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Chisholm v. Cleveland Clinic Foundation

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 22, 2019

JANICE CHISHOLM, Plaintiff-Appellant,
v.
CLEVELAND CLINIC FOUNDATION, Defendant-Appellee.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-849129

         JUDGMENT: AFFIRMED

          Schuster & Simmons Co., L.P.A., Nancy C. Schuster, and Jeffrey Panehal, for appellant.

          Frantz Ward, L.L.P., Ryan T. Smith, and Michael N. Chesney, for appellee.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE

         {¶ 1} Plaintiff-appellant, Janice Chisholm, appeals an order granting summary judgment in favor of defendant-appellee, the Cleveland Clinic Foundation, Inc. ("the Clinic"), and claims the following errors:

1. The trial court erred when it did not draw an inference from the evidence presented in the light most favorable to the non-movant or construe the competent evidence most strongly in the non-movant's favor.
2. The trial court erred in finding that Appellant failed to support her claim of disparate-impact discrimination with necessary statistical evidence.
3. The trial court erred in finding that Appellant failed to demonstrate a prima facie case of disparate treatment discrimination.
4. The trial court erred in finding that Appellant was required to demonstrate pretext, but could not do so, in order to succeed on her claim of disparate treatment discrimination.

         {¶ 2} We find no merit to the appeal and affirm the trial court's judgment.

         I. Facts and Procedural History

         {¶ 3} Chisholm applied for a position as a pharmacy technician at the Clinic in the spring of 2000 and disclosed that she had been convicted of child endangering in 1993 in her employment application. Despite her felony conviction, the Clinic hired Chisholm and assigned her to work at South Pointe Hospital, one of the Clinic's eight community hospitals in the Cleveland area. During her first nine years at the Clinic, Chisholm received five merit-based raises and several positive performance evaluations.

         {¶ 4} In April 2009, following a deadly medication error, the Ohio General Assembly enacted R.C. 472942, also known as Emily's Law. Emily's Law prohibited the hiring of pharmacy technicians, who had previously been convicted of a felony, and required presently employed technicians to undergo a criminal background check. The law provided an exception, however, for those individuals who had worked as a pharmacy technician for the same employer for five or more years.

         {¶ 5} After the passage of Emily's Law, the Clinic implemented its own felony-conviction policy, which exceeded the requirements of Emily's Law. The Clinic's policy prohibited the employment of any pharmacy technicians with felony convictions and required all of its technicians to undergo criminal background checks regardless of how long they had been employed at the hospital. Consequently, the Clinic terminated Chisholm's employment in November 2009, due to her 1993 felony conviction. The criminal background checks only revealed one other pharmacy technician with a felony conviction. That employee, D.K., worked as a pharmacy technician at Hillcrest Hospital. Both Chisholm and D.K. are African-American.

         {¶ 6} In accordance with its new policy, the Clinic removed D.K. from her pharmacy technician position and transferred her to another position for which she was qualified at Hillcrest Hospital. As a result, D.K. suffered no loss of employment, pay, or benefits, and remained employed by the Clinic. South Pointe Hospital did not have any available positions for Chisholm. The Clinic replaced Chisholm with a pharmacy technician named S.W., who is also African-American.

         {¶ 7} Because there were no transfer options at South Pointe Hospital, the Clinic provided Chisholm with ten weeks of full severance pay and health benefits. During this period, the Clinic also allowed Chisholm to "multiple-bid" (i.e., simultaneously bid on many jobs) on open positions as an internal candidate. (Chisholm depo. at 138.) Applicants are generally only allowed to apply for one position at a time. (Calabrese aff. ¶ 13.) Thus, Chisholm had an advantage over other applicants seeking employment at the Clinic. (Calabrese aff. ¶ 13.) Nevertheless, Chisholm did not pursue any other positions within the Clinic until after the ten-week period had expired. (Chisholm depo. at 139.)

         {¶ 8} Chisholm subsequently filed suit against the Clinic, claiming the Clinic terminated her employment on account of her race. Chisholm alleged that her termination "was the result of racial discrimination, manifested as either disparate treatment or disparate impact" because "the only pharmacy technicians who were affected by the Clinic's retroactive application of Emily's Law were African American." (Amended complaint ¶ 11, 12.)

         {¶ 9} Following discovery, voluntary dismissal of the complaint pursuant to Civ.R. 41(A), refiling the complaint, and more discovery, the Clinic filed a motion for summary judgment. Thereafter, Chisholm moved the court, pursuant to Civ.R. 56(F), to reopen discovery related to the Clinic's responses to interrogatory Nos. 6 and 9. Interrogatory No. 6 sought the name, race, and hire and termination dates of all Clinic employees terminated, in whole or in part, as a result of Emily's Law. Interrogatory No. 9 requested the name, race, ...


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