Opinion
Case No. 2:05-cv-0894.
January 4, 2008
OPINION AND ORDER
Plaintiff James E. Holt filed this action pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. Mr. Holt alleges that the Ohio Department of Youth Services and various ODYS employees, acting in their official capacities, discharged him from his employment because of his age. The defendants have moved for summary judgment on Mr. Holt's ADEA claim. For the following reason, the defendants' summary judgment motion will be granted.
I.
The following facts are taken from the amended complaint and the materials submitted by the parties in connection with the present motion. Mr. Holt is fifty-two years of age, and was over forty years old at the time of the alleged discrimination. He was hired by ODYS on December 18, 1977, as a youth leader. From that day forward, he worked for ODYS in various jobs and at various locations. His final position with ODYS was juvenile corrections officer at the Circleville Juvenile Correctional Facility.
On January 23, 2004, Mr. Holt was involved in an altercation with a juvenile inmate at CJCF in which he was accused of slapping and punching the youth. Mr. Holt denied using excessive force and gave the following written statement to the ODYS investigator assigned to investigate the altercation:
Youth was told to leave the school area. He tried to get past me. I told him he was not getting past me. I attempted to use escort control and C grip. The youth grab my arm. I told him to let go. I swung my arm down on his arm to break his hold. My swing came down from the top and might struck youth but the impack (impact) was on his hand which made youth let go. Other staff then restrain youth. I left the sence (scene).
Holt Dep. Exh. E. p. 931. Based on his interviews of ten witnesses, including three staff members and seven inmates, and physical evidence consisting of a "superficial abrasion to the right side of [the youth's] upper lip," the investigator concluded that Mr. Holt had used inappropriate force on the youth. The investigator further concluded that this inappropriate use of force violated ODYS policy which generally prohibits the use of "physical response" except under certain designated criteria such as the prevention of imminent physical harm to self and others, property damage, escape or to preserve institutional security. Following the investigation, Mr. Holt was placed on paid administrative leave on January 27, 2004.
Officials at CJCF held a pre-disciplinary conference on March 2, 2004, where they informed Mr. Holt of the charges against him, went over the results of the investigation, and afforded him an opportunity to respond. A union representative was present at the hearing. Mr. Holt again denied striking the youth in the manner alleged. He said that he had sought only to restrain the youth and break the youth's hold on his arm. At the conclusion of the pre-disciplinary conference, the hearing officer found probable cause to discipline Mr. Holt for use of excessive force.
Mary Tipton was the labor relations officer at CJCF during the relevant time period. She was responsible for reviewing all employee misconduct investigations and for making disciplinary recommendations to the superintendent at CJCF. After reviewing the specific results of the investigation into Mr. Holt's use of force, she recommended to the then superintendent at CJCF, Gary Mohr, that Mr. Holt be terminated from his position. Superintendent Mohr agreed with the recommendation and terminated Mr. Holt's employment effective March 24, 2004, with the approval of Geno Natalucci-Perishetti, the director of ODYS at that time. The order of removal stated:
On or about 01/23/04 you slapped and punched a youth during an intervention and your actions were not an emergency response to the situation. The youth's actions did not rise to a level that necessitated a physical intervention by you.
These actions are a violation of DYS Policy #103.17, General Work Rules, effective 02/01/02, Rule 4.14, EXCESSIVE USE OF FORCE — Use of excessive force toward any individual under the supervision of the department or a member of the general public.
Holt Dep. Exh. J. p. 912.
Mr. Holt subsequently filed a grievance with his union contesting the existence of just cause for his removal. The grievance went to arbitration where it was denied by the arbitrator. Mr. Holt then filed a charge of age discrimination with the Ohio Civil Rights Commission and the EEOC. The EEOC issued a right-to-sue letter on July 19, 2005. Mr. Holt then filed this action. By way of an amended complaint filed after the Court granted defendants' motions to dismiss, Mr. Holt limited his claim to the ADEA claim addressed in this Opinion and Order.
II.
Summary judgment is not a substitute for a trial when facts material to the Court's ultimate resolution of the case are in dispute. It may be rendered only when appropriate evidentiary materials, as described in Fed.R.Civ.P. 56(c), demonstrate the absence of a material factual dispute and the moving party is entitled to judgment as a matter of law. See Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962). The moving party bears the burden of demonstrating that no material facts are in dispute, and the evidence submitted must be viewed in the light most favorable to the nonmoving party. See Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Additionally, the Court must draw all reasonable inferences from that evidence in favor of the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654 (1962). The nonmoving party does have the burden, however, after completion of sufficient discovery, to submit evidence in support of any material element of a claim or defense on which that party would bear the burden of proof at trial, even if the moving party has not submitted evidence to negate the existence of that material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).A plaintiff can establish a claim of age discrimination in violation of the Age Discrimination In Employment Act, 29 U.S.C. §§ 621, et seq., either by introducing direct evidence of an intent to discriminate or by introducing circumstantial evidence that would support an inference of discrimination. See Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997). If a plaintiff introduces direct evidence of discrimination, then the burden shifts to the employer to establish that it would have taken the same action even if it had not been motivated by age discrimination. See Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994).
If a plaintiff introduces circumstantial evidence of discrimination, then the claim is analyzed under the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As such, in order to establish a prima facie case of age discrimination, a plaintiff must show that he was (1) at least 40 years of age at the time of the alleged discrimination; (2) subjected to an adverse employment action; (3) qualified for the position; and (4) replaced by a younger person. See Cooley v. Carmike Cinemas, 25 F.3d 1325, 1329 (6th Cir. 1994).
Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the plaintiff's non-selection. If the employer meets this burden, then the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's reason was not the true reason but merely a pretext for discrimination. See id.
III.
In his deposition taken on June 18, 2007, Mr. Holt refers to various statements in the arbitrator's decision that arguably suggest an age-based animus. These include a comment by Superintendent Mohr that an employee with twenty-six years of experience should set an example of how to diffuse situations without resort to violence; a statement by the arbitrator that Mr. Holt as a long-term employee was clearly aware that his position required the highest public trust and confidence; and the arbitrator's consideration of long-term service as a mitigating factor in Mr. Holt's misconduct. Mr. Holt does not argue that any of these statements constitute direct evidence of age discrimination, and under the criteria set forth in Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003), this Court must conclude that he has failed to introduce any direct evidence of discrimination. Therefore, his claim will be analyzed under the McDonnell-Douglas framework.
The defendants concede that Mr. Holt was at least 40 years of age at the time of the alleged discrimination; that he was subjected to an adverse employment action; and that he was qualified for the position of juvenile corrections officer. They deny, however, that he was replaced by a significantly younger individual. See Grosjean v. First Energy Corp., 349 F.3d 332, 335 (6th Cir. 2003), cert. denied, 541 U.S. 1010 (2004) (in age discrimination cases, fourth element is modified to require replacement not by person outside protected class, but merely by significantly younger person).
Mr. Holt has tendered no evidence as to who, if anyone, replaced him at CJCF and whether any such person was significantly younger than him. Nevertheless, he can still satisfy this requirement by showing that a "comparable non-protected person was treated better." Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992). To fulfill this alternative requisite, a plaintiff must show that for the same or similar conduct he was treated differently than similarly-situated employees who were substantially younger. See id. at 583; Alfrey v. AK Steel Corp., 211 Fed. Appx. 393, 395 (6th Cir. 2006) ("The fourth prong can also be met if `a substantially younger person . . . was treated more favorably than' the plaintiff.") (quoting Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1048 (6th Cir. 1998)).
[T]o be deemed `similarly-situated,' the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.Mitchell, 964 F.2d at 583. All of these factors continue to be relevant considerations in cases, such as this one, where the complaint alleges differential disciplinary action. See Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998); Johnson, 319 F.3d at 867 (in context of pretext analysis). These factors, however, are not inflexible; courts have a duty to make an independent determination as to the relevancy of the plaintiff's employment status and that of the alleged comparable employee. Seay v. Tennessee Valley Authority, 339 F.3d 454, 480 (6th Cir. 2003); Ercegovich, 154 F.3d at 352. The plaintiff must prove only that all relevant aspects of his employment situation are "nearly identical" to those of the alleged comparable employee. See Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994).
In his answer to the defendants' interrogatories and in his deposition testimony, Mr. Holt identified seven employees of ODYS who he believed were substantially younger and who were allegedly treated better than he was despite engaging in conduct at least as egregious as his conduct. In his response to the defendants' motion for summary judgment, however, Mr. Holt attempts to show only that three of those employees were similarly-situated to him. Because Mr. Holt has not introduced any evidence concerning the relevant conduct of the other four employees and the disciplinary actions taken against them, the Court cannot determine whether they are similarly-situated to him. Instead, the Court must focus on the three ODYS employees who are the subject of Mr. Holt's argument: Tanya Serrell, Tommie Woods, and Eric Shannon.
Tanya Serrell was born on October 20, 1964. She was at all times relevant to this case a juvenile corrections officer at Scioto Juvenile Correctional Facility in Delaware County, Ohio. Ms. Serrell was involved in an altercation at SJCF on December 16, 2003, in which she punched a youth in the head. As a result of her actions, she was indicted by the Delaware County grand jury on one count of endangering children, one count of assault, and one count of falsification. After an investigation by SJCF during which Ms. Serrell admitted punching the youth in the head, she was charged with violation of Work Rule 4.14 for excessive use of force. Ms. Serrell ultimately entered into a last chance agreement with ODYS and served a 15-day working suspension in lieu of termination. Under the last chance agreement, she gave up her right to grieve the suspension and acknowledged that any further violation of Work Rule 4.14 would result in her removal.
Tommie Woods was born on July 1, 1971. At all relevant times, he, like Ms. Serrell, was a juvenile corrections officer at SJCF. Mr. Woods was involved in an altercation at SJCF on September 9, 2003, in which he used excessive physical force on a youth. As a result of his actions, he was found to be in violation of Work Rule 4.14 and received a 12-day disciplinary suspension. Unlike Ms. Serrell, Mr. Woods did not agree with the outcome of his suspension.
Eric Shannon was born on August 2, 1968. At all relevant times, he was a juvenile corrections officer at CJCF. On August 16, 2004, he placed a youth in seclusion and strip-searched him without prior authorization and without a second staff person present. He then left the youth in the room without clothes and did not place a seclusion log on the door. In a separate incident on September 21, 2004, Mr. Shannon used unnecessary force on a youth by removing him to the isolation room when the youth did not present any threat to himself, the staff, other youths or the facility. For these incidents, Mr. Shannon was found to be in violation of Work Rule 5.1 for failure to follow policies and procedures. He received a six-day working suspension.
The record demonstrates that Ms. Serrell, Mr. Woods and Mr. Shannon all were substantially younger than Mr. Holt at the time of their respective conduct. In addition, each was employed as a juvenile corrections officer at an ODYS institution. Ms. Serrell and Mr. Woods were both charged with violating Work Rule 4.14 excessive use of force, the same rule violated by Mr. Holt. Other than Mr. Holt, none of these individuals was terminated. These facts are the sole support for Mr. Holt's contention that age was a motivating factor in their differential treatment.
The dissimilarities, however, are more striking. Ms. Serrell and Mr. Woods worked at SJCF, not CJCF, where Mr. Holt was employed. Leroy Payton was the superintendent of SJCF who suspended Ms. Serrell in lieu of termination. At the time Mr. Woods received his disciplinary suspension, John Morgan was the superintendent at SJCF. Although Mr. Shannon worked at the same institution as Mr. Holt, he was disciplined by interim superintendent Robert Pritchard because Gary Mohr had since retired. Thus, none of the four juvenile corrections officers dealt with the same supervisor in the context of their disciplinary proceedings. Mr. Holt points out that as director of ODYS, Geno Natalucci-Perishetti, controlled both SJCF and CJCF, but there is nothing to indicate he did anything more than approve the actions of the various superintendents.
While "the `same supervisor' criterium [sic] has never been read as an inflexible requirement," Seay, 339 F.3d at 479, there are other compelling distinctions as well. Ms. Serrell admitted punching the youth in the head and agreed to a working suspension in conjunction with a last chance agreement, whereas Mr. Holt steadfastly denied slapping and punching the youth. The court of appeals has found individuals who commit the same misconduct not to be similarly situated where one admits her guilt and agrees to punishment short of removal and the other contests the charge at every opportunity. See Driggers v. City of Owensboro, 110 Fed. Appx. 499, 508 (6th Cir. 2004). Moreover, the fact Ms. Serrell was criminally indicted for her misconduct is of minimal importance here. The decision to indict or not indict lies with the county prosecutor. Because SJCF and CJCF are located in different counties, the decision-makers were different, and no reasonable inference can arise from such indictment alone that Ms. Serrell's actions were more serious than Mr. Holt's.
Mr. Shannon violated a work rule different from the one violated by Mr. Holt. Although the description of the misconduct includes a reference to the use of unnecessary force on a youth, there was no charge of excessive force. This distinction alone is enough to preclude Mr. Shannon from being similarly situated to Mr. Holt. See Braithwaite v. Timken Co., 258 F.3d 488, 497 (6th Cir. 2001). Mr. Holt's use of excessive force was a major infraction for which the infraction disciplinary grid called for a minimum punishment of a six-day suspension. Mr. Shannon's conduct, in contrast, could have merited as little as a verbal reprimand.
Lastly, Mr. Holt has not produced sufficient facts to show that Mr. Woods was similarly situated in all relevant respects. Except for the fact that Mr. Woods used inappropriate and unwarranted excessive force on a youth and did not agree with his resulting suspension, Mr. Holt has not presented any admissible evidence as to the nature of Mr. Woods' conduct or the circumstances under which it occurred. Without such distinguishing details, the Court cannot determine whether Mr. Woods is "similarly situated" even construing the record in the light most favorable to Mr. Holt.
IV.
Based on the foregoing, Mr. Holt has not shown that a substantially younger, similarly situated employee was treated more favorably. Thus, he has failed to establish a prima facie case of age discrimination. Accordingly, the defendants' motion for summary judgment (#41) is GRANTED, and this case is DISMISSED WITH PREJUDICE. The Clerk shall enter judgment in favor of the defendants.