Gainor v. Worthington City Sch.
| Decision Date | 13 December 2013 |
| Docket Number | Case No. 2:11-CV-561 |
| Parties | KELLY GAINOR, Plaintiff, v. WORTHINGTON CITY SCHOOLS, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This matter is before the Court on the Defendants' Motion for Summary Judgment. Plaintiff, through her Complaint and Response in Opposition, brings the claims of Retaliatory Conduct pursuant to the ADA, the Rehabilitation Act, the IDEA, O.R.C. § 4112 "and other Ohio and Federal common and statutory law," and Intentional Infliction of Emotional Distress. For the reasons set forth herein, Defendants' motion is GRANTED.
Kelly Gainor ("Gainor" or "Plaintiff") brings this action against Worthington City Schools and Worthington School District Human Resources Director, Jeanne Paliotto ("Paliotto"), (collectively "Defendants") for alleged violations of the Americans with Disabilities Act, the Rehabilitation Act, and the Ohio Revised Code, as well as for intentional infliction of emotional distress, stemming from Gainor's employment in the Worthington School District ("WSD" or the "District").
Gainor began working in the District in 2003. After working in the food service department for one year, Gainor moved into a position as a teaching assistant at Bluffsview Elementary School, where she remained until 2008. During the 2007-2008 school year, Gainor, whose autistic son is a student in the District, became increasingly concerned about her son's Individual Education Program ("IEP"). On April 22, 2008, Gainor filed the first of approximately six complaints regarding her son's IEP with the Ohio Department of Education ("ODE").1 Human Resources Assistant Teresa Gresh ("Gresh"), Paliotto's assistant, was aware of the filings, and provided the relevant paperwork to Paliotto.
Following a meeting with her son's IEP team on October 20, 2008, Gainor filed another complaint with the ODE on November 4, 2008. In response to Gainor's complaints, and the complaints of other parents similarly affected, the ODE conducted an audit and investigation of the District. Paliotto was not involved in the investigation. The investigation resulted in corrective action through relevant District training.
At the beginning of the 2008-2009 school year, Gainor started a new job as a special education assistant at Worthington Kilbourne High School ("WKHS"). This was a position for which Gainor applied, interviewed, and subsequently accepted, with the knowledge that it involved a Behavior Learning Center ("BLC").2 At WKHS, Gainor reported to Assistant Principal Ken Nally ("Nally"). Nally was aware that Gainor had two sons in the school district, but did not, as Plaintiff alleges, know about her son's autism.3 As early as one week intoGainor's employment at WKHS, Nally was made aware of the ODE filing by the Department Chair for Special Education, Ellen Clark ("Clark"). According to Nally, Clark was particularly nervous about the data sheets Gainor was keeping for the intervention specialists in the department to collect behavioral information. Nally also spoke with the Director of Special Education, Lynne Hamelberg, regarding Gainor's ODE filings and related actions.
During that school year, Nally disciplined Gainor for various issues. Nally asked Gainor not to speak to a specific parent during the school hours. Gainor alleges that Nally asked her not to speak to parents of special education students, in general, while Nally contends that his request was limited to the particular parent involved in the relevant discussion with Gainor. In addition, Nally, per Gainor's request,4 investigated the claim that WKHS had directed students to monitor Gainor and to report on her behavior. On January 13, 2009, Gainor got into an altercation with one of her students, allegedly calling her a "fucking retard," and telling her to "drop out of school." Following an investigation, Nally decided that Gainor had not called the student a "fucking retard," and that Gainor's comment telling the student to drop out of school was taken out of context.
On February 12, 2009, the District conducted a disciplinary hearing with Gainor, which covered the following charges: 1) leaving work on January 15, 2009 at 12:30 p.m. without reporting off to her supervisor; 2) failing to perform her functions as a special education assistant due to Gainor's use of the classroom computer for personal matters; and 3) concern about Gainor's professional conduct, interaction with students, and choice of language. On February 18, 2009, Gainor filed a harassment complaint with the District, stating that any and alldisciplinary actions taken against her were the result of retaliation for her ODE filings, speaking with local newspapers about her experience in the District, documenting incidents through the data sheets, and advocating for her son. On March 3, 2009, Gainor received a letter from Paliotto, stating that as a result of the disciplinary hearing, Gainor would be suspended for one day.
On May 13, 2009, the District held a meeting with Gainor for the purpose of talking about her concerns and clarifying the District's expectations. On September 17 2009,5 the District conducted another disciplinary hearing, this time in regard to allegations of Gainor's insubordination and failure to follow work rules and procedures. As a result of this disciplinary hearing, Gainor was suspended without pay on October 12 and 13, 2009. On October 6, 2009, the same day she received a letter from Paliotto with the disciplinary hearing's outcome, Gainor filed a complaint with the Ohio Civil Rights Commission ("OCRC"), checking the boxes marked disability, retaliation, and reasonable accommodation.
At the beginning of the 2009-2010 school year, the District transferred Gainor to Granby Elementary school to work in another BLC. Gainor's new position required the same hours and provided the same pay as her job at WKHS. Gainor believed that working in another BLC would be problematic,6 and told Gresh that she could not accept the new position. Paliotto subsequently offered Gainor a position at Worthington Kilbourne Middle School ("WKMS") as an intervention specialist, working at the same pay rate for seven hours a day, which Gainor accepted. Following three instances of tardiness without notification, the District held a disciplinary hearing with Gainor, resulting in a letter of direction clarifying work rules and procedures.
In May 2010, Gainor received notice that, due to budget cuts, lack of funds, and lower enrollment, her job might be in jeopardy. The District maintained that they would notify her of any changes pursuant to the "bumping rights" in her Collective Bargaining Agreement. On June 15, 2010, Gainor received notice that her position had, in fact, been eliminated, and that effective June 30, 2010, she was reassigned to the position of intervention specialist at Worthingway Middle School ("WMS") for the 2010-2011 school year.7 Her new position provided the same pay rate, but was six hours per day rather than seven. Gainor did not file any grievance in response to her new position. It is undisputed that such a position change is within the right of the District.
In June 2010, Gainor applied and interviewed for an instructional assistant position and an intervention assistant position. In November 2010, she applied and interviewed for another instructional assistant position. In March 2011, Gainor applied for two different summer school positions, a pre-school position and a special education assistant. Though Gainor applied late, Gresh processed her application. She did not receive either position, and is currently employed at WMS as an intervention specialist.
Plaintiff filed this action on June 27, 2011, asserting the following claims against Defendants: (I) Disability Discrimination pursuant to the Americans with Disabilities Act ("ADA"), O.R.C. § 4112, and the Rehabilitation Act of 1973 ("RHA"); (II) Retaliatory Conduct pursuant to the ADA, the RHA, O.R.C. § 4112 "and other Ohio and Federal common and statutory law"; and (III) Intentional Infliction of Emotional Distress. (Compl., Doc. 1, 4-8.)
On December 28, 2012, Defendants moved for summary judgment on all claims. (Doc. 15.) In her responsive briefing, Plaintiff conceded that "it does not appear that she was the victim of disability discrimination" and, therefore, stated that she does not oppose Defendants' motion to dismiss Count I of her complaint. (Doc. 19 at 2.) Plaintiff does, however, oppose Defendants' motion with respect to Counts II and III of her complaint. In addition, Plaintiff raised a new argument of retaliation under the Individuals with Disabilities Education Act ("IDEA"). (Doc. 19 at 10-11).
Based on Plaintiff's addition of the IDEA retaliation claim, Defendants requested leave to file an amended motion for summary judgment, which the Court granted. (Doc. 20; Doc. 23). On October 4, 2013, Defendants again moved for summary judgment on Counts II and III. (Doc. 24). Oral argument was held, and this matter is, therefore, ripe for review.
Summary judgment is proper if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of that fact would establish one of the elements of a claim and would affect the application of governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)).
A movant for summary judgment meets its initial burden "by 'showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986)). At...
To continue reading
Request your trial