated that Chief Ward, Childers and a few other employees were talking about her in
his office on January 31, 2013, but she could not hear their conversation. (Doc. # 31 at
196-98). Thus, there is no evidence that he spoke about her mental health on this
36
occasion either. Absent such evidence, Grizzell cannot demonstrate that Chief Ward made
defamatory statements about her.
Grizzell is able to identify one specific statement that Chief Ward made about her
mental health. Although the exact phrasing is disputed, both parties agree that Chief Ward
called Grizzell’s house and expressed concern about her stress level and/or mental health
to her mother. (Docs. # 33 at 164; 34 at 7). Even assuming that the statement was
defamatory, Grizzell cannot prove that this particular statement caused injury to her
reputation. Because Chief Ward did not “impute crime, infectious disease, or unfitness to
perform duties of office,” Grizzell must prove special damages. However, she cannot prove
that his statement to her mother actually caused injury to her reputation. Her mother
explicitly testified that she did not believe Chief Ward’s comments about her daughter.
(Doc. # 34 at 7). Thus, the Alexandria Defendants are entitled to summary judgment on
the defamation claim.
2,
Intentional Infliction of Emotional Distress
a.
Use as a “Gap-Filler”
Kentucky courts often characterize IIED as a gap-filler tort. See, e.g., Rigazio v.
Archdiocese of Louisville, 853 S.W.2d 295, 299 (Ky. App. 1993) (“[W]here an actor’s
conduct amounts to the commission of one of the traditional torts such as assault, battery,
or negligence for which recovery for emotional distress is allowed, and the conduct was not
intended only to cause extreme emotional distress in the victim, the tort of outrage will not
lie.”). Although it can also be “a stand-alone tort under the right facts,” the Kentucky
Supreme Court has stated that “there can be only one recovery on a given set of facts.”
Childers v. Geile, 367 S.W.3d 576, 582 (Ky. 2012) (acknowledging that IIED may be
37
pleaded in the alternative).
In her Amended Complaint, Grizzell states that Chief Ward “intentionally told others
that Plaintiff Grizzell had made false allegations of sexual harassment against him and that
she was not mentally stable was outrageous and intolerable,” and as a result, “Grizzell
suffered severe emotional distress.” (Doc. # 10 at 12). As the Alexandria Defendants point
out, Chief Ward’s alleged statements about her mental health also form the basis of her
defamation claim. (Doc. # 26 at 24-25). Because this conduct forms the basis for the more
traditional defamation tort, Grizzell cannot base her IIED claim on the same conduct,
regardless of whether her defamation claim is ultimately successful. See Rigazio, 853
S.W.2d at 299 (dismissing plaintiff’s IIED claim even though all traditional torts were timebarred under the statute of limitations).
Grizzell attempts to save the other half of her IIED claim by suggesting that Chief
Ward’s statements about Grizzell’s false allegations of sexual harassment are not included
in her defamation claim. The Court suspects that this underlying conduct also sounds in
defamation, which would preclude Grizzell from recovering under an IIED theory. However,
out of an abundance of caution, the Court will assume that IIED for this conduct is available
to Grizzell.
b.
Outrageous Conduct
Under Kentucky law, “[o]ne who by extreme and outrageous conduct intentionally
or recklessly causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
See Restatement (Second) of Torts § 46. Kentucky courts have also adopted the following
commentary to the Restatement:
38
Extreme and outrageous conduct. The cases thus far decided have found
liability only where the defendant’s conduct has been extreme and
outrageous. It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by
“malice,” or a degree of aggravation which would entitle the plaintiff to
punitive damages for another tort. Liability has been found only where the
conduct has been so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally, the
case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to
exclaim, “Outrageous!”
The liability clearly does not extend to mere insults, indignities, threats,
annoyances, petty oppression, and other trivialities. The rough edges of our
society are still in need of a good deal of filing down, and in the meantime,
plaintiffs will necessarily be expected and required to be hardened to a
certain amount of rough language, and to occasional acts that are definitely
inconsiderate and unkind. There is no reason for the law to intervene in
every case where some one’s feelings are hurt. There must still be freedom
to express an unflattering opinion, and some safety valve must be left
through which irascible tempers may blow off relatively harmless steam . . .
Id.
Stated another way, outrageous conduct is defined as that which “is a deviation from
all reasonable bounds of decency and is utterly intolerable in a civilized community.” Craft
v. Rice, 671 S.W.2d 247, 250-51 (Ky. 1984) (finding that the tortfeasor’s conduct was
outrageous where he kept a woman under surveillance, told her on CB radio that her
husband would be put in jail and drove so as to force her into an opposing lane of traffic).
Accord Humana of Ky. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990) (finding that nurse’s conduct
was “not intentional, outrageous, or reckless under the standards set out in Craft and the
Restatement” where she yelled at patient to “shut up” and informed her that her stillborn
baby would be disposed of in the hospital).
39
In support of her claim, Grizzell states that “Defendant Ward questioned his
employees over the allegations that Plaintiff Grizzell discussed seeking confirmation that
he had never made any of the alleged comments. Comments that he later admitted to
making when deposed.” (Doc. # 27-1 at 22). This statement takes some liberties with the
record, as Chief Ward seems to inquire about the offensiveness of his comments rather
than their content. (Doc. # 33 at 33-34). More importantly, even if Chief Ward told other
co-workers that Grizzell had falsely accused him of sexual harassment, Grizzell makes no
effort to explain how this qualifies as the kind of outrageous conduct recoverable under
IIED.
While the alleged conduct may amount to more than “indignities, threats,
annoyances, [and] petty oppression,” it is not by much. It is certainly not so beyond the
bounds of decency as to justify recovery on this tort. For these reasons, the Alexandria
Defendants are entitled to summary judgment on Grizzell’s IIED claim.
IV.
Conclusion
Accordingly, for reasons stated herein,
IT IS ORDERED as follows:
(1)
Grizzell’s Motion for Partial Summary Judgment (Doc. # 25) be, and is,
hereby DENIED;
(2)
The Alexandria Defendants’ Motion for Summary Judgment (Doc. # 26) be,
and is, hereby GRANTED;
(3)
A Judgment shall be entered contemporaneously herewith.
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This 1st day of June, 2015.
G:\DATA\Opinions\Covington\2014\14-50 MOO granting D MSJ.wpd
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