Longino v. Cincinnati City of

Filing 48

ORDER granting defendant City of Cincinnati's 37 Motion for Summary Judgment. This action is Dismissed on the docket of the Court. Signed by Magistrate Judge Karen L. Litkovitz on 6/4/2013. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KEVIN H. LONGINO,
Plaintiff,

Case No. 1:12-cv-424
Litkovitz, M.J.

vs.

ORDER
CITY OF CINCINNATI,
Defendant.
Plaintiff Kevin Longino brings this action pro se against defendant City of Cincinnati
(City) alleging that the City discriminated and retaliated against him on the basis of his race and
disability in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e et seq. (Title VII) and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(ADA). This matter is before the Court on the City's motion for summary judgment (Doc. 37),
plaintiff's response in opposition (Doc. 42), and the City's reply memorandum. (Doc. 46). For
the reasons set forth below, the City's motion for summary judgment is GRANTED.

I.

Facts 1
The following undisputed facts are taken from plaintiff's amended complaint

and evidence submitted by the City in support of its summary judgment motion, including
plaintiff's deposition testimony, and the evidence submitted by plaintiff in opposition to the
motion for summary judgment.
Plaintiff is an African American male who has been employed by the City as a "Civil
Engineering Tech 2" (CET2) since 1989. (Doc. 11, 'J'J 7, 106, Amended Complaint; Doc. 42, 'J
1, Plaintiff's Affidavit). In 2001, plaintiff was injured in an accident during work hours which

1

0n April8, 2013, the undersigned entered an Order dismissing several ofplaintiffs claims, including his
Title VII and ADA claims as they relate to events occurring prior to November 29, 2010, and his retaliation claim as
it relates to events occurring prior to September 23, 2011. (Doc. 40). Accordingly, the recitation of facts is limited
to events relevant to the remaining claims.

caused him to become disabled. Doc. 42, ~~ 2-3. Due to his injuries, plaintiff was transferred to
a desk job with the Metropolitan Sewer District. Doc. 11, ~~ 37, 42, 94.
At some point in 2006, plaintiff was permitted to enter into a "flex schedule" whereby he
occasionally worked longer days so he could attend medical appointments during regular work
hours. Id.,

~~53-55;

Doc. 42, ~~ 33, 36. This "flex schedule" was memorialized in a

"Memorandum of Understanding" (MOU). Doc. 11, ~ 54? See also Doc. 3 8, Ex. 23 and Doc.
42, Ex. G (unsigned copies of September 15, 2006 MOU). The record contains meeting minutes
from a September 2010 meeting between plaintiff and several City employees which reflect that
plaintiff requested a flexible schedule similar to that agreed to in the 2006 MOU. (Doc. 38, Ex.
24). The record also includes a March 18, 2011 Quality Assurance Branch Agreement, similar to
the above MOU, signed by plaintiff, his supervisor, and a City Superintendent permitting
plaintiffto continue working a "flex schedule." (Doc 38, Ex. 25; Doc. 42, Ex. J). The 2011
MOU provides that the "agreement is contingent upon [plaintiff] providing documentation
(Doctor's Note) to justify the need" for the "flex schedule." Id. Further, the MOU states that it
is "in effect for a six month period following date of doctor's note, at which time another current
note shall be provided or this agreement is null and void." Id. The record contains the most
recent MOU between plaintiff and the City. (Doc. 38, Ex. 32, December 19, 2012 MOU). The
December 2012 MOU does not include any provisions requiring plaintiff to provide doctor's
notes for the MOU to be enforceable. Id.
Plaintiff has filed multiple grievances through his union to obtain transfer pay based on
his assertion that he has been performing the work of a CET3 while only receiving pay at a

2

The parties do not dispute that plaintiff is a member of the American Federation of State, County and
Municipal Employees (AFSCME) union. Pursuant to the labor agreement between the AFSCME and the City, an
MOU is necessary where a flex schedule is requested by a union member. See Doc. 42, Ex. Eat 2, 14 (Labor
Agreement).

2

CET2 level. (Doc. 11, ~~ 98, 100; Doc. 42,
(Doc. 11, ~~ 99, 101; Doc. 42,

~~54-55).

~

50). Plaintiffs grievances were unsuccessful.

See also Doc. 38, Exs. 8, 9 (2009letters confirming

that plaintiffs 2009 request for transfer pay was denied).
In June 2011, plaintiff was asked to take part in a software "experiment" and plaintiff
declined. (Doc. 11, ~~ 161-64; Doc. 38 at 29 (Plaintiffs Deposition)). Plaintiff was among
several employees, including at least one Caucasian employee 3 and one African-American
employee, who were asked to participate in the "experiment." (Doc. 38 at 29-41 (Plaintiffs
Deposition)). In September 2011, plaintiff received a rating of"Does Not Meet Expectations" in
the category of "Quality of Work" in his annual performance review; plaintiffs overall
evaluation was "Meets Expectations." (Doc. 11, ~ 154; Doc. 38, Ex. 4, Annual Employee
Performance Evaluation; Doc. 42, ~ 52).
At the close of discovery, the City moved for summary judgment on all of plaintiffs
remaining claims. (Doc. 3 7). The City argues it is entitled to judgment as a matter of law
because plaintiff cannot establish the prima facie elements for his race and disability
discrimination claims or his retaliation claim.

II.

Summary Judgment Standard of Review
The Court "shall grant summary judgment if the movant shows 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). An assertion of a undisputed fact must be supported by citations to particular
parts of the record, including depositions, affidavits, admissions, and interrogatory answers. The
party opposing a properly supported summary judgment motion '"may not rest upon the mere

3

The record is unclear as to how many Caucasian individuals were asked to participate in the software
"experiment." Compare Doc. 38 at 29 (plaintiff testified that Shawn Hall, an Africa-American employee, was
involved in the experiment) and Doc. 38, Ex. 3 (the City's response to plaintiff's discrimination charge states that
Shawn Hall is Caucasian).

3

allegations or denials of his pleading, but ... must set forth specific facts showing that there is a
genuine issue for trial."' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal
quotation omitted).
The Court is not duty bound to search the entire record in an effort to establish a lack of
material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399,404 (6th Cir. 1992). Rather,
the burden is on the non-moving party to "present affirmative evidence to defeat a properly
supported motion for summary judgment," Street v. JC. Bradford & Co., 886 F.2d 1472, 147980 (6th Cir. 1989), and to designate specific facts in dispute. Anderson, 477 U.S. at 250. The
non-moving party "must do more than simply show that there is some metaphysical doubt as to
the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The Court construes the evidence presented in the light most favorable to the non-movant and
draws all justifiable inferences in the non-movant's favor. United States v. Diebold, Inc., 369
U.S. 654, 655 (1962).
The Court's function is not to weigh the evidence and determine the truth of the matter,
but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The Court
must assess "whether there is the need for trial-whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party." !d. at 250. "If the evidence is merely colorable, ... or is
not significantly probative, ... the court may grant judgment." Anderson, 477 U.S. at 249-50
(citations omitted).

III.

Analysis
At the outset, the Court notes that pursuant to its April 8, 2013 Order, plaintiffs Title VII

and ADA claims are limited to events occurring after November 29,2010, and plaintiffs

4

retaliation claim is limited to events occurring after September 23, 2011. See Doc. 40.
Accordingly, only acts occurring after these dates are relevant to the Court's analysis. The
undersigned will first address plaintiffs disability discrimination claim.
A. Disability Discrimination
The ADA prohibits an employer from discriminating against a "qualified individual" on
the basis of a disability. 42 U.S.C. § 12112(a); McKay v. Toyota Motor Mfg., USA., Inc., 110
F.3d 369, 371 (6th Cir. 1997). A "qualified individual" with a disability is someone who
"satisfies the requisite skill, experience, education and other job-related requirements of the
employment position such individual holds or desires and who, with or without reasonable
accommodation, can perform the essential functions of such position." 29 C.F.R. § 1630.2(m).
The federal regulations define "essential functions" as the fundamental job duties of the
employment position. 29 C.F.R. § 1630.2(n)(l). Whether a particular function is essential is a
factual determination which must be made on a case-by-case basis. Hoskins v. Oakland Cty.

Sheriff's Dep't, 227 F.3d 719,726 (6th Cir. 2000) (citations omitted). An employer is permitted
to exercise its business judgment in establishing performance standards and in determining
whether an individual can meet its standards, "whether qualitative or quantitative." 29 C.F.R. Pt.
1630, Appendix to § 1630.2(n).
The ADA defines "discrimination" as including "not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a
disability." 42 U.S.C. § 12112(b)(5)(A). The Act defines "reasonable accommodation" to
include:
(A) making existing facilities used by employees readily accessible to and usable
by individuals with disabilities; and

5

(B) job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations
for individuals with disabilities.
42 U.S.C. § 12111(9).
To prevail on his failure to accommodate claim, plaintiff must demonstrate that: (1) he
has a disability; (2) he was qualified for the job; and (3) he was denied a reasonable
accommodation for his disability. Roush v. Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996).
Plaintiff bears the burden of showing that a reasonable accommodation is possible and that he is
qualified for the position with the accommodation. Hoskins, 227 F.3d at 728. Here, the parties
do not dispute that plaintiff is disabled within the meaning ofthe ADA. Nor do they dispute that
plaintiff is qualified for the position of CET2. However, the parties disagree as to whether
plaintiff was denied reasonable accommodations.
Plaintiffs ADA claim is based upon the City's purported failure to accommodate his
disability by: (1) not providing him a high back chair; (2) not permitting him to work a flexible
schedule; and (3) improperly requesting medical documentation to substantiate his requests. The
City asserts that plaintiffs ADA claim fails as a matter of law because there is no evidence
supporting his claim that he made requests for these accommodations. The City also contends
that an employer may request medical verification supporting requested accommodations
without violating the ADA.
The Court will first address plaintiffs claim that the City violated the ADA by refusing
to accommodate his reasonable request for a high back chair. The amended complaint alleges
that plaintiff requested a high back chair and was permitted to pick out a chair which the City
ordered, but that the chair was given to another employee upon delivery. (Doc. 11, ~~ 78-80).

6

Plaintiff further alleges that even after the employee left the City's employ, he was denied use of
the chair.

/d.,~

82. Plaintiffs amended complaint fails to set forth a time frame indicating when

plaintiff requested the chair or when the City allegedly ordered the chair he selected.
At his deposition, plaintiff testified that his initial request for a chair was made in 2000.
(Doc. 38 at 204 (Plaintiffs Deposition)). Despite the allegations in the amended complaint that
"his" chair was given to another person, plaintiff testified that the City never ordered him a chair,
but that he used another employee's chair to his satisfaction until his office moved in 2009 or
2010. !d. Following the move, plaintiffs chair went missing at which point he "found" a chair
that belonged to another City employee. /d. at 205-06. That employee, Mr. Bob Mertz,
permitted plaintiff to keep the chair and ordered another for himself. /d. at 206-07. The chair
ordered by Mertz was virtually identical to the chair kept by plaintiff. /d. at 208-09.
In the affidavit submitted by plaintiff subsequent to his deposition, plaintiff attests that he
told his supervisor, Tom Ludwig, about his need for the high back chair. However, plaintiff does
not state when he made this request. /d. Doc. 42 at 19. Plaintiff also generally states that he has
continuously requested a high back chair and was not provided with one until April2013. /d.
After this lawsuit was filed, plaintiff made his first written request for a special chair on
December 22, 2012. See Doc. 37, Ex. 2, ~ 6 (Affidavit of Dianne Nelson, Senior Administrative
Specialist, Human Resources Liaison for MSD's Engineering Division). His personnel file does
not contain any other requests for an accommodation in the form of a high back chair. /d.
Given the conclusory and non-specific nature of plaintiffs affidavit and amended
complaint, the undersigned is unable to discern when any of the events plaintiff describes
occurred. 4 Because plaintiffs ADA claims are limited to events occurring after November 29,

4

In his affidavit, plaintiff attests he "was told [the chair] was ordered for [him] and given to another
employee." (Doc. 42, ~ 7). However, this statement is inadmissible hearsay evidence. Hearsay is an out-of-court

7

201 0 (Doc. 40 at 4-8), in the absence of any evidence establishing that plaintiff made a request
for an accommodation for a high back chair after this date (with the exception of his one written
request in 2012 that was granted by the City), plaintiffs affidavit evidence fails to create a
genuine issue of fact for trial on this claim.
Moreover, plaintiffs amended complaint, affidavit, and deposition testimony are
inconsistent. Plaintiffs amended complaint and affidavit state that the City ordered a special
chair for him, but gave it to another employee, while he testified at his deposition that a special
chair was never ordered for him and he used other employees' chairs to his satisfaction.
Plaintiff cannot create a factual issue by filing an affidavit which contradicts his earlier
deposition testimony. See Lanier v. Bryant, 332 F.3d 999, 1004 (6th Cir. 2003) (citing United
States ex ret. Compton v. Midwest Specialties, Inc., 142 F.3d 296, 303 (6th Cir. 1998); Dotson v.
United States Postal Serv., 977 F.2d 976, 978 (6th Cir. 1992)). To the extent plaintiff relies on
the vague and conclusory allegations contained in either his affidavit or complaint, these are
insufficient to create a genuine issue of material fact on summary judgment. See McDonald v.
Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990) (conclusory allegations are not
sufficient to defeat a properly supported summary judgment motion).
Plaintiff has failed to submit evidence creating a genuine issue of fact that he made a
request for a reasonable accommodation in the form of a high back chair subsequent to
November 29, 2010 (other than the request made after this lawsuit was filed), or that the City

statement made by someone other than the declarant which is offered as evidence "to prove the truth of the matter
asserted in a statement." Fed. R. Evid. 80l(c). The statement in question involves statements made by some
unidentified third party to plaintiff. Plaintiff cites to the statements in order to proffer them as evidence as proof of
the matter asserted- that the City gave a chair ordered for plaintiff to someone else. Plaintiff may not use this
hearsay evidence to create a genuine issue of fact on summary judgment. Alpert v. US., 481 F.3d 404, 409 (6th Cir.
2007) ("Evidence submitted in opposition to a motion for summary judgment must be admissible. Hearsay evidence
... must be disregarded.") (internal citations omitted). Plaintiff has failed to assert that the proffered statement is
admissible under any exception to the hearsay bar. Therefore, the Court may not consider this evidence in deciding
the instant motion.

8

denied any such request. The City's motion for summary judgment is therefore granted on this
claim.
Next, plaintiff alleges that he requires a flexible work schedule to attend ongoing physical
therapy and medical appointments due to his disability. (Doc. 11, ~~ 38-39). Plaintiff claims the
City "refused to give him paid time off although he requested such time in order to attend to his
injury." Id.,

~

43. Plaintiff further asserts the "ADA allows for paid time off as a reasonable

accommodation for a disability." Id.,

~

44. Plaintiff concedes that the City entered into a MOU

permitting him to work a flexible work schedule at some point in 2006, but states that the City
later discontinued the MOU and impermissibly required plaintiff to provide medical
documentation of his disability in order to reinstate the MOU. Id.,

~~

53-71.

The City moves for summary judgment on plaintiffs "flex schedule" claims arguing that
the City entered into several agreements with plaintiff that allowed him to work a flexible
schedule to accommodate his therapy and medical appointments without losing pay or using sick
leave. The City also asserts that it was not aware that plaintiff was dissatisfied with his current
schedule until after this lawsuit was filed, which prompted the entry of the December 19, 2012
MOU. See Doc. 38, Ex. 32 (December 19, 2012 MOU). The City also asserts that the ADA
does not require employers to provide paid time off as an ADA accommodation and the ADA
permits employers to request medical documentation of an employee's need for time off. The
City's arguments are well-taken.
First, plaintiffs claim that the ADA requires employers to provide paid time off as a
reasonable accommodation, see Doc. 11, ~~ 44, is unsubstantiated. Plaintiff does not dispute the
City's arguments in his brief in opposition to its motion for summary judgment. Plaintiffs
failure to address this argument in his responsive brief constitutes waiver or abandonment of the

9

claim. See Posthumus v. Bd. ofEduc. of Mona Shores Public Schools, 380 F. Supp.2d 891,902
(W.D. Mich. 2005) (citing Ortiz v. Gaston Cty. Dyeing Mach. Co., 277 F.3d 594, 597 (1st Cir.
2002); Laborers' Int'l Union ofN Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999)).
Moreover, plaintiffs assertion is inconsistent with Sixth Circuit precedent which provides that
unpaid leave for a discrete period of time qualifies as a reasonable accommodation. See Walsh v.
United Parcel Serv., 201 F.3d 718,727-28 (6th Cir. 2000). The Court is not aware of any legal

authority, nor has plaintiff identified any, which supports his contrary allegation that he is
entitled to paid leave under the ADA. Accordingly, to the extent plaintiffs ADA claim is
premised upon the City's refusal to provide him paid leave, summary judgment is granted for the
City.
Second, insofar as plaintiff claims the City violated the ADA by requesting medical
documentation supporting his request for a "flex schedule," plaintiff is incorrect. 5 The ADA
prohibits employers from requiring employees to undergo a medical examination, asking
whether an employee is disabled, or asking about "the nature or severity of the disability .... "
42 U.S.C. § 12112(d)(4)(A). However, the ADA "permits employers ... to make inquiries or
require medical examinations necessary to the reasonable accommodation process .... " 29
C.F.R. § 1630.14(c). As noted by the Sixth Circuit, the ADA not only permits but encourages
such communication in order to ensure that proper accommodations are available to disabled
employees:
[E]mployer[s] need not take the employee's word for it that the employee has an
illness that may require special accommodation. Instead, the employer has the
ability to confirm or disprove the employee's statement. If this were not the case,
every employee could claim a disability warranting special accommodation yet
deny the employer the opportunity to confirm whether a need for the
accommodation exists. We believe the purpose of the ADA was not to create
5

The City does not dispute that it requested medical verification from plaintiff to support his request for a
flexible work schedule. See Doc. 37, Ex. 2, ~ 7 (Nelson Affidavit).

10

impediments for such employer-employee co-operation, but to promote an
interactive dialogue between an employer and employee to discover to what
extent the employee is disabled and how the employee may be accommodated, if
at all, in the workplace.
E.E.O.C. v. Prevo's Family Market, Inc., 135 F.3d 1089,1094-95 (6th Cir. 1998). Therefore, the

City's request for medical verification of plaintiffs need for a flexible work schedule to attend
medical appointments does not violate the ADA.
Lastly, the crux of plaintiffs ADA claim is that the City has refused to accommodate his
disability by refusing his request for a flexible work schedule so that he can attend physical
therapy and medical appointments without using sick leave or incurring lost wages. See Doc. 11,
~~

43-63. The City moves for summary judgment on this claim asserting that plaintiff cannot

make the necessary prima facie showing that the City refused to accommodate him or made an
adverse employment decision affecting plaintiff on the basis of his disability. (Doc. 37 at 9). In
support, the City presents evidence that plaintiff was repeatedly permitted to utilize a flexible
work schedule as demonstrated by various MOUs. See Doc. 38, Exs. 25, 32 (2011 and 2012
MOUs providing that plaintiff is permitted to work flexible schedules to attend medical
appointments); Doc. 42, Ex. 0 (2010 MOUs providing same); Doc. 37, Ex. 2, ~ 7 (Ms. Nelson
attested that the City entered into MOU s with plaintiff in 2011 ).
In his brief in opposition, plaintiff provides no evidence whatsoever controverting the
City's evidence that multiple MOUs existed in order to accommodate plaintiffs request for a
flexible work schedule. Indeed, plaintiffs affidavit includes statements that these MOUs existed
during the relevant time period. (Doc. 42 at 20-21 ). Rather than citing to evidence which creates
a genuine issue of material fact on this score, plaintiff simply reiterates his argument that the
City's request for medical verification in order to continue the MOUs violates the ADA. As
discussed above, employers are permitted to verify an employee's accommodation request.
11

Prevo's Family Market, 135 F.3d at1094-95. Plaintiff's reliance on the City's request for
medical verification in support of his ADA claim is therefore misplaced. As the record is devoid
of any evidence demonstrating that the City refused plaintiff's accommodation request and the
only uncontroverted evidence provided by the City demonstrates that it has continually worked
with plaintiff to provide him a flexible work schedule, the undersigned finds that plaintiff has
failed to establish a requisite element of his ADA claim and the City is entitled to summary
judgment.
B. Race Discrimination
Title VII provides that "[i]t shall be an unlawful employment practice for an employer to
... discharge any individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual's
race .... " 42 U.S.C. § 2000e-2(a). A plaintiff may establish a discrimination claim by either
direct or circumstantial evidence. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir.
2010). "Direct evidence of discrimination is 'that evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a motivating factor in the employer's
actions."' Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (en bane).
"Circumstantial evidence, on the other hand, is proof that does not on its face establish
discriminatory animus, but does allow a factfinder to draw a reasonable inference that
discrimination occurred." I d.
A plaintiff who lacks direct evidence of discrimination may establish a prima facie case
of discrimination through circumstantial evidence by showing that: 1) he is a member of a
protected class; 2) he suffered an adverse employment action; 3) he was qualified for the position
lost or not gained; and 4) he was replaced by an individual outside the protected class. Mitchell

12

v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992). Plaintiff may also establish the fourth
prong of a prima facie case of discrimination by showing that he was treated less favorably than
a similarly-situated individual outside the protected class. See Clayton v. Meijer, Inc., 281 F.3d
605, 610 (6th Cir. 2002).
If the plaintiff establishes a prima facie case, the employer can overcome the prima facie
case by articulating a legitimate, nondiscriminatory reason for the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. If the employer carries its burden, the plaintiff must show
that the reasons offered by the employer were not its true reasons but were a pretext for
discrimination. !d. at 804.
The City moves for summary judgment on plaintiffs race discrimination claim asserting
that plaintiff cannot establish a prima facie discrimination case as there is no evidence
demonstrating that he suffered an adverse employment action. (Doc. 37 at 14). At the outset,
the undersigned notes that plaintiffhas not responded to the City's motion as it concerns his race
discrimination claim. It is therefore appropriate to grant the City's summary judgment motion
on this basis alone, as it appears that plaintiff has waived or abandoned the claim. Posthumus,
380 F. Supp.2d at 902. However, as the record contains sufficient evidence to resolve this claim
on the merits, the Court will address the City's argument rather than decide the matter solely on a
procedural ground.
Plaintiffs amended complaint includes allegations that he was discriminated against on
the basis of his race because, inter alia, the City: ( 1) re-graded a promotional exam that plaintiff
initially passed but failed upon re-grading; (2) refused to pay him transfer pay for doing the work
of a CET3; and (3) discriminated against him by requesting that he partake in the software
"experiment." (Doc. 11, ~~ 112-126, 161-63). Plaintiffs own allegations and other evidence of

13

record demonstrate that the promotional testing and re-grading occurred in 2004. See Doc. 11, ~
117; Doc. 38, Ex. 20 (November 29, 2004letter from plaintiff to the City appealing theregrading). As this Court has previously determined that plaintiff's Title VII discrimination claim
is limited to events occurring after November 29, 2010, see Doc. 40, these allegations cannot
form the basis of a Title VII claim. Consequently, the only remaining issue is whether the City's
purported refusal to grant plaintiff transfer pay and the City's request for his participation in the
software "experiment" constitute adverse employment actions.
Regarding the transfer pay issue, the only evidence pertaining to events after November
29, 2010 is plaintiff's affidavit in which he attests he has not received CET3 (Civil Engineering
Tech 3) pay despite working at that level for years. (Doc. 42 at 22). Notably, plaintiff's affidavit
includes no statement whatsoever with regard to race discrimination. As plaintiff's vague,
unsupported, and self-serving affidavit is insufficient to prove his allegations of race
discrimination, summary judgment in favor of the City is appropriate. 6 Wolfe v. Village of Brice,
Ohio, 37 F. Supp.2d 1021, 1026 (S.D. Ohio 1999).

Plaintiff's claim that the City wrongfully discriminated against him on the basis of race
by requesting that he participate in the software "experiment" fairs no better. Plaintiff alleges
that "[o]nly blacks were asked to participate in the 'experiment."' (Doc. 11, ~ 162). However,
plaintiff testified at his deposition that a Caucasian employee was also asked to participate.
(Doc. 38 at 34 (Plaintiff's Deposition)). While plaintiff further testified that this Caucasian

6

The Court is further persuaded that this is the proper outcome given evidence proffered by the City which
demonstrates that plaintiff's request for transfer pay was not denied on the basis of his race but, rather, because the
City determined in 2009 that plaintiff was not performing the work of a CET3 and was not entitled to transfer pay.
See Doc. 38, Exs. 8, 9). The City has thus articulated a legitimate, nondiscriminatory reason for plaintiff not
receiving transfer pay and plaintiff has failed to present probative evidence sufficient to rebut the City's legitimate
nondiscriminatory reason. Accordingly, plaintiff has failed to present evidence that creates a genuine issue of fact as
to whether the reason offered by the City was its true reason for denying plaintiff's request for transfer pay thus
entitling the City to summary judgment. McDonnell Douglas, 411 U.S. at 804.

14

employee was included only after he refused to participate, this is a distinction without a
difference.
Plaintiff has presented no direct or circumstantial demonstrating that he was treated less
favorably than individuals outside of his protected class by virtue of being asked to participate in
the software "experiment." Rather, the uncontroverted evidence of record demonstrates that both
African American and Caucasian employees were asked to engage in the task. Insofar as
plaintiffs claim is based on his subjective belief that he was chosen to participate in the
"experiment" because of his race, such "subjective beliefs ... are wholly insufficient evidence to
establish a claim of discrimination as a matter oflaw." Mitchell, 964 F.2d at 585. See also
Carson v. Ford Motor Co., 413 F. App'x 820, 824 (6th Cir. 2011). As plaintiff has not

introduced evidence establishing the third prong of his racial discrimination claim regarding his
software "experiment" allegations, summary judgment is granted in favor of the City.
Moreover, plaintiff has provided no evidence demonstrating that his subsequent
performance review qualifies as an adverse employment action. Plaintiff testified that he
declined to participate in the "experiment" in June 2011 and the following September he
received a rating of "Does Not Meet Expectations" in the "Quality of Work" section of his
annual performance review. (Doc. 38 at 29, 43 (Plaintiffs Deposition)). See also Doc. 38, Ex.
4 (20 11 Annual Review). Plaintiff received a rating of "Meets Expectations" in all other areas of
the review, including an overall rating of"Meets Expectations." (Doc. 38, Ex. 4). There is no
evidence suggesting that plaintifflost pay or was disciplined as a result of the annual review. As
to his "Quality of Work," the lower rating is accompanied by the following narrative:
[Plaintiff] responsively works with his supervisor to meet pressing needs and
project schedules. Accuracy, completeness, and good form ofthe initial drawings
needs improving though. It would help to improve the quality of the drawings (1)
if the data was more accurately shown during the initial stages, (2) if the initial
15

drawings were more complete per the drawing standards, and (3) if they had a
more uniform, clean and neat appearance. He could improve by proofreading
better before submitting for review. Also could improve by keeping a neat and
well laid-out finished drawing on hand and modeling the current drawings after it.

Id.
The Sixth Circuit has held that "a negative performance evaluation does not constitute an
adverse employment action unless the evaluation has an adverse impact on an employee's wages
or salary." Tuttle v. Metro. Gov 't of Nashville, 474 F.3d 307, 322 (6th Cir. 2007). See also Holt
v. Morgan, 79 F. App'x 139, 141 (6th Cir. 2003) (unpublished); Primes v. Reno, 190 F.3d 765,

767 (6th Cir. 1999); Hollins v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999).
Accordingly, "to characterize a negative performance evaluation as an adverse employment
action the plaintiff must point to a tangible employment action that [he] alleges [he] suffered, or
is injeopardy of suffering, because ofthe downgraded evaluation." White v. Baxter Healthcare
Corp., 533 F.3d 381,402 (6th Cir. 2008) (internal quotations and citations omitted).

Plaintiff has introduced no evidence that he has suffered an adverse employment action
or a loss of salary as a result of the 2011 review. Further, as the overall review was satisfactory,
the lowered rating in one area does not constitute an adverse employment action. Hollins, 188
F.3d at 662. As plaintiff has not proffered evidence demonstrating that he suffered an adverse
employment action, he has not established a necessary element of his race discrimination claim.
The Court concludes that plaintiff has failed to create a genuine issue of material fact as
to whether he suffered an adverse employment action or was treated less favorably than similarly
situated individuals. Thus, he cannot establish a prima facie case of race discrimination.
Plaintiff has failed to rebut any of the City's evidence or arguments regarding his discrimination
claim. Accordingly, the City is entitled to summary judgment on plaintiffs claims of race
discrimination.
16

C. Retaliation
In order to establish a prima facie case of retaliation, a plaintiff must establish that: 1) he
engaged in activity protected by the discrimination statutes; 2) the exercise of his protected
activity was known to the defendant; 3) thereafter, the defendant took an employment action
adverse to the plaintiff; and 4) there was a causal connection between the protected activity and
the adverse employment action. See Harrison v. Metro. Gov 't ofNashville, 80 F .3d 1107, 1118
(6th Cir. 1996), overruled on other grounds as recognized by Jackson v. Quanex Corp., 191 F.3d
647, 667 (6th Cir. 1999). To establish the causal connection required by the fourth prong,
plaintiff must produce sufficient evidence from which an inference could be drawn that the
adverse action would not have been taken had the plaintiff not participated in protected activity.
See EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997); Jackson v. RKO Bottlers
ofToledo, Inc., 743 F.2d 370, 377 (6th Cir. 1984).
Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the
defendant to proffer a legitimate, non-retaliatory reason for the adverse employment action.
Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1082 (6th Cir. 1994). Ifthe
defendant meets its burden of production, the burden shifts back to the plaintiff to show that the
reasons proffered by the defendant are a pretext for retaliation. Id. However, the burden of
persuasion remains with the plaintiff at all times. St. Mary's Honor Center v. Hicks, 509 U.S.
502, 511 (1993).
The City argues plaintiff cannot establish a prima facie case of retaliation because he did
not engage in lawfully protected activity, did not suffer an adverse employment action, and
cannot establish a causal connection between the purported protected activity and adverse action.
In response, plaintiff argues that: ( 1) requesting an accommodation for his disability is

17

considered a protected activity under Title VII; (2) the City's "scrutiny" of plaintiff is an adverse
action as it would dissuade a reasonable person from engaging in the protected activity; and (3)
plaintiffs amended complaint "is replete with adverse actions taken by the [City] after [plaintiff!
requested reasonable accommodations for his disability.... " (Doc. 42 at 12-13).
Though the parties dispute whether plaintiff engaged in a protected activity, either by
requesting a reasonable accommodation or filing claims with his union for transfer pay, whether
or not plaintiff has established this prong of his prima facie case is irrelevant given that plaintiff
has failed to establish that he suffered an adverse employment action. Plaintiff argues that the
following actions by the City constitute adverse actions: (1) denying plaintiff the benefit of a
flexible schedule; (2) requesting a doctor's note; (3) not receiving a pay raise or transfer pay; and
(4) improperly scrutinizing him. 7 (Doc. 42 at 12-13). However, the undisputed evidence shows
plaintiff suffered no adverse employment action.
First, the City has entered into multiple agreements with plaintiff permitting him to work
on a flexible schedule. See Doc. 38, Exs. 23, 25, 32; Doc. 42, Ex. 0; Doc. 37, Ex. 2,

~

7. Given

that the uncontroverted evidence establishes the existence of an agreement between plaintiff and
the City for flexible work hours, the Court finds there is no adverse employment action in this
regard. Second, as discussed above, the City is permitted under the ADA to request medical
documentation supporting plaintiffs request for accommodation. Prevo's Family Market, 135
F.3d at1094-95. Accordingly, the City's request for a doctor's note is not an adverse
employment action for Title VII purposes. Third, the evidence of record demonstrates that
plaintiff has received numerous cost-of-living pay raises throughout his tenure with the City.
(Doc. 38, Ex. 30). Plaintiff testified that that he has received these raises but stated that these

7

To the extent plaintiff relies on the 2011 performance review rating as an adverse action, as discussed
above, a lowered rating on a performance review does not constitute an adverse action where the overall review was

18

"don't count." (Doc. 38 at 277-79 (Plaintiffs Deposition)). Regardless of plaintiffs opinion,
the undisputed evidence before the Court demonstrates he has received multiple raises
throughout his employment with the City. Consequently, plaintiff cannot establish an adverse
action in support of his retaliation claim based on a lack of pay raises. Further, plaintiff has
failed to provide evidence that he did not receive transfer pay in retaliation for engaging in
protected activity. Wolft, 37 F.Supp.2d at 1026. Lastly, plaintiffs conclusory and unsupported
argument that he has been scrutinized for engaging in protected activity is insufficient to
establish a genuine issue of material fact. See Mitchell, 964 F.2d at 585. As plaintiff does not
show he suffered an adverse employment action, he fails to establish a prima facie case of Title
VII retaliation.
The undersigned finds that plaintiff has failed to put forth evidence demonstrating that
there is a genuine issue of material fact as to his retaliation claim. Plaintiff has not supported his
allegations with admissible evidence and the record evidence flatly contradicts many of
plaintiffs assertions. Accordingly, the City is entitled to summary judgment on plaintiffs
retaliation claim.
IV.

Conclusion

In conclusion, the City's motion for summary judgment (Doc. 37) is GRANTED. This
action is DISMISSED on the docket of the Court.
IT IS SO ORDERED.

~£_~

Karen L. Litkovitz
United States Magistrate Judge

satisfactory. See Hollins, 188 F.3d at 662.

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