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Dean v. Liberty Mutual Insurance

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018


          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-16-864698

          ATTORNEYS FOR APPELLANT Caryn M. Groedel Matthew S. Grimsely Caryn Groedel & Associates Co., L.P.A. Shawn Alexander Romar.

          ATTORNEYS FOR APPELLEES Alexander R. Frondorf, Robert M. Wolff, Janette M. Louard

          BEFORE: Blackmon, P.J., Laster Mays, J., and Jones, J.



         {¶1} Crystal Dean ("Dean") appeals from the trial court's granting summary judgment in favor of Liberty Mutual Insurance, et al., ("Liberty") in this employment discrimination case and assigns the following errors for our review:

I. The trial court erred in granting appellee's motion for summary judgment on plaintiffs race discrimination claim.
II. The trial court erred in granting appellee's motion for summary judgment on plaintiffs promissory estoppel claim.
III. The trial court erred in granting appellee's motion for summary judgment on plaintiffs wage claim.
IV. The trial court abused its discretion in denying appellant's motions to compel and motions to enlarge discovery.

         {¶2} Having reviewed the record and pertinent law, we reverse in part, affirm in part, and remand the case for proceedings consistent with this opinion. Specifically, we reverse in part the trial court's granting summary judgment on Dean's race discrimination claim; there exists in the record disputed issues of material fact regarding Dean's sales requirements and sales record. We affirm the trial court's judgment on the remaining issues. The apposite facts follow.

         I. Facts and Procedural History

         {¶3} In May 2011, Dean began working at Liberty as a sales representative. Per Liberty's policies and procedures for sales representatives, Dean attended a 12-week training program, then began a two-year "production validation period" ("PVP"). Each PVP is six-months long, during which sales representatives must meet certain sales requirements. Sales representatives are reviewed after each PVP, and if they complete all four PVPs successfully, they will move on to what Liberty calls PMP-1. Dean successfully completed her first two PVPs ending in February 2012 and August 2012, respectively. Dean failed to meet her sales requirements for her third PVP ending in February 2013. According to her third PVP report, Dean was 52 policies below the requirement. However, Liberty did not terminate her employment at that time.

         {¶4} In May 2013, Jeremy Hohn became Dean's area manager. In June and July 2013, during her final PVP, Dean took time off work for medical reasons. Per Liberty's policy, the months of June and July 2013 were excluded from her final PVP, and the review period was extended by two months from August to October 2013.

         {¶5} On July 10, 2013, when Dean came back to work, her former manager sent her a PVP status report email showing that Dean's sales were below Liberty's requirements. Specifically, this report stated that Dean was "97 policies below the requirement" including "5 policies below the Life [insurance] requirement." The email stated that if Dean failed to meet her PVP requirements, her "employment will be subject to termination."

         {¶6} In August 2013, Jessica Holden became Dean's branch manager. According to Liberty, when Dean's fourth PVP ended in October 2013, she had not met her sales requirements. However, according to Dean, in November 2013, Holden led Dean to believe that she had met her sales goals.

         {¶7} In January 2014, Holden reviewed Dean's sales numbers "to see whether there was any way they could satisfy the PVP requirements." Specifically, Holden tried to include policies that were paid for after Dean's fourth PVP ended. Ultimately, Liberty concluded that sales representatives received credit only for policies that were paid for during the PVP in question. In February 2014, Liberty terminated Dean's employment for failure to meet her sales goals.

         {¶8} On June 14, 2016, Dean filed a complaint[1] against Liberty alleging race discrimination, age discrimination, promissory estoppel, and violations of the Minimum Fair Wage Standards Act. On June 27, 2017, the court granted summary judgment against Dean and in favor of Liberty on all claims. It is from this order that Dean appeals.

         II. Summary Judgment

         {¶9} Before we review the merits of Dean's arguments under assigned errors one, two, and three, we address her allegation on appeal that the "trial court erred by failing to issue a written opinion." This court has held that a "trial court is not required to issue a written opinion containing findings of fact and conclusions of law when ruling on a motion for summary judgment. * * * Rather, the trial court need only issue a judgment entry that contains a 'clear and concise pronouncement of the Court's judgment' and 'a sufficient pronouncement of its decision upon which to review the issues raised by appellants' appeal.'" (Citation omitted.) Powers v. Ferro Corp., 8th Dist. Cuyahoga No. 79383, 2002-Ohio-2612, ¶ 30. This rule is rooted in common sense, because "we afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate." Jackson v. Glidden Co., 8th Dist. Cuyahoga No. 87779, 2007-Ohio-277, ¶ 8. Accordingly, Dean's allegation that the court erred by not issuing a written opinion is meritless.

         {¶10} Dean also argues that the trial court abused its discretion "by ruling on Liberty's MSJ without first granting Dean's Civ.R. 56(F) request for discovery." Upon review of the record, including the docket, it does not appear that Dean filed a Civ.R. 56(F) request for discovery. Obviously, the court cannot rule on a motion that was not filed; therefore, we find no merit to Dean's argument regarding this issue.

         {¶11} Appellate review of granting summary judgment is de novo. Pursuant to Civ.R. 56(C), the party seeking summary judgment must prove that 1) there is no genuine issue of material fact; 2) he or she is entitled to judgment as a matter of law; and 3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

         III. Race Discrimination

         {¶12} Pursuant to R.C. 4112.02(A), it is unlawful for an employer, "because of the race * * * of any person, to discharge without just cause, * * * or otherwise to discriminate against that person with respect to * * * terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment."

         {¶13} To prove a prima facie employment discrimination claim, a plaintiff must show, by a preponderance of the evidence, that he or she was 1) a member of a protected class; 2) subject to an adverse employment action; 3) qualified for the position; and 4) replaced by, or treated worse than, a person not belonging to that protected class. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 664 N.E.2d 1272 (1996). If the plaintiff succeeds, the case proceeds under a burden-shifting analysis as follows: "[T]he burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. * * * If the employer meets its burden, the plaintiff must then demonstrate that the reason the employer offered is pretextual and that the real reason was discriminatory in nature." Lennon v. Cuyahoga Cty. Juvenile Court, 8th Dist. Cuyahoga No. 86651, 2006-Ohio-2587, ¶ 9.

         {¶14} Furthermore, Civ.R. 56(E) states, in part, that in opposing summary judgment, "an adverse party may not rest on the mere allegations or denials of the party's 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." Mere speculation is insufficient to overcome summary judgment. Frankmann v. Skyline Mgt., 8th Dist. Cuyahoga No. 88807, 2007-Ohio-3922.

         III.A. Dean's Prima Facie Case of Race Discrimination

         {¶15} In the case at hand, it is undisputed that Dean is African-American, which is a protected class, and that she was qualified for the sales representative position at Liberty. Thus, Dean meets the first and third elements of a prima facie case of race discrimination. Dean testified that on February 7, 2014, Holder called her into the office and had a Liberty HR representative on speaker phone. The HR representative said that Liberty decided to terminate Dean's employment effective immediately. Dean asked why, and the rep stated that Dean "didn't hit the numbers." Dean testified that she felt like she was being discriminated against, "because I was told that I had hit that benchmark, and then for [the HR rep] to say that I hadn't hit the benchmark, I was just floored."

         Termination certainly qualifies as an adverse employment action under the second factor of a prima facie case of race discrimination.

         {¶16} As to the fourth prong of an employment discrimination claim, Dean argues that she was subjected to disparate treatment by Liberty in favor of other similarly situated Caucasian employees. Dean alleges that Liberty, Holden, and Hohn "favored" other employees over her; gave other employees more Affinity[2] accounts; gave her leads in "ethnic" and "economically deprived" areas such as Youngstown, while other employees received leads in Hudson; treated her differently when calculating the time frame of her final PVP as related to her medical leave of absence; and terminated her employment for not meeting her sales quota, although a Caucasian employee was allowed to keep his job when he failed to meet a sales quota.

         III.B. Liberty's "Legitimate, Nondiscriminatory" Reason for Termination

         {¶17} Assuming that Dean has set forth a prima facie case of race discrimination regarding her termination from employment, the burden shifts to Liberty to articulate a "legitimate, nondiscriminatory" reason for termination. Liberty submitted evidence that Dean was terminated for failing to meet her fourth PVP sales requirements. For example, an email dated July 10, 2013, from Dean's former manager to Dean regarding her final six-month evaluation, stated, in part, as follows:

Note of Probation: After 2 months of this PVP, you have sold 29 A/H/L policies. You need to sell 92 more policies, 8 of which need to be Life policies, by 9/30/2013 to meet your P&C and life PVP requirement. If you fail to do so, your employment will be subject to termination. I will confer with you frequently during the remainder of this PVP and will work with you to help you meet your PVP requirement. As we discussed, a copy of this letter will be made a part of your personnel file.

{¶18} Holden testified that she received a call from Liberty's HR department to verify Dean's "numbers" and "incentive report" during her fourth PVP.[3] After that, she received a phone call from Hohn, the area manager, in which he stated that "we would have to terminate Crystal." Asked if she had terminated anyone else for poor performance during Dean's tenure at Liberty, Holden replied, "No. * * * I did not have any instances besides Crystal's during that specific time frame where I had an employee in question for their PVP." Holden further explained that she was involved in the termination of another sales representative named Richard Wilson, because "[h]e was unable to secure a license that's required as part of the position." According to Holden, she does not have the authority to discipline sales representatives on her own. She would need to involve Hohn and Liberty's human resources department before taking any action. "Actually, I don't know who makes the final determination on the termination of reps."

         {¶19} Hohn testified that, during Dean's fourth PVP, he and Dean had a coaching session, in which he gave her the following assistance or advice to increase sales:

We talked about how to most effectively coach business. We talked about where she could find business. We talked about how to use her resources. We talked about a Subaru dealership that she was assigned to. We talked about on-site activity that could increase her sales. We talked about short-term activities, given the time frame, that were most likely to result in sales. And she also sat directly outside of the door of that office, so I then listened to what she was doing that day that we had a coaching session.

         {¶20} Hohn testified that Dean was terminated because "[s]he did not meet the [sales] production requirement for the period of time in which we measured it," i.e., Dean's fourth PVP, which was from February 2013 to October 2013.

         {¶21} Upon review, we find that Liberty met its burden of producing a legitimate, nondiscriminatory reason for terminating Dean's employment. Specifically, Liberty presented evidence, in the form of deposition testimony, emails, and PVP status reports, showing that Dean failed to meet her PVP sales requirements. To avoid summary judgment, Dean must demonstrate that Liberty's reason is pretextual and that the real reason for her termination was discriminatory in nature.

         III.C. Dean's Evidence that Liberty's Reason is Pretextual

         {¶22} Excerpts from Dean's deposition follow:

         III.C.1. Summary Judgment Improperly Granted Regarding PVP Sales Requirements

         {¶23} Dean testified that in November 2013, "Jessica Holden told me or at this point led me to believe that she had confirmed my numbers were met, * * * and even told me to take some time off, because she knew I was working hard and had worked a lot of hours. So ...

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