Gragg v. Somerset Tech

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Gragg v. Somerset No. 02-6387 ELECTRONIC CITATION: 2004 FED App. 0190P (6th Cir.) Technical College, et al. File Name: 04a0190p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Winter R. Huff, LAW OFFICES OF JOHN G. _________________ PRATHER, Somerset, Kentucky, for Appellant. D. Brent Irvin, OFFICE OF THE ATTORNEY GENERAL, Frankfort, SHARON L. GRAGG, X Kentucky, for Appellees. ON BRIEF: Winter R. Huff, Plaintiff-Appellant,- LAW OFFICES OF JOHN G. PRATHER, Somerset, - Kentucky, for Appellant. D. Brent Irvin, OFFICE OF THE - No. 02-6387 ATTORNEY GENERAL, Frankfort, Kentucky, for v. - Appellees. > , SOMERSET TECHNICAL _________________ - COLLEGE , et al., - OPINION Defendants-Appellees. N _________________

Appeal from the United States District Court BOYCE F. MARTIN, JR., Circuit Judge. Sharon L. Gragg for the Eastern District of Kentucky at London. appeals the district court’s adverse award of summary No. 97-00457—Karen K. Caldwell, District Judge. judgment on numerous claims arising from her layoff from the Kentucky Workforce Development Cabinet. We Argued: March 9, 2004 AFFIRM.

Decided and Filed: June 22, 2004 I. FACTUAL AND PROCEDURAL BACKGROUND

Before: MARTIN and CLAY, Circuit Judges; MILLS, Prior to her October 1996 layoff from the Kentucky District Judge.* Workforce Development Cabinet’s Department of Technical Education at the age of fifty-five, Gragg had worked as a regional educational consultant assigned specifically to the Kentucky-Tech Somerset campus. Gragg’s duties in that capacity included performing a comprehensive study of the Kentucky-Tech Somerset school every five years, coordinating the school’s certified nurse aide program, scheduling nurse aide classes and administering tests. Dr. Carol Ann VanHook was Gragg’s immediate supervisor; Dr. * Ann W. Cline, the Director of the southern region of the The Hon orable R ichard M ills, United States District Judge for the Kentucky-Tech schools, was VanHook’s immediate Central District of Illinois, sitting by designation.

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supervisor; William Huston was the Commissioner of the appeal for lack of jurisdiction. The Kentucky Court of Department; and Delmus Murrell was the Deputy Appeals upheld that dismissal. Commissioner of the Department, as well as Secretary of the Board for Adult and Technical Education. Gragg next sought and obtained from the Equal Employment Opportunity Commission a right to sue letter, In early 1996, the Kentucky General Assembly reduced the and she proceeded to file a complaint in federal district court Department’s authorized full-time workforce, thereby against Somerset Technical College, Cline, VanHook, necessitating the elimination of a number of positions. Huston, Murrell and other defendants. The crux of Gragg’s Huston circulated memoranda to certain high-level complaint, which asserted numerous federal and state claims, administrators in April, asking for assistance in determining is that her position was chosen for abolition because of her which positions should be eliminated in order to comply with age and gender, and in retaliation for her criticism of the the legislatively-mandated workforce reduction. According school and the defendants. Gragg’s retaliation claims are to Huston, this determination was to be made with based upon the following four allegations of speech: consideration of the following factors: (1) “Savings by (1) Gragg criticized Somerset’s accreditation process, restructuring;” (2) “Program Assessment – Progress made including VanHook’s conduct in connection with the process; during last 12 months;” (3) “Analyze staffing patterns in (2) Gragg advised an employee funded under the federal Job Frankfort, Regional Office and School levels;” and (4) “Can Training Partnership Act that she should file a complaint necessary functions be combined.” against VanHook for allegedly misusing federal funds by assigning a secretary paid out of those funds to a program not Based in part on Cline’s recommendation, Huston covered by the federal monies; (3) after Gragg’s pre- determined that Gragg’s position, among others, should be termination hearing, her attorney sent a letter to the Cabinet’s abolished. The Department agreed, and terminated the general counsel criticizing the process and the criteria used in regional educational consultant position that Gragg had held. determining which positions to terminate; and (4) Gragg Gragg’s was one of eight positions that were ultimately complained to VanHook that she and other employees should terminated; four of these positions had been held by women, receive overtime pay for their work on a particular project. and four by men. Following her layoff, Gragg applied for other positions within the Department. She was eventually On January 29, 2001, the district court granted summary re-hired by the Kentucky-Tech school system and currently judgment in favor of the defendants on Gragg’s federal and works at the “Northpoint (prison) school.” state age and gender discrimination claims, federal and state due process claims, state whistleblower claim and Gragg challenged her layoff by filing in state court an constitutional challenge to section 151B.086 of the Kentucky administrative appeal under section 151B.086 of the Revised Statutes. The court also awarded summary judgment Kentucky Revised Statutes, which permits an employee, in favor of the defendants on Gragg’s speech retaliation claim within thirty days of the effective date of her layoff, to appeal concerning her request for overtime pay, holding that Gragg’s the layoff on the ground that applicable statutory procedures speech was not constitutionally protected. The defendants’ were not followed. The trial court found that Gragg’s appeal summary judgment motion was denied, however, as to the was untimely filed, however, and accordingly dismissed the other three speech retaliation claims, and the defendants filed an interlocutory appeal to this Court challenging that ruling.

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On interlocutory appeal, this Court held that the speech community....’ The inquiry is made based on by ‘the alleged in those three claims was not constitutionally content, form, and context of a given statement, as protected and, accordingly, ordered that summary judgment revealed by the whole record.’ Speech does not be entered for the defendants on those claims. Gragg v. generally touch on a matter of public concern, as that Kentucky Cabinet for Workforce Dev., 289 F.3d 958, 967 (6th requirement has been interpreted, where its aim is to air Cir. 2002). On remand, the district court entered an order, or remedy grievances of a purely personal nature. without opinion, dismissing Gragg’s complaint in its entirety. This appeal followed. Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d 1220, 1226 (6th Cir. 1997) (citations omitted). As the district II. ANALYSIS court recognized, Gragg’s motivation in requesting overtime pay was to ensure that she received compensation for A. Speech Retaliation Claims additional work; thus, her aim was “to air or remedy grievances of a purely personal nature.” Id. In our view, the We note at the outset that Gragg has devoted considerable “content, form, and context” of Gragg’s statement compel the argument to challenging this Court’s ruling on interlocutory conclusion that it was not a matter of public concern and, appeal concerning the three speech retaliation claims. That thus, was not constitutionally protected. We therefore hold ruling, however, constitutes the law of the case. United States that the district court properly awarded summary judgment in v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (explaining favor of the defendants on this claim. that findings made at one point in a litigation become the law of the case for subsequent stages of the same litigation). Our B. Age and Gender Discrimination Claims power “to reach a result inconsistent with a prior decision reached in the same case ‘is to be exercised very sparingly, Gragg next argues that the district court erred in dismissing and only under extraordinary conditions.’” In re Kenneth her age and gender discrimination claims under the Kentucky Allen Knight Trust, 303 F.3d 671, 677 (6th Cir. 2002) Civil Rights Act, as well as her identical gender (quoting Gen. Am. Life Ins. Co. v. Anderson, 156 F.2d 615, discrimination claim under Title VII. Generally, in order to 619 (6th Cir. 1946)). Because this case involves no such establish a prima facie case of discrimination under Title VII “extraordinary conditions,” id., we decline to disturb this or the Kentucky Civil Rights Act,1 a plaintiff must comply Court’s prior ruling. with the requirements set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Mitchell v. Toledo We must address, however, the one speech retaliation claim Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992). The analysis that was not at issue in the interlocutory appeal – i.e., the differs, however, in cases, such as this one, that involve a claim based upon Gragg’s alleged request for overtime pay. “reduction in force.” Barnes v. GenCorp Inc., 896 F.2d 1457, We hold that this request does not constitute protected speech because it is not a matter of public concern. 1 [A] particular expression addresses a matter of public The Kentucky C ivil Rights A ct’s discrimination provisions “track[] concern where it can ‘be fairly considered as relating to federal law and should be interpreted co nsonant with federal any matter of political, social, or other concern to the interpretation.” Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814 (Ky. 1 992 ).

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1465 (6th Cir. 1990). A prima facie case of discrimination in case of discrimination is established, “[t]he burden of a reduction in force case requires proof that the plaintiff was producing evidence of ‘pretext’ essentially merges with the part of a protected class, that she was qualified to perform the burden of persuasion, which always lies with the plaintiff.” job and that she was discharged; in addition, the plaintiff must Wilkins v. Eaton Corp., 790 F.2d 515, 522 (6th Cir. 1986). produce “additional direct, circumstantial, or statistical To meet that burden, Gragg would have to produce evidence evidence tending to indicate that the employer singled out the that the decisionmakers’ explanations were false and that plaintiff for discharge for impermissible reasons.” Id. “The gender or age discrimination was the real reason for the guiding principle [in a reduction in force case] is that the elimination of her position. See St. Mary’s Honor Center v. evidence must be sufficiently probative to allow a factfinder Hicks, 509 U.S. 502, 507-08 (1993). In this case, the to believe that the employer intentionally discriminated defendants have offered a legitimate reason for the abolition against the plaintiff because of age” or gender. Id. at 1466. of Gragg’s position. The southern region of the state – in It is undisputed that by virtue of her age and gender, Gragg which Gragg was employed – was the only region to have two was a member of a protected class. It is also undisputed that regional educational consultant positions; the other regions she was qualified to perform her former job of regional only had one each. Therefore, one of the southern region’s educational consultant and that she was discharged. The issue regional educational consultant positions had to be abolished is whether she has shown that the defendants impermissibly in order to achieve a uniform “staffing pattern” throughout the singled her out for discharge because of her age or gender. state. Gragg has offered no persuasive evidence indicating that this staffing pattern rationale was a pretext for In an effort to prove that the defendants terminated her discrimination. because of her age and gender, Gragg argues that younger males received better treatment than she received. Our Gragg argues that the defendants have failed to explain why thorough review of the facts and arguments in this case, they eliminated her position and not the other position, which however, leads us to the firm conclusion that none of the was held by John Spoo. Spoo is not similarly situated to younger males that Gragg has identified is “similarly-situated Gragg, however, because he worked for a different in all respects” to her. Mitchell, 964 F.2d at 583 (emphasis supervisor, had more seniority in the position and worked in added). In light of the significant differences that exist a more regional (as opposed to school-specific) capacity than between Gragg and each of the identified younger males, Gragg. In any event, the mere fact that the defendants chose Gragg cannot prove age or gender discrimination by Gragg’s position over Spoo’s, without more, simply does not comparing her treatment to theirs. Nor has she offered any suggest – let alone prove – any impermissible discrimination. other direct, circumstantial or statistical evidence indicating that her position was terminated because of her age or gender. Therefore, the district court properly granted summary Indeed, as the district court noted, the same number of men judgment in favor of the defendants on Gragg’s age and and women were laid off during the reduction in force. gender discrimination claims.

Moreover, even assuming that Gragg had established a C. Due Process Claims prima facie case of age or gender discrimination, she would be unable to prove that the defendants’ reason for abolishing Gragg also contends that the district court erred in her position was a pretext for discrimination. If a prima facie dismissing her federal and state due process claims against

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defendant Murrell. The essence of these claims is that positions. It is the cause element which confers upon the Murrell’s participation in various stages of the layoff process property right the imprimatur of constitutionality. violated Gragg’s due process right to an impartial Although plaintiffs may have had an expectation of decisionmaker. These claims fail, however, because Gragg continued employment it was a unilateral one and does has no protectible property interest in her continued not rise to the level of a constitutionally protected right. employment. Riggs v. Commonwealth, 734 F.2d 262, 265 (6th Cir. 1984). Gragg’s argument is based upon the assumption that a property interest is created by virtue of the fact that she was Like the layoff statute in Riggs, section 151B.085 contains an employee with “continuing status.” This assumption is no “cause” requirement where a continuing employee is laid false. Chapter 151B of the Kentucky Revised Statutes sets off because her position is abolished. Gragg clearly had a forth procedures that must be followed in connection with the right to insist that the Department follow the procedures set layoff of an employee with continuing status. Section forth in section 151B.085, see KRS 151B.086; Koo v. Comm., 151B.085, entitled “Procedures for layoffs,” articulates the Dep’t for Adult and Tech. Educ., 919 S.W.2d 531 (Ky. 1995), procedures that must be followed in the event of “[a] layoff of but she had no protectible property interest in her continued an employee with continuing status in the Department of employment. For that reason, the district court properly Technical Education due to the abolition of a position . . . .” awarded summary judgment in favor of the defendants on Section 151B.086, entitled “Appeal to board of layoff by Gragg’s due process claims.2 continuing status employee,” provides that: D. Claim Under the Kentucky Constitution (1) A continuing status employee may appeal his layoff on the grounds that the procedures in KRS 151B.085 Gragg’s final claim alleges that the defendants engaged in were not followed. arbitrary and capricious conduct in violation of section two of the Kentucky Constitution, which provides that “[a]bsolute (2) An appeal by a continuing status employee shall be and arbitrary power over the lives, liberty, and property of filed with the board within thirty (30) days of the freemen exist nowhere in the republic, not even in the largest effective date of the layoff. . . . majority.” In light of our conclusion that all other claims in this case were properly dismissed, the district court was In a case involving a statute similar to the one at issue here, entitled, as Gragg acknowledges, to dismiss this state law we concluded that the plaintiff employees, who had been laid claim as well. off, had no protectible property interest in their continued employment. As we explained: Clearly there is a distinction between a discharge and a 2 Gra gg’s lack of a protectible property interest in her continued layoff. Kentucky’s statute provides that a discharge employment also defeats her claim challenging the constitutionality of cannot take place absent cause. The Kentucky statute section 151B.086 of the Kentucky Revised Statutes, which was based governing layoffs contains no requirement to show upon the argument that the section unconstitutionally denies substantive cause. It permits layoffs due to . . . abolishment of due process to employees with a property interest in continued emp loyment.

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III. CONCLUSION For the foregoing reasons, the district court’s judgment is AFFIRMED.