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Weems v. City of Columbus

September 13, 2006

MELISSA O. WEEMS, PLAINTIFF,
v.
CITY OF COLUMBUS, OHIO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James L. Graham United States District Judge

OPINION AND ORDER

This is an employment discrimination action filed on January 26, 2005, by plaintiff Melissa O. Weems against the City of Columbus, Ohio ("the City") and Raymond K. Hamilton. Plaintiff, an African-American female, asserts claims of race and sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and 42 U.S.C. §1983. Plaintiff is an employee of the Columbus Department of Public Safety, Division of Police, and during the relevant time period, Sergeant Hamilton was her immediate supervisor. According to the complaint, Sergeant Hamilton is named as a defendant in his official and individual capacities.

Plaintiff alleges that since May of 2000, she has been an police officer employed in the Operations Unit of the Advanced Training Bureau, which is responsible for teaching police officers in four phases throughout the year. Complaint, ¶¶ 9-10. She alleges that she was treated differently compared to similarly situated male Caucasian officers because she was not asked to participate in Phase III training which was announced on July 25, 2002. Complaint, ¶¶ 14-15. She further alleges that on March 31, 2003, she was given the assignment of developing a radio training program which she characterized as clerical work, that other officers were given substantive assignments relevant to training, and that she was the only officer given a specific and short deadline. Complaint, ¶¶ 17-22.

Plaintiff further alleges that on May 19, 2003, a request was made by Division Commander Lieutenant Bowling to identify acceptable candidates for DTU instructors, and that defendant Hamilton responded that plaintiff "does not have the needed qualities to serve, and has not expressed any desire to participate." Complaint, ¶ 23. Plaintiff alleged that she was better qualified than her male Caucasian counterparts due to her previous military training, and that she was never asked if she would be interested in participating. Complaint, ¶¶24-25.

Plaintiff further alleges that she was not given any responsibility for any part of the Phase III training which began on July 1, 2003. Complaint, ¶ 26. She alleges that on February 25, 2004, defendant Hamilton sent an e-mail to every officer but her regarding preparation for training, and that while others were working on substantive assignments, she was asked to do a clerical project. Complaint, ¶¶ 31-32. Plaintiff claims that her requests for additional training were denied while Caucasian male co-workers were approved to attend courses in New Mexico and Houston. Complaint, ¶ 33.

Plaintiff contends that on October 16, 2003, she filed an EEO complaint with Melvin Richardson of the City's EEO Office about co-workers allegedly isolating her and sending racially insensitive e-mails. Complaint, ¶¶34-35. As an example, plaintiff complained that a co-worker would "pass gas" near her desk. Complaint, ¶ 36.

Plaintiff further alleges that on October 21, 2003, she informed defendant Hamilton that she had filed an EEO complaint, and that he became angry and threatened her, and gave her three unreasonable work assignments. Complaint, ¶¶ 37-38. Plaintiff later filed a formal EEO complaint with the Ohio Civil Rights Commission. Complaint, ¶ 42. On October 25, 2004, the EEOC issued a right to sue letter on plaintiff's EEO charge. On October 20, 2004, defendant Hamilton filed an action against plaintiff in the Common Pleas Court of Franklin County, Ohio, asserting claims for defamation and infliction of emotional distress. That action is still pending.

In Count One of the complaint, plaintiff alleges that she was exposed to a hostile work environment and that she was subjected to continuous, severe, pervasive and abusive harassment by defendant Hamilton. In Count Two of the complaint, plaintiff alleges that she was treated differently than similarly situated male Caucasian co-workers on the basis of her race. In Count Three of the complaint, plaintiff alleges that she was treated differently on the basis of her sex. In Count Four of the complaint, plaintiff asserts a claim of retaliation for filing her EEO complaints. In Count Five, plaintiff asserts a claim of intentional infliction of severe emotional distress under Ohio law.

This matter is before the court on the defendants' motions for summary judgment. The procedure for granting summary judgment is found in Fed. R. Civ. P. 56(c), which provides:

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 judgment as a matter of law.

The evidence must be viewed in the light most favorable to the nonmoving 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 nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).

The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex and Matsushita effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J. C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479. In addition, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion.

Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.

In opposition to defendants' motions for summary judgment, plaintiff has submitted unauthenticated documents and an affidavit which is not notarized and which contains a typed signature. Defendants object to this evidence and argue that it cannot be considered. Defendants also argue that plaintiff's affidavit includes inadmissible hearsay and conclusory statements which are insufficient to oppose summary judgment.

It is well settled that only admissible evidence may be considered in ruling on a motion for summary judgment. Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994). Hearsay evidence may not be considered on a motion for summary judgment. Jacklyn v. Schering-Plough Healthcare Products Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999). A party opposing a motion for summary judgment cannot use inadmissible evidence such as hearsay or evidence not based on personal knowledge to create a genuine issue of material fact. Sperle v. Michigan Department of Corrections, 297 F.3d 483, 495 (6th Cir. 2002); Weberg v. Franks, 229 F.3d 514, 526 N. 13 (6th Cir. 2000). Non-specific, conclusory statements will not overcome a properly supported motion for summary judgment. Hunter v. Trussel, No 2:03-cv-972, 2006 WL 1209374 at *7 (S.D.Ohio May 2, 2006). An affidavit which contains "nothing more than rumors, conclusory allegations and subjective beliefs ... [is] wholly insufficient to establish a claim as a matter of law." Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992).

An unsworn or unsigned affidavit cannot be used to oppose a motion for summary judgment. Nassif Insurance Agency, Inc. v. Civic Property and Casualty Co., No. 03-2618, 2005 WL 712578 at *3 (6th Cir. March 30, 2005); Pollock v. Pollock, 154 F.3d 601, 612 n. 20 (6th Cir. 1998). Although an unsworn affidavit may qualify as an unsworn declaration under 28 U.S.C. §1746, such affidavits must be signed, in writing, and dated, and must verify that its content is "true under penalty of perjury." 28 U.S.C. §1746; Pollock, 154 F.3d at 612 n. 20. Under the local rules of this court, affidavits which are not notarized or which contain an electronic signature instead of the actual signature of the affiant are not properly signed, and therefore are not proper evidence under Rule 56. See Watson v. City of Mason, No. C1-04-283, 2005 WL 3018690 at *9-10 (S.D.Ohio Nov. 9, 2005); S.D. Ohio Local Rule 1.1(e); Electronic Filing Policies and Procedures Manual, Rule C, Signatures.

To be admissible in summary judgment proceedings, documents must be authenticated by and attached to an affidavit. Steele v. Jennings, No. 2:04-cv-189, 2005 WL 2124152 at *3 (S.D.Ohio Aug. 31, 2005); Williams v. United Dairy, Inc., No. 2:03-cv-868, 2005 WL 1077596 at *5 (S.D.Ohio April 18, 2005). "The failure to authenticate a document properly precludes its consideration on a motion for summary judgment." Robinson v. Bodoff, 355 F.Supp.2d 578, 582 (D.Mass. 2005). See also Lomax v. Sears, Roebuck & Co., 2000 WL 1888715 at *5 (6th Cir. 2000).

In this case, plaintiff has attached documents to her memoranda contra which have not been authenticated in any way. She has also submitted an affidavit which bears only typed electronic signature. Although the affidavit states that plaintiff was "duly sworn upon oath," it is not notarized. It is not dated or signed with a written signature, and does not indicate that the statements are "true under penalty of perjury." Therefore, it does not qualify as an unsworn declaration. The affidavit also includes hearsay and statements which are conclusory or not shown to be based on personal knowledge. Plaintiff's exhibits and affidavit are not competent evidence for purposes of summary judgment, and defendants' objections to this evidence are well taken. However, even if that evidence is considered along with the other evidence in the record, it is insufficient to withstand summary judgment in this case.

I. Plaintiff's Claims

In Counts One through Four of plaintiff's complaint, plaintiff alleges that the conduct at issue violated Title VII. In ¶ 1 of the complaint, she also identifies 42 U.S.C. § 1983 as a basis for her action, asserting that constitutional rights protected by the Fourteenth Amendment were violated. The complaint does not clearly state if she is pursuing claims under Title VII and §1983 against both the City and defendant Hamilton. In the event that the complaint is construed as alleging both Title VII and §1983 claims against the City, the City has moved for summary judgment on the §1983 claims.

A municipality may only be held liable for civil rights violations if the municipality itself causes the constitutional deprivation. Monell v. Department of Social Serv., 436 U.S. 658 (1978). The doctrine of respondeat superior liability is inapplicable in §1983 actions. Id. at 691-95. A municipality is liable for the acts of its employees only where the violation of the plaintiff's constitutional rights stems from a governmental policy or custom. City of Canton, Ohio v. Harris, 489 U.S. 378 (1989). The plaintiff must establish that the municipal action was taken with "deliberate indifference" to its known or obvious consequences. Id. at 388.

To sustain liability, plaintiff must first show that her constitutional rights were in fact violated by the municipal employees. Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir. 2002). Plaintiff must then show that the City's policy or custom was the moving force of the constitutional violation. Polk County v. Dodson, 454 U.S. 312, 326 (1981). See also Board of County Commrs. of Bryan County, Okla. v. Brown, 520 U.S. 397, 404 (1997)(plaintiff must demonstrate a direct causal link between the municipal action and a deprivation of federal rights); Garner v. Memphis Police Dept., 8 F.3d 358 (6th Cir. 1993)(plaintiff must identify policy at issue, connect the policy to the governmental body, and show that injuries were incurred because of the execution of the policy.)

A single decision by a decision maker with final authority in the relevant area may constitute a "policy" attributable to the municipality. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). However, the municipality is liable for an official's unconstitutional action only when the official is the one who has the final authority to establish municipal policy with respect to the action ordered. Id. at 481. Mere authority to exercise discretion while performing particular functions does not make a municipal employee a final policymaker unless the official's decisions are final and unreviewable and are not constrained by the official policies of superior officials. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).

There is no evidence in this case that any of the acts alleged in plaintiff's complaint, even assuming they occurred, were the result of a municipal policy or custom. There is also no evidence that defendant Hamilton and any other supervisors allegedly involved in any act affecting plaintiff's employment were acting as policymakers. The record fails to support any basis for municipal liability under §1983 against the City. Therefore, the federal claims against the City will be addressed as Title VII claims.

Defendant Hamilton correctly argues that he cannot be found liable under Title VII. It is well established that individual supervisors and employees are not subject to liability under Title VII. Weberg v. Franks, 229 F.3d 514, 522 n. 7 (6th Cir. 2000); Wathen v. General Electric Co., 115 F.3d 400, 405 (6th Cir. 1997). Therefore, the federal claims against defendant Hamilton will be addressed as claims under §1983. Defendant Hamilton also correctly notes that the statute of limitations for a §1983 action is two years. Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989). Since the complaint in this case was filed on January ...


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