United States District Court, S.D. Ohio, Eastern Division
VASCURA MAGISTRATE JUDGE.
OPINION & ORDER
ALGENON L. MARBLEY UNITED STATES DISTRICT JUDGE.
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
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.
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.
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
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
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.
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.
STANDARD OF REVIEW
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.
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).
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).
LAW & ANALYSIS
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 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.
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)).
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. 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
(Wheeler Deposition at 295:10-22).
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
(Wheeler Deposition at 296:1-9).
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.”
[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
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
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?
G: You should reach out to them. My old partner, Jennifer
Mancini, she helps with the peer assistance and may help.
(ECF No. 29, Ex. 18 at 109).
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.
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).
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.
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.
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
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.
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).
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).
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 ...