Lautermilch v. Findlay City Schools

• Decision Date: 03 January 2003
• Docket Number: No. 01-3502.,01-3502.
• Citation: 314 F.3d 271
• Parties: John C. LAUTERMILCH, Plaintiff-Appellant, v. FINDLAY CITY SCHOOLS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

314 F.3d 271

John C. LAUTERMILCH, Plaintiff-Appellant, v. FINDLAY CITY SCHOOLS, Defendant-Appellee.

No. 01-3502.

United States Court of Appeals, Sixth Circuit.

Argued: October 29, 2002.

Decided and Filed: January 3, 2003.

COPYRIGHT MATERIAL OMITTED

David A. Bryan (argued), Francis J. Landry (briefed), Waserman, Bryan, Landry & Honold, Toledo, OH, for Plaintiff-Appellant.

C. Philip Baither III (argued and briefed), Robison, Curphey & O'Connell, Toledo, OH, for Defendant-Appellee.

Before SILER and MOORE, Circuit Judges; McKINLEY, District Judge.^*

SILER, J., delivered the opinion of the court, in which MCKINLEY, D.J., joined. MOORE, J., (pp. 276-78), delivered a separate dissenting in part.

OPINION

SILER, Circuit Judge.

Plaintiff John C. Lautermilch appeals the district court's grant of summary judgment to Defendant Findlay City Schools ("the Schools"). For the reasons stated below, we AFFIRM.

I.

In 1996, Lautermilch began working as a substitute teacher for the Schools. Like other substitute teachers, Lautermilch did not sign a contract for employment with the Schools.

In 1998, Principal Kathleen Crates and Assistant Principal Michael Kuri decided that Lautermilch would not be called again as a substitute teacher. They had several concerns regarding Lautermilch's behavior as a substitute teacher, including acting inappropriately with young people, tutoring a female student at his home, telling inappropriate jokes in the classroom, and commenting on the size of a female teacher's breasts. In addition, a student had reported Lautermilch as saying to her "Lips who [sic] touch alcohol may not touch mine, but it does not rule out any other part of my body."

Lautermilch states that he did tutor a female student in his home, and that he had made the "lips who touch alcohol" comment without "that vulgar addition to the end of it." Lautermilch states that at a November 1998 meeting, Principal Crates told him that he was "too macho" and that Principal Crates "spit the word macho out as if it was distasteful." Since then, the Schools have not called Lautermilch to be a substitute teacher.

In 2000, Lautermilch sued the Schools in the Northern District of Ohio, alleging sex discrimination, due process violation, First Amendment violation, and various state law claims. The district court granted the Schools' motion for summary judgment on all claims.

II.

This court reviews a district court's grant of summary judgment de novo. See Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir.1999). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Under this standard, the court must determine "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. In making this determination, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505.

Due Process

The Fourteenth Amendment prohibits state actors from depriving an individual of life, liberty, or property without due process of law. Lautermilch argues that the the Schools did not afford him due process before depriving him of his property interest in his job as a substitute teacher.

In Bailey v. Floyd Bd. of Educ., 106 F.3d 135 (6th Cir.1997), this court reviewed the standard for finding a protected property interest in government employment:

The existence of a property interest depends largely on state law. Government employment amounts to a protected property interest when the employee is entitled to continued employment. Neither mere government employment nor an abstract need or desire for continued employment will give rise to a property interest. Rather, a property interest exists and its boundaries are defined by rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Id. at 141 (internal quotes and citations omitted).

Under Ohio law, substitute teachers have no property interest in their continued employment:

Teachers may be employed as substitute teachers for terms not to exceed one year for assignment as services are needed to take the place of regular teachers absent on account of illness or on leaves of absence or to fill temporarily positions created by emergencies; such assignment to be subject to termination when such services are no longer needed.

* * *

Teachers employed as substitutes on a casual or day-to-day basis shall not be entitled to the notice of nonre-employment prescribed in section 3319.11 of the Revised Code....

O.R.C. § 3319.10.

Even without a statutory property interest, Lautermilch could claim a property interest in his employment had such an interest been conferred by contract. See Bailey, 106 F.3d at 141. Here, because Lautermilch did not enter into a written contract with the Findlay City Schools, he is an "at will" employee. See Henkel v. Educ. Research Council of America, 45 Ohio St.2d 249, 344 N.E.2d 118, 119 (Ohio 1976) ("The modern rule is that in the absence of facts and circumstances which indicate that the agreement is for a specific term, an employment contract which ... makes no provision as to the duration of the employment, is not a contract for one year, but is terminable at will b[y] either party.").

The district court correctly found that Lautermilch has not identified sufficient facts and circumstances from which a reasonable jury could find that he was anything other than an "at will" employee.

Sex Discrimination

Lautermilch argues that the district court erroneously analyzed his sex discrimination claims under a Title VII analysis rather than a § 1983 analysis. Although Lautermilch's complaint never mentions Title VII, "[t]o prove a violation of the equal protection clause under § 1983, [a plaintiff] must prove the same elements as are required to establish a disparate treatment claim under Title VII, i.e., under the McDonnell Douglas/Burdine framework." Jachyra v. City of Southfield, No. 95-1009, 1996 WL 520795, at *3 (6th Cir. September 12, 1996) (citing Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir.1988)).

Under the McDonnell Douglas/Burdine framework,

[t]he complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of ... discrimination. This may be done by showing (i) that he belongs to a [protected] minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Once a complainant fulfills his initial obligation, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Id. Once the employer articulates some legitimate, nondiscriminatory reason for the action, the complainant has an opportunity to show that the stated reason for rejection was in fact pretext. Id. at 804, 93 S.Ct. 1817.

Because Lautermilch has not provided any evidence that he was replaced by someone outside his protected class (one way to fulfill the fourth prong of McDonnell Douglas), he has failed to establish a prima facie case under the four prongs of McDonnell Douglas. Alternatively, Lautermilch seeks to establish his prima facie sex discrimination case through direct evidence of discrimination. In Laderach v. U-Haul of Northwestern Ohio, 207 F.3d 825 (6th Cir.2000), this court held that a plaintiff may establish a prima facie case of sex discrimination through direct evidence of discrimination. Id. at 829. Direct evidence is "that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Id. "Once there is credible direct evidence, the burden of persuasion shifts to the defendant to show that it would have terminated the plaintiff's employment had it not been motivated by discrimination." Id. In Laderach, the plaintiff presented credible direct evidence of discrimination: the shop foreman testified that on two occasions the defendant told him that he would not promote Laderach because of her sex and that he did not want Laderach to answer hotline telephone calls because "women are not mechanically inclined." Id.

Lautermilch attempts to hang his entire prima facie case on one offhand comment by Principal Crates (that he was "too macho"). This evidence does not "require[ ] the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions," and, therefore, he has not established a prima facie case under Laderach. Id. Specifically, when the comment is placed in the context of the termination hearing documenting specific allegations of misconduct, any reasonable trier of fact would conclude that the comment was critical of Lautermilch's behavior, not his sex or gender.

Even if Lautermilch had established a prima facie case of sex discrimination, the Schools would be entitled to summary judgment. The Schools have articulated a legitimate, nondiscriminatory reason for Lautermilch's discharge, and Lautermilch has not provided any significant evidence that the stated reasons for his termination were pretextual.

First Amendment

In determining whether Lautermilch's speech was constitutionally protected, the court must determine whether Lautermilch's speech can be "fairly characterized as constituting speech on a...