Hollingsworth v. Time Warner Cable

• Decision Date: 22 September 2006
• Docket Number: No. C-050940.,No. C-050873.,No. C-050859.,No. C-050549.,No. C-050944.,C-050549.,C-050859.,C-050873.,C-050940.,C-050944.
• Citation: 861 N.E.2d 580,2006 Ohio 4903,168 Ohio App.3d 658
• Parties: HOLLINGSWORTH, Appellee and Cross-Appellant, v. TIME WARNER CABLE, Appellant and Cross-Appellee.
• Court: Ohio Court of Appeals

861 N.E.2d 580

168 Ohio App.3d 658

2006-Ohio-4903

HOLLINGSWORTH, Appellee and Cross-Appellant, v. TIME WARNER CABLE, Appellant and Cross-Appellee.

No. C-050549.

No. C-050859.

No. C-050873.

No. C-050940.

No. C-050944.

Court of Appeals of Ohio, First District, Hamilton County.

Decided September 22, 2006.

Cook, Portune, & Logothetis, David Cook, Stephen A. Simon, and Todd B. Portune, Cincinnati, for appellee and cross-appellant.

Roetzel & Andress, L.P.A., Peter K. Newman, and Libby M. Shaffer, for appellant and cross-appellee.

PAINTER, Presiding Judge.

{¶ 1} In this wrongful-termination case, we affirm the jury verdict. We affirm all of the trial court's rulings on post-trial motions, with one exception — we reinstate the original award of attorney fees.

{¶ 2} Plaintiff-appellee and cross-appellant, Patti Hollingsworth, was fired by her former employer, defendant-appellant and cross-appellee, Time Warner Cable. Hollingsworth had worked for Time Warner since 1989 and was an audit coordinator when she was fired in 2002. In her last few months of employment, Hollingsworth had suffered from chronic sinusitis, entitling her to time off under the Family and Medical Leave Act ("FMLA"). During her FMLA absence, she had become pregnant, and a short time later, she was terminated — purportedly because of her poor job performance.

{¶ 3} Hollingsworth sued, asserting Title VII pregnancy discrimination and FMLA discrimination and retaliation. The trial court granted summary judgment for Time Warner, and the case was appealed for the first time in Hollingsworth v. Time Warner Cable ("Hollingsworth I").¹ In Hollingsworth I, we held that Hollingsworth had presented sufficient evidence of discriminatory conduct to overcome summary judgment on the issue of whether Time Warner's justification for termination was a pretext. Accordingly, we reversed and remanded.

{¶ 4} On remand, the case was tried to a jury. The jury found that Time Warner had engaged in discrimination and awarded Hollingsworth back pay, liquidated damages, compensatory damages, and punitive damages. Judgment was entered, and Time Warner moved for a new trial, remittitur, and judgment notwithstanding the verdict ("JNOV"). The trial court remitted both the back-pay award and liquidated-damages award in equal amounts and reduced the award for attorney fees.

{¶ 5} Time Warner assigns error to the trial court's decisions (1) refusing to grant a new trial on the issue of liability, (2) refusing to vacate or remit the jury's damage awards or to grant a new trial on damages, (3) granting in part Hollingsworth's attorney-fees petition, and (4) refusing to grant a new trial based on Hollingsworth's counsel's remarks during closing argument. Hollingsworth's cross-appeal challenges the trial court's decisions (1) partially granting Time Warner's motion for remittitur on her award of back pay and (2) denying in part her attorney-fees petition.

{¶ 6} We reverse that part of the trial court's judgment remitting Hollingsworth's attorney fees by $26,667, but we affirm the balance of the trial court's judgment.

I. Hollingsworth's History at Time Warner

{¶ 7} Hollingsworth began working at Time Warner in 1989. She was promoted to audit coordinator in 1996—a position she held until her termination.

{¶ 8} In October 2000, Hollingsworth was diagnosed with chronic sinusitis, entitling her to intermittent FMLA leave from employment.

{¶ 9} In September 2001, Hollingsworth left work early because she was ill. For the next two days, her physician sent notes to Theresa Johnson, Hollingsworth's supervisor, regarding Hollingsworth's absences. In response, Johnson contacted Hollingsworth's physician to confirm the validity of her illness. On learning of Johnson's unauthorized contact, Hollingsworth complained to the United States Department of Labor ("DOL"). The DOL investigated and determined that with the exception of Johnson's direct contact with the physician's office regarding Hollingsworth's medical condition, Time Warner had "appeared to be in full compliance with the FMLA in regard to [Hollingsworth's] employment."

{¶ 10} About two months later, Hollingsworth told Time Warner that she had become pregnant. Later, Hollingsworth's obstetrician certified the pregnancy and requested that she reduce her workload.

{¶ 11} In January 2002, Johnson completed annual performance evaluations. Hollingsworth received an individual score of 4.8 out of a possible 5 points. Johnson also noted that Hollingsworth's work was thorough and that her attention to detail had yielded a quality job performance. The evaluation was signed by department manager Connie Emerson.

{¶ 12} Later that month, Hollingsworth's attorney wrote a letter to Leroy Peyton, Time Warner's vice president of human resources, concerning the way Hollingsworth had been treated after her FMLA-protected absences and her DOL complaint. The letter charged that (1) her supervisors had made various comments questioning her dependability, (2) she had not been considered for a new position, and (3) she was soon to be demoted to a clerical position because of her absences and DOL complaint. When Time Warner failed to respond, Hollingsworth's attorney sent three follow-up letters.

II. The Theft

{¶ 13} In January 2002, a lobby supervisor reported a problem with Customer Service Representative ("CSR") Tisia Hill's handling of a customer account. As a CSR, Hill would enter bankruptcy adjustments to customer accounts into the computer. Hollingsworth was responsible for auditing these bankruptcy adjustments each day. To audit the bankruptcy adjustments, Hollingsworth would review a daily adjustment report and then compare the dollar-amount entries in both the subscriber-adjustment-inquiry ("SAI") and the subscriber-memo-statement ("SMS") screens for each account. Any difference between the dollar amount listed on the SAI screen and that listed on the SMS screen was to be reported to the CSR who handled the bankruptcy adjustment and to the CSR's lobby supervisor. The error would then be recorded in a monthly error log.

{¶ 14} When Emerson contacted Hill about the customer complaint, Hill stated that she had made a mistake while posting the customer's payment on the account. Hill later admitted that she had kept the customer's cash payment and that she had entered a bankruptcy statement on the customer's account in an attempt to conceal the theft. Hill was terminated, and a more thorough investigation followed, which revealed that Hill had stolen over $18,000. Hollingsworth was then investigated to discover whether she had failed to perform her audit-coordinator duties.

{¶ 15} The next month, Emerson signed an employee-performance notice indicating that Hollingsworth should be terminated for having improperly audited Hill's adjustments and for allowing an estimated $18,000 loss to Time Warner. Emerson also noted that for months, Hollingsworth's audit reports had failed to include one township's accounts.

{¶ 16} In early March 2002, Hollingsworth was fired for "poor job performance." The employee-termination evaluation noted that Hollingsworth had failed to follow appropriate audit procedures and that the failure had led to Hill's theft. Curiously, on the termination evaluation, Johnson gave Hollingsworth low marks, whereas just two months earlier, Hollingsworth's annual evaluation—completed and signed by Johnson—had shown contrasting high marks throughout the range of evaluating factors.

{¶ 17} Time Warner had given Hollingsworth neither warning nor notice of disciplinary proceedings until the day she was fired. That day, she had come to work, was called to a meeting, and was fired on the spot.

III. The Posttrial Motions and Jury Awards

{¶ 18} After a trial, the jury awarded Hollingsworth $80,000 in back pay, $80,000 in liquidated damages, $32,500 in compensatory damages, and $225,000 in punitive damages. Upon Time Warner's posttrial remittitur motion, the trial court reduced the back-pay award from $80,000 to $40,000, with a corresponding reduction in value for the liquidated-damages award. The trial court also partially granted Hollingsworth's motion for attorney fees, reducing the amount awarded from $199,312.70 to $172,645.70 and granting costs of $17,301.82. The trial court otherwise denied Time Warner's JNOV, remittitur, and new-trial motions.

{¶ 19} On appeal, Time Warner asks this court to overturn the trial court's decision granting only in part Time Warner's posttrial motion for remittitur, as well as its decision denying JNOV and a new trial on liability—and to do either or all the following: (1) set aside the jury's finding of liability or grant a new trial, (2) set aside or substantially remit the jury's awards of punitive, liquidated, back-pay, and compensatory damages, (3) substantially reduce the award of attorney fees and other costs, or (4) grant Time Warner a new trial based on Hollingsworth's attorney's closing argument. We discuss Time Warner's assignments of error in turn.

{¶ 20} We initially note that Time Warner failed to renew its directed-verdict motion at the close of all the evidence. A motion for a directed verdict that is denied at the close of the plaintiff's evidence must be renewed at the close of all evidence to preserve the error for appeal.² Consequently, by neglecting to renew its directed-verdict motion at the close of all the evidence, Time Warner has failed to preserve this issue on appeal.

IV. Pregnancy Discrimination and Proof of Pretext

{¶ 21} In its first assignment of error, Time Warner charges the trial court with error in failing to grant its JNOV and new-trial motions on Hollingsworth's pregnancy-discrimination and FMLA discrimination and retaliation claims. Time Warner argues that Hollingsworth failed to satisfy her burden to show that Time Warner's reasons for termination were pretextual.

{¶ 22} Title VII of the Civil Rights Act of 1964 prohibits discrimination based on...