The opinion of the court was delivered by: Judge Gregory L. Frost
Magistrate Judge Terence P. Kemp
This matter is before the Court on Defendants' Motion for Summary Judgment (ECF No. 39), Plaintiff's Memorandum in Response to Defendant's Motion for Summary Judgment (ECF No. 40), Defendants' Reply in Support of Summary Judgment (ECF No. 41), and the Affidavit of Albert Jackson (ECF No. 42). For the reasons that follow, the Court GRANTS Defendants' motion.
Plaintiff Lenora Lutz brought this action against her former employer, Noble Correctional Institution ("Noble"), claiming that Noble discriminated against her and retaliated against her, both in violation of 42 U.S.C. § 2000e et seq. ("Title VII").
Noble is a medium security prison within the Ohio Department of Rehabilitation and Corrections ("ODRC"). It houses inmates convicted of all criminal offenses, including murder. Plaintiff began working at Noble in January 2001, as a corrections officer. She worked as a relief officer and then bid into an inmate housing unit.
During her employment, Plaintiff began to have serious right arm and hand problems, causing her to wear a brace to help with numbness. Ultimately, Plaintiff claims that she lost complete use of her right hand. Plaintiff also began suffering from incapacitating headaches, which effected her concentration, caused her to have blurred vision and to be unable to read. She experiences dizzy spells every other day and once fell down stairs, breaking her leg, due to a dizzy spell. Plaintiff's doctors do not know the cause of her hand problems and headaches.
Plaintiff's health conditions rendered her unable to perform her full duties as a corrections officer, and as a result, she participated in ODRC's Return to Work ("RTW") program. The RTW program is governed by a "departmental policy that provides for a joint labor [and] management group to individually on a case-by-case basis assess a staff member's current physical limitations due to some temporary disability and what, if any, duties they can perform during their rehabilitation period." (ECF No. 39-3; Warden Aff.) The program is designed to be temporary, offering accommodation for no more than 90 days. It is utilized to transition an employee back to full duty with no medical restrictions. Once employees exhaust their RTW time, they go back to their regular post if they are physically able to do so. If the employee is not able to return to their regular post, he or she must use disability leave. For 90 days, Plaintiff was temporarily placed on posts where she had limited contact with inmates due to her physical limitations and her inability to defend herself. Plaintiff's health did not improve during those 90 days and she was not able to return to full duty. Thereafter, she went on disability leave and began receiving benefits.
On May 20, 2009, while still on disability leave, Plaintiff requested that she be permanently assigned to a post that has limited contact or no contact with inmates, as she could not physically defend herself or others, nor use a firearm. Further, Plaintiff believed that she could not wear her wrist brace in an inmate housing unit, as it would alert the inmates that she was physically vulnerable.
Defendants denied Plaintiff's request to be assigned permanently to a limited or non-contact position and ultimately terminated Plaintiff. Plaintiff claims that she was not given a permanent limited contact or non-contact position because she is a woman. Further, Plaintiff contends that she was terminated in retaliation for filing a charge of discrimination against Defendants.
Summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The "party seeking 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., 477 U.S. 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. Civ. P. 56(e)). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie Power Prods., Inc., 328 F.3d at 873 (quoting Anderson, 477 U.S. at 248). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (the requirement that a dispute be "genuine" means that there must be more than "some metaphysical doubt as to the material facts"). Consequently, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234-35 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
To establish a Title VII employment discrimination or retaliation claim, a plaintiff is "required to either 'present direct evidence of discrimination or introduce circumstantial evidence that would allow an inference of discriminatory treatment.' " Id. at 272-73 (citing Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir. 2003)). Where, as here, a plaintiff fails to present direct evidence of discrimination or retaliation, the burden shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined by Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), applies. Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572 (6th Cir. 2000) (discrimination); Weigel v. Baptist Hosp., 302 F.3d 367, 381 (6th Cir. 2002) (retaliation). Under that paradigm, a plaintiff must first present a prima facie case of discrimination or retaliation. "Once the prima facie case is made, a defendant may offer any legitimate, non-discriminatory reason for the employment action, which the plaintiff may rebut by evidence of pretext; however, the burden of proof always remains with the plaintiff." Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996) (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Plaintiff contends that Defendants refused to place her into a limited contact on non-contact position because she is a woman.
1. Prima facie case of discrimination
"To establish a prima facie case of discrimination by the defendant, 'the plaintiff must show (1) that [s]he is a member of a protected group, (2) that [s]he was subject to an adverse employment decision, (3) that [s]he was qualified for the position, and (4) that [s]he was replaced by a person outside of the protected class. . . . the fourth element may also be satisfied by showing that similarly situated non-protected employees were treated more favorably.' " Clayton v. Meijer, Inc., 281 F.3d 605, 610 (6th Cir. 2002) (quoting Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995)) (alteration in original). The parties here only dispute whether there were any similarly situated non-protected employees who were treated more favorably than Plaintiff.
Plaintiff posits that her male co-worker, Albert Jackson, is similarly situated to her as that term is defined under a Title VII analysis. Plaintiff submitted with her memorandum in opposition, Jackson's affidavit. Jackson's affidavit, however, is unsigned and unauthenticated. In Defendants' reply memorandum, Defendants point this out and ask the Court not to consider the affidavit. In the alternative, Defendants argue that, even if this Court were to accept the affidavit, it is irrelevant because Jackson is not similarly situated to Plaintiff.
Four days after Defendants' reply memorandum was filed, and three weeks after Plaintiff had filed her memorandum in opposition to Defendants' motion, Plaintiff re-filed Jackson's affidavit. Jackson's affidavit at this filing was signed and authenticated. Plaintiff indicated that, prior to filing her memorandum in opposition, her attorney "obtained Jackson's oral approval of the wording of the" affidavit and the "[p]roblems in transmission of the signed and notarized affidavit to [Plaintiff's counsel] caused a delay in submitting this fully executed affidavit to the Court." (ECF No. 42 at 1.) Plaintiff further indicated that because Defendants addressed the substance of the unsigned affidavit, Defendant is not prejudiced and it is appropriate for the Court to consider the untimely filed affidavit.
Initially, the Court notes that it disagrees with Plaintiff's proposition that because Defendants addressed the merits of the unsigned affidavit it is appropriate for the Court to consider it. This Court's Local Civil Rules do not permit this type of late filing of evidence to support a ...