Opinion
Case No. 1:11cv839
03-27-2014
Chris Cremeens-Ashley, Plaintiff, v. State of Ohio/Department of Youth Services Ohio River Valley Juvenile Correctional Facility, et al., Defendants.
Judge Michael R. Barrett
OPINION & ORDER
This matter is before the Court upon Defendant Department of Youth Services' Motion for Summary Judgment. (Doc. 28). Plaintiff Chris Cremeens-Ashley has filed a Response (Doc. 33) and Defendants have filed a Reply (Doc. 37).
I. BACKGROUND
Plaintiff Cremeens-Ashley is a former employee of Defendant State of Ohio's Department of Youth Services ("DYS"). In July of 2006, DYS hired Cremeens-Ashley to work as a Nurse 1 at the Ohio River Valley Juvenile Correctional Facility ("ORV"). (Doc. 28-3, Steven Cleckley Aff. ¶ 6).
Defendant Joe Young was also employed by DYS at ORV as a Health Service Administrator. (Id., ¶ 4). Plaintiff worked under the supervision of Young. (Id., ¶ 6). Plaintiff was one of approximately ten nurses, both male and female, supervised by Young. (Id., ¶ 5).
Plaintiff explains that when she first began working for DYS, she worked on the night shift for four nights and then worked during the day shift on Fridays. (Doc. 24, Chris Cremeens-Ashley Dep. at 30). When Plaintiff was working on the night shift, Plaintiff's contact with Young was limited to about an hour per day. (Id. at 31). Plaintiff had little contact with Young when she worked the day shift on Fridays because Young typically took Fridays off. (Id. at 38). Plaintiff claims that during this period of time, Young would make inappropriate comments. For example, Young told Plaintiff that he wanted her to marry one of his sons so he could look at her on a daily basis, but that he would hate to lust after his daughter-in-law. (Id. at 72). However, Plaintiff explains that she was able "to ignore those remarks because of the limited time that I had to deal with him." (Doc. 33-1, Cremeens-Ashley Aff. ¶ 8). Young also gave Plaintiff gifts, including a heart-shaped sanitizer, lotion and flowers. (Cremeens-Ashley Dep. at 60-63).
Plaintiff also claims that during this time Young was in "sexual relationships" with two of her female co-workers. (Id. at 79). Plaintiff described the sexual nature of their relationships as "grabbing someone's breasts, grabbing someone's penis, grabbing someone's butt, kissing them." (Id.)
Finally, Plaintiff claims that on January 13, 2010, she was eating dinner in a restaurant in Columbus, Ohio. (Cremeens-Ashley Aff. ¶ 14). Plaintiff explains that Young showed up at the restaurant inebriated and made sexual comments to her. (Id.) For example, Young told Plaintiff that he loved "jeans day" at work because of "all the asses [he] can see." (Id.)
In February of 2010, Plaintiff began working as a Psych Nurse at the ORV. DYS created the Psych Nurse position as part of the resolution of a federal lawsuit brought against it. (Doc. 28-2, Jacqueline Carter Aff. ¶ 4). The Psych Nurse was to provide support to the psychiatrist at the facility, but the parameters of the position were a work in progress. (Id., ¶ 5). A court-appointed monitor, Barbara Peterson, R.N., made periodic visits and document reviews to ensure DYS was in compliance. (Doc. 28-4, Wanda Riffe Aff. ¶ 6).
The Psych Nurse position belonged in the Service Employees International Union ("SEIU") Local 1199 bargaining unit. (Carter Aff. ¶ 9). Following an interview, Plaintiff was hired into the Psych Nurse position as a lateral transfer, with no change in pay. (Carter Aff. ¶ 9). The position began with a 180-day probationary period. (Id.) The SEIU agreement provided that if Plaintiff did not demonstrate satisfactory performance during the 180-day period, ORV would be returned her to her the Nurse 1 position. (Cleckley Aff. ¶ 9).
Young remained Plaintiff's supervisor after she began working in the Psych Nurse position. (Carter Aff. ¶ 9). However, when she took the position, Plaintiff was not aware that Young would be her supervisor. (Cremeens-Ashley Dep. at 89). Plaintiff thought that she would report to the psychologist at ORV. (Id.) Plaintiff also thought that even though she began working on the day shift, she would not have any interaction with Young because she would be working in the psychology department, which was three buildings away from medical clinic where Young worked. (Id. at 89).
After beginning her work as a Psych Nurse, Plaintiff encountered a number of difficulties. While Plaintiff was supposed to be assisting the ORV psychiatrist, Dr. Martin Ryan, Dr. Ryan did not believe that the Psych Nurse was necessary. (Cremeens-Ashley Dep. at 98). Plaintiff also explains that Dr. Ryan was a contract doctor who was very close friends with Young and stayed with Young when he came into town to work at ORV. (Id. at 97). Young told Plaintiff that Dr. Ryan did not like her. (Id. at 98).
Plaintiff also had difficulty finding a work space and a working computer. Plaintiff explains that after she became a Psych Nurse, "the medical nurses did not like me in the clinic working on the computer, because they felt that I was hogging the medical work space and I was no longer medical. I was considered psychology. So they wanted me to have my own work space in psychology." (Id. at 140). For a period of time, Plaintiff worked out of the break room in the medical clinic. (Doc. 24-1, at 210). In July of 2010, Plaintiff was moved into an office, but at first there was no phone or computer in the office. (Doc. 24-1, at 222). Because she did not have a computer, Plaintiff completed her work by hand. (Cremeens-Ashley Aff. ¶ 25). Plaintiff gave these hand-written records to Young, but he told her that if they were not in the computer he considered them "not done." (Id.) Plaintiff was given her own computer on July 12, 2010. (Doc. 24-1, at 224).
Plaintiff's interactions with Young were also difficult, and became more frequent since Plaintiff was working during the day. Plaintiff explains that Young gave her the responsibility of filing, even though it was the responsibility of the medical secretary. (Cremeens-Ashley Dep. at 129). Plaintiff explains that on April 7, 2010, Young called Plaintiff into his office, took the accordion file folder full of papers she had filed, turned it upside down, and dropped it. (Id.)
Plaintiff also claims that on April 23, 2010, in an apparent attempt to apologize for his behavior, Young came up behind Plaintiff, put his arms around her and kissed her on her head. (Cremeens-Ashley Aff. ¶ 18). Young explained that he was jealous because Plaintiff was young, had a "hard body" and was married to a younger man. (Id.) Young also told Plaintiff that he had not had sex with his wife for years, and that his wife was "a big fat tank" but Plaintiff was "always looking nice." (Id.)
Plaintiff also recounts an incident on April 28, 2010, when Young came out to her car where Plaintiff was talking to another female employee. (Id., ¶ 19). Plaintiff claims that Young groped the employee's buttocks. (Id.; Doc. 24-1, at 185). Plaintiff explains that the employee told her that she was afraid to report Young because he was her supervisor. (Cremeens-Ashley Aff. ¶ 19).
Plaintiff claims that in late March of 2010, Young gave her the wrong dates for a mental health training seminar and as a result she missed part of the seminar. (Id., ¶ 19). When Plaintiff confronted Young, Plaintiff explains that Young replied, "Sorry, I f—ed up." (Id.)
On May 7, 2010, Plaintiff and Young had a loud discussion about recording weight information for one of the youth. (Doc. 24-1, at 310). Plaintiff filed an internal complaint which accused Young of making threatening remarks and ridiculing her. (Id. at 314). DYS investigated the allegations, and found that Young was unprofessional and ridiculed a subordinate. (Id. at 308). Young was issued a written reprimand. (Id.)
On May 28, 2010, Young came in to the office and had something white on his face. (Doc. 24-1, at 213). Plaintiff claims that when she told Young that he had something on his face, he said that it was "probably cum." (Cremeens-Ashley Aff. ¶ 16). Plaintiff told Young that those comments were inappropriate. (Id.)
Plaintiff also recounts a time when she was made a part of a conversation between Young and Dr. Ryan:
. . . we were standing there and Dr. Ryan says -- Joe said to Dr. Ryan, he said, tell Chris. And Dr. Ryan is, like, no. Joe said, you know who is the(Cremeens-Ashley Dep. at 122-23).
best to give a blow job? And I just looked at him. He said, a man, because he knows what feels good. I said, really, do you think that's appropriate conversation between the two . . . between a nurse supervisor and a doctor and you have a clinic full of juvenile inmates sitting there?
Plaintiff also claims that during this period of time Young walked by her while they were in the medical clinic and brushed up against her left breast. (Id. at 137). Young said, "oh, excuse me," and Plaintiff responded, "no problem." (Id.) Young then said, "is the other one jealous . . . does it want me to rub it?" (Id.)
Plaintiff has also identified a number of comments made by Young, but is unable to recall when the comments were made. On one occasion, Young asked Plaintiff if she was wearing panties. (Id. at 145). Another time, Young asked Plaintiff to wear her light pink scrubs, explaining to her that "you could see how cute [her] ass was in [her] light pink scrubs." (Id. at 146). Once when Plaintiff asked for batteries, Young asked whether Plaintiff wanted the batteries for the blood pressure cuff or for her vibrator. (Id. at 146-47). Another time, Young, who is about five feet, five inches tall, asked Plaintiff if she was interested in sleeping with him because he would like to see what it felt like to sleep with a six-foot tall woman. (Id. at 300). Young also once asked Plaintiff if she wanted to give him a "blow job." (Id. at 163). Finally, when Young and Plaintiff were walking together to a unit to assess a youth who had been involved in a sexual assault, Young talked about "blow jobs" and commented that "the juvenile detention center must be Heaven for some people." (Id. at 162-63). As part of this conversation, Young revealed to Plaintiff that "he rode the fence" and "was attracted to both sexes." (Id. at 163).
Plaintiff claims that when she complained about Young's conduct to his supervisors, his supervisors told her that they would take care of it. (Id. at 142). Plaintiff explains that when she followed up, "I was told on several occasions that when someone was disciplined, that would not be brought to my attention, they couldn't discuss someone else's discipline with me." (Id. at 156). Plaintiff also claims that she told her union representative about Young's conduct, but she does not know if a grievance was filed. (Id. at 146).
On July 9, 2010, Young completed a mid-probationary performance review for Plaintiff and noted that she was having problems with proper documentation. (Doc. 24-23). Steve Cleckley, who was ORV's Program Deputy and Young's supervisor, acknowledged that DYS released the Psych Nurse description during Plaintiff's probation period and recommended that Plaintiff's probation period be extended another sixty days so that she could have time to work under a performance improvement plan. (Cleckley Aff., ¶ 12). This recommendation was adopted by ORV Superintendent Marci Sutherland. (Id.)
On July 26, 2010, Plaintiff received her review, and noted that she strongly disagreed with the comments from her supervisor and also disagreed with the 60-day extension of her probation. (Doc. 24-1 at 336). Plaintiff later submitted a written response to the comments made on the review. (Doc. 25-1, at 4-18).
On July 27, 2010, Plaintiff submitted a written complaint of sexual discrimination and harassment to the EEO office. (Doc. 25-1, at 19). Rufus Thomas, EEO Manager, began an investigation of the complaint. (Doc. 25-1, at 20). During the investigation, Plaintiff submitted additional materials to Thomas, including her calendar with her work schedule, on which someone had drawn pictures of penises. (Cremeens-Ashley Dep. at 230).
In the meantime, according to DYS, Plaintiff did not improve her performance. (Riffe Aff. ¶ 1; Carter Aff. ¶ 11). Wanda Riffe, who succeeded Cleckley as Program Deputy, determined that Plaintiff would be returned to the Nurse 1 position. (Riffe Aff. ¶¶ 11-12). Riffe made this decision based on Plaintiff's charting, which did not include required information and did not meet clinical standards. (Id., ¶ 11). Riffe also considered the assessment of Peterson, the court monitor, and Young. (Id.)
On September 21, 2010, Riffe notified Plaintiff that she would not make probation and would be returned to her Nurse 1 position. (Riffe Aff. ¶ 12; Doc. 25-1, at 26). Plaintiff went out on medical leave the next day due to stress. (Riffe Aff. ¶ 12). Plaintiff claims that she was forced to take medical leave. (Cremeens-Ashley Aff. ¶ 4.)
In a letter dated September 24, 2011, Riffe provided Plaintiff with written notification that she would be moved back to her former position as part-time Nurse 1 "as a result of performance issues during your probationary period" and "problems with completion of appropriate documentation, unacceptable documentation, time management, and following job requirements." (Doc. 25-1, at 26).
During the course of investigating Plaintiff's EEO complaint, Thomas conducted interviews of Plaintiff, Young, and several of Plaintiff's co-workers. One nurse reported to Thomas that on one occasion, there as a battery-operated device on the counter in the medical clinic. (Doc. 28-5, at 4). The nurse explained that when it began vibrating, Young asked Plaintiff, "What does that sound like? Your snatch would like that." (Id.)
When interviewed, Young denied Plaintiff's accusations which involved touching or sexual comments directed towards her. (Id.) However, Young admitted that he told jokes and heard sexually explicit remarks from other staff in Plaintiff's presence. (Id.) Young stated that Plaintiff never told him that his behavior was unwelcome or offensive, and Plaintiff participated in the conversations on some occasions. (Id.)
Other employees reported to Thomas that they did not have any direct knowledge of Young sexually harassing Plaintiff. (Id. at 5). One co-worker reported that it was Plaintiff who used lewd and sexually inappropriate language and once told the clinic staff that she was not wearing any panties. (Id.)
In a letter to Plaintiff dated October 1, 2010, Thomas explained that there was a probable cause finding against Young on some of Plaintiff's allegations. (Doc. 25-1, at 21). Specifically, Thomas found: "Since there were no witnesses to verify the content of the conversations or the actual behavior on most of the accusations, the findings were based on verification by one co-worker of one incident and a pattern of inappropriate jokes acknowledged by Mr. Young." (Id.) Thomas noted that during the investigation, Plaintiff reported continuing harassment, including phallic symbols on her work schedule and an intimidating message on a bulletin board. (Id.) However, Thomas concluded that while these incidents support a hostile work environment, neither of the incidents could be attributed to Young because they occurred in areas accessible to all staff. (Id.) Thomas also found that ORV did not return Plaintiff to her previous position in retaliation for her EEO complaint. (Doc. 25-1, at 21). Thomas noted that the ORV removed Plaintiff from her probationary position based on performance materials outside of Young, including the federal court monitor who "had issues with your compatibility with the position." (Id.) As a result of these findings, DYS suspended Young for three days. (Riffe Aff. ¶ 13).
Plaintiff eventually separated her employment based on disability on January 16, 2011. (Doc. 28-5, Larry Blake Aff., ¶ 4).
In her Complaint, Plaintiff claims that while she was employed by DYS, she was "subjected to sexual harassment, sex discrimination and a hostile work environment based upon her sex and/or retaliation for her complaints of the same" in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e), et seq. (Doc. 1, ¶ 8). Plaintiff also brought state law claims for assault and battery and intentional infliction of emotional distress against Young in his individual capacity, but this Court dismissed those claims pursuant to Ohio Revised Code § 9.86. (Doc. 16.) Plaintiff appears to concede that she is not bringing claims against Young in his official capacity. (Doc. 8, at 2-3.) Therefore, there are no claims remaining against Young, and the only remaining claim is Plaintiff's claim under Title VII against DYS.
II. ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The moving party has the burden of showing an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden of production, the non-moving party cannot rest on his pleadings, but must present significant probative evidence in support of his complaint to defeat the motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
B. Title VII
Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII also makes it unlawful for an employer to retaliate against an employee who "has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a).
1. Gender discrimination
Plaintiff does not set forth any direct evidence of discrimination. Where no direct evidence of discrimination exists, a claim of employment discrimination is to be analyzed using the burden-shifting approach first announced in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and later modified by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of discrimination under Title VII, a plaintiff must show that "(1) he or she was a member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees." DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004).
If the plaintiff succeeds in establishing a prima facie case, an inference of discrimination arises, and the burden then shifts to the defendant to articulate some legitimate nondiscriminatory reason for its actions. Burdine, 450 U.S. at 254-56. If the defendant articulates a nondiscriminatory reason for its actions, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons put forth by the defendant were not its true reasons but were a mere pretext for discrimination. McDonnell Douglas, 411 U.S. at 802.
The plaintiff may prove pretext by showing either that: (1) the proffered reason had no basis in fact, (2) the proffered reason did not actually motivate the adverse action, or (3) the proffered reason was insufficient to motivate the adverse action. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994). "Throughout this burden-shifting approach, the plaintiff continues to bear the ultimate burden of proving, by a preponderance of the evidence, the intent to discriminate." Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).
Plaintiff has not identified a male who replaced her or a similarly-situated male who was treated differently than her. Without such a showing, Plaintiff cannot establish a prima facie case of discrimination. Therefore, the DYS is entitled to summary judgment on Plaintiff's Title VII claim for gender discrimination.
2. Quid pro quo sexual harassment
Title VII prohibits two types of sexual harassment: (1) quid pro quo harassment and (2) harassment which creates a "hostile or abusive work environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986). While Plaintiff is not entirely clear in her response to the motion for summary judgment which form of harassment she is claiming, it appears at the very least that she had plead both forms of harassment. Therefore, the Court will address both forms.
"To prevail on a quid pro quo claim of sexual harassment, a plaintiff must assert and prove (1) that the employee was a member of a protected class; (2) that the employee was subjected to unwelcomed sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that the employee's submission to the unwelcomed advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to a supervisor's sexual demands resulted in a tangible job detriment; and (5) the existence of respondeat superior liability." Highlander v. K.F. C. Nat'l Mgmt. Co., 805 F.2d 644, 648 (6th Cir. 1986). In her deposition, Plaintiff made several references to the fact that she refused to "play nicely" with Young:
[Young] did not want me in [the Psych Nurse] position. He made it clear he did not want me in that position. I mean, he said he wanted somebody in that position that would play nice. (Cremeens-Ashley Dep. at 120).
Because I did not, in finger quotes, play nicely, he would give me other things to do, such as filing the hundreds of papers, knowing I didn't have time to get all of it done. (Id. at 130).
Filing is not nursing. And because I didn't suit his needs, and as he would say, play nice, he would put stuff [in the filing basket] -- it's obvious retaliation. I don't know how anybody could not see it. (Id. at 129).
It relates to retaliation, because when Joe was getting heat from his superiors from the way that he was doing me, he, in turn, made my life so miserable. And none of it would have even happened had I played his game he wanted to play. But I went to school to get my degree, I don't have to sleep with anybody to get a paycheck. (Id. at 162).
But my side of the story is, because I had refused Joe's advances, because I had refused to play touchy feely with him, like several other staff had, I mean, he said it numerous times, if I didn't want to play nice, with his air quotations, I wouldn't play at all. (Id. at 197).
Focusing on the fourth element of the prima facie case, these statements do not reference a job benefit. Instead, Plaintiff appears to claim that she suffered a tangible job detriment as a result of refusing to "play nice." The Sixth Circuit uses the term "tangible job detriment" interchangeably with "materially adverse employment action." Bowman v. Shawnee State Univ., 220 F.3d 456, 462 n.5 (6th Cir. 2000).
A "materially adverse employment action" has been defined as a change in employment conditions which is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996)). Plaintiff claims that her rejection of Young's sexual advances resulted in her being assigned filing duties. However, such an assignment is not a materially adverse employment action. In contrast, Plaintiff's removal from her position of Psych Nurse was a materially adverse employment action. Nevertheless, Plaintiff has not shown that her refusal to submit to Young's sexual demands resulted in her removal from the position. According to Plaintiff, Young's sexual demands occurred consistently throughout her employment with DYS and she consistently refused them. Plaintiff has not shown that that submitting to Young's advances was a condition of remaining in the Psych Nurse position. Instead, Young's advances are more properly analyzed as part of Plaintiff's hostile work environment claim. Therefore, the DYS is entitled to summary judgment on Plaintiff's claim of quid pro quo harassment.
3. Hostile work environment sex harassment
Plaintiff also claims that Young's sexual harassment gave rise to a hostile work environment. To establish a prima facie case of a hostile work environment based on sex, a plaintiff must establish that "(1) she is a member of a protected class, (2) she was subjected to unwelcome sexual harassment, (3) the harassment was based on her sex, (4) the harassment created a hostile work environment, and that (5) the employer is vicariously liable." Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005) (citing Williams v. Gen. Motors Corp., 187 F.3d 553, 560-61 (6th Cir. 1999)).
DYS argues that Plaintiff has not established the fourth element. As the Supreme Court has explained, both an objective and subjective test must be met to establish a hostile work environment:
Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation.Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993). In order "[t]o determine whether a work environment is 'hostile' or 'abusive,' courts look at the totality of the circumstances." Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008) (quoting Harris, 510 U.S. at 23). In making this determination, a court is to consider factors such as "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (quoting Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th Cir. 2006). "[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher v. Boca Raton, 524 U.S. 775, 788 (1998).
While Plaintiff was working in the Nurse 1 position, she claims that Young told her that he wanted her to marry one of his sons except that he would hate to lust after his daughter-in-law. Also during this time period, Plaintiff claims that there was sexual behavior between Young and two of her female co-workers, including "grabbing [ ] breasts, grabbing [Young's penis], grabbing someone's butt, [and] kissing." However, Plaintiff states that because her contact with Young was limited during this time, she was able to ignore his conduct. Plaintiff claims that the regular and offensive sexual conduct did not begin until after she began working in the Psych Nurse position. (Cremeens-Ashley Aff. ¶ 9). Therefore, by her own admission, the hostile work environment did not begin until February of 2010.
During this period of time, Plaintiff claims the following harassment based on sex occurred:
• On April 23, 2010, Young put his arms around Plaintiff and kissed her on her head. Young commented that Plaintiff had a "hard body," revealed to Plaintiff that he had not had sex with his wife for years, and while his wife was "a big fat tank," Plaintiff was "always looking nice."
• On April 28, 2010, Young groped an employee's buttocks in Plaintiff's presence.
• On May 28, 2010, when Plaintiff told Young that he had something white on his face, Young replied that it was "probably cum."
• Plaintiff was made a part of a conversation between Young and Dr. Ryan in which Young stated that a man is the best to give a blow job because he knows what feels good.
• After Young accidentally brushed against Plaintiff's breast, he asked if the other one was jealous and offered to rub it.
• Young asked Plaintiff if she was wearing panties.
• Young asked Plaintiff to wear her light pink scrubs to be able to see how "cute [her] ass was.
• Young asked Plaintiff if she was requesting batteries for a blood pressure cuff or her vibrator.
• Young asked Plaintiff if she was interested in sleeping with him because he would like to see what it felt like to sleep with a six-foot tall woman.
• Young asked Plaintiff if she wanted to give him a blow job.
• Young was talking to Plaintiff about blow jobs and commented to Plaintiff that "the juvenile detention center must be Heaven for some
people." On this occasion Young also revealed to Plaintiff that "he rode the fence" and "was attracted to both sexes."
Plaintiff has identified other conduct which she considered to be harassment, but has not shown that this harassment was based on sex or motivated by discriminatory animus against women. See Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999) (explaining that "harassing behavior that is not sexually explicit but is directed at women and motivated by discriminatory animus against women satisfies the 'based on sex' requirement"); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) ("'The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.' ") (quoting Harris, 510 U.S. at 25 (Ginsburg, J., concurring)). For instance, Plaintiff accused Young of making threatening remarks and ridiculing her during a discussion about recording weight information for a youth. While Young was issued a written reprimand for being unprofessional and ridiculing, Plaintiff never claimed that Young's behavior was based on sex or motivated by discriminatory animus. Moreover, there is evidence in the record that Young treated others just as badly. In his affidavit, Cleckley states: "Mr. Young could be confrontational with the staff as a whole, sometimes using an elevated voice and terse words." (Cleckley Aff. ¶ 5).
DYS does not dispute that Plaintiff subjectively perceived her work environment as abusive. However, DYS argues that the incidents identified by Plaintiff are isolated, and were not severe or pervasive enough to create an objectively hostile work environment.
The Court finds that if proven true, the incidents of harassment identified by Plaintiff were not isolated. In the seven month period between February of 2010—when Plaintiff began the Psych Nurse position—and September 21, 2010—when Plaintiff left work due to stress—Plaintiff has identified ten comments made by Young which were sexual in nature. Two of these comments were accompanied by physical contact from Young. As the Sixth Circuit has noted, "harassment involving an 'element of physical invasion' is more severe than harassing comments alone." Hawkins, 517 F.3d at 334 (quoting Williams, 187 F.3d at 563). In addition, Plaintiff was present when Young groped the buttocks of another female employee. While Thomas could not substantiate all of Plaintiff's allegations in her EEO complaint, he found that Young admittedly engaged in a pattern of inappropriate jokes. Thomas also uncovered another incident involving Plaintiff which Plaintiff did not even include in her complaint. Specifically, a co-worker relayed information about an incident where Young commented to Plaintiff that her "snatch" would like the battery-operated device on the counter in the medical clinic. While these incidents of harassment are not necessarily severe, they were pervasive. See Hawkins, 517 F.3d at 333 (explaining that "severe or pervasive" is properly considered in the disjunctive). This Court finds that under the totality of the circumstances, there is a genuine issue of material fact as to whether there was a hostile work environment. Accord Williams, 187 F.3d at 563 ("even where individual instances of sexual harassment do not on their own create a hostile environment, the accumulated effect of such incidents may result in a Title VII violation.").
Therefore, DYS is not entitled to summary judgment on Plaintiff's claim of hostile work environment sexual harassment.
4. Retaliation
To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that (1) the plaintiff engaged in a protected activity under Title VII, (2) the plaintiff's protected activity was known to the defendant, (3) the defendant took adverse employment actions against the plaintiff, and (4) there was a causal connection between the adverse employment action and the protected activity. Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013). The Supreme Court has recently explained that with regards to the fourth element: "Title VII retaliation claims must be proved according to traditional principles of but-for causation," which "requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013).
Plaintiff claims retaliation as a result of her filing the EEO complaint on July 27, 2010. Plaintiff has identified the following adverse employment actions: (1) being removed from her Psych Nurse position; (2) not being given training or materials needed to perform her job; and (3) receiving a below-satisfactory performance evaluation after being commended by supervisors for her performance.
For an employment action to become actionable retaliation "[a] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, 'which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation omitted). DYS concedes that the removal of Plaintiff from the Psych Nurse position constitutes an actionable adverse employment action. Accord Spees v. James Marine, Inc., 617 F.3d 380, 391 (6th Cir. 2010) ("Reassignments and position transfers can qualify as adverse employment actions, particularly where they are accompanied by salary or work hour changes.").
However, DYS argues that the remaining actions identified by Plaintiff are not adverse employment actions which can support a claim for retaliation. This Court agrees. As a practical matter, Plaintiff's allegations with respect to lack of training or materials occurred before she filed her EEO complaint, and therefore could in no way have been retaliatory. Similarly, Plaintiff's mid-probationary performance review recommending that her probation period be extended was presented to Plaintiff the day before she filed her EEO complaint on July 27, 2010.
Next, DYS argues that Plaintiff is unable to establish a causal connection between the removal of Plaintiff from the Psych Nurse position and her filing of the EEO complaint.
The Sixth Circuit has explained that "[o]ne way by which a plaintiff can demonstrate a causal connection is to show close temporal proximity between the adverse employment actions and the protected activity." Taylor, 703 F.3d at 339. However, where a prima facie case is based on temporal proximity alone, the proximity of time must be a short period of time, "usually less than six months." Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000). Here, Plaintiff filed her EEO complaint on July 27, 2014 and she was notified that she would be removed from the Psych Nurse position less than two months later on September 21, 2010.
However, Plaintiff's causation element stands on shaky ground in light of the but-for standard announced by the Supreme Court in Nassar. The Supreme Court explained the heightened standard was necessary because "lessening the causation standard could also contribute to the filing of frivolous claims, which would siphon resources from efforts by employer, administrative agencies, and courts to combat workplace harassment." 133 S.Ct. at 2531-32. To illustrate, the Supreme Court described a scenario identical to Plaintiff's set of facts in this case:
Consider in this regard the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location. To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated employment action comes, the employee could allege that it is retaliation. If respondent [employee] were to prevail in his argument here, that claim could be established by a lessened causation standard, all in order to prevent the undesired change in employment circumstances. Even if the employer could escape judgment after trial, the lessened causation standard would make it far more difficult to dismiss dubious claims at the summary judgment stage. It would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.Id. at 2532 (citation omitted).
Nevertheless, even if the Court were to find that Plaintiff has established a prima facie case of retaliation based on her filing of the EEO complaint, DYS is still entitled to summary judgment on this claim.
Absent direct evidence of retaliation, claims of retaliation under Title VII are analyzed under the same McDonnell Douglas/Burdine evidentiary framework that is used to assess claims of discrimination. Imwalle v. Reliance Med. Products, Inc., 515 F.3d 531, 544 (6th Cir. 2008). Here, DYS has set forth a legitimate, nondiscriminatory reason for the decision to remove Plaintiff from the Psych Nurse position and return her to the Nurse 1 position. As Riffe explained in her September 24, 2011 letter informing Plaintiff that she would be moved back to her former position, Plaintiff had performance issues during her probationary period and had "problems with completion of appropriate documentation, unacceptable documentation, time management, and following job requirements." Plaintiff responds that this reason is pretext because the expectations for the Psych Nurse position varied depending on the supervisor. Plaintiff also argues that she was not given training, supplies, equipment or space to perform her job.
However, the primary deficiency identified by Riffe was independent of the expectations for the position or whether or not Plaintiff access to things like a computer. According to Riffe, the charting and documentation completed by Plaintiff: "did not include the information required for the SOAP protocol in her documentation and her recordings were not in line with any other clinical standards." (Riffe Aff. ¶ 9). The medical records for the youth were particularly important for DYS given the federal lawsuit brought against it. In fact, the court-appointed monitor also assessed the clinical content of Plaintiff's records and did not have a favorable opinion of her work. (Id., ¶ 11). Moreover, these deficiencies in charting were identified in Plaintiff's July 9, 2010 mid-probationary performance review (Doc. 24-23), which was completed before she filed her EEO complaint. Therefore, the Court concludes that Plaintiff has not carried her burden in demonstrating that the legitimate reason offered by DYS is pretext for retaliation. Accordingly, DYS is entitled to summary judgment on Plaintiff's claim of retaliation.
The SOAP ("Subjective Objective Assessment Plan") protocol "includes recording subjective data (what you are told by the patient), objective data (what the medical professional observes), assessment (the diagnosis) and plan (what the medical professional did or plans to do). (Riffe Aff. ¶ 2).
5. Retaliatory hostile work environment
While it is not entirely clear, Plaintiff has made some allegations which make it appear as if she is claiming a hostile work environment in retaliation for the filing of her EEO complaint.
The Sixth Circuit has explained that to prevail on a Title VII claim of retaliatory hostile work environment a plaintiff must show that "(1) [he or] she engaged in activity protected under Title VII; (2) the defendant was aware that the plaintiff engaged in the protected activity; (3) the plaintiff suffered 'severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the . . . harassment.'" Cleveland v. S. Disposal Waste Connections, 491 F. App'x 698, 707 (6th Cir. 2012) (quoting Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 792 (6th Cir. 2000).
As detailed above, Plaintiff claimed that Young engaged in non-sexual harassing behavior before the filing of her EEO complaint on July 27, 2010. Because it preceded the filing of the EEO complaint, Plaintiff cannot establish a causal connection between her protected activity and that harassment.
As to harassment after the filing of the EEO complaint, Plaintiff has identified the following retaliatory harassment by a supervisor: (1) as soon as Young learned that Plaintiff had filed a complaint, Young made comments such as, "Don't say that in front of Chris or she may file a grievance on you" (Doc. 28-1, at 7); Young falsely accused Plaintiff of trying to run him over with her car (Doc. 25-1, at 35); Riffe accused Plaintiff of stalking her (Id.); Riffe read Plaintiff the anti-violence policy at the meeting where Riffe told Plaintff that she would be returned to the Nurse 1 position (Id. at 36); and DYS immediately cut off her access to the DYS internet when she went on disability leave (Id.). While there is nothing in the record which reveals who committed these acts. Plaintiff also points to the phallic symbols drawn on her calendar, a message written on the dry-erase board in the medical clinic ("Those who live in glass houses shouldn't throw stones"), and an attempt to set her up for failing to report a sleeping nurse. (Doc. 28-5, at 5).
In determining whether this conduct is severe or pervasive enough to constitute a hostile work environment, this Court must consider the totality of the circumstances, including "the frequency of the . . . conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. "'[S]imple teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment.'" Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citations omitted).
Given the limited period of time between when Plaintiff filed her EEO complaint and when she went on disability leave, the retaliatory harassment was frequent during those two months. There is also no dispute that the work environment was subjectively hostile, as Plaintiff felt that she was forced to take disability leave due to the stress caused by work. The Court notes that the retaliatory harassment identified by Plaintiff was more than mere offensive utterances. Both Young and Riffe leveled serious accusations against Plaintiff. Therefore, the Court concludes that there is a genuine issue of material fact as to whether the retaliatory harassment objectively created a hostile work environment.
In regards to a causal connection, Plaintiff can show temporal proximity, but has also claimed that Young warned other employees to watch what they say because Plaintiff "may file a grievance on you." Accordingly, DYS is not entitled to summary judgment on Plaintiff's claim of retaliatory hostile work environment.
III. CONCLUSION
Based on the foregoing, Defendants' Motion for Summary Judgment (Doc. 28) is GRANTED in PART and DENIED in PART.
In addition, in accordance with this Court's previous ruling (Doc. 16) all claims against Defendant Joe Young are DISMISSED with PREJUDICE and Joe Young is dismissed as a party from this case.
IT IS SO ORDERED.
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Michael R. Barrett
United States District Judge