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Leiper v. Concrete

July 18, 2006

JANE E. LEIPER, PLAINTIFF,
v.
SLOTER CONCRETE, DEFENDANT.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Mark R. Abel

OPINION AND ORDER

This matter is before the Court for consideration of a motion for summary judgment filed by Defendant, Sloter Concrete. (Doc. # 48.) For the reasons that follow, the Court GRANTS the motion.

I. Background

Beginning in September 1999, Plaintiff, Jane Leiper, worked for Defendant, Sloter Concrete, in a Dispatching Order Entry position. In this position, Plaintiff assisted the company dispatchers and performed various clerical tasks. In late 2003, however, Defendant eliminated Plaintiff's job and began looking for a full-time dispatcher, a more complicated job performing substantively different functions than the Dispatching Order Entry position. Plaintiff was fifty-one years old at the time of her permanent layoff. Defendant eventually hired a younger male to fill the newly created dispatcher position.

Plaintiff subsequently filed charges with the Ohio Civil Rights Commission on March 9, 2004, alleging wrongful discharge due to sex and age discrimination. (Doc. # 1, Ex. A.) On December 16, 2004, Plaintiff received a right to sue letter and, on May 11, 2005, Plaintiff filed the instant action. (Doc. # 1.)

Proceeding pro se, Plaintiff has neither separated her pleading into individual counts nor identified with specificity the specific statutory provisions under which she is proceeding. Her complaint states a claim for sex discrimination and a claim for age discrimination, however. Defendant moved for summary judgment on both counts (Doc. # 48), and Plaintiff failed to file a memorandum in opposition. The motion is now ripe for disposition.

II. Standard Involved

Summary judgment is appropriate "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

In viewing the evidence, the Court must draw all reasonable inferences in favor of the nonmoving party, which must set forth specific facts showing that there is a genuine issue of material fact for trial. Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The judge is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Campbell v. Hamilton Co., Ohio, 23 Fed. Appx. 318, 323 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Consequently, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Hamad, 328 F.3d at 234-35 (quoting Anderson, 477 U.S. at 251-52).

III. Discussion

As noted, Plaintiff asserts a claim for sex discrimination, alleging that she was replaced by the male who filled the dispatcher position. Such a claim falls under Title VII, which provides in pertinent part that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Accordingly, Plaintiff must establish a prima facie case by demonstrating that "(1) she is a member of a protected class, (2) she was subjected to an adverse employment action, (3) she was qualified, and (4) she was treated differently than similarly-situated male ... employees for the same or similar conduct." Martin v. General Elec. Co., No. 05-3834, 2006 WL 1818081, at *5 (6th Cir. July 3, 2006).

Plaintiff also asserts a claim for age discrimination, pleading that Defendant laid her off and did not rehire her for the new position because she was 51 years old at the time. After Plaintiff was laid off, Defendant hired the 40-year-old male for the new dispatcher position. This claim falls under the Age Discrimination in Employment Act, which prohibits employers from discriminating "against any individual with respect to

[her] compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. ยง 623(a). To demonstrate all the elements of a prima facie case of age discrimination, Plaintiff must show that (1) she was a member of the protected class; (2) she was subjected to an adverse employment action; (3) she was qualified for the particular position; and (4) she was replaced by a person who is not a member of the protected class or that similarly situated non-protected employees were treated more ...


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