[Cite as Smith v. Expressjet Airlines, Inc., 2015-Ohio-313.]



                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA



                                   JOURNAL ENTRY AND OPINION
                                           No. 101336




                                             KRISTIN SMITH

                                                               PLAINTIFF-APPELLANT

                                                       vs.

                               EXPRESSJET AIRLINES, INC., ET AL.

                                                               DEFENDANTS-APPELLEES




                                                JUDGMENT:
                                                 AFFIRMED



                                         Civil Appeal from the
                                Cuyahoga County Court of Common Pleas
                                       Case No. CV-12-783822

        BEFORE: S. Gallagher, J., Celebrezze, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                        January 29, 2015
ATTORNEYS FOR APPELLANT

Chastity L. Christy
Caryn M. Groedel
Caryn Groedel & Associates Co., L.P.A.
31340 Solon Road
Suite 27
Cleveland, OH 44139


ATTORNEYS FOR APPELLEES

Thomas Evan Green
Julie A. Trout
Kastner Westman & Wilkins L.L.C.
3480 West Market Street
Suite 300
Akron, OH 44333

Sarah Pierce Wimberly
271 17th Street, N.W.
Suite 1900
Atlanta, GA 30327
SEAN C. GALLAGHER, J.:

       {¶1} Appellant Kristin Smith appeals the decision of the trial court that granted summary

judgment in favor of the appellees, ExpressJet Airlines, Inc., Richard Routzahn, and Brenda

Maximovich. Smith also challenges certain discovery rulings. For the reasons stated herein,

we affirm the trial court’s decision to grant summary judgment and find the remaining discovery

issues are moot.

       {¶2} On May 30, 2012, Smith filed a complaint against the appellees, raising a claim for

race discrimination and seeking damages, including for lost wages and mental anguish. Smith,

who is an African-American female, had worked as a flight attendant for ExpressJet from

September 22, 2004, until her termination on March 29, 2011.

       {¶3} From 2005 through 2010, Smith received a number of verbal and written warnings

for attendance, as well as two termination warnings. In early 2011, her attendance instances

began to mount. A letter dated February 13, 2011, advised Smith of a mandatory meeting to

discuss her fourth sick-call instance within a 12-month active period and informed her of the

requirement for a doctor’s note. An investigatory meeting was held on March 28, 2011.       Before

the meeting was held, Smith submitted a doctor’s note that appeared to have an altered date.

Appellees verified the date Smith was seen at the doctor’s office, which did not comport with the

date on the note.

       {¶4} Although Smith’s termination was recommended for the suspected falsification of

the doctor’s note, she committed additional policy violations before the mandatory meeting was

held. On March 12 and 17, 2011, Smith failed to sign out liquor envelopes and also failed to

turn them in at the end of both flights. It was later discovered that Smith decided to stop selling

liquor altogether on the flights. Smith was advised that in addition to her attendance issues,
ExpressJet’s liquor policy would also be discussed at the mandatory meeting. At the meeting,

Smith admitted to her attendance-policy violations and did not deny having committed the

liquor-policy violations. Smith was not directly asked if she had altered the doctor’s note.

        {¶5} Smith was sent a termination letter dated March 29, 2011.1 The termination letter

referenced several attendance instances over the previous year, including sick calls and

unable-to-contact (“UTC”) violations, two instances of ExpressJet liquor-policy violations, and

the submission of a doctor’s note that was determined to have an altered date. The letter stated

that “[i]n review of your overall dependability record and violation of company policy, your

employment with ExpressJet Airlines is terminated * * *.”

        {¶6} Appellees filed a motion for summary judgment on December 2, 2013. In opposing

the motion, Smith alleged that appellees applied ExpressJet’s policies, procedures, and standards

differently with respect to similarly situated Caucasian employees and that appellees did not

discipline or terminate similarly situated Caucasian employees for similar violations. However,

none of the other employees referenced by Smith were shown to have had similar cumulative

violations. Smith also took issue with the number of her attendance instances over the 12-month

period prior to her termination; she claimed that ExpressJet’s progressive discipline policy charts

attendance and performance issues separately; she questioned appellees’ application of

ExpressJet’s liquor policy to Smith; and she referred to certain mistaken violations. Further,

Smith argued that appellees failed to follow their normal investigatory policies and procedures

with respect to investigating the allegation that Smith falsified the date on the note from the

doctor’s office. Although appellees did not question Smith regarding the alteration of the note,


        1
            It appears the letter was dated March 29, 2011, and sent on March 30,
2011.
the record reflects that appellees confirmed with the doctor’s office that the appointment date on

the doctor’s note had been been altered to show February 3, 2011, as opposed to the actual

appointment date of March 3, 2011. During her deposition, Smith did not deny that the note had

been altered; she only denied that she made the alteration.

       {¶7} The trial court granted appellees’ motion for summary judgment, finding that Smith

had failed to establish a prima facie case of racial discrimination. The court found that Smith

had not shown that she was qualified for her position or that her performance met appellees’

legitimate job expectations. The trial court recognized the following:

       At the time of her dismissal, plaintiff had incurred seven attendance instances
       during an active 12-month period, a record that she corroborated during her
       deposition. Pl. Dep., pp. 158-159. * * *.

       {¶8} The trial court also found that Smith had failed to show that non-protected

comparable employees were given preferential treatment. The court recognized that Smith had

incurred many of her attendance and performance instances between January 1, 2011 and March

29, 2011. The court further found that “other, non-protected flight attendants were terminated

for submitting false documents,” and “while other, non-protected flight attendants merely failed

to timely turn in liquor envelopes, plaintiff deliberately decided to stop selling any liquor on her

assigned flights.” Smith timely appealed the trial court’s ruling on summary judgment.

       {¶9} Aside from the summary judgment, a dispute arose during discovery concerning

appellees’ requests for appellant’s medical records or information. Ultimately, the trial court

granted in part and denied in part appellees’ motion to compel, subject to the terms of a joint

stipulated protective order that was previously granted by the trial court and required

confidentiality of such medical and other personal information.          The court further ordered

appellant to execute an authorization for the release of medical information. An appeal was
filed from this ruling; however, the appeal was dismissed as moot after the trial court granted

appellees’ motion for summary judgment and the present appeal was filed.

       {¶10} In this appeal, Smith raises two assignments of error for our review. Under her

first assignment of error, Smith claims the trial court erred in granting appellees’ motion for

summary judgment.

       {¶11} Appellate review of summary judgment is de novo, governed by the standard set

forth in Civ.R. 56.   Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

 Summary judgment is appropriate when “(1) there is no genuine issue of material fact, (2) the

moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most

strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and

that conclusion is adverse to the nonmoving party.”     Marusa v. Erie Ins. Co., 136 Ohio St.3d

118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7.

       {¶12} R.C. 4112.02(A) provides that it shall be an unlawful discriminatory practice for

any employer, because of race, “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.”

       {¶13} To make a prima facie case of racial discrimination by indirect evidence, a plaintiff

must establish that (1) she was a member of a protected class, (2) she suffered an adverse

employment action, (3) she was qualified for the position, and (4) a comparable, non-protected

person was treated more favorably. Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378,

385, 701 N.E.2d 1023 (8th Dist.1997), citing McDonnell Douglas Corp. v. Green, 411 U.S.

792,93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If the plaintiff establishes a prima facie case, then

the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse
employment action. Mosley v. Cuyahoga Cty. Bd. of Mental Retardation, 8th Dist. Cuyahoga

No. 96070, 2011-Ohio-3072, ¶ 64. If this showing is made, the burden shifts back to the

plaintiff to demonstrate that the employer’s articulated reason is a mere pretext for unlawful

discrimination. Id.

       {¶14} In this case, it is undisputed that Smith is a member of a protected class and that

her termination was an adverse employment action. As to the third criteria for a prima facie

case, appellees argue and the trial court found that Smith failed to demonstrate she was qualified

for the position because she did not meet appellees’ legitimate job expectations. However, in

determining whether an employee is qualified for a position, courts generally apply an objective

standard. See Kudla v. Olympic Steel, Inc., 8th Dist. Cuyahoga No. 101104, 2014-Ohio-5142, ¶

54; Ford v. E.J. Leizerman & Assocs., L.L.C., N.D. Ohio No. 3:11 CV 1053, 2014 U.S. Dist.

LEXIS 13618 (Feb. 4, 2014) (“[a]ny analysis regarding Plaintiff’s job performance properly

occurs with Defendants’ rebuttal of the prima facie case”). “The prima facie burden of showing

that a plaintiff is qualified can be met by presenting credible evidence that his or her

qualifications are at least equivalent to the minimum objective criteria required for employment

in the relevant field.”    Saha v. Ohio State Univ., 10th Dist. Franklin No. 10AP-1139,

2011-Ohio-3824, ¶ 49. Our review reflects that Smith presented credible evidence that she

possessed the minimum objective criteria for employment as a flight attendant based on her

education and experience. Therefore, Smith satisfies the third prong of the prima facie case.

       {¶15} Nonetheless, the record reflects that Smith failed to raise a genuine issue of fact as

to the fourth prong, which requires a showing that comparable or similarly situated,

non-protected employees were treated more favorably. To be similarly situated, the parties to be

compared must have dealt with the same supervisor, have been subjected to the same standards,
and have engaged in the same conduct without such differentiating or mitigating circumstances

that would distinguish their conduct or the employer’s treatment of them for it. Janezic v. Eaton

Corp., 8th Dist. Cuyahoga No. 99897, 2013-Ohio-5436, ¶ 21.

       {¶16} The record shows differentiating and mitigating circumstances were present in this

case. Smith had incurred multiple attendance instances, committed liquor-policy violations on

two flights, and submitted a doctor’s note that was confirmed to have an altered date. None of

the proposed comparable, non-protected employees were shown to be similarly situated.

       {¶17} Smith argues that there were Caucasian flight attendants who were not disciplined

as harshly for attendance issues. She further asserts that pursuant to ExpressJet’s policies and

procedures, she only would have had four attendance instances (three sick call instances and one

UTC instance) at the time of the March 28, 2011 mandatory meeting, and not the seven instances

claimed by appellees. However, beyond the attendance issues, a required doctor’s note was

determined to have an altered date. Smith also proceeded to commit liquor-policy violations.

       {¶18} Smith claims that she should have received at most a verbal warning for violating

the liquor policy and that there were Caucasian flight attendants who violated the liquor policy

that only received verbal warnings or were not disciplined. However, Smith had committed

liquor-policy violations on two flights and was the only employee who stopped selling liquor on

the flights. Further, these violations were coupled with multiple attendance issues.

       {¶19} Smith argues ExpressJet followed their investigatory policies and procedures with,

and provided notice to, the other flight attendants who were terminated for falsifying documents.

 Smith claims she never received notice that she was being accused of altering the doctor’s note,

nor did she receive a mandatory investigatory meeting regarding the note prior to disciplinary

action being taken. However, the other flight attendants were in fact terminated for falsifying
documents. Unlike the others, Smith’s case involved an altered doctor’s note submitted for an

unexcused absence. Even if appellees failed to follow their policies and procedures in regard to

investigating their suspicions that Smith falsified the note, they had confirmed the note had an

altered date. Their confirmation of the altered note, together with Smith’s multiple attendance

instances and liquor policy violations were all outlined in Smith’s termination letter. Simply

put, the other employees were not shown to be similarly situated.

       {¶20} None of the employees referred to by Smith had acquired multiple attendance

instances, submitted an altered doctor’s note for an unexcused absence, and committed

liquor-policy violations.   Although Smith places much emphasis on the altered note being the

basis for her termination, the attendance issue and liquor-policy violations were discussed at her

mandatory meeting, and the termination letter outlined the attendance issues, liquor-policy

violations, and the determination that the doctor’s note was altered.        As indicated by the

termination letter, the decision to terminate was made upon review of Smith’s “overall

dependability record and violation of company policy[.]” Although Smith did not have to show

an exact correlation between herself and another similarly situated employee, she was required to

show that the proposed comparators were similar in all relevant respects and had engaged in acts

of comparable seriousness. Ames v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.

14AP-119, 2014-Ohio-4774, ¶ 42. Smith failed to demonstrate that the proposed comparable

employees were similarly situated in all relevant respects.

       {¶21} Even assuming, arguendo, that Smith did state a prima facie case of race

discrimination in her alleged discharge, she still failed to disprove the appellees’ assertion that

she was dismissed for a legitimate, nondiscriminatory reason.         Appellees presented ample
evidence demonstrating that Smith was not meeting her employer’s legitimate job performance

expectations.

          {¶22} Thus, the burden was on Smith to show that the appellees’ reason was false and

that discrimination was the real reason for her discharge.    To establish pretext, Smith must show

that the proffered reasons had no basis in fact, did not actually motivate the adverse decision, or

was insufficient to warrant the decision. See Lascu v. Apex Paper Box Co., 8th Dist. Cuyahoga

No. 95091, 2011-Ohio-4407, ¶ 27. “Further, ‘if a plaintiff is not able to establish that she

performed the job at a level which met the employer’s legitimate expectations or that the

accusation of poor work was only a pretext, the claim for discrimination cannot be successful.’”

Gerding v. Girl Scouts of Maumee Valley Council, Inc., 6th Dist. Lucas No. L-07-1234,

2008-Ohio-4030, ¶ 27, quoting McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th

Cir.1990). In this case, Smith received letters regarding her performance and attendance issues

and admitted to the attendance instances and liquor-policy violations outlined in the termination

notice.       Further, the record reflects that the doctor’s note submitted by Smith had an altered

date. The record is devoid of any credible evidence that appellees’ decision to terminate Smith

was merely pretextual and that discrimination was the real reason for her discharge.

Accordingly, Smith failed to demonstrate a genuine issue of material fact as to pretext.

          {¶23} Upon our review, we find the trial court properly granted appellees’ motion for

summary judgment.         Smith’s first assignment of error is overruled. Her second assignment of

error, which raises discovery issues, is moot.2



          Smith’s second assignment of error claims “[t]he trial court erred in granting appellees’
          2

motion to compel Ms. Smith’s medical information and records and in refusing to conduct an in
camera inspection.”
       {¶24} Judgment affirmed.

       It is ordered that appellees recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
EILEEN A. GALLAGHER, J., CONCUR
