Lockhart v. Marietta City Schools

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MELANIE LOCKHART,

Plaintiff,

v. Civil Action 2:19-cv-2935

Magistrate Judge Jolson

MARIETTA CITY SCHOOLS, et al.,

Defendants.

OPINION AND ORDER

This matter, in which the parties have consented to the jurisdiction of the Magistrate Judge

pursuant to 28 U.S.C. § 636(c) (Doc. 11), is before the Court on Defendants William Hampton’s

and Marietta City School’s Motion for Summary Judgment (Doc. 34) and Motion for Leave to File

Supplemental Reply (Doc. 67). For the reasons that follow, Defendants’ Motion for Summary

Judgment (Doc. 34) is GRANTED. Defendants’ Motion for Leave to File Supplemental Reply

(Doc. 67) is DENIED.

I. BACKGROUND

Plaintiff Melanie Lockhart is a former middle school physical education teacher for the

Marietta City School District (“the District”). Plaintiff worked for the District for nearly twenty

years before she was terminated in February 2019. (See Doc. 48 at 12:4–23). The events leading

to her termination began roughly a year earlier, on Saturday, January 13, 2018, while she shoveled

snow for her neighbor.

A. January 13, 2018: The Shoveling Incident

While shoveling snow on the morning of January 13, 2018, Plaintiff believes she lost

control of her body, and a “supernatural power” lifted her and moved her roughly ten feet away.

(Id., 22:1–24:14). Months later, at her deposition, she elaborated:

I was going down a tunnel and–or a well, and I said, “I’m not afraid to die. I just

want to know is it going to hurt?” . . . And I kept falling faster and faster. And I

just said “Oh dear Lord. Please save me.” . . . I thought—that’s what I thought was

going to happen. And I fell through a red eye. I went through an eye and it

exploded. And that’s when all of a sudden the light, whiteness came to. I can’t

remember everything in terms of order. But the darkness and the—the—the—the

bars had me to the ground. They had me pinned. And it hurt so bad. I just kept

saying, “Oh dear Lord. It hurts.” And eventually I could finally move. I couldn’t

move. It was like one bar lifting at a time. . . .

(Id., 25:12–26:6). Plaintiff’s three children eventually found her. (Id., 27:25–28:7). Plaintiff

believes the “spirit of the Lord” “healed” her that morning and saved her from damnation. (Id.,

30:15–31:8). The following Monday through Thursday were snow days, so Plaintiff did not return

to work until Friday, January 19. (Id., 31:13–19).

B. January 19–23, 2018: Return to Work

Back at school, Plaintiff eagerly shared her experience with students and staff. She told

her entire class about it, (id., 47:5–12), and sought out Principal Brittany Schob to share her story,

(id., 50:25–51:12; Doc. 51, 25:4–21). Principal Schob later testified that Plaintiff “said that since

[her experience] her pain had gone away, and the only way that she could keep her pain away was

if she continued to tell people about her episode.” (Doc. 51, 25:18–21). Throughout the day,

Plaintiff continued to describe her experience for students and staff, keeping a group of eighth

grade students late after class. (Id., 28:20–29:1). Principal Schob did not discipline or otherwise

warn Plaintiff regarding her conduct at that time. (Doc. 51, 31:1–3).

Plaintiff’s discussions with students extended beyond school hours. That evening and over

the weekend, she exchanged emails with two students who said they were interested in learning

more about Plaintiff’s experience. (Id., 52:21–53:1). One student told Plaintiff that her “story

really moved” her, and she “feel[s] like [she] is the person [Plaintiff] [was] talking about[.]” (Doc.

41). Plaintiff responded:

2

I am so moved that I touched you and if you wonder if I am talking about

you, then chances are that I am. He does not tell me who, he only tells me what to

say so that person will know he is talking to them. I will say I locked eyes and was

drawn to several students in the group. I did not know why he was drawing me to

lock in on them, but I know now. Of the students I kept being drawn too [sic], 5 of

you have spoke [sic] to me. How freaky is that! Yes I have cried with

understanding as to why he is using me to tell my story. I had visions last night

from him and I did not fully understand until I opened my email this morning. My

work is not done and I can not tell you if I will give you the answers you are seeking

bit [sic] looking forward to our meeting.

I had a vision that I will be flooded with students seeking me out next week.

Even students that was [sic] not in the group. I do not know if this vision is correct

but I believe it is as I was told to go and tell Mrs. Schob what has happen [sic] with

me and what was going to happen so she would understand why students will be

asking teachers to come talk with me. I am not sure of [sic] I am ready for what is

to come, but knowing I will be able to handle it makes the process easier. Thank

you for reaching out to me and wanting to listen to what I was to tell you. He has

given me a gift and I feel so blessed that he has chosen me. Hope you are enjoying

this beautiful day.

Mrs. L

(Id.).

Another student wrote to Plaintiff, telling her she “sparked something in several of [her]

students,” and was “inspired” by Plaintiff “allowing god to use [her] to speak to others.” (Doc.

42). Plaintiff wrote back:

I must say WOW. I need you to know that your words are spoken well and

he is VERY PROUD of you. As we were in the group, he had me drawn to a few

students in that group. YOU being the first. I was not sure why I was drawn to you

but I know now. He was very pleased to see you light up and eager to listen as I

began to talk. He knew you understood from your beautiful smile. Of the students

that I was drawn to, 5 of you have spoken to me. There is one left. I do not know

if the person that you are speaking of is the other person that I was drawn to. May

I ask if it was a boy or a girl? If it was a boy, I believe I know who it was. You

pleased him with your actions of seeking out and talking to that student. He wants

you to know that you did NOT sound foolish!! He wants you to know that he is

speaking through you to them. That is why he allows me to tell people that I may

sound crazy when I start to talk. He wants me to assure them that I know it is not

normal to be able to say things that I do not know personally, yet I tell them what

they are feeling, doubting or fearing.

He has showed me visions of me touching students [sic] lives, several lives

at that. He showed me that I am going to have students ask to come and see me.

3

Yes, even students that was [sic] not even in the group. . .

(Id.).

On Monday, January 22, a concerned parent told Principal Schob that Plaintiff had a

troubling conversation with her daughter regarding Plaintiff’s visions. (Doc. 51, 31:16–32:24).

Principal Schob cautioned Plaintiff that morning, telling her to be careful and suggesting after-

school programs where she could more appropriately discuss her beliefs. (Id., 33:18–35:2). At

her deposition, Principal Schob testified that, during this exchange, Plaintiff said, “she could feel

what was happening inside of me, and my thoughts, and she put her hand on my hand, so she asked

to hold my hand during that time so she could feel what I was feeling.” (Id., 34:12–16).

Principal Schob grew more concerned. And that evening, when she attended a Marietta

Board of Education (“Board”) meeting, she asked the District’s Superintendent, William Hampton,

if they could meet. (Id., 39:5–9; see also Doc. 50 at 41:14–42:6). The two met the next morning

and discussed Plaintiff’s recent behavior. (Doc. 51, 39:24–40: 1). Superintendent Hampton

instructed Principal Schob to keep him updated while he considered next steps. (Id., 40:13–43:5).

Principal Schob and Assistant Principal Tim Fleming then met with Plaintiff. (Id.,

44:10– 12). Despite their concerns and warnings, Plaintiff told them not to worry and that the

school would make “national news,” a statement Principal Schob and Assistant Principal Fleming

both found alarming. (Id., 44:13–22; Doc. 48, 77:13–16). Principal Schob immediately called

Superintendent Hampton, who held a meeting with District administrators and Plaintiff that

afternoon. (Doc. 51, 45:18–24).

At the meeting, Plaintiff appeared “excited” to share her experience and “kept repeating

that she was going to make national news, that we were going to go to court,” and “that we would

all be there.” (Id., 58:13–25). Principal Schob later testified that she was concerned about

Plaintiff’s “state of mind,” (id., 59:20–21), and Superintendent Hampton described the meeting as

“bizarre,” (Doc. 50, 58:25). School administrators questioned Plaintiff about any medications or

4

drug use, and Plaintiff said she smoked marijuana in June 2017 and used CBD oil for pain relief.

(Doc. 51, 59:24–63:7).

After meeting for roughly two hours, Superintendent Hampton placed Plaintiff on paid

administrative leave. (Id., 64:2–6). He handed her an official letter to that effect, which provided

in relevant part:

During this period of leave . . . You are not to communicate by any means, or

through any other person, with the students of the Marietta City Schools or their

parents/families regarding your employment. You must not engage in any

communications with other Marietta City School District employees on matters

related to your employment, this investigation, or this leave; except that, you may

communicate with union representatives. If you violate this directive, it will

constitute insubordination and may result in disciplinary action up to and including

termination of your employment.

(Doc. 50-10).

C. January 24, 2018: Police Report and Subsequent Events

The next day, January 24, Principal Schob and Superintendent Hampton received a call

from the Washington County Sheriff’s Office. (Id., 86:11–21). Apparently, a concerned citizen

contacted law enforcement about one of Plaintiff’s recent Facebook posts, which stated:

I NEED you ALL, to know that you will be seeing and hear [sic] some things about

me in the NEAR future. I may sound crazy but I need you to believe in me. You

will JUDGE and you will say you don’t believe. I need you to see this as I know

what it is about to happen will be in the National News. DO NOT WORRY

ABOUT ME I AM NOT SCARED! You will learn things about me that I am ok

with you knowing. Again, DO NOT JUDGE ME. I can NOT and will NOT be

able to speak to any of my colleagues or students about this no matter of [sic] our

relationship and you are not to contact me as I can NOT respond! I can NOT and

will NOT use FB to communicate to the rest of you. I need you ALL to believe in

me. This is going to be the BEST RIDE of my life !!! I am so excited for this and

you will all understand when its [sic] over.

I NEED everyone to share this. I NEED people to see my face and learn my name.

Share share share. I ASK that you do it for me.

I know several of you will contact my family about what is going on[.] They will

know what to tell you and I believe in them. I NEED to leave you with this

5

I HEAR I FORGET

I SEE I REMEMBER

I DO I UNDERSTAND

I LOVE YOU ALL!!!!

(Doc. 44). Because of the post, police officers were dispatched to Plaintiff’s house in West

Virginia for a wellness check. (Doc. 34-1). They concluded she was not a threat to herself or

others and was not under the influence of drugs or alcohol. (Id.).

Roughly one week later, on February 3, Plaintiff wrote to Superintendent Hampton, asking

for the specific charges against her. (Doc. 50-13). Superintendent Hampton responded that the

District had “not yet completed all that needs to be done with regard to any charges/allegations,”

but that he would do so following the investigation. (Id.). He also promised to provide Plaintiff

with “a date/time for a meeting to discuss the allegations (i.e., your opportunity to be heard).”

(Id.).

D. February 8–March 6, 2018: Mental Health Evaluations

In early February, the District hired licensed psychologist Fred Lee to evaluate Plaintiff

and determine her fitness for duty. On February 8, Superintendent Hampton sent Mr. Lee’s office

a letter describing Plaintiff’s recent conduct and attaching a summary of events prepared by

Principal Schob. (Doc. 50-14). In the meantime, Plaintiff arranged for her own psychological

evaluation with supervised psychologist Amber Davis. (Doc. 60-1).

Plaintiff attended her evaluation with Ms. Davis first, on February 16, 2018. (Id.).

Following several tests, Ms. Davis concluded:

. . . According to her profile, Ms. Lockhart is likely unwilling to engage in

self-examination of her role in difficult life situations, and may react erratically if

pushed to do so. . . .

Ms. Lockhart exhibits a forceful and driven energy level. Her profile

indicates a high level of emotional excitability and zealousness, and a tendency to

present in a highly animated and sometimes quick-tempered manner. Her driven

nature does not necessarily result in effective achievements and she may become

6

obstinate, inappropriate, and caustic as a result.

Ms. Lockhart displays an infectious enthusiasm and ability to dispel tension

in social situations. However, her exuberance can become intrusive and

overbearing.

. . . Ms. Lockhart’s profile indicates that she has a preoccupation with

grandiose fantasies. She is inclined to exaggerate her power, perceive failures as

successes, and construct intricate and lengthy rationalizations. Further, she is likely

to deprecate those who do not accept or promote her superior self-image.

(Id.).

Ultimately, Ms. Davis diagnosed Plaintiff with unspecified disorder of adult personality

and behavior; other psychiatric disorder not due to a substance or known physiological condition;

risk of bipolar disorder, current episode manic severe with psychotic features; and risk of

schizophrenia, unspecified. (Id.). Ms. Davis further opined that, with treatment, including

medication management and psychotherapy, Plaintiff had a “fair” prognosis. (Id.).

On February 22, Plaintiff attended her evaluation with Mr. Lee. (Doc. 34-2 at 9–10). Mr.

Lee issued his initial report on February 26. (Id.). In his report, Mr. Lee noted Plaintiff’s

“willingness to be cooperative” during the examination. (Doc. 50-17). He noted she “would

benefit from a psychiatric review and medication regimen and monitoring.” (Id.). Superintendent

Hampton promptly followed up, requesting Mr. Lee’s specific opinion as to whether Plaintiff could

perform the essential functions of her job. (Doc. 50, 102:15–25; see also Doc. 50-18). Mr. Lee

issued a second report on March 6 with his opinion regarding Plaintiff’s ability to return to work.

(Doc. 34-2).

In this subsequent report, Mr. Lee elaborated on the results of various tests performed

during Plaintiff’s evaluation:

. . . Her Rorschach shows a serious impairment to think logically and

coherently with her being less able than most people to reach reasonable

conclusions about the interrelationships among events and of maintaining an

associated flow of thought so that one idea follows another in an understandable

fashion. Similarly, her reality testing is awry with her prone to misinterpret events

and to arrive at erroneous notions about people and the significance of their actions.

7

This is a significant liability that is likely to result in her often failing to foresee the

consequences of her actions. Her inaccurate interpretations of people and events

are apt to lead to poor judgments and ill-advised conduct. Many individuals with

her degree of impaired reality testing have trouble managing even living without a

degree of supervision and often meet criteria for a psychotic degree of disturbance.

. . .

. . . Other aspects of her Rorschach responses reveal a Pollyanna kind of

denial aimed at keeping oneself in good spirits by warding off and refusing to

acknowledge the existence of darker or more critical dispositions. Such contrived

avoidance and flight into more grandiose imaginings constitutes a fragile

defensiveness. Further, she experiences herself as having been chosen by an inner

voice which she attributes to God for a special mission involving the reaching out

to those who have been traumatized by abusive treatment. She is being directed in

this ambition by her voice which has not only healed her but is guiding her in this

objective and prophesying an expanding outreach that will ultimately capture

national attention. It is further the case that her voice has informed her that if she

deviates from its mandates her healing will evaporate so she is operating under an

inner compulsion that is unchecked by an overriding rationality. Diagnostically she

exhibits a Bipolar I Disorder, Manic Type with Psychotic features.

(Doc. 34-2). Ultimately, Mr. Lee concluded that he did “not regard [Plaintiff] as capable of

performing the essential functions of her current position as teacher and within the legal and ethical

boundaries of Marietta City Schools and her profession.” (Id.).

E. March 20, 2018: Initial Pre-Disciplinary Meeting

On March 20, 2018, Plaintiff attended a pre-disciplinary meeting. At the meeting, the

District raised four allegations against her:

1. admitted and recent use of marijuana;

2. using your position as a teacher for [the District] to discuss, share, and teach about

your religion/your religious beliefs with students and others during the student

instructional day;

3. [e]ven though you are aware that you are not to discuss your religious beliefs,

experiences, etc. at school and with students, you affirmatively stated that you no

longer have control over what you say (indicating that God tells you what to say

and to whom); and

4. Mr. Lee’s professional opinion that you are not capable of working as a teacher.

8

(Doc. 50-22).

Plaintiff disputed the District’s allegation that she smoked marijuana “recently,” clarifying

that she smoked marijuana only once in June 2017, and that she used legal CBD oil for pain relief.

(Doc. 50, 112:14–113:6). According to Principal Schob’s notes from this meeting, Plaintiff also

explained that she emailed only with students who were interested in learning more about her

religious experience and only outside of school hours. (See Doc. 51-2).

F. March 2018: Social Media Communications with Students

While on paid administrative leave, Plaintiff, despite the District’s clear instructions,

communicated with several students over private Facebook messages. (See Docs. 45, 46). After

her initial pre-disciplinary meeting, she messaged one of her students:

Hey beautiful. I hope you are doing well. I am doing great!! So sorry I abandoned

you and the other students. I was forced to leave. Do not trust Mrs. Schob, Mr.

Fleming and even Mr. Benson. My heart aches for them and what they have done

that has not been right with removing me from the school. There is so much to this.

They along with the Superintendent have lied about things and I have proof. They

don’t understand my gift and what I know. . . . Please do not ask or talk to any of

them about this until after Monday evening. . . .

(Doc. 46 at 41).

Around the same time, Plaintiff sent a similar message to another student:

Morning beautiful! I need you to know I am not angry at you. You have NOT done

anything wrong. I love you. I know your heart is filled with sadness and you think

you let me down. You did everything RIGHT. What zi [sic] do need is your mom

to call me ASAP. Your mom has a law suit against the school for what they just

did to you. [redacted]. They violated your rights and did it all wrong according to

the law. She needs to call me now!!! This is very important, listen to your heart

and trust me. I told you that Mrs. Schob, and Ms. Fleming could not be trusted.

This was all in his plan, believe me. . . .

I want you to enjoy your trip and remember, they (schob, fleming, hamton [sic])

told you when they pulled you [to] the office after school hours, to let them know

9

if I contacted you. They may [sic] even threatened you or tried to make you think

I brainwashed you. You, me and God know what happened when I told my story .

. .

You do not have to do as they tell you. This is bullying at its finest. You are a

victim. There is so much to all of this and you are only hearing their side of the

story, what they want you to hear. DO NOT BE AFRAID TO STAND UP FOR

YOURSELF. Do not tell anyone that I contacted you. They will go behind your

back and tell again because they think they can trust them. Trust me, IAM [sic]

THE ONE YOU NEED TO TRUST. Please just enjoy the rest of your trip and just

put this behind you until you get home. I dearly love you. Have they told you that

they love you? Know that Mrs. Lockhart does.

(Id. at 11–20).

Plaintiff also told a student that her visions allow her to solve murder cases and offered to

talk to and receive “visions” from that student’s uncle, who she believes “was set up” for a crime.

(Id. at 23). She asked another student to “do [her] a favor” “on the down low” and “try to get as

many students and parents” to show their support for her and attend the upcoming Board meeting.

(Doc. 45). In asking for this favor, Plaintiff referenced that student’s prior detentions, saying she

knew what it was like to be “falsely accused of something.” (Id.).

G. April 5, 2018: Second Pre-Disciplinary Meeting

Following her initial pre-disciplinary meeting, Plaintiff received notice of a second one,

which took place on April 5. (Doc. 50-24). This notice added several new allegations against

Plaintiff:

1. On or about January 23, 2018, you were placed on paid administrative leave

pending an investigation into allegations of misconduct. The letter expressly

advised you that, among other things, “you are not to communicate by any

means, or through any other person, with the students of the Marietta City

Schools or their parents/families regarding your employment.” Beginning [on]

or about Saturday, March 24, 2018, and continuing thereafter, you

communicated by text message with a student of Marietta schools about your

employment and various other issues related to your employment.

2. It is also believed that you have been in contact with other students of Marietta

10

Schools about your employment and related matters.

3. Given your persistent refusal to comply with the directives given to you, there

may be additional evidence of the foregoing misconduct and/or additional

allegations of misconduct that arise between now and the time of the meeting.

If so, these allegations and evidence will be presented to you.

(Id.). The notice further informed Plaintiff, “[b]ased upon the information presented at the

meeting . . . a recommendation may be made to the Board following the meeting to take

disciplinary action, up to and including termination of your employment.” (Id.).

Plaintiff appeared at the April 5 Board meeting with legal counsel. She read from a

prepared statement, asserting: (1) the District discriminated against her based on her disability;

(2) the District was required to accommodate her; and (3) Superintendent Hampton inappropriately

disclosed her private medical information. (Doc. 50-26). She asked the Board to “table this

resolution” pending “an investigation by the board members to determine Mr. Hampton’s

Unethical Code of Professional Conduct.” (Id.). She went on to say, “[i]f you vote on a resolution

of termination, he [Superintendent Hampton] is just involving you in the litigation because you

are now aware of the violations that has [sic] occurred against me and not trying to protect me or

yourselves as the BOE.” (Id.).

After the meeting, Superintendent Hampton recommended to the Board that Plaintiff be

terminated. (Doc. 34-5). Plaintiff received notice of this decision, as well as a brief summary of

the allegations against her:

These allegations, which were set forth in the pre-disciplinary meeting notices

provided to you, involved your admission to the illegal use of marijuana, your

misconduct in using your position as a teacher for the Marietta City Schools to

discuss, share, and teach about your religion/your religious beliefs with students

and others during the instructional day and at other times, and your defiance of the

directive not to communicate with students of Marietta Schools about your

employment and related matters while you were on paid administrative leave (both

11

before and after you were issued the second pre-disciplinary meeting notice). In

addition, Dr. F. Lee conducted a fitness for duty examination on February 22, 2018,

and found that you are not fit for duty.

(Id.).

The Board then voted to accept Superintendent Hampton’s recommendation to proceed

with termination proceedings against Plaintiff and to suspend her without pay. (Doc. 50, 131:12–

15; see also Doc. 50-27 (Board meeting minutes)).

H. December 4, 2018: Administrative Hearing

Upon receiving notice of the Board’s decision, Plaintiff requested a public hearing before

a referee. The District scheduled the hearing for May 4, 2018, but for unspecified reasons, later

rescheduled it for December 4, 2018. (Doc. 47, 119:21–120:4). At the hearing, David Hipp served

as the referee, and numerous administrators, including Principal Schob and Superintendent

Hampton, testified. (See generally Doc. 47). Plaintiff also testified, along with several witnesses

on her behalf, including the police officer who conducted her wellness check and her husband.

(See id.).

When asked to clarify her earlier statements regarding the school making “national news,”

Plaintiff testified:

I didn’t know yet at the time. But what I meant was, we were going to be in the

news, we were to be in the paper, we were going to be on television, and it’s going

to spread like wildfire throughout the United States. That’s what–in terms of–of

what was happening.

(Id., 200:16–22).

She also testified that she smoked marijuana “on [her] personal time in the summer” to

help with back pain. (Id., 206:3–13).

And she recounted how she shared her religious experience with students:

12

Q. Did you ever use your position as a teacher to discuss sharing and teaching

religion and religious beliefs?

A. No. I told my story.

Q. Did you say you no longer have control over what you have to say?

A. At that time, yes, I was just learning what was going on and how to control it.

At that time, I said yes. But as of now I understand everything. I can control. I

know exactly what’s being told of me, and I understand everything.

(Id., 222:8–18).

Plaintiff then testified that she “ha[s] to follow his orders to remain pain-free,” (id.,

258:19– 20), but that she was in control of her thoughts and actions and was capable of teaching

students, (id., 265:16–20). Following post-hearing briefing, Referee Hipp issued a Report and

Recommendation (“R&R”) that Plaintiff’s teaching contract be terminated. (See Doc. 50-29).

I. February 25, 2019: Board Meeting

On February 25, 2019, the Board unanimously voted to adopt a resolution to accept Referee

Hipp’s R&R. (Id.). The District officially terminated Plaintiff on February 27, 2019. (Id. at 1).

J. Post-Termination

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (“EEOC”) in the spring of 2019, which then issued a Right to Sue Letter. (Doc. 65).

Beginning in the new year, in January 2019, Plaintiff began substitute teaching for two other school

districts until they closed in March 2020, due to the COVID-19 pandemic. (Doc. 48, 9:2–10:20).

* * *

Plaintiff filed this lawsuit in July 2019 for disability and religious discrimination, as well

as retaliation. (Doc. 1). Defendants moved for summary judgment on September 4, 2020. (Docs.

1, 34). The matter is fully briefed and ripe for resolution.

13

II. STANDARD

Summary judgment is appropriate when “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 party seeking

summary judgment bears the initial “responsibility of informing the district court of the basis for

its motion, and identifying those portions” of the record that demonstrate “the absence of a genuine

issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to

the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (citing Adickes v. S.H.

Kress & Co., 398 U.S. 144, 158–59 (1970)). A genuine issue of material fact exists if a reasonable

jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; see also Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (defining “genuine” as more than

“some metaphysical doubt as to the material facts”). Consequently, the central issue is “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.

III. DISCUSSION

Broadly speaking, this case is about Plaintiff’s termination. But Plaintiff’s precise claims

are not entirely clear. In her Complaint, she sets forth claims for disability discrimination under

both federal and Ohio law, (Counts One and Two), as well as for religious discrimination and

retaliation in violation of Ohio law (Counts Three and Four). Defendants move for summary

judgment on each. (See generally Doc. 34). Yet Plaintiff also seems to allege that Defendants

failed to accommodate her disability, (see Doc. 1, ¶ 42), even though that claim is not clearly

brought. But, importantly, the parties make arguments regarding the claim; therefore, the Court

considers it, too. (See generally Docs. 34, 54, 60).

14

A. Disability Discrimination (Counts One and Two)

Plaintiff’s state and federal disability discrimination claims rise and fall together. Ohio’s

law governing claims for disability discrimination “parallels” the federal Americans with

Disabilities Act (“ADA”) “in all relevant respects[.]” Belasco v. Warrensville Heights City Sch.

Dist., 634 F. App’x 507, 514 (6th Cir. 2015) (quotation marks and citation omitted). So the Court

applies federal law to these claims. See id. (quotation marks, citations, and alteration omitted)

(“[T]his court applies the same analytical framework, using cases and regulations interpreting the

ADA as guidance in our interpretation of Ohio Rev. Code § 4112.02.”).

The ADA “prohibits discrimination against a ‘qualified individual’ on the basis of

disability.” Conley v. Lakota Local Sch. Dist., No. 1:16-CV-01105, 2017 WL 978545, at *2 (S.D.

Ohio Mar. 14, 2017) (internal quotation marks omitted) (quoting Kleiber v. Honda of Am. Mfg.,

Inc., 485 F.3d 862, 868 (6th Cir. 2007)). Because direct evidence of discrimination in the

workplace is rare, the Court applies a burden-shifting framework to Plaintiff’s claims. Belasco,

634 F. App’x at 517 (citing Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 431 (6th Cir.

2012)).

Under this framework, Plaintiff bears the initial burden to establish her prima facie case.

She must demonstrate (1) she was disabled at the time of the adverse employment action; (2) she

was otherwise qualified for the position, with or without reasonable accommodation; (3) she

suffered an adverse action; (4) the employer knew or had reason to know of her disability; and

(5) she was replaced or the job remained open. Belasco, 634 F. App’x at 517 (citing Rosebrough,

690 F.3d at 431). Plaintiff’s burden “in establishing a prima facie case is not onerous and is easily

met.” Wallace v. Edward W. Sparrow Hosp. Ass’n, 782 F. App’x 395, 404 (6th Cir. 2019).

If Plaintiff establishes her prima facie case, the burden shifts to Defendants to articulate a

legitimate, nondiscriminatory reason for terminating her. Belasco, 634 F. App’x at 517 (citing

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Jones v. Potter, 488 F.3d 397,

15

404 (6th Cir. 2007)). If Defendants do so, the burden returns to Plaintiff to prove by a

preponderance of the evidence that Defendants’ “proffered reason[s] w[ere] in fact a pretext

designed to mask illegal discrimination.” Belasco, 634 F. App’x at 517 (quotation marks and

citations omitted).

1. Prima Facie Case

Defendants challenge only one element of Plaintiff’s prima facie case—her qualifying

disability. “Under the ADA, ‘disability means either (1) a physical or mental impairment that

substantially limits one or more major life activities, (2) a record of such an impairment, or

(3) being regarded by one’s employer as having such an impairment” even, if in fact, you are not

disabled. Chaniott v. DCI Donor Servs., Inc., No. 3:19-CV-00222, 2020 WL 4937515, at *5 (M.D.

Tenn. Aug. 24, 2020) (quoting 42 U.S.C. § 12102(1)).

Defendants’ argument is simple: Plaintiff does not believe she was or is disabled, so how

can she claim Defendants discriminated against her on the basis of her disability? (Doc. 34 at

22– 23). But that is not the standard. Plaintiff must simply produce “evidence from which a jury

could find that” she had a disability when she was terminated. Corbett v. Harvey, No. 2:06-CV-

761, 2008 WL 731487, at *10 (S.D. Ohio Mar. 17, 2008). And the Court does not stringently test

that evidence. See Barlia v. MWI Veterinary Supply, Inc., 721 F. App’x 439, 445 (6th Cir. 2018).

Indeed, “[h]aving concluded that the courts were defining ‘disability’ too narrowly,

Congress amended the ADA in 2008 to state that the term should be construed in favor of broad

coverage, to the maximum extent permitted by the ADA’s terms.” Id. (alterations, quotation

marks, and citations omitted). Relevant here, “Congress explicitly rejected a number of standards

formulated by the Supreme Court, such as the requirement that the impairment be permanent or

long-term to qualify as a disability under the ADA.” Id. (quotation marks and citations omitted).

“Congress also cautioned that the question of whether an individual’s impairment is a disability

should not demand extensive analysis.” Id. (ellipses, quotation marks, and citation omitted).

16

Plaintiff has met her burden here. There are two medical reports in the record, which were

issued within several months of the Board’s decision to initiate termination proceedings against

her. Both reports concluded that Plaintiff suffered from serious psychological issues. As noted,

Mr. Lee concluded that, “[d]iagnostically [Plaintiff] exhibits a Bipolar I Disorder, Manic Type

with Psychotic features.” (Doc. 34-2 at 7). Crucially, he found she was not “capable of performing

the essential functions of her current position as [a] teacher[.]” (Id.). Similarly, Ms. Davis noted

the following diagnoses: unspecified disorder of adult personality and behavior; other psychotic

disorder not due to a substance or known physiological condition; risk of Bipolar Disorder, current

episode manic severe with psychotic features; and risk of Schizophrenia, unspecified. (Doc. 60-1

at 4).

Based on this evidence, a reasonable jury could conclude Plaintiff was disabled when

Defendants terminated her. See, e.g., Chaniott, 2020 WL 4937515, at *5 (emphasis omitted)

(holding that plaintiff satisfied his prima facie case where there was “a great deal of evidence in

the record that [he] suffered from mental health symptoms”). And since Defendants challenge

only that element of Plaintiff’s prima facie case, the burden now shifts to them, to offer a

legitimate, nondiscriminatory reason for terminating Plaintiff. See, e.g., Moates v. Hamilton Cty.,

976 F. Supp. 2d 984, 991 (E.D. Tenn. 2013) (addressing only the disputed elements of plaintiff’s

prima facie case).

2. Legitimate, Nondiscriminatory Reasons

An employer’s burden to set forth one or more legitimate, nondiscriminatory reasons for

terminating an employee is one of production, not persuasion. Sjostrand v. Ohio State Univ., 750

F.3d 596, 599 (6th Cir. 2014). It must “‘simply explain[] what [they] ha[ve] done or produce[]

evidence of legitimate nondiscriminatory reasons.’” Tri-Cities Holdings LLC v. Tenn. Health

Servs. & Dev. Agency, No. 2:13-CV-305, 2017 WL 3687846, at *15 (E.D. Tenn. Aug. 25, 2017),

aff’d sub nom. Tri-Cities Holdings LLC v. Tenn. Admin. Procedures Div., 726 F. App’x 298 (6th

17

Cir. 2018) (internal quotation marks omitted) (quoting Burdine, 450 U.S. at 256). An employer’s

burden is slightly higher, however, if it terminated an employee for conduct potentially caused by

the employee’s disability, as is the case here. See Yarberry v. Gregg Appliances, Inc., 625 F.

App’x 729, 739 (6th Cir. 2015).

Defendants say they terminated Plaintiff for four reasons. Notably, they are the same as

those set forth at the Board’s April 5, 2018, meeting. They include: (1) Plaintiff’s illegal use of

marijuana; (2) Plaintiff’s use of her position as a teacher to discuss, share, and teach students about

her religious beliefs; (3) Plaintiff’s disobedience of instructions not to discuss her religious beliefs

or ongoing termination proceedings with others, namely students; and (4) Plaintiff’s inability to

perform the essential functions of her job as a teacher. (Doc. 34 at 25–31). There is no evidence

to suggest that Plaintiff’s use of marijuana stemmed from her mental health disability. But the

same is not true regarding Plaintiff’s other conduct. The Court, accordingly, applies a different

standard to Defendants’ latter three explanations.

i. Non-Disability Related Conduct

Because Plaintiff’s marijuana use is unrelated to her disability, Defendants’ burden

concerning Plaintiff’s use of marijuana is straightforward. They simply must “‘explain[] what

[they] ha[ve] done or produce[] evidence of legitimate nondiscriminatory reasons.’” Tri-Cities

Holdings, 2017 WL 3687846, at *15 (internal quotation marks omitted) (quoting Burdine, 450

U.S. at 256). It is undisputed that Plaintiff smoked marijuana while working as a teacher. She

testified at her deposition that she “smoked [marijuana] a couple times,” (Doc. 48, 38:3–13), and

testified at her public hearing that she smoked marijuana “on [her] personal time,” (Doc. 47, 204:

7–10).

18

Defendants explain that not only is the recreational use of marijuana illegal in Ohio, but

Plaintiff, as a role model to middle school students, could “creat[e] an appearance that such activity

is acceptable.” (Doc. 34 at 27). Defendants’ explanation constitutes a legitimate,

nondiscriminatory reason for terminating Plaintiff. See Adkins v. Excel Mining, LLC, 214 F. Supp.

3d 617, 624 (E.D. Ky. 2016) (noting that “[t]he violation of a company drug or alcohol policy is a

legitimate, nondiscriminatory reason for firing an employee”); EEOC v. Pines of Clarkston, No.

13-CV-14076, 2015 WL 1951945, at *5 (E.D. Mich. Apr. 29, 2015) (noting that “discharge for

illegal drug use is a permissible nondiscriminatory reason”).

Again, Defendants need not persuade the Court that they terminated Plaintiff because of

her marijuana use. Tri-Cities Holdings, 2017 WL 3687846, at *15. Indeed, the Court can make

“‘no credibility assessment’” as to this proffered reason. Martin v. Huron Valley Ambulance, Inc.,

226 F. Supp. 3d 871, 884 (E.D. Mich. 2016) (internal quotation marks omitted) (quoting Reeves v.

Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000)). Rather, because Defendants produced

evidence supporting this proffered reason, they have met their burden. See Tri-Cities Holdings,

2017 WL 3687846, at *15.

ii. Disability-Related Conduct

Turning to Plaintiff’s remaining conduct, communicating with students about her religious

experience and employment proceedings, there is evidence that this conduct stemmed from her

disability. But that does not mean that Defendants’ hands were tied. “[T]he ADA does not protect

employees from the consequences of violating conduct requirements even where the conduct is

caused by the disability.” Yarberry, 625 F. App’x at 739 (quotation marks and citation omitted).

“Employers not only have latitude to discipline employees for threats of violence, stealing, or

destruction of property, but also may prohibit inappropriate behavior between co-workers, [or]

prohibit employees from sending inappropriate or offensive emails[.]” Id. In other words,

“[h]aving a disability does not insulate an individual from adverse employment action.” Sullivan

19

v. River Valley Sch. Dist., 20 F. Supp. 2d 1120, 1127 (W.D. Mich. 1998), aff’d, 197 F.3d 804 (6th

Cir. 1999).

Here, Defendants sought to enforce policies prohibiting teachers from sharing their

religious beliefs and engaging in inappropriate communications with students, especially when

explicitly instructed not to do so. (See generally Doc. 34). And Defendants were free to enforce

these policies “as long as [they] are job-related and consistent with a business necessity.”

Yarberry, 625 F. App’x at 739. This includes all policies, even those “not found in workplace

policies, employee handbooks or other such documents[.]” Id.

The Sixth Circuit’s decision in Yarberry v. Gregg Appliances provides guidance here. In

Yarberry, the plaintiff, an appliance sales manager at an Hhgregg store, was terminated after

experiencing a manic episode in which he broke into the store after-hours. 625 F. App’x at

731– 34. The store’s surveillance footage showed him “locking himself in the building, going to

the safe in the manager’s office, placing a box inside and closing it[,] wander[ing] around the store

and play[ing] on the computers for several hours.” Id. at 731. Shortly thereafter, he was

involuntarily committed to a psychiatric hospital and diagnosed with Bipolar Disorder. Id. at

733– 34.

Hhgregg terminated the plaintiff for his conduct, citing a violation of store safety and

security policies, as well as general behavior standards for management. Id. at 740. But according

to the plaintiff, because his “behavior directly stemm[ed] from his bipolar disorder,” Hhgregg

could not terminate him. Id. at 738. Not so, said the Court. Hhgregg could properly terminate the

plaintiff for his conduct as long as its reasons for doing so were job-related and consistent with

business necessity. Id. at 740. To make that finding, the Court considered five relevant factors:

(a) the manifestation or symptoms of a disability affecting an employee’s conduct;

(b) the frequency of occurrences;

(c) the nature of the job;

20

(d) the specific conduct at issue; and

(e) the working environment.

Id. at 740.

The facts of Yarberry presented the Court with a “close case.” Id. On one hand, “the manic

episode apparently associated with [plaintiff’s] bipolar disorder that caused him to enter a Hhgregg

store after hours was non-violent and occurred only once.” Id. Given that, the Court was

“concern[ed] with “Hhgregg’ s decision to terminate a previously successful employee so quickly

after such an isolated event[.]” Id. On the other hand, the plaintiff’s “behavior in entering a store

after hours, opening the safe, roaming around the store and using store equipment, and then leaving

the store without setting the alarm, all gave Hhgregg grounds for terminating him for his conduct

alone[.]” Id. “In light of these specific facts, Hhgregg had legitimate, nondiscriminatory reasons

for the termination.” Id.

This case is less close than Yarberry was. Plaintiff’s conduct was not isolated to one

incident. Nor did it involve only her. To the contrary, Plaintiff discussed her religious experience

and ongoing suspension and termination proceedings with her students multiple times. Before her

administrative leave, she exchanged emails with at least two students. (See Docs. 41, 42). And

once placed on administrative leave, Plaintiff received direct instructions not to communicate with

students. (Doc. 50-1). Yet, her communications continued. She told one student her visions could

help defend her uncle in a lawsuit. (Doc. 46 at 23). And she repeatedly told students that school

administrators were lying to them—and warned students to keep school administrators in the dark

about their contact. (See Docs. 45, 46).

Considering each Yarberry factor, the Court concludes that Defendants terminated Plaintiff

for reasons that were job-related and consistent with business necessity. Beginning with the first

two factors, the manifestation of her symptoms and the frequency of her conduct, Plaintiff’s

symptoms manifested quickly, and she displayed an utter disregard for the District’s rules. Even

21

more troubling is the substance of her communications with students. They establish Plaintiff did

not intend to follow the District’s rules or work with school administrators to save her job. Far

from it, she frequently sent inappropriate private Facebook messages and emails urging students

to distrust and disobey their teachers and principal.

The final three factors—the nature of her job, the specific conduct at issue, and the working

environment—are, in the Court’s view, the most significant. Plaintiff’s conduct impacted her

students. She used her close relationship with them to attempt to bypass the District’s instructions

and garner their support. She also used her purported visions and religious experience to meddle

with her students’ personal lives. Defendants legitimately found she crossed ethical and

professional boundaries as a result. In sum, because the Court finds that Defendants’ policies are

job-related and consistent with business necessity, the burden now returns to Plaintiff. See

Yarberry, 625 F. App’x at 740.

3. Pretext

Plaintiff must now prove by a preponderance of the evidence that Defendants’ proffered

reasons were mere pretext for disability discrimination. Jones, 2015 WL 1036382, at *6 (citations

omitted). Because Defendants offer multiple reasons for terminating Plaintiff, she must “manage[]

to cast substantial doubt on a fair number of them.” Nathan v. Ohio State Univ., 984 F. Supp. 2d

789, 801–02 (S.D. Ohio 2013), aff’d, 577 F. App’x 544 (6th Cir. 2014). She may do so through

three methods of proof.

First, she can offer evidence showing that there is no basis in fact to Defendants’ proffered

reasons. To succeed, she must establish that the conduct warranting her termination “never

happened, i.e., that [it] [is] actually false.” Williams v. Graphic Packaging Int’l, Inc., 790 F. App’x

745, 751 (6th Cir. 2019). Second, Plaintiff may produce circumstantial evidence showing that

Defendants’ proffered reasons did not actually motivate their decision to terminate her. Deister v.

Auto Club Ins. Ass’n, 647 F. App’x 652, 656 (6th Cir. 2016). For example, “inconsistent or

22

contradictory statements from [Defendants] could cast doubt on [their] motivation, giving rise to

an inference of pretext.” Merendo v. Ohio Gastroenterology Grp., Inc., No. 2:17-CV-817, 2019

WL 955132, at *12 (S.D. Ohio Feb. 27, 2019) (citing Tinker v. Sears, Roebuck & Co., 127 F.3d

519, 523 (6th Cir. 1997)). At base, “the sheer weight of [this evidence]” must “make[] it more

likely than not” that Defendants’ explanation “is a pretext, or a coverup.” Hedrick v. W. Reserve

Care Sys., 355 F.3d 444, 460 (6th Cir. 2004) (quotation marks omitted). Finally, Plaintiff may

offer evidence showing that Defendants’ proffered reasons were insufficient to warrant her

termination. Hendrick, 355 F.3d at 460. This “ordinarily, consists of evidence that other

employees, particularly employees not in the protected class, were not fired even though they

engaged in substantially identical conduct to that which the employer contends motivated its

discharge of the plaintiff.” Id. (citation omitted).

Regardless of which method Plaintiff uses, a reasonable jury must be able to conclude by

a preponderance of the evidence that her disability was a “but for cause” of her termination. In

other words, “challenging [Defendants’] proffered reason[s] for her termination” is not enough.

Snyder v. Shelby Cty. Bd. of Educ., No. 2:14-CV-02048-DKV, 2015 WL 13022301, at *10 (W.D.

Tenn. June 17, 2015), aff’d, 647 F. App’x 618 (6th Cir. 2016). She must go a step further and

“provide evidence from which the fact finder could conclude that [her] termination . . . was really

because of her disability.” Id. (citing Wright v. Memphis Light, Gas & Water Div., 558 F. App’x

548, 558 (6th Cir. 2014)).

The Court addresses each of Plaintiff’s pretext arguments in turn.

i. Admitted Use of Marijuana

As to Defendants’ first proffered explanation, Plaintiff attempts to create a factual

discrepancy where there is none. She notes that Defendants’ March 13, 2018, pre-disciplinary

letter falsely accused her of smoking marijuana “recently” and during the work week.” (Doc. 54

at 40). But in terminating Plaintiff, and at summary judgment, Defendants’ explanation is not so

23

narrow—they simply cite her “admitted use of illegal marijuana on various dates during January

2018, and possible earlier dates[.]” (Doc. 34 at 25). And Plaintiff admitted at her deposition that

she “smoked [marijuana] a couple times” and testified at her public hearing that she used marijuana

in June 2017. So Plaintiff cannot show that there is no basis in fact to Defendants’ first explanation.

Next, Plaintiff contends that her seldom use of marijuana does not rise to a terminable

offense. (Doc. 54 at 32). According to her, the District “would probably have to fire a lot of

people if the threshold is ‘have you ever smoked any marijuana in your lifetime?’” (Id.). But “[i]t

is not enough . . . to disbelieve the employer, the factfinder must believe the plaintiff’s explanation

of intentional discrimination.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 512 n.4 (1993).

Plaintiff has presented no evidence that another teacher for the District, particularly one without a

disability, used marijuana or other recreational drugs and was not fired as a result. See Hendrick,

355 F.3d at 461. Her “[m]ere conjecture” regarding the District’s stance on marijuana is not

enough to show pretext. Upshaw v. Ford Motor Corp., 576 F.3d 576, 587 (6th Cir. 2009).

ii. Discussing Religion

Plaintiff makes two arguments regarding Defendants’ second reason. To begin, she

contends that she did not violate school policy by sharing her religious beliefs with students. (Doc.

54 at 33–34). In support, she relies on handwritten accounts from students who say that she never

“preached” religion. (Id. at 33). But Defendants do not say they terminated Plaintiff because she

violated an express provision in the teacher handbook regarding religion. Rather, they terminated

her because she inappropriately discussed her religious experience with students during the

instructional day and over email after school. (See Doc. 34 at 27). And Plaintiff does not deny

doing so. See Williams, 790 F. App’x at 751 (noting that, to show an explanation has no basis in

fact, the plaintiff must show that the alleged conduct “never happened”). Her first argument fails

as a result.

Plaintiff also asserts this reason did not motivate Defendants’ decision to fire her. (Doc.

24

54 at 34). For evidence, she attempts to create an inconsistency in the timeline. She emphasizes

that Principal Schob did not immediately discipline her after learning about her conduct. (Id.). So,

she says, if Principal Schob was “fine with” her conduct why did it “allegedly le[ad] to her

termination[?]” (Id.). The Court is not convinced. Plaintiff shared her experience with students

beginning on Friday, January 19, 2018, and Principal Schob raised her concerns with

Superintendent Hampton the following Monday. Plaintiff was placed on paid administrative leave

the next day. Given this timeline, Plaintiff has failed to show even a “trivial inconsistency,”

Jennings, 630 F. App’x at 554, let alone evidence “which tend[s] to prove that an illegal motivation

was more likely than that offered by the defendant,” Brown v. Kelsey-Hayes Co., 814 F. App’x 72,

82 (6th Cir. 2020) (emphasis in original) (quotation marks and citation omitted). She has failed to

prove pretext as a result.

iii. Discussing Employment or Termination Proceedings

Plaintiff does not argue Defendants’ third reason was pretextual—notably, she does not

address it at all. And the evidence establishes that Plaintiff frequently communicated with students

while on administrative leave in violation of the District’s orders otherwise. Accordingly, there is

no dispute of material fact with regard to this explanation.

iv. Incapable of Performing Essential Duties of Teaching

Plaintiff’s final argument is not based on pretext. It is broader. She asserts Defendants

cannot terminate her for being unfit to teach because they never attempted to accommodate her

disability. (Doc. 54 at 34–36). In other words, she believes Defendants’ conduct constituted per

se discrimination. (See id.). Unfortunately for Plaintiff, and as explained below in Section B, the

Sixth Circuit disagrees.

* * *

In sum, Plaintiff has failed to “cast substantial doubt” on any of Defendants’ reasons for

terminating her. Nathan, 984 F. Supp. 2d at 801–02. Defendants are, therefore, entitled to

25

summary judgment on her disability discrimination claims (Counts One and Two).

B. Failure to Accommodate

A failure to accommodate claim is distinct from a disability discrimination claim, in part,

because it requires direct evidence of discrimination. Belasco, 634 F. App’x at 514 (citing Kleiber

v. Honda of Am. Mfg., 485 F.3d 862, 868 (6th Cir. 2007); Shaver v. Wolske & Blue, 742 N.E.2d

164, 171–72 (Ohio Ct. App. 2000)). As part of her prima facie case, Plaintiff must show that she

requested an objectively reasonable accommodation and that Defendants refused to make it.

Johnson v. Cleveland City Sch. Dist., No. 1:07 CV 1610, 2010 WL 522804, at *4 (N.D. Ohio Feb.

5, 2010), aff’d, 443 F. App’x 974 (6th Cir. 2011) (citing 29 C.F.R. § 1630.9(d)).

Defendants argue that Plaintiff’s claim fails at the outset because she never requested an

accommodation. (Doc. 34 at 23–25). Plaintiff responds with alternative arguments. First, she

says she was not required to request an accommodation because her disability was obvious to

Defendants. (Doc. 54 at 23–25). But even if she was required to request an accommodation, she

“raised the issue of Marietta Schools not accommodating her” at the April 5, 2018, Board meeting.

(Id. at 26).

For Plaintiff to succeed on either theory, she “must present evidence to show that some

type of accommodation was possible.” Moloney v. Home Depot U.S.A., Inc., No. 11-10924, 2012

WL 1957627, at *15 (E.D. Mich. May 31, 2012); see also Deister, 91 F. Supp. 3d at 928 (collecting

cases) (“[T]he Sixth Circuit has indicated that an employer is not liable for failing to engage in the

interactive process unless the plaintiff can show that a reasonable accommodation was possible.”).

Yet Plaintiff never proposed a reasonable accommodation to the District, and she does not propose

one now. So there is no evidence that Defendants could have accommodated her. She cannot

succeed on this claim as a result. See Deister, 2015 WL 1005408, at *21 (“Deister has not met his

burden to propose an objectively reasonable accommodation and show that it was possible.”).

Briefly, Plaintiff’s failure to accommodate claim suffers from another fatal flaw. Even if

26

Plaintiff requested a reasonable accommodation at the April 5, 2018, Board meeting and produced

evidence that the accommodation was possible, her request came too late. As explained,

Defendants were permitted to terminate Plaintiff for conduct caused or exacerbated by her

disability. See Yarberry, 625 F. App’x at 742. In such a situation, “the ADA [does] not require

further discussion about the employee’s disability or request for reasonable accommodation.” Id.

(quotation marks and citation omitted).

Yarberry, again, provides a good example. After Hhgregg terminated him, the plaintiff

was involuntarily committed to a psychiatric unit. Id. He subsequently requested time off due to

his hospitalization. Id. But, as is the case here, his request was untimely. “Had Yarberry not

already engaged in misconduct meriting termination, it is possible that his requests for time off

due to his hospitalization might have been timely and Hhgregg would have been obliged to try to

accommodate him.” Id. But “because Yarberry had already committed the misconduct that

Hhgregg cited as the reason for his termination, Hhgregg was not obligated to rescind Yarberry’s

termination or engage in further discussion of his requests for accommodation.” Id.

The same is true here. The timing of Plaintiff’s request “is crucial.” Id. By the time she

raised the issue of an accommodation at the April 5 Board meeting, Plaintiff “had already

committed the misconduct that [Defendants] cited as the reason for [her] termination[.]” Id.

Defendants, therefore, were “not obligated” to forego her termination proceedings “or engage in

further discussion of [her] requests for accommodation.” Id. For this additional reason,

Defendants are entitled to summary judgment on Plaintiff’s failure to accommodate claim.

C. Retaliation and Religious Discrimination (Counts Three and Four)

In her remaining two claims, Plaintiff alleges that Defendants violated Ohio law. Because

Plaintiff’s federal claims have been dismissed, “it remains within [the Court’s] discretion whether

to continue to exercise supplemental jurisdiction over remaining state law claims that arise from

the same nucleus of operative facts[.]” Simuel v. City of Dayton, No. 3:09CV180, 2011 WL

27

4102529, at *8 (S.D. Ohio Sept. 14, 2011) (citing Aschinger v. Columbus Showcase Co., 934 F.2d

1402, 1412 (6th Cir. 1991)). In exercising this discretion, “the Court must balance concerns of

federalism and comity, on the one hand, generally weighing against unnecessary federal court

decisions addressing state law, and the common sense policies of judicial economy and fairness

on the other.” Simuel, 2011 WL 4102529, at * 8 (citing Gamel v. City of Cincinnati, 625 F.3d 949,

951 (6th Cir. 2010)).

Ohio religious discrimination and retaliation claims have the same evidentiary standards

and general analysis as its federal counterparts. See Braun v. Ultimate Jetcharters, LLC, 828 F.3d

501, 510 (6th Cir. 2016) (collecting cases); Gibbons v. Bair Found., Inc., No. 104CV2018, 2007

WL 582314, at *5 (N.D. Ohio Feb. 20, 2007). As such, the interests of judicial economy and

fairness weigh in favor of exercising supplemental jurisdiction here.

Plaintiff alleges that Defendants discriminated against her on the basis of religion. (Doc.

54 at 37). She also alleges that Defendants fired her in retaliation for her statements at the April 5

Board meeting. (Doc. 54 at 40–41). As Plaintiff notes, Defendants do not challenge Plaintiff’s

prima facie case for either claim. (See generally Doc. 34). Rather, they move straight to their

burden to produce legitimate, nondiscriminatory or nonretaliatory reasons for terminating her.

(See, e.g., Doc. 34 at 19 (“Plaintiff was not discriminated against nor retaliated against because of

a disability . . . Plaintiff’s termination was based upon her no longer being capable of performing

the essential functions of her position . . .”)).

Because the Court has concluded that Defendants have satisfied their burden, Plaintiff now

shoulders the burden to prove pretext. See Braun, 828 F.3d at 511. She relies on the same

arguments and evidence of pretext as she does for her disability discrimination claims. (Doc. 54

at 41). But the Court has already rejected those arguments and found that Plaintiff has failed to

prove pretext by a preponderance of the evidence. Because she relies on no other evidence of

pretext, Plaintiff’s religious discrimination and retaliation claims fail for the same reasons as her

28

disability discrimination claims. Defendants are entitled to summary judgment on these claims as

a result.

Finally, Defendants seek to file a sur-reply in support of their summary judgment motion.

(Doc. 67). Specifically, they ask to supplement their motion “with the newly obtained deposition

testimony” from supervised psychologist Amber Davis. (Id.). But Ms. Davis’s deposition

transcripts are already a part of the record, and the Court finds that a sur-reply would be superfluous

as a result. Defendants’ Motion (Doc. 67) is DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary Judgment (Doc. 34) is

GRANTED. Defendants’ Motion for Leave to File Supplemental Reply (Doc. 67) is DENIED.

IT IS SO ORDERED.

Date: November 18, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

29