SATTERFIELD v. KARNES

67. There perhaps is some confusion within the Sixth Circuit as to whether temporal proximity alone may be enough to support an inference of a causal connection, but it suffices to say that in some circumstances — where only a small amount of time is at issue — temporal proximity may be enough.

Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality.

Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (6th Cir. 2008). Another method is to point to evidence showing that similarly situated employees who had not complained of harassment were treated differently from the plaintiff. Nguyen, 229 F.3d at 563.

Here, Satterfield points to the temporal proximity between her complaint and her termination, but she also argues that she was treated differently than other employees who had committed acts of dishonesty. In particular, she points to two deputies who admitted to committing acts of dishonesty but were not fired by the Sheriff. The first is Deputy Allison Engram, who admitted to misusing the computer system in the Sheriff's Office for non-law enforcement purposes. The second is Deputy Vonzell Powell, who was convicted of passing bad checks, cruelty to animals, and disorderly conduct. Neither was fired. This, she says, is dissimilar to the treatment she received after committing her own act of dishonesty — theft from Meijer — and gives rise to an inference that there was a causal connection between her complaint against Mann and her discharge.

The Sheriff correctly points out that claims of dissimilar treatment giving rise to an inference of a causal connection between a complaint and a retaliatory act require the existence of certain characteristics between those being compared. "The similarity between the compared employees must exist in all relevant aspects of their respective employment circumstances."Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994) (quoting Ruth v. Children's Medical Center, 940 F.2d 662 (Table), 1991 WL 151158, at *6 (6th Cir. 1991).

Thus, to be deemed `similarly-situated,' the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.

Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). That said, these factors are not an inflexible requirement. "Courts should not assume, however, that the specific factors discussed in Mitchell are relevant factors in cases arising under different circumstances, but should make an independent determination as to the relevancy of a particular aspect of the plaintiff's employment status and that of the non-protected employee."Ercegovich v. Goodyear Tire Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998). See also Jackson v. FedEx Corporate Services, Inc. 518 F.3d 388, 393-94 (6th Cir. 2008). The Sixth Circuit has also noted, in particular, that the "same supervisor" requirement "does not automatically apply in every employment discrimination case. Whether that criterion is relevant depends upon the facts and circumstances of each individual case."McMillan v. Castro, 405 F.3d 405, 414 (6th Cir. 2005).

With respect to Deputies Engram and Powell, the Sheriff points out that they were not nurses, and were therefore in entirely different positions and subject to different supervision. Neither has easy access to prescription drugs in the course of his or her work. These facts, the Sheriff argues, establish that Deputies Engram and Powell are not proper bases of comparison to Satterfield. Instead, he says, two other former employees of the Sheriff's Office — Janet Whitt and Cassie Hines — are relevant examples. They were both nurses and both committed thefts during the course of their employment. Nurse Whitt stole medication from the Office, for which she was fired on July 10, 2007. And in November of 2007, Nurse Hines was also found to have stolen medication from the Sheriff's Office. Termination proceedings were initiated against Hines, as they were against Satterfield, but Hines resigned before their completion.

Given this uncontroverted evidence, the Court believes that Deputies Engram and Powell are not similarly situated employees, but Nurses Whitt and Hines are. They were in the same position as Satterfield, with the same type of supervision. They also had the same access to medications, thereby making personal integrity vital for the same reasons. Satterfield, however, argues that there is other evidence that shows a causal connection between Satterfield's complaint of harassment and her termination. This evidence focuses primarily on the process used by the Sheriff when considering whether to fire someone, combined with the knowledge the Sheriff had at the time he decided to fire Satterfield. As for the process, the Sheriff admits that he is the sole decision-maker when it comes to firing someone. Karnes depo. at 26-27. He takes into account the summary of the Internal Affairs investigation and his own experience. Id. at 27. He does not have an absolute policy that employees convicted of a crime involving dishonesty must be terminated; rather, he bases his decision on the facts of each particular case. Karnes aff. at ¶ 3.

And as for his knowledge at the time of the decision, Major Mann has stated that he spoke to the Sheriff personally during the course of the investigation of his son. In this conversation, he "pleaded for [his son's] job with everything in [his] power." Mann, Sr. depo. at 13-14. He also told the Sheriff that he believed that "[i]t was a two-way street; that it had to be both parties involved." Id. at 14. In other words, that Satterfield must have done something to cause Mann to take the actions he did: "My part of it is that he had reason to believe that he could do that and it would be receptive — or she would be receptive." Id. at 15. Major Mann also stated that he didn't "recall the Sheriff ever telling [him] that [Satterfield] had been charged . . . until after . . . the investigation was over."Id. at 16. According to Major Mann, the Sheriff told him, most likely after the investigation of Satterfield was over, "that there were charges against her and that she would probably lose her job." Id. at 16. The Sheriff, for his part, does not recall speaking with Major Mann on this subject. Karnes depo. at 10, 29. Instead, in his affidavit, he states that he "did not consider the opinion of Major Alan Mann, Sr., his wife, or his daughter-in-law regarding the veracity of Ms. Satterfield's allegations regarding Alan Mann, jr.'s conduct. The fact that Alan Mann, Sr., has worked at the Sheriff's Office for 35 years played no role in my decision to terminate Ms. Satterfield." Karnes aff. at ¶ 7.

In addition, when Satterfield was finally terminated on April 4, 2007, the notice she received listed her alleged sick leave abuse as one of the reasons, along with the theft from Meijer and her failure to report her theft to the Sheriff's Office. As mentioned earlier, the charge of sick leave abuse should not have been included among the reasons for Satterfield's termination. After Satterfield complained about this termination, the Sheriff's Office realized that she did not abuse her sick leave, and it therefore should not have been included among the reasons for her termination. As a result, the Sheriff's Office revised the April 4 termination letter it had given Satterfield, removing all reference to the charge of sick leave abuse.

Based on this evidence, and, importantly, considering it in the light most favorable to the plaintiff, it appears that a prima facie case of retaliation could be made, mainly due to the Sheriff's contact with Major Mann and the erroneous termination notice, but also due to the general temporal proximity between Satterfield's complaint and her termination. The burden now shifts to the Sheriff to articulate a legitimate, non-discriminatory reason for Satterfield's termination. Morris, 201 F.3d at 792 (6th Cir. 2000). The Sheriff easily meets this obligation, stating that Satterfield's theft from Meijer and her failure to report that theft to the Sheriff's Office were the legitimate, non-discriminatory reason. Reply at 15. The burden thus swings back to Satterfield to establish that this stated nondiscriminatory reason was merely a pretext for discrimination.Morris, 201 F.3d at 792-93. To establish pretext, Satterfield may prove "(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [her] discharge, or (3) that they were insufficient to motivate discharge." Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (emphasis in original) (quotingMcNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir. 1993)), abrogated on other grounds by Geiger v. Tower Automotive, 579 F.3d 614, 621 (6th Cir. 2009)). Satterfield argues that evidence exists which would permit a jury to find pretext under the second method — that the proffered reasons were not the actual reasons that motivated her discharge. Opp. at 36.

A plaintiff making a showing under this method:

admits the factual basis underlying the employer's proffered explanation and further admits that such conduct could motivate dismissal. . . . [Instead,] the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it `more likely than not' that the employer's explanation is a pretext, or coverup.

Manzer, 29 F.3d at 1084 (emphasis in original; alteration added). Furthermore, "[i]t is not enough . . . to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 147 (2000) (emphasis in original) (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993)). Thus, the question for this Court on summary judgment is whether there is evidence on which a reasonable jury could base a finding that it's more likely than not that Satterfield's firing was not solely based on her theft from Meijer and her failure to report this theft, and that, instead, it was based on discrimination. The Court believes that the evidence in the record is totally insufficient to permit such a finding by the jury; no reasonable jury could find that the Sheriff's reason was merely a pretext.

Although the investigation into Satterfield's unlawful conduct occurred at the same time as the investigation into Mann's alleged harassment, that fact is only the result of Satterfield's actions. The Sheriff was obligated to investigate her theft once he knew of it, and he was obligated to make a decision once the investigation was concluded. Insofar as Satterfield also argues that similarly situated individuals within the Sheriff's Office were treated more favorably despite similar offenses, she has failed as a matter of law to provide evidence of truly similarly situated individuals that were, in fact, treated more favorably. Deputies Engram and Powell, mentioned above, were not similarly situated. Instead, the only evidence in the record of similarly situated individuals is of Nurses Whitt

and Hines, one of whom was fired for her theft, and the other of whom was about to be fired for her theft when she voluntarily resigned. Furthermore, the fact that Satterfield had filed a complaint of harassment does not "indict the credibility" of the Sheriff's explanation. Instead, "the sheer weight of the circumstantial evidence" is simply insufficient to permit a reasonable jury to find that the Sheriff's explanation is a pretext or coverup. Summary judgment on this claim is therefore appropriate in favor of the Sheriff on this claim in both his individual and official capacities.

2. Satterfield's Claims for Coworker Harassment

Satterfield has also claimed retaliation in the form of coworker harassment. The Sixth Circuit has recognized claims for coworker harassment, holding that such a claim is established when it is shown that

(1) the coworker's retaliatory conduct is sufficiently severe so as to dissuade a reasonable worker from making or supporting a charge of discrimination, (2) supervisors or members of management have actual or constructive knowledge of the coworker's retaliatory behavior, and (3) supervisors or members of management have condoned, tolerated, or encouraged the acts of retaliation, or have responded to the plaintiff's complaints so inadequately that the response manifests indifference or unreasonableness under the circumstances.

Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 347 (6th Cir. 2008). The Sheriff argues in his motion for summary judgment that Satterfield fails on all three elements. Motion at 22. The evidence of "dirty looks," a "hostile attitude," and a "hater's club" are not, he argues, sufficiently severe to dissuade a reasonable worker from making or supporting a charge of discrimination. There is also no evidence, he says, that the Sheriff's Office had actual or constructive knowledge of these actions or that anyone in a supervisory or management position condoned, tolerated or encouraged such conduct. Satterfield, in turn, puts up very little resistance against this. As for the first prong, she points out that "a plaintiff's burden of establishing a materially adverse employment action is less onerous in the retaliation context than in the anti-discrimination context." Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595-96 (6th Cir. 2007) (citing Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006));see also id. at 596 (describing this standard as "a relatively low bar"). As for the second prong, however, she simply states that "it is unimaginable that supervisors did not know about what she was suffering." Opp. at 38. And as for the third prong, she says nothing.

It is therefore clear that Satterfield has failed to bring forth evidence that would permit a reasonable jury to find that the second and third prongs of the test for coworker retaliation have been satisfied. Satterfield was required, under Rule 56, to bring forth evidence of supervisory notice and condonation, toleration, and encouragement. There is none in the record. Summary judgment is therefore appropriate on this claim as it is alleged against the Sheriff in both his individual and official capacities.

D. The Intentional Infliction of Emotional Distress Claim

Satterfield's last claim is for intentional infliction of emotional distress. In her complaint, she claims that the Sheriff "knew or should have known that the willful, extreme, and outrageous behavior of the individuals acting on its behalf would result in serious emotional distress for Plaintiff. The conduct went beyond all bounds of decency." Amended Complaint at ¶¶ 86-87. Furthermore, "the mental anguish was serious and of a nature no reasonable person could or should be expected to endure." Id. at ¶ 89. As mentioned earlier, the Sheriff is granted immunity against this claim as it is alleged against him in his individual capacity. Supra Part III.A.2. The following analysis therefore only addresses the claim against him in his official capacity.

In Ohio, the state in which all events pertinent to this claim took place, and whose laws the parties agree govern the claim, a claim for intentional infliction of emotional distress can be proven by showing:

(1) the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; (2) the actor's conduct was so extreme as to go beyond all possible bounds of decency and was such that it can be considered utterly intolerable in a civilized community; (3) the actor's actions were the proximate cause of plaintiff's psychic injury; and (4) the mental anguish suffered by plaintiff is serious and of a nature that no reasonable person could be expected to endure it.

Garcia v. ANR Freight System, Inc., 942 F.Supp. 351, 359 (N.D. Ohio 1996) (citing Tschantz v. Ferguson, 97 Ohio App.3d 693, 702 (Ohio Ct. App. 1994); Koenig v. City of Dayton, 28 Ohio App.3d 70, 74 (Ohio Ct. App. 1985); Pyle v. Pyle, 11 Ohio App.3d 31, 34 (Ohio Ct. App. 1983)). The emotional distress suffered need not be accompanied by any physical injury. Yeager v. Local Union 20, 6 Ohio St. 3d 369, 374 (Ohio 1983) abrogated on other grounds by Welling v. Weinfeld, 113 Ohio St. 3d 464, 468 (Ohio 2007). But one can only be liable if his or her conduct has been:

so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!'

Id. at 375.

The Sheriff responds to Satterfield's allegations by claiming that she "has not alleged that she is debilitated or suffers from a severe mental or emotional condition sufficient to constitute severe emotional distress." Motion at 23 (citing Paugh v. Hanks, 6 Ohio St. 3d 72, 78 (Ohio 1983)). Additionally, he argues that "the facts as pleaded do not support a finding of extreme or outrageous conduct by Defendant and would not lead an average member of the community to exclaim, `outrageous!'" Id. (citing Yeager, 6 Ohio St. 3d at 374 (Ohio 1983)). Satterfield, in turn, argues that "[s]exual assaults, obscene telephone calls, persistent sexual advances, an ominous workplace presence, ostracism, and retaliatory termination" are sufficiently severe. Opp. at 40. She correctly notes that intentional infliction of emotional distress is not designed to address "`mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'" Id. (quoting Yeager, 6 Ohio St. 3d at 374-75). And she claims that the actions here stand in sharp contrast to such trivialities because they involved physical contact.Id. (citing and quoting Brewer v. Petroleum Suppliers, Inc., 946 F.Supp. 926, 936 (N.D. Ala. 1996)). Ultimately, however, she claims that the retaliatory termination is "especially outrageous." Id. at 41. "[T]he trauma to Ms. Satterfield was caused not only by the discharge but also by the betrayal of her as a dedicated employee who was harassed by the son of the Sheriff's favorite colleague." Id.

In his reply, the Sheriff argues again that Satterfield has failed to establish that (1) his conduct was so extreme as to go "beyond all possible bounds of decency," and (2) she suffered from severe emotional distress, and that (3) as a matter of law, her allegedly retaliatory termination is not extreme or outrageous enough to inflict emotional distress on its own. Reply at 22-23. The Court agrees with the first point: there is not sufficient evidence in the record to permit a reasonable jury to find that Sheriff's conduct was "so extreme as to go beyond all possible bounds of decency and was such that it can be considered utterly intolerable in a civilized community." The only actions of the Sheriff to be considered in this claim are those he took in response to Deputy Mann's harassment. The record shows that the Sheriff responded to the October 3 assault by immediately opening an investigation into the incident. And before that, his top officials, upon receiving word of the complaint, reacted immediately; they passed the allegations up the chain of command, and one of his top officials, Chief Deputy Barrett, ordered Mann not to have any contact with Satterfield. Furthermore, after the alleged December "don't look at me" incident, the Sheriff assigned Mann to the control center, from which point he would have no contact with Satterfield. These actions are totally insufficient to permit a jury to find that they are "so extreme as to go beyond all possible bounds of decency and . . . such that [they] can be considered utterly intolerable in a civilized community." Summary judgment on this claim is therefore appropriate because Satterfield has not brought forth evidence to support the second prong of the test for intentional infliction of emotional distress.

Satterfield has also failed to carry her burden with respect to the fourth prong of the test for intentional infliction of emotional distress — that the mental anguish she suffered is serious and of a nature that no reasonable person could be expected to endure it. She has pointed to no evidence in the record that would meet this high standard. Whatever mental stress may have resulted from the Sheriff's response to Mann's harassment, no reasonable jury could find that it was so severe that "a reasonable person, normally constituted, would be unable to cope adequately with the mental distress generated by the circumstances of the case." Reply at 22 (quoting Godfredson v. Hess Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999)). Summary judgment is therefore appropriate for this reason, as well.

IV. Conclusion

For these reasons, the Sheriff's Motion for Summary Judgment is GRANTED on all counts.

IT IS SO ORDERED.