Gainor v. Worthington City School District et al

Filing 31

ORDER granting 24 Motion for Summary Judgment. This case is DISMISSED. Signed by Judge Algenon L. Marbley on 12/13/2013. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELLY GAINOR,
Plaintiff,
v.
WORTHINGTON CITY
SCHOOLS, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:

Case No. 2:11-CV-561
JUDGE ALGENON L. MARBLEY
Magistrate Judge Abel

OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on the Defendants’ Motion for Summary Judgment.
Plaintiff, through her Complaint and Response in Opposition, brings the claims of Retaliatory
Conduct pursuant to the ADA, the Rehabilitation Act, the IDEA, O.R.C. § 4112 “and other Ohio
and Federal common and statutory law,” and Intentional Infliction of Emotional Distress. For
the reasons set forth herein, Defendants’ motion is GRANTED.
II. BACKGROUND
A. Factual Background
Kelly Gainor (“Gainor” or “Plaintiff”) brings this action against Worthington City
Schools and Worthington School District Human Resources Director, Jeanne Paliotto
(“Paliotto”), (collectively “Defendants”) for alleged violations of the Americans with Disabilities
Act, the Rehabilitation Act, and the Ohio Revised Code, as well as for intentional infliction of
emotional distress, stemming from Gainor’s employment in the Worthington School District
(“WSD” or the “District”).

1 

Gainor began working in the District in 2003. After working in the food service
department for one year, Gainor moved into a position as a teaching assistant at Bluffsview
Elementary School, where she remained until 2008. During the 2007-2008 school year, Gainor,
whose autistic son is a student in the District, became increasingly concerned about her son’s
Individual Education Program (“IEP”). On April 22, 2008, Gainor filed the first of
approximately six complaints regarding her son’s IEP with the Ohio Department of Education
(“ODE”).1 Human Resources Assistant Teresa Gresh (“Gresh”), Paliotto’s assistant, was aware
of the filings, and provided the relevant paperwork to Paliotto.
Following a meeting with her son’s IEP team on October 20, 2008, Gainor filed another
complaint with the ODE on November 4, 2008. In response to Gainor’s complaints, and the
complaints of other parents similarly affected, the ODE conducted an audit and investigation of
the District. Paliotto was not involved in the investigation. The investigation resulted in
corrective action through relevant District training.
At the beginning of the 2008-2009 school year, Gainor started a new job as a special
education assistant at Worthington Kilbourne High School (“WKHS”). This was a position for
which Gainor applied, interviewed, and subsequently accepted, with the knowledge that it
involved a Behavior Learning Center (“BLC”).2 At WKHS, Gainor reported to Assistant
Principal Ken Nally (“Nally”). Nally was aware that Gainor had two sons in the school district,
but did not, as Plaintiff alleges, know about her son’s autism.3 As early as one week into

1

When asked about the number of complaints filed with the ODE regarding her son’s IEP, Gainor replied, “At the
time there might have been tow, there might have been more…I’m not sure. I’ve filed numerous…. I think I may
have filed six, five or six.” (Gainor Dep., Doc. 18 at 224-25).
2
Based on the information provided by the parties, it seems that a BLC encompasses students with various levels of
behavioral issues, ranging from mild to more aggressive behaviors such as hitting, biting, etc.
3
In his deposition, Nally first stated that Gainor told him that her son was autistic during her interview for the
WKHS position, but immediately backtracks, stating, “I know that she did have experience with special education in
her work history, and I don’t know whether she said that her son had autism or not. I can’t recall.” (Nally Dep.,
Doc. 19-12 at 75).  

2 

Gainor’s employment at WKHS, Nally was made aware of the ODE filing by the Department
Chair for Special Education, Ellen Clark (“Clark”). According to Nally, Clark was particularly
nervous about the data sheets Gainor was keeping for the intervention specialists in the
department to collect behavioral information. Nally also spoke with the Director of Special
Education, Lynne Hamelberg, regarding Gainor’s ODE filings and related actions.
During that school year, Nally disciplined Gainor for various issues. Nally asked Gainor
not to speak to a specific parent during the school hours. Gainor alleges that Nally asked her not
to speak to parents of special education students, in general, while Nally contends that his
request was limited to the particular parent involved in the relevant discussion with Gainor. In
addition, Nally, per Gainor’s request,4 investigated the claim that WKHS had directed students to
monitor Gainor and to report on her behavior. On January 13, 2009, Gainor got into an
altercation with one of her students, allegedly calling her a “fucking retard,” and telling her to
“drop out of school.” Following an investigation, Nally decided that Gainor had not called the
student a “fucking retard,” and that Gainor’s comment telling the student to drop out of school
was taken out of context.
On February 12, 2009, the District conducted a disciplinary hearing with Gainor, which
covered the following charges: 1) leaving work on January 15, 2009 at 12:30 p.m. without
reporting off to her supervisor; 2) failing to perform her functions as a special education assistant
due to Gainor’s use of the classroom computer for personal matters; and 3) concern about
Gainor’s professional conduct, interaction with students, and choice of language. On February
18, 2009, Gainor filed a harassment complaint with the District, stating that any and all

4

Nally’s deposition states that during one of her disciplinary hearings, Gainor asked that it be investigated, but later
Nally does not clarify when counsel asks about his conversation with Paliotto regarding that investigation. (Nally
Dep. at 9, 70). It may be the case that Paliotto directed the first investigation, and Gainor, during her disciplinary
hearing, asked that the specific students be interviewed.

3 

disciplinary actions taken against her were the result of retaliation for her ODE filings, speaking
with local newspapers about her experience in the District, documenting incidents through the
data sheets, and advocating for her son. On March 3, 2009, Gainor received a letter from
Paliotto, stating that as a result of the disciplinary hearing, Gainor would be suspended for one
day.
On May 13, 2009, the District held a meeting with Gainor for the purpose of talking
about her concerns and clarifying the District’s expectations. On September 17 2009,5 the
District conducted another disciplinary hearing, this time in regard to allegations of Gainor’s
insubordination and failure to follow work rules and procedures. As a result of this disciplinary
hearing, Gainor was suspended without pay on October 12 and 13, 2009. On October 6, 2009,
the same day she received a letter from Paliotto with the disciplinary hearing’s outcome, Gainor
filed a complaint with the Ohio Civil Rights Commission (“OCRC”), checking the boxes marked
disability, retaliation, and reasonable accommodation.
At the beginning of the 2009-2010 school year, the District transferred Gainor to Granby
Elementary school to work in another BLC. Gainor’s new position required the same hours and
provided the same pay as her job at WKHS. Gainor believed that working in another BLC
would be problematic,6 and told Gresh that she could not accept the new position. Paliotto
subsequently offered Gainor a position at Worthington Kilbourne Middle School (“WKMS”) as
an intervention specialist, working at the same pay rate for seven hours a day, which Gainor
accepted. Following three instances of tardiness without notification, the District held a
disciplinary hearing with Gainor, resulting in a letter of direction clarifying work rules and
procedures.

5

This hearing was originally scheduled for July 6, 2009.
Gainor originally did not want the position because of her alleged disability, but has since dropped the claim. This
is discussed further in section IV. 

6

4 

In May 2010, Gainor received notice that, due to budget cuts, lack of funds, and lower
enrollment, her job might be in jeopardy. The District maintained that they would notify her of
any changes pursuant to the “bumping rights” in her Collective Bargaining Agreement. On June
15, 2010, Gainor received notice that her position had, in fact, been eliminated, and that
effective June 30, 2010, she was reassigned to the position of intervention specialist at
Worthingway Middle School (“WMS”) for the 2010-2011 school year.7 Her new position
provided the same pay rate, but was six hours per day rather than seven. Gainor did not file any
grievance in response to her new position. It is undisputed that such a position change is within
the right of the District.
In June 2010, Gainor applied and interviewed for an instructional assistant position and
an intervention assistant position. In November 2010, she applied and interviewed for another
instructional assistant position. In March 2011, Gainor applied for two different summer school
positions, a pre-school position and a special education assistant. Though Gainor applied late,
Gresh processed her application. She did not receive either position, and is currently employed
at WMS as an intervention specialist.
B. Procedural History
Plaintiff filed this action on June 27, 2011, asserting the following claims against
Defendants: (I) Disability Discrimination pursuant to the Americans with Disabilities Act
(“ADA”), O.R.C. § 4112, and the Rehabilitation Act of 1973 (“RHA”); (II) Retaliatory Conduct
pursuant to the ADA, the RHA, O.R.C. § 4112 “and other Ohio and Federal common and
statutory law”; and (III) Intentional Infliction of Emotional Distress. (Compl., Doc. 1, 4-8.)

7

Though none of the relevant documents say so, it seems that the intervention specialist position was a BLC
position, which is why Gainor continued to look for other employment opportunities after receiving that job.

5 

On December 28, 2012, Defendants moved for summary judgment on all claims. (Doc.
15.) In her responsive briefing, Plaintiff conceded that “it does not appear that she was the
victim of disability discrimination” and, therefore, stated that she does not oppose Defendants’
motion to dismiss Count I of her complaint. (Doc. 19 at 2.) Plaintiff does, however, oppose
Defendants’ motion with respect to Counts II and III of her complaint. In addition, Plaintiff
raised a new argument of retaliation under the Individuals with Disabilities Education Act
(“IDEA”). (Doc. 19 at 10-11).
Based on Plaintiff’s addition of the IDEA retaliation claim, Defendants requested leave to
file an amended motion for summary judgment, which the Court granted. (Doc. 20; Doc. 23).
On October 4, 2013, Defendants again moved for summary judgment on Counts II and III. (Doc.
24). Oral argument was held, and this matter is, therefore, ripe for review.

III. STANDARD OF REVIEW
Summary judgment is proper if there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of
that fact would establish one of the elements of a claim and would affect the application of
governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)).
A movant for summary judgment meets its initial burden “by ‘showing’ – that is,
pointing out to the district court – that there is an absence of evidence to support the nonmoving
party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir. 1991) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts
showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v.

6 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to
“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess
the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227,
230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir.
1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and
reasonable inferences must be viewed in the light most favorable to the party opposing the
motion. Pucci, 628 F.3d at 759 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)).
IV. LAW AND ANALYSIS
A. Disability Discrimination and Harassment (Count I)
In her response to Defendants’ original motion for summary judgment, as well as her
response to Defendants’ amended motion for summary judgment, Plaintiff concedes this count.
(Doc. 19 at 2; Doc. 25 at 2). Due to Plaintiff’s concession, Defendants argue that they are
entitled to summary judgment on this claim. (Doc. 24 at 9). This Court agrees. Therefore,
Defendant’s Motion for Summary Judgment on Count I is GRANTED.
B. Retaliation (Count II)
1. Exhaustion of Remedies under Federal Law
Defendants argue that Plaintiff failed to bring her claims under the ADA, Civil Rights
Act,8 and RHA within the proper two-year statute of limitations. (Doc. 24 at 10). In response,
Plaintiff states that she received her right-to-sue letter from the Equal Employment Opportunity

8

Defendants include the Civil Rights Act, which is not mentioned in Plaintiff’s Complaint, nor in her Response in
Opposition.

7 

Commission (“EEOC”) “relative to her retaliation claim” on April 6, 2011, and properly filed
suit within the applicable 90-day period. (Doc. 25 at 18). Plaintiff brings her claim of retaliation
under the ADA, RHA, and ORC § 4112.
Plaintiff does not specifically identify, however, under which title of the ADA she brings
her claim. The Court, therefore, must infer the Title she intends based on the statute of
limitations and exhaustion requirements she invokes. As this Court has previously recognized,
Title I, Title II, and Title III of the ADA each have different statutes of limitations. Bennett v.
Bd. of Educ. of Washington Cnty. Joint Vocational Sch. Dist., No. 08-CV-663, 2010 WL
3910364, at *3 (S.D. Ohio Oct. 4, 2010). A claim brought under Title II or Title III does not
have an administrative-exhaustion requirement, and courts have used relevant state law to
determine the proper statute of limitations for such claims. Id. (citing Bogovich v. Sandoval, 189
F. 3d 999, 1002 (9th Cir. 1999); McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138
(2d Cir. 2007)). Conversely, claims brought under Title I must meet an exhaustion requirement
before any relevant claims are brought to court.9 Id.
Exhaustion of administrative remedies requires that a plaintiff: “file an EEOC charge
within 180 days of the alleged unlawful employment practice or, if the plaintiff has instituted
proceedings with a state or local agency, within 300 days.10 Once the EEOC dismisses the
charge and issues a right-to-sue letter, the plaintiff has 90 days to file a civil action.” Williams v.
Nw. Airlines, Inc., 53 F. App'x 350, 352 (6th Cir. 2002) (citing 42 U.S.C. § 2000e-5; 42 U.S.C. §

9

In Bennett, this Court noted: “This administrative-exhaustion requirement is the result of Title I’s incorporation of
42 U.S.C. § 2000e—5, a provision of Title VII of the Civil Rights Act of 1964 which requires such administrative
exhaustion.” Bennett, 2010 WL 3910364 at *3.
10
The 300-day period starts to run when the employee “is aware or reasonably should be aware” of the allegedly
unlawful employment action. Hout v. City of Mansfield, 550 F. Supp. 2d 701, 718 (N.D. Ohio 2008) (citing Amini
v. Oberlin College, 259 F.3d 493, 498–99 (6th Cir.2001)).

8 

2000e-5(f)(1)); see also Granderson v. Univ. of Michigan, 211 F. App'x 398, 401 (6th Cir.
2006).
As noted, Plaintiff cites the 90-day period in which to bring her suit under federal law, a
requirement that is only mandated by Title I of the ADA. By implication, Plaintiff has
acknowledged that her claim is brought under Title I of the ADA; therefore, her claim requires
exhaustion. Similarly, the RHA requires exhaustion of administrative remedies: “Under section
1415(I) [of the IDEA], a plaintiff must exhaust applicable IDEA remedies as a prerequisite to
bringing a [RHA] claim, even where plaintiff has no intention of bringing an IDEA claim.” B.H.
v. Portage Pub. Sch. Bd. of Educ., No. 1:08-CV-293, 2009 WL 277051, at *3 (W.D. Mich. Feb.
2, 2009). Because exhaustion of administrative remedies is required for claims brought under
the ADA and the RHA, the Court will address them simultaneously.11
In order to determine if Plaintiff has met the exhaustion requirement, the relevant facts
must be applied to the exhaustion timeline. Gainor’s first disciplinary hearing took place on
February 12, 2009, and resulted in her March 3, 2009 one-day suspension without pay. On
September 17, 2009, the District held another disciplinary hearing with Gainor, which resulted in
her October 12 and 13, 2009 suspension without pay. Gainor filed her charge with the OCRC on
October 6, 2009, which allegedly resulted in a right-to-sue letter received on April 6, 2011.
Initially, it seems that Plaintiff may have validly exhausted her administrative remedies. She was
first disciplined on March 3, 2009, and filed her OCRC charge on October 6, 2009. Since she
instituted proceedings with the OCRC, a state agency, she had 300 days in which to file her
claim. Gainor filed her OCRC claim within 217 days of the March 3 suspension, thereby falling
within the 300-day time limit.

11

An analysis of Plaintiff’s claims brought under the IDEA is addressed on page 10, infra.

9 

Though Plaintiff met the first part of the exhaustion requirement, she did not meet the
right-to-sue letter requirement, as she has never produced the necessary letter. Plaintiff has had
at least three opportunities to file the proper right-to-sue letter: (1) upon filing of her Response in
Opposition (Doc. 19); (2) as part of the Motion for Leave to File EEOC Right to Sue Letter
(Doc. 27).; (3) and in the Supplemental Memorandum Supporting Motion for Leave to File
EEOC Right to Sue Letter (Doc. 29). Plaintiff filed a right-to-sue letter that is dated April 6,
2011, but, as Defendants accurately point out, the charge number listed on the October OCRC
charge and the charge number listed on the EEOC right-to-sue letter are not the same, nor does
Plaintiff give any indication that the charge numbers are related. (Doc. 25-4; Doc. 27-1).
Furthermore, even if the documents are directly related, the Court has no way of knowing, as
Plaintiff has failed to provide any documentary history linking the two forms. Thus, Plaintiff’s
failure to provide any evidence that her right-to-sue letter is related to the EEOC letter at issue
undermines her claim. She has not, therefore, discharged her burden to show that she exhausted
her administrative remedies. See Green v. Union Foundry Co., 281 F.3d 1229, 1234 (11th Cir.
2002).
Plaintiff also contends that she has exhausted her administrative remedies under the
IDEA, thereby validly bringing her claim before this Court, citing the complaints filed with the
ODE. (Doc. 25 at 19). Plaintiff states that the “ODE acknowledged and investigated those
complaints pursuant to the dictates of the IDEA, and that they reached a resolution to the
complaints.” (Id.). As referenced above, the IDEA requires plaintiffs to exhaust their
administrative remedies before bringing a federal suit.12 In Covington v. Knox County School

12

 The IDEA provides: “Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and
remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et
seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the

10 

System, the Sixth Circuit stated that, under the IDEA, plaintiffs exhaustion of remedies is
required in IDEA suits. 205 F.3d 912, 915 (6th Cir. 2000). The Court clarified that exhaustion
under the IDEA is usually, but not always required, particularly in cases where it would be futile
or inadequate to protect the plaintiff’s rights, or if the plaintiff was not given proper notice of his
or her procedural rights under the IDEA. Id. at 917. The Court in Horen v. Board of Eduation of
City of Toledo Public School District, found that the IDEA exhaustion requirement “applies
equally to a § 504 [RHA] claim.” 655 F. Supp. 2d 794, 802-03 (N.D. Ohio 2009) (internal
citations omitted). Furthermore, the Horen Court stated that exhaustion of remedies under the
IDEA applies to claims of retaliation. Id.
It is undisputed that Plaintiff filed complaints with the ODE, which contributed to the
audit and subsequent corrective action taken within the District. While the ODE complaints and
their ultimate resolution provide factual background to Gainor’s claim, they do not function in
the manner she argues. They in no way have an effect on the exhaustion of remedies, because
they did not occur within the relevant 300-day period following the discipline. Therefore,
Plaintiff’s IDEA exhaustion of remedies claim does not impact her claims under the ADA or
RHA, but serves instead as part of the factual basis on which her claims are brought.
Unlike the ADA, RHA, and the IDEA, ORC § 4112 does not have an exhaustion of
remedies requirement. Arnold v. City of Columbus, No. 2:08-CV-262, 2011 WL 1311892, at *10
(S.D. Ohio Mar. 31, 2011) (citing Harrison v. City of Akron, 43 F. App'x 903, 905 (6th
Cir.2002)). In addition, ORC § 4112 has a six-year statute of limitations for retaliation claims.
Greenleaf v. DTG Operations, Inc., No. 2:09-CV-192, 2011 WL 883022, at *6 (S.D. Ohio Mar.

rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is
also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same
extent as would be required had the action been brought under this subchapter.” 20 U.S.C.A. § 1415. See also
Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 915 (6th Cir. 2000). 

11 

11, 2011) (citing Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc., 70 Ohio St.3d 281, 638
N.E.2d 991, 992 (Ohio 1994)). Therefore, Plaintiff’s state law claim falls within the statute of
limitations under Ohio law.
a. Minority Tolling Statute
In a last ditch effort to save her claim, Plaintiff proffers that the relevant statute of
limitations was tolled under Ohio’s minority tolling statute. (Doc. 25 at 18-19). Though it is not
clearly stated, Plaintiff seems to allege that, even if her retaliation claim is barred by a two-year
statute of limitations under the ADA, Ohio’s minority tolling statute would make her claim
timely brought. There are, however, two critical issues with Plaintiff’s claim.
First, Plaintiff improperly applies a two-year statute of limitations to her Title I claim. As
noted in Sec. IV(B)(1), supra, a Title I claim under the ADA has a 300-day statute of limitations
when it is brought before a state or local agency. In assessing the applicability of state law
tolling statutes to federal claims, the Sixth Circuit has articulated: “[w]hen the statute of
limitations is borrowed from state law, so too are the state’s tolling provisions, except when they
are ‘inconsistent with the federal policy underlying the cause of action under consideration.’”
Bishop v. Children's Ctr. for Developmental Enrichment, 618 F.3d 533, 537 (6th Cir. 2010)
(quoting Bd. of Regents v. Tomanio, 446 U.S. 478, 485 (1980)). Due to the ADA’s incorporation
of Title VII’s statute of limitations, 42 U.S.C. § 2000e-5(e)(1), which set out the 180 day and 300
day statutes of limitation, an application of Ohio’s minority tolling statute would be improper.
Second, Plaintiff misapplies the tolling statute to her claim. Under Ohio’s minority
tolling statute, when “the minor plaintiff's claims are joint and inseparable with the claims of
other parties, they too can benefit from his disability and bring their claims within the statutory
12 

period after his disability ends.” Bishop v. Children's Ctr. for Developmental Enrichment, 618
F.3d 533, 537 (6th Cir. 2010). Courts have recognized a third-party’s claims under minority
tolling, but the claims must be joint and inseparable from the claims of the disabled party. Id. at
538 (quoting Fehrenbach v. O'Malley, 164 Ohio App.3d 80, 841 N.E.2d 350, 366 (2005)).
Plaintiff states that her claims are inseparable from her son’s, because he was not 18 years old at
the time this action was brought, thereby allowing her to benefit from a tolled statute of
limitations. Gainor’s minor son has never been a party to this action. Minority tolling is,
therefore, inapplicable to this case.
Because Plaintiff has failed to demonstrate that she met the exhaustion of remedies
required under the ADA and the RHA, Defendant’s Motion for Summary Judgment on Count II
is GRANTED.
2. McDonnell Douglas Framework
Even if Plaintiff had properly exhausted the administrative remedies under the ADA and
RHA, her retaliation claim would still fail. Plaintiff alleges that Defendants’ retaliated against
her based on advocacy on her behalf, and her son’s behalf, thereby violating her rights under the
ADA, § 12101 et seq., the RHA, 29 U.S.C. § 701 et seq., the IDEA, 20 U.S.C. § 1400, O.R.C. §
4112 “and other Ohio and Federal common and statutory law.” Based on the facts, it is clear that
Plaintiff does not meet the prima facie case for retaliation.
The framework applied in reviewing retaliation claims under the RHA and the ADA is
the familiar McDonnell Douglas burden-shifting framework. Gribcheck v. Runyon, 245 F.3d
547, 550 (6th Cir. 2001) (applying McDonnell Douglas to RHA retaliation claim); Barrett v.
Lucent Technologies, Inc., 36 F. App’x 835, 840 (6th Cir. June 6, 2002) (“Retaliation claims are
13 

treated the same whether brought under the ADA or Title VII.”) (citing Penny v. UPS, 128 F.3d
408, 415 (6th Cir. 1997)). Under McDonnell Douglas, a plaintiff must first make out a prima
facie case of discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 802). If she meets this
requirement, the burden shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its actions. Id. Finally, if the employer sustains this burden, the plaintiff “must point
out ‘evidence from which a jury could reasonably reject [Defendants’] explanation’” as
pretextual. Davis v. Cintas Corp., 717 F.3d 476 (6th Cir. 2013) (quoting Chen v. Dow Chem.
Co., 580 F.3d 394, 400 (6th Cir. 2009)). At the summary judgment stage, the district court must
determine whether there is “sufficient evidence to create a genuine dispute at each stage of the
McDonnell Douglas inquiry.” Macy v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 364 (6th
Cir. 2007) (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000)).
A prima facie case of retaliation under the RHA consists of four elements: “1) the
plaintiff engaged in legally protected activity; 2) the defendant knew about the plaintiff's exercise
of this right; 3) the defendant then took an employment action adverse to the plaintiff; and 4) the
protected activity and the adverse employment action are causally connected.” Gribcheck, 245
F.3d at 550 (Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.1987) (applying McDonnell Douglas to
Title VII retaliation claim)).
To state a prima facie case of retaliation under the ADA, a plaintiff must show that: “(1)
she engaged in protected activity, (2) defendant took an adverse employment action, and (3)
there was a causal connection between the protected activity and the adverse employment
action.” Barrett, 36 F. App’x at 841 (citing Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578
(6th Cir. 2000)). Notably, a plaintiff need not be actually disabled to assert a claim of disability

14 

retaliation, but rather “must have a reasonable and good faith belief that the opposed act or
practice is unlawful under the ADA.” Id. at 840 (citing Johnson, 215 F.3d at 579-580).
Except for the knowledge component under the RHA, necessary in RHA claims,
retaliation claims under the ADA and RHA are, effectively, identical: “The [ADA and RHA]
have a similar scope and aim; for purposes of retaliation analysis, cases construing either Act are
generally applicable to both.” A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697
(6th Cir. 2013) (citing Andrews v. Ohio, 104 F.3d 803, 806-07 (6th Cir. 1997)); see also
McCormick v. Miami University, 693 F.3d 654, 663-64 (6th Cir. 2012). Additionally, “[t]he
burden for establishing a retaliation claim under ORC § 4112 is identical to Plaintiff’s burden to
prove retaliation under the [ADA and RHA].” Moorer v. Copley, 98 F. Supp.2d 838, 845 (N.D.
Ohio 2000) (internal citations omitted); see also Hopkins v. Canton City Bd. Of Educ., 477 F.
App’x 349, 359-60 (6th Cir. 2012) (quoting Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 32627 (2007)). Because a retaliation claim under the ADA and the RHA are almost entirely
overlapping, they are examined simultaneously below.
The parties agree that Gainor filed complaints with the ODE, a protected activity. There
is also no dispute that Nally was aware of Gainor’s ODE filing. It is the final two elements,
regarding possible adverse action and a causal connection between the protected activity and that
adverse action, that are in dispute. To demonstrate an adverse employment action under a
retaliation claim, “a plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations omitted). In determining
whether certain actions should be considered, “courts look for at least a termination of
15 

employment, a demotion in wage, salary or job title, a loss of benefits, or a decrease in
responsibilities.” Trepka v. Bd. of Educ., 28 F. App'x 455, 462 (6th Cir. 2002). Defendants
allege that there was no adverse action taken against Plaintiff, claiming that her one- and two-day
suspensions were reasonable discipline. Plaintiff disagrees, stating that the various disciplines
taken against her were unjustified.
Despite the parties’ disagreement over whether the action taken was adverse, there is no
disagreement as to the material facts relevant to this element. Gainor was disciplined throughout
the 2008-2009 school year with two separate suspensions, and a clarification letter. During the
2010-2011 school year, she was not hired for positions for which she applied. The letter did
nothing more than clarify certain rules concerning Gainor’s employment. Gainor’s one- and
two-day suspensions were temporary, and though each suspension was without pay, the loss of
wages was limited to the short suspension periods. It is undisputed that Gainor was not hired for
certain positions for which she applied, but it is also undisputed that Gainor was placed into a
different position based on the “bumping rights” provision of the Collective Bargaining
Agreement, and that Gainor did not file a grievance upon being placed in her current position.
The letter is not materially adverse to Gainor’s employment. Gainor’s receipt of the
letter did not result in a diminution of pay, title, or benefits, thereby failing to rise to the level of
an adverse action. Id. Furthermore, the letter was simply a restatement of what had been
discussed at the disciplinary meeting, and did not have any material effect on Gainor’s
employment.
Additionally, Defendants’ failure to promote Gainor is also not an adverse employment
action. See Colston v. Cleveland Public Library, 522 F. App’x 332, 339 (6th Cir. 2013) (failure

16 

to promote is considered an adverse action under Title VII). When an employee requests a
“transfer to a new position within the same employer organization [it] must be analyzed as a
‘failure to promote.’” Sturgeon v. Southern Ohio Med. Ctr., No. 1:10-CV-318, 2011 WL
5878387, at *8 (S.D. Ohio) (citing Freeman v. Potter, 200 F. App’x 439, 443 and n. 1 (6th Cir.
2007)). An employer’s decision to deny a lateral transfer, however, “is not an adverse action
unless it results in a material change of salary, benefits, responsibilities, or prestige.” Id.
(internal citation omitted). Here, Plaintiff fails to adduce any evidence that Defendants’ failure
to promote Gainor was, in fact, an adverse action. Rather, Gainor was denied lateral transfers,
and Plaintiff does not explain any way in which these transfers would have materially changed
Plaintiff’s salary, benefits, responsibilities, or prestige.
Gainor’s suspensions without pay, however, can constitute an adverse employment
action. In certain circumstances, it is undeniable that suspension without pay is an adverse
action. See Burlington N. v. Santa Fe Ry. Co. v. White, 548 US.S. 53, 67 (2006) (a 37-day
suspension without pay was materially adverse). Shorter suspensions without pay, while not
nearly as severe as those lasting a month or more, have also been found to constitute an adverse
action. See Smith v. City of Salem, Ohio, 378 F.3d 566, 576 (6th Cir. 2004) (a 24-hour
suspension, the equivalent of three eight-hour work days, was an adverse employment action).
Though Gainor’s suspensions were two separate, short suspensions, they were without pay,
thereby meeting the standard of an adverse action.
Even if Plaintiff’s suspensions without pay rises to the level of an adverse action, that
alone does not establish a prima facie case of retaliation. Plaintiff still has the burden of showing
the causal connection. Not surprisingly, the causal connection between the alleged adverse
action and retaliation lies at the heart of the dispute. Defendants claim that the facts point to a
17 

lack of causal connection between the ODE filings and any adverse action taken against Plaintiff.
Conversely, Plaintiff argues that the facts show the opposite, fully supporting her claim of
retaliation. It is well settled that, “[to] establish a causal connection required in the fourth prong
[of the McDonnell-Douglas framework], a plaintiff must produce sufficient evidence from which
an inference could be drawn that the adverse action would not have been taken had the plaintiff
not filed a discrimination action.” Hicks v. SSP America, Inc., 490 F. App’x 781, 785 (6th Cir.
2012) (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). Temporal
proximity, though a factor in demonstrating causation, cannot alone establish a causal
connection. Fuhr v. Hazel Park School Dist., 710 F.3d 668, 675 (6th Cir. 2013) (citing Spengler
v. Worthington Cylinders, 615 F.3d 481, 494 (6th Cir. 2010). Contrarily, failure to show
temporal proximity is sufficient for a court to find that there is no causal connection between the
adverse action and the retaliation. Id. at 676.
The relevant timeline in determining a causal connection starts with the first ODE filing,
and spans the 2008-2009 school year. Gainor filed the relevant ODE complaints in April and
November 2008. On February 12, 2009, three months after the November 2008 ODE complaint,
the District conducted its first disciplinary hearing with Gainor, which covered her unexcused
exit from work on January 15, 2009, use of the classroom computer for personal matters, and
Gainor’s professional conduct. The hearing resulted in a one-day suspension, without pay, in
early March 2009. On February 18, 2009, Gainor filed a harassment complaint with the District,
specifically citing retaliation among the reasons for her claim. The District scheduled another
disciplinary hearing for July 6, 2009, which was held in September 2009, regarding Gainor’s
insubordination and failure to follow work rules and procedures. That hearing resulted in
Gainor’s two-day unpaid suspension. In October 2009, Gainor filed a complaint with the OCRC
18 

outlining the relevant, allegedly retaliatory events. Gainor accepted a job transfer for the 20092010 school year, but, due to budget cuts, lost that position and was reassigned to the role of
intervention specialist in June 2010. Her new job provided the same pay rate, but was six hours
per day rather than her previous rate of seven hours per day. In June 2010, November 2010, and
March 2011, Gainor applied for other positions, none of which she was offered. None of the
facts in the timeline are in dispute.
Defendants argue that Plaintiff has failed to meet her burden of establishing a causal
connection, stating that Plaintiff has not shown temporal proximity and has relied on conclusory
allegations. Plaintiff claims that Defendants showed a pattern of investigation and discipline
regarding Gainor, which, by itself, should establish the causal connection. As this Court has
already stated, temporal proximity must be shown for a plaintiff to properly demonstrate a causal
connection. Gainor filed her first ODE complaint in April 2008, was hired at WKHS and started
work there in August 2008, filed another ODE complaint in November 2008, and was first
disciplined in February 2009. The Sixth Circuit has found that a causal connection can be
established based on temporal proximity when the adverse employment action takes place within
months of the protected activity. Dixon v. Gonzales, 481 F.3d 324, 334 (6th Cir. 2007); see also
Randolph v. Ohio Dep’t of Youth Servs, 453 F.3d 724, 737 (6th Cir. 2006) (finding termination
that occurred six months after filing of workplace sexual assault was causally connected based
on temporal proximity). Though the three-month period between the November 2008 ODE
complaint and the February 2009 disciplinary hearing may be sufficient to establish temporal
proximity, it is not enough, when taken with the facts, to establish a causal connection.
Even if Plaintiffs were able to establish a prima facie case of retaliation, the
establishment of a prima facie case is not the final step in the analysis. Rather, the burden shifts
19 

to the employer to articulate some legitimate, nondiscriminatory reason for its actions. See
Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 521 (6th Cir. 2008) (citing McDonnell
Douglas, 411 U.S. at 802). Defendant has provided legitimate, nondiscriminatory reasons for
both of Plaintiff’s suspensions. For the March 2009 suspension, Defendant cites Plaintiff’s
various failures at work, ranging from leaving school without notifying her superiors to using the
computer for personal use. Regarding the October 2009 suspension, Defendant cites Plaintiff’s
failure to follow work rules and insubordination. Finally, Defendants articulate that Plaintiff was
properly considered, alongside other candidates, for the different jobs for which she applied.
Plaintiff does not dispute that. Additionally, as noted earlier, Plaintiff’s job reassignment was
done pursuant to the “bumping rights” in Plaintiff’s Collective Bargaining Agreement, and
Plaintiff did not take any steps to change her job placement. Accordingly, Defendants have
articulated legitimate, nondiscriminatory reasons for its disciplinary actions, thereby meeting
their burden.
Once Defendants have met the second McDonnell Douglas element, the burden shifts
back to the Plaintiff, who “must point out ‘evidence from which a jury could reasonably reject
[Defendants’] explanation’” as pretextual. Davis, 717 F.3d 476 (quoting Chen, 580 F.3d at 400).
To establish that Defendants’ reasons given for the disputed conduct was pretextual, Plaintiff can
show that the reasons: “(1) [have] no basis in fact, (2) did not actually motivate the defendants’
challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Zeidler, 516
F.3d at 526. Furthermore, Plaintiff must provide sufficient evidence on which a jury could
reasonably repudiate Defendants’ reasons, thereby determining that Defendants, “did not
honestly believe in the proffered nondiscriminatory reason for its adverse employment action.”
Id. at 526 (citing Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001). As noted
20 

earlier, Plaintiff lays out her advocacy actions (i.e., filing her complaints with the ODE) and
states that the “egregious discipline” of the first suspension was not in relation to Gainor’s
performance and behavior, but had “everything to do with her advocacy that led to the school
being investigated by the ODE.” (Doc. 25 at 15). Plaintiff’s argument, however, does not
address any alleged pretextual basis for Defendants’ actions. Plaintiff also fails to provide any
evidence from which a jury could find a pretextual reason for Defendants’ actions. Plaintiff does
not rebut any argument concerning Defendants’ legitimate, nondiscriminatory reasons for its
actions, thereby failing to prove that Defendants’ actions were pretextual.
Based on the foregoing, Defendants’ motion is GRANTED on Count II, Plaintiff’s
retaliation claim.
C. Intentional Infliction of Emotional Distress (Count III)
Count III of Plaintiff’s Complaint is a claim of Intentional Infliction of Emotional
Distress (“IIED”). As a threshold matter, Defendants argue that they are immune from suit
based on political subdivision immunity.
1. Political Subdivision Immunity
In Steinbrink v. Greenon Local Sch. Dist., the Second District Court of Appeals held that
Ohio school districts are political subdivisions under § 2744.01(F) and so are generally entitled
to political-subdivision immunity under § 2744.02(B). Steinbrink v. Greenon Local Sch. Dist.,
2012-Ohio-1438 at ¶ 18 (Ohio Ct. App. Mar. 30, 2012). The Court went on to hold, however,
that immunity was not available because of R.C. § 2744.09, which exempts from immunity “civil
actions by an employee . . . against his political subdivision relative to any matter that arises out
of the employment relationship between the employee and the political subdivision.” Id. at ¶ 25;
21 

see R.C. § 2744.09(B). The Court noted that the Ohio Supreme Court had recently held that
“[a]n employee’s action against a political subdivision employer arises out of the employment
relationship between the employee and the political subdivision within the meaning of R.C.
2744.09(B) if there is a causal connection or a causal relationship between the claims raised by
the employee and the employment relationship.” Steinbrink, 2012-Ohio-1438 at ¶ 24 (quoting
Sampson v. Cuyahoga Metro. Hous. Auth., 966 N.E.2d 247, Syllabus (Ohio 2012)). The Court
went on to find such a causal connection between the plaintiff’s employment as a football coach
and his claims of defamation, intentional infliction of emotional distress, and tortious
interference with contract. Id. at ¶ 25.
Plaintiff similarly brings a civil action against her political-subdivision employer, and
there is no dispute that her claim of intentional infliction of emotional distress bears a causal
relationship to the employment relationship. Because the Plaintiff’s claim of intentional
infliction of emotional distress arises from her employment relation with Defendants, they are
not entitled to political-subdivision immunity with respect to that claim. Defendants cannot,
therefore, avail themselves of the defense of political subdivision immunity on Plaintiff’s IIED
claim.
2. Intentional Infliction of Emotional Distress
Looking specifically to the merits of Plaintiff’s IIED claim, the Court must consider the
elements: “1) that Defendant either intended to cause emotional distress or knew or should have
known that actions taken would result in serious emotional distress to Plaintiff; 2) that
Defendants' conduct was so extreme and outrageous as to go beyond all possible bounds of
decency and was such that it can be considered as utterly intolerable in a civilized community; 3)

22 

that Defendants' actions were the proximate cause of Plaintiff's psychic injury; and 4) that the
mental anguish suffered by Plaintiff is serious and of a nature that no reasonable person could be
expected to endure.” Paquette v. City of Mason, Ohio, 250 F. Supp. 2d 840, 846-47 (S.D. Ohio
2002); see Ekunsumi v. Cincinnati Restoration, Inc., 120 Ohio App.3d 557, 698 N.E.2d 503, 506
(1997).13 Defendants may be liable only when Plaintiff demonstrates that their conduct was so
outrageous that it satisfies the four prongs of an IIED claim.
Plaintiff fails to provide sufficient evidence to demonstrate that she, in fact, suffered
emotional distress. The only evidence Plaintiff cites in support of her claim is the psychological
treatment she sought, which, based on her deposition, falls in line with a long history of
psychological care. (Gainor Dep., Doc. 18 at 257-289). Plaintiff also claims that Defendants
“continued to subject her to emotional distress” by continually placing her in Behavior Learning
Center positions. (Doc. 25 at 19). Finally, she argues Defendants intentionally acted through
unwarranted disciplinary procedures. (Id.). Plaintiff does not provide any additional evidence
on which she bases her emotional distress claim. Mere psychological counseling, tangential to
Plaintiff’s instant claim, internal transfer, and discipline, are not ipso facto sufficient to support
an IIED claim. Even viewing the evidence in the light most favorable to Plaintiff, it is clear that
she has failed to establish a claim for IIED. Therefore, Defendants prevail on this claim.
3. Paliotto’s Liability
Defendants argue that Paliotto is granted immunity under Ohio Rev.Code Ann. §
2744.03(A)(6)(a) and 2744.03(A)(6)(b). That section states, in relevant part: “the [political
subdivision] employee is immune from liability unless one of the following applies: (a) The

13

See also Morrow v. Reminger & Reminger Co. LPA, 183 Ohio App. 3d 40, 61 (2009); see Moore v. Impact
Community Action, 2013 WL, *4 (Ohio Ct. App. July 23, 2013).

23 

employee's acts or omissions were manifestly outside the scope of the employee's employment or
official responsibilities; (b) The employee's acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner.” ORC § 2744.03(A)(6)(a), § 2744.03(A)(6)(b).
Looking first at § 2744.03(A)(6)(a), Defendants state that Paliotto’s actions were within
the scope of her employment and official responsibilities, an argument that is uncontested by
Plaintiff. The evidence presented indicates that the various steps taken by Paliotto over the
course of Gainor’s employment were well within the scope of her employment and official
responsibilities. The material facts that speak directly to Paliotto’s involvement in the matter are
not disputed, further supporting Defendants’ request that Paliotto be granted summary judgment
(or perhaps, more properly, dismissed on this claim).
Turning to § 2744.03(A)(6)(b), Defendants’ allege that Paliotto did not act with malicious
purpose, in bad faith, or in a wanton or reckless manner. In opposition, Plaintiff states that
Paliotto acted maliciously. “‘Malice’ is the willful and intentional design to injure or harm
another, usually seriously, through conduct that is unlawful or unjustified.” Otero v. Wood, 316
F. Supp. 2d 612, 629 (S.D. Ohio 2004); see Wright v. City of Canton, 138 F.Supp.2d 955, 967 n.
8 (N.D.Ohio 2001) (citing Cook v. City of Cincinnati, 103 Ohio App.3d 80, 658 N.E.2d 814, 821
(1995)). Plaintiff points to Nally’s deposition, drawing attention to his statements that Paliotto
directed him to investigate Plaintiff following her ODE filings and relevant IEP meetings. (Nally
Dep., at 71-72). Additionally, Plaintiff argues that, because Paliotto was in charge of disciplining
Gainor, when it was within her discretion, and could control the degree of discipline, she acted
maliciously. (Doc. 24 at 20). Plaintiff’s claims are weak, and the facts relevant to this claim are
not disputed by either party. Construing the evidence in the light most favorable to the Plaintiff,
there is nothing that demonstrates Paliotto’s conduct was malicious.

24 

Based on the foregoing, Defendants’ motion is GRANTED on Count III, Plaintiff’s
claim of Intentional Infliction of Emotional Distress.
V. CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment is
GRANTED. This case is hereby DISMISSED.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Court Judge
DATED: December 13, 2013

25