[Cite as Lindsey v. Ohio State Univ. Med. Ctr., 2010-Ohio-2656.]

                                                         Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us




DOROTHY LINDSEY

        Plaintiff

        v.

OHIO STATE UNIVERSITY MEDICAL CENTER

        Defendant
        Case No. 2009-02952

Judge Joseph T. Clark

DECISION




        {¶ 1} On April 12, 2010, the court issued an entry wherein the court granted
defendant’s motion for summary judgment as to plaintiff’s breach of contract and
promissory estoppel claims, and determined that genuine issues of material fact existed
with regard to plaintiff’s race discrimination claim. Upon review of that entry, the court
hereby determines that such entry shall be amended to reflect that the claims of breach
of contract and promissory estoppel were dismissed due to this court’s lack of subject
matter jurisdiction. On May 10, 2010, this case came on for trial on the issue of liability.
Upon the conclusion of plaintiff’s presentation of evidence, defendant moved for an
involuntary dismissal pursuant to Civ.R. 41(B)(2), which provides in relevant part:
        {¶ 2} “After the plaintiff, in an action tried by the court without a jury, has
completed the presentation of the plaintiff’s evidence, the defendant, without waiving the
right to offer evidence in the event the motion is not granted, may move for a dismissal
on the ground that upon the facts and the law the plaintiff has shown no right to relief.
The court as trier of the facts may then determine them and render judgment against
the plaintiff or may decline to render any judgment until the close of all the evidence.”
        {¶ 3} Inasmuch as plaintiff failed to produce sufficient evidence to support her
claim, defendant’s motion to dismiss was granted at trial. The court also announced
that findings of fact and conclusions of law would be issued forthwith.
        {¶ 4} Plaintiff, an African-American female, testified that she accepted a
“voluntary demotion from an unclassified position” to a classified civil service position in
defendant’s department of surgery, on January 2, 2007. Although plaintiff had held
various positions with defendant, she acknowledges that this was the first time that she
had accepted a classified civil service position. Defendant terminated plaintiff from that
position on June 29, 2007. According to plaintiff, defendant discriminated against her
on the basis of her race and treated her differently than other similarly-situated co-
workers who were not African-American. Conversely, defendant maintains that plaintiff
was subject to a six-month probationary period and that she failed to adequately
perform the basic requirements of her job.
        {¶ 5} In support of her discrimination claim, plaintiff asserts that she was
harassed by other staff members who made unfavorable comments to her. When
asked to quantify the frequency of the statements made toward her, plaintiff testified
that such comments were made “regularly enough to be bothersome,” practically “daily.”
Upon cross-examination, plaintiff could recall only one episode that she termed as
pertaining to “skin tones”1 and another statement in reference to whether it was
appropriate to “lick” envelopes or to seal them with tape.                   She also recalled that a
Hispanic co-worker told her that persons in plaintiff’s position “don’t stay.”
        {¶ 6} 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 (1977), 431 U.S. 324, 335-336, fn. 15.                        In a disparate
treatment case, liability depends upon whether the protected trait actually motivated the
employer’s decision.          Hazen Paper Co. v. Biggins (1993), 507 U.S. 604, 610.
“Whatever the employer’s decisionmaking 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.



        1
         In describing the “skin tones” discussion, plaintiff explained that on the day in question, she was
suffering an allergic reaction and had a visible rash on her face. Plaintiff testified that her co-worker
commented about the “scaly” appearance of the rash.
       {¶ 7} Plaintiff may establish a prima facie case of race discrimination either by
direct evidence or by the indirect method established by the United States Supreme
Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792. Under McDonnell
Douglas, an inference of discriminatory intent may be made by establishing that plaintiff:
1) was a member of a protected class; 2) suffered an adverse employment action; 3)
was qualified for the position held; and, 4) that comparable, nonprotected persons were
treated more favorably. Id. See also Austin v. Ohio Dept. of Admin. Servs., Ct. of Cl.
No. 2007-05202, 2008-Ohio-7051, following McDonnell Douglas.
       {¶ 8} The parties do not dispute that plaintiff was in a protected class and that
she was terminated from her position.        In regard to her job performance, plaintiff
admitted that she had to be reminded on several occasions to answer the telephones in
a particular manner and that she had failed to supply the requisite patient identification
numbers when she relayed telephone messages from patients to other oncology staff
members. Defendant’s Human Resources employees, Kate Dillingham and Maxine
Vargas, testified that plaintiff received both coaching and feedback from her supervisor
and others; however, her performance did not improve. Indeed, Vargas testified that
she warned plaintiff in March 2007 that she needed to be more careful with reference to
patient confidentiality. In addition, Vargas stated that she instructed plaintiff that the
procedures in place for the surgical oncology department differed significantly from the
way plaintiff had performed her duties in her previous unclassified position.
       {¶ 9} Upon review of the testimony and evidence presented, the court finds that
plaintiff failed to present sufficient evidence to meet her burden with respect to the third
element necessary to prove indirect racial discrimination. The court finds that ample
evidence was adduced at trial to show that plaintiff was not performing her job duties as
directed by her supervisor and that she failed to demonstrate a genuine interest in
improving her performance when given the opportunity to do so. For example, plaintiff
was offered time off from work to attend a customer service class and she reportedly
arrived late to the class and proceeded to doze during the ensuing discussions.
       {¶ 10} As to the fourth prong, the case law in Ohio makes clear that plaintiff must
show that the other person referenced was comparable in all respects.            Mitchell v.
Toledo Hosp. (C.A.6, 1992), 964 F.2d 577, 582. Thus, “plaintiff need not demonstrate
an exact correlation with the employee receiving more favorable treatment in order for
the two to be considered ‘similarly-situated’; rather, * * * the plaintiff and the employee
with whom the plaintiff seeks to compare himself * * * must be similar in ‘all of the
relevant aspects.’ The 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.” Clark v. City of Dublin, Franklin App. No. 01AP-458, 2002-
Ohio-1440. (Citations omitted.)
       {¶ 11} Upon review of the testimony and evidence presented, the court finds that
plaintiff failed to prove that the persons whom she alleges were treated more favorably
were similar to her in all relevant respects. The court notes that at least two of the co-
workers referenced were medical associates rather than medical assistants, and a third
co-worker was a member of plaintiff’s protected class.      In addition, plaintiff failed to
identify a single co-worker who was serving a six-month probationary period pursuant to
an initial appointment to the classified civil service.
       {¶ 12} For the foregoing reasons, the court concludes that plaintiff failed to
sustain her burden of proof that she was discriminated against on the basis of her race,
that she was treated less favorably as a result of her race, or that the decision to
terminate her employment was racially motivated.




                                                 Court of Claims of Ohio
                                                                        The Ohio Judicial Center
                                                                65 South Front Street, Third Floor
                                                                           Columbus, OH 43215
                                                                 614.387.9800 or 1.800.824.8263
                                                                            www.cco.state.oh.us




DOROTHY LINDSEY

      Plaintiff

      v.

OHIO STATE UNIVERSITY MEDICAL CENTER

      Defendant
      Case No. 2009-02952

Judge Joseph T. Clark
JUDGMENT ENTRY




          The court’s April 12, 2010 entry is hereby amended such that plaintiff’s claims for
breach of contract and promissory estoppel are DISMISSED, for lack of subject matter
jurisdiction.
          On May 10, 2010, this case was tried to the court on the issue of liability. At the
close of plaintiff’s case, defendant moved for dismissal of plaintiff’s case pursuant to
Civ.R. 41(B)(2). The court finds that plaintiff failed to produce sufficient evidence to
support her claim and that upon the facts and the law plaintiff has shown no right to
relief. Accordingly, the court GRANTS defendant’s motion.
          Judgment is hereby rendered in favor of defendant pursuant to Civ.R. 41(B)(2).
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.




                                            _____________________________________
                                            JOSEPH T. CLARK
                                            Judge

cc:


Amy S. Brown                                    John J. Alastra
Velda K. Hofacker                               Kendall D. Isaac
Assistant Attorneys General                     341 South Third Street, Suite 10
150 East Gay Street, 18th Floor                 Columbus, Ohio 43215
Columbus, Ohio 43215-3130

SJM/cmd
Filed May 28, 2010
To S.C. reporter June 9, 2010
