# Irving v. Carr

> District Court, S.D. Ohio · October 7, 2019

URL: https://www.frixlaw.com/law-library/cases/10374031

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 7, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Jessica Irving,

Plaintiff, : Case No. 2:16-cv-728

v. Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
Steve Carr, et al., :

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants’ Combined Motion for Judgment on the
Pleadings and Motion for Summary Judgment. (ECF No. 52.) Plaintiff filed a Memorandum in
Opposition to the Combined Motions (ECF No. 61) and Defendants filed a Reply (ECF No. 64).
On the Court’s suggestion, Defendants later supplemented their Combined Motions (ECF No.
79), Plaintiff supplemented her Memorandum in Opposition (ECF No. 80), and Defendants filed
a Reply (ECF No. 84). These matters are now ripe for consideration.
I. FACTUAL BACKGROUND
This action was filed on July 26, 2016, by Plaintiff Jessica Irving. (Compl., ECF No. 1.)
Ms. Irving brings six claims against the Board of Education of the Southwestern City School
District (the “District”) and seven individual defendants (the “Individual Defendants”), all of
whom are employed by the District but who have been sued in their individual capacities. (Id.)
Ms. Irving is an African-American woman who was employed by the District as a
Speech-Language Pathologist (“SLP”). She began working full-time in this position at the
beginning of the 2010–11 school year. (Steven Carr Dep. 21:9–22:8, ECF No. 45-1.) In that first
year, Ms. Irving was assigned to three schools—Monterey Elementary School (“Monterey”),
Brook Park Middle School (“Brook Park”), and Southwestern City Preschool—and she was
responsible for approximately 35–50 students. (Jessica Irving Dep. 22:16–23:12, ECF No. 46-1.)
For the next two school years, Ms. Irving was assigned to Monterey, Brook Park, and a private
Christian school, and she was responsible for approximately 30–42 students. (Id. at 29:9–17,

30:5–20.) Ms. Irving’s supervisor was the Director of Special Education, a position that was held
during this time period first by Defendant Steve Carr and then by Gwenn Spence. (Id. at 29:21–
22, 30:5–10, 37:1–9; Carr Dep. 8:1–23.)
For the 2013–14 school year, Ms. Irving was transferred, at her request, to Darby Woods
Elementary School (“Darby Woods”). (Irving Dep. 37:1–6, 46:2–14.) She had requested this
transfer because it was only one school and because it was more convenient to her home. (Id. at
42:22–24.) After this transfer, Ms. Irving began to work with Darby Woods’ principal, Debbie
Reed; the school psychologist, Joanne Greenwald; and the occupational therapist, Amy Watson
Grace. (Id. at 38:22–40:15, 41:15–24.) During the 2013–14 and 2014–15 school years, Ms.
Irving was responsible for approximately 30–50 students at Darby Woods. (Id. at 38:4–6, 74:23–

75:5.)
After beginning work at Darby Woods, Ms. Irving became concerned that some of her
colleagues, including Ms. Watson Grace, were pushing her to “overqualify” students for delivery
of special education services, including speech therapies. (Id. at 52:17–23, errata.) Qualifying
more students had the potential to increase the amount of Medicare payments to the District. (Id.
at 33:18–35:3.) Ms. Irving began reporting these concerns to Ms. Spence in December 2013. (Id.
at 52:9–23, errata; Gwenn Spence Dep. Ex. 14, ECF No. 41-1, at 37.) It does not appear,
however, that Ms. Spence shared these concerns with anyone else in the District. (Spence Dep.
54:12–55:18.)
On April 9, 2015, Ms. Irving met with Mr. Carr, who told her that he was “considering”
reassigning her away from Darby Woods for the following school year because Principal Reed
did not consider her to be a team player. (Irving Dep. 58:6–24; Carr Dep. 176:8–16.) Mr. Carr
asked Ms. Irving to consider an alternative placement in the event that she did not stay at Darby

Woods. (Carr Dep. 176:8–16.) According to Ms. Irving’s recollection, Mr. Carr specifically told
her that she was the only staff member who was being moved away from Darby Woods. (Irving
Dep. 67:11–68:3.)
At this meeting, Ms. Irving expressed various concerns to Mr. Carr. She told him about
her concerns about overqualification. (Id. at 59:5–9.) She also expressed that she felt like she was
being treated differently because she was a minority. (Id.) Specifically, she told him that her
coworkers “weren’t ready to deal with a person of [her] skin color,” that they did not see her as a
professional, and that they treated her as if she were beneath them. (Id. at 60:8–16.)
On May 14, 2015, Ms. Irving and her union representative, Beth Edgington, met with
Principal Reed. (Id. at 64:5–13, 69:23–70:6.) At this meeting, Principal Reed denied saying that

Ms. Irving was not a team player and said that it was Defendant Deborah Carpenter who had said
that to Mr. Carr. (Id. at 70:9–23.) Ms. Carpenter was the Special Education Coordinator for the
District’s elementary and intermediate schools. (Deborah Carpenter Dep., 7:6–9:3, ECF No. 42-
1.) Principal Reed said that Mr. Carr and Ms. Carpenter had made the decision to transfer Ms.
Irving. (Irving Dep. 70:23–71:1.)
On May 18, 2015, Mr. Carr, Ms. Irving, and Ms. Edgington met. (Beth Edgington Decl.
¶ 10, ECF No. 56-2.). At this meeting, Mr. Carr reiterated that Principal Reed had said that Ms.
Irving was not a team player. (Irving Dep. 64:1–65:10.) This time, Mr. Carr told Ms. Irving that
Ms. Watson Grace and Ms. Greenwald, both Caucasian, were also being transferred. (Id. at
66:21–67:7, 68:16–19.) Mr. Carr asked Ms. Irving if she wanted to be transferred to another
school, and she said that she wanted to stay at Darby Woods. (Id. at 68:20–69:5.) At this
meeting, Ms. Irving again expressed that she felt like she was being treated differently because
of her skin color. (Edgington Decl. ¶ 14.)

The District sent Ms. Irving two conflicting letters, both dated May 28, 2015, both
entitled “Notice of Tentative Assignment and Salary Certificated Personnel.” (Carl Metzger Dep.
Exs. 81–82, ECF No. 58-2, at 7–8.) One notified Ms. Irving that she would be continuing at
Darby Woods. (Id. at Ex. 81.) The other notified Ms. Irving that she was being reassigned to
Park Street Intermediate School (“Park”). (Id. at Ex. 82.) Ms. Irving received the second letter
approximately two or three weeks after receiving the first. (Irving Dep. 72:13–21.) These letters
were generated based on information from the Director of Special Education. (Metzger Dep.
48:15–49:2.)
On June 6, 2015, Ms. Irving filed a complaint with the Ohio Civil Rights Commission
(“OCRC”), alleging racial discrimination. (Irving Dep. Ex. 6., ECF No. 46-1, at 81–84.)

Specifically, Ms. Irving alleged that Principal Reed had treated her differently from other,
Caucasian employees by, for example, demanding that she (and only she) place her schedule on
a Google calendar, denying her a room change request, encouraging aides not to cover teachers’
classrooms when she had meetings with the teachers, and chiding her for keeping her door
closed. (Id.; id. at 122:6–123:19, 147:3–10.) Ms. Irving also mentioned her overqualification
concerns in this complaint, alleging that she “was requested to use other testing tools or state a
student [was] disabled when they were not.” (Id. at Ex. 6, at 2.) The District was notified of this
complaint after it was filed. (Metzger Dep. 56:4–20.)
Later that summer, Ms. Irving learned that she had been reassigned to Park, Franklin
Woods Intermediate School (“Franklin Woods”), and Hayes Intermediate School (“Hayes”). (Id.
at 73:2–13.) No SLP had previously been assigned these three schools at the same time. (Carr
Dep. 207:19–24.) No SLP was assigned to these same three schools during the 2016–17 or

2017–18 school years either. (Jennifer Knapp Dep. 119:13–23, ECF No. 44-1.) Mr. Carr and his
successor, Defendant Nicole Tyo, were in charge of Ms. Irving’s final assignment. (Edgington
Decl. ¶ 18.) After this reassignment, Ms. Irving was responsible for approximately 50–60
students at Park, 25–30 at Hayes, and 30–40 at Franklin. (Irving Dep. 77:4–11.) The maximum
caseload under Ohio Department of Education (“ODE”) regulations is 80 students. (Nicole Tyo
Dep. 80:1–7, ECF No. 50-1.)
The District used a software program, Infinite Campus, that tracks the number of students
assigned to each SLP. (Carr Dep. 76:18–77:8.) The number of students reflected on the Infinite
Campus reports for Ms. Irving, while high, are lower than Ms. Irving’s estimates from her
deposition. This discrepancy may be due to fluctuations resulting from students being moved in

and out of speech therapy, including students who were still being evaluated and had not yet
been assigned to therapy. (Id. at 77:9–78:1.)
According to the 2015–16 Infinite Campus report, Ms. Irving had the largest caseload out
of all full-time SLPs in the District. (Irving Decl. ¶ 2, ECF No. 59-1; Tyo Dep. Ex. 108, ECF No.
51-1, at 129.) As of September 1, 2015, Ms. Irving was assigned 85 students. (Tyo Dep. Ex.
108.) This number dropped to 69 three days later but rose back to 75 four days after that. (Id.)
There were only six days during September and October when Ms. Irving was assigned fewer
than 75 students. (Id.) As of September 30, 2015, Ms. Irving was assigned 82 students, and her
caseload never dropped any lower until after she went on medical leave on October 28, 2015.
(Id.; Irving Dep. Ex. 2, ECF No. 46-1, at 61.)
In contrast, none of the other seven full-time SLPs in the District ever had a caseload
above 65 students until Ms. Irving went on medical leave, and even after October 28, none had a

caseload of more than 68. (Tyo Dep. Ex. 108.). Four of these seven SLPs never had a caseload of
more than 50, even after Ms. Irving went on medical leave. (Id.)
In addition to having the heftiest quantity, the Infinite Campus reports also reveal that
Ms. Irving’s caseload was qualitatively the most difficult. It is more challenging and time-
consuming for an SLP to have a case where she is designated as a “service provider” as opposed
to a “case manager.” (Irving Decl. ¶ 6.) This is because the students for whom an SLP is a
“service provider” have multiple disabilities and are working with other professionals. (Id.) As of
September 30, 2015, out of the 27 SLPs listed on the Infinite Campus “Speech Therapist Daily
Count,” Ms. Irving had both the highest total number of students (82) and the highest number for
whom she was the service provider (63). (ECF No. 59-3, at 2.) The SLP with the second highest

total (55) had eight fewer total students than those for whom Ms. Irving was designated as the
service provider. (Id.) Twenty-three of these 27 SLPs had 50 or fewer total students. (Id.)
The same remained true for October. As of October 30, 2015, Ms. Irving was assigned 83
students and was the service provider for 65. (Id. at 3.) Ms. Irving’s service provider total
continued to be higher than anyone else’s total number of students, and 24 of the 28 listed SLPs
were assigned 50 or fewer total students. (Id.)
Around August 27, 2015, Ms. Irving complained to Ms. Tyo that her Infinite Campus
caseload was too high at 90 students. (Irving Dep. 77:4–78:18.) On September 15, 2015, Ms.
Irving had a meeting about her caseload with Defendant Jennifer Bogenrife, the Special
Education Coordinator for the District’s middle and high schools. (Irving Dep. 92:9–94:24;
Jennifer Bogenrife Dep. 5:24–6:3, ECF No. 47-1.) After this meeting, Ms. Irving continued to
have an excessive caseload. (Irving Dep. 99:20–100:2; ECF No. 59-3, at 2–3.)
In September 2015, Ms. Irving contacted the Ohio Board of Speech-Language Pathology

and Audiology (OBSLPA) regarding her excessive caseload. (Tyo Dep. Ex. 28, ECF No. 51-1, at
1.) Around September 23, 2015, Ms. Irving received a letter from the OBSLPA, which she gave
to Ms. Tyo and Ms. Bogenrife. (Id.; Bogenrife Dep. 62:6–22; Tyo Dep. 66:3–22.)
On September 24, 2015, Ms. Bogenrife provided Ms. Irving with a Letter of Direction,
outlining alleged issues with Ms. Irving’s performance and corrections that she was required to
make. (ECF No. 46-1, at 58–59; Irving Dep. 100:3–7.) Among other things, the letter alleges that
Ms. Irving had not been servicing her students. (ECF No. 46-1, at 58–59.) Ms. Irving disputes
this allegation, as well as most of the rest of the letter’s contents. (Irving Dep. 101:13–107:2.)
On October 28, 2015, Ms. Irving went on medical leave after her doctor concluded that
the stress of Ms. Irving’s job was negatively impacting her health. (Id. at 112:19–113:8, id. at

Ex. 2.)
On November 2, 2015, Defendant Carl Metzger, the District’s Assistant Superintendent
in charge of personnel, asked Defendant Amber Hufford, the District Civil Rights Officer, to
initiate an investigation into whether Ms. Irving was properly performing her duties. (Amber
Hufford Dep. 12:18–23, 23:17–24:2, 65:8–10, ECF No. 48-1; Hufford Dep. Ex. 95, ECF No. 49-
1, at 80–94) The purpose of the investigation was to determine whether the Letter of Direction
had been appropriately issued and whether Ms. Irving was in compliance with the outlined
directives. (Hufford Dep. Ex. 95, at 1; Metzger Dep. 122:14–123:15.) Ms. Hufford completed
her report in December 2015 and provided her report to the District. (Hufford Dep. 10:20–
11:11.) This report concluded that the Letter of Direction was justified and that Ms. Irving had
not followed all of the directives issued to her in this letter. (Hufford Dep. Ex. 95, at 12.) The
report also found discrepancies in Ms. Irving’s Medicaid billing, including billings for services
for students who were absent or tardy on the day billed. (Id. at 13.)

On January 20, 2016, Ms. Irving resigned from the District, claiming that her resignation
was involuntary and that she felt forced to resign based on the workload she had been assigned,
the environment in which she had been working, and the harassment and discipline she had
received in response to her requests for help. (Irving Dep. Ex. 11, ECF No. 46-1, at 96.) On
January 21, 2016, the District accepted Ms. Irving’s resignation. (Id. at Ex. 12, ECF No. 46-1, at
100.)
On January 27, 2016, Dr. Metzger submitted a “School District, DD Board &
Community School Educator Misconduct Reporting Form” (the “Misconduct Form”) to the
ODE, reporting that Ms. Irving had resigned while under investigation, as well as providing a
summary of the information that the investigation had uncovered. (Metzger Dep. Ex. 85, ECF

No. 58-4.) Dr. Metzger submitted this report because he was advised that it was mandatory under
the circumstances. (Metzger Dep. 50:4–52:17.) Ms. Irving subsequently received a letter from
the ODE informing her that she was under investigation and that her license was in jeopardy.
(Irving Dep. 135:1–3.)
Ms. Irving has brought the following claims against the Individual Defendants: Claim
One – First Amendment retaliation; Claim Two – racial discrimination and retaliation pursuant
to §§ 1981–1983 and the Equal Protection Clause; and Claim Three – post-termination First
Amendment retaliation. As to the District, Ms. Irving alleges race discrimination (Claim Four),
“retaliation” (Claim Five), and post-termination retaliation (Claim Six).
II. DISCUSSION
A. Lack of Subject Matter Jurisdiction
“[A] district court may, at any time, sua sponte dismiss a complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure when the

allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of
merit, or no longer open to discussion.” Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999). A
plaintiff is not entitled to notice and opportunity to amend her complaint when the court
considers a dismissal under this portion of the rule. Id.
In Claim Two, Plaintiff asserts that she brings a claim for “race retaliation” under § 1981
and the Equal Protection Clause of the Fourteenth Amendment, both also via § 1983. (ECF No.
1, ¶¶ 55, 57.) The Court sua sponte DISMISSES Plaintiff’s § 1983 retaliation claims premised
on the Equal Protection Clause because “a ‘retaliation claim does not . . . arise under the Equal
Protection Clause.’” Smith v. City of Inkster, 644 F. App’x 602, 611 (6th Cir. 2016) (alteration in
original) (quoting R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 440 (6th Cir.2005));

Barry v. O’Grady, No. 2:14-cv-2693, 2017 WL 1234048, at *18–19 (S.D. Ohio Mar. 31, 2017).
B. Motion for Judgment on the Pleadings
1. Standard of Review
Federal Rule of Civil Procedure 12(c) provides that “[a]fter the pleadings are closed—but
early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.
P. 12(c). A motion for judgment on the pleadings under Rule 12(c) attacks the sufficiency of the
pleadings and is reviewed under the same standard applicable to a motion to dismiss under Rule
12(b)(6). Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). A claim
survives a motion to dismiss pursuant to Rule 12(b)(6) if it “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). A

complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555–56 (footnote and citations omitted).
A court must “construe the complaint in the light most favorable to the plaintiff.” Inge v.
Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). However, a plaintiff must provide “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do . . . .” Twombly, 550 U.S. at 555; accord Iqbal, 556 U.S. at 678 (“Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
“[A] naked assertion . . . gets the complaint close to stating a claim, but without some further
factual enhancement it stops short of the line between possibility and plausibility . . . .” Twombly,

550 U.S. at 557. Thus, “something beyond the mere possibility of [relief] must be alleged . . . .”
Id. at 557–58.
2. Analysis
Defendants move for judgment on the pleadings with respect to Plaintiffs’ second, fourth,
fifth, and sixth claims. (Def. Mot. J. Pleadings, ECF No. 52, at 10.) First, Defendants argue that
each of these claims is improperly brought pursuant to 42 U.S.C. § 1981. (Id.) Because “‘the
express cause of action for damages created by § 1983 constitutes the exclusive federal remedy
for violation of the rights guaranteed in § 1981 by state governmental units,’ no independent
cause of action against municipalities is created by § 1981(c).” Arendale v. City of Memphis, 519
F.3d 587, 598–99 (6th Cir. 2008) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733
(1989)). Accordingly, Ms. Irving cannot maintain a stand-alone claim against the District under
§ 1981.
Even suits for damages against state actors in their individual capacities alleging § 1981

violations must be brought via § 1983. McCormick v. Miami Univ., 693 F.3d 654, 661 (6th Cir.
2012) (“[Section] 1983 is the exclusive mechanism to vindicate violations of § 1981 by an
individual state actor acting in his individual capacity.”). As a result, Ms. Irving also cannot
maintain claims against the Individual Defendants pursuant to § 1981 alone, although she can do
so via § 1983. See Boxill v. O’Grady, 935 F.3d 510, 519 (6th Cir. 2019).
Nevertheless, the Court declines to dismiss any of these claims on the grounds of failure
to plead a claim under § 1983. Federal pleading rules “do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.
City of Shelby, 135 S. Ct. 346, 346–47 (2014) (per curiam). The plaintiff need only inform the
defendants of “the factual basis” of her complaint, and a defect in statutory citation is not fatal.

Id. at 347. Ms. Irving has provided adequate notice to Defendants. Claim Two explicitly states
that it is being brought pursuant to § 1983, and context indicates that Claims Four, Five, and Six
are also being brought pursuant to § 1983, even though that statute is not specifically cited.
Defendants have had sufficient notice as to the claims against them and the statutory basis for
them.
Defendants next argue that Ms. Irving has failed to plead the existence of an
unconstitutional policy and thus fails to state a claim for municipal liability under Monell v. New
York City Department of Social Services, 436 U.S. 658 (1978). (ECF No. 52, at 11.) This
argument is well taken with respect to Ms. Irving’s fourth, fifth, and sixth claims only.
Defendants’ motion is not well taken with respect to Ms. Irving’s second claim, which is brought
against the Individual Defendants “in their individual capacities.”1 (ECF No. 1 ¶ 2.)
“[A] local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents.” Monell, 436 U.S. at 694. Rather, in order to prove liability, a plaintiff

must prove that it was the entity’s policy or custom that caused the constitutional injury. Id. This
requirement exists in order “to distinguish acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal liability . . . is limited to acts that are,
properly speaking, acts ‘of the municipality’—that is, acts which the municipality has officially
sanctioned or ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
It is true, however, that “municipal liability may be imposed for a single decision by
municipal policymakers under appropriate circumstances.” Id. As a result, liability may be
imposed where a government’s authorized decisionmakers decide to take a particular course of
action. Id. at 481.
Ms. Irving argues that Mr. Carr had final decisionmaking authority over Ms. Irving’s

assignment and that this is adequate for District liability under Monell. (Pl. Resp. to Mot. J.
Pleadings, ECF No. 61, at 30.) Defendants are correct, however, that this allegation appears
nowhere in the Complaint. (Def. Reply, ECF No. 64, at 4; see generally ECF No. 1.) As a result,
Ms. Irving is not entitled to pursue this theory. See Cousino v. Twp. of Marshall, No. 17-1922,
2018 WL 3854027, at *2 (6th Cir. Mar. 6, 2018) (“Cousino’s amended complaint failed to allege
that an official policy or custom of the Township resulted in a violation of his constitutional
rights, as is required to state a § 1983 claim for municipal liability.”); McVicker v. Hartfield, No.

1Although Defendants move for judgment on the pleadings on a § 1983 Equal Protection claim against the
District, citing Claim Two, (ECF No. 52, at 11), there is no such claim contained in Claim Two. Claim Two is
brought against only the Individual Defendants, and they are sued only in their individual capacities. (See ECF No. 1
¶¶ 2, 54–59.)
2:08-CV-1110, 2009 WL 2431257, at *12 (S.D. Ohio Aug. 6, 2009) (“The complaint is devoid
of any allegations or facts indicating the existence of an official policy which caused any
constitutional violation against the plaintiffs by any of the defendants . . . .”); cf. Garner v.
Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993) (“[T]o satisfy the Monell requirements a

plaintiff must identify the policy, connect the policy to the city itself and show that the particular
injury was incurred because of the execution of that policy.” (internal quotation marks omitted)).
Accordingly, Defendants’ motion for judgment on the pleadings as to Claims Four, Five,
and Six is GRANTED.
3. Conclusion
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART
Defendants’ motion for judgment on the pleadings.
C. Motion for Summary Judgment
1. Standard of Review
The standard governing summary judgment is set forth in Federal Rule of Civil

Procedure 56(a), which provides: “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
The Court must grant summary judgment if the opposing party fails to make a showing
sufficient to establish the existence of an element essential to that party’s case and on which that
party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007).
When reviewing a summary judgment motion, the Court must draw all reasonable
inferences in favor of the nonmoving party, who must set forth specific facts showing there is a
genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Pittman v. Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d
716, 723 (6th Cir. 2011). The Court must refrain from making credibility determinations or
weighing the evidence. Shreve v. Franklin Cty., 743 F.3d 126, 142 (6th Cir. 2014). The Court

disregards all evidence favorable to the moving party that the jury would not be required to
believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000). “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); Barrett v. Whirlpool Corp., 556 F.3d 502, 511 (6th Cir.
2009).
2. Analysis
Ms. Irving’s remaining claims consist of First Amendment retaliation (Claims One and
Three) and racial discrimination and racial retaliation (Claim Two). She has brought these claims
against the seven Individual Defendants.

a. William Wise
Defendants have made various arguments as to the legal and factual sufficiency of Ms.
Irving’s claims, although they have not argued why any of the Individual Defendants should be
treated differently than any of the others. However, because some of Defendants’ arguments are
well taken as to some of the Individual Defendants, if not others, the Court has considered those
same arguments in the context of each Individual Defendant.
Ms. Irving has sued Defendant William Wise, the Superintendent for the District. Dr.
Wise is conspicuously missing from the factual background in this opinion, because Ms. Irving
has failed to identify in her Complaint, or in her motion papers, any basis for liability on the part
of Dr. Wise. Rather, Dr. Wise is only mentioned in the Complaint in reference to his supervisory
role as superintendent. (ECF No. 1 ¶¶ 2, 30, 51, 62.) Dr. Wise is not mentioned in Ms. Irving’s
motion papers at all. (See generally ECF Nos. 61, 80.) Section 1983 does not, however,
“incorporate doctrines of vicarious liability,” Pembaur, 475 U.S. at 479, so Dr. Wise cannot be

liable under § 1983 for the acts of other District employees. As a result, Dr. Wise’s motion for
summary judgment is GRANTED in its entirety.
b. Claim Two

After dismissing the improperly pleaded aspects of Claim Two, what remains is Ms.
Irving’s race discrimination claim against the Individual Defendants (except Dr. Wise) in their
individual capacities under § 1983 and the Equal Protection Clause and a retaliation claim under
§ 1981. Race discrimination claims brought pursuant to § 1983 “are governed by the legal
framework used to analyze claims under Title VII . . . .” Williams v. Zurz, 503 F. App’x 367, 374
(6th Cir. 2012). The same standard applies to an Equal Protection Claim. Deleon v. Kalamazoo
Cty. Road Comm’n, 739 F.3d 914, 917–18 (6th Cir. 2014). Similarly, retaliation claims under
§ 1981 are treated the same as those under Title VII. Boxill, 935 F.3d at 520.
In the absence of direct evidence of discrimination or retaliation, such claims are
analyzed under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). Under this approach, a plaintiff must first establish a
prima facie case of discrimination or retaliation. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252–53 (1981). Establishing a prima facie case creates a rebuttable presumption that the
employer engaged in unlawful conduct. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506–07
(1993).
Once the plaintiff has established a prima facie case, the burden shifts to the employer to
produce a legitimate, non-discriminatory reason for the adverse employment action. Burdine,
450 U.S. at 252–53. The burden is not onerous. An employer will satisfy its burden as long as it
articulates a valid rationale for its decision. Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir.1996).

Then, if the employer meets this burden, the plaintiff may still prevail if she shows that the
reasons offered by the defendant are a pretext for discrimination or retaliation. Burdine, 450 U.S.
at 253. To prove pretext, the plaintiff must introduce admissible evidence to show “‘that the
proffered reason was not the true reason for the employment decision’” and instead that racial
animus was the true motivation driving the employer's determination. Hicks, 509 U.S. at 508
(quoting Burdine, 450 U.S. at 256). Throughout the analysis, the ultimate burden of proof
remains with the plaintiff. Id. at 511.
If the defendant presents a legitimate, non-discriminatory reason for the employment
action, “a plaintiff will survive summary judgment only by raising a genuine issue of material
fact as to whether the proffered reason is in fact a pretext for discrimination.” Walcott v. City of

Cleveland, 123 F. App’x 171, 176 (6th Cir. 2005). To establish pretext, the plaintiff must show
that “the reason offered by the defendant: (1) has no basis in fact; (2) did not actually motivate
the decision . . . or (3) was insufficient to warrant the decision . . . .” Id. “In every civil rights
action it is the responsibility of the jury [to] determine whether the defendant's actions were
invidious, pretextual, or improperly motivated.” Johnson v. Univ. of Cincinnati, 215 F.3d 561,
578 (6th Cir.2000).
i. Discrimination Claim
“To establish a prima facie case of intentional discrimination, a plaintiff must show that
(1) he was a member of a protected class, (2) he suffered an adverse employment action, (3) he
was otherwise qualified for the position, and (4) he was replaced by someone outside the
protected class or treated differently than a similarly situated, non-protected employee.” Deleon,
739 F.3d at 918.
Here, Defendants concede that Ms. Irving has established the first prong of her prima

facie case in that she is African-American. (ECF No. 52, at 12–13.) They also do not dispute the
third prong. (Carr Dep. 125:19–126:4.) They dispute, however, that Ms. Irving has presented a
genuine issue of material fact regarding whether she suffered an adverse employment action or
was treated differently than similarly situated, non-protected employees. Ms. Irving responds that
she has raised a genuine issue of material fact because she suffered the following adverse
employment actions: (1) she was reassigned to a less desirable position covering three
intermediate schools; (2) she received a substantially—and disproportionately—increased
workload; (3) she was subject to harassment that included criticism of her work, the issuance of
the “Letter of Direction,” and an investigation into her work; and (4) she was constructively
discharged. (ECF No. 61, at 23–24, 29–30.)

To show an adverse employment action for a race discrimination claim, a plaintiff “must
establish that he has suffered a ‘materially adverse’ change in the terms or conditions of
employment because of the employer's actions.” Allen v. Mich. Dep't of Corr., 165 F.3d 405, 410
(6th Cir. 1999). Examples of “Adverse actions” include “discharge, demotions, refusal to hire,
nonrenewal of contracts, and failure to promote.” Thaddeus-X v. Blatter, 175 F.3d 378, 396 (6th
Cir. 1999) (en banc) (per curiam). Various courts have concluded that neither the mere
“commencement of an investigation” nor “criticisms, accusations, threats, or ‘bad mouthing’ are
. . . enough” to constitute an “adverse action.” Magley v. Wright, No. 5:98-cv-012, 2001 WL
36126924, at *19 (W.D. Mich. Mar. 30, 2001) (collecting cases). The Sixth Circuit has
emphasized, however, that “while certain threats or deprivations are so de minimis that they do
not rise to the level of being constitutional violations, this threshold is intended to weed out only
inconsequential actions, and is not a means whereby solely egregious retaliatory acts are allowed
to proceed past summary judgment.” Thaddeus-X, 175 F.3d at 398.

First, Plaintiff argues that her reassignment from Darby Woods to the three intermediate
schools constitutes an adverse employment action. “[A] materially adverse change in the terms
and conditions of employment must be more disruptive than a mere inconvenience or alteration
of responsibilities.” Bowman v. Shawnee State Univ., 220 F.3d 456, 461–62 (6th Cir. 2000)
(quoting Hollins v. Atl. Co., 188 F.3d 652, 662 (6th Cir. 1999)). “Reassignments without changes
in salary, benefits, title, or work hours usually do not constitute adverse employment actions.”
Policastro v. Nw. Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002). “When a reassignment rises
to the level of a constructive discharge, however, the reassignment is an adverse employment
action. For a transfer or reassignment to amount to a constructive discharge, its conditions must
be objectively intolerable to a reasonable person.” Id.

One factor in determining whether a constructive discharge has occurred is whether the
position to which an individual has been reassigned is increased distance from the employee’s
home. Id. And commuting distance is a proper factor for a jury to consider in determining
whether a reassignment constitutes an adverse employment action. Keeton v. Flying J, Inc., 429
F.3d 259, 265(6th Cir. 2005).
The Sixth Circuit has also stated the following:
[O]ur Circuit has not foreclosed the possibility that a transfer not rising to the
level of a constructive discharge might nonetheless constitute a tangible
employment action. In those cases, the focus narrows to whether there are “other
indices that might be unique to the particular situation” which could turn what
would ordinarily not be an adverse employment action into one. At a minimum,
the employee must be able to show a quantitative or qualitative change in the
terms of the conditions of employment.

Deleon, 739 F.3d at 918 (internal citations omitted) (quoting Hollins, 188 F.3d at 662). Based on
this standard, the Deleon court determined that the plaintiff’s claim of employment
discrimination could survive summary judgment where he had been transferred to a position
where he was subjected to poor air quality, even where the plaintiff had originally requested the
transfer. Id. at 919–21.
In the face of Deleon, other district courts in this Circuit have denied motions for
summary judgment in the face of similarly “intolerable” (or even objectively less intolerable)
conditions as those to which Ms. Irving alleges she was subjected. See Hawkins v. Maury Cty.
Bd. of Educ., No. 1:12-CV-184, 2015 WL 4546783, at *11–12 (M.D. Tenn. July 27, 2015)
(denying defendant’s motion for summary judgment where the “stigma or loss of professional
esteem” of an involuntary transfer of a school teacher could have “render[ed] the involuntary
transfer objectively intolerable to a reasonable person.”); Kea v. Donahoe, 119 F. Supp. 3d 723,
738 (E.D. Mich. 2015) (denying defendant’s motion for summary judgment based on
“objectively intolerable” condition requiring plaintiff to return to his home office to eat lunch
instead of being able to stop for lunch along his work route). Based on Deleon’s words of
caution, Ms. Irving’s reassignment cannot be viewed in isolation. It must be viewed in the
context of all of the surrounding circumstances, including the significant changes to her

workload.
In arguing that an increased workload cannot constitute an adverse employment action,
Defendants point to only one Sixth Circuit case. In that case, the issue was more of a scheduling
issue than a workload issue where the plaintiff was denied the right to exercise his seniority,
thereby losing his priority in scheduling, which resulted in him having to take on more difficult
assignments. See Johnson v. United Parcel Serv., Inc., 117 F. App’x 444, 449–50 (6th Cir.
2004). The court focused on the scheduling issue, specifically noting that changes in the number
of hours of work (i.e., changes in quantity of work) could potentially constitute an adverse
employment action. Id. at 450. It also should be noted that Johnson was not decided at the

summary judgment stage. Id. at 447.
Here, at the summary judgment stage, all justifiable inferences must be drawn in favor of
Ms. Irving. Anderson, 477 U.S. at 255. In examining the evidence in this fashion, based on the
totality of the circumstances, a jury could find that Ms. Irving suffered an adverse employment
action. Ms. Irving not only was reassigned to three schools that increased her commuting time,
but she was assigned to three schools that resulted in a substantial increase in her workload. It is
significant that Ms. Irving is the only SLP to have been assigned these three schools at the same
time, and at the summary judgment stage, it is proper to infer even from this fact alone that this
is because one person being assigned to these three schools is too much work for one person—
and that it would be a discriminatory or retaliatory rebuke to be given this assignment.

These inferences are also borne about by the evidence pertaining to Ms. Irving’s
workload. Ms. Irving was assigned significantly more students than any other SLP in the district,
as well as significantly more than she had previously been assigned. Her caseload in September
and October 2015 was more than double that of many of her colleagues. Ms. Irving also had
significantly more of the difficult cases (the cases for which she was classified as the “service
provider”) than many of her colleagues. In fact, she had significantly more cases as a service
provider than many of her colleagues had in total.
Although Defendants claim that they tried to ease the burden of Ms. Irving’s caseload,
when construing the facts in the light most favorable to Ms. Irving, it appears that they did not do
so. The Infinite Campus numbers show no significant change throughout September and October
2015, and Ms. Irving denies that Ms. Bogenrife reduced the numbers in her caseload as Ms.
Bogenrife claims to have done.
It is also significant that Ohio has made a judgment that in the ordinary case, no SLP

should carry a caseload of more than 80 students. See Ohio Admin. Code 3301-51-09(I)(3)(f)(i)
(2019) (“A speech and language pathologist shall provide services to no more than: (i) Eighty
school-age children with disabilities . . . .”). A school district is not permitted to exceed this
maximum without requesting a waiver from the ODE, id. 3301-51-09(K), and Defendants have
identified no evidence that they sought such a waiver.
In response to this, Defendants argue that 1) Ms. Irving has not presented any evidence
that Defendants deliberately assigned her a caseload exceeding the maximum permitted by law,
2) Defendants attempted to reduce the caseload, 3) Ms. Irving was not “the only SLP to ever
have a caseload” that exceeded the maximum permitted by law, and 4) Ms. Irving claims to have
been able to service her students in spite of her excessive caseload. (ECF No. 52, at 18; ECF No.

64, at 9, 11.) As to the first, the facts construed in the light most favorable to Ms. Irving require
precisely this inference, that Defendants’ actions were deliberate. As to the second, Ms. Irving
disputes that Defendants attempted to reduce her caseload, and she has produced evidence that
supports her statements. As to the third, Ms. Irving does not need to prove that no other SLP ever
had such a large caseload, and the facts support the inference that during the relevant time
period, Ms. Irving was indeed the only SLP who did. And as to the fourth, this argument is
disingenuous when Defendants themselves have argued, and produced evidence, that Ms. Irving
was not completing all of her responsibilities. It is a fair inference from the evidence that Ms.
Irving may well have tried to service all of her students (and that she may have even thought that
she had succeeded) but that she was unable to do so. It cannot be the case that an employer can
discriminatorily burden an employee with an excessive workload and then fault her for trying to
complete all of her work, or even believing (perhaps erroneously) that she had done so.
Because the Court finds that Ms. Irving’s transfer, combined with her increased

workload, constitutes an adverse employment action, the Court need not address all of the other
potentially adverse employment actions that Ms. Irving alleges. However, the Court must
address the allegations pertaining to Ms. Hufford’s investigation and to the criticisms of Ms.
Irving’s work by Ms. Carpenter. This is because these are the only allegations pertaining to these
two defendants that could potentially provide for a basis for liability. (ECF No. 1, ¶¶ 30, 39–44.).
That means that if these allegations do not constitute adverse employment actions, Ms. Hufford
and Ms. Carpenter are entitled to summary judgment.
An internal investigation into suspected wrongdoing by an employee does not constitute
an adverse employment action. Dendinger v. Ohio, 207 F. App’x 521, 527 (6th Cir. 2006). Nor
does the failure to notify an employee that he or she is being investigated. Id. As a result,

because the allegations as to Ms. Hufford pertain only to her role in the investigation of Ms.
Irving, and because Ms. Irving has produced no other evidence of liability on the part of Ms.
Hufford, Ms. Hufford’s motion for summary judgment is GRANTED as to the discrimination
component of Claim Two.
Criticism without a “material adverse change in the terms and conditions” of an
individual’s employment will not constitute an adverse employment action. Nickell v. Memphis
Light, Gas & Water Div., 76 F. App’x 87, 93 (6th Cir. 2003). Even a verbal reprimand is not
enough for an adverse employment action unless it is something more than “mere criticism.”
Weigold v. ABC Appliance Co., 105 F. App’x 702, 708 (6th Cir. 2004) (internal quotation marks
omitted). In sum, “[i]f every low evaluation or other action by an employer that makes an
employee unhappy or resentful were considered an adverse action, Title VII would be triggered
by supervisor criticism or even facial expressions indicating displeasure.” Primes v. Reno, 190
F.3d 765, 767 (6th Cir. 1999). Thus, because the only allegations as to Ms. Carpenter for which
Ms. Irving has provided evidence pertain to Ms. Carpenter’s criticisms of Ms. Irving, 2 Ms.

Carpenter’s motion for summary judgment is GRANTED as to the discrimination component of
Claim Two.
In the context of the McDonnell Douglas burden-shifting framework, Defendants have
argued that they had a nondiscriminatory reason for reassigning Ms. Irving. They argue that they
reassigned her because of the dysfunctionality of the Darby Woods special education team. (ECF
No. 52, at 17.) This explanation is inadequate, and Ms. Irving has provided sufficient evidence to
rebut it.
Defendants’ innocent explanation does not account for Ms. Irving’s increased workload
in fall 2015, and the reassignment must be scrutinized in conjunction with this fact. Defendants

could have transferred Ms. Irving to a school, or schools, with lighter workloads, or they could
have made a meaningful effort to adjust her workload after the transfer. Ms. Irving has produced

2 Ms. Irving makes other allegations against Ms. Carpenter based on her supervisory role, but these claims
are not cognizable under § 1983. Pembaur, 475 U.S. at 479. Ms. Irving also has made allegations against Ms.
Carpenter for which the evidence shows Ms. Carpenter was not responsible, such as the issuance of the letter of
direction. (Carpenter Dep. 66:5–8.) Even if Ms. Irving’s reassignment can constitute a “material adverse change in
the terms and conditions” of her employment, this was not a decision in which Ms. Carpenter had a say. (Carpenter
Dep. 36:1–37:3.) Although Ms. Irving claims that Principal Reed said that Ms. Carpenter helped make the decision
regarding Ms. Irving’s transfer, (Irving Dep. 70:23–71:1), this statement is hearsay and one for which Principal
Reed appears to lack personal knowledge. Hearsay evidence should be disregarded when considering summary
judgment. U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir. 1997). This statement is also
rebutted by more reliable evidence in that Ms. Carpenter had supervisory responsibility over the District
occupational therapists, not the SLPs. (Carpenter Dep. 7:16–9–13.)
sufficient evidence to create an issue of fact that Defendant’ proffered reason was not the true
reason but that racial animus was.
Finally, as to the fourth element of the prima facie case, Ms. Irving has provided
evidence that she was “treated differently than a similarly situated, non-protected employee.”

While Ms. Irving may have been treated the same as Ms. Watson Grace and Ms. Greenwald in
terms of being transferred away from Darby Woods, Defendants have not argued that Ms.
Watson Grace or Ms. Greenwald experienced the substantial increase in workload that Ms.
Irving did. Rather, the evidence shows that once Ms. Irving was transferred, her workload was
much heavier than any other SLP in the District.
ii. Retaliation Claim
To prove a retaliation claim, Ms. Irving must prove that “(1) she engaged in protected
activity; (2) her exercise of that activity was known by the Defendant[s]; (3) the Defendant[s]
thereafter took an action that was materially adverse to her; and (4) there was a causal connection
between the protected activity and the materially adverse action.” Boxill, 935 F.3d at 520.

Defendants do not dispute that Ms. Irving was engaging in protected activity. (ECF No.
52, at 18–19.) The evidence also indicates that Defendants were aware of this activity, since she
told them that she felt that she was being treated differently because of her skin color and the
District was notified of the complaints that she had filed with the OCRC. The Court has already
determined that there is sufficient evidence to infer that Defendants took an action that was
materially adverse to Ms. Irving, and it should be noted that the bar for proving an adverse
employment action is lower on a retaliation claim than on a discrimination claim. Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 63–64 (2006) (“[T]he antiretaliation provision [of
Title VII], unlike the substantive provision, is not limited to discriminatory actions that affect the
terms and conditions of employment.”).
However, as with a discrimination claim, an investigation alone is generally insufficient
“to satisfy the materially adverse employment action element” of a retaliation claim. Murphy v.

Ohio State Univ., 549 F. App’x 315, 321 (6th Cir. 2013); see Johnston v. O’Neill, 130 F. App’x
1, 7 (6th Cir. 2005) (“Mr. Johnston cannot show the terms of his employment changed as a result
of the investigation.”). “[R]ather it appears the investigation at worst is nothing more than a petty
slight, minor annoyance, or simple lack of good manners.” Murphy, 549 F. App’x at 321.
Ms. Carpenter’s alleged criticisms appear to be on a similar plane. “An 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.”
Burlington, 548 U.S. at 68.
Accordingly, Ms. Hufford’s and Ms. Carpenter’s motions for summary judgment are
GRANTED as to the retaliation component of Claim Two.

In the same vein, Ms. Irving has not established any facts that establish an adverse
employment action committed by Defendant Carl Metzger. Ms. Irving’s allegations against Dr.
Metzger pertain only to actions taken by his supervisees or to his actions regarding the report to
the ODE, which is relevant only to Claim Three. (ECF No. 1 ¶¶ 30, 45.) As a result, Dr.
Metzger’s motion for summary judgment is GRANTED as to both the discrimination and
retaliation components of Claim Two.
As to the fourth element of a retaliation claim, there is sufficient evidence to infer a
causal connection between the protected activity and the materially adverse action. The evidence
shows that when Ms. Irving had her first meeting with Mr. Carr, on April 9, 2015, the decision to
transfer Ms. Irving was not yet final. First, according to Mr. Carr’s testimony, he told Ms. Irving
that he was considering reassigning her and that she should consider where she might want to be
reassigned. Second, meetings surrounding this transfer continued for the next several weeks.
Third, on May 28, 2015, a letter was issued to Ms. Irving from the District that she was

tentatively being assigned to Darby Woods for the 2015–16 school year. In addition, according
to Ms. Irving, Mr. Carr told her at this first meeting that she was the only one being transferred.
The second meeting, on May 18, 2015, took place after Ms. Irving told Mr. Carr about
her concerns about racial discrimination at the April 9 meeting. At this second meeting, Mr. Carr
told Ms. Irving that Ms. Watson Grace and Ms. Greenwald were being transferred as well. It is a
fair inference that after Defendants became aware of Ms. Irving’s allegation of racial
discrimination on April 9, 2015,3 they decided to retaliate against Ms. Irving.
Furthermore, during summer 2015, before Ms. Irving was assigned her fall caseload, Ms.
Irving filed a complaint with the OCRC alleging racial discrimination. Given the close proximity
between the filing of this complaint and the assignment of Ms. Irving’s fall caseload, it is a fair

inference that Defendants retaliated as a result of the OCRC complaint by assigning Ms. Irving
an excessive workload in fall 2015.
Based on the above, Defendants’ Motion for Summary Judgment as to Claim Two is
DENIED as to Defendants Steve Carr, Nicole Tyo, and Jennifer Bogenrife.
c. Claim One
Claims One and Three both allege First Amendment retaliation. The elements of a First
Amendment retaliation claim are: (1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against her that would deter a person of ordinary firmness from

3 Mr. Carr denies having any knowledge of allegations of racial discrimination until June 2015. (Carr Decl.
¶ 17, ECF No. 52, at 28.) This is a material fact in dispute.
continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by
her protected conduct. Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). If the
plaintiff meets this initial burden, it then falls to the employer to show that it would have reached
the same decision even in the absence of the protected speech. Eckerman v. Tenn. Dep’t of

Safety, 636 F.3d 202, 208 (6th Cir. 2010). Once the employer presents this evidence, “summary
judgment is warranted if, in light of the evidence viewed in the light most favorable to the
plaintiff, no reasonable juror could fail to return a verdict for the defendant.” Id.
Defendants do not argue that Ms. Irving did not engage in constitutionally protected
conduct. Rather, Defendants seek summary judgment on Claims One and Three based on the
second two elements of a First Amendment retaliation claim: first, they argue that Ms. Irving has
not suffered an adverse employment action; and, second, they argue that Ms. Irving cannot
establish that the alleged adverse employment actions were motivated by her protected conduct.
The adverse action standard for First Amendment retaliation claims is different from the
adverse employment action standard for Title VII claims. Benison v. Ross, 765 F.3d 649, 659

(6th Cir. 2014). For First Amendment retaliation purposes, an adverse action is one that “‘would
chill or silence a person of ordinary firmness from future First Amendment activities.’” Id.
(quoting Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 822 (6th Cir.
2007)). “[I]f a reasonable trier of fact could conclude that a retaliatory act would deter a person
from exercising his rights, then the act may not be dismissed at the summary judgment stage.”
Siggers-El v. Barlow, 412 F.3d 693, 701 (6th Cir. 2005).
A court must “‘tailor [its] analysis under the adverse action prong to the circumstances of
this specific retaliation claim.’” Dye v. Office of the Racing Comm’n, 702 F.3d 286, 303 (6th Cir.
2012) (quoting Mezibov v. Allen, 411 F.3d 712, 721 (6th Cir. 2005)). For that reason, the Court
must consider the alleged adverse actions to determine whether Ms. Irving has “produced
evidence from which a reasonable jury could conclude that the action ‘might have dissuaded a
reasonable worker’ from engaging in protected activity.” See Benison, 765 F.3d at 659 (quoting
Burlington, 548 U.S. at 68).

In seeking to establish an adverse action under Claim One, Ms. Irving relies on the same
actions previously discussed. (ECF No. 61, at 31–32). As a result, the Court begins by applying
this lower standard to Ms. Irving’s reassignment. The Sixth Circuit has recognized that a
teacher’s involuntary transfer to another school within the district “would have a sufficient
chilling effect to qualify as an adverse action under the First Amendment retaliation analysis.”
Leary v. Daeschner, 228 F.3d 729, 738 (6th Cir. 2000).
Here, Ms. Irving claims that being assigned to three schools makes it harder to develop
long-term relationships with other professional staff members and results in significant lost time
for servicing students because of her travel among the schools. (ECF No. 59-1, ¶¶ 4-5.) This is
the kind of impact that would chill a person of ordinary firmness from engaging in

constitutionally protected activity because it can negatively impact a person’s “daily experiences
including [her] commute, coworker friendships, and community relationships.” See Leary v.
Daeschner, 349 F.3d 888, 901 (6th Cir. 2003). It follows that an increase in workload would
have a similar negative impact on a person and would have an equally chilling effect on that
person’s First Amendment rights, especially in conjunction with a retaliatory transfer.
Because the Court finds that Ms. Irving’s transfer and her increased workload constitute
an adverse action, the Court need not address all other potential adverse actions that Ms. Irving
alleges. However, as with Claim Two, the Court must address the allegations pertaining to Ms.
Hufford’s investigation and to the criticisms of Ms. Irving’s work by Ms. Carpenter.
The Sixth Circuit has previously concluded that an investigation into suspected
wrongdoing is not an adverse employment action where the person being investigated is
suspended with full pay and benefits. Harris v. Detroit Pub. Sch., 245 F. App’x 437, 443 (6th
Cir. 2007). Thus, it follows that an investigation where there is no suspension, as here, also

would not constitute an adverse employment action.
While “the harassment necessary to rise to a level sufficient to deter an individual is 'not
extreme . . . the plaintiff must still establish some relatively strong action.” Perkins v. Twp. of
Clayton, 411 F. App’x 810, 814 (6th Cir. 2011) (internal quotation marks omitted). In addition,
“[t]he objective inquiry into whether the actions taken against an individual rise to the level of an
adverse action is highly dependent on context . . . .” Id.
The Court does not view the criticisms that Ms. Irving alleges Ms. Carpenter made as
being so severe that they would chill or silence a person from exercising his/her First
Amendment rights. Notably, the Sixth Circuit has found that similar plaintiffs subjected to
similar criticisms did not suffer an adverse action. See, e.g., Fritz v. Charter Twp. of Comstock,

463 F. App’x 493, 498–500 (6th Cir. 2012) (declining to find that criticisms against plaintiff
were sufficiently “embarrass[ing], humiliat[ing, or] emotional[ly] distress[ing]” to constitute
adverse actions); Mezibov, 411 F.3d at 722–23 (holding that statements that defense lawyer was
a bad attorney, was inexperienced, and was acting in his own self interest did not “exact a harm
. . . that would deter an ordinary criminal defense attorney from vigorously representing his
clients”); cf. Mattox v. City of Forest Park, 183 F.3d 515, 522–23 (6th Cir. 1999) (finding that
publication of volunteer firefighter’s personal information in investigative report was not
sufficiently embarrassing to constitute adverse action). Ms. Irving has established insufficient
facts to demonstrate that these criticisms rose to the level of an adverse action.
Because the actions alleged to have been committed by Ms. Hufford and Ms. Carpenter
do not constitute adverse actions, Ms. Hufford’s and Ms. Carpenter’s motions for summary
judgment are GRANTED as to Claim One.
As with Claim Two, Ms. Irving has not established any facts that establish any adverse

actions committed by Defendant Carl Metzger that could provide for liability under Claim One.
As a result, Dr. Metzger’s motion for summary judgment is GRANTED as to Claim One.
The next step in the inquiry is to consider whether Ms. Irving’s speech motivated the
adverse action. To prove this, Ms. Irving must establish “‘that the speech at issue represented a
substantial or motivating factor in the adverse employment action.’” Vereecke v. Huron Valley
Sch. Dist., 609 F.3d 392, 400 (6th Cir.2010) (quoting Rodgers v. Banks, 344 F.3d 587, 602 (6th
Cir. 2003)). The Sixth Circuit has interpreted “motivating factor” to mean the but-for cause,
“‘without which the action being challenged simply would not have been taken.’” Id. (quoting
Leonard v. Robinson, 477 F.3d 347, 355 (6th Cir.2007)); see also Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 285–86 (1977) (“The constitutional principle at stake is

sufficiently vindicated if such an employee is placed in no worse a position than if he had not
engaged in the conduct.”).
To establish that the protected speech motivated the adverse action, a plaintiff must
“‘point to specific, nonconclusory allegations reasonably linking her speech to the employer
discipline.’” Rodgers, 344 F.3d 587, 602 (6th Cir. 2003) (quoting Farmer v. Cleveland Pub.
Power, 295 F.3d 593, 602 (6th Cir. 2002)). Mere speculation, innuendo and rumor are
insufficient to substantiate a First Amendment retaliation claim. Buchko v. Cty. of Monroe, 506
F. App’x 400, 405–06 (6th Cir. 2012); see also Vereecke, 609 F.3d at 399–400 (“When assessing
motive in the context of a summary judgment motion, ‘[b]are allegations of malice [do] not
suffice to establish a constitutional claim.’” (second alteration in original) (quoting Crawford-El
v. Britton, 523 U.S. 574, 588 (1998))).
While causation is usually a question to be resolved by a jury, “a court may grant
summary judgment on the issue of causation when there is no genuine issue of material fact from

which a reasonable jury could conclude that the employee's discharge was motivated in part by
her speech.” Burgess v. Paducah Area Transit Auth., 387 F. App'x 538, 545 (6th Cir. 2010). In
conducting this analysis, a court must look at the totality of the circumstances. Vereecke, 609
F.3d at 401. “[E]xtremely close temporal proximity” alone is enough to permit an inference of
retaliatory motive, but when the temporal connection is more remote, additional evidence is
required. Id.
In this case, there is sufficient evidence to infer a causal connection between the
protected activity and the adverse action, not only based on timing, but also based on other
evidence. As was explained in the context of the racial retaliation claim, Ms. Irving contends that
she told Mr. Carr in their April 9, 2015, meeting about her concerns about overqualification.

Although Ms. Irving had previously shared these concerns with Ms. Spence, there is no evidence
that Ms. Spence told anyone or took any action. As a result, construing the evidence in the light
most favorable to Ms. Irving, it is reasonable to infer that this is the first time any of Defendants
learned that Ms. Irving had these concerns.
According to Ms. Irving, Mr. Carr told her that she was the only person he was thinking
about transferring. This is important for two reasons. First, although Mr. Carr was already
considering transferring Ms. Irving, her reassignment was not set in stone. Rather, she was not
actually reassigned until after she raised her concerns about overqualification. Second, at their
second meeting, on May 18, 2015, Mr. Carr told Ms. Irving that Ms. Watson Grace and Ms.
Greenwald were being transferred as well. This evidence permits the inference that after
Defendants became aware of Ms. Irving’s allegation of overqualification on April 9, 2015, they
decided to transfer two other members of the team in order to protect their decision from
allegations of retaliation.

Furthermore, during summer 2015, before Ms. Irving was assigned her fall workload,
Ms. Irving filed a complaint with the OCRC in which she raised her concerns about
overqualification. Based on the evidence that Ms. Irving was the only SLP to receive such a
disproportionate workload in fall 2015, it is a fair inference that Defendants retaliated as a result
of the OCRC complaint by assigning Ms. Irving an excessive workload in fall 2015.
Lastly, it is fair to infer from the evidence that after Ms. Irving complained to OBSLPA
that her caseload exceeded the amount permitted under state law, the Defendants retaliated
against her by maintaining her excessive caseload and workload. It is significant that Ms. Irving
received a response from OBSLPA on September 23, 2015, and on September 24, 2015, Ms.
Bogenrife gave Ms. Irving the Letter of Direction. Whether or not the Letter of Direction itself

was an adverse action is immaterial. Rather, this is evidence of animus by Ms. Bogenrife in
response to Ms. Irving’s protected complaint. And at the summary judgment stage, it is
reasonable to infer that this animus is evidence of a retaliatory motive in assigning and
maintaining Ms. Irving’s excessive workload.
The motion for summary judgment on Claim One as to Defendants Steve Carr, Nicole
Tyo, and Jennifer Bogenrife is DENIED.
d. Claim Three
In Claim Three, Ms. Irving has alleged post-termination First Amendment retaliation
based on Defendants’ report to the ODE. (ECF No. 1 ¶ 61.) As with Claim Two, in order to
sustain this claim, Ms. Irving must prove that Defendants’ retaliatory motive was the “but-for”
cause of the filing of the Misconduct Form. She cannot meet this standard.
Pursuant to Ohio law, the superintendent of a school district must report to the ODE any
licensed district employee who resigns “because of or in the course of an investigation by the

board of education . . . regarding whether the employee has committed an act that is unbecoming
to the teaching profession . . . .” Ohio Rev. Code Ann. § 3319.313(B)(4) (West 2019). Although
Ms. Irving disputes many aspects of this investigation (e.g., whether it was justified, whether it
was properly conducted, and whether she committed the infractions alleged), she does not
dispute that there was indeed an investigation that occurred. (ECF No. 61, at 2.)
Ms. Irving argues that the investigation concluded with the completion of Ms. Hufford’s
report, presumably to support the argument that Ms. Irving resigned after the investigation had
already concluded, rather than “in the course” of it. (Id. at 18.) This argument does not stand up
to scrutiny. Rightfully or wrongfully, Ms. Hufford’s report validated some of the claims of
wrongdoing against Ms. Irving, including the allegations of fraud. Concluding the investigation

at that point would have defeated the purpose of having the investigation at all. The evidence
demonstrates that the District believed that it had uncovered fraud. There is no doubt that the
investigation did not conclude with the completion of the report or that Ms. Irving resigned “in
the course of” the investigation. Ultimately, Ms. Irving acknowledges that the completion of the
report did not conclude the investigation—and that she may well still be under investigation. (Id.
at 21.)
Because Ms. Irving was still under investigation at the time of her separation, the District
was legally required to file the Misconduct Form with the ODE. Mr. Metzger has stated that he
submitted the Misconduct Form based on the advice of District legal counsel and the ODE, in
order to comply with Ohio law. Ms. Irving has not provided adequate evidence to be able to
rebut this. She therefore cannot establish that Defendants had a retaliatory motive in reporting
her resignation to the ODE and that that motive was a “but-for” cause for the submission of the
Misconduct Form.

Because Ms. Irving cannot prove that a retaliatory motive on the part of Defendants was a
“but-for” cause for the filing of the Misconduct Form, this claim fails, and the Court need not
address the other elements of the claim. Defendants’ Motion for Summary Judgment as to Claim
Three is GRANTED.
e. Plaintiff’s Request for Punitive Damages
Finally, Defendants seek summary judgment on Ms. Irving’s demand for punitive
damages. Because Defendants Deborah Carpenter, Carl Metzger, Amber Hufford, and William
Wise are entitled to summary judgment on all claims, they are entitled to summary judgment on
the claim for punitive damages as well.
In light of the discussion above, the only remaining claims against Defendants Steve

Carr, Nicole Tyo, and Jennifer Bogenrife are for race retaliation under §§ 1981–1983 and race
discrimination under § 1983, both pleaded under Claim Two, and Claim One for First
Amendment retaliation.
To recover punitive damages in an employment discrimination case, a plaintiff must
demonstrate that her employer engaged in a discriminatory practice “with malice or with reckless
indifference to the [plaintiff's] federally protected rights . . . .” 42 U.S.C. § 1981a(b)(1). “Malice”
and “reckless indifference” under the statute refer to “the employer's knowledge that it may be
acting in violation of federal law, not its awareness that it is engaging in discrimination.” Kolstad
v. Am. Dental Ass'n, 527 U.S. 526, 535 (1999). That is, “in the context of § 1981a, an employer
must at least discriminate in the face of a perceived risk that its actions will violate federal law to
be liable in punitive damages.” Id. at 536. Ms. Irving has offered no evidence that Defendants
acted with any awareness of knowledge that that they might have been acting in violation of
federal law. Accordingly, Defendants are entitled to summary judgment on Ms. Irving’s claims

for punitive damages as to Claim Two.
However, the circumstances are different for Claim One. Retaliation on the basis of the
exercise of First Amendment rights necessarily requires that the defendant act “with the purpose
of infringing upon the plaintiff’s federally protected rights.” King v. Zamira, 788 F.3d 207, 216
(6th Cir. 2015). As a result, “a defendant who has been found liable for First Amendment
retaliation has engaged in conduct that warrants consideration of an award of punitive damages.”
Id. at 216–17. Because Defendants Steve Carr, Nicole Tyo, and Jennifer Bogenrife are not
entitled to summary judgment on Ms. Irving’s First Amendment retaliation claim under Claim
One, they are also not entitled to summary judgment as to punitive damages regarding Claim
One.

III. CONCLUSION
For the reasons set forth above, Defendants’ Motion for Judgment on the Pleadings as to
Claims Four, Five, and Six is GRANTED. Defendants’ Motion for Judgment on the Pleadings
as to Claim Two is DENIED.
Defendants’ Motion for Summary Judgment as to Claim Three is GRANTED.
Defendants’ Motion for Summary Judgment as to Claims One and Two are DENIED as to
Defendants Steve Carr, Nicole Tyo, and Jennifer Bogenrife and are GRANTED as to
Defendants Deborah Carpenter, Carl Metzger, Amber Hufford, and William Wise.
Defendants’ Motion for Summary Judgment as to the claim for punitive damages is
GRANTED in its entirety with respect to Defendants Deborah Carpenter, Carl Metzger, Amber
Hufford, and William Wise. With respect to Defendants Steve Carr, Nicole Tyo, and Jennifer
Bogenrife, their Motion for Summary Judgment as to the claim for punitive damages is
GRANTED as to Claim Two and DENIED as to Claim One.

IT IS SO ORDERED.

/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10374031. Public record. Not legal advice.