to S.C. Reporter 1/10/17
A. Crawford, Judge
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.
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.
In Dresher, the Ohio Supreme Court held:
"[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.
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.
"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):
"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."
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,
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.
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 ¶ 30. Once BWC establishes a
legitimate, nondiscriminatory reason, the burden shifts back
to Plaintiff to prove that the ...