Cаroline WATSON, Plaintiff-Appellant, v. CITY OF CLEVELAND, Cleveland Civil Service Commission, Jane Campbell, Eduardo Romero, Jonalyn Krupka Defendants-Appellees.
No. 05-3519.
United States Court of Appeals, Sixth Circuit.
Sept. 8, 2006.
202 Fed. Appx. 844
JULIA SMITH GIBBONS, Circuit Judge.
Caroline Watson (“Watson“) sued the City of Cleveland (“the City“); its mayor, Jane Campbell (“Campbell“); its former Director of Personnel, Eduardo Romero (“Romero“); its Civil Service Commission (“CSC“); and the Secretary to the CSC, Jonalyn Krupka (“Krupka“), in the United States District Court for the Northern District of Ohio. Watson alleged racial discrimination, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964 and
I.
Watson, an African-American female, began working for the City in 1998. The City‘s former mayor, Michael White—who was also African-American—hired Watson as a Project Coordinator in the City‘s Department of Personnel (“Personnel“) and charged her with various labor relations responsibilities. She functioned as an Equal Employment Opportunity (“EEO“) Officer and later as the EEO Manager. Her primary job responsibility was investigating charges of discrimination and harassment leveled against the City by its employees.
A change in mayoral administration took place in Cleveland in 2001. Campbell, who is Caucasian, took office as mayor in January 2002. Prior to Campbell‘s inauguration, the Director of Personnel (“Director“) during Mayor White‘s administration, Jeffrey K. Patterson, resigned. Accordingly, Mayor Campbell appointed a new Director.1 She selected Romero,2 who had been a District Director for the Ohio Bureau of Worker‘s Compensation. Romero‘s appointment and his actions as Director precipitated Watson‘s complaint.
When Romero started as Director, Wat
Nevertheless, Watson maintained in her deposition that Romero “didn‘t want anything to do with the black employees” because he and the Campbell administration “distrust[ed]” African-Americans because of their race and their perceived loyalty to the former mayor and wanted to “force them out.” Watson testified that in her opinion “basically all the blacks in Mike White‘s cabinet level were fired, and] Jane Campbell kept whites in Mike White‘s administration.”
Employment data amassed by the City contradicts Watson‘s assertiоn that the Campbell administration did not want to employ African-Americans; fifty-four percent of the new employees hired by the Campbell administration were African-American.
Despite the numbers, Watson claims that the Campbell administration discriminated and points to the experiences of African-American employees in Personnel as evidence. Watson testified that she believed that Patterson was fired as Director, even though she does not know that for sure. Watson said she “look[ed] at it” as if Patterson was fired by the Campbell administration because “he wasn‘t retained by Jane Campbell as she had done with other whites and Hispanics, so [she] believe[d] he was fired.” She acknowledged in her deposition that this was merely her belief and that she was “not sure” of the circumstances surrounding Patterson‘s resignation as Director. Watson also asserted in her deposition that Betsey McCafferty, the Chief of Personnel Management and the second-highest ranking employee in Personnel, was “forced out by the Campbell administration[, and] [e]veryone knows that.” She claims that McCafferty left the City because she was “frazzled,” treated poorly, and falsely accused of bringing a gun to work. The connection between McCafferty‘s leaving Personnel and the racial discrimination alleged by Watson is unclear, however, because Watson conceded in her deposition that, even though “[m]ost people thought [McCafferty] acted black, she was probably white.” Further, Watson claimed in her deposition that Romero “took away job responsibilities” from African-American employees, Tony Washington and Hernando Harge. These employees participated in union negotiations during the White administration, but Romero shifted that responsibility to the Law Department. Watson also testified that Romero eliminated her job responsibilities by directing EEO investigations to the Law Department.
In addition to generally testifying that “Romero attempted to force out the black professional employees in the Department of Personnel and human resources” because they “got [sic] the big bucks, [and] got [sic] the big pоsitions . . . that [the Campbell administration] wanted” for white employees, Watson complained about four specific events in her complaint and deposition testimony. They are: (1) the failure to post vacancies and follow the Civil Service Rules; (2) Watson‘s exclusion from departmental and strategic planning meetings; (3) the raises given to some employees in Personnel; and (4) the City‘s response to her charges of discrimination against Romero.
Watson claims that she was denied the opportunity to apply for two vacant positions. The positions were Labor Relations Officer (“LRO“), which had been held by Hernando Harge until he resigned and Chief of Personnel Management (“CPM“), which had been held by McCаfferty until she resigned. Watson complains that Romero failed to post the vacancies on the City‘s job board and misled her about the availability of the CPM position. She further claims that Romero, with the help of Krupka, violated the Civil Service Rules3 with respect to hiring for these positions.
Watson inquired of Romero about the vacancy for CPM, and according to her deposition testimony, he indicated that the position was filled. Watson believes that the position was filled by Genesis Brown even though he never assumed the title. Brown, who is Caucasian and campaigned for Campbell, was hired into the newly created position of Data Processing Super
Watson contends in her brief that Brown was the de facto CPM when he filled each of these positions. She claims he was not given that title because he lacked the civil service qualifications for the job. Romero testified, however, that CPM was never filled and that Data Processing Supervisor was an entirely new position with different responsibilities than the CPM position. Additionally, the Cleveland City Charter provides for the Assistant Director position, which is politically appointed and higher in the organizational chart than CPM, but it had not been filled in the White administration.
Watson never applied for the LRO position but testified that she would have if the vacancy had been posted and applications solicited. Instead of posting the vacancy and soliciting applications, as Watson claims the Civil Service Rules require, Romero hired Madeline Corchado. Corchado, whom Romero testified he assumed was Hispanic, worked in the Labor Relations group for the City‘s Utilities Department and had expressed an interest in transferring to Labor Relations in Personnel. When the LRO position became vacant, Romero asked Corchado if she was interested in it. She was, and Romero hired her. Watson claims Corchado‘s hiring denied Watson her right to apply for the LRO job.
In addition to claiming that she was denied her right to apply for other positions within Personnel, Watson claims that Romero excluded her from meetings. Watson emailed Romero on May 29, 2002, complaining that he had not invited her to Personnel‘s weekly management meetings and strategic planning sessions. She identified employees whom she learned had participated in the strategic planning sessions—Tom Antonello, Genesis Brown, and Sue Rudman. Incidentally, none of these employees were African-American. Romero responded to her email on May 31, 2002. He told her that his failure to include her in the weekly management meetings was an oversight, which he had corrected. He also gave her a complete list of the employees who participated in the strategic planning sessions. Among them were Dennis Dove, Hernando Harge, and Tony Washington, all of whom were African-American employees hired by the White administration. The email and the invitation to the weekly managers meetings did not appease Watson. In her deposition, she complained about not being invited to the stratеgic planning sessions and speculated that there were many other meetings to which she had not been invited.
Watson also claims that she was improperly denied a raise because Romero increased employees’ salaries in a discriminatory fashion. Romero, with the approval of Mayor Campbell and the City‘s Di
Finally, Watson complains about the City‘s response to her discrimination charges against Romero—a response she characterizes as retaliatory. Watson filed an EEO complaint against Romero after an incident in January 2003. Romero chastised Watson for requiring employees to submit their EEO complaints in writing and ordered her to begin accepting verbal complaints. Watson emailed Romero to explain that she encouraged written EEO complaints but did not require them. She also alleged that the Law Department had been taking away her job responsibilities by investigating EEO complaints and accused Romero of treating her in a discriminatory fashion. Watson met with Mayor Campbell on January 21, 2003, to complain about Romero but refused to discuss her problems because representatives of the Law Department were present. She believed their presence jeopardized her interests. Watson then filed a formal EEO complaint against Romero on March 10, 2003. The cluster-chief for the Personnel and Human Resources departments, Robert Baker, appointed an independent investigator to investigate Watson‘s allegations. Baker also removed Watson from two EEO investigations because of a conflict of interest. One of the EEO claims was a precursor to Watson‘s complaint, and the other EEO complaint was against the Law Department, which Watson believed operated contrary to her interests. Watson complained about her removal and described it as retaliatory. Baker emphasized that he removed her to appoint independent investigators, not to discipline her or criticize her work. He refused to meet with Watson to discuss the conflicts because she would not permit a member of the Law Department to be present. Watson continued to contest her removal from these investigations. She claims the City took away her primary job function, investigating EEO complaints, in retaliation for her complaint against Romero.
Watson resigned from the City in August 2003 because her job was causing her stress, which manifested itself in hair loss, weight loss, insomnia, and anxiety.
She filed suit on November 23, 2003, in the United States District Court for the Northern District of Ohio, naming the City, Mayor Campbell, Romero, the Secretary to the CSC, and the CSC as defendants. Watson asked to depose Mayor Campbell, and the defendants sought a protective order. Their protective order was granted, and Watson‘s motion to com
II.
Watson appeals the district court‘s denial of her motion to compel Mayor Campbell‘s deposition. On appeal, denials of motions to compel discovery are reviewed only for an abuse of discretion. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.1981). We conclude that the district court acted within its discretion to set the scope of discovery by refusing to force Mayor Campbell to submit to a deposition. We find no abuse of discretion because Watson fails to demonstrate why deposing Mayor Campbell is necessary to her case. Her case focuses on actions undertaken by various members of the Campbell administration and involves Mayоr Campbell only to the extent that the Mayor supervises city employees. Mayor Campbell has very little information related to Watson‘s claims and indeed none that is unavailable from another source. Watson claims that she needs to depose Mayor Campbell to learn the results of a probe Mayor Campbell launched to investigate Watson‘s discrimination claims. The results of the investigation, however, could be obtained through a form of discovery less burdensome to a city executive—namely, interrogatories and requests for production. Given that Watson can obtain the information she seeks through other forms of discovery, the district court did not abuse its discretion in denying her motion to compel Mayor Campbell‘s deposition.
III.
In addition to appealing the district court‘s refusal to compel Mayor Camp
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.”
On de novo review, we conclude that the district court properly granted the defendants’ motion for summary judgment. As discussed below, Watson failed to raise genuine issues of material fact, and the defendants are entitled to judgment as a matter of law.
A. Racial Discrimination
Ohio and federal anti-discrimination laws prohibit employers from discriminating on account of race in hiring as well as in setting the terms, conditions, and privileges of employment.
Watson attempts to prove her case solely with circumstantial evidence. Therefore, she must create a presumption of unlawful discrimination and challenge the defendants to rebut the presumptiоn by legitimating their actions. See Texas Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To create the presumption of discrimination, Watson must prove a prima facie case of employment discrimination by a preponderance of the evidence. Burdine, 450 U.S. at 252-53. She must establish that 1) she was a member of a protected class; 2) she was subject to an adverse employment action; 3) she was qualified for the job; and 4) for the same or similar conduct, she was treated differently from similarly situated non-minority employees. Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000).
Watson fails to establish her prima facie case of racial discrimination at step two. She has put forth no evidence that the defendants subjected her to an
must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.
Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir.1996), citing Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F.2d 132, 136 (7th Cir.1993). Watson has put forth no evidence that she was subjected to an adverse employment action under any of these factors. She remained EEO Manager until she chose to quit, and the defendants did not reduce her compensation or benefits or demote her. She claims thаt the defendants diminished her job responsibilities by removing her from EEO investigations and directing EEO complaints to the Law Department. The record, however, does not indicate that such an adverse employment action took place. Watson was removed only from two EEO investigations and then only to cure potential conflicts of interest. This was not a significant diminution in her job responsibilities because she remained responsible for investigating any new EEO complaints that were filed and completing any EEO investigations that were in progress.
Watson tries to prove that she was the victim of an adverse employment action by pointing to “other indices that [were] unique to the particular situation.” She complains that she did not receive a raise, was denied overtime, was prevented from applying for jobs, and generally was treated poorly because of her race. These could be indices of an adverse employment action had Watson raised a genuine issue of material fact about their occurrence. Instead, she relied on her deposition testimony, which merely reiterated her belief that she was a victim of racial discrimination. This deposition testimony is insufficient to raise a genuine issue of material fact because it contains no more than “[m]ere personal beliefs, conjecture and speculation.” Watson‘s personal belief that she and others suffered from adverse employment actions motivated by racial discrimination cannot help Watson avoid summary judgment. See Chappell v. GTE Prods. Corp., 803 F.2d 261, 268 (6th Cir. 1986) (holding that an inference of discrimination cannot be supported merely by the plaintiff‘s personal beliefs and speculation that the defendant impermissibly discriminated).
Watson also claims that the defendants subjected her to an adverse employment action by preventing her from applying for the CPM and LRO positions. This claim can be recast as a failure to promote claim with respect to the CPM position because that position is higher on the organizational chart than Watson‘s EEO Manager position. But Watson‘s claim that she was denied the right to apply for the LRO position cannot be treated as a failure to promote claim because her job of EEO Manager was better compensated than the LRO position.
Even treating Watson‘s claim that she could not apply for the CPM as a failure to promote, she cannot establish her prima facie case. For a failure to promote to constitute an adverse employment action, the plaintiff must be (1) a member of a protected class; (2) who applied for and was qualified for a promotion; (3) who was considered for and denied a
Because Watson was not considered for and denied a promotion, she cannot establish a prima facie case. Consequently, the defendants are entitled to summary judgment on her racial discrimination claim.
B. Retaliation
Title VII prohibits an employer from retaliating against an employee “because [the employee] has opposed [violations of Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].”
Once again, Watson cannot make out a prima facie case because she was not subjected to an adverse employment action. The Supreme Court recently defined what constitutes an adverse employment action in the retaliation context. Burlington N., 126 S.Ct. at 2414-16. In Burlington N., the Supreme Court held that an adverse employment action is any action, which might dissuade “a reasonable worker from making or supporting a charge of discrimination.” Id. at 2415 (internal quotations omitted). Whether an employment action is materially adverse to a reasonable employee depends on the context in which the action takes place. Under the circumstances in this case, Watson was not subjected to an adverse employment action. Watson lost responsibility for two EEO investigations, was еxcluded from some meetings, and did not receive a raise.4 In context, these actions would not dissuade a reasonable employee from invoking the protections of Title VII. A reasonable employee would not have found these actions materially adverse. A reasonable employee would have realized that Watson‘s responsibility for the two EEO investigations was taken away to prevent a conflict of interest and that Watson‘s exclusion from meetings was an oversight or reflected that the meetings were unrelated to Watson‘s work for the City. Likewise, a reasonable employee would have realized that Watson did not receive a raise because raises werе given in conjunction with promotions or in commemoration of long-term service to the City. Given that a reasonable employee would not have found the actions Watson complains of materially adverse, the defendants are entitled to summary judgment on her retaliation claim.
Under Title VII, an employee who resigns her post can recover from her former employer for constructive discharge under Title VII if the employer engaged in conduct that forced the employee to quit. “[T]he employer must deliberately create intolerable working conditions, as perceived by a reasonable person, with the intention of forcing the employee to quit and the emplоyee must actually quit. To determine if there is a constructive discharge, both the employer‘s intent and the employee‘s objective feelings must be examined.” Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.1999).
Our Circuit has adopted several factors to aid the determination of whether the employer created working conditions that a reasonable person would find intolerable. Logan v. Denny‘s Inc., 259 F.3d 558, 569 (6th Cir.2001). The presence of any combination of the following factors suggest constructive discharge, although whether working conditions are intolerable must be determined on a case-by-case basis: “(1) demotion; (2) salary reduction; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, оr humiliation by the employer calculated to encourage the employee to resign; or (7) offers of early retirement or continued employment on less favorable terms.” Id. (quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir.2000)).
Considering these factors and the severity of the conduct that they are designed to capture, we conclude that Watson was not constructively discharged. The only factor that Watson claims to have been involved is reduction in job responsibilities. As noted above, however, Watson‘s job responsibilities were not reduced. She remained responsible for new EEO complaints and existing investigations, except for the two that were transferred to independent investigators. Those investigations were not transferrеd to independent investigators to reduce Watson‘s job responsibilities or force her to resign. They were transferred to avoid potential conflicts of interest created by Watson‘s EEO complaint. The defendants neither created working conditions that were intolerable to a reasonable person nor intended to force Watson to resign. Accordingly, the defendants are entitled to summary judgment on her constructive discharge claim.
D. § 1983
Section 1983 “afford[s] reme-dies against discrimination in employment on the basis of race.” Daniels v. Bd. of Educ. of Ravenna City Sch. Dist., 805 F.2d 203, 207 (6th Cir.1986). These remedies are available only if the plaintiff proves intentional discrimination by a public employer that violates the Equal Protection Clause. Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir.1988); Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, 1011 (6th Cir.1987). Proving intеntional discrimination for an equal protection claim brought under § 1983 requires the plaintiff to make the same showing required to prove a violation of Title VII. Gutzwiller, 860 F.2d at 1325. Therefore, “the shifting evidentiary burdens set out in the leading Title VII cases of McDonnell Douglas and Burdine are applicable to § 1983 cases.” Kitchen, 825 F.2d at 1011.
The application of the McDonnell Douglas framework to Watson‘s § 1983 claim prevents her from proving that she was denied equal protection of the laws by the defendants. She can no better make the evidentiary showings required for McDonnell Douglas for the purposes of this claim than she could for her Title VII claim.
Ohio law provides for civil liability for perpetrators of civil conspiracies. “[A] civil conspiracy consists of the following: (1) a malicious combination; (2) of two or more persons; (3) injury to person or property; and (4) еxistence of an unlawful act independent from the actual conspiracy.” Universal Coach, Inc. v. New York City Transit Auth., Inc., 90 Ohio App.3d 284, 629 N.E.2d 28, 33 (1993).
Watson has not introduced evidence to support her claim of civil conspiracy. Beyond her testimony, which alone will not preclude summary judgment, Trs. of the Painters Union Deposit Fund v. Ybarra Construction Company, 113 Fed. Appx. 664, 668 (6th Cir.2004), she has no proof that the Civil Service Rules were violated or that they were violated by the defendants with malice. Watson also has not alleged any actual damages that she suffered. Without an injury to her person or property, she cannot make out a claim for civil conspiracy. Presumably, Watson is relying on what she cast as denial of her right to apply for the LRO and CPM positions as her injury. This, however, does not constitute an injury to property because Watson had no property interest in prospective civil service employment. See Howard v. City of Southfield, 97 F.3d 1452 (Table), 1996 WL 518062, at *6 (6th Cir.1996). (“[E]ven applicants who successfully completed all of the requirements and therefore remained on the eligibility list had no property right in the position since the number of qualified applicants significantly exceeded the number of available positions.“).
F. Fraud
Claims of common law fraud require proof of six elements in Ohio: (1) a representation or, where there is a duty to disclose, a concealment of fact; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) an injury proximately caused by the reliance. Russ v. TRW, Inc., 59 Ohio St.3d 42, 570 N.E.2d 1076, 1083 (1991).
Watson has brought forth insufficient evidence to support her claim of fraud. Specifically, she presented no evidence that the defendants had an intent to defraud beyond her conjecture that they were reserving posts for Caucasian supporters of Mayor Campbell. Moreover, Watson has not alleged any injuries that she sustained as a result of the alleged misrepresentations about hiring by the defendants. Without some evidence, which Watson has failed to amass, her fraud claim cannot survive summary judgment.
G. Negligent Hiring, Retention, and Supervision
Negligent hiring, retention, and supervision claims under Ohio law require proof of five elements: (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 employee‘s act or omission causing plaintiff‘s injuries; and (5) the employer‘s negligence in hiring or retaining the employee was the proximate cause of the plaintiff‘s injuries. Linder v. Am. Nat‘l Ins. Co., 155 Ohio App.3d 30, 798 N.E.2d 1190, 1197 (2003).
Watson‘s claim that Romero was negligently hired, retained, and supervised cannot survive summary judgment because Watson only has evidence to support the first element of the cause of action. She has no evidence to suggest that Romero
VI.
For the foregoing reasons, we affirm the district court.