Allgeyer v. Cincinnati City of et al
Filing
30
REPORT AND RECOMMENDATIONS re 23 Defendants' Motion for Summary Judgment. IT IS RECOMMENDED THAT Defendants' motion for summary judgment 23 be GRANTED as to all remaining claims, and that this case be closed. Objections to R&R due by 4/15/2019. Signed by Magistrate Judge Stephanie K. Bowman on 4/1/2019. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARY JILL ALLGEYER
Case No. 1:16-cv-1128
Plaintiff,
Barrett, J.
Bowman, M.J.
v.
CITY OF CINCINNATI, et al.,
Defendants.
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se and in forma pauperis, filed a complaint against the
City of Cincinnati and two individuals, Harry Black and Georgette Kelly. Pursuant to local
practice, this case has been referred to the undersigned magistrate judge. See generally
28 U.S.C. § 636(b). Following the close of discovery in this case, the Defendant City
moved for summary judgment. For the reasons that follow, the undersigned recommends
that the Defendant’s motion be GRANTED, and that this case be closed.
I.
Procedural Background
In a complaint filed on December 6, 2016, Plaintiff alleged that during her long
employment with the City, she was subjected both to reverse race discrimination in
violation of Title VII of the Civil Rights Act of 1964, and to age discrimination. The
complaint further alleged that she faced termination, was denied promotion, and
experienced unequal terms and conditions of her employment. She alleged a course of
continuing discrimination.
Defendants responded to Plaintiffs’ complaint with a motion seeking judgment on
the pleadings. In a Report and Recommendation adopted over Plaintiff’s objections as
the opinion of the Court, the Court granted in part and denied in part the Defendants’
motion, which the Court construed as a preliminary motion for summary judgment.1 In
granting the Defendants’ construed motion, the Court dismissed all claims as time-barred
except for certain “failure to promote” claims alleging “race and/or age discrimination for
the … applications for promotion that Plaintiff submitted after November 27, 2015.” (Doc.
14 at 13; id. at 16).2 The Court also dismissed all claims against the two individual
Defendants. (Id. at 15-16). The Court subsequently amended its calendar order and
directed the parties to complete discovery by November 30, 2018, with any additional
dispositive motions to be filed on January 4, 2019. (Doc. 20).
The sole remaining Defendant, the City of Cincinnati, timely moved for summary
judgment on Plaintiff’s remaining failure to promote claims. (Doc. 23). Plaintiff filed a
response in opposition, (Doc. 27), to which Defendant filed a reply. (Doc. 28). Without
seeking leave of Court, Plaintiff filed a second memorandum in opposition to Defendant’s
motion for summary judgment.3 (Doc. 29). To the extent that any reviewing court would
find the construed sur-reply worthy of consideration, it does not alter the conclusion that
the City is entitled to judgment as a matter of law.
1
No discovery had been conducted in the case at the time, but the motion was construed under Rule 56
because both parties had attached documents outside the scope of the pleadings.
2 Although the first motion for judgment identified a total of five applications, (see Doc. 12-1 at 46-50),
Defendant’s current motion addresses additional applications identified during discovery in this case.
3 The undersigned recommends excluding consideration of Plaintiff’s second memorandum in opposition
to Defendant’s motion as untimely and procedurally improper. In addition, some of the 34 pages of exhibits
attached to the memorandum are duplicates of those submitted with Plaintiff’s first response. Consistent
with the earlier response, many exhibits pre-date the claims at issue.
2
II.
Standard of Review
In a motion for summary judgment, a court must view “the facts and any inferences
that can be drawn from those facts…in the light most favorable to the nonmoving
party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.
2007) (internal quotation marks and citation omitted). “Summary judgment is only
appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.’”
Id. (quoting Fed.R.Civ.P. 56(c)). “Weighing of the evidence or making credibility
determinations are prohibited at summary judgment - rather, all facts must be viewed in
the light most favorable to the non-moving party.” Id.
The requirement that facts be construed in the light most favorable to the Plaintiff,
however, does not mean that the court must find a factual dispute where record evidence
contradicts Plaintiff's unsupported allegations. If a moving party has carried its initial
burden of showing that no genuine issues of material fact remain in dispute, the burden
shifts to the non-moving party to present specific facts demonstrating a genuine issue for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
“The ‘mere possibility’ of a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964
F.2d 577, 582 (6th Cir. 1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th
Cir. 1986)). In order to defeat the motion for summary judgment, the non-moving party
must present probative evidence that supports its complaint. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986). Although reasonable inferences must be drawn in
favor of the opposing party, see Matsushita, 475 U.S. at 587, inferences are not to be
3
drawn out of thin air. To demonstrate a genuine issue, the opposing party “must do more
than simply show that there is some metaphysical doubt as to the material facts.... Where
the record taken as a whole could not lead a rational trier of fact to find for the non-moving
party, there is no ‘genuine issue for trial.’” Id., 475 U.S. at 586-587 (citation omitted).
To the extent that the Defendant has shown that Plaintiff lacks evidence on an
essential element of any of her claims, the burden shifts to Plaintiff to set forth “specific
facts showing that there is a genuine issue for trial.” Id., at 587. At this point, Plaintiff may
not rely solely on her subjective beliefs or opinions. Arendale v. City of Memphis, 519
F.3d 587, 601 (6th Cir. 2008). She may not show only that some hypothetical doubt exists
as to the facts. See Matsushita, 475 U.S. at 586. “The mere existence of a scintilla of
evidence in support of the plaintiff's position will be insufficient; there must be evidence
on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57 F.3d
476, 479 (6th Cir. 1995). Based on the relevant standards, the Defendant is entitled to
judgment as a matter of law on all claims.
III.
Undisputed Facts
Plaintiff is a Caucasian female born in 1951 who first worked for the City from 1990
until 1993. While the reasons for her 1993 departure are disputed, that dispute is not
material to the issues presented in this case. (See, e.g., Doc. 25-1, Plaintiff’s Deposition
Ex. A, at 21). The parties agree that Plaintiff was later re-hired by the City and worked
from October 1, 2000 until her retirement on August 1, 2018. (Doc. 25, Depo. at 24, 39).
When she was rehired, Plaintiff began working in the City Manager’s Office as a
Clerk Typist I.
She was subsequently promoted to Clerk Typist II. In 2002, Plaintiff
transferred to work as a Clerk Typist II in the Police Chief’s Office. In 2004, she took a
4
civil service exam for promotion to a Clerk Typist III position, and was selected for that
position in the Department of Transportation and Engineering (“DOTE”). In 2007, Plaintiff
was promoted to the position of Administrative Technician (“Admin Tech”) after taking a
civil service exam and qualifying for an eligibility list. She continued to work as an Admin
Tech in DOTE until her retirement.
The Admin Tech position falls within an administrative class series of positions.
Most employees are promoted sequentially within the hierarchy of the administrative class
series, from Admin Tech to Admin Specialist, to Senior Admin Specialist, to Supervising
Management Analyst, with the top rung of the series being Division Manager. (Doc. 25 at
57). Between November 27, 2015 and her retirement, Plaintiff applied for at least 14, and
possibly as many as 24, promotional opportunities. (Doc. 25 at 45 and Doc. 25-2, Ex. B,
identifying 14 positions for which Plaintiff applied during the relevant time frame; see also
Doc. 25-3, Ex. C, identifying HR responses to 24 applications received after November
27, 2015).
Some of the positions for which Plaintiff applied were Admin Specialist positions,
which was one position higher in the administrative class series. However, other positions
sought by Plaintiff were several steps above her Admin Tech position.
Five or six
applications were rejected or failed based upon Plaintiff’s failure to meet minimum
qualifications/eligible classification. (Doc. 25-2, see also Doc. 25 at 167-68, testifying
about rejection listed on Doc. 25-3 for failure to meet time and grade and required
classification requirements).
Some (but not all) of the Admin Specialist positions for which Plaintiff applied were
positions that were filled from an eligibility list. The list was based upon an Admin
5
Specialist test for which Plaintiff initially submitted her application on September 10, 2015,
prior to the limitations cut-off date established in this case. However, the administration
of the test was delayed until April 1, 2016, a time frame within the limitations period. (Doc.
25 at 55, 58). Plaintiff took the test, which included an oral interview. On June 16, 2016,
Plaintiff learned that she had placed only 46th out of 63 applicants who completed the
test. Plaintiff remained on the list until it expired in July 2017, but was never certified or
selected for an Admin Specialist position.
In addition to the applications that she submitted, Plaintiff asserts she “should have
been able to compete” for additional jobs in other departments that were filled by the Civil
Service Commission using promotion without exam, working out of class, and
appointments to classified service. (Doc. 25 at 184 and Doc. 25-4, Ex. D). However,
Plaintiff expressed interest in only one of those positions, a Senior Administrative
Specialist (P) position awarded to Lorryn Bruns in July 2016. (Doc. 25 at 184 and Doc.
25-5, Ex. E).
IV.
Analysis
A. Applicable Legal Standards
Title VII prohibits discrimination in employment “because of such individual’s race.”
42 U.S.C. § 2000e-2(a)(1), while the Age Discrimination in Employment Act (“ADEA”)
prohibits discrimination “because of such individual’s age.” 29 U.S.C. § 623(a). At the
outset, the undersigned notes that Plaintiff does not claim, and expressly denied in
deposition testimony, that anyone in authority directly proclaimed or expressed racebased or age-based bias against her during her employment. (Doc. 3; see also Doc. 25
at 228). “Direct evidence of discrimination is evidence of conduct or statements by
6
persons involved in making the employment decision directly manifesting a discriminatory
attitude, of a sufficient quantum and gravity that would allow the factfinder to conclude
that attitude more likely than not was the but-for cause of the employment decision.” Scott
v. Potter, 182 Fed. Appx. 521, 525-26 (6th Cir. 2006) (internal quotation marks and
citations omitted). “[O]nly the most blatant remarks, whose intent could be nothing other
than to discriminate … satisfy this criteria.” Id. at 536. Moreover, isolated or ambiguous
remarks generally are not sufficient to prove a “direct evidence” claim. Peters v. Lincoln
Elec. Co., 285 F.3d 456, 478 (6th Cir. 2002).
Since Plaintiff relies exclusively upon circumstantial evidence rather than on direct
evidence, her case is governed by the familiar McDonnell Douglas burden-shifting
framework that applies to most employment discrimination claims.
See McDonnell
Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817 (1973). As the plaintiff, Ms. Allgeyer
has the burden of establishing a prima facie case of employment discrimination.
To establish a prima facie case of reverse-race discrimination under…
federal law, a plaintiff must prove the following elements:
1. Background circumstances to support the suspicion that the defendant
is that unusual employer who discriminates against the majority;
2. [She] was qualified for his job;
3. [She] suffered an adverse employment decision; and
4. [She] was treated differently than similarly situated employees of a
different race.
Fletcher v. U.S. Renal Care, Inc., 240 F.Supp.3d 740, 748 (S.D. Ohio, 2017) (citing
Nelson v. Ball Corp., 656 Fed. Appx. 131, 134-135 (6th Cir. 2016) (internal quotations
and citations omitted)).
The Sixth Circuit has held that the same burden-shifting
7
framework applies to Plaintiff’s claim of age-based discrimination. See Geiger v. Tower
Auto, 579 F.3d 614, 620 (6th Cir. 2009).
Only if Plaintiff establishes her prima facie case does the burden shift to the City
to articulate a legitimate, non-discriminatory reason for the employment action taken. If
the Defendant succeeds in articulating a legitimate non-discriminatory reason for the
failure to promote Plaintiff, then the burden shifts once more to Plaintiff to show that the
City’s proffered reasons for its failure to promote her were pretextual. See, e.g., Jackson
v. United Dairy Farmers, 554 F. Supp.2d 813, 815 (S.D. Ohio 2008) (explaining burdenshifting standard, internal citations omitted).
Defendant does not dispute that Plaintiff is within a protected age classification,
and is Caucasian. Defendant also does not dispute that Plaintiff suffered an adverse
employment action when she was not promoted to various positions to which she applied,
and one additional position (filled by Lorryn Bruns) in which she had expressed interest
but was precluded from applying. (Doc. 23 at 8). However, the City persuasively argues
that it is entitled to judgment as a matter of law based upon Plaintiff’s failure to prove other
elements of her prima facie case. Specifically, Plaintiff has failed to come forward with
evidence that any other “similarly situated” employees (outside of Plaintiff’s protected
class) received promotions for which Plaintiff herself was qualified, and for which Plaintiff
had submitted applications or expressed interest.
B. Plaintiff’s Opposition to Summary Judgment
Plaintiff filed a 98-page response to the City’s motion, consisting of a 9-page
memorandum, and 89 pages of exhibits. In her memorandum, Plaintiff concedes that
8
she has no evidence that any similarly situated individuals outside of Plaintiff’s
protected class received more favorable treatment.
[Counsel for Defendant] states that I (Plaintiff) “have no genuine issues of
material fact. When confronted with a record of her applications and asked
to review her own documentary evidence, Plaintiff was unable to provide
basic information about the positions for which she had applied including
the departments, job responsibilities, and minimum qualifications for the
position. More importantly, Plaintiff was unable to identify the similarly
situated individuals outside of her protected class who received more
favorable treatment.” [Counsel] would be correct on all counts.
(Doc. 27 at 2, emphasis added). Plaintiff complains that she was unable to “decipher
who received promotions from my applications” because “I do not have a photographic
memory and I could not respond to his questions at the deposition in November.” (Id.)
Plaintiff’s response demonstrates a fundamental misunderstanding of the burden
of proof required to prove her claims or to defeat summary judgment. As stated, under
McDonnell Douglas, Plaintiff has the burden to make a prima facie showing on the
essential elements of her claim. Plaintiff’s concession that she cannot do so provides
grounds for granting Defendant’s motion. A closer review of Plaintiff’s arguments and of
the record in this case only adds to the conclusion that the Defendant is entitled to
judgment as a matter of law.
The 89 pages of exhibits appended to Plaintiff’s response are largely
unauthenticated, poorly organized, and only briefly referenced (if at all) in her
memorandum in opposition. This Court is not required to search the entire record to look
for specific material facts that could support Plaintiff’s claim.
Guarino v. Brookfield
Twnshp. Trs., 980 F.2d 399, 404 (6th Cir. 1992). Instead, it is Plaintiff’s burden to “present
affirmative evidence to defeat a properly supported motion for summary judgment.”
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). While not required to
9
do so in light of Plaintiff’s failure to provide specific references, the undersigned has
endeavored to review all exhibits in order to confirm the absence of any genuine issue of
material fact that would preclude judgment from being granted to the Defendant City in
this case.
Many of the exhibits contain improper annotations and/or argument. (See Doc. 27
at 8, “I have marked most of my exhibits with yellow [highlighter] and included
statements.”). Roughly half of the exhibits are comprised of copies of what appear to be
undated civil service rules or policies,4 or documents that predate the claims at issue.5
Plaintiff argues that all of her exhibits reflect decades-long discrimination against her.
However, this Court has dismissed all claims and defendants other than claims
concerning applications for promotion submitted after November 27, 2015.
In the
absence of any showing of relevance to the limited claims at issue, the undersigned
declines to consider exhibits that appear relevant only to previously dismissed claims.
After discovery closed, Plaintiff states that she contacted “Central H.R.” and
obtained additional records through a public information request. Although Plaintiff offers
no citation to any record, she asserts that records show a total of 46 employees were
placed in the position of Admin Specialist between the years of 2015 and 2018.6
See, e.g., Doc. 25 at 229, describing exhibit described as an “Institutional Racism Ordinance” enacted by
the City, which Plaintiff testified was “just for minorities” and said “nothing anywhere about white female
women.” See also Doc. 25-1 at 26-28, undated “Motion” to eliminate institutional racism signed by six City
Council members.
5 Much of Plaintiff’s response similarly focuses on complaints about applications for promotion or other
events prior to November 27, 2015. (See, e.g., Doc. 27 at 4, citing Ex. B-2 and copies of a 2004 grievance
and subsequent reclassification and promotion of another employee in 2006 as an alleged example of
discrimination).
6 As Defendant points out, this assertion is one of many assertions or new allegations made by Plaintiff in
her response in opposition to Defendant’s motion without record support. (See Doc. 28 at 3-4).
4
10
Plaintiff’s reliance on 46 potential promotional opportunities is misplaced. Based
upon the defined limitations period, only applications submitted after November 27, 2015
are relevant. Positions for which Plaintiff submitted no application and expressed no
interest are irrelevant.7 Finally, despite some ambiguity in Plaintiff’s own records as to
whether she submitted 14 or 24 applications, she claimed (at most) to have submitted 24
applications during the relevant time period. That number is calculated by reference to a
list that Plaintiff compiled of responses allegedly received from HR to various applications.
(See Doc. 25-3, Ex. C). Only 24 of the responses post-date November 27, 2015.8
Plaintiff’s response in opposition to the pending motion emphasizes longstanding
disputes with her employer and her sense of being unfairly treated. She repeatedly
stresses that she obtained her bachelor’s degree and complains of “new HR policies” that
eliminated a degree requirement for many positions. (See Doc. 27 at 11, concerning
applicant data for job postings; Doc. 27 at 5, arguing that her “degree, years of excellent
performance reviews, [and] experience…should have paved the way” for promotion; see
also id., referring to “15 years of student loans and going to college every night and on
weekends for …five years while working full time”). Plaintiff asserts that she persevered
to obtain an on-line bachelor’s degree in 2010 from the University of Phoenix in
Business/Public Administration. (See Doc. 27 at 25). She complains that others were
promoted while she remained “blocked” despite that degree. (Doc. 27 at 2).
7
Plaintiff produced to Defendant a list of agenda items that she represented were printouts reflecting
promotions of eight individuals. (Doc. 25 at 211-212, Doc. 25-4). However, Plaintiff was unable to identify
any of the positions as positions for which she applied, but was rejected based on age or race, and/or in
which a candidate of a different race and/or younger age was treated more favorably because of their age
or race. (Id. at 213-224).
8 Although this Court previously defined the limitations period by reference to the date when Plaintiff
submitted her applications, the exhibit does not include Plaintiff’s application date.
11
On the whole, Plaintiff’s response evinces sincere beliefs that she has been
subjected to years of race and age-related discrimination and unfairly treated due in part
to evolving H.R. practices and policies. However, Plaintiff’s subjective beliefs as to the
reasons for her non-promotion are insufficient to overcome the Defendant’s otherwise
unrefuted evidence in favor of summary judgment. Notably, Plaintiff cannot identify the
age or race of the successful applicants for the vast majority of the promotions she sought.
Even if Plaintiff had come forward with the race and/or age of the candidates who
were ultimately selected for promotions over her, the fact that a younger candidate or a
person of a different race may have been selected is not sufficient absent a showing that
Plaintiff herself was similarly situated to the successful candidate. See Upshaw v. Ford
Motor Co., 576 F.3d 576, 585 (6th Cir. 2009) (to establish a prima facie case, plaintiff
must prove not only that she is a member of a protected class and that she was qualified,
but also that she was considered for and denied the promotion and that “other employees
of similar qualification who were not members of the protected class received
promotions”). “[T]he plaintiff must produce evidence that the relevant other employees
are ‘similarly situated in all respects.’” Hollins v. Atlantic Co., Inc., 188 F.3d 652, 659 (6th
Cir. 1999) (quoting Mitchell, 964 F.2d at 583). A plaintiff’s failure to point to evidence
concerning the similarities in position, responsibilities, job function, or level of
performance, and reliance on her own conclusory statements about differential treatment,
is insufficient to defeat summary judgment on this element. Hykes v. Geithner, 2014 WL
4656373 at *6 (W.D. Tenn. Sept. 15, 2014); accord Darby v. U.S. Dept of Energy, 2006
WL 7348136 at *6 (6th Cir. 2006) (African-American plaintiff failed to show that white
employees who were allegedly given numerous promotions were similarly-situated).
12
Pointing to alleged “discrimination” dating to the early 1990’s, which claims this
Court previously dismissed, Plaintiff expresses her belief that “it is probable in retrospect
that racial discrimination began long ago with the H.R. Director, who was African
American.” (Doc. 27 at 3). She speculates: “Nothing else makes sense.” (Id.) However,
speculation and conjecture are insufficient as a matter of law to prove Plaintiff’s case. As
this Court recently explained in another case:
Plaintiff cannot prove that she was the most qualified applicant merely “by
relying on her subjective evaluation and comparison of her qualifications” to
the selected applicant. See Hedrick v. Western Reserve Case Sys., 355
F.3d 444, 462 (6th Cir. 2004) (Plaintiff’s “subjective view of her qualifications
in relation to those of other applicants, without more, cannot sustain a claim
of discrimination.”); see also Sudduth v. Geithner, 2012 WL 1132748 at *3
(S.D. Ohio April 4, 2012) (granting summary judgment on race
discrimination claim) (additional citations omitted).
Newbill v. Secretary, Department of Treasury, 2018 WL 5251847, at *6 (Oct. 22, 2018),
adopted at 2018 WL 5982929 (S. D. Ohio Nov. 13, 2018).
Finally, much of Plaintiff’s response focuses on perceived inequities in evolving
HR policies that she fails to connect to her claims, despite inexplicably asserting illegal
discrimination arose from those new policies. For example, she argues that City antidiscrimination policies and practices have led the City “to omit best practices used in
successful private businesses which has left City employees vulnerable to discrimination.”
(Doc. 27 at 6). She asserts (without citation to evidence) that “I have experienced
repeated discriminating treatment due to the impact from seemingly neutral implemented
policies and practices that have had a disproportionately negative impact on my career,
both financially and emotionally and continue to experienced discrimination with every
paycheck I receive.” (Doc. 27 at 6). She complains that many were hired or promoted
from “outside” of the civil service system and through “unclassified or exceptional
13
appointments with new classification requirements,” and that many promoted employees
lacked college degrees. (Doc. 27 at 2; see also id. at 7, arguing that “Administrative
Promotions are going to civil servants through unclassified means, exceptional
appointments, working out of class and new hires [leading] to HR discrimination of me as
a Civil Servant to promotional opportunity. My race and age became a detriment in the
culture of the City organization and an easy target.”). As “proof” that the policies were
discriminatory, Plaintiff relies heavily on the fact that Human Resources has access to
data that reveals identifying characteristics including gender, ethnicity and age. (Doc. 27
at 7). “[L]isting my age and ethnicity with application information in the City’s HR
Department shows a platform of discrimination.” (Doc. 27 at 8). However, Plaintiff
concedes that there are “many reasons that the City has to keep statistics on gender and
race.” (Doc. 25 at 49-50).
C. Review of Specific Promotions for Which Plaintiff Applied
1. Positions for
Qualifications
Which
Plaintiff
Did
Not
Meet
Minimum
Of the positions for which Plaintiff actually applied during the relevant period, at
least five applications were rejected or failed based upon a failure to meet minimum
qualifications/eligible classification. (Doc. 25-2, Ex. B). A sixth application appears to
have been rejected because the job posting was canceled and not filled by anyone. (Doc.
25 at 162).
Plaintiff admits that many of the rejections were based on non-discriminatory
factors, such as a rejection of a transfer because Plaintiff’s “current classification is less
than that of transfer classification.” (Doc. 25 at 159-160). Other than referencing preNovember 2015 disputes about her classification status, Plaintiff offers no evidence to
14
refute the City’s denial of various applications based on a failure to meet minimum
qualifications. Thus, she has failed to produce relevant evidence that the rejection of five
applications was in any way based on her race or age: (1) March 14, 2018 (Senior Admin.
Specialist (noncompetitive)); (2) May 24, 2016 (Supervising Management Analyst
(Procurement)); (3) May 16, 2016 (MA-Budget/Management Analyst (non-competitive));
(4) May 16, 2016 (Internal Auditor (non-competitive)); and (5) December 29, 2015 (Admin
Specialist (transfer)). (See, e.g., Doc. 25-2; Doc. 25 at 102-103,106-108, testifying that
rejection of “transfer” application for Admin Specialist position was based on fact that
Plaintiff was not classified as an Admin Specialist and therefore ineligible for “transfer,”
and that she does not have evidence that race or gender played any role). Plaintiff has
also failed to prove any claim exists for a sixth application rejected based upon the
cancelation of the job posting.
Plaintiff testified that a classification rule applied to eliminate her applications was
not applied in the same fashion to Brandi Sanders, on one occasion. However, because
Ms. Sanders applied for an entirely different position and Plaintiff admittedly did not know
her qualifications, (Doc. 25 at 161-162), Plaintiff has failed to prove that Ms. Sanders was
“similarly situated.”
2. Failure to Identify Similarly Situated Individuals for Other
Applications
i. General Failure to Identify Winning Candidates
As Defendant points out, Plaintiff cannot establish her prima facie case because
she identifies no similarly situated individuals outside of her protected class who were
awarded positions for which Plaintiff herself was qualified. For example, on December
10 and again on December 28, 2015, Plaintiff submitted applications for Admin Specialist,
15
communicator. The disposition of both applications referred to “minimum qualifications.”
Plaintiff did not obtain either promotion, but has no evidence that race or age played a
role. (Doc. 25 at 94-96, 98, 101). On April 11, 2016, Plaintiff applied for another Admin
Specialist position for which her application was “referred” with other qualified applicants.
Although she did not obtain the position, she again testified she had no evidence that
illegal discrimination played a role other than her belief that HR considers accessible data
concerning the race and age of applicants. At the same time, she did not know who was
awarded the position, and has no information concerning the successful applicant’s race
or age. (Doc. 25 at 110).
When asked specifically whether she could point to any similarly situated
employee who was treated more favorably because of age or race, Plaintiff consistently
was unable to point to any evidence that would suggest bias. (Doc. 25 at 179-181, failing
to identify anyone in the position of supervising management analyst who was treated
more favorably because of their age or race), id. at 182 (Plaintiff’s admission that she
applied for only one supervising management analyst position during the relevant time
frame, which she believed was awarded to a Caucasian female). For the vast majority of
all positions to which she applied, Plaintiff testified that she did not know who was
awarded the positions and has no evidence other than her subjective belief or
speculation. (Doc. 25 at 112, 113, 118, 120-121, 123-124, 127-128, 140-142, 144, 148).
During her deposition, Plaintiff would repeatedly assert that “I think they looked at my age,
yes,” but could offer no evidence but for her own failure to obtain the promotion. (Id. at
232, “I never heard from them. So I assume that they --- I was not in the competition.
They weren’t going to consider me.”) (emphasis added).
16
Under McDonnell Douglas, Plaintiff was required to show background
circumstances that suggest the City is that unusual employer that discriminates against
the majority (Caucasian) race for her reverse discrimination claim. In addition, for both
the reverse-race discrimination and age discrimination claims, Plaintiff was required show
that a similarly situated employee was treated more favorably. In the absence of any
indication about who was selected for the positions for which Plaintiff applied, Plaintiff’s
hypothesis that similarly situated employees were treated more favorably based on
impermissible considerations of race and age is insufficient to prove her case.
ii. Identified Candidates Not Similarly Situated
Reviewing Plaintiff’s memorandum in opposition to judgment, her exhibits and
deposition testimony, the undersigned finds only two positions (other than the position
that Ms. Bruns was awarded) for which Plaintiff offered any testimony about the candidate
who was selected over Plaintiff. In support of her ADEA claims, Plaintiff alleged that both
positions were filled by younger Caucasian candidates. However, the record fails to yield
any genuine issue of fact as to whether the selected candidate was similarly situated,
and/or selected over Plaintiff based upon discriminatory animus toward Plaintiff’s age.
For example, Plaintiff testified about a supervising management analyst position
for which she applied on December 6, 2017 and for which her application was referred.
(Doc. 25 at 129-130). Plaintiff admitted that the position of supervising management
analyst and some other positions for which she applied would have amounted to a “fairly
substantial promotion,” several steps above her classification, and that such large
promotional jumps do not “normally” happen despite being theoretically possible. (Doc.
25 at 125, 127). She initially testified that the position in the Police Department was
17
awarded to Diane Bookwaiter, identified as “[w]hite, older. Not as old as me. Ten years
younger than me.”
(Id. at 130).9
However, she later clarified that it was not Ms.
Bookwaiter after all but instead was Bruce Ross, a younger white male who was a senior
human resource manager at the time, who received the promotion. (Id. at 114, 132, 135136). Other than the fact that Mr. Ross was born in 1982, Plaintiff has no evidence that
age played a role in her non-selection. (Doc. 25 at 136). The position held by Mr. Ross
prior to promotion was higher than Plaintiff’s position, but she did not otherwise know Mr.
Ross’s education, background or qualifications, (id. at 138). Plaintiff’s testimony that she
“could have fit well” in the position had she been selected, (Doc. 25 at 139), fails to prove
that Mr. Ross was similarly situated.
A second position for which Plaintiff identified a successful candidate was listed as
Admin Specialist for which “SME [subject matter expert] review” was required. Plaintiff
could not recall if the job required skills in data analytics, and agreed that race played no
role in the selection of the winning candidate, Leigh Tami. She again asserted that age
played a role based on her perception that Ms. Tami is younger. Again however, Plaintiff
had no knowledge of Ms. Tami’s qualifications and did not dispute defense counsel’s
representation that she possesses a law degree. (Doc. 25 at 140-142).10 In other words,
like the position awarded to Mr. Ross, Plaintiff offered nothing but her own speculation
that she was similarly situated to Ms. Tami, or that age played any role in Plaintiff’s nonselection.
Based on Plaintiff’s age at the time, Ms. Bookwaiter would have been 56 years old, which is within the
same protected age classification as Plaintiff herself under the ADEA.
10 Plaintiff’s testimony as to whether Ms. Tami was awarded that promotion or some other position was
equivocal. (See Doc. 25 at 143).
9
18
iii. Lorryn Bruns Not Similarly Situated
In addition to the applications actually submitted by Plaintiff, she bases one “failure
to promote” claim based upon the City’s refusal to permit her to apply for the position of
Senior Admin Specialist in her department, DOTE. It is undisputed that Lorryn Bruns
received a temporary promotion to that position in July 2016 and was permanently
promoted to the position on February 26, 2017. (Id. at 224, citing Doc. 25-4). Plaintiff
also complains that after Ms. Bruns was promoted, her prior position of Administrative
Specialist was left unfilled rather than posted so that eligible employees, such as Plaintiff,
could apply. (Tr. 27 at 6; see also Doc. 25 at 207). However, a failure to post a vacant
position does not indicate race and age discrimination against Plaintiff.
Plaintiff testified that Ms. Bruns is a Caucasian woman “15 years” younger than
Plaintiff.11 (Doc. 25 at 187). When Ms. Bruns first was given the temporary promotion to
Senior Admin Specialist, Plaintiff complained that the temporary assignment should be
rotated among other department employees.12 Her supervisor, Nick Sunyak, responded
favorably in part by agreeing that the Senior Admin Specialist position should be
temporarily rotated among interested employees who were already classified as Admin
Specialists, including Ms. Bruns. (Doc. 25 at 199, Doc. 25-1 at 23, expressing intent to
“first offer the rotation to Administrative Specialists” after determining interest, and then
providing existing Admin Specialists with “necessary training prior to their rotation period”;
Plaintiff was 65 years old in July 2016, which according to Plaintiff’s testimony would have made Ms.
Bruns age 50 at the time of promotion. The undersigned assumes for the purpose of the pending motion
that the age difference is sufficient to state a claim under the ADEA; the City does not argue otherwise.
12 Plaintiff testified that an Admin Specialist identified as an African-American female named Kimberly
Jackson also was unaware of the temporary opening until informed by Plaintiff. (Doc. 25 at 186-187).
Plaintiff asserts that Ms. Jackson also was never placed into the rotation for temporary promotion, because
that rotation never occurred. Instead, after staying in the temporary placement for 7 months, Ms. Bruns
was awarded the permanent position. (Id. at 201, 225-226). Considering Ms. Jackson’s race and Ms.
Bruns’ race, this testimony undermines rather than supports Plaintiff’s claim of reverse race discrimination.
11
19
see also Doc. 25-1 at 23). In an email response on which Michael Moore and Don
Gindling were copied, Mr. Sunyak explained that Plaintiff would not be included in the
rotation based on her lower classification, based on the “consensus” of DOTE “that
Administrative Technicians [are] not eligible for the temporary transfer.
This is a
temporary promotion of 2 grades.” (Id.) Mr. Sunyak further explained that in addition to
the group of eligible Admin Specialists who might rotate through the temporary position,
there were nine Admin Techs, which “would add years to the rotation, would also entail
extensive training on the various human resource systems, interfere with current
operations, and interrupt current duties.” (Id.)
After learning that she would not be considered for the rotation based on her lower
classification, Plaintiff expressed her long-standing frustration with her promotional
opportunities and her belief that her superior qualifications had not been fairly considered
via email:
I just spoke with Don and he relayed to me your comment about me not
being qualified for the position of a Senior Admin. Specialist for the rotation.
I am not the least bit surprised by your vindictive response as this is how
you have always treated me for the last 14 years. As you know, I was on
the supervising management analyst eligible list a couple of years ago
(Dianne Bookwalter received the promotion in CPD), which is above a
senior admin. specialist. … I’ve had more responsibility in CPD and City
Manager’s office than the other admin. Specialists who are deemed eligible
and I have two degrees with one in public administration. There is no longer
an eligibility list for the senior admin. specialist. I am eligible and required
to be included in the rotation.
(Doc 25-5 at 2). Denying Plaintiff’s accusation that the decision not to include her in the
rotation was “vindictive,” Mr. Sunyak’s response reiterated that the decision “was made
for efficiency in operations.” (Doc. 25-1 at 23)
20
Plaintiff concedes that Ms. Bruns and other Admin Specialists held positions one
step below the Senior Admin Specialist promotion, and that the Admin Tech position held
by Plaintiff is two steps lower. (Doc. 25 at 188). Ms. Bruns had worked as an Admin
Specialist since 2007 prior to being promoted. Plaintiff further admits that the position of
Senior Admin Specialist requires “two years of experience at administrative specialist or
higher” – a qualification that Plaintiff did not possess “officially,” notwithstanding her belief
that she had performed equivalent work. (Doc. 25 at 190-191). Nevertheless, Plaintiff
complains that Ms. Bruns did not have a bachelor’s degree. She testified to her belief
that the City chose Ms. Bruns based on her younger age. (Id. at 191). When asked for
evidence, Plaintiff responded, “[y]ou would have to ask them,” and could offer only “that’s
what I would get from it.” (Id.) The only other explanation Plaintiff offered was that Mr.
Sunyak, bore a personal “grudge” against her based upon a decade-earlier dispute over
her classification, which dispute Plaintiff attributed to racial bias.13 (Id. at 192; see also
id. at 191 “Nick did not want me to get the job because we had other things. I had other
problems with him.”). However, Plaintiff testified she was unsure whether it was Michael
Moore rather than Mr. Sunyak who promoted Ms. Bruns. (Id. at 194). Plaintiff had no
issues with Mr. Moore, but believed “he was a friend of Lorryn [Bruns].” (Id. at 194).
Based on the record presented, the City is entitled to judgment because Plaintiff
has failed to prove that Ms. Bruns was similarly situated in all respects. Unlike Plaintiff,
Ms. Bruns had been working as an Admin Specialist for years, and thereafter gained
Plaintiff does not explain how Mr. Sunyak’s alleged racial bias a decade earlier would relate to agerelated discrimination in the selection of Ms. Bruns in 2016. During the 2006 dispute, Plaintiff alleges that
Mr. Sunyak provided false information regarding her duties, leading to an incorrect classification. Other
than that dispute, the undersigned finds no need to recount other complaints or disputes that arose during
Plaintiff’s employment because they do not appear pertinent to the scope and time frame of the issues
presented in this case. (But c.f. 23 at 3-4).
13
21
seven months of experience as a temporary Senior Admin. Specialist prior to her
permanent selection for that position. As discussed below, even if a reviewing court were
to find that Plaintiff has submitted sufficient evidence to prove her prima facie case
(contrary to the conclusion of the undersigned), the undersigned alternatively would
recommend that judgment be granted in favor of the City based upon Plaintiff’s failure to
show that the Defendant’s articulated reasons for its decision were pretextual.
D. Alleged Bias in Promotional Test and 2016-2017 Eligibility List
An undefined number of the applications that Plaintiff submitted for the position of
Admin Specialist between June 2016 and July 2017 were rejected based upon Plaintiff’s
position on an eligibility list of qualified applicants. Plaintiff placed 46th out of 63 eligible
candidates on that list due to her poor test performance. Plaintiff testified that, other than
employees within the same department in which the Admin Specialist opening occurs,
only the top three on the list are typically “certified” for promotion. (Doc. 25 at 77-78; see
also id at 177, agreeing she was not certified based on her poor placement among those
who took the test).
Plaintiff believes that the inclusion of an oral interview on the test was unfair, and
did not recall an interview being used prior to 2016. (Doc. 25 at 69-70). Despite being
“great at interviews,” Plaintiff admitted that she “almost failed” the referenced interview,
contributing to her poor placement. (Doc. 25 at 59-60, 166). Plaintiff testified to her belief
that “HR included that oral interview to have more control over who gets promoted,” as a
pretext for discrimination. (Doc. 25 at 82; see also id. at 88 “I think they did that oral
interview to control the outcome of the eligibility list.”). In Plaintiff’s opinion, the oral
interview was “unnecessary” and should not have been permitted under a civil service
22
rule that provides for the inclusion of a structured oral interview “under the supervision of
the civil service staff in examinations where a written test is… insufficient.” (Doc. 25 at
69-70).
However, Plaintiff has no knowledge or evidence that the Civil Service
Commission did not approve the use of the structured oral interview in accordance with
applicable civil service rules. (Doc. 25 at 74-75). In short, Plaintiff offers no evidence to
support her subjective belief that the oral interview was added as a pretext for
discrimination.
Notably, the record fails to support an inference of discrimination. Plaintiff testified
that multiple 3-person interview panels were employed at six different locations over a
two or three day period, and that all panels asked approximately 75 applicants the exact
same five questions. (Doc. 25 at 84, 165-166). Plaintiff believed her own interview panel
may have been biased based upon its compositional makeup of one “older” Caucasian
female and two “young black girls.” (Doc. 25 at 60). She further testified to her subjective
belief that “interpretation, and looks, an older white woman – I think that played a hand in
how they responded to my answers.” (Doc. 25 at 86-87). However, she conceded that
the panel did not use racial slurs or make any other comments to suggest bias during the
brief five-question interview. Instead, without articulating any basis for her belief, Plaintiff
testified that their “attitude” was biased. (Doc. 25 at 166).
Plaintiff also testified that a lack of transparency in grading made it impossible for
her to rule out bias. (Id. at 167). However, it is Plaintiff’s burden to produce evidence of
bias; the Defendant is not required to disprove a legal theory for which Plaintiff has
produced no evidence. Ironically, Plaintiff also explicitly denied that those scoring the test
gave applicants lower scores based on age or race.
23
Q: But as far as that, as far as your age and your race, how did those come into
play?
A. For this test, none.
(Doc. 25 at 92; see also id. at 87).
E. Lack of Showing of Pretext
On the record presented, there is no need to consider pretext because Plaintiff has
failed to prove her prima facie case. However, to the extent that any reviewing court
would find that Plaintiff has made out a prima facie case of race discrimination, the
undersigned finds undisputed evidence of legitimate, non-discriminatory reasons for the
alleged failure to promote, and no evidence of pretext.
Under McDonnell Douglas, if an employer puts forth evidence of a legitimate,
nondiscriminatory reason for its action, the plaintiff must show that the reasons given were
not the true reasons, but were instead a pretext for discrimination. The “ultimate burden
of proving ... the intent to discriminate” remains with the plaintiff at all times. Wright v.
Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir.2006) (citing St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742 (1993)). “A plaintiff can refute the legitimate,
nondiscriminatory reason that an employer offers to justify an adverse employment action
‘by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate
the defendant's challenged conduct, or (3) was insufficient to warrant the challenged
conduct.’” Wexler v. White's Fine Furniture, 317 F.3d 564, 576–577 (6th Cir.
2003) (additional citation omitted). Plaintiff’s disagreement with her employer’s policies
and decisions does not mean that Defendant’s reasons lacked a basis in fact. See, e.g.,
24
Wright v. Murray Guard, Inc., 455 F.3d at 709 (affirming the district court’s dismissal of a
race discrimination claim).
V.
Conclusion and Recommendation
Accordingly, for the reasons stated, IT IS RECOMMENDED THAT Defendant’s
motion for summary judgment be GRANTED as to all remaining claims, and that this case
be closed.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
25
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARY JILL ALLGEYER
Case No. 1:16-cv-1128
Plaintiff,
Barrett, J.
Bowman, M.J.
v.
CITY OF CINCINNATI, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of
the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
26
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