RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Gragg v. Somerset No. 02-6387
ELECTRONIC CITATION: 2004 FED App. 0190P (6th Cir.) Technical College, et al.
File Name: 04a0190p.06
_________________
UNITED STATES COURT OF APPEALS COUNSEL
FOR THE SIXTH CIRCUIT ARGUED: Winter R. Huff, LAW OFFICES OF JOHN G.
_________________ PRATHER, Somerset, Kentucky, for Appellant. D. Brent
Irvin, OFFICE OF THE ATTORNEY GENERAL, Frankfort,
SHARON L. GRAGG, X Kentucky, for Appellees. ON BRIEF: Winter R. Huff,
Plaintiff-Appellant,- LAW OFFICES OF JOHN G. PRATHER, Somerset,
- Kentucky, for Appellant. D. Brent Irvin, OFFICE OF THE
- No. 02-6387 ATTORNEY GENERAL, Frankfort, Kentucky, for
v. - Appellees.
>
,
SOMERSET TECHNICAL _________________
-
COLLEGE , et al., - OPINION
Defendants-Appellees. N _________________
Appeal from the United States District Court BOYCE F. MARTIN, JR., Circuit Judge. Sharon L. Gragg
for the Eastern District of Kentucky at London. appeals the district court’s adverse award of summary
No. 97-00457—Karen K. Caldwell, District Judge. judgment on numerous claims arising from her layoff from
the Kentucky Workforce Development Cabinet. We
Argued: March 9, 2004 AFFIRM.
Decided and Filed: June 22, 2004 I. FACTUAL AND PROCEDURAL BACKGROUND
Before: MARTIN and CLAY, Circuit Judges; MILLS, Prior to her October 1996 layoff from the Kentucky
District Judge.* Workforce Development Cabinet’s Department of Technical
Education at the age of fifty-five, Gragg had worked as a
regional educational consultant assigned specifically to the
Kentucky-Tech Somerset campus. Gragg’s duties in that
capacity included performing a comprehensive study of the
Kentucky-Tech Somerset school every five years,
coordinating the school’s certified nurse aide program,
scheduling nurse aide classes and administering tests. Dr.
Carol Ann VanHook was Gragg’s immediate supervisor; Dr.
*
Ann W. Cline, the Director of the southern region of the
The Hon orable R ichard M ills, United States District Judge for the Kentucky-Tech schools, was VanHook’s immediate
Central District of Illinois, sitting by designation.
1
No. 02-6387 Gragg v. Somerset 3 4 Gragg v. Somerset No. 02-6387
Technical College, et al. Technical College, et al.
supervisor; William Huston was the Commissioner of the appeal for lack of jurisdiction. The Kentucky Court of
Department; and Delmus Murrell was the Deputy Appeals upheld that dismissal.
Commissioner of the Department, as well as Secretary of the
Board for Adult and Technical Education. Gragg next sought and obtained from the Equal
Employment Opportunity Commission a right to sue letter,
In early 1996, the Kentucky General Assembly reduced the and she proceeded to file a complaint in federal district court
Department’s authorized full-time workforce, thereby against Somerset Technical College, Cline, VanHook,
necessitating the elimination of a number of positions. Huston, Murrell and other defendants. The crux of Gragg’s
Huston circulated memoranda to certain high-level complaint, which asserted numerous federal and state claims,
administrators in April, asking for assistance in determining is that her position was chosen for abolition because of her
which positions should be eliminated in order to comply with age and gender, and in retaliation for her criticism of the
the legislatively-mandated workforce reduction. According school and the defendants. Gragg’s retaliation claims are
to Huston, this determination was to be made with based upon the following four allegations of speech:
consideration of the following factors: (1) “Savings by (1) Gragg criticized Somerset’s accreditation process,
restructuring;” (2) “Program Assessment – Progress made including VanHook’s conduct in connection with the process;
during last 12 months;” (3) “Analyze staffing patterns in (2) Gragg advised an employee funded under the federal Job
Frankfort, Regional Office and School levels;” and (4) “Can Training Partnership Act that she should file a complaint
necessary functions be combined.” against VanHook for allegedly misusing federal funds by
assigning a secretary paid out of those funds to a program not
Based in part on Cline’s recommendation, Huston covered by the federal monies; (3) after Gragg’s pre-
determined that Gragg’s position, among others, should be termination hearing, her attorney sent a letter to the Cabinet’s
abolished. The Department agreed, and terminated the general counsel criticizing the process and the criteria used in
regional educational consultant position that Gragg had held. determining which positions to terminate; and (4) Gragg
Gragg’s was one of eight positions that were ultimately complained to VanHook that she and other employees should
terminated; four of these positions had been held by women, receive overtime pay for their work on a particular project.
and four by men. Following her layoff, Gragg applied for
other positions within the Department. She was eventually On January 29, 2001, the district court granted summary
re-hired by the Kentucky-Tech school system and currently judgment in favor of the defendants on Gragg’s federal and
works at the “Northpoint (prison) school.” state age and gender discrimination claims, federal and state
due process claims, state whistleblower claim and
Gragg challenged her layoff by filing in state court an constitutional challenge to section 151B.086 of the Kentucky
administrative appeal under section 151B.086 of the Revised Statutes. The court also awarded summary judgment
Kentucky Revised Statutes, which permits an employee, in favor of the defendants on Gragg’s speech retaliation claim
within thirty days of the effective date of her layoff, to appeal concerning her request for overtime pay, holding that Gragg’s
the layoff on the ground that applicable statutory procedures speech was not constitutionally protected. The defendants’
were not followed. The trial court found that Gragg’s appeal summary judgment motion was denied, however, as to the
was untimely filed, however, and accordingly dismissed the other three speech retaliation claims, and the defendants filed
an interlocutory appeal to this Court challenging that ruling.
No. 02-6387 Gragg v. Somerset 5 6 Gragg v. Somerset No. 02-6387
Technical College, et al. Technical College, et al.
On interlocutory appeal, this Court held that the speech community....’ The inquiry is made based on by ‘the
alleged in those three claims was not constitutionally content, form, and context of a given statement, as
protected and, accordingly, ordered that summary judgment revealed by the whole record.’ Speech does not
be entered for the defendants on those claims. Gragg v. generally touch on a matter of public concern, as that
Kentucky Cabinet for Workforce Dev., 289 F.3d 958, 967 (6th requirement has been interpreted, where its aim is to air
Cir. 2002). On remand, the district court entered an order, or remedy grievances of a purely personal nature.
without opinion, dismissing Gragg’s complaint in its entirety.
This appeal followed. Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d
1220, 1226 (6th Cir. 1997) (citations omitted). As the district
II. ANALYSIS court recognized, Gragg’s motivation in requesting overtime
pay was to ensure that she received compensation for
A. Speech Retaliation Claims additional work; thus, her aim was “to air or remedy
grievances of a purely personal nature.” Id. In our view, the
We note at the outset that Gragg has devoted considerable “content, form, and context” of Gragg’s statement compel the
argument to challenging this Court’s ruling on interlocutory conclusion that it was not a matter of public concern and,
appeal concerning the three speech retaliation claims. That thus, was not constitutionally protected. We therefore hold
ruling, however, constitutes the law of the case. United States that the district court properly awarded summary judgment in
v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (explaining favor of the defendants on this claim.
that findings made at one point in a litigation become the law
of the case for subsequent stages of the same litigation). Our B. Age and Gender Discrimination Claims
power “to reach a result inconsistent with a prior decision
reached in the same case ‘is to be exercised very sparingly, Gragg next argues that the district court erred in dismissing
and only under extraordinary conditions.’” In re Kenneth her age and gender discrimination claims under the Kentucky
Allen Knight Trust, 303 F.3d 671, 677 (6th Cir. 2002) Civil Rights Act, as well as her identical gender
(quoting Gen. Am. Life Ins. Co. v. Anderson, 156 F.2d 615, discrimination claim under Title VII. Generally, in order to
619 (6th Cir. 1946)). Because this case involves no such establish a prima facie case of discrimination under Title VII
“extraordinary conditions,” id., we decline to disturb this or the Kentucky Civil Rights Act,1 a plaintiff must comply
Court’s prior ruling. with the requirements set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See also Mitchell v. Toledo
We must address, however, the one speech retaliation claim Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992). The analysis
that was not at issue in the interlocutory appeal – i.e., the differs, however, in cases, such as this one, that involve a
claim based upon Gragg’s alleged request for overtime pay. “reduction in force.” Barnes v. GenCorp Inc., 896 F.2d 1457,
We hold that this request does not constitute protected speech
because it is not a matter of public concern.
1
[A] particular expression addresses a matter of public The Kentucky C ivil Rights A ct’s discrimination provisions “track[]
concern where it can ‘be fairly considered as relating to federal law and should be interpreted co nsonant with federal
any matter of political, social, or other concern to the interpretation.” Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814
(Ky. 1 992 ).
No. 02-6387 Gragg v. Somerset 7 8 Gragg v. Somerset No. 02-6387
Technical College, et al. Technical College, et al.
1465 (6th Cir. 1990). A prima facie case of discrimination in case of discrimination is established, “[t]he burden of
a reduction in force case requires proof that the plaintiff was producing evidence of ‘pretext’ essentially merges with the
part of a protected class, that she was qualified to perform the burden of persuasion, which always lies with the plaintiff.”
job and that she was discharged; in addition, the plaintiff must Wilkins v. Eaton Corp., 790 F.2d 515, 522 (6th Cir. 1986).
produce “additional direct, circumstantial, or statistical To meet that burden, Gragg would have to produce evidence
evidence tending to indicate that the employer singled out the that the decisionmakers’ explanations were false and that
plaintiff for discharge for impermissible reasons.” Id. “The gender or age discrimination was the real reason for the
guiding principle [in a reduction in force case] is that the elimination of her position. See St. Mary’s Honor Center v.
evidence must be sufficiently probative to allow a factfinder Hicks, 509 U.S. 502, 507-08 (1993). In this case, the
to believe that the employer intentionally discriminated defendants have offered a legitimate reason for the abolition
against the plaintiff because of age” or gender. Id. at 1466. of Gragg’s position. The southern region of the state – in
It is undisputed that by virtue of her age and gender, Gragg which Gragg was employed – was the only region to have two
was a member of a protected class. It is also undisputed that regional educational consultant positions; the other regions
she was qualified to perform her former job of regional only had one each. Therefore, one of the southern region’s
educational consultant and that she was discharged. The issue regional educational consultant positions had to be abolished
is whether she has shown that the defendants impermissibly in order to achieve a uniform “staffing pattern” throughout the
singled her out for discharge because of her age or gender. state. Gragg has offered no persuasive evidence indicating
that this staffing pattern rationale was a pretext for
In an effort to prove that the defendants terminated her discrimination.
because of her age and gender, Gragg argues that younger
males received better treatment than she received. Our Gragg argues that the defendants have failed to explain why
thorough review of the facts and arguments in this case, they eliminated her position and not the other position, which
however, leads us to the firm conclusion that none of the was held by John Spoo. Spoo is not similarly situated to
younger males that Gragg has identified is “similarly-situated Gragg, however, because he worked for a different
in all respects” to her. Mitchell, 964 F.2d at 583 (emphasis supervisor, had more seniority in the position and worked in
added). In light of the significant differences that exist a more regional (as opposed to school-specific) capacity than
between Gragg and each of the identified younger males, Gragg. In any event, the mere fact that the defendants chose
Gragg cannot prove age or gender discrimination by Gragg’s position over Spoo’s, without more, simply does not
comparing her treatment to theirs. Nor has she offered any suggest – let alone prove – any impermissible discrimination.
other direct, circumstantial or statistical evidence indicating
that her position was terminated because of her age or gender. Therefore, the district court properly granted summary
Indeed, as the district court noted, the same number of men judgment in favor of the defendants on Gragg’s age and
and women were laid off during the reduction in force. gender discrimination claims.
Moreover, even assuming that Gragg had established a C. Due Process Claims
prima facie case of age or gender discrimination, she would
be unable to prove that the defendants’ reason for abolishing Gragg also contends that the district court erred in
her position was a pretext for discrimination. If a prima facie dismissing her federal and state due process claims against
No. 02-6387 Gragg v. Somerset 9 10 Gragg v. Somerset No. 02-6387
Technical College, et al. Technical College, et al.
defendant Murrell. The essence of these claims is that positions. It is the cause element which confers upon the
Murrell’s participation in various stages of the layoff process property right the imprimatur of constitutionality.
violated Gragg’s due process right to an impartial Although plaintiffs may have had an expectation of
decisionmaker. These claims fail, however, because Gragg continued employment it was a unilateral one and does
has no protectible property interest in her continued not rise to the level of a constitutionally protected right.
employment.
Riggs v. Commonwealth, 734 F.2d 262, 265 (6th Cir. 1984).
Gragg’s argument is based upon the assumption that a
property interest is created by virtue of the fact that she was Like the layoff statute in Riggs, section 151B.085 contains
an employee with “continuing status.” This assumption is no “cause” requirement where a continuing employee is laid
false. Chapter 151B of the Kentucky Revised Statutes sets off because her position is abolished. Gragg clearly had a
forth procedures that must be followed in connection with the right to insist that the Department follow the procedures set
layoff of an employee with continuing status. Section forth in section 151B.085, see KRS 151B.086; Koo v. Comm.,
151B.085, entitled “Procedures for layoffs,” articulates the Dep’t for Adult and Tech. Educ., 919 S.W.2d 531 (Ky. 1995),
procedures that must be followed in the event of “[a] layoff of but she had no protectible property interest in her continued
an employee with continuing status in the Department of employment. For that reason, the district court properly
Technical Education due to the abolition of a position . . . .” awarded summary judgment in favor of the defendants on
Section 151B.086, entitled “Appeal to board of layoff by Gragg’s due process claims.2
continuing status employee,” provides that:
D. Claim Under the Kentucky Constitution
(1) A continuing status employee may appeal his layoff
on the grounds that the procedures in KRS 151B.085 Gragg’s final claim alleges that the defendants engaged in
were not followed. arbitrary and capricious conduct in violation of section two of
the Kentucky Constitution, which provides that “[a]bsolute
(2) An appeal by a continuing status employee shall be and arbitrary power over the lives, liberty, and property of
filed with the board within thirty (30) days of the freemen exist nowhere in the republic, not even in the largest
effective date of the layoff. . . . majority.” In light of our conclusion that all other claims in
this case were properly dismissed, the district court was
In a case involving a statute similar to the one at issue here, entitled, as Gragg acknowledges, to dismiss this state law
we concluded that the plaintiff employees, who had been laid claim as well.
off, had no protectible property interest in their continued
employment. As we explained:
Clearly there is a distinction between a discharge and a 2
Gra gg’s lack of a protectible property interest in her continued
layoff. Kentucky’s statute provides that a discharge employment also defeats her claim challenging the constitutionality of
cannot take place absent cause. The Kentucky statute section 151B.086 of the Kentucky Revised Statutes, which was based
governing layoffs contains no requirement to show upon the argument that the section unconstitutionally denies substantive
cause. It permits layoffs due to . . . abolishment of due process to employees with a property interest in continued
emp loyment.
No. 02-6387 Gragg v. Somerset 11
Technical College, et al.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.