United States District Court, S.D. Ohio, Western Division
ENTRY AND ORDER GRANTING IN PART DEFENDANT=S MOTION
FOR SUMMARY JUDGMENT, ECF 13, DECLINING TO EXERCISE
JURISDICTION OVER PENDANT CLAIMS AND TERMINATING
M. ROSE UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion for Summary
Judgment. ECF 13. Therein, Defendant City of Dayton requests
that the Court grant summary judgment on Plaintiff Lalit
Gupta's claims of racial discrimination, national origin
discrimination and retaliation. Because many of
Plaintiff's claims are time-barred, because Plaintiff was
not qualified by reason of disability for the position he
sought in 2016, and because the Court will decline to
exercise pendant jurisdiction over Plaintiff's remaining
claims, Defendant's motion will be granted in part and
the remaining claims dismissed.
Lalit Gupta was born in New Delhi, India. (Gupta Depo. at
17). Gupta holds Bachelor of Science degrees in Mechanical
and Electrical Engineering from the Institute of Engineers in
Calcutta, India. (Gupta Depo. at 10). Gupta came to the
United States in 1987. (Gupta Depo. at 17). He has lived in
Dayton, Ohio almost continuously since that time.
began his employment with the City of Dayton on May 15, 1989.
(Heidrich Aff. Ex. 1). He was hired as a Wastewater Engineer
in the Wastewater Treatment Division of the City's Water
Department, and he held that role throughout most of his
tenure with the City. (Gupta Depo. at 37-38).
1989 to 2009, Gupta's direct supervisor was Wastewater
Treatment Division Manager Thomas Schommer. (Gupta Depo. at
59.) Gupta regularly filled in for Schommer as Division
Manager when Schommer was absent, and he assisted Schommer
with performing many of his duties. (Heidrich Aff. Ex. 2 at
Gupta 2370, Heidrich Aff. Ex. 3, Gupta Depo. Ex. 4). Gupta
effectively served as Schommer's “second in
command, ” and Gupta's goal had always been to
become the manager when the opportunity arose. (Gupta Aff. at
¶ 2). Schommer's final review of Gupta's
performance reflects that Gupta was a highly skilled,
well-respected employee who met or exceeded all performance
metrics. (Heidrich Aff. Ex 4).
1987 to 2000 (at which time there was a major reorganization
in the Wastewater Treatment Division), Gupta helped Schommer
supervise a staff of approximately 25 individuals. (Gupta
Depo. at 40, Heidrich Aff. Ex. 5).
2009, Schommer retired. (Gupta Depo. at 59). Water Department
Director Tammi Clements appointed Phil Bennington, a white,
American-born male, to fill the role on an interim basis
while the City searched for a permanent Division Manager.
(Clements Depo. at 10, Gupta Aff. at ¶ 3).
was responsible for interviewing and hiring a candidate to
fill the Division Manager position on a permanent basis.
(Clements Depo. at 15.) Gupta applied for the Division
Manager role and was interviewed along with other candidates
in September 2009. (Heidrich Aff. Ex. 30). Gupta was not
notified whether he was selected for the position following
his September 2009 interview. On that basis, he assumed he
was still being considered for the role. Gupta Aff. at ¶
5). Clements continued interviewing candidates beyond
September 2009. (Heidrich Aff. Ex. 6 at Gupta 1283).
November 8, 2009, Clements removed Bennington from the acting
Division Manager position. (Clements Depo. at 13). On
November 9, 2009, Clements and Administrative Division
Manager Pete Hannah approached Gupta and asked if he would
like to be the acting Division Manager. (Clements Depo. at
25). Clements told Gupta that he would serve as the acting
Division Manager for a six-month probationary period, and
then he would be made the permanent Division Manager. (Gupta
Depo. at 64-65). Gupta accepted Clements's proposal.
(Gupta Depo. at 64-65).
became the acting Division Manager on November 16, 2009.
(Gupta Depo. at 67). Six months came and went, and Clements
said nothing to Gupta about the status of his probationary
period or his transition to permanent Division Manager.
(Gupta Depo. at 97). However, Gupta believed that he was
performing well in the role and that he would eventually be
made the permanent Division Manager. (Gupta Depo. at 97).
did not conduct a performance evaluation of Gupta during his
tenure as acting Division Manager. According to Clements, the
reason Gupta was not evaluated during his time as acting
Division Manager was that he was not due for an evaluation
during that period. (Clements Depo. at 32). According to
Gupta, he had received his most recent annual review in July
2009, and he was due for another review in July 2010 (when he
was still in the acting Division Manager role). (Heidrich
Aff. Ex. 4)
October 4, 2010, after Gupta had been the acting Division
Manager for nearly a year, Clements told Gupta that she had
hired Gary Marshall, a white, American-born male, to be the
permanent Division Manager. (Gupta Aff. at ¶ 3, Gupta
Depo. at 98-103). Gupta did not know that Clements was
continuing to search for a permanent Division Manager while
he was serving as acting Division Manager, and he was
“stunned” by Clements's announcement. (Gupta
Depo. at 98-103).
states that she did not retain Gupta in the Division Manager
role because: (1) Gupta required assistance preparing the
budget; (2) his morning meetings were unproductive and
disorganized; and (3) there were morale problems in the
Division during his tenure. (Def. Mot. Summ. J., Doc. 13,
PageID 54-55). Gupta admits there were problems with employee
morale and the morning meetings, calling them preexisting.
ECF 25, PageID 626.
City also asserts that Clements selected Marshall over Gupta
because Marshall had superior interpersonal skills and
because he possessed the equivalent of a Class IV Wastewater
Works Operator Certificate. (Def. Mot. Summ. J., Doc. 13,
PageID 57). The job description contained the following
minimum requirements: (1) a Bachelor's degree in
engineering or science; (2) five years of experience in
wastewater treatment; (3) three years of experience in
general management/supervision, and two years of management
experience at a Class III or IV wastewater facility; (4)
possession of a Class III Wastewater Works Operator
Certificate; and (5) the qualifications to be accepted as an
Ohio EPA Class IV Wastewater Works Operator Candidate.
(Id.). Gupta met each of these requirements. (Gupta
Depo. at 37-38, 40; Gupta Depo. Ex. 1; Gupta Aff. at ¶
6-7, Heidrich Aff. Ex. 5).
City of Dayton submitted an affidavit wherein Clements states
the “principal accountabilities” for the Division
Manager position. (Clements Aff., Doc. 13-1, at ¶ 8,
PageID 80). None of the “principal
accountabilities” stated by Clement were listed in the
job description for the Division Manager position in
2009-2010. (Heidrich Aff. Ex. 8). The job description states
that the “primary responsibility of the Wastewater
Treatment Manager is to ensure that all water discharged to
the Great Miami River meets Federal, State, and local
standards for clean water.” Clements does not allege
that Gupta was unable to meet this responsibility during his
tenure as acting Division Manager and she admitted that Gupta
had “technical expertise.” (Clements Depo. at
final performance evaluation of Gupta noted that he is a
“team player”, “cooperate[s] to build a
positive work environment to improve overall performance of
the Division, ” “work[s] very well with plant
staff, City staff, consultants, attorneys, OEPA and others,
” and “is very flexible and always tr[ies] to
work with a can-do attitude.” (Heidrich Aff. Ex. 4).
City also states that its belief that Gupta did not have
sufficient management experience was “shared by the
Ohio EPA.” When Gupta applied for his Class IV license,
the Ohio EPA asked for more clarification regarding
Gupta's management experience, but once he provided that
explanation, the Ohio EPA granted the license. (Heidrich Aff.
Ex. 9, 10).
assumed the Division Manager role in October of 2010 and
Gupta returned to his Wastewater Engineer role. (Heidrich
Aff. Ex. 11). On November 8, 2010, Marshall threatened to
slap Gupta. (Gupta Depo. Ex. 10). Gupta reported this to
Clements. (Id.). Clements initially denied to the
Equal Employment Opportunity Commission that Gupta ever told
her about the threat. (Heidrich Aff. Ex. 6 at Gupta 1283-84).
Clements knew about the allegation of a threat (Clements
Depo. at 53) and stated that she instructed Pete Hannah to
investigate the incident. (Clements Depo. at 54). Hannah
stated that his investigation was limited to asking Marshall
whether or not he made the threat, and that when Marshall
denied it, Hannah took no further action. (Hannah Depo. at
31). Clements did not discipline Marshall in response to the
threat. (Clements Depo. at 55).
his tenure, Marshall held meetings without Gupta. (Gupta
Depo. at 168-169; Bennington Depo. Ex. 4). On March 12, 2010,
Marshall made a comment about applying sludge to a field,
asking if it was at Lalit's “big house”
(Bennington Depo. Ex. 2). Marshall never entrusted Gupta to
serve in the capacity of acting Division Manager in the
Division Manager's absence. (Gupta Aff. at ¶ 10,
Heidrich Aff. Ex. 12). Instead, he asked other employees to
fill the role. (Id.).
2011, the Water Department created a new position called
Wastewater Treatment Administrator. (Def. Mot. Summ. J., Doc.
13, PageID 58). The new Administrator would report directly
to the Division Manager. (Id.). Matt Carpenter, who
at that time was the Deputy Director of the Water Department,
led the hiring process for the position, subject to
Clements's approval. (Clements Depo. at 43-44). Jason
Tincu, a white, American-born male, was hired for the
position. (Def. Mot. Summ. J., Doc. 13, PageID 58; Gupta Aff.
at ¶ 3).
City first posted the Administrator job in March 2011.
(Heidrich Aff. Ex. 14). The March 2011 posting contained the
following requirements: (1) a Bachelor's degree in
engineering or a science-related discipline; (2) five years
of experience in wastewater treatment; (3) two years of
supervisory experience; and (4) the criteria to be accepted
as a Class IV Wastewater Treatment candidate at the time of
appointment. (Id.). Gupta met all of these