Opinion
Case No. 3:02CV7509
October 23, 2003
ORDER
This is an employment discrimination case, brought by a former Toledo teacher, plaintiff David Johnson, against defendant Toledo Board of Education ("the Board"). This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1337. Pending is defendant's motion for summary judgment. For the reasons that follow, the motion will be granted.
Background
Plaintiff David Johnson began working for defendant Board as a substitute teacher in 1992. He became a regular contract teacher at Chase Elementary School in 1994, and retained that position until he resigned effective August, 1999.
For a brief period in 1998, plaintiff served temporarily as an acting Assistant Principal. That service ended with a negative assessment of his performance. Rather than return to teaching, plaintiff took sick leave until April, 1999. He did not comply with the requirements for leave under the Family Medical Leave Act ("FMLA"). Plaintiff returned to his teaching assignment, and completed the end of the 1998-99 school year.
In August, 1999, without informing the defendant, plaintiff began working as an Assistant Principal at a school in Tifton, Georgia. After the beginning of the school year, when plaintiff failed to appear for his teaching assignment in Toledo, he submitted an immediately-effective letter of resignation.
During the ensuing school year, plaintiff was suspended from his administrative position in Georgia. He then applied to return to a teaching position in Toledo, but the defendant did not accept his application. Among the reasons for not accepting plaintiffs application were that it came too late in the school year and plaintiff had not completed the application form. Defendant became aware of the Georgia suspension shortly thereafter.
Beginning in May, 2000, plaintiff applied to the defendant for numerous administrative positions. These included Principal positions at Woodward High School, Start High School, Riverside Elementary School, Garfield Elementary School, and McTigue Junior High School, as well as the position of Director of Curriculum Alignment, Assessment, Instruction and Instructional Technology Strategies. Defendant did not appoint plaintiff to any of these positions, or any of the general teaching positions for which plaintiff later applied in August, 2000.
Plaintiff had also unsuccessfully sought appointment to multiple administrative positions prior to accepting the position in Georgia. He sued the defendant Board in Ohio state court with regard to those unsuccessful applications. In addition, his state court complaint alleged constructive discharge and a violation of the FMLA.
The state court granted summary judgment to the Board. The state court of appeals affirmed that decision. David Johnson v. Toledo Bd. of Educ., Case No. L-0201033 (Lucas Co. Ct. of Appeals, Aug. 2, 2002). Plaintiff has included these already-litigated claims in the instant complaint.
Other than the previously-litigated claims, plaintiff's complaint alleges that the defendant rejected his post-May 2000 applications for employment on the basis of racial or gender discrimination, or retaliation for his previous lawsuit, and that the Board's inquiry into his employment with the Tifton, Georgia school violated his right to privacy. Defendant seeks summary judgment on all claims.
Standard of Review
Summary judgment must be entered "against a party who 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 moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. ClV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R CiV. P. 56(c).
Discussion A. Res Judicata Bars Relitigation of Previous Claims
Federal courts must give a state court judgment the same preclusive effect it would have in the state court. 28 U.S.C. § 1738; see also Heyliger v. State Univ. Cmty. Coll. Sys., 126 F.3d 849, 851-52 (6th Cir. 1997). As to claim preclusion in Ohio under the doctrine of resjudicata, "a valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379, 382 (1995). The judgment will have preclusive effect "as to all claims which were or might have been litigated in the first lawsuit." Rogers v. City of Whitehall, 25 Ohio St.3d 67, 69 (1986). Resjudicata will bar the action or claim even if it is based on a different legal basis, or "would emphasize different elements of the facts." Grava, 73 Ohio St.3d at 382-83 (quoting Restatement (Second) of Judgments § 24, comm. c at 200). As to issue preclusion, a party and its privies are precluded from re-litigating facts or issues previously litigated and decided in a prior suit by a court of competent jurisdiction. Thompson v. Wing, 70 Ohio St.3d 176, 183 (1994).
Plaintiff has already litigated his claims of constructive discharge (August, 1999), violation of the FMLA, and discrimination related to his non-selection for administrative positions prior to November, 1999. A final judgment on the merits of these claims was rendered by the Lucas County Court of Appeals, and was not appealed further. Because that decision would have preclusive effect in the state court, it has preclusive effect here. Plaintiff is barred from relitigating those claims in federal court; defendant's motion for summary judgment shall be granted as to those claims.
B. Racial/Gender Discrimination
Plaintiff claims that the Board discriminated against him based on his race in violation of Title VII, 42 U.S.C. § 2000e. Title VII states that "[i]t shall be unlawful employment practice for an employee . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race. . . ."
Plaintiff also asserts a claim under O.R.C. § 4112.02(A), which is based on Title VII, and make it unlawful for "any employer, because of the race, color, . . . [or] sex . . . of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment." The scope of § 4112.02(A) is identical to that of federal anti-discrimination statutes. Thus, evidence sufficient to support a finding of discrimination under Title VII of the Civil Rights Act of 1964 is necessary before a violation of § 4112.02(A) can be found. Plumbers Steamfitters Comm. v. Ohio Civil Rights Comm'n., 66 Ohio St.2d 192, 196 (1981).
To establish a prima facie case of discrimination under Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)), the plaintiff must prove: 1) he is a member of a protected class; (2) he applied and was qualified for the job/promotion for which he applied; (3) he was considered for and denied the job/promotion; and (4) other employees of similar qualifications who were not members of the protected class received the job/promotion. See, e.g., Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603, 614 (6th Cir. 2003).
Where the plaintiff does not have direct evidence of discrimination, courts use a burden-shifting approach to determine whether the plaintiff can established a claim of discrimination. The Supreme Court explained in Burdine:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.450 U.S. at 252-53 (1981) (citing McDonnell Douglas Corp., supra, 411 U.S. at 802, 804 (1973).
I assume without deciding, for purposes of this analysis, that plaintiff can establish a prima facie case of discrimination regarding his non-selection for the positions (both administrative and teaching) for which he applied post-May, 2000.
Defendant has proffered a legitimate, non-discriminatory reason for plaintiff s non-selection for the positions for which he applied. As to the administrative positions, Defendant has shown that each candidate selected for an administrative position had successful administrative experience. Plaintiff did not-his short stint in an administrative position in Toledo ended in a negative evaluation, and his administrative position in Tifton, Georgia ended in his suspension. I find that defendant has carried its burden of showing a legitimate, non-discriminatory reason regarding its selection of other candidates for the administrative positions for which plaintiff applied.
As to the teaching positions plaintiff sought, defendant has proffered legitimate non-discriminatory reasons why plaintiff was not re-hired. First, he never completed a full application for any teaching position in August, 2000, but merely sent a letter stating his interest. Second, Mr. Lovett, the person in charge of reviewing applications for teaching positions, was aware of plaintiff s previous disciplinary problem, which had included: failure to resign timely; failure to report for work on the first teacher workday; failure to provide FMLA verification and the disciplinary problems related to that that incident; and other incidents of plaintiff s misconduct Defendant was, accordingly, disinclined to consider re-hiring plaintiff in light of these experiences. Defendant has carried its burden of showing legitimate, non-discriminatory reasons regarding its non-selection of plaintiff for the teaching positions for which he applied.
In the face of these legitimate, non-discriminatory reasons for his non-selection for these positions, the burden shifts back to plaintiff to show that these reasons did not in fact motivate the defendant, and that defendant offers them as a pretext to conceal its discriminatory animus. McDonnell Douglas, 411 U.S. at 807. Plaintiff has failed to carry his burden. Plaintiff has failed to explain why this Court cannot consider his failure to administrate successfully and his history of disciplinary conflicts as legitimate concerns for the Board when it was faced with the possibility of re-hiring him. Plaintiff's unsupported suspicion that discrimination is to blame is insufficient to carry his burden. Plaintiff has offered no reason, based in his evidence or otherwise, to show that these proffered explanations are pretextual for discrimination. For this reason, defendant is entitled to summary judgment as to the discrimination claims.
C. Retaliation
Ohio courts rely on federal law when deciding retaliation claims. Thus, plaintiffs burden for his federal and state retaliation claims is the same. In order to succeed on his retaliation claims, plaintiff must establish: 1) he engaged in an activity protected by Title VII; 2) this exercise of his protected civil rights was known to defendant; 3) defendant thereafter took an employment action adverse to the plaintiff; and 4) there was a causal connection between the protected activity and the adverse employment action. See Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990) (citing Wrenn v. Gould, 808 F.2d 493 (6th Cir. 1987).
While "proximity in time between protected activity and adverse employment action may give rise to an inference of causation," Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987), the mere fact that an adverse employment action occurs subsequent to the protected activity does not, standing alone, support a finding of retaliation. See Cooper v. City of N. Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986). Consistent with the McDonnell-Douglas analytical method, once a plaintiff makes out a prima facie case, the employer must articulate a legitimate non-retaliatory reason for the adverse action, which articulation will shift the burden of production back onto the plaintiff to show that the articulated reason is merely pretext for retaliation. See Thatcher v. Goodwill Indus., Inc., 117 Ohio App.3d 525, 690 N.E.2d 1320, 1327 (1997).
Plaintiff has failed to point to any evidence whatsoever in the record in support of his retaliation claim. Among other things, plaintiff has failed to establish that any of the decision-makers knew of plaintiff s litigation when he was applying for the administrative positions in May, 2000 and thereafter. Further, plaintiff has failed to establish any causal connection between any such protected activity and his non-selection for the administrative/teaching positions.
Even if plaintiff could establish a prima facie case, defendant has offered legitimate, non-discriminatory reasons why plaintiff was not given any position for which he applied, and plaintiff has failed to show pretext for retaliation. In short, I find that plaintiff has not established a retaliation claim. Defendant is entitled to summary judgment on the federal and state retaliation claims.
D. Invasion of Privacy
To establish a claim for invasion of privacy in Ohio, the plaintiff must to show a wrongful intrusion into his private activities in a manner that outrages or causes mental suffering, shame, or humiliation to a person of ordinary sensibilities. Browningv. Ohio State Hwy. Patrol, 151 Ohio App.3d 798, 814(2003) (citing Sustin v. Fee, 69 Ohio St.2d 143, 145 (1982)). The intrusion must be "highly offensive" to a reasonable person. Id.
I find that plaintiff cannot establish an invasion of privacy claim as a matter of law. A person of ordinary sensibilities would not be outraged, shamed, or humiliated by a prospective employer seeking information from a past employer regarding job performance. See, e.g., Kureczka v. Freedom of Information Comm'n, 1992 WL 361794, * 6 (Conn.Super.Ct., Dec. 1, 1992) (applicant has no valid concern regarding prospective employer seeking information from former employer). Furthermore, there was no "wrongful intrusion" into "private activities." Mr. Johnson's employment history in an administrative position with another school district was highly relevant to establishing whether he was qualified for an administrative position with defendant. As such, it was clearly not "wrongful," and plaintiff cannot hope to establish that his public employment in Tifton, Georgia was somehow a "private activity." This claim fails as a matter of law; I will therefore grant defendant's motion for summary judgment as to this claim.
Conclusion
In light of the foregoing, it is
ORDERED THAT defendant's motion for summary judgment be, and hereby is granted.
So ordered.