Teresa Timm v. Wright State University

*The Honorable Glen M. Williams, Senior United States District
Judge for the W estern D istrict of Virginia, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0212P (6th Cir.)
File Name: 04a0212p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TERESA TIMM,
Plaintiff-Appellant,
v.
WRIGHT STATE UNIVERSITY,
et al.,
Defendants-Appellees.
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No. 03-3371
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 99-00656—Thomas M. Rose, District Judge.
Argued: June 10, 2004
Decided and Filed: July 7, 2004
Before: MARTIN and SUTTON, Circuit Judges;
WILLIAMS, Senior District Judge.*
2 Timm v. Wright State Univ., et al. No. 03-3371
_________________
COUNSEL
ARGUED: John R. Folkerth, Jr., FOLKERTH &
FOLKERTH, Dayton, Ohio, for Appellant. Terence L.
Fague, COOLIDGE, WALL, WOMSLEY & LOMBARD
CO., Dayton, Ohio, for Appellees. ON BRIEF: John R.
Folkerth, Jr., FOLKERTH & FOLKERTH, Dayton, Ohio, for
Appellant. Terence L. Fague, COOLIDGE, WALL,
WOMSLEY & LOMBARD CO., Dayton, Ohio, for
Appellees.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff Teresa
Timm filed suit against Wright State University, University
Provost Perry Moore, University President Kim Goldenberg,
and Janet Gibbs, alleging that the University violated a
number of her rights when it terminated her employment in
December 1998. The district court granted summary
judgment in favor of the defendants on all of Ms. Timm's
claims. Ms. Timm appealed, arguing that the district court
erred in its judgment on her First Amendment, Rehabilitation
Act, and Equal Protection Clause claims. We affirm.
I.
Ms. Gibbs, an employee in the school's business and
finance department, hired Ms. Timm as Director of Internal
Audit for the University in November 1995. In June 1997,
the University promoted Ms. Timm to Assistant Vice
President for Business and Financial Services. Ms. Gibbs
served as Ms. Timm's immediate supervisor throughout her
employment with the University.

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No. 03-3371 Timm v. Wright State Univ., et al. 3
After Ms. Timm assumed the role of Assistant Vice
President, she and Dr. Susan Lightle compiled a list for Ms.
Gibbs of candidates to fill the then-vacant auditor position.
In January 1998, Ms. Gibbs hired an Asian man whom Ms.
Timm considered less qualified than other candidates she and
Dr. Lightle evaluated. Ms. Timm alleges that Ms. Gibbs
made her selection solely to diversify the racial makeup of the
office, and not because the man was the most qualified for the
position. At one point, Ms. Timm confronted Ms. Gibbs
about her decision and warned her that her choice could have
negative legal ramifications. Ms. Gibbs also reports that Ms.
Timm grew increasingly resentful and hostile towards her
after the hiring.
In a related dispute, Ms. Gibbs reports that Ms. Timm
defied her instructions when she invited candidates for the
audit position to a party, where they met one another and
mingled with University employees. In addition, Ms. Gibbs
alleges that Ms. Timm reported to her who she and Dr.
Lightle considered the most qualified for the auditor position
after Ms. Gibbs specifically asked her not to reveal their
choice to her.
Another rift developed between Ms. Timm and Ms. Gibbs
in March 1998 following the death of former University
President, Dr. Harley E. Flack. Ms. Timm accused Ms. Gibbs
of improperly allocating University funds to cover expenses
related to his funeral and the Flack family's move. Ms. Timm
reports that two University employees approached her about
the allegedly improper expenses, and that both expressed a
fear that Ms. Gibbs would retaliate against them if they spoke
out. News of the allegedly improper expenditures leaked to
the media, and a state auditor was called to review the
University's finances in July 1998. The audit found no
evidence of impropriety.
On several occasions during the state audit, Ms. Timm
directly asked Ms. Gibbs about certain expenditures. Ms.
Timm alleges that Ms. Gibbs acted unconcerned and told her
4 Timm v. Wright State Univ., et al. No. 03-3371
that the state auditor would determine whether any payments
were improper. After a number of other University
employees approached her about the audit, Ms. Timm gave
audit-related documents to Mr. John Bale, an Associate Dean
for the School of Medicine, whom she thought would pass
them to the new University President, Dr. Goldenberg. Mr.
Bale is uncertain whether he passed the documents to Dr.
Goldenberg.
After Ms. Timm forwarded the documents to Mr. Bale, she
alleges that Ms. Gibbs began treating her in a hostile manner.
Specifically, Ms. Timm alleges that Ms. Gibbs mocked her
for suffering from depression and criticized her ability to
communicate with other employees.
The working relationship between Ms. Timm and Ms.
Gibbs grew worse after Ms. Timm hired a graduate student
with whom she used to work to complete a computer project
for the University. Ms. Gibbs alleges that she told Ms. Timm
not to hire her. After Ms. Gibbs learned that Ms. Timm
entered into a contract with the graduate student, and that the
media had inquired about the contract, Ms. Gibbs
reprimanded Ms. Timm and directed her to cancel the
contract.
Another disagreement developed between Ms. Timm and
Ms. Gibbs after Ms. Timm unilaterally implemented a
University charge-card system across the campus. Ms. Gibbs
alleges that she warned Ms. Timm not to implement the
system unilaterally because of the technical problems that it
would likely cause. Despite this alleged warning, Ms. Timm
implemented the system unilaterally and technical problems
occurred.
In September 1998, Ms. Timm filed a Notification Form
with the University stating that she suffered from a mental or
social disorder. She claims comments that Ms. Gibbs made
in the office, such as "this is insane," exacerbated her
disorder. Throughout the months that followed, Ms. Timm

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No. 03-3371 Timm v. Wright State Univ., et al. 5
states that Ms. Gibbs demeaned her and excluded her from
certain meetings she had previously attended.
In October 1998, the school's business-and-finance-
department staff, which included both Ms. Timm and Ms.
Gibbs, participated in an annual retreat. At this retreat, Ms.
Gibbs alleges that a number of senior staff members voiced
their concern about Ms. Timm's performance at work. Ms.
Gibbs also states that during the retreat, Ms. Timm was
defensive and uncooperative.
Throughout November 1998, Ms. Timm alleges that Ms.
Gibbs demeaned her through e-mail messages and through
their personal contact with one another. At one point in
November, Ms. Timm gave Ms. Gibbs a news clipping about
bullying in the workplace. Ms. Gibbs reports that she met
with Ms. Timm in November and advised her that many of
the staff in their department had voiced concerns about
working with her.
A business department meeting was scheduled for
December 2, 1998. In the weeks leading up to this meeting,
Ms. Timm states that she feared that Ms. Gibbs would
humiliate her in front of her co-workers. Just days before the
meeting, Ms. Timm contacted Dr. Moore, the University
Provost, in an unsuccessful attempt to have him intervene and
stop the meeting. On November 29, Ms. Timm sent an e-mail
to Ms. Gibbs restating her grievances and informing her that
she would seek an attorney's advice if the situation did not
improve.
On December 3, 1998, Ms. Timm received her notice of
termination from the University and was escorted off the
campus. When Ms. Timm retrieved her personal items on
January 15, 1999, she alleges that some of her files were
missing and that some had been copied. In addition, her
computer's hard drive had been removed.
6 Timm v. Wright State Univ., et al. No. 03-3371
Ms. Gibbs reports that she decided to terminate Ms. Timm
in November 1998 based on four incidents of "gross
insubordination" and the "unhealthy environment" she created
in the office. The four incidents Ms. Gibbs recounted were:
(1) inviting candidates for the auditor position to a party
after Ms. Gibbs specifically told her not to invite them;
(2) disclosing to Ms. Gibbs the candidate she and Dr.
Lightle thought was most qualified for the auditor
position after Ms. Gibbs told her not to tell her their
preference;
(3) entering into a contract with a graduate student to
complete a University computer project after Ms. Gibbs
warned her not to contract with her; and
(4) implementing a charge-card system unilaterally
across the campus after Ms. Gibbs told her to implement
it in a piecemeal fashion.
App. 436-38.
Ms. Timm's amended complaint alleged eight causes of
action, including violations of the First Amendment,
Rehabilitation Act, Equal Protection Clause, and various Ohio
state laws. The district court granted summary judgment on
defendants' motion on all claims. Ms. Timm appealed the
judgment of the First Amendment, Rehabilitation Act, and
Equal Protection Clause claims.
II.
We review a grant of summary judgment de novo.
Barnhart v. Pickrel, Schaeffer and Ebeling Co. L.P.A.,
12 F.3d 1382, 1388 (6th Cir. 1993). Summary judgment is
proper when 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). A court considering a summary judgment
motion considers the facts in a light most favorable to the

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No. 03-3371 Timm v. Wright State Univ., et al. 7
nonmoving party and draws all reasonable inferences in favor
of the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III.
Ms. Timm first alleges that the district court erred in
granting summary judgment in favor of defendants on her
First Amendment claim. To establish a prima facie claim for
retaliation in violation of the First Amendment's free-speech
guarantee, Ms. Timm must show: (1) she was engaged in a
constitutionally protected activity; (2) defendant's adverse
action caused her to suffer an injury that would likely chill a
person of ordinary firmness from continuing to engage in that
activity; and (3) the adverse action was motivated at least in
part as a response to the exercise of the plaintiff's
constitutional rights. Bloch v. Ribar, 156 F.3d 673, 678 (6th
Cir. 1998).
According to Ms. Timm, the University terminated her
employment because she spoke out about the expenses related
to President Flack's death. She argues that the roughly eight
months that passed between the date she spoke out about the
expenses and her termination establishes a sufficient temporal
nexus to conclude that the University was retaliating against
her. Ms. Timm also argues that the district court did not
consider other evidence she presented and that it failed to
consider this evidence in a light most favorable to her.
We find no merit to Ms. Timm's argument. Eight months
is a long period of time for an employer to wait to retaliate
against an employee with a termination notice, and the
evidence Ms. Timm presented does not change our
perspective in this case. Moreover, we believe the reasons
Ms. Gibbs offered in support of her decision to terminate Ms.
Timm justify the action taken by the University. For these
reasons, we find no genuine issue of material fact and,
therefore, affirm the judgment of the district court on this
claim.
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IV.
Ms. Timm's second argument is that the district court erred
in granting summary judgment in favor of defendants on her
Rehabilitation Act claim. "'[I]f the plaintiff has direct
evidence that the employer relied on his or her disability in
making an adverse employment decision,' the plaintiff must
prove that he or she is 'disabled.'" DiCarlo v. Potter, 358
F.3d 408, 418 (6th Cir. 2004), quoting Monette v. Elec. Data
Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996). However,
if the plaintiff seeks to establish his or her case indirectly,
without direct proof of discrimination, the plaintiff may
establish a prima facie case of discrimination by showing
that: 1) he or she is disabled; 2) otherwise qualified for
the position, with or without reasonable accommodation;
3) suffered an adverse employment decision; 4) the
employer knew or had reason to know of plaintiff's
disability; and 5) the position remained open while the
employer sought other applicants or the disabled
individual was replaced.
Dicarlo, 358 F.3d at 418, quoting Monette, 90 F.3d at 1186.
Ms. Timm alleges that the district court did not consider all
of the evidence she presented in support of her claim. To
support her claim, she argues that she was excluded from
meetings, chastised for entering into a contract with a former
colleague, and lied to about alleged criticisms from her
coworkers. However, other than the Notification Form she
filed with the University stating that she suffered from a
mental or social disorder, she did not present any evidence
indicating that she is actually disabled. "To be 'disabled' for
the . . . Rehabilitation Act, an individual must (1) have a
physical or mental impairment which 'substantially limits'
him or her in at least one 'major life activity,' (2) have a
record of such an impairment, or (3) be regarded as having
such an impairment." DiCarlo, 358 F.3d at 418 (citations
omitted). Major life activities include "'functions such as

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No. 03-3371 Timm v. Wright State Univ., et al. 9
caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.'"
Mahon v. Crowell, 295 F.3d 585, 589 (6th Cir. 2002), quoting
45 C.F.R. § 84.3(j)(2)(ii). In addition, Ms. Timm presented
no evidence that indicated how the University could
accommodate her disability, if she indeed suffers from one, or
any of the other necessary elements of the claim.
We find no evidence that establishes a genuine issue of
material fact as to Ms. Timm's Rehabilitation Act claim.
Thus, we affirm the district court's judgment on this claim.
V.
The last issue Ms. Timm raises is that the district court
erred in granting summary judgment in favor of defendants on
her Equal Protection Clause claim. "To succeed on a § 1983
claim of this kind, against a public employer for an equal
protection violation, the plaintiff must show that the employer
made an adverse employment decision 'with a discriminatory
intent and purpose.'" Sutherland v. Michigan Dep’t of
Treasury, 344 F.3d 603, 614 (6th Cir. 2003), quoting Boger
v. Wayne Cty., 950 F.2d 316, 324-25 (6th Cir.1991).
Ms. Timm alleges that "outbursts" from Ms. Gibbs, which
consisted of twice stating "this is insane" in response to
various decisions made by Ms. Timm, as well as Ms. Gibbs
asking Ms. Timm if she was on medication, suggesting that
she work on her listening skills and visit a psychologist, all
amount to evidence of mistreatment. She alleges that this
supports an inference of ad hoc actions prompted by class-
based discriminatory animus.
As we stated previously, Ms. Timm presented no evidence
that she actually suffers from a disability. Therefore, we find
no merit to her argument that she is entitled to class-based
protection. Although Ms. Timm cites Thomas v. Gee, 850 F.
Supp. 665 (S.D. Ohio 1994) and Williams v. Ohio Dep’t of
Mental Health, 960 F. Supp. 1276 (S.D. Ohio 1997), to
10 Timm v. Wright State Univ., et al. No. 03-3371
support her claim, neither case presents a set of facts similar
to her case. Moreover, neither of these cases nor her
argument presents any evidence to establish that Ms. Timm
was discriminated against or was treated differently than other
similarly situated non-protected employees. Therefore, we
conclude that Ms. Timm failed to meet her burden of
establishing a prima facie claim under the Equal Protection
Clause. The judgment of the district court on this claim is
affirmed.
For the reasons stated herein, we AFFIRM the judgment of
the district court in its entirety.

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