Myers v. Goodwill Industries of Akron, Inc.
1997 Ohio App. LEXIS 3475, 122 Ohio App. 3d 294, 701 N.E.2d 738 (1997)
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Rule of Law:
A party moving for summary judgment does not meet its initial burden by merely making a conclusory assertion that the nonmoving party has no evidence to support its claim; the movant must affirmatively point to specific evidence in the record that demonstrates the absence of a genuine issue of material fact.
Facts:
- Theresa M. Myers was hired by Goodwill Industries of Akron, Inc. ('Goodwill') on June 3, 1991, and was supervised by Terry McCarty.
- After about one year of employment, Myers was promoted to cashier coordinator.
- Myers alleged that throughout her employment, McCarty continually yelled at her, belittled her, and made conflicting and demeaning demands.
- On September 17, 1993, Goodwill laid off Myers as part of a general workforce reduction and eliminated her position.
- Goodwill redistributed Myers's duties to a male employee.
- In December 1993, Goodwill re-established Myers's former position under the new title 'head cashier.'
- Myers did not apply for the new position, and Goodwill hired a woman under the age of forty for the role.
Procedural Posture:
- Theresa M. Myers filed a complaint against Goodwill Industries in the Summit County Court of Common Pleas (trial court), alleging sex discrimination, age discrimination, and negligent retention.
- Myers later amended her complaint to add federal claims under Title VII and the Age Discrimination in Employment Act (ADEA).
- Goodwill moved for summary judgment on all claims.
- The trial court granted summary judgment in favor of Goodwill, finding that Myers failed to produce evidence that Goodwill's reasons for her discharge were pretextual and that this failure also defeated her negligent retention claim.
- Myers (as appellant) appealed the trial court's grant of summary judgment to the Court of Appeals of Ohio, Ninth Judicial District.
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Issue:
Does a defendant moving for summary judgment on a negligent retention claim satisfy its initial evidentiary burden by making a conclusory assertion that the plaintiff has no evidence that the employee had a past history of dangerous conduct?
Opinions:
Majority - Baird, Judge.
No. A defendant moving for summary judgment does not satisfy its initial burden by making a conclusory assertion that the plaintiff lacks evidence. Goodwill failed to meet its burden under Dresher v. Burt because it did not point to specific evidence in the record demonstrating Myers's lack of evidence for her negligent retention claim; it merely asserted she had no evidence. Therefore, summary judgment on that claim was improper. However, regarding the sex-plus-age discrimination claim, Goodwill did meet its initial burden by pointing to Myers's own deposition testimony, which failed to establish disparate treatment. Once the burden shifted, Myers failed to present specific facts showing a genuine issue for trial, as her allegations of harassment were nonspecific and did not show that similarly situated men or younger women were treated more favorably.
Dissenting in part and concurring in part - Slaby, Judge.
Yes. The dissent would affirm the summary judgment on the negligent retention claim. It is logically inconsistent to hold that Goodwill can be liable for negligently retaining a supervisor when the majority simultaneously holds that the employee failed to produce sufficient evidence of harm from that supervisor's conduct to support a discrimination claim. If the supervisor's actions did not constitute legally cognizable harm for the discrimination claim, the dissent questions how the employee can prove damages for the negligent retention claim based on the same conduct.
Analysis:
This case reinforces the stringent initial burden placed on a party moving for summary judgment under Ohio law, as articulated in Dresher v. Burt. The decision clarifies that a moving party cannot simply state the opponent 'has no evidence' but must affirmatively demonstrate this from the record. The split decision highlights the conceptual separation between a procedural failure on a summary judgment motion (on the negligent retention claim) and a substantive failure of proof (on the discrimination claim). The dissent raises a critical question for future litigation about whether a negligent retention claim can survive if the underlying conduct is found insufficient to support a related discrimination claim, probing the nature of the 'harm' element in both torts.
