Toni Horn v. City of Cleveland

674 F. App'x 511
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 5, 2017
Docket16-3175
StatusUnpublished
Cited by5 cases

This text of 674 F. App'x 511 (Toni Horn v. City of Cleveland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toni Horn v. City of Cleveland, 674 F. App'x 511 (6th Cir. 2017).

Opinions

PER CURIAM

Toni Horn appeals the district court’s grant of summary judgment to the City of Cleveland, her employer, on her failure-to-promote, sex-discrimination, and retaliation claims. We AFFIRM.

I.

Horn began employment with the Waste Collection and Disposal division of the City of Cleveland’s Department of Public Works in March 1989, as a waste collector. At pertinent times, the Waste Collection division was headed by Commissioner Ronnie Owens and General Superintendent Anthony Ludwig. Working under Owens and Ludwig were nineteen managers consisting of five assistant superintendents, five foremen-I, and nine foremen, located at various collection and disposal stations. Horn worked at the Carr Center Station.

In July 1996, Horn was promoted to Foreman. Around December 2010, Horn was appointed Acting Foreman I at the Ridge Road station, where she trained foremen and oversaw waste collectors and drivers. Horn also occasionally filled in for Assistant Superintendent Wayne Thornton at the Ridge Station.

While an Acting Foreman I, Horn was suspended for one day for neglect of duty based on an incident on December 5, 2011, when her crew left trash uncollected and she had them collect the trash after hours without alerting her supervisor.

On April 17, 2012, Horn resigned from the Acting Foreman I position in a letter to Commissioner Owens stating that she wanted to “go back and continue my position as a waste collection foreman.” PID 596, 641.

Around June 2012, Horn unsuccessfully bid for three Foreman I positions and one Assistant Superintendent position. Four men were promoted to those positions. In November 2012, the Union filed a grievance on Horn’s behalf asserting that the City violated the CBA by denying Horn’s bids for promotion. This grievance eventually proceeded to binding arbitration in December 2014, as discussed below. In the [513]*513interim, in late November 2012, Horn filed gender discrimination charges with the Equal Employment Opportunity Commission (EEOC) and Ohio Civil Rights Commission (OCRC).

II.

Horn instituted this sex discrimination and retaliation action in September 2013, alleging that the City- unjustifiably disciplined her and deprived her of promotions based on her sex, and retaliated against her by suspending her for filing grievances and EEOC and OCRC charges of sex discrimination. In addition, Horn alleges that the City failed and refused to process her grievance in retaliation for her EEOC and OCRC charges.

Counsel advised the district court at a status conference that Horn’s grievance was presented at an arbitration hearing and a final decision was expected in March 2015. On the district court’s order that the parties brief why Horn’s complaint should not be dismissed “in light of the binding Arbitration proceeding on the identical issues,” PID 143/Order 1/26/15, the parties stipulated as follows:

1. With respect to the arbitration of a union grievance between Plaintiff and the City of Cleveland, in which Plaintiff participated on December 16, 2014, no decision has been forthcoming from that arbitration as of this date.
2. Plaintiff and Defendant agree that the issues adjudicated, or which will be adjudicated, in that arbitration proceeding, do not bar under the doctrines of res judicata or collateral es-toppel or otherwise, Plaintiffs claims in this case.

PID 147/Stipulation 2/9/15.

Arbitration of Hprn’s Contractual Claim

The issue before the arbitrator was whether the City violated Article 25 of the Collective Bargaining Agreement (CBA), titled “Promotions and Transfers,” by not promoting Horn. Article 25 provides in pertinent part:

70. [ ] The City shall award the vacancy to the most qualified applicant within the bargaining unit. Only when the qualifications of two (2) or more applicants are equal will the position be awarded on the basis of seniority. All determinations regarding qualifications remain within the sole discretion of the City.
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72. The Employer shall consider the following factors to determine the qualifications of the applicants:
A. Seniority;
B. Past performance/work-related experience/demonstrated abilities/previous temporary transfer;
C. Work-related experience with another employer (where such information is provided by the employee);
D. Aptitude;
E. Education/training;
F. Prior discipline imposed during the two year period immediately preceding the date of the bid notice;
G. Lack of interest/failure to follow through;
H. Opinion of supervisors, judgment of applicant’s knowledge, skills and ability;
I. Past attendance record ...
J. Any special requirements reasonably related to the bid position.

PID 489-91/CBA.

The Arbitrator issued his ruling in March 2015, sustaining Horn’s grievance in part on the basis that the evidence clearly and convincingly showed that Horn was as or more qualified for the Foreman I position than the other applicants.

[514]*514The arbitrator noted in particular that Nathaniel Mason, one of the men promoted to Foreman I, had received a two-day suspension for neglect of duty, insufficiency in work, and wasteful use of public supplies or equipment relative to a June 30, 2011, incident in which Mason was “observed moving furniture on City time, which is a violation of the City of Cleveland’s Policies and Procedures.” PID 624. The Employee Incident Report completed by Mason’s superior, Assistant Superintendent Thornton, states that Mason “was observed carrying bedding into a resident [sic] house ... who has five small children and they had nothing to sleep on.” PID 625.

Regarding the Assistant Superintendent position for which Horn had bid, the Arbitrator concluded that there was insufficient evidence to show that the City’s decision to select Michael Nunn over Horn was arbitrary, an abuse of discretion, or otherwise clearly erroneous.

City’s Motion for Summary Judgment

On the City’s motion for summary judgment following discovery, the district court determined that Horn established a prima facie case of sex discrimination, that the City articulated legitimate, non-discriminatory reasons for not promoting her, and that Horn did not meet her burden of showing “that the City’s proffered reasons were insufficient to warrant the challenged conduct; thus, she failed to establish pretext.” PID 785.

As to Horn’s retaliation claim, the district court determined that she failed to establish the fourth prima facie element— that there was a causal connection between her EEOC/OCRC filings and either her disciplinary suspensions or the alleged delayed processing of her grievances.

III.

This court reviews de novo the district court’s grant of summary judgment. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008).

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674 F. App'x 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toni-horn-v-city-of-cleveland-ca6-2017.