Opinion
Case No. 3:00CV7248
April 9, 2001
Francis J Landry, Wasserman, Bryan, Landry Honold, Toledo, OH, representing pty John C. Lautermilch.
Ronald S Moening, Robison, Curphey O'Connell, Toledo, OH, representing pty Findlay City Schools.
ORDER
I. STATEMENT OF THE CASE
This is an employment discrimination case in which plaintiff, John C. Lautermilch, alleges that defendant Findlay City Schools violated his rights under 42 U.S.C. § 1983, and the First, Fifth, and Fourteenth Amendment because defendant's decision not to rehire plaintiff constituted reverse gender discrimination, violated his right to free speech, and deprived him of a property interest. Jurisdiction arises under 28 U.S.C. § 1331. Pending is defendant's motion for summary judgment. (Doc.17). For the following reasons, defendant's motion shall be granted.
II. STATEMENT OF FACTS
Plaintiff worked as a substitute teacher for defendant from February, 1996 through November, 1998. (Doc. 20 at 12, 39). Plaintiff did not sign a contract for employment with defendant. (Doc. 20 at 29). Defendant asserts and plaintiff denies that plaintiff knew that the defendant had the right to stop calling plaintiff to work at any time. (Doc. 18 at 27-28).
Plaintiff was familiar with a Findlay City Schools document entitled "Guidelines for Substitute Teaching Service" which contains the statement: "The conduct of the teacher should conform to the accepted patterns of behavior of the most desirable members of the community." (Doc. 17 at 3; Doc 18, Exhibit F).
Defendant alleges that, in November, 1998, the defendant became aware that a female student had quoted plaintiff as saying, "Lips who [sic] touch alcohol may not touch mine, but it doesn't rule out other parts of my body." (Doc. 20 at 17-20; Doc 19 at 10-16). The student who reported the statement was asked to put it in writing and two other students verified the statement in part. (Crates Affidavit ¶ 11; Doc. 18, Exhibit G; Doc 20 at 17). Plaintiff denies making this statement. (Doc. 22 at 4).
Upon learning of the allegation, Principal Crates and Assistant Principal Kuri decided that plaintiff would not be called again as a substitute teacher until he met with Crates. (Doc. 17 at 5). On November 17, 1998, Kuri left a voice mail message informing plaintiff that he needed to meet Kuri and Crates before he was called to work again. (Doc. 20 at 21-27; Doc. 18 at 39).
Prior to the November, 1998 incident, Principal Crates had been told about several incidents involving the plaintiff. First, Crates was informed that a parent of a handicapped student did not want her child in class with plaintiff because of his reputation in the neighborhood for acting inappropriately with some children. (Doc. 20 at 15-16; 32). Second, Crates was advised that plaintiff had befriended a female high school student who was thought to be an "at risk" student. (Doc. 17 at 4). On at least two occasions, plaintiff tutored that student at his home unsupervised. (Doc. 18 at 33; Doc 20 at 24). Third, Crates became aware of reports that other teachers were upset with plaintiff for "high fiving" students in the hall and telling inappropriate jokes in the classroom. (Crates Affidavit, ¶ 8). Finally, Crates was informed that plaintiff had commented on the size of a female teacher's breasts. (Crates Affidavit, ¶ 9; Doc. 19 at 11-12).
Plaintiff denies engaging in any of the activities alleged by the defendant. (Doc. 18 at 33-35). However, in plaintiff's deposition, plaintiff admits that he tutored a female student at his home after school. (Doc. 18 at 33).
On November 20, 1998, Crates, Kuri, and plaintiff held a meeting to discuss the November, 1998 incident. (Doc. 17 at 5; Doc. 22 at 4). At the meeting, plaintiff repeatedly asked for examples and denied all the allegations. (Doc 22 at 4). Crates told plaintiff that she was concerned about a pattern of behavior and that she did not feel comfortable having plaintiff serve as a substitute teacher. (Doc. 20 at 5).
The parties disagree as to what happened next. Plaintiff asserts that Crates told him that she would look into the situation and that it would take some time, but that plaintiff would hear back probably by the end of November. (Doc. 18 at 45-6). Plaintiff further asserts that he was never advised at the meeting that if he disagreed with her decision that he had the right to talk to Dr. Ashtoreth about the situation. (Doc. 18 at 48.).
Defendant alleges that plaintiff was told that "If Dr. Ashworth is comfortable with you in the classroom, then I am." (Doc. 19 at 20-21; Doc. 20 at 28). Plaintiff never spoke to Dr. Ashworth. (Doc. 17 at 6).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleading or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
B. Deprivation of Property Interest in Continued Employment
Plaintiff alleges that by refusing to have him as a substitute teacher, defendant deprived him of a property interest without due process of law, in violation of 42 U.S.C. § 1983.
To prevail, Lautermilch must first establish that he has a protected property interest in his continued employment at Findlay High School. Public employees with a protected property interest are "entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present [their] side of the story." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985);see also Goss v. Lopez, 419 U.S. 565 (1975). Absent a property interest, plaintiff is not entitled to any pre-deprivation process. Williams v. Commonwealth of Kentucky, 24 F.3d 1526 (6th Cir. 1994). "To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee." Cleveland Bd. of Educ. v. Loudermill, 470 U.S., at 546.
"Government employment amounts to a protected property interest when the employee is `entitled' to continued employment." Bailey v. Floyd Bd. of Educ., 106 F.3d 135, 141 (1997); (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). Neither mere government employment nor an abstract need or desire for continued employment will give rise to a property interest. Roth, 408 U.S. at 577. Rather, a property interest exists and its boundaries are defined by "rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577.
To establish a protected property interest in his continued employment, plaintiff must be able "to point to some statutory or contractual right conferred by the state which supports a legitimate claim to continued employment." Bailey 106 F.3d at 141.
With respect to a contractual right, plaintiff was employed without a contract and therefore an "at will" employee. see Hankel v. Educational Research Council, 45 Ohio St.2d 249 (1976). Plaintiff asserts that the Board's habitual renewal of the annual list of substitute teachers created a protected property interest in the expectation of continued employment. I disagree. The mere fact that the defendant's past hiring methods would have included the plaintiff is insufficient to confer a protected property interest based on the possibility of those methods being used in the future.
Plaintiff additionally asserts that a property interest is created by the language contained in the Guidelines for Substitute Teaching Service in Findlay City Schools which provides, "if a substitute teacher accepts most or all requests, his/her chances of working more will be greatly increased." The language of the handbook does not entitle a substitute teacher to continued employment. It merely sets forth one of the many factors considered when dealing with substitute teachers.
With respect to the statutory right, plaintiff asserts that as a long-term substitute, he was, under Ohio Revised Code § 3319.11, entitled to notice that he was no longer going to be employed by Findlay High School. I disagree. "Teachers employed as substitutes on a casual or day-to-day basis shall not be entitled to the notice of non re-employment prescribed in § 3319.11 of the Revised Code." O.R.C. § 3319.10 (2000). Section 3319.11 requires that notice of nonrenewal be given where a teacher is a long-term substitute. State ex rel. Dennis v. Hillsdale Local School Dist., 28 Ohio St.3d 263 (1986).
In light of the fact that plaintiff's classroom assignments could vary day-by-day, he was not assigned to replace specific individuals for a clearly defined amount of time, and his pay was calculated on a daily basis, rather than according to the regular teacher's pay schedule, I find that plaintiff was a casual substitute. Id. (Holding that plaintiff was considered a long-term substitute because he was assigned to the same classroom for long periods of time and was paid according to the regular teacher's pay schedule.) Plaintiff is therefore not entitled to notice of his nonrenewal.
Additionally, plaintiff contends that defendant has the burden of showing that his services were no longer needed prior to his nonrenewal. I disagree. O.R.C. § 3319.10 provides that "substitute teachers may be employed for terms not to exceed one year" and that such assignment is "subject to termination when such services are no longer needed." Plaintiff is an at-will employee and can be terminated with or without cause. Therefore, § 3319.10 neither precludes defendant's decision not to call plaintiff nor bestows a protectable property interest on the plaintiff. Consequently, defendant is entitled to summary judgment because plaintiff has failed to establish that he has a protected property interest.
B. Freedom of Association Claim
Plaintiff claims that his right of freedom of association was violated when defendant terminated him for associating with students outside the classroom. Specifically, plaintiff claims that defendant refused to call him because plaintiff had tutored, unsupervised, an "at risk" student at his home. I disagree.
The Supreme Court has developed two lines of cases to address the First Amendment rights of public employees. McEvoy v. Spencer, 124 F.3d 92, 97-100 (2nd Cir. 1997). The first line addresses when the government can take adverse action against an employee because of his political affiliation. Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990);Branti v. Finkel, 445 U.S. 507 (1980). The second line involves government employees who claim to be victims of retaliation taken against them as reprisals for their having spoken out on matters of public concern. Connick v. Myers, 461 U.S. 138 (1983).
When a public employee speaks as "an employee upon matters only of personal interest, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior . . . ." Id. at 147-48. The court must look at "the content, form, and context of a given statement" to determine whether an employee's speech addresses a matter of public concern. Id. at 147-48.
The government has broader powers to limit speech when it is acting as an employer rather than as the sovereign. Waters v. Churchill, 511 U.S. 661, 671-72, 689 (1994) (plurality opinion). The government should be given "wide discretion and control to manage its own internal affairs and personnel." Connick, 461 U.S. at 151. The Sixth Circuit courts has held that the Connick applies to claims of both freedom of speech and freedom of association. Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985).
Plaintiff's interaction with students outside the classroom is not a matter of public concern. The defendant has a great deal of discretion when regulating a teacher's ability to meet with students outside the classroom. Therefore, defendant is entitled to summary judgment because plaintiff has failed to state a claim for which relief can be granted.
C. Freedom of Speech Claim
Next, plaintiff argues that the alleged "Lips that touch . . ." comment and his comment on the size of a female teacher's breasts are protected forms of speech for which plaintiff cannot be discharged. In Ohio, courts have tested First Amendment violations using the two-stage inquiry set forth in Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). Bailey, 106 F.3d at 144. Pursuant to this test, the employee must first establish that his speech was constitutionally protected. Doyle, 429 U.S. at 287; Langford v. Lane, 921 F.2d 677, 680 (6th Cir. 1991). Speech is protected when it "addresses a matter of public concern, and the employee's interest in making such statements outweighs the `interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."Bailey, 106 F.3d at 144; (citing Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)).
Second, plaintiff must establish that the speech was a "`substantial' factor — a `motivating' factor — in the employer's decision to terminate his or her employment." Bailey, 106 F.3d at 144.
The second part of the Mount Healthy test "requires the employee to show that he or she was discharged due to speech addressing a matter of public concern." Bailey, 106 F.3d at 144; (citing Rankin v. McPherson, 483 U.S. 378 (1987)). The plaintiff must point to "`specific, nonconclusory allegations' reasonably linking his speech to employer discipline." Bailey, 106 F.3d at 144 (citations omitted). "When opposing a motion for summary judgment, the nonmoving party may not rely on the mere fact that an adverse employment action followed speech that the employer would have liked to prevent." Collyer, 98 F.3d at 229; (citing Wright v. Illinois Dep't of Children Family Servs., 40 F.3d at 1500).
Plaintiff argues that the comments he allegedly made were done in connection with classroom instruction and therefore matters of public concern. Even looking at the evidence in the light most favorable to the plaintiff, his alleged comments do not speak to matters of public concern. Therefore, plaintiff's alleged statements do not fall within the protection of the First Amendment. Consequently, plaintiff has failed to provide a prima facie case of a First Amendment violation, and defendant's motion for summary judgment shall be granted.
D. Federal Claim for Gender Discrimination
Plaintiff contends that Crates statement that plaintiff was "too macho" coupled with his termination constituted reverse gender discrimination in violation of Title VII.
Intentional discrimination may be established with direct evidence of discrimination, or by circumstantial evidence to create an inference of discrimination. See Talley v. Bravo Pitino Restaurant, 31 F.3d 1241, 1246 (6th Cir. 1995). Because, plaintiff fails to show any direct evidence of discrimination, plaintiff's claim will be analyzed under theMcDonnell-Douglas burden shifting approach to circumstantial evidence. McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973).
A plaintiff bringing a sex discrimination claim carries the initial burden of proving by a preponderance of the evidence a prima facie case. Plaintiff must provide evidence that: 1) he was a member of a protected class; 2) he was subjected to adverse employment action; 3) he was qualified for the position; and 4) he was replaced by a person outside the protected class. McDonnell-Douglass, 411 U.S. at 802.
Proof of all four criteria raises a presumption of sex discrimination. If plaintiff succeeds in proving his prima facie case, the burden then shifts to the employer to "articulate some legitimate nondiscriminatory reason for the employee's [discharge]." McDonald v. Union Camp Corp., 898 F.2d 1155, 1159-60 (6th Cir. 1990) (citing McDonnell-Douglass, 411 U.S. at 802). If the employer sets forth a nondiscriminatory reason, the plaintiff must prove by a preponderance of the evidence "that the legitimate reasons offered by the [employer] were not its true reasons, but were a pretext for discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Plaintiff, as a male, is a member of a protected class. Plaintiff suffered an adverse employment action by defendant's refusal to continue using him as a substitute teacher. Plaintiff is qualified for the position of substitute teacher as evidenced by his credentials.
However, defendant argues, and I agree, that plaintiff fails to offer any evidence: 1) that he was replaced by someone outside his protected class; 2) that defendant has no articulated legitimate, and non-discriminatory reason for terminating plaintiff; or 3) that defendants articulated reasons are merely a pretext for discrimination.
Furthermore, an isolated comment that plaintiff was "too macho" is not a sufficient basis for attributing discriminatory animus to the defendant. Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998) ("Simple `teasing,' offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment.'"). Plaintiff has failed to establish his prima facie case, therefore, defendant is entitled to summary judgment.
D. Other State Claims
Because defendant's summary judgment motion for plaintiff's federal law claim has been granted, plaintiff's remaining state law claims are dismissed without prejudice. See Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284 (6th Cir. 1992) (holding that district court did not abuse its discretion by refusing to exercise jurisdiction over plaintiff's state law claim).
IV. Conclusion
It is, therefore, ORDERED THAT Defendant's motion for summary judgment is granted.