Revely v. Cincinnati State Technical and Community College

Filing 39

ORDER granting 35 Defendant's Motion for Summary Judgment. The complaint is dismissed with prejudice. Signed by Judge Sandra S Beckwith on 11/4/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Alicia Revely,
Plaintiff,
vs.
Cincinnati State Technical and
Community College,
Defendant.

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) Case No. 1:13-CV-353
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ORDER

This matter is before the Court on Defendant Cincinnati State Technical and
Community College’s motion for summary judgment (Doc. No. 35). Reviewing the record
in the light most favorable to the Plaintiff, and giving her the benefit of all reasonable
inferences, the Court concludes that Defendant is entitled to summary judgment.
Accordingly, for the reasons that follow, Defendant’s motion for summary judgment is welltaken and is GRANTED.
Plaintiff Alicia Revely, an African-American female, was a tenure-track marketing
and management instructor at Defendant Cincinnati State Technical and Community
College (“Cincinnati State”) until the college non-renewed her teaching contract after the
fifth year of the six-year tenure process. According to Cincinnati State, it decided not to
renew Plaintiff’s contract for the sixth year because it had decided not to grant her tenure
because of her deficient performance as a faculty member. Plaintiff’s alleged failings as
a faculty member principally involved out-of-class activities, such as not fulfilling her duties
as a student advisor, failing to attend staff meetings, and failure to adequately participate
in faculty and student activities.

Plaintiff contends that Cincinnati State decided to not to renew her teaching contract
because of her race and gender. The problem with Plaintiff’s Title VII employment
discrimination claims, however, is that she has not presented any direct evidence of
discrimination and she was replaced by another African-American woman, Lesli Rice. Doc.
No. 35-3, at 2. Thus, as Cincinnati State argues in its motion for summary judgment,
Plaintiff cannot establish a prima facie case of employment discrimination. See, e.g., Loyd
v. Saint Joseph Mercy Oakland, 766 F.3d 580, 589 (6th Cir. 2014) (female AfricanAmerican could not establish prima facie case of race or sex discrimination “because the
record shows that Loyd was replaced by an African–American woman”). Plaintiff argues
that a reasonable juror could find that Cincinnati State hired Rice in order to conceal its
animus toward her based on the length of time it took Cincinnati State to hire Rice.
Plaintiff, however, fails to cite any evidence which suggests that the length of time it took
to hire Rice was unusual or otherwise is indicative of intent to disguise illegal discrimination
against her.
Additionally, Plaintiff has not pointed to any evidence showing that similarly-situated
white or male tenure-track instructors were treated more favorably than she was with
respect to the renewal of a teaching contract, or more accurately, whose teaching contracts
were renewed despite having the same or similar performance deficiencies. Consequently,
Plaintiff cannot establish a prima facie case of race or gender discrimination. Talley v.
Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995)(plaintiff can demonstrate
fourth prong of prima facie case of discrimination by showing that she was replaced by a
person outside of the protected class or by showing that similarly-situated non-protected
employees were treated more favorably).
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To make up for her inability to demonstrate the last prong of a prima facie case of
discrimination according to the traditional mode, Plaintiff tries to rely on statistical data
which she claims shows a disproportionate race and gender population at Cincinnati State
among tenured and tenure-track instructors. Plaintiff’s statistical evidence fails to show any
gender or racial disparity indicative of discrimination. In fact, as far as alleged gender
discrimination goes, the record shows more tenured female instructors (15) than tenured
male instructors (11). Doc. No. 28-2, at 2-3. The statistical evidence, moreover, does not
support a case of racial discrimination with respect to tenure decisions. The pool indicates
ten African-American instructors. Of this subset, four instructors received tenure, one
instructor’s tenure application was under review, one instructor resigned, one instructor
retired, and one instructor moved from teaching to administration. Id. Plaintiff and one
other African-American instructor had their contracts non-renewed. Id. The only other
instructor not to have her contract renewed was a white female. No reasonable juror could
infer discriminatory animus against women or African-Americans from this data, particularly
inasmuch as tenured female instructors outnumber tenured male instructors. While it is
true that two African-American instructors were non-renewed versus one Caucasian
instructor, the sample size is too small to infer that racial animus accounts for the
discrepancy. Moreover, Plaintiff has not provided evidence that the racial disparity is
statistically significant. Simpson v. Midland-Ross Corp., 823 F.2d 937, 943-44 (6th Cir.
1987); id. at 944 (“For statistics to be valid and helpful in a discrimination case, both the
methodology and the explanatory power of the statistical analysis must be sufficient to
permit an inference of discrimination.”)(internal quotation marks omitted); Hilbert v. Ohio
Dept. of Rehab. & Corr., 121 Fed. Appx. 104, 110 (6th Cir. 2005) (statistical data must not
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only show a significant disparity between two groups, but must also eliminate the most
common nondiscriminatory explanations for the disparity”)(internal quotation marks
omitted).
Plaintiff claims further, however, that Cincinnati State non-renewed her because she
is a lesbian and did not conform to a stereotypical female gender role. Plaintiff’s problem
with this line of attack, however, is that other than her self-described “non-gendernormative” style of dress, she has not identified any evidence that indicates that Cincinnati
State was motivated not to renew her contract because of her failure to conform to its
perception of a stereotypical female gender role. Plaintiff, for instance, has not pointed to
any evidence that anyone at Cincinnati State ever commented unfavorably about her style
of dress or believed that her appearance and demeanor were too masculine or insufficiently
feminine. Compare to Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989) (female
accounting executive was described by partners as “too macho” and was encouraged to
“walk more femininely, talk more femininely, dress more femininely, wear make-up, have
her hair styled, and wear jewelry”); Smith v. City of Salem, 378 F.3d 566, 571 (6th Cir.
2004) (co-workers of plaintiff, who was a male-to-female transsexual firefighter, commented
that his appearance and mannerisms were not masculine enough and supervisors
conspired to compel his resignation “by forcing him to undergo multiple psychological
evaluations of his gender non-conforming behavior”); Barnes v. City of Cincinnati, 401 F.3d
729, 738 (6th Cir. 2005)(police officer, a male-to-female transsexual, was criticized for not
being sufficiently masculine and for lacking “command presence”).

Indeed, in her

deposition, Plaintiff admitted that no one ever made inappropriate comments about her
appearance. Plaint. Dep. (Doc. No. 26), at 105-06, 122-23. This case is essentially on all4

fours with Dawson v. Bumble & Bumble, 398 F.3d 211, 221-23 (2nd Cir. 2005), where a
lesbian’s mannish appearance and style of dress were insufficient to establish a sex
stereotyping claim because the plaintiff failed to show that her employer treated her
discriminatorily because of her appearance. Finally, Plaintiff has not pointed to evidence
that Rice, her replacement, conforms to a female gender stereotype. Myers v. Cuyahoga
County, Fed. Appx. 510, 519 (6th Cir. 2006) (plaintiff could not establish prima facie sex
stereotyping claim where she failed adduce evidence that her replacement was genderconforming). This failing also defeats Plaintiff’s sex stereotyping claim.
As Cincinnati State also accurately argues, in reality, Plaintiff is claiming that she
was terminated because of her sexual orientation, a personal characteristic that Title VII
does not protect against employment discrimination. Vickers v. Fairfield Med. Ctr., 453
F.3d 757, 762 (6th Cir. 2006); Gilbert v. Country Music Ass’n, Inc., 432 Fed. Appx. 516, 519
(6th Cir. 2011). The fact that other administrative and faculty members were aware of her
sexual orientation cannot be transformed into a basis for finding that Cincinnati State
decided not to renew her teaching contract because she failed to conform to a female
gender stereotype. See Vickers, 453 F.3d at 764 (noting that “all homosexuals, by
definition, fail to conform to traditional gender norms in their sexual practices”).

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Conclusion
Accordingly, for all of the above reasons, Cincinnati State is entitled to summary
judgment on Plaintiff’s race and gender discrimination claims. Cincinnati State’s motion for
summary judgment is well-taken and is GRANTED. The complaint is DISMISSED WITH
PREJUDICE.

IT IS SO ORDERED
s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

Date November 4, 2014

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