Allen v. Totes/Isotoner Corp.

• Decision Date: 27 August 2009
• Docket Number: No. 2008-0845.,2008-0845.
• Parties: ALLEN, Appellant, v. TOTES/ISOTONER CORPORATION, Appellee.
• Court: Ohio Supreme Court

915 N.E.2d 622

123 Ohio St.3d 216

2009-Ohio-4231

ALLEN, Appellant, v. TOTES/ISOTONER CORPORATION, Appellee.

No. 2008-0845.

Supreme Court of Ohio.

Submitted March 11, 2009.

Decided August 27, 2009.

Repper, Pagan, Cook, Ltd. and John H. Forg III, Cincinnati, for appellant.

Taft, Stettinius & Hollister, Timothy Reilly, and Daniel J. Hoying, Cincinnati, for appellee.

PER CURIAM.

{¶ 1} This case arises from a grant of summary judgment in favor of totes/Isotoner Corporation, LaNisa Allen's employer, on a discrimination complaint arising out of the Ohio Fair Employment Practices Act, R.C. Chapter 4112, as amended by the Pregnancy Discrimination Act, 138 Ohio Laws, Part I, 1430, 1431-1432. We originally accepted Allen's discretionary appeal, which sought review of the issue whether Ohio law prohibits an employer from discriminating against a female employee because of or on the basis of lactation. For the reasons stated below, we find that summary judgment was properly granted for appellee, totes/Isotoner Corporation ("Isotoner"), against appellant, LaNisa Allen, on her claims for wrongful termination. Accordingly, we affirm the judgment of the court of appeals.

{¶ 2} In its opinion affirming the grant of summary judgment to the employer, the Twelfth District Court of Appeals ruled that Allen had failed to establish a prima facie case of sex discrimination on the basis of pregnancy, and it concluded that Allen's termination does not violate Ohio public policy against discrimination on the basis of pregnancy. The appellate court ruled that Allen "was simply and plainly terminated as an employee at will for taking an unauthorized, extra break." Allen v. totes/Isotoner (Apr. 7, 2008), Butler App. No. CA2007-08-196, ¶ 3.

{¶ 3} Allen admitted in her deposition that for approximately two weeks, she had taken breaks without her employer's knowledge or authorization to do so and that her supervisor had told her that she was being terminated for her failure to "follow directions."

{¶ 4} As a general matter, if a plaintiff establishes a prima facie case of disparate-treatment employment discrimination under R.C. Chapter 4112, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its treatment of the plaintiff. See, e.g., Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 197-198, 20 O.O.3d 200, 421 N.E.2d 128; St. Mary's Honor Ctr. v. Hicks (1993), 509 U.S. 502, 506-507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (analyzing the federal employment-discrimination statute). The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the plaintiff based upon an impermissible category remains on the plaintiff. Id. at 507, 113 S.Ct. 2742, 125 L.Ed.2d 407.

{¶ 5} Legitimate, nondiscriminatory reasons in Ohio law include insubordination. Hood v. Diamond Prods., Inc. (1996), 74 Ohio St.3d 298, 302, 658 N.E.2d 738. If the employer carries its burden of articulating a legitimate, nondiscriminatory reason for its employment decision, the plaintiff must prove that the employer's stated nondiscriminatory reasons were a pretext for impermissible discrimination. Id.; see also St. Mary's Honor Ctr., 509 U.S. at 519, 113 S.Ct. 2742, 125 L.Ed.2d 407. If an employment-discrimination plaintiff fails to establish a triable factual issue on an essential element of her case, summary judgment for the employer is appropriate. See, e.g., Simpson v. Des Moines Water Works (C.A.8, 2005), 425 F.3d 538, 542.

{¶ 6} In this case, the evidence in the record demonstrates that Allen took unauthorized breaks from her workstation, and Isotoner discharged her for doing so. Thus, the record as it was developed in the trial court fails to provide a basis from which a jury could conclude that Isotoner's articulated legitimate, nondiscriminatory reason for Allen's termination—failure to follow directions—was a pretext for discrimination based on Allen's pregnancy or a condition related to her pregnancy. This determination defeats Allen's sex-discrimination claim under R.C. 4112.02 as a matter of law, and, accordingly, the trial court properly granted summary judgment to Isotoner. Consequently, this court does not reach the issue whether alleged discrimination due to lactation is included within the scope of Ohio's employment-discrimination statute, R.C. 4112.02, as sex discrimination under R.C. 4112.01(B).

{¶ 7} Because summary judgment was properly entered against Allen, we affirm the judgment of the court of appeals.

Judgment affirmed.

LUNDBERG STRATTON, O'DONNELL, and CUPP, JJ., concur.

MOYER, C.J., and O'CONNOR, J., concur in judgment only.

PFEIFER, J., dissents.

LANZINGER, J., would dismiss the appeal as having been improvidently accepted.

O'DONNELL, J., concurring.

{¶ 8} I concur in the judgment affirming the summary judgment in totes/Isotoner's favor, because totes/Isotoner discharged LaNisa Allen for taking an unauthorized break from her scheduled employment. That fact is undisputed in the record before us, and Allen failed to carry her burden of proving either that totes/Isotoner had a discriminatory motive or that its reason for discharging her was a pretext for discrimination. Consequently — and necessarily, in accordance with long-standing prudential considerations widely utilized by the courts — I would not reach the issue whether adverse differential treatment because of postpregnancy lactation falls within actionable discrimination as defined by the General Assembly in R.C. Chapter 4112.

{¶ 9} It is the long-standing practice of courts to decide only issues presented by the facts and to refrain from deciding issues that the facts do not place directly at issue. Because of the relevant and determinative facts of this case, the resolution of the dispute of the parties before us does not turn on whether R.C. 4112.02 encompasses alleged discrimination due to lactation. Because the court need not reach this issue, any opinion expressed on the issue would be merely advisory and not in accordance with the long-standing practice of courts to decline to render advisory opinions.

{¶ 10} It is well-settled law that this court will not issue advisory opinions. State ex rel. White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18, citing State ex rel Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238, 242, 736 N.E.2d 893; Egan v. Natl. Distillers & Chem. Corp. (1986), 25 Ohio St.3d 176, 25 OBR 243, 495 N.E.2d 904, syllabus. "It has been long and well established that it is the duty of every judicial tribunal to decide actual controversies between parties legitimately affected by specific facts and to render judgments which can be carried into effect." Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371. Because the court need not reach the issue of whether discrimination on the basis of lactation is prohibited by R.C. 4112.02, it should not do so. See PDK Laboratories, Inc. v. United States Drug Enforcement Admin. (C.A.D.C.2004), 362 F.3d 786, 799 (Roberts, J., concurring in part and concurring in the judgment, "if it is not necessary to decide more, it is necessary not to decide more").

LUNDBERG STRATTON and CUPP, JJ., concur in the foregoing opinion.

MOYER, C.J., concurring in judgment only.

{¶ 11} I agree that summary judgment was properly entered against the appellant, LaNisa Allen, and thus I concur in the judgment. Because I also concur in Justice O'Connor's separate discussion of the merits, I join her opinion, not the per curiam opinion.

O'CONNOR, J., concurring in judgment only.

{¶ 12} LaNisa Allen's complaint alleged that Isotoner discriminated against her on the basis of pregnancy, "a condition of gender," in violation of Ohio's Fair Employment Practices Act, R.C. Chapter 4112 ("FEPA"), as amended by Ohio's Pregnancy Discrimination Act ("PDA"), 138 Ohio Laws, Part I, 1430, 1431-1432; that her termination was against public policy; that her "medical condition, the act of lactating, constitutes a `handicap'" for purposes of the FEPA; and that she had been discriminated against on the basis of her handicap under the Americans with Disabilities Act ("ADA").

{¶ 13} We asserted discretionary jurisdiction to review three propositions of law that arise from the claims in this case, Allen v. totes/Isotoner Corp., 119 Ohio St.3d 1443, 2008-Ohio-4487, 893 N.E.2d 515, including the assertion that "lactation is a physical condition associated with pregnancy and childbirth, hence the FEPA, as amended by the Ohio PDA, prohibits discrimination against females because they are lactating."

{¶ 14} I agree that appellee Allen failed to develop a record from which a jury could find in her favor. But because the trial and appellate courts erroneously applied inapposite federal precedent in their analysis of Allen's claims, I believe that this court should reach the merits to clarify the law. I therefore concur in judgment only. I write separately to set forth why I would hold that lactation falls within the scope of R.C. 4112.01(B) and that the statute prohibits employment discrimination against lactating women. R.C. 4112.02. In doing so, I am fully aware of the assertion that my opinion is advisory. I disagree. The lead opinion's failure to address the legal framework in which this case arises is disappointing, and it is even more troubling that we fail to address the scope of Ohio law under the guise that reaching the merits would result in an advisory opinion.

{¶ 15} The bald assertion that any opinion analyzing Allen's claim would be advisory is patently unpersuasive. Indeed, the cases cited by the concurring opinion, essentially, are ones in which we found an issue to be moot on appeal and therefore refused to provide advisory opinions. The cases cited are wholly distinguishable from this appeal, however. See State ex rel. White v....