622 N.E.2d 1130 | Ohio Ct. App. | 1993
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *672 Plaintiff-appellant, Carolyn A. Neal, appeals from the directed verdict entered by the trial court in favor of defendants-appellees on her claims for constructive discharge and handicap discrimination by her employer and her employer's agent and representatives. In her seven assignments of error, five of which involve the trial court's entry of directed verdict, Neal contends: (1) the trial court erred in directing a verdict because the trial court, contrary to law, considered weight and credibility and construed inferences; (2) a directed verdict on her handicap-discrimination-based *673 claims was erroneous because she proved retaliation culminating in constructive discharge for filing an Ohio Civil Rights Commission charge; (3) the trial court was precluded from granting a directed verdict on her handicap-discrimination-based claims because she proved discrimination based upon defendants' failure to make reasonable accommodations, thereby shifting the burden to the defendants; (4) the directed verdict was erroneous because reasonable minds could have concluded that the defendants' agent intentionally inflicted emotional distress upon her; (5) the directed verdict created an appearance of impropriety in violation of Canon 2 of the Code of Judicial Conduct because it was granted by a judge employed by one of the defendants; (6) the trial court erred by sua sponte excluding an ex-employee's testimony; and (7) the trial court made its decision on her claim of retaliation for filing a workers' compensation claim, which had been bifurcated from her claims tried to the jury, prior to hearing the evidence. We find none of Neal's assignments of error to be well taken.
Neal was a twenty-six-year employee of Hamilton County. Prior to and during the one-and-one-half-year period upon which her claims are based, she wore a prosthesis on her lower left leg, had severe osteoarthritis of the back and left leg, and was hypertensive. From 1973 until her resignation in 1989, she was employed by the Hamilton County Department of Human Services ("HCDHS") in its payroll office. In 1983 Barbara Turner became her supervisor.
In June 1987 Turner requested a temporary handicapped parking permit for Neal to facilitate her transportation to work while Neal's daughter, who usually provided her with transportation, went on maternity leave. When requested to return the temporary parking permit after her daughter returned from maternity leave because Neal failed to meet the criteria of needing to use a wheelchair or crutches, Neal refused to do so. Subsequently Neal went on medical leave. Upon her return, she took the parking permit without permission and began using it again. When Neal met with Lynn Preuth, Human Resources Director, on March 8, 1988, to discuss the parking permit she became so upset that she fell. On March 11, 1988, Neal filed both an Ohio Civil Rights Commission charge alleging handicap discrimination regarding the permit and a workers' compensation claim for injuries from her fall. The charge was settled when Neal presented a physician's letter stating she was physically incapable of using crutches.
On April 6, 1989, after discovering she would need surgery for carpal tunnel syndrome, Neal informed Turner that she would need at least four weeks' recuperation time. Neal testified Turner "hounded" her to call the doctor to get the date of surgery. Neal called the doctor twice. She was told the doctor would contact her and that there was no need to keep calling. *674
On May 10, 1989, Neal received a memorandum from Preuth requesting her to schedule the surgery after June 2, since it was not an emergency and the only other payroll office employee, Peggy Greeson, had scheduled vacation over the Memorial Day holiday. Neal was asked to notify Preuth and Turner as soon as she had a surgery date. Neal testified that when she received the memorandum she went to Preuth to tell him the surgery was an emergency and Preuth told her she needed a doctor's letter stating it was an emergency or she would not get an approved leave. This requirement of a letter was not stated in the May 10 memorandum. Preuth testified he requested the doctor's letter May 17.
Neal was informed Friday, May 12, at 4:10 p.m. that her surgery was scheduled for May 18. She requested a letter from her physician, but was unable to get a copy of it until May 17. She did not inform Turner or Preuth of the date of surgery until May 17 because she did not have the doctor's letter stating the surgery was an emergency. Upon obtaining the letter she put it on Turner's desk.
Neal received an approved leave. Preuth testified that he believed he had been lenient in accepting both the late notice and the doctor's description of the surgery being "urgent" as an emergency. Turner's concern with the timeliness of notice resulted from HCDHS's need to distribute job duties so payroll could get out.
Neal had the surgery and testified that when she returned to work June 26, 1989, Turner blocked her access to the payroll office and directed her to Preuth's office. Turner and Preuth's designee, Dorothy Topper, met with Neal and presented her with a written reprimand for her late notice of surgery and refusal to call the doctor concerning the surgery date. Neal testified that she was also relieved of her duties and relocated in an area outside the payroll office. There was, however, no change in her salary or her position level.
Preuth testified it was his decision to issue the written reprimand and to reassign duties between Greeson and Neal. He stated their duties were interchangeable because they were cross-trained. He determined Greeson was more reliable and told Turner to give Greeson more high-priority duties such as data entry.
Preuth also testified that, while he believed Neal's failure to provide notice of her surgery date before May 17 was deceitful, dishonest, and insubordinate because she knew they needed the information to staff payroll, the reprimand read "neglect of duty and failure of good behavior" due to Turner's intervention. Turner testified she told Neal that the change in duties occurred because Turner needed someone in that position who was dependable, would cooperate, and would do whatever was needed to get the job done, and that Neal had demonstrated she was unwilling to do this. *675
On June 26, 1989, Turner sent Neal a memorandum asking how they could best accommodate her physical limitations and reminding her a work station had been ordered. On June 28, 1989, Turner sent Neal a memo requesting that Neal contact her directly about equipment needs and informing her that someone had been contacted to alleviate some problems in Neal's work area. On June 28, 1989, Neal sent Turner a memorandum telling her she almost fell and that she did not know her job description. She testified she received a job description on July 31, 1989.
Neal filed a grievance regarding the reassignment of duties and the written reprimand. The reassignment and reprimand were upheld through three of the four steps in a grievance process. Neal failed to complete the fourth step of the grievance procedure.
On August 10, 1989, Neal received a Predisciplinary Conference notice for refusing to file material and becoming loud and belligerent. Upon receipt of the notice, Neal became upset, fell off her chair, and was taken to the hospital by ambulance because of her hypertension.
While on medical leave due to this incident, Neal, at her daughter's insistence, put in for retirement and sent a memo to Preuth's supervisor regarding her intention to retire. Neal's physician testified he had advised her to quit work or change jobs whenever she complained of stress. The only comment from Neal's employer concerning retirement came from Topper, who, upon notice from the Public Employees Retirement System, asked Neal if she wanted to retire.
In her first assignment of error, Neal argues that the trial court considered the weight of the evidence and the credibility of witnesses and construed inferences in its decision to grant defendants' motion for directed verdict. After reviewing the record we conclude the trial court made a thorough analysis of the evidence *676 and correctly followed the requirements of Civ.R. 50(A)(4) in making its determination that there was no evidence of substantial probative value to support Neal's claims. Neal's first assignment of error is overruled.
Neal contends in her second assignment of error that the trial court erred in granting a directed verdict on her claims based on handicap discrimination because she proved discrimination based on retaliation by her employer for the filing of the Ohio Civil Rights Commission charge and that such retaliation resulted in a constructive discharge. Before a claim of constructive discharge can be submitted to the jury, the plaintiff must prove that her working conditions were so difficult or unpleasant that a reasonable person would have felt compelled to resign. United Parcel Serv., Inc. v. Ohio Civ.Rights Comm. (1991),
We hold that Neal failed to provide any evidence of substantial probative value to show that her working conditions were so difficult or unpleasant that a reasonable person in Neal's situation would have felt compelled to resign or that the defendants intended the working conditions imposed would compel a reasonable person in Neal's situation to resign. The evidence demonstrated that Neal and her immediate supervisor had a strained relationship; that Neal received a written reprimand for failing to inform her supervisors of her surgery date as soon as possible; that the request for such notification was reasonable; and that upon her return from surgery Neal and another co-worker were assigned to exchange jobs. There was no demotion of Neal or any salary reduction by HCDHS. Furthermore, it was Neal's daughter who insisted she retire and her physician that recommended she retire or transfer to another department based on her hypertension and perceived job-related stress. Construed most strongly in Neal's favor, this evidence does not support Neal's allegation of constructive discharge.
To prevail on a claim for discrimination the employee must establish by a preponderance of the evidence a prima facie case of discrimination. The burden of production then shifts to the employer to provide some legitimate, nondiscriminatory reason for its conduct. The burden then shifts back to the employee to show by a preponderance of evidence the employer's reasons were a pretext for discrimination. McDonnell Douglas Corp. v. Green
(1973),
To present a prima facie case of employment discrimination, the employee must establish: (1) she is within a protected "suspect" class, e.g., handicapped; (2) she was qualified for the job that she was performing and satisfied the normal requirements of the work; (3) she was in fact discharged; (4) she was discharged although other nonhandicapped employees were retained or not disciplined for similar conduct that resulted in the charging party's discharge. See, e.g., In re Brantley
(1987),
In this case the trial court determined "there is not one iota of evidence" that any action taken by defendants was done because of Neal's handicap. Having examined the record, we agree that Neal's evidence failed to establish a prima facie case of handicap discrimination because, as explained previously, she did not prove that she was discharged. Furthermore, no evidence was offered to suggest that other nonhandicapped employees were retained or not disciplined for conduct similar to Neal's. In other words, there is no evidence of substantial probative value to support Neal's handicap-discrimination claim.
We hold that there is likewise no evidence to support Neal's retaliatory-discharge claim. To establish a prima facie case of retaliatory discharge a plaintiff must show, in addition to the elements required to establish a prima *678 facie discrimination case, that: (1) she engaged in a protected activity; (2) the employer knew of her participation in the protected activity; and (3) the alleged retaliatory action followed the plaintiff's participation in the protected activity sufficiently close in time to warrant an inference of retaliatory motivation. If this burden is met the employer must then articulate a legitimate, nondiscriminatory reason for its action and the plaintiff must then show the reason to be pretextual. The plaintiff cannot prevail if it appears from the evidence that the employer would have made the same decision regardless of plaintiff's participation in the protected activity. Ohio Civ.Rights Comm. v. Cincinnati Bd. of Edn. (Oct. 30, 1985), Hamilton App. No. C-840149, unreported, 1985 WL 11519.
Neal failed to meet the burden of establishing a prima facie case of retaliatory discharge in that there was no evidence of any retaliatory action against her for filing an Ohio Civil Rights Commission charge. Neal argues that following her civil rights charge Turner evaluated her unfairly. According to the evidence, her 1987 evaluation, completed in April 1988, and her 1988 evaluation were comparable to previous evaluations. There is no evidence that Neal was demoted. Both Neal and her co-employee were account clerks with interchangeable jobs. The duties Neal performed, after the reassignment, were always part of her job description. Neal's desk was moved from the payroll office because there was not enough room and the duties to be performed by the co-employee required confidentiality and an uninterrupted environment. There was no salary reduction. Moreover, the evidence, viewed most strongly in favor of Neal, establishes that the defendants' determination to shift job responsibilities in the payroll office was based on a legitimate business concern prompted by the need for a dependable, cooperative, reliable employee in Neal's original position. In other words, the evidence supports a finding that the defendants would have made the same decision if Neal had not filed the Ohio Civil Rights Commission charge. Because of her failure to provide evidence of any substantial probative value to support her discharge and discrimination claims, we overrule Neal's second assignment of error.
"(1) That the defendant either intended to cause the plaintiff emotional distress or that he knew or should have known that his actions would cause the plaintiff emotional distress;
"(2) That the defendant's conduct was `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community' [Citations omitted.];
"(3) That the defendant's conduct was the proximate cause of plaintiff's psychic injury; and
"(4) That the resultant emotional distress was serious, such that `a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances * * *.' [Citations omitted.]" Uebelacker v. CincomSys., Inc. (1988),
Neal contends that because of her weakened physical condition and hypertension the written reprimand, reassignment of job duties, and delivery of a predisciplinary conference notice for failing to follow her supervisor's orders and for becoming loud and belligerent were actions a reasonable person could conclude were done with the intent to inflict emotional distress. We hold that Neal failed to prove that her employers' conduct was such that they intended to cause Neal emotional distress or knew or should have known that the legitimate business steps they took would cause Neal emotional distress. Further, the conduct described was not so outrageous in character as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. In fact, the actions taken were according to the personnel manual or for the purpose of assuring that the payroll office would run efficiently. There is no evidence that Neal's alleged emotional distress was serious such that "a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances." Paugh v. Hanks *680
(1983),
Whether to exclude or admit evidence sua sponte is discretionary with the court. Oakbrook Realty Corp. v. Blout
(1988),
The parties subsequently filed a second stipulation and waiver of hearing concerning that claim. Following review of the stipulation and the evidence submitted at trial on Neal's first, third, and fifth causes of action, the trial judge found no retaliation for filing the workers' compensation claim. This finding was entered on the court's docket separately from the entry granting directed verdict. We find no error since the record reflects no final determination was made on the retaliation claim until all evidence had been heard.
The judgment of the trial court is affirmed.
Judgment affirmed.
KLUSMEIER, P.J., HILDEBRANDT and GORMAN, JJ., concur.