Vitt v. City of Cincinnati

Decision Date18 December 2002
Docket NumberNo. C-1-01-355.,C-1-01-355.
Citation250 F.Supp.2d 885
PartiesDebra Sue VITT, Plaintiff, v. CITY OF CINCINNATI, Defendant.
CourtU.S. District Court — Southern District of Ohio

Mark Joseph Byrne, Jacobs, Kleinman, Seibel & McNally, Cincinnati, OH, for plaintiff.

Augustine Giglio, Cincinnati, OH, for defendant.


SPIEGEL, Senior District Judge.

This matter is before the Court on Defendant City of Cincinnati's Motion for Summary Judgment (doc. 11), Plaintiffs Memorandum in Opposition (doc. 23), and Defendant's Reply (doc. 26).


This case concerns alleged racial discrimination against Plaintiff, a Caucasian, during her employment as administrative technician for the City of Cincinnati. Plaintiff alleges that on the second day at her position within the department of City Manager John Shirey, Plaintiffs supervisor Fannie Nicholes, an African-American, told her that she should think about changing her appearance due to the fact that she would be working with men and they might perceive her in a negative manner (doc. 1). This was the beginning of a bad relationship between Plaintiff and Ms. Nicholes that spanned from mid-1998 through 2000. In 2000, Plaintiff was given a new supervisor at her request, in a different department so that she would not have to interact with Nicholes, and others whom she accused of discrimination (doc. 11). Plaintiff complains that during her employment under Ms. Nicholes, she was instructed by Ms. Nicholes that only certain people on a certain level were entitled to speak to the City Manager, and that Plaintiff was not on that level (doc. 1). Plaintiff was also allegedly instructed not to speak to departmental directors, and was reprimanded for having contact with Congressman Rob Portman's office (Id.).

While Plaintiff was employed under Ms. Nicholes, she also had interpersonal conflict with a colleague, Gina Ruffin Moore, an African American, who allegedly spoke to Plaintiff in a rude and condescending manner (Id). When Plaintiff reported Ms. Moore's conduct to Ms. Nicholes, Ms. Moore allegedly stated that perhaps Plaintiff just resented the fact that two black females were telling her what to do (Id). Plaintiff allegedly protested that this was untrue, to which her supervisor Ms. Nicholes allegedly responded, "All white people are prejudiced, it's just subconscious with some. They just can't help it" (Id.). On another occasion, Ms. Moore gave her a copy of a book about slavery, and allegedly made remarks about slavery that Plaintiff could not specifically identify as offensive (doc. 11).

Plaintiff alleges that when she continued to report to Ms. Nicholes, Nicholes verbally abused her, gave her less than satisfactory performance evaluations, required her to perform unnecessary job duties, made racial remarks to her, singled her out for "brow beating" meetings, while treating Plaintiff unequally because of her race, in comparison to her co-employees (doc. 1). Plaintiff further alleges that she was left to take messages for Ms. Nicholes, Ms. Moore, and another African American colleague, Ms. Shirley Durham, while all three excluded her from participating in a seminar (Id). Plaintiff alleges that she was not provided with appropriate supplies, that she was denied training in Excel, PowerPoint, and in relation to the city's payroll system (Id). Plaintiff alleges that Ms. Nicholes and Mr. John Shirey accused her of loading up breakfast meetings with city malcontents and troublemakers, that she was not given enough time to complete work tasks, and that during one conversation with Ms. Moore, Moore stated that white women will not do black women's hair because they think they are too good and that black women have "cooties" (Id.). Finally, Plaintiff alleges that her position required her to remain at the front desk of City Hall, except for lunches and breaks when Ms. Dunham and Ms. Moore were periodically required to take her post, but at times would not show up, causing her to miss lunch (Id.). Plaintiff alleges that when she reported this to Ms. Nicholes, her complaints were disregarded (Id.).

According to Plaintiff, she took her concerns to City Manager John Shirey, who after one week approached her in a loud and condescending manner stating that he did not have time for people like her (Id). Though Plaintiff concedes that shortly after this, Mr. Shirey issued a memorandum to all City Employees prohibiting workplace discrimination, met with her in late fall 1999 and for two hours on March 9, 2000, and also issued a policy on a diverse and respectful workforce, she states that Shirey never contacted her to resolve "outstanding issues" and told her that though reverse discrimination occurs, "their side is the only one that gets heard" (Id.). On May 24, 2000, Plaintiff arrived for work and found the words "white bitch" etched into her desktop (Id.). In September 2000 Plaintiff filed an Equal Employment Opportunity Charge of Discrimination with the City of Cincinnati EEO Office, the same month, her supervisor was changed (Id.).

Plaintiff brings a claim pursuant to 42 U.S.C. §§ 2000(e)-2(a) et seq. based upon Defendants' alleged disparate treatment because of her race and the existence of a hostile environment based on her race. Plaintiff also brings parallel state race discrimination claims, alleging violation of Ohio Revised Code § 4112.02(A) and Ohio public policy. Plaintiff has abandoned prior claims for retaliation and for sex discrimination.

Defendants filed their motion for summary judgment alleging that Plaintiff did not suffer an adverse employment action nor was she treated differently than similarly-situated employees (doc. 11). Defendants further allege that Plaintiffs claim for a hostile work environment should be dismissed because no material issue of fact exists relating to such a claim (Id.). Defendants allege that Plaintiff cannot show that she was subjected to racial harassment, that the alleged harassment did not amount to a hostile work environment, nor that the employer failed to take reasonable care to prevent and correct any such harassing behavior (Id.). Defendants further argue that Plaintiffs claims are time barred, and that her state law claims are invalid for the same reasons her federal claims fail (Id.).

I. Standard of Review

The narrow question that this Court must decide on a motion for summary judgment is whether there exists a "genuine issue as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). The Supreme Court elaborated upon the appropriate standard in deciding a motion for summary judgment as follows:

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's ease, and on which that party will bear the burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party bears the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case. Id. at 321, 106 S.Ct. 2548; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir.1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). If the moving party meets this burden, then the non-moving party "must set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Guarino, 980 F.2d at 405.

As the Supreme Court stated in Celotex, the non-moving party must "designate" specific facts showing there is a genuine issue for trial. Celotex, All U.S. at 324, 106 S.Ct. 2548; Guarino, 980 F.2d at 405. Although the burden might not require the non-moving party to "designate" facts by citing page numbers, "`the designated portions of the record must be presented with enough specificity that the district court can readily identify the facts upon which the non-moving party relies.'" Guarino, 980 F.2d at 405 (quoting InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert, denied, 494 U.S. 1091, 110 S.Ct. 1839,108 L.Ed.2d 967 (1990)).

Summary judgment is not appropriate if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., All U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conclusory allegations, however, are not sufficient to defeat a motion for summary judgment. McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir.1990). Furthermore, the fact that the non-moving party fails to respond does not lessen the burden on the moving party or the court to demonstrate that summary judgment is appropriate. Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991).

II. Plaintiffs Title VII Claims.
A. Hostile Work Environment

Defendant correctly points out in its Motion for Summary Judgment that a plaintiff may establish a violation of Title VII by proving that the discrimination based on race created a hostile or abusive work environment. Meritor Savings Bank v. Vinson, All U.S. 57,66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Black v. Zaring Homes, Inc., 104 F.3d 822, 825 (6th Cir.) cert, denied, 522 U.S. 865, 118 S.Ct. 172, 139 L.Ed.2d 114 (1997). Discrimination in this form occurs "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) quoting Meritor Savings Bank, 477 U.S. at 65, 106 S.Ct. 2399. To establish a prima facie case, a plaintiff must show that (1) she was a member of a protected racial class, (2) she was subject to unwelcome sexual or...

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