The opinion of the court was delivered by: Magistrate Judge King
This is an employment action in which Brenda Faye Hinton ("plaintiff") alleges racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 ("Title VII"), 42 U.S.C. § 1983 ("Section 1983") and 42 U.S.C. § 1981 ("Section 1981") and she also alleges breach of contract in violation of Ohio law. With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on Defendants' Motion for Summary Judgment. Doc. No. 45. For the reasons that follow, defendants' motion is GRANTED.
Plaintiff is an African-American female who began work on February 28, 2000, as a full-time math teacher for the Ohio Department of Rehabilitation and Correction ("DRC") at the Madison Correctional Institution ("MaCI"). Plaintiff's Deposition*fn1 ("Pl. Dep.")at 15-17; Second Amended Complaint ("Complaint") ¶ 7. At the time, defendant Alan Lazaroff was the warden of MaCI, defendant Anne Fornal was the principal of the MaCI school and defendant John Row was an officer in labor relations at MaCI. Complaint ¶¶ 4-6. Defendant Elizabeth C. Murch is identified as the Bureau EEO Chief for the DRC. Complaint, §27. Plaintiff's immediate supervisor was the assistant principal for MaCI, Rosaire Ifedi, an African American. Pl. Dep. at 26-27; Complaint ¶ 10.
Plaintiff's position as a math teacher required her to spend a certain amount of time in a probationary period. Pl. Dep. at 90; Ohio Revised Code ("O.R.C.") § 124.37(C). In August of 2000, assistant principal Ifedi performed a mid-probationary review of plaintiff. Complaint ¶¶ 9-12; Pl. Dep. at 84-85 and Exhibit 12 attached thereto. Ms. Ifedi rated plaintiff as having met expectations for all areas of review and commented: "Ms. Hinton is a great addition to our education dept." Complaint, Exhibit A attached thereto.
In November 2000, plaintiff's performance was reviewed again, as required during her probationary period, by defendant principal Anne Fornal. Complaint ¶ 14 and Exhibit B attached thereto. Defendant Fornal rated plaintiff as falling below expectations in each of the areas in which she had been previously reviewed. Id. ¶ 17; Pl. Dep. 86-87 and Exhibit 13 attached thereto. In this second review, defendant Fornal noted several times that plaintiff's temporary teaching certificate had expired on June 30, 2000, and that plaintiff had not taken steps to restore her certification. Id. Defendant Fornal recommended that plaintiff's employment be terminated. Pl. Dep. at 66-67, 99 and Exhibits 7, 13 attached thereto. On November 14, 2000, plaintiff was terminated. Pl. Dep. at 100 and Exhibit 14 attached thereto; Complaint ¶21.
On December 5, 2000, plaintiff filed a charge with the Ohio Civil Rights Commission ("OCRC") and the Equal Employment Opportunity Commission ("EEOC") alleging that DRC terminated her employment because of her race. Complaint ¶ 25 and Exhibit D attached thereto.
Plaintiff's charge, in relevant part stated:
On November 14, 2000, Alan Lazaroff, White, Warden, informed me that I was being terminated because I was unable to make the necessary adjustments for the position and because I lacked certification to teach. I believe I was terminated due to considerations of my race, Black. . . . Id.
Plaintiff and DRC agreed to settle the charge, and the terms of the agreement were memorialized in a "Negotiated Settlement Agreement" ("NSA"). Complaint ¶¶ 26, 27. The terms of the NSA required DRC to "expunge [plaintiff's] termination for a resignation and provide a neutral employment reference to potential employers upon request." Complaint, Exhibit E attached thereto. In return, plaintiff agreed "not to institute a lawsuit based on [the December 5, 2000, OCRC and EEOC charges]" and the OCRC and the EEOC agreed not to process the charge further. Id.
On December 28, 2001, the EEOC sent a letter to the parties informing them of its determination that the charge had been successfully settled. Pl. Dep. at 147-48 and Exhibit 19 attached thereto.
In February 2002, plaintiff applied for a teaching job with the Ohio Department of Youth Services (DYS) at the Circleville Juvenile Correctional Facility. Complaint ¶ 29. DYS requested a reference from DRC pertaining to plaintiff's employment at MaCI. Pl. Dep. at 157-58. Clarissa Harris, a personnel officer in the Human Resources Department at MaCI, completed and signed the reference form, indicating "probationary removal, failed to obtain teacher certification." Deposition of Clarissa Harris ("Harris Dep.") at 36-39 and Exhibit 3 attached thereto. Plaintiff was not hired by DYS. Pl. Dep. at 167.
On July 1, 2002, plaintiff filed a second charge with the OCRC and EEOC, alleging retaliation based on DRC's failure to change plaintiff's personnel file to indicate that she resigned and that she was to be given a neutral employment reference. Pl. Dep. at 71-73 and Exhibit 23 attached thereto. On August 18, 2003, plaintiff received notice of dismissal of the charge and informing plaintiff of her right to sue. Id. and Exhibit 25 attached thereto.
On September 26, 2003, plaintiff instituted this lawsuit. On January 20, 2006, defendants filed Defendants' Motion for Summary Judgment, Doc. No. 45, and on February 10, 2006, plaintiff filed Plaintiff's Response In Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's Memorandum Contra"), Doc. No. 47.
The standard for summary judgment is well established. This standard is found in Fed. R. Civ. P. 56, which provides in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed. R. Civ. P. 56(c). Pursuant to Rule 56(c), summary judgment is appropriate if "there is no genuine issue as to any material fact . . . ." In making this determination, the evidence must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Summary judgment will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
However, summary judgment is appropriate if the opposing party 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 mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 251.
The party moving for summary judgment 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. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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. Civ. P. 56(e)). "Once the moving party has proved that no material facts exist, the non-moving party must do more than raise a metaphysical or conjectural doubt about issues requiring ...