[Cite as Eschborn v. Ohio Dept. of Transp., 2017-Ohio-824.]




ANNE ESCHBORN                                         Case No. 2016-00171

       Plaintiff                                      Judge Dale A. Crawford

       v.                                             ENTRY GRANTING DEFENDANT’S
                                                      MOTION FOR SUMMARY JUDGMENT
OHIO DEPARTMENT OF
TRANSPORTATION

       Defendant



        {¶1} Now before the Court is a Motion for Summary Judgment filed, pursuant to
Civ.R. 56, by Defendant, Ohio Department of Transportation (ODOT).                 Reply briefs
have been submitted and reviewed.                    Plaintiff’s Complaint alleges that she was
wrongfully terminated by ODOT, based on her gender, in violation of R.C. 4112.99.
        {¶2} On January 12, 2015, Plaintiff was hired as a seasonal employee referred to
as a Highway Tech I. She was hired, primarily, to operate a truck that plowed and
spread salt on roads within ODOT’s jurisdiction. At the time of her hiring, she was the
only female employee in the Cortland post. After less than a month of employment, she
was terminated on February 10, 2015. Plaintiff contends that she was given multiple
reasons for her termination: 1) she had not been performing her duties up to the
standards expected for the position; 2) she was terminated due to lack of work; and
3) she was terminated due to her alleged use of foul language and sexual harassment.
Plaintiff contends that the reasons offered by ODOT are pretext for unlawful gender
discrimination.

Summary Judgment Standard
        {¶3} Under Civ.R. 56(C), summary judgment is proper “if the pleadings,
depositions, answer to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
Case No. 2016-00171                        -2-                                     ENTRY


there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Thus, in order to determine whether Defendant is entitled
to judgment as a matter of law pursuant to Civ.R. 56(C), the Court must ascertain
whether the evidentiary materials presented by Defendant show that there is no genuine
issue as to any material fact involved in the case. In making this determination it is
necessary to analyze the landmark Ohio Supreme Court decision which addresses the
“standards for granting summary judgment when the moving party asserts that the
nonmoving party has no evidence to establish an essential element of the nonmoving
party’s case.” Dresher v. Burt, 75 Ohio St.3d 280, 285, 1996-Ohio-107, 662 N.E.2d 264
(1996); see also Saxton v. Navistar, Inc., 2013-Ohio-352, 986 N.E.2d 611 (10th Dist.), ¶
7.
      {¶4} In Dresher, the Ohio Supreme Court held:
      {¶5} “[T]he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record before the trial
court which demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party’s claim. * * * [T]he moving party bears the initial burden of
demonstrating that there are no genuine issues of material fact concerning an essential
element of the opponent’s case. To accomplish this, the movant must be able to point
to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in
rendering summary judgment. * * * The assertion must be backed by some evidence of
the type listed in Civ.R. 56(C) which affirmatively shows that the nonmoving party has
no evidence to support that party’s claims.” Dresher, supra, at 292-293.
      {¶6} In interpreting the United States Supreme Court decision in Celotex v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986), the Dresher Court found no express or
implied requirement in Civ.R. 56 that the moving party support its motion with affidavits
or other similar materials negating the opponent’s claim. Dresher, supra, at 291-292.
Furthermore, the Dresher Court stated that it is not necessary that the nonmoving party
Case No. 2016-00171                            -3-                                    ENTRY


produce evidence in a form that would be admissible at trial in order to avoid summary
judgment. Id. at 289, quoting Celotex. In sum, the Dresher Court held that the burden
on the moving party may be discharged by “showing”–that is, pointing out to the Court–
that there is an absence of evidence to support the nonmoving party’s case. Id.
          {¶7} “If the moving party fails to satisfy its initial burden, the motion for summary
judgment must be denied.” Id. at 293. If the moving party has satisfied its initial burden,
the nonmoving party has a reciprocal burden as outlined in Civ.R. 56(E):
          {¶8} “When a motion for summary judgment is made and supported as provided
in this rule, an adverse party may not rest upon mere allegations or denials of his
pleadings, but the party’s response, by affidavit or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine issue for trial. If the party
does not so respond, summary judgment, if appropriate, shall be entered against the
party.”

Gender Discrimination: Prima Facie
          {¶9} Plaintiff claims discrimination on the basis of sex in violation of R.C. 4112.
R.C. 4112.02 states, in pertinent part:
          {¶10} “It shall be an unlawful discriminatory practice:
          {¶11} “(A) For any employer, because of the race, color, religion, sex, military
status, 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.”
          {¶12} To establish an employment discrimination claim, a plaintiff must
demonstrate an adverse employment action causally linked to discriminatory intent. A
plaintiff may introduce direct, circumstantial, or statistical evidence to show that the
motivation for the adverse employment action plaintiff suffered was intentional
discrimination. Barnes v. GenCorp, Inc., 896 F.2d 1457 (6th Cir.1990); Johnson v.
Case No. 2016-00171                         -4-                                    ENTRY


Kroger Co., 319 F.3d 858, 864-65 (6th Cir.2003). The ultimate inquiry is “whether the
defendant intentionally discriminated against the plaintiff. USPS Bd. Of Governors v.
Aikens, 460 U.S. 711, 715 (1983). A prima facie claim for employment discrimination
may be established with either direct evidence or indirect evidence. Mauzy v. Kelly
Servs., Inc., 75 Ohio St. 3d 578, 1996-Ohio-265, 664 N.E.2d 1272, 1276-77 (1996).
Direct evidence “refers to a method of proof, not a type of evidence. It means that a
plaintiff may establish a prima facie case of age discrimination directly by presenting
evidence, of any nature, to show that the employer more likely than not was motivated
by discriminatory intent.” Mauzy, 664 N.E.2d at 1279. Direct evidence of discrimination
may be present in the rare case, such as where an employer says, “I fired you because
you are disabled.” Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir.1998).
       {¶13} Under the direct evidence method, once the plaintiff sets forth a prima facie
claim of employment discrimination, no further inquiry is required. The Court will then
consider whether Defendant presents evidence of valid, nondiscriminatory reasons for
terminating Plaintiff. Then, the Court will consider whether Plaintiff establishes evidence
that Defendant’s proffered nondiscriminatory reasons for terminating Plaintiff were
merely pretext. Mauzy; Barnes; see also Kittle v. Cynocom Corp., 232 F.Supp.2d 867,
875 (S.D.Ohio 2002). One can reasonably infer pretext from an employer’s shifting or
inconsistent explanation for the decision to terminate employee.         Tinker v. Sears
Roebuck & Co., 127 F.3d 519 (6th Cir.1997).
       {¶14} Plaintiff has provided no direct evidence of discrimination. In the absence
of direct evidence, the plaintiff may establish a prima facie case using the disparate
treatment method. Disparate treatment discrimination has been described as “the most
easily understood type of discrimination. The employer simply treats some people less
favorably than others because of their race, color, religion, sex, or national origin.”
Teamsters v. United States, 431 U.S. 324, 335-36 (1977) fn. 15.            In a disparate
treatment case, liability depends upon whether the protected trait actually motivated the
Case No. 2016-00171                       -5-                                   ENTRY


employer’s decision. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). For
example, the “employer may have relied upon a formal, facially discriminatory policy
that required adverse treatment” of protected employees, or the “employer may have
been motivated by the protected trait on an ad hoc, informal basis.” Id. “Whatever the
employer’s decision making process, a disparate treatment claim cannot succeed
unless the employee’s protected trait actually played a role in that process and had a
determinative influence on the outcome.” Id.
      {¶15} To determine whether the employer’s actions were motivated by
discriminatory intent, and thereby establish a prima facie case, courts may employ the
framework established by the United States Supreme Court in McDonnell Douglas.
Under the   McDonnell Douglas standard, a plaintiff establishes a prima facie case
discrimination on the basis of sex by establishing that she: 1) was a member of a
protected class; 2) suffered an adverse employment action; 3) was qualified for the
position held; and 4) that she was replaced by someone outside of the protected class.
ld. at 802. The fourth prong can also be satisfied by demonstrating that “a comparable
non-protected person was treated better.” Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 344 (6th Cir.1998); Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992),
citing Davis v. Monsanto Chem. Co., 585 F.2d 345 (6th Cir.1998).

There is No Evidence that Plaintiff was Replaced by Someone Outside the
Protected Class
      {¶16} Plaintiff has not met her burden of establishing her prima facie case. She
did not plead in her Complaint that she was replaced by a non-protected individual nor
does she provide any evidence that she was replaced by a non-protected individual in
her reply memorandum.
      {¶17} Plaintiff admits that she does not know whether or not she was actually
replaced. When asked in her deposition if she knew whether was replaced she said,
“[t]o [her] knowledge, Tiny went up there. Don’t know his name.” Later, in order to
Case No. 2016-00171                           -6-                                  ENTRY


clarify, she was asked, “to your knowledge, he replaced - - he was sent up to Gustavus
after you left?” She replied, “Yes.” (Eschborn Depo., p. 49-50)
      {¶18} Plaintiff argues that her testimony creates a legitimate issue of fact as to
who, if anyone replaced her. The Court does not agree. Plaintiff has not met her
reciprocal burden under Civ.R. 56(E). If the moving party satisfies its initial burden by
presenting or identifying appropriate Civ.R. 56(C) evidence, the nonmoving party must
then present similarly appropriate evidence to rebut the motion with a showing that a
genuine issue of material fact must be preserved for trial. Norris v. Ohio Standard Oil
Co., 70 Ohio St.2d 1, 2, 433 N.E.2d 615 (1982). The nonmoving party does not need to
try the case at this juncture, but its burden is to produce more than a scintilla of
evidence in support of its claims. Nu-Trend Homes v. Law Offices of DeLibera, Lyons &
Bibbo, 10th Dist. Franklin No. 01AP-1137, 2003-Ohio-1633, citing McBroom v.
Columbia Gas of Ohio, Inc. (June 28, 2001), 10th Dist. Franklin No. 00AP-1110, 2001
Ohio App. LEXIS 2849.
      {¶19} Plaintiff has not produced more than a scintilla of evidence. She has only
provided this Court with her own testimony that she heard from someone, not sure
whether it was an ODOT employee or not, that ODOT moved “Tiny” into her old post
after she left. (Eschborn Depo., p. 49-53).
      {¶20} Plus, Plaintiff testified that she worked with “Tiny” prior to her termination,
so presumably he was already an ODOT employee. (Eschborn Depo., p. 50).
      {¶21} “[A] person is not replaced when another employee is assigned to perform
the plaintiff’s duties in addition to other duties, or when the work is redistributed among
other existing employees already performing related work.” Mittler v. Ohiohealth Corp.,
10th Dist. Franklin No. 12AP-119, 2013-Ohio-1634, citing Barnes v. Gencorp, Inc., 896
F.2d 1457 (6th Cir.1990). Plaintiff does not testify that she was replaced by “Tiny.”
Rather she testified that she believed “Tiny” was moved to her post after she was
terminated. If “Tiny” was in fact moved to the post, which has not been established, this
Case No. 2016-00171                         -7-                                    ENTRY


would not help Plaintiff in establishing the fourth element. If anything, this may be
evidence of a redistribution of work and as such is not sufficient for establishing that
Plaintiff was replaced.

There is No Evidence that ODOT Treated a Comparable Non-Protected Person
Better Than Plaintiff
       {¶22} A plaintiff can establish the fourth element of a prima facie case under the
McDonnell Douglas test by showing that a comparable non-protected person was
treated more favorably than the plaintiff. Mitchell v. Toledo Hosp., 964 F.2d 577. “[T]he
individuals with whom the plaintiff seeks to compare her treatment must have dealt with
the same supervisor, have been subject 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.” Ercegovich, 154
F.3d 344, citing Mitchell, at 583.
       {¶23} Plaintiff admits that while she was employed she did not see any examples
of her male coworkers being treated differently. (Eschborn Depo., p. 65). However, she
testified that foul language was commonplace in the workplace at ODOT. Id. She
claims that ODOT maintained a double standard when it came to foul language used at
work. However, she also admits that she is not aware of any time in which someone
was offended by the use of foul language in the workplace, nor was she aware of a time
that someone used similar language to that which she used. Id. at 71-72. Ultimately,
Plaintiff has failed to demonstrate that a similarly-situated person was treated differently
than she was. Construing the evidence in favor of Plaintiff, even if foul language was
abundant in the workplace, Plaintiff has differentiated her statements by testifying that
amongst the rampant use of foul language she never heard a male employee use
language that was similar to the language she used.
       {¶24} Again, Plaintiff has provided nothing more than a scintilla of evidence that
she was treated differently than her male counterparts. Therefore, she has not met her
Case No. 2016-00171                          -8-                                    ENTRY


burden of proving the alternative fourth element of her prima facie case, pursuant to
Mitchell.
        {¶25} It is not necessary for the Court to consider the pretext argument because
Plaintiff has failed to establish the prima facie case.
        {¶26} For the reasons stated herein, Defendant’s Motion for Summary Judgment
is hereby GRANTED and judgment is rendered in favor of Defendant. All previously
scheduled events are VACATED. Court costs are assessed against Plaintiff. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.




                                                   DALE A. CRAWFORD
                                                   Judge

cc:
David L. Engler                                Eric A. Walker
725 Boardman-Canfield Road, Suite S-3          Stacy L. Hannan
Youngstown, Ohio 44512                         Assistant Attorneys General
                                               150 East Gay Street, 18th Floor
                                               Columbus, Ohio 43215-3130

Filed February 21, 2017
Sent to S.C. Reporter 3/7/17
