Dokes v. Jefferson County

GWIN, District Judge.

While I concur with the decision to affirm in part, reverse in part, and remand, I do so for different reasons.

I. Retaliation Based on the EEOC Discrimination Charge

Dokes argues that Balakos and the Commissioners retaliated against her by prosecuting her after she filed an EEOC and OCRC complaint against them. The majority affirmed the district court’s decision to grant summary judgment for the defendants on this claim. I agree, but I do so for different reasons. Dokes also argues that Balakos refused to reinstate her in retaliation for filing the OCRC complaint. The majority holds that the district court erred in granting summary judgment on Dokes’ claim that the defendants retaliated against her by refusing to reinstate her after her acquittal. I disagree.

The majority concludes that Dokes’ prosecution could not have been retaliatory because the defendants turned over evidence to the prosecutor’s office several weeks before Dokes filed her claim. While I agree the district court did not err in dismissing the claim, I do so for different reasons.

I find that turning over evidence to a prosecutor is not an adverse employment action. The majority has not cited any authority to the contrary. First, the prosecutor and grand jury, not the defendants, brought charges against Dokes. Second, Ohio law obligated the defendants to report this information to the local authorities. See Ohio Rev.Gode Ann. § 2921.22(A) (No person knowing that a felony has been committed shall fail to report such information to the law enforcement authorities). Therefore, I find that Dokes’ claim fails to make a prima facie showing. The defendants’ reporting of suspicious activity to a prosecutor, who then makes an independent decision to go forward with a criminal prosecution, is not an adverse employment action.

The majority also held that the district court erred with respect to Dokes’ claim that the defendants retaliated against her by failing to reinstate her after her acquittal. I disagree. The causal connection between Dokes’ OCRC complaint and the defendants’ refusal to reinstate her is weak. This Court previously held, “the mere fact [plaintiff] was discharged four months after filing a discrimination claim is insufficient to support an inference [sic] of retaliation.” Cooper v. North Olmsted, 795 F.2d 1265, 1276 (6th Cir.1986). Nine months elapsed between the filing of the OCRC complaint and the defendants’ failure to reinstate Dokes. The majority acknowledges that the causal connection is weak, but finds enough to satisfy the prima facie requirement. Given the Sixth Circuit’s authority in Cooper and the lack of other evidence showing the discharge was in retaliation for protected activity, I find the plaintiff fails to support the causation requirement. Finding no other grounds to support causation, I conclude that Dokes failed to meet the prima facie *182case on this claim. I would affirm the district court on this issue.

II. Retaliation Based on Filing this Lawsuit

Dokes brought a third Title VII claim against Balakos and the Commissioners alleging that they retaliated against her by terminating her position after she filed this lawsuit. The district court granted summary judgment for the defendants on this retaliation claim finding that the defendants established a legitimate and nondiscriminatory reason for terminating Dokes’ temporary position. The majority affirmed the decision of the district court. I disagree.

Dokes filed this lawsuit within days of a statute of limitations deadline. When she filed this lawsuit, Dokes and DHS were negotiating her rehiring terms. Although Dokes had been put in a liaison position, the parties negotiated over returning her to a position equivalent to her former job. Commissioner Crabbe justified firing Dokes by claiming that once he received notice of the lawsuit he understood this to mean the end of the negotiations. The Commissioners say they voted to eliminate the temporary position Dokes held because there was nothing left to negotiate. However, nothing in the record indicates that Dokes had finished negotiating with DHS. Also, the record does not indicate that the Commissioners asked Dokes or her legal counsel whether they were finished negotiating. If Dokes allowed the statute of limitations to run, she would lose her claim forever. Filing this lawsuit preserved her claim, but did not necessarily end negotiations. See, Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir.2000) (“A plaintiff can refute the legitimate, nondiscriminatory reason articulated by an employer to justify an adverse employment action ‘by showing that the proffered reason ... was insufficient to warrant the challenged conduct.’ ”)

In addition to the insufficiency of the defendants’ justification, we can infer a causal connection here because the abolishment of the liaison position occurred within a few days of Dokes filing this lawsuit. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).

Given the close proximity in time between the adverse employment action and Dokes’ protected activity, we can only view suspiciously the Commissioners’ decision to abolish Dokes’ position To establish a legitimate non-retaliatory reason for an adverse employment action, an employer, “must clearly set forth ... [reasons] legally sufficient to justify a judgment for the defendant.” Texas Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248, 254-256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The defendants’ explanation is not worthy of belief. Since little evidence exists to support the defendants’ stated reason for stopping efforts to find a position for Dokes, I would find that the defendants did not meet their burden of showing a legitimate non-retaliatory reason for abolishing Dokes’ position. Therefore, I would reverse the decision of the district court on this issue and remand for further proceedings.