Veal v. Upreach, L.L.C.Veal v. Upreach, L.L.C.
Rendered on October 20, 2011
The Isaac Firm L.L.C., Kendall D. Isaac, and Lasheyl N. Stroud, for appellant.
Dinsmore & Shohl, LLP, and Jan E. Hensel, for appellees.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶1} Appellant, Monica Veal, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of appellees, Upreach, LLC (“Upreach“) and Learning Never Ends, LLC (“LNE“). For the following reasons, we affirm.
{¶3} On August 4, 2005, Upreach hired appellant, an African-American female, as a support specialist, responsible for supervising Upreach consumers in their homes and transporting them to various LNE programs. Appellant eventually became dissatisfied with the position and, in April 2007, discussed the possibility of a promotion with Gourley. Based upon appellant‘s stated interests, Gourley and Swegheimer specifically created an administrative assistant position for her, which appellant accepted on April 27, 2007. In accepting the promotion, appellant signed a document acknowledging that the position required her to “[d]ress in business casual attire to ensure UPREACH LLC is represented in a professional manner at all times.” (Gourley Affidavit, Exhibit A, ¶8.)
{¶4} By way of affidavit, Gourley stated that appellant complained about the dress code soon after she accepted the administrative assistant position and, consequently, “developed a very negative attitude” in the workplace. (Gourley Affidavit ¶12.) After appellant had made several complaints about the business-casual requirement, Gourley asked her if she would accept a position with LNE that did not have a dress code. (Gourley Affidavit ¶13.) Appellant accepted and began her new position with LNE on June 11, 2007. According to Gourley, appellant‘s negative attitude continued in her position with LNE. (Gourley Affidavit ¶14.) Gourley indicated that appellant refused to cooperate with supervisors, read personal books during work, used
{¶5} On June 26, 2007, Gourley and Swegheimer met with appellant in response to appellant‘s complaint that she was unfairly criticized by a coworker. (Gourley Affidavit ¶15-16.) At one point in the discussion, appellant said that she had been promised “growth” in the company and that it had been taken from her “unjustly.” (Gourley Affidavit ¶16.) When Gourley reminded appellant that she voluntarily accepted the position with LNE, appellant became angrier and stated that she would not talk to Gourley or to anyone else in the office anymore. (Gourley Affidavit ¶16.) Gourley construed this statement as “a direct act of insubordination” and became concerned with appellant‘s ability to work for LNE. (Gourley Affidavit ¶17.) In the following weeks, Gourley contacted Timothy Pitts, appellant‘s direct supervisor at LNE, to determine whether appellant‘s behavior had improved. Pitts reported that appellant maintained her negative attitude and refusal to accept direction. (Gourley Affidavit ¶18.) Upreach terminated appellant in July 2007. (Gourley Affidavit ¶19.)
{¶6} Appellant filed a complaint with the Ohio Civil Rights Commission (“OCRC“) on July 17, 2007. The complaint alleged racial discrimination, gender discrimination, and retaliation. The OCRC investigated the charges and, on May 1, 2008, issued a report finding it “[p]robable that Respondent1 has engaged in practices unlawful under Section 4112 of the Ohio Revised Code.”
{¶8} Appellees moved for summary judgment, arguing, inter alia, that appellant failed to establish a prima facie case of sex discrimination, race discrimination, and retaliation. In support of the motion, appellees attached Gourley‘s affidavit, the document in which appellant acknowledged the dress code for the administrative assistant position, and Pitts’ report recommending appellant‘s termination.
{¶9} Appellant filed a memorandum opposing appellees’ motion for summary judgment. To support the allegations contained in her memorandum, appellant attached her own affidavit; however, the affidavit pertained only to her failure-to-pay overtime claim under the
{¶10} The trial court granted appellees’ motion for summary judgment as to the claims of disparate-treatment discrimination and retaliation. The trial court did not dismiss appellant‘s remaining
[I.] Judge erred in dismissing
ORC 4112.02 retaliation discrimination claim.[II.] Judge erred in dismissing
ORC 4112.02 sex discrimination claim.[III.] Judge erred in dismissing
ORC 4112.02 race discrimination claim.
{¶12} We review the trial court‘s grant of summary judgment de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, ¶8. To obtain summary judgment, the movant must show that (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party and that conclusion is adverse to the nonmoving party.
{¶13} The movant bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once the moving party meets this initial burden, the nonmoving party has a reciprocal burden outlined in
{¶14} We begin by addressing an argument made by appellant at the end of her brief, although the argument is not separately assigned as error. See
{¶15} In her first assignment of error, appellant challenges the trial court‘s decision to dismiss her claim of retaliation under
{¶16} Absent direct evidence of retaliatory intent, Ohio courts analyze retaliation claims using the evidentiary framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, a case
{¶17} Once a plaintiff establishes a prima facie case, the burden then shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for its actions. Temesi at ¶14, quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer satisfies this burden, the burden shifts back to the complainant to demonstrate “that the proffered reason was not the true reason for the employment decision.” Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 256, 101 S.Ct. 1089, 1095.
{¶18} An employee‘s activity is “protected” for purposes of
{¶19} In the present case, appellant did not specifically allege or present evidence establishing that she was engaged in a protected activity under
{¶20} In her second and third assignments of error, appellant claims that the trial court erred by dismissing her claims of disparate-treatment discrimination on the basis of race and gender under
{¶21} Under the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination. The plaintiff must present evidence that: (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) she was qualified for the position in question, and (4) either she was replaced by someone outside the protected class or a non-protected similarly situated person was treated better. Id., 411 U.S. at 802, 93 S.Ct. at 1824. Once a plaintiff has established a prima facie case, the burden of production shifts to the employer to present evidence of some legitimate, nondiscriminatory reason for its action. Id. If the employer carries this burden, then the plaintiff must demonstrate that the reason the employer offered was not its true reason, but was a pretext for discrimination. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
{¶22} We begin by addressing appellant‘s second assignment of error involving the dismissal of her gender-discrimination claim. In dismissing appellant‘s claim, the trial court found that appellant failed to present evidence that she suffered an adverse employment action necessary for a prima facie case. We agree.
{¶23} Generally, an “adverse employment action” is a materially adverse change in the terms and conditions of the plaintiff‘s employment. Canady v. Rekau & Rekau, Inc., 10th Dist. No. 09AP-32, 2009-Ohio-4974, ¶25, citing Michael v. Caterpillar Financial Servs. Corp. (C.A.6, 2007), 496 F.3d 584, 593. Employment actions that result in mere inconvenience or an alteration of job responsibilities are not disruptive enough to constitute adverse employment actions. Canady at ¶25, citing Mitchell v. Vanderbilt Univ. (C.A.6, 2004), 389 F.3d 177, 182; Samadder v. DMF of Ohio, Inc., 154 Ohio App.3d 770, 2003-Ohio-5340, ¶38. Instead, the action must constitute “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth (1998), 524 U.S. 742, 761, 118 S.Ct. 2257, 2268.
{¶24} Upon review of the record, we find that appellant failed to sufficiently allege or present evidence of an adverse employment action. Appellant‘s complaint alleged only that “[s]imilarly situated employees were not held to the same dress code standard” that was imposed on her when she accepted the administrative assistant position on April 27, 2007. (Complaint ¶15.) Then, in the statement of facts of her memorandum opposing summary judgment, appellant seemed to claim that her gender caused her to be “demoted from the administrative position to working in a lower level capacity solely for LNE.” (Memorandum 4.) However, this “demotion” claim lacks evidentiary support. Appellant admitted that she voluntarily “accepted” the LNE position because it did not require her to dress in a business casual manner. (Deposition 79-80.) To the extent appellant claims that the business-casual dress requirement constitutes an adverse employment action, such a claim would fail because she was aware of the dress code when she previously accepted the administrative assistant position. (Deposition 71-72.) Because appellant failed to present evidence that she suffered an adverse employment action, she did not establish a prima facie case of gender discrimination under
{¶25} Accordingly, appellant‘s second assignment of error is overruled.
{¶27} First, as explained above, claims of disparate-treatment discrimination generally fall under the burden-shifting analysis established in McDonnell DouglasUpshaw v. Ford Motor Co. (C.A.6, 2009), 576 F.3d 576, 584-85, quoting Grizzell v. Columbus Div. of Police (C.A.6, 2006), 461 F.3d 711, 719; see also Brown v. Worthington Steel, Inc., 10th Dist. No. 05AP-01, 2005-Ohio-4571, ¶13.
{¶28} Under the McDonnell Douglas framework, appellant has failed to present evidence that she suffered an adverse employment action. As the trial court correctly determined, appellant never formally applied for the project manager position. In her complaint and her memorandum opposing summary judgment, appellant alleged only that she was interested in a promotion and that she made a formal request to “discuss” the possibility of a promotion with Gourley and Swegheimer. (Complaint ¶7; Memorandum 2.) In describing the meeting during her deposition, appellant stated that
{¶29} Appellant also failed to satisfy McDonnell Douglas analysis because she did not present evidence that she was qualified for the position. The record indicates that the position required a four-year college degree in a related field and at least four years of experience in the field of developmental disabilities. (Gourley Supplemental Affidavit, Exhibit C.) Appellant did not, by way of allegation or evidentiary support, prove that she satisfied these requirements.
{¶30} Moreover, appellant presented nothing to show that Pat Gourley, Cara Williams, and Patrick Selby were similarly situated employees. As evidenced by the job description forms signed by each employee, neither Pat Gourley nor Cara Williams were promoted to the position of project manager. Pat Gourley was employed as a human resources manager, a job which required a four-year college degree, a minimum of five years in a supervisory position, and five years of experience in human resources work. (Gourley Supplemental Affidavit, Exhibit A.) Cara Williams was hired as a social worker and, as such, was required to be designated as a licensed social worker with at least one year of experience in the mental retardation and developmental disabilities or other related field. (Gourley Supplemental Affidavit, Exhibit A.) Although Patrick Selby
{¶31} Appellant also claims racial discrimination under a “mixed-motive” theory. While it is less than settled whether mixed-motive claims are viable in the context of
{¶32} Accordingly, appellant‘s third assignment of error is overruled.
{¶33} Having overruled appellant‘s first, second, and third assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and CONNOR, JJ., concur.
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