Kenitha Laney v. Ohio Department of Youth Services ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0769n.06
FILED
No. 10-3822
Nov 16, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
KENITHA LANEY, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
OHIO DEPARTMENT OF YOUTH SERVICES, ) THE SOUTHERN DISTRICT OF
) OHIO
Defendant-Appellee. )
)
)
Before: KENNEDY, GIBBONS, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Kenitha Laney appeals the district court’s grant of summary
judgment with respect to her employment discrimination claims. Because her employer had ample
performance-related reasons for terminating her, we affirm.
I.
Laney’s job was supervising youths detained at Marion Juvenile Correctional Facility. New
Juvenile Corrections Officers like Laney go through a one-year probationary period during which
their employment is at will. Officers who make it through this period get some job security via
union representation and a collective bargaining agreement. Laney did not make it through the
period. About three weeks before the end of probation, a supervisor at the Department of Youth
Services asked her to resign, which she eventually did. The Department says it asked her to resign
No. 10-3822
Laney v. Ohio Dep’t Youth Serv.
because she had been bringing contraband to the youth, sleeping on the job, and otherwise acting
unprofessionally. Laney says her departure was due at least in part to her race, sex, religion, or
threats to report discrimination. She brought this lawsuit, alleging violations of federal employment
discrimination law. Eventually the district court granted summary judgment to the Department. This
appeal followed.
II.
We review the district court’s grant of summary judgment de novo. See Spees v. James
Marine, Inc., 617 F.3d 380, 388 (6th Cir. 2010).
Laney primarily raises mixed-motive claims. That is, she acknowledges that her poor
performance may have been one reason for firing her, but she thinks impermissible reasons
influenced the Department as well. See 42. U.S.C. § 2000e-2(m); White v. Baxter Healthcare Corp.,
533 F.3d 381, 396–97 (6th Cir. 2008). To prevail on such a claim, Laney must “produce evidence
sufficient to convince a jury that” her race, religion, or sex was “a motivating factor” in the
employer’s adverse employment action. White, 533 F.3d at 400 (internal quotation marks omitted).
Laney contends that a jury could infer impermissible motives for her termination from the
fact that other correctional officers (who were not black Muslim women as she was) performed just
as badly as she did, but were not disciplined or fired. Many of these officers were no longer on
probation, however, and thus were harder to fire than Laney. Hence they are not comparable
employees. See, e.g., Cooper v. North Olmstead, 795 F.2d 1265, 1270–71 (6th Cir. 1986).
So Laney is left with four comparables: probationary officers Halverson, Tate, Glass, and
Smiley. But first Laney must show that her conduct was sufficiently similar to theirs. See Graham
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v. Best Buy Stores, L.P., 298 F. App’x 487, 495 (6th Cir. 2008). Laney fails that test. The
Department had overwhelming evidence of her poor job performance: numerous complaints about
inappropriate behavior with youths, reports that she brought them contraband, arguments with
coworkers, failures to remain at her post, and two videos of her sleeping on the job. Laney did not
show that any probationary employees approached this collection of misconduct. Many of her
allegations about Tate and Glass are unsupported by any evidence, which is of course insufficient.
“[A] summary judgment opponent” must “make her case with a showing of facts that can be
established by evidence that will be admissible at trial.” Alexander v. CareSource, 576 F.3d 551,
558 (6th Cir. 2009). Likewise insufficient are her citations to rumor and other inadmissible hearsay.
See id. Laney does point to a fellow officer’s deposition testimony that he caught Halverson
sleeping. But Halverson denied he was asleep, so the officer never reported the incident. Laney can
hardly fault her employer for not meting out discipline for infractions it did not know about. A
supervisor did discover Smiley sleeping, but Smiley resigned shortly thereafter. Laney’s evidence
regarding similarly-situated employees therefore fails to raise a genuine issue of material fact as to
whether her termination was unlawful.
Laney’s other arguments are also unconvincing. She cites a determination by the Ohio Civil
Rights Commission that she had shown probable cause of discrimination. But that is a different
body applying a different standard than the one we apply here. Moreover, the letter gave no helpful
“factual material,” see Alexander, 576 F.3d at 562, so the district court was right to give it little
weight.
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Laney also points out that she was asked to (and did) remove a head-scarf she wore to work
one day. To survive summary judgment, however, Laney must have informed the Department that
she needed a religious accommodation to wear the scarf. See Reed v. United Auto Workers, 569 F.3d
576, 580 (6th Cir. 2009). Laney admitted she never followed the Department’s procedures in doing
so. That omission is fatal to this claim. See Knight v. State Dep’t of Pub. Health, 275 F.3d 156,
167–68 (2d Cir. 2001); Chaplin v. Du Pont Advance Fiber Sys., 124 F. App’x 771, 774 (4th Cir.
2005).
Finally, Laney contends that she complained of discrimination and harassment soon before
her termination. But there is no evidence that the superintendent who terminated her knew about
those complaints when he asked her to resign. Without such evidence, she cannot survive summary
judgment. See Mulhall v. Ashcroft, 287 F.3d 543, 551–54 (6th Cir. 2005). Moreover, the mere fact
that she complained does not raise an inference that she was terminated for that reason—especially
when her misconduct is the more obvious explanation. See Ladd v. Grank Trunk Western R.R., 552
F.3d 495, 502–03 (6th Cir. 2009). In sum, Laney did not provide evidence sufficient for a jury to
conclude that she was fired for any reason but her bad performance.
Laney alternatively raises single-motive claims—i.e., claims that her race, sex, religion, or
complaints were the only reason she was fired. But she has no evidence that would allow a jury to
find that all of the Department’s legitimate reasons for firing her were pretextual. See Chen v. Dow
Chem. Co., 580 F.3d 394, 400–01 (6th Cir. 2009). These claims therefore fail.
Finally, Laney brings a hostile work environment claim. In part, this claim is derivative of
the mixed-motive claim that we have already rejected. Beyond that, Laney vaguely alleges that her
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supervisor harassed her. But Laney does not say what actions she thinks were harassment. That her
supervisor pointed out deficiencies in her performance is not harassment, see Keever v. City of
Middletown, 145 F.3d 809, 813 (6th Cir. 1998); and at any rate it appears that her supervisor
imposed discipline uniformly. More troubling is an incident where another probationary officer
allegedly called her a “black bitch.” But such an isolated comment by a non-decisionmaker is not
enough to create a genuine issue for trial. See Ladd, 552 F.3d at 498, 501.
The district court’s grant of summary judgment is affirmed.
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