Tamara Brogan, et al. v. Family Video Movie Club, Inc.
Court of Appeals No. L-13-1283
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
January 9, 2015
2015-Ohio-70
JENSEN, J.
Trial Court No. CI0201203613; Patricia Horner, for appellant; Steven J. Forbes, for appellee.
JENSEN, J.
{¶ 1} Plaintiffs-appellants, Tamara Brogan and Cynthia Lentz, appeal the judgment of the Lucas County Court of Common Pleas, journalized December 4, 2013, which granted summary judgment in favor of defendant-appellee, Family Video Movie Club, Inc. For the reasons that follow, we affirm.
{¶ 2} Cynthia Lentz and Tamara Brogan were both employed by Family Video. Lentz first became employed by Family Video in August of 1998 when she was hired as a manager-in-training. She was promoted to store manager in December of that year. At some point, Lentz resigned, was later rehired, then resigned again in May of 2006. She was rehired in July of 2007, again as a store manager.
{¶ 3} In September of 2009, the store Lentz managed was robbed while Lentz was working. She was terminated for failing to comply with Family Video‘s procedures for handling a robbery situation. According to Family Video, Lentz violated its policy by following the thief as he exited the store, at which time he turned around and assaulted her, causing injury to Lentz. Upon her termination, Lentz was immediately replaced by Alex King, a male. Lentz implored the assistance of Bob Kording, an executive vice-president with the company, who quickly facilitated her rehiring. However, because her position had been filled, she was transferred to another Family Video location. At the time of her re-hire, concerns were expressed to her by regional manager, Jason Juhasz, about her attitude toward customers, her tendency to complain about company changes to hourly employees instead of to her managers, and her pushing-back when presented with goals. Those criticisms had been passed along to Juhasz by Grant Davis, a division manager to whom Lentz directly reported. Lentz was told that she would be terminated if she failed to meet her managers’ expectations for improvement.
{¶ 5} Brogan‘s employment with Family Video began December 22, 2004. She was promoted to store manager in 2006. In August of 2008 she was demoted to assistant manager, and she was ultimately terminated on April 27, 2011.
{¶ 6} As with Lentz, Davis was the district manager for the stores at which Brogan worked. In the months preceding her demotion to assistant manager, he issued a number of write-ups. In February of 2008, he complained that Brogan failed to organize the employee restroom and had not exhibited strong management skills due to her failure to delegate. One week in May of 2008, she did not work her required 44 hours during the
{¶ 7} After her demotion, it appears that approximately two-and-a-half years passed with no write-ups. But in February of 2011, Davis disciplined Brogan for being late for five shifts in January. In March of 2011, Davis complained that Brogan struggled to complete day-to-day tasks and did little to train the staff. In April of 2011, she was disciplined for an incident in March in which her shift ended at 12:30, but she stayed until 1:30 to complete assigned tasks. Based on these incidents relayed to him by Davis, John Kobalanski, a regional manager, terminated Brogan‘s employment on April 27, 2011. She was replaced by a woman, Amanda Palmer.
{¶ 8} On June 4, 2012, Brogan and Lentz filed a complaint alleging violations of Ohio‘s wage and hour laws, wrongful discharge in violation of public policy, violations
{¶ 9} On April 12, 2013, after taking appellants’ depositions and exchanging discovery, Family Video moved for summary judgment on all of appellants’ claims. After being granted a series of extensions, appellants filed a brief in opposition to the motion on June 10, 2013, and an amended opposition on September 4, 2013. Those briefs addressed only the gender discrimination claims. The trial court conducted a hearing on October 31, 2013, and at that hearing, appellants’ counsel confirmed that appellants were withdrawing all claims but the gender discrimination claim.
{¶ 10} At the October 31, 2013 hearing, Brogan argued that she had been demoted on the basis of her gender. Appellants had not pled this in their complaint, so the court questioned whether it could consider that claim and instructed the parties to submit supplemental briefing addressing whether that allegation could be properly considered. The court also instructed the parties to submit supplemental briefing concerning the
{¶ 11} The parties submitted their supplemental briefs on November 8, 2013. Family Video indicated its position that Brogan should be permitted to amend her complaint to add allegations relating to the demotion, stated that it would not be prejudiced, but denied that the demotion was the result of discrimination. Although it conceded that Family Video could be held liable if Davis was found to have demoted Brogan based on her gender, it contended that in order for Family Video to be held liable for Lentz‘s termination, Lentz would have to show that Davis intended to convince Juhasz to terminate her on the basis of her gender and that Davis’ conduct caused Juhasz to act. Appellants did not address the issue of whether Family Video could be held liable where the supervisor accused of discrimination did not himself carry out the adverse employment action.
{¶ 12} In an opinion file-stamped November 27, 2013, the trial court granted summary judgment to Family Video on all claims. Appellants filed this timely appeal, assigning the following error for our review:
I. THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S [sic] MOTION FOR SUMMARY JUDGMENT.
II. Standard of Review
{¶ 13} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978),
Civ.R. 56(C) .
{¶ 14} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact.
III. Law and Analysis
{¶ 15} Under
{¶ 16} A discrimination claim may be proven by direct evidence or by circumstantial evidence. Silberstein v. Montgomery Cty. Community College Dist., 2d Dist. Montgomery No. 23439, 2009-Ohio-6138, ¶ 32. “To establish a discrimination claim based upon circumstantial evidence, a plaintiff must initially demonstrate a prima facie case of discrimination.” Id., quoting Temple v. City of Dayton, 2d Dist. Montgomery No. 20211, 2005-Ohio-57, ¶ 85. This requires the plaintiff to show that (1) she was a member of a statutorily protected class; (2) she was subjected to an adverse employment action; (3) she was qualified for the position; and (4) she was replaced by, or that the removal permitted the retention of, a person not belonging to the protected class. Starner v. Guardian Indus., 143 Ohio App.3d 461, 471, 758 N.E.2d 270 (10th Dist.2001), citing Tessmer v. Nationwide Life Ins. Co., 10th Dist. Franklin No. 98AP-1278, 1999 WL 771013 (Sept. 30, 1999).
A. Cynthia Lentz
{¶ 18} In granting summary judgment on Lentz‘s claim, the trial court found that Lentz had established a prima facie case of sex discrimination because she was able to show that she was a member of a protected class, was discharged, was qualified for her position, and was replaced by a person outside the class. However, the court found that Family Video met its burden to provide a legitimate, non-discriminatory reason for Lentz‘s termination—the problems identified in the write-ups. The court concluded that Lentz failed to demonstrate that Family Video‘s articulated reasons for its decision were pretextual. It observed that the only evidence of pretext advanced by Lentz was an assertion at her deposition that male employees had been tardy but were not disciplined. The court held that Lentz failed to identify these males or show that they were similarly-situated to her. The primary issue on appeal with respect to Lentz‘s gender
{¶ 19} At her deposition, Lentz addressed many of Davis’ criticisms of her performance. For instance, with respect to being late on Fridays, she testified that when she was rehired, she verbally discussed with then-regional manager, John VanSlooten, that she had child care issues that would cause her to be late for some Friday shifts. VanSlooten allegedly told her that it was not a problem as long as the store was adequately staffed. With respect to allegations that she left work early in June of 2007, she claimed that Davis had given her permission to leave early, but asked that she send an email when she left. Although she forgot to send the email, she saw Davis at a traffic light as she was leaving and they discussed through the open windows that she had forgotten to send the email, which did not appear to be a problem with Davis. Concerning the “rude” voicemail, she explained that her grandmother had just died and she was under a lot of stress. She apologized for the voicemail. And with respect to her failure to complete a report, she testified that Davis assigned the report during a managers’ meeting and because she was waiting on customers, Davis knew that she had missed the part of the meeting when he assigned that particular task.
{¶ 20} The specific reasons set forth on Lentz‘s employee termination form were “lack of respect, acceptance & positive attitude * * * reflected in the disciplinary forms
{¶ 21} To carry her ultimate burden of proof under the first method for showing pretext, Lentz must present evidence that Family Video‘s proffered reasons for her termination had no basis in fact. However, “[a] reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” Knepper v. Ohio State Univ., 10th Dist. No. 10AP–1155, 2011-Ohio-6054, ¶ 12. Although Lentz provided what appear to be reasonable explanations for much of the conduct cited by Davis, she does not deny that these particular incidents occurred. Because she does not contend that the information contained in the employee termination form and related disciplinary action forms are factually false, she cannot establish the first showing as a matter of law. See Frick v. Potash Corp. of Saskatchewan, Inc., 3d Dist. Allen No. 1-09-59, 2010-Ohio-4292, ¶ 46; Singleton v. Select Specialty Hosp.-Lexington, Inc., 391 Fed.Appx. 395, 400 (6th Cir.2010); Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir.2000).
{¶ 22} To meet her burden under the second type of showing, Lentz must establish that although the employer‘s legitimate, nondiscriminatory reasons are factually correct and such facts could motivate discharge, an illegal motivation for termination was more likely than the reasons proffered by Family Video. Mittler v. OhioHealth Corp., 10th Dist. Franklin No. 12AP-119, 2013-Ohio-1634, ¶ 48. In considering Lentz‘s claim, we “are not to judge whether [Family Video] made the best or fairest decision, but to
{¶ 23} Finally, the third way of showing pretext “ordinarily, consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.” (Internal citations and quotations omitted.) Warden v. Ohio Dep‘t of Natural Res., 10th Dist. Franklin No. 13AP-137, 2014-Ohio-35, ¶ 38. “That is, if an employer claims it fired the protected class member for certain misconduct, but the employer did not fire a person outside the class for essentially the same conduct, the fact finder could infer the misconduct was not the real motivation for the discharge.” Id. Here, Lentz claims that others—including two male employees—were consistently late but were not disciplined. “To establish pretext
{¶ 24} We find that Lentz has failed to create a genuine issue of material fact as to whether Family Video‘s reasons for terminating her were pretextual, thus, the trial court did not err in granting Family Video‘s motion for summary judgment.
B. Tamara Brogan
{¶ 25} Turning to Brogan‘s claim, in granting summary judgment to Family Video, the trial court held that Brogan failed to establish a prima facie case of gender discrimination because she was replaced by a woman. It should be observed, however, that the fourth requirement of a prima facie discrimination case—i.e., that the plaintiff was replaced by someone outside the protected class—can also be established by showing, in addition to the first three elements, that a comparable non-protected person was treated better. (Internal quotations omitted.) Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th Cir. 1992). To establish the “treated better” element, “the plaintiff must
{¶ 26} Brogan‘s claim with respect to her April 2011 termination fails regardless of whether the “replaced” or “treated better” element is used. When she was terminated, she was replaced by a female. Further, she has advanced no evidence establishing that employees outside the protected class were treated better.
{¶ 27} As to her claim as it relates to her demotion, the trial court refused to consider Brogan‘s claim that she was demoted in order to promote a male, Alex King, because it was not pled in her complaint. Although Family Video conceded in its supplemental briefing following the October 31, 2013 hearing that appellants could properly amend their complaint to include allegations concerning Brogan‘s demotion, the trial court refused to consider the demotion because appellants did not move to amend the complaint after learning that Family Video did not object.
{¶ 28} With respect to her gender discrimination claim, Brogan‘s complaint alleged as follows:
Brogan suffered an adverse employment action by way of her termination as part of a scheme to eliminate her employment because of her gender. She further states that her termination allowed Defendant to retain a male employee in her stead; similarly-situated male employees were not subjected to discharge as was Plaintiff Brogan, despite her exemplary employment record.
The Ohio Civil Rules require “notice pleading” rather than “fact pleading.” “Notice pleading” under
Civ.R. 8(A) and8(E) merely requires that a claim concisely set forth only those operative facts sufficient to give “fair notice of the nature of the action.” Except in very narrow circumstances, such as fraud, a plaintiff is not required to plead the operative facts of his or her case with particularity. Plaintiff is not required to prove his or her case at the pleading stage. (Internal citations omitted.)
Columbia Gas of Ohio, Inc. v. Robinson, 81 Ohio Misc. 2d 15, 15-17, 673 N.E.2d 701 (M.C.1995).
{¶ 30} Although it would have been advisable to include specific facts in her complaint relating to her demotion, it did not change the nature of the action—her claim remained that she suffered an adverse employment action on the basis of her gender when
{¶ 31} In its November 8, 2013 filing in the trial court, Family Video stated:
After reviewing the issue, * * * Family Video agrees that Ms. Brogan should be permitted to amend her Complaint to add this allegation. See
Oh. Civ. R. 12 (stating that leave of court to amend a pleading “shall be freely given when justice so requires“). While Family Video‘s Motion for Summary Judgment focused on her termination, it addressed her demotion claims in its Reply and will not be prejudiced by the Court‘s consideration of that claim.
{¶ 32} Brogan‘s counsel apparently understood things differently. She believed that Family Video had conceded that the complaint was sufficient to encompass the demotion—not that amendment of the complaint was necessary.
{¶ 33} In its decision, the trial court declared that it would not consider the demotion claim because Brogan did not file a motion to amend in the 19 days between the filing of the briefs and the issuance of the court‘s ruling. We conclude that this was
{¶ 34} Had the trial court provided Brogan an opportunity to amend or move to amend her complaint to add allegations respecting her demotion, we assume it would have concluded that she established a prima facie case of gender discrimination when she was demoted and replaced by a male. This would have required the court to next determine whether Family Video articulated a legitimate, non-discriminatory reason for demoting Brogan.
{¶ 35} The disciplinary action forms leading to Brogan‘s demotion indicate Davis’ concerns: (1) she failed to organize the employee restroom (which served as a storage area for the store‘s promotional artwork) as Davis directed her to do; (2) she was unorganized and failed to properly delegate; (3) in May of 2008, she failed to work the required 44 hours during the store‘s hours of operation; and (4) she was ineffective as a manager and did not show improvement despite knowing of Davis’ concerns. According to a July 2008 email, Davis spoke with Brogan about additional concerns: poor sales, and failing to hold her team accountable, failing to make “we miss you” calls, not managing her time well, failing to organize and plan, not setting a good example for her team, failing to follow-up with employees and to motivate them. Although Brogan
{¶ 36} Brogan does assert that Davis treated King more favorably because Davis did not discipline King for failing to issue a write-up to Brogan for “working off the clock.” To put it in context, King, who was Brogan‘s manager, informed Davis that he discovered that Brogan had on a couple of occasions worked after the store closed to catch up on tasks. Brogan‘s position is that Davis should have disciplined King for poor managerial skills exhibited by his failure to discipline Brogan himself. Davis testified that he expected King to inform him if Brogan worked off the clock because it was an issue that Davis had discussed with Brogan in the past. We find that this particular example does not rise to the level of creating a genuine issue of material fact that Davis treated males more favorably than females.
{¶ 37} While we recognize that the trial court‘s analysis of Brogan‘s claim did not extend beyond determining whether she made a prima facie case, “[i]n our de novo review of summary judgment matters, we may still inquire whether the judgment may be affirmed on alternative grounds.” (Citations omitted.) Howell v. Whitehurst Co., 6th Dist. Lucas No. L-05-1154, 2005-Ohio-6136, ¶ 20-21 (“W[e] conclude that, presuming appellant can establish a prima facie case, we can alternatively affirm summary judgment
{¶ 38} We find Lentz‘s and Brogan‘s sole assignment of error not well-taken.
IV. Conclusion
{¶ 39} The trial court properly granted summary judgment in favor of Family Video. We, therefore, affirm the December 4, 2013 judgment of the Lucas County Court of Common Pleas. The costs of this appeal are assessed to appellants pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Arlene Singer, J.
James D. Jensen, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.