IN THE SUPREME COURT OF OHIO
CUYAHOGA COUNTY, SUPREME COIJR PROBATE COURT CASE NO.: 01.
On Appeal from the Cuyahoga and County Court of Appeals, Eighth Appellate District THE HONORABLE JOHN J. DONNELLY EIGHTH DISTRICT CASE NO.: 06-88854 Appellants, V. CUYAHOGA COUNTY COURT WANDA BIRCH OF COMMON PLEAS CASE NO.: 05-CV-554591 Appellee.
MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS CUYAHOGA COUNTY PROBATE COURT AND JUDGE JOHN J. DONNELLY
Caryn Groedel (0060131) ROBERT M. WOLFF (0006845) CARYN GROEDEL & ASSOCIATES JAMES P. SMITH (0073945) Counsel for Appellee, Wanda Birch LITTLER MENDELSON 5910 Landerbrook Dr., Suite 200 Counsel for Appellant, Cuyahoga Cleveland, OH 44124 County Probate Court and Judge John Tel: (440) 544-1122 J. Donnelly, in his official capacity Fax: (440) 446-1240 I 100 Superior Ave., 20th Floor Cgroed e1(a) proedel-law. com Cleveland, Ohio 44114 Tel: (216) 696-7600 Fax: (216) 696-2038 E-mail: rwolff2littler.com ipsmith(cr^littler.com
LINDA L. WOEBER (0039112) MONTGOMERY, RENNIE & JONSON Counsel for Appellant, Judge John J. Donnelly, in his Individual Capacity 36 East Seventh Street, Suite 2100 ^ 7 1 i; 42) .-,^^Fi { r Cincinnati, Ohio 45202 Tel: (513) 241-4722 C€,ER!( OR[3€iP7" Fax: (513) 241-8775 StJPREIU!% 0001 OF OHIO E-mail:lwoebernmri law. com TABLE OF CONTENTS
PAGE
I. EXPLANATION WHY THIS CASE IS A CASE OF PUBLIC AND GREAT GENERAL INTEREST ...... I
II. STATEMENT OF THE CASE ...... 2
III. STATEMENT OF FACTS ...... 3
A. The Different Probate Court Magistrates Perform Vastly Different Duties for the Court ...... 4
B. Birch's Duties in the Release of Assets Department Do Not Approach the Same Level of Complexity as Those Handled in Other Departments of the Court ...... 6
IV. LAW AND ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ...... 7
A. PROPOSITION OF LAW I: In cases involving disparate treatment in the payment of wages, the standard for direct evidence is narrower than the already narrow standard under the Ohio Civil Rights Act and Title VII ...... 7
B. PROPOSITION OF LAW II: Courts examining whether or not a statement constitutes direct evidence of discrimination must examine the context in which the statement is made ...... 9
C. PROPOSITION OF LAW NO. III: In the absence of direct evidence, plaintiffs claiming wage-based discrimination under Ohio R.C. 4112.02 must meet the equal work standard of R.C. 4111.17 ...... :.... 12
1. The "equal work" standard for wage discrimination claims establishes a higher burden than the substantial similarity standard addressed in disciplinary cases, such as Mitchell and Ercegovich ...... 12
2. Ohio and federal courts have recognized the importance of applying an equal work standard to wage-based discrimination claims, regardless of the statutory basis on which they are raised...... 14
V. CONCLUSION ...... 15
CERTIFICATE OF SERVICE
i I. EXPLANATION WHY THIS CASE IS A CASE OF PUBLIC AND GREAT GENERALINTEREST
This case highlights the inconsistencies in Ohio law found in cases addressing wage- based discrimination claims outside the confines of the Ohio Minimum Fair Wage Standards
Act. Initially, Ohio courts must not be allowed to lower the bar ad hoc on the direct evidence standard in wage discrimination claims, because such a finding virtually eliminates plaintiff's burden of proof and must be reserved for cases where the conclusion that an employer has discriminated is inescapable. Indeed, in cases alleging wage-based discrimination outside of the
Equal Pay Act, it well settled that the direct evidence standard is even narrower than the already narrow standard under Title VII and, by extension, the Ohio Civil Rights Act.
Further, all employers in Ohio, whether public or private, must be permitted the discretion to compensate employees differently unless those employees can prove they are performing "equal work" in comparison with a more highly compensated employee. This issue is of critical importance to Ohio businesses, because employers need the predictability of a consistently applied law regarding equal pay.
It is respectfully submitted that this Court needs to provide guidance to inferior courts, counsel and litigants, defining once and for all what constitutes "direct evidence" sufficient to release a plaintiff from the burden he or she otherwise must bear in establishing a triable issue of workplace discrimination. This need is particularly pronounced in wage cases where the alleged
"direct evidence" has absolutely nothing to do with compensation and where the plaintiff is
unable to establish that she performs work comparable to any higher paid male employee of
defendant,
1 II. STATEMENT OF THE CASE
On February 14, 2005, Appellee Wanda Birch ("Birch") brought suit against The
Honorable John J. Donnelly and The Cuyahoga County Probate Court (collectively "Judge
Donnelly")' in the Cuyahoga County Court of Common Pleas, alleging wage discrimination both under R.C. § 4111.17 and pursuant to R.C. § 4112.02? Judge Donnelly filed a joint motion for summary judgment which was granted. The trial court found no evidence of gender discrimination and held that Birch is exempted from the definition of employee under R.C. §
4111.01.
The Eighth District Court of Appeals (with Ninth District Judges sitting by assignment) reversed the trial court's decision in part, ruling that direct evidence of discrimination precluded summary judgment on Birch's R.C. 4112.02 claim. Specifically, the court ruled that two statements, taken out-of-context, were direct evidence of discrimination. Judge Slaby disagreed.
In his dissent, he maintained that those statements, at the most, suggested (but did not prove) discriminatory motive. Accordingly, Judge Slaby concluded that those statements were not direct evidence of discrimination. In arguing for affirmance, he properly summarized
Appellant's argument on appeal: "Appellant does not like her salary. She does not like it relative
' Judge Donnelly recognizes that an Ohio Court is not a viable entity, capable of being sued. Alkire v. Irving (N.D. Ohio, September 25, 2003), Case No. 5:96cv2687, 2003 U.S. Dist. LEXIS 17856; Malone v. Court of Common Pleas of Cuyahoga County (1976), 45 Ohio St.2d 245, 248; Mayer v. Cincinnati (Hamilton Ct. App.1938), 60 Ohio App. 119, 120-22. See Also Mineer v. Fleming County (6th Cir. March 15, 1995), Case No. 94-5108, 1995 U.S. App. LEXIS 5473 at n.1. Judge Donnelly moved to dismiss the case pursuant to Rule 12. The trial court denied this motion. 2 Birch originally brought suit in federal court on July 12, 2001, against Judge Donnelly alleging age, race and gender discrimination. Birch's age and race discrimination claims were dismissed on summary judgment by the District Court. The Sixth Circuit affirmed this decision. Based upon statements attributed by Birch to Judge Donnelly, the Sixth Circuit declined to affirm summary judgment on the Ohio 4112.02 gender claim alone. (See Birch v. Cuyahoga County Probate Court (6`h Cir. 2004), 392 F.3d 151 ("Birch L") Upon remand, the District Court declined to exercise jurisdiction over the remaining Ohio claim and dismissed it without prejudice. Thus, Birch filed a new action in state court. 2 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." Birch v. Cuyahoga
County Probate Court, 2007 Ohio 6189 ("Birch II") at ** 21-22. This point was completely ignored by the majority and is especially significant to the equal work standard, also ignored by the majority.
III. STATEMENT OF FACTS
Judge Donnelly has been the Presiding Judge of the Probate Division of the Cuyahoga
County Court of Common Pleas since 1991 (Donnelly Dep., p.6). Since assuming this position,
Judge Donnelly has had the opportunity to appoint five attorneys to Magistrate positions within the Probate Court. Four of the five Magistrates appointed by Judge Donnelly are female and one is male (Birch Dep. II, pp.53-54) 3 Two of the three department heads Judge Donnelly has promoted are female (Donnelly Dep., p. 52). Despite this, Birch claims gender discrimination focusing upon her compensation in relation to her male and female colleagues (See Birch Dep.,
II., pp. 16-17).
Although literally ignored in the opinion below, evidence of the vast, objective differences in the actual duties performed by the different Magistrates at Probate Court is undisputed in the record. Further, Birch has conceded that virtually every personnel decision made by Judge Donnelly has revealed, if anything, a bias in favor of the appointment and promotion of female professionals in the Probate Court (Birch Dep. II, p. 54),
Birch describes a meeting with Judge Donnelly after she and her colleagues learned of a
disparity in pay in 1998, which appeared to favor Probate magistrates who are male. Four
female Magistrates requested a meeting with Judge Donnelly (Polito Dep., pp. 36-38. See also
3The Deposition of Wanda Birch taken May 2, 2002, will be designated as Birch Dep. I. and the Deposition of Wanda Birch taken on August 3, 2005, will be designated as Birch Dep. II. 3 Polito Aff. I, ¶ 2). Judge Donnelly explained the different functions of the six divisions of the
Probate Court and how they affect the compensation structure for Magistrates, regardless of gender (Donnelly Dep., p. 48-52). At this meeting, Judge Donnelly stated that he "does not have to hire women, but he chooses to." (Donnelly Dep., p. 52).
The record contains no evidence of gender discrimination at the Probate Court. Birch relies upon her subjective opinion that she should have been paid as much as all other magistrates, male or female. According to Birch "it's all Probate Court work," and the complexity of the assignments, or how hard the magistrate works should not create any distinction in compensation (Birch Dep. II, p. 64). Apparently, the appellate court agreed, because the majority opinion ignores the dramatic differences in the jobs performed by Birch as compared to the jobs performed by the male and female magistrates in other departments.
A. The Different Probate Court Magistrates Perform Vastly Different Duties for the Court
Magistrates are appointed to handle matters within various departments of the Cuyahoga
County Probate Court including: (1) the Front Office; (2) Psychiatric Department; (3) Adoptions;
(4) Guardianship Department; (5) Accounts; and (6) Release of Assets (Birch Dep. I., pp. 16, 43;
Donnelly Dep., pp. 56-57). The function of each department within the Probate Court is different; therefore, the duties of the Magistrates differ from one department to another
(Donnelly Dep., pp. 57-66). These differing functions and their respective levels of complexity, along with other factors, influence compensation for each Magistrate (Polito Dep., p. 22;
Donnelly Dep., p. 35). Additional factors considered by Judge Donnelly in determining
Magistrate compensation include supervisory responsibilities, as well as seniority, probate experience and job performance. (Id.)
4 Judge Donnelly testified that he views these criteria together in determining compensation. He stated that the difficulty of the work to be performed is a major factor, perhaps accounting for fifty percent of the salary decision (Id. p. 36). For example, the Front Office
Department has five Magistrates and is responsible for virtually all types of actions involving the
Court's jurisdiction, including complex trust litigation, approval of settlements for minors and incompetent adults, concealment of assets and declaratory judgment (Donnelly Dep., pp. 57-66).
The Psychiatric Department is responsible for involuntary commitments and appointments of counsel and magistrates for psychiatric hearings. Magistrate Ralph Cosiano supervises ten part- time Magistrates, three social workers and four deputy clerks in the Psychiatric Department
(Donnelly Dep., pp. 61-62). Roseanne Hilow serves as the Magistrate in the Adoptions
Department and supervises two social workers and two deputy clerks (See Polito Aff. I¶ 2). The
Guardianship Department conducts hearings on appointing and removing guardians for minor children and incompetent adults. Both Guardianship Magistrates, Wanda Arnold and Alan
Shankman hear contested and uncontested guardianship cases. Magistrate Shankman is also a supervisor. The Accounts Department is responsible for supervising accounts and inventories in addition to surcharge actions and removal of fiduciaries. Ralph Sobieski, the Magistrate in the
Accounts Department, is a CPA and attorney who supervises eight employees (Donnelly Dep., pp. 58-60; Polito Aff. I¶ 2).
Birch has criticized Judge Donnelly's criteria for determining Magistrate compensation based upon job duties and responsibilities (Birch Dep. I, pp.88-92); however, Birch admits Judge
Donnelly is in a better position to evaluate the comparative duties and complexities of the different Magistrates' jobs than she is (Id. p. 182). Incredibly, Birch concedes that her lawsuit is
5 - in reality - a challenge to the higher salaries earned by male and female Magistrates who work in the other departments of the Court (Id. pp. 63-65).
B. Birch's Duties in the Release of Assets Department Do Not Approach the Same Level of Complexity as Those Handled in Other Departments of the Court.
Birch admits nearly all the Release of Assets cases are uncontested (Id. p. 46) and that her duties involve name changes and determining the value of small estates, with a limit of
$35,000.00 for a single estate and $100,000.00 for an estate with a spouse (Id. p. 16). Birch testified an uncontested release of assets takes approximately 10-15 minutes (Birch Dep. II, p.
34). She testified most of her cases do not involve a hearing or representation by a lawyer because the only issues are the value of the estate and who should receive the assets (Birch Dep.
II, pp. 28-31; Polito Dep., pp. 15-16). A contested hearing takes more time because lawyers present legal arguments, introduce witnesses and other evidence, and the magistrate must apply the rules of evidence and procedure (Birch Dep. II, p. 23). Contested hearings involve lawyers raising arguments about the validity of the positions and the Magistrate studying the law and writing an opinion (Id. pp. 31-32).
The contested matters that Birch believes she handled were limited to guardianships, attorneys' fees, determination of heirs, relief from administration and name change hearings (Id. pp. 21-22). In fact, Birch cannot recall a single case of any kind involving a contested hearing that lasted more than a day and a half (Birch Dep. II, pp. 47-48).
She has never handled a will construction case nor can she recall any details of a
declaratory judgment action she may have handled during the last five years (Id. pp. 23-24).
Birch has never handled a tax apportionment action, a complex trust matter, trust litigation, a
Medicaid pay back trust matter, a contested antenuptial agreement issue, a wrongful death
settlement or personal injury settlement for an incompetent adult or minor, an application to 6 transfer structured settlement payments, a surcharge action or an involuntary commitment hearing (Id. pp. 22-28, 30-34, 36, 39). All of these matters are handled by magistrates in other departments.
Birch acknowledges that she is not a department supervisor (Birch Dep. I, pp. 17, 93) and handles very few contested matters (Birch Dep. II, pp. 38-40). Importantly, she admits that the work she performs in the Release of Assets Department may be less challenging than the work of
Magistrates in other departments (Birch Dep. I, p. 28) but insists the difference is not sufficient to warrant a distinction in compensation (Birch Dep. I, pp. 88-92).
IV. LAW AND ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
A. PROPOSITION OF LAW I: In cases involving disparate treatment in the payment of wages, the standard for direct evidence is narrower than the already narrow standard under the Ohio Civil Rights Act and Title VII.
No court in Ohio has addressed the issue of what constitutes direct evidence of discrimination in cases alleging wage discrimination in violation of the Ohio Civil Rights Act.
In fact, the last time this Court provided any guidance on the issue of direct evidence was over
10 years ago in the plurality opinion of Byrnes v. LCI Communication Holdings, Co. (1996), 77
Ohio St.3d 125. As a result of this lack of guidance, the Court of Appeals failed to recognize that the direct evidence standard in cases involving disparate treatment in the payment of wages is even higher than the already exacting standard in traditional Title VII/Ohio Civil Rights Act cases. This failure would impermissibly lower the bar for employees claiming wage discrimination outside of the Ohio Minimum Fair Wage Standards Act and the Equal Pay Act.
Generally speaking, "[t]he analysis of a claim of unequal pay for equal work is essentially the same under both the Equal Pay Act and Title VII." Clark v. Johnson & Higgins
(01' Cir. May 28, 1999), Case No., 1999 U.S. App. LEXIS 11350 at *8. Accordingly, in the absence of direct evidence of discrimination, a plaintiff "must make a prima facie showing that
7 the employer paid different wages to an employee of the opposite sex for substantially equal work." Id. at * 10 (quoting Timmer v. Michigan Department of Commerce (6`h Cir. 1997), 104
F.3d 833, 843). In reaching that conclusion, the Clark court noted "in some cases, there will be a claim of wage discrimination that would succeed under Title VII but not the EPA." Id. at *8.
According to the Clark court, in these cases, the plaintiff must provide direct evidence of wage discrimination or proof that she can meet the equal work standard.
In County of Washington v. Gunther (1981), 452 U.S. 161, 179, the United States
Supreme Court provided the initial guidance as to what constitutes direct evidence of discrimination in claims alleging disparate treatment in the payment of wages under Title VII. In that case, the employer's own survey valued the females' jobs the same as men, yet the employer paid the females less. The Supreme Court held that this was direct evidence of discrimination because it did not "require the court to make its own subjective assessment of the value of the male and female guard jobs, or to attempt by statistical technique or other method to quantify the effect of sex discrimination on the wage rates." Id. at 181. Direct evidence must be "clear and straightforward" and must show that an employer `°intentionally depressed a woman's salary because she is a woman."' EEOC v. Sears Roebuck & Co. (7`h Cir. 1988), 839 F.2d. 302, 333-
334 (quoting Gunther, 452 U.S. at 204 (Renquist, J. dissenting)).
Since Gunther, courts have narrowly defined what constitutes direct evidence of discrimination in cases alleging wage discrimination under Title VII. The Clark court defined
"direct evidence" as "an admission that the employer would have paid [the plaintiffJ more had she been a man, or "`a transparently sex-biased system for wage determination."' Clark, 1999
U.S. App. LEXIS 11350 at *10 (quotation omitted). See also Conti v. Universal Enterprises,
8 Inc. (6`s Cir. September 20, 2002), Case No. 00-2538, 2002 U.S. App. LEXIS 20189 at **23
(same).
In this case, the Court of Appeals failed to examine Birch's claimed "direct evidence" under this narrow definition and, in so doing, committed error. Under the standard set forth in
Gunther and its progeny, the statements upon which Birch relies falls far short of "direct evidence" of wage discrimination. Indeed, the statements do not demonstrate a transparently sex-biased system of wage determination. Further, the statements certainly are not an admission that Judge Donnelly would have paid her more had she been a male.
B. PROPOSITION OF LAW II: Courts examining whether or not a statement constitutes direct evidence of discrimination must examine the context in which the statement is made.
Under any definition of direct evidence, a court is required to examine the context in which the statements are made. Here, the Court of Appeals failed to do this and, in so doing, impermissibly broadened the definition of "direct evidence" in employment discrimination cases.4
In Byrnes, 77 Ohio St.3d at 130 this Court held that an employee must prove a causal link between the statement and the prohibited act of discrimination. To prove that link, courts must look at the context in which the statement is made. Indeed, it is well settled that context is the key consideration in evaluating direct evidence. Granger v. Williams (M.D. Ala. 2002), 200 F.
°The court of appeals, in finding that Judge Donnelly's alleged statements constituted direct evidence of discrimination, shifted the burden to Judge Donnelly to prove that the same employment decisions would have been made even absent the discriminatory motive. The court of appeals ruled that Judge Donnelly failed to make this showing. The court completely disregarded Birch's testimonial admissions that her job duties actually differed from those of the other magistrates. Instead, the court focused entirely on her job performance and lack of job descriptions. This focus led to an erroneous conclusion and is a"son•y misunderstanding of the Equal Pay Act." Long v. Kohl's Food Stores, Inc. (7`n Cir. 2000), 217 F.3d 919, 924. See also, Dey v. Colt Construction & Development Co. (7`h Cir. 1994), 28 F.3d 1446, 1461 ("[i]n assessing whether two jobs require equal skill, effort, and responsibility, we look to duties actually performed by each employee, and not to his or her job description or title.") (Emphasis added). 9 Supp.2d 1346, 1353 ("Context is the key consideration in the direct evidence analysis."); Montes v. Greater Twin Cities Youth Symphonies (November 22, 2006), No. 05-866, 2006 U.S. Dist.
LEXIS 85394 at * 12 (In determining whether a decision maker's comment is direct evidence, "it is appropriate to consider the context in which the statement is made."); Mateu-Anderegg v.
School District of Whitefish Bay (7" Cir. 2002), 304 F.3d 618, 625.
There are two comments at issue in this case. The first is Birch's contention that Judge
Donnelly stated that he does not have to hire women. Judge Donnelly admits that he made the comment that he does not have to hire women. However, the remainder of Judge Donnelly's statement is that he chooses to hire women. At no time has Birch ever disputed this statement.
The Court of Appeals completely ignored this additional testimony and further ignored Judge
Donnelly's stunning record of hiring and promoting females. This is clear error. Such a statement, read in the context of the his entire statement and Judge Donnelly's unassailable record of hiring promoting and advancing female magistrates, certainly does not definitively indicate that Judge Donnelly intentionally paid women less than men. Indeed, in context, the comment is more rationally interpreted to mean exactly what he said-he chooses to hire women.5
The second statement is Birch's self-serving version of Judge Donnelly's comment about whom he relies upon to do the important work for the Court.6 Not only is Birch's testimony
51f anything, this statement is subject to multiple interpretations and, as a matter of law, cannot be direct evidence of discrimination. See Kocak v. Community Health Partners of Ohio, Inc. (6t" Cir. 2005), 400 F.3d 466, 471; Weston-Smith v. Cooley Dickenson Hospital (Dist. Mass. 2001), 153 F. Supp.2d 62, 69. 6 Birch's alleged recollection that Judge Donnelly, at the initial meeting with the female Magistrates, said I rely on the "`men' to do the important work of the Court." (Birch Dep. I, p. 94-95) conflicts with the recollection of every other individual present in the meeting, including Birch's own female witnesses (See Hilow Dep., p. 46; Polito Dep., p. 39; Koenig Dep., p. 33). Thus, it is insufficient to create a genuine issue of fact. See Anderson v. Liberty Lobby, Inc. 10 contrary to that of everyone else present for this discussion, male and female, the context of this alleged statement also precludes a finding of direct evidence of discrimination. The Front Office included both female and male magistrates, and Judge Donnelly's consistent history of promoting women to the Front Office unequivocally demonstrates that he relies upon and trusts females to tackle the complex issues confronted by the Probate Court.
Courts routinely find that discriminatory statements must be considered in the context of the employer's other managerial decisions. See Stahl v. St. Anthony Medical Center of Crown
Pointe, Inc. (7`h Cir. June 23, 2004), No. 03-1430, 2004 U.S. App. LEXIS 12890 **9-10 (when evaluating direct evidence in support of a claim of discrimination, a court looks at the context in which an allegedly discriminatory statement was made. "An employer's other hiring decisions may be a relevant part of that context.")(Citations omitted).
It is undisputed that the Front Office Department is responsible for virtually all types of actions involving the Court's jurisdiction, including complex trust litigation, approval of settlements for minors and incompetent adults, concealment of assets and declaratory judgment.
That being the case, there is no dispute that the most demanding magistrate position in the
Probate Court is the Front Office Magistrate. Consequently, the Probate Magistrates-including
Birch-view a move to the Front Office as a promotion.
During his tenure as the Administrative Judge, Judge Donnelly has appointed or promoted three lawyers to the Front Office as magistrates-two of the three, Perdexter Williams and Heidi Koenig, are female. Why would Judge Donnelly promote women to the challenging
Front Office Position if he only relied upon men to perform the important work of the Court?
(1986), 477 U.S. 242, 251-252 (Judge must decide whether the evidence presents a sufficient disagreement to require submission to the jury, or whether it is so one-sided that one party must prevail as a matter of law). 11 Actions speak louder than words. Consequently, to suggest that this alleged statement unequivocally demonstrates that Judge Donnelly paid Birch less because she is a female is nonsensical.7 At the most, this alleged statement-when considered in context with Judge
Donnelly's other managerial decisions is ambiguous and is, at most, circumstantial evidence of discrimination to be considered in connection with the other evidence in the case.s
C. PROPOSITION OF LAW NO. III: In the absence of direct evidence, plaintiffs claiming wage-based discrimination under Ohio R.C. 4112.02 must meet the equal work standard of R.C. 4111.17.
1. The "equal work" standard for wage discrimination claims establishes a higher burden than the substantial similarity standard addressed in disciplinary cases, such as Mitchell and Ercegovich.
The "substantial equality of jobs" standard differs from the "similarity" standard of
Mitchell v. Toledo and its progeny and is derived from the Equal Pay Act (the EPA), 29 U.S.C. §
206(d) (1998). Schefke v. Reliable Collection Agency, Ltd. (Haw. 2001), 96 Haw. 408, 440, 32
P.3d 52. See also Grigoletti v. Ortho Pharmaceutical Corp. (N.J. 1990), 118 N.J. 89, 570 A.2d
903, 909 (EPA standard of "substantial equality" establishes a higher degree of job similarity than the Title VII standard of "similarly situated").
'Courts have defined direct evidence of discrimination as an "outright admission by the decisionmaker that the challenged action was undertaken because of the employee's [protected characteristic.]" See Davis v. Con-Way Transp. Cent. Express, Inc. (7`h Cir. 2004), 368 F.3d 776, 783. Judge Donnelly's alleged statement certainly cannot be viewed as such an admission. eEven as circumstantial evidence, these statements do not support a claim of discrimination. The evidence in this case demonstrates that during his tenure as Administrative Judge, virtually every employment decision made by Judge Donnelly has advanced the careers of women. Judge Donnelly has only hired or promoted five magistrates while Administrative Judge. Four of those five have been female (including Ms. Williams and Ms. Koenig to the Front Office). Judge Donnelly chose to promote Ms. Koenig to the Front over three other individuals-including one male, Alan Shankman. Judge Donnelly then promoted his own law clerk Amy Mangano to the vacancy left by Magistrate Koenig in the Guardianship Department. Additionally, Judge Donnelly replaced the incumbent male Court Auditor with a female-Ann Vanik. Furthermore, following the meeting in which Birch claims that Judge Donnelly made the discriminatory statements, Birch adniits that two of the female magistrates who attended the meeting received pay increases. 12 To demonstrate sex discrimination predicated on unequal pay, a plaintiff must prove she has been the subject of wage discrimination "'between employees on the basis of sex ... for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions."' Clark, 1999 U.S. App. LEXIS 11350 at *8 (citations omitted). See also Corning Glass Works v. Brennan (1974), 417 U.S. 188, 195
(citing Stone v. Greater Cleveland Regional Transit Auth. (Cuyahoga Ct. App. 1993), 92 Ohio
App. 3d 373, 383). In contrast, the analysis of non-wage related discrimination claims under
Ohio Revised Code 4112.02 and Title VII, in the absence of direct evidence, involves a determination whether the plaintiff can prove she is similarly situated to a non-protected employee in all relevant aspects. Ercegovich v. Goodyear Tire & Rubber Co. (6th Cir, 1998), 154
F.3d 344, 353.
These are different standards, and both Ohio and federal courts have recognized this difference. Yet, the court of appeals glossed over those distinctions, noting only the "similarly situated" standard and citing an inapposite federal case involving a performance-based termination. (See Court of Appeals Decision at **8, citing Barnett v. Dept. of Veterans Affairs
(6t' Cir. 1998), 153 F.3d 338). The court of appeals did not rely on any wage discrimination cases, nor did it cite Ohio precedent to support the standard. Id. This issue was not fully addressed by the court of appeals, because the court relied on direct evidence to shift the burden to defendants. However, to the extent the court framed the elements of plaintiff's circumstantial
burden, it would require only proof of a "similarly situated" employee rather than one
performing "equal work." Whether or not this Court determines the court of appeals incorrectly
reversed on the basis of direct evidence, it is important to establish the appropriate standard
under Ohio law for proving wage-based discrimination.
13 2. Ohio and federal courts have recognized the importance of applying an equal work standard to wage-based discrimination claims, regardless of the statutory basis on which they are raised.
Wage-based discrimination claims brought pursuant to R.C. 4112.02 and 4111.17 are subject to the same standards as those applied to claims based on its Federal Equal Pay Act counterpart. Gliner v. Satin-GobainlNorton Indus. Ceramics Corp. (Cuyahoga Ct. App. June 10,
1999), Case No. 74055, 1999 Ohio App. LEXIS 2611 (citation omitted) (rev'd on other grounds
(2000), 89 Ohio St. 3d 414, 2000 Ohio 210). See also Kroh v. Continental Gen. Tire, Inc.
(Summit Ct. App. 1999), Case No. 19412, 1999 Ohio App. LEXIS 5996 at *6 (claims alleging unequal pay, pursuant to either R.C. 4111.17 or R.C. 4112.02, are subject to the analysis employed under the Federal Equal Pay Act, Section 206, Title 29, U.S. Code).9
Consistent with Ohio and Sixth Circuit precedent, the Third District Court of Appeals heard and rejected a public employee's argument that she was not required to meet the Equal Pay
Act standard of "equal work" because she sought relief for her wage discrimination claim under
R.C. 4112.02. Snyder v. The City of Lima (Allen Ct. App. Nov. 14, 2000), 2000 Ohio 1789, 2001
Ohio App. LEXIS 5267. The Snyder court ruled that: "In order to show a prima facie case of
discrimination based on the sex of an employee under R. C. Chapter 4112 or the Equal Pay Act,
the employee must show that `different wages were paid to employees of opposite sexes for
substantially equal work."' Id. at *11 (emphasis added) (citing Henry v. Lennox Industries (6`h
Cir. 1985), 768 F.2d 746). See also Clark, 1999 U.S. App. LEXIS 11350 at *9-10 (the pertinent
'Although this Court did not characterize Kroh's burden as an equal work standard, because it found she occupied a unique position, the Kroh opinion did emphasize that the "relevant aspects" of a similarly situated analysis depends on the facts of the case. Kroh is not inconsistent with the requirement that a plaintiff claiming wage disparity prove she is performing equal or substantially similar work in comparing herself with her more highly compensated co- workers. Kroh v. Continental General Tire, Inc. (2001), 92 Ohio St. 30, 32. 14 question under either Title VII or the Equal Pay Act is whether Clark's work was "substantially equal" to those with whom she compares herself, not "substantially similar.")
The Sixth Circuit remains consistent on this point and explained, in Conti, 2002 U.S.
App. LEXIS 20189, that in traditional Title VII cases, the factors to be considered in deciding whether or not employees are similarly situated (same supervisors, etc.) have no relevance in cases involving claims of wage discrimination in violation of Title VII:
These factors have little, if any, relevance to the inquiry of whether employees are similarly-situated for purposes of resolving a gender-based wage discrimination claim under Title VII. In making this determination, we find the relevant factors to include those aspects of the employment situation which must be examined in determining whether the plaintiff and a male employee performed "equal work" as that term is defined for purposes of the Equal Pay Act. Thus, the relevant factors include the skill, effort, and responsibilities of each job and the working conditions under which each job is performed.
Id. at **22-23 (Emphasis added).10
Simply put, Birch's admissions prove that her job is not equal to those of other magistrates and, therefore, make the incorrect standard of proof used by the court of appeals even more confusing and potentially harmful as precedent.
V. CONCLUSION
For the foregoing reasons, Judge Donnelly respectfully requests that this Court accept jurisdiction over this case so that the important issues presented will be reviewed on the merits.
10The only Sixth Circuit wage discrimination case to diverge from this position is the Sixth Circuit's decision in Birch I. That opinion is not controlling here, both because it represents a federal court predicting Ohio law and, as the court of appeals noted below, because the facts in the record have changed since Birch I was decided. Oddly, the Birch I court relied on Conti, to decide that Birch did not have to prove she performed equal work, because she presented "highly probative evidence of sexual bias." See Birch I, 392 F.3d at 165. That reasoning essentially takes the analysis back to direct evidence and allows a wage discrimination plaintiff to proceed under a diminished burden of proof. 15 4T7 Respectfully sub
DA L. WOEBER (0039112) M. WOL (0 06845) MONTGOMERY, RENNIE & JONSON S P. SMITH 00 945) Counsel for Appellant, Judge John J. LER MENDE ON Donnelly, in his Individual Capacity sel for Appellant, Cuyahoga 36 East Seventh Street, Suite 2100 County Probate Court and Judge John Cincinnati, Ohio 45202 J. Donnelly, in his official capacity Tel: (513) 241-4722 1100 Superior Ave., 20th Floor Fax: (513) 241-8775 Cleveland, Ohio 44114 E-mail: [email protected] Tel: (216) 696-7600 Fax: (216) 696-2038 E-mail: rwolffglittler.com [email protected] CERTIFICATE OF SERVICE
A copy of the foregoing Memorandum in Support ofJurisdiction ofAppellants Cuyahoga
County Probate Court and Judge John J. Donnelly was served upon Caryn M. Groedel, Esq.,
CARYN GROEDEL & AsSOCIATES, 5910 Landerbrook Drive, Suite 200, Cleveland, OH 44124,
Attorney for Appellee, by regular U.S. Mail, postage pre-paid, this 16th day of January 2008.
James P mith ONE THE ATTORNE* FQf APPELLANTS
84069410 COURT OF APPEAL'S DECISION (DATE STAMPED COPY) Cn.aurt of Apv.ea1s of (94ia
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 88854
WANDA J. BIRCH
PLAINTIFF-APPELLANT
vs.
CUYAHOGA COUNTY PROBATE COURT, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-554591
BEFORE: Moore, J., Slaby, P.J., and Dickinson, J.* (*Sitting by assignment: Judges of the Ninth District Court of Appeals)
RELEASED: November 21, 2007 JOURNALIZED: OFC 3 - 2007 CA06088854111111111111111111111 48905187 l^:^^ 64 7 26 0 6 8 9 -1-
ATTORNEYS FOR APPELLANT
Caryn M. Groedel Candace L. Brown Jennifer L. Speck Caryn Groedel & Associates Co., LPA 5910 Landerbrook Drive Suite 200 Cleveland, OH 44124
Thomas K. Mast 111 South Buckeye Street Suite 240 Wooster, OH 44691
ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY PROBATE COURT
Robert M. Wolff James P. Smith Littler Mendelson, P.C. 1100 Superior Avenue 20`h Floor Cleveland, OH 44114
W0647 RB0690 -11-
ATTORNEY FOR APPELLEE JUDGE JOHN J. DONNELLY
Linda L. Woeber Montgomery, Rennie & Jonson 36 East Seventh Street Suite 2100 Cincinnati, OH 45202
FILED AND JOURNALIZED PER APP. B. 22(E) DEC 3 - 2007
GERALD E. FUERST CLERK OF^.T^1E OpUryIT OF APPEALS BY L^t.^ ^ DcP.
ANPdOUNCE9QENf OF DECISION PERAPPREC^^'FVEID 2^ NOV 2 12007
RALD H. FUERST CLEFUCD0,TB9E COURT OF APPEALS DER
CA06088854 48679736 11111111111111 Mil 1U11 ^^^^^ ^^^^^ ^^^^^ ^^^^^ 1111101
N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
VOLA 64 7 RG 0 6 9 1 -1-
PER CURIAM:
Plaintiff-appellant, Wanda Birch, appeals the judgment of the Cuyahoga
County Court of Common Pleas that granted summary judgment to defendants- appellees, the Cuyahoga County Probate Court and Judge John Donnelly. We affirm in part and reverse in part.
Judge Donnelly has been the presiding judge of the probate court since
1991. In that capacity, he is responsible for the appointment and supervision of magistrates. The chief magistrate/court administrator, John Polito, provides direct supervision to the magistrates. The probate court is divided into several departments based on court function: the "Front Office" handles contested cases that would otherwise be heard by a probate judge, as well as the psychiatric, guardianship, adoptions, accounts, and release of assets departments. Magistrates are appointed to serve in a specific department of the probate court, but may, at times, provide backup to other departments.
Appellant was hired as a magistrate in 1993 at a starting salary of
$35,000. She has worked in the release of assets department throughout her tenure, but has also presided over adoption and name change matters as assigned and a limited number of front office cases. In 1998, one of appellant's colleagues came into possession of the results of a wage study of Cuyahoga
A[@647 P90692 -2-
County magistrates. The documentation indicated that all female probate court magistrates were paid lower salaries than all male magistrates and that the highest paid female magistrate earned less than her lowest paid male counterpart. Appellant, whose yearly salary was then $39,000, was the lowest paid of all magistrates employed by the probate court.
After learning of the apparent salary disparities, appellant and three of her female colleagues met with Judge Donnelly and Magistrate Polito to request an explanation. Heated words were exchanged during the meeting, although witnesses disagree about precisely what was said and the context in which certain comments were made. Some wage and position changes occurred in the years following the meeting, but appellant remained the lowest paid magistrate.
On July 12, 2001, appellant filed a complaint against appellees in the
Federal District Court for the Northern District of Ohio, Eastern Division, alleging violations of the Equal Pay Act, 29 U.S.C. §206(d)(1) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-2a, premised upon wage discrimination. Appellant alleged corresponding violations of the Ohio
Civil Rights Act, R.C. 4112.02. In addition, appellant asserted claims for: (1) retaliation, under 42 U.S.C. §1983 and the Ohio Civil Rights Act; (2) age
0647 PP0693 -3- discrimination, in violation of the Age Discrimination in Employment Act, 29
U.S.C. §621; (3) race discrimination, in violation of Title VII and the Ohio Civil
Rights Act; and (4) intentional infliction of emotional distress.
The district court granted summary judgment to appellees on all claims, and appellant appealed to the United States Court of Appeals for the Sixth
Circuit. On December 1, 2004, the Sixth Circuit released an opinion in which it affirmed the judgment of the district court with respect to appellant's claims for wage discrimination under Title VII and the Equal Pay Act, her race and age discrimination claims and her claim alleging intentional infliction of emotional distress. See, generally, Birch v. Cuyahoga Cty. Probate Court
(C.A.6, 2004), 392 F.3d 151 ("Birch P'). The Sixth Circuit reversed the judgment of the district court, however, with respect to appellant's claim of sex discrimination under the Ohio Civil Rights Act. On remand, the district court dismissed appellant's remaining claim without prejudice.
Appellant filed a new action in the Cuyahoga County Court of Common
Pleas on February 14, 2005, alleging wage-based sex discrimination in violation of the Ohio Civil Rights Act and the Ohio Fair Minimum Wage Standards Act,
R.C. 4111.17. On May 10, 2005, appellant moved the trial court to "preclude defendants from filing a, dispositive motion" with respect to her sex
Va,@647 P00694 -4- discrimination claim under the Ohio Civil Rights Act, arguing that the decision in Birch I precluded dispositive motions under the doctrines of collateral estoppel and the law of the case. On May 11, 2006, the trial court denied appellant's motion and granted appellees leave to file motions for summary judgment. Appellees filed a joint motion for summary judgment on June 26,
2006, and appellant responded on July 26, 2006. The trial court granted summary judgment to appellees on September 11, 2006. This appeal followed.
ASSIGNMENT OF ERROR
"The Trial Court erred in granting Appellees' Motion for Summary
Judgment with respect to Appellant's gender discrimination and Equal Pay Act claim."
In her single assignment of error, appellant maintains that the trial court erred by granting summary judgment to appellees on her claim under the Ohio
Fair Minimum Wage Standards Act because the trial court wrongly determined that professionals are excluded from the definition of "employees" under the
Act. Appellant argues that the trial court erred by granting summary judgment
on her claim of wage-based sex discrimination under the Ohio Civil Rights Act because the trial court was bound by the decision of the United States Court of
Appeals for the Sixth Circuit in Birch I. Appellant also asserts that summary
YU647 F.00695 -5- judgment was inappropriate because reasonable minds could conclude that she has established a prima facie case of sex discrimination.
Summary Judyment Standard
In reviewing a trial court's ruling on a motion for summary judgment, this court applies the same standard a trial court is required to apply in the first instance: whether there were any genuine issues of material fact and whether the moving party was entitled to judgment as a matter of law. Parenti v.
Goodyear Tire & Rubber Co. (1990), 66 Ohio App.3d 826, 829. In applying this
standard, evidence is construed in favor of the nonmoving party, and summary judgment is appropriate only if reasonable minds could only conclude that judgment should be entered in favor of the movant nonetheless. Horton U.
Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 686-87.
The moving party "`bears the initial burden of informing the trial court of
the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential
element(s) of the nonmoving party's claims."' Vahila v. Hall (1997), 77 Ohio
St.3d 421, 429, quoting Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. The
nonmoving party then has a reciprocal burden to set forth specific facts, by
affidavit or as otherwise provided by Civ.R. 56(E), which demonstrate that there
10647 QG0696 -6- is a genuine issue for trial. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, at 110.
Ohio Fair Minimum Wave Standards Act
R.C. 4111.17(A), which prohibits wage discrimination on the basis of race, color, religion, sex, age, national origin, or ancestry, provides:
"(A) No employer, including the state and political subdivisions thereof, shall discriminate in the payment of wages on the basis of race, color, religion, sex, age, national origin, or ancestry by paying wages to any employee at a rate less than the rate at which the employer pays wages to another employee for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar conditions."
The term "employees," as defined by R.C. 4111.01(D),' includes "any individual employed by an employer," but does not include "any individual employed *** in a bona fide executive, administrative or professional capacity as such terms are defined by the Fair Labor Standards Act." The Fair Labor
Standards Act contains a similar exception for bona fide executive, administrative and professional employees, but specifically provides that this exception does not apply to the discrimination provisions of the Equal Pay Act.
lEffective April 7, 2007, this provision is found in R.C. 4111.03(D)(3)(d).
'vx@647 P60697 -7-
29 U.S.C. §213(a)(1). The Ohio Revised Code does not contain a corresponding restriction.
Appellant is correct in principle that case law interpreting the Equal Pay
Act is used to interpret R.C. Chapter 4111. See Creech v. Ohio Cas. Ins. Co.
(S.D.Ohio 1996), 944 F.Supp. 1347, 1353. This is only the case, however, to the extent that the terms of the statutes are consistent. See Genaro v. Cent.
Transport, Inc. (1999), 84 Ohio St.3d 293, 298. Where the terms diverge, we must apply the statute as written. .
Appellant does not dispute that she is a bona fide professional as defined by the Fair Labor Standards Act. Consequently, under the clear terms of R.C.
4111.01(D) she is exempt from coverage under R.C. Chapter 4111, and the trial court properly awarded summary judgment to appellees on this claim.
Ohio Civil Rights Act
Appellant also maintains that the trial court erred by awarding summary judgment to appellees on her claim of sex discrimination in violation of the Ohio
Civil Rights Act. Specifically, appellant maintains that when the evidence
before the trial court on appellees' motion for summary judgment is considered
in the light most favorable to her, reasonable minds could conclude that she has
established a prima facie case of sex discrimination.
YU647 P6©698 -8-
As an initial matter, we address appellant's argument that the trial court was precluded from entering summary judgment in favor of appellees by the decision of the Sixth Circuit in Birch I. Issue preclusion is an aspect of the doctrine of the law of the case, which provides that "`the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels."'
Hubbard ex rel. Creed v. Sauline (1996), 74 Ohio St.3d 402, 404, quoting Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3. When subsequent proceedings involve an expanded record or different legal issues, the doctrine of the law of the case does not apply. Johnson v. Morris (1995), 108 Ohio App.3d 343, 349.
Assuming for purposes of this opinion that issue preclusion applies when a federal case is followed by a case filed in state court, we conclude that issue preclusion does not prevent summary judgment in this case because the Sixth
Circuit's opinion in Birch I was based on the record before it at the time - a record which has since expanded to include a second deposition of appellant and the deposition of Judge Donnelly. Nevertheless, although the trial court was not bound to reach the same conclusion as the Sixth Circuit, we agree that there are genuine issues of material fact with respect to whether appellant set forth
0l0647 P30699 -9-
a prima facie case of sex discrimination and whether appellees have rebutted
the same.
R.C. 4112.02(A) prohibits discrimination because of sex "with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter
directly or indirectly related to employment.°" Ohio courts apply federal case law interpreting Title VII of the Civil Rights Act of 1964 to claims arising under
R.C. Chapter 4112 to the extent that the terms of the statutes are consistent.
Genaro, 84 Ohio St.3d at 298, citing Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St. 2d 192,
196.
A plaintiff alleging sex discrimination bears the burden of setting forth
a prima facie case of discrimination by either direct or circumstantial evidence.
Chang v. Univ. of Toledo (N.D.Ohio 2007), 480 F.Supp.2d 1009, 1013, citing
McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802. In order to
establish a prima facie case of sex discrimination using indirect evidence a
plaintiff must demonstrate (1) that she is a member of a protected class; (2) that
she was qualified for the position in question; (3) that she suffered an adverse
employment action despite her qualifications; and (4) that she was treated less
favorably than a similarly situated individual outside the protected class.
WS6 4 7U0700 -10-
Barnett v. Dept. of Veterans Affairs (C.A.6, 1998), 153 F.3d 338, 341. If the plaintiff successfully establishes a prima facie case, the employer must articulate a legitimate, nondiscriminatory justification for the employment action. Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 253.
The plaintiff may then prove, by a preponderance of the evidence, that the justification articulated by the employer is a pretext for discrimination. Id. At all times, however, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff' remains with the plaintiff. Id.
If a plaintiff produces direct evidence of discrimination, she need not satisfy the four-part test for establishing a prima facie case using indirect evidence. Rowan v. Lockheed Martin Energy Systems, Inc. (C.A.6, 2004), 360
F.3d 544, 548. "[A]n employee who has presented direct evidence of improper motive does not bear the burden of disproving other possible *** reasons for the adverse action. Rather, the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive." Weigel u. Baptist Hosp. of East Tennessee
(C.A.6, 2002), 302 F.3d 367, 382 (analyzing direct and indirect methods of proof
^Y14 6 4 7f 0 0 7 0 1 -11- in the context of retaliation claims), citing Jacklyn v. Schering-Plough Health
Care Products (C.A.6, 1999), 176 F.3d 921, 926.
Direct evidence is "that which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's
actions." Jacklyn, 176 F.3d at 926. In all cases, the plaintiff "must prove a
causal link or nexus between evidence of a discriminatory statement or conduct
and the prohibited act of discrimination." Byrnes v. LCI Communications
Holdings Co. (1996), 77 Ohio St.3d 125, 130. Explicit statements of
discriminatory intent constitute such direct evidence of discrimination. See
Johnson v. Univ. of Cincinnati (C.A.6, 2000), 215 F.3d 561, 577, n2; Wittman v.
Akron, Summit App. No. 21375, 2003-Ohio-5617, at ¶ 16. Such statements are
distinguished from harmless, stray remarks by the nexus between the improper
motive and the decision making process or personnel. Accordingly, courts
consider: (1) whether the comments were made by a decision maker; (2)
whether the comments were related to the decision making process; (3) whether
they were more than vague, isolated, or ambiguous; and (4) whether they were
proximate in time to the act of alleged discrimination. See Peters v. Lincoln
Elec. Co. (C.A.6, 2002), 285 F.3d 456, 477-478, citing Cooley v. Carmike
Cinemas, Inc. (C.A. 6, 1994), 25 F.3d 1325.
V0647 P,60702 -12-
As direct evidence of discrimination, appellant points to two comments made by Judge Donnelly in the context of his meeting with the female magistrates in 1998. Specifically, appellant maintains that in response to the magistrates' inquiry about the wage disparity, Judge Donnelly stated that he did not need to hire women. Appellant also asserts that Judge Donnelly stated in explanation that he relied on the men to do the important work of the court.
Other witnesses agreed that similar comments were made, but disagree regarding the context in which the statements occurred and their intended meaning.
Appellant alleges that these comments evidence blatant gender bias in connection with wages and are sufficient in themselves to satisfy her burden of
establishing a prima facie case of discrimination. Appellees dispute the import
of these statements, maintaining that Judge Donnelly's actual view of women
is borne out by a long record of hiring females in general. They argue that
when Judge Donnelly referenced giving the important work of the court to the
men, he actually meant that he relied on the front office magistrates, four of
whom, at that time, were male. Appellees also maintain that, regardless, these
comments are not direct evidence of discrimination.2
2This assertion alone, however, is not enough to defeat appellant's claim on (continued...)
W1@1647 P,E0703 -13-
These statements must be viewed in a light most favorable to appellant.
Considering the four factors outlined above, we are compelled to agree that reasonable minds could conclude that appellant has produced direct evidence of discrimination. The comments were made by the individual who held responsibility for appointing magistrates and for determining their compensation during a meeting convened for the purpose of discussing wage disparities among male and female magistrates. The comments were directed to four employees, including appellant, after the magistrates presented Judge
Donnelly with the wage study results and requested an explanation. Viewing these comments in the light most favorable to appellant as the nonmoving party, it requires no inference to conclude that these comments reveal discriminatory animus, and the nexus between the comments and the alleged acts of discrimination is not insignificant. At minimum, therefore, we conclude that there is an issue of fact regarding the statements that were made and the immediate context in which they occurred.
Z(...continued) summary judgment. Comments that may not constitute direct evidence of discrimination may, nevertheless, create issues of fact with respect to circumstantial evidence of discriminatory intent. See, e.g., Brown v. Packaging Corp. of Am. (C.A.6 2003), 338 F.3d 586, 589-590.
V06 4 740704 -14-
"In direct evidence cases, once a plaintiff shows that the prohibited classification played a motivating part in the employment decision, the burden of both production and persuasion shifts to the employer" to prove that it would have made the employment decision in the absence of any discriminatory motivation. Chang, 480 F.Supp.2d at 1013. Accordingly, appellees maintain that even if appellant met her burden of setting forth a prima facie case of discrimination, summary judgment was appropriate because they have met their burden of demonstrating that her wage level would have been the same regardless of any possible discriminatory animus.
Appellees' proffered justification for the salary differential between appellant and her male colleagues is twofold. With respect to magistrates in general, appellees maintain that salaries were determined based on the professional experience of the magistrates and the relative levels of responsibility among the various probate court departments. With respect to appellant particularly, appellees maintain that her lower salary reflects a personally low level of job performance. Appellees' assertions supported by documentary evidence might have established these facts beyond dispute. Due to a history of regrettably minimalist supervisory employment practices,3
3The record demonstrates that there are no job descriptions for magistrates, no (continued...)
,VRL@ 6 47 PiG0705 -15- however, the record is barren of evidence apart from the assertions of Judge
Donnelly and Magistrate Polito to this effect. These assertions do not establish that appellees would have taken the same action in the absence of discriminatory motive. They do, however, create a genuine issue of material fact that precludes summary judgment.
In conclusion, appellant's assignment of error is overruled with respect to her claims arising under R.C. 4111.17. Her assignment of error is sustained with respect to her claims arising under R.C. Chapter 4112. The judgment of the trial court is affirmed in part, reversed in part and this case is remanded to the trial court for further proceedings consistent with this opinion.
Costs divided equally between appellant and appellees.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
3(...continued) written description of the work performed by the various departments, and no protocol for determining magistrate salaries. Employees are not evaluated and the court does not produce written documentation of performance concerns.
F,`O647 R60706 -16-
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
CARLA D. MOORE, JUDGE*
CLAIR E. DICKINSON, J.*, CONCURS
LYNN C. SLABY, J.*, CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
(*Sitting by assignment: Judges of the Ninth District Court of Appeals)
LYNN C. SLABY, J., CONCURRING IN PART AND DISSENTING IN PART:
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.
%@641 P,60707 -17-
Comments by a decision maker may, in rare circumstances, constitute direct evidence of discrimination, but such comments must be truly unequivocal
-"`clear, pertiiient, and directly related to the decision-making personnel or process."' Klaus v. Hilb, Rogal & Hamilton Co. of Ohio (S.D.Ohio 2006), 437
F.Supp.2d 706, 725, quoting Dobbs-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 Correctional Inst.
(S.D.Ohio 2006), 434 F.Supp.2d 509, 514-15, quoting Smith v. Chrysler Corp.
(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. U.S. Dept. of Labor, 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).
The connection between the comments and the act of discrimination must be absolutely clear, requiring no inference or presumption. Vasquez v. Cty. of
Los Angeles (C.A.9, 2003), 349 F.3d 634, 640; Johannes, 434 F.Supp.2d at 514.
1,0547 P60708 -18-
"`[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/EAerospace, Inc. (C.A.11, 2004), 376 F.3d 1079,
1086, quoting Rojas v. Florida (C.A.11, 2002), 285 F.3d 1339, 1342, fn2.
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. See Hopson 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.
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. See Barnett 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, citing
'Y605 4 7000709 -19-
Ercegovich 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." Barrichs U. Eli Lilly and
Co. (C.A.7, 2007), 481 F.3d 556, 560.
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.
I would affirm the judgment of the trial court in its entirety.
'VK-® 6 4 7 PG 0 7 10