Puckett v. Village of Anna, Ohio et al

Filing 39

ENTRY AND ORDER granting 26 Defendants' Motion for Summary Judgment and terminating case. Signed by Judge Thomas M. Rose on 1-19-2017. (de)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

Sarah Puckett,
Plaintiff,
v.

Case No. 3:15-CV-193
Judge Thomas M. Rose

Village of Anna, Ohio, et al.,
Defendants.

ENTRY AND ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT, (DOC. 26), AND TERMINATING CASE.
______________________________________________________________________________
Pending before the Court is Defendants’ Motion for Summary Judgment. (Doc. 26).
Plaintiff Sarah Puckett filed a lawsuit against Defendants Scott Evans and the Village of Anna,
Ohio asserting gender based discrimination in violation of the equal protection guarantees of 42
U.S.C. § 1983 as well as a claim under state law asserting pregnancy discrimination in violation
of Ohio Revised Code §§ 4112.02(A) and 4112.99. (Doc. 1). Puckett decries that she was not
hired as a part-time patrolman for the Village of Anna police department. Because no part-time
police officer position existed in the Village of Anna, Defendants’ motion will be granted.
I.

Background
Plaintiff Sarah Puckett has served as a police officer for Fort Jennings, Ohio for five

years. (Puckett Dep. Vol. I at 8; Cotterman Dep. 12-14, PageID 170-72). Puckett also worked
with the Jackson Center, Ohio police department as an auxiliary officer for six months. (Puckett
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Dep. Vol. I at 18). She testified in her deposition that she was hired by the Village of Anna but
that she was never placed on the street. (Puckett Dep. Vol. I at 13).
In November or December of 2012, Puckett met Defendant Village of Anna Police Chief
Scott Evans at the home of Jackson Center Police Chief Joseph Cotterman. While Puckett was at
Cotterman's home, Puckett mentioned not being entirely happy with her position at Fort
Jennings. Chief Evans said that she could have a job with Anna. (Cotterman Dep Doc. 21,
PageID 169, 171). Plaintiff took this as offering a position as a part-time patrolman. Cotterman
understood that “he would put her on.” (Cotterman Dep. Doc. 21, PageID 174). Puckett’s
memory was that Evans stated “Come over, fill out an application and I'll give you a job.”
(Puckett Dep. Vol. I at 48, 49). Puckett understood the application to be a formality. (Puckett
Dep. Vol. I at 25).
Puckett later completed the steps necessary for hire, including filling out W-2s. (Puckett
Dep. Vol. I at 26). She filled out her application for the Village of Anna Police Department on
December 5, 2012 and handed it to Evans in person. (Puckett Dep. Vol. I at 29, 60). At the
request of Chief Evans, Plaintiff brought in her certificates and diplomas. Evans told her that she
had to go for a drug test, which she did. She also had a physical done at Wilson Memorial
Hospital in Sidney. (Puckett Dep. Vol. I at 59-62). In the Wilson Memorial Hospital paperwork,
the blank space next to “prospective employer” on her Health History Form is filled in with
“Village of Anna.” Volume I, ex. B.
She testified that she did not know that she was pregnant when she went to Wilson
Memorial Hospital. Puckett claims that even though the Health History Form refers to the
Village of Anna as being the "prospective employer," the offer of employment was already
made. (Puckett Dep. Vol. I at 62, 63).
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After the drug screen and physical, Chief Evans had Plaintiff come in to fill out W-4s and
her PERS retirement paperwork. She received patches1 and was told what uniform to purchase.
Evans told Puckett at this time that he would get her sworn in in a couple of weeks. (Puckett
Dep. Vol. I at 79 at patches at Exhibit G thereto). After she finished her paperwork, Chief Evans
took her on a tour of the village, showing her where the new office was going to be and where
the school was. She assumed that the Chief of Police did the hiring for the Village of Anna.
(Puckett Dep. Vol. I at 83, 84).

Puckett testified that Evans told her that he was badly

understaffed and that she could have all the hours that she wanted and that they had a part-time
position that he was looking to fill and that the position would be moving to full-time. (Puckett
Dep. Vol. I at 88).
At this second meeting in Anna, after the tour, Evans introduced Puckett to other people
there and said that she was going to be their newest officer. (Puckett Dep. Vol. I at 104). In
Puckett’s experience, villages have a common practice that the chief brings the person in that
they want before the mayor and the mayor swears them in. (Puckett Dep. Vol. I at 85).
Puckett was unsure of the date to be sworn in but understood there was one other
gentleman whom the Mayor was to swear in. (Puckett Dep. Vol. I at 86, 87). Puckett found out
she was pregnant the day before she was to be sworn in as a Village of Anna police officer. She
took the pregnancy test in January of 2013. (Puckett Dep. Vol. I at 63, 64). She called Evans and
told him that she was pregnant. Puckett claims Evans said that it was not an issue and that he
would swear her in at a later date––after she had the baby. (Puckett Dep. Vol. I at 96, 101).2

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Chief Evans testified he sometimes gives patches to applicants to thank them for their interest (Deposition
Transcript of S. Puckett, Volume I, at 79; Doc. 22, Deposition Transcript of S. Evans, at PageID 207. Plaintiff
concedes that some people collect patches from law enforcement agencies. Deposition Transcript of S. Puckett,
Volume I, at 119).
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Chief Evans says Puckett told him she needed to withdraw her application, and he told her he would, and to let him
know when she was interested in resuming the process (Doc. 22, Deposition Transcript of S. Evans, at PageID 207).

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According to Puckett, she told Chief Evans that she could do paperwork and desk duties.
(Puckett Dep. Vol. I at 107, 110, 111). Puckett claims to have talked to Evans 1-2 times per
month until she gave birth, during which talks he would tell her that he was still holding her job
and that he was waiting on her to have her baby. She testified that she offered to come in and do
desk work, but Evans said that was not necessary––she should wait until she had her baby.
(Puckett Dep. Vol. I at 112, 113).
Puckett had serious medical issues with her pregnancy, and her doctor took her off work
from the Fort Jennings Police Department, where she worked as an auxiliary officer, from April
of 2013 through November of 2013 (Deposition of S. Puckett, Volume II, at 207-10).
Puckett gave birth on September 11, 2013. (Puckett Dep. Vol. I at 115). Plaintiff spoke
to Chief Evans in June, July and August of 2013. (Puckett Dep. Vol. I at 115). However, after
she gave birth, efforts to reach Evans by phone failed. She made over a dozen attempts before
January of 2015, all without success. (Puckett Dep. Vol. I at 116-17, 120). According to
Puckett’s telephone records, she called Chief Evans on July 29, 2013, July 30, 2013, September
16, 2013, October 30, 2013, December 30, 2013, January 2, 2014, January 3, 2014, and August
28, 2014, and all of the calls lasted one minute or less. (Deposition of S. Puckett, Volume III, at
247-248). She was routinely hung up on and found that the Village of Anna had hired others as
auxiliary officers. (Puckett Dep. Vol. I at 121, 130, Exs. E and F). Plaintiff’s husband, John
Puckett, himself a village police chief, advised Plaintiff to go to council over it. (John Puckett
Dep. Doc. 20, PageID 87).
Chief Evans was on administrative leave from the Village of Anna from August 2013
through November of 2013. (Exhibit C, Declaration of S. Evans, at ¶4). There was also debate
occurring in the Village’s council regarding the disbandment of the Village’s police department
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throughout 2013 and into 2014. (Ex. A, Decl. of N. Benroth, at ¶6). Ultimately, the movement to
disband the police department was tabled in January of 2015 (Id., S. Puckett Dep., Ex. G at 1).
Puckett decided to attend a Village Council meeting on January 27, 2015. (S. Puckett
Dep. Vol. I at 142 and Ex. G). Arriving at the council meeting, her cell phone rang while she
was still in the parking lot. Puckett heard the Mayor tell her that she did not need to attend the
meeting. Puckett informed him that she was already there. When Puckett entered the building,
the Mayor sent her over to the police department to talk to Chief Evans. Evans showed her all of
the paperwork she had filled out and showed where the Mayor had not signed off on swearing
her in. Eventually, Chief Evans yelled at her that she was making too big a deal out of the
situation. (Puckett Dep. Vol. I at 157.) Puckett asserts that Evans told her that her pregnancy
was a problem, that she could not work while pregnant, and that it was dangerous for both her
and the baby. (Id.) Puckett retorted, “We’ll just see what council has to say about this” and went
into council chambers. (Id.)
The minutes of the January 27, 2015 Council meeting recount Puckett’s protestation:
that she was officially hired because she filled out the paperwork,
was given patches and took a drug screen but the Mayor pointed
out that she had not been sworn in. She delivered her baby in
September of 2013 and gave Chief Evans a call a week after the
birth. She alleges that Evans has never returned her calls. At that
time, the Village was not in a position to hire any more officers.
She noted that officers were recently hired but she was not
contacted for the open positions. Evans assured her that her name
was still on the list.
Deposition of Sarah Puckett, Ex. G at 1.
On May 30, 2015, Sarah Puckett filed a complaint in this Court charging Defendants
Scott Evans and the Village of Anna, Ohio with gender discrimination in violation of the equal

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protection guarantees of 42 U.S.C. § 1983 and with pregnancy discrimination in violation of the
state law guarantee found in Ohio Revised Code §§ 4112.02(A) and 4112.99. (Doc. 1).
II.

Legal Standard
The standard of review applicable to motions for summary judgment is established by

Federal Rule of Civil Procedure 56 and associated case law. Rule 56 provides that summary
judgment Ashall be rendered forthwith if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.@ Fed.
R. Civ. 56(c). Alternatively, summary judgment is denied A[i]f there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.@ Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). Thus, summary judgment
must be entered Aagainst a party who fails to make a showing sufficient to establish the existence
of an element essential to that party=s case, and on which that party will bear the burden of proof
at trial.@ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The party seeking summary judgment has the initial burden of informing the court of the
basis for its motion, and identifying those portions of the pleadings, depositions, answers to
interrogatories, admissions and affidavits which it believes demonstrate the absence of a genuine
issue of material fact. Id., at 323. The burden then shifts to the nonmoving party who Amust set
forth specific facts showing that there is a genuine issue for trial.@ Anderson, 477 U.S., at 250,
(quoting Fed. R. Civ. 56(e)).
Once the burden of production has shifted, the party opposing summary judgment cannot
rest on its pleadings or merely reassert its previous allegations. It is not sufficient to Asimply
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show that there is some metaphysical doubt as to the material facts.@ Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 Arequires the nonmoving party to
go beyond the pleadings@ and present some type of evidentiary material in support of its position.
Celotex Corp., 477 U.S., at 324.
In determining whether a genuine issue of material fact exists, a court must assume as
true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that
party. Anderson, 477 U.S., at 255. If the parties present conflicting evidence, a court may not
decide which evidence to believe by determining which parties= affiants are more credible. 10A
Wright & Miller, Federal Practice and Procedure, ' 2726. Rather, credibility determinations
must be left to the fact-finder. Id.
Finally, in ruling on a motion for summary judgment, A[a] district court is notYobligated
to wade through and search the entire record for some specific facts that might support the
nonmoving party=s claim.@ InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Thus, in determining whether a genuine issue of material fact exists on a particular issue, the
Court is entitled to rely upon the Rule 56 evidence specifically called to its attention by the
parties.
In addition to moving for summary judgment on Plaintiff=s federal claim, Defendants
seek summary judgment on Plaintiff=s claim brought under Ohio law. In reviewing an Ohio
claim, this Court must apply the law of Ohio, as interpreted by the Supreme Court of Ohio.
Northland Ins. Co. v. Guardsman Prods. Inc., 141 F.3d 612, 617 (6th Cir. 1998). Specifically,
this Court must apply the substantive law of Ohio A>in accordance with the then-controlling
decision of the highest court of the State.’@ Imperial Hotels Corp. v. Dore, 257 F.3d 615, 620
(6th Cir. 2001) (quoting Pedigo v. UNUM Life Ins. Co., 145 F.3d 804, 808 (6th Cir. 1998). Also,
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to the extent that the highest court in Ohio has not addressed the issue presented, this Court must
anticipate how Ohio=s highest court would rule. Id. (quoting Bailey Farms, Inc. v. NOR-AM
Chem. Co., 27 F.3d 188, 191 (6th Cir. 1994).
III.

Analysis
The Sixth Circuit has discussed Equal Protection gender discrimination claims as

follows:
Individuals have a right, protected by the Equal Protection clause
of the Fourteenth Amendment, to be free from discrimination on
the basis of sex in public employment. Davis v. Passman, 442 U.S.
228, 234-35 (1979). To make out such a claim, a plaintiff must
prove that he suffered purposeful or intentional discrimination on
the basis of gender. Village of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 264-65 (1977). As this Court has noted
several times, "the showing a plaintiff must make to recover on a
disparate treatment claim under Title VII mirrors that which must
be made to recover on an equal protection claim under section §
1983." Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988)
(citing Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, 1011
(6th Cir. 1987); Daniels v. Bd. of Educ., 805 F.2d 203, 207 (6th
Cir. 1986); Grano v. Dep't of Dev., 637 F.2d 1073, 1081-82 (6th
Cir. 1980); Lautermilch v. Findlay City Schs., 314 F.3d 271, 275
(6th Cir. 2003) ("To prove a violation of the equal protection
clause under § 1983, [a plaintiff] must prove the same elements as
are required to establish a disparate treatment claim under Title
VII.") (quotation and citation omitted).
Smith v. City of Salem, 378 F.3d 566, 576-77 (6th Cir. 2004)
The Equal Protection claim is analyzed under federal law governing Title VII actions,
and Puckett’s state law claim is also analyzed under this same framework. DeNoma v. Hamilton
Cnty. Court of Common Pleas, 2015 U.S. App. LEXIS 16589 (6th Cir. 2015). Title VII prohibits
an employer's use of an employee's sex as a "motivating factor" for an adverse employment
action, even if other factors motivated the action. Id. (citing 42 U.S.C. § 2000e-2(a)(1), (m)).
Plaintiff may show discrimination by direct or indirect evidence.
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Direct evidence is “that evidence which, if believed, requires the conclusion that unlawful
discrimination was at least a motivating factor in the employer's actions.” Jacklyn v.
ScheringPlough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). See also
Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998) (explaining that direct evidence is
similar to an employer stating, “I fired you because you are disabled”). The evidence must
establish not only that the plaintiff's employer was predisposed to discriminate on the basis of
pregnancy, but also that the employer acted on that predisposition. Hein v. All Am. Plywood Co.,
232 F.3d 482, 488 (6th Cir. 2000).

In considering whether a comment by the employer

constitutes evidence of discrimination, the Sixth Circuit has applied four factors:
(1) Whether the disputed comments were made by the decision
maker; (2) Whether the alleged comments related to the decisionmaking process; (3) Whether the statements were vague,
ambiguous, or isolated remarks; and (4) Whether the disputed
remarks were made proximate in time to the [adverse employment
decision].
Cooley v. Carmike Cinemas, 25 F.3d 1325, 1330 (6th Cir. 1994).
Plaintiff pointedly decries not being hired as a part-time officer. Under Ohio law, the
village mayor is the appointing authority for full-time and part-time police officers. O.R.C.
§737.16. Before the village mayor can appoint a full-time or part-time police officer, the mayor
first must be given legislative authority to do so by the village council. Id. This depends on
whether the village has funding in its budget to hire a full-time or part-time police officer
(Exhibit A, Declaration of N. Benroth, at ¶4).
The Village of Anna has only established the position of a full-time police officer under
its ordinances. Village of Anna, Ohio, Code of Ordinances, Title III, Chapter 33, §33.020. There
is no legal authority for a part-time police officer to be hired in Anna, and there is no funding
that has been earmarked for such a position (Exhibit A, Declaration of N. Benroth, at ¶9, 11).
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Even Plaintiff’s witness Joe Cotterman, Chief of Police of Jackson Center, Ohio testified
that as Chief of Jackson Center, he had authority to present matters to the Mayor of Jackson
Center, but that the Mayor had ultimate authority. (Cotterman Dep. Doc. 21, PageID 161).
Thus, while in Plaintiff’s initial conversation with Chief Evans after she told him she was
pregnant, where she alleges that he told her that he would keep her job as a part-time officer, and
“she would be sworn in after she has her baby,” demonstrates direct evidence of a willingness to
discriminate, Chief Evans was not the decision maker, and no part-time position existed for
Chief Evans to hold for Puckett.
That Chief Evans was not the decision maker could be overcome, given the facts of the
case. The Sixth Circuit recognizes that an “influential recommender” may be liable under§
1983, without being the final decision maker, if the recommendations are shown to be
sufficiently influential. See, e.g., Stinebaugh v. City of Wapakoneta, 630 Fed. Appx. 522, 530,
n.2 (6th Cir. 2015)(citing Ward v. Athens City Bd. of Educ., No. 97-5967, 1999 U.S. App. LEXIS
22766, 1999 WL 623730, at *8 (6th Cir. Aug. 11, 1999). There is no evidence to support a
contention that the Mayor relied upon Chief Evans’ recommendations, indeed Chief Evans
testified that the mayor would rarely ask for his input in hiring decisions, outside of basic
questions about credentials or background checks, and the mayor had rejected one or two
applicants that Chief Evans had recommended (Doc. 22, Deposition of S. Evans, at PageID 210).
However, given that Evans did not forward Puckett’s paperwork to the Mayor, (see Defendants’
Motion for Summary Judgment, Doc. 26, PageID 359), the Mayor had no choice but to follow
Evans’ opinion about Puckett. Because Evans’ decision regarding Puckett was the final decision
on the matter, his discriminatory reason could be imputed to the Mayor.

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Defendants are only saved by the absence of the position Puckett decries not receiving.
“I understood was that my position was going to be as part-time with the Village of Anna, not
auxiliary.” (S. Puckett Depo, Vol. I, 87). “He told me…that I could have all the hours that I
wanted. He said that they had a part-time position that he was looking to fill and that soon that
position would be moving to full-time because they were looking at annexing in a housing
section on the southeast side of the village on the other side of I-75.” (S. Puckett Depo, Vol. I,
88.) There is no evidence that the Village of Anna had a part-time police position at any point in
time relevant to this lawsuit, nor that funding existed for such a position.
Puckett’s complaint claims to have been denied not an auxiliary position, but a position
as a “part-time patrolman.” Doc. 1 at PageID 3, ¶7. That Puckett does not seek an auxiliary
position is emphasized by her recitation that Chief Evans promised her “all the hours that I
wanted.” (S. Puckett Dep., Vol. I, 88.) Auxiliary officers were authorized to work only up to 25
hours a week. (Ex. A, Decl. of N. Benroth, at ¶12).
As a matter of law, no adverse employment decision occurred, because there was no parttime position in the Village of Anna Police Department. There cannot be a “failure to hire”
claim when the position Puckett believes she was hired or promised to be hired for does not
exist. Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 n. 44 (1977)(“the
McDonnell Douglas formula…does demand that the alleged discriminatee demonstrate at least
that his rejection did not result from the two most common legitimate reasons on which an
employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the
absence of a vacancy in the job sought.”); see also Lula v. Network Appliance, 255 F. App'x 610,
612 (3d Cir. 2007)(“the position did not remain open and was immediately deactivated.”); and
Miller v. Rayonier, Inc., 2001 WL 1134732, at *4 (S.D. Ga. Aug. 1, 2001)(Defendant “could not
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have discriminated on the basis of race or any other factor because the positions did not exist.”).
Thus, in the instant case, there was no adverse employment decision.
As for Plaintiff’s claims against the Village of Anna, liability under Monell v. Dep't of
Soc. Servs., 436 U.S. 658 (1978) requires an underlying constitutional violation. See, e.g.,
Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014); Scott v. Clay Cnty., Tenn., 205 F.3d 867,
879 (6th Cir. 2000)(Krupansky, J.). Given the Court’s determination that no constitutional
violation occurred, there can be no Monell liability against Anna in this matter. Moreover,
Puckett’s complaint fails to allege the existence of any unconstitutional policies in Anna, and
Puckett has identified no such policies in discovery, or that such policies were a “moving force”
behind the alleged violation. Accordingly, there is no viable Monell claim against Anna based
upon any village policies.
IV.

Conclusion
Because no part-time police officer position existed in the Village of Anna, precluding an

adverse employment action by denial to it, Defendants’ Motion for Summary Judgment (doc. 26)
is GRANTED. The captioned cause is hereby TERMINATED upon the docket records of the
United States District Court for the Southern District of Ohio, Western Division, at Dayton.
DONE and ORDERED in Dayton, Ohio, this Thursday, January 19, 2017.

s/Thomas M. Rose
_______________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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