Smith v. Stow

229 N.E.3d 1265

2023-Ohio-4302

Barry C. SMITH, Appellant

v.City of STOW, et al., Appellees

C.A. No. 30357

Court of Appeals of Ohio, Ninth District, Summit County.

November 29, 2023

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS, COUNTY OF SUMMIT, OHIO, CASE No. CV-2020-02-0518.

LEWIS A. ZIPKIN, Cleveland, and KEVIN M. GROSS, Attorneys at Law, for Appellant.

JOHN W. MCKENZIE, MICHAEL P. KARST, and AMANDA S. SMITH, Akron, Attorneys at Law, for Appellees.

JAIME M. SYX, Cleveland, Director of Law, for Appellees.

DECISION AND JOURNAL ENTRY

CARR, Judge.

{¶1} Appellant, Officer Barry C. Smith, appeals the judgment of the Summit County Court of Common Pleas. This Court reverses and remands for further proceedings.

I.

{¶2} Officer Smith began his career with the Stow Police Department ("the Department") in 1996. Officer Smith is the only African American employed with the Department. During the school year, Officer Smith serves as the school resource officer at Stow Munroe Falls High School. Officer Smith is a general patrol officer during the summertime.

{¶3} In February 2020, Officer Smith filed an employment discrimination action against the City of Stow and Chief of Police Jeffrey Film. The complaint contained one count of disparate treatment based on race in violation of R.C. 4112.02(A); two counts of failure to promote based on race in violation of R.C. 4112.02(A); one count of aiding and abetting in discrimination in violation of R.C. 4112.02(J); and one count of retaliation in violation of R.C. 4112.02(I). Officer Smith subsequently filed an amended complaint where he set forth an additional count of discrimination based on race in violation of R.C. 4112.02(A). The City and Chief Film filed an answer denying the allegations in the amended complaint.

{¶4} Thereafter, the City and Chief Film filed a motion for summary judgment. Officer Smith filed a brief in opposition to the motion and the City and Chief Film replied thereto. The trial court ultimately issued a journal entry granting summary judgment in favor of the City and Chief Film.

{¶5} On appeal, Officer Smith raises five assignments of error. This Court rearranges and consolidates certain assignments of error in order to facilitate review.

II. ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY DETERMINING OFFICER SMITH PRESENTED INSUFFICIENT EVIDENCE TO MEET THE FOURTH ELEMENT OF HIS PRIMA FACIE CASE OF DISCRIMINATION UNDER R.C. 4112.02.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED BY IMPROPERLY APPLYING THE MCDONNELL DOUGLAS/BURDINE BURDEN-SHIFTING FRAMEWORK AND USING THE CITY OF STOW AND CHIEF FILM’S PROFFERED NONDISCRIMINATORY MOTIVES TO DEFEAT OFFICER SMITH’S PRIMA FACIE CASES OF DISCRIMINATION AND RETALIATION UNDER R.C. 4112.02.

{¶6} In his first assignment of error, Officer Smith argues that the trial court erred in determining that he failed to satisfy the fourth element of his prima facie case for discrimination under R.C. 4112.02(A) in regard to the Department’s promotional process. Officer Smith further argues in his fifth assignment of error that the trial court misapplied the McDonnell Douglas burden-shifting framework in analyzing whether he made a prima facie case for discrimination.

[1, 2] {¶7} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12, 467 N.E.2d 1378 (6th Dist.1983).

{¶8} Pursuant to Civ.R. 56(C), summary judgment is proper if:

(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

[3, 4] {¶9} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a reciprocal burden of responding by setting forth specific facts, demonstrating that a "genuine triable issue" exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).

{¶10} R.C. 4112.02(A) provides that "[i]t shall be an unlawful discriminatory practice * * * [f]or any employer, because of the race[] * * * 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."

{¶11} The Ohio Supreme Court has held that federal case law interpreting Title VII of the Civil Rights Act of 1964 is generally applicable to cases involving alleged violations of R.C. 4112. Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196, 421 N.E.2d 128 (1981).

[5–8] {¶12} When a plaintiff relies on indirect evidence of racial discrimination in support of a claim brought under R.C. 4112.02(A), courts analyze the claim under a burden-shifting framework. Dukes v. Associated Materials, L.L.C., 9th Dist. Summit No. 27091, 2014-Ohio-4322, 2014 WL 4824474, ¶ 7. The plaintiff must first establish a prima facie case of discrimination. Id. "Once a plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action." Rivers v. Cashland, 9th Dist. Summit No. 26373, 2013-Ohio-1225, 2013 WL 1286127, ¶ 16, quoting Smith v. Kelly, 2d Dist. Clark No. 2011 CA 77, 2012-Ohio-2547, 2012 WL 2061947, ¶ 19. "Once the employer states a nondiscriminatory reason for the action, the burden shifts back to the plaintiff to demonstrate by a preponderance of the evidence that the reason articulated by the defendant was mere pretext." Rivers at ¶ 16, quoting Smith at ¶ 19.

[9–13] {¶13} It is well settled that in order to 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 employment action; and (4) replacement by a non-protected person. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "[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." (Internal quotations omitted.) Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). When attempting to show that a comparable non-protected person was treated better, 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 583. The parties to be compared must be similarly-situated in all respects, meaning they "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." Id. "Thus, discrimination can be shown either by replacement by a non-protected person or by favorable treatment to comparable persons similarly-situated." Howell v. Summit Cty., 9th Dist. Summit No. 20958, 2002-Ohio-5257, 2002 WL 31175262, ¶ 15.

Background

{¶14} One of the theories of recovery set forth in Officer Smith’s complaint was that the City and Chief Film violated R.C. 4112.02(A) when it promoted Officer Miller and Officer Dirker to the rank of sergeant but denied a promotion to Officer Smith. Based on the April 2014 Sergeant’s Examination, Officer Miller, Officer Dirker, and Officer Smith were deemed qualified for a promotion. Officer Miller and Officer Dirker, both of whom are Caucasian, were promoted in 2014 and 2015, respectively. Officer Smith alleged that he was denied a promotion on the basis that he was African American. Officer Smith further alleged that Chief Film undertook a restructuring of the police department that eliminated a sergeant position that Officer Smith was eligible to fill.

{¶15} The trial court granted summary judgment to Stow on the basis that Officer Smith failed to establish a prima facie case of discrimination. While the trial court concluded that Officer Smith met the first three elements of the prima facie case, the trial court determined that Officer Smith failed to satisfy the fourth element, namely that a similarly situated nonprotected person received better treatment than Officer Smith. The trial court declined to analyze whether Officer Miller was a similarly situated employee because Officer Smith stated during his deposition that he did not believe that Officer Miller’s promotion was based on racial discrimination. The trial court concluded that Officer Dirker was not similarly situated to Officer Smith because Officer Dirker had obtained a higher score on the 2014 Sergeant’s...