Workman v. University of Akron

Filing 63

Memorandum Opinion: Defendant's motion for summary judgment is granted. This case is dismissed and closed. (Related Doc. No. 44 ). Judge Sara Lioi on 12/11/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAYNA WORKMAN,
PLAINTIFF,
vs.
UNIVERSITY OF AKRON,
DEFENDANT.

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CASE NO. 5:16-cv-156
JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court is the motion of defendant University of Akron (“UA”) for summary
judgment pursuant to Fed. R. Civ. P. 56 on the claims of plaintiff Dayna Workman (“Workman”)
in this Title IX case. (Doc. No. 44 [“Mot.”].) Workman opposes the motion (Doc. No. 53
[“Opp’n”]), and UA has filed a reply (Doc. No. 54 [“Reply”]). For the reasons that follow, UA’s
motion is granted.
I. BACKGROUND
Many of the background facts of this case are undisputed. Workman enrolled as a mater’s
student in UA’s Marriage and Family Counseling/Therapy Master’s Program (“Program”) in the
spring of 2012. (Doc. No. 46-1 (Deposition of Dayna Workman [“Workman Dep.”]) at 1789.1)
The Program generally consists of four components: (1) classroom coursework, (2) pre-practicum
field experience, (3) clinical requirements (practicum and internship courses), and (4) passage of
the Counselor Preparation Comprehensive Examination (“CPCE”) within three attempts. (See

1

All page number references are to the page identification number generated by the Court’s electronic filing system.

Doc. No. 44-3 (Declaration of Rebecca Boyle [“Boyle Dec.”]) ¶ 9; Doc. No. 44-2 (Declaration of
Karin Jordan [“Jordan Dec.”]) ¶ 9.)
Workman became pregnant in the fall of 2013. She told Jordan2 and Boyle3 in February
2014 that she was expecting a child that summer, but would be absent for only one week, and
would continue with her plan to take the Program’s practicum course in summer 2014. Workman
claims that Jordan and Boyle were skeptical that she would only be absent for one week after
childbirth, and indicated that if she needed to be absent more than one week, it may take two
semesters to complete the hourly requirements of the practicum course. (Workman Dep. 1825-26.)
Workman decided to proceed with her practicum in summer 2014 as planned, instead of deferring
her practicum until fall 2014.
According to Workman, Jordan and Boyle believed that a pregnant woman could not
succeed in the Program and set about ensuring that outcome. This allegation forms the basis of
Workman’s Title IX claims. Specifically, Workman alleges that as a consequence of
discrimination by Boyle and Jordan, (1) she did not receive sufficient clients to obtain the required
number of clinical hours for her practicum course in summer 2014 even though she was absent
only one week for childbirth, (2) she was denied an internship assignment, and (3) she failed three
attempts to pass the CPCE. (Doc. No. 1 (Complaint [“Compl.”]) ¶¶ 36-41.) When Workman failed
her competency examination for the third time in July 2015, she was dismissed from the Program.
(Id. ¶ 42.) Workman attributes her dismissal to pregnancy discrimination in violation of Title IX,
and she alleges that UA was deliberately indifferent to her discrimination claims. (Id. ¶¶ 45, 63.)
From 2014-2016, Jordan was the Interim Associate Dean of defendant’s College of Health Professions. Prior to
2014, Jordan was the Chair of the Department of Counseling. (Jordan Dec. ¶¶ 3, 5.)
2

Boyle has served as the Clinic Director for UA’s clinic for Individual and Family Counseling since 2013. (Boyle
Dec. ¶ 3.)
3

2

UA contends that it is entitled to summary judgment on Workman’s Title IX claims
because it is undisputed that: (1) she did not complete the required number of clinical hours during
the summer 2014 practicum for reasons other than pregnancy discrimination; (2) she received and
completed a Program internship assignment; and (3) she was dismissed because she failed to
satisfy a Program requirement of passing her competency examination in three attempts.
II. DISCUSSION
A. Summary Judgment Standard of Review
Summary judgment is appropriate where “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 fact is
material if its resolution affects the outcome of the lawsuit under the governing law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute is
genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If a reasonable jury could return a verdict for the nonmoving party, then summary
judgment is not appropriate. Id.
The moving party must provide evidence to the court which demonstrates the absence of a
genuine dispute as to any material fact. Once the moving party meets this initial burden, the
opposing party must come forward with specific evidence showing that there is a genuine issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986);
Anderson, 477 U.S. at 250. It is the nonmoving party’s duty to point out specific facts in the record
that create a genuine issue of material fact; the trial court does not have a duty to search the record
“to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034

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(D.C. Cir. 1988)); Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992) (citation
omitted).
The nonmoving party may oppose a summary judgment motion “by any of the kinds of
evidentiary material listed in Rule 56(c), except the mere pleadings themselves[.]” Celotex, 477
U.S. at 324. The Court must view all facts and evidence, and inferences that may be reasonably
drawn therefrom, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). General averments or conclusory allegations of an
affidavit do not create specific fact disputes for summary judgment purposes. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888-89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990).
“Summary judgment requires that a plaintiff present more than a scintilla of evidence to
demonstrate each element of a prima facie case.” Garza v. Norfolk S. Ry. Co., 536 F. App’x. 517,
519 (6th Cir. 2013) (citing Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir. 2007)).
“‘The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will
be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving
party].’” Street, 886 F.2d at 1477 (quoting Anderson, 477 U.S. at 252).
The district court’s review on summary judgment is a threshold inquiry to determine
whether there is the need for a trial due to genuine factual issues that must be resolved by a finder
of fact because those issues may reasonably be resolved in favor of either party. Anderson, 477
U.S. at 250. That is, the Court must determine “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.” Id. at 251-52; see also Wexler v. White’s Fine Furniture, Inc., 317 F.3d
564, 578 (6th Cir. 2003).

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[Summary judgment is required] against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial. In such a situation, there
can be no genuine issue as to any material fact, since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial. The moving party is entitled to judgment as a matter of
law because the nonmoving party has failed to make a sufficient showing of an
essential element of her case with respect to which she has the burden of proof.
Celotex, 477 U.S. at 322-23 (internal quotation marks and citation omitted).
B. Title IX—discrimination
Workman alleges pregnancy discrimination under Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681, et seq., (“Title IX”), which provides that “[n]o person in the United
States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving Federal financial
assistance[.]” 20 U.S.C. § 1681(a). The discrimination prohibited by Title IX includes
discrimination related to pregnancy. Federal regulations prohibit a recipient of federal funds from
discriminating against any student, or excluding any student from its education programs or
activities, “on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of
pregnancy or recovery therefrom[.]” 34 C.F.R. § 106.40(b)(1).
Title IX claims by students against a university are analyzed by applying the Title VII
standard for proving discriminatory treatment. See Ivan v. Kent State Univ., No. 94-4090, 1996
WL 422496, at *2 (6th Cir. July 26, 1996) (collecting cases); Nelson v. Christian Bros. Univ., 226
F. App’x 448, 454 (6th Cir. 2007) (“Generally, courts have looked to Title VII, 42 U.S.C. §§
2000e, as an analog for the legal standards in both Title IX discrimination and retaliation claims.”)
(collecting cases). Title IX claims can be established by both direct and circumstantial evidence.
Direct evidence is “that evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the [defendant’s] actions.” Jacklyn v. Schering5

Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999) (Title VII) (citations
omitted); Gordon v. Traverse City Area Pub. Sch., 182 F. Supp. 3d 715, 724-25 (W.D. Mich. 2016)
(Title IX retaliation) (citing Jacklyn, supra.)), aff’d, 686 F. App’x 315 (6th Cir. 2017).
Workman may also establish a Title IX discrimination claim by circumstantial evidence.
Circumstantial evidence is evidence which permits an inference of discrimination,4 and is analyzed
utilizing the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973)/Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207
(1981) burden-shifting framework. See Gordon, 182 F. Supp. 3d at 725; McConaughy v. Univ. of
Cincinnati, No. 1:08-cv-320-HJW, 2011 WL 1459292, at *8 (S.D. Ohio Apr. 15, 2011) (citing,
among authority, Ivan, 1996 WL 422496, at *2) (further citation omitted). Under this framework,
the burden is first upon plaintiff to establish a prima facie case. If plaintiff meets this burden, the
burden shifts to defendant to articulate a legitimate non-discriminatory reason for its adverse
treatment of plaintiff. Once defendant does so, the burden shifts back to plaintiff to demonstrate
that defendant’s articulated reason is a pretext for discrimination.
Workman’s opposition to UA’s motion focuses entirely on the McDonnell
Douglas/Burdine burden-shifting framework for establishing a Title IX claim. Thus, it appears that
Workman concedes that she has no direct evidence of pregnancy discrimination, and the Court
will limit its analysis accordingly.

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Under Title VII, a plaintiff may demonstrate discrimination by circumstantial evidence in one of two ways: (1)
presenting circumstantial evidence that permits an inference of discrimination; or (2) showing that both legitimate and
illegitimate reasons motivated the adverse employment decision. The latter category is sometimes referred to as a
“mixed-motive” case. See Cummings v. Motel 6 Operating L.P., No. CIV.A. 07-145-KSF, 2008 WL 2475735, at *2
(E.D. Ky. June 18, 2008) (citing Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir. 2003)). Workman does not
argue here that this is a mixed-motive case.

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1. Prima facie case
The parties agree that, to establish a prima facie violation of Title IX, Workman must show
that: (1) she was a member of a protected class; (2) she was performing the academic requirements
at a level sufficient to meet her educator’s legitimate expectations; (3) she suffered adverse
treatment; and (4) the educational program continued to instruct and credit other students. (Mot.
at 290; Opp’n at 2993 (both citing McConaughy, 2011 WL 1459292, at *8 and Darian v. Univ. of
Massachusetts, 890 F. Supp. 77, 91 (D. Mass. 1997) (citing Lipsett v. Univ. of Puerto Rico, 864
F.2d 881, 897 (1st Cir. 1988)).) Another district court in the Sixth Circuit, however, has declined
to follow the prima facie framework of Darian, reasoning that the Sixth Circuit applies framework
of Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000) to pregnancy discrimination
claims under Title VII and, because Title IX claims are analyzed under the same legal framework
as Title VII claims, the prima facie analysis of Cline, not Darian, applies to Title IX pregnancy
discrimination claims. Varlesi v. Wayne State Univ., 909 F. Supp. 2d 827, 856 (E.D. Mich. 2012);
see also Jordan v. Henderson, 229 F.3d 1152 (6th Cir. 2000) (Table) (citing Cline framework to
establish pretext in Title VII pregnancy discrimination case). A recent Sixth Circuit decision
confirms that Cline is the appropriate prima facie framework to apply to Title IX pregnancy
discrimination claims. Kubik v. Cent. Mich. Univ. Bd. of Tr., et al., No. 16-2783, 2017 WL
5900644, at * 3 (6th Cir. Nov. 30, 2017) (citing Cline, 206 F.3d at 658).
While the first three elements of a prima facie case under Cline are the same as the Darian
framework, the fourth element is not. Under Cline, the fourth element is the existence of a nexus
between the pregnancy and the alleged adverse treatment. Id. (citing Cline, 206 F.3d at 658). The
fourth factor under either framework, however, is not dispositive of the Court’s prima facie

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analysis. Thus, even though the parties did not brief Cline as the applicable prima facie framework,
the Court’s analysis would be the same.
UA contends on summary judgment that there is no genuine dispute of material fact that
Workman cannot establish the second and third factors of a prima facie case of pregnancy
discrimination under Title IX because she cannot show: (1) that she was performing the academic
requirements of the Program; or (2) that she suffered adverse treatment prior to being dismissed
from the Program. (Mot. at 291-92).
Given the undisputed facts in this case as discussed below, including that Workman failed
her competency examination three times (passage of which was required by the Program), the
Court finds it unlikely that Workman can successfully carry her burden on summary judgment to
establish a prima facie case of pregnancy discrimination. That said, the requirements for making
out a prima facie case of Title VII discrimination are “not onerous,” but “a burden easily met.”
Cline, 206 F.3d at 660 (quotation marks and citations omitted). Thus, the Court will assume for
the purpose of this analysis (and in the interest of judicial efficiency), that Workman has satisfied
her burden on summary judgment to establish a prima facie case.
2. Legitimate nondiscriminatory reason
In the next phase of the McDonnell Douglas/Burdine analysis, the burden shifts to UA to
articulate a legitimate, non-discriminatory reason for its actions. Regarding Workman’s allegations
of pregnancy discrimination with respect to her Program internship, UA points out that she fully
participated in an internship at Catholic Charities. With respect to Workman’s contention that she
was “denied” an internship at her preferred site, the McKeon Education Group (“McKeon”), UA
points out that Workman’s internship at McKeon was conditional, not because of Workman’s
pregnancy, but because McKeon lacked an on-site supervisor. (Mot. at 293.)
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With respect to Workman’s claim that she could not successfully complete the summer
2014 practicum because UA deprived her of clients as a consequence of her pregnancy, UA
maintains that she was assigned available clients in the same manner as her classmates and
consistent with the ethical rules that govern the profession regarding client continuity of care when
an absence is anticipated. Moreover, UA points out that Workman successfully completed her
practicum in fall 2014, and moved ahead to the internship phase of the Program. (Id. at 293-94.)
Finally, as to Workman’s claim that she was dismissed from the Program in 2015 because
of her pregnancy in 2014, UA states that Workman was dismissed because she failed three attempts
to pass her comprehensive examination. To the extent Workman claims that she would have passed
the oral examination (which followed two failures to pass the written examination) if Boyle and
Jordan were not included on the panel, UA points out that the three other Program faculty on the
oral examination panel independently gave Workman a failing grade. (Id. at 294.)
In her opposition, Workman does not contend that UA failed to satisfy its burden to
articulate a legitimate non-discriminatory reason under the McDonnell Douglas/Burdine burden
shifting analysis. (See Opp’n at 2995.) Thus, the burden shifts back to Workman to advance
evidence which creates a genuine issue of material fact with respect to whether UA’s articulated
reasons are a pretext for unlawful discrimination.
3. Pretext
In order to survive summary judgment at this phase of the analysis, Workman must advance
evidence showing that there is a genuine issue of material fact that pregnancy discrimination, not
UA’s articulated reasons, is the real reason for its actions. Workman can do this by showing that
UA’s reasons: (1) have no basis in fact; (2) did not motivate UA’s actions; or (3) were insufficient
to motivate UA’s actions. See Suits v. The Heil Co., 192 F. App’x 399, 405 (6th Cir. 2006) (Title
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VII pregnancy discrimination) (citing Manzer v. Diamond Shamrock Chems, Co., 29 F.3d 1078,
1084 (6th Cir. 1994)). “These three categories are simply a ‘convenient way of marshaling
evidence and focusing it on the ultimate inquiry: did the [defendant dismiss plaintiff] for the stated
reason or not?’” Koch v. Lightning Transp., LLC, No. 3:13-0225, 2015 WL 66971, at *4 (M.D.
Tenn. Jan. 6, 2015) (Title VII pregnancy discrimination) (quoting Tingle v. Arbors at Hilliard, 692
F.3d 523, 530 (6th Cir. 2012)).
In order to show UA’s proffered reasons have no basis in fact, Workman must produce
evidence from which a reasonable jury could conclude that those reasons are factually false. To
establish pretext with respect to the second category, Workman must advance evidence that calls
UA’s credibility into question because the evidence tends to show that pregnancy discrimination
was the more likely explanation for UA’s actions than the articulated reasons. Finally, Workman
may also establish pretext by producing evidence that shows other Program students who engaged
in substantially the same conduct, but were not pregnant, did not suffer the same adverse treatment.
See McConaughy, No. 1:08-cv-320, 2010 WL 6511141, at *11 (citing Manzer, 29 F.3d at 1082)
(S.D. Ohio Sept. 28, 2010)), report and recommendation adopted, 2011 WL 1459292. Workman
fails to establish pretext under any of these three considerations.
Clinical requirements—practicum
There is no dispute that Workman did not obtain the required number of clinical hours
during her summer 2014 practicum and had to take the practicum again in fall 2014 in order to
complete the requirements.5 Workman claims that she was unable to successfully complete the

Practicum students have a set time and number of hours that they are in the clinic to see clients, referred to as “block”
hours. The students select their own block hours, and Workman selected Saturday. (Workman Dep. at 1853.)
Practicum students are required to obtain 40 clinical hours to satisfy the practicum requirements, 20 hours of which
may be group hours, which are easier to obtain than individual “relational” hours. (Katafiasz Dec. ¶¶ 12-13.)
5

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practicum in summer 2014 because Jordan and Boyle did not give her clients before the birth of
her child and after her return, while all of the other students in the summer 2014 practicum who
were not pregnant received more clients than she did and successfully completed the practicum.
UA contends that it is entitled to summary judgment because Workman was assigned clients in
the same manner as other practicum students but nevertheless did not complete the required
number of hours, and she can advance no evidence from which a reasonable jury could concluded
that the real reason she failed to complete the summer practicum is because of discrimination by
Jordan and Boyle. The Court agrees.
Boyle, the clinic director, met with Workman and her classmates regarding the practicum
and internship components of the Program. (Workman Dep. at 1804; Jordan Dec. ¶ 11; Boyle Dec.
¶ 11.) Boyle advised all of them that it can be more difficult to obtain the required number of client
contact hours during summer semester than during fall semester because the fall term is a longer
semester, and more clients seek treatment at the clinic during fall semester. (Boyle Dec. ¶¶ 11, 15;
Workman Dep. at 1828-29.) Practicum students are assigned clients, not hours, in the clinic. UA
cannot control how many clients come to the clinic for counseling, for what type of counseling, or
whether clients will even appear for their appointments and, thus, cannot guarantee the number of
clinical hours available to practicum students. (Boyle Dec. ¶ 15; Doc. No. 44-19 at 455; Workman
Dep. at 1855-56, 1866, 1974-75, 1996.) These facts are not disputed by Workman.
Student absences are a factor in assigning clients to practicum students. Consistent with
the ethical obligations governing marriage and family therapists and counselors (including student
clinicians), students are generally not assigned new clients during the three-week period before the
end of a semester in order to ensure that student clinicians have time to develop relationships with
their clients and clients do not feel “abandoned” shortly after treatment begins. For the same
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reasons, student clinicians with planned absences during a practicum are not assigned new clients
for a period of time before the absence. (Jordan Dec. ¶ 16; Boyle Dec. ¶ 24; Doc. No. 44-4
(Declaration of Heather Katafiasz [“Katafiasz Dec.”]) ¶ 27; Workman Dep. at 1798-1801, 183031, 1860, 1906-07, 1951; see Doc. No. 44-10 (Marriage and Family Counseling/Therapy—
Master’s Degree Handbook [“MFC/T Master’s Handbook”]) at 365.) Katafiasz6 explained to
Workman that she would not be assigned new clients approximately two weeks before her
anticipated due date because of concerns regarding client abandonment. (Katafiasz Dec. ¶ 27;
Workman Dep. at 1857-58.) Workman does not dispute, and indeed agrees, that abandonment is
unfair to clients and, as a student counselor in the Program, she was required to adhere to the
ethical requirements of the American Association of Marriage and Family Therapists. (Workman
Dep. at 1798-1801, 1830-31, 1860, 1906-07, 1951.)
But Workman nonetheless contends that “abandonment” is simply a pretext for pregnancy
discrimination because “in the past, [UA] did not intentionally stop assigning patients to students
in the practicum when they knew an absence may occur or if the student had an unexpected
absence. . . . When other students had a planned an absence for things such as a wedding or other
life events they were allowed to reschedule clients and work around the planned absence to ensure
that the student was able to complete all of their clinical hours for the practicum.” (Opp’n at 2987.)
In support, Workman cites the deposition testimony of Jordan and Boyle. But the cited testimony
does not support her argument.
Workman has no knowledge of how many clients came to the clinic during summer 2014,
how many clients the other five students in her practicum course received, or if any of them

6

Katafiasz has served as a professor in various departments, and is familiar with the requirements of the Program.
(Katafiasz Dec. ¶¶ 3-5.) She taught Workman’s practicum course in summer and fall 2014. (Id. ¶¶ 22-23.)

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received more clients than she did. (Workman Dep. at 1855-56.) She does not rebut the evidence
offered by UA that during the summer 2014 semester, there were a total of forty-one students in
eight practicum courses seeking client hours; of those forty-one, twelve were Program students
and eight were doctoral students. In total, 147 clients were assigned to the forty-one practicum
students during the summer 2014 semester. (Boyle Dec. ¶ 42.)
Regarding her own client assignments, Workman does not know when she stopped
receiving new clients before her child was born or how many clients came to the clinic, if any,
during that period. (Workman Dep. at 1855, 1866, 1972.) More importantly, Workman offers no
evidence to rebut or dispute the evidence advanced by UA that before she was absent for the birth
of her child, she had the approximately the same number of relational client hours as three of her
classmates, and more than the other two. (Katafiasz Dec. ¶ 28; Mot. at 281 (citing record).)
Workman also claims she was discriminated against because she did not receive as many
clients as the other students in the practicum after she returned from childbirth. But Workman does
not know how many clients were even available during that time period. Nor does she dispute
UA’s evidence that during the period between her return to the clinic and the end of the semester,
there were three clients available to be assigned and one of those clients was assigned to her.
(Boyle Dec. ¶ 47; Katafiasz Dec. ¶ 29; Workman Dep. at 1858, 1975.)
The foundation of Workman’s discrimination claim concerning the summer 2014
practicum is that she “was the only student to not get enough hours during her first practicum” and
that UA “ensured that all other students were accommodated and given what they needed to
succeed.” (Opp’n at 2995; Workman Dep. at 1976.) While Workman makes this argument in
opposing the motion, it is belied by her own testimony. She acknowledges that two other students
were also retaking the practicum in the fall 2014 semester. (Workman Dep. at 1875-76.)
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Moreover, Workman was not treated less favorably than the other students retaking the
practicum in fall 2014. When she did not obtain the required number of clinical hours in summer
2014, she was given an “in progress” grade, permitted to carry over her summer clinical hours to
the fall 2014 semester, and permitted to complete her practicum in fall 2014 with no additional
tuition charge. One of the students also retaking the practicum in fall 2014 (who did not have a
medical excuse) was given a failing grade, not permitted to carry over summer clinical hours to
the fall 2014 semester, and not permitted to retake the practicum at no charge. (Katafiasz Dec. ¶
34; Workman Dep. at 1875-77.) The third student was retaking the practicum due to a medical
excuse and, like Workman, was permitted to transfer summer 2014 clinical hours to the fall
semester and not charged fall tuition. (Katafiasz Dec. ¶ 34.)
As the non-moving party, Workman has an affirmative duty to point to specific facts in the
record which create a genuine issue of material fact from which a reasonable jury could conclude
that she did not complete her practicum hours in summer 2014 as a consequence of unlawful
discrimination in violation of Title IX. Fulson, 801 F. Supp. at 4. Here, UA has advanced evidence
that Workman was (1) assigned clients in the same manner as other students in the summer 2014
practicum who were not pregnant, (2) not the only student who failed to obtain the required number
of hours during their first practicum semester, and (3) was not treated less favorably that other
students taking a second practicum semester. Workman has not rebutted this evidence with specific

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facts in the record showing a genuine dispute of fact, but with conclusory and unsupported
assumptions,7 which are insufficient to withstand summary judgment in the face of a properly
supported motion. See Wade v. Knoxville Util. Bd., 259 F.3d 452, 463 (6th Cir. 2001)
(“[C]onclusory allegations and [the plaintiff’s] perceptions . . . are not sufficient to stave off
summary judgment.”) (quoting, with favor, the district court opinion); Marshall v. Decatur Cnty.
Gen. Hosp., 698 F. Supp. 2d 1009, 10115 (W.D. Tenn. 2010) (citations omitted).
Accordingly, the Court concludes that there are no genuine factual issues concerning
pretext that must be resolved by a factfinder because they may reasonably be resolved in favor of
either party. Anderson, 477 U.S. at 250. Thus, UA is entitled to summary judgment on Workman’s
Title IX claim regarding her practicum.
Clinical requirements—internship
In addition to the practicum, Program students must complete an internship. The Program
has pre-approved internship sites that meet accreditation and Program requirements, one of which
is that the internship site have a licensed supervisor on site. Program students, however, are not
limited to pre-approved sites and may seek approval to intern at other sites which satisfy the
Program’s requirements. (Jordan Dec. ¶ 21; Boyle Dec. ¶¶ 25-26; Doc. No. 44-20 (Marriage and
Family Therapy/Counseling Program—Masters Internship Handbook [“Program Internship
Handbook”] at 528 (section A (“Responsibilities of the Cooperating Agency/Site Supervisor”).)

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Workman Dep. at 1996:
Q So all five students in your class got more
clients than you?
A From my understanding, yes.
Q How do you know that?
A Because they received their hours.
Q So you’re assuming that, right?
A Yes.

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It is undisputed that Workman completed her Program internship with Catholic Charities,
which is a pre-approved site. (Workman Dep. at 1910-11.) But Workman claims that UA denied
her participation in a paid internship at McKeon because of her pregnancy.
McKeon was not a pre-approved site. (Boyle Dec. ¶ 30.) After investigating McKeon at
Workman’s request, Boyle determined that McKeon met Program requirements, except for the
requirement that the internship supervisor be located in the same building as the student intern.
(Boyle Dec. ¶¶ 36-37; Workman Dep. at 1845.) There is no dispute that at McKeon, Workman
and her internship supervisor would not be in the same building. (Workman Dep. at 1832-35.) As
Workman understood it, the Program previously permitted students to intern at sites where a
supervisor was not present, but a problem had resulted and such internships were no longer
permitted for liability reasons.8 (Id. at 1834, 1837-38.)
Workman has advanced no evidence that the requirement of an on-site internship
supervisor was not, in fact, a Program policy. Nor does she offer any evidence that another student
was permitted to intern at a location without an on-site supervisor, while she was not. Moreover,
the issue with McKeon’s internship supervisor did not prevent Workman from completing her
Program internship requirement as there is no dispute that she successfully completed her
internship at Catholic Charities.
Workman’s unsupported self-serving testimony to the contrary is insufficient to establish
a genuine dispute of material fact on summary judgment. Hollis v. Ply-Trim, Inc., No.

8

Workman contacted the state licensing board for marriage and family therapists and counselors in Ohio, and was
told that the board would permit an internship with an off-site supervisor. There is no dispute, however, that the
board’s “approval” was contingent upon the agreement of the internship site and the university to such an arrangement.
(Workman Dep. at 1843.)

16

4:08CV2491, 2010 WL 11401633, at *8 (N.D. Ohio Jan. 6, 2010) (citing, among authority, Brooks
v. American Broadcasting Companies, Inc., 999 F.2d 167, 172 (6th Cir. 1993)). She has advanced
no evidence from which a reasonably jury could conclude that UA’s stated reason for conditioning
an internship at McKeon upon the availability of an on-site supervisor was a pretext for pregnancy
discrimination in violation of Title IX. Thus, UA is entitled to summary judgment on Workman’s
Title IX claim with respect to her internship.
Comprehensive examinations
There is no dispute that Program students must pass the CPCE in order to remain in the
Program. Workman does not dispute that she did not pass her competency examination in three
attempts, but contends that she failed because of pregnancy discrimination by Jordan and Boyle,
and that is the real reason for her dismissal from the Program.
The CPCE is given once a semester. A student has two opportunities to pass the written
test. If a student fails to pass the CPCE after two attempts, she will be administered an oral
comprehensive examination. Workman understood that if a student fails the written CPCE twice
and fails the oral exam, the student is dismissed from the Program. (Jordan Dec. ¶¶ 9, 17-19;
Workman Dep. at 1927-28; Doc. No. 44-11.)
October 2014 CPCE
Because Boyle and Jordan allegedly discriminated against her in the summer 2014
practicum with respect to client assignments, Workman argues that she was forced to continue her
practicum in fall 2014. According to Workman, she worried about having to complete her
practicum hours and study for the CPCE at the same time, which she implies caused her to perform
poorly on the examination. Yet, Workman ultimately admits that she does not know why she did
not pass the CPCE on her first attempt. (Workman Dep. at 1901.)
17

As an initial matter, having found that UA is entitled to summary judgment on Workman’s
Title IX claim regarding her summer 2014 practicum, UA is also entitled to summary judgment
on the claimed ripple effect of that alleged discrimination. Furthermore, there is no evidence that
UA’s alleged discrimination in summer 2014 placed Workman in a different position than other
Program students. There is no dispute that Workman was not the only Program student studying
for the CPCE and taking the fall 2014 practicum at the same time. And some of those students
(unlike Workman who brought carry-over clinical hours to the fall practicum) were attempting to
obtain all of their clinical practicum hours while preparing for the CPCE. (Workman Dep. 189899; see also Katafiasz Dec. ¶ 43 (“Because it is standard for MFC/T masters students to take the
CPCE in the same semester as Practicum, all students face the same challenges, including
balancing the clinical course, meeting with clients and studying for the exam.”).)
March 2015 CPCE
Workman successfully completed her practicum in the fall 2014 semester, began her
internship in the spring 2015 semester, and took the CPCE for the second time in March 2015.
Workman claims that she sought help from Boyle, but was “denied” assistance in preparing for
her second attempt at the CMPCE. (Opp’n at 2989, citing Workman Dep. at 1900 (referring to
meeting with Jordan regarding October CPCE).) The evidence cited by Workman, however, does
not support this argument. Indeed, Workman testified that she did not ask Jordan for any
accommodation to help her take either the written or oral examinations. (Workman Dep. at 1925.)
Workman did not pass her second attempt at the CPCE in March 2015. She testified that
she was “anxious” about the second test, and does not know why she did not pass. (Id. at 1915-16;
1924-25.)

18

Oral examination July 2015
Because she failed two written attempts to pass the CPCE, Workman was administered an
oral examination by all five of the Marriage and Family Counseling/Therapy faculty in July 2015.
Workman contacted Katafiasz for help in preparing for the oral exam, and Katafiasz responded.
(Id. at 1944.)
But Workman did not pass the oral examination. She does not dispute that all five Program
faculty members independently scored her performance, or that each faculty member separately
concluded that she did not pass the exam. (Jordan Dec. ¶¶ 31-35; Boyle Dec. ¶¶ 54-59; Katafiasz
Dec. ¶¶ 48-52; Doc. No. 44-5 (Declaration of David Tefteller [“Tefteller Dec.”]) ¶¶ 11-15; Doc.
No. 44-6 (Declaration of Rikki Patton [“Patton Dec.”]) ¶¶ 9-12.)
Workman implies that she failed the oral exam because Jordan and Boyle were on the
panel, and claims she would have “felt more comfortable” if they were not present. (Workman
Dep. at 1997.) But she offers no evidence that their presence on the panel was improper or that
they asserted any improper influence over the other three faculty members on the panel.
Workman claims that Jordan and Boyle gave her a failing grade on the oral exam because
she was absent a week during the summer 2014 practicum for the birth of her child (Workman
Dep. at 1949), but she makes no such argument with respect to Katafiasz, Tefteller,9 and Patton,
or offer any evidence to support her assertion that the panel was “biased” (Opp’n at 2989). Indeed,
Workman does not dispute that one of the faculty members on the panel who gave her a failing
grade was unaware of her pregnancy in 2014, and offers no evidence that his assessment of her
performance was anything but independent. (Tefteller Dec. ¶¶ 15, 18.)

9

David Tefteller is an assistant professor in the Program, and plaintiff took his internship course in spring and summer
2015.

19

Finally, Workman implies that she failed the oral examination because Jordan compiled
the questions for the test. (Opp’n at 2995.) But Workman does not dispute that the questions Jordan
compiled from other faculty members for the oral test addressed the same eight core competency
areas covered by the written CPCE (see Jordan Dec. ¶ 18; Tefteller Dec. ¶ 11; Katafiasz Dec. ¶
48). Nor does she advance any evidence that the questions were unfair, inappropriate, or otherwise
improperly tainted by Jordan’s alleged discrimination against her because of her pregnancy.
With respect to her dismissal from the Program after the third failure, Workman has offered
no evidence that passing the test in three attempts was not a Program requirement or a legitimate
expectation of defendant for continuation in the Program. There are no disputed facts from which
a reasonable jury could conclude that defendant’s stated reason for dismissing Workman from the
Program—failing to pass the CPCE after three attempts—was a pretext for Title IX pregnancy
discrimination. See McConaughy, 2011 WL 1459292, at *10 (Universities have legitimate
educational reasons for expecting students to complete program requirements and Title IX does
not prohibit a university from failing a pregnant student who does satisfy those requirements.)
(citing Se. Cmty. Coll. v. Davis, 442 U.S. 397, 413, 99 S. Ct. 2361, 60 L. Ed. 2d 980 (1979)).
Accordingly, UA is entitled to summary judgment on Workman’s claim that she was dismissed
from the Program in violation of Title IX.
C. Title IX—Deliberate Indifference
After failing her oral examination, Workman complained to Dr. David Gordon (“Gordon”),
the Dean of the College of Health Professions at the University of Akron, 10 regarding “systemic”

10

See Doc. No. 44-7 (Declaration of David Gordon, M.D. [“Gordon Dec.”]) ¶ 3.)

20

gender and pregnancy discrimination in the Program. (Compl. ¶ 43.) She claims that, in violation
of Title IX, Gordon was deliberately indifferent to her complaint. (See id. ¶¶ 45, 65.)
To establish deliberate indifference under Title IX, Workman must demonstrate that an
official with authority to institute corrective measures with actual notice of the alleged
discrimination was deliberately indifferent to the discrimination. See Mallory v. Ohio Univ., 76 F.
App’x 634, 638 (6th Cir. 2003) (citing See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
277, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998)). Title IX, however, does not afford a claimant the
right “to make particular remedial demands.” Davis Next Friend LaShonda D. v. Monroe Cty. Bd.
of Educ., 526 U.S. 629, 648, 119 S. Ct. 1661, 1674, 143 L. Ed. 2d 839 (1999).
UA contends that the law in the Sixth Circuit is unsettled as to whether sexual harassment
is a “critical component” of a Title IX deliberate indifference claim and, if it is, Workman does
not allege that she was sexually harassed, complained of sexual harassment, or that UA ignored
her complaints of sexual harassment. (Mot. at 296, citing Sahm v. Miami Univ., No. 1:14-cv-698,
2015 WL 93631(S.D. Ohio Jan. 7, 2015).) See also Doe v. Ohio State Univ., 239 F. Supp. 3d 1048,
1068 (S.D. Ohio 2017) (citing Doe v. Univ. of the South, 687 F. Supp. 2d 744, 757–58 (E.D. Tenn.
2009) (limiting deliberate indifference to sexual harassment cases), but see Wells v. Xavier Univ.,
7 F. Supp. 3d 746, 751-52 n.2 (S.D. Ohio 2014) (deliberate indifference not limited to sexual
harassment cases)). This Court need not decide whether sexual harassment is a “critical
component” of a Title IX claim, because Workman’s deliberate indifference claim cannot survive
summary judgment even absent that requirement.
In order to establish a prima facie case of deliberate indifference under Title IX, Workman
must show that: 1) she was subject to discrimination; 2) she provided actual notice to an official
at the university with authority to take corrective action; and 3) the institution’s response was
21

deliberately indifferent. See Johnson v. Galen Health Inst., Inc., 267 F. Supp. 2d 679, 684 (W.D.
Ky. 2003) (prima facie case of deliberate indifference in sexual harassment case) (citations
omitted). Workman cannot establish the first element of her prima facie case because the Court
has concluded that UA is entitled to judgment as a matter of law on Workman’s Title IX claim of
pregnancy discrimination. Thus, UA is entitled to summary judgment on her deliberate
indifference claim. See Celotex, 477 U.S. at 322-23.
Were the Court required to continue its analysis, Workman also fails to establish a genuine
issue of material fact with respect to the third element of a prima facie case of deliberate
indifference. A defendant is deliberately indifferent when its response, or lack thereof, is “‘clearly
unreasonable in light of the known circumstances[.]’” Doe v. Springfield-Clark Career Tech.
Center, No. 3:14-cv-00046, 2015 WL 5729327, at *7 (S.D. Ohio Sept. 30, 2015) (quoting McCoy
v. Bd. of Educ., Columbus City Schs., 515 F. App’x 387, 391-92 (Table) (citing Davis v. Monroe
Cnty. Bd. of Educ., 526 U.S. 629, 648, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999))); Doe by Pahssen
v. Merrill Cmty. Sch. Dist., No. 08-11539-BC, 2009 WL 10674325, at *13 (E.D. Mich. Dec. 17,
2009), aff’d sub nom. Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356 (6th Cir. 2012), (citing
Davis, 526 U.S. at 648).
After failing her oral examination in July 2015, Workman raised her concerns about
pregnancy discrimination with Gordon11 and UA’s Title IX12 office, and UA’s Equal Employment
Opportunity and Affirmative Action (“EEO/AA”) office instituted an investigation after receiving
a letter from Workman’s attorney in September 2015. (Mot. at 296-98.) Workman offers no

11

The parties dispute whether Workman adequately raised pregnancy discrimination with Gordon.

With respect to Workman’s contact with the Title IX office, she asked general questions but provided no specific
details and did not further follow-up with that office. (Workman Dep. at 1960-64.)
12

22

evidence that before raising these complaints, she ever complained to any of the five faculty
members in the Program, or anyone at the university, that she was being discriminated against due
to her pregnancy. (Workman Dep. at 1903-04; 1934-35; see also Jordan Dec. ¶ 37, Boyle Dec. ¶
60, Katafiasz Dec. ¶ 40, Tefteller Dec. ¶ 19.)
Workman’s opposition to UA’s motion regarding her deliberate indifference claim focuses
entirely on Gordon’s response to her complaint, which she views as inadequate. She entirely
ignores, however, the investigation conducted by UA’s EEO/AA office, and does not dispute the
evidence advanced by UA that its EEO/AA office conducted a timely, thorough, and responsive
investigation. (See Jordan Dec. ¶ 39; Boyle Dec. ¶ 61; Katafiasz Dec. ¶ 53; Gordon Dec. ¶ 12;
Doc. No. 44-9 (Declaration of Daniel Nicolas [“Nicolas Dec.”]) ¶¶ 4-8; Doc. No. 44-48; Workman
Dep. at 1967; 1987-90). Thus, even if Gordon’s response to Workman’s complaint was inadequate,
a reasonable jury could not conclude from the undisputed evidence that UA’s EEO/AA
investigation was unreasonable under the circumstances and deliberately indifferent to Workman’s
discrimination claims. See Springfield-Clark Career Tech. Ctr., 2015 WL 5729327, at *5.
Accordingly, to the extent that Workman has asserted a viable deliberate indifference claim
under Title IX, UA is entitled to summary judgment on that claim.
III. CONCLUSION
For all of the foregoing reasons, UA’s motion for summary judgment is granted. This case
is dismissed and closed.
IT IS SO ORDERED.
Dated: December 11, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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