2023 Ohio 2034
Ohio Ct. App.2023Background
- Childs, a Black man with a 1996 murder conviction (tried as an adult), was hired by Kroger in 2014 and later promoted into management (assistant store manager) in 2016; Kroger’s third-party background checks did not initially disclose the 1996 conviction.
- While managing at Kroger stores, Childs experienced a store robbery in 2017 that preceded performance troubles, a 30-day Action Plan, and later a transfer to another store in early 2018.
- In April–May 2018 coworkers discovered an internet article revealing Childs’ 1996 murder conviction; Kroger’s policy listed murder as a disqualifying conviction and Kroger terminated Childs on May 29, 2018.
- Childs sued asserting race discrimination, disability discrimination (failure to accommodate depression), retaliation, wrongful termination in violation of public policy, unlawful aiding and abetting, and defamation.
- The trial court granted summary judgment for Kroger and individual managers; Childs appealed, arguing discovery rulings, waiver/estoppel about criminal-history reliance, and that genuine issues of material fact precluded summary judgment. The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Discovery motions (motion to compel, sanctions, motion to strike/in limine) | Childs argued appellees withheld/failed to produce documents and should be sanctioned; exhibits at deposition were improper | Kroger said required meet-and-confer was not shown, sanctions motion was untimely, and deposition objections were waived | Trial court did not abuse discretion: motion to compel denied for lack of good-faith conferring; sanctions denied as untimely and no order to compel; strike waived by failure to object at deposition; in limine not separately argued on appeal and denied by implication |
| Waiver / collateral estoppel re: criminal history; motion in limine to exclude conviction | Childs argued Kroger waived right to rely on conviction (because of prior checks/promises and union processes) and federal magistrate previously suggested waiver | Kroger pointed to its policy disqualifying murder, that Childs was at-will manager (no union protection), and that magistrate made no dispositive ruling | Court held Kroger could rely on the conviction: Childs was an at-will manager (not covered by the union), no clear promissory/ equitable estoppel promise, and federal magistrate made no binding waiver ruling |
| Race & disability discrimination; retaliation (Action Plan and termination) | Childs argued supervisors were racist, failed to accommodate depression and retaliated for complaints/requests and reporting coworker’s criminality | Kroger presented legitimate, nondiscriminatory reasons: poor performance leading to Action Plan and discovery of a disqualifying murder conviction justifying termination | Summary judgment affirmed: Childs failed to show he was qualified (murder conviction disqualified him), depression did not substantially limit a major life activity or render him unqualified, and although Action Plan/statement to supervisor could be protected activity, Kroger showed legitimate reasons and Childs failed to prove pretext for discrimination/retaliation |
| Wrongful termination (public policy), aiding/abetting, defamation | Childs said termination violated public policy (reporting sex offender), aiding/abetting and that Gray defamed him by saying he failed to disclose conviction | Kroger argued termination was for disqualifying conviction, aiding/abetting depended on proving underlying discrimination, and Gray’s communications were privileged and true | Court held public-policy claim failed (statute cited regulates residence, not employment); aiding/abetting failed because underlying claims failed; defamation failed because Gray’s statement was true/privileged and no actual malice shown |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (framework for burden-shifting in disparate-treatment claims)
- Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) (employer’s burden to articulate legitimate non-discriminatory reason)
- St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993) (plaintiff’s ultimate burden to prove pretext and intentional discrimination)
- Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228 (1990) (public-policy wrongful discharge framework)
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (plaintiff’s burden to present specific facts to defeat summary judgment after movant meets initial burden)
- Lunsford v. Sterilite of Ohio, L.L.C., 162 Ohio St.3d 231 (2020) (Ohio recognition of at-will employment doctrine and exceptions)
- A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1 (1995) (qualified privilege and actual malice standard in defamation)