Macy v. Hopkins Cnty School ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0133p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
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Plaintiff-Appellant, -
SHARON MACY,
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No. 06-5722
v.
,
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HOPKINS COUNTY SCHOOL BOARD OF EDUCATION, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 01-00195—E. Robert Goebel, Magistrate Judge.
Argued: March 8, 2007
Decided and Filed: April 12, 2007
Before: MOORE and GIBBONS, Circuit Judges; SARGUS, District Judge.*
_________________
COUNSEL
ARGUED: Robert S. Silverthorn, Jr., Louisville, Kentucky, for Appellant. J. Keith Cartwright,
FRYMIRE, EVANS, PEYTON, TEAGUE & CARTWRIGHT, Madisonville, Kentucky, for
Appellee. ON BRIEF: Robert S. Silverthorn, Jr., Louisville, Kentucky, for Appellant. J. Keith
Cartwright, FRYMIRE, EVANS, PEYTON, TEAGUE & CARTWRIGHT, Madisonville, Kentucky,
for Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Sharon Macy (“Macy”)
appeals the district court’s order granting summary judgment to Defendant-Appellee Hopkins
County School Board of Education (“the Board”). Macy alleged that the Board violated federal and
state law by firing her because she was disabled and in retaliation for protected activities. The Board
asserted that Macy was fired for threatening students and making inappropriate remarks about the
students and their families, and that this was the latest in a series of incidents of misconduct. The
district court granted the Board’s motion for summary judgment, concluding that Macy had not
introduced direct or circumstantial evidence sufficient for a jury to find that she was fired because
of her disability or in retaliation for protected activities. Because Macy has not presented evidence
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting
by designation.
1
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 2
from which a reasonable jury could conclude that the Board’s proffered reason for firing her was
pretextual, and because Macy has forfeited her retaliation claims and state-law claims, we AFFIRM
the judgment of the district court.
I. BACKGROUND
Sharon Macy was employed as a physical-education teacher by the Hopkins County School
Board of Education from August of 1981 until November 30, 2000. On June 6, 1987, Macy suffered
a head injury in a bicycle accident. She returned to work, but aggravated her injuries in another
accident in 1996. Soon after, the Board and Macy agreed to implement certain accommodations as
a result of Macy’s head injuries.
Macy and the Board developed a “Section 504 Individualized Accommodation Plan” (“504
Plan”), which listed Macy’s disabling condition as “post concussive syndrome” and described such
symptoms as “[r]ecurrent headaches, difficulty with attention and concentration, short term memory
deficits, disrupted sleep, depression and/or anxiety, irritability with others and outbursts of anger.”
Joint Appendix (“J.A.”) at 204, 208. The 504 Plan described the impact of Macy’s condition and
listed accommodations that the Board and Macy were to implement. For example, the 504 Plan
noted that Macy “may need to leave her classroom suddenly due to acceleration of symptoms
identified in medical diagnosis” and that her classroom “needs to be as organized and as free from
disruptions as possible so that the opportunities for loud disruptions or outbursts are minimal thus
decreasing Ms. Macy’s chances of becoming frustrated, anxious, or inattentive.” J.A. at 205, 209.
Additionally, Macy requested that she be allowed to have a colleague present during meetings with
parents or administrators “for assurance and retention purposes.” J.A. at 206, 210.
Macy complained approximately ten times that Daryl Herring (“Herring”), the principal of
the middle school at which Macy worked, did not properly implement the 504 Plan. Each time,
Macy contacted assistant superintendent Linda Zellich (“Zellich”), the Board’s “point person” for
overseeing the 504 Plan. Macy testified that in response to her complaints, Zellich would call
Herring or set up a meeting to discuss her complaint. Macy also testified that only once did Zellich
not satisfy her complaints—when Macy requested a teacher’s aide in August 2000.
On February 21, 2000, Macy filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) and the Kentucky Commission on Human Rights. Macy alleged that
Herring sent her a letter requesting that she report to work on time and that she complained to
Zellich that Herring did not send similar letters to non-disabled employees who arrive late or sign
in late. Macy alleged that Herring later sent her a letter of reprimand purportedly regarding another
incident, but stated that she believed Herring’s second letter was actually in retaliation for her
complaints about the first letter.
On November 1, 2000, Macy was involved in an incident at South Hopkins Middle School,
where she worked. As Macy left to go home that afternoon, she saw a group of boys playing
basketball outside unsupervised. Macy claims that she brought the boys inside and lectured them
about playing outside unsupervised, warning that they could have been seriously injured or killed.
The boys claimed that Macy threatened to kill them and reiterated that “she meant it.” J.A. at 145
(Macy v. Stevens, No. 2001-CA-002756-MR, at 8 (Ky. Ct. App. Dec. 13, 2002)). The boys also
claimed that Macy made inappropriate remarks about the marital status of their family members and
about their sexual activity, including “derogatory comments about men to the effect that they raped
women, that they got them pregnant and then left them.” J.A. at 140, 145 (Macy, No. 2001-CA-
002756-MR, at 3, 8).
Following the incident, Superintendent James Lee Stevens (“Stevens”) ordered an
investigation into both the incident and any past problems involving Macy. On November 30, 2000,
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 3
following the investigation, Stevens sent Macy a letter notifying her that, pursuant to KY. REV.
STAT. § 161.790(1)(b), her employment contract was terminated effective immediately on the
grounds of conduct unbecoming a teacher, citing the November 1 incident as well as thirty-one
specific prior incidents.
Macy requested that an administrative tribunal review Stevens’s decision, pursuant to KY.
REV. STAT. § 161.790(3) and (4). See also KY. REV. STAT. § 13B.090. After a hearing, the tribunal
determined that Macy’s principal had failed to notify her properly of charges that she arrived late
for work and that at least four infractions described in the termination letter were not supported by
the evidence. However, the tribunal also concluded that Macy had indeed committed many of the
other alleged infractions. Specifically, the tribunal determined that Macy had left the school
building without signing out, pushed a chair off a stage, referred to a student as a “total loser,”
violated the policy on grades, kicked a trash can in response to student misbehavior, made
derogatory comments about a parent and two other employees in front of a classroom of students
including the child of the parent, sent a fake detention to the assistant principal, checked out early
without ensuring that a fellow employee would cover her bus duty, improperly disciplined students,
slammed a book against the floor and made derogatory comments about other employees during a
meeting, and made statements that she would not follow discipline policies. J.A. at 119-20 (Tribunal
Order at 2-3). Most importantly, the tribunal determined that Macy had actually threatened a group
of boys on November 1, 2000, and “also made inappropriate statements about the marital status of
children’s families and made inappropriate remarks regarding the students’ sexual activity.” J.A.
at 121 (Tribunal Order at 4).
On the basis of the evidence presented, the tribunal “f[ou]nd[] Macy guilty of conduct
unbecoming a teacher, and the tribunal impose[d] the punishment of termination of her teaching
contract.” J.A. at 118 (Tribunal Order at 1). Macy appealed the tribunal’s decision to the Hopkins
County Circuit Court, see KY. REV. STAT. §§ 13B.140 & .150, which affirmed the decision on
December 7, 2001. Macy further appealed to the Kentucky Court of Appeals, which affirmed on
December 13, 2002. Macy filed a motion for discretionary review with the Kentucky Supreme
Court, which denied the motion on August 17, 2005. On December 14, 2004, during the course of
Macy’s appeals, the Kentucky Education Professional Standards Board revoked Macy’s teaching
certificate for a period of ten years.
Meanwhile, Macy faced criminal charges stemming from the November 1, 2000 incident.
The parties agree that on November 29, 2000, Macy was charged with1nine counts of terroristic
threatening in the third degree in violation of KY. REV. STAT. § 508.080. Macy was convicted by
a Hopkins County District Court jury. Her conviction was affirmed by the Hopkins County Circuit
Court, and both the Kentucky Court of Appeals and the Kentucky Supreme Court denied
discretionary review. The United States Supreme Court denied Macy’s petition for certiorari. Macy
v. Kentucky, 542 U.S. 938 (2004).
Also during this time period, Macy’s complaint with the EEOC and the Kentucky
Commission on Human Rights was resolved. The Kentucky Commission on Human Rights
dismissed Macy’s complaint on June 21, 2001, “upon a finding of no probable cause to believe that
the Respondent has engaged in an unlawful practice in violation of the Kentucky Civil Rights Act.”
J.A. at 130-31 (Ky. Comm’n on Human Rights Order). On August 16, 2001, the EEOC also
dismissed Macy’s complaint, indicating that it had “adopted the findings of the state or local fair
employment practices agency that investigated this charge.” J.A. at 132 (EEOC Dismissal & Notice
of Rights).
1
The statute states, in relevant part: “(1) . . . [A] person is guilty of terroristic threatening in the third degree
when: (a) He threatens to commit any crime likely to result in death or serious physical injury to another person or likely
to result in substantial property damage to another person . . . .” KY. REV. STAT. § 508.080.
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 4
On November 15, 2001, Macy filed a pro se complaint in the federal district court against
the Hopkins County Board of Education. Through counsel, Macy filed an amended complaint on
April 22, 2005, alleging five counts: (1) violation of the Americans with Disabilities Act (“ADA”);
(2) retaliation for Macy’s complaints regarding implementation of her 504 Plan; (3) retaliation for
Macy’s complaint filed with the EEOC; (4) discriminatory discharge in violation of the Kentucky
Civil Rights Act, KY. REV. STAT. § 344.040; and (5) retaliation in violation of the Kentucky Civil
Rights Act, KY. REV. STAT. § 344.280. The Board filed a motion for summary judgment on January
13, 2006. Macy filed a response on February 13, 2006, and the Board filed a reply on February 27,
2006. On May 1, 2006, the district court granted summary judgment for the Board on all claims.
Macy timely appealed. After the parties submitted their briefs and the case was set for argument,
we sought and received letter briefs regarding whether and to what extent Macy’s claims were
barred by the doctrine of issue preclusion.
II. ANALYSIS
We review de novo a district court’s order granting summary judgment. DiCarlo v. Potter,
358 F.3d 408, 414 (6th Cir. 2004). Summary judgment is proper if the evidence, taken in the light
most favorable to the nonmoving party, shows that there are no genuine issues of material fact and
that the moving party is entitled to a judgment as a matter of law. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); FED. R. CIV. P. 56(c). “The moving party bears the
burden of demonstrating that there are no genuine issues of material fact, which ‘may be discharged
by “showing”—that is, pointing out to the district court—that there is an absence of evidence to
support the nonmoving party’s case.’” Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir.
2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The nonmoving party must
then put forth “significantly probative” evidence supporting its claims in order to defeat summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Of course, we must be
mindful that summary judgment is inappropriate whenever the evidence raises a genuine issue of
material fact, “that is, if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248.
A. ADA Discrimination Claim
The ADA bars employers from “discriminat[ing] against a qualified individual with a
disability because of the disability of such individual in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). “To recover on a claim
of discrimination under the [ADA], a plaintiff must show that: 1) he is an individual with a
disability; 2) he is ‘otherwise qualified’ to perform the job requirements, with or without reasonable
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 5
accommodation; and 3) he was discharged solely by reason of his handicap.”2 Monette v. Elec. Data
Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996).
Macy attempts to meet this burden by presenting circumstantial evidence of discrimination,3
requiring us to apply the familiar McDonnell Douglas burden-shifting framework. “On a motion
for summary judgment, a district court considers whether there is sufficient evidence to create a
genuine dispute at each stage of the McDonnell Douglas inquiry.” Cline v. Catholic Diocese of
Toledo, 206 F.3d 651, 661 (6th Cir. 2000). Thus, the plaintiff must first submit evidence from which
a reasonable jury could conclude that a prima facie case of discrimination has been established.
Monette, 90 F.3d at 1186. The defendant must then offer sufficient evidence of a legitimate,
nondiscriminatory reason for its action. Id. If the defendant does so, the plaintiff must identify
evidence from which a reasonable jury could conclude that the proffered reason is actually a pretext
for unlawful discrimination. Id. Although the burdens of production shift, “[t]he ultimate burden
of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981).
1. Prima Facie Case
“The burden of establishing a prima facie case of disparate treatment is not onerous.” Id.
Generally, at the summary judgment stage, a plaintiff’s burden is merely to present evidence from
which a reasonable jury could conclude that the plaintiff suffered an adverse employment action
2
It appears that every other circuit save one that has addressed the issue has held that an employee may recover
under the ADA if the employee’s disability was a “motivating factor” in the employer’s decision, and that the employee
need not establish that he or she was fired “solely” because of his or her disability. See Head v. Glacier Northwest, Inc.,
413 F.3d 1053, 1063-65 (9th Cir. 2005); Parker v. Columbia Pictures Indus., 204 F.3d 326, 336-37 (2d Cir. 2000); Baird
ex rel. Baird v. Rose, 192 F.3d 462, 468-70 (4th Cir. 1999); Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34
(7th Cir. 1999); Newberry v. E. Tex. State Univ., 161 F.3d 276, 279 (5th Cir. 1998); McNely v. Ocala Star-Banner Corp.,
99 F.3d 1068, 1073-77 (11th Cir. 1996), cert. denied, 520 U.S. 1228 (1997); Katz v. City Metal Co., 87 F.3d 26, 33 (1st
Cir. 1996); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301-02 (8th Cir. 1995). But see Fitzgerald v. Corr. Corp.
of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (“Under either the ADA or the Rehabilitation Act, [the plaintiff] is
obligated to show that he was ‘otherwise qualified’ for the benefits he sought and that he was denied those ‘solely by
reason of disability.’”). However, we have reaffirmed that Monette requires that a plaintiff demonstrate that “disability
was the sole reason for the adverse employment action.” Hedrick v. W. Reserve Case Sys., 355 F.3d 444, 454 (6th Cir.),
cert. denied, 543 U.S. 817 (2004). It appears that we adopted this requirement from the standards which apply to the
Rehabilitation Act, which by its terms bars discrimination against a person with a disability “solely by reason of her or
his disability.” 29 U.S.C. § 794(a). The ADA, on the other hand, bars discrimination “because of the disability,” with
no mention of the word “solely.” 42 U.S.C. § 12112(a). We are, of course, currently bound by Monette and Hedrick,
see Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6th Cir. R. 206(c) (“Reported panel
opinions are binding on subsequent panels.”), whether the reasoning set forth in those opinions was correct or not.
3
Macy argued below that she had presented direct evidence of discrimination, but mentions this argument in
her brief on appeal in only one sentence, and only in passing. See Appellant’s Br. at 19 (“The District Court, however,
found that Macy’s direct evidence required it ‘. . . to draw an inference in order to prove the existence of a fact’; and thus
no direct evidence existed that her termination was ‘solely’ due to her ADA post concussive syndrome.”). Accordingly,
this argument is forfeited, and we do not address it here. See United States v. Reed, 167 F.3d 984, 993 (6th Cir.), cert.
denied, 528 U.S. 897 (1999). Macy’s counsel attempted to raise this issue again at oral argument, but oral argument
generally cannot resurrect issues forfeited in briefs. See Hamilton v. Morgan, 474 F.3d 854, 861 n.5 (6th Cir. 2007);
cf. United States v. Harper, 246 F.3d 520, 522, 529 (6th Cir. 2001) (considering the merits of an issue raised for the first
time at oral argument because intervening changes in case law affected the issue and counsel notified the court
beforehand of counsel’s intention to raise the issue at oral argument), overruled on other grounds by United States v.
Leachman, 309 F.3d 377, 384 n.7 (6th Cir. 2002). To the extent that Macy merely restates her argument that firing her
because of her behavior was improper because her behavior was due to her disability, this argument is addressed infra,
Section II.A.2.
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 6
“under circumstances which give rise to an inference of unlawful discrimination.”4 Id. Thus, a
plaintiff normally must show that he or she: 1) is a member of a protected class; 2) was qualified
for the position; 3) suffered an adverse employment action; and 4) suffered such action under
circumstances which give rise to an inference of unlawful discrimination. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); Monette, 90 F.3d at 1177-86. The Supreme Court and
this court have set forth a number of more specific ways by which a plaintiff may satisfy these
elements, particularly the fourth element. See, e.g., O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 313 (1996) (concluding that a plaintiff alleging age discrimination may satisfy the fourth
element by introducing evidence that the plaintiff was replaced by someone “substantially
younger”); McDonnell Douglas, 411 U.S. at 802 (concluding that a plaintiff turned down for a job
may show “that, after his rejection, the position remained open and the employer continued to seek
applicants from persons of complainant’s qualifications”); Wright, 455 F.3d at 707 (concluding that
a fired plaintiff may show that “‘he or she was replaced by someone outside the protected class or
was treated differently than similarly-situated, non-protected employees’” (quoting DiCarlo v.
Potter, 358 F.3d 408, 415 (6th Cir. 2004))); Monette, 90 F.3d at 1185 (concluding that a plaintiff
alleging discrimination on the basis of disability may show that “after rejection or termination the
position remained open, or the disabled individual was replaced”). We must keep in mind, however,
that these are merely various context-dependent ways by which plaintiffs may establish a prima facie
case, and not rigid requirements that all plaintiffs with similar claims must meet regardless of
context. See McDonnell Douglas, 411 U.S. at 802 n.13 (“The facts necessarily will vary in
[employment discrimination] cases, and the specification above of the prima facie proof required
from [a plaintiff] is not necessarily applicable in every respect to differing factual situations.”). The
key question is always whether, under the particular facts and context of the case at hand, the
plaintiff has presented sufficient evidence that he or she suffered an adverse employment action
under circumstances which give rise to an inference of unlawful discrimination. Burdine, 450 U.S.
at 253.
Under the facts of this case, the prima facie case formulation set forth in Monette applies
quite well. In order to establish a prima facie case of discrimination in violation of the ADA in this
context, a plaintiff must show that: “1) he or she is disabled; 2) otherwise qualified for the position,
with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the
employer knew or had reason to know of the plaintiff’s disability; and 5) the position remained open
while the employer sought other applicants or the disabled individual was replaced.” Monette, 90
F.3d at 1186. In its summary judgment motion below, the Board did not argue that Macy had not
introduced sufficient evidence of a prima facie case. On appeal, the Board asserts that it did not
concede that Macy had established a prima facie case, but does not address the elements of a prima
facie case and argues only that the Board had a legitimate reason for firing Macy. We are mindful
that “when assessing whether a plaintiff has met her employer’s legitimate expectations at the prima
facie stage of a termination case, a court must examine plaintiff's evidence independent of the
nondiscriminatory reason ‘produced’ by the defense as its reason for terminating plaintiff.” Cline,
206 F.3d at 660-61. Accordingly, we treat Macy’s prima facie case as conceded for purposes of this
appeal.
4
In Burdine, the Supreme Court stated that a plaintiff must “prove by a preponderance of the evidence” the
elements of a prima facie case in order to meet his or her burden. Burdine, 450 U.S. at 253. However, the Court was
reviewing a bench trial, not a motion for summary judgment, and we have since made clear that a district court’s duty
in reviewing a motion for summary judgment is to “determine[] if a plaintiff has put forth sufficient evidence for a
reasonable jury to find her to have met the prima facie requirements.” Cline, 206 F.3d at 661; see also St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 509-10 (1993) (stating that a question of fact remains for the jury if “reasonable minds could
differ as to whether a preponderance of the evidence establishes the facts of a prima facie case”) (emphasis removed).
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 7
2. Legitimate, Nondiscriminatory Reason
The Board introduced evidence that Macy was fired because she threatened to kill a group
of boys, made inappropriate remarks about the marital status of the boys’ family members, and made
inappropriate remarks about the boys’ sexual activity, and that this incident was consistent with a
number of prior incidents of inappropriate conduct. Macy argues that this is not a legitimate,
nondiscriminatory reason because her “verbal outbursts, anxiety, anger and . . . irritability” are
symptomatic behaviors of her disability and, therefore, the Board’s proffered reason actually
concedes that she was fired because of her disability. Appellant’s Br. at 18. However, this court
has repeatedly stated that an employer may legitimately fire an employee for conduct, even conduct
that occurs as a result of a disability, if that conduct disqualifies the employee from his or her job.
See Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 813 (6th Cir. 1999), cert. denied, 530 U.S.
1262 (2000); Brohm v. JH Props., Inc., 149 F.3d 517, 521-22 (6th Cir. 1998); Mararri v. WCI Steel,
Inc., 130 F.3d 1180, 1182-83 (6th Cir. 1997); Maddox v. Univ. of Tenn., 62 F.3d 843, 845-48 (6th
Cir. 1995). Accordingly, the Board has offered a legitimate, nondiscriminatory reason for firing
Macy.
3. Pretext
A plaintiff may demonstrate that an employer’s proffered legitimate reason for an adverse
employment action is pretextual on any of three grounds: 1) by showing that the reason has no basis
in fact; 2) by showing that the reason did not actually motivate the employer’s action; or 3) by
showing that the reason was insufficient to motivate the action. Manzer v. Diamond Shamrock
Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994). Macy attempts to attack the Board’s proffered
reason on all three grounds, but her evidence is insufficient to survive the Board’s motion for
summary judgment on each ground.
a. No Basis In Fact
Macy first argues that the Board’s proffered reason is pretextual because it has no basis in
fact. That is, Macy attempts to introduce “evidence that the proffered bases for [her] discharge
never happened, i.e., that they are ‘factually false.’” Id. (quoting Anderson v. Baxter Healthcare
Corp., 13 F.3d 1120, 1124 (7th Cir. 1994)). In her deposition, Macy testified that she did not
threaten to kill the group of boys on November 1, 2000, and did not make inappropriate remarks
about the boys or their families. Macy also testified that she admitted seven of the thirty-one
additional incidents listed in her termination letter, although she denied some of the particular facts
asserted about those seven incidents.
Normally, Macy’s deposition testimony that a number of the incidents relied on by the Board
in firing her did not occur as described by the Board, including the November 1, 2000 incident upon
which the Board primarily relied, could be sufficient to create a genuine issue of material fact
regarding whether these parts of the Board’s proffered reason were pretextual. Cf. Abbott v. Crown
Motor Co., 348 F.3d 537, 544 (6th Cir. 2003) (concluding that summary judgment was improper
because “both plaintiff’s testimony and that of another witness dispute [the] proffered reason”).
However, in this case, Macy is precluded from arguing that the underlying incidents did not occur
by the doctrine of issue preclusion.5
5
Neither party raised issue preclusion in this appeal, and “[c]ourts generally lack the ability to raise an
affirmative defense sua sponte.” Hutcherson v. Lauderdale County, Tenn., 326 F.3d 747, 757 (6th Cir. 2003). However,
“where a purely legal issue provides alternative grounds to uphold the judgment of the district court, we may reach the
issue, provided the record permits its resolution as a matter of law. Furthermore, we have not failed to exercise our
discretion to reach an issue that the parties have not briefed where it involves a ‘pure question of law that cries out for
resolution.’” Id. at 756 (citations omitted) (quoting Rybarczyk v. TRW, Inc., 235 F.3d 975, 984 (6th Cir. 2000)) (raising
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 8
Under Kentucky law, issue preclusion applies only if four elements are met:
First, the issue in the second case must be the same as the issue in the first case.
Second, the issue must have been actually litigated. Third, even if an issue was
actually litigated in a prior action, issue preclusion will not bar subsequent litigation
unless the issue was actually decided in that action. Fourth, for issue preclusion to
operate as a bar, the decision on the issue in the prior action must have been
necessary to the court’s judgment.
Yeoman v. Commonwealth, 983 S.W.2d 459, 465 (Ky. 1998). Federal courts must give the same
preclusive effect to a state-court judgment as that judgment receives in the rendering state. 28
U.S.C. § 1738. Moreover, although § 1738 does not apply to decisions of state administrative
tribunals, “when a state agency ‘acting in a judicial capacity . . . resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to litigate,’ federal courts must
give the agency’s factfinding the same preclusive effect to which it would be entitled in the State’s
courts.” Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (quoting United States v. Utah Constr.
& Mining Co., 384 U.S. 394, 422 (1966)).
Two state decisions preclude Macy from arguing that the Board’s proffered reason had no
basis in fact. First, Macy admits that she was convicted by a Hopkins County District Court jury
of nine counts of terroristic threatening in violation of KY. REV. STAT. § 508.080, and that this
judgment was upheld on appeal through the Kentucky court system. Thus, whether or not Macy
actually threatened to kill the boys is an issue that was litigated, decided, and was necessary for the
judgment in Macy’s Kentucky criminal case. Accordingly, she is precluded from arguing in federal
court that she did not actually threaten to kill the boys.
Second, an administrative tribunal also determined that Macy had actually threatened to kill
the boys. Moreover, the tribunal determined that Macy had made inappropriate comments to the
boys and had committed a number of the other instances of conduct unbecoming a teacher described
in Macy’s termination letter.6 The tribunal concluded that “[t]he seriousness of the misconduct of
threatening to kill students in itself warrants termination, and the other instances of conduct
unbecoming a teacher show a pattern of misconduct and serve to reinforce that sanction.” J.A. at
123 (Tribunal Order at 6). This determination was also upheld on appeal through the Kentucky
court system. Thus, whether or not Macy actually committed those particular infractions and
whether they constituted legal cause for termination under Kentucky law are issues that were
litigated, decided, and were necessary for the judgment in Macy’s administrative case. Accordingly,
she is precluded from arguing in federal court that she did not actually commit those infractions and
the issue of res judicata sua sponte). Moreover, the Supreme Court has indicated that courts may raise preclusion sua
sponte in “special circumstances,” in no small part because preclusion doctrine “is not based solely on the defendant’s
interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial
waste.” Arizona v. California, 530 U.S. 392, 412 (2000).
We believe that this case presents such special circumstances. The Board complied with Federal Rule of Civil
Procedure 8(c) by raising issue preclusion in its answer to Macy’s amended complaint, and raised it again in its motion
for summary judgment in the district court. Moreover, we asked for and received letter briefs from the parties on issue
preclusion as well. Thus, Macy was put on notice of the defense and had an opportunity to respond, both in the district
court and on appeal. Macy has already litigated the underlying issue twice, and has not presented any new evidence or
any other reason suggesting why litigating it a third time would be appropriate. Resolution of the preclusive effect of
the state-court judgments at issue presents a pure question of law and does not require us to resolve any factual disputes.
Accordingly, we address issue preclusion here.
6
It is worth noting that Macy admitted a number of these infractions in her deposition testimony. See J.A. at
87-89 (Macy Dep. at 37-47).
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 9
that the Board’s proffered reason has no basis in fact.7 Cf. Wicker v. Bd. of Ed., 826 F.2d 442, 447-
49 (6th Cir. 1987) (concluding that Kentucky state-court decisions precluded a fired superintendent
from relitigating whether he actually mishandled the school system’s financial affairs and whether
that was legal grounds for termination).
b. Did Not Actually Motivate
Next, Macy argues that parts of the Board’s proffered reason—specifically, all of the alleged
incidents prior to the November 1, 2000 incident—are pretextual because they did not actually
motivate the Board’s decision to fire her. For the purposes of this argument, “the plaintiff admits
the factual basis underlying the employer’s proffered explanation and further admits that such
conduct could motivate dismissal.” Manzer, 29 F.3d at 1084. Nevertheless, the plaintiff argues that
the proffered reason is pretextual by “attempt[ing] to indict the credibility of his employer’s
explanation by showing circumstances which tend to prove that an illegal motivation was more
likely than that offered by the defendant.” Id. That is, “the plaintiff argues that the sheer weight of
the circumstantial evidence of discrimination makes it ‘more likely than not’ that the employer’s
explanation is a pretext, or coverup.” Id.
Macy argues that “the Board’s use of other alleged factors, accumulated over an extended
period of time, to justify her termination is less than credible.” Appellant’s Br. at 17. Macy notes
that she “had never been placed on any corrective action plan for any alleged violations during the
entire period of her employment with the Board.” Id. at 20-21; see also J.A. at 218 (Woodward Dep.
at 243) (stating that “problems with a teacher or that teacher’s abilities” would be reflected in a
corrective action plan). Although “failure to follow internal procedures can be evidence of pretext,”
Felder v. Nortel Networks Corp., 187 F. App’x 586, 595 (6th Cir. 2006) (unpublished opinion)
(emphasis added); see also Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252,
267 (1977) (noting, in the context of reviewing a zoning decision, that “[d]epartures from the normal
procedural sequence also might afford evidence that improper purposes are playing a role”), such
a failure is, by itself, “generally insufficient to support a finding of pretext,” White v. Columbus
Metro. Hous. Auth., 429 F.3d 232, 246 (6th Cir. 2005). In this case, Stevens testified that the
information about the prior incidents was collected because he ordered an investigation in response
to the November 1, 2000 incident, in order to help him make a decision on how to respond to the
incident. The only evidence in the record on this issue shows that Macy was not fired on the basis
of a collection of incidents newly brought to her attention—a situation which might very well create
a triable issue of pretext—but was fired instead on the basis of a significant incident and a resulting
investigation showing that that incident was not an isolated occurrence. Because Macy has not
presented any evidence to the contrary, she has not established a triable issue that the Board’s
proffered reasons did not actually motive the decision to fire her.
c. Insufficient to Motivate
Finally, Macy argues that the Board’s proffered reason is pretextual because it was
insufficient to motivate the decision to fire her. This argument does not necessarily require that a
plaintiff show that her employer did not have legal cause to fire her, but instead, “ordinarily, consists
of evidence that other employees, particularly employees not in the protected class, were not fired
even though they engaged in substantially identical conduct to that which the employer contends
motivated its discharge of the plaintiff.” Manzer, 29 F.3d at 1084; cf. Thomas v. Contoocook Valley
7
In its letter brief, the Board argues that Macy is also precluded from litigating the issue of whether the Board
unlawfully discriminated against her because she has already litigated that issue in state court. However, the state-court
decisions make clear that the administrative tribunal did not decide that issue. See J.A. at 142-43 (Macy, No. 2001-CA-
002756-MR, at 5-6) (affirming the hearing officer’s determination “that the ADA was not applicable law” in the
administrative tribunal review of Macy’s termination).
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 10
Sch. Dist., 150 F.3d 31, 42 (1st Cir. 1998) (noting that the resolution of an employment
discrimination case turns on the employer’s actual motivation for firing an employee, as opposed
to whether the employer had legal cause to fire the employee). We have explained that this standard
requires a plaintiff to introduce evidence sufficient to enable a reasonable jury to conclude that the
employees are “similar ‘in all of the relevant aspects.’” Johnson v. Kroger Co., 319 F.3d 858, 867
(6th Cir. 2003) (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998) (internal quotation marks omitted)). “[T]he relevant factors . . . often include the employees’
supervisors, the standards that the employees had to meet, and the employees’ conduct. But the
weight to be given to each factor can vary depending upon the particular case.” Id. (internal
citations and parentheticals omitted). Moreover, because we are reviewing an order granting
summary judgment, we must draw all reasonable inferences in favor of Macy. See DiCarlo, 358
F.3d at 414.
Macy argues that “[t]he Board’s disparative [sic] treatment of Macy, compared to other
Board employees, is stark,” Appellant’s Br. at 22, and at oral argument, Macy’s counsel identified
Patricia Bush (“Bush”) as a nondisabled employee treated differently for substantially similar
conduct. Bush was disciplined for telling a teacher’s aide that she would “kill” a student if the aide
did not remove the student from the room. J.A. at 167 (Stevens Dep. at 96). Bush made this
statement in the presence of students, at least one of whom overheard her comment. Macy argued
below that Stevens treated Bush differently by not reviewing Bush’s history and by suspending Bush
rather than firing her.
From the evidence that Macy presented, it appears possible that Macy and Bush are similar
in many relevant respects. Specifically, both Bush and Macy were teachers in the same school
district. Although Macy has not pointed to evidence that they worked in the same school, both were
disciplined by Superintendent Stevens, who had ultimate supervisory and decision-making authority
over both of them. Perhaps most importantly, both Bush and Macy stated that they would kill a
student.
Because incidents of misconduct giving rise to discipline form the crux of the similarities
between Bush and Macy, the degree of their misconduct is a factor to be given great weight in this
case. See Johnson, 319 F.3d at 867. This does not require that Macy introduce evidence showing
that Bush engaged in identical conduct, but merely that Bush engaged in conduct of “comparable
seriousness.” See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (1976)
(“[P]recise equivalence in culpability between employees is not the ultimate question: as we
indicated in McDonnell Douglas, an allegation that other ‘employees involved in acts against (the
employer) of Comparable seriousness . . . were nevertheless retained . . .’ is adequate to plead an
inferential case that the employer’s reliance on his discharged employee’s misconduct as grounds
for terminating him was merely a pretext.” (quoting McDonnell Douglas, 411 U.S. at 804)
(alteration in original)); Wright, 455 F.3d at 710 (“In the disciplinary context, we have held that to
be found similarly situated, the plaintiff and his proposed comparator must have engaged in acts of
‘comparable seriousness.’”). However, the only evidence that Macy has pointed to concerning the
incident involving Bush is parts of two pages of Stevens’s deposition testimony. Stevens testified
that Bush made a “threatening comment” and used the word “kill” in talking to a teacher’s aide in
reference to a student and that at least one student overheard this, but Stevens did not provide any
further details about the circumstances of that incident. Macy did not introduce testimony from
Bush, the teacher’s aide, or the student, or any other additional evidence about the incident. Macy
also did not argue that she should be granted more time pursuant to Federal Rule of Civil Procedure
56(f) to secure such evidence.
Although it is possible that these two incidents were of comparable seriousness, absent
additional evidence, a jury could reach such a conclusion only by filling in the details with
speculation. For example, the lack of evidence suggests at least two possible important differences
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 11
between the two incidents. First, Macy directly threatened to kill a group of students, but Bush
made her threatening statement about a student to a teacher’s aide. That difference might be
inconsequential in many cases, but Macy also has not pointed to evidence showing that the student
that Bush allegedly threatened heard Bush’s comment, or was even in the room when the comment
was made.8 We must draw all reasonable inferences in favor of Macy, but Macy has not pointed
to any evidence from which a jury could infer that the student heard Bush’s comment, and such a
conclusion would thus be a guess, not an inference. Because making threatening comments about
a student outside of the student’s presence is conduct significantly less serious than directly
threatening a group of students, the limited evidence presented is not9 sufficient for a reasonable jury
to conclude that Macy was treated differently in a similar situation. Thus, Macy has not presented
evidence from which a reasonable jury could conclude that the Board’s proffered reason was
pretextual. Accordingly, we affirm the district court’s decision granting summary judgment to the
Board on Macy’s ADA discrimination claim.
B. Retaliation Claims
Macy alleged in her amended complaint that the Board retaliated against her for her
complaints that her 504 Plan was not being implemented correctly and because she filed a complaint
with the EEOC. Macy has not identified the law upon which her retaliation claims are based, and
Macy has not attempted to develop her retaliation claims on appeal. Accordingly, those claims are
forfeited. See United States v. Reed, 167 F.3d 984, 993 (6th Cir.), cert. denied, 528 U.S. 897 (1999).
Macy’s retaliation claims also fail on the merits. This court has noted that the “essence” of
a retaliation claim “is that the plaintiff engaged in conduct protected by the Constitution or by
statute, the defendant took an adverse action against the plaintiff, and this adverse action was taken
(at least in part) because of the protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 386-87
(6th Cir. 1999) (en banc). Macy has satisfied the first two elements, but has not introduced any
evidence that her firing was in retaliation for protected conduct beyond the evidence that she
introduced in support of her ADA discrimination claim, which does not suggest retaliation.
Accordingly, no reasonable jury could conclude on the evidence in the record that Macy was fired
in retaliation for protected conduct, and we affirm the district court’s decision granting summary
judgment to the Board on Macy’s retaliation claims.
8
The administrative tribunal also concluded that Macy had committed a number of other infractions, which
in many cases would conclusively establish that Bush and Macy were not similar in all relevant aspects. However, the
other incidents came to Stevens’s attention because of the investigation that he ordered into Macy’s work performance.
Stevens did not order a similar investigation into Bush’s work performance. Thus, if a reasonable jury could conclude
that Bush and Macy engaged in conduct of comparable seriousness, the jury could also conclude that Stevens’s decision
to investigate and eventually fire Macy but not to investigate Bush shows that the proffered reason was pretextual.
9
We do not mean to suggest that the only way that Macy could have survived the Board’s motion for summary
judgment on this issue was by showing that Bush’s statement was overheard by the student and was thus functionally
the same as a direct threat. Because “precise equivalence in culpability” is not required, McDonald, 427 U.S. at 283
n.11, Macy needed only to introduce evidence from which a reasonable jury could infer that Bush’s conduct was of
comparable seriousness. For example, Macy could have introduced evidence from which a reasonable jury could infer
that Bush’s comment was as or more harmful to those who heard it as Macy’s comment was to the group of boys that
she threatened, see Clayton v. Meijer, Inc., 281 F.3d 605, 612 (6th Cir. 2002), or evidence that Bush was or could have
been charged with as serious a crime as the terroristic-threatening-in-the-third-degree charge that Macy faced, see
Harrison v. Metro. Gov’t of Nashville & Davidson County, Tenn., 80 F.3d 1107, 1115-16 (6th Cir.), cert. denied, 519
U.S. 863 (1996), overruled on other grounds by Jackson v. Quanex Corp., 191 F.3d 647, 667 n.6 (6th Cir. 1999).
However, Macy has not pointed to this type of evidence or any other evidence from which a reasonable jury could
conclude that Bush’s conduct was as serious as Macy’s.
No. 06-5722 Macy v. Hopkins County Sch. Bd. of Educ. Page 12
C. State-Law Claims
Macy has not cited Kentucky law or even mentioned her state-law claims on appeal.
Accordingly, those claims are forfeited. See Reed, 167 F.3d at 993.
Macy’s state-law claims fail on the merits as well. “We interpret Kentucky protections for
the disabled consonant with the federal Americans with Disabilities Act.” Henderson v. Ardco, Inc.,
247 F.3d 645, 649 (6th Cir. 2001). Thus, the same analysis that applies to Macy’s federal claims
applies to her state-law claims, and we affirm the district court’s decision granting summary
judgment to the Board on Macy’s state-law claims.
III. CONCLUSION
Because Macy has not presented evidence from which a reasonable jury could conclude that
the Board’s proffered reason for firing her was pretextual, and because Macy has forfeited her
retaliation claims and state-law claims, we AFFIRM the judgment of the district court.