Love v. Columbus

[Cite as Love v. Columbus, 2021-Ohio-3494.]
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Carlton Love, :

Plaintiff-Appellant, : No. 20AP-41
(C.P.C. No. 16CV-3490)
v. :
(REGULAR CALENDAR)
City of Columbus et al., :

Defendants-Appellees. :

D E C I S I O N

Rendered on September 30, 2021

On brief: Law Offices of John C. Camillus, LLC, and John C.
Camillus, for appellant.

On brief: Zach Klein, City Attorney, and Susan E. Williams,
for appellees.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.
{¶ 1} This is an appeal by plaintiff-appellant, Carlton Love, from a decision and
entry of the Franklin County Court of Common Pleas granting summary judgment in favor
of defendants-appellees, city of Columbus (individually "city") and Tatyana Arsh.
{¶ 2} This appeal follows this court's remand in Love v. Columbus, 10th Dist. No.
17AP-696, 2019-Ohio-620, and the following background facts are taken primarily from
our prior decision in Love. Appellant, an African-American, "began working for the city in
1992 as an engineer aide." Love at ¶ 2. He was subsequently promoted to the position of
"pipeline locator and was responsible for locating underground utility lines." Id. Requests
made "to mark utility lines are commonly referred to as 'tickets' or 'OUPS tickets.' " Id.
No. 20AP-41 2

Appellant was "a member of the American Federation of State, County, and Municipal
Employees, Ohio Council 8, Local 1632" (hereafter "Union"). Id.
{¶ 3} In 2006, Cheryl Roberto, Director of the Department of Public Utilities
(hereafter "the department"), moved the department into the "Ohio Utilities Protection
Service" (hereafter "OUPS") system. Id. Appellant alleged that, at the time, "Roberto met
with 50-60 employees and promised them a pay raise." Id. Further, "Roberto told
[appellant] that even though he would be responsible for more job duties," including
responsibility for marking water, sewer, and electric lines (rather than just water lines as
previously), "he would receive commensurately more pay." Id.
{¶ 4} Roberto subsequently "left her employment," and Arsh "became the Director
of Public Utilities." Id. at ¶ 3. Appellant "learned he would not be receiving a pay raise
other than the negotiated pay raises pursuant to the collective bargaining agreement." Id.
Appellant stated in his deposition that "he complained to Deputy Director Mark Kouns and
the city's Equal Employment Opportunity ("EEO") officer, Dr. Matthews, two times each,
that he felt he was not receiving the promised raises because of his race." Id. Appellant
further testified that, in 2008, "his supervisor, Bill Stover, threatened him and used a
derogatory racial term." Id. at ¶ 4. Following an investigation, "Stover was charged with
violations of City of Columbus Central Work Rules," and Stover subsequently "resigned on
December 8, 2008." Id.
{¶ 5} Prior to appellant's complaint against Stover, "the department began
receiving complaints from inspectors and contractors that [appellant] was not properly
marking utility lines at various job sites," and "[a] water line was hit and damaged, costing
approximately $50,000 to repair." Id. at ¶ 5. Disciplinary charges were filed against
appellant "for violating Central Work Rules 1, 6, and 7 (Dishonesty, Insubordination, and
Neglect of Duty)." Id. In July 2008, appellant "was charged with violating Central Work
Rules 6 and 7 (Insubordination and Neglect of Duty) because he failed to complete a work
ticket." Id. Later that month, appellant "was again charged with violations of Central Work
Rules for failure to properly mark a water line that was hit and damaged." Id.
{¶ 6} On October 8, 2008, appellant entered into a last chance agreement with the
city, and he "admitted engaging in the conduct described in the three violations." Id. at ¶
6. The last chance agreement provided that if appellant "was found guilty of violating
No. 20AP-41 3

another work rule during the three years the Last Chance Agreement was in effect, his
employment would be terminated." Id.
{¶ 7} In September 2010, appellant's supervisor "began receiving complaints from
inspectors and contractors regarding [appellant] not marking utility lines properly," and
"[t]here were five separate incidents involving a mismarked line or incomplete marking."
Id. at ¶ 7. Following an investigation, "charges were filed against [appellant] for violating
Central Work Rules 1, 6, and 7 (Dishonesty, Insubordination, and Neglect of Duty)." Id.
{¶ 8} On November 9, 2010, a disciplinary hearing was conducted by a city labor
relations hearing officer. The hearing officer found appellant "guilty of the charges and,
therefore, ordered [appellant's] employment terminated, effective November 19, 2010." Id.
at ¶ 8.
{¶ 9} The Union filed a grievance challenging the work rule violations, and a "Step
2 grievance hearing" was held on January 10, 2011, conducted by a city hearing officer. Id.
at ¶ 9. The hearing officer found appellant "violated the work rules and upheld his
termination on January 18, 2011." Id. The Union declined to pursue any further appeals.
{¶ 10} Appellant filed a complaint in the Franklin County Court of Common Pleas
against the city and Arsh, "alleging race discrimination and retaliatory discharge." Id. at
¶ 10. Appellant dismissed the action but refiled it on April 11, 2016. He then filed an
amended complaint, alleging race discrimination and retaliation. The city and Arsh filed a
joint motion for summary judgment, which the trial court granted on August 31, 2017.
{¶ 11} Appellant appealed the judgment of the trial court asserting the court erred
in granting summary judgment for appellees on his claim for race discrimination. In Love,
a majority of this court found the trial court erred in determining appellant failed to make
a prima facie case for employment discrimination, holding that a material issue of fact
existed as to why appellant's position was kept open for nine months before the director
hired a non-protected class replacement. This court declined to "reach issues relating to
burden shifting to the employer or pretextual based reshifting of the burden to [appellant]."
Id. at ¶ 30.1

1 A dissenting member of the panel deemed the dispositive issue to be "whether the trial court erred as to

evidence of pretext," stating it was not premature to address "the next steps of the McDonnell Douglas [Corp.
v. Green, 411 U.S. 792 (1973)] burden-shifting analysis" in light of the fact the parties had raised the issue of
evidence of pretext to the trial court, and noting the trial court had ruled on pretext "as an alternative basis to
find summary judgment in favor of appellees." Love at ¶ 33-34 (Sadler, J., dissenting).
No. 20AP-41 4

{¶ 12} Following this court's remand, the trial court conducted a status conference
during which appellees argued that, even assuming appellant had established a prima facie
case of discrimination, his claim failed because he was terminated for a non-discriminatory
legitimate business reason. The trial court permitted appellees "to file for summary
judgment as to that specific issue." (Decision & Entry Granting Def.'s Mot. For Summ.
Jgmt. at 2.)
{¶ 13} On December 17, 2019, the trial court issued a decision and entry granting
appellees' motion for summary judgment. Specifically, the court found appellant failed to
show that appellees' "stated legitimate non-discriminatory reason for his termination is a
mere pretext for discrimination." (Decision & Entry Granting Def.'s Mot. For Summ. Jgmt.
at 6.)
{¶ 14} On appeal, appellant sets forth the following assignment of error for this
court's review:
The Trial Court erred in granting summary judgment for the
Defendants on Plaintiff's claim for race discrimination.

{¶ 15} Under his single assignment of error, appellant argues the trial court erred in
finding his sworn deposition testimony insufficient to raise a genuine issue of material fact
as to pretext. Appellant further contends the court erred in failing to conclude that
inconsistencies in appellees' explanation for his termination created a genuine issue of
material fact regarding pretext.
{¶ 16} Under Ohio law, summary judgment is appropriate when the moving party
demonstrates "(1) there is no genuine issue of material fact, (2) the moving party is entitled
to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion
when viewing the evidence most strongly in favor of the non-moving party, and that
conclusion is adverse to the non-moving party." U.S. Specialty Ins. Co. v. Hoffman, 10th
Dist. No. 19AP-189, 2020-Ohio-4114, ¶ 17, citing Hudson v. Petrosurance, Inc., 127 Ohio
St.3d 54, 2010-Ohio-4505, ¶ 29; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d 158, 2007-
Ohio-5584, ¶ 29. This court's review of a trial court's ruling on a motion for summary
judgment "is de novo." Id., citing Hudson at ¶ 29. Thus, "an appellate court conducts an
independent review, without deference to the trial court's determination." Id., citing Zurz
v. 770 W. Broad AGA, L.L.C., 192 Ohio App.3d 521, 2011-Ohio-832, ¶ 5 (10th Dist.); White
v. Westfall, 183 Ohio App.3d 807, 2009-Ohio-4490, ¶ 6 (10th Dist.).
No. 20AP-41 5

{¶ 17} Following this court's remand in Love, the trial court proceeded on the
assumption appellant "has established a prima facie case of racial discrimination."
(Remand Decision at 4.) The court therefore focused on the issue of pretext, addressing
whether appellant demonstrated genuine issues of material fact as to whether appellees'
proffered reasons for his termination were pretext for racial discrimination. The trial court
initially determined appellees "have established that [appellant] was fired for a legitimate
non-discriminatory reason, i.e. his various work violations and disciplinary actions," and
that appellant "concedes that [appellees] have met their burden and the burden now shifts
to him to show that [appellees'] stated reason for his termination is simply a pretext for
discrimination." (Decision & Entry Granting Def.'s Mot. For Summ. Jgmt. at 5.)
{¶ 18} Under Ohio law, if a plaintiff establishes a prima facie case of discrimination,2
"the burden shifts to the employer to articulate some legitimate, non-discriminatory reason
for its action." Tanksley v. Howell, 10th Dist. No. 19AP-504, 2020-Ohio-4278, ¶ 23, citing
Veal v. Upreach, LLC, 10th Dist. No. 11AP-192, 2011-Ohio-5406, ¶ 21, citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The explanation offered by the employer
"must be legally sufficient to justify a judgment for the defendant." Id., citing Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981).
{¶ 19} If an employer "articulates a legitimate non-discriminatory reason for its
action, the burden shifts back to the plaintiff to show the proffered reason was not the true
reason for the adverse employment action, but was a pretext for discrimination." Id., citing
Veal at ¶ 21, citing Burdine at 253. In this respect, a reason offered by an employer " 'cannot
be proved to be "a pretext for discrimination" unless it is shown both that the reason was
false, and that discrimination was the real reason.' " (Emphasis sic.) Id., quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).
{¶ 20} A plaintiff may show the employer's proffered reason for the adverse
employment action is a pretext for discrimination "by demonstrating that the stated reason
had no basis in fact, the reason offered was not the actual reason for the employment action,
or that the reason offered was insufficient to explain the employer's action." Id., citing

2 In order to state a prima facie case of racial discrimination, a plaintiff must demonstrate: "(1) membership
in a protected class; (2) adverse employment action; (3) qualification for the position lost or not gained; and
(4) the position remained open or was filled by a person not of the protected class." Janiszewski v. Belmont
Career Ctr., 7th Dist. No. 16 BE 0009, 2017-Ohio-855, ¶ 54, citing McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973).
No. 20AP-41 6

Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994). The
ultimate burden, however, " 'of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.' " Id. at ¶ 24,
quoting Burdine at 253.
{¶ 21} Appellant argues he met his burden of providing evidence of pretext in two
ways, asserting that: (1) "white line operators were not disciplined at all for engaging in the
same activity that supposedly" resulted in appellant's termination, and (2) that appellees'
explanations for appellant's termination were inconsistent and constituted evidence of
pretext. (Appellant's Brief at 8.)
{¶ 22} Appellant first contends his own testimony establishes that other line
locators engaged in the same conduct for which the city claims he was terminated, yet they
were not disciplined. According to appellant, while the record does not reflect that these
other line locators were likewise on a last chance agreement, this would not explain why the
others were not disciplined in any way for the same conduct, nor explain why appellant was
placed on the last chance agreement in the first place.
{¶ 23} The trial court, in addressing this argument, held in part:

In support of this argument, Plaintiff cites to his own
deposition testimony. The Court has reviewed the testimony
cited by Plaintiff and finds it insufficient. Plaintiff states
numerous times that other workers committed the same work
place violations as Plaintiff and were not disciplined, but he
never identifies a specific employee or example. Further,
Plaintiff does not provide the Court with supporting evidence
in the form of documents or deposition testimony to support
this claim. Plaintiff's statements are general in nature and
cannot be viewed as more than mere conjecture. * * * Plaintiff
cannot rely on mere conjecture to show that Defendants' stated
reason for his termination is a pretext for discrimination.

(Remand Decision at 5-6.)

{¶ 24} In the present case, appellant does not dispute that he entered into a last
chance agreement with his employer and that he was terminated after a labor relations
hearing officer found him guilty of charges for violating work rules related to dishonesty,
insubordination, and neglect of duty. Violation of a last chance agreement constitutes "a
legitimate and nondiscriminatory reason" for termination. Hartman v. Ohio Dept. of
No. 20AP-41 7

Transp., 10th Dist. No. 16AP-222, 2016-Ohio-5208, ¶ 20. See also Tack v. PCC Airfoils,
Inc., 5th Dist. No. 2008CA00015, 2008-Ohio-6898, ¶ 48 (finding employer had legitimate
non-discriminatory reason for terminating appellant for violation of last chance
agreement). As noted, once an employer raises a "legitimate non-discriminatory reason for
its action," the burden shifts back to the plaintiff to show the proffered reason was a pretext
for discrimination. Tanksley at ¶ 23.
{¶ 25} Upon review, we agree with the trial court that appellant did not meet his
burden as he offered only his own general assertions that other employees were not
disciplined for similar acts. During his deposition testimony, appellant stated: "A lot of line
locators would do things and they * * * never got wrote up." (Appellant Depo. at 21.) When
asked why he believed race played a role in his treatment, appellant responded: "I just feel
that it was my race because other people were doing and did worse than I did and did not
get wrote up or nothing or no time off or nothing." (Appellant Depo. at 37.) When pressed
as to specific names of these individuals, he responded: "I can't remember exactly who or
the dates but we all did the same thing." (Appellant Depo. at 81.)
{¶ 26} As noted, an employer's reason cannot be pretext for discrimination "unless
it is shown both that the reason was false, and that discrimination was the real reason."
Tanksley at ¶ 21. Further, once the burden shifted back to appellant, "he needed to
demonstrate the pretext with actual evidence, not just conclusory, self-serving statements."
Stembridge v. Summit Academy Mgt., 9th Dist. No. 23083, 2006-Ohio-4076, ¶ 24. See
also Smith v. Kelly, 2d Dist. No. 2011 CA 77, 2012-Ohio-2547, ¶ 29 (plaintiff failed to put
forward "sufficient evidence" to create a genuine issue of material fact that her race or
gender was real reason for adverse employment action where she "offered only her own
self-serving statements of pretext on the part of appellees"); Brahmbhatt v. Gen. Prods.
Corp., S.D.Ohio No. 1:12cv919 (June 16, 2014), citing Mitchell v. Toledo Hosp., 964 F.2d
577, 584 (6th Cir.1992) ("uncorroborated, conclusory statements and self-serving
allegations taken solely from [a plaintiff's] testimony" cannot alone satisfy a plaintiff's
burden as to pretext).
{¶ 27} Here, the sole evidence offered by appellant was his self-serving testimony
that other employees were not disciplined for similar acts. Appellant failed, however, to
identify any specific individuals or acts, nor does he cite to any record evidence in support
of his assertions, and we agree with the trial court that such unsubstantiated allegations are
No. 20AP-41 8

insufficient to show pretext. See, e.g., McIlwain v. Ohio Dept. of Mental Health, 409
F.Supp.2d 908, 918 (N.D.Ohio 2006) (although plaintiff alleges she was disciplined for
"behavior for which 'other * * * employees' who engaged in the same behavior were not
disciplined, she fails to identify such employees and the circumstances surrounding their
discipline, rendering this a mere self-serving statement of no evidentiary value"); Brogan
v. Family Video Movie Club, Inc., 6th Dist. No. L-13-1283, 2015-Ohio-70, ¶ 23 (plaintiff's
vague assertion that two unidentified males engaged in similar misconduct but were not
disciplined failed to create a genuine issue of material fact as to pretext). Based on the
record presented, the trial court did not err in finding appellant could not rely on mere
conjecture, nor did the court err in its determination that appellant's uncorroborated
deposition testimony did not create a genuine issue of material fact regarding pretext.
{¶ 28} Appellant also maintains, in support of a finding of pretext, that appellees'
explanation for his termination changed. Specifically, appellant argues that, despite the
city's admission that his failure to mark utility lines did not cause damages or injuries, Arsh
testified that appellant caused monetary damages by failing to mark a water line.
{¶ 29} While an employer's "inconsistent justification for termination may support
a finding of pretext, * * * differences that do not suggest actual inconsistency in the decision
maker's justifications do not establish pretext." Voltz v. Erie Cty., 617 Fed.Appx. 417, 427
(6th Cir.2015). Further, courts have held that apparent inconsistencies do not support a
finding of pretext where they "all 'revolve around a single idea.' " Ercegovich v. Goodyear
Tire & Rubber Co., 154 F.3d 344, 351 (6th Cir.1998) (trial court properly found no
inconsistency among "three 'different' reasons" offered by employer for elimination of
plaintiff's position because they all revolve around single idea that plaintiff's position could
no longer be justified as being cost-effective). See also Gunn v. Senior Servs. of N.
Kentucky, 632 Fed.Appx. 839, 847 (6th Cir.2015) ("amplifying the core reason that initially
drove the employer to discharge an employee * * * with additional, but consistent, non-
discriminatory reasons does not constitute 'shifting justifications' ").
{¶ 30} In addressing appellant's argument on this issue in the instant case, the trial
court found the employer's reasons for appellant's termination "have been consistent."
(Remand Decision at 6.) Based on this court's de novo review, we agree.
{¶ 31} The record indicates that testimony by Arsh, in which she stated appellant
failed to mark a water line, resulting in damage to the line, was consistent with charges
No. 20AP-41 9

brought during a labor relations hearing (charging appellant with insubordination and
neglect of duty, and alleging "[t]he City's water line was hit and damaged during excavation
of the site"). (Aug. 14, 2008 Notice of Hearing.) The record on summary judgment
included the affidavit of Douglas A. Sarff, a human resources manager responsible for
maintaining the city's employee personnel and disciplinary files. Sarff averred in his
affidavit that, prior to appellant's complaint against Stover, the department "began
receiving complaints from inspectors and contractors that [appellant] was not properly
marking utility lines at various job sites," and that an investigation revealed "eight OUPS
tickets that [appellant] had not completed properly." (Sarff Aff. at ¶ 12.) He further averred
that, because appellant "did not properly mark the utility lines, a water line was hit and
damaged." (Sarff Aff. at ¶ 12.)
{¶ 32} Appellant acknowledged such fact during his deposition testimony, which
included the following exchange regarding the contents of a deposition exhibit:
Q. I'll hand you what I've marked as Exhibit 4. And this is
Disciplinary Action, employee's name Carlton Love, correct?

A. Yes, ma'am.

* * *

Q. And it looks like this is a violation of City Work Rule No. 6,
Insubordination, and No. 7, Neglect of Duty, for an emergency
OUPS ticket, correct?

A. Yes, ma'am, that’s what it looks like here.

Q. And here it says the City's water line was hit and damaged
during excavation after you said you closed out an OUPS ticket
and it wasn't properly done, correct?

A. Yes, ma'am. * * *

(Appellant Depo. at 42.)

{¶ 33} Upon review, we find the trial court properly found the stated reasons were
not inconsistent as they all relate to the "same basic concept," i.e., that appellant failed to
properly mark utility lines. Gunn at 847 (no inference of pretext warranted because each
of employer's stated reasons "is consistent with the others," and all relate to same basic
No. 20AP-41 10

concept that plaintiff "failed to adequately perform" job duties). Accordingly, the alleged
inconsistency cited by appellant is "insufficient to raise an inference of pretext." Id.
{¶ 34} Based on this court's de novo review, the trial court did not err in its
determination that appellant presented insufficient evidence to demonstrate that appellees'
stated legitimate, non-discriminatory reason for his termination was mere pretext for
discrimination. Accordingly, because appellant has failed to establish a genuine issue of
material fact regarding pretext, we conclude the trial court did not err in granting summary
judgment in favor of appellees.
{¶ 35} Based on the foregoing, appellant's single assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.

KLATT and LUPER SCHUSTER, JJ., concur.

_____________________