Cooper v. City of North Olmsted

• Decision Date: 16 July 1986
• Docket Number: No. 85-3213,85-3213
• Parties: 41 Fair Empl.Prac.Cas. 425, 41 Empl. Prac. Dec. P 36,467 Lywanna COOPER, Plaintiff-Appellee, v. CITY OF NORTH OLMSTED, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1265

795 F.2d 1265

41 Fair Empl.Prac.Cas. 425,

41 Empl. Prac. Dec. P 36,467

Lywanna COOPER, Plaintiff-Appellee, v. CITY OF NORTH OLMSTED, et al., Defendants-Appellants.

No. 85-3213.

United States Court of Appeals Sixth Circuit.

Argued May 5, 1986.

Decided July 16, 1986.

Michael R. Gareau (argued), Director of Law, James M. Dubelko (argued), Asst. Director of Law, City of North Olmsted, North Olmsted, Ohio, for defendants-appellants.

Steven L. Howland (argued), Cleveland, Ohio, for plaintiff-appellee.

Susan Elizabeth Rees (argued), E.E.O.C., Washington, D.C., for amicus curiae.

Before KENNEDY and MILBURN, Circuit Judges, and JOINER, Senior District Judge. ^*

JOINER, Senior District Judge.

This is an appeal by the City of North Olmsted, et al. ("the City" "or defendant") from the judgment of the district court in favor of plaintiff-appellee Lywanna Cooper ("Cooper" or "plaintiff") on her Title VII and Sec. 1981 claims. The City raises two major issues before this court. First, the City challenges the district court's conclusion that plaintiff was not collaterally estopped in this suit by a prior administrative decision denying her unemployment compensation, when the administrative decision was affirmed by a state court. Second, the City argues that the district court incorrectly analyzed plaintiff's allegations of disparate treatment and retaliatory discharge.

Lywanna Cooper is the first female and first black to be hired as a bus driver by the North Olmsted Municipal Bus Line ("NOMBL"). Cooper began a one year period of probationary employment on July 1, 1979. Six to eight weeks later, she complained of harassment by her fellow bus drivers. This harassment included racist remarks made in Cooper's presence, offensive touching of her body, and crude bathroom graffiti about her. In response to Cooper's complaints, NOMBL repainted the bathroom and posted a notice indicating that discrimination would not be tolerated. No one was disciplined, however, and the harassment did not stop.

NOMBL maintained a "deficiency book" in which rules violations committed by bus drivers were recorded. During 1979, six violations by Cooper were entered in the book. On August 29, 1979, Cooper received a warning about parking her bus on Lorain Road with passengers on board. On October 5, 1979, plaintiff was cited for wearing non-regulation shoes that were too bright in color. On October 9, 1979, a "miss," or failure to arrive at work on time without first informing NOMBL, was recorded. On October 15, 1979, Cooper was cited for failing to relieve another driver at the proper place. On October 22, 1979, plaintiff was informed that she should not drive the bus with her foot propped over the emergency brake handle. On October 29, 1979, Cooper again was cited for failing to relieve another driver at the correct place.

Cooper filed a complaint with the Ohio Civil Rights Commission ("OCRC") on February 15, 1980, claiming harassment by the other NOMBL drivers. She alleged that the drivers' bathroom was again covered with graffiti about her, and that the other drivers were making bets about which of them could force her into an accident. In March, 1980, Cooper, NOMBL, the OCRC, and the Equal Employment Opportunity Commission ("EEOC") entered into a negotiated settlement agreement. The agreement required the repainting of the bathroom walls, the posting of a policy statement, and the disciplining of anyone caught engaging in discriminatory behavior. Cooper reported some improvement in her work situation following the agreement.

On February 26, 1980, one day after NOMBL received notice of Cooper's OCRC complaint, Cooper was cited for a miss. On March 14, 1980, a deficiency book entry indicates that plaintiff failed to pick up passengers at a certain point. On April 9, 1980, and on May 7 and May 9, 1980, Cooper was cited for running early. She was charged with a miss on both April 18 and May 28, 1980. On June 12, 1980, Cooper was cited for failing to pick up children at a school stop, leaving them stranded for one half hour. On June 19, 1980, Cooper was charged with leaving her bus unattended, running and open on a public street, arguably with children milling around.

NOMBL General Manager Ken Mues sent Cooper warning letters on June 2, and again on June 13, 1980. These letters were Cooper's first indication that deficiency book entries were being made about her, and that her job performance was being seriously questioned. On June 19, 1980, Mues learned of the charge that Cooper had left her bus unattended, with children milling around it. He decided to discharge Cooper immediately, and did so.

After being discharged, Cooper pursued a number of avenues for relief. First, on June 25, 1980, she filed charges of unlawful employment practices against the City with the OCRC. After an investigation, the OCRC found no cause to credit Cooper's allegations, and dismissed the charges. She did not request a reconsideration of this decision. Cooper also filed charges with the EEOC, which concluded, on June 9, 1980, that there was no cause to believe that Cooper's allegations were true. The EEOC issued Cooper a right to sue letter, enabling her to bring the present action.

Finally, on June 27, 1980, Cooper filed for unemployment benefits with the Ohio Bureau of Employment Services ("OBES"). She argued that she was entitled to benefits because her discharge was without just cause. On July 25, 1980, the OBES denied Cooper benefits on the ground that NOMBL had cause to fire her. Cooper appealed this decision to the OBES Board of Review, which also found against her. On November 26, 1980, Cooper further appealed to the Cuyahoga County Court of Common Pleas. The court affirmed the denial of benefits, finding that the administrative determination "was properly imposed, and was reasonable, lawful and supported by the manifest weight of the evidence." Cooper v. Board of Review, No. 20482 (Cuyahoga Cnty.Ct.Cmmn.Pleas Dec. 30, 1982). Cooper did not appeal from this decision.

On November 8, 1982, Cooper filed the present case in the United States District Court for the Northern District of Ohio. She charged the City with violating Title VII of the Civil Rights Act of 1964, U.S.C. Sec. 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981; and the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, by discharging her because of her race and sex, and because she filed discrimination charges with the OCRC. On September 2, 1983, the City moved for summary judgment, arguing that Cooper's claims were precluded by the prior ruling of the Cuyahoga County Court of Common Pleas. The district court denied the motion, 576 F.Supp. 592. The City then moved for summary judgment on the merits of Cooper's discrimination claims, and the court denied the motion.

After a bench trial, the district court entered judgment in favor of Cooper on her Title VII and Sec. 1981 claims, and dismissed her claim under Sec. 1983. The City now appeals from the judgment of the district court.

I. PRECLUSIVE EFFECT OF THE PRIOR STATE COURT JUDGMENT

The City first argues that the district court erroneously found that the final decision of the Cuyahoga County Court of Common Pleas did not preclude the claims raised in this lawsuit. This argument is based on the Full Faith and Credit Statute, which requires all United States courts to afford the same full faith and credit to state court judgments that would apply in the state's own courts. 28 U.S.C. Sec. 1738. In the present case, the City contends that the courts of Ohio would hold that the decision of the Court of Common Pleas precludes a subsequent discrimination claim. Therefore, the City argues, the district court should have reached the same conclusion.

The City's argument rests on the assumption that the courts of Ohio would apply the doctrine of collateral estoppel to the state court judgment, and hold that the judgment bars the present claims of discrimination. The seminal Ohio case on collateral estoppel is Norwood v. McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943). There the Ohio Supreme Court defined collateral estoppel as follows:

A point or a fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction may not be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different.

142 Ohio St. at 300, 52 N.E.2d 67 (syllabus p 3). More recently, Justice Holmes, writing for the Ohio Supreme Court in Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 200-01, 443 N.E.2d 978 (1983), stated that:

The main legal thread which runs throughout the determination of the applicability of res judicata, inclusive of the adjunct principle of collateral estoppel, is the necessity of a fair opportunity to fully litigate and to be "heard" in the due process sense. Accordingly, an absolute due process prerequisite to the application of collateral estoppel is that the party asserting the preclusion must prove that the identical issue was actually litigated, directly determined, and essential to the judgment in the prior action.

(citations omitted). Therefore, the City must prove that the issues of race and sex discrimination were actually and directly at issue in the prior state proceedings, and that they were essential to the judgment of the state court against Cooper.

The record in this case reveals that the question of whether Cooper's discharge was the result of race or sex discrimination by the City was not actually or directly presented to or ruled upon by the OBES or the Common Pleas Court. The prior state proceedings instead addressed Cooper's entitlement to unemployment benefits. Ohio Rev.Code Sec. 4141.29(D)(2)(a) (Page 1980) provides that an individual is ineligible for benefits if he or she "has been discharged for just cause in connection...