McGuffey v. Hamilton County Sheriff's Office et al

Filing 104

ORDER denying 78 Motion to Dismiss; denying 78 Motion for Summary Judgment. Signed by Judge Susan J. Dlott on 7/29/2020. (wam)

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 1 of 24 PAGEID #: 12452

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHARMAINE MCGUFFEY,
Plaintiff,
v.
HAMILTON COUNTY SHERIFF’S
OFFICE, et al.,
Defendants.

Case No. 1:18-cv-322

:
:
:
:
:
:
:
:
:
:
:

Judge Susan J. Dlott
ORDER DENYING DEFENDANTS’
MOTION TO DISMISS AND FOR
SUMMARY JUDGMENT

This matter is before the Court on Defendants’ Motion to Dismiss and for Summary
Judgment (Doc. 78). Plaintiff opposed the motion, and Defendants replied in support of the
motion. (Docs. 90, 102.) The Court heard oral argument on July 22, 2020. For the reasons set
forth below, Defendants’ motion will be DENIED.
I.

BACKGROUND
A. The Neil Administration
Plaintiff Charmaine McGuffey, an openly lesbian female, began her career with the

Hamilton County Sheriff’s Office (“HCSO”) in 1983. During various times, McGuffey served
as a Corrections Officer, Trainer, Electronic Monitoring Deputy, and Training Captain.
When Jim Neil was elected Sheriff in fall 2012, McGuffey—whom he had known since
he was 18 years old—served as part of a transition team that assisted Neil in planning the HCSO
department and personnel structure. As part of a restructuring plan “to do more with less,” they
decided to consolidate the Jail and the Court Divisions. (Neil Dep., Doc. 19 at PageID 152–
153.) Neil promoted McGuffey to Major of Jail and Court Services in 2013. McGuffey was the
first woman to hold the rank of major in the HCSO. She remains the only woman to have held

1

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 2 of 24 PAGEID #: 12453

the major rank. This newly created position combined duties previously performed by three
male Majors.
Neil appointed Mark Schoonover to be his Chief Deputy, a position that reported directly
to him. Schoonover supervised the Internal Affairs Division (“IA”), and all Majors (including
McGuffey) reported directly to Schoonover.
Major McGuffey requested—and Sheriff Neil approved—rehiring Heather Dobbins, a
former HCSO employee, to serve as her administrative assistant. At the time of her promotion,
the Jail was deficient in several areas, “so it was a task of Major [McGuffey] to work to get us
back in, to do her due diligence to get us back in compliance . . . which she was able to do with
the jail standards set by the state.” (Doc. 19 at PageID 148.) According to Neil:
Over the course of the four years that she was the Major she received
a number of letters of appreciation and accolades from both partners
in the private sector, as well as partners in the public sector. She
had a reputation at the state level with the . . . State Sheriff’s
Association for her work in corrections. Over the body of her career,
not just as a major, but she has a reputation with other sheriff’s
offices and sheriff’s offices’ deputies who worked with her on a state
basis when it comes to jail standards in Ohio. She’s worked with
other sheriff’s deputies from other offices as well. She has a
reputation that goes back to her days in Training as well.
(Doc. 19 at PageID 149; see also Exh. L, Doc. 19-19 at PageID 799–815.) Defendants admit
that McGuffey, through “passion” and “experience” also created innovative jail programming
that never had been done before in Hamilton County and helped take the Jail “to another level.”
(Doc. 19 at PageID 165.) In McGuffey’s only performance review as a Major, Neil assigned her
an “A,” adding that she was his favorite major. (Id. at PageID 221–222.)
This, however, is where the parties’ positions diverge. According to McGuffey, female
officers within the HCSO, historically, “were not respected, were not promoted appropriately,
and were really kind of treated like second-class citizens.” (McGuffey Dep., Doc. 74 at PageID
2

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 3 of 24 PAGEID #: 12454

8897.) When McGuffey became Major of Jail and Court Services, she spoke with Sheriff Neil
and Chief Deputy Schoonover about two subordinates she believed to be disrespectful or
insubordinate to her, and the Sheriff dismissed her concerns, saying, “these guys just don’t like
working for a woman” and “you’ve got to get along with these guys.” (Doc. 74 at PageID 9013,
9063.)
B. Excessive Use-of-Force Concerns
Early in the Neil administration, Sergeant William Rarrick transferred to IA. After
“about six hours of on-the-job training,” he became the sole officer assigned to conduct IA
investigations. (Rarrick Dep., Vol. 1, Doc. 46 at PageID 4928.)1 A month or two later, Steve
Minnich transferred to IA to assist Rarrick in Internal Affairs. According to McGuffey, Rarrick
“approached me and told me that he should be the person running the jail, and not me [and] . . .
he had the credentials to run that jail better than I could run it.” (Doc. 74 at PageID 8973–8974.)
Rarrick, as head of IA, reported directly to Schoonover. After he assumed the IA role,
Rarrick began complaining about McGuffey. (Doc. 46 at PageID 4931.) Specifically, he and
McGuffey had a dispute about proper use of force. According to Rarrick, the national standards,
applied both to patrol officers and in a jail setting. The Sheriff could set additional standards for
a “controlled setting” like a jail if he wanted, but Sheriff Neil had not done so. (Id. at PageID
4933–4937.) Rarrick complained that McGuffey wrote officers up for use-of-force incidents
that, to Rarrick, were not excessive under the approved standards. (Id. at PageID 4953–4955,
4963–4966.)
McGuffey complained that use of force was “out of control” since Rarrick took charge of
IA, and Rarrick complained that McGuffey misunderstood the proper standard for use of force

1

Later in 2013, Rarrick received at least two weeks of additional IA training to become certified. (Doc. 46 at
PageID 4944.)

3

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 4 of 24 PAGEID #: 12455

and failed to follow the protocol he created when injuries occurred at the Jail. (Doc. 46 at
PageID 4971–4973.) Rarrick did not like McGuffey checking up on his investigations, and he
told Schoonover and Neil so. (Id. at PageID 4992–4993.) According to McGuffey, Rarrick
refused to inform her about the outcome of investigations for officers under her command,
frustrating McGuffey. (Doc. 74 at PageID 9081–9082.)
Rarrick told Schoonover that McGuffey interfered with investigations and tampered with
his witnesses. (Doc. 46 at PageID 4993.) For example, a female officer assisted a female work
release inmate in making a complaint against a male officer who allegedly made inappropriate
comments to the inmate. Rarrick investigated the female inmate (who acknowledged the
comments but stated she was not offended by them) and concluded that the female officer should
be disciplined for lying. McGuffey urged Schoonover not to discipline the female officer for
fear that future officers would not come forward with these concerns. (Id. at PageID 4995–
5008.) McGuffey told Schoonover and Rarrick, “[Y]ou cannot charge this female who brought
these allegations forward because no other female will want to do it.” (Id. at PageID 4996.)
Rarrick responded, “I flat-out told her, you’re getting your emotions way too involved in this.”
(Id.) Rarrick told Minnich, “this is going to turn into a tub of crap here pretty soon because
[McGuffey] interfered.” (Id.)
Neil and Schoonover told Rarrick that McGuffey denied interfering, and Rarrick insisted
she was lying to them. (Id. at PageID 4986–4987.) Rarrick told Minnich not to have
conversations with McGuffey or another officer about use-of-force investigations “because they
didn’t understand.” (Id. at PageID 4988.) According to McGuffey, Rarrick commented in front
of the Chief Deputy and the command staff that he had tried to lock the door to the command
staff meeting room so that McGuffey would be unable to enter. (Doc. 74 at PageID 9060–9061.)

4

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 5 of 24 PAGEID #: 12456

C. Supervisory Issues
Although swearing and stern voice tones are an accepted part of the HCSO culture,
employees complained about McGuffey’s use of profanity and harsh words. (Doc. 46 at PageID
4975.) However, Jim Knapp, Sheriff Neil’s assistant and direct report, heard employees
complain not just about McGuffey but also about Neil and Schoonover. (Knapp Dep., Doc. 83 at
PageID 11856.) He “took it with a grain of salt” because “nobody ever likes the boss.” (Id.)
According to Knapp, Rarrick complained that McGuffey “would get mad at him for not, I guess,
keeping her in the loop, if you will” regarding investigations. (Doc. 83 at PageID 11859.)
In August 2016, Knapp called McGuffey and informed her he wanted to go to lunch on a
specific day and time, and she agreed to go. (Doc. 74 at PageID 9064.) Knapp brought Rarrick
to the lunch. (Id.) Knapp and Rarrick told McGuffey they “had a message for [her], and the
message was that the men who work for [her] did not like [her] style of supervision.” (Doc. 74
at PageID 9065.) Specifically, they told her, “you ask too many questions, you dive into
procedure too much.” (Id.) Then, according to McGuffey:
I said, guys, I am actively changing policy, I’m working on this jail
inspection and getting all of the standards met and so forth, and I
absolutely have to understand what everyone is doing right down to
the degree that I – you know, right down to the bottom line, so I can
understand how to change it or what needs to be done. And so I do
ask questions and I am holding people accountable for their
workloads. And they said, one of them, well, the guys don’t like it.
And I said, well, can you give me an example? Because if you can
give me an example, I’ll change it. And they both said, we can’t
give you an example. Just know that if you don’t stop doing what
you’re doing, we are going to tell [Schoonover] to fire you. And I
said, what? And they said, yeah, he fired Lorna2 for the same thing
because she wasn’t getting along with people and we will tell him
to fire you.

2

Lorna Rose was an employee whose employment had been terminated from the HCSO. (Doc. 83 at PageID
11873.)

5

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 6 of 24 PAGEID #: 12457

(Doc. 74 at PageID 9065–9066 (footnote added for clarity).) Knapp confirmed that this lunch
occurred and that they were “trying to help” McGuffey by suggesting she “let people under [her]
take care of certain things.” (Knapp Dep., Doc. 83 at PageID 11871–11872.) Schoonover
confirmed that he allowed Knapp and Rarrick to take McGuffey to lunch to vet McGuffey’s
subordinates’ “minor complaints” about her. (Schoonover Dep., Doc. 23 at PageID 1697–1698.)
Believing she was about to be fired after the lunch with Knapp and Rarrick, McGuffey
requested a meeting with Neil and Schoonover. (Doc. 74 at PageID 9066–9067.) She requested
a formal evaluation, and Neil said, “oh, you’re doing great, you get a grade of A.” (Id. at PageID
9068.) When she asked if there was anything she should change or anything he or Schoonover
would counsel her on, the Sheriff responded, “No, no, you’re doing great.” (Id.) In his
deposition, Neil confirmed that McGuffey asked for an evaluation, and he gave her an “A,”
adding that she was his “favorite major.” (Doc. 19 at PageID 221–222.)
D. Dobbins’ Complaint
Dobbins began working for McGuffey in 2013. Initially, Dobbins enjoyed serving as
McGuffey’s administrative assistant. She considered McGuffey a friend and a great boss.
(Dobbins Dep., Doc. 31 at PageID 2263–2266.) Dobbins—and McGuffey—considered
McGuffey’s office to be very fast-paced with many tasks to be done.3 (Id. at PageID 2266.)
By the end of 2016, Dobbins had become unhappy working for McGuffey, and she began
asking about a transfer. (Doc. 31 at PageID 2167–2168.) Major Price, supervisor of the Special
Services Division, offered to make Dobbins a recruiter in his division, and she agreed. (Id. at
PageID 2173.) She transferred in December 2016.

3

Since McGuffey’s termination, Jail Services and Court Services have been separated into two divisions overseen
by two separate officers. (Doc. 31 at PageID 2265.)

6

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 7 of 24 PAGEID #: 12458

In the HCSO, IA reports to Chief Deputy Schoonover. If IA finds a complaint
unfounded, Schoonover reviews it and, if he concurs, the process ends there. (Doc. 19 at PageID
227.) If the complaint is sustained and Schoonover concurs, the IA report proceeds to Neil for
discipline. (Id.)
On January 13, 2017, Dobbins filed a formal complaint against McGuffey, in which she
complained that McGuffey would not let her return to the Jail after she transferred jobs, and she
had to schedule an appointment to retrieve items she left in her former office. According to
Dobbins, “I believe this is an attempt to embarrass me and make me feel as if I have done
something wrong due to the fact I am no longer working for her. During the last 4 years Major
McGuffey has ‘bullied’ me and made me do things that are not in my job description.” (Doc. 1918 at PageID 691.)
During her interview with IA, Dobbins alleged that “there were some really good days in
the office and [McGuffey] was easy to work with [but] . . . [t]here were times, depending on
Major McGuffey’s stress level, that the Major would be sharp and talk to her in a way that she
described as ‘awful.’” (Id. at PageID 692.) Dobbins complained that, beginning approximately
six months into her nearly four years of working for McGuffey, McGuffey sometimes spoke to
her in a way that made her feel “belittled and berated and made to feel like a child who was not
performing her job properly.” (Id. at PageID 694.) When asked about outside “triggers” that
may have precipitated the change in working environment, Dobbins mentioned “a break-up” and
“that Major McGuffey thought she was always under scrutiny from Chief Schoonover because
she was a woman and thought she had to work harder to prove herself.” (Id. at PageID 695.)
In response to IA questioning, others indicated McGuffey “chewed [people] out” (Id. at
PageID 697), “yelled and cussed” at them (Id. at PageID 698), “whooped [them] verbally” (Id. at

7

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 8 of 24 PAGEID #: 12459

PageID 699), “is very pro-lesbian” (Id. at PageID 700), “scolds people” so they try to “avoid her
totally” (Id.), treats personal friends more favorably than others (Id. at PageID 715–716), and
“went way beyond to help females” (Id. at PageID 730). Many of the incidents noted in the IA
report happened in late 2013 or early 2014, during the transition from the prior administration to
the Neil administration.
After receiving the IA report, Lawson and Schoonover recommended to Neil that
McGuffey be terminated. Schoonover was aware that McGuffey carried a heavy workload, but
he did not consider disciplinary action for her short of termination. (Doc. 23 at PageID 1700–
1701.)
Sheriff Neil recognized that Major McGuffey had done “flat-out awesome” work
bringing in outside agencies and incorporating new services into the county jail. (Doc. 19 at
PageID 158.) He did not verify any claims in the IA report, but he reviewed the report and
concluded:
31 deputies can’t all be liars and not telling the truth. And I had to
make a decision. Charmaine [McGuffey] and I have always had a
very good relationship, but apparently the findings of this, that she
doesn’t always have a good heart with everybody, and I had to do
what I had to do to protect the deputies of the Hamilton County
Sheriff’s Office and remove her from the position of Major but put
her in a position where she can continue to work her magic and do
wonderful things for the jail and for the people of Hamilton County.
(Id. at PageID 174.) Sheriff Neil offered McGuffey a civilian position as Coordinator of
Programming in the Jail and gave her thirty days to decide whether she would accept the
demotion or be terminated. She refused the demotion, and Neil terminated her employment.
After McGuffey’s termination, the Sheriff promoted a heterosexual male to Major who assumed
McGuffey’s prior responsibilities. (Turner Dep., Doc. 20 at PageID 928).

8

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 9 of 24 PAGEID #: 12460

E. Procedural Posture
McGuffey alleges that Defendants terminated her employment: based on gender or sexual
orientation, in violation of Title VII, 42 U.S.C. §2000e-2 and Ohio Revised Code Chapter 4112
(Counts I – IV); in retaliation for opposing unlawful employment practices, in violation of Title
VII, 42 U.S.C. § 2000e-3 and Ohio Revised Code § 4112.02 (Counts V and VI); and in violation
of public policy under Ohio law because she objected to IA’s refusal to discipline officers in
excessive use-of-force incidents (Count VII). Defendants move for summary judgment on all
claims.4
II.

MOTION FOR SUMMARY JUDGMENT
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, 585–587 (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,
322–324 (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

4

In addition to moving for summary judgment on all claims, Defendants also moved to dismiss Plaintiff’s claim for
discrimination based on sexual orientation. (Doc. 78 at PageID 11719.) However, during the pendency of this
motion, the Supreme Court of the United States resolved a split among the circuits on this issue, ruling that Title VII
includes protection from discrimination based on sexual orientation. Bostock v. Clayton Cty., Georgia, ___ U.S.
___, 140 S.Ct. 1731 (2020). Accordingly, Defendants’ motion to dismiss Plaintiff’s claim for sexual orientation
discrimination for failure to state a claim upon which relief can be granted is denied.

9

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 10 of 24 PAGEID #: 12461

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 Cty., 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 moved for summary judgment on all claims. The Court will address each set

of claims separately.
A. Gender and Sexual Orientation Discrimination Claims (Counts I—IV)
Plaintiff alleges Defendants violated Title VII and Ohio Revised Code Chapter 4112 by
discriminating against her because she is female and a lesbian.5 Title VII makes it unlawful for
an employer to “fail or refuse to hire or to discharge, or otherwise discriminate against any

5

“Chapter 4112 of the Ohio Revised Code prohibits, among other things, discrimination on the basis of sex. . .
Because that statute’s prohibitions mirror those of . . . Title VII, the state-law claims rise or fall on the resolution of
the federal claims.” Hostettler v. College of Wooster, 895 F.3d 844, 848, n.1 (6th Cir. 2018).

10

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 11 of 24 PAGEID #: 12462

individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The United States Supreme
Court recently clarified that Title VII includes protection from discrimination based on sexual
orientation or transgender status. Bostock v. Clayton Cty., Georgia, ___ U.S. ___, 140 S.Ct.
1731 (2020).
A plaintiff can rely on either direct or circumstantial evidence of discrimination to
overcome a motion for summary judgment on a Title VII claim. Shazor v. Prof’l Transit Mgmt.,
Ltd., 744 F.3d 948 (6th Cir. 2014). Where, as here, there is no direct evidence of unlawful
discrimination, the Court must apply the familiar burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this approach, Plaintiff “must first make out a prima facie
case of discrimination by showing: 1) that [she] was a member of a
protected class; 2) that [she] was discharged; 3) that [she] was
qualified for the position held; and 4) that [she] was replaced by
someone outside of the protected class.” Griffin v. Finkbeiner, 689
F.3d 584, 592 (6th Cir. 2012) (quotation marks omitted). Once a
plaintiff has established her prima facie case, the burden “shifts to
the employer to offer a legitimate, non-discriminatory explanation
for its actions; finally, the burden shifts back to the plaintiff to show
pretext.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009).
Shazor, 744 F.3d at 957.
To establish pretext, a plaintiff must show that the stated reason has no basis in fact, did
not actually motivate the decision, or was insufficient to warrant the adverse action. Chen, 580
F.3d at 400; Miles v. South Central Human Resource Agency, Inc., 946 F.3d 883, 888 (6th Cir.
2020). “At the summary judgment stage, the issue is whether the plaintiff has produced evidence
from which a jury could reasonably doubt the employer’s explanation.” Crawford v. Chipotle
Mexican Grill, Inc., 773 F. App’x 822, 830 (6th Cir. 2019) (quoting Montell v. Diversified
Clinical Serv., Inc., 757 F.3d 497, 508 (6th Cir. 2014)).
11

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 12 of 24 PAGEID #: 12463

In the case at bar, Defendants concede that McGuffey has established a prima facie case
of discrimination based on sex. (Doc. 78 at PageID 11707.) Defendants offer as the legitimate
nondiscriminatory reason for her termination the “findings in the IA investigation of creating a
hostile work environment and dishonesty.” (Doc. 78 at PageID 11708.) The issue before the
Court, then, is whether McGuffey has offered evidence from which a jury could reasonably
doubt that the HCSO fired her for the non-discriminatory reason stated. The Court concludes
that both the IA conclusions and the unusual nature of the IA investigation itself raise genuine
issues of material fact from which jurors could reasonably doubt the employer’s stated
explanation.
1. Investigation Methods
McGuffey offers evidence that the way in which IA investigated the complaint against
her differs significantly from IA investigations into similar complaints lodged against
heterosexuals and men. Plaintiff offered IA reports of others she alleges to be relevant, and
Defendants identified seven other “hostile work environment” complaints IA investigated during
the relevant period. (Doc. 102 at PageID 12389.) Viewing these investigations in the light most
favorable to McGuffey, the dramatically different way in which IA conducted the McGuffey
investigation creates a genuine issue of material fact regarding pretext.
a. Vest Complaint Against Oberlander – 2015
Corrections Officer (“C.O.”) Aaron Vest lodged a formal complaint alleging that his
supervisor, Sergeant Aaron Oberlander, swore at him, “talked down to him,” and “belittled and
embarrassed” him in front of others. (Doc. 87-4 at PageID 11931.) Vest felt “demoralized” and
“humiliated,” and it affected his job performance. (Id. at PageID 11933.) Vest specifically
reported that Oberlander did this to him more than once and that he treated other officers

12

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 13 of 24 PAGEID #: 12464

similarly. (Id. at PageID 11933.) Before even interviewing Sergeant Oberlander, IA “explained
to Officer Vest that his allegations of ‘hostile work environment’ were not valid and did not rise
to that level.” (Id.) IA did not request names of nor interview any of the other officers whom
Sergeant Oberlander allegedly “belittled and embarrassed.” IA closed the complaint as
unfounded.
b.

Kilday Complaint Against Buchanan – 2015

Sergeant Melissa Kilday lodged a formal complaint alleging that her supervisor,
Lieutenant Brad Buchanan, “intimidated” and “bullied” her. (Doc. 23-7 at PageID 1852.)
Specifically, Kilday alleged Buchanan became frustrated after Kilday was not transferred to
make room in Buchanan’s squad for Buchanan’s personal friend. (Doc. 23-8 at PageID 1854.)
After that, Kilday alleged, Buchanan repeatedly returned reports to her for correction without
explanation and would often re-correct a report back to her original draft, requiring her
repeatedly to stay past her normal shift without pay just to fix these reports. (Id.) IA interviewed
Lieutenant Buchanan’s supervisor, Captain Scheffler, as well as Kilday’s former supervisor.
According to the IA report, “Captain Scheffler believed that Lt. Buchanan was 60% harassing
Sergeant Kilday and 40% of simply being a poor supervisor.” (Id. at PageID 1855.) However,
IA closed the complaint as unfounded. (Id. at PageID 1858.)
c.

Durham Complaint Against McGuffey – 2016

C.O. Jamelia Durham lodged a formal complaint against Plaintiff Charmaine McGuffey,
alleging that McGuffey “completely went off on” her. (Doc. 99-1 at PageID 12110.) The IA
report indicates that McGuffey received a report from a Cincinnati Police Department Detail
Coordinator complaining about Durham for three specific reasons. (Id. at PageID 12111.) IA
“explained to C.O. Durham that Major McGuffey and Captain Turner have a right to call her in

13

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 14 of 24 PAGEID #: 12465

order to question her about a complaint . . . [and] informed that CPD does not want her to work
anymore [sic] details for CPD.” (Id.) IA closed the case as unfounded without further
investigation. (Id.)
d. Bonnell, Ebbers, and Reese Complaints Against Giblin and Noonan – 2016
Deputies Debbie Bonnell, Shana Ebbers, and Pam Reese lodged a formal complaint
alleging that Director Karen Giblin and Supervisor Kenneth Noonan talked to subordinates about
fellow co-workers and that Giblin “embarrasses [Bonnell] in front of other employees by yelling
and cursing at her.” (Doc. 99-1 at PageID 12108–12109.) The parties involved agreed to meet
to resolve their concerns, and IA recommended the case be closed as unfounded because it did
not rise to the level of a hostile work environment. (Id. at PageID 12109.)
e.

Kilday Complaint Against Reed – November 2018

Sergeant Melissa Kilday lodged a complaint involving “several incidents” in which
Lieutenant Jacqueline Reed mistreated her and others. (Doc. 99-1 at PageID 12089.)
Specifically, she alleged that Reed “berated” her, swore at her, spoke to her in a threatening tone,
and attempted to “intimidate and ridicule me to show me she is the boss.” (Id.) IA interviewed
other witnesses who confirmed that the conversations at issue were “tense” and that Reed has
such an “abrasive attitude” that one officer avoids her. (Id. at PageID 12090.) IA closed the
investigation as “exonerated.” (Id. at PageID 12091.)
f. Magee Complaint Against Price – 2019
Sergeant John Magee lodged a formal complaint alleging that his supervisor, Major Earl
Price, did not like him and intentionally limited his career advancement. (Doc. 99-1 at PageID
12087.) Apparently, without interviewing anyone other than Sergeant Magee, IA concluded that

14

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 15 of 24 PAGEID #: 12466

his complaint did not constitute a hostile working environment, and recommended the case be
closed as unfounded. (Id. at PageID 12088.)
g. Dobbins Complaint Against McGuffey – 2017
On January 11, 2017, Heather Dobbins—after she transferred to another position—
lodged an official complaint against McGuffey. Specifically, she alleged that McGuffey
“bullied” her, asked her to do things not in her job description, and caused her “undo [sic] stress”
in her personal and professional life during the time she worked as McGuffey’s administrative
assistant. (Doc. 19-18 at PageID 691.) She believed that McGuffey limited the time she could
return to her office to retrieve belongings after her transfer in “an attempt to embarrass me and
make me feel as if I have done something wrong due to the fact I am no longer working for her.”
(Id.)
In investigating Dobbins’ complaint, IA asked Dobbins for names of anyone who could
elaborate on her complaint and ultimately interviewed more than thirty people. (Dobbins Dep.,
Doc. 31 at PageID 2373–2400.) However, according to McGuffey, IA failed to interview or
discounted as untruthful the witnesses McGuffey identified. (Doc. 74 at PageID 9185–9186.)
Indeed, Brian Hale told IA investigator Lee that he had been in “plenty of meetings” with
McGuffey, “sometimes two or three times a day” and he did not recall ever attending a meeting
where “she conducted herself in a bad way.” (Lee Dep., Doc 39 at PageID 3363.) Instead of
accepting Hale’s testimony as true (as he had for witnesses adverse to McGuffey), Lee told him,
“I have a lot of respect for you personally, professionally, everything, but you’re ruining that
right now.” (Id. at PageID 3364.) Lee acknowledges that he questioned Hale’s honesty for not
remembering a four-year-old meeting, but he accepted as true another person’s failure to recall

15

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 16 of 24 PAGEID #: 12467

something that happened a week earlier. (Id. at PageID 3366.) IA sustained the hostile work
environment complaint against McGuffey, leading to her termination.
Of the eight hostile work environment investigations Defendants identify, only one—
Dobbins’ complaint against McGuffey—was sustained. While the other investigations focused
on the specific event alleged in the complaint (even where the complaint identified other relevant
events and witnesses), the 2017 McGuffey investigation spanned her entire nearly four-year
tenure as Major. In sharp contrast to the IA investigations of heterosexuals and males, IA sought
out and questioned numerous people who never filed a complaint against McGuffey.6 While the
other IA investigation reports were less than five pages long, the one at issue here spans a
massive 108 pages. The obvious differences in the way these investigations were conducted
raise genuine issues of material fact as to pretext.
2. Investigation Findings
In addition to differences in the IA investigation methods, the IA conclusions offer
insight into whether IA treated McGuffey differently than heterosexual or male employees who
engaged in similar or more serious conduct. Specifically, where heterosexual male officers were
involved, IA concluded that “hostile work environment” complaints are not actionable unless the
complained behavior was based on protected status or constituted more than personal conflicts or
petty slights, yet IA applied a different standard to the 2017 McGuffey investigation.
When Sergeant Melissa Kilday complained that Lieutenant Brad Buchanan,
“intimidated” and “bullied” her, IA concluded—after consulting legal counsel—that “unless the

6
For example, in April 2013 (when McGuffey was still new to her position), one inmate died in jail custody and
another overdosed but was revived. (Doc. 19-18 at PageID 726.) Although the Lieutenant in charge “was very
proud” of how his supervisors handled things, McGuffey telephoned him and began “firing questions at him” and
made him feel “as though she was blaming him personally for inmate Barton’s death and inmate Newman’s OD.”
(Id.) In the course of the IA investigation of McGuffey four years later, IA investigators contacted the Lieutenant to
interview him even though he had specifically chosen not to file a complaint against her. (Id. at PageID 726–727.)

16

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 17 of 24 PAGEID #: 12468

actions were committed based upon her protective class then it did not rise to that level” of
creating a hostile work environment. (Doc. 23-7 at PageID 1852, 1856.) IA found the hostile
work environment complaint to be unfounded at least in part because Buchanan treated a male
subordinate similarly. (Doc. 102 at PageID 12385–12386.) Schoonover concurred in that
finding. (Doc. 23-8 at PageID 1858.)
Similarly, when Sergeant John Magee brought a complaint against Major Earl Price
alleging that Price “created a hostile work environment that has interfered with [Magee’s]
career,” IA “informed Sgt. Magee that a hostile work environment complaint must prove a
situation or situations where the employee is exposed to a work environment permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions” of employment. (Doc. 87-2 at PageID 11924 (emphasis added).) On that basis,
IA closed Magee’s complaint as unfounded, and Schoonover concurred in that finding. (Id. at
PageID 11925.)
In sharp contrast, the complaint against McGuffey details alleged mistreatment of men
and women equally. (Doc. 19-18.) No allegations or findings discuss discriminatory intent or
actions based on hostility towards a protected class. Yet, IA sustained the violation of Policy
215.00 – Hostile Work Environment against McGuffey. (Doc. 19-18 at PageID 797–798.)
Furthermore, the IA investigation encompassed incidents dating back approximately four
years to the very beginning of McGuffey’s tenure as a Major. (Id. at PageID 702–716, 719, 721–
723, 725–729.) Oddly, Jamelia Durham’s allegations against McGuffey in 2016—that IA
concluded to be “UNFOUNDED” on September 8, 2016 in IA Report #59-16—serve as one of
the bases underlying the IA’s 2017 report leading to McGuffey’s termination. (Compare Doc.
99-1 at PageID 12110–12111 with Doc. 19-18 at PageID 789–790, 796.) Neither party

17

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 18 of 24 PAGEID #: 12469

identified any other IA investigation in which a previously investigated, unfounded complaint
later served as support for a subsequent finding that a violation occurred.
In the 2016 IA report by (then-Sergeant) Steve Minnich, Minnich concluded that it was
Durham’s own unsatisfactory performance that justified McGuffey’s strong words and discipline
against Durham. (Doc. 99-1 at PageID 12111.) In the 2016 IA investigation, “Captain Turner
said that the interview was not confrontational and Major McGuffey did not cuss at C.O.
Durham during this interview.” (Id.) However, in the 2017 IA investigation underlying
McGuffey’s termination, (now-Lieutenant) Minnich describes the exact same incident as, “C.O.
Durham became emotional as if she was reliving the incident” when “Major McGuffey yelled,
screamed and leaned over her desk.” (Doc. 19-18 at PageID 789–790.) In the 2016
investigation, Minnich supports the discipline McGuffey imposed against Durham, removing her
from training. (Doc. 99-1 at PageID 12111.) Yet, in the 2017 IA report, Minnich states,
“Captain Price said he did not want [Durham] out of training because she was doing fine and the
Sheriff’s Office had spent a lot of money to have her trained. Captain Price said it was not worth
fighting the battle with Major McGuffey so he complied.” (Doc. 19-18 at PageID 790.)
What changed between Minnich’s 2016 investigation of the Durham complaint and his
massive 2017 investigation underlying McGuffey’s termination? Why was the same incident
revisited but this time cast in a very different light? Why did other hostile work environment
investigations require discriminatory animus, but McGuffey’s did not? These questions present
genuine issues of material fact relating to whether the stated reason for McGuffey’s termination
is pretextual.7 Accordingly, Defendants’ Motion to Dismiss and for Summary Judgment must be
denied as to McGuffey’s gender and sexual orientation discrimination claims.

7

Similarly, the 2017 IA report underlying McGuffey’s termination contains a bullet point summary of words she
used to officers substantiating the IA’s “hostile work environment” finding. (Doc. 19-18 at PageID 796–97.) Of the

18

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 19 of 24 PAGEID #: 12470

B. Retaliation Claims (Counts V and VI)
Federal and Ohio laws prohibit retaliating against employees who oppose unlawful
employment practices. See 42 U.S.C. § 2000e-3(a); Ohio Rev. Code § 4112.02; Braun v.
Ultimate Jetcharters, LLC, 828 F.3d 501, 510 (6th Cir. 2016).8 To establish a prima facie case of
retaliation, a plaintiff must demonstrate that: (1) she engaged in protected activity (i.e.,
communicated opposition to discriminatory employment practices); (2) defendants were aware
of the protected activity; (3) after she engaged in protected activity, her employer took an
employment action adverse to her; and (4) the protected activity caused the adverse action.
Crawford v. Chipotle Mexican Grill, Inc., 773 F. App’x 822, 826–27 (6th Cir. 2019); Yazdian v.
ConMed Endoscopic Tech., Inc., 793 F.3d 634, 649 (6th Cir. 2015). “The burden of establishing
a prima facie case in a retaliation action is not onerous,” and is “easily met.” Crawford, 773 F.
App’x at 827 (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)).
Once a plaintiff establishes a prima facie case, the burden shifts to defendants to provide
evidence of a “legitimate, nondiscriminatory reason” for the adverse employment action. Id.
(quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006)). The plaintiff then
must offer evidence from which a reasonable juror could conclude that the proffered reason is
pretext for unlawful retaliation. Id.
Defendants contend that McGuffey cannot establish that she engaged in protected activity
or that the protected activity caused the adverse employment action. (Doc. 78 at PageID 11720–

eight points listed, one of them (“You don’t deserve to wear the badge”) was also cited in the 2016 IA investigation
dismissing Durham’s complaint as unfounded. (Doc. 99-1 at PageID 1211.) A second quotes McGuffey as saying,
“You should be charged with a crime” related to the Mize case. (Doc. 19-18 at PageID 796.) A grand jury has, in
fact, indicted Jason Mize on a criminal charge related to that incident. See United States v. Mize, Case No. 1:18-cr74 (S.D. Ohio).
8
The same analysis governs retaliation claims pursuant to federal and Ohio statutes. Crawford v. Chipotle Mexican
Grill, Inc., 773 F. App’x 822, 827 n.2 (6th Cir. 2019). Thus, this Court will analyze McGuffey’s state and federal
retaliation claims together.

19

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 20 of 24 PAGEID #: 12471

11722; Doc. 102 at PageID 12403–12405.) The Court concludes that she has offered enough
evidence to present these issues to a factfinder.
McGuffey complained to Neil and Schoonover that certain male subordinates treated her
disrespectfully. (Doc. 74 at PageID 9007–9019.) According to McGuffey, Schoonover and Neil
discouraged her from disciplining them, with Sheriff Neil indicating, “you just have to put up
with it because they don’t like working for a woman.” (Id. at PageID 9013.) She alleges that her
complaints “would be summarily dismissed.” (Id.) Specifically, “that was typically how [Neil]
would end the conversation, just know that they don’t like working for a woman.” (Id.)
While this evidence is certainly not overwhelming, a juror can consider both the context
of the alleged complaint and the response to it to infer that she was protesting discrimination.
See Crawford, 773 F. App’x at 827. “The governing principle from our caselaw is not that
magic words must be intoned but that the language used be enough, in a specific factual context,
to convey the accusation and its basis.” Id. at 829. Because McGuffey testified that this
conversation occurred more than once and because Neil allegedly responded based on gender,9 a
jury must determine whether the complaints constitute protected activity. As to causation, the
Court detailed above—in discussing pretext—the evidence that McGuffey was treated differently
than others who did not exercise Title VII rights. Accordingly, genuine issues of material fact
preclude granting summary judgment in favor of Defendants, and their motion must be denied as
to Plaintiff’s retaliation claims.
C. Public Policy Claim (Count VII)
Ohio law recognizes a public policy exception to the general employment-at-will
doctrine, commonly called a “Greeley claim.” Himmel v. Ford Motor Co., 342 F.3d 593, 598–

9

Neil testified that he does not recall doing so and doubts that he would have responded in this way. (Doc. 19 at
PageID 155.)

20

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 21 of 24 PAGEID #: 12472

599 (6th Cir. 2003) (referring to Greeley v. Miami Valley Maint. Contractors, Inc., 49 Ohio St.3d
228, 551 N.E.2d 981 (1990), overruled in part by Tulloh v. Goodyear Atomic Corp., 62 Ohio
St.3d 541, 584 N.E.2d 729 (1992)). To establish a Greeley claim for termination in violation of
public policy, a plaintiff must demonstrate:
(1) “a clear public policy existed and was manifested in a state or
federal constitution, statute or administrative regulation, or in the
common law (the clarity element)”; (2) dismissal “under
circumstances like those involved in the plaintiff’s dismissal would
jeopardize the public policy (the jeopardy element)”; (3) “the
plaintiff’s dismissal was motivated by conduct related to the public
policy (the causation element)”; and (4) lack of an “overriding
legitimate business justification for the dismissal (the overriding
justification element).” Collins v. Rizkana, 73 Ohio St.3d 65, 69–70,
652 N.E.2d 653 (1995) (emphases omitted). The first and second
elements are questions of law for the court to decide, but the jury
decides questions of fact relating to the latter two elements. Id. at
70, 652 N.E.2d 653.
Hale v. Mercy Health Partners, 617 F. App’x 395, 402 (6th Cir. 2015).
In the case at bar, Defendants contend that McGuffey cannot establish the jeopardy
element required to survive summary judgment. (Doc. 78 at PageID 11723; Doc. 102 at PageID
12406.) In the Sixth Circuit, courts apply a three-factor analysis to evaluate the jeopardy
element:
(1) [D]etermine “what kind of conduct is necessary to further the
public policy” at issue; (2) decide whether the employee’s actual
conduct fell within the scope of conduct protected by this policy;
and (3) consider whether employees would be discouraged from
engaging in similar future conduct by the threat of dismissal.
Himmel v. Ford Motor Co., 342 F.3d 593, 599 (6th Cir. 2003)
(citation omitted). A plaintiff need not “be certain that the seemingly
inappropriate conduct is actually illegal” for his actions to fall within
the scope of conduct protected by this policy. Id. at 600. “Rather, an
employee simply must have had a ‘good faith belief that [his]
complaint was valid’ at the time of his complaint.” Id. (alteration in
original) (quoting Kulch v. Structural Fibers, Inc., 78 Ohio St.3d
134, 677 N.E.2d 308, 324 (1997)).

21

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 22 of 24 PAGEID #: 12473

Bender v. Champlain Enterprises, LLC, 797 F. App’x 1008, 1014 (6th Cir. 2020).
McGuffey complained that “use-of-force is out of control,” and she “felt like people were
guilty of excessive force more than” IA investigators did. (Doc. 46 at PageID 4972.) McGuffey
took those complaints to Neil and Schoonover—the supervisors who ultimately terminated her
employment. (Doc. 19 at PageID 142–147; Schoonover Dep., Doc. 23 at PageID 1521–1523.)
Conversely, Rarrick complained to Schoonover and Neil “several” times that McGuffey did not
understand proper use of force guidelines and should not involve herself in IA’s excessive force
investigations. (Doc. 46 at PageID 4937; Doc. 23 at PageID 1521–1522, 1528.) According to
Neil, McGuffey’s disagreement with IA’s use-of-force conclusions “cost the county $90,000 in a
lawsuit filed against us on a use-of-force matter because [McGuffey] didn’t follow the Graham
Factors.”10 (Doc. 19 at PageID 136, 139–40.) According to Neil, “her heart was there,
absolutely,” but “she got out of her lane.” (Id. at PageID 137, 139.)
The parties agree that the Constitutions of the United States and Ohio establish a public
policy prohibiting excessive use of force by law enforcement personnel. Applying the threefactor analysis, McGuffey’s complaints that IA permitted HCSO employees to use excessive
force without punishment fell within the scope of conduct necessary to further the public policy
prohibiting excessive force. In addition, if a high-ranking fiduciary employee could be
terminated for calling out alleged excessive force, the threat of termination would discourage
other employees from similarly opposing excessive use of force within the Jail. Thus, viewing
all evidence in McGuffey’s favor—as the Court must in evaluating a motion for summary
judgment—genuine issues of fact preclude a finding that she has failed to establish the jeopardy
element.

10

“Graham factors” refers to a United States Supreme Court case evaluating constitutionally excessive force,
Graham v. Connor, 490 U.S. 386 (1989).

22

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 23 of 24 PAGEID #: 12474

Defendants contend that McGuffey did not understand the law relating to
unconstitutional use of force and that her complaints that IA allowed excessive use of force to go
unpunished are simply mistaken. Defendants may well be correct. However, the conduct about
which McGuffey complained need not actually be illegal to serve as the basis for a Greeley claim
if McGuffey had a good faith belief that her complaint was valid when she made it. See Bender,
797 F. App’x at 1014. Even Defendants do not allege that McGuffey’s complaints were not
made in good faith.
Defendants next contend that McGuffey failed to provide “clear notice” to Neil or
Schoonover that she was acting to protect public policy. “In addition to making a good-faith
complaint, . . . an employee must also ‘give the employer clear notice that the employee’s
complaint is connected to a governmental policy. . . [such that] a reasonable employer would
understand that the employee relies on the policy as the basis for his complaint.’” Bender, 797 F.
App’x at 1014 (quoting Jermer v. Siemens Energy & Automation, Inc., 395 F.3d 655, 656 (6th
Cir. 2005)).
As explained above, Neil referenced McGuffey’s alleged misunderstanding of the
“Graham factors” in discussing her complaints about excessive force and IA’s investigations into
specific use-of-force incidents. The Graham factors are those used to evaluate whether force
rises to an unconstitutional level. Graham v. Connor, 490 U.S. 386 (1989). Therefore, the fact
that Neil and others reference those factors in discussing McGuffey’s complaints about excessive
force create genuine issues of material fact concerning whether McGuffey provided clear notice
that she was acting to protect the public policy prohibiting excessive use of force.

23

Case: 1:18-cv-00322-SJD Doc #: 104 Filed: 07/29/20 Page: 24 of 24 PAGEID #: 12475

IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss and for Summary

Judgment (Doc. 78) is DENIED. The Court will conduct a Final Pretrial Conference in this
matter on November 9, 2020 at 10:00 a.m. with trial to commence on December 7, 2020 at
9:30 a.m.
IT IS SO ORDERED.
Dated: July 29, 2020

S/Susan J. Dlott____________________
Judge Susan J. Dlott
United States District Court

24