Black v. Ohio Industrial Commission

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Rachael Black, Case No: 2:21-cv-2987

Plaintiff, Judge Graham

v. Magistrate Judge Jolson

State of Ohio Industrial Commission, et al.,

Defendants.

Opinion and Order

Plaintiff Rachael Black brings this employment discrimination suit relating to her removal

from the position of Chief Legal Counsel for the State of Ohio Industrial Commission. Ms. Black,

who is Puerto Rican, asserts claims under Title VII of the Civil Rights Act of 1964 for gender

discrimination and national origin discrimination. She also asserts a claim under the Equal Pay Act.

Defendants are the Ohio Industrial Commission and its Chairperson James Hughes and

Executive Director Timothy Adams. This matter is before the Court on defendants’ motion for

summary judgment. Defendants argue that plaintiff’s discrimination claims fail because Hughes had

a legitimate, non-discriminatory reason to revoke Black’s appointment as Chief Legal Counsel. They

argue that plaintiff’s Equal Pay Act claim fails because she received a higher rate of pay than the man

who succeeded her.

For the reasons stated below, the Court grants defendant’s motion for summary judgment.

I. Background

A. Facts

The Ohio Industrial Commission was created to provide a forum for the adjudication and

resolution of disputed workers’ compensation claims. See O.R.C. § 4121.02(A). The Commission is

comprised of three members appointed by the Governor, with the consent of the Ohio Senate. See

id. One member serves as the Chairperson, at the pleasure of the Governor, and is the head of the

Commission. See O.R.C. § 4121.03(A). The Chairperson has the authority to hire hearing officers

and staff and to appoint an Executive Director, who manages the Commission’s day-to-day

operations. See O.R.C. § 4121.03(B), (C). The daily operations include supervising the hearing

officers who resolve claims and determine eligibility for disability benefits.

Black began her employment with the Commission in 1993 and served as a hearing officer

for many years. In October 2013, she was appointed to Chief Legal Counsel by then-Chairperson

Thomas Bainbridge. See Doc. 53-8 at PAGEID 913. Her initial rate of pay as Chief Legal Counsel

was $48.12 per hour. See Doc. 53-7 at PAGEID 907.

The position of Chief Legal Counsel is in Ohio’s unclassified civil service. See Ohio Rev.

Code § 124.11(A)(9); Doc. 53-8 at PAGEID 915; Colasurd Aff., ¶ 5. It is undisputed that the

position was at will and at the pleasure of the Chairperson. See Black Dep. at 124; Hughes Aff., ¶ 6.

Black’s job duties included ensuring the Commission’s compliance with applicable law, making

recommendations to the Chairperson, assigning hearing officers to matters, and acting as a liaison to

the Bureau of Workers’ Compensation. See Doc. 53-8 at PAGEID 914–915; Feb. 15, 2023 Black

Aff., ¶ 5; Black Dep. at 236–241.

Plaintiff alleges that during the first three years of her tenure as Chief Legal Counsel, certain

co-workers referred to her Puerto Rican national origin in a demeaning manner. Namely, defendant

Adams and two directors, Jacob Bell and Michael Tanner, referred to her as “the Rican.” They did

so outside of her presence. Black became aware of the matter when other employees told her about

it. See Black Dep. at 98, 100, 101. Black testified that Tanner also said, “You’re going Rican,”

directly to her during a disagreement. Id. at 82. Black believes that Tanner used the phrase to mean

that she was getting “fired up” or upset. Id. Black further testified that she was told that Adams,

outside of her presence, used the phrase “going Rican” in reference to her. Id. at 90, 96. Adams

denies that he made any such comment about Black. See Adams Aff., ¶ 3.

Black’s tenure as Chief Legal Counsel came to an end in late July 2019. See Doc. 53-5 at

PAGEID 902. This occurred shortly after defendant Hughes became the Commission’s new

Chairperson.

Hughes had served as a legislator in both the Ohio House of Representatives and Ohio

Senate. See Hughes Aff., ¶¶ 2, 4. When Mike DeWine became Governor in 2019, Hughes decided

that he would pursue an appointment as head of an executive agency. See Hughes Dep. at 11. He

first interviewed for a position with the Department of Insurance and then for the Industrial

Commission. See id. at 11–12. Hughes had pre-determined that if he received an executive

appointment he would hire James Burkart as his chief legal counsel. See id. Hughes had received

advice from a mentor that, if he were to receive such an appointment, he should hire legal counsel

whom he knew and trusted. See id. at 12. Hughes had known Burkart for about 20 years and was

friends with him. See id. at 10. Hughes believed that Burkart had the right background experience,

and another attorney whom Hughes knew had “highly recommended” Burkart for a chief legal

counsel position. Id. at 11. Hughes testified in his deposition, “So before I even came into the

Industrial Commission, I knew I was going to bring him [Burkart] in, wherever I went with the

State, as my legal counsel.” Id. at 12. Hughes had never met Black prior to being appointed as

Chairperson. See id. at 11.

Governor DeWine appointed Hughes as Chairman of the Commission effective July 1,

2019. See Hughes Aff., ¶ 1. Hughes met with Black on July 11, 2019 to review “current actions

pending before the courts and administrative agencies.” March 7, 2023 Black Aff., ¶ 8. According

to Black, Hughes became sidetracked on the topic of former director Jacob Bell, who had been

terminated for intimidating female employees. Hughes expressed his opinion that the internal

investigation conducted of Bell was “unfair” and that he wanted to give Bell his job back. Id.

Over the following two weeks, Black had a couple of interactions with Hughes. Black states

that on one occasion, Hughes disagreed with a recommendation she had made and called her

“incompetent.” Id., ¶ 9.

On another occasion, around July 17, Hughes met with Black to discuss “how he could

develop a working relationship with the two other Commissioners.” Id., ¶ 10. Hughes reported to

Black that he had been told by Adams that “their demeanors were ‘difficult.” Id. When Black said

that she worked well with the other two Commissioners, both of whom were women, Hughes

responded that it was because Black was a female. Id.

On July 25, Hughes met with Black and informed her that he was revoking her

appointment as Chief Legal Counsel. Id., ¶ 11; Hughes Aff., ¶ 6. According to Hughes, he hired

Burkart because he trusted him and because he was qualified for the job. Id., ¶ 7. The decision had

“nothing to do with [Black’s] sex/gender or national origin.” Id., ¶ 6.

When informed of Hughes’s decision, Black stated that she wanted to exercise her “fall-back

rights” to return to her position as a hearing officer. See Black Dep. at 112; Hughes Dep. at 22.

Hughes offered that he would reach out to an individual in the Governor’s office to help her if she

wanted to pursue a legal counsel position with another agency. See Black Dep. at 112–113; Hughes

Dep. at 22. Black contends that in the July 25 meeting Hughes opposed her assertion of fall-back

rights on the grounds that she “did not have such rights.” March 7, 2023 Black Aff., ¶ 11.

Hughes allowed Black to take Friday, July 26 off work to consider her options. See Black

Dep. at 115; Hughes Dep. at 22. On July 26, Hughes issued a letter to Black memorializing that her

employment as Chief Legal Counsel was terminated effective July 29 and that she had a right to fall

back to previously-held position in the classified civil service. See Doc. 53-5.

On Monday, July 29, Black reported to the Commission’s human resources department to

notify them that she was exercising her fall-back rights. See Black Dep. at 115. Black signed a letter

giving notice that she had exercised her right to return to a hearing officer position. See Doc. 53-5.

At the time of her termination, Black earned a salary of $58.82 per hour as Chief Legal

Counsel. See Doc. 53-7 at PAGEID 906. When Burkart began at that position on July 30, 2019, he

earned $56.00 per hour. See Colasurd Aff., ¶ 7. Burkart’s pay increased to $57.12 per hour on

December 22, 2019 and to $58.83 per hour on April 11, 2021. See id., ¶¶ 8–9.

The Human Resources Director, Doreena Colasurd, met with Black on July 29 to assign her

to a workstation as a hearing officer on the seventh floor of the William Green Building in

Columbus. See March 7, 2023 Black Aff., ¶ 16; Colasurd Aff., ¶ 4. According to Colasurd, she

allowed Black to choose among available cubicles, but Black says that Colasurd gave her no choice

and took her to a cubicle “located across from the break room and men’s restroom.” March 7, 2023

Black Aff., ¶ 16. Black believes – based on a statement that Colasurd or an office manager made to

her – that Hughes and Adams decided which cubicle she would have. See Black Dep. at 153; March

7, 2023 Black Aff., ¶¶ 15, 17. Black contends that they put her near the break room and restroom,

where there was noise and food smells, in an effort to retaliate against her.1 See id., ¶ 15.

Black further states that when she returned to her position as hearing officer, her phone

number was changed and her access to her previous work files and emails was restricted. Id.; Black

Dep. at 131, 142. Black believes that she was treated “as if I was a new employee.” Id. at 142.

B. Procedural History

Plaintiff filed a charge with the Equal Employment Opportunity Commission on July 21,

2020 and received a Right to Sue letter on March 2, 2021. Plaintiff filed her complaint in this case

on June 1, 2021. She has twice been granted leave to amend her complaint.

1 Black does not explain in her affidavit or other filings what she means by “retaliation.” In

particular, she has not identified the protected activity which caused Hughes and Adams to retaliate

against her. In one of her briefs, Black says that she experienced retaliation for being the first female

and first Hispanic Chief Legal Counsel. See Doc. 57 at PAGEID 1180. In that sense, she appears

to use “retaliation” as a way of saying that she was discriminated against on the basis of her gender

and national origin.

In any event, the Second Amended Complaint does not assert a claim for retaliation, nor did Black’s

charge with the United States Equal Employment Opportunity Commission. See Doc. 37-2 at

PAGEID 239 (EEOC charge form, on which plaintiff did not check the box for a retaliation claim).

Counts I and II of the Second Amended Complaint assert claims of national origin

discrimination under Title VII, 42 U.S.C. § 2000e-2(a), and state law. Counts III and IV assert

claims of gender discrimination under Title VII and state law. The complaint alleges that defendants

discriminated against plaintiff by revoking her position as Chief Legal Counsel, by initially refusing

to honor her fall-back rights, and by treating her less favorably than non-Hispanic, male employees

in the terms and conditions of employment.

Count V asserts a violation of the Equal Pay Act, 29 U.S.C § 206(d)(1). The complaint

alleges that plaintiff was paid less than her male counterparts.

In an earlier Opinion and Order, the Court granted in part and denied in part defendants’

motion to partially dismiss the complaint. See Doc. 43. Defendants’ motion addressed two issues.

The first concerned a potential claim for hostile work environment under Title VII. The complaint

did not assert a hostile work environment claim, but it contained allegations about Black being the

subject of comments referring to her as “the Rican” and as “going Rican.” Defendants argued that

to the extent the complaint could be construed as alleging a hostile work environment claim, such a

claim must be dismissed because plaintiff failed to include those allegations in her EEOC charge and

had not exhausted her administrative remedies. Plaintiff did not oppose the motion, and the Court

agreed that her EEOC charge did not allege any facts from which a hostile work environment claim

could be reasonably expected to arise. The EEOC charge focused solely on the revocation of

Black’s position as Chief Legal Counsel and the allegedly unfavorable treatment she received when

she returned to the hearing officer position.

Second, defendants argued that plaintiff’s Equal Pay Act claim was time-barred, at least in

part. A three-year statute of limitations applies to willful violations of the Act. See U.S.C. § 255(a).

The Court held that the complaint alleged a willful violation and that plaintiff could pursue her claim

only for allegedly unequal paychecks received from June 1, 2018 through the revocation of her

position on July 29, 2019. Thus, any claim based on alleged pay disparities relative to Black’s

predecessors was barred, as her rate of pay on June 1, 2018 exceeded that of her predecessors.

With respect to alleged pay disparities relative to Black’s successor, Jim Burkart, defendants

argued that Black’s claim failed because her final rate of pay exceeded his initial rate of pay. The

Court found that the claim should survive the motion to dismiss because defendants had relied on

payroll records outside of the pleadings and because plaintiff had alleged that Burkart, soon after

taking the job, quickly advanced in pay in a manner she had not.

The parties have now conducted discovery and defendants have moved for summary

judgment. Black has filed a cross-motion for summary judgment on her Equal Pay Act claim.

II. Standard of Review

Under Federal Rule of Civil Procedure 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 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 Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986); 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 (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).

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, in reviewing a motion for summary judgment, a 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. Discussion

A. Title VII Discrimination Claims2

Title VII provides that an employer may not “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. § 2000e-2(a)(1).

Black has not offered any direct evidence of discrimination. Therefore, her claims are

examined under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248 (1981). A plaintiff

must first establish a prima facie case of disparate treatment. Burdine, 450 U.S. at 253. She does so by

demonstrating that she: (1) is a member of a protected class, (2) was qualified for her job, (3)

suffered an adverse employment action, and (4) was replaced by a person outside the protected class

or treated differently than similarly situated non-protected employees. Levine v. DeJoy, 64 F.4th 789,

797 (6th Cir. 2023).

If plaintiff satisfies her prima facie case, the burden shifts to the defendant to articulate a

legitimate, nondiscriminatory reason for the adverse employment action. Burdine, 450 U.S. at 253.

Plaintiff will then an opportunity to prove that the legitimate reasons offered by the defendant were

a pretext for discrimination. Id.

Black’s claims for gender and national origin discrimination can be separated into three

distinct theories based on the following alleged adverse actions: the revocation of her job as Chief

Legal Counsel; Hughes’s initial refusal to honor her fall-back rights; and the unfavorable treatment

she received when she returned to the hearing officer position. The Court will analyze these

theories in turn below.

1. Revocation of Black as Chief Legal Counsel

Defendant concedes that Black has demonstrated a prima facie case of discrimination as it

relates to the revocation of her job as Chief Legal Counsel. Black is a member of a protected class

(both as a female and a Puerto Rican) and was qualified for the job, terminated from the position,

and replaced by a white male.

2 In response to defendants’ motion to dismiss, Black concedes that Hughes and Adams do not

meet Title VII’s definition of an “employer,” and she has clarified that her Title VII claims are

against the Commission. Doc. 57 at PAGEID 1190. See Wathen v. Gen. Elec. Co., 115 F.3d 400, 405

(6th Cir. 1997).

The burden shifts to defendant to establish a legitimate, nondiscriminatory reason for why

Hughes revoked her position. Defendant has met its burden. Following a change in Governor,

Hughes pursued a political appointment to head an executive agency. Hughes had decided, based

on advice he had been given, that he would make Burkart his chief legal counsel if he received such

an appointment. See Hughes Dep. at 11–12. He did not know Black, but he had known Burkart for

20 years and trusted him. Id. at 10–11. Once the Governor appointed him as Chairperson of the

Industrial Commission, Hughes followed through on his plan. The Court finds that defendant has

made a showing that Hughes’s revocation of Black was not based on her gender or national origin.

The burden now shifts to plaintiff to show that “the legitimate reasons offered by the

defendant were not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253.

Pretext can be established directly by a showing that “a discriminatory reason more likely motivated

the employer” or indirectly by a showing that “the employer’s proffered explanation is unworthy of

credence.” Id. at 256. “A plaintiff will usually demonstrate pretext by showing that the employer’s

stated reason for the adverse employment action either (1) has no basis in fact, (2) was not the actual

reason, or (3) is insufficient to explain the employer’s action.” Levine, 64 F.4th at 798 (internal

quotation marks omitted).

Black argues that Hughes had an “inherent bias against women” which actually motivated

his decision.3 Doc. 57 at PAGEID 1193. The evidence which potentially supports Black’s assertion

is the following: Hughes’s statement about the investigation of former director Jacob Bell being

“unfair”; Hughes’s discussion with Black about the potential difficulty of working with the other

two Commissioners; and Hughes’s decision not to revoke the employment of two, executive-level

male employees.

With respect to the first matter, Black stated in her deposition that she met with Hughes

soon after he became Chairperson. See March 7, 2023 Black Aff., ¶ 8. Hughes mentioned Bell, who

had been fired for intimidating female employees. According to Black, Hughes said that the

investigation of Bell was “unfair” and that he wanted to give Bell his job back. Id.

Without more, this evidence does not support an inference that Hughes had an anti-female

bias. Black did not, in either her affidavit or deposition, describe the basis for why Hughes believed

the investigation was unfair. And despite having an opportunity to depose Hughes, plaintiff did not

3 In attempting to show pretext, plaintiff focuses on gender bias as the motivating factor. Her only

mention of national origin bias is defendant Adam’s allegedly calling her “the Rican.” Doc. 57 at

PAGEID 1193. However, Adams did not participate in the decision to revoke Black’s position and

his alleged comment predated Hughes’s decision by at least three years.

examine him about this matter. Hughes could have had any number of reasons, including

procedural ones, for calling the investigation unfair. With the burden on plaintiff to demonstrate

pretext, Black must do more than speculate in her legal brief about what caused Hughes to view the

investigation as unfair. See Sutherland v. Mich. Dept. of Treasury, 344 F.3d 603, 623 (6th Cir. 2003)

(affirming summary judgment where plaintiff offered only “unsupported speculation” to show

pretext).

Turning to the second matter, Black claims in her brief that Hughes said that “women are

‘difficult.’” Doc. 57 at PAGEID 1193. This is a mischaracterization of her own sworn affidavit.

According to the affidavit, Hughes came to Black seeking her advice about “how he could develop a

working relationship with the two other Commissioners.” March 7, 2023 Black Aff., ¶ 10. Hughes

said that he had been told that “their demeanors were ‘difficult.” Id. When Black responded that

she worked well with the other two Commissioners, both of whom were women, Hughes responded

that it was because Black was a woman. Id.

Again, the evidence does not support an inference that Hughes had an anti-female bias.

Hughes did not say that “women are difficult.” According to Black’s affidavit, he wanted to

establish a good working relationship with his co-Commissioners. Hughes, who was new to the

agency, did not say that the other Commissioners were difficult to work with – only that he had

heard someone else say that they were. Hughes apparently reasoned that Black worked well with

them because she was a woman. Here too, without more it would be speculative to infer from this

statement alone that Hughes held an animus against women. Even if he thought that it might be

more challenging for him, as a man, to cooperate with the other Commissioners, he did not say that

he did not want to work with them because they were women. Rather, according to Black’s own

affidavit, Hughes expressed a desire to “develop a working relationship” with them; there is no

evidence that he had a desire to avoid, ignore, exclude, or marginalize them.

As to the third matter, Black emphasizes that Hughes revoked her position but chose not to

do the same for two men who were employed at the executive level. Black identifies the two men as

defendant Adams and Thomas Connor, director of adjudicatory services. See March 7, 2023 Black

Aff., ¶ 14; Black Dep. at 25, 172–73. However, plaintiff has failed to offer any evidence to provide

context to the situation. That is, she has not shown that Adams and Connor were similarly situated

to her, such that Hughes’s purported reason for installing his own Chief Legal Counsel would have

required him to have also replaced Adams and Connor.

The only evidence on this issue cuts against plaintiff. In his deposition, Hughes explained

that his reason for bringing in Burkart was specific to the Chief Legal Counsel position. Hughes,

himself an attorney, stated that he had once worked for a county judge. See Hughes Dep. at 12. The

judge advised him that if he were ever in the position in which Hughes later found himself, that in

selecting “[my] own legal counsel, make sure you get the person you knew.” Id. Hughes added,

“And I took that advice. So when I got this [appointment as Chairperson], this is what I did.” Id.

The Court thus finds that plaintiff has not submitted evidence from which a jury could find

that Hughes had an anti-female bias. As importantly, plaintiff also has not shown that the alleged

anti-female bias actually motivated Hughes to revoke Black’s position. The evidence is undisputed

that Hughes had pre-determined to hire Burkart as his Chief Legal Counsel. Before seeking the

appointment with the Industrial Commission, Hughes had sought an appointment with the

Department of Insurance and had interviewed Burkart in March 2019 and talked with him about

being his legal counsel. See Hughes Dep. at 11–12, 15. Hughes made a decision at that earlier time

to hire Burkart if he received an appointment: “So before I even came into the Industrial

Commission, I knew I was going to bring him in, or wherever I went with the State, as my legal

counsel.” Id. at 12. Hughes had never met Black, and there is no evidence that he knew of her or

her gender. See id. at 11; Hughes Aff., ¶ 6. On the record before the Court, Hughes had no reason

for replacing Black other than following through with his preset plan to hire someone he knew and

trusted as his legal counsel, regardless of whether the person he would be removing was a man or

woman. See Hughes Dep. at 21; Hughes Aff., ¶ 8.

In sum, the Court finds that defendant has demonstrated that Hughes had a legitimate,

nondiscriminatory reason for revoking Black as Chief Legal Counsel and that plaintiff has failed to

put forth evidence from which a jury could reasonably find that Hughes’s reason was pretextual.

2. Initial Refusal to Honor Black’s Fall-Back Rights

Hughes informed Black on July 25, 2019 of his decision to revoke her appointment as Chief

Legal Counsel. Black immediately asserted her right to return to a hearing officer position. Black

states that Hughes initially refused to honor her rights and claimed that she “did not have such

rights.” March 7, 2023 Black Aff., ¶ 11.

The Court finds that plaintiff has failed to show that she suffered an adverse employment

action, which she must do in order to establish a prima facie case. An adverse employment action is

one accompanied by a “materially adverse change in the terms or conditions of . . . employment.”

Kocsis v. Multi–Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996) (emphasis added).

Hughes’s initial refusal to honor Black’s rights did not cause a change in the terms or

conditions of Black’s employment. On the very next day, July 26, Hughes signed a letter to Black

acknowledging the existence of her fall-back rights. See Doc. 53-5. The letter stated, “Pursuant to

Ohio Revised Code Section 124.11, because you previously held a position in the classified service,

you retain the right to resume the position and status held in the classified service immediately prior

to your unclassified appointment.” Id. The letter identified the fall-back position as that of a

District Hearing Officer and instructed Black to indicate, with her signature, if she wished to

exercise her fall-back rights. See id.

On the next business day, Monday, July 29, Black signed the letter and exercised her right to

return to a hearing officer position. See id.; Black Dep. at 177–78. She did not miss any pay or

experience a lapse in service or benefits as a result of Hughes’s initial resistance to her assertion of

fall-back rights. See Black Dep. at 115. Black received her salary as Chief Legal Counsel up to July

29, when she began receiving her salary as a hearing officer. See id.; Doc. 53-7 at PAGEID 906.

3. Unfavorable Treatment

Finally, plaintiff alleges that she was subjected to discriminatory treatment once she returned

to the hearing officer position. She states that Hughes and Adams assigned her to an undesirable

workstation situated closely to the sounds and smells of the break room and a restroom. See March

7, 2023 Black Aff., ¶ 15. She further claims that Hughes and Adams had her phone number

changed and restricted her access to her previous work files and emails. Id.; Black Dep. at 131, 142.

The evidence largely supports Black’s version of what occurred when she returned to being a

hearing officer. Her belongings were moved from one floor of the William Green Building to the

seventh floor, where district hearing officers and their support staff work. See March 7, 2023 Black

Aff., ¶ 16; Hillmer Dep. at 12–13. The workstations of hearing officers were in the nature of

cubicles, which were clustered in pairs or groups of four. See Hillmer Dep. at 13; Doc. 51-1. Black

was assigned to a cubicle that was set up with a computer and telephone. See Hillmer Dep. at 65;

March 7, 2023 Black Aff., ¶ 16. Black was given a new phone number, her email was reset (such

that her inbox was empty), and she did not have access to her prior computer work files. See Black

Dep. at 130–31, 142. Black described it as being like “a new employee.” Id. at 142.

The Commission’s office manager, Felicity Hillmer, agreed in her deposition that Black’s

cubicle was not in the most desirable location. See Hillmer Dep. at 18. The cubicles for hearing

officers all had the same size and layout (a desk surrounded by four walls, with one side having an

opening as an entryway). See id. at 13, 14, 17, 18. So the desirability of a cubicle could be gauged by

its location, particularly if in a quieter area or near a window. See id. at 18. Black’s cubicle had

neither of those advantages. It was one of many which were interior-oriented, meaning that its

entryway did not face a window and that it was relatively close to the common areas of the seventh

floor. See Doc. 51-1 (diagram of the seventh floor, with Black’s cubicle identified as #7); Hillmer

Dep. at 31, 36, 44. The common areas included the elevators, stairs, two restrooms, break

room/kitchenette, and freight elevators. See Doc. 51-1

Seniority governed who received the most desirable cubicles. See Hillmer Dep. at 24. The

cubicle to which Black was assigned went to new hearing officers.4 See id. at 19–20, 37. The entry to

her cubicle faced an interior wall. See id. at 31–32. Around the corner, less than 10 yards away was

the break room, which Hillmer described as a kitchenette. See id. at 31, 34–35, 40–42; Doc. 51-1. A

restroom was a few more yards past the break room. See Hillmer Dep. at 41–42; Doc. 51-1. The

break room was no larger than the size of one of the cubicles. See Doc. 51-1. According to Hillmer,

employees would “congregate and chitchat” there. Hillmer Dep. at 42. The cubicle walls did not

reach the ceiling, but were open on top. See id. at 46; Black Dep. at 155. This meant that someone

in Black’s cubicle would be able to hear noise and smell food in the morning and at lunch. See

Hillmer Dep. at 42–43; Black Dep. at 154–55.

Defendant argues that the conditions of which Black complains do not constitute an adverse

employment action. An employment action is adverse when it “constitutes 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.” Burlington Industries v.

Ellerth, 524 U.S. 742, 761 (1998). Changes in work conditions can be an adverse action if they are

“evidenced by a less distinguished title, a material loss of benefits, significantly diminished material

responsibilities, or other indices that might be unique to a particular situation.” White v. Burlington N.

& Santa Fe R. Co., 364 F.3d 789, 797 (6th Cir. 2004) (internal quotation marks omitted). A

“materially adverse change in employment conditions must be more disruptive than a mere

inconvenience or an alteration of job responsibilities.” Mitchell v. Vanderbilt Univ., 389 F.3d 177, 182

(6th Cir. 2004) (internal quotation marks omitted). “The Sixth Circuit has consistently held that de

minimis employment actions are not materially adverse and, thus, not actionable.” Bowman v.

4 Black soon moved to a cubicle near a window and away from the break room when a more senior

hearing officer retired in March 2020. See Hillmer Dep. at 49–51. A new hearing officer took

Black’s old cubicle. See id. at 50; Doc. 51-1.

Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000). Similarly, “petty slights and trivial

annoyances” do not count. White, 364 F.3d at 799.

The Court finds that plaintiff has not produced evidence that the conditions at issue were

sufficiently serious to have prevented her from doing her work or to have amounted to diminished

responsibilities as a hearing officer. She admitted that the new workstation, having “already been set

up with my desktop computer and new phone, enable[ed] me to begin working immediately.” March 7,

2023 Black Aff., ¶ 16 (emphasis added). The change of her phone number was at most a personal

inconvenience, as the only impact she identified was that her children had to change their emergency

contact information for her. See Black Dep. at 131.

As to the cleared email inbox, Black testified that she lost access to emails and documents

she thought were worth saving over the years. The emails related to agency policies (regarding

travel, leave, etc.) and communications from Connor, the director of adjudicatory services, about

certain legal issues. See id. at 132, 143–44. But Black admitted that she could simply ask HR to

resend the policies and ask Connor to refresh her memory on the legal issues. See id. at 144–45.

Other emails she had saved related to “personal stuff” which had “no business purpose.” Id. at 143.

With respect to the loss of access to work files, Black testified that she had saved legal

research on various issues over the years. See id. at 131. Black has not established that the loss of

her research prevented her from doing her job as a hearing officer. Rather, she has shown only that

she found it to be convenient if she could refer back to past research when a certain issue happened

to arise again. See id. at 134. Black conceded that this pertained only to “specific issues that we

don’t get a lot – you don’t see frequently.” Id.

Finally, plaintiff has not shown that the location of her cubicle from July 29, 2019 to March

2020 prevented her from doing her job or constituted materially unfavorable treatment. Other

hearings officers had occupied that cubicle before her, as well as after. The noise and smells coming

from the kitchenette were an unwelcome “distraction” experienced by every hearing officer who

occupied the cubicle. Black Dep. at 155. It is clear from the record that Black took great personal

offense at being treated as a new hire after having been at the Commission for more than 25 years.5

However, a “bruised ego is simply not enough to constitute an adverse employment action.”

Mitchell, 389 F.3d at 182 (internal quotation marks omitted).

5 Black has not argued or established that she was legally entitled under the collective bargaining

agreement or agency policy to have been credited with seniority based on her prior service as a

hearing officer.

4. Summary

The Court thus finds that defendant is entitled to summary judgment on all of plaintiff’s

Title VII claims.

B. Equal Pay Act Claim

The Equal Pay Act contains the following prohibition:

No employer having employees subject to any provisions of this section shall

discriminate, within any establishment in which such employees are employed,

between employees on the basis of sex by paying wages to employees in such

establishment at a rate less than the rate at which he pays wages to employees of the

opposite sex in such establishment for equal work on jobs the performance of which

requires equal skill, effort, and responsibility, and which are performed under similar

working conditions, except where such payment is made pursuant to (i) a seniority

system; (ii) a merit system; (iii) a system which measures earnings by quantity or

quality of production; or (iv) a differential based on any other factor other than sex.

29 U.S.C. § 206(d)(1).

To establish a prima facie case of wage discrimination, plaintiff “must show that an employer

pays different wages to employees of opposite sexes for equal work on jobs the performance of

which requires equal skill, effort, and responsibility, and which are performed under similar working

conditions.” Briggs v. Univ. of Cincinnati, 11 F.4th 498, 507–08 (6th Cir. 2021) (internal quotation

marks omitted).

The burden then shifts to defendant to show that the wage differential is justified under one

of the affirmative defenses set forth in § 206(d)(1): a seniority system; a merit system; a system which

measures earnings by quantity or quality of production; or a differential based on any other factor

other than sex. See id. at 508. If defendant establishes an affirmative defense, the burden then shifts

to plaintiff to show that “defendant’s proffered explanation was pretextual.” Id.

The difficulty for Black in establishing her prima facie case is that she earned a higher rate of

pay than Burkart, her successor of the opposite sex. At the time of her revocation, Black earned

$58.82 per hour. See Doc. 53-7 at PAGEID 906. Burkart’s starting pay on July 30, 2019 was nearly

$3 less, at $56.00 per hour. See Doc. 55-2 at PAGEID 981.

The Court denied defendants’ motion to dismiss because Black alleged that the Commission,

though initially paying Burkart less than her, quickly escalated his pay. An employer cannot evade

liability under the Equal Pay Act merely by paying a male successor a “starting” wage below that of a

female predecessor, only to turn around and increase his pay above that of hers. Cf. Broadus v. O.K.

Indus., Inc., 226 F.3d 937, 942 (8th Cir. 2000) (courts may analyze EPA claim by comparing female

employee’s pay to the “non-immediate” pay of a male successor).

However, Black has been unable to support her allegation with evidence at the summary

judgment stage. It is true that Burkart soon received a raise on December 22, 2019, but his new

hourly salary of $57.12 still did not exceed hers. See Doc. 55-2 at PAGEID 981. Indeed, his new

hourly salary did not even match the $57.25 per hour which Black had previously earned before her

hourly pay was raised to $58.82. See Doc. 53-7 at PAGEID 906.

Defendants argue that the analysis should end here – Black’s pay exceeded Burkart’s pay,

whether measured on the day he started or when he received a raise five months later. Defendants

cite one of the regulations promulgated under the Equal Pay Act, which provides:

If a person of one sex succeeds a person of the opposite sex on a job at a higher rate

of pay than the predecessor, and there is no reason for the higher rate other than

difference in gender, a violation as to the predecessor is established and that person

is entitled to recover the difference between his or her pay and the higher rate paid

the successor employee.

29 C.F.R. § 1620.13(b)(4). Defendants contend that Black’s claim necessarily fails because Burkart

succeeded Black at a lower rate of pay.

Plaintiff offers several arguments in response. For one, she argues that it was unfair for

Burkart to have received even $56.00 per hour because he was much less skilled and experienced

than her. Black contends that she has practiced law for 15 years longer than Burkart has. But this

argument – with its focus on the relative skills and experience of Black and Burkart – is of no avail.

A plaintiff establishes a prima facie case “by comparing the jobs held by the female and male

employees, and by showing that those jobs are substantially equal, not by comparing the skills and

qualifications of the individual employees holding those jobs.” Beck-Wilson v. Principi, 441 F.3d 353,

362–63 (6th Cir. 2006) (internal quotation marks omitted).

Next, plaintiff argues that Burkart’s rate of pay was unfair because the job duties of Chief

Legal Counsel shrank once Hughes appointed him to that position. Black had to supervise the

Human Resources Department for a time while she was Chief Legal Counsel, but Hughes removed

oversight of HR from the scope of Burkart’s duties. See March 7, 2023 Black Aff., ¶ 4. This

argument too is of no avail, as it is undisputed that, even if Burkart did less work, he earned lower

wages. Plaintiff has not demonstrated how this situation violates the Equal Pay Act’s “principle of

equal pay for equal work regardless of sex.” Corning Glass Works v. Brennan, 417 U.S. 188, 190 (1974).

Finally, plaintiff contends that the Commission discriminated in its wage practices because it

increased Burkart’s pay at a higher percentage rate than it did hers. Burkart received a second raise

on April 11, 2021, increasing his pay to $58.83 per hour. See Doc. 55-2 at PAGEID 981. A third

raise increased his pay to $62.36 per hour on June 20, 2021, and a fourth increased it to $64.23 on

June 19, 2022. See id. Plaintiff contends that she did not receive the same sort of pay increases. In

her first three years on the job (October 2013 to October 2016), Black’s pay increased from $48.12

to $53.06, which is an overall percentage increase of 10.3%, or annual increase of 3.4%. See Doc.

53-7 at PAGEID 907. In Burkart’s first three years, his hourly pay increased from $56.00 to $64.23,

which is overall increase of 14.7%, or annual increase of 4.9%.

The Court rejects plaintiff’s theory for three reasons. First, plaintiff’s claim for allegedly

unequal wages before June 1, 2018 is time-barred, as the Court held in its order on the motion to

dismiss. See Doc. 43 at PAGEID 259. Plaintiff argues that her pay during her first several years as

Chief Legal Counsel was unequal when compared to Burkart’s pay, but she cannot save the time-

barred claim simply by using her successor as the comparator. If one looks only at the time period

available for recovery, Black received two raises that increased her hourly pay from $54.39 on June

1, 2018 to $58.82 by the time of her revocation on July 29, 2019 – an overall percentage increase of

8.1%. See Doc. 53-7 at PAGEID 906–07. Burkart’s first two pay raises, which took 21 months to

obtain due to a pay freeze during the COVID-19 pandemic, increased his hourly pay from $56.00 to

$58.83 – an increase of just 5.1%. See Colasurd Aff., ¶ 9.

Second, even if plaintiff’s claim was not time-barred, defendants have produced evidence

that factors other than sex account for the difference in the pay increases which Black and Burkart

received during their respective first three years on the job. The difference is explained by a pay

freeze which Governor Kasich imposed on exempt state employees from 2011 until 2015. See

Colasurd Aff., ¶ 6. Black did not receive a raise during this period, until the middle of 2015. See

Doc. 53-7 at PAGEID 907. In contrast, though Burkart’s pay was frozen during the pandemic,

Governor DeWine thereafter authorized state agencies to provide a series of 3% across-the-board

pay raises to all exempt staff, and Burkart received those raises in April and June 2021 and in June

2022. See id., ¶¶ 9–11. In addition, a policy was implemented in June 2021 to correct situations in

which a subordinate earned more than a supervisor. See id., ¶ 10. Such a situation existed under

Burkart, and he received an additional increase of approximately 3%. See id.

The Court finds that defendants have met their burden of establishing that any pay

differential between Black and Burkart resulted from reasons other than sex. See E.E.O.C. v. J.C.

Penney Co., 843 F.2d 249, 253 (6th Cir. 1988) (holding that the affirmative defense of a “factor other

than sex” is established when the employer proves a “legitimate business reason” for the wage

differential). It is now plaintiff’s burden to show that defendants’ explanation is pretextual. See

Briggs, 11 F.4th at 508. However, she has wholly failed to attempt to challenge the legitimacy of

defendants’ explanation.

Third, and perhaps most importantly, the Equal Pay Act is meant to ensure the payment of

equal “wages” for equal work. 29 U.S.C. § 206(d)(1); see also Briggs, 11 F.4th at 507 (stating that the

“Equal Pay Act prohibits employers from discriminating against an employee on the basis of sex by

paying lower wages than are paid to employees of the opposite sex for performing equal work.”).

Plaintiff fails to cite any legal authority for the proposition that she has a viable claim under the Act

against her employer for giving pay raises at unequal percentage rates when she still received a higher

wage than her male successor.6 Black’s wage of $58.82 per hour exceeded Burkart’s wages until

April 11, 2021, when he began earning $58.83 per hour. As explained above, the Commission had

legitimate reasons other than sex when it eventually increased Burkart’s wages above what Black

made. Plaintiff has not demonstrated that those reasons are pretextual.

The Court thus finds that defendants are entitled to summary judgment on plaintiff’s Equal

Pay Act claim.

C. State Law Claims

Plaintiff has asserted claims for gender and national origin discrimination under Ohio

Revised Code § 4112.02. Defendants argue that the state law claims are barred by sovereign

immunity, and the Court agrees.

The Industrial Commission is an arm of the State of Ohio, see O.R.C. § 4121.02, and is

entitled to sovereign immunity under the Eleventh Amendment to the United States Constitution.

See Sossamon v. Texas, 563 U.S. 277, 284 (2011); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996).

A state may choose to waive its immunity in federal court, but a court will not exercise jurisdiction

unless the state’s consent to suit is “‘unequivocally expressed.’” Sossamon, 563 U.S. at 284 (quoting

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984)). Consent may expressed through

legislation or by the state removing an action to federal court or “appearing without objection and

6 Though plaintiff has not, an employee alleging discriminatory practices by an employer in

awarding pay raises could assert a claim under Title VII. See Franks v. Bowman Transp. Co., 424 U.S.

747, 763 (1976) (Title VII “prohibit[s] all practices in whatever form which create inequality in

employment opportunity due to discrimination on the basis of race, religion, sex, or national

origin.”).

defending on the merits.” Nair v. Oakland Cnty. Cmty. Mental Health Auth., 443 F.3d 469, 474 (6th

Cir. 2006) (internal quotation marks omitted).

The State of Ohio has consented to suit in the Ohio Court of Claims. See O.R.C. § 2743.02.

Its waiver of immunity is limited in scope and cannot be broadened. See Sossamon, 563 U.S. at 285

(“[A] waiver of sovereign immunity ‘will be strictly construed, in terms of its scope, in favor of the

sovereign.’”) (quoting Lane v. Peña, 518 U.S. 187, 192 (1996)). Thus, “a State’s consent to suit in its

own courts is not a waiver of its immunity from suit in federal court.” Id. (citing College Savings Bank

v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 675 (1999)).

Plaintiff argues that defendants consented to suit by not raising the sovereign immunity issue

in their motion to dismiss. But the authority she cites does not support her proposition. In the

cited case, Ku v. State of Tennessee, 322 F.3d 431 (6th Cir. 2003) the Sixth Circuit held that a state had

waived sovereign immunity by waiting until after the claims at issue had been resolved on the merits.

Notably, the state failed to raise the immunity defense in its summary judgment motion. See id. at

432 (“. . . Tennessee appeared without objection to the district court’s jurisdiction over this federal

question and defended the suit on the merits, engaging in substantial discovery and filing a motion

for summary judgment. It was only after a final adverse ruling by the district court that Tennessee

raised the Eleventh Amendment immunity defense.”).

Here, defendants’ motion to partially dismiss the complaint did not concern the state law

claims. It concerned only the Title VII and Equal Pay Act claims, for which sovereign immunity is

not a bar. See Fitzpatrick v. Bitzer, 427 U.S. 445, 447–448 (1976) (Title VII abrogates state sovereign

immunity); Kovacevich v. Kent State Univ., 224 F.3d 806, 816 (6th Cir. 2000) (Equal Pay Act abrogates

state sovereign immunity). Defendants thus did not attempt to litigate the state law claims on the

merits at the motion to dismiss stage.

After the Court ruled on the motion to partially dismiss the complaint, defendants filed an

Answer which plainly raised the immunity defense: “Plaintiff’s state law claims against Defendants

are barred by sovereign immunity under the Eleventh Amendment of the United States

Constitution.” Doc. 45, ¶ 94. The Court finds that the Commission and defendants Hughes and

Adams in their official capacities have not consented to suit with respect to the state law claims.

Those claims are therefore barred. See Experimental Holdings, Inc. v. Farris, 503 F.3d 514, 520–21 (6th

Cir. 2007) ([P]endent state law claims against state officials in their official capacity are barred by the

Eleventh Amendment.”).

Plaintiff’s state law claims against Hughes and Adams in their individual capacities are also

barred by sovereign immunity. Ohio law provides for a narrow waiver of immunity by which a

plaintiff must first go to the Court of Claims for a determination that an “employee’s conduct was

manifestly outside the scope of [his] employment or official responsibilities” or that the “employee

acted with malicious purpose, in bad faith, or in a wanton reckless manner.” O.R.C. § 2743.02(F);

see also O.R.C. § 9.86, McCormick v. Miami Univ., 693 F.3d 654, 664–65 (6th Cir. 2012).

Plaintiff has not shown that the Ohio Court of Claims has made the requisite determination.

Thus, the state law claims against Hughes and Adams in their individual capacities are barred by

sovereign immunity. See Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir. 1989) (“Ohio law requires

that, as a condition precedent to asserting a cause of action against a state employee in his individual

capacity, the Court of Claims must first determine that the employee is not entitled to the immunity

provided for in Revised Code section 9.86.”).

IV. Conclusion

Accordingly, defendants’ motion for summary judgment (doc. 55) is GRANTED. Plaintiff’s

motion for summary judgment on her Equal Pay Act claim (doc. 56) is DENIED. The Clerk of

Court shall enter judgment in favor of the defendants.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: September 12, 2023