Mengelkamp v. Lake Metropolitan Housing Authority et al
Filing
59
Opinion and Order signed by Judge James S. Gwin on 9/5/12 granting in part and denying in part defendants' motion for summary judgment. (Related Doc. 31 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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LINDA MENGELKAMP,
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Plaintiff,
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v.
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LAKE METROPOLITAN HOUSING
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AUTHORITY, et al.,
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Defendant.
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CASE NO. 1:11-CV-2589
OPINION & ORDER
[Resolving Doc. No. 31]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Linda Mengelkamp filed this lawsuit against her former employers—Defendant
Lake Metropolitan Housing Authority (LMHA) and its Board of Commissioners—and her former
direct supervisor—Defendant Steven Knotts—claiming, among other things, that Defendants broke
the law when they fired her for investigating and supporting allegations of gender discrimination and
sexual harassment in the workplace. See [Doc. 3]. Defendants have moved for summary judgment
on each of Mengelkamp’s claims, see [Doc. 31], and Mengelkamp partly opposes that motion,
see [Doc. 33]. For the following reasons, the Court GRANTS IN PART and DENIES IN PART
Defendants’ motion for summary judgment.
I.
At the outset, the Court must do some procedural housekeeping. Mengelkamp’s complaint
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asserted four causes of action: (1) retaliatory discharge, in violation of 42 U.S.C. § 2000e-3(a) and
Ohio Rev. Code § 4112.02(I); (2) violation of Mengelkamp’s First Amendment right to speak; (3)
breach of contract, in violation of Ohio law; and (4) violation of Mengelkamp’s right to due process.
See [Doc. 3]. Defendants’ motion for summary judgment addressed each of Mengelkamp’s claims.
And, more importantly, Defendants identified the “particular parts” of the summary-judgment record
that Defendants say entitle them to judgment on those claims.
Fed. R. Civ. P. 56(c)(1);
see [Doc. 31].
Mengelkamp’s response was not so thorough. Her introduction reads: “There are other
violations of law alleged in the Complaint and supported by the evidence, but it is the retaliatory
discharge claim, as pled in the First Count of the Complaint, that is the center of this dispute.
Accordingly the plaintiff will confine her brief to a defense of the First Count.” [Doc. 33, at 2]. And
so she did.
Whether Mengelkamp intended to abandon counts two through four of her complaint is hard
to say. But she has. Once a defendant moves for summary judgment and supports that request by
identifying the parts of the record demonstrating why the defendant is entitled to judgment, the
plaintiff must respond in kind. See Fed. R. Civ. P. 56(c)(1). It’s not enough to answer that the
“violations of law alleged in the Complaint [are] supported by the evidence.” [Doc. 33, at 2].
Accordingly, the Court GRANTS summary judgment to Defendants on counts two, three, and four.
II.
Remaining, then, is Mengelkamp’s retaliatory-discharge claim, to which she devoted her
summary-judgment opposition brief. Both federal and Ohio law prohibit an employer from
discriminating against an employee for opposing sexual harassment or gender discrimination in the
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workplace. Mengelkamp says Defendants fired her for opposing just such practices. And she says
she can prove it to a jury with this evidence:
Defendants hired Mengelkamp in September 2009 as the Administrative Office Manager for
the Lake Metropolitan Housing Authority. That role made Mengelkamp the Human Resource
Coordinator for the office, which required her to “assist[], guide[], and train[] management staff on
matters regarding employee relations issues (e.g., interviewing, hiring, promotions, terminations,
safety, corrective action/discipline, etc.).” [Doc. 31-1]. It also made her the office’s Equal
Employment Opportunity (EEO) coordinator. Id.
On March 8, 2010, just six months into Mengelkamp’s employment with Defendants, her
direct supervisor—Defendant Steven Knotts—evaluated her as “truly an asset to LMHA.” [Doc. 312]. He wrote: “working with Linda is a pleasure and it feels as if we have worked together for many
years.” Id. And he gave her a perfect evaluation score: 100 out of 100. Id. But two months later,
Knotts fired Mengelkamp for “insubordination,” “[f]ailure to satisfactorily perform assigned duties,”
“[f]ailure to perform job responsibilities and conduct [her]self with honesty and integrity,” and “not
treating employees with dignity courtesy, professionalism and respect.” [Doc. 33-9].
What happened in the two-month period between Mengelkamp’s perfect evaluation and her
firing is a matter of some dispute. But on two things all are agreed: First, on March 9, 2010, LMHA
employee Patricia England accused Defendant Knotts of gender discrimination, in particular, of
“targeting her . . . because she is a strong, intelligent female,” [Doc. 33-2]; and second, on April 29,
2010, LMHA employee Erica Peavy accused an outside vendor of sexual harassment. See [Docs. 31,
at 5-6 & 33, at 3-5]. Mengelkamp, as was her duty, investigated both claims, and she raised both
claims with Defendant Knotts.
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According to Mengelkamp, she resolved England’s complaint against Knotts informally in
a meeting between Mengelkamp, England, and Knotts. At the end of that meeting, Mengelkamp told
Knotts that she believed his “aggressive reactions toward issue are making some of the staff feel
uneasy and if this behavior toward [England] does not stop [Mengelkamp] will be forced to contact
the EEOC.” [Doc. 33-2].
Mengelkamp took a more formal approach with Peavy’s complaint against the outside
vendor. She interviewed witnesses and collected their statements, and she reached out to the
Housing Authority’s outside consultant on personnel matters. According to Mengelkamp, though,
Knotts interfered with her investigation, at one point telling her that he “believe[d] [the accused
outside vendor] and not Mrs. Peavy.” [Doc. 33-3]. When Mengelkamp concluded her investigation
and issued her final report on May 11, 2010, she told Knotts she had “concerns” that “he had
compromised the objectivity of the investigation, or the appearance of objectivity, and that this put
the agency at risk unnecessarily.” [Doc. 33-7].
Knotts fired Mengelkamp six days later. [Doc. 33-9]. In a near-contemporaneous email to
the Housing Authority’s personnel consultant, Knotts lamented “the false [gender-discrimination]
claims being made by folks here.” [Doc. 33-8].
III.
Title 42, United States Code, Section 2000e-3(a) (also known as Title VII) prohibits an
employer from discriminating against its employee “because [the employee] has opposed any
practice made an unlawful employment practice by this subchapter, [e.g., gender discrimination,]
or because [the employee] has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” So does Ohio Revised Code Section
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4112.02(I). (Because the Ohio Supreme Court “has held that an action under Ohio Revised Code
§ 4112 mirrors that under Title VII,” the Court can and “will analyze [Mengelkamp’s] state and
federal claims of illegal retaliation solely under Title VII. Abbott v. Crown Motor Co., Inc., 348 F.3d
537, 541 (6th Cir. 2003).)
To succeed on her Title VII retaliation claim, Mengelkamp—who lacks direct evidence of
retaliation—must prove her case circumstantially. And the McDonnell Douglas burden-shifting
framework applies. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). At the first step,
Mengelkamp must show a prima facie case of retaliation: (1) that she engaged in an activity
protected by Title VII; (2) that Defendants knew she engaged in the protected activity; (3) that
Defendants thereafter subjected her to adverse employment action; and (4) that a causal connection
exists between her protected activity and the adverse employment action. See Abbott, 348 F.3d at
542. If she shows a prima facie case, then Defendants need to offer a legitimate, non-discriminatory
reason for the adverse employment action. See id. If they do so, Mengelkamp will then need to
show that Defendants’ offered reason is a mere pretext for retaliation. See id.
A.
As this case illustrates, it is not difficult for a plaintiff to demonstrate a prima facie case of
retaliation. Title VII contemplates two types of protected activity:
(1) opposing unlawful
employment practices; and (2) participating in “in any manner in an investigation, proceeding, or
hearing under” Title VII. Defendants argue that Mengelkamp was not engaged in protected activity
because her internal investigations did not “occur[] pursuant to a pending EEOC charge.” Id. That’s
only half right. It is true that Mengelkamp did not conduct her investigations pursuant to a pending
EEOC charge, and it may also be true that internal investigations conducted apart from a formal
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EEOC charge are not protected by Title VII. See id. But Mengelkamp’s investigation and, more
importantly, her efforts to stem and to remedy gender discrimination and sexual harassment at
LMHA—including by threatening Defendant Knotts with an EEOC filing—are properly
characterized as “oppos[ition]” to unlawful employment practices. 42 U.S.C. § 2000e-3(a). A case
on which Defendants rely makes this very point. See Booker v. Brown & Williamson Tobacco Co.,
Inc., 879 F.2d 1304, 1313 n.3 (6th Cir. 1989) (“[M]erely threatening to file a charge should not be
construed under the participation clause. To do so would blur the distinction between opposition
to unlawful practices and participation in proceedings. Thus, threats to institute proceedings should
be considered under the balancing approach of the opposition clause.”).
And so long as
Mengelkamp had a “good faith belief that the practice[s] [were] unlawful,” her efforts as LMHA’s
Human Resource Coordinator were protected by Title VII. Id. at 1312-13.1/
With that, the remainder of Mengelkamp’s prima facie case falls into place. Defendant
Knotts knew Mengelkamp was actively opposing gender discrimination at LMHA—she told him so.
And soon after that, he fired her. Moreover, the short period of time between Mengelkamp’s
protected activity and her firing—when combined with Knotts’s startlingly recent praise of her work
and his comments on the validity of the “gender issue[s]” Mengelkamp was investigating, [Doc. 338]—gives rise to the inference that Knotts fired Mengelkamp because she engaged in that protected
activity. Accordingly, Mengelkamp has shown a prima facie case of retaliation.
1/
Defendants argue that Mengelkamp cannot proceed with an “opposition clause” claim because her complaint
references only the “participation clause.” See [Doc. 35, at 2]. The Court does not read Mengelkamp’s complaint so
narrowly. At several points Mengelkamp alleged that Defendants retaliated against her because of “her support and
investigation of claims of gender based discrimination and sexual harassment in the workplace,” [Doc. 3, ¶ 6] (emphasis
supplied), and both the opposition and participation clause are contained in the same sections of the statutes Mengelkamp
cited in her complaint. See id. ¶ 26; 42 U.S.C. § 2000e-3(a); Ohio Rev. Code §4112.02(I).
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B.
At this point the Court would ordinarily look to see whether Defendants have offered a
legitimate, non-discriminatory reason for Mengelkamp’s firing. It will not do so here.
Defendants’ motion for summary judgment argued that Mengelkamp’s retaliation claim
failed because she could not demonstrate a prima facie case. But Defendants never argued—except
blithely and in passing—that a legitimate, non-discriminatory reason justified Mengelkamp’s firing.
Although Defendants’ motion is littered with statements that Mengelkamp “was terminated for
lawful reasons,” see, e.g., [Doc. 31, at 13], nowhere do Defendants’ argue that point in any serious
way. In fact, nowhere in their opening brief do Defendants even point out that the McDonnell
Douglas burden-shifting framework applies to Mengelkamp’s retaliation claim.
It’s not until page fourteen of their reply brief that Defendants finally raise the issue.
See [Doc. 35, at 14]. And that’s much too late. Defendants chose to lie in wait with those arguments
and, having done so, must save them for trial. Reply briefs cannot raise novel arguments that do not
directly respond to some position advanced by the other party.
In any event, the legitimate, non-discriminatory reasons Defendants ultimately did offer
would not entitle them to summary judgment. Generally, Defendants say Mengelkamp behaved
unprofessionally, and they point to complaints from other employees that Mengelkamp did not keep
confidences. See [Doc. 33-9]. But was that the reason Knotts fired her, or is it merely a pretext for
unlawful retaliation? All but perhaps one of the employee complaints was written between May 10
and May 13, 2010, id.,2/ just days before the firing, and as one of the complaining employees put it,
Knotts called her to say “[t]hat he had received some disturbing information regarding . . .
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One was undated.
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[Mengelkamp] . . . [and] he was collecting information and requesting written statements,” [Doc. 3317]. Put this with Knotts’s expressed frustration at what he saw as “false [gender-discrimination]
claims being made by folks here,” [Doc. 33-8], and a jury could conclude that Defendants’ belatedly
offered non-discriminatory reasons for firing Mengelkamp were pretextual. Accordingly, summary
judgment on Mengelkamp’s retaliation claim is inappropriate.
III.
For these reasons, the Court GRANTS IN PART and DENIES IN PART Defendants’
motion for summary judgment.
IT IS SO ORDERED.
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Dated: September 5, 2012
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