[Cite as Nance v. Lima Auto Mall, Inc., 2020-Ohio-3419.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




ANGELINA NANCE,
                                                           CASE NO. 1-19-54
        PLAINTIFF-APPELLANT,

        v.

LIMA AUTO MALL, INC., ET. AL,                              OPINION

       DEFENDANTS-APPELLEES.



                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV2018 0324

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                             Date of Decision: June 22, 2020



APPEARANCES:

        Matthew G. Bruce for Appellant

        J. Alan Smith for Appellees
Case No. 1-19-54


WILLAMOWSKI, J.

       {¶1} Plaintiff-appellant Angelina M. Nance (“Angelina”) appeals the

judgment of the Allen County Court of Common Pleas, alleging the trial court erred

in granting the defendants-appellees’ motion for summary judgment. For the

reasons set forth below, the judgment of the trial court is affirmed in part and

reversed in part.

                          Facts and Procedural History

       {¶2} Angelina’s father, Henry Nance (“Henry”), worked as the manager of

the Detail Department at Lima Auto Mall, Inc. (“Lima Auto Mall”).           Henry

Deposition, 7, 23. In 2015, a male detailer who worked for Henry at Lima Auto

Mall was terminated for insubordination.       McClain Deposition, 15.      Henry

Deposition, 25. Henry spoke to Rodger McClain (“McClain”), who was the vice

president and general manager at Lima Auto Mall, about hiring Angelina to fill this

vacant detailing position. McClain Deposition, 19, 23-24. Henry stated that

Angelina had previous experience at detailing vehicles and was a “really good

worker * * *.” Henry Deposition, 22, 25.

       {¶3} Henry then offered Angelina a job as a detailer at the Lima Auto Mall.

Angelina Deposition, 26, 46. Angelina accepted this offer and was hired without

having been interviewed. Id. at 46. She began working a full-time job as a detailer

at Lima Auto Mall on May 8, 2015. Id. at 30, 57, 64. While Lima Auto Mall has

employed a number of women, Angelina was the only woman to have applied for a

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job in their detail department and was the first woman to work in the detail

department. Doc. 29, Ex. A. McClain Deposition, 34, 37.

      {¶4} At the time that she was hired, there were around six employees under

Henry’s supervision in the detail department. McClain Deposition, 14. Henry

Deposition, 27. Of these six employees, there were three detailers, including

Angelina. Angelina Deposition, 55, 61. Henry Deposition, 27. For the duration of

her employment at Lima Auto Mall, Henry was Angelina’s direct supervisor.

Angelina Deposition, 64. Henry Deposition, 24.

      {¶5} In his deposition, Henry stated that Angelina was “a hard worker” and

a “good detailer.” Henry Deposition, 9, 21. He also said that “she loved to run her

mouth” and indicated that she “disrespected” him at work. Id. at 9, 20, 38. He

testified that Angelina “would try to tell [him] how to do [his] job” and affirmed

that she would “sometimes” intimidate him. Id. at 10, 19. He further stated that

Angelina would, in front of the other employees, engage in “face to face” arguments

with him and would tell him that he did not know what he was doing. Id. at 38.

      {¶6} He stated that “[s]he would get on her phone and look up stuff and tell

them, no, this is how you do it.” Henry Deposition, 38-39. He stated that he would

get complaints from other employees of Lima Auto Mall about Angelina’s various

comments, saying:

      I have had complaints from other people, from salesmen, you
      know. And I was told many a time, if she wasn’t your daughter,
      I would tell her off real good, but I’m coming to you. And I says,

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       I’ll handle it. And I would handle it. But it would be okay for a
       while and then back again. I just—just—just drove me nuts.

Id. at 14. He stated that he told Angelina, “[y]ou got to give respect to get respect.

And I says, * * * you got to learn, this is your job. * * * [Y]ou can’t go ahead and

just say, hey I’m not going to do it because my dad’s the boss. * * * You do your

job.” Id. at 16.

       {¶7} Henry said that Angelina also spoke about politics and sports in the

detail shop. Henry Deposition, 10, 38. He testified that her political comments

“would upset some of the other guys” and that “she would go * * * on and on and

on.” Id. at 11. He said this “was making [him] so upset because these people are

here to work, not to listen to politics.” Id. Angelina was a “Green Bay Packer fan”

and that “[e]verybody else was worthless.” Id. at 12. Henry reported that

       she would get some of these guys stirred up and, you know, there’s
       a lot of guys there that, you know, they have their own favorite
       teams, and she would go ahead and get them to where they were
       screaming. I would have to come out—and sometimes I wished I
       had a whistle to blow, to cut it, but I didn’t. I’d have to come out,
       stop my work completely, to tell her to go back to work; you guys
       go back to work. That’s the problem that I’ve had.

Id. at 13. On two occasions, he had to tell her that she could either “go back to work

or punch out and go home, cool off, then * * * come back.” Id.

       {¶8} Henry stated that Angelina also talked about her family a great deal.

Henry Deposition, 34. He said,

       Angie would go ahead and say, you know, my wife’s the best
       shopper, my wife is the best at this, my wife is the best at that. I

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        said, Angie, we—we don’t care, you know, we have wives and
        girlfriends, too. I mean, you’re making us look like we have
        nothing at home. I says, if you would, you can go ahead and say
        that she’s good at this, good at that, but I said, don’t every day,
        every day.

        It didn’t have nothing to do with being gay or anything. It just
        happened to be bragging too much.

Id. at 34. McClain had told Henry to tell Angelina to stop talking so much about

her wife, Vanessa Nance (“Vanessa”). Id. at 35.

        {¶9} Henry stated that the other employees in the detail shop did not talk

about Angelina’s sexuality. Id. at 37. He did testify that Angelina would bring up

her lifestyle and would tell the others that they “don’t know what it’s like to be gay.”

Id. at 13. Henry further said that McClain was aware that Angelina was gay when

she was hired and that McClain had never made any comments about Angelina’s

sexual orientation. Id. at 33.

        {¶10} In his deposition, McClain stated that he was aware that Angelina was

gay at the time she was hired and indicated that he was not aware of Angelina

“pushing her sexuality on anyone” at work. McClain Deposition, 16, 38. He also

said,

        When she and her other half got married, she tended to want to
        talk more about the relationship, and everybody was
        complaining. You know, they get tired of hearing about it. And
        her son, this and that and the other. And I said something to
        Henry, to tell her to cool her jets about her personal life. And he
        did. And she got very, very on the defensive on that, towards me.



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Id. at 16. McClain also said that he never talked to Angelina about her lifestyle but

did say that Angelina’s comments about her wife and son did make him feel

uncomfortable. Id. at 44, 45.

       {¶11} McClain said that “rather than being an employee, she created her dad

some headaches.” McClain Deposition, 10. He said that other employees would

complain to him about how Angelina “treated them” and the way that she talked to

Henry. Id. at 10-11. McClain said he would approach Henry about these issues,

saying “Henry, you got to do something about this * * *. He’d say I’ll talk to her.”

Id. at 10. One of the other detailers told McClain that Angelina was “was always

showing him how to do” his job. Id. at 12. Angelina told McClain that “[s]he was

trying to help [her coworker] * * *.” Id.

       {¶12} McClain further testified that he “heard a lot about politics, back

there” and that Angelina would “even come after [him] on politics.” McClain

Deposition, 15. He said,

       Just * * * it got to be on everybody’s nerve, listening to her yab-
       jab. She talked too much. She’s got a mouth. And don’t disagree
       with her, because the argument is on. And she won’t let loose.
       And if you corner her, she’ll get really hatey. She can get really
       nasty.

Id. at 43. He further said that Angelina was “stirring the pot” in the detail shop and

described a confrontation between her and Henry at work. Id. at 47.

       {¶13} In her deposition, Angelina stated that, in the detail department, they

“all argued” and that they argued “every day.” Angelina Deposition, 73, 203. She

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testified that, more than arguing, they “bantered every day. It was like, hey, did you

see this team? Hey, they sucked * * *.” Id. at 203. She also said that everyone

talked about politics in the shop and that she did not impose her views on any of her

coworkers any more than they imposed their views on her. Id. She stated that she

argued with her father about “petty stuff” but that she did not argue with him about

the “actual job.” Id. at 73. She also said that she “always” argued with another one

of her coworkers in the detail shop about sports and politics. Id. at 74.

       {¶14} When asked about how those she worked with addressed her lifestyle,

Angelina stated that Henry once, in 2017, expressed displeasure over the fact that

someone else was gay. Angelina Deposition, 76. However, Angelina said that

Henry “embraced” and “accepted” the fact that she was gay. Id. 76-77. She said

that Henry had told her to stop referring to Vanessa as her wife around McClain

because this made McClain and others at work feel uncomfortable. Id. at 80. In

response to this request, Angelina stopped referring to Vanessa as her wife. Id. at

83-84. She agreed that, aside from this “isolated incident,” there was “no other

expression of dislike or displeasure” with her lifestyle at Lima Auto Mall. Id. at 80.

Angelina indicated that she did not talk “a lot” about her lifestyle with her coworkers

and that she did not impose her views about her lifestyle on others. Id. at 204.

       {¶15} When asked whether she was treated differently on the basis of her

gender, Angelina replied by saying, “I believe the way that I received my raises and

I just feel like I was treated differently than my male counterparts.” Angelina

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Deposition, 197. She believed that she was, in this way, discriminated against

because she was female but also said that she did not know whether she was

discriminated against, in this matter, because she was gay. Id. at 198. McClain

affirmed that “[i]t was unusual for employees to request a raise because [he] usually

evaluate[d] wages once a year and not at the request of employees.” Doc. 29, Ex.

A. He further stated that, in response to her request, he did give her a raise. Doc.

29, Ex. A.

       {¶16} Angelina further stated that she believed the way that overtime was

divided was discriminatory.      Angelina Deposition, 200.       She indicated that

historically one detailer would receive all of the overtime. Id. at 199. Angelina said

that, at one point, she worked out a system with another detailer in which they split

the overtime. Id. at 200. However, after a new detailer was hired, Angelina’s

employer allowed this new employee to have one third of the overtime. Id. When

Angelina asked McClain why this employee had a share of the overtime, McClain

replied that the new employee had “a family too.” Id. at 200. Angelina stated that

it was “like mine [her family] is less important.” Id.

       {¶17} McClain stated that there were three detailers and that the overtime

was evenly split between these three employees. Doc. 29, Ex. A. Further, Henry

testified that he made an overtime schedule for the detailers but that Angelina

decided to make her own schedule for the others to follow. Henry Deposition, 58.

He said that Angelina

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       marked off, what days she wanted to work. And it was kind of
       unfair, but I let her do it, because, you know, she needed the extra
       money. Well, she made up her own and she started to—she went
       ahead and told Dennis she wanted him to work all the Saturdays,
       she would work the Mondays and Thursdays. Well, that’s not
       exactly fair, you know.

Id. at 59. Henry stated that the three detailers argued about the overtime schedule

but eventually agreed on the overtime split. Id.

       {¶18} On December 13, 2017, Angelina reported to her father that she had

been injured while working that morning. Angelina Deposition, 88, 149. She stated

that her vacuum got stuck under the seat of a car. Id. at 109. As she was trying to

pull the vacuum free, she “felt * * * a popping in [her] shoulder, and then * * * had

a sharp pain that went down into [her] shoulder blade.” Id. at 109. No one witnessed

Angelina get injured at work. Id. at 110. Angelina stated that Henry told her not to

file a workers’ compensation claim. Id. at 152.

       {¶19} However, Henry stated that neither he nor McClain told Angelina not

to file a workers’ compensation claim. Henry Deposition, 62. In an affidavit, Henry

stated the following:

       I never told Angie not to file a workers’ compensation claim. I
       told her if she wanted to file a workers’ compensation claim, then
       file it. If she wanted to go to the hospital and have her medical
       bills taken care of, then the company would pay them for her and
       she didn’t have to file a workers’ compensation claim. That’s the
       choice that everyone at Lima Auto Mall can make—the company
       will pay your bills, but if you want to file a workers’ compensation
       claim then you can file it. Other employees at Lima Auto Mall
       have filed workers’ compensation claims. For example, Jeff


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       McDaniel filed a workers’ compensation claim for a back injury.
       He still works at Lima Auto Mall.

Doc. 29, Ex. B. McClain, in his deposition, stated that he told Henry to tell Angelina

“we’ll pay to have it looked at; you know, don’t file workman’s comp, I’ll pay to

have it taken care of.” McClain Deposition, 59.

       {¶20} After she informed her father of her injury, Vanessa picked Angelina

up from work and took her to get medical attention. Id. at 149. She first went to

Urgent Care where she reported that she injured her shoulder while reaching for

something in a cabinet at her home. Id. at 150. Ex. F. When asked why she said

her injury occurred at home, Angelina stated that she was told by Henry not to report

a workplace injury and that, for this reason, she lied. Id. The doctor at Urgent Care

issued her a work excuse that stated the following restriction: “No work 12/13-

12/14/17 due to injury.” Ex. M. See Ex. F.

       {¶21} Angelina then went to see Dr. Ana Pere (“Dr. Pere”), who was her

family doctor. Ex. H. Angelina Deposition, 194. Angelina also told Dr. Pere that

she injured her arm while reaching for something above her head. Ex. H. Angelina

Deposition, 177, 181. She further reported that she had been experiencing “shoulder

pain off and on for the last several months.” Ex. H. Dr. Pere gave Angelina a note

that stated she could return to work on December 18, 2017. Ex. M.

       {¶22} On December 14, 2017, Angelina went to the Orthopaedic Institute of

Ohio (“OIO”). Ex. G. Dr. Mark McDonald (“Dr. McDonald”) provided her with a


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work slip that stated Angelina could “work with [her] left hand only. [N]o right

hand buffing or lifting until f[ollow] up with us.”       Ex. M.     Her follow up

appointment was to occur two weeks after her initial appointment at OIO. Ex. G.

She stated that she “actually had to con the doctor into letting me do light duty

because I told him my dad was my manager and that he would make sure I didn’t

do anything * * * to irritate my shoulder.” Angelina Deposition, 142.

       {¶23} Angelina then brought these doctor’s notes to McClain at Lima Auto

Mall. Angelina Deposition, 195. She stated the following about this interaction:

       I gave Rodger the paper; and he kind of snickered and said, I
       wouldn’t hire a one-armed man, let alone a one-armed woman.
       What am I supposed to do with someone with one arm?

       And I said, so what you’re saying is—and he said, you need to just
       get completely taken off, I don’t have anything for you to do.

Id. at 142. She also stated that McClain told her “to go ahead and get taken off

work.” Id. at 195.

       {¶24} When asked whether he said he “would never hire a one-armed man,

let alone a one-armed woman,” McClain said,

       Yeah, I probably said—as a joke. I mean, sitting there laughing,
       say, Angie, I wouldn’t hire a one-armed man to buff a car, I can’t.
       That’s just a slang comment. I mean, I didn’t have any meanness
       to it, in any way. But, I mean, more of a job, if I said it.

McClain Deposition, 67. In his affidavit, McClain admitted the following: “I made

a joke while laughing that I wouldn’t hire a one-armed person, which I did not intend

to be mean, but as a joke.” Doc. 29, Ex. A. He further stated that he “did not have

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any light duty available for her” at the time that she brought in her doctor’s note.

Doc. 29, Ex. A.

       {¶25} McClain stated that, after his conversation with Angelina—“might

have been the next day,” Henry came to him and talked about what Angelina could

do in the detail department. McClain Deposition, 66. McClain told Henry that

Angelina could work as a cleaner but that he “was not paying her what [he was]

paying her to buff cars.” Id. McClain stated that Henry offered Angelina this light

duty position but that Angelina refused this offer. Id. at 62, 64, 68. He stated that,

when Henry made this offer to Angelina, some of the other employees left the detail

shop, came to McClain, and informed him that Angelina was “on her dad like you

wouldn’t believe.” Id. at 68-69.

       {¶26} Henry testified that he spoke with McClain, who approved of allowing

Angelina to work as a cleaner instead of as a detailer. Henry Deposition, 45. At

some point, Henry called Angelina on the phone while he was at home to discuss

whether she would consider light duty. Id. at 41, 47. He testified about the ensuing

conversation with her as follows:

       I says, I’m not bringing you back on detailing. I can’t—I don’t
       want to injure your shoulder. And I says, you know—and that’s
       the way I feel.

       I can give you some light duty, to where you can still make some
       money. Well—and I did this on the phone. Okay. And she ripped
       me from one end to the other. And my wife is sitting there and
       she says, what is going on? And she could hear her. And I said, I
       offered her to come back light duty, not detailing, because of her

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       shoulder, her injury; she told me, she wasn’t coming back. She
       said, I’m not coming back, I’m taking my time off, and that’s the
       way it is.

       I said, Angie, so you’re refusing a position that’s not going to
       bother your shoulder or nothing, to where you can earn some
       money? Because she complained that she wasn’t getting no
       money, because, you know, she was at home, she wasn’t working.

       And I told her, you know, if you’re going to refuse me, then, you
       know, that’s up to you. But we got into it. We didn’t talk for a
       while. And then all the sudden, she just pops up and wants to
       come back to work. And we don’t run a business like that * * *.

Henry Deposition, 41-42. He also stated that she would have gotten the same

amount of pay working as a cleaner. Id. at 45-46.

       {¶27} Angelina testified that Henry called to tell her that they were able to

find some light duty work for her to do. Angelina Deposition, 135. She stated that

she was “happy to come back” and was “willing to do whatever * * *.” Id. at 136.

She told Henry that she had been in the process of working with OIO to get the

proper paperwork submitted for her short-term disability since McClain had

previously told her that she should be off from work. Id. at 98-99, 136. She also

said that the personnel manager at Lima Auto Mall wanted a medical release from

her doctor before she could work. Id. at 98. Angelina stated that she tried to explain

this to Henry but that he was not listening. Id. at 98-99, 136.

       {¶28} Angelina stated that she hung up on Henry and that he then left her an

angry voicemail in which he stated the following: “If either one of you ever f***

with me again and say s*** you did, I will f***ing beat you’re a**es. You got that?

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You f***ing dumb a**es.” Angelina Deposition, 135. When asked whether it was

appropriate to threaten an employee, Henry replied by saying, “No.”           Henry

Deposition, 48. When asked whether it was appropriate to threaten his daughter,

Henry stated that “if you know what she said to me, yes. Yes.” Id. He also said,

“You didn’t hear what’s on this side, why I threatened. You guys only heard that

side, of me yelling.” Id. at 46.

       {¶29} On December 19, 2017, Henry filled out an employee warning notice

for Angelina because she did not return to work on December 18, 2017. Ex. L. The

document stated that Angelina was “called * * * to come back for light duty work”

but noted that she did not return. Ex. L. The report further stated that Angelina had

wanted to work in the office but that no work was available for her there. Ex. L.

Henry testified that he showed this document to Angelina and that she had refused

to sign this notice. Henry Deposition, 40-41. Angelina testified that she never saw

this employee warning notice. Angelina Deposition, 192.

       {¶30} On December 29, 2017, Angelina returned to OIO for her follow up

appointment. Ex. G. Her medical records indicate that she should be “off another

two weeks and then she [would be] able to return to work full duty, no restrictions

at that time.” Ex. G. On the date of her follow up appointment, OIO issued a work

slip that stated Angelina should be “off work until 1.15.18, return to work full duty

no restrictions.” Ex. 1. When shown a copy of this work slip, Henry stated that he

was not aware of this document and did not know when Angelina was going to

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return to work. Henry Deposition, 53. McClain testified he remembered seeing this

work slip before his deposition but could not recall when he first saw this document.

McClain Deposition, 64.

       {¶31} McClain testified that Angelina filed for short term disability and that

Lima Auto Mall’s insurer paid her short term disability benefits.           McClain

Deposition, 60. He then stated that Angelina

       was told to come back to work—they told her to come back. She
       decided not to come back, she decided to take two more weeks of
       therapy. And even our insurance company called and said, is she
       back to work today? Because they were paying her disability.
       And I was there when [the personnel manager] said, they just
       called and I told them, no, she didn’t show up.

       She’s off of disability, but she didn’t come back. And upon
       herself, decided to take two more weeks of therapy.

       In the meantime, Henry and I talked about how’s it going in back,
       there, without her. He says, it’s been very peaceful, it’s been very
       good and we’re getting along fine. I said, fine, I need to cut. When
       she comes back, I’m going to lay her off; you can’t do it, I’m going
       to handle it.

Id. at 61.

       {¶32} On January 15, 2018, Angelina returned to work at Lima Auto Mall.

Angelina Deposition, 196. At this point, she did not have any medical restrictions

as to her activities and had not worked at Lima Auto Mall since her injury on

December 13, 2017. Id. at 130, 196. After Angelina arrived, Henry, on McClain’s

request, sent her to McClain’s office. Henry Deposition, 66. At the meeting in

McClain’s office, McClain informed Angelina that her position at Lima Auto Mall

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was being terminated as of that date. Henry Deposition, 66. McClain Deposition,

77. Angelina Deposition, 132. Ex. 2. Only Angelina and McClain were present at

this meeting in McClain’s office. McClain Deposition, 77. Angelina Deposition,

129.

       {¶33} In her deposition, Angelina testified that the “gist” of what McClain

told her in this meeting was as follows:

       [H]e said, unfortunately, I have to let you go. He said, at this point
       you’re a liability to our company with that shoulder being as bad
       as it is. My wife had the same shoulder injury. It’s probably not
       going to heal, and basically I’m doing you a favor. * * * [H]e said
       I will make sure you get unemployment.

Angelina Deposition, 132. Angelina also said that McClain indicated that “he felt

like [her] injury was really bad, his wife had experienced the same thing, and he just

didn’t feel like [she] was going to heal * * *.” Angelina Deposition, 129.

       {¶34} Regarding the meeting in which he laid off Angelina, McClain said

that he did remember telling Angelina about his wife’s rotator cuff surgery.

McClain Deposition, 78. However, he could not recall whether he told Angelina

that she was a liability to the company. Id. McClain stated that Angelina’s injury

did not have any impact on his decision to terminate her. Id. at 78. He also said

that she was qualified for this position and good at her job. Id. at 24. He testified

that Angelina was terminated because business had “slowed down” and because he

“need[ed] to lighten up the employees back there.” Id. at 77. To support this claim,

McClain pointed to the fact that he had opted not to fill the position of another

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detailer who had left the company several weeks after Angelina was terminated. Id.

at 83.

         {¶35} McClain indicated that there were somewhere in between six and eight

employees in the detail department when Angelina was hired. McClain Deposition,

13-14. He then said that, by the time of the deposition, there were around three and

a half positions, not counting Henry’s job, in the department. Id. at 14. He also

stated that Lima Auto Mall had been cutting positions “to make ends meet” and

“tightening up the budget, so [they] can stay in business.” Id. at 19. In 2009, Lima

Auto Mall had between 120 and 130 employees. Id. This number had been reduced

to in between roughly sixty and sixty-five employees. Id. at 18. He further testified

that Lima Auto Mall used to have eight franchises but only had two at the time of

this litigation. Id. at 13. Doc. 29, Ex. A.

         {¶36} Lima Auto Mall stated, in its response to the Ohio Department of Job

and Family Services request for separation information, that the final event that

caused her discharge was that she “had been on disability from 12-13-17 and was

to report back 1-15-18. When she return [sic], things had slowed down plus she had

injured her shoulder and we did not want any more injuries to her.” Ex. 3. When

asked what this response meant, McClain said, “I didn’t want her to get hurt again,

doing her job. She got hurt doing the job. I didn’t want her to get hurt, doing the

job, again. Plus, we had slowed down, we didn’t need her.” McClain Deposition,

82.

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       {¶37} McClain was then asked about Lima Auto Mall’s response to

Angelina’s seventh interrogatory, which inquired into the reason that she was

terminated. McClain Deposition, 84. Lima Auto Mall stated, in part, that Angelina

was terminated for “insubordination.” Id. McClain stated that insubordination “was

part of it.” He further said, “I have explained * * * how she was to her father, her

boss, and to other people back there. Over—basically, overriding her father, as a

manager, she was insubordinate. And we slowed down.” Id. at 85.

       {¶38} He stated that he never formally reprimanded Angelina and would

instead talk to Henry, who was her supervisor and father. McClain Deposition, 86.

He stated that it was a “unique situation” as Henry was Angelina’s father and

supervisor. Id. at 87. For this reason, McClain was unsure of how Henry handled

disciplinary issues with Angelina, though McClain was not aware of any formal

reprimands for insubordination. Id. Henry testified that he never gave Angelina

formal evaluations for her performance. Henry Deposition, 32. He also said that

he did not formally discipline Angelina but, “[a]s a manager” would give her a

“fatherly threat” that he would “send [her] home.” Id. at 40. Henry stated that,

since Angelina left, the detail shop has been “peaceful. Nobody is arguing with

nobody.” Id. at 39.

      {¶39} On January 26, 2018, after she had been terminated and had met with

her attorney, Angelina decided to file a workers’ compensation claim. Angelina

Deposition, 105. Ex. D. McClain stated that Lima Auto Mall fought Angelina’s

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Case No. 1-19-54


worker’s compensation claim. McClain Deposition, 72. While McClain could not

remember the specific reason that the company fought this claim, he stated the

following at his deposition: “I don’t think she deserved workers’ comp, to be honest

with you. I paid the bills and she was released to come back to work with no

problems.” Id. 71-72.

       {¶40} On July 13, 2018, Angelina filed a complaint with the trial court,

naming Lima Auto Mall, Inc. and McClain as defendants. Doc. 1. This complaint

listed the following claims: workers’ compensation retaliation, wrongful

termination in violation of public policy, gender or sex discrimination, wrongful

termination based on gender discrimination, disability discrimination or perceived

disability discrimination, wrongful termination based on disability discrimination,

and intentional infliction of emotional distress. Doc. 1. The defendants filed a

motion for summary judgment on May 1, 2019. Doc. 29. On June 28, 2019,

Angelina filed a brief in opposition to the defendants’ motion for summary

judgment. Doc. 38. On August 14, 2019, the trial court granted the defendants’

motion for summary judgment. Doc. 43.

       {¶41} The appellant filed her notice of appeal on September 11, 2019. Doc.

45. On appeal, Angelina raises the following assignments of error:

                           First Assignment of Error

       The trial court erred when it granted summary judgment to
       defendants on plaintiff’s claim of wrongful termination in
       violation of public policy.

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Case No. 1-19-54



                          Second Assignment of Error

      The trial court erred when it granted summary judgment to
      defendants on plaintiff’s claim of gender/sex discrimination.
                        Third Assignment of Error

      Appellees were not entitled to summary judgment on appellant’s
      sexual orientation discrimination claims.

                          Fourth Assignment of Error

      The trial court erred when it granted summary judgment to
      defendants on plaintiff’s claim of disability discrimination.

We will first set forth the legal standard governing motions for summary judgment

before we proceed to examine each of Angelina’s assignments of error.

                     Legal Standard for Summary Judgment

      {¶42} Under the Ohio Rule of Civil Procedure 56(C), a trial court may grant

a motion for summary judgment when

      (1) [n]o genuine issue as to any material fact remains 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 viewing such evidence most
      strongly in favor of the party against whom the motion for
      summary judgment is made, that conclusion is adverse to that
      party.

M.H. v. Cuyahoga Falls, 134 Ohio St.3d 65, 68, 2012-Ohio-5336, 979 N.E.2d 1261,

¶ 12, quoting Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267

(1977), citing Civ.R. 56(C).

      “The party moving for summary judgment has the initial burden
      ‘to inform the trial court of the basis for the motion, identifying

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Case No. 1-19-54


       the portions of the record, including the pleadings and discovery,
       which demonstrate the absence of a genuine issue of material
       fact.’” Middleton v. Holbrook, 3d Dist. Marion No. 9-15-47, 2016-
       Ohio-3387, 2016 WL 3223956, ¶ 8, quoting Reinbolt v. Gloor, 146
       Ohio App.3d 661, 664, 767 N.E.2d 1197 (3d Dist.2001).

Williams v. ALPLA, Inc., 2017-Ohio-4217, 92 N.E.3d 256 (3d Dist.).

       ‘The burden then shifts to the party opposing the summary
       judgment.’ “In order to defeat summary judgment, the
       nonmoving party may not rely on mere denials but ‘must set forth
       specific facts showing that there is a genuine issue for trial.’”

(Citations omitted.)   Bates Recycling, Inc. v. Conaway, 2018-Ohio-5056, 126

N.E.3d 341, ¶ 10-11 (3d Dist.), quoting Byrd v. Smith, 110 Ohio St.3d 24, 2006-

Ohio-3455, 850 N.E.2d 47, ¶ 10, quoting Civ.R. 56(E).

       {¶43} Appellate courts consider a summary judgment order under a de novo

standard of review. James B. Nutter & Co. v. Estate of Neifer, 3d Dist. Hancock

No. 5-16-20, 2016-Ohio-7641, ¶ 5. “[B]ecause summary judgment is a procedural

device to terminate litigation, it must be awarded with caution.” Murphy v.

Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d 138 (1992). For this reason,

on appeal, “[t]he nonmoving party * * * receives the benefit of all favorable

inferences when evidence is reviewed for the existence of genuine issues of material

facts.” Ditech Financial, LLC v. Akers, 3d Dist. Union No. 14-18-02, 2018-Ohio-

2874, quoting Byrd at ¶ 10.




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Case No. 1-19-54


                             First Assignment of Error

       {¶44} Angelina argues that the appellees were not entitled to summary

judgment on her wrongful termination in violation of public policy claim.

                                   Legal Standard

       {¶45} “In Ohio, the common-law doctrine of employment at will governs

employment relationships.       The act of terminating an at-will employee’s

relationship with an employer usually does not give rise to an action for damages.”

Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825,

¶ 11. Generally, “absent an employment contract, an employee is at will and may

be terminated at anytime for any lawful reason or for no reason at all.” Alexander

v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 95727, 2012-Ohio-1737, ¶ 20.

       {¶46} However, there is “an exception to the employment-at-will doctrine

that applies when an at-will employee is discharged or disciplined for reasons that

contravene clear public policy expressed by the legislature in its statutes.” Sutton

v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938,

¶ 8. Under this exception, the common law doctrine of employment at will “yield[s]

when it contravenes the public policy as established by the General Assembly in

R.C. 4123.90.” Id.

       {¶47} Under this exception, an action for wrongful discharge in violation of

public policy exists where a plaintiff establishes the following:



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Case No. 1-19-54


       (1) a clear public policy exists and is manifested in a state or
       federal constitution, in statute or administrative regulation, or in
       the common law (the clarity element), (2) dismissing employees
       under circumstances like those involved in the plaintiff’s
       dismissal would jeopardize the public policy (the jeopardy
       element), (3) the plaintiff’s dismissal was motivated by conduct
       related to the public policy (the causation element), and (4) the
       employer lacked an overriding legitimate business justification
       for the dismissal (the overriding-justification element). Collins v.
       Rizkana (1995), 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653. The
       clarity and jeopardy elements involve questions of law; the
       causation and overriding-justification elements involve questions
       of fact. Id. at 70.

Sutton at ¶ 9. R.C. 4123.90 reads as follows:

       No employer shall discharge, demote, reassign, or take any
       punitive action against any employee because the employee filed
       a claim or instituted, pursued or testified in any proceedings
       under the workers’ compensation act for an injury or
       occupational disease which occurred in the course of and arising
       out of his employment with that employer.

R.C. 4123.90. After examining this statutory provision, the Supreme Court of Ohio

held that there is

       a common-law tort claim for wrongful discharge in violation of
       public policy when an injured employee suffers retaliatory
       employment action after an injury but before he or she files,
       institutes, or pursues a workers’ compensation claim.

Id. at ¶ 37. Thus, “Sutton creates a very limited exception to the at-will employment

doctrine for injured employees who suffer retaliation prior to instituting or pursuing

a workers’ compensation claim.” Arnett v. Precision Strip, Inc., 2012-Ohio-2693,

972 N.E.2d 168, ¶ 19 (3d Dist.), quoting Rose v. CTL Aerospace, Inc., 12th Dist.

No. CA2011-09-171, 2012-Ohio-1596, ¶ 16.

                                        -23-
Case No. 1-19-54


       {¶48} Courts have used a burden shifting framework in analyzing the

causation and overriding-justification elements of a wrongful termination in

violation of public policy claim. White v. Simpson Industries, Inc., 1 Fed.Appx.

462, 468 (6th Cir. 2001); Hall v. ITT Automotive, 362 F.Supp.2d 952, 963 (N.D.

Ohio 2005); Kittle v. Cynocom Corp., 232 F.Supp.2d 867, 874-875, (S.D. Ohio

2002); Whitaker v. First Energy Nuclear Operating Co., 6th Dist. Ottawa No. OT-

12-021, 2013-Ohio-3856, ¶ 31; Sells v. Holiday Mgt. Ltd., 10th Dist. Franklin No.

11AP-205, 2011-Ohio-5974, ¶ 39.

       {¶49} Under this framework, if the plaintiff establishes some evidence of

causation, the employer is to “offer[] evidence of an overriding business

justification for [the employee’s] termination.”        Putney v. Contract Bldg.

Components, 3d Dist. Union No. 14-09-21, 2009-Ohio-6718, ¶ 70. In response, the

plaintiff must identify or “produce evidence that the [employer] lacked such

justification.” Id. (implicitly applying this burden shifting framework to a wrongful

termination in violation of public policy claim).

       {¶50} “To establish causation, a plaintiff who alleges wrongful discharge in

violation of public policy as expressed in R.C. 4123.90 must prove that the adverse

employment action was retaliatory * * *.”           Sutton, supra, at ¶ 37.    “[N]o

presumption of retaliation arises from the fact that an employee is discharged soon

after an injury.” Id. at ¶ 10. Rather, “the law requires the plaintiff to show

purposeful retaliation; that is, a specific intent to discharge an employee for

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Case No. 1-19-54


engaging in the protected act of filing a workers’ compensation claim.” (Emphasis

sic.) Glenn v. Hose Master, L.L.C., 2016-Ohio-1124, 61 N.E.3d 609, ¶ 11 (8th

Dist.). Thus, a plaintiff must prove, by a preponderance of the evidence, that there

was “a nexus between the adverse employment action and the potential workers’

compensation claim.” Sutton, supra, at ¶ 10, 37.

       {¶51} “To establish the overriding-justification element, [the plaintiff] must

prove that [the employer] lacked an overriding business justification for firing him

[or her].” Sutton, supra, at ¶ 10. If the employer produces evidence that it had an

overriding, legitimate business justification for the employee’s termination, then the

plaintiff may demonstrate a genuine issue of material fact exists as to this element

by identifying evidence that the purported overriding, legitimate business

justifications were pretextual. Sells, supra, at ¶ 22.

       {¶52} While the causation and overriding-justification elements of this claim

are questions of fact,

       ‘courts routinely grant summary judgment when the plaintiff
       fails to raise an issue of material fact with respect to either
       element.’ Kirk v. Shaw Environmental, Inc. (May 25, 2010), N.D.
       Ohio No. 1:09-CV-1405 [2010 WL 1387887. ‘[U]pon the movant’s
       showing the lack of causation and the existence of overriding
       justification through depositions, the [plaintiff] has the reciprocal
       burden to demonstrate causation and the lack of an overriding
       justification’ to avoid summary judgment. Barnes v. Cadiz, 7th
       Dist. No. 01 531 CA, 2002-Ohio-1534, ¶ 15.

Sells, supra, at ¶ 39.



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Case No. 1-19-54


                                   Legal Analysis

       {¶53} Angelina argues that her claim of wrongful termination in violation of

public policy fits within the exception that the Ohio Supreme Court delineated in

Sutton. Sutton, supra, at ¶ 37. Since Angelina relies upon the Sutton analysis to

satisfy the questions of law raised by the clarity element and the jeopardy element,

our analysis will be limited to whether she has identified genuine issues of material

fact that exist for trial regarding the causation and overriding-justification elements

of the public policy exception test. See Id. at ¶ 28.

       {¶54} To substantiate the causation element, Angelina first argues that her

employer instructed her not to file a workers’ compensation claim and told her not

to report a workplace injury. Angelina Deposition, 146. In his deposition, Henry

denied telling Angelina not to file a workers’ compensation claim and also stated

that McClain did not tell Angelina that she should not file a workers’ compensation

claim. Henry Deposition, 62. Henry said,

       I told her if she wanted to file a workers’ comp, file it; if you want
       to just go to the hospital, get it done, taken care of, our company
       would pay for it, regardless. Regardless, it would be paid for.

       ***

       You got your choice. You can file it or you can go and get it done.
       I’ve done it many a time. They paid my bill without filing
       workers’ comp.

Id. at 61-63. In an affidavit, Henry stated the following:



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Case No. 1-19-54


       I never told Angelina not to file a workers’ compensation claim. I
       told her if she wanted to file a workers’ compensation claim, then
       file it. If she wanted to just go to the hospital and have her medical
       bills taken care of, then the company would pay for her and she
       didn’t have to file a workers’ compensation claim. That’s the
       choice that everyone at Lima Auto Mall can make—the company
       will pay your bills, but if you want to file a workers’ compensation
       claim then you can file it. Other employees at Lima Auto Mall
       have filed workers’ compensation claims. For example, Jeff
       McDaniel filed a workers’ compensation claim for a back injury.
       He still works at Lima Auto Mall.

Doc. 29, Ex. B. In his deposition, however, McClain testified: “I said, don’t file a

workman’s comp, I’ll pay for whatever it takes, the hospital bill. Which I do that to

all employees. I was advised to do that by workman’s comp, when I went to

meetings in Columbus, at OADA [Ohio Automobile Dealers Association].”

McClain Deposition, 68. McClain then stated that Lima Auto Mall had paid for

Angelina’s medical bills. Id. at 70-71.

       {¶55} While there is a dispute about whether Henry told Angelina not to file

a workers’ compensation claim, Angelina does not dispute that Henry indicated to

her that Lima Auto Mall would cover the costs of her medical bills in the event that

she did not file a workers’ compensation claim. Angelina Deposition, 146. Further,

Angelina does not contend that Lima Auto Mall did not pay for her medical bills.

Her testimony also indicates that she applied for and received short term disability

benefits from Lima Auto Mall’s insurer for the duration of her time away from work.

Angelina Deposition, 215. McClain Deposition, 70-71.



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Case No. 1-19-54


         {¶56} According to Henry and McClain’s testimony, the process at Lima

Auto Mall, following a workplace injury, was to have the injured employee either

file a workers’ compensation claim or have the company pay for the cost of the

relevant medical bills. The fact that Angelina had Lima Auto Mall pay for her

medical bills would lead Henry and McClain to believe that she was not going to

file a workers’ compensation claim. See Glenn, supra, at ¶ 32. Thus, Angelina’s

first argument does not demonstrate that Henry or McClain believed Angelina was

going to file a workers’ compensation claim and that this belief, in turn, motivated

her termination.

         {¶57} Angelina next argues that the “temporal proximity” between her

termination on January 15, 2018 and the filing of her workers’ compensation claim

on January 26, 2018 establishes causation. Appellant’s Brief, 15-16. See Angelina

Deposition, 105, 130. Ex. D. In her brief, Angelina cites to a rule enunciated in

Knepper v. Ohio State University:

         Close temporal proximity between the employer’s knowledge of
         the protected activity and the adverse employment action alone
         may be significant enough to constitute evidence of a causal
         connection, but only if the adverse employment action occurs
         ‘very close’ in time after an employe[r]1 learns of a protected
         activity.


1
  In Knepper, the rule states “employee” instead of “employer.” Knepper, supra, at ¶ 27. We understand
this to be a typo. In a case released five days before Knepper, the Tenth District stated this rule as follows:
“[w]here an adverse employment action occurs very close in time after an employer learns of a protected
activity, such temporal proximity between the events is significant enough to constitute evidence of a causal
connection for the purposes of satisfying a prima facie case of retaliation.” (Emphasis added.) Sells, supra,
at ¶ 33, quoting Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008).

                                                    -28-
Case No. 1-19-54


(Emphasis added.) Knepper v. Ohio State Univ., 10th Dist. Franklin No. 10AP-

1155, 2011-Ohio-6054, ¶ 27. In this analysis, it is “knowledge coupled with a

closeness in time that creates an inference of causation.” Knepper at ¶ 27. See

Putney, supra, at ¶ 57 (holding that it is a “small subset of cases where temporal

proximity alone may be sufficient to establish causality.”).

       {¶58} In this case, Angelina did not file a workers’ compensation claim until

after she was terminated. Angelina Deposition, 101. Henry and McClain did not

have knowledge that Angelina had engaged in this protected activity of filing a

workers’ compensation claim until after she was terminated. In Karsnak v. Chess

Fin. Corp., the Eighth District considered a situation in which an employee filed a

complaint with the EEOC one day after she was terminated and held

       That an event in the future could cause something in the past is a
       proposition that would challenge the space-time continuum. We
       dare not challenge the fabric of our existence. It is for this reason
       that we cannot find that the filing of the EEOC was the protected
       activity that caused [the employer’s] termination of appellant.

Karsnak v. Chess Fin. Corp., 8th Dist. Cuyahoga No. 97312, 2012-Ohio-1359, ¶ 45.

See Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261, ¶

22. Thus, the mere closeness in proximity between these two events does not, by

itself, suggest a causal connection.

       {¶59} More importantly, there is also no evidence that Henry or McClain

knew that Angelina was going to file a workers’ compensation and preemptively

terminated her. In fact, Angelina cannot demonstrate that her employer knew that

                                        -29-
Case No. 1-19-54


she was going to file a workers’ compensation claim at the time that she was

terminated because her testimony does not indicate that she was even considering

such an action at the time that she was terminated. Angelina Deposition, 88, 108.

She testified that she met with a lawyer a few days after she lost her job and then

decided to file a workers’ compensation claim. Angelina Deposition, 101, 108.

While seeking medical treatment for her shoulder, Angelina also told the relevant

medical professionals that she had injured her shoulder while reaching for

something in a cabinet. Id. at 150-152, 180. These statements do not suggest that

she anticipated filing a workers’ compensation claim at that time.

      {¶60} Since there is no evidence that Henry and McClain were aware that

Angelina was going to file a workers’ compensation claim, the temporal proximity

between her termination and the filing of her workers’ compensation claim cannot

establish causation. See Ferguson v. ProMedica Central Physicians. LLC, 2018-

Ohio-4358, 114 N.E.3d 429, ¶ 27 (6th Dist.) (granting summary judgment where

the plaintiff alleged retaliation but could not establish the employer was aware of

the protected activity). In the absence of some evidence that demonstrates her

employer was aware that she was going to file a workers’ compensation claim,

Angelina cannot establish how filing a workers’ compensation claim after her

termination proves that filing a workers’ compensation claim caused her

termination. See Putney, supra, at ¶ 57.



                                       -30-
Case No. 1-19-54


       {¶61} Angelina also mentions the date of her injury in this argument.

However, the temporal proximity between Angelina’s injury and her termination

also does not, by itself, establish causation. While there is no evidence that Henry

or McClain knew that Angelina was going to file a workers’ compensation claim,

Henry and McClain were aware of Angelina’s injury. However, under Sutton, “no

presumption of retaliation arises from the fact that an employee is discharged soon

after an injury.” Sutton, supra, at ¶ 10. In Sutton, the plaintiff was terminated within

one hour of his employer having been informed that he had suffered a workplace

injury. Sutton, supra, at ¶ 2.

       {¶62} Unlike the facts in Sutton, Lima Auto Mall did not terminate Angelina

before she had an opportunity to file a workers’ compensation claim. In the case

before this Court, Angelina reported that she was injured at work over one month

before she was terminated. Angelina Deposition, 130. See O’Malley-Donegan v.

MetroHealth System, 2017-Ohio-1362, 89 N.E.3d 113, ¶ 24 (8th Dist). The fact that

Angelina could have filed a workers’ compensation claim at the time that she was

terminated does not indicate that she was terminated for a reason related to a

workers’ compensation claim. See Glenn, supra, at ¶ 31 (finding an argument for

retaliatory termination to be speculative and without merit because it relied on the

fact that an employee might file a workers’ compensation claim). Angelina has the

burden of establishing that Lima Auto Mall engaged in “purposeful retaliation,”



                                         -31-
Case No. 1-19-54


having “a specific intent to discharge [her] for engaging in the protected act of filing

a workers’ compensation claim.” (Emphasis sic.) Id.

       {¶63} Further, in the one-month period of time in between Angelina’s injury

and her termination, her employer paid for her medical bills; Angelina received

short-term disability benefits from Lima Auto Mall’s insurer; and Henry attempted

to schedule her for light duty. McClain Deposition, 61, 71. Considering this

context, the temporal proximity between Angelina’s injury and her termination does

not suggest that her employer was motivated to terminate her by considerations

related to the relevant public policy regarding workers’ compensation claims.

       {¶64} While Angelina was terminated in between her date of injury and the

point at which she filed her workers’ compensation claim, she has not pointed to

facts in the record that would connect her employer’s decision to terminate her and

her decision to file a workers’ compensation claim. See Sutton, supra, at ¶ 10. There

is no evidence in the record that indicates Henry or McClain was aware that

Angelina was going to file a workers’ compensation claim and terminated Angelina

for this reason. Thus, Angelina has not identified evidence that would create a

genuine issue of material fact as to the causation element of her wrongful

termination in violation of public policy claim.

       {¶65} Even if Angelina had provided evidence for the causation element, her

claim would still fail because she has not alleged facts that create a genuine issue of

material fact as to whether Lima Auto Mall lacked an overriding, legitimate business

                                         -32-
Case No. 1-19-54


justification for her termination. In the affidavits attached to its motion for summary

judgment, Lima Auto Mall provided two overriding, legitimate business

justifications for Angelina’s termination: (1) the company was reducing their

workforce to cut costs and (2) Angelina was argumentative or insubordinate at work.

Doc. 29, Ex. A. See Boggs v. The Scotts Company, 10th Dist. Franklin No. 04AP-

425, 2005-Ohio-1264, ¶ 19 (determining that a reduction in force was a legitimate

business purpose that justified termination); Thompson v. Gynecologic Oncology &

Pelvic Surgery Assoc., 10th Dist. Franklin No. 06AP-340, 2006-Ohio-6377, ¶ 26,

31 (determining that personality conflicts were an overriding, legitimate business

justification for termination).

       {¶66} As to the reduction in force, McClain said that Lima Auto Mall’s

“sales have been going down * * *” and that his business manager informed him

that “we have way too many people in the detail shop.” McClain Deposition, 13.

He stated that he was “trying to cut expense[s]” and that employees were the

“biggest expense.” Id. at 13-14. Further, McClain testified that no one was hired

to replace Angelina after she was terminated. Doc. 29, Ex. A. McClain also stated

that another employee of the detail department left Lima Auto Mall four to six weeks

after Angelina was terminated and that this employee was also not replaced. Id. at

83. In his deposition, Henry testified that Lima Auto Mall “wasn’t doing that well

in business” and that they “had too many people” working there. Henry Deposition,



                                         -33-
Case No. 1-19-54


49, 56. He further said that they “were losing money, in the shop. We had to let

somebody go.” Id. at 69.

       {¶67} As to the argumentativeness or insubordination, Henry testified that

Angelina “had a mouth.” Henry Deposition, 9. He said that Angelina “sometimes”

intimidated him; that she would tell him how to do his job; and that “[i]t upset him.”

Id. at 10, 19. Henry stated that Angelina “would tell [one of her African American

coworkers], you know, black people shouldn’t be doing this, or you think black

people are better than white people, and that kind of stuff. And I had to step in * *

*.” Id. at 18. He also stated that his verbal performance evaluation of Angelina was

“keep up the work, but keep your trap shut.” Id. at 31.

       {¶68} In his deposition, McClain explained that he had “a right to lay people

off because we have lack of work. I know that she’s been a problem, and I did what

I had to do * * *.” McClain Deposition, 8-89. He further stated that Angelina was

“overbearing”; that she “had a way about intimidating people”; that she “coerced

other employees, with her mouth”; and that Henry could not “handle her.” Id. at 10,

90-91. He also said that Angelina “refus[ed] [Henry’s] orders, when he told * * *

her to do something was—number one, that’s bad, in front of the other people. She

did not respect her father.” Id. at 89. He also stated that the other employees would

complain about Angelina to him and that she was “mouthy.” Id. at 10-11, 90.

       {¶69} With this testimony, Lima Auto Mall produced evidence of overriding,

legitimate business justifications for Angelina’s termination. See Sells, supra, at ¶

                                        -34-
Case No. 1-19-54


34. In response, Angelina asserts that Lima Auto Mall’s justifications shifted over

time from a reduction in force to insubordination or argumentativeness, indicating

that these reasons were pretextual. See Id. at ¶ 27 (holding that “[a] court will not,

however, infer pretext from an employer’s assertion of different, although

consistent, reasons for taking an adverse action.”).

       {¶70} However, from Angelina’s discharge paperwork to the appellees’

motion for summary judgment, Lima Auto Mall has consistently cited a business

slowdown as a basis for her termination. Ex. 3. Doc. 29, Ex. A, B. Further,

McClain, Henry, and Angelina provided consistent testimony as to Angelina’s

argumentative behavior at work. Doc. 29, Ex. A, B. Henry Deposition, 13, 19, 38.

McClain Deposition, 10, 43. Angelina Deposition, 73-74. Even if Lima Auto

Mall’s justifications for Angelina’s terminations had shifted from reduction in force

to argumentativeness or insubordination, these reasons are not inconsistent. The

reduction in force was the reason a position in the detail department was terminated.

Doc. 29, Ex. A. Angelina’s argumentativeness or insubordination was the reason

her position in the detail department was terminated. Doc. 29, Ex. A.

       {¶71} We also note that, in her response, Angelina does not identify evidence

that suggests Lima Auto Mall was not experiencing a business slowdown. Further,

while Angelina testified that she was not insubordinate, she admitted to engaging in

the behaviors that McClain and Henry identified as insubordination in their

testimony. Angelina Deposition, 73-74. In her testimony, Angelina admitted that

                                        -35-
Case No. 1-19-54


she regularly argued with her supervisor, Henry, at work. Id. In other words,

Angelina confirms the conduct that was a basis for her termination but disputes

Lima Auto Mall’s use of the label “insubordination” for this conduct. See Wissler

v. Ohio Dept. of Job and Family Services, 10th Dist. Franklin No. 09AP-569, 2010-

Ohio-3432, ¶ 24. She also admitted to arguing with her coworkers on a regular basis

at work. Angelina Deposition, 73-74. Thus, Angelina has not carried the burden of

establishing that there is a factual dispute over whether Lima Auto Mall lacked

overriding, legitimate business justifications for her termination.

       {¶72} In the end, Angelina has not established the causation element by

pointing to evidence that would establish a connection between Lima Auto Mall’s

decision to terminate her and her subsequent decision to file a workers’

compensation claim. Angelina also has not identified facts in the record that

indicate that her employer lacked overriding, legitimate business justifications for

her termination. After reviewing the evidence in a light most favorable to the

nonmoving party, we conclude that Angelina has not carried the burden of

establishing that genuine issues of material fact exist for trial on this claim. Thus,

Angelina’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶73} Angelina asserts that the appellees were not entitled to summary

judgment on her gender discrimination claim.



                                         -36-
Case No. 1-19-54


                                    Legal Standard

       {¶74} R.C. 4112.02 prohibits certain discriminatory employment practices

and reads, in its relevant part, as follows:

       It shall be an unlawful discriminatory practice:

       (A) For any employer, because of the * * * sex * * * 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.

R.C. 4112.02(A). The Supreme Court of Ohio has “determined that federal case

law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq.,

Title 42, U.S.Code, is generally applicable to cases involving alleged violations of

R.C. Chapter 4112.” Plumbers & Steamfitters Joint Apprenticeship Committee v.

Ohio Civil Rights Commission, 66 Ohio St.2d 192, 196, 421 N.E.2d 128, 131 (1981).

       {¶75} In Ohio, a plaintiff may establish a discrimination claim under the

McDonnell Douglas Corp. v. Green framework. Jones v. MTD Consumer Group,

Inc., 2015-Ohio-1878, 32 N.E.3d 1030, ¶ 27 (9th Dist.), citing McDonnel Douglas

Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under

this framework,

       [t]o establish a prima facie case of discrimination, a plaintiff must
       show: (1) membership in a protected class; (2) qualification for
       the position; (3) an adverse employment action; and (4)
       replacement by a non-protected person.

Putney, supra, at ¶ 25, quoting McDonnell Douglas Corp. at 802.


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       However, “[a] plaintiff can also make out a prima facie case by
       showing, in addition to the first three elements, that ‘a
       comparable non-protected person was treated better.’” Mitchell
       v. Toledo Hosp. (C.A.6, 1992), 964 F.2d 577, 582 (internal citations
       omitted). Under this element, a plaintiff ‘must produce evidence
       which at a minimum establishes (1) that he [or she] was a member
       of a protected class and (2) that for the same or similar conduct
       he [or she] was treated differently than similarly-situated non-
       minority employees.’ Id. at 582-83.

Putney at ¶ 25.

       {¶76} “To demonstrate that a co-worker is similarly-situated, ‘[T]he plaintiff

and the employee with whom the plaintiff seeks to compare himself or herself must

be similar in “all of the relevant aspects.”’” (Emphasis sic.) Brehm v. MacIntosh

Company, 10th Dist. Franklin No. 19AP-19, 2019-Ohio-5322, ¶ 29, quoting

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998),

quoting Pierce v. Commonwealth Life Ins. Co., 825 F.Supp. 783, 802 (E.D.

Ky.1993). Further, in Mitchell v. Toledo Hosp.,

       [t]he Sixth Circuit has held that “to be deemed ‘similarly-
       situated’ in the disciplinary context, ‘the 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.’”

Putney at ¶ 31, quoting Ercegovich at 352, quoting Mitchell at 583. However, the

Sixth Circuit, in Ercegovich, also held that

       [c]ourts should not assume * * * that the specific factors discussed
       in Mitchell are relevant factors in cases arising under different
       circumstances, but [courts] should make an independent

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Case No. 1-19-54


       determination as to the relevancy of a particular aspect of the
       plaintiff’s employment status and that of the non-protected
       employee.

Ercegovich at 352. See Putney at ¶ 32. Further, “[a] person is not similarly situated

unless the conduct engaged by the proffered individual is of ‘comparable

seriousness’ to the conduct that predic[a]ted the employee/plaintiff's termination.”

Waddell v. Grant/Riverside Medical Care Foundation, 2017-Ohio-1349, 88 N.E.3d

664, ¶ 33 (10th Dist.).

       {¶77} “An employee’s burden in demonstrating discrimination is heavier

when a reduction in force is required by economic necessity.” Hamilton v. Sysco

Food Servs. of Cleveland, Inc., 170 Ohio App.3d 203, 2006-Ohio-6419, 866 N.E.2d

559, ¶ 15 (8th Dist.), citing Carpenter v. Wellman Prods. Group, 9th Dist. Medina

App. No. 03CA0032-M, 2003-Ohio-7169, ¶ 17.

       A workforce reduction situation occurs when business
       considerations cause an employer to eliminate one or more
       positions within the company. An employee is not eliminated as
       part of a work force reduction when he or she is replaced after his
       or her discharge.

Carpenter at ¶ 16. “For purposes of summary judgment, a plaintiff must submit

evidence from which a reasonable jury could conclude that the plaintiff established

a prima facie case of discrimination.” Housden v. Wilke Global, Inc., 2018-Ohio-

3959, 111 N.E.3d 1264, ¶ 27 (10th Dist.).

       {¶78} If a plaintiff establishes a prima facie case of gender discrimination,

then there is a presumption of discrimination. Williams v. Akron, 107 Ohio St.3d

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203, 2005-Ohio-6268, 837 N.E.2d 1169, ¶ 11. “Once a plaintiff establishes [a]

prima facie case, the burden then shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the adverse employment action.” Putney at ¶ 25,

citing Texas Dept. of Comm. Affairs v. Burdine (1981), 450 U.S. 248, 252-53, 101

S.Ct. 1089, 1093-94, 67 L.Ed.2d 207.

       The employer meets its burden of production by submitting
       admissible evidence that ‘taken as true, would permit the
       conclusion that there was a nondiscriminatory reason for the
       adverse action,’ and in doing so rebuts the presumption of
       discrimination that the prima facie case establishes. (Emphasis
       sic.) Williams at ¶ 12, quoting St. Mary’s Honor Ctr. v. Hicks, 509
       U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

Housden at ¶ 20. “The employer’s burden is one of production, not of persuasion.”

Waddell, supra, at ¶ 28. “The ultimate burden of persuasion always remains with

the plaintiff.” Ames, supra, at ¶ 27.

       {¶79} If the employer carries the burden of producing evidence that

establishes nondiscriminatory reasons for the adverse employment action, then

       ‘the plaintiff must then have an opportunity to prove by a
       preponderance of the evidence that the legitimate reasons offered
       by the defendant were not the true reasons, but were a pretext for
       discrimination.’

Putney at ¶ 25, quoting Burdine, supra, at 252-253. “To establish such pretext, a

plaintiff must show either (1) that the proffered reasons had no basis in fact, (2) that

the proffered reasons did not actually motivate [her] discharge, or (3) that they were

insufficient to motivate discharge.” Jones v. MTD Consumer Group, Inc., 2015-


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Ohio-1878, 32 N.E.3d 1030, ¶ 27 (9th Dist.), quoting (Citations and emphasis

omitted.) Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir.2008). See also

Waddell, supra, at ¶ 29.

                                  Legal Analysis

       {¶80} In this case, there is no dispute as to the first three elements of the

prima facie case of gender discrimination. Appellees’ Brief, 13. First, Angelina, as

a female, is a member of a protected class. Angelina Deposition, 198. Second,

McClain and Henry both stated that Angelina was qualified for her job. McClain

Deposition, 24, 26. Henry Deposition, 21-22. Angelina Deposition, 41. Third,

there was adverse employment action as Angelina’s job was terminated. Henry

Deposition, 66. McClain Deposition, 26.

       {¶81} However, there is an issue, on appeal, as to whether Angelina has

substantiated the fourth element of a gender discrimination claim. To satisfy this

element, Angelina must either demonstrate (1) that Lima Auto Mall replaced her

with a male or (2) that Lima Auto Mall did not treat her as favorably as another

similarly situated male after engaging in the same conduct as Angelina. Putney,

supra, at ¶ 25. McClain stated that Angelina’s position was not filled after her

departure because her termination was part of a reduction in force. Doc. 29, Ex. A.

Further, McClain and Henry stated business was slowing down at Lima Auto Mall

and that Angelina was not replaced because of a reduction in force. Doc. 29, Ex. A,



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B. In response, Angelina does not allege that Lima Auto Mall replaced her with a

male or that Lima Auto Mall was not engaged in a reduction in force.

       {¶82} Rather, to carry the burden of establishing the fourth element,

Angelina first argues that her termination allowed for the retention of a male

detailer, Dennis Hapner (“Hapner”). She then argues that another male detailer at

Lima Auto Mall, Paul Duckett (“Duckett”), was treated more favorably than she

was by her employer. Angelina, Hapner, and Duckett were each detailers who had

worked under Henry’s supervision at Lima Auto Mall. Angelina Deposition, 65,

200. Doc. 29, Ex. A. We will examine the record to determine whether Angelina

has established that these male counterparts were treated more favorably than she

was after engaging in the same type of conduct that led to her termination.

       {¶83} McClain stated that Angelina was terminated and Hapner was retained

because Angelina argued with her supervisor, Henry, at work and “would ‘stir the

pot’ with other workers by starting arguments about politics and sports * * *.” Doc.

29, Ex. A. Hapner, on the other hand, did not engage in such behavior. McClain

Deposition, 92. Henry also stated that he and Angelina “would get face-to-face

arguing” at work. Doc. 29, Ex. B. Henry Deposition, 19, 38. Angelina admitted

that she argued with her coworkers but also indicated that her coworkers all argued

with each other in the detail shop. Angelina Deposition, 73-74. However, Angelina

also admitted that she frequently argued with her supervisor at work but nowhere

alleged that Hapner ever argued with Henry at work. Id.

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       {¶84} Further, an examination of the record does not reveal any evidence of

a pattern of conflict between Hapner and his supervisor, Henry. See Ames v. Ohio

Dept. of Rehab. & Corr., 2014-Ohio-4774, 23 N.E.3d 162, ¶ 26 (10th Dist.)

(considering the plaintiff’s pattern of conflict with coworkers in a comparable

seriousness analysis). Since Angelina has not pointed to any evidence that Hapner

ever argued with Henry at work, she has not demonstrated that Hapner was treated

more favorably than she was after engaging in the same pattern of conduct that led

to her termination. See Stipkala v. Bank One, N.A., 9th Dist. Summit No. 21986,

2005-Ohio-16, ¶ 15 (holding the plaintiff had to demonstrate that the proffered,

similarly situated coworker “engaged in the same conduct but was either not

disciplined or not disciplined as severely as” the plaintiff.).

       {¶85} Angelina also argues that her employer treated her less favorably than

Duckett. At the time that Angelina was terminated, Duckett was no longer working

at Lima Auto Mall. Henry Deposition, 30. Thus, Angelina’s termination did not

facilitate Duckett’s retention. However, Angelina has also not identified any

evidence that indicates Duckett ever argued with Henry at work. Further, the record

does not contain evidence that indicates there was a pattern of conflict between

Duckett and Henry. It is also unclear from the record if Lima Auto Mall was in the

process of a reduction in force at the time Duckett was employed.

       {¶86} Angelina points to the fact that Duckett had fallen asleep while he was

at work and had not been terminated for this conduct. Angelina Deposition, 67.

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The record indicates that Henry had written up Duckett for falling asleep at work.

Henry Deposition, 30. Duckett then produced a doctor’s note that indicated he had

a sleeping disorder. Id. Subsequently, Duckett left to care for his father and never

returned to work at Lima Auto Mall. Id. McClain stated that Duckett “quit before

I could fire him.” McClain Deposition, 46.

       {¶87} Further, the record also indicates that Angelina’s immediate

predecessor was a male detailer who “gave Henry a very, very hard time” and was

terminated for that reason. McClain Deposition, 14. Henry testified that employees

have acted defiantly towards him in the past. Henry Deposition, 12-13. Henry said

of these defiant employees: “they can either go out or I’ll push them out.” Id.

Angelina has not pointed to any evidence that would put these facts into dispute.

“In practical terms, two employees are not similarly-situated in all relevant respects

if there is a meaningful distinction between them which explains their employer’s

differential treatment of them.” Poppy v. Willoughby Hills City Council, 11th Dist.

Lake No. 2004-L-015, 2005-Ohio-2071, ¶ 41. Angelina has not demonstrated that

any similarly situated, male detailer at Lima Auto Mall was treated more favorably

than she was after engaging in the same pattern of argumentative conduct with the

supervisor of the detail department.

       {¶88} Angelina also points to a comment made by McClain as evidence of a

discriminatory intent.    She testified that McClain, upon receiving medical

documentation about the limitations that she had immediately following her injury,

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made the following comment: “I wouldn’t hire a one-armed man, let alone a one-

armed woman. What am I supposed to do with someone with one arm?” Angelina

Deposition, 142. There is a dispute as to the content of this comment.

         {¶89} McClain only admits to saying that he “wouldn’t hire a one-armed

person.” Doc. 29, Ex. A. He did not admit to saying the portion about a “one-armed

woman.” Doc. 29, Ex. A. McClain Deposition, 67. He further explained that this

statement was intended “as a joke.” Doc. 29, Ex. A. McClain Deposition, 67. A

jury could very well believe McClain when he says that did not make any reference

to Angelina’s gender or that he intended this comment only as a joke. However,

when examining a motion for summary judgment, we must examine this comment

in a light most favorable to the non-moving party: Angelina. See Conway v. Paisley

House, 7th Dist. Mahoning No. 02CA135, 2003-Ohio-4609, ¶ 15, 22.

         {¶90} At the outset, we note that Angelina did not present this comment as

direct evidence of discriminatory intent to the trial court.2 See Smith v. Kelly, 2d

Dist. Clark No. 2011 CA 77, 2012-Ohio-2547, ¶ 32. On the one hand, this comment,



2
  On appeal, Angelina refers to McClain’s statement as “direct evidence.” The words “direct evidence” can
refer to a type of evidence or, in the context of a gender discrimination claim, a method of proof. Mauzy v.
Kelly Services, Inc., 75 Ohio St.3d 578, 586, 664 N.E.2d 1272, 1279 (1996). This method of proof is an
alternative to the McDonnell Douglas analysis. Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d
544, 548 (6th Cir. 2004). In this case, Angelina does not set forth the legal standard for the direct evidence
framework; does not cite to cases that rely on this standard; did not refer to this comment as direct evidence
to the trial court; and did not refer to the direct evidence legal standard to the trial court. Rather, to the trial
court and this Court, Angelina has set forth the McDonnell Douglas legal standard and has structured her
entire argument for gender discrimination around the McDonnell Douglas burden-shifting framework. For
this reason, we will consider McClain’s comment within the context of the McDonnell Douglas burden
shifting framework.

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as related by Angelina, was made by the person who decided to terminate Angelina;

was related to her status as an employee; directly referenced Angelina’s gender; and

was made within one month of her termination. On the other hand, from the

evidence produced by Angelina, this comment also does not appear to be a part of

a broader pattern of such commentary from McClain. Angelina affirmed that

McClain was not “abusive” towards her. Angelina Deposition, 101. She also does

not identify other similar comments from McClain, affirming at the end of her

deposition that she had no “other statements that [she] would consider outrageous

or outlandish” to offer from McClain. Angelina Deposition, 210.

      {¶91} We also note that

      [a]n employer can demonstrate a nondiscriminatory intent with
      regard to demotion or termination of an employee through the
      ‘same actor’ inference. Where the same actors make positive and
      adverse employment decisions about an individual, especially
      within a short time period, a court may strongly infer a
      nondiscriminatory motivation in the later action.

Crawford v. Kirtland Local School Board of Education, 124 N.E.3d 269, 2018-

Ohio-4569, ¶ 69, quoting Pirsil v. Internatl. Steel Group Cleveland, 8th Dist.

Cuyahoga No. , 2005-Ohio-3013, ¶ 14.

      An individual who is willing to hire and promote a person of a
      certain class is unlikely to fire them simply because they are a
      member of that class. This general principle applies regardless of
      whether the class is age, race, sex, or some other protected
      classification.

      In discrimination cases where the employee’s class does not
      change, it remains possible that an employer who has nothing

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       against women per se when it hires a certain female will have
       nothing against women per se when it fires that female, regardless
       of the number of years that pass.

Buhrmaster v. Overnite Transp. Co., 61 F.3d 461 (6th Cir. 1995).

       {¶92} In this case, Lima Auto Mall has identified facts in the record that

indicate the same actor inference is applicable in this situation. McClain is the

individual who hired and terminated Angelina. McClain Deposition, 21, 23. He

had known her before she was hired and gave her a job at Lima Auto Mall in the

absence of an interview. McClain Deposition, 23. Angelina Deposition, 46. He

also gave Angelina a raise upon her request even though this was not the standard

method to award pay increases. Doc. 29, Ex. A. See Pulver v. Rookwood Highland

Tower Investments, 1st Dist. Hamilton No. Nos. C-950361, C-950429., 1997 WL

133422, *8 (Mar. 26, 1997) (considering a pay increase under the same actor

inference analysis). Thus, McClain has alleged facts sufficient to raise the same

actor inference. See Pirsil at ¶ 16; Crawford at ¶ 70.

       {¶93} Assuming that Angelina had set forth facts that establish a prima facie

case for gender discrimination, Lima Auto Mall provided legitimate,

nondiscriminatory reasons for her termination in their motion for summary

judgment. Further, she is not able to demonstrate that these nondiscriminatory

reasons for her termination are pretextual. We will proceed through this analysis.

Angelina’s employer gave two nondiscriminatory reasons for her termination in

their motion for summary judgment. First, they assert that a detailing position was

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terminated because they were reducing their workforce as a result of a general

slowdown in their business. Doc. 29. Second, they assert that Angelina’s detailing

position was terminated because she was argumentative or insubordinate. Doc. 29.

We turn to examining these reasons in further detail.

       {¶94} Regarding the termination of a detailing position, McClain stated that

Lima Auto Mall used to have eight franchises and employed up to 130 people. Doc.

29, Ex. A. By the time that this action was instituted, Lima Auto Mall had two

franchises and roughly sixty employees. Doc. 29, Ex. A. McClain Deposition, 13,

18. McClain further stated that another detailer left four to six weeks after Angelina

was terminated and that this other position had not been filled. McClain Deposition,

83. Henry testified that there were too many employees and that business was “not

doing that well.” Henry Deposition, 49.

       {¶95} As to why Angelina was terminated, McClain made the following

statements in an affidavit filed with the appellees’ motion for summary judgment:

       15. During the time that Angie was in the detail department, she
       did good work, but she was ‘mouthy,’ she would ‘stir the pot’ with
       other workers by starting arguments about politics and sports,
       and she would act insubordinate with her supervisor who was also
       her father. She annoyed other employees because she constantly
       talked about her family and made others feel like she was better
       than them.

       16. While Angie was off work after her injury, the detail
       department was noticeably more peaceful. The constant arguing
       among workers that persisted while Angie was there had stopped
       in her absence. Additionally, the detail department continued to
       function smoothly. It became clear to me that I had too many

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       detailers working back there for the amount of detailing work we
       had, and it was time to let someone go to cut overhead costs.

       17. Since the business slowdown meant someone had to be let go,
       Angie became the obvious choice when it was seen how peaceful
       the detail department was in her absence combined with her
       history of arguing with co-workers and acting insubordinate with
       her supervisor, Henry Nance.

Doc. 29, Ex. A. In his deposition, McClain also stated that Angelina “coerced other

employees, with her mouth. They have even come to me and said, you know, I don’t

work for her.” McClain Deposition, 90.

       {¶96} McClain further stated that the other employees were “tired” of her

telling them how to do their jobs and that

       [i]t [was] not her job to intimidate or help. Her job was to detail
       cars and buff.

       ***

       She went above that, by trying to manage her father’s job. And
       her father had to get into her about doing it, because he got tired
       of it.

McClain Deposition, 90-91. He also said,

       A number of people that worked back there with her have made
       comments to me about the way she treated them; the way she
       would boss them or tell them how to do their job. She called it
       helping. But a lot of them took offense to the way she—she was
       kind of overbearing—she’s very smart, in her opinion; and a lot
       of them were not very smart, according to her, and they didn’t
       know what they were doing.

He also said, “I guess they [Henry and Angelina] got into pretty good arguments,

back there, in front of people.” Id. at 10. McClain testified that Henry informed

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him that “he don’t know what to do with her” and that he could not “handle her.”

Id. at 91.

       {¶97} In an affidavit, Henry stated that Angelina “intimidated” and

“threaten[ed]” the other employees during their arguments. Doc. 29, Ex. B. He

further stated:

       5. Angie is a hard worker and good detailer but she gets
       “mouthy” and acted disrespectful to me as her supervisor. She
       would try to tell me how to do my job. She would bring up politics
       with the other workers and argue with them. Angie is very
       opinionated and vocal about her opinions. She liked to argue and
       was constantly starting arguments. She also often argued with the
       other workers about sports. She sometimes would try to goad
       others into arguing with her about her sexuality, but the other
       workers always refused to “take the bait.”

       6. Sometimes Angie would argue about the job. She would tell
       me that I did not know how to do my job and we would get face-
       to-face arguing.

Doc. 29, Ex. B. In his deposition, he further stated the following:

       we’re already losing money, in the shop. We had to let somebody
       go. Sooner or later, it was either going to be one of them. And,
       you know, Dalton, he worked, he was there every day; Dennis
       [Hapner], good worker, fantastic worker, there every day. Plus,
       I didn’t have all this yelling and screaming all the time.

Henry Deposition, 69-70. Henry reported that the detail department has been “much

more peaceful with less arguing” in Angelina’s absence. Doc. 29, Ex. B. After

examining the evidence in the record, we conclude that Lima Auto Mall has carried

the burden of producing evidence that Angelina was terminated for legitimate,

nondiscriminatory reasons.

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       {¶98} In response, Angelina has the burden of establishing that these

nondiscriminatory reasons are pretextual. To do this, Angelina must demonstrate:

“(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did

not actually motivate [her] discharge, or (3) that they were insufficient to motivate

discharge.” Jones, supra, at ¶ 27, quoting Russell, supra, at 604. Angelina purports

to use the first and third options to prove pretext. She advances arguments against

each of Lima Auto Mall’s two nondiscriminatory reasons for her termination.

       {¶99} On appeal, Angelina argues against the reduction in force justification

on the grounds that no one else in the detail department was terminated. Notably,

Angelina nowhere disputes that Lima Auto Mall was experiencing a business

slowdown. The fact that Lima Auto Mall did not terminate anyone else in the detail

department does not indicate that the company was not engaged in a reduction in

force. We note that there were only six positions under Henry’s supervision at the

time that Angelina was terminated. McClain Deposition, 14. The fact that her

position was not filled after her termination establishes that this company was, in

fact, reducing the number of positions in its detail department.

       {¶100} Further, after Angelina was terminated, another employee left the

detail department and was also not replaced. McClain Deposition, 83. By this time,

there were only three and a half positions under Henry’s supervision. Id. at 14.

Thus, there is ultimately no factual dispute as to whether Lima Auto Mall was

experiencing a business slowdown or as to whether Lima Auto Mall was in the

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Case No. 1-19-54


process of reducing its workforce at the time that Angelina was terminated.

Angelina’s argument does not demonstrate that Lima Auto Mall’s claim—to be in

the midst of a reduction in force—was factually untrue or that a reduction in force

was not sufficient to motivate her discharge.

       {¶101} On appeal, Angelina also argues that the reduction in force

justification is pretextual because she was terminated even though she had more

seniority than Hapner. See Angelina Deposition, 200. We note that Lima Auto

Mall’s handbook puts its employees on notice of the following policy:

       In the event of a reduction in force, the Company will strive to
       take into account an employee’s length of service with the
       Company, but skill ability, attitude about his/her work and other
       factors will play an important role.

Ex. J. Under the company policy, Angelina, in the event of a reduction in force,

was not guaranteed priority over Hapner because of her seniority. Ex. J. Further,

Angelina further testified that she did not have a written contract of employment

that provided a definite period for her employment and stated that she was not

promised that she could work there for any specified period of time. Angelina

Deposition, 212-213.

       {¶102} Further, McClain stated that he did not cut Hapner’s position because

“[h]e was a better worker; no problems; no hassles.” McClain Deposition, 92. He

also stated that Hapner was “a good worker. He don’t complain.” Id. McClain

reported that Angelina routinely argued with her supervisor and her coworkers while


                                        -52-
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at work. Doc. 29, Ex. A. Henry also stated that he and Angelina “would get face-

to-face arguing” at work. Doc. 29, Ex. B. Henry Deposition, 19, 38. In her

deposition, Angelina admitted to engaging in this type of behavior but pointed to

the fact that her coworkers would also argue with her. Angelina Deposition, 73-74.

       {¶103} However, Angelina also admitted that she argued with her supervisor

at work but nowhere alleged that Hapner argued with their supervisor at work. Id.

Further, an examination of the record does not reveal any evidence of a pattern of

conflict between Hapner and his supervisor, Henry. Henry and McClain both

testified that Hapner was a good employee who did not cause problems. McClain

Deposition, 92. Henry Deposition, 69-70. There is no evidence in the record that

indicates Hapner or any of Angelina’s other male coworkers who were retained in

the detail department ever argued with Henry; had to be repeatedly spoken to in

Henry’s office for argumentative behavior; or had to be given warnings for such

behavior. Again, this argument does not establish that Lima Auto Mall was not, in

fact, engaged in a reduction in force or that a reduction in force was not a sufficient

reason for Angelina’s discharge.

       {¶104} Turning to the argument she raises against Lima Auto Mall’s

insubordination justification, she argues that this reason is pretextual because she

was never formally disciplined for her argumentative or insubordinate conduct.

However, McClain indicated that the reason Angelina was not, as a general matter,

formally reprimanded was because Henry was both her father and her supervisor.

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McClain Deposition, 86-87. Given this “unique situation,” McClain stated that he

did not formally reprimand Angelina and indicated that he allowed Henry, as her

supervisor, to address any issues with Angelina in his own manner. Id. At the end

of his deposition, McClain stated that Henry admitted that he, as her supervisor,

could not “handle” Angelina. Id. at 92.

       {¶105} Henry stated that he did not give her formal performance evaluations

and also did not, as a general matter, formally reprimand Angelina.            Henry

Deposition, 32, 40. Instead, Henry stated that he would speak to her himself; that

he would call her into his office for talks; and would, at times, threaten to send her

home. Id. at 19, 40. He also indicated that, when other employees would have an

issue with Angelina, they would speak to him. Id. at 14. He testified that he would

tell these complaining employees that he would “handle it” and that he would then

speak with Angelina. Id. Henry’s testimony indicated that he repeatedly told

Angelina not to behave in an argumentative manner but that this behavior continued

nonetheless. Id. at 13, 19, 20, 31, 38, 40.

       {¶106} Further, we also note that Henry did eventually fill out an employee

warning notice for Angelina. Ex. L. Henry Deposition, 40-44. This document

indicated that Henry instructed Angelina to return to work for light duty in

December of 2017 but that Angelina did not return to work. Ex. L. Henry stated

that this document was filed at Lima Auto Mall. Henry Deposition, 40. While

Angelina stated that she had not seen this document, she does not dispute having a

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heated argument with Henry on the phone regarding her return to work to perform

light duty.    Angelina Deposition, 98-9, 192.       Angelina stated that, in this

conversation, Henry was upset. Id. at 100. She said “[h]e was rambling about me

getting fired * * *.” Id. at 100.

         {¶107} While Angelina disputes having been insubordinate, she admits to

engaging in the argumentative conduct that Henry and McClain identified as

insubordination. Angelina Deposition, 73-74, 97, 98-99. She admits that she

frequently argued with her coworkers and her supervisor at work. Id. Henry and

McClain testified that the detail department was peaceful in her absence and that

this motivated their decision to terminate her position instead of another detailer’s

position. Doc. 29, Ex. A, B. They also indicate that previous employees of the

detail department had been terminated for engaging in similar conduct prior to

Angelina’s time at Lima Auto Mall. McClain Deposition, 14. Henry Deposition,

12-13.

         {¶108} The absence of a formal reprimand for argumentative or

insubordinate behavior does not establish that she was not argumentative or

insubordinate, especially when considering her own admissions about her

workplace behavior.        Further, this argument does not establish that the

argumentative behavior in which she admittedly engaged did not provide sufficient

grounds for termination. See Thompson, supra, at ¶ 31.



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       {¶109} As to the question of whether Angelina was argumentative or

insubordinate, there is no dispute as to whether Angelina had a consistent pattern of

argumentative behavior at work with her coworkers. It is also undisputed that

Angelina routinely argued with her supervisor at work. Further, there is no evidence

in the record that Angelina’s coworkers in the detail department had a pattern of

argumentative conflict with their supervisor, Henry. There is also undisputed

evidence that previous employees in the detail department had been terminated for

engaging in similar types of conduct toward Henry.

       {¶110} After reviewing the evidence in a light most favorable to the non-

moving party, we conclude that Angelina has not demonstrated that she was treated

less favorably than her male coworkers after engaging in the same type of conduct.

In the absence of such a showing, she could not establish a prima facie case for

gender discrimination. Further, Lima Auto Mall was able to produce evidence of

legitimate, nondiscriminatory reasons for her termination. In response, Angelina

was not able to demonstrate that these nondiscriminatory reasons for her termination

were pretextual by producing evidence that they either were factually untrue or were

insufficient grounds for her discharge. After examining the facts in the record, we

conclude that the trial court did not err in granting the appellees’ motion for

summary judgment. Thus, her second assignment of error is overruled.




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                             Third Assignment of Error

       {¶111} Angelina argues that the appellees were not entitled to summary

judgment on her sexual orientation discrimination claim.

                                   Legal Standard

       {¶112} “The Supreme Court of Ohio has held that ‘federal case law

interpreting Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title

42, U.S.Code, is generally applicable to cases involving alleged violations of R.C.

Chapter 4112.’” Russel v. United Parcel Service, 110 Ohio App.3d 95, 100, 673

N.E.2d 659 (10th Dist.), quoting Plumbers & Steamfitters Commt. v. Ohio Civil

Rights Comm., 66 Ohio St.2d 192, 196, 421 N.E.2d 128, 131 (1981).

                                   Legal Analysis

       {¶113} Angelina states, in her brief, that discrimination on the basis of sexual

orientation is not actionable under Ohio Revised Code Chapter 4112. See R.C.

4112.02(A). During the pendency of this case, the Supreme Court of the United

States decided Bostock v. Clayton County, Georgia, --- S.Ct. ---, 590 U.S. ----, ---

L.Ed.2d --- (2020) (Slip Opinion). In that decision, the Supreme Court held that “it

is impossible to discriminate against a person for being homosexual or transgender

without discriminating against that individual based on sex.” Id. at 9. Thus, the

Court concluded that “[a]n employer who fires an individual merely for being gay

or transgender defies the law.” Id. at 33. Since the Ohio Supreme Court has held

that federal case law is “generally applicable to cases involving alleged violations

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of R.C. Chapter 4112,” the type of claim that Angelina raises herein could

potentially have a basis in law under Bostock. Russel, supra, at 100, quoting

Plumbers & Steamfitters Commt. at 196. See Bostock at 33.

        {¶114} However, even if there is now a legal basis for this type of claim

under Ohio law, Angelina has not alleged facts that suggest that she suffered adverse

employment action because of her sexual orientation.3 In her deposition, Angelina

agreed that Henry was aware of her sexual orientation at the time that she was hired;

was accepting of her lifestyle; and had never expressed displeasure that she was

married to a woman. Angelina Deposition, 39, 75, 77.

        {¶115} McClain and Henry testified that they were each aware that Angelina

was gay at the time that she was hired. McClain Deposition, 36, 38. Henry

Deposition, 33. She also testified that McClain did not directly speak to her about

her marriage or make any discriminatory slurs regarding her sexual orientation. Id.

at 127-128. However, Angelina did state that McClain had mentioned to her father

that he (McClain) was uncomfortable with Angelina referring to Vanessa as her

wife. Angelina Deposition, 80. She agreed that this was “one isolated incident in

2017.” Id. at 80. She admitted that there were no other “expression[s] of dislike or




3
  We note that the trial court did not grant summary judgment as to this claim on the grounds that Ohio law
did not recognize discrimination on the basis of sexual orientation as actionable. Doc. 43. Rather, in its
judgment entry, the trial court stated that “[t]he record lacks evidence of gender/sexual preference
discriminatory intent by defendant.” Doc. 43.

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displeasure” with her lifestyle or her marriage. Id. Angelina also affirmed that no

“adverse disciplinary actions were taken against” her after this incident. Id.

       {¶116} In her deposition, her response to the motion for summary judgment,

and her appellate brief, Angelina has not drawn a connection between her sexual

orientation and any adverse employment action taken by Lima Auto Mall. Angelina

Deposition, 198. Doc. 38. Appellant’s Brief, 23-24. She only argues that there is

a right to raise a claim for discrimination on the basis of sexual orientation under

Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq. However, she

does not identify facts in the record that would substantiate such a claim. Thus, her

third assignment of error is overruled.

                             Fourth Assignment of Error

       {¶117} Angelina argues that the appellees were not entitled to summary

judgment on her disability discrimination claims because there is a genuine issue of

material fact as to whether she was terminated for being perceived as disabled.

                                    Legal Standard

       {¶118} R.C. 4112.02 prohibits certain discriminatory employment practices

and reads, in its relevant part, as follows:

       It shall be an unlawful discriminatory practice:

       (A) For any employer, because of the * * * disability * * * 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.

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R.C. 4112.02(A). “Since Ohio’s disability discrimination statute is similar to the

federal Americans with Disabilities Act, Ohio courts have considered federal cases

for guidance in interpreting the Ohio statute.” Mattessich v. Weathersfield Twp.,

2016-Ohio-458, 59 N.E.3d 629, ¶ 37 (11th Dist.).

      {¶119} The Ohio Revised Code defines the word “disability” as follows:

      a physical or mental impairment that substantially limits one or
      more major life activities, including the functions of caring for
      one’s self, performing manual tasks, walking, seeing, hearing,
      speaking, breathing, learning, and working; a record of a physical
      or mental impairment; or being regarded as having a physical or
      mental impairment.

(Emphasis added.) R.C. 4112.01(13). A “physical or mental impairment” is defined

in the Ohio Revised Code as including the following:

      (i) Any physiological disorder or condition, cosmetic
      disfigurement, or anatomical loss affecting one or more of the
      following body systems: neurological; musculoskeletal; special
      sense organs; respiratory, including speech organs;
      cardiovascular; reproductive; digestive; genito-urinary; hemic
      and lymphatic; skin; and endocrine;

      (ii) Diseases and conditions, including, but not limited to,
      orthopedic, visual, speech, and hearing impairments, cerebral
      palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis,
      cancer, heart disease, diabetes, human immunodeficiency virus
      infection, mental retardation, emotional illness, drug addiction,
      and alcoholism.

R.C. 4112.01(A)(16)(a).




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       {¶120} If a plaintiff alleges that he or she was discriminated against by an

employer because the plaintiff was disabled, then the plaintiff, in order to establish

a prima facie case of disability discrimination, must demonstrate:

       (1) she [or he] was disabled; (2) she [or he] suffered an adverse
       employment action based, at least in part, on that disability; and
       (3) she [or he] could safely and substantially perform the essential
       functions of the job.

Dunn v. GOJO Industries, 2017-Ohio-7230, 96 N.E.3d 870, ¶ 12 (9th Dist), citing

Columbus Civ. Serv. Comm. v. McGlone, 82 Ohio St.3d 569, 571, 697 N.E.2d 204,

206 (1998).

       {¶121} However, “[a] person can gain the protection of the disability

discrimination laws even if he or she is not disabled if the employer regards the

person as being disabled.” Carnahan v. Morton Bldgs. Inc., 2015-Ohio-3528, 41

N.E.3d 239, ¶ 7 (3d Dist.). If a plaintiff alleges that he or she was discriminated

against by an employer because that employer perceived the plaintiff as disabled,

then the plaintiff, in order to establish a prima facie case of perceived disability

discrimination, must demonstrate:

       (1) that she [or he] was perceived as disabled, (2) that the employer
       took an adverse employment action against her because of the
       perceived disability, and (3) that the employee, although
       perceived as disabled, can safely and substantially perform the
       essential functions of the job in question.

(Emphasis added.) Jaber v. FirstMerit Corp., 2017-Ohio-277, 81 N.E.3d 879, ¶ 13

(9th Dist.), citing Ames, supra, at ¶ 26.


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       If the plaintiff establishes a prima facie case, the burden of
       production shifts to the employer to articulate some legitimate,
       nondiscriminatory reason for the adverse employment action.
       Turner [v. Shahed Ents., 10th Dist. Franklin No. 10AP-892, 2011-
       Ohio-4654.] ¶ 14. If an employer meets its burden of production,
       a plaintiff must prove by a preponderance of the evidence that the
       employer’s reason was merely a pretext for unlawful
       discrimination.

Ames, supra, at ¶ 27, citing Texas Dept. of Community Affairs v. Burdine, 450 U.S.

248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

                                  Legal Analysis

       {¶122} In her complaint, Angelina pled a perceived disability discrimination

claim. Doc. 1. Further, in her motion opposing summary judgment, Angelina

argued that her employer perceived her as disabled and that this perception

motivated her employer to terminate her. Doc. 38. She did not argue that she was,

in fact, disabled. Doc. 38. See Angelina Deposition, 130-131, 191, 204. Thus,

Angelina raises a perceived disability discrimination claim, not a disability

discrimination claim. In its judgment entry, the trial court considered this claim in

the following manner:

       After reviewing the evidentiary material in favor of plaintiff, this
       Court finds plaintiff has not pointed out evidence sufficient to
       create a genuine issue of material fact as to whether she was
       disabled or handicapped. Therefore, she has not presented
       sufficient facts to survive a summary judgment against her on her
       claim of disability discrimination.

Doc. 43. The trial court granted summary judgment on this claim because Angelina

had not identified evidence that she had a disability. Doc. 43. However, since

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Angelina raised a perceived disability discrimination claim, she did not have to point

to evidence that she actually had a qualifying disability in order to defeat summary

judgment on this issue.

       {¶123} Thus, the trial court applied the wrong legal standard, evaluating

Angelina’s perceived disability discrimination claim as a disability discrimination

claim. Because the trial court did not apply the proper legal standard to Angelina’s

claim, we must remand this issue to the trial court for consideration under the proper

legal standard. Angelina’s fourth assignment of error is sustained.

                                     Conclusion

       {¶124} Having found no error prejudicial to the appellant in the particulars

assigned and argued in the appellant’s first, second, and third assignments of error,

the judgment of Allen County Court of Common Pleas is affirmed as to these issues.

Having found error prejudicial to the appellant in the particulars assigned and

argued in the appellant’s fourth assignment of error, the judgment of the Allen

County Court of Common Pleas is reversed as to these issues.

                                                         Judgment Affirmed in Part
                                                                  Reversed in Part
                                                             And Cause Remanded
PRESTON and ZIMMERMAN, J.J., concur.

/hls




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