Waldon et al v. Cincinnati Public Schools
Filing
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ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 43 ) AND DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT (Doc. 44 ). Signed by Judge Timothy S. Black on 2/3/2015. (mr1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GREGORY WALDON, et al.,
Plaintiffs,
vs.
CINCINNATI PUBLIC SCHOOLS,
Defendant.
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Case No. 1:12-cv-677
Judge Timothy S. Black
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (Doc. 43) AND DENYING PLAINTIFFS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT (Doc. 44)
This civil action is before the Court on the parties’ cross-motions: 1) Defendant’s
Motion for Summary Judgment (Doc. 43), Plaintiffs’ Response in Opposition (Doc. 51),
and Defendant’s Reply (Doc. 59); and 2) Plaintiffs’ Motion for Partial Summary
Judgment (Doc. 44), Defendant’s Response (Doc. 52), and Plaintiffs’ Reply (Doc. 58).
I. BACKGROUND FACTS
Plaintiffs were both long-term and valued employees of Defendant Cincinnati
Public Schools (“CPS”). In 2007, the Ohio Legislature passed a law requiring school
districts across the state to conduct criminal background checks. The new law required
employees convicted of any of a number of specified crimes to be terminated, regardless
of how remote in time or how little they related to the employees’ qualifications. In late
2008, Plaintiffs lost their employment pursuant to the law, based on criminal matters that
were decades old. Defendant terminated a total of ten of its employees, nine of whom
were African-American.
Plaintiffs bring claims for racial discrimination in violation of federal and state
law, contending their terminations were based on a state law that had a racially
discriminatory impact.
Defendant has moved for summary judgment, contending
Plaintiffs have failed to show statistical proof of statewide impact of the criminal
background check requirement and therefore have not shown the requirement resulted in
a disparate impact (Doc. 43). Plaintiffs have also moved for summary judgment,
contending nine of the ten employees discharged by CPS were African-American, and
CPS has offered no business necessity justifying the use of the policy (Doc. 44). This
matter is ripe for the Court’s consideration.
II. UNDISPUTED FACTS 1
1. For many years, Ohio has required criminal background checks for licensed
school-district employees.
2. In 2007, the Ohio Legislature enacted House Bill 190.
3. In September 2008, the Ohio Legislature enacted House Bill 428.
4. Among other things, this legislation amended Revised Code § 3319.39 and created
Revised Code § 3319.391.
5. Ohio Revised Code § 3319.391 required that all public school districts, including
Cincinnati Public Schools (“CPS”), obtain criminal background checks from all
current school district employees—licensed and non-licensed—by September 5,
2008.
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See Doc. 45.
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6. Employees who had previously been convicted of a number of enumerated
offenses were to be terminated under the policy.
7. Plaintiffs Gregory Waldon and Eartha Britton were employed by CPS when this
legislation was enacted.
8. In 1977, while an employee of CPS, Mr. Waldon was convicted of felonious
assault in violation of Ohio Revised Code § 2903.11. CPS was aware of his
conviction. In fact, the CPS civil service office corresponded with the Ohio Parole
Board that CPS “would be happy to offer Mr. Waldon employment in the near
future.” Following Mr. Waldon’s subsequent release in 1980, CPS rehired Mr.
Waldon and continued to employ him until the enactment of Ohio Revised Code
§ 3319.391.
9. CPS planned to terminate Mr. Waldon under Ohio Revised Code §§ 3319.39 and
3319.391, and CPS officials informed Mr. Waldon of its intention to terminate his
employment with CPS at a hearing held in November or early December 2008.
10. Mr. Waldon chose instead to retire for economic reasons.
11. In 1983, Ms. Britton was convicted of drug trafficking in violation of Ohio
Revised Code § 2925.03. The violation was related to a $5.00 transaction
involving marijuana. CPS was aware of this conviction when it hired Ms. Britton
in 1980.
12. Ms. Britton’s employment was terminated by CPS.
13. CPS applied Ohio Revised Code §§ 3319.39 and 3319.391 to Ms. Britton as
written.
III.
STANDARD OF REVIEW
A motion for summary judgment should be granted if the evidence submitted to
the Court demonstrates that there is no genuine issue as to any material fact, and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 247-48 (1986). The moving party has the burden of showing the absence of genuine
disputes over facts which, under the substantive law governing the issue, might affect the
outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be
construed in a light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for summary judgment “may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (1986).
IV. ANALYSIS
A. Disparate Impact Discrimination
The Supreme Court addressed the problem of disparate impact discrimination in
its landmark decision, Griggs v. Duke Power Co., 401 U.S. 424 (1971). In Griggs, the
Court explained that Title VII of the Civil Rights Act “proscribes not only overt
discrimination but also practices that are fair in form, but discriminatory in operation.”
401 U.S. at 431. At issue in Griggs were requirements that employees have high school
diplomas and pass intelligence tests as a condition of employment in or transfer to certain
jobs. Although the practice appeared neutral on its face, its effect was to freeze the status
quo such that African-American employees were disqualified at a higher rate while the
requirements had no real relationship to successful job performance.
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The Court struck
down such practice, holding that any tests used must “measure the person for the job and
not the person in the abstract.” Id. at 436.
Disparate impact cases, therefore “involve employment practices that are facially
neutral in their treatment of different groups but that in fact fall more harshly on one
group than another and cannot be justified by business necessity.” Lyon v. Ohio Educ.
Ass’n, 53 F.3d 135, 138 (6th Cir. 1995)(quoting International Bhd. of Teamsters v.
United States, 431 U.S. 324, 335 n.15 (1977)). A prima facie disparate impact case is
established when: 1) plaintiff identifies a specific employment practice to be challenged;
and 2) through relevant statistical analysis shows that the challenged practice has an
adverse impact on a protected group. Grant v. Metro Gov’t of Nashville & Davidson
Cty., 446 App’x 737, 740 (6th Cir. 2011). If the plaintiff meets this burden,
the employer must show that the protocol in question has “a manifest relationship
to the employment”—the so-called “business justification.” Griggs, 401 U.S. 424,
432. If the employer succeeds, the plaintiff must then show that other tests or
selection protocols would serve the employer’s interest without creating the
undesirable discriminatory effect.
Isabel v. City of Memphis, 404 F.3d 404 at 411 (6th Cir. 2005). “An employer cannot be
held liable for disparate impact if a legitimate business policy results in workforce
disparities.” Bacon v. Honda of America Mfg., Inc., 370 F.3d 565, 579 (6th Cir. 2004).
B. The Parties’ Arguments
1. Neutral State Mandates Do Not Escape Title VII
Defendant revisits the argument, which the Court rejected in its previous Order
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on Defendant’s motion to dismiss, that the challenged employment law must “purport” to
discriminate in order to be preempted by Title VII. (Doc. 43, citing 42 U.S.C. § 2000e-7).
Plaintiffs protest that the Court’s prior holding is law of the case, and further argue that
where a state law “purports” to authorize some employment practice that violates Title
VII due to either disparate treatment or disparate impact, the state law is trumped by Title
VII (Doc. 51). Plaintiffs further argue that Title VII’s provisions also authorize federal
courts to invalidate any state or local law that “is inconsistent with any of the purposes”
of Title VII. (Id. citing 42 U.S.C. § 2000h-4).
The Court finds Plaintiffs’ position well taken that Defendant’s view is
inconsistent with the purpose of Title VII, and would eviscerate the well-established
principles supporting the theory of disparate impact. Grafting a requirement onto the
prima facie disparate impact case that a law must purport to discriminate would result in
laws withstanding challenge that are facially neutral but discriminatory in impact. Such
result would be contrary to Griggs and Title VII. See Guardians Ass’n of N.Y.C. Police
Dep’t. Inc. v. Civil Serv. Comm’n of the City of New York, 630 F.2d 79, 104-05 (2d Cir.
1980)(Defendant cannot justify disparate impact job testing by contending it was
complying with state law).
2. The Prima Facie Case of Disparate Discrimination
Plaintiffs have identified the specific practice challenged—the termination of
employees with certain criminal convictions—and thus have met the first prong of their
prima facie case for disparate impact discrimination. Grant, 446 App’x 737, 740. For
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the second prong, Plaintiffs have proffered statistical analysis showing that while
African-Americans comprise slightly more than 50% of Defendant’s non-licensed
employees, they comprised 100% of Defendant’s non-licensed employees who lost their
jobs due to the criminal background check policy (Doc. 44).
Defendant argues that Plaintiffs are focusing on the wrong group. In Defendant’s
view, Plaintiffs are wrong to focus solely on the subset of employees terminated by
Defendant, but should instead proffer relevant statistical evidence of the effects of the
policy state-wide, as Ohio Revised Code §§ 3319.39 and 3319.391 applied state-wide and
not merely to CPS employees (Docs. 43, 52).
Plaintiffs contend, citing Betsey v. Turtle Creek Assocs., 736 F.2d 983 (4th Cir.
1984) and Graoch Assoc #33, L.P. v. Louisville/Jefferson Cnty., 508 F.3d 366, 378 (6th
Cir 2007) (applying Betsey), that “[t]he correct inquiry is whether the policy in question
had a disproportionate impact on the minorities in the total group to which the policy was
applied.” Betsey, 736 F.2d at 987. According to Plaintiffs, “the total group at issue here
is CPS’s employee population” (Doc. 44). Defendant cites the same authority,
contending the “total group” includes all public school employees in the state. (Doc. 59).
The parties further disagree as to the import of Regner v. City of Chicago, 789
F.2d 534 (7th Cir. 1986). In Regner, the Plaintiff was employed by a public library
system and she challenged promotion practices at the main library which she alleged had
a disparate impact on minorities. Defendant countered that Plaintiff should not look at
the statistics for one library only, but rather the entire library system, which showed
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minorities received a fair percentage of promotions. Id. The district court took
Defendant’s view, but the Seventh Circuit reversed, reasoning that the promotions
awarded to minorities were clustered in branches, while the main library primarily
promoted whites. Id. at 538. The policy at issue, therefore, was that at the main library,
and not that which was functionally different system-wide. The appellate court therefore
found insufficient the basis offered by the district court in granting summary judgment to
the library system.
Here, the Court finds well-taken Defendant’s position that the policy at issue was
one that came from a state mandate, and, therefore, the onus is on Plaintiffs to show that
the total group impacted statewide was disproportionally comprised of minorities.
Plaintiffs’ case is not one like Regner, in that there is no evidence that the criminal
background check policy was handled any differently in Cincinnati than it was statewide. Therefore, unlike Regner, it is appropriate to view the “total group” in order to
examine whether the policy had a disproportionate impact. Plaintiffs, despite having
done some discovery on the issue, have not proffered evidence showing state-wide
disparate impact of the background check policy. Accordingly, Plaintiffs have failed to
establish a prima facie case, and their claim fails as a matter of law.
As the Court has concluded Plaintiffs have failed to establish a prima facie case, it
need not reach the balance of the parties’ arguments regarding whether Defendants’
policy was justified by a legitimate business interest. Finally, because Plaintiffs’ federal
claims fail, so does their state law claim under Ohio Revised Code § 4112. Plumbers and
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Steamfitters Jt. Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192
(1981).
V.
CONCLUSION
Accordingly, for the foregoing reasons, Defendant’s Motion for Summary
Judgment (Doc. 43) is GRANTED, and Plaintiffs’ Motion for Partial Summary
Judgment (Doc. 44) is DENIED.
The Clerk shall enter judgment accordingly, whereupon this case is CLOSED
in this Court.
IT IS SO ORDERED.
Date: 2/3/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge
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