{¶ 36} Although I conclude that the issue is close, I would overrule the assignment of error and affirm the summary judgment that has been rendered for LexisNexis.
{¶ 37} In my view, Holbrook's situation is not similarly situated to Doherty's, because the proof available to the decision maker in the two situations was significantly different. In both instances, LexisNexis had an employee who admitted that he or she "might" have accidentally set off the fire alarm, but who denied having intentionally done so. But LexisNexis had stronger proof, both of *Page 355 intentionality and of the very fact that the accused employee had, in fact, set off the fire alarm, in Holbrook's case. The stronger proof of the fact that Holbrook did, in fact, set off the fire alarm is the video record showing his hand in front of the alarm at the precise instant when it was triggered. There was no similar proof in Doherty's case.
{¶ 38} The stronger proof of intentionality in Holbrook's case is that fact that in his case, LexisNexis had information that it would have been difficult, if not impossible, for the alarm in his case to have been triggered accidentally because of the nature of the triggering mechanism, which required two distinct actions. By contrast, in Doherty's case, there was a report that the alarm did not appear to have been deliberately pulled but, instead, had been hit with sufficient force to have caused the alarm to have been triggered, despite the fact that it had not been intentionally triggered in the manner designed for intentional operation.
{¶ 39} Had I been the decision maker in Holbrook's case, I would not have decided to terminate his employment; I would have given him the benefit of the doubt. But that is not my decision to make; that was a decision for his employer to make, in its business judgment. We are not called upon to review whether that decision was a sound business judgment but whether Holbrook has made out a prima facie case of racial discrimination.
{¶ 40} I also find it somewhat incomprehensible that LexisNexis did not allow Holbrook an opportunity to look at the video record to see if he could explain it. But that is not a dissimilarity in the way he was treated from the way Doherty was treated, because there was no video record in Doherty's case.
{¶ 41} Because I conclude that the proof that Holbrook intentionally pulled the fire alarm was significantly stronger than the proof that Doherty intentionally pulled the fire alarm, even though it was not strong enough, in my mind, to have overcome the benefit of the doubt that I would have afforded him, I am not prepared to hold that Holbrook and Doherty were similarly situated for the purpose of concluding that LexisNexis treated them differently without a sufficient justification to avoid a reasonable inference of racial discrimination.
{¶ 42} I would affirm. *Page 356