Birch v. Cuyahoga Cty. Probate Court

• Decision Date: 21 November 2007
• Docket Number: No. 88854.,88854.
• Citation: 173 Ohio App.3d 696,2007 Ohio 6189,880 N.E.2d 132
• Parties: BIRCH, Appellant, v. CUYAHOGA COUNTY PROBATE COURT et al., Appellees.
• Court: Ohio Court of Appeals

880 N.E.2d 132

173 Ohio App.3d 696

2007-Ohio-6189

BIRCH, Appellant, v. CUYAHOGA COUNTY PROBATE COURT et al., Appellees.

No. 88854.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided November 21, 2007.

Caryn Groedel & Associates Co., LPA, Caryn M. Groedel, Beachwood, Candace L. Brown, and Jennifer L. Speck, Beachwood; and Thomas K. Mast, for appellant.

Littler Mendelson, P.C., Robert M. Wolff, and James P. Smith, Cleveland, for appellee Cuyahoga County Probate Court.

Montgomery, Rennie & Jonson and Linda L. Woeber, for appellee Judge John Donnelly.

PER CURIAM.

{¶ 1} Plaintiff-appellant, Wanda Birch, appeals the judgment of the Cuyahoga County Court of Common Pleas that granted summary judgment to defendants-appellees, the Cuyahoga County Probate Court and Judge John Donnelly. We affirm in part and reverse in part.

{¶ 2} Judge Donnelly has been the presiding judge of the probate court since 1991. In that capacity, he is responsible for the appointment and supervision of magistrates. The chief magistrate/court administrator, John Polito, provides direct supervision to the magistrates. The probate court is divided into several departments based on court function: the "front office" handles contested cases that would otherwise be heard by a probate judge, as well as the psychiatric, guardianship, adoptions accounts, and release-of-assets departments. Magistrates are appointed to serve in a specific department of the probate court but may, at times, provide backup to other departments.

{¶ 3} Appellant was hired as a magistrate in 1993 at a starting salary of $35,000. She has worked in the release-of-assets department throughout her tenure, but has also presided over adoption and name-change matters as assigned and a limited number of front-office cases. In 1998, one of appellant's colleagues came into possession of the results of a wage study of Cuyahoga County magistrates. The documentation indicated that all female probate court magistrates were paid lower salaries than all male magistrates and that the highest paid female magistrate earned less than her lowest paid male counterpart. Appellant, whose yearly salary was then $39,000, was the lowest paid of all magistrates employed by the probate court.

{¶ 4} After learning of the apparent salary disparities, appellant and three of her female colleagues met with Judge Donnelly and Magistrate Polito to request an explanation. Heated words were exchanged during the meeting, although witnesses disagree about precisely what was said and the context in which certain comments were made. Some wage and position changes occurred in the years following the meeting, but appellant remained the lowest paid magistrate.

{¶ 5} On July 12, 2001, appellant filed a complaint against appellees in the Federal District Court for the Northern District of Ohio, Eastern Division, alleging violations of the Equal Pay Act, 29 U.S.C. 206(d)(1) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-2a, premised upon wage discrimination. Appellant alleged corresponding violations of the Ohio Civil Rights Act, R.C. 4112.02. In addition, appellant asserted claims for (1) retaliation, under 42 U.S.C. 1983 and the Ohio Civil Rights Act; (2) age discrimination, in violation of the Age Discrimination in Employment Act, 29 U.S.C. 621; (3) race discrimination, in violation of Title VII and the Ohio Civil Rights Act; and (4) intentional infliction of emotional distress.

{¶ 6} The district court granted summary judgment to appellees on all claims, and appellant appealed to the United States Court of Appeals for the Sixth Circuit. On December 1, 2004, the Sixth Circuit released an opinion in which it affirmed the judgment of the district court with respect to appellant's claims for wage discrimination under Title VII and the Equal Pay Act, her race and age discrimination claims, and her claim alleging intentional infliction of emotional distress. See, generally, Birch v. Cuyahoga Cty. Probate Court (C.A.6, 2004), 392 F.3d 151 ("Birch I"). The Sixth Circuit reversed the judgment of the district court, however, with respect to appellant's claim of sex discrimination under the Ohio Civil Rights Act. On remand, the district court dismissed appellant's remaining claim without prejudice.

{¶ 7} Appellant filed a new action in the Cuyahoga County Court of Common Pleas on February 14, 2005, alleging wage-based sex discrimination in violation of the Ohio Civil Rights Act and the Ohio Fair Minimum Wage Standards Act, R.C. 4111.17. On May 10, 2005, appellant moved the trial court to "preclude defendants from filing a dispositive motion" with respect to her sex discrimination claim under the Ohio Civil Rights Act, arguing that the decision in Birch I precluded dispositive motions under the doctrines of collateral estoppel and the law of the case. On May 11, 2006, the trial court denied appellant's motion and granted appellees leave to file motions for summary judgment. Appellees filed a joint motion for summary judgment on June 26, 2006, and appellant responded on July 26, 2006. The trial court granted summary judgment to appellees on September 11, 2006. This appeal followed.

Assignment of Error

{¶ 8} "The Trial Court erred in granting Appellees' Motion for Summary Judgment with respect to Appellant's gender discrimination and Equal Pay Act claim."

{¶ 9} In her single assignment of error, appellant maintains that the trial court erred by granting summary judgment to appellees on her claim under the Ohio Fair Minimum Wage Standards Act because the trial court wrongly determined that professionals are excluded from the definition of "employees" under the act. Appellant argues that the trial court erred by granting summary judgment on her claim of wage-based sex discrimination under the Ohio Civil Rights Act because the trial court was bound by the decision of the United States Court of Appeals for the Sixth Circuit in Birch I. Appellant also asserts that summary judgment was inappropriate because reasonable minds could conclude that she has established a prima facie case of sex discrimination.

Summary Judgment Standard

{¶ 10} In reviewing a trial court's ruling on a motion for summary judgment, this court applies the same standard a trial court is required to apply in the first instance: whether there were any genuine issues of material fact and whether the moving party was entitled to judgment as a matter of law. Parenti v. Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829, 586 N.E.2d 1121. In applying this standard, evidence is construed in favor of the nonmoving party, and summary judgment is appropriate only if reasonable minds could only conclude that judgment should be entered in favor of the movant nonetheless. Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686-687, 653 N.E.2d 1196.

{¶ 11} The moving party "`bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims.'" Vahila v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, quoting Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264. The nonmoving party then has a reciprocal burden to set forth specific facts, by affidavit or as otherwise provided by Civ.R. 56(E), that demonstrate that there is a genuine issue for trial. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, at ¶ 10.

Ohio Fair Minimum Wage Standards Act

{¶ 12} R.C. 4111.17(A), which prohibits wage discrimination on the basis of race, color, religion, sex, age, national origin, or ancestry, provides:

{¶ 13} "(A) No employer, including the state and political subdivisions thereof, shall discriminate in the payment of wages on the basis of race, color, religion, sex, age, national origin, or ancestry by paying wages to any employee at a rate less than the rate at which the employer pays wages to another employee for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar conditions."

{¶ 14} The term "employees," as defined by R.C. 4111.01(D),¹ includes "any individual employed by an employer," but does not include "any individual employed * * * in a bona fide executive, administrative or professional capacity as such terms are defined by the Fair Labor Standards Act." The Fair Labor Standards Act contains a similar exception for bona fide executive, administrative, and professional employees, but specifically provides that this exception does not apply to the discrimination provisions of the Equal Pay Act. 29 U.S.C. 213(a)(1). The Ohio Revised Code does not contain a corresponding restriction.

{¶ 15} Appellant is correct in principle that case law interpreting the Equal Pay Act is used to interpret R.C. Chapter 4111. See Creech v. Ohio Cas. Ins. Co. (S.D.Ohio 1996), 944 F.Supp. 1347, 1353. This is only the case, however, to the extent that the terms of the statutes are consistent. See Genaro v. Cent. Transport, Inc. (1999), 84 Ohio St.3d 293, 298, 703 N.E.2d 782. When the terms diverge, we must apply the statute as written.

{¶ 16} Appellant does not dispute that she is a bona fide professional as defined by the Fair Labor Standards Act. Consequently, under the clear terms of R.C. 4111.01(D) she is exempt from coverage under R.C. Chapter 4111, and the trial court properly awarded summary judgment to appellees on this claim.

Ohio Civil Rights Act

{¶ 17} Appellant also maintains that the trial court erred by awarding summary judgment to appellees on her claim of sex discrimination in violation of the Ohio Civil Rights Act. Specifically, appellant maintains that when the evidence before the trial court on appellees' motion for summary judgment is considered in the light most favorable to her, reasonable minds could conclude...