[Cite as Crawford v. Notar, 2016-Ohio-3010.]



                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


JOHN L. CRAWFORD,                               :         OPINION

                 Plaintiff-Appellant,           :
                                                          CASE NO. 2015-T-0133
        - vs -                                  :

MICHAEL NOTAR, et al.,                          :

                 Defendants-Appellees.          :



Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CV
01540.

Judgment: Affirmed.


Frank Consolo, Consolo Law Firm, LTD., 212 Hoyt Block, 700 West St. Clair Avenue,
Cleveland, OH 44113 (For Plaintiff-Appellant).

Sherrie C. Massey and David Kane Smith, Smith Peters & Kalail Co., L.P.A., 6480
Rockside Woods Blvd., South, Suite 300, Cleveland, OH 44131 (For Defendants-
Appellees).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, John L. Crawford, appeals the judgment of the Trumbull

County Court of Common Pleas, granting summary judgment in favor of defendants-

appellees, Michael Notar and the Warren City School District Board of Education. The

issue before this court is whether summary judgment is properly granted on a claim of

retaliation for opposing an unlawful discriminatory practice where there were legitimate
reasons sufficient to justify the adverse employment action existing independent of and

prior to the opposition to an unlawful discriminatory practice. For the following reasons,

we affirm the decision of the court below.

       {¶2}      On August 11, 2014, Crawford filed a Complaint against Notar and the

Board of Education in the Trumbull County Court of Common Pleas.

       {¶3}      On September 10, 2014, Notar and the Board of Education filed their

Answer, subsequently amended on September 18, 2014.

       {¶4}      On May 8, 2015, Crawford filed an Amended Complaint. Crawford alleged

the following:

                 1.     Crawford is an African-American male who began working
                 for the Board in or about November 2007 until his termination from
                 employment with the Board effective June 30, 2013.

                 ***

                 6.    In or about January 2009 Crawford held the position of
                 Supervisor of Student Services * * *.

                 ***

                 10.    In or about early February 2013, Crawford discovered that *
                 * * Caucasian supervisors were all paid more than Crawford * * *.

                 11.     Crawford complained about his salary inequity compared to
                 Caucasian supervisors to Notar and asked for a meeting to discuss
                 the pay inequity. Notar scheduled a meeting to take place on
                 February 13, 2013 with Crawford to discuss Crawford’s complaint
                 that he was being paid less than Caucasian supervisors, but Notar
                 cancelled it. * * * Notar cancelled the meeting because he already
                 knew of the pay inequities and decided he was going to
                 recommend to the Board that Crawford’s position be eliminated,
                 which he did in fact do in March 2013. * * * This was done in
                 retaliation for Crawford complaining that he was being treated
                 differently and discriminated against in terms of pay because he is
                 African-American.




                                              2
       {¶5}   Crawford asserted claims of unlawful discriminatory practices, inter alia,

that “Defendant Board and Defendant Notar terminated Crawford’s employment in

retaliation for his complaint of race discrimination in terms of his salary, in violation of

R.C. 4112.02(A) and (I).”

       {¶6}   On May 22, 2015, Notar and the Board of Education filed their Answer to

the Amended Complaint.

       {¶7}   On September 29, 2015, Notar and the Board of Education filed a Motion

for Summary Judgment.        In support of the Motion, the testimony of the following

persons was submitted by way of affidavit.

       {¶8}   Notar testified that, from August 2012 to July 2014, he was employed by

the Warren City School District Board of Education as its Superintendent.

              7.     When I interviewed with the Board in 2012 for the
              Superintendent’s position, I told the Board that I would submit a
              plan for the elimination of both administrative and teachers
              positions in order to reduce expenditures. I had already concluded
              that the District was top-heavy with administrators, and that some
              administrative positions could be eliminated and job duties and
              responsibilities could be transferred to other employees.

              8.      The Board and I began discussions in August or September
              of 2012 about which administrative positions should be eliminated.
              I told the Board that it should eliminate five positions at the end of
              the school year: (a) Supervisor of Custodial Services (Neil Betts,
              who is Caucasian); (b) Executive Director of Human Resources
              (Angela Desai, who is Indian); (c) Communications Coordinator
              (Aaron Schwab, who is Caucasian); (d) Coordinator of Student
              Services (John Crawford, who is African-American); and (e)
              Technology Supervisor (Kay Kalmer, who is Caucasian).

              ***

              10.    The Board and I decided to wait until the spring of 2013 to
              eliminate the five positions.




                                             3
             11.    The Associate Superintendent, however, changed her plans
             and announced that she would retire at the end of December 2012
             rather than the end of the school year.

             12.    This caused the Board and me to decide that the Director of
             Human Resources’ position should be eliminated in conjunction
             with the retirement of the Associate Superintendent so that the new
             Associate Superintendent could begin sharing in fulfilling some of
             the Director of Human Resources’ duties immediately upon being
             hired.

             ***

             16.     At its October 30, 2012 meeting the Board tabled the
             resolution to suspend [Director of Human Resources] Desai’s
             contract * * *. The Board indicated to me that it had decided to wait
             until the end of the school year to eliminate the two positions, when
             it would also eliminate the positions of the other four employees,
             including Crawford.

             ***

             21.   I informed Crawford in March of 2013 that the Board would
             vote on the elimination of his position at its March 19, 2013
             meeting.

             ***

             24.    Crawford never complained to me that his salary was less
             than * * * any other employee[’s].

             25.    I never told Regina Patterson, any other Board Member, or
             any other person that Crawford had ever complained about his
             salary or claimed that his salary was less than other Caucasian
             employees.

      {¶9}   Regina Patterson testified that she is African-American and that she was

president of the Board of Education in 2012 and 2013. She affirmed that “in August or

September of 2012, the Board began discussions with [Notar] to determine which

positions * * * should be eliminated,” and that “Notar told the Board that it should

eliminate * * * Coordinator of Student Services [Crawford],” among others. Patterson



                                           4
further affirmed that the Board “decided to wait until the spring of 2013 to eliminate the

five positions.”

       {¶10} Patterson testified that, at its March 19, 2013 meeting, “[t]he Board voted

4-0 to eliminate the Coordinator of Student Services position and to terminate

Crawford’s employment.”

              19.   Andre Coleman (who is African-American), Robert Faulkner,
              Jr. (who is African-American), Patricia Limperos (who is
              Caucasian), and I voted in favor of eliminating the Coordinator of
              Student Services position and terminating Crawford’s employment.
              Board Member Rhonda Baldwin-Amorganos (who is Caucasian),
              was absent from the Board meeting and did not vote.

              20.    I voted to eliminate the Coordinator of Student Services
              position and to terminate Crawford’s employment because the
              Board employed too many administrators, I believed that his
              position could be eliminated and his job duties and functions could
              be performed by other employees, and the action would reduce the
              Board’s expenditures, which was necessary in light of the District’s
              poor financial condition and declining enrollment.

              ***

              23.    Neither Notar nor any other person ever told me that
              Crawford had complained that his salary was less than * * * any
              other employee[’s].

       {¶11} Andre Coleman, Robert Faulkner, Patricia Limperos, and Rhonda

Baldwin-Amorganos, all members of the Board of Education at the relevant times,

testified consistently with Notar and Patterson.

       {¶12} Angela Lewis, Treasurer for the Warren City School District Board of

Education, testified that she had cautioned “the Board about its deficit spending and the

poor financial condition of the Warren City School District” and recommended “to the

Board that it consider eliminating positions and suspending contracts in reductions in

force because of the District’s poor financial condition and prognosis.” Lewis “was


                                            5
present at a Board meeting in September of 2012 where Superintendent Michael Notar

* * * recommended to the Board that it eliminate five positions at the end of the 2012-

2013 school year: * * * [including] Coordinator of Student Services [Crawford].”

       {¶13} On November 16, 2015, Crawford filed his Memorandum in Opposition to

Defendant’s Motion for Summary Judgment. In a subsequent filing on November 19,

2015, Crawford advised the trial court that “Plaintiff opposes summary judgment only on

his third cause of action (the retaliation claim against both Defendants).”

       {¶14} By affidavit, Crawford testified that “probably around mid to late January

2013,” he “walked into Notar’s office in the Administration building and explained to him

that during the review of [his] job description * * * [he] questioned * * * why [he] was

being paid ‘classified non-supervisory.’”

              10.     I told Notar about me taking over [Community Outreach
              Supervisor, William] Carnahan’s duties such as the truancy cases
              and not being compensated for these extra duties. I told him
              Carnahan did not work during the summer but I did have to work all
              year long and was still being paid less salary. I told him other
              classified employees were being paid more than me. * * * I told
              Notar that I was the only African-American classified employee. I
              said their salaries, meaning Aaron Schwab and Jill Merolla
              [Caucasian employees], were nearly double mine and it was not
              fair. He told me he would look into it and we would meet to discuss
              it further.

              ***

              11.    In the meantime, after I met with Notar in his office in
              January 2013 I received a letter from [Assistant Superintendent]
              Steve Chiaro dated January 30, 2013 telling me that effective
              February 4, 2013 I was to report each work day to a different school
              and no longer to report to my office in the Administration building.
              My office in the Administration building was in the Student Services
              Department and I had two secretaries. Once I was ordered to
              report to the different schools I had to use whatever space was
              available and no longer had a secretary. * * *



                                             6
             12.    On March 14, 2013 Tracy Preston [Notar’s Secretary] called
             me and asked me to come over to the Administration building to
             meet with Notar. I thought it was to talk about my salary complaint.
             Instead when I went into Notar’s office he was sitting there along
             with Chiaro. Notar told me to sit down and he told me that my
             position was being terminated effective the end of the school year.
             That is all he said. Chiaro never said anything. I was completely
             shocked. The only thing I remember saying is “I thought every
             school district had to have a truancy officer.” No one responded.
             They just stood up and left. I later got a certified letter from Angela
             Lewis with a copy of the Board’s March 19, 2013 resolution
             terminating my contract.

      {¶15} On November 23, 2015, the trial court issued a Judgment Entry granting

Notar and the Board of Education’s Motion for Summary Judgment “in its entirety.” The

court held that the defendants were entitled to summary judgment because Crawford

failed to produce evidence “to establish that Notar’s recommendation to the Board that it

eliminate Crawford’s position as part of a reorganization of administrative positions was

caused by Crawford’s purported complaint to Notar about his salary.” The court also

noted Crawford’s failure to produce evidence that the Board of Education was aware of

Crawford’s salary complaint.

      {¶16} On December 16, 2015, Crawford filed his Notice of Appeal.

      {¶17} On appeal, Crawford raises the following assignments of error:

      {¶18} “[1.] The trial court committed prejudicial error in failing to find that material

facts are in dispute and granting summary judgment with regard to Appellant’s

retaliation claim based on the self-serving, vague and incomplete affidavits of Defendant

Notar, Treasurer Angela Lewis and the Board Members which alleged that Defendant

Notar recommended the elimination of Appellant’s job in August or September 2012,

before Appellant complained of his discriminatory salary.”




                                             7
       {¶19} “[2.] The trial court committed prejudicial error in determining that

Crawford had to prove that the individual Board members were aware that Crawford

engaged in protected activity in order to present a prima facie case of retaliation.”

       {¶20} Pursuant to Civil Rule 56(C), summary judgment is proper when (1) the

evidence shows “that there is no genuine issue as to any material fact” to be litigated,

(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 and that

conclusion is adverse to the party against whom the motion for summary judgment is

made, that party being entitled to have the evidence * * * construed most strongly in the

party’s favor.” A trial court’s decision to grant summary judgment is reviewed by an

appellate court under a de novo standard of review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “Under this standard, the reviewing court

conducts an independent review of the evidence before the trial court and renders a

decision de novo, i.e., as a matter of law and without deference to the conclusions of

the lower court.” (Citation omitted.) Bank of Am., N.A. v. Babik, 11th Dist. Geauga No.

2014-G-3243, 2016-Ohio-1156, ¶ 19.

       {¶21} Under R.C. 4112.02, “[i]t shall be an unlawful discriminatory practice: (A)

For any employer, because of * * * race * * * to discharge without just cause * * * or

otherwise to discriminate against that person with respect to hire, tenure, terms,

conditions, or privileges of employment,” and “(I) For any person to discriminate in any

manner against any other person because that person has opposed any unlawful

discriminatory practice defined in this chapter * * *.”




                                              8
      {¶22} “To establish a case of retaliation, a claimant must prove that (1) she

engaged in a protected activity, (2) the defending party was aware that the claimant had

engaged in that activity, (3) the defending party took an adverse employment action

against the employee, and (4) there is a causal connection between the protected

activity and adverse action.” Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-

6442, 879 N.E.2d 174, ¶ 13. “[T]o prevail on a retaliation claim, a plaintiff must show

that retaliation is a determinative factor—not just a motivating factor—in the employer’s

decision to take adverse employment action.”          (Citation omitted.)   Nebozuk v.

Abercrombie & Fitch, Co., 10th Dist. Franklin No. 13AP-591, 2014-Ohio-1600, ¶ 45;

Wholf v. Tremco, Inc., 2015-Ohio-171, 26 N.E.3d 902, ¶ 29 (8th Dist.) (“the plain

language of R.C. 4112.02(I) provides a ‘cause-in-fact’ causation standard rather than a

mixed-motives standard”).

      {¶23} In the first assignment of error, Crawford contends the affidavit testimony

of Notar, Patterson, the other Board Members, and Treasurer Lewis is insufficient to

support summary judgment in that it was “self-serving, vague and incomplete.”

Crawford notes that the affidavits are “virtually identical” and provide no details as to

“what was actually discussed.” Appellant’s Brief at 10; Deane v. Longo, 11th Dist.

Trumbull No. 2353, 1976 Ohio App. LEXIS 6142, 3 (Sept. 30, 1976) (rejecting affidavit

testimony as “vague” and “totally uncorroborated”).

      {¶24} We find the affidavits in question sufficient to support summary judgment

and the trial court’s construal of the evidence to show, as a matter of law, “that Notar

recommended to the Board in August or September of 2012 that it eliminate Crawford’s

position at the end of the year, [and that] the Board agreed to do so.” The witnesses



                                           9
agree that, in August or September 2012, Notar proposed the elimination of Crawford’s

and others’ positions due to economic considerations, but that no action would be taken

until the following spring. The premature attempt to eliminate Desai’s position at the

end of 2012 was motivated by special circumstances well-attested in the evidence. In

other respects, the attempt to terminate Desai’s position generally corroborates the

affidavit testimony, i.e., that the Board of Education was seeking in 2012 to decrease

expenses by the elimination of administrative positions. The fact that several other

employment contracts were terminated at the same time as Crawford’s further serves to

corroborate the affidavit testimony.

       {¶25} Crawford argues that there is no evidence of Notar proposing the

elimination of specific positions (Desai’s excepted) in the minutes of the Board of

Education’s meetings in 2012.      As the trial court properly pointed out, “this is not

dispositive of the issue, as a board of education is permitted to discuss certain topics in

executive session, including the employment or dismissal of an employee.”             R.C.

121.22(G)(1) (“the members of a public body may hold an executive session * * * [t]o

consider the appointment, employment, dismissal, discipline, promotion, demotion, or

compensation of a public employee or official”). The minutes confirm that, at several

school board meetings in the fall of 2012, executive sessions were called “to discuss

Consideration of Appointment, Employment, Promotion, etc. of Public Employees.”

       {¶26} Crawford relies on case law for the proposition “that the mere discussion

of budget cuts that might result in the termination of some employees[’] positions [is] not

the purpose of the exception under R.C. 121.22(G)(1).” State ex rel. Brothers v. Bd. of

Putnam Cty. Commrs., 3rd Dist. Putnam No. 12-13-05, 2014-Ohio-2717, ¶ 38. Such



                                            10
reliance is misplaced. Whether discussion of the elimination of Crawford’s position fell

within the exception of R.C. 121.22(G)(1) has no bearing on the evidentiary value of the

affidavits.   Whether proper or not, the Board of Education was invoking R.C.

121.22(G)(1) during the relevant time period in order to discuss the employment of

school employees in executive session.

       {¶27} Crawford also contends that Notar’s and the others’ testimony is suspect

because he was never advised that his position was being eliminated. We find nothing

inherently improbable about an employer not informing an employee that an informal

decision has been made to eliminate the employee’s position until such time that the

decision is acted upon, particularly in light of the Board of Education’s experience with

Desai. In any event, such speculations as Crawford raises are insufficient to impeach

the credibility of the movants’ affidavits.        Wheatley v. Marietta College, 4th Dist.

Washington No. 14CA18, 2016-Ohio-949, ¶ 45 (“‘[m]ere speculation and unsupported

conclusory assertions are not sufficient’ to meet the nonmovant’s reciprocal burden to

set forth specific facts to show that a genuine issue exists”) (citation omitted); Zoldan v.

Lordstown, 2014-Ohio-5472, 25 N.E.3d 451, ¶ 28 (11th Dist.) (a party’s “beliefs, which

he conceded were speculative and unsupported by any independent corroborative

facts, are insufficient to create a genuine issue of material fact”).

       {¶28} In sum, it cannot be reasonably inferred, based on the evidence in the

record, that Notar and the Board of Education did not contemplate the elimination of

Crawford’s position several months before he raised his claim of a disparity of salary

based on race.

       {¶29} The first assignment of error is without merit.



                                              11
       {¶30} In the second assignment of error, Crawford argues that the trial court

erred in ruling that the Board of Education was entitled to judgment on the grounds that

it was unaware of his salary complaint. “The Board, under the age old doctrine of

respondeat superior, is vicariously liable for the retaliatory actions of its employee,

Superintendent Notar.” Appellant’s Brief at 14.

       {¶31} Crawford relies on the Ohio Supreme Court’s decision in Hauser v. Dayton

Police Dept., 140 Ohio St.3d 268, 2014-Ohio-3636, 17 N.E.3d 554, for the proposition

that “the employment-discrimination provisions in R.C. 4112.01(A)(2) and 4112.02(A) do

not expressly impose civil liability on such employees, but instead impose vicarious

liability on the political-subdivision itself.” Id. at ¶ 1. Crawford’s reliance on Hauser is

misplaced for several reasons.

       {¶32} At issue in Hauser was whether the immunity afforded the employees of a

political subdivision under R.C. 2744.03(A)(6)(c) applied to acts of employment

discrimination in violation of R.C. 4112.02(A).      Id. at ¶ 6.    The Supreme Court’s

conclusion, based on the text of R.C. 4112.02(A), was that the statute “makes it an

unlawful discriminatory practice for ‘any employer’ to discriminate on a number of

different grounds,” but does “not expressly impose civil liability on political-subdivision

employees.” Id. at ¶ 8 and 9. The Court recognized that “[a]n individual political-

subdivision employee still faces liability under other provisions of R.C. 4112.02 that

expressly impose liability, including the aiding-and-abetting provision in R.C.

4112.02(J).” Id. at ¶ 15. Similar to R.C. 4112.02(J) (the aiding-and-abetting provision),

the retaliation provision of the statute imposes liability on “any person [who]




                                            12
discriminate[s] in any manner against any other person because that person has

opposed any unlawful discriminatory practice.” R.C. 4112.02(I).

       {¶33} Crawford’s claims of retaliation are based on Notar’s alleged retaliatory

conduct, not that of the Board of Education. Respondeat superior liability has only a

very limited application in the context of retaliation claims, because such claims depend

on evidence that “the defending party was aware that the claimant had engaged in that

activity” and the existence of “a causal connection between the protected activity and

adverse action.” Greer-Burger, 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174,

at ¶ 13.   The retaliatory motive must be a cause-in-fact or determinative factor in

Crawford’s termination, not just a motivating factor. Goodsite v. Norfolk S. Ry. Co., 573

Fed.Appx. 572, 586 (6th Cir.2014) (“[i]f the wrongful actions were merely a motivating

factor in the termination decision, the claim fails as a matter of law”).

       {¶34} Crawford seeks to impose liability on the Board of Education under what

has been described as “dual causation” or “cat’s paw” liability: “[i]n the employment

context, an unbiased decisionmaker is a cat’s paw in situations where a biased

subordinate, who lacks decisionmaking power, uses the unbiased decisionmaker as a

dupe in a deliberate scheme to trigger a discriminatory or retaliatory employment

action.” Smith v. Ohio Dept. of Pub. Safety, 2013-Ohio-4210, 997 N.E.2d 597, ¶ 55

(10th Dist.).   But even when considering retaliation claims under such theories of

liability, the courts have insisted on a plaintiff demonstrating a direct causal connection

between the subordinate’s discriminatory animus and the decisionmaker’s adverse

employment action. Staub v. Proctor Hosp., 562 U.S. 411, 422, 131 S.Ct. 1186, 179

L.E.2d 144 (2011) (“if a supervisor performs an act motivated by [discriminatory] animus



                                             13
that is intended by the supervisor to cause an adverse employment action, and if that

act is a proximate cause of the ultimate employment action, then the employer is liable”)

(footnote omitted) (emphasis sic).

       {¶35} In the present case, there is no evidence that the Board of Education had

any knowledge of Crawford’s salary complaint or that it was motivated by anything but

economic considerations when it terminated Crawford’s contract. Seoane-Vazquez v.

Ohio State Univ., 577 Fed.Appx. 418, 428-429 (6th Cir.2014) (employer entitled to

summary judgment so long as “factors that were untainted by retaliation” were sufficient

to justify the adverse employment action); Laughlin v. Cleveland, 102 F.Supp.3d 944,

952 (N.D.Ohio 2015) (“as long as Santora had a legitimate basis for giving Laughlin a

bad review and the City had a legitimate reason for terminating Laughlin, Laughlin

loses”).

       {¶36} The second assignment of error is without merit.

       {¶37} In response to Crawford’s assignments of error, Notar and the Board of

Education raised cross-assignments of error.     Local App.R. 16(C)(4) (“[p]ursuant to

Ohio App.R. 3(C)(2) or R.C. 2505.22, if appellee is defending a judgment or order

appealed by an appellant on a ground other than that relied on by the trial court, but

does not wish to change the judgment or order, the basis for the alternative defense

shall be set forth separately in a cross-assignment of error in the Appellee’s Brief”).

Having found no merit in Crawford’s assignments of error, we need not consider the

cross-assignments of error, raising alternative arguments for affirming the lower court’s

judgment. Arndt v. P & M Ltd., 11th Dist. Portage No. 2013-P-0027, 2014-Ohio-3076, ¶

169.



                                           14
      {¶38} For the foregoing reasons, the judgment of the Trumbull County Court of

Common Pleas, granting summary judgment in favor of Notar and the Board of

Education, is affirmed. Costs to be taxed against appellant.



CYNTHIA WESTCOTT RICE, P.J.,

THOMAS R. WRIGHT, J.,

concur.




                                           15
