NOT RECOMMENDED FOR PUBLICATION File Name: 24a0339n.06
No. 23-5713
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Aug 01, 2024 KELLY L. STEPHENS, Clerk ) JESSICA CHILDERS, ) Plaintiff - Appellant, ON APPEAL FROM THE ) UNITED STATES DISTRICT ) v. COURT FOR THE WESTERN ) DISTRICT OF KENTUCKY ) CASEY COUNTY SCHOOL DISTRICT BOARD ) OF EDUCATION, et al., ) OPINION Defendants - Appellees. ) )
Before: GIBBONS, BUSH, and LARSEN, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Jessica Childers required a private space and dedicated
time to pump breastmilk after she returned from maternity leave. Administrators at her school
challenged some of her desired accommodations. After Childers received a poor evaluation and
faltered in some of her assigned tasks, the Casey County School District declined to renew her
employment contract. She sued those administrators and the District, alleging that they
discriminated against her, retaliated against her, created a hostile work environment, and
intentionally inflicted emotional distress on her. The district court, however, granted summary
judgment for defendants on all issues. We affirm.
I
Childers, a special education teacher, took ten weeks of maternity leave after giving birth
to her son. As she prepared to return to the classroom, she worked with her supervisor, Principal
Daran Wall, to identify a space where she could pump breastmilk for her baby. They settled on No. 23-5713, Childers v. Casey Cnty. Sch. Dist. Bd. of Educ., et al.
her classroom, which had “a chair, a table, a plug in, and a door that locked . . . from the inside,
and [where she could] put a cover over the window” on the door. Childers Dep., R. 18-2, PageID
109.
Childers returned from maternity leave in October 2020. On October 7, Barry Lee, the
school’s special education director, met with all special education teachers to discuss schedules.
Childers proposed a schedule that included two thirty-minute periods of personal time, a sixty-
minute planning period, and a twenty-minute lunch period. According to Childers’s testimony,
Lee questioned the purpose of personal times Childers listed in her schedule; when she explained
that she set these periods to pump breastmilk, Lee “got very loud, and he got very angry, and he
smacked the paper on the table, and he told me, this wasn’t going to work” because “[t]here’s no
way he’s going to pay [her not] to see kids and—he’s not going to pay [her] to do nothing.” Id. at
PageID 115. After the meeting, Lee and Wall met privately with Childers, and Lee explained that
“he was concerned because of the large amount of time (2.5 hours per day) on [Childers’s] daily
schedule that she was not with students” and that Childers needed “to maximize instruction time
with students.” Wall Resps. To Pl.’s Interrog. Reqs., R. 18-3, PageID 163. Lee also inquired as
to whether any adjustments could be made to ensure [Childers] was supporting her students.” Id.
On October 8, Childers, Lee, and another school employee met to discuss how long
Childers needed to pump: Childers testified that Lee directed her to shorten her pumping sessions
to twenty minutes, which he concluded was an appropriate amount of time based on his
conversations with others, and cut her planning period by thirty minutes to compensate for time
not seeing students. But Wall never asked her to reduce the number of pumping sessions. And
Childers never actually reduced her pump sessions, in either the personal times or her planning
period.
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Over the course of the school year, someone entered Childers’s classroom while she
pumped three times. And the cover on her classroom door was once removed on January 7, 2021.
The next day, Wall sent an email asking staff to remove door covers as part of a district-wide safety
audit. Childers did not remove her window cover. Wall later asked her in person to remove the
cover as part of that audit, but Childers continued to keep hers up.
A new child joined the special education department while Childers took maternity leave.
Once she returned to school, Childers was responsible for verifying that the new student’s
paperwork complied with standards to secure federal funding for the child’s education. Although
she identified that the child’s paperwork was not completed while she was on leave, Childers failed
to timely submit a verification form for the child, resulting in a loss of federal funding.
Wall advised teachers on what to include in a binder as part of his evaluation of their
performance, but teachers chose what specific documents would be considered. During his
evaluation of Childers, Wall rated her as “Developing,” rather than “Accomplished.” Childers
explained why she disagreed with this evaluation and appealed it to a committee that reviewed
teacher evaluations, but this committee ultimately upheld her evaluation. Childers was a contract,
not tenured, teacher, and ultimately the District declined to renew her contract in 2021.
Childers sued the District, Lee, and Wall, asserting discrimination, retaliation, hostile work
environment, outrageous conduct, and gross negligence claims against them. The parties cross-
moved for summary judgment—defendants on all issues and Childers on liability. The district
court granted defendants’ motion for summary judgment and denied Childers’s partial motion for
summary judgment. Childers timely appealed.
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II
We review a grant of summary judgment de novo. Morgan v. Trierweiler, 67 F.4th 362,
366 (6th Cir. 2023). Summary judgment is appropriate if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In this analysis, the court “must view all the evidence and draw all
reasonable inferences in the light most favorable to the non-moving party.” Rhinehart v. Scutt,
894 F.3d 721, 735 (6th Cir. 2018) (citing Anderson, 477 U.S. at 251–52, 255).
III
A. Title IX and Kentucky Civil Rights (KCRA) Claims
Childers appeals the district court’s grant of summary judgment for defendants on her
claims brought under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
and the KCRA, Ky. Rev. Stat. Ann. § 344.040 et seq. Title IX and KCRA make similar
mistreatment unlawful. Title IX states that, subject to exceptions inapplicable here, “[n]o person
in the United States shall, on the basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). The KCRA makes it unlawful to “fail or refuse
to hire, or to discharge any individual, or otherwise to discriminate against an individual with
respect to compensation, terms, conditions, or privileges of employment, because of the
individual’s . . . sex.” Ky. Rev. Stat. § 344.040(1)(a). The parties do not dispute that
discrimination based on pregnancy-related conditions violates the substantive provisions of both
statutes.
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In appropriate cases, we have evaluated Title IX claims by borrowing the analytic
framework used in analogous Title VII cases. See Goldblum v. Univ. of Cincinnati, 62 F.4th 244,
251 (6th Cir. 2023) (applying the Title VII retaliation framework to a Title IX retaliation claim).
But see Bose v. Bea, 947 F.3d 983, 989 (6th Cir. 2020) (declining to apply Title VII’s “cat’s paw”
theory to a Title IX claim). We accept the parties’ invitation to apply Title VII’s basic framework,
as appropriate, here. We emphasize, however, that “Title VII differs from Title IX in important
respects.” Meriwether v. Hartop, 992 F.3d 492, 510 n.4 (6th Cir. 2021). “Thus, it does not follow
that principles announced in the Title VII context automatically apply in the Title IX context.” Id.
Childers argues that the district court erroneously granted summary judgment on her claims
that Wall, Lee, and the District discriminated against her, retaliated against her, and created a
hostile work environment contrary to Title IX and the KCRA.1 We discuss each category of claims
in turn.
1. Discrimination and Retaliation Claims
Childers argues that direct evidence supports her discrimination claims, but not her
retaliation claims. Childers may prevail on her sex discrimination claims by showing direct
evidence of discriminatory intent. White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 238 (6th
Cir. 2005). “Direct evidence is evidence that ‘requires no inferences or circumstantial evidence to
1 Childers asserted Title IX and KCRA claims against Wall and Lee individually, as well as the District. Title IX limits liability to the funding recipient (here, the District), not individuals, so the district court properly dismissed the Title IX claims against Wall and Lee. Bose v. Bea, 947 F.3d 983, 988 (6th Cir. 2020). But while Kentucky courts interpret the KCRA’s civil rights provisions “in both the discrimination and retaliation contexts, consistent with the analogous federal anti-discrimination statutes,” Charalambakis v. Asbury Univ., 488 S.W.3d 568, 575 (Ky. 2016), the KCRA “plainly permits the imposition of liability on individuals” for retaliation claims under Ky. Rev. Stat. § 344.3800. Morris v. Oldham Cnty. Fiscal Ct., 201 F.3d 784, 794 (6th Cir. 2000); accord Stevens v. Saint Elizabeth Med. Ctr., Inc., 533 F. App’x 624, 630 (6th Cir. 2013). Because Childers brought her KCRA retaliation claims under Ky. Rev. Stat. § 344.3800, the district court properly assessed these state law retaliation claims against Wall and Lee on the merits rather than dismissing them based on individual liability.
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create an inference of discrimination.’” Hunter v. Gen. Motors LLC, 807 F. App’x 540, 543 (6th
Cir. 2020) (quoting Peeples v. City of Detroit, 891 F.3d 622, 633 (6th Cir. 2018)). Childers
contends that she has shown direct evidence of discrimination by Wall and Lee by testifying that
(1) her window covering was removed from her classroom, (2) Lee and Wall constantly demanded
that she shorten her pumping periods, and (3) Lee reacted emotionally in public when he
challenged the purpose of her proposed schedule’s personal periods. But, as the district court
correctly noted, these “actions require the Court to draw inferences as to whether they reflect a
bias against women with pregnancy-related conditions, however, and whether this purported bias
prompted her termination.” Childers v. Casey Cnty. Sch. Dist. Bd. of Educ., No. 1:21-CV-00138-
GNS-HBB, 2023 WL 4629555, at *3 (W.D. Ky. July 19, 2023). So Childers fails to establish her
discrimination claims based on direct evidence.2
Without direct evidence, Childers’s Title IX and KCRA claims may nonetheless proceed
by showing circumstantial evidence of discrimination or retaliation under the framework
established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). White, 429 F.3d at 238
(discrimination); Goldblum, 62 F.4th at 251 (retaliation). Under that framework, Childers “bears
the burden of establishing a prima facie claim of discrimination.” White, 429 F.3d at 238; accord
Goldblum, 62 F.4th at 251. Once she establishes that prima facie case, “the burden shifts to the
defendant to proffer a legitimate, non-discriminatory reason for the employment decision at issue,”
2 Unlike Title VII, which holds an “employer” accountable for the actions of its agents, there is no respondeat superior liability under Title IX. Bose, 947 F.3d at 989–90. Instead, Title IX imposes liability “only for a funding recipient’s ‘own official decision[s]’ and not ‘for its employees’ independent actions.’” Id. at 990 (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290–91 (1998)). So, it is unclear whether Wall’s and Lee’s statements would constitute “direct” evidence of the District’s intent in any event. But we need not resolve that question here.
6 No. 23-5713, Childers v. Casey Cnty. Sch. Dist. Bd. of Educ., et al.
which Childers may then rebut with evidence that “the defendant’s stated reason is mere pretext
for its true discriminatory motives.” White, 429 F.3d at 238; accord Goldblum, 62 F.4th at 251.
Defendants contend that the District possessed a legitimate, non-discriminatory, and non-
retaliatory reason for declining to renew Childers’s contract: her poor performance in a non-
tenured position, shown by her less-than-stellar evaluation and her failure to properly document
the new student in the special education department, which led to lost federal funding to the
District.3 “Poor performance is a legitimate, nondiscriminatory reason for terminating a person’s
employment,” so logically, poor performance is also a legitimate, nondiscriminatory reason to
decline to renew a non-tenured employee’s contract. Imwalle v. Reliance Med. Prods., Inc., 515
F.3d 531, 546 (6th Cir. 2008).
Thus, the real issue here is whether that reason was pretext for defendants’ discriminatory
and retaliatory intent, as Childers argues at the third McDonnell Douglas stage. A plaintiff shows
such intent by offering a “cognizable explanation of how the evidence she has put forth establishes
pretext.” Goldblum, 62 F.4th at 252 (quoting Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d
883, 888 (6th Cir. 2020)) (applying this standard to retaliation claims). “Plaintiffs typically show
pretext,” however, “by establishing one of three things: ‘(1) that the proffered reasons had no basis
in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that
[the proffered reasons] were insufficient to motivate the employer’s action.’” Id. (quoting Chen
v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)).
3 We move past the prima facie case stage; because defendants offered a legitimate, non-discriminatory, and non-retaliatory reason for declining to renew Childers’s contract, we may assume, without deciding, that she made a prima facie case and proceed to the “ultimate issue” of whether that reason was pretextual. Cline v. Cath. Diocese of Toledo, 206 F.3d 651, 661 (6th Cir. 2000).
7 No. 23-5713, Childers v. Casey Cnty. Sch. Dist. Bd. of Educ., et al.
Childers offers several reasons why her non-renewal was pretextual, though none is
persuasive. First, she blames others for failing to document the new special education student
while she was on maternity leave, and says that she caught the mistake. Yet she acknowledges
that documenting students for this purpose was ultimately her responsibility, that she participated
in meetings before the paperwork deadline in which this issue was discussed, but that she still
submitted the forms late. Even if she caught the mistake, she did not correct it. Having failed her
known duties, Childers has not shown that defendants acted pretextually when the District did not
renew her contract.
Second, she contends that defendants’ reason disguised their unlawful motivations,
explaining that Lee reacted emotionally when he questioned the purpose of her taking personal
time and criticized her proposed schedule. Yet Childers has not offered evidence that Lee even
played a role in the decision not to renew her contract. In any event, Lee’s alleged outburst
preceded the District’s non-renewal decision by six months, and his comments came in the context
of evaluating Childers’s schedule for the upcoming year. Considered in light of the strength of the
District’s performance-based reasons for not renewing Childers’s contract, no reasonable juror
could conclude that the District’s decision was pretextual based on Lee’s alleged outburst.
Finally, she argues that, in her final evaluation, Wall improperly rated her poorly, in part
by holding her to a different standard than other teachers, to legitimize her non-renewal. Although
she complained, for example, that Wall did not specifically tell her that he wanted examples of
student work in her evaluation binder, Childers also testified that the Principal gave guidelines of
what teachers should include and that teachers themselves selected what went in that binder. And
when Childers appealed her negative rating to a committee charged with reviewing teacher
evaluations, that committee affirmed Wall’s assessment. At bottom, Childers has not presented
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evidence that discriminatory or retaliatory animus motivated Wall’s rating or its affirmance by the
appeals committee, or that the District’s reliance on the evaluation was otherwise pretextual. And
so her Title IX and KCRA discrimination and retaliation claims must fail.
2. Hostile Work Environment Claims
To prevail on her hostile work environment claims based on sex, Childers must establish
that “(1) she was a member of a protected class; (2) she was subjected to unwelcomed harassment;
(3) the harassment was based on sex; (4) the harassment created a hostile work environment; and
(5) employer liability.” Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 411 (6th Cir. 2021) (internal
quotation marks, alterations, and citations omitted) (Title VII sex-based hostile work environment
claim); see Doe v. Miami Univ., 882 F.3d 579, 590 (6th Cir. 2018) (“A Title IX hostile-
environment claim is analogous to a Title VII hostile-environment claim.”).4 “Harassment creates
a hostile work environment when 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.” Wyatt, 999 F.3d at 411 (cleaned up).
Whether conduct rises to that level is assessed considering “all the circumstances,” and courts may
consider “the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
4 Like the district court, Childers and defendants apply this Title VII framework to Childers’s hostile work environment claims, both under Title IX and the KCRA. But unlike Title VII, an employer can be sued under Title IX only for its own actions, not for those of its employees. Bose, 947 F.3d at 989–90. As applied to the hostile work environment claim, that means that the District can be liable only “if it received actual notice of [the] harassment and responded to it with ‘deliberate indifference.’” Klemencic v. Ohio State Univ., 263 F.3d 504, 511 (6th Cir. 2001) (quoting Gebser, 524 U.S. at 292). Here, the parties have not engaged the question whether the District itself received “actual notice” of these events and responded with “deliberate indifference” to them. Id. at 510. And we resolve the case on other grounds.
9 No. 23-5713, Childers v. Casey Cnty. Sch. Dist. Bd. of Educ., et al.
Here and below, the parties primarily dispute the fourth element of the above test: whether
defendants’ harassment created a hostile work environment for Childers. Childers points to several
ways in which she believes defendants harassed her to that level: Lee instructed her to reduce her
pumping sessions to twenty minutes, Lee questioned the purpose of her personal periods in her
draft schedule, someone once removed the covering on her door, some people entered her
classroom while she pumped, and Lee stated that her schedule “wasn’t going to work” because
“[t]here’s no way he’s going to pay [her not] to see kids and—he’s not going to pay [her] to do
nothing.” Childers Dep., R. 18-2, PageID 115.
Viewing the evidence in the light most favorable to Childers, the defendants’ alleged conduct
objectively cannot amount to a “hostile work environment.” Childers recounted three intrusions in
her classroom while she pumped during the six-month period at issue: janitors entered the room
twice and Wall did so once. While we are sympathetic to Childers’s privacy concerns, these
episodes are insufficient to raise an actionable hostile work environment claim. Childers
acknowledged that she did not think that the janitors entered her classroom purposefully, which
diminishes the severity of the intrusions. Cf. Ladd v. Grand Trunk W. R.R., 552 F.3d 495, 501 (6th
Cir. 2009) (noting the diminished severity, for purposes of a hostile work environment claim, of
workplace slurs that the plaintiff overheard but that were not directed at her). The infrequency of
the privacy violations, including the alleged removal of her window cover, demonstrates that
Childers’s allegations are the types of “isolated incidents” that are legally insufficient to state a
hostile work environment claim. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
And Lee’s challenges to and frustrations with her draft schedule were not frequent, severe,
physically threatening, or humiliating; at most, they constituted “mere offensive utterance[s].”
10 No. 23-5713, Childers v. Casey Cnty. Sch. Dist. Bd. of Educ., et al.
Harris, 510 U.S. at 23. So Childers’s Title IX and KCRA hostile work environment claims fail.
See Morris v. Oldham County Fiscal Court, 201 F.3d 784, 787, 790 (6th Cir. 2000).
B. Other Claims
Childers also appeals the district court’s grant of summary judgment to defendants on her
outrageous conduct claim. To prevail on this tort, also known as intentional infliction of emotional
distress, a plaintiff must establish that the “defendant’s conduct was intentional or reckless, that
the conduct was so outrageous and intolerable so as to offend generally accepted standards of
morality and decency, that a causal connection exists between the conduct complained of and the
distress suffered, and that the resulting emotional stress was severe.” Brewer v. Hillard, 15 S.W.3d
1, 6 (Ky. Ct. App. 1999). “An action for outrage will not lie for petty insults, unkind words and
minor indignities; the action only lies for conduct which is truly outrageous and intolerable.” Id.
(cleaned up). Childers raises the same facts for this claim as she raised for her hostile work
environment claims. As before, though, these facts do not rise to the level of outrageous and
intolerable conduct necessary to assert this claim, which also fails. See Humana of Kentucky, Inc.
v. Seitz, 796 S.W.2d 1, 4 (Ky. 1990).
Finally, Childers also appeals the district court’s grant of summary judgment to defendants
on her gross negligence claim, asserted so that she may pursue punitive damages. But punitive
damages are not authorized for her Title IX or KCRA claims. Barnes v. Gorman, 536 U.S. 181,
185–89 (2002) (rejecting the availability of punitive damages in private suits brought under
legislation passed pursuant to the U.S. Constitution’s Spending Clause, like Title IX); Kentucky
Dep’t of Corr. v. McCullough, 123 S.W.3d 130, 140 (Ky. 2003) (recognizing that the statute setting
civil remedies for violating the KCRA does not authorize punitive damages). And while punitive
damages are generally available for an outrageous conduct claim, Kroger Co. v. Willgruber, 920
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S.W.2d 61, 67 (Ky. 1996), Childers may not recover such damages because that claim fails on the
merits, as discussed above. Ammon v. Welty, 113 S.W.3d 185, 188 (Ky. Ct. App. 2002).
IV
For these reasons, we affirm the district court’s grant of summary judgment for defendants
and against Childers on all issues.