Patricia Dunnigan v. City of Lorain
| Decision Date | 16 October 2002 |
| Docket Number | 02CA008010,02-LW-4319 |
| Citation | 2002 Ohio 5548 |
| Parties | PATRICIA DUNNIGAN, Appellant v. CITY OF LORAIN, et al., Appellees C.A. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 99CV122725
Appellant, Patricia Dunnigan, appeals from the judgment of the Lorain County Court of Common Pleas that granted the motion for summary judgment of Appellees, City of Lorain and Craig Foltin. We affirm in part and reverse in part.
On February 17, 1999, Appellant filed a complaint against Appellees seeking damages for the injuries she sustained from alleged age and sex discrimination, failure to promote wrongful discharge, and slander. Discovery followed. Thereafter, on December 13, 1999 and December 15, 1999 Appellees filed two motions for summary judgment, which were subsequently granted by the trial court. Appellant timely appeals and raises four assignments of error for review. These will be addressed jointly for ease of review.
Appellant appeals the trial court's decision granting summary judgment in favor of Appellees. We agree in part.
Pursuant to Civ.R. 56(C), summary judgment is proper if: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. An appellate court reviews the trial court's granting of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105; Klingshirn v. Westview Concrete Corp. (1996), 113 Ohio App.3d 178, 180. Any doubt is to be resolved in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.
The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and is to identify portions of the record that demonstrate the absence of genuine issues of material fact as to an essential element of the non-moving party's claims. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The burden will then shift to the non-moving party, to offer "specific facts showing that there is a genuine issue for trial." Id. at 293. See, also, Civ.R. 56(E). The non-moving party may not rest on the mere allegations and denials in the pleadings, but must submit some evidentiary material showing a genuine dispute over the material facts. Id. at 293.
Appellant asserts that she was discriminated against by Appellees in violation of R.C. 4112.02(A). That section provides: "It shall be an unlawful discriminatory practice: (A) For any employer, because of the *** sex *** [or] age *** of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire[.]" It is important to note that the Supreme Court of Ohio has held 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 applicable to cases involving R.C. Chapter 4112. Harold v. Bridgestone/Firestone, Inc. (Sept. 16, 1998), 9th Dist. No. 18915, at 6-7, citing Plumbers & Steamfitters Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 196.
The two ways to prove employment discrimination are disparate treatment and disparate impact. Abram v. Greater Cleveland Regional Transit Authority, 8th Dist. No. 80127, 2002-Ohio-2622, at ¶40.
Disparate treatment occurs when an employer treats an employee less favorably than others based on an unlawful motive. Abram at ¶40, citing Internatl. Bhd. of Teamsters v. United States (1977), 431 U.S. 324, 335, fn.15, 52 L.Ed.2d 396. To prevail in a disparate treatment employment discrimination case, plaintiff must show discriminatory motive. Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 583. A plaintiff may establish a prima facie case of unlawful discrimination by producing either direct or indirect evidence of discrimination. Harold, supra, at 8. See, also, Crosier v. Quikey Mfg. Co., Inc. (Feb. 28, 2001), 9th Dist. No. 19863, at 17, and McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 36 L.Ed.2d 668. Direct evidence is evidence, of any nature, showing that the employer more likely than not was motivated by a discriminatory intent. Crosier, supra, at 17. See, also, Harold, supra, at 7, and Mauzy, 75 Ohio St.3d at 586-87.
Absent direct evidence in the record from which a prima facie case of discrimination could be established, appellant may prove discrimination by showing: "(1) that she is a member of a protected class; (2) that she suffered an adverse employment action; (3) that [she] was qualified for the position; and (4) that comparable employees not within the protected class were treated more favorably." Harold, supra, at 9. See, also, Crosier, supra, at 25; McDonnell, 411 U.S. at 802; Kohmescher v. Kroger Co. (1991), 61 Ohio St.3d 501, syllabus; and Byrnes v. LCI Communications Holdings Co. (1996), 77 Ohio St.3d 125, 128. For purposes of age discrimination, the United States Supreme Court modified the fourth element of the above test; the plaintiff needs to be replaced by a "substantially younger" individual. O'Connor v. Consolidated Coin Caterers Corp. (1996), 517 U.S. 308, 313, 134 L.Ed.2d 433. This Court has previously adopted the standard set forth in O'Connor. See Outzen v. Continental Gen. Tire, Inc. (Feb. 2, 2000), 9th Dist. No. 19604, at 7. The function of this four-part test allows a "plaintiff to raise an inference of discriminatory intent indirectly." Mauzy, 75 Ohio St.3d at 583.
Once the plaintiff establishes a prima facie case, the employer must overcome the presumption of discriminatory intent by producing evidence of a legitimate, nondiscriminatory reason for his actions. Id. at 582. Then, the plaintiff is permitted to show that the given reasons were merely a pretext for unlawful discrimination. Id. "Mere conjecture that [the] employer's explanation is a pretext for intentional discrimination is an insufficient basis for denial of summary judgment." Carney v. Cleveland Hts.-Univ. Hts. City School Dist. (2001), 143 Ohio App.3d 415, 429. The Plaintiff is required to produce evidence that the employer's stated reasons were factually untrue. Reeves v. Sanderson Plumbimg Prods., Inc. (2000), 530 U.S. 133, 143, 147 L.Ed.2d 105. See, also, Carney, 143 Ohio App.3d at 429.
In this case, it is uncontroverted that Appellant is a member of a statutorily protected class. R.C. 4112.02(A) protects individuals from discrimination by employers on the basis of age and sex. R.C. 4112.01(A)(14) defines age as "at least forty years old." Appellant, a female, was not promoted to the Assistant Deputy Director Auditor II position, and was forty-seven years old at the time of her discharge. Appellees concede, in their motion for summary judgment, that Appellant has established a prima facie case of sex discrimination through indirect evidence. We will assume Appellant has also established a prima facie case of age discrimination for ease of review.
Assuming Appellant has shown a prima facie case of discrimination, Appellant's first assignment of error is still not well taken. Appellees have offered legitimate reasons for Appellant's removal. Two letters of reprimand were sent to Appellant, stating that as of late Appellant was: uncooperative; a disruptive influence in the office; lacking respect for co-workers; making disparaging comments about Appellee Foltin to co-workers; consistently tardy; and undermining the authority of Appellee Foltin. Appellant has not shown that these stated reasons were a pretext for the intentional discrimination based on age or sex; her reference to Appellee Foltin's comment that Appellant's replacement was "young" but would "grow into" the job is not enough. Appellant has not produced evidence that Appellees' reasons were factually untrue as required by Reeves.
Based on the above reasoning, Appellant has not put forth evidence establishing disparate treatment by Appellee.
"Disparate impact results from facially neutral employment practices that have a disproportionately negative effect on certain protected groups and which cannot be justified by business necessity." Abram, at ¶41, quoting Internatl. Bhd. of...
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