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Nelson v. Marymount Hospital8/17/2000
ing to McDonnell Douglas, supra. Contrary to appellee's assertions, under the disparate treatment test set forth in Texas Dept. of Community Affairs v. Burdine, (1981), 450 U.S. 248, there is no requirement that the plaintiff demonstrate that a non- protected person was given the position after the plaintiff left the defendant's employ.
Once the plaintiff has set forth a prima facie case of discrimination, the burden shifts to the defendant to rebut the presumption of discrimination by producing evidence that its actions regarding the plaintiff were taken based on legitimate nondiscriminatory reasons. Burdine, supra. The ultimate burden of persuasion remains at all times with the plaintiff. Id.
In the case sub judice, because the appellant is an African- American, the first prong of the disparate treatment prima facie case is proven. McDonnell, supra. The second prong has been met because differences in title and access to training may be considered adverse employment actions. See generally, Sutherland v. Nationwide General Ins. Co. (1994), 96 Ohio App.3d 793.
Turning to the third prong, this court must examine whether or not the appellant was qualified for the position. Where a litigant is not qualified for the position, the prima facie case has not been met and summary judgment is appropriate. Neubauer v. A.M. McGregor Home Corp. (1994), Cuyahoga App. No. 65579, unreported, 1994 WL 197221. In Neubauer, this court held that in order to demonstrate qualification for a position, a litigant must not only demonstrate the capability of performing the work, but must also demonstrate that he or she is meeting the employer's legitimate expectations, i.e., that the litigant's performance is up to the standard the employer is entitled to expect from an employee at that experience and responsibility level. The Neubauer court cited to McDonald v. Union Camp Corp. (C.A. 6, 1990), 898 F.2d 1155, 1160 for the proposition that a material issue of fact is not raised by challenging the judgment of the litigant's supervisors. Where an employee is not doing what his employers want him to do, he is not doing his job. Id.
In the case sub judice, the appellant has set forth a host of facts (and innuendoes) to support her claim for racial discrimination. However, even though appellant has current credentials as a certified ART, this court must find that the appellant was not meeting her employer's legitimate expectations in the performance of her work as a coder. This is demonstrated by the abysmally poor performance reviews given during her probationary period. Although the appellant contends that her training period was abbreviated and that her performance criteria was more stringent, this does not save the appellant. The appellant was purportedly re-certified as an ART, an indication that she should have already been well acquainted with the tasks set before her without the substantial training given by her employer. The appellant was in a position to understand that the coding function serves the dual purposes of providing statistical information and for billing to the insurance companies for payment to the hospital. Given her years of experience, the appellant was in a position to understand that the responsibility for accuracy placed on a coder was critical to the future financial well being of the hospital.
Lastly, in Brewer, supra, this court held that the determination as to whether a stray comment is actionable race discrimination depends on the following factors: 1) was the comment made by a decision maker; 2) was it related to the decision-making process; 3) was the comment an isolated remark; and, 4) was the comment in proximity to the alleged discriminatory act. Aft
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