NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0680n.06
Filed: September 8, 2006
No. 05-3519
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CAROLINE WATSON, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT COURT
) FOR THE NORTHERN DISTRICT OF
CITY OF CLEVELAND, CLEVELAND ) OHIO
CIVIL SERVICE COMMISSION, JANE )
CAMPBELL, EDUARDO ROMERO, )
JONALYN KRUPKA )
)
Defendants-Appellees, )
Before: BOGGS, Chief Circuit Judge; GIBBONS and GRIFFIN, Circuit Judges.
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 Ohio Rev. Code § 4112, as well as a denial of a property right
guaranteed by the Fourteenth Amendment in violation of 42 U.S.C. § 1983. Watson also alleged civil
conspiracy; fraud; and negligent hiring, retention, and supervision in violation of state law. The
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district court granted summary judgment to the defendants on all of Watson’s claims, and she
appealed. She also appealed the district court’s denial of a motion to compel discovery. We affirm
the district court for the following reasons.
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
1
Appointment power is given to the mayor by the Cleveland City Charter. The Charter
permits the mayor to appoint heads of departments and commissions. These political appointments
are made outside the normal hiring process for the City, which is dictated by the CSC. Ordinarily,
the CSC compiles lists of employees who have taken the Civil Service exams required for specific
positions. These lists rank the employees by their scores on the exams. When there is a vacancy, the
CSC identifies the top three candidates on the list for interviews if a list exists for the open position.
If there is no list, Personnel selects interview candidates by reviewing the resumes of people who
have applied for City positions.
2
Watson describes Romero as “a Hispanic male” in her brief, but the appellees contend in
their brief that the term Hispanic does not accurately describe Romero’s race. The Appellee’s Brief
states that “Director Romero was of mixed race, because of his North and South American
indigenous Indian and Caucasian ancestry. He did not consider Hispanic a descriptive term of his
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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, Watson was absent from work, mourning the death of her
grandmother. Watson testified in her deposition that “[she] came back and asked people had
[Romero] met with them.” Watson testified that she expected a meeting between Romero and the
Personnel employees to have taken place because “[she] had never met a man to come in the office
and assume a position, a high-level position, and didn’t request to meet with the employees.”
According to Watson’s deposition, the response she received from “[e]veryone” was “no, he didn’t
meet--he’s sitting up in his office with the door closed, and the only persons that was running in
there are the white employees, and he won’t meet with people.” Watson testified in her deposition
that Romero “wouldn’t meet with a lot of the black employees. For instance, he wouldn’t meet with
me.” Romero, however, did meet with Watson when she requested it, and Watson acknowledged in
her deposition testimony that this meeting took place.
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 assertion that the Campbell
administration did not want to employ African-Americans; fifty-four percent of the new employees
race.” The record, however, contains no evidence of Romero’s ethnicity.
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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
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bucks , [and] got [sic] the big positions . . . . 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 McCafferty 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 Supervisor on February
11, 2002. Brown testified that his civil service job consisted of training staff members in technology,
3
Watson claims that the Civil Service Rules require the City to make the hiring process
competitive, which she interprets as advertising the jobs, posting vacancies, and actively seeking
candidates. The summary of the hiring process introduced as an exhibit at Watson’s deposition
indicates otherwise. According to a flow chart that depicts the City’s hiring procedure, job vacancies
do not have to be posted and open positions do not have to be advertised. For nonunion positions,
such as the ones Watson claims she was denied the opportunity to apply for, the City must consult
the Civil Service list if it exists. If no list exists, the City hires from the pool of applicants who have
submitted resumes.
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completing public information requests, preparing weekly reports, “help[ing] with contracts,”
assisting with budgeting, and attending cabinet and operational group meetings. Brown moved into
the office vacated by McCafferty. Three-to-four months after he began working for the City, Brown’s
title was changed to Administrative Assistant to reflect the greater responsibilities he had assumed.
Approximately six months after he began working for the City, Mayor Campbell appointed Brown
Secretary to the Director or Assistant Director of Personnel.
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.
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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 strategic 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 Director of Finance, gave four employees raises from funds freed up when an employee
retired. Genesis Brown received a $20,000 raise, which coincided with his promotion to Assistant
Director. Maria Claudio and Susan Rudman each received a $5,000 raise, and Linda Steffen received
a $10,000 raise. Romero told Watson he selected these employees for raises because they were (1)
long-term City employees; (2) vitally important to Personnel; or (3) both. Romero aimed to bring
their salaries in line with the pay they could receive in the private sector. When Watson heard about
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these raises, she emailed Romero to request a raise. She asked Romero to meet with her to discuss
giving her a merit increase, which she felt she deserved. Romero met with her on September 26,
2002, to explain why she did not receive a raise. He indicated that raises were given based on the
employees’ long-term role in Personnel. Watson inferred from this that Romero did not “see [her]
playing any role in the future of the department.” She emailed him after the meeting to clarify his
vision of her role in the department ; it is unclear whether Romero and Watson ever discussed the
Personnel raises again. Watson concluded that he gave the four employees raises “because they were
white.”
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
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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 compel was denied. Later, the
defendants moved for summary judgment, and the district court granted their motion. Watson timely
appealed both the summary judgment order and the denial of the motion to compel discovery.
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
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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 Mayor 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 Campbell’s deposition,
Watson appeals the district court’s grant of summary judgment to the defendants on all her claims.
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.” Fed. R. Civ. P.
56(c). Although all “inferences to be drawn from the underlying facts . . . must be viewed in the light
most favorable to the party opposing the motion,” United States v. Diebold, Inc., 369 U.S. 654, 655
(1962), summary judgment must be entered against the opposing party if it “fails to make a showing
sufficient to establish the existence of an element essential to . . . [its] case, and on which . . . [it] will
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bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If “a
reasonable jury could return a verdict for the nonmoving party,” summary judgment must be denied.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). This court reviews the grant of summary
judgment de novo. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc).
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. 42 U.S.C.
§ 2000e-2(a)(1); Ohio Rev. Code § 4112.02. The standards for proving racial discrimination are the
same under Ohio and federal law because Ohio applies the body of federal case law interpreting Title
VII to determine if an allegedly discriminatory practice violates its anti-discrimination statute.
Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E.2d
128, 131 (Ohio 1981). To prove racial discrimination, a plaintiff may put forth direct evidence of
discrimination or present circumstantial evidence that permits an inference of discrimination. See
Johnson v. Kroger Co., 319 F.3d 858, 864–65 (6th Cir. 2003) (identifying methods of proof for a
Title VII claim premised on racial discrimination).
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
presumption by legitimating their actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
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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 adverse employment action. An adverse
employment action requires a materially adverse change in the terms and conditions of employment.
Allen v. Mich. Dep’t. of Corrections, 165 F.3d 405, 410 (6th Cir. 1999). A materially adverse
employment action
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.
Kocis 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 that 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
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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
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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 promotion; and (4) other
similarly qualified employees who were not members of the protected class were given promotions.
Allen, 165 F.3d at 410. Watson never applied for the CPM position. She merely inquired about it.
Moreover, Watson was not considered for and denied the CPM promotion because the position was
never filled. Although Watson asserts that Genesis Brown filled the position, she put forth no
evidentiary support for her theory.
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].”
42 U.S.C. § 2000e-(3)(a). A plaintiff, who has no direct evidence of retaliation, can establish
retaliation with circumstantial evidence under the McDonnell-Douglas framework. DiCarlo v.
Potter, 358 F.3d 408, 420 (6th Cir. 2004). The plaintiff must make out a prima facie case of
retaliation by establishing four elements: (1) the plaintiff engaged in an activity protected by Title
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VII; (2) the defendant knew that the plaintiff exercised his or her rights; (3) the defendant took an
employment action against the plaintiff that a reasonable employee would have found materially
adverse; and (4) there was a causal connection between the protected activity and the adverse
employment action. Burlington N. & Santa Fe Rwy. Co., v. White, __ U.S. __, 126 S. Ct. 2405, 2415
(2006); DiCarlo, 358 F.3d at 420.
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 excluded 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
4
Watson’s claim that she was constructively discharged cannot establish the adverse
employment action required for the prima facie case because Watson has not demonstrated that she
was constructively discharged. See supra Part I.C.
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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 were 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.
C. Constructive Discharge
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
employee 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, or 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.
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(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 transferred 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] remedies 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 intentional
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.
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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.
E. Civil Conspiracy
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) existence of an unlawful act independent from the actual
conspiracy.” Universal Coach, Inc. v. New York City Transit Auth., Inc., 629 N.E.2d 28, 33 (Ohio
Ct. App. 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, 113 F. App’x at 668, 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
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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., 570 N.E.2d 1076, 1083 (Ohio 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., 798
N.E.2d 1190, 1197 (Ohio Ct. App. 2003).
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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 was incompetent or that the City and Mayor
Campbell knew of his incompetence. More importantly, Watson has not identified any injury she
suffered at the hands of Romero or any harmful act that he committed. From her complaint it appears
that Watson is alleging that she was injured when Romero discriminated against her, but she never
substantiates this allegation. Moreover, she cannot substantiate this allegation because she failed to
prove that Romero discriminated against her when her Title VII and § 1983 claims required it. Apart
from her failure of proof on the other elements of her claim, Watson’s negligent hiring, retention,
and supervision claim cannot survive summary judgment because she has not put forth evidence of
harmful discrimination by Romero.
VI.
For the foregoing reasons, we affirm the district court.
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Watson v. City of Cleveland
Court: Court of Appeals for the Sixth Circuit
Date filed: 2006-09-08
Citations: 202 F. App'x 844
Copy CitationsCombined Opinion