Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wheeler v. City of Columbus

United States District Court, S.D. Ohio, Eastern Division

August 8, 2019

SARAH WHEELER, Plaintiff,
v.
CITY OF COLUMBUS, Defendant.

          VASCURA MAGISTRATE JUDGE.

          OPINION & ORDER

          ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant City of Columbus's Motion for Summary Judgment. (ECF No. 32). Plaintiff has filed a memorandum in opposition (ECF No. 36) and Defendant has filed a reply. (ECF No. 39). In addition, Plaintiff has submitted a Motion for Leave to File a Sur-Reply. (ECF No. 40). This Court held oral argument on Friday, July 19, 2019 at 11:00 AM. Having considered the briefing of the parties and the arguments made in court, for the following reasons, Defendant's Motion is DENIED IN PART AND GRANTED IN PART. In addition, Plaintiff's Motion for Leave to File is GRANTED.

         I. BACKGROUND

         Plaintiff Sarah Wheeler is an Army veteran who decided to become a police officer. In 2013, she entered the academy to become a member of the Columbus Police Department (CPD). To become a CPD officer, recruits complete six months of mostly classroom training at the academy, followed by four “phases” of on-the-job training, accompanied by Field Training Officers (FTOs). FTOs are more senior officers who volunteer for the job of training new officers. (CPD compensates FTOs, who take on this responsibility in addition to all their other duties, by giving them more leave time). FTOs supervise and train the probationary officers (POs), and complete the paperwork documenting how well the POs are progressing. POs must successfully complete all four phases of training to graduate.

         Plai r training, but at the end of Phase IV, her FTO, Officer Joseph Houseberg, did not recommend her for advancement, citing Plaintiff's failure to meet expectations in specific areas, including location and navigation, officer safety, and use of the radio. The FTO does not make termination decisions, however, just recommendations, and so Officer Houseberg's recommendation went to the FTO Sergeant, at the time Sergeant Laura Suber.

         Sgt. Suber reviewed Plaintiff's file and spoke with Officer Houseberg. Seeing that some of the runs Plaintiff completed were not documented, and out of a sense for how much time was invested both by Plaintiff and by CPD, Sgt. Suber wanted to give Plaintiff “every advantage to succeed.” (ECF No. 29, Ex. 11 at 74) (hereafter “Suber Deposition”). She decided to put Plaintiff on probation and give her the opportunity to complete more training in order to pass and graduate the program. This involved assigning Plaintiff to then-Sergeant (now Lieutenant) Garner for more training, and Sgt. Garner would do “ride-alongs” with Plaintiff to observe her in action.

         After observing Plaintiff in action and during at least two ride-alongs, Sgt. Garner did not make a specific recommendation to Sgt. Suber about whether to advance or terminate Plaintiff, but he did forward along the reports he had been keeping while observing Plaintiff. (ECF No. 29, Ex. 2 at 57:7-14) (hereafter “Garner Deposition”). After reviewing these further efforts by Plaintiff, Sgt. Suber was “concerned this wasn't going as well as…hoped.” (Suber Deposition at 101:7-8). Sgt. Suber decided she would not recommend Plaintiff for advancement.

         Sgt. Suber met with Plaintiff on December 5, 2013, at police headquarters and explained her decision to Plaintiff. (Suber Deposition at 116:15-23). Plaintiff was given the option of either being terminated by the department or resigning in lieu of termination. Plaintiff refused several times to “burn” her time writing a resignation letter (ECF No. 29, Ex. 17 at 316:13) (hereafter “Wheeler Deposition”) and so was terminated by the Department.

         Plaintiff now brings this suit, alleging she was discriminated against by CPD on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq; and the Ohio Laws Against Discrimination, O.R.C. § 4112.01, et seq. Plaintiff also alleges her termination was unlawful because it was retaliatory, in violation of Title VII and the Ohio Revised Code.

         II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 56(a) provides, in relevant part, that 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.” A fact is deemed material only if it “might affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States, 20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party must then present “significant probative evidence” to show that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992). Summary judgment is inappropriate, however, “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, 477 U.S. at 248.

         The necessary inquiry for this Court 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.'” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251-52). The mere existence of a scintilla of evidence in support of the opposing party's position will be insufficient to survive the motion; there must be evidence on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). It is proper to enter summary judgment against a party “who 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). Where the nonmoving party has “failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ” the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 322 (quoting Anderson, 477 U.S. at 250).

         In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013).

         III. LAW & ANALYSIS

         Plaintiffs who allege they suffered unlawful discrimination in violation of Title VII have four ways to prove their case: by providing direct evidence of discrimination, by providing circumstantial evidence of discrimination, by arguing a mixed-motive case, or by arguing the cat's paw doctrine. Despite a memorandum contra containing fifty-five[1] pages of argument, it is unclear which of these theories Plaintiff seeks to advance, because Plaintiff's brief alternately cites all of these, though argues none fully. In any event, it appears to be the practice of this Circuit to discuss each of the possible avenues when presented with a question such as this. See e.g. Chattman v. Toho Tenax America, 686 F.3d 339 (6th Cir. 2012). Accordingly, this Court will briefly discuss each of these possible theories.

         A. Direct Evidence

         A plaintiff may prove her Title VII case with direct evidence. In general, direct evidence “is evidence that directly proves and, if accepted by the jury as true, conclusively establishes a fact, without any inference.” 23B Am. Jur. Pl. & Pr. Forms Trial § 239. In the Title VII context, direct evidence is “that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.” Wexler v. White's Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). A plaintiff who presents direct evidence of discrimination does not proceed through the familiar McDonnell Douglas burden-shifting framework, see infra; rather, the plaintiff's case-in-chief is met, and the “burden of persuasion shifts to the defendant to show that it would have terminated the plaintiff's employment had it not been motivated by discrimination.” Jacklyn, 176 F.3d at 926 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 224-5 (1989) (plurality)).

         Plaintiff never squarely states what she believes is direct evidence of discriminatory intent on the part of CPD. This Court infers she must be submitting for consideration the statements of then-Sgt. Garner.[2] See Price Waterhouse, 490 U.S. at 250 (concluding that sex stereotyping is a Title VII violation). According to Plaintiff's deposition, during the ride-alongs with Sgt. Garner, he asked her questions about her family and about being a woman in a “man's job.” She testified:

I knew it was going to be a tough ride-along with him for the reason being is the first conversation in a cruiser is questioning me about my family and, How does your family feel doing a man's job? How are your kids going to feel with the schedule? How does your husband feel? It was pretty much, You are a woman doing this man's job. How is your family going to feel about this? How are you going to feel about this? Do you feel good about it? Like it was pretty much, This is going to be a tough road the next couple ride-alongs.”

(Wheeler Deposition at 295:10-22).

         Asked what else she remembered about the ride-alongs with Sgt. Garner, Plaintiff testified:

We had a long conversation in reference to that. He -- he like dug into my family and how being a woman in this job and he was comparing and contrasting. Like he wanted me to see like everything that being this woman in this field is going to be rough. Maybe I'm not cut out for the job. How are your kids going to act when mommy is on night schedules and not around as much due to all the overtime? Pretty much like scaring me.

(Wheeler Deposition at 296:1-9).

         But in a “timeline” Plaintiff wrote before she approached counsel in this matter, she describes the interaction with Sgt. Garner differently. (Wheeler Deposition at 333:4-334:6) (describing the provenance of the “timeline”). She wrote that after the first ride-along, Sgt. Garner debriefed her, and then the two had “a long conversation.”[3]

[Sgt. Garner]: Wheeler, how's family life? Cause problems at home can affect the performance at work?
[Wheeler]: Life at home is going well, though at the beginning (January 2013) was rough due to life changes. Though, Jared is doing much better with the life changes and very supportive.
G: Have you ever thought this was not for you? Or maybe a smaller department would be better for you, since Columbus is so big? Cause if so, you can resign and nobody would think differently or badly of you.
W: sigh, tears…No, I believe that I can do this job. Though I do feel like there is a black cloud over my head, since completion of Phase Four and all the negative rumors. People were more friendly and more approachable until the word (rumors) on the streets was out, then I start to constantly be knit picked on unless they were true friends or officers that did not believe in rumors.
G: Well, I only grade only what I see and not from the past. Obviously your [sic] upset now, do you want to go home or stay?
W: I will stay because you don't learn staying at home.
G: Well, let's go to Headquarters for 10-23 (errands). Have you ever heard of the peer assistance?
W: Yes.
G: You should reach out to them. My old partner, Jennifer Mancini, she helps with the peer assistance and may help.
W: silence…

(ECF No. 29, Ex. 18 at 109).

         The other possible instance Plaintiff could conceivably be asserting constitutes direct evidence of discrimination is what is repeatedly referred to in the depositions as “the table.” For Phase IV, Plaintiff was assigned to Officer Kenneth Kropp. She alleges that on her first day in his precinct, she was told to introduce herself to the precinct by standing on the table.

         Specifically, she alleges Officer Kropp told her to “dance” on the table to introduce herself. (See e.g., Wheeler Deposition, 151:23-152:2; 152:23-153:3). Plaintiff testified that she never reported the comment (e.g. Id. at 156:6-13) but also that she did not hear the same request being made of her male colleagues who were also beginning a new Phase that day. (Wheeler Deposition at 153:23-154:2). At his deposition, Officer Kropp was asked how new officers introduce themselves to the precinct, and he testified that although officers have “gotten on a table to introduce themselves” in the past, that is no longer typical. (ECF No. 29, Ex. 5 at 65:22-66-5) (hereafter “Kropp Deposition”). Kropp testified “we were told to stop it” - that is, the table-introduction tradition - by Sgt. Suber. (Id. at 66:9-11). Kropp also testified that he never asked Plaintiff to get on the table to introduce herself (Id. at 66:20-22) and that Plaintiff never spoke with him about the incident. (Id. at 69:21-70:3).

         Thus although Plaintiff does not appear to directly make these allegations, plausibly she could argue that any of these three incidents constitutes direct evidence of sexism in the workplace. To complete her case-in-chief, however, Plaintiff must “establish not only that the plaintiff's employer was predisposed to discriminate on the basis of [sex], but also that the employer acted on that predisposition.” Hein v. All America Plywood Co., Inc., 232 F.3d 482, 488 (6th Cir. 2000). This is where Plaintiff's direct evidence case must fail. Assuming, arguendo, that the interactions with Officer Kropp and Sgt. Garner constitute direct evidence of sexism, Plaintiff has presented no evidence to indicate that her employer acted on that discriminatory basis when she was recommended for termination. This is for two reasons.

         First, neither Officer Kropp nor Sgt. Garner was the decision-maker in Plaintiff's case. Officer Kropp actually recognized he and Plaintiff had a personality conflict and requested that he be replaced as her FTO. (Suber Deposition at 58:8-63:7). Sgt. Suber allowed this, and Plaintiff worked with Officer Joseph Houseberg for the remainder of that Phase. Officer Kropp memorialized his impressions of Plaintiff in an email to Sgt. Suber (ECF No. 29, Ex. 6 at 27-28), but he did not have any input in whether she was retained or terminated. In the ordinary course, FTOs may make recommendations, but they do not make the ultimate decision about whether to retain or terminate a probationary officer. This would have been true of Officer Kropp twice over - first, because he was only an FTO, and second, because he handed over responsibility for training Plaintiff to Officer Houseberg and did not stay her FTO for the entire phase.

         Sgt. Garner similarly did not have decision-making authority in Plaintiff's case. When Officer Houseberg recommended she not advance and Sgt. Suber decided to give Plaintiff one more opportunity, Plaintiff was assigned to Sgt. Garner. Again, Sgt. Garner would have been documenting his impressions of Plaintiff and conveying his perspectives up the chain of command, but he did not have the power to retain or dismiss Plaintiff on his own. (Garner Deposition at 57:7-14). As a result, even if the comments by these men constituted direct evidence of sexism, Plaintiff cannot show that CPD acted on that predisposition.[4]

         Second, Plaintiff cannot show CPD acted on a sexist predisposition because CPD has ample evidence to indicate that instead, Plaintiff was terminated for cause. Specifically, Plaintiff was terminated because of concerns that she struggled to navigate, she struggled with the radio, she struggled in the area of officer safety, and she did not make progress on her weaknesses such that CPD could be sure she could operate as a single-officer unit in the field without being a liability. Although the number of “unacceptable” ratings differs from Phase to Phase - which gives the impression that perhaps Plaintiff was proceeding apace through the first three Phases before she stumbled in Phase IV - in fact, the comments of her FTOs through even the first three Phases presage the struggles that her supervisors would document in Phase IV and beyond.

         Officer Karen Blair was Plaintiff's FTO for Phase II. In Week Four of probation, the first week Plaintiff spent with Officer Blair, Officer Blair memorialized her impressions of Plaintiff's progress. Under “officer weaknesses, ” Officer Blair wrote, “PO often struggles to relay messages to radio correctly and the dispatcher has to ask questions taking up more time on the radio.” (Wheeler Deposition at 74:10-13; see also ECF No. 29, Ex. 1 (“Blair Deposition”) at 40:14-17 (a supervisor's summary of Plaintiff's progress having read Officer Blair's reports); 43:10-13 (same); 46:17-23 (same)). In the next paragraph, Officer Blair wrote, “PO needs improvement in her mapping skills and becoming more familiar with directions and how to respond to locations quickly. PO is able to find locations on her map but struggles to apply the map to where she currently is.” (Wheeler Deposition at 75:21-76:1). Plaintiff also struggled in the area of officer safety. She patted down an individual who was to be transported to the jail, but the deputy at the jail performed a second pat-down and “found several coins” in the back pocket. Officer Blair wrote, “FTO discussed with PO the importance of conducting a thorough prisoner search for safety reasons.” (Wheeler Deposition at 77:22-78:3).

         These themes recur during Plaintiff's time at CPD. After the first week she worked with Officer Houseberg for Phase IV, he memorialized his impressions of Plaintiff. He wrote, “PO Wheeler displays a hesitation when using the main radio channel.” (Wheeler Deposition at 227:20-21). During her deposition, Plaintiff appears to argue that any struggles with the radio were because the recruits were given inadequate practice at the academy, but this hardly falsifies the impressions of multiple FTOs over a three-month period. (Wheeler Deposition at 229:4-6).

         More importantly, Plaintiff's protestations about the contemporaneous reports of her weaknesses ring hollow because she does not similarly protest the reports of her strengths. She cannot reasonably maintain the position that her strengths are reported accurately but her weaknesses are falsified - especially when, as here, the weaknesses have consistencies through the Phases. For example, asked if she has any reason to dispute Officer Blair's summary of her strengths, Plaintiff said no. (Wheeler Deposition at 73:16-22). Then Plaintiff was asked about Officer Blair's summary of her weaknesses.

Q. And then she [Officer Blair] lists probationary officer weaknesses and weekly corrective training. Do you have any reason to dispute ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.