Case Information
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION
EVIS BRINSON, ) CASE NO. 5:21-cv-1638
)
) PLAINTIFF, ) JUDGE SARA LIOI
)
vs. ) MEMORANDUM OPINION
)
)
SUMMIT COUNTY, et al., )
)
)
DEFENDANTS. )
Pеnding before this Court is the motion for summary judgment filed by defendants Eric Czetli (“Czetli”), Kandy Fatheree (“Fatheree”), and Summit County (collectively, “defendants”). (Doc. No. 79 (Motion).) Plaintiff Evis Brinson (“Brinson”) filed an opposition (Doc. No. 86 (Opposition)), and defendants filed a reply (Doc. No. 90 (Reply)). For the reasons discussed herein, defendants’ motion for summary judgment is GRANTED, and this case is dismissed.
I. BACKGROUND
As discussed at length in this Court’s previous memorandum opinion and order resolving defendants’ motion for partial judgment on the pleadings, Brinson’s claims against defendants stem from his employment as and termination from the position of Director of Diversity and Outreach for the Summit County Sheriff’s Office (“Director of Diversity”). ( See generally Doc. No. 30.)
While the parties disagree on many things, the following facts are undisputed: After assisting Fatheree with her successful campaign for Summit County Sheriff (Doc. No. 66-1 (Deposition of Evis Brinson), at 70:1–72:8 [1] ; Doc. No. 69-1 (Deposition of Kandy Fatheree), at 289:23–290:2), Brinson applied and interviewed to be hired as the first ever Director of Diversity in the Summit County Sheriff’s Office (Doc. No. 66-1, at 103:3–21)—a position Fatheree created as the newly elected Sheriff. ( Id. at 137:11–23; Doc. No. 69-1, at 321:9–18.) Ultimately, on March 1, 2021, Brinson was hired for the position as an at-will employee. (Doc. No. 66-1, at 178:19– 179:5.)
Almost immediately after Brinson began working as the Director of Diversity, Brinson and defendants began perceiving issues with each other. Brinson contends that he faced race discrimination and retaliation for attempting to promote diversity and inclusion within the Sheriff’s Office. ( See, e.g. , Doc. No. 66-1, at 196:8–24, 267:9–18, 527:25–528:10.) Fatheree contends, however, that Brinson showed to be unprofessional and not as well suited for the role as she believed when she hired him. ( See, e.g. , Doc. No 69-1, at 268:2–12, 410:24–411:5, 416:3–8, 465:6–17.) On March 26, 2021, after only 26 days as Director of Diversity, Fatheree terminated Brinson’s at-will employment. (Doc. No. 66-1, at 178:4–9.)
Brinson filed the instant action on August 23, 2021. ( See generally Doc. No. 1 (Complaint).) Brinson’s operative third amended complaint, filed on March 15, 2022, alleged a total of twelve different causes of action [2] against Czetli, Fatheree, Summit County, and John Does 1-10. ( See generally Doc. No. 30.) On June 29, 2022, defendants filed a motion for partial judgment on the pleadings. On November 30, 2022, this Court granted in part and denied in part defendants’ motion for partial judgment on the pleadings. As a result, this case proceeded with the following claims only:
Brinson’s claim against Fatheree for a discrete act of racial discrimination in violation of the Fourteenth Amendment’s Equal Protection Clause under 42 U.S.C. § 1983 (second cause of action);
Brinson’s claim against Fatheree for retaliation in violation of the First Amendment under 42 U.S.C. § 1983 (second cause of action);
Brinson’s Monell claim against Summit County based on the theory that Fatheree ratified a hostile work environment of racial discrimination (second cause of action); Brinson’s claims against Summit County for discrimination, retaliation, and hostile work environment in violation of 42 U.S.C. § 2000e (third cause of action); Brinson’s claim against Summit County for race discrimination in violation of Ohio law (fourth cause of action);
Brinson’s claims against Fatheree and Summit County for retaliation in violation of state anti-discrimination laws (fifth cause of action);
Brinson’s claim against Summit County for a hostile work environment in violation of Ohio law (sixth cause of action);
Brinson’s claims against Fatheree, Czetli, and Summit County for aiding-and-abetting discrimination in violation of Ohio law (seventh cause of action); Brinson’s claim against Fatheree for tortious interference with a business relationship in violation of Ohio law (eight cause of action); and
Brinson’s claims against Summit County for negligent training and negligent supervision in violation of Ohio law (tenth cause of action).
promissory estoppel. (Doc. No. 30 ¶¶ 85–193.)
( See Doc. No. 64, at 39–40.) On December 9, 2022, defendants filed the instant motion for summary judgment, seeking dismissal of all these remaining claims. (Doc. No. 79.) On January 9, 2023, Brinson filed his opposition (Doc. No. 86), and on January 30, 2023, defendants filed a reply (Doc. No. 90). This matter is now ripe for the Court’s review.
II. Legal Standard – Motion for Summary Judgment
When a party files a motion for summary judgment, it must be granted “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 party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
In reviewing summary judgment motions, this Court must view the evidence in a light most
favorable to the nonmoving party to determine whether a genuine issue of material fаct exists.
Adickes v. S.H. Kress & Co
.,
“Once the moving party has presented evidence sufficient to support a motion for summary
judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant
probative evidence must be presented to support the complaint.”
Goins v. Clorox Co
., 926 F.2d
559, 561 (6th Cir. 1991). “The nonmoving party has an affirmative duty to direct the court’s
attention to those specific portions of the record upon which it seeks to rely to create a genuine
issue of material fact.”
Fulson v. Columbus
,
Moreover, conclusory allegations, speculation, and unsubstantiated assertions are not
evidence, and are not sufficient to defeat a well-supported motion for summary judgment.
See
Lujan v. Nat’l Wildlife Fed’n
,
III. DISCUSSION
In their motion, defendants contend that they are entitled to judgment on all Brinson’s remaining claims.
1. Brinson Cannot Point to Any Discrete Act of Racial Discrimination to Advance his Section 1983 Claim Against Fatheree for a Violation of the Fourteenth Amendment’s Equal Protection Clause.
While terminating someone because of their race is an unlawful discrete discriminatory
act, Brinson has failed to produce
any
evidence that suggests Fatheree terminated him because of
his race.
See Hunter v. Sec’y of U.S. Army
,
Brinson’s claim that Fatheree terminated his employment because she believed that her staff would never accept an African American was the only plausible discrete act of discrimination that Brinson sufficiently alleged against Fatheree in his complaint, and Brinson has not pointed to any other discrete acts of race discrimination by Fatheree that emerged during fact discovery. [4] As such, even viewing the evidence in a light most favorable to Brinson, the Court concludes that Fatheree is entitled to judgment as a matter of law on Brinson’s Section 1983 claim against her and the claim is dismissed.
2. Brinson Has Not Established that Fatheree Retaliated Against Him for Any Protected Speech in Violation of the First Amendment.
To establish retaliation under the First Amendment, Brinson must show (1) that his
statements were protected under the First Amendment; (2) that he suffered an adverse employment
action; and (3) that the adverse action was motivated at least in part as a response to the exercise
of his constitutional rights.
Fox v. Traverse City Area Pub. Sch. Bd. of Educ.
,
A public employee’s report of discrimination that he or she personally faced because of
their race is considered protected speech made as a private citizen.
Jennings v. Wayne Cnty.
, No.
13-10392,
Brinson points to four “reports” that he contends he made to Fatheree and are protected conduct that caused Fatheree to retaliate against him:
(1) reporting racially hostile, harassing and biased comments made to him by Smith on several occasions (including in Fatheree’s presence); (2) reporting the targeting and pushback he received in response to his efforts to identify and oppose racial and other inequalities and biases; (3) reporting the barriers and restrictions placed on his ability to perform his essential job functions, particularly those related to race and opposing discrimination and bias; and
(4) reporting the potential race discrimination he discovered against another African-American[sic] employee.
(Doc. No. 86, at 29 (footnotes omitted). [5] )
To the extent Brinson reported race discrimination directed at him personally, such a report
is considered protected speech made as a private citizen.
Jennings
,
a) Chief Smith’s Comments
There is no well-supported evidence in the record that Brinson ever told Fatheree that he
felt racially harassed or discriminated against because of comments Chief Doug Smith (“Chief
Smith”) made about the deaths of Breonna Taylor and/or George Floyd. Brinson’s declaration that
he told Fatheree that Chief Smith’s comments offended him (Doc. No. 86-6 (Declaration of Evis
Brinson) ¶ 38), directly contradicts Brinson’s testimony that he never reported any perceived racial
discrimination to Fatheree. (
E.g.
, Doc. No. 66-1, at 552:2–7.) Brinson “cannot create a genuine
issue of material fact by filing a[ declaration], after a motion for summary judgment has been
made, that essentially contradicts his earlier deposition testimony.”
Arel, S.R.L. v. PCC Airfoils,
LLC
,
To be sure, Brinson does not cite any testimony that he reported Smith’s comments to Fatheree—only that Fatheree was present for at least some of Chief Smith’s comments. ( See, e.g. , Doc. No. 66-1, at 339:5–340:16; see also Doc. No. 69-1, at 455:22-456:21). But there is no evidence that Brinson ever reported feeling harassed or discriminated against based on that conversation. When asked at his deposition whether he ever told Fatheree that he felt discriminated against because of his race, Brinson repeatedly testified that he did not. (Doc. No. 66-1, at 339:5– 10, 409:12–411:22, 552:2–7.)
Fatheree cannot be liable for retaliating against Brinson for reporting that he felt harassed or discriminated against because of Chief Smith’s comments when there is no evidence in the record that Brinson ever reported those feelings to Fatheree. Further, even if Brinson had reported this perceived discrimination to Fatheree, Brinson has not cited any evidence (beyond his own conclusions) that he was subjected to any adverse employment actions because of such a report. For these reasons, Brinson’s non-existent “report” about Chief Smith’s comments cannot serve to advance Brinson’s retaliation claim against Fatheree.
b) Targeting and Pushback Brinson Received in Response to His Efforts to Identify and Oppose Racial and Other Inequalities and Biases Brinson fails to specify what he means by “targeting and pushback” or cite any specific evidence of the same, [7] but this Court presumes—based on Brinson’s deposition testimony concerning “targeting”—that he is referring to an incident following an email he sent on March 11, 2021, to only black deputies about a Black Male Summit at the University of Akron (the “Black Male Summit Email”). ( See Doc. No. 66-14.)
After Brinson sent the Black Male Summit Email, a black deputy complained that the email was not sent to all deрuties. (Doc. No 79-4 (Declaration of Corey Thompson) ¶¶ 3–9.) The deputy declared that he felt Brinson’s email was “divisive, not inclusive, and not consistent with the role [Brinson] held[.]” ( Id. ¶ 8.) Chief Smith and Czetli met with Brinson, reported the deputy’s complaint, and told Brinson to send the email to all deputies, regardless of their race. (Doc. No. 77-1 (Deposition of Doug Smith), at 334:22–336:20; Doc. No. 69-1, at 395:7–396:9; Doc. No. 66- 1, at 240:09–241:4.) Brinson testified that he then met with Fatheree and told her that he felt Chief Smith and Czetli were “[]wrongfully target[ing]” him because Brinson believed Fatheree gave him permission to send the email to black deputies only. (Doc. No. 66-1, at 232:14–233:4.)
While there seems to be disagreement over the extent to which Brinson received prior approval to send the email to black deputies only (Doc. No. 66-1, at 232:9–235:18; Doc. No. 69- 1, at 395:7–17), that disagreement is immaterial because it is undisputed that Brinson never told Fatheree that he felt that Chief Smith and Czetli were targeting Brinson because of his race when they met with him, reported the deputy’s complaint, and told Brinson to send the email to all deputies. (Doc. No. 66-1, at 236:11–22.) Brinson testified to his own conclusion that he was being “targeted” because of his race, but he very clearly testified that he never conveyed that conclusion or feeling to Fatheree, or anyone else, at the time. ( Id. ) As such, there is no evidence that suggests Brinson’s follow up with Fatheree amounts to protected speech because there is no evidence that Brinson reported any perceived race discrimination.
For these reаsons, Brinson’s follow-up to the Black Male Summit Email is not protected speech and cannot serve to advance Brinson’s retaliation claim. [8]
c) Barriers and Restrictions Placed on Brinson’s Ability to Perform His Essential Job Functions
Faced with undisputed evidence that he never explicitly told Fatheree that he was being discriminated against because of his race, Brinson unsuccessfully attempts to save his claim by relying on an email that he sent to Fatheree on March 21, 2021 (Doc. No. 66-20 (the “March 21, 2021 Email”)), contending that it amounts to a report of race discrimination. (Doc. No. 86, at 20; Doc. No. 66-1, at 512:3–11.) But a review of the March 21, 2021 Email reveals nothing that could be read as reporting race discrimination, or any other matter of public concern.
In the March 21, 2021 Email, Brinson made several comments concerning his personal views on the appropriate reporting structure for his position and expressed displeasure that, in his view, he had been excluded from some “key communication discussions critical to [his] role[.]” (Doc. No. 66-20.) It is clear that Brinson was unhappy with his position’s reporting structure and blamed the reporting structure for his exclusion from these “key communication discussions.” ( Id. (“Regardless of who occupies this position, they should not be left in the hands of anyone but the Sheriff. I have already been left out of key communication discussions critical to my role and should have been brought in at the conception or brought up to speed as soon as I started.”).) But nowhere in the March 21, 2021 Email did Brinson say anything to suggest that he had faced any race discrimination by virtue of not reporting to the Sheriff. Brinson did not accuse anyone of excluding him from any “key communication discussions” on purpose, let alone excluding him because of his race. In fact, Brinson provided two examples of “key communication discussions,” and he actually was included in one of them, albeit not as soon as he seemingly would have liked. (Doc. No. 66-1, at 301:24–302:7 (testifying that he did attend the “Green DEI Event”).)
Brinson’s March 21, 2021 Email then listed several vague resources and conditions he believed were necessary to effectively perform his job. (Doc. No. 66-20.) But, again, Brinson did not say anything in the email that would suggest anyone was purposefully denying him access to any of these resources or conditions, let alone denying him access because of his race. In fact, Brinson testified that he actually was readily provided numerous resources and assistance necessary to perform his job duties ( see, e.g. , Doc. No. 66-1, at 522:18–526:21), including some of the resources specifically identified in the March 21, 2021 Email. ( Compare Doc. No. 66-1, at 291:16–22 (testifying that he did receive some statistics from the Jail), with Doc. No. 66-20 (“[c]ollect[ing] [d]ata from departments); compare also Doc. No. 66-1, at 301:2–22 (testifying that he was offered the opportunity to schedule a ride-along with a deputy), with Doc. No. 66-20 (“shadowing all departments”).)
Further, the fact that part of Brinson’s role was to address matters of public concern (racial
inequalities), does not automatically convert all Brinson’s workplace conduct to a matter of public
concern. Brinson’s complaints about his reporting structure and resources for his position are
focused on his personal interests rather than matters of public concern. Disputes about personal
interest are not protected speech, even when they tangentially touch matters of public concern.
See
Rose v. Stephens
,
The closest Brinson comes to establishing that his March 21, 2021 Email involved a matter of public concern is his contention that he was complaining to Fatheree that race was “off the table” and he was prohibited from addressing racial inequalities within the Sheriff’s Office. (Doc. No. 86, at 21.) But Brinson has not pointed to any evidence, besides his own conclusions, that he was not allowed to address racial inequalities within the Sheriff’s Office. Rather, Brinson’s actual testimony is that Fatheree told him to take a “softer approach,” which Brinson concluded on his own to mean that race was “off the table.” (Doc. No. 66-1, at 518:9–519:5; see also Doc. No. 69- 1, at 411:2–5 (testifying that she told Brinson to take a “softer approach”).) There is no other evidence to suggest the Director of Diversity was, in fact, restricted from addressing race. In fact, Brinson attended an event with Fatheree on March 20, 2021 (after he claims she told him to take a “soft” approach), during which Fathereе explicitly mentioned race when talking about the importance of diversity and inclusion. ( See Doc. No. 80 (Videotape Recording), at 2:52–3:33.) Brinson himself mentioned during the event that he was looking at data related to race at the Sheriff’s Office. ( Id. at 19:08–19:37.) Brinson and Fatheree also directly addressed questions about the intersection of race and policing. For example, Fatheree said that Brinson would be part of any response to a civil complaint that a deputy was “profiling.” ( Id. at 54:56–55:24.) Brinson’s replacement as Director of Diversity also testified that she addresses race as part of her duties. ( See, e.g. , Doc. No. 74-1 (Deposition of Ester Thomas), at 315:6–20.) Even further, Brinson’s own email from March 25, 2021, mentions he will “move froward” with discussing “racial equity – diversity.” (Doc. No. 79-1, at 19 (Exhibit E).)
In sum, the March 21, 2021 Email evinces an internal dispute concerning Brinson’s preferred reporting structure, resources, and focus—not a complaint that the Sheriff told the Director of Diversity he could not address race at all or a report that the Director of Diversity was being discriminated against because of his race. As such, the March 21, 2021 Email cannot serve as protected speech to advance Brinson’s retaliation claim.
d) Tina Outley
Brinson testified that he reported a potential race discrimination issue to Fatheree concerning a Sheriff’s Office employee by the name of Tina Outley (“Outley”). (Doc. No. 66-1, at 413:15–414:3; 548:7–549:12.) According to Brinson’s testimony, someone besides Outley alerted Brinson to the potential racе discrimination. ( Id. ) Brinson testified that he spoke with Outley who told him that her white colleagues at the Sheriff’s Office went to lunch without inviting her. ( Id. at 413:19–25.) Brinson testified that he then alerted Fatheree to this situation. ( Id. at 414:1–3.)
It is undisputed that this report did not concern any race discrimination directed at Brinson
personally. Rather, Brinson, in his role as a Sheriff’s Office employee, investigated a potential
claim of race discrimination and then reported the same to Fatheree. Brinson testified that the
Summit County Sheriff’s Office Rules and Regulations required any employee who became aware
of potential discrimination or harassment to report it. (Doc. No. 66-1, at 221:1–4.) As such, Brinson
was acting within the scope of his duties when he reported the incident of potential discrimination
to Fatheree.
See Harrison
,
Further, nothing in the record suggests that Brinson reported the potential instance of race
discrimination to anyone besides Fatheree.
Cf. See v. City of Elyria
,
But even if the report were considered protected conduct, Brinson has not pointed to any evidence that suggests Fatheree fired him because of this report. By Brinson’s own admission, he reported potential discrimination to Fatheree and did not know “where [it] went after that,” suggesting the issue never came up again. (Doc. No. 66-1, at 414:1–3.) Besides Brinson’s own speculation, there is no evidence that Brinson’s report of potential discrimination against Outley played any role in Fatheree’s decision to terminate his employment. Jennings v. Cnty. of Monroe , 630 F. App’x 547, 555 (6th Cir. 2015) (“[S]peculation . . . is insufficient to defeat summary judgment. A party cannot defeat summary judgment with ‘[c]onclusory allegations, speculation, and unsubstantiated assertions.’” (citations omitted)).
For all the aforementioned reasons, the Courts finds there is no well-supported evidence in the record to suggest that Fatheree retaliated against Brinson for any constitutionally protected conduct and the Courts finds that no reasonable juror could find otherwise. Thus, Fatheree is entitled to judgment as a matter of law on Brinson’s claim of retaliation in violation of the First Amendment and this claim is dismissed.
3. Brinson Cannot Establish His Monell Claim Against Summit County Because He Cannot Establish the Underlying Claims of Hostile Work Environment.
To maintain his Monell claim against Summit County, Brinson must first establish that he was deprived of a right guaranteed by the Constitution or federal law—and he cannot. Cash v. Hamilton Cnty. Dep’t of Adult Prob. , 388 F.3d 539, 542 (6th Cir. 2004) (describing two-step analysis in the Sixth Circuit when considering a municipal-liability claim: (1) whether plaintiff asserted the deprivation of a right guaranteed by the Constitution or federal law, and (2) whether the alleged deprivation was caused by the defendants acting under color of state law). The Court has now dismissed Brinson’s claims of race discrimination under the Fourteenth Amendment and retaliation in violation of the First Amendment. [9] Thus, the only possible remaining alleged violation that could support Brinson’s Monell claim against Summit County is his claim that Fatheree ratified a hostile work environment of racial discrimination in violation of the Equal Protection Clause and 42 U.S.C. § 2000e (“Title VII”). [10] Brinson, however, has failed to produce any evidence to support an underlying hostile work environment claim.
To establish his hostile work environment claim, Brinson must show that (1) he belonged
to a protected group, (2) he was subjected to unwelcome harassment, (3) the harassment was based
on his protected status, (4) the harassment was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working environment, and (5) the defendant knew
or should have known about the harassment and failed to act.
Boxill v. O’Grady
,
Brinson does not point to any instances of harassment sufficient to establish his hostile work environment claim. Instead, in his opposition brief, Brinson cites to “the Sheriff’s Office [] long-maintained [] ‘good ole boys network’ of employees, practices and attitudes that have subjected minorities – including African-Americans[sic] – to unlawful terms and conditions in their hiring and employment.” (Doc. No. 86, at 32–33.) Brinson then contends that Fatheree knew that Brinson “was experiencing biased and unequal treatment[,]” that “his colleagues would never accept him because of his race and job duties,” and that his colleagues “were secretly conducting investigations into [Brinson’s] background to get him fired.” ( Id. at 33.) Brinson then claims that Fatheree “completely ignored all [] Brinson’s complaints and ratified the conduct of her staff until she took direct action to retaliate against him, including terminating his employment.” ( Id. )
Brinson does not cite a single piece of evidence to support any of these claims in his opposition brief. As already discussed, it is undisputed that Fatheree never told Brinson that his colleagues would never accept him because of his race. (Doc. No. 66-1, at 415:12–417:4.) There is likewise no evidence that Fatheree told Brinson that his colleagues would not accept him because of his job duties ( see id. at 417:21–418:2), but, even if she did, Brinson’s claim is one of a hostile work environment because of his race and Brinson has not produced any evidence to suggest any colleagues would not accept his diversity initiatives because of his race. In contrast, the evidence suggests only that his colleagues would accept a black Director of Diversity because is undisputed that Fatheree hired a black Director of Diversity to replace Brinson, who remains employed in that position. ( Id. at 418:21–419:6.) Further, there is no evidence that Brinson’s replacement has not been accepted by the Sheriff’s Office staff. ( Cf. Doc. No. 79-4 ¶ 11; Doc. No. 74-1, at 235:21– 236:3, 237:21–24 (testifying that she was able to visit the jail and receive data from the jail— resources Brinson claims he was denied because of his race).)
Likewise, there is no evidence in the record, besides Brinson’s own speculative testimony,
to support his claim that his colleagues were looking into his background to get him fired because
of his race. (Doc. No. 66-1, at 308:11–13, 345:14–18, 426:18–21.) Brinson’s own conclusions,
standing alone, are too speculative to support his claim of hostile work environment.
See Chappell
v. City of Cleveland
,
And to the extent Brinson is relying on comments made by Chief Smith, even if those
comments amounted to harassment because of Brinson’s race, Brinson has not pointed to evidence
that these comments are sufficiently “severe or pervasive” under Sixth Circuit case law. To
determine whether workplace harassment is sufficiently severe or pervasive, the Court is to
consider the “totality of the circumstances.”
Williams v. Gen. Motors Corp.
,
Considering the totality of the circumstances, the Court finds that no reasonable juror could find that Chief Smith’s comments subjected Brinson to a hostile work environment of race discrimination. Brinson never testified how mаny times Chief Smith made comments about the deaths of Breonna Taylor and/or George Floyd, but Brinson declares that it was “several” times. (Doc. No. 86-6 ¶ 35.) Had Chief Smith made the alleged comments “several times” to a black deputy or other black staff member in a short period of time, then the Court might be more inclined to find the comments could amount to a hostile work environment. But Brinson’s role as Director of Diversity is highly relevant when considering the totality of the circumstances here.
As Director of Diversity, Brinson testified that he “welcome[d]” tough conversations ( see Doc. No. 66-1, at 412:21–413:1), and both Brinson and his replacement testified that “tough conversation[s]” are part of the job. (Doc. No. 66-1, at 412:13–20; Doc. No. 74-1, at 76:7–77:16; 87:22–88:6.) The comments Brinson claims Chief Smith made are all related to the intersection of race and policing. There is no evidence that Chief Smith directed any racially charged comments at Brinson directly. (Doc. No. 66-1, at 420:15–24 (testifying that no one, including Chief Smith, ever made a racist comment directed at him).) Brinson does not contend that Chief Smith made any comments that were physically threatening or humiliating; Brinson only describes Chief Smith’s comments as “hurtful.” (Doc. No. 86-6 ¶ 35.) And Brinson never contends that these comments unreasonably interfered with his work performance. Rather, Brinson declares that while he felt offended, he could “maintain [his] professionalism each time [they] spoke about these hurtful issues.” ( Id. ) Nothing in the record rises to sufficiently severe and pervasive harassment that could advance Brinson’s hоstile work environment claim. See Williams v. CSX Transp. Co. , 643 F.3d 502, 513 (6th Cir. 2011) (granting summary judgment to defendants on hostile work environment claim) (“[S]tatements . . . calling Jesse Jackson and Al Sharpton ‘monkeys’ and saying that black people should ‘go back to where [they] came from’—are certainly insensitive, ignorant, and bigoted. But they more closely resemble a ‘mere offensive utterance’ than conduct that is ‘physically threatening or humiliating.’”).
Even if Brinson had cited to any instances of harassment that could amount to sufficiently severe harassment under Sixth Circuit case law, there is no evidence that Summit County knew or should have known about the harassment and failed to act. Brinson’s opposition brief presupposes that Brinson reported complaints of harassment (Doc. No. 86, at 32), but Brinson testified that he never reported his perceived hostile work environment. (Doc. No. 66-1, at 412:3–12.) And for the reasons discussed supra , neither his March 21, 2021 Email nor any follow-up to the Black Male Summit Email amount to reports of harassment or discrimination because of his race.
Brinson has failed to establish his claim of a hostile work environment in violation of either
the Equal Protection Clause, Title VII, or Ohio law. Accordingly, Brinson’s
Monell
claim against
Summit County fails because he has not asserted the deprivation of any right guaranteed by the
Constitution or federal law.
Davis v. Chorak
, 1:22-cv-166,
But even if Brinson could establish a hostile work environment claim, his
Monell
claim
still fails because he has not produced any evidenсe that Fatheree ratified any harassment or
discrimination by her subordinates. “An official acting with the final decision-making authority
may ratify the unconstitutional acts of its employees in two ways. The first is through ‘affirmative
approval of a particular decision made by a subordinate.’ The second is by ‘failing to meaningfully
investigate and punish allegations of unconstitutional conduct.’”
Alsaada v. City of Columbus
, 536
F. Supp. 3d 216, 270–71 (S.D. Ohio 2021) (first quoting
Feliciano v. City of Cleveland
, 988 F.2d
649, 650 (6th Cir. 1993), then quoting
Wright v. City of Euclid
,
First, there is no evidence that Fatheree affirmatively approved any unlawful harassment
or discrimination by one of her subordinates. At most, Fatheree observed a conversation between
Chief Smith and Brinson about Breonna Taylor and/or George Floyd’s deaths but did nothing to
stop or remedy the conversation. (
See
Doc. No. 66-1, at 340:13–16.) Even if Chief Smith’s
comments amounted to racial harassment, Fatheree’s passive presence is not the type of
affirmative ratification that has been found to establish a
Monell
claim based on a single violative
act.
See Burgess v. Fischer
,
Second, Brinson has not pointed to any evidence that suggests Fatheree failed to investigate
unlawful harassment and discrimination. It has been well established at this рoint that Brinson
never actually reported any perceived harassment or discrimination to Fatheree. The only potential
racial discrimination reported to Fatheree concerned Outley. Even if Fatheree failed to investigate
that incident, and it amounted to harassment or discrimination, one failure does not establish a
pattern.
Stewart v. City of Memphis
,
For all the aforementioned reasons, Summit County is entitled to judgment as a matter of law on Brinson’s Monell claim and this claim is dismissed.
4. Brinson Cannot Establish That Summit County Discriminated Against Him Because of His Race in Violation of Title VII and Ohio Law.
Title VII prohibits employers from engaging in “unlawful employment practice[s],”
including discharging an employee because of the employee’s race, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(a)(1). Similarly, Ohio Rev. Code § 4112.02(A) prohibits an employer
from discriminating against an individual on a variety of bases, including race. The Ohio Supreme
Court has held that federal case law interpreting Title VII is generally applicable to employment
discrimination claims brought under Ohio Rev. Code § 4112.02.
Plumbers & Steamfitters Joint
Apprenticeship Comm. v. Ohio Civ. Rts. Comm’n
,
To establish a prime facie case of employment discrimination based on termination, a plaintiff must show that
1) he is a member of a protected class; 2) he was qualified for the job and performed it satisfactorily; 3) despite his qualifications and performance, he suffered an adverse employment action [(was discharged)]; and 4) he was replaced by a person outside the protected class or was treated less favorably than a similarly situated individual outside of his protected class.
Laster v. City of Kalamazoo
,
Once a plaintiff establishes a
prima facie
case, the burden of production shifts to the
defendant to overcome the presumption of discrimination by coming forward with evidence of a
legitimate, non-discriminatory reason for its actions.
Kuhn v. Washtenaw Cnty.
,
Here, it is undisputed that Brinson was replaced by someone from the same protected class. (Doc. No. 66-1, at 418:21–419:5.) Further, Brinson has not cited any evidence establishing that he was treated less favorably than similarly situated white employees. Fatheree testified that she terminated a white at-will employee (Chief Smith) for analogous reasons as those given for terminating Brinson (disagreements over job-related conduct). (Doc. No. 69-1, at 415:12–18.) Brinson dоes not dispute this fact and, in fact, concedes that Chief Smith is a “comparator” for purposes of this Court’s analysis. (Doc. No. 86, at 35.)
Nonetheless, Brinson attempts to create a genuine issue of material fact by contending that
he was treated less favorably because (1) Fatheree held him to a higher standard because of his
position; (2) he was expected to handle the “tough conversations”; (3) he was the only member of
the cabinet who had to apply and interview for a position, which he was ultimately given; (4) he
was the only employee threatened that he would not make it to his start date; (5) he was the only
employee expected to memorize the Sheriff’s Office’s polices and union contracts; (6) he was the
only employee whose job responsibilities were actively undermined and performed by others; (7)
he was the only employee accused of being unprofessional under Fatheree’s tenure; and (8) he was
the only employee fired after just twenty working days of employment. (
Id.
at 36–37.) Most of
these contentions have been addressed by the Court in this memorandum opinion already and the
Court has found that they do not evince that Brinson was being discriminated against because of
his race. As for the contentions not addressed explicitly already, the same is true. Even if Fatheree
believed that, by its very nature, the Director of Diversity position demanded a higher level of
professionalism than other positions within the department, thе Director of Diversity position itself
is not a protected class and there is no evidence that Fatheree held Brinson to a higher standard
because of his race. Further, as the Sixth Circuit has repeatedly noted, “in cases where the hirer
and firer are the same individual and the termination of employment occurs within a relatively
short time span following the hiring, a strong inference exists that discrimination was not a
determining factor for the adverse action taken by the employer.”
Buhrmaster v. Overnite Transp.
Co.
,
But even if Brinson had established a prime facie case of unlawful termination based on his race, Summit County has provided a legitimate, non-discriminatory reason for its actions and Brinson cannot establish that the reason was mere pretext. To establish pretext, a plaintiff may show that the defendant’s proffered reason “(1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Carter v. Univ. of Toledo , 349 F.3d 269, 274 (6th Cir. 2003) (quotation marks and citation omitted).
Brinson contends that there is a genuine issue of material fact as to whether he was qualified for the position and, thus, a genuine issue of material fact as to whether Fatheree’s stated reason for his termination was pretextual. (Doc. No. 86, at 37.) In doing so, Brinson completely ignores Fatheree’s actual stated reasons for terminating his employment. Fatheree does not claim she terminated Brinson because he lacked any enumerated “experience,” “education,” or “skill” ( see id. )—Fatheree declared (and testified) that she terminated Brinson because he was not the “right person” for the position and “not what he represented himself . . . to be.” (Doc. No. 79-1 ¶ 34; see also Doc. No. 69-1, at 416:3–8; 465:2–15.) Thus, whether Brinson was objectively “qualified” for the position is immaterial to whether Fatheree subjectively felt that he was the “right person” for the job or otherwise “not what he represented himself . . . to be.”
Fatheree declared that she came to feel Brinson was not the right person for the job because, in part, he was unable to “articulate a plan or add substance to meetings to advance a robust diversity, equity and inclusion program” and because she felt Brinson was “more focused on pushing his desired reporting structure and pursuing his own agenda.” (Doc. No. 79-1 ¶ 34.) Brinson does not contest either of these facts in his opposition brief [12] and the record evidence supports Fatheree’s declaration. ( See, e.g. , Doc. No. 77-1, at 84:10–85:4; Doc. No. 70-1 (Deposition of Eric Czetli), at 196:18–197:16, 200:7–201:15; see also id. at 228:23–229:10 (testifying that he did not think Brinson was the right person for the job even during his interview); Doc. No. 73-1 (Deposition of Matamba Kaalima), at 62:24–65:15 (testifying that he did not think Brinson was the right person for the job even during his interview, ranked him last, and felt Brinson was a “poser”); Doc. No. 69-1, at 357:22–358:12, 408:3–10, 409:7–17.) In fact, Brinson concedes in his own testimony that he did not articulate any plan to Fatheree until March 26, 2021 ( see Doc. No. 66-1, at 349:13–22, 366:14–368:3; see also Doc. No. 86, at 21 n.75)—at which point Fatheree had decided already to terminate his employment. (Doc. No. 69-1, at 418:12–14.) Further, Brinson’s own March 21, 2021 Email evinces his clear displeasure with his reporting structure and Brinson does not deny that he was complaining about the reporting structure—even if it was only the first time he did. ( See generally Doc. No. 66-20; see also Doc. No. 86-6 ¶ 44.)
Brinson seems to suggest that because Fatheree held Brinson to a higher standard and did
not give him more time to show he could advance her vision or provide him with clear warning of
his shortcomings, that this somehow evinces his termination was because of his race. (
See
Doc.
No. 86, at 21–22.) But Brinson was hired as an at-will employee. (Doc. No. 66-1, at 140:8–12.)
As an at-will employee, Fatheree had the right to terminate Brinson for any non-discriminatory
reason, at any time. (
See id.
at 142:12–25.) Brinson has not pointed to any term in his employment
contract that required Fatheree to retain him for any certain period of time so he could demonstrate
Brinson’s termination that is undisputedly otherwise based in fact. But the record suggests that, whether Brinson
intended to be offensive or not, Fatheree thought he was.
Majewski v. Automatic Data Processing, Inc.
,
his worth or give him warning of his shortcomings. And, as this Court has found already, еven if Fatheree believed that, by its very nature, the Director of Diversity position demanded a higher level of professionalism than other positions within the department, there is no evidence that Fatheree held Brinson to a higher standard because of his race.
Even viewing the evidence before the Court in the light most favorable to Brinson, it suggests only that, after 20 working days, Fatheree was not satisfied with Brinson’s performance or priorities and, thus, terminated his employment because she had come to believe that he was not the “right person” for the position and “not what he represented himself . . . to be.” There is no evidence of pretext and the Court finds that no reasonable jury could find otherwise.
For all the aforementioned reasons, Summit County is entitled to judgment as a matter of law on Brinson’s claims of discrimination under Title VII and Ohio law and these claims are dismissed.
5. Brinson Cannot Establish That Fatheree and Summit County Retaliated Against Him Because of His Race in Violation of Title VII and Ohio Law.
Brinson has failed to provide evidence that establishes a
prima facie
case of retaliation
under Title VII or Ohio law. A
prima facie
Title VII retaliation claim has four elements: “(1)
[plaintiff] engaged in protected activity, (2) the employer knew of the exercise of the protected
right, (3) an adverse employment action was subsequently taken against the employee, and (4)
there was a causal connection between the protected activity and the adverse employment аction.”
Niswander v. Cincinnati Ins. Co.
,
Title VII’s opposition clause protects not only the filing of formal discrimination charges
with the EEOC, but also complaints to management and less formal protests of discriminatory
employment practices.
See Trujillo v. Henniges Auto. Sealing Sys. N. Am., Inc.
,
Brinson contends that his March 21, 2021 Email and his report of potential discrimination
against Outley were both oppositions to unlawful discriminatory practices at the Sheriff’s Office.
(Doc. No. 86, at 39–40.) For the same reasons discussed
supra
, the March 21, 2021 Email does
not amount to any reasonable opposition to discriminatory practices. Again, the closest the March
21, 2021 Email comes to evincing opposition to a discriminatory practice is Brinson’s contention
that he was complaining to Fatheree that race was “off the table” and he was prohibited from
addressing racial inequalities within the Sheriff’s Offiсe. (Doc. No. 86, at 21.) But, as discussed,
at most, Brinson was opposing resistance to his specific plan for addressing racial inequalities at
the Sheriff’s Office, which is analogous to
Holden v. Owens-Illinois, Inc.
,
Even if Brinson’s report to Fatheree about Outley’s experience amounted to protected conduct under Title VII, [15] Brinson has not pointed to any evidence that suggests that there was a causal connection between his report and his termination. As discussed above, Brinson concedes that, after he reported the potential discrimination to Fatheree, he did not know “where [it] went[,]” suggesting the issue never came up again. (Doc. No. 66-1, at 414:1–3.) Thus, besides Brinson’s own speculation, there is no evidence that Brinson’s report of potential discrimination against Outley played any role in Fatheree’s decision to terminate his employment. Jennings , 630 F. App’x at 555.
For these reasons, Brinson has failed to make a prima facie case of retaliation under Title VII or Ohio law and Fatheree and Summit County are entitled to an entry of judgment in their favor on these claims. But even if Brinson had established prime facie claims of retaliation under Title VII and Ohio law, as discussed at length above, Fatheree and Summit County have provided a legitimate, non-discriminatory reason for Brinson’s termination and Brinson has not produced any evidence that could establish pretext.
Thus, for all the aforementioned reasons, Fatheree and Summit County are entitled to judgment as a matter of law on Brinson’s claims of retaliation under Title VII and Ohio law and these claims are dismissed.
6. Brinson’s Claim Against Fatheree, Czetli, and Summit County for Aiding-and- Abetting Discrimination in Violation of Ohio Law Fails.
Ohio law makes it unlawful “[f]or any person to aid, abet, incite, compel, or coerce the
doing of any act declared by this section to be an unlawful discriminatory practice[.]” Ohio Rev.
Code § 4112.02(J). Where, as here, a court finds that a plaintiff’s underlying Section 4112.02
claims of discrimination, retaliation, and hostile work environment fail as a matter of law, “the
court must also necessarily grant summary judgment on the claim of aiding and abetting those
claims.”
Weinrauch v. Sherwin-Williams Co.
, No. 1:18-cv-1696,
7. Brinson Cannot Establish That Fatheree Improperly Interfered with Any Business Relationship in Violation of Ohio Law.
Brinson unsuccessfully attempts to establish that Fatheree interfered with his business
relationships because his reputation has been harmed by his termination and comments Fatheree
made in the aftermath. To state a claim of tortious interference with a business relationship under
Ohio law, Brinson must plead (1) a business relationship; (2) the wrongdoer’s knowledge of the
relationship; (3) the wrongdoer’s intentional and improper action taken to prevent a contract
formation, procure a contractual breach, or terminate a business relationship; (4) a lack of
privilege; and (5) resulting damages.
Barrio Bros., LLC v. Revolucion, LLC
, No. 1:18-cv-2052,
When asked what business relationships Fatheree thwarted, Brinson testified that some people have stopped returning his calls. [16] (Doc. No. 66-1, at 431:14–433:7.) But Brinson admitted that none of those people ever employed him, and he did not testify that they ever would. ( See Doc. No. 66-1, at 439:12–16.) Instead, Brinson testified that, in his view, Fatheree’s statements interfered with prospective business opportunities that he might secure through these community contacts, similarly to how he was hired as Director of Diversity. ( See id. ) But since his termination from the Sheriff’s Office in 2021, it is undisputed that Brinson was able to secure two different income-generating positiоns—both of which he quit. (Doc. No. 66-1, at 442:2–12, 464:23–465:2.) Viewing the evidence in the light most favorable to Brinson, it, at most, suggests that Brinson might have suffered reputational harm with community relationships—not any inference with a business relationship. [17]
At this stage of the proceedings, Brinson’s claim cannot stand on conclusory allegations
that various members of the community, who he admittedly never sought to engage in a business
relationship, have stopped communicating with him.
Gooden v. City of Memphis Police Dep’t
, 67
F. App’x 893, 895 (6th Cir. 2003) (“Conclusory allegations, speculation, and unsubstantiated
assertions are not evidence, and are not enough to defeat a well-supported motion for summary
judgment.” (citing, among authority,
Lujan
, 497 U.S. at 888)). Brinson must identify
some
business relationship with which Fatheree improperly interfered for his claim to advance. He has
not.
See Marinelli v. Prete
, No. E-09-022,
But even if Brinson had established some business relationship with which Fatheree
interfered, there is no evidence that any statement Fatheree made about Brinson amounts to
improper interference. A defendant is only liable for tortious interference if the interference was
improper.
See Fred Siegel Co., L.P.A. v. Arter & Hadden
,
Brinson points only to Fatheree’s statements in a newspaper article and communications with pastors as “evidence” of improper interference. (Doc. No. 86, at 43.) But the record clearly establishes that Fatheree had a good faith opinion that Brinson was not the “right person” for the job and, in her view, lacked professionalism based on how she perceived certain comments Brinson made about police officers. [18] It is immaterial whether Brinson meant what Fatheree interpreted because Brinson does not deny having the at-issue conversation with Fatheree. Fatheree has clearly testified that she interpreted his comments to be unprofessional and troubling, and Brinson has not presented any evidence that suggests otherwise. ( See, e.g. , Doc. No. 69-1, at 423:16–20.)
For the aforementioned reasons, Fatheree is entitled to judgement as a matter of law on Brinson’s claim of tortious interference with a business relationship and this claim is dismissed.
8. Brinson Has Not Identified Any Employee Who Caused Him Foreseeable Injury Because of Summit County’s Negligent Training or Supervision in Violation of Ohio Law.
Brinson cannot advance his claims of negligent training and supervision against Summit
County because he has not identified a single employee who foreseeably caused him injury. To
advance his claims of negligent training and negligent supervision under Ohio law, Brinson must
show: (1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the
employer’s actual or constructive knowledge of such incompetence; (4) the employer’s act or
omission causing plaintiff’s injuries; and (5) the employer’s negligence in training or supervising
the employee as the proximate cause of plaintiff’s injuries.
See, e.g.
,
Browning v. Ohio State Hwy.
Patrol
,
It is not clear exactly what injury Brinson claims he suffered because of any negligent training or negligent supervision. In his opposition brief, Brinson contends that he was “subjected to unlawful bias, harassment, discrimination and retaliation by Fatheree, Czetli, Smith and others[.]” (Doc. No. 86, at 46.) To the extent Brinson claims he was retaliated against because of his race, this Court has found no evidence of that in the record. Further, there is no evidence that Fatheree, Czetli or unnamed “others” subjected Brinson to any bias, harassment, or discrimination because of his race. Brinson also contends that he suffered some injury because no one was trained to respond to his “complaints” of unlawful harassment and discrimination, which allowed harassment and discrimination to continue against him ( id. ), but, as this Court found and discussed at length supra , there wеre no complaints for any employee to respond to because Brinson never raised a complaint of unlawful harassment or discrimination directed at him. [19]
As such, the only Summit County employee who Brinson identified and who potentially “subjected” Brinson to “unlawful bias, harassment [or] discrimination” was Chief Smith. Even if Chief Smith’s comments were racially motivated attacks, rather than comments motivated by a desire to engage in a conversation with the Director of Diversity, Brinson cannot establish that Summit County’s failure to train or supervise Chief Smith was the proximate cause of any injury [20] because Brinson has failed to establish that Summit County had any reason to foresee that Chief Smith would engage in racially motivated attacks. Browning , 786 N.E.2d at 103 (“The legal viability of [plaintiff’s] claims of negligent hiring and retention [are] dependent upon a showing that [the employee’s] conduct was foreseeable.”).
To advance his claims, Brinson relies on generalizations about the Sheriff’s Office’s anti-
discrimination and anti-harassment training. Specifically, Brinson contends that (1) Summit
County knew its employees were inadequately trained concerning anti-discrimination and anti-
harassment laws and procedures, (2) but Summit County failed to train employees about the same,
and, thus, (3) Summit County should have foreseen that its employees would harass or discriminate
against others. (Doc. No. 86, at 44.) Such generalized assertions are insufficient to advance
Brinson’s claims of negligent training or negligent supervision because he must show that Summit
County had reаson to know that Chief Smith specifically had a propensity to engage in
discriminatory conduct.
Herndon v. Torres
,
Where, as here, “a plaintiff fails to show through evidence that the [offending] employee
hаd any criminal or tortuous propensities, summary judgment in the employer’s favor on negligent
hiring and [supervision] is proper.”
Hout v. City of Mansfield
,
Plaintiff also named “John Does 1–10” as defendants in this case. “The Sixth Circuit has
held that a civil action against Doe defendants never commences where they were not identified
by their real names or served with process.”
See Wheeler v. Billingslea
, No. 18-cv-10346, 2019
WL 2524081, at *4 (E.D. Mich. June 19, 2019) (citing
Cox v. Treadway
,
V. CONCLUSION
Throughout the pendency of this matter, Brinson’s claims have been somewhat of a moving target. What is clear is that Brinson believes he was subjected to race-based discrimination, harassment, and retaliation. But to survive this motion for summary judgment, Brinson had to produce some evidence , beyond his subjective beliefs and bald conclusions, that he faced discrimination, harassment, and retaliation because of his race . This, Brinson failed to do. All the well-pleaded evidence before the Court suggests that Brinson was simply not the “right person” for the Director of Diversity position. Speculation and conclusions by Brinson that he faced “pushback” or “targeting” because his job and job duties related to race are not proper bases for his claims. This Court is unaware of any court that has found that a Director of Diversity is a protected class, and this Court denies Brinson’s implicit invitation to be the first.
For all the aforementioned reasons, Brinson’s claims against all defendants are dismissed and this case is closed.
IT IS SO ORDERED .
Dated: June 20, 2023
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE CHIEF JUDGE
Notes
[1] All page number references herein are to the consecutive page numbers applied to each individual document by the electronic filing system.
[2] Brinson alleged claims of (1) discrimination, retaliation, and hostile work environment in violation of 42 U.S.C. § 1981; (2) discrimination, retaliation and hostile work environment in violation of 42 U.S.C. § 1983; (3) discrimination, retaliation and hostile work environment in violation of 42 U.S.C. § 2000e; (4) race discrimination in violation of Ohio Rev. Code § 4112.02(A); (5) retaliation in violation of Ohio Rev. Code § 4112.02(1); (6) hostile work environment in violation of Ohio Rev. Code § 4112.02(A); (7) aiding and abetting discrimination in violation of Ohio Rev. Code § 4112.02(J); (8) tortious interference with business relationships; (9) intentional infliction of emotional distress; (10) negligent retention, training and supervision under Ohio law; (11) fraudulent inducement/fraud; and (12)
[3] In an apparent attempt to save his claim, Brinson suggests Fatheree fired him because her staff would never accept an African American man , and even misleadingly cites this Court’s own decision in the process. (Doc. No. 86, at 28 (suggesting incorrectly that the Court found Brinson would be able to satisfy the elements of his claim by showing Fatheree recognized her staff had an intolerance for Brinson because he was an “African-American[sic] man ” (emphasis added)).) Brinson has not alleged any claims of gender-based discrimination in this case and so his identity as a man is irrelevant to the Court’s analysis.
[4] Brinson seems to suggest the fact that he had to apply and interview for the Director of Diversity position, instead of being given the position outright, amounts to race discrimination. ( See Doc. No. 86, at 27.) But Brinson has not cited any case law that suggests making an applicant interview for a job, which they are ultimately offered, amounts to discrimination and this Court declines to hold that it does here. Cf. Hunter ,565 F.3d at 994 (finding discrimination based on a discrete act is a discriminatory action based on the plaintiff’s race, including “termination, failure to promote, denial of transfer, or refusal to hire” (citing Morgan ,536 U.S. at 114 (internal quotation marks omitted))). Brinson also takes issue with Fatheree’s statement that she had “one shot” to get the Director of Diversity position right and claims Fatheree held him to a higher standard because of this. Even if this were true, Brinson has not pointed to any evidence that suggests these higher standards were because of his race rather than because of the importance of the position he held. As Brinson evinces through his own pleadings, Fatheree looked to tackle long-held perceptions that the Summit County Sheriff’s Office was a “good ole boys network,” which was “resistant” to change, especially changes related to increased diversity and inclusion efforts. ( See Doc. No. 86, at 27.) It follows that Fatheree would want to ensure she had the right person to help her lead these efforts.
[5] Rather than point to any specific record citations to support his contention that these alleged “reports” can establish
his retaliation claim, Brinson cites, as he does throughout his opposition brief, to a series of earlier footnotes filled
with vague citations. The Court shares defendants’ frustration with this methodology and finds that, in employing this
methodology, Brinson has failed to satisfy his obligation to cite “specific portions of the record upon which it seeks
to rely to create a genuine issue of material fact.”
Fulson
,
[6] Brinson contends in his opposition brief that “[d]efendants’ claim that Mr. Brinson’s conduct cannot be considered
constitutionally protected speech because it was part of his job duties has no merit. Defendants have consistently
insisted that Mr. Brinson was never responsible for investigating and reporting racial biases and other inequalities.”
(Doc. No. 86, at 30 (emphasis omitted).) Brinson, however, does not cite
any
evidence supporting his contention that
defendants have “consistently insisted that” Brinson was not responsible for investigating and reporting racial
inequalities.
Fulson
,
[7] Again failing to provide pinpoint citations to the record, Brinson cites to “fn. 53,” which in turn contains several citations to several different deposition testimonies and exhibits, which all together cover a range of topics.
[8] Brinson does not contend that the Black Male Summit Email itself was protected speech. Nor does Brinson contend
that Fatheree retaliated against him for sending the Black Male Summit Email. But to be sure, the Court finds that the
Black Male Summit Email itself was not protected speech because it was made pursuant to Brinson’s role as Director
of Diversity, encouraging deputies’ attendance at a public forum. While the public forum might address a matter of
public concern, the email encouraging deputies’ attendance is an entirely internal matter.
Doherty v. City of Maryville
,
[9] As discussed infra , Brinson’s claims of race discrimination and retaliation in violation of Title VII are also dismissed.
[10] Brinson has alleged claims of hostile work environment in violation of the Equal Protection Clause, Title VII, and
Ohio law. All three claims are analyzed using the same framework.
Boxill v. O’Grady
,
[11] Courts use this burden-shifting framework set out in
McDonnell Douglas Corp. v. Green
,
[12] The Court acknowledges that Fatheree stated other reasons supporting her ultimate conclusion that Brinson was not the right person for the job, including her belief that Brinson thought all police officers are racist based on a comment he made. (Doc. No. 69-1, at 416:11–417:10, 419:1–10; 462:9–11.) Brinson testified that he did not say, or intend to say, that all police officers are racist. (Doc. No. 66-1, at 347:21–348:25.) It is immaterial whether Brinson made this statement because, as discussed above, Summit County has provided a sufficient non-discriminatory reason for
[13] Again, Ohio courts have held that “federal case law interpreting Title VII . . . is generally applicable to cаses
involving alleged violations of [Revised Code] Chapter 4112.”
Plumbers & Steamfitters Joint Apprenticeship Comm
,
[14] Further, as the Court found supra , Brinson has not pointed to any evidence, besides his own conclusions, that Fatheree told him he could not address racial inequalities within the Sheriff’s Office.
[15] There is a question as to whether Brinson had a reasonable, good faith belief that Outley was being discriminated
against on the basis of her race because when asked whether Outley told him she felt discrimination against because
of her race, Brinson testified only that he could not recall. (Doc. No. 66-1, at 550:2–5.)
See Jackson
,
[16] Brinson testified more generally that some people, like Jeff Fusco and Pastor Pounds, have stopped proactively reaching out to him, but then admitted that he has not reached out to them either. (Doc. No. 66-1, at 435:3–436:1.)
[17] Allegations of reputational harm to community relationships are more properly adjudicated through claims of
defamation, which Brinson did not bring in this suit.
See Disciplinary Couns. v. Gardner
,
[18] Brinson cites to Fatheree’s testimony that she knew her statements to the newspaper were not “nice” but that does nothing to suggest Fatheree knowingly made a false statement. (Doc. No. 86, at 43 (citing Doc. No. 69-1, at 421:11– 18).)
[19] To the extent Brinson is alleging that Summit County failed to address complaints of harassment and/or discrimination directed against others, Brinson does not contend that the same wrongdoers harassed or discriminated against him. Further, Brinson lacks standing to bring a claim of negligent training and/or supervision on behalf of others.
[20] Again, it is not clear what injuries Brinson contends he suffered. He does not cite any injury when discussing his negligent training or supervision claim in his opposition brief. Elsewhere, he contends that “[t]he culmination of [d]efendants’ unlawful conduct has . . . caused Mr. Brinson to suffer from depression, anxiety, weight gain and more as a direct result of [d]efendants’ discrimination and retaliation.” (Doc. No. 86, at 26.) But Brinson actually declares that his depression and anxiety are because of the way he was “treated by Summit County, Sheriff Fatheree and Mr. Czetli.” (Doc. No. 86-6 ¶ 59.) Thus, it would appear Brinson does not contend that Chief Smith’s comments caused him any injury in fact.
[21] In his opposition brief, Brinson contends that Fatheree “knew that Smith often spreads discriminatory rhetoric, yet she did nothing about it.” (Doc. No. 86, at 18.) But Brinson cites no evidence that Fatheree knew Chief Smith had some history of “spread[ing] discriminatory rhetoric.” Brinson only cites to testimony concerning the one interaction Fatheree witnessed between Brinson and Chief Smith, which Brinson now contends was harassment/discrimination.