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Hunter v. Bureau of Workers' Compensation

Court of Claims of Ohio

December 14, 2016

DOUG HUNTER Plaintiff
v.
BUREAU OF WORKERS' COMPENSATION Defendant

          Sent to S.C. Reporter 1/10/17

          DECISION

          Dale A. Crawford, Judge

         {¶1} Now before the Court is a Motion for Summary Judgment filed, pursuant to Civ.R. 56, by Defendant, Bureau of Workers' Compensation. Reply briefs have been submitted and reviewed. The Court previously granted Defendant's Motion for Partial Judgment on the Pleadings, dismissing Plaintiff's claim of Wrongful Discharge in Violation of Public Policy. The present motion concerns Plaintiff's remaining claims; 1) reverse race discrimination, pursuant to R.C. 412.02(A) and R.C. 4112.99, and 2) a spoliation claim related to documents allegedly destroyed by Defendant.

         Summary Judgment Standard

         {¶2} Under Civ.R. 56(C), summary judgment is proper "if the pleadings, depositions, answer to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, 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." Thus, in order to determine whether Defendant is entitled to judgment as a matter of law pursuant to Civ.R. 56(C), the Court must ascertain whether the evidentiary materials presented by Defendant show that there is no genuine issue as to any material fact involved in the case. In making this determination it is necessary to analyze the landmark Ohio Supreme Court decision which addresses the "standards for granting summary judgment when the moving party asserts that the nonmoving party has no evidence to establish an essential element of the nonmoving party's case." Dresher v. Burt, 75 Ohio St.3d 280, 285, 1996-Ohio-107, 662 N.E.2d 264 (1996); see also Saxton v. Navistar, Inc., 2013-Ohio-352, 986 N.E.2d 611 (10th Dist.), ¶ 7.

         {¶3} In Dresher, the Ohio Supreme Court held:

         {¶4} "[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 before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. * * * [T]he moving party bears the initial burden of demonstrating that there are no genuine issues of material fact concerning an essential element of the opponent's case. To accomplish this, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. * * * The assertion must be backed by some evidence of the type listed in Civ.R. 56(C) which affirmatively shows that the nonmoving party has no evidence to support that party's claims." Dresher, supra, at 292-293.

         {¶5} In interpreting the United States Supreme Court decision in Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986), the Dresher Court found no express or implied requirement in Civ.R. 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. Dresher, supra, at 291-292. Furthermore, the Dresher Court stated that it is not necessary that the nonmoving party produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Id. at 289, quoting Celotex. In sum, the Dresher Court held that the burden on the moving party may be discharged by "showing"-that is, pointing out to the Court-that there is an absence of evidence to support the nonmoving party's case. Id.

         {¶6} "If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied." Id. at 293. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden as outlined in Civ.R. 56(E):

         {¶7} "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon mere allegations or denials of his pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party."

         Reverse Race Discrimination

         {¶8} In order to establish a case of reverse race discrimination, where the Defendant discriminates against the majority, Plaintiff must show, 1) background circumstances which establish that BWC was the unusual employer who discriminated against non-minority employees, 2) that BWC took an adverse action with respect to Plaintiffs employment, 3) that Plaintiff was qualified for the position, and 4) that BWC treated Plaintiff disparately than other similarly situated employees. Pohmer v. JPMorgan Chase Bank, N.A., 10th Dist. Franklin No. 14AP-429, 2015-Ohio-1229, ¶ 32, citing Mowery v. Columbus, 10th Dist. Franklin No. 05AP-266, 2006-Ohio-1153, ¶ 44. A Plaintiff also has a "heightened" standard necessary to establish a claim of reverse race discrimination. Mowery, 2006-Ohio-1153.

         {¶9} To be deemed similarly situated, "the comparables must have dealt with the same supervisor, have been subjected 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. at ¶ 35, quoting Tilley v. Dublin, 10th Dist. Franklin No. 12AP-998, 2013-Ohio-4930, ¶ 43.

         {¶10} If Plaintiff sets forth a prima facie case, then the burden shifts to BWC to articulate a legitimate, non-discriminatory reason for taking the adverse employment action against Plaintiff. Id. at ΒΆ 30. Once BWC establishes a legitimate, nondiscriminatory reason, the burden shifts back to Plaintiff to prove that the ...


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