Huffman v. Sunbelt Rentals, Inc.

         [Cite as Huffman v. Sunbelt Rentals, Inc., 2020-Ohio-5070.]




                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO

JOHN HUFFMAN,                                     :                APPEAL NO. C-190642
                                                                   TRIAL NO. A-1804321
        Plaintiff-Appellant,                      :

  vs.                                             :                     O P I N I O N.

SUNBELT RENTALS, INC.,                            :

     Defendant-Appellee.                          :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 28, 2020


Robert A. Klingler Co., L.P.A., and Robert A. Klingler, for Plaintiff-Appellant,

Smith, Gambrell & Russell, LLP, Yash B. Dave and Patricia J. Hill, for Defendant-
Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS


MOCK, Presiding Judge.


       {¶1}    Plaintiff-appellant John Huffman sued his employer, defendant-

appellee   Sunbelt   Rentals,   Inc.,   (“Sunbelt”)   for   retaliatory   discharge   and

discrimination on the basis of race and age. After Huffman abandoned his claim for

age discrimination, the trial court granted summary judgment in favor of Sunbelt on

Huffman’s remaining claims. Huffman now appeals, asserting two assignments of

error. Because we hold that Huffman has failed to demonstrate a prima facie case of

race discrimination and retaliation, we affirm the trial court’s judgment.

                                         Background

       {¶2}    Sunbelt is in the business of selling, renting and servicing

manufacturing, construction and industrial equipment through locations called

“profit centers.” Huffman, an African-American male, was hired by Sunbelt in 2006

as a parts manager at Profit Center 213 (“PC 213”). Shortly thereafter, he was

promoted to service manager.       As service manager, Huffman was placed on a

performance improvement plan (“PIP”) three separate times. The first time was in

2010, when he received a written warning and PIP for “[f]ailure to comply with

general policies and procedures” and “discourteous, rude or unprofessional behavior

or failure to interact courteously and tactfully.” A year later he was placed on

another PIP, which had goals to help Huffman improve his skills in the areas of

organization, leadership, customer service and safety.          Finally, Sunbelt placed

Huffman on his third PIP in December of 2017, which ultimately led to his

termination.

       {¶3}    As a service manager, Huffman’s responsibilities included managing

parts and inventory needed for repair and maintenance of the rental equipment and

supervising the mechanics and yard personnel. The shop foreman, Chuck Brady, a

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                    OHIO FIRST DISTRICT COURT OF APPEALS



white male, began reporting to Huffman in 2015, after Huffman had returned from

medical leave.   Brady’s duties included assisting Huffman in preparing work

schedules, handling service calls to meet customer needs and assuring that

equipment was available as required. The following year, Scott Rudolph, a white

male, was promoted to manager of PC 213, and Huffman reported directly to him. In

March 2017, Huffman reported to Sunbelt’s human resources department that Brady

and Rudolph were creating a hostile work environment by “disrespecting” him.

First, he reported that Rudolph did not include him in the interview process when

hiring a new mechanic. Rudolph testified in his deposition that he does not know

why Huffman was not included in the interview but indicated after that time

Huffman was included when interviewing new mechanics. Next, he reported that

Brady had said things about him, such as “you’re worthless, and good for nothing,”

and that Brady would not complete tasks that Huffman had assigned. For example,

Huffman stated that Brady had not organized the ordered parts for the rental

equipment as requested by Huffman. Huffman testified that the ordered parts were

disorganized because Brady had mistakenly ordered unnecessary items for the rental

equipment and instead of returning those items, he had left them on the shelves in

the parts warehouse, creating an unorganized mess. Huffman testified that when he

had reported this to Rudolph, Rudolph’s response had been to move Brady to the

rental department and out of the office he shared with Huffman. Brady testified that

he had requested that his office be moved because he felt a lot of “tension” from

Huffman because of the parts that had been mistakenly ordered and over Brady’s

lack of computer skills.   After Brady moved to the rental department, he was

assigned different job duties and no longer assisted with ordering parts for the

equipment.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}   Ann Marie Rice, a human resources manager at Sunbelt, testified that

she and her coworker contacted every employee at PC 213 in response to Huffman’s

complaint. During this investigation, it became apparent to Rice that several people

were responsible for issues of professionalism and communication at PC 213. As a

result, Sunbelt issued “memos” to Huffman, Brady, and another employee, and one

to the entire profit center, which required all employees to retake their “ethics

training.” The memo sent to Huffman reminded him to be more professional with

coworkers, to wear the proper personal protective equipment and, as a leader at PC

213, to refrain from gossiping.

       {¶5}   In May 2017, Rudolph reported to Rice that he was having

performance problems with Huffman. Rudolph reported that he had asked Huffman

to order a part for equipment that was scheduled to be rented but Huffman refused,

indicating he was too busy. Rudolph told him to stay late if necessary but Huffman

refused. Later, Rudolph reported that another employee claimed Huffman said,

“[T]ell [Brady] to suck my dick.” Huffman denied saying this, and since Rice found

the witness was not credible, Rice closed out the investigation.

       {¶6}   On December 4, 2017, Rice checked in with Huffman to see how he

was doing. During this conversation, for the first time, Huffman reported racial

tension at PC 213, and his belief that he was being discriminated against because of

his race. To support his belief, Huffman reiterated that Brady would not complete

work that Huffman assigned him and that he had overheard Brady use “the N-word”

but that it was not in reference to Huffman and that Brady had apologized to

Huffman. Brady denied this occurred. Huffman also reported that Rudolph had

disciplined him (several months before) for texting that he was going to be absent

from work, instead of following Sunbelt’s policy of telephoning the profit center.

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                    OHIO FIRST DISTRICT COURT OF APPEALS



Following this incident, Huffman reported that another employee, a white male, had

also texted Rudolph that he was going to be absent from work and that this employee

had not been disciplined. However, Huffman admitted in his deposition that he did

not know whether this employee had been disciplined for violating Sunbelt’s policy.

       {¶7}   Huffman also reported that Rudolph treated other African-American

employees poorly. Huffman reported that a former 60-year-old African-American

employee was mistreated when Rudolph changed his duties to include assisting

loading and unloading equipment. But Huffman admitted that he was aware that an

employee’s job duties can be changed. Next, Huffman reported that an African-

American driver was treated unfairly because that employee had applied for the

dispatcher position, which was not open, and did not receive the position. Huffman

believed that the former employee should have received the job because he was

senior and the current dispatcher was not knowledgeable.

       {¶8}   Rice investigated Huffman’s claims of discrimination against him by

talking to other employees at PC 213. During this investigation, Rudolph reported

that he and Huffman had not been communicating regularly since Huffman had

refused to stay late to complete ordering a needed part for the rental equipment.

Another employee, Clarence Parsons, reported that Huffman treated Brady unfairly

and had allegedly thrown a work order in Brady’s face.        Huffman denied this

happened. Rice then met with Brady. She testified that Brady became emotional

and tearful during the interview and reported that he wanted to step down as shop

foreman because it was too stressful and tense working with Huffman.

       {¶9}   Rice testified that she could not investigate Huffman’s claims with

respect to the two former African-American employees because they had resigned.

She believed there was significant interpersonal and communication issues that

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                     OHIO FIRST DISTRICT COURT OF APPEALS



needed to be corrected in order for PC 213 to operate effectively. She testified that

she spoke with Huffman, and he wanted to improve communication at PC 213 and

his relationships with Rudolph and Brady.

       {¶10} In response, Sunbelt placed Huffman on a PIP on December 6, 2017,

and a few days later Sunbelt placed Rudolph, Huffman’s supervisor, on a PIP. Under

Huffman’s PIP, Huffman was to clean and organize the parts warehouse within 30

days, communicate daily with the shop foreman and profit center manager about

concerns he had, be more visible in the shop and yard, focus on processing warranty

claims and updating the computer system daily, and spot check equipment to help

decrease or eliminate the number of first-day breakdowns. Huffman agreed that all

of these duties were part of his job as a service manager.

       {¶11} Under the PIP, Huffman was to be evaluated at 30, 60 and 90 days,

but Rice testified that she had informed Huffman from the beginning that there

would also be weekly meetings to discuss his progress. Rice testified that because of

Huffman’s report of discrimination, she wanted to ensure that Huffman was

evaluated fairly so she, via telephone, and Todd Sprinkle, the assistant manager at

PC 213, whom Huffman felt comfortable with, were present at the weekly meetings.

Rudolph and Ryan Balcom, Sunbelt’s district manager for the greater-Cincinnati

area, were also present at the meetings. Balcom had previously been the manager of

PC 213 and had worked with Huffman.

       {¶12} At the first evaluation meeting, Huffman was informed that he needed

to be more visible in the shop and yard. Although Huffman had said he had walked

the shop, Rudolph reported that he had not seen Huffman do so. Huffman then

informed Sunbelt that he needed assistance with completing his job duties in order

to be visible in the shop. Huffman requested Brady’s assistance, but Rudolph said

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                     OHIO FIRST DISTRICT COURT OF APPEALS



that Brady was unavailable to help as he was focusing on other duties. Rudolph

offered to assign a customer service representative (“CSR”) to assist if Huffman

would submit a plan describing the specific ways the CSR would help him complete

his work. Huffman never submitted or presented this plan to Rudolph or Rice.

       {¶13} At the first evaluation meeting in January 2018, Rudolph stated that

Huffman had not involved him in the morning meetings/huddles or walking the

shop and yard. At the next meeting, Huffman again requested help with completing

his duties, but Rudolph stated that Sunbelt still needed a plan from Huffman as to

how he would use a CSR to assist him. At this time, Balcom expressed concern that

Huffman was not doing what they had asked. Balcom said that Huffman needed “to

be running warranty reports, claim reports, the shop, communicating to the team.”

Huffman was instructed to find a balance between being more visible in the shop and

yard and organizing the parts warehouse. Rice testified that she spoke with Huffman

separately after the meeting to impress upon him that he needed to start meeting the

goals in his PIP; otherwise, he could be disciplined or fired. Huffman reported that

he had been walking the floor more and that Rudolph had simply not noticed.

       {¶14} At the following weekly meeting, Rudolph reported that Huffman had

finally started to discuss the status of the shop with him, but Huffman’s visibility in

the shop and involvement in huddles was still not occurring and the parts warehouse

was still unorganized. Therefore, Huffman was given a written warning. Rice again

noted that Huffman still had not presented a plan to Rudolph as to how Huffman

would utilize an extra employee.

       {¶15} A week later, Huffman had made no further progress on the stated

goals in the PIP, and his employment was terminated as of February 9, 2018. After

Huffman’s termination, Brady testified in his deposition, the service-manager job

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                     OHIO FIRST DISTRICT COURT OF APPEALS



duties were split between himself and Sprinkle, the assistant manager. Thirteen

months later, the new profit center manager (Rudolph had left Sunbelt to pursue

other opportunities) hired a white male for the position of service manager.

                                    Summary Judgment

       {¶16} In his two assignments of error, Huffman contends that the trial court

erred in entering summary judgment in favor of Sunbelt on his claims for race

discrimination and retaliatory discharge.

       {¶17} We review a grant of summary judgment de novo, and will uphold it

when (1) no genuine issue of material fact remains to be litigated; (2) the moving

party is entitled to judgment as a matter of law; and (3) it appears from the evidence

that reasonable minds can come to but one conclusion, and viewing such evidence

most strongly in favor of the party against whom the motion was made, that

conclusion is adverse to that party. Pelletier v. Campbell, 

153 Ohio St. 3d 611

, 2018-

Ohio-2121, 

109 N.E.3d 1210

, ¶ 13.

                                            Race

       {¶18} The Supreme Court of Ohio has explained that discrimination actions

under federal and state law require the same analysis. Plumbers & Steamfitters

Joint Apprenticeship Commt. v. Ohio Civil Rights Comm., 

66 Ohio St. 2d 192

, 196,

421 N.E.2d 128

(1981). Therefore, Ohio courts may look to both state and federal law

when determining the rights of litigants under state discrimination laws.

       {¶19} Under McDonnell Douglas Corp. v. Green, 

411 U.S. 792

, 802-803, 

93 S. Ct. 1817

, 

36 L. Ed. 2d 668

(1973), when a court is presented with a claim for

disparate treatment, it must undertake a three-part analysis. First, the plaintiff must

establish a prima facie case of racial discrimination by a preponderance of the

evidence. Second, if a prima facie case is established, the burden of production shifts

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                       OHIO FIRST DISTRICT COURT OF APPEALS



to the employer to articulate some legitimate, nondiscriminatory reason for its

actions.     If the employer articulates a nondiscriminatory reason for its adverse

employment action, the burden shifts back to the plaintiff to prove the employer’s

stated reason was in fact pretext, masking unlawful discrimination.

          {¶20} To demonstrate a prima facie case of racial discrimination, Huffman

had to demonstrate that he (1) is a member of a protected class, (2) suffered an

adverse employment action, (3) was qualified for the position either lost or not

gained, and (4) that the position was filled by a person not of the protected class.

Swann v. Cardiology Assocs. of Cincinnati, 1st Dist. Hamilton No. C-050650, 2006-

Ohio-2758, ¶ 26. Establishing a prima facie case “ ‘creates a presumption that the

employer unlawfully discriminated against the employee.’ ” Williams v. Akron, 

107 Ohio St. 3d 203

, 2005-Ohio-6268, 

837 N.E.2d 1169

, ¶ 11, quoting Texas Dept. of

Community Affairs v. Burdine, 

450 U.S. 248

, 254, 

101 S. Ct. 1089

, 

67 L. Ed. 2d 207

(1981).

          {¶21} There is no dispute that Huffman satisfied the first two prongs of the

prima facie case as he is an African-American, and his employment with Sunbelt was

terminated. With respect to the third requirement regarding qualification, the trial

court determined that Huffman was not qualified for the position of service manager

because he failed to organize the parts warehouse, one of the goals of his PIP. But

failure to show progress under the PIP was Sunbelt’s stated reason for terminating

Huffman’s employment.         “[A] court may not consider the employer’s alleged

nondiscriminatory reason for taking an adverse employment action when analyzing

the prima facie case. To do so would bypass the burden-shifting analysis and deprive

the plaintiff of the opportunity to show that the nondiscriminatory reason was in

actuality a pretext designed to mask discrimination.”        Wexler v. White’s Fine

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                     OHIO FIRST DISTRICT COURT OF APPEALS



Furniture, Inc., 

317 F.3d 564

, 574-575 (6th Cir.2003), citing Cline v. Catholic

Diocese of Toledo, 

206 F.3d 651

, 660-661 (6th Cir.2000) (“[W]hen assessing

whether a plaintiff has met her employer’s legitimate expectations at the prima facie

stage of a termination case, a court must examine plaintiff’s evidence independent of

the nondiscriminatory reason ‘produced’ by the defense as its reason for terminating

plaintiff.”); Smith v. Children’s Aid Soc., 8th Dist. Cuyahoga No. 86644, 2006-Ohio-

4754 (court could not consider plaintiff’s poor job performance as evidence that she

was unqualified for former position when employer’s reason for discharge was her

poor job performance).

       {¶22} Because a court may not consider the nondiscriminatory reason for the

discharge at the prima-facie stage, then a court must analyze whether an employee

was qualified for his former position by considering “the plaintiff’s education,

experience in the relevant industry, and demonstrated possession of the required

general skills.” Wexler at 576. Huffman presented evidence that Sunbelt hired him

in 2006 and shortly thereafter promoted him to service manager, a position he has

held for over 11 years. Given the length of time that Huffman had previously served

as a service manager and his familiarity with this industry, we hold that he was, prior

to Sunbelt’s assertion of his poor job performance, qualified for the position of

service manager.

       {¶23} Turning now to the final prong of the prima-facie case, regarding

whether Huffman was replaced by a person from the nonprotected class, we note

that Huffman argued below that he met this prong because it is undisputed that 13

months after Huffman was terminated, Sunbelt hired a white male for the position of

service manager.     But Sunbelt contends that Huffman cannot be considered

replaced, when the position of service manager was not filled until over a year after

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                     OHIO FIRST DISTRICT COURT OF APPEALS



Huffman was discharged and when, during that time period, Huffman’s former

duties were spread out among the remaining employees. We agree.

       {¶24} A former employee is not replaced when another employee is assigned

to perform the former employee’s job duties in addition to other duties; a plaintiff-

employee is only replaced when another employee is hired or reassigned to solely

perform the plaintiff’s duties. (Citations omitted.) Valentine v. Westshore Primary

Care Assoc., 8th Dist. Cuyahoga No. 89999, 2008-Ohio-4450, ¶ 86. In Valentine,

the plaintiff’s duties were redistributed among remaining employees, in addition to

their other duties, and the employer eventually hired an employee to perform the

plaintiff’s former job duties, but not until a year after the plaintiff had been fired.

The Eighth Appellate District held that someone hired more than a year after the

plaintiff was terminated does not create an inference, as a matter of law, that the new

employee “replaced” the plaintiff.

Id. at ¶ 87;

See Howell v. Whitehurst Co., 6th Dist.

Lucas No. L-05-1154, 2005-Ohio-6136, ¶ 17 (fourth prong of a prima-facie case is

established only if the plaintiff can show “upon her discharge” or near the time of

termination, that plaintiff was replaced by someone outside the protected class).

       {¶25} Here, the record demonstrates that upon Huffman’s discharge his job

duties were assigned to Brady and Sprinkle, in addition to their other

responsibilities, and that Sunbelt did not hire an employee as service manager until

over a year after Huffman’s termination. Based on these circumstances, we hold that

Huffman has not demonstrated an inference that he was replaced upon his

termination, and thus, has not demonstrated a prima-facie case of racial

discrimination.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



                                 Retaliatory Discharge

       {¶26} To prove a claim of retaliation, Huffman must establish three

elements: (1) that he engaged in protected activity, (2) that he was subjected to an

adverse employment action, and (3) that a causal link exists between a protected

activity and the adverse action. Mendlovic v. Life Line Screening of Am., Ltd., 

173 Ohio App. 3d 46

, 2007-Ohio-4674, 

877 N.E.3d 377

, ¶ 38 (8th Dist.).

       {¶27} This court has stated that a causal relationship between the protected

activity and the adverse employment action can be demonstrated through “evidence

of the employer’s knowledge of the protected activity, together with temporal

proximity.” Widmyer v. Steak N Shake Operations, Inc., 1st Dist. Hamilton No. C-

140231, 2014-Ohio-5413, ¶ 23; Clark Cty. School Dist. v. Breeden, 

532 U.S. 268

, 

121 S. Ct. 1508

, 

149 L. Ed. 2d 509

(2001) (noting that some cases have “accept[ed] mere

temporal proximity between an employer’s knowledge of protected activity and an

adverse employment action as sufficient evidence of causality” but that they have

only done so when the temporal proximity is “very close”); Payton v. Receivables

Outsourcing, Inc., 

163 Ohio App. 3d 722

, 2005-Ohio-4978, 

840 N.E.2d 236

, ¶ 29

(8th Dist.) (two-day interval); Thatcher v. Goodwill Industries of Akron, 117 Ohio

App.3d 525, 

690 N.E.2d 1320

(9th Dist.1997) (three-week interval).

       {¶28} On the other hand, where some time elapses between the employer’s

discovery of the protected activity and the adverse employment action, the employee

must produce other evidence of retaliatory conduct to establish causality. Hall v.

Banc One Mgt. Corp., 10th Dist. Franklin No. 04AP-905, 2006-Ohio-913, ¶ 47 (an

“interval of two months between complaint and adverse action ‘so dilutes any

inference to causation that we are constrained to hold as a matter of law that the

temporal connection could not justify a finding in employee’s favor on the matter of a

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                     OHIO FIRST DISTRICT COURT OF APPEALS



causal link’ ”); Ningard v. Shin-Etsu Silicones, 9th Dist. Summit No. 24524, 2009-

Ohio-3171, ¶ 17 (no causal link where events separated by more than a few days or

weeks); Boggs v. Scotts Co., 10th Dist. Franklin No. 04AP-425, 2005-Ohio-1264, ¶

26 (additional evidence required after two-month interval).

       {¶29} The record demonstrates that Huffman engaged in protected activity

when he reported racial tension to Sunbelt on December 4, 2017, and that Huffman

suffered an adverse employment action when he was fired on February 9, 2019.

Thus, there was more than a two-month interval between Huffman’s protected

activity of reporting racial tension and his termination. Huffman needed to present

other evidence to support an inference that his report of racial tension is what caused

his termination, and he has not done so. Because of the lack of temporal proximity

between the protected activity and Huffman’s termination, we are constrained to

hold that Huffman has not met his burden of production with respect to the third

prong of a prima-facie case for retaliatory discharge.

       {¶30} Because Huffman cannot demonstrate a prima-facie case for his claims

of racial discrimination and retaliatory discharge, we overrule both of his

assignments of error, and affirm the trial court’s judgment.

                                                                  Judgment affirmed.

ZAYAS and WINKLER, JJ., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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