[Cite as Love v. Columbus, 2019-Ohio-620.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Carlton Love,                                      :

                Plaintiff-Appellant,               :
                                                                    No. 17AP-696
v.                                                 :            (C.P.C. No. 16CV-3490)

City of Columbus, et al.                           :           (REGULAR CALENDAR)

                Defendants-Appellees.              :



                                             D E C I S I O N

                                  Rendered on February 21, 2019


                On brief: Law Office of John C. Camillus, LLC, and John C.
                Camillus for appellant.

                On brief: [Zachary M. Klein], City Attorney, Wendy S. Kane,
                and Susan E. Thompson, for appellees.

                 APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Plaintiff-appellant, Carlton Love, appeals from a Franklin County Court of
Common Pleas' judgment which granted summary judgment motion to defendants-
appellees, the City of Columbus ("the city") and Tatyana Arsh (collectively, "appellees") on
all of Love's claims for discrimination and retaliation. For the following reasons, we reverse
the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} Love is an African-American who began working for the city in 1992 as an
engineer aide. Subsequently, he was promoted to a pipeline locator and was responsible
for locating underground utility lines. Requests to mark utility lines are commonly referred
to as "tickets" or "OUPS tickets." (Sarff Aff. at ¶ 3, attached to Apr. 25, 2017 Mot. For Summ.
Jgmt.) Love was a member of the American Federation of State, County, and Municipal
Employees, Ohio Council 8, Local 1632 ("Union"). Cheryl Roberto was the Director of
No. 17AP-696                                                                            2


Public Utilities ("the department") in 2006 and she moved the department to the Ohio
Utilities Protection Service ("OUPS"). At that time, Love alleges that Roberto met with 50-
60 employees and promised them a pay raise. Roberto told Love that even though he would
be responsible for more job duties because he was responsible for marking water, sewer,
and electric lines more than just water lines as previously, he would receive
commensurately more pay.
       {¶ 3} Subsequently, Roberto left her employment and defendant, Tatyana Arsh,
became the Director of Public Utilities. Love learned he would not be receiving a pay raise
other than the negotiated pay raises pursuant to the collective bargaining agreement. Love
testified in his deposition that he complained to Deputy Director Mark Kouns and the city's
Equal Employment Opportunity ("EEO") officer, Dr. Matthews, two times each, that he felt
he was not receiving the promised raises because of his race.
       {¶ 4} Love testified that in 2008, his supervisor, Bill Stover, threatened him and
used a derogatory racial term. After an investigation, Stover was charged with violations of
City of Columbus Central Work Rules 2, 8, and 10. Stover resigned on December 8, 2008.
       {¶ 5} Prior to Love's complaint against Stover, the department began receiving
complaints from inspectors and contractors that Love was not properly marking utility lines
at various job sites. A water line was hit and damaged, costing approximately $50,000 to
repair. Disciplinary charges were filed against Love for violating Central Work Rules 1, 6,
and 7 (Dishonesty, Insubordination, and Neglect of Duty). In July 2008, Love was charged
with violating Central Work Rules 6 and 7 (Insubordination and Neglect of Duty) because
he failed to complete a work ticket. Later that month, Love was again charged with
violations of Central Work Rules for failure to properly mark a water line that was hit and
damaged.
       {¶ 6} Love entered into a Last Chance Agreement on October 8, 2008 and admitted
engaging in the conduct described in the three violations. The Last Chance Agreement
provides that if Love was found guilty of violating another work rule during the three years
the Last Chance Agreement was in effect, his employment would be terminated.
       {¶ 7} In September 2010, Love's supervisor began receiving complaints from
inspectors and contractors regarding Love not marking utility lines properly. There were
five separate incidents involving a mismarked line or incomplete marking. After an
No. 17AP-696                                                                           3


investigation, charges were filed against Love for violating Central Work Rules 1, 6, and 7
(Dishonesty, Insubordination, and Neglect of Duty).
       {¶ 8} A city Labor Relations Hearing Officer conducted a disciplinary hearing on
November 9, 2010. As a result of the hearing, the Labor Relations Hearing Officer found
Love guilty of the charges and, therefore, ordered Love's employment terminated, effective
November 19, 2010.
       {¶ 9} The Union filed a grievance to challenge the work rule violations. On January
10, 2011, a Step 2 grievance hearing was held, conducted by an employee of the city.
Following the hearing, the hearing officer found Love violated the work rules and upheld
his termination on January 18, 2011. The Union did not pursue any further appeals.
       {¶ 10} Love filed a complaint against the city and Tatyana Arsh in the Franklin
County Court of Common Pleas alleging race discrimination and retaliatory discharge.
Love dismissed the case and refiled it on April 11, 2016. He filed an amended complaint,
alleging race discrimination and retaliation. The city and Arsh filed a joint motion for
summary judgment.       The trial court granted the motion for summary judgment on
August 31, 2017.
II. ASSIGNMENTS OF ERROR
       {¶ 11} Love filed a timely notice of appeal and raised the following assignment of
error for our review:
              The Trial Court erred in granting summary judgment for the
              Defendants on Plaintiff's claim for race discrimination.
III. STANDARD OF REVIEW
       {¶ 12} The trial court granted appellees' motion for summary judgment under Civ.R.
56(C), which requires that:
              Summary judgment shall be rendered forthwith if the
              pleadings, depositions, answers to interrogatories, written
              admissions, affidavits, transcripts of evidence, and written
              stipulations of fact, if any, timely filed in the action, show that
              there is no genuine issue as to any material fact and that the
              moving party is entitled to judgment as a matter of law.
       {¶ 13} In Rose v. Ohio Dept. of Rehab. & Corr., 173 Ohio App.3d 767, 2007-Ohio-
6184, ¶ 18 (10th Dist.), we described our standard of review for motions for summary
judgment:
No. 17AP-696                                                                                4


              Appellate review of summary judgment motions is de novo.
              Helton v. Scioto County Bd. of Comm'rs. (1997), 123 Ohio
              App.3d 158, 162, 703 N.E.2d 841. When reviewing a trial
              court's decision granting summary judgment, we conduct an
              independent review of the record, and the appellate court
              "stands in the shoes of the trial court." Mergenthal v. Star
              Banc Corp. (1997), 122 Ohio App.3d 100, 103, 701 N.E.2d 383.
When we review a trial court's grant of summary judgment we use the same standard of
review as the trial court used. Freeman v. Brooks, 154 Ohio App.3d 371, 2003-Ohio-4814,
¶ 6 (10th Dist.), citing Maust v. Bank One Columbus, N.A., 83 Ohio App.3d 103, 107 (10th
Dist.1992), jurisdictional motion overruled, 66 Ohio St.3d 1488 (1993). Accordingly, our
appellate review of summary judgment is in effect a second review according to the same
standards applied by the trial court and based on the record and the law.
       {¶ 14} To prevail on a motion for summary judgment, the moving party must
demonstrate that when the evidence is construed most strongly in favor of the nonmoving
party, no genuine issue of material fact remains to be litigated and that the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Harless v. Willis Day Warehousing
Co., 54 Ohio St.2d 64 (1978). A genuine issue of material fact exists unless it is clear that
reasonable minds can come to but one conclusion and that conclusion is adverse to the
nonmoving party. Williams v. First United Church of Christ, 37 Ohio St.2d 150, 151 (1974).
Summary judgment is a procedural device to terminate litigation, so it must be awarded
cautiously, with any doubts resolved in favor of the nonmoving party.              Murphy v.
Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).
       {¶ 15} A party seeking summary judgment for the reason that a nonmoving party
cannot prove its case bears the initial burden of informing the trial court of the basis for the
motion and it must identify those parts of the record that demonstrate the absence of a
genuine issue of material fact on the elements of the nonmoving party's claims. Dresher v.
Burt, 75 Ohio St.3d 280, 292-93 (1996). The moving party does not discharge this initial
burden under Civ.R. 56 by simply making a conclusory allegation that the nonmoving party
has no evidence to support its claims. Id. Rather, the moving party must affirmatively
demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving
party has no evidence to support its claims. Id. If the moving party satisfies its initial
burden, then the burden shifts to the nonmoving party to set forth specific facts showing
there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293. The nonmoving party may
No. 17AP-696                                                                             5


not rest on the mere allegations or denials of its pleadings, but must respond with specific
facts showing there is a genuine issue for trial. Civ.R. 56(E); Dresher at 293. If the
nonmoving party does not so respond, summary judgment, if appropriate, shall be entered
against the nonmoving party. Id.
IV. LAW AND DISCUSSION
       {¶ 16} Love argues that the trial court erred in granting summary judgment to the
city and Arsh. R.C. 4112.02 prohibits discrimination based on a plaintiff's race and
provides:
              It shall be unlawful discriminatory practice:

              (A) For any employer, because of the race, color, religion, sex,
              military status, national origin, disability, age or ancestry of any
              person, to discharge without just cause, to refuse to hire, or
              otherwise to discriminate against that person with respect to
              hire, tenure, terms, conditions, or privileges of employment, or
              any matter directly or indirectly related to employment.
       {¶ 17} The Supreme Court of Ohio has explained that discrimination actions under
federal and state law require the same analysis.            Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981). Thus,
Ohio courts may look to both federal and state courts' statutory interpretations of both
federal and state statutes when determining the rights of litigants under state
discrimination laws. Dautartas v. Abbott Laboratories, 10th Dist. No. 11AP-706, 2012-
Ohio-1709, ¶ 24, citing Miller v. Potash Corp. of Saskatchewan, Inc., 3d Dist. No. 1-09-58,
2010-Ohio-4291, ¶ 16.
       {¶ 18} A plaintiff must prove discriminatory intent by either direct or indirect
evidence. Gismondi v. M & T Mtge. Corp., 10th Dist. No. 98AP-584 (Apr. 13, 1999). Absent
direct evidence of discrimination, a plaintiff may indirectly establish discriminatory intent
using the analysis promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and this is the basis for analyzing discrimination claims under both state and federal law.
Gismondi.
       {¶ 19} A plaintiff claiming discrimination in employment must first demonstrate a
prima facie case of discrimination. McDonnell Douglas at 802. A plaintiff may directly
establish a prima facie case of discrimination by presenting evidence of any nature to show
that adverse employment action taken by his or her employer was more likely than not
No. 17AP-696                                                                              6


motivated by discriminatory intent. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 583
(1996). A plaintiff may indirectly establish a prima facie case of discrimination "by showing
that: (1) he or she was a member of a statutorily protected class; (2) he or she was subjected
to an adverse employment action; (3) he or she was qualified for the position; and (4) he or
she was replaced by, or that the removal permitted the retention of, a person not belonging
to the protected class." Tessmer v. Nationwide Life Ins. Co., 10th Dist. No. 98AP-1278
(Sept. 30, 1999), citing Kohmescher v. Kroger Co., 61 Ohio St.3d 501, 504 (1991).
       {¶ 20} Termination of employment is considered to be an adverse employment
action. Crady v. Liberty Natl. Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993).
Establishing a prima facie case " ' creates a presumption that the employer unlawfully
discriminated against the employee.' " Williams v. Akron, 107 Ohio St.3d 203, 2005-Ohio-
6268, ¶ 11, quoting Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
       {¶ 21} If a plaintiff establishes a prima facie case, a burden shifting occurs, causing
the employer to articulate some legitimate, nondiscriminatory reason for the adverse
employment action. If the employer articulates such a reason for the adverse action, the
burden shifts back to the plaintiff to show "that the proffered reason was not the true
reason" for the adverse employment action. Burdine at 256. This has been referred to as a
"pretense" or pretext for the offending action. See, e.g., Bogdas v. Ohio Dept. of Rehab. &
Corr., 10th Dist. No. 09AP-466, 2009-Ohio-6327. "Although the presumption created by
the prima facie case disappears once the employer meets its burden of production, 'the trier
of fact may still consider the evidence establishing the plaintiffs prima facie case "and
inferences properly drawn therefrom * * * on the issue of whether the defendant's
explanation is pretextual." ' " Nelson v. Univ. of Cincinnati, 10th Dist. No. 16AP-224, 2017-
Ohio-514, ¶ 35, quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000), quoting Burdine at 255, fn. 10.
       {¶ 22} Specifically, in the case of discriminatory discharge, to make a prima facie
case, a plaintiff must show (1) he or she is a member of a racial minority; (2) he or she is
qualified for the job; (3) he or she was discharged; (4) the position from which he or she
was removed remains open or he or she was replaced by a person outside the protected
class. Plumbers & Steamfitters at 197.
No. 17AP-696                                                                             7


       {¶ 23} The trial court found that Love had failed to present a prima facie case of
discriminatory discharge under the standard determined by the Supreme Court of Ohio.
Id. The trial court determined that Love could satisfy the first three elements of his prima
facie case but could not satisfy the last element because the evidence was insufficient to
support the conclusion that a person outside the protected class replaced him.
       {¶ 24} Following Lilley v. BTM Corp., 958 F.2d 746 (6th Cir.1992), questioned on
other grounds, Janette v. Am. Fid. Group, Ltd., 298 Fed.Appx. 467 (6th Cir.2008), the trial
court found that Love was not replaced. In Lilley, the Sixth Circuit Court of Appeals found
that there was insufficient evidence to establish a prima facie case of age discrimination
because the plaintiff was not replaced. A downturn in the market for the company's
products occurred and several orders were canceled which supported plaintiff's
termination. Plaintiff's duties were absorbed by the remaining employees. However, nine
months after his termination, the company's business had recovered and increased and
another employee was hired. The Sixth Circuit determined that this did not constitute a
replacement within the age-discrimination context, and the plaintiff did not establish the
fourth prong of his prima facie case.
       {¶ 25} Love provided evidence for his prima facie case. He is an African-American
whose employment was terminated, and he had been performing the job since the early
1990s. The trial court only focused on the fourth prong of the prima facie case and
determined that Love failed to establish that he was replaced by someone outside the
protected class. Initially, Love argues the trial court erred in this determination because
appellees did not make this argument in their motion for summary judgment but, rather,
argued it in their reply. Further, Love argues that appellees admitted in the responses to
his discovery interrogatories that he was replaced. When asked whether the city hired any
individual to replace Love, the answer provided was "Matthew E. Claypool, Caucasian,
male, was hired effective 8/8/11." (May 2, 2017 Defs.' Resps. to Interrogs. at Interrog. No.
13.) Love argues that this response admits he was replaced and sets forth the fourth prong
of his prima facie case.
       {¶ 26} Appellees' response to Love's discovery interrogatories is an admission that
Love was replaced by someone outside his protected class. But the answer provides that
Love's replacement was hired nine months after Love's employment terminated. The trial
No. 17AP-696                                                                                                 8


court applied Lilley and found that since Love's replacement was hired nine months after
his employment was terminated, he was not replaced.                          Love argues that Lilley is
distinguishable because the defendant in Lilley denied that the plaintiff had been replaced,
and the terminated employee's employment was attributable to a downturn in the market.
Then, nine months later, after the market rebounded, an employee outside the protected
class was hired. Love argues that this is a meaningful distinction because here, appellees
admitted they hired someone outside the protected class. Here, appellees' admission that
Love was replaced established the fourth prong of Love's prima facie case, but the question
of whether Lilley should apply to these facts creates genuine issue of material fact. That is,
the basis for not filling Love's position for nine months was subject to a factual
determination not well-settled by evidence in the record. And this was material to whether
he satisfied the fourth element of a prima facie case of discriminatory discharge by the city
and Arsh.
        {¶ 27} While the trial court also found that Love could not meet the fourth prong of
his discrimination claim for disparate treatment,1 he does not make this argument as part
of this appeal nor argue in response before the trial court on summary judgment. He
focused his arguments on the fact that he was replaced with an individual not in his
protected class. The trial court did address the argument concerning disparate treatment,
from what we can tell, because defendants raised it in their motion for summary judgment.
But because that aspect of the trial court's decision is not raised as error by Love on appeal,
we do not address this issue as part of our decision. We note that we need not address it if
any material issue of fact remains concerning any basis for establishing a prima facie case,
the evidence being construed in favor of the moving party under Civ.R. 56(C). We thus
return to whether any material issue of fact remains concerning the issue of whether Love
was replaced with an individual not in his protected class.
        {¶ 28} According to our review of the record, the trial court spent a significant
amount of time focusing on disparate treatment issues, including impermissibly weighing


1 Love repeatedly testified in his deposition that other line locators engaged in the same conduct as the conduct

for which he was terminated and they were not disciplined. Although Love could not identify any particular
individual, he testified that all the line locators did the same things and had made mistakes, yet he was
disciplined while others were not disciplined. Although Love was working under a Last Chance Agreement
and there is no evidence that other line locators were working under a Last Chance Agreement, he argued that
these other line locators were not disciplined at all.
No. 17AP-696                                                                              9


evidence and necessarily making credibility determinations concerning the circumstances
of the other comparable, non-protected persons on the issue of disparate treatment. It
discounted Love's statements that other line locators were treated better because he could
not specifically name those persons and, therefore, found that Love presented no proof
regarding the fourth prong of the prima facie analysis. The trial court credited appellees'
statements by affidavit that two Caucasian utility line locators were terminated or resigned
after violating rules while working under a Last Chance Agreement. The trial court appears
to not have considered all the evidence or to have determined some more credible than
other evidence, impermissibly weighing in reaching summary judgment for appellees.
        {¶ 29} But more importantly, the trial court did not construe the evidence in Love's
favor as the nonmoving party. While this would be permissible at trial, it is not permissible
on summary judgment. Nationwide Mut. Ins. Co. v. Am. Elec. Power, 10th Dist. No. 08AP-
339, 2008-Ohio-5618, ¶ 29, citing Santho v. Boy Scouts of Am., 168 Ohio App.3d 27, 2006-
Ohio-3656, ¶ 16 (10th Dist.) As we review the record, the trial court erred when it
determined Love failed to make a prima facie case for employment discrimination. We hold
that a material issue of fact exists concerning whether the nine-month gap between Love's
termination and the hiring of his non-protected class replacement is subject to the same
analysis of factors such as market conditions in Lilley. Because the city is a government
entity for which there was not evidence the city was subject to market conditions, such as
for a fee-based revenue structure, there is significant doubt about whether the trial court
could apply Lilley in determining Love did not meet the fourth requirement in proving
discriminatory discharge.
        {¶ 30} Since we hold there is a material issue of fact on whether Love established a
prima facie case of discriminatory discharge, summary judgment is inapposite. We do not
reach issues relating to burden shifting to the employer or pretextual based reshifting of the
burden to Love. Such issues remain premature. Having found that the trial court erred in
its summary determination that Love did not present a prima facie case of discriminatory
discharge, we thus sustain Love's sole assignment of error, and Love's other arguments are
moot.
        {¶ 31} Our decision addresses only Love's sole assignment of error in which he did
not raise any issues about his initial retaliation claim involving disparate treatment. We
No. 17AP-696                                                                              10


simply point out the problems we see in the record concerning how the trial court reached
its summary judgment determination on that aspect of appellees' summary judgment
motion.
V. CONCLUSION
       {¶ 32} The Franklin County Court of Common Pleas erred in granting appellees'
motion for summary judgment because a material fact exists as to why Love's position was
kept open for nine months before Arsh and the city hired someone to replace him who was
not a member of a protected class. Thus, the trial court was not in a position to grant
summary judgment for failure to make a prima facie case of discriminatory discharge.
Accordingly, we sustain Love's sole assignment of error and reverse the judgment of the
Franklin County Court of Common Pleas on that basis.
                                                                     Judgment reversed and
                                                                          cause remanded.

                                    HORTON, J., concurs.
                                    SADLER, J., dissents.

SADLER, J., dissenting.
       {¶ 33} Because I believe the dispositive issue in this case is whether the trial court
erred as to evidence of pretext, I do not agree with the majority decision that it is premature
to address the next steps of the McDonnell Douglas burden-shifting analysis.
       {¶ 34} This court's precedent permits granting summary judgment based on the
pretext step of the McDonnell Douglas burden-shifting analysis regardless of whether the
appellant succeeded in establishing a prima facie case. See, e.g., Housden v. Wilke Global,
Inc., 10th Dist No. 17AP-420, 2018-Ohio-3959, ¶ 66; Crase v. Shasta Beverages, Inc., 10th
Dist. No. 11AP-519, 2012-Ohio-326, ¶ 13; Kundz v. AT&T Solutions, Inc., 10th Dist. No.
05AP-1045, 2007-Ohio-1462, ¶ 30; Morrissette v. DFS Servs., LLC, 10th Dist. No. 12AP-
611, 2013-Ohio-4336, ¶ 33. Furthermore, the parties raised the issue of evidence of pretext
to the trial court, the trial court ruled on pretext as an alternative basis to find summary
judgment in favor of appellees, and appellant does not raise evidence of appellees hiring a
replacement who was not a member of a protected class (his remaining prima facie
argument) as evidence of pretext.
No. 17AP-696                                                                      11


       {¶ 35} Considering the above, I believe addressing the pretext prong of the
McDonnell Douglas burden-shifting analysis is necessary to resolve the appeal. Because
the majority holds otherwise and does not address the issue of pretext, I respectfully
dissent.
