Brewer v. Cleveland Bd. of Edn., 71283

• Decision Date: 04 August 1997
• Docket Number: No. 71283,71283
• Parties: , 130 Ed. Law Rep. 865 BREWER, Appellant, v. CLEVELAND CITY SCHOOLS BOARD OF EDUCATION.
• Court: Ohio Court of Appeals

Page 378

122 Ohio App.3d 378

701 N.E.2d 1023, 130 Ed. Law Rep. 865

BREWER, Appellant, v. CLEVELAND CITY SCHOOLS BOARD OF EDUCATION.

No. 71283.

Court of Appeals of Ohio,

Eighth District, Cuyahoga County.

Decided Aug. 4, 1997.

Michael B. Pasternak, Cleveland, for appellant.

Juanita Bryant, Cleveland; Duvin, Cahn & Hutton, Janette M. Louard and Robert M. Wolff, Cleveland, for appellee.

BLACKMON, Judge.

Vera Brewer, plaintiff-appellant, appeals the trial court's granting of summary judgment in favor of the Cleveland Board of Education ("Cleveland Board"), defendant-appellee, on her complaint for sexual harassment, racial discrimination, and sexual discrimination allegedly committed by her supervisors--Carl Lucido and Donald Wilson. Brewer, an African-American female employed as an assistant custodian by the Cleveland Board, claimed that (1) a co-worker made racist remarks about "Black people on welfare" and called her "Aunt Jemima," (2) she was asked to "use her feminine ways" to procure custodial supplies, and (3) she was given poor work evaluations and increased work that was not given to male employees, assigned dangerous chores, and denied promotions to higher paying positions. Brewer assigns the following error for our review:

"The trial court erred in granting defendant-appellee's motion for summary judgment when plaintiff-appellant provided appropriate evidence to demonstrate that genuine issues of material fact were in dispute as to whether defendant-appellee board of education subjected plaintiff-appellant to sexual and racial discrimination and harassment, and inflicted severe emotional distress."

After reviewing the record and arguments of the parties, we affirm the trial court's decision. The apposite facts follow.

On August 17, 1992, Cleveland Board hired Brewer as an assistant custodian. Of two hundred fifteen assistant custodians, only eight were female. In 1993, the Cleveland Board assigned Brewer to Euclid Park Elementary School ("Euclid"), where Carl Lucido, a white male, was her supervisor.

Brewer claimed that Lucido referred to her and an African-American female assistant cook as "Aunt Jemima." On one occasion, he made disparaging remarks about African-Americans on welfare and commented about Brewer once being on welfare. Lucido sometimes assigned Brewer to hazardous jobs, such as cleaning the boiler room and jobs requiring heavy lifting.

Brewer claimed that she was sexually harassed, threatened, and intimidated by a male salesman. She reported the incident to Lucido and the Cleveland Board, but to no avail.

At her request, Brewer was transferred to Bolton Elementary School ("Bolton") then to Iowa Maple Elementary School ("Iowa"). While at Iowa, she was told by her supervisor, Donald Wilson, to "use her feminine ways" to get custodial supplies. Wilson also required her to perform work not required of her male colleagues. She reported Wilson to her union and to the Cleveland Board. Thereafter, Wilson placed poor work evaluations in her employment file.

Brewer asked for a promotion from Iowa to another school. After initially denying her request, the Cleveland Board transferred Brewer to East Technical High School.

Brewer filed a complaint against the Cleveland Board, alleging that the Cleveland Board, by its agents Lucido and Wilson, sexually and racially discriminated against her, denied her promotions and "preferential" transfers, and intentionally inflicted emotional distress upon her. She also claimed Wilson sexually harassed her.

The Cleveland Board filed summary judgment claiming, as a political subdivision, that it was immune from Brewer's suit under R .C. Chapter 2744 and that Brewer failed to produce evidence of race and sex discrimination, sexual harassment, and intentional infliction of emotional distress. Brewer countered with her affidavit and deposition, including excerpts from the depositions of Richard Mosley (Manager of Building Operations for the Cleveland Board), Margaret Bowers-Moseley (Principal at Iowa Maple Elementary School), and Loretta Smith (custodial employee for Cleveland Board).

Richard Mosley stated that the remarks, if made, were inappropriate and explained that it was not the Cleveland Board's policy to tolerate them. Loretta Smith stated that she, too, had been sexually harassed by a black male supervisor. She viewed her situation as isolated and did not know of one other incident until she learned of Brewer's. She also admitted that she was not a witness to any of Brewer's allegations. Margaret Bowers-Moseley stated that Lucido's remarks were inappropriate.

Brewer also used statistical data in an effort to show an inference of discrimination against female custodians. She argued that hiring only eight females of two hundred fifty-five custodians indicated that the Cleveland Board impermissibly considered sex as a factor in its hiring decisions. Citing United States Postal Serv. Bd. of Governors v. Aikens (1983), 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403, she argued that a plaintiff may use such statistical evidence to prove discriminatory animus.

The trial court granted the Cleveland Board's motion for summary judgment without opinion. Brewer appeals and argues that the Cleveland Board has not sustained its burden of looking to the record and showing where Brewer's evidence does not present a genuine issue for trial. The Cleveland Board argues that even if Brewer's allegations are true, they do not present a genuine issue for trial. The Cleveland Board specifically refers to the remarks by Lucido and Wilson as isolated, stray remarks not having any disparate impact on Brewer's job. Also, Brewer's evidence does not show that she was treated differently in her job than were other employees. The Cleveland Board argues that Brewer's use of statistical data to show discrimination lacks the necessary probative value to require a trial on the issues of race and sex discrimination. Furthermore, the Cleveland Board argues that when Brewer requested a transfer, it was granted. Moreover, it argues that all promotions are based on seniority. Consequently, it argues that no genuine issue exists as a matter of law for trial.

Before we proceed with our discussion, we note that, during oral argument, the Cleveland Board withdrew its position that Brewer could not sue it under R.C. Chapter 2744. The Cleveland Board acknowledges that R.C. 2744.09 denies it immunity when federal and state civil rights claims are made. Wohl v. Cleveland Bd. of Edn. (N.D.Ohio 1990), 741 F.Supp. 688.

The standard of review in a summary judgment appeal is de novo. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial. Dupler v. Mansfield Journal Co. (1980), 64 Ohio St.2d 116, 18 O.O.3d 354, 413 N.E.2d 1187. De novo review requires that we review the trial court's decision independently and without deference to it. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 622 N.E.2d 1153.

Consequently, the movant must inform the trial court of the basis for its motion by identifying those portions of the record that demonstrate an absence of a genuine issue for trial. Dresher v. Burt (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. A genuine issue exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202.

Summary judgment will be affirmed when the plaintiff bases her claim of discrimination on one isolated comment by her employer and nothing more. Gagne v. Northwestern Natl. Ins. Co. (C.A.6, 1989), 881 F.2d 309. Here Brewer based her claim of race discrimination on Lucido's comments regarding blacks on welfare and referring to Brewer and another woman as "Aunt Jemina." Cleveland Board argues that these remarks are isolated and stray, and Brewer has not produced evidence to show otherwise.

The Cleveland Board argues that the remarks made by Lucido and Wilson were isolated, stray remarks that did not affect Brewer's job. "Stray remarks in the workplace when unrelated to the decision-making process, are insufficient to establish a prima facie case of discrimination, even when the statements are made by the decision-maker at issue." Smith v. Firestone Tire & Rubber Co. (C.A.7, 1989), 875 F.2d 1325, 1330.

Smith v. Firestone makes it clear that it is irrelevant whether the decision-maker is the one making the comment. The issue before the court is whether the comment is...