Freeman v. Shaker Heights City Schools et al
Memorandum Opinion and Order: The Motion for Summary Judgment of defendants Shaker Heights City Schools, Cindy Gorfido, Dr. Robert Kreiner, and Dr. Mark Freeman is granted. Judge Patricia A. Gaughan on 8/18/14. (LC,S) re 18
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Shaker Heights City Schools, et al.,
CASE NO. 1:14 CV 308
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon the Motion for Summary Judgment of defendants
Shaker Heights City Schools, Cindy Gorfido, Dr. Robert Kreiner, and Dr. Mark Freeman (Doc.
18). The issue before this Court is whether plaintiff’s Complaint is barred by the doctrine of res
judicata. For the following reasons, the motion is GRANTED.
Plaintiff filed her Complaint in the Cuyahoga County Common Pleas Court against
defendants, Shaker Heights City Schools, AVI Foodsystems, Inc., John Payiavlas, Cindy
Gorfido, Dr. Robert Kreiner, and Dr. Mark Freeman. Plaintiff asserted 11 claims. The action
was removed to this Court based on a federal question. Subsequently, this Court granted the
unopposed Motion to Dismiss filed by defendants AVI Foodsystems, Inc. and John Payiavlas.
Plaintiff then moved to dismiss all other causes of action except Counts I (Retaliation) and XI
(Civil Conspiracy). This Court entered that dismissal.
This Case arises out of plaintiff’s former employment with defendants. Plaintiff alleges
the following. She was hired by the Shaker Heights School System in 1992. In May 2009,
plaintiff was refused an interview for the position of Cafeteria Manager. Plaintiff complained of
racial discrimination under Title VII. In May 2010, plaintiff was refused an interview for three
separate job openings in the custodial and grounds crew department. In June 2010, plaintiff filed
a charge with the Equal Employment Opportunity Commission (EEOC) for discrimination by
Shaker Heights. In August 2010, Shaker Heights outsourced the cafeteria department to AVI.
Despite AVI’s promise to hire all current food service employees of the Shaker Heights School
System, plaintiff was terminated shortly after filing a charge of discrimination against Shaker
Heights and plaintiff was initially not re-hired by AVI. In December 2010, plaintiff filed an
EEOC charge for AVI’s discrimination against her. In February 2011, in retaliation for the
recent charge, plaintiff was denied a promotion to the position of head cook.
Plaintiff filed an earlier Complaint against the Shaker Heights School District in this
Court, Eunice Freeman v. Shaker Heights City School District, Case No. 1:11 CV 1154.1 That
Complaint also alleged that plaintiff was employed by the Shaker Schools from 1991 until the
Plaintiff also previously filed a Complaint against AVI, Eunice Freeman v. AVI
Foodsystems, Inc., 1:12 CV 300 alleging retaliation for AVI’s decision to initially
not hire plaintiff in 2010, and then to fail to promote her and reduce her hours
thereafter. This Court granted summary judgment to defendant.
Cafeteria Department was outsourced to AVI Foods in June 2010. Shaker Heights failed to
promote plaintiff to the position of Cafeteria Manager in 2009 based on her race and gender, and
plaintiff was not initially hired by AVI in 2010 in retaliation for filing an EEOC charge. This
Court sua sponte dismissed plaintiff’s race and gender claims, and later granted defendant’s
motion to dismiss the retaliation claim. On appeal to the United States Court of Appeals for the
Sixth Circuit, the dismissal of the gender and retaliation claims was upheld. The Sixth Circuit
remanded the race discrimination claim based on the 2009 failure to promote. By Memorandum
of Opinion and Order, this Court granted summary judgment to defendant on that claim.
This matter is now before the Court upon defendants’ Motion for Summary Judgment.
Standard of Review
Summary Judgment is appropriate when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376,
378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material
facts rests with the moving party:
[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits,” if any, which it believes demonstrates the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution
will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Accordingly, the nonmoving party must present “significant probative evidence” to demonstrate
that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip
Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may not simply rely on
its pleading, but must “produce evidence that results in a conflict of material fact to be solved by
a jury.” Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
The evidence, all facts, and any inferences that may permissibly be drawn from the facts
must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence is “merely
colorable” and not “significantly probative,” the court may decide the legal issue and grant
summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).
Defendants move for summary judgment on the basis that plaintiff’s Complaint is barred
by the doctrine of res judicata due to the filing of her original Complaint which was dismissed
on the merits. Defendants additionally argue that even reaching the merits, plaintiff’s two
remaining claims fail because plaintiff did not exhaust her administrative remedies as to her
retaliation claim and the intra-corporate conspiracy doctrine bars the civil conspiracy claim.
Finally, defendants contend that two additional procedural defects bar plaintiff’s claims- the
statute of limitations and the failure to serve Dr. Kreiner.
In response, plaintiff completely fails to address res judicata. In addition to ignoring the
argument that this procedural doctrine bars her Complaint, plaintiff proceeds to the merits of her
retaliation claim only and fails to mention or discuss her civil conspiracy claim. For the
following reasons, the Court finds that plaintiff’s Complaint is barred by res judicata.
Therefore, the Court need not proceed to the merits of the retaliation and civil conspiracy claims.
Res judicata involves both claim preclusion and issue preclusion. Claim preclusion
“makes an existing final judgment or decree between the parties to litigation ... conclusive as to
all claims which were or might have been litigated in a first lawsuit.” Carroll v. City of
Cleveland, 2013 WL 1395900 (6th Cir. April 5, 2013) (quoting Nat'l. Amusements, Inc. v. City of
Springdale, 53 Ohio St.3d 60 (1990)). “Under Ohio law, a valid, final judgment rendered upon
the merits bars all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.” Id. (citing Grava v. Parkman
Twp., 73 Ohio St.3d 379 (1995)). Four elements are required to establish claim preclusion:
(1) a prior final, valid decision on the merits by a court of competent jurisdiction.
(2) a second action involving the same parties, or their privies, as the first.
(3) a second action raising claims that were or could have been litigated in the first
(4) a second action arising out of the transaction or occurrence that was the subject matter
of the previous action.
Id. (citing Hapgood v. City of Warren, 127 F.3d 490 (6th Cir. 1997)). The party asserting claim
preclusion bears the burden of proof. Id. (citations omitted). Defendants maintain that each
element is met. This Court agrees.
There was a prior final, valid decision on the merits issued by this Court when it granted
the defendant’s motion for summary in the previous case (Case No. 1:11 CV 1154) and entered
judgment. Plaintiff’s present Complaint involves the same parties, or their privies, as her
previously- filed Complaint. Plaintiff now names Shaker Heights City Schools as well as three
former administrators of the Shaker Heights City School District Board of Education (Kreiner,
Freeman, and Gorfido) as defendants. Plaintiff’s former Complaint named as defendant Shaker
Heights City School District. As administrators, Kreiner, Freeman, and Gorfido are clearly in
privity with the Shaker Heights City Schools. Brown v. Dayton, 89 Ohio St.3d 245, 248, 730
N.E.2d 958 (2000) (“We have applied a broad definition to determine whether the relationship
between the parties is close enough to invoke the doctrine [of res judicata]. Thus, a mutuality of
interest, including an identity of desired result, may create privity.” ) Plaintiff’s claims herein
were or could have been litigated in the first action as they rely on the same facts as the first
Complaint. Finally, the present action clearly arises out of the transaction or occurrence that was
the subject matter of the previous action given that both Complaints are based on the same 2009
and 2010 employment decisions made by the Shaker Heights City Schools.
For these reasons, plaintiff’s Complaint is barred by res judicata.2
For the foregoing reasons, the Motion for Summary Judgment of defendants Shaker
Even assuming the Court proceeded further, which it need not do, defendants
demonstrate that plaintiff failed to administratively exhaust her retaliation claim.
Plaintiff does not address this argument and, therefore, fails to dispute that she did
not exhaust. Nor does plaintiff dispute that the statute of limitations bars her
claims. Additionally, plaintiff does not respond to defendant’s argument that the
civil conspiracy claim fails on the merits. Summary judgment is merited for these
reasons as well.
Heights City Schools, Cindy Gorfido, Dr. Robert Kreiner, and Dr. Mark Freeman is granted.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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