Smith v. Superior Prod., LLC, 13AP–690.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: TYACK, J.
• Citation: 13 N.E.3d 664
• Parties: Don O. SMITH, Plaintiff–Appellant, v. SUPERIOR PRODUCTION, LLC, Defendant–Appellee.
• Docket Number: No. 13AP–690.,13AP–690.
• Decision Date: 08 May 2014

13 N.E.3d 664

Don O. SMITH, Plaintiff–Appellant
v.
SUPERIOR PRODUCTION, LLC, Defendant–Appellee.

No. 13AP–690.

Court of Appeals of Ohio, Tenth District, Franklin County.

May 8, 2014.

13 N.E.3d 665

Mansell Law LLC, and Gregory R. Mansell, Columbus, for appellant.

Vorys, Sater, Seymour and Pease LLP, Mark A. Knueve, John J. Kulewicz and Damien C. Kitte, Columbus; Dinsmore & Shohl, LLP, Jan E. Hensell and Anjali Chayan, for appellee Superior Production LLC.

The Gittes Law Group, Frederick M. Gittes and Jeffrey P. Vardaro, Columbus, for Amici Curiae Ohio Employment Lawyers Association & Ohio NOW Education and Legal Defense Fund.

Opinion

TYACK, J.

{¶ 1} Plaintiff-appellant, Don O. Smith (“Smith”), appeals the Franklin County Court of Common Pleas decision granting a motion for judgment notwithstanding the verdict, entering judgment for defendant-appellee, Superior Production, LLC, on all counts, and conditionally granting a new trial. For the following reasons, we reverse the trial court's setting aside of the jury's verdict and remand the case for the verdict to be reinstated.

{¶ 2} Smith brings five assignments of error for our consideration:

[I.] THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON

13 N.E.3d 666

RACE DISCRIMINATION RELATED TO THE LAYOFF.

[II.] THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT FOR RETALIATION—RECALL.

[III.] THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT ON HOSTILE WORK ENVIRONMENT BASED ON RACE.

[IV.] THE TRIAL COURT ERRED BY HOLDING THE JURY'S AWARD WAS EXCESSIVE.

[V.] THE TRIAL COURT ERRED BY INSTRUCTING THE JURY TO DEDUCT UNEMPLOYMENT COMPENSATION FROM THE AWARD.

{¶ 3} Smith, an African–American, began working for Superior Production, LLC (“Superior”), a manufacturing company that produces parts for the automotive industry in the early 1980's as a press operator. Working many of the various jobs in the plant, Smith rose to the position of production supervisor in 2002 in charge of operating a whole production facility reporting directly to general management. Superior is owned, in part, by the Holstein family. Richard Holstein is the president and his two brothers Roger and Andy are vice presidents. All three of them are owners. Roger's son, Duane Holstein (“Holstein”), is the manufacturing manager, part owner, and was Smith's direct supervisor. In late 2008, Superior employed about 250 people and operated two facilities within walking distance of each other—one on Marion Road and the other on Fairwood Avenue.

{¶ 4} On October 20, 2008, Smith was working as production supervisor of the Marion Road plant when production was halted, which Holstein heard from his office. Smith testified that Holstein stormed out of his office and asked “ ‘what the fuck the presses stopped running for,’ ” and Smith replied that there was a problem with the tools. Holstein then told Smith “ ‘Well, why don't you just sign out and go home, nigger?’ ” (Tr. Vol. II, at 153.) (The racial slur “nigger” hereinafter “n-word.”) Holstein then immediately returned to his office. Smith clocked out, left the building, and walked to the other plant on Fairwood Avenue to talk to general manager, Paul Hook. Smith testified that he complained about the racially hostile work environment and his aversion to being directly supervised by Holstein because he was racist. Smith acknowledges he did not tell Paul Hook that Holstein used the n-word. Smith was transferred to the Fairwood plant on October 29 to a different shift and was demoted.

{¶ 5} In December 2008, Superior began laying-off employees due to the great recession and eventually laid-off 60 of its 250 employees. Smith was laid-off on December 17, 2008, he was the eighth employee to be terminated within the first round of layoffs, and the first employee in the production department. A major point of contention is whether discriminatory animus was a factor in Smith's termination and, if so, whether Smith would have been terminated anyway due to the economic down-turn.

{¶ 6} After some months, Superior began rehiring many of the recently terminated employees. Superior claims that it rehired employees based on their skills and the needs of the company. Smith, however, was not rehired despite his years of experience and former high position with Superior.

{¶ 7} On December 20, 2011, Smith filed a complaint against Superior alleging race discrimination, race-based retaliation, and

13 N.E.3d 667

a hostile work environment, as well as other claims. The trial court denied Superior's motion for summary judgment on November 28, 2012. A four-day jury trial commenced on March 19, 2013.

{¶ 8} Evidence, other than the October 20 incident, was presented to show the racial discrimination and intimidation that occurred at Superior. There was evidence of guns being used as a form of intimidation against African–Americans. Superior had a no drugs, alcohol, or firearms policy posted on their front doors yet management was apparently allowed to possess firearms and bring them to the factories. Smith testified that Holstein kept a handgun in his office and would deliberately cock the gun and set it on his desk when Smith was called into his office. Another African–American employee also testified that Holstein would deliberately set out the gun on his desk whenever he was called to the office. Other evidence was presented that Holstein used the n-word and that such racial language was common and tolerated at Superior.

{¶ 9} The jury returned a verdict in favor of Smith on the claims of race discrimination, retaliation for failing to rehire Smith, and hostile work environment. The jury awarded $549,307.77 in damages. Superior filed a post-trial motion for judgment notwithstanding the verdict (“JNOV”) under Civ.R. 50(B) or, in the alternative, for a new trial under Civ.R. 59(A). On July 16, 2013, the trial court issued a decision on Superior's post-trial motions. The trial court determined that there was insufficient evidence to support Smith's claims against Superior and granted Superior's motion for JNOV. The trial court also conditionally granted Superior's motion for a new trial, which was superseded by the JNOV. Smith appeals from these decisions by the trial court.

{¶ 10} A motion for JNOV is governed by Civ.R. 50(B) :

Whether or not a motion to direct a verdict has been made or overruled and not later than twenty-eight days after entry of judgment, a party may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion; or if a verdict was not returned such party, within twenty-eight days after the jury has been discharged, may move for judgment in accordance with the party's motion. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned, the court may allow the judgment to stand or may reopen the judgment. If the judgment is reopened, the court shall either order a new trial or direct the entry of judgment, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence. If no verdict was returned the court may direct the entry of judgment or may order a new trial.

A motion for JNOV is used to determine whether the evidence is totally insufficient to support the verdict. Harper v. Lefkowitz, 10th Dist. No. 09AP–1090, 2010-Ohio-6527, 2010 WL 5551001, ¶ 8. A motion for JNOV raises a question of law because the motion examines the “ ‘materiality of the evidence, as opposed to the conclusions to be drawn from the evidence.’ ” Texler v. D.O. Summers Cleaners & Shirt Laundry Co., 81 Ohio St.3d 677, 680, 693 N.E.2d 271 (1998), quoting Ruta v. Breckenridge–Remy Co., 69 Ohio St.2d 66, 68–69, 430 N.E.2d 935 (1982).

{¶ 11} Neither the weight of the evidence nor the credibility of the witnesses is proper consideration for the trial court.

13 N.E.3d 668

Posin v. A.B.C. Motor Court Hotel, Inc., 45 Ohio St.2d 271, 275, 344 N.E.2d 334 (1976). The evidence “must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied.” Osler v. Lorain, 28 Ohio St.3d 345, 347, 504 N.E.2d 19 (1986), citing Posin. A favorable ruling on such a motion is not easily obtained. Id. Appellate review of a ruling on a motion for JNOV is de novo. Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920, ¶ 14 (8th Dist.).

I. Race-based termination

{¶ 12} Smith's first assignment of error argues the trial court erred in granting the JNOV on his claim of race discrimination related to being laid-off, contending that direct evidence was...