Sutton v. Ohio Department of Rehabilitation and Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

PAMELA SUTTON, CASE NO. 3:21 CV 962

Plaintiff,

v. JUDGE JAMES R. KNEPP II

OHIO DEPARTMENT OF

REHABILITATION AND MEMORANDUM OPINION AND

CORRECTIONS, ORDER

Defendant.

INTRODUCTION

This case arises out of Plaintiff Pamela Sutton’s (“Sutton”) claim that her current

employer, Defendant Ohio Department of Rehabilitation and Corrections (“ODRC”), committed

reverse race discrimination and retaliation against her, and created a hostile work environment,

all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.

Jurisdiction is proper under 28 U.S.C. § 1331. The matter now before the Court is Defendant’s

Motion for Summary Judgment (Doc. 14). Plaintiff opposed (Doc. 18), and Defendant replied

(Doc. 19). For the reasons set forth below, Defendant’s Motion (Doc. 14) is granted.

BACKGROUND

Viewing the facts in the light most favorable to Plaintiff, the background of this case is as

follows:

Parties Involved

Plaintiff Sutton, a Caucasian woman (Sutton Depo., at 59)1, is a special education

intervention specialist working for Defendant ODRC. Id. at 28. In this role, she works with

teaching staff to assist with the instruction of inmates who have learning disabilities and behavior

disorders, diagnoses the individual needs of students, including the development of

individualized education plans (“IEP”), and conducts counseling pertinent to the learning and

educational program. (Doc. 15-1). Sutton works at three Defendant facilities, Allen-Oakwood

Correctional Institution (“AOCI”), Toledo Correctional Institution (“TOCI”), and Lorain

Correctional Institution (“LOCI”); AOCI is her primary location. (Doc. 18-1, at 1). Plaintiff has

held this position since 2014, and the events underlying this action arise out of allegations of

discrimination and retaliation while in this role. See generally, Doc. 1.

Initial Incidents and 2015 EEO Mediation

The allegations of discrimination and retaliation are based upon interactions between

Sutton and her immediate supervisor, Angela Dartis (“Dartis”), an African American woman.

See generally, Doc. 1; Sutton Depo., at 31. Initially, the working relationship between Sutton and

Dartis was “okay.” (Sutton Depo., at 33). Sutton began “having problems in the fall of 2014” that

carried over into 2015. Id. Sutton testified that, at that time, Dartis was not allowing her adequate

time to test or work with her students. Id. at 34-35. Dartis, citing Sutton’s failure to track “red

flag students” per policy, along with her failure to utilize the proper chain of command for

communication, filed two corrective counseling reports against Sutton in June of 2015. (Doc. 18-

2). The increasingly strained relationship between Sutton and Dartis resulted in a complaint by

1. Sutton’s Deposition is located at ECF Doc. 15.

Sutton to Defendant’s Equal Employment Office which was resolved by mediation on August

13, 2015. (Doc. 15-2).

The mediation agreement provided for Dartis to remove the two corrective counseling

reports concerning Sutton from the supervisor’s file, for future IEP discussions to take place via

telephone if needed, and for Sutton to complete training for various administrative tasks. Id.

Additionally, a distribution list was created for Sutton to use for the purpose of submitting her

schedule for approval. Id. In exchange, Sutton agreed to withdraw her EEO complaint. Id.

In October 2015, Sutton filed an incident report with Defendant claiming workplace

violence after a weekly meeting in Dartis’ office. (Doc. 18-3). This meeting, which took place on

October 5, involved a third party: the AOCI guidance counselor. Sutton stated she thought the

behavior of Dartis and the guidance counselor during this meeting “was unprofessional” and she

felt “threatened, intimidated, and embarrassed” by the presence of a third party. Id.

Early in 2016, Defendant changed the supervisory structure over Sutton. In a letter, Trent

Patterson, the Assistant Superintendent of the Ohio Central School System (the school district

operated by Defendant, “OCSS”), stated that “effective January 4, 2016; Pam Sutton,

Intervention Specialist for OCSS, will report directly to Michelle McCollister, OCSS

Professional Development Director. . . . This will be effective until further notice.” (Doc. 15-3).

This change in supervision for Sutton was further refined by an email dated January 19, 2016

from Patterson to multiple ODRC employees, including Sutton, Dartis, and McCollister. This

email laid out Patterson’s expectations for how and to whom Sutton would report her various job

responsibilities. (Doc. 15-4). At the end of the message, Patterson reiterated that the arrangement

was temporary, and that the situation “will revert to Pam [Sutton] reporting directly to Principal,

Ms. Dartis, upon resolving the complaints and allegations that are pending.” Id.

As a result, Sutton was under the direct supervision of Michelle McCollister, a Caucasian

female, starting in January 2016. (Sutton Depo., at 84). During this time, Sutton filed no

complaints regarding interactions with her supervisor. Additionally, three of Sutton’s evaluations

from that period (2015/16, 2016/17, and 2018/19 – all of which are signed by McCollister)

indicate that Sutton never rated below the level of “meets expectations.” (Doc. 18-4).

2019-20 Performance Evaluation and Subsequent Review

In August 2019, direct supervision of Sutton reverted to Dartis. (Doc. 18-6, at 2; Sutton

Depo., at 47). Sutton testified that when this occurred, she “expressed [her] concern” to the

OCSS superintendent, Jennifer Sanders. (Sutton Depo., at 47). She was informed that because

“there wasn’t enough paperwork to defend” Dartis’ previous removal as her supervisor, the pre-

2016 status quo would be restored. Id.; see also Smith Depo., at 45-462.

On March 3, 2020, Dartis completed her first evaluation of Sutton after being returned to

her supervisory role. This evaluation included summary scores in two overarching areas:

position-based competencies and goals and performance expectations. For both of these

categorical scores, as well as the overall performance rating, Dartis scored Sutton as “needs

improvement.” (Doc. 16-5, at 2-3). In response, Sutton initiated the available review process.

(Doc. 15-6). In her review request, Sutton noted that “Ms. Dartis has never held a meeting with

me expressing her concerns with communications. She’s never explained her expectations to me

or that she was displeased.” Id. at 1. Additionally, Sutton stated Dartis was “using the Incident

Reports that I have written against her . . . as evidence in my evaluation. She is retaliating against

me for writing reports for workplace violence.” Id. at 2.

2. Smith’s Deposition is located at ECF Doc. 16.

The review of Sutton’s 2019/20 performance evaluation resulted in the raising of the

categorical scores to “meets expectations.” Id. at 3. Cori Smith, the Deputy Warden for Special

Services at AOCI, noted in the review that “[t]here was no documentation to show Ms. Sutton

was made aware of any performance concerns prior to this evaluation[.]” Id. Smith did not

address Sutton’s allegations in her review request regarding Dartis’ retaliatory motive. Id.

OCRC Charge Filed, 2020 Incident Reports

On July 2, 2020, Sutton filed a charge of discrimination with the Ohio Civil Rights

Commission. (Doc. 18-6). In this charge, Sutton cited the 2015 EEO complaint she filed against

Dartis which ultimately led to the change in supervision discussed above. Id. at 2. Sutton noted

Dartis’ return to a supervisory role over her, Sutton’s own “several Work Place [sic] Violence

complaints,” and Dartis’ poor 2019/20 evaluation of Sutton as evidence of ongoing

discrimination. Id. Ultimately, Sutton asserted she believed Dartis was “retaliating against [her]

for the previous EEO and [Dartis’] removal as my supervisor.” Id.

In the months that followed this charge, a flurry of Incident Reports passed between

Sutton and Dartis. On August 5, 2020, Dartis authored two incident reports against Sutton: one

for failing to follow the proper call-off procedure and one for failing to submit a request for leave

pursuant to policy. (Doc. 18-7). Sutton seemingly disputes the validity of the allegations in one

incident report. See Sutton Depo., at 102 (“I didn’t put [the sick request] in right when I came

back, but put it in before the pay period was over, which is what you’re supposed to do.”). On

August 13, 2020, Sutton filed an incident report against Dartis stating Dartis was abusing her

investigatory powers: “Ms. Dartis has made this a common practice with me in the past by

writing me up and conducting her own investigations and then she does not turn the paperwork

in.” (Doc. 16-8). On September 18, 2020, Dartis filed an incident report wherein she claimed

Sutton did not complete a necessary task to support an ongoing audit of the special education

files. (Doc. 17-3). On October 14, 2020, Sutton filed an incident report against Dartis claiming

workplace violence and an equal employment violation. (Doc. 15-7). Sutton asserted she was

“treated differently because of [her] protected class.” Id. at 1. Moreover, she stated the conduct

was “causing [her] emotional harm and trauma, as [Dartis] has called [her] a staff-splitter and

instructed staff not to talk to [her] and relayed to them that they are being treated differently due

to their association with [her].” Id. Sutton further asserted Dartis had filed the incident reports as

retaliation for her EEO complaints and “this is not the way she treats other educators in similar

situations”. Id. Each of the three incident reports Dartis filed against Sutton resulted in a “Q&A

session”, but not in discipline. See Sutton Depo., at 57, 60, 76.

Early 2021

In March 2021, Dartis completed Sutton’s annual evaluation. (Doc. 15-8). She scored

Sutton at “meets expectations” for all categories. See id. Sutton did not challenge this evaluation.

However, on May 3, 2021, she filed an incident report against Dartis, once again claiming

workplace violence. (Doc. 15-9). Sutton cited Dartis’ denial of “consideration for extra time for

testing/report writing, etc.” as retaliation for earlier reports. See id. at 1 (stating Dartis was

“creating a situation where I cannot be successful. . . . This is retaliation for the EEO I have filed

against her.”).

On May 21, 2021, Dartis completed an incident report stating that Sutton had not

completed a requested draft IEP. (Doc. 18-9). Sutton testified that no supervisor or principal

other than Dartis had ever asked her for a draft IEP before and Dartis had only requested it once

before. (Sutton Depo., at 78-82). This incident report resulted in a notice of written reprimand.

(Doc. 15-13).

STANDARD OF REVIEW

Summary judgment is appropriate where there is “no genuine issue as to any material

fact” and “the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

When considering a motion for summary judgment, the Court must draw all inferences from the

record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). The Court is not permitted to weigh the evidence or

determine the truth of any matter in dispute; rather, the Court determines only whether the case

contains sufficient evidence from which a jury could reasonably find for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The moving party has the burden

of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This burden “may be discharged by

‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to

support the nonmoving party’s case.” Id. Further, the nonmoving party has an affirmative duty to

direct the Court’s attention to those specific portions of the record upon which it seeks to rely to

create a genuine issue of material fact. See Fed. R. Civ. P. 56(c)(3) (noting the court “need

consider only the cited materials”).

DISCUSSION

Sutton alleges Defendant discriminated against her based upon her race in violation of

Title VII. Sutton further alleges she was and continues to be a victim of retaliation for engaging

in protected activity in response to Defendant’s alleged discriminatory conduct. Finally, Sutton

claims the whole of Defendant’s conduct has created a hostile work environment. For the reasons

discussed below, the Court finds Defendant is entitled to summary judgment on each claim.

Reverse Race Discrimination

In her first cause of action, Sutton alleges reverse race discrimination under Title VII of

the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e, et seq. (Doc. 1, at 5). When a

plaintiff is unable to establish direct evidence of discrimination, they must avail themselves of

the burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973), thereby using circumstantial evidence to establish a prima facie case for discrimination.

To meet this burden, a plaintiff must point to evidence that shows (1) she is a member of a

protected class, (2) she suffered an adverse employment action, (3) she is qualified for the

position she currently holds, and (4) she was treated differently than similarly situated

employees. Wright v. Murray Guard, Inc., 455 F.3d 702, 707 (6th Cir. 2006).

“The Sixth Circuit has adapted this framework in cases alleging reverse-race

discrimination, requiring that plaintiffs establish the first prong of a prima facie case by showing

‘background circumstances to support the suspicion that the defendant is that unusual employer

who discriminates against the majority.’” Goller v. Ohio Dep’t Rehab. & Corr., 285 F. App’x

250, 255 (6th Cir. 2008) (quoting Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 255 (6th Cir.

2002)). Sutton, therefore, must establish her first claim based upon this modified McDonnell

Douglas framework. Beyond the added burden for the first prong, “[t]he second and third prongs

remain familiar: that [she] was qualified for the job and suffered an adverse employment action,

respectively. . . . Under the fourth prong, ‘[she] must show that the defendant employer treated

differently similarly situated employees of a different race.’” Goller, 285 F. App’x at 255

(quoting Arendale v. City of Memphis, 519 F.3d 587, 603 (6th Cir. 2008)). Defendant, in its brief

in support of the motion for summary judgment, does not challenge Sutton’s qualification for her

position or her treatment compared to similarly situated employees, and makes only a cursory

challenge to the question of Sutton’s racially-protected status. (Doc. 14-1, at 10).3

Adverse Employment Action

The parties focus their arguments on whether Sutton has suffered an adverse employment

action sufficient to satisfy the modified McDonnell Douglas framework. When considering

substantive discriminatory conduct, a plaintiff suffers an adverse employment action in the

following circumstances:

(1) a termination of employment; (2) a demotion resulting in loss of benefits or

salary reduction; (3) conferring of a less distinguished title; (4) a material loss of

benefits; (5) significantly diminished material responsibilities; or (6) other factors

unique to the particular situation.

Jones v. Butler Metro. Hous. Auth., 40 F. App’x 131, 136 (6th Cir. 2002) (citing Kocis v. Multi-

Care Mgmt., Inc., 97 F.3d 876, 886-87 (6th Cir. 1996)). Furthermore, and of particular guidance

to the instant case, “a written reprimand, without evidence that it led to a materially adverse

consequence such as lowered pay, demotion, suspension, or the like, is not a materially adverse

employment action.” Creggett v. Jefferson Cnty. Bd. of Educ., 491 F. App’x 561, 566 (6th Cir.

2012).

Sutton’s claims of adverse employment actions are rooted in a litany of varied conduct

undertaken by Dartis for more than seven years. This conduct can be distilled to three types of

3. In its brief in support of the Motion for Summary Judgment, Defendant notes “Sutton may

very well not meet the first prong of the modified reverse race discrimination prima facie case

because only [AOCI] Warden Edward Sheldon (Caucasian) has the authority to discipline or

discharge [AOCI] employees.” (Doc. 14-1, at 10). Defendant, however, chooses to “not belabor

the argument because Sutton cannot establish . . . [that] she has [] sustained an adverse

employment action.” Id. Sutton, in a footnote in her opposition brief, responds to this by

asserting that the cat’s paw theory establishes her protected status. (Doc. 18, at 14, n.1). Based

upon the parties’ arguments, the Court will focus solely on the question of whether Sutton

suffered an adverse employment action as a result of Dartis’ conduct.

action: clerical, investigatory, and personal. As discussed below, even viewing the evidence in

the light most favorable to Sutton, none rises to the level of adverse employment action.4

Sutton claims Defendant, through Dartis, discriminated against her on the basis of her

race when Dartis’ actions “impair[ed] [her] from doing [her] job.” (Sutton Depo., at 62).

Examples given for this allegation focus upon Dartis’ failure to allow Sutton to set her work

schedule as needed to properly serve her students. Sutton cites Dartis not approving her work

schedule following the August 2015 mediation which required Dartis to do so (id. at 39), and

Dartis’ more recent lack of consideration for the extra time Sutton believed she needed for

testing and creating reports (Doc. 15-9, at 1). Sutton, however, has not established that the

complained-of conduct rises to the level of an adverse employment action. Even construing the

facts in the light most favorable to Sutton, it remains that her pay, title, and job duties have not

changed as a result of Dartis’ conduct. Furthermore, the Sixth Circuit has held that, “teaching a

normal course load, within normal working hours, with no showing of special harm” does not

qualify as an adverse employment action. Kubik v. Cent. Mich. Univ. Bd. of Trs., 717 F. App’x

577, 583 (6th Cir. 2017); see also, e.g., Johnson v. United Parcel Serv., Inc., 117 F. App’x 444,

450 (6th Cir. 2004) (holding that changes in an employee’s schedule, “absent changes in salary

4. Section E of Sutton’s opposition brief cites specific ongoing acts as evidence Dartis

“[c]ontinues to [p]unish Sutton [b]ased on Sutton’s [r]ace.” (Doc. 18, at 12-13). The entirety of

the conduct cited in this section occurred after the August 1, 2022 discovery deadline in this case

and was therefore not cited in the Complaint. See Minute Entry of March 23, 2022, Telephone

Conference; Doc. 1.. However, Sutton never moved for leave to amend her complaint, in

accordance with Rule 15(a)(2) of the Federal Rules of Civil Procedure, to include these most

recent occurrences. Defendant objects to their consideration on this basis. See Doc. 19, at 10 n.2.

Sutton’s use of her opposition brief to introduce new facts to support these claims falls afoul of

the accepted standard of fairness. Hubbard v. Select Portfolio Servicing, Inc. 2017 WL 3725475

at *3 (E.D. Mich.) (“[Plaintiff] cannot amend his complaint, which is the operative pleading in

this matter, by simply including new factual allegations in his briefing in opposition to the

motions for summary judgment.”). Therefore, the Court declines to consider these new factual

allegations.

or the number of hours of work . . . would not normally classify as potential adverse employment

actions[]”); Broska v. Henderson, 70 F. App’x 262, 267 (6th Cir. 2003) (holding that allegations,

which included defendant’s singling out plaintiff for “intense supervision and criticism” did not

rise to adverse employment action, because plaintiff “ha[d] not been terminated or demoted, or

had his pay reduced, benefits lessened, or responsibilities diminished[]”). Interference of the kind

described by Sutton, however inconvenient, does not fall within the scope of adverse

employment action under Title VII.

Sutton further asserts that she has previously suffered and continues to suffer adverse

employment actions as a result of Dartis’ investigatory conduct. This conduct included the

creation of various “incident reports” (Doc. 15-7, at 1), the administration of “corrective

counseling” (Sutton Depo., at 41), and the filing of a negative annual review (Doc. 16-5). Sutton

herself testified that, while the ultimate result from an incident report could be discipline, the

creation of an incident report is not discipline per se. (Sutton Depo., at 65). Furthermore, Cori

Smith, the Deputy Warden of Special Services at AOCI during much of the time when the

alleged conduct occurred, attested “Sutton ha[d] not received any discipline” while Smith was

serving in that capacity. (Doc. 16-6, at 2). Smith confirmed in her deposition that she was

unaware of any discipline taken against Sutton up until May 22, 2022, when Smith transferred

out of the Deputy Warden post. (Smith Depo., at 73-74).

These examples of investigatory employer conduct, i.e., incident reports that do not result

in formal discipline, do not rise to the level of adverse employment action. See Creggett, 491 F.

App’x at 566. Furthermore, Sutton continues to be employed by Defendant in the same position

she has held since 2014. She has not suffered a loss of pay. She has not been demoted in title or

experienced a reduction in material responsibilities. Thus, Sutton has not provided evidence to

create a genuine issue of material fact that Defendant’s investigatory conduct resulted in an

adverse employment action.

Sutton also asserts Dartis, through her conduct, attempted to “intimidate” Sutton. (Doc.

18-3). This specific allegation is linked to the meeting on October 5, 2015, wherein a third party

was present and taking notes during the session. However, Sutton does not provide evidence of

any substantive employment action that resulted from this corrective counseling session. In fact,

Sutton testified that, because of that particular investigation, “[Defendant] took [Dartis] away as

my supervisor.” (Sutton Depo., at 40). The only substantive result from this allegedly

intimidating encounter was a change to Dartis’ material responsibilities, not Sutton’s.

Sutton asserts the record demonstrates conduct sufficient to satisfy the adverse

employment action prong of the modified McDonnell Douglas framework. However, what the

record actually provides is, in effect, a collection of unpleasant conduct between an employee

and a supervisor – none of which rises to the level of adverse employment action. Simply put,

although this Court does not doubt the challenging nature of the working relationship between

Sutton and Dartis, and that therefrom Sutton has suffered considerable frustration with her job,

she points to nothing in the record to establish she suffered an adverse employment action as

defined by federal law. Therefore, having failed to meet the burden of establishing a prima facie

case under the modified McDonnell Douglas framework, Sutton’s cause of action for reverse

race discrimination cannot survive summary judgment.

Retaliation

Sutton also alleges retaliation in violation of Title VII. (Doc. 1, at 6). “When an employee

alleges that an employer has both discriminated and retaliated against [her] in violation of Title

VII, the district court must analyze these claims separately under Title VII, as the elements (and

standards) of each claim are distinct.” Laster v. City of Kalamazoo, 746 F.3d 714, 732 (6th Cir.

2014). Sutton asserts she participated in protected activity by filing incident reports and EEO

complaints with Defendant concerning Dartis’ conduct. She further asserts that, as a result of this

participation in protected activity, she has suffered and continues to suffer adverse actions.

To establish a prima facie showing of retaliation in violation of Title VII, a plaintiff must

establish that “(1) [she] engaged in activity protected by Title VII; (2) [her] exercise of such

protected activity was known by the defendant; (3) thereafter, the defendant took an action that

was ‘materially adverse’ to [her] and (4) a causal connection existed between the protected

activity and the materially adverse action.” Laster, 746 F.3d at 730 (quoting Jones v. Johanns,

264 F. App’x 463, 466 (6th Cir. 2007)). Once again, a burden shifting framework is employed,

wherein after the plaintiff establishes a prima facie case, “the burden shifts to the employer to

articulate a ‘legitimate, nondiscriminatory reason for its actions.’” Laughlin v. City of Cleveland,

633 F. App’x 312, 315 (6th Cir. 2015) (quoting Imwalle v. Reliance Med. Prods., Inc., 515 F.3d

531, 544 (6th Cir. 2008)). Should the employer succeed in this showing, the plaintiff then has the

burden to show that the employer’s proffered reason was mere pretext. Laughlin, 633 F. App’x at

315.

Defendant concedes Sutton satisfies the first prong of the prima facie retaliation claim.

(Doc. 14-1, at 10). Sutton points to the mediation agreement, signed by herself and Defendant, as

evidence of Defendant’s awareness of Sutton’s participation in a protected activity sufficient to

satisfy the second prong. (Doc. 15-2). Defendant presents no argument concerning the fourth

prong (causation); for the purpose of summary judgment, Sutton has no reciprocal duty to

address this point. The Court therefore focuses on the third prong: whether Sutton has

established a question of fact regarding a materially adverse action for purposes of a retaliation

claim.

Materially Adverse Action

Following Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006),

the scope of conduct forbidden by 42 U.S.C. §§ 2000e et seq. differs depending upon the cause

of action. The difference is rooted in the policy underlying each part of Title VII: “[t]he

substantive provision seeks to prevent injury to individuals based on who they are, i.e., their

status. The antiretaliation provision seeks to prevent harm to individuals based on what they do,

i.e., their conduct.” Burlington N., 548 U.S. at 63. Therefore, when considering whether Sutton

has established the materially adverse action prong, retaliatory conduct falls within a broader

scope than substantive discriminatory conduct.

“[O]ne cannot secure [Congress’s intent for Title VII’s antiretaliation provision] by

focusing only upon employer actions and harm that concern employment and the workplace. . . .

An employer can effectively retaliate against an employee by taking actions not directly related

to his employment[.]” Id. This directive broadens the geographic scope of prohibited conduct

beyond the workplace and subsumes various expressions of employer/employee conduct that fail

to rise to the level of a so-called “ultimate employment action” (i.e., dismissal, reduction in pay,

loss of benefits, etc.). However, Title VII’s antiretaliation provision protects an individual only

“from retaliation that produces an injury or harm”, and “[a]n employee’s decision to report

discriminatory behavior cannot immunize that employee from those petty slights or minor

annoyances that often take place at work and that all employees experience.” Id. at 67-68. To

successfully establish a retaliation claim, a plaintiff must demonstrate her “employer’s actions

[were] harmful to the point that [those actions] could well dissuade a reasonable worker from

making or supporting a charge of discrimination.” Id. at 57.

Because the scope of adverse retaliatory conduct is broader than that of adverse

discriminatory conduct, whenever a plaintiff successfully establishes an adverse employment

action that rises to the level required by the substantive discrimination claim, they have per se

satisfied the same showing for a retaliation claim. See, e.g., Redlin v. Grosse Point Pub. Sch.

Sys., 921 F.3d 599, 614 (6th Cir. 2019) (holding that by making “the harder showing required for

her gender discrimination claim,” the plaintiff “also satisfies the third element of her prima facie

[Title VII retaliation] case.”). The inverse, however, is not true. The Court therefore examines

whether Sutton has identified conduct that, while insufficient to meet the burden for substantive

discrimination, might nevertheless fall within the broader scope of materially adverse actions in

the retaliation context.

With respect to her retaliation claim, Sutton cites (1) Dartis’ “several disciplinary

investigations . . . for leave violations and changing her schedule”; (2) Dartis’ “fail[ure] to

approve Sutton’s travel requests timely ensuring Sutton will be scrambling to get to other

institutions timely [and] providing opportunity for Dartis to initiate more discipline”5; (3) Dartis’

poor performance evaluation of Sutton, “[w]hich led to a lengthy evaluation review in which

Sutton had to defend her work product”; and (4) being ostracized at work. (Doc. 18, at 18-19).

Following the antiretaliation guidance refined by the Supreme Court and the Sixth Circuit, the

Court finds that – although a closer call than Plaintiff’s substantive discrimination claim –

Plaintiff also fails to meet her burden of establishing materially adverse action for a Title VII

retaliation claim.

5. As set forth supra, the Court will not consider the facts Sutton cites post-dating the discovery

deadline in this case.

Negative Performance Evaluation

Sutton cites the 2019/2020 negative performance evaluation completed by Dartis. But the

Sixth Circuit has been clear that a negative evaluation, absent some impact on an employee’s job

(in the form of wages, or some effect on advancement), is not a materially adverse action even in

the retaliation context. Compare, e.g., Blizzard v. Marion Tech. Coll., 698 F.3d 275, 290 (6th

Cir. 2012) (“Generally, a negative employment evaluation does not rise to this level unless it

‘significantly impact[s] an employee’s wages or professional advancement.’”) (quoting James v.

Metro. Gov’t of Nashville, 243 F. App’x 74, 79 (6th Cir. 2007); with Henry v. Abbott Lab’ys, 651

F. App’x 494, 504-05 (6th Cir. 2016) (finding material adversity where there was evidence a

negative employment evaluation “renders an employee ineligible for a promotion and therefore

affects her advancement potential”); Kyle-Eiland v. Neff, 408 F. App’x 933, 941-42 (6th Cir.

2011) (“[A] negative performance evaluation may rise to the level of an adverse action if the

employee can point to a tangible employment action that she alleges she suffered or is in

jeopardy of suffering because of the downgraded evaluation. In this case, the PIP may have led

directly to [the plaintiff’s] dismissal from CLEX.”) (internal quotation omitted); Kessler v.

Riccardi, 363 F. App’x 350, 362 (6th Cir. 2010) (finding “being excluded from career-building,

albeit unfunded, grant work” sufficient to establish a question of fact regarding material

adversity). Sutton has pointed to no such significant impact on her employment resulting from

the negative performance evaluation which was later modified. As such, the Court finds it is not

a materially adverse action.

Disciplinary Investigations / Incident Reports

Sutton cites Dartis’ incident reports and investigations as evidence of materially adverse

action. As noted, on August 5, 2020, Dartis completed two incident reports, one citing failure to

follow the proper call-off procedure, and one citing failure to submit leave. See Doc. 18-7. On

September 18, 2020, Dartis completed an incident report asserting Sutton had failed to complete

a task necessary for an audit of the special education files. (Doc. 17-3). And finally, on May 21,

2021, Dartis completed an incident report stating that Sutton had not completed a requested draft

IEP. (Doc. 18-9). Only this final incident report resulted in a notice of written reprimand. (Doc.

15-13). The Court finds none of the cited events rise to the level of a materially adverse action

individually or collectively. See Spence v. Donahoe, 515 F. App’x 561, 575 (6th Cir. 2013) (even

where a single action may not be materially adverse “multiple incidents when taken together

might dissuade a reasonable worker from making or supporting a discrimination charge.”)

(internal citation and quotation omitted).

The Sixth Circuit has explained that where a plaintiff “was never punished as a result of

the written reprimand” and “has been unable to show any material adverse consequences

resulting from the written reprimand”, there is “no materially adverse employment action”. Davis

v. Metro Parks & Recreation Dep’t, 854 F. App’x 707, 716 (6th Cir. 2021) (internal quotation

omitted); see also Sanchez v. Brennan, 2021 WL 1634572, at *3 (N.D. Ohio) (“[A] letter of

warning on its own is not an adverse employment action here. Some other consequence is

needed.”); Leligdon v. McDonald, 2016 WL 10590098, at *15 (N.D. Ohio) (“Threats of

discipline, Reports of Contact, Letters of Counseling, Letters of Expectation, removal from or

refusal to appoint to voluntary boards and committees, failure to approve official time for non-

essential training, charging minimal amounts of AWOL time when the leave policy was

admittedly not followed, setting general policies defining expected reasonable time frames for

preparing EEOC Complaints, disagreements with supervisory positions within the chain of

command, [and] restricting use of email settings that interfere with a supervisor’s ability to

address issues and concerns, are not materially adverse actions under the relevant standards.”);

Cotton v. City of Franklin, 2010 WL 3521751, at *17 (M.D. Tenn.) (“The Court agrees that the

alleged disciplinary action does not constitute a materially adverse action of the type that will

sustain a claim for retaliation, because no reasonable employee would have found the aborted

written reprimand to be adverse to the extent that it would deter a reasonable worker from

making or supporting a charge of discrimination. In fact, it did not dissuade Cotton from filing

another EEOC charge and lawsuit.”). Other circuit courts agree. See Hall v. Dekalb Cnty. Gov’t,

503 F. App’x 781, 790 (11th Cir. 2013) (“Plaintiff’s written counseling . . . was not materially

adverse because he failed to allege that it had any significant impact on his employment.”);

Lewis v. Wilkie, 909 F.3d 858, 868 (7th Cir. 2018) (finding incidents of an employee “being

falsely accused or receiving unneeded instructions” from a supervisor “may have resulted in

annoyance and frustration, but . . . did not cause the kind of harm that would dissuade a

reasonable employee from engaging in protected activity” where the employee “received no

further discipline nor suffered any lasting detriment related to any of these incidents”); Poullard

v. McDonald, 829 F.3d 844, 856 (7th Cir. 2016) (“Threats of unspecified disciplinary action do

not constitute adverse actions, at least not in this context. . . . [These threats] had no effect on

Poullard’s compensation or career prospects. While we do not doubt that the possibility of

discipline can be stressful, we have previously held that this kind of threat is not enough to

support a claim for retaliation.”).

However, reprimands that would normally be nonmaterial may amount to materially

adverse actions when “related to a larger pattern of intimidation by constantly reprimanding [the

plaintiff].” Taylor v. Geithner, 703 F.3d 328, 338 (6th Cir. 2013).The Sixth Circuit has also

explained, in context, that selective enforcement of policies and harsher punishment for the

plaintiff compared to coworkers, denial of training opportunities, and a frivolous investigation

were materially adverse actions. Laster, 746 F.3d at 732. It also holds that “more frequent

disciplinary writeups of plaintiff for trivial matters and unwarranted criticism of plaintiff’s work”

may satisfy the “materially adverse action” element. Hubbell v. FedEx SmartPost, Inc., 933 F.3d

558, 570 (6th Cir. 2019). Meanwhile, actions such as “not asking plaintiff to serve as a

representative at conferences, preventing plaintiff from contacting the State’s licensing

consultant without prior permission, prohibiting plaintiff from observing arbitration process

involving her subordinates, excluding plaintiff from hiring process, requiring plaintiff to seek

permission before working overtime, and preventing plaintiff from meeting with staff members

outside the presence of their supervisors were “slights” that “[did] not rise to the level of a

materially adverse employment action”. Lahar v. Oakland Cnty., 304 F. App’x 354, 357-58 (6th

Cir. 2008).

The Sixth Circuit has further explained in a different context that “[i[t seems unlikely the

fact of [an] investigation [into alleged wrongdoing] itself is sufficient to satisfy the materially

adverse employment action element—rather it appears the investigation at worst is nothing more

than a petty slight, minor annoyance, or simple lack of good manners.” Murphy v. Ohio State

Univ., 549 F. App’x 315, 321 (6th Cir. 2013).

Here, Sutton testified that incident reports are not discipline (though can result in

discipline). (Sutton Depo., at 58, 60, 61). She further testified that each resulted in a “question

and answer” session, which is also not discipline, but can result in discipline. Id. at 60. And no

doubt these allegations and investigations caused Sutton frustration and stress. But importantly,

she has pointed to no materially adverse consequence resulting from either the incident reports,

or the single written reprimand. In her own written incident reports, Sutton notes her subjective

belief that Dartis is “retaliating against me for writing reports for workplace violence,” (Doc. 15-

6, at 2), and Dartis is “retaliating against me for the previous EEO and her removal as my

supervisor.” (Doc. 18-6, at 2). These conclusory assertions fail to establish that Sutton suffered

materially adverse action. Title VII’s antiretaliation provision protects an individual only “from

retaliation that produces an injury or harm.” Id. at 67. To successfully establish a retaliation

claim, a plaintiff must demonstrate their “employer’s actions [were] harmful to the point that

[those actions] could well dissuade a reasonable worker from making or supporting a charge of

discrimination.” Id. at 57. Consistent with the caselaw cited above, the Court finds Plaintiff has

not established a materially adverse action based on the incident reports, investigations, or

reprimand. See Lyons v. Mich. Dep’t of Corr. 2019 WL 1002490, at *5 (E.D. Mich.) (“Even

considering these incidents together, plaintiff does not show a pattern of intimidation through

constant reprimanding or that taken together would indicate these actions were materially

adverse. Over the course of twenty months, plaintiff was on the receiving end of the individual

defendants’ conduct six times, including the issuance of the one-day suspension. He has not

shown that there is an environment of constant reprimanding.”).

Ostracization

Finally, Sutton cites her ostracization by coworkers as a materially adverse action. She

testified Dartis’ conduct included “telling other people not to talk to me.” (Sutton Depo., at 62).

She said this conduct “impact[ed] the operation of the facility and our education department[;]”

describing the situation as one where she felt “ostracized by the people that [she] work[ed] with

because they’re afraid to talk to [her] because they don’t want to be next.” Id.

But courts have found such actions do not rise to the level of materially adverse action.

See Creggett, 491 F. App’x 561, 569 (“Creggett’s perception that [his supervisor] shunned and

avoided him is not a materially adverse action.”); Wierengo v. Akal Security, Inc., 580 F. App’x

364, 373 (6th Cir. 2014) (plaintiff’s claims that she was “shunned and ostracized” by supervisors

and co-workers and that thirteen co-workers filed a complaint against her did not “rise to the

level of” adverse employment actions, where she did not allege these incidents “resulted in any

sort of injury or harm to her professionally or personally”) (internal quotation marks and citation

omitted)); see also Stewart v. Mississippi Transp. Comm’n, 586 F.3d 321, 332 (5th Cir. 2009)

(allegations by a plaintiff that “she was chastised by superiors and ostracized by co-workers . . .

do not rise to the level of material adversity but instead fall into the category of ‘petty slights,

minor annoyances, and simple lack of good manners’ that the Supreme Court has recognized are

not actionable retaliatory conduct.”) (quoting Burlington Northern, 548 U.S. at 68).

While Sutton’s testimony indicates that her co-workers may have been chilled in their

willingness to interact with her, she has not established that Dartis’ conduct, and through her the

Defendant, rose to the level whereby a reasonable employee would be dissuaded from making or

supporting a charge of discrimination.

Although the Court has no doubt about the ongoing difficult working relationship

between Dartis and Sutton, Title VII’s retaliation provision does not protect against trivial harms

or set forth a “general civility code for the American workplace.” Burlington Northern, 548 U.S.

at 68 (internal quotation and citation omitted). Having failed to demonstrate that she suffered a

materially adverse action for purposes of a Title VII retaliation claim, Sutton has not met her

burden to establish a prima facie case.6 Therefore, her claim of retaliation cannot survive

summary judgment.

6. The Court notes that the standard for materially adverse action is an objective, not subjective

one. And the Court explicitly finds that under an objective standard, the cited actions were not

“harmful to the point that [those actions] could well dissuade a reasonable worker from making

Hostile Work Environment

In her third and final cause of action, Sutton alleges Defendant’s discriminatory conduct

created a hostile work environment. (Doc. 1, at 6). To establish a prima facie hostile work

environment case, Sutton must demonstrate that “(1) she [is] a member of a protected class; (2)

she was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the

harassment unreasonably interfered with her work performance by creating an intimidating,

hostile, or offensive work environment; and (5) the employer is liable.” Barrett v. Whirlpool

Corp., 556 F.3d 502, 515 (6th Cir. 2009) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir.

1999)).7 Defendant argues that Sutton is unable to carry her prima facie burden, specifically

citing a failure to establish race-based causation. (Doc. 14-1, at 8).

“[I]t is axiomatic that on this claim, [the plaintiff] must provide a causal nexus between

[her] race and the complained-of conduct.” Jordan v. City of Cleveland, 434 F.3d 584, 596 (6th

Cir. 2006). The challenge of establishing this nexus is rooted in the fact that it “presents ‘an

elusive factual question’ that is often difficult to determine by way of direct proof.” Id. (quoting

Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 565 (6th Cir. 2004)).

Thus, a court should not examine each alleged incident of harassment in a vacuum

. . . . [E]ven though a certain action may not have been specifically racial in

or supporting a charge of discrimination.” Burlington N., 548 U.S. at 57. However, the Court

also observes that Dartis’ actions in fact did not deter Sutton from continuing to assert charges of

discrimination.

7. Given the facts of the instant case, the first prong of this test appears to potentially implicate

the “background circumstances” analysis required by claims of reverse race discrimination.

However, the Sixth Circuit, while recognizing the issue, has not confronted the question directly.

See Goller, 285 F. App’x at 258 n.2 (“Neither the Sixth Circuit nor its sister circuits have yet

resolved whether the ‘background circumstances’ requirement in reverse-race discrimination

cases applies to hostile-work-environment claims. . . . We need not resolve this question,

however, because Smith’s harassment of Goller did not rise to the level of a racially hostile work

environment.”). This Court also need not address whether the “background circumstances”

analysis applies, as the Court agrees with Defendant’s assertion that Sutton fails to establish the

third prong of the prima facie test.

nature, it may contribute to the plaintiff’s proof of a hostile work environment if it

would not have occurred but for the fact that the plaintiff was [within a protected

class].

Jackson v. Quanex Corp., 191 F.3d 647, 661-62 (6th Cir. 1999). The Sixth Circuit has held out

various incidents as examples of harassment that were based on race. See, e.g., Clay v. United

Parcel Serv., 501 F.3d 695, 706 (6th Cir. 2007) (holding that the plaintiff, “the only black

employee in her work area,” was able to “create[] an inference sufficient to survive summary

judgment[] that race was a motivating reason behind [the defendant’s] behavior” based upon

allegations that the plaintiff was “disciplined . . . for things for which [the defendant] did not

discipline her [white] co-workers.”); Jordan, 434 F.3d at 597 (holding “a plethora of racially

offensive jokes, racist graffiti and derogatory comments,” along with “isolation and segregation”

were among the “indignities that Jordan faced while working at the Division.”).

Sutton conclusorily asserts “Dartis’ actions are wholly based on Sutton’s race and while

Dartis may not have made any overt comments about Sutton’s race, Sutton would not have been

the subject of harassment but for her race.” (Doc. 18, at 20). Following Clay, Sutton need not cite

specific instances of racially charged language or conduct, but rather can cite evidence to support

an inference of racial motivation to create the causal nexus required by the prima facie test.

However, Sutton has not pointed to anything in the record to establish such an inference in this

case. She cites Dartis’ testimony that Dartis has previously not interacted with Sutton when

observing the teaching staff. (Doc. 17, at 49). But nothing in Dartis’ testimony connects this

conduct, either directly or inferentially, with Sutton’s race. Furthermore, although Sutton

testified “I’m having to do things that nobody else has to do like . . . letting [Dartis] know every

time I leave the building, and nobody else has to do that[,]” the comparators she named as

examples of those so differently treated were also Caucasian. (Sutton Depo., at 109-10). Finally,

Sutton has not provided evidence that establishes Dartis’ treatment of her was disparate to a non-

Caucasian comparator.

Having failed to establish an issue of fact regarding the causal nexus between her race

and the complained-of conduct, Sutton has failed to meet the burden of the prima facie case for a

hostile work environment claim based upon race. Therefore, Defendant is entitled to summary

judgment on this claim.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendant’s Motion for Summary Judgment (Doc. 14) be, and the same

hereby is, GRANTED.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE