Evans v. Toys R Us-Ohio, Inc.

• Decision Date: 14 January 1999
• Docket Number: No. 5:98-CV-1305.,5:98-CV-1305.
• Parties: David B. EVANS, Plaintiff, v. TOYS R US-OHIO, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

32 F.Supp.2d 974

David B. EVANS, Plaintiff, v. TOYS R US-OHIO, INC., et al., Defendants.

No. 5:98-CV-1305.

United States District Court, S.D. Ohio, Eastern Division.

January 14, 1999.

COPYRIGHT MATERIAL OMITTED

Richard C. Haber, Reminger & Reminger, Cleveland, OH, for David B. Evans, plaintiff.

James R. Williams, Beth R. Meyers, Mindy S. Novick, Jackson, Lewis, Schnitzler & Krupman, New York, NY, Stephen S. Zashin, Zashin & Rich, Cleveland, OH, for Toy's R Us-Ohio, Inc., Toy's R US-Delaware, Inc., defendants.

OPINION AND ORDER

GWIN, District Judge.

In this case, Plaintiff David B. Evans sues his employer, Defendants Toys "R" Us-Ohio, Inc. and Toys "R" Us-Delaware, Inc. (collectively "Toys R Us"), alleging unlawful race discrimination, retaliation, and violation of Ohio public policy.¹ Plaintiff Evans says despite his years of service and qualifications, Toys R Us has failed to promote him from a Store Manager position to an Assistant Store Director position.

On November 23, 1998, Defendants Toys R Us filed a motion for summary judgment seeking judgment on Plaintiff Evans' complaint [Doc. 17].² On December 17, 1998, Plaintiff Evans filed a motion to dismiss without prejudice his federal and state claims for retaliation (Counts III and IV) [Doc. 20].³ Because Defendants Toys R Us oppose dismissing these claims without prejudice,⁴ the Court decides both Plaintiff Evans' motion to dismiss, and Defendants Toys R Us' motion for summary judgment.⁵

For the reasons that follow, the Court grants Defendants Toys R Us' motion for summary judgment on Counts I, II and V of Plaintiff Evans' complaint. The Court also grants Plaintiff Evans' motion to dismiss Counts III and IV of the complaint without prejudice.

I. Facts

Plaintiff David Evans brings claims against Defendants Toys R Us for failure to promote him from the position of Store Manager to Assistant Store Director. Evans says that despite his nine years of service with the company and strong performance evaluations, Toys R Us has passed him over for promotion. In particular, Plaintiff Evans suggests that one of his immediate supervisors, Ms. Debbie Walsh, has treated him poorly. Plaintiff Evans claims that Ms. Walsh's treatment of him, and the fact that he has not been promoted, is because of his race.

In response, Defendants Toys R Us say that although Plaintiff Evans' evaluations show good performance as a Manager, such reviews do not guarantee that Evans is qualified to be promoted to Assistant Store Director. Defendants also contend that Evans' overall performance ratings are limited to "meets expectations" and that none of his supervisors have rated him as "promotable."

Plaintiff Evans is an African-American male employed by Defendants Toys R Us as a store manager in the Chapel Hills/Cuyahoga Falls store, near Akron, Ohio. Plaintiff Evans was first hired by Toys R Us in September 1986, as a storeroom laborer. His principle duties included assembling merchandise and unloading trucks. In 1988, Plaintiff Evans was promoted to Department Head where he became responsible for shipping and receiving at the Rolling Acres store.

In 1990, based upon his performance and the recommendation of his direct supervisor at the time, Plaintiff Evans was accepted into Defendant Toys R Us' management-training program. After successfully completing the management-training program, Evans was promoted to Store Manager at a store in Canton, Ohio.⁶

Two years later, in 1992, Plaintiff Evans was transferred back to the Rolling Acres store in the capacity of Front End Manager. This was a lateral move within the company. By the end of 1993, Plaintiff Evans had been transferred to the position of 500's Manager at the Chapel Hill store.

Throughout his employment with Defendant Toys R Us, Plaintiff Evans was reviewed periodically for job performance. These reviews were typically conducted by immediate supervisors or managers on either a semi-annual or annual basis. Non-management employees appear to be reviewed more frequently, at least semi-annually, compared to management-level employees that apparently are reviewed annually.

Plaintiff Evans argues that his job performance evaluations show that he has historically and consistently met company expectations. Evans says these review are evidence that he is ready for promotion. Defendants Toys R Us suggest that consistently receiving "meets expectations" ratings does not guarantee promotion.

Plaintiff Evans performance reviews from the period he first started at Toys R Us in September 1986, through the period he was promoted to Store Manager in December 1990, show Evans' job performance "met expectations" or was "above expectations." For instance, an employee evaluation dated February 7, 1989, shows Plaintiff Evans met expectations in his position as Department Head of the storeroom. In certain categories, Evans was rated as performing "above expectation." Shortly after his promotion to Store Manager in December 1990, Plaintiff Evans' evaluation stated that "David has gone from a driven, self motivated trainee and has developed into a driven, self motivated manager."⁷

Later employee evaluations also show Plaintiff Evans' job performance continued to meet company expectations. In his evaluation of April 3, 1991, Evans' supervisor summarized Evans' performance: "David has done an excellent job in the storeroom, and is ready to move on to another area — front end. He has put forth a tremendous effort to learn new procedures & policies ... If he continues to put forth this effort & energy he will ensure his success as a manager."⁸ Plaintiff Evans' performance evaluations for 1992 and 1993 also reflect overall job ratings of "meets expectation."⁹ In April of 1994, Linda Channels, the Store Director of the Chapel Hills location, reviewed Evans. At that time, Ms. Channels rated Plaintiff Evans very well.¹⁰ Ms. Channels projected that Evans would be promotable to the position of Assistant Store Director in one to two years.¹¹

However, beginning in 1995, Plaintiff Evans suggests that his performance evaluations "inexplicably changed." Plaintiff Evans say this change does not accurately reflect his job performance, but rather is because of his race.

For instance, although his April 1995 evaluation stated that he met company expectations, his "growth potential" (previously rated by Ms. Channels as promotable within one to two years) was downgraded to "correctly placed in position." This was the first time an evaluation placed limits on Evans' upward growth in the company. Evans contends that this downgrade did not reflect the opinions of his direct supervisor at the time, Mr. Chris Elias. Evans suggests that Mr. Elias was instructed to change the evaluation by then District Manager, Mr. David Peachey. Plaintiff Evans says that after sitting in on Mr. Elias's evaluation of Evans, Mr. Peachy instructed Elias to rewrite the evaluation. Mr. Peachey could not recall the incident.¹²

In 1996, Plaintiff Evans says that matter worsened when a new Assistant Director, Ms. Debbie Walsh, was assigned to the Chapel Hill store. Evans says that Ms. Walsh was extremely critical of him. While Plaintiff Evans' evaluation dated February 1996, showed his overall performance as "meeting expectations," Ms. Walsh downgraded certain of his performance ratings to "below expectation" in areas Plaintiff Evans had previously received ratings of "above expectations." This included a "below expectation" rating for Supervisory Skills and Planning/Organization Skills. Ms. Walsh also suggested that Evans' be "laterally assigned to the position of `Salesfloor Manager'" to enhance Evans' professional development.

On November 15, 1996, Ms. Walsh gave Evans his mid-year management review. Again, she rated Evans' overall performance as "meeting expectations." However, according to Ms. Walsh's review, Plaintiff Evans had experienced difficulty adjusting to the Salesfloor Manager position. Walsh therefore reassigned Evans to the Front-End Manager position where she reports that "he is proving to be effective."¹³

Shortly after this review, Evans wrote a letter to Toys R Us Human Resource Manager, Ms. Linda Klugh, complaining of Walsh's conduct and his November 15, 1996 mid-year evaluation. In his letter, dated November 16, 1996, Evans says that "Ms. Walsh has been very hostile in her treatment of me and will not listen or show any respect for my opinions regarding operations that could benefit the company."¹⁴ Evans also writes: "In the recent past I have been contacted by Toys R Us employees about the treatment that Ms. Walsh has bestowed upon me. They have indicated to me that Ms. Walsh has disdain against minorities and men in particular."¹⁵

Plaintiff Evans complains that despite receiving the November 16, 1996 letter, Human Resource Manager Klugh failed to investigate or take action to remedy the situation with Ms. Walsh. In her deposition, Ms. Klugh describes her actions.¹⁶ Despite Ms Klugh's testimony, Plaintiff Evans suggests that Defendants Toys R Us knew Ms. Walsh disliked minorities and men and knew that Walsh was treating Evans differently because of his race. For support, Evans shows a Counseling Review report detailing a reprimand Walsh received for inappropriate conduct regarding Evans.¹⁷ Plaintiff Evans says this counseling report is strong evidence that Ms. Walsh was treating him differently than other employees.

On October 20, 1996, Human Resource Manager Klugh sent an e-mail to then District Manager, Steve Poinsett. The e-mail outlined the developments between Plaintiff Evans' and Debbie Walsh. The message stated, in part:

I received his [David Evans] mid year review back today and attached was a 2 page letter that he carbon copied to his attorney. In this letter he makes some pretty strong accusations.... I also want to eliminate the line of thinking that he is being harassed because Debbie does not like minorities or men and that this is the result...