779 N.E.2d 788 | Ohio Ct. App. | 2002
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *63
{¶ 2} The record reveals that appellant began employment with the Cuyahoga County Board of Elections ("Board") as a human resources administrator on December 28, 1998. William Wilkens ("Wilkens"), who was the Director of the Board, and Gwen Dillingham ("Dillingham"), the Deputy Director, were her immediate supervisors. Because of appellant's confrontational style of management, her initial six-month probationary period was extended for three months or until September 28, 1999. In a memo to Board members dated September 22, 1999, Wilkens stated:
{¶ 3} "[Appellant's] professional contribution has continued during this period and she has not displayed any of the interpersonal behaviors that led to my request to extend her probation. At our most recent meeting I advised [appellant] of my intent to inform you that she had successfully completed the extended probation period and this memo serves that purpose."
{¶ 4} Notwithstanding this recommendation, appellant's probation period continued, and at its meeting on November 2, 1999, the Board voted unanimously to dismiss appellant stating that her services were "no longer required because she has not satisfactorily completed the initial employment probationary period."
{¶ 5} Appellant filed suit against the Board claiming that she was wrongfully terminated in violation of R.C.
{¶ 6} On October 17, 2001, appellant filed subpoenas seeking to depose Board members, Robert Bennett, Thomas Coyne, John Hairston and Roger Synenberg on October 27, 2001. On October 25, 2001, the Board moved to quash the subpoenas arguing that the October 1, 2001 discovery cut-off date had passed or, alternatively, that attempting to depose these individuals so shortly before the dispositive motion cut-off date was untimely and posed an undue burden on these government officials who have other commitments and/or are otherwise involved in the upcoming general election scheduled for November 6, 2001. The trial court granted the motion.
{¶ 7} The Board thereafter filed its motion for summary judgment seeking judgment in its favor as a matter of law on the basis that (1) appellant's cause of action under R.C. Chapter 4113 is time-barred; and (2) there is no evidence of racial discrimination. In support of its motion, the Board attached copies of correspondence either to or from appellant documenting her confrontational style and/or instances of insubordination as well as excerpts from appellant's deposition and that of former employee, John Peeples ("Peeples").
{¶ 8} In her brief opposing the Board's motion, appellant argued that she presented a prima facie case of discrimination and that the Board failed to demonstrate that there was a legitimate nondiscriminatory reason for her termination.2 Attached to her brief were excerpts of several depositions, including that of Dillingham, Peeples and Wilkens, among others. Appellant also moved to strike the Board's documentary evidence claiming that it was not the type of evidence authorized under Civ.R. 56(C). The Board opposed the motion maintaining that its motion included an affidavit by Dillingham, who averred that the appended documents were "true and exact copies" from the Board's files. The Board also filed the depositions of appellant and Peeples.
{¶ 9} The trial court ultimately granted the Board's motion without opinion. Appellant is now before this court and assigns three errors for our review.
{¶ 11} An appellate court reviews a trial court's decision on a motion for summary judgment de novo. Grafton v. Ohio Edison Co. (1996),
{¶ 13} Here, the Board's documentary evidence consisted of several memos between appellant and her immediate supervisors and/or other Board employees as well as excerpts from the depositions of appellant and Peeples.3 Appellant accurately states that where supporting documentary evidence falls outside this rule, the correct method for introducing such evidence is to incorporate it by reference into a properly framed affidavit. See Martin v. Cent. Ohio Transit Auth. (1990),
{¶ 14} A review of the record, however, supports that such an affidavit was part of the Board's documentary evidence. Dillingham, as the affiant,4 averred *66 that the exhibits attached to the Board's motion for summary judgment were "true and exact copies provided from the files of the Board." Although otherwise inartfully stated and lacking in the precision traditionally associated with the drafting of an affidavit, the Board has demonstrated at least minimal compliance with the requirements attendant to a properly framed affidavit. Thus, the trial court properly considered the documentary evidence in support of the Board's motion for summary judgment.
{¶ 15} Appellant's second assignment of error, therefore, is not well taken and is overruled. What remains to be determined, however, is if this evidence is sufficient to justify judgment in the Board's favor as a matter of law.
{¶ 17} In order to prevail on a race discrimination claim brought under to Title VII or R.C. Chapter 4112, a plaintiff must make a prima facie showing that he or she (1) belongs to a racial minority; (2) was discharged; (3) was qualified for the position; and (4) was replaced by, or the discharge permitted the retention of, a person who was not a member of the protected class. See Plumbers Steamfitters JointApprenticeship Commt. v. Ohio Civ. Rights Comm. (1981),
{¶ 18} It is undisputed that appellant belonged to a protected class and that she was terminated from her position. It also appears to be undisputed that appellant was qualified for the position she held. The Board argues, however, that appellant has failed to show that non-protected similarly-situated persons were treated more favorably. Such a showing, however, is an alternative to the *67
fourth element of the McDonnell Douglas/Burdine test for establishing a prima facie case of racial discrimination where it cannot be shown that a protected employee was replaced with an employee outside the protected class. Mitchell v. Toledo Hosp. (C.A. 6, 1992),
{¶ 19} "Although the District Judge found no prima facie case had been established by Plaintiff because of the lack of the fourth `replaced-by-a-"non-protected"-person' element of the McDonnellDouglas/Burdine criteria, 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,
{¶ 20} That is not the case here. Appellant's replacement was an individual outside the protected class and, as such, appellant was not required to resort to an alternative test in order to present a prima facie case of race discrimination. Having satisfied the elements necessary to establish a prima facie case, the burden then shifted to the Board to put forth evidence that there existed a legitimate reason for appellant's dismissal.
{¶ 21} As stated in subsection A, the Board's evidence consisted of several memos demonstrating areas of conflict between appellant and Dillingham and Wilkens as well as several other Board employees. At the very least, the Board maintains that its evidence supports that it was appellant's confrontational style and lack of interpersonal skills that serves as a legitimate reason for her dismissal.
{¶ 22} We acknowledge that the Board's evidence indicates that appellant had difficulty with authority and was confrontational in resolving conflicts within her department. We further acknowledge that such evidence may provide a basis for recommending that her employment be discontinued and consequently serve as a legitimate basis for her dismissal. Nonetheless, the Board has not presented any evidence that ties appellant's confrontational style with its decision to terminate appellant. The Board presented no evidence from any of appellant's supervisors who would have been responsible for recommending her dismissal to the Board. It is true that Wilkens's deposition was taken. Only excerpts, however, were appended as evidence and that was to appellant's brief in opposition. To be sure, Wilkens's testimony supported that he recommended to the Board that it dismiss appellant. While he may have stated his reasons for making such a recommendation at some point during his deposition, the excerpts appended to appellant's brief do not elucidate any such reasons.
{¶ 23} We are, therefore, unwilling to infer lack of discriminatory intent merely because there may have existed a legitimate reason for dismissing appellant. Consequently, the Board has failed to satisfy its burden demonstrating *68 that there existed a legitimate nondiscriminatory reason for appellant's termination. Consequently, summary judgment in its favor was inappropriate.
{¶ 24} Appellant's first assignment of error is well taken and is sustained.
{¶ 26} This Court reviews a trial court's ruling on a motion to quash a subpoena for an abuse of discretion. State ex rel. The V Cos. v.Marshall (1998),
{¶ 27} Civ.R. 45(C) governs the protection of persons subject to subpoenas and provides that a court shall quash a subpoena if, inter alia, it fails to allow a reasonable time to comply. Civ.R. 45(C)(3)(a). Here, we see no abuse of discretion on the part of the trial court. Contrary to the Board's assertions, the record does not support that the trial court had set a discovery cut-off date or, for that matter, a date for trial. Nonetheless, the subpoenaed Board members received their respective subpoenas four days prior to the scheduled deposition. Moreover, the depositions were scheduled to take place just four days prior to the cut-off date for dispositive motions and one week prior to a general election, which is typically a very busy time for the Board.
{¶ 28} Appellant's third assignment of error is not well taken and is overruled. We note, however, that, due to our disposition of appellant's first assignment of error, on remand there should be no impediment to scheduling these Board members' depositions at a time mutually convenient for all involved.
Judgment accordingly.
ANNE L. KILBANE, J., AND DIANE KARPINSKI, J., CONCUR.
