Laura Hoffman v. Michael O'Malley

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 9, 2021
• Docket: 20-3473
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 21a0123n.06

Case No. 20-3473

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LAURA HOFFMAN; LINDA HERMAN, ) FILED ) Mar 09, 2021 Plaintiffs-Appellants, ) DEBORAH S. HUNT, Clerk ) v. ) ) MICHAEL C. O’MALLEY, in his official and ) ON APPEAL FROM THE UNITED personal capacities; JENNIFER DRISCOLL, ) STATES DISTRICT COURT FOR in her official and personal capacities; ) THE NORTHERN DISTRICT OF GREGORY MUSSMAN, in his official and ) OHIO personal capacities; JOANNA WHINERY, in ) her official and personal capacities; LISA R. ) WILLIAMSON, in her official and personal ) capacities; CUYAHOGA COUNTY, OHIO, ) Defendants-Appellees. )

BEFORE: COOK, GRIFFIN, and LARSEN, Circuit Judges.

COOK, Circuit Judge. Former Cuyahoga County assistant prosecutors Laura Hoffman and

Linda Herman appeal the district court’s grant of summary judgment in favor of Cuyahoga County

Prosecutor Michael O’Malley, certain employees of his office, and the county itself. They claim

that these defendants defamed them and singled them out for termination based on Hoffman’s

disability and Herman’s age. We AFFIRM. Case No. 20-3473, Hoffman v. O’Malley

I.

Upon taking office as the new Cuyahoga County Prosecutor in January 2017, O’Malley

learned of uncharged juvenile sexual assault cases that had fallen through the cracks. The

Prosecutor then initiated an investigation of the Juvenile Justice Unit for such uncharged cases.

To that end, the juvenile unit’s new intake supervisor emailed the assistant prosecutors,

including Hoffman and Herman, asking for a list of all current juvenile sexual assault cases

assigned to them. Within four days, Hoffman responded that she had two; Herman failed to

respond.

Later, the juvenile unit’s chief held an all-staff meeting where he directed all attorneys to

immediately look for any more of these uncharged cases. With this second look, Hoffman found

two additional uncharged cases. And Herman unearthed four—each of these, it turned out, sat

unattended for more than a year. It came to light that Herman tried to cover her lapse by preparing

unsanctioned “no prosecution” letters for the two oldest cases.

The following month, supervisory attorneys, including First Assistant Lisa Williamson,

met with several assistant prosecutors, including Hoffman and Herman, to review just what went

on with their assigned cases that had languished.

After the meetings, Williamson and the team scheduled pre-disciplinary conferences for

Hoffman, Herman, their former supervisor Robin Belcher, and others. Here again, each had an

opportunity to further explain their work on the neglected cases.

As regards Belcher, the interviewers focused on her laxity in ensuring diligent performance

by those attorneys she supervised.

Hoffman defended herself by claiming to be proud of the job she did on her sexual assault

cases. She explained that she marked two of her delayed cases inactive within one month of

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receiving them. And marking cases inactive, she maintained, was at the direction of Belcher, her

superior.

Herman, on the other hand, admitted that for over a year she just forgot about the four

overlooked cases. She went on to offer the view that these are not real cases, but instead “cold

cases” that did not require her to work them. She considered reviewing these cases to be an

“academic exercise.” Her supervisor Belcher, however, testified that Herman’s four cases

deserved prosecutorial attention.

Other assistant prosecutors showed that for a majority of their cases their performance was

not negligent. Williamson initially identified Lakesha Johnson as responsible for eighteen delayed

cases. Yet at the conference to go over the problem files, Johnson showed that she could be faulted

for delay in only a third of the eighteen.

Evaluating the results of the investigation, Williamson testified about the contrasting

attitudes among the neglectful assistants. Some, like Johnson, were upset, remorseful and wanted

to make it right. Hoffman and Herman, on the other hand, were “indignant.”

Williamson’s investigation report prompted O’Malley to follow Williamson’s

recommendation to severely sanction Belcher, Hoffman, and Herman. O’Malley offered them the

option to either resign or be terminated. They resigned. He disciplined Johnson and other

prosecutors without seeking their resignation.

When the media got wind of this disciplinary situation in the Prosecutor’s Office,

O’Malley invited a reporter to discuss it. As a result of that meeting, the reporter published this:

O’Malley last week asked three assistant prosecutors who handled the bulk of the delayed cases to resign. Laura Hoffman, Linda Herman and Robin Belcher resigned Wednesday, Thursday and Friday, respectively, after each had a disciplinary hearing in O’Malley’s office.

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Later, the reporter emailed the Prosecutor’s Office for more details on the story, asking for

clarification on the number of delayed cases Hoffman and Herman handled. O’Malley declined

to provide specific numbers.

Hoffman and Herman eventually filed suit, alleging defamation and employment

discrimination. After defendants moved for summary judgment, Hoffman and Herman requested

more time to file expert reports. The court denied the request and granted summary judgment in

defendants’ favor on all claims. Hoffman and Herman appeal.

II.

We review a district court’s grant of summary judgment de novo. Cass v. City of Dayton,

770 F.3d 368, 373 (6th Cir. 2014). A court appropriately grants summary judgment if, viewing

the facts and reasonable inferences in the light most favorable to the nonmoving party, no genuine

issues of material fact remain for trial and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); Cass, 770 F.3d at 373.

III.

Hoffman and Herman challenge the district court’s entry of summary judgment on their

defamation claims, Hoffman’s ADA claim, and Herman’s ADEA claim. We find that each lacks

merit.

A.

As for Hoffman and Herman’s first challenge to the dismissal of their defamation claims,

they say they presented sufficient evidence to show that the County acted with actual malice. To

succeed, they need to show that the County’s press statements were knowingly false or recklessly

unconcerned with their falsity. McKimm v. Ohio Elections Comm’n, 729 N.E.2d 364, 372 (Ohio

2000). Actual malice “requires a clear and convincing showing . . . of the defendant’s actual state

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of mind—either subjective awareness of probable falsity or actual intent to publish falsely.” Id. at

373 (citation omitted). Courts “may not infer the existence of actual malice from evidence of

personal spite or ill will alone; rather, [the] focus is on the publisher’s attitude toward the truth or

falsity of the publication.” Id.

Hoffman and Herman argue that the district court “erroneous[ly] disregard[ed] . . .

substantial evidence” of the County’s malicious conduct toward them, including evidence showing

it: (1) knew its classification of neglected cases “was based entirely on misrepresentations of

reasonable differences between administrations regarding how to classify cases and allocate

limited prosecutorial resources”; (2) knew they “were not responsible for setting the office-wide

policies they reasonably followed in marking certain cases ‘inactive’”; (3) knew it did not have

any evidence showing that they “did anything but reasonably follow the orders of their supervisors

regarding the seven ‘mishandled’ cases they worked on”; (4) did not ask Belcher about their

performance on any of the seven cases before firing them; and (5) failed to “correct the record”

after the reporter asked for clarification on the number of cases they handled.

These arguments lack record support. Hoffman and Herman cite primarily argument, not

record evidence. See Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006) (“Arguments in

parties’ briefs are not evidence.”). And the remaining points fail to target just what the County

knew about how Hoffman and Herman handled their cases.

What is more, they fail to support their position with legal argument. After listing their

“evidence,” Hoffman and Herman simply assert “[i]n light of this evidence . . . the district court’s

holding . . . should be reversed.” But “[a] party may not raise an issue on appeal by mentioning it

in the most skeletal way, leaving the court to put flesh on its bones.” Bickerstaff v. Lucarelli, 830

F.3d 388, 396 (6th Cir. 2016) (quoting United States v. Hendrickson, 822 F.3d 812, 829 (6th Cir.

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2016)). They cite only two cases parenthetically that do not support their argument. Neither record

in those cases supported a finding of actual malice. See St. Amant v. Thompson, 390 U.S. 727, 732

(1968); A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651

N.E.2d 1283, 1293 (Ohio 1995). And Hoffman and Herman never alert the court as to how these

cases support their position. See Nat’l Credit Union Admin. Bd. v. Zovko, 728 F. App’x 567, 569

(6th Cir. 2018) (“[T]he court is not obligated to search the record to make [the parties’] argument

for them.”).

Instead, as the County notes, the record contradicts the claim that it acted with actual

malice; it shows that the County sought to learn how each attorney handled their cases by meeting

with them twice to provide them an opportunity to explain what happened. Hoffman and Herman

offer no evidence to the contrary.

This failure to offer evidence of actual malice also dooms their false light claims; those too

require evidence of actual malice in the County’s statement to the press. See Welling v. Weinfeld,

866 N.E.2d 1051, 1059 (Ohio 2007). We find no error in the court’s dismissal of these claims.

B.

Hoffman next contends that the court improperly dismissed her ADA discrimination claim.

Under the familiar McDonnell Douglas burden-shifting framework, Hoffman needs first to

establish her prima facie case of discrimination by “showing that similarly situated non-protected

employees were treated more favorably.” Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 660

(6th Cir. 1999) (citation omitted). The district court held that she failed to present evidence that

any of the employees she alleged the County treated more favorably than her were non-disabled.

Hoffman contends, however, that she “was not required to present evidence that similarly

situated employees were not disabled” given that the County “never presented any evidence . . .

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that any of the similarly situated non-terminated prosecutors were actually disabled.” The County

responds, noting that Hoffman attempts to defend her lapse by improperly shifting her burden to

it. The plaintiff, of course, retains the initial burden to establish the essential elements of a prima

facie case. See Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 776 (6th Cir. 2016).

We agree with the district court and the County; Hoffman failed to present to the district

court evidence on the disability status of any of the employees she alleged were treated more

favorably than her. The County challenged Hoffman’s prima facie case in its summary judgment

brief, and it never conceded that her comparators were non-disabled. Hoffman needed to present

evidence that other employees (comparators) were: (1) outside her protected class; (2) similarly

situated to her; and (3) treated more favorably than her. See Hopkins, 196 F.3d at 660. She failed

to do so, declining to support in the district court her assertion that the comparators were non-

disabled. The court is not obliged to accept unsupported assertions as to other employees’

disability status. See Kyle-Eiland v. Neff, 408 F. App’x 933, 943 (6th Cir. 2011); see also Fed. R.

Civ. P. 56(e). And her effort to support those assertions for the first time on appeal comes too late.

This shortcoming in her presentation of a prima facie case supports the entry of summary judgment

for the County on her disability cause of action.

C.

Herman challenges the court’s dismissal of her ADEA discrimination claim. But unlike

its treatment of Hoffman’s claim, the court went further along the McDonnell Douglas framework.

In her case, the failure came in showing pretext. As the court recognized, Herman could establish

pretext by showing “(1) that the proffered reasons had no basis in fact, (2) that the proffered

reasons did not actually motivate [the] discipline, or (3) that they were insufficient to motivate

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discharge.” Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 349 (6th Cir. 2012) (emphasis

omitted) (citation omitted). The court determined that she could not succeed under any theory.

Herman sees three errors in the district court’s pretext analysis: (1) it applied a “pretext

plus” standard; (2) it “disregarded substantial evidence” from which a jury could find pretext; and

(3) it applied the “honest belief” rule. None warrants reversal.

First, Herman argues that the district court required her to prove that “discriminatory

animus toward her because of her age” provided the “real reason” for her resignation. Yet, the

district court properly analyzed pretext on the grounds she put forward, concluding that “Herman’s

evidence constitutes personal belief and conjecture, which are insufficient to establish pretext.” In

the context of the court’s opinion, Herman’s stance on the court applying “pretext plus” finds no

support.

Second, she maintains that she presented ample evidence of pretext and that the district

court “improperly restricted” her pretext evidence to the “single method” of showing the County’s

reasons for her discharge “simply did not happen.” We instead read the opinion as showing that

the court analyzed and rejected her theory that the County’s proffered reasons were insufficient to

motivate her termination. It found those reasons—her poor job performance—adequately

motivating.

Herman would have the court assess particularly the County’s treatment of Johnson as

compared to her. To succeed on this theory of pretext, Herman needed to present “evidence that

other employees, particularly employees outside the protected class, were not disciplined even

though they engaged in substantially identical conduct to that which the employer contends

motivated its discipline of the plaintiff.” Id. This standard excludes “differentiating or mitigating

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circumstances that would distinguish their conduct or the employer’s treatment of them for it.”

Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006) (citation omitted).

Here, as the County highlights, the “differentiating or mitigating circumstances” for

Herman and Johnson include: the length of time each neglected her cases, who possessed the cases

for that time, how each conducted herself at the pre-disciplinary conferences, Herman’s violation

of office policy by attempting to issue “no prosecution” letters for her cases, and Herman’s

reference to her cases as “cold cases” and an “academic exercise.” Herman fails to address these

differences, presenting only her subjective belief that she and Johnson engaged in identical

misconduct. But “personal beliefs, conjecture and speculation” do not “constitute evidence of

pretext.” Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 724 (6th Cir. 2006) (citation

omitted).

Third, Herman suggests error in the court’s use of the “honest belief” rule. She misreads

the court’s opinion. It correctly applied the rule only to her allegation that she did not mishandle

any cases at all—the “no basis in fact” pretext theory.

To the extent she challenges the court’s proper application of the honest belief rule, that

argument fails too. Herman contends that she presented evidence that the County’s investigation

was “unworthy of credence” because (1) it could not provide a “rational explanation” for “how

Johnson’s ‘work’ on these files distinguished her from Herman”; (2) it “failed to determine”

whether any of these files were “‘worked up’ or entered in the office’s electronic-tracking system”;

and (3) O’Malley “ignored an express recommendation that he not fire her.” But an investigation

is not “unworthy of credence” simply because it was not “optimal” or failed to “le[ave] no stone

unturned.” Seeger v. Cincinnati Bell Tel. Co. , 681 F.3d 274, 285–86 (6th Cir. 2012) (quoting

Smith v. Chrysler Corp., 155 F.3d 799, 807–08 (6th Cir. 1998)). “Rather, the key inquiry is

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whether the employer made a reasonably informed and considered decision before taking an

adverse employment action.” Id. at 285 (quoting Smith, 155 F.3d at 807).

The record confirms that the County did that with its multi-step investigation, pre-

disciplinary hearing, and consideration before imposing discipline. It first asked everyone to turn

in uncharged files. Then it reviewed them and identified the neglected ones. It twice brought in

everyone who handled those files and gave them an opportunity to explain their conduct. O’Malley

used the findings from these meetings to decide on the appropriate discipline for everyone. This

record reflects that the County made a reasonably informed and considered decision before asking

Herman to resign. Herman identifies no errors “too obvious to be unintentional.” Id. at 286

(quoting Smith, 155 F.3d at 807). Without evidence to support her claims of pretext, her case ends

at summary judgment.

D.

Hoffman and Herman last contend that the court abused its discretion when it denied their

motion for extension of time to file expert reports. The grant of summary judgment moots this

claim. See Pettrey v. Enter. Title Agency, Inc., 584 F.3d 701, 703 (6th Cir. 2009).

IV.

We AFFIRM.

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