Tipton v. Directory Concepts, Inc.
2014 Ohio 1215
Ohio Ct. App.2014Background
- John C. Tipton, an African‑American sales rep, worked for Directory Concepts, Inc. from Sept. 2007 until his termination in Dec. 2008 and later sued for racial discrimination/disparate treatment.
- Tipton alleged examples of differential treatment (e.g., delayed computer access, disparate commission treatment, different performance standards and corrective action) in an affidavit opposing summary judgment.
- The trial court granted defendants’ summary judgment (Aug. 15, 2011), concluding Tipton failed to establish the fourth McDonnell Douglas prima facie element (no evidence he was replaced or that a non‑protected person was treated more favorably).
- Defendants moved for attorney fees under Ohio R.C. 2323.51, alleging Tipton’s suit was frivolous. A magistrate recommended awarding $12,547.80 in fees; Tipton’s objections were ruled untimely by the trial court and overruled.
- On appeal Tipton argued (1) the fee award lacked corroboration from a disinterested witness and (2) his suit was not frivolous because he had a good‑faith basis for disparate‑treatment claims.
- The Fifth District affirmed admission of testimony from a defendant’s counsel as a witness for fee reasonableness but reversed the fee award on plain‑error review, holding the record did not support finding Tipton’s claim frivolous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/corroboration for attorney fees (was testimony from an interested witness required?) | Tipton: testimony from Attorney Jeffrey Heck (who represented a defendant) was improper; a disinterested witness is required to prove reasonableness. | Defendants: Heck’s testimony was admissible; itemized bills plus Heck’s testimony satisfied R.C. 2323.51(B)(5)(a) requirements. | Court: No plain error in admitting Heck; Ohio precedent does not require a disinterested witness as a threshold; itemized bill and testimony sufficed. |
| Whether Tipton’s suit was frivolous under R.C. 2323.51 (could it be supported by a good‑faith argument?) | Tipton: presented affidavit with specific instances of disparate treatment and counsel testified the claim was not frivolous; disparate‑treatment proof can be met by showing treatment of similarly‑situated employees. | Defendants: Tipton made no reasonable pre‑suit inquiry about replacement and produced no evidence he was replaced or that position remained open, so suit was not warranted under existing law. | Court: Reversed fee award — granting summary judgment alone doesn’t make suit frivolous; record contained evidence and testimony supporting a good‑faith disparate‑treatment claim, so fee award was plain error. |
Key Cases Cited
- Goldfuss v. Davidson, 79 Ohio St.3d 116 (Ohio 1997) (plain‑error standard and limits on raising unobjected‑to magistrate errors)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden‑shifting framework for employment discrimination prima facie case)
- Mitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir.) (discussion of McDonnell Douglas elements in discrimination context)
- Whitaker v. Kear, 123 Ohio App.3d 413 (Ohio Ct. App.) (an attorney’s itemized bill alone may be insufficient to establish reasonableness of fees)
- Passmore v. Greene County Board of Elections, 74 Ohio App.3d 707 (Ohio Ct. App.) (summary judgment for plaintiff does not automatically make the suit frivolous under fee‑shifting statutes)