Stephen Becker v. Elmwood Local School District , 519 F. App'x 339 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0448n.06
No. 12-3094
FILED
UNITED STATES COURT OF APPEALS May 03, 2013
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
STEPHEN J. BECKER, )
)
Plaintiff-Appellant, )
)
v. )
) ON APPEAL FROM THE UNITED
ELMWOOD LOCAL SCHOOL DISTRICT, ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
Defendant-Appellee. ) OHIO
)
Before: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.*
PER CURIAM. Stephen J. Becker, an Ohio citizen, appeals through counsel the summary
judgment for Defendant Elmwood Local School District, his former employer, in a case he filed
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; and Ohio law.
Becker was employed by Defendant as a fourth-grade teacher from 2001 to 2009. He
acknowledges suffering from obsessive compulsive disorder and anxiety. He reported his conditions
to his building’s new principal, Michelle Tuite, in 2006, although he stated that they did not affect
his performance and required no accommodation.
*
The Honorable Thomas L. Ludington, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 12-3094
Becker v. Elmwood Local Sch. Dist.
In May 2007, during Becker’s lunch period, Tuite called Becker into her office to reprimand
him for yelling at students in the hallway. Tuite testified at her deposition that Becker became
agitated and repeatedly asked to leave her office. When Becker left the meeting, Tuite followed him
and observed that “he was no longer in a rational state of mind.” Becker concedes that he left school
mid-day, but asserts that he “followed protocol” by asking another teacher to serve as a substitute
for his class. Becker testified that he felt that he had to leave school after the reprimand because his
anxiety “got high” and “there was no way [he] could function for the remainder of the day.” Tuite
reported the incident to Steve Pritts, Elmwood’s Superintendent, who ordered an informal lockdown
of the school, disabled Becker’s electronic swipe access card, and asked that the police be dispatched
to Becker’s house to check on his well being.
Also near the end of the 2006-2007 school year, the school’s administration received an e-
mail from a school employee and mother of a former student reporting that Becker had been calling
her son, now a college student, repeatedly. The school investigated the matter and determined that
nothing inappropriate had occurred while the boy was a student at Elmwood. Becker ceased
communication with him. However, Becker was placed on paid administrative leave for the
remainder of the year while an investigation was pending. That summer, Becker filed disability
discrimination charges with the Equal Employment Opportunity Commission (EEOC) and Ohio
Civil Rights Commission.
Defendant decided to rehire Becker for the next school year. Becker received mixed
performance reviews during the 2007-2008 year, and the school offered him another one-year
contract. His first performance review of the 2008-2009 school year was positive, but the second,
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Becker v. Elmwood Local Sch. Dist.
conducted in February 2009, was far more negative than any he had previously received. Becker
points out that he was reviewed shortly after a fourth-grader had died, when both he and his students
were in a grieving period. Tuite conducted three more reviews of Becker’s classroom performance.
Two were positive and one negative. Becker contends that the one negative review occurred because
he was attempting to teach remedial math, a subject he had not taught all year because his specialty
was social studies. On March 31, 2009, Tuite informed Becker that she would not recommend that
he be rehired for the next school year, when the school would have been required to offer him
permanent employment due to his length of service. Becker attempted to grieve this decision, but
he ultimately submitted a letter of resignation on April 20, 2009, after being informed that if he did
not resign the school board would not renew his contract at its meeting later that day. Becker
believed that non-renewal of his contract would greatly reduce any chance of obtaining a position
at another school.
After filing a discrimination complaint with the EEOC, Becker filed this lawsuit alleging that
Defendant had discriminated against him based on his sex, a perceived disability, and in retaliation
for his previous EEOC filings. After conducting discovery, Defendant moved for summary
judgment, and Becker responded. The district court granted Defendant’s motion. Becker reasserts
each of his claims on appeal.
We review de novo the award of summary judgment. Watkins v. City of Battle Creek, 273
F.3d 682, 685 (6th Cir. 2001). In this case, because Becker has no direct evidence of discrimination,
he must establish a prima facie case of discrimination through indirect evidence, after which
Defendant is required to proffer a legitimate, non-discriminatory reason for his termination, which
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Becker v. Elmwood Local Sch. Dist.
Becker then has the burden of showing was a pretext for discrimination. See Whitfield v. Tenn., 639
F.3d 253, 259 (6th Cir. 2001).
In order to establish a prima facie case of reverse sex discrimination, Becker was required
to show that Defendant is the unusual employer who discriminates against men, that he was qualified
for his teaching position, that Defendant took an adverse action against him, and that he was treated
differently from similarly situated women. See Simpson v. Vanderbilt Univ., 359 F. App’x 562, 568-
69 (6th Cir. 2009); Arendale v. City of Memphis, 519 F.3d 587, 603-04 (6th Cir. 2008). Here we
only need to consider whether Becker was treated differently from similarly situated women. The
district court found that although Becker argued that his female co-workers received poor evaluations
and still had their contracts renewed, none of these co-workers had been accused of harassing former
students with telephone calls, or had reacted to criticism so strangely that they were locked out of
the building and placed on administrative leave. Becker argues that the district court employed the
similarly-situated portion of the prima facie case too narrowly, citing Martin v. Toledo Cardiology
Consultants, Inc., 548 F.3d 405, 412 (6th Cir. 2008). However, we conclude that the district court
was correct in its analysis and that Becker, therefore, failed to establish a prima facie case of reverse
sex discrimination.
In order to establish a prima facie case of retaliation, Becker was required to show that he
engaged in protected activity that was known to Defendant, an adverse action was taken against him,
and there was a causal connection between the activity and the adverse action. See Arendale, 519
F.3d at 606. The district court found that Becker had not established a causal connection between
the EEOC charges filed in 2007 and the recommendation not to renew Becker’s contract in 2009.
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Becker v. Elmwood Local Sch. Dist.
We agree. Becker was given one-year renewals for the school years ending in 2008 and 2009. He
has not established any causal connection between his protected activity and Defendant’s decision
two years later. We therefore agree that Becker did not establish a prima facie case of retaliation.
In order to establish a prima facie case of disability discrimination, Becker was required to
show that he was disabled or regarded by his employer as disabled, he was qualified for his position,
an adverse action was taken against him, Defendant knew of his disability, and he was replaced.
Whitfield, 639 F.3d at 259. The district court found that Becker had not established that an adverse
action was taken against him, because he submitted a letter of resignation. However, in this circuit,
we have found a constructive discharge where a resigning employee reasonably believed his
termination was imminent, or where he was given the option of retiring or being laid off. See Ford
v. Gen. Motors Corp., 305 F.3d 545, 554 (6th Cir. 2002); Scott v. Goodyear Tire & Rubber Co., 160
F.3d 1121, 1128 (6th Cir. 1998). Here, Pritts testified that he told the union representative that he
needed Becker’s resignation letter by 3 p.m. on April 20, 2009, or he would be terminated. Multiple
witnesses agreed that if his contract was not renewed, Becker would have difficulty obtaining a
position at another school. Becker’s circumstances go beyond those cases cited above, in that the
threat was not just to his current job, but to his career. We therefore find that Becker established an
adverse action in the form of a constructive discharge.
The burden therefore shifts to Defendant to offer a legitimate, nondiscriminatory reason for
its decision. Here, Defendant argues that it decided against renewing Becker’s contract because he
was a substandard teacher. In support, the defendant points to four problems that Becker had from
2007 to 2009: the harassing phone calls that Becker made to a former student, the incident where
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Becker left the school after the principal criticized him, his mixed performance reviews, and his
resistence to suggestions for improvement. Given this problematic history, the defendant declined
to renew Becker’s contract. “Poor performance is a legitimate non-discriminatory reason for
terminating an employee.” Stockman v. Oakcrest Dental Ctr., P.C., 480 F.3d 791, 802 (6th Cir.
2007) (citation omitted).
When an employer offers nondiscriminatory reasons for an adverse employment action, the
burden shifts back to the employee to prove that the stated reason for the termination is pretextual.
See Blizzard v. Marion Technical College, 698 F.3d 275, 284 (6th Cir. 2012). Thus, Becker has the
burden to produce sufficient evidence from which a jury could reasonably reject Elmwood’s
explanation of why it constructively discharged him. Id. (citing Chen v. Dow Chem. Co., 580 F.3d
394, 400 (6th Cir. 2009) (internal quotation marks and brackets removed)).
As to pretext, Becker makes three arguments. First, he points to Defendant’s decision to
“departmentalize” the fourth grade for the 2008–2009 school year, which resulted in Becker teaching
one subject (social studies) rather than multiple subjects. Becker’s burden is to establish that
Defendant’s proffered reason is pretextual. Defendant did not identify its decision to
departmentalize the fourth grade as part of its legitimate, nondiscriminatory reason for not renewing
Becker’s contract. Becker contends that, at the time, Defendant stated that it needed to
departmentalize the fourth grade because new teachers were only certified to teach two subjects, but
that Defendant later claimed that it made that decision “[s]o that Mr. Becker’s less-than-satisfactory
techniques and tones would affect fewer students and play to his strength[.]” Becker notes that the
fourth grade remained departmentalized after his resignation, undermining Defendant’s later
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explanation. Assuming that Defendant’s explanation for departmentalizing changed from benign
to maligning Becker’s teaching ability, the fact remains that Becker failed to provide sufficient
evidence of pretext with respect to Defendant’s proffered reasons for not renewing his contract.
Second, Becker argues that his performance reviews are evidence of pretext. He contends
that Defendant set him up for negative evaluations by observing him at inopportune times. For
example, one of Becker’s evaluations occurred one week after a fourth-grade student had died, and
another occurred when Becker was teaching math, a subject he had not taught all year. Becker also
contends that his other evaluations show “a continuing pattern of improvement.” But these reviews
are not as positive as Becker asserts. Becker’s evaluation in October 2007 was fairly poor, and his
reviews in February 2008 and November 2008 both included criticisms. Even if we discount the two
reviews that Becker contends were set-ups, the evaluations are still mixed at best. And they are
certainly not positive enough to erase Becker’s troubled history at the school. So these reviews do
not demonstrate that the reason for Defendant’s decision to not rehire Becker was pretextual.
Finally, Becker argues that Defendant “never made it completely clear” that the problems that
occurred in the spring of 2007 were part of its legitimate, nondiscriminatory reason for not renewing
his contract. Thus, he says, we should not consider them. But Defendant specifically relied on those
problems and concerns about Becker’s professionalism in both its motion for summary judgment and
its brief here. So this argument is meritless.
The district court’s judgment is affirmed.
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