Kroh v. Continental Gen. Tire, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Kroh v. Continental Gen. Tire, Inc., 92 Ohio St.3d 30, 2001-Ohio-59.]

KROH, APPELLANT, v. CONTINENTAL GENERAL TIRE, INC., APPELLEE.
[Cite as Kroh v. Continental Gen. Tire, Inc. (2001), 92 Ohio St.3d 30.]
Employer and employee -- Unlawful discriminatory practices -- Court of
appeals' reversal of jury award in sex discrimination action and finding
that trial court erred in denying motion for directed verdict reversed and
trial judgment reinstated.
(No. 00-16 -- Submitted November 28, 2000 -- Decided June 13, 2001.)
APPEAL from the Court of Appeals for Summit County, No. 19412.
__________________

PFEIFER, J. Plaintiff-appellant, Nancy O. Kroh, filed suit against
defendant-appellee, Continental General Tire, Inc. ("General Tire"), claiming that
General Tire had discriminated against her because of her gender, in violation of
R.C. 4112.02 and 4112.99. At the close of Kroh's case, General Tire moved for a
directed verdict, claiming that Kroh had failed to establish a prima facie case of
gender discrimination because the males with whom she compared herself were
not situated similarly to her. The trial court denied the motion.

After a jury trial, the jury found for Kroh and awarded $708,000 in
damages for back pay and benefits, front pay and benefits, pension losses, and
pain and suffering.

On appeal, the court of appeals found that the trial court erred by denying
the motions for directed verdict. The court of appeals stated, "Considering the
evidence presented by Kroh, reasonable minds could only conclude that she did
not demonstrate that General Tire treated her differently from similarly situated
male employees. * * * It is clear from reading their testimony on direct
examination by Kroh, however, that these [allegedly similarly situated]

SUPREME COURT OF OHIO
employees performed jobs that differed significantly in function, responsibility,
and scope from her own. * * *

"In effect, her claims noted legitimate differences in the conditions of
employment, but invited the jury to find discrimination by comparing apples with
oranges."

The court reversed the judgment of the trial court and entered judgment
for General Tire.

The cause is now before this court pursuant to the allowance of a
discretionary appeal.

A directed verdict may be granted when "the trial court, after construing
the evidence most strongly in favor of the party against whom the motion is
directed, finds that upon any determinative issue reasonable minds could come to
but one conclusion upon the evidence submitted and that conclusion is adverse to
such party." Civ.R. 50(A)(4). The court of appeals correctly noted that a motion
for a directed verdict must be denied when "substantial, competent evidence has
been presented from which reasonable minds could draw different conclusions."

The only issue before us in this case is whether Kroh established, to the
extent necessary to survive a motion for directed verdict against her, that the male
employees to whom she compared herself were "similarly situated" in all relevant
respects. Without such a showing, Kroh's claim of gender discrimination is
fatally flawed, and the court of appeals was correct to reverse the judgment in her
favor.

In holding that Kroh had not made the required showing, the appellate
court relied on Mitchell v. Toledo Hosp. (C.A.6, 1992), 964 F.2d 577, and in
particular the following language:

"It is fundamental that * * * the plaintiff must show that the `comparables'
are similarly-situated in all respects. Thus, to be deemed `similarly-situated,' the
individuals with whom the plaintiff seeks to compare [her] treatment must have
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January Term, 2001
dealt with the same supervisor, have been subject 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." (Citation omitted and emphasis sic.) Id. at 583.

The court of appeals in this case found that Kroh's evidence was
"insufficient as a matter of law" to establish that her male colleagues were
situated similarly to her under the above standard, and that therefore the trial court
had erred in denying General Tire's motion for a directed verdict. We disagree.

General Tire hired Nancy Kroh in 1966. In 1987, Kroh was promoted to
cash manager, with the responsibility of reorganizing the Treasury Department,
including the creation of job descriptions for all of the positions in the department.
At that time, Kroh was the cash manager, Charles Nagy was assistant treasurer,
Ladd Leder was risk manager, and Steven Schwartz was real estate manager. The
manager positions of real estate, risk, and cash were all considered
interchangeable by General Tire. Kroh, Leder, and Schwartz were at the same
salary grade level.

In 1992, while Nagy was reassigned temporarily to Hanover, Germany,
Kroh performed his duties as assistant treasurer. As a result, Kroh expected to be
promoted to assistant treasurer. Instead, General Tire hired Michael Worthington,
a male, into a newly created position entitled "manager of treasury planning and
analysis," though the job was essentially equivalent to assistant treasurer and
those duties Kroh had been performing. Kroh testified that she had been
performing approximately sixty-five percent of the duties and responsibilities
listed in Worthington's job description. Worthington admitted to assuming
twenty-five percent of Kroh's former duties.

John Gritman was named Treasurer in April 1992, at which time all of the
Treasury Department managers, including Kroh, reported to him. Mike Brabec,
the credit manager, testified that if Kroh reported to Gritman, then he would
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consider her to be his (Brabec's) peer. Brabec, Ray Doyle (the national credit
manager), and Kroh were on the same or similar level of the organizational
structure.

"A prima facie standard that requires the plaintiff to demonstrate that he or
she was similarly-situated in every aspect to an employee outside the protected
class receiving more favorable treatment removes from the protective reach of the
anti-discrimination laws employees occupying `unique' positions * * *. [I]f the
non-protected employee to whom the plaintiff compares himself or herself must
be identically situated to the plaintiff in every single aspect of their employment, a
plaintiff whose job responsibilities are unique to his or her position will never
successfully establish a prima facie case." (Emphasis sic.) Ercegovich v.
Goodyear Tire & Rubber Co. (C.A.6, 1998), 154 F.3d 344, 353. See, also,
Graham v. Long Island RR. (C.A.2, 2000), 230 F.3d 34, 40.

Kroh was the cash manager at General Tire. There were no other cash
managers, so she could not compare herself to anyone who had exactly the same
duties as herself. She did, however, present evidence that tends to show that the
male managers she compared herself to reported to the same boss, had similar
titles, were at a similar level on the company's organizational chart, and had the
same salary classification.

As with all records, the one before us is incomplete. However, we do not
need to know everything to be able to determine that Kroh was "similarly-situated
to the non-protected employee in all relevant respects." (Emphasis sic.)
Ercegovich, 154 F.3d at 353. According to Ercegovich, what is relevant depends
on the case. Id. In this case, we believe that Kroh established the relevant aspects
of the "similarly situated" issue in her case, i.e., that the male colleagues who
allegedly received favorable treatment were in the same department, occupied
similar positions according to the organization chart, and reported to the same
manager. In other words, she compared herself to her peers.
4

January Term, 2001

To be sure, counsel for General Tire presented ample evidence supporting
their arguments. It is even possible that they presented more and better evidence.
However, our task is not to weigh the evidence. We conclude that substantial,
credible evidence was presented from which reasonable minds could draw
different conclusions. Accordingly, we are unwilling to reverse a jury verdict
simply because the court of appeals considered Kroh to be an apple and her peers
to be oranges.

Similarly, there was ample evidence before the trial court to warrant its
decision to deny Kroh's motion for prejudgment interest, its decision not to send
the issue of punitive damages to the jury, and its decision not to award attorney
fees and costs.
Judgment reversed and
trial court judgment reinstated.

MOYER, C.J., concurs.

DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur in judgment and
concur separately.

COOK and LUNDBERG STRATTON, JJ., concur in part and dissent in part.
__________________

DOUGLAS, J., concurring. While I concur in the judgment of the
majority, I would also reverse the trial court's denial of prejudgment interest and
attorney fees. Further, I would remand the case to the trial court for trial solely on
the issue of punitive damages. Only when we start allowing these additional
sanctions as compensation and punishment for discriminatory practices against
women (and minorities) will the practice not be so prevalent. How else will the
laudatory goal of equal pay for equal work and equal opportunity for promotion
and advancement ever be reached? Herein, a jury heard all of the evidence and
the surrounding facts and did the best it could with what it was permitted to
decide.
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RESNICK and F.E. SWEENEY, JJ., concur in the foregoing concurring
opinion.
__________________

COOK, J., concurring in part and dissenting in part. I agree with the
majority that Kroh established, to the extent necessary to survive a motion for
directed verdict, that the male employees to whom she compared herself were
"similarly situated" for purposes of her unequal-pay claim.

The only case that the court of appeals relied upon in support of its
decision to the contrary is Mitchell v. Toledo Hosp. (C.A.6, 1992), 964 F.2d 577.
Mitchell, however, is readily distinguishable from the case at bar. In that case, the
Sixth Circuit noted that the plaintiff had "produced no facts to establish that the
two white employees she identified as not having been fired" were similarly
situated to her. (Emphasis added.) Id. In a footnote, the Sixth Circuit reiterated
that there was "no evidence of record" (emphasis sic) to establish that the duties
and responsibilities of those employees to whom Mitchell compared herself were
similar, or that they reported to the same supervisor. Id. at 583, fn. 5.

Here, in contrast to Mitchell, Kroh did present evidence during her case-
in-chief tending to establish that at least some of the males to whom she compared
herself for purposes of her unequal-pay claim performed several similar job
functions, occupied the same position on the company's organizational chart, and
reported to the same supervisor for a certain period. Kroh also testified that she
had been "told by management" that these other positions were "interchangeable"
with her own. For purposes of a directed verdict, such evidence must be
construed most strongly in her favor. Civ.R. 50(A)(4).

The court of appeals determined that "Kroh's feelings and perceptions that
these men constituted her peer group are not determinative." Yet the evidence
adduced at trial here included more than just self-serving testimony by Kroh about
her own "feelings and perceptions." Kroh's case-in-chief included testimony
6

January Term, 2001
from eight other company employees, including testimony from several of the
male employees to whom Kroh compared herself. As the majority notes, at least
one of the males to whom Kroh compared herself testified that if Kroh reported to
the same supervisor, then he would have considered Kroh to be his peer.
Because
Mitchell was the only case relied on by the court of appeals in its
analysis of Kroh's evidentiary burden on the issue of comparability, it is also
worth noting that the Sixth Circuit has cautioned district courts against "applying
an exceedingly narrow reading of the Mitchell decision" and has slightly modified
the standard that it announced in Mitchell. Ercegovich v. Goodyear Tire &
Rubber Co. (C.A.6, 1998), 154 F.3d 344, 352. In Ercegovich, the Sixth Circuit
reasoned:

"We explained in Mitchell that when the plaintiff lacks direct evidence of
discrimination, `the plaintiff must show that the "comparables" are similarly-
situated in all respects,' absent other circumstantial or statistical evidence
supporting an inference of discrimination. * * * Although this statement appears
to invite a comparison between the employment status of the plaintiff and other
employees in every single aspect of their employment, Mitchell has not been so
narrowly construed. * * * The plaintiff need not demonstrate an exact correlation
with the employee receiving more favorable treatment in order for the two to be
considered `similarly-situated'; rather, * * * the plaintiff and the employee with
whom the plaintiff seeks to compare himself or herself must be similar in `all of
the relevant aspects.' " (Emphasis sic.) Id. at 352.

Though I agree with the majority's decision to reverse the court of
appeals' judgment, I must respectfully dissent from the majority's decision to
simply reinstate the jury's verdict. Given our reversal here of the decision
regarding the directed verdict, there remain two assignments of error and three
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SUPREME COURT OF OHIO
cross-assignments of error that have yet to be examined on appeal.1 In a single
sentence, without any discussion of the parties' arguments or citation to
supporting legal authority, the majority purports to resolve three of these assigned
errors even though they were never passed upon by the court below. This cause
should be remanded to the court of appeals for proper consideration of any
assignments of error and cross-assignments of error that it had previously deemed
moot.

LUNDBERG STRATTON, J., concurs in the foregoing opinion.
__________________

Katherine C. Hart Smith, for appellant.

Buckingham, Doolittle & Burroughs, LLP, James D. Kurek and Eleanor J.
Tschugunov, for appellee.
__________________

1.
In its first and third assignments of error below, General Tire argued that the trial court
erred in refusing to grant its motion for new trial, and that the trial court should have granted it a
directed verdict or judgment notwithstanding the verdict on Kroh's claim for lost pension benefits.
Kroh's three cross-assignments of error concerned the denial of her motion for prejudgment
interest (here, Proposition of Law No. VI), the trial court's refusal to send the issue of punitive
damages to the jury (Proposition of Law No. IV), and the trial court's failure to award Kroh
attorney fees and costs (Proposition of Law No. V). When a majority of this court granted Kroh's
discretionary appeal, it did so on all propositions of law. See Kroh v. Continental Gen. Tire, Inc.
(2000), 88 Ohio St.3d 1501, 727 N.E.2d 924.
8