Smith v. Ohio Department of Job and Family Services

Filing 31

OPINION AND ORDER granting 21 Motion for Summary Judgment. Signed by Judge James L Graham on 11/3/2014. (ds)

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

Case No. 2:13-cv-56

The Ohio Department of
Jobs and Family Services,
Defendant.
OPINION AND ORDER
This is an employment discrimination action filed by plaintiff
Randall Smith against his employer, the Ohio Department of Jobs and
Family Services (“the Department”), an agency of the State of Ohio.
In Count 1 of the complaint, plaintiff asserts a claim under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e,
et seq., alleging disparate treatment based on his male sex.
Plaintiff contends that despite the fact that he was assigned
additional duties previously performed by female employees, he was
not promoted to a higher pay range and did not receive wage
supplements, while other female employees in his office did receive
promotions or wage supplements.

In Count 2 of the complaint,

plaintiff asserts a claim under the Equal Pay Act, 29 U.S.C. §206,
alleging that the Department paid him less than female employees
for equal work.
This matter is before the court on the Department’s motion for
summary judgment.
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

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

2

(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. Factual Background
The Department has almost 3,000 employees, and is responsible
for supervising Ohio’s public assistance, workforce development,
unemployment compensation, child and adult protective services,
adoption, child care, and child support programs.

Plaintiff began

his employment with the Department in 1995, and held the positions
of Personnel Officer 2, Management Analyst Supervisor 1, and
Management Analyst Supervisor 2.
absence

on

disability

retirement,

After a five-year leave of
plaintiff

returned

to

the

Department in 2009, and was assigned to the position of management
Analyst Supervisor 2, Asset Manager, in the Information Management
(“IM”) Section of the Employee and Business Services Department.
Plaintiff’s duties included overseeing the Department’s asset
management program and properly accounting for all state-owned
property.

3

In August of 2010, plaintiff discovered that significant
assets, including computer servers, laptop computers and network
components were unaccounted for and he filed a complaint with the
Office of the Inspector General, which later located the assets
during its investigation.

Plaintiff’s supervisor, Section Chief

James Lowe, concluded that plaintiff referred the matter to the
Inspector General’s Office because he did not want to look for the
lost assets himself.

Lowe also determined that plaintiff had

“poisoned” the IM Section’s working relationship with the Office of
Information Services by alienating employees of that office.
Dep., pp. 28, 103-104.
memorandum

to

plaintiff

Lowe

Lowe issued a corrective counseling
and

re-assigned

management duties to another male employee.

plaintiff’s

asset

Although Lowe sought

to have plaintiff reassigned to another section because plaintiff
no longer had sufficient pay grade 14 work to perform following the
loss of his asset management duties, Lowe was told that plaintiff
would not be re-assigned, and that Lowe had to find other work for
plaintiff within the IM Section.

Plaintiff remained a Management

Analyst Supervisor 2, pay grade 14.

Lowe moved plaintiff into a

performance management role and attempted to create an Operations
Manager position for plaintiff in the IM Section by assigning him
additional tasks to supplement the available pay grade 14 work.
However, Lowe had a difficult time finding sufficient tasks,
particularly grade 14 duties, for plaintiff to perform.
In 2011, plaintiff informed Lowe that he was looking for
promotional opportunities outside the IM Section because he felt
that the duties assigned to him were inconsistent with his job
classification and pay grade.

Lowe advised plaintiff to identify

4

positions that were of interest to him, and stated that he would
try to help plaintiff to obtain a lateral transfer.

Plaintiff

located a vacant Management Analyst 2 position, pay grade 14, in
the Veteran Services section of the Workplace Development Office
which had not yet been posted.

At Lowe’s request, plaintiff

provided a qualification summary which Lowe forwarded.

Plaintiff

later asked Lowe again about the vacant position, and Lowe informed
him that he had not heard anything back.

Approximately three or

four months later, the position was posted, but plaintiff did not
apply for the position, and it was awarded to a male.
also

expressed

interest

Information Services.

in

transferring

to

Plaintiff

the

Office

of

However, Chief Operations Officer Sonnetta

Sturkey did not approve the transfer because she had a policy
against

transferring

employees

unless

there

was

a

specific

departmental need. Lowe also considered creating a project manager
position which would be funded by the Employee and Business
Services Department and other departments, but this position was
never approved.
In March of 2011, Classification and Compensation Manager
Nancy

Jancso-Kocarek

requested

that

all

IM

Section

employees

complete a Position Description Questionnaire ("PDQ”) to ensure
that all employees were properly classified.

Plaintiff completed

the questionnaire, which was then forwarded to Lowe to fill in the
supervisor portion of the questionnaire.

Lowe indicated on the

form that plaintiff’s job duties as IM Operations Manager included:
monitoring section operations; assembling performance management
tools;

collecting

and

analyzing

performance

data;

building

inspection; identifying security and safety issues; turning in

5

excess property; and performing other duties as assigned.

Lowe

noted that plaintiff was in a new position and that some of his job
duties had been recently developed.
to provide rebuttal comments.

Plaintiff was then permitted

Although Lowe did not inform

plaintiff that the evaluation process would result in plaintiff
being promoted to pay grade 15, Lowe led plaintiff to believe that
this was a possibility.

Lowe, as the section chief, was the only

pay grade 15 employee in the IM Section.

There were no pay grade

15 vacancies in the section at that time.
During the PDQ process, Lowe assigned additional duties to
plaintiff.

These

(Administrative

including:

Officer

2,

filling

pay

grade

in
14)

for
while

Holly
she

Howard
was

on

disability leave for four months in 2011; performing warehouse
management duties plaintiff believed should have been assigned to
Beth Curry (Visual Communications Manager, pay grade 13); a special
project involving the consolidation of Howard’s operations from
three facilities into one facility, which plaintiff believed fell
within the scope of job responsibilities belonging to Teri Ziegler
(Business Operations Manager 1, pay grade 12); filling in for Beth
Curry while she was on disability leave; and serving as Lowe’s
administrative assistant.
On December 6, 2011, Lowe was advised of the results of the
PDQ study, which included the finding that plaintiff was properly
classified as a Management Analyst Supervisor 2, pay grade 14. The
results of the study were officially released on December 23, 2011.
The study concluded that plaintiff should not be upgraded to a pay
grade 15 because all of the duties he performed were at a pay grade
14 level.

No other employees in the IM Section were upgraded from

6

a pay grade 14 to a pay grade 15 as a result of the PDQ study.
Plaintiff told Employee and Business Services Department Deputy
Director Carolyn Borden-Collins that he was disappointed with the
results of the PDQ study in light of his assumption of additional
responsibilities.

Borden-Collins stated that she would speak with

Chief

Officer

Operations

Sonnetta

Sturkey

about

plaintiff’s

concerns, but plaintiff did not follow up on his inquiries with
Borden-Collins.
Following

the

PDQ

study,

Lowe

continued

to

search

for

additional duties for plaintiff to perform in an effort to further
develop plaintiff’s position.
previously

shared

(Management

Analyst

by

Lowe decided to consolidate duties

Howard,

Curry,

Supervisor

1,

Ziegler,

pay

grade

Kathy
12)

and

Forrest
Yvonne

Robertson (pay grade 30, union bargaining unit member), and to
assign those duties to plaintiff.
orders

and

contracts,

and

These duties involved purchase

included

developing contracts and bid documents.

the

responsibility

for

Plaintiff was designated

as the opening manager who handled calls from employees calling off
for the day.

Plaintiff was assigned to assist other managers with

problematic employees.

Plaintiff was also assigned the task of

being the facility liaison for the Department’s Integrity Drive
location.

This job involved occasionally reporting maintenance

issues, such as heating, air conditioning, or electrical problems,
by phone call or email to Teri Ziegler, Business Operations Manager
of

the

Facilities

Operations

Business Services Department.

Department

of

the

Employee

and

These extra duties were consistent

with or below the duties of plaintiff’s pay grade 14.
Employees of the Department can qualify for a temporary work

7

level (“TWL”) if they assume the duties of a vacant position that
is in a higher pay grade.

Lowe Dep., p. 76.

that he did not qualify for a TWL.

Plaintiff admitted

Smith Dep., p. 84.

Employees

can also qualify for a temporary work adjustment (“TWA”).

Lowe

testified that a TWA could be allowed for temporarily performing
the work duties of a higher pay grade position which was not
vacant.

Lowe Dep., pp. 76-77.

Plaintiff thought that a TWA would

be available if an employee performs some of the duties of a person
in a position with the same or higher pay grade.
83.

Smith Dep., p.

However, he acknowledged that he did not request a TWA.

Smith

Dep., p. 85.
After Holly Howard (pay grade 14) was killed in an automobile
accident on March 17, 2012, Kathy Forrest (Management Analyst
Supervisor 1, pay grade 12) was issued a TWL to perform Howard’s
duties.

Because Forrest had difficulty completing the duties of

both positions, Lowe assigned some of Forrest’s duties to plaintiff
in an effort to evenly distribute the work.

In November, 2012,

Lowe retired, and Nicholas Linn, his successor, promoted Forrest
into Howard’s position on a permanent basis.
The record also indicates that in February of 2012, Lisa
Endicott was promoted from the position of Management Analyst 1,
pay grade 12, to Management Analyst 2, pay grade 14.

At the time

of her promotion, Endicott worked in a different section of the
Employee and Business Services Department than plaintiff, and had
a different supervisor.

From September 12, 2011, through February

23, 2013, Cynthia Tuttle (Management Analyst Supervisor 1, pay
grade 12) received a TWL for assuming the duties of a vacant
Management Analyst Supervisor 2, pay grade 14, position, and later

8

received a TWA for performing the duties of another grade 14
position.

During that time, Tuttle worked in a different section

than plaintiff, and had a different supervisor.
From 2012 to 2013, the Ohio Department of Administrative
Services conducted a study concerning the overuse of the Management
Analyst

Supervisor

classifications.

1

and

2

positions,

and

eliminated

those

Classification and Compensation Manager Nancy

Jancso-Kocarek conducted an audit on plaintiff’s position in order
to determine the proper classification for that position.

Jancso-

Kosarek determined that plaintiff’s position should be classified
as a Management Analyst, pay grade 30, a position within the
jurisdiction of union bargaining unit 14, effective October 20,
2013.

Plaintiff’s pay was not reduced when his position was

reclassified.
On August 10, 2012, plaintiff filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”). Doc. 16-1, Smith Dep.,
Ex. 1.

Plaintiff complained that he was not promoted as promised

to a higher pay grade as a result of the PDQ study.

Plaintiff

alleged that he performed additional duties previously assigned to
female employees, but was not given a pay increase.

Plaintiff

contended that Lisa Endicott and Cynthia Tuttle, female coworkers
who performed the same or similar duties that plaintiff performed,
were promoted due to a change in their duties or their performance
of additional duties, but he was not.

Plaintiff also claimed that

in April, 2012, Kathy Forrest was given a pay supplement to fill in
for deceased employee Holly Howard, and that plaintiff was assigned
some of Forrest’s job duties but was not given a pay supplement.
On December 18, 2012, the EEOC closed plaintiff’s file because it

9

was “unable to conclude that the information obtained establishes
a violation of the statutes.”

Smith Dep., Ex. 2.

Plaintiff filed

the instant action on January 21, 2013.
III. Plaintiff’s Claims
A. Standards - Claim of Reverse Discrimination
Title VII makes it unlawful for an employer “(1) to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate

against

compensation,

terms,

any

individual

conditions,

or

with

respect

privileges

of

to

his

employment,

because of such individual’s race, color, religion, sex, or national
origin[.]”

42 U.S.C. §2000e-2.

A case of disparate treatment

discrimination may be shown by direct or by circumstantial evidence.
Direct evidence “is that evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a motivating
factor in the employer’s actions.”
F.3d 350, 359 (6th Cir. 2006).

Amini v. Oberlin College, 440

Direct evidence must prove not only

discriminatory animus, but also that the employer actually acted on
that animus.

Id.

Where one must draw an inference to determine

the actor’s motivation, the evidence is not direct.

Romans v.

Michigan Dep’t of Human Services, 668 F.3d 826, 836 (6th Cir. 2012).
Plaintiff
discrimination
compensation.

has

not

relating

identified
to

his

any

direct

promotion

evidence

of

opportunities

or

Plaintiff did testify that his supervisor, James

Lowe, told him at some undisclosed time that “he expected more out
of me because I was an ex-military guy than he did to the whole
bunch of women, and he motioned to the north end of the building
where all the female employees we spoke of are housed[.]”
Dep., p. 102.

Smith

However, even plaintiff testified that he could not

10

“interpret” what Lowe meant by this comment.

Smith Dep., p. 102.

The comment on its face is not critical of plaintiff.

Isolated and

ambiguous comments such as this one are insufficient to support a
finding of direct discrimination.

White v. Columbus Metropolitan

Housing Auth., 429 F.3d 232, 239 (6th Cir. 2005).
If there is no direct evidence of discrimination, plaintiff
must proceed under the framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).

In a case such as this one

involving allegations of reverse discrimination (discrimination
against a non-minority), plaintiff must present a prima facie case
showing: (1) that the defendant “is that unusual employer who
discriminates against the majority;” (2) that he was qualified for
the position in question; (3) that he suffered an adverse employment
action, such as failure to promote; and (4) that he was treated
differently than other similarly situated women.

See Arendale v.

City of Memphis, 519 F.3d 587, 603-04 (6th Cir. 2008); see also
Becker v. Almwood Local School Dist., 519 F.App’x 339, 342 (6th Cir.
2013).

Plaintiff must show that he is similarly situated in “all

relevant respects” to the female employees he alleges were treated
more favorably.

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d

344, 353 (6th Cir. 1998)(emphasis in original).

If plaintiff makes

out a prima facie case, the burden shifts to the defendant to show
a legitimate, non-discriminatory reason behind its actions.
603.

Id. at

Once defendant has met its burden, plaintiff must prove that

the stated explanation was a pretext for discrimination.

Id.

Plaintiff can demonstrate pretext by showing that the proffered
reason (1) has no basis in fact, (2) did not actually motivate the
defendant’s challenged conduct, or (3) was insufficient to warrant

11

the challenged conduct.

Dews v. A.B. Dick Co., 231 F.3d 1016, 1021

(6th Cir. 2000).
To establish the first prong of a prima facie case of reverse
discrimination, plaintiff must typically “‘demonstrate background
circumstances to support the suspicion that the defendant is that
unusual employer who discriminates against the majority.’” Martinez
v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 915 (6th
Cir. 2013)(quoting Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249,
255 (6th Cir. 2002)).

A reverse discrimination claim carries a

different and more difficult prima facie burden, which requires
plaintiff

to

show

suspicion

that

that

the

background

defendant

is

circumstances
that

unusual

support

the

employer

who

discriminates against the majority, and that the employer treated
differently employees who were similarly situated but not members
of the protected group.
cir. 2006).

Briggs v. Potter, 463 F.3d 507, 517 (6th

“This requirement is not onerous, and can be met

through a variety of means, such as statistical evidence; employment
policies

demonstrating

considerations;

evidence

a

history

that

the

of

person

unlawful
responsible

[gender]
for

the

employment decision was a minority; or general evidence on ongoing
[gender] tension in the workplace.

Johnson v. Middle Metropolitan

Government of Nashville and Davidson Cty., Tenn., 502 F.App’x 523,
536 (6th Cir. 2012); see also Treadwell v. American Airlines, Inc.,
447 F.App’x 676, 679 (6th Cir. 2011)(background circumstances can
include evidence that Caucasians as a class received lower pay less
vacation
plaintiff

time,
may

less
not

overtime

rely

on

or

his

fewer
own

promotions).

situation

to

However,

provide

the

“background circumstances;” rather, some indication of impermissible

12

discrimination

in

addition

to

plaintiff’s

own

allegedly

poor

treatment is necessary to support an inference of impropriety.
Treadwell, 447 F.App’x at 679 (citing Murray v. Thistledown Racing
Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985)).
B. Evidence of Reverse Discrimination
Defendant argues that plaintiff has failed to present evidence
sufficient to “support the suspicion that the defendant is that
unusual employer who discriminates against the majority[.]
v. Wayne Cty., 950 F.2d 316, 324-25 (6th Cir. 1991).

Boger

Plaintiff has

produced statistical evidence that the ratio of women to men
employed by the Department is 2:1.
to hire case.

However, this is not a failure

Rather, plaintiff complains that he did not receive

a pay upgrade for performing additional duties or the same salary
supplements received by certain other women employees.

Defendant

notes that the same EEOC summary relied upon by plaintiff to show
the 2:1 ratio also shows that men employed by the Department receive
an average salary of $27.53 per hour, whereas the average salary for
women employees is $26.33 per hour.

This evidence does not suffice

as evidence of reverse discrimination.

Plaintiff has not met the

first element of his prima facie case of reverse discrimination, and
no genuine dispute exists as to this element.
C. Discrimination in Promotion
Plaintiff alleged in his complaint that he was discriminated
against on the basis of his sex in the matter of promotions.
However, he states in his memorandum contra that this is “not a
promotion case per se.”

Doc. 29, p. 6.

In demonstrating a prima

facie case based on discrimination in promotion, plaintiff must show
that he applied for and was qualified for a promotion, that he was

13

considered for and was denied the promotion, and that a female
employee received the job at the time plaintiff’s request for a
promotion

was

denied.

White,

429

F.3d

at

240.

Plaintiff

acknowledges that he did not apply for a promotion during the time
period relevant to this case.

In particular, he did not apply for

the posted position in the Veteran’s Service area of the Workforce
Development Office, which, in any event, was filled by a male
employee.

Smith Dep., pp. 73, 75.

The gist of plaintiff’s complaint is that although he performed
additional

assigned

duties

competently,

his

reclassified as a pay grade 15 position.

position

was

not

Plaintiff acknowledges

that he was not denied a specific promotion, but contends that he
took on additional duties because he was told by Lowe that his
“stock was rising” and that Lowe was hopeful that plaintiff’s
assumption of these duties would justify the upgrade of plaintiff’s
position to a pay grade 15 position.

Plaintiff argues that he was

not given credit for taking on duties removed from incompetent
female

employees,

while

female

employees

who

did

not

perform

competently were promoted.
There is evidence that female employees were promoted to
various other grade 14 positions. For example, in February of 2012,
Lisa Endicott was promoted from the position of Management Analyst
1, pay grade 12, to a different position, Management Analyst 2, pay
grade 14.

However, this is evidence of a promotion to a different

position, not an upgrade of the same position occupied by the
employee to a higher pay grade.

Plaintiff points to no evidence

that

employees

similarly-situated

positions

permanently

female

reclassified

14

at

a

had

their

higher

pay

existing
grade

for

performing additional duties.
Defendant also notes that the duties assigned to plaintiff were
the result of the efforts of his supervisor, James Lowe, to create
a new position for plaintiff after plaintiff’s asset manager duties
were reassigned to Phil Anderson, a male employee.

Lowe testified

that plaintiff’s sole responsibility as asset manager had been to
role out new asset management policy and procedures.
pp.

202-203.

After

those

responsibilities

were

Lowe

Dep.,

assigned

to

Anderson, Lowe recommended that plaintiff be moved to another
position in the Department so that he could be productive in a
position in his pay grade, but Lowe was told that he would have to
keep plaintiff in the IM Section.

Lowe Dep., pp. 80-81.

Lowe had

to attempt to create a position for plaintiff as an operations
manager because plaintiff did not have enough to do. Lowe Dep., pp.
170-171.

Thus, the duties assigned to plaintiff were technically

not extra duties, as Lowe struggled to find sufficient work for
plaintiff, particularly work at a pay grade 14 level.
pp. 35, 84, 164, 171, 193, 203.

Lowe Dep.,

Lowe testified that he also

monitored the workload of female employees on a daily basis to
determine if extra assignments were warranted.

Lowe Dep., p. 171.

Plaintiff has produced no evidence that similarly-situated female
employees whose duties were reassigned were not then given new
duties previously performed by other supervisors.
Plaintiff

contends

that

in

light

of

his

performance

of

additional duties, his pay grade 14 position should have been
increased to a grade 15 position as a result of the PDQ.

However,

the evidence establishes that no other employee, male or female, in
plaintiff’s section was upgraded from a pay grade 14 to a pay grade

15

15 as a result of the PDQ study.

Plaintiff says that he relied on

Lowe’s representations concerning the possible upgrade of his
position through the PDQ study by accepting the assigned duties.
However,

this

claim

discrimination claim.

is

a

promissory

estoppel

claim,

not

a

Plaintiff has produced no evidence that Lowe

arranged for pay upgrades of existing positions occupied by female
employees.

Plaintiff’s promissory estoppel claim does not lie

against the State of Ohio.

See Kadar v. Ohio Dep’t of Public

Safety, No. 2004-06-46 (unreported), 2005 WL 2364834 at *3 (Ohio Ct.
Claims Aug. 24, 2005)(promissory estoppel does not apply against
state agency; attempt by supervisor to negotiate plaintiff’s salary
at a rate higher than permitted by statutory pay schedule was
contrary to express statutory law).
Plaintiff’s

complaint

that

the

assignment

of

new

duties

resulted in him working in a position without a job description in
violation of Department policy is a state law matter within the
purview of the State Personnel Review Board, not discrimination
under Title VII.

There is no evidence that similarly-situated

female employees were never required to perform newly assigned
duties outside the scope of their job descriptions.

Finally,

plaintiff also notes the fact that following the reclassification
of his position from Management Analyst Supervisor 2 to that of
Management Analyst within the jurisdiction of the union, he has been
required to pay union dues.
similarly-situated

female

However, there is no evidence that
employees

whose

positions

were

reclassified as union positions are not required to pay union dues.
Plaintiff has failed to produce evidence sufficient to show the
existence of a genuine dispute of fact regarding the existence of

16

a prima facie case of discrimination in promotions or due to the
failure to reclassify his position in a higher pay grade.
D. Discrimination in Wage Supplements
Plaintiff’s Title VII claim also relies on evidence that
certain female employees received temporary work level (“TWL”) and
temporary work adjustment (“TWA”) pay supplements, whereas he did
not. James Lowe, plaintiff’s immediate supervisor, testified in his
deposition that an employee was eligible for a TWL if he or she
assumes the duties of a vacant position that is in a higher pay
grade.

Lowe Dep., p. 76.

Plaintiff admitted during his deposition

that he did not qualify for a TWL.

Smith Dep., p. 84.

However, he

continues to base his Title VII claim on the failure to give him a
TWL, noting in his affidavit the deposition testimony of Deputy
Director Carolyn Borden-Collins that “it’s possible to get a TWL
when you’re not taking over somebody’s duties entirely[.]”

Borden-

Collins Dep., p. 163.
This issue is resolved by Ohio statutory law.

Under Ohio Rev.

Code Chapter 124, state employees are compensated in accordance with
statutory law.

Until October 20, 2012, when plaintiff’s position

of Management Analyst Supervisor 2 was abolished and reclassified
as that of Management Analyst under the jurisdiction of the union,
plaintiff

was

an

exempt

employee.

Under

Ohio

Rev.

Code

§124.152(A)(1), “each exempt employee shall be paid a salary or wage
in accordance with schedule E-1 or schedule E-2 of division (B) of
this section.”

§124.152(A)(1).

Ohio Rev. Code §124.181.

Pay supplements are governed by

TWLs are provided for in Ohio Rev. Code

§124.181(J), which states in relevant part:
Whenever an employee is assigned to work in a higher
level position for a continuous period of more than two
17

weeks but no more than two years because of a vacancy,
the employee’s pay may be established at a rate that is
approximately four per cent above the employee’s current
base rate for the period the employee occupies the
position, provided that this temporary occupancy is
approved by the director.
§124.181(J).

This provision clearly indicates that a TWL may be

awarded only when the employee is “assigned to work in a higher
level position ... because of a vacancy.”
In this case, there is evidence that Kathy Forrest (Management
Analyst Supervisor 1, pay grade 12) was issued a TWL to assume the
duties of Holly Howard (pay grade 14), whose position became vacant
when she was killed in an automobile accident on March 17, 2012.
There was also evidence that from September 12, 2011, through
February 23, 2013, Cynthia Tuttle (Management Analyst Supervisor 1,
pay grade 12) received a TWL for assuming the duties of a vacant
Management Analyst Supervisor 2, pay grade 14, position.

These

employees were “assigned to work in a higher level position ...
because of a vacancy.”

§124.181(J).

There is no evidence that

plaintiff ever filled a vacant position with a pay grade higher than
his pay grade 14 so as to be eligible for a TWL.

There is also no

evidence that plaintiff ever offered to perform and was qualified
to perform the duties of any vacant position with a pay grade higher
than his pay grade 14, but was denied that opportunity when a woman
was assigned the duties of the vacant position.

As there is no

evidence that plaintiff ever qualified for a TWL, plaintiff has
failed to demonstrate a prima facie case of disparate treatment
discrimination based on the failure to give him a TWL, and no
genuine dispute of fact has been shown to exist in that regard.

18

Plaintiff also contends that he was discriminated against on
the basis of his sex when he was assigned additional duties
previously performed by women employees, but was not given a TWA.
Lowe

testified

that

a

TWA

could

be

allowed

for

temporarily

performing the work duties of a higher pay grade position which was
not vacant.

Lowe Dep., pp. 76-77.

never requested a TWA.

Plaintiff acknowledged that he

Smith Dep., p. 85.

However, plaintiff

testified in his deposition that a TWA would be available if an
employee performs some of the duties of a person in a position with
the same or higher pay grade.

Smith Dep., p. 83.

This argument is also governed by statute.

The editor’s notes

to Ohio Rev. Code §124.181 (Baldwin’s Ohio Revised Code Ann., Title
1,

p. 110 (Thomson Reuters 2014 Supp.)) include language from

uncodified law incorporated in various biennium budget bills.

For

example, 2011 H 153, §701.30, effective September 29, 2011, reads:
Notwithstanding section 124.181 of the Revised Code, in
cases where no vacancy exists, an appointing authority
may, with the written consent of an exempt employee,
assign duties of a higher classification to that exempt
employee for a period of time not to exceed two years,
and that exempt employee shall receive compensation at a
rate commensurate with the duties of the higher
classification.
This provision was applicable during the time period relevant to
plaintiff’s claims.

This language indicates that a TWA applies in

a case where no vacancy exists if the employee is assigned the
duties “of a higher classification to that exempt employee” and such
duties are assigned “with the written consent of” the employee.
There is no evidence that plaintiff ever gave his written consent
to

be

assigned

classification.

the

duties

of

a

position

with

a

higher

Plaintiff notes that Cynthia Tuttle (Management
19

Analyst Supervisor 1, pay grade 12) received a TWA for performing
the duties of a grade 14 position after her TWL ended in February
23, 2013.

Because Tuttle received a TWA for performing the duties

of a position with a higher classification, she was eligible for a
TWA.

However, the evidence of record shows that plaintiff was

assigned to perform part of the duties of employees in jobs with the
same or lower classification as plaintiff’s position.

Therefore,

plaintiff was not entitled to a TWA.
The only other statutory provision which potentially authorizes
an award of higher pay is found in Ohio Rev. Code §124.15(F).

That

section states that “[i]f employment conditions and the urgency of
the

work

require

such

action,

the

director

of

administrative

services may authorize payment at any rate established within the
range for the class of work, for work of a casual or intermittent
nature or on a project basis” for up to three months ... subject to
the approval of the director of budget and management as to the
availability of funds.”

§124.15(F).

Plaintiff testified that he

was assigned to a project which involved consolidating three of the
Department’s facilities into one facility.

Smith Dep., p. 101.

However, §124.15(F) only authorizes payment “at any rate established
within the range for the class of work.”
that

this

consolidation

project

involved

The evidence indicates
work

within

the

job

responsibilities of Holly Howard (pay grade 14) and Teri Ziegler
(pay grade 12).

Thus, this special project involved work at or

below the level of plaintiff’s pay grade 14 and plaintiff was
already being paid at a rate “within the range for the class of
work[.]”

Plaintiff has not pointed to evidence of any instance

where a female employee was given additional pay for “work of a

20

casual or intermittent nature or on a project basis” which was at
or below her current pay grade level.
By statute, plaintiff was not entitled to receive a TWL or TWA
for the duties he performed which were at or below his pay grade
level, and no genuine dispute of fact has been shown to exist on
that point.
E. Reassignment of Asset Manager Duties
Plaintiff alleges for the first time in his memorandum contra
that he suffered an adverse job action when his asset manager duties
were taken away from him and reassigned to another male employee.
He also argues for the first time in his memorandum contra that the
reassignment of his asset manager duties constituted discriminatory
discipline because female employees who performed poorly either were
not disciplined or were disciplined but received satisfactory
ratings.
The Department correctly notes that plaintiff did not include
these claims in his EEOC charge.

Before filing suit in federal

court under Title VII, a plaintiff must first timely file a charge
of employment discrimination with the EEOC.

Nichols v. Muskingum

College, 318 F.3d 674, 677 (6th Cir. 2003).

“As a general rule, a

Title VII plaintiff cannot bring claims in a lawsuit that were not
included in his EEOC charge.”

Younis v. Pinnacle Airlines, Inc.,

610 F.3d 359, 361 (6th Cir. 2010); see also Kuhn v. Washtenaw
County, 709 F.3d 612, 627 (6th cir. 2013).

Because EEOC complaints

are liberally construed, courts may also consider claims that are
reasonably related to or grow out of the factual allegations in the
EEOC charge.

Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724,

732 (6th Cir. 2006); see also Davis v. Sodexho, Cumberland College

21

Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)(“whe[n] 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”).

However, a district

court lacks subject matter jurisdiction over any matters or claims
outside the scope of plaintiff’s EEOC complaint.

Elkheir v.

Ashcroft, 28 F.App’x 506, 507 (6th Cir. 2002).
In this case, plaintiff makes no mention in his EEOC charge of
the removal of his asset manager duties, which occurred in August
of 2010, see Smith Dep., p. 42, nor does he mention discrimination
in the imposition of discipline.

Rather, the allegations in his

EEOC charge address the assignment of additional responsibilities
to him in the fall of 2011 and the subsequent failure to increase
his pay or to reclassify his position to a higher pay range as a
result of those additional duties.

The allegedly discriminatory

removal of plaintiff’s asset manager duties in 2010 and the alleged
discrimination in the imposition of discipline are not a matter
reasonably related to the allegations in plaintiff’s EEOC charge
which would prompt investigation into that matter by the EEOC. This
court therefore lacks subject matter jurisdiction to consider these
claims.
In addition, plaintiff’s judicial complaint filed in this court
contains no allegations relating to the removal of his asset manager
duties or discrimination in discipline.

Fed. R. Civ. P. 8 requires

that a plaintiff’s pleadings “give the defendant fair notice of what
the claim is and the grounds upon which it rests.”

Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal quotation marks
and alterations omitted); see also Robertson v. Lucas, 753 F.3d 606,

22

623 (6th Cir. 2014). Thus, in Joostberns v. United Parcel Services,
Inc., 166 F.App’x 783 (6th Cir. 2006), the Sixth Circuit held that
the district court properly dismissed plaintiff’s reinstatement
claim under the Family Medical Leave Act made for the first time in
response

to

defendant’s

motion

for

summary

judgment

because

plaintiff failed to plead this claim in his complaint.

See id. at

788

where

(failure

to

reinstate

claim

properly

dismissed

the

complaint did not once mention defendant’s failure to reinstate
plaintiff, and failed to give defendant “fair notice” of plaintiff’s
reinstatement claim).

Plaintiff made no mention of the removal of

his asset management duties or defendant’s disciplinary practices
in his complaint which was filed in this case.

Thus, plaintiff did

not give defendant fair notice of these claims, and they are hereby
dismissed.
F. Equal Pay Act Claim
Plaintiff
complaint.

also

asserted

an

Equal

Pay

Act

claim

in

his

However, he did not respond to defendant’s motion for

summary judgment on that claim.

Under Sixth Circuit law, a

plaintiff is deemed to have abandoned a claim when plaintiff fails
to address it in response to a motion for summary judgment.

See

Brown v. VHS of Michigan, Inc., 545 F.App’x 368, 372 (6th Cir.
2013)(failure to address Equal Pay Act claim in response to summary
judgment motion constituted abandonment of that claim). Therefore,
plaintiff has abandoned his Equal Pay Act claim.

In any event, the

Sixth Circuit has held that when an Equal Pay Act claim and a Title
VII claim arise out of the same set of underlying facts, both
stating a charge of wage discrimination, the standards of liability
under the two statutes are sufficiently similar that the disposition

23

with respect to the two claims should be the same.

See Crowder v.

Railcrew Xpress, 557 F.App’x 487, 494 (6th Cir. 2014). Because this
court has concluded that defendant is entitled to summary judgment
on plaintiff’s Title VII claim, defendant is also entitled to
summary judgment on the Equal Pay Act claim.
IV. Conclusion
In accordance with the foregoing, the court concludes that no
genuine dispute of fact has been shown to exist, and that Department
is entitled to summary judgment on plaintiff’s claims.

The motion

for summary judgment (Doc. 21) is granted, and the clerk is directed
to enter judgment in favor of the defendant.

Date: November 3, 2014

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

24