Dewalt v. Harrison County Commissioners
OPINIONS AND ORDER granting 21 Motion for Summary Judgment. Signed by Judge James L. Graham on 9/28/2015. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Case No. 2:14-cv-64
Harrison County Commissioners,
OPINION AND ORDER
This is an employment discrimination action filed pursuant to
Title VII of the Civil Rights Act of 1964 (“Title VII”) and Ohio
Rev. Code §4112.02(a) by Tina DeWalt, the plaintiff herein, against
the Board of County Commissioners of Harrison County, Ohio.
Plaintiff was formerly employed by defendant in the capacity of dog
warden for Harrison County.
In January of 2013, plaintiff’s
position was abolished, and her employment was terminated. Shortly
Plaintiff was encouraged by the commissioners to apply for both of
these positions, but she was not hired for either position, and two
males were hired.
Plaintiff now alleges that her treatment while
employed and her termination were motivated by her gender in
violation of Title VII and §4112.02.
She further alleges pursuant
retaliation for her complaints about gender discrimination.
matter is now before the court on the defendant’s motion for
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.”
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).
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
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
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.
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.
“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
(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[.]”
Matsuchita, 475 U.S. at 586.
A mere scintilla of evidence is not
Anderson, 477 U.S. at 252; Ciminillo v. Streicher, 434
F.3d 461, 464 (6th Cir. 2006).
Because the Ohio Supreme Court has held that federal case law
violations of §4112, see Ohio Civil Rights Comm’n v. David Richard
Ingram, D.C., Inc., 69 Ohio St.3d 89, 630 N.E.2d 669, 672 (1994),
this court will analyze plaintiff’s state and federal claims solely
under Title VII.
See Voltz v. Erie County,
WL 3701326 at *5 (6th Cir. June 16, 2015)(applying Title VII law to
Ohio law claim of discrimination in termination and failure to
rehire); Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 541 (6th
Cir. 2003)(analyzing Ohio law retaliation claim under Title VII).
II. Disparate Treatment/Termination/Failure to Rehire Claims
A. History of the Case
The evidence reveals that plaintiff started working as a
volunteer at the Harrison County Dog Pound in 2007.
Prior to that time, plaintiff had a cosmetology license,
had worked in restaurants, and had assisted in transporting rescued
animals, but she had no prior training in animal control.
Dep., pp. 11-12.
Carl Stewart, the warden at that time, was later
replaced by Chris McMillan (also spelled McMillion in the record),
When McMillan took leave in 2010 for personal reasons,
then Commissioner Barbara Pincola approached plaintiff about being
a paid assistant.
DeWalt Dep., pp. 17-18.
McMillan was later
terminated after having various disagreements with Pincola, and
plaintiff was promoted to the full-time dog warden position on
April 27, 2011.
Affidavit of Commissioner Don Bethel, ¶ 3.
Commissioners Pincola and William Host voted in favor of the
promotion. Commissioner Bethel voted against plaintiff’s promotion
because of past issues concerning operations at the pound and his
opinion that she would not do a good job as dog warden.
Aff., ¶ 3.
As an appointed employee of the county commissioner,
plaintiff worked 34 regular hours per week in a salaried position
which paid $500 per week.
DeWalt Dep. pp. 94, 103,
However, she was on call 24/7 to respond to dog complaints.
Plaintiff had one part-time assistant who worked 10-15 hours per
DeWalt Dep., pp.
During her tenure as warden,
plaintiff had occasion to call the sheriff’s office for assistance,
but plaintiff did not have a cordial working relationship with
Sheriff Myers and some of his deputies.
Beginning in August of 2011 and continuing through 2012, the
community concerning plaintiff’s rude demeanor toward the public
and her occasional unresponsiveness to dog complaints.
admitted that when faced with contentious members of the public,
she didn’t put up with it and responded in kind.
DeWalt Dep., pp.
At one point, almost 600 e-mails were received during a
short period of time.1
Bethel Aff., ¶ 5.
Bethel began documenting
Plaintiff maintained that many of these e-mails were instigated by
Margaret Cloud, a member of the Society for the Prevention of Cruelty to Animals
(“SPCA”) in Alaska, Robin McClellan, another purported SPCA member from
Pennsylvania, and other persons outside the county. DeWalt Dep. pp. 62-64, 7374.
- reports that plaintiff was
discourteous to citizens;
- a complaint from a pound volunteer regarding operations
at the pound, stating that she would no longer be
- plaintiff’s scheduling of her assistant to work forty
hours or more per week when the commissioners had only
approved twenty hours per pay (two weeks);
- a report and official complaint by a family who stated
that a dog they adopted from the pound which was
described by plaintiff as being passive and good around
children had bitten their child; unbeknownst to the
family, the dog was pregnant; plaintiff refused to take
the dog back without a surrender fee and blamed the dog
bite on lack of parental supervision in a post on the
pound’s Facebook page; Harrison County Humane Officer
Darla Smith also complained about plaintiff’s handling of
- plaintiff’s posting of a notice that the public could
not leave unwanted dogs at the pound after being advised
by the county prosecutor that the pound was required by
law to have an after-hours drop-off box;
- a recommendation from the Harrison County prosecutor
that the pound’s Facebook page be shut down as it was not
being used properly; the prosecutor notified the
commissioners that he would not defend the commissioners
in a law suit concerning material on the page;
- a citizen report that plaintiff delayed a week in
picking up a hurt/sick dog found by a citizen; and
- a complaint from a citizen that a child was bitten
twice by a vicious dog; plaintiff advised the child’s
father, who had managed to cage the dog, that she could
not pick it up, and that the father should transport the
dog to the pound.
Bethel Aff., ¶ 6; Doc. 21-2; Doc. 21-3, pp. 1-8; Doc. 21-5.
The record contains a letter
from the Harrison County
Prosecutor concerning a report which was filed with the Harrison
Gilkerson, claiming that plaintiff had been harassing them for more
than a month while investigating a complaint against them.
letter advised the commissioners to review the professionalism
rules in the Harrison County Dog Pound Guidelines with plaintiff.
By letter dated December 11, 2011, from the Ohio Bureau of
Criminal Investigation, the commissioners were advised that the
Bureau had been asked to investigate allegations of possible
criminal activities involving the dog pound, including a request
from Harrison County Sheriff R.J. Myers for an investigation of
possible financial irregularities involving pound funds.
1, p. 12. The letter reported inconsistencies in the weekly pay-in
reports of money paid into the dog pound which plaintiff was
response, by memorandum dated January 3, 2012, the commissioners
instituted the requirement that plaintiff make daily pay-ins.
commissioners also received a management letter from State Auditor
procedures in place to control the collections at the pound were
The errors found by the audit included the lack of
reports for some weeks in 2011, the untimely deposit of collected
funds, a lack of consistency between receipts in the county ledger
and duplicate receipts, the failure to consistently follow the fee
donations received at the pound, and errors in the warden’s
reports. Doc. 19-1, p. 31. Commissioner Bethel indicated that the
constant complaints from the public, other county officials, and
animal control organizations about plaintiff and the dog pound
unreasonable amount of the commissioners’ time. Bethel Aff., ¶ 10.
On January 2, 2013, the Board (now consisting of Commissioners
Bethel, Host, and newly elected Dale Norris, who had replaced
Commissioner Pincola) voted to abolish plaintiff’s position and to
create two new part-time dog warden positions.
Bethel, this was due to the numerous complaints received about
plaintiff, which lead the commissioners to determine that the fulltime position was too much for one person to handle.
Plaintiff was advised by letter dated January 2, 2013, that
her position was being abolished, and that it would be replaced by
two part-time positions “that we believe will better serve the
public and relieve the over-bearing time commitment necessary to
effectively do the job.”
Plaintiff was invited to apply for the
Doc. 20, Ex. D.
The new part-time positions were
advertised in the Harrison News-Herald on January 12, 2013.
20, Ex. C.
One position paid $12.75 per hour, and the other
position paid $12.50 per hour.
The commissioners did not conduct
interviews, but reviewed and considered all 22 applications which
they received, including plaintiff’s application.
Norris Dep., p.
Prior to the abolishment of plaintiff’s position, Bethel
approached John Birney and Jeff Campbell to determine if they would
be interested in applying for the new part-time positions.
Dep., pp. 20-21.
Birney had recently retired from his position as
manager of Tappan Lake Park.
He had previously worked as a deputy
sheriff and was certified in 1991 through the Ohio Police Officer
Training Academy (“OPOTA”) to carry a firearm. Birney Dep., p. 7.
superintendent for Cadiz.
He also had been a deputy sheriff since
1992 and was certified to carry a weapon.
Campbell Dep., pp. 6-7.
Birney and Campbell were ultimately appointed by the commissioners
to fill the two part-time positions.
Birney works 20-22 hours per
week, and Campbell works 20-21 hours per week.
Campbell Dep., p. 13.
Birney Dep., p. 6;
Since they were hired, the commissioners
performance of the dog wardens or the operation of the pound.
Bethel Aff., ¶ 16.
Susan Fleming was hired as an assistant at the
pound to perform jobs such as cleaning and answering the phones.
When she left for a higher paying job, Dave Ward was hired as the
Campbell Dep., pp. 14-15.
The framework announced in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) applies to plaintiff’s discrimination claims.
In the absence of direct evidence of discrimination (there is none
in this case), the plaintiff must make a prima facie case by
showing: (1) she is a member of a protected class; (2) she was
qualified for the position; (3) she suffered an adverse employment
protected class or treated differently than similarly situated nonprotected employees. Serrano v. Cintas Corp., 699 F.3d 884, 892-93
(6th Cir. 2012); Vincent v. Brewer Co., 514 F.3d 489, 494 (6th Cir.
2007)(setting forth elements in gender discrimination case). To be
“similarly situated,” the other employees must have dealt with the
same supervisor, have been subject to the same standards, and have
mitigating circumstances that would distinguish their conduct or
the defendant’s treatment of them for it.
Mitchell v. Toledo
Hosp., 964 F.2d 577, 583 (6th Cir. 1992); see also Ercegovich v.
1998)(plaintiff must show that her situation was comparable to that
of the other employees in all factors relevant to the factual
Once plaintiff establishes a prima facie case, the burden
Serrano, 699 F.3d at 893.
If the defendant does so, the burden
shifts back to the plaintiff to show that the defendant’s proffered
reason was a pretext for discrimination. Serrano, 699 F.3d at 893.
Pretext is shown by evidence that the proffered reason: (1) has no
basis in fact; (2) did not actually motivate the adverse employment
action; or (3) was insufficient to warrant the challenged conduct.
McCarthy v. Ameritech Publishing, Inc., 763 F.3d 469, 482 (6th Cir.
The discrimination laws “do not require employers to make
perfect decisions, nor forbid them from making decisions that
others may disagree with.”
Hartsel v. Keys, 87 F.3d 795, 801
“Rather, employers may not hire, fire, or promote for
preference for one candidate for a position over another is not
actionable unless it was motivated by discriminatory animus.
Geiger v. Tower Automotive, 579 F.3d 614, 625 (6th Cir. 2009); see
also Browning v. Dep’t of Army, 436 F.3d 692, 696-97 (6th Cir.
qualifications are required for a particular position, is key to
the discrimination inquiry.” (internal quotation marks omitted)).
C. Disparate Treatment
Plaintiff testified in her deposition concerning various
alleged instances of disparate treatment. She first noted that the
county garage, under the management of Dale Norris (before he was
elected as a commissioner), refused to service the dog pound truck
when Chris McMillan became warden, thus requiring them to take the
truck elsewhere to be repaired. DeWalt Dep., pp. 96-97. Plaintiff
claims that this stemmed from an instance in 2008 or 2009 when
Norris took two dogs to the pound and was told by McMillan and
plaintiff that he could not leave the dogs, as they did not perform
euthanasia, and to take them to a veterinarian.
DeWalt Dep., p.
Norris claimed that he did not bring the dogs to the pound to
be put down; rather, he was under the impression that there was a
local man who had agreed to take all hounds left at the pound.
also stated that McMillan and plaintiff were rude to him.
Dep., pp. 15-17.
However, there is nothing about this evidence
which suggests that Norris acted with a discriminatory animus in
refusing to service the dog pound truck.
See Bryant v. Martinez,
46 F.App’x 293, 297 (6th Cir. 2002)(treatment motivated by personal
dislike is not actionable under the discrimination laws)(citing St.
Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)).
Norris was not a commissioner at this time, and plaintiff stated
she had no evidence that the commissioners told Norris not to work
on the dog pound truck; in fact, the commissioners stated that they
couldn’t understand why the garage would not work on the truck.
DeWalt Dep., pp. 96-98.
This evidence does not establish an
adverse job action ordered by the commissioners.
Plaintiff also contended that the sheriff’s office would not
send anyone when she called for a backup.
DeWalt Dep., p. 99.
Plaintiff testified that she called the sheriff’s office for backup
a couple of times and was told that it wasn’t their job.
Dep., p. 66.
However, she also testified regarding another
instance where the sheriff’s office did dispatch a cruiser. DeWalt
Dep., p. 76.
Plaintiff had no evidence that the sheriff was
directed in his actions by the commissioners. DeWalt Dep., p. 99.
In fact, Bethel testified that when plaintiff complained about the
sheriff not responding, he followed up and reviewed two tapes of
plaintiff requesting help.
He noted that the tapes revealed that
a cruiser was on the way and just didn’t arrive fast enough to suit
commissioners had any jurisdiction to tell the sheriff how to run
This evidence fails to reveal that plaintiff
suffered an adverse job action due to any acts on the part of the
The same can be said about plaintiff’s complaints concerning
other acts of the sheriff and his deputies, including the sheriff’s
removal of the radio from the unlocked pound vehicle on one
occasion to demonstrate to plaintiff that the truck should be kept
locked (plaintiff claimed that it could not be locked), and moving
the vehicle on another occasion to the lot behind the sheriff’s
However, plaintiff stated that she did not believe that
the sheriff was following the instructions of the commissioners in
performing these acts. DeWalt Dep., pp. 77-78. In addition, there
plaintiff’s gender. Plaintiff testified that the sheriff got along
fine with Chris McMillan, the previous female warden. DeWalt Dep.,
Commissioner Pincola testified in her deposition that
Sheriff Myers never expressed his discontent with plaintiff in
sexual terms. Pincola Dep. 33-34. According to plaintiff, Pincola
told her that the sheriff was treating her poorly because he didn’t
like her, and that plaintiff was not being treated differently
because she was a woman, but rather because she was not a member of
the “good ol’ boys’ club.”
DeWalt Dep., pp. 115-116.
other evidence that Sheriff Myers’ attitude toward plaintiff was
due to his personal dislike of plaintiff stemming from her job
See Barness v. Dep’t of Veterans Affairs, 153 F.3d
338, 342-43 (6th Cir. 1998)(finding supervisor’s conduct making
plaintiff the butt of office jokes was consistent with personal
dislike rather than discriminatory animus).
For example, Sheriff
Myers complained to Commissioner Bethel about plaintiff being rude
to his deputies and dispatchers.
Bethel Dep., p. 10.
commented to Host that plaintiff had to continually request help
because she was afraid of dogs.
Host Dep., pp. 10-11.
evidence suggests that the sheriff had cause for concern that the
manner in which plaintiff performed her job placed extra demands on
Plaintiff also alleged that she was treated differently than
Carl Stewart, the previous male dog warden. She noted that Stewart
spent half his working day over in the sheriff’s office, whereas
she spent her day performing her job.
The pound operational
guidelines require the warden to respond to after-hour calls, but
plaintiff claimed that Stewart refused to go out. DeWalt Dep., pp.
102-06. Apparently, this was because Stewart was paid as an hourly
employee, not a salaried employee.
DeWalt Dep., p. 103.
It is not
clear why the commissioners’ expectation that plaintiff would
competently perform her job constituted discrimination just because
a prior dog warden had failed to perform his job satisfactorily.
The evidence indicates that Stewart was not similarly situated in
thousand hours in compensatory time which they could not afford to
pay in cash.
They were forced to give him a year of working half
days, while hiring Chris McMillan as an assistant.
At the end of the year, Stewart was going to be terminated,
but he resigned before that happened.
DeWalt Dep., p. 100.
result of the problems they had with Stewart, the commissioners
appointed plaintiff as a salaried employee.
DeWalt Dep., p. 103.
This evidence fails to establish a prima facie case of disparate
Plaintiff also complained about the fact that she was not
commissioners said that she could only do that if she went through
The sheriff’s office refused to send her for
DeWalt Dep., p. 82.
Commissioner Bethel testified that
he felt that it was not his place to demand that the sheriff put
plaintiff through training.
Bethel Dep., p. 19.
cited no Ohio statute indicating that the Board has any authority
Plaintiff testified that Stewart, the former male
warden, carried a gun and went to training.
However, she did not
know how Stewart became certified to carry a firearm, and had no
evidence that the commissioners provided him with training. DeWalt
Dep., pp. 83-84.
Plaintiff also noted that Birney and Campbell,
the two part-time male wardens, were certified to carry firearms.
However, they were certified prior to becoming wardens because they
were commissioned years before as deputy sheriffs.
produced no evidence that any of the male dog wardens received more
favorable treatment from the commissioners with regard to firearm
Plaintiff further testified that when she requested that the
commissioners pay half of her personal cell phone bill due to the
fact that she took after-hours calls from the sheriff’s office on
that phone, this request was refused.
DeWalt Dep., pp. 131-132.
The current male wardens have a cell phone for their use which they
leave at the office at night.
Campbell Dep., p. 19.
phone was an extra phone which is owned and paid for by the
Harrison County Engineer.
This phone was not discovered until
after the new wardens were hired. The commissioners do not pay the
bill for this phone or control its use.
Bethel Aff., ¶ 14.
commissioners have never paid for phones for the dog wardens or
reimbursed them for the use of their own phones.
refused to pay the bill for plaintiff’s phone because no one else
employed by the County had their cell phones paid for by the
The auditor also informed plaintiff that if the county
paid her bills, they would become public records, and plaintiff
stated that she did not want this to happen.
On one occasion,
Bethel gave plaintiff a phone card he paid for himself, but he was
inappropriate and not to do this.
Bethel Aff., ¶ 13.
has not established a claim of disparate treatment in regard to the
payment of her cell phone bill.
Plaintiff also complained about the condition of the dog pound
When the part-time wardens started, they used the same
truck plaintiff had used.
Months later, the repair bills on the
truck became so large that they approached the commissioners about
getting a new vehicle, and one was approved.
Campbell Dep., p. 17.
Morris Dep, p. 24;
Commissioner Bethel explained in his
affidavit that during the time plaintiff was the dog warden,
Harrison County was cash-strapped. Since 2012-2013, the county has
experienced a tremendous increase in revenue based on the natural
gas boom in Eastern Ohio.
Therefore, the county now has the
resources to better equip its employees in the various county
agencies, including the dog wardens and the dog pound.
Aff., ¶ 15.
Plaintiff has produced no evidence that male dog
wardens who occupied the position under economic circumstances
similar to those in existence during plaintiff’s tenure were
treated more favorably in terms of being provided equipment or
Plaintiff has failed to show the existence of a genuine
dispute of fact which would preclude granting summary judgment to
defendant on her disparate treatment claims.
Defendant does not argue that plaintiff has failed to show a
prima facie case in regard to her termination.
argues that there were legitimate, nondiscriminatory reasons for
the abolishment of the full-time warden position and the failure to
hire plaintiff for either of the part-time warden positions.
plaintiff’s termination letter, the commissioners stated that the
creation of two part-time positions would “better serve the public
effectively do the job.”
Doc. 20, Ex. D.
At the open session
discussed, Bethel said that the change was based on plaintiff’s
performance and conduct.
Norris Dep., p. 12.
Other reasons given
were to save the county money, to show better performance, and to
create part-time positions which would be less stressful.
Dep., p. 13.
In a newspaper article concerning the commissioners’ meeting
where the hiring of Birney and Campbell was announced, Bethel was
quoted as saying, “We changed the dog warden’s position from fulltime to two part-time positions to take off a little bit of the
stress and better serve the public[.]”
Doc. 32, Ex. B.
confronted at the meeting by Beth Roski, a dog pound volunteer,
regarding why there was no meeting with plaintiff “to discuss the
things you people had a problem with[,]” Bethel responded that the
commissioners had met with plaintiff in the past, but “the move was
simply to improve service,” and “there were other issues he did not
deem appropriate to discuss in public.”
Doc. 32, Ex. B.
to the selection of new wardens, the news article reported Bethel
as saying that the applicants were required to have a firearms
certification because officials were considering the implementation
of tranquilizer guns, and they had to be familiar with crisis
Bethel further indicated that they wanted someone who
worked well with the sheriff’s office, which received dog calls
when the pound was closed.
Doc. 32, Ex. B.
Commissioner Host later stated in his deposition that when
the commissioners discussed abolishing plaintiff’s position in
decision as well as plaintiff’s personal conflicts with the public.
Host Dep., p. 6. In his affidavit, Commissioner Bethel stated that
the Board decided to create the two new part-time positions when it
determined “that the full time position was apparently too much for
one person to handle.”
Bethel Aff., ¶ 11.
Bethel stated that
Birney and Campbell were hired because of their experience and
ability in dealing with the public in a professional manner, their
law enforcement background and their history of public service.
Bethel Aff., ¶ 16.
Commissioner Norris stated in his deposition
that the commissioners were looking for candidates who could deal
with the public and handle the crisis management aspect of the dog
Norris Dep., p. 21.
He felt that Birney and
Campbell were the best-qualified candidates.
Norris Dep., p. 22.
Plaintiff alleges that defendant cannot now rely on her
performance deficiencies as a reason for the abolishment of her
position or the failure to re-hire her because they were not
announced at the time the commissioners’ decision.
Circuit has held that shifting justifications over time or an
employer’s changing rationale for making an adverse employment
decision can be evidence of pretext.
Cicero v. Borg-Warner
Automotive, Inc., 280 F.3d 579, 592 (6th Cir. 2002).
purported reasons that a jury could find them unworthy of credence
and hence infer that the employer did not act for the asserted nondiscriminatory reasons. Fane v. Locke Reynolds, LLP, 480 F.3d 534,
541 (7th Cir. 2007)(citing Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 143 (2000)).
Pretext cannot be inferred where the explanations given for
plaintiff’s termination were not inconsistent, but were in fact
Chemicals Corp., 492 F.3d 589, 594 (5th Cir. 2007). Pretext is not
shown where the employer could have relied on all of the reasons
given simultaneously, regardless of whether it emphasized one over
the others at a given time.
Fane, 480 F.3d at 541.
not “shifting” where they are not incompatible. Nidds v. Schindler
Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996).
conflict with the reasons stated at the time of discharge does not
constitute shifting justifications. MacDonald-Bass v. J.E. Johnson
Contracting, Inc., 493 F.App’x 718, 726 (6th Cir. 2012)(noting that
the initial reason for termination remained the same, albeit
expanded through the litigation); see also Johnson v. Nordstrom,
Inc., 260 F.3d 727, 733 (7th Cir. 2001)(pretext not shown where
employer simply supplemented its explanations in the context of
EEOC charges and litigation, and did not retract any of its reasons
for failing to promote the plaintiff); Tidwell v. Carter Products,
135 F.3d 1422, 1428 (11th Cir. 1998)(existence of a possible
additional non-discriminatory basis for plaintiff’s termination
does not prove pretext).
An employer’s reasons for an employment
decision are not “shifting” where various members of management
cite different areas of deficiency that they deem important.
Peters v. Lincoln Electric Co., 285 F.3d 456, 474 (6th Cir. 2002).
Consideration of plaintiff’s performance deficiencies easily
falls within the scope of the need expressed in plaintiff’s
termination letter to take action to “better serve the public and
relieve the over-bearing time commitment necessary to effectively
do the job.”
The fact that plaintiff’s performance was not
specifically referred to in plaintiff’s termination letter does not
mean that it was not considered or relied on at the time by the
Bethel’s comments quoted in the newspaper article
indicate that plaintiff’s performance difficulties were considered
by the commissioners, but that he did not think it was appropriate
to discuss those matters in public. Plaintiff can’t complain about
the fact that the commissioners exercised restraint and did not
publicly discuss the performance issues which had come to their
attention at the public meeting.
The evidence also indicates that the full-time position, which
included handling after-hours calls, was stressful, and that the
commissioners’ aim in addressing this problem was not pretextual.
Plaintiff herself acknowledged that she had a hard time getting
back to the office to do the daily paperwork.
DeWalt Dep., p. 52.
The goal of reducing expense to the county is also encompassed
within the need to better serve the public.
The evidence shows
that the need to improve performance and to save the county money
were considered at the outset.
Likewise, the need to fill the
position with someone familiar with crisis management, who would
not escalate a volatile situation, and who would work well with the
sheriff’s office are all considerations which do not conflict with
the need to better serve the public.
No inconsistent reasons have
been shown in this case.
Plaintiff also argues that pretext has been shown because the
hiring of two part-time wardens did not save the county money.
both part-time wardens work 20 to 22 hours per week, at $12.75 and
$12.50 per hour respectively, this results in a combined wage of
$505 to $555.50 per week.
Plaintiff was making $500 per week, but
was only working 34 regular hours, yielding an approximate hourly
rate of $14.70 per hour.
If she worked forty hours at that rate,
her weekly salary would be $588.00.
Defendant also notes that
plaintiff, as a full-time salaried employee, was entitled to other
benefits, such as insurance and overtime compensation if she worked
more than forty hours.
The two part-time wardens are not paid
overtime, see Campbell Dep., p. 13, and are not entitled to
The fact that some new equipment has been
provided to the pound since the change to part-time positions has
been explained by the gas boom in Eastern Ohio, which increased
revenue to Harrison County since the change.
Bethel Aff., ¶ 15.
Thus, the fact that new equipment has since ben provided to the
pound is insufficient to support plaintiff’s challenge to the
commissioners’ stated goal of saving the county money.
Plaintiff also notes as evidence of pretext the fact that
Bethel contacted Birney and Campbell prior to the abolishment of
plaintiff’s position to determine if they would be interested in
This is insufficient to establish that the
reasons given for abolishing the full-time position and for failing
to hire plaintiff for one of the new part-time positions were
pretexts for discrimination based on gender.
Birney and Campbell to apply for the positions because he believed
that they possessed the right experience and personalities to
perform the job efficiently and professionally, and that they would
help mend the rift with the public and within county government
caused by plaintiff.
Bethel Aff., ¶17.
However, plaintiff was
also encouraged by the commissioners to apply for the part-time
The commissioners did not decide in advance to hire
Birney and Campbell. Rather, the commissioners as a board reviewed
all of the applications, including plaintiff’s application, and
made their choice based on the merits of the applicants.
Aff., ¶ 17. According to Norris, the commissioners reviewed all 22
applications, narrowed them down to five applicants, and then
decided on Birney and Campbell.
Norris Dep., pp. 17, 20.
that Birney and Campbell were the best qualified.
Norris Dep., p.
Finally, plaintiff argues that there was a general culture of
animosity towards her based on her gender which indicates that the
reasons provided by the defendant are a pretext for discrimination.
Although plaintiff was the target of animosity from other county
officers and employees, as well as from members of the public,
Many of the county employees who disliked
plaintiff were women, including the clerk, Brandi Burton, another
county employee named Shirley, and Darla Smith, the county humane
Pincola Dep., pp. 37, 41, 62.
Pincola described a “hate
group” against plaintiff made up of six women.
Pincola Dep., p.
She also stated that the failure of the sheriff, Brandi and
Shirley to support plaintiff was because they didn’t like her, a
Pincola Dep., p. 63.
As discussed above,
plaintiff had problems with Sheriff Myers and some of his deputies,
but Myers had no problem with Chris McMillan, the previous female
employer, and Commissioner Bethel made efforts to smooth out the
problems between them.
The evidence shows that plaintiff had both supporters, such
as Commissioner Pincola, and detractors.
This does not establish
position of dog warden because of her gender.
Pincola, who was a
commissioner until the day before the decision to abolish the fulltime
information that the decision to abolish plaintiff’s position was
due to her gender.
Pincola Dep., p. 58. The commissioners had
reason to be concerned about plaintiff’s job performance, and they
offered legitimate, nondiscriminatory reasons for selecting two
male candidates whom they thought were better qualified for the
The court concludes that defendant has offered legitimate,
non-discriminatory reasons for the abolishment of plaintiff’s fulltime warden position and for the failure to hire her for one of the
The arguments plaintiff advances in support
of pretext are insufficient to raise a genuine dispute of fact on
plaintiff’s termination and failure to re-hire claim.
III. Retaliation Claim
To establish a prima facie case of unlawful retaliation,
plaintiff must demonstrate by a preponderance of the evidence that:
(1) she engaged in activity protected by Title VII; (2) the
defendant knew that she engaged in this protected activity; (3) the
defendant subsequently took an employment action materially adverse
to the plaintiff; and (4) a causal connection between the protected
activity and the materially adverse employment action exists.
Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014).
plaintiff proves a prima facie case, the burden of production
discriminatory reason for the adverse action.
Abbott v. Crown
Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003).
defendant meets this burden, plaintiff must demonstrate by a
“Title VII retaliation claims ‘must be proved according to
traditional principles of but-for causation[.]”
Laster, 746 F.3d
at 731 (quoting Univ. of Tex. Southwest Med. Ctr. v. Nassar,
, 133 S.Ct. 2517, 2533 (2013)); see also Abbott, 348 F.3d
at 543 (to establish a causal connection, plaintiff must produce
sufficient evidence from which one could draw an inference that the
employer would not have taken the adverse action had the plaintiff
not engaged in activity that Title VII protects).
discrimination charges with the EEOC, but also complaints to
management and less formal protests of discriminatory employment
Laster, 746 F.3d at 730 (holding that harassment
complaints filed internally with human resources were protected
activities under Title VII).
In regard to the first element, plaintiff testified generally
that she made allegations of sex discrimination by the sheriff to
then Commissioner Pincola.
These conversations occurred when the
radio was removed from the dog warden truck by Sheriff Myers.
DeWalt Dep., pp. 113-14. Plaintiff testified at one point that she
and Pincola both agreed that “it was going on.” However, plaintiff
DeWalt Dep., 116.
that after plaintiff complained about her treatment by the sheriff,
they “probably discussed” that she was being treated differently by
the sheriff because she was female.
When Pincola discussed
plaintiff’s complaints about the sheriff’s treatment of her with
Bethel, he responded that he just wanted a dog warden who was
competent and didn’t care what the warden’s sex was. Pincola Dep.,
Bethel stated that when plaintiff complained to him
about the way she was being treated by the sheriff, he followed up
on her complaint by talking with the sheriff.
Bethel Dep., p. 11.
Even assuming that this vague testimony is sufficient to show
that plaintiff engaged in protected activity by talking with
Pincola, plaintiff must also show that the board was aware of her
Although there is evidence that Bethel was
aware of plaintiff’s complaints to Pincola, there is no evidence
that Host and Norris, the other two commissioners who voted with
Bethel to abolish the full-time position, were aware of plaintiff’s
conversations with Pincola.
Plaintiff must also produce evidence that there was a causal
connection between her protected activity and the adverse job
Because the actions abolishing the full-time position and
appointing Birney and Campbell as part-time wardens only required
two out of three affirmative votes, plaintiff had to produce
evidence that at least two of the commissioners were aware of her
alleged protected activity in order to prove the element of
Because there is no evidence that Host and Norris knew
about plaintiff’s conversations with Pincola, it cannot be said
that their affirmative votes, which were legally sufficient to
abolish the full-time position and to hire the two part-time dog
wardens, were the result of a retaliatory motive.
There is no
other evidence that plaintiff’s conversations with Pincola had any
causal connection with the subsequent abolition of her position.
approximately one year and eight months that plaintiff served as
full-time dog warden.
Therefore, it is not possible to draw any
statements to the abolition of the full-time warden position.
Plaintiff testified in her deposition that she had no information
which would show that her conversation with Pincola had anything to
do with the abolishment of her position.
DeWalt Dep., p. 117.
The evidence fails to show that plaintiff could establish a
prima facie case of retaliation, but even assuming that she could,
the same legitimate, nondiscriminatory reasons discussed above in
connection with her termination claim would apply here as well.
Plaintiff has not produced evidence that those reasons were a
pretext for a retaliatory motive based on her alleged protected
Plaintiff has failed to produce evidence showing that
application for a part-time position would not have been denied,
but for her alleged protected activity.
Plaintiff has failed to
demonstrate the existence of a genuine dispute of fact regarding
judgment on that claim.
In accordance with the foregoing, defendant’s motion for
summary judgment (Doc. 21) is granted.
The clerk shall enter
judgment in favor of the defendant on plaintiff’s claims.
Date: September 28, 2015
s/James L. Graham
James L. Graham
United States District Judge
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