Jaber v. FirstMerit Corp.
81 N.E.3d 879
Ohio Ct. App.2017Background
- Appellant Asmahan “Sue” Jaber, a naturalized U.S. citizen of Lebanese origin, worked as a FirstMerit personal banker for ≈30 years and was terminated in 2012.
- Jaber sued FirstMerit and three managers alleging six claims: (1) retaliation for a wage complaint; (2) age discrimination; (3) national-origin discrimination; (4) perceived-disability discrimination; (5) retaliatory discharge for discrimination complaints; and (6) wrongful discharge in violation of public policy (workplace bullying).
- FirstMerit moved for summary judgment, relying on documented progressive discipline: customer complaints, security breaches (leaving confidential information unsecured), repeated unauthorized off‑the‑clock work after directives to stop, a written warning, a Last Chance Memorandum (LCM), and a Performance Review Committee (PRC) decision to terminate.
- Jaber admitted in deposition that she continued to work off the clock after directives and that she failed to follow through on customer tasks; she disputed certain incidents but did not rebut the disciplinary record with contrary evidence.
- The trial court granted summary judgment for all defendants; Jaber appealed raising six assignments of error. The Ninth District affirmed, concluding FirstMerit established legitimate, nondiscriminatory reasons and Jaber failed to show pretext or create genuine issues of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Age discrimination (R.C. ch. 4112) | Jaber: termination motivated by age; reasonable minds could so find | FirstMerit: progressive discipline tied to performance, policy violations, and safety/compliance concerns | Summary judgment for defendant — Jaber failed to rebut legitimate nondiscriminatory reasons or show pretext |
| National-origin discrimination (R.C. ch. 4112) | Jaber: targeted because of Lebanese background and cultural differences | FirstMerit: same nondiscriminatory reasons (customer complaints, security breaches, off‑the‑clock work) | Summary judgment for defendant — no evidence of pretext or comparators |
| Perceived-disability discrimination (R.C. ch. 4112/ADA analog) | Jaber: perceived disability (stress, prior heart surgery, carrying nitroglycerin) led to harassment and termination | FirstMerit: termination based on documented policy violations and customer-service failures; Jaber’s disability claim was speculative/vague | Summary judgment for defendant — no causal link or evidence employer regarded disability as basis for firing |
| Retaliation (reporting unpaid overtime and complaining of discrimination) | Jaber: protected activity (disclosing off‑the‑clock work; alleging discrimination) led to closer scrutiny and termination | FirstMerit: upon disclosure it repeatedly directed her to itemize hours and paid her; her discrimination email was vague; termination followed PRC decision for performance/policy breaches | Summary judgment for defendant — Jaber forfeited wage‑retaliation claim by not opposing and failed to show causal link for discrimination‑retaliation |
| Public‑policy wrongful discharge (workplace bullying) | Jaber: employer’s bullying forced failure; seeks recognition of public‑policy protection for workplace bullying/diversity/decency | FirstMerit: no Ohio recognition of a public‑policy bullying claim; even if recognized, termination was justified by legitimate business reasons | Summary judgment for defendant — court declines to expand public‑policy tort and notes overriding business justification |
| Individual manager liability | Jaber: managers engaged in discriminatory/retaliatory conduct and participated in discipline | Defendants: managers either lacked decision authority (Perry) or acted through progressive discipline and did not sit on PRC; PRC, not managers, decided termination | Summary judgment for managers — no evidence managers caused termination or engaged in actionable discrimination/retaliation |
Key Cases Cited
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (standard of appellate de novo review of summary judgment)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Civ.R. 56(C) summary judgment criteria)
- Dresher v. Burt, 75 Ohio St.3d 280 (moving party burden and nonmoving party reciprocal burden under Civ.R. 56)
- Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607 (Title VII federal authority applies to R.C. Chapter 4112 claims)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden‑shifting framework for indirect evidence discrimination)
- Collins v. Rizkana, 73 Ohio St.3d 65 (elements for public‑policy wrongful termination claim)
- Faragher v. City of Boca Raton, 524 U.S. 775 (limits on expanding workplace hostility to statutory protection)