Timm v. Wright State Univ

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Timm v. Wright State Univ., et al. No. 03-3371 ELECTRONIC CITATION: 2004 FED App. 0212P (6th Cir.) File Name: 04a0212p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: John R. Folkerth, Jr., FOLKERTH & FOR THE SIXTH CIRCUIT FOLKERTH, Dayton, Ohio, for Appellant. Terence L. _________________ Fague, COOLIDGE, WALL, WOMSLEY & LOMBARD CO., Dayton, Ohio, for Appellees. ON BRIEF: John R. TERESA TIMM, X Folkerth, Jr., FOLKERTH & FOLKERTH, Dayton, Ohio, for Plaintiff-Appellant, - Appellant. Terence L. Fague, COOLIDGE, WALL, - WOMSLEY & LOMBARD CO., Dayton, Ohio, for - No. 03-3371 Appellees. v. - > _________________ , WRIGHT STATE UNIVERSITY, - OPINION et al., - _________________ Defendants-Appellees. - - BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Teresa N Timm filed suit against Wright State University, University Appeal from the United States District Court Provost Perry Moore, University President Kim Goldenberg, for the Southern District of Ohio at Dayton. and Janet Gibbs, alleging that the University violated a No. 99-00656—Thomas M. Rose, District Judge. number of her rights when it terminated her employment in December 1998. The district court granted summary Argued: June 10, 2004 judgment in favor of the defendants on all of Ms. Timm's claims. Ms. Timm appealed, arguing that the district court Decided and Filed: July 7, 2004 erred in its judgment on her First Amendment, Rehabilitation Act, and Equal Protection Clause claims. We affirm. Before: MARTIN and SUTTON, Circuit Judges; WILLIAMS, Senior District Judge.* I. Ms. Gibbs, an employee in the school's business and finance department, hired Ms. Timm as Director of Internal Audit for the University in November 1995. In June 1997, the University promoted Ms. Timm to Assistant Vice President for Business and Financial Services. Ms. Gibbs served as Ms. Timm's immediate supervisor throughout her employment with the University. * The Honorable Glen M. Williams, Senior United States District Judge for the W estern D istrict of V irginia, sitting by designation.

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After Ms. Timm assumed the role of Assistant Vice that the state auditor would determine whether any payments President, she and Dr. Susan Lightle compiled a list for Ms. were improper. After a number of other University Gibbs of candidates to fill the then-vacant auditor position. employees approached her about the audit, Ms. Timm gave In January 1998, Ms. Gibbs hired an Asian man whom Ms. audit-related documents to Mr. John Bale, an Associate Dean Timm considered less qualified than other candidates she and for the School of Medicine, whom she thought would pass Dr. Lightle evaluated. Ms. Timm alleges that Ms. Gibbs them to the new University President, Dr. Goldenberg. Mr. made her selection solely to diversify the racial makeup of the Bale is uncertain whether he passed the documents to Dr. office, and not because the man was the most qualified for the Goldenberg. position. At one point, Ms. Timm confronted Ms. Gibbs about her decision and warned her that her choice could have After Ms. Timm forwarded the documents to Mr. Bale, she negative legal ramifications. Ms. Gibbs also reports that Ms. alleges that Ms. Gibbs began treating her in a hostile manner. Timm grew increasingly resentful and hostile towards her Specifically, Ms. Timm alleges that Ms. Gibbs mocked her after the hiring. for suffering from depression and criticized her ability to communicate with other employees. In a related dispute, Ms. Gibbs reports that Ms. Timm defied her instructions when she invited candidates for the The working relationship between Ms. Timm and Ms. audit position to a party, where they met one another and Gibbs grew worse after Ms. Timm hired a graduate student mingled with University employees. In addition, Ms. Gibbs with whom she used to work to complete a computer project alleges that Ms. Timm reported to her who she and Dr. for the University. Ms. Gibbs alleges that she told Ms. Timm Lightle considered the most qualified for the auditor position not to hire her. After Ms. Gibbs learned that Ms. Timm after Ms. Gibbs specifically asked her not to reveal their entered into a contract with the graduate student, and that the choice to her. media had inquired about the contract, Ms. Gibbs reprimanded Ms. Timm and directed her to cancel the Another rift developed between Ms. Timm and Ms. Gibbs contract. in March 1998 following the death of former University President, Dr. Harley E. Flack. Ms. Timm accused Ms. Gibbs Another disagreement developed between Ms. Timm and of improperly allocating University funds to cover expenses Ms. Gibbs after Ms. Timm unilaterally implemented a related to his funeral and the Flack family's move. Ms. Timm University charge-card system across the campus. Ms. Gibbs reports that two University employees approached her about alleges that she warned Ms. Timm not to implement the the allegedly improper expenses, and that both expressed a system unilaterally because of the technical problems that it fear that Ms. Gibbs would retaliate against them if they spoke would likely cause. Despite this alleged warning, Ms. Timm out. News of the allegedly improper expenditures leaked to implemented the system unilaterally and technical problems the media, and a state auditor was called to review the occurred. University's finances in July 1998. The audit found no evidence of impropriety. In September 1998, Ms. Timm filed a Notification Form with the University stating that she suffered from a mental or On several occasions during the state audit, Ms. Timm social disorder. She claims comments that Ms. Gibbs made directly asked Ms. Gibbs about certain expenditures. Ms. in the office, such as "this is insane," exacerbated her Timm alleges that Ms. Gibbs acted unconcerned and told her disorder. Throughout the months that followed, Ms. Timm

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states that Ms. Gibbs demeaned her and excluded her from Ms. Gibbs reports that she decided to terminate Ms. Timm certain meetings she had previously attended. in November 1998 based on four incidents of "gross insubordination" and the "unhealthy environment" she created In October 1998, the school's business-and-finance- in the office. The four incidents Ms. Gibbs recounted were: department staff, which included both Ms. Timm and Ms. Gibbs, participated in an annual retreat. At this retreat, Ms. (1) inviting candidates for the auditor position to a party Gibbs alleges that a number of senior staff members voiced after Ms. Gibbs specifically told her not to invite them; their concern about Ms. Timm's performance at work. Ms. Gibbs also states that during the retreat, Ms. Timm was (2) disclosing to Ms. Gibbs the candidate she and Dr. defensive and uncooperative. Lightle thought was most qualified for the auditor position after Ms. Gibbs told her not to tell her their Throughout November 1998, Ms. Timm alleges that Ms. preference; Gibbs demeaned her through e-mail messages and through their personal contact with one another. At one point in (3) entering into a contract with a graduate student to November, Ms. Timm gave Ms. Gibbs a news clipping about complete a University computer project after Ms. Gibbs bullying in the workplace. Ms. Gibbs reports that she met warned her not to contract with her; and with Ms. Timm in November and advised her that many of the staff in their department had voiced concerns about (4) implementing a charge-card system unilaterally working with her. across the campus after Ms. Gibbs told her to implement it in a piecemeal fashion. A business department meeting was scheduled for December 2, 1998. In the weeks leading up to this meeting, App. 436-38. Ms. Timm states that she feared that Ms. Gibbs would humiliate her in front of her co-workers. Just days before the Ms. Timm's amended complaint alleged eight causes of meeting, Ms. Timm contacted Dr. Moore, the University action, including violations of the First Amendment, Provost, in an unsuccessful attempt to have him intervene and Rehabilitation Act, Equal Protection Clause, and various Ohio stop the meeting. On November 29, Ms. Timm sent an e-mail state laws. The district court granted summary judgment on to Ms. Gibbs restating her grievances and informing her that defendants' motion on all claims. Ms. Timm appealed the she would seek an attorney's advice if the situation did not judgment of the First Amendment, Rehabilitation Act, and improve. Equal Protection Clause claims.

On December 3, 1998, Ms. Timm received her notice of II. termination from the University and was escorted off the campus. When Ms. Timm retrieved her personal items on We review a grant of summary judgment de novo. January 15, 1999, she alleges that some of her files were Barnhart v. Pickrel, Schaeffer and Ebeling Co. L.P.A., missing and that some had been copied. In addition, her 12 F.3d 1382, 1388 (6th Cir. 1993). Summary judgment is computer's hard drive had been removed. proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A court considering a summary judgment motion considers the facts in a light most favorable to the

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nonmoving party and draws all reasonable inferences in favor IV. of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ms. Timm's second argument is that the district court erred in granting summary judgment in favor of defendants on her III. Rehabilitation Act claim. "'[I]f the plaintiff has direct evidence that the employer relied on his or her disability in Ms. Timm first alleges that the district court erred in making an adverse employment decision,' the plaintiff must granting summary judgment in favor of defendants on her prove that he or she is 'disabled.'" DiCarlo v. Potter, 358 First Amendment claim. To establish a prima facie claim for F.3d 408, 418 (6th Cir. 2004), quoting Monette v. Elec. Data retaliation in violation of the First Amendment's free-speech Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996). However, guarantee, Ms. Timm must show: (1) she was engaged in a constitutionally protected activity; (2) defendant's adverse if the plaintiff seeks to establish his or her case indirectly, action caused her to suffer an injury that would likely chill a without direct proof of discrimination, the plaintiff may person of ordinary firmness from continuing to engage in that establish a prima facie case of discrimination by showing activity; and (3) the adverse action was motivated at least in that: 1) he or she is disabled; 2) otherwise qualified for part as a response to the exercise of the plaintiff's the position, with or without reasonable accommodation; constitutional rights. Bloch v. Ribar, 156 F.3d 673, 678 (6th 3) suffered an adverse employment decision; 4) the Cir. 1998). employer knew or had reason to know of plaintiff's disability; and 5) the position remained open while the According to Ms. Timm, the University terminated her employer sought other applicants or the disabled employment because she spoke out about the expenses related individual was replaced. to President Flack's death. She argues that the roughly eight months that passed between the date she spoke out about the Dicarlo, 358 F.3d at 418, quoting Monette, 90 F.3d at 1186. expenses and her termination establishes a sufficient temporal nexus to conclude that the University was retaliating against Ms. Timm alleges that the district court did not consider all her. Ms. Timm also argues that the district court did not of the evidence she presented in support of her claim. To consider other evidence she presented and that it failed to support her claim, she argues that she was excluded from consider this evidence in a light most favorable to her. meetings, chastised for entering into a contract with a former colleague, and lied to about alleged criticisms from her We find no merit to Ms. Timm's argument. Eight months coworkers. However, other than the Notification Form she is a long period of time for an employer to wait to retaliate filed with the University stating that she suffered from a against an employee with a termination notice, and the mental or social disorder, she did not present any evidence evidence Ms. Timm presented does not change our indicating that she is actually disabled. "To be 'disabled' for perspective in this case. Moreover, we believe the reasons the . . . Rehabilitation Act, an individual must (1) have a Ms. Gibbs offered in support of her decision to terminate Ms. physical or mental impairment which 'substantially limits' Timm justify the action taken by the University. For these him or her in at least one 'major life activity,' (2) have a reasons, we find no genuine issue of material fact and, record of such an impairment, or (3) be regarded as having therefore, affirm the judgment of the district court on this such an impairment." DiCarlo, 358 F.3d at 418 (citations claim. omitted). Major life activities include "'functions such as

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caring for one's self, performing manual tasks, walking, support her claim, neither case presents a set of facts similar seeing, hearing, speaking, breathing, learning, and working.'" to her case. Moreover, neither of these cases nor her Mahon v. Crowell, 295 F.3d 585, 589 (6th Cir. 2002), quoting argument presents any evidence to establish that Ms. Timm 45 C.F.R. § 84.3(j)(2)(ii). In addition, Ms. Timm presented was discriminated against or was treated differently than other no evidence that indicated how the University could similarly situated non-protected employees. Therefore, we accommodate her disability, if she indeed suffers from one, or conclude that Ms. Timm failed to meet her burden of any of the other necessary elements of the claim. establishing a prima facie claim under the Equal Protection Clause. The judgment of the district court on this claim is We find no evidence that establishes a genuine issue of affirmed. material fact as to Ms. Timm's Rehabilitation Act claim. Thus, we affirm the district court's judgment on this claim. For the reasons stated herein, we AFFIRM the judgment of the district court in its entirety. V. The last issue Ms. Timm raises is that the district court erred in granting summary judgment in favor of defendants on her Equal Protection Clause claim. "To succeed on a § 1983 claim of this kind, against a public employer for an equal protection violation, the plaintiff must show that the employer made an adverse employment decision 'with a discriminatory intent and purpose.'" Sutherland v. Michigan Dep’t of Treasury, 344 F.3d 603, 614 (6th Cir. 2003), quoting Boger v. Wayne Cty., 950 F.2d 316, 324-25 (6th Cir.1991). Ms. Timm alleges that "outbursts" from Ms. Gibbs, which consisted of twice stating "this is insane" in response to various decisions made by Ms. Timm, as well as Ms. Gibbs asking Ms. Timm if she was on medication, suggesting that she work on her listening skills and visit a psychologist, all amount to evidence of mistreatment. She alleges that this supports an inference of ad hoc actions prompted by class- based discriminatory animus. As we stated previously, Ms. Timm presented no evidence that she actually suffers from a disability. Therefore, we find no merit to her argument that she is entitled to class-based protection. Although Ms. Timm cites Thomas v. Gee, 850 F. Supp. 665 (S.D. Ohio 1994) and Williams v. Ohio Dep’t of Mental Health, 960 F. Supp. 1276 (S.D. Ohio 1997), to