Mary Ann Olive v. Columbia/hca Healthcare Corp.
| Decision Date | 09 March 2000 |
| Docket Number | 75249 and 76349,00-LW-0979 |
| Parties | MARY ANN OLIVE, Plaintiff-appellee v. COLUMBIA/HCA HEALTHCARE CORP., ET AL., Defendant-appellants CASE NOS. 75249 and 76349. |
| Court | Ohio Court of Appeals |
Civil appeal from Court of Common Pleas, Case No. CV-328657.
For plaintiff-appellee: ELLEN S. SIMON, ESQ., CATHLEEN M. BOLEK ESQ., CHRISTOPHER P. THORMAN, ESQ., Lancione & Simon, 1717 Bond Court Bldg., 1300 East Ninth Street, Cleveland, OH 44114-1503.
For defendant-appellants: ANDREW S. POLLIS, ESQ., KIM M HASTINGS, ESQ., RICHARD T. PRASSE, ESQ,., Hahn, Loeser & Parks, 3300 BP America Bldg., 200 Public Square, Cleveland, OH 44114.
A jury awarded plaintiff Mary Ann Olive damages in this age discrimination and implied contract action against her employer, Columbia/HealthCare Corporation of Northern Ohio, the predecessor company to St. Vincent Charity Hospital (collectively referred to as the "hospital") where plaintiff worked as a head nurse before being terminated. In this appeal, the hospital claims the court erred by failing to direct verdicts, failing to grant a new trial, and by failing to correct numerous errors occurring at trial.
Our recitation of the facts is guided by the principle that we must review the evidence in the light most favorable to the party in favor of whom the jury returned verdicts. Osler v. Lorain (1986), 28 Ohio St. 3d 345, 347. Plaintiff, a registered nurse, began working at the not-for-profit hospital in 1973 (in 1995, the hospital ended its not-for-profit status when it merged with a large national health care organization) Over the years, she performed very competently and assumed positions with greater authority, eventually being named head nurse of the medical intensive care unit and the hemodialysis unit. These units were known in the hospital as "2-A." In addition to her duties as head nurse, she became the point person for the hospital's implementation of a computer program written to improve the efficiency of the intensive care unit. During her time with the hospital, her performance reviews were exemplary and contained no written criticisms of her work, other than notations that she should strive to improve her interpersonal skills.
In January 1995, the hospital created a cardiac intervention unit by merging the coronary care unit and the medical step down units. Plaintiff assumed management of the combined units along with her previously assigned job of running 2-A. Many members of the staff had difficulty adapting to the merged. units, and the evidence fairly showed there were significant growing pains associated with the newly merged unit. Tensions ran high and tempers sometimes flared. There were criticisms by some doctors that nurses were not performing their tasks in a satisfactory manner. At least two doctors threatened to stop sending their patients to the cardiac intervention unit.
As the nurse in charge of the unit, plaintiff found herself at the center of the turmoil. Some nurses complained plaintiff had been irritable and unapproachable, and she did not welcome any input from her nurses. Some witnesses said plaintiff would have fits of anger where she threw papers and pens. One doctor said he heard plaintiff say, "fuck this unit * * * I can't stand this fucking job." By her own admission, plaintiff agreed the merger of the units did not go smoothly and she admitted her direct supervisor had told her she could be "unapproachable" during times
of stress.
None of these shortcomings, however, were listed in plaintiff's performance reviews. Plaintiff's supervisor stated that she "counseled" plaintiff several times about her conduct toward the staff, but plaintiff did not recall any of this. It appears the "counseling" did not have an element of formality to it in the sense that it constituted direct disciplinary action.
In December 1996, plaintiff's supervisor made the decision to terminate plaintiff, citing plaintiff's continued inability to adapt to the changes in the merged units, manifested by her inability or refusal to communicate better with the nurses under her supervision. At the time of her termination, plaintiff was forty-nine years old.
Plaintiff filed this age and implied contract action against the hospital. She based her age discrimination claim on her perception that she had been terminated, along with three other hospital employees, because her length of tenure at the hospital made her the highest paid nurse. Plaintiff based her implied contract claim on a graduated discipline policy established by the hospital. The hospital admittedly did not follow the procedure in this case, but claimed plaintiff was a "director," a layer of upper management to whom the disciplinary procedures did not apply.
At trial, a jury returned verdicts for plaintiff on both the age discrimination and implied contract claim, and also awarded punitive damages. The court awarded attorneys fees and prejudgment interest.
The first and second assignments of error complain that the court erred by failing to grant a directed verdict on the age discrimination, punitive damages and implied contract claims and likewise erred by failing to grant the hospital's motion for judgment notwithstanding the verdict on those same claims.
The Supreme Court has stated that "federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Little Forest Med. Ctr. v. Ohio Civ. Rights Comm. (1991), 61 Ohio St.3d 607, 609-610, quoting Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 196.
A person claiming discrimination can prove a case in one of two ways: with direct evidence or by establishing a prima facie case of discrimination. "Direct evidence is found, for instance, where an employer's policy is discriminatory on its face or where a statement by an employer directly shows there is a discriminatory motive." Schlett v. Avco Fin. Servs., Inc. (N.D.Ohio 1996), 950 F.Supp. 823, 828. The party who shows direct evidence of discriminatory intent may forego reliance on the prima facie test." Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 588. This kind of evidence is generally hard to come by, for it is the rare discriminator that leaves its tracks uncovered.
For this reason, the courts have developed a framework that permits a person claiming discrimination to show discrimination in the absence of direct evidence. In Barker v.. Scovill, Inc. (1983), 6 Ohio St.3d 146, the court adopted the analytic framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, for use in Title VII cases, and modified the elements of a prima facie case to fit the contours of former R.C. 4101.17. The court held:
In order to establish a prima facie case of age discrimination, violative of R.C. 4101.17, in an employment discharge action, plaintiff-employee must demonstrate (1) that he was a member of the statutorily protected class, (2) that he was discharged, (3) that he was qualified for the position, and (4) that he was replaced by, or that his discharge permitted the retention of, a person not belonging to the protected class. Defendant-employer may then overcome the presumption inherent in the prima facie case by propounding a legitimate, nondiscriminatory reason for plaintiff's discharge. Finally, plaintiff must be allowed to show that the rationale set forth by defendant was only a pretext for unlawful discrimination.
Federal cases considering whether a court erred by failing to direct a verdict in discrimination cases, have consistently held that once a case is tried on the merits and resulted in a jury verdict, the reviewing court cannot reconsider whether a plaintiff made out a prima facie case, but instead must directly consider whether the plaintiff proved intentional discrimination. In Gehring v. Case Corp. (C.A.7, 1994), 43 F.3d 340, 343, the court stated:
Once the judge finds that the plaintiff has made the minimum necessary demonstration (the "prima facie case") and that the defendant has produced an age-neutral explanation, the burden-shifting apparatus has served its purpose, and the only remaining question the only question the jury need answer is whether the plaintiff is a victim of intentional discrimination. (emphasis sic.)
Likewise, in Skalka v. Fernald Environ. Restoration Mgmt. CorP. (C.A.6, 1999), 178 F.3d 414, 421, the court stated, (citation omitted). See, also, Sanchez v. Mora-San Miguel Electric Coop. Inc. (C.A.10, 1999), 173 F.3d 864, 864, fn. 3; Jiminez v. Mary Washington College (C.A.4, 1995), 57 F.3d 369, 377; Polacco v. Curators of Univ. of Mo. (C.A.8, 1994), 37 F.3d 366, 369-370; Hayman v. National Academy of Sciences (C.A.D.C., 1994), 23 F.3d 535, 537; Coffey v. Dobbs Intern. Services, Inc. (C.A.2, 1999), 170 F.3d 323, 326.
It is an open question as to whether Ohio follows the federal approach. The Supreme Court had the opportunity to address this issue in Brynes v. LCI Communication Holdings Co. (1996), 77 Ohio St.3d 125, but failed to do so. In Brynes, an age discrimination plaintiff received a jury verdict and the issue on appeal was whether the trial court erred by failing to direct a verdict. In a split decision, a majority of four justices held that Brynes presented insufficient evidence of age discrimination because he failed to satisfy the fourth element of the Barker v Scovill, Inc. test -...
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