Cunningham v. Perry & Assocs. ( 2021 )

[Cite as Cunningham v. Perry & Assocs., 2021-Ohio-4295.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
DEBRA CUNNINGHAM,
Plaintiff-Appellant,
v.
PERRY & ASSOCIATES, CPAs, A.C.,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0007
Civil Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 19 CV 302
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Michael W. DeWitt, DeWitt Law, LLC, 4200 Regent Street, Suite 200, Columbus,
Ohio 43219, for Plaintiff-Appellant and
Atty. Steven M. Loewengart, Fisher & Phillips, LLP, 250 West Street, Suite 400,
Columbus, Ohio 43215, and Atty. Curtis G. Moore, Fisher & Phillips, LLP, 227 West
Trade Street, Suite 2020, Charlotte, North Carolina 28202, for Defendant-Appellee.
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Dated: November 18, 2021
D’Apolito, J.
{¶1} Appellant, Debra J. Cunningham, appeals from the January 7, 2021
judgment of the Belmont County Court of Common Pleas granting Appellee’s, Perry &
Associates, CPAs, A.C., motion for summary judgment following a hearing. On appeal,
Appellant argues the trial court erred in granting Appellee’s motion for summary judgment
on her age discrimination claim. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellee is a West Virginia corporation which has locations in multiple
states, including Ohio. Appellee is a full-service accounting firm providing tax, auditing,
and business services to both private and government entities. Appellant is a female over
the age of 40. Since 2003, Appellant has owned Evergreen Business Strategies, Inc.
(“Evergreen”) which specializes in assisting businesses in development, marketing, and
other related areas.
{¶3} In February 2016, Appellee hired Evergreen and Appellant worked as a
consultant on a contract basis. In May 2017, Appellee hired Appellant in a full-time
management capacity as its Marketing Director. During her employment, Appellant was
approximately 60 years old and was paid an annual salary of $48,000. Appellant reported
directly to Jodey Altier (“Altier”), Appellee’s owner, President, and Managing Partner.
{¶4} In August 2017, Appellant received a 90-day review and did not receive a
raise. Appellant discussed the matter with Altier. At that time, Altier gave Appellant the
choice of either an immediate $5,000 bonus or a $5,000 increase in her annual salary.
Appellant chose the latter.
{¶5} In February 2018, Appellant claimed she received a pay stub via email,
allegedly from the payroll department, indicating a bonus payment of $5,000. In June
2018, Altier performed a yearly review of Appellant and gave her a verbal rating. In
December 2018, Appellant said she discovered that the $5,000 bonus had not been
deposited into her bank account. Appellant discussed the matter with Scott Woods
Case No. 21 BE 0007
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(“Woods”), Appellee’s Business Director. Woods indicated the check stub was not from
Appellee.
{¶6} Appellee subsequently decided to eliminate its Marketing Director position.
On March 1, 2019, Appellee terminated Appellant’s employment. According to Altier,
Appellee eliminated the position because it determined that the cost of the Marketing
Director’s salary and benefits outweighed the marketing results Appellee realized during
Appellant’s employment. During this time-frame, Appellee’s Cambridge, Ohio office was
losing money. Appellee ended up outsourcing its digital and social media marketing and
redistributing the remainder of Appellant’s job functions among its existing employees.
{¶7} On August 5, 2019, Appellant filed a complaint against Appellee alleging
gender and age discrimination under R.C. Chapter 4112.02 due to her employment being
terminated.1 Appellee filed an answer.
{¶8} On October 23, 2020, Appellee filed a motion for summary judgment.
Appellant filed a response in opposition. Appellee filed a reply.
{¶9} Appellant testified during her deposition that she believed Appellee
intended to hire Jason Rollins (“Rollins”), a male that was 20 years her junior, to perform
some of the duties she performed, or to do something similar to what she did. Appellant
later attempted to change her deposition testimony by submitting an affidavit averring that
she was told that she would be replaced by Rollins.
{¶10} Rollins was never hired by Appellee for any position subsequent to
Appellant’s termination.2 Rollins previously worked for Appellee from January 2018 to
May 2018. Rollins left Appellee for a position at WesBanco almost one year before
Appellee eliminated Appellant’s position.
{¶11} Following a December 22, 2020 hearing, the trial court struck Appellant’s
affidavit from the record and from consideration because of the apparent contradiction
1 On appeal, Appellant only challenges her age discrimination claim.
2 Appellant concedes this point in her brief: (“[T]here is no dispute that Rollins was not ultimately hired.”)
(5/7/2021 Appellant’s Brief, p. 8).
Case No. 21 BE 0007
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with her deposition testimony3; found there is no genuine issue of material fact; held that
Appellant failed to prove a prima facie case of age discrimination; determined there was
no pretextual reason for the termination; and concluded that Appellee is entitled to
judgment as a matter of law.
{¶12} On January 7, 2021, the trial court filed an entry granting Appellee’s motion
for summary judgment and dismissed Appellant’s claims with prejudice. Appellant filed a
timely appeal and raises one assignment of error.
ASSIGNMENT OF ERROR
THE COMMON PLEAS COURT COMMITTED REVERSIBLE ERROR
WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF PERRY &
ASSOCIATES CPAS, A.C. (“PERRY”) ON MS. CUNNINGHAM’S AGE
DISCRIMINATION CLAIM UNDER R.C. 4112 (JANUARY 7, 2021 ORDER
AND ENTRY GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (“JANUARY 7TH ORDER”), P. 1).
{¶13} In her sole assignment of error, Appellant argues the trial court erred in
granting Appellee’s motion for summary judgment.
An appellate court conducts a de novo review of a trial court’s decision to
grant summary judgment, using the same standards as the trial court set
forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,
671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial
court must determine that: (1) no genuine issue as to any material fact
remains to be litigated, (2) the moving party is entitled to judgment as a
matter of law, (3) it appears from the evidence that reasonable minds can
3Appellant did not appeal that judgment nor does she list the trial court’s decision to strike her affidavit as
an assignment of error or issue in this appeal. The trial court concluded from the evidence that Appellant’s
affidavit contradicted her former deposition testimony without sufficient explanation. See Byrd v. Smith,
110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 28 (“an affidavit of a party opposing summary judgment that
contradicts former deposition testimony of that party may not, without sufficient explanation, create a
genuine issue of material fact to defeat a motion for summary judgment.”)
Case No. 21 BE 0007
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come to but one conclusion, and viewing the evidence most favorably in
favor of the party against whom the motion for summary judgment is made,
the conclusion is adverse to that party. Temple v. Wean United, Inc., 50
Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material”
depends on the substantive law of the claim being litigated. Hoyt, Inc. v.
Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th
Dist.1995).
“(T)he moving party bears the initial responsibility of informing the trial court
of the basis for the motion, and identifying those portions of the record which
demonstrate the absence of a genuine issue of fact on a material element
of the nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75
Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its
burden, the nonmoving party has a reciprocal burden of setting forth specific
facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d
264. In other words, when presented with a properly supported motion for
summary judgment, the nonmoving party must produce some evidence to
suggest that a reasonable factfinder could rule in that party’s favor. Brewer
v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th
Dist.1997).
The evidentiary materials to support a motion for summary judgment are
listed in Civ.R. 56(C) and include the pleadings, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence, and
written stipulations of fact that have been filed in the case. In resolving the
motion, the court views the evidence in a light most favorable to the
nonmoving party. Temple, 50 Ohio St.2d at 327, 364 N.E.2d 267.
Doe v. Skaggs, 7th Dist. Belmont No. 18 BE 0005, 2018-Ohio-5402, ¶ 10-12.
{¶14} Appellant’s argument involves an age discrimination claim under R.C.
Chapter 4112. R.C. 4112.02, “Unlawful discriminatory practices,” states in part:
It shall be an unlawful discriminatory practice:
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(A) For any employer, because of the race, color, religion, sex, military
status, national origin, disability, age, or ancestry 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).
Under Ohio law, a plaintiff may make a prima facie case of age
discrimination in one of two ways. First, a plaintiff may use direct evidence
of age discrimination which tends to show by a preponderance that the
employer was motivated by discriminatory intent in discharging the
employee. Mauzy v. Kelly Services, Inc. (1996), 75 Ohio St.3d 578, 664
N.E.2d 1272. Second, a plaintiff may use indirect evidence by satisfying the
four-part analysis provided by Barker v. Scovill (1983), 6 Ohio St.3d 146,
451 N.E.2d 807, which stems from the United States Supreme Court’s
decision in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668. A defendant-employer may then overcome the
presumption inherent in the prima facie case by propounding a legitimate,
nondiscriminatory reason for the plaintiff’s discharge. Id. Finally, the plaintiff
must be allowed to show that the rationale set forth by the employer was
only a pretext for unlawful discrimination. Id.Conway v. Paisley House, 7th Dist. Mahoning No. 02CA135, 2003-Ohio-4609, ¶ 8.
{¶15} Appellant does not claim that there is direct evidence of age discrimination.
In order to establish a prima facie case based on indirect evidence, the Barker analysis
requires a plaintiff to show the following: (1) that she was a member of the statutorily
protected class; (2) that she was discharged; (3) that she was qualified for the position;
and (4) that she was replaced by, or the discharge permitted the retention of, a person of
substantially younger age. Barker, supra, at paragraph one of the syllabus; Potts v. Cath.
Diocese of Youngstown, 159 Ohio App.3d 315, 321, 2004-Ohio-6816, ¶ 18, 823 N.E.2d
Case No. 21 BE 0007
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917, 922 (7th Dist.2004), citing Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175,
2004-Ohio-723, 803 N.E.2d 781, paragraph one of the syllabus.
{¶16} The record reveals Appellant is over 40 years old, her employment was
terminated, and she was qualified for the position. Thus, Appellant meets the first three
prongs under Barker. At issue here is the fourth prong, i.e., whether Appellant was
replaced by, or the discharge permitted the retention of, a person of substantially younger
age. The trial court, basing its decision that Appellant had not demonstrated a prima facie
case of age and gender discrimination on its determination that she was not replaced,
stated:
Plaintiff has failed to set forth a genuine issue of material fact as to the fourth
prong of her prima facie case – that she was replaced by a person not
belonging to her protected classes. Defendant presented evidence in its
MSJ, Reply in Support, and at oral argument, that it eliminated Plaintiff’s
Director of Marketing Position and that Plaintiff’s former duties were spread
among existing employees and/or were outsourced. * * * Plaintiff set forth
no evidence to demonstrate that she was ever replaced by anyone – let
alone Mr. Rollins. * * *
Instead, Plaintiff attempts to generate an issue of fact by arguing that Jodey
Altier, Defendant’s President, told Plaintiff that Defendant intended to hire
Jason Rollins to perform some of Plaintiff’s former duties. Indeed, Plaintiff
expressly denied during her deposition that Ms. Altier expressed an
intention that Mr. Rollins would replace Plaintiff or perform all of Plaintiff’s
former duties. * * *
Taking these facts in [a] light most favorable to Plaintiff, as this Court must
do, Plaintiff still fails to demonstrate the fourth prong of her prima facie case
because Plaintiff cannot demonstrate she was replaced by anyone. Indeed,
she cannot even demonstrate an intention by Perry to replace her with
anyone given that Plaintiff alleges Ms. Altier only ever expressed that Mr.
Rollins might perform some of her former duties if he was ever rehired.* * *
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As such, there is no genuine issue of material fact that Plaintiff has failed to
demonstrate the fourth prong of her prima facie case of age and sex/gender
discrimination. Therefore, Defendant is entitled to judgment as a matter of
law as to those claims.
***
Here, even if Plaintiff could demonstrate her prima facie case – which she
cannot – she has failed to set forth any evidence to create a triable issue of
fact that Defendant’s stated reasons for her termination are pretext for
discrimination.
Defendant has set forth the legitimate non-discriminatory reason that it
eliminated Plaintiff’s position because it determined that the benefit of
Plaintiff’s marketing efforts did not outweigh the cost of Plaintiff’s
compensation and benefits, and that it was prudent to eliminate Plaintiff’s
position and to outsource and reallocate her duties. * * * This decision was
made at a time when Defendant’s Cambridge, Ohio office was losing
money. * * *
Plaintiff does not dispute that her position was eliminated. * * * Moreover,
Plaintiff concedes she was never actually replaced by Mr. Rollins. * * *
Plaintiff also offered no evidence to refute Defendant’s proffered reasons
for the elimination of her position or the status of Defendant’s overall
business. * * *
As such, Plaintiff has failed to demonstrate Defendant’s stated legitimate
non-discriminatory reason for the elimination of her position is mere pretext
for discrimination. Defendant is entitled to judgment as a matter of law.
(1/7/2021 Judgment Entry, p. 5-8).
{¶17} As stated, Appellant does not contend that she was replaced by Rollins, as
it is undisputed that Rollins was never hired by Appellee for any position following
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Appellant’s termination. Rather, it is Appellant’s contention that at the time she was
terminated, she believed it was Appellee’s intention to replace her with Rollins, a
substantially younger person, thereby amounting to age discrimination. Appellant
contends “the trial court ignored the fact that it was [her] belief that she was going to be
replaced by Rollins[.]” (5/7/2021 Appellant’s Brief, p. 9). Appellant stresses that the law
requiring replacement “should be changed, or at the very least expanded[.]” (6/7/21
Appellant’s Reply Brief, p. 2). We disagree.
{¶18} Contrary to Appellant’s position, the record reveals the trial court ignored
nothing and Appellant’s argument goes against federal, Ohio Supreme Court, and this
court’s precedent which requires an employee to demonstrate she was actually replaced.
McDonnell Douglas, supra; Barker, supra; Ryncarz v. Belmont Co. Ct. of Common Pleas
Juvenile Ct. Div., 7th Dist. Belmont No. 16 BE 0017, 2017-Ohio-4423, ¶ 12 (“The
threshold matter here is whether Appellant established that she was replaced by a person
of a substantially younger age. In order to meet her burden, Appellant is required to
provide proof of this element of her claim.”) An intent by an employer for another
employee to assume only some duties does not constitute replacement. Id. As the trial
court struck Appellant’s contradictory affidavit from the record, there is no evidence to
even support her novel theory regarding replacement.
{¶19} The record further establishes that even if Appellant could demonstrate a
prima facie case of age discrimination, she fails to show that Appellee’s proffered reason
for the termination is a pretext. Appellant admitted during her deposition that Altier
informed her that her position was being eliminated. Appellant’s admission supports
Appellee’s proffered reason that Appellant’s position was eliminated because Appellee
determined it no longer needed an in-house Marketing Director. Altier indicated that the
costs associated with the in-house position outweighed its benefits and that at the time
she made the decision, Appellee’s Cambridge, Ohio office was losing money. Appellant
provided no evidence to the contrary.
{¶20} Upon consideration, Appellee is entitled to summary judgment because
there is no genuine issue of material fact that Appellant was replaced by someone
substantially younger than her. Therefore, Appellant failed to demonstrate the fourth
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prong of her prima facie case of age discrimination. Accordingly, the trial court properly
granted Appellee’s motion for summary judgment.
CONCLUSION
{¶21} For the foregoing reasons, Appellant’s sole assignment of error is not well-
taken. The judgment of the Belmont County Court of Common Pleas granting Appellee’s
motion for summary judgment is affirmed.
Donofrio, P.J., concurs.
Robb, J., concurs.
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For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 BE 0007