SANDRA S. BECKWITH, Senior District Judge.
Gloria Hill taught school in the Cincinnati City School District ("CPS") for thirty years. Following what she alleges was her constructive discharge, she filed this lawsuit alleging claims for age discrimination and retaliation, hostile work environment, and intentional infliction of emotional distress. (Doc. 1) CPS has moved for summary judgment on a variety of grounds (Doc. 26), which Hill opposes. (Doc. 28)
For the following reasons, the Court will grant CPS' motion.
Gloria Hill attended the University of Cincinnati and obtained a B.S. degree sometime in the mid-1970's. She received additional education at Xavier University and the College of Mt. St. Joseph in Cincinnati. She is certified to teach high school, with an endorsement in English and Reading. She began working for CPS in 1984 as a substitute teacher, and became a regular teacher at Dater High School in 1997, teaching English and reading. She remained at Dater until 2012. Hill was a member of the Cincinnati Federation of Teachers ("CFT"), the union representing teachers in the district. Under the collective bargaining agreement between CPS and CFT, teachers are evaluated at several different times, including a comprehensive evaluation performed every five years. (Hill Dep. Ex. 16, CBA of January 11, 2011, Section 210(1)(g-I).) All teachers in the district are subject to annual performance reviews, conducted by the principal or assistant principal of their school. The 2011 CBA states that the parties had entered into a Memorandum of Understanding on November 3, 2010, to review and revise the Teacher Evaluation Standards ("TES"), which were the subject of ongoing discussions and negotiations.
Section 210(1)(j) of the CBA states that when a principal has concerns about an experienced teacher's performance, the principal "shall" refer the teacher to the Peer Review Panel for consideration of whether the teacher should be placed in Intervention. Intervention is part of the Peer Assistance and Evaluation Program first established in the 1985 CBA. The 2011 contract describes the Program as one "intended to assist experienced teachers who exhibit serious deficiencies." (Hill Dep. Ex. 16 at Section 210(2).)
Stephen Sippel became the principal at Dater at the start of the 2009 school year, and Anthony Gaines became the assistant principal at the same time. Prior to Sippel's arrival, Hill had received satisfactory performance reviews. Sometime during that year, Sippel observed Hill's teaching performance and identified weaknesses in her performance in three indicators within Domains 2 and 3. (The documentation of this review is apparently not in the record, but the results are described in Exhibit 15 to Hill's deposition.) The record apparently does not contain Hill's 2010-2011 evaluation. On March 8, 2012, Anthony Gaines conducted her annual observation, which is a classroom visit by the principal or his designee, to assess a teacher's performance in class. Gaines completed a form indicating that Hill's performance in eight indicators of Domains 2 and 3 were either at a "basic" or "unsatisfactory" level. (Hill Dep. Ex. 4) On March 12, Gaines completed an annual observation "Conference Sheet" to document his observations. The end of this form states that Hill "has not acknowledged this observation." (Hill Dep. Ex. 5) Hill did not agree with Gaines' observations, and during a conference between them on March 19, she expressed her disagreement to Gaines. (Hill Dep. Ex. 6) Gaines told Hill that he would be making a second classroom visit in ten days, and if she was not at the "proficient" level at that time she would be referred to the Intervention program. Hill sent an email to a CFT representative, Kendra Phelps, asking Phelps if she could refuse to meet with Gaines again without a union representative being present. Hill told Phelps: "I told [Gaines] that I did not trust him and I would like to know if I can meet with you . . . to discuss this matter." (Hill Dep. Ex. 7)
Gaines returned to Hill's classroom on April 20 for a "formal classroom observation for Intervention Investigation." (Hill Dep. Ex. 8) Gaines rated her skills as "basic" in two out of three indicators in Domain 2, and four out of five indicators in Domain 3. She received "proficient" scores for one indicator in each Domain (2.1, creating "an inclusive and caring environment in which each individual is respected and value;" and 3.2, demonstrating "content knowledge by using content specific instructional strategies.") Gaines attached a "script" of his observations during the approximately 50 minutes he observed Hill's classroom. He also completed an observation conference sheet the same day, including his recommendation that Hill be referred to the Intervention Program. Hill wrote on the form, "I have seen it but don't agree." (Hill Dep. Ex. 9) On April 23, Gaines wrote to the Peer Review Program Manager (Julie Indalecio) to formally recommend Hill for Intervention. (Hill Dep. Ex. 10) Hill wrote a "rebuttal" to Gaines' referral and his observations of her classroom on April 30, 2012. (Hill Dep. Ex. 11) It is unclear if she provided this document to anyone at that time, but her rebuttal states that she disagreed with Gaines' "script" of the classroom, and with his conclusions about her deficiencies.
The Peer Review Panel notified Hill on May 7 that it had assigned James Beirne, the Panel's Consulting Teacher for English and language arts, to gather information, observe Hill's classroom, and recommend to the Panel whether or not Hill should be assigned to the Intervention Program. (Hill Dep. Ex. 12) Hill had not met Beirne before this assignment. On May 10, Hill sent an email to Gaines and her union representative, asking Gaines if he would consider "rescinding my earlier request of intervention. As stated before, I would like to retire in 2013. Please respond in kind ASAP." (Hill Dep. Ex. 13) Gaines did not respond to her email. Beirne proceeded with his investigation by interviewing Gaines and Hill, and observed Hill in three of her classes on May 17 and 18. Beirne prepared a written investigation report and recommendation to the Peer Review Panel that Hill be placed in Intervention. In his report, he explained his observations and concerns about her classroom performance. (Hill Dep. Ex. 15) After considering the report, the Panel voted unanimously to place Hill in the Intervention program for the 2012-2013 school year, and notified Hill of its decision in a memorandum dated May 29, 2012. (Hill Dep. Ex. 14) Hill testified that she did a good job when Gaines and Beirne visited her classroom, and that Beirne was "a stickler on little things . . ., just nitpicking, just trying to find something negative." (Hill Dep. at 36)
Sometime in the summer of 2012, Hill applied for a transfer to another CPS school called "A2E" or "A2S," Alternative to Expulsion/Suspension. CPS students are sent to this school when they are suspended from their regular school for rule or behavior violations. She testified that her transfer request was approved by Sippel and the principal of A2E, but when she arrived at the new school at the start of the year, ". . . Mr. Beirne followed me over to that facility still evaluating me." (
After a visit to Hill's classroom on October 11, 2012, Beirne sent Hill an email stating that "Classroom management is obviously a big issue at A2S/A2E. It is also the major issue that we discussed after my first informal observation. We cannot require it, but I strongly suggest that you attend the Effective Classroom Management course that the district has set up." Hill responded, "Just as I thought you don't understand the complexity of this school. Meaning how it functions. This is not a traditional setting and I don't feel like I need to take a management class without the whole building having to do the same. You come looking for blame. Like I said earlier you are not trying to help me at all. I don't want to speak to you again!" (
Beirne further states that he met monthly with the Peer Review Panel to report on Hill's progress on Intervention, and he prepared two written interim reports in December 2012 and February 2013. On December 14, 2012, Beirne sent Hill the December interim report, and told Hill that he was required to send a copy to her principal. Hill responded by questioning why he sent a copy to the A2E/S principal (Ms. Smith), because "[s]he was not responsible for what you did in placing me in this mess and following me as you are doing. I don't like you as a consulting teacher, I should not be in this mess, win or lose I don't care." (Hill Dep. Ex. 31) Beirne's first interim report cited several areas where Hill's performance met requirements, but a longer list of areas in which deficiencies existed. (
Beirne asked Hill if they could meet on January 24 for a conference following one of his classroom observation visits; Hill responded, "I still do not understand. Also, what is the purpose of your visitations I know that you are aware of my retirement." (
On March 7, 2013, Hill signed a document entitled "Separation from Service Form," stating that she was retiring and electing to take disability leave beginning March 13, 2013 to the end of the school year. (Hill Dep. Ex. 34) Her principal, Ms. Smith, signed the form on March 11, 2013. The Peer Review Panel wrote to Hill on March 22, 2013, to inform her that the Panel had recommended by a vote of 8-0 that her contract be terminated for the 2013-2014 school year, and that she had until March 29 to appeal the decision under the Peer Review Program guidelines. Hill could also file a grievance under the CBA to final, binding arbitration. And CPS argues that Ohio law provided her with the right to challenge her termination as lacking "good and just cause" by seeking a hearing. See Ohio Rev. Code 3319.16. She did not pursue any of these options.
While she was at the A2S/E school, Hill filed an EEOC claim on November 2, 2012, claiming that she was being discriminated against based on her age when she was referred to the Intervention program. (Hill Dep. Ex. 22) She claimed that Sippel had removed or forced to retire at least five other teachers based on their age, and that he discriminated against her by referring her for Intervention. She asserted that the Intervention program adversely altered the terms and conditions of her employment, and that there was no legitimate business reason for it. The EEOC issued a notice of right to sue on June 10, 2013, and Hill timely filed her complaint in this case on September 9, 2013.
In Count One, Hill alleges that placing her in the intervention program was due solely to her age; that it created a hostile work environment; and that she was constructively discharged, all in violation of Ohio Rev. Code 4112.02. Count Two alleges a state law retaliation claim, alleging that CPS retaliated against her based on her age by "assigning another teacher to shadow [Hill's] daily movement in her job performance." (Doc. 1 at 3) Count Three is a common law claim for intentional infliction of emotional distress, alleging that CPS' conduct in placing her in Intervention was willful, malicious, and in reckless disregard for her rights. Count Four alleges age discrimination and hostile work environment, and Count Five alleges retaliation, both under Title VII.
The court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An assertion of a undisputed fact must be supported by citations to particular parts of the record, including depositions, affidavits, admissions, and interrogatory answers. The party opposing a properly supported summary judgment motion "`may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'"
The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts.
The court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
CPS first argues that Hill failed to administratively exhaust her federal retaliation claim, and therefore it must be dismissed. Hill's EEOC charge does not mention retaliation. Both Title VII and the Age Discrimination in Employment Act require that any claim must be filed with the EEOC no later than 300 days after the alleged discriminatory or retaliatory act. 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(B). Hill's opposition memorandum does not dispute this argument. The Court concludes that her federal retaliation claim is clearly time-barred, and will be dismissed on that basis.
CPS also argues that Hill's state law age discrimination and retaliation claims are barred by the applicable Ohio statute of limitations. Ohio Rev. Code 4112.02(N) states that such a claim must be filed within 180 days after the unlawful discriminatory act occurred. Hill's lawsuit was filed on September 9, 2013, and CPS contends that any act prior to March 13, 2013 is time-barred. Hill relies on her allegation that she was constructively discharged in asserting her state law claims, and CPS argues that her voluntary retirement and separation from employment on March 7, 2013 started the 180-day period. CPS cites
Hill argues that she simply "applied" for disability retirement on March 7 and went on medical leave, but CPS kept her in the Intervention program until her formal retirement date of June 1, 2013. The Separation form Hill signed on March 7, 2013 (Hill Dep. Ex. 34) states that she requested "unassigned" status using her accumulated sick leave beginning on March 13, 2013. And in her letter to Beirne dated March 26, 2013, she again stated that she had been "retired since March 13, 2013." (Hill Dep. Ex. 35) She does not dispute the fact that she voluntarily submitted her notice of separation from her employment on March 7, and she acknowledges that she did not return to work after that date. The cases cited above, and other authorities discussed therein, are clear that a plaintiff alleging constructive discharge must bring her claim within the applicable limitations period measured from the date that she resigns or separates from employment. Hill did so on March 7, 2013, and her complaint was filed more than 180 days after that date.
CPS next argues that Hill's state law claims are also barred by Ohio Rev. Code 4117.10, which states that if a collective bargaining agreement provides for final and binding arbitration of grievances, ". . . public employers, employees, and employee organizations are subject solely to that grievance procedure." Hill failed to pursue a grievance under the CBA after she was placed in the Intervention program; and the Peer Review Guidelines and the CBA both provide avenues to challenge any ultimate decision reached by the Panel. Since she failed to pursue her contractual remedies, CPS contends that her claims should be dismissed. CPS cites
Hill responds that this case is inapposite to her situation because it involved reverse race discrimination. She contends that CPS sought to illegally force older Dater teachers into retirement by offering them an incentive bonus, and then "forcing" them into the Intervention program if they chose not to retire. She argues that the adverse employment action was her "unjustified" poor evaluation by Gaines, which resulted in her forced retirement.
The Court cannot discern a meaningful difference between the facts at issue in
However, even assuming that Hill's state law discrimination claims were timely filed and are not barred by O.R.C. 4117.10, the analysis of her state claims would proceed under the same framework as her federal claims, which are timely. See
CPS argues that Hill did not suffer an adverse employment action. The placement of an employee on a performance improvement plan, or subjecting an employee to heightened levels of scrutiny, is not considered to be an adverse action. In order to satisfy this prong, an action must create a
Hill repeatedly contends that CPS (acting through Gaines, Sippel and/or Beirne) wanted to "force" older teachers at Dater to retire by referring them to the Peer Review Panel. She offers hearsay testimony from CFT's Dater building representative, Ms. Wessel, about complaints from other teachers concerning evaluations they received from Gaines or Sippel. Hearsay evidence is not admissible for purposes of opposing summary judgment.
Hill also suggests that her transfer to the A2E school was an adverse action, because the students at that school were disruptive and in some cases violent. Hill does not dispute that she requested the transfer from Dater to A2E, and that the principals of both schools approved her request. The voluntary transfer cannot be considered an adverse "action" taken against her because she was the initiator of that transfer.
Hill also contends that she was constructively discharged, which has been held to be an adverse employment action. To establish a constructive discharge, Hill must show that: (1) CPS deliberately created an intolerable working environment, as would be perceived by a reasonable person; (2) CPS created that environment with the intent of forcing Hill to resign; and (3) Hill actually resigned. The Court should consider both CPS' intent and Hill's objective feelings.
Plaintiff filed an EEOC claim shortly thereafter. A couple of weeks later, his supervisor and coworkers began avoiding him and would not speak to him; the supervisor told other employees to move their tools away from plaintiff's work station; two employees were removed from his department, leaving him the sole employee. After fifteen months of this isolation, plaintiff quit his job and brought a lawsuit alleging discrimination, hostile environment and constructive discharge. On appeal from a jury verdict in favor of plaintiff, the employer argued that the evidence did not support a constructive discharge. The Sixth Circuit disagreed, finding that: "Day after day, week after week of isolation on the job and lack of communication would lead him to believe that he was no longer wanted and would continue to receive the cold shoulder as long as he worked there."
Here, Hill believes that referring her to the Intervention program, or Beirne's consistent attempts to engage her in the consultation process, created an objectively intolerable working environment that forced her to quit, or created an actionable hostile environment. The Court must conclude that nothing in the record suggests that is the case. Beirne's email communications with Hill (which she often rebuffed) included offers of assistance, suggestions for additional training, places to obtain free books for her students, requests that Hill read and respond to his emails, and other suggestions for successful participation in the program. There is nothing in his written communications that suggests hostility, animosity, or age bias. Hill argues that Beirne did not understand the environment of the A2E/S school, and that his consultation was therefore inappropriate and objectively intolerable. Her evident disagreement with Beirne's observations and suggestions do not raise a genuine factual dispute that the Intervention program was so
Hill has also failed to establish a prima facie retaliation claim. She has not shown that she suffered an adverse action, and has no evidence that anyone at CPS knew that she had engaged in protected activity. She believes that she told someone at her union that she had consulted with an attorney sometime in 2012. But there is absolutely no evidence or testimony that anyone at CPS was aware of that. Hill has not identified any other protected activity she engaged in that she believes led to Gaines' evaluation and subsequent referral to the Intervention program. Her retaliation claim fails at the prima facie stage for that reason.
Even if Hill could establish a prima facie claim, CPS argues that she cannot show that CPS' reasons for placing her in the Intervention program are a pretext for age discrimination. Hill claims that older teachers were offered an early retirement buy-out, and those who declined that offer were placed in the Intervention program. The early retirement incentive offer was a benefit specifically negotiated between CPS and the CFT, and was included in the January 2011 CBA. (See Doc. 34, Ex. 2, McDole Declaration.) The ADEA includes a specific safe harbor for such incentive programs. See 29 U.S.C. §623(f)(2)(B)(ii): "It shall not be unlawful for an employer . . . to observe the terms of a bona fide employee benefit plan that is a voluntary early retirement incentive plan consistent with the relevant purpose . . ." of the ADEA. The fact that CPS offered this buy-out to all eligible teachers (including those at Dater) is not evidence of discriminatory conduct. Hill argues that only those who declined the buy-out were subjected to increased levels of scrutiny and placed in the Intervention program. But aside from her own belief that this is the case, she offers no admissible evidence supporting this argument.
Hill also asserts that the Intervention program is designed to result in the termination of older teachers. She relies on Beirne's testimony; he was asked if any of the teachers he worked with in the Program had successfully completed it, and he said no. (Beirne Dep. at 237) Beirne testified that he had personally been assigned three teachers to follow in Intervention (including Hill). Beirne is not the only consulting teacher in the Peer Review program. Beirne states in his declaration that for the three school years from 2010 through 2013, a total of 22 teachers in the CPS system were assigned to the Intervention program by the Peer Review Panel, and 12 of them successfully completed the program and continued with CPS. (Doc. 34, Ex. 1) Hill does not dispute this evidence, which contradicts any assertion that the Intervention program is designed to "get rid" of older teachers.
Hill further relies on the testimony of Carolyn Clayton, another Dater teacher who received a negative evaluation from Gaines after she received an excellent review the previous year. Clayton testified that she believed Gaines was trying to force her to retire, and even asked her at one point if she knew about the early retirement bonus program. (Clayton retired from CPS on June 1, 2013, more than two years after Gaines conducted her February 2011 evaluation.) The Supreme Court has held that there is no per-se rule that testimony from non-party co-workers about alleged discriminatory treatment is inadmissible. The court should consider such evidence under Fed. R. Evid. 401 and 403 to determine its logical relevance, probative value and potential prejudicial effect.
The Court concludes that the record fails to establish a genuine factual dispute about pretext, and that Hill's age discrimination and retaliations claims fail on that basis as well.
Finally, CPS argues that Hill's claim for intentional infliction of emotional distress should be dismissed. This claim is based upon the same events and incidents that support her age discrimination and retaliation claim: the negative performance evaluation, placement in the Intervention program, and Beirne's consulting work while she was on intervention.
In order to establish a claim for intentional infliction of emotional distress under Ohio law, Hill must show: "(1) that the defendant either intended to cause emotional distress or knew or should have known that the actions taken would result in serious emotional distress; (2) that the defendant's conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it would be considered utterly intolerable in a civilized community; (3) that the defendant's actions were the proximate cause of plaintiff's psychic injury; and (4) that the mental distress suffered by plaintiff is serious and of such a nature that no reasonable person could be expected to endure it."
The Court must reject Hill's claim. The Court has already concluded that her discrimination, retaliation and hostile work environment claims lack merit. The facts giving rise to those claims do not amount to conduct that is "beyond all bounds of decency." It is obvious from the record that Hill resented the referral to the Peer Review Panel, the Panel's decision to place her in Intervention, and Beirne's involvement in observing her and offering suggestions and comments. She clearly disliked the Intervention program, and complained when her transfer to another school did not result in terminating her from that program. But all of these actions simply do not rise to the level of extreme and outrageous conduct that might support a claim for intentional infliction of emotional distress. The evaluation process and the Peer Review Panel were negotiated subjects included in the CBA between Hill's union and CPS. The referral of a teacher to that program cannot be labeled as intolerable behavior. The Court finds that CPS is entitled to summary judgment on this claim as well as the rest of Hill's complaint.
For all of the foregoing reasons, the Court grants Defendant's motion for summary judgment (Doc. 26). Plaintiff's complaint and each cause of action alleged therein is dismissed with prejudice.
SO ORDERED.
