Walcott v. City of Cleveland

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0003n.06
Filed: January 3, 2005
No. 03-3979
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CLAUDETTE WALCOTT,
Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
CITY OF CLEVELAND, MICHAEL R. NORTHERN DISTRICT OF OHIO
WHITE, PINKEY S. CARR, CORNELL P.
CARTER,
Defendants-Appellees.
/
BEFORE: SUHRHEINRICH and CLAY, Circuit Judges; NIXON, District Judge.*
CLAY, Circuit Judge. Plaintiff, Claudette Walcott, contends in this employment
discrimination action that the district court erred in granting Defendants’ motion for summary
judgment for claims alleging race, sex, and age discrimination in violation of 42 U.S.C. §§ 1981,
1983 and Title VII, 42 U.S.C. § 2000e, et seq., the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq., and OHIO REV. CODE ANN. § 4112.14. Plaintiff argues that she satisfied her
prima facie burden of demonstrating race, age, and sex discrimination, and that she established that
*
The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by
designation.
No. 03-3979
Defendants’ proffered reasons for not promoting her were pretextual. Finally, Plaintiff maintains
that the district court abused its discretion in denying her motion for an extension of the discovery
deadline and for reconsideration of the same. For the reasons that follow, we AFFIRM the district
court.
BACKGROUND
Facts
Plaintiff, Claudette Walcott (“Walcott”) is an African-American woman born on November
7, 1955. She was hired as an attorney in the Labor and Employment Section (“Labor Section”) of
the City of Cleveland Law Department in September 1994. In October 1995, Lessie Milton
(“Milton”) became Labor Section Chief and Walcott’s supervisor. Walcott stated during her
deposition that she and Milton had a difficult working relationship, which became more strained in
June 1996 when Walcott requested time off because of fatigue and anemia. Walcott testified at her
deposition that after her requested leave was granted, she left a memo for Milton detailing the status
of her pending cases. Milton, in contrast, maintains that Walcott failed to apprise her of the status
of all of her cases, left her files in disarray, and allowed deadlines to be missed and a status
conference to go unattended.
After Walcott’s return to work in August 1996, she requested and was granted leave to
transfer to the Legislation Section of the City Law Department. She received her first performance
review on June 10, 1997, which was conducted by Milton and the Legislation Section Chief, Rick
Horvath. On a scale of zero to five, with zero reflecting unsatisfactory performance, two indicating
a performance that met expectations, and five representing outstanding performance, Walcott
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No. 03-3979
received scores between 1.5 and four, with an average of 2.64. Walcott’s lowest scores were for
“timely completion of tasks” and “assignment management,” while her highest were for “advocacy”
and “labor counsel.” In a memo to Jordan, Walcott objected to what she believed were unfair scores
from Milton.
Walcott’s review for the subsequent year was conducted by then-Legislation Chief Barbara
Langhenry on November 6, 1998. Her scores ranged from two to four, with an average of 2.9. Her
lowest scores were all twos, received for “assignment management,” “initiative,” “leadership,” and
“timely completion of assignments,” while her highest, both fours, were for understanding of
municipal law and “responsiveness and accountability for legal advice.”
In September 1998, defendant Cornell Carter (“Carter”) was named the City’s Director of
Law. Five months after his appointment, Carter demoted the Labor Section Chief. Walcott testified
that, in contrast to normal procedure, this position was not posted interdepartmentally.
In February 1999, Carter hired Michelle Macecevic (“Macecevic”) as Labor Section Chief.
Macecevic, a white woman who had served as Assistant Director of Law in the General Litigation
Department, did not have labor or employment experience at the time of her promotion. Walcott
cites Macecevic’s lack of experience as evidence of discrimination in the promotion decision; Carter
stated in an affidavit that Macecevic was selected for the position because her good working
relationship with the police department was valuable to the Labor Section and because of her strong
leadership skills and demonstrated initiative.
Approximately three months later, Carter and Milton requested that Walcott transfer back
to the Labor and Employment Section. Walcott refused but was involuntarily reassigned in the
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No. 03-3979
summer of 1999. In August 1999, Walcott filed a charge with the Equal Employment Opportunity
Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”), alleging that she was
discriminated against on the basis of her race and age when Macecevic was hired as Labor Section
Chief.
In September 1999, Carter reassigned Macecevic to Code Enforcement Section Chief, and
named as Labor Section Chief defendant Pinkey Carr (“Carr’), an African-American woman.
Several months later, Carter promoted Carr to Chief Counsel; she continued to hold the Labor
Section Chief position as well until a replacement was named.
Walcott’s third performance review was conducted by Carr on December 3, 1999. Her
scores ranged from two to four, with an overall score of three. Her lowest scores, both twos, were
for “timeliness in completing assignments” and “accountability for legal advice”; her highest score,
a four, was for understanding of labor and employment law.
Also in December 1999, Carr hired Matthew Brady (“Brady”), a white man born on
December 31, 1960, to serve as Labor Section Chief. Less than two months later, Walcott filed a
second charge with the EEOC and OCRC, alleging retaliation and disability discrimination in
connection with the hiring of Brady. Walcott contends that Brady had only limited labor law
experience.
Brady was demoted in March 2000 to Assistant Director of Law, and Carr hired Eric
Schaltenbrand (“Schaltenbrand”), a white man then serving as Assistant Director of Law in the
Labor Section, to replace him as Labor Section Chief. A month later, Walcott filed a third charge
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No. 03-3979
with the EEOC and OCRC, alleging retaliation and gender, race, and disability discrimination
related to the promotion of Schaltenbrand.
Schaltenbrand resigned from the City Law Department on May 26, 2000. Defendants
conducted a nationwide search for his replacement, and in September 2000 hired Darryl Hines, an
African-American man born on June 11, 1949, to fill the position of Labor Section Chief.
On October 30, 2001, Walcott received a Notice of Discipline from Carr, informing her that
she was suspended without pay for one day for her failure to meet a deadline for a dispositive
motion in one of her cases. In the meantime, Walcott had submitted a memo to Carr requesting a
medical leave of absence, which was approved for the period October 17, 2001, through December
17, 2001. While on that leave, Walcott resigned from the City Law Department and accepted a
position as Personnel and Human Resources Officer with the Cleveand Municipal Court.
Procedural History
On February 11, 2002, Walcott filed a complaint in the United States District Court for the
Northern District of Ohio alleging race, age, and sex discrimination under 42 U.S.C. §§ 1981, 1983,
2000e, and 29 U.S.C. § 621 et seq., and retaliatory discrimination claims brought pursuant to state
law. On June 3, 2002, Walcott filed an amended complaint, adding a claim for defamation under
state law. Pursuant to the three sets of charges filed by Walcott, the OCRC had issued probable
cause findings on Walcott’s behalf on July 13 and December 7, 2000 on all of the claims raised
before this Court.
During the pendency of her action in the district court, Walcott agreed to submit to a
deposition on August 8, 2002. That deposition did not occur, and a subsequent deposition was
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No. 03-3979
scheduled for October 31, 2002. Three days before that date, Walcott fired her attorneys,
purportedly for inadequate representation, and moved for an extension of discovery, or, in the
alternative, dismissal of her case without prejudice. The district court denied that motion and
required Walcott to appear for a videotaped deposition on November 25, 2002.
On February 3, 2003, Defendants filed a motion for summary judgment on all of Walcott’s
claims. Walcott filed a response in opposition to that motion on March 19, 2003. On May 24, 2003,
the district court granted summary judgment to Defendants on all claims brought by Walcott.
Walcott filed a notice of appeal to this Court on June 20, 2003, challenging the district court’s grant
of summary judgment and denials of Walcott’s motion for an extension of discovery and her motion
to reconsider the denial of that motion. Walcott has not appealed the district court’s ruling on her
state law claims for defamation and for negligent and intentional infliction of emotional distress and
defamation.
DISCUSSION
I. Whether the District Court Properly Grant Defendants’ Motion for Summary
Judgment.
1. Standard of Review
We review a district court’s grant of summary judgment de novo. Hamby v. Neel, 368 F.3d
549, 556 (6th Cir. 2004)(citing Johnson v. Econ. Dev. Corp., 241 F.3d 501, 509 (6th Cir. 2001)).
Summary judgment is appropriate when there are no genuine issues of material fact. Id.; FED. R.
CIV. P. 56(c). In reviewing the district court’s grant of summary judgment, we view the evidence
and draw all reasonable inferences in the light most favorable to the non-moving party. Combs v.
Int’l Ins. Co., 354 F.3d 568, 576-77 (6th Cir. 2004)(citing Adickes v. S.H. Kress & Co., 398 U.S.
6No. 03-3979
144, 157 (1970)); Williams v. Int’l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000); Smith v.
Thornburg, 136 F.3d 1070, 1074 (6th Cir. 1998). However, the “mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
2. Plaintiff’s Race Discrimination Claim
Walcott’s first argument relates to her claim that Defendants’ failure to promote her
constituted race discrimination in violation of Title VII; 42 U.S.C. § 1981; and OHIO REV. CODE
ANN. § 4112. As the district court noted, claims of discrimination under each of these provisions
are considered under the legal framework established for Title VII race discrimination claims. See
Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 n. 2 (6th Cir. 2000)(“the standards for Title VII are
equally applicable to Dews’ claims under 42 U.S.C. § 1981 and O.R.C. § 4112").
In the absence of direct evidence, a Title VII plaintiff may set forth a prima facie case of
discrimination for failure to promote by showing (1) that she is a member of a protected class; (2)
that she applied for and was qualified for a promotion; (3) that she was considered for and denied
the promotion; and (4) other employees of similar qualifications who were not members of the
protected class received promotions. Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603, 614
(6th Cir. 2003)(citing Dew, 231 F.3d at1020-21). The parties do not dispute the district court’s
finding that Walcott satisfied her prima facie burden.
Once a plaintiff has set forth a prima facie case of race discrimination, the burden shifts to
the defendant to present a “legitimate, non-discriminatory reason” for the failure to promote. Id. at
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No. 03-3979
614-15 (citing Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). We agree with
the district court that Defendants met this burden by presenting evidence that Walcott was not
promoted because: she was unable to get along with supervisors and did not work well with other
staff; she left her files in disarray before going on medical leave; her performance reviews were not
impressive in the categories of timeliness, assignment management, communication skills,
leadership, and initiative; she did not show improvement in these areas over time; she missed
important deadlines; and she refused to cooperate with Defendants’ request that she transfer back
to the Labor and Employment Section.
Once a defendant has met its burden of presenting a legitimate, non-discriminatory reason
for an adverse employment action, a plaintiff will survive summary judgment only by raising a
genuine issue of material fact as to whether the proffered reason is in fact a pretext for
discrimination. Id. at 616. A plaintiff establishes pretext by showing that the reason offered by the
defendant: (1) has no basis in fact; (2) did not actually motivate the decision not to promote, or (3)
was insufficient to warrant the decision not to promote. Zambetti v. Cuyahoga Community College,
314 F.3d 249, 258 (6th Cir. 2002)(citing Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078,
1084 (6th Cir. 1994)).
The district court carefully examined Walcott’s evidence under each of the prongs of the
pretext analysis just discussed. We agree with the district court that Walcott, having conceded in
her deposition that she did miss deadlines, that her working relationship with Milton, in Walcott’s
words, sometimes got “out of order,” and that she refused to transfer into the Labor Section when
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No. 03-3979
asked to do so, cannot establish that the reasons given by Defendants for their failure to promote
Walcott have no basis in fact.
The district court was also correct in concluding that Walcott failed to show that the
proffered reasons did not actually motivate Defendants’ decision not to promote Walcott. Walcott
argues that her request to transfer out of the Labor Section and her subsequent refusal to voluntarily
return to that section could not have been the true reason for the decision not to promote her,
because both Macecevic and Carr were promoted without ever having worked in the Labor Section.
This argument fails because a lack of experience in a department is distinct from a demonstrated
resistance to working in that department. Defendants reasonably distinguished between these two
circumstances in making their decisions about whom to promote.
Finally, we agree with the district court that the reasons given by Defendants are sufficient
to explain their decision not to promote Walcott. Walcott raises only one argument that the reasons
given, even if true, do not justify her non-promotion. She contends that Carter’s affidavit testimony
that her limited litigation experience was a factor in the decision not to promote her was insufficient
to support that decision because litigation was only a small part of the work of the Labor Section and
because it was not her fault that she did not have more litigation experience. The latter argument
is irrelevant, as Defendants have not cited some blameworthy failure to obtain litigation experience
as part of their decision not to promote her; rather, they have simply noted that she lacked litigation
experience. As for Walcott’s contention that litigation was only a small part of the work of the
Labor Section, this argument is unsupported by any evidence. Even if true, Defendants have never
suggested that Walcott’s lack of litigation experience was the only reason for the decision not to
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No. 03-3979
promote her. The unrebutted reasons cited by Defendants for their failure to promote Walcott,
including her resistance to work in the Labor Section, her missed deadlines, and her difficulty with
her supervisor, easily suffice to support the decision not to promote her.
We conclude that Walcott failed to raise a genuine issue of material fact with respect to her
claim that Defendants’ proffered non-discriminatory reasons for not promoting her were pretextual,
and that the district court correctly granted summary judgment to Defendants on Walcott’s race
discrimination claim.
3. Plaintiff’s Sex Discrimination Claim
Walcott contends that Defendants discriminated against her on the basis of her gender in
violation of Title VII and OHIO REV. CODE ANN. § 4112.02. Because the argument she sets forth
in support of this position is identical to her argument in support of her race discrimination
claim, we reject it for the reasons set forth in the discussion of the race discrimination claim, and
find that the district court correctly granted summary judgment to Defendants on her sex
discrimination claim.
4. Plaintiff’s Age Discrimination Claim
Walcott argues that the district court erred in granting summary judgment to Defendants
on her claim that Defendants’ failure to promote her constituted age discrimination in violation
of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.. She raises
her age discrimination claim before this Court only with respect to the promotion of Brady, who
is five years younger than Walcott.
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No. 03-3979
In order to establish a prima facie case under the ADEA, a plaintiff must show, by a
preponderance of the evidence, that: (1) she was at least forty years old at the time of the alleged
discriminatory act; (2) she was subject to adverse employment action; (3) she was otherwise
qualified for the position; and (4) after she was rejected, a substantially younger person was
hired for the job. Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001)(citing Barnett v. Dep’t
of Veterans Affairs, 153 F.3d 338, 341 (6th Cir. 1998)).
The district court determined that with respect to Brady, Walcott made out a prima facie
case of age discrimination, but went on to grant summary judgment to Defendants on the ground
that, as with her race and sex discrimination claims, Walcott could not demonstrate that
Defendants’ given reasons for her non-promotion were pretextual.
We must disagree with the district court that Walcott established a prima facie case of
age discrimination. The fourth prong of the prima facie analysis under the ADEA requires
Walcott to show that Brady is substantially younger than she is. We have held that “in the
absence of direct evidence that the employer considered age to be significant, an age difference
of six years or less . . . is not significant.” Grosjean v. First Energy Corp., 349 F.3d 332, 340
(6th Cir. 2003). Brady is five years younger than Walcott and thus, under our precedent, is not
substantially younger than she is. We find that Walcott has not established a prima facie case of
age discrimination.
5. Plaintiff’s Retaliation Claim
Before this Court, Walcott contends that Defendants retaliated against her by failing to
promote her after she filed charges with the EEOC, and by suspending her without pay for one
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No. 03-3979
day in October, 2001, in violation of Title VII and Ohio Revised Code § 4112.02. In order to
establish a prima facie case of retaliation, a plaintiff must establish that (1) she engaged in
activity protected by Title VII; (2) the exercise of her civil rights was known to the defendant;
(3) thereafter, the defendant took an employment action adverse to the plaintiff; and (4) there
was a causal connection between the protected activity and the adverse employment action.
Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
We will first address her charge that the decision not to promote her constituted
retaliation. Walcott was first denied a promotion in February 1999, when Macecevic was named
Labor Section Chief. Walcott filed her first EEOC charge against Defendants approximately six
months later. Four months later, Walcott was again denied a promotion to Labor Section Chief,
when Brady was hired. Defendants have contested only Walcott’s claim that there is a causal
connection between her EEOC filing and the decision not to promote her.
To establish a causal connection between the protected activity and the adverse
employment action, a plaintiff must present evidence “sufficient to raise the inference that her
protected activity was the likely reason for the adverse action.” EEOC v. Avery Dennison Corp.,
104 F.3d 858, 861 (6th Cir. 1997) (quoting Zanders v. National R.R. Passenger Corp., 898 F.2d
1127, 1135 (6th Cir. 1990)(citations omitted)). Temporal proximity alone, without additional
evidence of a retaliatory animus, will not suffice to support a finding of a causal connection.
Hafford v. Seidner, 183 F.3d 506, 616 (6th Cir. 1999).
We agree with the district court that Walcott has failed to establish a causal connection
between the filing of her EEOC charges and the failure to promote her, because she cannot
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No. 03-3979
demonstrate that she was treated differently before and after filing the EEOC charges. See
Walborn v. Erie County Care Facility, 150 F.3d 584, 589 (6th Cir. 1998). Defendants first failed
to promote Walcott six months prior to her first EEOC filing; the fact that they did so again four
months after that filing (and a third time, a month after her second EEOC filing) is insufficient to
raise an inference of a retaliatory animus.
Walcott also contends that her one-day suspension without pay in October 2001
represented retaliation for her EEOC filings. However, this issue was not raised before the
district court. We therefore decline to entertain it here. See White v. Anchor Motor Freight, Inc.,
899 F.2d 555, 559 (6th Cir. 1990); Harrington v. Vandalia-Butler Bd. of Ed., 585 F.2d 192, 197
(6th Cir. 1978)(citing Hutton v. United States, 501 F.2d 1055, 1062(6th Cir. 1974)).
II. Whether the District Court Abused its Discretion in Denying Plaintiff’s Motion for
An Extension of Discovery.
We review a district court’s denial of a request for an extension of discovery for abuse of
discretion. Thomas v. City of Cleveland, No. 01-3302, 2002 WL 2020038 (6th Cir. Jan. 30,
2003). We will find an abuse of discretion only when we reach “a definite and firm conviction
that the trial court committed a clear error of judgment.” Tompkin v. Phillip Morris USA, Inc.,
362 F.3d 882, 891 (6th Cir. 2004)(citation omitted).
On October 31, 2002, Walcott’s then-counsel filed a motion to withdraw and requested
an extension of time so that Walcott could obtain new counsel. The district court denied the
request for an extension of time the following day. Walcott, proceeding pro se, then filed a
motion to reconsider the order denying what she captioned to be an extension of the discovery
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No. 03-3979
cut-off deadline, arguing that she should not be forced to attend a deposition without an attorney.
The district court again denied the motion, citing the reasons set forth in Defendants’ brief in
opposition to the motion for reconsideration, which referenced Defendants’ repeated failed
attempts to procure Walcott’s presence for deposition.
Given that Walcott’s deposition had to be repeatedly rescheduled due to her failures to
appear for it, we cannot agree with her that it was an abuse of discretion for the district court to
deny her requests to extend the deadline for discovery and thus further postpone her deposition.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.
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