-------------------------
In reduction in force
case, age and sex discrimination claims fail because plaintiff was not
similarly situated to younger males who were treated more favorably.
Gragg v. Somerset Technical College,
373 F.3d 763 (6th Cir. June 22, 2004) - Sharon Gragg lost her job as a result of
a reduction in force. She sued various governmental entities and officials
for age and sex discrimination, as well as for violating her free speech and
due process rights under the federal and state constitutions. In 2001, the
district court granted summary judgment for the defendants as to all claims
with the exception that it denied the summary judgment motions of the individual
defendants who argued that they were subject to qualified immunity regarding
three speech retaliation claims. On interlocutory appeal, the denial of
summary judgment as to those defendants was reversed on the basis that Gragg
had not engaged in speech on a matter of public concern. See,
Gragg v. Kentucky Cabinet for
Workforce Development, 289 F.3d 958 (6th Cir. May 20, 2002). On
remand, the district court entered an order dismissing the case and Gragg
has now appealed. With respect to the speech retaliation claims, the
decision by the earlier panel that Gragg was not speaking on a matter of
public concern is the law of the case. There is one other speech retaliation
claim that was not addressed on interlocutory appeal, but the Sixth Circuit
now dismisses that claim as well because Gragg's alleged request for
overtime pay is not a matter of public concern. With respect to her age and
sex discrimination claims, she failed to make out a prima facie case
because she failed to produce "additional direct, circumstantial, or
statistical evidence tending to indicate that the employer singled out the
plaintiff for discharge for impermissible reasons." She attempted to make
this showing with evidence that younger males were treated more favorably,
but these younger males were not similarly situated. Moreover, even if she
had made out a prima facie case, she failed to show that the
proffered reason for abolishing her position was pretextual. Gragg was a
regional educational consultant. Her region of the state had two persons in
this position. Other regions only had one. Therefore, her position was
abolished to achieve a uniform staffing pattern. This summary does not
address her due process claims or her claim under the Kentucky Constitution.
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