Coleman v. The Ohio State University Medical Center
Filing
41
ORDER granting 33 Defendant's Motion for Summary Judgment. Signed by Judge Gregory L Frost on 8/28/12. (sem1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEBORAH L. COLEMAN,
Plaintiff,
Case No. 2:11-cv-0049
JUDGE GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers
v.
THE OHIO STATE UNIVERSITY
MEDICAL CENTER,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant The Ohio State University Medical Center’s
Motion for Summary Judgment (ECF No. 33), Plaintiff Deborah L. Coleman’s Memorandum
Contra (ECF No. 36), and Defendant’s Reply in Support (ECF No. 40). For the reasons set forth
below, Defendant’s Motion is GRANTED and judgment shall be entered in Defendant’s favor.
I. Background
Plaintiff Coleman worked as a nurse at The Ohio State University Medical Center
(“Medical Center”) for more than 20 years until her employment was terminated in April 2010.
At the time of her termination, Plaintiff was employed as a Registered Staff Nurse in the Medical
Center’s Medical-Surgical unit.
In January 2008, Kimberly Weirick, another Medical Center employee, became
Plaintiff’s supervising nurse. Under Weirick’s supervision, Plaintiff alleges that she was subject
to consistent verbal harassment, belittling, and unjustified disciplinary action. According to
Plaintiff, this treatment included the refusal to allow her to request days off work, an action
Plaintiff alleges was contrary to the Medical Center’s policy. Plaintiff claims that she
complained of this mistreatment in 2008 to another nurse manager, Katy Huth, and specifically
complained of “unfair practices, racism, retaliation, and [Plaintiff’s] workload.” (Coleman Aff. ¶
8, ECF No. 36-1.) Plaintiff also complained of “discrimination, retaliation, harassment and
unfair treatment” during an August 19, 2009 corrective action hearing, which was convened after
Weirick formally requested disciplinary action against Plaintiff for unsatisfactory performance
related to patient care. (Id. at ¶ 19; Weirick Aff. ¶ 21 and Exh. N, ECF No. 33-1.) Plaintiff
complained yet again of discrimination, specifically age and race discrimination, in a written
complaint submitted to The Ohio State University’s Office of Human Resources on October 31,
2009. (Coleman Aff. ¶ 10 and Exh. A-1, ECF No. 36-1.) Plaintiff contends that nothing was
done in response to her complaints of discrimination. (Id. at ¶¶ 10, 19.)
In response to what she perceived as ongoing workplace mistreatment, Plaintiff filed
three charges with the Ohio Civil Rights Commission (“OCRC”), each of which was also dual
filed with the federal Equal Employment Opportunity Commission (“EEOC”).1 In the first
charge of discrimination, filed on December 9, 2009, Plaintiff alleged that the Medical Center
1
One federal court in Ohio has summarized the procedure for “dual filing” in the OCRC
and EEOC as follows:
[I]n the State of Ohio, all administrative charges of this type of employment
discrimination are “dual filed.” That means that, if a complainant files a charge of
employment discrimination in the OCRC, the OCRC automatically forwards a copy
of the charge to the EEOC which, in turn, opens up a file and gives the charge an
EEOC number. However, the EEOC allows the OCRC to conduct the investigation.
. . . Thus, the EEOC charge is identical to the OCRC charge.
Ross v. ITT Cleveland Motion Control, No. 1:09-cv-2220, 2010 U.S. Dist. LEXIS 18651, at *8*9 (N.D. Ohio Mar. 2, 2010). Similarly, in this case, it appears from the record that Plaintiff’s
OCRC charges were dual-filed with the EEOC and that the OCRC was the agency tasked with
investigating the charges. (Letters of Determination, ECF No. 5-1, Exhs. 4-6.)
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discriminated against her on the basis of her age. Her allegations of discrimination were as
follows:
1.
I am over forty years old. I have been employed by the Respondent
[Medical Center] since May 1987, most recently as a Registered
Nurse. I have been harassed and disciplined by the Respondent.
2.
Between June 9, 2009 and August 15, 2009, Manager Kim Weirick,
over forty years old, harassed and disciplined me.
3.
I believe that I was harassed and disciplined because of my age, over
forty because:
a.
Kim Weirick continually verbally reprimanded me for
performance issues, that were actually initiated by co-workers
under the age of forty
b.
On or about July 1, 2009, Kim Weirick removed me from the
position of Charge Nurse for no reason, and replaced me with
an employee under forty years of age.
(OCRC Charge, ECF Nos. 5-1 and 34-6.) Nowhere in the charge did Plaintiff refer to race
discrimination or to complaints of race discrimination that she previously made to her employer.
On April 1, 2010, Plaintiff filed another charge of discrimination with the OCRC and
EEOC. Plaintiff filed this charge just a few weeks after the Medical Center placed her on
administrative leave. Plaintiff only checked the boxes for “Age” and “Retaliation” as the bases
upon which she alleged the Medical Center to have discriminated against her. (OCRC Charge,
ECF Nos. 5-1 and 34-7.) As the acts of discrimination allegedly perpetrated by the Medical
Center, Plaintiff alleged the following in her April 1, 2010 charge:
1.
I am age 58 and filed a complaint in December 2009. I have been
employed by the above-named Respondent since May 1987, most
recently in the position of Registered Nurse (RN.) [sic] On March 16,
2010, I was placed on administrative leave.
2.
On March 16, 2010, Kim Weirick, age 48, non-grievant, Nurse
Manager, informed me I was on administrative leave pending the
outcome of an investigation.
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3.
I believe I was placed on administrative leave due to consideration of
my age, 58, and in retaliation for engaging in protected activity
because:
a.
Respondent questioned my documentation. Prior to my filing
a charge in December 2009, my documentation had not been
an issue.
(Id.) Like the previous December 2009 charge, Plaintiff’s April 1, 2010 charge of discrimination
did not allege that the Medical Center discriminated against her on the basis of race. Nor did the
charge allege that the Medical Center retaliated against Plaintiff for any complaints of race
discrimination she made. As to both the December 2009 and April 2010 charges, the OCRC
investigated and dismissed both, determining that there was no probable cause to believe that the
Medical Center had unlawfully discriminated against Plaintiff. (Letters of Determination, ECF
No. 5-1 at 17-20.)
The Medical Center terminated Plaintiff’s employment in April 2010 after a series of
documented issues with Plaintiff’s work performance. Immediately following her termination,
Plaintiff filed a third complaint with the OCRC, again alleging unlawful discrimination.
Plaintiff’s April 14, 2010 charge identified her termination as the discriminatory act and checked
the box labeled “Retaliation” as the basis upon which she alleged the Medical Center
discriminated against her. (OCRC Charge, ECF Nos. 5-1 and 34-8.) Plaintiff elaborated on the
Medical Center’s alleged discriminatory acts as follows:
1.
I previously filed a civil rights complaint with the OCRC. I have
been employed by the Respondent as of May 1987, most recently as
a Registered Nurse. I was terminated.
2.
On April 5, 2010, I was notified in the mail by Tom Ramey, Director
of Human Resources, that I was terminated for unsatisfactory
services, as of April 14, 2010.
3.
I believe that I was terminated in retaliation for filing OCRC claim
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number COL A1 (37453) on April 1, 2010 because
a.
On or about February 23, 2010, I was advised by Nurse
Manager Kim Weirick, that my job performance was
satisfactory.
b.
I had not worked since March 15, 2010, since being placed on
administrative leave pending an investigation for my work
performance.
c.
Since filing my April 1, 2010 complaint, the Respondent sent
me a termination notice on April 5, 2010, stating that my job
performance was substandard.
(Id.) Just as in her previous two charges filed with the OCRC, Plaintiff did not allege that the
Medical Center discriminated against her on the basis of her race. The April 14, 2010 charge
merely referred back to the charge she had filed on April 1, 2010, and alleged “retaliation” for
having filed that “complaint.” (Id.) After an investigation, the OCRC dismissed the April 14,
2010 charge, finding no probable cause to believe that the Medical Center engaged in unlawful
discrimination. (Letter of Determination, ECF No. 5-1, at 21.)
Plaintiff filed this lawsuit on January 13, 2011. In her Complaint, Plaintiff alleged four
claims for relief — (1) age discrimination under the Age Discrimination in Employment Act of
1967 (“ADEA”) (29 U.S.C. § 621 et seq.) and Ohio Rev. Code § 4101.17 et seq.; (2) racial
discrimination, harassment, and retaliation under Title VII of the Civil Rights Act of 1964 (42
U.S.C. § 2000e et seq.), 42 U.S.C. § 1981, and Ohio Rev. Code § 4112.02 ; (3) state-law claims
for wrongful discharge, breach of implied contract, and promissory estoppel; and (4) a state-law
claim for intentional infliction of emotional distress. (Compl. 8-12, ECF No. 2.) The Medical
Center moved to dismiss all of Plaintiff’s state law claims, federal race discrimination claims
filed under Title VII and 42 U.S.C. § 1981, and age discrimination claims filed under the ADEA.
(Def.’s Mot. To Dismiss, ECF No. 5.) The Medical Center argued that this Court could not
exercise jurisdiction over Plaintiff’s Title VII race discrimination claims because of Plaintiff’s
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failure to exhaust her administrative remedies. In addition, the Medical Center argued that
Plaintiff’s remaining claims were precluded as a matter of law because of the Medical Center’s
immunity under the Eleventh Amendment to the United States Constitution. (Id.) Defendant did
not explicitly move to dismiss Plaintiff’s Title VII retaliation claims.
In response to the Medical Center’s Motion to Dismiss, Plaintiff conceded the absence of
this Court’s jurisdiction over her Section 1981, ADEA, and state-law claims on Eleventh
Amendment immunity grounds and moved to voluntarily dismiss those claims from the case
(which this Court construed as a motion to amend the complaint to drop these claims). (Opinion
and Order 5-7, ECF No. 19.) Plaintiff opposed, however, the motion to dismiss her race
discrimination claims brought under Title VII. This Court granted the Medical Center’s motion
to dismiss the Title VII race discrimination claims and granted Plaintiff’s motion to amend her
Complaint to remove her Section 1981, ADEA, and state-law claims. (Id. at 7, 14.)
The Court’s ruling left only Plaintiff’s Title VII retaliation claim left for adjudication.
On that claim, the Medical Center now seeks summary judgment in its favor.
II.
Discussion
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party
who has the burden of proof at trial fails to make a showing sufficient to establish the existence
of an element that is essential to that party’s case. See Muncie Power Prods., Inc. v. United
Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
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In viewing the evidence, the Court must draw all reasonable inferences in favor of the
nonmoving party, which must set forth specific facts showing that there is a genuine issue of
material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)); see also Hamad v. Woodcrest Condo.
Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Muncie, 328 F.3d
at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986)). Consequently, the central issue is “‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 25152).
A.
Title VII Retaliation
After this Court’s earlier Order and Opinion dismissing various claims from this lawsuit,
Plaintiff concedes that her “retaliation” claim is the only one the remains for adjudication. (Pl.’s
Memo. Contra 1, ECF No. 36.) More specifically, Plaintiff alleges a “retaliation” claim under
Title VII, based on a theory of race discrimination. (Id. at 9-10; see also Compl. 10, ECF No. 2.)
Under Title VII’s anti-retaliation provision, an employee is protected against employer
retaliation for opposing any practice that the employee reasonably believes to be a violation of
Title VII. Johnson v. University of Cincinnati, 215 F.3d 561, 578-79 (6th Cir. 2000).
Specifically, the statute makes it “an unlawful employment practice for an employer to
discriminate against any of his employees … because he has opposed any practice made an
unlawful employment practice by this subchapter [42 U.S.C. §§ 2000e-2000e-17], or because he
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has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter [42 U.S.C. §§ 2000e-2000e-17].” 42 U.S.C. §
2000e-3(a).
The Medical Center argues that the Court need not even reach the merits of Plaintiff’s
Title VII retaliation claim because she has failed to exhaust her administrative remedies with
regard to any Title VII claim. (Def.’s Mot. Summ. J. 17, ECF No. 33.) Indeed, filing an
administrative charge of discrimination with the EEOC is a necessary prerequisite to bringing a
Title VII claim before the federal courts. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361
(citing 42 U.S.C. § 2000e-5(e)(1)). And in this Court’s Opinion and Order dismissing various
claims alleged in the Complaint, this Court found that Plaintiff’s Title VII race discrimination
claims were barred by her failure to allege race discrimination in any of her three charges of
discrimination filed with the OCRC and EEOC. (Opinion and Order 9-14, ECF No. 19.) The
Medical Center argues that this Court’s reasoning in its earlier Opinion and Order applies with
equal force to Plaintiff’s remaining claim for Title VII retaliation and that such claim is also
barred by Plaintiff’s failure to file an appropriate charge of Title VII retaliation with the OCRC
or EEOC. The Court agrees with the Medical Center.
In the case of Title VII retaliation, the Sixth Circuit has held that “retaliation claims
based on conduct that occurred before the filing of the EEOC charge must be included in that
charge,” lest such claims be barred by the failure to exhaust the mandatory administrative
remedy provided by statute. Strouss v. Mich. Dep’t of Corr., 250 F.3d 336, 342 (6th Cir. 2001);
accord Abeita v. TransAm. Mailings, Inc., 159 F.3d 246, 254 (6th Cir. 1998); Ang v. Procter &
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Gamble Co., 932 F.2d 540, 547 (6th Cir. 1991).2 That said, courts must liberally construe EEOC
charges filed (as here) pro se by lay complainants. Id. at 546; see also Davis v. Sodexho,
Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998). Thus, courts will deem the
exhaustion requirement satisfied for allegations of discrimination that are not necessarily
covered on the face of the charge if an EEOC investigation of those allegations could have been
“reasonably expected to grow out of the charge of discrimination.” Ang at 545 (internal
quotations omitted). Therefore, “where facts related with respect to the charged claim would
prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from
bringing suit on that claim.” Davis, 157 F.3d at 463.
As this Court previously found, Plaintiff did not explicitly allege race discrimination in
any of her three charges filed with the OCRC. (Opinion and Order 10, ECF No. 19.) None of
the charges checked the box for “Race/Color” discrimination on the form provided. The first
charge filed on December 9, 2009 alleged only age discrimination in the form of discipline and
harassment; the second charge filed on April 1, 2010 again alleged age discrimination in the
form of discipline and also alleged “retaliation” for having filed her previous OCRC charge; and
the final charge filed on April 14, 2010 alleged “retaliation” for the Medical Center having
terminated her employment because she filed the April 1, 2010 OCRC charge. (OCRC Charges,
2
Retaliation claims are generally excepted from the exhaustion requirement when such
claims arise from acts taking place after the filing of the EEOC charge. Abeita at 254 (citing
Ang at 546-47). This exception to the exhaustion requirement does not apply, however, to
retaliation claims based on conduct that occurred before the administrative charge was filed. Id.
In this case, Plaintiff relies on alleged retaliatory conduct that occurred before the OCRC charges
in which she asserted retaliation.
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ECF Nos. 34-6, 34-7, and 34-8.) In every charge, in the section where Plaintiff was required to
include a “detailed statement of the facts that you believe indicate an unlawful discriminatory
practice,” Plaintiff referred to either age discrimination or to her belief that she was retaliated
against for having filed a previous OCRC charge. (Id.) In none of the three charges did Plaintiff
allege any act of race discrimination or even a belief that she was the victim of unlawful race
discrimination.
Although Plaintiff alleged “retaliation” in the last two of her three OCRC charges, this
fact does not automatically mean that she exhausted her administrative remedies with regard to
Title VII retaliation. Plaintiff’s April 1, 2010 and April 14, 2010 charges were quite specific in
what her theory of “retaliation” was. The April 1, 2010 charge expressly alleged Plaintiff’s
belief that she was placed on administrative leave “in retaliation” for having filed her December
2009 charge — a charge that alleged only age discrimination. (ECF Nos. 34-6 and 34-7.) Thus,
on its face, the April 1, 2010 charge alleged nothing more than retaliation under the ADEA.
Likewise, the April 14, 2010, charge was limited on its face to, at most, an ADEA retaliation
theory. The April 14, 2010 charge alleged that the Medical Center terminated Plaintiff’s
employment in retaliation for filing the April 1, 2010 charge. (ECF No 34-8.) Thus, in
substance, the April 14, 2010 charge effectively alleged a second instance of ADEA retaliation
— the charge referred back to a previous charge of retaliation, which, in turn, referred back to a
charge of age discrimination and nothing more.
Under Sixth Circuit precedent, it is not necessarily fatal to Plaintiff’s Title VII claim that
she did not explicitly mention Title VII retaliation in her OCRC charges of discrimination. But
in order for the Court to treat Plaintiff’s charges of “retaliation” as having covered a Title VII
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retaliation theory, the charges must, at a minimum, relate facts that “would prompt the EEOC to
investigate a different, uncharged claim.” Davis, 157 F.3d at 463; see also Younis, 610 F.3d at
362; Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380 (6th Cir. 2002). In this case,
however, Plaintiff did not do that. The facts set forth in Plaintiff’s charge explicitly limit her
allegation to that of age discrimination and, by extension, retaliation for having filed her charges
of age discrimination. With no allegations of race discrimination or retaliation based on Title VII
protected activity, there is nothing in the Plaintiff’s charges that would have reasonably
prompted the OCRC or EEOC to investigate claims of race discrimination. See Younis, 610 F.3d
at 363 (finding plaintiff’s retaliation claim barred by failure to exhaust when his EEOC charge
alleged only discrimination on basis of religion and national origin); Abeita, 159 F.3d at 254
(holding that district court did not have jurisdiction to hear plaintiff’s retaliation claim where
plaintiff did not check the retaliation box or describe anything that indicates such a claim in the
EEOC complaint); Young v. DaimlerChrysler Group, 52 F. App’x 637, 640 (6th Cir. 2002)
(finding plaintiff’s claim properly limited in scope to only age discrimination when plaintiff did
not assert race discrimination in the EEOC charge). Nor has Plaintiff pointed the Court to a part
of the record showing that the OCRC or EEOC actually investigated Title VII retaliation in
connection with her charges. See Davis, 157 F.3d at 463 (noting that exhaustion requirement
could be satisfied, despite claim being uncharged, “[w]hen the EEOC investigation of one charge
in fact reveals evidence of a different type of discrimination against the plaintiff”).
In this case, the record does not reveal the presence of an exception that would obviate
the need for Plaintiff to have presented her claim of Title VII retaliation in an OCRC/EEOC
charge. The Court finds that the Medical Center has demonstrated the absence of a genuine
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issue of material fact on the question of whether Plaintiff exhausted her administrative remedies
with respect to a Title VII retaliation claim. In her memorandum contra the Medical Center’s
motion for summary judgment, Plaintiff’s arguments are long on the merits of her retaliation
theory, but offer nothing in response to the Medical Center’s threshold argument that Plaintiff
has failed to exhaust her administrative remedies as required by Title VII. Accordingly, the
Medical Center is entitled to summary judgment on Plaintiff’s Title VII retaliation claim.
B.
ADEA Retaliation
Plaintiff’s memorandum contra to the Medical Center’s motion for summary judgment,
focuses on a Title VII retaliation theory of liability. But to the extent Plaintiff’s opposition to
summary judgment can be construed to assert a claim for ADEA retaliation, Plaintiff still cannot
escape summary judgment. Even though Plaintiff preserved in her OCRC charges a claim for
ADEA retaliation by referencing age discrimination, this Court dismissed, on Plaintiff’s Motion,
all claims based on the ADEA. (Opinion and Order 5-7, ECF No. 19.) In any event, the Medical
Center is immune from ADEA liability under the Eleventh Amendment. See Latham v. Office of
the Attorney Gen., 395 F.3d 261, 270 (6th Cir. 2005).
III. Conclusion
Defendant Medical Center raises additional arguments as to why Plaintiff cannot create a
genuine issue of material fact for trial on her purported claim for Title VII retaliation. But in
light of this Court’s conclusion that Plaintiff failed to exhaust her administrative remedies, this
Court has no occasion to reach these arguments. Having failed to satisfy the exhaustion
requirement of Title VII, Plaintiff cannot proceed to the merits of her Title VII retaliation claim.
For the reasons set forth in this Opinion and Order, Defendant’s Motion for Summary
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Judgment is GRANTED. The Clerk is DIRECTED to ENTER JUDGMENT in favor of
Defendant.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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