# Sutton v. Ohio Department of Rehabilitation and Corrections

> District Court, N.D. Ohio · July 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10372246

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** July 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10372246

## How later opinions describe it (automated extraction)

- 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.”
- finding “being excluded from career-building, albeit unfunded, grant work” sufficient to establish a question of fact regarding material adversity

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10372246. Public record. Not legal advice.