NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0427n.06 No. 09-3924 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

LAUREN JUSTINE PALM ER, P laintif f-App ellant,

v. REBECCA CACIOP P O, et al., Defendan ts-Appellees. ) ) ) ) ) ) ) ) ) ON AP PEAL F ROM THE UNITED STA T ES DISTRICT COURT F OR THE NORTHERN DISTRICT O F OHIO

Before: SILER, CLAY, and GIBBONS, Circuit Judges. JULIA SMITH GIBBONS, Ci rc u i t Judge. Petitioner L aure n Palmer appea ls a district

court order g ranting summary judgme nt to responde nts Rebec ca Cacioppo, Kathy Hooper , and the Akron Boa

rd of Educa tion (the “B oard” ). She contends that the district court err ed in g ranti ng summary judgme nt on the following claims: (1) denial of her rig ht to medical leave under the Family and Medical L eave Act (“FML A”) , 29 U.S.C. § 2601 et s eq. ; (2) unreasona ble s ear ch and seizure in violation of the Fourth Ame ndment, pursuant to 42 U.S.C. § 1983; and ( 3) quid pro quo sexual hara ssment in violation of Title VI I of the Civil Rights Act of 1964, as amende d, 42 U.S.C. § 2000e et seq. For

the re asons that follow, we aff irm the district court.
I

. Petitioner L aure n Palmer is a former employ ee of the Boa rd, wher e she worke d for thirteen
y ear s, primarily as a secr etar y at Glover Elementar

y School (“G lover” ), until her termination on

-1-No. 09-3924

Palmer v. Cac ioppo Dec ember 12, 2006. Respondents Cacioppo and Hoo per wer e likewise employ ed by the public school sy stem, with Cacioppo serving as Glover’ s principal and Hooper working as the coordina tor of support staff for the Boa rd. Palmer repor

ted to G lover in mid-A ug ust 2006, approximately two

wee ks befor e the start of the school y ear , when she and Cacioppo wer e the only employ ees require d

to be on the school premises. The e vents g iving r ise to this li tiga tion stem, in part, from Palmer’s interac tions with C acioppo in the we eks bef ore sc hool beg an. On one occa sion during this time period, Cacioppo invited Palmer to join her at Strickland’s,

a local ice cre am shop. Although the ensuing circ ums t an ce s ar e disputed by the parties, Palmer claims that Cacioppo re quested that they sit in a seclude d are a and ma de sexual advanc es towar ds Palmer, including licking an ice cre am cone in a sexually expli cit manner and sug g esting that they
eng ag e in sexual acts. After reje cting Cacioppo’s advanc es, Palmer alleg es that she was repe atedly hara ssed by Cacioppo, who denig rate d her work performanc e in emails to other pe ople, including Hooper , and preve nted her from timely completing kinderg arte n student enrollment. Palmer did not file an officia l complaint with the Akron School District conce rning the alleg ed sexual hara ssment by Cacioppo, nor did she immediately repor t the incident to any one. Palmer estimates, howeve r, that she later informed sever al people of the hara ssment some time in September, including her g ener al
prac titioner, Dr. Ann DiFr ang ia; her attorney ; her union repr esenta tive; and Dr. Connie Hathorn, the
E x ec u t ive Direc tor of Human Resource s for Akron Public Schools. Neither Palmer nor Hathorn pursued the ma tter. 1

Palmer attributes her failure t o fi l e a fo rmal hara ssment complaint in this matter to her 1 distrust of the Boa

rd, wh o d i d not pursue Palmer’s sexual hara ssment claim in a prior, unrela ted -2-No. 09-3924

Palmer v. Cac ioppo Shortly there afte r, Palmer missed nume rous day s of work; she was absent from September 1 to November

10, 2006. The pa

rties contest whe ther some of these absence s wer e authoriz ed, in particula r Palmer’s trip to Jamaica from September 5–8. When Palmer failed to r eport to w ork on September 5, Cacioppo soug ht the assistance of Sharon Null, who also worke d as a secr etar y for the public schools, to aid with student enrollment at Glover. Null repor ted to Hooper that “no one ha[d] been enrolled” in Glover’s e nrollment sy stem and that “a ttendance ha[d] not be en enter ed thus f ar this school y ear ,” appa

rently imply ing tha t Palmer had ne g lected he r job duties. Thoug h the exact dates are not c lear from the rec ord, the re spondents lear ned at some time around the start of the school y ear that Palmer had pled g uilty in municipal court on Aug ust 9, 2006,
to misdemeanor possession of marijuana and, in addition to being subject to a fine and a suspended driver’ s license, was require d t o write an essay conce rning the dang ers of marijuana

. The

re s p o n d ents further lear

ned that a bench war

rant had issued for Palmer on Aug ust 26, 2006, fo r failure to timely complete the essay ; this war rant was later rec alled when Palmer submitt ed her essay within an extended d ea d l i n e o f September 11, 2006. Hooper contends that, sometime betwee n Aug ust 26 and September 11, Palmer falsely told both Hooper and Hathorn that she had satisfied her

sentenc e whe n, in fac t, she had not. On September 22, 2006, the Boa rd held a due proce ss h earing , as require d by Cleveland Board of Education v. Loudermill , to addre ss Palmer’s co n t inued absenc e from work, her

matter. I n the prior incident, in w hich an unidentified male caller left a me ssag e on her husband’s work phone claiming to ha ve eng ag ed in se x ual activity with Palmer, the B oard de termined that it could not positively identify the caller. Although the Boa rd informe d Palmer that she c ould file a repor t with the local police de partment, she did not do so. -3-No. 09-3924

Palmer v. Cac ioppo unapprove d absenc es on September 5–8, the misdemeanor drug conviction, and Palmer’s re l at ed misrepre sentations to Hooper and Hathorn conce rning the satisfac tion o f h e r sentenc e. 470 U.S. 532, 546 (1985) (providing public employ ees a constitutional rig ht to pre- termination due proce ss). Both Hooper and Hathorn attended the Loudermill hear ing, as did Palmer and her union repr esenta tives. At the hear ing, the Boa

rd char acte rized Palmer’s conduct as a violation of the employ ee attendanc e policy ; insubordination by virtue of making false statements to administrators; and, with reg ard to the misdemeanor conviction, conduct unbecoming an employ ee of the Boa rd. The p ar t i es then

enter ed into a “last chance ag ree ment” in which Palmer ag ree d to: (1) take an unpaid absenc e for Sept em b er 8, 2006, in lieu of a one-da y suspension without pay ; (2) provide updated phy sician’s

statements to H ooper reg arding her absenc es starting on September 18; ( 3) submit to random drug testing for one y ear ; (4) participa te in drug counseling at Tri-County Employ ee Assistance Prog ram (“EA P”); and (5) be rea ssigne d to another school pursuant to her reque st. On September 26, Palmer

rec eived a letter memorializing the terms of the “last chanc e ag ree ment” and direc ting her to respond if she did “not ag ree with the statements made in [t he] confe renc e summary letter.” Palmer neither responde d to the letter nor informed th e Bo ar d t h at the suspension of her driver’ s license would
preve nt her fr om attending drug counseling or appe aring for r andom drug testing. On October 13, Palmer enter ed Glover with the stated purpose of attending a PTA meeting , 2

at which time a confr ontation betwee n Palmer and Cacioppo ensued. The parties dispute the nature

The Boa rd states that, as discussed at her Loudermill hear ing, Palmer was n o longe r 2 permitted to enter Glover. Palmer disputes this interpre tation, and we find no evidenc e in the rec ord supporting suc h a prohibition. -4-No. 09-3924

Palmer v. Cac ioppo of this confronta tion; P almer a lleg es that Cacioppo took he r into Cacioppo’s offic e, pre vented he r from leaving , and threa tened her with undisclosed conseque nces if she pursued a sexual hara ssment claim. Cacioppo states that she instructed Palmer to leave the premises and that Palmer ref used to do so, instead retre ating to a differ ent part of the building. Both versions appar ently involved y elling and foul lang uag e. The rea fter, building secur ity was c ontacted, a

nd Palmer’s c ar w as towed. Following Palmer’s re a s s ig n me n t to a n e w s c h o o l, Hooper informed her that she was require d

to submit to drug testing on a date of her choosing befor e returning to work. Palmer selec ted November 10, 2006; submitt ed to testing on this date; and repor ted t o work on November 13, but missed a schedule d drug counseling session at Tri-County EAP. On November 16, Hooper rec eived

a call from the Communi ty Hea lth Center stating th at Palmer had tested positive for opiates and marijuana ; she then sent a letter to Palmer apprising her that a second Loudermill hear ing would be

convene d on November 30 to discuss Palmer’s d ru g t est and rela ted substance abuse, insubordination, and contra ct violations. Although her union repr esenta tives wer e prese nt, Palmer d i d not attend the second Loudermill hear ing. At a meeting on Dec ember 12, the Board acce pted the rec ommendation of Hooper and Hathorn to terminate Palmer’s employ ment eff ective Dec ember 12, 2006.
I I

. We revie w de no vo a district court’s g rant of summary judgme nt. Hamilton v. Starcom Mediav est Group, Inc. , 522 F.3d 623, 627 (6th Cir. 2008). “Summary judgme nt is proper wher e no g enuine issue of materia l fac t exis ts and the moving party is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56(c)

. The moving party bear s the initial burden of production. C el o t ex Corp. v. -5-No. 09-3924

Palmer v. Cac ioppo Catrett , 477 U.S. 317, 323 (1986). “Af ter the moving party has met its burden, the burden shifts to the nonm oving party , who must present some ‘specific fac ts showing that there is a genuine issue for trial.’” Jakubowski v. Christ Hosp., Inc. , 627 F.3d 195, 200 (6th Cir. 2010) (quoting Anderson

v. Liberty Lob b

y, Inc. , 477 U.S. 242, 248 (1986))

. “[I ]f the nonmoving party fails to make a sufficie nt showing on an essential element of the case with respe ct to which the nonmovant has the burden, the moving party is e ntitled to summary judgme nt as a matter of law.” Thompson v. Ashe , 250 F.3d 399, 405 ( 6th Cir. 2001).
I n evalua ting a motion for summary judgme nt, the district court must construe all rea sonable infer en ces in favor of the nonmoving party

. Hamilton , 522 F.3d at 627 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 58 7 (1 9 8 6)). The centr al issue is “whe ther the evidenc e prese nts a sufficie nt disa g ree ment to r equire submissi on to a jury or whether it is so onesided that one pa

rty must prevail as a

matter of la

w.” Anderson , 477 U.S. at 251–52. A. Palmer claims that Hooper unlawfully interfe red with her rig hts under the FML A, 29 U.S.C. § 2601 et seq. , by

authorizing he r medica l le ave and subsequently rec ommending her termination, in part for “excessive absente eism,” based upon these absenc es. The district court g rante d summary judgme nt to the responde nts on the g rounds that there was no evidenc e in the rec ord that Palmer was denied FML A- q u al i fi ed leave and that Palmer’s termination did not stem from any approve d absenc es, but rathe r wa s due to her r epeated fa ilure to submit ti mely absenc e for

ms. W e ag ree . T h e FM L A entitles elig ible employ ees to twelve wee ks of unpaid leave within a tw el v emonth period when, among other qualify ing rea sons, th e employ ee suffe rs from “a serious health -6-No. 09-3924

Palmer v. Cac ioppo condit ion that makes the employ ee unable to perf orm the functions of the position.” 29 U.S.C. § 2612(a) (1)( D); see also 29 U.S.C. § 2611(11) (def ining a “ser ious health condition” as “an illness, injury , impairment, or phy sical or mental condition” that require s either inpatient car e or “continuing

trea tment by a health car e provider” ). Enac ted to enhanc e job secur ity for employ ees suffe ring from serious health conditions, the FML A “re nders it ‘unlawf ul for any em p l o y er to interfe re with,

restra in, or deny the exercise of or the attempt to exercise any rig ht’ that it aff ords.” Brennem an v. MedCentral Health Sys. , 366 F.3d 412, 422 (6th Cir. 2004) (quoting 29 U.S.C. § 2615(a) (1)) ; see also 29 U.S.C. § 2601(b). The implementing re gulations further prohibit “an employ er from discriminating or reta liating ag ainst an employ ee . . . for having exercised or attempted to e x erc ise
FML A rig hts.” 29 C.F.R. § 825.220(c)

. I n particula r, “employ ers cannot use the taking of FML A leave as a neg ative fac tor in employ ment actions, such as . . . disciplinary actions.” Id. “Employ ers who violate § 2615 are ‘liable to any elig ible employ ee aff ecte d’ for damag es and ‘for such equitable relief as may be appropr iate.’” Cavin v. Honda of Am. Mfg., Inc. , 346 F.3d 713, 719 (6th Cir. 2003) (quoting 29 U.S.C. § 2617(a)(1) ). To preva il on a claim alleg ing unlawful interfe renc e with FML A rig hts, the employ ee must establish that “(1) [s] he is an ‘[e]l igible employ ee,’ 29 U.S.C. § 261 1 (2); (2) the defe ndant is an ‘[e]m ploy er,’ 29 U.S.C. § 2611(4); (3) [she] was en t i t l ed to leave under the FML A, 29 U.S.C. § 2612(a) (i); (4) [she] g ave the employ er notice of [her] intention to take leave , 29 U.S.C. § 2612(e) (1); and (5) the employ er denied [her] FML A benef its to which s[he] was entitled.” Cavin , 346 F.3d at 719. I f leave is fore seea ble, “[a]n employ ee must provide the employ er at least 30 day s advanc e notice befor e FML A leave is to beg in.” 29 C

. F. R

. § 825.302(a)

. When leave is not -7-No. 09-3924

Palmer v. Cac ioppo fore seea ble, “an employ ee must provide notice to the employ er as soon as practicable ” and “must comply with the employ er’ s usual and customary notice and proce dural require ments for reque sting leave , absent unusual circ umstances.” 29 C.F.R. § 825.303(a) , (c)

. I f, howeve r, no unusual circ umstances obtain, and the employ ee has not complied with the employ er’ s customary proce dures for reque sting leave , “F ML A-prote cted leave may be delay ed or denied.” 29 C.F.R. § 825.303(c)

. Her e, P almer has not alleg ed that any unusual circ umstances hampere d her ability to comply with the B oard’ s customary

leave proce dures. Ba sed upon these require ments, Palmer has not s t at ed a colora ble claim for unlawful interfe renc e with her FML A rig hts. Aside from the conclusory asser tions in her absenc e forms and deposition testimony

that she wa s “ill” or wa s “having medical pr oblems,” the re cord is devoid of

e v id e n c e d e mo n s tr a

ti n g that Palmer suffe red from a serious health condition, a threshold re q u ir e me n t under the FML A. Palmer does not press thi s p o i n t o n appeal. Rather, she arg ues that “Hoope r signe d and approve d eac h of the day s as valid medical leave .” This arg ument, howeve r, ignor es the fac t that not all “appr oved” medical leave is FML A-qua lifi ed leave ; pursuant to 29 U.S.C. § 2612(a) (1)( D), an elig ible employ ee seeki n g FML A leave must suffe r from “a serious health condition that makes the employ ee unable to perf orm the functions of [her job] .” Although Palmer disputes her termination for “author ized medical leave ,” she does not alleg e on appea l t h at s he suffe red from a serious health condition a nd, acc ording ly , has failed to de monstrate entitlement to
FML A leave

. Nor has Palmer demonstrated that the Boa rd denied any FML A benef it that she was owed.
I ndeed, the rec ord ref

lects that Palmer rec eived compensa tion and benef its for her medical absenc es, -8-No. 09-3924

Palmer v. Cac ioppo notwithstanding her untimely absenc e forms. I nstead, Palmer arg ues t h at Hooper approve d her various absenc es and t h en rec ommended her termination for excessive absente eism, there by interfe ring with her exercise of FML A rig hts. This contention is without merit. As ref lected in her discharg e letter on Dec ember 12, 2006, Palmer was terminated for a varie ty of infrac tions, including excessive absente eism or tardiness, absenc e without leave , misconduct toward other city employ ees, insubordination, and conduct unbecoming a public employ ee. I n her deposition, Hooper explained that the cha

rg e of e x cessive a

bsentee ism pertained to Palmer’ s repe ated failure to file her absenc e forms in a timely manner and to her unauthorized absenc e on September 5 and that P al m er ’s termination was not based upon her medical absenc es. The termination letter likewise supports this interpre tation; it states that “Mrs. Palmer was absent from September 1 throug h November 10, 2006 and did not file absenc e forms in a timely manner .” I n sum, Palmer has not de monstrated that she was unlawfully denied any FML A benefits, n o r h as s h e shown that she was terminated for t aking medical leave

. Acc ording ly , we aff irm the district court’s g rant of summary judgme nt with respe ct to Palmer’s F ML A claim. B. Palmer next arg

ues under 4 2 U.S.C. § 1983 that Hooper violated her Four th Amendment rig hts ag ainst unrea sonable sear ch and seizure by demanding that she submit to drug testing as a condition of continued employ ment. The district court granted summary judgme nt to the responde nts on the g rounds that Palmer voluntarily enter ed into the “last chanc e a g r e e me nt” in which she agr ee d t o u n d ergo random drug testing for one y ear . I t further noted that, g iven Palmer’s conviction for misdemeanor marij u an a possession, the drug testing require ment serve d as a -9-No. 09-3924

Palmer v. Cac ioppo

rea sonable mecha

nism for enfor cing the Boa rd’s policy prohibiting substance abuse by s chool employ ees w hile at work. The Four th Amendment safe g uards the privac y of individuals ag ainst unwar rant ed
g overnme ntal intrusions by providing , in pertinent part, that “the rig ht of the people to be secur e in their persons, houses, pa

pers, a nd eff ects, a g ainst unrea sonable sea rche s and seizures, shall not be violated.” U.S. Const. amend. I V. “I n assessing whether the rig ht ag ainst unrea sonable sear ches and seizures has been violated, the court m u s t consi der whether the action is ‘attributable to the
g overnme nt,’ and amounts to a ‘sea rch’ or ‘seizure’ for Four

th A mendment purposes.” Relford v. Lexington-Faye tte Urban Cnty. Gov’ t , 390 F. 3 d 452, 457 (6th Cir. 2004) (quoting Skinner v. Ry. Labor Exe c. Ass’n , 489 U. S

. 6 0 2 , 6 14 (1989))

. Her e, the drug test at issue is undisputedly attributable to the g overnme nt, as it was order ed by th e Bo ar d p u rs uant to Palmer’s “last chanc e ag ree ment.”
I t “is now well-settled that drug testing which utiliz es urinaly sis is a ‘sea rch’ that falls within the ambit of the Four

th Amendment.” Knox Cnty. Educ. Ass’n v. Knox Cnty. Bd. of Educ. , 158 F.3d 361, 371 (6th Cir. 1998); see also Int’l Union v. W inters , 385 F.3d 1003, 1007 (6th Cir. 2004) (noting that “[i] t is bey ond dispute that g overnme nt order ed collection and testing of urine samples eff ects a sear ch within the meaning of the Four th Amendment as such tests intrude upon rea sonable expectations of privac y that society h as l o n g re cognized as rea sonable” ). Be cause drug testing constitutes a sear ch under the Four th Amendment, “we must there fore revie w the [Board’ s] policy for rea sonablene ss, ‘which is the touchstone of the constitutionali t y o f a g overnme nt sear ch.’” W inters , 385 F.3d at 1007 (quoting Bd. of Educ. v. Earls , 536 U.S. 822, 828 (2002))

. To deter mine -10-No. 09-3924

Palmer v. Cac ioppo whether the drug testing require ment contained in the “last chanc e ag ree ment” was rea sonable, we balanc e the public interest in this testing ag ainst Palmer’s privac y expectations. Knox Cnty. Educ. Ass’n , 158 F.3d at 373; see also Chandler v. Miller , 520 U.S. 305, 314 (1997); Nat’l Treasury Emp. Union v. Von Raab , 489 U.S. 656, 665–66 (1989). Palmer contends that, despite agr eeing to submit to ran d o m d ru g testing for one y ear , her

consent was in fac t “the product of coer cion,” appar ently beca use she would have been terminated if she ref used the conditions of employ m en t co n t empl ated by the “last chanc e ag ree ment.” This
arg ument is without merit. I ndeed, we have upheld policies permitting both suspicion-l es s and suspicion-based drug testing of employ ees who work in the highly -re g ulated field of public school employ ment, irrespe ctive of consent. I n Knox County Education Association , t h is circ uit had

occa sion to evalua te the constitutionalit y of the Knox County Boa rd of Educa

tion’s suspicion- less and suspicion-based drug testing policies of school employ ees ag ainst a fac ial Four th A mendment challenge

. 158 F.3d at 384–85. We observe d that employ ee consent t o the t esting policy at i ssue

was not require d; rathe r, “the privac y interest for the employ ees not to be tested [was] signific antly diminis hed by the level of reg ulation of their jobs and by the nature of the work itself.” Id. at 384. As to the constitutionalit y of suspicion-based testing, we conclude d that the policy comported with the Four th Amendment’s rea sonablene ss require ment beca use it was “cle arly based upon a finding of individualiz ed suspicion.” Id. at 385. Knox County Ed

u ca t i o n Association is controlling here , and this case prese nts an even strong er case for finding no Four th Amendment violation. The Boa rd’s one-y ear random drug testing requirem en t was rea sonable, particula rly in light of Palmer’s conviction for misdemeanor -11-No. 09-3924

Palmer v. Cac ioppo marijuana possession. The rec ord ref lects that the Boa

rd enac ted various administrative reg ulations restric ting substance abuse among school employ ees while on duty

. The drug -fr ee workplac e policy

states that “[a]ll employ ees as a condition of employ ment are require d to abide by the Boa rd policy

. . . rela ted to a drug -fr ee workplac e and to submit to the substance abuse preve ntio n an d t esting
prog ram.” The Boar d’s s ubstance abuse policy further provides that “[b] eing un d er t he influence of

. . . drug s while on duty , on school proper ty , or at a school rela ted activity /event is not

acc eptable

. ” Moreove r, “re porting to work under the influence of

. . . drug s . . . will result in
appropr iate corr ective or di sciplinary action as deter mined by the Boa

rd, up to and including termination.” Finally , althoug h it offe red an employ ee assistance prog ram, the Boa rd stated that it “ca nnot g uara

ntee that the staff member’ s use of illega l drug s . . . will not adver sely impact the staff member’ s employ

ment status throug h disciplinary measure s.” Given Palmer’s m ar ijuana conviction, the Boa rd’s conce rn that she might repor t to work under the influence was well-founde d. See, e.g. , K n o x Cnty. Educ. Ass’n , 158 F.3d at 384–85 (upholding a suspicion-based drug testing poli cy t h at, in pertinent part, permitted drug testing of school employ ees who violated “cr iminal drug law statutes involving the use of illega l drug s” beca use “the testing is clea

rly based upon a finding of individualiz ed susp i ci on”). And, like the employ ees in Knox County Education Ass o ci a t i o n , Palmer’s privac y interest was signific antly diminis hed by the nature of her job. Id. at 384. Moreove r, her consent to the ag ree ment also serve d to reduc e her

privac y interest fur

ther. See Norris v. Premier Integrity Solutions, Inc. , — F.3d —, 3

I n her brief, Palmer arg ues that her consent wa s involuntary

beca use it wa s obtained upon 3 threa t of termination or, in the alterna tive, that she withdrew consent by “re fusing ” to submit to the -12-No. 09-3924

Palmer v. Cac ioppo No. 09-6252, 2011 WL 1261188, at *2 (6th Cir. 2011) (noting that def en d an t ’s ex pecta

tions of privac y we re d i minished by his consent “to random drug testing as a condition of his pretria l rele ase” ). Ba lancing the public interest in Palmer’s drug testing ag ainst her expectation of privac y , and construing all rea sonable infere nces in Palmer’s favor , we conclude that the one-y ear random drug testing require ment serve d as a rea sonable means of ensuring her compliance with the Boa rd’s drug

fre e workplac e policy and did not violate her Four th Amendment rig hts. Acc ording ly , we aff irm the district court’s g rant of summar y judgme nt. C.
I n her final claim, Palmer arg ues that her ref usal to c onsent to Ca cioppo’s sexual a dvance s resulted in Cacioppo’s “hound[ing] her on a daily bases [si c] about her work” and eventua lly cause d her termination. The district court g rante d s ummary judgme nt to the responde nts, finding “absolutely no evidenc e of a connec tion between the alleg ed hara ssment and [P almer’ s] termination,” a

nd we a g ree .

drug testing. The rec ord, howeve r, does not support these arg uments. I n her deposition, when asked whether she had ag ree d to submit to random drug testing for one y ear at the September 22 hear ing, Palmer repea tedly answe red, “y es.” By corr espondenc e dated September 26, the Board reitera ted the terms of the “last chanc e ag ree ment” and invited Palmer to reply with any written objections by October 3 if she did “not ag ree with the statements made in this

. . . letter,” including the drug testing require ment. Yet, Palmer did not file any objections. Fur thermore , Palmer’s deposition testimony makes clea

r that she did not “re fuse” to submit to drug testing. Although Hooper asked her “at least three times” to take a drug test, Palmer testified that she did not do so on the first two occa sions beca use her driver’ s license wa s suspended, a nd she did not have tra

nsportation. -13-No. 09-3924

Palmer v. Cac ioppo T i t l e VI I of the Civil Rights Act of 1964 prohibits an employ er from “discriminat[i n g]
ag ainst any individual with respe ct to his compensa tion, terms, conditions, or privileg es of employ ment, beca

use of such i ndividual’s

. . . s ex.” 42 U.S.C. § 2000e-2( a)( 1). Under Title VI I ,

an employ er may not eng ag e in quid pro quo sexual hara ssment, “which occur s when an employ ee’ s submissi on to unwanted sexual advanc es become s either a condition for the rec eipt of job benef its,

or the means to avoid an adver se employ ment action.” Howington v. Quality Rest. Concepts, LLC , 298 F. App’x 436, 440 (6th Cir. 2008). To preva il on a claim alleg ing quid pro quo sexual hara ssment, an employ ee must demonstra te: 1) that the employ ee was a member o f a protec ted class; 2) that the employ ee was subjected to un welcomed sexual hara ssment in the fo rm of sexual advanc es or reque sts for sexual favor s; 3) that th e hara ssment complained of was on the basis of sex; 4 )

. . . that the employ ee’ s ref

usal to submit to the supervisor’ s sexual demands resulted in a t an gi ble job detriment; and 5) the exis tence of responde at superior

liability

. Id. at 441. Although Palmer contends that Cacioppo “stag ed” her termination based upon Palmer’s “re fusal to have sex with her,” she has not prese nted any evidenc e sug g esting a causa l rela tionship betwee n the alleg ed sexual hara ssment and her discharg e months later. I ndeed, Palmer’s notice of 4

T h e dissent sug g ests that the defe ndants have supported their motion with insuffici en t 4 evidenc e. This rea soning misunderst an d s the defe ndants’s burden. Under applicable summary judgme nt analy sis, defe ndants may simply point to plaintiff’s lack of evidenc e to support a nece ssary element of her claim. Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986) (stating that “the burden on the moving party may be discharg ed by ‘showing ’—that is, point out to the district court—that there is a n absenc e of evidenc e to suppor t the nonmoving pa

rty ’s ca se”) . I f the plaintiff ha s failed to adduce such evide nce, summar y judgme nt is properly

g rante d. Thompson , 250 F.3d a t 405. -14-No. 09-3924

Palmer v. Cac ioppo termination makes perf

ectly clea r that her discharg e was premised u p o n n u m erous infrac tions, including her unauthorized absenc e on September 5; he r repe ated submissi on of untimely absenc e forms; and her failure to attend a schedule d drug counseling session at Tri-County EAP, as require d by the “last chanc e ag ree ment.” Fur thermore , the “last chanc e ag ree ment” states expli citly that Palmer’s failure to abide by the ag ree d-upon conditions o f em p l oy ment—including drug counseling

—could “re sult in further disciplinary action to include

. . . termination.” Whil e Palmer

asser ts in her brief that “Hoope r clea rly acte d in complicity with Cacioppo to have [her] terminated,” she has not pre sented a

ny evidenc e supporting such a c laim. Be cause she has failed to demonstrate a causa l rela tionship betwee n her ref usal to submit to Cacioppo’s alleg ed sexual advanc es an d h er termination, Palmer’s claim of quid pro quo sexual hara ssment is without merit. Acc ording ly , we aff irm the district court’s g rant of summary judgme nt. I I I

. For these re asons, we a ffirm the district c ourt’s judg ment in all respec ts. 5

Palmer also arg

ues t hat t he dis trict court re lied improperly upon various for

ms of hearsay 5 in gr anting summary judgme nt to the respondents. This arg ument is without m erit. Althoug h the district court ref

ere nced Null’s email to Cacioppo reg arding student enrollment in the statement of fac ts, it di d not rely

upon hear say

statements in its reasoning supporting summar y judgme nt. -15-No. 09-3924

Palmer v. Cac ioppo CLAY, Circuit Judge, dissentin g. Neither the reco rd i n t h is case nor t he applicable law support the district court’s g rant of summary judgme nt for Def endants on Plaintiff’s claims arising

u n d er 4 2 U.S.C. § 1983, and Title VI I of the Civil Rights Act of 1964 (“Title VI I ”), 42 U.S

. C

. § 2000e-2( a)( 1). We should there fore reve rse and rema nd for further proce eding s. Be cause the majority err oneously aff

irms th e j udg ment of the district court as explained below, I respe ctfully dissent. 1
I. Section 1983 Claim I n her claim under 42 U.S.C. § 1983, Plaintiff alleg es that Def endant Hooper violat ed her Four th Amendment rig ht to be fre e from unrea sonable sear ch and seizure by direc ting her to underg o drug testing. The district court g rante d s u m m ar y judgme nt for Hooper based on a finding that Plaintiff consented to the dr ug testing, and that the dr ug testing w as re asonable

. 2
Be cause Plaintiff is a public employ ee and submitt ed to the drug testing at the behest of her employ er, the drug testing impl icates the Four th Am endment and mus t there fore be reasonable to
pass constitutional muster. See, e.g. , Skinner v. R a i l w ay Labor Exe c. Ass’n , 489 U.S. 602, 614

Wit h respe ct to Pla in

ti f f ’ s c la im a r is in g u n d e r th e F a

mily and Medica l L eave Act (“F ML A”) , 1 29 U.S.C. § 2601 et seq. , Plaintiff did not appea l the district court’s deter mination that she does not have a “ser ious medical condition,” a t h reshold require ment under the FML A

. See Branham v. Gannett Satellite Info. Net., Inc. , 619 F.3d 563, 568 (6th Cir. 2010). There fore , the propriety of the entry of summary

judgme nt on Plainti ff’ s FML A claim nee d not be addr essed. I t is unclea

r whether a public employ ee ma y validly consent to a

n otherwise unrea sonable 2 drug testing policy , but the issue was neither briefe d by the parties, nor discussed by t h e d i s t ri ct court, and conseque ntly we need not consider the issue for purposes of this appea l. See, e.g. , Nat’l Fed’n of Fed. Employe es v. W

einberge r , 818 F.2d 935, 943 (D.C. Cir. 1987) (“[A] sear ch otherwise unrea sonable cannot be rede emed by a public employ er’ s exaction of a ‘conse nt’ to the sear ch as a condition of employ

ment.”) ( citing Picke ring v. Bd. of Educ. , 391 U.S. 563, 568 (1968)). -16-No. 09-3924

Palmer v. Cac ioppo (1989). Reasonable ness in this context is deter mined by balanc ing the public interest in such testing with the privac y rig hts of the individuals subject to the testing. See, e.g. , Nat’l Treasury Employe es Union v. Von Raab , 489 U.S. 656, 670-71 (1989); Knox Cnty. Educ. Assoc. v. Knox C n t y. Bd. of Educ. , 158 F.3d 361, 373 ( 6th Cir. 1998) (her einaf ter “ Knox County ”). The majority in this case h o lds that the school board’ s “one- y ear random drug testing require ment was rea sonable, particula rly in light of Palmer’s conviction for misdemeanor marijuana
possess i o n . ” (M aj. Op. at 11-12.) The majority contends that “[g]iven [P laintiff’s] marijuana convicti o n , t h e Boa

rd’s conce rn that she might repor t to work under the influence was wellfounded,” ( id. at 12), and that the drug testing require ment “ser ved as a rea sonable means of ensuring her c ompliance with the B oard’ s drug -fr ee w orkplac e policy .” ( Id. at 13.) Although the school board may h av e h ad a s t rong i ntere st in requiring drug testing, as the majority appea

rs to arg ue, the majority abruptly ends its inquiry on that point, resulting in a trunca ted analy sis at odds with preva iling case law. S ee Von Raab , 489 U.S. at 670-71; Knox County , 158 F.3d at 371. Contrary to the majority ’s app ar en t view, drug testing of a public school employ ee, such as Plaintiff, is not per se rea sonable under t he Fourth Amendment any time the school board has an individualiz ed suspicion of the employ ee’ s off cam p u s drug use. I nstead, a court must balanc e the public interest in d ru g testing with a second fac tor, namely the “employ ee’ s privac y rig hts.” Knox County , 158 F.3d at 379-80; see also Chandler v. Miller , 520 U.S. 305, 314-16 (1997). Wit hout adequately considering the weig ht of Plaintiff’s privac y rig hts, and there fore being unable

to proper ly weig h this counter vailing fac tor ag ainst the public interest, the majority has no leg al basis to hold that the drug testing is “r easona ble.” -17-No. 09-3924

Palmer v. Cac ioppo To acc ord appropriate weig ht to Plaintiff’s privac y rig hts, we must consider: 1) Plaintiff’s

rea sonable expectation of privac y based on the “d egr ee to which the industry in question is
reg ulated,” and 2) the intrusiveness of the drug testing scheme

. Knox County , 158 F.3d at 379-80. Be cause the rec ord is woef ully undevelope d as to the se issues, and conseque ntly g enuine issues of materia l fac t rema in as to the rea sonablene ss of the drug testing at issue, the m aj o ri ty err s in aff irming the district court’s g rant of summary judgme nt o n t h e basis that the drug testing was

rea sonable. First, as to Plaintiff’s rea sonable expectation of privac y as a school employ ee, public education i s a highly reg ulated environment, which may diminis h a public school employ ee’ s

re as onable expectation of privac y . See id. at 379. But the deg ree to which Plaintiff’s reas o n ab l e expectation of privac y may have been diminis hed on acc ount of her employ ment is unc lear . Most notably , the rec ord contains no evidenc e of an officia l dr ug testing policy apar

t from one ref

ere nce i n s ch ool board policies to the exis tence of an undescr ibed “testing prog ram.” Additionally , the policies contained in the rec ord reg ulate only , as the majority conce des, “substance abuse among school employ ees while on duty .” (Maj. Op. at 12.) Nothing in the policies contained in the rec ord purport to restric t an employ ee’ s, such as Palmer’s, off campus marijuana use so long as it rema ins

unconnec ted with the workplac e. ( See id. (quoting school board policies, which apply : “while on duty , on school proper

ty , or at a school rela ted ac tivity

/event”) .) The rec ord is likewise silent reg arding the extent to which other simil arly situated employ ees

are o r h ave been subjected to drug testing. The rec ord contains no discernible evidenc e that the school board provided notice to employ ees that its su b s t an ce abuse policies applied to private -18-No. 09-3924

Palmer v. Cac ioppo activities unconnec ted wit h the workplace. Be cause the s chool b oard relied on Plaintiff’s alleg ed marijuana use outside of the workplac e to impose the drug testing require ment on Plaintiff, inquiry into these undeve loped ar eas is nec essar y for the pr oper de position of this claim. Second, the rec ord is uni l l u minating reg arding the issue of the intrusiveness of the drug testing; the only information about the drug testing proce dures is contained in a diag nostic document that appea

rs to repor

t the results of Plaintiff’s drug test. The repor t is bare and u n ex p l ai n ed; it 3 contains t he names of eight subs tance s tested f o r; the results for each substance, with the pos itive

test results indicating verific ation by “re peat analy sis” without additional explanation; and the name of the health cente r and diag nostic company , Quest Diag nostics, I nc., which appea rs to be a “DHH S Certifica ted L abora tory .” The repor t also makes ref

ere nce to “GC/MS Reporti n g L evels,” with attendant levels, but neither the rec ord nor the parties explain the signific ance of this infor mation. The information contained in the unexplained repor t is insufficient to proper ly consider the intrusiveness of the drug testing. See id. at 380-83, 385. To p ro p er l y ev al uate Plaintiff’s claim, further inquiry is nece ssary into, among other things: 1) the specific proce dures and protocols of the d r u g te s ti n g , in c lu d ing the phy sical intrusiveness of the testing itself, the employ ee’ s phy sical privac y during the testing, and the qualifica tions of those perf orming the testing; 2) the need for the specific

t es t s p erformed; 3) the m inimum threshold t o trig g er a positive test result; 4) t he reliability of t he

test results, including the exis tence and nature of any independe nt revie w or protec tions ag ainst false

Notably , this do cu m en t was not proff ere d by Def

endants for the purpose of showing the 3 rea sonablene ss of the drug test. Def endants offe red the repor t onl y as ev i dence of the rea son for Plaintiff’s termination. (De fs.’ B r. at 14-15.) -19-No. 09-3924

Palmer v. Cac ioppo positives cause d by diag nostic err ors or circ umsta n ce s u n re lated to illega l drug use, such as presc ribed medication; and 5) the deg ree to which the test results are maintained in confide nce and stored in a secur e manner , including whether the results are available to law enfor ceme nt or used for law enfor ceme nt purposes. Id. ; see also Nat’l Fed’n of Fed. Employe es-I AM v. Vilsack , – F. Supp. 3d –, 2011 WL 1296859, at *9-11 (D.C. C ir. Apr. 6, 2011). Without more e vidence in the rec ord

as to the nature and extent of the intrusiveness of the drug testing at issue, summary judgme nt w as
not appropr iate on the basis that the dr u g t es t wa s reasonable. See Knox County , 158 F.3d at 386 (re manding challeng e to public employ ee a lcohol testing be cause the re cord w as insufficie nt). Acc ording ly , we should vaca te the g rant of summary judgme nt for Def endants on this claim, and rema nd for further fac tual development and leg al briefing prior to the district court considering

a motion for summary judgme nt. See, e.g. , Penny v. Kennedy , 915 F.2d 1065, 1068 (6th Cir. 1990) (en banc) (re manding Four th Amendment challeng e to city ’s drug testing policy , opining: “we are

uncer tain from the rec ord here whether the

. . . fourth amendment aspec ts of the actua l car ry ing out of the sea rch . . . ha ve bee n adequa

tely addre ssed”)

. II. Title VII Claim Plaintiff claims quid pro quo sexual hara ssment in violation of Title VI I

. The majority sets forth the applicable leg al standard, and it need not be repe at ed h er e. Fo r purposes of this claim, Plaintiff alleg es that: 1) her reje ction of sexual advances b y C ac i o p po cause d her termination; 2) Hooper aided the sexual hara ssment by Cacioppo; and 3) that the school board failed to protec t Plaintiff.

-20-No. 09-3924

Palmer v. Cac ioppo I n aff irming the g rant of summary judgme nt for Def endants, the majority conclude s t h at Plaintiff “has not prese nted any evidenc e sug g esting a causa l rela tionship betwee n the alleg ed sexual hara ssment and her discharg e months later.” (Maj. Op. at 14.) The majority rea sons that Plaintiff’s

n o t ice of termination “make s perf ectly clea r that her discharg e was premised upon numerous infrac tions

. . . .” (

Id. at 14-15.) The majorit y t h en re j ects Plaintiff’s arg ument that Hooper and Cacioppo ac ted tog ether

as without evidentiary

support. (

Id. ) Although glossed over by the m ajority , a rev i ew of t he record makes clear that the di strict

court err ed in g ranting summary judgme nt on Plaintiff’s Title VI I claim beca use Def endants plainly failed to meet their initial burden in moving for summary judgme nt, and there rema in g enuine issues of mater ial fac t that prec lude a g rant of summar y judgme nt. Def endants moved for summary judgme nt on the sole basis that Plaintiff “neither asser ts nor proves” the element of causa tion, for which Def endants contende d that “no evidenc e” exis ted. Def endants asser

ted that Plaintiff was terminated for failing her drug test and otherwise violating the
L ast Chance Ag ree ment. Although Def endants may s at i s fy their initial burden under Rule 56 by pointing to the absenc e of evidentiar y support for Palmer’s claim, see Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986), Def endants’ failed to meet their initial burden in this case , as explained below, b eca use Def endants failed to addre ss, or even acknow ledg e the exis tence of, evidenc e ten d i n g t o support Palmer’s c laim. See Hunter v. Caliber Sys., Inc. , 220 F.3d 702, 726 (6th Cir. 2000) (“ I f a moving party fails to car

ry its initial burden of production, the non-moving party has no obliga tion to produce any

thing.” ) (inter

nal quotations and citation omitted).

-21-No. 09-3924

Palmer v. Cac ioppo Def endants offe red only the following rec ord evidenc e in support of their motion below: 1)

an unexplained, g ener al citation to 52 pag es of exhibi ts; 2) citation to deposition testimony wher ein Plaintiff admits to marijuana use during the period in which she was employ ed, althoug h not while

on the job (De fenda

nts did not explain the rele vance of this cited testimony to the Title VI I claim); 3) citation to deposition testimony wher ein Plaintiff purports to admit that she was fired beca use of her positive drug test (De fenda nts did not explain the rele vance of Plaintiff’s subjective belief about her termi n at i o n t o the Title VI I claim); and 4) citation to deposition testimony wher ein Plaintiff admits her inability to produce evidenc e that Hooper knew about the alleg ations o f sexual hara ssment. Neither this rec ord evidenc e nor Def endants’ arg uments below o r o n ap p eal a dequate ly addre ss Plaintiff’s alleg ations ag ainst eac h specifi c D e f e n d a n t. Wi th r e g ard to Cacioppo, Def endants did not direc tly addre ss Plaintiff’s claim that afte r she reje cted the “unwe lcome[d] sexual advanc es, Cacio p p o repe atedly denig rate d her work perf ormanc e, hara ssed and belea g uere d her, and such

ac t i ons ultimately le[d] to and [were] the proxi mate cause of Palmer being discharg ed from her employ ment of 13 y ear s.” (Am. Compl. ¶ 2; see also Madden v. Chattanooga City W ide Serv. Dep’ t , 549 F.3d 666, 677 (6th Cir. 20 0 8 ) (holding that an employ er’ s decision to terminate the plaintiff based on information supplied by a supervisor satisfies the causa tion require ment); W ilson v. Stroh Cos. , Inc. , 952 F.2d 942, 946 (6th Cir. 1992) (holding t hat t he “determinative que stion is whether [ t h e p laintiff] has submitt ed evidenc e that [a supervisor’ s]

. . . animus was a caus e o f t h e termination.”).)

-22-No. 09-3924

Palmer v. Cac ioppo Hooper ’s liability was likewise all but ignor ed by Def endants. Def

endants’ arg ument to the district court consisted only of the following sentenc e: “[i] t is altog ether unclea r why Hooper is a party as there is no evidenc e that Hooper even knew of Palmer’s alleg ations ag ainst Cacioppo.” (Mot. at 15 (citing to unexplained deposition testimony ).) Def endants’ asser

tion, howeve r, ignor ed Plaintiff’s deposition te stimony that she believe s Hooper hear d about the alleg ations from another administrator, and that Plaintiff claims to have herse lf informed Hathorn of the allega t i o n s . Moreove r, any lack of ac t u al knowledg e fails to neg ate Plaintiff’s alleg ation that Hooper “intentionally , reck

lessly , or negligently aided” in the sexual h ar as sment. (Am. Compl. ¶ 3 (empha sis added).) Finally , in moving for summary judgme nt, Def endants made no ref

ere nce at all to the issue of the liability of the school board, or otherwise addre ssed the alleg ations ag ainst the school board contained in the A mended Complaint. ( See id. ¶¶ 4- 6.) Acc ording ly , i n the fac e of unmet alleg ations that appea r to have rec ord support, and the

numerous unresolved materia l fac tual disputes that appea r to rema in, we should reve rse the g rant of
summary judgme nt on this claim.
III. Conclusion For these rea sons, I respe ctfully dissent from the majority ’s dispositi on of Plaintiff’s claims arising under 42 U.S.C. § 1983, and Title VI I

. Be cause it is unnece ssary to addre ss the viability of Plaintiff’s FML A claim, for the rea sons set forth in footnote 1, supra , I decline to join the majority opinion’s discussion of the FML A issue.

-23-