[Cite as Jaber v. FirstMerit Corp., 2017-Ohio-277.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
ASHMAHAN "SUE" JABER C.A. No. 27993
Appellant
v. APPEAL FROM JUDGMENT ENTERED IN THE FIRSTMERIT CORP. et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV 2014-03-1242
DECISION AND JOURNAL ENTRY
Dated: January 25, 2017
CARR, Presiding Judge.
{¶1} Appellant Asmahan “Sue” Jaber appeals the judgment of the Summit County
Court of Common Pleas that granted summary judgment in favor of appellees FirstMerit
Corporation; FirstMerit Bank, N.A.; Jennifer O’Brien; Shirley Ehrich; and Mary Perry. This
Court affirms.
I.
{¶2} Ms. Jaber, a naturalized United States citizen originally from Lebanon, had been
working for FirstMerit Bank for over thirty years when she was terminated. She subsequently
filed a complaint against FirstMerit and three bank managers alleging six claims for relief:
retaliation for a wage complaint (invoking R.C. Chapter 4111); discrimination based on age
(R.C. 4112.02(A)); discrimination based on national origin (R.C. 4112.02(A)); discrimination
based on perceived disability (R.C. 4112.02(A)); retaliatory discharge based on complaints of
age, national origin, and perceived disability discrimination (R.C. 4112.02(A)); and wrongful 2
discharge in violation of public policy (workplace bullying). The defendants answered and each
later filed motions for summary judgment. Ms. Jaber opposed the motions for summary
judgment, and the defendants replied. Ms. Jaber requested and was granted an extension of time
to complete discovery and supplement her brief in opposition to the motions for summary
judgment based on that additional discovery. The defendants replied. The trial court held an
oral hearing on the motions and, thereafter, granted summary judgment in favor of all
defendants. Ms. Jaber filed a timely appeal, raising six assignments of error for review. This
Court consolidates some assignments of error to facilitate review.
II.
Summary Judgment Standard of Review
{¶3} This Court reviews an award of summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial
court, viewing the facts in the case in the light most favorable to the non-moving party and
resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio
App.3d 7, 12 (6th Dist.1983).
{¶4} 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., 50 Ohio St.2d 317, 327 (1977).
{¶5} To prevail on a motion for summary judgment, the party moving for summary
judgment must be able to point to evidentiary materials that show that there is no genuine issue
as to any material fact, and that the moving party is entitled to judgment as a matter of law. 3
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once a moving party satisfies its burden of
supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to
Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere
allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a
reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine
triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d
447, 449 (1996).
{¶6} The non-moving party’s reciprocal burden does not arise until after the moving
party has met its initial evidentiary burden. To do so, the moving party must set forth evidence
of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings, depositions,
answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written
stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or stipulation may be
considered except as stated in this rule.”
Application of Federal Law
{¶7} The Supreme Court of Ohio has repeatedly 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
generally applicable to cases involving alleged violations of R.C. Chapter 4112.” Little Forest
Med. Ctr. of Akron v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-610 (1991), quoting
Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d
192, 196 (1981), citing Republic Steel v. Ohio Civ. Rights Comm., 44 Ohio St.2d 178 (1975);
Weiner v. Cuyahoga Community College Dist., 19 Ohio St.2d 35 (1969). See also Koballa v.
Twinsburg Youth Softball League, 9th Dist. Summit No. 23100, 2006-Ohio-4872, ¶ 20. “Thus,
‘reliable, probative, and substantial evidence’ in an employment discrimination case brought 4
pursuant to R.C. Chapter 4112 means evidence sufficient to support a finding of discrimination
under Title VII.” Plumbers & Steamfitters, 66 Ohio St.2d at 196.
III.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN ORDERING SUMMARY JUDGMENT ON [MS. JABER’S] CLAIM OF AGE DISCRIMINATION. CONSTRUING THE EVIDENCE IN [MS. JABER’S] FAVOR AS REQUIRED BY CIV.R. 56, REASONABLE MINDS CAN CONCLUDE THAT [MS. JABER] WAS TERMINATED BECAUSE OF HER AGE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN ORDERING SUMMARY JUDGMENT ON [MS. JABER’S] CLAIM OF DISABILITY DISCRIMINATION. CONSTRUING THE EVIDENCE IN [MS. JABER’S] FAVOR AS REQUIRED BY CIV.R. 56, REASONABLE MINDS CAN CONCLUDE THAT [FIRSTMERIT] UNDERSTOOD THAT [MS. JABER] HAD A DISABILITY, HARASSED HER BECAUSE OF IT RATHER THAN ACCOMMODATE HER AND TERMINATED HER BECAUSE SHE COMPLAINED.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN ORDERING SUMMARY JUDGMENT ON [MS. JABER’S] CLAIM OF NATIONAL ORIGIN DISCRIMINATION. CONSTRUING THE EVIDENCE IN [MS. JABER’S] FAVOR AS REQUIRED BY CIV.R. 56, REASONABLE MINDS CAN CONCLUDE THAT [FIRSTMERIT] DESIRED TO TERMINATE [MS. JABER] BECAUSE OF HER LEBANESE BACKGROUND AND CULTURAL DIFFERENCES.
{¶8} Ms. Jaber argues that the trial court erred by granting summary judgment in favor
of FirstMerit on her claims of employment discrimination based on age, national origin, and
perceived disability. This Court disagrees.
{¶9} Ms. Jaber’s discrimination claims are based on R.C. 4112.02(A) which states that
“[i]t shall be an unlawful discriminatory practice * * * [f]or any employer, because of the * * *
national origin, disability, [or] age * * * to discharge without just cause * * * or otherwise to 5
discriminate against that person with respect to * * * any matter directly or indirectly related to
employment.”
{¶10} No party argues that there was direct evidence of discrimination. In cases of
indirect evidence of discrimination, Ohio courts apply the burden-shifting test enunciated in
McDonnell Douglas v. Green, 411 U.S. 792 (1973). Barker v. Scovill, Inc., 6 Ohio St.3d 146
(1983).
The McDonnell Douglas analysis is a three-step procedure that allocates the shifting burdens of production of evidence on the parties. First, the employee must establish a prima facie case of [ ] discrimination. Next, the burden of production shifts to the employer to state some legitimate non-discriminatory reasons for the employee’s discharge. Finally, the burden shifts back to the employee to show that the employer’s stated reasons were a pretext for [ ] discrimination.
Wang v. Goodyear Tire & Rubber Co., 68 Ohio App.3d 13, 16 (9th Dist.1990).
{¶11} To establish a prima facie case of age discrimination, an employee must show: (1)
that she was in the protected age range (at least 40 years old), (2) that she was subjected to an
adverse employment action like discharge, (3) that she was qualified for the position, and (4) that
she was replaced by a younger worker outside of the protected class. Wang, 68 Ohio App.3d at
16. “The test of whether an employee is qualified is whether [s]he is meeting [her] ‘employer’s
legitimate expectations.’” Brown v. Renter’s Choice, Inc., 55 F.Supp.2d 788, 793 (N.D.Ohio
1999), quoting Ang v. Procter & Gamble Co., 932 F.2d 540, 548-549 (6th Cir.1991). This
determination is “‘measured at the time the decision to terminate is made.’” Brown at 793,
quoting McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir.1990).
{¶12} To establish a prima facie case of national origin discrimination, an employee
must show: (1) that she was in a protected class, (2) that she suffered an adverse employment
action such as discharge, (3) that she was qualified for the employment, and (4) that comparable, 6
non-protected employees received more favorable treatment. Paranthaman v. State Auto
Property & Cas. Ins. Co., 10th Dist. Franklin No. 14AP-221, 2014-Ohio-4948, ¶ 29; see also
Mensah v. Michigan Dept. of Corrections, 621 Fed.Appx. 332, 334 (6th Cir.2015).
{¶13} To establish a prima facie case of perceived disability discrimination, an
employee must show: (1) that she was perceived as disabled, (2) that the employer took an
adverse employment action against her because of the perceived disability, and (3) that the
employee, although perceived as disabled, can safely and substantially perform the essential
functions of the job in question. Ames v. Ohio Dept. of Rehab. & Corr., 23 N.E.3d 162, 2014-
Ohio-4774, ¶ 26; see also Allen v. totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231, ¶
47, citing Hazlett v. Martin Chevrolet, Inc., 25 Ohio St.3d 279, 281 (1986). “Ohio disability
discrimination law is similar to the Federal Americans with Disabilities Act (“ADA”), and
therefore Ohio courts may seek guidance in the interpretation of the Ohio discrimination law
from regulations and cases that interpret the ADA.” Ames at ¶ 26. A disability is defined as “a
physical or mental impairment that substantially limits one or more major life activities of [an]
individual, [and includes] being regarded as having such an impairment.” 42 U.S.C.A.
12102(1)(A)/(C). “Major life activities” include, inter alia, “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working.” 42
U.S.C.A. 12102(2)(A).
{¶14} If the plaintiff makes a prima facie showing of discrimination, the burden shifts to
the employer to demonstrate a legitimate, nondiscriminatory reason, which includes
insubordination, for the adverse employment action. Allen at ¶ 5, citing Hood v. Diamond
Prods., Inc., 74 Ohio St.3d 298, 302 (1996). If the employer puts forth evidence of a legitimate, 7
nondiscriminatory reason, the burden shifts back to the employee to demonstrate that the
employer’s reason is merely a pretext. “To create a question of fact with respect to pretext, the
[employee] must demonstrate that the [employer’s] proffered reason for firing the employee ‘(1)
had no basis in fact, (2) did not actually motivate [the] discharge, or (3) was insufficient to
motivate [the] discharge.’” Harris v. OHNH EMP, L.L.C., 9th Dist. Summit No. 27455, 2015-
Ohio-3212, ¶ 15 (9th Dist.), quoting King v. Jewish Home, 178 Ohio App.3d 387, 2008-Ohio-
4724, ¶ 9 (1st Dist.). We explained:
“The first type of showing consists of evidence that the proffered bases for the [employee’s] discharge never happened and are thus factually false. The third showing ordinarily consists of evidence that other employees not in the protected class were not fired although they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff. These two types of rebuttals are direct attacks on the credibility of the employer’s proffered motivation for firing [the] plaintiff and, if shown, provide an evidentiary basis for what the Supreme Court has termed a suspicion of mendacity. In the second type of rebuttal, the [employee] admits that such conduct could motivate the dismissal. Thus, the [employee] indirectly attacks the credibility of the proffered explanation by showing, through the sheer weight of circumstantial evidence, that an illegal motivation was more likely than the explanation offered by the defendant.”
Harris at ¶ 15, quoting Thompson v. Merriman CCRC, Inc., 9th Dist. Summit No. 23229, 2006-
Ohio-6008, ¶ 23. Further, pretext may be evidenced by showing (1) that other employees outside
the protected class behaved in a comparable manner but did not suffer comparable adverse
employment actions, (2) the employer’s general policies and practices with regard to employees
in protected classes, (3) and the employer’s reaction to the employee’s participation in legitimate
activities. See McDonnell Douglas, 411 U.S. at 805.
{¶15} This Court assumes for the sake of argument that a genuine issue of material fact
exists regarding Ms. Jaber’s ability to establish a prima facie case of discrimination based on 8
age, national origin, and perceived disability. Accordingly, the burden shifts to FirstMerit to
demonstrate a legitimate, nondiscriminatory reason for Ms. Jaber’s discharge.
{¶16} In its motion for summary judgment, FirstMerit presented evidence that a
personal banker’s duties include, among other things, helping customers open new accounts;
obtain loans, credit, and debit cards; reorder checks; and facilitate other banking business. In
addition, personal bankers must call existing customers from a hot list in an attempt to get them
to accept additional services. Various bank managers testified during depositions that FirstMerit
expects that a personal banker will be able to complete all tasks satisfactorily within a 40-hour
work week.
{¶17} FirstMerit further demonstrated that, beginning in the fall of 2011, Ms. Jaber
exhibited performance issues, evidenced by customer complaints and incidents of unsecured
confidential information. In early September, she received a 90-day written warning
enumerating several customer complaints and noting her “poor judgment in exercising [her]
responsibilities as a Personal Banker.” The customer complaints included failing to submit a
credit card application that was six weeks overdue; failing to place check orders for multiple
customers, in one case for two months; failing to complete an account upgrade as requested; and
losing a check submitted by a customer who fell behind on an automobile loan. In addition,
despite an earlier warning, Ms. Jaber had committed various security breaches, including leaving
confidential customer information unsecured. FirstMerit informed her that she could face
“further corrective action” for violating the directives in the written warning. On September 30,
FirstMerit issued her a memo evidencing a “Doc Discussion” during which her branch manager
Ms. O’Brien informed her of additional customer complaints. A FirstMerit representative
testified during deposition that the bank did not issue another written warning at that time, given 9
the temporal proximity of the complaints with the ones delineated in the September 9 written
warning.
{¶18} Ms. Jaber responded to the written warning, informing FirstMerit that she had
been regularly working beyond her scheduled 40-hour work week without clocking in, in an
attempt to meet her responsibilities. Based on that disclosure, FirstMerit directed her to submit
an itemization of the unauthorized overtime hours she had worked. Ms. Jaber balked, and
asserted that she had donated that time and did not wish to be paid. Out of concern for remaining
in compliance with federal and state wage and hours laws, however, FirstMerit insisted that she
disclose the time she worked off the clock. After four directives from various bank personnel,
Ms. Jaber finally disclosed those hours. FirstMerit paid her in excess of $5000.00 for that time
based on Ms. Jaber’s affirmation that the 176 hours she disclosed covered all the time she had
worked off the clock.
{¶19} After becoming aware that Ms. Jaber had been working off the clock, FirstMerit
issued a directive to all branch employees not to work off the clock. Despite this directive, Ms.
Jaber continued to work off the clock in October and November 2011. In addition, she continued
to leave confidential information unsecured on her desk. Based on those continued infractions,
FirstMerit issued a last chance memorandum (“LCM”) to Ms. Jaber on November 30, 2011,
informing her that she would be reviewed for termination if she again worked off the clock,
violated company policies, or experienced ongoing performance related issues. Despite these
additional directives, Ms. Jaber continued to work off the clock, including on February 4, 2012.
On February 17, 2012, FirstMerit issued a memo to Ms. Jaber, informing her that she had
violated the LCM for continuing to work off the clock despite repeated directives not to do so,
and for additional customer complaints. Those complaints included failing to rewrite a loan 10
which caused a customer to become delinquent, failing to order new account checks after
misplacing documents for over 45 days, completing only one-third of an IRA disbursement
transaction, and failing to provide the necessary disclosure forms pursuant to bank policy and
federal law in approximately half of the more than 55 account kits Ms. Jaber gave to a certain
client.
{¶20} After issuing the LCM violation memo to Ms. Jaber, FirstMerit notified human
resources officer Amanda Pruett, who investigated the claimed violations and obtained a
statement from Ms. Jaber before presenting Ms. Jaber’s file to the performance review
committee (“PRC”) for a determination of further disciplinary action. Ms. Pruett verified the
complaints. The five-member PRC unanimously determined to terminate Ms. Jaber based on her
failure to follow policy and procedure. The members of the PRC all testified in their depositions
that they determined to discharge Ms. Jaber based on her ongoing disregard for the directive to
cease working off the clock, as well as the continuing customer complaints that she had failed to
follow through on actions necessary to meet their banking needs. Based on this evidence,
FirstMerit met its initial burden of demonstrating legitimate, nondiscriminatory reasons for
terminating Ms. Jaber.
{¶21} Ms. Jaber, on the other hand, did not present any evidence to rebut the bank’s
evidence that she continued to violate policies and procedures. In fact, Ms. Jaber repeatedly
admitted during her deposition that she continued to work off the clock despite the directives to
cease. Moreover, she admitted to failing to follow through on actions necessary to meet
customer banking needs. She merely offered excuses that she was very busy, had misplaced
items necessary to complete actions, or forgot to leave herself notes to follow up. Accordingly,
Ms. Jaber failed to present any evidence to rebut the bank’s evidence demonstrating its 11
legitimate, nondiscriminatory reasons for terminating her. However, assuming arguendo that a
genuine issue of material fact exists in this regard, Ms. Jaber failed to present any evidence of
pretext.
{¶22} The bank presented evidence that Ms. Jaber received progressive discipline and
multiple warnings and directives to cease her deficient and nonconforming activities. FirstMerit
further presented evidence of its concern that it remain in compliance with federal and state wage
and hours laws. On the other hand, Ms. Jaber presented no evidence that the reasons asserted by
the bank for her termination were untrue. In fact, she admitted the allegations. Moreover, Ms.
Jaber did not present any evidence that the bank’s concerns for complying with law and meeting
customer service satisfaction did not motivate her discharge or was insufficient to support her
discharge. Although she presented evidence that the bank had had a “don’t ask, don’t tell”
policy regarding working any necessary hours to get the job done (disputed by the bank), she
presented no evidence that any employee besides her continued to work off the clock after the
bank directed the cessation of such behavior in September 2011. In addition, she presented no
evidence that the other personal banker at the branch received the quantity and type of customer
complaints that Ms. Jaber received notwithstanding directives and guidance by bank managers.
Based on a thorough review of the record, this Court concludes that FirstMerit met its burden to
demonstrate that it was entitled to judgment as a matter of law on Ms. Jaber’s three claims
alleging employment discrimination. Moreover, we conclude that Ms. Jaber failed to meet her
reciprocal burden of presenting evidence to establish the existence of a genuine issue of material
fact as to those three claims. Accordingly, the trial court did not err by granting summary
judgment in favor of FirstMerit on Ms. Jaber’s claims alleging discrimination based on age,
national origin, and perceived disability. 12
{¶23} Ms. Jaber’s first, second, and third assignments of error are overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED IN ORDERING SUMMARY JUDGMENT ON [MS. JABER’S] CLAIM OF RETALIATION FOR REPORTING SHE HAD WORKED OVERTIME OFF THE CLOCK AND FOR BEING SUBJECTED TO DISCRIMINATION. CONSTRUING THE EVIDENCE IN [MS. JABER’S] FAVOR AS REQUIRED BY CIV.R. 56, REASONABLE MINDS CAN CONCLUDE THAT [FIRSTMERIT] SINGLED [MS. JABER] OUT FOR RETALIATORY, DISCRIMINATORY TREATMENT, LEADING INEVITABLY TO HER TERMINATION.
{¶24} Ms. Jaber argues that the trial court erred by granting summary judgment for
FirstMerit on her fifth claim alleging retaliatory discharge. This Court disagrees.
{¶25} To establish a prima facie case of retaliation, an employee must demonstrate (1)
that she was engaged in a protected activity, (2) that the employer knew of her participation in
the activity, (3) that she was subjected to adverse employment action, and (4) that “there is a
causal link between the protected activity and the adverse employment action.” Varner v.
Goodyear Tire & Rubber Co., 9th Dist. Summit No. 21901, 2004-Ohio-4946, ¶ 10, quoting
Wade v. Maxwell Util. Bd., 259 F.3d 452, 463 (6th Cir.2001). A causal connection is only
established where the employee has presented evidence “sufficient to raise an inference that the
protected activity was the likely motivation for the adverse action.” Varner at ¶ 11, citing EEOC
v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997).
{¶26} On appeal, Ms. Jaber argues that the protected activity in which she engaged was
disclosing that she had worked off the clock and that she was thereafter subjected to intermediate
disciplinary action and closely scrutinized. She has not alleged a cause of action in her
complaint in this regard. Rather, she alleged two retaliation claims: (1) retaliation (harassment
and ultimate discharge) for complaining that she had not been paid for overtime hours she
worked (first claim for relief), and (2) retaliation for raising the issue that she believed that the 13
bank was discriminating against her on the basis of age, national origin, and perceived disability
(fifth claim for relief).
{¶27} Although Ms. Jaber alleged in her first claim for relief that FirstMerit refused to
pay her for overtime hours after she requested that the bank do so, the only evidence presented
on this issue was that, upon learning that Ms. Jaber had worked unauthorized overtime, the bank
directed her four times to disclose the number of hours she worked so it could pay her. Ms.
Jaber delayed providing an itemization of hours, averring instead that she was not seeking
payment, and she had donated that time, and that she only wanted the bank to know what a hard
worker she was. In any event, Ms. Jaber did not respond to the defendants’ motions for
summary judgment in regard to their arguments and evidence pertaining to the first claim for
relief. “A party who fails to call a claimed error to the trial court’s attention at a time when it can
be avoided or corrected forfeits the right to argue that error on appeal.” GMS Mgt. Co. v.
Nguyen, 9th Dist. Wayne No. 08CA0014, 2008-Ohio-6574, ¶ 13. As Ms. Jaber failed to oppose
the defendants’ motions for summary judgment in regard to her first claim for relief alleging
retaliation, she has forfeited that issue on appeal.
{¶28} To the extent that Ms. Jaber argues that she was “hounded by her supervisors”
and “denied any help” despite that “it was clear that she was overworked and under distress,” she
only raises retaliation with regard to her perceived disability. Although she noted open heart
surgery and her carrying nitroglycerin nearly a decade before her termination, she only addresses
stress on appeal.
{¶29} FirstMerit acknowledged that Ms. Jaber raised a concern about discrimination in
an email after she had been notified of her violation of the LCM and pending review by the PRC.
Although she was ultimately terminated, the bank presented evidence that her discharge was 14
predicated on repeated disregard for directives not to work off the clock and ongoing, serious
customer complaints and security violations. Ms. Jaber’s email raising a question of
discrimination was vague and did not identify any type of discrimination or offer any support for
her speculative inquiry. In her opposition to the motions for summary judgment, Ms. Jaber notes
that “she raised her concern about discrimination” but that she “did not set out a legal claim.”
She failed to present any evidence tending to show how her termination was in retaliation for
raising an issue of discrimination based on a perceived disability. As there was no genuine issue
of material fact, the trial court did not err by granting summary judgment in favor of the
defendants on her fifth claim for relief.
{¶30} Ms. Jaber’s fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED IN ORDERING SUMMARY JUDGMENT ON [MS. JABER’S PUBLIC POLICY CLAIM OF WORKPLACE BULLYING AS A LEGITIMATE BASIS FOR WRONGFUL DISCHARGE WHERE AN EMPLOYER TARGETS AN EMPLOYEE FOR ADVERSE TREATMENT GUARANTEED TO MAKE HER FAIL.
{¶31} Ms. Jaber argues that the trial court erred by granting summary judgment in favor
of the defendants’ on her claim alleging a public policy violation premised on bullying. This
Court disagrees.
{¶32} To establish a claim for wrongful termination in violation of public policy, an
employee must demonstrate “1. [t]hat [a] clear public policy existed and was manifested in a
state or federal constitution, statute or administrative regulation, or in the common law (the
clarity element)[,] 2. [t]hat dismissing employees under circumstances like those involved in the
plaintiff’s dismissal would jeopardize the public policy (the jeopardy element)[,] 3. [t]he
plaintiff’s dismissal was motivated by conduct related to the public policy (the causation 15
element)[, and] 4. [t]he employer lacked overriding legitimate business justification for the
dismissal (the overriding justification element).” (Emphasis in original.) Collins v. Rizkana, 73
Ohio St.3d 65, 69-70 (1995), quoting H. Perritt, The Future of Wrongful Dismissal Claims:
Where Does Employer Self Interest Lie?, 58 U.Cin.L.Rev. 397, 398-399 (1989).
{¶33} Jaber concedes that no public policy claim regarding workplace bullying exists
under Ohio law. Instead, she argues for an expansion of the protections accorded to at-will
employees in furtherance of an “employer’s obligation to provide a safe workplace.” Although
her argument is not well developed, she premises it on “the notion of diversity recognition and
inclusion and fundamental decency.” She does not clarify what she means by diversity beyond
the issues of age, national origin, and perceived disability, all of which constitute statutorily
express protected classes. This Court has resolved those arguments above.
{¶34} To the extent that Ms. Jaber references fundamental decency, the United States
Supreme Court has recognized that Title VII (and by analogy state antidiscrimination laws) are
not “general civility code[s].” Faragher v. Boca Raton, 524 U.S. 775, 788 (1998). Instead,
hostility in the workplace is judged by “sufficiently demanding * * * standards” to avoid such
unwarranted expansion. Id. Although it addressed sexual hostility in the workplace, Faragher
noted that “simple teasing, offhand comments, and isolated incidents (unless extremely serious)”
do not rise to the requisite level of protection. Id.
{¶35} Although Ms. Jaber refers to “systematic treatment” by FirstMerit’s management,
she notes only a denial of time off in July 2011 and “a barrage of criticism.” She fails to
acknowledge, however, that she had requested time off with very little notice and was ultimately
allowed to take several days off. Moreover, she makes only a vague reference to “criticism.”
The record, however, contains multiple examples of ongoing customer service, security, and 16
work hours issues, to which Ms. Jaber admitted. Under these circumstances, this Court is not
persuaded to expand the current state of the law to recognize a claim for a violation of public
policy on the basis of bullying.
{¶36} Finally, even if we were to recognize such a claim, the evidence demonstrates that
FirstMerit had an overriding legitimate business justification for terminating Ms. Jaber based on
her admitted ongoing violations of company policies and procedures. Accordingly, the trial
court did not err in granting summary judgment in favor of the defendants on Ms. Jaber’s sixth
claim for relief. The fifth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED IN ORDERING SUMMARY JUDGMENT IN FAVOR OF INDIVIDUAL APPELLEES EHRICH, PERRY[,] AND O’BRIEN.
{¶37} Ms. Jaber argues that the trial court erred by granting summary judgment in favor
of Ms. Ehrich, Ms. Perry, and Ms. O’Brien on her claims. This Court disagrees.
{¶38} The parties agree that it is well settled that, for purposes of R.C. 4112.01
antidiscrimination claims, “individual supervisors and managers are accountable for their own
discriminatory conduct occurring in the workplace environment.” Genaro v. Cent. Transport,
Inc., 84 Ohio St.3d 293, 300 (1999); Price v. Carter Lumber Co., 9th Dist. Summit No. 24991,
2010-Ohio-4328, ¶ 25. The term “employer” includes “any person acting directly or indirectly in
the interest of an employer.” R.C. 4112.01(A)(2).
{¶39} As district manager, branch manager, and assistant branch manager, Ms. Ehrich,
Ms. O’Brien, and Ms. Perry, respectively, acted directly or indirectly in the interest of FirstMerit.
Ms. Jaber alleged that each engaged in discriminatory acts against her based on her age, national
origin, and perceived disability, that they retaliated against her for complaining about overtime
and a lack of time off, and that they violated public policy by harassing her in a way that 17
amounted to bullying. This Court has already declined to extend the current state of the law to
recognize a violation of public policy claim based on bullying.
{¶40} The prima facie elements for the remaining claims are set out above.
{¶41} Ms. Jaber’s retaliation claims against the individual managers fail. Her first claim
for relief alleged retaliation for complaining that she had not been paid for overtime she worked.
However, she presented no evidence in that regard and, in fact, the evidence demonstrated only
that she did not seek payment for overtime hours she had worked off the clock.
{¶42} Her other retaliation claim alleges only that her employer retaliated against her for
complaining that she had faced discrimination based on age, national origin, and perceived
disability. She argues on appeal, however, that the three managers retaliated against her, not for
complaining about age, national origin, or perceived disability discrimination, but rather for
disclosing that she had worked off the clock, for requesting time off, and for not completing her
work in a 40-hour work week. She described the retaliatory acts as depriving her of help,
shouting at her in public areas of the bank, and writing her up for infractions. It is axiomatic that
a plaintiff can only obtain relief based on claims she has actually alleged. The only time Ms.
Jaber raised the issue of discrimination was in her email to human resources officer Amanda
Pruett after she received notice that she had violated her LCM. Although she copied Ms. Ehrich
on the email, the only adverse employment action that occurred after her speculation regarding
discrimination was her termination. Neither Ms. Ehrich, Ms. O’Brien, nor Ms. Perry had any
involvement in the decision to terminate Ms. Jaber. None of those managers sat on the PRC
which was solely responsible for Ms. Jaber’s discharge. As Ms. Jaber presented no evidence that
any of the three managers engaged in any retaliatory conduct after she raised the issue of 18
discrimination, there was no genuine issue of material fact, and the three managers were entitled
to judgment as a matter of law on Ms. Jaber’s retaliation claims.
{¶43} As to the discrimination claims, as an initial matter, there is no evidence that Ms.
Perry subjected Ms. Jaber to any adverse employment action. Ms. Perry testified during her
deposition that she had no input into performance appraisals or disciplinary actions. She further
had no authority to terminate, and she did not recommend Ms. Jaber’s termination. Ms. Perry’s
signature is not on any disciplinary document in the record. Ms. Jaber has not presented any
evidence to show that Ms. Perry subjected her to any adverse employment action, such as
probation or other discipline, or played any role in her termination. Accordingly, Ms. Jaber
failed to establish a prima facie case of discrimination against Ms. Perry.
{¶44} Regarding her claims alleging discrimination based on age, national origin, and
perceived disability as against Ms. Ehrich and Ms. O’Brien, this Court assumes for the sake of
argument that the evidence demonstrated a genuine issue of material fact as to Ms. Jaber’s
establishment of her prima facie cases.
{¶45} The burden then shifts to the managers to present legitimate, nondiscriminatory
reasons for their adverse employment actions. Both Ms. Ehrich and Ms. O’Brien signed various
disciplinary documents regarding Ms. Jaber, although neither played any role in her ultimate
termination. In issuing a written warning (signed by both Ms. Ehrich and Ms. O’Brien),
memorandum of “Doc Discussion” (signed only by Ms. O’Brien), LCM (signed by Ms. Ehrich
and another person not named in this lawsuit), and a memorandum of violation of the LCM
(signed by Ms. Ehrich and a human resource officer not named in this lawsuit), Ms. Ehrich and
Ms. Perry thoroughly delineated the bases for each disciplinary action. The managers used
progressive discipline, even declining to escalate the adverse action when additional customer 19
service issues came to light very shortly after the issuance of the written warning. Instead of
notifying her of a violation of her 90-day probationary period and subjecting her to greater
adverse action, Ms. O’Brien chose to de-escalate the discipline, merely documenting her
discussion with Ms. Jaber about the additional concerns. As Ms. Jaber continued to disobey
directives and fail to follow through on customer service actions, management imposed harsher
disciplinary actions. Accordingly, Ms. Ehrich and Ms. O’Brien presented evidence of legitimate,
nondiscriminatory reasons for subjecting Ms. Jaber to discipline.
{¶46} Ms. Jaber failed to present evidence to rebut the evidence of legitimate,
nondiscriminatory reasons. Specifically, she admitted repeatedly that she continued to disobey
the directive not to work off the clock. Furthermore, she admitted to many instances when she
failed to follow through or follow up on some action necessary to complete customer
transactions. Although she zeroes in on two situations (a failure to obtain overdraft protection
for Mr. “W.,” and a failure to use the preferred file folders for a project), neither of those issues
resulted in the written disciplinary actions taken by management. First, Ms. Jaber only argues
that they “blamed” her for the situation with Mr. W., but she does not explain what type of
adverse employment action she suffered as a result.
{¶47} Second, she argues that the file folders incident resulted in a “write-up * * *
instrumental in showing that [she] was violating her last chance agreement [LCM].” A review of
the LCM indicates that it was premised on Ms. Jaber’s continuing disregard for the directive not
to work off the clock and to contact security when she enters the building when no one else is
present; and her failure, again, to ensure that her file cabinet containing confidential information
was locked. A review of the memorandum noting her violation of the LCM indicates that it was
premised on her continuing disregard for the directive not to work off the clock, as well as four 20
significant customer service issues, none of which involved any reference to the file folder
incident. Accordingly, Ms. Jaber failed to present evidence to rebut the managers’ evidence of
legitimate, nondiscriminatory reasons for their use of adverse employment actions against Ms.
Jaber.
{¶48} Although we need not address the issue of pretext based on Ms. Jaber’s failure to
present rebuttal evidence on the second prong of the McDonnell Douglas burden-shifting
analysis, we note that Ms. Jaber has also failed to present any evidence of pretext. She admitted
that she continued to disregard the directive not to work off the clock for months and after
repeated warnings. She further admitted to multiple instances of poor customer service based on
her failure to complete customer transactions. She challenges the significance of two incidents,
neither of which are referenced in her disciplinary documents, and she does not assert that the
remaining admitted deficiencies were insufficient to motivate the progressive disciplinary actions
used by management. Accordingly, she has failed to create a genuine issue of material fact with
regard to pretext.
{¶49} Based on the above discussion, there is no genuine issue of material fact as to the
individual managers’ liability. Accordingly, the trial court did not err by granting summary
judgment in favor of Ms. Ehrich, Ms. O’Brien, and Ms. Perry on all of Ms. Jaber’s claims. The
sixth assignment of error is overruled.
IV.
{¶50} Ms. Jaber’s six assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed. 21
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
MOORE, J. CONCURS.
HENSAL, J. CONCURS IN JUDGMENT ONLY.
APPEARANCES:
LINDA C. ASHAR, Attorney at Law, for Appellant.
WILLIAM S. HALBERG, Attorney at Law, for Appellant.
THOMAS R. CROOKES and ASHLEY M. MANFULL, Attorneys at Law, for Appellees.