Putney v. Contract Bldg. Components , 2009 Ohio 6718 ( 2009 )

[Cite as Putney v. Contract Bldg. Components, 2009-Ohio-6718.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
SHARON PUTNEY,
PLAINTIFF-APPELLANT, CASE NO. 14-09-21
v.
CONTRACT BUILDING
COMPONENTS, ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Union County Common Pleas Court
Trial Court No. 08-CV-0402
Judgment Affirmed
Date of Decision: December 21, 2009
APPEARANCES:
Judith E. Galeano and Merl H. Wayman for Appellant
Susan C. Rogers and Amanda L. Walls for Appellees
Case No. 14-09-21
SHAW, J.
{¶1} Plaintiff-appellant, Sharon Putney (hereinafter “Putney”), appeals
the June 17, 2009 judgment of the Common Pleas Court of Union County, Ohio,
granting summary judgment in favor of the defendants-appellees, Contract
Building Components, Ltd. (hereinafter “CBC”), and Stark Truss Company, Inc.
(hereinafter “Stark Truss”), and dismissing her complaint.
{¶2} The facts relevant to this appeal are as follows. CBC is a
manufacturer of building components. Stark Truss operates CBC. Putney began
working at CBC’s Marysville, Ohio, plant in May of 2002, through Stark.1
Putney’s title was that of office manager. As office manager, Putney was
responsible for day-to-day administrative matters, such as maintaining the lumber
summary and inventory, coordinating personnel data and documents, recording
trucking logs, and managing the billing by gathering invoices, submitting them for
payment approval to the plant manager, Jeff Coulter,2 who was also her direct
supervisor, and then assuring they were paid. Putney was not responsible for any
aspect of production, and she did not serve in a supervisory position.
{¶3} Shortly after her employment began, problems arose with her
performance. For the next few years, Putney received multiple disciplinary
actions in the form of written notices and poor performance reviews from Coulter.
1
Stark Truss also operates another facility in Washington Courthouse, Ohio.
2
Coulter is also the plant manager for Stark Truss’ Washington Courthouse facility.
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Many of the critiques of her performance revolved around her inaccurate record
keeping and problems with properly invoicing. By June 29, 2005, Putney’s
performance review reflected a below average performance in every category of
review from attendance to communication to teamwork. In this review, Coulter
noted that he had to remind Putney to do tasks and then had to check to see if she
actually did the tasks. Coulter also noted that Putney was continuing to make
mistakes in her record keeping and not properly invoicing, including failing to
invoice $37,000.00 worth of product.
{¶4} On September 13, 2006, Putney received another written
disciplinary notice from Coulter. This notice stated: “On Thursday 9-7-06 I
received 2 invoices from Sharon for approval that did not have our purchase order
with it. I have asked Sharon for years now to make sure this happens and she fails
to follow instructions. Poor performance will no longer be tolerated!” This notice
also provided that the consequence, should the incident be repeated, would
possibly be a three-day suspension.
{¶5} Two days later, Putney sent a letter to Mike Dyer, the director of
human resources for Stark Truss, alleging harassment of her by Coulter. In this
letter, Putney cited several things that Coulter had said to her to demonstrate what
she perceived to be a hostile work environment. She further alleged that Coulter’s
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statements and actions were gender-based and that she feared retaliation. Dyer
gave this letter to Alice Wehrlin, nka Alice Mize, for investigation.
{¶6} After speaking with Putney and investigating the complaint, Wehrlin
determined that the claim was meritless and that the comments by Coulter about
Putney’s performance were due to her below average performance. As a result,
Wehrlin offered Putney two hours of additional training with Darlene Merritt,
Putney’s counterpart at Stark Truss’ facility in Washington Courthouse, Ohio.
Wehrlin also requested that Putney provide her with copies of any company
documents relating to other employees that Putney admittedly made. In addition,
Wehrlin began working with Coulter to ensure that there was no retaliation for
Putney’s actions and that any disciplinary action taken against Putney in the future
would be for job performance-related issues only.
{¶7} Putney did not seek additional training from Darlene Merritt. On
October 6, 2006, Wehrlin advised Coulter to issue Putney a three-day disciplinary
suspension for failing to perform two basic requirements of her job as office
manager, including failing to ensure that CBC was invoiced for what it ordered,
failing to ensure that CBC received the shipment in full, and failing to include the
order form, the purchase order, and the bill of lading for the order when she
submitted the invoice to Coulter. Attached to the written notice of her suspension
was an invoice from a company called “Mitek” to a company called “84 Lumber”
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not CBC and/or Stark Truss, as well as e-mail communications between Coulter
and Putney regarding her work.
{¶8} The written notice of suspension also noted that Coulter was paying
another person “to double check [Putney’s] work to avoid the costly consequences
of her unsatisfactory work. Sharon needs to focus only on her job and stop
focusing on everyone else.” Further, the stated consequence, should this incident
be repeated, was “discipline up to and including termination.” Putney was also
notified that upon returning to work from this suspension that she would be on
probation for sixty days and that if she failed or refused “to make significant
improvements, [CBC] reserve[d] the right of immediate termination.”
{¶9} On October 11, 2006, Putney wrote another letter to Mike Dyer.
This time the letter expressed disagreement with her suspension and with the
conclusion reached by Wehrlin regarding her allegations of a hostile work
environment. Putney also included in this letter that the “hostile work
environment has escalated since my complaint in March, 2006, to OSHA for
health/safety hazards that were reported due to diesel powered forklifts being used
in an unventilated building at Contract Building Components.” In addition,
Putney attached the documents regarding other employees that Wehrlin had
previously requested that she turn over. Putney asserted that these documents
supported her position that she was unable to perform her job in a timely and
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competent manner because other people at CBC were failing to provide her with
the paperwork and information that she needed to complete her tasks.
{¶10} Once again, Wehrlin addressed Putney’s complaint and informed
Putney that her allegations were unfounded. This time Wehrlin specifically
addressed the documents Putney attached in support of the hostile work
environment claim and explained why she did not find that they supported
Putney’s claims. Further, Wehrlin informed Putney that Stark Truss was unaware
that Putney was the one who reported the company to the Occupational Safety and
Health Administration (“OSHA”) because OSHA does not reveal this type of
information.
{¶11} Upon returning from her suspension, Putney received additional
training from Darlene Merritt and her performance appeared to improve during her
probationary period. However, after her probationary period ended, Putney began
having problems once again. On February 2, 2007, Putney’s employment was
terminated. The written notice of this termination stated that Putney had failed to
make a significant improvement in her performance and continued to submit
invoices without the necessary documentation, continued to inaccurately maintain
inventory records, and continued to conduct non-job-related activities despite
being told to cease such behavior.
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{¶12} On August 5, 2008, Putney filed a complaint, naming CBC and
Stark Truss as defendants. The complaint alleged three causes of action against
both defendants: (1) gender discrimination in violation of R.C. 4112 et. seq.; (2)
wrongful termination in violation of public policy; and (3) retaliation for engaging
in protected activity in violation of R.C. 4112.02(I). The defendants filed their
answer to the complaint, and the matter proceeded to discovery. During
discovery, numerous depositions were taken. On January 30, 2009, the defendants
filed a motion for summary judgment. Putney filed a memorandum in opposition
to this motion on February 17, 2009, and the defendants subsequently filed their
reply brief.
{¶13} Thereafter, the trial court granted the defendants’ motion for
summary judgment on May 6, 2009. This judgment was appealed in appellate
case number 14-09-20, but this Court dismissed this appeal on June 17, 2009, for
want of jurisdiction because the complaint was not dismissed pursuant to the grant
of summary judgment. That same day, the trial court issued an entry both granting
summary judgment in favor of the defendants and dismissing Putney’s complaint.
{¶14} This appeal followed, and Putney now asserts four assignments of
error.
FIRST ASSIGNMENT OF ERROR
THE LOWER COURT ERRED BY CONCLUDING THAT
APPELLANT FAILED TO ESTABLISH A PRIMA FACIE
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CASE OF GENDER DISCRIMINATION IN VIOLATION OF
R.C. 4112.02(A).
SECOND ASSIGNMENT OF ERROR
THE LOWER COURT ERRED BY CONCLUDING THAT
APPELLANT FAILED TO ESTABLISH A PRIMA FACIE
CASE OF RETALIATION IN VIOLATION OF R.C.
4112.02(I).
THIRD ASSIGNMENT OF ERROR
THE LOWER COURT IMPROPERLY GRANTED
SUMMARY JUDGMENT ON APPELLANT’S GENDER
DISCRIMINATION AND RETALIATION CLAIMS ON AN
ISSUE THAT WAS NEVER RAISED IN APPELLEE’S
MOTION FOR SUMMARY JUDGMENT.
FOURTH ASSIGNMENT OF ERROR
THE LOWER COURT ERRED BY CONCLUDING THAT
APPELLANT DID NOT MAKE OUT A PRIMA FACIE CASE
OF WRONGFUL TERMINATION IN VIOLATION OF
PUBLIC POLICY.
Summary Judgment Standard
{¶15} Each of Putney’s four assignments of error challenges the trial
court’s decision to grant summary judgment in favor of the defendants. An
appellate court reviews a grant of summary judgment independently, without any
deference to the trial court. Conley-Slowinski v. Superior Spinning & Stamping
Co. (1998), 128 Ohio App.3d 360, 363, 714 N.E.2d 991. The standard of review
for a grant of summary judgment is de novo. Hasenfratz v. Warnement, 3rd Dist.
No. 1-06-03, 2006-Ohio-2797, citing Lorain Nat’l. Bank v. Saratoga Apts. (1989),
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61 Ohio App.3d 127, 572 N.E.2d 198. A grant of summary judgment will be
affirmed only when the requirements of Civ.R. 56(C) are met. This requires the
moving party to establish: (1) that there are no genuine issues of 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 non-moving party, said party being entitled to have the evidence construed
most strongly in his favor. Civ.R. 56(C); see Horton v. Harwick Chem. Corp., 73
Ohio St.3d 679, 653 N.E.2d 1196, 1995-Ohio-286, paragraph three of the syllabus.
{¶16} The party moving for summary judgment bears the initial burden of
identifying the basis for its motion in order to allow the opposing party a
“meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d
112, 526 N.E.2d 798, syllabus. The moving party also bears the burden of
demonstrating the absence of a genuine issue of material fact as to an essential
element of the case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264,
1996-Ohio-107. Once the moving party demonstrates that he is entitled to
summary judgment, the burden shifts to the non-moving party to produce evidence
on any issue which that party bears the burden of production at trial. See Civ.R.
56(E). In ruling on a summary judgment motion, a court is not permitted to weigh
evidence or choose among reasonable inferences, rather, the court must evaluate
evidence, taking all permissible inferences and resolving questions of credibility in
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favor of the non-moving party. Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7,
663 N.E.2d 653. Thus, it is within these constructs that we address each of
Putney’s assignments of error.
{¶17} For ease of discussion, we elect to first address the third assignment
of error.
Third Assignment of Error
{¶18} Putney’s third assignment of error involves the trial court’s
determination that summary judgment was proper as to the gender-discrimination
and retaliation claims against CBC and Stark Truss because the defendants
articulated a legitimate, non-discriminatory reason for terminating her. However,
Putney asserts that the defendants did not raise this as a basis for summary
judgment in their motion, and, therefore, she was not provided a meaningful
opportunity to address this issue.
{¶19} Putney correctly indicates, as stated in the aforementioned summary
judgment standard, that “[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, 38 Ohio St.3d at
syllabus; see also, State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty.,
121 Ohio St.3d 507, 905 N.E.2d 1192, 2009 -Ohio- 1523, at ¶¶ 26-27. However,
Putney fails to acknowledge the repeated assertions by CBC and Stark Truss in
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their motion for summary judgment that Putney was disciplined and her
employment terminated because of her poor performance.
{¶20} On page two of their motion, entitled “Introduction”, the defendants
stated: “Beginning with a mediocre performance review in the year 2003,
Putney’s performance steadily deteriorated while incidents of Putney’s mistakes
and missed deadlines mounted until these persistent, documented, and uncorrected
performance issues culminated in the termination of her employment in February
of 2007.” On page four of this motion, the defendants stated: “All employment
actions Stark Truss took with respect to Putney were for legitimate, non-
discriminatory business reasons and were based upon her record of performance
deficiencies, not her gender[.]” The defendants then delineated Putney’s history
of unsatisfactory performance and the actions taken by Coulter in the portion of
their motion entitled, “Factual Background”, and further asserted that Putney was
terminated because she did not adequately fulfill her duties with her employer.
(Mot. for Sum. Judg., p. 10.)
{¶21} Under the “Law & Argument” section of their motion, CBC and
Stark Truss stated at the beginning of the portion of the motion regarding Putney’s
gender-discrimination claim that “Stark Truss and CBC disciplined and ultimately
terminated the employment of Putney because of her persistent refusal or inability
to perform the requirements of the position of Office Manager, not because she is
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a female.” (id. at p. 11.) At the beginning of their discussion of Putney’s
retaliation claim, the defendants stated: “Stark Truss and CBC disciplined and
ultimately terminated Putney from employment because of her well-documented
and uncorrected performance issues (which pre-dated her participation in any
activity protected under Ohio Revised Code (‘ORC’) §4112.02(I) and persisted
even after her alleged participation occurred), not in retaliation for her
participation in activity protected by law.” (id. at p. 16.) This same assertion was
repeated in the portion of the defendants’ motion regarding Putney’s claim for
unlawful termination in violation of public policy based upon the report she made
to OSHA. (id. at p. 18.) Further, under this portion, CBC and Stark Truss
specifically stated: “As has been thoroughly explained throughout this
memorandum, Putney’s employment was terminated due to her persistent,
documented, and uncorrected job performance issues.” (id. at p. 22.)
{¶22} In addition to the multitude of statements by CBC and Stark Truss as
to the reason for Putney’s disciplines and termination, the defendants also attached
to their motion, as did Putney in her response to this motion, numerous documents
evidencing Coulter’s dissatisfaction with Putney’s performance, illustrating where
the problems were and explaining the future consequences.
{¶23} In sum, throughout the motion for summary judgment the defendants
made it abundantly clear that summary judgment in their favor was proper
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because, inter alia, they had a legitimate, non-discriminatory and non-retaliatory
reason for terminating her. Thus, Putney’s assertion in this regard is without
merit, and the third assignment of error is overruled.
First Assignment of Error
{¶24} In her first assignment of error, Putney maintains that the trial court
erred in granting summary judgment in favor of the defendants on her claim of
gender discrimination. Revised Code section 4112.02 provides in relevant part:
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.
The Ohio Supreme Court has stated that state courts may apply “federal case law
interpreting Title VII of the Civil Rights Act of 1964 * * * to cases involving
alleged violations of R.C. Chapter 4112.” Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civil Rights Comm., et al. (1981), 66 Ohio St.2d
192, 196, 421 N.E.2d 128. Therefore, this Court may look to federal case law in
addition to state law to determine resolution of this matter.
{¶25} The United States Supreme Court has held that in order “[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
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employment action; and (4) replacement by a non-protected person.” McDonnell
Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817. 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).3 Under this element, a 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 non-
minority employees.” Id. at 582-83.
{¶26} Once a plaintiff establishes his/her prima facie case, the burden then
shifts to the employer to articulate a legitimate, nondiscriminatory reason for the
adverse employment action. Texas Dept. of Comm. Affairs v. Burdine (1981), 450
U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94. “[S]hould the defendant carry this
burden, 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.” Id.{¶27} Here, there is no dispute that Putney was a member of the protected
class, as a female, or that she suffered an adverse employment action, specifically
3
Putney could have alternatively established her prima facie case by presenting credible, direct evidence of
discriminatory intent. See Terbovitz v. Fiscal Court of Adair County, Ky. (C.A. 6, 1987), 825 F.2d 111.
However, she acknowledges that she does not have any such direct evidence and, therefore, we proceed
solely with the application of the McDonnell Douglas/Burdine formula.
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that her employment was terminated. In addition, Putney does not dispute that she
was replaced by another member of the protected class, as Darlene Merritt, a
female, absorbed Putney’s duties as office manager for the Marysville location.
The parties’ dispute lies in the two remaining elements: (1) that Putney was
qualified for the position and (2) that a comparable non-protected person was
treated better.
{¶28} When evaluating a plaintiff’s prima facie burden of showing that she
was qualified for the position, the United States Sixth Circuit Court of Appeals has
held:
a court should focus on a plaintiff’s objective qualifications to
determine whether he or she is qualified for the relevant job. See
Aka v. Washington Hosp. Ctr. (D.C.Cir., 1998), 156 F.3d 1284,
1298 (en banc) (noting that “courts traditionally treat
explanations that rely heavily on subjective considerations with
caution,” and that “an employer’s asserted strong reliance on
subjective feelings about the candidates may mask
discrimination”); MacDonald v. E. Wyo. Mental Health Ctr.
(C.A.10, 1991), 941 F.2d 1115, 1121 (holding that a plaintiff can
show that she is qualified by presenting “credible evidence that
she continued to possess the objective qualifications she held
when she was hired”). The prima facie burden of showing that a
plaintiff is qualified can therefore be met by presenting credible
evidence that his or her qualifications are at least equivalent to
the minimum objective criteria required for employment in the
relevant field. Although the specific qualifications will vary
depending on the job in question, the inquiry should focus on
criteria such as the plaintiff's education, experience in the
relevant industry, and demonstrated possession of the required
general skills. (Emphasis omitted.)
Wexler v. White’s Fine Furniture, Inc. (C.A.6, 2003), 317 F.3d 564, 575-76.
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{¶29} Stark Truss and CBC assert that Putney was not qualified for the
position of office manager because her poor performance over the years
demonstrated that she was not qualified for the job. However, Wexler requires
that we consider only the objective criteria for the position rather than the
employer’s subjective evaluations, which are more properly examined in
determining whether the employer has provided a legitimate, non-discriminatory
reason for termination and whether such reason is a mere pre-text.
{¶30} In examining whether Putney was qualified for the position, the
evidence before the trial court is devoid of what objective criteria were necessary
for Putney’s employment as an office manager, such as education, training, etc.
However, in the documentation submitted by Stark Truss in its motion for
summary judgment, Coulter and Darlene Merritt provided statements that Putney
was qualified to perform as the office manager. Specifically, in Merritt’s affidavit,
she stated that she provided training to Putney on several occasions and “felt that
Sharon Putney was capable of performing the requirements of the position of
Office Manager but lacked interest or motivation in the job.” (Emphasis added.)
(Merritt Aff. at ¶ 7.) Additionally, in Coulter’s February 2, 2007, written notice of
Putney’s termination, he wrote: “While [Putney] did make some improvement
during her probationary period she has reverted back to her poor performance
which demonstrates that Sharon has the ability to do the job but chooses not to do
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so.” (Emphasis added.) Given these statements by the two people in Stark Truss’
employ who were in the best position to determine Putney’s qualifications and in
construing the evidence in a light most favorable to Putney, we find that Putney
has satisfied her prima facie burden as to this element.
{¶31} The next consideration is whether for the same or similar conduct,
Putney was treated differently than similarly-situated male employees. The 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.’” Ercegovich v. Goodyear Tire & Rubber Co. (C.A. 6, 1998), 154
F.3d 344, 352, quoting Mitchell, 964 F.2d at 583.
{¶32} The court in Ercegovich, however, cautioned courts in future cases
“that the specific factors discussed in Mitchell are relevant factors in cases arising
under different circumstances, but [courts] should make an independent
determination as to the relevancy of a particular aspect of the plaintiff’s
employment status and that of the non-protected employee.” Id. Accordingly, a
plaintiff “need not demonstrate an exact correlation with the employee receiving
more favorable treatment in order for the two to be considered ‘similarly-situated;’
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rather, * * * [they] must be similar in ‘all of the relevant aspects.’” Id., quoting
Pierce v. Commonwealth Life Ins. Co. (C.A.6, 1994), 40 F.3d 796, 802. Such a
standard protects those employees who occupy “unique” positions, who would
otherwise be unable to show work-place discrimination, “save in those rare cases
where the plaintiff produces direct evidence of discrimination.” Ercegovich, 154
F.3d at 353.
{¶33} In this case, Putney asserts that she had a unique position at CBC.
Thus, she bases her gender-discrimination claim on the more favorable treatment
she alleges that her similarly-situated male co-workers received. We find her
argument is flawed in two respects. First, while her position as office manager
was unique at the CBC facility in Marysville, it was not a unique position for Stark
Truss. In fact, on more than one occasion, Putney was provided training through
Darlene Merritt. As previously noted, Merritt was Stark Truss’ office manager for
its Washington Courthouse facility. Merritt had the same responsibilities as
Putney, simply at another location. Putney acknowledges that Coulter repeatedly
compared her to Merritt, asked her why she could not perform in the same manner
as Merritt, and referred her to Merritt for additional training. When confronted by
Coulter in this regard, the only dissimilarity Putney could articulate was that
Merritt had been the office manager for a longer period of time. Thus, Putney is
not in that line of plaintiffs who are in a “unique” position and must find a
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similarly-situated employee who is not a member of the minority class. Rather,
Putney has a direct comparison, Merritt, who is a member of the same protected
class as Putney, a female. As such, Putney cannot make a prima facie case as to
the fourth element of a gender-discrimination claim.
{¶34} Second, even assuming arguendo that Putney is in a unique position,
Putney cannot demonstrate that a similarly-situated male was treated more
favorably than she. Although Putney attempts to demonstrate that she is similarly-
situated to a few of the male employees at CBC because she and these men were
considered “key” employees at CBC, simply labeling an employee as a “key
employee” does not render that person similarly-situated. In fact, Putney stated in
her deposition that “[n]obody else did the same responsibilities[.]” (S. Putney
Depo., p. 70.)
{¶35} Putney’s supervisor was Coulter, the plant manager. The evidence
demonstrates that the only other people who directly reported to Coulter were Bill
Pressler and Doug Irvine. However, Pressler, as production manager, was a
supervisor responsible for the production aspect of the business, and Doug Irvine
was a truss technician, a position also related to the production aspect of the
business. Putney, on the other hand, was responsible for purely administrative
matters, and her performance in no way affected production. Additionally, she did
not have any supervisory authority. Although Pressler was responsible for some
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of the paperwork that Putney needed regarding employee hours and driver
mileage, the responsibility for this paperwork was his only similarity to Putney.
Clearly, other than all three holding important positions in the company, i.e. “key
positions”, Pressler’s and Irvine’s positions in the company were not similar to
Putney’s in any relevant aspects.
{¶36} Further, there was no evidence that Pressler or Irvine were
performing the various aspects of their jobs in an unsatisfactory manner, other
than Pressler submitting paperwork on occasion that omitted some information
from the other workers such as hours and mileage. In fact, there is nothing in the
record, except for one write-up of Pressler for an OSHA violation, that either man
was affecting production or the deliveries of products in a negative manner or that
their performance was below average.
{¶37} Moreover, the type of paperwork Putney claims a number of other
employees were not timely giving to her and for which they were not being
disciplined was but one area of Coulter’s concern of Putney’s performance. As is
the case with her comparisons to Pressler, the type of paperwork that she
maintains that she did not timely and accurately receive was but one aspect of her
administrative function and had little to nothing to do with the majority of her
performance issues. To the contrary, much of the discipline she received,
including her ultimate termination, were for submitting invoices without purchase
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orders, not accurately invoicing items, not ensuring that bills were paid in a timely
fashion, working on personal matters, not keeping her work area clean and
organized, submitting invoices for approval that were actually for other
companies, and neglecting to make required adjustments in her reports. In one
such discipline, Coulter noted that the company’s credit rating was suffering as a
result of mishandled billing by Putney. The record is devoid of any evidence that
the conduct of the male employees with whom Putney compares herself affected
the company’s credit rating or resulted in incorrect invoicing.
{¶38} In addition, Putney submitted discipline records of a number of other
employees to demonstrate her disparate treatment. However, the other employees
involved were all assigned to production and/or shipping, not the office.
Administrative matters, including paperwork, were the crux of Putney’s job.
Production and deliveries of the company’s product were the main responsibilities
of the other people with whom Putney attempts to compare herself. Further, how
these employees were in any way similarly-situated to Putney is not demonstrated
in the record before us.
{¶39} The issues stated in the documentation of these employees’
disciplinary actions were for a variety of things: tardiness, excessive absences, an
employee who repeatedly did not wear his safety glasses, and an employee who
was careless on one occasion and broke a light. Another instance cited by Putney
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was Pressler’s discipline for an OSHA violation of allowing forklifts to be
operated in unventilated areas.
{¶40} Putney also references Dan Kinnison’s treatment by Coulter in
support of her disparate treatment claim. Kinnison, who was the dispatcher for
deliveries and responsible for gathering information from the drivers, received a
write-up for having pornography on his computer. However, Kinnison testified in
his deposition that he disputed his discipline for having pornography because
others had access to his computer. He further testified that there was never
pornography on his computer again. Another employee also testified in his
deposition that Kinnison was found sleeping in his car during working hours.
However, this employee stated that he did not know whether Kinnison was on his
break or not at the time he was found sleeping in the car. Kinnison also appears to
be the person Putney most often had difficulty with in obtaining driver-related
paperwork. Kinnison was not terminated by Stark Truss. Thus, Putney contends
that he received better treatment despite his various issues.
{¶41} Putney was not disciplined for safety concerns, having pornography,
or sleeping on the job. As previously noted, throughout her nearly five years of
employment, Putney was given mostly below average reviews in every category:
attendance, quality commitment, communication, taking initiative, job skills,
housekeeping, teamwork, and customer satisfaction. She was repeatedly told that
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she was the office manager and needed to stay on top of all administrative matters,
including accurately maintaining lumber inventory, logs, and summaries as she
made repeated mistakes in this regard and tracking down the paperwork she
needed when the production and/or shipping employees neglected to provide her
with the necessary documents.
{¶42} Putney also presented evidence, through the deposition testimony of
other company employees, that other employees did not receive any disciplinary
action for making personal phone calls during working hours, using the company
cell phones to place personal calls, using company vehicles for personal business,
and using the Internet for personal reasons during working hours, yet she was
disciplined for handling personal matters during working hours. While others did
admit to engaging in these non-work-related activities, there is nothing in the
record to demonstrate that their work suffered because of these things. In
addition, there is nothing in the record that any of these actions were disruptive,
unlike the discipline Putney received in August of 2006, wherein Coulter noted
that she continuously made and received disruptive calls.
{¶43} Furthermore, Putney’s issues, including these disruptive personal
calls, were all related to the performance of her job. Nothing in the record
illustrates that the issues with other employees had directly affected their
performance, i.e. the actual production and/or shipping of the company’s product.
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On the other hand, Putney’s issues directly affected whether her tasks were
completed, when they were completed, and whether they were completed
accurately. There is also nothing in the record to indicate that anyone else had as
many performance issues as Putney or that these issues, many of which were
isolated, lasted for nearly the entire length of their employment, as was Putney’s.
Thus, Putney cannot make a prima facie case as to the fourth element of her
gender-discrimination claim based upon being treated differently than male
employees for same or similar conduct.
{¶44} However, even assuming arguendo that Putney has satisfied this
element and can establish a prima facie case for gender discrimination, Stark Truss
and CBC have articulated a legitimate, non-discriminatory reason for her
termination, which Putney cannot show is false. As previously noted, throughout
this litigation, including the motion for summary judgment, Stark Truss and CBC
have maintained that Putney was disciplined and ultimately terminated due to her
inability to perform her job in a satisfactory manner, and they have provided
documentation and affidavits to support this position. This is a legitimate, non-
discriminatory reason for her termination.
{¶45} Finally, in her deposition, Putney admitted that she had numerous
performance issues. While she asserts that she could not perform her job because
others were not giving her paperwork in a timely manner and were giving her
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incomplete and/or inaccurate paperwork, as we have discussed at length, this
affected but one portion of her job. This failure by others did not cause Putney to
submit invoices for approval to Coulter for other companies that were mistakenly
sent to CBC, to omit purchase orders for invoices, to have a messy and
disorganized work area, to make and receive disruptive calls, or to have a number
of the other issues that she had. Thus, the record is devoid of any evidence that
the stated reason for her termination was false and that the true reason was because
of her gender.
{¶46} Accordingly, for all of these reasons, Putney’s first assignment of
error is overruled.
Second Assignment of Error
{¶47} In her second assignment of error, Putney contends that the trial
court improperly granted summary judgment in favor of CBC and Stark Truss on
her retaliation claim. Revised Code section 4112.02(I) prohibits retaliation and
states:
It shall be an unlawful discriminatory practice * * * [f]or any
person to discriminate in any manner against any other person
because that person has opposed any unlawful discriminatory
practice defined in this section or because that person has made
a charge, testified, assisted, or participated in any manner in any
investigation, proceeding, or hearing under sections 4112.01 to
4112 .07 of the Revised Code.
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As with gender-discrimination claims, state courts may look to federal case law
regarding cases involving alleged retaliation. Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192,
196, 421 N.E.2d 128.
{¶48} To establish a prima facie case of retaliation, Putney must
demonstrate: “(1) that she engaged in protected activity; (2) that the employer
knew of her exercise of protected rights; (3) that she was the subject of
[materially] adverse employment action; and (4) that there is a causal link between
the protected activity and the adverse employment action.” Price v. Matco Tools,
9th Dist. No. 23583, 2007-Ohio-5116, at ¶ 38, citing Balmer v. HCA, Inc. (C.A.6,
2005), 423 F.3d 606, 614; see also Burlington Northern & Santa Fe Ry. Co. v.
White (2006), 548 U.S. 53, 67-68, 126 S.Ct. 2405 (modifying the third element of
the prima facie case to require a “materially adverse” action rather than an
“adverse employment action”).
{¶49} If Putney can establish “a prima facie case of retaliation, the burden
then shifts to the defendant[s] ‘to articulate a legitimate reason for [their] action.’”
Bennett v. Roadway Express, Inc. (Aug. 1, 2001), 9th Dist. No. 20317, 2001 WL
866261, quoting Chandler v. Empire Chem., Inc., Midwest Rubber Custom Mixing
Div. (1994), 99 Ohio App.3d 396, 402, 650 N.E.2d 950. “If that burden is met, the
burden then shifts back to the plaintiff ‘to show that the articulated reason was
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merely a pretext.’” Bennett, supra, quoting Chandler, 99 Ohio App.3d at 402.
Further, “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.”
St. Mary’s Honor Ctr. v. Hicks (1993), 509 U.S. 502, 515, 113 S.Ct. 2742.
{¶50} Putney’s retaliation claim stems from her September 15, 2006 letter
to Mike Dyer alleging that Coulter had created a hostile work environment in
violation of company policy and discriminated against her because of her gender.
The parties do not dispute that Putney engaged in protected activity, that Coulter
knew of this activity, or that Putney was the subject of an adverse employment
action. Rather, the dispute between the parties is over the element that there must
be a causal link between the protected activity and the adverse employment action.
{¶51} To demonstrate a causal connection between a materially adverse
action, such as suspension or termination, and the exercise of protected rights, “a
plaintiff must proffer evidence sufficient to raise the inference that [the] protected
activity was the likely reason for the adverse action.” Michael v. Caterpillar Fin.
Servs. Corp. (C.A. 6, 2007), 496 F.3d 584, 596, citing Dixon v. Gonzales (C.A. 6,
2007), 481 F.3d 324, 333. In other words, “a plaintiff must produce evidence
which permits the inference that apart from the protected activity, the adverse
action would not have been taken.” Nguyen v. City of Cleveland (C.A.6, 2000),
229 F.3d 559, 563. This determination is made with reference to the surrounding
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circumstances, including “evidence that defendant treated the plaintiff differently
from similarly situated employees or that the adverse action was taken shortly
after the plaintiff's exercise of protected rights[.]” Id.; see also Lindsay v.
Children’s Hospital Medical Center of Akron, 9th Dist. No. 24114, 2009-Ohio-
1216, at ¶ 13.
{¶52} Generally, mere temporal proximity between a protected activity and
a materially adverse action without other indicia of retaliatory conduct is not
sufficient to establish the causal connection element of a retaliation claim. See
Michael, 496 F.3d at 596; Tuttle v. Metro. Gov’t of Nashville (C.A. 6, 2007), 474
F.3d 307, 321; Little v. BP Exploration & Oil Co. (C.A. 6, 2001), 265 F.3d 357,
363-64; Nguyen, 229 F.3d at 563; Johnson v. University of Cincinnati (C.A. 6,
2000), 215 F.3d 561, 582-83. “[T]his is particularly true when the evidence
demonstrates intervening performance concerns.” Nguyen, 229 F.3d at 566-67,
citing Cooper v. City of North Olmsted (C.A.6, 1986), 795 F.2d 1265, 1272.
{¶53} However, the Sixth Circuit has recently clarified that, in a small
subset of cases, temporal proximity alone may be sufficient to establish causality:
Where 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. But where some time elapses
between when the employer learns of a protected activity and
the subsequent adverse employment action, the employee must
couple temporal proximity with other evidence of retaliatory
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conduct to establish causality. Mickey v. Zeidler Tool & Die Co.
(6th Cir. 2008), 516 F.3d 516, 525 (finding temporal proximity
alone to be sufficient when the defendant fired the plaintiff on
the same day in which it learned that the plaintiff had filed an
EEOC complaint); see also Clark County Sch. Dist. v. Breeden,
532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting
that some cases have “accept[ed] mere temporal proximity
between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality”
but that they have only done so when the temporal proximity is
“very close”); Singfield v. Akron Metro. Hous. Auth., 389 F.3d
555, 563 (6th Cir. 2004) (finding that temporal proximity of
three months was “significant enough to constitute sufficient
evidence of a causal connection for the purpose of satisfying [the
plaintiff’s] burden of demonstrating a prima facie case”);
DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004) (“[T]his
Circuit has embraced the premise that in certain distinct cases
where temporal proximity between the protected activity and
the adverse employment action is acutely near in time, that close
proximity is deemed indirect evidence such as to permit an
inference of retaliation to arise.”).
Evans v. Prospect Airport Serv., Inc. (C.A. 6, 2008), 286 Fed. Appx. 889, 895.
Nevertheless, “[e]mployers need not suspend previously contemplated
employment actions upon learning of protected activity by the employee.”
Warren v. Ohio Dept. of Pub. Safety (C.A. 6, 2001), 24 Fed. Appx. 259, 266.
{¶54} Here, Putney relies upon temporal proximity alone. Specifically, she
points out that she wrote her letter to Dyer on September 15, 2006, and Wehrlin
and Coulter knew of this shortly thereafter. Three weeks later, on October 6,
2006, she was suspended for three days and placed on probation. Putney contends
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that this constitutes indirect evidence of retaliation to support her prima facie case
as to this element.
{¶55} However, the facts demonstrate that Putney wrote her letter of
September 15th two days after receiving a write-up for submitting two invoices to
Coulter without a purchase order as required. Coulter wrote: “I have asked
Sharon for years now to make sure this happens and she fails to follow
instructions. Poor performance will no longer be tolerated!” (Emphasis added.)
In addition, this evaluation stated that the consequence, if the incident was
repeated, would possibly be a three-day suspension. According to Wehrlin, she
advised Coulter to take disciplinary action against Putney on October 6, 2006,
after Putney committed two serious errors that were basic requirements of her
position and failed to acquire additional training from Merritt, as was offered to
her by Wehrlin in a letter to Putney, dated September 21, 2006, regarding the
results of Wehrlin’s investigation of Putney’s discrimination and hostile work
environment complaint.
{¶56} This time Putney had failed to submit the computer generated order
form, the purchase order, and the bill of lading for an invoice and gave Coulter an
invoice that was for another company, 84 Lumber. As a result, Coulter suspended
Putney and placed her on probation. In this write-up, Coulter noted that he was
paying someone to double check Putney’s work to avoid costly consequences, that
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Putney was not focusing on her job but was focusing on whether everyone else
was doing their job, and she was keeping a log of when she believed others were
not doing their job which resulted in her being unproductive. Putney was warned
that subsequent issues could result in further discipline, including termination.
{¶57} Under these circumstances, which are not in dispute, we do not find
that this case falls within that small subset of cases where temporal proximity
alone may be sufficient to establish causality. Here, Coulter had decided on
September 13, 2006, that further performance failures, particularly submitting
invoices without a purchase order, would result in Putney’s suspension. Thus, he
made an employment decision prior to Putney’s protected activity. This is
distinctly different than the rare cases cited by the Sixth Circuit in Evans, where
temporal proximity alone was sufficient, as the employers in those cases had not
pre-determined a course of action to take with their employees until after the
employee engaged in protected activity.
{¶58} Further, Putney performed poorly for nearly the entire time she was
employed by Stark Truss. Her issues were repeatedly addressed, and her
suspension and subsequent termination were for problems she had for years that
continued despite warnings and progressive discipline. To tie the employer’s
hands in a case such as this where the employee only engaged in protected activity
on the immediate heels of receiving notice that her performance issues would no
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longer be tolerated and would result in suspension is a course this Court will not
take. Nor will this Court allow temporal proximity alone to suffice when the
employee is disciplined/terminated for the same problematic performance he/she
engaged in both prior and subsequent to his/her protected activity without other
indicia that there is a causal link between the protected activity and the adverse
employment action. Thus, Putney cannot satisfy her prima facie burden as to the
causality element.
{¶59} Once again, even assuming arguendo that Putney could establish a
prima facie case, the burden then shifts to the defendants to state a legitimate
reason for her termination. As previously noted in our discussion of the first and
third assignments of error, Stark Truss and CBC have done so, and Putney cannot
show that this reason was pre-textual. Therefore, for all of these reasons, the
second assignment of error is overruled.
Fourth Assignment of Error
{¶60} Lastly, Putney asserts that the trial court erred in granting summary
judgment to the defendants on her claim for wrongful termination in violation of
public policy for filing a complaint with OSHA. In order to establish a claim for
wrongful termination in violation of public policy, Putney must show: (1) a clear
public policy existed and was manifested in a state or federal law (the clarity
element); (2) that dismissing employees under circumstances like those involved
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in Putney’s dismissal would jeopardize the public policy (the jeopardy element);
(3) Putney’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, 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653, 1995-Ohio-135 (citations
omitted).
{¶61} As to this issue, the parties do not dispute the first and second
elements. Rather, Putney asserts that the trial court incorrectly determined that her
termination was not motivated by conduct related to her reporting an OSHA
violation and that CBC and Stark Truss had an overriding legitimate business
justification for her dismissal.
{¶62} In order to demonstrate the causation element, Putney had to show
that her dismissal was motivated by the report she made to OSHA. Thus, she must
first show that the defendants were aware she made a report, when they were
aware, and that their knowledge motivated their actions.
{¶63} The parties do not dispute that a report was made to OSHA in late
March of 2006, regarding the use of gasoline and/or diesel fueled forklifts in
enclosed areas in the building. In her deposition and affidavit, Putney asserted
that Coulter confronted her in April of 2006, about whether she was the one who
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made the report. Although she stated that she told him that she had not made the
call, she claims that Coulter told her, “I don’t believe you.”
{¶64} In an effort to corroborate her claim that Coulter knew that she
contacted OSHA, Putney also points to the deposition of Gerald Spicer, another
CBC employee. Spicer testified that Coulter asked him if he had made the report,
and when he responded that he had not done so, Coulter asked if he “knew maybe
if Sharon had.” Spicer was also asked, “Did Mr. Coulter indicate to you that he
believed Sharon Putney filed the complaint with OSHA?” Spicer responded, “He
didn’t come out and say that she did but he had a feeling maybe she might have.”
When asked what Coulter said that made Spicer believe that Coulter “had a
feeling,” Spicer was unable to articulate what gave him this impression about
Coulter’s feelings.
{¶65} Based on these discussions in April of 2006, Putney maintains that
Coulter, motivated by his knowledge that she was the complainant, began
disciplining her more frequently: on July 25, 2006, August 22, 2006, September
13, 2006 (wherein she was informed that poor performance would no longer be
tolerated), October 6, 2006 (resulting in her three-day suspension), and February
7, 2007 (her termination date). She further asserts that this creates a genuine issue
of material fact that his actions against her were motivated by her complaint to
OSHA.
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{¶66} Coulter states in his affidavit that he was unaware that Putney was
the one who made the report to OSHA until after her employment was terminated
in February of 2007. In addition, Wehrlin stated in her affidavit that “no one at
Stark Truss or CBC was aware of the identity of the individual who had made the
anonymous complaint[,]” prior to Putney’s letter to Mike Dyer on October 11,
2006, where Putney specifically stated that she was the OSHA complainant.
{¶67} In this case, Putney’s assertion that Spicer’s deposition testimony
corroborates her allegation that Coulter told her that he did not believe her when
she told him that she did not contact OSHA is unfounded. Spicer’s testimony was
that Coulter “had a feeling” that Putney was the complainant. However, Spicer
could not provide any explanation for why he thought Coulter “had a feeling”
other than Coulter asking him if he (Spicer) knew if Putney had made the report.
Spicer testified that he told Coulter that he did not know if Putney was the
complainant. The subjective belief by one person about how another person “felt”
is not corroboration of the other person’s knowledge. It is conjecture. Likewise,
the fact that Coulter may have questioned Putney about whether she was the one
who contacted OSHA and did not believe her when she stated that she had not,
does not establish that he knew she was the OSHA complainant. Again, this is
more conjecture. Such speculation does not satisfy the requirements of Civ.R. 56
to defeat summary judgment.
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{¶68} However, even if Coulter did suspect that Putney was the OSHA
complainant, Putney does not dispute that any of the issues for which she was
disciplined in the year 2006 occurred. Further, these were issues for which she
was previously disciplined and given poor reviews in 2003, 2004, and 2005. Also
of note is that despite perhaps believing in early April of 2006, that Putney was the
one who made the report, as Putney claims, Coulter did not discipline her later that
month, in May, or in June. Rather, he disciplined her for the first time, in July of
2006, some three months later, for something she actually did and then disciplined
her in the months that followed for other undisputed issues.
{¶69} Moreover, Coulter did not choose to even consider suspension for
Putney’s failures until some five months later in September of 2006, when she was
warned that such failures would no longer be tolerated. In fact, he did not suspend
her until she once again committed a critical error in October, some six months
after he allegedly “knew” she filed the report. In addition, she was given
additional training and a probationary period to improve her performance and was
not terminated from her employment until she committed more errors in February,
2007, ten months after Coulter allegedly “knew” she was the complainant.
Therefore, even when construing the evidence in a light most favorable to Putney,
a jury could not reasonably infer from the evidence that Putney’s safety complaint,
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not her repeated poor performance, motivated her write-ups, suspension,
probation, and termination.
{¶70} Putney has also failed to satisfy the fourth prong. As repeatedly
discussed throughout this opinion, the defendants offered evidence of an
overriding business justification for Putney’s termination, i.e. below average
performance. Putney did not produce evidence that the defendants lacked such
justification. There was no factual dispute that the performance issues leading to
Putney suspension and termination had actually occurred. Accordingly, Putney
cannot maintain a wrongful discharge claim as to this element. Therefore, the
fourth assignment of error is overruled.
{¶71} For all of these reasons, each of the assignments of error is
overruled, and the judgment of the Common Pleas Court of Union County, Ohio,
is affirmed.
Judgment Affirmed
PRESTON, P.J., and WILLAMOWSKI, J., concur.
/jlr
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