Senanayake v. Delaware County Board of Commissioners et al

Filing 71

OPINION AND ORDER granting in part and denying in part 61 Motion for Summary Judgment. Signed by Judge James L. Graham on 6/22/2017. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Janine Senanayake,
v.

Case No. 2:15-cv-65

Plaintiff,

Judge Graham

Delaware County Board of
Commissioners, et al.,
Defendants.
Opinion and Order
Plaintiff Janine Senanayake, a former deputy sheriff for the Delaware County Sheriff’s
Office, brings this Title VII action alleging that she was sexual harassed by another deputy sheriff
while on and off duty. See 42 U.S.C. § 2000e, et seq. Named as defendants are the Delaware County
Board of Commissioners and the Delaware County Sheriff’s Office. Senanayake further alleges that
she was subjected to retaliation when she informed her supervisors of the harassment and that she
was unlawfully terminated because of her sex and because of a physical disability relating to her
knee.
This matter is before the court on the defendants’ motion for summary judgment. For the
reasons stated below, the court grants the motion in part and denies it in part.
I.

Background
A.

Plaintiff Hired as a Corrections Officer

Senanayake applied to be a deputy sheriff with the Delaware County Sheriff’s Office in 2010.
(Doc. 61-124). Her employment history showed that she had been employed by three separate
police agencies in Ohio. (Id.). Her length of employment at these three police agencies ranged from
three months to one year.
A background investigation and check of Senanayake’s references contained a number of
positive referrals but also some areas of concern. One reference indicated that a “cloud of drama”
seemed to follow Senanayake at the Medina County Sheriff’s Office, and another viewed her as a
“liability,” based on her history of getting into incidents for which she was disciplined at the
Montville Township Police Department. (Doc. 61-30 at PAGEID 2, 5). Also of concern was the
event that led to Senanayake being fired by the Perry Township Police Department in July 2009.
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Dash cam video showed Senanayake and the Chief of Police, who later resigned, kissing and
caressing in a police cruiser while an inmate slept in the back of the car. (Id. at 5). The video
footage was posted online and became associated with the moniker of “Kissing Cop.” (Senanayake
Dep. at 55).
Sheriff Walter L. Davis, III and Captain Kevin Savage of the Delaware County Sheriff’s
Office were in charge of hiring at the time Senanayake applied to be a deputy sheriff. (Davis Dep. at
91, 97). Captain Savage was opposed to hiring Senanayake. He was concerned about the results of
the background investigation and about the potential disruption that could come from “Ms.
Senanayake’s notoriety in the media as the ‘Kissing Cop.’” (Savage Aff. at ¶ 3). After interviewing
Senanayake twice, Sheriff Davis believed that she had made some mistakes in the past but had an
overall good work record.

(Davis Dep. at 91-95).

Sheriff Davis made the decision to hire

Senanayake but wanted her to start as a corrections officer for a period before she could become a
deputy. (Id. at 93-94).
Senanayake began her employment as a corrections officer on September 15, 2010, subject
to a one-year probationary period under Ohio Revised Code § 124.27. (Doc. 61-31). During this
period, she served as an at-will employee and was not a member of the collective bargaining unit.
(Id.; Savage Aff. at ¶ 4).
B.

Alleged Sexual Harassment by Deputy Pitts

Deputy Sheriff Rashad Pitts and Senanayake met soon after she became a corrections
officer. Pitts brought individuals to the Delaware County jail for processing and Senanayake had
“very brief conversations” with him, as she would with other deputies. (Senanayake Dep. at 174).
The “first few times he came in[,] it was fine.” (Id. at 175). But at some point within the first
month of Senanayake’s employment, Pitts allegedly said, “[S]he’s the woman that’s going to have my
baby.” (Id. at 174-75). He said this while he and Senanayake were in the booking area of the jail and
said it loudly enough that law enforcement personnel and inmates nearby could hear him. (Id. at
175). Senanayake “felt very embarrassed” and demeaned. (Id. at 176).
Pitts admits to having made a comment to Senanayake, though he recalls having said, “[I]t
only takes two minutes to have a baby.” (Pitts Dep. at 9). According to Pitts and other deputies
who were present, Pitts made his statement in response to Senanayake grabbing her crotch and
saying, “Pitts, you couldn’t handle this.” (Pitts Aff. at ¶ 2; Dore Aff. at ¶ 5; Burke Aff. at ¶ 9).
Senanayake denies having made such a gesture or statement. (Senanayake Dep. at 223).

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According to Senanayake, from that point forward Pitts “constant[ly]” made unwelcome
comments to her. (Senanayake Dep. at 223). His comments included repetition of “baby-making”
statements and requests that she go out with him, which she always declined. (Id. at 176) (testifying
that he asked, “[W]ant to go out? Want to go to the clubs?”). Senanayake also states that Pitts made
the following comments to her: “You’re sexy, you’re hot”; you have “nice legs” and a “nice body”;
you are “beautiful” and “pretty”; “I would like to take you to the club” and have you “on my arm”;
and “I’m going to marry you some day.” (Id. at 176, 178). She repeatedly asked Pitts to stop
making such comments, but “he just laughed everything off, [like] it was nothing.” (Id. at 188-89).
Senanayake felt that the comments made by Pitts were harassing, demeaning and
embarrassing. (Senanayake Dep. at 189). Some of the comments occurred in front of co-workers
and inmates in the booking area of the jail. (Id. at 186).
others to disrespect her. (Id. at 192, 227).

She believed that this conduct caused

Inmates who heard Pitts harass her made similar

comments to her and boasted that she could not “write them up” because they were saying nothing
worse than what Pitts had said to her. (Id. at 228). Senanayake received messages in her mailbox,
she believed from other employees, with the word “bitch” or “cunt” on them and with statements
of how she did not deserve to be in law enforcement. (Id. at 274-76).
According to Pitts, he made the baby-making comment just once and did not repeat it.
(Pitts Dep. at 9). Pitts denies ever asking Senanayake out, having “ever come on to her in any way”
or ever making any sex-based comments to her. (Id. at 11; Pitts Aff. at ¶ 2). Pitts states that the two
of them did “joke” one time “about going to a club together.” (Pitts Aff. at ¶ 2). This joke
precipitated Senanayake grabbing her crotch and telling Pitts that he “couldn’t handle this” and Pitts
responding that “it only takes two minutes to have a baby.” (Id. at ¶ 2). Pitts states that both of
them laughed after that exchange. (Id.).
Senanayake states that one of her supervisors, Sergeant Jessie Jackson, observed Pitts making
comments to her.

(Senanayake Dep. at 176).

Senanayake complained to Jackson about the

comments Pitts made and stated that it was “awful” and made her feel “very embarrassed.” 1 (Id. at
176, 180, 187-88). Jackson said she would deal with the matter, but she never did. (Id. at 188).

Senanayake testified that when she was a corrections officer, she typically memorialized her
complaints in the form of an Inter-Office Communication (IOC). (Senanayake Dep. at 265). The
evidentiary record at the summary judgment stage does not contain any IOCs in which she
complained to Jackson about Pitts, but it should be noted that defendants’ motion does not argue
that Senanayake failed to properly address her complaints to Jackson.
1

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Senanayake also complained to Jackson about the messages she received in her mailbox, but nothing
was done about it, so far as Senanayake knows. (Id. at 276).
According to Jackson, she never observed Pitts make an improper comment to Senanayake.
(Jackson Aff. at ¶ 2). Jackson also denies that Senanayake ever complained to her about any
comments made to Senanayake by Pitts. (Id.). In her affidavit, Jackson does not address whether
she was aware of the alleged messages Senanayake received in her mailbox.
Though Senanayake describes the harassing comments from Pitts as having been “constant,”
it is uncertain how much contact Senanayake and Pitts had while she worked as a corrections officer.
According to Jackson, who served as Assistant Director of the Jail, road patrol deputies like Pitts
came to the booking area of the jail to drop off inmates or do paperwork but otherwise were “rarely
in jail.” (Jackson Aff. at ¶ 3). Senanayake states that Pitts made comments to her when he was
dropping inmates off and that he came to the jail to see her even when he did not have an inmate to
drop off. (Senanayake Dep. at 186-87). Further, Pitts states that while Senanayake was a corrections
officer, “she regularly asked to do ride-alongs with [him] to learn the patrol side so she could be
promoted one day to Deputy Sheriff.” (Pitts Aff. at ¶ 3). Pitts allowed her to join him for ridealongs on three or four occasions. (Pitts Dep. at 18).
Senanayake also states that Pitts made a sexually-harassing comment to her at a courthouse.
(Senanayake Dep. at 180, 271). Pitts made the comment in front of a security officer, who laughed
when he heard it. (Id. at 180). The content of what Pitts said and when exactly the incident took
place is not reflected on the record before the court – during her deposition, Senanayake was not
asked any further questions about the matter.
Senanayake further asserts that there were “[q]uite a few times” where Pitts tapped her
backside with a clipboard as she was filing out of a room with deputies following roll call.
(Senanayake Dep. at 179-80). Pitts denies that he tapped her backside with a clipboard. (Pitts Aff.
at ¶ 2). It is unclear from the record exactly when this alleged conduct occurred – whether it
happened when Senanayake was a corrections officer, a deputy, or both. A fair reading of the
Senanayake’s testimony is that it at least started when she was a corrections officer and would report
to roll call when she allowed to do a ride-along. (Senanayake Dep. at 177).
C.

Promotion to Deputy Sheriff and Perceived Favoritism from Sheriff Davis

Lieutenant Colleen Wilson prepared a performance review of Senanayake on December 5,
2010. The review sheet listed 67 areas or items for which a score between 1 and 5 was assigned.
Wilson predominately gave scores of 3 to Senanayake. (Doc. 61-37) (showing that a score of 3 was
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given 61 times and that scores of 2 and 4 were given for the other items). This performance review
received the attention of Sheriff Davis. He personally marked up the review with his critique of
Wilson’s assessment. (Id.; Wilson Aff. at ¶ 3). Sheriff Davis discussed the matter with Wilson and
stated that Senanayake deserved higher scores. Wilson “felt pressured to change [her] assessment
based on his angry response.” (Wilson Aff. at ¶ 3).
In April 2011, Senanayake took a complaint – that Sergeant Randy Pohl was harassing her
with repeated requests to go on a date with him – directly to Sheriff Davis. (Doc. 61-40). Her
directly reporting to him was contrary to the sexual harassment policy, which instructed employees
to make complaints to immediate supervisors, and contrary to Sheriff Davis’s well-known policy that
concerns were to be addressed only through the chain-of-command. (Ex. 15 at § IV; Davis Dep. at
179-80; Savage Aff. at ¶¶ 13-14; Petrozzi Aff. at ¶ 5). Despite Senanayake jumping the chain-ofcommand, Sheriff Davis assigned Captain Savage to handle her complaint. (Doc. 61-40).
Sheriff Davis promoted Senanayake to deputy sheriff on May 5, 2011. (Doc. 61-45). In this
position, she was required to begin a new one-year probationary period. (Id.). Probationary
deputies had to complete a three-month field training period in which they were paired with
experienced officers for on-the-job training. (Buttler Aff. at ¶ 4).
At Sheriff Davis’s direction, deputy Kevin Turner was assigned to be a field training officer
for Senanayake. During the field training, Turner observed numerous concerns with Senanayake’s
performance. He believed that she “consistently stopped minority motorists at much higher rates
than white drivers” and that she disregarded his warning not to engage in racial profiling. (Turner
Aff. at ¶ 5). He observed that she “regularly turned off her microphone to take personal calls from
Sheriff Davis” and that she was “almost constantly texting if she was not driving.” (Id. at ¶ 6).
Turner states that he was hoping to receive a promotion at the time and, because of his fear of
retaliation from Sheriff Davis, he “did not accurately document her performance deficiencies” or
otherwise address her “improper behavior.” (Id. at ¶¶ 3, 6).
By this time, many officers had formed the perception that Senanayake was receiving special
treatment from Sheriff Davis and had direct access to him. (Turner Aff. at ¶ 3) (stating that there
were rumors circulating that the “usual rules” did not apply to Senanayake); (Campbell Aff. at ¶¶ 78) (stating that Senanayake claimed to know of Sheriff Davis’s personal likes and dislikes); (Spring
Aff. at ¶ 4) (stating that he believed Senanayake and Sheriff Davis often texted each other during
morning roll call). Captain Savage thought that it was unusual for Senanayake to have been
promoted to deputy without completing her probationary period as a corrections officer and that it
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was unprecedented for Sheriff Davis to have ordered that she receive a coveted day shift with
weekends off work. (Savage Aff. at ¶ 12; see also Vance Dep. at 43). Chief Deputy John Petrozzi
was instructed by Sheriff Davis to ensure that Senanayake was given a day shift as a reward for her
loyal service. (Petrozzi Aff. at ¶ 8). Many officers, including Pitts, believed that “Sheriff Davis
would retaliate against anyone who Ms. Senanayake disliked.” (Pitts Aff. at ¶ 4; Spring Aff. at ¶ 3;
Burke at ¶¶ 3-4)).
In the summer of 2011, Senanayake and Sheriff Davis began having a romantic relationship.
(Senanayake Dep. at 146-47). At the time, Sheriff Davis was married; he viewed his marriage as
having been “long over” before he began his relationship with Senanayake. (Davis Dep. at 155).
D.

Additional Alleged Sexual Harassment by Pitts and the Incident at the

County Fair
Senanayake asserts that at some point in the summer of 2011, Pitts pulled her over on U.S.
Route 23 while she was off-duty. Pitts told her that he had turned off his microphone and that he
pulled her over so that he could see what she was wearing. (Senanayake Dep. at 249-50). Pitts
commented that she had “nice boobs” and legs and said that he wished he could take her
somewhere when he got off work. 2 (Id. at 250). Senanayake told him no and questioned why she
had been pulled over, at which point Pitts said “whatever” and walked back to his car. (Id.). Pitts
states that he pulled Senanayake over because she was speeding, but decided not to give her a ticket
when he realized that she was the driver. (Pitts Dep. at 10). He denies that he asked her out or
made any comments about her appearance. (Id. at 11).
In mid-September 2011, Pitts and Senanayake were working at the Delaware County Fair.
When they drove past the car of Sheriff Davis on a golf cart, Senanayake said, “I wonder whose car
that is.” (Pitts Aff. at ¶ 7). Pitts, who intended to be making a joke, replied, “Oh please, you know
whose car that it. It’s parked outside your house every night.” (Id.). Senanayake took offense to
this remark and called Pitts a liar. (Id.). Pitts claims that Sheriff Davis angrily approached him at the
fair that night, got in his face and threatened to fight him. (Id.; Pitts Dep. at 13-14). Sheriff Davis
denies that any altercation took place. (Davis Dep. at 164).

In her complaint and brief in response to the motion for summary judgment, plaintiff further
alleges that Pitts said that she was a “hot piece of ass” out of uniform, but plaintiff has not cited any
evidence in support of this allegation.
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E.

Plaintiff’s Discussions with Sergeant Burke and Alleged Retaliation

Within her first month as a deputy, Senanayake told Sergeant Jonathan Burke, one of her
supervisors, about the comments Pitts had made to her when she was a corrections officer.
(Senanayake Dep. at 192-93). She said to him that the comments had been made in front of other
people and were “demeaning” and “embarrassing” and that “people start to mistreat you . . . when
you have someone who is wearing the same uniform that disrespects you.” (Id. at 192). She asked
that Burke tell Pitts to stop making such comments. Burke initially responded that Pitts was his
“buddy” and a “good dude” and was just “kidding around.” (Id.). But Burke agreed to “tell him to
stay off,” though Senanayake asked that it not “become a big investigation.” (Id.).
Within a couple of days, Senanayake “knew [Burke] had said something to Pitts because his
entire demeanor” changed when they were at morning roll call. (Senanayake Dep. at 193). Instead
of Pitts greeting her with his usual “hello” or “hey, sexy,” he would say nothing to her and would
give her “threatening” looks. (Id. at 193-95). Burke himself and at least one other officer, whom
Senanayake believed was friends with Burke, changed their attitudes towards her as well.
(Senanayake Dep. at 194-95). Instead of being “super friendly,” they started giving her “a cold
hello.” (Id.). Senanayake felt “alienated.” (Id. at 199).
Senanayake claims that Pitts told her that “snitches get stitches and end up in ditches.”
(Senanayake Dep. at 177, 237). Pitts then stated that an officer had “told on” him at a prior law
enforcement job. (Id.). When that officer needed back-up, Pitts deliberately delayed in coming to
the scene and the officer “got beat up pretty bad” in a fight. (Id. at 177-78). Pitts laughed as he
recounted this story to Senanayake. (Id.).
According to Pitts, he did say something to the effect of “snitches get stitches” in
Senanayake’s presence. He recalls having said it back when she was doing ride-alongs (not after she
talked to Burke) and in the context of them “joking around” when they heard on the radio an “old
rap song” with lyrics containing that phrase. (Pitts Dep. at 11-12). Pitts denies that he told her a
story about not coming to a fellow officer’s aid. (Id. at 12-13).
At some point Senanayake talked to Burke when they were walking to their cars.
(Senanayake Dep. at 199). She told him that things had become “worse” because Pitts was “being
different.” (Id.). Burke told her that Pitts would “come around.” (Id.). When nothing seemed to
change, Senanayake went to Burke’s office and “took a completely different approach” to try to
“smooth things over.” (Id. at 199-201). According to Senanayake, “I told him [Burke] that it was
fine . . . to just kind of let it go, that he’s [Pitts] – he’s fine, he’s okay – you know, he’s harmless. . . . I
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know that I tried to take a completely different approach when the first approach did not work.”
(Id. at 201). Burke responded by asking her if she was sure that everything was fine, to which she
said it was. (Id. at 201-02).
Burke offers a different version of the matter. He admits that Senanayake told him about
Pitts saying that he wanted to have her babies. (Burke Dep. at 33, 38). But she did not report that
Pitts had made any other comments to her. (Id. at 33-34). Burke asked Senanayake what action she
would like him to take, and she said, “[N]othing, we’re like brother and sister, we joke like that all
the time.” (Id. at 34, 37). Burke took that statement to mean that “she didn’t care and she didn’t
want to do anything about it.” (Id. at 38). They had no further conversation about the comment
and Burke said nothing to Pitts. (Id. at 35, 39).
On August 18, 2011, Burke had a conversation with Senanayake about Pitts.

It was

precipitated by a text message that Burke inadvertently received from her – he believed the text was
meant for Sheriff Davis – in which she complained, “Burke is unfair.” (Burke Aff. at ¶ 9). During
the ensuing conversation, Senanayake stated that she “really liked” Pitts and had “no problem” with
him.” (Id.).
Burke states that on one occasion Senanayake told him that people were giving her “the cold
shoulder.” (Burke Aff. at ¶ 10). In Burke’s view, “she did not appear to get along well with people
at the office” because people perceived that she had a special relationship with Sheriff Davis. (Id.).
“She denied there was a relationship and did not want to hear any advice from me about how to
repair her relationships with her colleagues.” (Id.).
F.

Plaintiff’s Communications with Chief Petrozzi and Alleged Retaliation

Burke remained “angry that [Senanayake] came to him complaining about his friend.”
(Senanayake Dep. at 242). Believing that the unpleasant demeanor of Burke, Pitts and others toward
her had not improved, Senanayake went to Chief Petrozzi at the end of the summer of 2011. (Id. at
217).

She told Petrozzi that Burke’s “whole demeanor” and attitude had changed since she

complained to Burke about Pitts. (Id. at 218-19). She said that Burke was “unfair” and “doesn’t
treat me like he does the rest of them, he’s cold to me, he’s inconvenienced when I call or have a
question, he’s very – rude.” (Id. at 221). She explained that she did not enjoy her work anymore.
(Id. at 223). Petrozzi responded that Burke was “fine” and that everybody should try “to get along.”
(Id. at 222).
Petrozzi does not recall having a conversation with Senanayake about her making a
complaint to Burke regarding Pitts. (Petrozzi Dep. at 64). He does recall that she spent “a lot of
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time” talking to him about various topics, including her interactions with supervisors, and that
“there was a perception on [her] part that [Burke] was a little harder on her than everybody else.”
(Id. at 62-64, 107). When Senanayake complained that Burke was overly critical of her, Petrozzi told
her that Burke was simply trying to help her improve as a deputy. (Petrozzi Aff. at ¶ 12). Petrozzi
believed that Senanayake “just could not accept constructive criticism” and that she leveraged her
relationship with Sheriff Davis to discourage objective evaluation of her performance. (Id. at ¶¶ 915) (recounting instances either where, in Petrozzi’s view, Sheriff Davis retaliated against supervisors
who had offered critiques of Senanayake or where critiques were not made in order to avoid
retaliation).
Senanayake claims that the situation did not improve after she talked to Petrozzi.
(Senanayake Dep. at 222-23). Burke started treating her “even worse.” (Id. at 242). Burke would
question, chastise and yell at her over the police radio regarding traffic stops she had conducted.
(Id. at 215-16, 243). Burke did not engage in such conduct with other deputies. (Id. at 216). Burke
would also resist her efforts to take time off, in a way he did not do to others. (Id. at 242-43).
In the fall of 2011, Petrozzi became aware of the baby-making comment that Pitts had made
to Senanayake about a year earlier.

According to Petrozzi, Senanayake told him about the

comment. 3 (Petrozzi Aff. at ¶ 21; Petrozzi Dep. at 102). She did not mention any other instances of
harassing behavior by Pitts. (Petrozzi Dep. at 103). Petrozzi told her that the comment was
inappropriate and that he would talk to Pitts. (Id.; Petrozzi Aff. at ¶ 21). Petrozzi met with Pitts
and told him that he would “whoop his ass” if such behavior happened again. (Petrozzi Dep. at
102-03; Petrozzi Aff. at ¶ 21). Pitts took responsibility for having once made the comment and
“agreed never to say anything like that again.” (Id.).
In Senanayake’s view, Pitts started to treat her worse. Pitts told her about meeting with
Petrozzi, who said to Pitts that he “would take a Louisville slugger to [Pitts’s] head.” (Senanayake
Dep. at 236). “Pitts was horrible after that. Like glare – he would glare. . . . [A]nd he would be
mumbling oh that F’ing bitch to someone he was talking to about me, and I was right there.” (Id. at
236). Pitts again stated that “snitches get stitches and end up in ditches,” and this time she felt that
it “was directed directly at [her].” (Id. at 235, 237). He stated further, “[D]on’t ever . . . expect me
to come fast to you if you’re calling for help. . . . I don’t deal with people that snitch. (Id. at 237).

Senanayake says that she did not talk to Petrozzi about Pitts, but she believes that Petrozzi may
have learned of the baby-making comment from talking with Burke. (Senanayake Dep. at 218, 234).

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9

In mid-December 2011, Senanayake submitted an IOC to Lieutenant David Buttler
requesting a meeting with the command staff (Sheriff Davis, Captain Savage, Captain Scott Vance,
Chief Petrozzi) and Sergeant Burke. (Doc. 61-104). Senanayake states that the reason for requesting
the meeting was to raise her complaint that the cold and threatening demeanors of Burke and Pitts
had not changed. 4 (Senanayake Dep. at 222). Buttler forwarded the request to Petrozzi. (Buttler
Dep. at 71-72). Petrozzi attempted to schedule a meeting but found that he could not arrange a
meeting with everyone present because Senanayake was taking leave and because others were taking
holiday leave and sick leave. (Doc. 61-104 at 4; Petrozzi Dep. at 109; Petrozzi Aff. at ¶ 22). On
January 5, 2012, he emailed the command staff asking if they would be available to meet on January
9 to discuss Senanayake’s “concerns related to Sgt. Burke.” (Doc. 61-104 at 2). However, Petrozzi
found out that Burke was suffering from health issues and was taking extended medical leave
beginning on January 6. (Petrozzi Dep. at 110; Burke Aff. at ¶ 12). Petrozzi states that he consulted
with Senanayake, who said that she wished to postpone the meeting until Burke returned to work.
(Doc. 61-104 at 1; Petrozzi Aff. at ¶ 22). As it would turn out, a meeting never took place.
(Senanayake Dep. at 233). Burke did not return to work until after Senanayake was terminated, and
Petrozzi resigned in February 2012 because he disliked Sheriff Davis’s “abusive management style.”
(Burke Aff. at ¶ 12; Petrozzi Aff. at ¶ 22).
G.

Senanayake’s Traffic Stop of Pitts

On March 7, 2012, Senanayake pulled Pitts over for speeding. (Senanayake Dep. at 238;
Pitts Aff. at ¶ 5). She did not know that it was him. (Senanayake Dep. at 238-39). Pitts was offduty and “wearing a hoodie and driving an old Cadillac.” (Pitts Aff. at ¶ 5). Pitts, who is AfricanAmerican, had formed the belief from working with Senanayake that she disproportionately stopped
black motorists. (Pitts Dep. at 29; Pitts Aff. at ¶ 5).
Later that day, Pitts emailed Sergeant Larry Dore. (Doc. 61-97). Pitts, who acknowledged
that he was traveling slightly above the speed limit, thought that the real reason Senanayake pulled
him over was his race, clothing and type of car. Dore forwarded the email to Lieutenant Chris

It is unclear whether Senanayake’s reason for requesting a meeting was stated in the IOC.
Plaintiff’s response brief asserts that it was (Doc. 62 at 16), but no evidence is cited in support.
Senanayake’s deposition testimony does not provide any indication. (Senanayake Dep. at 222-23,
233, 279-81). During discovery, a copy of the IOC could not be found. Lieutenant Buttler recalls
having received the IOC and, because it requested Burke’s presence at the meeting, he believed it
related to the “personality conflict” between Senanayake and Burke. (Buttler Dep. at 74).
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Burden. Senanayake believes Pitts sent the email intending to “get [her] in trouble.” (Senanayake
Dep. at 240).
Sheriff Davis became aware of Pitts’s email. Sheriff Davis, who is African-American, found
it hard to believe that Senanayake “was dating a black guy, but yet racially profiling another black
guy.” (Davis Dep. at 165). He called a meeting in which he, Pitts, Captain Savage and Captain
Vance were present.

(Pitts Aff. at ¶ 6; Savage Aff. at ¶ 39; Vance Aff. at ¶ 6).

A union

representative was not present at the meeting, which Pitts thought was unusual. (Pitts Aff. at ¶ 6).
According to Pitts and both Savage and Vance, Sheriff Davis yelled at Pitts and threatened to fire
him for having accused Senanayake of racial profiling. (Pitts Aff. at ¶ 6; Savage Aff. at ¶ 39; Vance
Aff. at ¶ 6). Sheriff Davis denies having done so. (Davis Dep. at 165-66). Pitts complained to his
union representative about Sheriff Davis bullying him. (Pitts Aff. at ¶ 6; Hegedus Aff. at ¶ 3).
H.

Sheriff Davis Resigns

In early April 2012 it was publicly revealed that the Ohio Bureau of Criminal Investigation
had been investigating an allegation that Sheriff Davis had misused public funds to pay for
Senanayake to accompany him on an out-of-state trip. (Doc. 61-29). Sheriff Davis resigned on
April 9, 2012 and agreed to repay the funds in question. (Id.). Captain Vance was appointed as
Acting Sheriff. (Vance Aff. at ¶ 1).
I.

Senanayake’s Knee Injury

On Wednesday, April 11, 2012 Senanayake participated in a training exercise at the Ohio
State Highway Patrol. (Senanayake Dep. at 163; Doc. 61-107). During the exercise her left knee
“snapped to the outside and it was pretty painful.” (Senanayake Dep. at 163). Her knee appeared to
be swollen and the instructor had her stop for the day, but she was able to walk out on her own
accord. (Id. at 164). She reported to training on the next day. (Id.). She took a day of sick leave on
Friday. (Doc. 66-8 at 22).
On Monday, April 16, 2012, Senanayake saw an orthopedic doctor. (Doc. 61-107). He took
an X-ray and assessed her injury as a sprain and possible meniscus tear, for which he ordered an
MRI.

He instructed her to take over-the-counter anti-inflammatory medication for pain and

swelling, and he advised that she take one week off work. (Id.). Senanayake took sick leave that
week and provided medical verification to her supervisor. (Doc. 66-8 at 18-19, 21).
On April 19 Senanayake received the results of her MRI. She was diagnosed with a bone
contusion, but no tear. (Doc. 61-109). She reported that she was still in pain, and her doctor

11

instructed her to take two additional weeks off work and return for a follow-up appointment. (Id.).
Senanayake took sick leave through May 4. (Doc. 66-8 at 14, 15, 20).
Senanayake returned to her doctor on April 30 and reported that she was “a lot better.”
(Senanayake Dep. at 169; Doc. 61-110). She had a full range of motion in her knee, with much less
pain, and the swelling was gone. (Senanayake Dep. at 169-70; Doc. 61-110). The doctor released
her to immediately “go back to full activities unrestricted.” (Doc. 61-110).
J.

Senanayake’s Termination and Her Work Performance Deficiencies

On April 24, 2012, Acting Sheriff Vance notified Senanayake that her employment was
terminated on that day because of her “failure to satisfactorily complete [her] probationary period.”
(Doc. 61-34). In making this decision, Acting Sheriff Vance relied upon an End-of-Probation
Review document prepared by Captain Savage on April 18, 2012. (Doc. 61-91; Vance Dep. at 2426; Vance Aff. at ¶ 8). Captain Savage prepared the Review after examining records relating to
Senanayake and speaking with various individuals in the Sheriff’s Office who had observed her
performance. (Vance Dep. at 135-37). Among other things, the Review described five “Disciplinary
Issues” and twenty “Documented Incidents” from June 2011 to March 2012.
The disciplinary issues included two instances in which Senanayake received discipline that
was consistent with the discipline given to other deputies for the same or similar infractions. One
instance was an October 2011 car accident in which Senanayake was determined to be at fault while
driving her police cruiser. (Doc. 61-116). Senanayake received a written reprimand – common
discipline for a deputy’s first at-fault accident. (Id.; Savage Aff. at ¶ 17). The second instance was
Senanayake’s failure to appear at three court hearings in February 2012, for which she was
suspended for one day – the same discipline given to another deputy who had missed court. (Doc.
61-88; Savage Aff. at ¶ 29).
For the other three disciplinary issues, Senanayake committed infractions that Captain
Savage believed warranted discipline. She did not receive discipline because, in Captain Savage’s
opinion, Sheriff Davis intervened to prevent it. Senanayake was involved in a second at-fault
accident with her cruiser, but Sheriff Davis prohibited an administrative investigation from being
initiated after the accident. (Savage Aff. at ¶ 27). This spared her of the usual discipline of a
suspension and remedial training. (Docs. 61-51, 61-52, 61-54, 61-55). Senanayake was also the
subject of a citizen complaint that she was texting while driving her cruiser. (Doc. 61-56 at 6). After
Chief Petrozzi investigated and substantiated the complaint, Sheriff Davis ordered him to close the
investigation, thereby precluding a one-day suspension for Senanayake. (Petrozzi Aff. at ¶ 17).
12

Finally, Senanayake violated the policy against cell phone use while operating a cruiser for a second
time, again with Sheriff Davis directing that she not be disciplined. (Id.; Doc. 61-91 at 2-3).
The “Documented Incidents” included numerous instances in which Senanayake had to call
a dispatcher to get directions while responding to a call because she was unable to navigate around
Delaware County. (Doc. 61-91 at 3-4; Burns Aff. at ¶¶ 2-3). The Review also included instances in
which Senanayake failed to accurately investigate a car accident and issued a ticket to the wrong
driver, left her cruiser running unattended, and did not comply with the formal dress code. (Doc.
61-91 at 3-4). And the Review included several instances of complaints from citizens and coworkers that Senanayake had engaged in unprofessional conduct, including racial profiling, getting
into a verbal altercation with (and pushing) another deputy while at the scene of a shooting, and
treating citizens rudely. 5 (Id.). In Captain Savage’s experience, Sheriff Davis typically investigated
and sanctioned “even minor infractions,” but when Senanayake was the one committing an
infraction, he directed that it be overlooked. (Savage Aff. at ¶¶ 16, 23).
The Review noted other areas of concerns. Senanayake was deficient in preparing police
reports – her reports often were incomplete, lacked basic information and contained misspellings
and grammatical errors. (Doc. 61-91 at 4; Burke Aff. at ¶ 8; Spring Aff. at ¶ 2; Doc. 61-80; Doc. 6175). She sometimes failed to fill out her cruiser logs properly. (Doc. 61-91 at 5). Captain Savage
noted too that Senanayake, as a probationary employee, had displayed an unwillingness to learn how
to perform certain aspects of her job, such as becoming geographically oriented with the county,
preparing reports and paperwork and having an understanding of policies and procedures. 6 (Id.;
Doc. 61-86). She was not receptive to correction or supervision and had a judgmental attitude
toward co-workers. (Doc. 61-91 at 5; Savage Aff. at ¶¶ 33, 40; Doc. 61-86). All of this led Captain
Savage to believe that Senanayake did not have the confidence of her supervisors or peers. (Doc.
61-91 at 5).
The Review provided a sampling of the concerns regarding Senanayake. Documentation of
additional instances was made in monthly observation reports, emails and citizen complaints. (Docs.
61-75, 61-83, 61-84, 61-85, 61-86). One additional incident involved a citizen complaint that
Senanayake had racially profiled a black motorist in March 2012. The motorist filed a civil rights
lawsuit, which the county agreed to settle. (Docs. 61-101, 61-117).
5

Sergeant Robert Spring prepared a monthly observation report on Senanayake shortly after Sheriff
Davis resigned. (Doc. 61-86). He gave her marks of “Not Acceptable” or “Needs Improvement” in
each and every subcategory within the general categories of performance, knowledge and behavior.
Spring stated that it was the first time that he could honestly assess Senanayake’s performance
without fear of reprisal from Sheriff Davis. (Spring Aff. at ¶ 11).
6

13

Captain Savage also documented Senanayake’s leave usage, which totaled 300 hours of leave
in less than one year. (Doc. 61-91 at 2-3). He believed that this amount of leave was abusive and
“unprecedented” for a probationary employee and was made possible by “special treatment from
the Sheriff.” (Savage Aff. at ¶ 36). Captain Savage found that Senanayake’s excessive leave usage
impeded her ability to develop the skills needed to be a good deputy. (Id.).
Acting Sheriff Vance and Captain Savage agreed that Senanayake had not satisfactorily
completed her probationary period and “was wholly unfit to serve.” (Vance Aff. at ¶ 8). Captain
Savage could not recall a probationary employee ever performing so poorly, and they were troubled
that she could not grasp many aspects of police work despite having been employed in law
enforcement on three prior occasions. (Savage Aff. at ¶ 38). They believed that she was “not safe
to put on the road” and was “a liability to the County.” (Id.; Vance Aff. at ¶ 8).
K.

EEOC Charge and Filing of this Suit

Senanayake filed a charge of discrimination with the Equal Employment Opportunity
Commission on May 1, 2012. (Doc. 61-123). In her charge she complained that Pitts had sexually
harassed her and that she was retaliated against after she reported the harassment to her supervisor.
The charge did not include an allegation that her termination was an act of sex discrimination.
Senanayake’s amended complaint in this action contains four federal claims: hostile work
environment under Title VII, retaliation under Title VII, sex discrimination under Title VII, and
disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.
She also asserts corresponding claims under state law, O.R.C. § 4112.02(A), for which the same
analysis applies as that under federal law. See Smith v. Dep’t of Pub. Safety, 997 N.E.2d 597, 614
(Ohio Ct. App. 2013) (“Due to the similarities in Title VII and R.C. Chapter 4112, Ohio courts look
to federal case law addressing Title VII for assistance in interpreting R.C. Chapter 4112.”); Hedrick
v. W. Reserve Care Sys., 355 F.3d 444, 452 n.4 (6th Cir. 2004) (“Because the essential elements of an
ADA claim and a claim under the Ohio handicap discrimination statute are identical, our analysis of
Hedrick’s ADA claim also resolves her state law claim.”).
II.

Standard of Review
Under Federal Rule of Civil Procedure 56, summary judgment is proper if the evidentiary

materials 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
14

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)

(emphasis in original); 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 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
A.

Hostile Work Environment Claim

Senanayake alleges that the sexual harassment she received from Pitts created a hostile work
environment. Title VII prohibits discrimination based on sex where harassment is “sufficiently
severe or pervasive” so as “to alter the conditions of the victim’s employment and create an abusive
working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal quotation
15

marks omitted). In order to establish a hostile work environment claim, plaintiff must show that: (1)
she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the
harassment complained of was based upon sex; (4) the harassment created a hostile work
environment; and (5) the employer knew or should have known of the charged sexual harassment
and failed unreasonably to take prompt and appropriate corrective action. Williams v. Gen. Motors
Corp., 187 F.3d 553, 560 (6th Cir. 1999).
As an initial matter, the parties dispute how much harassment Senanayake was subjected to
and whether it was unwelcome. Plaintiff contends that Pitts repeatedly made unwelcome sexual
comments to her. Defendants argue that plaintiff’s version of events is uncorroborated and that
Pitts made only one arguably sexually-related comment to Senanayake – the baby-making comment
– which he said in reaction to her grabbing her crotch and telling him that he “could not handle
this.”

Defendants claim that much of the alleged harassment amounted to no more than

compliments, flirtatious behavior and “banter that is commonplace amongst police officers.” (Doc.
69 at 16).
Defendant’s argument must be rejected. At the summary judgment stage, the court does not
make credibility determinations. Senanayake testified that she did not make any gesture or comment
which would have prompted or welcomed Pitts to exclaim that she should have his baby. And
though Pitts denied having made any further sex-based comments, Senanayake testified that he
regularly made statements about her physical appearance and about his desire to take her out on a
date. It is true that a one-time compliment of “you are beautiful” or a request to go on a date would
not constitute unwelcome harassment. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998) (ordinary flirtation not sufficient). But Senanayake testified that Pitts did much more – he
made specific comments about her breasts and legs, about her being “hot” and “sexy” and about
wanting to be with her. She also testified that she consistently refused his overtures and repeatedly
asked him to stop making such comments, but he persisted.

If a jury credited Senanayake’s

testimony, it could reasonably find that she was subjected to unwelcome harassment.
In order to prevail on her claim, plaintiff must also establish that the alleged sexual
harassment created a hostile work environment. The harassment must be so “severe or pervasive”
as to alter a “term, condition or privilege” of employment. Moore v. KUKA Welding Sys. & Robot
Corp., 171 F.3d 1073, 1078 (6th Cir. 1999). The court must consider the “totality of circumstances,”
including “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
16

with an employee’s work performance.” Williams v. CSX Transp. Co., 643 F.3d 502, 512 (6th Cir.
2011) (internal quotation marks omitted).

The inquiry has both objective and subjective

components: “whether a reasonable person would find the environment objectively hostile” and
“whether the plaintiff subjectively found the conduct ‘severe or pervasive.’” Williams v. Gen.
Motors, 187 F.3d at 568.
The court finds that there is sufficient evidence to support a finding that the alleged
harassment was sufficiently severe or pervasive as to alter the conditions of plaintiff’s employment.
Important to the court’s conclusion is the evidence that the alleged harassment lasted for at least
seven months and occurred nearly every time Senanayake had contact with Pitts and that the
demeaning conduct took place in settings in which Pitts undermined Senanayake in front of coworkers and the inmates over whom she was to exercise authority. Pitts made his first baby-making
comment near the beginning of her time as a corrections officer, and he made it in the presence of
co-workers and inmates. According to Senanayake, Pitts continued to make unwelcome comments
to her on a constant basis for the remaining seven months that she was a corrections officer. The
comments included baby-making type statements, requests that she go out with him, observations
about her body and appearance, and expressions of his desire to have her “on his arm” and marry
her. Some portion of the behavior occurred in the booking area of the jail, in front of co-workers
and inmates.
The alleged harassment also included several occasions in which Pitts tapped Senanayake’s
backside with a clipboard after roll call. As noted above, it is unclear when this conduct occurred,
but it likely started when she was reporting for ride-alongs. (Senanayake Dep. at 177). Senanayake
was unsure whether other officers saw the conduct take place. (Id. at 179-80). Nonetheless, it took
place in a room with deputies present, at a stage of her employment when Senanayake was
attempting get training and establish herself as a deputy.
The evidence further supports an inference that Senanayake could not easily avoid the
harassment. She testified that Pitts would come to the jail to see her and make comments to her
even when he did not have an inmate to drop off and thus lacked a job-related reason to be there.
She also regularly encountered him during roll call. And several months after she became a deputy,
he conducted a traffic stop of her when she was off-duty.
The alleged circumstances of this traffic stop bolster plaintiff’s claim. Pitts’s behavior was
more intimidating and perhaps more overtly sexual. Pitts let her know that he had turned off his

17

microphone and that he pulled her over solely to look what she was wearing. He made a remark
about her breasts and stated a desire to take her somewhere when he got off work.
Defendants argue that there is not sufficient evidence to establish that Senanayake suffered
any adverse effect from the alleged harassment. Defendants emphasize that Senanayake’s own
conduct, and not that of Pitts, was the reason why co-workers did not respect her. They cite
evidence that she was unduly critical of co-workers and that the Kissing Cop video was known to
co-workers and inmates alike.

Defendants further contend that Senanayake enjoyed special

treatment and protection from Sheriff Davis, who hastened her advancement to deputy and whose
retaliatory behavior dissuaded anyone from making even the slightest critique of her. (Doc. 69 at
14) (arguing that plaintiff “presents no corroborating evidence. . . . Given the shielded environment
Sheriff Davis created for her, no reasonable juror could believe the Sheriff would allow Dep. Pitts to
harass his girlfriend.”).
The considerations raised by defendants go to the weight of the evidence and are best left
for a jury to resolve. Much of the alleged harassment which Senanayake received from Pitts took
place before the period of alleged favoritism. A jury could reasonably find that she suffered severe
and pervasive sexual harassment as a corrections officer even if she later enjoyed favorable treatment
as a deputy. Senanayake has presented evidence that she experienced sustained harassment which
was demeaning, embarrassing and harmed her standing in the eyes of co-workers and inmates.
(Senanayake Dep. at 174-92). According to Senanayake, people mistreated her and interfered with
the performance of her job because “you have someone who is wearing the same uniform that
disrespects you.” (Id. at 192). She testified that Pitts made sexually-harassing comments to her at
the jail in front of inmates and that inmates would not show her “an ounce of respect.” (Id. at 227).
Inmates made comments similar to the ones made by Pitts, mocking her and saying that she could
not discipline them because they were merely repeating what her colleague had said to her.
Senanayake further testified that she received messages, some vulgar, from employees who exhibited
extreme disrespect towards her as a female officer. The court finds that this testimony, if credited,
would support a finding that the alleged harassment adversely interfered with her work and altered
the conditions of her employment. See Harris, 510 U.S. at 21 (“When the workplace is permeated
with discriminatory intimidation, ridicule, and insult, . . . that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an abusive working environment.”)
(internal quotation marks and citations omitted).

18

The final element of plaintiff’s claim is that the employer knew or should have known of the
charged sexual harassment and failed unreasonably to take prompt and appropriate corrective action.
“Generally, a response is adequate if it is reasonably calculated to end the harassment.” Jackson v.
Quanex Corp., 191 F.3d 647, 663 (6th Cir. 1999). Reasonably appropriate corrective action may
include “promptly initiating an investigation to determine the factual basis for the complaint,
speaking with the specific individuals identified by the complainant, following up with the
complainant regarding whether the harassment was continuing, and reporting the harassment to
others in management.” Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir. 2013)
(internal alterations and quotation marks omitted).
Defendants’ sole argument on this issue is that Sergeant Burke, Senanayake’s supervisor,
acted quickly and appropriately once he became aware that Pitts had made the first baby-making
comment to Senanayake. They argue that Burke said something to Pitts within a couple of days and
that Pitts was no longer flirtatious and instead adopted an impersonal, non-harassing demeanor
toward her.
The court must reject this argument as well. There is a genuine dispute of fact over what
exactly Senanayake told Burke and how Burke responded. Senanayake testified that she complained
to Burke about all of the comments Pitts made, while Burke testified that she told him about only
the first baby-making statement. As to Burke’s response, Senanayake believed that Burke did in fact
say something to Pitts but that Burke defended his friend Pitts and they both subsequently acted in a
threatening manner towards her, including Pitts engaging in sexually-harassing and stalking-type
behavior when he conducted the traffic stop of Senanayake. According to Burke, he said nothing at
all and took no action in response to Senanayake’s complaint, because Senanayake herself asked that
he not do anything. Depending on which parts of the testimony a jury found to be credible, a jury
could find that Burke was aware of the full array of unwelcome comments made by Pitts but failed
to take measures reasonably calculated to end the harassment.
Moreover, Senanayake has presented evidence that well before her conversation with Burke,
she made Sergeant Jackson, her supervisor at the jail, aware of Pitts’s behavior and that Jackson did
nothing in response. Senanayake testified that Jackson personally observed Pitts make sexually
harassing comments at the jail and that she complained to Jackson about the harassment and let her
know that it was “awful” and embarrassing. She further testified that Jackson witnessed Pitts come
to the jail for no reason other than to see her. (Senanayake Dep. at 186-87). Despite telling
Senanayake that she would handle the matter, Jackson never did and Pitts’s behavior continued.
19

Defendants tell a different version of events, but if a jury were to credit Senanayake’s testimony, it
could find that Jackson was aware of the sexual harassment and took no action to address it.
Accordingly, the court finds that defendants are not entitled to summary judgment against
plaintiff’s hostile work environment claim.
B.

Retaliation Claim

Title VII prohibits an employer from retaliating against an employee because he has opposed
an employment practice made unlawful under Title VII. 42 U.S.C. § 2000e–3(a). Where, as here, a
retaliation claim relies on circumstantial evidence, the claim is analyzed under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In order to establish a
prima facie retaliation case, plaintiff must show that: (1) she engaged in protected activity, (2) her
exercise of protected rights was known to her employer, (3) her employer thereafter took an adverse
employment action against her or she was subjected to severe or pervasive retaliatory harassment by
a supervisor, and (4) there was a causal connection between her protected activity and the adverse
employment action or harassment. Morris v. Oldham Cty. Fiscal Court, 201 F.3d 784, 792 (6th Cir.
2000).
Plaintiff has submitted evidence to support a finding that she engaged in protected activity.
Near the beginning of her time as a deputy, she approached Burke and told him about the sexuallyharassing conduct of Pitts. Several months later, she told Chief Petrozzi that Burke was retaliating
against her for having complained about Pitts.
Putting aside the second element of the prima facie case for the moment, the court notes that
complaint alleges two forms of retaliation: (1) termination and (2) unfair and intimidating treatment
from plaintiff’s supervisors and co-workers. (Doc. 22 at ¶¶ 115-16).
Defendants’ motion for summary judgment addresses only plaintiff’s termination.

In

response to the motion, plaintiff argues that the retaliatory conduct included more than the
termination. (Doc. 62 at 37). Senanayake testified that Burke and Pitts took on a cold and
intimidating demeanor toward her, that Pitts threatened to withhold back-up assistance because she
was a “snitch,” and that Burke unduly criticized the way she conducted traffic stops and unfairly
resisted her efforts to take leave. In their reply brief, defendants’ lone retort is that male officers
likewise found Burke to be “demanding and difficult to work for” and thus Burke “treated
[Senanayake] similarly to male subordinates.” (Doc. 69 at 31). Even if true, defendants’ assertion is
not fatal to plaintiff’s claim because the claim does not hinge on gender-based animus but rather on
retaliation against the exercise of a protected activity. For purposes of a prima facie case, plaintiff has
20

adequately shown a causal connection between her protected activity and the retaliation. She has
testified that Burke started treating her in an unfair, harsh and intimidating manner immediately after
she complained to him about Pitts, his friend.

Because defendants offer no other argument

regarding the second alleged form or retaliation, that aspect of plaintiff’s retaliation claim survives
the motion for summary judgment.
As for plaintiff’s termination, defendants argue that the second element of the prima facie case
is not satisfied because the decisonmakers, Acting Sheriff Vance and Captain Savage, had no
knowledge of her complaints. Defendants have submitted evidence that neither Vance nor Savage
knew, at the time they decided to terminate Senanayake, that she had complained of harassment by
Pitts or retaliation by Burke. (Vance Dep. at 49-50; Vance Aff. at ¶ 7; Savage Dep. at 78, 83-84, 121,
125, 228, 262, 271-72; Savage Aff. at ¶ 33, 38).
In response, plaintiff claims that “Vance testified that he was aware that Plaintiff had
complained about sexual harassment and retaliation,” but plaintiff does not cite any evidence in
support of this assertion. (Doc. 62 at 37). There is no testimony from Senanayake that she
informed Vance of her complaints, and Vance testified that he did not know about Senanayake’s
complaints of harassment and retaliation until after this lawsuit was filed. (Vance Dep. at 49-50).
The only “complaint” Vance knew about took place in the aftermath of Pitts accusing Senanayake
of racially profiling him in making the March 7, 2012 traffic stop.

To Vance’s knowledge,

Senanayake complained to Sheriff Davis about Pitts’s accusation, and Sheriff Davis then yelled at
Pitts and threatened to fire him. (Vance Dep. at 26-27; Vance Aff. at ¶ 6).
Plaintiff also asserts that both Vance and Savage must have known of Senanayake’s
complaint of retaliation by Burke because they were copied on an email chain about her IOC. The
court finds that the evidence does not support a reasonable inference in support of plaintiff’s
position. Senanayake submitted the IOC to Lieutenant Buttler requesting a meeting with the
command staff and Burke. Vance and Savage never saw the IOC. (Vance Aff. at ¶ 7; Savage Dep.
at 123). After not hearing back from Buttler, Senanayake emailed him (and copied Sheriff Davis,
Vance, Savage and Petrozzi) to ask about the status of the “requested meeting.” (Doc. 61-104 at 5).
Senanayake’s email did not make any reference to her complaint of retaliatory treatment by Burke.
Buttler responded that he had presented her IOC to Petrozzi, and Petrozzi emailed the command
staff, Vance and Savage included, asking about their availability for “a meeting with Deputy
Senanayake to discuss her concerns related to Sgt. Burke.” (Id. at 3).

21

There is no evidence showing the Vance and Savage knew of the backstory or context to
Senanayake’s “concerns,” such that they should have known that her concerns likely related to
alleged retaliation by Burke. Again, neither Vance nor Savage were aware that she had complained
to Burke about Pitts or had complained to Petrozzi about Burke.

Standing alone, the email

informed Vance and Savage only of the existence of “concerns” related to Burke; it did not make
them aware that Senanayake had complained of harassment and retaliation. Savage believed that the
requested meeting somehow involved Burke “not communicating well with her,” but “anything else
above that, [he didn’t] know what it was about.” (Savage Dep. at 125, 272). The meeting never took
place (due to Burke’s extended medical leave), and when Vance and Savage decided four months
later to release Senanayake from her probationary period, they still had no knowledge of the nature
of her concerns. (Vance Aff. at ¶ 7; Savage Aff. at ¶ 38).
The court further finds that even if plaintiff could establish a prima facie case of retaliatory
termination, defendants would be entitled to summary judgment because plaintiff would not be able
to rebut defendants’ legitimate, nondiscriminatory reason for her termination. See Martin v. Toledo
Cardiology Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008).

Defendants have submitted

extensive evidence of the performance-related reasons for their decision to terminate Senanayake’s
employment. The record of her incidents of misconduct and deficiencies included: at-fault accidents
in her police cruiser, failing to appear at court hearings, cell phone usage while operating a cruiser, a
lack of knowledge of police policies and procedures, an inability to navigate around the county,
preparing incomplete and inaccurate police reports, excessive leave usage, an unwillingness to learn
and hostility to correction and supervision. This led defendants to reasonably conclude that she had
not satisfactorily completed her probationary period.
When an employer meets its burden of establishing a legitimate, nondiscriminatory reason
for its action, the burden then shifts to plaintiff to demonstrate that the legitimate reason given by
the employer was a pretext for retaliation. Martin, 548 F.3d at 412. “In order to establish pretext, a
plaintiff must demonstrate that (1) the proffered reason had no basis in fact; (2) the proffered reason
did not actually motivate plaintiff’s termination; or (3) the proffered reason was insufficient to
motivate plaintiff’s discharge.” Id.
Plaintiff contends that the proffered reasons did not actually motivate her termination. She
argues that the End-of-Probation Review included unsubstantiated accusations which Vance and
Savage accepted as true without regard to whether the accusations had been properly investigated.

22

In her view, Vance and Savage acted upon retaliatory motives rather than out of true concern for
her alleged misconduct and deficiencies.
The court finds that plaintiff has failed to create a genuine issue of material fact regarding
this theory of pretext. Defendants have established that, without dispute, Senanayake’s supervisors
operated in an environment in which they legitimately feared retaliation from Sheriff Davis when
they investigated her or attempted to correct a performance problem. (Burke Aff. at ¶¶ 3-5; Dore
Aff. at ¶ 2; Petrozzi Aff. at ¶¶ 9, 11; Spring Aff. at ¶ 3; Turner Aff. at ¶ 3). Despite not documenting
every issue they had with Senanayake and despite knowing that Sheriff Davis’s influence precluded
the usual course of investigation and discipline, her supervisors did keep record of numerous issues
and deficiencies that they personally observed or investigated and found to be substantiated. (Docs.
61-75; 61-80; 61-83; 61-85; 61-86; 61-88; 61-91; 61-116; Petrozzi Aff. at ¶ 17). Savage included
many of these incidents in his listings of “Disciplinary Issues” and “Documented Incidents” in the
End-of-Probation Review.
Though broadly claiming that the Review was based on unsubstantiated accusations, plaintiff
points to only two items in the Review as having been unsubstantiated and accepted as true by
Vance and Savage. The first is a January 2012 incident in which Senanayake allegedly got into an
altercation with another deputy while at the scene of a shooting. However, the Review specifically
stated that “[u]pon review of the incident it was undetermined what actually transpired between the
two of them.” (Doc. 61-91 at 4). Savage did not merely accept the accusation as true; he expressly
noted in the Review that he could not determine what had occurred.
The second item is the accusation Pitts made in March 2012 that Senanayake had racially
profiled him in making a traffic stop. However, the Review described the matter as simply a
“complaint” and did not characterize the accusation as being true. It is undisputed that Vance and
Savage both knew that the accusation was not investigated because Sheriff Davis had intervened and
threatened to fire Pitts. (Vance Aff. at ¶ 6; Savage Aff. at ¶ 39). The Review thus described the
complaint for what Vance and Savage knew it to be – an accusation that had not been investigated
or substantiated. Plaintiff has put forth no evidence showing that Vance and Savage treated the
accusation as being true.
Plaintiff’s next theory regarding pretext is that her misconduct and deficiencies were
insufficient to justify termination because she committed minor offenses or made mistakes that
other deputies had made. It is true that, when viewed in isolation, a handful of her offenses appear
to be minor (reporting to work without her tie) or mistakes that others had made (missing court).
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But plaintiff was not an employee who committed only a few isolated mistakes. The unrebutted
evidence establishes that her combined instances of misconduct and deficiencies numbered in the
dozens and included serious and repeated problems. This record of issues, along with Senanayake’s
unwillingness to learn and hostility to correction, led Vance and Savage to conclude that her poor
performance warranted termination. (Savage Aff. at ¶ 38) (stating that he and Vance based their
decision on the totality of events). A jury could not reasonably conclude that plaintiff’s termination
was based solely on minor or common mistakes.
Finally, plaintiff contends that her misconduct and deficiencies were insufficient to justify
termination because Sheriff Davis had a practice of giving probationary deputies a six-month
extension of their probationary periods. (Doc. 66-2). Again, however, plaintiff’s argument ignores
her poor performance record. Defendants have demonstrated that Lee Ranzy, the only other
probationary deputy with performance problems as extensive as plaintiff’s, was not given a sixmonth extension in 2009. (Vance Aff. at ¶ 8; Docs. 61-33, 61-120). Moreover, when Vance became
Acting Sheriff, he ceased the practice of six-month extensions. (Aug. 4, 2016 Savage Aff. at ¶ 9).
Ohio law provides that probationary periods shall be “no more than one year.” O.R.C. § 127.27(B).
The Delaware County Sheriff’s Office has not granted any six-month extensions to probationary
employees since Sheriff Davis’s resignation. (Aug. 4, 2016 Savage Aff. at ¶ 9). In sum, a jury could
not reasonably find that defendants’ decision to terminate plaintiff instead of extending her
probationary period shows that defendants’ stated reasons for terminating her were pretext for
retaliation.
Accordingly, the court finds that defendants are entitled to summary judgment on plaintiff’s
claim that her termination was an unlawful act of retaliation.
C.

Sex Discrimination

Plaintiff claims that she was terminated because she is a woman, while male deputies with
disciplinary issues were not terminated. Title VII prohibits discrimination against an employee on
the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Defendants argue as a threshold matter that plaintiff’s
claim fails because she did not include this claim of sex discrimination in her EEOC charge.
In a state like Ohio with its own employment discrimination laws, a plaintiff must file a
complaint with the EEOC within 300 days of an unlawful employment action in order to then bring
a Title VII claim. Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001). A charge of
discrimination must contain “a written statement sufficiently precise to identify the parties, and to
describe generally the action or practices complained of.” 29 C.F.R. § 1601.12(b). “The purpose of
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filing a charge of discrimination is to trigger the investigatory and conciliatory procedures of the
EEOC so that the Commission may first attempt to obtain voluntary compliance with the law.”
Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998).

“These

investigatory and conciliatory procedures notify potential defendants of the nature of plaintiffs’
claims and provide them the opportunity to settle the claims before the EEOC rather than litigate
them.” Id.
Plaintiff filed an EEOC charge on May 1, 2012 in which she checked boxes for
discrimination based on race, 7 retaliation and sex. In her statement providing the particulars of the
discrimination, plaintiff confined her description of the alleged sex discrimination to sexual
harassment: “Rashad Pitts (former co-worker) has continually harassed me with unwanted sexual
comments . . . . I believe that I was sexually harassed due to my sex, female . . . .” (Doc. 61-123).
The charge also alleged that plaintiff was discharged in retaliation for complaining about the
harassment and because of her race, but it contained no allegation that her termination was based on
her sex.
A charge is sufficient to support claims broader than those charged when either “the EEOC
investigation of one charge in fact reveals evidence of a different type of discrimination against the
plaintiff” or “where facts related with respect to the charged claim would prompt the EEOC to
investigate a different, uncharged claim.” Davis, 157 F.3d at 463 (emphasis added).
In response to the motion for summary judgment, plaintiff relies only on the first exception.
In a single sentence she argues, “Here, Plaintiff’s assertions regarding sexual harassment and
retaliation prompted the EEOC to explore sex discrimination claims as well.” (Doc. 62 at 22).
Plaintiff provides no citation to evidence or any further explanation in support of this assertion. In
the Right to Sue notice received by plaintiff, the EEOC simply stated that it was “unable to
conclude” that there were “violations of the statutes” by defendants. (Doc. 1-1). The EEOC did
not indicate that it had investigated, or found evidence of, plaintiff’s termination as an act of sex
discrimination. Because plaintiff has not established that the EEOC investigation of her charge in
fact revealed evidence of sex discrimination, her sex discrimination claim is time-barred.
Even if plaintiff’s EEOC charge were deemed to be sufficient to encompass her sex
discrimination claim, the court finds that defendants are entitled to summary judgment because
plaintiff has not presented facts from which a jury could reasonably conclude that her termination
Senanayake’s father is Sri Lankan. (Doc. 61-30; Senanayake Dep at 17, 36).
discrimination claim is not part of this lawsuit.
7

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A racial

was pretext for sex discrimination. Plaintiff repeats the same pretext arguments as she offered with
respect to her retaliation claim, and the court finds that these arguments fail for the reasons stated
above. Regarding her failure-to-receive-an-extension theory of pretext, defendants have established
that a male probationary employee, Lee Ranzy, did not receive an extension and was terminated for
reasons similar to the ones for which Senanayake was terminated.
D.

Disability Discrimination

Plaintiff alleges that her knee injury caused her to be disabled and that defendants terminated
her because of this disability. An essential element of a claim under the ADA is that the plaintiff is
an individual with a disability. Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2004).
A “disability” is defined as: “(A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C. § 12102(2); Toyota Motor Mfg., Kentucky, Inc.
v. Williams, 534 U.S. 184, 193 (2002).
Only the first definition of disability is at issue here. In determining whether an individual is
substantially limited in performing a major life activity, courts consider the following factors: “(1) the
nature and severity of the impairment; (2) the duration or expected duration of the impairment, and
(3) the permanent or long-term impact of the impairment.” Cardenas-Meade v. Pfizer, Inc., 510
Fed. App’x 367, 370 (6th Cir. 2013); Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 581 (6th Cir.
2007). “Generally, short-term temporary restrictions are not substantially limiting.” Roush v.
Weastec, Inc., 96 F.3d 840, 843 (6th Cir. 1996); see also Guzman–Rosario v. United Parcel Serv.,
397 F.3d 6, 10 (1st Cir. 2005) (holding that impairments that are “foreseeably temporary” cannot be
disabilities); Summers v. Altarum Institute, Corp., 740 F.3d 325, 329 (2nd Cir. 2014) (temporary
impairments may be covered only if sufficiently severe).
Defendants argue that there is no evidence from which a jury could find that plaintiff had a
physical impairment which substantially limited a major life activity. The court agrees, and plaintiff’s
response brief offers no argument to the contrary. Plaintiff suffered a knee contusion which caused
temporary pain and swelling.

An MRI showed that Senanayake did not tear her meniscus.

According to plaintiff’s own deposition testimony and medical records, within three weeks of the
injury her knee was “a lot better,” she had a full range of motion, the swelling was gone and her
doctor released her to immediately return to “full activities unrestricted.”

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IV.

Conclusion
For the reasons set forth above, defendants’ motion for summary judgment (Doc. 61) is

granted in part and denied in part. The motion is granted as to plaintiff’s claim for retaliatory
termination, sex discrimination and disability discrimination. The motion is denied as to plaintiff’s
claim for hostile work environment and retaliation based on conduct other than termination.

s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: June 22, 2017

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