Last week, a divided Franklin County Court of Appeals reversed summary judgment entered by the Ohio Court of Claims in favor of the State on a reverse discrimination and retaliation lawsuit. Whatley v. Ohio Dept. of Rehab. & Corr., 2012-Ohio-944. In that case, the white plaintiff alleged an ongoing pattern of discrimination and retaliation by black supervisors on account of her relationships and marriage to black men. The Court dismissed most of the claims on account of the two-year statute of limitations and a release she signed in connection with a return-to-work agreement. However, the majority of the Court found that she had identified a material factual dispute concerning her vague allegations that she had been discriminated and retaliated against following her reinstatement in how she was disciplined for poor attendance.
Notwithstanding the valid statute of limitations defense, Judge Tyack still rejected portions of the employer's supporting affidavit when the conclusory allegations did not appear to be based on personal knowledge concerning time-barred events and conflicted with the plaintiff's affidavit about physical assaults. Id. at ¶¶12-13. Her affidavit contended that the harassment continued after she returned to work and that she had been disciplined throughout her employment for attendance violations when similarly situated black corrections officers were not so disciplined. The majority did not discuss any heightened burden of proof in a reverse discrimination case, but did note that the alleged harassment was by members of a different race than the plaintiff.
The dissent noted that the plaintiff could not carry her burden of proving harassment following her reinstatement in light of her admission in her Answers to Interrogatories that she no longer had to work with the harassing supervisors after her reinstatement. Thus, her affidavit conflicted with her prior interrogatory responses and should have been disregarded. Moreover her affidavit was so vague about any allegedly harassing or retaliatory incidents following her reinstatement that it should not have been considered sufficient evidence to create a material disputed fact.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
