Opinion
Case No. 5:99 CV 774.
July 13, 2000.
MEMORANDUM OF OPINION AND ORDER
Plaintiff Mattie Thomas, a former employee of Children's Hospital Medical Center of Akron, brings this action alleging the following claims: Count 1 — race, age and/or handicap discrimination; Count II — tortious wrongful discipline and/or discharge; Count V — race discrimination pursuant to § 1981; and Count VI — disability discrimination under the federal Rehabilitation Act.
Count III — implied contract and Count IV — promissory estoppel were dismissed with prejudice by Order of June 19, 2000.
Before the Court is Defendant Children's Hospital Medical Center of Akron and Nancy Gloyd's Motion for Summary Judgment (Doc. No. 18). In response, Plaintiff filed a Rule 56 motion to continue the summary judgment proceedings and to continue the trial date. The motion for continuance was denied by Order of June 19, 2000. Together with the motion to continue, Plaintiff also filed a Memorandum of Partial Opposition to Defendants' Motion for Summary Judgement (Doc. No. 26), and later, a document entitled "Plaintiff's Counsel's Supplemental Declaration Contra Summary Judgment (Doc. No. 30). In addition, Plaintiff filed a Memorandum and Certificate of Genuine Issues of Material Fact in Opposition to Defendants' Motion for Summary Judgment (Doc. No. 33), and a Rule 56(e) Supplemental Affidavit (Doc. No. 34).
Defendant Claire Schelble, never having been served with the summons and complaint in this matter, is hereby DISMISSED pursuant to Fed.R.Civ.P. 4(h) and (m), requiring service upon the individual within 120 days after filing of the Complaint.
To this pleading (Doc. No. 30), counsel attaches a volume of different records, letters, etc., and explains that these are records produced to Plaintiff by the Defendants during discovery. However, except for a few select attachments, counsel has not explained their purpose or relevance.
Defendants filed a Reply (Doc. No. 28), as well as a Supplemental Reply (Doc. No. 36) to their motion for summary judgment. For the reasons that follow, Defendant's motion for summary judgment is GRANTED.
I. SUMMARY JUDGMENT STANDARD
Summary judgment "shall 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). All facts and inferences drawn therefrom must be viewed in a light most favorable to the nonmoving party. See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993). If, after reviewing the record as a whole, a rational factfinder could not find for the nonmoving party, summary judgment is appropriate since there is no genuine issue of material fact for determination at trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately, the Court must decide "whether the evidence presents 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." Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
II. FACTS
The Court notes at the outset that Plaintiff's allegations in the Complaint were vague, and after ten months of discovery, and the filing by Plaintiff of three memoranda and an affidavit, it is still unclear what she is alleging. While counsel cites to the applicable law in discrimination claims, there is a failure to apply that law to the facts of his client's case and thereby support Plaintiff's claims with relevant evidence. However, in trying to discern the facts in a light most favorable to the Plaintiff, the following facts have been introduced through affidavits, Plaintiff's deposition, and through the pleadings.
Defendant points out, and the Court notes, that despite having more than ten months of allowable discovery in this case, Plaintiff took no depositions of witnesses in this case. In fact, the only deposition that was taken, was the Plaintiff's deposition taken by the defense (Doc. No. 18 at 1, n. 1; Doc. No. 28 at 3-4).
Plaintiff Mattie Thomas is a 50-year-old African-American female with a two-year associate's degree in business. Plaintiff began her employment with Children's Hospital Medical Center of Akron (hereafter "the Hospital") in October of 1972. She was employed with the Defendant for almost 25 years, from 1972 until 1997.
In September of 1975, Plaintiff held the position as Medical Records Clerk and her duties included processing correspondence received from attorneys, insurance companies, physicians and parents concerning the Hospital's medical records, including logging and copying of requested records. She was also responsible for patient name and number changes. From this time, until September 1996, Plaintiff's employment record was satisfactory and without incident or discipline. Plaintiff maintains that throughout her first 23 years of employment, she had "never been written up before" (Pltf. Aff at 33-35).
In September of 1996, the Medical Records Department underwent changes, including the appointment of a new supervisor, Ms. Nancy Gloyd. Around the same time, Mr. Bob Anthony, former Director of Quality Services, was given oversight responsibility for the entire Medical Records Department. Departmental changes were made to operating procedures and priorities, including the priorities of the work performed by Plaintiff Mattie Thomas. Plaintiff claims that it was after this time that her problems began.
Plaintiff alleges that after she came under the supervision of Nancy Gloyd, she was "generally treated more harshly and disciplined differently and more severely than similarly situated younger white employees" (Doc. No. 26 at 2). During her deposition she testified that:
I was talked to differently. I was — had rules set for me that other people didn't have in the department and I was watched and followed. I had things that was taken off of my desk and other people didn't do that.
I was stopped receiving mail, a reason wasn't given. I was stopped communication with other departments, a reason wasn't given; and I was stopped material receiving to help me with my job, a reason wasn't given.
I was told when I leave the department that I was supposed to tell someone where I was going and other people wasn't told that. I was asked to be — to tell when I would go to the rest room and other people wasn't told that.
* * * *
Other people was given updates of computer systems and I wasn't, which I needed for my job function. Other people were sent to training for helping them on their job, which I was never sent; and some other people was sent, just particular people was sent; and then they had meetings of some of my job functions and I wasn't included in it.
Plaintiff's Depo. at 18-19.
Plaintiff claims that she "was formally disciplined or 'written up' by defendant Nancy Gloyd 'every other week,'" and alleges that this began at about the same time that she had complained to the Hospital's administrative department about mistreatment and harassment. (Doc. No. 26 at 2).
Plaintiff further maintains that she "downgraded" in her last year for "alleged shortcomings similar to those of similarly situated, younger, white and non-handicapped persons who replaced her and/or were retained after her termination." (Plaintiff's 10/26/99 Status Memorandum at 1-2). In November of 1997, Plaintiff took a medical leave of absence. She remained on leave of absence until December 28, 1998, at which time her employment with Defendant was terminated due to the exhaustion of all available leaves of absence under the Hospital's policies. (Aff. of Ruth Swan ¶ 9).
While on leave, Plaintiff had applied for short term disability through CIGNA. Her claim was denied in February 1998 (Exh. Attached to Doc. No. 26). Plaintiff testified that she recieved a letter in December of 1998 notifying her that all of her leave had expired (Pltf. Depo. at 191).
Plaintiff maintains that she was terminated not because her medical leave time had lapsed, but because she was black, older, and handicapped. She claims that she was subjected to harassment and a hostile work environment which caused her debilitating and disabling emotional injury (Doc. No. 33 at 8). Plaintiff states that she suffers from chronic hypertension.
The Defendants maintain that Plaintiff was not terminated from her employment with Children's Hospital, but rather was removed from the payroll after she exhausted all available medical leave of absence under the Hospital's policies and the Family Medical Leave Act (FMLA). Defendants further submit that Plaintiff's claims of discriminatory treatment during her employment are unfounded and set forth evidence that establishes other reasons for Plaintiff's problems at work.
Defendants maintain that the 1996 changes in department management resulted in Ms. Gloyd's discovering deficiencies in Plaintiff's performance that were the subject of extensive discussions with Plaintiff throughout the remainder of her employment. (Aff. of Nancy Gloyd ¶ 4). Ms. Gloyd explains that "[p]rior to June 1996, Plaintiff was supervised by Darlene Horn. Ms. Horn's management style was very casual, and she permitted employees to determine their own priorities and work places. Plaintiff benefitted from that management style and in fact took liberal advantage of the opportunities she had to engage in non-work activities. For example, Plaintiff took extensive breaks and often would not commence working until after having breakfast at her work station. This lax working environment was tolerated until Ms. Horn's departure in 1996." (Aff. of Nancy Gloyd ¶ 5). According to Ms. Gloyd, Ms. Thomas' work performance began experiencing problems in September 1996. (Id. ¶ 6). Ms. Thomas "would often leave her work area and the Department for extended periods of time without advising anyone of her departure. In addition, Plaintiff was unwilling to share information about her job duties." (Id.).
In her affidavit, Ms. Gloyd states that she also discovered that Ms. Thomas had "accumulated a backlog of work dating back more than one year." (Id.). As the new Department Coordinator, Ms. Gloyd attempted to learn from Plaintiff what her job entailed in order to address the backlog situation, but was met with "stark resistance" and an "absolute unwillingness to cooperate" or share information about her job duties." (Id. at ¶ 7). Ms. Gloyd attests that Plaintiff reacted negatively to questions about her work, was not receptive, but instead was hostile, to any constructive criticism or suggestions from Ms. Gloyd. (Id.) When Ms. Gloyd offered suggestions to Plaintiff about her work, instead of discussing the matters with Ms. Gloyd, Plaintiff complained to Human Resources about being treated "unfairly" by Ms. Gloyd (Id.)
Ms. Gloyd further attests that due to the backlog of work accumulated by Plaintiff and the continued difficulties in communicating with Plaintiff in order to address the backlog situation, Ms. Gloyd decided to reassign a portion of those duties in order to get the work "caught up" (Id. at ¶ 8). "Plaintiff complained on numerous occasions about her overbearing workload, but yet when this reassignment occurred, Plaintiff still objected and claimed that she was being 'singled out.'" (Id.) Ms. Gloyd states that "Plaintiff was singled out only in the sense that improvement of her work performance was the focus of my attention; however, this attention was due solely to Plaintiff's poor performance and was in no way whatsoever motivated by her race." (Id.)
Defendant maintains that Plaintiff's performance problems continued throughout 1997. So, in June of 1997, a "Work Plan" was prepared for Plaintiff to address the deficiencies in Plaintiff's performance and establish expectations for her future performance (Pltf. Depo. at 116-118; Aff. of Nancy Gloyd at ¶ 9; see also Pltf. Depo. Ex. 15). This Work Plan was presented to Plaintiff in a meeting held on June 10, 1997 at which time Plaintiff was advised "that the Department had expectations of her behavior and work performance" (Id.) The next day, June 11, 1997, Plaintiff commenced a medical leave of absence until June 30, 1997 (Aff. of Nancy Gloyd at ¶ 10).
While Plaintiff was on leave, Ms. Gloyd states that she further investigated the backlog of Plaintiff's work (Aff. of Nancy Gloyd at ¶ 11). She discovered that when Plaintiff performed name changes in the computer, Plaintiff would spend time searching in the computer for related names and records. Ms. Gloyd states that this work was not required of Plaintiff and that doing so consumed large amounts of time, adding to Plaintiff's backlog (Id.). In addition, Ms. Gloyd also states that it was then that she found a missing hospital record on Plaintiff's desk, "about which memos had been sent around seeking its location." (Id.) Ms. Gloyd maintains that these instances of unacceptable performance could not be tolerated (Id.).
"Based on the backlog and poor performance by Plaintiff," Ms. Gloyd decided to do the name changes herself (Aff. of Nancy Gloyd at ¶ 12). Ms. Gloyd directed that the data processing list and name change slips (previously sent to Plaintiff) be received by Ms. Gloyd. (Id.). "Plaintiff viewed these documents as 'tools' she needed to perform the name changes, and perceived this reassignment as tarnishing her image and she was embarrassed and angry." (Id.).
On June 30, 1997, a meeting was held with Plaintiff, Ms. Gloyd, and Mr. Bob Anthony. Plaintiff's job performance was discussed and Plaintiff expressed her likes and dislikes of her duties. Ms. Gloyd states that the changes in Plaintiff's duties were met with resistance and dislike by Plaintiff (Id. ¶ 13). Plaintiff wanted responsibility of responding to correspondence and records requests and "became extremely embittered" when "she did not get her way." (Id.).
On July 1 and July 2, 1997, Plaintiff submitted two requests for Conflict Resolution in accordance with the Hospital's Conflict Resolution policy. (Aff. of Ruth Swan ¶ 5). Pursuant to the Hospital's policy, Plaintiff set in motion a procedure by which the conflict she identified would be reviewed at various levels of Hospital management in an effort to resolve the conflict. (Id.).
In an attempt to affect a conflict resolution, the Hospital made arrangements with an outside consultant, Mr. Charles Lee (an African-American). (Aff. of Nancy Gloyd ¶ 14). Mr. Lee met with Plaintiff on several occasions to discuss her allegations of harassment and unfair treatment. (Id.). Mr. Lee subsequently prepared a report/memo (dated September 23, 1997) to the Hospital wherein he briefly summarized his interactions with Plaintiff. In the memo, he states: "Mattie never indicated that there were racial implications. Instead, she indicated that she was being harassed by a supervisor who did not like her, and that she was being mistreated." (Exh. B to Aff. of Nancy Gloyd). Mr. Lee's memo concludes as follows:
When we had the meeting in your office, we agree that Mattie would be given the work she felt most qualified to do and had the most experience doing. We agreed that the trial period would allow her to become aware of the new work standards that would be applied but that the primary responsibilities and duties of the work would be hers to perform.
I must say, Sue, [Sue Reitz — Adminstration Dept.] that I found Mattie to be less willing to compromise and I found you and her management more willing to accommodate her work expectations. I hoped she would live up to her end of the bargain.
(Id.)
Plaintiff appealed her requests for Conflict Resolution to the Executive Vice President of the Hospital, John Stoner. Mr. Stoner's investigation was halted when Plaintiff filed a charge of discrimination with the Ohio Civil Rights Commission ("OCRC"), alleging "harassment" and "retaliation" based on her race. (Id. ¶ 6). On June 5, 1998, the OCRC issued a finding of no probable cause based upon its investiation of the charge of discrimination filed by Plaintiff. (Id. ¶ 7).
Defendant maintains that at no time during the Conflict Resolution process did the Hospital determine that Plaintiff's complaints or allegations were meritorious (Aff. of Ruth Swan ¶ 8).
In November 1997, Plaintiff commenced a medical leave of absence (Pltf. Depo. at 190-91; Aff. of Ruth Swan ¶ 9). She remained on leave of absence until December 1998, at which time her employment was terminated due to the exhaustion of all available leaves of absence under the Hospital's policies. During the time that Plaintiff was on leave of absence, her position was reclassified and upgraded by the Hospital to require a Medical Records Technician certification, which Plaintiff did not have (Aff. of Ruth Swan ¶ 10). Plaintiff's prior position, therefore, was effectively eliminated from the Department (Id.).
Plaintiff filed the instant lawsuit in the Court of Common Pleas of Summit County; Defendant removed the action to this Court on April 2, 1999. Defendant moved for summary judgment on all of Plaintiff's claims.
III. ANALYSIS
A. Discrimination claims
I. Age discrimination and disability discrimination
Defendants move for summary judgment on Plaintiff's claims of age and disability discrimination on the basis of Plaintiff's deposition testimony alone. It follows:
Q. You are claiming that you were discriminated against because of your race, correct?
A. Right.
Q. You are not claiming that you were discriminated against because of disability, correct?
Mr. Holland: Same objection.
A. Correct.
Q. You are not claiming disability?
A. No.
Q. And you are not claiming that you were discriminated against based on your age?
Mr. Holland: Same objection.
A. I'm not sure what the reasons are, so I cannot say that.
Q. Okay. Let's back up. You are suing the hospital because you believe that you were discriminated against?
A. Right.
Q. On what basis? How were you discriminated against?
A. Treated differently.
Q. Than who?
A. Pardon?
Q. Than who?
A. Than who?
Q. Yeah. Who was treated differently than you were?
A. Other employees in the department.
Q. And what was the basis for that different treatment in your opinion?
A. That I don't know. I don't know why it was.
Q. Why do you believe you were?
A. Treated differently?
Q. Yes.
A. Maybe because —
Q. You have to speak up.
A. Maybe because of my race and — I'm not sure.
Q. Any reasons other than your race that you believe you were treated differently?
A. I can't think of any right now.
Pltf. Depo. 13-14.
At a later time during her deposition, Plaintiff was again asked: "And you're not contending that you had a disability and that the hospital was treating you differently because of a disability, right?" Plaintiff answered: "No." (Pltf. Depo. at 93).
Given this testimony of Plaintiff, the Court agrees with Defendant's assertion. Certainly, Plaintiff should be able to articulate and support her own claims, or at least know what claims she is alleging. The Court can find no supported allegations of disparate treatment due to her age or any disability or handicap. Based on the admissions by Plaintiff, her allegations of age and handicap/disability discrimination asserted under Ohio Revised Code Chapter 4112 and the federal Rehabilitation Act of 1973, 29 U.S.C. § 701-94 et seq. (Counts I and VI) are hereby DISMISSED.
The Court notes that even without the Plaintiff's deposition testimony, she has not established a prima facie case of age discrimination. Claims of age discrimination are similarly analyzed within the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310-13 (1996). Under theMcDonnell Douglas framework, a plaintiff must first establish a prima facie case by showing that (1) she was a member of the protected class, (2) she was subjected to an adverse employment action, (3) she was qualified for the particular position, and (4) the successful applicant was a substantially younger person. See Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6th Cir. 1998).
If the plaintiff makes out a prima facie case, the burden then shifts to the defendant to produce evidence of a non-discriminatory reason for its action. McDonnell Douglas, 411 U.S. at 802-03 93 S.Ct. 1817. The burden then returns to the plaintiff to demonstrate that the defendant's proffered reason is pretextual. See Scott v. Goodyear Tire Rubber Co., 160 F.3d 1121, 1126 (6th Cir. 1998); McDonnell Douglas, 411 U.S. at 802-03.
While Plaintiff Mattie Thomas was nearly 50 years of age at the time of her termination and while she was subjected to an adverse employment action, Plaintiff presented no direct or circumstantial evidence that her termination was due to her age. The evidence is uncontroverted that Plaintiff's employment was terminated because she had exhausted all available leaves of absence under the Hospital's policies. In fact, other than her stating so, there is absolutely no evidence of any discriminatory actions taken because of Mattie Thomas' age.
Moreover, with regard to the third element, whether she was qualified for the particular position, the Defendant maintains that she was not, in fact, qualified for the position. The position had been reclassified and upgraded by the Hospital to require a Medical Records Technician certification, which Plaintiff did not have. Absent any proof to the contrary, Plaintiff fails to establish a claim for age discrimination as a matter of law and any such claims are hereby DISMISSED.
II. Race Discrimination
Defendants maintain that Plaintiff was not terminated based upon job performance, but because all available leaves of absence under the Hospital's policies had been exhausted by Plaintiff. And because Plaintiff does not allege that Defendants' applied the leave policy in a racially discriminatory fashion, nor does she allege any disparate treatment in her termination because of the expiration of her leave, Plaintiff's claims end here. However, in abundance of caution, the Court will nevertheless examine her claims further under the applicable law.
In order to establish a prima facie case of race discrimination, Plaintiff must satisfy the burden-shifting analysis established inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Under this procedure, the plaintiff must first establish a prima facie case, which creates a presumption of prohibited discrimination. Burdine, 450 U.S. at 254. If a prima facie case is demonstrated, the burden shifts to the defendant to rebut the presumption by producing evidence that the employment decision was made for legitimate, nondiscriminatory reasons.Id. The plaintiff then must show that the defendant's stated reason is merely pretextual, and that the defendant has actually acted for discriminatory reasons. Id.
In Kline v. Tennessee Valley Auth., 128 F.3d 337, 349 (6th Cir. 1997), the Sixth Circuit set out the requirements of a prima facie case tailoring the McDonnell/Burdine framework. In order to prove a prima facie case of discrimination, a plaintiff must show that she:
1) was a member of a protected group;
2) suffered an adverse employment decision;
3) was qualified for the position; and
4) was replaced by, or was not selected over, a person outside the protected class.Id. at 349.
Ohio has specifically adopted the McDonnell Douglas/Burdine procedure for analyzing its own state law discrimination claims. Spencer v. Hilti, Inc., 116 F.3d 1480 1997 WL 359094 (6th Cir. (Ohio). This same analysis applies to Plaintiff's § 1981 claim. Jackson v. RKO Bottlers, 743 F.2d 370, 375 (6th Cir. 1984).
Due to the vague nature of the Complaint allegations in this case, it is unclear what employment action or omission is being challenged as racially discriminatory. From her deposition testimony, Plaintiff appears to complain about the treatment she received in the Medical Records Department and alleges that she was "treated differently" and that the different treatment might be due to her race (Pltf. Depo. at 31-47). What is clear from her deposition, however, is that she was very dissatisfied with the Hospital's reassignment of the duties which she like to do (adoptions and name changes), and leaving her with the tasks that she liked to perform the least (correspondence). (Pltf. Depo. at 37-44).
Assuming arguendo that Plaintiff could establish a prima facie of race discrimination with respect to the alleged "harassment" during her employment, she cannot demonstrate that the Hospital's legitimate, non-discriminatory reasons for its actions were pretextual. "A prima facie case requires the employer to go forward with evidence of a nondiscriminatory intent." Godfredson v. Hess Clark, Inc., 996 F. Supp. 730, 734 (N.D. Ohio 1998), affd., 173 F.3d 365. Defendant explains that Plaintiff was "singled out" by the Hospital only in the sense that her performance was deemed to be inadequate (Aff. of Nancy Gloyd ¶ 8). Plaintiff's duties were reassigned and a work plan prepared for her as part of the continuing effort by the Hospital to make Plaintiff a productive and successful employee (Aff. of Nancy Gloyd ¶ 8-9). Plaintiff is unable to articulate any factual basis for establishing that she was subject to disparate treatment in the Medical Records Department. In fact, Plaintiff admitted that she does not know how others in the Department were treated:
In her deposition testimony, Plaintiff made the assertion that the Hospital "retaliated" against her by fabricating allegations of poor performance after she filed her complaint of discrimination with the Ohio Civil Rights Commission (Pltf. Depo. at 38). However, a review of the record evidence establishes that Plaintiff's contention is mistaken. Plaintiff was presented with the Work Plan addressing her performance problems in June of 1997. She did not file her OCRC charge until August, 1997 (Aff. of Nancy Gloyd ¶ 9; Aff. of Ruth Swan Exh. A). Thus, Plaintiff's theory of retaliation is without foundation. See Pruitt v. First American National Bank, 1999 U.S. App. LEXIS 17971, *4 (6th Cir. Jul. 23, 1999) ("'Plaintiff has not specified what action or actions she is claiming were retaliatory' (after all, she filed her EEOC complaint after the Bank fired her) . . . [Plaintiff] failed to 'make out any causal connection between the EEOC Complaint and [the Bank's treatment of her]'").
Q. Do you know whether Nancy [Gloyd] ever watched when other employees left or came back from a break or lunch period or anything like that?
A. I wasn't paying attention to what she was doing on other employees. I'm just concerned about myself.
* * *
Q. Did the other employees in the department tell the receptionist when they were going to use the rest room, "I'm going to the rest room, I'll be right back"?
A. I don't know. I didn't watch them to see what they were saying to the receptionist.
Q. Do you know whether other employees — Nancy followed them while they were taking their break or leaving the department to see where they were going?
A. That wasn't my concern. I wasn't watching that. The concern was for me, not for other employees.
(Pltf. Depo. at 32, 34, 35).
The same analysis applies to Plaintiff's termination. The Hospital has articulated a legitimate, non-discriminatory reason for her termination — that she exhausted her available leave of absence under the Hospital's policies. Courts have granted summary judgment under identical circumstances. Davidson v. Franciscan Health System of the Ohio Valley, Inc., 82 F. Supp. 768, (S.D. Ohio 2000) (granting summary judgment where plaintiff was terminated after exhausting employer's leave policy "as any other employee would have been") (citing Honegger v. Wickes Furniture Company, 1995 U.S. Dist. LEXIS 15620, *17, (E.D. Ill., Oct. 23, 1995) (summary judgment granted where "the court found that the defendant had established a legitimate non-discriminatory reason for terminating the plaintiff, in that 'defendant did not deviate from its established, written policy with regard to disability leave . . .")).
In order to rebut the Hospital's legitimate non-discriminatory reason for its treatment of Plaintiff, both during her employment and in the termination of her employment, Plaintiff must "do more than impugn the legitimacy of the defendant's proffered justification; [s]he must also establish a discriminatory animus." Palmer v. Health Care and Retirement, Inc., 1997 U.S. App. LEXIS 5816, *3 (6th Cir. Mar. 24, 1997) (citing Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 804 (6th Cir. 1994). "To prove that defendant's reasons are pretextual, the plaintiff must show that the reasons have no basis in fact, that the reasons did not in fact motivate the discharge, or, if they were factors in the defendant's decision, that they were jointly insufficient to motivate the discharge." Godfredson, 996 F. Supp. at 735.
Plaintiff's own admissions undermine her allegations of race discrimination. During her deposition, Plaintiff admitted that at no time during her tenure with the Hospital was any negative reference ever made regarding her race. While she was the only African-American in the front office of the Medical Records Department, Plaintiff was never referred to negatively because of her race:
Q. Did anybody at Children's Hospital ever make any negative reference to your race?
A. Not that I can recall.
(Pltf. Depo. at 73).
Plaintiff's theory of race discrimination is devoid of any substance. Courts repeatedly have held that speculation and conjecture regarding the alleged discriminatory nature of an employer's actions are woefully insufficient to save a claim from summary judgment. See Gant v. University of Michigan Hospital, 1999 U.S. App. LEXIS 29688, *6-7 (6th Cir. Jul. 23, 1999) (held district court properly granted summary judgment where plaintiff at best "put forth evidence that she was treated unfairly — in that she was criticized for shortcomings not noted in her co-workers — and that she performed some of her duties well", but "she did not prove pretext"; "[Plaintiff] showed that the Bank fired her for minor performance problems and for deficiencies partially shared by other employees. [Her] "allegations of 'nit-picking' do not prove that the Bank discriminated against her"); Dooley v. Henry Ford Hospital, 1997 U.S. App. LEXIS 13240, *3 (6th Cir. Jun. 4, 1997) (summary judgment affirmed where plaintiff "has simply failed to show that her race was a motivating factor for the Hospital's action or that the Hospital would not have discharged her "but for" its motive to discriminate against her on the basis of her race"); Chappel v. GTE Products Corp., 803 F.2d 261, 267 (6th Cir. 1986); Wrenn v. St. Charles Hospital, 786 F.2d 1167, 1168 (6th Cir. 1986).
See also Krause v. Young Men's Christian Association, 1998 Ohio App. LEXIS 5918 (Eighth App. Dist. Dec. 10, 1998) ("The appellant's speculations to the contrary are not sufficient to overcome a motion for summary judgment where the appellee has presented significant evidence of a legitimate, non-discriminatory business reason for its acitons"); Girts v. Bostwick-Braun Company, 1997 Ohio Misc. LEXIS 293 (Lucas County May 20, 1997), affd., 1998 Ohio App. LEXIS 419 (Lucas Cty. Feb. 6, 1998) ("Plaintiff's complaint, memo in opposition to summary judgment, affidavit, and deposition contain his personal speculation as to why certain people were hired or fired without any factual evidence to support these personal beliefs or to show that [defendant] . . . discriminates").
Plaintiff has admitted that no one at the Hospital ever made negative reference to her race, nor has she offered any evidence to establish that comparable non-minority employees were treated more favorably. Simply put, Plaintiff has failed to come close to establishing a viable claim of race discrimination under Ohio law or § 1981. The Sixth Circuit clearly has established that where a plaintiff fails to establish discriminatory intent or improper racial motivation in support of a § 1981 claim, summary judgment in favor of the employer is proper as a matter of law. Murray v. Thistledown Racing Club, Inc., 603 F. Supp. 479 (N.D. Ohio 1983), affirmed, 770 F.2d 63 (6th Cir. 1985).
The Court finds that Plaintiff is unable to establish a prima facie case of racial discrimination stemming from Defendant's treatment of her, nor in the termination of her employment. Moreover, Plaintiff has failed to raise any genuine issues of material fact. Accordingly, Plaintiff's claims of race discrimination, as well as her claim under § 1981, are hereby DISMISSED (Count 1 and Count V).
III. Tortious wrongful discipline and/or discharge in violation of Ohio's public policy
Ms. Thomas also claims that she was wrongfully disciplined and/or discharged in violation of Ohio's public policy. The evolving law of public policy torts in Ohio was recently clarified by the Ohio Supreme Court in Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134, 677 N.E.2d 308 (1997). Kulch sets forth the following four elements of the tort of wrongful discharge in violation of public policy under Ohio law:
1. That clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element);
2. That dismissing employees under circumstances like those involved in the plaintiff's dismissal would jeopardize the public policy (the jeopardy element);
3. The plaintiff's dismissal was motivated by conduct related to the public policy (the causation element); and
4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).Id. at 321 (internal citations and quotation marks omitted).
Even assuming that Plaintiff can satisfy the first three elements of this tort, she cannot satisfy the final element. As previously discussed, Plaintiff failed to raise a genuine issue of material fact regarding her claim that the Hospital's legitimate business justification for her dismissal — the exhaustion of all available leave — was pretextual. In addition, the success of Plaintiff's public policy claim is contingent upon her success in establishing a statutory violation. Godfredson v. Hess Clark, 173 F.3d 365, 375 (6th Cir. 1999).
Accordingly, the Court GRANTS Defendant's motion for summary judgment on Plaintiff's claim of wrongful discharge in violation of Ohio's public policy (Count II).
IV. CONCLUSION
Having found that Plaintiff Mattie Thomas has failed to present a factual basis, record citation, or any relevant evidence to support her claims, Defendant's Motion for Summary Judgment is GRANTED in its entirety. Plaintiff's action is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
JUDGMENT ENTRY
For the reasons stated in the Memorandum of Opinion and Order filed contemporaneously with this Judgment Entry, and pursuant to Federal Rule of Civil Procedure 58, it is hereby ORDERED, ADJUDGED AND DECREED that the above-captioned case is hereby terminated and dismissed with prejudice.
IT IS SO ORDERED.