                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0427n.06

                                            No. 09-3924

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                       FILED

LAUREN JUSTINE PALMER,                            )                               Jun 28, 2011
                                                  )                         LEONARD GREEN, Clerk
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
REBECCA CACIOPPO, et al.,                         )    NORTHERN DISTRICT OF OHIO
                                                  )
       Defendants-Appellees.                      )


Before: SILER, CLAY, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Petitioner Lauren Palmer appeals a district

court order granting summary judgment to respondents Rebecca Cacioppo, Kathy Hooper, and the

Akron Board of Education (the “Board”). She contends that the district court erred in granting

summary judgment on the following claims: (1) denial of her right to medical leave under the Family

and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; (2) unreasonable search and seizure

in violation of the Fourth Amendment, pursuant to 42 U.S.C. § 1983; and (3) quid pro quo sexual

harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e

et seq. For the reasons that follow, we affirm the district court.

                                                  I.

       Petitioner Lauren Palmer is a former employee of the Board, where she worked for thirteen

years, primarily as a secretary at Glover Elementary School (“Glover”), until her termination on


                                                 -1-
No. 09-3924
Palmer v. Cacioppo

December 12, 2006. Respondents Cacioppo and Hooper were likewise employed by the public

school system, with Cacioppo serving as Glover’s principal and Hooper working as the coordinator

of support staff for the Board. Palmer reported to Glover in mid-August 2006, approximately two

weeks before the start of the school year, when she and Cacioppo were the only employees required

to be on the school premises. The events giving rise to this litigation stem, in part, from Palmer’s

interactions with Cacioppo in the weeks before school began.

       On one occasion during this time period, Cacioppo invited Palmer to join her at Strickland’s,

a local ice cream shop. Although the ensuing circumstances are disputed by the parties, Palmer

claims that Cacioppo requested that they sit in a secluded area and made sexual advances towards

Palmer, including licking an ice cream cone in a sexually explicit manner and suggesting that they

engage in sexual acts. After rejecting Cacioppo’s advances, Palmer alleges that she was repeatedly

harassed by Cacioppo, who denigrated her work performance in emails to other people, including

Hooper, and prevented her from timely completing kindergarten student enrollment. Palmer did not

file an official complaint with the Akron School District concerning the alleged sexual harassment

by Cacioppo, nor did she immediately report the incident to anyone. Palmer estimates, however, that

she later informed several people of the harassment sometime in September, including her general

practitioner, Dr. Ann DiFrangia; her attorney; her union representative; and Dr. Connie Hathorn, the

Executive Director of Human Resources for Akron Public Schools. Neither Palmer nor Hathorn

pursued the matter.1


       1
         Palmer attributes her failure to file a formal harassment complaint in this matter to her
distrust of the Board, who did not pursue Palmer’s sexual harassment claim in a prior, unrelated

                                                -2-
No. 09-3924
Palmer v. Cacioppo

       Shortly thereafter, Palmer missed numerous days of work; she was absent from September

1 to November 10, 2006. The parties contest whether some of these absences were authorized, in

particular Palmer’s trip to Jamaica from September 5–8. When Palmer failed to report to work on

September 5, Cacioppo sought the assistance of Sharon Null, who also worked as a secretary for the

public schools, to aid with student enrollment at Glover. Null reported to Hooper that “no one ha[d]

been enrolled” in Glover’s enrollment system and that “attendance ha[d] not been entered thus far

this school year,” apparently implying that Palmer had neglected her job duties.

       Though the exact dates are not clear from the record, the respondents learned at some time

around the start of the school year that Palmer had pled guilty in municipal court on August 9, 2006,

to misdemeanor possession of marijuana and, in addition to being subject to a fine and a suspended

driver’s license, was required to write an essay concerning the dangers of marijuana. The

respondents further learned that a bench warrant had issued for Palmer on August 26, 2006, for

failure to timely complete the essay; this warrant was later recalled when Palmer submitted her essay

within an extended deadline of September 11, 2006. Hooper contends that, sometime between

August 26 and September 11, Palmer falsely told both Hooper and Hathorn that she had satisfied her

sentence when, in fact, she had not.

       On September 22, 2006, the Board held a due process hearing, as required by Cleveland

Board of Education v. Loudermill, to address Palmer’s continued absence from work, her


matter. In the prior incident, in which an unidentified male caller left a message on her husband’s
work phone claiming to have engaged in sexual activity with Palmer, the Board determined that it
could not positively identify the caller. Although the Board informed Palmer that she could file a
report with the local police department, she did not do so.

                                                 -3-
No. 09-3924
Palmer v. Cacioppo

unapproved absences on September 5–8, the misdemeanor drug conviction, and Palmer’s related

misrepresentations to Hooper and Hathorn concerning the satisfaction of her sentence. 470 U.S. 532,

546 (1985) (providing public employees a constitutional right to pre-termination due process). Both

Hooper and Hathorn attended the Loudermill hearing, as did Palmer and her union representatives.

At the hearing, the Board characterized Palmer’s conduct as a violation of the employee attendance

policy; insubordination by virtue of making false statements to administrators; and, with regard to

the misdemeanor conviction, conduct unbecoming an employee of the Board. The parties then

entered into a “last chance agreement” in which Palmer agreed to: (1) take an unpaid absence for

September 8, 2006, in lieu of a one-day suspension without pay; (2) provide updated physician’s

statements to Hooper regarding her absences starting on September 18; (3) submit to random drug

testing for one year; (4) participate in drug counseling at Tri-County Employee Assistance Program

(“EAP”); and (5) be reassigned to another school pursuant to her request. On September 26, Palmer

received a letter memorializing the terms of the “last chance agreement” and directing her to respond

if she did “not agree with the statements made in [the] conference summary letter.” Palmer neither

responded to the letter nor informed the Board that the suspension of her driver’s license would

prevent her from attending drug counseling or appearing for random drug testing.

       On October 13, Palmer entered Glover with the stated purpose of attending a PTA meeting,2

at which time a confrontation between Palmer and Cacioppo ensued. The parties dispute the nature



       2
        The Board states that, as discussed at her Loudermill hearing, Palmer was no longer
permitted to enter Glover. Palmer disputes this interpretation, and we find no evidence in the record
supporting such a prohibition.

                                                 -4-
No. 09-3924
Palmer v. Cacioppo

of this confrontation; Palmer alleges that Cacioppo took her into Cacioppo’s office, prevented her

from leaving, and threatened her with undisclosed consequences if she pursued a sexual harassment

claim. Cacioppo states that she instructed Palmer to leave the premises and that Palmer refused to

do so, instead retreating to a different part of the building. Both versions apparently involved yelling

and foul language. Thereafter, building security was contacted, and Palmer’s car was towed.

       Following Palmer’s reassignment to a new school, Hooper informed her that she was required

to submit to drug testing on a date of her choosing before returning to work. Palmer selected

November 10, 2006; submitted to testing on this date; and reported to work on November 13, but

missed a scheduled drug counseling session at Tri-County EAP. On November 16, Hooper received

a call from the Community Health Center stating that Palmer had tested positive for opiates and

marijuana; she then sent a letter to Palmer apprising her that a second Loudermill hearing would be

convened on November 30 to discuss Palmer’s drug test and related substance abuse,

insubordination, and contract violations. Although her union representatives were present, Palmer

did not attend the second Loudermill hearing. At a meeting on December 12, the Board accepted

the recommendation of Hooper and Hathorn to terminate Palmer’s employment effective December

12, 2006.

                                                  II.

       We review de novo a district court’s grant of summary judgment. Hamilton v. Starcom

Mediavest Group, Inc., 522 F.3d 623, 627 (6th Cir. 2008). “Summary judgment is proper where no

genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The moving party bears the initial burden of production. Celotex Corp. v.

                                                  -5-
No. 09-3924
Palmer v. Cacioppo

Catrett, 477 U.S. 317, 323 (1986). “After the moving party has met its burden, the burden shifts to

the nonmoving party, who must present some ‘specific facts 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 Lobby, Inc., 477 U.S. 242, 248 (1986)). “[I]f the nonmoving party fails to make a

sufficient showing on an essential element of the case with respect to which the nonmovant has the

burden, the moving party is entitled to summary judgment as a matter of law.” Thompson v. Ashe,

250 F.3d 399, 405 (6th Cir. 2001).

       In evaluating a motion for summary judgment, the district court must construe all reasonable

inferences 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, 587 (1986)). The central issue is “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52.

                                                A.

       Palmer claims that Hooper unlawfully interfered with her rights under the FMLA, 29 U.S.C.

§ 2601 et seq., by authorizing her medical leave and subsequently recommending her termination,

in part for “excessive absenteeism,” based upon these absences. The district court granted summary

judgment to the respondents on the grounds that there was no evidence in the record that Palmer was

denied FMLA-qualified leave and that Palmer’s termination did not stem from any approved

absences, but rather was due to her repeated failure to submit timely absence forms. We agree.

       The FMLA entitles eligible employees to twelve weeks of unpaid leave within a twelve-

month period when, among other qualifying reasons, the employee suffers from “a serious health

                                                -6-
No. 09-3924
Palmer v. Cacioppo

condition that makes the employee unable to perform the functions of the position.” 29 U.S.C. §

2612(a)(1)(D); see also 29 U.S.C. § 2611(11) (defining a “serious health condition” as “an illness,

injury, impairment, or physical or mental condition” that requires either inpatient care or “continuing

treatment by a health care provider”). Enacted to enhance job security for employees suffering from

serious health conditions, the FMLA “renders it ‘unlawful for any employer to interfere with,

restrain, or deny the exercise of or the attempt to exercise any right’ that it affords.” Brenneman 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 regulations further prohibit “an employer from

discriminating or retaliating against an employee . . . for having exercised or attempted to exercise

FMLA rights.” 29 C.F.R. § 825.220(c). In particular, “employers cannot use the taking of FMLA

leave as a negative factor in employment actions, such as . . . disciplinary actions.” Id. “Employers

who violate § 2615 are ‘liable to any eligible employee affected’ for damages and ‘for such equitable

relief as may be appropriate.’” Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003)

(quoting 29 U.S.C. § 2617(a)(1)).

       To prevail on a claim alleging unlawful interference with FMLA rights, the employee must

establish that “(1) [s]he is an ‘[e]ligible employee,’ 29 U.S.C. § 2611(2); (2) the defendant is an

‘[e]mployer,’ 29 U.S.C. § 2611(4); (3) [she] was entitled to leave under the FMLA, 29 U.S.C. §

2612(a)(i); (4) [she] gave the employer notice of [her] intention to take leave, 29 U.S.C. §

2612(e)(1); and (5) the employer denied [her] FMLA benefits to which s[he] was entitled.” Cavin,

346 F.3d at 719. If leave is foreseeable, “[a]n employee must provide the employer at least 30 days

advance notice before FMLA leave is to begin.” 29 C.F.R. § 825.302(a). When leave is not

                                                 -7-
No. 09-3924
Palmer v. Cacioppo

foreseeable, “an employee must provide notice to the employer as soon as practicable” and “must

comply with the employer’s usual and customary notice and procedural requirements for requesting

leave, absent unusual circumstances.” 29 C.F.R. § 825.303(a), (c). If, however, no unusual

circumstances obtain, and the employee has not complied with the employer’s customary procedures

for requesting leave, “FMLA-protected leave may be delayed or denied.” 29 C.F.R. § 825.303(c).

Here, Palmer has not alleged that any unusual circumstances hampered her ability to comply with

the Board’s customary leave procedures.

       Based upon these requirements, Palmer has not stated a colorable claim for unlawful

interference with her FMLA rights. Aside from the conclusory assertions in her absence forms and

deposition testimony that she was “ill” or was “having medical problems,” the record is devoid of

evidence demonstrating that Palmer suffered from a serious health condition, a threshold requirement

under the FMLA. Palmer does not press this point on appeal. Rather, she argues that “Hooper

signed and approved each of the days as valid medical leave.” This argument, however, ignores the

fact that not all “approved” medical leave is FMLA-qualified leave; pursuant to 29 U.S.C. §

2612(a)(1)(D), an eligible employee seeking FMLA leave must suffer from “a serious health

condition that makes the employee unable to perform the functions of [her job].” Although Palmer

disputes her termination for “authorized medical leave,” she does not allege on appeal that she

suffered from a serious health condition and, accordingly, has failed to demonstrate entitlement to

FMLA leave.

       Nor has Palmer demonstrated that the Board denied any FMLA benefit that she was owed.

Indeed, the record reflects that Palmer received compensation and benefits for her medical absences,

                                                -8-
No. 09-3924
Palmer v. Cacioppo

notwithstanding her untimely absence forms. Instead, Palmer argues that Hooper approved her

various absences and then recommended her termination for excessive absenteeism, thereby

interfering with her exercise of FMLA rights. This contention is without merit. As reflected in her

discharge letter on December 12, 2006, Palmer was terminated for a variety of infractions, including

excessive absenteeism or tardiness, absence without leave, misconduct toward other city employees,

insubordination, and conduct unbecoming a public employee. In her deposition, Hooper explained

that the charge of excessive absenteeism pertained to Palmer’s repeated failure to file her absence

forms in a timely manner and to her unauthorized absence on September 5 and that Palmer’s

termination was not based upon her medical absences. The termination letter likewise supports this

interpretation; it states that “Mrs. Palmer was absent from September 1 through November 10, 2006

and did not file absence forms in a timely manner.” In sum, Palmer has not demonstrated that she

was unlawfully denied any FMLA benefits, nor has she shown that she was terminated for taking

medical leave. Accordingly, we affirm the district court’s grant of summary judgment with respect

to Palmer’s FMLA claim.

                                                B.

       Palmer next argues under 42 U.S.C. § 1983 that Hooper violated her Fourth Amendment

rights against unreasonable search and seizure by demanding that she submit to drug testing as a

condition of continued employment.        The district court granted summary judgment to the

respondents on the grounds that Palmer voluntarily entered into the “last chance agreement” in which

she agreed to undergo random drug testing for one year. It further noted that, given Palmer’s

conviction for misdemeanor marijuana possession, the drug testing requirement served as a

                                                -9-
No. 09-3924
Palmer v. Cacioppo

reasonable mechanism for enforcing the Board’s policy prohibiting substance abuse by school

employees while at work.

       The Fourth Amendment safeguards the privacy of individuals against unwarranted

governmental intrusions by providing, in pertinent part, that “the right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated.” U.S. Const. amend. IV. “In assessing whether the right against unreasonable searches and

seizures has been violated, the court must consider whether the action is ‘attributable to the

government,’ and amounts to a ‘search’ or ‘seizure’ for Fourth Amendment purposes.” Relford v.

Lexington-Fayette Urban Cnty. Gov’t, 390 F.3d 452, 457 (6th Cir. 2004) (quoting Skinner v. Ry.

Labor Exec. Ass’n, 489 U.S. 602, 614 (1989)). Here, the drug test at issue is undisputedly

attributable to the government, as it was ordered by the Board pursuant to Palmer’s “last chance

agreement.”

       It “is now well-settled that drug testing which utilizes urinalysis is a ‘search’ that falls within

the ambit of the Fourth 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. Winters, 385 F.3d 1003, 1007 (6th Cir. 2004)

(noting that “[i]t is beyond dispute that government ordered collection and testing of urine samples

effects a search within the meaning of the Fourth Amendment as such tests intrude upon reasonable

expectations of privacy that society has long recognized as reasonable”). Because drug testing

constitutes a search under the Fourth Amendment, “we must therefore review the [Board’s] policy

for reasonableness, ‘which is the touchstone of the constitutionality of a government search.’”

Winters, 385 F.3d at 1007 (quoting Bd. of Educ. v. Earls, 536 U.S. 822, 828 (2002)). To determine

                                                  -10-
No. 09-3924
Palmer v. Cacioppo

whether the drug testing requirement contained in the “last chance agreement” was reasonable, we

balance the public interest in this testing against Palmer’s privacy 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 agreeing to submit to random drug testing for one year, her

consent was in fact “the product of coercion,” apparently because she would have been terminated

if she refused the conditions of employment contemplated by the “last chance agreement.” This

argument is without merit. Indeed, we have upheld policies permitting both suspicion-less and

suspicion-based drug testing of employees who work in the highly-regulated field of public school

employment, irrespective of consent. In Knox County Education Association, this circuit had

occasion to evaluate the constitutionality of the Knox County Board of Education’s suspicion-less

and suspicion-based drug testing policies of school employees against a facial Fourth Amendment

challenge. 158 F.3d at 384–85. We observed that employee consent to the testing policy at issue

was not required; rather, “the privacy interest for the employees not to be tested [was] significantly

diminished by the level of regulation of their jobs and by the nature of the work itself.” Id. at 384.

As to the constitutionality of suspicion-based testing, we concluded that the policy comported with

the Fourth Amendment’s reasonableness requirement because it was “clearly based upon a finding

of individualized suspicion.” Id. at 385.

       Knox County Education Association is controlling here, and this case presents an even

stronger case for finding no Fourth Amendment violation. The Board’s one-year random drug

testing requirement was reasonable, particularly in light of Palmer’s conviction for misdemeanor

                                                 -11-
No. 09-3924
Palmer v. Cacioppo

marijuana possession. The record reflects that the Board enacted various administrative regulations

restricting substance abuse among school employees while on duty. The drug-free workplace policy

states that “[a]ll employees as a condition of employment are required to abide by the Board policy

. . . related to a drug-free workplace and to submit to the substance abuse prevention and testing

program.” The Board’s substance abuse policy further provides that “[b]eing under the influence

of . . . drugs while on duty, on school property, or at a school related activity/event is not

acceptable.” Moreover, “reporting to work under the influence of . . . drugs . . . will result in

appropriate corrective or disciplinary action as determined by the Board, up to and including

termination.” Finally, although it offered an employee assistance program, the Board stated that it

“cannot guarantee that the staff member’s use of illegal drugs . . . will not adversely impact the staff

member’s employment status through disciplinary measures.”

        Given Palmer’s marijuana conviction, the Board’s concern that she might report to work

under the influence was well-founded. See, e.g., Knox Cnty. Educ. Ass’n, 158 F.3d at 384–85

(upholding a suspicion-based drug testing policy that, in pertinent part, permitted drug testing of

school employees who violated “criminal drug law statutes involving the use of illegal drugs”

because “the testing is clearly based upon a finding of individualized suspicion”). And, like the

employees in Knox County Education Association, Palmer’s privacy interest was significantly

diminished by the nature of her job. Id. at 384. Moreover, her consent to the agreement also served

to reduce her privacy interest further.3 See Norris v. Premier Integrity Solutions, Inc., — F.3d —,


        3
         In her brief, Palmer argues that her consent was involuntary because it was obtained upon
threat of termination or, in the alternative, that she withdrew consent by “refusing” to submit to the

                                                 -12-
No. 09-3924
Palmer v. Cacioppo

No. 09-6252, 2011 WL 1261188, at *2 (6th Cir. 2011) (noting that defendant’s expectations of

privacy were diminished by his consent “to random drug testing as a condition of his pretrial

release”).

        Balancing the public interest in Palmer’s drug testing against her expectation of privacy, and

construing all reasonable inferences in Palmer’s favor, we conclude that the one-year random drug

testing requirement served as a reasonable means of ensuring her compliance with the Board’s drug-

free workplace policy and did not violate her Fourth Amendment rights. Accordingly, we affirm the

district court’s grant of summary judgment.

                                                   C.

        In her final claim, Palmer argues that her refusal to consent to Cacioppo’s sexual advances

resulted in Cacioppo’s “hound[ing] her on a daily bases [sic] about her work” and eventually caused

her termination.    The district court granted summary judgment to the respondents, finding

“absolutely no evidence of a connection between the alleged harassment and [Palmer’s]

termination,” and we agree.




drug testing. The record, however, does not support these arguments. In her deposition, when asked
whether she had agreed to submit to random drug testing for one year at the September 22 hearing,
Palmer repeatedly answered, “yes.” By correspondence dated September 26, the Board reiterated
the terms of the “last chance agreement” and invited Palmer to reply with any written objections by
October 3 if she did “not agree with the statements made in this . . . letter,” including the drug testing
requirement. Yet, Palmer did not file any objections. Furthermore, Palmer’s deposition testimony
makes clear that she did not “refuse” 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 occasions
because her driver’s license was suspended, and she did not have transportation.

                                                  -13-
No. 09-3924
Palmer v. Cacioppo

        Title VII of the Civil Rights Act of 1964 prohibits an employer from “discriminat[ing]

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Under Title VII,

an employer may not engage in quid pro quo sexual harassment, “which occurs when an employee’s

submission to unwanted sexual advances becomes either a condition for the receipt of job benefits,

or the means to avoid an adverse employment action.” Howington v. Quality Rest. Concepts, LLC,

298 F. App’x 436, 440 (6th Cir. 2008). To prevail on a claim alleging quid pro quo sexual

harassment, an employee must demonstrate:

               1) that the employee was a member of a protected class; 2) that the
               employee was subjected to unwelcomed sexual harassment in the
               form of sexual advances or requests for sexual favors; 3) that the
               harassment complained of was on the basis of sex; 4) . . . that the
               employee’s refusal to submit to the supervisor’s sexual demands
               resulted in a tangible job detriment; and 5) the existence of
               respondeat superior liability.

Id. at 441.

        Although Palmer contends that Cacioppo “staged” her termination based upon Palmer’s

“refusal to have sex with her,” she has not presented any evidence suggesting a causal relationship

between the alleged sexual harassment and her discharge months later.4 Indeed, Palmer’s notice of



        4
         The dissent suggests that the defendants have supported their motion with insufficient
evidence. This reasoning misunderstands the defendants’s burden. Under applicable summary
judgment analysis, defendants may simply point to plaintiff’s lack of evidence to support a necessary
element of her claim. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (stating that “the burden
on the moving party may be discharged by ‘showing’—that is, point out to the district court—that
there is an absence of evidence to support the nonmoving party’s case”). If the plaintiff has failed
to adduce such evidence, summary judgment is properly granted. Thompson, 250 F.3d at 405.

                                                -14-
No. 09-3924
Palmer v. Cacioppo

termination makes perfectly clear that her discharge was premised upon numerous infractions,

including her unauthorized absence on September 5; her repeated submission of untimely absence

forms; and her failure to attend a scheduled drug counseling session at Tri-County EAP, as required

by the “last chance agreement.” Furthermore, the “last chance agreement” states explicitly that

Palmer’s failure to abide by the agreed-upon conditions of employment—including drug

counseling—could “result in further disciplinary action to include . . . termination.” While Palmer

asserts in her brief that “Hooper clearly acted in complicity with Cacioppo to have [her] terminated,”

she has not presented any evidence supporting such a claim.

       Because she has failed to demonstrate a causal relationship between her refusal to submit to

Cacioppo’s alleged sexual advances and her termination, Palmer’s claim of quid pro quo sexual

harassment is without merit. Accordingly, we affirm the district court’s grant of summary judgment.

                                                 III.

       For these reasons, we affirm the district court’s judgment in all respects.5




       5
          Palmer also argues that the district court relied improperly upon various forms of hearsay
in granting summary judgment to the respondents. This argument is without merit. Although the
district court referenced Null’s email to Cacioppo regarding student enrollment in the statement of
facts, it did not rely upon hearsay statements in its reasoning supporting summary judgment.

                                                -15-
No. 09-3924
Palmer v. Cacioppo

        CLAY, Circuit Judge, dissenting. Neither the record in this case nor the applicable law

support the district court’s grant of summary judgment for Defendants on Plaintiff’s claims arising

under 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §

2000e-2(a)(1). We should therefore reverse and remand for further proceedings. Because the

majority erroneously affirms the judgment of the district court as explained below, I respectfully

dissent.1

        I.     Section 1983 Claim

        In her claim under 42 U.S.C. § 1983, Plaintiff alleges that Defendant Hooper violated her

Fourth Amendment right to be free from unreasonable search and seizure by directing her to undergo

drug testing. The district court granted summary judgment for Hooper based on a finding that

Plaintiff consented to the drug testing,2 and that the drug testing was reasonable.

        Because Plaintiff is a public employee and submitted to the drug testing at the behest of her

employer, the drug testing implicates the Fourth Amendment and must therefore be reasonable to

pass constitutional muster. See, e.g., Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 614


        1
         With respect to Plaintiff’s claim arising under the Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2601 et seq., Plaintiff did not appeal the district court’s determination that she does not
have a “serious medical condition,” a threshold requirement under the FMLA. See Branham v.
Gannett Satellite Info. Net., Inc., 619 F.3d 563, 568 (6th Cir. 2010). Therefore, the propriety of the
entry of summary judgment on Plaintiff’s FMLA claim need not be addressed.
        2
         It is unclear whether a public employee may validly consent to an otherwise unreasonable
drug testing policy, but the issue was neither briefed by the parties, nor discussed by the district
court, and consequently we need not consider the issue for purposes of this appeal. See, e.g., Nat’l
Fed’n of Fed. Employees v. Weinberger, 818 F.2d 935, 943 (D.C. Cir. 1987) (“[A] search otherwise
unreasonable cannot be redeemed by a public employer’s exaction of a ‘consent’ to the search as a
condition of employment.”) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

                                                 -16-
No. 09-3924
Palmer v. Cacioppo

(1989). Reasonableness in this context is determined by balancing the public interest in such testing

with the privacy rights of the individuals subject to the testing. See, e.g., Nat’l Treasury Employees

Union v. Von Raab, 489 U.S. 656, 670-71 (1989); Knox Cnty. Educ. Assoc. v. Knox Cnty. Bd. of

Educ., 158 F.3d 361, 373 (6th Cir. 1998) (hereinafter “Knox County”).

        The majority in this case holds that the school board’s “one-year random drug testing

requirement was reasonable, particularly in light of Palmer’s conviction for misdemeanor marijuana

possession.” (Maj. Op. at 11-12.) The majority contends that “[g]iven [Plaintiff’s] marijuana

conviction, the Board’s concern that she might report to work under the influence was well-

founded,” (id. at 12), and that the drug testing requirement “served as a reasonable means of ensuring

her compliance with the Board’s drug-free workplace policy.” (Id. at 13.)

        Although the school board may have had a strong interest in requiring drug testing, as the

majority appears to argue, the majority abruptly ends its inquiry on that point, resulting in a truncated

analysis at odds with prevailing case law. See Von Raab, 489 U.S. at 670-71; Knox County, 158

F.3d at 371. Contrary to the majority’s apparent view, drug testing of a public school employee,

such as Plaintiff, is not per se reasonable under the Fourth Amendment any time the school board

has an individualized suspicion of the employee’s off campus drug use. Instead, a court must

balance the public interest in drug testing with a second factor, namely the “employee’s privacy

rights.” Knox County, 158 F.3d at 379-80; see also Chandler v. Miller, 520 U.S. 305, 314-16 (1997).

Without adequately considering the weight of Plaintiff’s privacy rights, and therefore being unable

to properly weigh this countervailing factor against the public interest, the majority has no legal basis

to hold that the drug testing is “reasonable.”

                                                  -17-
No. 09-3924
Palmer v. Cacioppo

       To accord appropriate weight to Plaintiff’s privacy rights, we must consider: 1) Plaintiff’s

reasonable expectation of privacy based on the “degree to which the industry in question is

regulated,” and 2) the intrusiveness of the drug testing scheme. Knox County, 158 F.3d at 379-80.

Because the record is woefully undeveloped as to these issues, and consequently genuine issues of

material fact remain as to the reasonableness of the drug testing at issue, the majority errs in

affirming the district court’s grant of summary judgment on the basis that the drug testing was

reasonable.

       First, as to Plaintiff’s reasonable expectation of privacy as a school employee, public

education is a highly regulated environment, which may diminish a public school employee’s

reasonable expectation of privacy. See id. at 379. But the degree to which Plaintiff’s reasonable

expectation of privacy may have been diminished on account of her employment is unclear. Most

notably, the record contains no evidence of an official drug testing policy apart from one reference

in school board policies to the existence of an undescribed “testing program.” Additionally, the

policies contained in the record regulate only, as the majority concedes, “substance abuse among

school employees while on duty.” (Maj. Op. at 12.) Nothing in the policies contained in the record

purport to restrict an employee’s, such as Palmer’s, off campus marijuana use so long as it remains

unconnected with the workplace. (See id. (quoting school board policies, which apply: “while on

duty, on school property, or at a school related activity/event”).)

       The record is likewise silent regarding the extent to which other similarly situated employees

are or have been subjected to drug testing. The record contains no discernible evidence that the

school board provided notice to employees that its substance abuse policies applied to private

                                                 -18-
No. 09-3924
Palmer v. Cacioppo

activities unconnected with the workplace. Because the school board relied on Plaintiff’s alleged

marijuana use outside of the workplace to impose the drug testing requirement on Plaintiff, inquiry

into these undeveloped areas is necessary for the proper deposition of this claim.

        Second, the record is unilluminating regarding the issue of the intrusiveness of the drug

testing; the only information about the drug testing procedures is contained in a diagnostic document

that appears to report the results of Plaintiff’s drug test.3 The report is bare and unexplained; it

contains the names of eight substances tested for; the results for each substance, with the positive

test results indicating verification by “repeat analysis” without additional explanation; and the name

of the health center and diagnostic company, Quest Diagnostics, Inc., which appears to be a “DHHS

Certificated Laboratory.” The report also makes reference to “GC/MS Reporting Levels,” with

attendant levels, but neither the record nor the parties explain the significance of this information.

        The information contained in the unexplained report is insufficient to properly consider the

intrusiveness of the drug testing. See id. at 380-83, 385. To properly evaluate Plaintiff’s claim,

further inquiry is necessary into, among other things: 1) the specific procedures and protocols of the

drug testing, including the physical intrusiveness of the testing itself, the employee’s physical privacy

during the testing, and the qualifications of those performing the testing; 2) the need for the specific

tests performed; 3) the minimum threshold to trigger a positive test result; 4) the reliability of the

test results, including the existence and nature of any independent review or protections against false



        3
         Notably, this document was not proffered by Defendants for the purpose of showing the
reasonableness of the drug test. Defendants offered the report only as evidence of the reason for
Plaintiff’s termination. (Defs.’ Br. at 14-15.)

                                                  -19-
No. 09-3924
Palmer v. Cacioppo

positives caused by diagnostic errors or circumstances unrelated to illegal drug use, such as

prescribed medication; and 5) the degree to which the test results are maintained in confidence and

stored in a secure manner, including whether the results are available to law enforcement or used for

law enforcement purposes. Id.; see also Nat’l Fed’n of Fed. Employees-IAM v. Vilsack, – F. Supp.

3d –, 2011 WL 1296859, at *9-11 (D.C. Cir. Apr. 6, 2011). Without more evidence in the record

as to the nature and extent of the intrusiveness of the drug testing at issue, summary judgment was

not appropriate on the basis that the drug test was reasonable. See Knox County, 158 F.3d at 386

(remanding challenge to public employee alcohol testing because the record was insufficient).

        Accordingly, we should vacate the grant of summary judgment for Defendants on this claim,

and remand for further factual development and legal briefing prior to the district court considering

a motion for summary judgment. See, e.g., Penny v. Kennedy, 915 F.2d 1065, 1068 (6th Cir. 1990)

(en banc) (remanding Fourth Amendment challenge to city’s drug testing policy, opining: “we are

uncertain from the record here whether the . . . fourth amendment aspects of the actual carrying out

of the search . . . have been adequately addressed”).

        II.    Title VII Claim

        Plaintiff claims quid pro quo sexual harassment in violation of Title VII. The majority sets

forth the applicable legal standard, and it need not be repeated here. For purposes of this claim,

Plaintiff alleges that: 1) her rejection of sexual advances by Cacioppo caused her termination; 2)

Hooper aided the sexual harassment by Cacioppo; and 3) that the school board failed to protect

Plaintiff.



                                                -20-
No. 09-3924
Palmer v. Cacioppo

       In affirming the grant of summary judgment for Defendants, the majority concludes that

Plaintiff “has not presented any evidence suggesting a causal relationship between the alleged sexual

harassment and her discharge months later.” (Maj. Op. at 14.) The majority reasons that Plaintiff’s

notice of termination “makes perfectly clear that her discharge was premised upon numerous

infractions . . . .” (Id. at 14-15.) The majority then rejects Plaintiff’s argument that Hooper and

Cacioppo acted together as without evidentiary support. (Id.)

       Although glossed over by the majority, a review of the record makes clear that the district

court erred in granting summary judgment on Plaintiff’s Title VII claim because Defendants plainly

failed to meet their initial burden in moving for summary judgment, and there remain genuine issues

of material fact that preclude a grant of summary judgment.

       Defendants moved for summary judgment on the sole basis that Plaintiff “neither asserts nor

proves” the element of causation, for which Defendants contended that “no evidence” existed.

Defendants asserted that Plaintiff was terminated for failing her drug test and otherwise violating the

Last Chance Agreement. Although Defendants may satisfy their initial burden under Rule 56 by

pointing to the absence of evidentiary support for Palmer’s claim, see Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986), Defendants’ failed to meet their initial burden in this case, as explained below,

because Defendants failed to address, or even acknowledge the existence of, evidence tending to

support Palmer’s claim. See Hunter v. Caliber Sys., Inc., 220 F.3d 702, 726 (6th Cir. 2000) (“If a

moving party fails to carry its initial burden of production, the non-moving party has no obligation

to produce anything.”) (internal quotations and citation omitted).



                                                 -21-
No. 09-3924
Palmer v. Cacioppo

       Defendants offered only the following record evidence in support of their motion below: 1)

an unexplained, general citation to 52 pages of exhibits; 2) citation to deposition testimony wherein

Plaintiff admits to marijuana use during the period in which she was employed, although not while

on the job (Defendants did not explain the relevance of this cited testimony to the Title VII claim);

3) citation to deposition testimony wherein Plaintiff purports to admit that she was fired because of

her positive drug test (Defendants did not explain the relevance of Plaintiff’s subjective belief about

her termination to the Title VII claim); and 4) citation to deposition testimony wherein Plaintiff

admits her inability to produce evidence that Hooper knew about the allegations of sexual

harassment.

       Neither this record evidence nor Defendants’ arguments below or on appeal adequately

address Plaintiff’s allegations against each specific Defendant. With regard to Cacioppo, Defendants

did not directly address Plaintiff’s claim that after she rejected the “unwelcome[d] sexual advances,

Cacioppo repeatedly denigrated her work performance, harassed and beleaguered her, and such

actions ultimately le[d] to and [were] the proximate cause of Palmer being discharged from her

employment of 13 years.” (Am. Compl. ¶ 2; see also Madden v. Chattanooga City Wide Serv. Dep’t,

549 F.3d 666, 677 (6th Cir. 2008) (holding that an employer’s decision to terminate the plaintiff

based on information supplied by a supervisor satisfies the causation requirement); Wilson v. Stroh

Cos., Inc., 952 F.2d 942, 946 (6th Cir. 1992) (holding that the “determinative question is whether

[the plaintiff] has submitted evidence that [a supervisor’s] . . . animus was a cause of the

termination.”).)



                                                 -22-
No. 09-3924
Palmer v. Cacioppo

       Hooper’s liability was likewise all but ignored by Defendants. Defendants’ argument to the

district court consisted only of the following sentence: “[i]t is altogether unclear why Hooper is a

party as there is no evidence that Hooper even knew of Palmer’s allegations against Cacioppo.”

(Mot. at 15 (citing to unexplained deposition testimony).) Defendants’ assertion, however, ignored

Plaintiff’s deposition testimony that she believes Hooper heard about the allegations from another

administrator, and that Plaintiff claims to have herself informed Hathorn of the allegations.

Moreover, any lack of actual knowledge fails to negate Plaintiff’s allegation that Hooper

“intentionally, recklessly, or negligently aided” in the sexual harassment. (Am. Compl. ¶ 3

(emphasis added).)

       Finally, in moving for summary judgment, Defendants made no reference at all to the issue

of the liability of the school board, or otherwise addressed the allegations against the school board

contained in the Amended Complaint. (See id. ¶¶ 4-6.)

       Accordingly, in the face of unmet allegations that appear to have record support, and the

numerous unresolved material factual disputes that appear to remain, we should reverse the grant of

summary judgment on this claim.

       III.    Conclusion

       For these reasons, I respectfully dissent from the majority’s disposition of Plaintiff’s claims

arising under 42 U.S.C. § 1983, and Title VII. Because it is unnecessary to address the viability of

Plaintiff’s FMLA claim, for the reasons set forth in footnote 1, supra, I decline to join the majority

opinion’s discussion of the FMLA issue.



                                                -23-
