IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Randall Smith,

Plaintiff,

v. Case No. 2:13-cv-56

The Ohio Department of

Jobs and Family Services,

Defendant.

OPINION AND ORDER

This is an employment discrimination action filed by plaintiff

Randall Smith against his employer, the Ohio Department of Jobs and

Family Services (“the Department”), an agency of the State of Ohio. 

In Count 1 of the complaint, plaintiff asserts a claim under Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e,

et seq., alleging disparate treatment based on his male sex. 

Plaintiff contends that despite the fact that he was assigned

additional duties previously performed by female employees, he was

not promoted to a higher pay range and did not receive wage

supplements, while other female employees in his office did receive

promotions or wage supplements. In Count 2 of the complaint,

plaintiff asserts a claim under the Equal Pay Act, 29 U.S.C. §206,

alleging that the Department paid him less than female employees

for equal work.

This matter is before the court on the Department’s motion for

summary judgment.

I. Summary Judgment Standards

“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). The central issue is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A

party asserting that a fact cannot be or is genuinely disputed must

support the assertion by citing to particular parts of materials in

the record, by showing that the materials cited do not establish

the absence or presence of a genuine dispute, or by demonstrating

that an adverse party cannot produce admissible evidence to support

the fact. Fed. R. Civ. P. 56(c)(1)(A) and (B). In considering a

motion for summary judgment, this court must draw all reasonable

inferences and view all evidence in favor of the nonmoving party. 

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986); Am. Express Travel Related Servs. Co. v. Kentucky,

641 F.3d 685, 688 (6th Cir. 2011).

The moving party has the burden of proving the absence of a

genuine dispute and its entitlement to summary judgment as a matter

of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

The moving party’s burden of showing the lack of a genuine dispute

can be discharged by showing that the nonmoving party has failed to

establish an essential element of his case, for which he bears the

ultimate burden of proof at trial. Id. Once the moving party

meets its initial burden, the nonmovant must set forth specific

facts showing that there is a genuine dispute for trial. Id. at

322 n. 3. “A dispute is ‘genuine’ only if based on evidence upon

which a reasonable jury could return a verdict in favor of the nonmoving party.” Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 298

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(6th Cir. 2008). A fact is “material” only when it might affect

the outcome of the suit under the governing law. Id; Anderson, 477

U.S. at 248.

The nonmovant must “do more than simply show that there is

some metaphysical doubt as to the material facts[.]” Matsuchita,

475 U.S. at 586. A mere scintilla of evidence is not enough. 

Anderson, 477 U.S. at 252; Ciminillo v. Streicher, 434 F.3d 461,

464 (6th Cir. 2006). Further, the nonmoving party has an

affirmative duty to direct the court's attention to those specific

portions of the record upon which it seeks to rely to create a

genuine issue of material fact. See Fed. R. Civ. P.

56(c)(3)(noting that the court “need consider only the cited

materials”).

II. Factual Background

The Department has almost 3,000 employees, and is responsible

for supervising Ohio’s public assistance, workforce development,

unemployment compensation, child and adult protective services,

adoption, child care, and child support programs. Plaintiff began

his employment with the Department in 1995, and held the positions

of Personnel Officer 2, Management Analyst Supervisor 1, and

Management Analyst Supervisor 2. After a five-year leave of

absence on disability retirement, plaintiff returned to the

Department in 2009, and was assigned to the position of management

Analyst Supervisor 2, Asset Manager, in the Information Management

(“IM”) Section of the Employee and Business Services Department. 

Plaintiff’s duties included overseeing the Department’s asset

management program and properly accounting for all state-owned

property.

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In August of 2010, plaintiff discovered that significant

assets, including computer servers, laptop computers and network

components were unaccounted for and he filed a complaint with the

Office of the Inspector General, which later located the assets

during its investigation. Plaintiff’s supervisor, Section Chief

James Lowe, concluded that plaintiff referred the matter to the

Inspector General’s Office because he did not want to look for the

lost assets himself. Lowe also determined that plaintiff had

“poisoned” the IM Section’s working relationship with the Office of

Information Services by alienating employees of that office. Lowe

Dep., pp. 28, 103-104. Lowe issued a corrective counseling

memorandum to plaintiff and re-assigned plaintiff’s asset

management duties to another male employee. Although Lowe sought

to have plaintiff reassigned to another section because plaintiff

no longer had sufficient pay grade 14 work to perform following the

loss of his asset management duties, Lowe was told that plaintiff

would not be re-assigned, and that Lowe had to find other work for

plaintiff within the IM Section. Plaintiff remained a Management

Analyst Supervisor 2, pay grade 14. Lowe moved plaintiff into a

performance management role and attempted to create an Operations

Manager position for plaintiff in the IM Section by assigning him

additional tasks to supplement the available pay grade 14 work. 

However, Lowe had a difficult time finding sufficient tasks,

particularly grade 14 duties, for plaintiff to perform.

In 2011, plaintiff informed Lowe that he was looking for

promotional opportunities outside the IM Section because he felt

that the duties assigned to him were inconsistent with his job

classification and pay grade. Lowe advised plaintiff to identify

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positions that were of interest to him, and stated that he would

try to help plaintiff to obtain a lateral transfer. Plaintiff

located a vacant Management Analyst 2 position, pay grade 14, in

the Veteran Services section of the Workplace Development Office

which had not yet been posted. At Lowe’s request, plaintiff

provided a qualification summary which Lowe forwarded. Plaintiff

later asked Lowe again about the vacant position, and Lowe informed

him that he had not heard anything back. Approximately three or

four months later, the position was posted, but plaintiff did not

apply for the position, and it was awarded to a male. Plaintiff

also expressed interest in transferring to the Office of

Information Services. However, Chief Operations Officer Sonnetta

Sturkey did not approve the transfer because she had a policy

against transferring employees unless there was a specific

departmental need. Lowe also considered creating a project manager

position which would be funded by the Employee and Business

Services Department and other departments, but this position was

never approved.

In March of 2011, Classification and Compensation Manager

Nancy Jancso-Kocarek requested that all IM Section employees

complete a Position Description Questionnaire ("PDQ”) to ensure

that all employees were properly classified. Plaintiff completed

the questionnaire, which was then forwarded to Lowe to fill in the

supervisor portion of the questionnaire. Lowe indicated on the

form that plaintiff’s job duties as IM Operations Manager included:

monitoring section operations; assembling performance management

tools; collecting and analyzing performance data; building

inspection; identifying security and safety issues; turning in

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excess property; and performing other duties as assigned. Lowe

noted that plaintiff was in a new position and that some of his job

duties had been recently developed. Plaintiff was then permitted

to provide rebuttal comments. Although Lowe did not inform

plaintiff that the evaluation process would result in plaintiff

being promoted to pay grade 15, Lowe led plaintiff to believe that

this was a possibility. Lowe, as the section chief, was the only

pay grade 15 employee in the IM Section. There were no pay grade

15 vacancies in the section at that time. 

During the PDQ process, Lowe assigned additional duties to

plaintiff. These including: filling in for Holly Howard

(Administrative Officer 2, pay grade 14) while she was on

disability leave for four months in 2011; performing warehouse

management duties plaintiff believed should have been assigned to

Beth Curry (Visual Communications Manager, pay grade 13); a special

project involving the consolidation of Howard’s operations from

three facilities into one facility, which plaintiff believed fell

within the scope of job responsibilities belonging to Teri Ziegler

(Business Operations Manager 1, pay grade 12); filling in for Beth

Curry while she was on disability leave; and serving as Lowe’s

administrative assistant.

On December 6, 2011, Lowe was advised of the results of the

PDQ study, which included the finding that plaintiff was properly

classified as a Management Analyst Supervisor 2, pay grade 14. The

results of the study were officially released on December 23, 2011. 

The study concluded that plaintiff should not be upgraded to a pay

grade 15 because all of the duties he performed were at a pay grade

14 level. No other employees in the IM Section were upgraded from

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a pay grade 14 to a pay grade 15 as a result of the PDQ study. 

Plaintiff told Employee and Business Services Department Deputy

Director Carolyn Borden-Collins that he was disappointed with the

results of the PDQ study in light of his assumption of additional

responsibilities. Borden-Collins stated that she would speak with

Chief Operations Officer Sonnetta Sturkey about plaintiff’s

concerns, but plaintiff did not follow up on his inquiries with

Borden-Collins.

Following the PDQ study, Lowe continued to search for

additional duties for plaintiff to perform in an effort to further

develop plaintiff’s position. Lowe decided to consolidate duties

previously shared by Howard, Curry, Ziegler, Kathy Forrest

(Management Analyst Supervisor 1, pay grade 12) and Yvonne

Robertson (pay grade 30, union bargaining unit member), and to

assign those duties to plaintiff. These duties involved purchase

orders and contracts, and included the responsibility for

developing contracts and bid documents. Plaintiff was designated

as the opening manager who handled calls from employees calling off

for the day. Plaintiff was assigned to assist other managers with

problematic employees. Plaintiff was also assigned the task of

being the facility liaison for the Department’s Integrity Drive

location. This job involved occasionally reporting maintenance

issues, such as heating, air conditioning, or electrical problems,

by phone call or email to Teri Ziegler, Business Operations Manager

of the Facilities Operations Department of the Employee and

Business Services Department. These extra duties were consistent

with or below the duties of plaintiff’s pay grade 14.

Employees of the Department can qualify for a temporary work

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level (“TWL”) if they assume the duties of a vacant position that

is in a higher pay grade. Lowe Dep., p. 76. Plaintiff admitted

that he did not qualify for a TWL. Smith Dep., p. 84. Employees

can also qualify for a temporary work adjustment (“TWA”). Lowe

testified that a TWA could be allowed for temporarily performing

the work duties of a higher pay grade position which was not

vacant. Lowe Dep., pp. 76-77. Plaintiff thought that a TWA would

be available if an employee performs some of the duties of a person

in a position with the same or higher pay grade. Smith Dep., p.

83. However, he acknowledged that he did not request a TWA. Smith

Dep., p. 85.

After Holly Howard (pay grade 14) was killed in an automobile

accident on March 17, 2012, Kathy Forrest (Management Analyst

Supervisor 1, pay grade 12) was issued a TWL to perform Howard’s

duties. Because Forrest had difficulty completing the duties of

both positions, Lowe assigned some of Forrest’s duties to plaintiff

in an effort to evenly distribute the work. In November, 2012,

Lowe retired, and Nicholas Linn, his successor, promoted Forrest

into Howard’s position on a permanent basis.

The record also indicates that in February of 2012, Lisa

Endicott was promoted from the position of Management Analyst 1,

pay grade 12, to Management Analyst 2, pay grade 14. At the time

of her promotion, Endicott worked in a different section of the

Employee and Business Services Department than plaintiff, and had

a different supervisor. From September 12, 2011, through February

23, 2013, Cynthia Tuttle (Management Analyst Supervisor 1, pay

grade 12) received a TWL for assuming the duties of a vacant

Management Analyst Supervisor 2, pay grade 14, position, and later

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received a TWA for performing the duties of another grade 14

position. During that time, Tuttle worked in a different section

than plaintiff, and had a different supervisor.

From 2012 to 2013, the Ohio Department of Administrative

Services conducted a study concerning the overuse of the Management

Analyst Supervisor 1 and 2 positions, and eliminated those

classifications. Classification and Compensation Manager Nancy

Jancso-Kocarek conducted an audit on plaintiff’s position in order

to determine the proper classification for that position. JancsoKosarek determined that plaintiff’s position should be classified

as a Management Analyst, pay grade 30, a position within the

jurisdiction of union bargaining unit 14, effective October 20,

2013. Plaintiff’s pay was not reduced when his position was

reclassified.

On August 10, 2012, plaintiff filed a complaint with the Equal

Employment Opportunity Commission (“EEOC”). Doc. 16-1, Smith Dep., 

Ex. 1. Plaintiff complained that he was not promoted as promised

to a higher pay grade as a result of the PDQ study. Plaintiff

alleged that he performed additional duties previously assigned to

female employees, but was not given a pay increase. Plaintiff

contended that Lisa Endicott and Cynthia Tuttle, female coworkers

who performed the same or similar duties that plaintiff performed,

were promoted due to a change in their duties or their performance

of additional duties, but he was not. Plaintiff also claimed that

in April, 2012, Kathy Forrest was given a pay supplement to fill in

for deceased employee Holly Howard, and that plaintiff was assigned

some of Forrest’s job duties but was not given a pay supplement. 

On December 18, 2012, the EEOC closed plaintiff’s file because it

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was “unable to conclude that the information obtained establishes

a violation of the statutes.” Smith Dep., Ex. 2. Plaintiff filed

the instant action on January 21, 2013.

III. Plaintiff’s Claims

A. Standards - Claim of Reverse Discrimination

Title VII makes it unlawful for an employer “(1) to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national

origin[.]” 42 U.S.C. §2000e-2. A case of disparate treatment

discrimination may be shown by direct or by circumstantial evidence. 

Direct evidence “is that evidence which, if believed, requires the

conclusion that unlawful discrimination was at least a motivating

factor in the employer’s actions.” Amini v. Oberlin College, 440

F.3d 350, 359 (6th Cir. 2006). Direct evidence must prove not only

discriminatory animus, but also that the employer actually acted on

that animus. Id. Where one must draw an inference to determine

the actor’s motivation, the evidence is not direct. Romans v.

Michigan Dep’t of Human Services, 668 F.3d 826, 836 (6th Cir. 2012).

Plaintiff has not identified any direct evidence of

discrimination relating to his promotion opportunities or

compensation. Plaintiff did testify that his supervisor, James

Lowe, told him at some undisclosed time that “he expected more out

of me because I was an ex-military guy than he did to the whole

bunch of women, and he motioned to the north end of the building

where all the female employees we spoke of are housed[.]” Smith

Dep., p. 102. However, even plaintiff testified that he could not

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“interpret” what Lowe meant by this comment. Smith Dep., p. 102. 

The comment on its face is not critical of plaintiff. Isolated and

ambiguous comments such as this one are insufficient to support a

finding of direct discrimination. White v. Columbus Metropolitan

Housing Auth., 429 F.3d 232, 239 (6th Cir. 2005). 

If there is no direct evidence of discrimination, plaintiff

must proceed under the framework set forth in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973). In a case such as this one

involving allegations of reverse discrimination (discrimination

against a non-minority), plaintiff must present a prima facie case

showing: (1) that the defendant “is that unusual employer who

discriminates against the majority;” (2) that he was qualified for

the position in question; (3) that he suffered an adverse employment

action, such as failure to promote; and (4) that he was treated

differently than other similarly situated women. See Arendale v.

City of Memphis, 519 F.3d 587, 603-04 (6th Cir. 2008); see also

Becker v. Almwood Local School Dist., 519 F.App’x 339, 342 (6th Cir.

2013). Plaintiff must show that he is similarly situated in “all

relevant respects” to the female employees he alleges were treated

more favorably. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d

344, 353 (6th Cir. 1998)(emphasis in original). If plaintiff makes

out a prima facie case, the burden shifts to the defendant to show

a legitimate, non-discriminatory reason behind its actions. Id. at

603. Once defendant has met its burden, plaintiff must prove that

the stated explanation was a pretext for discrimination. Id.

Plaintiff can demonstrate pretext by showing that the proffered

reason (1) has no basis in fact, (2) did not actually motivate the

defendant’s challenged conduct, or (3) was insufficient to warrant

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the challenged conduct. Dews v. A.B. Dick Co., 231 F.3d 1016, 1021

(6th Cir. 2000).

To establish the first prong of a prima facie case of reverse

discrimination, plaintiff must typically “‘demonstrate background

circumstances to support the suspicion that the defendant is that

unusual employer who discriminates against the majority.’” Martinez

v. Cracker Barrel Old Country Store, Inc., 703 F.3d 911, 915 (6th

Cir. 2013)(quoting Zambetti v. Cuyahoga Cmty. College, 314 F.3d 249,

255 (6th Cir. 2002)). A reverse discrimination claim carries a

different and more difficult prima facie burden, which requires

plaintiff to show that background circumstances support the

suspicion that the defendant is that unusual employer who

discriminates against the majority, and that the employer treated

differently employees who were similarly situated but not members

of the protected group. Briggs v. Potter, 463 F.3d 507, 517 (6th

cir. 2006). “This requirement is not onerous, and can be met

through a variety of means, such as statistical evidence; employment

policies demonstrating a history of unlawful [gender]

considerations; evidence that the person responsible for the

employment decision was a minority; or general evidence on ongoing

[gender] tension in the workplace. Johnson v. Middle Metropolitan

Government of Nashville and Davidson Cty., Tenn., 502 F.App’x 523,

536 (6th Cir. 2012); see also Treadwell v. American Airlines, Inc.,

447 F.App’x 676, 679 (6th Cir. 2011)(background circumstances can

include evidence that Caucasians as a class received lower pay less

vacation time, less overtime or fewer promotions). However,

plaintiff may not rely on his own situation to provide the

“background circumstances;” rather, some indication of impermissible

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discrimination in addition to plaintiff’s own allegedly poor

treatment is necessary to support an inference of impropriety. 

Treadwell, 447 F.App’x at 679 (citing Murray v. Thistledown Racing

Club, Inc., 770 F.2d 63, 67 (6th Cir. 1985)).

B. Evidence of Reverse Discrimination

Defendant argues that plaintiff has failed to present evidence

sufficient to “support the suspicion that the defendant is that

unusual employer who discriminates against the majority[.] Boger

v. Wayne Cty., 950 F.2d 316, 324-25 (6th Cir. 1991). Plaintiff has

produced statistical evidence that the ratio of women to men

employed by the Department is 2:1. However, this is not a failure

to hire case. Rather, plaintiff complains that he did not receive

a pay upgrade for performing additional duties or the same salary

supplements received by certain other women employees. Defendant

notes that the same EEOC summary relied upon by plaintiff to show

the 2:1 ratio also shows that men employed by the Department receive

an average salary of $27.53 per hour, whereas the average salary for

women employees is $26.33 per hour. This evidence does not suffice

as evidence of reverse discrimination. Plaintiff has not met the

first element of his prima facie case of reverse discrimination, and

no genuine dispute exists as to this element.

C. Discrimination in Promotion

Plaintiff alleged in his complaint that he was discriminated

against on the basis of his sex in the matter of promotions. 

However, he states in his memorandum contra that this is “not a

promotion case per se.” Doc. 29, p. 6. In demonstrating a prima

facie case based on discrimination in promotion, plaintiff must show

that he applied for and was qualified for a promotion, that he was

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considered for and was denied the promotion, and that a female

employee received the job at the time plaintiff’s request for a

promotion was denied. White, 429 F.3d at 240. Plaintiff

acknowledges that he did not apply for a promotion during the time

period relevant to this case. In particular, he did not apply for

the posted position in the Veteran’s Service area of the Workforce

Development Office, which, in any event, was filled by a male

employee. Smith Dep., pp. 73, 75.

The gist of plaintiff’s complaint is that although he performed

additional assigned duties competently, his position was not

reclassified as a pay grade 15 position. Plaintiff acknowledges

that he was not denied a specific promotion, but contends that he

took on additional duties because he was told by Lowe that his

“stock was rising” and that Lowe was hopeful that plaintiff’s

assumption of these duties would justify the upgrade of plaintiff’s

position to a pay grade 15 position. Plaintiff argues that he was

not given credit for taking on duties removed from incompetent

female employees, while female employees who did not perform

competently were promoted.

There is evidence that female employees were promoted to

various other grade 14 positions. For example, in February of 2012,

Lisa Endicott was promoted from the position of Management Analyst

1, pay grade 12, to a different position, Management Analyst 2, pay

grade 14. However, this is evidence of a promotion to a different

position, not an upgrade of the same position occupied by the

employee to a higher pay grade. Plaintiff points to no evidence

that similarly-situated female employees had their existing

positions permanently reclassified at a higher pay grade for

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performing additional duties.

Defendant also notes that the duties assigned to plaintiff were

the result of the efforts of his supervisor, James Lowe, to create

a new position for plaintiff after plaintiff’s asset manager duties

were reassigned to Phil Anderson, a male employee. Lowe testified

that plaintiff’s sole responsibility as asset manager had been to

role out new asset management policy and procedures. Lowe Dep.,

pp. 202-203. After those responsibilities were assigned to

Anderson, Lowe recommended that plaintiff be moved to another

position in the Department so that he could be productive in a

position in his pay grade, but Lowe was told that he would have to

keep plaintiff in the IM Section. Lowe Dep., pp. 80-81. Lowe had

to attempt to create a position for plaintiff as an operations

manager because plaintiff did not have enough to do. Lowe Dep., pp.

170-171. Thus, the duties assigned to plaintiff were technically

not extra duties, as Lowe struggled to find sufficient work for

plaintiff, particularly work at a pay grade 14 level. Lowe Dep.,

pp. 35, 84, 164, 171, 193, 203. Lowe testified that he also

monitored the workload of female employees on a daily basis to

determine if extra assignments were warranted. Lowe Dep., p. 171. 

Plaintiff has produced no evidence that similarly-situated female

employees whose duties were reassigned were not then given new

duties previously performed by other supervisors. 

Plaintiff contends that in light of his performance of

additional duties, his pay grade 14 position should have been

increased to a grade 15 position as a result of the PDQ. However,

the evidence establishes that no other employee, male or female, in

plaintiff’s section was upgraded from a pay grade 14 to a pay grade

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15 as a result of the PDQ study. Plaintiff says that he relied on

Lowe’s representations concerning the possible upgrade of his

position through the PDQ study by accepting the assigned duties. 

However, this claim is a promissory estoppel claim, not a

discrimination claim. Plaintiff has produced no evidence that Lowe

arranged for pay upgrades of existing positions occupied by female

employees. Plaintiff’s promissory estoppel claim does not lie

against the State of Ohio. See Kadar v. Ohio Dep’t of Public

Safety, No. 2004-06-46 (unreported), 2005 WL 2364834 at *3 (Ohio Ct.

Claims Aug. 24, 2005)(promissory estoppel does not apply against

state agency; attempt by supervisor to negotiate plaintiff’s salary

at a rate higher than permitted by statutory pay schedule was

contrary to express statutory law).

Plaintiff’s complaint that the assignment of new duties

resulted in him working in a position without a job description in

violation of Department policy is a state law matter within the

purview of the State Personnel Review Board, not discrimination

under Title VII. There is no evidence that similarly-situated

female employees were never required to perform newly assigned

duties outside the scope of their job descriptions. Finally,

plaintiff also notes the fact that following the reclassification

of his position from Management Analyst Supervisor 2 to that of

Management Analyst within the jurisdiction of the union, he has been

required to pay union dues. However, there is no evidence that

similarly-situated female employees whose positions were

reclassified as union positions are not required to pay union dues. 

Plaintiff has failed to produce evidence sufficient to show the

existence of a genuine dispute of fact regarding the existence of

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a prima facie case of discrimination in promotions or due to the

failure to reclassify his position in a higher pay grade.

D. Discrimination in Wage Supplements

Plaintiff’s Title VII claim also relies on evidence that

certain female employees received temporary work level (“TWL”) and

temporary work adjustment (“TWA”) pay supplements, whereas he did

not. James Lowe, plaintiff’s immediate supervisor, testified in his

deposition that an employee was eligible for a TWL if he or she

assumes the duties of a vacant position that is in a higher pay

grade. Lowe Dep., p. 76. Plaintiff admitted during his deposition

that he did not qualify for a TWL. Smith Dep., p. 84. However, he

continues to base his Title VII claim on the failure to give him a

TWL, noting in his affidavit the deposition testimony of Deputy

Director Carolyn Borden-Collins that “it’s possible to get a TWL

when you’re not taking over somebody’s duties entirely[.]” BordenCollins Dep., p. 163.

This issue is resolved by Ohio statutory law. Under Ohio Rev.

Code Chapter 124, state employees are compensated in accordance with

statutory law. Until October 20, 2012, when plaintiff’s position

of Management Analyst Supervisor 2 was abolished and reclassified

as that of Management Analyst under the jurisdiction of the union,

plaintiff was an exempt employee. Under Ohio Rev. Code

§124.152(A)(1), “each exempt employee shall be paid a salary or wage

in accordance with schedule E-1 or schedule E-2 of division (B) of

this section.” §124.152(A)(1). Pay supplements are governed by

Ohio Rev. Code §124.181. TWLs are provided for in Ohio Rev. Code

§124.181(J), which states in relevant part:

Whenever an employee is assigned to work in a higher

level position for a continuous period of more than two

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weeks but no more than two years because of a vacancy,

the employee’s pay may be established at a rate that is

approximately four per cent above the employee’s current

base rate for the period the employee occupies the

position, provided that this temporary occupancy is

approved by the director.

§124.181(J). This provision clearly indicates that a TWL may be

awarded only when the employee is “assigned to work in a higher

level position ... because of a vacancy.”

In this case, there is evidence that Kathy Forrest (Management

Analyst Supervisor 1, pay grade 12) was issued a TWL to assume the

duties of Holly Howard (pay grade 14), whose position became vacant

when she was killed in an automobile accident on March 17, 2012. 

There was also evidence that from September 12, 2011, through

February 23, 2013, Cynthia Tuttle (Management Analyst Supervisor 1,

pay grade 12) received a TWL for assuming the duties of a vacant

Management Analyst Supervisor 2, pay grade 14, position. These

employees were “assigned to work in a higher level position ...

because of a vacancy.” §124.181(J). There is no evidence that

plaintiff ever filled a vacant position with a pay grade higher than

his pay grade 14 so as to be eligible for a TWL. There is also no

evidence that plaintiff ever offered to perform and was qualified

to perform the duties of any vacant position with a pay grade higher

than his pay grade 14, but was denied that opportunity when a woman

was assigned the duties of the vacant position. As there is no

evidence that plaintiff ever qualified for a TWL, plaintiff has

failed to demonstrate a prima facie case of disparate treatment

discrimination based on the failure to give him a TWL, and no

genuine dispute of fact has been shown to exist in that regard. 

 

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Plaintiff also contends that he was discriminated against on

the basis of his sex when he was assigned additional duties

previously performed by women employees, but was not given a TWA. 

Lowe testified that a TWA could be allowed for temporarily

performing the work duties of a higher pay grade position which was

not vacant. Lowe Dep., pp. 76-77. Plaintiff acknowledged that he

never requested a TWA. Smith Dep., p. 85. However, plaintiff

testified in his deposition that a TWA would be available if an

employee performs some of the duties of a person in a position with

the same or higher pay grade. Smith Dep., p. 83.

This argument is also governed by statute. The editor’s notes

to Ohio Rev. Code §124.181 (Baldwin’s Ohio Revised Code Ann., Title

1, p. 110 (Thomson Reuters 2014 Supp.)) include language from

uncodified law incorporated in various biennium budget bills. For

example, 2011 H 153, §701.30, effective September 29, 2011, reads:

Notwithstanding section 124.181 of the Revised Code, in

cases where no vacancy exists, an appointing authority

may, with the written consent of an exempt employee,

assign duties of a higher classification to that exempt

employee for a period of time not to exceed two years,

and that exempt employee shall receive compensation at a

rate commensurate with the duties of the higher

classification.

This provision was applicable during the time period relevant to

plaintiff’s claims. This language indicates that a TWA applies in

a case where no vacancy exists if the employee is assigned the

duties “of a higher classification to that exempt employee” and such

duties are assigned “with the written consent of” the employee. 

There is no evidence that plaintiff ever gave his written consent

to be assigned the duties of a position with a higher

classification. Plaintiff notes that Cynthia Tuttle (Management

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Analyst Supervisor 1, pay grade 12) received a TWA for performing

the duties of a grade 14 position after her TWL ended in February

23, 2013. Because Tuttle received a TWA for performing the duties

of a position with a higher classification, she was eligible for a

TWA. However, the evidence of record shows that plaintiff was

assigned to perform part of the duties of employees in jobs with the

same or lower classification as plaintiff’s position. Therefore,

plaintiff was not entitled to a TWA. 

The only other statutory provision which potentially authorizes

an award of higher pay is found in Ohio Rev. Code §124.15(F). That

section states that “[i]f employment conditions and the urgency of

the work require such action, the director of administrative

services may authorize payment at any rate established within the

range for the class of work, for work of a casual or intermittent

nature or on a project basis” for up to three months ... subject to

the approval of the director of budget and management as to the

availability of funds.” §124.15(F). Plaintiff testified that he

was assigned to a project which involved consolidating three of the

Department’s facilities into one facility. Smith Dep., p. 101. 

However, §124.15(F) only authorizes payment “at any rate established

within the range for the class of work.” The evidence indicates

that this consolidation project involved work within the job

responsibilities of Holly Howard (pay grade 14) and Teri Ziegler

(pay grade 12). Thus, this special project involved work at or

below the level of plaintiff’s pay grade 14 and plaintiff was

already being paid at a rate “within the range for the class of

work[.]” Plaintiff has not pointed to evidence of any instance

where a female employee was given additional pay for “work of a

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casual or intermittent nature or on a project basis” which was at

or below her current pay grade level.

By statute, plaintiff was not entitled to receive a TWL or TWA

for the duties he performed which were at or below his pay grade

level, and no genuine dispute of fact has been shown to exist on

that point. 

E. Reassignment of Asset Manager Duties

Plaintiff alleges for the first time in his memorandum contra

that he suffered an adverse job action when his asset manager duties

were taken away from him and reassigned to another male employee. 

He also argues for the first time in his memorandum contra that the

reassignment of his asset manager duties constituted discriminatory

discipline because female employees who performed poorly either were

not disciplined or were disciplined but received satisfactory

ratings.

The Department correctly notes that plaintiff did not include

these claims in his EEOC charge. Before filing suit in federal

court under Title VII, a plaintiff must first timely file a charge

of employment discrimination with the EEOC. Nichols v. Muskingum

College, 318 F.3d 674, 677 (6th Cir. 2003). “As a general rule, a

Title VII plaintiff cannot bring claims in a lawsuit that were not

included in his EEOC charge.” Younis v. Pinnacle Airlines, Inc.,

610 F.3d 359, 361 (6th Cir. 2010); see also Kuhn v. Washtenaw

County, 709 F.3d 612, 627 (6th cir. 2013). Because EEOC complaints

are liberally construed, courts may also consider claims that are

reasonably related to or grow out of the factual allegations in the

EEOC charge. Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724,

732 (6th Cir. 2006); see also Davis v. Sodexho, Cumberland College

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Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)(“whe[n] facts related

with respect to the charged claim would prompt the EEOC to

investigate a different, uncharged claim, the plaintiff is not

precluded from bringing suit on that claim”). However, a district

court lacks subject matter jurisdiction over any matters or claims

outside the scope of plaintiff’s EEOC complaint. Elkheir v.

Ashcroft, 28 F.App’x 506, 507 (6th Cir. 2002).

In this case, plaintiff makes no mention in his EEOC charge of

the removal of his asset manager duties, which occurred in August

of 2010, see Smith Dep., p. 42, nor does he mention discrimination

in the imposition of discipline. Rather, the allegations in his

EEOC charge address the assignment of additional responsibilities

to him in the fall of 2011 and the subsequent failure to increase

his pay or to reclassify his position to a higher pay range as a

result of those additional duties. The allegedly discriminatory

removal of plaintiff’s asset manager duties in 2010 and the alleged

discrimination in the imposition of discipline are not a matter

reasonably related to the allegations in plaintiff’s EEOC charge

which would prompt investigation into that matter by the EEOC. This

court therefore lacks subject matter jurisdiction to consider these

claims.

In addition, plaintiff’s judicial complaint filed in this court

contains no allegations relating to the removal of his asset manager

duties or discrimination in discipline. Fed. R. Civ. P. 8 requires

that a plaintiff’s pleadings “give the defendant fair notice of what

the claim is and the grounds upon which it rests.” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal quotation marks

and alterations omitted); see also Robertson v. Lucas, 753 F.3d 606,

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623 (6th Cir. 2014). Thus, in Joostberns v. United Parcel Services,

Inc., 166 F.App’x 783 (6th Cir. 2006), the Sixth Circuit held that

the district court properly dismissed plaintiff’s reinstatement

claim under the Family Medical Leave Act made for the first time in

response to defendant’s motion for summary judgment because

plaintiff failed to plead this claim in his complaint. See id. at

788 (failure to reinstate claim properly dismissed where the

complaint did not once mention defendant’s failure to reinstate

plaintiff, and failed to give defendant “fair notice” of plaintiff’s

reinstatement claim). Plaintiff made no mention of the removal of

his asset management duties or defendant’s disciplinary practices

in his complaint which was filed in this case. Thus, plaintiff did

not give defendant fair notice of these claims, and they are hereby

dismissed.

F. Equal Pay Act Claim

Plaintiff also asserted an Equal Pay Act claim in his

complaint. However, he did not respond to defendant’s motion for

summary judgment on that claim. Under Sixth Circuit law, a

plaintiff is deemed to have abandoned a claim when plaintiff fails

to address it in response to a motion for summary judgment. See

Brown v. VHS of Michigan, Inc., 545 F.App’x 368, 372 (6th Cir.

2013)(failure to address Equal Pay Act claim in response to summary

judgment motion constituted abandonment of that claim). Therefore,

plaintiff has abandoned his Equal Pay Act claim. In any event, the

Sixth Circuit has held that when an Equal Pay Act claim and a Title

VII claim arise out of the same set of underlying facts, both

stating a charge of wage discrimination, the standards of liability

under the two statutes are sufficiently similar that the disposition

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with respect to the two claims should be the same. See Crowder v.

Railcrew Xpress, 557 F.App’x 487, 494 (6th Cir. 2014). Because this

court has concluded that defendant is entitled to summary judgment

on plaintiff’s Title VII claim, defendant is also entitled to

summary judgment on the Equal Pay Act claim.

IV. Conclusion

In accordance with the foregoing, the court concludes that no

genuine dispute of fact has been shown to exist, and that Department

is entitled to summary judgment on plaintiff’s claims. The motion

for summary judgment (Doc. 21) is granted, and the clerk is directed

to enter judgment in favor of the defendant.

Date: November 3, 2014 s/James L. Graham 

 James L. Graham

 United States District Judge

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