Macy v. Hopkins County School Bd. of Educ.

• Decision Date: 12 April 2007
• Docket Number: No. 06-5722.,06-5722.
• Parties: Sharon MACY, Plaintiff-Appellant, v. HOPKINS COUNTY SCHOOL BOARD OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

484 F.3d 357

Sharon MACY, Plaintiff-Appellant, v. HOPKINS COUNTY SCHOOL BOARD OF EDUCATION, Defendant-Appellee.

No. 06-5722.

United States Court of Appeals, Sixth Circuit.

Argued: March 8, 2007.

Decided and Filed: April 12, 2007.

ARGUED: Robert S. Silverthorn, Jr., Louisville, Kentucky, for Appellant. J. Keith Cartwright, Frymire, Evans, Peyton, Teague & Cartwright, Madisonville, Kentucky, for Appellee. ON BRIEF: Robert S. Silverthorn, Jr., Louisville, Kentucky, for Appellant. J. Keith Cartwright, Frymire, Evans, Peyton, Teague & Cartwright, Madisonville, Kentucky, for Appellee.

Before MOORE and GIBBONS, Circuit Judges; SARGUS, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Sharon Macy ("Macy") appeals the district court's order granting summary judgment to Defendant-Appellee Hopkins County School Board of Education ("the Board"). Macy alleged that the Board violated federal and state law by firing her because she was disabled and in retaliation for protected activities. The Board asserted that Macy was fired for threatening students and making inappropriate remarks about the students and their families, and that this was the latest in a series of incidents of misconduct. The district court granted the Board's motion for summary judgment, concluding that Macy had not introduced direct or circumstantial evidence sufficient for a jury to find that she was fired because of her disability or in retaliation for protected activities. Because Macy has not presented evidence from which a reasonable jury could conclude that the Board's proffered reason for firing her was pretextual, and because Macy has forfeited her retaliation claims and state-law claims, we AFFIRM the judgment of the district court.

I. BACKGROUND

Sharon Macy was employed as a physical-education teacher by the Hopkins County School Board of Education from August of 1981 until November 30, 2000. On June 6, 1987, Macy suffered a head injury in a bicycle accident. She returned to work, but aggravated her injuries in another accident in 1996. Soon after, the Board and Macy agreed to implement certain accommodations as a result of Macy's head injuries.

Macy and the Board developed a "Section 504 Individualized Accommodation Plan" ("504 Plan"), which listed Macy's disabling condition as "post concussive syndrome" and described such symptoms as "[r]ecurrent headaches, difficulty with attention and concentration, short term memory deficits, disrupted sleep, depression and/or anxiety, irritability with others and outbursts of anger." Joint Appendix ("J.A.") at 204, 208. The 504 Plan described the impact of Macy's condition and listed accommodations that the Board and Macy were to implement. For example, the 504 Plan noted that Macy "may need to leave her classroom suddenly due to acceleration of symptoms identified in medical diagnosis" and that her classroom "needs to be as organized and as free from disruptions as possible so that the opportunities for loud disruptions or outbursts are minimal thus decreasing Ms. Macy's chances of becoming frustrated, anxious or inattentive." J.A. at 205, 209. Additionally, Macy requested that she be allowed to have a colleague present during meetings with parents or administrators "for assurance and retention purposes." J.A. at 206, 210.

Macy complained approximately ten times that Daryl Herring ("Herring"), the principal of the middle school at which Macy worked, did not properly implement the 504 Plan. Each time, Macy contacted assistant superintendent Linda Zellich ("Zellich"), the Board's "point person" for overseeing the 504 Plan. Macy testified that in response to her complaints, Zellich would call Herring or set up a meeting to discuss her complaint. Macy also testified that only once did Zellich not satisfy her complaints—when Macy requested a teacher's aide in August 2000.

On February 21, 2000, Macy filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and the Kentucky Commission on Human Rights. Macy alleged that Herring sent her a letter requesting that she report to work on time and that she complained to Zellich that Herring did not send similar letters to non-disabled employees who arrive late or sign in late. Macy alleged that Herring later sent her a letter of reprimand purportedly regarding another incident, but stated that she believed Herring's second letter was actually in retaliation for her complaints about the first letter.

On November 1, 2000, Macy was involved in an incident at South Hopkins Middle School, where she worked. As Macy left to go home that afternoon, she saw a group of boys playing basketball outside unsupervised. Macy claims that she brought the boys inside and lectured them about playing outside unsupervised, warning that they could have been seriously injured or killed. The boys claimed that Macy threatened to kill them and reiterated that "she meant it." J.A. at 145 (Macy v. Stevens, No.2001-CA-002756-MR, at 8 (Ky.Ct.App. Dec. 13, 2002)). The boys also claimed that Macy made inappropriate remarks about the marital status of their family members and about their sexual activity, including "derogatory comments about men to the effect that they raped women, that they got them pregnant and then left them." J.A. at 140, 145 (Macy, No.2001-CA-002756-MR, at 3, 8).

Following the incident, Superintendent James Lee Stevens ("Stevens") ordered an investigation into both the incident and any past problems involving Macy. On November 30, 2000, following the investigation, Stevens sent Macy a letter notifying her that, pursuant to KY.REV.STAT. § 161.790(1)(b), her employment contract was terminated effective immediately on the grounds of conduct unbecoming a teacher, citing the November 1 incident as well as thirty-one specific prior incidents.

Macy requested that an administrative tribunal review Stevens's decision, pursuant to KY.REV.STAT. § 161.790(3) and (4). See also KY.REV.STAT. § 13B.090. After a hearing, the tribunal determined that Macy's principal had failed to notify her properly of charges that she arrived late for work and that at least four infractions described in the termination letter were not supported by the evidence. However, the tribunal also concluded that Macy had indeed committed many of the other alleged infractions. Specifically, the tribunal determined that Macy had left the school building without signing out, pushed a chair off a stage, referred to a student as a "total loser," violated the policy on grades, kicked a trash can in response to student misbehavior, made derogatory comments about a parent and two other employees in front of a classroom of students including the child of the parent, sent a fake detention to the assistant principal, checked out early without ensuring that a fellow employee would cover her bus duty, improperly disciplined students, slammed a book against the floor and made derogatory comments about other employees during a meeting, and made statements that she would not follow discipline policies. J.A. at 119-20 (Tribunal Order at 2-3). Most importantly, the tribunal determined that Macy had actually threatened a group of boys on November 1, 2000, and "also made inappropriate statements about the marital status of children's families and made inappropriate remarks regarding the students' sexual activity." J.A. at 121 (Tribunal Order at 4).

On the basis of the evidence presented, the tribunal "f[ou]nd [] Macy guilty of conduct unbecoming a teacher, and the tribunal impose[d] the punishment of termination of her teaching contract." J.A. at 118 (Tribunal Order at 1). Macy appealed the tribunal's decision to the Hopkins County Circuit Court, see KY.REV.STAT. §§ 13B.140 & .150, which affirmed the decision on December 7, 2001. Macy further appealed to the Kentucky Court of Appeals, which affirmed on December 13, 2002. Macy filed a motion for discretionary review with the Kentucky Supreme Court, which denied the motion on August 17, 2005. On December 14, 2004, during the course of Macy's appeals, the Kentucky Education Professional Standards Board revoked Macy's teaching certificate for a period of ten years.

Meanwhile, Macy faced criminal charges stemming from the November 1, 2000 incident. The parties agree that on November 29, 2000, Macy was charged with nine counts of terroristic threatening in the third degree in violation of KY.REV.STAT. § 508.080.¹ Macy was convicted by a Hopkins County District Court jury. Her conviction was affirmed by the Hopkins County Circuit Court, and both the Kentucky Court of Appeals and the Kentucky Supreme Court denied discretionary review. The United States Supreme Court denied Macy's petition for certiorari. Macy v. Kentucky, 542 U.S. 938, 124 S.Ct. 2918, 159 L.Ed.2d 815 (2004).

Also during this time period, Macy's complaint with the EEOC and the Kentucky Commission on Human Rights was resolved. The Kentucky Commission on Human Rights dismissed Macy's complaint on June 21, 2001, "upon a finding of no probable cause to believe that the Respondent has engaged in an unlawful practice in violation of the Kentucky Civil Rights Act." J.A. at 130-31 (Ky. Comm'n on Human Rights Order). On August 16, 2001, the EEOC also dismissed Macy's complaint, indicating that it had "adopted the findings of the state or local fair employment practices agency that investigated this charge." J.A. at 132 (EEOC Dismissal & Notice of Rights).

On November 15, 2001, Macy filed a pro se complaint in the federal district court against the Hopkins County Board of Education. Through counsel, Macy filed an amended complaint on April 22, 2005, alleging five counts: (1) violation of the Americans with Disabilities Act ("ADA"); (2) retaliation for Macy's complaints regarding implementation of her 504 Plan; (3) retaliation for Macy's complaint filed with the EEOC; (4) discriminatory discharge in violation of the Kentucky Civil Rights Act, KY.REV.STAT. § 344.040; and (5)...