Floyd-Jefferson v. Reynoldsburg City School Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

LISA FLOYD-JEFFERSON,

Plaintiff, : Case No. 2:17-CV-352

- vs - Judge Sarah D. Morrison

Magistrate Judge Elizabeth Preston Deavers

REYNOLDSBURG CITY SCHOOLS

BOARD OF EDUATION,

:

Defendant.

OPINION AND ORDER

This matter is before the Court on the Motion for Summary Judgment of Defendant

Reynoldsburg City Schools, Board of Education. (ECF No. 16.) Plaintiff Lisa Floyd-Jefferson

filed a Memorandum Contra to the Motion (ECF No. 21), and the Defendant lodged a Reply

(ECF No. 28). Pursuant to the Court’s August 9, 2019 Order (ECF No. 30), Reynoldsburg filed a

Supplemental Motion for Summary Judgment (ECF No. 31) and a Motion to Strike (ECF No.

32). Responses and Replies were filed as to each of those additional motions. (ECF Nos. 33-37.)

Being fully advised on all issues, the Court finds that the motion to strike is MOOT and the

Court GRANTS the summary judgment motions (ECF Nos. 16, 31) in part pursuant to the

following analysis.

I. BACKGROUND

Floyd-Jefferson, an African-American female, filed her March 2017 Complaint in the

Franklin County, Ohio Court of Common Pleas, alleging violations of state and federal

discrimination and compensation laws against her current employer, Reynoldsburg. (ECF No. 2).

Reynoldsburg timely removed the action to this Court pursuant to 28 U.S.C. §§ 1331, 1332,

1441, 1446 and 1447. (ECF No. 1).

Reynoldsburg has employed Floyd-Jefferson since August 2012. (ECF No. 2, ¶ 1).

Relevantly, she worked for Reynoldsburg as an Assistant Principal at Baldwin Junior High from

2012 until August 2014, earning $73,000 annually. (Alig Aff. ¶ 7.) Mr. Steve Tartt, an African-

American male, assumed that role in 2014 for an annual salary of $80,767. Id. ¶ ¶ 38-42.)

In August 2014, pursuant to a one-year contract with Reynoldsburg, Floyd-Jefferson

became an “Administrative Curriculum Specialist.” Id. ¶ 9. She was paid $73,000 annually. Id. ¶

9. In that administrative capacity, she supervised three instructional coaches. Ms. Carmen

Adkins-Pritchett, a white female, was one of those coaches. Id. ¶ ¶ 9-14. Adkins-Pritchett

worked in that capacity under a teaching contract with Reynoldsburg. Id. ¶ 13. Adkins-Pritchett

focused her efforts on math. Id. ¶ 11.

In January 2015, Reynoldsburg informed Floyd-Jefferson that her curriculum specialist

contract would not be renewed for the 2015-2016 school year due to budget cuts. Id. ¶ 18; see

also Floyd-Jefferson Aff. ¶ 4. Hence, in May 2015, Floyd-Jefferson applied for, and was

offered, a math teaching position at Hannah Ashton Middle School. Alig Aff. ¶ 20; see also

Floyd Jefferson Aff. ¶ 4; see also ECF No. 28 at Ex. B. Thereafter, Reynoldsburg advised Floyd-

Jefferson that she would be required to resign her Administrative Curriculum Specialist position

so that Reynoldsburg could employ her as a math teacher at Hannah Ashton. (Alig Aff. ¶ 21.) In

other words, Reynoldsburg could not employ her as both an administrator and as a teacher at the

same time. Id. ¶ 23.

At its April 21, 2015 meeting, Reynoldsburg non-renewed her administrator contract and

took action to employ her at Hannah Aston for the 2015-2016 school year. Id. ¶ 15. Thereafter,

Reynoldsburg sent the resultant teaching contract to Floyd-Johnson. Specifically, the offer was

for $66,741 a year with credit for ten years of teaching. Id. ¶ 26.

In May 2015, Floyd-Jefferson declined to resign and returned the offer to Reynoldsburg

unsigned. Id. ¶ 24; see also ECF No. 28 at Ex. B. Her related correspondence indicated that she

did not sign the contract in part because she was not “fully convinced that [she was] welcome

and [would] be treated equally and/or evaluated fairly should [she] continue to be employed with

Reynoldsburg City Schools.” (ECF No. 28 at Ex. B.) Reynoldsburg then rescinded its non-

renewal of Floyd-Anderson’s administrative contract, and also withdrew its April 2015 Hannah

Ashton teaching offer in July 2015. Id. Instead, Reynoldsburg awarded her a two-year contract at

$73,000 annually as an “administrator on special assignment.” (Alig Aff. ¶ 30.) The special

assignment position required 232 days of work per year and included 11 paid holidays. Id. at ¶

32. Floyd-Jefferson accepted that offer and signed the related contract on July 31, 2015. (ECF

No. 28 at Ex. B.) As of August 1, 2015, Reynoldsburg continue to employ Floyd-Jefferson as an

administrator albeit under a new contract. Id.

In October 2015, another math teaching position became available at Hannah Ashton.

(Alig Aff. ¶ 36.) Floyd-Jefferson requested to be transferred to that job. Reynoldsburg denied her

request, again telling her that it could not simultaneously employ her as both an administrator

and as a teacher. Id. ¶ 37.

Floyd-Jefferson lodged a charge of discrimination with the United States Equal

Opportunity Employment Commission and with the Ohio Civil Rights Commission on January

7, 2016. (ECF No. 2 ¶ 3.) She received a right-to-sue letter dated December 22, 2016.1 Id. ¶ 37.

This case followed in March 2017.

1 She did not attach her charge or her right to sue letter to the Complaint. The letter “is a

condition precedent and not a jurisdictional requirement.” Rivers v. Barberton Bd. of Educ., 143

F.3d 1029, 1032 (6th Cir. 1998). Neither Reynoldsburg’s Answer or its Motions for Summary

judgment take issue with Floyd-Jefferson’s satisfaction of this condition precedent to the instant

suit.

Floyd-Jefferson’s Complaint alleges in Counts One through Four that Reynoldsburg

denied her promotional opportunities between May and October 2015 due to her race and sex in

violation of Title VII 42 U.S.C. § 2000 et seq. (“Title VII”), O.R.C. Chapter 4111 and O.R.C.

Chapter 4112. (ECF No. 2 ¶ ¶ 7-10.) She further asserts Reynoldsburg unlawfully denied her

equal pay due to her race and sex under Title VII and O.R.C. Chapter 4111 in Count Five. Id. ¶

11. In Count Six, she next claims that Reynoldsburg failed to pay her for work performed during

a teacher’s strike as well as for continuing education courses in violation of an unspecified

federal law and O.R.C. Chapter 4113. Id. ¶ 12. Finally, Floyd-Jefferson presents claims for

hostile work environment (Count Seven) and retaliation (Count Eight) pursuant to unspecified

laws. Id. ¶ ¶ 12-13.

Reynoldsburg’s Motions for Summary Judgment and its Motion to Strike followed and

are presently ripe for decision.

II. STANDARD OF REVIEW

Under Fed. R. Civ. P. 56, summary judgment is proper if the evidentiary materials in the

record show 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); see Waters v. Drake, 222 F. Supp. 3d 582,

595-96 (S.D. Ohio 2016) (citing Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009)). The

moving party bears the burden of proving the absence of genuine issues of material fact and its

entitlement to judgment as a matter of law, which may be accomplished by demonstrating that the

nonmoving party lacks evidence to support an essential element of its case on which it would bear

the burden of proof at trial. See Waters, 222 F. Supp. 3d at 595-96 (citing Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986) and Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005)).

The "mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; the requirement is that there be

no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.

Ct. 2505, 91 L. Ed. 2d 202 (1986) (emphasis in original); see also Longaberger, 586 F.3d at 465.

"Only disputed material facts, those 'that might affect the outcome of the suit under the

governing law,' will preclude summary judgment." Daugherty v. Sajar Plastics, Inc., 544 F.3d

696, 702 (6th Cir. 2008) (quoting Anderson, 477 U.S. at 248). Accordingly, the nonmoving party

must present "significant probative evidence" to demonstrate that "there is [more than] some

metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340

(6th Cir. 1993). In this regard, " ‘[t]he trial court no longer has a duty to search the entire record

to establish that it is bereft of a genuine issue of material fact.’ " Thomas v. Ohio Civil Rights

Comm'n, No. 2:04-cv-0944, 2006 U.S. Dist. LEXIS 41027, at *10-11 (S.D. Ohio June 20, 2006)

(quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989)). That is, 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. Thomas, 2006 U.S.

Dist. LEXIS 41027, at *10-11 (citing In re Morris, 260 F.3d 654, 665 (6th Cir. 2001)).

A district court considering a motion for summary judgment may not weigh evidence or

make credibility determinations. Daugherty, 544 F.3d at 702; Adams v. Metiva, 31 F.3d 375, 379

(6th Cir. 1994). Rather, the Court must determine whether "the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law." Anderson, 477 U.S. at 251-52. The evidence, all facts, and any

inferences that may permissibly be drawn from the facts must be viewed in the light most favorable

to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). However,

"[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff."

Anderson, 477 U.S. at 252; see Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009).

III. MOTION TO STRIKE

Floyd-Jefferson was under contract with Reynoldsburg as an Instructional Coach for the

2018-2019 school year. Floyd-Jefferson mentions that in her Opposition, and notes that she was

given credit for her years of experience in this role. (ECF No. 21 at 10.) She argues she would

have received a higher salary for the 2015-2017 school years if Reynoldsburg had included her

years of experience then when finalizing her salary for those years. Id. at 10-11.

Reynoldsburg’s Motion to Strike (ECF No. 32) labels Floyd-Jefferson’s inclusion of this

information as “irrelevant, prejudicial, nonprobative [and] misleading” such that exclusion is

proper under Fed. Rs. Evid. 401, 403 and 407. (ECF No. 28 at 16; ECF No. 32.)

Reynoldsburg additionally notes that Floyd-Jefferson’s Affidavit recounts pre-suit

communications made to her lawyer by Reynoldsburg’s counsel. (ECF No. 25-7; ECF No. 32.)

Thus, Reynoldsburg moves to strike that portion of Floyd-Jefferson’s Affidavit on hearsay

grounds pursuant to Fed. Rs. Evid. 801 and 802. (ECF No. 28 at 16; ECF No. 32.)

Floyd-Jefferson opposes, arguing that her 2018-2019 contract is relevant because it

“disproves [Reynoldsburg]’s justification for unequal pay being based on seniority . . . .” (ECF

No. 35.) She further states she cannot respond to Reynoldsburg’s motion to strike affidavit

testimony as hearsay “without knowing specifically the hearsay to which [Reynoldsburg] is

referring.” (ECF No. 35 at 2.)

Reynoldsburg replies, noting that Floyd-Jefferson’s contract argument is irrelevant

because it is based upon a policy that did not exist during May through October 2015, the

timeframe in focus. (ECF No. 36 at 2.) Reynoldsburg additionally points out that its motion

highlighted the specific paragraph of Floyd-Jefferson’s Affidavit it sought to strike on hearsay

grounds. Id. 3.

In reaching its determination on the motions for summary judgment, the Court did not

consider what Reynoldsburg seeks to strike. As such, Reynoldsburg’s Motion to Strike (ECF No.

32) is MOOT.

IV. ANALYSIS

Reynoldsburg’s instant Motions for Summary Judgment assert full judgment in its favor

is proper because some of Floyd-Jefferson’s claims are barred by the applicable statute of

limitations and the remainder warrant dismissal because Floyd-Jefferson cannot sustain her

burden under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Floyd-Jefferson

counters precisely the opposite—that is, her claims are timely and that she does satisfy her

McDonnell Douglas burden. Reynoldsburg’s contentions prevail.

A. Counts One Through Four: Federal and State Race and Gender Discrimination

As highlighted above, Floyd-Jefferson asserts Reynoldsburg discriminated against her in

violation of Title VII and O.R.C. Chapter 4112 on the basis of her gender and race by denying

her promotions and failing to reinstate her administrator contract. The Court determines that

judgment in Reynoldsburg’s favor on those counts is warranted because Floyd-Jefferson fails to

sustain her requisite McDonell-Douglas burden.

Title VII pertinently provides that "it shall be an unlawful employment practice for an

employer—to . . . discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race, color, religion, sex,

or national origin . . . .” 42 U.S.C.S. § 2000e-2. Similarly, R.C. 4112.02 states:

[i]t shall be an unlawful discriminatory practice: (A) [f]or any

employer, because of the race, color, religion, sex, national origin,

handicap, age, or ancestry of any person, * * * to discriminate

against that person with respect to hire, tenure, terms, conditions,

or privileges of employment, or any matter directly or indirectly

related to employment.

Because the Sixth Circuit has recognized that the standards applicable to Title VII and Ohio

Revised Code § 4112 claims are the same, the Court will address these claims together. Laderach

v. U-Haul, 207 F.3d 825, 828 (6th Cir. 2000).

Floyd-Jefferson offers no direct evidence of discrimination. Hence, the Court utilizes the

McDonnell Douglas burden-shifting framework when considering her failure to promote and

failure to reinstate discrimination counts. White v. Baxter Healthcare Corp., 533 F.3d 381, 391

(6th Cir. 2008) (citing McDonnell Douglas, 411 U.S. at 802, as modified by Texas Dep't of

Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). Accordingly, to succeed on these claims, Floyd-

Jefferson has the burden of establishing a prima facie case of employment discrimination

through demonstrating, by a preponderance of the evidence, that she: (1) was a member of a

protected class; (2) was qualified for her position; (3) was subject to an adverse employment

action; and, (4) was replaced by a person outside the protected class or treated differently than

similarly situated non-protected employees. White, 533 F.3d at 391. If she proves her prima facie

case, the burden shifts to Reynoldsburg to offer evidence of a legitimate, non-discriminatory

reason for the adverse employment action. Id. Finally, if Reynoldsburg meets this burden, the

burden then shifts back to Floyd-Jefferson to demonstrate that the reason articulated was not the

true reason, but merely a pretext for discrimination. Id.

Reynoldsburg’s motion is premised upon its contention that Floyd-Johnson cannot

sustain her prima facie burden such that judgment is warranted in its favor on the highlighted

claims. (ECF No. 16 at 11-17.) Specifically, while conceding Floyd-Jefferson is a member of a

protected class, Reynoldsburg maintains she has not been subject to an adverse employment

action.2 Id. Floyd-Jefferson responds that she did suffer such an action when Reynoldsburg non-

renewed her administrative curriculum specialist contract while approving her Hannah Ashton

contract as a math teacher at a lower salary. (ECF No. 21 at 6-7.)

The United States Supreme Court defines an adverse employment action as a “significant

change in employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in benefits as

well as the denial of a raise or promotion.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761

(1998). A materially adverse employment action “‘must be more disruptive than a mere

inconvenience or an alteration of job responsibilities,’” and a materially adverse change might be

indicated by “‘a termination of employment, a demotion evidenced by a decrease in wage or

salary, a less distinguished title, a material loss of benefits, significantly diminished material

responsibilities, or other indices that might be unique to a particular situation.’” Michael v.

Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2007) (quoting Ford v. Gen. Motors

Corp., 305 F.3d 545, 553 (6th Cir. 2002)).

While Reynoldsburg did not renew her curriculum specialist contract, it ultimately

rescinded the offer of a teaching contract and instead offered her a two-year contract as an

“Administrator on Special Assignment” at an annual salary of $73,000. She accepted this

2 Reynoldsburg also asserts that Floyd-Johnson is not similarly situated to her proffered

comparators, Tartt and Atkins-Pritchett. Because the Court finds that Floyd-Johnson has not

suffered an adverse employment action, the Court does not address this contention.

contract and her compensation was the same as what she earned in her prior position as an

Administrative Curriculum Specialist. In addition, while her Administrative Curriculum contract

was for one year, her Administrator on Special Assignment agreement was for two years.

The Sixth Circuit has held that reassignments without salary changes do not ordinarily

constitute adverse employment actions. See Kocsis v. Multi-Care Management Inc., 97 F.3d 876,

885 (6th Cir. 1996) (citing Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987)). Additionally,

“‘barring unusual circumstances, . . . a transfer at no loss of title, pay, or benefits does not

amount to . . . [an] adverse employment action.’” Black v. Columbus Pub. Sch., 124 F. Supp. 2d

550, 565-66 (S.D. Ohio 2000) (quoting Darnell v. Campbell County Fiscal Court, 731 F. Supp.

1309, 1313 (E.D. Ky. 1990), aff'd, 924 F.2d 1057 (6th Cir. 1991)).

As noted, Floyd-Jefferson experienced no salary change between her administrative

contracts. Floyd-Jefferson does not contend that her benefits changed. Moreover, there is no

evidence of any material change in her responsibilities because she continued to perform

administrative work. Under these circumstances, and pursuant to Kocsis and Black, the Court

holds that Floyd-Jefferson did not prove by a preponderance of the evidence that she sustained

an adverse employment action. This failure is fatal to her gender and race claims for failure to

promote and failure to reinstate her administrative contract claims. See Laster v. City of

Kalamazoo, 746 F.3d 714, 729 (6th Cir. 2014). Reynoldsburg’s Motion for Summary Judgment

(ECF No. 16) on Counts One through Four is therefore granted.

B. Count Five – Unequal Pay

1. Federal Claims

Reynoldsburg contends that Floyd-Jefferson’s federal race and sex discrimination unequal

compensation claims are barred on limitations grounds by 42 U.S.C. § 2000e-5(e)(1) and R.C. §

4111.17(E). The Court concurs.

To bring a Title VII claim, a plaintiff must timely file a discrimination charge with the

EEOC. Alexander v. Local 496, Laborers' Int'l Union, 177 F.3d 394, 407 (6th Cir. 1999). To be

timely, the charge must be filed within 180 or 300 days from the date of "the alleged unlawful

employment practice. . . ." 42 U.S.C. § 2000e-5(e)(1). The Sixth Circuit explains Title VII's dual

statute of limitations as follows:

Usually, if the alleged discrimination occurred more than 180 days

prior to the plaintiff's filing of an EEOC charge, claims implicating

these actions are barred. However, if the alleged unlawful practice

occurs in a ‘deferral state,’ in this case Ohio, which has enacted its

own laws prohibiting discrimination in employment, the plaintiff

must file suit within 300 days of the alleged discriminatory act.

Alexander, 177 F.3d at 407 (citing 42 U.S.C. § 2000e-5(e)). Because Ohio is a deferral jurisdiction,

a plaintiff has 300 days to file a discrimination charge with the EEOC as a matter of law. See

Winkelmann v. Big Lots Stores, Inc., No. 1:08-cv-00419, 2009 U.S. Dist. LEXIS 104902, 2009

WL 3788673, at *6 and n. 1 (S.D. Ohio Nov. 10, 2009) (Spiegel, J.). Here, Floyd-Jefferson filed

her EEOC charge on January 7, 2016.

Floyd-Jefferson asserts Reynoldsburg discriminated against her based on her sex by paying

Tartt more than her for the assistant principal position. (ECF No. 21 at 5.) Reynoldsburg reasons

that because Floyd-Jefferson’s last day in that position was July 31, 2014 and Tartt assumed that

job on August 1, 2014, the 300-day period should run from the later date or, at the latest, from

October 21, 2014 when Reynoldsburg approved Tartt’s higher salary. (ECF No. 16 at 9.) August

17, 2015 is 300 days after October 21, 2014. Accordingly, because Floyd-Jefferson did not lodge

her charge until January 7, 2016, Reynoldsburg contends that her federal salary sex discrimination

counts are barred under 42 U.S.C. § 2000e-5(e)(1).

Floyd-Jefferson does not substantively respond to Reynoldsburg’s contention on this point.

Rather, Floyd-Jefferson offers that Tartt’s employment as assistant principal did not begin until

August 1, 2015 such that her January 7, 2016 charge is within the 300-day limit. (ECF No. 21 at

6.) In support, she offers an unauthenticated one-page document entitled “Administrator’s

Contract” that purports to be from Tartt’s contract for the assistant principal position for August

1, 2015 through July 31, 2016 at the annual salary of $80,767. Id. at Attachment 6. The Court

cannot consider unauthenticated documents submitted in support of summary judgment filings.

Welden v. Hale, No. 2:15-cv-2410, 2017 U.S. Dist. LEXIS 128452, at *24 (S.D. Ohio Aug. 14,

2017). And, by so arguing, Floyd-Jefferson completely ignores Alig’s affidavit, which establishes

that Tartt first assumed the assistant principal position on August 1, 2014, not August 1, 2015.

(Alig Aff. ¶ 41.)

Tartt’s start date is key, as it determines the date upon which the statute of limitations

begins to run. That is, an “unlawful employment practice” involving salary occurs under Title VII

when:

a discriminatory compensation decision or other practice is adopted,

when an individual becomes subject to a discriminatory

compensation decision or other practice, or when an individual is

affected by application of a discriminatory compensation decision

or other practice, including each time wages, benefits, or other

compensation is paid, resulting in whole or in part from such a

decision or other practice.

42 U.S.C.S. § 2000e-5. Contrary to Floyd-Jefferson’s position, the record establishes Tartt became

an assistant principal on August 1, 2014 at a salary higher than Floyd-Jefferson’s for the same

position. (Alig Aff. ¶ 39-42 and Ex. 5 thereto.) Reynoldsburg adopted that higher salary on October

21, 2014. Id. Thus, the Court agrees with Reynoldsburg that Reynoldsburg’s decision to hire Tartt

for the same job at a higher salary subjected Floyd-Jefferson to an allegedly unlawful employment

practice effective October 21, 2014. That is the date upon which Floyd-Johnson became affected

by Reynoldsburg’s compensation decision relative to Tartt. That the allegedly discriminatory

practice may have continued into 2015-2016 is irrelevant, because the quoted language establishes

that Floyd-Jefferson become affected by the change, at the latest, on October 21, 2014. Because

Floyd-Jefferson did not file her charge until more than 300 days after that date, her federal sex

compensation discrimination claims are barred under 42 U.S.C.S. § 2000e-5. Reynoldsburg’s

Motion for Summary Judgment (ECF No. 16) on these claims is GRANTED.

Reynoldsburg also contends the same fate is warranted for Floyd-Jefferson’s federal race-

based compensation counts. In this regard, Floyd-Jefferson asserts Adkins-Pritchett was paid more

for performing the duties of a math instructional coach than what Floyd-Jefferson received as

Adkins-Pritchett’s supervisor. (ECF No. 2 ¶ 3; see also ECF No. 21 at 8.) Adkins-Pritchett

assumed the coaching role in January 2015. As established above, a discriminatory compensation

decision occurs when an individual “becomes subject to a discriminatory compensation decision

or other practice, or when an individual is affected by application of a discriminatory compensation

decision ….” 42 U.S.C.S. § 2000e-5. Accordingly, Floyd-Jefferson was affected by Adkins-

Pritchett’s higher salary on January 31, 2015 at the latest. Floyd-Jefferson therefore had until

November 27, 2015 to lodge her charge. Because she did not do so until January 7, 2016, Floyd-

Jefferson’s federal race-based discriminatory compensation counts are barred under 42 U.S.C. §

2000e-5(e)(1). Reynoldsburg’s Motion for Summary Judgment (ECF No. 16) on this count is

therefore GRANTED.

2. State Claims

Reynoldsburg moves for summary judgment on Floyd-Jefferson’s state unequal pay counts

on statute of limitation grounds under R.C. § 4117.11. (ECF Nos. 16, 31.) Because the Court

dismisses all federal claims, the Court declines to exercise supplemental jurisdiction over Floyd-

Jefferson’s state claims found in Count Five. Those claims are REMANDED to state court for

determination. 28 U.S.C. § 1367(c)(3); United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).

C. Count Six – Untimely Compensation

Count Six is premised upon R.C. § 4113.15(A). Because the Court dismisses all federal

claims, the Court likewise declines to exercise supplemental jurisdiction over this claim. Thus,

Count Six is REMANDED to state court for disposition. Id.

D. Count Seven – Hostile Work Environment

In this count, Floyd-Jefferson alleges that she was “subjected [to] harassment and verbal

abuse by her supervisor creating a hostile work environment.” (ECF No. 2 ¶ 13.) What she does

not assert, however, is the statutory basis for that claim. Nor does the Complaint specify that the

asserted discriminatory behavior was premised upon her race, sex, or both. Id. Because the analysis

for a Title VII hostile environment claim is the same as the examination for a parallel Chapter

4112 hostile environment claim, the Court proceeds to analyze this count as if Floyd-Jefferson

alleges federal and state counts. Rinehart v. PNC Bank, N.A., 219 F. Supp. 3d 682, 693-94 (S.D.

Ohio 2016). And, because the examination of a racially hostile environment claim is similar to that

of a sexually hostile environment claim, the Court shall interpret the Complaint as asserting both.

To reiterate, Title VII of the Civil Rights Act of 1964 makes it an unlawful employment

practice for an employer "to discriminate against any individual with respect to his compensation,

terms, conditions or privileges of employment, because of such individual's race . . . [or] sex."

See 42 U.S.C. § 2000e-2(a)(1). R.C. 4112.02(A) states that:

[i]t shall be an unlawful discriminatory practice: (A) For any

employer, because of the race . . . [or] sex . . . of any person, to

discharge without just cause, to refuse to hire, or otherwise to

discriminate against that person with respect to hire, tenure, terms,

conditions, or privileges of employment, or any matter directly or

indirectly related to employment.

Reynoldsburg maintains its motion should be granted on Floyd-Jefferson’s hostile

environment claims because “there is simply no evidence in the record that [she] was subject to

any harassment because of her race or sex.” (ECF No. 31 at 7.) In response, Floyd-Jefferson

provides a list of actions and inactions by Reynoldsburg that she apparently feels establish a hostile

environment. (ECF No. 33 at 4-5.) Upon examination, the Court determines that summary

judgment in Reynoldsburg’s favor on these counts is appropriate.

1. Sex

"A violation of Title VII is established if discrimination based on sex has created a hostile

or abusive work environment." Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir.

2008) (internal quotation marks omitted). To establish a hostile work environment claim, a

plaintiff must show: (1) she is a member of a protected class; (2) she was subject to unwelcomed

sexual harassment; (3) the harassment was based on her sex; (4) the harassment created a hostile

work environment, and (5) the employer failed to take reasonable care to prevent and correct any

sexually harassing behavior. See Bowman v. Shawnee State Univ., 220 F.3d 456, 462-63 (6th Cir.

2000). Floyd-Jefferson is an African-American female. Thus, the first prong is satisfied. The

remainder are not.

Because “Title VII is not meant to be a ‘general civility code,’ it prohibits only

discrimination and harassment based on sex.” Black v. Columbus Pub. Sch., 124 F. Supp. 2d 550,

562-63 (S.D. Ohio 2000) (citing Bowman, 220 F.3d at 463-64). So, for the sexual harassment to

be actionable, “the workplace must be permeated with discrimination, intimidation, ridicule and

insult which is ‘sufficiently severe or pervasive to alter the conditions of [the victim's] employment

and create an abusive working environment.’" Black, 124 F. Supp. 2d at 562-63 (S.D. Ohio 2000)

(referencing Powell v. Morris, 37 F. Supp. 2d 1011, 1016 (S.D. Ohio 1999) (relying on Harris v.

Forklift Systems, Inc., 510 U.S. 17, 21-22, (1993)). The conduct in focus must be judged by both

an objective and a subjective standard. Black, 124 F. Supp.2d at 562. “The conduct must be severe

or pervasive enough to create an environment that a reasonable person would find hostile or

abusive, and the victim must subjectively regard that environment as such.” Id. (citing Bowman,

220 F.3d at 463 (relying on Harris, 510 U.S. at 21-22)). “In making this assessment, courts must

consider the ‘totality of the circumstances.’” Black, 124 F.Supp.2d at 562 (citing Williams, 187

F.3d at 562 (relying on Harris, 510 U.S. at 23)). Accordingly, the Court “must consider the

frequency of the conduct, its severity, whether it was physically threatening or humiliating, and

whether it unreasonably interfered with the employee's work performance.” Black, 124 F.Supp.2d

at 562 (citing Harris, 510 U.S. at 21 and Bowman, 220 F.3d at 463).

Floyd-Jefferson lists the following as examples of what created a hostile work environment

for her based upon her sex:

● Having insufficient time to review her administrative contract in 2015.

● Being excluded from training events.

● Experiencing a work schedule modified in inconvenient ways.

● Changing duties from certified to classified.

● Increasing extra duty responsibilities.

● Having a nonprofessional location for her office.

● Experiencing a discriminatory evaluation process.

● Being denied opportunities to apply for open district positions for the duration of

her current two-year contract.

(ECF No. 33 at 6.) Floyd-Jefferson then argues that:

no white man or woman was treated in the manner described above;

nor would he or she be. The perpetrators, regardless of race, . . .

harassed her . . . because they believed she was an “uppity” black

woman who had the audacity to embarrass them in challenging lack

of professionalism and competence in attempting to non-renew [her]

[c]ontract.

Id. She proffers nothing else in support—no discussion of the elements, no discussion of case

law—nothing. In sum, she conclusory maintains that the highlighted incidents constitute a hostile

environment based upon her sex because she believes it to be so.

But her subjective belief, without more, is insufficient to meet her burden under Bowman.

In addition, "issues adverted to in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible

argument in the most skeletal way, leaving the court to . . . put flesh on its bones." Muller v.

Shinseki, No. 3:12-cv-151, 2014 U.S. Dist. LEXIS 8890, at *19 (S.D. Ohio Jan. 24, 2014) (quoting

McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (citation omitted); see also Arnold v.

City of Columbus, No. 2:08-cv-262, 2011 U.S. Dist. LEXIS 35799, at *38-39 (S.D. Ohio Mar. 31,

2011) (same)). Accordingly, Reynoldsburg’s Motion for Summary Judgment (ECF No. 31) on

Floyd-Jefferson’s federal and state hostile work environment claims based on sex is GRANTED.

2. Race

To establish a prima facie case of hostile work environment based on race, Floyd-Jefferson

must point to evidence demonstrating 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 their work performance by creating an intimidating,

hostile, or offensive work environment; and (5) the employer failed to take reasonable care to

prevent and correct any harassing behavior. Arnold, 2011 U.S. Dist. LEXIS 35799, at *39-41

(citing Russell v. Univ. of Toledo, 537 F.3d 596, 608 (6th Cir. 2008)). Again, the parties agree that

Floyd-Jefferson is a member of a protected class. And, again the Court determines that her

response to Reynoldsburg’s argument as to the remainder of the elements is not enough to survive

the pending motions for summary judgment.

The Court’s analysis for determining what constitutes a racially hostile environment is the

same as for a hostile environment based upon sex. Under that framework, Floyd-Jefferson fails to

sustain her burden. That is, she relies upon the same list and same conclusion that those events

equate to a hostile work environment, albeit now based on race. (ECF No. 33 at 4-7.) By so doing,

she:

Provide[s] no cogent argument or admissible evidence to establish

that any of the allegedly harassing conduct about which [she]

complain[s] was "based on race." Moreover, even if [she] had

established that element, [she] provides no . . . cogent argument that

the harassment was sufficiently severe or pervasive to alter the

conditions of their employment. Lastly, [she] provide[s] no evidence

or cogent argument that Defendant failed to take reasonable care to

prevent and correct any harassing behavior. [She] offer[s] only

generalized allegations, which alone are insufficient to establish a

case of racially hostile work environment.

Arnold, 2011 U.S. Dist. LEXIS 35799, at *46. This is insufficient to sustain her burden under

Bowman, Muller, Arnold and Moore. Consequently, the Court GRANTS Reynoldsburg’s Motion

for Summary Judgment (ECF No. 31) on Floyd-Jefferson’s race-based federal and state hostile

environment counts pursuant to those authorities.

E. Count Eight – Retaliation

Floyd-Jefferson’s retaliation claim is found in Count Eight. (ECF No. 2 at ¶ 14.)

What is not contained within that claim, however, is the law upon which the count rests. Rather,

Floyd-Jefferson describes Reynoldsburg’s actions as “retaliatory” that “adversely impacted her

employment, professional status and compensation.” (ECF No. 2 ¶ 14.) Because the analysis for

a Title VII retaliation claim is the same as the examination for a parallel Chapter 41123 retaliation

claim, the Court proceeds to analyze this count as if Floyd-Jefferson alleged a federal and a state

retaliation count. Abbott v. Crown Motor Co., 348 F.3d 537, 541 (6th Cir. 2003); see also White v.

Adena Health Sys., No. 2:17-cv-593, 2018 U.S. Dist. LEXIS 114975, at *8 (S.D. Ohio July 11,

2018).

In order to prove both a federal and state law claim of retaliation, absent direct evidence of

retaliatory discrimination, a plaintiff must show the following:

(1) she engaged in activity protected by Title VII;

(2) this exercise of protected rights was known to defendant;

(3) defendant thereafter took adverse employment action against the plaintiff, or the

plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and

(4) there was a causal connection between the protected activity and the adverse

employment action or harassment.

Michael, 496 F.3d at 595 (citing Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th

Cir. 2000)); see also Putney v. Contract Bldg. Components, 2009 Ohio App. LEXIS 5634, **30-

31, 2009 Ohio 6718 (Ohio 3rd App. Dist. Dec. 21, 2009).

The ostensible activities at issue here are Floyd-Jefferson’s “challenging [Reynoldsburg’s]

lack of professionalism and competence in attempting to non-renew [her] [c]ontract” and her

reporting “verbal abuse and fraudulent documentation regarding discussions involving task

completion.” (ECF No. 33 at 5-6.) Yet, Floyd-Jefferson neither asserts nor argues that those

activities were protected. She does not specify to whom she reported those actions. She does not

argue that Reynoldsburg knew about her reports. She does not identify the purported adverse

employment action or retaliatory harassment. And, the Court holds above that she did not suffer

3 The applicable section is R.C. § 4112.02(I), which makes it an unlawful discriminatory

practice for “any person to discriminate in any manner against another person because that person

has opposed any unlawful discriminatory practice defined in this section.”

an adverse employment action. She also does not discuss whether her protected activity caused the

adverse action or harassment.

Along those lines, Reynoldsburg notes that Floyd-Jefferson has presented no evidence to

support her retaliation claims. Indeed, Floyd-Jefferson uses her same list and conclusory statement

for her retaliation count as she did for her hostile environment claims. Thus, Reynoldsburg’s

characterization of Floyd-Jefferson’s opposition as failing to cite case law, failing to address the

relevant standards, and failing to provide any factual analysis is correct. As a result, Floyd-

Jefferson fails to sustain her burden under Moore and Michael and judgment in Reynoldsburg’s

favor on her federal and state retaliation claims is GRANTED. See Muller; see also Adams; see

also Berryman v. SuperValu Holdings, Inc., No. 3:05cv169, 2010 U.S. Dist. LEXIS 32968, at *58-

60 (S.D. Ohio Mar. 31, 2010) (granting summary judgment in defendant’s favor because plaintiff

made no argument and presented no facts to support his retaliation claim).

V. CONCLUSION

For the reasons set forth above, Reynoldsburg’s Motion to Strike (ECF No. 32) is

MOOT and its Motions for Summary Judgment (ECF Nos. 16, 31) are GRANTED in part as

noted above. Floyd-Johnson’s federal claims are DISMISSED. Her state counts for race

discrimination, gender discrimination, hostile work environment and retaliation are

DISMISSED. Her state unequal pay and untimely compensation claims remain pending and are

REMANDED to state court for resolution.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

Sarah D. Morrison

United States District Judge