Opinion
Case No. C-2-02-530
September 26, 2002
ORDER
Plaintiff Eileen Tisdale brings this action against defendant United States Postal Service for gender discrimination, sexual harassment, and interference with parental interest in a minor. The complaint alleges that the Postal Service denied Tisdale employment because of her gender. The complaint further alleges that the Postal Service wrote a letter to her stating that it would not hire her because she failed to disclose a misdemeanor conviction for criminal mischief in response to the question on PS Form 2591: "Have you ever been convicted of a crime . . .?"
This matter is before the Court on defendant's unopposed June 14, 2002 motion to dismiss (doc. 2). For the reasons set forth below, defendant's motion is GPANTED.
I. Allegations of the Complaint
The complaint alleges that Tisdale completed and passed the Postal Service's "460 exam" on February 7, 2002. Tisdale's name was placed on a register for employment consideration, thereby making her eligible for employment at the Postal Service's branches in Powell, Westerville, Dublin, Hilliard, Galena, and Marysville.
Tisdale had job interviews on March 15 and April 8, 2002 for positions with the Powell and Westerville branches. These interviews were conducted by male postmasters. Tisdale alleges that the interviews served no legitimate purpose because she had already qualified by passing the exam. Tisdale claims these interviews "should be considered sexual harassment" because she "had to sit in front of these men" and "expose . . . personal attributes such as [her] name, address and phone number, for no other purpose but to be rejected." "As a female, I did not feel it necessary to relate privately with a man unless it is specifically agreed upon." Attached to the complaint are letters dated April 8 and April 11 from Linda Morgan, Human Resources Specialist, informing Tisdale that she was not selected for the positions.
Tisdale had a third interview, apparently in early April 2002, with a female postmaster in Dublin. On May 6, Linda Morgan sent a letter to Tisdale informing her that she was selected for hire, but the Postal Service could not continue processing her application. The letter stated that Tisdale had checked "NO" in response to the question of whether she had ever been convicted of a crime. Upon checking Tisdale's record, the Postal Service found that she was convicted of criminal mischief on September 4, 1997. The letter stated that Tisdale was disqualified for employment because her failure to disclose the criminal conviction constituted "falsification of an official postal document."
Tisdale alleges that her "court record cannot be held against [her] employment" because she was not convicted, but rather she pleaded guilty "due to special circumstances." Tisdale states that she pleaded guilty when she was five months pregnant so she could continue to support herself and her mother.
II. Summary Judgment
Summary judgment is governed by Rule 56(c) of the Federal Rules of Civil Procedure 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.
"[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphasis in original); Kendall v. The Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984).
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, 477 U.S. at 247-248. The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). Therefore, summary judgment will be granted "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, . . . [and where] no genuine issue remains for trial, . . . [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464, 467 (1962); accord, County of Oakland v. City of Berkeley, 742 F.2d 289, 297 (6th Cir. 1984).
In a motion for summary judgment the moving party bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970) (footnote omitted). Inferences to be drawn from the underlying facts contained in such materials must be considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Watkins v. Northwestern Ohio Tractor Pullers Association, Inc., 630 F.2d 1155, 1158 (6th Cir. 1980).
If the moving party meets its burden and adequate time for discovery has been provided, 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). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 14 Wall. 442, 448 (1872)). As is provided in Fed.R.Civ.P. 56(e):
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
Thus, "a party cannot rest on the allegations contained in his . . . [pleadings] in opposition to a properly supported motion for summary judgment against him." First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 259 (1968) (footnote omitted).
III. Discussion
A. Gender Discrimination
A plaintiff may establish a prima facie case of discrimination under Title VII by presenting direct evidence of intentional discrimination. Talley v. Bravo Pitino Restaurant Ltd., 61 F.3d 1241 (6th Cir. 1995), citing Terbovitz v. Fiscal Court, 825 F.2d 111, 114-15 (6th Cir. 1987). Absent direct evidence of discrimination, a plaintiff must offer "indirect evidence from which an inference of discriminatory motive may be drawn, namely comparative evidence demonstrating that the treatment of plaintiff differs from that accorded to otherwise similarly situated individuals." Shah v. General Electric Co., 816 F.2d 264, 268 (6th Cir. 1987) (internal quotations omitted).
To establish a prima facie case of disparate treatment based on indirect evidence of discrimination, a plaintiff is required to show: (1) she is a member of a protected class; (2) she was qualified for the job; (3) despite her qualifications and performance, she suffered an adverse employment action; and (4) she was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside her protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Johnson v. Univ. of Cincinnati; 215 F.3d 561, 572-73 (6th Cir. 2000); Cooper v. City of North Olmsted, 795 F.2d 1265, 1270 (6th Cir. 1986).
Defendant does not dispute that Tisdale is a member of a protected class and that the decision not to hire her constitutes an adverse employment action. Defendant, however, argues that the other elements are not satisfied.
The Court finds that the complaint fails to state a claim of gender discrimination. With respect to the decision not to hire Tisdale at the Powell and Westerville branches, Tisdale has not identified who received those positions. There is no allegation that the persons selected by the Postal Service are outside the protected class.
With respect to the decision not to hire Tisdale at the Dublin branch, Tisdale again fails to allege that a person outside the protected class received the position. Further, based on the documents attached to the complaint, it is clear that Tisdale was not qualified for the position. Tisdale might dispute whether she can be properly labeled as someone with a criminal history, but the Postal Service did not disqualify her because of her criminal record. The Postal Service disqualified her because she failed to mention it on her employment application.
Tisdale has advanced the circumstances that caused her to plead guilty — her pregnancy and need to support herself and her mother — as a justification for her negative response to the question; but that does not explain her telling the Postal Service that she had no criminal conviction. Her guilty plea was a criminal conviction. A prospective employer had the right to believe that she would truthfully answer the question by checking "YES," then giving her explanation of the extenuating circumstances. The Postal Service's decision to disqualify her from employment because of her false answer to the question is a neutral reason not based on gender. Consequently, plaintiff Tisdale has no claim against the Postal Service that it failed to hire her for a job at its Dublin branch because of her gender.
B. Sexual Harassment
Courts recognize two types of sexual harassment claims: quid pro quo harassment and hostile work environment. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751 (1998); Blackenship v. Parke Care Centers, Inc., 123 F.3d 868, 872 (6th Cir. 1997). Here, Tisdale does not have a hostile work environment claim because she never worked for the Postal Service.
Under a quid pro quo theory of sexual harassment, an employer is held strictly liable for the conduct of its supervisory employees having authority over hiring, advancement, dismissal, and discipline under a theory of respondeat superior. To prevail under a quid pro quo theory, a plaintiff must assert and prove that: 1) she was a member of a protected class; 2) she was subjected to unwelcomed sexual harassment in the form of sexual advances or requests for sexual favors; 3) the harassment complained of was based on sex; 4) plaintiff's submission to the unwelcomed advances was an express or implied condition for receiving job benefits or plaintiff's refusal to submit to the supervisor's sexual demands resulted in a tangible job detriment; and 5) the existence of respondeat superior liability. Kauffman v. Allied Signal, Inc., 970 F.2d 178 (6th Cir. 1992); Highlander v. KFC Nat'l Management Co., 805 F.2d 644, 648 (6th Cir. 1986).
Tisdale alleges that she was subjected to sexual harassment at the March 15 and April 8, 2002 interviews because they were conducted by male postmasters to whom she had to "expose . . . personal attributes such as [her] name, address and phone number." These allegations fail to state a claim. The mere fact that men conducted the interviews does not support an inference that sexual advances or requests for sexual favors were made. Further, requesting a job interviewee to provide her name, address and phone number cannot be characterized as a sexual advance or request for sexual favors. An employer who conducted a job interview without obtaining the name and contact information of the applicant would be unable to communicate with the applicant about whether she would be hired. Requesting that information is not prohibited by employment discrimination laws.
C. Interference with Parental Interest in a Minor
Under Ohio Revised Code § 2307.50,
[I] f a minor is the victim of a child stealing crime and if, as a result of that crime, the minor's parents, parent who is the residential parent and legal custodian, parent who is not the residential parent and legal custodian, guardian, or other custodian is deprived of a parental or guardianship interest in the minor, the parents, parent who is the residential parent and legal custodian, parent who is not the residential parent and legal custodian, guardian, or other custodian may maintain a civil action against the offender to recover damages for interference with the parental or guardianship interest.
A "child stealing crime" is defined as kidnapping, abduction, unlawful restraint, interference with custody, or child stealing. O.R.C. § 2307.50(A)(1); § 2905.01; § 2905.02; § 2905.03; § 2905.04; § 2919.23.
Although it is unclear from the complaint, Tisdale appears to allege that the Postal Service interfered with her interest in her child because, by denying her a position of employment, it hindered her ability to support her family. These allegations fail to state a claim. Under Ohio law, the denial of employment does not constitute a "child stealing crime."
IV. Conclusion
For the reasons set forth above, defendant's June 14, 2002 motion to dismiss (doc. 2) is GRANTED and this action is DISMISSED.