Carol Smith v. Perkins Board of Education

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0055p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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CAROL ANN SMITH,

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Plaintiff-Appellant,

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No. 12-3187

v.

,

>

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PERKINS BOARD OF EDUCATION; DR. JAMES

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P. GUNNER, individually and in his capacity

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as Superintendent of the Perkins Local

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School District; STEPHEN P. FINN,

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individually and in his capacity as Principal

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of Briar Middle School,

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Defendants-Appellees,

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STEVE SCHUSTER, et al.,

Defendants.

Appeal from the United States District Court

for the Northern District of Ohio at Toledo.

No. 3:11-cv-560—Jack Zouhary, District Judge.

Argued: January 25, 2013

Decided and Filed: February 27, 2013

Before: CLAY, COOK, and ROTH,* Circuit Judges.

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COUNSEL

ARGUED: Edward G. Kramer, KRAMER & ASSOCIATES, LPA, Cleveland, Ohio,

for Appellant. Teresa L. Grigsby, SPENGLER NATHANSON P.L.L., Toledo, Ohio,

for Appellees. ON BRIEF: Edward G. Kramer, KRAMER & ASSOCIATES, LPA,

Cleveland, Ohio, for Appellant. Teresa L. Grigsby, SPENGLER NATHANSON P.L.L.,

Toledo, Ohio, for Appellees.

*

The Honorable Jane R. Roth, Senior Circuit Judge for the United States Court of Appeals for the

Third Circuit, sitting by designation.

1

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 2

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OPINION

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CLAY, Circuit Judge. Plaintiff Carol Ann Smith appeals the district court’s

grant of summary judgment in favor of her former employer, the Perkins Board of

Education, as well as its superintendent and the principal of the middle school at which

she was a teacher. Plaintiff alleges that she was terminated on account of her age in

violation of Ohio Rev. Code § 4112.14, that she was denied reasonable accommodations

and was the victim of retaliation in violation of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12112 et seq., and parallel provisions of state law, and that

Defendants committed the common-law tort of intentional infliction of emotional

distress. A state administrative hearing determined that Plaintiff had been terminated

for “just cause,” and Defendants attempt to use that finding to preclude Plaintiff from

further litigating issues related to her termination. For the reasons that follow, we

AFFIRM the grant of summary judgment with respect to Plaintiff’s age discrimination

claim, but REVERSE with respect to the remaining claims and REMAND for further

proceedings.

BACKGROUND

Plaintiff became a teacher with the Perkins Local School District in 1976. In

1992, she was diagnosed with Type 2 diabetes, a condition that deteriorated until, by

1999, she required insulin injections. Prior to 2008, Plaintiff received positive

performance evaluations and was never subject to disciplinary action. In September

2008, Plaintiff was summoned to a disciplinary conference to address allegations that

she had been sleeping during class. Plaintiff claims that she was not sleeping but rather

exhibiting symptoms of her diabetes. Nevertheless, she was formally reprimanded by

Principal Stephen Finn, who also scheduled a series of performance evaluations.

After she was reprimanded, Plaintiff requested numerous accommodations to

help deal with her disability, including: 1) requiring certain staff to become familiar with

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 3

and trained in recognizing symptoms of diabetes; 2) requesting that staff assist her if she

appears asleep by providing food or a drink, or if necessary, contacting emergency

services; and 3) providing short breaks so that she might inject herself with insulin in

private. In response to Plaintiff’s requests, Superintendent Gunner agreed to allow her

to keep snacks in her classroom and inject herself with insulin in the school nurse’s

office if she first called the office and waited for classroom coverage to arrive.

Superintendent James Gunner also agreed to allow Plaintiff to disseminate information

to students and staff regarding her disability.

After Plaintiff and the school agreed to these accommodations, Plaintiff was

suspended on three separate occasions, once for missing two class periods during which

Plaintiff contends that she was injecting herself with insulin, once for repeated incidents

of sleeping in class, and once for using Playgirl Magazine as an example of yellow

journalism during a class discussion. As a result of these incidents, on April 14, 2010,

the Perkins Board of Education decided to terminate Plaintiff’s teaching contract on the

basis of “good and just cause.”

As a public school teacher, Plaintiff was entitled to request an administrative

hearing before a neutral referee to determine whether her termination was in fact

supported by good and just cause. See Ohio Rev. Code § 3319.16. Plaintiff requested

such a hearing, which was conducted on July 21–22 and August 11–12, 2010. At the

time of the termination hearing, Plaintiff was 71 years old. The referee heard testimony

from Principal Finn as well as several other administrators and students that Plaintiff had

repeatedly fallen asleep during class. Plaintiff maintained that her disability caused her

to appear as if she were sleeping, but that she was actually awake. Plaintiff further

asserted that the school administration purposefully scheduled her to supervise classes

at opposite ends of the building so that she would be tardy.

After hearing the testimony of 27 witnesses and receiving 129 documentary

exhibits into evidence, the referee concluded in a written decision on October 9, 2010,

that Plaintiff’s sleeping during class and her tardiness to other classes constituted “good

and just cause” for her termination. On that basis, the referee recommended that the

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 4

board terminate Plaintiff’s teaching contract. Pursuant to state law, Plaintiff could have

appealed the referee’s decision to the court of common pleas. See Ohio Rev. Code

§ 3319.16.

Instead, on March 17, 2011, Plaintiff filed a complaint in the United States

District Court for the Northern District of Ohio and alleged four counts: 1) age

discrimination in violation of Ohio law; 2) failure to make reasonable accommodations

in violation of the ADA and similar provisions of state law; 3) retaliation for engaging

in protected activity in violation of the ADA and state law; and 4) intentional infliction

of emotional distress.

On September 15, 2011, Defendants filed a motion for summary judgment on

their seventeenth affirmative defense—that Plaintiff’s age discrimination claim is

foreclosed by Ohio Rev. Code § 4112.14(C) and the remaining claims are barred by the

doctrine of collateral estoppel. While that motion was pending, the parties filed briefs

on a discovery dispute arising from Plaintiff’s request to depose a former member of the

board of education on discussions held during executive sessions of the board. On

October 15, 2011, Plaintiff filed a response to Defendants’ motion for summary

judgment, arguing that her claims were not barred either by statute or by the doctrine of

collateral estoppel. Along with her response, Plaintiff filed a detailed affidavit

describing her claims and the circumstances which led to her termination. Three days

later, the district court ordered that the pending discovery dispute be held in abeyance

pending its decision on summary judgment. Plaintiff has represented that the parties had

an understanding that discovery would be put on hold until the district court resolved the

collateral estoppel issues in the pending summary judgment motion.

On January 12, 2012, the district court granted summary judgment to Defendants

on all claims, finding that Count One was not authorized by statute and that Count Three

was barred by collateral estoppel. Having found that collateral estoppel applied, the

district court could have resolved Counts Two and Four in a similar fashion, but instead

determined—without the benefit of briefing or argument from the parties—that Count

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 5

Two failed on the merits and that Count Four had been insufficiently pleaded. Plaintiff

filed a timely Notice of Appeal.

DISCUSSION

We review a district court’s grant of summary judgment de novo. Ciminillo v.

Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute about a

material fact is genuine “if the evidence is such that a reasonable jury could return a

verdict for the non-moving party.” Ford v. Gen. Motors Corp., 305 F.3d 545, 551

(6th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In

reviewing the record, we view the factual evidence in the light most favorable to the

nonmoving party, and draw all reasonable inferences in that party’s favor.” Slusher v.

Carson, 540 F.3d 449, 453 (6th Cir. 2008) (citations omitted). In reviewing Plaintiff’s

claims under Ohio law, this Court applies state law in accordance with the currently

controlling decisions of the Ohio Supreme Court. Metz v. Unizan Bank, 649 F.3d 492,

496 (6th Cir. 2011).

I. Age Discrimination Under Ohio Rev. Code § 4112.14

Plaintiff alleges that Defendants terminated her employment in violation of Ohio

statutes prohibiting age discrimination in employment.1 Ohio Rev. Code § 4112.14

states, in relevant part:

(A) No employer shall . . . discharge without just cause any employee

aged forty or older who is physically able to perform the duties and

otherwise meets the established requirements of the job.

....

(B) Any person aged forty or older who is . . . discharged without just

cause by an employer in violation of division (A) of this section may

institute a civil action against the employer.

1

Plaintiff also pursues relief for age discrimination under Ohio Rev. Code § 4112.99, which

authorizes a cause of action for any violation of the state’s civil rights laws. The limitations imposed by

§ 4112.14(C) apply equally to claims brought under that section. See Meyer v. United Parcel Serv., Inc.,

909 N.E.2d 106, 117 (Ohio 2009) (holding that the cause of action under § 4112.99 “undoubtedly falls

within the ambit of R.C. 4112.14(C)”).

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 6

....

(C) The cause of action described in division (B) of this section . . . shall

not be available in the case of discharges where the employee has

available to the employee the opportunity to arbitrate the discharge or

where a discharge has been arbitrated and has been found to be for just

cause.

Subsection (C) prohibits an employee from bringing a cause of action for age

discrimination if her termination has already been arbitrated and found to be for just

cause. The Ohio Supreme Court has held that an employee need not have participated

in an actual arbitration proceeding, but rather that the “functional equivalent of

arbitration” will suffice to bar an action for age discrimination under § 4112.14(C). See

Meyer v. United Parcel Serv., Inc., 909 N.E.2d 106, 116 (Ohio 2009).

An employee grievance review process is the “functional equivalent of

arbitration” if it is characterized by “indicia of impartiality” and has sufficient procedural

safeguards to protect the rights of the parties involved. See Hopkins v. United Parcel

Serv., Inc., No. C-990392, 2000 WL 279228, at *2 (Ohio Ct. App. Feb. 11, 2000);

see also Meyer, 909 N.E.2d at 116 (finding that an employee grievance procedure was

the equivalent of arbitration for purposes of § 4112.14(C)). The teacher termination

proceeding that Plaintiff requested pursuant to Ohio Rev. Code § 3319.16 ensures

procedural safeguards at least equivalent to those in an arbitration. The statute requires

that a school board provide a teacher with notice of its intent to consider terminating the

teacher’s contract, with “full specification of the grounds for such consideration.” Ohio

Rev. Code § 3319.16. The teacher can then demand a hearing before a neutral referee.

Id. Both the teacher and the school board are statutorily entitled to do all of the

following: be present at the hearing, obtain and be represented by counsel, conduct direct

and cross-examinations of witnesses under oath, have a full stenographic record taken,

and compel the presence of witnesses by means of subpoenas. Id. After the hearing, the

referee must submit his or her report to the school board within ten days, and the board

must vote to accept or reject the referee’s recommendation. Id. If the board votes to

terminate the teacher, it must state the grounds for termination, and the teacher can then

appeal the decision to the court of common pleas. Id.

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 7

The termination procedures under § 3319.16 provide teachers with numerous

procedural safeguards that are at least as robust as those in an arbitration.

See Featherstone v. Columbus Public Sch., 39 F. Supp. 2d 1020, 1022–23 (S.D. Ohio

1999) (finding that a teacher termination proceeding is “judicial in nature” because it

guarantees notice, a hearing, and an opportunity for the introduction of evidence).

Accordingly, we find that the teacher termination proceeding is the “functional

equivalent of arbitration” for purposes of § 4112.14(C). That subsection prohibits the

litigation of age discrimination claims when an arbitrator or its equivalent has

determined that an employee’s termination was supported by just cause.2 Plaintiff’s

termination hearing resulted in just such a determination, and her age discrimination

claim is therefore barred.

II. Collateral Estoppel and the ADA

Unlike Plaintiff’s age-discrimination claim, Plaintiff’s claims under the ADA are

not barred by statute. Instead, Defendants argue that they are barred by the common law

doctrine of collateral estoppel. Defendants assert that because the referee in the teacher

termination proceeding concluded that Plaintiff had been terminated for just cause, she

is now precluded from claiming that she was terminated because of discrimination.

In general, the findings of state administrative agencies are given preclusive

effect by the federal courts. “[W]hen a state agency ‘acting in a judicial capacity . . .

resolves disputed issues of fact properly before it which the parties have had an adequate

opportunity to litigate,’ federal courts must give the agency’s factfinding the same

preclusive effect to which it would be entitled in the State’s courts.” Univ. of Tenn. v.

Elliott, 478 U.S. 788, 799 (1986) (quoting Utah Constr. & Mining Co., 384 U.S. 394,

422 (1966)). The Supreme Court in Elliott determined that, as a matter of federal

2

For the first time in her reply brief, Plaintiff argued that § 4112.14(C) deprives her of a property

interest protected by the Due Process Clause of the Fourteenth Amendment. Even if this argument had

been properly preserved by being raised in her opening brief, see Sanborn v. Parker, 629 F.3d 554, 579

(6th Cir. 2010), it is without merit. Although a cause of action may constitute a property interest, and a

state cannot deprive an individual of property without due process of law, states are free to create causes

of action and define the circumstances in which they are and are not available. See Logan v. Zimmerman

Brush Co., 455 U.S. 422, 433 (1982).

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 8

common law, federal courts must give preclusive effect to state administrative findings

just as they are statutorily required to give preclusive effect to the findings of state courts

under the Full Faith and Credit Act, 28 U.S.C. § 1738. See id. Applying the doctrine

of collateral estoppel to unreviewed state agency findings, the Elliott Court reasoned,

was consistent with § 1738, precedent which required preclusive effect to be given to the

findings of federal administrative agencies, and the purposes of the doctrine. See id. at

796–99.

However, the Elliott Court recognized a significant exception to the general

application of collateral estoppel to state agency decisions. In claims brought under Title

VII of the 1964 Civil Rights Act, the Court held that Congress’ detailed remedial scheme

precluded the use of collateral estoppel. See id. at 795–96. Because the Court’s

formulation of the general rule was based on federal common law, it held that Congress

could displace the doctrine in certain statutory contexts if it intended that collateral

estoppel should not apply. Id. at 795. Such was the case with Title VII. The Court

considered the effect of one of Title VII’s provisions which required the EEOC to give

“substantial weight” to the findings of state or local administrative agencies. Id. (citing

42 U.S.C. § 2000e-5(b)). The Court found that “it would make little sense for Congress

to write such a provision if state agency findings were entitled to preclusive effect in

Title VII actions in federal court.” Id. The Court further recognized Congress’ intent

that Title VII plaintiffs receive de novo trials in federal court, citing a prior decision that

found collateral estoppel principles inapplicable to findings by federal agencies in the

Title VII context. Id. at 795–96 (citing Chandler v. Roudebush, 425 U.S. 840 (1976)).

Based on similar reasoning, the Supreme Court later held collateral estoppel

principles inapplicable to claims brought under the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C. § 621 et seq. See Astoria Fed. Sav. & Loan Ass’n v. Solimino,

501 U.S. 104 (1991). The Court found that although Congress is presumed to act against

the background of common-law adjudicatory principles like collateral estoppel, it can

overcome that presumption by either expressly or impliedly evincing its intent to the

contrary. Id. at 108–10. Just as it had done in Elliott, the Court examined the statute and

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 9

found that various provisions demonstrated Congress’ implicit assumption that

unreviewed state agency determinations would not preclude ADEA plaintiffs from

seeking relief in federal court. See id. at 110–14.

Although the Supreme Court has held that the doctrine of collateral estoppel does

not apply to claims under Title VII and the ADEA,3 it has never decided the status of

collateral estoppel in the context of the ADA. However, using Elliott and Solimino as

a guide, we find that common law collateral estoppel principles do not apply to claims

brought under the ADA because Congress has demonstrated its intent that unreviewed

state administrative findings not have preclusive effect in this statutory context. The

analysis is straightforward because the ADA explicitly incorporates all of the

enforcement powers, remedies, and procedures of Title VII. See 42 U.S.C. § 12117. In

Elliott, the Supreme Court focused on the fact that the EEOC is statutorily required to

give “substantial weight” to the findings of state authorities, strongly implying that the

EEOC and the federal courts are not required to give preclusive effect to those findings.

See Elliott, 478 U.S. at 795. The ADA specifically incorporates this very provision.

See 42 U.S.C. § 12117 (stating that the procedures set forth in 42 U.S.C. § 2000e-5 (Title

VII) are the same enforcement procedures available to a person alleging disability

discrimination under the ADA). Therefore, the logic used by the Supreme Court in the

context of Title VII applies identically to the ADA; Congress would not have required

the EEOC to give “substantial weight” to state agency findings on ADA claims if it

intended for those findings to have preclusive effect.

Every court of appeals to have addressed the issue has likewise determined that

unreviewed state agency findings do not have preclusive effect in later federal court

proceedings under the ADA. See Joseph v. Athanasopoulos, 648 F.3d 58, 64 n.6 (2d Cir.

2011) (finding “no distinction” between the ADA and Title VII that would justify

different preclusion rules); Stone v. Dep’t of Aviation, 290 F. App’x 117, 123 n.3 (10th

Cir. 2008) (finding that Elliott governs both Title VII and ADA claims); Staats v. Cnty.

3

Notably, the doctrine of collateral estoppel is applicable in statutory contexts in which Congress

has not explicitly or implicitly supplanted the common law default rule. For example, collateral estoppel

principles apply to claims brought under 42 U.S.C. § 1983. See Elliott, 478 U.S. at 799.

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 10

of Sawyer, 220 F.3d 511, 514 (7th Cir. 2000) (“Although [the plaintiff’s] claims arise

under the ADA . . . , not Title VII, we think the logic of . . . Elliott applies equally to

other federal anti-discrimination statutes.”); Medeiros v. City of San Jose, 188 F.3d 514,

at *1 (9th Cir. 1999) (table); Thomas v. Contoocook Valley Sch. Dist., 150 F.3d 31, 39

n.5 (1st Cir. 1998).

Also persuasive is the fact that Congress enacted the ADA after the Supreme

Court decided Elliott, and it was against the backdrop of that decision that Congress

wholesale incorporated the very part of Title VII on which the Elliott Court had relied.

See Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 326 (“It is a settled canon

of statutory construction that courts will presume Congress was well aware of the

prevailing law when it enacted a statute.”). Congress should be deemed to have

supplanted the default collateral estoppel rules when it enacted the ADA, just as it did

with the identical enforcement provisions in Title VII. See Elliott, 478 U.S. at 795.

Therefore, the district court erred when it applied the doctrine of collateral estoppel to

Plaintiff’s ADA claims.

III. The Sua Sponte Grant of Summary Judgment on Alternative Grounds

The district court granted Defendants’ motion for summary judgment, but instead

of adopting their arguments as to all of Plaintiff’s claims, it sua sponte resolved two of

Plaintiff’s claims on alternative grounds. We review for an abuse of discretion the

district court’s decision to grant summary judgment sua sponte. Bennett v. City of

Eastpointe, 410 F.3d 810, 816 (6th Cir. 2005) (citing Shelby Cnty. Health Care Corp.

v. S. Council of Indus. Workers Health & Welfare Trust Fund, 203 F.3d 926, 931

(6th Cir. 2000)). If we find that the district court abused its discretion, we will “reverse

and remand to provide the district court the opportunity to review all of the evidence

before making a substantive decision.” Id.

After giving notice and time to respond, a district court may grant summary

judgment on grounds not raised in a party’s motion for summary judgment. See Excel

Energy, Inc. v. Cannelton Sales Co., 246 F. App’x 953, 959 (6th Cir. 2007). In 2010,

the Federal Rules of Civil Procedure were revised to formally recognize that such a

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 11

procedure had developed in practice. See Fed. R. Civ. P. 56, advisory committee’s note.

The new Rule 56(f), titled “Judgment Independent of the [Summary Judgment] Motion,”

states: “After giving notice and a reasonable time to respond, the court may . . . grant the

motion on grounds not raised by a party.” Fed. R. Civ. P. 56(f).

Entry of summary judgment on grounds not raised or argued by the parties is

“discourage[d],” Excel Energy, 246 F. App’x at 959, but the district court may do so “in

certain limited circumstances, ‘so long as the losing party was on notice that [it] had to

come forward with all of [its] evidence,’” Shelby Cnty. Health Care Corp., 203 F.3d at

931 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)). “The key inquiry is

whether the losing party was on notice that he had to muster the necessary facts to

withstand summary judgment, lest he face the dismissal of his claims.” Excel Energy,

246 F. App’x at 959–60. However, even when the district court fails to provide adequate

notice to the party against whom summary judgment is granted, its judgment will be

upheld unless the losing party can demonstrate prejudice. Id. at 960. Otherwise,

“remanding the case to the district court would merely entail an empty formality with

no appreciable possibility of altering the judgment.” Id. The inquiry is thus two-fold:

losing parties must demonstrate both that they lacked sufficient notice of the district

court’s action and that they suffered prejudice as a result.

A. Notice

“[T]his Court looks to the totality of the proceedings below to determine whether

the losing party had sufficient notice of the possibility that summary judgment could be

granted against it.” Turcar, LLC v. I.R.S., 451 F. App’x 513 (6th Cir. 2011). “In

evaluating this question, this Court considers whether the prevailing party moved for

summary judgment; whether the losing party moved for summary judgment; what issues

the parties focused on in their briefs; what factual materials the parties submitted to the

court; and whether motions were filed by co-defendants.” Id. Considering the totality

of the proceedings in the district court, Plaintiff did not have sufficient notice that

summary judgment would be granted against her on alternative grounds because the

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entirety of the discussion and argumentation surrounding summary judgment focused

on the issue of collateral estoppel.

Defendants’ motion for summary judgment, even in its caption, exclusively

referenced only their “Seventeenth Affirmative Defense,” namely that Plaintiff’s claims

were barred by the doctrine of collateral estoppel and by operation of Ohio Rev. Code

§ 4112.14(C). The memorandum of law in support of that motion discussed only these

issues, and it specifically stated Defendants’ hope that if Plaintiff’s claims could be

dismissed on this basis that “costly discovery” on the merits of Plaintiff’s claims “can

be avoided.” Plaintiff’s response to the summary judgment motion likewise concerned

itself only with arguments related to the issue of collateral estoppel. Plaintiff’s response

also mentioned the ongoing discovery, objecting to what she perceived as Defendants’

attempt to evade further discovery by requesting summary judgment.

While these motions were pending, the district court had before it a fully briefed

discovery dispute relating to Plaintiff’s request for information pertaining to executive

sessions of the board of education. The district court held in abeyance a decision on the

discovery dispute until it ruled on Defendants’ summary judgment motion, ostensibly

to avoid an unnecessary ruling and to avert the need for discovery altogether, as

Defendants had hoped. Instead of resolving the discovery dispute or disposing of the

collateral estoppel issues in their entirety, the district court chose to chart a different

course. It disposed of two of Plaintiff’s claims on statutory and collateral estoppel

grounds and, without notifying the parties, two claims on other grounds. The district

court addressed Plaintiff’s reasonable accommodations claim on the merits, finding that

Plaintiff’s requested accommodations were either provided to her or were unreasonable.

The district court also determined that Plaintiff’s claim of intentional infliction of

emotional distress had not been sufficiently pleaded.

Considering the totality of these proceedings, Plaintiff could not have been aware

that summary judgment would be entered against her on grounds that had not been raised

by either party. The argumentation through three briefs—an opening motion, a response,

and a reply—dealt entirely with collateral estoppel and the operation of Ohio Rev. Code

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§ 4112.14(C). No mention was made of the possibility that summary judgment would

be granted on some other basis. Indeed, the further factual development of Plaintiff’s

claims through discovery was put on hold in anticipation of the district court’s decision

on collateral estoppel. Plaintiff could not have been expected to “come forward with all

of [her] evidence,” Celotex Corp., 477 U.S. at 326, because Defendants intended

summary judgment to obviate the need to conduct any further discovery of that evidence.

Defendants argue that Plaintiff’s response to its summary judgment motion

contained sufficient factual and legal information to demonstrate her awareness that a

broader grant of summary judgment was possible. A district court can grant summary

judgment when “the basis for granting summary judgment [is] embraced within the

evidence and arguments presented by the parties.” Turcar, 451 F. App’x at 515.

Plaintiff submitted an affidavit in support of her response that described her requests for

accommodations and the school’s response to them. Defendants assert that this evidence

“negate[s] her accommodations claim as a matter of law.”

On the contrary, Plaintiff’s affidavit merely reiterates as background the same

allegations made in her complaint—that Defendants either denied her requests for

accommodations or failed to provide even those accommodations to which they had

agreed. Plaintiff’s response did not introduce new facts or legal argumentation on the

subject of accommodations, nor could she have marshaled all her evidence to withstand

summary judgment because the discovery process had been put on hold to await a

decision on the issue of collateral estoppel. Plaintiff should not be deemed to have had

“constructive” notice of the grounds of the district court’s impending decision merely

by restating various background facts, particularly when she was not given the

opportunity to develop those facts or put them in context.

B. Prejudice

In addition to lack of notice, a losing party must also demonstrate that it was

prejudiced by the district court’s failure to provide an opportunity to respond with more

evidence. See Excel Energy, 246 F. App’x at 960; see also Harrington v. Vandalia-

Butler Bd. of Ed., 649 F.2d 434, 436 (6th Cir. 1981) (finding that the district court’s sua

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 14

sponte grant of summary judgment is subject to the “harmless error” rule). The losing

party must “demonstrate[] that it could have produced new favorable evidence or

arguments had more notice been given.” Turcar, 451 F. App’x at 515. Defendants

argue that Plaintiff has no such evidence and that she was not prejudiced by the district

court’s grant of summary judgment.

Defendants’ argument assumes that Plaintiff cannot come forward with any

additional evidence in support of her claims. The fact that a discovery dispute was held

in abeyance pending a decision on summary judgment reveals the misguided nature of

that assumption. Plaintiff was seeking in discovery the very evidence that Defendants

now accuse her of lacking. She was prevented from further developing the record

because summary judgment was granted and the discovery dispute was prematurely

ended. To demonstrate prejudice, Plaintiff need only show that she “could have

produced new favorable evidence.” Turcar, 451 F. App’x at 515. Had Plaintiff been

given notice that the district court was considering granting summary judgment on

alternative grounds, she could conceivably have sought or produced additional evidence

to defend against summary judgment.

With respect to her ADA reasonable accommodations claim, Plaintiff argues that

she would have presented evidence of the reasonableness of the accommodations she

requested. The district court summarily concluded that some of Plaintiff’s requested

accommodations were not reasonable, but no evidence had been introduced on the issue.

The district court must allow Plaintiff to develop the record. Plaintiff submits that if she

had been given notice of the district court’s intention to rule on alternative grounds, she

would have submitted the affidavit of Dr. Joel Steinberg, a forensic psychiatrist, who

would have testified about the types of accommodations that would have been

reasonable and appropriate for Plaintiff’s disability. Additionally, Plaintiff states that

she would have conducted written discovery to explore the types of accommodations

that other individuals with disabilities received. This evidence may have been sufficient

to establish that Defendants either denied Plaintiff a reasonable accommodation in

No. 12-3187 Smith v. Perkins Bd. of Educ., et al. Page 15

violation of the ADA or failed to provide even those accommodations to which they had

agreed.

With respect to Plaintiff’s claim of intentional infliction of emotional distress,

Plaintiff was never given the opportunity to request leave to amend her complaint.

Without notice that a dismissal was in the offing, Plaintiff would have had no reason to

suspect that her complaint would be found deficient. We leave to the district court the

decision whether or not to grant leave to amend, but Plaintiff should be given the chance

to request the opportunity to amend, which is routinely afforded to other litigants.

See Neitzke v. Williams, 490 U.S. 319, 329–30 (1989) (“[A] plaintiff with an arguable

claim is ordinarily accorded notice of a pending motion to dismiss for failure to state a

claim and an opportunity to amend the complaint before the motion is ruled upon.”).

Because additional discovery could reveal evidence that would support Plaintiff’s ADA

claim and an amended complaint may cure the deficiency of her intentional infliction of

emotional distress claim, Plaintiff has demonstrated the likelihood of prejudice. Having

determined that Plaintiff had no notice and was likely prejudiced by the district court’s

sua sponte grant of summary judgment on alternative grounds, we remand so that

Plaintiff can further develop the record and the district court can consider all the

evidence before ruling on summary judgment. See Bennett, 410 F.3d at 816.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decision as to Count

One, REVERSE as to Counts Two, Three, and Four, and REMAND for further

proceedings consistent with this opinion.