Decision Date26 June 1992
Docket NumberCiv. A. No. C-2-86-909.
Citation798 F. Supp. 1331
PartiesCarlyle B. HARRIS, et al., Plaintiffs, v. BOARD OF EDUCATION OF COLUMBUS, OHIO, CITY SCHOOL DISTRICT, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio



Webster Shoewalter Lyman, Columbus, Ohio, and Larry Delano Coleman, Kansas City, Mo., for plaintiffs.

Theodore Daniel Sawyer, Columbus, Ohio, Stephen David Martin, Worthington, Ohio, Lawrence Henry Braun and Larry Holliday James, Columbus, Ohio, for defendants.


GEORGE C. SMITH, District Judge.

I. Introduction

On July 28, 1986, plaintiff Carlyle B. Harris, proceeding pro se, commenced this action against the Columbus, Ohio Board of Education (hereinafter "CBOE"), James G. Hyre, Superintendent, Larry Cunningham, Unit Manager, Personnel Services, Michael J. O'Leary, Principal, South High School. Thereafter, on March 27, 1987, Plaintiff Harris filed an Amended Complaint adding Columbus Educational Association (CEA) and James C. Voyles, Jr., Principal, Starling Middle School as additional party defendants and joined as plaintiff Ethel P. Baldwin. Defendant CEA has been dismissed from this suit. This matter is now before the Court on defendants' Motion for Summary Judgment.

Plaintiff Harris, a black male teacher, alleges that he was forced to retire and/or was constructively discharged from his teaching position at South High School on January 31, 1985, following a special evaluation performed under § 401.03 of the Collective Bargaining Agreement (CBA) entered into between CBOE and CEA. See Opinion and Order, 11/23/88 at 1. Plaintiff Harris asserts that this act violates various civil rights statutes and was motivated by a discriminatory animus based upon his age, race, and handicap.

Plaintiff Baldwin, a black female teacher, alleges that she was forced to resign and/or was constructively discharged from her teaching position on April 17, 1984 following a special evaluation. Plaintiff Baldwin asserts that defendants violated various civil rights statutes and were motivated by a discriminatory animus based upon her race and gender. Opinion and Order 3/27/89 at 1.

Plaintiffs have articulated claims under 42 U.S.C. §§ 1981, 1983, 1985 and 1986, as well as claims under the Age Discrimination and Employment Act (ADEA), 29 U.S.C. § 623, Title VII of the Civil Rights Act, 42 U.S.C. § 2000e and pendant state law claims of defamation, breach of contract and intentional infliction of emotional distress.

II. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith 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 judgment as a matter of law." The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). Summary judgment, therefore, will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In a motion for summary judgment, the moving party bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the evidence submitted must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); accord Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-1456 (6th Cir.1984). The moving party is entitled to summary judgment "where it is quite clear what the truth is and where there are no unexplained gaps in documents submitted by the moving party pertinent to material issues of fact." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); accord County of Oakland v. Berkley, 742 F.2d 289, 297 (6th Cir.1984); Adickes, 398 U.S. at 157-60, 90 S.Ct. at 1608-10; Smith v. Hudson, 600 F.2d 60, 65 (6th Cir.), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979).

If the moving party meets its burden and if adequate time for discovery has been provided, the opposing party is required to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof as well. Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The mere existence of a scintilla of evidence in support of the opposing party's motion will be insufficient; plaintiff "must set forth specific facts showing that there is a genuine issue for trial." Davis v. Robbs, 794 F.2d 1129, 1130 (6th Cir.1986) (emphasis in original). As is provided in Fed.R.Civ.P. 56(e):

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Therefore, a party may not rest on the allegations contained in his pleadings to overcome a properly supported motion for summary judgment. First National Bank v. Cities Service Co., 391 U.S. 253, 259, 88 S.Ct. 1575, 1577, 20 L.Ed.2d 569 (1968) (footnote omitted).

Before a ruling on a motion for summary judgment can be made, the dispositive issues and factual inquiries relevant to the motion must be clearly delineated. With this standard in mind, the Court will proceed to consideration of the pending motion.

III. Facts

Plaintiff Harris, is as noted above, a black male, and was, until January 31, 1985, a full-time teacher, under a continuing contract with defendant CBOE. Amended Complaint ¶ 19. He had worked for CBOE for a period of fifteen years, and had continuously been engaged in the profession of teaching for a total of forty-one years. At the time of his separation with the Columbus City Schools he was sixty-nine years of age. Amended Complaint ¶ 18. He is certified to teach in the areas of biological science, physical education, drivers education and general science with the State of Ohio. Amended Complaint ¶ 20.

Plaintiff Harris alleges that defendants "sought by way of suggestion, innuendo, and comment to induce him to take early retirement" and when it became clear that he would not retire voluntarily used the "special evaluation" procedure in § 401.03 to obtain the same result. Amended Complaint ¶ 20.1 Harris contends that the special evaluation procedure was invoked by defendants in retaliation for his filing a complaint with the Ohio Civil Rights Commission, Charge No. XXXXXXXXX, which was based on plaintiff's non-selection for and/or promotion to the position of "Faculty Advisor/Athletic Director", in favor of a youthful (under 35) white female, and plaintiff's non-reassignment to teach biology classes for the 1983 school year in favor of a younger white male, when he had greater seniority and experience than both selectees. Amended Complaint ¶ 23. Following his separation from the employ of defendants, Plaintiff Harris filed a second Ohio Civil Rights Commission complaint, Charge No. 0528535887, in which he realleged the substance of the first complaint and further alleged forced resignation and/or constructive discharge. In addition, Harris alleged that the special evaluation was the culmination of a "campaign of harassment" against him by CBOE, evidenced by: its denial of a previously approved request to take students on a biological and cultural exchange trip to the Bahamas; the reluctance of South High School, particularly Principal O'Leary, to promote Black History Month; the absolute refusal of defendant Hyre to meet with him, despite plaintiff's repeated attempts, even though Hyre would regularly see white employees; the "severe verbal abuse" of defendant Cunningham directed at plaintiff in contravention of sections 404.02, 404.06, and 404.07 of the CBA; the denial of supplemental contracts to plaintiff when such contracts were regularly given to white, younger, and non-handicapped teachers; the preemptory scheduling for a physical examination by the defendant Board's physician; and, finally, the special evaluation in which he was rated unsatisfactory in four areas when he had previously received a satisfactory regular evaluation just six months earlier.

Defendants contend that Plaintiff Harris was subjected to special evaluation solely because health related concerns. South High School Principal O'Leary testified that "to oversimplify things, the only reason Mr. Harris was under scrutiny was because of the fact that we felt the man was not up to the standards that he previously possessed." O'Leary Depos. at 126. Mr. O'Leary's deposition presents a picture of Mr. Harris as a teacher, who because of health reasons, was no longer able to teach. For example, there were allegations that Harris had been observed by other teachers and students as being asleep during class. Id. at 10. O'Leary admitted that both students who accused Harris of sleeping were receiving failing grades in his class. Id. at 114. There were also accusations that Harris did not know the material he was teaching, Id. at 69, that he was teaching the same material day after day, Id. at 67, and that he would become confused and take roll more than once during a class period. Id. at 79. However, O'Leary conceded that during his personal observation of Harris's class "I didn't see him sleeping ... he was alert and lucid and all those good things...." Id. at...

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