[Cite as Lehmier v. W. Res. Chem. Corp., 2018-Ohio-3351.]


STATE OF OHIO                    )                          IN THE COURT OF APPEALS
                                 )ss:                       NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

ANNMARIE LEHMIER                                            C.A. No.   28776

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
WESTERN RESERVE CHEMICAL                                    COURT OF COMMON PLEAS
CORPORATION, et al.                                         COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV-2016-09-3832
        Appellees

                                DECISION AND JOURNAL ENTRY

Dated: August 22, 2018



        CALLAHAN, Judge.

        {¶1}    Appellant, Annmarie Lehmier, appeals from the judgment of the Summit County

Common Pleas Court granting summary judgment to Appellees, Western Reserve Chemical

Corporation, Ronald Anderson, and Tony Hall (collectively “Western Reserve Chemical”). For

the reasons set forth below, this Court affirms in part and reverses in part.

                                                     I.

        {¶2}    Western Reserve Chemical Corporation (“the Company”) manufactures and

supplies chemicals to the rubber and polymer industries. The Company had four account

managers: Mr. Anderson, who was also the president of the Company; Mr. Hall, who was also

the vice-president of business development; Ms. Lehmier; and D.K.               Mr. Hall was Ms.

Lehmier’s direct supervisor. Ms. Lehmier was the only female account manager. The Company

hired D.R., a male, to replace Ms. Lehmier after her termination.
                                                 2


       {¶3}       Ms. Lehmier was hired in March 2015 as an account manager for the Company.

Ms. Lehmier’s job duties included marketing the Company’s products to existing customers and

developing new customers in her assigned territories, which included Ohio, Michigan,

Wisconsin, Minnesota, New York, and Vermont. Account managers, including Ms. Lehmier,

were required to travel to meet with existing and new customers.

       {¶4}       During her employment, Ms. Lehmier perceived that she was subject to multiple

instances of discrimination based upon her gender. For instance, Ms. Lehmier was assigned to

an office away from the other account managers, she did not receive a company car on her first

day of employment, she did not receive adequate training and mentoring from Mr. Hall, she was

assigned a less productive customer base, she was required to work at a booth instead of

networking throughout the area at a conference, colleagues outside of the Company were

discouraged from helping her, Mr. Hall was not supportive of her efforts and progress with

customers, and Mr. Hall sabotaged her sales by denying her access to product in stock.

Additionally, Ms. Lehmier believed that the travel policy implemented in January 2016 was

discriminatory because only she was required to comply with the policy and the policy required

her to use hotels that were “unsafe” and “dumps,” thereby interfering with her ability to perform

her job duties.

       {¶5}       In mid-January, Mr. Hall instructed Ms. Lehmier and her co-worker, D.K., to

prepare a presentation regarding their respective sales, “a list of prospects[,] and a plan of action

for sales and sales growth heading into 2016.” The purpose of the presentation was to gather

information from the account managers who were in the field regarding what business “was in

the pipeline” in order to budget and prepare for the 2016 fiscal year. The presentation also
                                               3


allowed Mr. Hall and Mr. Anderson to assess whether Ms. Lehmier had plans to travel to

develop new customers.

        {¶6}    In late January 2016, Ms. Lehmier drafted an email to Mr. Anderson in which she

cited her perceived inability to meet her job duties and travel requirements and requested an

inside sales position. However, Ms. Lehmier never sent the email because she “decided to try

and stick it out.”

        {¶7}    Instead of sending the email, Ms. Lehmier met with Mr. Anderson on Thursday,

February 11, 2016, to discuss Mr. Hall’s conduct toward her and her job performance. During

the conversation, Mr. Anderson made two comments in response to Ms. Lehmier’s complaints

and her performance concerns: he suggested she “‘grow a pair’” and “‘wear shorter skirts

because everyone likes to chase skirts.’”

        {¶8}    The next day, Ms. Lehmier and her co-worker, D.K., gave separate presentations

to Mr. Hall, Mr. Anderson, the controller, and a customer service representative of the Company

regarding their sales. Ms. Lehmier’s presentation was based on her “account base – how well

[she] did in 2015, how much [she] grew the accounts, growth opportunities, [and] threats.” Ms.

Lehmier’s presentation was limited to an analysis of her sales in 2015 and did not address any

plans for sales growth or travel to engage new customers in 2016. Immediately after her

presentation, Mr. Anderson told Ms. Lehmier she “did a great job.” Mr. Anderson also told the

customer service representative that Ms. Lehmier had done “‘a great job and [he was] proud of

her.’” Based on Mr. Anderson’s “praise[]” and the figures she showcased in the presentation,

Ms. Lehmier believed she was performing her job well.

        {¶9}    Later that day, Mr. Hall and Mr. Anderson discussed Ms. Lehmier’s failure to

travel and lack of strategy to engage new customers. They decided to terminate Ms. Lehmier.
                                                   4


          {¶10} On the Monday after the presentation, Mr. Hall and Ms. Lehmier discussed her

presentation and job performance. While Ms. Lehmier felt she was doing a good job, Mr. Hall

disagreed and told her she was not cut out for sales. In response to Mr. Hall’s criticisms, Ms.

Lehmier complained to him about the “offensive comments” Mr. Anderson made to her a few

days earlier.

          {¶11} The next day, Ms. Lehmier discussed Mr. Anderson’s “offensive comments” with

the Company’s controller. Ms. Lehmier learned later that day that she was going to be fired on

Friday.     Ms. Lehmier, however, did not come to work on Friday and was terminated the

following week.

          {¶12} Ms. Lehmier filed a complaint against Western Reserve Chemical, asserting

claims of gender discrimination, retaliation, intentional infliction of emotional distress,

defamation, and hostile work environment. Following discovery, Western Reserve Chemical

moved for summary judgment as to each of Ms. Lehmier’s five causes of action. The parties

fully briefed the summary judgment issues. The trial court granted summary judgment in favor

of Western Reserve Chemical and against Ms. Lehmier as to all five causes action.

          {¶13} Ms. Lehmier timely appeals from this judgment entry, asserting three assignments

of error.    Because she only raises challenges to her claims of gender discrimination and

retaliation, this Court will limit its review accordingly.

                                                  II.

                               ASSIGNMENT OF ERROR NO. 1

          THE TRIAL COURT ACTED AS TRIER OF FACT, AND CONTRARY TO []
          CIV.R. 56(C) WHEN IT CONCLUDED THAT [WESTERN RESERVE
          CHEMICAL’S] REASON FOR [MS. LEHMIER’S] TERMINATION WAS
          BASED UPON A LEGITIMATE BUSINESS REASON.
                                                5


       {¶14} Ms. Lehmier argues that the trial court erred in granting summary judgment on

her gender discrimination claim because she “offered no facts to show that [Western Reserve

Chemical’s] reasons for termination were pretextual.” This Court disagrees.

       {¶15} Appellate courts consider an appeal from summary judgment under a de novo

standard of review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court uses

the same standard that the trial court applies under Civ.R. 56(C), viewing the facts of the case in

the light most favorable to the non-moving party and resolving any doubt in favor of the non-

moving party. See Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).

Accordingly, this Court stands in the shoes of the trial court and conducts an independent review

of the record.

       {¶16} Summary judgment is proper under Civ.R. 56 when: (1) no genuine issue as to

any material fact exists; (2) the party moving for summary judgment is entitled to judgment as a

matter of law; and (3) viewing the evidence most strongly in favor of the non-moving party,

reasonable minds can only reach one conclusion, and that conclusion is adverse to the non-

moving party. Civ.R. 56(C); Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶17} Summary judgment consists of a burden-shifting framework. The movant bears

the initial burden of demonstrating the absence of genuine issues of material fact concerning the

essential elements of the non-moving party’s case. Dresher v. Burt, 75 Ohio St.3d 280, 292

(1996). Specifically, the moving party must support the motion by pointing to some evidence in

the record of the type listed in Civ.R. 56(C). Id. at 292-293. Once the moving party satisfies this

burden, the non-moving party has a reciprocal burden to “set forth specific facts showing that

there is a genuine issue for trial.” Id. at 293. The non-moving party may not rest upon the mere
                                                  6


allegations or denials in his pleadings, but instead must submit evidence as outlined in Civ.R.

56(C). Id. at 293; Civ.R. 56(E).

       {¶18} The trial court set forth the elements for a gender discrimination claim and the

subsequent burden-shifting and pretext tests. In granting summary judgment on the gender

discrimination claim in favor of Western Reserve Chemical, the trial court found the following:

1) Ms. Lehmier set forth a prima facie case for gender discrimination, 2) Western Reserve

Chemical established a legitimate business reason for terminating Ms. Lehmier’s employment,

and 3) Ms. Lehmier failed to demonstrate that Western Reserve Chemical’s basis for termination

was pretext.

       {¶19} Ms. Lehmier does not challenge the gender discrimination, burden-shifting, and

pretext case law set forth and relied upon by the trial court. Instead, Ms. Lehmier only contests

the trial court’s conclusion that she failed to present evidence that Western Reserve Chemical’s

legitimate business reason for terminating her employment was pretext.

       {¶20} When an employee establishes a prima facie case of gender discrimination, the

burden shifts to the employer to set forth a legitimate, nondiscriminatory reason for the

discharge. Fox v. Lorain Cty., 9th Dist. Lorain No. 07CA009134, 2007-Ohio-6143, ¶ 10. The

employer’s burden is simply one of production. Manofsky v. Goodyear Tire & Rubber Co., 69

Ohio App.3d 663, 667 (9th Dist.1990). If the employer satisfies its burden of production, the

employee then must present evidence that the employer’s proffered nondiscriminatory reason

was a mere pretext for unlawful discrimination. Fox at ¶ 10. “‘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., 9th Dist. Medina No. 13CA0093-M, 2015-
                                                 7


Ohio-1878, ¶ 27, quoting Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir.2008). “The

ultimate burden of persuasion to demonstrate discrimination remains with the [employee].”

Dunn v. GOJO Industries, 9th Dist. Summit No. 28392, 2017-Ohio-7230, ¶ 41.

       {¶21} Ms. Lehmier opposed Western Reserve Chemical’s legitimate business reason by

arguing that “the reason proffered by [Western Reserve Chemical] for the termination [was] not

factual, and therefore pretextual.” This approach amounts to an attack on the credibility of the

employer’s proffered reason. See Dunn at ¶ 17, quoting Smith v. Dept. of Pub. Safety, 10th Dist.

Franklin No. 12AP-1073, 2013-Ohio-4210, ¶ 78. The employee has the burden of proving the

employer’s reason was false and that discrimination was the real reason for the discharge. See

Lindsay v. Children’s Hosp. Med. Ctr. of Akron, 9th Dist. Summit No. 24114, 2009-Ohio-1216,

¶ 14, quoting Bennett v. Roadway Express, Inc., 9th Dist. Summit No. 20317, 2001 Ohio App.

LEXIS 3394, *28-29 (Aug. 1, 2001), quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515

(1993) (“‘[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.’”).

       {¶22} To overcome summary judgment on the issue of pretext, the employee cannot

simply deny the facts underlying the employer’s decision, but instead must put forth “evidence

creating a material dispute as to the employer’s honest belief in its proffered legitimate,

nondiscriminatory reason.” Wigglesworth v. Mettler Toledo Internatl., Inc., 10th Dist. Franklin

No. 09AP-411, 2010-Ohio-1019, ¶ 19. See Dunn at ¶ 17. To exhibit an honest belief, “‘the

employer must establish its reasonable reliance on particularized facts that were before it at the

time it made the adverse employment decision.’” Dunn at ¶ 18, quoting Dept. of Pub. Safety at ¶

79, citing Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998). “‘Mere conjecture that

[the] employer’s explanation is a pretext for intentional discrimination is an insufficient basis for
                                                  8


denial of summary judgment.’” Dunnigan v. City of Lorain, 9th Dist. Lorain No. 02CA008010,

2002-Ohio-5548, ¶ 14, quoting Carney v. Cleveland Hts.-Univ. Hts. City School Dist., 143 Ohio

App.3d 415, 429 (8th Dist.2001).

       {¶23} Mr. Hall and Mr. Anderson terminated Ms. Lehmier’s employment because she

“fail[ed] to perform the tasks required for her job,” namely she “stopped trying to travel” to her

assigned territories outside of Ohio and “demonstrated an inability to engage existing customers

and develop new ones.” Mr. Hall and Mr. Anderson made the termination decision following

Ms. Lehmier’s presentation to them on February 12, 2016.

       {¶24} Mr. Hall and Mr. Anderson both were aware of Ms. Lehmier’s struggles with

meeting new customers in her territories. Ms. Lehmier raised her concerns about Mr. Hall’s

demeanor and her inability to secure meetings with potential new customers to Mr. Anderson in

October 2015 at a dinner meeting, and again in February 2016 at a meeting in his office, the day

before her presentation.

       {¶25} As her direct supervisor, Mr. Hall would meet monthly with Ms. Lehmier and

review her call sheets to see who she had met with and how many customer trips she made. In

September or October of 2015, Mr. Hall “could see a pattern of [Ms. Lehmier’s] inability to

schedule trips starting to develop.” Ms. Lehmier would “get upset” when he tried to address her

job “responsibility of analyzing the market to determine whether there were other customers that

she could call on in the plastics, adhesives, sealants and coatings area.”

       {¶26} Mr. Hall testified that “[Ms. Lehmier] probably made somewhere between five to

seven * * * long distance trips” during her employment. Despite those long distance trips in the

beginning of her employment, Mr. Hall averred that “[Ms. Lehmier] did not schedule a single

out[-]of[-]state trip during the final two to three months of her employment.” Accordingly, it
                                                9


became “clear” to both Mr. Hall and Mr. Anderson that by the end of 2015 “[Ms.] Lehmier had

more or less stopped trying to travel and getting in to see customers” for “face[-]to[-]face

customer contact.”

       {¶27} Mr. Hall and Mr. Anderson were “review[ing Ms. Lehmier’s] performance on an

ongoing basis, month over month [and they] were very familiar with the circumstances.” Ms.

Lehmier’s presentation in February 2016 demonstrated to Mr. Hall and Mr. Anderson that she

had “no clear plan going forward to get on the road to develop existing customers and [to] create

new [customers].” Ms. Lehmier conceded that her presentation did not contain any projections

for 2016.

       {¶28} According to the customer service representative, prior to the presentation, Mr.

Anderson commented to her that “it was going to be a difficult day for [Ms. Lehmier].” When

she asked “why,” Mr. Anderson responded that “he wasn’t planning on firing her, but that she is

going to find out that she is not cut out to be a salesman.” However, Mr. Anderson went on to

say that “he ‘might [be] full of sh** if she proves me wrong.’” Immediately following the

presentation, Mr. Anderson told the customer service representative “‘I guess I’m full of sh**.

She did a great job and I’m proud of her.’” Additionally, at the conclusion of the presentation,

Mr. Anderson told Ms. Lehmier that she “did a great job.”

       {¶29} However, the following Monday Mr. Hall met with Ms. Lehmier and “berat[ed

her] on how horrible [she] was at sales and that [she] should take a good hard look at [her]self

and come to terms with the fact that not everyone is cut out for sales.” Mr. Hall told her “all the

things that were wrong with [her] as a salesperson,” including her lack of travel out-of-state. Ms.

Lehmier “shut down” and “let him go” “firing negative criticism” at her. Ms. Lehmier was
                                                10


“shock[ed]” by Mr. Hall’s criticisms in light of Mr. Anderson’s “praise[]” of her presentation

and performance the previous Friday.

          {¶30} Ms. Lehmier argued that she never stopped traveling to meet customers and, in

fact, was terminated upon her return from a customer meeting. Ms. Lehmier submitted her

calendars to show that she was actively traveling to meet clients in December 2015 and January

and February 2016. Ms. Lehmier, however, misconstrues the scope of the “travel” upon which

Mr. Hall and Mr. Anderson based their decision to terminate her. Mr. Hall and Mr. Anderson

were concerned with Ms. Lehmier’s failure to travel out-of-state to the “massive territor[ies]”

assigned to her which were “ripe” with new client potential, and not her travel within Ohio to

meet new and existing customers. Ms. Lehmier’s calendars for these three months only reflected

travel to customers located within “northeast Ohio.” Ms. Lehmier failed to provide any evidence

that she traveled out-of-state to meet with existing or potential customers during this three-month

period.

          {¶31} Ms. Lehmier argues that her unsent email should not be viewed as a “confession”

that she was not performing her job duties. The unsent email goes to Ms. Lehmier’s beliefs or

state of mind at the end of January 2016. The email was never sent to Mr. Anderson.

Accordingly, the contents of Ms. Lehmier’s email were not part of the particularized facts upon

which Western Reserve Chemical reasonably relied upon when it made its decision to terminate

Ms. Lehmier. Therefore, Western Reserve Chemical cannot rely upon, nor will this Court

consider, Ms. Lehmier’s unsent email to support Western Reserve Chemical’s honest belief in its

proffered legitimate business reason.

          {¶32} Ms. Lehmier also challenged Mr. Hall and Mr. Anderson’s decision to terminate

her because she contended that she was performing her job well, based upon the sales figures she
                                               11


produced at her presentation and because she had added new accounts, such as Akron

Dispersion, and was in the process of arranging a meeting with a potential customer, American

Phoenix. However, Ms. Lehmier’s subjective evaluation of her own performance is not the

relevant inquiry. See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.1980). “It is the perception of

the decision maker which is relevant.” Id.

       {¶33} Both Mr. Anderson and Mr. Hall were the decision makers in the termination of

Ms. Lehmier. Their contradictory statements about Ms. Lehmier’s performance are relevant to

refute their honest belief in their proffered legitimate, nondiscriminatory reason for terminating

Ms. Lehmier. While Ms. Lehmier did not present evidence that she was traveling out-of-state,

she did present evidence calling into question whether her job performance was the reason for

her termination. Viewing this evidence in the light most favorable to Ms. Lehmier, there remains

a genuine issue of material fact as to whether Western Reserve Chemical’s proffered reason for

her termination had a basis in fact.

       {¶34} However, our analysis does not stop here. Ms. Lehmier must also put forth

evidence creating a genuine issue of material fact that the true reason for her termination was

because of her gender. See Williams v. City of Akron, 107 Ohio St.3d 203, 2005-Ohio-6268, ¶ 14,

quoting St. Mary’s, 509 U.S. at 515 (pretext requires that the basis for termination be false and

discrimination was the real reason). Despite the fact that this is a gender discrimination claim,

Ms. Lehmier’s pretext argument is not that she was fired for being a woman, but that Western

Reserve implemented a discriminatory travel policy and then terminated her employment when

she “fail[ed] to abide by” that policy.1


1
 Ms. Lehmier recognizes that the fact that her termination took place after she complained about
Mr. Anderson’s “offensive comments” applies to her retaliation claim and not to her gender
discrimination claim.
                                                 12


       {¶35} The travel policy implemented on January 1, 2016 established a $60 per diem for

food and beverage and designated the use of two hotel chains. Ms. Lehmier takes no issue with

the per diem rate, only the limitation on the hotel chains. Ms. Lehmier claimed the travel policy

was discriminatory based on gender because it required her to use two hotel chains that put her

“safety[] at risk where [her] customers were.”

       {¶36} Ms. Lehmier failed to explain how a policy that was instituted on January 1, 2016

played any role in her lack of out-of-state travel for the previous month. To the extent that Ms.

Lehmier suggested Western Reserve Chemical implemented the travel policy to sabotage her

travel efforts in January and February 2016, she offered no evidence that the two designated

hotel chains were “unsafe for her” as a woman or that, even if they were, Western Reserve

Chemical had knowledge of that fact when it implemented the travel policy. Indeed, her own

attorney repeatedly framed his questions regarding the travel policy and the issue of hotel safety

as, “Whether or not it’s true or not, in [Ms. Lehmier’s] mind she felt safety was an issue,

correct?” Ms. Lehmier has only offered conjecture in support of this argument. See Dunnigan,

2002-Ohio-5548, at ¶ 14, quoting Carney, 143 Ohio App.3d at 429.

       {¶37} Additionally, Ms. Lehmier argued that the travel policy was discriminatory based

on gender because it “applied to [her] and [her] alone.”         Relying on calendars and the

Company’s credit card statements, Ms. Lehmier noted that D.K., the other male account

manager, did not use the designated hotel chains.2 According to Mr. Hall, D.K. had complained

about the travel policy and received an exception to use a different hotel chain as necessary. Mr.

Hall acknowledged that Ms. Lehmier “complained bitterly” about the travel policy, because she



2
 The credit card statements reflect that D.K. split his travel between the designated hotel chains
and another hotel chain.
                                                13


felt the hotel chains were “unsafe” and “nasty.” In response to Ms. Lehmier’s complaints, Mr.

Hall told her that “[i]f [she couldn’t] find stuff that suit[ed her] needs in any particular market,

[she could] default to what works.” Ms. Lehmier testified that she did not feel that Western

Reserve Chemical would support her going to a different hotel if her safety was at risk.

However, Ms. Lehmier conceded that she never asked to stay at a different hotel chain because

she did not travel after the policy went into effect. Again, Ms. Lehmier has only provided

conjecture and no evidence that the travel policy only applied to her, a female employee. See

Dunnigan at ¶ 14, quoting Carney at 429. Viewing the evidence in the light most favorable to

Ms. Lehmier, she has failed to put forth evidence creating a genuine issue of material fact that

she was terminated based upon her gender.

       {¶38} Based on the foregoing, Ms. Lehmier has failed to create a genuine issue of

material fact that Western Reserve Chemical’s proffered reason for her termination was pretext.

Without evidence of pretext, this Court concludes that the trial court did not err in granting

Western Reserve Chemical summary judgment on Ms. Lehmier’s gender discrimination claim.

       {¶39} Ms. Lehmier’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED BY NOT CONSIDERING [MS. LEHMIER’S]
       CLAIMS FOR DISCRIMINATORY TREATMENT DURING THE COURSE
       OF HER EMPLOYMENT WHEN IT GRANTED SUMMARY JUDGMENT IN
       FAVOR OF [WESTERN RESERVE CHEMICAL].

       {¶40} In her second assignment of error, Ms. Lehmier argues that the trial court erred in

granting summary judgment on her gender discrimination claim because it only considered her

termination and not her allegations of other discriminatory acts. This Court disagrees.

       {¶41} In her brief in opposition to the summary judgment motion, Ms. Lehmier argued

that Western Reserve Chemical’s motion for summary judgment on the gender discrimination
                                               14


claim only addressed one alleged act of gender discrimination: Ms. Lehmier’s termination. Ms.

Lehmier argued that summary judgment was not appropriate because she had pled other

discriminatory acts in her gender discrimination claim that were not addressed in Western

Reserve Chemical’s summary judgment motion.

       {¶42} On appeal, Ms. Lehmier relies on R.C. 4112.02(A) to argue that the other

discriminatory acts were “issue[s] of workplace discrimination” that affected her “terms,

conditions, or privileges of employment.” In essence, Ms. Lehmier is arguing that the other

discriminatory acts did not culminate in her termination, but instead generated other adverse

employment actions related to the terms, conditions, or privileges of her employment. Ms.

Lehmier’s complaint does not support this argument.

       {¶43} While the complaint listed these other discriminatory acts in the “FACTS

COMMON TO ALL CLAIMS” section, the gender discrimination claim in count one of the

complaint only identified one manner in which the terms, conditions, or privileges of

employment were affected, and that was her discharge. (Emphasis sic.) While Ms. Lehmier used

the phrase “other privileges and conditions of employment” in this, and each of the other counts,

she did so only in the context of damages:

       As a direct and proximate result of [Western Reserve Chemical’s] conduct, Ms.
       Lehmier has suffered and will continue to suffer economic and non-economic
       injuries, including but not limited to pain and suffering and the loss of salary,
       benefits and other privileges and conditions of employment, for which [Western
       Reserve Chemical is] liable.

The reference to “loss of salary, benefits and other privileges and conditions of employment”

addresses Ms. Lehmier’s damages arising from her termination of employment, and not a

separate adverse employment action as contemplated by R.C. 4112.02(A). There are no facts or

allegations in the complaint that these other discriminatory acts had any other effect except
                                               15


termination. Because Ms. Lehmier only pled termination as the manner in which the terms,

conditions, or privileges of employment was affected, it was proper for Western Reserve

Chemical to move for summary judgment and the trial court to decide gender discrimination

based upon termination and not the other alleged discriminatory acts.

       {¶44} Ms. Lehmier’s second assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ACTED [] AS TRIER OF FACT, AND CONTRARY TO
       [] CIV.R. 56(C) WHEN IT CONCLUDED THAT [MS. LEHMIER] DID NOT
       ESTABLISH A CLAIM FOR RETALIATION.

       {¶45} Ms. Lehmier contends that the trial court erred when it granted summary

judgment in favor of Western Reserve Chemical on her retaliation claim because there were

genuine issues of material fact regarding pretext. This Court agrees that the trial court erred in

granting summary judgment on the retaliation claim, but for a different reason.

       {¶46} “A party seeking summary judgment must specifically delineate the basis upon

which summary judgment is sought in order to allow the opposing party a meaningful

opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988), syllabus. Granting

summary judgment on a basis not raised deprives the party opposing summary judgment of

any opportunity to respond. See Butler v. Harper, 9th Dist. Summit No. 21051, 2002-Ohio-5029,

¶ 28, citing DePugh v. Sladoje, 111 Ohio App.3d 675, 681-682 (2d Dist.1996). This Court has

held that it is error for a trial court to award summary judgment on a ground not specified in the

motion for summary judgment. See Butler at ¶ 28; Albrecht v. Marinas Internatl. Consol., LP,

9th Dist. Summit No. 25246, 2010-Ohio-5732, ¶ 17-18. See also Smith v. Ray Esser & Sons,

Inc., 9th Dist. Lorain No. 10CA009798, 2011-Ohio-1529, ¶ 14, quoting State ex rel. Sawicki v.

Court of Common Pleas of Lucas Cty., 121 Ohio St.3d 507, 2009-Ohio-1523, ¶ 27.
                                               16


       {¶47} As to Ms. Lehmier’s claim for retaliation, Western Reserve Chemical moved for

summary judgment based upon one argument: there was “no causal connection between the

protected activity and the adverse action.” This is one of the elements that an employee must

demonstrate to establish a prima facie case of retaliation. See Greer-Burger v. Temesi, 116 Ohio

St.3d 324, 2007-Ohio-6442, ¶ 13.

       {¶48} While the trial court set forth the case law, the facts, and the arguments of the

parties regarding the causal connection between the protected activity and the adverse action, it

did not make a determination on this element. Nor did the trial court affirmatively find that Ms.

Lehmier established a prima facie case of retaliation that would trigger the burden shifting

analysis of legitimate business reason and pretext. See Greer-Burger at ¶ 14. Instead, the trial

court stated that

       [a]ssuming arguendo that [Ms. Lehmier] demonstrated a prima facie case of
       retaliation based upon her discharge, [Western Reserve Chemical has] supplied
       legitimate business reasons for terminating her. As such, [Ms. Lehmier] has the
       ultimate burden of providing evidence that [Western Reserve Chemical’s]
       proffered legitimate reasons were pretextual. * * * [Ms. Lehmier] cannot show
       pretext.

(Internal citation omitted.) Contrary to the trial court’s judgment, Western Reserve Chemical

never asserted an argument under the burden shifting analysis of a legitimate business reason as

to the retaliation claim. Western Reserve Chemical asserted that argument only in the gender

discrimination claim. Accordingly, the trial court incorrectly applied Western Reserve

Chemical’s legitimate business reason argument in the retaliation claim and improperly awarded

summary judgment based on an argument that was not presented by Western Reserve Chemical.

       {¶49} While this Court conducts a de novo review in a summary judgment context, we

refrain from addressing Western Reserve Chemical’s argument that there was “no causal

connection between the protected activity and the adverse action” because the trial court did not
                                                17


decide that issue. This Court has repeatedly held that issues raised in summary judgment

motions, but not considered by the trial court will not be decided by this Court in the first

instance. See Skidmore v. Natl. Bronze & Metals (Ohio), Inc., 9th Dist. Lorain No. 12CA010328,

2014-Ohio-4423, ¶ 16; Neura v. Goodwill Industries, 9th Dist. Medina No. 11CA0052-M, 2012-

Ohio-2351, ¶ 19; Guappone v. Enviro-Cote, Inc., 9th Dist. Summit No. 24718, 2009-Ohio-5540,

¶ 13. To consider summary judgment arguments in the first instance on appeal “effectively

depriv[es] the non-prevailing party of appellate review.” Guappone at ¶ 13.

       {¶50} Ms. Lehmier’s third assignment of error is sustained.

                                                III.

       {¶51} Ms. Lehmier’s first and second assignments of error are overruled and her third

assignment of error is sustained. The judgment of the Summit County Common Pleas Court is

affirmed in part and reversed in part.

                                                                         Judgment affirmed in part
                                                                             and reversed in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                18


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

STEVEN W. MASTRANTONIO, Attorney at Law, for Appellant.

HAMILTON DESAUSSURE, JR., Attorney at Law, for Appellee.
