Case: 1:18-cv-00647-PAG Doc #: 27 Filed: 03/06/19 1 of 22. PageID #: 1159

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Nakia L. Jones,
Plaintiff,
vs.
City of Warrensville Heights, et al.,
Defendant.

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CASE NO. 1:18 CV 647
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon defendants’ Motion for Summary Judgment (Doc.
12). This case arises out of the termination of plaintiff’s employment. For the following
reasons, the motion is GRANTED.
Facts
Plaintiff Nakia Jones filed this Complaint against defendants City of Warrensville
Heights, Bradley D. Sellers (Mayor), and Wesley Haynes (Chief of Police). Defendants Sellers
and Haynes are sued in their individual and official capacities. The Complaint sets forth four
claims. Count One alleges that plaintiff was terminated from her employment in violation of her

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First Amendment rights. Count Two also alleges a First Amendment violation, but additionally
states that the claim is brought pursuant to 42 U.S.C. § 1983. Count Three alleges gender
discrimination (hostile work environment) and retaliation in violation of Ohio Revised Code §
4112. Count Four alleges intentional infliction of emotional distress. In her brief, plaintiff
expressly abandons her state law retaliation claim. (Doc. 23 at 17).
The following background facts are presented to the Court.1 Plaintiff, a female, was a
patrol officer with the City of Warrensville Heights from 2002 until her termination in October
2017. Defendant Sellers has been the mayor of the City since 2011. Defendant Haynes has been
the Chief of Police since 2014. At the time plaintiff was hired, there was one other female police
officer and no other females were hired during the period of plaintiff’s employment.
According to plaintiff, she was awakened by her college age son on July 6, 2016, who
was very upset about the police shooting of Alton Sterling, an African American male in
Louisiana. Plaintiff responded by posting a video that day on her private Facebook page on the
subject of police shootings of African American males. Her posting “went viral.”
According to Chief Haynes, he learned of the post that night from one of the sergeants
who informed him that the police department was getting several calls from the media regarding
the post. He went into the station that night to view the post. The next morning, upon arriving at
the station, the chief was informed that “the phones in our communications center were ringing
off the hook” and some news media outlets were in the parking lot. The chief called a meeting
with himself, the mayor’s chief of staff/personnel director (Kelli Wilson), plaintiff, and the

1

Facts pertinent to the hostile work environment claim are discussed in the section
addressing that claim.
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mayor who communicated by phone as he was out of town. Chief Haynes told plaintiff not to
report for her next shift. Plaintiff testified that she agreed with that decision. After she returned,
Haynes put plaintiff on dispatch duty, rather than the road, for the remainder of the week for
safety concerns due to the large volume of attention on the matter.
On July 27, 2016, plaintiff wrote a memo to the shift supervisor and Chief Haynes
entitled “Safety Concerns” wherein she indicated concerns that other officers would not work
with her or back her up. Additionally, she stated that she was now receiving “negative and
demeaning literature” which she believed was coming from inside the department. Plaintiff
acknowledged that as a result of the memo, the chief had a meeting with her and the mayor.
According to Chief Haynes, plaintiff provided a postcard and a letter. The postcard accused
plaintiff of stoking violence against police officers in Dallas. The typewritten letter, which states
it is written by a “black police officer in an adjoining department,” accused plaintiff of being a
traitor. Chief Haynes investigated by sending a detective to the post office regarding the letter,
but nothing was determined. He also compared handwriting on the post card to that contained
in department personnel files, but only concluded that the handwriting somewhat matched
plaintiff’s own. A BCI review was inconclusive. The chief also received a communication from
the FBI informing him that plaintiff’s name had been mentioned in the Dallas shooter’s
manifesto. Haynes informed the mayor of such, but not plaintiff. The mayor informed plaintiff.
Mayor Sellers decided to have a “roundtable meeting”with the entire department on
August 8, 2016. Everyone’s concerns were to be addressed. The chief initiated the meeting by
“opening the floor up to” plaintiff. Several officers expressed concerns regarding plaintiff’s trip
to Washington, D.C., where plaintiff sat on a White House panel. But, the chief informed the

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officers that the mayor had given plaintiff permission to go. According to the chief, things
calmed down after the meeting. Plaintiff testified that after the meeting, “it got a little bit better”
with some officers, although there was still some friction. According to the mayor, while he
looked into whether plaintiff had committed a violation by posting the video, he concluded that
she did not and he did not discipline her.
Plaintiff continued her work as a patrol officer up to May 29, 2017, when she was
involved in an on-duty automobile accident. She acknowledges that after the August 2016
meeting and up to this point, she suffered no adverse job actions. (Doc. 23 at 11) Plaintiff
testified that she received worker’s compensation and “accident on duty” pay as she was being
treated for post-concussive syndrome as a result of the accident.
Kelli Wilson testified that the City’s third-party administrator for worker’s compensation
contacted her regarding plaintiff’s return to work. It is unclear exactly when this occurred. The
third-party administrator believed that plaintiff should have returned and recommended
surveillance. Wilson brought this information to the mayor who refused surveillance because he
believed it was unnecessary. The mayor testified that this occurred around July 2017. Later,
Wilson came to the mayor a second time with another request by the third-party administrator for
surveillance on plaintiff. The mayor authorized the surveillance this time given that he relied on
the administrator’s professional opinion regarding an employee’s progression through the
worker’s compensation system. Wilson testified that also around this time, the chief came to her
with concerns that plaintiff was engaged in public speaking events while on worker’s
compensation leave, as well as traveling and attending weddings.
Plaintiff’s exhibits show that on August 25, 2017, plaintiff’s treating physician

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recommended she return to work on October 16, 2017. He then extended the return to work date
to November 1, 2017, based on plaintiff’s request that she return when scheduled to work day
shift rather than night shift. However, per a September 27, 2017 request for clarification from the
third party administrator, the treating physician stated that other than not wanting to work night
shift, there was no reason that plaintiff could not return to work as of that date (September 27).
The third party administrator suggested that plaintiff attend an independent medical
examination (IME). She was evaluated on September 12, 2017, and was found to be fit to return
to work.
Chief Haynes and Mayor Sellers testified that they were presented with the IME results
and documentation from the third party administrator which included the treating physician’s
release to work as of September 27, and determined that plaintiff should be ordered back to
work. The chief, who believed that plaintiff was clear to return to work based on the
documentation, wrote a letter dated October 6, 2017, which stated that plaintiff was to report
back to work on October 9, 2017, “for full duty without restrictions.”2
Plaintiff, who was no longer on paid leave, testified that she called in sick to work on
October 9 and 10 due to a headache. The mayor then decided to conduct surveillance on
plaintiff on her next scheduled work day, October 13. Plaintiff testified that on October 12, she
went shopping and then to her doctor who gave her pain medication for her lupus and a “time off

2

Plaintiff points to two documents which she asserts shows she was not fit for
duty, but both are dated after the October 6 letter: An October 24, 2017
“Physician’s Report of Work Ability” worker’s compensation form which states
that plaintiff is not able to return to work until December 31, 2017, and an
October 12, 2017 speech therapist report which states that due to the high risk
nature of plaintiff’s job, she is “not yet ready to return to work.”
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slip” until October 16. On October 13, plaintiff called in sick for the next three work daysOctober 13, 14, 15, stating that she had a headache and a lupus flare up. Surveillance of
October 13 showed plaintiff boarding a plane for Philadelphia. Plaintiff acknowledged that she
traveled to Philadelphia to speak at a conference and returned the next day. Chief Haynes
testified that a pre-disciplinary hearing was scheduled for Monday, October 16. At the hearing,
plaintiff admitted she traveled to Philadelphia (a prearranged trip) on October 13, to participate
in a speaking engagement. Plaintiff also submitted a “return to work” slip from her medical
provider that she had seen on October 12 due to a lupus flare up which gave a return to work
date of October 16. After the hearing, it was determined that plaintiff would be terminated. By
letter of October 20, 2017, signed by Mayor Sellers, plaintiff was notified of her termination of
employment for violating the following standards of conduct: “exercising common sense and
affirmatively promoting the organization's values,” “maintaining acceptable attendance and
availability for work,” and “dishonesty or untruthfulness.” Additionally, plaintiff was found to
have violated the ethical standards of the City and her oath of office.
This matter is now before the Court upon defendants’ Motion for Summary Judgment.
Standard of Review
Summary Judgment is appropriate when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376,
378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material
facts rests with the moving party:
[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
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motion, and identifying those portions of “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits,” if any, which it believes demonstrates the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)). A fact is “material only if its resolution
will affect the outcome of the lawsuit.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
Accordingly, the nonmoving party must present “significant probative evidence” to demonstrate
that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip
Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may not simply rely on
its pleading, but must “produce evidence that results in a conflict of material fact to be solved by
a jury.” Cox v. Kentucky Dep’t. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).
The evidence, all facts, and any inferences that may permissibly be drawn from the facts
must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there must be evidence on which the jury
could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence is “merely
colorable” and not “significantly probative,” the court may decide the legal issue and grant
summary judgment. Anderson, 477 U.S. at 249-50 (citation omitted).
Discussion
(1) First Amendment Retaliation
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Counts One and Two allege, through a 42 U.S.C. § 1983 action, that plaintiff was
terminated in retaliation for exercising her First Amendment rights.3
To maintain a claim under § 1983, a plaintiff must establish that she was deprived of a
right secured by the Constitution or the laws of the United States, and that the deprivation was
caused by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108
S.Ct.2250, 101 L.Ed.2d 40 (1988); Simescu v. Emmet County Dep’t of Soc. Services, 942 F.2d
372, 374 (6th Cir. 1991). Section 1983 “is not itself a source of substantive rights,” but merely
provides “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443
U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The first step in any such claim is to
identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386,
394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Baker, 443 U.S. at 140.
Plaintiff’s § 1983 claim is predicated on the allegation that defendants terminated
her employment in retaliation for her exercise of speech protected under the First
Amendment. A prima facie case for a First Amendment retaliation claim has three elements: “(1)
the plaintiff engaged in constitutionally protected conduct; (2) an adverse action was taken
against the plaintiff that would deter a person of ordinary firmness from continuing to
engage in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff's
protected conduct.” Ehrlich v. Kovack, 710 Fed.Appx. 646 (6th Cir. 2017) (quoting Thaddeus-X
v. Blatter, 175 F.3d 378 (6th Cir. 1999)).
Although not raised by defendants, the Court must first address the liability of defendant

3

Although Count One does not mention § 1983, claims of “constitutional
violations” are brought via § 1983.
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City of Warrensville Heights. As the Sixth Circuit has explained, “[t]he question of whether a
municipality is liable under § 1983 has two parts: ‘(1) whether [the] plaintiff’s harm was caused
by a constitutional violation, and (2) if so, whether the city is responsible for that violation.” Lee
v. Metropolitan Government of Nashville and Davidson County, 2011 WL 2882227 at * 12 (6th
Cir. July 18, 2011) (quoting Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120, 112 S.Ct.
1061, 117 L.Ed.2d 261 (1992)). Under the first part of this inquiry, a municipality cannot be held
liable under § 1983 “based on the actions of one of its officers when in fact . . . the officer
inflicted no constitutional harm.” City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct.
1571, 89 L.Ed.2d 806 (1986). See also Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir. 2007)(“In
fact, because the jury found no constitutional violation . . . the county could not have been found
liable . . . for an allegedly unconstitutional custom or policy.”) A municipality, however, may be
held responsible for a constitutional violation based on § 1983 where its “official policy or
custom actually serves to deprive an individual or his or her constitutional rights.” Gregory v.
City of Louisville, 444 F.3d 725, 752-53 (6th Cir. 2006). The Sixth Circuit has explained the
contours of municipal liability as follows:
The Supreme Court has approved municipal liability based on § 1983 when “the
[municipal] action that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially adopted and
promulgated by that body's officers,” or where such actions emanate from
informal governmental custom. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words, the constitutional violation
must have sprung from “official policy” in one form or another. Id. at 694, 98
S.Ct. 2018. As such, local government units cannot be held liable mechanically
for their employees' actions under a respondeat superior theory. Id. at 691, 98
S.Ct. 2018. The plaintiff must “demonstrate that, through its deliberate conduct,
the municipality was the ‘moving force’ behind the injury alleged.” Bryan Cnty.
Bd. of Comm'rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626
(1997). He “must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link between the
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municipal action and the deprivation of federal rights.” Id.
Alman v. Reed, 703 F.3d 887, 902-903 (6th Cir. 2013). See also Garner v. Memphis Police
Dep’t,8 F.3d 358, 364 (6th Cir. 1993) (“[T]o satisfy the Monell requirements, a plaintiff must
identify the policy, connect the policy to the [government entity] itself and show that the
particular injury was incurred because of the execution of that policy”).
Here, neither plaintiff’s Complaint nor her brief have identified any particular custom,
practice, or policy connected to the City of Warrensville Heights that resulted in her alleged
injury. She simply does not discuss whether her particular injury was incurred because of the
execution of a City policy or custom. Consequently, there can be no municipal liability under §
1983 and summary judgment is granted to the City of Warrensville Heights (and to defendants
Sellers and Haynes in their official capacity4) on Counts One and Two.
Next, remaining defendants Mayor Sellers and Chief Haynes assert qualified immunity as
to the individual capacity claims. Qualified immunity protects public officials from liability for
civil damages if their conduct does not violate “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223,
231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Where, as here, the individual defendants assert
qualified immunity, the government officials may not be held liable if 1) the officers did not
violate any constitutional guarantees or 2) the guarantee, even if violated, was not clearly

4

“An official capacity claim is merely another name for a claim against the
municipality.” Davis v. Butler County, Ohio, 658 Fed.Appx. 208 (6th Cir. 2016)
(citations omitted). Thus, plaintiff’s official capacity claim fails for the same
reason as her municipal liability claim. Id.
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established at the time of the alleged misconduct. Arrington-Bey v. City of Bedford Heights, 858
F.3d 988 (6th Cir. 2017) (citations omitted). Defendants argue that they did not violate any
constitutional right. For the following reasons, this Court agrees.
As stated above, plaintiff claims that she was terminated from her employment in
retaliation for exercising her First Amendment rights by engaging in constitutionally protected
speech. Defendants argue that plaintiff fails to establish a prima facie case of her claim because
she cannot show that her termination was motivated at least in part by the protected conduct. In
particular, plaintiff posted her Facebook video in July 2016, and was not terminated until
October 2017. Furthermore, not only did more than a year pass between her speech and her
termination, but defendants assert that the evidence shows that plaintiff would have been
terminated absent the speech given that she called in sick but boarded a plane instead. As
recognized by Ehrlich, supra, failure to establish causation (the third element in a First
Amendment retaliation claim) supports the grant of summary judgment to defendant. As also
recognized by the Sixth Circuit in that case, “To establish causation, a plaintiff must demonstrate
that her protected speech is a ‘substantial or motivating factor’ of the adverse action.” Ehrlich,
710 Fed.Appx. at 650 (citations omitted).
Plaintiff argues that there are material facts from which a jury could determine that her
termination was substantially motivated by her protected speech. She points to the following.
•

Kelli Wilson testified that Chief Haynes wanted to discipline plaintiff for the Facebook
post but Mayor Sellers did not want to discipline her for it. Plaintiff gave the chief the
postcard accusing her of stoking violence against police officers. The chief conducted an
investigation and concluded that the handwriting on the postcard matched plaintiff’s.

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But, a BCI review was inconclusive. Plaintiff concludes that the chief “still suspected
her” and “still harbored an animus” toward her. (Doc. 23 at 19)
•

Plaintiff was subsequently injured in the on-duty accident and placed on worker’s
compensation leave. Plaintiff asserts that this “placed her in the spotlight with the City.”
(Doc. 23 at 19) She asserts that the City and the third party administrator began to
question whether she truly suffered from medical conditions which prevented her from
working. The chief began to monitor her conduct. The chief and his subordinates became
concerned with plaintiff’s speaking engagements which were constitutionally protected
speech. Plaintiff maintains that the concern with the speaking engagements led to the
surveillance and the IME.

•

Plaintiff maintains that there are issues of fact as to whether the City actually based its
return to work order on the medical facts available which show that plaintiff’s medical
providers did not opine that she should return to work on October 9, 2017. Plaintiff also
surmises that it was well-publicized that she had a speaking engagement in Philadelphia
five days after the return to work date, and additional surveillance was ordered “in
anticipation of the event.” (Doc. 23 at 20) Plaintiff had a written excuse from a medical
provider for the dates that she called off work and traveled to Philadelphia.
For the following reasons, the Court agrees with defendants that plaintiff has not shown

an issue of fact as to causation.
First, there is no temporal proximity between the July 2016 Facebook post and plaintiff’s
October 2017 termination. Clearly, the passage of more than one year is outside any boundary
of temporal proximity.

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Second, plaintiff attempts to avoid the problem created by the passage of more than one
year between her Facebook post and her termination by arguing that her other various speaking
engagements were also protected activity. Plaintiff states that these “speaking engagements
involved issues, like her Facebook post, of public and police interactions.” (Doc.23 at 19) But,
plaintiff testified that she had been “speaking before this video went viral” and she
acknowledges that no adverse action was taken against her until her termination. Furthermore,
plaintiff was not disciplined for participating in the Washington, D.C. meeting although she had
called in sick to attend. And, plaintiff admits she suffered no adverse job actions between the
roundtable meeting in August 2016 and her car accident in May 2017, although she engaged in
“speaking” throughout that time.
Third, plaintiff asserts that after the chief reported to Wilson that he and the other officers
were “concerned” that plaintiff was participating in speaking engagements while on worker’s
compensation leave, Wilson approached the mayor a second time requesting the surveillance and
this time he agreed to it. However, Wilson’s testimony merely acknowledges that these two
events happened around the same time. Rather, Wilson’s testimony makes clear that it was the
third party administrator’s idea to conduct the surveillance and the mayor only agreed after the
second request. The mayor also testified that it was the third party administrator who raised
concerns to Wilson regarding plaintiff’s leave and suggested the surveillance. The mayor
initially denied the request for surveillance but approved it after the third party administrator
requested it a second time. Furthermore, the chief testified that it was not only the speaking
engagements that had caused concern during plaintiff’s leave, but also her traveling to Florida
and attending weddings.

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Fourth, plaintiff speculates that the chief continued to be suspicious of her and harbor
animosity based on the issue of the postcard.5 This is without basis. Not only did these events
occur more than a year before plaintiff’s termination, but it was plaintiff who asked the chief to
address the postcard. Additionally, the chief participated in the August 2016 “roundtable
meeting” which gave everyone in the department the opportunity to air their concerns. After
several officers expressed concern regarding plaintiff’s upcoming trip to sit on a White House
panel, the chief informed the officers that the mayor had given plaintiff permission to go. This
weakens plaintiff’s argument that the chief held animus toward her. Moreover, even plaintiff
admitted that things improved after the meeting and no adverse actions were taken against her.
Plaintiff speculates that the chief investigated and built up a case against her while she was out
on medical leave. But, plaintiff did not go out on medical leave as a result of her accident until
nine or ten months after the issue of the postcard and the roundtable meeting. Furthermore, there
is no evidence that the chief asked for the surveillance, but rather, as discussed above, the third
party administrator requested it.
Fifth, plaintiff attempts to undermine the decision to terminate her by calling into
question whether defendants truly relied on “the medical facts available.” (Doc. 23 at 20)
Plaintiff seems to be arguing that defendants came up with the return to work date of October 9,
because they knew she had a speaking engagement in Philadelphia on October 13. But, it is
undisputed that the September 2017 IME cleared plaintiff to work and plaintiff’s treating
physician indicated she could return to work as of September 27. Even assuming the medical
evidence that defendants had before them did not justify a return to work date of October 9, there

5

Plaintiff acknowledges that the mayor made the decision to terminate her.
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is no evidence that plaintiff contacted the chief or the mayor to discuss whether she was fit to
return to work after she received the October 6 letter from the chief instructing her to report back
to work on October 9. Rather, she called in sick to work on October 9 and 10 due to a headache.
She again called in on October 13 (for the next three days) stating that she had a headache and a
lupus flare up. Instead, she boarded the plane on October 13. Plaintiff was terminated for
fraud/deception. The mayor testified that at least two other City employees had been terminated
for fraudulent use of sick leave.
Because there is no causal connection between plaintiff’s protected speech and her
termination, and defendants have demonstrated that there was a legitimate reason for the
decision, Counts One and Two are dismissed.
(2) State law hostile work environment claim
Plaintiff argues she was subjected to a hostile work environment based on her gender
during the course of her 15 year employment with the City. Initially, plaintiff does not dispute
that individual defendants Mayor Sellers and Chief Haynes are not “employers” subject to
liability under Ohio Revised Code § 4112. Summary judgment is granted to defendants on this
basis. Hauser v. Dayton Police Department, 140 Ohio St.3d 268 (2014), (O.R.C. §
4112.01(A)(2) and 4112.02(A) do not expressly impose liability on political subdivision
employees; rather, political subdivision employers are subject to vicarious liability for the
discriminatory acts of their employees.) Therefore, the claim remains pending against the City
only.
To recover on a hostile work environment claim, plaintiff must show that: (1) she was a
member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the

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harassment complained of was based on sex; (4) the charged sexual harassment was severe or
pervasive enough to create a hostile work environment; and (5) the employer failed to take
reasonable care to prevent and correct any sexually harassing behavior. Daniels v. Pike County
Commissioners, 706 Fed.Appx. 281 (6th Cir. 2017) (citing Williams v. General Motors Corp.,
187 F.3d 553 (6th Cir. 1999)). A hostile work environment occurs “[w]hen the workplace is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an abusive working
environment.” Id. The conduct must be so severe or pervasive that both a reasonable observer
and the actual victim would perceive the environment as abusive. Because federal case law
interpreting Title VII is generally applicable to sexual harassment claims under Ohio state law,
the Court applies the federal legal framework to plaintiff’s state law claim. Hawkins v.
Anheuser–Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008).
Plaintiff points to the following facts in support of her hostile work environment claim.
All facts are taken from her deposition testimony.
At the time she was hired, there was one other female officer. No other females were
hired during plaintiff’s tenure. Plaintiff found out that answers to her polygraph test,
administered as part of the hiring process, had been leaked in the department which included
answers to sexually explicit questions.
A few of her lieutenants were “extremely disrespectful and would treat me different than
others in our department.” For instance, during her first pregnancy she had been sick and was in
a car accident. Lieutenant Curtin put her on dispatch light duty which she had no objection to.
But, he also told her she would be doing “jail check.” He had not required the other female

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officer to do so when she was pregnant. Another officer complained to the chief on her behalf
and she was then told that she did not have to do the “jail check.” After that, Lieutenant Curtin
did not cause her other problems. Lieutenant Kerling was “condescending and very disrespectful
to women.” Plaintiff complained to Kelli Wilson that Kerling was disrespectful and “always had
an issue with” her. Wilson told plaintiff that she informed the mayor, but nothing changed.
After plaintiff was hired, she asked the chief if the female officers had a separate place to
change because there was only a male locker room. “I mean it doesn’t say male on the door, but
we know it’s an all male facility.” Plaintiff would change at home and use the public restroom at
City Hall. It was decided that a sign would be put on the door which could be flipped depending
on whether males or females were inside. Once a male co-worker kicked the door open when she
was inside and so she never changed in there again. Other times, males flipped the sign from
female to male while plaintiff was inside.
Plaintiff complained that male officers on prior shifts left her car messy and once left a
Scene Magazine with a picture of a woman in lingerie. At one point, Lieutenant Curtin told
plaintiff he was going to write her up for having a messy car. Plaintiff talked with him and
explained that the male officers left her car messy. Curtin was agitated, but said he would speak
to her sergeants. Two weeks later, plaintiff found a pocket knife under the seat of her assigned
car. She knew it belonged to Curtin, and she turned it in.
Lieutenant Kerling had a board in his office with “derogatory” pictures of some of the
officers. One pictured an hispanic officer with a sombrero and one was of plaintiff “looking like
I was throwing up.” There were other depictions which were “jokes about every officer.”
During plaintiff’s first or second pregnancy, Sergeant Senft remarked that plaintiff did

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not “know how to use condoms.” Plaintiff told her sergeant but said that she did not want a
formal complaint filed. During two of her pregnancies, the lieutenant would purposely switch
her shifts from day to nights. It took two doctor’s notes to be put on a regular shift. During her
last pregnancy, the sergeant put a bloody, pepper sprayed suspect in her cruiser rather than in his
own car.
Plaintiff believed she was treated differently than the males. John Videc, who relieved
her, was almost always late but never written up. Plaintiff was written up when she was late for a
shift. Plaintiff also states that she was almost always placed in dispatch rather than on the road,
although she was senior, because she is a woman. In 2014 and 2015, she was the only officer on
her shift “doing domestic violence for police reports and arrests.” The other officers did not want
to arrest the male perpetrators. Plaintiff complained to her supervisors. Plaintiff was also the one
doing all the domestic violence reports.
Manpower was low which resulted in everyone fighting for the time off. But, the males
would speak among themselves and decide who would get the day off rather than fairly
publishing the schedule. As with the other issues, plaintiff spoke with her supervisor but the
situation did not change. Plaintiff also felt that the males made her feel as though she had an
“attendance problem” because she had to take time off for three pregnancies and her lupus even
though “a lot of them all have as much time as me.”
In August 2017, during roll call, a co-worker remarked that he hoped the department did
not hire any more females because they are useless. The next day, the co-worker told plaintiff
that he hoped plaintiff was not offended by what he said and that he was not talking about her. In
general, plaintiff felt as though everything she did was “amplified” or “blown out of proportion.”

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Plaintiff argues that considering the cumulative effect of all these instances occurring in
her work environment, there are issues of fact as to whether the harassing conduct was severe or
pervasive enough to affect the conditions of her employment.
For the following reasons, the Court agrees with the City that summary judgment is
warranted on this claim because plaintiff has failed to establish a prima facie case. Not only are
many of plaintiff’s assertions based on conclusory or speculative facts, but some are simply
wholly subjective beliefs. Additionally, many of the incidents plaintiff relies on are not based on
her sex. Further, the incidents simply do not rise to the level of severity or pervasiveness
required to set forth a claim.
Although the Court is mindful that it considers the “totality of the circumstances,”
plaintiff discusses events over the course of her 15 years of employment. While it must not
“disaggregate the alleged incidents of harassment,” the Court must examine the “frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Daniels, 706 Fed.Appx. at 289 (citations omitted).
Many of the portions of testimony relied upon by plaintiff to show that she worked in a
hostile work environment based on her sex are conclusory statements, subjective beliefs, or
based on rumor including the following: the issues with her polygraph test; her opinion that
certain supervisors were disrespectful or condescending; the issue with the messy car and the
lingerie advertisement; the insinuation that the lieutenant left a pocket knife under the seat of the
car to intimidate plaintiff after she complained that the other men left her squad car messy; the
speculation that her male co-workers were deciding among themselves as to who would get time

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off; the “feeling” that the males thought plaintiff had an “attendance problem”; and the “feeling”
that everything she did was amplified or blown out of proportion. Additionally, plaintiff’s
opinion that John Videc was “always late” but never written up while she was written up is
unsupported by anything other than her own speculation.
Some of the incidents are not based on sex. The harassment must be “precipitated by
anti-female animus” or would not have occurred “but for the employee’s gender.” Daniels, 706
Fed.Appx. at 287-288 (citations omitted). The fact that a lieutenant required plaintiff to perform
jail checks while pregnant was probably not based on sex because plaintiff also testified that the
other female officer was not made to do so while pregnant. The “derogatory” pictures on the
board in the lieutenant’s office included males as well as females. The Court cannot say that the
fact that while she was pregnant, the lieutenant would “purposely” switch her shifts and a
sergeant put a pepper-sprayed and bloody suspect in her cruiser rather than his own would not
have occurred but for plaintiff’s gender.
The remaining incidents are just not sufficiently severe to amount to an unreasonable
interference with plaintiff’s work performance. The issue with the changing room is not
sufficiently threatening or humiliating and, in fact, defendant attempted to address the situation
with the limited amount of funding that it had. The comment about the condoms (which appears
to have been made outside plaintiff’s presence) and the statement that no more females should be
hired were certainly “isolated incidents” or “offhand comments” which do not amount to
discriminatory changes to the terms of employment. Daniels, 706 Fed.Appx. at 289 (citations
omitted). Finally, even assuming plaintiff’s belief is true that she was “always placed on
dispatch” and “was the only officer on her shift” doing domestic violence reports because she is

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a woman, the Court is unable to truly weigh the frequency of the incidents and cannot say that
they were objectively hostile or abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (The
conduct must be severe or pervasive enough to create an objectively hostile or abuse work
environment.)
For all these reasons, summary judgment is granted on the sex based hostile work
environment claim.
(3) intentional infliction of emotional distress
Plaintiff argues that the manner is which she “was treated throughout her employment”
and “particularly after she posted her commentary on Facebook constituted intentional infliction
of emotional distress by her co-workers, supervisors, and managers.” (Doc. 23 at 25) Plaintiff
maintains that the way she was treated throughout her employment caused her to refrain from
complaining for fear of retribution. She also asserts that she was subjected to abusive comments
during the roundtable meeting. Finally, she states that “the culminating act” of her termination
amounted to intentional infliction of emotional distress.
To prevail on a claim for intentional infliction of emotional distress under Ohio law, a
plaintiff must prove:
a) that the actor either intended to cause emotional distress or knew or should have
known that actions taken would result in serious emotional distress to the plaintiff; b) that
the actor’s conduct was extreme and outrageous, that it went beyond all possible bounds
of decency and that it can be considered as utterly intolerable in a civilized community;
c) that the actor’s actions were the proximate cause of the plaintiff’s psychic injury; and
d) that the mental anguish suffered by plaintiff is serious and of a nature that no
reasonable person could be expected to endure it.
Pyle v. Pyle, 11 Ohio App. 3d 31 (8th Dist. 1983).
Initially, plaintiff does not dispute that Mayor Sellers and Chief Haynes are entitled to

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immunity under O.R.C. § 2744.03(A)(6). Accordingly, summary judgment is granted to those
defendants on this claim. Nor does plaintiff dispute that employment termination alone cannot
support a claim for intentional infliction of emotional distress. See Shoemaker-Stephen v.
Montgomery County Bd. of Com'rs, 262 F.Supp.2d 866, 888 (S.D.Ohio 2003). Moreover, the
Court simply cannot conclude that the evidence discussed herein amounts to extreme and
outrageous conduct that “went beyond all possible bounds of decency” so that it can be
considered “utterly intolerable.” Finally, plaintiff has not presented evidence of mental anguish
as a result of her employment or the roundtable meeting.
Summary judgment is granted to defendants on this claim.
Conclusion
For the foregoing reasons, defendants’ Motion for Summary Judgment is granted.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
Dated: 3/5/19

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