Birch v. Cuyahoga County Probate Court

Decision Date01 December 2004
Docket NumberNo. 03-3228.,03-3228.
PartiesWanda BIRCH, Plaintiff-Appellant, v. CUYAHOGA COUNTY PROBATE COURT; John J. Donnelly, Presiding Judge, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Caryn M. Groedel, Caryn, Groedel & Associates, Beachwood, Ohio, for Appellant. Elizabeth S. Rudnick, Ulmer & Berne, Cleveland, Ohio, for Appellees. ON BRIEF: Elizabeth S. Rudnick, Stephanie E. Trudeau, Thomas H. Barnard, Jr., Ulmer & Berne, Cleveland, Ohio, Linda L. Woeber, Montgomery, Rennie & Jonson, Cincinnati, Ohio, for Appellees.

Before: KEITH, CLAY, and GIBBONS, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Plaintiff Wanda Birch, a magistrate in the Release of Assets Department of the Cuyahoga County Court of Common Pleas Probate Court ("Probate Court"), appeals the January 27, 2003 order of the United States District Court for the Northern District of Ohio, granting summary judgment in favor of the Probate Court and Defendant Judge John J. Donnelly, Presiding Judge of the Probate Court, on her claims for race and sex discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a), and under the Ohio Civil Rights Act, OH. REV. CODE ANN. § 4112.02; retaliation under 42 U.S.C. § 1983 and under the Ohio Civil Rights Act, OH. REV. CODE ANN. § 4112.02; violations of the Equal Pay Act, 29 U.S.C. § 206(d)(1); age discrimination, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq.; and for intentional infliction of emotional distress. For the reasons that follow, we AFFIRM the dismissal of Birch's Title VII and Equal Pay Act claims, as well as her claims for race discrimination, age discrimination, and intentional infliction of emotional distress. We REVERSE, however, the district court's dismissal of her sex-based wage discrimination claim under the Ohio Civil Rights Act.

I.
A. Substantive Facts

On September 7, 1993, Plaintiff Wanda Birch was hired as a Probate Court magistrate after interviewing with Probate Court Administrator/Magistrate John Polito, as well as Judge Donnelly, Presiding Judge.1 The Probate Court has six departments: Front Office, Accounts, Adoption, Guardianship, Psychiatric, and Release of Assets. Birch was hired as a Release of Assets magistrate and continues to serve in that capacity.

In 1998, the magistrates of the Domestic Relations Division of the Cuyahoga County Court of Common Pleas conducted a study of the salary levels of all the magistrates in each of the Divisions of the Court of Common Pleas as part of a state-wide survey of magistrate positions. The salary survey showed that the average salary of female Probate Court magistrates was lower than the average salary of male Probate Court magistrates, and that the highest paid female magistrate was earning less than the lowest paid male magistrate. Birch's salary was revealed to be the lowest of any of the magistrates in any of the divisions of the Cuyahoga County Court of Common Pleas. Upon learning the results of the salary survey, the four female Probate Court magistrates, including Birch, requested a meeting with Judge Donnelly and Magistrate Polito.

The four female magistrates met with Judge Donnelly and Magistrate Polito in October, 1998. In response to Birch's concern about her low salary, Judge Donnelly stated that certain departments in the Probate Court had more responsibility and therefore justified higher salaries compared to the Release of Assets Department. According to Birch, Judge Donnelly added, "I don't know how I would make these salaries fair. I rely on the men to do the important work of the Court."

Birch then asked Judge Donnelly why she was the lowest paid Magistrate at the court and whether he had a concern about her work. Judge Donnelly responded that he did not "trust her work," adding, "I would prefer that you not work here."2 When Birch asked if she was being fired, Judge Donnelly responded that she was not fired, only that he would prefer that she not work at the court. He also allegedly told Birch, "I don't have to hire women," and told all of the female magistrates that if they do not want to work at the court, they do not have to do so.

Birch alleges that following the meeting with Judge Donnelly, she was denied spill-over work from the Front Office Department for a period of time, as was Magistrate Heidi Koenig, who also had participated in the meeting with Judge Donnelly. Magistrate Koenig subsequently was promoted to a position in the Front Office in 2001. Birch also alleges that her work was subject to greater scrutiny in retaliation for her complaint about her lower salary.

B. Procedural History

On July 12, 2001, Birch filed a complaint against the Probate Court and Judge Donnelly, alleging race, sex and age discrimination, retaliation, and intentional infliction of emotional distress. On January 27, 2003, the district court granted Defendants' motions for summary judgment. Although the district court rejected Defendants' argument that Birch is not covered by Title VII, the ADEA, and the Equal Pay Act, it dismissed the race, sex and age discrimination claims on the ground that Birch had not shown an adverse employment action with respect to her failure-to-promote claim or that persons outside of her protected classes had been treated differently. With respect to Birch's wage discrimination claims brought under Title VII and the Ohio Civil Rights Act, the court held that Defendants' reasons for Birch's lower wages compared to the male magistrates on the Probate Court were legitimate and undisputed. The court stated:

The various magistrates perform widely divergent tasks, and many of these tasks are far more challenging and time-consuming than others. In the present case, while Birch was the lowest paid magistrate, it is uncontestably established before this Court that she lacked any job experience when she was hired, was the least senior magistrate, completed less challenging and less time-consuming work than other supervisory and non-supervisory magistrates, and performed in a manner that was substantively dissatisfactory to her employer.

As to her wage discrimination claim brought under the Equal Pay Act, the court held that Birch's magistrate position was not substantially equal to the higher-paid magistrate positions, and, in any event, the wage differential was justified on the basis of seniority and merit. The court dismissed the intentional infliction of emotional distress claim because Birch had failed to establish that Judge Donnelly's conduct toward her was sufficiently outrageous under Ohio law. The court never directly addressed Birch's retaliation claim, but the court's summary judgment order implicitly dismissed that claim as well.

On appeal, Birch has not contested the district court's dismissal of her race and age discrimination claims, nor her failure-to-promote claim and her claim for intentional infliction of emotional distress. Therefore, she has waived review of those portions of the district court's order. The remaining issues for review are whether the district court erred in dismissing Birch's claim for sex-based wage discrimination, whether brought under Title VII, the Equal Pay Act or the Ohio Civil Rights Act, and in dismissing her claims for retaliation under § 1983 and the Ohio Civil Rights Act.

II.
A. Standard of Review

This Court reviews de novo a district court's decision to grant summary judgment. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment must be granted if the pleadings and evidence "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). A dispute over a material fact is only a "genuine issue" if a reasonable jury could find for the nonmoving party on that issue. Cockrel, 270 F.3d at 1048 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In reviewing the district court's grant of summary judgment, this Court must view all the facts and the inferences drawn therefrom in the light most favorable to the nonmoving party. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

B. Birch's Coverage by Title VII and the Equal Pay Act
1. Title VII

Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual" because of sex. 42 U.S.C. § 2000e-2(a)(1) (emphasis added).3 Notwithstanding the statutory language that refers to "individual[s]," courts have limited Title VII's protections to individuals who are "employees." See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1242 (11th Cir.1998) ("The statute does not define `any individual,' and although we could read the term literally, we have held that only those plaintiffs who are `employees' may bring a Title VII suit.") (collecting cases). According to the statutory language:

[t]he term "employee" means an individual employed by an employer, except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency or political subdivision.

42 U.S.C.A. § 2000e(f).

Defendants argue that Birch is not an "employee" for Title VII purposes and, therefore, she...

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