Opinion
Case No. 4:99 cv 33
April 20, 2000
JUDGMENT
In accordance with the opinion issued herewith:
IT IS ORDERED AND ADJUDGED that defendants' motion for summary judgment (docket # 33) be and hereby is GRANTED. Judgment is hereby entered in favor of defendants upon all plaintiff's claims.
Defendants may tax their costs.
DONE AND ORDERED this 20th day of April, 2000.
This is a Title VII action brought pro se against the Montcalm Center for Behavioral Health (MCBH), a department of Montcalm County, Michigan. Plaintiff also named Bob Brown, MCBH's executive director and her immediate supervisor, Michael Chase as defendants. In June of 1999, the parties, pursuant to 28 U.S.C. § 636(c) and FED. R. Civ. P. 73, voluntarily consented to have a United States Magistrate Judge conduct all further proceedings in this case, including entry of final judgment. (docket # 15). On December 15, 1999, defendants filed their motion for summary judgment. (docket # 33). Plaintiff has filed responses (docket #'s 43, 49) and defendants have filed a reply brief (docket #48). For the reasons set forth below, defendants' motion for summary judgment will be granted.
Summary Judgment Standard
As the Sixth Circuit has noted, the federal courts have entered a "new era" in summary judgment practice. Cox v. Kentucky Dept of Transp., 53 F.3d 146, 150 (6th Cir. 1995); Street v. J. C. Bradford Co., 886 F.2d 1472, 1478-81 (6th Cir. 1989). While preserving the constitutional right of civil litigants to a trial on meritorious claims, the courts are now vigilant to weed out fanciful, malicious, and unsupported claims before trial. Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) ( en banc); Sable v. General Motors Corp., 90 F.3d 171, 175 (6th Cir. 1996); Payne v. Board of Education, 88 F.3d 392, 397 (6th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
The standard for determining whether summary judgment is appropriate is "whether `the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" See Adcox v. Teledyne, Inc., 21 F.3d 1381, 1385 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52); see also, Burnett v. Tyco Corp., 203 F.3d 980, 982 (6th Cir. 2000); Crabbs v. Copperweld Tubing Products Co., 114 F.3d 85, 88 (6th Cir. 1997).
The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wathen v. General Elec. Co., 115 F.3d 400, 403 (6th Cir. 1997). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993).
Once defendants show that "there is an absence of evidence to support the nonmoving party's case," plaintiff has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To sustain this burden, plaintiff may not rest on the mere allegations of her pleadings. FED. R. Civ. P. 56(e); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995); Cox, 53 F.3d at 150. "[T]he nonmoving party must go beyond the pleadings and by affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue of fact for trial." Moore, 8 F.3d at 339. A party opposing a motion for summary judgment has the burden to come forth with requisite proof to support her legal claim, particularly where she has had an opportunity to conduct discovery. See Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994); Street v. J. C. Bradford Co., 886 F.2d at 1478-81; Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989). In so doing, plaintiff must set forth specific facts showing that there is a genuine issue for trial. FED. R. Civ. P. 56(e); see Mounts v. Grand Trunk Western R.R., 198 F.3d 578, 580 (6th Cir. 2000); Kensu v. Haigh, 87 F.3d 172, 175 (1996); Brennan v. Township of Northville, 78 F.3d 1152, 1156 (6th Cir. 1996).
Facts A.
The facts, taken in the light most favorable to plaintiff, are as follows. MCBH provides mental health counseling and therapeutic services to Montcalm County residents. Plaintiff, an African-American woman, began her employment as an outpatient therapist with MCBH on August 26, 1986. Plaintiff is licensed by the State of Michigan as a limited license psychologist.
Plaintiff's job duties required her to evaluate, diagnose, develop and monitor treatment plans for behavioral health care of persons requesting the service of MCBH and to maintain complete and detailed case records. In addition to working with individual clients, plaintiff's job required her to work with other community professionals and peers within MCBH.
Plaintiff's complaint is based upon her May 29, 1998 charge of discrimination objecting to two one-day suspensions imposed by defendant Chase in February of 1998. Plaintiff's administrative charge identified February 9, 1998 as the date the allegedly discriminatory acts occurred. Plaintiff claimed the suspensions were the result of race discrimination and retaliation.
Plaintiff's administrative charge stated as follows:
I began employment with Montcalm Behavioral Health, which is under MMH, on August 26, 1986 and currently work as an outpatient therapist. I am a black woman and the only black woman at the time of suspension.
On 2/9/98, I was suspended for two days without pay because of a complaint of alleged unprofessional conduct and because of alleged low direct client contact. I was not unprofessional. The client contacts are provided by the agency I had requested additional clients but was not provided the numbers.
I know of at least one white employees who have had complaints filed against them and whose client contacts are low who have not been suspended or disciplined in any manner.
I am a black woman and I believe I was unfairly suspended because of my race.
(5/29/98 Administrative Charge #23A985901, Complaint Ex. 2). On January 11, 1999, the EEOC issued its right to sue letter based upon this charge. (Complaint, Ex. 1).
The one-day suspension for unprofessional conduct related to plaintiff's verbal confrontation with an elementary school social worker on the morning of January 28, 1998, in the presence of two elementary school children present at MCBH for professional assistance. Administrative Assistant Julie Stephens wrote the following incident report concerning the complaint she received about plaintiff's conduct.
At 10:30 a.m. I was in my office when I heard a very loud exchange of words between Birda Walker and another woman. Shortly thereafter I was contacted by the receptionist that there was a woman at the front desk who would like to talk with a supervisor regarding Birda's behavior. Immediate supervisors were out of the office so I met with the complainant. The complainant's name is Deb Benner. She is a school social worker at Central Montcalm Elementary School. She wanted to complain about the "very unprofessional and rude treatment" she received from Birda Walker. She explained to me that she had brought [names deleted] in to see Birda Walker thinking they both had appointments with her. When she got here Birda informed her that [name deleted] was not her client and she was not scheduled to see her. Both children were apparently in the room and were upset by the exchange of words between Ms. Walker and Ms. Benner. Ms. Benner's concern was that [name deleted] really needed services and was now reluctant to return to this office because of the treatment he received. Also, following the appointment [name deleted] did request not to return to see Ms. Walker. I informed Ms. Benner that this situation would be followed-up and the Associate Director, Renee Barnaby would contact her to listen to her concerns and follow up so the children get the services they need. (docket # 33, Ex. A, Plf. Dep. at 33 and Attachment 6-O).
Defendant Chase, plaintiff's immediate supervisor, completed the portion of the form describing the administrative action taken to remedy or prevent reoccurrence of the incident giving rise to the complaint.
Interviews with Ms. Walker, Julie Stevens, Douglas Nurenburg, Barb Luskin, Rhonda Falsetta, and Mary Smejkal were conducted to verify to the details and accounts of the identified incident. All parties consistently verify that a loud exchange took place between Ms. Walker and Ms. Benner regarding confusion over scheduled services for [name deleted]. This exchange in the hall by the public restrooms escalated as the exchange moved into Ms. Walker's office. By Ms. Walker's own account she tried to communicate to Ms. Benner that she was only scheduled to see [name deleted] and not [name deleted]. What is grossly missing from all accounts is any effort by Ms. Walker to assist in clarifying or helping to resolve the confusion about [name deleted's] appointment. Instead the incident escalated to what was described by one observer as a loud argument by Ms. Walker and Ms. Benner. Of particular concern was that the incident took place in the presence of [names deleted].
Ms. Walker's conduct in this incident is in violation of agency policy. All staff are expected to conduct themselves in a professional manner and refrain from argumentative or rude behavior with any customer. The well being of all clients must be preserved to the best extent of the clinician's ability in dealing with any situation. Supervisory action consistent with agency policies shall be implemented.
The child that had been in plaintiff's care was transferred to a different therapist. Plaintiff received discipline in the form of a one-day suspension. (docket # 33, Ex. B, Brown Aff. ¶ 16(d)).
The basis identified for plaintiff's second one-day suspension was a productivity problem based upon the level of plaintiff's direct client contact for the evaluation period from September through December of 1997. MBCH has established an outpatient therapist direct service expectation of 60%. A therapist's performance is evaluated by deleting an employee's leave hours of various types from the total number of hours to arrive at the number of available hours. The available hour figure is then multiplied by 60% to achieve a direct service expectation number. On February 2, 1998, defendant Chase authored an employee performance improvement plan addressing plaintiff's productivity problem in this area. (docket # 33, Ex. A, Attachment 6-P).
The performance improvement plan dated 9/26/97 called for an improvement in direct service contact time to a rate of 48% (217.44 hours) for the period of 9/26/97 through 12/27/97. Direct service figures from the period of 9/26/97 through 12/27/97 equaled a direct service rate of 37% (167 direct service hours). Due to the fact that direct service performance has shown little to no improvement, and has fallen well below identified expectations, more progressive steps are necessary to address this problem. As a result, a one day unpaid work suspension will be implemented from 5:00 p.m. on 2/2/98 to 5:00 p.m. on 2/3/98.
Tasks and Time line
Upon return from work suspension Ms Walker will be expected to maintain a direct service rate of 60% (271.8 hours per quarter or 1087 hours per annual period). Performance improvement will continue to be monitored, as is consistent with established improvement plan, with the next review date being adjusted to 4/5/98 to take into account current disciplinary action.
Plaintiff's employment records also show that on March 31, 1998, plaintiff was suspended for two and one half days for "rude, disrespectful and unprofessional behavior" toward Ms. Gina Anderson, a Human Resources Director at Frigidaire. The suspension was scheduled to take place from April 1, 1998 until noon of April 3, 1998. (docket # 33, exhibits 6Q, 6R). Plaintiff elected not to include this incident and disciplinary action in her May 28, 1998 administrative charge.
( Id.).
In her brief, plaintiff stated that she requested additional client contact opportunities from defendant Chase once in writing in 1994 and verbally on numerous occasions. (docket # 43, Plf.
Brief at 16 and Ex. 16-B). Plaintiff has provided no admissible proof in support of this assertion. Director Brown's unrebutted affidavits state that MCBH provided plaintiff with more client contact opportunities than any other outpatient therapist. (docket # 33, Ex. B, Brown Aff. ¶ 16(e), docket # 48, Ex. E, Brown Aff. ¶ 5).
Defense counsel asked plaintiff at her deposition to identify the white employee mentioned in her administrative charge who had complaints filed against her and whose client contacts had been low but had not been suspended or disciplined in any manner.
Plaintiff did not answer the question. Plaintiff did state, "I would have to go back to my file and find out the name. I got it all wrote down, and I will send that to you. I will make a note of that." (Docket # 43, Ex. 4, Plf. Dep at 117).
Despite her promise, plaintiff has not presented evidence that any other outpatient therapist was involved in a heated verbal exchange in front of elementary school-age clients or other impressionable persons. The records she attached evaluating the performance of other MCBH employees show direct service ratings of 64% for Ms. Nola Gullach (docket # 43, Ex. 17-C), 82.3% for Mr.
Douglas Nurenburg ( Id.), and incomplete data on Ms. Melissa Hamm, but she was projected to meet the 60% goal. ( Id.). Plaintiff relies upon an evaluation of Ms. Rhea which indicates that Rhea met the direct service expectation even though her service rate was only 56%. Plaintiff simply disregards the explanation in the "comments" section of the evaluation form.
Ms Rhea's direct service rate of fifty-six percent fell just below the outlined expectation of sixty percent. Inconsistencies in the agencies recording of direct service time are equal to approximately plus or minus four to six percent. One collection of data showed Ms. Rhea has the highest direct service producer in the past year in comparison to her peers. She did make strides to improve her direct service time over the last year. Ms Rhea also went on medical leave at the end of her evaluative period, leading to reduced direct service time as she closed and transferred cases in preparation for her leave.
(docket # 43, Ex. 17-A).
On March 22, 1999, plaintiff filed her complaint in this court. Plaintiff claimed that her two suspensions constituted a denial of the same terms and conditions of employment on the basis of race. (Complaint ¶ 8(F)).
B.
Plaintiff's complaint added a separate claim that her June 25, 1998 employment termination was on the basis of race. (Complaint ¶ 8(B)). There is no accompanying administrative charge and no EEOC right-to-sue letter related to plaintiff's employment termination.
Defendant Brown, MCBH's Executive Director, terminated plaintiff's employment on June 25, 1998, following an administrative review of plaintiff's performance in dealing with patient #9798. Plaintiff had conducted an initial interview of this young man on May 8, 1998. The patient's mother had brought him in because he was "talking suicide." On May 25, 1998, patient #9798 went down into the basement of his home, shot himself in the head and died from that injury. The suicide was reported to MCBH on May 26, 1998. (docket # 33, Ex. A, Attachment 7-C). On May 27, 1998, Cynthia Ingersoll, Director of Community Services and Consumer Care Committee Chairperson, received an incident report concerning the patient's suicide. Ms. Ingersoll reviewed the patient's file and noted significant deficiencies, in that important documents were missing, including the client's intake assessment and "Basis 32 total score." Ingersoll noted that when plaintiff was contacted concerning the missing documents, plaintiff reported that she had not yet completed the intake assessment. Ms. Ingersoll observed that the documents she found within the file showed that suicide was mentioned in the referral form and the patient had self-reported "extreme difficulty" in multiple areas on the Basis 32 form, yet the termination report completed by plaintiff gave a diagnosis of "Dysthymia, GAS of 50 and client chose to have no further services." ( Id.). Ms.
Ingersoll concluded as follows:
This file is incomplete and outside the expected timeliness for the completion of assessments. No where is it documented what services were offered or actions taken in response to the items on the Basis 32 or mother's statements on the referral. It is the recommendation of this reviewer that action be taken with the responsible clinician as it pertains to clinical responsibility for the integrity of the file, completion of required paperwork, and the safety of consumers. This review will be discussed with the Consumer Care Committee and recommendations of the final review will be shared with agency administration.
( Id.)
On May 28, 1998, three days after the patient's death, plaintiff completed the intake assessment and Basis 32 total score. The initial assessment was to be completed within 48 hours of the May 8th interview. Plaintiff completed the initial assessment 20 days after the interview. (docket # 33, Ex. A, Plf. Dep. at 66-67, 79, 83 and Attachments 7-B, 7-D; docket # 43, Ex. 3-B).
On June 9, 1998, Director Brown, Associate Director of Clinical Services Renee Barnaby and plaintiff's immediate supervisor Michael Chase met with plaintiff to provide her with an opportunity to explain her conduct regarding file #9798. Director Brown found that plaintiff was not able to offer additional assessment data or information. (docket # 33, Ex. B, Brown Aff. ¶¶ 21-22).
On June 16, 1998, the Consumer Care Committee met to consider the service rendered to patient # 9798. Agency policy and procedure call for such review when a client commits suicide. (docket # 33, Ex. B, Brown Aff. ¶ 28). The committee members attending the meeting were Cindy Ingersoll, Doug Nurenburg, Rhonda Falsetta, Barbara Luskin, Tracy Naert, Renee Barnaby and Michael Chase. The Committee stated its findings concerning the patient #9798's file as follows:
The file in its entirety was reviewed by all members of the committee. The summary submitted by the committee chair was received and the committee as a whole concurred with its findings. The committee also reviewed the intake completed and submitted for the file on 5-28-98 and was not included as part of the file review conducted at the time of the file suppression (5-26-98). The following are the findings of the committee.
1. The intake submitted was very brief providing little detail as to the assessment process in this case.
2. The intake is missing a comprehensive mental status sufficient to substantiate the diagnosis including lack of discussion of other possible diagnosis such as R/O Major depression.
3. The intake is missing a thorough assessment of the client's safety as it pertains to his stated hopelessness and his mother's concerns noted on the referral.
4. There is no documentation as to the efforts used to engage this young man in treatment; attempts to enlist the family's assistance in the assessment process or treatment recommendations; and no discussion or treatment recommendation offered or declined.
(docket # 33, Ex. A, Attachment 7-E).
Later on June 16, 1998, Psychiatrist Arnold Werner, MCBH's medical director, met with Barnaby, Chase and Ingersoll to review the findings of the Consumer Care Committee. Ms. Ingersoll submitted the following report.
The file and findings of the Consumer Care Committee were reviewed with Dr. Werner. Dr. Werner agreed with the findings of the committee. A summary of his findings follow.
1. The file was not documented in a timely way. The intake was not completed until 20 days following the intake. This is not consistent with agency policy or practice.
2. The clinician failed to seek and document supervision on a case with a potentially dangerous outcome.
3. Clinician failed to document steps taken regarding self report and mother's report of feelings of suicide. There was no documentation of attempts to secure release to talk to mother. There was no documentation regarding the seriousness of the suicidal thoughts, possible lethality of means available and possible need for direct intervention by the clinician.
Formal recommendations
Concur with the findings of the Consumer Care Committee regarding the contents of file #9798. Further recommend the immediate suspension of this clinician from seeing patients in this setting.
(docket # 33, Ex. A, Attachment 7-F).
On June 22, 1998, plaintiff received an additional opportunity to explain her handling of this case. Defendant Brown found that plaintiff's responses were to the effect that the young man did not want treatment and that "I did as I always do." (docket # 33, Ex. B, Brown Aff. ¶¶ 22-24).
On June 25, 1998, Robert Brown, MBCH's Director, made the final decision to terminate plaintiff's employment. "Although there have been instances of other clients who have committed suicide, there have been no other outpatient therapists who have so drastically failed to perform their duties in the manner Plaintiff handled her duties with regard to a suicidal patient." ( Id., ¶¶ 23-27).
At her deposition, plaintiff was unable to identify any other outpatient therapist who completed an initial assessment after the client had already killed himself.
Q Do you know if an initial assessment form for that, for any suicide, was completed after the suicide?
A Do I know of what? Any assessment?
Q You said you believe your sure that there were other client suicides. Correct?
A I'm sure there were.
Q Okay, but you don't know positively?
A I don't. I am requesting that information.
Q Okay All right. Do you —
A So I will get that information, I'm sure. I will know. Q All right. Assuming, saying hypothetically, that since you've heard about client suicide in the past, do you know whether the initial assessment form, similar to your situation, was completed after a suicide.
A I have no idea. As I said, I'm seeking information. Once I get clarity of that information.
(docket # 33, Ex. A, Plf. Dep. at 83).
Plaintiff produced in response to defendants' motion for summary judgment MCBH documents concerning a suicide by another MCBH patient (client # 2513). (docket # 43, Ex. 12-F). This client died from a self-inflicted gun shot wound sometime before September 24, 1997. Dr. Wener reviewed client # 2513's file. He found that the documentation on the patient's chart was "very good" and that this patient with chronic schizophrenia had received appropriate treatment. ( Id.; see also related progress notes, Ex. 12-E). Patient #2513 never received outpatient therapy because he suffered from chronic mental illness. (docket #48, Ex. E, Brown Aff., ¶ 1).
Plaintiff also produced documents concerning two other MCBH clients who purportedly committed suicide (client #'s 14196 and 11705, docket # 43, Ex. 12-A-D, 12-G). These documents do not relate to any instance where an outpatient therapist completed an initial assessment form outlining "treatment planning and recommendations" for a patient who was already dead.
Plaintiff submitted an affidavit from James R. Wise identifying outpatient therapists currently employed by defendant. Wise's affidavit does not identify the dates when these individuals began their employment with defendant or whether they are members of a protected class. (docket # 49, Ex. 19). MCBH has not hired anyone to replace plaintiff. Other MCBH employees have assumed plaintiff's workload. (docket # 33, Ex. B, Brown Aff., ¶ 26; docket # 48, Ex. E, Brown Aff., ¶ 2).
Discussion 1 .
Title VII of the Civil Rights Act of 1964 provides that "it shall be an unlawful employment practice for an employer" to discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. Plaintiff's supervisors, defendants Brown and Chase, are not within the statutory definition of "employer" under Title VII and cannot be held individually liable under Title VII. See Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir. 1997); 115 F.3d 400 (6th Cir. 1997); see also Smith v. Hubers, Inc., No. 98-5208, 1999 WL 191390, at * 1 (6th Cir. Mar. 19, 1999); accord Hiller v. Brown, 177 F.3d 542, 546 (6th Cir. 1999). Defendants Brown and Chase are entitled to judgment in their favor as a matter of law upon plaintiff's claims against them.
2.
As a statutory prerequisite to the ability to bring suit under Title VII, a claimant must file an administrative charge before the EEOC or analogous state agency and receive a right-to-sue letter at the conclusion of the administrative proceedings. 42 U.S.C. § 2000e-5(f)(1); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). Plaintiff's administrative charge 23A985901 against defendant MCBH stated that on February 9, 1998, she was wrongfully suspended for two days without pay for unprofessional conduct and low direct client contact. The only administrative complaint and right-to-sue letter from the EEOC are based upon plaintiff's two temporary suspensions in February of 1998.
Plaintiff never amended administrative charge 23A985901 to include a discrimination claim based upon her June 25, 1998 termination. Nor is there evidence before the court that she filed a new administrative charged based upon her termination.
It is well established that a district court's jurisdiction is "limited to the scope of the EEOC investigation reasonably expected to grow out of a charge of discrimination." Ang v. Proctor Gamble Co., 932 F.2d 540 (6th Cir. 1991). "A Title VII lawsuit following the EEOC charge is limited in scope to claims that are like or reasonably related to the allegations of the charge and growing out of such allegations." Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995). "The administrative charge requirement serves the important purposes of giving the charged party notice of the claim and narrowing the issues for prompt adjudication and decision." Park, 71 F.3d at 907. The requirement of specificity in the charge is not a mere technicality. "For allowing a complaint to encompass allegations outside the ambit of the predicate EEO charge would frustrate EEOC's investigatory and conciliatory role, as well as deprive the charged party of notice of the charge." Check v. Western Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). Although administrative charges made by non-attorneys are to be given a "broad reading," see Duggins v. Steak `N Shake, Inc., 195 F.3d 828, 832 (6th Cir. 1999), "[a] court cannot allow liberal interpretation of an administrative charge to bypass the Title VII administrative process." 71 F.3d at 907. The EEOC investigation reasonably expected to grow out of plaintiff's charge of discrimination involving two one-day suspensions imposed by her immediate supervisor in February of 1998 does not extend to plaintiff's June 1998 termination. The June termination was based on unrelated conduct, and the decision-maker was different. It came after a committee review process of plaintiff's handling of patient #9798's intake interview and file documentation. The review by the committee and review Psychiatrist Arnold Werner found that plaintiff's conduct did not meet professional standards. Director Brown made the final decision to terminate plaintiff's employment.
The court's finding that plaintiff's termination claim is outside the scope of her administrative charge will obviously result in plaintiff's termination claim being time barred. Any discrimination claim plaintiff would file now concerning her termination would fall far beyond the 300 days allowed by law to file a charge with the requisite agency. 42 U.S.C. § 2000e-5(e).
Plaintiff's failure to file any charge encompassing her termination is well outside the limited indulgence allowed pro se claimants. In Duggins v. Steak `N Shake, 195 F.3d 828 (6th Cir. 1999), the Sixth Circuit acknowledged that the scope of a district court's jurisdiction is limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination. 195 F.3d at 832. The court observed, "Defendants are correct that under normal circumstances the failure to check the appropriate box on an EEOC charge will deprive a court of jurisdiction to hear a claim." 195 F.3d at 832. In Duggins, the Sixth Circuit addressed the question of whether Rebecca Duggins's EEOC charge sufficiently alleged "retaliation" even though "Duggins failed to check the box marked `retaliation'" on the EEOC's form. 195 F.3d at 832. The district court granted summary judgment dismissing Duggins's retaliation claim, because of this deficiency in her administrative charge. A Sixth Circuit panel reversed. The Sixth Circuit found that the distinguishing characteristic of this case was that Rebecca Duggins had filed an affidavit with the EEOC on the same day she filed her administrative charge. Duggins's affidavit clearly raised allegations of retaliation for her complaints to Steak `N Shake management of sexual harassment of her and her daughter and identified specific acts of alleged retaliation. 195 F.3d at 832-33. The Sixth Circuit held that, "Where the plaintiff alleged facts to the EEOC which clearly included retaliation allegations, even though those facts were relayed through an affidavit, and where that plaintiff was not represented by legal counsel in writing her one-page EEOC charge, such a plaintiff should not be precluded from bringing a retaliation claim in the complaint."
If anything, the Duggins decision supports dismissal of plaintiff's employment termination claim. Plaintiff did not make any factual allegations in her administrative charge, nor in any remotely contemporaneously filed affidavit, claiming discrimination in her employment termination. In its even more recent Title VII decision in Grams-Humphreys v. Memphis Brooks Museum of Art, Inc., No. 98-5971, 98-6098, ___ F.3d ___, 2000 WL 352370, at * 8 (6th Cir. Apr. 6, 2000), the Sixth Circuit emphasized that pro se litigants cannot be excused from basic pleading requirements. Plaintiff's employment termination claim must therefore be dismissed for plaintiff's failure to submit it to the appropriate agency as required by statute.
Alternatively, under the assumption that plaintiff's employment termination claim somehow fell within the scope of her administrative charge, defendants are entitled to judgment in their favor as a matter of law, because plaintiff failed to establish a prima facie case of race discrimination and did not overcome defendants' legitimate, nondiscriminatory reason for her termination.
Plaintiff alleges that she was discharged in June of 1998 on the basis of race discrimination. To establish a prima facie case of race discrimination under Title VII, a plaintiff must show that (1) she was a member of a protected class, (2) she was discharged, (3) she was qualified for the position, and (4) she was replaced by a person outside the protected class. See Mitchell v. Toledo Hosp., 964 F.2d 577, 581 (6th Cir. 1992); Pascual v. Anchor Advanced Prod., Inc., No. 96-5453, 1997 WL 397221, at * 2 (6th Cir. July 10, 1997); accord Laderach v. U-Haul of Northwestern Ohio, No. 99-3155, F.3d 2000 WL 306469, at * 2 (6th Cir. Mar. 27, 2000). "The prima facie case is not the final inquiry, but rather the first prong of the analysis which defeats a motion for dismissal prior to trial." EEOC v. Avery Denison Corp., 104 F.3d 858, 861 (6th Cir. 1997). 1f the plaintiff is successful in proving her prima facie case the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action. McDonell Douglas v. Green, 411 U.S. 792, 802-03 (1973); Diehl v. Tele-Solutions, Inc., 57 F.3d 482, 483 (6th Cir. 1995). If the defendant meets this burden, the plaintiff must then show that the defendant's articulated reason is a pretext for discrimination. 411 U.S. at 802-03; Allen v. Michigan Dep't of Corrections, 165 F.3d 405, 409 (6th Cir. 1999); Mitchell, 964 F.2d at 584.
It is undisputed that plaintiff is a member of a protected class. Employment termination is obviously an adverse employment decision. Plaintiff was a limited licensed psychologist employed by MCBH as an outpatient therapist. Plaintiff has not presented evidence creating a genuine issue for trial on the fourth element of her prima facie case. Plaintiff was not replaced by an employee outside the protected class. Plaintiff's duties were assumed by other MCBH employees. In its recent decision in Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999), the Sixth Circuit reiterated that "an employee is not `replaced' when his or her former duties are redistributed among the remaining employees." Id. at 752 (citing Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992)).
Assuming arguendo plaintiff had presented sufficient evidence to establish a prima facie case, she did not and cannot overcome the defendants' legitimate, non-discriminatory reason for her termination. Plaintiff was terminated for her grossly negligent handling of client # 9798's file. Plaintiff has not presented any evidence that any other MCBH outpatient therapist submitted an initial assessment purporting to recommend treatment options for a client who was dead days before the report was completed, or was guilty of a similarly egregious violation, yet was not terminated. Defendant MCBH is entitled to judgment in its favor as a matter of law on this claim.
3.
Plaintiff's claims related to her February 1998 suspensions are subject to the same analytical framework. To establish a prima facie case of race discrimination in terms and conditions of employment under Title VII, a plaintiff must show that (1) she was a member of a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position, and (4) that she was treated differently than a comparable non-protected employee for the same or similar conduct. See Mitchell, 964 F.2d at 581. There is no dispute concerning plaintiff's status as a member of a protected class or that plaintiff's brief suspensions constituted adverse employment actions . See Jackson v. City of Columbus, 194 F.3d at 752. Defendant MCBH's motion focuses on plaintiff's failure to prove the fourth element of her prima facie case and plaintiff's failure to offer any evidence that defendants' legitimate, non-discriminatory reasons for suspending plaintiff were a pretext for discrimination.
Plaintiff has not submitted evidence on the fourth element of her prima facie case relating to the suspension for her involvement in an argument with an elementary school social worker in front of two elementary school children who were MCBH clients. In order to establish the fourth element of a prima facie case for disparate treatment, a plaintiff must "demonstrate that he or she is similarly situated in all relevant aspects." Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998). A "plaintiff need not demonstrate an exact correlation with the employee receiving more favorable treatment in order to be considered `similarly situated;' rather . . . the plaintiff and the employee with whom the plaintiff seeks to compare himself or herself must be similar in all of the relevant aspects." Ercegovich, 154 F.3d at 352. Although the court must make an "independent determination" of relevant factors, generally cases alleging differential disciplinary action require an examination of whether "`the individuals with whom plaintiff seeks to compare his/her treatment have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or employer's treatment of them for it.'" Ercegovich, 154 F.3d at 352 (quoting Mitchell, 964 F.2d at 583). Plaintiff has not provided any evidence that she was treated differently than any other employee for even remotely comparable conduct. No reasonable trier of fact could find in her favor on the fourth element of her prima facie case. MCBH presented a legitimate nondiscriminatory reason for the suspension. Plaintiff did not make any showing that her brief suspension for involvement in this argument in front of MCBH clients was a pretext for discrimination. MCBH is entitled to judgment in its favor as a matter of law on this claim.
Plaintiff did submit some evidence relating to her one-day suspension in February 1998 for below-expected productivity in terms of direct service contact time. However, instead of supporting plaintiff's claim, her evidence undermines it. The documents relied upon by plaintiff show that plaintiff's performance numbers were well below the 60% expectation for all outpatient therapists and substantially below her peers. Plaintiff received more client contact opportunities than any other outpatient therapist. Plaintiff has not provided evidence that her brief suspension was treatment different from that received by a comparable non-protected employee for the same or similar conduct. See Mitchell, 964 F.2d at 582; see also Jones v. Ciba-Geigy, Inc., No. 96-1573, 1997 WL 595083, at * 4 (6th Cir. Sept. 25, 1997). Again, plaintiff has not presented evidence showing that defendants' legitimate nondiscriminatory reason for the suspension was a pretext for discrimination. Defendant MCBH is entitled to judgment as a matter of law on this claim.
Conclusion
For the reasons set forth above, plaintiff's employment termination claim will be dismissed and defendants' motion for summary judgment (docket # 33) will be granted.