                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 05a0870n.06
                              Filed: October 25, 2005

                                                Case No. 04-4203

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

 JUDITH HERBICK,                                                )
                                                                )
             Plaintiff-Appellant,                               )
                                                                )        ON APPEAL FROM THE
                    v.                                          )        UNITED STATES DISTRICT
                                                                )        COURT FOR THE NORTHERN
 SALEM CITY SCHOOL DISTRICT                                     )        DISTRICT OF OHIO
 BOARD OF EDUCATION,                                            )
                                                                )
             Defendant-Appellee.                                )
                                                                )
                                                                )
 ______________________________________                         )

BEFORE: GUY, BATCHELDER, and GILMAN, Circuit Judges.

         ALICE M. BATCHELDER, Circuit Judge. Plaintiff-Appellant Judith Herbick appeals

the district court’s grant of summary judgment in favor of Defendant-Appellee Salem City School

District Board of Education (“the Board”) on Herbick’s claims of promissory estoppel and age

discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) and Ohio law.1

Because we find that Herbick cannot show that the Board’s stated reasons for not re-hiring her were

pretextual, and no genuine issue of material fact precludes judgment as a matter of law on her

promissory estoppel claim, we AFFIRM the judgment of the district court.

                                 I. Factual and Procedural Background



         1
          Herbick’s first amended complaint also listed violations of Title VII of the Civil Rights act of 1964, Ohio
public policy, and breach of contract. The district court dismissed those claims at the summary judgment stage, and
Herbick does not appeal those adverse determinations.
         Herbick retired as a teacher from the Youngstown City School District in 1998 and was sixty

years of age throughout the time period relevant to this case. After her retirement, the Board hired

her as a part-time teacher of gifted and remedial students and assigned her to the St. Paul Catholic

School for the 1998-1999 school year.2 The initial contract was for a one-year term that expired at

the end of the school year. The Board re-hired Herbick for the 1999-2000 school year and again for

the 2000-2001 school year. However, in the spring of 2002 the Board voted not to renew Herbick’s

contract, and did not re-hire her for the 2002-2003 school year, deciding instead to combine her part-

time position at St. Paul with a similar part-time position at Reilly Elementary School, creating one

full-time position. The Board notified Herbick by letter dated April 22, 2002, that it had voted on

April 15, 2002, not to re-hire her.

         Although Herbick had not been re-hired, Ted Cougras, the school district’s Director of

Business and Finance, erroneously sent her a salary notice around the first of July, stating that she

would receive an hourly rate of $32.15, which would be in effect from July 1, 2002, through June

30, 2003. In previous years Herbick had never received either a written contract or this kind of

salary notice from Cougras or the Board, but she nonetheless claimed that this notice constituted a

contract for employment for the upcoming school year and that, relying on it, she purchased supplies

and readied her old classroom for the new school year on August 20, 2002.

         Meanwhile, the new combined position remained officially unfilled. Because of a lack of

kindergarten enrollment, the Board needed to reassign one of its kindergarten teachers; accordingly,

Paula Wonner, a kindergarten teacher, was offered the new St. Paul/Reilly position. Wonner did not

accept the job and instead opted to participate in the school district “bid bowl,” in which teachers

         2
         The Board provided gifted and talented teachers to private schools within the school district pursuant to the
requirements of Title I of the Elementary and Secondary Education Act of 1965, 20 U.S.C. § 2701, et seq.

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who are part of the collective bargaining unit are allowed to bid for open jobs within the district.

At the bid bowl, Moira Lutsch, a 58-year-old first-grade teacher, bid on the new full-time St.

Paul/Reilly job. Wonner then bid on Lutsch’s old job. Lutsch apparently had a change of heart

about half an hour after bidding on the job and retracted her bid, instead taking a job within the

district at Buckeye Elementary School. Herbick could not participate in the bid bowl because she

was not a member of the collective bargaining unit.

       Whether Lutsch was ever awarded the job—rather than simply having bid on it—is unclear;

the only mention of it appears in the deposition testimony of Dr. Brobeck, the district

superintendent, who stated that Lutsch “was under contract. She was in the position for about 30

minutes.” In any event, Lutsch’s retraction left the new position open at the end of the bid bowl.

       Mrs. Hammer, the St. Paul principal, called Herbick on August 21, 2002, and questioned

whether Herbick had in fact been re-hired for the upcoming school year. Herbick called her

supervisor, Steve Stewart, told him that she had a contract (referring to the erroneously sent salary

notice), and took the salary notice to him to examine. Stewart checked into the matter and informed

Herbick later that day that she did not have the job. That same day, Cougras sent her a letter

apologizing for erroneously sending her the salary notification earlier in the summer. The next day,

although she knew that her former position had been merged into a full-time position, Herbick

contacted Dr. Brobeck to tell him that she needed the work badly and that she wanted to work two

days a week.

       After the bid bowl, the Board hired Lisa Sainato, a teacher in her mid-twenties from outside

the collective bargaining unit, to fill the still-vacant St. Paul/Reilly position. Dr. Brobeck testified

that the district did not consider Herbick for the position because on April 15, 2005, the Board had


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not renewed her contract, Herbick did not request a Letter of Circumstance after her contract was

not renewed, and because Herbick never indicated any interest in the full-time position and only

expressed an interest in continued part-time work. Herbick, however, contended that she always

expressed an interest in the new position and that the Board did not consider her for the full-time

position because of her age.

       The Board could not make contracts with part-time or auxiliary employees for more than one

year and it often non-renewed employees who were on one-year contracts because of uncertainty

as to allocation of funds for the upcoming school year. Herbick had been non-renewed in previous

years, but once budget issues were straightened out during the summer, the Board had asked her to

teach again for the upcoming school year. However, in the summer of 2002, the Board became

aware that at least one member of the collective bargaining unit was in need of reassignment, so the

Board did not contact Herbick to re-hire her for the new full-time position.

       Herbick filed her complaint against the Board on September 15, 2003, and filed an amended

complaint on December 30, 2003, arguing that the Board refused to hire her for the combined

position because of her age and because of her participation in an activity protected by Title VII, and

alleging that the erroneously sent notice constituted a contract for employment or that, because she

had reasonably relied on the notice to her detriment, the notice was a promise of employment that

the Board was estopped to retract. The district court granted the Board’s motion for summary

judgment on all claims on August 30, 2004. Herbick then filed this appeal, alleging error on the part

of the district court in dismissing the ADEA and state-law age discrimination claims and the

promissory estoppel claim.

                                      II. Standard of Review


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       We review a district court’s grant of summary judgment de novo, using the same standard

under Rule 56(c) used by the district court, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999)

(en banc), and we consider the record as it stood before the district court at the time of its ruling.

Niecko v. Emor Mktg. Co., 973 F.2d 1296, 1303 (6th Cir. 1992). Summary judgment is proper if

“the pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). We view the evidence, all

facts, and any inferences that may be drawn from the facts in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

       To withstand summary judgment, the non-movant must present sufficient evidence to create

a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A

mere scintilla of evidence is insufficient; “there must be evidence on which the jury could

reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

                              III. The Age Discrimination Claims

A. Prima Facie Case

       A plaintiff may establish an ADEA case either by presenting direct evidence of

discrimination or by following the McDonnell Douglas burden-shifting approach. Minadeo v. ICI

Paints, 398 F.3d 751, 763; (6th Cir. 2005); Rowan v. Lockheed Martin Energy Sys., 360 F.3d 544,

547 (6th Cir. 2004). Because Herbick could not produce direct evidence of discrimination, she was


                                                  5
required to make out a prima facie case by showing that: (1) she was a member of a protected class,

(2) who suffered an adverse employment action, (3) was qualified for the position, and (4) was

replaced by a person outside the class. Rowan, 360 F.3d at 547. See also McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973).

       The district court granted summary judgment to the Board because Herbick failed to prove

the fourth element of the prima facie case. The Board conceded that she had proved the first three

elements, but argued at summary judgment and argues on appeal that she was not replaced by

someone substantially younger than she. For her part, Herbick focused her argument almost entirely

on the fact that the job, even though initially bid upon by Lutsch, eventually ended up going to

Sainato. In light of Herbick’s utter failure to demonstrate pretext with regard to the Board’s

proffered reasons for not re-hiring her, we decline to determine whether the unusual circumstances

of this case, in which a bargaining unit teacher not substantially younger than Herbick successfully

bid on the new position but immediately retracted that bid, preclude a finding that Herbick

established the fourth prong of her prima facie case.

B. Legitimate Nondiscriminatory Reasons as a Pretext for Discrimination

       Under the McDonnell-Douglas framework, once a plaintiff makes out a prima facie case, the

defendant has the burden of articulating a legitimate, nondiscriminatory reason for the adverse

employment action. Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001); Barnett v. Dep’t of

Veterans Affairs, 153 F.3d 338, 341 (6th Cir. 1998). If the defendant articulates such a reason, the

plaintiff must demonstrate by a preponderance of the evidence that the defendant’s proffered reasons

were a pretext designed to hide age discrimination. Burzynski, 264 F.3d at 622. A plaintiff may

accomplish this by showing either that (1) the proffered reason has no basis in fact, (2) the proffered


                                                  6
reason did not actually motivate the action, or (3) the proffered reason was insufficient to motivate

the action. Tinker v. Sears, Roebuck & Co., 127 F.3d 519, 523 (6th Cir. 1997).

       The district court did not address the issue of legitimate nondiscriminatory reasons or pretext,

having found that Herbick did not make out a prima facie case. However, the record clearly

demonstrates that the Board is entitled to summary judgment on the basis of its unrebutted legitimate

reasons for not renewing her contract. The Board’s stated reasons for not considering Herbick for

the open position, as articulated by Dr. Brobeck in his deposition, are legitimate and

nondiscriminatory, and are unrefuted. Especially significant is that Herbick’s own deposition

testimony demonstrates that she was interested in continuing to work only on a part-time basis and

that she never told anyone with decision-making authority that she was specifically interested in the

new full-time position.

       It was Herbick’s burden to show that the Board’s apparently legitimate reasons were

pretextual. She has provided no basis upon which we could conclude that the Board’s decision was

in fact motivated by her age. Significantly, she does not argue that the decision to consolidate the

positions was motivated by her age. In short, Herbick provides no evidence to support a finding that

the Board’s proffered reason has no basis in fact, or did not actually motivate its action, or was

insufficient to motivate its action. Tinker, 127 F.3d at 523. Accordingly, the Board is entitled to

summary judgment.

C. State-Law Age-Discrimination Claim

       We apply to claims brought pursuant to Ohio’s age discrimination law the same analysis that

we apply to ADEA claims. See Minadeo, 398 F.3d at 763; Ercegovich v. Goodyear Tire & Rubber

Co., 154 F.3d 344, 357 (6th Cir. 1998). See also Ohio Rev. Code § 4112.02(A). Because we


                                                  7
conclude that the Board was entitled to summary judgment on the ADEA claim, we affirm as well

the summary judgment in the Board’s favor on the Ohio age discrimination claim.

                              IV. The Promissory Estoppel Claim

       Herbick’s final claim is that the pay notice from Cougras’s office was a promise of

employment on which she relied to her detriment, and which the Board was estopped to withdraw.

The district court granted summary judgment to the Board on Herbick’s promissory estoppel claim

as well. In Ohio, a promissory estoppel claim in an employment context requires that the plaintiff

show (1) a clear and unambiguous promise, (2) reliance by the party to whom the promise is made,

(3) the reliance was reasonable and foreseeable, and (4) the party claiming estoppel was injured by

the reliance. Mers v. Dispatch Printing Co., 483 N.E.2d 150, 152 (Ohio 1985). The district court

held that Herbick’s reliance on the pay notice generated from Cougras’s office was unreasonable

because Herbick admits both that she understood from the letter of April 22, 2002, that her contract

had not been renewed for the 2002-2003 school year, and that she understood that only the

Board—not individual administrators or supervisors—could hire her.

       We find no evidence in this record from which a jury could find the elements of promissory

estoppel. Even if the pay notice could be said to constitute a clear and unambiguous promise—a

premise that we do not concede—there is no basis upon which a jury could find that Herbick’s

reliance on the notice was reasonable. In past years Herbick knew that she was not going to be

employed until she was specifically asked in the summer to teach for the upcoming school year. She

was never asked to do so in the summer of 2002. She was also aware that her two-day-a-week

position no longer existed because it had been combined with another part-time position into a full-

time job. Thus she knew that she could no longer work only two days per week as she had in the


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past and as she expressly advised the superintendent she wanted to continue to do. Therefore, she

could not reasonably have thought on August 20, 2002, when she purchased supplies and spent a

day at the school preparing the classroom for the upcoming year, that she was employed for the

2002-2003 school year. The district court properly granted summary judgment to the Board on this

claim.

                                         V. Conclusion

         For the foregoing reasons, we AFFIRM the judgment of the district court granting summary

judgment to the Board on Herbick’s ADEA and state-law age discrimination claims and promissory

estoppel claim.




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