Getachew v. Columbus City Schools

Filing 15

OPINION AND ORDER Defendant's motion to strike 14 is DENIED. Defendant's motion for summary judgment 12 is GRANTED. Signed by Judge James L Graham on 3/8/12. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Alemayehu Getachew,
Plaintiff,
v.

Case No. 2:11-cv-861

Columbus City Schools,
Defendant.
OPINION AND ORDER
This is a civil rights action filed by plaintiff Alemayehu
Getachew against defendant Columbus City Schools.

The complaint

purports to assert claims against defendant for alleged violations
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981 and
1983, and the Equal Protection Clause of the Fourteenth Amendment
stemming from the defendant’s failure to hire plaintiff as a bus
driver.

Plaintiff alleges that in refusing to hire him, defendant

cited his lack of experience despite the fact that he had a
commercial driver’s license.
This matter is before the court on defendant’s motion for
summary judgment.
response

to

the

Defendant has moved to strike plaintiff’s
motion

for

summary

judgment

as

untimely.

Plaintiff, who is proceeding in this action pro se, stated that his
response was late because he was out of state for forty-five days.
While this fact alone may not be sufficient to excuse the late
filing, the court notes that its ruling on the defendant’s motion
for summary judgment would be the same regardless of whether
plaintiff’s response is considered.
strike will be denied.

Therefore, the motion to

I. Summary Judgment Standards
“The court shall grant summary judgment 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.”
P. 56(a).

Fed. R. Civ.

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.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

A

party asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of materials in
the record, by showing that the materials cited do not establish
the absence or presence of a genuine dispute, or by demonstrating
that an adverse party cannot produce admissible evidence to support
the fact.

Fed. R. Civ. P. 56(c)(1)(A) and (B).

In considering a

motion for summary judgment, this court must draw all reasonable
inferences and view all evidence in favor of the nonmoving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Am. Express Travel Related Servs. Co. v. Kentucky,
641 F.3d 685, 688 (6th Cir. 2011).
The moving party has the burden of proving the absence of a
genuine dispute and its entitlement to summary judgment as a matter
of law.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The moving party’s burden of showing the lack of a genuine dispute
can be discharged by showing that the nonmoving party has failed to
establish an essential element of his case, for which he bears the
ultimate burden of proof at trial.

Id.

Once the moving party

meets its initial burden, the nonmovant must set forth specific
facts showing that there is a genuine dispute for trial.
322 n. 3.

Id. at

“A dispute is ‘genuine’ only if based on evidence upon
2

which a reasonable jury could return a verdict in favor of the nonmoving party.”

Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298

(6th Cir. 2008).

A fact is “material” only when it might affect

the outcome of the suit under the governing law. Id; Anderson, 477
U.S. at 248.
The nonmovant must “do more than simply show that there is
some metaphysical doubt as to the material facts[.]”
475 U.S. at 586.

Matsuchita,

A mere scintilla of evidence is not enough.

Anderson, 477 U.S. at 252; Ciminillo v. Streicher, 434 F.3d 461,
464

(6th

Cir.

2006).

Further,

the

nonmoving

party

has

an

affirmative duty to direct the court's attention to those specific
portions of the record upon which it seeks to rely to create a
genuine

issue

of

material

fact.

See

Fed.

R.

Civ.

P.

56(c)(3)(noting that the court “need consider only the cited
materials”).
II. Legal Status of Defendant
Defendant first argues that it is entitled to summary judgment
because it is not an entity which can be sued under Ohio law.

Ohio

Rev. Code §3313.17 states, “The board of education of each school
district shall be a body politic and corporate, and, as such,
capable of suing and being sued[.]”

Ohio courts have held that a

school district is not sui juris; rather, it is the board of
education which must be sued.

See Eppley v. Tri-Valley Local

School Dist., No. CT2007-0022 (5th Dist. unreported), 2008 WL 77471
(Ohio App. Jan. 3, 2008), rev’d on other grounds, 122 Ohio St.3d 56
(2009); Carney v. Cleveland Heights-University Heights City School
Dist., 143 Ohio App.3d 415, 424, 758 N.E.2d 234 (2001); Catchings
v. Cleveland Public Schools, NO. 43730 (8th

Dist. unreported),

1982 WL 5261 at *3 n. 2 (Ohio App. April 1, 1982); see also Wortham
3

v. Akron Public Schools, No. 5:08CV233, 2008 WL 762530 at *2
(N.D.Ohio March 20, 2008)(dismissing federal claims under §1983 and
Title VII against the Akron Public Schools “because it is not sui
juris”).

Since defendant is not sui juris or an entity capable of

being sued, defendant is entitled to summary judgment on all of
plaintiff’s claims in this civil action.
III. Title VII Claim
Defendant has also moved for summary judgment on plaintiff’s
Title VII claim on the ground that plaintiff’s complaint was not
timely filed.

Pursuant to 42 U.S.C. §2000e-f(f)(1), a complaint

alleging Title VII violations must be filed no later than ninety
days after the plaintiff’s receipt of a right-to-sue letter from
the Equal Employment Opportunity Commission.

This time limit is

not jurisdictional, and is subject to equitable tolling. Truitt v.
County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998).
In the instant case, the right-to-sue letter was mailed to
plaintiff on June 15, 2011.

There is a presumption that mail is

received by the addressee and that the ninety-day time limit begins
to run five days after the EEOC mails the notice of right to sue.
Banks v. Rockwell Int’l North American Aircraft Operations, 855
F.2d 324, 326 (6th Cir. 1988).

Plaintiff has provided no evidence

that he did not receive the letter within five days.

Counting the

extra five days, the ninety-day period in this case expired on
September 19, 2011. Plaintiff’s complaint was filed with the clerk
of this court on September 26, 2011, a week late.1
1

It is arguable that the effective date of filing was even later.
Plaintiff’s motion for in forma pauperis (IFP) status was not filed until October
27, 2011, and was granted on October 28, 2011. “[I]t is proper for a district
court to deem a complaint ‘filed’ only when IFP status is granted ... rather than
at the time a complaint is delivered to the clerk of a court.” Truitt, 148 F.3d
at 648.

4

Plaintiff argues that the filing date should be the date the
complaint was placed in the mail.
evidence of when that occurred.

Plaintiff has offered no

In any event, under Fed.R.Civ.P.

3, a civil action is instituted only by “filing a complaint with
the court.”

When papers are mailed to the clerk’s office, filing

is complete when the papers are received by the clerk, and papers
arriving after a deadline are untimely even if mailed before the
deadline.

Strickland

v.

Wayne

Farms-Southland

Hatchery,

132

F.Supp.2d 1331, 1333 (M.D.Ala. 2001); Clark v. Milam, 152 F.R.D.
66, 69 (S.D.W.Va. 1993).
The time limits for filing a Title VII action are subject to
equitable tolling.

Truitt, 148 F.3d at 648.

However, plaintiff

has offered no evidence which would establish grounds for equitable
tolling in this case.

The right-to-sue letter under the heading

“NOTICE OF SUIT RIGHTS” specifically advised plaintiff that a
lawsuit under Title VII must be filed within ninety days of
plaintiff’s receipt of the notice.

Plaintiff thus had notice of

the filing requirement and was not diligent in pursuing his rights.
Plaintiff’s only argument is that because he is “a lay” the court
“can exercise [a] liberal position.”

However, pro se status does

not excuse noncompliance with procedural rules in civil litigation.
In re: G.A.D., Inc., 340 F.3d 331, 335 (6th Cir. 2003); see also
McNeil v. United States, 508 U.S. 106, 113 (1993))(noting that the
Supreme court has “never suggested procedural rules in ordinary
civil litigation should be interpreted so as to excuse mistakes by
those who proceed without counsel”). Therefore, plaintiff’s pro se
status

alone

is

insufficient

to

warrant

equitable

tolling.

Defendant’s motion for summary judgment on the Title VII claims on
the ground of failure to comply with the limitations period is well
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taken.
IV. Equal Protection Claim
Defendant has also moved for summary judgment on plaintiff’s
equal protection claim, arguing that plaintiff has failed to show
that he has standing to assert this claim because he has not
alleged that he was treated differently by defendant than any
similarly-situated non-protected individuals.
The Equal Protection Clause of the Fourteenth Amendment of the
United States Constitution prohibits discrimination by government
which intentionally treats one differently than others similarly
situated without any rational basis for the difference. Johnson v.
Bredesen, 624 F.3d 742, 746 (6th Cir. 2010). The framework applied
to Title VII claims by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973) also applies to plaintiff’s equal
protection disparate treatment claim under §1983. Arendale v. City
of Memphis, 519 F.3d 587, 603 (6th Cir. 2008).

Plaintiff must

prove

or

that

he

discrimination

was
by

the

victim

either

direct

of
or

intentional

circumstantial

purposeful
evidence.

Abdulnour v. Campbell Soup Supply Co., LLC, 502 F.3d 496, 501 (6th
Cir. 2007).

In the absence of direct evidence of discrimination,

plaintiff must set forth a prima facie case of discrimination by
showing (1) that he belongs to a protected minority; (2) that he
applied for a job for which the employer was seeking applicants;
(3) that, despite his qualifications, he was rejected; and (4) that
after his rejection, the position remained open and the employer
continued to seek applicants. McDonnell Douglas Corp., 411 U.S. at
802.
In

his

unverified

complaint,

plaintiff

makes

vague

and

conclusory allegations stating his own personal beliefs concerning
6

defendant’s hiring practices.

However, the complaint fails to

allege facts sufficient to state an equal protection violation. In
response to defendant’s motion for summary judgment, plaintiff has
offered no evidence that he was a member of a protected minority or
that similarly-situated non-minority job applicants with similar or
lesser qualifications were treated differently.

Defendant is

entitled to summary judgment on the ground that plaintiff has
failed to adequately plead an equal protection violation or to
produce evidence sufficient to demonstrate the existence of a
genuine dispute regarding that claim.
V. Conclusion
In accordance with the foregoing, defendant’s motion to strike
(Doc. 14) is denied. Defendant’s motion for summary judgment (Doc.
12) is granted.

Date: March 8, 2012

s/James L. Graham
James L. Graham
United States District Judge

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