Preview
Motion No. 5113360
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
August 25,2023 13:52
By: NATHAN J. PANGRACE 0084191
Confirmation Nbr. 2947162
DANITA MCNAIR CV 22 971846
vs.
Judge: JOAN SYNENBERG
LAKEWOOD SENIOR CAMPUS, LLC
Pages Filed: 33
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
DANITA MCNAIR,
Plaintiff,
Case No. CV 22 971846
v.
Judge Joan Synenberg
LAKEWOOD SENIOR CAMPUS, LLC
D/B/A O'NEILL HEALTHCARE
ASSISTED LIVING,
Defendant.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, Defendant Lakewood Senior
Campus, LLC D/B/A O'Neill Healthcare (“O’Neill Healthcare”) moves for summary judgment on
all claims brought by Plaintiff Danita McNair because there are no genuine disputes of material
fact and Defendant is entitled to judgment as a matter of law. The supporting points and authorities
are set forth in the attached Brief in Support and accompanying exhibits.1
/s/ Nate J. Pangrace________________
Nate J. Pangrace, Bar No. 0084191
npangrace@littler.com
LITTLER MENDELSON, P.C.
Key Tower
127 Public Square
Suite 1600
Cleveland, OH 44114-9612
Telephone: 216.696.7600
Facsimile: 216.696.2038
Attorneys for Defendant
1The deposition transcripts and exhibits of Plaintiff, Danita McNair and Samantha Willis were filed with the Court
on August 24, 2023.
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TABLE OF CONTENTS
Page
I. INTRODUCTION.......................................... 1
II. UNDISPUTED FACTS....................................... 2
III. LAW AND ARGUMENT..................................... 4
A. Summary Judgment Standard............................... 4
B. McNair's Discrimination Claims Fail as a Matter of Law.............. 5
1. Legal Framework for Analyzing Race and Sex Discrimination
Claims........................................ 5
2. McNair Cannot Establish a Prima Facie Case of Race or Sex
Discrimination Because She Has No Evidence That O’Neill
Healthcare Treated Similarly Situated, Non-Protected Employees
More Favorably...................................7
3. McNair Cannot Establish Pretext....................... 8
C. McNair's Retaliation Claim Fails as a Matter of Law................ 11
1. Legal Framework for Analyzing Retaliation Claims............ 11
2. McNair Cannot Establish a Prima Facie Case of Retaliation
Because the Decision Maker - David O’Neill - Was Not Aware of
Her Alleged Protected Activity......................... 12
3. McNair Cannot Establish a Prima Facie Case of Retaliation
Because There Is No Evidence That She Engaged in Protected
Activity...................................... 14
4. McNair Cannot Prove That O’Neill Healthcare's Stated Reasons
for Her Discharge Were Pretext for Retaliation.............. 15
D. McNair's Whistleblower Claim Fails as a Matter of Law.............. 16
1. Legal Framework for Whistleblower Claims................ 16
2. McNair Cannot Establish a Prima Facie Case Under the
Whistleblower Act Because She Failed to Strictly Comply With
the Statute..................................... 16
3. McNair Cannot Prove That O’Neill Healthcare's Stated Reasons
for Her Discharge Were Pretext for Retaliation.............. 19
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E. McNair’s Wrongful Discharge in Violation of Public Policy claim fails as
a Matter of Law...................................... 19
IV. CONCLUSION........................................... 21
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TABLE OF AUTHORITIES
Page(s)
Cases
A.J.R. v. Lute,
163 Ohio St. 3d 172, 2020-Ohio-5168 (2020)............................ 18
Abrams v. American Computer Technology,
168 Ohio App.3d 362, 2006-Ohio-4032, 860 N.E.2d 123 (1st Dist.).............. 17
Arnold v. City of Columbus,
Case No. 2:08-cv-0031 (S.D. Ohio Apr. 4, 2011).......................... 6
Bank ofNew York Mellon v. Zayed,
No. 108623, 2020-Ohio-4058 (8th Dist. Aug. 13, 2020)...................... 5
Barnett v. Dept, ofVeterans Affairs,
153 F.3d 338 (6th Cir. 1998).......................................6
Bell v. Beightler,
10th Dist. No. 02AP-569, 2003-Ohio-88.............................. 18
Birch v. Cuyahoga Cty. Prob. Court,
173 Ohio App. 3d 696, 2007-Ohio-6189 (8th Dist.)......................... 6
Blizzard v. Marion Tech. College,
698 F.3d 275 (6th Cir. 2012)...................................... 14
Booker v. Brown & McNairon Tobacco Co.,
879 F.2d 1304 (6th Cir.1989)......................................14
Buckeye Union Ins. v. Consol. Stores Corp.,
68 Ohio App. 3d 19 (10th Dist. 1990)................................. 5
Chandler v. Empire Chem.,
99 Ohio App.3d 396 (1994).......................................16
Chisholm v. Cleveland Clinic Foundation,
141 N.E.3d 675 (8th Dist. 2019)................................... 5, 6
Coch v. Gem Indus.,
6th Dist. Lucas No. L-04-1357, 2005-Ohio-3045.......................... 14
Comiskey v. Automotive Industry Action Group,
40 F.Supp.2d 877 (E.D. Mich. 1999)................................. 14
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Contreras v. Ferro Corp.,
73 Ohio St.3d 244, 652 N.E.2d 940 (1995)............................. 17
Cooper v. City ofN. Olmstead,
795 F.2d 1265 ............................................... 13
Davidson v. BP Am., Inc.,
125 Ohio App.3d 643, 709 N.E.2d 510 (8th Dist.1997)...................... 16
Delgos v. MitekIndus., Inc.,
No. 00-CA-278, 2001-Ohio-3378 (7th Dist. Dec. 18, 2001).................... 5
DiCarlo v. Potter,
358 F.3d 408 (6th Cir. 2004).......................................6
Dresher v. Burt,
75 Ohio St. 3d 280 (Ohio 1996)................................... 4, 5
Evans v. Toys R Us Ohio,
32 F. Supp. 2d 974 (S. D. Ohio 1999)................................. 9
Giles v. Norman Noble, Inc.,
88 Fed. App'x 890 (6th Cir. 2004)................................7, 8, 14
Greaney v. Ohio Turnpike Comm.,
11th Dist. No.2005-P-0012, 2005-Ohio-5284........................... 18
Greer-Burger v. Temesi,
116 Ohio St. 3d 324, 2007-Ohio-6442 (Ohio 2007)........................ 11
Hafford v. Seidner,
183 F.3d 505 (6th Cir. 1999)...................................... 13
Han v. Univ. ofDayton,
2015-Ohio-346, 28 N.E.3d 547 (2d Dist.).............................. 18
Hice v. David J. Joseph Co.,
182 F.Supp.3d 775, affd, 678 Fed.Appx. 329 (S.D. Ohio 2016)................ 20
Hooks v. Ciccolini,
9th Dist. No. 20745, 2002-Ohio-2322................................ 18
Hopkins v. Canton City Bd. ofEduc.,
477 Fed. App'x 349 (6th Cir. 2012).................................. 12
Hout v. City of Mansfield,
550 F. Supp. 2d 701 (N.D. Ohio April 23, 2008)......................... 7, 8
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Hughes v. Miller,
181 Ohio App. 3d 440, 2009-Ohio-963 (8th Dist.)......................... 11
Jackson v. Champion Natl. Bank & Trust Co.,
10th Dist. Franklin No. 00AP-170 (Sept. 26, 2000)........................ 14
Johnson v. Kroger,
319 F.3d 858 (2003).......................................... 5, 6
Klepsky v. UPS,
N.D.Ohio No. 1:04 CV 1683, 2005 WL 6938983, affd 489 F.3d 264 (6th
Cir.2007) .................................................. 17
Kuivila v. City of Conneaut,
430 Fed. Appx. 402 (6th Cir. 2011).................................. 20
Lee v. Vill. of Cardington,
142 Ohio St.3d 488, 2014-Ohio-5458, 33 N.E.3d 12........................17
McDermott v. Continental Airlines, Inc.,
339 Fed.Appx. 552 (6th Cir.2009)...................................20
McDonald v. Ford Motor Co.,
208 F. Supp. 2d 837 (N.D. Ohio April 19, 2002).......................... 13
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).......................................... 6, 7
Meyers v. Goodrich Corp.,
No. 95996, 2011-Ohio-3261 (8th Dist. June 30, 2011).................... 11, 12
Momah v. Dominguez,
239 F. App'x 114 (6th Cir. 2007).................................... 6
Moshier v. Jeg's High Performance Centers, Inc.,
650 N.E.2d 189 (10th Dist. 1994)................................... 19
Needham v. Provident Bank,
110 Ohio App. 3d 817 (8th Dist. 1996)................................ 5
Nix v. WLCY Radio/Rahall Communications,
738 F.2d 1181 (11th Cir. 1984)..................................... 9
Pelcha v. MW Bancorp, Inc.,
455 F. Supp. 3d 481 (S.D. Ohio April 17, 2020).......................... 11
Pfleger v. BP Am., Inc.,
No. 68874, 1996 WL 355290 (8th Dist. June 27, 1996)....................... 5
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Pohmer v. JPMorgan Chase Bank, N.A.,
10th Dist. No. 14AP-429, 2015-Ohio-1229............................. 18
Poluse v. City of Youngstown,
135 Ohio App.3d 720, 735 N.E.2d 505 (7th Dist.1999)...................... 17
Putney v. Contract Bldg. Components,
No. 14-09-21, 2009-Ohio-6718 (3rd Dist. Dec. 21, 2009).................... 12
Ressler v. Attorney Gen. of the State of Ohio,
No. 14AP-519, 2015-Ohio-777 (10th Dist. March 5, 2015)...................7, 9
Shaffer v. OhioHealth Corp. ,
10th Dist. No. 04AP-236, 2004-Ohio-6523............................. 19
Smith v. Dep't ofPub. Safety,
2013-Ohio-4210 (10th Dist.) 9, 10, 11, 12
Smith v. Expressjet Airlines, Inc.,
No. 101336, 2015-Ohio-313 (8th Dist.)...............................6, 7
Tennial v. United Parcel Service, Inc.,
840 F.3d 292 (6th Cir. 2016).................................... 6, 10
Tex. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981)............................................ 6
Thompson v. Potter,
No. C2-04-291, 2006 WL 783395 (S.D. Ohio March 27, 2006)................. 13
Univ, of Tex. Southwestern Med. Ctr. v. Nassar,
570 U.S. 338 (2013)........................................... 12
Valentine v. Westshore Primary Care Assoc.,
No. 89999, 2008-Ohio-4450 (8th Dist. Sept. 4, 2008)................... 6, 14, 15
Vossman AirNet Systems, Inc., No. 12AP-971, 2013-Ohio-4675, 18 (10th Dist.
Oct. 22, 2013).............................................. 6, 9
Weaver v. Ohio State Univ.,
71 F.Supp.2d 789 (S.D. Ohio 1998)..................................15
Wholf v. Tremco, Inc.,
2015-Ohio-171 (8th Dist.)....................................... 12
Wiles v. Medina Auto Parts,
96 Ohio St.3d 240 (2002)....................................... 20
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Wood v. Dorcas,
142 Ohio App.3d 783 (6th Dist.2001) 16
Wright v. Petroleum Helicopter,
8th Dist. No. 71168, 1997 WL 578939 (Sept. 18, 1997) 16
Zeman v. Goodrich Corp.,
N.D.Ohio No. 1:04 CV 1310, 2005 WL 1668498 2005 U.S. Dist. LEXIS
37004 (N.D. Ohio) 17
Statutes
ADA 13
Ohio Civil Rights Act, R.C. Chapter 4112 1
Ohio Whistleblower Protection Act, R.C. 4113.52 passim
R.C. 4112.02 5, 11
R.C. 4113.52(A)(1)(a) 19
Other Authorities
Rule 56 of the Ohio Rules of Civil Procedure passim
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BRIEF IN SUPPORT
I. INTRODUCTION
Plaintiff Antoine McNair (African American) is a former O’Neill Healthcare nursing
assistant. McNair claims that O’Neill Healthcare discriminated against her based on her race and
sex in violation of the Ohio Civil Rights Act (“OCRA”), R.C. Chapter 4112. She further claims
that O’Neill Healthcare retaliated against her for complaining about an assisted living resident in
violation of the OCRA and the Ohio Whistleblower Protection Act, R.C. 4113.52. In reality,
O’Neill Healthcare terminated McNair's employment after she threw a pitcher of cold juice on that
same resident. The Ohio Department of Health (“ODH”) investigated the incident, determined
McNair had abused the resident, and issued O’Neill Healthcare a citation. McNair's repugnant
actions were also a flagrant disregard of the company’s personnel policies, its Code of Ethics, and
her training. Not only are McNair's claims completely unsupported by the facts and the law, the
record evidence (much of it McNair's own testimony) establishes that her claims have no basis in
reason.
The only facts McNair offered during her deposition to support her theory that O’Neill
Healthcare discriminated against her because of race and sex were that the resident, who is not an
O’Neill Healthcare employee, allegedly called her offensive names. McNair offered no other
evidence tying her discharge to her race or sex, such as the company’s favorable treatment of male
or non-African American employees. McNair concedes that her unsupported speculations are her
sole evidence of discrimination.
Similarly, McNair has nothing but her own speculation to support her belief that O’Neill
Healthcare discharged her in retaliation for complaining about the resident. In fact, the O’Neill
Healthcare management employee who decided to terminate McNair after ODH found she abused
the resident was unaware that McNair had raised complaint against him. This lack of knowledge
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about McNair's alleged protected activity dooms her retaliation claim.
In sum, McNair fails to establish a prima facie case of discrimination or retaliation and
fails to rebut O’Neill Healthcare's legitimate non-discriminatory and non-retaliatory reasons for
her termination. O’Neill Healthcare is entitled to summary judgment on her claims.
II. UNDISPUTED FACTS
O’Neill Healthcare is a family-owned company that provides senior care, including
assisted living and skilled nursing facilities. (Affidavit of David O’Neill, “O’Neill Aff.,” attached
hereto as Exhibit A, at ^2.) O’Neill Healthcare hired McNair as a nursing assistant in the assisted
living unit of its Lakewood, Ohio facility on February 11, 2022. (O’Neill Aff. at ^3.) McNair’s
duties included assisting residents with bathing, grooming, dressing, eating, and drinking. (Id.) She
was also responsible for monitoring patients’ physical and mental condition and transferring them
between their beds, chairs, and wheelchairs.2 (Id.)
McNair alleges that shortly after she began working at O’Neill Healthcare, in “February or
March” 2022, she verbally complained to her supervisor, Assisted Living Director Tammy Seibert,
about a resident “threatening” her. (Transcript of Plaintiff’s Deposition, “Pl. Dep.,” at 73:4-15;
75:19-77:10). The resident at issue (the “Male Resident”) is an elderly male who suffers from a
cognitive disorder that causes him confusion and memory loss. (O’Neill Aff. at ^4.) It also
occasionally changes in his mood, prompting him to make inappropriate remarks to staff and other
residents. (Id.) Such disorders, including dementia, are common with residents of assisted living
and skilled nursing facilities like O’Neill Healthcare. (Id. at ^5.) After all, many elderly persons
permanently move into such facilities because they suffer from cognitive impairments that make
2Plaintiff lied to obtain her job with O’Neill Healthcare. On her application, she certified that she was a high school
graduate and had never been convicted of a crime. The company subsequently learned that she had a previous assault
conviction and did not, in fact, finish high school or obtain a GED. (Pl. Dep. at Ex. A, 44:17-45:2; 111:14-112:3).
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then unable to care for themselves. (Id.)
O’Neill Healthcare determined the Male Resident did not pose a physical threat to
McNair’s safety. (Id. at ^6.) Although he occasionally made inappropriate remarks, the Male
Resident never physically harmed an O’Neill Healthcare employee or resident. (Id.) He also spent
virtually all of his time in either his bed or a motorized wheelchair. (Id.; Transcript of Samantha
Willis’ Deposition, “Willis Dep.,” at 34:24-35:1.) In response to McNair’s complaints about the
Male Resident, Tammy Seibert and a Nursing Coordinator, Tracy Carlisle, instructed him to
refrain from making inappropriate remarks towards McNair. (Pl. Dep. 76:9-11.) They also directed
both individuals to avoid further contact with one another. (Id.)
Nonetheless, McNair became involved in another altercation with him in the facility dining
room on May 22, 2022, which resulted in her throwing a pitcher of lemonade at him. (O’Neill Aff.
at *7; Pl. Dep. 78:5-16.) McNair subsequently called the Lakewood Police Department and
reported that the Male Resident threatened her. (Id.) Lakewood police officers visited O’Neill
Healthcare’s facility and spoke to both McNair and Male Resident. (Pl. Ex. J, 104:12-106:15.)
McNair reported “inappropriate comments” by the Male Resident and his “ongoing verbal issue”
with staff. (Id.) The Male Resident responded by informing the police officers that McNair had
thrown lemonade at him. (Id.) The officers instructed the Male Resident to “keep his distance”
from McNair; however, they declined to investigate further. (Id.) Neither individual was charged
with a crime.
O’Neill Healthcare also conducted an investigation of the incident, led by the Lakewood
Facility Administrator, Samantha Willis. (O’Neill Aff. at ^8; Willis Dep. 37:17-38:19.) Willis sent
McNair home pending the investigation. (O’Neill Aff. at ^8; Willis Dep. 40:18-20.) She
interviewed McNair, the Male Resident, and residents in the dining room who had witnessed the
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3
incident. (Id.) Following the investigation, the company determined McNair behaved in an
unprofessional and inappropriate manner. (O’Neill Aff. at *9.) It issued her a written warning and
informed her that further similar incidents would result in her immediate termination. (Id.) When
McNair returned to work, she was reassigned to work in the facility’s kitchen, without a reduction
in pay, to separate her from the Male Resident. (Id.; Willis Dep. 45:17-19.)
O’Neill Healthcare also reported the incident to the Ohio Department of Health (“ODH”),
as required by law. (O’Neill Aff. at *10.) The Male Resident’s family also filed an abuse complaint
with ODH, which ODH is responsible for licensing and certifying nursing homes and assisted
living facilities in the State of Ohio. (Id.) It also conducts on-site inspections and surveys for
compliance with state and federal rules and regulations and to ensure the quality of care and quality
of life of the residents. (Id.) ODH conducted its own independent investigation and interviewed
the same witnesses. (Id. at *11) Ultimately, despite McNair’s allegations that the Male Resident
“threatened” her, ODH concluded that McNair had abused him when she threw the pitcher of
lemonade at him. (Id.; Willis Dep. 45:24-46:5.) ODH therefore issued O’Neill Healthcare a citation
for the incident. (O’Neill Aff. at *11.)
Because ODH investigated and cited O’Neill Healthcare for resident abuse, O’Neill
Healthcare’s Director of Operations, David O’Neill, decided to terminate McNair’s employment
on June 3, 2022. (Id. at *12.)
III. LAW AND ARGUMENT
A. Summary Judgment Standard
Summary judgment is appropriate under Ohio Civ. R. 56 when the evidentiary record
“demonstrate^] the absence of a genuine issue of material fact on the essential element(s) of the
nonmoving party's claims.” Dresher v. Burt, 75 Ohio St. 3d 280, 293 (Ohio 1996). When the
moving party properly supports its motion with depositions, answers to interrogatories, or other
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4
evidence of the type listed in Civ. R. 56(C), the adverse party “may not rest upon the mere
allegations or denials of the party's pleadings,” but must point to “specific facts” in the evidentiary
record that demonstrate a “genuine issue for trial.” Id. (citing Ohio Civ. R. 56(E)). “‘Mere
speculation and unsupported conclusory assertions are not sufficient’ to meet the nonmovant's
reciprocal burden under Civ. R. 56(E) to withstand summary judgment.” Bank ofNew York Mellon
v. Zayed, No. 108623, 2020-Ohio-4058, 49 (8th Dist. Aug. 13, 2020) (citation omitted).
If the non-moving party cannot establish through valid evidence an essential element of
her claim, summary judgment must be granted in favor of the moving party. See Dresher, 75 Ohio
St. 3d at 293; Delgos v. MitekIndus., Inc., No. 00-CA-278, 2001-Ohio-3378,^5-6 (7th Dist. Dec.
18, 2001). “The mere existence of some factual disputes, if not material, will not defeat a summary
judgment otherwise proper.” Pfleger v. BP Am., Inc, No. 68874, 1996 WL 355290, at *2 (8th Dist.
June 27, 1996) (citing Buckeye Union Ins. v. Consol. Stores Corp., 68 Ohio App. 3d 19 (10th Dist.
1990)). A “material fact” is one which would affect the outcome of the suit under the applicable
substantive law. Needham v. Provident Bank, 110 Ohio App. 3d 817, 826 (8th Dist. 1996).
B. McNair's Discrimination Claims Fail as a Matter of Law.
1. Legal Framework for Analyzing Race and Sex Discrimination Claims
McNair’s Complaint alleges that O’Neill Healthcare discriminated against her because of
her race and sex in violation of R.C. 4112.02. “To prevail on an employment-discrimination claim,
the plaintiff must prove discriminatory intent through either direct or indirect methods of proof.”
Chisholm v. Cleveland Clinic Foundation, 141 N.E.3d 675, 679 (8th Dist. 2019). Direct evidence
is “evidence which, if believed, requires the conclusion that unlawful discrimination was at least
a motivating factor in the employer's actions.” Johnson v. Kroger, 319 F.3d 858, 865 (2003).
Unlike circumstantial evidence, direct evidence “does not require a factfinder to draw any
inferences in order to conclude that the challenged employment action was motivated at least in
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5
part by prejudice against members of the protected group.” Id. Further, direct evidence of
discrimination “must establish not only that the plaintiffs employer was predisposed to
discriminate ... but also that the employer acted on that predisposition.” Momah v. Dominguez, 239
F. App'x 114, 121 (6th Cir. 2007) (citing DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004)
(quotation omitted)).
Absent direct evidence of discrimination, a plaintiff must proceed under the burden shifting
approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Chisholm,
141 N.E.3d at 679. To establish a prima facie case of race discrimination under McDonnell
Douglas, a plaintiff must show that she: (1) is a member of a protected class; (2) suffered an
adverse employment action; (3) was qualified for the position lost; and (4) was treated less
favorably than a similarly situated individual outside of her protected class. Birch v. Cuyahoga
Cty. Prob. Court, 173 Ohio App. 3d 696, 704-05, 2007-Ohio-6189, 21 (8th Dist.) (citing Barnett
v. Dept, of Veterans Affairs, 153 F.3d 338, 341 (6th Cir. 1998)); Arnold v. City of Columbus, Case
No. 2:08-cv-0031 (S.D. Ohio Apr. 4, 2011); Valentine v. Westshore Primary Care Assoc., No.
89999, 2008-Ohio-4450, 63 (8th Dist. Sept. 4, 2008); Chisholm 141 N.E.3d at 679.; Smith v.
Expressjet Airlines, Inc., No. 101336, 2015-Ohio-313, ^13 (8th Dist.); Tennial v. United Parcel
Service, Inc, 840 F.3d 292, 303 (6th Cir. 2016).
If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate,
but not prove, a legitimate, non-discriminatory reason for the challenged decision. Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Chisholm, 141 N.E.3d at 679. Once the
employer articulates such a reason, the burden shifts back to the plaintiff to prove that the
employer’s justification is merely a pretext for discrimination “and that the real reason was
discriminatory in nature.” Id. (internal citation omitted); Vossman AirNet Systems, Inc., No. 12AP-
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6
971, 2013-Ohio-4675, 18 (10th Dist. Oct. 22, 2013); Ressler v. Attorney Gen. of the State of Ohio,
No. 14AP-519, 2015-Ohio-777 (10th Dist. March 5, 2015).
Here, McNair lacks any direct evidence that O’Neill Healthcare took an adverse
employment action against her because of her race or sex, and she cannot establish a prima facie
case under McDonnell Douglas.
2. McNair Cannot Establish a Prima Facie Case of Race or Sex
Discrimination Because She Has No Evidence That O’Neill Healthcare
Treated Similarly Situated, Non-Protected Employees More
Favorably.
McNair cannot establish a prima facie case of race or sex discrimination because she has
no evidence that O’Neill Healthcare treated similarly situated employees more favorably. This
alone is fatal to McNair's case. Hout v. City ofMansfield, 550 F. Supp. 2d 701, 723-24 (N.D. Ohio
April 23, 2008) (granting summary judgment where plaintiffs failed to make out prima facie case
of discrimination by offering evidence of valid comparators); Giles v. Norman Noble, Inc., 88 Fed.
App'x 890, 895 (6th Cir. 2004) (affirming summary judgment where plaintiff failed to show a
genuine issue of material fact as to whether a person outside the protected class was treated more
favorably than she was). “To be similarly situated, the parties to be compared must have 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.” Smith v. Expressjet Airlines, Inc., 2015-Ohio-
313, ^15 (internal citation omitted).
McNair's claims fail at the outset because she cannot identify any other employees of
O’Neill Healthcare who engaged in similar misconduct, but was not terminated. During her
deposition, McNair was unable to identify a single comparator.
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12 Q Do you know of any other O’Neill
13 Healthcare employees that threw food or
14 drink on a resident?
15 A No.
16 Q Do you know of any other O'Neill
17 Healthcare employees that were found to
18 have committed resident abuse?
19 A No.
(Pl. Dep. 70:12-19.) Samantha Willis testified during her deposition that she was involved in other
investigations of resident abuse by O’Neill Healthcare employees, but McNair was the only
employee terminated. (Willis Dep. 33:11-17.) These other individuals are not proper comparators
for two reasons. First, McNair has not demonstrated the alleged comparators were outside her
protected class, dealt with the same supervisor, or were subject to the same standards. Second, the
alleged comparators did not engage in the same misconduct. McNair was the only employee that
ODH determined committed resident abuse and that caused ODH to issue a citation to O’Neill
Healthcare. (Willis Dep. 482:49:1.) In other investigations, there was no finding of abuse by ODH
and no citation of the company. Thus, an important distinction explains why O’Neill Healthcare
treated McNair differently.
McNair's failure to point to a single similarly-situated, male or non-African American
comparator is fatal to her prima facie case, and her discrimination claims fail as a matter of law.
See Hout v. City of Mansfield, 550 F. Supp. 2d 701, 723-24 (N.D. Ohio April 23, 2008) (granting
summary judgment where plaintiffs failed to make out prima facie case of discrimination by
offering evidence of valid comparators); Giles v. Norman Noble, Inc., 88 Fed. App'x 890, 895 (6th
Cir. 2004) (affirming summary judgment where plaintiff failed to show a genuine issue of material
fact as to whether a person outside the protected class was treated more favorably than she was).
3. McNair Cannot Establish Pretext.
Even if McNair could establish a prima facie case of race or sex discrimination (she
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8
cannot), her discrimination claims still fail because O’Neill Healthcare had legitimate, non-
discriminatory reasons for discharging her, and she has no evidence that those reasons are a pretext
for discrimination. To establish pretext, McNair must prove “both that the reason [for her
termination] was false, and that discrimination was the real reason.” Vossman AirNet Systems, Inc.,
No. 12AP-971, 2013-Ohio-4675, 18 (10th Dist. Oct. 22, 2013); Ressler v. Attorney Gen. of the
State of Ohio, No. 14AP-519, 2015-Ohio-777 (10th Dist. March 5, 2015). To satisfy her burden of
proving pretext, McNair must show that O’Neill Healthcare’s proffered reasons for her
termination: (1) had no basis in fact; (2) were not the real reasons; or (3) were insufficient to
motivate or explain the decision. Smith v. Dep't ofPub. Safety, 2013-Ohio-4210,^ 77 (10th Dist.).
An employer may make employment decisions “for a good reason, a bad reason, a reason based
on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”
Evans v. Toys R Us Ohio, 32 F. Supp. 2d 974 (S. D. Ohio 1999) (quoting Nix v. WLCY
Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)).
McNair has no such evidence of pretext. It is undisputed O’Neill Healthcare’s proffered
reason for terminating her employment was factually true. McNair admitted during her deposition
that ODH determined she committed resident abuse, and that O’Neill Healthcare terminated her
for that reason:
17 Q The Ohio Department ofHealth reviewed
18 the incident?
19 MR. SHATTUCK: Objection.
20 Ifyou know you can answer.
21 A Yes.
22 Q And the OhioDepartment of Health
23 confirmed resident abuse, correct?
24 A Yes.
25 Q And that's why O'NeillHealthcare
1 terminated you, correct?
2 MR. SHATTUCK: Objection.
3 If you know.
4 A Yes.
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9
(Pl. Dep. Ex. I, 66:8-67:4.)
Further, McNair can present no triable dispute that her resident abuse was not the “real
reason” for her discharge. During her deposition, McNair agreed that resident safety and well
being are of the utmost importance to assisted living and nursing home facilities like O’Neill
Healthcare. (Pl. Dep. 53:8-12.) She acknowledged that O’Neill Healthcare trained her to treat
residents suffering from cognitive impairment like dementia like adults with respect and kindness,
to avoid scolding, correcting, or arguing with residents. (Pl. Dep. Ex H, 62:11-63:24.)
Nonetheless, McNair admitted during her deposition to throwing a pitcher of juice at the Male
Resident and that her conduct: (1) violated O’Neill Healthcare’s policy requiring employees to
treat residents with respect and decency (Pl. Dep. Ex. D, 53:13-54:23); (2) violated O’Neill
Healthcare’s Code of Ethics prohibiting behavior causing mental or emotional distress to a resident
(Pl. Dep. Ex E, 55:17-57:10.); (3) met the definition of “abuse” under O’Neill Healthcare’s policy
and Ohio law (Pl. Dep. Ex F, 58:11-59:24.); and (4) violated her company training. (Pl. Dep. 63:25
64:8.) McNair was fully aware of the company’s policies and that mistreating a resident was
grounds for immediate dismissal. (Pl. Dep. Exs. C, D, 50:7-51:6, 53:13-54:23.)
Finally, McNair cannot prove pretext under the third method, by showing that O’Neill
Healthcare's reasons for discharging her were insufficient. To meet this burden, McNair must show
that similarly situated employees outside of her protected class were treated more favorably. Smith,
2013-Ohio-4210, ^86. However, as discussed above, McNair admits she cannot point to any
comparator who was not terminated after being found by ODH to have committed resident abuse
(See supra). Tennial v. United Parcel Svc., Inc., 840 F.3d 292, 303-305 (6th Cir. 2016) (affirming
summary judgment where employee failed to present proper comparators to show that employer's
proffered nondiscriminatory reason for adverse actions was pretext for race discrimination);
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10
Pelcha v. MW Bancorp, Inc., 455 F. Supp. 3d 481, 506-507 (S.D. Ohio April 17, 2020). What’s
more, McNair flatly admitted during her deposition that neither O’Neill Healthcare nor its
employees treated her differently because of her gender:
6 Q Okay. Did O'Neill Healthcareor its
7 employees treatyou differently because
8 of your gender?
9 A No.
(Pl. Dep. 71:6-9.) When asked to identify evidence that O’Neill Healthcare treated her differently
because of her race, McNair’s only response was that Male Resident called her “half breed.” (Pl.
Dep. 71:10-23.) However, she conceded that no O’Neill Healthcare employee called her such
names or made negative comments of any kind about her race. (Pl. Dep. 69:18-70-4; 71:23-72:2.)
In sum, McNair cannot present any evidence that her race or sex, instead of her resident
abuse, played any role in her discharge from O’Neill Healthcare, let alone that the company is
lying to cover up discrimination. Because McNair cannot establish the essential elements of her
prima facie case or present any genuine issue of material fact as to pretext, her claim fails as a
matter of law and should be dismissed.
C. McNair's Retaliation Claim Fails as a Matter of Law.
1. Legal Framework for Analyzing Retaliation Claims
McNair’s Complaint alleges that O’Neill Healthcare retaliated against her for engaging in
protected activity in violation of R.C. 4112.02. To establish a prima facie retaliation claim, McNair
must show that (1) she engaged in statutorily protected activity; (2) her employer knew of her
protected activity; (3) she suffered an adverse employment action; and (4) a causal link existed
between the protected activity and the adverse action. Smith, 2013-Ohio-4210, 48; Greer-Burger
v. Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442, at ^13 (Ohio 2007); Hughes v. Miller, 181 Ohio
App. 3d 440, 448, 2009-Ohio-963, 29 (8th Dist.); Meyers v. Goodrich Corp., No. 95996, 2011-
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11
Ohio-3261, 13 (8th Dist. June 30, 2011). If a plaintiff establishes a prima facie case of retaliation,
the employer must articulate legitimate, non-retaliatory reasons for their adverse employment
decisions. Smith, 2013-Ohio-4210, 49. The plaintiff then bears the ultimate burden of proving that
those reasons are pretextual, and that retaliation was the “but for,” or determinative, cause of the
adverse employment decisions. See Wholf v. Tremco, Inc., 2015-Ohio-171, 44 (8th Dist.); Smith,
2013-Ohio-4210, ^50.
2. McNair Cannot Establish a Prima Facie Case of Retaliation Because
the Decision Maker - David O’Neill - Was Not Aware of Her Alleged
Protected Activity.
To demonstrate a causal connection between McNair's complaints and her subsequent
discharge, McNair “must proffer evidence sufficient to raise the inference that [the] protected
activity was the likely reason for the adverse action.” Putney v. Contract Bldg. Components, No.
14-09-21, 2009-Ohio-6718, 51 (3rd Dist. Dec. 21, 2009) (citation omitted). Moreover, following
the U.S. Supreme Court's decision in Univ, of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S.
338 (2013), McNair must prove that she would not have been discharged “but for” her complaints.
Wholf, 2015-Ohio-171, 44; Smith, 2013-Ohio-4210, 60. In other words, McNair must show that
her alleged protected activity was the “determinative factor” in O’Neill Healthcare's adverse
employment decision. Id. ^59-61. McNair cannot meet her burden to establish a prima facie case
of retaliation.
McNair alleges O’Neill Healthcare terminated her employment in retaliation for
complaining about discrimination by the Male Resident. (McNair Dep. 71:17-72:5.) To start,
David O’Neill—the relevant decision maker—did not know about McNair's alleged protected
activity and McNair cannot establish that O’Neill knew of her protected activity. (O’Neill Aff. at
^13.) This is an essential element of her prima facie claim. Meyers, 2011-Ohio-3261, 13.
Hopkins v. Canton City Bd. of Educ., 477 Fed. App'x 349, 361-62 (6th Cir. 2012) (“Hiring
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12
decisionmaker cannot ‘retaliate’ when unaware of the supposed triggering act.”); Thompson v.
Potter, No. C2-04-291, 2006 WL 783395, *18 (S.D. Ohio March 27, 2006) (summary judgment
appropriate where plaintiff failed to present any evidence that decision makers knew of EEO
complaints or considered them when deciding to discharge.). McNair never complained to O’Neill
about the Male Resident, and he never learned of her complaints until she brought this lawsuit.
(O’Neill Aff. at ^14.) Tammy Seibert and Tracy Carlisle, who responded to McNair’s complaints,
did not discuss those complaints with David O’Neill. (Id.) David O’Neill did not know McNair
personally and was not involved in the investigation into her complaints about the Male Resident.
(Id. at ^15) Thus, it is undisputed that David O’Neill did not know about McNair's alleged
protected activity. McNair cannot establish an essential element of her prima facie case and her
retaliation claim must fail.
Setting aside that David O’Neill did not even know about McNair's alleged protected
activity, McNair's retaliation claim also fails because she cannot otherwise demonstrate a causal
connection between her complaints about the Male Resident and her subsequent discharge. First,
McNair cannot show a temporal connection because there was a four-month lapse between her
first complaint in February 2022 and her June 2022 discharge. Hafford v. Seidner, 183 F.3d 505,
515 (6th Cir. 1999) (temporal proximity of “two to five months” between protected conduct and
adverse action insufficient); McDonald v. Ford Motor Co., 208 F. Supp. 2d 837, 846 (N.D. Ohio
April 19, 2002) (lapse of five months or more between employee's filing of EEOC charge and
discipline was too tenuous to show causal connection required to support retaliation claim under
ADA or Ohio law); Cooper v. City of N. Olmstead, 795 F.2d 1265, 1273 (6th Cir. 1986 (four
months between protected activity and allegedly retaliatory action insufficient to establish a prima
facie case).
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13
Finally, McNair cannot point to any similarly situated employees who did not make
complaints of discrimination and who were not terminated for similar resident abuse. Her
retaliation claim fails on this basis as well. Giles v. Norman Noble, Inc., 88 Fed. App'x 890, 895
(6th Cir. 2004) (affirming summary judgment where plaintiff failed to show a genuine issue of
material fact as to whether a person outside the protected class was treated more favorably than
she was). In short, there is not a scintilla of evidence to establish that McNair's protected activity
was the “but for,” or determinative, cause of her discharge. Accordingly, O’Neill Healthcare is
entitled to summary judgment on McNair's retaliation claim.
3. McNair Cannot Establish a Prima Facie Case of Retaliation Because
There Is No Evidence That She Engaged in Protected Activity.
McNair's purported complaints to Seibert and Carlisle included that the Male Resident
called her “half-breed” and stated that McNair “like the women” (in reference to her sexuality).
(Pl. Dep. at 71:21-72:4.) Even if McNair complained about these comments as she alleges,
McNair's complaint was not protected activity. “In order to engage in a protected opposition
activity...;: plaintiff must make an overt stand against suspected illegal discriminatory action.”
Coch v. Gem Indus., 6th Dist. Lucas No. L-04-1357, 2005-Ohio-3045, 132, quoting Comiskey v.
Automotive Industry Action Group, 40 F.Supp.2d 877, 898 (E.D. Mich. 1999); Valentine v.
Westshore Primary Care Assoc, 8th Dist. Cuyahoga No. 89999, 2008-Ohio-4450, 1112-113,
citing and quoting Coch; Jackson v. Champion Natl. Bank & Trust Co., 10th Dist. Franklin No.
00AP-170 (Sept. 26, 2000); Blizzard v. Marion Tech. College, 698 F.3d 275, 288 (6th Cir. 2012).
“Vague charges of discrimination do not invoke the protection of the law.” Coch at 132, citing
Booker v. Brown & McNairon Tobacco Co., 879 F.2d 1304 (6th Cir.1989); Valentine at 1113.
“[C]omplaints concerning unfair treatment in general which do not specifically address
discrimination are [likewise] insufficient to constitute protected activity.” Coch at 132, quoting
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14
Weaver v. Ohio State Univ., 71 F.Supp.2d 789, 793-794 (S.D. Ohio 1998); Valentine at 1113.
McNair purportedly complained to Seibert and Carlisle that the Male Resident made racist
and sexist commen
Preview
Motion No. 5113360 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas August 25,2023 13:52 By: NATHAN J. PANGRACE 0084191 Confirmation Nbr. 2947162 DANITA MCNAIR CV 22 971846 vs. Judge: JOAN SYNENBERG LAKEWOOD SENIOR CAMPUS, LLC Pages Filed: 33 Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO DANITA MCNAIR, Plaintiff, Case No. CV 22 971846 v. Judge Joan Synenberg LAKEWOOD SENIOR CAMPUS, LLC D/B/A O'NEILL HEALTHCARE ASSISTED LIVING, Defendant. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, Defendant Lakewood Senior Campus, LLC D/B/A O'Neill Healthcare (“O’Neill Healthcare”) moves for summary judgment on all claims brought by Plaintiff Danita McNair because there are no genuine disputes of material fact and Defendant is entitled to judgment as a matter of law. The supporting points and authorities are set forth in the attached Brief in Support and accompanying exhibits.1 /s/ Nate J. Pangrace________________ Nate J. Pangrace, Bar No. 0084191 npangrace@littler.com LITTLER MENDELSON, P.C. Key Tower 127 Public Square Suite 1600 Cleveland, OH 44114-9612 Telephone: 216.696.7600 Facsimile: 216.696.2038 Attorneys for Defendant 1The deposition transcripts and exhibits of Plaintiff, Danita McNair and Samantha Willis were filed with the Court on August 24, 2023. Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ TABLE OF CONTENTS Page I. INTRODUCTION.......................................... 1 II. UNDISPUTED FACTS....................................... 2 III. LAW AND ARGUMENT..................................... 4 A. Summary Judgment Standard............................... 4 B. McNair's Discrimination Claims Fail as a Matter of Law.............. 5 1. Legal Framework for Analyzing Race and Sex Discrimination Claims........................................ 5 2. McNair Cannot Establish a Prima Facie Case of Race or Sex Discrimination Because She Has No Evidence That O’Neill Healthcare Treated Similarly Situated, Non-Protected Employees More Favorably...................................7 3. McNair Cannot Establish Pretext....................... 8 C. McNair's Retaliation Claim Fails as a Matter of Law................ 11 1. Legal Framework for Analyzing Retaliation Claims............ 11 2. McNair Cannot Establish a Prima Facie Case of Retaliation Because the Decision Maker - David O’Neill - Was Not Aware of Her Alleged Protected Activity......................... 12 3. McNair Cannot Establish a Prima Facie Case of Retaliation Because There Is No Evidence That She Engaged in Protected Activity...................................... 14 4. McNair Cannot Prove That O’Neill Healthcare's Stated Reasons for Her Discharge Were Pretext for Retaliation.............. 15 D. McNair's Whistleblower Claim Fails as a Matter of Law.............. 16 1. Legal Framework for Whistleblower Claims................ 16 2. McNair Cannot Establish a Prima Facie Case Under the Whistleblower Act Because She Failed to Strictly Comply With the Statute..................................... 16 3. McNair Cannot Prove That O’Neill Healthcare's Stated Reasons for Her Discharge Were Pretext for Retaliation.............. 19 Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846/ Confirmation Nbr. 2947162 / CLDLJ E. McNair’s Wrongful Discharge in Violation of Public Policy claim fails as a Matter of Law...................................... 19 IV. CONCLUSION........................................... 21 Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846i/.Confirmation Nbr. 2947162 / CLDLJ TABLE OF AUTHORITIES Page(s) Cases A.J.R. v. Lute, 163 Ohio St. 3d 172, 2020-Ohio-5168 (2020)............................ 18 Abrams v. American Computer Technology, 168 Ohio App.3d 362, 2006-Ohio-4032, 860 N.E.2d 123 (1st Dist.).............. 17 Arnold v. City of Columbus, Case No. 2:08-cv-0031 (S.D. Ohio Apr. 4, 2011).......................... 6 Bank ofNew York Mellon v. Zayed, No. 108623, 2020-Ohio-4058 (8th Dist. Aug. 13, 2020)...................... 5 Barnett v. Dept, ofVeterans Affairs, 153 F.3d 338 (6th Cir. 1998).......................................6 Bell v. Beightler, 10th Dist. No. 02AP-569, 2003-Ohio-88.............................. 18 Birch v. Cuyahoga Cty. Prob. Court, 173 Ohio App. 3d 696, 2007-Ohio-6189 (8th Dist.)......................... 6 Blizzard v. Marion Tech. College, 698 F.3d 275 (6th Cir. 2012)...................................... 14 Booker v. Brown & McNairon Tobacco Co., 879 F.2d 1304 (6th Cir.1989)......................................14 Buckeye Union Ins. v. Consol. Stores Corp., 68 Ohio App. 3d 19 (10th Dist. 1990)................................. 5 Chandler v. Empire Chem., 99 Ohio App.3d 396 (1994).......................................16 Chisholm v. Cleveland Clinic Foundation, 141 N.E.3d 675 (8th Dist. 2019)................................... 5, 6 Coch v. Gem Indus., 6th Dist. Lucas No. L-04-1357, 2005-Ohio-3045.......................... 14 Comiskey v. Automotive Industry Action Group, 40 F.Supp.2d 877 (E.D. Mich. 1999)................................. 14 Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846/ .Confirmation Nbr. 2947162 / CLDLJ Contreras v. Ferro Corp., 73 Ohio St.3d 244, 652 N.E.2d 940 (1995)............................. 17 Cooper v. City ofN. Olmstead, 795 F.2d 1265 ............................................... 13 Davidson v. BP Am., Inc., 125 Ohio App.3d 643, 709 N.E.2d 510 (8th Dist.1997)...................... 16 Delgos v. MitekIndus., Inc., No. 00-CA-278, 2001-Ohio-3378 (7th Dist. Dec. 18, 2001).................... 5 DiCarlo v. Potter, 358 F.3d 408 (6th Cir. 2004).......................................6 Dresher v. Burt, 75 Ohio St. 3d 280 (Ohio 1996)................................... 4, 5 Evans v. Toys R Us Ohio, 32 F. Supp. 2d 974 (S. D. Ohio 1999)................................. 9 Giles v. Norman Noble, Inc., 88 Fed. App'x 890 (6th Cir. 2004)................................7, 8, 14 Greaney v. Ohio Turnpike Comm., 11th Dist. No.2005-P-0012, 2005-Ohio-5284........................... 18 Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442 (Ohio 2007)........................ 11 Hafford v. Seidner, 183 F.3d 505 (6th Cir. 1999)...................................... 13 Han v. Univ. ofDayton, 2015-Ohio-346, 28 N.E.3d 547 (2d Dist.).............................. 18 Hice v. David J. Joseph Co., 182 F.Supp.3d 775, affd, 678 Fed.Appx. 329 (S.D. Ohio 2016)................ 20 Hooks v. Ciccolini, 9th Dist. No. 20745, 2002-Ohio-2322................................ 18 Hopkins v. Canton City Bd. ofEduc., 477 Fed. App'x 349 (6th Cir. 2012).................................. 12 Hout v. City of Mansfield, 550 F. Supp. 2d 701 (N.D. Ohio April 23, 2008)......................... 7, 8 Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846V .Confirmation Nbr. 2947162 / CLDLJ Hughes v. Miller, 181 Ohio App. 3d 440, 2009-Ohio-963 (8th Dist.)......................... 11 Jackson v. Champion Natl. Bank & Trust Co., 10th Dist. Franklin No. 00AP-170 (Sept. 26, 2000)........................ 14 Johnson v. Kroger, 319 F.3d 858 (2003).......................................... 5, 6 Klepsky v. UPS, N.D.Ohio No. 1:04 CV 1683, 2005 WL 6938983, affd 489 F.3d 264 (6th Cir.2007) .................................................. 17 Kuivila v. City of Conneaut, 430 Fed. Appx. 402 (6th Cir. 2011).................................. 20 Lee v. Vill. of Cardington, 142 Ohio St.3d 488, 2014-Ohio-5458, 33 N.E.3d 12........................17 McDermott v. Continental Airlines, Inc., 339 Fed.Appx. 552 (6th Cir.2009)...................................20 McDonald v. Ford Motor Co., 208 F. Supp. 2d 837 (N.D. Ohio April 19, 2002).......................... 13 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).......................................... 6, 7 Meyers v. Goodrich Corp., No. 95996, 2011-Ohio-3261 (8th Dist. June 30, 2011).................... 11, 12 Momah v. Dominguez, 239 F. App'x 114 (6th Cir. 2007).................................... 6 Moshier v. Jeg's High Performance Centers, Inc., 650 N.E.2d 189 (10th Dist. 1994)................................... 19 Needham v. Provident Bank, 110 Ohio App. 3d 817 (8th Dist. 1996)................................ 5 Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181 (11th Cir. 1984)..................................... 9 Pelcha v. MW Bancorp, Inc., 455 F. Supp. 3d 481 (S.D. Ohio April 17, 2020).......................... 11 Pfleger v. BP Am., Inc., No. 68874, 1996 WL 355290 (8th Dist. June 27, 1996)....................... 5 Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846V. Confirmation Nbr. 2947162 / CLDLJ Pohmer v. JPMorgan Chase Bank, N.A., 10th Dist. No. 14AP-429, 2015-Ohio-1229............................. 18 Poluse v. City of Youngstown, 135 Ohio App.3d 720, 735 N.E.2d 505 (7th Dist.1999)...................... 17 Putney v. Contract Bldg. Components, No. 14-09-21, 2009-Ohio-6718 (3rd Dist. Dec. 21, 2009).................... 12 Ressler v. Attorney Gen. of the State of Ohio, No. 14AP-519, 2015-Ohio-777 (10th Dist. March 5, 2015)...................7, 9 Shaffer v. OhioHealth Corp. , 10th Dist. No. 04AP-236, 2004-Ohio-6523............................. 19 Smith v. Dep't ofPub. Safety, 2013-Ohio-4210 (10th Dist.) 9, 10, 11, 12 Smith v. Expressjet Airlines, Inc., No. 101336, 2015-Ohio-313 (8th Dist.)...............................6, 7 Tennial v. United Parcel Service, Inc., 840 F.3d 292 (6th Cir. 2016).................................... 6, 10 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)............................................ 6 Thompson v. Potter, No. C2-04-291, 2006 WL 783395 (S.D. Ohio March 27, 2006)................. 13 Univ, of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013)........................................... 12 Valentine v. Westshore Primary Care Assoc., No. 89999, 2008-Ohio-4450 (8th Dist. Sept. 4, 2008)................... 6, 14, 15 Vossman AirNet Systems, Inc., No. 12AP-971, 2013-Ohio-4675, 18 (10th Dist. Oct. 22, 2013).............................................. 6, 9 Weaver v. Ohio State Univ., 71 F.Supp.2d 789 (S.D. Ohio 1998)..................................15 Wholf v. Tremco, Inc., 2015-Ohio-171 (8th Dist.)....................................... 12 Wiles v. Medina Auto Parts, 96 Ohio St.3d 240 (2002)....................................... 20 Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 9718464 .Confirmation Nbr. 2947162 / CLDLJ Wood v. Dorcas, 142 Ohio App.3d 783 (6th Dist.2001) 16 Wright v. Petroleum Helicopter, 8th Dist. No. 71168, 1997 WL 578939 (Sept. 18, 1997) 16 Zeman v. Goodrich Corp., N.D.Ohio No. 1:04 CV 1310, 2005 WL 1668498 2005 U.S. Dist. LEXIS 37004 (N.D. Ohio) 17 Statutes ADA 13 Ohio Civil Rights Act, R.C. Chapter 4112 1 Ohio Whistleblower Protection Act, R.C. 4113.52 passim R.C. 4112.02 5, 11 R.C. 4113.52(A)(1)(a) 19 Other Authorities Rule 56 of the Ohio Rules of Civil Procedure passim Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 9718464iConfirmation Nbr. 2947162 / CLDLJ BRIEF IN SUPPORT I. INTRODUCTION Plaintiff Antoine McNair (African American) is a former O’Neill Healthcare nursing assistant. McNair claims that O’Neill Healthcare discriminated against her based on her race and sex in violation of the Ohio Civil Rights Act (“OCRA”), R.C. Chapter 4112. She further claims that O’Neill Healthcare retaliated against her for complaining about an assisted living resident in violation of the OCRA and the Ohio Whistleblower Protection Act, R.C. 4113.52. In reality, O’Neill Healthcare terminated McNair's employment after she threw a pitcher of cold juice on that same resident. The Ohio Department of Health (“ODH”) investigated the incident, determined McNair had abused the resident, and issued O’Neill Healthcare a citation. McNair's repugnant actions were also a flagrant disregard of the company’s personnel policies, its Code of Ethics, and her training. Not only are McNair's claims completely unsupported by the facts and the law, the record evidence (much of it McNair's own testimony) establishes that her claims have no basis in reason. The only facts McNair offered during her deposition to support her theory that O’Neill Healthcare discriminated against her because of race and sex were that the resident, who is not an O’Neill Healthcare employee, allegedly called her offensive names. McNair offered no other evidence tying her discharge to her race or sex, such as the company’s favorable treatment of male or non-African American employees. McNair concedes that her unsupported speculations are her sole evidence of discrimination. Similarly, McNair has nothing but her own speculation to support her belief that O’Neill Healthcare discharged her in retaliation for complaining about the resident. In fact, the O’Neill Healthcare management employee who decided to terminate McNair after ODH found she abused the resident was unaware that McNair had raised complaint against him. This lack of knowledge Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ about McNair's alleged protected activity dooms her retaliation claim. In sum, McNair fails to establish a prima facie case of discrimination or retaliation and fails to rebut O’Neill Healthcare's legitimate non-discriminatory and non-retaliatory reasons for her termination. O’Neill Healthcare is entitled to summary judgment on her claims. II. UNDISPUTED FACTS O’Neill Healthcare is a family-owned company that provides senior care, including assisted living and skilled nursing facilities. (Affidavit of David O’Neill, “O’Neill Aff.,” attached hereto as Exhibit A, at ^2.) O’Neill Healthcare hired McNair as a nursing assistant in the assisted living unit of its Lakewood, Ohio facility on February 11, 2022. (O’Neill Aff. at ^3.) McNair’s duties included assisting residents with bathing, grooming, dressing, eating, and drinking. (Id.) She was also responsible for monitoring patients’ physical and mental condition and transferring them between their beds, chairs, and wheelchairs.2 (Id.) McNair alleges that shortly after she began working at O’Neill Healthcare, in “February or March” 2022, she verbally complained to her supervisor, Assisted Living Director Tammy Seibert, about a resident “threatening” her. (Transcript of Plaintiff’s Deposition, “Pl. Dep.,” at 73:4-15; 75:19-77:10). The resident at issue (the “Male Resident”) is an elderly male who suffers from a cognitive disorder that causes him confusion and memory loss. (O’Neill Aff. at ^4.) It also occasionally changes in his mood, prompting him to make inappropriate remarks to staff and other residents. (Id.) Such disorders, including dementia, are common with residents of assisted living and skilled nursing facilities like O’Neill Healthcare. (Id. at ^5.) After all, many elderly persons permanently move into such facilities because they suffer from cognitive impairments that make 2Plaintiff lied to obtain her job with O’Neill Healthcare. On her application, she certified that she was a high school graduate and had never been convicted of a crime. The company subsequently learned that she had a previous assault conviction and did not, in fact, finish high school or obtain a GED. (Pl. Dep. at Ex. A, 44:17-45:2; 111:14-112:3). Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 2 then unable to care for themselves. (Id.) O’Neill Healthcare determined the Male Resident did not pose a physical threat to McNair’s safety. (Id. at ^6.) Although he occasionally made inappropriate remarks, the Male Resident never physically harmed an O’Neill Healthcare employee or resident. (Id.) He also spent virtually all of his time in either his bed or a motorized wheelchair. (Id.; Transcript of Samantha Willis’ Deposition, “Willis Dep.,” at 34:24-35:1.) In response to McNair’s complaints about the Male Resident, Tammy Seibert and a Nursing Coordinator, Tracy Carlisle, instructed him to refrain from making inappropriate remarks towards McNair. (Pl. Dep. 76:9-11.) They also directed both individuals to avoid further contact with one another. (Id.) Nonetheless, McNair became involved in another altercation with him in the facility dining room on May 22, 2022, which resulted in her throwing a pitcher of lemonade at him. (O’Neill Aff. at *7; Pl. Dep. 78:5-16.) McNair subsequently called the Lakewood Police Department and reported that the Male Resident threatened her. (Id.) Lakewood police officers visited O’Neill Healthcare’s facility and spoke to both McNair and Male Resident. (Pl. Ex. J, 104:12-106:15.) McNair reported “inappropriate comments” by the Male Resident and his “ongoing verbal issue” with staff. (Id.) The Male Resident responded by informing the police officers that McNair had thrown lemonade at him. (Id.) The officers instructed the Male Resident to “keep his distance” from McNair; however, they declined to investigate further. (Id.) Neither individual was charged with a crime. O’Neill Healthcare also conducted an investigation of the incident, led by the Lakewood Facility Administrator, Samantha Willis. (O’Neill Aff. at ^8; Willis Dep. 37:17-38:19.) Willis sent McNair home pending the investigation. (O’Neill Aff. at ^8; Willis Dep. 40:18-20.) She interviewed McNair, the Male Resident, and residents in the dining room who had witnessed the Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 3 incident. (Id.) Following the investigation, the company determined McNair behaved in an unprofessional and inappropriate manner. (O’Neill Aff. at *9.) It issued her a written warning and informed her that further similar incidents would result in her immediate termination. (Id.) When McNair returned to work, she was reassigned to work in the facility’s kitchen, without a reduction in pay, to separate her from the Male Resident. (Id.; Willis Dep. 45:17-19.) O’Neill Healthcare also reported the incident to the Ohio Department of Health (“ODH”), as required by law. (O’Neill Aff. at *10.) The Male Resident’s family also filed an abuse complaint with ODH, which ODH is responsible for licensing and certifying nursing homes and assisted living facilities in the State of Ohio. (Id.) It also conducts on-site inspections and surveys for compliance with state and federal rules and regulations and to ensure the quality of care and quality of life of the residents. (Id.) ODH conducted its own independent investigation and interviewed the same witnesses. (Id. at *11) Ultimately, despite McNair’s allegations that the Male Resident “threatened” her, ODH concluded that McNair had abused him when she threw the pitcher of lemonade at him. (Id.; Willis Dep. 45:24-46:5.) ODH therefore issued O’Neill Healthcare a citation for the incident. (O’Neill Aff. at *11.) Because ODH investigated and cited O’Neill Healthcare for resident abuse, O’Neill Healthcare’s Director of Operations, David O’Neill, decided to terminate McNair’s employment on June 3, 2022. (Id. at *12.) III. LAW AND ARGUMENT A. Summary Judgment Standard Summary judgment is appropriate under Ohio Civ. R. 56 when the evidentiary record “demonstrate^] the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims.” Dresher v. Burt, 75 Ohio St. 3d 280, 293 (Ohio 1996). When the moving party properly supports its motion with depositions, answers to interrogatories, or other Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 4 evidence of the type listed in Civ. R. 56(C), the adverse party “may not rest upon the mere allegations or denials of the party's pleadings,” but must point to “specific facts” in the evidentiary record that demonstrate a “genuine issue for trial.” Id. (citing Ohio Civ. R. 56(E)). “‘Mere speculation and unsupported conclusory assertions are not sufficient’ to meet the nonmovant's reciprocal burden under Civ. R. 56(E) to withstand summary judgment.” Bank ofNew York Mellon v. Zayed, No. 108623, 2020-Ohio-4058, 49 (8th Dist. Aug. 13, 2020) (citation omitted). If the non-moving party cannot establish through valid evidence an essential element of her claim, summary judgment must be granted in favor of the moving party. See Dresher, 75 Ohio St. 3d at 293; Delgos v. MitekIndus., Inc., No. 00-CA-278, 2001-Ohio-3378,^5-6 (7th Dist. Dec. 18, 2001). “The mere existence of some factual disputes, if not material, will not defeat a summary judgment otherwise proper.” Pfleger v. BP Am., Inc, No. 68874, 1996 WL 355290, at *2 (8th Dist. June 27, 1996) (citing Buckeye Union Ins. v. Consol. Stores Corp., 68 Ohio App. 3d 19 (10th Dist. 1990)). A “material fact” is one which would affect the outcome of the suit under the applicable substantive law. Needham v. Provident Bank, 110 Ohio App. 3d 817, 826 (8th Dist. 1996). B. McNair's Discrimination Claims Fail as a Matter of Law. 1. Legal Framework for Analyzing Race and Sex Discrimination Claims McNair’s Complaint alleges that O’Neill Healthcare discriminated against her because of her race and sex in violation of R.C. 4112.02. “To prevail on an employment-discrimination claim, the plaintiff must prove discriminatory intent through either direct or indirect methods of proof.” Chisholm v. Cleveland Clinic Foundation, 141 N.E.3d 675, 679 (8th Dist. 2019). Direct evidence is “evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.” Johnson v. Kroger, 319 F.3d 858, 865 (2003). Unlike circumstantial evidence, direct evidence “does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 5 part by prejudice against members of the protected group.” Id. Further, direct evidence of discrimination “must establish not only that the plaintiffs employer was predisposed to discriminate ... but also that the employer acted on that predisposition.” Momah v. Dominguez, 239 F. App'x 114, 121 (6th Cir. 2007) (citing DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004) (quotation omitted)). Absent direct evidence of discrimination, a plaintiff must proceed under the burden shifting approach set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Chisholm, 141 N.E.3d at 679. To establish a prima facie case of race discrimination under McDonnell Douglas, a plaintiff must show that she: (1) is a member of a protected class; (2) suffered an adverse employment action; (3) was qualified for the position lost; and (4) was treated less favorably than a similarly situated individual outside of her protected class. Birch v. Cuyahoga Cty. Prob. Court, 173 Ohio App. 3d 696, 704-05, 2007-Ohio-6189, 21 (8th Dist.) (citing Barnett v. Dept, of Veterans Affairs, 153 F.3d 338, 341 (6th Cir. 1998)); Arnold v. City of Columbus, Case No. 2:08-cv-0031 (S.D. Ohio Apr. 4, 2011); Valentine v. Westshore Primary Care Assoc., No. 89999, 2008-Ohio-4450, 63 (8th Dist. Sept. 4, 2008); Chisholm 141 N.E.3d at 679.; Smith v. Expressjet Airlines, Inc., No. 101336, 2015-Ohio-313, ^13 (8th Dist.); Tennial v. United Parcel Service, Inc, 840 F.3d 292, 303 (6th Cir. 2016). If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate, but not prove, a legitimate, non-discriminatory reason for the challenged decision. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Chisholm, 141 N.E.3d at 679. Once the employer articulates such a reason, the burden shifts back to the plaintiff to prove that the employer’s justification is merely a pretext for discrimination “and that the real reason was discriminatory in nature.” Id. (internal citation omitted); Vossman AirNet Systems, Inc., No. 12AP- Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 6 971, 2013-Ohio-4675, 18 (10th Dist. Oct. 22, 2013); Ressler v. Attorney Gen. of the State of Ohio, No. 14AP-519, 2015-Ohio-777 (10th Dist. March 5, 2015). Here, McNair lacks any direct evidence that O’Neill Healthcare took an adverse employment action against her because of her race or sex, and she cannot establish a prima facie case under McDonnell Douglas. 2. McNair Cannot Establish a Prima Facie Case of Race or Sex Discrimination Because She Has No Evidence That O’Neill Healthcare Treated Similarly Situated, Non-Protected Employees More Favorably. McNair cannot establish a prima facie case of race or sex discrimination because she has no evidence that O’Neill Healthcare treated similarly situated employees more favorably. This alone is fatal to McNair's case. Hout v. City ofMansfield, 550 F. Supp. 2d 701, 723-24 (N.D. Ohio April 23, 2008) (granting summary judgment where plaintiffs failed to make out prima facie case of discrimination by offering evidence of valid comparators); Giles v. Norman Noble, Inc., 88 Fed. App'x 890, 895 (6th Cir. 2004) (affirming summary judgment where plaintiff failed to show a genuine issue of material fact as to whether a person outside the protected class was treated more favorably than she was). “To be similarly situated, the parties to be compared must have 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.” Smith v. Expressjet Airlines, Inc., 2015-Ohio- 313, ^15 (internal citation omitted). McNair's claims fail at the outset because she cannot identify any other employees of O’Neill Healthcare who engaged in similar misconduct, but was not terminated. During her deposition, McNair was unable to identify a single comparator. Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 7 12 Q Do you know of any other O’Neill 13 Healthcare employees that threw food or 14 drink on a resident? 15 A No. 16 Q Do you know of any other O'Neill 17 Healthcare employees that were found to 18 have committed resident abuse? 19 A No. (Pl. Dep. 70:12-19.) Samantha Willis testified during her deposition that she was involved in other investigations of resident abuse by O’Neill Healthcare employees, but McNair was the only employee terminated. (Willis Dep. 33:11-17.) These other individuals are not proper comparators for two reasons. First, McNair has not demonstrated the alleged comparators were outside her protected class, dealt with the same supervisor, or were subject to the same standards. Second, the alleged comparators did not engage in the same misconduct. McNair was the only employee that ODH determined committed resident abuse and that caused ODH to issue a citation to O’Neill Healthcare. (Willis Dep. 482:49:1.) In other investigations, there was no finding of abuse by ODH and no citation of the company. Thus, an important distinction explains why O’Neill Healthcare treated McNair differently. McNair's failure to point to a single similarly-situated, male or non-African American comparator is fatal to her prima facie case, and her discrimination claims fail as a matter of law. See Hout v. City of Mansfield, 550 F. Supp. 2d 701, 723-24 (N.D. Ohio April 23, 2008) (granting summary judgment where plaintiffs failed to make out prima facie case of discrimination by offering evidence of valid comparators); Giles v. Norman Noble, Inc., 88 Fed. App'x 890, 895 (6th Cir. 2004) (affirming summary judgment where plaintiff failed to show a genuine issue of material fact as to whether a person outside the protected class was treated more favorably than she was). 3. McNair Cannot Establish Pretext. Even if McNair could establish a prima facie case of race or sex discrimination (she Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 8 cannot), her discrimination claims still fail because O’Neill Healthcare had legitimate, non- discriminatory reasons for discharging her, and she has no evidence that those reasons are a pretext for discrimination. To establish pretext, McNair must prove “both that the reason [for her termination] was false, and that discrimination was the real reason.” Vossman AirNet Systems, Inc., No. 12AP-971, 2013-Ohio-4675, 18 (10th Dist. Oct. 22, 2013); Ressler v. Attorney Gen. of the State of Ohio, No. 14AP-519, 2015-Ohio-777 (10th Dist. March 5, 2015). To satisfy her burden of proving pretext, McNair must show that O’Neill Healthcare’s proffered reasons for her termination: (1) had no basis in fact; (2) were not the real reasons; or (3) were insufficient to motivate or explain the decision. Smith v. Dep't ofPub. Safety, 2013-Ohio-4210,^ 77 (10th Dist.). An employer may make employment decisions “for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.” Evans v. Toys R Us Ohio, 32 F. Supp. 2d 974 (S. D. Ohio 1999) (quoting Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)). McNair has no such evidence of pretext. It is undisputed O’Neill Healthcare’s proffered reason for terminating her employment was factually true. McNair admitted during her deposition that ODH determined she committed resident abuse, and that O’Neill Healthcare terminated her for that reason: 17 Q The Ohio Department ofHealth reviewed 18 the incident? 19 MR. SHATTUCK: Objection. 20 Ifyou know you can answer. 21 A Yes. 22 Q And the OhioDepartment of Health 23 confirmed resident abuse, correct? 24 A Yes. 25 Q And that's why O'NeillHealthcare 1 terminated you, correct? 2 MR. SHATTUCK: Objection. 3 If you know. 4 A Yes. Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 9 (Pl. Dep. Ex. I, 66:8-67:4.) Further, McNair can present no triable dispute that her resident abuse was not the “real reason” for her discharge. During her deposition, McNair agreed that resident safety and well being are of the utmost importance to assisted living and nursing home facilities like O’Neill Healthcare. (Pl. Dep. 53:8-12.) She acknowledged that O’Neill Healthcare trained her to treat residents suffering from cognitive impairment like dementia like adults with respect and kindness, to avoid scolding, correcting, or arguing with residents. (Pl. Dep. Ex H, 62:11-63:24.) Nonetheless, McNair admitted during her deposition to throwing a pitcher of juice at the Male Resident and that her conduct: (1) violated O’Neill Healthcare’s policy requiring employees to treat residents with respect and decency (Pl. Dep. Ex. D, 53:13-54:23); (2) violated O’Neill Healthcare’s Code of Ethics prohibiting behavior causing mental or emotional distress to a resident (Pl. Dep. Ex E, 55:17-57:10.); (3) met the definition of “abuse” under O’Neill Healthcare’s policy and Ohio law (Pl. Dep. Ex F, 58:11-59:24.); and (4) violated her company training. (Pl. Dep. 63:25 64:8.) McNair was fully aware of the company’s policies and that mistreating a resident was grounds for immediate dismissal. (Pl. Dep. Exs. C, D, 50:7-51:6, 53:13-54:23.) Finally, McNair cannot prove pretext under the third method, by showing that O’Neill Healthcare's reasons for discharging her were insufficient. To meet this burden, McNair must show that similarly situated employees outside of her protected class were treated more favorably. Smith, 2013-Ohio-4210, ^86. However, as discussed above, McNair admits she cannot point to any comparator who was not terminated after being found by ODH to have committed resident abuse (See supra). Tennial v. United Parcel Svc., Inc., 840 F.3d 292, 303-305 (6th Cir. 2016) (affirming summary judgment where employee failed to present proper comparators to show that employer's proffered nondiscriminatory reason for adverse actions was pretext for race discrimination); Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 10 Pelcha v. MW Bancorp, Inc., 455 F. Supp. 3d 481, 506-507 (S.D. Ohio April 17, 2020). What’s more, McNair flatly admitted during her deposition that neither O’Neill Healthcare nor its employees treated her differently because of her gender: 6 Q Okay. Did O'Neill Healthcareor its 7 employees treatyou differently because 8 of your gender? 9 A No. (Pl. Dep. 71:6-9.) When asked to identify evidence that O’Neill Healthcare treated her differently because of her race, McNair’s only response was that Male Resident called her “half breed.” (Pl. Dep. 71:10-23.) However, she conceded that no O’Neill Healthcare employee called her such names or made negative comments of any kind about her race. (Pl. Dep. 69:18-70-4; 71:23-72:2.) In sum, McNair cannot present any evidence that her race or sex, instead of her resident abuse, played any role in her discharge from O’Neill Healthcare, let alone that the company is lying to cover up discrimination. Because McNair cannot establish the essential elements of her prima facie case or present any genuine issue of material fact as to pretext, her claim fails as a matter of law and should be dismissed. C. McNair's Retaliation Claim Fails as a Matter of Law. 1. Legal Framework for Analyzing Retaliation Claims McNair’s Complaint alleges that O’Neill Healthcare retaliated against her for engaging in protected activity in violation of R.C. 4112.02. To establish a prima facie retaliation claim, McNair must show that (1) she engaged in statutorily protected activity; (2) her employer knew of her protected activity; (3) she suffered an adverse employment action; and (4) a causal link existed between the protected activity and the adverse action. Smith, 2013-Ohio-4210, 48; Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442, at ^13 (Ohio 2007); Hughes v. Miller, 181 Ohio App. 3d 440, 448, 2009-Ohio-963, 29 (8th Dist.); Meyers v. Goodrich Corp., No. 95996, 2011- Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 11 Ohio-3261, 13 (8th Dist. June 30, 2011). If a plaintiff establishes a prima facie case of retaliation, the employer must articulate legitimate, non-retaliatory reasons for their adverse employment decisions. Smith, 2013-Ohio-4210, 49. The plaintiff then bears the ultimate burden of proving that those reasons are pretextual, and that retaliation was the “but for,” or determinative, cause of the adverse employment decisions. See Wholf v. Tremco, Inc., 2015-Ohio-171, 44 (8th Dist.); Smith, 2013-Ohio-4210, ^50. 2. McNair Cannot Establish a Prima Facie Case of Retaliation Because the Decision Maker - David O’Neill - Was Not Aware of Her Alleged Protected Activity. To demonstrate a causal connection between McNair's complaints and her subsequent discharge, McNair “must proffer evidence sufficient to raise the inference that [the] protected activity was the likely reason for the adverse action.” Putney v. Contract Bldg. Components, No. 14-09-21, 2009-Ohio-6718, 51 (3rd Dist. Dec. 21, 2009) (citation omitted). Moreover, following the U.S. Supreme Court's decision in Univ, of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013), McNair must prove that she would not have been discharged “but for” her complaints. Wholf, 2015-Ohio-171, 44; Smith, 2013-Ohio-4210, 60. In other words, McNair must show that her alleged protected activity was the “determinative factor” in O’Neill Healthcare's adverse employment decision. Id. ^59-61. McNair cannot meet her burden to establish a prima facie case of retaliation. McNair alleges O’Neill Healthcare terminated her employment in retaliation for complaining about discrimination by the Male Resident. (McNair Dep. 71:17-72:5.) To start, David O’Neill—the relevant decision maker—did not know about McNair's alleged protected activity and McNair cannot establish that O’Neill knew of her protected activity. (O’Neill Aff. at ^13.) This is an essential element of her prima facie claim. Meyers, 2011-Ohio-3261, 13. Hopkins v. Canton City Bd. of Educ., 477 Fed. App'x 349, 361-62 (6th Cir. 2012) (“Hiring Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 12 decisionmaker cannot ‘retaliate’ when unaware of the supposed triggering act.”); Thompson v. Potter, No. C2-04-291, 2006 WL 783395, *18 (S.D. Ohio March 27, 2006) (summary judgment appropriate where plaintiff failed to present any evidence that decision makers knew of EEO complaints or considered them when deciding to discharge.). McNair never complained to O’Neill about the Male Resident, and he never learned of her complaints until she brought this lawsuit. (O’Neill Aff. at ^14.) Tammy Seibert and Tracy Carlisle, who responded to McNair’s complaints, did not discuss those complaints with David O’Neill. (Id.) David O’Neill did not know McNair personally and was not involved in the investigation into her complaints about the Male Resident. (Id. at ^15) Thus, it is undisputed that David O’Neill did not know about McNair's alleged protected activity. McNair cannot establish an essential element of her prima facie case and her retaliation claim must fail. Setting aside that David O’Neill did not even know about McNair's alleged protected activity, McNair's retaliation claim also fails because she cannot otherwise demonstrate a causal connection between her complaints about the Male Resident and her subsequent discharge. First, McNair cannot show a temporal connection because there was a four-month lapse between her first complaint in February 2022 and her June 2022 discharge. Hafford v. Seidner, 183 F.3d 505, 515 (6th Cir. 1999) (temporal proximity of “two to five months” between protected conduct and adverse action insufficient); McDonald v. Ford Motor Co., 208 F. Supp. 2d 837, 846 (N.D. Ohio April 19, 2002) (lapse of five months or more between employee's filing of EEOC charge and discipline was too tenuous to show causal connection required to support retaliation claim under ADA or Ohio law); Cooper v. City of N. Olmstead, 795 F.2d 1265, 1273 (6th Cir. 1986 (four months between protected activity and allegedly retaliatory action insufficient to establish a prima facie case). Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 13 Finally, McNair cannot point to any similarly situated employees who did not make complaints of discrimination and who were not terminated for similar resident abuse. Her retaliation claim fails on this basis as well. Giles v. Norman Noble, Inc., 88 Fed. App'x 890, 895 (6th Cir. 2004) (affirming summary judgment where plaintiff failed to show a genuine issue of material fact as to whether a person outside the protected class was treated more favorably than she was). In short, there is not a scintilla of evidence to establish that McNair's protected activity was the “but for,” or determinative, cause of her discharge. Accordingly, O’Neill Healthcare is entitled to summary judgment on McNair's retaliation claim. 3. McNair Cannot Establish a Prima Facie Case of Retaliation Because There Is No Evidence That She Engaged in Protected Activity. McNair's purported complaints to Seibert and Carlisle included that the Male Resident called her “half-breed” and stated that McNair “like the women” (in reference to her sexuality). (Pl. Dep. at 71:21-72:4.) Even if McNair complained about these comments as she alleges, McNair's complaint was not protected activity. “In order to engage in a protected opposition activity...;: plaintiff must make an overt stand against suspected illegal discriminatory action.” Coch v. Gem Indus., 6th Dist. Lucas No. L-04-1357, 2005-Ohio-3045, 132, quoting Comiskey v. Automotive Industry Action Group, 40 F.Supp.2d 877, 898 (E.D. Mich. 1999); Valentine v. Westshore Primary Care Assoc, 8th Dist. Cuyahoga No. 89999, 2008-Ohio-4450, 1112-113, citing and quoting Coch; Jackson v. Champion Natl. Bank & Trust Co., 10th Dist. Franklin No. 00AP-170 (Sept. 26, 2000); Blizzard v. Marion Tech. College, 698 F.3d 275, 288 (6th Cir. 2012). “Vague charges of discrimination do not invoke the protection of the law.” Coch at 132, citing Booker v. Brown & McNairon Tobacco Co., 879 F.2d 1304 (6th Cir.1989); Valentine at 1113. “[C]omplaints concerning unfair treatment in general which do not specifically address discrimination are [likewise] insufficient to constitute protected activity.” Coch at 132, quoting Electronically Filed 08/25/2023 13:52 / MOTION / CV 22 971846 / Confirmation Nbr. 2947162 / CLDLJ 14 Weaver v. Ohio State Univ., 71 F.Supp.2d 789, 793-794 (S.D. Ohio 1998); Valentine at 1113. McNair purportedly complained to Seibert and Carlisle that the Male Resident made racist and sexist commen