# Hatcher v. Cuyahoga Metropolitan Housing Authority

> District Court, N.D. Ohio · June 13, 2022

URL: https://www.frixlaw.com/law-library/cases/10370967

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** June 13, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO

SHARON HATCHER, Case No. 1:20-cv-02508

Plaintiff,
-vs- JUDGE PAMELA A. BARKER

CUYAHOGA METROPOLITAN MEMORANDUM OPINION & ORDER
HOUSING AUTHORITY,

Defendant.

Currently pending is Defendant Cuyahoga Metropolitan Housing Authority’s Motion for
Summary Judgment. (Doc. No. 26.) Plaintiff Sharon Hatcher filed a Brief in Opposition to CMHA’s
Motion, to which CMHA replied. (Doc. Nos. 32, 34.) For the following reasons, CMHA’s Motion
for Summary Judgment is granted.
I. Background
Defendant CMHA is a public housing authority in Cuyahoga County, Ohio. It owns and
manages properties and administers rent subsidy programs to provide low-income individuals and
families with access to housing in Cuyahoga County. CMHA employs more than 600 employees and
posts its employment vacancies on various websites, including on Indeed.com. (Doc. No. 26-1,
PageID# 194.) CMHA uses generic internal job titles—e.g., “Service Person V”—so CMHA’s
external job postings on websites like Indeed.com reflect the primary skill and/or trade sought by
CMHA.1 (Lonnie Brown Affid., Doc. No. 26-4, ¶ 6.) In early September 2019, CMHA uploaded a
posting for a “Plumber” job onto Indeed.com. (Id. at ¶ 7.)

1 Though CMHA attached several examples of external job postings with titles such as “Experienced Boiler, Heating &
Plumbing Technician,” “Journeyman Electrician,” and “CMHA Carpenter” to Brown’s affidavit, neither CMHA nor
On September 18, 2019, Plaintiff Sharon Hatcher applied for CMHA’s “Plumber” job through
Indeed.com by submitting a copy of her resume. (Id.; see also Hatcher Resume, Doc. No. 26-6.)
According to Hatcher’s resume, she was pursuing a degree in photography and filmmaking through
Cuyahoga Community College, and obtained an associate degree from Cuyahoga Community
College in 2017, a bachelor of science degree through Franklin University in 2003, and an associate
of applied science degree from Cuyahoga Community College in 1990. (Doc. No. 26-6, PageID#

467.) Additionally, Hatcher indicated that she had significant experience in performing a variety of
plumbing work, as well as HVAC work, carpentry, painting, and electrical work. (Id.) Hatcher listed
a variety of relevant work experience in her Professional Experience section, including working as a
plumbing contractor since 2014 and in plant and facility maintenance for a variety of employers for
11 years. (Id. at PageID# 468-69.) Hatcher indicated that she held a master plumber contractor’s
license through the state of Ohio, as well as other certifications and licenses in facility management,
HVAC care, and boiler management. (Id. at PageID# 470.)
After receiving Hatcher’s resume, CMHA’s Talent Acquisition Manager Lonnie Brown
immediately scheduled an in-person interview with Hatcher. (Doc. No. 26-4, ¶¶ 8-9.) Brown
confirmed Hatcher’s interview “for the Plumbing position with the Cuyahoga Metropolitan

Housing Authority” by email on September 18, 2019. (Interview Confirmation E-mail, Doc. No.
32-4, emphasis in original.) Brown and CMHA’s Director of Property Maintenance Ronald King
interviewed Hatcher on September 19, 2019. (Id.) According to CMHA, Brown and King explained
that Hatcher was interviewing for a “Service Person V” position and that, while the primary job focus
would be on plumbing-related work, all Service Person Vs were expected to complete additional job

Hatcher provided a copy of the September 2019 “Plumber” job posting to which Hatcher applied on Indeed.com. (See
Doc. No. 26-4, PageID# 341-45.)
2
duties, including trash and snow removal and other tasks. (Id. at ¶ 10.) Brown and King also
explained that Hatcher would be required to use her personal vehicle and standard tools, but that
CMHA would reimburse her for her gas mileage and would provide any customized tools necessary
to complete a task. (Id. at ¶ 11.) However, according to Hatcher, she never received a job description
for the Service Person V position and neither Brown nor King explained to her during her interview
that, in addition to her plumbing duties, she was also responsible for picking up trash and snow.

(Hatcher Depo. Trans., Doc. No. 26-7, PageID# 486.)
Thereafter, CMHA offered Hatcher the position of Service Person V, at a starting rate of
$20.28 per hour. (Hatcher Offer Letter, Doc. No. 26-9.) On October 3, 2019, Hatcher signed an offer
letter from CMHA accepting the Service Person V position. (Id.) Hatcher began her new job as a
Service Person V on October 7, 2019. (Doc. No. 26-4, ¶ 13.) On Hatcher’s first day, Brown assigned
Hatcher to work at the Carver Park Asset Management Project (“AMP”). (Id. at ¶ 21.) Hatcher
testified that she was not told during her interview that she would be assigned to a specific estate, but
was told that she would be assigned to the central maintenance shop. (Doc. No. 26-7, PageID# 493.)
The next day, on October 8, 2019, Hatcher appeared, unannounced, at CMHA’s central human
resources office to meet with Brown. (Doc. No. 26-4, ¶ 22.) Hatcher expressed several complaints

to Brown, including that she was required to drive her own vehicle, rather than being assigned a
company car, that she was required to use her own tools, and that Carver Park’s maintenance
supervisor was disorganized and unprepared for Hatcher’s arrival. (Id. at ¶¶ 22-23.)
Thereafter, Brown reviewed Hatcher’s complaints with CMHA’s Director of Human
Resources Betsy McCafferty. (Id. at ¶ 24.) Brown and McCafferty decided to reassign Hatcher to
the Far West AMP because Far West had a need for a plumber, and because Far West had more

3
experienced leaders, including AMP Leader Nancy Oliveras-Eakins and Maintenance Supervisor
Nigel Chung. (Id.) Brown met with Hatcher on October 14, 2019 to notify her of the reassignment.
(Id. at ¶ 25.)
On Hatcher’s first day at Far West, she met with Oliveras-Eakins and Chung, who gave her a
partial tour of Far West. (Oliveras-Eakins Affid., Doc. No. 26-11, ¶¶ 6-7.) Hatcher complained to
Oliveras-Eakins and Chung about being required to perform non-plumbing tasks, using her personal

vehicle, and using her standard plumbing tools. (Id. at ¶ 7; Chung Affid., Doc. No. 26-12, ¶ 7.) Both
Oliveras-Eakins and Chung explained to Hatcher that, as a Service Person V, she was expected to
perform non-plumbing tasks, including garbage removal and shoveling snow. (Id.) Oliveras-Eakins
explained to Hatcher that she would first be assigned to plumbing tasks, but once those were
completed, Hatcher would be expected to complete other non-plumbing tasks as assigned. (Doc. No.
26-11, ¶ 8.) Additionally, Oliveras-Eakins asked Hatcher to create a list of additional plumbing tools
that Hatcher believed she would need, and that Oliveras-Eakins would submit the list to Chung for
review. (Id.) Finally, Oliveras-Eakins assigned Hatcher to work only at the Bellaire Garden-B
building, rather than assigning Hatcher to the entire Far West AMP, as the Bellaire Garden-B building
had plumbing needs, and servicing a single building would reduce the need for Hatcher to drive her

personal vehicle to various service calls. (Id.)
At some point after her reassignment to Far West, Hatcher again complained to Brown about
having to use her vehicle and about having to complete certain job duties, including picking up trash.
(Doc. No. 26-8, ¶ 26.) Brown averred that she again expressed surprise about Hatcher’s complaints
because she told Hatcher in her interview that Hatcher would be required to use her own vehicle and
perform non-plumbing tasks, including picking up trash. (Id.)

4
During Hatcher’s brief tenure at Far West, she interacted with two white male CMHA
plumbers while working in Bellaire Gardens. (Doc. No. 26-7, PageID# 487.) According to Hatcher,
these plumbers told her they earned $28 per hour and that they were classified as Service Person Vs
but were not assigned to a particular estate and instead worked out of the central maintenance shop.
(Id. at PageID# 487, 495.) Hatcher also testified that these plumbers told her she should not be
assigned to a specific estate, but to central maintenance, and that she should be making more money.

(Id.) At her deposition, Hatcher could not recall any details about the men’s appearances or their
names. (Id. at PageID# 489, 494.) CMHA posits that these plumbers were two white male Service
Person IVs named Richard Roginski and Lee Johnson, both of whom made approximately $16 per
hour in October 2019 and were assigned to the Far West AMP at that time. (Doc. No. 26-4, ¶¶ 33-
34.) According to CMHA, there were no other Service Person Vs assigned to the Far West AMP at
that time. (Id. at ¶ 29.)
At some point during Hatcher’s time at Far West, she also interacted with an unknown
maintenance employee assigned to the Bellaire Gardens-B building. (Doc. No. 26-12, ¶ 9.)
According to Chung, he received a phone call from the maintenance employee who complained that
when he asked Hatcher for help in maneuvering a trash dumpster, Hatcher refused to help him. (Id.)

On October 22, 2019, Hatcher did not report to work at the Far West AMP. (Doc. No. 26-11,
¶ 28.) Instead, Hatcher arrived, again unannounced, at CMHA’s Human Resources Department to
meet with Brown. (Id. at ¶ 27.) Hatcher again told Brown that she refused to perform non-plumbing
related tasks and protested using her own vehicle and tools. (Id.) Brown again told Hatcher that all
Service Person Vs were expected to perform non-plumbing related duties, including picking up trash
and removing snow. (Id.) According to Brown, Hatcher ended this meeting by telling Brown that

5
she was unhappy at CMHA and no longer wished to work there, but that CMHA would have to fire
her because she refused to quit. (Id.)
That same day, on October 22, 2019, at 9:22 a.m., Bellaire Gardens Property Manager
Marguerita Hernandez emailed Hatcher, asking her to address and close out six priority work orders
by the end of the day, per CMHA’s policy of closing priority work orders within 48 hours.2
(Hernandez Affid., Doc. No. 26-15, ¶¶ 4, 9.) At 1:30 p.m. that same day, Hatcher sent a lengthy

response to Hernandez. (Id. at ¶ 11.) In her email to Hernandez, Hatcher opened with: “Allow me
to first mention the two negative encounters with you.” (Hatcher Email, Doc. No. 26-16, PageID#
599.) Hatcher described one encounter in which Hernandez did not extend a greeting to Hatcher, or
to two other residents, when Hernandez entered the office. (Id.) Hatcher accused Hernandez of
rolling her eyes after Hatcher said hello and offering no response to Hatcher’s greeting. (Id.) Next,
Hatcher described another encounter in which she attempted to retrieve keys for Bellaire Gardens-A
from the office. (Id.) According to Hatcher, the office door was locked and so Hatcher knocked on
the door. Hatcher wrote that she could hear Hernandez asking “Who is it?,” and that Hatcher
continued to knock until Hernandez came to the door. (Id. at PageID# 600.) Hatcher also addressed
Hernandez’s request that Hatcher resolve the six outstanding work orders by the end of the day. (Id.)

Hatcher wrote that, “[b]ased on the content of your email you have assumed I have not addressed
those W/Os outlined.” However, Hatcher asserted she had indeed either addressed the orders but had
not yet closed them, or else had assessed the problem and needed to return to complete the work.
(Id.) Hatcher told Hernandez that, “rather than assume, the better approach is to make an inquiry” as

2 Hernandez also included another CMHA employee, Jose Lopez Estrada, on the October 22, 2019 email. (See Hatcher
Email, Doc. No. 26-16, PageID# 600-01.) Hernandez asked Lopez Estrada to close out one priority work order by the
end of the day.
6
to whether Hatcher had completed the work orders. (Id.) Hatcher further complained that she had to
work the entire property by herself the previous day without taking a lunch and explained that she
was “a licensed plumber, not a miracle worker.” (Id.) Finally, Hatcher closed her email asking that
Hernandez allow her to “execute [her] skills as a knowledgeable plumber,” and that she “[did] not
require micromanaging.” (Id.)
Hernandez was offended by the tone of Hatcher’s email and believed that Hatcher’s recitation

of her prior interactions with Hernandez was incorrect. (Doc. No. 26-15, ¶ 12.) After she received
Hatcher’s email, Hernandez called Chung and explained that she was offended by the email. (Id. at
¶ 13.) Hernandez also forwarded Hatcher’s email to Cedra Westbrook, CMHA’s Human Resources
Employee Relations Manager. (Id. at ¶14.) At that point, CMHA’s Human Resources Department
decided to schedule a Pre-Disciplinary Conference (“PDC”) with Hatcher to address Hatcher’s email
to Hernandez, as well as Hatcher’s refusal to perform non-plumbing tasks. (Westbrook Affid., Doc.
No. 26-17, ¶ 7.) CMHA issued an Interoffice Memorandum, addressed to Hatcher, on October 23,
2019, with the subject “Pre-Disciplinary Conference.” (PDC Memo, Doc. No. 26-19.) When
Hatcher’s supervisor Chung attempted to hand the PDC Memo to Hatcher, Hatcher refused to sign it.
(Doc. No. 26-12, ¶ 11; see also Doc. No. 26-19.)

CMHA conducted Hatcher’s PDC on October 23, 2019. (Doc. No. 26-17, ¶ 9.) Hatcher,
Westbrook, and Oliveras-Eakins attended the PDC, as well as Hatcher’s union representative, Melissa
Floyd. (Westbrook Depo., Doc. No. 32-2, PageID# 712; Doc. No. 26-17, ¶ 9.) Westbrook acted as
CMHA’s fact finder during the PDC and took notes of the proceedings, but did not ask Hatcher any
questions herself. (Doc. No. 32-2, PageID# 690, 740-42.) During the PDC, Oliveras-Eakins
addressed Hatcher’s email and her insubordination towards Hernandez. (Doc. No. 32-2, PageID#

7
736-37.) Oliveras-Eakins also addressed the problem of Hatcher repeatedly visiting CMHA’s central
human resources office without reporting to her assigned workplace. (Id. at PageID# 745.)
According to Westbrook’s notes, Hatcher brought up that she refused to pick up trash or remove snow
because she believed she should only have to perform plumbing-related tasks. (Id. at PageID# 736-
37.) Hatcher also complained that the PDC was unfair to her, that she applied for the position of
“plumber,” and that she was not hired to “do grounds” or pick up trash. (Id. at PageID# 747-48.)

Westbrook further noted that Hatcher said she was “done with CMHA” and that CMHA would have
to fire her because she was not quitting. (Id. at PageID# 748.) Hatcher also described her hiring as
a “bait and switch,” referring to CMHA’s expectation that she pick up trash and shovel snow in
addition to completing her plumbing duties. (Id.)
After the PDC concluded, Westbrook met with McCafferty and CMHA’s Deputy Director of
Human Resources Ronaye Steele. (Doc. No. 26-17, ¶ 18.) In her affidavit, Westbrook averred that
she presented the facts that she gathered from the PDC to McCafferty and Steele, though she could
not recall the specifics of her discussion with McCafferty and Steele during her deposition. (Doc.
No. 26-17, ¶ 18; Doc. No. 32-2, PageID# 709-10.) According to Westbrook’s affidavit, McCafferty
and Steele asked Westbrook to recommend a course of discipline for Hatcher based on the facts

gathered during the PDC. (Doc. No. 26-17, ¶ 18.) Westbrook averred that she recommended that it
would be in the interests of both CMHA and Hatcher to terminate Hatcher’s employment. (Id.)
Westbrook averred that both McCafferty and Steele agreed with her recommendation. (Id.) Again,
Westbrook did not recall the specifics of her discussion with McCafferty and Steele about her
recommendation to terminate Hatcher’s employment during her deposition. (Doc. No. 32-2, PageID#
711.)

8
On October 24, 2019, CMHA sent a letter to Hatcher terminating her employment. (Hatcher
Termination Letter, Doc. No. 32-9.) The letter noted that Hatcher participated in a PDC to discuss
possible violations of CMHA’s Personnel Policies and Procedures Manual, including incompetency
or inefficiency in performing her duties, disrespectful treatment of supervisors, violation of CMHA
rules and regulations, disruptive activity in the workplace, insubordination, acts of malfeasance,
misfeasance, or nonfeasance, and conduct unbecoming an employee in public service. (Id.) CMHA

concluded that, pursuant to a review of the facts presented at the PDC, it was determined that Hatcher
violated the above provisions of CMHA’s Personnel Policies and Procedures Manual. (Id.)
Specifically, CMHA substantiated that she “exhibited rude and disrespectful behavior toward
management,” that she refused to complete work assignments at both Carver Park and Far West, and
that, when informed that she needed to close work orders in a timely manner, Hatcher “responded in
a negative tone.” (Id.) CMHA further noted that during the PDC, Hatcher “emphatically stated that
although hired as a Service Person V [she] will only do certain jobs.” (Id.) Thus, CMHA concluded
that Hatcher’s conduct was of a grievous nature, violated CMHA’s policies and procedures, and
would not be tolerated by CMHA. (Id.) CMHA terminated Hatcher’s employment, effective October
23, 2019. (Id.)

Thereafter, Hatcher filed an initial complaint in this matter on November 6, 2020. (Doc. No.
1.) Although Hatcher proceeded initially in this matter pro se, she obtained representation on August
17, 2021. (Doc. No. 14.) Shortly thereafter, she moved to amend her complaint on August 19, 2021.
(Doc. No. 17.) CMHA did not oppose Hatcher’s late attempt to amend her complaint and the Court
granted her motion to amend on August 24, 2021. (8/24/2021 Minutes of Proceedings of telephonic
status conference; 8/24/2021 ECF non-document order granting Plaintiff’s Motion to Amend

9
Complaint.) Thus, Hatcher’s Amended Complaint became the operative pleading. (See Doc. No.
17-1.) In her Amended Complaint, Hatcher alleges four causes of action against CMHA: race
discrimination in contravention of Title VII and the Ohio Civil Rights Act, and retaliation in
contravention of Title VII and the Ohio Civil Rights Act. (Doc. No 17-1, ¶ 12.)
On January 10, 2022, CMHA filed the instant Motion for Summary Judgment. (Doc. No. 26.)
On February 23, 2022, Hatcher filed a Brief in Opposition to CMHA’s Motion, to which CMHA

replied on March 9, 2022. (Doc. Nos. 32, 34.) Thus, CMHA’s Motion is now ripe for a decision.
II. Standard of Review
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in
favor of the non-moving party.” Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.
2006). “Thus, ‘the mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’”
Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is “material” only “if its resolution might affect the

outcome of the suit under the governing substantive law.” Henderson, 469 F.3d at 487.
At the summary judgment stage, “[a] court should view the facts and draw all reasonable
inferences in favor of the non-moving party.” Pittman v. Experian Info. Solutions, Inc., 901 F.3d
619, 628 (6th Cir. 2018). In addition, “the moving party bears the initial burden of showing that there
is no genuine dispute of material fact.” Ask Chems., LP v. Comput. Packages, Inc., 593 Fed. Appx
506, 508 (6th Cir. 2014). The moving party may satisfy this initial burden by “identifying those parts

10
of the record which demonstrate the absence of any genuine issue of material fact.” Lindsey v.
Whirlpool Corp., 295 Fed. Appx 758, 764 (6th Cir. 2008). “[I]f the moving party seeks summary
judgment on an issue for which it does not bear the burden of proof at trial,” the moving party may
also “meet its initial burden by showing that ‘there is an absence of evidence to support the
nonmoving party’s case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once
the moving party satisfies its burden, “the burden shifts to the non-moving party who must then point

to evidence that demonstrates that there is a genuine dispute of material fact for trial.” Ask Chems.,
593 Fed. Appx at 508-09. “[T]he nonmoving party may not simply rely on its pleading, but must
‘produce evidence that results in a conflict of material fact to be solved by a jury.’” MISC Berhad v.
Advanced Polymer Coatings, Inc., 101 F. Supp. 3d 731, 736 (N.D. Ohio 2015) (quoting Cox, 53 F.3d
at 150).
III. Analysis
The Court analyzes Hatcher’s claims under Title VII and the Ohio Civil Rights Act together,
as “Ohio’s requirements are the same as under federal law.” Russell v. Univ. of Toledo, 537 F.3d
596, 604 (6th Cir. 2008) (quoting Carter v. Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003)); see
also Lindsey, 295 F. App’x at 760 n.1 (“The Ohio Civil Rights Act mirrors Title VII in all relevant

respects for Plaintiff’s discrimination and retaliation claims.”); see 42 U.S.C. §§ 2000e-2, 2000e-3;
Ohio Rev. Code § 4112.02. Accordingly, the Court will turn first to Hatcher’s discrimination claims
before analyzing her retaliation claims.
A. Discrimination
CMHA asserts that Hatcher cannot establish a prima facie case of discrimination because she
did not remain qualified for the Service Person V position and also because Hatcher failed to identify

11
any similarly situated, nonminority comparator that either replaced her or received better treatment
than Hatcher did. (Doc. No. 26-1, PageID# 207-10; Doc. No. 34, PageID# 808-11.) CMHA further
asserts that even if Hatcher could establish a prima facie case of discrimination, it has offered
legitimate, non-discriminatory reasons for Hatcher’s termination that she cannot show are pretextual.
(Id.) In response, Hatcher asserts that she was qualified for the plumber role and also that she need
not identify a replacement because CMHA’s behavior towards Hatcher was clearly racist. (Doc. No.

32, PageID# 659-61.) The Court agrees with CMHA that Hatcher cannot establish a prima facie case
of discrimination.
Under Title VII, it is “an unlawful employment practice for an employer . . . to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff may rely on
either direct or circumstantial evidence to establish that an employer engaged in discrimination.
Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir. 2003). In the absence of direct evidence, the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
applies. Kroger, 319 F.3d at 865-66. Under this framework, “the plaintiff faces the initial burden of

presenting a prima facie case of unlawful discrimination.” Id. at 866. To establish a prima facie case
of discrimination, a plaintiff must “show that 1) he is a member of a protected class; 2) he was
qualified for his job and performed it satisfactorily; 3) despite his qualifications and performance, he
suffered an adverse employment action; and 4) that he was replaced by a person outside the protected
class or was treated less favorably than a similarly situated individual outside his protected class.”
Johnson v. Univ. of Cincinnati, 215 F.3d 561, 572-73 (6th Cir. 2000). “The establishment of a prima

12
facie case creates a rebuttable presumption of discrimination and requires the defendant to ‘articulate
some legitimate, nondiscriminatory reason’ for taking the challenged action.” Kroger, 319 F.3d at
866 (quoting Univ. of Cincinnati, 215 F.3d at 573). Finally, “[i]f the defendant is able to satisfy this
burden, the plaintiff must then ‘prove that the proffered reason was actually a pretext to hide unlawful
discrimination.’” Id.
1. Prima Face Case of Discrimination

a) Second Prong: Qualified for Job and Performing Satisfactorily
To be qualified for a position, a plaintiff must demonstrate “that she was meeting her
employer’s legitimate expectations and was performing to her employer’s satisfaction.” Warfield v.
Lebanon Corr. Inst., 181 F.3d 723, 729 (6th Cir. 1999). In this case, there is a fact issue surrounding
CMHA’s legitimate expectations of a Service Person V, as communicated to Hatcher during her job
interview. CMHA proffered two affidavits in which Brown and King each averred that they clearly
explained to Hatcher during her interview that she was interviewing for a Service Person V position,
and that she was required to complete periodic non-plumbing tasks, including trash and/or snow
removal, as a Service Person V. (Doc. No. 26-4, ¶ 10; Doc. No. 26-8, ¶ 7.) However, during her

deposition, Hatcher testified that no one told her during her job interview that she would have other
job duties and responsibilities as a Service Person V, in addition to her plumbing duties. (Doc. No.
26-7, PageID# 486.) Neither party proffered the Service Person V job description as evidence, nor
was there any deposition evidence from either Brown or King, or any evidence that Hatcher received
and/or reviewed a job description that indicated that a Service Person V would be expected to
complete non-plumbing-related tasks. Thus, there is factual dispute over whether CMHA
communicated its legitimate expectations for the Service Person V role before Hatcher accepted the

13
job on October 3, 2019. The Court will not weigh CMHA’s affidavits against Hatcher’s testimony.
However, for the reasons discussed below, Hatcher’s discrimination claims fail for multiple other
reasons and so the Court need not decide whether Hatcher was qualified for and satisfactorily
performing the position of Service Person V at the time of her termination.
b) Fourth Prong: Similarly Situated Comparators, Other Evidence
Suggesting Discrimination
With respect to the fourth prong of the prima facie case, a plaintiff must demonstrate that she
“was replaced by a person outside the protected class or was treated less favorably than a similarly
situated individual outside his protected class.” Univ. of Cincinnati, 215 F.3d at 572-73. To be
considered “similarly situated,” the situation of the comparator must be “similar to the plaintiff in all
relevant aspects.” Highfill v. City of Memphis, 425 F. App’x 470, 474 (6th Cir. 2011). However, the
Supreme Court has also emphasized that McDonnell Douglas’s prima facie standard is not

“inflexible” and that the specific proof required of the plaintiff in a particular case is “not necessarily
applicable in every respect in differing factual situations.” Texas Dep’t of Comm. Affairs v. Burdine,
450 U.S. 248, 254 n.6 (1981) (quoting McDonnell Douglas, 411 U.S. at 802, n.13). Thus, if there are
no similarly situated comparators who either replaced the plaintiff or were treated more favorably
than the plaintiff, “the Sixth Circuit allows other evidence that is ‘sufficient to create an inference of
discrimination’ to establish a prima facie case.” Faure v. Ohio State Univ., No. 2:19-cv-1949, 2021
WL 5918914, at *10 (S.D. Ohio Dec. 14, 2021) (citing Shah v. General Electric Co., 816 F. 2d 264,
268 (6th Cir. 1987); see also, e.g., Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)
(“Although the District Judge found no prima facie case had been established by Plaintiff because of
the lack of the fourth ‘replaced-by-a-‘non-protected’-person’ element of the McDonnell

14
Douglas/Burdine criteria, a plaintiff can also make out a prima facie case by showing, in addition to
the first three elements, that ‘a comparable non-protected person was treated better’.”)
For example,
[i]n Lindsay v. Yates, the Sixth Circuit found that the plaintiffs met the fourth element
of their prima facie case for race discrimination in housing even though they did not
present evidence of similarly situated individuals who were treated more favorably.
578 F.3d 407, 417-18 (6th Cir. 2009) (inferring discrimination because of the
suspicious timing of the defendants’ termination of the purchasing agreement—within
a few days after the seller discovered the buyers were African American). The Court
noted that “so long as additional evidence exists—beyond showing the first three
elements of the McDonnell Douglas test—that indicates discriminatory intent in light
of common experience, the required inference of discrimination can be made in
satisfaction of the prima facie case.” Id. (citations omitted); see also Blair v. Henry
Filters, Inc., 505 F.3d 517, 530 (6th Cir. 2007) (inferring discrimination where the
supervisor “(1) repeatedly mocked [the plaintiff’s] age, (2) removed [the plaintiff]
from a lucrative account because of his age, and (3) told other employees that he
wanted younger salesmen.”); Jefferson v. Intelligrated, Inc., No. 1:18-cv-00894, 2021
WL 4224714, at *–––– – ––––, 2021 U.S. Dist. LEXIS 176066, at *15–16 (S.D. Ohio,
Sept. 16, 2021) (inferring discrimination where the defendant employer transferred
several of plaintiff's business accounts to white employees despite evidence that the
plaintiff performed better than the white employees).

Faure, 2021 WL 5918914, at *10.
The Court concludes that Hatcher offers no evidence of any similarly situated, non-protected
individual who either replaced her or was treated more favorably than her. At most, Hatcher offers
unsubstantiated allegations in her Amended Complaint that she had a single conversation with two
unknown white male plumbers, who told her that they were better paid than she was, and that they
were not expected to pick up garbage. (Doc. No. 17-1, ¶ 7.) However, at the summary judgment
stage, Hatcher offers no evidence to substantiate these allegations. She was unable to identify the
two male plumbers by name or physical description during her deposition. (Doc. No. 26-7, PageID#
489, 494.) Further, Hatcher never testified that these men were not required to pick up garbage. (Id.)
There is no evidence in the record that the two unnamed white male plumbers with whom Hatcher
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spoke were exempt from the job requirement that they pick up trash and/or remove snow in addition
to their primary plumbing responsibilities. Moreover, CMHA proffered evidence that the white male
plumbers with whom Hatcher spoke were not Service Person Vs from CMHA’s central maintenance
department, but likely two Service Person IVs assigned to the Far West AMP and who were paid
approximately $16 per hour, less than Hatcher’s salary. (See, e g., Doc. No. 26-4, ¶ 29.) Thus, there
is at least some evidence that Hatcher may have received better treatment than the two white male

plumbers because she made more money per hour and had a higher job classification.
The Court further concludes that Hatcher fails to offer any “additional evidence” that would
“indicate[ ] discriminatory intent” in this case. Lindsay, 578 F.3d at 417-18. Instead, Hatcher
supports her conclusory accusations of racial bias on irrelevant Internet opinion pieces and social
science research which have nothing to do with the facts of this case. (Doc. No. 32, PageID# 662-
63.) The Court agrees with CMHA that Hatcher’s citation to Lindsay v. Yates is inapposite because,
unlike in Lindsay, there is no record evidence whatsoever upon which to make an “inference of
discrimination.” Lindsay, 578 F.3d at 416-17. Further, Hatcher’s citation to George v. Leavitt is also
unpersuasive because the George plaintiff presented conflicting evidence at the summary judgment
stage about her job performance, relationships with coworkers, and reasons for her termination.

George v. Leavitt, 407 F.3d 405, 414-15 (D.C. Cir. 2005). In particular, the plaintiff proffered
evidence that white male engineers in her office “escaped discipline despite engaging in verbal
arguments and incorrectly handling Hotline messages, the same conduct for which George allegedly
was fired.” Id. at 414. Hatcher, on the other hand, proffered no such evidence (other than her
unsubstantiated allegations about two unknown white plumbers, see supra) that any nonprotected
employees received better treatment than she did, or were not terminated for similar conduct to

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Hatcher, or that CMHA ever considered Hatcher’s race in any way. Accordingly, the Court concludes
that Hatcher is unable to establish the fourth prong of her prima facie case and, thus, her
discrimination claims necessarily fail.
2. Pretext
Even if the Court assumed that Hatcher could establish a prima facie case of discrimination,
the Court nevertheless concludes that Hatcher fails to demonstrate that CMHA’s proffered legitimate,

nondiscriminatory reason for terminating Hatcher’s employment is pretext for discrimination. Thus,
her discrimination claims still fail.
CMHA articulated several legitimate, nondiscriminatory reasons for terminating Hatcher’s
employment. In Hatcher’s termination letter, CMHA explained that, following Hatcher’s in-person
pre-disciplinary conference, CMHA substantiated that Hatcher:
exhibited rude and disrespectful behavior toward management; that more than once
[Hatcher] refused to complete assignments given to [her] at both Carver Park and the
Far West Estates. Additionally, when [Hatcher was] informed that priority work
order[s] needed to be closed in a timely manner, [she] responded in a negative tone.
Further, during the pre-discipinary conference [Hatcher] emphatically stated that
although hired as a Service Person V [she] will only do certain jobs. Consequently,
[Hatcher’s] conduct in these matters as outlined above is of a grievous nature,
violate[s] the Policies and Procedures that govern the conduct of employee[s] and is
of u[t]most concern, and cannot and will not be tolerated by the Authority.

(Doc. No. 26-14.) Based on those reasons, CMHA terminated Hatcher’s employment effective
October 23, 2019. (Id.)
Thus, having articulated a legitimate, nondiscriminatory reason for Hatcher’s termination, the
burden shifts back to Hatcher to demonstrate that CMHA’s proffered reason is pretextual. A plaintiff
may establish pretext by showing the defendant’s reason for termination: (1) lacked a basis in fact;
(2) did not actually motivate the adverse employment action; or (3) was insufficient to warrant the
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adverse employment action. Seeger v. Cincinnati Bell Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir.
2012). To show pretext, Plaintiff must show “more than a dispute over the facts upon which the
discharge was based.” Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 502 (6th Cir. 2007)
(quoting Braithwaite v. The Timken Co., 258 F.3d 488, 494 (6th Cir. 2001)). She must show
“sufficient evidence from which the jury could reasonably reject [Defendants’] explanation and infer
that [Defendants] intentionally discriminated against [her].” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 515-16 (1993).
Here, Hatcher makes no real argument about pretext, other than to assert that:
An employer’s proffered justification for adverse action is a pretext when it
demonstrates such ‘weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions’ that a reasonable factfinder could rationally [find] it unworthy of
credence. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Plaintiff has a case.
(Doc. No. 32, PageID# 664.) Hatcher offers no evidence whatsoever to demonstrate that CMHA’s
reasons either lacked a basis in fact, did not actually motivate its decision to terminate Hatcher, or
were insufficient to warrant the adverse action. Hatcher’s quotations from various Internet opinion
pieces and general social science research are irrelevant to the facts of Hatcher’s case. (Id. at PageID#
662-63.) Indeed, there is significant record evidence that Hatcher sent an insubordinate email to
Hernandez, that Hatcher repeatedly visited the CMHA Human Resources Department without either
notifying her supervisors of her location or without reporting to work altogether, and that she failed
to close work orders in a timely manner in compliance with CMHA policy. (See Doc. No. 32-8; Doc.
No. 26-4, ¶¶ 27-28.) There is further evidence that these facts motivated CMHA’s decision to
terminate Hatcher’s employment. (See Doc. No. 32-2, PageID# 742-48; Doc. No. 32-9.)
Hatcher offers no evidence to refute CMHA’s proffered reasons for terminating her
employment, or any other inferential evidence of race discrimination. See Sexstella-Wright v.
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Sandusky City School Dist., No. 1:05-cv-1136, 2006 WL 3526791, at *6 (N.D. Ohio Dec. 6, 2006),
aff’d, 258 Fed. App’x 837 (6th Cir. 2007). There are no allegations of any racial-related statements
made to or about Hatcher by any CMHA employee. There is no evidence of racial animus (beyond
Hatcher’s counsel’s conclusory assertions) towards Hatcher by any CMHA employee. Accordingly,
the Court concludes that Hatcher fails to establish that CMHA’s proffered reasons for her termination
were pretextual. The Court concludes that Hatcher’s discrimination claims fail and grants summary

judgment in CMHA’s favor.
B. Retaliation
CMHA argues that Hatcher fails to make a prima facie showing of retaliation because she
cannot prove that she engaged in protected activity, that CMHA knew of Hatcher’s protected activity,
or that there was a causal connection between Hatcher’s protected activity and her termination. (Doc.
No. 26-1, PageID# 213-14; Doc. No. 34, PageID# 813-14.) Further, CMHA argues that, even if
Hatcher could establish a prima facie case of retaliation, Hatcher fails to demonstrate that CMHA’s
proffered legitimate, nondiscriminatory reason for terminating her employment was pretext for
retaliation. (Id.) Hatcher argues that CMHA subjected her to a bait-and-switch by hiring her as a

plumber but demanding she work as a garbage collector instead. (Doc. No. 32, PageID# 665-67.)
She also claims that she complained that two white male plumbers were not tasked with garbage
collection and that they were assigned company tools and vehicles. (Id.) She further argues that her
refusal to pick up trash was a protected activity. (Id.) Hatcher argues that there was a causal
connection between her complaints and termination due to their close temporal proximity. (Id.)
Finally, Hatcher asserts that her argument as to pretext regarding her discrimination claims applies
with equal force to her retaliation claims. (Id.) The Court agrees with CMHA that Hatcher has failed

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to establish a prima facie case of retaliation because she has not shown that she engaged in protected
activity. Further, even if Hatcher could establish a prima facie case of retaliation, the Court concludes
that her claims nevertheless fail because she fails to establish that CMHA’s reasons for terminating
her employment were pretext for retaliation.
Title VII provides, in relevant part, as follows:
It shall be an unlawful employment practice for an employer to discriminate against
any of his employees . . . because [the employee] has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.

42 U.S.C. § 2000e-3(a). “Thus, this section prohibits an employer from retaliating against an
employee who has ‘opposed’ any practice by the employer made unlawful under Title VII; and
prohibits an employer from retaliating against an employee who has ‘participated’ in any manner in
an investigation under Title VII.” Univ. of Cincinnati, 215 F.3d at 578.
As with discrimination claims, a plaintiff may rely on either direct or circumstantial evidence
to establish that an employer engaged in retaliation. Daniels v. Pike Cty. Comm’rs, 706 F. App’x
281, 291 (6th Cir. 2017). Here, Hatcher has not offered any direct evidence in support of her
retaliation claim. Consequently, the McDonnell Douglas burden-shifting framework applies. See
Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013). “Under this framework, the plaintiff bears the
initial burden to establish a prima facie case of retaliation.” Goodsite v. Norfolk S. Ry. Co., 573 F.
App’x 572, 582 (6th Cir. 2014). “If the plaintiff succeeds in making out the elements of a prima facie
case, the burden of production shifts to the employer to articulate some legitimate, non-discriminatory
reason for its actions.” Id. Finally, “[i]f the defendant satisfies its burden of production, the burden

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shifts back to the plaintiff to demonstrate that the defendants’ proffered reason was not the true reason
for the employment decision.” Id.
“To establish a prima facie case of retaliation under Title VII, the plaintiff must demonstrate
that: (1) she engaged in activity protected by Title VII; (2) the defendants knew of her protected
activity; (3) thereafter, the defendants took ‘materially adverse’ actions against the plaintiff; and (4)
the protected conduct was a but-for cause of the adverse action.” Id.

With respect to the first element, “[w]hile a plaintiff need not file a formal charge of
discrimination with the EEOC in order to engage in statutorily protected activity for purposes of Title
VII, an employee may not invoke the protections of the statute merely ‘by making a vague charge of
discrimination.’” Weltman v. Panetta, No. 1:11CV 1229, 2012 WL 4955286, at *5 (N.D. Ohio Oct.
16, 2012) (quoting Fox v. Eagle Distributing Co., Inc., 510 F.3d 587, 591 (6th Cir. 2007)). “Rather,
the employee must specifically make a complaint of an ‘unlawful’ employment practice.” Id
(granting summary judgment with respect to plaintiff’s retaliation claim because “[h]e never told
Gibson or any of Gibson’s supervisors that he thought Gibson’s practice was unlawful or violated his
rights under Title VII”).3
For example, in Booker v. Brown & Williamson Tobacco Co., Inc., the plaintiff sent a letter

to the defendant’s human resources department alleging that his supervisor stated “I don’t know if
these people can comprehend asset management” in reference to African Americans and that recent
criticism of the plaintiff’s job performance was a “case of ethnocism.” 879 F.2d 1304, 1309 (6th Cir.
1989). In considering the plaintiff’s claim that the defendant had retaliated against him because of
his letter, the Sixth Circuit found that plaintiff had not engaged in any protected activity. With regard

3 However, the plaintiff need only have “a reasonable and good faith belief that the opposed practices were unlawful.”
Univ. of Cincinnati, 215 F.3d at 579 (citation omitted).
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to the allegation of “ethnocism,” the court held that the charge was too vague to invoke the protections
of Title VII. Id. at 1313. Also, the court found that the plaintiff’s complaint regarding his supervisor’s
racist statement did not allege that the defendant was “engaging in [an] unlawful employment
practice, but that one of its employees has a racial intolerance,” and therefore was not protected. Id.;
see also Addison v. Services to Enhance Potential, Western Wayne, No. 17-11278, 2018 WL
7048462, at *4 (E.D. Mich. Nov. 27, 2018) (“Addison’s complaint is not that STEP engaged in an

unlawful employment practice, which he opposed, but that McGuire was inappropriate and rude to
him because of his race. He does not explain how McGuire’s actions violated Title VII. Accordingly,
his threat to report her conduct was not protected activity under the opposition clause.”).
The Court concludes that Hatcher fails to establish that she engaged in protected activity. The
Court agrees with CMHA that Hatcher presents no evidence that she engaged in any activity that
could be considered protected under Title VII. For Hatcher’s statements to be protected, they must
amount to opposition to an unlawful employment practice by CMHA. Fox, 510 F.3d at 591 (citing
Booker, 879 F.2d at 1313). In other words, for Hatcher’s complaints to be deemed protected activity
under Title VII, Hatcher must have referenced alleged acts of discrimination by CMHA. Id. There
is only one complaint by Hatcher that could arguably invoke Title VII complaints: Hatcher’s

complaint to McCafferty. According to Hatcher, she told McCafferty that she, Hatcher, had issues
“as an African-American female being hired as a plumber but being asked to do job-related duties
that were not addressed during the job interview.” (Doc. No. 26-7, PageID# 492.) However, this
complaint relates only to Hatcher’s repeated dissatisfaction that CMHA expected her to complete
non-plumbing-related job duties. CMHA asking Hatcher to complete non-plumbing-related tasks is
not a violation of Title VII. Hatcher never complained to McCafferty—or anyone else at CMHA—

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that CMHA was engaged in an unlawful employment practice by asking a Black woman to
periodically assist in picking up trash and/or removing snow as part of her job duties. Although there
is a fact issue as to whether CMHA told Hatcher during her interview that Service Person Vs are
expected to perform non-plumbing tasks, there is absolutely no indication that CMHA based its
request that Hatcher sometimes pick up trash and/or remove snow on Hatcher’s race.
Further, Hatcher’s complaint in this case does not even rise to the vague charge of

discrimination at issue in Booker. At most, Hatcher has provided evidence that she made one
complaint to McCafferty in which Hatcher invoked her race and complained, again, about CMHA’s
insistence that Hatcher complete certain non-plumbing-related job duties. This single reference to
her race, combined with a repeated complaint about the correctness of CMHA’s decision to require
Hatcher to sometimes pick up trash and/or collect snow, is not a specific complaint about
discrimination. See also, e.g., Nasrallah v. Robert Half Int’l, No. 1:19-cv-00795, 2020 WL 1862657,
at *10 (N.D. Ohio Apr. 14, 2020) (concluding that the plaintiff’s objection to and correction of a
coworker’s statements regarding Arabs was not a specific complaint that the coworker had
discriminated against the plaintiff or had otherwise engaged in any other unlawful employment
practice).

There is no other evidence in the record that Hatcher made any complaint that could be
construed to fall within Title VII’s protection. The remainder of Hatcher’s complaints to CMHA
personnel involved her repeated complaints about picking up trash, not receiving a company vehicle,
and not being provided with company tools. (Id. at PageID# 490, 492.) Such complaints contest the
“correctness of a decision made by [Hatcher’s] employer,” rather than assert discrimination under
Title VII. Willoughby v. Allstate Ins. Co., 104 Fed. App’x 528, 531 (6th Cir. 2004). Thus, the Court

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concludes that Hatcher fails to establish the first prong of her prima facie case for retaliation and,
therefore, her retaliation claims necessarily fail.
Moreover, even if the Court assumes that Hatcher could establish a prima facie case of
retaliation, her retaliation claims still fail because she does not demonstrate that CMHA’s proffered
reasons for terminating her employment were pretextual. Hatcher refers the Court back to her
argument regarding pretext as set forth in her discussion of her discrimination claims. (Doc. No. 32,

PageID# 667.) Therefore, for the reasons discussed in Section III.A.2., supra, the Court concludes
that Hatchers fails to offer any evidence of pretext. The Court concludes that Hatcher’s retaliation
claims fail and grants summary judgment in CMHA’s favor.
IV. Conclusion
For all the reasons set forth above, CMHA’s Motion for Summary Judgment (Doc. No. 26) is
GRANTED.
IT IS SO ORDERED.

s/Pamela A. Barker
PAMELA A. BARKER
Date: June 13, 2022 U. S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10370967. Public record. Not legal advice.