Opinion
Case No. 3:00CV7648.
January 3, 2005
AMENDED ORDER
This is a suit by a former employee of the defendant Northwest CommunityCorrections Center Judicial Corrections Board (NWCC) and certain of its employees. Plaintiff claims that she was:1) discriminated against on the basis of race and gender by being paid less than a white male for doing the same work; 2) terminated in retaliation for her inquires and complaints about the alleged race- and gender-based pay differential; 3) denied a state-law right to a due process hearing before her termination; 4) not granted the benefit of keeping her job ifher performance was satisfactory; and 5) deprived of her employment-related rights inviolationofOhio public policy.
Pending is the defendants' motionfor summaryjudgment. For the reasons that follow, the motion shall be granted.
Background
NWCC hired plaintiff Lena McClain as a Resident Specialist Coordinator on August 2, 1999. She began working for NWCC on August 19, 1999, at a salary of $25,000. The letter informing her of the appointment stated that she would serve a probationary period of 120 days. She also claims that, at one point during her employment, she learned that "as long as you do you job, you will have your job."
Two other Resident Specialist Coordinators were hired at about the same time as the plaintiff; one of these was DanMcGee. His starting salarywas $27,000. Plaintiff learned about the $2,000 difference between her salary and Mr. McGee's salary. She concluded that the differential was due to race and gender, and she was being discriminated against on the basis of her race and sex.
When plaintiff asked defendant Pam Gunter, the Director of Operations at NWCC about the pay differential, Ms. Gunter became upset withthe inquiryand deniedthattherewas any suchdifferential. According to an affidavit by James Wichtman, NWCC Executive Director, the Board paid McGee the extra $2,000 because he had prior experience with a community-based correctional facility (CBCF) and he was assigned computer-related tasks not required of plaintiff or the Resident Specialist Coordinators. Plaintiff did not have CBCF experience. Although not told about McGee's computer assignment, plaintiff learned that he did, infact, have prior CBCF experience.
The relationship betweenthe plaintiffand Ms. Gunter, whichinitially had been cordial, became markedly less so after plaintiff learned and enquired about the pay differential between her and McGee.
Plaintiff has submitted an affidavit from a former co-worker who states, inter alia, that Gunter was "out to get" the plaintiff after she inquired about the pay differential. While the affiant's statements about what he observed are admissible, his opinion about what may have been on Ms. Gunter's mind is not, absent some specific statement or conduct by her clearly manifesting such intent on her part.
In any event, the pay differential was short lived. McGee left for other employment on November 19, 1999.
The Center had hired another Resident Specialist Coordinator, a white male, whose salary was, like plaintiff's, $25,000. After he left in September, 1999, two more white males were hired at the $25,000 salary.
On November 9, 1999, the Center promoted plaintiff to the position of Senior Resident Specialist Coordinator, and increased her salary by $2,000. Although this newly-created position was abolished three weeks later, plaintiff continued to receive the additional salary for the balance of her employment with the Center. Thus, from November 9th on, she was being paid more than the two white males who were her co-Resident Specialist Coordinators.
NWCC useda "Therapeutic Community" philosophy. Aspects of this policywere used instaffmeetings as well as whendealing and working with inmates. Thus, employees were encouraged during staff meetings to express openly how theyfelt. As time passed, complaints arose about plaintiff's attitude and work performance
On December 13, 1999, plaintiff participated in a "hats off" meeting; this was a tool used in the therapeutic community practice to achieve open communication among staff members. Other staff members stated that plaintiff was distant with them, had a problem with communication, used "get back" behavior, and took credit for work done by others. Plaintiff acknowledges that some of the complaints about her communication skills were justified.
After the "hats off" session, plaintiff's supervisor asked her to "acknowledge" the session in writing; she refused to do so. She likewise refused to "commit to NWCC staff" to improve her specific behaviors. A probationary white male employee who was similarly — and, indeed, more extensively — counseled complied with requests that he alter his behavior.
On December 16th, three days after the "hats off" session, plaintiff was giventhe choice of resigning or being terminated. She asked for and received time to consult with a lawyer. The next day, she told the administration that she did not want to resign. She was fired.
Wichtman informed plaintiff in a letter that she was being terminated because she was not "a good fit" and had problems working withother staff members. At the time ofher termination, plaintiff had not completed her 120 day probationary period.
NWCC had adopted employment policies and procedures, pursuant to which all administrative employees, including probationary employees such as the plaintiff, were entitled to notice and a hearing prior to termination. The Board adopted those policies pursuant to an Ohio Administrative Regulation, O.A.C. § 5120:1-14-03(P), which provides:
Persons hired to staff community-based correctional facilities and programs shall be unclassified employees of judicial corrections boards or contract providers. Each judicial corrections board shall develop and adopt personnelpolicies and procedures for hiring, promoting, demoting, suspending, and removing its employees.
In response to a question certified by this court, the Ohio Supreme Court held that the plaintiff, though a probationaryemployee, had a right under that regulation to procedural due process before being terminated. McClain v. Northwest Community Corr. Ctr., Judicial Corr. Bd., 95 Ohio St.3d 484 (2002). This court subsequently held that the "hats off" sessionwas not the equivalent of the due process hearing mandated by the Ohio Supreme Court. McClain v. Northwest Community Corrections Center, 268 F.Supp.2d 941, 943 (N.D. Ohio 2003).
Plaintiff claims that: 1) the pay differential between her and McGee was based onrace and gender; 2) her termination was in retaliation for her inquiries and complaints about the allegedly race- and gender-based pay differential; 3) she is entitled to damages for the failure to comply with her state-law right to due process prior to termination; 4) a promise of continued employment, as embodied in the statement, "as long as you do you job, you will have your job," was breached; and 5) her treatment by NWCC contravened Ohio public policy.
Discussion A. Pay Differential
In response to plaintiff's claim that McGee's higher salary was based on considerations of race and gender, defendant contends that the differentialreflected his greater qualifications and more extensive job duties. In support of her contention that this explanation is pretextual, plaintiff points out that Gunter first denied that there was a differential, and the reference to computer work is post hoc.
Plaintiff acknowledges that McGee had CBCF experience that she did not have; she argues that other employees, hired as Resident Specialists, had similar experience, but did not have McGee's salary.
Plaintiff's contentions about the pretextualnature of the defendants' explanation for the paydifferential are insufficient to carry her case to the jury. She does not dispute that McGee, in fact, had additional duties. Likewise, she does notdisputethe defendants' contention that the job of Resident Specialist Coordinator, which plaintiff and McGee had, differed from that of Resident Specialist.
Moreover, for most of the time that plaintiff worked for the Board, she waspaid morethat the two white males who, like her, did not have CBCF experience, and who, like her, did nothave additionaljob duties. These are appropriate benchmarks when considering whether the defendants' explanationis pretextual. Cf. Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992) (describing components of being "similarly situated" to other employees).
I conclude, accordingly, that the defendants are entitled to summary judgment on plaintiff's paydifferential discrimination claim.
B. Retaliation
In response to plaintiff's claim that her termination was in retaliation for her inquires and complaints about the pay differentialbetween her and McGee and her allegations that suchdifferentialwas race and gender based, the defendants state that theyfired plaintiff because she failed to maintain effective working relationships with others and was unable or unwilling to implement the Center's core treatment/personal relationship philosophy and policies.
In response, plaintiff argues that Gunter, who could be found to have played a determinative role in the decision to fire the plaintiff, was biased against her as a result of her complaints about the pay differential. But a showing of bias on Gunter's part, even if made by the plaintiff, does not suffice to get past the explanation provided by the defendants. Plaintiff does not contend that she was, contrary to the defendants' contentions, willing and able to implement the Center's treatment philosophy. Nor does she deny that her personal relations with her co-workers were strained.
Plaintiff has not produced evidence inresponse to the defendants' articulation of their reasons for their decisionto terminate her that would allowa reasonable juryto conclude that her discharge was in retaliationfor protected conduct and not due to her inadequacies in the performance of her job. Disagreement with a defendant's legitimate, articulated reasons without substantiation for that disagreement is not sufficient to overcome a motion for summary judgment. Mitchell, supra, 964 F.2d at 585 ("Courts have repeatedly held that the plaintiff's denialof the defendant's articulated legitimate reason without producing substantiation for the denial is insufficient for a race discrimination claim to withstand a motion for summary judgment.").
As I have stated elsewhere, to show that an employer's proffered reasons for discharging a plaintiff were pretextual, the plaintiff must show that the employer "was more likely than not motivated by a discriminatory purpose or that [the employer's] proffered explanation is unworthy of belief." Fitzgerald v. Roadway Exp., Inc., 2003 WL 22436123, *6 (N.D.Ohio Oct 10, 2003).
Here, the plaintiff has shown, at most, that Gunter was displeased with her complaints about the pay differential. She has not shown that that displeasure was based on plaintiff's contention that she was being subjected to unlawful discrimination, or that Gunter's involvement in the decision to fire the plaintiff was a retaliatory response to plaintiff's contentions that she was being paid less due to her race and gender. While plaintiff need not produce direct evidence of suchmotive, Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003), she must produce some evidence to contradict the defendants' explanationthat her poor performance led to her losing her job. Claiming that the explanation is not the true reason is not, without more, enough. Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2000).
C. Due Process Claim for Damages
Plaintiff claims that, her right to a state-law due procedural due process, as defined bythe Ohio Supreme Court in McClain, supra, having been denied, she is entitled, at least, to nominal damages for suchdenial, and, as well, damages for resulting emotional distress.
Plaintiff cannot assert a claim for these damages under § 1983, because her right to due process originates in state, not federal law. See McClain v. NorthWest Community Corrections Center, 323 F.Supp.2d 834, 839 (N.D.Ohio 2004). As a probationary employee, she had no property interest entitled to the protection of procedural due process under the federal Constitution. Id.
Plaintiff argues, nonetheless, that federal cases awarding damages under § 1983 for violations of procedural due process in the employment context should be applicable by analogy.
I disagree: plaintiff's argument overlooks the fact that her claim is grounded in policy adopted pursuant to a regulation, O.A.C. § 5120:1-14-03(P), which, in turn, was adopted pursuant to the authority of O.R.C. § 5120.111. Before plaintiff can prevail on a claim for damages, she must show that she has a right to assert a private cause of action under the regulation and statute.
Ohio courts apply the standard enunciated in Cort v. Ash, 422 U.S. 66 (1975), to determine whether a plaintiff can maintain a private cause of action for violation of an administrative regulation. See, e.g., Strack v. Westfield Companies, 33 Ohio App.3d 336, 337 (1986). In Cort the United States Supreme Court stated:
In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," . . . — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . And finally, is the cause of actionone traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?422 U.S. at 78, 95.
The fourth prong of the Cort test only applies to federal courts in diversity cases and thus is inapplicable. Strack, supra, 33 Ohio App.3d at 337.
Plaintiff is a member of the class for whom this regulation was adopted: as a person "hired to staff community-based correctional facilities," the plaintiff would benefit from adoption of "personnel policies and procedures for hiring, promoting, demoting, suspending, and removing" the employees of such facilities.
There is, however, nothing in the regulation or the statute pursuant to which it was adopted, indicative of legislative intent to create a private right of action in favor of employees whose rights under policies and procedures adopted pursuant to the regulation were violated.
Finally, I conclude that it would not be "consistent withthe underlying purposes of the legislative scheme to imply sucha remedyfor the plaintiff."422 U.S. at 95. The statute authorizes CommunityCorrections Boards to adopt rules, inter alia, "that serve as criteria for the operation" ofsuchfacilities. O.R.C. § 5120.111(A). The underlying scheme of the generic grant of rule-making authorityto suchBoards is to allowsuchBoards to adopt and implement rules, regulations, and policies that facilitate the orderly operation of such organizations. The scheme does not contemplate extending rights to probationaryemployees that are not found elsewhere in Ohio law, and to do so would be inconsistent with the purposes § 5120.111(A).
I conclude, accordingly, that plaintiff cannot assert a private cause of action based on a violation of a policy adopted by the defendants pursuant to an administrative regulation that, in turn, was adopted in accordance with underlying statute.
D. Breach of Contract
Plaintiff claims that a statement attributed to the defendants to its employees, "as long as you do your job, youwillhave your job," abrogated her probationarystatus, and, in effect, gave her tenure absent cause for her discharge. I disagree: if anything, given plaintiff's probationary status, this statement simply assured the plaintiff that, if she successfully completed her probationary status, she would have the job protection enjoyed by all who had done likewise.
E. Public Policy Claim
Finding no violation of law, and that the defendants are otherwise entitled to summary judgment on plaintiff's other claims, I conclude that there is no merit to her claim based on alleged violations of Ohio public policy.The elements of the tort of wrongful discharge in violation of public policy are:
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 (the clarity element).
2. That dismissing employees under circumstances like those involved in the [appellant's] dismissal would jeopardize the public policy (the jeopardy element).
3. The [appellant's] dismissal was motivated by conduct related to the public policy (the causation element).
4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).Painter v. Graley, 70 Ohio St.3d 377, 384 (1994) (quoting H. Perritt, The Future of Wrongful Dismissal Claims: Where Does Employer Self Interest Lie?, 58 U. Cin. L. Rev. 397, 398-99 (1989)).
Plaintiff has not shown that there is a clear public policy manifest in federal or Ohio law that was jeopardized by her termination before the end of her probationary period on the basis of inadequate job performance. Nor has she shown that any conduct on her part that was related to any such public policy motivated the defendants' decisionto pay her less than McGee, terminate her, or to so without giving her more procedural due process. Finally, I conclude that the undisputed facts about the inadequacies in plaintiff's performance gave the defendants an overriding and legitimate business justification for their actions.
Conclusion
In light of the foregoing, it is
ORDERED THAT
1. Defendants' motion for summary judgment be, and the same hereby is granted; and
2. Plaintiff's motion to strike and for leave to file a surreply be, and the same hereby is overruled.
So ordered.