Conroy v. Corrections Corporation of America et al
Filing
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Memorandum of Opinion and Order For the reasons set forth herein, Defendants' Motion for Summary Judgment, ECF No. 29 , is granted. The final pretrial and trial dates are hereby cancelled. Judge Benita Y. Pearson on 7/15/2016. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES CONROY,
Plaintiff,
v.
CORRECTIONS CORPORATION OF
AMERICA, et al.,
Defendants.
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CASE NO. 4:15CV01456
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 29]
Pending is Defendants’ Motion for Summary Judgment, ECF No. 29. The motion is fully
briefed, see ECF Nos. 33 and 34. The Court has been advised, having reviewed the record, the
parties’ briefs, and the applicable law. For the reasons set forth below, Defendants’ Motion for
Summary Judgment is granted.
I. Factual and Procedural Background
Defendant Corrections Corporation of America (“CCA”) hired Plaintiff James Conroy on
August 17, 2009 as the investigator for the Northeast Ohio Correctional Center. Parties’
Undisputed Fact Stipulation, ECF No. 37 ¶ 1.1 The investigator is responsible for informing the
warden of inmate complaints against staff. Pugh Dec., ECF No. 29-2 ¶ 9. On September 16,
2013, Plaintiff was injured in an attempt to stop his dogs from fighting. ECF No. 37 ¶ 4. These
1
The parties submitted fact stipulations at ECF No. 28 and ECF No. 37. The
documents are substantively identical. The Court relies on the most recent stipulations,
ECF No. 37, for purposes of this ruling.
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injuries required him to take time off from work. Id. CCA, through Defendant Warden Mike
Pugh, permitted Plaintiff to take time off from work to recover and to receive treatment. Id. ¶ 5.
Following the incident, Plaintiff saw a psychiatrist, who diagnosed him as having post traumatic
stress disorder (“PTSD”), dysthymic disorder, and obsessive compulsive disorder. VinciKhoury, M.D. Dep., ECF No. 29-3 at PageID #: 1167. By December 2013, Plaintiff had returned
to work full-time. ECF No. 37 ¶ 6. CCA gave Plaintiff annual performance reviews. Id. ¶ 3. In
2012, 2013, and 2014, Defendant Pugh gave Plaintiff positive performance ratings. See
Opposition, ECF No. 33 at PageID #: 1616, 1618.
CCA provides employees, including Plaintiff, a Code of Ethics and Business Conduct
that includes ethical standards requiring both the diligent performance of duty and mutual respect
and cooperation among employees. ECF No. 37 ¶ 7. CCA provides employees, including
Plaintiff, with a list of work offenses entitled Standard Schedule of Disciplinary Offenses. The
Standard Schedule includes the following offense: “Disrespectful Conduct, use of insulting,
abusive or obscene language about others.” Id. ¶ 8. Plaintiff was aware of the Code of Ethics
and the Standard Schedule of Disciplinary Offenses. Id. ¶ 9.
On October 9, 2014, Latosia Austin, a CCA unit manager, met with Plaintiff and
informed him that an inmate had submitted an informal resolution claiming a CCA Chaplain had
sworn at an inmate. ECF No. 37 ¶ 10. During this meeting, Plaintiff used profanity and
complained about work being improperly given to the special investigations unit. Id. ¶ 11.
Specifically, when Austin handed the inmate complaint to Plaintiff, Plaintiff asked, “[W]ho the
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fuck told you to give this to me?” Austin Dep., ECF No. 33-8 at PageID #: 1969. When Austin
answered, Plaintiff responded, “[W]ho the fuck is he to tell you to give this to me?” Id. Austin
then told Plaintiff to give the inmate complaint back to her, and she left with it. Id. at PageID #:
1970, 1983. Later on the same day, Plaintiff apologized to Austin for using profanity and
venting. ECF No. 37 ¶ 11.
After meeting with Austin, Plaintiff was aware that an inmate had submitted an informal
resolution containing a complaint about the conduct of CCA staff. Id. ¶ 12. Nevertheless,
Plaintiff did not follow up to ensure that the complaint was properly and timely reviewed for
investigation. See Conroy Dep., ECF No. 29-1 at PageID #: 324. Defendant Pugh requested that
Plaintiff complete an Internal Investigation Statement regarding the events of October 9, 2014.
ECF No. 37 ¶ 13. On October 24, 2014, Defendant Pugh placed Plaintiff on paid leave and
recommended the termination of Plaintiff’s employment. Id. ¶ 14. On November 17, 2014,
Defendant Pugh explained his rationale for recommending Conroy’s termination in an email to
Jeff Rainey and Keith Hall, stating,
1. [Plaintiff]’s conduct was extremely unprofessional especially as one representing
facility execute staff and the facility investigator.
2. He failed to do his job. The allegation was not referred to the BOP OIA for
investigation. He did not follow-up to ensure a referral was made. That inaction is
totally unacceptable.
3. He was disrespectful. While I do not see it as “blatant”, I believe many would disagree
on that point. I have terminated numerous staff members for blatant disrespect. Many
are probably watching to see if I hold the facility investigator to the same standard.
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4. He is negative every day about everything, including CCA, and he is outspoken about
it.
Id. ¶ 15; ECF No. 33-4 at PageID #: 1634.
On November 19, 2014, Rainey concurred with Defendant Pugh’s recommendation. Id. ¶
16. CCA terminated Plaintiff’s employment on December 1, 2014. Id. ¶ 2. The termination
letter states that Plaintiff’s employment is terminated “due to a violation of Code of Ethics and
Business Conduct Facility Employee Supplement 3-3BB #1 Diligence, #3 Cooperation and
Mutual Respect; Standard Schedule of Disciplinary Offenses and Penalties 3-3E #7 Disrespectful
Conduct, use of insulting, abusive or obscene language to or about others.” ECF No. 33-5 at
PageID #: 1636. Defendant Pugh documented the reasons for the termination in a Problem
Solving Notice. ECF No. 37 ¶ 17. Plaintiff grieved his termination. Id. ¶ 18. CCA denied the
grievance and upheld the termination of Plaintiff’s employment. Id. ¶ 19.
Plaintiff filed a two-count Complaint against Defendants in the Court of Common Pleas,
Mahoning County, Ohio. See ECF No. 1-1. In Counts I and II of the Complaint, respectively,
Plaintiff alleges disability discrimination and intentional infliction of emotional distress in
connection with his termination. See Id. Plaintiff seeks injunctive relief and damages. Id. at
PageID #: 19-20. Defendants removed the action to this Court on the basis of diversity of
citizenship, pursuant to 28 U.S.C. § 1332. See Notice of Removal, ECF No. 1. The Court
approved the parties’ joint stipulated dismissal with prejudice of Count II, intentional infliction
of emotional distress. See Notice of Stipulated Dismissal, ECF No. 31. Defendants filed the
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motion for summary judgment under review as to the remaining Count I, disability
discrimination. See ECF No. 29.
II. Standard of Review
Summary judgment is appropriately granted when the pleadings, the discovery and
disclosure of 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).
After the movant makes a properly supported motion, the burden shifts to the non-moving
party to demonstrate the existence of material facts in 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 resolved by a jury.” Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir.
1995). 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 evaluate whether the evidence
could persuade a reasonable factfinder that the non-moving party is entitled to a verdict. Id.
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To defeat a motion for summary judgment, the non-moving party must “show that there is
doubt as to 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. In reviewing a motion for summary judgment, the
court must view 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 a mere scintilla of evidence in support of the non-moving party’s position ordinarily
is not sufficient to defeat a motion for summary judgment. Klepper v. First Am. Bank, 916 F.2d
337, 342 (6th Cir. 1990).
III. Analysis
A. Disability Discrimination
To establish a prima facie case of disability discrimination under Ohio Rev. Code §
4112.02(A), a plaintiff must show that “‘(1) the [plaintiff] had a disability; (2) the defendant took
an adverse employment action, at least in part, because the plaintiff had the disability; and (3) the
[plaintiff], while having a disability, could safely and substantially perform the essential
functions of the job in question.’” Emswiler v. CSX Transp., Inc., 691 F.3d 782, 792 (6th Cir.
2012) (citing Wallace v. Mantych Metalworking, 189 Ohio App.3d 25, 937 N.E.2d 177, 183
(2010)). “Once the plaintiff establishes a prima facie case, the burden shifts to the employer to
set forth a legitimate, non-discriminatory reason for its action.” Covucci v. Service Merchandise
Co., Inc., 115 Fed.App’x. 797, 2004 WL 2367970, at *2 (6th Cir. Oct. 20, 2004) (citing Hood v.
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Diamond Prods., Inc., 74 Ohio St.3d 298, 658 N.E.2d 738, 741 (1996)). If the employer
sufficiently sets forth these reasons, “[t]he burden then shifts back to the employee to
demonstrate that the employer’s stated reason was a pretext designed to mask impermissible
discrimination.” Covucci, 2004 WL 2367970, at *2 (citing Hood, 658 N.E.2d at 741).
In a footnote, Defendants briefly assert that Plaintiff cannot establish the prima facie case,
arguing only that Plaintiff is not disabled under Ohio law. See ECF No. 29 at PageID #: 168-69,
n. 6. As Defendants state however, the motion for summary judgment “focus[es] on the
overwhelming evidence that CCA had a legitimate, non-discriminatory reason to discharge
[Plaintiff] and that he was not treated differently than any similarly situated non-disabled
employee.” ECF No. 29 at PageID #: 169, n. 6. Assuming arguendo that Plaintiff can establish
a prima facie case for disability discrimination, the burden shifts to Defendants to demonstrate a
legitimate, non-discriminatory reason for discharging Plaintiff.
B. Legitimate, Non-Discriminatory Reason
Defendants’ burden to set forth a legitimate, non-discriminatory reason for its action is
one of production, not of persuasion. See Allen v. totes/Isotoner Corp., 123 Ohio St.3d 216, 21617 (2009). “The ultimate burden of persuading the trier of fact that the employer intentionally
discriminated against the plaintiff based upon an impermissible category remains on the
plaintiff.” Id. “Legitimate, nondiscriminatory reasons in Ohio law include insubordination.” Id.
at 217 (citing Hood, 74 Ohio St.3d at 302).
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Defendants have met their burden by offering that Plaintiff failed to perform his job
duties and behaved unprofessionally, in violation of CCA’s policies. See ECF No. 29 at PageID
#: 169-70. Accordingly, any “presumption of discrimination no longer exists,” and Plaintiff
“must prove that the reasons offered by [Defendants] were in fact pretextual in order to prevail.”
Browning v. Dep’t of the Army, 436 F.3d 692, 695 (6th Cir. 2006).
C. Pretext
A plaintiff can demonstrate pretext by showing “(1) that the [employer’s] proffered
reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the
employer’s action, or (3) that they were insufficient to motivate the employer’s action.” Chen v.
Dow Chemical Co., 580 F.3d 394, 400 (6th Cir. 2009). “‘But a reason cannot be proved to be ‘a
pretext for discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.’” Williams v. Akron, 107 Ohio St.3d 203, 206 (2005)
(emphasis in original) (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993)).
1. Defendants’ stated reasons are based in fact.
Defendants assert that CCA discharged Plaintiff because he “failed to do his job.” ECF
No. 29 at PageID #: 169. Plaintiff concedes that he was aware of CCA’s requirement that
employees diligently perform their duties. See ECF No. 37 ¶¶ 7, 9. The evidence of record
establishes the following: Plaintiff was the investigator for the prison, ECF No. 37 ¶ 1. As the
investigator, Plaintiff was responsible for informing the warden of inmate complaints against
staff, Pugh Dec., ECF No. 29-2 ¶ 9. Plaintiff was aware that an inmate had submitted a
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complaint against a staff member, ECF No. 37 ¶ 12. Plaintiff failed to report the inmate
complaint to the warden and failed to follow up about the complaint2, Conroy Dep., ECF No. 291 at PageID #: 332. There is no question that Plaintiff abdicated his duty.
Defendants also assert that CCA discharged Plaintiff because he behaved
unprofessionally. ECF No. 29 at PageID #: 170. Plaintiff concedes that he was aware of CCA’s
requirement of mutual respect and cooperation among employees, and its prohibition against
“disrespectful conduct, [and] use of insulting, abusive or obscene language about others.” See
ECF No. 37 ¶¶ 7-9. Plaintiff also admits that he used profanity in an exchange at work with a
fellow employee, see Id. ¶ 11, and the evidence of record establishes that he used profanity more
than once during this exchange, see, e.g., Problem Solving Notice, ECF No. 28-7 at PageID #:
162; Incident Statement, ECF No. 33-1 at PageID #: 1631. There is no question that Plaintiff
violated CCA’s policies of mutual respect and cooperation, and its prohibition against using
obscene language.
2. Defendants’ stated reasons actually motivated their action and were
sufficient to motivate their action.
2
In the opposition, Plaintiff states that his co-workers departed from normal
procedure by sending him an inmate complaint that was written in Spanish. See ECF No.
33 at PageID #: 1619, 1621. He also remarks that the Warden is only the person who
assigns investigations to him, and that Austin left with the inmate complaint, even after
he attempted twice to get Austin to leave the complaint with him. Id. at PageID #: 1621.
Because Plaintiff concedes that he failed to follow up on the inmate complaint after he
had become aware of it, the Court does not find these explanatory facts of significance.
Plaintiff knew of the work and failed to do it.
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Plaintiff asserts that he was not fired for being disrespectful because “Austin never felt
disrespected by [Plaintiff]” and Defendant Pugh “categorized [Plaintiff]’s behavior as not being
‘blatantly disrespectful.’” See ECF No. 33 at PageID #: 1626. The Court’s analysis does not
turn on these contentions. Plaintiff’s employment was terminated because he violated CCA’s
well known policies, not because of an employee’s perception of his violations. Plaintiff’s claim
that “the Warden let his secretary keep a ‘swear jar’ on her desk,” see ECF No. 33 at PageID #:
1627, is also of no import. The existence of a secretary’s swear jar neither establishes other
instances of employees using obscenities toward other employees without reprimand, nor
overrides CCA’s policies.
Additionally, Plaintiff contends that he was not fired for lack of diligence or swearing
because other CCA employees have engaged in comparable behavior without reprimand. See
ECF No. 33 at PageID #: 1626-28. To demonstrate that an employee is an appropriate
comparator, Plaintiff must show that he and his proposed comparator are “similar in all relevant
respects” and “engaged in acts of comparable seriousness.” Ames v. Ohio Dept. of Rehab. &
Corr., 23 N.E.3d 162, 172 (Ohio Ct. App. Oct. 28, 2014) (citing Bobo v. United Parcel Svc. Inc.,
665 F.3d 741, 753 (6th Cir. 2012). Plaintiff sets forth comparators for the Court’s consideration:
Pugh testified that Austin, herself, violated CCA’s Code of Conduct in not
reporting [Plaintiff]’s conduct, but Pugh selectively chose not to discipline Austin.
. . . [O]ut of at least five employees who knew about the [inmate] complaint, only
[Plaintiff] was disciplined.
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Compare [Plaintiff]’s outcome with that of Daugherty. Daugherty sent
Austin to Plaintiff with an investigation, when only the Warden was supposed to
do so. Daugherty sent Austin back to a Spanish speaking inmate to have that same
inmate translate his own complaint from Spanish to English. Daugherty knew
about [Plaintiff]’s alleged disrespect and lack of diligence, but failed to report it.
Daugherty knew about the [inmate] complaint, but did not follow up on it. For his
efforts, Daugherty was promoted into [Plaintiff]’s old position of Investigator.
Moreover, while Daugherty instructed Austin to gather “incident
statements” from all persons relevant to the [inmate] complaint, when Austin
failed to do so, and instead took only the informal resolution to Plaintiff, neither
Daugherty or Austin were disciplined, even though Daugherty’s incident
statement about the [Plaintiff] matter clearly shows that Austin and Daugherty
were both deficient in this regard.
. . . Mike Sullivan, another NOCC employee, admitted to yelling “Shut the
fuck up” toward inmates, in an exchange that may have also involved inmates
being called “pussies” and “dirty Mexicans.” For his conduct, Sullivan was not
terminated. Instead, Pugh stayed Sullivan’s discipline for one year and then
promoted him.
ECF No. 33 at PageID #: 1626-28.
The employees cited by Plaintiff are not valid comparators. At the threshold, none of
them was responsible for reporting inmate complaints to the Warden. See Pugh Supplemental
Dec., ECF No. 34-2 ¶¶ 18-19; Reply, ECF No. 34 at PageID #: 2023-24. That was Plaintiff’s
responsibility. Pugh Dec., ECF No. 29-2 ¶ 9. Plaintiff’s failure to perform his core job function
of investigating inmate complaints against staff could have resulted in “(a) serious physical injury
to staff and inmates; (b) other misconduct of staff and inmates, such as fights and verbal abuse;
and (a) lawsuits, fines and loss of government contracts.” Pugh Dec., ECF No. 29-2 at PageID #:
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1148. Plaintiff’s opposition does not refute the seriousness of his abdication.3 Moreover,
Plaintiff overlooks that his employment was terminated based on a combination of serious
violations of CCA’s policies. His abdication of his core duty and his use of profanity (more than
once) toward a fellow employee led to his discharge. Plaintiff has failed to show that the
proposed comparators also engaged in more than one egregious violation.
Plaintiff also attempts to establish pretext by pointing to Defendants’ acknowledgment of
his disability. See, e.g., ECF No. 33 at PageID #: 1623 (citing to Defendants Pugh’s statement
that Plaintiff has “serious psychological problems” and is “a very troubled person who lives a
painful life”); Id. at PageID #: 1622 (citing to Defendant Pugh’s statement that Plaintiff “is not
well.”). Ohio law prohibits an employer from discriminating against an employee on the basis of
his disability. It does not prohibit an employer from acknowledging an employee’s
disability—and for good reason. If mere acknowledgment of disability were prohibited, Plaintiff
would not have reaped the benefits of Defendant Pugh’s offer of “scheduling flexibility” to
“make sure [Plaintiff] got the treatment he needed,” for example. See Id. at PageID #: 1617.
Construing the evidence and all reasonable inferences drawn therefrom in the light most
favorable to Plaintiff, he has failed to prove pretext and not shown that there are triable issues in
this case.
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The employees who were aware of Plaintiff’s conduct may have violated CCA’s
policies by failing to report it, see Id. ¶ 20; nonetheless, their error is not of comparable
seriousness to engaging in the conduct itself.
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IV. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment, ECF No. 29, is
granted. The final pretrial and trial are hereby cancelled.
IT IS SO ORDERED.
July 15, 2016
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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