Opinion
Case No. C-3-97-188.
July 9, 1999.
Dwight A. Washington, Attorney for Plaintiff.
Marianne K. Mitcell, Joyce B. Link, Attorney for Defendant.
This litigation stems from Plaintiff Carolyn E. Wright's discharge from employment as Executive Director of Human Resources and Organizational Development at Central State University. Following her February 29, 1996, termination, Wright filed a Complaint (Doc. #1) against Defendant Central State University Office of the President and Defendant Central State University Board of Trustees, alleging that her termination constituted gender discrimination in violation of state and federal law. Wright also alleged that her loss of employment constituted a wrongful discharge and a breach of her written employment contract. In a March 26, 1998, Decision and Entry, the Court dismissed all but one of Wright's claims pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. #14). Wright's sole remaining claim alleges that her termination constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Pending before the Court is the Defendants' Motion for Summary Judgment directed toward that Title VII claim (Doc. #31).
For purposes of ruling on the Defendants' Motion for Summary Judgment, the Court will construe the facts, and allreasonable inferences drawn therefrom, in a light most favorable to the Plaintiff, who is the non-moving party. In its substantive analysis, infra, the Court will recite additional pertinent facts, again construing those facts and all reasonable inferences most strongly in favor of the Plaintiff.
Carolyn Wright began working at Central State University as a research assistant in 1981. (Wright depo. at 31-32). She became the school's Director of Human Resources and Organizational Development in 1993. (Id. at 49-50). In March, 1995, Dr. Herman Smith was appointed as interim President of CSU. (Id. at 55). At the time of Smith's appointment, Wright reported to Dr. John Williams, who was Smith's Executive Assistant. (Id. at 49-50). Shortly thereafter, in May, 1995, Wright began reporting to E.J. Junior, who was the school's Vice President for Finance. (Id. at 50-51).
During the last quarter of 1995, CSU's financial condition became a public concern. The school was operating with a four-million dollar deficit, and it could not continue to meet its financial obligations. (Id. at 92). As a result, on January 6, 1996, the CSU Board of Trustees declared a financial emergency at the school. (Williams depo. at 31-32). Two weeks later, the Board adopted a "financial exigency plan," at the request of the Ohio State Board of Regents. (Id. at 90; Smith depo. at 4-5; Williams depo. at 28). Among other things, the plan recommended that eighty-two CSU employees, including the Plaintiff, be laid-off indefinitely. (Williams depo. at Plaintiff's Exh. #1).
As the interim President at CSU, Smith had delegated the responsibility for preparing the plan to Williams and Dr. Melvyn Johnson. (Smith depo. at 13). Although Smith reviewed the financial exigency plan upon its completion, he did not assist Williams and Johnson in determining which positions to eliminate, (Smith depo. at 6, 80), did not participate in the decision regarding which CSU employees should be laid-off, and did not cause the Plaintiff's name to be placed on the work force reduction list. (Id. at 6-8). Upon reviewing the financial exigency plan prepared by Williams and Johnson, Smith made no additions to, or deletions from, the proposed lay-off list. (Id. at 80). Of the eighty-two employees who were recommended for indefinite lay-offs, forty-four were females, and thirty-eight were males. (Williams depo. at Plaintiff's Exh. 1). In Wright's department, nineteen males and nineteen females were selected to be laid off as part of the work force reduction. (Id. at Defendants' Exh. G).
The CSU Board of Trustees adopted the proposed financial exigency plan at its January 19, 1996, meeting, and Wright received notice of her indefinite lay-off. (Williams depo. at 96-98). Although she was immediately relieved of her responsibilities, Wright continued to receive pay for thirty days. (Id.). At that time, Wright earned an annual salary of more than $70,000. (Wright depo. at 53). Woodrow Keels, who formerly had worked under Wright's supervision, became the acting Director of Human Resources upon her departure. (Smith depo. at 99-102). As acting Director, Keels retained his former salary of $43,000 until June, 1996, when his salary was reduced to $40,000 as part of a mandatory salary cut. (Keels depo. at 67, 76; Smith depo. at 63).
II. Summary Judgment Standard
The Court first will set forth the parties' relative burdens once a motion for summary judgment is made. Summary judgment must be entered "against 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).
Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial[,]" quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 [6th Cir. 1987]). The burden then shifts to the non-moving party who "must set forth specific facts showing that there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law under Fed.R.Civ.P. 50. Street v. J.C. Bradford Co., 886 F.2d 1472, 1478 (6th Cir. 1989).
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 "simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff"). Rather, Rule 56(e) "requires the non-moving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). Summary judgment shall be denied "[i]f there are . . . `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). Of course, 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 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2726.
In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated 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), cert. denied, 494 U.S. 1091 (1990); see also L.S. Heath Son, Inc. v. ATT Information Systems, Inc., 9 F.3d 561 (7th Cir. 1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment. . . ."), cert. denied, 506 U.S. 832 (1992). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, upon only those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
III. Analysis
In Count II of her Complaint, Wright alleges that her lay-off resulted from sexual discrimination in violation of Title VII. (Doc. #1 at ¶ 18-20). A plaintiff pursuing such a claim may prevail in one of two ways: by presenting either direct or indirect evidence to prove that her employer was motivated by a gender-based animus when it terminated her employment. Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir. 1992); Terbovitz v. Fiscal Court of Adair County, Kentucky, 825 F.2d 111, 114-115 (6th Cir. 1987), abrogated on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Absent direct evidence of discrimination, a plaintiff must proceed under the burden-shifting, indirect evidence approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under that familiar analytical framework, Wright first must establish a prima facie case of discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. If she establishes a prima facie case, the burden then shifts to the Defendants to articulate some legitimate, non-discriminatory reason for her termination. Burdine, 450 U.S. at 253 (quotingMcDonnell Douglas, 411 U.S. at 802); LaPointe v. UAW, Local 600, 8 F.3d 376, 379 (6th Cir. 1993) (quoting McDonnell Douglas, 411 U.S. at 802). If the Defendants satisfy this burden, Wright then must prove that the Defendants' proffered reason is a pretext for discrimination. Burdine, 450 U.S. at 253 (citing McDonnell Douglas, 411 U.S. at 804); LaPointe, 8 F.3d at 379.
Count II also alleges that the Defendants have violated 42 U.S.C. § 1981, 42 U.S.C. § 1983, and Ohio Rev. Code § 4112.01, et seq. As noted, supra, the Court previously sustained a Motion to Dismiss directed toward these claims and the other Counts in Wright's Complaint. (See March 26, 1998, Decision and Entry, Doc. #14).
In a typical gender discrimination case, a plaintiff establishes a prima facie case under McDonnell Douglas by showing: (1) that she was a member of a protected class; (2) that she was discharged by her employer; (3) that she was qualified for the position at issue; and (4) that she was replaced by a person outside of the protected class. Mitchell, 964 F.2d at 582. This familiar framework is modified, however, when a plaintiff has been discharged as part of a work force reduction. Barnes v. Gencorp, Inc., 896 F.2d 1457, 1465 (6th Cir. 1990). In such a case, a plaintiff can never establish the fourth prima facie element because she is not replaced. By merely demonstrating the existence of the first three elements, however, "a plaintiff has not presented any evidence indicating that the work force reductions are not the reasons for the discharge. . . ." Consequently, in addition to establishing the first three elements above, a plaintiff in a work force reduction situation must produce "additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons." Id., citing La Grant v. Gulf and Western Mfg. Co., 748 F.2d 1087, 1090 (6th Cir. 1984).
In the present case, Wright contends that she possesses both direct and indirect evidence of gender discrimination. As a threshold matter, then, the Court must review Wright's "direct" evidence to determine whether a McDonnell Douglas analysis is even necessary. The Sixth Circuit has recognized that the McDonnell Douglas formula does not apply "to cases in which the Title VII plaintiff presents credible, direct evidence of discriminatory animus." Terbovitz, 825 F.2d at 115. "Direct evidence and theMcDonnell Douglas formulation are simply different evidentiary paths by which to resolve the ultimate issue of defendant's discriminatory intent." Id.
In her Memorandum opposing summary judgment, Wright cites several pieces of "direct" evidence to support her gender discrimination allegation. First, she alleges that CSU interim President Herman Smith once told a joke "about men and women," and then asked why so many women were in charge. (Doc. #39 at 13).Second, she contends Smith touched and hugged females, and referred to them as "hon." (Id.). Third, she claims that a male once was appointed to serve as co-manager of the financial aid department, along with a female, whereas no female ever was appointed to serve as co-manager with a male CSU employee. (Id.).Fourth, she asserts that a male was appointed to serve as co-Vice President of Fiscal Affairs, along with a female. (Id.). Fifth, she contends that two female CSU employees received demotions. (Id.). Sixth, she alleges that Smith referred to a female employee as "that girl." (Id.). Seventh, she contends that Smith commented about Dayton City Commissioner Idotha Neal being a CSU employee, but never commented about male elected officials who were CSU employees. (Id.). Eighth, Wright claims that she and another female employee were "singled out" in a memorandum announcing their separation from CSU. (Id.). Ninth, she insists that "Smith's inappropriate behavior was well known and discussed around campus among the employees." (Id.).
Upon review, the Court concludes that none of the foregoing allegations constitute direct evidence that the Defendants acted out of gender-based animus when they terminated Wright's employment. In the context of employment discrimination, the Sixth Circuit has held that "direct evidence" is evidence which, if believed, "requires the conclusion that unlawful discrimination was at least a motivating factor." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1248 (6th Cir. 1995), citingTerbovitz, 825 F.2d at 115. When such direct evidence exists, the presence of intentional discrimination is "patent." Id. In the present case, however, the relevance of Wright's evidence, if any, is established only by inference. Wright's true argument is that the foregoing evidence constitutes circumstantial evidence from which a trier of fact could infer gender discrimination. Therefore, the Court will analyze the Plaintiff's Title VII claim under the McDonnell Douglas burden-shifting approach.
Having found McDonnell Douglas applicable to the present litigation, the Court must resolve a second preliminary issue. This issue concerns Wright's dispute about whether she was replaced during CSU's 1996 work force reduction. Although she does not deny that economic necessity prompted such a reduction in force ("RIF"), she insists that the Defendants re-filled her position after her termination. Given the differing final prima facie element in RIF and non-RIF cases, the Court must determine, as an initial matter, whether the instant case represents a true RIF situation, at least with respect to Wright's termination.
In her Memorandum opposing summary judgment, Wright asserts that another CSU employee, Woodrow Keels, replaced her as Human Resources Director. (Doc. #39 at 9). In particular, Wright notes that, following her termination, Keels assumed the title of acting Human Resources Director, albeit without a pay increase. (Id. at 9-11). She also alleges that Keels assumed many of her responsibilities. (Id. at 10). Wright admits, however, that Keels lacked her experience, and that some of her responsibilities were "removed from his control." (Id. at 11). Finally, Wright notes that Keels retained his position as Acting Human Resources Director until September, 1997, when he left CSU and the school hired a permanent Human Resources Director. (Id. at 10).
Based upon a review of relevant case law, the Court finds unpersuasive Wright's argument that she was replaced and, therefore, that her termination was not part of a bona fide RIF. In Barnes, 896 F.2d at 1465, the Sixth Circuit set forth the applicable standards for determining when a true work force reduction exists:
A work force reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge. However, a person is not replaced when another employee is assigned to perform the plaintiff's duties in addition to other duties, or when the work is redistributed among other existing employees already performing related work. A person is replaced only when another employee is hired or reassigned to perform the plaintiff's duties.Id. at 1465.
More recently, in Brocklehurst v. PPG Industries, Inc., 123 F.3d 890 (6th Cir. 1997), the court clarified one aspect ofBarnes. In particular, the court held that a higher-level employee is not "replaced" when, as part of a RIF process, a lower-level employee is reassigned or promoted to fill the displaced employee's vacant position. Id. at 895. In support of its ruling, the court explained:
It is undisputed that in September 1991, PPG instituted a cost-reduction program designed to increase profitability. PPG, as part of this program, terminated approximately 130 employees and eliminated various employment positions. However, PPG did not eliminate Brocklehurst's position, director of marketing for the Ford and Mazda accounts, because it was essential. PPG therefore promoted Johnson to director of marketing for the Ford account when Brocklehurst was discharged; Johnson's position at Chemfil was filled by another Chemfil employee, whose original position was then left unfilled. Thus, after Brocklehurst's discharge, two employees remained where originally there had been three. The RIF, and this type of reorganization, saved PPG nearly $7 million.
We do not believe that Barnes stands for the proposition that a high-level employee may not be found to have been discharged as part of an economically motivated RIF unless that employee's position is eliminated. Indeed, Barnes did not address that type of factual scenario. Brocklehurst's position, like many high-level corporate positions, is vital to PPG's existence; PPG could not eliminate the director of marketing for the Ford and Mazda accounts. Therefore, PPG had to promote another employee to fill the vacancy left by Brocklehurst's discharge. That promotion, however, does not mean that PPG did not discharge Brocklehurst as part of its overall RIF. It is undisputed that, as part of the overall reshuffling, Brocklehurst's discharge resulted in the elimination of one employment position and accomplished cost savings for PPG, the goal of any RIF.
To accept the district court's reading of Barnes is tantamount to saying that a business must restrict its work force reductions to employees who occupy non-essential positions. We do not believe that is the law of this circuit. We therefore find that PPG terminated Brocklehurst as part of its RIF.Id. at 895.
In light of Barnes and Brocklehurst, the Court finds no merit to Wright's contention that Keels "replaced" her upon her departure from CSU. In reaching this conclusion, the Court first notes the Sixth Circuit's pronouncement in Barnes that a person is not "replaced" when her work is redistributed to existing employees. Barnes, 896 F.2d at 1465. In the present case, Wright cites no evidence controverting the Defendants' assertion that her work load was divided among existing employees, both inside and outside of her department. To the contrary, Wright admits that Keels' lack of experience required some of her responsibilities to be "removed from his control." (Doc. #39 at 11). Furthermore, even assuming, purely arguendo, that CSU had promoted Keels, and that he had stepped directly into Wright's shoes, performing all of her former tasks, Brocklehurst would foreclose a finding that Keels "replaced" her. As in Brocklehurst, it is undisputed that Wright's discharge resulted in the elimination of one employment position within her department and saved CSU a considerable amount of money. Cf. Brocklehurst, 123 F.3d at 895.
At the time of her discharge, Wright's salary was more than $70,000. (Wright depo. at 53). Initially, Keels' salary as acting Director of Human Resources was $43,000, the same salary that he previously had received as Benefits Coordinator for Human Resources. (Keels depo. at 67, 76). CSU later reduced his salary to $40,000 as part of a mandatory pay cut. (Id. at 67).
For the foregoing reasons, Wright cannot demonstrate that she was "replaced" by someone outside of her protected class, which is the usual final element of a plaintiff's prima facie case underMcDonnell Douglas. As set forth, supra, given that CSU laid-off Wright as part of a RIF, the normal McDonnell Douglas framework must be modified. Barnes, 896 F.2d at 1465. In addition to establishing the first three elements of her prima facie case, Wright must present additional direct, circumstantial, or statistical evidence which tends to indicate that the Defendants singled her out for impermissible reasons. Id., citing La Grant, 748 F.2d at 1090.
Given this conclusion, the Court need not resolve the Defendants' additional argument that Keels did not replace Wright because he did not assume her full job title. The Defendants note that Keels became CSU's acting Director of Human Resources, whereas Wright had served as the Executive Director of Human Resources and Organizational Development. (Doc. #41 at 3). In light of the foregoing analysis, however, the Court need not labor over this distinction.
In her Memorandum opposing summary judgment, Wright asserts that she can establish the fourth element of her prima facie case by showing "that a comparable non-protected person was treated better." (Doc. #39 at 11). She contends that this element is satisfied if she produces some evidence that CSU treated her differently than male employees who engaged in the "same or similar conduct." (Id.). In the present case, however, CSU terminated Wright as part of a work force reduction, not because she engaged in any inappropriate conduct. In the present case, Wright must present additional direct, circumstantial, or statistical evidence tending to indicate that CSU singled her out for termination because of her gender. Barnes, 896 F.2d at 1465. "The mere termination of a competent employee when an employer is making cutbacks due to economic necessity is insufficient to establish a prima facie case of [gender] discrimination."LaGrant, 748 F.2d at 1090.
In any event, even under Wright's formulation, her evidence fails to suggest that the Defendants treated her less favorably than a comparable, non-protected CSU employee. Wright alleges that Smith became "outraged" when he suspected her of releasing information to the Xenia Daily Gazette. Nothing in the record suggests that Smith ever suspected a male employee of engaging in this conduct. Consequently, no "comparable" employee exists. Wright also stresses that Smith distributed a memorandum announcing that she and another female CSU employee had been relieved of their administrative duties. The same memorandum, however, also announced that a male employee had been relieved of his duties. Wright next alleges that Smith felt "abandoned" when she took sick leave. While the Court questions the relevance of this observation, it also notes Wright's failure to cite any evidence demonstrating Smith's feelings when male employees took sick leave. Finally, Wright alleges that Smith failed to involve her in his decision to appoint a female employee as the Financial Aid Director. Without respect to the questionable relevance of this allegation, the Court notes, once again, that Wright has failed to compare herself to any male employees, similarly situated or otherwise. In her Memorandum opposing summary judgment, Wright declares that "no similarly situated male employee was treated comparable to [her] in the examples shown above. . . ." (Doc. #39 at 12). Notably absent from Wright's Memorandum, however, is any evidence identifying the "similarly situated" males whom Smith treated differently. Without this evidence, Wright cannot demonstrate that Smith treated her differently because of her gender.
Here, the Defendants do not dispute Wright's ability to establish the first three elements of her prima facie case: (1) she is a female, and, therefore, qualifies as a member of a protected class under Title VII; (2) she was terminated by CSU (laid-off indefinitely); and (3) she was qualified for her position. The Defendants do dispute Wright's ability to satisfy the final element of her prima facie case. Specifically, the Defendants insist that Wright cannot produce any evidence that they selected her for termination, as part of the school's RIF, based upon her gender.
In response, Wright several pieces of evidence which she believes demonstrate that the Defendants terminated her because she was female. First, she contends that Smith wrongly blamed her for disclosing information that appeared in a Xenia Daily Gazette newspaper article. (Doc. #39 at 12). Second, Wright again claims that she and another employee were "singled out" in a memorandum announcing their separation from CSU. (Id.). Third, she notes that Smith felt "abandoned" once when she took approved sick leave. (Id.). Fourth, she asserts that Smith, "contrary to past practice," once failed to involve her in the decision to remove an employee from the Human Resources Department. (Id.).
After reviewing the foregoing evidence, the Court concludes that it is not reasonably indicative of gender bias in the decision to terminate Wright. The Plaintiff first asserts that Smith terminated her employment because he wrongly suspected her of releasing information to the media. Even if true, however, such motivation has nothing to do with Wright's gender, and it does not support a reasonable inference of sex discrimination. Wright's second argument also fails to establish a genuine issue of material fact. Contrary to her assertion, Smith did not "single out" two females in a memorandum to the CSU staff. Rather, Smith circulated a memorandum identifying three administrators whom the school had placed on leave: the Plaintiff, Marlene Johnson, and E.J. Junior. Notably, Junior was a male CSU administrator, and Smith circulated the memorandum to advise the campus about administrative-level changes mandated by the RIF. (Smith depo. at 52-53). Nothing about the memorandum supports a reasonable inference of gender discrimination. Likewise, Wright fails to explain how the fact that Smith once felt "abandoned" when she took sick leave supports a reasonable inference of gender discrimination. Even assuming, arguendo, that Smith became upset once when she took such leave, Wright does not attempt to identify how his anger demonstrates gender bias. Likewise, Wright's assertion that Smith once made an employment decision without consulting her does not support a reasonable inference of gender discrimination in her termination. No nexus between the two events is self-evident, and Wright fails to identify any such link in her Memorandum.
In support of her allegation that Smith once felt abandoned, Wright cites page 103 of Smith's deposition. Nothing on page 103, or the surrounding pages, supports such a factual allegation.
Additionally, none of Wright's aforementioned "direct" evidence supports a reasonable inference of gender discrimination. As noted, supra, the Plaintiff first asserts that Smith told a joke shortly after his arrival in March, 1995, and "asked why there w[ere] so many women in charge around here." (White depo. at 58). This isolated and ambiguous comment, made as part of a joke approximately eight months before Wright's termination, does not support a reasonable inference of gender discrimination in her selection for discharge. Indeed, the Sixth Circuit has deemed such comments "too abstract, in addition to being irrelevant and prejudicial to support a finding of [gender] discrimination." Phelps v. Yale Security, Inc., 986 F.2d 1020, 1025 (6th Cir. 1993) (finding a comment about an employee's fifty-fifth birthday being "a cause for concern" too ambiguous to support an inference of discrimination); Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989) (finding a comment about needing "younger blood" insufficient to support a finding of age discrimination). Furthermore, the Court notes the existence of unrefuted evidence that Smith did not select Wright's name for placement on CSU's lay-off list. (Smith depo. at 5-9). As a result, Smith's comment does not support a reasonable inference that CSU Executive Assistant John Williams placed Wright's name on the RIF list, eight months later, because of her gender.
In reaching this conclusion, the Court recognizes that it cannot "weigh" Wright's evidence or otherwise evaluate the credibility of that evidence. Although the Court cannot "weigh" the evidence, it may consider, however, whether any inference that the Plaintiff advances, based upon that evidence, is a reasonable one. Indeed, the Sixth Circuit has recognized that "[f]acts may be supported by inference, but the inferences must be reasonable ones. . . ."Bills v. Aseltine, 958 F.2d 697, 708 (6th Cir. 1992); see also Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) ("Although we draw all reasonable inferences in favor of the non-moving party . . . `the mere existence of a scintilla of evidence in support of plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.'"); Palhava deVarella-Cid v. Boston Five Cents Savings Bank, 787 F.2d 676 (1st Cir. 1986) ("Although a court may not weigh the evidence or make credibility determinations in granting summary judgment, the court may end a suit before trial if the court determines that, taking the facts and reasonable inferences therefrom in the light most favorable to the non-moving party, no reasonable juror could find for that party.") (Emphasis added). Accordingly, Wright may receive the benefit of only those inferences that a trier of fact reasonably could draw, with the evidence construed most strongly in her favor.
In her deposition testimony, Wright admitted not knowing who made the decision to place her name on the list of employees to be laid off. (Wright depo. at 171). Furthermore, in her Memorandum opposing summary judgment, she cites no evidence controverting the Defendant's contention that Smith did not make that decision. Wright did speculate, however, in her deposition that Smith might have wanted her name placed on the lay-off list because he disliked "independent thinkers." (Wright depo. at 173, 180-181). This assertion, if true, reasonably supports an inference of discrimination against "independent thinkers," but not an inference of discrimination based upon gender.
Wright also contends that Smith referred to CSU employee Marlene Johnson as "that girl." Wright fails to provide any contextual information about the remark, however. Even if Smith did make such a remark, his reference to Johnson as "that girl," while perhaps offensive, does not support a reasonable inference of gender discrimination with respect to the Plaintiff's termination. Such stray remarks are insufficient to establish a genuine issue of material fact. Phelps, 986 F.2d 1020; Gagne, 881 F.2d 309.
Wright next alleges that Smith hugged female CSU employees, touched them, and referred to them as "hon." (White depo. at 102-104, 170). This conduct demonstrates that Smith at times acted unprofessionally toward females at CSU, but it does not support areasonable inference of gender discrimination in the decision to terminate Wright. Significantly, as noted, supra, Smith delegated the responsibility for placing names on the school's RIF list to Williams. Although he saw Williams' list, Smith made no additions or deletions, and he did not select Wright's name for inclusion. (Smith depo. at 5-9; Williams depo. at 80). Consequently, Smith's comments and actions have little relevance to Williams' decision to include Wright in the work force reduction.
Wright also cites Smith's decision to appoint male/female co-managers or co-Vice Presidents as evidence of gender discrimination. Upon review, however, the Court cannot agree that Smith's appointment of two males to assist in management supports a reasonable inference of gender discrimination with respect to Wright's termination. Once again, the Court notes that Smith played no role in the composition of CSU's RIF list. Furthermore, the circumstances surrounding Smith's appointment of the male co-managers do not permit a reasonable inference of gender discrimination. The record reflects that Smith transferred Beverly White from her position as Associate Director of Human Resources to Director of Financial Aid in May, 1995. (White depo. at 32). At the time of her transfer, White was in "shock" because she did not "know anything about financial aid." (Id. at 33). Consequently, Smith named Robert Johnson as a co-director. (Id. at 40). He also brought in several outside consultants to help organize the school's financial aid office. (Id.).
The other purported co-management arrangement involved CSU employee Blanche Mayo. In her Memorandum, Wright asserts that Smith appointed an individual named Melvin Johnson to serve as co-Vice President with Mayo. (Doc. #39 at 13). In support, she cites page fourteen of Smith's deposition. Smith does not mention Mayo anywhere on that page or the surrounding pages. Mayo, however, has provided the Court with an affidavit in which she avers that Smith changed her job title from Vice President of Administrative Support Services to Associate Vice President of Academic Affairs in the spring of 1995. (Doc. #41 at Exh. 5, Mayo affidavit at ¶ 3). Her duties changed insignificantly, and her salary remained the same. (Id. at ¶ 4). Smith made the change because Mayo's former title was not representative of her responsibilities. (Smith depo. at 119). As part of the re-shuffling of job titles, Smith named Melvin Johnson as the Vice President for Academic Affairs because he possessed the qualifications for the job, whereas Mayo did not. (Smith depo. at 120). Mayo herself does not challenge Smith's decision, and Wright cites no evidence to suggest that Johnson was not better qualified for the Vice President's position. Given these undisputed facts, Wright has not demonstrated a reasonable inference of gender discrimination based upon Smith's 1995 alteration of Mayo's job title.
Wright next cites as evidence of gender discrimination Smith's demotion of Mayo and another CSU employee, Theresa Check. As noted above, however, Mayo's change in job title did not substantially impact her responsibilities, and it had no impact on her salary. (Mayo affidavit at ¶ 4). Mayo and Smith have provided a non-discriminatory explanation for Mayo's changed title, and Wright cites nothing to support a reasonable inference that a gender-based animus prompted the change. With respect to the demotion of Check, Wright cites page twenty-nine of Smith's deposition. Once again, however, neither page twenty-nine, nor the surrounding pages, contains any mention of Theresa Check. In her own deposition, Check explained the circumstances surrounding her demotion. Smith demoted Check from Director of Athletics/Head Women's Basketball Coach to Associate Director of Athletics/Head Women's Basketball Coach in 1995. (Check depo. at 63, 68). Smith made the decision because he wanted to hire a full-time Director of Athletics who could focus on fund-raising, whereas Check spent eighty to eighty-five percent of her time coaching. (Id. at 64, 68). Check understood that she lacked the time to do substantial fund-raising, and she is aware of no facts to suggest that Smith had made his decision based upon her gender. (Id. at 71, 127-128). Consequently, Check's demotion by Smith does not support areasonable inference that Williams selected Wright for termination, as part of CSU's work force reduction, based upon her gender.
Wright also cites as evidence of gender discrimination Smith's references to Dayton City Commissioner Idotha Neal being an elected city representative and an employee of CSU. Wright notes that Smith failed to make such comments about any male CSU employees. The argument fails to support a reasonable inference of discrimination for several reasons. First, as noted, supra, Williams placed Wright's name on the RIF list, not Smith. Second, Wright has not presented any evidence demonstrating that male CSU employees served as elected officials. Third, a review of the record reveals that Smith's comment was not directed toward Neal's gender, but toward the fact that she was drawing two salaries. (White depo. at 183-185). Quite simply, Smith's failure to mention any similarly situated male employee, even assuming,arguendo, that one existed, does little to support a reasonable inference that Williams selected Wright for termination based upon her gender.
Wright's counsel broached this subject during the deposition of Beverly White. Counsel asked whether White had any knowledge of CSU employee Willie Hudson serving as an elected member of the Xenia Board of Commissioners. (White depo. at 184). White responded, "I can't recall that." (Id.).
Wright next contends that Smith's "inappropriate behavior was well known and discussed around the campus among the employees." (Doc. #39 at 13). In support, she cites White's deposition testimony about Smith exhibiting "inappropriate behavior." (White depo. at 109-111). When questioned further about Smith's objectionable conduct, White could not identify any "specifics." She referred instead to "just some of the gestures and actions, comments, about women." (Id. at 110). This argument fails to create a reasonable inference of gender discrimination with respect to Wright's termination for several reasons. First, to the extent that Wright relies upon White's recollection of comments that she heard from others, her deposition testimony is inadmissible hearsay. Second, White's testimony is far too ambiguous to support any reasonable inference of discrimination by the Defendants against Wright. Third, the Court notes, once again, that Williams, not Smith, placed Wright's name of the RIF list. In short, no trier of fact reasonably could infer from White's testimony that Wright's gender played a role in Williams' decision to include her in CSU's work force reduction.
Finally, assuming, arguendo, that Wright could establish aprima facie case, the Court still would find CSU entitled to summary judgment. The school has proffered a legitimate, non-discriminatory reason for its decision to terminate Wright as part of its RIF. After conducting a review of every employee in CSU's various departments, Williams determined that Wright's position was "expendable," along with eighty-one other positions. (Williams depo. at 63). He made this determination based upon the financial savings to the school and the extent to which her dismissal would impact CSU's ability to perform its "core mission." (Id. at 78).
This explanation for Wright's selection rebuts the presumption of discrimination that would arise upon the Plaintiff's establishment of her prima facie case. Manzer, 29 F.3d at 1082. In order to avoid the entry of summary judgment against her, Wright must show that the Defendants' proffered reason is a pretext for discrimination. A plaintiff can show pretext by offering evidence "(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [the adverse employment action], or (3) that they were insufficient to motivate [the adverse employment action]." Id. at 1084.
In the present case, Wright appears to be proceeding under the second method. She does not suggest that the Defendants' proffered reason, a work force reduction and her relative "expendability," had no basis in fact. Likewise, Wright does not suggest that the work force reduction and her expendability constitute insufficient justifications for her selection. Rather, Wright attempts to show pretext by establishing that the Defendants' proffered reason did not actually motivate the employment decision. "In other words, the [P]laintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it `more likely than not' that the employer's explanation is a pretext, or coverup." Id. In order to make this type of rebuttal showing, the [P]laintiff may not rely simply upon [her] prima facie evidence but must, instead, introduce additional evidence of [gender] discrimination." Id.
Conversely, when a plaintiff attempts to establish pretext using one of the other two methods identified in Manzer, she is not required to introduce any additional evidence of discrimination. Under those two approaches, the existence of evidence justifying a disbelief of the defendant's proffered reason, combined with the elements of the plaintiff's prima facie case, will permit a jury to infer discrimination. In the present case, however, Wright appears to argue that her expendability and CSU's financial crisis did not actually motivate her discharge. In order to establish pretext under this approach, Wright must produce some additional evidence of gender discrimination in addition to the evidence supporting her prima facie case. Kline v. Tennessee Valley Authority, 128 F.3d 337, 346-347 (6th Cir. 1997).
In the present case, however, Wright's cites one encounter with Smith as evidence of pretext, and nothing about the incident is indicative of gender discrimination. Specifically, Wright alleges that Smith became "outraged" on January 16, 1996, upon discovering that the Xenia Daily Gazette had published salary information concerning twenty high-level CSU employees. (Doc. #39 at 14). Smith met with Wright's eventual replacement, Woodrow Keels, the following day and informed him that "there w[ere] going to be some changes made in the [H]uman [R]esources office and that [Wright] was being laid off." (Keels depo. at 62). Given the foregoing sequence of events, Wright posits that Smith selected her for termination because he erroneously blamed her for providing the salary information to the newspaper. (Id. at 15).
This argument fails to raise a triable issue of fact on the question of pretext. The fatal flaw in Wright's argument is that this purported basis for her selection has nothing to do with her gender. According to Wright, Smith selected her for termination in the work force reduction because he suspected her of providing inaccurate information to the media. Regardless of the accuracy of this suspicion, this basis for selection raises no inference, whatsoever, of sex discrimination. Consequently, it does not constitute any additional evidence of gender bias, and Wright has failed to demonstrate a genuine issue of material fact on the issue of pretext. Kline, 128 F.3d at 346.
As noted, supra, Wright does not appear to suggest that the Defendants' proffered non-discriminatory reason for CSU's employment action had no basis in fact. Nor does she suggest that the proffered reason was insufficient to motivate her discharge. Instead, Wright suggests that the Defendants' stated reason did not actually motivate her discharge. "In this situation, a plaintiff must introduce additional evidence of discrimination because the reasons offered by the defendant are not directly challenged and therefore do not bring about an inference of discrimination." Kline, 128 F.3d at 346.
IV. Plaintiff's Motion to Strike Affidavit (Doc. #43)
Also pending before the Court is the Plaintiff's Motion to Strike Affidavit of Blanche Mayo (Doc. #43). Wright contends that Mayo's affidavit is inadmissible for two reasons: First, the Defendants failed to designate Mayo as a lay witness during discovery. Second, the affidavit contradicts Mayo's deposition testimony, and it is irrelevant.
The record reflects that neither party has designated Mayo as a witness. In her Memorandum opposing summary judgment, however, Wright cites Smith's demotion of Mayo as evidence of gender discrimination. In response to that argument, the Defendants have attached to their Reply Memorandum a five-paragraph affidavit from Mayo, in which she states:
1. I was employed by Central State University when Dr. Herman Smith became the interim president.
2. To the best of my recollection, he became interim president in the Spring of 1995, sometime during the month of May.
3. Within 30 days or so of his appointment, he changed my title from vice president of administrative support services to associate vice president of academic affairs.
4. My duties changed insignificantly and my salary remained the same.
5. These changes had nothing to do with the university's declaration of financial exigency, as that did not occur until January 1996.
Contrary to the Plaintiff's assertion, the Defendants properly filed the affidavit because Wright raises the issue of Mayo's "demotion" in her Memorandum opposing summary judgment. Notably, S.D. Ohio Civ.R. 7.2(e) permits the Defendants' submission of Mayo's affidavit with their Reply Memorandum. Rule 7.2(e) states in relevant part that "[e]vidence used to support a reply memorandum shall be limited to that needed to rebut the positions argued in memoranda in opposition." In the present case, the Defendants have not used Mayo's affidavit for any other purpose. Furthermore, in Smith v. Burns Clinic Medical Center, P.C., 779 F.2d 1173 (6th Cir. 1985), the court approved a defendant's use of affidavits to respond to matters raised in the plaintiffs' memorandum opposing summary judgment, reasoning:
The plaintiffs vigorously challenge the district court's consideration of affidavits filed by the defendant as attachments to a reply brief in support of the defendant's renewed motion for summary judgment. . . . We find no abuse of discretion in the court's consideration of the affidavits. A district court may, for cause shown, consider affidavits filed after the motion. . . . In light of the defendant's need to address the plaintiffs' claims as articulated in the latter's reply brief in opposition to the defendant's motion for summary judgment, we cannot conclude the district court erred in considering the defendant's untimely affidavits. The plaintiffs show neither how they were prevented from filing opposing affidavits under Federal Rule of Civil Procedure 56(c), nor why they did not request additional time to file opposing affidavits despite three weeks between the time the defendant filed its reply brief and the date of trial.Id. at 1175 n. 6; see also Baugh v. City of Milwaukee, 823 F. Supp. 1452 (E.D. Wisc. 1993), aff'd, 41 F.3d 1510 (7th Cir. 1994) ("It seems absurd to say that reply briefs are allowed but that a party is proscribed from backing up its arguments in reply with the necessary evidentiary material. Such a rule would allow the party opposing the motion to gain an unfair advantage by submitting issues and evidentiary support that were unforseen at the time the motion was first proffered.").
In the present case, the Defendants filed their Reply Memorandum with Mayo's affidavit on May 4, 1999 (Doc. #41). Consequently, the Plaintiff had more than four weeks, from that date until the Court orally announced its decision through its Courtroom Deputy, to file any additional affidavits that she deemed necessary, or to seek leave to do so.
Furthermore, the affidavit at issue does not contradict any prior deposition testimony provided by Mayo. Indeed, Wright cannot demonstrate that Mayo's affidavit contradicts her prior deposition testimony because, by Wright's own admission, Mayo has not been deposed. (Doc. #43 at 3). Finally, paragraphs one through four of the affidavit are not irrelevant. In her Memorandum opposing summary judgment, Wright raises the issue of Mayo's reassignment from the position of Vice President of Administrative Support Services to the position of Associate Vice President of Academic Affairs. Wright proposes that the change in job titles constituted a demotion, and that it demonstrates Smith's gender bias. In response, Mayo has averred (1) that she was employed at CSU when Smith became the interim President, (2) that Smith became the interim President in May, 1995, and (3) that he changed her job title shortly thereafter. (Mayo affidavit at ¶ 1-3). Because these averments are undisputed, they do little to advance the Defendants' position. Nevertheless, they are relevant, insofar as they establish that Smith did, in fact, change Mayo's job title while she and Smith worked at CSU. Furthermore, Mayo's averments that her duties did not change significantly, and that her salary remained the same, are relevant, insofar as they attempt to rebut an inference that Smith took an adverse employment action against her because of her gender.
The final paragraph in Mayo's affidavit states that her new job title "had nothing to do with the university's declaration of financial exigency, as that did not occur until January 1996." In its analysis of the Defendants' Motion for Summary Judgment,supra, the Court has neither cited, nor relied upon, this paragraph of Mayo's affidavit. In any event, the Court agrees that this paragraph is irrelevant in the context of Wright's Memorandum opposing summary judgment. Wright appears to argue that Mayo's "demotion" is indicative of Smith's bias against women generally. She does not argue that Mayo's demotion had anything whatsoever to do with CSU's subsequent financial exigency. Consequently, Mayo's final averment is irrelevant, even if it is true. Accordingly, the Court sustains the Plaintiff's Motion to Strike (Doc. #43), insofar as it is directed toward paragraph five of Mayo's affidavit. With respect to Mayo's other averments, the Motion to Strike is overruled.
V. Conclusion
Based upon the foregoing analysis, the Defendants' Motion for Summary Judgment (Doc. #31) is SUSTAINED. The Plaintiff's Motion to Strike (Doc. #43) is SUSTAINED IN PART and OVERRULED IN PART.
Judgment will be entered in favor of the Defendants and against the Plaintiff.
The captioned cause is ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
July 9, 1999