Ryan v. Kentucky Department of Corrections Western Regional Traning Center
Filing
42
MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 8/11/2016; re 38 MOTION for Summary Judgment filed by Kentucky Department of Corrections Western Regional Traning Center ; a separate order and judgment shall issue.cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:14-CV-89-TBR
ROSEMARY RYAN
Plaintiff
v.
KENTUCKY DEPARTMENT OF CORRECTIONS,
WESTERN REGIONAL TRAINING CENTER,
AND LADONNA THOMPSON, COMMISSIONER
Defendants
MEMORANDUM OPINION
This matter comes before the Court upon Defendants Kentucky Department of
Corrections (“DOC”), Western Regional Training Center (“WRTC”), and Ladonna Thompson’s
Motion for Summary Judgment. (Docket No. 38.) Plaintiff Rosemary Ryan has responded,
(Docket No. 39), and Defendants have replied, (Docket No. 41). Fully briefed, this matter is ripe
for adjudication. For the reasons enumerated below, the Court will GRANT Defendants’ Motion.
Factual Background
Plaintiff Rosemary Ryan was a Corrections Training Instructor at the Western Region
Training Center for the Department of Corrections, Division of Training for more than twentyfive years. (Docket No. 1 at 1-2.)
On or about August 16, 2011, Ms. Ryan sent a text message to her immediate supervisor,
WRTC Branch Manager, Donnie Youngblood, stating the following: “I got tased . . . MF . . . it
hurt.” (Docket Nos. 38 at 2; 38-2 at 1; 39 at 1.) Mr. Youngblood responded via text stating,
“Guess you are not in the 20%.” (Docket Nos. 38 at 2; 38-2 at 1; 38-5 at 9; 39 at 2.) Mr.
Youngblood’s comment was in reference to a prior conversation “amongst the training staff that
1
approximately twenty percent (20%) of women who are tased experience some sort of sexual
response from the experience.” (Docket Nos. 38 at 2; 38-2 at 1; 38-5 at 9; 39 at 2.) Several hours
later, Ms. Ryan sent a reply to Mr. Youngblood stating, “That’s inappropriate for my supervisor
to ask and not your concern.” (Docket No. 38-3 at 1.) The conversation appears to have ended
when Mr. Youngblood told her via text, “I really wasn’t asking. It was rhetorical humor. Sorry if
you were offended.” (Docket No. 38-3 at 1.)
Ms. Ryan then told Steven Faulkner, her second line supervisor, about the text exchange,
and Mr. Faulkner filed a report with regards to the incident. (Docket Nos. 38 at 2; 39 at 2.) The
DOC conducted an investigation into the incident and issued a formal reprimand to Mr.
Youngblood on December 29, 2011. (Docket No. 38-3 at 1.) In the formal reprimand, the DOC
informed Mr. Youngblood that his “initial response to Ms. Ryan’s initial text was inappropriate
for a supervisor to make to a subordinate. In the future, use better judgment when dealing with
Ms. Ryan . . . [and] limit your future communication with Ms. Ryan to official business during
duty hours . . . .” (Docket No. 38-3 at 1.)
Following his formal reprimand, Mr. Youngblood contacted attorney Don Thomas who
sent a letter to Mr. Youngblood’s supervisor Col. Chris Kleymeyer on January 11, 2012. (Docket
No. 38-5 at 9.) In the letter, Mr. Thomas criticized the DOC for its failure to take action against
Ms. Ryan “for making the initial inappropriate statement and, for continually creating a hostile
work environment directed towards [his] client, Mr. Youngblood and others in the office.”
(Docket No. 38-5 at 9-10.) Additionally, Mr. Thomas requested that “the reprimand be removed
from [Mr. Youngblood’s] file and that [the DOC] reassign Ms. Ryan to another department so
the current workplace at WRTC can return to an efficient and normal operation.” (Docket No.
38-5 at 10.) Ms. Ryan contends that Mr. Youngblood’s request to have her reassigned was
2
“clearly an attempt to interfere with her job and employment and is . . . obvious and blatant
retaliation.” (Docket No. 39 at 2.)
Approximately a year after the aforementioned incident, Ms. Ryan and Mr. Youngblood
once again found themselves in conflict with one another. (Docket Nos. 38 at 3; 39 at 2.) The
conflict arose when Ms. Ryan discovered two documents that Mr. Youngblood had on his “I
drive (folder).” (Docket No. 38-5 at 1.) According to the summary of the investigation completed
by the DOC, the first document she found was a draft of Mr. Youngblood’s response to the
formal reprimand issued against him and the second document was the same draft on the official
letterhead of Mr. Youngblood’s attorney with his attorney’s signature. (Docket No. 38-5 at 6.)
Upon finding the drafts, Ms. Ryan allegedly contacted Mr. Youngblood’s supervisor, Mr.
Kleymeyer as well as KCIW Deputy Warden Wes Dawson, an uninvolved third party. (Docket
Nos. 38 at 3; 38-5 at 1, 6.) Ms. Ryan also allegedly attempted to email the drafts she found to
Warden Dawson but accidentally sent the email to Mr. Youngblood. (Docket No. 38-5 at 6.)
When she realized that she sent the email to the wrong person, Ms. Ryan apparently recalled the
message. (Docket No. 38-5 at 6.) After learning of Ms. Ryan’s actions, Mr. Youngblood
submitted a complaint to Mr. Kleymeyer alleging that Ms. Ryan accessed his “I drive . . . and
located documents that contained her name.” (Docket No. 38-5 at 6.) The DOC initiated an
investigation into the incident, which concluded in the issuance of a formal reprimand to Ms.
Ryan on February 13, 2013. (Docket Nos. 38-6 at 1; 39 at 3.) The reprimand stated that Ms.
Ryan’s attempt to send the drafts via email to Warden Dawson constituted a violation of the
Code of Ethics as the DOC characterized the drafts as “confidential information.” (Docket No.
38-6 at 1.) According to the reprimand, “[a]ny release of confidential information shall require
the prior consent of the appropriate authority within Corrections.” Id. The reprimand letter
3
cautioned Ms. Ryan to “exercise better judgment regarding confidential or privileged
information accessed while performing job-related tasks on [her] computer.” Id. Ms. Ryan
disagrees with the DOC’s characterization of the drafts she accessed and attempted to transmit
via email as “confidential information” because “[they were] not written on behalf of the
Department of Corrections nor [were they] in a private computer file.” (Docket No. 39 at 3.)
On the same day that Ms. Ryan received the written formal reprimand, she was also
informed that she was required to provide medical certification for any future absences due to
health reasons. (Docket No. 1 at 4.) Ms. Ryan contends that the requirement to submit a medical
certification form when absent for medical reasons was “unprecedented” and unnecessary as she
had over 1,000 hours of accumulated medical sick leave when the Defendants initiated the new
requirement. (Docket No. 39 at 11.) The Defendants respond that they required Ms. Ryan to
provide medical certification because her use of sick leave increased dramatically over a short
period of time. (Docket No. 38 at 5.) The parties dispute whether the Defendants requirement
that Ms. Ryan submit medical certification was permitted by the applicable state regulation, 101
KAR 2:102(2).1 (Docket Nos. 38 at 22; 39 at 11.)
Shortly after the aforementioned events, on April 8, 2013, Ms. Ryan began using the sick
leave that she had accumulated during her employment with the DOC. (Docket No. 38 at 6.) Ms.
Ryan used her available sick leave until her retirement from the DOC on November 1, 2013. Id.
at 7.
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The regulation allows the DOC to require a doctor’s note as well as a medical certification form when an employee
is absent for health reasons if the employee “is disabled by illness or injury.” (Docket Nos. 38 at 22; 39 at 11.) The
Court will not detail the parties’ arguments with regards to the regulation nor will it decide whether Ms. Ryan was
properly subject to this requirement based upon the regulation as that does not affect its analysis of whether or not
the Defendants’ requirement that Ms. Ryan provide medical certification constituted an adverse employment action.
4
Procedural Background
On March 11, 2013, Ms. Ryan filed four internal grievances with the DOC, advancing
claims similar to those in this litigation. (Docket No. 38-8 at 1-12.) Ms. Ryan’s grievances were
ultimately denied by LaDonna Thompson, the Commissioner of the Department of Corrections,
as meritless on April 23, 2013. (Docket Nos. 38 at 4-5; 38-14 at 6, 11, 29.) Ms. Ryan appealed
Ms. Thompson’s denial of her grievances to the Kentucky Personnel Board on May 22, 2013.
(Docket Nos. 38 at 7; 38-14.) The parties disagree about the outcome of Ms. Ryan’s appeals
before the Personnel Board. Ms. Ryan states that she withdrew all of her appeals with the
Personnel Board on March 28, 2014. (Docket No. 39 at 4.) Alternatively, the Defendants contend
that on May 7, 2014 the Personnel Board ordered that all of Ms. Ryan’s appeals against the DOC
be dismissed. (Docket No. 38 at 7.)
In addition to the four grievances Ms. Ryan filed with the DOC, she also filed a Charge
of Discrimination with the EEOC on or about June 13, 2013 and received her right to sue letter
from the EEOC on February 13, 2014. (Docket No. 38 at 8.) Then, on May 5, 2014, Ms. Ryan
filed her Complaint in this Court. (Docket No. 1.)
Legal Standard
Summary judgment is appropriate when the record, viewed in the light most favorable to
the nonmoving party, reveals “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of
material fact exists where “there is sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
Court “may not make credibility determinations nor weigh the evidence when determining
5
whether an issue of fact remains for trial.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (first citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001); then citing
Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999)). “The ultimate question is ‘whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’” Back v. Nestlé USA, Inc., 694 F.3d
571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 251–52).
As they are moving for summary judgment, the Defendants must shoulder the burden of
showing the absence of a genuine dispute of material fact as to at least one essential element of
Ms. Ryan’s claims. Fed. R. Civ. P. 56(c); see Laster, 746 F.3d at 726 (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)). Assuming the Defendants satisfy their burden of production,
Ms. Ryan “must—by deposition, answers to interrogatories, affidavits, and admissions on file—
show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726 (citing Celotex
Corp., 477 U.S. at 324). Keeping this standard in mind, the Court moves on to the merits.
Discussion
I.
Sex Discrimination
A plaintiff alleging sex discrimination, including for sexual harassment, may recover
under Title VII on a theory of a hostile work environment.2 Smith v. Rock-Tenn Servs., Inc., 813
F.3d 298, 307 (6th Cir. 2016) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 73 (1986));
see also Williams v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999) (“A plaintiff may
2
While Ms. Ryan’s Complaint includes a claim for sex discrimination based upon disparate treatment, (Docket No.
1 at 8), neither party directly addresses this claim in their briefing to this Court. (Docket No. 38 at 14; 39 at 5-7.)
The only mention of an additional sex discrimination claim comes from the Defendants. In their Motion, they argue
that “[a]lthough analyzed under slightly different standards, the Plaintiff also fails to state an actionable claim for
sex discrimination . . . .” (Docket No. 38 at 14.) In her Response, Ms. Ryan does not respond to this brief argument
made by the Defendants and instead bases her claim for sex discrimination entirely upon Mr. Youngblood’s alleged
sexual harassment. (Docket No. 39 at 5-7.) As Ms. Ryan does not discuss her claim for sex discrimination based
upon disparate treatment and has not provided or pointed to any evidence to support such a claim, this Court will
dismiss her claim.
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establish a violation of Title VII by proving that the discrimination based on sex created a hostile
or abusive work environment.”). For a plaintiff to establish a prima facie case of hostile work
environment based on sexual harassment, she must show by a preponderance of the evidence:
“(1) that she was a member of a protected class; (2) that she was subjected to unwelcome sexual
harassment; (3) that the harassment was based on sex; (4) that the harassment unreasonably
interfered with her work performance by creating a hostile, offensive, or intimidating work
environment; and (5) that there is a basis for employer liability.” Thornton v. Fed. Express Corp.,
530 F.3d 451, 455 (6th Cir. 2008) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)).
In her Complaint, Ms. Ryan does not state whether or not she seeks to bring her claim for
sexual harassment under Title VII or under Kentucky’s Civil Rights Act (“KCRA”). However,
this omission does not affect the Court’s analysis as the Sixth Circuit Court of Appeals has found
that, “[a] sexual harassment claim brought under the [KCRA] is to be analyzed in the same
manner as a claim brought under Title VII, its federal counterpart.” Clark v. United Parcel Serv.,
Inc., 400 F.3d 341, 347 (6th Cir. 2005) (citing Ammerman v. Bd. of Educ. of Nicholas County, 30
S.W.3d 793, 797-98 (Ky. 2000)).
Though the parties disagree as to every element other than the first element, this Court
finds the heart of this dispute to revolve around the fourth element requiring that the alleged
sexual harassment create a hostile work environment. This Court will assume without deciding
that Ms. Ryan has established the other four elements of a prima facie case for sexual
harassment, as her claim ultimately fails because she has not established that the alleged sexual
harassment created a hostile work environment.
A hostile work environment exists when “the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
7
the victim's employment and create an abusive working environment.” Nievaard v. City of Ann
Arbor, 124 F. App'x 948, 953 (6th Cir. 2005) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). To establish that a hostile work environment exists, “[b]oth an objective and subjective
test must be met; in other words, the conduct must be so severe or pervasive as to constitute a
hostile or abusive working environment both to the reasonable person and the actual victim.”
Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006) (citing Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). A court must not consider each alleged instance
of harassment in isolation but rather “must consider the totality of the circumstances in
determining whether the harassment was sufficiently severe and pervasive.” Id. (Black v. Zaring
Homes, Inc., 104 F.3d 822, 826 (6th Cir. 1997)). When considering the totality of the
circumstances, the Court must look to such things as “the frequency of the discriminatory
conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interfere[d] with an employee's performance.” Smith, 813
F.3d at 309 (quoting Randolph, 453 F.3d at 733). “Isolated incidents, however, unless extremely
serious, will not amount to discriminatory changes in the terms or conditions of employment.”
Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000).
Here, the incidents alleged by Ms. Ryan do not meet the standard required to constitute a
hostile work environment. To support her claim of sexual harassment, Ms. Ryan relies almost
exclusively upon Mr. Youngblood’s inappropriate text message in which he suggested that she
was not among the twenty percent of women who experience a sexual response when being
tased. (Docket Nos. 38-15 at 7, 61, 65; 39 at 6-7.) Ms. Ryan also points to Mr. Youngblood’s
placement of a picture of his wife in a bikini on his desk as well as a conversation in which Mr.
Youngblood allegedly told Ms. Ryan about problems with his marital sex life. (Docket Nos. 38-
8
15 at 35-39; 39 at 6-7.) According to Ms. Ryan’s deposition, the conversation regarding Mr.
Youngblood’s sex life took place before he received the written reprimand for the inappropriate
text message related to Ms. Ryan being tased. (Docket No. 38-15 at 37.) Additionally, Mr.
Youngblood turned the photograph of his wife away from sight when Ms. Ryan informed him
that it made her uncomfortable. (Docket No. 38-15 at 36.)
Based on the allegations detailed above, Ms. Ryan simply “has failed to allege a
pervasive pattern of harassment incidents.” Prechtel v. Kellogg's, No. CIV A 305CV-753-H,
2007 WL 1610575, at *3 (W.D. Ky. May 31, 2007), aff'd, 270 F. App'x 379 (6th Cir. 2008). The
Sixth Circuit has affirmed a district court’s grant of summary judgment in favor of an employer
for much more severe behavior than that alleged by Ms. Ryan in this case. Wade v. Automation
Pers. Servs., Inc., 612 Fed. App’x. 291, 298 (6th Cir. 2015) (affirming summary judgment for
inappropriate comments, one gesture, and one incident of harasser exposing her breasts); Clark,
400 F.3d at 344 (affirming district court’s grant of summary judgment where harassment
consisted of vulgar jokes of a sexual nature, two instances of placing a vibrating pager on the
plaintiff's thigh, and one incident in which harasser tried to look down the plaintiff's overalls
occurring over two and half years); Bowman, 220 F.3d at 464 (affirming district court’s grant of
summary judgment where harassment consisted of supervisor rubbing employee’s shoulders,
grabbing employee’s buttocks, touching employee’s chest and making two sexually-laden
invitations over the course of several years); Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784,
790 (6th Cir. 2000) (affirming district court’s grant of summary judgment where harassment
took place over approximately 16 months and consisted of several dirty jokes in the plaintiff's
presence; one verbal sexual advance related to the plaintiff's evaluation; a single reference to the
plaintiff as “Hot Lips” and isolated comments about the plaintiff's clothing).
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While Mr. Youngblood’s actions were at times inappropriate, this Court finds that his
actions “do[] not rise nearly to the level of being severe and pervasive.” Prechtel, 2007 WL
1610575, at *3 (emphasis added). Consequently, Ms. Ryan’s claim for sexual harassment fails as
a matter of law.
II.
Age Discrimination
“Under both the [Age Discrimination in Employment Act (“ADEA”)], 29 U.S.C. § 623,
and the KCRA, KRS § 344.040(1), employers are prohibited from discharging or otherwise
discriminating against any employee with respect to compensation, terms, conditions, or
privileges of employment because of that individual's age.” Allen v. Highlands Hosp. Corp., 545
F.3d 387, 393 (6th Cir. 2008). Claims brought pursuant to the KCRA are “analyzed in the same
manner” as claims brought pursuant to the ADEA. Id. at 393-94 (first citing Williams v. Tyco
Elec. Corp., 161 Fed. App’x. 526, 531 & n.3 (6th Cir. 2006); then citing Harker v. Fed. Land
Bank of Louisville, 679 S.W.2d 226, 229 (Ky. 1984)). A plaintiff may establish age
discrimination through either direct or circumstantial evidence. Back, 694 F.3d at 576 (first citing
Williams v. Wal–Mart Stores, Inc., 184 S.W.3d 492, 495 (Ky. 2005); then citing Provenzano v.
LCI Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011)). Here, Ms. Ryan seeks to establish a
claim for age discrimination via circumstantial evidence. (See Docket No. 39 at 7.) “A
circumstantial-evidence case involves proof that does not on its face establish discriminatory
animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.”
Back, 694 F.3d at 576 (quoting Allen, 545 F.3d at 394) (internal quotation marks omitted). The
McDonnell Douglas burden-shifting framework applies in age discrimination cases where the
plaintiff seeks to establish her case through circumstantial evidence. Blizzard v. Marion Tech.
Coll., 698 F.3d 275, 283 (6th Cir. 2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S.
10
792 (1973)). Under this framework, a plaintiff must first establish a prima facie case of age
discrimination. Once the plaintiff does so, the burden shifts to the defendant, “[who] must
articulate some legitimate, nondiscriminatory reason for the termination.” Id. (quoting
McDonnell Douglas, 411 U.S. at 802). If the defendant successfully articulates a legitimate,
nondiscriminatory reason, then the burden shifts back to the plaintiff to demonstrate that the
defendant’s “proffered reason is a pretext.” Id. (quoting Sutherland v. Mich. Dep't of Treasury,
344 F.3d 603, 615 (6th Cir. 2003)). While the burden of production shifts under the McDonnell
Douglas framework, “[t]he burden of persuasion . . . remains on the . . . plaintiff at all times to
demonstrate that age was the “but-for” cause of their employer's adverse action.” Schoonmaker
v. Spartan Graphics Leasing, LLC, 595 F.3d 261, 264 (6th Cir. 2010) (quoting Geiger v. Tower
Auto., 579 F.3d 614, 620 (6th Cir. 2009)).
To establish a prima facie case of age discrimination, a plaintiff must show that: “(1)
[s]he is a member of the protected class, that is, [s]he is at least forty years of age; (2) [s]he was
subjected to an adverse employment action; (3) [s]he was qualified for the position; and (4) [s]he
was treated differently from similarly situated employees outside the protected class.” Mitchell v.
Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004) (citations omitted). The plaintiff’s “burden
at the prima facie stage is ‘not onerous’ and ‘poses a burden easily met.’” Provenzano v. LCI
Holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011) (quoting Cline v. Catholic Diocese of Toledo,
206 F.3d 651, 661 (6th Cir. 2000)).
In this case, the Court will focus on the second element as Ms. Ryan fails to show that
she was subject to an adverse employment action and, therefore, does not establish a prima facie
case of age discrimination. This Court will assume without deciding that the other elements of a
prima facie case of age discrimination are satisfied. It is difficult for the Court to discern from
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her Response if Ms. Ryan believes it was only the requirement that she obtain medical
certification that was an adverse employment action or if she also contends that her eventual
retirement was a constructive discharge and, therefore, a second adverse employment action.
(See Docket No. 39 at 7-9.) As the Court is unsure, it will analyze whether either the medical
certification requirement or Ms. Ryan’s retirement constitute an adverse employment action.
First, with regards to the Defendants’ placement of Ms. Ryan on medical certification, the
Court finds that it does not constitute an adverse employment action. An adverse employment
action is a “materially adverse change in the terms or conditions of . . . employment because of
[the] employer's conduct.” Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004)
(quoting Kocsis v. Multi–Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996)) (internal quotation
marks omitted). “Under this standard, a ‘materially adverse’ change in employment conditions
must be more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id.
(citing Kocsis, 97 F.3d at 886) (internal quotation marks omitted). “[D]e minimis employment
actions are not materially adverse and, thus, not actionable.” Id. (quoting Bowman v. Shawnee
State Univ., 220 F.3d 456, 462 (6th Cir. 2000)). A mere “bruised ego” is not sufficient to
constitute an adverse employment action. Id. (citing White v. Burlington N. & Santa Fe Ry. Co.,
364 F.3d 789, 797 (6th Cir. 2004) (en banc)).
Here, the Defendants’ requirement that Ms. Ryan receive medical certification when
absent from work for health reasons was nothing more than “a mere inconvenience.” While such
a requirement imposed upon Ms. Ryan the responsibility to obtain excuses from her doctor when
she was absent from work for health reasons and receive medical clearance to return to work, it
did not constitute a “materially adverse” change in Ms. Ryan’s employment conditions. A
materially adverse change only occurs when there is a “significant change in employment status,
12
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” White, 364 F.3d at 798
(citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Most adverse employment
actions “inflict[] direct economic harm” on the employee. Id. (citing Ellerth, 524 U.S. at 761).
The Defendants’ imposition of the requirement that Ms. Ryan obtain medical certification when
she was absent for health reasons, simply does not rise to the level of an adverse employment
action as it did not inflict economic harm on Ms. Ryan or significantly change her employment
status.
This Court’s analysis and conclusion does not change when it considers that the first
medical certification form Ms. Ryan received from the Defendants included a one hundred
pound lifting requirement as part of her essential duties. (Docket Nos. 38-16 at 1; 39 at 8.) While
Ms. Ryan continuously points to the Defendants inclusion of this requirement as proof of
discrimination, the Court is not persuaded because the Defendants immediately removed such a
requirement from the form when Ms. Ryan brought the requirement to their attention. (Docket
No. 39 at 8.) Defendants argue that the one hundred pound lifting requirement was originally
included on the medical certification form as some employees have to “lift[] crates of
ammunition at the firing range.” (Docket No. 38 at 27.) However, when Ms. Ryan informed the
Defendants that the lifting requirement was in excess of her essential duties, the Defendants
promptly removed the requirement so the form more accurately reflected the essential duties of
her job. (Docket Nos. 38 at 27; 38-17 at 1; 39 at 8.) The duties of Ms. Ryan’s job were not
changed to include the ability to lift one hundred pounds, and she did not experience any direct
economic harm from this error on the form. There is no evidence, despite Ms. Ryan’s
suggestions to the contrary, that “[t]he [one hundred] pound requirement was directed solely to
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Ms. Ryan based on her age and the employer’s knowledge that she could not lift [one hundred]
pounds.” (Docket No. 39 at 8.) The Defendants’ inclusion and quick removal of this requirement
does not constitute an adverse employment action.
Second, concerning Ms. Ryan’s possible argument that the Defendants’ actions
constituted a constructive discharge, this Court finds such an argument unsuccessful. The Sixth
Circuit recently reaffirmed that “a plaintiff may use a constructive discharge claim to show that
he or she has suffered an adverse employment action.” Hurtt v. Int'l Servs., Inc., 627 F. App'x
414, 420 (6th Cir. 2015). “A constructive discharge occurs when the employer, rather than acting
directly, deliberately makes an employee's working conditions so intolerable that the employee is
forced into an involuntary resignation.” Laster, 746 F.3d at 727 (quoting Lopez v. S.B. Thomas,
Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)). To establish a constructive discharge, a plaintiff must
show that “(1) the employer deliberately created intolerable working conditions, as perceived by
a reasonable person; (2) the employer did so with the intention of forcing the employee to quit;
and (3) the employee actually quit.” Hurtt, 627 F. App'x at 420 (citing Savage v. Gee, 665 F.3d
732, 739 (6th Cir. 2012)). “To determine if there is a constructive discharge, both the employer's
intent and the employee's objective feelings must be examined. Savage, 665 F.3d at 739 (citing
Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999)).
Here, this Court will focus solely on the first element of constructive discharge as Ms.
Ryan fails to satisfy this element and, consequently, cannot establish she experienced a
constructive discharge as a matter of law. With regards to the first element of the constructive
discharge inquiry concerning the creation of intolerable working conditions, the Sixth Circuit has
stated the following:
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Whether a reasonable person would have [felt] compelled to resign
depends on the facts of each case, but we consider the following factors
relevant, singly or in combination: (1) demotion; (2) reduction in salary;
(3) reduction in job responsibilities; (4) reassignment to menial or
degrading work; (5) reassignment to work under a younger supervisor;
(6) badgering, harassment, or humiliation by the employer calculated to
encourage the employee's resignation; or (7) offers of early retirement or
continued employment on terms less favorable than the employee's
former status.
Laster, 746 F.3d at 728 (quoting Logan v. Denny's, Inc., 259 F.3d 558, 569 (6th Cir. 2001)).
After reviewing Ms. Ryan’s arguments and the evidence provided, the Court finds that
there is no basis for a reasonable jury to find that the Defendants created “intolerable working
conditions.” First, the Court must note that Ms. Ryan does not argue that she experienced any of
the aforementioned seven factors. (Docket No. 39 at 8-9.) To support her claim for constructive
discharge, Ms. Ryan appears to point to the Defendants’ enactment of the requirement that she
receive medical certification when absent for health reasons, her formal reprimand related to her
attempt to email the documents she found on Mr. Youngblood’s I drive to an uninvolved third
party, and Mr. Youngblood’s alleged statements regarding her retirement to other employees.
(Docket Nos. 1 at 4; 39 at 8-9.) The Court will address each of these alleged incidents below.
Concerning the Defendants’ requirement that Ms. Ryan submit a form certifying that she
was fit to return to work after an absence for medical reasons, the Court finds that it simply does
not indicate the creation of what a reasonable person would perceive as intolerable working
conditions. The required medical certification before returning to work would certainly be an
inconvenience but it would not compel a reasonable person to resign. See McLeod v. Florida,
No. 4:11-CV-496/RS-CAS, 2012 WL 2004498, at *4 (N.D. Fla. June 5, 2012) (noting that
providing medical certification is a “common practice and an employee could not reasonably
find it objectionable”); see also DaCosta v. Birmingham Water Works & Sewer Bd., 256 Fed.
15
App’x. 283, 287 (11th Cir. 2007) (finding an employer’s requirement that employee bring a
doctor’s note after being absent for an illness was not an adverse action). With regards to the
formal reprimand Ms. Ryan received, the Sixth Circuit has found that “unless [such a] letter
accompanied some other action, such as a demotion or salary reduction,” it does not constitute a
constructive discharge. Jones v. Butler Metro. Hous. Auth., 40 F. App'x 131, 137 (6th Cir. 2002)
(first citing Krause v. City Of LaCrosse, 246 F.3d 995, 1000 (7th Cir. 2001); then citing Kocsis,
97 F.3d at 882-83). Ms. Ryan did not receive a demotion or salary reduction or any other
tangible harm as a result of the formal reprimand and, therefore, the formal reprimand Ms. Ryan
received cannot support a claim for constructive discharge. Lastly, with regards to Mr.
Youngblood’s alleged statements to other employees that Ms. Ryan was retiring and offering
them her position, Ms. Ryan has provided no evidence of such statements for this Court to
consider. While Ms. Ryan states in her Response that she “expects to call witnesses at the trial to
testify [that her] position was offered to other employees while she was still employed at the
Department of Corrections,” (Docket No. 39 at 9), such an expectation is not sufficient to meet
her burden of production to defeat a motion for summary judgment. Fed. R. Civ. P. 56. Ms.
Ryan has not presented any evidence in support of her position upon which “the trier of fact
could reasonably find for [her].” Goodwin v. CSX Transp., Inc., No. 3:07-CV-00483-TBR, 2010
WL 3190745, at *1 (W.D. Ky. Aug. 11, 2010) (citing Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir.
1996)). Consequently, this Court will not consider Ms. Ryan’s unsupported allegations because
“at the summary judgment stage, [this Court] must look to the evidence and the facts, not to
labels and allegations.” Steward v. New Chrysler, 415 F. App'x 632, 640 (6th Cir. 2011).
16
As Ms. Ryan did not demonstrate that she suffered an adverse employment action, she
has failed to establish a prima facie case of age discrimination. Ms. Ryan’s age discrimination
claim fails as a matter of law.
III.
Retaliation
Under Title VII, an employer cannot discriminate against an employee because that
employee engaged in conduct protected by Title VII. See 42 U.S.C. § 2000e–3(a). Title VII
prohibits employers from discriminating against an employee “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).
“[A] Title VII retaliation claim can be established either by introducing direct evidence of
retaliation or by proffering circumstantial evidence that would support an inference of
retaliation.” Laster, 746 F.3d at 730 (quoting Imwalle v. Reliance Medical Products, Inc., 515
F.3d 531, 538 (6th Cir. 2008)) (internal quotation marks omitted).
Here, Ms. Ryan seeks to establish a claim for retaliation not by direct evidence but rather
by proffering circumstantial evidence. (Docket No. 35 at 4-7.) Consequently, this Court must
analyze her retaliation claim under the burden-shifting framework established by the Supreme
Court in McDonnell Douglas. See 411 U.S. at 800-06. In order to establish a prima facie case of
retaliation under Title VII, the plaintiff must show by a preponderance of the evidence that:
1) [s]he engaged in activity that Title VII protects; 2) defendant knew
that [s]he engaged in this protected activity; 3) the defendant
subsequently took an employment action adverse to the plaintiff; and 4)
a causal connection between the protected activity and the adverse
employment action exists
17
Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003) (first citing Strouss v. Michigan
Dep't of Corr., 250 F.3d 336, 342 (6th Cir. 2001); then citing Nguyen v. City of Cleveland, 229
F.3d 559, 563 (6th Cir. 2000)). “The burden of establishing a prima facie case in a retaliation
action is not onerous, but one easily met.” Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013)
(quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523 (6th Cir. 2008)).
Here, this Court will focus on the third element, which requires that the Defendants must
have taken an adverse employment action against Ms. Ryan. The Court will assume without
deciding, as it has done previously in this opinion, that the other elements of a prima facie case
are satisfied. Because Ms. Ryan has not established that the defendant took an adverse
employment action against her, she has not successfully established a prima facie case of
retaliation and her claim for retaliation fails as a matter of law.
Ms. Ryan argues that the following events constitute adverse employment actions against
her: (1) her placement on medical certification; (2) the inclusion of the one hundred pound lifting
requirement on first medical certification form; (3) her exclusion from annual training for the
Corrections Emergency Response Team (“CERT”); (4) the decrease in the frequency of her trips
to Frankfort, Kentucky; and (5) a workplace mediation that occurred without Ms. Ryan present.
(Docket No. 39 at 11-13.)
First with regards to Ms. Ryan’s placement on medical certification and the Defendants’
initial inclusion of a one hundred pound lifting requirement on her first medical certification
form, this Court for the reasons previously given in this opinion finds that these events do not
constitute an adverse employment action.
Concerning Ms. Ryan’s exclusion from the CERT training in 2012, the Court finds that it
also does not constitute an adverse employment action. According to Ms. Ryan, though she was
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not a member of the CERT team, she had attended the annual CERT training event for the five or
six years prior to 2012. (Docket Nos. 1 at 3; 39 at 12.) Ms. Ryan claims that she was not sent on
behalf of her employer to the CERT training in 2012 as retaliation for reporting Mr.
Youngblood’s inappropriate text message. Id. In her deposition, Ms. Ryan stated that as she had
gone in years past, she expected to attend in 2012 and scheduled her vacation time around the
event. (Docket No. 38-15 at 32, 64.) While the Court sympathizes with Ms. Ryan’s desire to
attend the training, the Sixth Circuit has found that exclusion from a training opportunity is not
an adverse employment action if the plaintiff does not suffer “any demotion, loss of pay, loss of
responsibility, or other materially adverse effect.” Creggett v. Jefferson Cty. Bd. of Educ., 491 F.
App'x 561, 2012 WL 3104508288, at *4 (6th Cir. 2012) (unpublished table decision) (citing
Lindsey v. Whirlpool Corp., 295 Fed. App’x. 758, 768 (6th Cir. 2008)). Here, Ms. Ryan has not
suggested nor has she produced any evidence that would suggest that she suffered any of the
aforementioned materially adverse effects as a result of her exclusion from the CERT training.
(See Docket No. 39 at 11-12.) “Without evidence of this sort, mere denial of a supplemental
training, even if other employees were allowed to attend the training, is not an adverse
employment action.” Creggett, 2012 WL 3104508288, at *4.
With regards to Ms. Ryan’s contention that she was not allowed to continue to travel to
Frankfort, Kentucky on a bi-weekly basis to work on a project referred to in her deposition as
ACA accreditation, the Court finds that this change does not constitute an adverse employment
action. (Docket No. 38-15 at 64.) In her deposition, Ms. Ryan states that there was no benefit to
participating in the ACA accreditation project “other than working a lot of hours for it.” (Docket
No. 38-15 at 33.) When Ms. Ryan was no longer assigned to work on the ACA accreditation
project, she felt that the decision was retaliatory as “[i]t was something that [she] truly enjoyed
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doing.” Id. at 33-34. As any change in her participation in the ACA accreditation project, did not
result in a “materially adverse change in the terms and conditions of [her] employment,” it
cannot constitute an adverse employment action. Smith v. City of Salem, Ohio, 378 F.3d 566, 575
(6th Cir. 2004) (quoting Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999)). This change
was simply “an alteration of job responsibilities,” and Ms. Ryan has not provided any evidence
that this alteration adversely affected her compensation or benefits. Id. (citations omitted). In
other words, the change in Ms. Ryan’s responsibilities did not “inflict[] direct economic harm”
upon her, as is the case with most adverse employment actions. White, 364 F.3d at 798 (citing
Ellerth, 524 U.S. at 761).
Lastly, concerning the Defendants’ arrangement of a workplace mediation, the Court
finds that such an action does not at all constitute an adverse employment action. According to
the Defendants, the DOC contacted the Personnel Cabinet, an Executive Branch state agency
unaffiliated with the DOC, and requested a team of mediators come to the WRTC to meet with
the Ms. Ryan, the Defendants, and their co-workers. (Docket No. 38 at 27.) The Defendants
contend that Ms. Ryan was invited to participate but declined the invitation. Id. Ms. Ryan
disagrees and contends that she was never invited to participate in the mediation. (Docket No. 39
at 13.) Ms. Ryan states that the report from the mediators is “biased in its results” and that “the
mediation ostracized [her] from her department and peers.” Id. Whether Ms. Ryan was or was
not invited to the mediation does not affect this Court’s analysis because the mediation was not
an adverse employment action. As this Court has previously noted, an adverse employment
action involves changes in the terms of employment, such as “hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing significant
change in benefits,” and usually “inflicts direct economic harm.” Ellerth, 524 U.S. at 761; White
20
v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008); see also Hashemian v. Louisville
Reg'l Airport Auth., No. 3:09-CV-951-R, 2013 WL 1788473, at *8 (W.D. Ky. Apr. 26, 2013),
aff'd (June 13, 2014) (finding that employer requiring and paying for plaintiff to undergo conflict
resolution counseling was not an adverse employment action). The Defendants’ decision to hold
a mediation to try to improve or resolve the conflicts they had with Ms. Ryan simply does not
constitute an adverse employment action under the aforementioned standard.
As Ms. Ryan has failed to establish a prima facie case of retaliation, her claim for
retaliation fails as a matter of law.
Conclusion
For the aforementioned reasons, Defendants’ Motion for Summary Judgment is
GRANTED. (Docket No. 38.)
An appropriate Order and Judgment will issue separate from this Memorandum Opinion.
August 11, 2016
cc: Counsel
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