[Cite as Brogan v. Family Video Movie Club, Inc., 2015-Ohio-70.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Tamara Brogan, et al.                                     Court of Appeals No. L-13-1283

        Appellant                                         Trial Court No. CI0201203613

v.

Family Video Movie Club, Inc.                             DECISION AND JUDGMENT

        Appellee                                          Decided: January 9, 2015



                                                 *****

        Patricia Horner, for appellant.

        Steven J. Forbes, for appellee.

                                                 *****

        JENSEN, J.
        {¶ 1} Plaintiffs-appellants, Tamara Brogan and Cynthia Lentz, appeal the

judgment of the Lucas County Court of Common Pleas, journalized December 4, 2013,

which granted summary judgment in favor of defendant-appellee, Family Video Movie

Club, Inc. For the reasons that follow, we affirm.
                                     I. Background

       {¶ 2} Cynthia Lentz and Tamara Brogan were both employed by Family Video.

Lentz first became employed by Family Video in August of 1998 when she was hired as

a manager-in-training. She was promoted to store manager in December of that year. At

some point, Lentz resigned, was later rehired, then resigned again in May of 2006. She

was rehired in July of 2007, again as a store manager.

       {¶ 3} In September of 2009, the store Lentz managed was robbed while Lentz was

working. She was terminated for failing to comply with Family Video’s procedures for

handling a robbery situation. According to Family Video, Lentz violated its policy by

following the thief as he exited the store, at which time he turned around and assaulted

her, causing injury to Lentz. Upon her termination, Lentz was immediately replaced by

Alex King, a male. Lentz implored the assistance of Bob Kording, an executive vice-

president with the company, who quickly facilitated her rehiring. However, because her

position had been filled, she was transferred to another Family Video location. At the

time of her re-hire, concerns were expressed to her by regional manager, Jason Juhasz,

about her attitude toward customers, her tendency to complain about company changes to

hourly employees instead of to her managers, and her pushing-back when presented with

goals. Those criticisms had been passed along to Juhasz by Grant Davis, a division

manager to whom Lentz directly reported. Lentz was told that she would be terminated if

she failed to meet her managers’ expectations for improvement.




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      {¶ 4} In the years following her 2007 re-hiring, Davis disciplined Lentz a number

of times. According to Family Video Communication Forms, in June of 2007, she left

work an hour and forty-three minutes early, allegedly without permission. In December

of 2007, she was late to three meetings. In December of 2008, she was late for work,

causing the store to open 20 minutes late. In November of 2009, she failed to make mid-

shift deposits as required. In December of 2009, she left a “very rude” voicemail for

Davis. In January of 2010, she failed to complete a monthly report, failed to complete

items contained on a checklist provided to her by Davis, and was consistently late for her

Friday shifts. Although not a customary method for evaluating store managers, Davis

distributed evaluation forms to the hourly employees Lentz supervised and asked them to

rate her performance. Those evaluations were very positive. Nevertheless, based on the

incidents relayed to him by Davis, Juhasz terminated Lentz’s employment on June 4,

2010, and replaced her with Aaron Roberts, a male.

      {¶ 5} Brogan’s employment with Family Video began December 22, 2004. She

was promoted to store manager in 2006. In August of 2008 she was demoted to assistant

manager, and she was ultimately terminated on April 27, 2011.

      {¶ 6} As with Lentz, Davis was the district manager for the stores at which Brogan

worked. In the months preceding her demotion to assistant manager, he issued a number

of write-ups. In February of 2008, he complained that Brogan failed to organize the

employee restroom and had not exhibited strong management skills due to her failure to

delegate. One week in May of 2008, she did not work her required 44 hours during the



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store’s hours of operation. In July of 2008, Davis claimed that she failed to show

improvement by not doing her part to drive business and to be a leader. In addition to

these written disciplinary warnings, Davis allegedly spoke with Brogan on a number of

occasions about her failing to set a good example for employees through her sales, failing

to hold her team accountable, failing to complete “we miss you” calls to customers, poor

time management, failing to delegate, poor organization and planning, underperformance

by her store, and failing to motivate and follow up with staff. As with Lentz, Davis asked

hourly store employees to evaluate Brogan’s performance. According to those

evaluations, she was very good with customers, but she was described as not completing

tasks efficiently and not providing training and direction to her staff. Davis demoted

Brogan in August of 2008 and replaced her with a male.

       {¶ 7} After her demotion, it appears that approximately two-and-a-half years

passed with no write-ups. But in February of 2011, Davis disciplined Brogan for being

late for five shifts in January. In March of 2011, Davis complained that Brogan struggled

to complete day-to-day tasks and did little to train the staff. In April of 2011, she was

disciplined for an incident in March in which her shift ended at 12:30, but she stayed

until 1:30 to complete assigned tasks. Based on these incidents relayed to him by Davis,

John Kobalanski, a regional manager, terminated Brogan’s employment on April 27,

2011. She was replaced by a woman, Amanda Palmer.

       {¶ 8} On June 4, 2012, Brogan and Lentz filed a complaint alleging violations of

Ohio’s wage and hour laws, wrongful discharge in violation of public policy, violations



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of the federal Fair Labor Standards Act (“FLSA”), gender discrimination, wrongful

discharge in violation of public policy against gender discrimination, and intentional

infliction of emotional distress. According to their complaint, Brogan and Lentz were not

paid overtime for hours worked in excess of 40 hours; Brogan was terminated in

retaliation for reporting alleged FLSA violations; Lentz was terminated on the basis of

gender and was replaced by a man under the age of 40 with less management experience;

Brogan was terminated on the basis of her gender in order to retain a male employee; and

Family Video’s conduct was extreme and outrageous and proximately caused them

extreme emotional distress.

       {¶ 9} On April 12, 2013, after taking appellants’ depositions and exchanging

discovery, Family Video moved for summary judgment on all of appellants’ claims.

After being granted a series of extensions, appellants filed a brief in opposition to the

motion on June 10, 2013, and an amended opposition on September 4, 2013. Those

briefs addressed only the gender discrimination claims. The trial court conducted a

hearing on October 31, 2013, and at that hearing, appellants’ counsel confirmed that

appellants were withdrawing all claims but the gender discrimination claim.

       {¶ 10} At the October 31, 2013 hearing, Brogan argued that she had been demoted

on the basis of her gender. Appellants had not pled this in their complaint, so the court

questioned whether it could consider that claim and instructed the parties to submit

supplemental briefing addressing whether that allegation could be properly considered.

The court also instructed the parties to submit supplemental briefing concerning the



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extent to which Family Video could be held liable for the actions of Davis, its district

manager, when it was Juhasz and Kobalanski who ultimately terminated appellants.

       {¶ 11} The parties submitted their supplemental briefs on November 8, 2013.

Family Video indicated its position that Brogan should be permitted to amend her

complaint to add allegations relating to the demotion, stated that it would not be

prejudiced, but denied that the demotion was the result of discrimination. Although it

conceded that Family Video could be held liable if Davis was found to have demoted

Brogan based on her gender, it contended that in order for Family Video to be held liable

for Lentz’s termination, Lentz would have to show that Davis intended to convince

Juhasz to terminate her on the basis of her gender and that Davis’ conduct caused Juhasz

to act. Appellants did not address the issue of whether Family Video could be held liable

where the supervisor accused of discrimination did not himself carry out the adverse

employment action.

       {¶ 12} In an opinion file-stamped November 27, 2013, the trial court granted

summary judgment to Family Video on all claims. Appellants filed this timely appeal,

assigning the following error for our review:

              I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S

       [sic] MOTION FOR SUMMARY JUDGMENT.

                             II. Standard of Review

       {¶ 13} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same



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standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated:

              (1) that there is no genuine issue as to any material fact; (2) that the

       moving party is entitled to judgment as a matter of law; and (3) that

       reasonable minds can come to but one conclusion, and that conclusion is

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

       made, who is entitled to have the evidence construed most strongly in his

       favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375

       N.E.2d 46 (1978), Civ.R. 56(C).

       {¶ 14} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate

the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,



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675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

                                 III. Law and Analysis

       {¶ 15} Under R.C. 4112.02(A), it is an unlawful discriminatory practice “[f]or any

employer, because of the * * * sex of any person, * * * to discharge without just cause *

* * 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.”

       {¶ 16} A discrimination claim may be proven by direct evidence or by

circumstantial evidence. Silberstein v. Montgomery Cty. Community College Dist., 2d

Dist. Montgomery No. 23439, 2009-Ohio-6138, ¶ 32. “To establish a discrimination

claim based upon circumstantial evidence, a plaintiff must initially demonstrate a prima

facie case of discrimination.” Id., quoting Temple v. City of Dayton, 2d Dist.

Montgomery No. 20211, 2005-Ohio-57, ¶ 85. This requires the plaintiff to show that (1)

she was a member of a statutorily protected class; (2) she was subjected to an adverse

employment action; (3) she was qualified for the position; and (4) she was replaced by, or

that the removal permitted the retention of, a person not belonging to the protected class.

Starner v. Guardian Indus., 143 Ohio App.3d 461, 471, 758 N.E.2d 270 (10th Dist.2001),

citing Tessmer v. Nationwide Life Ins. Co., 10th Dist. Franklin No. 98AP-1278, 1999 WL

771013 (Sept. 30, 1999).




8.
       {¶ 17} Once the plaintiff establishes a prima facie case, the burden shifts to the

employer to show that it had a legitimate, nondiscriminatory reason for its action.

Silberstein at ¶ 34. “If the employer articulates such a reason, the employee must show

that the articulated reason was merely a pretext for discrimination.” Id., quoting Temple

at ¶ 85. To establish pretext, the plaintiff must demonstrate that the articulated reason

“(1) has no basis in fact, (2) did not actually motivate the employer’s challenged conduct,

or (3) was insufficient to warrant the challenged conduct.” (Internal citations omitted.)

Dautartas v. Abbott Labs., 10th Dist. Franklin No. 11AP-706, 2012-Ohio-1709, ¶ 28.

                                     A. Cynthia Lentz

       {¶ 18} In granting summary judgment on Lentz’s claim, the trial court found that

Lentz had established a prima facie case of sex discrimination because she was able to

show that she was a member of a protected class, was discharged, was qualified for her

position, and was replaced by a person outside the class. However, the court found that

Family Video met its burden to provide a legitimate, non-discriminatory reason for

Lentz’s termination—the problems identified in the write-ups. The court concluded that

Lentz failed to demonstrate that Family Video’s articulated reasons for its decision were

pretextual. It observed that the only evidence of pretext advanced by Lentz was an

assertion at her deposition that male employees had been tardy but were not disciplined.

The court held that Lentz failed to identify these males or show that they were similarly-

situated to her. The primary issue on appeal with respect to Lentz’s gender




9.
discrimination claim is whether she met her burden of establishing that the legitimate,

nondiscriminatory reasons proffered by Family Video for her termination were pretext

for discrimination.

       {¶ 19} At her deposition, Lentz addressed many of Davis’ criticisms of her

performance. For instance, with respect to being late on Fridays, she testified that when

she was rehired, she verbally discussed with then-regional manager, John VanSlooten,

that she had child care issues that would cause her to be late for some Friday shifts.

VanSlooten allegedly told her that it was not a problem as long as the store was

adequately staffed. With respect to allegations that she left work early in June of 2007,

she claimed that Davis had given her permission to leave early, but asked that she send an

email when she left. Although she forgot to send the email, she saw Davis at a traffic

light as she was leaving and they discussed through the open windows that she had

forgotten to send the email, which did not appear to be a problem with Davis.

Concerning the “rude” voicemail, she explained that her grandmother had just died and

she was under a lot of stress. She apologized for the voicemail. And with respect to her

failure to complete a report, she testified that Davis assigned the report during a

managers’ meeting and because she was waiting on customers, Davis knew that she had

missed the part of the meeting when he assigned that particular task.

       {¶ 20} The specific reasons set forth on Lentz’s employee termination form were

“lack of respect, acceptance & positive attitude * * * reflected in the disciplinary forms




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from 5/21/10 (excessive tardiness), 1/12/10 (checklist completion & follow-up), 1/11/10

(incomplete work), 12/7/10 (negative attitude to Grant), & 11/25/10 (deposit handling).”

       {¶ 21} To carry her ultimate burden of proof under the first method for showing

pretext, Lentz must present evidence that Family Video’s proffered reasons for her

termination had no basis in fact. However, “[a] reason cannot be proved to be a pretext

for discrimination unless it is shown both that the reason was false, and that

discrimination was the real reason.” Knepper v. Ohio State Univ., 10th Dist. No. 10AP–

1155, 2011-Ohio-6054, ¶ 12. Although Lentz provided what appear to be reasonable

explanations for much of the conduct cited by Davis, she does not deny that these

particular incidents occurred. Because she does not contend that the information

contained in the employee termination form and related disciplinary action forms are

factually false, she cannot establish the first showing as a matter of law. See Frick v.

Potash Corp. of Saskatchewan, Inc., 3d Dist. Allen No. 1-09-59, 2010-Ohio-4292, ¶ 46;

Singleton v. Select Specialty Hosp.-Lexington, Inc., 391 Fed.Appx. 395, 400 (6th

Cir.2010); Smith v. Leggett Wire Co., 220 F.3d 752, 759 (6th Cir.2000).

       {¶ 22} To meet her burden under the second type of showing, Lentz must establish

that although the employer’s legitimate, nondiscriminatory reasons are factually correct

and such facts could motivate discharge, an illegal motivation for termination was more

likely than the reasons proffered by Family Video. Mittler v. OhioHealth Corp., 10th

Dist. Franklin No. 12AP-119, 2013-Ohio-1634, ¶ 48. In considering Lentz’s claim, we

“are not to judge whether [Family Video] made the best or fairest decision, but to



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determine whether the decision would not have been made but for discrimination * * *.”

Id. at ¶ 52, citing Knepper at ¶ 23; Olive v. Columbia/HCA Healthcare Corp., 8th Dist.

Cuyahoga No. 75249, 2000 WL 263261 (Mar. 9, 2000) (explaining that employee’s

“exemplary work record” and “long history of achievement” did not establish that her

termination was the product of discrimination); Dale v. Chicago Tribune Co., 797 F.2d

458, 464 (7th Cir.1986) (“This Court does not sit as a super-personnel department that

reexamines an entity’s business decisions.”). Here, despite what appears to be reasonable

justification for much of the conduct complained of in Lentz’s termination notice and

accompanying write-ups, Lentz has failed to articulate a basis upon which we can

conclude that there exists a genuine issue of material fact whether the decision to

terminate her was illegally motivated.

       {¶ 23} Finally, the third way of showing pretext “ordinarily, consists of evidence

that other employees, particularly employees not in the protected class, were not fired

even though they engaged in substantially identical conduct to that which the employer

contends motivated its discharge of the plaintiff.” (Internal citations and quotations

omitted.) Warden v. Ohio Dep’t of Natural Res., 10th Dist. Franklin No. 13AP-137,

2014-Ohio-35, ¶ 38. “That is, if an employer claims it fired the protected class member

for certain misconduct, but the employer did not fire a person outside the class for

essentially the same conduct, the fact finder could infer the misconduct was not the real

motivation for the discharge.” Id. Here, Lentz claims that others—including two male

employees—were consistently late but were not disciplined. “To establish pretext



12.
through comparison to a similarly-situated co-worker, the co-worker 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.” (Internal citations

and quotations omitted.) Wigglesworth v. Mettler Toledo Internatl., Inc., 10th Dist.

Franklin No. 09AP-411, 2010-Ohio-1019, ¶ 28. Lentz makes vague assertions that two

male employees engaged in substantially similar conduct, however, she has failed to set

forth any facts showing that these male employees were similarly-situated—that is, she

has failed to show that these other individuals were salaried employees who held store

manager positions as she did.

       {¶ 24} We find that Lentz has failed to create a genuine issue of material fact as to

whether Family Video’s reasons for terminating her were pretextual, thus, the trial court

did not err in granting Family Video’s motion for summary judgment.

                                    B. Tamara Brogan

       {¶ 25} Turning to Brogan’s claim, in granting summary judgment to Family

Video, the trial court held that Brogan failed to establish a prima facie case of gender

discrimination because she was replaced by a woman. It should be observed, however,

that the fourth requirement of a prima facie discrimination case—i.e., that the plaintiff

was replaced by someone outside the protected class—can also be established by

showing, in addition to the first three elements, that a comparable non-protected person

was treated better. (Internal quotations omitted.) Mitchell v. Toledo Hosp., 964 F.2d



13.
577, 582-83 (6th Cir. 1992). To establish the “treated better” element, “the plaintiff must

produce evidence which at a minimum establishes (1) that he was a member of a

protected class and (2) that for the same or similar conduct he was treated differently than

similarly-situated” employees who are not members of the protected class. Id., citing

Davis v. Monsanto Chemical Co., 858 F.2d 345 (6th Cir.1988), cert. denied, 490 U.S.

1110, 109 S.Ct. 3166, 104 L.Ed.2d 1028 (1989); Long v. Ford Motor Co., 496 F.2d 500

(6th Cir.1974).

       {¶ 26} Brogan’s claim with respect to her April 2011 termination fails regardless

of whether the “replaced” or “treated better” element is used. When she was terminated,

she was replaced by a female. Further, she has advanced no evidence establishing that

employees outside the protected class were treated better.

       {¶ 27} As to her claim as it relates to her demotion, the trial court refused to

consider Brogan’s claim that she was demoted in order to promote a male, Alex King,

because it was not pled in her complaint. Although Family Video conceded in its

supplemental briefing following the October 31, 2013 hearing that appellants could

properly amend their complaint to include allegations concerning Brogan’s demotion, the

trial court refused to consider the demotion because appellants did not move to amend the

complaint after learning that Family Video did not object.

       {¶ 28} With respect to her gender discrimination claim, Brogan’s complaint

alleged as follows:




14.
              Brogan suffered an adverse employment action by way of her

      termination as part of a scheme to eliminate her employment because of her

      gender. She further states that her termination allowed Defendant to retain

      a male employee in her stead; similarly-situated male employees were not

      subjected to discharge as was Plaintiff Brogan, despite her exemplary

      employment record.

      {¶ 29} It is well-established in Ohio that cases should be decided on their merits.

Perotti v. Ferguson, 7 Ohio St. 3d 1, 3, 454 N.E.2d 951 (1983). As explained by Judge

Osowik while on the trial bench:

              The Ohio Civil Rules require “notice pleading” rather than “fact

      pleading.” “Notice pleading” under Civ.R. 8(A) and 8(E) merely requires

      that a claim concisely set forth only those operative facts sufficient to give

      “fair notice of the nature of the action.” Except in very narrow

      circumstances, such as fraud, a plaintiff is not required to plead the

      operative facts of his or her case with particularity. Plaintiff is not required

      to prove his or her case at the pleading stage. (Internal citations omitted.)

Columbia Gas of Ohio, Inc. v. Robinson, 81 Ohio Misc. 2d 15, 15-17, 673 N.E.2d 701

(M.C.1995).

      {¶ 30} Although it would have been advisable to include specific facts in her

complaint relating to her demotion, it did not change the nature of the action—her claim

remained that she suffered an adverse employment action on the basis of her gender when



15.
she was replaced by a male. But more significantly, Family Video has been on notice

since September of 2012, when Brogan responded to discovery requests, that her

demotion was among the adverse employment actions she was claiming were

discriminatory. That was just three months after filing her complaint. She also testified

at length about this at her January 4, 2013 deposition, and she raised it in response to

Family Video’s motion for summary judgment. Family Video addressed the claim in its

reply in support of summary judgment.

       {¶ 31} In its November 8, 2013 filing in the trial court, Family Video stated:

              After reviewing the issue, * * * Family Video agrees that Ms.

       Brogan should be permitted to amend her Complaint to add this allegation.

       See Oh. Civ. R. 12 (stating that leave of court to amend a pleading “shall be

       freely given when justice so requires”). While Family Video’s Motion for

       Summary Judgment focused on her termination, it addressed her demotion

       claims in its Reply and will not be prejudiced by the Court’s consideration

       of that claim.

       {¶ 32} Brogan’s counsel apparently understood things differently. She believed

that Family Video had conceded that the complaint was sufficient to encompass the

demotion—not that amendment of the complaint was necessary.

       {¶ 33} In its decision, the trial court declared that it would not consider the

demotion claim because Brogan did not file a motion to amend in the 19 days between

the filing of the briefs and the issuance of the court’s ruling. We conclude that this was



16.
error and that the trial court should have communicated to the parties how to address the

matter procedurally, giving Brogan an opportunity to either amend or move to amend the

complaint in the manner preferred by the trial court.1

       {¶ 34} Had the trial court provided Brogan an opportunity to amend or move to

amend her complaint to add allegations respecting her demotion, we assume it would

have concluded that she established a prima facie case of gender discrimination when she

was demoted and replaced by a male. This would have required the court to next

determine whether Family Video articulated a legitimate, non-discriminatory reason for

demoting Brogan.

       {¶ 35} The disciplinary action forms leading to Brogan’s demotion indicate Davis’

concerns: (1) she failed to organize the employee restroom (which served as a storage

area for the store’s promotional artwork) as Davis directed her to do; (2) she was

unorganized and failed to properly delegate; (3) in May of 2008, she failed to work the

required 44 hours during the store’s hours of operation; and (4) she was ineffective as a

manager and did not show improvement despite knowing of Davis’ concerns. According

to a July 2008 email, Davis spoke with Brogan about additional concerns: poor sales,

and failing to hold her team accountable, failing to make “we miss you” calls, not

managing her time well, failing to organize and plan, not setting a good example for her

team, failing to follow-up with employees and to motivate them. Although Brogan

1
  For example, the trial court could have issued an order stating that Brogan shall file a
motion to amend her complaint (or simply file an amended complaint, depending on the
trial court’s preference) within seven days (or some other appropriate time period).


17.
claims that “these disciplinary actions were not, in reality, based on leadership issues,

rather they were based on discriminatory intent and practices,” she offered no evidence to

support that claim or to refute the accuracy of the information contained in the write-ups.2

       {¶ 36} Brogan does assert that Davis treated King more favorably because Davis

did not discipline King for failing to issue a write-up to Brogan for “working off the

clock.” To put it in context, King, who was Brogan’s manager, informed Davis that he

discovered that Brogan had on a couple of occasions worked after the store closed to

catch up on tasks. Brogan’s position is that Davis should have disciplined King for poor

managerial skills exhibited by his failure to discipline Brogan himself. Davis testified

that he expected King to inform him if Brogan worked off the clock because it was an

issue that Davis had discussed with Brogan in the past. We find that this particular

example does not rise to the level of creating a genuine issue of material fact that Davis

treated males more favorably than females.

       {¶ 37} While we recognize that the trial court’s analysis of Brogan’s claim did not

extend beyond determining whether she made a prima facie case, “[i]n our de novo

review of summary judgment matters, we may still inquire whether the judgment may be

affirmed on alternative grounds.” (Citations omitted.) Howell v. Whitehurst Co., 6th

Dist. Lucas No. L-05-1154, 2005-Ohio-6136, ¶ 20-21 (“W[e] conclude that, presuming

appellant can establish a prima facie case, we can alternatively affirm summary judgment
2
  At her deposition, Brogan denied that she did not work the required 44 hours and
claimed that she actually worked 45 hours that week, but she failed to comment in the
space provided on the discipline form or to otherwise establish that she, in fact, worked
the required number of hours.


18.
on grounds that appellant cannot rebut appellee’s legitimate justifications for her

termination by showing pretext.”). Brogan has failed to rebut Family Video’s legitimate,

non-discriminatory reasons for demoting her.

       {¶ 38} We find Lentz’s and Brogan’s sole assignment of error not well-taken.

                                     IV. Conclusion

       {¶ 39} The trial court properly granted summary judgment in favor of Family

Video. We, therefore, affirm the December 4, 2013 judgment of the Lucas County Court

of Common Pleas. The costs of this appeal are assessed to appellants pursuant to App.R.

24.

                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
James D. Jensen, J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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