Katrina Brown v. Ohio State University , 385 F. App'x 486 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0418n.06
No. 09-3421
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
KATRINA BROWN ) Jul 12, 2010
) LEONARD GREEN, Clerk
Plaintiff–Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Southern
THE OHIO STATE UNIVERSITY; ) District of Ohio
KAREN HOLBROOK, President, )
The Ohio State University in her official capacity, )
)
Defendants–Appellees. )
Before: BOGGS and GILMAN, Circuit Judges; McCALLA, Chief District Judge*
PER CURIAM. Katrina Brown (“Brown”) appeals from a judgment of the district court
granting summary judgment to the defendants and dismissing with prejudice her claims under 42
U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. §§ 1981 and 1983, and Ohio Revised Code § 4112.99.
Brown alleges that, while employed at the Ohio State University Medical Center East (“OSUMC
East”), a hospital run by The Ohio State University (“OSU”), she was first demoted, and then
terminated, because of her race (African–American). We adopt the reasoning of the district court’s
opinion and affirm.
*
The Honorable Jon P. McCalla, United States Chief District Judge for the Western District of
Tennessee, sitting by designation.
I
Katrina Brown worked in various nursing and managerial positions at The Ohio State
University Medical Center from March 1992 until she transferred to The Ohio State University
Medical Center East in March 2000. Upon her transfer, Brown initially worked as a staff nurse in
OSUMC East’s operating room.
In July 2001, Brown was promoted to Associate Director of Perioperative Services. She
continued in that role until January 2004, and was responsible for overseeing the daily operations of
the operating room, pre-operative and recovery areas, anesthesia, central sterile supply, and
endoscopy. Brown also supervised and educated staff, recommended discipline, ordered supplies,
and compared costs to a prepared budget.
Brown was considered successful in her new role, leading to a second promotion. In January
2004, she was made Director of Perioperative Services by Jerry Mansfield, a Caucasian who was
OSUMC East’s Administrative Director of Nursing Services. Brown began reporting directly to
Mansfield, and her new job description indicated that she was “responsible for managing the
operations, evaluating manager/employee performance, demonstrating customer satisfaction (internal
/ external) . . . and strategic and operational planning and program development.”
Unfortunately, Brown was considerably less successful in the Director position. In August
2004, she received a generally positive performance review from Mansfield, but was told that “areas
of concern” included surgeon satisfaction, waiting time, materials management, and orthopedic
implant pricing. For her part, Brown testified at her deposition that she believed Mansfield’s
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concerns reflected his ignorance of either the Perioperative Services unit’s functions or Brown’s role
within that unit.
Evaluating Brown again in August 2005, Mansfield expressed similar reservations about
Brown’s performance. Mansfield observed that there were indications of dissatisfaction and a lack
of teamwork among those working under Brown, and emphasized that she still needed to address
some of the issues they discussed in 2004. Specifically, he pointed to Brown’s tendency not to
“investigate all facts and work to communicate them in a concise manner,” which led to “confusing
and reactive” interactions with hospital administrators, her subordinates, and surgeons utilizing the
hospital’s facilities. Mansfield further indicated that he believed that Brown needed improvement
in “defensiveness, communication regarding staffing effectiveness, timely decision-making, and
priority setting.”
Despite their collaboration on an “action plan” that was designed to address the issues
identified in Brown’s August 2005 evaluation, Mansfield continued to have doubts about Brown’s
ability to perform in the Director position. On December 1, 2005, he reviewed the action plan in a
memo to Brown’s personnel file and concluded that some of Brown’s goals had not been met,
including goals pertaining to the percentage of cases starting late, the number of case cancellations,
and the quality of operating room care. At about the same time, Mansfield’s notes reflect that (1)
Brown unnecessarily delayed ordering a new product that a doctor wanted to use because she
mistakenly believed that the request had to be approved by the hospital’s product evaluation
committee; (2) a different request from two other doctors for a new product was not responded to in
a timely manner; and (3) a blade was left in a patient after surgery due to a count error, and Brown
did not notify the risk management office of the incident immediately.
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Mansfield met with Brown on December 15, 2005, and told her that she was being demoted
to Nurse Manager—effectively the same job that she had performed prior to her promotion to
Director.
Thereafter, the Director of Perioperative Services position was vacant until the first week of
June 2006. In that period, Mansfield’s notes documented one instance in February 2006, in which
a procedure scheduled by a physician who was using OSUMC East for the first time had to be
cancelled because a member of Brown’s staff had failed to request necessary equipment. According
to the notes, Brown initially blamed one staffer, but Mansfield’s investigation disclosed that the
person blamed by Brown had never been given the request, and the blame belonged with a different
staffer. Mansfield’s notes from that period also indicate that Brown was involved in a conflict with
other university employees over the use of a storage facility, causing one witness to describe her as
“loud, argumentative, and upset.”
Brown’s permanent replacement as Director of Perioperative Services, Denise Minor, started
at OSUMC East during the week of June 5, 2006. After Minor’s initial meetings, interactions, and
emails with the employees she directly supervised, including Brown, she told Mansfield that she had
concerns with Brown’s management style and that Brown “seemed to lack ownership of issues in the
operating room.” Minor was particularly concerned that, unlike the other nurse managers, Brown
could not articulate a plan for her department. Minor and Mansfield agreed that Minor should
continue her assessment of Brown’s performance against the expectations of the Nurse Manager role.
Minor testified in her deposition that, over the next few weeks, she observed Brown’s
interaction with her staff and attempted to engage Brown in discussions of strategy as it pertained to
the operating room, but was unimpressed by Brown’s demeanor or her ability to manage. In
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particular, Minor noted that Brown’s communication style with her subordinates was confrontational,
and that Brown was passive and detached when asked her opinion on changes in the perioperative
department; when Minor sought to discuss the issues raised in Brown’s August 2005 evaluation,
Brown appeared to believe that they were irrelevant. When Minor attempted to discuss other issues
or problems affecting the operating room, Brown did not take notes or write down the matters that
Minor asked her to follow through on, sat with her arms folded, did not make eye contact, and spoke
little. Mansfield and Minor decided they would meet with Brown to advise her that they “would be
at the point of terminat[ing]” her, but nevertheless offer her an additional chance to help develop and
meet “clear expectations.”
On June 21, 2006, Minor and Mansfield met with Brown to discuss their concerns with
Brown’s performance as Nurse Manager. During the meeting, Brown expressed a feeling that she
had never received support from Mansfield and, according to her deposition testimony, told him that
she couldn’t “seem to establish a relationship” with him and asked “is it because I’m
African–American or what?” Mansfield ended the meeting to contact the hospital’s human resources
department, and later in the day told Minor to create another action plan for Brown. At 4:00 p.m. on
June 21, Brown, Minor and Mansfield met; Minor discussed the goals for the action plan, including
“demonstrat[ing] supporting working relationship with senior leadership,” “strategic planning and
evaluation [of goals],” and demonstrating sound decision making and positive communication.
Brown neither took notes nor asked questions. Despite the meeting earlier in the day, and being
tasked with creating strategies to achieve the action plan’s goals, she later testified that she believed
that the action plan was not related to deficiencies in her own performance, but rather to inform
Minor of what Brown’s job entailed.
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Drafts of the new action plan were exchanged. Again, however, Brown appears to have not
agreed with the goals of the plan, and complied with Minor’s request that she create tactics to achieve
them only because she was told to do so, testifying that “I didn’t agree with any of [the action plan],
but I didn’t say anything. Whatever she wanted me to put on paper . . . was okay with me.” On July
12-13, meanwhile, Minor was informed of various personnel problems in the operating room,
including scheduling issues and missing surgical instruments, which “followed the same trend that
was noted in the assessment completed by Jerry Mansfield on 8/2/05.”
On July 26, 2006, Mansfield’s notes reflect that Brown was involved in a meeting to discuss
space allocation in the operating room. As a result of that meeting, Mansfield identified several
problems that he believed reflected on the “communication” and “decision making” areas of concern
identified in Brown’s most recent action plan, including inappropriate handling of surgical
instruments and exceeding the departmental budget for replacement surgical instruments.
Mansfield’s notes indicate that he believed that these problems demonstrated Brown’s continued lack
of communication, unawareness of the issues, and/or lack of control of her staff. Mansfield appears
to have started the formal termination process on that same day.
Brown’s last day as Nurse Manager was July 31, 2006. On that day, she met with Minor,
Mansfield, and Kent Hess, the interim CEO of OSUMC East, and was presented with a letter that
specified the grounds for her termination:
. . . deterioration of day-to-day decision-making and lack of personal ownership
continues to result in untimely completion of assignments, customer complaints, and
general lack of control of the operating room/central sterile department and personnel.
Based on these facts and the impact of your continued non-performance/behavior
upon our operation, we have concluded that this termination is the appropriate
employment action.
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Brown asked whether she could take another demotion to staff nurse; when she was told that her only
other option was to resign (which would allow her to remain eligible for re-hire), she signed a letter
of resignation.
After properly exhausting her administrative remedies, Brown’s complaint was filed on May
24, 2007. It contained two counts: (1) that her demotion and termination were based on her race,
in violation of 42 U.S.C. § 2000e et seq. and Ohio Revised Code § 4112.99, and (2) that the same
race-based demotion and termination were in violation of 42 U.S.C. § 1981. OSU moved for
summary judgment on September 30, 2008; its motion was granted and judgment in its favor entered
on March 23, 2009. Brown v. Ohio State Univ., 616 F. Supp. 2d 740 (S.D. Ohio 2009). This timely
appeal followed.
II
This court reviews a district court’s grant of summary judgment de novo. Int’l Union v.
Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006). As such, we will uphold such a grant “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits,
if any, show that there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Having throughly reviewed the record, we adopt the reasoning and analysis of the district
court below with respect to Katrina Brown’s claims of discrimination under Title VII and 42 U.S.C.
§§ 1981 and 1983.1 Although Brown has met her burden of establishing a prima facie case under the
1
Liability under 42 U.S.C. § 1983 is coterminous with liability under Title VII when a plaintiff
alleges disparate treatment by a state employer. Grano v. Dep’t of Dev. of Columbus, 637 F.2d 1073,
1082 (6th Cir. 1980). Section 1983 further comprises the exclusive remedy for violation of the rights
guaranteed in 42 U.S.C. § 1981. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731–32 (1989).
Therefore, Brown’s other federal claims are disposed of en suite with her Title VII claim. Brown’s
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standard enunciated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), she has
offered no evidence to suggest that the legitimate non-discriminatory reasons proffered by the
appellee for its adverse employment decisions with respect to her are, in fact, pretexts for race
discrimination.
Brown protests that some objective measurements of her performance indicate that she was
succeeding, but such an argument does nothing to address the reasons actually advanced for her
demotion and termination, which were grounded in her attitude, communication style, decision-
making and leadership skills, and in her lack of responsiveness to her supervisors’ concerns about
these shortcomings. While Brown also argues that she was treated differently in this regard than her
Caucasian coworkers, we agree with the district court that, in contrast to Brown’s performance as
Director, her predecessor and successor in that position were perceived by hospital administration
as “both recogniz[ing] what their job duties as director entailed and proactively work[ing] to improve
areas of the department.” Similarly, the district court observed, and we agree, that Brown had failed
to show that the Caucasian Nurse Managers she worked with responded to problems identified by
their supervisors in the same manner that she did.
Therefore, for the reasons identified in the district court’s opinion, we AFFIRM the judgment
of the district court.
state law claims, which have never been argued separately by her, are waived on appeal to the extent
they may present issues different from those presented by her federal claims. See Dillery v. City of
Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (“It is well-established that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.”) (internal citations and quotation marks omitted).
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