Black v. Hamilton Cnty. Pub.

SHONITA M. BLACK, Plaintiff, v. HAMILTON COUNTY PUBLIC, DEFENDER COMMISSION, et al., Defendants.

Case No. 1:12-cv-503

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

June 24, 2015

Dlott, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Plaintiff Shonita Black brings this action alleging violations of her federal statutory and civil rights and various state law provisions in connection with the termination of her employment. This matter is before the Court on a motion to dismiss/motion for summary judgment filed by defendants Hamilton County Public Defender Commission (HCPD Commission), Hamilton County/Hamilton County Board of County Commissioners (BOCC), Kimberly Helfrich and Shelia Kyle-Reno (Doc. 97), plaintiff's response in opposition (Doc. 106), and defendants' reply in support of their motion. (Doc. 107). For the reasons set forth below, the Court recommends that summary judgment be granted in favor of defendants on all claims brought against them.

I. Facts

Plaintiff filed the original complaint in this matter on July 2, 2012 (Doc. 1) and the first amended complaint on July 24, 2012. (Doc. 2). The amended complaint names as defendants "Hamilton County/Hamilton County Board of Commissioners/Hamilton County Public Defender Commission," Kimberly Helfrich individually and in her official capacity, and Shelia Kyle-Reno individually and in her official capacity.¹ Plaintiff brings claims under federal law for: (1) interference with her rights under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq.; (2) retaliation under the FMLA; (3) racial and gender harassment/creation of a hostile work environment under Title VII, 42 U.S.C. § 2000e, et seq.; (4) retaliation under Title VII; and (5) violation of her due process and other rights under the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983. Plaintiff also brings state law claims for: (1) libel against defendant Helfrich; (2) negligent infliction of emotional distress; (3) intentional infliction of emotional distress; and (4) negligent retention and supervision. (Id.).

The following facts are undisputed²: Plaintiff is an African-American female who began her employment with the office of the Hamilton County Public Defender (HCPD) in August 2007 as an Attorney Guardian ad Litem in the Attorney Guardian ad Litem Division. (Doc. 84, Helfrich Depo. at 96; Doc. 106-1, ¶ 1). Plaintiff remained in the position of Attorney Guardian ad Litem until her termination in April 2011. (Doc. 97-1, Bailey Aff., Att. 2, Exh. A, Helfrich Aff., ¶ 4). Defendant Helfrich was the Director of the Guardian ad Litem Division throughout plaintiff's employment. (Id., ¶ 1).

The Public Defender has the duty to assess indigency and establish staff to provide legal and administrative services that ensure effective representation in criminal and family law matters. (Id., ¶ 3). The duty of a guardian ad litem to an alleged or adjudicated abused, neglected or dependent child is to "perform whatever functions are necessary to protect the best interest of the child, including, but not limited to, investigation, mediation, monitoring court proceedings, and monitoring the services provided the child by the public children services agency or private child placing agency that has temporary or permanent custody of the child, and shall file any motions and other court papers that are in the best interest of the child." Ohio Rev. Code § 2151.281(I). If the guardian ad litem for an alleged or adjudicated abused, neglected or dependent child is an attorney admitted to practice law in Ohio, the guardian ad litem may also serve as counsel to the ward. Ohio Rev. Code § 2151.281 (H). In her capacity as Attorney Guardian ad Litem, plaintiff served in both capacities. (Doc. 97-1, Bailey Aff., Att. 2, Exh. A, Helfrich Aff., ¶ 6). In cases in the Dependency Division of Juvenile Court, the following individuals would generally appear: (1) a social worker appointed by the Hamilton County Department of Jobs and Family Services (JFS); (2) an Assistant Prosecuting Attorney on behalf of the JFS social worker; (3) a Social Worker Guardian ad Litem in cases alleging dependency or neglect; (4) an Attorney Guardian ad Litem on behalf of the child in cases alleging abuse and on behalf of the social worker in cases alleging dependency or neglect; (5) parents; and (6) private counsel and/or a guardian ad litem to represent the parents. (Doc. 78, Kathryn Boller-Koch Depo. at 19-20). The function of both the Attorney Guardian ad Litem and Social Worker Guardian ad Litem is to advocate for the best interests of the child and to be that child's voice in court. (Doc. 84, Helfrich Depo. at 18-19).

Once a complaint alleging dependency, neglect or abuse is filed, an initial hearing known as a "Day 1 hearing" is scheduled before a magistrate. (Doc. 78, Boller-Koch Depo. at 23-24). If the parents do not appear at the hearing, a "Day 7 hearing" is set for one week out to allow notice to go out to the parents. (Id. at 26-27). An Attorney Guardian ad Litem is expected to attend every court hearing on each case to which she is assigned or to find someone to cover the case, although it is occasionally appropriate for a Social Worker Guardian ad Litem to attend hearings without Attorney Guardian ad Litem representation. (Doc. 84, Helfrich Depo. at 50-51). The supervisor is responsible for ensuring coverage of the Attorney Guardian ad Litem's cases when the attorney is absent. (Id. at 38). The Attorney Guardian ad Litem is required to file two reports in connection with court hearings: (1) a disposition report, which is filed at the time of the disposition hearing, and (2) a review report, which is filed ten days in advance of a review hearing. (Doc. 78, Boller-Koch Depo. at 127-29).

As early as 2009, several magistrates relayed complaints to Helfrich about plaintiff's performance of her job duties as Attorney Guardian ad Litem. Magistrate Boller-Koch contacted Helfrich about concerns with plaintiff's tardiness for court appearances, her failure to timely file reports, and her unprofessional behavior. (Doc. 78-1, Exhs. 17, 27). In an email dated May 27, 2009, Magistrate Boller-Koch related a specific incident from that day and stated that plaintiff was "notoriously late for hearings" and displayed a "lack of decorum" once she was called to task for her dilatory behavior. (Doc. 78-1, Exh. 17). On December 10, 2009, Magistrate Boller-Koch sent an email to Helfrich complaining that plaintiff had failed to file a report on a case the prior day. (Doc. 78-1, Exh. 27).

Several other magistrates contacted Helfrich to complain about similar issues with plaintiff. Magistrate Charles Milazzo sent an email to Helfrich dated December 30, 2009, informing her that plaintiff was "routinely late for [his room]." (Doc. 78-1, Exh. 30). Prior to that date, Magistrate Milazzo had spoken directly to plaintiff about the issue and failing to achieve a resolution, had a follow-up conversation with Helfrich in an attempt to resolve the matter. (Doc. 81, Milazzo Depo. at 75-76, 78-79).

Magistrate Brenda Anthony also complained to Helfrich that plaintiff was missing hearings that were scheduled before her. (Doc. 78-1, Exh. 15). In an email dated May 27, 2009, she also relayed that plaintiff had been dishonest about the reason for missing at least one hearing. (Id., Exh. 15). In an email dated July 17, 2009, Magistrate Anthony wrote an email to Helfrich stating that she believed plaintiff had been "remiss in her duties" for failing to visit a child after the child was placed in a new foster home and for failing to file an updated guardian ad litem report. (Id., Exh. 18).

Nathan Bell, Assistant Director of the Guardian ad Litem Division and plaintiff's intermediate supervisor (Doc. 97-1, Att. 2, Bailey Aff., Exh. 7, Nathan Bell Aff.), and Helfrich counseled plaintiff about her issues with tardiness in November 2009. (Doc. 84, Helfrich Depo. at 128-29). Prior to May 2010, Helfrich also had some discussions with plaintiff about certain incidents relayed by the magistrates. (Doc. 85, Pltf. Depo. at 462).

Helfrich issued plaintiff a "Record of Oral Warning" on May 13, 2010. (Doc. 78-1, Exh. 37). The warning stated that over the past several weeks, multiple complaints had been received regarding plaintiff's job performance and the supervisory staff in the Guardian ad Litem Division had "noticed deficits in [plaintiff's] performance." (Id.). Specifically, magistrates and other professionals had complained several times to Helfrich regarding plaintiff's timeliness for court hearings, which was an "on-going struggle" for plaintiff. (Id.). In addition, Helfrich had received several complaints concerning plaintiff's failure to file court reports in compliance with office requirements and Ohio Supreme Court Superintendence Rule 48. (Id.; see Ohio Sup. R. 48). Of particular note, Magistrate Milazzo had expressed concern in a recent case where plaintiff failed to file a report and then provided an excuse that the magistrate questioned and was unable to verify. (Id.). Further, plaintiff struggled to maintain her calendar. (Id.). Professional decorum in the courtroom was also noted to be an issue for plaintiff as she had a tendency to become defensive when her position was questioned. (Id.). The other two categories of deficiencies noted were difficulty meeting basic responsibilities and failure to timely respond to phone calls and email communications. (Id.).

Magistrate Milazzo subsequently reported to Helfrich on June 1, 2010, that plaintiff had missed a hearing in his courtroom. (Doc. 81, Milazzo Depo. at 109). The magistrate informed Helfrich that he doubted the veracity of plaintiff's reason for missing the hearing because although she reported being outside the courtroom while the hearing was taking place, no one was present when the area outside the courtroom was checked at the time of the hearing. (Id. at 109-11).

...