Nance v. Lima Auto Mall, Inc.
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Opinion
[Cite as Nance v. Lima Auto Mall, Inc., 2020-Ohio-3419.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
ANGELINA NANCE, CASE NO. 1-19-54 PLAINTIFF-APPELLANT,
v.
LIMA AUTO MALL, INC., ET. AL, OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court Trial Court No. CV2018 0324
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: June 22, 2020
APPEARANCES:
Matthew G. Bruce for Appellant
J. Alan Smith for Appellees Case No. 1-19-54
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Angelina M. Nance (“Angelina”) appeals the
judgment of the Allen County Court of Common Pleas, alleging the trial court erred
in granting the defendants-appellees’ motion for summary judgment. For the
reasons set forth below, the judgment of the trial court is affirmed in part and
reversed in part.
Facts and Procedural History
{¶2} Angelina’s father, Henry Nance (“Henry”), worked as the manager of
the Detail Department at Lima Auto Mall, Inc. (“Lima Auto Mall”). Henry
Deposition, 7, 23. In 2015, a male detailer who worked for Henry at Lima Auto
Mall was terminated for insubordination. McClain Deposition, 15. Henry
Deposition, 25. Henry spoke to Rodger McClain (“McClain”), who was the vice
president and general manager at Lima Auto Mall, about hiring Angelina to fill this
vacant detailing position. McClain Deposition, 19, 23-24. Henry stated that
Angelina had previous experience at detailing vehicles and was a “really good
worker * * *.” Henry Deposition, 22, 25.
{¶3} Henry then offered Angelina a job as a detailer at the Lima Auto Mall.
Angelina Deposition, 26, 46. Angelina accepted this offer and was hired without
having been interviewed. Id. at 46. She began working a full-time job as a detailer
at Lima Auto Mall on May 8, 2015. Id. at 30, 57, 64. While Lima Auto Mall has
employed a number of women, Angelina was the only woman to have applied for a
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job in their detail department and was the first woman to work in the detail
department. Doc. 29, Ex. A. McClain Deposition, 34, 37.
{¶4} At the time that she was hired, there were around six employees under
Henry’s supervision in the detail department. McClain Deposition, 14. Henry
Deposition, 27. Of these six employees, there were three detailers, including
Angelina. Angelina Deposition, 55, 61. Henry Deposition, 27. For the duration of
her employment at Lima Auto Mall, Henry was Angelina’s direct supervisor.
Angelina Deposition, 64. Henry Deposition, 24.
{¶5} In his deposition, Henry stated that Angelina was “a hard worker” and
a “good detailer.” Henry Deposition, 9, 21. He also said that “she loved to run her
mouth” and indicated that she “disrespected” him at work. Id. at 9, 20, 38. He
testified that Angelina “would try to tell [him] how to do [his] job” and affirmed
that she would “sometimes” intimidate him. Id. at 10, 19. He further stated that
Angelina would, in front of the other employees, engage in “face to face” arguments
with him and would tell him that he did not know what he was doing. Id. at 38.
{¶6} He stated that “[s]he would get on her phone and look up stuff and tell
them, no, this is how you do it.” Henry Deposition, 38-39. He stated that he would
get complaints from other employees of Lima Auto Mall about Angelina’s various
comments, saying:
I have had complaints from other people, from salesmen, you know. And I was told many a time, if she wasn’t your daughter, I would tell her off real good, but I’m coming to you. And I says,
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I’ll handle it. And I would handle it. But it would be okay for a while and then back again. I just—just—just drove me nuts.
Id. at 14. He stated that he told Angelina, “[y]ou got to give respect to get respect.
And I says, * * * you got to learn, this is your job. * * * [Y]ou can’t go ahead and
just say, hey I’m not going to do it because my dad’s the boss. * * * You do your
job.” Id. at 16.
{¶7} Henry said that Angelina also spoke about politics and sports in the
detail shop. Henry Deposition, 10, 38. He testified that her political comments
“would upset some of the other guys” and that “she would go * * * on and on and
on.” Id. at 11. He said this “was making [him] so upset because these people are
here to work, not to listen to politics.” Id. Angelina was a “Green Bay Packer fan”
and that “[e]verybody else was worthless.” Id. at 12. Henry reported that
she would get some of these guys stirred up and, you know, there’s a lot of guys there that, you know, they have their own favorite teams, and she would go ahead and get them to where they were screaming. I would have to come out—and sometimes I wished I had a whistle to blow, to cut it, but I didn’t. I’d have to come out, stop my work completely, to tell her to go back to work; you guys go back to work. That’s the problem that I’ve had.
Id. at 13. On two occasions, he had to tell her that she could either “go back to work
or punch out and go home, cool off, then * * * come back.” Id.
{¶8} Henry stated that Angelina also talked about her family a great deal.
Henry Deposition, 34. He said,
Angie would go ahead and say, you know, my wife’s the best shopper, my wife is the best at this, my wife is the best at that. I
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said, Angie, we—we don’t care, you know, we have wives and girlfriends, too. I mean, you’re making us look like we have nothing at home. I says, if you would, you can go ahead and say that she’s good at this, good at that, but I said, don’t every day, every day.
It didn’t have nothing to do with being gay or anything. It just happened to be bragging too much.
Id. at 34. McClain had told Henry to tell Angelina to stop talking so much about
her wife, Vanessa Nance (“Vanessa”). Id. at 35.
{¶9} Henry stated that the other employees in the detail shop did not talk
about Angelina’s sexuality. Id. at 37. He did testify that Angelina would bring up
her lifestyle and would tell the others that they “don’t know what it’s like to be gay.”
Id. at 13. Henry further said that McClain was aware that Angelina was gay when
she was hired and that McClain had never made any comments about Angelina’s
sexual orientation. Id. at 33.
{¶10} In his deposition, McClain stated that he was aware that Angelina was
gay at the time she was hired and indicated that he was not aware of Angelina
“pushing her sexuality on anyone” at work. McClain Deposition, 16, 38. He also
said,
When she and her other half got married, she tended to want to talk more about the relationship, and everybody was complaining. You know, they get tired of hearing about it. And her son, this and that and the other. And I said something to Henry, to tell her to cool her jets about her personal life. And he did. And she got very, very on the defensive on that, towards me.
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Id. at 16. McClain also said that he never talked to Angelina about her lifestyle but
did say that Angelina’s comments about her wife and son did make him feel
uncomfortable. Id. at 44, 45.
{¶11} McClain said that “rather than being an employee, she created her dad
some headaches.” McClain Deposition, 10. He said that other employees would
complain to him about how Angelina “treated them” and the way that she talked to
Henry. Id. at 10-11. McClain said he would approach Henry about these issues,
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as Nance v. Lima Auto Mall, Inc., 2020-Ohio-3419.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
ANGELINA NANCE, CASE NO. 1-19-54 PLAINTIFF-APPELLANT,
v.
LIMA AUTO MALL, INC., ET. AL, OPINION
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court Trial Court No. CV2018 0324
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: June 22, 2020
APPEARANCES:
Matthew G. Bruce for Appellant
J. Alan Smith for Appellees Case No. 1-19-54
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Angelina M. Nance (“Angelina”) appeals the
judgment of the Allen County Court of Common Pleas, alleging the trial court erred
in granting the defendants-appellees’ motion for summary judgment. For the
reasons set forth below, the judgment of the trial court is affirmed in part and
reversed in part.
Facts and Procedural History
{¶2} Angelina’s father, Henry Nance (“Henry”), worked as the manager of
the Detail Department at Lima Auto Mall, Inc. (“Lima Auto Mall”). Henry
Deposition, 7, 23. In 2015, a male detailer who worked for Henry at Lima Auto
Mall was terminated for insubordination. McClain Deposition, 15. Henry
Deposition, 25. Henry spoke to Rodger McClain (“McClain”), who was the vice
president and general manager at Lima Auto Mall, about hiring Angelina to fill this
vacant detailing position. McClain Deposition, 19, 23-24. Henry stated that
Angelina had previous experience at detailing vehicles and was a “really good
worker * * *.” Henry Deposition, 22, 25.
{¶3} Henry then offered Angelina a job as a detailer at the Lima Auto Mall.
Angelina Deposition, 26, 46. Angelina accepted this offer and was hired without
having been interviewed. Id. at 46. She began working a full-time job as a detailer
at Lima Auto Mall on May 8, 2015. Id. at 30, 57, 64. While Lima Auto Mall has
employed a number of women, Angelina was the only woman to have applied for a
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job in their detail department and was the first woman to work in the detail
department. Doc. 29, Ex. A. McClain Deposition, 34, 37.
{¶4} At the time that she was hired, there were around six employees under
Henry’s supervision in the detail department. McClain Deposition, 14. Henry
Deposition, 27. Of these six employees, there were three detailers, including
Angelina. Angelina Deposition, 55, 61. Henry Deposition, 27. For the duration of
her employment at Lima Auto Mall, Henry was Angelina’s direct supervisor.
Angelina Deposition, 64. Henry Deposition, 24.
{¶5} In his deposition, Henry stated that Angelina was “a hard worker” and
a “good detailer.” Henry Deposition, 9, 21. He also said that “she loved to run her
mouth” and indicated that she “disrespected” him at work. Id. at 9, 20, 38. He
testified that Angelina “would try to tell [him] how to do [his] job” and affirmed
that she would “sometimes” intimidate him. Id. at 10, 19. He further stated that
Angelina would, in front of the other employees, engage in “face to face” arguments
with him and would tell him that he did not know what he was doing. Id. at 38.
{¶6} He stated that “[s]he would get on her phone and look up stuff and tell
them, no, this is how you do it.” Henry Deposition, 38-39. He stated that he would
get complaints from other employees of Lima Auto Mall about Angelina’s various
comments, saying:
I have had complaints from other people, from salesmen, you know. And I was told many a time, if she wasn’t your daughter, I would tell her off real good, but I’m coming to you. And I says,
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I’ll handle it. And I would handle it. But it would be okay for a while and then back again. I just—just—just drove me nuts.
Id. at 14. He stated that he told Angelina, “[y]ou got to give respect to get respect.
And I says, * * * you got to learn, this is your job. * * * [Y]ou can’t go ahead and
just say, hey I’m not going to do it because my dad’s the boss. * * * You do your
job.” Id. at 16.
{¶7} Henry said that Angelina also spoke about politics and sports in the
detail shop. Henry Deposition, 10, 38. He testified that her political comments
“would upset some of the other guys” and that “she would go * * * on and on and
on.” Id. at 11. He said this “was making [him] so upset because these people are
here to work, not to listen to politics.” Id. Angelina was a “Green Bay Packer fan”
and that “[e]verybody else was worthless.” Id. at 12. Henry reported that
she would get some of these guys stirred up and, you know, there’s a lot of guys there that, you know, they have their own favorite teams, and she would go ahead and get them to where they were screaming. I would have to come out—and sometimes I wished I had a whistle to blow, to cut it, but I didn’t. I’d have to come out, stop my work completely, to tell her to go back to work; you guys go back to work. That’s the problem that I’ve had.
Id. at 13. On two occasions, he had to tell her that she could either “go back to work
or punch out and go home, cool off, then * * * come back.” Id.
{¶8} Henry stated that Angelina also talked about her family a great deal.
Henry Deposition, 34. He said,
Angie would go ahead and say, you know, my wife’s the best shopper, my wife is the best at this, my wife is the best at that. I
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said, Angie, we—we don’t care, you know, we have wives and girlfriends, too. I mean, you’re making us look like we have nothing at home. I says, if you would, you can go ahead and say that she’s good at this, good at that, but I said, don’t every day, every day.
It didn’t have nothing to do with being gay or anything. It just happened to be bragging too much.
Id. at 34. McClain had told Henry to tell Angelina to stop talking so much about
her wife, Vanessa Nance (“Vanessa”). Id. at 35.
{¶9} Henry stated that the other employees in the detail shop did not talk
about Angelina’s sexuality. Id. at 37. He did testify that Angelina would bring up
her lifestyle and would tell the others that they “don’t know what it’s like to be gay.”
Id. at 13. Henry further said that McClain was aware that Angelina was gay when
she was hired and that McClain had never made any comments about Angelina’s
sexual orientation. Id. at 33.
{¶10} In his deposition, McClain stated that he was aware that Angelina was
gay at the time she was hired and indicated that he was not aware of Angelina
“pushing her sexuality on anyone” at work. McClain Deposition, 16, 38. He also
said,
When she and her other half got married, she tended to want to talk more about the relationship, and everybody was complaining. You know, they get tired of hearing about it. And her son, this and that and the other. And I said something to Henry, to tell her to cool her jets about her personal life. And he did. And she got very, very on the defensive on that, towards me.
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Id. at 16. McClain also said that he never talked to Angelina about her lifestyle but
did say that Angelina’s comments about her wife and son did make him feel
uncomfortable. Id. at 44, 45.
{¶11} McClain said that “rather than being an employee, she created her dad
some headaches.” McClain Deposition, 10. He said that other employees would
complain to him about how Angelina “treated them” and the way that she talked to
Henry. Id. at 10-11. McClain said he would approach Henry about these issues,
saying “Henry, you got to do something about this * * *. He’d say I’ll talk to her.”
Id. at 10. One of the other detailers told McClain that Angelina was “was always
showing him how to do” his job. Id. at 12. Angelina told McClain that “[s]he was
trying to help [her coworker] * * *.” Id.
{¶12} McClain further testified that he “heard a lot about politics, back
there” and that Angelina would “even come after [him] on politics.” McClain
Deposition, 15. He said,
Just * * * it got to be on everybody’s nerve, listening to her yab- jab. She talked too much. She’s got a mouth. And don’t disagree with her, because the argument is on. And she won’t let loose. And if you corner her, she’ll get really hatey. She can get really nasty.
Id. at 43. He further said that Angelina was “stirring the pot” in the detail shop and
described a confrontation between her and Henry at work. Id. at 47.
{¶13} In her deposition, Angelina stated that, in the detail department, they
“all argued” and that they argued “every day.” Angelina Deposition, 73, 203. She
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testified that, more than arguing, they “bantered every day. It was like, hey, did you
see this team? Hey, they sucked * * *.” Id. at 203. She also said that everyone
talked about politics in the shop and that she did not impose her views on any of her
coworkers any more than they imposed their views on her. Id. She stated that she
argued with her father about “petty stuff” but that she did not argue with him about
the “actual job.” Id. at 73. She also said that she “always” argued with another one
of her coworkers in the detail shop about sports and politics. Id. at 74.
{¶14} When asked about how those she worked with addressed her lifestyle,
Angelina stated that Henry once, in 2017, expressed displeasure over the fact that
someone else was gay. Angelina Deposition, 76. However, Angelina said that
Henry “embraced” and “accepted” the fact that she was gay. Id. 76-77. She said
that Henry had told her to stop referring to Vanessa as her wife around McClain
because this made McClain and others at work feel uncomfortable. Id. at 80. In
response to this request, Angelina stopped referring to Vanessa as her wife. Id. at
83-84. She agreed that, aside from this “isolated incident,” there was “no other
expression of dislike or displeasure” with her lifestyle at Lima Auto Mall. Id. at 80.
Angelina indicated that she did not talk “a lot” about her lifestyle with her coworkers
and that she did not impose her views about her lifestyle on others. Id. at 204.
{¶15} When asked whether she was treated differently on the basis of her
gender, Angelina replied by saying, “I believe the way that I received my raises and
I just feel like I was treated differently than my male counterparts.” Angelina
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Deposition, 197. She believed that she was, in this way, discriminated against
because she was female but also said that she did not know whether she was
discriminated against, in this matter, because she was gay. Id. at 198. McClain
affirmed that “[i]t was unusual for employees to request a raise because [he] usually
evaluate[d] wages once a year and not at the request of employees.” Doc. 29, Ex.
A. He further stated that, in response to her request, he did give her a raise. Doc.
29, Ex. A.
{¶16} Angelina further stated that she believed the way that overtime was
divided was discriminatory. Angelina Deposition, 200. She indicated that
historically one detailer would receive all of the overtime. Id. at 199. Angelina said
that, at one point, she worked out a system with another detailer in which they split
the overtime. Id. at 200. However, after a new detailer was hired, Angelina’s
employer allowed this new employee to have one third of the overtime. Id. When
Angelina asked McClain why this employee had a share of the overtime, McClain
replied that the new employee had “a family too.” Id. at 200. Angelina stated that
it was “like mine [her family] is less important.” Id.
{¶17} McClain stated that there were three detailers and that the overtime
was evenly split between these three employees. Doc. 29, Ex. A. Further, Henry
testified that he made an overtime schedule for the detailers but that Angelina
decided to make her own schedule for the others to follow. Henry Deposition, 58.
He said that Angelina
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marked off, what days she wanted to work. And it was kind of unfair, but I let her do it, because, you know, she needed the extra money. Well, she made up her own and she started to—she went ahead and told Dennis she wanted him to work all the Saturdays, she would work the Mondays and Thursdays. Well, that’s not exactly fair, you know.
Id. at 59. Henry stated that the three detailers argued about the overtime schedule
but eventually agreed on the overtime split. Id.
{¶18} On December 13, 2017, Angelina reported to her father that she had
been injured while working that morning. Angelina Deposition, 88, 149. She stated
that her vacuum got stuck under the seat of a car. Id. at 109. As she was trying to
pull the vacuum free, she “felt * * * a popping in [her] shoulder, and then * * * had
a sharp pain that went down into [her] shoulder blade.” Id. at 109. No one witnessed
Angelina get injured at work. Id. at 110. Angelina stated that Henry told her not to
file a workers’ compensation claim. Id. at 152.
{¶19} However, Henry stated that neither he nor McClain told Angelina not
to file a workers’ compensation claim. Henry Deposition, 62. In an affidavit, Henry
stated the following:
I never told Angie not to file a workers’ compensation claim. I told her if she wanted to file a workers’ compensation claim, then file it. If she wanted to go to the hospital and have her medical bills taken care of, then the company would pay them for her and she didn’t have to file a workers’ compensation claim. That’s the choice that everyone at Lima Auto Mall can make—the company will pay your bills, but if you want to file a workers’ compensation claim then you can file it. Other employees at Lima Auto Mall have filed workers’ compensation claims. For example, Jeff
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McDaniel filed a workers’ compensation claim for a back injury. He still works at Lima Auto Mall.
Doc. 29, Ex. B. McClain, in his deposition, stated that he told Henry to tell Angelina
“we’ll pay to have it looked at; you know, don’t file workman’s comp, I’ll pay to
have it taken care of.” McClain Deposition, 59.
{¶20} After she informed her father of her injury, Vanessa picked Angelina
up from work and took her to get medical attention. Id. at 149. She first went to
Urgent Care where she reported that she injured her shoulder while reaching for
something in a cabinet at her home. Id. at 150. Ex. F. When asked why she said
her injury occurred at home, Angelina stated that she was told by Henry not to report
a workplace injury and that, for this reason, she lied. Id. The doctor at Urgent Care
issued her a work excuse that stated the following restriction: “No work 12/13-
12/14/17 due to injury.” Ex. M. See Ex. F.
{¶21} Angelina then went to see Dr. Ana Pere (“Dr. Pere”), who was her
family doctor. Ex. H. Angelina Deposition, 194. Angelina also told Dr. Pere that
she injured her arm while reaching for something above her head. Ex. H. Angelina
Deposition, 177, 181. She further reported that she had been experiencing “shoulder
pain off and on for the last several months.” Ex. H. Dr. Pere gave Angelina a note
that stated she could return to work on December 18, 2017. Ex. M.
{¶22} On December 14, 2017, Angelina went to the Orthopaedic Institute of
Ohio (“OIO”). Ex. G. Dr. Mark McDonald (“Dr. McDonald”) provided her with a
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work slip that stated Angelina could “work with [her] left hand only. [N]o right
hand buffing or lifting until f[ollow] up with us.” Ex. M. Her follow up
appointment was to occur two weeks after her initial appointment at OIO. Ex. G.
She stated that she “actually had to con the doctor into letting me do light duty
because I told him my dad was my manager and that he would make sure I didn’t
do anything * * * to irritate my shoulder.” Angelina Deposition, 142.
{¶23} Angelina then brought these doctor’s notes to McClain at Lima Auto
Mall. Angelina Deposition, 195. She stated the following about this interaction:
I gave Rodger the paper; and he kind of snickered and said, I wouldn’t hire a one-armed man, let alone a one-armed woman. What am I supposed to do with someone with one arm?
And I said, so what you’re saying is—and he said, you need to just get completely taken off, I don’t have anything for you to do.
Id. at 142. She also stated that McClain told her “to go ahead and get taken off
work.” Id. at 195.
{¶24} When asked whether he said he “would never hire a one-armed man,
let alone a one-armed woman,” McClain said,
Yeah, I probably said—as a joke. I mean, sitting there laughing, say, Angie, I wouldn’t hire a one-armed man to buff a car, I can’t. That’s just a slang comment. I mean, I didn’t have any meanness to it, in any way. But, I mean, more of a job, if I said it.
McClain Deposition, 67. In his affidavit, McClain admitted the following: “I made
a joke while laughing that I wouldn’t hire a one-armed person, which I did not intend
to be mean, but as a joke.” Doc. 29, Ex. A. He further stated that he “did not have
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any light duty available for her” at the time that she brought in her doctor’s note.
Doc. 29, Ex. A.
{¶25} McClain stated that, after his conversation with Angelina—“might
have been the next day,” Henry came to him and talked about what Angelina could
do in the detail department. McClain Deposition, 66. McClain told Henry that
Angelina could work as a cleaner but that he “was not paying her what [he was]
paying her to buff cars.” Id. McClain stated that Henry offered Angelina this light
duty position but that Angelina refused this offer. Id. at 62, 64, 68. He stated that,
when Henry made this offer to Angelina, some of the other employees left the detail
shop, came to McClain, and informed him that Angelina was “on her dad like you
wouldn’t believe.” Id. at 68-69.
{¶26} Henry testified that he spoke with McClain, who approved of allowing
Angelina to work as a cleaner instead of as a detailer. Henry Deposition, 45. At
some point, Henry called Angelina on the phone while he was at home to discuss
whether she would consider light duty. Id. at 41, 47. He testified about the ensuing
conversation with her as follows:
I says, I’m not bringing you back on detailing. I can’t—I don’t want to injure your shoulder. And I says, you know—and that’s the way I feel.
I can give you some light duty, to where you can still make some money. Well—and I did this on the phone. Okay. And she ripped me from one end to the other. And my wife is sitting there and she says, what is going on? And she could hear her. And I said, I offered her to come back light duty, not detailing, because of her
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shoulder, her injury; she told me, she wasn’t coming back. She said, I’m not coming back, I’m taking my time off, and that’s the way it is.
I said, Angie, so you’re refusing a position that’s not going to bother your shoulder or nothing, to where you can earn some money? Because she complained that she wasn’t getting no money, because, you know, she was at home, she wasn’t working.
And I told her, you know, if you’re going to refuse me, then, you know, that’s up to you. But we got into it. We didn’t talk for a while. And then all the sudden, she just pops up and wants to come back to work. And we don’t run a business like that * * *.
Henry Deposition, 41-42. He also stated that she would have gotten the same
amount of pay working as a cleaner. Id. at 45-46.
{¶27} Angelina testified that Henry called to tell her that they were able to
find some light duty work for her to do. Angelina Deposition, 135. She stated that
she was “happy to come back” and was “willing to do whatever * * *.” Id. at 136.
She told Henry that she had been in the process of working with OIO to get the
proper paperwork submitted for her short-term disability since McClain had
previously told her that she should be off from work. Id. at 98-99, 136. She also
said that the personnel manager at Lima Auto Mall wanted a medical release from
her doctor before she could work. Id. at 98. Angelina stated that she tried to explain
this to Henry but that he was not listening. Id. at 98-99, 136.
{¶28} Angelina stated that she hung up on Henry and that he then left her an
angry voicemail in which he stated the following: “If either one of you ever f***
with me again and say s*** you did, I will f***ing beat you’re a**es. You got that?
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You f***ing dumb a**es.” Angelina Deposition, 135. When asked whether it was
appropriate to threaten an employee, Henry replied by saying, “No.” Henry
Deposition, 48. When asked whether it was appropriate to threaten his daughter,
Henry stated that “if you know what she said to me, yes. Yes.” Id. He also said,
“You didn’t hear what’s on this side, why I threatened. You guys only heard that
side, of me yelling.” Id. at 46.
{¶29} On December 19, 2017, Henry filled out an employee warning notice
for Angelina because she did not return to work on December 18, 2017. Ex. L. The
document stated that Angelina was “called * * * to come back for light duty work”
but noted that she did not return. Ex. L. The report further stated that Angelina had
wanted to work in the office but that no work was available for her there. Ex. L.
Henry testified that he showed this document to Angelina and that she had refused
to sign this notice. Henry Deposition, 40-41. Angelina testified that she never saw
this employee warning notice. Angelina Deposition, 192.
{¶30} On December 29, 2017, Angelina returned to OIO for her follow up
appointment. Ex. G. Her medical records indicate that she should be “off another
two weeks and then she [would be] able to return to work full duty, no restrictions
at that time.” Ex. G. On the date of her follow up appointment, OIO issued a work
slip that stated Angelina should be “off work until 1.15.18, return to work full duty
no restrictions.” Ex. 1. When shown a copy of this work slip, Henry stated that he
was not aware of this document and did not know when Angelina was going to
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return to work. Henry Deposition, 53. McClain testified he remembered seeing this
work slip before his deposition but could not recall when he first saw this document.
McClain Deposition, 64.
{¶31} McClain testified that Angelina filed for short term disability and that
Lima Auto Mall’s insurer paid her short term disability benefits. McClain
Deposition, 60. He then stated that Angelina
was told to come back to work—they told her to come back. She decided not to come back, she decided to take two more weeks of therapy. And even our insurance company called and said, is she back to work today? Because they were paying her disability. And I was there when [the personnel manager] said, they just called and I told them, no, she didn’t show up.
She’s off of disability, but she didn’t come back. And upon herself, decided to take two more weeks of therapy.
In the meantime, Henry and I talked about how’s it going in back, there, without her. He says, it’s been very peaceful, it’s been very good and we’re getting along fine. I said, fine, I need to cut. When she comes back, I’m going to lay her off; you can’t do it, I’m going to handle it.
Id. at 61.
{¶32} On January 15, 2018, Angelina returned to work at Lima Auto Mall.
Angelina Deposition, 196. At this point, she did not have any medical restrictions
as to her activities and had not worked at Lima Auto Mall since her injury on
December 13, 2017. Id. at 130, 196. After Angelina arrived, Henry, on McClain’s
request, sent her to McClain’s office. Henry Deposition, 66. At the meeting in
McClain’s office, McClain informed Angelina that her position at Lima Auto Mall
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was being terminated as of that date. Henry Deposition, 66. McClain Deposition,
77. Angelina Deposition, 132. Ex. 2. Only Angelina and McClain were present at
this meeting in McClain’s office. McClain Deposition, 77. Angelina Deposition,
129.
{¶33} In her deposition, Angelina testified that the “gist” of what McClain
told her in this meeting was as follows:
[H]e said, unfortunately, I have to let you go. He said, at this point you’re a liability to our company with that shoulder being as bad as it is. My wife had the same shoulder injury. It’s probably not going to heal, and basically I’m doing you a favor. * * * [H]e said I will make sure you get unemployment.
Angelina Deposition, 132. Angelina also said that McClain indicated that “he felt
like [her] injury was really bad, his wife had experienced the same thing, and he just
didn’t feel like [she] was going to heal * * *.” Angelina Deposition, 129.
{¶34} Regarding the meeting in which he laid off Angelina, McClain said
that he did remember telling Angelina about his wife’s rotator cuff surgery.
McClain Deposition, 78. However, he could not recall whether he told Angelina
that she was a liability to the company. Id. McClain stated that Angelina’s injury
did not have any impact on his decision to terminate her. Id. at 78. He also said
that she was qualified for this position and good at her job. Id. at 24. He testified
that Angelina was terminated because business had “slowed down” and because he
“need[ed] to lighten up the employees back there.” Id. at 77. To support this claim,
McClain pointed to the fact that he had opted not to fill the position of another
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detailer who had left the company several weeks after Angelina was terminated. Id.
at 83.
{¶35} McClain indicated that there were somewhere in between six and eight
employees in the detail department when Angelina was hired. McClain Deposition,
13-14. He then said that, by the time of the deposition, there were around three and
a half positions, not counting Henry’s job, in the department. Id. at 14. He also
stated that Lima Auto Mall had been cutting positions “to make ends meet” and
“tightening up the budget, so [they] can stay in business.” Id. at 19. In 2009, Lima
Auto Mall had between 120 and 130 employees. Id. This number had been reduced
to in between roughly sixty and sixty-five employees. Id. at 18. He further testified
that Lima Auto Mall used to have eight franchises but only had two at the time of
this litigation. Id. at 13. Doc. 29, Ex. A.
{¶36} Lima Auto Mall stated, in its response to the Ohio Department of Job
and Family Services request for separation information, that the final event that
caused her discharge was that she “had been on disability from 12-13-17 and was
to report back 1-15-18. When she return [sic], things had slowed down plus she had
injured her shoulder and we did not want any more injuries to her.” Ex. 3. When
asked what this response meant, McClain said, “I didn’t want her to get hurt again,
doing her job. She got hurt doing the job. I didn’t want her to get hurt, doing the
job, again. Plus, we had slowed down, we didn’t need her.” McClain Deposition,
82.
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{¶37} McClain was then asked about Lima Auto Mall’s response to
Angelina’s seventh interrogatory, which inquired into the reason that she was
terminated. McClain Deposition, 84. Lima Auto Mall stated, in part, that Angelina
was terminated for “insubordination.” Id. McClain stated that insubordination “was
part of it.” He further said, “I have explained * * * how she was to her father, her
boss, and to other people back there. Over—basically, overriding her father, as a
manager, she was insubordinate. And we slowed down.” Id. at 85.
{¶38} He stated that he never formally reprimanded Angelina and would
instead talk to Henry, who was her supervisor and father. McClain Deposition, 86.
He stated that it was a “unique situation” as Henry was Angelina’s father and
supervisor. Id. at 87. For this reason, McClain was unsure of how Henry handled
disciplinary issues with Angelina, though McClain was not aware of any formal
reprimands for insubordination. Id. Henry testified that he never gave Angelina
formal evaluations for her performance. Henry Deposition, 32. He also said that
he did not formally discipline Angelina but, “[a]s a manager” would give her a
“fatherly threat” that he would “send [her] home.” Id. at 40. Henry stated that,
since Angelina left, the detail shop has been “peaceful. Nobody is arguing with
nobody.” Id. at 39.
{¶39} On January 26, 2018, after she had been terminated and had met with
her attorney, Angelina decided to file a workers’ compensation claim. Angelina
Deposition, 105. Ex. D. McClain stated that Lima Auto Mall fought Angelina’s
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worker’s compensation claim. McClain Deposition, 72. While McClain could not
remember the specific reason that the company fought this claim, he stated the
following at his deposition: “I don’t think she deserved workers’ comp, to be honest
with you. I paid the bills and she was released to come back to work with no
problems.” Id. 71-72.
{¶40} On July 13, 2018, Angelina filed a complaint with the trial court,
naming Lima Auto Mall, Inc. and McClain as defendants. Doc. 1. This complaint
listed the following claims: workers’ compensation retaliation, wrongful
termination in violation of public policy, gender or sex discrimination, wrongful
termination based on gender discrimination, disability discrimination or perceived
disability discrimination, wrongful termination based on disability discrimination,
and intentional infliction of emotional distress. Doc. 1. The defendants filed a
motion for summary judgment on May 1, 2019. Doc. 29. On June 28, 2019,
Angelina filed a brief in opposition to the defendants’ motion for summary
judgment. Doc. 38. On August 14, 2019, the trial court granted the defendants’
motion for summary judgment. Doc. 43.
{¶41} The appellant filed her notice of appeal on September 11, 2019. Doc.
45. On appeal, Angelina raises the following assignments of error:
First Assignment of Error
The trial court erred when it granted summary judgment to defendants on plaintiff’s claim of wrongful termination in violation of public policy.
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Second Assignment of Error
The trial court erred when it granted summary judgment to defendants on plaintiff’s claim of gender/sex discrimination. Third Assignment of Error
Appellees were not entitled to summary judgment on appellant’s sexual orientation discrimination claims.
Fourth Assignment of Error
The trial court erred when it granted summary judgment to defendants on plaintiff’s claim of disability discrimination.
We will first set forth the legal standard governing motions for summary judgment
before we proceed to examine each of Angelina’s assignments of error.
Legal Standard for Summary Judgment
{¶42} Under the Ohio Rule of Civil Procedure 56(C), a trial court may grant
a motion for summary judgment when
(1) [n]o 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.
M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 68, 2012-Ohio-5336, 979 N.E.2d 1261,
¶ 12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267
(1977), citing Civ.R. 56(C).
“The party moving for summary judgment has the initial burden ‘to inform the trial court of the basis for the motion, identifying
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the portions of the record, including the pleadings and discovery, which demonstrate the absence of a genuine issue of material fact.’” Middleton v. Holbrook, 3d Dist. Marion No. 9-15-47, 2016- Ohio-3387, 2016 WL 3223956, ¶ 8, quoting Reinbolt v. Gloor, 146 Ohio App.3d 661, 664, 767 N.E.2d 1197 (3d Dist.2001).
Williams v. ALPLA, Inc., 2017-Ohio-4217, 92 N.E.3d 256 (3d Dist.).
‘The burden then shifts to the party opposing the summary judgment.’ “In order to defeat summary judgment, the nonmoving party may not rely on mere denials but ‘must set forth specific facts showing that there is a genuine issue for trial.’”
(Citations omitted.) Bates Recycling, Inc. v. Conaway, 2018-Ohio-5056, 126
N.E.3d 341, ¶ 10-11 (3d Dist.), quoting Byrd v. Smith, 110 Ohio St.3d 24, 2006-
Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).
{¶43} Appellate courts consider a summary judgment order under a de novo
standard of review. James B. Nutter & Co. v. Estate of Neifer, 3d Dist. Hancock
No. 5-16-20, 2016-Ohio-7641, ¶ 5. “[B]ecause summary judgment is a procedural
device to terminate litigation, it must be awarded with caution.” Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992). For this reason,
on appeal, “[t]he nonmoving party * * * receives the benefit of all favorable
inferences when evidence is reviewed for the existence of genuine issues of material
facts.” Ditech Financial, LLC v. Akers, 3d Dist. Union No. 14-18-02, 2018-Ohio-
2874, quoting Byrd at ¶ 10.
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{¶44} Angelina argues that the appellees were not entitled to summary
judgment on her wrongful termination in violation of public policy claim.
Legal Standard
{¶45} “In Ohio, the common-law doctrine of employment at will governs
employment relationships. The act of terminating an at-will employee’s
relationship with an employer usually does not give rise to an action for damages.”
Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825,
¶ 11. Generally, “absent an employment contract, an employee is at will and may
be terminated at anytime for any lawful reason or for no reason at all.” Alexander
v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 95727, 2012-Ohio-1737, ¶ 20.
{¶46} However, there is “an exception to the employment-at-will doctrine
that applies when an at-will employee is discharged or disciplined for reasons that
contravene clear public policy expressed by the legislature in its statutes.” Sutton
v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938,
¶ 8. Under this exception, the common law doctrine of employment at will “yield[s]
when it contravenes the public policy as established by the General Assembly in
R.C. 4123.90.” Id.
{¶47} Under this exception, an action for wrongful discharge in violation of
public policy exists where a plaintiff establishes the following:
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(1) a clear public policy exists and is manifested in a state or federal constitution, in statute or administrative regulation, or in the common law (the clarity element), (2) dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element), (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element), and (4) the employer lacked an overriding legitimate business justification for the dismissal (the overriding-justification element). Collins v. Rizkana (1995), 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653. The clarity and jeopardy elements involve questions of law; the causation and overriding-justification elements involve questions of fact. Id. at 70.
Sutton at ¶ 9. R.C. 4123.90 reads as follows:
No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.
R.C. 4123.90. After examining this statutory provision, the Supreme Court of Ohio
held that there is
a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after an injury but before he or she files, institutes, or pursues a workers’ compensation claim.
Id. at ¶ 37. Thus, “Sutton creates a very limited exception to the at-will employment
doctrine for injured employees who suffer retaliation prior to instituting or pursuing
a workers’ compensation claim.” Arnett v. Precision Strip, Inc., 2012-Ohio-2693,
972 N.E.2d 168, ¶ 19 (3d Dist.), quoting Rose v. CTL Aerospace, Inc., 12th Dist.
No. CA2011-09-171, 2012-Ohio-1596, ¶ 16.
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{¶48} Courts have used a burden shifting framework in analyzing the
causation and overriding-justification elements of a wrongful termination in
violation of public policy claim. White v. Simpson Industries, Inc., 1 Fed.Appx.
462, 468 (6th Cir. 2001); Hall v. ITT Automotive, 362 F.Supp.2d 952, 963 (N.D.
Ohio 2005); Kittle v. Cynocom Corp., 232 F.Supp.2d 867, 874-875, (S.D. Ohio
2002); Whitaker v. First Energy Nuclear Operating Co., 6th Dist. Ottawa No. OT-
12-021, 2013-Ohio-3856, ¶ 31; Sells v. Holiday Mgt. Ltd., 10th Dist. Franklin No.
11AP-205, 2011-Ohio-5974, ¶ 39.
{¶49} Under this framework, if the plaintiff establishes some evidence of
causation, the employer is to “offer[] evidence of an overriding business
justification for [the employee’s] termination.” Putney v. Contract Bldg.
Components, 3d Dist. Union No. 14-09-21, 2009-Ohio-6718, ¶ 70. In response, the
plaintiff must identify or “produce evidence that the [employer] lacked such
justification.” Id. (implicitly applying this burden shifting framework to a wrongful
termination in violation of public policy claim).
{¶50} “To establish causation, a plaintiff who alleges wrongful discharge in
violation of public policy as expressed in R.C. 4123.90 must prove that the adverse
employment action was retaliatory * * *.” Sutton, supra, at ¶ 37. “[N]o
presumption of retaliation arises from the fact that an employee is discharged soon
after an injury.” Id. at ¶ 10. Rather, “the law requires the plaintiff to show
purposeful retaliation; that is, a specific intent to discharge an employee for
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engaging in the protected act of filing a workers’ compensation claim.” (Emphasis
sic.) Glenn v. Hose Master, L.L.C., 2016-Ohio-1124, 61 N.E.3d 609, ¶ 11 (8th
Dist.). Thus, a plaintiff must prove, by a preponderance of the evidence, that there
was “a nexus between the adverse employment action and the potential workers’
compensation claim.” Sutton, supra, at ¶ 10, 37.
{¶51} “To establish the overriding-justification element, [the plaintiff] must
prove that [the employer] lacked an overriding business justification for firing him
[or her].” Sutton, supra, at ¶ 10. If the employer produces evidence that it had an
overriding, legitimate business justification for the employee’s termination, then the
plaintiff may demonstrate a genuine issue of material fact exists as to this element
by identifying evidence that the purported overriding, legitimate business
justifications were pretextual. Sells, supra, at ¶ 22.
{¶52} While the causation and overriding-justification elements of this claim
are questions of fact,
‘courts routinely grant summary judgment when the plaintiff fails to raise an issue of material fact with respect to either element.’ Kirk v. Shaw Environmental, Inc. (May 25, 2010), N.D. Ohio No. 1:09-CV-1405 [2010 WL 1387887. ‘[U]pon the movant’s showing the lack of causation and the existence of overriding justification through depositions, the [plaintiff] has the reciprocal burden to demonstrate causation and the lack of an overriding justification’ to avoid summary judgment. Barnes v. Cadiz, 7th Dist. No. 01 531 CA, 2002-Ohio-1534, ¶ 15.
Sells, supra, at ¶ 39.
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Legal Analysis
{¶53} Angelina argues that her claim of wrongful termination in violation of
public policy fits within the exception that the Ohio Supreme Court delineated in
Sutton. Sutton, supra, at ¶ 37. Since Angelina relies upon the Sutton analysis to
satisfy the questions of law raised by the clarity element and the jeopardy element,
our analysis will be limited to whether she has identified genuine issues of material
fact that exist for trial regarding the causation and overriding-justification elements
of the public policy exception test. See Id. at ¶ 28.
{¶54} To substantiate the causation element, Angelina first argues that her
employer instructed her not to file a workers’ compensation claim and told her not
to report a workplace injury. Angelina Deposition, 146. In his deposition, Henry
denied telling Angelina not to file a workers’ compensation claim and also stated
that McClain did not tell Angelina that she should not file a workers’ compensation
claim. Henry Deposition, 62. Henry said,
I told her if she wanted to file a workers’ comp, file it; if you want to just go to the hospital, get it done, taken care of, our company would pay for it, regardless. Regardless, it would be paid for.
***
You got your choice. You can file it or you can go and get it done. I’ve done it many a time. They paid my bill without filing workers’ comp.
Id. at 61-63. In an affidavit, Henry stated the following:
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I never told Angelina not to file a workers’ compensation claim. I told her if she wanted to file a workers’ compensation claim, then file it. If she wanted to just go to the hospital and have her medical bills taken care of, then the company would pay for her and she didn’t have to file a workers’ compensation claim. That’s the choice that everyone at Lima Auto Mall can make—the company will pay your bills, but if you want to file a workers’ compensation claim then you can file it. Other employees at Lima Auto Mall have filed workers’ compensation claims. For example, Jeff McDaniel filed a workers’ compensation claim for a back injury. He still works at Lima Auto Mall.
Doc. 29, Ex. B. In his deposition, however, McClain testified: “I said, don’t file a
workman’s comp, I’ll pay for whatever it takes, the hospital bill. Which I do that to
all employees. I was advised to do that by workman’s comp, when I went to
meetings in Columbus, at OADA [Ohio Automobile Dealers Association].”
McClain Deposition, 68. McClain then stated that Lima Auto Mall had paid for
Angelina’s medical bills. Id. at 70-71.
{¶55} While there is a dispute about whether Henry told Angelina not to file
a workers’ compensation claim, Angelina does not dispute that Henry indicated to
her that Lima Auto Mall would cover the costs of her medical bills in the event that
she did not file a workers’ compensation claim. Angelina Deposition, 146. Further,
Angelina does not contend that Lima Auto Mall did not pay for her medical bills.
Her testimony also indicates that she applied for and received short term disability
benefits from Lima Auto Mall’s insurer for the duration of her time away from work.
Angelina Deposition, 215. McClain Deposition, 70-71.
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{¶56} According to Henry and McClain’s testimony, the process at Lima
Auto Mall, following a workplace injury, was to have the injured employee either
file a workers’ compensation claim or have the company pay for the cost of the
relevant medical bills. The fact that Angelina had Lima Auto Mall pay for her
medical bills would lead Henry and McClain to believe that she was not going to
file a workers’ compensation claim. See Glenn, supra, at ¶ 32. Thus, Angelina’s
first argument does not demonstrate that Henry or McClain believed Angelina was
going to file a workers’ compensation claim and that this belief, in turn, motivated
her termination.
{¶57} Angelina next argues that the “temporal proximity” between her
termination on January 15, 2018 and the filing of her workers’ compensation claim
on January 26, 2018 establishes causation. Appellant’s Brief, 15-16. See Angelina
Deposition, 105, 130. Ex. D. In her brief, Angelina cites to a rule enunciated in
Knepper v. Ohio State University:
Close temporal proximity between the employer’s knowledge of the protected activity and the adverse employment action alone may be significant enough to constitute evidence of a causal connection, but only if the adverse employment action occurs ‘very close’ in time after an employe[r]1 learns of a protected activity.
1 In Knepper, the rule states “employee” instead of “employer.” Knepper, supra, at ¶ 27. We understand this to be a typo. In a case released five days before Knepper, the Tenth District stated this rule as follows: “[w]here an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.” (Emphasis added.) Sells, supra, at ¶ 33, quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008).
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(Emphasis added.) Knepper v. Ohio State Univ., 10th Dist. Franklin No. 10AP-
1155, 2011-Ohio-6054, ¶ 27. In this analysis, it is “knowledge coupled with a
closeness in time that creates an inference of causation.” Knepper at ¶ 27. See
Putney, supra, at ¶ 57 (holding that it is a “small subset of cases where temporal
proximity alone may be sufficient to establish causality.”).
{¶58} In this case, Angelina did not file a workers’ compensation claim until
after she was terminated. Angelina Deposition, 101. Henry and McClain did not
have knowledge that Angelina had engaged in this protected activity of filing a
workers’ compensation claim until after she was terminated. In Karsnak v. Chess
Fin. Corp., the Eighth District considered a situation in which an employee filed a
complaint with the EEOC one day after she was terminated and held
That an event in the future could cause something in the past is a proposition that would challenge the space-time continuum. We dare not challenge the fabric of our existence. It is for this reason that we cannot find that the filing of the EEOC was the protected activity that caused [the employer’s] termination of appellant.
Karsnak v. Chess Fin. Corp., 8th Dist. Cuyahoga No. 97312, 2012-Ohio-1359, ¶ 45.
See Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261, ¶
22. Thus, the mere closeness in proximity between these two events does not, by
itself, suggest a causal connection.
{¶59} More importantly, there is also no evidence that Henry or McClain
knew that Angelina was going to file a workers’ compensation and preemptively
terminated her. In fact, Angelina cannot demonstrate that her employer knew that
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she was going to file a workers’ compensation claim at the time that she was
terminated because her testimony does not indicate that she was even considering
such an action at the time that she was terminated. Angelina Deposition, 88, 108.
She testified that she met with a lawyer a few days after she lost her job and then
decided to file a workers’ compensation claim. Angelina Deposition, 101, 108.
While seeking medical treatment for her shoulder, Angelina also told the relevant
medical professionals that she had injured her shoulder while reaching for
something in a cabinet. Id. at 150-152, 180. These statements do not suggest that
she anticipated filing a workers’ compensation claim at that time.
{¶60} Since there is no evidence that Henry and McClain were aware that
Angelina was going to file a workers’ compensation claim, the temporal proximity
between her termination and the filing of her workers’ compensation claim cannot
establish causation. See Ferguson v. ProMedica Central Physicians. LLC, 2018-
Ohio-4358, 114 N.E.3d 429, ¶ 27 (6th Dist.) (granting summary judgment where
the plaintiff alleged retaliation but could not establish the employer was aware of
the protected activity). In the absence of some evidence that demonstrates her
employer was aware that she was going to file a workers’ compensation claim,
Angelina cannot establish how filing a workers’ compensation claim after her
termination proves that filing a workers’ compensation claim caused her
termination. See Putney, supra, at ¶ 57.
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{¶61} Angelina also mentions the date of her injury in this argument.
However, the temporal proximity between Angelina’s injury and her termination
also does not, by itself, establish causation. While there is no evidence that Henry
or McClain knew that Angelina was going to file a workers’ compensation claim,
Henry and McClain were aware of Angelina’s injury. However, under Sutton, “no
presumption of retaliation arises from the fact that an employee is discharged soon
after an injury.” Sutton, supra, at ¶ 10. In Sutton, the plaintiff was terminated within
one hour of his employer having been informed that he had suffered a workplace
injury. Sutton, supra, at ¶ 2.
{¶62} Unlike the facts in Sutton, Lima Auto Mall did not terminate Angelina
before she had an opportunity to file a workers’ compensation claim. In the case
before this Court, Angelina reported that she was injured at work over one month
before she was terminated. Angelina Deposition, 130. See O’Malley-Donegan v.
MetroHealth System, 2017-Ohio-1362, 89 N.E.3d 113, ¶ 24 (8th Dist). The fact that
Angelina could have filed a workers’ compensation claim at the time that she was
terminated does not indicate that she was terminated for a reason related to a
workers’ compensation claim. See Glenn, supra, at ¶ 31 (finding an argument for
retaliatory termination to be speculative and without merit because it relied on the
fact that an employee might file a workers’ compensation claim). Angelina has the
burden of establishing that Lima Auto Mall engaged in “purposeful retaliation,”
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having “a specific intent to discharge [her] for engaging in the protected act of filing
a workers’ compensation claim.” (Emphasis sic.) Id.
{¶63} Further, in the one-month period of time in between Angelina’s injury
and her termination, her employer paid for her medical bills; Angelina received
short-term disability benefits from Lima Auto Mall’s insurer; and Henry attempted
to schedule her for light duty. McClain Deposition, 61, 71. Considering this
context, the temporal proximity between Angelina’s injury and her termination does
not suggest that her employer was motivated to terminate her by considerations
related to the relevant public policy regarding workers’ compensation claims.
{¶64} While Angelina was terminated in between her date of injury and the
point at which she filed her workers’ compensation claim, she has not pointed to
facts in the record that would connect her employer’s decision to terminate her and
her decision to file a workers’ compensation claim. See Sutton, supra, at ¶ 10. There
is no evidence in the record that indicates Henry or McClain was aware that
Angelina was going to file a workers’ compensation claim and terminated Angelina
for this reason. Thus, Angelina has not identified evidence that would create a
genuine issue of material fact as to the causation element of her wrongful
termination in violation of public policy claim.
{¶65} Even if Angelina had provided evidence for the causation element, her
claim would still fail because she has not alleged facts that create a genuine issue of
material fact as to whether Lima Auto Mall lacked an overriding, legitimate business
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justification for her termination. In the affidavits attached to its motion for summary
judgment, Lima Auto Mall provided two overriding, legitimate business
justifications for Angelina’s termination: (1) the company was reducing their
workforce to cut costs and (2) Angelina was argumentative or insubordinate at work.
Doc. 29, Ex. A. See Boggs v. The Scotts Company, 10th Dist. Franklin No. 04AP-
425, 2005-Ohio-1264, ¶ 19 (determining that a reduction in force was a legitimate
business purpose that justified termination); Thompson v. Gynecologic Oncology &
Pelvic Surgery Assoc., 10th Dist. Franklin No. 06AP-340, 2006-Ohio-6377, ¶ 26,
31 (determining that personality conflicts were an overriding, legitimate business
justification for termination).
{¶66} As to the reduction in force, McClain said that Lima Auto Mall’s
“sales have been going down * * *” and that his business manager informed him
that “we have way too many people in the detail shop.” McClain Deposition, 13.
He stated that he was “trying to cut expense[s]” and that employees were the
“biggest expense.” Id. at 13-14. Further, McClain testified that no one was hired
to replace Angelina after she was terminated. Doc. 29, Ex. A. McClain also stated
that another employee of the detail department left Lima Auto Mall four to six weeks
after Angelina was terminated and that this employee was also not replaced. Id. at
83. In his deposition, Henry testified that Lima Auto Mall “wasn’t doing that well
in business” and that they “had too many people” working there. Henry Deposition,
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49, 56. He further said that they “were losing money, in the shop. We had to let
somebody go.” Id. at 69.
{¶67} As to the argumentativeness or insubordination, Henry testified that
Angelina “had a mouth.” Henry Deposition, 9. He said that Angelina “sometimes”
intimidated him; that she would tell him how to do his job; and that “[i]t upset him.”
Id. at 10, 19. Henry stated that Angelina “would tell [one of her African American
coworkers], you know, black people shouldn’t be doing this, or you think black
people are better than white people, and that kind of stuff. And I had to step in * *
*.” Id. at 18. He also stated that his verbal performance evaluation of Angelina was
“keep up the work, but keep your trap shut.” Id. at 31.
{¶68} In his deposition, McClain explained that he had “a right to lay people
off because we have lack of work. I know that she’s been a problem, and I did what
I had to do * * *.” McClain Deposition, 8-89. He further stated that Angelina was
“overbearing”; that she “had a way about intimidating people”; that she “coerced
other employees, with her mouth”; and that Henry could not “handle her.” Id. at 10,
90-91. He also said that Angelina “refus[ed] [Henry’s] orders, when he told * * *
her to do something was—number one, that’s bad, in front of the other people. She
did not respect her father.” Id. at 89. He also stated that the other employees would
complain about Angelina to him and that she was “mouthy.” Id. at 10-11, 90.
{¶69} With this testimony, Lima Auto Mall produced evidence of overriding,
legitimate business justifications for Angelina’s termination. See Sells, supra, at ¶
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34. In response, Angelina asserts that Lima Auto Mall’s justifications shifted over
time from a reduction in force to insubordination or argumentativeness, indicating
that these reasons were pretextual. See Id. at ¶ 27 (holding that “[a] court will not,
however, infer pretext from an employer’s assertion of different, although
consistent, reasons for taking an adverse action.”).
{¶70} However, from Angelina’s discharge paperwork to the appellees’
motion for summary judgment, Lima Auto Mall has consistently cited a business
slowdown as a basis for her termination. Ex. 3. Doc. 29, Ex. A, B. Further,
McClain, Henry, and Angelina provided consistent testimony as to Angelina’s
argumentative behavior at work. Doc. 29, Ex. A, B. Henry Deposition, 13, 19, 38.
McClain Deposition, 10, 43. Angelina Deposition, 73-74. Even if Lima Auto
Mall’s justifications for Angelina’s terminations had shifted from reduction in force
to argumentativeness or insubordination, these reasons are not inconsistent. The
reduction in force was the reason a position in the detail department was terminated.
Doc. 29, Ex. A. Angelina’s argumentativeness or insubordination was the reason
her position in the detail department was terminated. Doc. 29, Ex. A.
{¶71} We also note that, in her response, Angelina does not identify evidence
that suggests Lima Auto Mall was not experiencing a business slowdown. Further,
while Angelina testified that she was not insubordinate, she admitted to engaging in
the behaviors that McClain and Henry identified as insubordination in their
testimony. Angelina Deposition, 73-74. In her testimony, Angelina admitted that
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she regularly argued with her supervisor, Henry, at work. Id. In other words,
Angelina confirms the conduct that was a basis for her termination but disputes
Lima Auto Mall’s use of the label “insubordination” for this conduct. See Wissler
v. Ohio Dept. of Job and Family Services, 10th Dist. Franklin No. 09AP-569, 2010-
Ohio-3432, ¶ 24. She also admitted to arguing with her coworkers on a regular basis
at work. Angelina Deposition, 73-74. Thus, Angelina has not carried the burden of
establishing that there is a factual dispute over whether Lima Auto Mall lacked
overriding, legitimate business justifications for her termination.
{¶72} In the end, Angelina has not established the causation element by
pointing to evidence that would establish a connection between Lima Auto Mall’s
decision to terminate her and her subsequent decision to file a workers’
compensation claim. Angelina also has not identified facts in the record that
indicate that her employer lacked overriding, legitimate business justifications for
her termination. After reviewing the evidence in a light most favorable to the
nonmoving party, we conclude that Angelina has not carried the burden of
establishing that genuine issues of material fact exist for trial on this claim. Thus,
Angelina’s first assignment of error is overruled.
{¶73} Angelina asserts that the appellees were not entitled to summary
judgment on her gender discrimination claim.
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{¶74} R.C. 4112.02 prohibits certain discriminatory employment practices
and reads, in its relevant part, as follows:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the * * * sex * * * of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
R.C. 4112.02(A). The Supreme Court of Ohio has “determined that federal case
law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq.,
Title 42, U.S.Code, is generally applicable to cases involving alleged violations of
R.C. Chapter 4112.” Plumbers & Steamfitters Joint Apprenticeship Committee v.
Ohio Civil Rights Commission, 66 Ohio St.2d 192, 196, 421 N.E.2d 128, 131 (1981).
{¶75} In Ohio, a plaintiff may establish a discrimination claim under the
McDonnell Douglas Corp. v. Green framework. Jones v. MTD Consumer Group,
Inc., 2015-Ohio-1878, 32 N.E.3d 1030, ¶ 27 (9th Dist.), citing McDonnel Douglas
Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under
this framework,
[t]o establish a prima facie case of discrimination, a plaintiff must show: (1) membership in a protected class; (2) qualification for the position; (3) an adverse employment action; and (4) replacement by a non-protected person.
Putney, supra, at ¶ 25, quoting McDonnell Douglas Corp. at 802.
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However, “[a] plaintiff can also make out a prima facie case by showing, in addition to the first three elements, that ‘a comparable non-protected person was treated better.’” Mitchell v. Toledo Hosp. (C.A.6, 1992), 964 F.2d 577, 582 (internal citations omitted). Under this element, a plaintiff ‘must produce evidence which at a minimum establishes (1) that he [or she] was a member of a protected class and (2) that for the same or similar conduct he [or she] was treated differently than similarly-situated non- minority employees.’ Id. at 582-83.
Putney at ¶ 25.
{¶76} “To demonstrate that a co-worker is similarly-situated, ‘[T]he plaintiff
and the employee with whom the plaintiff seeks to compare himself or herself must
be similar in “all of the relevant aspects.”’” (Emphasis sic.) Brehm v. MacIntosh
Company, 10th Dist. Franklin No. 19AP-19, 2019-Ohio-5322, ¶ 29, quoting
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998),
quoting Pierce v. Commonwealth Life Ins. Co., 825 F.Supp. 783, 802 (E.D.
Ky.1993). Further, in Mitchell v. Toledo Hosp.,
[t]he Sixth Circuit has held that “to be deemed ‘similarly- situated’ in the disciplinary context, ‘the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.’”
Putney at ¶ 31, quoting Ercegovich at 352, quoting Mitchell at 583. However, the
Sixth Circuit, in Ercegovich, also held that
[c]ourts should not assume * * * that the specific factors discussed in Mitchell are relevant factors in cases arising under different circumstances, but [courts] should make an independent
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determination as to the relevancy of a particular aspect of the plaintiff’s employment status and that of the non-protected employee.
Ercegovich at 352. See Putney at ¶ 32. Further, “[a] person is not similarly situated
unless the conduct engaged by the proffered individual is of ‘comparable
seriousness’ to the conduct that predic[a]ted the employee/plaintiff's termination.”
Waddell v. Grant/Riverside Medical Care Foundation, 2017-Ohio-1349, 88 N.E.3d
664, ¶ 33 (10th Dist.).
{¶77} “An employee’s burden in demonstrating discrimination is heavier
when a reduction in force is required by economic necessity.” Hamilton v. Sysco
Food Servs. of Cleveland, Inc., 170 Ohio App.3d 203, 2006-Ohio-6419, 866 N.E.2d
559, ¶ 15 (8th Dist.), citing Carpenter v. Wellman Prods. Group, 9th Dist. Medina
App. No. 03CA0032-M, 2003-Ohio-7169, ¶ 17.
A workforce reduction situation occurs when business considerations cause an employer to eliminate one or more positions within the company. An employee is not eliminated as part of a work force reduction when he or she is replaced after his or her discharge.
Carpenter at ¶ 16. “For purposes of summary judgment, a plaintiff must submit
evidence from which a reasonable jury could conclude that the plaintiff established
a prima facie case of discrimination.” Housden v. Wilke Global, Inc., 2018-Ohio-
3959, 111 N.E.3d 1264, ¶ 27 (10th Dist.).
{¶78} If a plaintiff establishes a prima facie case of gender discrimination,
then there is a presumption of discrimination. Williams v. Akron, 107 Ohio St.3d
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203, 2005-Ohio-6268, 837 N.E.2d 1169, ¶ 11. “Once a plaintiff establishes [a]
prima facie case, the burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.” Putney at ¶ 25,
citing Texas Dept. of Comm. Affairs v. Burdine (1981), 450 U.S. 248, 252-53, 101
S.Ct. 1089, 1093-94, 67 L.Ed.2d 207.
The employer meets its burden of production by submitting admissible evidence that ‘taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action,’ and in doing so rebuts the presumption of discrimination that the prima facie case establishes. (Emphasis sic.) Williams at ¶ 12, quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
Housden at ¶ 20. “The employer’s burden is one of production, not of persuasion.”
Waddell, supra, at ¶ 28. “The ultimate burden of persuasion always remains with
the plaintiff.” Ames, supra, at ¶ 27.
{¶79} If the employer carries the burden of producing evidence that
establishes nondiscriminatory reasons for the adverse employment action, then
‘the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not the true reasons, but were a pretext for discrimination.’
Putney at ¶ 25, quoting Burdine, supra, at 252-253. “To establish such pretext, a
plaintiff must show either (1) that the proffered reasons had no basis in fact, (2) that
the proffered reasons did not actually motivate [her] discharge, or (3) that they were
insufficient to motivate discharge.” Jones v. MTD Consumer Group, Inc., 2015-
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Ohio-1878, 32 N.E.3d 1030, ¶ 27 (9th Dist.), quoting (Citations and emphasis
omitted.) Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir.2008). See also
Waddell, supra, at ¶ 29.
{¶80} In this case, there is no dispute as to the first three elements of the
prima facie case of gender discrimination. Appellees’ Brief, 13. First, Angelina, as
a female, is a member of a protected class. Angelina Deposition, 198. Second,
McClain and Henry both stated that Angelina was qualified for her job. McClain
Deposition, 24, 26. Henry Deposition, 21-22. Angelina Deposition, 41. Third,
there was adverse employment action as Angelina’s job was terminated. Henry
Deposition, 66. McClain Deposition, 26.
{¶81} However, there is an issue, on appeal, as to whether Angelina has
substantiated the fourth element of a gender discrimination claim. To satisfy this
element, Angelina must either demonstrate (1) that Lima Auto Mall replaced her
with a male or (2) that Lima Auto Mall did not treat her as favorably as another
similarly situated male after engaging in the same conduct as Angelina. Putney,
supra, at ¶ 25. McClain stated that Angelina’s position was not filled after her
departure because her termination was part of a reduction in force. Doc. 29, Ex. A.
Further, McClain and Henry stated business was slowing down at Lima Auto Mall
and that Angelina was not replaced because of a reduction in force. Doc. 29, Ex. A,
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B. In response, Angelina does not allege that Lima Auto Mall replaced her with a
male or that Lima Auto Mall was not engaged in a reduction in force.
{¶82} Rather, to carry the burden of establishing the fourth element,
Angelina first argues that her termination allowed for the retention of a male
detailer, Dennis Hapner (“Hapner”). She then argues that another male detailer at
Lima Auto Mall, Paul Duckett (“Duckett”), was treated more favorably than she
was by her employer. Angelina, Hapner, and Duckett were each detailers who had
worked under Henry’s supervision at Lima Auto Mall. Angelina Deposition, 65,
200. Doc. 29, Ex. A. We will examine the record to determine whether Angelina
has established that these male counterparts were treated more favorably than she
was after engaging in the same type of conduct that led to her termination.
{¶83} McClain stated that Angelina was terminated and Hapner was retained
because Angelina argued with her supervisor, Henry, at work and “would ‘stir the
pot’ with other workers by starting arguments about politics and sports * * *.” Doc.
29, Ex. A. Hapner, on the other hand, did not engage in such behavior. McClain
Deposition, 92. Henry also stated that he and Angelina “would get face-to-face
arguing” at work. Doc. 29, Ex. B. Henry Deposition, 19, 38. Angelina admitted
that she argued with her coworkers but also indicated that her coworkers all argued
with each other in the detail shop. Angelina Deposition, 73-74. However, Angelina
also admitted that she frequently argued with her supervisor at work but nowhere
alleged that Hapner ever argued with Henry at work. Id.
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{¶84} Further, an examination of the record does not reveal any evidence of
a pattern of conflict between Hapner and his supervisor, Henry. See Ames v. Ohio
Dept. of Rehab. & Corr., 2014-Ohio-4774, 23 N.E.3d 162, ¶ 26 (10th Dist.)
(considering the plaintiff’s pattern of conflict with coworkers in a comparable
seriousness analysis). Since Angelina has not pointed to any evidence that Hapner
ever argued with Henry at work, she has not demonstrated that Hapner was treated
more favorably than she was after engaging in the same pattern of conduct that led
to her termination. See Stipkala v. Bank One, N.A., 9th Dist. Summit No. 21986,
2005-Ohio-16, ¶ 15 (holding the plaintiff had to demonstrate that the proffered,
similarly situated coworker “engaged in the same conduct but was either not
disciplined or not disciplined as severely as” the plaintiff.).
{¶85} Angelina also argues that her employer treated her less favorably than
Duckett. At the time that Angelina was terminated, Duckett was no longer working
at Lima Auto Mall. Henry Deposition, 30. Thus, Angelina’s termination did not
facilitate Duckett’s retention. However, Angelina has also not identified any
evidence that indicates Duckett ever argued with Henry at work. Further, the record
does not contain evidence that indicates there was a pattern of conflict between
Duckett and Henry. It is also unclear from the record if Lima Auto Mall was in the
process of a reduction in force at the time Duckett was employed.
{¶86} Angelina points to the fact that Duckett had fallen asleep while he was
at work and had not been terminated for this conduct. Angelina Deposition, 67.
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The record indicates that Henry had written up Duckett for falling asleep at work.
Henry Deposition, 30. Duckett then produced a doctor’s note that indicated he had
a sleeping disorder. Id. Subsequently, Duckett left to care for his father and never
returned to work at Lima Auto Mall. Id. McClain stated that Duckett “quit before
I could fire him.” McClain Deposition, 46.
{¶87} Further, the record also indicates that Angelina’s immediate
predecessor was a male detailer who “gave Henry a very, very hard time” and was
terminated for that reason. McClain Deposition, 14. Henry testified that employees
have acted defiantly towards him in the past. Henry Deposition, 12-13. Henry said
of these defiant employees: “they can either go out or I’ll push them out.” Id.
Angelina has not pointed to any evidence that would put these facts into dispute.
“In practical terms, two employees are not similarly-situated in all relevant respects
if there is a meaningful distinction between them which explains their employer’s
differential treatment of them.” Poppy v. Willoughby Hills City Council, 11th Dist.
Lake No. 2004-L-015, 2005-Ohio-2071, ¶ 41. Angelina has not demonstrated that
any similarly situated, male detailer at Lima Auto Mall was treated more favorably
than she was after engaging in the same pattern of argumentative conduct with the
supervisor of the detail department.
{¶88} Angelina also points to a comment made by McClain as evidence of a
discriminatory intent. She testified that McClain, upon receiving medical
documentation about the limitations that she had immediately following her injury,
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made the following comment: “I wouldn’t hire a one-armed man, let alone a one-
armed woman. What am I supposed to do with someone with one arm?” Angelina
Deposition, 142. There is a dispute as to the content of this comment.
{¶89} McClain only admits to saying that he “wouldn’t hire a one-armed
person.” Doc. 29, Ex. A. He did not admit to saying the portion about a “one-armed
woman.” Doc. 29, Ex. A. McClain Deposition, 67. He further explained that this
statement was intended “as a joke.” Doc. 29, Ex. A. McClain Deposition, 67. A
jury could very well believe McClain when he says that did not make any reference
to Angelina’s gender or that he intended this comment only as a joke. However,
when examining a motion for summary judgment, we must examine this comment
in a light most favorable to the non-moving party: Angelina. See Conway v. Paisley
House, 7th Dist. Mahoning No. 02CA135, 2003-Ohio-4609, ¶ 15, 22.
{¶90} At the outset, we note that Angelina did not present this comment as
direct evidence of discriminatory intent to the trial court.2 See Smith v. Kelly, 2d
Dist. Clark No. 2011 CA 77, 2012-Ohio-2547, ¶ 32. On the one hand, this comment,
2 On appeal, Angelina refers to McClain’s statement as “direct evidence.” The words “direct evidence” can refer to a type of evidence or, in the context of a gender discrimination claim, a method of proof. Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578, 586, 664 N.E.2d 1272, 1279 (1996). This method of proof is an alternative to the McDonnell Douglas analysis. Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 548 (6th Cir. 2004). In this case, Angelina does not set forth the legal standard for the direct evidence framework; does not cite to cases that rely on this standard; did not refer to this comment as direct evidence to the trial court; and did not refer to the direct evidence legal standard to the trial court. Rather, to the trial court and this Court, Angelina has set forth the McDonnell Douglas legal standard and has structured her entire argument for gender discrimination around the McDonnell Douglas burden-shifting framework. For this reason, we will consider McClain’s comment within the context of the McDonnell Douglas burden shifting framework.
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as related by Angelina, was made by the person who decided to terminate Angelina;
was related to her status as an employee; directly referenced Angelina’s gender; and
was made within one month of her termination. On the other hand, from the
evidence produced by Angelina, this comment also does not appear to be a part of
a broader pattern of such commentary from McClain. Angelina affirmed that
McClain was not “abusive” towards her. Angelina Deposition, 101. She also does
not identify other similar comments from McClain, affirming at the end of her
deposition that she had no “other statements that [she] would consider outrageous
or outlandish” to offer from McClain. Angelina Deposition, 210.
{¶91} We also note that
[a]n employer can demonstrate a nondiscriminatory intent with regard to demotion or termination of an employee through the ‘same actor’ inference. Where the same actors make positive and adverse employment decisions about an individual, especially within a short time period, a court may strongly infer a nondiscriminatory motivation in the later action.
Crawford v. Kirtland Local School Board of Education, 124 N.E.3d 269, 2018-
Ohio-4569, ¶ 69, quoting Pirsil v. Internatl. Steel Group Cleveland, 8th Dist.
Cuyahoga No. , 2005-Ohio-3013, ¶ 14.
An individual who is willing to hire and promote a person of a certain class is unlikely to fire them simply because they are a member of that class. This general principle applies regardless of whether the class is age, race, sex, or some other protected classification.
In discrimination cases where the employee’s class does not change, it remains possible that an employer who has nothing
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against women per se when it hires a certain female will have nothing against women per se when it fires that female, regardless of the number of years that pass.
Buhrmaster v. Overnite Transp. Co., 61 F.3d 461 (6th Cir. 1995).
{¶92} In this case, Lima Auto Mall has identified facts in the record that
indicate the same actor inference is applicable in this situation. McClain is the
individual who hired and terminated Angelina. McClain Deposition, 21, 23. He
had known her before she was hired and gave her a job at Lima Auto Mall in the
absence of an interview. McClain Deposition, 23. Angelina Deposition, 46. He
also gave Angelina a raise upon her request even though this was not the standard
method to award pay increases. Doc. 29, Ex. A. See Pulver v. Rookwood Highland
Tower Investments, 1st Dist. Hamilton No. Nos. C-950361, C-950429., 1997 WL
133422, *8 (Mar. 26, 1997) (considering a pay increase under the same actor
inference analysis). Thus, McClain has alleged facts sufficient to raise the same
actor inference. See Pirsil at ¶ 16; Crawford at ¶ 70.
{¶93} Assuming that Angelina had set forth facts that establish a prima facie
case for gender discrimination, Lima Auto Mall provided legitimate,
nondiscriminatory reasons for her termination in their motion for summary
judgment. Further, she is not able to demonstrate that these nondiscriminatory
reasons for her termination are pretextual. We will proceed through this analysis.
Angelina’s employer gave two nondiscriminatory reasons for her termination in
their motion for summary judgment. First, they assert that a detailing position was
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terminated because they were reducing their workforce as a result of a general
slowdown in their business. Doc. 29. Second, they assert that Angelina’s detailing
position was terminated because she was argumentative or insubordinate. Doc. 29.
We turn to examining these reasons in further detail.
{¶94} Regarding the termination of a detailing position, McClain stated that
Lima Auto Mall used to have eight franchises and employed up to 130 people. Doc.
29, Ex. A. By the time that this action was instituted, Lima Auto Mall had two
franchises and roughly sixty employees. Doc. 29, Ex. A. McClain Deposition, 13,
18. McClain further stated that another detailer left four to six weeks after Angelina
was terminated and that this other position had not been filled. McClain Deposition,
83. Henry testified that there were too many employees and that business was “not
doing that well.” Henry Deposition, 49.
{¶95} As to why Angelina was terminated, McClain made the following
statements in an affidavit filed with the appellees’ motion for summary judgment:
15. During the time that Angie was in the detail department, she did good work, but she was ‘mouthy,’ she would ‘stir the pot’ with other workers by starting arguments about politics and sports, and she would act insubordinate with her supervisor who was also her father. She annoyed other employees because she constantly talked about her family and made others feel like she was better than them.
16. While Angie was off work after her injury, the detail department was noticeably more peaceful. The constant arguing among workers that persisted while Angie was there had stopped in her absence. Additionally, the detail department continued to function smoothly. It became clear to me that I had too many
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detailers working back there for the amount of detailing work we had, and it was time to let someone go to cut overhead costs.
17. Since the business slowdown meant someone had to be let go, Angie became the obvious choice when it was seen how peaceful the detail department was in her absence combined with her history of arguing with co-workers and acting insubordinate with her supervisor, Henry Nance.
Doc. 29, Ex. A. In his deposition, McClain also stated that Angelina “coerced other
employees, with her mouth. They have even come to me and said, you know, I don’t
work for her.” McClain Deposition, 90.
{¶96} McClain further stated that the other employees were “tired” of her
telling them how to do their jobs and that
[i]t [was] not her job to intimidate or help. Her job was to detail cars and buff.
She went above that, by trying to manage her father’s job. And her father had to get into her about doing it, because he got tired of it.
McClain Deposition, 90-91. He also said,
A number of people that worked back there with her have made comments to me about the way she treated them; the way she would boss them or tell them how to do their job. She called it helping. But a lot of them took offense to the way she—she was kind of overbearing—she’s very smart, in her opinion; and a lot of them were not very smart, according to her, and they didn’t know what they were doing.
He also said, “I guess they [Henry and Angelina] got into pretty good arguments,
back there, in front of people.” Id. at 10. McClain testified that Henry informed
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him that “he don’t know what to do with her” and that he could not “handle her.”
Id. at 91.
{¶97} In an affidavit, Henry stated that Angelina “intimidated” and
“threaten[ed]” the other employees during their arguments. Doc. 29, Ex. B. He
further stated:
5. Angie is a hard worker and good detailer but she gets “mouthy” and acted disrespectful to me as her supervisor. She would try to tell me how to do my job. She would bring up politics with the other workers and argue with them. Angie is very opinionated and vocal about her opinions. She liked to argue and was constantly starting arguments. She also often argued with the other workers about sports. She sometimes would try to goad others into arguing with her about her sexuality, but the other workers always refused to “take the bait.”
6. Sometimes Angie would argue about the job. She would tell me that I did not know how to do my job and we would get face- to-face arguing.
Doc. 29, Ex. B. In his deposition, he further stated the following:
we’re already losing money, in the shop. We had to let somebody go. Sooner or later, it was either going to be one of them. And, you know, Dalton, he worked, he was there every day; Dennis [Hapner], good worker, fantastic worker, there every day. Plus, I didn’t have all this yelling and screaming all the time.
Henry Deposition, 69-70. Henry reported that the detail department has been “much
more peaceful with less arguing” in Angelina’s absence. Doc. 29, Ex. B. After
examining the evidence in the record, we conclude that Lima Auto Mall has carried
the burden of producing evidence that Angelina was terminated for legitimate,
nondiscriminatory reasons.
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{¶98} In response, Angelina has the burden of establishing that these
nondiscriminatory reasons are pretextual. To do this, Angelina must demonstrate:
“(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate [her] discharge, or (3) that they were insufficient to motivate
discharge.” Jones, supra, at ¶ 27, quoting Russell, supra, at 604. Angelina purports
to use the first and third options to prove pretext. She advances arguments against
each of Lima Auto Mall’s two nondiscriminatory reasons for her termination.
{¶99} On appeal, Angelina argues against the reduction in force justification
on the grounds that no one else in the detail department was terminated. Notably,
Angelina nowhere disputes that Lima Auto Mall was experiencing a business
slowdown. The fact that Lima Auto Mall did not terminate anyone else in the detail
department does not indicate that the company was not engaged in a reduction in
force. We note that there were only six positions under Henry’s supervision at the
time that Angelina was terminated. McClain Deposition, 14. The fact that her
position was not filled after her termination establishes that this company was, in
fact, reducing the number of positions in its detail department.
{¶100} Further, after Angelina was terminated, another employee left the
detail department and was also not replaced. McClain Deposition, 83. By this time,
there were only three and a half positions under Henry’s supervision. Id. at 14.
Thus, there is ultimately no factual dispute as to whether Lima Auto Mall was
experiencing a business slowdown or as to whether Lima Auto Mall was in the
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process of reducing its workforce at the time that Angelina was terminated.
Angelina’s argument does not demonstrate that Lima Auto Mall’s claim—to be in
the midst of a reduction in force—was factually untrue or that a reduction in force
was not sufficient to motivate her discharge.
{¶101} On appeal, Angelina also argues that the reduction in force
justification is pretextual because she was terminated even though she had more
seniority than Hapner. See Angelina Deposition, 200. We note that Lima Auto
Mall’s handbook puts its employees on notice of the following policy:
In the event of a reduction in force, the Company will strive to take into account an employee’s length of service with the Company, but skill ability, attitude about his/her work and other factors will play an important role.
Ex. J. Under the company policy, Angelina, in the event of a reduction in force,
was not guaranteed priority over Hapner because of her seniority. Ex. J. Further,
Angelina further testified that she did not have a written contract of employment
that provided a definite period for her employment and stated that she was not
promised that she could work there for any specified period of time. Angelina
Deposition, 212-213.
{¶102} Further, McClain stated that he did not cut Hapner’s position because
“[h]e was a better worker; no problems; no hassles.” McClain Deposition, 92. He
also stated that Hapner was “a good worker. He don’t complain.” Id. McClain
reported that Angelina routinely argued with her supervisor and her coworkers while
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at work. Doc. 29, Ex. A. Henry also stated that he and Angelina “would get face-
to-face arguing” at work. Doc. 29, Ex. B. Henry Deposition, 19, 38. In her
deposition, Angelina admitted to engaging in this type of behavior but pointed to
the fact that her coworkers would also argue with her. Angelina Deposition, 73-74.
{¶103} However, Angelina also admitted that she argued with her supervisor
at work but nowhere alleged that Hapner argued with their supervisor at work. Id.
Further, an examination of the record does not reveal any evidence of a pattern of
conflict between Hapner and his supervisor, Henry. Henry and McClain both
testified that Hapner was a good employee who did not cause problems. McClain
Deposition, 92. Henry Deposition, 69-70. There is no evidence in the record that
indicates Hapner or any of Angelina’s other male coworkers who were retained in
the detail department ever argued with Henry; had to be repeatedly spoken to in
Henry’s office for argumentative behavior; or had to be given warnings for such
behavior. Again, this argument does not establish that Lima Auto Mall was not, in
fact, engaged in a reduction in force or that a reduction in force was not a sufficient
reason for Angelina’s discharge.
{¶104} Turning to the argument she raises against Lima Auto Mall’s
insubordination justification, she argues that this reason is pretextual because she
was never formally disciplined for her argumentative or insubordinate conduct.
However, McClain indicated that the reason Angelina was not, as a general matter,
formally reprimanded was because Henry was both her father and her supervisor.
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McClain Deposition, 86-87. Given this “unique situation,” McClain stated that he
did not formally reprimand Angelina and indicated that he allowed Henry, as her
supervisor, to address any issues with Angelina in his own manner. Id. At the end
of his deposition, McClain stated that Henry admitted that he, as her supervisor,
could not “handle” Angelina. Id. at 92.
{¶105} Henry stated that he did not give her formal performance evaluations
and also did not, as a general matter, formally reprimand Angelina. Henry
Deposition, 32, 40. Instead, Henry stated that he would speak to her himself; that
he would call her into his office for talks; and would, at times, threaten to send her
home. Id. at 19, 40. He also indicated that, when other employees would have an
issue with Angelina, they would speak to him. Id. at 14. He testified that he would
tell these complaining employees that he would “handle it” and that he would then
speak with Angelina. Id. Henry’s testimony indicated that he repeatedly told
Angelina not to behave in an argumentative manner but that this behavior continued
nonetheless. Id. at 13, 19, 20, 31, 38, 40.
{¶106} Further, we also note that Henry did eventually fill out an employee
warning notice for Angelina. Ex. L. Henry Deposition, 40-44. This document
indicated that Henry instructed Angelina to return to work for light duty in
December of 2017 but that Angelina did not return to work. Ex. L. Henry stated
that this document was filed at Lima Auto Mall. Henry Deposition, 40. While
Angelina stated that she had not seen this document, she does not dispute having a
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heated argument with Henry on the phone regarding her return to work to perform
light duty. Angelina Deposition, 98-9, 192. Angelina stated that, in this
conversation, Henry was upset. Id. at 100. She said “[h]e was rambling about me
getting fired * * *.” Id. at 100.
{¶107} While Angelina disputes having been insubordinate, she admits to
engaging in the argumentative conduct that Henry and McClain identified as
insubordination. Angelina Deposition, 73-74, 97, 98-99. She admits that she
frequently argued with her coworkers and her supervisor at work. Id. Henry and
McClain testified that the detail department was peaceful in her absence and that
this motivated their decision to terminate her position instead of another detailer’s
position. Doc. 29, Ex. A, B. They also indicate that previous employees of the
detail department had been terminated for engaging in similar conduct prior to
Angelina’s time at Lima Auto Mall. McClain Deposition, 14. Henry Deposition,
12-13.
{¶108} The absence of a formal reprimand for argumentative or
insubordinate behavior does not establish that she was not argumentative or
insubordinate, especially when considering her own admissions about her
workplace behavior. Further, this argument does not establish that the
argumentative behavior in which she admittedly engaged did not provide sufficient
grounds for termination. See Thompson, supra, at ¶ 31.
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{¶109} As to the question of whether Angelina was argumentative or
insubordinate, there is no dispute as to whether Angelina had a consistent pattern of
argumentative behavior at work with her coworkers. It is also undisputed that
Angelina routinely argued with her supervisor at work. Further, there is no evidence
in the record that Angelina’s coworkers in the detail department had a pattern of
argumentative conflict with their supervisor, Henry. There is also undisputed
evidence that previous employees in the detail department had been terminated for
engaging in similar types of conduct toward Henry.
{¶110} After reviewing the evidence in a light most favorable to the non-
moving party, we conclude that Angelina has not demonstrated that she was treated
less favorably than her male coworkers after engaging in the same type of conduct.
In the absence of such a showing, she could not establish a prima facie case for
gender discrimination. Further, Lima Auto Mall was able to produce evidence of
legitimate, nondiscriminatory reasons for her termination. In response, Angelina
was not able to demonstrate that these nondiscriminatory reasons for her termination
were pretextual by producing evidence that they either were factually untrue or were
insufficient grounds for her discharge. After examining the facts in the record, we
conclude that the trial court did not err in granting the appellees’ motion for
summary judgment. Thus, her second assignment of error is overruled.
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Third Assignment of Error
{¶111} Angelina argues that the appellees were not entitled to summary
judgment on her sexual orientation discrimination claim.
{¶112} “The Supreme Court of Ohio has held that ‘federal case law
interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title
42, U.S.Code, is generally applicable to cases involving alleged violations of R.C.
Chapter 4112.’” Russel v. United Parcel Service, 110 Ohio App.3d 95, 100, 673
N.E.2d 659 (10th Dist.), quoting Plumbers & Steamfitters Commt. v. Ohio Civil
Rights Comm., 66 Ohio St.2d 192, 196, 421 N.E.2d 128, 131 (1981).
{¶113} Angelina states, in her brief, that discrimination on the basis of sexual
orientation is not actionable under Ohio Revised Code Chapter 4112. See R.C.
4112.02(A). During the pendency of this case, the Supreme Court of the United
States decided Bostock v. Clayton County, Georgia, --- S.Ct. ---, 590 U.S. ----, ---
L.Ed.2d --- (2020) (Slip Opinion). In that decision, the Supreme Court held that “it
is impossible to discriminate against a person for being homosexual or transgender
without discriminating against that individual based on sex.” Id. at 9. Thus, the
Court concluded that “[a]n employer who fires an individual merely for being gay
or transgender defies the law.” Id. at 33. Since the Ohio Supreme Court has held
that federal case law is “generally applicable to cases involving alleged violations
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of R.C. Chapter 4112,” the type of claim that Angelina raises herein could
potentially have a basis in law under Bostock. Russel, supra, at 100, quoting
Plumbers & Steamfitters Commt. at 196. See Bostock at 33.
{¶114} However, even if there is now a legal basis for this type of claim
under Ohio law, Angelina has not alleged facts that suggest that she suffered adverse
employment action because of her sexual orientation.3 In her deposition, Angelina
agreed that Henry was aware of her sexual orientation at the time that she was hired;
was accepting of her lifestyle; and had never expressed displeasure that she was
married to a woman. Angelina Deposition, 39, 75, 77.
{¶115} McClain and Henry testified that they were each aware that Angelina
was gay at the time that she was hired. McClain Deposition, 36, 38. Henry
Deposition, 33. She also testified that McClain did not directly speak to her about
her marriage or make any discriminatory slurs regarding her sexual orientation. Id.
at 127-128. However, Angelina did state that McClain had mentioned to her father
that he (McClain) was uncomfortable with Angelina referring to Vanessa as her
wife. Angelina Deposition, 80. She agreed that this was “one isolated incident in
2017.” Id. at 80. She admitted that there were no other “expression[s] of dislike or
3 We note that the trial court did not grant summary judgment as to this claim on the grounds that Ohio law did not recognize discrimination on the basis of sexual orientation as actionable. Doc. 43. Rather, in its judgment entry, the trial court stated that “[t]he record lacks evidence of gender/sexual preference discriminatory intent by defendant.” Doc. 43.
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displeasure” with her lifestyle or her marriage. Id. Angelina also affirmed that no
“adverse disciplinary actions were taken against” her after this incident. Id.
{¶116} In her deposition, her response to the motion for summary judgment,
and her appellate brief, Angelina has not drawn a connection between her sexual
orientation and any adverse employment action taken by Lima Auto Mall. Angelina
Deposition, 198. Doc. 38. Appellant’s Brief, 23-24. She only argues that there is
a right to raise a claim for discrimination on the basis of sexual orientation under
Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq. However, she
does not identify facts in the record that would substantiate such a claim. Thus, her
third assignment of error is overruled.
{¶117} Angelina argues that the appellees were not entitled to summary
judgment on her disability discrimination claims because there is a genuine issue of
material fact as to whether she was terminated for being perceived as disabled.
{¶118} R.C. 4112.02 prohibits certain discriminatory employment practices
(A) For any employer, because of the * * * disability * * * of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.
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R.C. 4112.02(A). “Since Ohio’s disability discrimination statute is similar to the
federal Americans with Disabilities Act, Ohio courts have considered federal cases
for guidance in interpreting the Ohio statute.” Mattessich v. Weathersfield Twp.,
2016-Ohio-458, 59 N.E.3d 629, ¶ 37 (11th Dist.).
{¶119} The Ohio Revised Code defines the word “disability” as follows:
a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.
(Emphasis added.) R.C. 4112.01(13). A “physical or mental impairment” is defined
in the Ohio Revised Code as including the following:
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine;
(ii) Diseases and conditions, including, but not limited to, orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, human immunodeficiency virus infection, mental retardation, emotional illness, drug addiction, and alcoholism.
R.C. 4112.01(A)(16)(a).
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{¶120} If a plaintiff alleges that he or she was discriminated against by an
employer because the plaintiff was disabled, then the plaintiff, in order to establish
a prima facie case of disability discrimination, must demonstrate:
(1) she [or he] was disabled; (2) she [or he] suffered an adverse employment action based, at least in part, on that disability; and (3) she [or he] could safely and substantially perform the essential functions of the job.
Dunn v. GOJO Industries, 2017-Ohio-7230, 96 N.E.3d 870, ¶ 12 (9th Dist), citing
Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 697 N.E.2d 204,
206 (1998).
{¶121} However, “[a] person can gain the protection of the disability
discrimination laws even if he or she is not disabled if the employer regards the
person as being disabled.” Carnahan v. Morton Bldgs. Inc., 2015-Ohio-3528, 41
N.E.3d 239, ¶ 7 (3d Dist.). If a plaintiff alleges that he or she was discriminated
against by an employer because that employer perceived the plaintiff as disabled,
then the plaintiff, in order to establish a prima facie case of perceived disability
discrimination, must demonstrate:
(1) that she [or he] 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.
(Emphasis added.) Jaber v. FirstMerit Corp., 2017-Ohio-277, 81 N.E.3d 879, ¶ 13
(9th Dist.), citing Ames, supra, at ¶ 26.
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If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action. Turner [v. Shahed Ents., 10th Dist. Franklin No. 10AP-892, 2011- Ohio-4654.] ¶ 14. If an employer meets its burden of production, a plaintiff must prove by a preponderance of the evidence that the employer’s reason was merely a pretext for unlawful discrimination.
Ames, supra, at ¶ 27, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
{¶122} In her complaint, Angelina pled a perceived disability discrimination
claim. Doc. 1. Further, in her motion opposing summary judgment, Angelina
argued that her employer perceived her as disabled and that this perception
motivated her employer to terminate her. Doc. 38. She did not argue that she was,
in fact, disabled. Doc. 38. See Angelina Deposition, 130-131, 191, 204. Thus,
Angelina raises a perceived disability discrimination claim, not a disability
discrimination claim. In its judgment entry, the trial court considered this claim in
the following manner:
After reviewing the evidentiary material in favor of plaintiff, this Court finds plaintiff has not pointed out evidence sufficient to create a genuine issue of material fact as to whether she was disabled or handicapped. Therefore, she has not presented sufficient facts to survive a summary judgment against her on her claim of disability discrimination.
Doc. 43. The trial court granted summary judgment on this claim because Angelina
had not identified evidence that she had a disability. Doc. 43. However, since
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Angelina raised a perceived disability discrimination claim, she did not have to point
to evidence that she actually had a qualifying disability in order to defeat summary
judgment on this issue.
{¶123} Thus, the trial court applied the wrong legal standard, evaluating
Angelina’s perceived disability discrimination claim as a disability discrimination
claim. Because the trial court did not apply the proper legal standard to Angelina’s
claim, we must remand this issue to the trial court for consideration under the proper
legal standard. Angelina’s fourth assignment of error is sustained.
Conclusion
{¶124} Having found no error prejudicial to the appellant in the particulars
assigned and argued in the appellant’s first, second, and third assignments of error,
the judgment of Allen County Court of Common Pleas is affirmed as to these issues.
Having found error prejudicial to the appellant in the particulars assigned and
argued in the appellant’s fourth assignment of error, the judgment of the Allen
County Court of Common Pleas is reversed as to these issues.
Judgment Affirmed in Part Reversed in Part And Cause Remanded PRESTON and ZIMMERMAN, J.J., concur.
/hls
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