NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0448n.06 No. 12-3094 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

STEPHEN J . BECKER, Plaintiff-Appellant,

v. EL MWOOD L OCALSCHOOL DI STRI CT, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COUR T FOR THE NORTHERN DI STRI CT OF OHI O

Be fore : KETHL EDGE a nd WHI TE, Circuit J udg es; L UDI NGTON , District J udg e. *

PER CURI AM. Stephen J

. Be cker , an Ohio citizen, appea ls through counsel the summary judgme nt for Def

en d an t E l m wo od L ocal School District, his former employ er, in a case he filed pursuant to Title VI I of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq .; the Americ ans with Disabilities Act (ADA ), 42 U.S.C. § 12101 et seq .; and Ohio law. Be cker wa s employ ed by Def endant as a fourth-g rade teac her from 2001 to 2009. He acknow ledg es suffe ring from obsessi v e c o mp u ls ive disorder and anxiety

. He repor ted his conditions to his building’s new principal, Michelle Tuite, in 2006, althoug h he stated that they did not aff ect his perfor mance and re quired no a ccommodation.

The Honora

ble Thomas L

. L udington, United States District J udg e for the Easter n District * of Michig an, sitting by

desig nation.No. 12-3094

Bec ker v . Elmwood Local Sch. Dist

. I n May 2007, during Be cker ’s lunch period, Tuite called Be cker into her office to repr imand him for y elling at stude n t s in the hallway

. Tuite testified at her deposition that Be cker beca me ag itated and repe atedly asked to leave her office

. When Be cker left the meeting , Tuite followed him and observe d that “he was no longe r in a rational state of mind.” Be cker conce des that he left school mid-day , but asser

ts that he “followed protocol” by asking another teac her to serve as a substitut e for his class. Be cker testified that he felt that he had to leave school afte r the repr imand beca use his anxiety “g ot hig h” and “ther e was no way [he] could function for the rema inder of the day .” Tuite repor ted the incident to Steve Pritts, Elmwood’s Superintendent, who order ed an informal lockdown of the school, disabled Be cker ’s elec tronic swipe acc ess car d, and asked that the police be dispatched to Be cker ’s house to che ck on his well being

. Also near the end of the 2006-2007 school y ear , the school’s a dminist ration re ceive d an email from a school employ ee and mother of a former student repor ting that Be cker had been calling her son, now a colleg e student, repe atedly

. The school investigated the matter and deter mined that nothing inappropria

te had occur

red while the boy was a student at Elmwood. Be cker cea sed communi ca t i o n with him. Howeve r, Be cker was place d on paid administrative leave for the

rema inder of the y ear while an investigat i o n was pending

. That summer, Be cker filed disability discriminatio n ch ar ges with the Equal Employ ment Opportunity Commi ssion (EEOC) and Ohio Civil Rights Commiss ion. Def endant decide d to rehire Be cker for the next school y ear . Be cker re ceived mix ed p er formance revie ws during the 2007-2008 y ear , and the school offe red him another one- y ea r contra ct. His first perf

ormanc e re view of the 2008-2009 school y ear was positive, but the second,

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Bec ker v . Elmwood Local Sch. Dist

. conducte d in Fe bruar

y 2009, was fa r m o re neg ative than any he had previously rec eived. Be cker points out that he was revie wed shortly afte r a fourth-g rade r had died, when both he and his students

wer e in a g rieving period. Tuite conducte d three more revie ws of Be cker ’s classroom perf ormanc e. Two wer e positive and one neg ative. Be cker contends that the one neg ative revie w occur red beca use he was attempting to teac h reme dial math, a subject he had not taug ht all y ear beca use his specia lty

was social studies. On Marc h 31, 2009, Tuite informed Be cker that she would not rec ommend that he be rehire d for the next school y ear , when the school would have been required to offe r him perma nent employ

ment due to his leng th of servic e. B ecke r attempted to g rieve this de cision, but he ultimately submitt ed a letter of resig nation on April 20, 2009, afte r being informed that if he did not resig n the school board would not rene w his con t rac t at its meeting later that day

. Be cker believed that non-re newa l of hi s contra ct would g reatly reduc e any chanc e of obtaining a position at another school. After filing a discrimination complaint with the EEOC, Be cker filed this lawsuit alleg ing that Def endant had discriminated ag ainst him based on his sex, a perc eived disability , and in reta liation for his previous EEOC filings. After conducting discovery , Defen d an t moved for summary judgme nt, and Be cker responde d. The district court g rante d Def endant’ s motion. Be cker rea sserts

eac h of his claims on appe al. We r eview de novo the awa rd of summary

judgme nt. W

atkins v. City of Battle Creek , 273 F.3d 682, 685 (6th Cir. 2001). I n this case , beca use Be cker has no direc t evidenc e of discrimination, he must establish a prima fac ie case of discrimination throug h indirect ev i dence , afte r which Def endant is r equire d to proff er a leg itimate, non-discriminatory rea son for his termination, which

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Bec ker v . Elmwood Local Sch. Dist

. Be cker then has the burden of showing was a prete x t for discrimination. See W hitfield v. Tenn ., 639 F.3d 253, 259 ( 6th Cir. 2001). I n order t o establish a prima fac ie case of reve rse sex discrimination, Be cker was required to show that Def

endant is the unusual employ er who discriminates ag ainst men, that he was qualified for his teac hing position, that Def endant took an adver se action ag ainst him, and that he was trea ted differ ently from simil arly situated women. See Simpson v. Vanderbilt Univ ., 359 F. App’x 562, 568- 69 (6th C i r. 2 0 0 9 ); A r endale v. C ity of Mem phis , 519 F.3d 587, 603-04 (6th Cir. 2008). Her e we only need to c onsider whe ther B ecke r wa s trea ted differ ently from simil arly situated women. The d is tr ic t court found that althoug h Be cker arg ued that his fema le co-w orker s rec eived p o o r e v a lu a ti o n s and still had their contra cts rene wed, none of these co-w orker s had been acc used of hara ssing former students with telephone calls, or had rea cted to criticism so strang ely that they wer e locked out of the building and place d on administrative leave

. Be cker arg ues that the district court employ ed the simil arly -situated portion of the prima fac ie case too narr owly , citing Martin v. Toledo Cardiology Consultant

s, Inc ., 548 F.3d 405, 412 (6th Cir. 2008)

. Howeve r, we conclude that the district court

was corr ect in its analy sis and that Be cker , there fore , failed to establish a prima fac ie case of reve rse sex di scrimination. I n order to establish a prima fac ie case of reta liation, Be cker was requ i re d t o show that he eng ag ed in protec ted activity that was known to Def endant, an adver se action was taken ag ainst him, and ther e wa s a ca

usal conne ction betwee n the activity and the a dverse action. See A rendale , 519 F.3d a t 606. The district c ourt found that Be cker had not established a causa l connec tion between the EEOC char g es filed in 2007 and the rec ommendation not to renewBe cker ’s contra ct in 2009. -4-No. 12-3094

Bec ker v . Elmwood Local Sch. Dist

. We a g ree . Be cker was g iven one-y ear rene wals for the school y ear s ending in 2008 and 2009. He has not e stablished any causa l c onnection betwee n his protec ted activity and Def endant’ s decision two y ear s later. We ther efor e ag ree that Be cker did not establish a prima fa cie c ase of reta liation. I n order to e stablish a prima fac ie case of disability discrimination, B ecke r was re quired to show that he was disabled or reg arde d by his employ er as disabled, he was qualified for his position,

an adver se action was taken aga i n s t h im, Def endant knew of his disability , and he was repla ced. W hitfield , 639 F.3d at 259. The district court found that Be cker had not established that an adver se action was taken ag ainst him, beca use he submitt ed a letter of resig nation. Howeve r, in this circ uit,

we have found a constructive discharg e wher e a re s i gn i n g employ ee rea sonably believed his termination was imminent, or wher e he was g iven the option of retiring or being laid off. See Ford

v. Gen. Motors Corp ., 305 F.3d 545, 554 (6th Cir. 2002); Scott v. Goodye ar Tire & Rubber Co ., 160 F.3d 1121, 1128 ( 6th Cir. 1998). Here , Pritts t estified that he told the union r epre sentative that he neede d Be cker ’s resig nation letter by 3 p.m. on April 20, 2009, or he would be terminated. Multipl e witnesses ag ree d that if his contra ct was no t rene wed, Be cker would have difficulty obtaining a position at another school. Be cker ’s circumstances go bey ond those ca ses cited a bove, in that t he threa t was not just to his curr ent job, but to his car eer . We there fore find that Be cker established an adver se ac tion in the form of a c onstructive discha rg e. The burden there fore shifts to Def endant to offe r a leg itimate, nondiscriminatory rea son for its decision. Her e, Def

endant arg

ues that it decide d ag ainst rene wing Be cker ’s contra ct beca use he

was a substandard teac her. I n support, the defe ndant points to four problems that Be cker had from 2007 to 2009: the hara ssing phone calls that B ecke r m ade to a for mer student, the incide nt where -5-No. 12-3094

Bec ker v . Elmwood Local Sch. Dist

. Be cker left the school afte r the principal criticized him, his mix ed perf ormance reviews, and his resistenc e to sug g estions for improvement. Given this problematic history , the defe ndant declined to rene w Be cker ’s contra ct. “Poor perf ormanc e is a leg itimate non-discriminator y rea son for t erminating an employ ee.” Stockman v. Oakc rest Dental Ctr., P.C. , 480 F.3d 791, 80 2 (6 t h C i r. 2007) (c itation omit ted). When an employ er offe rs nondiscriminatory rea sons for an adver se employ ment action, the burden shifts back to the employ ee to prove that the stated rea son for the termination is prete x tual. See Blizzard v. Marion Technical College , 698 F.3d 275, 284 (6th Cir. 2012). Thus, Be cker has the burden to produce sufficie nt evidenc e from which a jury could rea sonably reje ct Elmwood’s explanation of why it constructively discharg ed him. Id. (citing Chen v. Dow Chem. Co. , 580 F.3d 394, 400 (6th Cir. 2009) (interna l quotation marks and bra ckets re moved)). As to pr etext, B ecke r makes three arg uments. First, he points to Def endant’ s decision to “depa rtm e n ta liz e” the fourth g rade for the 2008–2009 school y ear , which resulted in Be cker teac hing

one subject (social studies) rathe r than mu l t i ple subjects. Be cker ’s burden is to establish that Def endant’ s proffered rea son is prete x tual. Def endant did not identify its decision to depar tmentalize the fourth g rade as part of its leg itimate, nondiscriminatory rea son for not rene wing Be cker ’s contra ct. Be cker contends that, at the time, Def endant st at ed t h at it neede d to depar tmentalize the fourth g rade beca use new teac hers wer e only cer tified to teac h two subjects, but that Def endant later claimed that it made that decision “[s] o that Mr. Be cker ’s less-than-satisfactory techniques and tones would aff ect few er students and play to his streng th[ .]” Be cker notes that the fourth g rade rema ined depar tmentalized afte r his resig nation, underminin g Defendant’s later

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Bec ker v . Elmwood Local Sch. Dist

. explanation. Assuming that Def endant’ s explanatio n fo r depar tmentalizi ng chang ed from benig n to maligning Be cker ’s tea ching ability , the fac t rema ins that Be cker failed to provide sufficie nt evidenc e of pr etext with respect to Def endant’ s proffe red r easons f or not rene wing his contrac t. Second, Bec ker arg ues that his perf ormanc e re views ar e evide nce of prete x t. He contends that Def endant set him up for neg ativ e ev al u at i o n s by observing him at inopportune times. For example, one of Be cker ’s evalua tions occur red one wee k afte r a fourth-g rade student had died, and another occur

red when Be cker was teac hing math, a subject he had not taug ht all y ear . Be cker also contends that his other evalua tions show “a continuing pattern of improvement.” But these revie ws

are not as positive as Be cker asser ts. Be cker ’s evalua tion in October 2007 was fairly poor, and his revie ws in Fe bruar

y 2008 and November 2008 both included criticisms. Even if we discount the two revie ws that Be cker contends wer e set-ups, the evalua tions are still mix ed at best. And they are

cer tainly not positive enoug h to era se Be cker ’s troubled history at the school. So these revie ws do not demonstrate that the r eason f or De fenda

nt’s decision to not rehire Be cker was pre text ual. Finally , Be cker arg ues that Def endant “neve r made it c o mp le te ly c lear ” that the problems that

occur red in the spring of 2007 wer e part of its leg itimate, nondiscriminatory rea son for not rene wing his contra ct. Thus, he say s, we should not consider them. But Def endant specific ally relied on those problems and conce rns about Be c k e r ’ s p r o f e s s iona lism in both its motion for summary judgme nt and its brief her e. So this arg ument is meritless. The district cour

t’s judgme nt is affirmed.

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