           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2     Gragg v. Somerset                        No. 02-6387
        ELECTRONIC CITATION: 2004 FED App. 0190P (6th Cir.)                       Technical College, et al.
                    File Name: 04a0190p.06
                                                                                                _________________
UNITED STATES COURT OF APPEALS                                                                      COUNSEL
                   FOR THE SIXTH CIRCUIT                                    ARGUED: Winter R. Huff, LAW OFFICES OF JOHN G.
                     _________________                                      PRATHER, Somerset, Kentucky, for Appellant. D. Brent
                                                                            Irvin, OFFICE OF THE ATTORNEY GENERAL, Frankfort,
 SHARON L. GRAGG,            X                                              Kentucky, for Appellees. ON BRIEF: Winter R. Huff,
          Plaintiff-Appellant,-                                             LAW OFFICES OF JOHN G. PRATHER, Somerset,
                              -                                             Kentucky, for Appellant. D. Brent Irvin, OFFICE OF THE
                              -                No. 02-6387                  ATTORNEY GENERAL, Frankfort, Kentucky, for
            v.                -                                             Appellees.
                               >
                              ,
 SOMERSET TECHNICAL                                                                             _________________
                              -
 COLLEGE , et al.,            -                                                                     OPINION
       Defendants-Appellees. N                                                                  _________________

          Appeal from the United States District Court                        BOYCE F. MARTIN, JR., Circuit Judge. Sharon L. Gragg
         for the Eastern District of Kentucky at London.                    appeals the district court’s adverse award of summary
        No. 97-00457—Karen K. Caldwell, District Judge.                     judgment on numerous claims arising from her layoff from
                                                                            the Kentucky Workforce Development Cabinet. We
                     Argued: March 9, 2004                                  AFFIRM.

               Decided and Filed: June 22, 2004                                 I. FACTUAL AND PROCEDURAL BACKGROUND

   Before: MARTIN and CLAY, Circuit Judges; MILLS,                            Prior to her October 1996 layoff from the Kentucky
                   District Judge.*                                         Workforce Development Cabinet’s Department of Technical
                                                                            Education at the age of fifty-five, Gragg had worked as a
                                                                            regional educational consultant assigned specifically to the
                                                                            Kentucky-Tech Somerset campus. Gragg’s duties in that
                                                                            capacity included performing a comprehensive study of the
                                                                            Kentucky-Tech Somerset school every five years,
                                                                            coordinating the school’s certified nurse aide program,
                                                                            scheduling nurse aide classes and administering tests. Dr.
                                                                            Carol Ann VanHook was Gragg’s immediate supervisor; Dr.
    *
                                                                            Ann W. Cline, the Director of the southern region of the
     The Hon orable R ichard M ills, United States District Judge for the   Kentucky-Tech schools, was VanHook’s immediate
Central District of Illinois, sitting by designation.

                                   1
No. 02-6387                          Gragg v. Somerset         3    4    Gragg v. Somerset                            No. 02-6387
                                Technical College, et al.                Technical College, et al.

supervisor; William Huston was the Commissioner of the              appeal for lack of jurisdiction. The Kentucky Court of
Department; and Delmus Murrell was the Deputy                       Appeals upheld that dismissal.
Commissioner of the Department, as well as Secretary of the
Board for Adult and Technical Education.                               Gragg next sought and obtained from the Equal
                                                                    Employment Opportunity Commission a right to sue letter,
  In early 1996, the Kentucky General Assembly reduced the          and she proceeded to file a complaint in federal district court
Department’s authorized full-time workforce, thereby                against Somerset Technical College, Cline, VanHook,
necessitating the elimination of a number of positions.             Huston, Murrell and other defendants. The crux of Gragg’s
Huston circulated memoranda to certain high-level                   complaint, which asserted numerous federal and state claims,
administrators in April, asking for assistance in determining       is that her position was chosen for abolition because of her
which positions should be eliminated in order to comply with        age and gender, and in retaliation for her criticism of the
the legislatively-mandated workforce reduction. According           school and the defendants. Gragg’s retaliation claims are
to Huston, this determination was to be made with                   based upon the following four allegations of speech:
consideration of the following factors: (1) “Savings by             (1) Gragg criticized Somerset’s accreditation process,
restructuring;” (2) “Program Assessment – Progress made             including VanHook’s conduct in connection with the process;
during last 12 months;” (3) “Analyze staffing patterns in           (2) Gragg advised an employee funded under the federal Job
Frankfort, Regional Office and School levels;” and (4) “Can         Training Partnership Act that she should file a complaint
necessary functions be combined.”                                   against VanHook for allegedly misusing federal funds by
                                                                    assigning a secretary paid out of those funds to a program not
   Based in part on Cline’s recommendation, Huston                  covered by the federal monies; (3) after Gragg’s pre-
determined that Gragg’s position, among others, should be           termination hearing, her attorney sent a letter to the Cabinet’s
abolished. The Department agreed, and terminated the                general counsel criticizing the process and the criteria used in
regional educational consultant position that Gragg had held.       determining which positions to terminate; and (4) Gragg
Gragg’s was one of eight positions that were ultimately             complained to VanHook that she and other employees should
terminated; four of these positions had been held by women,         receive overtime pay for their work on a particular project.
and four by men. Following her layoff, Gragg applied for
other positions within the Department. She was eventually              On January 29, 2001, the district court granted summary
re-hired by the Kentucky-Tech school system and currently           judgment in favor of the defendants on Gragg’s federal and
works at the “Northpoint (prison) school.”                          state age and gender discrimination claims, federal and state
                                                                    due process claims, state whistleblower claim and
  Gragg challenged her layoff by filing in state court an           constitutional challenge to section 151B.086 of the Kentucky
administrative appeal under section 151B.086 of the                 Revised Statutes. The court also awarded summary judgment
Kentucky Revised Statutes, which permits an employee,               in favor of the defendants on Gragg’s speech retaliation claim
within thirty days of the effective date of her layoff, to appeal   concerning her request for overtime pay, holding that Gragg’s
the layoff on the ground that applicable statutory procedures       speech was not constitutionally protected. The defendants’
were not followed. The trial court found that Gragg’s appeal        summary judgment motion was denied, however, as to the
was untimely filed, however, and accordingly dismissed the          other three speech retaliation claims, and the defendants filed
                                                                    an interlocutory appeal to this Court challenging that ruling.
No. 02-6387                         Gragg v. Somerset         5   6        Gragg v. Somerset                                No. 02-6387
                               Technical College, et al.                   Technical College, et al.

On interlocutory appeal, this Court held that the speech              community....’ The inquiry is made based on by ‘the
alleged in those three claims was not constitutionally                content, form, and context of a given statement, as
protected and, accordingly, ordered that summary judgment             revealed by the whole record.’ Speech does not
be entered for the defendants on those claims. Gragg v.               generally touch on a matter of public concern, as that
Kentucky Cabinet for Workforce Dev., 289 F.3d 958, 967 (6th           requirement has been interpreted, where its aim is to air
Cir. 2002). On remand, the district court entered an order,           or remedy grievances of a purely personal nature.
without opinion, dismissing Gragg’s complaint in its entirety.
This appeal followed.                                             Valot v. Southeast Local Sch. Dist. Bd. of Educ., 107 F.3d
                                                                  1220, 1226 (6th Cir. 1997) (citations omitted). As the district
                       II. ANALYSIS                               court recognized, Gragg’s motivation in requesting overtime
                                                                  pay was to ensure that she received compensation for
               A. Speech Retaliation Claims                       additional work; thus, her aim was “to air or remedy
                                                                  grievances of a purely personal nature.” Id. In our view, the
   We note at the outset that Gragg has devoted considerable      “content, form, and context” of Gragg’s statement compel the
argument to challenging this Court’s ruling on interlocutory      conclusion that it was not a matter of public concern and,
appeal concerning the three speech retaliation claims. That       thus, was not constitutionally protected. We therefore hold
ruling, however, constitutes the law of the case. United States   that the district court properly awarded summary judgment in
v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (explaining         favor of the defendants on this claim.
that findings made at one point in a litigation become the law
of the case for subsequent stages of the same litigation). Our               B. Age and Gender Discrimination Claims
power “to reach a result inconsistent with a prior decision
reached in the same case ‘is to be exercised very sparingly,         Gragg next argues that the district court erred in dismissing
and only under extraordinary conditions.’” In re Kenneth          her age and gender discrimination claims under the Kentucky
Allen Knight Trust, 303 F.3d 671, 677 (6th Cir. 2002)             Civil Rights Act, as well as her identical gender
(quoting Gen. Am. Life Ins. Co. v. Anderson, 156 F.2d 615,        discrimination claim under Title VII. Generally, in order to
619 (6th Cir. 1946)). Because this case involves no such          establish a prima facie case of discrimination under Title VII
“extraordinary conditions,” id., we decline to disturb this       or the Kentucky Civil Rights Act,1 a plaintiff must comply
Court’s prior ruling.                                             with the requirements set forth in McDonnell Douglas Corp.
                                                                  v. Green, 411 U.S. 792 (1973). See also Mitchell v. Toledo
  We must address, however, the one speech retaliation claim      Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992). The analysis
that was not at issue in the interlocutory appeal – i.e., the     differs, however, in cases, such as this one, that involve a
claim based upon Gragg’s alleged request for overtime pay.        “reduction in force.” Barnes v. GenCorp Inc., 896 F.2d 1457,
We hold that this request does not constitute protected speech
because it is not a matter of public concern.
                                                                       1
  [A] particular expression addresses a matter of public                The Kentucky C ivil Rights A ct’s discrimination provisions “track[]
  concern where it can ‘be fairly considered as relating to       federal law and should be interpreted co nsonant with federal
  any matter of political, social, or other concern to the        interpretation.” Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814
                                                                  (Ky. 1 992 ).
No. 02-6387                         Gragg v. Somerset         7    8    Gragg v. Somerset                           No. 02-6387
                               Technical College, et al.                Technical College, et al.

1465 (6th Cir. 1990). A prima facie case of discrimination in      case of discrimination is established, “[t]he burden of
a reduction in force case requires proof that the plaintiff was    producing evidence of ‘pretext’ essentially merges with the
part of a protected class, that she was qualified to perform the   burden of persuasion, which always lies with the plaintiff.”
job and that she was discharged; in addition, the plaintiff must   Wilkins v. Eaton Corp., 790 F.2d 515, 522 (6th Cir. 1986).
produce “additional direct, circumstantial, or statistical         To meet that burden, Gragg would have to produce evidence
evidence tending to indicate that the employer singled out the     that the decisionmakers’ explanations were false and that
plaintiff for discharge for impermissible reasons.” Id. “The       gender or age discrimination was the real reason for the
guiding principle [in a reduction in force case] is that the       elimination of her position. See St. Mary’s Honor Center v.
evidence must be sufficiently probative to allow a factfinder      Hicks, 509 U.S. 502, 507-08 (1993). In this case, the
to believe that the employer intentionally discriminated           defendants have offered a legitimate reason for the abolition
against the plaintiff because of age” or gender. Id. at 1466.      of Gragg’s position. The southern region of the state – in
It is undisputed that by virtue of her age and gender, Gragg       which Gragg was employed – was the only region to have two
was a member of a protected class. It is also undisputed that      regional educational consultant positions; the other regions
she was qualified to perform her former job of regional            only had one each. Therefore, one of the southern region’s
educational consultant and that she was discharged. The issue      regional educational consultant positions had to be abolished
is whether she has shown that the defendants impermissibly         in order to achieve a uniform “staffing pattern” throughout the
singled her out for discharge because of her age or gender.        state. Gragg has offered no persuasive evidence indicating
                                                                   that this staffing pattern rationale was a pretext for
  In an effort to prove that the defendants terminated her         discrimination.
because of her age and gender, Gragg argues that younger
males received better treatment than she received. Our               Gragg argues that the defendants have failed to explain why
thorough review of the facts and arguments in this case,           they eliminated her position and not the other position, which
however, leads us to the firm conclusion that none of the          was held by John Spoo. Spoo is not similarly situated to
younger males that Gragg has identified is “similarly-situated     Gragg, however, because he worked for a different
in all respects” to her. Mitchell, 964 F.2d at 583 (emphasis       supervisor, had more seniority in the position and worked in
added). In light of the significant differences that exist         a more regional (as opposed to school-specific) capacity than
between Gragg and each of the identified younger males,            Gragg. In any event, the mere fact that the defendants chose
Gragg cannot prove age or gender discrimination by                 Gragg’s position over Spoo’s, without more, simply does not
comparing her treatment to theirs. Nor has she offered any         suggest – let alone prove – any impermissible discrimination.
other direct, circumstantial or statistical evidence indicating
that her position was terminated because of her age or gender.       Therefore, the district court properly granted summary
Indeed, as the district court noted, the same number of men        judgment in favor of the defendants on Gragg’s age and
and women were laid off during the reduction in force.             gender discrimination claims.

  Moreover, even assuming that Gragg had established a                               C. Due Process Claims
prima facie case of age or gender discrimination, she would
be unable to prove that the defendants’ reason for abolishing        Gragg also contends that the district court erred in
her position was a pretext for discrimination. If a prima facie    dismissing her federal and state due process claims against
No. 02-6387                          Gragg v. Somerset         9    10       Gragg v. Somerset                              No. 02-6387
                                Technical College, et al.                    Technical College, et al.

defendant Murrell. The essence of these claims is that                positions. It is the cause element which confers upon the
Murrell’s participation in various stages of the layoff process       property right the imprimatur of constitutionality.
violated Gragg’s due process right to an impartial                    Although plaintiffs may have had an expectation of
decisionmaker. These claims fail, however, because Gragg              continued employment it was a unilateral one and does
has no protectible property interest in her continued                 not rise to the level of a constitutionally protected right.
employment.
                                                                    Riggs v. Commonwealth, 734 F.2d 262, 265 (6th Cir. 1984).
  Gragg’s argument is based upon the assumption that a
property interest is created by virtue of the fact that she was        Like the layoff statute in Riggs, section 151B.085 contains
an employee with “continuing status.” This assumption is            no “cause” requirement where a continuing employee is laid
false. Chapter 151B of the Kentucky Revised Statutes sets           off because her position is abolished. Gragg clearly had a
forth procedures that must be followed in connection with the       right to insist that the Department follow the procedures set
layoff of an employee with continuing status. Section               forth in section 151B.085, see KRS 151B.086; Koo v. Comm.,
151B.085, entitled “Procedures for layoffs,” articulates the        Dep’t for Adult and Tech. Educ., 919 S.W.2d 531 (Ky. 1995),
procedures that must be followed in the event of “[a] layoff of     but she had no protectible property interest in her continued
an employee with continuing status in the Department of             employment. For that reason, the district court properly
Technical Education due to the abolition of a position . . . .”     awarded summary judgment in favor of the defendants on
Section 151B.086, entitled “Appeal to board of layoff by            Gragg’s due process claims.2
continuing status employee,” provides that:
                                                                               D. Claim Under the Kentucky Constitution
  (1) A continuing status employee may appeal his layoff
      on the grounds that the procedures in KRS 151B.085               Gragg’s final claim alleges that the defendants engaged in
      were not followed.                                            arbitrary and capricious conduct in violation of section two of
                                                                    the Kentucky Constitution, which provides that “[a]bsolute
  (2) An appeal by a continuing status employee shall be            and arbitrary power over the lives, liberty, and property of
      filed with the board within thirty (30) days of the           freemen exist nowhere in the republic, not even in the largest
      effective date of the layoff. . . .                           majority.” In light of our conclusion that all other claims in
                                                                    this case were properly dismissed, the district court was
  In a case involving a statute similar to the one at issue here,   entitled, as Gragg acknowledges, to dismiss this state law
we concluded that the plaintiff employees, who had been laid        claim as well.
off, had no protectible property interest in their continued
employment. As we explained:
  Clearly there is a distinction between a discharge and a               2
                                                                          Gra gg’s lack of a protectible property interest in her continued
  layoff. Kentucky’s statute provides that a discharge              employment also defeats her claim challenging the constitutionality of
  cannot take place absent cause. The Kentucky statute              section 151B.086 of the Kentucky Revised Statutes, which was based
  governing layoffs contains no requirement to show                 upon the argument that the section unconstitutionally denies substantive
  cause. It permits layoffs due to . . . abolishment of             due process to employees with a property interest in continued
                                                                    emp loyment.
No. 02-6387                       Gragg v. Somerset      11
                             Technical College, et al.

                   III. CONCLUSION
 For the foregoing reasons, the district court’s judgment is
AFFIRMED.
