Marshall v. Belmont County Commissioners et al
Filing
65
OPINION AND ORDER granting 43 Motion for Summary Judgment. Signed by Judge James L Graham on 5/20/2015. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robyn Marshall,
Case No. 2:13-cv-966
Plaintiff,
v.
Judge Graham
Belmont County Board of Commissioners,
et al.,
Magistrate Judge King
Defendants.
OPINION & ORDER
This matter is before the Court on the Defendants’ Motion for Summary Judgment (doc.
43). For the reasons that follow, the Court will GRANT the Defendants’ Motion.
I.
Background
The Plaintiff, Robyn Marshall, is the former Director of the Belmont County 911 Center.
The Defendants are: the Belmont County Board of Commissioners; the three members of the
Board of Commissioners at the time of the Plaintiff’s termination, Ginny Favede, Matthew
Coffland, and Charles Probst; Christine Palmer, the County’s Human Resource director; and
Steve Clark, a County employee.
In 2007, the Belmont County 911 Board hired the Plaintiff as the Director. Marshall Dep.
at 23, doc. 19-1. The next year, in 2008, the 911 Board became an advisory, rather than
governing, board, id. at 28–29, and the Belmont County Board of Commissioners assumed
responsibility for the operation of the 911 Center. As Director of the 911 Center, the Plaintiff
was a department head for the Board of Commissioners. Id. at 34.
1
In 2011, the Plaintiff’s relationship with the 911 Board began to deteriorate. Members of
the 911 Board and the County Sheriff frequently criticized the Plaintiff and questioned her ability
to effectively operate the 911 Center. Id. at 38–40. During this time period, the Plaintiff was
subject to profane language and harassment. For example, prior to a meeting of the 911 Board,
the 911 Board president informed the Plaintiff that she was going to be presented with a t-shirt
that said “Director Cunt” on it. Id. at 39, 51–53. In another instance, while reviewing the
County’s inventory of radios and pagers, the Plaintiff found a note on one of the pagers that said
“[she] could shove that pager up [her] ass.” Id. at 39–40. On another occasion, an assistant chief
of a local fire department told the Plaintiff that he was going to come to her office and
“physically shove 150 page[rs] up [her] ass.” Id. at 40, 59–62, 65.
As a result of this harassment and criticism, the Plaintiff complained to the Board of
Commissioners on multiple occasions. Id. at 43. The Plaintiff discussed the t-shirt incident with
the County’s part-time HR director, Mike Kinter, and explained that she felt she was being
discriminated against because she was a woman. Id. at 55. Specifically, the Plaintiff emphasized
that she operated the 911 Center in the same manner as her predecessor, Cliff Sligar, and that he
had never been subjected to similar treatment. Id. at 55–56.
In October 2011, the Plaintiff then met directly with the Board of Commissioners and
reiterated her concerns regarding the “harassment” and “mistreatment” she was subject to as the
Director of the 911 Center. Id. at 57. The Plaintiff expressed her belief that she was being
mistreated because she was a woman. Id. During the discussion with the Board of
Commissioners, the Plaintiff indicated a willingness to transfer departments to avoid further
problems with the 911 Board. Id. at 57–58. To prevent further problems between the Plaintiff
and the 911 Board, the Board of Commissioners sent a letter to the 911 Board informing its
2
members that the Plaintiff’s participation at the 911 Board’s monthly meetings was to be limited
to the presentation of her monthly report after which she would be excused from attendance.
Marshall Dep. at 91–92; Board of Commissioner’s Letter, doc. 19-3 at 92. With the assistance of
Kinter, the Plaintiff drafted an informal complaint to the Board of Commissioners following her
meeting with them, stating:
I am writing to inform you that I have an informal complaint regarding a hostile
work environment. Ever since April of 2011, I have been under constant scrutiny
by some members of the 911 Board of Directors.
At this time, I do not wish to pursue any formal actions, but I would like
clarification as to who my direct supervision lies with. Is it the Board of
Commissioners or [the 911 Board of Directors]?
Marshall Letter, doc. 19-2 at 28.
The events leading to the Plaintiff’s termination began a year later in November 2012. On
November 18, 2012, the Plaintiff received a call from a dispatcher at the 911 Center. Marshall
Dep. at 192. The dispatcher informed the Plaintiff that the 911 Center was understaffed because
two dispatchers had gone to the parking lot of the 911 Center to assist with a medical emergency
involving an injured child. Id. After that phone call, the Plaintiff traveled to the 911 Center
where she learned that one of the dispatchers, Bri Clark, had left in the ambulance with the
injured child. Id. at 194. Upon Clark’s return to the 911 Center, the Plaintiff called her into her
office and questioned her about why she had left the 911 Center. Id. at 201. The Plaintiff
subsequently sent Clark home for the day while she investigated what happened in the parking
lot and why Clark left the 911 Center. Id.
Later that day, Defendant Steve Clark, Bri Clark’s father and a County employee, called
one of the Commissioners, Defendant Probst, to complain about the Plaintiff’s treatment of his
3
daughter. Id. at 210–12. Defendant Probst informed the Plaintiff of Defendant Clark’s complaint
and discussed the Plaintiff’s decision to send Bri Clark home for the day. Id.
The next morning, November 19, 2012, the Plaintiff met with the Board of
Commissioners and Defendant Christine Palmer, the County’s Human Resource Director, to
discuss the events of the previous day. Id. at 222. Following the meeting, the Commissioners
directed Defendant Palmer to investigate the Plaintiff’s decision to discipline Bri Clark and place
her on administrative leave. Probst Dep. at 52–55, doc. 50. Defendant Palmer interviewed the
Plaintiff, Bri Clark, and other employees that were on duty at the 911 Center on November 18.
Palmer Dep. at 22–26, doc. 40-1. Although Defendant Palmer initially concluded that the
Plaintiff’s handling of the situation was appropriate, Palmer Email, doc. 40-2 at 2, on December
4, the Commissioners directed the Plaintiff to take Bri Clark off administrative leave and permit
her to return to work immediately, Marshall Dep. at 227.
After ordering that Bri Clark be taken off administrative leave, the Commissioners
continued to investigate the events of November 18. Palmer Dep. at 36. The investigation
continued throughout the month of December 2012. As a part-time employee, Bri Clark’s first
day back following the November 18 incident was to be December 27. Marshall Dep. at 228. On
December 21, through a subordinate, the Plaintiff indicated, to Defendant Palmer that she
intended to issue a verbal reprimand to Bri Clark upon Clark’s return to work on December 27.
Dec. 21 Palmer Email, doc. 40-2 at 10. Defendant Palmer relayed this information to the
Commissioners by email and cc’ed the Plaintiff:
Good afternoon[,] Commissioners. I am writing to you per the r[e]quest of Doyle
[the Plaintiff’s co-worker] at the 911 Center.
Doyle called me today and advised me that Robyn [the Plaintiff] asked him to call
me to advise the Board that she is going to issue a verbal reprimand to Bri Clark
4
for leaving her job post back on 11/18/12, UNLESS she receives something in
writing from the Board advising otherwise.
I advised Doyle that based upon the outcome of the investigation, and per my
understanding of that outcome, there is to be no discipline to Bri for her actions
that day.
I advised Doyle that I would send you an email, and copy Robyn, per his request.
Id.
With Bri Clark’s return to work imminent, the Plaintiff contacted Defendant Palmer on
December 26 and asked if the Commissioners had provided her a written letter stating that Bri
Clark was not to be disciplined. Palmer Dep. at 62. Defendant Palmer informed the Plaintiff that
she had not received anything in writing from the Commissioners but advised the Plaintiff that
she would follow-up with the Commissioners the next day. Id.
The next day, December 27, at 4:08 P.M., Defendant Palmer emailed the Plaintiff and
cc’ed the Commissioners, stating that the investigation into the November 18 incident was
complete and, based on the results of that investigation, the Plaintiff was not to take any
disciplinary action against Bri Clark “per the direction of the Board of Commissioners.” Dec. 27
Palmer Email, doc. 19-3 at 166. Unfortunately, the Plaintiff did not read this email until later the
next day. Marshall Dep. at 246–47. At the conclusion of Bri Clark’s shift the following morning
on December 28, the Plaintiff orally reprimanded Bri Clark for her “unauthorized leave” on
November 18. Id. at 246.
Shortly after issuing the oral reprimand, the Plaintiff read Defendant Palmer’s December
27 email for the first time. Id. at 246–47. After reading the email, the Plaintiff shredded a written
record of her reprimand of Bri Clark. Id. at 247–48. Several hours later, Defendant Palmer sent
the Plaintiff an email inquiring as to why the Plaintiff disciplined Bri Clark despite the
Commissioners’ explicit order to the contrary. Dec. 28 Palmer Email, doc. 19–3 at 117. The
5
Plaintiff replied that she had not read Defendant Palmer’s email from the previous day until after
she had orally reprimanded Bri Clark. Marshall Email, doc. 19-3 at 118. An email exchange
between the Plaintiff, Defendant Palmer, and the Defendant Commissioners ensued and a
meeting between the parties was arranged. Marshall Dep. at 254–55.
On December 31, Defendant Palmer informed the Plaintiff that the Commissioners had
placed her on administrative leave pending an investigation into her decision to discipline Bri
Clark on the morning of December 28. Palmer Dep. at 78–79. Early in January 2013, the parties
met at the Commissioners’ office at which time the Plaintiff offered her account of the events
leading up to and including her oral reprimand of Bri Clark on the morning of December 28.
Marshall Dep. at 260–61. Meanwhile, Defendant Palmer investigated those same events, and on
January 11, 2013, recommended to the Commissioners that the Plaintiff’s employment be
terminated because of the Plaintiff’s “disrespectful, insubordinate, dishonest, and deceptive”
actions with respect to her disciplining Bri Clark. Jan. 11 Palmer Email, doc. 40-2 at 12. Later
that day, the Commissioners met and voted to terminate the Plaintiff’s employment. Palmer Dep.
at 89–90.
The Plaintiff subsequently filed an eight-count Complaint (doc. 1) alleging that the
Defendants discriminated against her and wrongfully terminated her employment on account of
her gender and disability and retaliated against her because of her complaints of mistreatment. In
addition, the Plaintiff presented several state law tort claims of intentional infliction of emotional
distress, defamation, and tortious interference with a contract.
After discovery, the Defendants filed a Motion for Summary Judgment (doc. 43). That
Motion is fully briefed and ripe for resolution.
6
II.
Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary
material in the record show that there is “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Longaberger Co. v.
Kolt, 586 F.3d 459, 465 (6th Cir. 2009). The moving party bears the burden of proving the
absence of genuine issues of material fact and its entitlement to judgment as a matter of law,
which may be accomplished by demonstrating that the nonmoving party lacks evidence to
support an essential element of its case on which it would bear the burden of proof at trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Walton v. Ford Motor Co., 424 F.3d 481,
485 (6th Cir. 2005).
The “mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986); see also Longaberger, 586 F.3d at 465. “Only disputed material facts, those ‘that might
affect the outcome of the suit under the governing law,’ will preclude summary judgment.”
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S.
at 248). Accordingly, the nonmoving party must present “significant probative evidence” to
demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore
v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993).
A district court considering a motion for summary judgment may not weigh evidence or
make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379
(6th Cir. 1994). Rather, in reviewing a motion for summary judgment, a court must determine
whether “the evidence presents a sufficient disagreement to require submission to a jury or
7
whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
251–52. The evidence, all facts, and any inferences that may permissibly be drawn from the facts
must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff’s position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med.
Servs., 555 F.3d 543, 549 (6th Cir. 2009).
III.
Discussion
As an initial matter, the Plaintiff does not oppose the Defendants’ Motion for Summary
Judgment on several claims contained in her Complaint. The Court addresses those counts first
and then turns to the claims contested by the parties.
The Plaintiff does not oppose the Defendants’ Motion with respect to her: disability
discrimination and retaliation claims under the Americans with Disability Act and Ohio law
(Count I); state law intentional infliction of emotional distress claim (Count VI); state law
defamation claims (Count VII); or state law tortious interference with contract claim against
Defendant Palmer (Count VIII). Pl.’s Resp. in Opp. at 18, doc. 55. The Defendants’ Motion will
be granted as to those claims accordingly.
The Plaintiff’s remaining claims are: gender discrimination in violation of Title VII and
state law (Counts II and V); retaliation in violation of Title VII and state law (Counts III and IV);
and her claim of tortious interference with contract against Defendant Clark (Count VIII). The
Court addresses each of these claims in turn.
8
A.
Gender Discrimination Claims
The Defendants concede that the Plaintiff can establish a prima facie case of gender
discrimination based on her termination and subsequent replacement by a man. 1 Defs.’ Mot. for
Summ. J. at 32, doc. 43. Instead, the Defendants argue that they had a legitimate, nondiscriminatory reason for terminating the Plaintiff’s employment; in their view, the Plaintiff was
insubordinate when she disciplined Bri Clark despite their explicit order to the contrary and
deceptive and disrespectful when confronted after orally reprimanding Clark. Id. at 30–31, 35–
36.
The Plaintiff assumes, for purposes of the Defendants’ Motion, that the Defendants have
articulated a legitimate, non-discriminatory and non-retaliatory reason for her termination. Pl.’s
Resp. in Opp. at 23–24. However, she argues that the Defendants’ reasons for firing her were
pretextual in nature. Id. at 23–37. According to the Plaintiff, the Defendants’ proffered reasons
for terminating her employment were insufficient motivation for her termination or did not
actually motivate her termination. Id. at 29–37. In support of these arguments, the Plaintiff
emphasizes that: (1) the Defendants ordered an investigation to justify discipline for the Plaintiff,
id. at 25–26; (2) the Defendants violated the County’s nepotism policy when it investigated the
Plaintiff based on a complaint from Defendant Clark, the father of Bri Clark, id.; (3) the
Defendant Commissioners rejected Defendant Palmer’s initial findings, id. at 26–27; (4)
Defendant Palmer credited the statements of third parties that directly contradicted the prior
statements of other third parties, id. at 27; (5) the Defendant Commissioners violated Ohio’s
Open Meeting law, id. at 28–29; (6) the Defendant Commissioners never officially concluded
1
Ohio law claims for gender discrimination are analyzed under the same standard as Title VII claims. See
McKinley v. Skyline Chili, Inc., 534 F. App’x 461, 464 (6th Cir. 2013); Myers v. Cuyahoga Cnty., Ohio, 182 F.
App’x 510, 517 n.3 (6th Cir. 2006).
9
their investigation of the Plaintiff, id.; (7) the Plaintiff did not actually discipline Bri Clark under
the terms of the Union Contract, id. at 30–31; (8) the Plaintiff was not “insubordinate” under the
terms of the County Personnel Policy Manual, id. at 31–32; (9) and the Defendant
Commissioners provided shifting justifications for her termination, id. at 33–37.
The Defendants challenge the underlying factual basis of many of these arguments and
further dispute that the Plaintiff’s arguments demonstrate that the decision to terminate the
Plaintiff’s employment was pretext for gender discrimination and retaliation. Defs.’ Reply at 12–
32.
In the Sixth Circuit, a plaintiff may establish pretext by showing that the employer’s
proffered reason (1) has no basis in fact; (2) did not actually motivate the action; or (3) was
insufficient to warrant the action. Martinez v. Cracker Barrel Old Country Store, Inc., 703 F.3d
911, 915 (6th Cir. 2013). “Regardless of which option is used, the plaintiff retains the ultimate
burden of producing sufficient evidence from which the jury could reasonably reject [the
defendants’] explanation and infer that the defendants intentionally discriminated against him.”
Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003) (citation and internal quotation marks
omitted). “[A] reason cannot . . . be a pretext for discrimination unless it is shown both that the
reason was false, and that discrimination was the real reason.” Seeger v. Cincinnati Bell
Telephone Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (emphases and quotation marks
omitted). “[I]f the plaintiff create[s] only a weak issue of fact as to whether the employer’s
reason was untrue and there [is] abundant and uncontroverted independent evidence that no
discrimination . . . occurred,” the employer is entitled to summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
10
1.
Did Not Actually Motivate the Action
The Plaintiff does not argue that there was no basis in fact for her termination, but instead
asserts that the Defendants’ stated reason for terminating her employment—insubordination and
deceptive and disrespectful behavior—did not actually motivate their decision to fire her.
According to the Plaintiff, circumstantial evidence demonstrates that the Defendant
Commissioners terminated the Plaintiff’s employment because of her gender.
In order to demonstrate that a defendant’s proffered reason did not actually motivate an
adverse employment action, a plaintiff can “attack[ ] the employer’s explanation by showing
circumstances which tend to prove an illegal motivation was more likely than that offered by the
defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial
evidence of discrimination makes it more likely than not that the employer’s explanation is a
pretext, or coverup.” Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir. 2000) (citation and
internal quotation marks omitted). Under this line of attack, “the plaintiff admits the factual basis
underlying the employer’s proffered explanation and further admits that such conduct could
motivate dismissal.” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012)
(citation, internal quotation marks, and alterations omitted). Here, the Plaintiff must show that,
even if she was insubordinate, deceitful, and disrespectful, it was more likely than not the
Defendants terminated the Plaintiff’s employment because of an illegal reason, namely, gender
discrimination.
First, the Plaintiff argues, following the November 18, 2012 incident, the Defendant
Commissioners initiated an investigation into the Plaintiff’s conduct, rather than that of Bri
Clark. According to the Plaintiff, “[a] jury could conclude that the mere commencement of the
investigation, which was intended to justify discipline for [the Plaintiff], was a pretext for
11
discrimination . . . because the investigation was requested to examine the issue of discipline for
Bri Clark, but the Commissioners, instead, decided to investigate [the Plaintiff].” Pl.’s Resp. in
Opp. at 26.
The Court disagrees. The Plaintiff cites no case law and offers nothing more than a
conclusory assertion to support her position. The Plaintiff was not disciplined as a result of the
investigation. Nor did the investigation into the events of November 18 lead to a
recommendation that the Plaintiff be terminated. Even when construed in a light most favorable
to the Plaintiff, to infer from this account of the Defendants’ investigation that gender
discrimination was more likely than not the true reason for the Plaintiff’s termination would
require a speculative leap unsupported by the evidence.
Second, the Plaintiff asserts, the Defendants violated Belmont County’s nepotism policy
when they initiated an investigation into the events of November 18 based on the complaint of
Defendant Clark, a County employee, concerning the Plaintiff’s treatment of his daughter, Bri
Clark. Collecting Sixth Circuit case law, the Plaintiff maintains that “[e]vidence that an employer
failed to follow its own policies creates a question of fact with regard to pretext and precludes
summary judgment.” Pl.’s Resp. in Opp. at 26.
The parties disagree as to whether an employer’s failure to follow its own policies may
demonstrate pretext. On the one hand, the Sixth Circuit has opined that “an employer’s failure to
follow self-imposed regulations or procedures is generally insufficient to support a finding of
pretext.” White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 246 (6th Cir. 2005) (citing
Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996); Randle v. City of
Aurora, 69 F.3d 441, 454 (10th Cir. 1995)). The Sixth Circuit has continued to cite White for this
proposition in a number of cases. See, e.g., Greene v. U.S. Dep’t of Veterans Affairs, No. 14-
12
1312, 2015 WL 1296203, at *5 (6th Cir. Mar. 24, 2015); E.E.O.C. v. Lucent Techs. Inc., 226 F.
App’x 587, 592 (6th Cir. 2007).
On the other hand, one Sixth Circuit panel has characterized White’s statement of the law
as “mere dicta,” unsupported by Supreme Court or published Sixth Circuit precedent. See
Coburn v. Rockwell Automation, Inc., 238 F. App’x 112, 127 n.2 (6th Cir. 2007). Further, the
Plaintiff identifies two cases in which the Sixth Circuit found that an employer’s failure to follow
its own procedures constituted evidence of pretext. In Deboer v. Musashi Auto Parts, Inc., the
employer’s handbook called for counseling of employees prior to their termination or demotion.
124 F. App’x 387, 394 (6th Cir. 2005). There, the defendant failed to counsel the plaintiff prior
to demoting her, and the court considered this evidence to “have some small probative value” as
to whether the employer’s proffered reason for her demotion was pretext for discrimination. Id.
Similarly, in Brewer v. New Era, Inc., the employer produced a number of documents indicating
the existence of a seniority policy concerning layoffs. 564 F. App’x 834, 841 (6th Cir. 2014)
There, the defendant failed to adhere to its seniority policy when it terminated the plaintiff’s
employment as part of a layoff. Id. When considered in combination with other evidence of
pretext, the court concluded that the plaintiff had presented sufficient evidence to create a
genuine issue of material fact as to whether the defendant’s proffered reason for his termination
was pretext for discrimination. Id.
In the Court’s view, whatever tension exists between these cases can be resolved without
difficulty. As a general rule, an employer’s failure to follow its own policies will be insufficient
by itself to establish pretext. However, such a failure may have some probative value when
considered in combination with other evidence of pretext, particularly where an employer’s fails
13
“to follow a policy that is related to termination or demotion,” Deboer, 124 F. App’x at 394
(citing Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 F.3d 414, 421–22 (6th Cir. 1999)).
Here, the County’s nepotism policy states that “a public official/board member is
prohibited from soliciting or using his authority to influence, formally or informally, to secure
the employment of a ‘related’ employee, or to otherwise act with respect to that related
individual’s employment.” Nepotism Policy, doc. 40-2 at 19. Defendant Clark is alleged to have
violated this rule with respect to his daughter’s employment at the 911 Center. Although the
County’s policy is generally related to termination or demotion, on the facts before the Court, it
had a tangential relationship to the Plaintiff’s own termination. At best, it provides weak
evidence of pretext in this case.
Third, the Plaintiff emphasizes, the Defendant Commissioners rejected Defendant
Palmer’s initial findings that Bri Clark should be issued a reprimand for leaving her post and that
the Plaintiff handled the events of November 18 in an appropriate manner. Instead of ending the
investigation, the Defendant Commissioners directed Defendant Palmer to continue to collect
additional information about the events of November 18. According to the Plaintiff, from these
facts, “[a] jury could infer that the Commissioners’ rejection of the investigation findings
demonstrated their desire to find wrongdoing on the part of [the Plaintiff] so that she could be
terminated to put an end to her complaints of hostile work environment and discrimination.” Pl.’s
Resp. in Opp. at 27.
Again, the Plaintiff cites no case law and offers nothing more than a conclusory assertion
to support her position. When construed in the light most favorable to the Plaintiff, the record
indicates that the Defendant Commissioners rejected Defendant Palmer’s initial findings;
Defendant Palmer took statements from witnesses favorable to Bri Clark; those statements
14
contradicted prior statements by witnesses to the events of November 18; and based on the
statement of those witnesses favorable to Bri Clark, the Defendant Commissioners and
Defendant Palmer concluded that Bri Clark should not be subject to any discipline. The
Defendants did not, however, impose any discipline on the Plaintiff. These facts support the
inference that the Defendant Commissioners were interested in exonerating Bri Clark of any
wrongdoing. But they do not support an inference that the Defendants continued the
investigation into the events of November 18 to entrap the Plaintiff or create grounds for
terminating her to cover up their true motive for firing her, gender discrimination.
Fourth, the Plaintiff contends, the Defendants made an official decision concerning the
disciplining of Bri Clark without holding an executive session at a properly-noticed public
meeting, a clear violation of the Ohio Open Meetings law; without reaching any conclusions or
investigations; and without communicating the outcome of the investigation to Defendant Clark.
Pl.’s Resp. in Opp. at 28–29. In light of these facts, the Plaintiff insists that the Defendants’
investigation was a “sham” designed to “seek facts to justify terminating [the Plaintiff’s]
employment.” Id. at 29. It is unclear to the Court how these facts support this conclusion. They
provide little, if any, evidence of pretext on the part of the Defendants.
In the Court’s view, these four arguments support an inference that the Defendants might
have conducted the investigation with the intent to exonerate Bri Clark. However, the grounds
explicitly relied upon by the Defendant Commissioners to justify the Plaintiff’s termination were
not the result of this investigation but occurred after the investigation ended. Based on their
investigation, the Defendant Commissioners concluded that Bri Clark should not be disciplined;
no one suggested that the Plaintiff herself should be disciplined, let alone fired. The Plaintiff’s
arguments go to what motivated the Defendants’ investigation, not what motivated their decision
15
to terminate the Plaintiff. Consequently, these four arguments do not support an inference that
the Plaintiff’s insubordination did not actually motivate the Defendants’ decision to terminate the
Plaintiff’s employment.
Finally, the Plaintiff argues that the Defendants have provided shifting justifications over
time for the Plaintiff’s termination. According to the Plaintiff, the Defendants and their agents,
have made a number of statements offering conflicting reasons for the Plaintiff’s termination,
including:
•
The County’s attorney, Mark Lucas, notified the Plaintiff of her termination
by telephone and represented that she was terminated, “[t]o take the 911
center into a better direction.” At that time, Lucas did not indicate that
Defendants terminated her because of her insubordination or dishonesty;
•
The Defendant Commissioners issued a press release, stating that they
terminated the Plaintiff’s employment because of her decision to discipline
Bri Clark;
•
The Defendant Commissioners informed a third party that they terminated the
Plaintiff’s employment because she brought her husband to a meeting with the
Commissioners;
•
Defendant Commissioners Probst and Coffland testified that they terminated
the Plaintiff’s employment because of her decision to discipline Bri Clark;
•
Defendant Commissioner Favede testified that the Defendant Commissioners
terminated the Plaintiff’s employment because she was insubordinate and
deceptive, not because she disciplined Bri Clark.
Pl.’s Resp. in Opp. at 34–36. In the Plaintiff’s view, these shifting justifications and conflicting
statements are sufficient to create a genuine issue of material fact on the issue of pretext.
“An employer’s changing rationale for making an adverse employment decision can be
evidence of pretext.” Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996).
See also Cicero v. Borg–Warner Auto, Inc., 280 F.3d 579, 592 (6th Cir. 2002) (stating that
shifting justifications can create a genuine issue of fact whether a proffered reason is pretext). In
16
Thurman, the plaintiff, an African-American, worked for the defendant, a common carrier, as a
“casual employee.” 90 F.3d at 1164. He sought to become a full-time employee, and despite
satisfying all of the requirements necessary to become one, the defendant did not hire him and
hired five white employees instead. Id. at 1164–65. When the plaintiff questioned the
defendant’s manager why he had not been hired, the manager made no mention of the plaintiff’s
work performance. Id. at 1167. However, in discovery, the defendant asserted that the plaintiff
was “at best an average worker” and that his performance level waned prior to his applying to
become a full-time employee. Id. Further, in a pretrial order, the defendant asserted that it did not
hire the plaintiff as a regular employee “due to poor performance.” Id. The court concluded that
the defendant’s changing rationale for its decision not to hire the plaintiff warranted an inference
of pretext. Id.
The facts in Thurman are distinct from those presently before the Court. Here, the
Defendants’ explanation for terminating the Plaintiff’s employment has remained consistent
throughout the course of this litigation. The Plaintiff compares her initial conversation with Mark
Lucas, the County’s attorney, following her termination to the press release that the Defendants
issued several days later. Lucas explained that the Plaintiff was terminated to “take the 911
Center in a better direction” while the press release stated that the Plaintiff was terminated
because of her decision to discipline Bri Clark despite the Defendant Commissioners order to the
contrary. Lucas’s “better direction” comment was a generic statement that could reasonably be
read to encompass the press release’s proffered reason for the Plaintiff’s termination. In the
Court’s view, the “logic [of Thurman] applies when an employer’s reason for allegedly
discriminatory actions changes in a material way throughout the stages of litigation.” Kranz v.
Gray, 842 F. Supp. 2d 13, 24 (D.D.C. 2012) (emphasis added) (collecting cases). The
17
explanations offered by Lucas and the press release are not inconsistent with one another and,
therefore, do not constitute the type of material change in rationale required to establish pretext.
The Plaintiff further contends that one of the Defendant Commissioners asserted that she
was terminated for bringing her husband to a meeting with the Commissioners. If true, this could
be considered evidence of a changing rationale for the Plaintiff’s termination. However, a review
of the record does not support the Plaintiff’s position. Scott Mazzulli, the Plaintiff’s brother-inlaw, had a conversation with at least one of the Defendants following the Plaintiff’s termination:
Counsel:
Did you ever have a conversation with Ginny Favede about the
reasons why Mr. Marshall was let go?
Mazzulli:
The reasons why she was let go?
Counsel:
Yes.
Mazzulli:
I’m trying to recall having a conversation. I think I was out here
for a regular commissioners’ meeting that I attend every once in a
while, depending on what’s going on, if it’s dealing with economic
development or whatever. I don’t know if it was Ginny or if it was
Matt that the conversation might – I’m trying to think how it was.
It was something to the effect of why she got terminated or how
she got terminated or whatever. And one of them said something
about she had brought her husband. I don’t recall the exact
conversation.
...
Counsel:
And there had been some mention of Ms. Marshall bringing her
husband to something?
Mazzulli:
Yes.
Counsel:
Do you remember anything else about that conversation?
Mazzulli:
I think somebody said Robyn wanted to take her husband into the
meeting with her, and they wouldn’t allow it to happen. And then a
decision was made to terminate her.
Counsel:
That’s all you remember?
18
Mazzulli:
Yeah.
Mazzulli Dep. at 22–23, doc. 55-4. In the Court’s view, this testimony does not support the
assertion that the Defendants made a statement to the effect that the Plaintiff was terminated
because she brought her husband to a meeting with the Defendants. As a result, it does not
support the conclusion that the Defendants offered shifting justifications for the Plaintiff’s
termination.
According to the Plaintiff, the present case is similar to Pierson v. Quad/Graphics
Printing Corp., 749 F.3d 530 (6th Cir. 2014). In Pierson, the plaintiff worked as a manager at the
defendant’s factory. Id. at 532. As part of a company-wide cost-cutting initiative, executives for
the defendant began to “review every position within the company” to “make a determination on
whether those positions were truly needed.” Id. After reviewing the plaintiff’s position,
executives for the defendant concluded that his position could be terminated without impacting
the defendant’s performance. Id. at 533–34. Following the plaintiff’s termination, a younger
employee assumed his responsibilities, and the plaintiff filed a lawsuit claiming that the
defendant discriminated against him on the basis of his age. Id. at 534.
To demonstrate pretext, the plaintiff emphasized the shifting justifications offered by the
defendant. Initially, the defendant asserted that the plaintiff was terminated because his position
“could be eliminated without hardship to the company.” Id. at 541. Later, however, the defendant
stated that the plaintiff was terminated because he was not a “team player.” Pierson, 749 F.3d at
541. When the defendant actually informed the plaintiff of his firing, the defendant made no
mention of any performance-related problems. Id. But when the plaintiff questioned the
defendant about appealing his termination, a company representative informed him that he was
terminated for performance reasons and not his age. Id. Because these shifting justifications
19
raised an inference that the defendant’s proffered reasons for the plaintiff’s termination were
false, the court of appeals reversed the district court’s grant of summary judgment in the
defendant’s favor. Id.
Pierson, like Thurman, provides a clear example of circumstances under which a court
can conclude that an employer’s changing rationale for making an adverse employment decision
rises to the level of pretext. But Pierson is of little help to the Plaintiff here. As discussed above,
unlike Pierson, the record in this case does not evidence shifting justifications for the Plaintiff’s
termination.
More concerning is the Plaintiff’s contention that the Defendant Commissioners do not
agree why they terminated the Plaintiff’s employment. According to the Plaintiff, Defendant
Favede’s testimony directly contradicts Defendant Probst’s and Defendant Coffland’s assertion
that the Plaintiff was terminated for disciplining Bri Clark. “Inconsistent reasons given by key
decision-makers as to the reason for the firing can provide evidence of pretext.” Gaglioti v.
Levin Grp., Inc., 508 F. App’x 476, 483 (6th Cir. 2012) (citing Tinker v. Sears, Roebuck & Co.,
127 F.3d 519, 523 (6th Cir. 1997)). In Gaglioti, the defendant’s president and comptroller
offered contradictory explanations for the plaintiff’s termination; the president maintained that
the plaintiff was fired for performance reasons while the comptroller asserted that the plaintiff
was terminated because of lack of work and insisted that his “work performance ‘didn’t have
anything to do with why he was fired.’” 508 F. App’x at 482–83. Similarly, in Tinker, the court
reviewed the testimony of the defendant’s managers and found that two of the managers
recommended terminating the plaintiff’s employment for “entirely different” reasons. 127 F.3d
at 523. In both cases, the Sixth Circuit concluded that these inconsistencies demonstrated a
20
genuine issue of material fact concerning the defendant’s proffered reasons for terminating the
plaintiff.
Here, the Plaintiff outlines the perceived inconsistencies in the Defendant
Commissioners’ deposition testimony concerning their decision to fire her:
Both Commissioners Probst and Coffland agree that the sole reason for
Ms. Marshall’s termination was her issuing discipline to Bri Clark.
Commissioners Probst and Coffland also agree that Ms. Marshall was not
insubordinate in either asking that the commissioners communicate in writing or
in disagreeing with decision made by the commissioners.
In contrast, Commissioner Favede adamantly stated, “She [Ms. Marshall]
was not terminated for disciplining.” Commisioner Favede testified that Ms.
Marshall was terminated for being “insubordinate” and “deceptive.” Favede
describes the “insubordination” as: 1.) requesting the commissioners put
something in writing regarding Bri Clark, 2.) having a “general attitude” of
insubordination, 3.) being “angry,” and 4.) disagreeing with the decision(s) of the
commissioners. Favede describes the “deception” as Ms. Marshall not notifying
Ms. Palmer or the commissioners that Ms. Marshall had issued discipline to Bri
Clark before Ms. Marshall received the email on December 28, 2012.
Pl.’s Resp. in Opp. at 35–36 (internal citations omitted). In light of these facts, the Plaintiff
concludes that “[t]he explanation provided by the Commissioners directly conflict with one
another regarding the reason(s) for Ms. Marshall’s termination.” Id. at 36.
The record does not support the Plaintiff’s characterization of Defendant Favede’s
deposition testimony. At her initial deposition, Defendant Favede testified concerning her
decision to terminate the Plaintiff’s employment:
Counsel:
Did you vote to terminate Robyn Marshall?
Favede:
Yes, I did.
Counsel:
What were the reasons for that?
Favede:
Insubordination, the actions that took place in regards to
reprimanding her were considered deceptive. It was a very difficult
and almost volatile situation. Ms. Palmer had again made a
recommendation and this time we did agree with her
recommendation and it was to relieve her of her duties.
21
Counsel:
Anything else? Any other reasons that Ms. Marshall was
terminated?
Favede:
It was [Ms. Palmer’s] recommendation and our agreement that she
was deceptive in the manner in which she handled this situation
and she was insubordinate in the way she reacted to the
commissioners.
Counsel:
Any other reason she was terminated?
Favede:
No, not to my recollection.
Favede Dep. at 96–97, doc. 36-1. Defendant Palmer recommended that the Plaintiff be
terminated because she was “disrespectful, insubordinate, dishonest, and deceptive” with respect
to her disciplining Bri Clark. Palmer Dep. at 84. Specifically, Defendant Palmer found that the
Plaintiff was insubordinate because she disciplined Bri Clark despite Defendant Palmer
instructing her by email and telephone on November 21 that the Defendant Commissioners did
not want Bri Clark to be disciplined. Id. at 86–87. In adopting Defendant Palmer’s
recommendation, Defendant Favede endorsed her finding that the Plaintiff was insubordinate, as
did Defendants Probst and Coffland.
Continuing, Defendant Favede explained why she believed the Plaintiff was
insubordinate:
Counsel:
How was Robyn Marshall insubordinate?
Favede:
Refusing to – demanding something in written form, refusing to do
what we had decided, demanding it in written form and then
subsequently doing it anyways.
Counsel:
So she was insubordinate by asking that the board’s direction be
placed in writing?
...
Favede:
Yes.
22
Counsel:
And . . . how was she insubordinate?
...
Favede:
I think in general the entire attitude she had was insubordinate.
Counsel:
In what way?
Favede:
She was very angry.
...
Counsel:
Is it insubordinate for a director to disagree with the conclusions of
the Board of Commissioners? Is that insubordinate?
Favede:
Yes.
Counsel:
So directors aren’t allowed to disagree; is that right?
Favede:
Once the Board of Commissioners have made a formal decision,
it’s inappropriate.
Counsel:
That’s not what I asked. I asked if it’s insubordinate.
Favede:
Depends on the circumstances.
Counsel:
Well, in this circumstance was it –
Favede:
Yes, it was.
Counsel:
It was insubordinate for her to disagree with your decision?
Favede:
There’s a difference between disagreeing and going ahead and
going against the wishes of the board.
Counsel:
Well, those are two different things. You told me that she was
insubordinate by disagreeing.
Favede:
She was insubordinate by taking the action when we make the
decision not to discipline her.
Counsel:
Was she insubordinate by disagreeing with your decision?
Favede:
Yes.
23
Id. at 97–100. From these statements, the Plaintiff concludes that Defendant Favede terminated
her because she: 1) requested the commissioners put something in writing regarding Bri Clark, 2)
had a “general attitude” of insubordination, 3) was “angry,” and 4) disagreed with the decisions
of the commissioners. Pl.’s Resp. in Opp. at 35–36. But in so concluding, the Plaintiff ignores
Defendant Favede’s statement that the Plaintiff “was insubordinate by taking action when we
[made] the decision not to discipline [Bri Clark].” Favede Dep. at 100, doc. 36-1. This is
consistent with Defendant Favede’s original statement that she terminated the Plaintiff on the
basis of Defendant Palmer’s recommendation.
Finally, Defendant Favede explained her belief that the Plaintiff was deceptive after
disciplining Bri Clark on the morning of December 28:
Counsel:
You also said that Ms. Marshall was deceptive. How was she
deceptive?
Favede:
She disciplined Miss Clark early in the morning, then got the
email, then had a conversation with Christi Palmer, didn’t share
that, didn’t share it with us, didn’t share it with the HR director
who had been handling this over a month, and we weren’t notified
until Ms. Clark contacted Ms. Palmer and told her.
Counsel:
So she was deceptive by not telling you she issued the reprimand
before she received the email and that she had, in fact, when she
got the email, shredded the reprimand? She was deceptive by not
saying that; is that what you’re telling me?
Favede:
Knowing that she knew beyond that email that came on that
particular day that she had known that we did not want her
disciplined, yes.
Id. at 100–01. To the extent that Defendant Favede justified her vote to terminate the Plaintiff’s
employment based on the Defendant’s alleged deceptive behavior, that justification is not
inconsistent with the Defendant Commissioners’ insubordination rationale. Absent inconsistent
24
justifications, this evidence does not support a finding of pretext. See Gaglioti, 508 F. App’x at
483 (6th Cir. 2012) (citing Tinker, 127 F.3d at 523).
At her second deposition, Defendant Favede sought to clarify an apparent misstatement
regarding the authority of a department head, such as the Plaintiff, to issue discipline to County
employees:
Favede:
[W]hat I wanted to convey is that apparently it is common that
department heads do internal disciplining as far as writing up
employees to the extent of – until you get to the point of
suspension or termination and then it’s brought . . . to the board of
commissioners.
Counsel:
Okay. So what you’re talking about is your prior testimony . . . that
you did not believe that any of the department heads that are under
the purview of the county commissioners issued any discipline to
their employees without first getting the approval of the
commissioners; is that the testimony you’re referring to?
Favede:
Yes.
...
Counsel:
And you have learned that . . . county department heads . . . do . . .
issue discipline, at least up to suspensions, without getting the
permission of consulting with the county commissioners, correct?
Favede:
Yes.
Favede Dep. at 5, doc. 49-1.
In light of this new information, Defendant Favede elaborated on her decision to vote in
favor of terminating the Plaintiff’s employment:
Counsel:
And has this new information that you’ve learned changed any of
your testimony or opinions regarding how Robyn Marshall’s case
was handled?
Favede:
In how it was handled, when I speak for myself I was addressing –
in my actions I was addressing that particular action that was taken
with everything else being separated from it, you know. We asked
her not to do it. She chose to do it. My decision was based on that.
25
...
Counsel:
I just want to clarify, because I’m not sure I actually got an answer,
and my question was knowing what you know now, does that
change any of your opinions or positions about the way Robyn’s
case was handled? I’m not sure you actually answered that
question.
Favede:
In regards to writing Bri up, we specifically asked her not to do it.
The action was taken based upon the insubordination of that
action.
...
Counsel:
My only question is has anything changed about your opinion
about getting involved in this discipline based upon what you
know now?
Favede:
There are two issues in my mind that are at hand. One is the fact
that directors are disciplining their employees. The second one
here is that we specifically asked for a specific employee and a
specific circumstance not be disciplined.
Counsel:
I don’t understand your answer. My only question is have you
changed –
Favede:
She wasn’t terminated for disciplining. She was terminated for
disobeying or being insubordinate – excuse me, I Don’t like the
word disobeying, insubordinate to her three board of commissioner
bosses.
Counsel:
And the insubordination was based upon the fact that Christine
Palmer sent her an email telling her not to issue the discipline; is
that correct?
Favede:
And she took action anyway, yes.
Id. at 9–12. When read in isolation, Defendant Favede’s statement that Bri Clark “wasn’t
terminated for disciplining” appears inconsistent with the testimony of Defendant Probst and
Defendants Coffland. However, when read in context, Defendant Favede’s statement offers no
support for the Plaintiff’s argument. As Defendant Favede made clear above, the Plaintiff’s
26
decision to discipline Bri Clark in and of itself was not the cause of her termination. Rather, the
Plaintiff was terminated for disciplining Bri Clark contrary to the Defendant Commissioners’
explicit order. By contravening the Defendant Commissioners’ order, the Plaintiff was
insubordinate, and all three Defendant Commissioners cited this fact to justify their decision to
terminate the Plaintiff’s employment.
A fair reading of the record does not support the Plaintiff’s argument that the Defendant
Commissioners offered inconsistent reasons for terminating her employment. Instead, the
evidence before the Court demonstrates that all three Defendant Commissioners terminated the
Plaintiff based on her insubordination and that Defendant Favede voted to terminate the
Plaintiff’s employment for additional, but not inconsistent, reasons. Under these circumstances,
an inference of pretext is not warranted in this case.
2.
Insufficient to Warrant the Action
The Plaintiff also argues that the Defendants’ proffered reasons were insufficient to
justify her termination. According to the Plaintiff, the circumstances surrounding the
investigation into the events of November 18 were confusing to all involved and she rescinded
Bri Clark’s reprimand after reading Defendant Palmer’s email. Moreover, the Plaintiff maintains
that under the terms of the Union Contract she did not actually “discipline” Bri Clark, and, under
the terms of the County’s Personnel Policy Manual, she was not actually “insubordinate.” In the
Plaintiff’s view, “[t]he drastic step of immediate termination of [the Plaintiff’s] employment
does not fit the proverbial crime.” Pl.’s Resp. in Opp. at 30.
This “category of pretext consists of evidence that other employees, particularly
employees outside the protected class, were not disciplined even though they engaged in
27
substantially identical conduct to that which the employer contends motivated its discipline of
the plaintiff.” Chattman v. Toho Tenax America, Inc., 686 F.3d 339, 349 (6th Cir. 2012)
(quoting Manzer, 29 F.3d at 1084). In other words, the Plaintiff must establish that she was
treated less favorably than similarly-situated, non-protected employees. Manzer, 29 F.3d at 1084.
“A showing of the third type of pretext is a direct attack on the credibility of the employer's
proffered motivation for disciplining the plaintiff and, if shown, ‘permits, but does not require,
the factfinder to infer illegal discrimination from the plaintiff’s prima facie case.’” Chattman,
686 F.3d at 349 (quoting Manzer, 29 F.3d at 1084). “In other words, it creates a genuine, triable
issue of material fact.” Chattman, 686 F.3d at 349.
Here, the Plaintiff has not presented any “evidence that other employees, particularly
employees outside the protected class, were not disciplined even though they engaged in
substantially identical conduct to that which the employer contends motivated its discipline of
the plaintiff.” Chattman, 686 F.3d at 349. Absent such evidence, the Plaintiff’s argument that the
Defendants’ proffered reasons were insufficient to justify her termination fails.
The Plaintiff cites a number of cases to support her argument that her actions were
insufficient to justify her termination. In Hill v. Air Tran Airways, the plaintiff worked as a
customer service agent for the defendant. 416 F. App’x 494, 495 (6th Cir. 2011). The plaintiff
had an acrimonious relationship with his supervisor, who reprimanded the plaintiff on multiple
occasions for reasons ranging from the plaintiff’s tardiness to the plaintiff arguing with
customers. Id. Suspecting that racial discrimination was motivating his supervisor’s conduct, the
plaintiff complained of his treatment to the station manager and filed a formal complaint Id. at
496.
28
Several months after filing his complaint, on April 10, 2007, the plaintiff was assigned to
work as the primary ticket counter agent for several early morning flights. Id. The plaintiff
checked in most of the passengers for two of those flights and then took a 15 minute coffee
break. Id. While the plaintiff presented evidence that coffee breaks were accepted as part of an
informal company policy, other employees testified to the contrary. Id. at 496 n.2. After
returning from his break, the plaintiff’s co-workers did not help him complete the check-in
process for the remaining passengers. Hill, 416 F. App’x at 496. This led to a confrontation
between the plaintiff, his co-workers, and his supervisor. Id. As a result of that confrontation, the
plaintiff was ultimately suspended and terminated. Id. at 497.
To justify the plaintiff’s termination, the defendant argued, inter alia, that the plaintiff
was terminated for taking an unauthorized break. Id. at 499. In response, the plaintiff asserted
that this was a pretext for retaliation, arguing that his taking of an allegedly unauthorized break
was insufficient to motivate the defendant’s decision to terminate him. Id. at 500. Agreeing with
the plaintiff, the court of appeals emphasized that the plaintiff presented evidence that similarlysituated co-workers also took a break on the morning of April 10, 2007, but that they were not
terminated and were instead given only written warnings. Id. As a result, the court concluded that
the plaintiff had presented sufficient evidence to create a genuine issue of material fact as to the
issue of pretext. Hill, 416 F. App’x at 501.
Hill is therefore of little help to the Plaintiff here. Unlike the present case, the plaintiff in
Hill identified similarly-situated co-workers who engaged in the same conduct as him, but were
not terminated as a result of that conduct. Because the Plaintiff does not point to similar evidence
here, her argument that the Defendants’ proffered reasons were insufficient to justify her
termination fails under the third category of demonstrating pretext.
29
Although the Plaintiff’s argument is insufficient to establish pretext under the third
category of the tripartite pretext formula, the Sixth Circuit has reminded courts that with respect
to that formula “it is important to avoid formalism in its application, lest one lose the forest for
the trees.” Chen v. Dow Chem. Co., 580 F.3d 394, 402 n.4 (6th Cir. 2009). As the Chen court
explained:
Pretext is a commonsense inquiry: did the employer fire the employee for the
stated reason or not? This requires a court to ask whether the plaintiff has
produced evidence that casts doubt on the employer’s explanation, and, if so, how
strong it is. One can distill the inquiry into a number of component parts, and it
can be useful to do so. But that should not cause one to lose sight of the fact that
at bottom the question is always whether the employer made up its stated reason
to conceal intentional discrimination.
580 F.3d at 402 n.4 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993); Forrester
v. Rauland-Borg Corp., 453 F.3d 416 (7th Cir. 2006)). See also Tingle v. Arbors at Hilliard, 692
F.3d 523, 530 (6th Cir. 2012) (stating, with respect to the three categories for demonstrating
pretext, that “we have never regarded those categories as anything more than a convenient way
of marshaling evidence and focusing it on the ultimate inquiry: ‘did the employer fire the
employee for the stated reason or not?’ As we have stated, ‘at bottom the question is always
whether the employer made up its stated reason to conceal intentional [discrimination].’”).
With this admonition in mind, the Court must consider whether the evidence presented by
the Plaintiff casts doubt on the Defendant’s explanation for terminating her employment. The
Defendants assert that they terminated the Plaintiff’s employment because she disciplined Bri
Clark despite their order to the contrary. The Plaintiff maintains that: (1) she did not discipline
Bri Clark under the terms of the Union Contract; (2) she rescinded Bri Clark’s discipline after
reading Defendant Palmer’s email; and (3) she was not insubordinate under the terms of the
30
County Personnel Policy Manual. The Defendants contest the factual accuracy of these
arguments. Defs.’ Reply at 27–28.
Even assuming that the Plaintiff’s arguments are correct as a matter of fact, the Court
does not believe they support an inference of pretext in this case. Nothing in the record suggests
that the Defendant Commissioners relied on the formal definitions of “discipline” and
“insubordination” in terminating the Plaintiff’s employment. Instead, the record demonstrates
that Defendants employed those terms in a colloquial fashion, consistent with their common
usage.
On December 21, 2012, the Defendant Commissioners, through Defendant Palmer,
informed the Plaintiff by telephone and email that she should not discipline Bri Clark when
Clark returned to work. Nonetheless, on Bri Clark’s first day back at work after the November 18
incident, the Plaintiff issued Bri Clark an oral reprimand. The Plaintiff maintains that, when she
issued the oral reprimand, she was confused as to the status of the Defendants’ investigation into
the events of November 18 and that the Defendants failed to provide her anything in writing
directing her not to discipline Bri Clark. According to her, the decision to terminate her
employment was a drastic and irrational response to her decision to orally reprimand of Bri
Clark.
Perhaps another more forgiving employer would not have terminated the Plaintiff’s
employment under these circumstances. But that such an employer might exist does not support
an inference the Defendants made up their stated reason for terminating the Plaintiff’s
employment to conceal intentional discrimination.
3.
The Plaintiff has failed to establish pretext
31
To demonstrate pretext, a plaintiff must show that her employer’s proffered reason for
terminating her employment “was not the real reason for its action, and that the employer’s real
reason” was discrimination. E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) (en
banc). The Defendants’ investigation into the events of November 18 and their handling of the
Plaintiff’s termination were not models of human resource management, but “so long as an
employer honestly and reasonably believed the nondiscriminatory reason for its action, the
employer need not use an ‘optimal’ decision-making process that leaves ‘no stone unturned.’”
Crabtree v. Sec’y, U.S. Dep’t of Homeland Sec., No. 14-3868, — F. App’x —, 2015 WL
1948267, at *4 (6th Cir. May 1, 2015) (quoting Seeger v. Cincinnati Bell Tel. Co., LLC, 681
F.3d 274, 285 (6th Cir. 2012)). Here, all three Defendant Commissioners testified that they
believed that the Plaintiff was insubordinate when she disciplined Bri Clark despite their explicit
instructions to the contrary and that they terminated her employment accordingly.
Although the Court may not have terminated the Plaintiff’s employment if it were in the
Defendants’ position, the Court is not “a super personnel department, overseeing and second
guessing employers’ business decisions.” Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th
Cir. 2006) (citation and internal quotation marks omitted). Ultimately, there is insufficient
evidence for a jury to conclude that the Defendants’ reasons for terminating the Plaintiff were
false and that discrimination was the true reason for the Plaintiff’s termination. The record before
the Court contains no credible evidence of pretext. The Defendants are therefore entitled to
summary judgment. See Reeves, 530 U.S. at 148.
B.
Retaliation Claims
32
Next, the Plaintiff argues that the Defendants terminated her employment in retaliation
for her ongoing complaints regarding a hostile work environment and gender discrimination. 2
The Defendants respond that (1) the Plaintiff did not engage in protected activity in 2012; (2)
there is no causal connection between the Plaintiff’s complaints of sexual harassment and her
termination; and (3) the Plaintiff failed to establish that the legitimate, nondiscriminatory reasons
proffered for her termination were pretextual in nature. Defs.’ Mot. for Summ. J. at 39–40;
Defs.’ Reply at 5–32. The Plaintiff vigorously contests these arguments. Pl.’s Resp. in Opp. at
20–23; Pl.’s Sur Reply, doc. 60.
Title VII prohibits employers from retaliating against any employee who (1) “opposed
any practice made an unlawful employment practice by this subchapter,” or (2) “made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under
this subchapter.” 42 U .S.C. § 2000e–3(a). To establish a prima facie case of retaliation under
Title VII, the plaintiff must demonstrate that: (1) he engaged in protected activity; (2) the
defendant(s) knew of that protected activity; (3) the defendant(s) took a materially adverse action
against him; and (4) a causal connection existed between the materially adverse action and the
protected activity. E.E.O.C. v. New Breed Logistics, — F.3d —, 2015 WL 1811018, at *6 (6th
Cir. Apr. 22, 2015) (citing Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013)). If a plaintiff
establishes a prima facie case, the burden of production shifts to the defendant to provide a
legitimate, nonretaliatory reason for its materially adverse action. New Breed Logistics, 2015
WL 1811018, at *6 (citing Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.
1990)). If the defendant satisfies this burden, the plaintiff must then show that the defendant’s
proffered reasons were a pretext for retaliation. New Breed Logistics, 2015 WL 1811018, at *6
2
Ohio law claims for retaliation are analyzed under the same standard as Title VII claims. Imwalle v.
Reliance Med. Prods., Inc., 515 F.3d 531, 544 (6th Cir. 2008).
33
(citing Hicks, 509 U.S. at 515–16; Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 256,
(1981)).
1.
Protected Activity/Causal Connection
The Plaintiff maintains that she continued to complain of a hostile work environment and
gender discrimination to the Defendants throughout 2012 and until she was fired in January
2013. According to the Plaintiff, these complaints constituted protected activity. In support of her
argument, the Plaintiff relies on the deposition testimony of Defendant Probst and her own
affidavit. See Pl.’s Resp. in Opp. at 20–23; Pl.’s Sur-Reply at 1–8.
The Defendants argue that the Plaintiff’s 2012 complaints did not rise to the level of
protected activity. In their view, the Plaintiff mischaracterizes the deposition testimony of
Defendant Probst. Further, they argue, her affidavit offers only conclusory allegations that are
insufficient to withstand a motion for summary judgment. According to the Defendants, the
Plaintiff, at best, made vague complaints of unlawful behavior which are insufficient to rise to
the level of protected activity.
On the record before the Court, the Defendants have the better of the argument. A vague
complaint of discrimination is insufficient to rise to the level of protected activity. Blizzard v.
Marion Tech. Coll., 698 F.3d 275, 288 (6th Cir. 2012) (citation omitted). There is no dispute that
the Plaintiff engaged in protected activity in 2011. Indeed, the conduct of the 911 Board
members and various County employees complained of by the Plaintiff then—the “Director
Cunt” t-shirt and threats of physical assault—was reprehensible and could have supported a
viable sexual harassment or hostile work environment claim. However, the question before the
Court now is whether the Plaintiff made specific complaints of a hostile work environment and
34
gender discrimination to the Defendant Commissioners during 2012. Here, the record indicates
that she did not.
Defendant Probst testified to the following concerning the Plaintiff’s 2012 complaints:
Counsel:
Were you aware that there were some issues when Robyn Marshall
was the 911 director about her complaining about her treatment by
the 911 Board?
Probst:
Yes.
Counsel:
What were you aware of exactly?
Probst:
That there was a shirt that somebody said that they were going to
have made.
Counsel:
The one that said Director Cunt?
Probst:
Yes, ma’am.
...
Counsel:
What else did you know –
Probst:
From time to time Robyn would tell me that she thought that she
was being treated unfairly, that they don’t treat – not treating her
the same as they treated Cliff [the former director of the 911
Center].
Counsel:
Do you ever remember a conversation with Robyn in which she
said something to the effect of, “I wouldn’t be treated this way if I
had a swinging dick?”
Probst:
I don’t remember that.
Counsel:
You were aware that she was complaining she was being treated
differently because she was a woman, weren’t you?
Probst:
No.
Counsel:
No?
Probst:
No.
35
Counsel:
Well, you just told me that she complained she was being treated
differently than Cliff, who’s a man. What did you think –
Probst:
But there was nothing beyond that. She would make that statement,
but why? I can’t answer the question why, that’s why I’m saying
no.
Counsel:
Well, that’s my question to you. You didn’t draw an inference
from that?
Probst:
No. I mean, when she would tell me, we would talk about it and
see what was going on, but she never really got into detail. Robyn
never got into detail about why she was being treated differently.
...
Counsel:
So how often did you talk with Robyn [the Plaintiff] about her
complaints?
Probst:
Sporadically from time to time when I would show up for meeting,
come to the 911 Board meetings or stop in.
Counsel:
Did she continue to complaint to you right up to the time that she
was terminated off and on?
Probst:
Yes.
Probst Dep. at 38–41. A fair reading of this exchange is that the Plaintiff complained about her
treatment as the 911 Director to Defendant Probst until the time she was terminated, but
Defendant Probst did not understand her to be complaining about gender discrimination because
she did not “go[] into detail about why she was being treated differently,” id. at 40.
The Plaintiff also points to her own sworn affidavit as evidence of her engaging in
protected activity in 2012. But given its conclusory nature, it offers no support for her position.
In her affidavit, the Plaintiff avers only that “[her] complaints to the Commissioners regarding
sexual harassment and gender discrimination continued right up until the time that [she] was
terminated.” Marshall Aff. at ¶ 4, doc. 55-12. Absent any specific details, the Plaintiff’s affidavit
fails to establish that she engaged in protected activity in 2012.
36
Because the Plaintiff has failed to establish that she engaged in protected activity in 2012,
she cannot demonstrate a causal connection between her 2011 protected activity and her
termination. “In order to establish a causal connection between the protected conduct and the
adverse action, [a] plaintiff must produce enough evidence of a retaliatory motive such that a
reasonable juror could conclude that the [adverse employment action] would not have occurred
but for his engagement in protected activity.” Eckerman v. Tenn. Dep’t of Safety, 636 F.3d 202,
209 (6th Cir. 2010). A causal link can be shown through direct or circumstantial evidence. Dye
v. Office of the Racing Comm’n, 702 F.3d 286, 305 (6th Cir. 2012). The Sixth Circuit has
recognized that, in some cases, temporal proximity alone between the protected activity and the
adverse employment action may be sufficient to establish a causal connection in a retaliation
case. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523–26 (6th Cir. 2008).
Here, the Plaintiff’s 2011 protected activity occurred more than a year prior to her
termination. The lack of temporal proximity between this protected activity and her termination
prevents her from establishing a causal connection between the two events. See Dixon v.
Gonzales, 481 F.3d 324, 334 (6th Cir. 2007) (“This Court typically [has] found the causal
connection element [is] satisfied only where the adverse employment action occurred within a
matter of months, or less, of the protected activity”). Therefore, the Defendants are entitled to
summary judgment on the Plaintiff’s retaliation claims.
2.
Pretext
Assuming arguendo that the Plaintiff established a prima facie case of retaliation, her
retaliation claims fail nonetheless. The Plaintiff has conceded that the Defendants had legitimate,
nonretaliatory reasons for her termination, but she has failed to demonstrate that the Defendants’
37
proffered reasons for terminating her employment were pretextual. For the same reasons as
discussed in Section (A)(1)-(3) supra, the Court will grant the Defendants’ Motion for Summary
Judgment with respect to the Plaintiff’s retaliation claims.
C.
Tortious Interference
The Plaintiff asserts that Defendant Clark tortiously interfered with the Plaintiff’s
business relationship with the County. Specifically, the Plaintiff alleges that Defendant Clark
complained to Defendant Probst regarding her disciplining of Bri Clark, “initiating the sequence
of events culminating in [her] firing.” Compl. at ¶ 116. According to the Plaintiff, Defendant
Clark lobbied for her termination and informed a third party, Dustin Hudak, that he would “have
her [the Plaintiff’s] ass.” Id. at ¶ 121.
Defendant Clark maintains that his complaints to the Defendant Commissioners were
privileged and therefore the Plaintiff cannot prevail on her claim for tortious interference. In the
alternative, Defendant Clark asserts the Plaintiff “has pointed to no evidence in the record which
shows that the Commissioners terminated her employment as a result of her actions on
November 18, 2012, as reported to them by Steve Clark.” Defs.’ Reply at 36. The Defendant
disagrees, and insists that she has presented evidence that Defendant Clark’s complaints caused
the Defendant Commissioners to terminate her employment.
“The torts of interference with business relationships and contract rights generally occur
when a person, without a privilege to do so, induces or otherwise purposely causes a third person
not to enter into or continue a business relation with another, or not to perform a contract with
another.” A & B–Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council,
651 N.E.2d 1283, 1294 (Ohio 1995). To recover on a claim for tortious interference with a
38
business relationship, a plaintiff must establish: “(1) a business relationship; (2) the wrongdoer's
knowledge thereof; (3) an intentional interference causing a breach or termination of the
relationship; and (4) damages resulting therefrom.” Ginn v. Stonecreek Dental Care, — N.E.3d
—, 2015 WL 1882536, at *3 (Ohio Ct. App. Apr. 27, 2015). “In contrast, the elements of
tortious interference with contract are ‘(1) the existence of a contract, (2) the wrongdoer’s
knowledge of the contract, (3) the wrongdoer’s intentional procurement of the contract’s breach,
(4) the lack of justification, and (5) resulting damages.’” Id. (quoting Fred Siegel Co., L.P.A. v.
Arter & Hadden, 707 N.E.2d 853, 858 (1999)). With respect to either claim, “the plaintiff must
show that the interference was without justification or privilege.” Casciani v. Critchell, No. C–
140338, 2015 WL 1227849, at *6 (Ohio Ct. App. Mar. 18, 2015).
Although the parties’ briefs concerning this issue leave something to be desired, under
any formulation of a tortious interference claim, Defendant Clark is entitled to summary
judgment. The Court assumes arguendo that Defendant Clark’s comments were not privileged,
but even with this assumption in place, the Plaintiff fails to demonstrate that Defendant Clark
induced or otherwise purposely caused the Defendant Commissioners not to continue a business
relationship with the Plaintiff, or not to perform a contract with the Plaintiff.
The Plaintiff specifically identifies as problematic Defendant Clark’s statement to Dustin
Hudak that “[the Plaintiff’s] ass is in trouble and I’m going to push this as far as I can.” To the
extent the Plaintiff’s brief can be read to argue that this statement constituted tortious
interference, the Court disagrees. Defendant Clark made this statement to a third party, Hudak, a
dispatcher at the 911 Center. Clark Dep. at 22. The record before the Court does not indicate that
Hudak had any authority over the terms and conditions of the Plaintiff’s employment. Further,
there is no evidence that Hudak informed the Defendant Commissioners of Defendant Clark’s
39
comment or that Defendant Clark’s comment affected the Defendant Commissioners’ decision to
terminate the Plaintiff’s employment.
The Plaintiff argues more generally that Defendant Clark’s complaints to the Defendant
Commissioners resulted in her termination. But, as previously explained, when construed in the
light most favorable to the Plaintiff, the record demonstrates that the investigation that followed
Defendant Clark’s complaints was not the cause of the Plaintiff’s termination. Rather, it was the
Plaintiff’s decision to discipline Bri Clark despite instruction from the Defendant Commissioners
not to do so that resulted in the Plaintiff’s termination. Defendant Clark’s complaints did not
cause the termination of the relationship between the parties, and, therefore, the Plaintiff’s
tortious interference claim fails. See McNett v. Worthington, No. 15–11–05, 2011 WL 4790759,
at *5 (Ohio Ct. App. Oct. 11, 2011) (defendant entitled to summary judgment on the plaintiff’s
tortious interference with an employment relationship “because the evidence failed to
demonstrate that [the defendant’s] statements were the proximate cause of [the plaintiff’s]
termination of employment”).
IV.
Conclusion
For the foregoing reasons, the Court GRANTS the Defendants’ Motion for Summary
Judgment (doc. 43).
IT IS SO ORDERED.
S/ James L Graham
James L. Graham
UNITED STATES DISTRICT JUDGE
Date: May 20, 2015
40
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?