Plaintiff v. Smith

• Decision Date: 28 September 2010
• Docket Number: Case No. 09–CV–2604.
• Citation: 746 F.Supp.2d 877
• Parties: V. Erika SMITH, Ph.D., et al., Plaintiffs,v.BOARD OF TRUSTEES LAKELAND COMMUNITY COLLEGE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

746 F.Supp.2d 877

v. Erika SMITH, Ph.D., et al., Plaintiffs,

v.BOARD OF TRUSTEES LAKELAND COMMUNITY COLLEGE, et al., Defendants.

Case No. 09–CV–2604.

United States District Court, N.D. Ohio, Eastern Division.

Sept. 28, 2010.

James L. Hardiman, Robert Smith, III, Cleveland, OH, for Plaintiffs.James A. Hogan, Lee Ann Rabe, Rory P. Callahan, Office of the Attorney General, Columbus, OH, for Defendants.

MEMORANDUM & ORDER

KATHLEEN McDONALD O'MALLEY, District Judge.

Before the Court is Defendants' Motion for Partial Dismissal of Plaintiffs' Amended Complaint (Doc. 10). This motion has been fully briefed and is ripe for adjudication. For the reasons articulated below, Defendants' Motion is GRANTED in part and DENIED in part.

I. BACKGROUNDA. Factual Background ¹

1. The Parties

Plaintiff V. Erika Smith, Ph.D. (“Smith”) is an African American female formerly employed by Defendant Lakeland Community College (“Lakeland”) as an English instructor.²

The fifteen named Defendants can be divided into four groups: (1) the Board of Trustees of Lakeland Community College (“the Board”); (2) Lakeland; ³ (3) nine individually-named Board Members; ⁴ and (4) four individually-named Lakeland Officials/Employees.⁵ The Board Members are each sued in their capacity as board members and in their individual capacities. Similarly, the Lakeland Officials/Employees are all sued in their capacity as Lakeland employees and in their individual capacities. (Doc. 3 at 5.)

2. Smith's Employment with Lakeland

On August 16, 2006, Smith began her employment as a full-time tenure track instructor in Lakeland's English Department. (Doc. 3 at ¶ 12.) Smith was employed under a probationary contract for the 2006–2007 academic year, and was subsequently renewed for the 2007–2008 and 2008–2009 academic years. Smith alleges that she received student evaluations of approximately 4.5 out of 5 for each academic year. ( Id. at ¶¶ 13–14.)

As a full-time faculty member, Smith was a member of the Lakeland Faculty Association (“LFA”). As such, the “Agreement Between the Lakeland Faculty Association and the Lakeland Community College, 2008—2010” (“the CBA”) governed the terms of Smith's employment.

Pursuant to the CBA, faculty members were permitted to “select the courses that they would teach during any academic year based upon a method agreed upon with the specific academic department.” ( Id. at ¶ 18.) Smith alleges that, from August 2006 until the present, Lakeland's English Department permitted its faculty members to select the courses they would teach based on seniority. ( Id. at ¶ 19.) She further alleges that the chairman and/or co-chairman of the English Department had “no supervisory authority over full-time faculty members within the department.” ( Id. at ¶ 20.)

3. Defendants Meryl Soto–Schwartz and Donald J. Killeen

Several of Smith's claims stem from or relate to Defendant Meryl Soto–Schwartz and Defendant Donald J. Killeen's alleged conduct. At all times relevant to the Amended Complaint, Defendant Soto–Schwartz was employed as one of the co-chairs of Lakeland's English Department and Defendant Killeen was employed as Dean.⁶ (Doc. 3 at ¶ 5.)

According to Smith, Defendant Soto–Schwartz “has demonstrated a pattern of animus regarding African American faculty members, in the English Department and other academic departments.” ( Id. at ¶ 22.) Smith alleges that Defendants Morris W. Beverage, Jr. (Lakeland's President), Frederick W. Law (Lakeland's Vice President, Provost, and Dean of Faculty), and Killeen knew that Defendant Soto–Schwartz harbored animus towards African American faculty members. ( Id. at ¶ 21.)

4. The Dispute Regarding Smith's Course Selection

During an English Department meeting in the spring of 2008, Defendant Soto–Schwartz singled Smith out and verbally abused her regarding the courses she had selected to teach during the 2008–2009 academic year. ( Id. at ¶ 60.) Specifically, Smith selected to teach English 1111, which she alleges most other faculty members do not like to teach. ( Id. at ¶ 63.) According to Smith, Defendant Soto–Schwartz “has never made an issue of the courses selected by White English Department faculty members” and has never verbally abused white faculty members regarding their course selection. ( Id. at ¶¶ 61–62.)

In the summer of 2008, Smith met with Defendant Killeen to discuss her annual review and, at that time, Defendant Killeen, “suggested that she consider changing her course schedule for fall 2008.” ( Id. at ¶ 29.) According to Smith, deans of the various academic departments at Lakeland do not typically get involved in faculty members' course selection. ( Id. at ¶ 31.)

In the fall of 2008, English Department faculty were asked to submit their course schedules for the spring 2009 semester. Smith, exercising “her privilege and right under the CBA to select the courses of her choice,” again chose to teach English 1111 in the spring of 2009. ( Id. at ¶¶ 67–68.) On October 16, 2008, Smith sent Defendant Killeen an email indicating that she “exercised her right to choose” the courses she would teach for spring 2009. ( Id. at ¶ 35.) Smith copied two LFA officials on the email to Defendant Killeen. ( Id.)

Subsequently, on October 27, 2008, Smith met with Defendant Killeen to discuss her decision to teach English 1111. ( Id. at ¶ 36.) Although an LFA official was planning to attend the meeting to represent Smith, the official “decided that perhaps Defendant Killeen would feel threatened if she attended.” ( Id. at ¶ 37.) During that meeting, Defendant Killeen claimed that Smith never taught anything other than English 1111. ( Id.) Smith claims, however, that she also taught English 1120, 2250, and 2275. ( Id.) According to Smith, Defendant Killeen “became verbally abusive, condescending and displayed volatile behavior” toward her during the meeting. ( Id. at ¶ 38.) When Smith asked that the meeting be postponed so that she could have a union official with her, Defendant Killeen responded: “Why is it that every time I talk to someone in this office they're talking about the union?” ( Id. at ¶ 39.) According to Smith, Defendant Killeen has not been verbally abusive or displayed volatile behavior towards male faculty members. ( Id. at ¶ 40.)

On November 10, 2008, Smith received a letter from Defendant Killeen advising her that her decision to teach the course she selected “would have consequences.” ( Id. at ¶ 43.) Smith gave a copy of this letter to the LFA officials.

5. Non–Renewal of Smith's Probationary Contract

On or about January 23, 2009, Smith was notified that her probationary contract would not be renewed for the 2009–2010 academic year. (Doc. 3 at ¶ 3.) Smith alleges that her nonrenewal was based on Defendant Killeen's recommendation and that neither Defendant Law nor Defendant Beverage gave her an opportunity to present her side of the story. ( Id. at ¶¶ 46–48.)

6. Events Following Non–Renewal of Smith's Contract

Smith filed a grievance and appealed the nonrenewal of her probationary contract to the Board. She claims that the Board approved the nonrenewal “without ever hearing a presentation of the facts from either her or a representative of the LFA on her behalf.” ( Id. at ¶ 50.) Beyond this bare statement, however, there are no other allegations in the Amended Complaint regarding the LFA's participation in any grievance process on Smith's behalf.

Defendants allege, and Smith does not dispute, that she filed a unfair labor practice charge with the Ohio State Employment Relations Board (“SERB”). (Doc. 10 at 4 n. 1.) ⁷ The SERB dismissed the charge in September 2009, finding no probable cause to believe Lakeland violated O.R.C. § 4117.11 and that “[i]nformation gathered during the investigation revealed that Ms. Smith refused to sign up for additional courses as instructed by her supervisor, and informed [Lakeland] that she had no intention to teach the courses in the future.” (Doc. 10–1 at 1.) The SERB further found that protected activity did not appear to be a factor in Lakeland's decision to not renew Smith's contract. ( Id.)

Smith alleges that: (1) she filed a Charge of Discrimination with the Ohio Civil Rights Commission; and (2) on or about August 7, 2009, the EEOC issued a Dismissal and Notice of Suit Rights (Doc. 3 at ¶ 7.) In the Dismissal, the EEOC stated that it “adopted the findings of the state or local fair employment practices agency that investigated this charge.” (Doc. 1–1.)

7. The Collective Bargaining Agreement

It is undisputed that Smith's employment with Lakeland was subject to the CBA. The CBA at issue is an Agreement between the Lakeland Faculty Association and the Lakeland Community College and is effective from 2008 to 2010. Smith attached the relevant portions of the CBA to her original Complaint. (Doc. 1–2.)

a. Grievance Procedure (Article II)

Article II of the CBA sets forth a grievance procedure and provides that “exhaustion of this grievance procedure is required as to all disputes within its scope, as defined in Section A.” (Doc. 1–2 at 5 (Article II, § C(6))). Section A states that:

A grievance shall mean a claim of an employee, employees, or the Association that there has been a violation, misinterpretation, or misapplication of an express provision of this Agreement, or that it has not been equitably applied to the detriment of the grievant.

( Id. at 2 (Article II, § A(1))). The CBA's detailed five-step Grievance Procedure culminates in a “final and binding” appeal to an impartial arbitrator. ( Id. at 4 (Article II, § 5)).⁸ This section of the CBA further states that, “[n]othing contained herein shall deny to any individual or the College or the Association its rights under state or federal constitutions or law.” ( Id. at 4.)

b. Working Conditions (Article III)

There are several provisions in the CBA relating to faculty working conditions and scheduling. Of particular relevance to the allegations in Smith's Amended Complaint, the CBA contains a section...