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Thomas v. Ohio Civil Rights Commission

June 20, 2006


The opinion of the court was delivered by: Judge Smith

Magistrate Judge Abel


Pro se plaintiff asserts, inter alia, that defendants discriminated against her in her employment because of her race, sex and disability, and that they retaliated against her for engaging in protected activities. Defendants move for summary judgment (Doc. 29). For the reasons that follow the Court grants defendants' summary judgment motion.

I. Facts

A. Parties

Plaintiff is an individual citizen of the State of Ohio. She is African-American.

The remaining defendants are Nationwide Mutual Insurance Company ("Nationwide"), and the following individual Nationwide employees: Donna J. Willmarth, Marcia J. (Smith) Jones, Nichole Nares, Michael E. Johnson, and Thomas C. Brandyberry.

B. Salaries at Nationwide

Nationwide assigns a job classification for each employment position. The job classification summarizes the most important features of the job, including minimum requirements, duties, and responsibilities. Each job classification is also assigned to a pay band, which is a salary range having a minimum and maximum rate of pay. There are nine pay bands, A through I. A market reference value ("MRV"), which represents the compensation range ordinarily paid in the marketplace for a similar job, is determined for each job classification.

Near the beginning of each calendar year, associates and their managers set annual objectives in accordance with Nationwide's strategic initiatives. They identify competencies that are critical to the success of the associate, the associate's business unit, and Nationwide. Managers and associates also set both individual and group objectives for the business unit for each associate.

Group objectives are set for a team or business unit as a whole. Each associate receives the group's performance rating on these objectives regardless of the individual associate's contributions to the group. Individual objectives are linked to Nationwide's objectives, and individual performance is linked to pay. Performance for the calendar year is rated quarterly, and then during the first quarter of the following calendar year using one of the following ratings:

0 = Does Not Meet performance expectations 1 = Achieves performance expectations 2 = Exceeds performance expectations Calendar year 2001 performance was rated by managers from January 2002 through March 2002. Generally, a performance summary meeting is held between the associate and the unit manager. During the meeting, associates are informed of whether a merit increase has been awarded and, if so, the amount of the increase. A "merit increase" is an adjustment to base salary as the result of individual performance that benefits the business unit and organization. As part of the calendar year budget process, each business unit is allocated a salary expense budget for associate salaries in the business unit for the calendar year. From January to March, each business unit is informed of the salary expense budget. Each manager must then make judgments concerning merit increase allocations within the limits of the salary expense budget.

C. Plaintiff's Employment

Nationwide Financial Services ("NFS") hired plaintiff on May 16, 2000. NFS is the life insurance and retirement savings arm of Nationwide. NFS hired plaintiff into the Systems and Programming Unit ("Unit"). Due to an error in the job title in plaintiff's offer of hire letter, she began working at NFS as a "Programmer." On March 5, 2001, plaintiff was transferred to the job classification "Programmer Analyst," which is one level above the Programmer position. Plaintiff was responsible for supporting the delivery of electronic interfaces to broker dealers, communicating with customers, and correcting production problems.

A Programmer Analyst is assigned to pay band E. In 2000, the MRV for a Programmer Analyst was $42,700 to $47,400. NFS hired plaintiff at an annual salary of $51,000, which was above the MRV.

In about February 2001, a restructuring occurred at Nationwide. As a result, Mr. Johnson was replaced as Unit Manager by Marchia Jones (who is African-American). Ms. Jones supervised plaintiff throughout 2001 until late October/early November. Thomas C. Brandyberry (who is White) then replaced Ms. Jones as the Unit Manager. The Unit Director was Ms. Donna Willmarth. Ms. Jones identified what she believed to be a number of problems with plaintiff's individual job performance during calendar year 2001. In October 2001, Ms. Jones drafted a work improvement program ("WIP") for plaintiff that was designed to address and correct plaintiff's performance issues.

Ms. Jones presented the WIP to Human Resources for review. However, before the WIP could be presented to plaintiff, the organizational restructuring occurred. Ms. Jones moved to another work unit and was replaced by Mr. Brandyberry. Plaintiff's performance problems allegedly continued after Mr. Brandyberry became Plaintiff's Unit Manager in late 2001.

NFS was adversely affected by the overall business downturn in 2001. As a result of the economic downturn, NFS instituted a long-term hiring freeze, significantly reduced staff, and allocated very little money for merit increases.

In 2002, plaintiff's business unit was budgeted $1,159,180 for associates' pay. The total salary expense for plaintiff's unit in 2001 was $1,151,741. As a result, only $7,440 (0.6% of the salary budget) was budgeted for merit increases among the nineteen associates and managers in the Systems and Programming Unit.

Mr. Brandyberry had been plaintiff's Unit Manager for only about a month in 2001. Ms. Jones consulted with him concerning plaintiff's final 2001 performance evaluation ratings. On March 21, 2002, Mr. Brandyberry met with plaintiff to review her 2001 job performance. Mr. Brandyberry provided plaintiff with a copy of her Objectives Worksheet and discussed what was perceived to be the inconsistent quality of plaintiff's work. Plaintiff was rated as an "Achieves" performer. Mr. Brandyberry informed plaintiff she would not receive a merit increase. Plaintiff was rated low on individual objectives. Her overall performance rating, however, was boosted by the high ratings that were given to the Unit's group objectives.

Relatively little money was budgeted for merit increases in the Systems and Programming Unit for 2002. For this reason, only three individuals out of the nineteen members of the Systems and Programming Unit received merit increases on April 1, 2002. Of the nineteen associates in the Unit, four individuals were rated as "Exceeds" performers, and the remaining fifteen individuals, including Plaintiff, were rated as "Achieves" performers. Of the four "Exceeds" performers, three of them received 4% merit increases. The fourth "Exceeds" performer was supervised by Mr. Brandyberry and did not receive a merit increase.

There were six Programming Analysts, including plaintiff, in plaintiff's Unit. All of them were "Achieves" performers, and none of them received a merit increase. Three of these individuals were supervised by Mr. Brandyberry and three of them were supervised by Mr. Sigler. None of the fifteen "Achieves" performers in the Unit, including the Unit Managers, received a merit increase.

In late March/early April 2002, another meeting was held at plaintiff's request with Nichole Nares, Director of NFS Human Resources, Mr. Brandyberry, and Ms. Willmarth to discuss the reasons plaintiff had not been awarded a merit increase. Examples of plaintiff's performance deficiencies were discussed during the meeting.

Plaintiff was being paid at the 2002 midpoint ($51,000) for salary band E, although she had slipped slightly below the 2002 MRV. Plaintiff resigned from her employment with Nationwide on or about June 22, 2002.

On November 22, 2002, plaintiff filed a charge of discrimination alleging race discrimination with respect to the merit increase issue, but did not include any allegation regarding her resignation from employment. The EEOC issued a right to sue letter on June 23, 2004. The Clerk's office received plaintiff's complaint on September 28, 2004. The complaint was filed on September 30, 2004.

II. Summary Judgment

The standard governing summary judgment is set forth in Fed. R. Civ. P. 56(c), which provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, and must refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). The Court disregards all evidence favorable to the moving party that the jury would not be not required to believe. Id. Stated otherwise, the Court must credit evidence favoring the nonmoving party as well as evidence favorable to the moving party that is uncontroverted or unimpeached, if it comes from disinterested witnesses. Id.

The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.

Additionally, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586).

Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. at 1479-80. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).

III. Discussion

A. Failure to Exhaust Administrative Remedies

Defendants first argue that plaintiff's federal discrimination and retaliation claims other than her claim of racial discrimination are subject to dismissal because plaintiff failed to exhaust her administrative remedies.

A judicial complaint must be limited to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination. Ang v. Proctor & Gamble Co., 932 F.2d 540, 546-47 (6th Cir. 1991). "[W]here facts related with respect to the charged claim would prompt the EEOC to investigate a different, uncharged claim, the plaintiff is not precluded from bringing suit ...

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