Birch v. Cuyahoga County Probate Court ( 2007 )

{¶ 30} I concur with the majority's determination that appellant is not a covered employee within the meaning of R.C. 4111.01(D) and that the trial court properly granted summary judgment to appellees on her claim under the Ohio Fair Minimum Wage Standards Act. I respectfully dissent, however, with respect to appellant's sex-discrimination claim under R.C. Chapter 4112. I would affirm the judgment of the trial court in its totality because the comments upon which appellant relies for her prima facie case constitute indirect evidence, at best, and her claims fail under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green (1973),411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668.

{¶ 31} Comments by a decision maker may, in rare circumstances, constitute direct evidence of discrimination, but such comments must be truly unequivocal — "``clear, pertinent, and directly related to decision-making personnel or processes.'" Klaus v. Hilb, Rogal Hamilton Co. ofOhio (S.D.Ohio 2006), 437 F. Supp. 2d 706, 725, quotingDobbs-Weinstein v. Vanderbilt Univ. (M.D.Tenn.1998),1 F. Supp. 2d 783, 798. Comments that are considered direct evidence of discrimination "will be similar to an employer telling its employee, ``I fired you because you are female.'"Johannes v. Monday Community Corr. Inst. (S.D.Ohio 2006), 434 F. Supp. 2d 509, 514-515, quoting Smith v. ChryslerCorp. (C.A.6, 1998), 155 F.3d 799, 805. Statements of personal opinion, even if offensive or biased, are not direct evidence of discrimination. Hall v. United States Dept. ofLabor, Admin. Rev. Bd. (C.A.10, 2007), 476 F.3d 847, 855. The fact that a remark is inappropriate or suggests discriminatory animus does not necessarily indicate that it is direct evidence of discrimination. Dunnom v. Bennett (S.D.Ohio 2003), 290 F. Supp. 2d 860, 868 (concluding that a supervisor's statement to the effect that "women did not belong" was not direct evidence of discrimination).

{¶ 32} The connection between the comments and the act of discrimination must be absolutely clear, requiring no inference or presumption. Vasquez v. Cty. of LosAngeles (C.A.9, 2003), 349 F.3d 634, 640;Johannes, 434 F.Supp.2d at 514. "``[O]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor, constitute direct evidence of discrimination. If the alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence." (Internal citations omitted.) Wilson v. B/E Aerospace, Inc. (C.A.11, 2004),376 F.3d 1079, 1086, quoting Rojas v. Florida (C.A.11, 2002), 285 F.3d 1339, 1342, fn. 2.

{¶ 33} The comments allegedly made by Judge Donnelly are arguably offensive and could even indicate a measure of bias. But they are not direct evidence of discrimination, and appellant cannot rely on them to avoid summary judgment by manufacturing an issue of fact. SeeHopson v. DaimlerChrysler Corp. (C.A.6, 2002),306 F.3d 427, 433. She must therefore proceed under the alternative burden-shifting analysis of McDonnell Douglas.

{¶ 34} Even assuming that appellant can establish the first three elements of a prima facie case, I would conclude that summary judgment was properly granted to appellees because appellant cannot establish the fourth: that she was treated less favorably than a similarly situated male magistrate. SeeBarnett v. Dept. of Veterans Affairs (C.A.6, 1998),153 F.3d 338, 341. While appellant need not identify a male magistrate with whom she is similarly situated in every respect, she must identify those with whom she is similarly situated in every relevant respect. Kroh v. Continental Gen. Tire,Inc. (2001), 92 Ohio St. 3d 30, 32, 748 N.E.2d 36, citingErcegovich v. Goodyear Tire Rubber Co. (C.A.6, 1998), 154 F.3d 344, 353. There must be "enough common factors between a plaintiff and a comparator — and few enough confounding ones — to allow for a meaningful comparison in order to divine whether discrimination was at play."Barricks v. Eli Lilly Co. (C.A.7, 2007),481 F.3d 556, 560.

{¶ 35} Appellant does not like her salary. She does not like it relative to any other magistrate, male or female, and she believes that all magistrates should be earning "pretty much the same" salary regardless of the duties that they perform. The record is clear, however, that there are distinctions of experience and levels of responsibility between appellant and her colleagues. Considering these facts, I would conclude that appellant has not met her prima facie burden of proving that a similarly situated male employee has received more favorable treatment than she.

{¶ 36} I would affirm the judgment of the trial court in its entirety.