Full opinion text
MEMORANDUM AND ORDER HOLSCHUH, District Judge. This matter is before this Court on a motion for summary judgment filed by the defendants (Record at 29), plaintiff’s memorandum in response (Record at 61), and the defendants’ reply memorandum. (Record at 67.) The motion has been fully briefed and is ready for decision. J. FACTUAL BACKGROUND The plaintiff is a school teacher with the responsibility of educating and guiding students with various developmental disabilities. The plaintiff is employed by the defendant, the Mt. Vernon Board of Education, as a teacher at the Dan Emmett Elementary School, Mount Vernon, Ohio. Named defendants also include K. Lee Rhoades, Principal of the Dan Emmett Elementary School, and Jeffrey R. Sittason, the Superintendent of Schools; both are employees of the Mt. Vernon Board of Education. This lawsuit stems from a series of communications and events pertaining to the plaintiff’s request for pregnancy and parental leave. On January 28,1994, the plaintiff sent a letter to Dr. Robert Truman, Director of Instructions, requesting sick leave and also parental leave under the Family and Medical Leave Act (FMLA). The plaintiff stated that she would be on sick leave through February 2, 1994 and requested that her FMLA leave begin on February 2, 1994 and last until released from her doctor’s care or no later than May 12, 1994. (Plaintiff’s Exhibit 37.) The plaintiff also inquired about insurance coverage during her parental leave. (Id.) On February 17, 1994, Director Truman responded to the plaintiff, stating that she had previously used 5.1 weeks of sick leave which would be deducted from the 12 weeks granted by the FMLA and would result in the FMLA leave expiring on March 18, 1994. The letter further advised plaintiff that thereafter she would be responsible for the total insurance premiums under the school district’s insurance program. (Plaintiff’s Exhibit 4.) On February 27, 1994, the plaintiff’s child was born. On March 1, 1994, Director Truman wrote to congratulate the plaintiff, to inform her that she obviously could request parental leave, and to inform her that if the first day of leave is after January 1 in any school year, the leave shall be for the remainder of the school year or at a time otherwise mutually agreed to pursuant to the parental leave provision of the Master Contract, a collective bargaining agreement (CBA). (Plaintiffs Exhibit 42.) On March 16,1994, Director Truman wrote to the plaintiff indicating that parental leave must begin on the date of her child’s birth. In the March 16 letter, Director Truman also indicated that this would require the plaintiff to take leave until the end of the school year. Furthermore, according to the letter, plaintiff was required to begin making monthly payments of $546.12 for medical insurance as of March 31, 1994. (Defendants’ Exhibit K.) Simultaneously, on March 16,1994, the plaintiff wrote to Superintendent Sittason informing him that she would be able to return to work on April 26, 1994. (Plaintiffs Exhibit 44 and Defendants’ Exhibit M.) In response, on March 18, 1994, Superintendent Sittason denied the plaintiffs request to return on April 26, 1994, citing the CBA requirement that parental leave “granted after January 1 of a given year shall be for the remainder of that school year, unless it is otherwise mutually agreed to.” Superintendent Sittason expressed his feeling that it would be in the best interest of the children that plaintiffs parental leave continue for the remainder of the school year and that therefore “we do not mutually agree to your returning April 26.” (Plaintiffs Exhibit 36). On March 24, 1994, the plaintiff wrote to Superintendent Sittason to express her disagreement with the position that she could not return to work during the remainder of the school year and her belief that it was the school district’s obligation to pay for her insurance in April “since I will be working in the month of April.” (Plaintiffs Exhibit 45.) The plaintiffs letter generated this response from Director Truman on March 25, 1994: Your parental leave will be granted from February 2, 1994, the date you requested in your letter of January 28, 1994. It will be for the balance of the 1993-94 school year. In accordance with the Master Contract, you have the option of returning for the 1994-1995 school year. You will need to contact Nancy Sinclair regarding payment of whatever insurances you wish to carry before March 31, 1994. You absolutely need to pay your insurance premium responsibility, otherwise you do not have coverage for April 1994. (Defendants’ Exhibit N.) Section 705(1) of the CBA provides: Upon written notice to the superintendent a teacher shall be granted a parental leave of absence without pay. If the first day of the leave is prior to January 1, the leave granted shall be for the remainder of the school year or at a time otherwise mutually agreed to. If the first day of the leave is after January 1 in any school year, the leave shall be for the remainder of the school year or at a time otherwise mutually agreed to and at the employee’s option provided the Board is notified prior to July 10 of that year, it shall be for all of the succeeding school year. On April 4, 1994, Superintendent Sittason wrote to the plaintiff to explain that the FMLA mandates payment of her insurance coverage from February 5, 1994 until April 30, 1994; however, after the date of April 30, 1994, the plaintiff would have to make monthly payments to maintain her insurance. Specifically, he wrote: It is the Administration’s understanding that the Family Medical Leave Act in your case began on February 5, 1994. The 12 weeks of the act would mandate payment by the Board of Education of its share of medical, dental and life insurance benefits through April 30, 1994. Your obligation will be $26.50 per month for medical and dental benefits and $3.92 per month for life insurance benefits. After the date of April 30, 1994, to maintain medical, dental and life insurance benefits will require monthly payments $546.12 for medical and dental benefits and $3.92 for life insurance. You will remain eligible to be on Board insurance throughout the remainder of your parental leave by paying to the Board of Education the established rate for medical, dental and life insurance and any increases in premiums as they become due. Payment for the insurance is due by the first day of each month. Therefore, we are returning your check of $550.04 dated March 31, 1994. Please remit payment of $26.50 and $3.92 for April coverage. (Plaintiffs Exhibit 48.) The plaintiff maintains that her performance evaluations deteriorated following her request for FMLA leave time. According to the plaintiff, in March 1990, Principal Rhoades ranked the plaintiff as excellent, outstanding or very good in all of the available categories; and wrote “you are doing a fine job and fitting in well with the rest of the staff.” (Plaintiffs Exhibit 22.) In the winter of 1993-94, the tone of the evaluations changed and the plaintiff received several negative evaluations. For example, during her pregnancy, Principal Rhoades prepared an observation report that was generally positive, while containing some criticism of the plaintiffs work with a particular student. (Plaintiffs Exhibit 49.) On March 2, 1994, during the plaintiffs parental leave, Principal Rhoades issued an evaluation of the plaintiff, outlining necessary improvements and providing her with a one-year probationary contract. On March 16, 1994, the plaintiff responded to the negative points, disputing a December 16, 1993 teacher observation report. (Defendants’ Exhibit J.) The plaintiff filed a charge of discrimination with the Ohio Civil Rights Commission on March 30, 1994. On April 14, 1994, Principal Rhoades issued a second evaluation letter containing additional negative comments pertaining to the plaintiffs job performance. (Plaintiffs Exhibit 9.) Ultimately, a one year probationary contract was offered to the plaintiff, which is permitted by the CBA after a teacher has been given a multi-year contract for “reasons that have been identified in the evaluation process.” (Plaintiffs Exhibit 3.) Plaintiff returned to her former teaching position at the beginning of the 1994-1995 school year. (Defendants’ Exhibit AA at p. 75.) After a plan had been developed in response to the evaluations, plaintiff was subsequently awarded a three year contract. (Defendants’ Exhibit AA at pp. 76-77; 86-87.) Plaintiffs action in this Court is based upon claims of (1) a violation of 42 U.S.C. § 2000e (Title VII) and O.R.C. § 4112.02, due to alleged sex discrimination and alleged retaliation;. (2) a violation of the FMLA, 29 U.S.C. § 2601, et seq.; (3) a violation of 42 U.S.C. § 1983 (§ 1983); and (4) intentional inflection of emotional distress' under Ohio law. Defendants have moved for summary judgment on all of plaintiffs claims. II. SUMMARY JUDGMENT Fed.R.Civ.P. 56(c) provides: [Summary judgment] ... shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. “[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984). Summary judgment will not lie if the dispute about a material fact is genuine; “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir.1978). Therefore, summary judgment will be granted “only where the moving party is entitled to judgment as a matter of law, where it is quire clear what the truth is ... [and where] no genuine issue remains for trial, ... [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.” Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)); accord County of Oakland v.. City of Berkley, 742 F.2d 289, 297 (6th Cir.1984). In making this inquiry, the standard to be applied by the Court mirrors the standard for what was formerly referred to as a directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson 477 U.S. at 250, 106 S.Ct. 2505. “The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. Accordingly, although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules, which are designed “to secure the just, speedy and inexpensive determination of every action.” Celotex, 477 U.S. at 327, 106 S.Ct. 2548(quoting Fed.R.Civ.P. 1). In a motion for summary judgment the moving party bears the “burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (footnote omitted); accord Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). Inferences to be drawn from the underlying facts contained in such materials must also be considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Watkins v. Northwestern Ohio Tractor Pullers Ass’n, 630 F.2d 1155, 1158 (6th Cir.1980). Additionally, “unexplained gaps” in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. Adickes, 398 U.S. at 157-60, 90 S.Ct. 1598. If the moving party meets its burden and adequate time for discovery has been provided, summary judgment is appropriate if the opposing party fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The existence of a mere scintilla of evidence in support of the opposing party’s position is insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e). III. DISCUSSION A. THRESHOLD ISSUE — THE COLLECTIVE BARGAINING AGREEMENT Defendant, the Mount Vernon Board of Education (the Board) and the Mount Vernon Education Association (the Association), of which plaintiff was a member, following collective bargaining negotiations, entered into a CBA effective August 1, 1993 to June 30, 1995. The CBA contains provisions for resolution of grievances, defined as disagreements involving a work situation in which a teacher, group of teachers and/or the teachers association believe there has been a violation, misinterpretation or misapplication of the CBA or rules, regulations, and procedures of the administration and the Board. Step Four of the grievance procedure is arbitration and “the decision of the arbitrator is binding on the parties.” CBA § 201. In the present case, the teachers association did in fact file a grievance on behalf of plaintiff, which was based on the refusal of the superintendent to permit plaintiff to return to work on April 26, 1994; the grievance proceeded to arbitration. The grievance involved a dispute regarding the proper interpretation of the language in § 705 of the CBA and not the application of the FMLA or any other statute. The arbitrator held that grievance was not timely filed, but in what the arbitrator himself described as dictum, he concluded that the language of § 705 was clear and that it “most likely supports the Board’s position that it was under no obligation to allow Ms. O’Hara to return midyear.” It is the defendants’ position that all of plaintiff’s claims are subject to the grievance procedures of the CBA and that, pursuant to those procedures and Ohio law, summary judgment should be rendered against plaintiff. Defendants point out that O.R.C. § 4117.10(A) provides, in part, that, “an agreement between a public employer and an exclusive representative entered into pursuant to this chapter governs the wages, hours, and terms and conditions of public employment covered by the agreement” and that, “If the agreement provides for a final and binding arbitration of grievances, public employers, employees, and employee organizations are subject solely to that grievance procedure ...” That section also provides that, “Laws pertaining to civil rights ... prevail over conflicting provisions of agreements between employee organizations and public employers.” The CBA further provides that: This master contract supersedes and prevails over all statutes of the State of Ohio (except as specifically set forth in Section 4117.10(A) of the Ohio Revised Code), and all policies, rules, and regulations of the Board, (the “Supremacy” provision, CBA § 105). 1. Title VII Claims In the opinion of this Court, plaintiff is not required to submit her Title VII claims to arbitration and be bound by the arbitrator’s decision. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) the Supreme Court specifically held that a plaintiff who had pursued a racial discrimination claim through arbitration under a collective bargaining agreement could still bring a Title VII claim in federal court; See also, Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), cert. denied, 471 U.S. 1054, 105 S.Ct. 2116, 85 L.Ed.2d 480 (1984) (plaintiffs who had pursued a wage claim in grievance procedure under a collective bargaining agreement could still bring a Fair Labor Standards Act claim in federal court); McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1985) (plaintiff who had pursued wrongful discharge claim through arbitration under a collective bargaining agreement could still bring a § 1983 claim in federal court); but cf., Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (plaintiff required to submit an Age Discrimination in Employment Act claim to arbitration pursuant to an employment agreement). In Gilmer, the Supreme Court held that an arbitration clause in a registration form required for employment as a securities dealer and Rule 347 of the New York Stock Exchange Rules, which required arbitration of any controversy arising out of the dealer’s employment be settled by arbitration, was enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1-15 (1988) (FAA) and that an action brought by a securities dealer for age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (ADEA) was subject to mandatory arbitration. In so holding, the Supreme Court did not overrule Gardner-Denver, but distinguished it as follows: First, those cases (Gardner-Denver and its progeny) did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions. Second, because the arbitration in those eases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern therefore was the tension between collective representation and individual statutory rights, a concern not applicable to the present case. Finally, those cases were not decided under the FAA, which, as discussed above, reflects a “liberal federal policy favoring arbitration agreements.” Gilmer, 500 U.S. at 35, 111 S.Ct. 1647. In the same year Gilmer was decided, the Sixth Circuit applied Gilmer in a case brought by a securities dealer under the same arbitration provisions, but involving claims under Title VII and a state discrimination statute. The court found that the reasoning of Gilmer was equally applicable to a Title VII claim when an individual had agreed to arbitration as a condition of that person’s employment. Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir.1991). The Supreme Court’s decision in Gilmer has evoked sharp differences of opinion as to its effect on Gardner-Denver. A divided panel of the Fourth Circuit held that, under the language of a collective bargaining agreement, both plaintiffs Title VII claim based on sex discrimination and her Americans with Disabilities Act claim were subject to the arbitration provisions of the collective bargaining agreement and could not be brought in federal court. Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.1996). The court relied on Gilmer and also emphasized a “Congressional favor towards arbitration,” referring to the following section of the Civil Rights Act of 1991, amending Title VII, and to similar language that appears in the Americans with Disabilities Act: “Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, factfinding, minitrials, and arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal law amended by this title [enacting section 1981a of this title and amending this section, sections 1988, 2000e, 2000e-l, 2000e-2, 2000e-4, 2000e-5, 2000e-16, 12111, and 12112 of this title, and section 626 of Title 29, Labor].” A House committee report, in referring to this language, stated: The Committee emphasizes, however, that the use of alternative dispute resolution mechanisms is intended to supplement, not supplant, the remedies provided by Title VII. Thus, for example, the Committee believes that any agreement to submit disputed issues to arbitration, whether in the context of a collective bargaining agreement or in an employment contract, does not preclude the affected person from seeking relief under the enforcement provisions of Title VII. This view is consistent with the Supreme Court’s interpretation of Title VII in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). The Committee does not intend this section to be used to preclude rights and remedies that would otherwise be available. H.R.Rep. No. 102-40(1), 102d Cong., 1st Sess. 97, reprinted in 1991 U.S.C.C.AN. 549, 635. In our circuit, the Fourth Circuit’s conclusion concerning the effect of Gilmer on Gardner-Denver in a collective bargaining agreement ease has been expressly rejected. In Penny v. United Parcel Service, 128 F.3d 408 (6th Cir.1997), the CBA, as in Austin, included provisions referring to non-discrimination against the handicapped employees and, specifically, “employees of a qualified disability under the Americans with Disabilities Act.” In rejecting the defendant’s claim that the federal court could not decide plaintiffs claim in view of the CBA’s provision for submission of claims to the grievance procedure and binding arbitration, the court pointed out that Gilmer did not overrule Gardner-Denver, but had distinguished it for the reasons stated by the Supreme Court in Gil-mer. After noting that “Austin has not inspired many followers,” referring to contrary decisions in the Second, Seventh, Eighth, Tenth, and Eleventh Circuits, the Sixth Circuit noted with approval the dissenting opinion in Austin which argued that, “although Gilmer permits an individual to waive his prerogative to pursue a statutory right in a judicial forum, that case does not alter Gardner-Denver’s holding that a labor union cannot make such a waiver prospectively on an individual’s behalf.” Id. at 413. (emphasis in original.) The Sixth Circuit then reached the following conclusion which, in this Court’s view, clearly is applicable to the Title VII claims in the present ease: We conclude that an employee whose only obligation to arbitrate is contained in a collective bargaining agreement retains the right to obtain a judicial determination of his rights under a statute such as the ADA. Id. at 414 The conflict among the circuits regarding the effect of Gilmore on Gardner-Denver and the virtually simultaneously enactment of the 1991 amendments to Title VII, specifically Section 118 of Title I of Public Law 102-166 (supra, p. 878, fn. 6) continues unabated. In Duffield v. Robertson Stephens and Co., 144 F.3d 1182 (9th Cir.1998), the plaintiff, a securities dealer, was required to agree to arbitration of all employment disputes under a registration agreement and Rule 347 of the New York Stock Exchange. The Ninth Circuit held, contrary to the Sixth Circuit’s decision in Willis, after a thorough review of the legislative history of § 118, that Congress intended § 118 to codify the Gardner-Denver approach and to preclude the enforceability of compulsory arbitration agreements with respect to Title Vil claims. One month later, in June, 1998, the Third Circuit decided that the same arbitration requirements imposed on a securities dealer were enforceable in a Title VII action. Seus v. John Nuveen & Co., Inc. 146 F.3d 175 (3rd Cir.1998). The court pointed out that, although Gilmer involved only ADEA claims, a number of courts have determined that the holding is equally applicable to Title VII proceedings, including the Sixth Circuit in Willis. With respect to § 118 of the Civil Rights Act of 1991, the Third Circuit expressly rejected the Ninth’s Circuit’s decision in Duffield and held that there is “nothing in the legislative history suggesting that this horatory provision was intended to codify, and thus freeze, any particular view of the case law.” (referring, of course, to Gardner-Denver). The court cited with approval the Austin case from the Fourth Circuit as well as Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 53 n. 4 (7th Cir.1995). The Eighth Circuit, in Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir.1997) has drawn a sharp distinction between arbitration provisions in a collective bargaining agreement (as in Gardner-Denver) and individual employment agreements (as in Gil-mer ). The court noted the Supreme Court’s concerns in Gardner-Denver that under a collective bargaining agreement the arbitration requirement is obtained by a union that represents the majority’s interest rather than an individual’s interest, which creates “tension between collective representation and individual statutory rights” and that labor arbitrators are generally only authorized under a CBA to resolve contractual, and not statutory, claims. In contrast, the individual employment agreement in Patterson “[did] not limit the arbitrator solely to interpretation of the contract.” Id. at 837. The court concluded that “the CBA cases, therefore, ‘provide no basis for refusing to enforce [an individual consensual] agreement to arbitrate,’” paraphrasing language in Gilmer. The court then agreed “with those post-Gil-mer decisions which have ruled that Title VII claims, like ADEA claims, are subject to individual consensual agreements to arbitrate,” citing cases from the Fourth, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits. The Court believes that Gardner-Denver is still the law; that the decision of the Sixth Circuit in Penny correctly applied Gardner-Denver; that Congress, in the 1991 amendments to Title VII did not intend to abrogate Gardner-Denver; and that plaintiffs clams under title VII are properly before this Court. 2. O.R.C. § 4112.02(A) Claim Plaintiffs supplemental claim of discrimination under O.R.C. § 4112.02(A) is also properly before this Court. The reasoning of Gardner-Denver and Barrentine has been followed by the Ohio courts. In Youghiogheny and Ohio Coal Co. v. Oszust, 23 Ohio St.3d 39, 41, 491 N.E.2d 298 (1986), the Ohio Supreme Court said: A private arbitrator’s determination upholding an employee’s discharge for “just cause” according to the terms of the applicable collective bargaining agreement does not preclude the Ohio Bureau of Employment Services from concluding that the employee was not “discharged for just cause in connection with his work” within the meaning of R.C. § 4141.29(D)(2)(a). Just as the United States Supreme Court has held that an employee’s rights under Title VII of the Civil Rights Act of 1964 were not foreclosed by submission of a discrimination claim to arbitration under the applicable collective bargaining agreement, Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147, we conclude that by filing a claim for unemployment compensation, Oszust was “asserting a statutory right independent of the arbitration process.” Id. at 54, 94 S.Ct. 1011. See, also, Barrentine v. Arkansas-Best Freight Sys. Inc. (1981), 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641; McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984). In a more recent case, and one which is more factually similar to the present case, an employee was discharged for not complying with the terms of a CBA governing a medical leave of absence. His union instituted the grievance procedures which culminated in a decision of the arbitrator finding that the discharge was proper under the terms of the CBA. The employee then brought an action in the Common Pleas Court alleging that he was discriminated against on the basis of his handicap in violation of O.R.C. § 4112.02 and was discharged in retaliation for filing his workers’ compensation claim in violation of O.R.C, § 4123.90. In reversing the trial court’s granting of defendant’s motion for summary judgment, the Court of Appeals held that plaintiff was not precluded from asserting his claims by the arbitrator’s denial of his grievance under the terms of the CBA. Gardner v. Kelsey Hayes Co., 1995 WL 557004 (Ohio App. 5 Dist.1995). The court followed Gardner-Denver, Barrentine, and Oszust in reaching its conclusion: Pursuant to these authorities, we find that appellant is not precluded from asserting his statutory wrongful discharge claims by the arbitrator’s denial of his grievance under the terms of the collective bargaining agreement. In filing his complaint in the trial court, appellant is asserting independent statutory rights separate and apart from his contractual rights under the collective bargaining agreement. Although the arbitrator is empowered to determine the contractual rights of the parties pursuant to the terms of said agreement, he is not empowered to determine appellant’s rights under O.R.C. § 4112.02 or § 4123.90. Further, the fact finding process of and potential remedies available in an arbitration proceeding are different from and more limited than those available to the appellant in a civil trial. Id. at 3. 3. FMLA Claims In the context of a private employment agreement, it is not surprising to find decisions following Gilmer holding that FMLA claims covered by an arbitration agreement must be submitted to arbitration and not brought in court. In Satarino v. A.G. Edwards and Sons, Inc., 941 F.Supp. 609 (N.D.Texas 1996), a district court, in dismissing plaintiffs ADA and FMLA claims, said: This court predicts that the Fifth Circuit will follow the reasoning of courts that hold that parties who have contracted to do so can be compelled to arbitrate ADA claims, and that it will also uphold clauses that mandate arbitration of FMLA claims. Id. at 612 The court, held that: Although the FMLA, unlike the ADA, contains no explicit provision that encourages arbitration, see 42 U.S.C. § 12212, the section of the FMLA that confers a private right of action, 29 U.S.C. § 2617(a)(2), contains nothing to suggest that agreements to arbitrate are unenforceable and Satari-no has not pointed the court to legislative history to support such a conclusion, or to an inherent conflict between the FMLA and arbitration. The court therefore holds that contractual agreements to arbitrate FMLA claims are enforceable. Id. at 613 It should be noted that Satarino did not involve a collective bargaining agreement. The arbitration provision was contained in individual agreements and in Rule 37 of the New York Stock Exchange. In O’Neil v. Hilton Head Hosp., 115 F.3d 272 (4th Cir.1997), the Fourth Circuit reversed a district court’s denial of a motion filed under the Federal Arbitration Act to stay a FMLA action. Like Satarino, the agreement to submit “any and all complaints for any and all events that arise out of employment or termination of employment” was a condition of plaintiffs employment and not a part of any collective bargaining agreement. The Fourth Circuit, citing Satarino, held that “nothing in the Family and Medical Leave act suggests that Congress wishes to exempt disputes arising under it from the coverage of the FAA.” Id. at 274. The Fourth Circuit, in a case involving a collective bargaining agreement, distinguished Gilmer and its previous decisions in Austin and O’Neil. In Brown v. Trans World Airlines, 127 F.3d 337 (4th Cir.1997), an action brought under both Title VII and the FMLA, the court held that, “the question of whether a collective bargaining agreement submits statutory disputes to arbitration is a matter of contract law, and a ‘party cannot be required to submit to arbitration any dispute which he has not agreed so to submit’ because ‘arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration..'" Id. at 340, citations omitted. Although the collective bargaining agreement in question included a prohibition against discrimination “on account of race, color, creed, religion, sex (sexual harassment), age, handicap, national origin or veteran status,” the court focused on the provision for arbitration: But while the agreement provides for arbitration of “disputes between the Union, employee, and the Company growing out of the interpretation or application of any of the terms of this Agreement,” the agreement does not purport to submit any noncontract-based dispute or any statutory dispute to arbitration. In this regard, the language in the agreement before us is significantly narrower than the language construed in Gilmer, O’Neil, and Austin. Id. at 341 The Fourth Circuit made it clear that it was not retreating from the position it had taken in Austin: Nothing in our holding precludes the parties from agreeing to arbitrate all disputes arising out of the employment relationship by which they would be agreeing to arbitrate not only contract-based disputes but also disputes based on statutory and common law. To do so, they would not need to mention in their agreement that a statute was the source of a dispute committed to arbitration as long as it were made clear that their agreement is sufficiently broad to include the arbitration of such disputes. While it is true that the collective bargaining agreement in this case prohibits conduct similar to that prohibited by Title VII and by the Family and Medical Leave Act, none of the substantive provisions in the agreement reaches beyond the agreement to cover disputes arising under these laws. Thus, in interpreting the contract, there is no indication that the arbitrator would be bound to follow their interpretations. The defendants nevertheless argue that the anti-discrimination provisions in this case incorporate, sub silentio, an obligation to adhere to statutory anti-discrimination provisions. Although the anti-discrimination language of Brown’s collective bargaining agreement prohibits many of'the types of discrimination covered by existing laws, it cannot be said to be congruent with them. For example, the contractual provision prohibits discrimination, but it does not prohibit retaliation because of the enforcement of the antidiscrimination provision. Yet retaliation is the basis for a separate cause of action under Title VII and one that Brown seeks to vindicate in this case. Id. at 341-342. Although the Sixth Circuit has not yet decided the question, this Court is of the opinion that the plaintiff in this case cannot be compelled to- submit her FMLA claims to arbitration under the CBA, and that her FMLA claims are properly before the Court for the following reasons. First, and of primary importance, the arbitration requirement is found in a collective bargaining agreement, and the concerns expressed by the Court in Gardner-Denver and followed by the Sixth Circuit in Penny are equally applicable here. Furthermore, the enforcement scheme of the FMLA “is modeled on the enforcement scheme of the FLSA, which has been in effect since 1938.” Senate Report, p. 35. Many of the same considerations that led the Supreme Court to its conclusion in Barrentine regarding the right of an employee to pursue a FLSA claim in federal court would also apply to the right of an employee to pursue a claim under the sister statute, the FMLA, in federal court. Among the reasons given by the Supreme Court in Barrentine for holding that claims under the FLSA are not required to be submitted to binding arbitration under a collective bargaining agreement, following the reasoning of Gardner-Denver, was that a union might, without breaching its duty of fair representation, decide not to support the claim vigorously in arbitration. Also, because an arbitrator is required to effectuate the intent of the parties, rather than to enforce the statute, he may issue a ruling that is inimical to the public policies underlying the FLSA, thus depriving an employee of protected statutory rights. Furthermore, arbitrators are very often powerless to grant an aggrieved employee as broad a range of relief as afforded by the statute. Second, the CBA in this case does not purport to require arbitration of any and all grievances arising from plaintiffs employment. Under the CBA, a grievance is defined as “a disagreement involving a work situation in which a teacher, group of teachers or the MVEA believe there has been a violation, misinterpretation or misapplication of: A. The written Master Contract entered into between the Board and the WVEA; or B. Rules, regulations, and procedures of the administration and the Board.” CBA § 202(2). It does not include any claim arising under federal law, including claims arising under the FMLA. Third, the CBA “supersedes and prevails over all statutes of the State of Ohio (except as specifically set forth in § 4117.10(A) of the Ohio Revised Code), and all policies, rules and regulations of the Board.” CBA, § 105(1). Statutes of the United States are obviously excluded from this “supremacy” provision of the CBA. Fourth, although the CBA provides that “the Board recognizes all personal rights and freedoms granted to teachers by the Constitution and the laws of the State of Ohio and the United States, and will abide by all laws that pertain to the teachers it employs (CBA § 401), such a provision does not, in the opinion of this Court, constitute a clear and unambiguous agreement to submit a grievance concerning conduct of the Board allegedly in violation of the FMLA to binding arbitration.” The Board was contractually bound to follow the provisions of the CBA, including the provisions dealing with parental leave (CBA § 705), which allegedly conflict with the provisions of the FMLA. Failure of the Board to follow the provisions of § 705 of the CBA would itself constitute a clear violation of the CBA. The CBA contemplates that, in the case of a conflict between a provision of the CBA and any statute, “that provision shall automatically be deemed invalid.” CBA § 105(2). It is apparent, therefore, that the CBA contemplated a legal action, as the present one, which challenges a provision of the CBA as being contrary to law, in this case contrary to the FMLA. This Court agrees with the court in McGinnis v. Wonder Chem. Co., 1995 WL 756590 (E.D.Pa.1995), which held that plaintiffs claims under the ADA and FMLA were not preempted by an arbitration provision in the collective bargaining agreement. Decisions in this area have branched in two directions: one following the reasoning of Gilmer v. Interstate-Johnson Lane Corp., 500 U.S. 20 [55 FEP Cases 1116] (1991), which generally involves employment contracts between individual employees and their employers and the Federal Arbitration Act; and one adhering to the opinion in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 [7 FEP Cases 81] (1974), which is applied to most cases involving collective bargaining agreements and not involving the Federal Arbitration Act. The facts of this case place it squarely in line with Gardner-Denver and its progeny: there is a collective bargaining agreement (“CBA”) with a general arbitration provision, there is no incorporation of or reference to the Federal Arbitration Act, and plaintiff has brought this claim in an effort to secure his statutory rights, and not to settle a dispute governed solely by the CBA. “In holding that collective bargaining agreements do not require employees to submit statutory claims to grievance procedure, the Court made clear that contractual disputes arising out of the collective bargaining agreement itself are distinct and separate from an employee’s statutory rights.” Randolph v. Cooper Indus., 879 F.Supp. 518 [68 FEP Cases 1465] (W.D.Pa.1994). Thus, defendant’s argument for preclusion of plaintiffs statutory claims by the CBA is without merit. Id. at fn. 1, p. 873. 4. § 1983 Claims Finally, on the authority of McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), the Court concludes that plaintiffs § 1983 claim is also properly before the Court and is not barred by the collective bargaining agreement. It does not follow, however, that plaintiff is able to assert a § 1983 claim in this case based upon a violation of Title VII or the FMLA, a question that is addressed infra. The court turns, then, to the merits of defendants’ motion with respect to plaintiffs claims under Title VII, under the FMLA, and under § 1983, as well as her supplemental clams under O.R.C. § 4112.02(A) and for intentional inflection of emotional distress under Ohio common law. B. TITLE VII AND O.R.C. § 4112.02(A)— ALLEGED DISCRIMINATION Title VII and section 4112.02(A) of the Ohio Revised Code make it unlawful for an employer to discriminate against an individual on the basis of sex. Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l); Ohio Rev. Code § 4112.02(A). Under both laws, discrimination on the basis of sex includes discrimination on the basis of pregnancy. Under the Pregnancy Discrimination Act (PDA), 42 U.S.C. § 2000e(k), enacted by Congress in 1978 as an amendment to Title VII, the terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions. O.R.C. § 4112.01(B) provides that for the purposes of § 4112.02(A) discrimination, the terms “because of sex” and “on the basis of sex”, include, but are not limited to, because of or on the basis of pregnancy, any illness arising out of and occurring during the course of a pregnancy, childbirth, or related conditions. It should be noted, however, that with respect to the plaintiffs pregnancy sick leave — as distinguished from her parental leave — there is no claim that the CBA or defendants’ practices regarding a sick leave based on pregnancy violated the PDA or O.R.C. § 4112.02(A). Instead, the focus of plaintiffs Title VII and O.R.C. § 4112.02(A) claims of sex discrimination is the conduct of the defendants, not in granting her pregnancy sick leave, but in refusing her request during her subsequent parental leave to return to work on April 26, 1994. It is plaintiffs position that this refusal was discriminatory because “it subjected only pregnant women teachers to the requirement that they obtain approval from the superintendent before returning to work.” (Plaintiff’s memorandum contra motion for summary judgment, p. 9). It is undisputed that defendants, in refusing to permit plaintiff to return to work during the remainder of the school year, were acting pursuant to the following provision in the CBA governing parental leave: If the first day of the leave is prior to January 1, the leave granted shall be for the remainder of the school year or at a time otherwise mutually agreed to. If the first day of the leave is after January 1 in any school year, the leave shall be for the remainder of the school year or at a time otherwise mutually agreed to and at the employees option provided the Board is notified prior to July 10 of that year, it shall be for all of the succeeding school year. CBA § 705. Defendants contend that the Court need not consider plaintiffs claim under Title VII because “the ease law is clear that Title VII does not prohibit discrimination on the basis of childbearing activities or parental leave,” citing Wallace v. Pyro Mining Co., 789 F.Supp. 867 (W.D.Ky.1990), aff’d. 951 F.2d 351 (6th Cir.1991) and Barnes v. Hewlett-Packard Co., 846 F.Supp. 442 (D.Md.1994). In Wallace, plaintiff sought leave to breast feed, her baby, which leave was refused by the employer. Plaintiff claimed this constituted discrimination on the basis of sex. The court held that plaintiffs claim did not come within the ambit of the PDA because plaintiff could not show that she had a “related medical condition” as required by the Act. In Barnes, plaintiff was given parental leave following the birth of a child in accordance with the employer’s policy. She claimed that when she returned to work she was met with sex discrimination because she had availed herself of parental leave. The Court held that her parental leave did not come within the coverage of the PDA and because parental leave was not protected by Title VII it could not be used as a basis for the alleged discrimination. Wallace is readily distinguishable from the present ease. While an employer (pre FMLA) did not have to grant parental leave to a female employee to care for a newborn child and could treat the employee in the same manner as any other employee who did not have a disability and is not covered by the PDA, as Wallace so held, the PDA did not affect or narrow Title VII’s prohibition against an employment practice that discriminates against any employee because of that person s race, color, religion, sex or national origin. The PDA was enacted by Congress as a result of Supreme Court decisions, particularly Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), rehearing denied, 429 U.S. 1079, 97 S.Ct. 825, 50 L.Ed.2d 800 (1976), and to make it clear that sex discrimination under Title VII included discrimination based on pregnancy, child birth or related medical conditions. In short, the PDA obviously did not in any way restrict the prohibition against gender based discrimination in Title VII; it clarified that protection by expressly including discrimination based on pregnancy, child birth or related medical conditions. This is illustrated by the EEOC Guidelines Questions and Answers on the PDA, quoted in the Barnes case as follows: Q. Must an employer grant leave to a female employee for childcare purposes after she is medically able to return to work following leave necessitated by pregnancy, childbirth or related medical conditions? A. While leave for childcare purposes is not covered by the Pregnancy Discrimination Act, ordinary Title VII principles would require that leave for childcare purposes be granted on the same basis as leave which is granted to employees for other non-medical reasons. For example, if an employer allows its employees to take leave without pay or accrued annual leave for travel or education which is not job related, the same type of leave must be granted to those who wish to remain on leave for infant care, even though they are medically able to return to work. Barnes, 846 F.Supp. at 444. As a result of the PDA, there are now, as one court has referred to it, two prongs of sex discrimination, “the gender and pregnancy prongs of ... Title VII” Fejes v. Gilpin Ventures, Inc., 960 F.Supp. 1487 (D.Col.1997) and, in an appropriate case, both prongs must be analyzed. In the present case, the court is not concerned with the second prong. The plaintiff has made no claim of discrimination based on her pregnancy sick leave or the PDA. The claim is that the employer, in providing for parental leave for both male and female employees has imposed restrictions (requiring approval before returning to work) that are not applied to the other types of leave set forth in the CBA, and that this discriminates against female employees. This is clearly a claim of gender discrimination — the gender prong of sex discrimination — and is within the coverage of Title VII. To the extent that Barnes can be read to the contrary, the Court respectfully disagrees. The Court turns, then, to a consideration of plaintiff’s claim. Plaintiff contends that requiring employees who take parental leave to remain on leave until the next school year, unless an earlier return date is mutually agreed upon (requiring, presumably, the Superintendent’s agreement), discriminates against women because (1) such a requirement is not imposed with reference to leaves based on disability and (2) “a woman is much more likely to take parental leave than a man.” (Plaintiff’s memorandum contra motion for summary judgment, p. 13.) The plaintiff sets forth her Title VII discrimination claim as both a disparate treatment claim and an adverse impact claim. A violation of Title VII can occur either when an employer treats a female employee less favorably than a similarly-situated male employee, or when an employer institutes a facially neutral policy that disproportionately affects female employees. “Disparate treatment ... is the most easily understood type of discrimination [and involves an] employer simply treating] some people less favorably than others because of their race, color, religion, sex, or national origin.” Int'l. Bhd. of Teamsters v. U.S., 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Adverse impact involves the existence of an employment practice which, although neutral on its face, has the effect of disproportionately affecting persons in a legally protected group. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). 1. Disparate Treatment The fact that the CBA required that parental leave be extended until the following school year, absent approval for an earlier return, whereas approval for return from disability leave is not required, does not establish a prima facie case of discrimination. Plaintiff has not offered any evidence that defendants treated plaintiff differently from male employees who also were subject to the requirements imposed for parental leave. Plaintiffs comparison with male employees who took disability leave and did not require approval before returning to work is meaningless. The provisions for disability leave and parental leave are different, and plaintiff, to show disparate treatment discrimination, must show that she was treated differently than males under the provisions dealing with parental leave. There is no evidence that this occurred. Plaintiff, in short, has not presented any evidence of disparate treatment based on her gender. 2. Disparate Impact Plaintiff’s contention that the facially neutral requirement in question has a disparate impact on women because “a woman is much more likely to take parental leave than a man” presents a somewhat more difficult question, not because of this conclusory statement of counsel but because of the undisputed “statistical evidence.” Defendant Rhoades estimated that seven or eight female employees other than plaintiff had taken parental leave (Rhoades depo., p. 21) and that no male teachers had ever taken parental leave. Id. at 20. Defendants, conceding that plaintiff was one of eight female employees who took parental leave and that no male employee has taken parental leave, contend that “it is not Defendants’ fault that no males have decided to request parental leave ...” (Defendants’ reply memorandum, p. 3.) In order to establish a prima facie ease of discrimination by showing disparate impact, the plaintiff, after identifying the employment practice being used by the employer, must then show an adverse effect caused by the employment practice by offering statistical evidence of a kind and degree sufficient to show that the practice in question has caused prohibited discrimination. Abbott v. Fed. Forge, Inc., 912 F.2d 867, 872 (6th Cir.1990). As the Sixth Circuit said in Abbott, the Supreme Court has rejected any mathematical formula in analyzing statistics, and “Courts are left to decide on a case-by-case basis whether statistics that purport to show disparate impact are in fact sufficient to the task...” Id. at 873. In the present ease, the only relevant statistical evidence offered by plaintiff is the fact that in one elementary school in the Mt. Vernon school district eight female teachers applied for parental leave and no male teachers applied for parental leave. This statistic, standing alone, has virtually no probative value. First, with respect to the composition of the teaching staff at Dan Emmett Elementary School, there are no statistics showing the gender composition of that staff. If, for example, 90% of the teachers at this school are female, the fact that most, if not all, of the teachers who applied for leave were female would hardly support any inference of discrimination due to disparate impact. Second, the court questions the use of one school in the entire school district as a basis for the statistical foundation needed in a disparate impact case. The challenged employment practice is contained in the CBA between the Mt. Vernon Board of Education and the Mt. Vernon Education Association. There are presumably a number of schools in the Mt. Vernon school district, and the challenged employment practice encompasses all teachers at all schools in the district. The relevant group for statistical purposes, in the view of the Court, would be all female and all male teachers in the school district who took parental leaves and who requested a return to work but were denied that request because of the challenged requirement that approval first be obtained. “The statistical evidence may be found lacking if there is a small amount or incomplete data...” Minority Employees of the Tennessee Dep’t. of Employment Sec., Inc. v. State of Tennessee, Dep’t. of Employment Sec., 1989 WL 74523, *7 (6th Cir.1989). Plaintiff has failed to present sufficient statistical evidence to create a prima facie ease of discrimination based on disparate impact. Because plaintiff has failed to establish a prima facie case of sex discrimination under either a disparate treatment or disparate impact analysis as is her burden under both federal and state law, the court will grant defendant’s motion for summary judgment on plaintiffs claim of sex discrimination under Title VII and O.R.C. § 4112.02(A). C. TITLE VII — ALLEGED RETALIATION Plaintiff contends that defendants engaged in retaliatory conduct after she filed a Title VII charge of discriminatory conduct with the Ohio Civil Rights Commission on March 30,1994, asserting that she had been subjected to disparate treatment since taking pregnancy leave on January 10, 1994. (Complaint, ¶ 11.) It is alleged that since filing the charge of discrimination she has been unfairly scrutinized on a continuing basis, has received inaccurate job performance evaluations, has been threatened with termination, and has been subjected to hostile and demeaning comments. (Complaint, ¶¶ 11 & 12.) Defendants point out that virtually all of the alleged conduct upon which plaintiff bases her claim of retaliation for filing a Title VII charge with the Ohio Civil Rights Commission on March 30, 1994 occurred prior to that date and, therefore, obviously could not be the basis for plaintiff’s retaliation claim. It is not disputed that defendants performed two observations of plaintiff in November and December 1993, which led to the evaluation letter of March 2, 1994 which, in turn, recommended that plaintiff be placed on a one year probationary contract. (App.Ex.5.) Plaintiff, in response, argues that some of the alleged conduct upon which plaintiff bases her retaliation claim took place after she filed her Title VII charge with the OCRC, i.e. a second performance evaluation on April 14,1994, a refusal to accept plaintiffs “rebuttal” of the March 2, 1994 evaluation letter, the refusal to permit plaintiff to return to work on April 26, 1994, and the placing of plaintiff on a one year probationary contract on June 6, 1994. (Plaintiffs memorandum contra motion for summary judgment, pp. 7-8.) Plaintiff also argues that defendants’ alleged discriminatory conduct prior to the filing of the OCRC charge should be considered because she engaged in protective activity when she requested parental leave on January 28, 1994 and asserted her rights under the FMLA. The problem with this argument, however, is that (1) plaintiffs complaint is specifically based on a Title VII claim of retaliation following the filing of her OCRC charge, and (2) plaintiffs complaint does not contain a cause of action based on a claim of retaliation for protected activity under the FMLA. In order to establish a prima facie claim of Title VII retaliation, the plaintiff must allege and prove that she: (1) engaged in an protected activity; (2) that this exercise of his [or her] protected rights was known to defendant; (3) that defendant thereafter took an employment action adverse to the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.1990), cert. denied, 498 U.S. 984, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990). The first and second elements are not disputed. Plaintiffs filing of her complaint with the OCRC was protected activity and was known to defendants. As to the third prong, the plaintiff contends that the defendants did take adverse employment action; specifically, the plaintiff received a negative evaluation after she filed her OCRC complaint; her return date was delayed until the next calendar school year; and she received a one-year probationary contract for that year. Construing the evidence in the light most favorable to plaintiff as the non-moving party, this Court finds that, for purposes of defendants’ motion for summary judgment, that defendants’ actions constitute adverse employment action. With respect to the fourth element, it is highly questionable that plaintiffs evidence is sufficient to show any causal connection between the filing of the OCRC charge and the alleged retaliatory events following the filing of that charge. Although plaintiff received another unfavorable evaluation in April, 1994, she had received an unfavorable evaluation prior to the filing of the OCRC charge; the refusal of defendants to agree with plaintiffs “rebuttal” of the evaluation can hardly be deemed a retaliatory act; the refusal to permit plaintiff to return to work on April 26, 1994 was clearly based on the CBA; and the placing of plaintiff on a one year probationary contract was simply the result of a recommendation made prior to the filing of the OCRC charge. Even if plaintiff has established a prima facie ease of retaliation—and the Court does not believe she has—the inquiry would not end there. Once a plaintiff has established a prima facie case, the employer must then articulate some legitimate reason for its actions. McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101