Myers v. Cuyahoga Cnty OH ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0383n.06
Filed: May 31, 2006
No. 05-3370
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SUSAN MYERS, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
CUYAHOGA COUNTY, OHIO et al., )
) OPINION
Defendants-Appellees. )
_______________________________________)
Before: MOORE, GRIFFIN, and CUDAHY,* Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Susan Myers (“Myers”)
brought this lawsuit against Defendants-Appellees Cuyahoga County, the Cuyahoga County Board
of Commissioners, Elsie Caraballo, and Luis Vazquez (referred to collectively as “Cuyahoga
County” or “the County”), claiming that Cuyahoga County failed to make reasonable
accommodations as required by the Americans with Disabilities Act (“ADA”) and terminated her
because of her race and sex in violation of Title VII, 42 U.S.C. § 1983, and the Ohio Revised Code
§ 4112. Myers alleges that Cuyahoga County failed to provide reasonable accommodation for her
Adjustment Disorder and terminated her because she is white and a transsexual person. The district
court concluded that Myers had failed to establish any genuine issues of material fact on her
*
The Honorable Richard D. Cudahy, United States Court of Appeals for the Seventh Circuit,
sitting by designation.
discrimination claims or her § 1983 claim, and granted summary judgment to Cuyahoga County.
Myers now appeals the dismissal of her ADA and Title VII claims. For the reasons explained
below, we AFFIRM the district court’s grant of summary judgment to Cuyahoga County.
I. FACTS AND PROCEDURE
Myers is a white transsexual woman who began working for the Cuyahoga County
Department of Health and Human Services in 1982. At the time of her termination in April 2000,
Myers was working for the Cuyahoga County Work and Training Agency as a Team Leader/Social
Service Supervisor. Myers worked for Cuyahoga County for over sixteen years without any
disciplinary problems or incidents. In July 1998, Myers unsuccessfully competed for a promotion
to a supervisory role; appellee Elsie Caraballo, a Hispanic woman, was awarded that promotion.
Caraballo became Myers’s direct supervisor, and appellee Luis Vazquez, a Hispanic man, was
Caraballo’s direct supervisor. At that point, Myers’s relationship with Caraballo began to
deteriorate, and tensions between the two women increased. Myers alleges that after Caraballo
became her supervisor, “Carabello, aided by Vazquez, began systematically working to
constructively discharge Plaintiff by pretextually finding fault with Plaintiff’s work, and
intentionally maintaining Plaintiff in an artificially and unnecessarily stressful work environment.”
Joint Appendix (“J.A.”) at 22 (Compl. at ¶ 4). Myers claims that Caraballo and Vazquez disliked
her because she was not Hispanic and did not speak Spanish and because as a transsexual woman,
she did not conform to their “gender/sex stereotyped expectations.” Appellant Br. at 11.
Cuyahoga County denies these allegations, and responds that Myers was terminated for
“failure of good behavior and discourteous treatment to the public” after Myers committed many
serious disciplinary offenses during the months prior to her removal. J.A. at 374 (Order of Removal
2
at 1) (capitalization removed). The County claims that Myers committed twelve “racial and
inappropriate acts that are violations of Section 4.0 of the Cuyahoga County Policies and Procedures
Manual” between September 17, 1998 and November 23, 1999. J.A. at 374-76 (Order of Removal
at 1-3). The County alleges that on numerous occasions, Myers was rude and unprofessional to
clients and co-workers, that she made derisive comments about Hispanic and Spanish-speaking
people and poor people receiving public benefits, and that she inappropriately expressed her
opinions about the personal life choices of her clients. On August 13, 1999, Appellee Caraballo
issued Myers a written reprimand for “argumentative and resistant behavior” allegedly occurring
on May 13, 1999, and June 16, 1999. J.A. at 396 (Aug. 13, 1999 Written Reprimand). Cuyahoga
County claims that Myers also failed to complete necessary job assignments, for which Myers was
given a written reprimand for neglect of duty on August 16, 1999. The County conducted two pre-
disciplinary conferences to consider Myers’s alleged infractions in August and December of 1999,
and Myers attended and participated in these conferences. Cuyahoga County claims that during
these conferences, Myers did not refute her actions in the incidents, but rather blamed her clients and
co-workers for the conflicts. Myers was placed on administrative leave after the December 1999
conference, and on April 18, 2000, the Board of Cuyahoga County Commissioners ordered her
removal effective April 29, 2000.
Myers first filed suit against Cuyahoga County in January 2003 alleging that the County
illegally discriminated against her on the basis of disability, race, and sex, but that case was
dismissed without prejudice for want of prosecution. J.A. at 14 (Oct. 6, 2003 Order). Myers refiled
those same claims in this case on March 23, 2004, and Cuyahoga County filed its answer on May
18, 2004. Myers did not conduct any discovery. Cuyahoga County deposed Myers and Father
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Howard Ziemba, a Catholic Priest, who had written a letter on Myers’s behalf. Father Ziemba, a
former co-worker and friend of Myers, knew Myers from when Ziemba worked as a work and
training coach for Cuyahoga County from sometime in 1994 through January of 2000. The County
filed a motion for summary judgment on December 13, 2004, and Myers filed a brief in opposition
and a motion to amend her complaint to conform to the evidence on January 13, 2005. On February
8, 2005, the district court granted Myers’s motion to amend as well as Cuyahoga County’s motion
for summary judgment. The district court concluded that Myers had failed to show that she is a
person with a disability and had not established a prima facie case of race or sex discrimination. The
district court also granted summary judgment to Cuyahoga County on Myers’s § 1983 due process
claim, but Myers has not appealed the dismissal of that claim. Myers filed a timely notice of appeal.
II. ANALYSIS
Granting summary judgment to a party is appropriate “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
moving party bears the burden of showing the absence of any genuine issues of material fact, after
which the burden then shifts to the nonmoving party to produce evidence demonstrating that a
genuine issue remains. Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). The court
must believe the evidence presented by the nonmoving party, and draw all justifiable inferences in
its favor. Id. The party opposing summary judgment must, however, “do more than simply 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). Summary judgment is proper when the nonmoving party
4
has had adequate time for discovery and yet “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, 477 U.S. at 322.
A. Myers’s Disability-Discrimination Claim
Myers originally alleged that she was disabled by depression and that Cuyahoga County
failed to make a reasonable accommodation by refusing to grant her a job transfer to a different
position with the Department of Health and Human Services. Myers requested to be transferred to
another location three times — in the fall of 1998, March or April 1999, and November 1999 — but
did not state that her requests for a transfer were related to her depression. J.A. at 244-45 (Myers
Dep. at 114-15).1 In its motion for summary judgment, Cuyahoga County argued that it was entitled
to judgment as a matter of law on Myers’s disability claim, because two written statements from
Myers’s own doctors stated in June 1999 that Myers was not suffering from depression and was able
to work. One of Myers’s treating physicians stated that she “has no medical condition that would
render her unable to work,” J.A. at 456 (Allsop Letter), and the physician who was treating her for
depression stated that Myers’s depressive symptoms were “well-controlled with medication” and
that Myers “should be able to tolerate usual levels of job-related stresses.” J.A. at 457 (Pallas
Letter).
Myers was also examined by Dr. Mary Louise Miller in August 1999 at Cuyahoga County’s
request in order to determine her fitness for duty and possible workplace accommodations. Miller
1
Myers admitted in her deposition that she had three reasons for wanting the transfer: (1)
the building where she was working was in bad condition and in an unsafe neighborhood; (2) she
did not wish to be supervised by Caraballo; and (3) she wished to work in a location more
convenient to her home. J.A. at 246-47 (Myers Dep. at 116-17).
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concluded that Myers’s depression was in remission, a fact that Cuyahoga County also relied upon
in its summary judgment motion. In her memorandum opposing summary judgment, Myers
admitted that she could not state a depression-based ADA claim, but moved to amend her complaint
to assert an ADA claim on the basis of her Adjustment Disorder-unspecified diagnosis, which was
an additional diagnosis made by Dr. Miller. Myers also argued that Dr. Miller’s statement that she
believed “it would be helpful to Ms. Myers mental functioning for her to be granted the reasonable
accommodation of reassignment to a different location and supervisor” required the district court
to deny defendants’ motion for summary judgment on her ADA claim. J.A. at 455 (Miller Report
at 6).
Although the district court granted Myers’s motion to amend in order to allow her to assert
an ADA claim based upon the Adjustment Disorder diagnosis, the court granted summary judgment
to Cuyahoga County because it concluded that Myers had not shown that the Adjustment Disorder
is a disability as defined by the ADA. Upon review of this issue, we conclude that Myers has failed
to show that she is disabled as defined by the ADA.
In order to establish a prima facie of disability discrimination under the ADA for failure to
accommodate, a plaintiff must show that: (1) she is disabled within the meaning of the Act; (2) she
is otherwise qualified for the position, with or without reasonable accommodation; (3) her employer
knew or had reason to know about her disability; (4) she requested an accommodation; and (5) the
employer failed to provide the necessary accommodation. See DiCarlo v. Potter, 358 F.3d 408, 419
(6th Cir. 2004).2 We use the same analysis for claims of disability discrimination under Ohio law.
2
Although DiCarlo dealt with a disability discrimination claim by a federal employee and
therefore was brought under the Rehabilitation Act of 1973, this court has held that analysis of
claims brought under the ADA “roughly parallels” those brought under the Rehabilitation Act.
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Brenneman v. Medcentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004). Once an ADA plaintiff
establishes a prima facie case for failure to accommodate, “the burden shifts to the employer to
demonstrate that the employee cannot reasonably be accommodated, because the accommodation
would impose an undue hardship on the operation of its programs.” DiCarlo, 358 F.3d at 419
(internal quotation marks omitted). A “disability” under the ADA is defined as “a physical or
mental impairment that substantially limits one or more of the major life activities of such
individual,” “a record of such an impairment,” or “being regarded as having such an impairment.”
42 U.S.C. § 12102(2). “Major [l]ife [a]ctivities means functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”
29 C.F.R. § 1630.2(i).
Myers “bears the burden of establishing as an element of her prima facie case the existence
of an impairment that substantially limits a major life activity.” Doren v. Battle Creek Health Sys.,
187 F.3d 595, 598 (6th Cir. 1999). The district court is correct that in her memorandum in
opposition to Cuyahoga County’s motion for summary judgment, Myers did not address whether
her Adjustment Disorder substantially limits one or more major life activity, an omission she repeats
on appeal. In viewing the evidence in the light most favorable to Myers, we infer that Myers is
claiming that her Adjustment Disorder substantially limits her ability to work. However, Myers has
not produced any evidence that she was substantially limited in her ability to work because of her
Adjustment Disorder. Instead, she points only to Dr. Miller’s statements that she “may have [had]
intermittent irritability” if she remained in her current location and that her Adjustment Disorder was
Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
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“impacting on her current abilities in the present work environment.” J.A. at 455 (Miller Report at
6).
The possibility of intermittent irritability from her Adjustment Disorder is insufficient to
establish the first step of Myers’s prima facie burden. “[T]he word ‘substantial’ clearly . . .
precludes impairments that interfere in only a minor way with the performance of [the major life
activity] from qualifying as disabilities.” Black v. Roadway Express, Inc., 297 F.3d 445, 451 (6th
Cir. 2002) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (second
alteration in original)). The intermittent irritability that Myers might have experienced from her
Adjustment Disorder if she remained in her existing employment location appears to be exactly the
sort of minor interference with a major life activity that the Supreme Court views as falling short
of the definition of a disability under the ADA. Furthermore, the Court stated that it is insufficient
for individuals attempting to establish that they are disabled under the ADA “to merely submit
evidence of a medical diagnosis of an impairment. Instead, the ADA requires those claiming the
Act’s protection . . . to prove a disability by offering evidence that the extent of the limitation
[caused by their impairment] in terms of their own experience . . . is substantial.” Toyota Motor
Mfg., 534 U.S. at 198 (internal quotation marks omitted) (alterations in original). Myers
misguidedly attempts to rely upon her Adjustment Disorder diagnosis alone as the basis for her
claim that she is disabled under the ADA, and therefore allegedly entitled the reasonable
accommodation of a job transfer. Myers has not offered any evidence about the limitations on her
ability to work caused by her Adjustment Disorder, let alone that the impairment’s effects were
substantial. We AFFIRM the district court’s conclusion that Myers has failed to establish that she
8
is disabled as defined by the ADA, and therefore she is unable to defeat Cuyahoga County’s motion
for summary judgment on her ADA claim.
B. Myers’s Race-Discrimination Claim
Myers also claims that she was terminated in violation of Title VII and Ohio law3 because
she is white (rather than Hispanic) and is non-Spanish speaking. The district court granted summary
judgment to Cuyahoga County because it held that Myers had not established a prima facie case of
reverse race discrimination. In order to establish a prima facie case of discrimination, Myers must
show that (1) she is a member of a protected class; (2) she was qualified for the job; (3) she
experienced an adverse employment action; and (4) she was replaced by a person outside the
protected class or she was treated differently than a similarly situated non-protected employee. See
Newman v. Federal Express Corp., 266 F.3d 401, 406 (6th Cir. 2001). In reverse-discrimination
cases, in order to establish the first step, a plaintiff must demonstrate “background circumstances
[to] support the suspicion that the defendant is that unusual employer who discriminates against the
majority.” Leadbetter v. Gilley, 385 F.3d 683, 690 (6th Cir. 2004) (internal quotation marks
omitted).
The district court found Myers’s prima facie case lacking at the fourth step because it
correctly concluded that Myers had not addressed whether Cuyahoga County treated differently
employees who were similarly situated but not members of Myers’s protected class. The district
court failed to consider, however, that Myers could also establish the fourth step of her prima facie
3
Under Ohio law, Myers’s race and sex discrimination claims under Ohio Revised Code
§ 4112 are analyzed according to the same standards used to analyze federal discrimination claims
under Title VII. See, e.g., Cincinnati Bar Ass’n. v. Young, 731 N.E.2d 631, 639 (Ohio 2000) (stating
that it is the practice of the Ohio courts, “where appropriate, to refer to federal case law interpreting
Title VII” when analyzing discrimination claims brought under O.R.C. § 4112).
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burden by showing that she was replaced by someone who was outside her protected class. See
Newman, 266 F.3d at 406. Considering that approach to the fourth step of her prima facie burden,
we conclude that Myers has put forth a prima facie case of reverse race discrimination. First, Myers
has presented background circumstances that support her suspicion that Cuyahoga County
discriminated against non-Hispanics. Father Ziemba testified at his deposition that “Mr. Vazquez
and Mrs. Caraballo were working very diligently to try to have a basically Hispanic welfare office
to meet the needs of the Hispanic community in that part of Cleveland.” J.A. at 353-54 (Ziemba
Dep. at 22-23). Ziemba also stated that in their efforts “to get this Hispanic office going,” Vazquez
and Caraballo “tended to be over zealous.” J.A. at 354 (Ziemba Dep. at 23). Next, the parties do
not dispute that Myers was qualified for her position or that she experienced the adverse
employment action of being terminated. Finally, Myers has established the fourth step because she
claims, both in her complaint and her appellate brief, that she was “replaced by a Hispanic, Spanish-
speaking employee” — a fact that has not been disputed by Cuyahoga County. J.A. at 22 (Compl.
at ¶ 5); Appellant Br. at 11.
As Myers has established a prima facie case of reverse race discrimination, the burden shifts
to Cuyahoga County “to offer a legitimate, non-discriminatory reason for the adverse employment
action at issue.” Leadbetter, 385 F.3d at 690. The County has satisfied this burden by offering the
legitimate, non-discriminatory reason of the numerous, well-documented disciplinary offenses that
Myers committed. These disciplinary offenses were the result of many complaints by Myers’s
clients and co-workers about her insulting and unprofessional behavior, including her negative
comments about people who are foreign-born. “Once the defendant has articulated a
nondiscriminatory reason for its decision, the presumption of discrimination that arises from the
10
plaintiff's prima facie case disappears and the plaintiff must have the opportunity to show that the
defendant's proffered explanation is merely a pretext for discrimination.” Weigel v. Baptist Hosp.
of East Tenn., 302 F.3d 367, 378 (6th Cir. 2002). Our court has recognized that a plaintiff can
establish pretext in one of three ways. “To make a submissible case on the credibility of his
employer's explanation, the plaintiff is required to show by a preponderance of the evidence either
(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually
motivate his discharge, or (3) that they were insufficient to motivate discharge.” Manzer v. Diamond
Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (internal quotation marks omitted).
Myers has not shown that Cuyahoga County’s proffered explanation is pretextual in any of
these three ways. In the one page of her appellate brief devoted to her race-discrimination claim,
Myers does not refute the County’s stated reason for her termination nor does she point to any
evidence that the County’s claim that she was terminated because of her disciplinary problems was
a pretext for discrimination because she is not Hispanic. Appellant Br. at 21. Although she alleges
in her complaint that Caraballo solicited the complaints against her that resulted in the disciplinary
offenses, Myers has not presented any evidence whatsoever to support this assertion. Myers has
been unable to raise a genuine issue of material fact with respect to whether the proffered reason of
her numerous disciplinary offenses is a pretext for unlawful race discrimination, and so we AFFIRM
the district court’s grant of summary judgment to Cuyahoga County on Myers’s race-discrimination
claim.
C. Myers’s Sex-Discrimination Claim
Myers’s final claim on appeal is that the district court erred in granting summary judgment
to Cuyahoga County on her sex-discrimination claim. Myers argues that Caraballo and Vazquez
11
sought her termination because she did not conform to their sex and gender stereotypes. Myers
claims that the County either considered her
to be a masculine woman who did not sufficiently conform to their expectations of
what a woman should look and/or act like; or they suspected that she was originally
born male and viewed her as a man who violated their expectations of persons born
male by identifying as female, transitioning genders from male to female, and
expressing a feminine personality and disposition.
J.A. at 23 (Compl. at ¶ 6). Myers transitioned to being a female person around 1973 or 1974, and
so she had always been female while she was employed by Cuyahoga County. The County was
aware that Myers was a transsexual, however, because during the initial hiring process with the
County, Myers had explained that her many-year absence from the workforce and her name change
were due to her sex change. As with her other claims, Myers did not conduct any discovery
pertaining to her sex-discrimination claim, and relies only upon Cuyahoga County’s deposition of
Father Ziemba in which Ziemba stated that Myers’s transsexualism was a topic of office gossip and
that he once overheard a private conversation between Caraballo and Vazquez in either 1996 or 1997
in which Vazquez referred to Myers as a “he/she.” J.A. at 347-50 (Ziemba Dep. at 16-19).
Title VII protects transsexual persons from discrimination for failing to act in accordance
and/or identify with their perceived sex or gender. Barnes v. City of Cincinnati, 401 F.3d 729 (6th
Cir. 2005); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004). “Sex stereotyping based on a
person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause
of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the
victim has suffered discrimination because of his or her gender non-conformity.” Smith, 378 F.3d
at 575. Myers’s prima facie burden for her gender nonconformity claim is the standard prima facie
burden for Title VII plaintiffs claiming that they have been terminated as a result of illegal
12
discrimination. Myers must show that (1) she is a member of a protected class; (2) she experienced
an adverse employment action; (3) she was qualified for the position in question; and (4) she was
replaced by a person outside the protected class or she was treated differently than a similarly
situated non-protected employee. See Smith, 378 F.3d at 570; Newman, 266 F.3d at 406.
In her appellate brief, Myers does not address whether or not she has established her prima
facie burden, but rather she argues that the district court erroneously granted summary judgment to
Cuyahoga County because it was requiring her to use “magic words” in her complaint and
subsequent proceedings. Appellant Br. at 22. This is the incorrect legal standard for a plaintiff
attempting to survive summary judgment. In order to defeat summary judgment, Myers, who had
the opportunity to conduct discovery to develop her case but chose not to initiate discovery, must
show that a genuine issue of material fact remains as to her sex-discrimination claim. From our
review of the record, we conclude that Myers is unable to meet that burden.
The district court is correct that there is no dispute that Myers has satisfied the first three
steps of her prima facie burden. The district court granted summary judgment to Cuyahoga County,
however, because it concluded that Myers had failed to meet the fourth step of her prima facie
burden because she had not shown that she was treated differently from similarly situated
individuals outside the protected class. Again, the district court did not recognize that Myers could
meet the fourth step by showing that she was replaced by person outside the protected class. See
Newman, 266 F.3d at 406. However, Myers has not alleged, let alone provided any evidence
showing, that she was replaced by a gender-conforming person. Furthermore, at oral argument,
Myers’s attorney admitted that she did not know whether or not Myers’s replacement was gender-
conforming. We will therefore assume for the sake of argument only that Myers’s replacement was
13
gender-conforming and that she has met her prima facie burden. Nevertheless, we conclude that
Myers has failed to demonstrate a genuine issue of material fact that Cuyahoga County’s proffered
non-discriminatory reason for terminating her — her plentiful disciplinary infractions — was a
pretext for sex discrimination because she is gender-nonconforming.
As explained above, Cuyahoga County’s articulated nondiscriminatory reason for
terminating Myers is her well-documented history of disciplinary offenses. The burden then shifts
back to Myers to show that this proffered reason is a pretext for illegal sex discrimination.
“‘[A] plaintiff's prima facie case, combined with sufficient evidence to find that the
employer's asserted justification is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated,’ although such a showing might not ‘always be adequate to sustain a jury's
finding of liability.’” Weigel, 302 F.3d at 378 (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148 (2000)). Unfortunately for Myers, she has failed to produce sufficient evidence
to create a genuine issue as to pretext. Myers has been unable to show either that the County’s
articulated reason of her disciplinary offenses has no basis in fact, that the disciplinary offenses did
not actually motivate the County’s decision to discharge her, or that the disciplinary infractions are
insufficient to motivate her discharge. See Manzer, 29 F.3d at 1084.
The only evidence in the record that could be considered evidence of pretext is Father
Ziemba’s deposition testimony that he once heard Vazquez, when speaking privately to Caraballo,
refer to Myers as a “he/she.” J.A. at 347-50 (Ziemba Dep. at 16-19). At oral argument, Myers relied
entirely upon this incident to support her sex-discrimination claim. We agree with Myers that
calling a transsexual or transgendered person a “he/she” is a deeply insulting and offensive slur, and
we agree that using that term is strongly indicative of a negative animus towards gender
14
nonconforming people. In the context of all the evidence in this case, however, we cannot conclude
that the statement by itself is sufficient to create a jury question on the issue of pretext. The “he/she”
incident is the only incident Myers proffers as proof of pretext. That isolated remark was remote
in time from Myers’s termination — the remark was made sometime in 1996 or 1997, several years
before the problems with Myers’s performance in late 1998 and 1999 that led to her disciplinary
offenses and ultimately her termination — and there is no evidence that the remark was related to
Cuyahoga County’s decision to terminate her. See Weigel, 302 F.3d at 379.
Additionally, there is significant evidence to support Cuyahoga County’s claim that the
proffered reason for terminating Myers — that she was behaving in inappropriate and insulting ways
towards her co-workers and clients — is credible and genuine. Had Myers been able to produce any
evidence to call into question the legitimacy of Cuyahoga County’s stated reason for firing her,
perhaps by discovering some evidence that the disciplinary complaints against her were exaggerated
or solicited by Caraballo, then that evidence in combination with the “he/she” comment might have
been sufficient to raise a jury question on the issue of pretext. But Myers has not presented a shred
of evidence to undermine the credibility of the County’s explanation for her termination. Given the
significant and unrebutted evidence of Myers’s disciplinary problems, the isolated “he/she” remark,
without more, is not sufficient to create a jury question as to pretext. Myers is unable to defeat
Cuyahoga County’s motion for summary judgment, and so we AFFIRM the district court’s grant
of summary judgment on her sex-discrimination claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to
Cuyahoga County on all of Myers’s claims.
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