Elder v. Ohio Department of Rehabilitation and Corrections

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Sheila Elder,
Plaintiff,
-vs-
Ohio 	Department 	of 	Rehabilitation 	and
Corrections,
Defendant.
Case No. 1:24-cv-00649-PAB
JUDGE PAMELA A. BARKER
MEMORANDUM OPINION & ORDER
Currently pending before the Court is Defendant Ohio Department of Rehabilitation and
Corrections’ (“ODRC”) Motion for Summary Judgment (the “Motion”). 	(Doc. No. 31.) 	Plaintiff
Sheila Elder (“Elder”) filed an Opposition to ODRC’s Motion on August 22, 2025, to which ODRC
replied on October 6, 2025. 	(Doc. Nos. 33, 36.) 	For the following reasons, ODRC’s Motion is
GRANTED.
I. 	Background
The following facts are undisputed.
A. 	Plaintiff applies for a CNP position with ODRC
Plaintiff is an African American female. 	(Doc. No. 3, ¶ 8, Doc No 8, ¶ 8.) ODRC has
employed Plaintiff in various positions since 1995. (Doc. No. 3, ¶ 11, Doc No 8, ¶ 11.) 	Relevant to
this case, ODRC employed Plaintiff as a registered nurse starting in 2013. (Doc. No. 3, ¶ 11, Doc
No 8, ¶ 11.) Plaintiff, along with other ODRC nurses, are bargaining unit members of the Service
Employees International Union, District 1199 (the “Union”). (Doc. No. 31-5, ¶ 16.)
From June 28, 2022 through July 11, 2022, ODRC accepted applications for a correctional
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nurse practitioner (“CNP”) at the Mansfield Correctional Institution (“ManCi”). (Doc. No. 31-4, ¶
10.) 	Plaintiff applied for this job, but the position was ultimately awarded to another individual.
(Doc. No. 31-4, ¶ 12; Doc. No. 31-14.) 	That person declined the job, so ODRC again accepted
applications for the CNP position at ManCi. 	(Doc. No. 31-4, ¶¶ 12–13; Doc. No. 31-14, PageID
#1363.) Plaintiff then applied for the CNP position a second time. (Doc. No. 3, ¶ 12, Doc No 8, ¶
12.)
B. 	ODRC selects a Caucasian male for the CNP position
As part of the selection process, ODRC was bound to follow the Union’s Collective
Bargaining Agreement. 	(Doc. No. 31-5, ¶ 17.) 	Pursuant to the CBA, applicants “must clearly
demonstrate on the application how they possess the minimum qualifications for the position.” (Doc.
No. 31-6, PageID #1165.) 	The CBA further provides that “[a]ll eligible applications shall be
reviewed considering the following criteria: qualifications, experience, education, active disciplinary
record, and work record.” (Id. at PageID #1166.) As part of the selection, ODRC “maintains the right
to use a selection device (e.g. structured interview, written test, physical ability, etc.) to measure the
listed criteria.” (Id.) The CBA requires the job to “be awarded to the applicant with the most state
seniority unless a junior employee is significantly more qualified based on the listed criteria.” (Id.)
Consistent with the CBA, after receiving applications, a “subject matter expert” was assigned
to review the applications and identify qualified candidates for an interview. 	(Doc. No. 31-14,
PageID #1363.) After reviewing the applications, Nicole Erdos (“Erdos”), a subject matter expert,
identified three individuals to interview for the CNP position. 	(Id.) 	These three individuals were
Plaintiff, Jesse Glass (“Glass”), a white male, and Trish Koveleski, a white female. (Doc. No. 3, ¶
15, Doc No 8, ¶ 15.)
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All three candidates were interviewed by the same interview panel and were asked the same
questions. (Bond Dep. 17:21–18:9, 22:8–20.) The panel consisted of John Bond (“Bond”), Angela
Stuff (“Stuff”), Amy McIntosh (“McIntosh”), and Nathan Ross (“Ross”). (Bond Dep. 17:21–18:15;
Doc. No. 31-2, PageID #1042; Doc. No. 31-4, ¶ 11; Doc. No. 31-11, PageID #1359; Doc. No. 31-13,
PageID #1362.) Julie Hensley (“Hensley”), a Health Care Administrator at ManCi, also sat on the
panel as a non-participant. (Doc. No. 31-12, PageID #1360.) All members of the panel, including
Hensley, are white, except for Bond, who is black. (Bond Dep. 8:1–5, 18:12–15.)
After interviewing the three candidates, the interview panel selected Glass for the CNP
position. (Doc. No. 3, ¶ 16, Doc. No. 8, ¶16.) In a document entitled “Recommendation for Personnel
Selection” the interview panel’s justification for recommending Glass was as follows:
Jesse Glass was recommended for the position due to being a Nurse 1 for 8 years.
Assist with QIC duties while at MCI and currently at ManCI. 	Audit training
completed at CTA in 2018, BSN obtained in 2019, Completed MSN program in
July 2022. Thoroughly educated on care across the lifespan; to include many hours
of clinical rotations in primary, pediatric, and women’s health care settings
allowing for proper educational and experience to provide cost-effective quality
healthcare. 	Military 	and 	nursing 	work 	experience allowing 	for 	leadership
development, 	and 	the 	team-care 	dynamic 	mindset 	needed 	to 	treat 	patients
holistically while utilizing resources in the most effective way possible.
(Doc. No. 27-4, PageID #962.)
Each member of the interview panel, other than Bond,1 found that Glass had a better interview
than Plaintiff, and that Glass answered clinical questions better than Plaintiff did. 	(Doc. No. 31-2,
PageID #1042; Doc. No. 31-11, PageID #1359; Doc. No. 31-13, PageID #1362.) McIntosh found
that Glass “interviewed better than the other applicants” and that in response to a hypothetical
1 Bond was the only member to find that Glass and Plaintiff both interviewed well, but he relied on the subject matter
experts who “took the lead of disclosing that they felt that [Glass] was the better candidate after those interviews.” (Bond
Dep. 37:22–24.)
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question, Glass addressed an issue that Plaintiff failed to address. (Doc. No. 31-11, PageID #1359.)
Ross found that based on Glass’ “answers and conversation during the interview” he “was the most
knowledgeable candidate, as it pertains to clinical practice.” (Doc. No. 31-13, PageID #1362.) Stuff
found that Plaintiff was “apprehensive and at times unsure of herself and her clinical decisions” in
contrast to Glass who “was confident, precise, and presented himself as the most knowledgeable.”
(Doc. No. 31-2, PageID #1042.) Further, Hensley, while not on the interview panel, found that “the
clinical responses that [Plaintiff] offered did not reflect the same level of critical thinking skills that
were apparent with both of the other candidates.” (Doc. No. 31-12, PageID #1360.)
C. 	Plaintiff files a grievance with the union
On December 21, 2022, Plaintiff filed a grievance based on her non-promotion. (Doc. No. 3,
¶ 17, Doc No 8, ¶ 17.) In her grievance, Plaintiff alleged that she was the most senior candidate and
that she believed that Glass was less qualified. 	(Doc. No. 23-7, PageID #400.) 	After a hearing,
Plaintiff’s grievance was denied by Philip Rader (“Rader”), a Labor Relations Officer 3 for ODRC,
on February 9, 2023:
This grievance is a duplicate to 06970. A Step 2 hearing was held 02/06/2023 via
TEAMS. Present on the call were Philip Rader, LRO3; Janet Tobin, LRO2; Roy
Steward, LRO2; Geoff Davies 1199 Organizer and the Grievant. Union Argument:
Union argues Grievant applied for, and was not awarded the posted position of CNP
at Mansfield Correctional Institution. Grievant/Union argue the Grievant is the
more senior applicant by approximately 18 months and has same qualifications as
selected candidate. Grievant/union argue management cites qualities/qualifications
not 	required 	for 	position 	as 	cause 	for 	selecting 	candidate, 	however 	she
possesses/demonstrates same/similar qualities/qualifications. Union argues Article
30.02 requires the “job shall be awarded to the applicant with the most state
seniority unless a junior employee is significantly more qualified based on listed
criteria.” Discussion and findings: Having reviewed documents and heard related
testimony it is the finding of the Step 2 Hearing Officer There is no dispute both
parties 	met 	minimum 	qualifications 	of 	the 	position. 	Article 	30.02 	gives
Management 	the 	right 	to 	“use 	selection 	devices, 	proficiency 	tests 	and/or
assessments to determine if an applicant meets minimum qualifications and, if
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applicable to rate applicants pursuant to this Section.” Management utilized an
interview and determined the selected candidate was in fact superior to the Grievant
and was awarded the position. There are no contract violations, this grievance is
denied at Step 2.
(Doc. No. 24-3, PageID #720.)
After her grievance was denied, on February 27, 2023, Plaintiff filed an Amended Charge of
Discrimination with the EEOC.2 (Doc. No. 23-2, PageID #366.) In the “discrimination based on”
box, Plaintiff listed “age, race, [and] sex.” (Id.) In the “the particulars are” box, Plaintiff wrote:
I began my employment with the Respondent in or around 1995. I have been in the
position of Registered Nurse since in or around July 2013. In or around 2022, I
applied for a promotion to the Nurse Practitioner position. I was not hired for the
position. The Respondent promoted a younger, White male who was less qualified
and had less seniority than me.
I believe that I was discriminated against because of my race, Black, and my sex,
female, in violation of Title VII of the Civil Rights Act of 1964, as amended.
I also believe that I was discriminated against because of my age, 51 (Year of Birth:
1971), in violation of the Age Discrimination in Employment Act of 1967, as
amended.
(Id.)3
Thereafter, on May 25, 2023, Plaintiff, ODRC, and the Union entered into a settlement
agreement. (Doc. No. 3, ¶ 18, Doc No 8, ¶ 18; Doc. No. 23-8, PageID #402.) Under the terms of
that agreement, among other things, Plaintiff was promoted to a CNP position, received a raise, and
received back pay. 	(Doc. No. 23-8, PageID #402.) 	Plaintiff was assigned to work at Richland
Correctional Institutions (“Richland”), but she split her time between Richland and ManCi
temporarily until a permanent position opened. (Id.) Plaintiff started working as a CNP at Richland
2 While labeled as an “amended” charge, this is the only EEOC charge in the record.
3 On April 10, 2024, the EEOC issued a right to sue letter to Plaintiff. (Doc. No. 23-3, PageID #368.)
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on October 23, 2023, and is currently working full time at Richland. (Doc. No. 3, ¶ 21, Doc No 8, ¶
21; Elder Dep. 53:12–19.)
D. 	Plaintiff reports two inmates for rules infractions
During this time, Plaintiff was threatened by inmates on two separate occasions . 	Prior to
filing her grievance, on November 8, 2022, Plaintiff reported an inmate for physically threatening
her. 	(Doc. No. 23-34, PageID #566.) 	Another CNP, who is white, reported the same inmate on
November 29, 2022. (Doc. No. 23-34, PageID #564.) Plaintiff asserts that nothing was done after
she reported the inmate, but on December 8, 2022, the inmate was transferred to a different prison.
(Elder Dep. 128:15–17, 131:3–12.) 	In January 2023, prior to filing her EEOC charge, Plaintiff
reported another inmate who threatened to assault her. (Doc. No. 25-1, PageID #809.) On January
31, 2023, the prison’s Rules Infraction Board accepted Plaintiff’s report as “true and factual” and the
inmate received twenty-one days in restrictive housing. (Doc. No. 23-37, PageID #578.)
E. 	Plaintiff is not assigned a personal “man down radio” or a personal set of keys
while splitting time between ManCi and Richland
While Plaintiff was splitting her time between ManCi and Richland, Plaintiff was never given
her own “man down radio” (a distress button used to alert security of any threats) or her own set of
keys while at ManCi. While Plaintiff was not given a designated “man down radio,” she had access
to one by going “to the control center and [asking] for a man down [radio].” (Elder Dep. 75:17–20.)
Plaintiff also had access to a set of keys every time she went to ManCi even though she did not have
her own set of keys. (Elder Dep. 74:14:–75:4; Shelton Dep. 42:3–7.) Plaintiff’s situation at ManCi
was consistent with other ODRC employees. (Doc. No 31-4, ¶¶ 16–18.)
F. 	Plaintiff is denied overtime after starting as a CNP
After starting as a CNP at Richland, Plaintiff was denied several requests to work overtime as
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a “Nurse 1” (e.g. a RN). (Elder Dep. 108:22–109:1, 109:18–110:8.) 	Plaintiff was denied overtime
based on a directive to stop CNP’s from working “Nurse 1” overtime. 	(Shelton Dep. 31:16–32:8,
36:11–21.) During the COVID-19 pandemic, CNPs would pick up “Nurse 1” overtime shifts. (Rader
Dep. 68:10–22.) 	After the pandemic, ODRC pushed a directive to its institutions to cease that
practice. 	(Id. at 68:23–69:1.) 	Notwithstanding this directive, two institutions, including ManCi,
continued the practice of allowing CNPs to work Nurse 1 overtime. 	(Id. at 69:1–10, 70:1–22; Elder
Dep. 112:15–23.) 	There is nothing in the record suggesting this practice occurred at Richland.
(Shelton Dep. 35:7–12; Elder Dep. 112:15–223.)
On June 26, 2023, Plaintiff filed a grievance regarding the overtime requests, which was
denied:
A Step 2 grievance hearing was held on 07/31/2023 via TEAMS. Present on the
call were: Philip Rader, LRO3; Geoff Davies 1199 organizer and the Grievant.
Union argument: Union argues Grievant has been denied the opportunity to work
overtime as an RN despite prior practice of permitting CNPs to do so. Union argues
agency specific language (pages 240-241) is being violated. Union argues the
agency practice of permitting Psych Nurses to work overtime in the Medical
Department as well as permitting RNs to fill in for LPNs negates prior arguments
preventing CNPs from working overtime as an RN. Union further argues the
agency is mandating RNs out of order by not permitting CNPs to volunteer for
overtime. Lastly, the Union argues Management is retaliating against the Grievant
specifically due to a grievance she previously filed against the agency. Discussion
and Findings: It is the determination of the Step 2 Hearing Officer that Management
has rightfully denied Grievant (and other CNPs) from working overtime as RNs.
Management asserts that by permitting CNPs to work overtime as RNs, there are
potential licensing issues. Article 24.03 supports the decision to prevent CNPs from
working overtime as RNs and gives Management the right to determine overtime
opportunities. The article also states these opportunities are to be awarded to
employees who typically perform the duties. Language cited by the Union on pages
240-241 does not apply to CNPs. The contract does not entitle one classification
rights to overtime opportunities for other classifications. The Union’s argument that
permitting Psych Nurses the ability to work overtime in Medical Departments
negates Management's argument is faulty. Psych Nurses and Medical Nurses are
all RNs, and covered by the agency specific language. The argument that RNs doing
LPN duties is also faulty as RNs and LPNs have overlapping duties and work in
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the same departments. Lastly, OSC’s message for many years has been that CNPs
should not work overtime as RNs. There were exceptions made as institutions
experienced Covid-19 breakouts, but permitting CNPs to work overtime was to
have been stopped in late 2021. OSC learned some institutions were still engaged
in the practice and re-issued work direction to the institutions to assure all parties
were clear of expectations. While this did coincide with the Grievant’s settlement
it was not done preclude (sic) only (sic) the Grievant from working overtime, the
timing was purely coincidental. There are no contract violations, this grievance is
denied at Step 2.
(Doc. No. 24-8, PageID #729–30.)
Plaintiff’s grievance then proceeded to an arbitration, which concluded on July 22, 2024.
(Doc. No. 23-13, PageID #411.) The arbitrator found, in relevant part,
The Union argues that using NPs for Nurse 1 overtime is a past practice that has
been going on for over four years and occurred as recently as eighteen (18) days
prior to the hearing when NP Slone worked overtime. As stated in Elkouri &
Elkouri, How Arbitration Works, “In the absence of a written agreement, ‘past
practice’ to be binding on both Parties, must be (1) unequivocal; (2) clearly
enunciated and acted upon; (3) readily ascertainable over a period of time as a fixed,
and established practice accepted by both Parties.” (Alan Miles Ruben ed., 6th ed.
2003, pp. 607-608) The Union cites that NP Slone, NP Glass, and NP Newland
have worked RN overtime. The Employer concedes that NPs were used in 2020
through 2022 during the pandemic but that was out of necessity to maintain it
facilities during a force majeure that affected every institution across the nation.
After 2022, documentation shows only the aforementioned three NPs worked
overtime as Nurse 1s. The ODRC has twenty-five (25) institutions across the state
and employs approximately seventy-five (75) CNPs. The three named NPs worked
at two different institutions from the location where the grievance arose and did so
without agency permission. Thus, there does not seem to be an established past
practice.
* * *
The CBA neither explicitly includes nor excludes NPs from the rotating volunteer
overtime roster for Nurse 1s. The language as such suggests that any qualified
employee can sign up for overtime. Both Management and the Union cite contract
language, specifically Section 24.03, that consistently states that all volunteers must
be qualified. Thus, this Arbitrator has determined that the Union has met their
burden of proof, and the grievance is sustained. The remedy will be that going
forward, the Grievant will be able to volunteer for Nurse 1 overtime, and the
overtime will be assigned in accordance with pages 241 through 242 of the CBA.
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No 	compensation 	will 	be 	granted 	since 	the 	CBA, 	in 	“Missed 	Overtime
Opportunities” on page 242, states that employees who missed an overtime
opportunity will be permitted to work the number of hours missed at the date and
shift of their choosing but receive no other monetary or compensatory time award.
The Union, however, never identified which dates or specific missed overtimes
were being grieved. After a review of sign-up sheets (Joint Exhibit #18) the
Employer did identify seven (7) possible missed opportunities. The opportunities
were 	missed 	because 	the 	language 	was 	interpreted 	differently 	in 	different
institutions and by different people. Overtime is not a guaranteed benefit. Since the
Grievant was not harmed and the interpretation of the language was questionable,
no makeup opportunities will be afforded to the Grievant. It is suggested that
moving forward, this issue be specifically addressed in bargaining to further clarify
the intent of both Parties.
(Doc. No. 23-13, PageID #419–22.)
After the arbitration award, ODRC again denied Plaintiff’s overtime requests, resulting in
Plaintiff filing a second grievance. 	(Elder Dep. 193:7–194:13.) 	Plaintiff and ODRC were able to
resolve that grievance and entered into a settlement agreement on October 8, 2024. (Id.; Doc. No.
23-21, PageID #450.) Pursuant to the terms of that settlement agreement, Plaintiff was awarded five
(5) eight (8) hour shifts of overtime. (Doc. No. 23-21, PageID #450.)
G. 	The Hurt Feelings Report
In September 2023, after the union denied the first overtime grievance, Plaintiff found a “hurt
feelings report” near her locker in the employee lunchroom at ManCi. 	(Elder Dep. 154:7–155:6.)
The “hurt feelings report” reads, in relevant part,
We, as the Dept, take hurt feelings seriously. If you don't have someone who can
give you a hug and make things all better, please let us know and we will promptly
dispatch a “hugger” to you ASAP. In the event a “hugger” cannot be found, an
EMS Team will be dispatched to soak your socks in coal oil to prevent ants from
crawling up your leg and eating their way up your candy ass. If you are in need of
supplemental support, upon written request, we will make every reasonable effort
to provide you with a “blankie”, a “binky” and/or a bottle if you so desire.
(Doc. No. 25-3, PageID #819.)
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Plaintiff believes that it was directed at her because she “went to the supervisor on somebody”
based on another employee who was not “trying to work with” her, and she found the “hurt feelings
report” shortly after complaining to her supervisor. (Elder Dep. 156:22–157:10.) Plaintiff does not
know who put the “hurt feelings report” near her locker, but she claims that a corrections officer told
her that “they say [a RN] put it there.” (Id. at 165:1.)
Plaintiff’s supervisor, Shawn Shelton (“Shelton”), testified that “hurt feelings reports” are “a
joke.” (Shelton Dep. 38:1–2.) Glass also testified that a “hurt feelings report” reflects the “kind of
the sense of humor we have in corrections.” (Glass Dep. 38:15–22.)
Plaintiff did not think the “hurt feelings report” was a joke. After receiving the “hurt feelings
report,” Plaintiff emailed Shannon Olds, another ODRC employee, informing her that she received
the report. (Doc. No. 23-33, PageID #555–56.) Ms. Olds responded that
I have read your complaint and appreciate your vulnerability in disclosing your
concerns. I will arrange to meet with you tomorrow to discuss since I was out of
the institution most of today.
There is no need to fear any retribution due to reporting information.
(Doc. No. 23-33, PageID #555.) ODRC ultimately “changed up the nursing staff and had a different
person” help Plaintiff going forward. (Elder Dep. 157:22–158:2.)
II. 	Procedural History
On April 11, 2024, Plaintiff initiated this civil action against ODRC by filing her Complaint.
(Doc. No. 1.) On April 17, 2024, Plaintiff filed her First Amended Complaint. (Doc. No. 3.) Therein,
Plaintiff raises three claims for relief: 	(1) Sex Discrimination in Violation of Title VII; (2) Race
Discrimination in Violation of Title VII; and (3) Retaliation in Violation of Title VII. (Id.)
On June 20, 2025, ODRC filed its Motion for Summary Judgment. (Doc. No. 31.) Plaintiff
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filed her Opposition to ODRC’s Motion on August 22, 2025, to which ODRC replied on October 6,
2025. (Doc. Nos. 33, 36.) Accordingly, ODRC’s Motion is ripe for review.
III. 	Standard of Review
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in
favor of the non-moving party.” Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.
2006). “Thus, ‘the mere existence of a scintilla of evidence in support of the plaintiff’s position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.’”
Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is “material” only “if its resolution might affect the
outcome of the suit under the governing substantive law.” 	Henderson, 469 F.3d at 487. 	At the
summary judgment stage, “[a] court should view the facts and draw all reasonable inferences in favor
of the non-moving party.” 	Pittman v. Experian Info. Solutions, Inc., 901 F.3d 619, 628 (6th Cir.
2018). 	In addition, “the moving party bears the initial burden of showing that there is no genuine
dispute of material fact.” 	Ask Chems., LP v. Comput. Packages, Inc., 593 F. App’x 506, 508 (6th
Cir. 2014). The moving party may satisfy this initial burden by “identifying those parts of the record
which demonstrate the absence of any genuine issue of material fact.” Lindsey v. Whirlpool Corp.,
295 F. App’x 758, 764 (6th Cir. 2008). “[I]f the moving party seeks summary judgment on an issue
for which it does not bear the burden of proof at trial,” the moving party may also “meet its initial
burden by showing that ‘there is an absence of evidence to support the nonmoving party’s case.’” Id.
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
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Once the moving party satisfies its burden, “the burden shifts to the non-moving party who
must then point to evidence that demonstrates that there is a genuine dispute of material fact for trial.”
Ask Chems., 593 F. App’x at 508–09. “[T]he nonmoving party may not simply rely on its pleading,
but must ‘produce evidence that results in a conflict of material fact to be solved by a jury.’” MISC
Berhad v. Advanced Polymer Coatings, Inc., 101 F.Supp.3d 731, 736 (N.D. Ohio 2015) (quoting Cox,
53 F.3d at 150).
IV. 	Analysis
A. 	ODRC is entitled to summary judgment on Plaintiff’s retaliation claim
In its Motion, ODRC argues that Plaintiff failed to exhaust her administrative remedies with
respect to her retaliation claim. 	(Doc. No. 31, PageID #1027–28.) 	ODRC asserts that “Plaintiff
neither checked the ‘retaliation’ box in her charge nor included any facts in her charge that would
indicate that she was bringing a charge based on retaliation.” (Doc. No. 31, PageID #1028.) Instead,
ODRC claims, “her charge was limited solely to age, race, and sex discrimination.” (Id.)
In her Opposition, Plaintiff argues that “ODRC was properly on notice of [Plaintiff’s]
retaliation claims because her retaliation claims reasonably grew out of the conduct she detailed in
her EEOC charge.” (Doc. No. 33, PageID #1382.) Plaintiff also asserts that she “filed her EEOC
charge pro se” and that “ODRC acknowledged her retaliation claims after [she] informed ODRC she
received the Hurt Feelings Report.” (Id.)
In its Reply, ODRC argues that “a retaliation claim does not automatically flow from a
discrimination claim in a charge.” (Doc. No. 36, PageID #1410.) ORDC asserts that “Plaintiff only
mentions that she was discriminated against as to her denial of the CNP position,” that she “does not
mention denial of OT . . . [the] man down radio, or . . . anything about the investigation into her
conduct reports.” 	(Id.) 	Thus, according to ODRC, “Plaintiff failed to even at a minimum, allege
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facts in her charge that would expand the scope of the EEOC’s investigation.” (Id.) ODRC further
argues that “the fact that Plaintiff filed her charge pro se does not save her retaliation claim from
dismissal for failure to exhaust.” 	(Id.) 	ODRC finally argues, without citation, that “any internal
complaint filed at any point during employment does not put the EEOC on notice that it is part of the
charge.” (Id. at PageID #1411.)
Generally, the failure to include a claim in a EEOC charge bars a plaintiff from bringing that
claim in court. 	See, e.g., Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361–62 (6th Cir.
2010). 	“The purpose of the requirement is to trigger an investigation, which gives notice to the
alleged wrongdoer of its potential liability and enables the EEOC to initiate conciliation procedures
in an attempt to avoid litigation.” Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004) (citing Davis
v. Sodexho, Cumberland College Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998)). Failing to state the
correct legal claim or conclusions in an EEOC complaint is not dispositive, however. Instead, in this
Circuit, a plaintiff can exhaust her administrative remedies if “the claim can be reasonably expected
to grow out of the EEOC charge.” Weigel v. Babtist Hosp., 302 F.3d 367, 367 (6th Cir. 2002) (quoting
Strouss v. Mich. Dep’t of Corr., 250 F.3d 336, 342 (6th Cir. 2001)). Accordingly, a claim is preserved
if the facts set forth in the EEOC charge “would prompt the EEOC to investigate a different,
uncharged claim.” Pemberton v. Bell’s Brewery, Inc., 150 F.4th 751, 761 (6th Cir. 2025) (quoting
Younis, 610 F.3d at 362). 	In answering this question, the Sixth Circuit has instructed that “pro se
complaints are construed liberally.” Id.
The Court finds ODRC’s citation to Younis dispositive. In Younis, the Sixth Circuit affirmed
summary judgment in the employer’s favor on the plaintiff’s retaliation claim for failure to exhaust
his administrative remedies. 	Younis, 610 F.3d at 362–63. 	The plaintiff’s pro se EEOC charge
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provided in relevant part:
I was subjected to two proficiency checks, around the last week of August 2005;
and, I was advised that I had failed both checks. Ultimately, I was discharged for
an alleged inability to pass Proficiency Checks.
I believe that I have been discriminated against because of my religion (Muslim)
and National Origin (Arab) in violation of Title Vii of the Civil Rights Act of 1964,
as amended.
Younis v. Pinnacle Airlines, Inc., No. 07-02356, 2008 U.S. Dist. LEXIS 146236, at *13 (W.D. Tenn.
Aug. 14, 2008). The Sixth Circuit found that “there is nothing in the narrative portion of the EEOC
charge that could be interpreted as claiming retaliation, nor is there any language that would have put
the EEOC or the employer on notice that [plaintiff] was alleging retaliation by [the employer].”
Younis, 610 F.3d at 363. It further found that “[t]he EEOC form included a specific check-off box
to indicate a charge of retaliation,” and while the plaintiff “marked other boxes on the form evincing
an intent to charge discrimination based on religion and national origin, he did not indicate that he
was alleging retaliation.” 	Id. at 363. 	Based on those facts, and in the context of evaluating the
plaintiff’s pro se EEOC charge, the Court concluded that the plaintiff had failed to exhaust his
administrative remedies.
Younis compels a finding that Plaintiff failed to exhaust her administrative remedies. 	Like
the plaintiff in Younis, Plaintiff did not check the “retaliation” box on her pro se EEOC charge and
listed or indicated that the discrimination was based on “Age, Race, [and] Sex.” 	(Doc. No. 23-2,
PageID #366.) 	Further, the narrative portion of the EEOC charge is substantially the same as the
charge at issue in Younis:
I began my employment with the Respondent in or around 1995. I have been in the
position of Registered Nurse since in or around July 2013. In or around 2022, I
applied for a promotion to the Nurse Practitioner position. I was not hired for the
position. The Respondent promoted a younger, White male who was less qualified
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and had less seniority than me.
I believe that I was discriminated against because of my race, Black, and my sex,
female, in violation of Title VII of the Civil Rights Act of 1964, as amended.
I also believe that I was discriminated against because of my age, 51 (Year of Birth:
1971), in violation of the Age Discrimination in Employment Act of 1967, as
amended.
(Id.)4 There is no explicit mention of retaliation, and the Court finds that “there is nothing in the
narrative portion of the EEOC charge that could be interpreted as claiming retaliation, nor is there
any language that would have put the EEOC or the employer on notice that [Plaintiff] was alleging
retaliation by [ODRC].” Younis, 610 F.3d at 363.
Therefore, under Younis, ODRC is entitled to summary judgment on Plaintiff’s retaliation
claim because Plaintiff failed to exhaust her administrative remedies. 	See also Davis v. Univ. of
Toledo, No. 25-3296, 2026 U.S. App. LEXIS 1633, at *20 (6th Cir. Jan. 22, 2026) (affirming
summary judgment in favor of employer on plaintiff’s retaliation claim because “while the charges
put the OCRC on notice of potential discrimination against Davis, they didn’t provide notice of
retaliation”); Woodling v. GeoBuild, LLC, No. 22-3499, 2023 U.S. App. LEXIS 1575, at *6–7 (6th
Cir. Jan. 20, 2023) (affirming dismissal of retaliation claim because the Plaintiff “failed to check the
box labelled ‘RETALIATION’, and there is nothing in the description of his charge that even hinted
at this claim”); Handlon v. Rite Aid Servs., LLC, 513 F. App’x 523, 528 (6th Cir. 2013) (holding that
4 The Court notes that the only EEOC charge in the record is attached to Plaintiff’s deposition transcript as Exhibit 2.
Plaintiff testified in her deposition that Exhibit 2 was “the charge I filed when I initially wrote the complaint in there. It
was amended with the retaliation inside of there as well.” (Elder Dep. 44:17–19.) The Court finds, however, that there
is no amended charge in the record, and Plaintiff has not produced one with her Opposition. Because ODRC met its
burden by pointing the Court to the EEOC charge in the record, Plaintiff’s burden is to “produce evidence that results in
a conflict of material fact to be solved by a jury.” Cox, 53 F.3d at 150. Because Plaintiff has not produced any amended
charges, the Court’s review is limited to the EEOC charge attached to Plaintiff’s deposition transcript. See Jones v.
Option One Mortg. Corp., 466 F. App’x 449, 454 (6th Cir. 2012) (rejecting nonmoving party’s argument concerning
evidence that “was never actually put before the district court”).
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“[s]ummary judgment was also proper with respect to Handlon’s retaliation claims under Title VII
and ELCRA” because “Handlon did not mention retaliation in her EEOC charge, nor did she ever
amend the charge to include this claim”).
Plaintiff’s argument that “ODRC acknowledged her retaliation claims after Elder informed
ODRC she received the Hurt Feelings Report” does not save the day for her. (Doc. No. 33, PageID
#1382.) Plaintiff points the Court to a September 12, 2023 or post-EEOC-charge email that she sent
to Shannon Olds. 	In that email, Plaintiff writes, among other things, that she received the Hurt
Feelings Report “after [she] complained to the HCA.” (Doc. No. 23-33, PageID #556.) Ms. Olds
responded:
I have read your complaint and appreciate your vulnerability in disclosing your
concerns. I will arrange to meet with you tomorrow to discuss since I was out of
the institution most of today.
There is no need to fear any retribution due to reporting information.
(Id. at PageID #555.)
Plaintiff does not offer any authority for her proposition that this email serves to excuse her
from exhausting her administrative remedies.5 And the Court could find none. As explained by the
Sixth Circuit, the purpose of the exhaustion requirement is twofold: “it gives the employer
information regarding the employee’s complaint, and it provides both the EEOC and the employer
an opportunity to attempt reconciliation.” Santiago v. Meyer Tool Inc., No. 22-3800, 2023 U.S. App.
LEXIS 14469, at *27 (6th Cir. June 8, 2023) (citing Younis, 610 F.3d at 361–62). “Hence, allowing
a Title VII action to encompass claims outside the reach of the EEOC charges would deprive the
5 And ODRC does not offer any competing authority. It argues, without citation, that “[t]he test is not whether the
employer could guess what claims the charging party is attempting to bring based on any internal complaint filed during
employment or events that allegedly occurred during employment.” (Doc. No. 36, PageID #1411.)
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charged party of notice and would frustrate the EEOC’s investigatory and conciliatory role.” Younis,
610 F.3d at 362. Thus, merely putting an employer on notice, and not the EEOC, would make the
exhaustion requirement meaningless.
For all these reasons, the Court finds that ODRC is entitled to summary judgment on
Plaintiff’s retaliation claim.
B. 	ODRC is entitled to summary judgment on Plaintiff’s discrimination claims
Plaintiff’s remaining claims are based on ODRC initially denying her promotion and denying
her overtime.6 (Doc. No 3, ¶¶ 31, 37.) The Court addresses each in turn below.
1. 	ODRC did not discriminate against Plaintiff when it promoted Glass over
her
In its Motion, ODRC does not dispute that Plaintiff can maintain a prima facie case for failure
to promote. (Doc. No. 31, PageID #1028.) Instead, it asserts that the reason why it promoted Glass
was based on legitimate nondiscriminatory reasons, and that Plaintiff cannot demonstrate that those
reasons were pretext. (Id. at PageID #1028–29.) As to the former, ODRC argues that it “selected
Glass for the Mansfield CNP position because his responses to the interview questions were clinically
stronger and more responsive than Plaintiff's responses and emphasized a collaborative approach to
focused care.” (Id. at PageID #1028.) As to pretext, ODRC argues that “Plaintiff cannot demonstrate
6 ODRC makes several arguments in its Motion that the Court declines to consider. Specifically, ODRC argues that
“Plaintiff also alleges both discrimination and retaliation because she was not provided with her own set of keys and man-
down radio when she was promoted to the CNP position, was allegedly not trained, and that Defendant failed to
investigate her incident or conduct reports.” (Doc. No. 31, PageID #1032.) The Court disagrees. Plaintiff does not allege
in the First Amended Complaint that these acts constitute discrimination. Her discrimination claims are limited to ODRC
denying her “a promotion and overtime for pre-textual reasons.” (Doc. No. 3, ¶¶ 31, 37.) By contrast, she alleges in her
retaliation claim that “Defendant failed to investigate or remedy Plaintiff’s reports of at least one inmate’s threatening
and taunting behavior” and that she was “treated differently than her Caucasian and/or male colleagues.” (Id. at ¶¶ 40–
41.) Because Plaintiffs’ discrimination claims are limited to the promotion and overtime, any discrimination claim related
to training, the man down radio or the keys is not properly before the Court. Otis v. Metro. Gov’t of Nashiville & Davidson
Cty., No. 3:15-cv-01512, 2017 U.S. Dist. LEXIS 171698, at *15, n.3 (M.D. Tenn. Oct. 17, 2017) (“Additionally, Metro
moves for summary judgment on Otis’ ADA and ADEA harassment claims, to the extent she brings them . . . Those
claims are not in the Complaint, and therefore Otis did not properly bring either claim”).
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pretext under any pretext avenue because she lacks evidence that Defendant promoted Glass over her
for any illegal reason.” (Id. at PageID #1030.) It asserts that “Defendant honestly believed that Glass
was a better candidate because of his superior performance in the interview, especially given that
Plaintiff failed to properly diagnose the hypothetical patients during her interview.” (Id.)
In her Opposition, Plaintiff does not dispute that Defendant set forth evidence of a legitimate
nondiscriminatory reason for promoting Glass. 	Instead, Plaintiff limits her argument to pretext.
Plaintiff argues that “a cursory review of the ODRC’s reasons for promoting Glass compared to both
Glass’ and Elder’s qualifications easily establish that Elder was more qualified.” 	(Doc. No. 33,
PageID #1384.) 	She asserts that “[a]ccording to Rader, Glass’s experience was not demonstrably
superior to Elder.” (Id.) Plaintiff argues that ODRC could not have “honestly believed Glass was
more qualified” because “ODRC turned a blind eye to qualifications and its own policies to hire a
white male over Elder, a black female.” 	(Id.) 	Plaintiff also points out that there was a scoring
discrepancy between the job postings because Erdos scored her “four points lower on the second
application” but Plaintiff submitted the “same information” with both applications. . (Id.) Plaintiff
asserts, without citation to the record, that “Had Erdos scored Elder an 11 on the September
application, Elder would have immediately been selected for the job.” (Id. at PageID #1385.) Finally,
Plaintiff asserts that Hensley, as Glass’s supervisor, “requested to have the position reposted just after
Glass obtained his Nurse Practitioner’s license.” (Id.)
In its Reply, ODRC argues that “Plaintiff has misrepresented Erdos’s role in the hiring
process” because “Erdos only screens applicants as a subject matter expert and scores them based on
what is on the application to determine who will receive an interview, not who will receive the
position.” (Doc. No. 36, PageID #1412.) ODRC asserts that “Plaintiff ignores the fact Erdos, the
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subject matter expert, does not know the race or sex of the applications while scoring the applications
and is not on the interview panel and has no decision in who is selected for the position.” (Id.) ODRC
further argues that Plaintiff’s “argument that she should have received the position based on this score
alone is incorrect and not supported by the record.” (Id.) ODRC next argues that “Rader was not part
of the interview panel” and that “[h]is opinion as to who was more qualified is irrelevant as to what
the interview panel honestly believed.” (Id.) ODRC further argues that “Plaintiff has provided no
evidence that the members of the interview panel did not honestly believe that Glass was more
qualified.” (Id. at PageID #1413.) ODRC finally argues that “Hensley was never deposed and she
states in her affidavit why she thought Glass was more qualified for the position” and that “[a]nything
outside of her affidavit is conjecture.” (Doc. No. 36, PageID #1414.)
Because Plaintiff has not pointed the court to any direct evidence of discrimination, the
McDonnell Douglas burden-shifting framework governs her failure to promote claims. 	Under that
framework:
a plaintiff must first establish a prima facie case of disparate treatment. [I]f the
plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant
to 	articulate 	some 	legitimate, 	nondiscriminatory 	reason 	for 	the 	employee’s
rejection. [S]hould the defendant carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext for
discrimination.
LeVine v. Dejoy, 64 F.4th 789, 797 (6th Cir. 2023) (internal citations and quotations omitted). Based
on the parties briefing, ODRC does not dispute that Plaintiff can prove her prima facie case, and
Plaintiff does not dispute that ODRC has carried its burden to articulate some legitimate,
nondiscriminatory reason for why it promoted Glass over Plaintiff. 	Therefore, the Court’s analysis,
at this stage, is to determine whether Plaintiff presented evidence of pretext that would create a
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genuine dispute of material fact for trial.
“Plaintiffs ordinarily show pretext ‘by showing that the proffered reason[] had no basis in
fact; (2) was insufficient motivation for the employment action; or (3) did not actually motivate the
adverse employment action.” 	Briggs v. Univ. of Cincinnati, 11 F.4th 498, 515 (6th Cir. 2021)
(quoting Joostberns v. United Parcel Servs., Inc., 166 F. App’x 783, 790–91 (6th Cir. 2006)). “This
burden is not heavy, though, as summary judgment is warranted only if no reasonable juror could
conclude that the employer’s offered reason was pretextual.” George v. Youngstown State Univ., 966
F.3d 446, 462 (6th Cir. 2020) (citing Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 620 (6th Cir.
2006); Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 547–48 (6th Cir. 2004)).
When a plaintiff bases pretext on qualifications evidence, “‘the evidence must be of sufficient
significance itself to call into question the honesty of the employer’s explanation’ for its hiring
decision.” LeVine, 64 F.4th at 798 (quoting Bender v. Hecht’s Dep’t Stores, 455 F.3d 612, 627 (6th
Cir. 2006)). 	And while the Sixth Circuit recognizes that employers “are generally free to choose
among qualified candidates,” the Sixth Circuit has instructed district courts to consider the following
when ruling on a motion for summary judgment:
[i]f a factfinder can conclude that a reasonable employer would have found the
plaintiff to be significantly better qualified for the job, but this employer did not,
the factfinder can legitimately infer that the employer consciously selected a less-
qualified candidate—something employers do not usually do, unless some other
strong consideration, such as discrimination, enters into the picture.
Id. (quoting White v. Baxter Healthcare Corp., 533 F.3d 381, 393 (6th Cir. 2008)).
“To that end, comparative qualifications ‘may be probative of whether the employer’s reasons
are pretexts for discrimination.’” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
259 (1981)). 	“Relative qualifications establish triable issues of fact as to pretext where the evidence
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shows that either (1) the plaintiff was a plainly superior candidate, such that no reasonable employer
would have chosen the latter applicant over the former, or (2) plaintiff was as qualified if not better
qualified than the successful applicant, and the record contains other probative evidence of
discrimination.” Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 815 (6th Cir. 2011) (cleaned up).
Plaintiff never once argues that she was “plainly superior” to Glass. Plaintiff’s argument is
based primarily upon the language of the CBA. Under the CBA, “[a]mong those that are qualified[,]
the job shall be awarded to the applicant with the most state seniority unless a junior employee is
significantly more qualified based on the listed criteria.” (Doc. No. 23-32, PageID #542.) Plaintiff
does not assert that Glass was not qualified for the CNP position. (Doc. No. 33, PageID #1373–74
(“Elder met the minimum qualifications and was awarded an interview along with two other
candidates that also scored a 7, Jesse Glass and Trish Kovaleski”). Instead, Plaintiff’s position is that
she was “more qualified” and thus Glass’ experience “was not demonstrably superior to Elder’s” to
be selected for the position.” (Doc. No. 33, PageID #1376.)
Indeed, the record does not support a finding that Plaintiff was a “plainly superior candidate.”
The record certainly shows that Elder had more experience than Glass. Elder received her registered
nurse license in 2009, while Glass received his in 2014. (Glass Dep. 11:14–17; Elder Dep. 15:1–5.)
But they have comparable experience working at ODRC. 	Plaintiff began working as a nurse for
ODRC in 2013 and Glass began working as a nurse for ODRC in 2014. (Glass Dep. 9:6–15; Elder
Dep. 24:21–25:1.) 	Further, Plaintiff and Glass have the same level of education (e.g. Master of
Science of Nursing). (Glass Dep. 9:19–10:1; Elder Dep. 14:17–15:11.) And they had a similar level
of training. (Bond Dep. 29:21–30:4.)
Bond, the only member of the hiring panel deposed, testified that “they were more equal”
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based on their employment applications and interviews. (Id. at 38:12–19.) The other members of the
interview panel submitted affidavits where they all aver that Glass had a better interview than Elder
and that Glass answered clinical questions better than Elder. (Doc. No. 31-2, PageID #1042; Doc.
No. 31-11, PageID #1359; Doc. No. 31-13, PageID #1362.) Based on the record, the Court cannot
say that Elder was “plainly superior” to Glass. The only qualification that Elder had over Glass was
experience and seniority. 	This alone, however, is not enough to establish that she was “plainly
superior.” See Valdez v. Fed. Express Corp., No. 2:22-cv-02267-TLP-cgc, 2025 U.S. Dist. LEXIS
269082, at *22 (W.D. Tenn. Jan. 6, 2025) (finding that a plaintiff having “notably more flight hours
than the selected captain” standing alone did “not show that he was the plainly superior candidate”);
Taylor v. Ingham Cnty. 30th Jud. Cir. Ct., No. 1:20-cv-1043, 2023 U.S. Dist. LEXIS 232183, at *24
(W.D. Mich. Mar. 24, 2023) (holding the plaintiff “cannot demonstrate a triable issue that she was
the plainly superior candidate” based on seniority alone).
Having found that Plaintiff was not the “plainly superior candidate,” Plaintiff’s promotion
claim fails at this stage unless she has presented “other probative evidence of discrimination.”
Vizcarrondo v. Ohio Dep’t of Rehab. & Corr., No. 1:18-CV-01255, 2019 U.S. Dist. LEXIS 203181,
at *41 (N.D. Ohio Nov. 22, 2019) (Barker, J.). The Court finds that she has not.
Plaintiff points to three facts establishing pretext. First, Plaintiff asserts that “[a]ccording to
Rader, Glass’s experience was not demonstrably superior to Elder.” (Doc. No. 33, PageID #1384.)
According to Plaintiff, “Rader immediately spotted a ‘glaring issue’ because the interview panel
failed to hire the most senior applicant pursuant to the CBA.” 	(Id.) 	Plaintiff misstates Rader’s
testimony. 	Rader did not testify that “the interview panel failed to hire the most senior applicant
pursuant to the CBA” as Plaintiff suggests. (Id.) In his deposition, Rader testified as follows:
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Q: Okay. And then you made a determination that there was no contract violations;
right?
A. Yes, but no.
Q. Okay.
A. So I -- I saw some issues with the case when I reviewed the packet.
Q. All right.
A. I made recommendations to the administration. I made observations to the
administration. And this is -- this is an example that I mentioned earlier in which
the one side or the other is unwilling or unable to come to resolution. So this is a
situation where I made observations and I had concerns about the packet, but I was
not in a position to settle the case, so I had to deny it at the Step 2 hearing.
Q. Okay. I'm going to take this down, because it's a little distracting right now. Let's
talk about the observations that you made. So what observations specifically did
you make that you found -- that you felt were problematic?
A. Yeah. So first and foremost, the glaring issue for me was that Jesse Glass was a
less senior employee. The contract language affords management the ability to
select a less senior employee if that less senior employee is demonstrably superior.
I think it’s demonstrably superior. I did not feel as though Mr. Glass on paper was
demonstrably superior, and I did not think that I would be able to adequately defend
management’s assertion that he was demonstrably superior.
Q. Okay. So when you made that conclusion, what did you do?
A. I worked with the local labor officer, a young lady by the name of Janet Tobin,
that we should all be super jealous of, because she’s retired now, and made my
observations known to her and asked her to speak to the decision makers. Because
at that point, I didn’t know who the decision makers were. Please understand, some
institutions, the warden makes all the decisions when it comes to some of these
selections. Other institutions, they let deputies or department heads make the final
decision. So in this particular case, I wasn’t sure if it was the warden or if it was the
HCA, healthcare administrator, excuse me, or if it was a deputy. And I asked Janet
to have a conversation with some people about how and why we arrived at that.
And this is one of those situations where I -- I trusted the local labor officer to help
carry the message.
* * *
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Q: Okay, thank you. All right. So basically, from your perspective, Janet went and
talked to the decision maker and then relayed that information back to you; right?
A. Yes.
Q. What information did Janet relay to you?
A. That they were going to stick with Jesse.
(Rader Dep. 40:22–43:8, 43:24–44:9.) 	While Rader certainly felt that Glass was not superior “on
paper,” he ultimately denied Plaintiff’s grievance. (Doc. No. 24-3, PageID #720.) In his decision,
Rader concluded in relevant part:
Discussion and findings: Having reviewed documents and heard related testimony
it is the finding of the Step 2 Hearing Officer There is no dispute both parties met
minimum qualifications of the position. Article 30.02 gives Management the right
to “use selection devices, proficiency tests and/or assessments to determine if an
applicant meets minimum qualifications and, if applicable to rate applicants
pursuant to this Section.” Management utilized an interview and determined the
selected candidate was in fact superior to the Grievant and was awarded the
position. There are no contract violations, this grievance is denied at Step 2.
(Id. at PageID #720 (emphasis added).) Having found that “there are no contract violations,” Rader
implicitly concluded that Glass was “significantly more qualified” for purposes of the CBA based
upon Glass’ performance during his interview.
Second, Plaintiff correctly points out that “Erdos scored [Plaintiff] four points lower on the
second application.” 	But the undisputed evidence in the record shows that Erdos was unaware of
Plaintiff’s race and gender when scoring Plaintiff’s applications. Bond avers in his affidavit:
During screening, Defendant’s assigned Subject Matter Expert reviews each
applicant’s application of the presences of requisite minimum qualifications, which
generally includes certain educational and experience requirements in addition to
specific job-related certifications and licensures. The application does not indicate
the race, sex or other protected class of the application.
(Doc. No. 31-4, ¶ 9.) 	Upon review of Plaintiff’s applications, neither mention her race or gender.
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(Doc. No. 23–15; Doc. No. 23-17.) Erdos also avers in her affidavit that she “did not witness the use
of race, sex, or age as a criterion for selection of the position during my interaction with the process.”
(Doc. No. 31-14, PageID #1363.) Plaintiff has not presented any evidence that Erdos was even aware
of Plaintiff’s race or gender while completing her evaluation or that Erdos’s scoring discrepancy was
motivated by some improper purpose.
Furthermore, even assuming for the sake of argument that the evidence did show Erdos was
aware of Plaintiff’s race or gender, the scoring discrepancy does not show pretext. Plaintiff, without
citation to anything in the record, asserts that “[h]ad Erdos scored Elder an 11 on the September
application, Elder would have immediately been selected for the job.” (Doc. No. 33, PageID #1385.)
Upon review of the record, Plaintiff is incorrect. Nothing in the CBA would require ODRC to select
Plaintiff based on Erdos’ scores alone. ODRC’s “Procedures for Recruitment, Review and Selection
of Applicants” likewise do not have such a requirement. (Doc. No. 24-2.) Put simply, there is nothing
in the record to suggest that had Erdos scored Plaintiff consistently between the applications that she
would have immediately gotten the promotion or that Glass would not have received an interview.7
Third, Plaintiff asserts that (1) “Glass testified that he was referred to apply for the September
CNP position by an employee and spoke with Hensley about the position;” (2) “Hensley requested to
7 Indeed under “Procedures for Recruitment, Review and Selection of Applicant,” Plaintiff and Glass could still have
received an interview even if Erdos scored Plaintiff’s applications in the same manner. The Procedures provide that
interviews will be scheduled “[a]fter the applicant pool/schedule interview list is determined.” (Doc. No. 24-2, PageID
#714.) To determine the applicant pool, the subject matter expert “shall review each application and place in the proceed
or not proceed pile.” (Id. at PageID #715) “The criteria for the proceed pile shall be the absolute minimal experience an
applicant has to receive further consideration.” 	(Id.) 	“Once the proceed pile is determined, the SME shall begin
completing the SME Application Review document on each applicant.” (Id.) After completing the applications, the SME
has the option to “[i]nterview all applicants in the proceed pile” or “[c]omplete the SME Application Review document
on each applicant in the proceed pile” and indicate whether to schedule an interview for each applicant. (Id. at PageID
#715–16.) 	Thus, even if Erdos scored Plaintiff consistently between the two applications, ODRC could still have
interviewed Glass under the “Procedures for Recruitment, Review and Selection of Applicant.”
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have the position reposted just after Glass obtained his Nurse Practitioner’s license;” (3) Hensley was
“Glass’s supervisor at the time he applied for the CNP position” so she “was aware Glass wanted to
apply;” and (4) “[w]hile Hensley purports she was a ‘non-participant’ in the hiring panel for the
September position, her affidavit states she participated in panel discussions and gave her opinion
about the applicants, specifically Glass.” 	(Doc. No 33, PageID #1385.) 	These facts, according to
Plaintiff, amount to pretext.
The Court disagrees. Plaintiff seems to be arguing that if a supervisor helps another employee
apply for a promotion, that must suggest that there was discriminatory animus towards another
employee who did not get the promotion. Plaintiff offers no authority for why this amounts to pretext
and she has not cited to any portion of the record to support her assertions. “[M]ere personal beliefs,
conjecture and speculation are insufficient to support an inference of [] discrimination.” Grizzell v.
City of Columbus Div. of Police, 461 F.3d 711, 724 (6th Cir. 2006) (quoting Woythal v. Tex-Tenn
Corp., 112 F.3d 243, 247 (6th Cir. 1997)). 	There is simply nothing in the record to suggest that
Hensley’s role in the hiring process amounted to pretext. See Kuklinski v. Mnuchin, 829 F. App’x
78, 84 (6th Cir. 2020) (“Kuklinski does not explain how these facts, or conjectures, demonstrate
pretext nor does he provide caselaw supporting that conclusion”); 	Harris v. City of Akron, 836 F.
App’x 415, 421 (6th Cir. 2020) (“A court may not reject an employer’s explanation of its action
unless there is sufficient basis in the evidence for doing so”) (emphasis in original).
In sum, the Court finds that Plaintiff has not presented any probative evidence of
discrimination to establish pretext. 	The Court therefore finds that ODRC is entitled to summary
judgment on Plaintiff’s failure to hire claims because no reasonable juror could conclude that the
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ODRC’s offered reason was pretextual.8
2. 	ODRC did not discriminate against Plaintiff when it denies her overtime
requests
In its Motion, ODRC argues that “Plaintiff cannot demonstrate the fourth element of her prima
facie case as it relates to the denial of Nurse 1 overtime while she was employed as a CNP because
she cannot establish that she was treated differently than similarly-situated employees.” (Doc. No.
31, PageID #1030.) 	It asserts that after the COVID-19 pandemic, “a directive was issued that no
CNP employees were permitted to work Nurse 1 overtime.” (Id. at PageID #1031.) ODRC concludes
that “[b]ecause the directive was for all employees, regardless of race or sex, Plaintiff cannot
demonstrate a claim of discrimination based on her denial of overtime.” (Id.) ODRC further argues
that it has “a legitimate nondiscriminatory, nonretaliatory reason for its denial of overtime” because
“it honestly believed that both the directive issued and the Agreement prevented Plaintiff from
working Nurse 1 overtime while employed as a CNP.” (Doc. No. 31, PageID #1032.) ODRC then
argues that “Plaintiff cannot demonstrate that these reasons are pretextual given that she was never
given another reason for the denial of overtime and there is no evidence that she was denied this
overtime for illegal reasons.” (Id.) It asserts that “[a]lthough Plaintiff eventually filed a grievance
related to the overtime and the arbitrator found in her favor, the arguments made at the arbitration by
the Defendant support the fact that it honestly believed Plaintiff could not work overtime as a Nurse
8 Having found that Plaintiff has not presented any evidence of pretext, the Court need not address ODRC’s argument
that Plaintiff’s failure to hire claims fail under the “honest belief” rule. Briggs, 11 F.4th at 515 (“Under the honest belief
rule, a pretext argument falling into the first category—asserting that the reason given by the employer has no basis in
fact—may be defeated by conclusive evidence that the defendant honestly believed its proffered reason, and that the
belief was reasonably based on particularized facts that were before it at the time the decision was made) (quotations
omitted). 	And even if the Court were to analyze ODRC’s argument, it is skeptical the honest belief rule has any
applicability to Plaintiff’s pretext argument because Plaintiff does not appear to be arguing that ODRC’s legitimate
nondiscriminatory basis had “no basis in fact.” See id.; see also Gray v. State Farm Mut. Auto. Ins. Co., 145 F.4th 630,
650 (6th Cir. 2025) (“The concept applies in a targeted way to a small set of employment disputes”).
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1 while employed by Defendant as a CNP.” (Id.)
In her Opposition, Plaintiff argues that “[d]espite the alleged agency wide policy, this practice
was commonplace at Marion and Mansfield.” (Doc. No. 33, PageID #1385.) She asserts that “[a]t
Mansfield, Glass specifically testified that he was allowed to work overtime as a Nurse 1 after he was
promoted to a CNP” and that two other Caucasian nurses were allowed overtime. 	(Id.) 	Plaintiff
further argues that she was the only CNP denied overtime even after pointing this out to her supervisor
and after she won her grievance. 	(Id. at PageID #1386.) 	Plaintiff also argues that this policy is
pretext. 	Plaintiff asserts that “[w]hile ODRC purports an alleged ‘agency wide policy’ against
allowing CNPs to work overtime as Nurse 1 positions existed, there has been no policy produced.”
(Id. at PageID #1387.) 	Plaintiff argues that “[a]t least two prisons, Mansfield and Marion, allowed
multiple CNPs . . . to work overtime for Nurse 1 shifts.” (Id.) Plaintiff further asserts that “Glass
even stated this was an established ‘past practice.’” (Id.)
In its Reply, ODRC argues that “only during COVID-19 were CNPs allowed to work Nurse
1 overtime, a practice that ceased by directive statewide from Defendant’s central office.” (Doc. No.
36, PageID #1414.) It asserts that “out-of-class overtime for CNPs occurred post-pandemic at merely
two of Defendant’s twenty-eight institutions (Mansfield and Marion) and prior to Plaintiff becoming
a CNP.” 	(Id.) 	According to ODRC, “these were isolated exceptions attributable to lack of
compliance and not accepted or expected practice after the pandemic as Plaintiff suggests” and
“Mansfield only used a CNP for Nurse 1 overtime solely to avoid mandation of another Nurse 1, not
on a voluntary basis like Plaintiff desired.” 	(Id. at PageID #1414–15.) 	ODRC further argues that
“Plaintiff, who at all times relevant herein was administratively a Richland employee, even when
splitting her time between Mansfield and Richland, challenged not being able to work Nurse 1
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overtime at Richland, not Mansfield or Marion.” (Id. at PageID #1415.) ODRC argues that “Plaintiff
has pointed to no other CNP who was allowed to work overtime as a Nurse 1 at Richland after her
arbitration award while she was being denied.” (Id.)
The Court need not analyze the parties’ arguments concerning Plaintiff’s prima facie case,
because even if she has established a prima facie case, she has not produced any evidence of pretext.
Plaintiff does not dispute that ODRC has presented evidence of a legitimate, nondiscriminatory
reason for why it denied overtime, namely that “it honestly believed that both the directive issued and
the Agreement prevented Plaintiff from working Nurse 1 overtime while employed as a CNP.” (Doc.
No. 31, PageID #1032.) 	She asserts that this is pretext because (1) “there has been no policy
produced;” 	(2) 	“Steward 	testified 	that 	ODRC 	found 	that 	allowing 	employees 	with 	higher
classifications to work in lower classifications so helpful that the practice continued well after Covid;”
(3) “[a]t least two prisons, Mansfield and Marion, allowed multiple CNPs, including Glass, Newman,
and Slone, to work overtime for Nurse 1 shifts;” and (4) “Glass even stated this was an established
‘past practice’ that alleviated a lot of ‘patient trips to the hospital and [saved the] state money.’” (Doc.
No. 33, PageID #1387.) These facts, according to Plaintiff, establish that ODRC’s proffered reason
is “factually inaccurate.” (Id.)
Plaintiff is correct that no written formal policy in the record. But Rader testified that after
recovering from COVID, “our Operations Support Center Pushed out messages to the institutions to
cease the practice” of permitting CPNs to work Nurse 1 overtime. 	(Rader Dep. 68:23–69:1.) 	In
preparing for Plaintiff’s grievance hearing, he “found incredibly isolated incidents of CNPs working
RN overtime without the agency’s knowledge or permission.” (Id. at 69:7–10.) Some of the isolated
incidents occurred at ManCi. 	(Id. at 70:1–22; Elder Dep. 112:21–23.) 	But there is nothing in the
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record suggesting that this occurred at Richland. 	(Shelton Dep. 35:7–12; Elder Dep. 112:15–20.)
Indeed, the arbitrator found that of the seventy-five CNPs working across ODRC’s twenty-five
locations, only three CNPs worked Nurse 1 overtime, and those three CNPs “did so without agency
permission.” (Doc. No. 23-13, PageID #419.)
When Shelton denied Plaintiff’s overtime request at Richland, he was unaware of nurse
practitioners working overtime at ManCi. (Shelton Dep. 41:13–19 (“The only ones that I was aware
of was Jodie Slone was working at Marion, but I don’t know in what capacity”).) Instead, he denied
the request pursuant to a directive for nurse practitioners to not work RN overtime that he received
from his regional nurse administrator:
Q: All right. And so essentially you followed the process that was put in place by,
I assume, your supervisors regarding the interpretation of whether or not Sheila
could work overtime. Is that accurate?
A: Correct.
Q: Okay.
A: I just followed directives from my immediate supervisors, so –
(Shelton Dep. 31:16–32:8, 36:11–21.) Plaintiff has not presented evidence establishing that such a
directive did not actually exist or that Shelton denied Plaintiff’s request for overtime for any improper
purpose.
Glass’ testimony that “the past practice was that NPs were allowed to RN shifts overtime”
does not move the needle in Plaintiff’s favor. 	Glass never testified that ODRC had a statewide “past
practice” of permitting CNPs to work Nurse 1 overtime and he did not testify that the “past practice”
occurred at Richland. (Glass Dep. 31:15–32:23.) And as explained above, the record reflects that
the “past practice” Glass described was confined to ManCi. Plaintiff has simply not produced any
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evidence suggesting otherwise.
In sum, the Court finds that ODRC is entitled to summary judgment on Plaintiff’s
discrimination claims regarding the denial of overtime. 	The Court therefore finds that ODRC is
entitled to summary judgment on Counts One and Two of the Amended Complaint.
V. 	Conclusion
For the reasons set forth herein, ODRC’s Motion for Summary Judgment (Doc. No. 31) is
GRANTED.
IT IS SO ORDERED.
s/Pamela A. Barker
PAMELA A. BARKER
Date: February 11, 2026 	U. S. DISTRICT JUDGE
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