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Vizcarrondo v. Ohio Department of Rehabilitation and Corrections

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

November 22, 2019




         This matter comes before the Court upon the Motion for Summary Judgment of Defendant Ohio Department of Rehabilitation and Corrections (“ODRC”). (Doc. No. 24.) Plaintiff Luis Vizcarrondo (“Vizcarrondo”) filed a brief in opposition to ODRC's Motion for Summary Judgment on May 29, 2019, to which ODRC responded on June 12, 2019. (Doc. Nos. 29, 30.) For the following reasons, ODRC's Motion for Summary Judgment is GRANTED.

         I. Background

         a. Factual Background

         In 1988, ODRC hired Vizcarrondo, who is Hispanic, as a Correction Officer at its Northeast Reintegration Center (“NERC”). (Doc. No. 18 at 8.) On October 30, 1990, ODRC terminated Vizcarrondo's employment after several female inmates reported that he had solicited sexual acts from them or had sexual intercourse with them. (Id. at 94; Doc. No. 18-3 at 6.) Vizcarrondo's union filed a grievance challenging the termination decision, and the matter proceeded to a hearing. (See Doc. No. 18-3.) After only one inmate testified at the hearing, the arbitrator found that ODRC had failed to meet its burden of proof and ordered that Vizcarrondo be reinstated, but recommended that he be transferred to a male institution. (Id. at 2.) Vizcarrondo refused to transfer, however, and remained at NERC. (Doc. No. 18 at 108-09.)

         In 1995, Vizcarrondo was promoted to Sergeant. (Doc. No. 18-6.) A couple of years later, in 1997, he was then promoted to Lieutenant. (Doc. No. 18-7.) Over the next ten to fifteen years, ODRC asserts that Vizcarrondo did not distinguish himself as a Lieutenant. (Doc. No. 24 at 2-3.) Specifically, ODRC submitted evidence that Vizcarrondo received several coaching sessions and reprimands with regard to attendance and tardiness issues. (Doc. Nos. 18-9, 18-10, 18-12, 18-14, 18-15.) In addition, in 2010, Vizcarrondo was suspended for failing to provide required documentation on weapons training by the appropriate deadline and received a written reprimand for failing to spray paint manhole covers in conjunction with identifying and mapping them after being directed to do so by a superior. (Doc. No. 18 at 136-38; Doc. Nos. 18-16, 18-17.) Finally, in 2013, Major Brian Evans completed a coaching session with Vizcarrondo after there were several problems with a Vulnerability Assessment conducted by Vizcarrondo. (Doc. No. 19-8.) During this same time frame, Vizcarrondo asserts he received scores of accommodations and certifications related to his work and training, although he does not point to any specific accommodations regarding his performance as a Lieutenant. (See Doc. No. 29 at 5; Doc. No. 29-2 at ¶ 4; Doc. No. 29-3.)

         In July 2013, Vizcarrondo expressed interest via email in serving as the Administrative Lieutenant assisting Major Donald Redwood, and subsequently received the assignment. (Doc No. 18 at 27-29.) Serving as an Administrative Lieutenant was an assignment, not a promotion, but it did provide Vizcarrondo with an administrative office near the Warden and the Deputy Warden and was a potential pathway to the next highest rank, Captain. (Id. at 30; Doc. No. 29-2 at ¶ 7.) Shortly after Vizcarrondo moved to his new office, Deputy Warden Garey Burt began greeting Vizcarrondo by saying, “Yo quiero Taco Bell.” (Doc. No. 18 at 31-32.) Deputy Warden Burt continued using this phrase even after Vizcarrondo asked him to stop. (Id.) In October 2013, David Brown replaced Major Redwood and became Acting Major. Major Brown then took Vizcarrondo off the Administrative Lieutenant assignment, and instead assigned it to Lieutenant Leslie Rigby. (Doc. No. 21 at 72-73.) Both Major Brown and Lt. Rigby are African American. (Doc. No. 29 at 5.) In addition, Vizcarrondo asserts that all of the high-ranking officials at NERC at that time were African American. (Doc. No. 29-2 at ¶ 8.)

         In contrast to Vizcarrondo's assignment as an Administrative Lieutenant, to apply for a promotion to another position, Vizcarrondo and other applicants used Ohio's online application system. ODRC would upload a job posting to the system, and identify the job title, duties, location, and minimum qualifications an applicant must have to hold each position. (Doc. No. 24-2 at ¶ 5.) After applicants submit their materials, an employee in the personnel office of the ODRC institution begins a screening process to identify individuals who meet the minimum qualifications and are appropriate for interview. (Id. at ¶¶ 5-8). As part of this screening process, a reviewer objectively assigns points for each applicant based on the applicant's education, job related experience, and certifications onto a Subject Matter Expert Screening Form (“SME Form”). (Id. at ¶ 6.) Based on the screening, a group of applicants are selected to interview with a panel from the institution, typically three administrators who work in the department where the open position exists. (Id. at ¶ 7.) The interview panel then recommends an applicant for final approval by the appropriate appointing authority, which is the Warden at a correctional institution. (Id. at ¶ 8.)

         In November 2013, Vizcarrondo applied for a Correction Captain opening at NERC. (Doc. No. 18 at 47; Doc. No. 19-12.) Vizcarrondo was selected to interview for the position, but the panel recommended another applicant, Lt. Rigby, for the position. (Doc. No. 18 at 48; Doc. No. 19-12.) The panel's recommendation was “based on Lt. Rigby's years of experience in custody and the fact that she served a year in a TWL capacity. Lt. Rigby currently serves as our Administrative Lieutenant which better prepared her for this position. Lt. Rigby is currently enrolled in College to obtain her degree.” (Doc. No. 19-12.) According to their SME Forms, Vizcarrondo had about twenty-three years of experience at that time and a cumulative score of thirteen, while Rigby had about fifteen years of experience and a cumulative score of twelve. (Doc. Nos. 20-15, 28-9.) Warden LaShann Eppinger approved the panel's recommendation on February 6, 2014. (Doc. No. 19-12.) In January 2014, Vizcarrondo applied for another open Correction Captain position, but the position was awarded to Lieutenant Jack Johnson on February 6, 2014 as well. (Doc. No. 18 at 47; Doc. No. 19-14.)

         Shortly thereafter, in March 2014, Vizcarrondo received his annual performance review. The review provided that “Lieutenant Vizcarrondo has a lot of potential, but needs to complete his Bachelor's Degree in order to advance in the ODRC.” (Doc. No. 20-10 at 4.) Multiple ODRC personnel testified that this statement was inaccurate because, while education is taken into account in promotion decisions, a bachelor's degree is not a minimum requirement for advancement to Captain. (E.g., Doc. No. 23 at 64-65.) For example, Lt. Rigby was promoted to Correction Captain without having a bachelor's degree. (See Doc. No. 19-12.)

         In May 2014, Vizcarrondo dual-filed a charge of discrimination against ODRC with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). (Doc. No. 18-34.) Therein, Vizcarrondo alleged that ODRC discriminated against him based on his national origin-Hispanic-and his age in its decision to remove him from his Administrative Lieutenant position and in the promotions of Lt. Rigby and Lt. Johnson to Correction Captains instead of him. (Id.) During its investigation, the OCRC did not discover any information that raised an inference that ODRC discriminated against Vizcarrondo on the basis of his age or national origin. (Doc. No. 19-15.)[1] As a result, on March 25, 2015, the EEOC issued a right-to-sue letter notifying Vizcarrondo of the dismissal of his charges and the requirement that he bring any suit based on his charges within ninety days of receipt of the notice. (Doc. No. 19-17.)

         In November 2014, Vizcarrondo applied for another promotion, this time for a Correctional Specialist position-also referred to as a Unit Manager. (Doc. Nos. 18-39, 20-23.) The interview panel recommended Lieutenant Kimberly Armour, who is African American, for the position, and Warden Eppinger approved the recommendation on December 10, 2014. (Doc. No. 18-39.) The SME Forms for Lt. Armour and Vizcarrondo show that Vizcarrondo had twenty-six years of experience at that time, no post-high school education, and a cumulative score of thirteen, while Lt. Armour had twelve and a half years of experience, a bachelor's degree from Youngstown State University, and a cumulative score of thirteen. (Doc. No. 20-23.)

         Vizcarrondo asserts that these SME Forms are evidence of discrimination because the description of Lt. Armour's experience was more detailed than the description of his experience. (Doc. No. 29 at 14.) Vizcarrondo does not challenge the accuracy of the cumulative score, only that the written description of his tenure was less detailed than the written description of Lt. Armour's tenure. (See Doc. No. 20-23.) Captain Johnson testified that he believed that such differing descriptions on SME Forms are used to favor one candidate over another. (Doc. No. 27 at 43, 46-47.) Captain Johnson also testified generally that he believed “that there is a mind-set at Northeast Reintegration Center that if you are not of color you get substandard treatment. You are held to a different expectation and that expectation seems to be higher.” (Id. at 17.) With regard to the hiring process, Captain Johnson also stated that “the whole system is slanted and corrupt” and that he has “sat on interview boards, knowing that there was a better candidate, and that candidate was not selected for personal reasons.” (Id. at 14.)

         In March 2015, following Lt. Armour's promotion to Correctional Specialist, Vizcarrondo filed his second charge of discrimination with the EEOC and OCRC, alleging the promotions of Lt. Armour and Charles Washington (which Vizcarrondo no longer challenges) were in retaliation for his previous charge of discrimination and discriminatory based on his age, race, sex, and national origin. (Doc. No. 18-40.) On February 13, 2017, the EEOC issued a right-to-sue letter regarding Vizcarrondo's charges, providing that the EEOC was unable to conclude that ODRC had committed any violations and that suit must be brought within ninety days of receipt of the notice. (Doc. No. 18-46.)

         On May 28, 2015, a few months after Vizcarrondo filed his second charge of discrimination, Warden Eppinger issued Vizcarrondo a written reprimand for failing to report to the last mandatory firearms training session, which put Vizcarrondo in jeopardy of losing his firearms certification. (Doc. No. 18-42.) In response, Vizcarrondo filed a grievance with ODRC appealing the reprimand. (Doc. No. 18-43.) Vizcarrondo asserted the reprimand was not justified because his car had broken down the day of the training and he had followed the proper call-off procedures. (Id.) After a review of the grievance, Warden Sherry Clouser rescinded the reprimand. (Id.)

         In addition to filing his grievance, Vizcarrondo also filed a charge with the EEOC and OCRC on June 15, 2015 in which he alleged that the written reprimand was in retaliation for filing his previous charges of discrimination against ODRC. (Doc. No. 18-44.) The EEOC issued a right-to-sue letter for this charge on March 9, 2018, again notifying Vizcarrondo that he had ninety days in which to bring suit. (Doc. No. 10 at 13.)

         In April 2016, Major Evans recommended that Lieutenant Ken Chapman, who is African American, fill a Temporary Working Level (“TWL”) position for Correction Captain that opened when the current Captain went on long-term leave. (Doc. No. 20 at 78-79.) Warden Clouser approved the recommendation. (Id.) After this decision, Vizcarrondo filed his fourth and final charge with the EEOC and OCRC. (Doc. No. 18-45.) Vizcarrondo asserted the failure to promote him to TWL Captain was in retaliation for his previous protected activity and discriminatory based on his race, age, and national origin. (Id.) The EEOC issued a right-to-sue letter for this charge on March 9, 2018 as well. (Doc. No. 10 at 14.)

         In December 2016, Vizcarrondo applied for another Correction Captain position. The interview panel recommended Lt. Chapman for the position, and Warden Clouser approved the recommendation on February 7, 2017. (Doc. No. 19-23.) The interview panel's recommendation to Warden Clouser stated:

Lt. Kenyon Chapman is recommended for selection for the position of Correction Captain. Lt. Chapman has over 18 years of correction experience that includes juvenile, city and adult corrections. He started his employment with the Northeast Reintegration Center as a Correction Officer, and Correction Counselor/Sergeant. He also served in different roles as Tools Control Officer, Rules Infraction Board (R.I.B.) Chair, and participated in regional Vulnerability Assessment Team. Lt. Chapman holds a Bachelor of Science degree in Criminal Justice from Indian [sic] Wesleyan University.

(Id.) Vizcarrondo and Lt. Chapman's SME Forms show that Vizcarrondo had approximately twenty-eight years of experience at that time and a cumulative score of twelve, while Lt. Chapman had approximately nineteen years of experience and a cumulative score of fifteen. (Doc. Nos. 19-21, 19-22.) Warden Clouser testified that Lt. Chapman had a reputation for staying late, coming in early, filling in for shifts, taking on extra duties, and generally going above and beyond his assignments. (Doc. No. 20 at 82.) She also stated that Vizcarrondo “wasn't regarded in the same light as Lieutenant Chapman, as stepping up, filling in, helping, ” and that such characteristics are “important at a prison, that people have to rely on each other.” (Id. at 81-82.)

         Finally, in May 2017, Vizcarrondo applied for another Correctional Specialist position. The interview panel recommended Lieutenant Tuneisha Gibson, who is African American, for the position, and Warden Brandeshawn Harris approved the panel's recommendation on June 28, 2017. (Doc. No. 19-25.) The interview panel's recommendation provided:

Ms. Tuniesha Gibson is recommended for selection as Correction Specialist because of her background, experience and performance during the interview. Ms. Gibson started her corrections career as a Corrections Officer at the Ohio State Penitentiary in January 2011, then promoted to the position of Correction Program Specialist at the Northeast Reintegration Center in September 2015. Ms. Gibson obtained her Bachelors [sic] Degree in applied Science fro [sic] Youngstown State University.

(Id.) Lt. Gibson also had experience as a Case Manager, an important factor for the Correctional Specialist position, which supervises Case Managers. (Doc. No. 23 at 93-94; Doc. No. 24-1 at ¶ 6.) Vizcarrondo also claims he had experience as a Case Manager, but ODRC disputes that. (Doc. No. 24-1 at ¶ 7; Doc. No. 29-2 at ¶ 9.)

         One of the four members of the interview panels that recommended Lt. Gibson and Lt. Chapman was Deputy Warden Evans. (Doc. Nos. 19-23, 19-25.) Captain Johnson testified that he once heard Deputy Warden Evans comment that they could not fill a vacancy for a TWL Lieutenant position in “the new world of Vizcarrondo.” (Doc. No. 27 at 21.) There is no evidence as to when Deputy Warden Evans made this comment and Captain Johnson did not ask Deputy Warden Evans to explain what the comment meant. (Id. at 21-22.)

         b. Procedural History

         On June 1, 2018, Vizcarrondo filed suit against ODRC in this Court, alleging that ODRC had engaged in discriminatory and retaliatory conduct in violation of (1) Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; (2) the Ohio Civil Rights Act, Ohio Rev. Code § 4112; and (3) 42 U.S.C. § 1983. (Doc. No. 1.) After answering the Complaint, ODRC filed a Motion for Partial Judgment on the Pleadings that sought dismissal of Vizcarrondo's claims under the Ohio Civil Rights ...

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