COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70813 MICHELE SHERIDAN : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION DRS. ALPERIN & RUCH, D.D.S., : INC., ET AL. : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 20, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-270250 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: LAURIE F. STARR Laurie F. Starr Co., L.P.A. 920 Terminal Tower Cleveland, Ohio 44113-2206 For Defendant-Appellee: MITCHELL L. ALPERIN Two Commerce Park Square, #360 23200 Chagrin Boulevard Beachwood, Ohio 44122 - 2 - O'DONNELL, J.: Michele Sheridan appeals from a judgment of the common pleas court directing a verdict in favor of Drs. Alperin and Ruch D.D.S., Inc., Dr. Scott Alperin, and Dr. Edward Ruch on her claim of sexual discrimination based upon pregnancy. On May 17, 1996, Sheridan applied for a position as an office manager with Drs. Alperin and Ruch, D.D.S, Inc.. On May 20, 1996, Andrea Howard, the then current office manager, interviewed her and on May 25, 1996, Sheridan spent a day observing in the office. On both dates, Howard stressed to Sheridan the importance of office confidentiality. On the evening of Friday, May 28, 1996, Howard extended an offer of employment to Sheridan on behalf of Drs. Alperin and Ruch. Sheridan indicated that she wanted the Memorial Day weekend to think about the offer but agreed that she would contact Howard the following Tuesday with her decision. She then informed Howard for the first time of her pregnancy and, after some discussion, they agreed that Sheridan could train another employee, Debi, to substitute for her as office manager while on maternity leave. When Sheridan phoned Howard on the following Tuesday, June 1, 1996, with the intention of accepting the offer, Howard informed her that the doctors had decided to withdraw the offer of employment because other employees in the office learned that - 3 - Sheridan had been offered the position, her salary, and the arrangement regarding her maternity leave. Thereafter, Sheridan filed this action against Drs. Alperin and Ruch, D.D.S., Inc., Dr Alperin, and Dr. Ruch, alleging she had been discriminated against because she was pregnant. A jury trial commenced on May 8, 1996. However, at the close of Sheridan's case in chief, the trial court granted appellees' motion for a directed verdict. Sheridan now appeals the trial court's granting of such motion and assigns the following error for our review: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANT'S MOTION FOR A DIRECTED VERDICT WHERE THE DEFENDANT FAILED TO ARTICULATE A LEGITI- MATE NON-DISCRIMINATORY REASON FOR FAILING TO HIRE THE PLAINTIFF. Sheridan contends that since she proved a prima facie case of sexual discrimination and the appellees failed to rebut it by offering a valid reason for not hiring her, the trial court erred in granting the motion for a directed verdict. The appellees maintain, however, the trial court properly granted the motion for a directed verdict because they did, in fact, articulate a non-discriminatory reason for not hiring her, i.e., she breached office confidentiality, and she failed to demonstrate this reason to be merely pretextual. - 4 - The issue for our determination then is whether the trial court erred in granting the motion for a directed verdict where Sheridan established a prima facie case of discrimination, and Drs. Alperin and Ruch offered a nondiscriminatory reason for not hiring her, which she failed to demonstrate as pretextual. Civil Rule 50(A) sets forth the grounds upon which a trial court may grant a motion for directed verdict. The rule provides at section (A)(4): When granted on the evidence. When a motion for a directed verdict has ben properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. "A directed verdict is appropriate only where the party opposing it has failed to adduce any evidence on the essential elements of his claim. (Citations omitted.)" Cooper v. Grace Baptist Church of Columbus (1992), 81 Ohio App.3d 728, 734. "In considering such a motion, the court must assume the truth of the evidence essential to the claim, allow all reasonable inferences from the evidence to support the claim, and determine whether there exists any evidence of substantial, probative value in support of the claim." Hargrove v. Tanner (1990), 66 Ohio App.3d 693, 695. R.C. 4112.02 governs employment discrimination in Ohio and provides in pertinent part: - 5 - It shall be an unlawful discriminatory practice: (A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. (Emphasis added.) R.C. 4112.01(B) states: For the purposes of divisions (A) to (F) of section 4112.02 of the Revised Code, the terms "because of sex" and "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy***. (Emphasis added.) In Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, the Ohio Supreme Court "***determined that federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112. (Citations omitted.)" Id. at 196. The starting point for judicial inquiry into a complaint alleging discrimination is McDonnell Douglas v. Green (1973), 411 U.S. 792. Plumbers & Steamfitters Joint Apprenticeship Commit, supra, at 197. "McDonnell established a flexible formula to ferret out impermissible discrimination in the hiring, firing, promoting, and demoting of employees." Id. "The first step in the McDonnell analysis is for a complainant***to prove a prima facie case of discrimination." Id. The basic elements of a discrimination case pursuant to - 6 - McDonnell are: (1) the complainant belongs to a protected class; (2) the complainant is qualified for the job; (3) the complainant is not hired; (4) the position remains open. McDonnell, supra, at 802. Once a prima facie case of discrimination has been established, a presumption of unlawful discrimination arises. St. Mary's Honor Ctr. v. Hicks (1993), 509 U.S. 502, 506, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407, 416. Then, the defendant must present a legitimate, nondiscriminatory reason for plaintiff's discharge. Thereafter, the plaintiff must show the employer's reason for the discharge is pretextual. Barker v. Scovill, Inc. (1983), 6 Ohio St.3d 146, 148. See Wagner v. Allied Steel & Tractor Co. (1995), 105 Ohio App.3d 611. "It is only the burden of production which shifts; the ultimate burden of persuasion remains on the party alleging discrimination at all times. (Citations omitted.)" Mercy Hosp. Assn. v. Ohio Civ. Rights Comm. (1989), 65 Ohio App.3d 613, 616. Initially, we examine whether Sheridan established a prima facie case of sex discrimination on the basis of pregnancy. Here, the record demonstrates that, at the time she applied for the position as office manager, Sheridan as a pregnant women, qualified as a member of a protected class pursuant to R.C. 4112.01 and R.C. 4112.02. Secondly, it is undisputed that Sheridan met the qualifications for the position offered. Both Dr. Alperin and Dr. Ruch testified that they considered Sheridan - 7 - the number one candidate for the office manager position. Thirdly, the doctors withdrew the offer of employment and did not hire Sheridan as office manager. Finally, the position remained open until the doctors hired another candidate. Under these facts, we conclude that Sheridan proved a prima facie case of sex discrimination on the basis of pregnancy. Next we must examine whether Drs. Alperin and Ruch presented a legitimate, nondiscriminatory reason for withdrawing their offer of employment to Sheridan. In this regard, the record reflects that both doctors testified to their belief that Sheridan breached office confidentiality in that other office employees learned of the offer of employment to her, the terms of that offer, and of plans to train and promote a co-employee, Debi, to substitute for her during her maternity leave. This testimony constitutes a legitimate non-discriminatory reason for withdrawing the offer of employment which shifted the burden of going forward with evidence to Sheridan to demonstrate that the doctors asserted this reason merely as a pretext to discrimination. Sheridan, however, failed to present any evidence of pretext on the part of the doctors, and instead rested her case. Pursuant to Mercy Hosp. Assn., supra, the burden of proof remained with Sheridan to prove her case of sexual discrimination. - 8 - We conclude, therefore, that although Sheridan established a prima facie case of sexual discrimination on the basis of pregnancy, she failed to rebut as pretextual, the nondiscriminatory reason advanced by the doctors for not hiring her. As a result, Sheridan failed to sustain her burden as a plaintiff in a suit for discrimination and therefore, the trial court did not err in directing a verdict in favor of Drs. Alperin and Ruch D.D.S., Inc., Dr. Scott Alperin, and Dr. Edward Ruch. Judgment affirmed. - 9 - It is ordered that appellee(s) recover of appellant(s) costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MATIA, P.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .