[Cite as Pitts-Baad v. Valvoline Instant Oil Change, 2012-Ohio-4811.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                                      :      JUDGES:
CHRISTINA PITTS-BAAD                                  :      Sheila G. Farmer, P.J.
                                                      :      John W. Wise, J.
                        Plaintiff-Appellant           :      Julie A. Edwards, J.
                                                      :
-vs-                                                  :      Case No. 2012 CA 00028
                                                      :
                                                      :
VALVOLINE INSTANT OIL CHANGE,                         :      OPINION
et al.,

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                       Civil Appeal from Stark County
                                                               Court of Common Pleas Case No.
                                                               2011-CV-00576

JUDGMENT:                                                      Affirmed

DATE OF JUDGMENT ENTRY:                                        October 15, 2012

APPEARANCES:

For Plaintiff-Appellant                                        For Defendants-Appellees

LEWIS A. ZIPKIN                                                CARLY E. CHU
GREER A. HOPKINS                                               RYAN W. GREEN
Zipkin Whiting Co., L.P.A.                                     Dinsmore & Shohl, LLP
The Zipkin Whiting Building                                    Suite 1900
3637 South Green Road                                          255 East Fifth Street
Beachwood, Ohio 44122                                          Cincinnati, Ohio 45202
[Cite as Pitts-Baad v. Valvoline Instant Oil Change, 2012-Ohio-4811.]


Edwards, J.

        {¶1}     Plaintiff-appellant, Christina Pitts-Baad, appeals from the January 6, 2012,

Judgment Entry of the Stark County Court of Common Pleas granting the Motion for

Summary Judgment filed by defendants-appellees Valvoline Instant Oil Change, Brian

Fleming and Ashland, Inc.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     On September 8, 2009, appellant was hired by appellee Valvoline Instant

Oil Change (“Valvoline”) by Area Manager Nancy Regula as an Assistant Manager.

Appellee Valvoline is a division of appellee Ashland, Inc. Appellant had been told that

she was on the fast track Assistant Manager program and that she would have 90 days

to    pass      all   certifications      and     the     panel         interviews   for   the   Certified

Technician, Senior Technician and Assistant Manager positions. Appellant knew that if

she did not pass the same, she could be either terminated or demoted.

        {¶3}     Appellant passed her Certified Technician certification on the first try, but

failed her Senior Technician certification after she failed the customer service

component of the exam. Appellant retook the Senior Technician certification and passed

on her second attempt. Appellant failed the Assistant Manager panel interview and did

not pass the same within 90 days of her hiring. However, she was not terminated and

was permitted to continue working as a Senior Technician, but at the higher salary and

title of an Assistant Manager.

        {¶4}     On June 29, 2010, appellant, who was approximately eight months

pregnant at the time, tripped over a cord and fell onto the floor of the service center.

After the Manager asked her if she was okay, appellant indicated that she thought that
Stark County App. Case No. 2012 CA 00028                                                3


she was and went back to work. She continued working and later that evening, while at

home, started to worry about her fall. The next morning, appellant called her doctor’s

office and after speaking with the nurse midwife, decided that she needed to follow “the

injury procedures and make the report that I had fallen at work.” Appellant’s Deposition

Transcript at 40. Appellant then followed company policy and called 1-800-ASHLAND to

report her injury. When asked why she had not followed company procedure on June

29, 2010, appellant responded that she did not believe that there was an injury at that

time and that “the general practice was if there was not an injury requiring medical

attention, no one ever called.” Appellant’s Deposition at 45. No one told appellant on

June 29, 2010, not to report her injury or fall. On July 1, 2010, appellant met with Brian

Fleming and another Manager who told her that she should have reported her injury on

the day it happened. Appellant went on medical leave and did not work after July 1,

2010, before she took her maternity leave.       Although she was ineligible for FMLA

[Family & Medical Leave Act] leave, the Company offered appellant a medical leave of

absence starting on July 1, 2010.

      {¶5}   According to appellant, when she returned from maternity leave on

October 4, 2010, the work environment was different and employees were “distrusting.”

Appellant’s Deposition at 66. Appellant testified that she was able to pump breast milk

while working at appellee Valvoline during her breaks. Appellant used the only available

closed space with a lock in the service center, which was a public bathroom. The toilet

seat in the bathroom had no lid and was broken and the bathroom, according to

appellant, was dirty. Appellant sat on the broken toilet seat while pumping her breast

milk. While appellant indicated that, at longest, she could go up to four hours without
Stark County App. Case No. 2012 CA 00028                                                   4


expressing milk, at times she had to wait longer. On one occasion, appellant had to

wait approximately six hours before expressing her milk. The following testimony was

adduced when she was asked during her deposition whether she talked with anyone at

appellee Valvoline or appellee Ashland about such incident:

       {¶6}   “Q. Did you talk with anybody at Valvoline or Ashland after the incident the

day that you just described for us about what happened?

       {¶7}   “A. No.

       {¶8}   “Let me correct that.

       {¶9}   “Q. All right.

       {¶10} “A. I had mentioned to other employees. I don’t remember specifically

who, but I know I had brought the time thing up after that point, that ‘Hey, I can’t go that

long I’ve got to go - -’ and I did it almost on a daily basis, so I think almost everybody in

the shop was aware that I was supposed to be going on my break somewhere in that

timeframe.

       {¶11} “Q. The four-hour mark - -

       {¶12} “A. Uh-huh.

       {¶13} “Q. - - at the maximum end of time?

       {¶14} “A. Right.

       {¶15} “Q. All right.

       {¶16} “A. Which usually was about mid shift, so for the most part - - for the most

part, they could close to accommodate it, but there were several times where they

would just say ‘We’re too busy. You can’t go yet,’ and it extended past that four-hour

mark.” Appellant’s Deposition at 95-96.
Stark County App. Case No. 2012 CA 00028                                               5


      {¶17} When appellant requested to take an early break to express breast milk,

her supervisor usually allowed her to take the break within a half hour or forty-five

minutes. Appellant indicated that she did not recall bringing up breastfeeding during her

conversation with Brian Fleming, who was an Area Manager, after she returned to work

from maternity leave and did not recall complaining to anyone else at the company

about the issues involving breastfeeding.

      {¶18} On November 9, 2010, appellant, who was working as the Manager, and

Michael Bruno, a relatively new Technician, were working at the store when a Jeep with

a diesel motor came in for an oil change. Appellant had previously serviced the same

Jeep and knew that it had had a problem with its drain plug at another Valvoline Oil

Change store. Appellant was working topside while Bruno was working underneath the

car. During the oil change, after Bruno was taking much longer than normal to perform

his duties, appellant bent down and asked him what was going on and whether

everything was okay. Bruno indicated that he was having a hard time getting the drain

plug out of the vehicle.   When appellant asked Bruno if they were good now, Bruno

responded “I think so.” Appellant’s Deposition at 175. According to appellant, Bruno

indicated that the drain plug was tight. Bruno asked appellant if she could add a small

amount of oil to make sure that the plug would not leak. Although she knew that it was

not standard procedure to add oil, appellant added about a quart, which she admitted

was unusual. Appellant admitted that she did not 100% follow appellee Valvoline’s

SuperPro procedures.

      {¶19} One or two days later, the owner of the Jeep brought it into appellee

Valvoline’s Belden Village store where it was determined that the drain plug was
Stark County App. Case No. 2012 CA 00028                                               6


stripped and the oil pan was damaged. The repair cost appellee Valvoline

approximately $1,000.00. It was the second time that appellee Valvoline had replaced

the same drain pan. Both appellant and Bruno were terminated.

      {¶20} On February 17, 2011, appellant filed a complaint against appellees

Valvoline Instant Oil Change, Ashland, Inc., and Brian Fleming, area manager for

appellee Valvoline.     Appellant, in her complaint, set forth claims of gender

discrimination, retaliation for reporting a workplace injury, retaliation for complaining

about gender discrimination, negligent retention and supervision and intentional

infliction of emotional distress. Appellees filed a Motion for Summary Judgment.

      {¶21} Pursuant to a Judgment Entry filed on January 6, 2012, the trial court

granted summary judgment in favor of appellees on appellant’s gender discrimination

and retaliation claims. On January 25, 2012, appellant filed a Motion to Reinstate and

Notice of 41(A) Voluntary Dismissal with prejudice of her claims for negligent retention

and supervision and intentional infliction of emotional distress. As memorialized in a

Judgment Entry filed on February 6, 2012, the trial court granted such motion and

issued a final appealable order.

      {¶22} Appellant now raises the following assignments of error on appeal:

      {¶23} “I. THE TRIAL COURT ERRED IN FAILING TO FIND THAT GENUINE

ISSUES    OF    MATERIAL      FACT    EXIST    THAT     PLAINTIFF-APPELLANT        WAS

SUBJECTED TO GENDER DISCRIMINATION DURING HER EMPLOYMENT AT

DEFENDANT’S-APPELLEES.
Stark County App. Case No. 2012 CA 00028                                                   7


       {¶24} “II. THE TRIAL COURT ERRED IN NOT FINDING GENUINE ISSUES OF

MATERIAL FACT THAT PLAINTIFF-APPELLANT WAS SUBJECT TO RETALIATION

FOR COMPLAINING ABOUT GENDER DISCRIMINATION.”

                                 SUMMARY JUDGMENT

       {¶25} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As

such, we must refer to Civ.R. 56 which provides, in pertinent part: “* * * Summary

judgment shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case 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. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation and only therefrom, 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, such party being entitled to have the

evidence or stipulation construed most strongly in the party's favor. * * * ”

       {¶26} Pursuant to the above rule, a trial court may not enter a summary

judgment if it appears a material fact is genuinely disputed. The party moving for

summary judgment bears the initial burden of informing the trial court of the basis for its

motion and identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact. The moving party may not make a conclusory assertion

that the non-moving party has no evidence to prove its case. The moving party must
Stark County App. Case No. 2012 CA 00028                                                   8


specifically point to some evidence which demonstrates the non-moving party cannot

support its claim. If the moving party satisfies this requirement, the burden shifts to the

non-moving party to set forth specific facts demonstrating there is a genuine issue of

material fact for trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997–Ohio–259, 674

N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-107, 662 N.E.2d

264.

         {¶27} It is pursuant to this standard that we review appellant's assignments of

error.

                                                  I

         {¶28} Appellant, in her first assignment of error, argues that the trial court erred

in granting summary judgment in favor of appellees on appellant’s gender discrimination

claims. We disagree.

         {¶29} Appellant alleges that appellees discriminated against her by failing to

accommodate and/or provide reasonable accommodations for her during her

breastfeeding, and by failing to offer her training, job opportunities and job duties as her

similarly situated male counterparts. She further alleges that appellees discriminated

against her by, during the interview process and for promotion, asking her questions of

increased difficulty than similarly situated male counterparts and by giving her less

hours than male employees.

         {¶30} R.C. 4112.02(A) prohibits sex discrimination in all matters related to

employment. Birch v. Cuyahoga Cty. Probate Court, 173 Ohio App.3d 696, 2001-Ohio-

6189, 880 N.E.2d 132, ¶ 20 (8th Dist.). “Ohio courts apply federal case law interpreting

Title VII of the Civil Rights Act of 1964 to claims arising under R.C. Chapter 4112 to the
Stark County App. Case No. 2012 CA 00028                                                               9

extent that the terms of the statutes are consistent.” Id., citing Genaro v. Cent.

Transport, Inc., 84 Ohio St.3d 293, 298, 703 N.E.2d 782 (1999), citing Plumbers &

Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm., 66 Ohio St.2d

192, 196, 421 N.E.2d 128 (1981).

        {¶31} Sex discrimination in employment may be proved either by “direct”

evidence or by “indirect” evidence and application of the burden-shifting test set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973), Klaus v. Kilb, Rogal & Hamilton Co. of Ohio (S.D.Ohio 2006), 437 F.Supp.2d

706, 725-726 (S.D. Ohio 2006); Birch, supra, at ¶ 21-23.

        {¶32} “In employment discrimination claims, ‘direct evidence is that evidence

which, if believed, requires the conclusion that unlawful discrimination was at least a

motivating factor in the employer's actions.’ Laderach v. U-Haul [of Northwestern Ohio

(C.A. 6, 2000), 207 F.3d [825,] * * * 829. Direct evidence proves the existence of a fact

without any inferences or presumptions. Id. To establish ‘direct evidence’ of

discrimination through a supervisor's comments made in the workplace, the remarks

must be ‘clear, pertinent, and directly related to decision-making personnel or

processes.’ Dobbs-Weinstein v. Vanderbilt University, 1 F.Supp.2d 783, 798 (M.D.

Tenn. 1998), aff'd, 185 F.3d 542 (6th Cir. 1999) (quoting Wilson v. Wells Aluminum

Corp., 1997 U.S.App. LEXIS 2331, 1997 WL 52921 No. 95-2003, * * * (6th Cir. Feb. 7,

1997) (unpublished)).” Klaus, supra, at 725.

        {¶33} As direct evidence of gender discrimination,1 appellant notes that, when

she was going through training after first being hired, she was later told by Jeremy


1
  While appellant, in alleging direct evidence of discrimination, cited to testimony from Nancy Regula, a
former employee of appellee Valvoline, we note that Regula testified about her own experiences while
Stark County App. Case No. 2012 CA 00028                                                           10


Green, a manager, that “he was harder on me than what he normally was on people

when they first started because he figured I would quit.” Appellant’s Deposition at 105.

As noted by appellees in their brief, appellant never alleged that Green indicated that he

was harder on her because she was a woman or that he was harder on her than he

normally was on men.              Such comments are not direct evidence of gender

discrimination, since they did not clearly refer to her gender. See Creech v. Ohio Cas.

Ins. Co., 944 F.Supp. 1347, 1358-59 (S.D. Ohio 1996) (gender-neutral comments are

insufficient to show discriminatory animus).

       {¶34} Appellant also contends that she has direct evidence of discrimination

because manager Justin Legg refused to order her new uniform pants from Cintas when

she was pregnant. The uniforms were provided by appellee Valvoline to its employees.

Appellant, during her deposition, testified that as her pregnancy progressed, her pants

got tighter and tighter and that she was no longer able to button them. During her

deposition, appellant testified that Justin Legg told her, after she complained, that she

was just going to have to go and buy maternity pants and that he was not going to order

her new uniforms because she had gained weight.

       {¶35} However, according to appellant, Justin Legg told her that he had lost 20

or 30 pounds and that even though his pants were baggy, he never ordered new pants

for himself. Appellant specifically testified, in relevant part, as follows:

       {¶36} “A. I don’t know if this fits into what you’re asking, but Justin, when I was

pregnant and I had gotten quite a ways along - - we have uniforms from Cintas that we



employed at appellee Valvoline. As noted by appellees, her statements were not relevant to appellant’s
discrimination claims because appellant never alleged that she experienced the incidents cited by
Regula. Regula ceased working for appellee Valvoline in August of 2010, which is before appellant was
terminated.
Stark County App. Case No. 2012 CA 00028                                                11


wear at the shops and then they get cleaned. So the uniforms are provided, and my

uniform pants specifically were a size 10, and as my belly started to grow, my pants got

tighter and tighter, of course, and it got the point where I couldn’t button them any

longer, and I spoke with Justin and I said, you know, ‘What should I do? You know, my

pants don’t fit,’ and he said ‘Well, I can’t order you new ones, so I guess you’re just

going to have to go buy some pants,’ and I said ‘Well, if they don’t fit,’ I said, ‘I’m

supposed to go spend, you know, $20 apiece on a pair of pants,’ and he said ‘You can

buy those maternity pants,’ and I told him ‘Well you can’t tuck a shirt into maternity

pants,’ and he said ‘Well, I’m not going to order you new uniforms just because you

gained weight,’ and then he told me that he lost several pounds, I think he said 20 or 30

pounds, he lost 20 or 30 pounds and look how baggy his pants were and he never

ordered new pants.

      {¶37} “So I was several weeks walking around with my pants unbuttoned and

unzipped, with only a belt holding them up and with my shirt pulled down to try to cover

the opened zipper while I was trying to figure out how I was going to get new pants or

what I was going to do for new uniforms pants, and none of my maternity pants or

anything else - - they told me they had to be the dark blue, just like the Valvoline pants,

the uniform pants, and nothing I could find didn’t have the panel on it, and finally one

day I came in to work and Justin said “Hey, I ordered you knew (sic) uniform pants,’ and

I said “how did you do that? You don’t know what size,’ and he said ‘Well, I just

guessed and I ordered you a size 14,’ and those size 14 pants were what I still had

when I was fired in November. Even though I was back down to nearly a size 10, I was

still wearing a size 14 pants.” Appellant’s Deposition at 136-137.
Stark County App. Case No. 2012 CA 00028                                               12


      {¶38} Thus, as evidenced by appellant’s own testimony, there is no evidence

that Legg’s initial refusal to buy appellant another pair of work pants was motivated by

her gender. Moreover, Legg did eventually order appellant new uniform pants.

      {¶39} Appellant also maintains that appellees discriminated against her on the

basis of gender by failing to accommodate her breastfeeding. However, there is no

gender discrimination cause of action for an employer’s failure to accommodate a

breastfeeding employee. See Martinez v. N.B.C., 49 F. Supp.2d 305 (S.D.N.Y. May 18,

1999) (“In this case, there is and could be no allegation that Martinez was treated

differently than similarly situated men. To allow a claim based on sex-plus discrimination

here would elevate breast milk pumping—alone—to a protected status. But if breast

pumping is to be afforded protected status, it is Congress alone that may do so.

Accordingly, Martinez fails to state a prima facie claim of gender discrimination.” Id at

310-311 (footnote omitted). See also Vachon v. R.M. Davis, No. 03-234-P-H, 2004 WL

1146630, (D. Me. April 13, 2004).

      {¶40} Moreover, by appellant’s own testimony, it is clear that appellees made

efforts to accommodate appellant’s need to pump her breast milk. Appellant, during her

deposition, testified that she was told to express milk when she was on a break. She

further testified that she was permitted to use a bathroom, which was the only available

space with a locked door. On most occasions appellees were able to accommodate

appellant’s need to express her milk near the four hour mark. In addition, Jeremy

Green, who was appellant’s supervisor after she returned from maternity leave in

October of 2010, stated, in his affidavit that was attached to appellees’ Motion for

Summary Judgment, that he permitted appellant to express milk during her lunch
Stark County App. Case No. 2012 CA 00028                                                  13


breaks, that he permitted her to eat her lunch while on the clock after she used her

break to express breast milk, and that appellant never complained to him about the

frequency of her breaks or with the conditions of the bathroom she used while

expressing milk. During his deposition, he testified that there was never time when

employees were allowed cigarette breaks, but appellant was not allowed to express

breast milk.

       {¶41} Appellant, as alleged direct evidence of gender discrimination, also points

to comments made to her by Nick Gaston. Appellee Valvoline had instituted a policy

requiring that there be a woman in every store. Appellant, during her deposition,

testified that Nick Gaston, a Technician, told her that such policy was instituted after

“some girl made a fit” and that he did not like girls in the shop and did not think that they

belonged there. Appellant’s Deposition at 129. Appellant also testified that Gaston

indicated that the women appellee Valvoline hired should be cute. When appellant

complained to Justin Legg, the Service Manager, he told her that she had to understand

that “this was a guy’s place and it’s going to be really hard for them to let a woman

come in, because this was their territory…” Appellant’s Deposition at 131. However,

comments made by individuals who are not involved in the decision-making process

regarding the plaintiff's employment do not constitute direct evidence of discrimination.

See Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir. 2002) (holding that a

company manager's opinion that “race was a factor” in the company's decision not to

promote the plaintiff was not direct evidence for purposes of the plaintiff's discrimination

claim because the manager had “no involvement in the decision-making process with

respect to the particular jobs at issue”). Because Gaston was not a decision-maker with
Stark County App. Case No. 2012 CA 00028                                             14


regard to appellant’s employment, his statements cannot be considered direct evidence

of gender discrimination against appellant. See also Carter v. University of Toledo 349

F.3d 269, 273 (6th Cir., 2003). Appellant also contends that she was given the dirtiest

job and was told to “clean the bathroom because it was a girl’s job.”       Appellant’s

Deposition at 108-109. Appellant testified that such statement was made by one of the

Technicians, who clearly was not a decision-maker with respect to appellant’s

employment.

      {¶42} Based on the foregoing, we find that appellant has failed to establish

gender discrimination through direct evidence.

      {¶43} The next issue for determination is whether or not appellant established

gender discrimination though indirect evidence. With respect to the indirect method of

proof, the Ohio Supreme Court has adopted the analytical framework in cases involving

claims of racial or gender discrimination that was established by the United States

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973). Under that framework, a plaintiff-employee establishes a prima

facie case of discrimination by producing evidence of each of the following elements: 1)

he or she was a member of the statutorily protected class; 2) he or she suffered an

adverse employment action; 3) he or 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.

      {¶44} Only after the plaintiff-employee establishes a prima facie case, does the

burden shift to the defendant-employer to overcome the presumption inherent in the
Stark County App. Case No. 2012 CA 00028                                                 15


prima facie case by propounding a legitimate, nondiscriminatory reason for adverse

actions taken against the employee. Then if the employer meets this test, the plaintiff

must show that the rationale set forth by the employer was only a pretext for unlawful

discrimination.

       {¶45} Appellant, in the case sub judice, as indirect evidence of discrimination,

alleged that she did not receive the same training as was offered to male employees.

The trial court found that appellant was unable to establish a prima facie case of gender

discrimination because she was “unable to point to a similarly situated employee who

received more favorable treatment with respect to training.” In Majewski v. Automatic

Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001), the court held that

employees must be treated similarly if they are “similarly situated in all respects,” citing

Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992) (“[T]he individuals with

whom the plaintiff seeks to compare his/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.”).

       {¶46} Appellant now argues that Assistant Manager Jon Newman was similarly

situated to her and that he received more favorable treatment than her with respect to

training. However, unlike appellant, Newman was not hired into the company as an

Assistant Manager. There was evidence that Newman had been with the company

since he was 16, had trained for many years, and then was promoted when he was 18

or 19. See Deposition of Nancy Regula at 52. In contrast, appellant was hired as an

Assistant Manager. She testified during her deposition that she was on a “fast track”
Stark County App. Case No. 2012 CA 00028                                                 16


and had 90 days to pass the required tests and interviews for the Technicians’, Senior

Technicians and Assistant Manager positions. Clearly, appellant and Newman were not

similarly situated. Moreover, while appellant maintains that, because of her gender, the

Assistant Manager panel was harder on her than on Newman, Nancy Regula, who was

an Area Manager at the time of appellants hire, testified that the panel was not harder

on appellant because she was a woman, but rather they were harder on appellant

because of appellant’s attitude. Regula, during her deposition, testified, in relevant part,

as follows:

       {¶47} “Q. Did Ms. Pitts ever complaint to you that at her assistant manager

panel, she received more difficult questions that her male coworker?

       {¶48} “A. Yes.

       {¶49} “Q. Tell me about that.

       {¶50} “A. I agreed with her with that, and I think her and I discussed it that I

thought that that day during those panels they were nasty to her and that I didn’t think

that - - and you’re going to ask me which three did it, and I don’t remember. She may.

But they were hard on her. And her and I had had that discussion because I think she

failed the first one and I thought because they were a little crappy to her and a little

harder than - -

       {¶51} “Q. John Newman?

       {¶52} “A. Right. But in their defense, it wasn’t because of her being the female.

It was because of her attitude and her - - I mean she sat there and in front of them threw

me under the bus and said it was lack of training on my part as well and lack of training
Stark County App. Case No. 2012 CA 00028                                                  17


on their part when it’s not all about what we can teach you. You have to study and do

your part at home too.” Deposition of Nancy Regula at 57.

       {¶53} Appellant also alleges that Jason Strayley received more favorable

training than her because he did not have to take panels while she did. However, like

Newman, Strayley was not hired directly as an Assistant Manager and was not subject

to the “fast track.” As noted by appellees, “Strayley and Newman were not required to

complete the same training regimen as [appellant], and thus they were not subject to

the same standards,…”        Moreover, Nancy Regula testified that years ago, when

Strayley was made an Assistant Manager, there were not Assistant Manager panels

and that if Strayley had been made an Assistant Manager during the last three or four

years, he would have taken the panels. Thus, panels were mandatory for all employees

at the time appellant was hired.

       {¶54} Furthermore, it is significant to note that while appellant failed to complete

the required training within the 90 day period and could have been terminated or

demoted, she was permitted to maintain her title of Assistant Manager and to receive

the Assistant Manager salary. As is stated above, appellant knew that she could be

terminated or demoted if she did not timely complete the same. Appellant was not

terminated or demoted even though she failed to pass her Assistant Manager panels for

over a year. In addition, appellant herself testified that after she asked for more training,

she was permitted to travel to another store to work with another Service Center

Manager. Thus, there is evidence that appellant was treated more favorably than males

in the work place.
Stark County App. Case No. 2012 CA 00028                                                           18


       {¶55} We thus concur with the trial court that appellant failed to identify any

“similarly-situated” male employee who received more favorable treatment than her in

terms of training.

       {¶56} Appellant also maintains that the trial court failed to consider “the disparity

in disciplinary process that pervasively fills the record.” Appellant specifically contends

that the trial court failed to consider the disciplinary records of Jason Strayley, Leroy

Dinger and Linden Bowen.

       {¶57} Appellant contends that Strayley, an Assistant Manager, was disciplined

more than her but not terminated and that this is indirect evidence of discrimination.

Appellant argues that Strayley had 14 disciplinary actions due to poor work

performance, attitude and failing to follow policies and is still employed whereas she

was terminated even though she had only 5 disciplines. She further notes that he was

given a written warning for failing to follow the ten-step SuperPro policy but was not

terminated while she was fired for failing to follow such policy.

       {¶58} However, at the time of his August 3, 2011 deposition, Strayley had been

employed by appellee Valvoline nearly 11 years. During such time, he was disciplined

11 times.2 In contrast, appellant was employed by appellee Valvoline from September

8, 2009, until November of 2010. During this time, appellant was on maternity leave

from July 1, 2010 to October 4, 2010. During this short period of time, appellant

received 5 disciplines. Appellant was written up on March 25, 2010 (for arriving late to

work), May 22, 2010 (for arriving later to work), June 18, 2010 (for acting unprofessional

in front of a customer), June 21, 2010 (for forgetting to fax an employee schedule) and


2
 Appellant asserts that Strayley received 14 disciplines. However, 3 of the so-called disciplines were
suggestions for improvement. Two of the same were contained in performance evaluations.
Stark County App. Case No. 2012 CA 00028                                                19


November 5, 2010 (for failing to meet dollars over posted). Appellant, during her

deposition, testified that there was nothing inappropriate about the discipline that she

received.

      {¶59} With respect to Strayley, appellant also notes that, in August of 2007, he

was written up for failing to follow the ten step SuperPro policy, but was not terminated

while she was terminated after failing to follow the same. However, in Strayley’s case,

the problem was caught before the car drove off of the lot and there was no damage to

the car. In contrast, in appellant’s case, the damage to the car totaled nearly $1,000.00.

More significantly, appellant knew that the exact same vehicle had had problems in the

past with respect to an oil change and, based on Bruno’s indications that he was having

trouble with the drain plug, should have been more careful. There is no dispute that

appellant did not follow appellee Valvoline’s oil change procedures.

      {¶60} Appellant also alleges that she was treated less favorably than Leroy

Dinger and Linden Bowman. Dinger, a Senior Technician, admitted during his

deposition that he was stoned at work a couple of times and that once a manager told

him not to come to work smelling of pot. Appellant notes that Dinger was not terminated

or even sent for drug testing. However, there is no evidence that appellant “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.” See Mitchell, supra.

Appellant was not terminated for drug usage, but rather after her failure to follow

SuperPro procedures which cost appellee Valvoline money.

      {¶61} With respect to Bowman, a Manager, appellant alleges that he stripped

the diesel oil pan on the same Jeep and was not terminated. However, Brian Fleming,
Stark County App. Case No. 2012 CA 00028                                                 20


an Area Manager with appellee Valvoline, stated, in his affidavit which was attached to

appellees’ reply brief in support of their Motion for Summary Judgment, in relevant part,

as follows:

       {¶62} “3. I work for VIOC [Valvoline Instant Oil Change] as an Area Manager

and have been employed in this position since June 7, 2010.

       {¶63} “4. As it relates to the Jeep Liberty that is the subject of Pitts’ case, there

is no evidence that Linden Bowman was responsible for stripping the Jeep’s oil pan.

Further, Bowman’s conduct did not result in any claims being brought against the

Company by the Jeep’s owner.

       {¶64} “5. During an oil change in November, 2010, the Jeep’s oil open was

tripped. The customer demanded that a new oil pan be installed by a Jeep dealership

at the Company’s expense.

       {¶65} “6. On November 15, 2010, a check for $933.17 was issued by the

Company to the dealership to cover the costs of the replaced oil pan in the Jeep. This

was the only claim that the Jeep’s owner brought against the Company.

       {¶66}   “7. It was determined that Pitts and a technician, Michael Bruno, were

responsible for the damage cause to the Jeep and the resulting claim. I made the

decision to terminate both Pitts and Bruno solely based on their involvement with the

damage to the Jeep Liberty’s oil pan and resulting claim of nearly $1,000.”

       {¶67} Thus, unlike in appellant’s case in which the damage to the Jeep cost the

Company approximately $1,000.00, any damage that Bowman caused did not result in

a claim against appellee Valvoline. Moreover, at the time she worked on the same Jeep,

appellant was aware that there had been problems with the Jeep in the past and, based
Stark County App. Case No. 2012 CA 00028                                                21


on Bruno’s indications to her, should have been aware that he was having problems

during the oil change.

       {¶68} In addition, as noted by the trial court, Michael Bruno, a male technician

with no history of complaints or injury reports, also was terminated along with appellant

for his role in the damage to the Jeep that resulted in nearly $1,000.00 in damage.

While appellant argues that Bruno, a “low-level technician”, was not comparable to her

because she was an Assistant Manager, we note that appellant, as the Assistant

Manager on duty, was responsible for ensuring that the work was done properly.

Because appellee Valvoline articulated a legitimate, nondiscriminatory reason for its

decision to terminate appellant, appellant was required to produce sufficient evidence

that such reason was merely pretextual. In order to establish pretext, an employee must

show by a preponderance of the evidence that the proffered reasons for her termination

had no basis in fact, did not actually motivate her termination, or were insufficient to

motivate her termination. Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078,

1084 (6th Cir. 1994).    Appellant has not met such burden As noted by the trial court,

“[w]hile she may not agree with the business decision of VIOC, there is no evidence

from which the jury could reasonably conclude that the decision was motivated by

unlawful discrimination.”

       {¶69} Finally, we note that appellant contends that she worked fewer hours than

her male counterparts and was treated “disparately with regard to assigned hours of

work, finding coverage for her shifts, and receiving personal visitors at work.” Appellant,

however, produced no evidence supporting such allegations. With respect to the hours

that she worked, appellant testified that she was told that she was being assigned less
Stark County App. Case No. 2012 CA 00028                                                 22


hours because she “was too expensive, I screwed up labor.” Appellant’s Deposition at

155. As is stated above, appellant, who was performing a Senior Technician’s duties,

was receiving the salary of an Assistant Manager. Thus, it was cost-effective to send

appellant home to save on labor costs.

       {¶70} In short, based on the foregoing, we find that, reviewing the record in its

entirety, the trial court did not err in granting summary judgment in favor of appellees on

appellant’s gender discrimination claim.

       {¶71} Appellant’s first assignment of error is, therefore overruled.

                                                II

       {¶72} Appellant, in her second assignment of error, argues that the trial court

erred in granting summary judgment in favor of her on her claim that she was retaliated

against for complaining about gender discrimination.

       {¶73} “Ohio law prohibits retaliating against an employee who has opposed any

unlawful discriminatory practice or has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding or hearing under R.C.

4112.01 through 4112.07. R.C. 4112.02(I). When analyzing retaliation claims, Ohio

courts rely on federal case law. Chandler v. Empire Chem., Inc., Midwest Rubber

Custom Mixing Div. (1994), 99 Ohio App.3d 396, 402, 650 N.E.2d 950, 954. To prove a

claim of retaliation, a plaintiff must establish three elements: (1) that she engaged in

protected activity, (2) that she was subjected to an adverse employment action, and (3)

that a causal link exists between a protected activity and the adverse action. Once a

plaintiff successfully establishes a prima facie case, it is the defendant's burden to

articulate a legitimate reason for its action. If the defendant meets its burden, the burden
Stark County App. Case No. 2012 CA 00028                                                 23

shifts back to the plaintiff to show that the articulated reason was a pretext.” Peterson v.

Buckeye Steel Casings 133 Ohio App.3d 715, 727, 729 N.E.2d 813, 821-822 (10 Dist.,

1999).

         {¶74} The parties in this case disagree as to whether or not appellant

complained about gender discrimination. Appellant, in her brief notes that during her

deposition, she testified that she complained about gender discrimination to Justin

Legg, Jeremy Green, Nancy Regula, who was Area Manager, and Ryan, another Area

Manager. Appellees, in turn, point out that during her deposition, appellant, when asked

if she had complained that she was being trained differently, testified that she “didn’t

specify that it was because I was female, but I raised the issue numerous times that I

was not receiving training that was required - - …” Appellant’s Deposition at 151.

Appellees also note that appellant admitted that she did not complain about her breast

feeding concerns to anyone at appellee Valvoline or appellee Ashland.

         {¶75} However, regardless of whether or not appellant complained, we find that

the trial court did not err in granting summary judgment in favor of appellees on

appellant’s retaliation claim. As is discussed above, appellees set forth a legitimate,

non-discriminatory reason for terminating appellant. Appellant, along with Michael

Bruno, was terminated after an improper oil change resulted in nearly $1,000.00 in

damage to the Jeep. Appellant clearly knew that there had been a previous problem

with the same Jeep’s drain plug and should have been aware, based on Bruno’s

comments to her, that he was having problems during the oil change. There is no

dispute that appellant did not follow appellee Valvoline’s oil change procedures and,

added oil to the Jeep when she knew that it was improper to do so. When asked why
Stark County App. Case No. 2012 CA 00028                                              24


she thought that she was fired from appellee Valvoline, appellant testified, in relevant

part, as follows:

       {¶76} “A. I was told it was because I was the manager on duty during the

process of the claim. That was the official reason that I was told.

       {¶77} “Part of the reason that I believe is because several times I had been - -

let me rephrase that. Not several times, but a couple times I had had write-ups for

different things.

       {¶78} “I had one write-up from Jeremy Green.” Appellant’s Deposition at 184.

       {¶79} Appellant has failed to provide any evidence that the stated reason for her

termination was pretextual.

       {¶80} We find, therefore, that the trial court did not err in granting summary

judgment in favor of appellees on appellant’s retaliation claim.
Stark County App. Case No. 2012 CA 00028                                       25


      {¶81} Appellant’s second assignment of error is, therefore, overruled.

      {¶82} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.




By: Edwards, J.

Farmer, P.J. and

Wise, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                              JUDGES

JAE/d0807
[Cite as Pitts-Baad v. Valvoline Instant Oil Change, 2012-Ohio-4811.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


CHRISTINA PITTS-BAAD                                   :
                                                       :
                            Plaintiff-Appellant        :
                                                       :
                                                       :
-vs-                                                   :        JUDGMENT ENTRY
                                                       :
VALVOLINE INSTANT OIL CHANGE,
et al.,                                                :
                                                       :
                      Defendants-Appellees             :        CASE NO. 2012 CA 00028




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                           _________________________________


                                                           _________________________________


                                                           _________________________________

                                                                        JUDGES
