KING v. Cincinnati Public Schools et al
Filing
31
ORDER denying 21 Motion for Summary Judgment as to Plaintiffs hostile work environment and constructive discharge claims. Plaintiffs remaining claims are dismissed as WAIVED.. Signed by Judge Susan J. Dlott on 3/13/19. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
RASHIDA KING,
Plaintiff,
v.
CINCINNATI PUBLIC SCHOOLS, et al.,
Defendants.
Case No. 1:17-cv-794
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Judge Susan J. Dlott
ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
This matter is before the Court on Defendants’ Motion for Summary Judgment (Doc. 21).
Plaintiff filed a response to which Defendants replied (Docs. 25, 29). For the reasons set forth
below, Defendants’ Motion for Summary Judgment will be DENIED as to Plaintiff’s claims for
hostile work environment and constructive discharge. Her remaining claims will be dismissed as
WAIVED.
I.
BACKGROUND
A. Facts
Defendant Cincinnati Public Schools (“CPS”) employed Plaintiff Rashida King as a
seventh and eighth grade social studies teacher at Riverview East Academy (“Riverview”) from
August 2015 until July 2016. Charlene Myers is the Riverview Principal.
In March 2016, King requested a one-week medical leave. King submitted the
appropriate documentation, and Myers approved the leave request. After completing the March
leave, King submitted Family and Medical Leave Act (“FMLA”) paperwork to Beth Willis, CPS
Human Resources Compliance Supervisor, requesting leave from April 4 through May 2, 2016.
Willis telephoned Myers to inform her of King’s leave request. During the telephone
conversation, Myers asked Willis the basis for King’s FMLA request. Willis responded that
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King’s leave request related to “psychological reasons.” (Myers Dep., Doc. 12 at PageID 428.)
Myers did not request any more specific information about King’s condition, and Willis did not
disclose anything further. (Id.)
Later that day, Myers met with King’s teaching team of five other teachers. An Assistant
Principal also joined the meeting. (Id. at PageID 430.) During the team meeting, Myers told all
present that King would be missing time for “psychological reasons.” (Id. at PageID 431.)
Myers further informed the team that for her, “personally, with my upbringing, my background,
it was hard for me to understand somebody taking time off for psychological reasons.” (Id. at
PageID 434.) Myers did not review school policies or request permission from King or from the
Human Resources Office before disclosing the reason for King’s FMLA leave request. (Id. at
PageID 431)
After the team meeting, one of the teachers present at the meeting, Susan Casteel,
contacted King. Casteel texted King that Myers made the following statements at the team
meeting: (1) “Rashida [King] isn’t coming back as some of you expected due to mental health;”
(2) “I’m having Mary [CPS Superintendent] check into it;” (3) “I don’t have to offer her the
position next year due to her exceeding the sick time;” (4) King’s “grades can be changed as far
as I’m concerned;” (5) “Is [King] mentally ill . . . that’s debatable;” and (6) “sources within the
school have said [King] posted a pic of her being out on [Facebook] and then Aimee says she
defriended me.” (Casteel Text Message, Doc. 10-3 at PageID 219–20.) When asked at her
deposition, Myers admitted referencing the “psychological reasons” for King’s leave, stating that
she personally would not take leave for mental health reasons, and engaging in a general
discussion of student grade changes prior to King’s return, but she denied making the other
statements. (Doc. 12 at PageID 436–43.)
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King contacted her union, and she attempted to contact the school district’s Director of
Human Resources to complain about Myers’ disclosure of her confidential medical information.
(King Dep., Doc. 10 at PageID 103.) When her complaints were not addressed and the Human
Resources Director failed to return her calls, she contacted an attorney. Her attorney then
contacted the Cincinnati Public Schools Office of General Counsel.
B. Procedural Posture
Plaintiff initiated this action alleging claims under 42 U.S.C. § 1983 (Equal Protection),
the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2615, et seq., the Rehabilitation Act, 29
U.S.C. §§ 504, et seq., the Ohio Civil Rights Act, O.R.C. §§ 4112.01, et seq., and the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. Defendants have moved for
summary judgment on all of Plaintiff’s claims. The Court heard oral arguments on March 7,
2019.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary
judgment is appropriate if “there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden to
show that no genuine issues of material fact are in dispute. See Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Provenzano v. LCI Holdings, Inc., 663 F.3d
806, 811 (6th Cir. 2011). The movant may support a motion for summary judgment with
affidavits or other proof or by exposing the lack of evidence on an issue for which the
nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322–24 (1986). In responding to a summary judgment motion, the nonmoving party may not
rest upon the pleadings but must “present affirmative evidence in order to defeat a properly
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supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986).
A court’s task is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Id. at 249. “[F]acts must be viewed in the
light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (emphasis added); see also E.E.O.C. v. Ford Motor
Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc). A genuine issue for trial exists when there is
sufficient “evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477
U.S. at 252; see also Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014) (“A
dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a
verdict in favor of the non-moving party.”) (emphasis in original) (citation omitted). “Factual
disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
“The court need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
III.
ANALYSIS
Defendants move for summary judgment on all of Plaintiff’s claims. Defendants contend
that King suffered no tangible injury or adverse employment action and that King cannot
factually support a hostile environment claim based on her disability. King responds that she has
offered enough evidence to establish a hostile work environment claim based on disability; that
CPS constructively discharged her; and that CPS, as a state actor, is subject to § 1983 liability for
an equal protection violation because it treated King differently from her non-disabled
coworkers. King agrees with Defendants that her complaint does not support a separate
retaliation claim. The Court will address Plaintiff’s claims individually.
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A. Hostile Work Environment
To establish a hostile work environment claim based on disability under the ADA, “the
employee must demonstrate that: (1) she was disabled; (2) she was subject to unwelcome
harassment; (3) the harassment was based on her disability; (4) the harassment unreasonably
interfered with her work performance; and (5) the defendant either knew or should have known
about the harassment and failed to take corrective measures.” Rafferty v. Giant Eagle Markets,
Inc., Case No. 2:17-CV-617, 2018 WL 5636169 at *8 (S.D. Ohio October 31, 2018) (quoting
Trepka v. Bd. of Educ., 28 F. App’x 455, 460–61 (6th Cir. 2002)).
In determining whether a plaintiff has established the existence of a hostile working
environment, “the factfinder must consider all of the circumstances, including ‘the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).1 “The ADA is
not ‘a general civility code for the American workplace[.]’” Rafferty, 2018 WL 5636169 at *8
(quoting Mance v. Malco Prod., Inc., Case No. 5:16CV1721, 2016 WL 5661619 at *2 (N.D.
Ohio Sept. 30, 2016)). Rather, “[a] hostile work environment occurs when an individual’s
workplace is ‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim’s working environment.’” WaltherrWillard v. Mariemont City Sch., Case No. 1:12-CV-476, 2014 WL 347027 (S.D. Ohio Jan. 30,
2014), aff’d, 601 F. App’x 385 (6th Cir. 2015) (quoting Harris v. Forklift Sys., 510 U.S. at 21).
“Plaintiff must show that the defendant’s conduct was objectively severe or pervasive enough to
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The standard for determining a hostile work environment based on disability claims is the same as that used in
Title VII claims for harassment based on race, color, religion, sex, or national origin. See Coulson v. Goodyear Tire
& Rubber Co., 31 F. App’x 851 (6th Cir. 2002).
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create a work environment that any reasonable person would find hostile or abusive, and plaintiff
must subjectively regard it as abusive.” Id. (citing Bowman v. Shawnee State Univ., 220 F.3d
456, 463–64 (6th Cir. 2000)).
In the case at bar, defendants admit that King was disabled, and there is evidence that
King was subjected to unwelcome harassment based on her disability. Myers admits revealing
that King was taking FMLA leave for psychological reasons, and “the other thing I said was,
personally, for me personally, with my upbringing, my background, it was hard for me to
understand somebody taking time off for psychological reasons.” (Doc. 12 at PageID 434, 436.)
Myers also acknowledges discussing whether other teachers should change King’s students’
grades, but she denies that it was in the context of trying to harass King. (Id. at PageID 439.)
The closer question here is whether the harassment was severe and pervasive enough to
unreasonably interfere with King’s work performance. The Court concludes that King has
offered enough evidence to create a genuine issue of material fact on this issue.
Specifically, Myers admittedly announced confidential medical information to King’s
entire teaching team without consent and implied that King was using FMLA leave
inappropriately. (Doc. 12 at PageID 434, 436, 439.) Casteel recalls Myers stating that King may
not be rehired and that King may not even be suffering from mental health concerns, and she
further recalls that Myers engaged the group in conversation about whether King’s social media
activity indicated she was not truly ill. (Casteel Text Message, Doc. 10-3 at PageID 219–20.)
After King complained about the team meeting disclosures, Myers allegedly became
upset with the team for telling King, raising her voice, causing people to be “on edge,” and
transforming an already “hectic” workplace into one described as “intense.” (Doc. 14 at PageID
507–508.) Indeed, Casteel feared disciplinary action for sharing the comments with King,
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feeling “the whole team was like on edge, Terri and Charlene [Myers], in particular about who
did it, who told Rashida [King].” (Id. at PageID 511.) She believed Myers and others were
being “crazy,” “dramatic,” “manipulative,” and engaging in “scare tactics.” (Id. at PageID 511–
12.) Casteel perceived Myers as “scary” and “emotional” about the situation, finding it “a lot to
weigh on my shoulders.” (Id. at PageID 513–14.)
Defendants correctly note that these events occurred while King was on FMLA leave and
not present in the building. However, King clearly knew about them and believed conditions
were not conducive to her return. Considering the evidence in the light most favorable to King,
there is a genuine issue of material fact concerning whether the harassment was sufficiently
severe and pervasive so as to interfere with King’s work.
Finally, there is evidence that CPS knew about the harassment and failed to take
corrective measures. Upon learning of Myers’ remarks at the team meeting, King contacted her
union, and she attempted to contact the CPS Director of Human Resources, Paul McDole,
directly. (King Dep., Doc. 10 at PageID 103.) While the union contacted CPS on her behalf,
McDole did not return her call. (Id.) McDole acknowledges that the union representative
contacted him regarding King’s complaint. (McDole Dep., Doc. 15 at PageID 528.) He
discussed King’s situation with the union representative at their weekly meeting, but he did not
question Myers prior to the meeting. (Id.) After the meeting, McDole spoke with Myers via
telephone regarding whether King would be returning, but he does not recall whether he asked
Myers about the remarks she made. (Id. at PageID 528, 531.) It was only after King retained an
attorney who then contacted CPS’ attorney that CPS initiated an investigation. (Hoying Dep.,
Doc. 16 at PageID 569–572.) Accordingly, with material questions of fact remaining,
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Defendants’ Motion for Summary Judgment will be denied as to King’s hostile work
environment claim.
B. Constructive Discharge
“To demonstrate constructive discharge, a plaintiff must adduce evidence to show that (1)
the employer deliberately created intolerable working conditions, as perceived by a reasonable
person, (2) the employer did so with the intention of forcing the employee to quit, and (3) the
employee actually quit.” Russell v. CSK Auto Corp., 739 F. App'x 785, 794 (6th Cir. 2018)
(quoting Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012)).
As to the first prong of this standard, the determination of whether a reasonable person
would feel compelled to resign “depends on the facts of each case, but we consider the following
factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in
job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work
under a younger supervisor; (6) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (7) offers of early retirement or continued
employment on terms less favorable than the employee’s former status.” Id. at 794–95 (quoting
Logan v. Denny’s, Inc., 259 F.3d 558, 569 (6th Cir. 2001)).
With regard to the second prong of the constructive discharge standard, “The employee
alleging constructive discharge need not prove that his or her employer undertook actions with
the subjective intention of forcing the employee to quit. Rather, the . . . intent requirement can be
satisfied so long as the employee’s resignation was a reasonably foreseeable consequence of the
employer’s actions.” Smith v. LHC Grp., Inc., 727 F. App’x 100, 106 (6th Cir. 2018). However,
the “employee must show that her working conditions were objectively intolerable” as the
constructive discharge “doctrine does not protect employees who leave their job ‘in apprehension
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that conditions may deteriorate later.’” Groening v. Glen Lake Cmty. Sch., 884 F.3d 626, 630
(6th Cir. 2018) (quoting Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002)). Generally,
“employees are expected to stay on the job if they can pursue other forms of relief.” Id.
As the Sixth Circuit has previously concluded:
[A]n employer’s criticism of an employee does not amount to
constructive discharge—especially when the employer’s criticism is
limited to a few isolated incidents. . . . See, e.g., Savage v. Gee, 665
F.3d 732, 739 (6th Cir. 2012); Smith v. Henderson, 376 F.3d 529,
534 (6th Cir. 2004) (calling an employee “incompetent” and a
“whiner” in front of other employees is normally insufficient to
establish constructive discharge); see also Cleveland v. S. Disposal
Waste Connections, 491 Fed. Appx. 698, 708 (6th Cir. 2012)
(disparaging comments isolated to only a few incidents and by a few
individuals do not alter working conditions). And the fact that the
[defendant]’s criticism was directed at [plaintiff]’s use of FMLA
leave does not somehow flip a switch, suddenly making her working
conditions intolerable. See Weigold v. ABC Appliance Co., 105
Fed.Appx. 702, 708–09 (6th Cir. 2004).
Groening, 884 F.3d at 631.
As to deliberately creating intolerable working conditions, King’s supervisor gathered
King’s entire teaching team (who were already stressed and overworked), disclosed to them
confidential medical information that King had taken leave for psychological reasons, stated that
“it was hard for me to understand somebody taking time off for psychological reasons,”
questioned whether King was actually mentally ill, informed the assembled group that she did
not have to bring King back the following year because she had exceeded appropriate leave time,
and implied—based on social media activity—that King was malingering. (Doc. 12 at PageID
434, 483; Doc. 10-3 at PageID 219–220.) While this is not the typical case of ongoing,
prolonged harassment, the Court concludes that these actions create a genuine issue of material
fact concerning whether a reasonable person would feel compelled to resign. The statements
went beyond mere insults, disclosed confidential information, and were made to King’s entire
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teaching team while King was not there to defend herself. Furthermore, once King reported
Myers’ statements to the team, Myers allegedly used fear and intimidation to unearth the culprit
responsible for disclosing her conduct, thereby exacerbating the problem.
As to the employer’s intention, a reasonable juror could conclude that King’s resignation
was a reasonably foreseeable consequence of Myers’ alleged actions. Defendants contend that
they did not intend to force King to resign, and, in fact, Myers thought King was an excellent
teacher and wanted her to return to Riverview. However, viewing the facts in the light most
favorable to King, Myers did not express this viewpoint until after King contacted both the
Human Resources Director and her union to report Myers’ behavior.2 Accordingly, Defendants’
Motion for Summary Judgment will be denied as to King’s constructive discharge claim.
C. Remaining Claims
King acknowledges that her Complaint does not allege a retaliation claim. (Doc. 25 at
PageID 724.) As to her 42 U.S.C. § 1983 claim for violation of her right to Equal Protection,
King offers the single sentence that she “was undoubtedly treated differently from her nondisabled coworkers, so § 1983 is applicable under the same analysis as discussed above.” (Id.)
However, she makes no attempt to offer evidence of Defendants’ treatment of non-disabled
coworkers or how an Equal Protection analysis would apply in this case. In her memorandum in
opposition to summary judgment, King actively defends only her hostile work environment and
constructive discharge claims. Thus, the Court concludes that King has waived her remaining
claims. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in
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Defendants also contend that King did not suffer a constructive discharge because they later offered her a similar
position at another CPS school. However, as explained in the Court’s Order Denying Defendants’ Motion in
Limine, any evidence that Defendants offered King a similar position at Aiken High School is inadmissible pursuant
to Federal Rule of Evidence 408.
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a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.”). Accordingly, King’s remaining claims will be dismissed as waived.
IV.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc. 21) is
hereby DENIED as to Plaintiff’s hostile work environment and constructive discharge claims.
Plaintiff’s remaining claims are dismissed as WAIVED.
IT IS SO ORDERED.
Dated: March 13, 2019
S/Susan J. Dlott________________
Judge Susan J. Dlott
United States District Court
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