UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ERICA SHIELDS, Case No. 1:18-cv-593

Plaintiff, Cole, J.

Litkovitz, M.J.

vs.

SINCLAIR MEDIA III, INC. , REPORT AND

Defendant. RECOMMENDATION

 

I. Introduction

Plaintiff Erica Shields, a resident of Kentucky, brings this pro se action against defendant 

Sinclair Media III, Inc. (Sinclair), a foreign corporation doing business in Hamilton County, 

Ohio. Plaintiff claims that Sinclair, her former employer, discriminated against her on the basis 

of her race, gender, and sexual orientation and retaliated against her in violation of Title VII of 

the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq. (Title VII) and Ohio law. 

This matter is before the Court on defendant’s motion for summary judgment under Fed. R. Civ. 

P. 56 (Doc. 46), plaintiff’s response in opposition to the motion (Doc. 52), and defendant’s reply 

memorandum (Doc. 53). 

II. Motion for summary judgment

Sinclair moves for summary judgment on each of plaintiff’s claims. (Doc. 46). Sinclair 

denies that plaintiff’s discharge was related to her race, gender, or sexual orientation. Sinclair 

alleges it terminated plaintiff’s employment “because she violated Sinclair policy by improperly 

accessing another employee’s email and searching for, printing, and taking a confidential 

document that she was unauthorized to access.” (Id. at 2). Sinclair argues that plaintiff cannot 

produce any evidence to refute the legitimate non-discriminatory and non-retaliatory reason it 

has proffered for plaintiff’s discharge. (Id.). 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 1 of 31 PAGEID #: 278
2

Plaintiff claims that Sinclair’s proffered reason is not the true reason for her termination. 

(Doc. 52). Plaintiff denies many of defendant’s factual allegations; she asserts that she cannot 

establish certain facts because she lacks knowledge and information that must be acquired 

through discovery; and she contends the Court must accept on summary judgment all statements 

she makes in opposition to Sinclair’s assertions. (Id.). Plaintiff has submitted an unsworn 

“Declaration” in support of her opposing memorandum, which Sinclair challenges as invalid and 

inadmissible evidence. 

A. Rule 56 standard

A motion for summary judgment should be granted if the evidence submitted to the Court 

demonstrates that there is no genuine issue as to any material fact and that the movant is entitled 

to summary judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “[A] party 

seeking summary judgment . . . bears the initial responsibility of informing the district court of 

the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323. 

See also Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir. 1992). The 

movant may do so by identifying that the non-moving party lacks evidence to support an 

essential element of its case. See Barnhart v. Pickrel, Shaeffer & Ebeling Co., L.P.A., 12 F.3d 

1382, 1389 (6th Cir. 1993).

Evidence in the record is viewed in the light most favorable to the nonmoving party, with 

all reasonable inferences drawn to that party’s benefit. Combs v. Int’l Ins. Co., 354 F.3d 568, 

576-77 (6th Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 2 of 31 PAGEID #: 279
3

Summary judgment is appropriate only where the evidence raises no genuine issues of material 

fact “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 

U.S. at 248.

Because plaintiff is a pro se litigant, her filings are liberally construed. Spotts v. United 

States, 429 F.3d 248, 250 (6th Cir. 2005); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999) 

(“pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings”); 

Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that the Court holds pleadings of pro se 

litigants to less stringent standards than formal pleadings drafted by lawyers).

B. Plaintiff’s “Declaration”

Plaintiff has submitted a “Declaration” and exhibits in response to defendant’s motion. 

(See Doc. 52). Defendant argues that the declaration and exhibits are not “admissible evidence” 

that can be considered by the Court on summary judgment pursuant to Fed. R. Civ. P. 56(c)(4). 

(Doc. 53 at 1-2, citing Nelson v. Clermont County Veterans Serv. Com’n, No. 1:11-cv-335, 2013 

WL 5934393, at *5 (S.D. Ohio Nov. 1, 2013)). Defendant contends that the declaration lacks a 

valid signature as required under 28 U.S.C. § 1746 and S.D. Ohio Civ. R. 83.5. (Id. at 2). 

Defendant further argues that even if the declaration were signed, the Court cannot consider the 

declaration to the extent it is based on plaintiff’s opinions and beliefs rather than her personal 

knowledge. (Id.). In addition, defendant argues that the Court cannot consider the exhibits 

attached to plaintiff’s opposing memorandum because they are not authenticated. (Id. at 3, citing 

Saleh v. City of Warren, Ohio, 86 F. App’x 866, 868 (6th Cir. 2004)). 

An affidavit must be sworn to in front of an “officer authorized to administer oaths,” but 

“unsworn declarations under penalty of perjury” may be used with the same force and effect to 

support, evidence, establish, or prove any matter that is required or permitted to be supported by 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 3 of 31 PAGEID #: 280
4

an affidavit. 28 U.S.C. § 1746; Stewart v. Wilkinson, No. 2:03-cv-0687, 2009 WL 1322307, at 

*2 (S.D. Ohio May 8, 2009) (holding that a declaration that was not notarized was admissible for 

purposes of summary judgment). Declarations executed within the United States must 

substantially conform to the following language: “I declare (or certify, verify, or state) under 

penalty of perjury that the foregoing is true and correct.” 28 U.S.C. § 1746(2). To be valid, an 

unsworn declaration must be “signed, in writing, and dated, and must verify that its content is 

‘true under penalty of perjury.’” Tdata Inc. v. Aircraft Tech. Publishers, No. 2:03-cv-264, 2007 

WL 464411, at *3 (S.D. Ohio Feb. 6, 2007) (citing 28 U.S.C. § 1746; Pollock v. Pollock, 154 

F.3d 601, 612 n.20 (6th Cir. 1998)). See also Bailey v. Oakwood Healthcare, Inc., No. 15-

11799, 2017 WL 2403573, at *1 (E.D. Mich. June 2, 2017) (§ 1746 permits an unsworn 

statement to suffice in place of a sworn statement only if the unsworn statement contains the 

signatory’s statement that “the contents of the document are true under penalty of perjury, the 

declarant’s signature, and the date.”). 

Local Rule 83.5(c) provides that “[t]he actual signature of a Filing User shall be 

represented, for ECF purposes, by ‘s/’ followed by the typed name of the attorney or other Filing 

User,” and a signature of this type “is equivalent to a hand-signed signature for all purposes. . . .” 

S.D. Ohio Civ. R. 83.5(c). A declaration by a non-attorney which contains an electronic 

signature instead of the actual signature is not properly signed and therefore is not competent

evidence under Rule 56. Tdata, 2007 WL 464411, at *3 (citing Vanguard Transp. Sys., Inc. v. 

Volvo Trucks N. Am., Inc., No. 2:04-cv-889, 2006 WL 2373273, at *6 (S.D. Ohio Aug. 14, 2006) 

(“non-attorney’s electronically signed declaration ‘was not properly signed in compliance with 

the rules of this District, and will not be considered as evidence under Rule 56’”)). See also

Malibu Media, LLC v. Doe, No. 2:14-cv-2404, 2014 WL 12586343, at *2 (S.D. Ohio Dec. 4, 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 4 of 31 PAGEID #: 281
5

2014) (“non-attorney’s electronically signed declaration is not properly signed in compliance 

with the rules of this District”) (citing Tdata Inc., 2007 WL 464411, at *3; Vanguard Transp. 

Sys., Inc., 2006 WL 2373273, at *6). See also S.D. Ohio Civ. R. 1.1(e) (the Local Rules, 

“supplemented by the Electronic Filing Policies and Procedures Manual (the ‘ECF Manual’), as 

amended from time to time by the Clerk, govern use of the Electronic Case Filing (‘ECF’) 

system in this District”); CM/ECF Procedures Guide § 1.4 (Rev. July 2019) (“In general, the 

Clerk’s Office will scan and file into CM/ECF . . . [o]riginal documents with original signature 

of a pro se litigant. . . .”)1. 

Plaintiff’s unsworn declaration does not comply with this Court’s Local Rules and 28 

U.S.C. § 1746. The declaration states that plaintiff “swears and affirms under penalty of 

perjury” that the assertions in her declaration are “true and correct,” and the declaration includes 

the following typewritten text at the end:

“Executed on April 6, 2020 By: Erica Shields”

(Doc. 52 at 2, 4). The declaration does not include plaintiff’s actual handwritten signature as 

required under § 1746 and S.D. Ohio Civ. R. 83.5. The declaration therefore is not admissible 

evidence, and plaintiff cannot rely on the statements in the declaration to oppose defendant’s 

motion for summary judgment.

Even if plaintiff’s unsworn declaration included a valid signature, it is not competent 

evidence to the extent the declaration does not include facts that would be admissible in

evidence. “An affidavit or declaration used to support or oppose a motion [for summary 

1 The ECF Manual can be found at https://www.ohsd.uscourts.gov/cm-ecf-button2. 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 5 of 31 PAGEID #: 282
6

judgment] must be made on personal knowledge, set out facts that would be admissible in 

evidence, and show that the affiant or declarant is competent to testify on the matters stated.” 

Fed. R. Civ. P. 56(c)(4); Totman v. Louisville Jefferson County Metro Govt., 391 F. App’x 454, 

464 (6th Cir. 2010) (citing former Fed. R. Civ. P. 56(e)(1)).

2

 Plaintiff’s declaration includes 

some statements that are based on her firsthand knowledge, but numerous other statements in the 

declaration are based only on her information and belief. Statements in the declaration that are

based on her information and belief do not comport with the requirement that a supporting 

affidavit or declaration offered on summary judgment be “made on personal knowledge.” See

Smith v. Doe, No. 1:14-cv-948, 2017 WL 784670, at *4 (S.D. Ohio Feb. 28, 2017), report and 

recommendation adopted, 2017 WL 1382765 (S.D. Ohio Apr. 18, 2017) (citing former Rule

56(e)). See also Totman, 391 F. App’x at 464 (citing Fed. R. Evid. 602) (“A witness may not 

testify to a matter unless evidence is introduced sufficient to support a finding that the witness 

has personal knowledge of the matter.”). Plaintiff’s statements in her declaration that are “based 

upon h[er] ‘belief’” do not “demonstrate the personal knowledge required by Fed. R. Civ. P. 

56[(c)(4)]).” Totman, 391 F. App’x at 464 (citing Alpert v. United States, 481 F.3d 404, 409 (6th 

Cir. 2007)). Further, to the extent plaintiff’s declaration is speculation, it is not admissible 

evidence. Totman, 391 F. App’x at 464. The Court cannot consider those portions of the 

declaration that do not comply with the requirements of Rule 56(c)(4). See Brautigam v. Damon, 

No. 1:11-cv-551, 2015 WL 11018199, at *8 (S.D. Ohio Nov. 17, 2015), report and 

recommendation adopted, 2016 WL 792014 (S.D. Ohio Mar. 1, 2016), aff’d on other grounds, 

2 Rule 56 has been amended and former subsection (e)(1) is now found at subsection (c)(4). See Advisory 

Committee Note, Fed. R. Civ. P. 56, 2010 Amendment.

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 6 of 31 PAGEID #: 283
7

697 F. App’x 844 (6th Cir. 2017) (refusing to consider “portions of the affidavit that do not 

comply with Fed R. Civ. P. 56(c)(4),” which included “self-serving statements, inferences or 

opinions not based on observations or other first-hand experiences, mere speculation and 

conjecture, and inadmissible hearsay.”).3

Finally, in ruling on a summary judgment motion, the Court cannot consider exhibits that 

would not be admissible into evidence. Saleh, 86 F. App’x at 868 (holding that exhibits were 

“not proper evidence for opposing a summary judgment motion because . . . they [were] 

unauthenticated, and . . . replete with hearsay”) (quoting Wiley v. United States, 20 F.3d 222, 226 

(6th Cir. 1994) (citations omitted)). Plaintiff’s exhibits are not authenticated, and they include 

statements that are based on information that is not within plaintiff’s personal knowledge. (See,

e.g., Doc. 52 at 3 - “Steve Wilson . . . actually retrieved the document from the printer and 

showed someone else the document way before [plaintiff] even walked into the room. He also 

states they were puzzled and thought the information was confidential. . . .”). The exhibits are 

not admissible into evidence, and the Court cannot consider the exhibits on summary judgment. 

C. Facts

The facts summarized below are undisputed except where otherwise noted. 

Plaintiff is an African-American female and lesbian who married in June of 2016. (Doc. 

52 at 2). Sinclair is a company in the business of broadcasting television programs to the public. 

(Doc. 45-1, Linda O’Brien Declaration, ¶ 3). Plaintiff started working for Sinclair in September 

2016 as a Master Control Operator. (Id., ¶ 4; Doc. 1 at ¶ 12). Plaintiff’s duties were to ensure 

3 Even though plaintiff’s declaration is not competent evidence, the undersigned nonetheless finds it necessary to 

include assertions from the declaration in this Report and Recommendation in order to make sense of plaintiff’s 

claims, the factual allegations underlying her claims, and the matters asserted by defendant which she disputes. 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 7 of 31 PAGEID #: 284
8

the accuracy and quality of audio and video broadcast by the station. (Plaintiff’s Declaration, ¶ 

2(A)). She received a good performance review in May of 2017, including the highest marks 

possible for “work ethic” and “policies and procedures are consistently followed.” (Id.). 

Sinclair terminated plaintiff’s employment on October 30, 2017. (O’Brien Decl., Doc. 

45-1, ¶¶ 5, 11). Sinclair asserts that the reason it terminated plaintiff was because she had “(1) 

accessed another employee’s email account when he left a computer without logging out, and (2) 

searched for and printed a document from such email account containing confidential and 

personally identifiable information (‘PII’) about other Sinclair employees.” (Id.). Plaintiff 

alleges that the employee, Greg Jones, admitted that he left his email and computer open without 

logging out. (Doc. 52 at 5, citing O’Brien Decl., Doc. 45-1, ¶ 5 and Doc. 46 at 2-3). Sinclair

acknowledges that Jones “left a computer without logging out”; however, Sinclair conducted an

investigation following the incident and learned that plaintiff had to “open the other employee’s 

email inbox, as it was not left on the screen,” and she “opened the [email] with the attachment 

containing the PII. . . .” (Doc. 46 at 2; O’Brien Decl., Doc. 45-1, ¶¶ 5, 6). Sinclair learned that 

after doing so, plaintiff searched through the employee’s emails, opened the email with the 

attachment containing the PII, changed the printer settings to print the document out to a printer 

in a different area, and printed the confidential document. (O’Brien Decl., Doc. 45-1, ¶ 7). 

Witnesses verified that plaintiff retrieved the document from a printer in a different area of the 

building. (Id., ¶ 8). Plaintiff has never returned the document to Sinclair. (Id., ¶ 9). 

As part of its investigation, Sinclair obtained statements from Greg Jones, the employee 

whose account plaintiff had accessed, and witnesses who saw plaintiff retrieve the document 

from the printer. (Id., ¶ 10). Sinclair also gave plaintiff an opportunity to provide her version of 

the incident. (Kurtis Thelen Declaration, Doc. 45-2, ¶ 6). Defendant alleges that plaintiff 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 8 of 31 PAGEID #: 285
9

initially denied that she had printed the confidential document, but she then admitted doing so 

after she was confronted with the other witnesses’ accounts. (Id., ¶ 7). Sinclair concluded that 

plaintiff’s denial was not credible and that she had violated company policy, and Sinclair 

terminated plaintiff’s employment. (Id., ¶¶ 8, 9). Jones, who had been working as an Operations 

Manager at Sinclair for over 25 years and did not have any prior disciplinary incidents, was 

formally reprimanded for failing to log out of his computer. (O’Brien Declaration, Doc. 45-1, ¶¶ 

12, 13, 14). 

Plaintiff denies that she “wrongfully accessed and printed a list of employee names and 

addresses under another employee [sic] log in information.” (Doc. 52, ¶ 2(A)). Plaintiff alleges 

that even if this were true, “she would not have accessed anything that she could not have gotten 

out of a phone book.” (Id.). Plaintiff states:

The paper was handed to her by another employee, [sic] does not mean it was a 

paper she actually printed. She stated that she was doing live news when Brian 

came into the audio booth and asked her to put her time card in on the computer in 

the audio booth. She made the gesture to let Brian know she seen [sic] where the 

computer was sitting and hit the mouse by mistake. She admits that she may have 

clicked out of something that was up and, or accidentally made something print 

[sic] she is/was unsure if she printed that exact paper out due to the fact that her 

attention was on the audio she was broadcasting for the live news trying to [sic] 

focused on her job duties. The other employee which was her union rep Steven 

Wilson he [sic] is the one who actually retrieved the document from the printer and 

showed someone else the document way before she even walked into the room. He 

also states that they were puzzled and thought the information was confidential, but 

he still handed her the document. She eventually losses [sic] her job due to the fact 

she took full responsibility for receiving the document from Steven Wilson. . . . 

She express [sic] she felt like she was being set up because of her complaint. They 

stated that after being placed on [sic] performance plan and successfully completing 

it, that any further violations of company policy will subject her to disciplinary 

actions, up to and including termination of employment.

(Id.). 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 9 of 31 PAGEID #: 286
10

Plaintiff alleges that before the computer incident, and shortly after receiving a good 

performance review in May 2017, supervisor Brian Wedig threatened that her seniority would 

not protect her from adverse decisions. (Doc. 52, ¶ 2(A)). She asserts that after “being on the 

job for month’s [sic],” she was singled out for “petty and untrue” matters at work. (Id.). She 

alleges that she verbally complained to management and stated she believed she was being 

“singled out” based on her race and gender because “her peers were not being criticized for petty 

matters.” (Id.). Plaintiff contends she was told in response that there was “no proof that her 

peers were goofing off at work,” and there would be an investigation if she could provide proof. 

(Id.). Plaintiff offered to give her two-week notice, which management rejected. (Id.). Plaintiff 

contends she provided video recordings as proof of unprofessional and inappropriate conduct of 

other employees to Human Resources to support her discrimination complaint. (Id.). Plaintiff 

alleges there was no investigation and instead she was retaliated against and accused of violating 

company policy for “providing the proof management instructed her to get.” (Id.). Plaintiff 

contends she was placed on a performance improvement plan for 30 days for obtaining the 

videos she provided, which she successfully completed. (Id.). Plaintiff alleges she was singled 

out by management to paint and manually clean ventilation and ceiling ducts, which was not in 

her job description. (Id.). 

These allegations appear to refer to a complaint about misbehavior by other Master 

Control Operators, which defendant’s evidence shows plaintiff made on August 16, 2017. 

(Kristin Swansiger Declaration, Doc. 45-3, ¶¶ 3, 5). Around this same time, in August and 

September 2017, other Master Control Operators complained that plaintiff was behaving 

inappropriately. (Id., ¶ 6). Ultimately, plaintiff and three other Master Control Operators were 

written up for violating company policies in early September 2017. (Id.). Sinclair installed 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 10 of 31 PAGEID #: 287
11

cameras in the Master Control Room on September 21, 2017, after which plaintiff told Regional 

Human Resources Manager Swansiger that she did not have any further complaints. (Id., ¶ 7). 

Plaintiff also complained in August 2017 that her supervisor, Wedig, treated her less 

favorably and said that he “[did] not care for that life style,” knowing that plaintiff is gay. 

(Swansiger Decl., Doc. 45-3, ¶ 3). Plaintiff claims that Wedig also commented that he did not 

“want to see it ‘in [his] face,’” which was a reference to her sexual orientation. (Doc. 52, ¶ 

2(A)). Sinclair investigated plaintiff’s complaint at the time. (Swansiger Decl, Doc. 45-3, ¶ 4). 

Wedig denied making the statement. (Id.). 

D. Gender and race discrimination claims (Counts I-IV)

Plaintiff brings claims for discrimination based on her gender and her race in Counts I 

through IV of the complaint. (Doc. 1, Counts I-IV). Plaintiff alleges in the complaint that she 

was discriminated against when her supervisor, Wedig, subjected her to “petty criticisms” on 

unspecified dates. (Doc. 1, ¶ 14). Plaintiff claims that Wedig did not criticize unidentified 

“white, straight men for legitimate unprofessionalism at work.” (Id., ¶ 16). Plaintiff alleges that 

Sinclair reprimanded her for using her phone to record other employees’ misbehavior, which she 

did to support her discrimination complaint, but Sinclair did not reprimand the unnamed 

employees she recorded. (Id., ¶ 19). In addition, plaintiff alleges that Sinclair terminated her for 

allegedly improperly accessing confidential information “via a co-worker’s computer station,” 

but Sinclair did not terminate a white, heterosexual male co-worker who was involved in the 

same computer incident. (Id., ¶ 20). 

Defendant contends it is entitled to summary judgment on plaintiff’s claims of gender 

and race discrimination alleged in Counts I through IV. The Court finds that there are no 

genuine issues of disputed fact as to these claims and that defendant is entitled to summary 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 11 of 31 PAGEID #: 288
12

judgment as a matter of law on plaintiff’s claims of race and gender discrimination raised in 

Counts I through IV of the complaint. 

1. Governing law

Title VII provides that “it shall be an unlawful employment practice for an employer . . . 

to discriminate against any individual . . . because of such individual’s race [or] sex. . . .” 42 

U.S.C. § 2000e-2(a). Ohio Rev. Code § 4112.02 makes it unlawful for an employer to 

“discharge without just cause, to refuse to hire, or otherwise to discriminate against that person 

with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter 

directly or indirectly related to employment.” Ohio Rev. Code § 4112.02. The Ohio courts 

analyze discrimination claims under Ohio law based on the same standards applicable to claims 

under federal law. Fletcher v. U.S. Renal Care, 709 F. App’x 347, 351 n.1 (6th Cir. 2017)

(citing Birch v. Cuyahoga County Probate Court, 392 F.3d 151, 163 (6th Cir. 2004) (citing 

Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 421 N.E.2d 

128, 131-32 (Ohio 1981)). Because the same standards apply, the Court will analyze plaintiff’s 

federal and state discrimination claims together as though all such claims had been brought under 

Title VII. 

To establish a prima facie case of discrimination under Title VII, plaintiff must show 

that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) 

she was qualified for the position in question; and (4) she was replaced by or treated less 

favorably than a similarly-situated individual outside the protected class. Mickey v. Zeidler Tool 

and Die Co., 516 F.3d 516, 521 (6th Cir. 2008); Yazdian v. ConMed Endoscopic Techs., Inc., 

793 F.3d 634, 654-55 (6th Cir. 2015) (citing Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 

2012)). An adverse employment action is a “materially adverse change in the terms and 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 12 of 31 PAGEID #: 289
13

conditions of [plaintiff’s] employment.” Smith v. City of Salem, Ohio, 378 F.3d 566, 575 (6th 

Cir. 2004) (quoting Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999)). A “bruised ego,” 

a “mere inconvenience[,] or an alteration of job responsibilities” is not enough to constitute an 

adverse employment action. Id. at 575-76 (citing White v. Burlington N. & Santa Fe R. Co., 364 

F.3d 789, 797 (6th Cir. 2004), aff’d sub nom. Burlington N. and Santa Fe Ry. Co. v. White, 548 

U.S. 53 (2006) (quoting Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir. 1996)). 

To be considered “similarly situated” for purposes of the fourth prong of the prima facie 

case, the employment situation of the comparator and plaintiff must be similar “in all relevant 

aspects.” Romans v. Michigan Dept. of Human Services, 668 F.3d 826, 837-38 (6th Cir. 2012)

(quoting Highfill v. City of Memphis, 425 F. App’x 470, 474 (6th Cir. 2011)). In the disciplinary 

context, plaintiff must also show that the employees with whom she seeks to compare herself 

“engaged in acts of comparable seriousness.” Martinez v. Cracker Barrel Old Country Store, 

Inc., 703 F.3d 911, 917 (6th Cir. 2013). In making this assessment, the Court must consider 

factors such as whether plaintiff and the alleged comparators “have dealt with the same 

supervisor, have been subject to the same standards and have engaged in the same conduct 

without such differentiating or mitigating circumstances that would distinguish their conduct or 

the employer’s treatment of them for it.” Id. (citation and internal quotations omitted).

Once a plaintiff establishes a prima facie case, the burden of production shifts to the 

employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. 

Henry v. Abbott Laboratories, 651 F. App’x 494, 499 (6th Cir. 2016) (citing White v. Columbus 

Metro. Housing Auth., 429 F.3d 232, 240 (6th Cir. 2005)). If the employer satisfies this burden,

the burden of production then shifts back to the plaintiff to show that the employer’s proffered

legitimate, nondiscriminatory reason for the adverse employment action was mere pretext for

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 13 of 31 PAGEID #: 290
14

intentional discrimination. Id. (citing White, 429 F.3d at 238). Plaintiff may demonstrate 

pretext by showing “(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 they were insufficient to 

motivate the employer’s action.” Davis v. City of Clarksville, 492 F. App’x 572, 580 (6th Cir. 

2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir. 2009)). To survive 

summary judgment, the plaintiff “must produce sufficient evidence from which a jury could 

reasonably reject” the defendant’s explanation for the termination. Davis, 492 F. App’x at 580 

(quoting Chen, 580 F.3d at 400). 

2. Defendant is entitled to summary judgment on plaintiff’s gender and race 

discrimination claims raised in Counts I-IV of the complaint.4 

Defendant argues that plaintiff cannot identify any similarly-situated employees outside 

the protected class who were treated more favorably than plaintiff. (Doc. 46 at 6). Defendant 

further argues that even if plaintiff could establish a prima facie case of race or gender 

discrimination, defendant has articulated a legitimate, nondiscriminatory reason for her discharge

and plaintiff cannot show that the reason for her discharge was a pretext for discrimination. 

(Id.). 

Plaintiff has not established a prima facie case of gender or race discrimination on the 

claims alleged in Counts I through IV of the complaint. Plaintiff claims that defendant

discriminated against her based on her gender and race by (1) criticizing her for minor work 

infractions but not criticizing her co-workers for allegedly unprofessional conduct, and (2) 

terminating her employment. (Doc. 1, Counts I-IV; Doc. 52 at 2, 6). As to the alleged 

4 Plaintiff’s claims of gender discrimination and retaliation based on her sexual orientation (Counts V-VI of the 

complaint) are addressed in § D(3) infra.

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 14 of 31 PAGEID #: 291
15

discriminatory mistreatment, plaintiff alleges that Wedig criticized her for “petty or untrue workethic related infractions,” such as not being at her desk “all morning” when she had been away

only a few minutes; not turning the lights on in the media control room during operations; and 

laughing. (Doc. 1, ¶ 14). She claims that defendant did not “criticize white, straight men for 

legitimate unprofessionalism at work.” (Id., ¶ 16). However, plaintiff has not introduced any 

evidence to show that Wedig’s alleged criticism of her for petty work infractions constituted, or 

resulted in, an adverse employment action. Plaintiff only vaguely alleges that Wedig criticized 

her for minor work infractions and does not provide any evidence as to the nature and frequency 

of the criticism. Further, plaintiff does not allege that she was written up or otherwise 

disciplined in any manner for those alleged infractions. Thus, Wedig’s alleged criticism does not 

satisfy the second element of a prima facie case of race or gender discrimination. 

Even assuming plaintiff did suffer an adverse employment action by being “singled out”

for criticism by Wedig, plaintiff has not produced any evidence to satisfy the fourth element of 

her prima facie case. Plaintiff has not identified employees who allegedly engaged in 

unprofessional work conduct and were not subjected to criticism for their conduct. Her nonspecific and unsupported assertions that defendant did not “criticize white . . . men” for 

unprofessional behavior, and “her peers were not being criticized for petty matters” (Doc. 1, ¶ 

16, Doc. 52 at 2, ¶ 2) are insufficient to meet her burden of proof on summary judgment. See 

Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008) (“Conclusory assertions, 

supported only by Plaintiff’s own opinions, cannot withstand a motion for summary judgment.”). 

Thus, there is no basis for finding that individuals who were allegedly treated more favorably 

than plaintiff were outside one or both of the protected classes (i.e., that they were non-AfricanAmerican or male); that they were subject to the same employment standards; and that they dealt 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 15 of 31 PAGEID #: 292
16

with the same supervisor. See Martinez, 703 F.3d at 917. Nor has plaintiff provided evidence to 

show that she and other employees engaged in comparable conduct for which only plaintiff was 

criticized. In short, there is not a scintilla of evidence to show that Sinclair treated plaintiff less 

favorably than unnamed non-African-American or male employees who were similarly situated 

to plaintiff by subjecting her to criticism for petty and untrue work infractions. 

Plaintiff also alleges that Sinclair treated her less favorably than a similarly-situated 

individual outside the protected class by terminating her employment. Plaintiff seeks to compare 

her treatment to that of Greg Jones, the employee who failed to log out of his computer and who 

plaintiff identifies as white and male. However, plaintiff has not shown that she and Jones were 

similarly situated or that they committed “acts of comparable seriousness.” Martinez, 703 F.3d 

at 917. Plaintiff was disciplined for accessing Jones’s email account on his computer and 

printing a confidential document from the account. (O’Brien Declaration, Doc. 45-1, ¶ 12). 

Jones was formally reprimanded for failing to log out of a computer while away from it. 

(O’Brien Declaration, Doc. 45-1, ¶¶ 5-7). Jones’s failure to log out of a computer and plaintiff’s

affirmative acts of accessing a co-worker’s email account, locating and accessing a confidential 

document, and printing the confidential document are not infractions of comparable seriousness. 

Cf. King v. Enter. Leasing Co. of Detroit, No. 03-71778, 2007 WL 1806208, at *31 (E.D. Mich. 

June 21, 2007) (employees’ conduct was comparable where both employees engaged in conduct 

that “was regarded as intentional rather than negligent.”). The “qualitative difference in conduct 

renders futile any attempt to satisfy the ‘similarly situated’” element. Palmer v. Potter, 97 F. 

App’x 522, 525 (6th Cir. 2004). 

In addition, differences in job title and responsibilities, experience, and disciplinary 

history may establish that two employees are not similarly situated. See Leadbetter v. Gilley,

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 16 of 31 PAGEID #: 293
17

385 F.3d 683, 691 (6th Cir. 2004); Campbell v. Hamilton County, 23 F. App’x 318, 325-26 (6th 

Cir. 2001). See also Berry v. City of Pontiac, 269 F. App’x 545, 550 (6th Cir. 2008) (police 

officers were not similarly situated where there was a “marked contrast” in their discipline 

records at the time of the disciplinary action; white officer had two prior disciplinary infractions 

while complaining officer had many). Even when two employees engage in the same conduct

(which is not the situation here), “the disparities in the disciplinary records” of the employees 

may “defeat[] any inference of . . . discrimination that might otherwise arise” from a decision to 

terminate one employee but not the other. Hall v. Sky Chefs, Inc., 784 F. Supp. 2d 811, 821 

(E.D. Mich. 2011) (citing Russell v. University of Toledo, 537 F.3d 596, 607-08 (6th Cir. 2008) 

(“finding that the plaintiff in that case was not similarly situated to co-workers who lacked prior 

disciplinary records”)). Plaintiff and Jones’s work records were not comparable with regard to 

both their length of employment with Sinclair and their disciplinary histories. Plaintiff had been 

employed by Sinclair for one year and had been disciplined the prior month for performance 

issues when the computer incident occurred, and Jones was a 25-year employee of Sinclair who 

had no prior disciplinary record. (O’Brien Declaration, Doc. 45-1, ¶¶ 4, 14; Swansiger

Declaration, Doc. 45-3, ¶ 6). Thus, plaintiff cannot establish the fourth prong of her prima facie 

case by showing she was treated less favorably than Jones, who is not a valid comparator. 

Assuming for summary judgment purposes that plaintiff had produced sufficient evidence 

to establish a prima facie case of race or gender discrimination based on her termination, 

defendant Sinclair has articulated a legitimate, nondiscriminatory reason for plaintiff’s discharge. 

Defendant states it terminated plaintiff’s employment because she violated the company’s 

computer policy “when she improperly accessed another employee’s email account and printed a 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 17 of 31 PAGEID #: 294
18

confidential document.” (Doc. 46 at 8). Plaintiff challenges defendant’s conclusions as factually 

unsupported. (Doc. 52). 

Where the plaintiff alleges there was no basis in fact for the adverse employment action, 

she cannot establish pretext even if the reason for her discharge was ultimately shown to be 

incorrect “as long as an employer has an honest belief in its proffered non-discriminatory 

reason[.]” Tillman v. Ohio Bell Tel. Co., 545 F. App’x 340, 349 (6th Cir. 2013) (quoting 

Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001); Smith v. 

Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998) (“[S]o long as the employer honestly believed 

in the proffered reason given for its employment action, the employee cannot establish pretext 

even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.”)). 

See also Khan v. Canonical USA, Inc., No. 3:18-cv-182, 2019 WL 6170806, at *8 (S.D. Ohio 

Nov. 20, 2019). When the “honest belief” rule is invoked, “the plaintiff must allege more than a 

dispute over the facts upon which h[er] discharge was based. [S]he must put forth evidence 

which demonstrates that the employer did not ‘honestly believe’ in the proffered nondiscriminatory reason for its adverse employment action.” Tillman, 545 F. App’x at 349 

(quoting Braithwaite v. Timken Co., 258 F.3d 488, 493-94 (6th Cir. 2001) (citing Smith, 155 F.3d 

at 806-07)). To determine whether the defendant had an “honest belief” in the proffered basis 

for the employee’s discharge, the Court examines whether the defendant has established 

“‘reasonable reliance’ on the particularized facts that were before it at the time the decision was 

made.” Id. (quoting Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 502-03 (6th Cir. 

2007); Braithwaite, 258 F.3d at 494). In making this determination, it is not necessary that the 

employer’s decisional process “be optimal” or that the employer “left no stone unturned. Rather, 

the key inquiry is whether the employer made a reasonably informed and considered decision 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 18 of 31 PAGEID #: 295
19

before taking an adverse employment action.” Id. (quoting Seeger v. Cincinnati Bell Tel. Co.,

681 F.3d 274, 285 (6th Cir. 2012) (quoting Smith, 155 F.3d at 807)). It is the employer’s burden 

to identify “the particularized facts that it reasonably relied upon in order to rebut the inference 

of pretext.” Davis, 492 F. App’x at 581 (citing Clay v. United Parcel Serv., Inc., 501 F.3d 695, 

714 (6th Cir. 2007)).

There is no dispute that Sinclair investigated the computer incident. (O’Brien Decl., Doc. 

45-1, ¶ 10). As part of its investigation, Sinclair obtained statements from Jones and witnesses 

who saw plaintiff retrieve the confidential document from the printer. (Id.). Sinclair also gave 

plaintiff an opportunity to tell her side of the story. (Kurtis Thelen Decl., Doc. 45-2, ¶ 6). 

Sinclair determined that plaintiff’s denial of the facts it uncovered in its investigation was not 

credible and that she had violated company policy. (Id., ¶¶ 8, 9). Plaintiff has not alleged any 

facts or produced any evidence to show that Sinclair lacked an “honest belief” in the conclusion 

it reached. Plaintiff relies on nothing more than speculation to raise doubt about Sinclair’s 

conclusion. Plaintiff alleges that the fact “[t]he [confidential] paper was handed to her by 

another employee, does not mean it was a paper she actually printed.” (Doc. 52 at ¶ 2(a)). But 

plaintiff also admits she may have printed the document when attempting to “put her time card in 

on the computer in the audio booth.” (Id.). Plaintiff alleges she may have clicked out of the 

screen that was up on Jones’s computer and “accidentally” caused a document to print out by 

gesturing and mistakenly hitting the mouse, but she is “unsure if she printed that exact paper out”

because she was focusing on her job duties at the time. (Id.). Plaintiff also asserts that another 

employee retrieved “the document” from the printer “before she even walked into the room,” and

she “took full responsibility for receiving the document” from the employee. (Id.). Sinclair 

could reasonably rely on the sequence of events, the witness statements it obtained, and 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 19 of 31 PAGEID #: 296
20

plaintiff’s lack of a valid explanation to conclude that plaintiff had violated company policy by 

accessing another employee’s computer and email account and printing a confidential document 

that she was not authorized to access. Abdulnour, 502 F.3d at 502-03. The particularized facts 

upon which Sinclair reasonably relied rebut any alleged inference of pretext in this case.

Plaintiff has not established a prima facie case of discrimination based on her race or 

gender. She has not shown that defendant treated her less favorably than similarly-situated 

individuals outside one or both of the protected classes. Further, she has not produced evidence 

to show that defendant’s legitimate, nondiscriminatory reason for terminating her employment 

was a pretext for race or gender discrimination. Defendant is entitled to summary judgment in 

its favor on plaintiff’s claims of gender and race discrimination raised in Counts I through IV of 

the complaint. 

3. Gender discrimination claims based on sexual orientation (Counts V-VI)

Plaintiff claims that defendant discriminated against her based on her sexual orientation, 

and therefore her gender, by treating her less favorably than similarly-situated male employees 

and terminating her employment. (Doc. 1, Counts V-VI). Plaintiff alleges that defendant 

discriminated against her because she “engaged in romantic relationships (or desire[d] to engage 

in romantic relationships) with women” by “treat[ing] [her] substantially worse than men who 

engage in romantic relationships (or desire to engage in romantic relationships) with women.” 

(Id.). Plaintiff also alleges that her supervisor, Brian Wedig, showed “disdain for her sexual 

orientation” by making comments such as he “did not care for that lifestyle” and he did not 

“want to see it in [his] face.” (Id., ¶ 15).5

 

5 Plaintiff also alleged in the complaint that she “reasonably believed Mr. Wedig’s pretty criticisms of her stemmed 

from his biases against homosexuals, and [she] did not see Mr. Wedig or others criticize white, straight men for 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 20 of 31 PAGEID #: 297
21

Defendant moves for summary judgment on plaintiff’s claims of discrimination based on 

her sexual orientation. (Doc. 46). Defendant alleges that discrimination based on sexual 

orientation is not actionable under either Title VII or Ohio Rev. Code § 4112.02. (Id. at 12).

To date, the Ohio Supreme Court has not found that a claim of discrimination based on 

“sexual orientation alone” is actionable under Ohio Rev. Code § 4112.02(A). Inskeep v. W. Res. 

Transit Auth., No. 12 MA 72, 2013 WL 979054, *4 (Ohio App. 7th Dist. March 8, 2013); see 

also Burns v. Ohio State Univ. College of Veterinary Med., No. 13AP-633, 2014 WL 1317499, 

*3 n.2 (Ohio App. 10th Dist. March 25, 2014) (“Each appellate district in [Ohio] that has 

considered such a claim has concluded that the term ‘sex’ in R.C. 4112.02(A) does not include 

sexual orientation.”). Further, at the time plaintiff filed her complaint and the parties briefed the 

summary judgment motion, neither the United States Supreme Court nor the United States Court 

of Appeals for the Sixth Circuit had found that discrimination against individuals based on their 

sexual orientation violates Title VII. See Vigil v. STS Sys. Integration, LLC, No. 3:18-cv-324, 

2019 WL 4674562, at *4 (S.D. Ohio Sept. 25, 2019) (citing Vickers v. Fairfield Med. Cir., 453 

F.3d 757, 763 (6th Cir. 2006); Gilbert v. Country Music Ass’n, Inc., 432 F. App’x 516 (6th Cir. 

2011)). However, the Sixth Circuit had analyzed similar circumstances before plaintiff filed suit 

and had found that “[s]ex stereotyping based on a person’s gender non-conforming behavior is 

impermissible discrimination” under Title VII. Smith v. City of Salem, 378 F.3d 566, 573 (6th 

Cir. 2004). See also Equal Empl. Opportunity Commn. v. R.G. &. G.R. Harris Funeral Homes, 

Inc., 884 F.3d 560, 572 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton County, Georgia, No. 

legitimate unprofessionalism at work.” (Doc. 1, ¶ 16). However, plaintiff does not make this allegation in her 

response to defendant’s motion for summary judgment. (Doc. 52). The Court therefore has not considered this 

allegation, which plaintiff has not produced any evidence to support. 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 21 of 31 PAGEID #: 298
22

17-1618, 2020 WL 3146686 (U.S. June 15, 2020). In Smith, the Court held that a transgender 

plaintiff who suffered adverse employment actions after “he began to express a more feminine 

appearance and manner on a regular basis” had an actionable discrimination claim under Title 

VII because the “discrimination would not [have] occur[red] but for the victim’s sex. . . .” Id. at 

572, 574. The Sixth Circuit in R.G. &. G.R. Harris Funeral Homes, 884 F.3d at 572, held that 

the EEOC could bring a discrimination claim against an employer under Title VII on the ground 

the employer discriminated against an employee on the basis of “her transgender and 

transitioning status.” 

The United States Supreme Court very recently issued its decision in Bostock, 2020 WL 

3146686, which reviewed a trio of appellate decisions, including R.G. &. G.R. Harris Funeral 

Homes, Inc. The Court affirmed the holdings in R.G. &. G.R. Harris Funeral Homes, Inc. and in

one of the other two cases before it. The Supreme Court held that an employer violates Title VII, 

which makes it unlawful to discriminate against an individual “because of” the individual’s sex, 

by firing an individual for being homosexual or being a transgender person. Bostock, 2020 WL 

3146686, at *3, 18. Accordingly, plaintiff is entitled to bring a claim under Title VII that her 

employer discriminated against her because she is a lesbian as she alleges. 

Defendant contends that even if there is a recognized claim for sexual orientation 

discrimination, plaintiff nonetheless has failed to produce evidence to establish the elements of a 

prima facie case of discrimination under Title VII based on her sexual orientation. (Doc. 46 at 

13). Plaintiff claims that she was subjected to harassment, and her termination was allegedly 

motivated by discrimination, based on her sexual orientation. First, plaintiff alleges that Wedig 

made comments that showed disdain for her sexual orientation. (Doc. 52, ¶ 2(A)). But to be 

actionable under Title VII, workplace conduct must be “so ‘severe or pervasive’ as to ‘alter the 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 22 of 31 PAGEID #: 299
23

conditions of [plaintiff’s] employment and create an abusive working environment.’” See Clark 

County Sch. Dist. v. Breeden, 532 U.S. 268, 270 (2001) (quoting Faragher v. Boca Raton, 524 

U.S. 775, 786 (1998) (quoting in turn Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67

(1986) (some internal quotation marks omitted)). “Workplace conduct is not measured in 

isolation”; instead, “all the circumstances” must be considered in determining “whether an

environment is sufficiently hostile or abusive. . . .” Id. (quoting Faragher, 524 U.S. at 787-88)

(quoting in turn Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)). These circumstances 

include “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.’” Id. at 270-71. “[S]imple teasing, offhand comments, 

and isolated incidents (unless extremely serious) will not amount to discriminatory changes in 

the ‘terms and conditions of employment.’” Id. at 271 (quoting Faragher, 524 U.S. at 788)

(citation and internal quotation marks omitted)). The isolated comments about her sexual 

orientation which plaintiff attributes to Wedig were not “so ‘severe or pervasive’ as to ‘alter the 

conditions of [plaintiff’s] employment and create an abusive working environment.’” Id. at 270. 

Second, plaintiff claims she was discharged based on her sexual orientation. However, 

plaintiff has not provided evidence to satisfy the fourth element of a prima facie case of 

discrimination based on her discharge. Plaintiff alleges she was treated less favorably than Greg 

Jones, the employee whose computer and email she accessed. Plaintiff contends that she and 

Jones were both involved in the computer incident but whereas Jones was formally reprimanded 

for failing to log out of his computer, she was discharged for her conduct. (Doc. 52, ¶ 2(A)). 

For the reasons discussed supra, Jones’s failure to log out of his computer was not comparable to 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 23 of 31 PAGEID #: 300
24

the conduct that led to plaintiff’s termination. See Martinez, 703 F.3d at 917. 

Finally, even if plaintiff were able to establish a prima facie case of discrimination based 

on her sexual orientation, she has not produced any evidence to show that the reason provided by 

defendant for her termination was pretextual and that the true reason was discrimination based on 

her sexual orientation. Accordingly, defendant is entitled to summary judgment on plaintiff’s 

claims of discrimination based on her sexual orientation.

E. Plaintiff’s claims of retaliation

Plaintiff claims that defendant retaliated against her for complaining about discrimination 

based on her race, gender, and sexual orientation. (Doc. 1, Counts I-VI). Plaintiff alleges that 

she “complained about discrimination and harassment [‘on the basis of her sexual orientation, 

and, therefore, her gender’] to members of Defendant’s human resources management” and she 

filed a charge with the Equal Employment Opportunity Commission (EEOC) about her

discriminatory treatment. (Id., ¶¶ 6, 17; Counts I-VI). 

Plaintiff apparently made two complaints to Human Resources about alleged 

discriminatory treatment. Plaintiff first complained about Wedig criticizing her for “petty and 

untrue matters at work.” (Doc. 52 at ¶ 2(A)). Plaintiff alleges that she “verbally complained to 

management” and stated that “she believed that she was being singled out because of her race 

and gender because her peers were not being criticized for petty matters.” (Doc. 52, ¶ 2(A)). 

Plaintiff alleges that she next complained orally and in writing to Human Resources after Wedig 

“voiced his disdain for her sexual orientation” by commenting that “he did ‘not care for that 

lifestyle’ nor did he want to see it ‘in [his] face.’” (Id.). Plaintiff alleges that Sinclair retaliated 

against her when she provided proof of discrimination in the form of video recordings of her coworkers, who allegedly were not criticized for “petty matters,” by placing her on a performance 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 24 of 31 PAGEID #: 301
25

improvement plan for 30 days for violating company policy. (Id.). Plaintiff alleges she was then 

“singled out by management to do painting and manual[] cleaning of ventilation and ceiling 

ducts,” which was not in her job description. (Id.). Plaintiff states that Sinclair “was able to 

resolve the issues when it installed cameras in the Master Control Room. . . .” (Id. at 7). 

Defendant Sinclair moves for summary judgment on plaintiff’s claims for retaliation 

based on her race, gender, and sexual orientation. (Doc. 46). Defendant alleges that plaintiff 

cannot establish a prima facie case of retaliation because she did not engage in protected activity 

related to her race or gender. (Id. at 11). Instead, she complained only about retaliation for 

opposing discrimination based on her sexual orientation, which Sinclair alleges neither the Sixth 

Circuit nor Ohio courts had held to be actionable under Title VII or Ohio law as of the date it

moved for summary judgment. (Id.). Defendant further argues that plaintiff’s discharge is not 

related to any protected activity. Finally, defendant argues that even if plaintiff could establish a 

prima facie case of retaliation based on opposition to race or gender discrimination, she cannot 

rebut the legitimate, non-retaliatory reason Sinclair has offered for her termination. (Id. at 11-

12). 

Title VII prohibits retaliation against an employee because she has opposed any unlawful 

employment practice prohibited under Title VII, or because she has made a charge under Title 

VII. 42 U.S.C. § 2000e-3(a). Ohio Rev. Code § 4112.01(I) makes it illegal for “any person to 

discriminate in any manner against any other person because that person has opposed any 

unlawful discriminatory practice defined in this section. . . .” The same analytic framework 

applies to retaliation claims brought under Title VII and Ohio law. Blackshear v. Interstate 

Brands Corp., 495 F. App’x 613, 617 (6th Cir. 2012). 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 25 of 31 PAGEID #: 302
26

To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged 

in protected activity; (2) the defendant knew about the exercise of her protected rights; (3) the 

defendant took an adverse action (“actions that would dissuade a reasonable worker from making 

or supporting a charge of discrimination”); and (4) a causal connection existed between the 

protected activity and such adverse action. Garner v. Cuyahoga Cnty. Juvenile Court, 554 F.3d 

624, 639 (6th Cir. 2009); Mickey, 516 F.3d at 523 (citations omitted). “[T]he showing required 

for a Title VII retaliation claim ‘is less burdensome than what a plaintiff must demonstrate for a 

Title VII discrimination claim.’” Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 570 (6th Cir. 

2019) (quoting Rogers v. Henry Ford Health System, 897 F.3d 763, 776 (6th Cir. 2018)). A 

plaintiff who claims retaliation under Title VII need only show “that a reasonable employee 

would have found the challenged action materially adverse, which in this context means it well 

might have dissuaded a reasonable worker from making or supporting a charge of 

discrimination.” Id. at 569-70 (quoting Burlington, 548 U.S. at 68) (citations and internal 

quotation marks omitted). Thus, “more frequent disciplinary writeups of plaintiff for trivial 

matters and unwarranted criticism of plaintiff’s work” have been held to be “sufficient, ‘[w]hen 

viewed as a whole,’ to ‘support the jury’s finding that defendants retaliated against plaintiff.’” 

Id. (quoting Moore v. Kuka Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999)). Similarly, being 

subjected to unjustified disciplinary writeups which eventually led to the plaintiff’s termination 

may suffice to support a finding of retaliation. Id. 

To show a causal connection exists between an employee’s protected activity and an 

adverse employment action, the plaintiff must demonstrate that the “desire to retaliate was the 

but-for cause of the challenged employment action.” Henry, 651 F. App’x at 505 (quoting Univ. 

of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339 (2013)). “Although no one factor is 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 26 of 31 PAGEID #: 303
27

dispositive in establishing a causal connection, evidence that defendant treated the plaintiff 

differently from similarly situated employees or that the adverse action was taken shortly after 

the plaintiff’s exercise of protected rights is relevant to causation.” Id. (quoting Nguyen v. City 

of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). 

Opposing conduct that satisfies the first element of a retaliation claim includes 

complaining to management “about allegedly unlawful practices . . . .” Johnson v. University of 

Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000). The plaintiff must have a reasonable, good faith 

belief that the defendant has committed an unlawful employment practice to state a claim for 

retaliation. Yazdian, 793 F.3d at 646. See also Clark County Sch. Dist. v. Breeden, 532 U.S. 

268, 269 (2001). The reasonable, good faith belief requirement has subjective and objective 

components. The subjective component requires that the employee complaining of an alleged 

unlawful employment practice “must ‘actually believe[] that the conduct complained of 

constituted a violation of relevant law.’” Yazdian, 793 F.3d at 646 (quoting Rhinehimer v. U.S. 

Bancorp Invs., Inc., 787 F.3d 797, 811 (6th Cir. 2015)). The objective component requires that 

“‘a reasonable person in the same factual circumstances with the same training and experience as 

the aggrieved employee’ would believe that the conduct complained of was unlawful.” Id. 

Objective reasonableness is decided as a matter of law “only when no reasonable person could 

have believed that the facts known to the employee amounted to a violation or otherwise justified 

the employee’s belief that illegal conduct was occurring.” Id.

Plaintiff has failed to produce evidence of a prima facie case of retaliation. First, there is 

no evidence that plaintiff engaged in protected conduct. Plaintiff has not offered any evidence of 

a “reasonable, good faith” belief that she was treated differently than non-African-American or

male employees because of her race or gender. Plaintiff allegedly complained she was “being 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 27 of 31 PAGEID #: 304
28

singled out because of her race and gender because her peers were not being criticized for petty 

matters.” (Doc. 52 at 2). However, as discussed supra, plaintiff offers no evidence to support 

her complaint that she was treated less favorably than similarly-situated co-workers who engaged 

in comparable conduct. Plaintiff also vaguely alleges that she was “set up” and “treated more 

harshly than her white, male, straight, peers who did not complain about discrimination.” (Id. at 

4). However, she does not explain how she was “set up,” and she has failed to identify the 

“white, male, straight, peers” who allegedly were similarly situated to her. (Id.). Finally, 

plaintiff alleges she complained about Wedig’s comments that showed disdain for her sexual 

orientation. But for the reasons discussed supra, no reasonable person would believe that the 

isolated comments plaintiff attributed to Wedig were “so ‘severe or pervasive’ as to ‘alter the 

conditions of [plaintiff’s] employment and create an abusive working environment.’” Clark 

County Sch. Dist., 532 U.S. at 270. 

In addition, plaintiff has not drawn a causal connection between complaints of 

discrimination and an adverse employment action. To the contrary, plaintiff alleges that Sinclair 

twice rejected her offers to resign, which she made after complaining about being criticized for 

petty matters and after complaining about Wedig’s comments. (Doc. 52 at 2-3). Plaintiff also 

alleges that issues she had complained about were resolved after Sinclair installed cameras in the 

Master Control Room. (Doc. 52 at 7). Plaintiff does not tie her complaints or any other 

protected activity to an adverse employment action, whether it be her placement on a 30-day

performance improvement plan for video recording co-workers while on the clock, which she 

successfully completed; being assigned to manually clean ventilation and ceiling ducts; or her 

termination. For these reasons, defendant is entitled to summary judgment on plaintiff’s 

retaliation claims. 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 28 of 31 PAGEID #: 305
29

F. Plaintiff’s Public Policy Claim

Plaintiff alleges in Count VII of the complaint that her employment termination was 

contrary to Ohio public policy. (Doc. 1). Defendant moves for summary judgment on plaintiff’s 

Ohio public policy tort claim. (Doc. 46 at 14-17). Defendant alleges that plaintiff is not entitled 

to pursue this claim because she cannot establish the first two elements of a claim for wrongful 

termination in violation of Ohio public policy: (1) “a clear public policy that Ohio courts seek to

protect through an exception to Ohio’s employment at-will doctrine,” and (2) that her dismissal 

jeopardizes a clear public policy. (Id. at 14). 

Plaintiff has not addressed her public policy tort claim in response to defendant’s motion 

for summary judgment and shown that there is a genuine issue of material fact on the claim. 

(Doc. 52). Further, defendant is clearly entitled to summary judgment as a matter of law on this 

claim. The elements of the tort of wrongful discharge in violation of Ohio public policy are: (1) 

that a clear public policy existed and was manifested in a state or federal constitution, statute or 

administrative regulation, or in the common law (the clarity element); (2) that dismissing 

employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize 

the public policy (the jeopardy element); (3) the plaintiff’s dismissal was motivated by conduct 

related to the public policy (the causation element); and (4) the employer lacked overriding 

legitimate business justification for the dismissal (the overriding justification element). See v. 

Cleveland Clinic Found., 222 F. Supp. 3d 569, 574 (N.D. Ohio 2016) (citing Leininger v. 

Pioneer Natl. Latex, 875 N.E.2d 36, 39-40 (Ohio 2007)). In order to prove the jeopardy element, 

a plaintiff must show that a clear policy would be compromised absent a common law tort claim. 

Leininger, 875 N.E.2d at 41. 

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 29 of 31 PAGEID #: 306
30

 Ohio Rev. Code Ch. 4112 provides an adequate remedy for race and gender 

discrimination and retaliation, so that a common law wrongful discharge claim for violating the 

public policy established by Chapter 4112 does not exist. Farrell v. Tipp Mach. & Tool, Inc., 

No. 3:02-cv-418, 2005 WL 2372857, at *10 (S.D. Ohio Sept. 26, 2005) (collecting cases). 

Further, assuming Ohio has a clear policy against discrimination and retaliation based on sexual 

orientation, for which Chapter 4112 does not provide a remedy, other elements of a public policy 

tort are not met as to this claim. Plaintiff has not introduced evidence to show that her discharge 

was motivated by her sexual orientation, and there is no evidence that Sinclair lacked “an 

overriding legitimate business justification” for her dismissal. See Cleveland Clinic Found., 222 

F. Supp. 3d at 574. Accordingly, defendant is entitled to summary judgment on plaintiff’s public 

policy claim. 

III. Defendant is entitled to summary judgment

Defendant Sinclair has established that there are no genuine issues of material fact and 

that it is entitled to summary judgment as a matter of law on plaintiff’s claims of discrimination, 

retaliation, and violation of Ohio public policy. The Court should therefore grant defendant’s 

motion and issue summary judgment in defendant’s favor. 

IT IS THEREFORE RECOMMENDED THAT:

 Defendant’s motion for summary judgment under Fed. R. Civ. P. 56 (Doc. 46) be

GRANTED. 

Date: 

 Karen L. Litkovitz 

 United States Magistrate Judge

June 22, 2020

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 30 of 31 PAGEID #: 307
31

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ERICA SHIELDS, Case No. 1:18-cv-593

Plaintiff, Cole, J.

Litkovitz, M.J.

vs.

SINCLAIR MEDIA III, INC. , REPORT AND

Defendant RECOMMENDATION

.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party's objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Case: 1:18-cv-00593-DRC-KLL Doc #: 54 Filed: 06/23/20 Page: 31 of 31 PAGEID #: 308