Sharon L. Gragg v. Somerset Technical College

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0190P (6th Cir.)
File Name: 04a0190p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SHARON L. GRAGG,
Plaintiff-Appellant,
v.
SOMERSET TECHNICAL
COLLEGE, et al.,
Defendants-Appellees.
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No. 02-6387
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 97-00457—Karen K. Caldwell, District Judge.
Argued: March 9, 2004
Decided and Filed: June 22, 2004
Before: MARTIN and CLAY, Circuit Judges; MILLS,
District Judge.*
2 Gragg v. Somerset
Technical College, et al.
No. 02-6387
_________________
COUNSEL
ARGUED: Winter R. Huff, LAW OFFICES OF JOHN G.
PRATHER, Somerset, Kentucky, for Appellant. D. Brent
Irvin, OFFICE OF THE ATTORNEY GENERAL, Frankfort,
Kentucky, for Appellees. ON BRIEF: Winter R. Huff,
LAW OFFICES OF JOHN G. PRATHER, Somerset,
Kentucky, for Appellant. D. Brent Irvin, OFFICE OF THE
ATTORNEY GENERAL, Frankfort, Kentucky, for
Appellees.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Sharon L. Gragg
appeals the district court’s adverse award of summary
judgment on numerous claims arising from her layoff from
the Kentucky Workforce Development Cabinet. We
AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Prior to her October 1996 layoff from the Kentucky
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
Kentucky-Tech schools, was VanHook’s immediate

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

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

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Technical College, et al.
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1465 (6th Cir. 1990). A prima facie case of discrimination in
a reduction in force case requires proof that the plaintiff was
part of a protected class, that she was qualified to perform the
job and that she was discharged; in addition, the plaintiff must
produce “additional direct, circumstantial, or statistical
evidence tending to indicate that the employer singled out the
plaintiff for discharge for impermissible reasons.” Id. “The
guiding principle [in a reduction in force case] is that the
evidence must be sufficiently probative to allow a factfinder
to believe that the employer intentionally discriminated
against the plaintiff because of age” or gender. Id. at 1466.
It is undisputed that by virtue of her age and gender, Gragg
was a member of a protected class. It is also undisputed that
she was qualified to perform her former job of regional
educational consultant and that she was discharged. The issue
is whether she has shown that the defendants impermissibly
singled her out for discharge because of her age or gender.
In an effort to prove that the defendants terminated her
because of her age and gender, Gragg argues that younger
males received better treatment than she received. Our
thorough review of the facts and arguments in this case,
however, leads us to the firm conclusion that none of the
younger males that Gragg has identified is “similarly-situated
in all respects” to her. Mitchell, 964 F.2d at 583 (emphasis
added). In light of the significant differences that exist
between Gragg and each of the identified younger males,
Gragg cannot prove age or gender discrimination by
comparing her treatment to theirs. Nor has she offered any
other direct, circumstantial or statistical evidence indicating
that her position was terminated because of her age or gender.
Indeed, as the district court noted, the same number of men
and women were laid off during the reduction in force.
Moreover, even assuming that Gragg had established a
prima facie case of age or gender discrimination, she would
be unable to prove that the defendants’ reason for abolishing
her position was a pretext for discrimination. If a prima facie
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Technical College, et al.
No. 02-6387
case of discrimination is established, “[t]he burden of
producing evidence of ‘pretext’ essentially merges with the
burden of persuasion, which always lies with the plaintiff.”
Wilkins v. Eaton Corp., 790 F.2d 515, 522 (6th Cir. 1986).
To meet that burden, Gragg would have to produce evidence
that the decisionmakers’ explanations were false and that
gender or age discrimination was the real reason for the
elimination of her position. See St. Mary’s Honor Center v.
Hicks, 509 U.S. 502, 507-08 (1993). In this case, the
defendants have offered a legitimate reason for the abolition
of Gragg’s position. The southern region of the state – in
which Gragg was employed – was the only region to have two
regional educational consultant positions; the other regions
only had one each. Therefore, one of the southern region’s
regional educational consultant positions had to be abolished
in order to achieve a uniform “staffing pattern” throughout the
state. Gragg has offered no persuasive evidence indicating
that this staffing pattern rationale was a pretext for
discrimination.
Gragg argues that the defendants have failed to explain why
they eliminated her position and not the other position, which
was held by John Spoo. Spoo is not similarly situated to
Gragg, however, because he worked for a different
supervisor, had more seniority in the position and worked in
a more regional (as opposed to school-specific) capacity than
Gragg. In any event, the mere fact that the defendants chose
Gragg’s position over Spoo’s, without more, simply does not
suggest – let alone prove – any impermissible discrimination.
Therefore, the district court properly granted summary
judgment in favor of the defendants on Gragg’s age and
gender discrimination claims.
C. Due Process Claims
Gragg also contends that the district court erred in
dismissing her federal and state due process claims against

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

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

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