Tysinger v. Police Dept. of City

• Citation: 463 F.3d 569
• Decision Date: 25 September 2006
• Docket Number: No. 05-3785.,05-3785.
• Parties: Teresa TYSINGER, Plaintiff-Appellant, v. POLICE DEPARTMENT OF the CITY OF ZANESVILLE, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 569

463 F.3d 569

Teresa TYSINGER, Plaintiff-Appellant, v. POLICE DEPARTMENT OF the CITY OF ZANESVILLE, Defendant-Appellee.

No. 05-3785.

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2006.

Decided and Filed: September 25, 2006.

ARGUED: F. Benjamin Riek III, Cleveland, Ohio, for Appellant. Christopher R. Walsh, Earl, Warburton, Adams & Davis, Columbus, Ohio, for Appellee. ON BRIEF: F. Benjamin Riek III, Cleveland, Ohio, for Appellant. Christopher R. Walsh, Earl, Warburton, Adams & Davis, Columbus, Ohio, for Appellee.

Before MARTIN, NORRIS, and McKEAGUE, Circuit Judges.

McKEAGUE, J., delivered the opinion of the court, in which NORRIS, J., joined. MARTIN, J. (pp. 580-83), delivered a separate dissenting opinion.

OPINION

McKEAGUE, Circuit Judge.

Plaintiff-appellant Teresa Tysinger, a patrol officer and eight-year member of the City of Zanesville Police Department, brought suit against her employer alleging that she was subject to pregnancy discrimination, a form of sex discrimination, in violation of federal and Ohio law. After completion of discovery, the police department moved for and was granted summary judgment. The district court found that plaintiff had failed to make out a prima facie case. On due consideration, we affirm for the reasons that follow.

I. BACKGROUND

Teresa Tysinger was hired by the City of Zanesville Police Department on September 8, 1992. She worked as a patrol officer. In August 2000, she became aware that she was pregnant. Although she and her husband had one child prior to her employment with the Zanesville Police Department, this was her first pregnancy since becoming a police officer. Concerned that some of her duties, like "pushing vehicles and fighting with suspects," might endanger her unborn child, Tysinger raised her concern with her superiors almost immediately. Various alternative temporary assignments were discussed (i.e., detective bureau processing of vehicles in impound lots, and assignment to a desk job answering phone calls), but no action was taken. In September 2000, after Tysinger had been in a physical altercation with a suspect, her doctor prescribed a work restriction, providing that "Teresa is to be on light duty during her pregnancy." When she presented this to Police Chief Eric Lambes, he advised her that there was no light duty position within the department and that she would have to be off work until she was able to return to full active duty.

Tysinger's leave of absence commenced on September 27, 2000. In October or November 2000, she learned that Detective Cameron Bryant planned to leave the detective bureau in January 2001, thereby creating an open position within her prescribed work restrictions. She advised Chief Lambes of her interest in the position when it became available, but nothing came of it. Tysinger later learned that the detective bureau had been over-staffed since July 2000, when Sergeant Richard Roush returned to the department from the prosecutor's office. Hence, when Bryant left, his duties were assumed by the existing staff in the detective bureau. Tysinger essentially concedes that Bryant's departure did not result in an opening in the detective bureau that needed to be filled. Tysinger dep. pp. 76-79, JA 175-76.

Tysinger gave birth on March 26, 2001, and returned to work in June 2001. On April 30, 2001, she filed a charge of discrimination with the Equal Employment Opportunity Commission and the Ohio Civil Rights Commission. Her EEOC right to sue letter was issued on September 18, 2001. Tysinger timely commenced this action by filing a two-count complaint. Count I asserts a claim for pregnancy discrimination under Title VII, 42 U.S.C. §§ 2000e-(2)(a)(1) and 2000e-(k). Count II sets forth a parallel pregnancy discrimination claim under Ohio law, R.C. §§ 4112.02(A), 4112.99. Essentially, Tysinger alleges that the Zanesville Police Department engaged in sex discrimination when it denied her accommodation of her pregnancy, despite having suitable positions available, and despite having granted accommodations to other similarly situated non-pregnant workers in the past.

The Zanesville Police Department moved for summary judgment on both federal and state pregnancy discrimination claims. The district court concluded that Tysinger had failed to make out a prima facie case because she had failed to adduce evidence demonstrating that she had been subjected to disparate treatment because of her pregnancy. In addition, the court held that Tysinger had failed to rebut defendant's legitimate nondiscriminatory reason for its actions by showing it to be pretextual. The court thus awarded summary judgment to the police department on Tysinger's pregnancy discrimination claims.

However, insofar as Tysinger's complaint could be construed as setting forth federal and state sex discrimination claims apart from the alleged pregnancy discrimination, the complaint survived. Specifically, the district court determined that the complaint included allegations supportive of federal and state claims that Tysinger applied for and was rejected for an open position in the detective bureau because she is a woman. Defendant filed a second motion for summary judgment attacking the surviving claims. On May 2, 2005, the district court granted this motion as well, concluding, on closer inspection of the complaint, that Tysinger had not in fact alleged any sex discrimination claims apart from pregnancy discrimination.

On appeal, Tysinger challenges both rulings and presents two claims of error. She contends the district court erred (1) by failing to properly consider her evidence of similarly situated non-pregnant employees who received more favorable treatment; and (2) by dismissing her alternative sex discrimination claims as not having been properly pleaded.

II. ANALYSIS

A. Standard of Review

The court of appeals reviews de novo an order granting summary judgment. Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir.2005). Summary judgment is proper "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). The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Id. Not just any alleged factual dispute between the parties will defeat an otherwise properly supported motion for summary judgment; the dispute must present a genuine issue of material fact. Leadbetter v. Gilley, 385 F.3d 683, 689-90 (6th Cir.2005). A dispute is "genuine" only if based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party. Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir.2004). A factual dispute concerns a "material" fact only if its resolution might affect the outcome of the suit under the governing substantive law. Id.

B. Proper Defendant

We note at the outset that the named defendant in this action, the Police Department of the City of Zanesville, is not a juridical entity subject to suit under Ohio law. See Crawford v. Zeitler, 326 F.2d 119, 121 (6th Cir.1964); Johari v. City of Columbus Police Dep't, 186 F.Supp.2d 821, 825 (S.D.Ohio 2002); Fenstermaker v. City of Dayton, Ohio, 712 F.Supp. 639, 644 (S.D.Ohio 1988). The police department is a subdivision of a municipal corporation, the City of Zanesville, which is subject to suit. R.C. § 715.01. The City of Zanesville, Tysinger's actual employer, ought to have been the named defendant in this action. Yet, inasmuch as the issue has not been raised by either party or the lower court, and considering that adjudication by default is disfavored, we liberally construe the complaint as having been brought against the City of Zanesville and proceed to consider the merits of Tysinger's claims.

C. Pregnancy Discrimination

1. Prima Facie Case

The federal and state pregnancy discrimination claims are evaluated generally under the same substantive standards. See Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 471-72 (6th Cir. 2005); Cleveland v. Federal Express Corp., 83 Fed.Appx. 74, 81 n. 2 (6th Cir.2003). Under the Pregnancy Discrimination Act provisions of Title VII, discrimination because of or on the basis of pregnancy, childbirth, or related medical conditions is defined as a kind of sex discrimination and is prohibited. 42 U.S.C. § 2000e(k). Women who are affected by pregnancy, childbirth or related medical conditions are required to be treated the same, for all employment purposes, as other persons not so affected but who are similar in their ability or inability to work. Id.

Plaintiff Teresa Tysinger's claims are not premised on direct evidence of pregnancy-based discriminatory animus. Therefore, her claims are subject to analysis under the evidentiary framework established in McDonnell Douglas v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Prebilich-Holland v. Gaylord Entertainment Co., 297 F.3d 438, 442 (6th Cir.2002). To sustain her claims, as a threshold matter, she must satisfy the elements of a prima facie case by showing that "(1) she was pregnant, (2) she was qualified for her job, (3) she was subjected to an adverse employment decision, and (4) there is a nexus between her pregnancy and the adverse employment decision." Id. (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir.2000)).

The district court concluded, viewing the evidence in the light most favorable to Tysinger, that triable fact issues were presented as to each of the first three elements. Regarding the second element, defendant City of Zanesville questions whether Tysinger was in fact "qualified" for her patrol officer position after she became pregnant. Although Tysinger had competently performed as a patrol officer for some eight...