Dunn v. Bruzzese ( 2007 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] {¶ 1} This appeal comes for consideration upon the record in the trial court, the parties' briefs, and their oral arguments before this court. Plaintiff-appellant, Drema Dunn, appeals the decision of the Jefferson County Court of Common Pleas that granted summary judgment to defendant-appellee, Judge Joseph Bruzzese Jr. Dunn raises two issues on appeal.

{¶ 2} First, Dunn contends that the trial court erred in granting summary judgment to Judge Bruzzese on her claims for promissory estoppel and implied contract. However, none of the "promises" to which Dunn refers appear clear and unambiguous enough to form the basis of a promissory-estoppel claim. Furthermore, there is no evidence showing that it was reasonably certain that Dunn and Judge Bruzzese had a meeting of the minds on the terms of Dunn's future employment as a judicial secretary.

{¶ 3} Second, Dunn claims that the trial court erred when granting summary judgment on her age-discrimination claim against Judge Bruzzese. However, the undisputed evidence shows that Dunn's behavior had been a consistent distraction in the workplace and that the judge had tried resolving the issue in different ways to no avail. This conduct shows that her dismissal was not a pretext for age discrimination.

{¶ 4} For these reasons, the trial court's decision is affirmed.

Facts {¶ 5} In 1983, Dunn began working as a legal secretary in Judge Bruzzese's law firm. During this time, she was assigned as the legal secretary to four of the firm's six attorneys, including Judge Bruzzese. Prior to Dunn's employment at the firm, Judge Bruzzese was elected to a part-time judicial position on the Jefferson County Court. When Dunn expressed a desire for better benefits, in 1991, Judge Bruzzese made her a part-time employee of the county court system as his secretary, in part to prevent her from finding another job. Over the course of her employment with the law firm, Judge Bruzzese complimented her work and told her he always wanted her to be his secretary.

{¶ 6} In November 1996, Judge Bruzzese was elected to the Jefferson County Court of Common Pleas, and Dunn became his judicial secretary. Judge Bruzzese retained the prior judge's secretary, Rita Bates, as bailiff. During Dunn's employment at the courthouse, Judge Bruzzese complimented her abilities and told her he always wanted her to be his secretary.

{¶ 7} The relationship between Bates and Dunn was described by witnesses as "dysfunctional" because of the "bullshit" that went on between them. There was more than one reason for the tensions between the two. First, the two disagreed over aspects of their job descriptions, an issue that Judge Bruzzese eventually tried to resolve by writing specific job descriptions. Dunn was also bothered by the fact that Bates had a higher salary and would take more days off work.

{¶ 8} While she worked at the law firm, Dunn would occasionally take a series of actions that Judge Bruzzese termed a "dream freeze." During these periods, Dunn would perform her work more slowly and less efficiently and would act coldly toward the judge. For instance, during a "dream freeze," Dunn would ignore the judge while taking a personal phone call until her call was complete. These periods were rare at the law firm, but became more frequent at the courthouse. Judge Bruzzese said these periods would occur whenever Dunn was upset with him and that she became upset with him when he didn't take her side in a dispute with Bates. Other witnesses saw the behavior that was termed a "dream freeze."

{¶ 9} Eventually, Judge Bruzzese tired of Dunn's complaints and behavior and, on February 5, 2002, gave her the option of either resigning or being terminated. Dunn refused to resign and was terminated by Judge Bruzzese on February 28, 2002. Judge Bruzzese hired a 20-year old female as Dunn's replacement.

{¶ 10} On September 24, 2002, Dunn brought an action in Federal District Court against Judge Bruzzese and the Jefferson County Commissioners, claiming violations of federal statutes, age discrimination, breach of implied contract, and promissory estoppel. After instituting this action, Dunn filed an administrative action with the Equal Employment Opportunity Commission ("EEOC"). Although Dunn moved to voluntarily dismiss her federal suit without prejudice, the Federal District Court dismissed Dunn's federal claims with prejudice, but dismissed her state claims without prejudice on February 2, 2004.

{¶ 11} On May 5, 2005, Dunn filed a complaint in the Jefferson County Court of Common Pleas raising the state claims that were dismissed without prejudice by the federal court. Judge Bruzzese moved for summary judgment on October 31, 2005. Dunn responded and filed her own motion for summary judgment. On January 6, 2006, the trial court granted Judge Bruzzese's motion for summary judgment in its entirety and dismissed Dunn's case.

Standard of Review {¶ 12} In this appeal, Dunn argues that the trial court improperly granted summary judgment to Judge Bruzzese. When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court and, therefore, engages in a de novo review.Parenti v. Goodyear Tire Rubber Co. (1990),66 Ohio App. 3d 826, 829, 586 N.E.2d 1121. Under Civ.R. 56, summary judgment is proper only when the movant demonstrates that viewing the evidence most strongly in favor of the non-movant, reasonable minds must conclude that no genuine issue as to any material fact remains to be litigated, and the moving party is entitled to judgment as a matter of law. Doe v.Shaffer (2001), 90 Ohio St. 3d 388, 390, 738 N.E.2d 1243. A fact is material when it affects the outcome of the suit under the applicable substantive law. Russell v. InterimPersonnel, Inc. (1999), 135 Ohio App. 3d 301, 304,733 N.E.2d 1186.

{¶ 13} When moving for summary judgment, a party must produce some facts that suggest that a reasonable fact-finder could rule in her favor. Brewer v. ClevelandBd. of Edn. (1997), 122 Ohio App. 3d 378, 386,701 N.E.2d 1023. "[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." Dresher v. Burt (1996),75 Ohio St. 3d 280, 296, 662 N.E.2d 264. The nonmoving party has the reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Id. at 293,662 N.E.2d 264.

Promissory Estoppel and Implied Contract {¶ 14} In her first assignment of error, Dunn argues:

{¶ 15} "The trial court erred to the prejudice of Appellant in granting summary judgment on Appellant's claims based on promissory estoppel and implied contract."

{¶ 16} According to Dunn, Judge Bruzzese had the authority to promise her continued employment with the county as his judicial secretary and actually made that promise, and she relied on that promise to her detriment. Judge Bruzzese contends that he did not have the authority to make such a promise, that he did not make a legally enforceable promise, and that Dunn cannot prove detrimental reliance upon such a promise.

{¶ 17} As Dunn concedes, she was not a contractual employee. "A public officer or public general employee holds his position neither by grant nor contract, nor has any such officer or employee a vested interest or private right of property in his office or employment." State exrel. Gordon v. Barthalow (1948), 150 Ohio St. 499,83 N.E.2d 393, paragraph one of the syllabus.

{¶ 18} Furthermore, as a member of the unclassified civil service, she was an at-will employee. In Ohio, the civil service includes all offices and positions of trust or employment in the service of the state, the counties, cities, city health districts, general health districts and city school districts. R.C. 124.01(A). The civil service is then divided into the classified and unclassified service. R.C.124.11. The classified service comprises all civil service personnel not specifically included in the unclassified service pursuant to R.C. 124.11(A). See R.C. 124.11(B). R.C.124.11(A)(8) states that any elective officer, other than a state elective officer, is entitled to "three clerical and administrative support employees," who are unclassified civil service employees. Accordingly, Dunn was an unclassified civil servant.

{¶ 19} The significance between "classified" service and "unclassified" service "is that those employees in the classified service can be removed only for good cause pursuant to the procedures of R.C. 124.34. Employees in the unclassified service are not entitled to this protection."Smith v. Sushka (1995), 103 Ohio App. 3d 465, 470,659 N.E.2d 875. Unclassified employees are "appointed at the discretion of the appointing authority and serve at the pleasure of such authority." State ex rel. Hunter v. SummitCty. Human Resource Comm. (1998), 81 Ohio St. 3d 450, 453,692 N.E.2d 185. Therefore, unclassified civil servants are at-will employees. Lawrence v. Edwin Shaw Hosp. (1988), 57 Ohio App. 3d 93, 94, 566 N.E.2d 1256.

{¶ 20} Generally, an employment-at-will relationship may be altered by promissory estoppel or implied contract. Mers v. Dispatch Printing Co. (1985),19 Ohio St. 3d 100, 103-104, 19 OBR 261, 483 N.E.2d 150. These are two distinct ways of establishing liability.

{¶ 21} A plaintiff must establish the following four elements to prove a claim of promissory estoppel: (1) a clear and unambiguous promise; (2) reliance on the promise; (3) the reliance is reasonable and foreseeable; and (4) the party relying on the promise was injured by his or her reliance.Patrick v. Painesville Commercial Properties, Inc. (1997), 123 Ohio App. 3d 575, 583, 704 N.E.2d 1249.

{¶ 22} There is a dispute between the parties regarding whether Judge Bruzzese had the power to alter the relationship at all. As the concurring opinion demonstrates, if Judge Bruzzese did not have the power to alter the relationship, then Dunn could not have reasonably relied on his promise. However, it is unnecessary to reach this issue because Judge Bruzzese did not even make a clear and unambiguous promise.

{¶ 23} "A clear and unambiguous promise is the type that a promisor would expect to induce reliance."Casillas v. Stinchcomb, 6th Dist. No. E-04-041,2005-Ohio-4019, 2005 WL 1845318, at 1119. Thus, praise with respect to job performance and discussion of future career development, standing alone, "will not modify the employment-at-will relationship." Helmick v. CincinnatiWord Processing, Inc. (1989), 45 Ohio St. 3d 131,543 N.E.2d 1212, paragraph three of the syllabus. Furthermore, the promise forming the basis of a promissory estoppel claim must be specific. "A promise of future benefits or opportunities without a specific promise of continued employment does not support a promissory estoppel exception to the employment-at-will doctrine." Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St. 3d 108, 570 N.E.2d 1095, paragraph two of the syllabus.

{¶ 24} In this case, Dunn has failed to demonstrate a genuine issue regarding whether Judge Bruzzese clearly and unambiguously promised that continued employment. The statements that Dunn relies upon are all either praise with respect to job performance, discussion of future career development, or promises of future opportunities. For instance, before he was elected to the Court of Common Pleas, Judge Bruzzese told Dunn that "he never wanted her to quit," that he was going to take Dunn to the court with him if he became a judge and pay her what she was worth, that he "always" wanted Dunn working for him, that she was "the greatest secretary ever" and he was looking forward to "10 (or 20)" more years with her, that "[h]e never wanted anything to happen that [Dunn] didn't work for him." Shortly after his election, Judge Bruzzese told Dunn, "[T]his is where we're going to retire from." At a later point in time, Judge Bruzzese was considering leaving the bench, but told Dunn's mother that her daughter would be okay because, "Where I go, Drema goes. The day that Drema retires is the day that I retire."

{¶ 25} Since none of these statements are clear, unambiguous promises of continued employment, Dunn cannot prove a claim of promissory estoppel and that the trial court properly granted summary judgment to Judge Bruzzese on this issue.

{¶ 26} Dunn's other claim, for breach of an implied contact, is distinct from her promissory estoppel claim. The Second District explained implied contracts inStepp v. Freeman (1997), 119 Ohio App. 3d 68, 74,694 N.E.2d 510.

{¶ 27} "It is well established that there are three categories of contracts: express, implied in fact, and implied in law. Legros v. Tarr (1989),44 Ohio St. 3d 1, 6, 540 N.E.2d 257, 262-263. Express and implied-in-fact contracts differ from contracts implied in law in that contracts implied in law are not true contracts. Sabin v.Graves (1993), 86 Ohio App. 3d 628, 633, 621 N.E.2d 748. Implied-in-law contracts are a legal fiction used to effect an equitable result. Id. Because a contract implied in law is a tool of equity, the existence of an implied-in-law contract does not depend on whether the elements of a contract are proven.Id.

{¶ 28} "On the contrary, the existence of express or implied-in-fact contracts does hinge upon proof of all of the elements of a contract. Lucas v. Costantini (1983), 13 Ohio App. 3d 367, 368, 13 OBR 449, 469 N.E.2d 927,928-929. Express contracts diverge from implied-in-fact contracts in the form of proof that is needed to establish each contractual element. Penwell v. Amherst Hosp. (1992),84 Ohio App. 3d 16, 21, 616 N.E.2d 254, 257-258. In express contracts, assent to the terms of the contract is actually expressed in the form of an offer and an acceptance.Lucas, supra. On the other hand, in implied-in-fact contracts the parties' meeting of the minds is shown by the surrounding circumstances, including the conduct and declarations of the parties, that make it inferable that the contract exists as a matter of tacit understanding. PointE. Condominium Owners' Assn. v. Cedar House Assn. (1995),104 Ohio App. 3d 704, 712, 663 N.E.2d 343, 348-349. To establish a contract implied in fact a plaintiff must demonstrate that the circumstances surrounding the parties' transaction make it reasonably certain that an agreement was intended.Lucas, supra."

{¶ 29} In this case, the facts do not demonstrate that it was "reasonably certain" that Dunn and Judge Bruzzese came to a "meeting of the minds" over the terms of Dunn's future employment as Judge Bruzzese's judicial secretary. Dunn does not even attempt to point to any facts establishing an implied contract. Since there is no contract, it is irrelevant whether the nonexistent contract violated statutes or administrative law. Accordingly, the trial court properly granted summary judgment to Judge Bruzzese on this claim as well.

{¶ 30} Dunn's arguments concerning both her claim for promissory estoppel and implied contract are meritless. Accordingly, her first assignment of error is meritless.

Age Discrimination {¶ 31} In her second assignment of error, Dunn argues:

{¶ 32} "The trial court erred to the prejudice of Appellant in granting summary judgment on Appellant's claim based on age discrimination."

{¶ 33} Judge Bruzzese moved for summary judgment on Dunn's age-discrimination claim for two reasons. First, he claimed that Dunn' age discrimination claim was barred by the doctrine of election of remedies because she sought administrative relief before she filed her claim for age discrimination in state court. Second, he argued that her age-discrimination claim failed on its merits. As long as one of these reasons forms a sufficient basis for granting summary judgment to Judge Bruzzese, the trial court's decision will be affirmed. State ex rel. Carter v. Schotten (1994),70 Ohio St. 3d 89, 92, 637 N.E.2d 306.

Election of Remedies {¶ 34} Judge Bruzzese first argues that Dunn's claim is barred by the doctrine of election of remedies. Under that doctrine, a claimant is prohibited from seeking relief for age discrimination in one legal avenue after first pursuing that relief in another legal avenue. Ohio provides people with three ways a person may seek relief for a claim of age discrimination: (1) a lawsuit under R.C. 4112.02(N), which prohibits discrimination based on, among other things, age and provides for a civil remedy for such a violation; (2) a lawsuit under R.C. 4112.14(B), which prohibits discrimination against someone who is 40 years old or older; (3) a lawsuit under R.C.4112.99, which allows an action for damages, injunctive relief, or any other appropriate relief for any violation of R.C. Chapter 4112; and (4) administrative remedies under R.C.4112.05(B)(1). Filing a claim with the EEOC counts as seeking an administrative remedy for the purposes of R.C.4112.05(B)(1). Ohio Adm. Code 4112-3-01(D).

{¶ 35} Filing an action under most of these sections precludes recovery under the other sections. R.C.4112.02(N) bars anyone filing under that section "from instituting a civil action under section 4112.14 of the Revised Code and from filing a charge with the commission under section4112.05 of the Revised Code" with respect to the practices complained of. Likewise, R.C. 4112.14(B) prohibits anyone "from instituting a civil action under division (N) of section4112.02 of the Revised Code or from filing a charge with the Ohio civil rights commission ['OCRC'] under section 4112.05 of the Revised Code" with respect to the practices complained of. Finally, anyone who files a "charge under division (B)(1) of section 4112.05 of the Revised Code, with respect to the unlawful discriminatory practices complained of, is barred from instituting a civil action under section 4112.14 or division (N) of section 4112.02 of the Revised Code." R.C.4112.08. The only exception to the requirement to elect a remedy is the bringing of a suit under R.C. 4112.99. Smithv. Friendship Village of Dublin, Ohio, Inc. (2001),92 Ohio St. 3d 503, 751 N.E.2d 1010, syllabus.

{¶ 36} The plain language of R.C. Chapter 4112 provides "that individuals alleging age discrimination must choose between an administrative or judicial action." Id. at 506, 751 N.E.2d 1010. "[T]he General Assembly was aware that individuals might attempt to commence both administrative and judicial proceedings pursuant to R.C. Chapter 4112. So, in clear language, the General Assembly expressed its intent that an election must be made." Id.

{¶ 37} In this case, Dunn filed both statutory claims in federal court and administrative claims with the EEOC before bringing her statutory claims against Judge Bruzzese in state court. The concurring opinion states that Dunn filed an administrative age-discrimination claim in March 2002 and then raised her statutory age-discrimination claims in federal court in late 2002. This description of the facts is contrary to both the facts presented by the parties and the record in this case.

{¶ 38} In his brief to this court, Judge Bruzzese states that Dunn filed her administrative age-discrimination claim on October 10, 2002, not in March 2002. He also states that Dunn's complaint in Federal District Court was filed on September 24, 2002, before the administrative claim was filed. Dunn also states that she had not filed any "charge of discrimination at all with any agency, state or federal," when she filed her complaint in federal court. These facts are borne out by the record.

{¶ 39} The record contains the charge of discrimination that Dunn filed with the EEOC. That charge shows that it was signed by Dunn before a representative of the OCRC on March 10, 2002. However, the document does not indicate that it was ever filed with the OCRC on this date. Instead, the only file-stamp date on the document shows that it was filed with the EEOC on October 10, 2002. Since we must view all the facts in the light most favorable to Dunn for the purposes of summary judgment, we must conclude that this charge was first filed with an administrative agency on the only date stamped on the document, October 10, 2002.

{¶ 40} The record does not show exactly when Dunn filed her complaint in Federal District Court. Instead, the record contains a copy of a complaint in the federal case that is not file-stamped. That complaint contains a certificate of service showing that it was served on the defendants' attorney on December 30, 2002. However, the text of that complaint shows that it is not the original complaint filed in that case; rather, it is an amended complaint. The only parts of the complaint that indicate that it is an amended complaint are the parts dealing with the federal court's jurisdiction. Namely, the document indicates that it was amended to reflect the fact that Dunn had received her right-to-sue letter from the EEOC within 90 days of the amendment.

{¶ 41} Putting these facts together, and interpreting them in the light most favorable to Dunn, the nonmovant, we must conclude that Dunn's complaint in Federal District Court was filed before her administrative claim. Since these are the facts argued by both of the parties, this conclusion appears beyond dispute.

{¶ 42} Dunn's suit in federal court stated a claim under R.C. 4112.14. That claim was voluntarily dismissed without prejudice. While the federal claim was pending, Dunn filed a complaint with the EEOC, but did not specifically state that she was doing so to preserve her federal age-discrimination claims. Dunn then filed the complaint in this case, again stating a cause of action under R.C. 4112.14.

{¶ 43} When Dunn filed her suit in federal court, she clearly elected to pursue the remedies available under R.C.4112.14. Once Dunn instituted her federal suit, she could not seek administrative remedies; she had locked herself in pursuing remedies under R.C. 4112.14. This does not change merely because Dunn's federal suit was voluntarily dismissed. R.C. 4112.14 prevents a person from filing for administrative remedies after instituting a lawsuit, not after receiving a merit decision in a lawsuit. Thus, Dunn was prevented from receiving any remedy under Ohio law in her administrative claim. This situation did not change when Dunn's federal claim was dismissed. R.C. 4112.14 still prevented her from receiving any administrative remedy because she had previously instituted a civil action under R.C. 4112.14. Thus, Dunn's original election to seek a remedy via a civil lawsuit was still effective.

{¶ 44} The concurrence believes the opposite, concluding that Dunn's voluntary dismissal of her federal suit leaves her in the same position as if she had never filed her federal claim in the first place. However, the case law that the concurrence cites for this proposition stands for a wholly different proposition.

{¶ 45} In DeVille Photography, Inc. v.Bowers (1959), 169 Ohio St. 267, 8 O.O.2d 281,159 N.E.2d 443, a business owed a sales-tax assessment. The business voluntarily declared bankruptcy, and the referee in bankruptcy declared that the sales-tax claim should be disallowed. The business then voluntarily dismissed the bankruptcy action. The Attorney General then instituted proceedings to force the business to pay the sales-tax assessment. The business claimed that the referee's decision in the bankruptcy proceeding was res judicata and that the state could not collect those funds.

{¶ 46} The Ohio Supreme Court recognized "that the order of a referee in bankruptcy allowing or disallowing a claim is a judgment and the order is res judicata in subsequent proceedings." Id. at 269, 8 O.O.2d 281, 159 N.E.2d 443. However, it held that a judgment made in a case that has been voluntarily dismissed cannot be res judicata on the same issue in a later case.

{¶ 47} "A dismissal without prejudice * * *. It gives to the complaining party the right to state a new case, if he can. But it takes away no right of defense to such suit save that which might be based on the bar of the first action. * * * ``Where an action or proceeding is dismissed without prejudice, rulings preceding the final judgment or decree of dismissal are, as a general proposition, not capable of becoming res judicata'" Id. at 272, 8 O.O.2d 281,159 N.E.2d 443, quoting 149 A.L.R. 561.

{¶ 48} Thus, DeVille stands for the proposition that an interlocutory order in a case that has been voluntarily dismissed cannot act as res judicata. It is in regard to the issue of res judicata that the voluntarily dismissed case "leaves the parties as if no action had been brought at all."

{¶ 49} The doctrine of election of remedies is distinct from the doctrine of res judicata. "The doctrine of election of remedies involves choosing between two or more different and co-existing modes of procedure and relief permitted by law on the same facts. It is a choice made with knowledge between two inconsistent substantive rights, either of which may be utilized at the discretion of the party, who cannot, however, employ both." (Citations omitted.) Welchv. Welch, 11th Dist. No. 2006-L-035, 2006-Ohio-7013,2006 WL 3833849, at ¶ 13. Thus, the doctrine of election of remedies is concerned with the procedure used, not the outcome of a case

{¶ 50} In contrast, the doctrine of res judicata bars all claims that were litigated in a prior action as well as all claims that might have been litigated in that action.Grava v. Parkman Twp. (1995), 73 Ohio St. 3d 379, 382,653 N.E.2d 226. The doctrine ``"encourages reliance on judicial decisions, bars vexatious litigation, and frees the court to resolve other disputes.'" National Amusements, Inc. v.Springdale (1990), 53 Ohio St. 3d 60, 62, 558 N.E.2d 1178, quoting Brown v. Felsen (1979), 442 U.S. 127, 131,99 S. Ct. 2205, 60 L. Ed. 2d 767. This doctrine does not concern itself with the procedure used to reach a judgment, only that a final judgment has been reached.

{¶ 51} The statutes governing age discrimination in Ohio do not rely on how a case is ultimately decided before applying the doctrine of election of remedies. Instead, they apply when either a civil action is instituted or an administrative charge is filed. See R.C. 4112.02(N); R.C.4112.14(B); R.C. 4112.08. Applying DeVille ``s holding to this situation would be tantamount to ignoring this plain statutory language. Accordingly, the remedy Dunn first elected, relief under R.C. 4112.14, is the only remedy she is entitled to receive. Dunn's complaint in this case seeks the same relief she originally sought in federal court. Accordingly, the doctrine of election of remedies does not bar Dunn's age-discrimination claim.

Merits of Age Discrimination Claim {¶ 52} R.C. 4112.14(A) prohibits age discrimination. That statute provides:

{¶ 53} "No employer shall * * * discharge without just cause any employee aged forty or older who is physically able to perform the duties and otherwise meets the established requirements of the job and laws pertaining to the relationship between employer and employee." Id.

{¶ 54} Absent direct evidence of age discrimination, the Ohio Supreme Court has adopted the burden-shifting analytic framework established by the United States Supreme Court in McDonnell Douglas Corp. v.Green (1973), 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668, for use in Title VII cases to prove discriminatory intent. SeeBarker v. Scovill, Inc. (1983), 6 Ohio St. 3d 146,147-148, 6 OBR 202, 451 N.E.2d 807. The purpose for shifting burdens of proof in discrimination claims is to assure that the employee has a day in court despite the unavailability of direct evidence. See St Mary's Honor Ctr. v. Hicks (1993), 509 U.S. 502, 507, 113 S. Ct. 2742, 125 L. Ed. 2d 407.

{¶ 55} "In order to establish a prima facie case of age discrimination, violative of R.C. [4112.14], in an employment discharge action, plaintiff-employee must demonstrate (1) that he was a member of the statutorily-protected class, (2) that he was discharged, (3) that he was qualified for the position, and (4) that he was replaced by, or that his discharge permitted the retention of, a person not belonging to the protected class. Defendant-employer may then overcome the presumption inherent in the prima facie case by propounding a legitimate, nondiscriminatory reason for plaintiff's discharge. Finally, plaintiff must be allowed to show that the rationale set forth by defendant was only a pretext for unlawful discrimination."Barker, 6 Ohio St. 3d 146, 6 OBR 202, 451 N.E.2d 807, syllabus.

{¶ 56} In this case, Judge Bruzzese concedes that Dunn presented sufficient evidence to establish a prima facie case of age discrimination for the purposes of summary judgment, and Judge Bruzzese has conceded this fact. The facts, when viewed in the light most favorable to her, reveal the following: (1) Dunn was over 40 years old and, therefore, a member of the protected class; (2) Dunn was discharged from her position by Judge Bruzzese; (3) Dunn had been a legal secretary for years, for years working for Judge Bruzzese in particular, and this experience made her qualified for the position; and, (4) Dunn's replacement was much younger than 40 years old and, therefore, outside the protected class. These facts, for the purposes of summary judgment, establish a prima facie case of age discrimination under R.C. 4112.14.

{¶ 57} Likewise, Dunn conceded that Judge Bruzzese had stated a legitimate, nondiscriminatory reason for Dunn's discharge. According to Judge Bruzzese's undisputed testimony, Dunn's behavior at work was making him "miserable." Dunn was angry that another employee, one who had been working for the county longer than Dunn, was earning more than she was. She repeatedly voiced her displeasure to the judge, the other employee, and other people in the courthouse. Furthermore, when she would get angry with Judge Bruzzese, she would slow her work down and ignore him, periods the judge referred to as "dream freezes." This behavior would be unacceptable in any work environment and constitutes a legitimate, nondiscriminatory reason for Dunn's discharge.

{¶ 58} The real disagreement between the parties is whether Judge Bruzzese's legitimate, nondiscriminatory reason for firing Dunn was merely a pretext for age discrimination. To establish pretext, the employee must show by a preponderance of the evidence that the employer's proffered reason is not worthy of credence or that discriminatory reasons more likely motivated the employer's decision. Texas Dept.of Community Affairs v. Burdine (1981), 450 U.S. 248, 256,101 S. Ct. 1089, 67 L. Ed. 2d 207. In order to determine whether a proffered reason is worthy of credence, a court must look to whether the reasons offered are, on the facts involved, objectively false and refrain from weighing the sufficiency of those reasons. Reeves v. Sanderson Plumbing Prod.,Inc. (2000), 530 U.S. 133, 120 S. Ct. 2097,147 L. Ed. 2d 105. A party can show that discrimination more likely motivated the employer's decision by eliminating all legitimate reasons for rejecting an applicant. Id.

{¶ 59} Judge Bruzzese argues that Dunn cannot establish pretext because she cannot produce any evidence of discrimination other than the evidence that established her prima facie case of age discrimination. He further contends that the evidence Dunn does attempt to rely on does not actually demonstrate age discrimination.

{¶ 60} Dunn argues that she could rely exclusively on the evidence supporting her prima facie case if Judge Bruzzese's reason was sufficiently incredible. She contends that the judge's reasons were purely subjective, without corroboration, and inconsistent with the testimony of other witnesses. She argues that he would have never brought her with him to the courthouse if her behavior had been as bad as he states. Dunn also maintains that the judge's testimony about the amount of Dunn's complaints is vastly overrated. She further argues that Judge Bruzzese did not follow the progressive disciplinary framework outlined in the Jefferson County employee handbook and had repeatedly complimented her on her work.

{¶ 61} Contrary to Dunn's arguments, there is a lot of evidence in the record corroborating his description of Dunn's behavior. Judge Bruzzese testified that Dunn's behavior in the workplace was making him "miserable." According to Judge Bruzzese, Dunn "was always complaining about everything," especially the difference in rate of pay between her and Bates. He was particularly bothered by the fact that Dunn would talk about her complaints with people all over the courthouse. Judge Bruzzese also described "dream freezes," periods when Dunn would ignore him to talk on the phone, fail to correct obvious mistakes in his dictation, call off work, and generally slow down her rate of work. Judge Bruzzese testified that these "dream freezes," which could last for a couple of weeks, were "fairly rare" at the law firm, but became much more frequent after he became a judge.

{¶ 62} This testimony was supported by the testimony of Bates and the two court reporters who worked in Judge Bruzzese's chambers. Bates testified that the atmosphere in the office was "very uncomfortable" due to the "personality problems" between her and Dunn. She said the problems would be so bad that there were days when she would "be upset and cry all day." Bates had heard the judge use the term "dream freeze" in relation to Dunn when Dunn was upset with Judge Bruzzese and described Dunn during these times as "very quiet." Bates understood that the judge found Dunn hard to work with during a "dream freeze." Bates testified that Judge Bruzzese had spoken to her and Dunn about ways to dissolve the tension between them.

{¶ 63} Susan Schweiss, one of the court reporters, testified that she had also heard the judge use the phrase "dream freeze" in regard to Dunn. She confirmed that Dunn would complain about Bates's attendance and the difference in pay between Dunn and Bates. Schweiss heard that Dunn had been making these complaints to many people in the courthouse. She confirmed that Bates and Dunn would argue. However, she stated that she never saw Dunn be disrespectful toward the judge, even though she began to complain about him more often toward the end of her employment at the court.

{¶ 64} The other court reporter, Becky Wood, testified that the atmosphere in Judge Bruzzese's office was "dysfunctional" because of issues between Dunn and Bates, calling some of what went on in the office "bullshit." On more than one occasion, Wood spoke with the judge about the relationship between Bates and Dunn. Wood thought that both Dunn and Bates believed that she should be "queen bee" of Judge Bruzzese's chambers and that this was the source of their problems. Wood testified that Dunn "spent a lot of time going from office to office when she was unhappy about Rita or something that was going on," despite the judge's request that what happened in the office stay in the office. Other people in the courthouse would then tell Wood about Dunn's complaints. Wood felt that Dunn was disrespectful of the judge behind his back.

{¶ 65} Wood had also heard Judge Bruzzese use the phrase "dream freeze" with regard to Dunn. According to Wood, a "dream freeze" was a pattern of behavior that Dunn would engage in when she was upset. Wood said that Dunn would be "real cool" and "quiet" during a dream freeze. Wood believed this was Dunn's way of punishing the judge when she was unhappy with him.

{¶ 66} This testimony all supports Judge Bruzzese's description of the office situation when he decided to terminate Dunn. Furthermore, this testimony explains why Judge Bruzzese may not have realized Dunn would be such a problem employee at court, since "dream freezes" occurred much less frequently at the law office.

{¶ 67} Dunn places a great deal of reliance on Judge Bruzzese's failure to follow the progressive disciplinary framework outlined in the Jefferson County employee handbook. Judge Bruzzese tries to explain that he believed the handbook did not cover court employees, but it appears this issue is irrelevant. "[A]n inference of age discrimination does not arise from the fact that an employer does not follow its termination procedures where there is no evidence that the terminated employee was treated less favorably than others on account of his age." Swiggum v. Ameritech Corp. (Sept. 30, 1999), 10th Dist. No. 98AP-1031, 98AP-1040, 1999 WL 771022, at *18, citing Stanojev v. Ebasco Sews., Inc. (C.A.2, 1981), 643 F.2d 914, 923.

{¶ 68} When viewing all of this evidence in the light most favorable to Dunn, we cannot conclude that she has demonstrated a genuine issue of material fact regarding whether Judge Bruzzese's reason for discharging Dunn was pretextual. The undisputed evidence shows that Dunn's behavior had been a consistent distraction in the workplace and that the judge had tried resolving the issue in different ways to no avail. Accordingly, the trial court properly granted summary judgment to Judge Bruzzese. Dunn's second assignment of error is meritless.

Conclusion {¶ 69} Both of Dunn's assignments of error are meritless. Dunn failed to demonstrate a genuine issue of material fact on any of her claims against Judge Bruzzese. Accordingly, the judgment of the trial court granting summary judgment to Judge Bruzzese is affirmed.

Judgment affirmed.

VUKOVICH, J., concurs.

WAITE, J., concurs in judgment only.