Last month, the Franklin County Appeals Court affirmed an employer’s summary judgment on FMLA retaliation and sex and race discrimination allegations following the plaintiff’s demotion. Fields-Arnold v. Cent. State Univ. Bd. of Trustees, 2026-Ohio-826. The Court found that the plaintiff waived certain arguments about direct evidence, race discrimination and hostile work environment by failing to provide any substantive argument before the trial or appeals courts. The plaintiff also failed to show replacement outside the protected class or to show that the employer’s explanation for her demotion was pretextual, dooming her sex discrimination and FMLA retaliation claims. While she was not given a specific reason at the time of her demotion, she admitted that her job performance had previously been criticized and she failed to dispute the reasons given in the employer’s summary judgment motion.
According to the Court’s opinion, the plaintiff was encouraged
by the university president to apply for a certain promotion, which she
eventually received. However, in their
first post-promotion meeting, their relationship soured when she requested a
higher salary than offered. Although she
prevailed in receiving a $5K increase, the president allegedly said that she talked
too much and reminded him of his wife.
He later criticized her performance in a few meetings and she was
demoted back to her prior position a few months later. In the meantime, she had applied for and,
after submitting additional documentation, FMLA leave. She was replaced by a
white female and resigned the following year after filing this lawsuit. The
court of claims granted summary judgment on all claims to the employer.
The Court found that she had abandoned her race discrimination claim by failing to make any substantive arguments in her appellate brief when challenging the trial court’s rejection of this claim for failing to show pretext. Indeed, she apparently only used the word “race” three times in her entire brief.
Similarly, it rejected any claims of direct evidence of sex discrimination because she never raised this argument in opposing the summary judgment brief at the trial court level. Moreover, the three alleged comments were not directly related to the issue of her demotion, and thus, were not direct evidence since it still required an inference as to the speaker’s intent.
[His] comments, while disrespectful
and perhaps based on stereotypes, do not satisfy the requirements to constitute
direct evidence of discrimination. “ ‘Direct evidence is proof which speaks
directly to the issue, requiring no support by other evidence.’ ” . . . It “ ‘does not require a factfinder to draw
any inferences in order to conclude that the challenged employment action was
motivated at least in part by prejudice against members of the protected
group.’ ”
In addition, she failed to identify anyone outside her
protected age or sex class who was similarly situated, failed to meet the
employer’s performance expectations and was treated better than her.
The Court also rejected her appeal dismissing her hostile
work environment when the trial court found that three alleged comments over a
four month period were insufficiently pervasive or hostile. As with her direct evidence argument, she
failed to even mention “hostile work environment” when opposing the employer’s
summary judgment motion at the trial court.
As for her FMLA retaliation claim, the trial court had found
that it failed because she received all of the FMLA leave she requested and her
demotion did not deter her from seeking additional FMLA leave. The Court’s majority reversed that
determination, but found she still could not prevail because she failed to
present evidence showing that the university’s dissatisfaction with her
performance was pretext for retaliation. She admitted that the university
president had criticized her performance to her face several times and did not
try to show that those and other criticisms lacked a factual basis or were
insufficient to motivate her demotion, etc. Therefore, the fact that she was not told at
the time of her demotion the specific performance reasons for it, she had
previously been informed about dissatisfaction with her performance and failed
to show those and other criticisms were pretextual.
Even if an employer approves an
employee’s FMLA requests, the employer could still go on to impose an adverse
employment action against the employee for exercising her rights under the
FMLA. . . . And that is exactly what [plaintiff]
alleged in her complaint—that she was demoted because she took FMLA leave. We
find the court of claims erred in concluding [she] “failed to identify an
adverse employment action that was taken against her because she used FMLA
leave.”
. . . .
Although [Plaintiff] did not
receive specific examples of her unsatisfactory performance at or around the
time of the demotion . . . , she was
aware of Dr. Thomas’s dissatisfaction before the demotion occurred. In her
deposition, [she]recounted two meetings where [he] criticized her performance.
. . .
While [her] deposition testimony reflects her general belief that she satisfied the job duties as listed in the job description . . . , she did not contest the specific assertions [he] made about her purportedly unsatisfactory work.
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.
