McClain v. Northwest Comm. Corr. Cent. Jud. Corr.

• Citation: 440 F.3d 320
• Decision Date: 06 March 2006
• Docket Number: No. 05-3154.,05-3154.
• Parties: Lena McCLAIN, Plaintiff-Appellant, v. NORTHWEST COMMUNITY CORRECTIONS CENTER JUDICIAL CORRECTIONS BOARD, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

440 F.3d 320

Lena McCLAIN, Plaintiff-Appellant, v. NORTHWEST COMMUNITY CORRECTIONS CENTER JUDICIAL CORRECTIONS BOARD, Defendant-Appellee.

No. 05-3154.

United States Court of Appeals, Sixth Circuit.

Argued: February 2, 2006.

Decided and Filed: March 6, 2006.

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ARGUED: Catherine H. Killam, Sylvania, Ohio, for Appellant. Thomas M. Green, Green & Green, Dayton, Ohio, for Appellee. ON BRIEF: Catherine H. Killam, Sylvania, Ohio, R. Michael Frank, Arnold & Caruso, Toledo, Ohio, for Appellant. Thomas M. Green, Green & Green, Dayton, Ohio, for Appellee.

Before: NELSON, DAUGHTREY, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Plaintiff-Appellant Lena McClain appeals the district court's grant of summary judgment in favor of the defendant-appellees on her various due process and employment-discrimination claims. McClain, an African-American female, was employed as a Resident Specialist Coordinator (RSC) at NorthWest Community Corrections Center. Early in her employment she learned that she was making less money than a Caucasian male RSC and complained to her boss at a staff meeting. A few weeks later, after some complaints regarding her communication skills and inability to implement the philosophy of the corrections facility, McClain was fired. McClain was fired before the end of her 120-day probationary period.

McClain sued NorthWest Community Corrections Center Judicial Corrections Board, NorthWest Community Corrections Center, the Center's Executive Director James Wichtman, the Center's Program Director Rodney Fizer, and the Center's Operations Director Pamela Gunter-Fearheiley (collectively referred to as "NorthWest") in federal district court. She claimed, among other things, that NorthWest had violated her right to due process under state law and under the Federal Constitution, discriminated against her in her terms of employment on account of her race and gender, and fired her for complaining about her disparate pay.

The district court held that McClain was entitled to notice and a hearing prior to her termination under state law but that state law did not create an implied private right of action. The district court also ruled that McClain's right to due process under state law did not create a property interest protected by the Federal Constitution. The district court later granted NorthWest summary judgment on all of McClain's discrimination and retaliation claims.

McClain now appeals, arguing four contentions: (1) Ohio law provides an implied private cause of action for violation of the applicable state regulation, (2) her right under Ohio law to due process creates a property interest that is protected by the Federal Constitution, (3) her disparate treatment claims (one for disparate pay and one for termination) should have survived NorthWest's motion for summary judgment, and (4) her retaliation claims should have survived NorthWest's motion for summary judgment. We affirm in part and reverse in part. Summary judgment was warranted in favor of NorthWest as to McClain's state and federal due process claims. However, summary judgment was not warranted on McClain's discrimination claims or her retaliation claims.

I. Background

McClain was hired by NorthWest as an RSC on August 2, 1999, at a starting salary of $25,000. Serving five Ohio counties, NorthWest is a "community-based correctional facility" in which fifty to two hundred residents (i.e., inmates) reside and receive treatment. See Ohio Admin. Code § 5120:1-14-01(F). The duties of an RSC include overseeing the movement, transportation, control, and activities of the facility's residents in conformity with the established theories and practices of community-based corrections. From August until November 15, all staff members, including McClain, were preparing for the arrival of the residents. RSCs report to the Operations Director, Pamela Gunter-Fearheiley.

NorthWest's written offer of employment to McClain stated, "You will be required to serve an initial employment review period of 120 days. During this time your performance will be evaluated. Should your performance evaluation meet the standards as set by the program, you will be considered for continued employment." JA 189. Later, on or about October 20, 1999, NorthWest told its staff that "if you do your job, you'll have your job." JA 251. The Ohio Administrative Code § 5120:1-14-03(P) (Regulation P) in effect at the time of McClain's employment stated as follows:

Persons hired to staff community-based correctional facilities and programs shall be unclassified employees of judicial corrections boards or contract providers. Each judicial corrections board shall develop and adopt personnel policies and procedures for hiring, promoting, demoting, suspending, and removing its employees. The personnel policies and procedures shall provide for due process and equal employment opportunity.

This regulation was passed pursuant to Ohio Revised Code § 5120.111(A), which mandates that the state department of rehabilitation and correction "[a]dopt rules... that serve as criteria for the operation of community-based correctional facilities and programs...."

Around the time that NorthWest hired McClain, NorthWest also hired Dan McGee as an RSC. McGee is a white male, and he was hired with a starting salary of $27,000. The Executive Director of NorthWest, defendant James F. Wichtman, declared in his affidavit that McGee was paid $2000 more because of his "additional computer responsibilities." JA 193. Wichtman also declared that McGee had "experience working in a community-based correction facility in Ohio" and that the "position of [RSC] was considered a salary negotiable position." JA 193-94. As an RSC, McGee also reported to Gunter-Fearheiley.

In her affidavit, McClain declares that, early in her employment, she complained "from time to time" to Gunter-Fearheiley about her salary. Gunter-Fearheiley told McClain that $25,000 was all that the RSC position paid, and Gunter-Fearheiley told McClain in the presence of McGee, "You both make the same amount. I wish I could pay you both more." JA 241. McClain also declares that Gunter-Fearheiley asked her to retrieve from NorthWest's computer files a sample letter offering employment. McClain chose the letter to McGee, and she then discovered that McGee received a starting salary of $27,000. When McClain informed Gunter-Fearheiley of her discovery, McClain claims that her boss "became furious" and explained that McGee received more money because he had experience with community-based corrections. McClain declared that no one at NorthWest had claimed prior to her discharge that McGee had additional computer responsibilities.

William Jones, then NorthWest's Clinical Coordinator, described McClain and Gunter-Fearheiley's relationship before McClain's discovery as "very pleasant." JA 264. He also described them as "tight." JA 264. Jones also declared that, as he continued to observe McClain and Gunter-Fearheiley interact after McClain confronted Gunter-Fearheiley, it appeared that Gunter-Fearheiley "was out to get McClain." JA 264.

On November 9, 1999, McClain was promoted to Senior RSC and received a $2000 salary increase. She received this promotion despite NorthWest's policy that "[u]sually an employee in review status is not promoted to another position." JA 481. There was never any job description for the Senior position, and McClain declared that Gunter-Fearheiley only told her to "continue what you've been doing." JA 242. The position of Senior RSC was abolished shortly thereafter on November 30, 1999. McClain, however, retained her pay increase and returned to her former position as an RSC. With her retained pay increase, McClain was making $2000 more than the two Caucasian men, Bruce Mort and Mark Hall, who had recently replaced McGee and another RSC.

McClain also produced the affidavit of Laurence McCarthy, a Caucasian man, who was offered, but ultimately declined, a position as a Senior RSC. He declared that he was "offered ... $30,000 a year, base salary, plus $2,000 for computer work on [NorthWest's] Lotus Notes System, for a total of $32,000 a year." JA 238-39.

According to Wichtman, he received complaints about McClain before and after the arrival of the residents. McClain testified at her deposition that she heard from other co-workers that Gunter-Fearheiley had called McClain's co-workers on their day off to think about whether they had any problems with McClain, and she told them that they were going to have a "hats-off" meeting on December 13, 1999. A "hats-off" meeting allows employees to share their concerns about a particular employee, but it is not disciplinary in nature. At the meeting, McClain's co-workers told her that she was distant, had communication problems, and took credit for others' work. William Jones declared that Wichtman and Gunter-Fearheiley "dominated" the meeting. JA 264. Although McClain admitted at her deposition that she had communication problems with the staff, McClain refused to acknowledge the meeting in writing, as requested by her supervisors soon after the meeting.

On December 16, 1999, NorthWest gave her the option of resigning or being terminated. Upon McClain's request, NorthWest granted her administrative leave with pay to consult an attorney. She decided not to resign, so she was terminated on December 17, 1999, before the end of her 120-day probationary period. NorthWest told McClain that it fired her because of her "failure to maintain effective working relationships with associates and Coordinators .... Furthermore, [she] demonstrated an inability to implement the philosophy and emotional support for... the therapeutic community ...." JA 195.

Although McClain was fired for reasons not deemed serious enough to require counseling, discipline, or criticism prior to the "hats-off" meeting, evidence in the record indicates that a...