                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0463n.06
                                Filed: June 6, 2005

                                               No. 04-5430

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


JANINE A. BILYEU, Individual,                          )
                                                       )
        Plaintiff-Appellant,                           )
                                                       )
v.                                                     )    ON APPEAL FROM THE UNITED
                                                       )    STATES DISTRICT COURT FOR THE
METROPOLITAN GOVERNMENT OF                             )    MIDDLE DISTRICT OF TENNESSEE
NASHVILLE AND DAVIDSON COUNTY,                         )
by and through its Metropolitan Board of               )
Education,                                             )
                                                       )
        Defendant-Appellee.                            )



        Before: DAUGHTREY and GIBBONS, Circuit Judges, and SARGUS,* District Judge.


        PER CURIAM. The plaintiff, Janine Bilyeu, appeals from the judgment entered in

favor of the defendant, the Metropolitan Board of Education, following a bench trial on her

claims of gender discrimination, sexual harassment, and retaliation filed pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. By agreement of the

parties, the case was heard by a magistrate judge sitting as the district court. On appeal,

we find no reversible error and affirm.




        *
        The Hon. Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting
by designation.
No. 04-5430


       The record indicates that the plaintiff applied for a teaching position with the

Metropolitan Nashville Public Schools and was originally assigned to teach freshman

Biology at Martin Luther King Magnet High School. After one year at Martin Luther King,

the plaintiff transferred to Nashville School of the Arts, where she taught Wellness and

Physics from 1998 through the end of the 2000-2001 school year.


       Bilyeu claimed that during her initial interview with Elbert Ross, then the principal at

Nashville School of the Arts, Ross commented on her “Kennedy eyes” and, at a later date,

stated to her, “Your husband is a lucky man you stay in the shape you are in.” She further

testified that Ross called her at her home on three separate occasions, twice inquiring

whether her husband was home before asking if another teacher had ever made

inappropriate comments to or about Bilyeu.


       In March 2000, because Bilyeu had been with the school system for three years,

Ross evaluated the plaintiff and her work in preparation for a decision on whether to grant

her tenure. On March 17, 2000, Bilyeu and Ross met in Ross’s office to go over the tenure

evaluation and proposed decision. According to the plaintiff, the principal’s knees touched

her knees under the table “a number of times” in a manner that made her uneasy. Later

during the meeting, while discussing the plaintiff’s comfort level with the human

reproduction unit she was required to teach in the Wellness course, Bilyeu said that Ross

asked whether she had “ever been with anybody that has erectile dysfunction.” He then

inquired what the plaintiff would do for Ross’s 22-year-old stepson, who suffered from the


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No. 04-5430


problem. At that point, Bilyeu said, she suggested that the young man see a urologist and

attempted to steer Ross’s attention back to her evaluation. Although the end result of the

meeting was a grant of tenure to Bilyeu, the plaintiff alleged that the conditions of her

employment at Nashville School of the Arts under Ross deteriorated significantly from that

point onward.


       Specifically, the plaintiff testified that, in the fall of the 2000-2001 school year, Ross

consistently refused to reimburse her for her purchase of basketball rims for the school

gymnasium that she had made with funds appropriated to her for another purpose. She

also related that later in the fall, after the plaintiff and Ross exchanged words in the school

library regarding the delay in reimbursement, Ross wrote her a letter of discipline, but the

next day, offered to “just hug on it,” after learning that the plaintiff had spoken to a union

representative about the incident. According to Bilyeu, “[i]t was beyond a brotherly hug.

It was beyond the scope of an administrator’s hug to console someone who had been in

the position I had been in.      It was very close, it was uncomfortable and I did not

reciprocate.”


       In early 2001, the plaintiff complained about suggestive, inappropriate jokes told by

Dale Malleck, a physical education teacher and coach at Nashville School of the Arts.

Although Malleck was known to relate such improper jokes in class and in other settings,

Bilyeu claimed he also made her the subject of one of his attempts at humor in front of co-

workers in the school lunchroom. The plaintiff reported the incident to the appropriate


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No. 04-5430


school authority, and Malleck was eventually disciplined and issued written directives to aid

in his rehabilitation.


       Bilyeu filed a charge of discrimination with the Equal Employment Opportunity

Commission on April 9, 2001, a complaint that was later amended to include acts occurring

between March 27, 2001 and May 21, 2001. In that filing, and later before the district court,

she alleged sexual harassment as a result of the incidents discussed. Furthermore, the

plaintiff alleged gender discrimination based on the facts that she did not receive keys to

school locker rooms, dressing rooms, and equipment rooms; that she was not allowed to

access certain funds for teams that she coached; that she, but not a male teacher, was

forced to move into a portable classroom; and that she was given a larger teaching load

than other employees. Bilyeu also alleged that after the filing of her administrative

complaints, Ross and the school board retaliated against her by placing other complaints

and memos in her permanent file and by docking her one-half day’s pay for arriving late at

a meeting at the Board of Education headquarters.


       In federal court, both parties filed motions for summary judgment. The district court

denied Bilyeu’s motion, finding that there were disputed issues of material fact that would

require an evidentiary hearing.      The court granted the defendant’s motion in part,

dismissing the claim of gender discrimination, and denied summary judgment on the sexual

harassment and retaliation claims. The matter then proceeded to trial on the latter two

issues, without the intervention of a jury.


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No. 04-5430


       At the trial, in response to the plaintiff’s evidence outlined above, the defendant

relied principally upon the testimony of Ross, who denied that he had engaged in any

unprofessional conduct toward Bilyeu. He admitted that he had commented on her eyes,

likening their appearance to “Bobby Kennedy’s eyes,” and that he had complimented her

on what good shape she was in – noting that she was, after all, the track coach for some

of the students. Ross also admitted that he sometimes engaged in hugging school

personnel, apparently in an effort to boost morale. But Ross denied ever speaking to

Bilyeu about erectile dysfunction, saying that if his step-son suffered from the condition, he

did not know about it, and that he had no recollection of their knees ever touching during

the plaintiff’s tenure meeting with him.


       At the conclusion of the trial, the court dismissed all claims brought by Bilyeu, finding

that she had not substantiated them. She now appeals the district court’s decision.


       As an initial matter, the plaintiff challenges the denial of her motion for summary

judgment. She argues that the court continually referred in his memorandum opinion to the

evidence adduced by Bilyeu that would support her claims, yet inexplicably refused to rule

in her favor in that pretrial determination. This allegation of error, however, represents a

basic misunderstanding of summary judgment law. In this case, the court simply concluded

that the plaintiff produced sufficient evidence to permit the possibility of a jury verdict for

Bilyeu on her hostile work environment claim. It did not find that a jury must so rule. In

fact, at the conclusion of the trial, the judge, sitting as fact-finder in lieu of a jury,


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No. 04-5430


determined that the defendant had presented sufficient evidence to support its legal

position in the dispute. Hence, there is no merit to this contention.


       The plaintiff next contends that the court erred in allowing the defendant to submit

Ross’s affidavit after discovery had closed. But the affidavit in question was submitted in

response to the plaintiff’s motion for summary judgment and was therefore proper under

Federal Rule of Civil Procedure 56(c).


       The plaintiff raises several issues involving various rulings made by the court during

trial. Among other things, she complains about restrictions on the introduction of evidence

of retaliation occurring after May 16, 2001. It appears, however, that this limitation was the

result of settlement agreements reached with other defendants initially listed in the

complaint. The court also properly excluded evidence of allegations made against Ross

by individuals other than the plaintiff, because that evidence became irrelevant once the

defendant waived its affirmative defense to the plaintiff’s allegations of sexual harassment.

Likewise, there was no error in permitting Deambrosia Martinez to testify, even though her

name was not included on the witness list, because she was called in response to

information received during a break in the trial proceedings.


       The plaintiff’s allegation that the court failed to consider the testimony of her

psychiatric expert witness, Dr. Greg Kyser, apparently stems from the fact that the court

did not discuss Dr. Kyser’s testimony at length in the memorandum opinion in which it

announced the outcome of the trial. But the failure to set out the expert’s testimony in

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No. 04-5430


detail does not mean that the evidence was not considered. Moreover, the plaintiff has not

indicated on appeal what an extended discussion in the opinion would have accomplished.

Indeed, our reading of the record suggests that the psychiatrist’s testimony may have been

more damaging to the plaintiff’s case than it was helpful.


       Finally, as to the merits of Bilyeu’s case, we conclude that the court did not err in

finding that she had failed to establish that she was subjected to a hostile work environment

or to retaliation for the exercise of a protected right. Because the reasons why judgment

should be entered for the defendant have been fully articulated by the court below, the

issuance of a more detailed opinion by this court would be duplicative and would serve no

useful purpose. Accordingly, we AFFIRM the judgment of the magistrate judge, sitting as

the district court, upon the reasoning set out the memorandum opinion filed on February

3, 2004.




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