Willis v. Cleveland Metropolitan School District et al
Filing
43
Memorandum Opinion and Order Because Mr. Willis fails to satisfy his prima facie burden on Counts 1, 2, 3, and 5, the Court grants Defendants' motion for summary judgment (ECF No. 35 ) as to those Counts. Because a genuine dispute of material fact exists with respect to Mr. Willis's retaliation claim, the Court denies summary judgment as to Count 4. Judge Benita Y. Pearson on 9/7/2018. (S,L)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DONALD WILLIS,
Plaintiff,
v.
CLEVELAND METROPOLITAN SCHOOL
DISTRICT, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
CASE NO. 1:17CV1112
JUDGE BENITA Y. PEARSON
ORDER
[Resolving ECF No. 35]
Pending before the Court is Defendants’ Motion for Summary Judgment (ECF No. 35).
In his Complaint (ECF No. 1), Plaintiff Donald Willis alleges race-based employment
discrimination under Title VII of the federal Civil Rights Act, 42 U.S.C. § 2000e-2, et seq., and
Ohio Rev. Code § 4112.02. He also alleges unlawful retaliation, Ohio Rev. Code § 4112.02(I),
and intentional infliction of emotional distress under Ohio common law. For the reasons that
follow, the Court grants Defendants’ motion in part and denies it in part.
I. Disputed and Undisputed Facts
Mr. Willis, an African-American man, was a teacher at Paul Revere School in Cleveland
Metropolitan School District (“School District”) from August 2012 until June 2015. ECF No. 25
at PageID#: 170, ¶ 7. More precisely, Mr. Willis served as an “Intervention Specialist,” in which
he taught students in sixth, seventh, and eighth grade. Id. At any given time, he was responsible
for teaching between four and nine students who were “emotionally disturbed,” ECF No. 26-1 at
PageID#: 311-12, 430-31; ECF No. 33-1 at PageID#: 1617, and he was responsible for drafting
(1:17cv1112)
and maintaining their individualized education plans. ECF No. 26-1 at PageID#: 380; ECF No.
33-1 at PageID#: 1570-71. In his position as an intervention specialist, Mr. Willis was part of a
team that was responsible for drafting and maintaining students’ “behavior intervention plans”
when they were necessary. ECF No. 33-1 at PageID#: 1527-28.
Defendant Christopher Myslenski, a Caucasian man, was the Assistant Principal at Paul
Revere School during the 2012-2013 school year, and he was the Principal during the 2013-2014
and 2014-2015 school years. ECF No. 25 at PageID#: 170. For all three of those school years,
Mr. Myslenski was Mr. Willis’s supervisor. Id. As Mr. Willis’s supervisor, he performed
announced and unannounced observations of Mr. Willis’s classroom and evaluated him based on
the Teacher Development and Evaluation System (“TDES”). Id.; see also, e.g., ECF No. 33-47.
The TDES framework assessed teachers in four categories: (1) planning and preparation, (2)
classroom environment, (3) teaching and learning, and (4) professional responsibilities. ECF No.
33-1 at PageID#: 1386; see also, e.g., ECF No. 35-3.
Mr. Willis alleges that, during that three-year period of supervision, Mr. Myslenski
engaged in “harassment, micromanaging, disparate treatment.” ECF No. 26-1 at PageID#: 36869. At his deposition, Mr. Willis testified that Mr. Myslenski interfered in his classroom on a
weekly basis even though other teachers were less closely scrutinized. ECF No. 26-1 at
PageID#: 338; ECF No. 27-1 at PageID#: 718. Mr. Willis also testified that Mr. Myslenski
directed other teachers to send their disruptive students to his classroom for intervention but not
to other teachers’ classrooms. ECF No. 26-1 at PageID#: 419-20; see also ECF No. 26-60.
2
(1:17cv1112)
The parties agree that Mr. Myslenski verbally reprimanded Mr. Willis on at least two
occasions: once because Mr. Willis failed to supervise students in the hallway during a change in
classes, ECF No. 26-1 at PageID#: 301, and once because he was reading personal emails during
a staff meeting. See ECF No. 33-1 at PageID#: 1479-80. Mr. Myslenski instructed Mr. Willis to
perform “Functional Behavior Assessments” for all his students and not to use “Simple
Solutions,” a certain textbook, in his classroom. ECF No. 37-1 at PageID#: 2427, ¶¶ 8-9. The
parties dispute whether other teachers were instructed to do the same. See ECF Nos. 37, 39.
On February 23, 2015, Mr. Willis sent an anonymous email to the Chief Executive
Officer and two other employees of the School District opining that Mr. Myslenski was “unfit to
be in a leadership position in a diverse urban setting such as [the School District].” ECF No. 313 at PageID#: 1191. He recounted that Mr. Myslenski “[s]poke to a[n African-American] staff
member asking how their weekend was and asked if they ‘had fried chicken and a forty ounce
during the weekend.’” Id. The then anonymous email also stated that Mr. Myslenski had
suggested at a staff meeting that certain students need not learn Standard English because
“maybe they can get a job in the hood.” Id. While Mr. Myslenski acknowledges that he asked a
staff member about “drinking forties,” he does not recall mentioning “fried chicken.” ECF No.
31-1 at PageID#: 1430-31. He acknowledges using the term “the hood,” but he asserts the term
“was taken completely out of context.” Id. at 1427-28.
On April 7, 2015, Mr. Willis sent another email about Mr. Myslenski to the same three
individuals, this time non-anonymously. See ECF No. 26-52. This email made the same
allegations but also included some charged commentary:
3
(1:17cv1112)
That exchange [“maybe they can get a job in the hood”] has not left my
consciousness as I know that no matter what, if you are Black, if you do not have
command of the English language you will not go far in this world. For him to
dismiss out of hand the importance of this vital skill [Standard English
proficiency] for the children of Paul Revere is unethical, amoral, immoral,
unprincipled, indefensible, unforgivable, wrong, you choose.
Id.
Mr. Myslenski’s supervisor, Valentina Moxon, investigated the allegations and conferred
with Mr. Myslenski on April 20, 2015. ECF No. 31-11. She expressed Mr. Willis’s concerns to
him, and she instructed Mr. Myslenski “to be more reflective of his words and examples, always
being aware of the possible implications and perceptions of his comments.” Id. She also
conveyed to Mr. Myslenski that “[c]ultural competencies and openness to diversity are some of
the characteristics our school leaders must exhibit at all times.” Id.
On April 22, 2015, ostensibly based on observations over the course of the school year
and the criteria in the TDES framework, Mr. Myslenski issued Mr. Willis an overall performance
rating of “ineffective.” ECF No. 33-1 at PageID#: 1546-47; ECF No. 33-45. More specifically,
Mr. Myslenski identified six TDES criteria in which Mr. Willis failed to meet expectations: “(2a)
Respect & rapport, (2b) Challenging & rigorous culture, (2d) Managing student behavior, (3b)
Questioning & disc[ussion], (3c) Engaging students, (3d) Using assessments.” ECF No. 33-45.
Notwithstanding the poor rating, Mr. Myslenski was prepared to recommend that the
School District renew Mr. Willis’s contract for another school year. Id. Mr. Willis, however,
refused to sign the final evaluation form acknowledging “ineffective” performance, ECF No. 354 at PageID#: 2273, and Mr. Myslenski subsequently recommended that the School District not
renew Mr. Willis’s employment contract for the following school year. See ECF No. 26-54 at
4
(1:17cv1112)
PageID#: 567. On June 10, 2015, the School District formally resolved not to renew Mr. Willis’s
employment contract. ECF No. 25 at PageID#: 170, ¶ 16.
At some point in Spring 2015, Mr. Willis began working as a professional realtor. ECF
No. 26-1 at PageID#: 210. Since Fall 2016, he has worked as an intervention specialist for two
education-services companies. Id. at PageID#: 207-08, 217-18. He is currently employed and
earns about $60,000 annually. Id. at PageID#: 208. He is capable of managing his personal and
business affairs. Id. at PageID#: 211-14, 358.
II. Standard of Review
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure materials on file, and any affidavits show “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);
see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). The moving party is not required
to file affidavits or other similar materials negating a claim on which its opponent bears the
burden of proof, so long as the movant relies upon the absence of the essential element in the
pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party must “show that the non-moving party has
failed to establish an essential element of his case upon which he would bear the ultimate burden
of proof at trial.” Guarino v. Brookfield Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).
Once the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of a genuine dispute. An opposing party may not simply rely
on its pleadings; rather, it must “produce evidence that results in a conflict of material fact to be
5
(1:17cv1112)
resolved by a jury.” Cox v. Ky. Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995). The
non-moving party must, to defeat the motion, “show that there is doubt as to [whether] the
material facts and that the record, taken as a whole, does not lead to a judgment for the movant.”
Guarino, 980 F.2d at 403. The Court views the evidence in the light most favorable to the
non-moving party when deciding whether a genuine issue of material fact exists. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Adickes v. S.H. Kress &
Co., 398 U.S. 144 (1970).
The existence of some factual dispute between the parties will not alone defeat an
otherwise properly supported motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380
(2007). A fact is “material” only if its resolution will affect the outcome of the lawsuit. In
determining whether a factual issue is “genuine,” the court must decide whether the evidence is
such that reasonable jurors could find that the non-moving party is entitled to a verdict. Id.
Summary judgment “will not lie . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. To withstand summary judgment, the non-movant must
show sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank,
916 F.2d 337, 342 (6th Cir. 1990). A mere scintilla of evidence in support of the non-moving
party’s position ordinarily will not be sufficient to defeat a motion for summary judgment. Id.
III. Law and Analysis
Based on these facts, Mr. Willis argues that Defendants Mr. Myslenski and the School
District unlawfully terminated his employment because of his race, retaliated against him for
engaging in a protected activity, and intentionally inflicted emotional distress on him. ECF No.
6
(1:17cv1112)
1. Defendants move for summary judgment on all counts. ECF No. 35. The Court grants
Defendants’ motion as to Counts 1, 2, 3, and 5, and denies their motion as to Count 4.
A. Discrimination and Wrongful Termination (Counts 1, 2, and 3)
The Court addresses the first three Counts as a unit. Counts 2 and 3 allege violation of
the same statute, Ohio Rev. Code § 4112.02, and the legal allegations are virtually identical
under each heading. ECF No. 1 at PageID#: 10-11, ¶¶ 112, 119. Furthermore, although Count 1
alleges a violation of federal law (as opposed to state law), the legal analysis is the same under
Title VII and its Ohio counterpart. Singfield v. Akron Metro. Housing Auth., 389 F.3d 555, 561
(6th Cir. 2004) (citing Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights
Comm'n, 421 N.E.2d 128 (Ohio 1981)). If given evidence is insufficient to support a finding of
Title VII liability, it is necessarily also insufficient to support a finding of liability under Ohio
Rev. Code § 4112.02. Kimble v. Intermetro Indus., 288 F. Supp. 2d 876, 880 (N.D. Ohio 2003).
Because Mr. Willis does not make out a prima facie case of race-based employment
discrimination under Title VII of the federal Civil Rights Act, the Court grants Defendants’
motion for summary judgment as to the first three Counts.
Title VII makes it unlawful for an employer to “discharge any individual . . . because of
such individual’s race, color, religion, sex, or national origin . . . .” 42 U.S.C. §§ 2000e-2(a)(1).
Mr. Willis may establish a prima facie case under Title VII for racial discrimination by
introducing direct evidence of discrimination, or, absent direct evidence, by using the
McDonnell–Douglas burden-shifting paradigm. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348
(6th Cir. 1997) (citing Talley v. Bravo Pitino Rest., L.T.D., 61 F.3d 1241, 1248 (6th Cir. 1995)).
7
(1:17cv1112)
Mr. Willis does not pursue a direct-evidence theory of discrimination. See ECF No. 37. Instead,
he opts to make his case with indirect, circumstantial evidence.
To prove his case under the McDonnell-Douglas burden-shifting paradigm, Mr. Willis
must first make out a prima facie case of race-based employment discrimination.1 To satisfy his
prima facie obligation, Mr. Willis must show that he was (1) a member of a protected class, (2)
subject to an adverse employment action, (3) qualified for the position, and (4) replaced by a
person outside the protected class or treated differently than similarly situated nonminority
employees. Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 303 (6th Cir. 2016) (citing
Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)).
All agree that the first two prongs are satisfied. See ECF No. 25 at PageID#: 169-70, ¶¶
2, 15-16. In passing, Defendants assert (but do not argue) that Mr. Willis has not established that
he was qualified for his position. ECF No. 35 at PageID#: 1941. Mr. Willis responds by citing
his nineteen years of experience with the School District and many positive performance
evaluations during that time. ECF No. 37 at PageID#: 2415. Because a reasonable jury could
find that Mr. Willis was qualified as an intervention specialist, the third prong is also satisfied for
summary-judgment purposes.
The parties’ real disagreement resides in the fourth prong of the prima facie case: Was
Mr. Willis treated less favorably than similarly situated nonminority employees? In his brief in
1
If he were to succeed, the burden would shift to Defendants to present a legitimate,
nondiscriminatory reason for terminating his employment, at which point Mr. Willis would again
bear the burden to prove, by a preponderance of the evidence, that Defendants’ proffered
rationale is pretextual. Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 303 (6th Cir. 2016).
8
(1:17cv1112)
opposition to summary judgment, Mr. Willis focuses on one former colleague to make the case
that similarly situated nonminority employees were treated more favorably by Mr. Myslenski and
the School District. Id. at PageID#: 2416. By Mr. Willis’s account, Shannon Cooney, a
Caucasian woman, was similarly situated because she, like Mr. Willis, was an intervention
specialist at Paul Revere who worked with “emotionally disturbed” students. Id.; ECF No. 26-1
at PageID#: 302-03. Ms. Cooney was treated more favorably, he argues, because she was not as
closely micromanaged, she had greater latitude in her curricular and instructional choices, and,
ultimately, she received a higher performance rating than Mr. Willis and her employment
contract was renewed. ECF No. 37 at PageID#: 2416-17.
Undoubtedly, Ms. Cooney was treated “more favorably” than Mr. Willis, at least in a
sense. It is more favorable to be employed than not. But the threshold question is whether Ms.
Cooney was similarly situated to Mr. Willis in the first place. When assessing whether two
individuals were “similarly situated” for this purpose, “the plaintiff and the employee with whom
the plaintiff seeks to compare himself or herself must be similar in ‘all of the relevant aspects.’”
Singfield, 389 F.3d at 562 (quoting Ercegovich v. Goodyear Tire and Rubber Co., 154 F.3d 344,
352 (6th Cir. 1998)). No two individuals are identical, but the Court looks for “relevant
similarity.” Singfield, 389 F.3d at 562 (quoting Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir.
2000)).
In Singfield, the plaintiff was not similarly situated with his nonminority colleagues
because “none was similar in the way that is fundamental to this case . . . none of the employees
cited allegedly engaged in the range of activities for which Singfield was disciplined.” 389 F.3d
9
(1:17cv1112)
at 562. In this case, Ms. Cooney was similar to Mr. Willis in that both were intervention
specialists at Paul Revere who worked with emotionally disturbed students. ECF No. 37 at
PageID#: 2416. But there is no evidence suggesting that Ms. Cooney is similarly situated “in the
way that is fundamental to this case.” See Singfield, 389 F.3d at 562. Mr. Willis presents no
evidence showing that Ms. Cooney’s teaching performance was similar to Mr. Willis’s teaching
performance or that they practiced similar teaching strategies. More precisely, he presents no
evidence to show that Ms. Cooney also struggled to meet expectations in the six discrete areas in
which he was rated “ineffective.” See ECF No. 33-45.
It is unexceptional, of course, that a better performing employee is more secure in her
employment and is subject to less scrutiny from her supervisor. Absent some showing that Ms.
Cooney’s teaching performance was similar to his own (for instance, with notes of her TDES
observations and evaluations), there is no evidence that any similarly situated, nonminority
employee was treated more favorably than Mr. Willis. See Singfield, 389 F.3d at 562. He
therefore fails to meet his prima facie burden under Title VII. Defendants have no obligation,
then, to identify a legitimate, nondiscriminatory reason for terminating his employment.
Because Mr. Willis’s federal-law allegation fails, the counterpart state-law allegations
necessarily also fail. See Kimble, 288 F. Supp. 2d at 880. As to Counts 1, 2, and 3, there is no
genuine dispute of material fact and Defendants are entitled to judgment as a matter of law.
Summary judgment is granted as to those Counts.
10
(1:17cv1112)
B. Retaliation (Count 4)
The remaining Counts (retaliation and intentional infliction of emotional distress) are
state-law claims. ECF No. 1 at PageID#: 11-12. Although the claims in Counts 4 and 5 do not
arise under federal law and the parties are not diverse, the Court retains subject-matter
jurisdiction under 28 U.S.C. § 1367. Although the Court “may decline to exercise supplemental
jurisdiction” under these circumstances, it need not. See 28 U.S.C. § 1367(c). In this case,
concerns about judicial economy, convenience, and fairness all weigh in favor of keeping Counts
4 and 5 in federal court—the parties have litigated for sixteen months in this Court, and trial is
less than two months away. See Krambeck v. Children and Families of Iowa, 451 F. Supp. 2d
1037, 1043-44 (S.D. Iowa 2006). The Court also observes that Mr. Willis could just as well have
brought his retaliation claim under federal law, see 42 U.S.C. § 2000e-3(a), under which heading
the Court’s analysis would be identical.
Under Ohio Rev. Code § 4112.02(I), it is unlawful “[f]or any person to discriminate in
any manner against any other person because that person has opposed any unlawful
discriminatory practice defined in this section . . . .” Mr. Willis alleges that Mr. Myslenski and
the School District terminated his employment as retaliation for sending the two emails—on
February 23, 2015, and April 7, 2015, respectively—accusing Mr. Myslenski of racial prejudice.
ECF No. 1 at PageID#: 11.
To establish a case of retaliation, a claimant must prove that (1) he engaged in a protected
activity, (2) the defending party was aware that the claimant had engaged in that activity, (3) the
defending party took an adverse employment action against the employee, and (4) there is a
11
(1:17cv1112)
causal connection between the protected activity and adverse action. Greer-Burger v. Temesi,
879 N.E.2d 174, 180, ¶ 13 (Ohio 2007). The second and third prongs are undisputed. The Court
addresses the first and fourth prongs in turn.
Mr. Willis argues that complaining to School District officials about Mr. Myslenski’s
remarks (“fried chicken and a forty ounce” and “they can get a job in the hood”) was a protected
activity under Ohio Rev. Code § 4112.02(I). ECF No. 37 at PageID#: 2420-21. Defendants
disagree, noting that Mr. Willis himself described the remarks (in the first email) as “at best
culturally insensitive.” ECF No. 35 at PageID#: 1943. Defendants also argue that, because the
alleged comments themselves are not illegal under Ohio law, Mr. Willis’s indignant emails do
not constitute “[opposition to] any unlawful discriminatory practice” defined in the Ohio
nondiscrimination statute. Id.
As noted, “federal case law interpreting Title VII of the Civil Rights Act of 1964 . . . is
generally applicable to cases involving alleged violations of [Ohio Rev. Code § 4112].”
Plumbers & Steamfitters, 421 N.E.2d at 131. For that reason, the Court looks to both state and
federal case law to assess whether Mr. Willis’s email complaints were “protected” under Ohio’s
counterpart to Title VII.
“When an employee communicates to her employer a belief that the employer has
engaged in . . . a form of employment discrimination, that communication virtually always
constitutes the employee’s opposition to the activity.” Crawford Metro. Gov’t of Nashville and
Davidson Cty., Tenn., 555 U.S. 271, 276 (2009) (internal quotation marks and citations omitted).
That communication of opposition need not expressly articulate the law and the facts supporting
12
(1:17cv1112)
the allegation of unlawful discrimination. Rather, it is sufficient if it is “based on a reasonable
and good faith belief that the challenged conduct is unlawful.” Amesse v. Wright State
Physicians, Inc., 2018 WL 678286 (Ct. App. Ohio Feb. 2, 2018) (citing Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000)).
In his emails, Mr. Willis stated, “I believe [Mr. Myslenski] is unfit to be in a leadership
position in a diverse urban setting such as [the School District],” and, “I feel that [Mr.
Myslenski] is not fit to be the educational ‘leader’ of students, who look like the ones here at
Paul Revere.” ECF No. 26-51; ECF No. 26-52. Mr. Willis expressly asserted his belief that Mr.
Myslenski was racially biased and asked for him to be removed from his position. ECF No. 2651; ECF No. 26-52. He insisted that Mr. Myslenski’s alleged attitude toward African-American
students was “unethical, amoral, immoral, unprincipled, indefensible, unforgivable, wrong, you
choose.” ECF No. 26-52. It would be parsing to suggest that Mr. Willis did not “oppose” what
he, reasonably and in good faith, believed to be an “unlawful discriminatory practice.”
Other courts have ruled that an employee’s opposition to discriminatory remarks can be
protected activity. In Alexander v. Gerhardt Enters., Inc., an employee sent a memorandum to
her superiors reporting that another superior had uttered racist slurs. 40 F.3d 187, 195 (7th Cir.
1994). Sending the memorandum, in that case, was protected activity because the document “set
out her position as well as her requested relief” and was meant “to prevent similar comments in
the future.” Id. In Rowland v. Franklin Career Servs., LLC, a district court ruled that an
employee engaged in protected activity when he reported that his superiors had commented,
“[N***]rs didn’t have no place in a truck.” 272 F. Supp. 2d 1188, 1207 (D. Kan. 2003). In both
13
(1:17cv1112)
cases, reporting racially prejudicial comments up the chain was protected activity, even without
express allegations of unlawfulness. Id. In this case, too, the Court rules that Mr. Willis’s emails
to School District officials alerting them to Mr. Myslenski’s alleged racial prejudice were
protected under Ohio’s anti-retaliation statute.
Defendants also argue that Mr. Willis fails his prima facie retaliation case because he
fails to show “a causal connection between the protected activity and adverse action.” GreerBurger, 879 N.E.2d at 180, ¶ 13. Causation is a question of fact.
Temporal proximity between the protected activity and the adverse action is relevant to
assessing causation, Singfield, 389 F.3d at 563, but it is not alone sufficient unless the timing is
“unusually suggestive”. Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (6th Cir. 2008)
(quoting Cardenas v. Massey, 269 F.3d 251, 264 (3d Cir. 2001)). In this case, even though Mr.
Myslenski’s recommendation not to renew Mr. Willis’s contract came less than three weeks after
Mr. Willis sent his second email and within four days of Mr. Myslenski’s learning about that
email, see ECF No. 26-52; ECF No. 31-11; ECF No. 35-4 at PageID#: 2273, the timing alone is
not “unusually suggestive.” The nonrenewal recommendation occurred at the expiration of Mr.
Willis’s contract. See ECF No. 26-36. The end of the school year was the only time Mr.
Myslenski and the School District could possibly have made the decisions they made.
Nevertheless, when considered alongside other allegedly retaliatory conduct, the temporal
proximity between Mr. Willis’s emails and Mr. Myslenski’s nonrenewal recommendation gives
rise to a triable issue of fact. See Mickey, 516 F.3d at 529. Although Mr. Myslenski was
prepared to recommend renewal of Mr. Willis’s contract, ECF No. 33-45, he reversed his
14
(1:17cv1112)
position four days after being admonished by Ms. Moxon, in response to Mr. Willis’s emails, to
be “more reflective of his words and examples,” and to bear in mind that “[c]ultural
competencies and openness to diversity are some of the characteristics our school leaders must
exhibit at all times.” ECF No. 31-11.
Mr. Myslenski and the School District contend that Mr. Myslenski changed his position
only because Mr. Willis “refused to acknowledge that of the deficiencies in his instructional
practice existed,” and not because Mr. Myslenski was rebuked by his supervisor, Ms. Moxon.
ECF No. 33-1 at PageID#: 1547. A jury may choose to believe Defendants’ version of events,
but such a conclusion is for a jury to draw, not the Court.
“The burden of establishing a prima facie case in a retaliation action is not onerous, but
one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000). Because Mr.
Willis has met his prima facie burden on his retaliation claim, the Court denies summary
judgment as to Count 4.
C. Intentional Infliction of Emotional Distress (Count 5)
Intentional infliction of emotional distress, under Ohio common law, has four elements:
(1) that the actor either intended to cause emotional distress or knew or should have known that
actions taken would result in serious emotional distress to the plaintiff; (2) that the actor’s
conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was
such that it can be considered as utterly intolerable in a civilized community, (3) that the actor’s
actions were the proximate cause of plaintiff’s psychic injury; and (4) that the mental anguish
suffered by plaintiff is serious and of a nature that no reasonable man could be expected to
15
(1:17cv1112)
endure it.” Ashcroft v. Mt. Sinai Med. Ctr., 588 N.E.2d 280, 284 (quotation marks and citations
omitted).
Mr. Willis does not present evidence to show that any infliction of distress was
intentional. He does not show that Mr. Myslenski’s alleged remarks, while offensive, amounted
to more than “insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”
Clay v. Shriver Allison Courtley Co., 2018 WL 4043185, at *7, ¶ 53 (Aug. 16, 2018). And he
does not demonstrate mental anguish that no reasonable man could be expected to endure. Mr.
Willis testified at his deposition that he is not able to clean around the house because of his
depression,2 ECF No. 26-1 at PageID#: 358, but he acknowledged that he has been gainfully
employed since being terminated from the School District, id. at PageID#: 210-14, that he is able
to perform the functions of his new job, cook for himself, bathe himself, and dress himself. Id. at
PageID#: 358.
Because Mr. Willis fails to meet the prima facie burden of intentional infliction of
emotional distress under Ohio common law, the Court grants summary judgment for Defendants
as to Count 5.
IV. Conclusion
Because Mr. Willis fails to satisfy his prima facie burden on Counts 1, 2, 3, and 5, the
Court grants Defendants’ motion for summary judgment (ECF No. 35) as to those Counts.
2
His testimony was apparently based on a self-diagnosis.
Q. What's preventing you from cleaning?
A. I would say depression. I’m not a doctor, but definitely depression.
ECF No. 26-1 at PageID#: 358.
16
(1:17cv1112)
Because a genuine dispute of material fact exists with respect to Mr. Willis’s retaliation claim,
the Court denies summary judgment as to Count 4.
IT IS SO ORDERED.
September 7, 2018
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?