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holding a plaintiff was not a public servant under Ohio law because there was no evidence "that she was acting in any capacity on behalf of a state government entity"
Summary of this case from Martin v. Insight Communications Company, LPOpinion
Case No. 2:07-cv-453.
August 21, 2008
OPINION AND ORDER
This is an action filed by plaintiff Linda Graham against Mike Johanns, Secretary of the United States Department of Agriculture ("USDA"); Teresa Lasseter, Administrator of the USDA Farm Service Agency ("FSA"); Steve Connelly, Deputy Administrator for FSA Field Operations; Judith Herzog, an FSA Employment Relations Specialist; Dorothy Leslie, Chair of the Ohio FSA; Mary Garringer, Administrative Officer of the Ohio FSA; and Cheryl Hinton, County Executive Director of the Morrow County, Ohio, office of the FSA. Defendants Johanns and Lasseter are named in their official capacities, and the remaining defendants are named in their individual capacities.
Plaintiff was employed by the Morrow County FSA Committee ("the county committee") in the position of Minority Advisor from 1996 to 2006. Plaintiff alleges in her first amended complaint that defendant Hinton took disciplinary action against another employee, Eileen Levering, on the basis of her age, and later suspended her. Plaintiff further alleges that defendants Hinton and Garringer made threats of retaliation against the members of the county committee when they objected to the propriety of the suspension, thereby causing the county committee to approve the suspension. After an investigation was conducted by an EEO investigator, the county committee held several meetings and voted to rescind the suspension. Following a review hearing held on January 25, 2006, the Ohio FSA Committee ("the state committee") upheld the suspension, despite the county committee's objections.
Plaintiff further alleges that after this decision, defendant Leslie and the other Ohio FSA defendants retaliated against her by sending her a notice of removal. On April 6, 2006, defendant Leslie sent plaintiff a letter canceling her termination on the ground that her term had already expired, but notifying her that her conduct would be taken into consideration in the event that plaintiff sought an advisor position in the future.
In Count I, plaintiff asserts that her termination and the statements made in the letter rescinding her termination constituted age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). In Count II, plaintiff alleges that these acts constituted retaliation for her acts in opposing unlawful discrimination against Levering in violation of the ADEA. In Count III, plaintiff alleges that the acts of defendants Hinton, Garringer and Leslie constituted retaliation for plaintiff's exercise of her right to free speech under the United States Constitution and the Ohio Constitution, and that defendant Connelly is liable for those acts by reason of his duty to supervise the activities of those defendants. In Count IV, plaintiff claims that the alleged retaliation was in violation of the public policy of the State of Ohio. Count V is a claim against defendants Hinton, Leslie and Garringer for intentional infliction of emotional distress.
Count VI (mislabeled as another Count V) asserts a claim for intimidation of plaintiff as a public servant in violation of Ohio Rev. Code § 2921.03 and 18 U.S.C. § 1505. Plaintiff alleges that as a result of defendants' alleged violation of these statutory provisions, she was deprived of her liberty and property interests and denied due process of law as a result of the acts of defendants Hinton, Garringer, Herzog and Leslie, acting under color of state law, and that she is entitled to redress under 42 U.S.C. § 1983.
This matter is before the court on the defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and (6), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Since the parties have submitted evidentiary materials outside the pleadings, the court will consider defendants' motion as one for summary judgment.
I. Summary Judgment Standards
The procedure for granting summary judgment is found in Fed.R.Civ.P. 56(c), which provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, summary judgment is appropriate if the opposing party 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). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J. C. Bradford Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "`show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
II. Status of Parties as Federal Employees
A threshold issue presented in this case is whether plaintiff and the Ohio and county FSA defendants are federal employees.
The Secretary of Agriculture is required to develop programs for agricultural land stabilization and conservation. 16 U.S.C. § 590h(b)(5). These programs are implemented by the FSA (formerly known as the Agriculture Stabilization and Conservation Service ("ASCS")), an agency within the USDA. The administrative structure of the FSA is divided into regions of the country, with state and county offices. Each region is headed by a regional Deputy Administrator for State and County Operations. The state offices operate under the control of state committees. The state committee members are appointed by and are accountable to the Secretary of Agriculture. 16 U.S.C. § 590h(b)(5)(A); 7 C.F.R. § 7.4. The regulations also provide for county committees, which operate under the supervision of the state committee. 7 C.F.R. § 7.21(a). The county committees are comprised of farmer members elected by the farmers in the county. 7 C.F.R. §§ 7.5, 7.9, 7.15. The county committees are authorized to employ a County Executive Director. 16 U.S.C. § 590h(b)(5)(E); 7 C.F.R. § 7.21(b)(2). The county executive director has the responsibility of hiring the personnel of the county office. 7 C.F.R. § 7.25(b)(1).
An employee of a county FSA may be suspended by the county executive director, the county committee, the state committee, and the deputy administrator. 7 C.F.R. §§ 7.28(a), 7.29. A county executive director may be suspended by county committee, the state committee and the deputy administrator. 7 C.F.R. §§ 7.28(a), 7.29. A county committee member may be suspended by the state committee and by the deputy administrator. 7 C.F.R. §§ 7.28(a), 7.29.
Plaintiff was formerly employed as an advisor to the Morrow County Committee of the Ohio FSA. Plaintiff argues that she was not a federal employee, and that she was required to comply with the administrative time limits for filing a discrimination complaint under the ADEA which are applicable to non-federal employees, rather than those applicable to federal employees. She also argues that defendants Leslie and Garringer, as employees of the Ohio FSA, and defendant Hinton, as the county executive director of the Morrow County FSA, were state employees for purposes of liability under 42 U.S.C. § 1983.
In support of this argument, plaintiff has produced no evidence showing that she is not a federal employee, or that the above individual defendants are state employees. She points to no state law which renders the individual defendants state employees. Rather, she relies solely on cases which have held that employees of an FSA county office are not federal employees as defined in 5 U.S.C. § 2105 for purposes of seeking review of employment actions by the Merit Systems Protection Board. See Levering v. Merit Systems Protection Board, 259 Fed.App'x 321 (Fed. Cir. Dec. 18, 2007); Hedman v. Department of Agriculture, 915 F.2d 1552 (Fed. Cir. 1990).
The definition of "employee" under 5 U.S.C. § 2105(a)(1) includes persons appointed in the civil service by the president or by another federal employee. In Hedman, the plaintiff was a former county executive director appointed by the county committee comprised of local farmers who were not federal employees. The court held that since plaintiff was not appointed by a federal employee, he was not an employee for purposes of bringing a complaint before the Merit Systems Protection Board. Hedman, 915 F.2d at 1554-55. In Levering, the court held that plaintiff, formerly employed as a program technician with a county FSA, was not an employee under § 2105(a)(1), because she was employed by the county executive director, who was not an employee under § 2105(a)(1). Levering, 259 Fed.App'x. at 322.
Under these cases, defendant Hinton, as county executive director, would not qualify as an "employee" for purposes of § 2105(a)(1). However, since the Ohio state committee members are chosen by the Secretary of Agriculture, an appointee of the president, defendant Leslie, as Chair of the Ohio FSA Committee, and Garringer, the administrative officer of the Ohio FSA, would fall within the definition of "employee" found in § 2105(a)(1).See Miller v. U.S. Dept. of Agriculture Farm Services Agency, 966 F.Supp. 1087, 1088 (N.D.Ala. 1997) (members of state ASCS (now FSA) committee were federal officials). The defendants have also produced evidence that plaintiff was nominated by the Morrow County Committee, but was appointed by the State Committee, Ohio FSA, to the position of Morrow County Committee Advisor, under the authority of the Secretary of the USDA. Declaration of Mary S. Garringer, Administrative Officer of the Ohio FSA, ¶ 16. Thus, plaintiff is also an "employee" under § 2501(a)(1), and the cases she relies on do not support her claim that she and the state FSA employees are not federal employees.
In regard to defendant Hinton, the fact that an employee of a county FSA does not fall within the definition of "employee" in § 2105(a)(1) for purposes of seeking Merit System Review Board review of an adverse employment action does not mean that the employee is not a federal employee for other purposes. See Cannady v. United States, 155 F.Supp.2d 1379, 1382-84 (M.D.Ga. 2001) (program technician employed by county FSA was a federal employee under the Federal Tort Claims Act ("FTCA")); Wollman v. Gross, 484 F.Supp. 598, 601 (D.S.D. 1980) (noting that employees of the ASCS "have consistently been recognized as federal employees under the [FTCA]") (citing cases).
In Cannady, the court concluded that the fact that county ASCS employees are not "federal employees" under § 2501 does not preclude a finding that such employees are "federal employees" for other purposes. Cannady, 155 F.Supp.2d at 1382. For example, county FSA employees are federal employees for purposes of participation in federal civil service retirement programs and federal employee life and health insurance programs, and eligibility for pay adjustments, severance pay, and annual and sick leave. See Miller, 966 F.Supp. at 1091. The court in Cannady determined that the county program technician in that case was a federal employee for purposes of the FTCA based on the amount of control and supervision the government exercised over her day-to-day activities. Cannady, 155 F.Supp.2d at 1382-83. See also United States v. Orleans, 425 U.S. 807, 814 (1976) (critical element in determining when someone is a federal employee is the power of the federal government to control the detailed physical performance of his duties). The Cannady court noted that the technician's salary was paid by the federal government; that she was covered by the Federal Employees Retirement System and received life insurance benefits under the Federal Employees Group Life Insurance Program; that she participated in the Federal Thrift Savings Plan; and that she had health benefits under the Federal Employees Health Benefits Program. Cannady, 155 F.Supp.2d at 1381. The technician was also required to take an oath of office, vowing to carry out the laws and regulations of the USDA, she was issued a USDA identification card. Id. The purpose of her work was to carry out USDA programs, and her work practices were dictated by USDA handbooks. Id. at 1383.
In this case, the defendants have also presented evidence that plaintiff and the state and county FSA officials were federal employees. Plaintiff's salary as the Morrow County Committee Advisor was paid by the federal government and determined by the Secretary of the USDA. Garringer Decl., ¶ 15. Plaintiff took an oath of office agreeing to obey the laws regulations and procedures of the FSA and the USDA. Garringer Decl., ¶ 18. The Director of the Human Resources Division of the USDA was the "approving official" with respect to any personnel action taken with respect to plaintiff. Garringer Decl., ¶ 19. As the Morrow County Committee Advisor, plaintiff was responsible for administering USDA federal agricultural programs, and in doing so, she was required to comply with standards set forth in USDA handbooks. Garringer Decl., ¶¶ 20-21.
The record includes a copy of a "Notification of Personnel Action" extending plaintiff's appointment to February 28, 2006. This standard form, published by the U.S. Office of Personnel Management, indicates that the employing department or agency is the Department of Agriculture. The record also indicates that plaintiff filed an EEO complaint of discrimination against the FSA for review by the USDA pursuant to 29 C.F.R. § 1614.108. Receipt of the complaint was acknowledged by the USDA Office of Civil Rights in Washington, D.C. The decision of the Equal Employment Opportunity Commission ("EEOC") identifies "Mike Johanns, Secretary Dept. of Agriculture" as the respondent agency. Thus, the record indicates that plaintiff invoked the administrative process for discrimination complaints available to federal employees of the USDA.
The defendants have also presented evidence that defendant Leslie was appointed to the position of Chairperson of the Ohio FSA by the Secretary of the USDA, and that her salary is paid by the federal government. Declaration of John W. Chott, Jr., Assistant to the Deputy Administrator for Field Operations, ¶¶ 8-9. She took an oath of office swearing to follow the laws, regulations and procedures of the FSA and the USDA, and she is subject to removal by the Secretary. Chott Decl., ¶¶ 10-11. She was issued a USDA identification card. Chott Decl., ¶ 12.
The record includes evidence that defendant Garringer is a career federal civil servant, and that her salary as administrative officer of the Ohio FSA is paid by the federal government. Declaration of John A. Stevenson, State Executive Director for the Ohio FSA, ¶¶ 7-8. She is entitled to participate in the group health benefits, life insurance and Long-term care insurance programs available to federal employees, and she is covered by the Federal Employees Retirement System. Stevenson Decl., ¶ 9. She took an oath of office to carry out the laws regulations and procedures of the FSA and the USDA, and was issued a USDA identification card. Stevenson Decl., ¶¶ 12-13.
Defendants have also presented evidence indicating that defendant Hinton is a federal employee. Her salary is determined by the Secretary of the USDA and paid by the federal government. Garringer Decl., ¶ 9. She is entitled to participate in the group health benefits, life insurance and Long-term care insurance programs available to federal employees, and she is covered by the Federal Employees Retirement System. Garringer Decl., ¶ 10. She took an oath of office to carry out the laws regulations and procedures of the FSA and the USDA, and was issued a USDA identification card. Garringer Decl., ¶¶ 8, 11. Defendant Hinton was the county executive director at the time of the expiration of plaintiff's appointment. Garringer Decl., ¶ 13.
No genuine issue of fact has been shown to exist on the question of the status of plaintiff and the defendants as being federal employees for purposes of the arguments presented in defendants' motion for summary judgment.
III. ADEA Claims A. Individual Defendants
Plaintiff has asserted ADEA claims against the individual defendants. Those defendants correctly note that supervisory employees may not be held individually liable under the ADEA. See Wathen v. General Electric Co., 115 F.3d 400, 404 n. 6 (6th Cir. 1997). The defendants who have been sued in their individual capacities are entitled to summary judgment on plaintiff's ADEA claims.
B. Exhaustion of Administrative Remedies
Defendants argue that plaintiff's claims under the ADEA are barred due to her failure to exhaust her administrative remedies. The ADEA is applicable to federal governmental employees. 29 U.S.C. § 633a. A federal employee may pursue two avenues of relief under the ADEA. Stevens v. Dep't of Treasury, 500 U.S. 1, 5-6 (1991).
The employee may invoke the EEOC administrative process, and then file a civil action in federal district court. See 29 U.S.C. § 633a(b) and (c); Burzynski v. Cohen, 264 F.3d 611, 617 (6th Cir. 2001). To commence administrative proceedings regarding an employment action, the employee "must initiate contact with a Counselor within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1).
A federal employee may also present the merits of the claim to a federal court in the first instance. See 29 U.S.C. § 633a(d). That section provides:
When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred.
A final agency decision is not necessary before a complaint of age discrimination may be filed in district court. Langford v. U.S. Army Corps of Engineers, 839 F.2d 1192, 1194 (6th Cir. 1988). However, where the employee elects to bypass the administrative procedure, in whole or in part, or where the employee fails to timely exhaust the administrative remedies available, the employee must comply with the notice requirement of § 633a(d) or face dismissal. Ivey v. Rice, 759 F.Supp. 394, 402-403 (S.D.Ohio 1991), aff'd 961 F.2d 1577 (table), 1992 WL 102498 (6th Cir. 1992). See also Anderson v. Tennessee Valley Authority, 991 F.2d 794 (table), 1993 WL 113730 (6th Cir. April 13, 1993) (dismissing federal employee's ADEA claim where employee did not comply with timeliness requirements applicable to administrative complaint, and did not file a notice of intent to sue).
In the instant case, plaintiff contends that the letter dated February 10, 2006, concerning her proposed removal, and the letter dated April 6th which rescinded the notice of removal but noted that her actions would be considered if she is nominated for an advisor position in the future, violated the ADEA. Plaintiff initiated contact with the USDA counselor regarding her discrimination complaints by letter dated May 17, 2006, which was received by the USDA Office of Civil Rights on May 18, 2006. This occurred approximately ninety-four days after she received the February 10th notice of proposed removal. By order dated March 16, 2007, the EEOC administrative judge dismissed her claim based on the February 10th letter on the ground that the claim was raised beyond the forty-five-day time limit. The claim based on the April 6th letter was not found to be untimely, but was dismissed on other grounds. There is no evidence that plaintiff gave notice of her intent to sue to the EEOC so as to excuse her failure to timely exhaust her administrative remedies on her claim to the extent that it is based on the February 10th letter.
Plaintiff argues that the February 10th letter was not a final personnel action, and that the forty-five-day period for complaining about the February 10th letter should run from the April 6th letter. However, this is not a case where the employee received a notice of proposed termination and then later received a final notice of termination affirming the earlier proposed decision. The April letter rescinded plaintiff's removal rather than effectuating it. If, as plaintiff argues elsewhere, the February 10th letter has any significant status as a discrete discriminatory act, that status was diminished, not enhanced, by the April 6th letter. To the extent that plaintiff's ADEA claims are based on the February 10th letter, they are barred due to plaintiff's failure to timely exhaust her administrative remedies. However, the court, in the alternative, will also address defendants' other arguments regarding this letter.
In regard to the April 6th letter, plaintiff timely contacted the EEO counselor within forty-five days. Thus, to the extent that plaintiff's ADEA claims are based on the April 6th letter, they are not barred for failure to timely exhaust her administrative remedies.
C. ADEA Discrimination and Retaliation
In Counts I and II, plaintiff alleges that the February 10th letter proposing her removal and the April 6th letter stating that her actions would be considered in connection with any future application for a position with the USDA constituted age discrimination and retaliation in violation of the ADEA. A plaintiff may establish a claim of age discrimination through direct evidence. Direct evidence is evidence that is free of inferences that, if believed, requires a finding that "unlawful discrimination was at least a motivating factor in the employer's actions." Amini v. Oberlin College, 440 F.3d 350, 359 (6th Cir. 2006).
Age discrimination cases under the ADEA are analyzed under the same framework as employment discrimination cases under Title VII of the Civil Rights Act of 1974, 42 U.S.C. § 2000e et seq.Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003). In the absence of direct evidence, plaintiff may present a circumstantial case of discrimination through the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Briggs v. Potter, 463 F.3d 507, 514 (6th Cir. 2006). To establish a prima facie case of discrimination under this framework, plaintiff must show that: (1) she is a member of the protected class (at least forty years of age); (2) she was subjected to an adverse employment action; (3) she was qualified for the position; and (4) she was treated differently from similarly situated employees outside the protected class.Mitchell v. Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004). In a case of termination from employment, the plaintiff must establish: (1) that she is a member of a protected group; (2) that she was subject to an adverse employment decision (termination of her employment); (3) that she was qualified for the position; and (4) that she was replaced by a significantly younger person. Grosjean, 349 F.3d at 335. If plaintiff succeeds in meeting this prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. Id. If the employer meets this burden, then the plaintiff must produce sufficient evidence from which the jury may reasonably reject the employer's explanation.Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994).
In order to establish retaliation under the ADEA, 29 U.S.C. § 623(d), plaintiff may produce direct evidence of retaliation or proceed under the McDonnell Douglas framework. See Hasen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993). To establish a prima facie case of retaliation, plaintiff must show that: (1) she engaged in activity protected by the ADEA; (2) this protected activity was known to the employer; (3) thereafter, the employer took an employment action adverse to the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. Fox v. Eagle Distributing Co., Inc., 510 F.3d 587, 591 (6th Cir. 2007). If the plaintiff meets this initial burden, the burden of production then shifts to the employer to provide a legitimate, non-discriminatory reason for the decision. Balmer v. HCA, Inc., 423 F.3d 606, 614-15 (6th Cir. 2005). The ultimate burden of persuasion rests with plaintiff to show that the proffered reason was a pretext for its retaliatory actions. Id. In light of the similarity between the ADEA's anti-retaliation provisions and those found in Title VII, it is appropriate to look to cases construing Title VII as a source of authority for interpreting the ADEA's anti-retaliation provision.Fox, 510 F.3d at 591.
An "adverse employment action" is one which "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Such action usually "inflicts direct economic harm." Id. at 762. An employment action must amount to "a materially adverse change" in the terms or conditions of employment to be actionable. Mitchell, 389 F.3d at 182; Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996). A de minimus employment action is not materially adverse and is not actionable. White v. Burlington N. Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir. 2004). A "bruised ego" caused by trivial employment actions is not sufficient. Mitchell, 389 F.3d at 182.
Plaintiff contends that she has produced direct evidence of discrimination. She refers to her affidavit, in which she stated that she received reports from some program technicians that defendant Hinton "has made comments about not liking to work with `older women.'" Such hearsay reports may not be considered in summary judgment proceedings. See Sperle v. Michigan Dept. of Corrections, 297 F.3d 483, 495 (6th Cir. 2002) (party opposing a motion for summary judgment cannot use hearsay or other inadmissible evidence to create a genuine issue of fact).
In addition, direct evidence generally cannot be based on isolated and ambiguous remarks. Weigel v. Baptist Hospital of East Tennessee, 302 F.3d 367, 382 (6th Cir. 2002). Further, comments made by individuals who are not involved in the decision-making process regarding a plaintiff's employment do not constitute direct evidence of discrimination. Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir. 2003). See also Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir. 2002) (comments by manager lacking any involvement in the decision-making process do not constitute direct evidence); Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998) (noting that "statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself [cannot] suffice to satisfy the plaintiff's burden . . . of demonstrating animus.") (internal quotations and citation omitted)).
In this case, the letters sent to plaintiff were authored by defendant Leslie, as Chairperson of the Ohio FSA State Committee. The February 10th letter stated that the Ohio FSA State Committee was proposing to remove plaintiff from her position as advisor. Since plaintiff was appointed by the State Committee, Ohio FSA, to the position of Morrow County Committee Advisor, under the authority of the Secretary of the USDA, only the state committee and the deputy administrator had the authority to remove plaintiff from her position. See 7 C.F.R. §§ 7.28(a), 7.29. There is no evidence that defendant Hinton had any input as to the decision to send the letters, or that any of the age-based comments allegedly made by defendant Hinton were made in connection with that decision. The alleged comments of defendant Hinton do not constitute direct evidence of discrimination in this case.
Defendants argue that plaintiff has failed to produce evidence sufficient to show that she was subjected to an adverse job action, an essential element of her prima facie case of age discrimination and retaliation. Plaintiff argues that the letter of February 10, 2006, proposing her removal was an adverse job action. However, the proposed removal was rescinded in the letter of April 6, 2006, because plaintiff's appointment expired as a matter of course pursuant to the standard regulations applicable to her position on February 28, 2006. The Sixth Circuit has held that a letter merely proposing a suspension which was never implemented was insufficient to constitute an adverse employment action. McMillian v. Potter, 130 Fed.App'x 793, 797 (6th Cir. May 11, 2005) (no adverse action where the only repercussion plaintiff could identify as a result of the letter proposing his suspension was humiliation).
Plaintiff relies on Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53, 71-73 (2006), in which the court held that a 37-day suspension without pay was an adverse job action even though the plaintiff was later reinstated by the employer with back pay. However, in that case, the suspension was actually imposed, and the plaintiff was without a paycheck for the period of the suspension, a serious financial hardship. Here, the proposed action was never implemented, thus distinguishing plaintiff's case from Burlington Northern. See Mitchell, 389 F.3d at 182 (proposed pay reduction and reassignments which were never implemented not adverse employment actions under Burlington Northern). Plaintiff has failed to produce evidence sufficient to show that the February 10th letter constituted an adverse job action.
There is also no evidence to raise a genuine issue of material fact as to whether the letter of April 6, 2006, constituted an adverse job action. The plaintiff stated in her affidavit, Doc. No. 24-8, "I do not believe I was discriminated against based on my age as it relates to the letter rescinding the proposal to be removed." The April 6th letter states that "the Ohio FSA State Committee will have to consider her actions cited in our letter of February 10, 2006, should she be nominated for an advisor position." However, under Handbook 16-AO (Revision 3), paragraph 157A, FSA county committee advisors hold a temporary appointment for a 12-month period, not to exceed nine years. The EEOC order of dismissal noted that plaintiff completed her ninth 12-month term on February 28, 2006. Thus, plaintiff was not eligible for re-appointment to her former position as Morrow County Committee Advisor. Further, the April 6th letter did not state that plaintiff would be definitely be rejected or denied an advisor position if she applied in the future. There is also no evidence that plaintiff has been nominated for or sought another advisor position since receiving the April 6th letter, or that she has been denied an advisor position. Until such time as plaintiff applies for an advisor position and the application is denied by the state committee, plaintiff's retaliation claim is premature.
Since no genuine issue of material fact has been shown to exist in regard to the "adverse employment action" element of plaintiff's prima facie case, the motion for summary judgment on plaintiff's ADEA claims in Counts 1 and 2 is well taken.
IV. Retaliation for Exercise of Free Speech Claim A. Elements of Claim
Plaintiff alleges in Count III that when members of the Morrow County Committee objected to the suspension and proposed removal of Morrow County FSA employee Eileen Levering, on the basis of alleged age discrimination, defendants Hinton and Garringer made threats of retaliation against the members of the county committee. Plaintiff further alleges that after an investigation was conducted by an EEO investigator, the county committee, including plaintiff, held several meetings and voted to rescind the suspension. Plaintiff alleges that by sending the February 10th termination letter and the April 6th letter, defendants retaliated against her because of her exercise of her right of free speech, the right of freedom of assembly, and the right to petition government for redress of grievances under the Ohio and United States Constitution.
The elements of a claim for retaliation in violation of the First Amendment of the United States Constitution requires plaintiff to prove: (1) that she was engaged in a constitutionally protected activity; (2) that the defendants' adverse action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and (3) the adverse action was motivated at least in part as a response to the exercise of plaintiff's constitutional rights. Jenkins v. Rock Hill Local School District, 513 F.3d 580, 585-86 (6th Cir. 2008).
Defendants argue that plaintiff cannot satisfy the first element of this claim in light of Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 421. Defendants note that plaintiff has acknowledged that the duties of her position as minority advisor to the county committee included providing a workplace environment free from discrimination, identifying, reporting and opposing discrimination, and making recommendations to the state FSA committee on needed changes in programs and their administration. See Plaintiff's Memorandum Contra Defendants' Motion to Dismiss, pp. 8, 17. Thus, plaintiff's activities were not protected under the First Amendment.
In addition, plaintiff has not shown that she suffered an adverse action. The February 10th letter proposing her removal from her position was rescinded by the April 6th letter. While plaintiff characterizes the April 6th letter as indicating that any future application for a position would be denied, the letter does not so state. It indicates only that her conduct would be considered during the application process.
Plaintiff has failed to show that she could establish a prima facie case of First Amendment retaliation.
B. Constitutional Claims Against Federal Employees
Plaintiff asserts her First Amendment claim under 42 U.S.C. § 1983. To establish a claim under § 1983, plaintiff must prove that she was deprived of a right secured by the Constitution or laws of the United States and that the deprivation was caused by the defendant while acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). As previously stated, the evidence in the record shows that the defendants are federal employees, and no genuine issue of material fact has been raised in that regard. There is no evidence that the defendants were state employees, or that they were acting under color of state law in committing any of the acts alleged by plaintiff. Section 1983 does not apply to federal officers acting under color of federal law. Williams v. Bezy, 97 Fed.App'x 573, 574 (6th Cir. 2004). Therefore, plaintiff's First Amendment claim is in essence an action in constitutional tort under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
In Bush v. Lucas, 462 U.S. 367 (1983), the Supreme Court held that the administrative remedies available to federal employees precluded a Bivens action for First Amendment retaliation brought by the plaintiff federal employee. See also Moore v. Glickman, 113 F.3d 988, 990-95 (9th Cir. 1997) (holding that no Bivens action for retaliation was available to a county ASCS employee against individual federal officials in light of judicial review of termination provided under the Administrative Procedure Act);Miller, 966 F.Supp. at 1089-1092 (holding that ASCS county executive director could not bring a Bivens claim against members of state ASCS committee and other ASCS officials alleging infringement of due process and free speech rights).
The Eighth Circuit reached the opposite result in Krueger v. Lyng, 927 F.2d 1050 (8th Cir. 1991), holding that a former county executive director could maintain a Bivens action. However, this court agrees with the reasoning in Moore and Miller. In any event, the instant case is distinguishable because, as noted previously, plaintiff was appointed by the state committee, and therefore falls within the definition of "employee" contained in 5 U.S.C. § 2105.
In addition, the Sixth Circuit has noted that "[f]ederal employees must rely upon Title VII and other federal antidiscrimination statutes like the ADEA that apply to the federal government as the exclusive remedy for combating illegal job discrimination." Briggs v. Potter, 463 F.3d 507, 517 (6th Cir. 2006). See also Tapia-Tapia v. Potter, 322 F.3d 742, 745 (1st Cir. 2003) (the ADEA provides the exclusive federal remedy for age discrimination in employment). To the extent that plaintiff's First Amendment retaliation claim is based on alleged retaliation for her statements and other actions in response to the alleged age discrimination against Levering, that claim falls under the scope of the anti-retaliation provisions of the ADEA, which provide the exclusive remedy available in this case.
C. Claims under Ohio Constitution
Plaintiff also asserts a free speech retaliation claim directly under the Ohio Constitution. However, the Supreme Court of Ohio has not recognized the existence of a private cause of action for damages under the Ohio Constitution. See Provens v. Stark County Board of Mental Retardation Developmental Disabilities, 64 Ohio St.3d 252, 261, 594 N.E.2d 959 (1992) (no private constitutional remedy where Ohio Constitution itself did not provide for a civil damage remedy). See also PDU, Inc. v. City of Cleveland, No. 81944 (8th App. Dist. unreported), 2003 WL 21555157 (Ohio App. July 10, 2003) (due process clause of Ohio Constitution was not self-executing and did not create a private right of action). Therefore, plaintiff's claim under the Ohio Constitution fails.
V. Retaliation in Violation of Public Policy A. Elements of Claim
In Count IV, plaintiff asserts a claim under Ohio law of retaliation in violation of public policy. Ohio recognizes the tort claim of wrongful termination in contravention of public policy. See Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551 N.E.2d 981 (1990). In order to establish such a claim, an at-will employee must establish: (1) that a clear public policy existed and was manifested in a state or federal constitution, statute, or administrative regulation, or in the common law; (2) that dismissal under the attendant circumstances would jeopardize that public policy; (3) that the dismissal was motivated by conduct related to that public policy; and (4) that the employer lacked an overriding legitimate business justification for the dismissal. Mayo v. Kenwood Country Club, Inc., 134 Ohio App.3d 336, 341, 731 N.E.2d 190 (1999).
In this case, plaintiff was not terminated, since the letter notifying her of the proposed termination was rescinded. This court notes that the public policy tort is not confined to terminations. In Greeley, the Ohio Supreme Court stated that "[p]ublic policy warrants an exception to the employment-at-will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute." (Emphasis added). Id., 49 Ohio St.3d at syllabus para. one. However, even where termination does not occur, the common-law cause of action still requires proof of an adverse employment action. Risch v. Friendly's Ice Cream Corp., 136 Ohio App.3d 109, 114, 736 N.E.2d 30 (1999). See also Lookabaugh v. Spears, No. 2007 CA 16 (2nd App. Dist. unreported), 2008 WL 867730 at *3-6 (Ohio App. March 28, 2008) (looking to other case law interpreting "adverse job action" in deciding whether summary judgment was appropriate as to alleged constructive discharge underlying wrongful termination in violation of public policy claim).
In this case, the evidence is insufficient to present a genuine issue of material fact on the question of whether plaintiff suffered an adverse job action. As previously indicated, the February 10th letter merely proposed plaintiff's termination, and the letter was rescinded because plaintiff's term of employment ended by operation of neutral regulations. The February letter was insufficient to constitute an adverse job action. Plaintiff also relies on the April 6th letter, contending that the defendants retaliated by "`blacklisting' Plaintiff for future positions." First Amended Complaint, ¶ 64. However, the text of the letter merely states that "the Ohio FSA State Committee will have to consider [plaintiff's] actions cited in our letter of February 10, 2006, should she be nominated for an advisor position." It does not state that plaintiff categorically would not be considered for such a position. Further, there is no evidence that plaintiff has applied for another advisor position, or that she has been rejected. Any prejudice stemming from the April 6th letter is purely speculative at this point. The April 6th letter does not constitute an adverse job action sufficient to support a claim of retaliation in violation of public policy under Ohio law.
B. Public Policy Claim Precluded
In addition, the court notes that plaintiff's claim of retaliation in violation of public policy cannot stand to the extent that it mirrors her claim of alleged retaliation under the ADEA, 29 U.S.C. § 623(d), or Ohio Revised Code § 4112.02(I), the Ohio anti-retaliation provision. In Leininger v. Pioneer National Latex, 115 Ohio St.3d 311, 319, 875 N.E.2d 36 (2007), the Ohio Supreme Court held that "a common-law tort claim for wrongful discharge based on Ohio's public policy against age discrimination does not exist, because the remedies in R.C. Chapter 4112 provide complete relief for a statutory claim for age discrimination." The ADEA likewise provides a comprehensive statutory scheme for age discrimination at the federal level, such that it is the exclusive remedy for age discrimination in federal employment. See Briggs, 463 F.3d at 517. Since the standards for ADEA and Chapter 4112 age discrimination claims are the same, see Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1115 (6th Cir. 2001) and Coryell v. Bank One Trust Co., N.A., 101 Ohio St.3d 175, 177-180, 803 N.E.2d 781 (2004), it is unlikely, in light of Leininger, that Ohio courts would recognize a claim for wrongful discharge in violation of public policy based on violations of the ADEA.
Further, as noted above, plaintiff's claims under the ADEA and the First Amendment have not survived defendants' motion for summary judgment. To the extent that plaintiff relies on these claims as the alleged violations of Ohio's public policy, her wrongful discipline claim also fails. See Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001) (failure to prove federal statutory violation precludes violation of Ohio public policy).
VI. Intimidation Claim
In Count VI of the complaint (mislabeled as a second Count V), plaintiff asserts a claim for intimidation of plaintiff as a public servant in violation of Ohio Rev. Code § 2921.03 and 18 U.S.C. § 1505 by defendants Hinton, Garringer, Herzog and Leslie. She alleges that these defendants were acting under color of state law, and that she is entitled to redress under 42 U.S.C. § 1983.
Count VI fails to state a claim for a number of reasons. To establish a claim under § 1983, plaintiff must prove that she was deprived of a right secured by the Constitution or laws of the United States and that the deprivation was caused by the defendant while acting under color of state law. West, 487 U.S. at 48. As previously discussed, there is no evidence that the defendants were state employees, or that they were acting under color of state law in committing any of the acts alleged by plaintiff. Section 1983 does not apply to federal officers acting under color of federal law. Williams, 97 Fed.App'x at 574.
Plaintiff alleges that she was injured due to defendants' violation of § 2921.03, a provision of Ohio law. Allegations of state law violations will not support a § 1983 claim. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005).
Plaintiff also alleges that the defendants violated 18 U.S.C. § 1505. Section 1505 defines the federal crime of obstruction of proceedings before departments, agencies, and committees, and prohibits the use of a "threatening letter or communication" to influence, obstruct, or impede "the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States[.]" § 1505. However, there is no right to bring a private cause of action under a criminal statute. AirTrans, Inc. v. Mead, 389 F.3d 594, 598 (6th Cir. 2004) (no private cause of action under 18 U.S.C. § 1001); Hamilton v. Reed, 29 Fed.App'x 202, 203 (6th Cir. Jan. 2, 2002) (no private cause of action based on 18 U.S.C. § 1505 and other criminal statutes).
To the extent that Count VI asserts a tort claim under Ohio law, it also fails. Section 2921.03(A) is a criminal statute which prohibits any person "by unlawful threat of harm" or by "using a materially false or fraudulent writing with malicious purpose" from attempting to influence, intimidate or hinder a public servant. § 2921.03(A). A "public servant" is defined as a "public official" or a person performing ad hoc a governmental function. Ohio Rev. Code § 2921.01(B). A "public official" is defined as "any elected or appointed officer, or employee, or agent of the state or any political subdivision[.]" Ohio Rev. Code § 2921.01(A). There is no evidence that plaintiff was an employee of the State of Ohio or a political subdivision of the state, or that she was acting in any capacity on behalf of a state government entity. In addition, Ohio courts have also held that criminal provisions cannot form the basis for a private cause of action. See Biomedical Innovations, Inc. v. McLaughlin, 103 Ohio App.3d 122, 126, 658 N.E.2d 1084 (1995) (no civil damages based on violation of criminal statute);Delaney v. Skyline Lodge, Inc., 95 Ohio App.3d 264, 277, 642 N.E.2d 395 (1994) (§ 2921.03 does not provide a civil remedy).
Count VI of the complaint fails to state a claim for relief, and defendants are entitled to summary judgment on this claim.
VII. Impact of FTCA on State Tort Claims A. Claim Against the United States
Defendants argue that plaintiff's state tort claims (intentional infliction of serious emotional distress, wrongful discipline in violation of public policy, and intimidation) must be pursued under the mechanism provided by the FTCA.
The FTCA waives the sovereign immunity of the United States with respect to state tort claims. 28 U.S.C. § 2674. The FTCA provides the sole avenue by which state law tort claims may be brought against the United States as a defendant for the actions of any office of the federal government. See 28 U.S.C. § 2679(a);Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 477-78 (1994); Federal Express Corp. v. United States Postal Service, 151 F.3d 536, 540 (6th Cir. 1998). A federal agency cannot be sued under the FTCA. Chomic v. United States, 377 F.3d 607, 608 (6th Cir. 2004). Therefore, insofar as plaintiff seeks recovery from the FSA by naming defendants Johanns and Lasseter in their official capacities, her claims against the FSA are precluded by the FTCA. Tort actions subordinate to the FTCA must conform to the rules, standards, and procedures of the FTCA. Loeffler v. Frank, 486 U.S. 549, 562 (1988). The FTCA provides:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the plaintiff shall have first presented the claim to the appropriate federal agency[.]28 U.S.C. § 2675(a). Thus, the plaintiff must exhaust any administrative remedies before bringing a lawsuit. Singleton v. United States, 277 F.3d 864, 872 (6th Cir. 2002).
Defendants correctly note that there is no evidence that plaintiff submitted her claim for money damages to the FSA or followed the exhaustion procedures mandated by the FTCA. This failure to file a timely administrative claim under the FTCA bars federal jurisdiction. Id.
Plaintiff argues that because recovery for compensatory and punitive damages, including damages for intentional infliction of emotional distress, is permitted in retaliation cases under the ADEA, her claim for intentional infliction of emotional distress is not governed by the FTCA. To the extent that plaintiff bases her claim for intentional infliction of emotional distress in Count V on Ohio law, it is governed by the FTCA. To the extent that plaintiff is alleging intentional infliction of emotional distress as an element of damages under her ADEA claims, this claim is dependent on the viability of her ADEA claims, and this court has determined that defendants are entitled to summary judgment on plaintiff's ADEA claims.
B. Claims Against the Individual Defendants
Plaintiff argues that she may prosecute her state tort claims against the individual defendants sued in their individual capacities. Under the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679 (the "Westfall Act"), the United States is to be substituted in a civil action for money damages brought against a federal employee who is alleged to have committed a common law tort while acting within the scope of his employment. See 28 U.S.C. § 2679(b)(1); Osborn v. Haley, 549 U.S. 225 (2007); Dolan v. United States, 514 F.3d 587, 592 (6th Cir. 2008). The Westfall Act provides:
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.28 U.S.C. § 2679(d)(1). The Attorney General has delegated to the United States Attorney the authority to provide such certification. 28 C.F.R. § 15.4. Upon the certification by the United States Attorney, the employee is dismissed from the action, the United States is substituted as defendant in place of the employee, and the litigation is thereafter governed by the FTCA. Dolan, 514 F.3d at 592. The United States Attorney has filed a certification in the instant case, finding that defendants Connelly, Herzog, Leslie, Garringer and Hinton were acting within the scope of their employment and office as employees of the United States Government at the time of the incidents out of which plaintiff's claims arose. See Doc. No. 33, Notice of Substitution.
The certification is subject to judicial review for purposes of substitution. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995). The certification provides prima facie evidence that the employee was acting within the scope of employment. RMI Titanium Co. v. Westinghouse Electric Corp., 78 F.3d 1125, 1143 (6th Cir. 1996). When reviewing a certification question, this court must identify and resolve disputed issues of fact necessary to its decision. Singleton, 277 F.3d at 870.
"Whether an employee was acting within the scope of his employment is a question of law, not fact, made in accordance with the law of the state where the conduct occurred." RMI Titanium, 78 F.3d at 1143. Under Ohio law, an employee acts within the scope of employment if the employee acts within his authority during the course of employment even though acting intentionally or maliciously. Id. "The scope of employment issue does not focus on the alleged wrongful nature of the employee's actions; rather, the issue is the actions complained of and whether those actions are `so divergent that [their] very character severs the relationship of employer and employee.'" Id. at 1144 (quoting Osborne v. Lyles, 63 Ohio St.3d 326, 330, 587 N.E.2d 825 (1992)). In contrast, an employee does not act within the scope of employment where the employee's actions did not arise out of the employee's duties with the government agency and were independent self-serving acts for personal benefit which in no way facilitated or promoted the employer's business. Woods v. McGuire, 954 F.2d 388, 390 (6th Cir. 1992) (citing Byrd v. Faber, 57 Ohio St.3d 56, 59, 565 N.E.2d 584 (1991)).
For example, in Singleton, the court upheld the certification that the defendant supervisor acted within the scope of his employment even though he allegedly attempted to have plaintiff removed from his job, filed false and degrading reports against him, punished him for pursuing his legal rights, and leaked confidential information about the plaintiff. The court noted that these actions were taken within the defendant's authority as plaintiff's superior officer during the course of employment, and that no fact alleged by plaintiff would sever the relationship between employer and employee. Singleton, 277 F.3d at 871.
Plaintiff has filed a motion (Doc. No. 35) arguing that the individual defendants acted outside the scope of their employment and asking the court to conduct an evidentiary hearing on the certification. However, the mere fact that a federal employee's actions are alleged to be unlawful or in derogation of the plaintiff's rights is not sufficient to find that the employee's actions were outside his or her authority. RMI Titanium, 78 F.3d at 1143. No hearing on certification is necessary where, even if the plaintiff's assertions were true, the complaint's allegations establish that the employee was acting within the scope of his or her employment. Id. Thus, where a plaintiff "pleads conduct within an individual's scope of employment and merely alleges bad or personal motive, summary dismissal of the scope challenge is warranted." Id.
In view of the evidence already in the record, the court concludes that it is apparent that the individual defendants in this case were acting within the scope of their employment in regard to the acts about which plaintiff complains, and that an evidentiary hearing would not serve to further clarify the issue of certification. The alleged acts of the individual defendants in response to plaintiff's actions as minority advisor advocating in favor of Levering in her personnel matters, even if wrong or malicious, were not so divergent as to sever the relationship of employer and employee and render those acts outside the scope of their employment. In particular, the February 10th proposed termination letter and the April 6th letter rescinding plaintiff's termination which constitute the primary basis of plaintiff's claims were employment actions which could only have been taken by defendant Leslie in her supervisory capacity as chairperson of the Ohio State FSA Committee.
Since the certification in this case was appropriate, the United States is the only defendant for purposes of plaintiff's state tort claims, and the administrative requirements of the FTCA must be fulfilled. Dolan, 514 F.3d at 593. Since there is no evidence that plaintiff filed a timely administrative claim, her state tort claims must be dismissed for lack of jurisdiction.Id.; Singleton, 277 F.3d at 872.
VIII. Motion to Continue
Plaintiff has filed a motion (Doc. No. 27) pursuant to Fed.R.Civ.P. 56(f) for a continuance in which to obtain additional discovery. Rule 56(f) provides that a court may order a continuance to permit affidavits to be obtained, depositions to be taken, or discovery to be had, if a party's affidavit demonstrates that facts essential to justify the party's opposition may be obtained. However, Rule 56(f) "is not a shield that can be raised to block a motion for summary judgment without even the slightest showing by the opposing party that his opposition is meritorious." Emmons v. McLaughlin, 874 F.2d 351, 356 (6th Cir. 1989). "The non-moving party must show how postponement of a ruling on the motion will enable him to rebut the motion for summary judgment." Lewis v. ACB Business Services, Inc., 135 F.3d 389, 409 (6th Cir. 1998).
Plaintiff's motion for a continuance was filed on March 18, 2008, over five months ago. Plaintiff has had ample opportunity to obtain and present additional evidence since that time. Plaintiff also had the opportunity to obtain discovery during the administrative proceedings in her case. Most of the arguments made by the defendants in their motion for summary judgment are readily resolved by the evidence already in the record. In her motion for a continuance, plaintiff contends that she needs additional time to obtain discovery relevant to her age discrimination and First Amendment claims. However, she does not explain what evidence she hopes to obtain which would be sufficient to raise a genuine issue of material fact in light of the fact that her complaint fails as a matter of law to allege an adverse employment action sufficient to sustain those claims. Plaintiff has not shown how additional discovery will allow her to overcome this fundamental defect in her claims, and her motion for a continuance to pursue additional discovery is denied.
IX. Conclusion
In accordance with the foregoing, defendants' motion for summary judgment (Doc. No. 14) is granted. The clerk shall enter judgment in favor of the defendants on plaintiff's claims. Plaintiff's motion to continue (Doc. No. 27) is denied. Plaintiff's motion for a hearing (Doc. No. 35) is denied. Defendants' motion for a protective order (Doc. No. 39) is moot.