HAMILTON, Appellant, v. SYSCO FOOD SERVICES OF CLEVELAND, INC., Appellee, 170 Ohio App. 3d 203

Anthony O. Calabrese Jr., Judge. {¶ 1} Plaintiff-appellant, Deidre Hamilton, appeals the decision of the trial court. Having reviewed the arguments of the parties and the pertinent law, we hereby affirm the lower court. I {¶ 2} According to the facts, appellee, SYSCO Food Services of Cleveland, Inc. (“SYSCO”), is in the business of providing products and services to food-service operators in the food-service marketing and distribution industry. Appellant was first employed by SYSCO on January 29, 1996, as a transportation clerk.

On or about September 2, 1996, appellant became a part-time transportation clerk and was subsequently switched back to a full-time transportation clerk on or about June 16, 1997. On or about October 18, 1999, she accepted an administrative-assistant transportation position, and on July 3, 2000, appellant accepted the position of city desk supervisor. Thereafter, in 2002, she accepted the position of transportation supervisor and occupied that position until her layoff on October 29, 2004. {¶ 3} In May 2004, the Cooker restaurant chain shut down all of its restaurants in northeastern Ohio.

Consequently, SYSCO lost all of its business with that restaurant chain. In addition, during that same time period in 2004, SYSCO was being pressured by its parent company, SYSCO Corporation, to reduce the number of employees in its operations department, to bring that number within the company benchmarks. This had a dramatic impact on the number of truck drivers available to drive delivery routes. In February 2004, the operations department employed approximately 160 drivers to make its scheduled delivery routes.

By the end of October 2004, the number of truck drivers available to make delivery routes had been reduced to approximately 115 drivers. {¶ 4} As a result of this reduction in business, John Brian Cook, SYSCO’s vice president of operations, implemented a reduction in force that included three series of layoffs in 2004 within the operations department. In carrying out the reduction in force, three supervisory employees, in addition to appellant, were laid off in the operations department in 2004. They included William O’Donnell, William Dickerson, and Rick Leonard.

One additional employee, Christopher Rivera, resigned during 2004. As a result, a total of five supervisory employees were eliminated from the operations department in 2004. {¶ 5} Customer-service problems began to increase during the year, and in October 2004, Cook analyzed the transportation-supervisor position and determined that all persons holding that position must possess a commercial driver’s license (“CDL”).

He believed that requiring every transportation supervisor to have a CDL would allow each transportation supervisor, if necessary, to drive a delivery route and thereby improve customer service by lessening or ehminating late deliveries. {¶ 6} Nicholas Council and David Sekala both possessed a CDL and retained their transportation-supervisor positions. David Sullivan did not possess a CDL and was transferred to a warehouse supervisory position.

SYSCO states that Sullivan was transferred, while appellant was not, because Sullivan had extensive experience in the warehouse side of the business, while appellant had no experience in the warehouse side or with the various computer systems used in the warehouse. {¶ 7} According to the record, appellant filed a complaint against SYSCO arising out of her layoff from her employment. In her original complaint, appellant asserted race- and gender-discrimination claims relating to her layoff and to the alleged deprivation of certain “training opportunities” during her employment relationship with SYSCO.

On April 18, 2005, the trial court permitted appellant to file an amended complaint in which she asserted an additional wrongful-discharge claim. Appellant then filed a second amended complaint. {¶ 8} On June 9, 2005, SYSCO answered appellant’s second amended complaint, denying that it had discriminated against appellant, and further reiterating that appellant was laid off as part of a reduction in force and reorganization of the operations department because she did not possess a CDL. {¶ 9} On August 29, 2005, SYSCO filed its motion for

summary judgment, seeking the dismissal of appellant’s second amended complaint. On October 3, 2005, during the pendency of the motion for

summary judgment, appellant dismissed all of her race-discrimination claims alleged against SYSCO. She then filed two memoranda in opposition to the motion for

summary judgment. The trial court granted the motion and dismissed appellant’s second amended complaint on December 29, 2005. Appellant timely appealed the trial court’s judgment entry granting

summary judgment in favor of SYSCO. II {¶ 10} Appellant’s first assignment of error states the following: “The trial court erred in granting

summary judgment on plaintiffs discrimination claims because there were genuine fact issues as to whether gender was a factor in plaintiff being treated worse than similarly-situated male coworkers, laid off and subsequently fired.” {¶ 11} Appellant’s second assignment of error states the following: “The trial court erred in granting

summary judgment on plaintiffs negligent misrepresentation claim because there were genuine fact issues as to whether plaintiff detrimentally relied on defendant-management’s misrepresentations that it was not necessary for her to independently obtain CDL training.” III {¶ 12} Appellant argues in her first assignment of error that the lower court erred in granting

summary judgment on her discrimination claims because there were genuine fact issues as to whether gender was a factor in her being treated worse than similarly situated male coworkers and in her being laid off and subsequently fired. {¶ 13} Civ.R. 56 provides that

summary judgment may be granted only after the trial court determines that (1) no genuine issues as to any material fact remain 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 the evidence most strongly in favor of the party against whom the motion for

summary judgment is made, that conclusion is adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 24 O.O.3d 1, 433 N.E.2d 615; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267. {¶ 14} It is well established that the party seeking

summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 604 N.E.2d 138. {¶ 15} We find that

summary judgment was properly granted in SYSCO’s favor. There was nothing in the pleadings that disputes appellee’s argument. Appellant at all times bears the burden of proving that she was discriminated against on account of her gender. St. Mary’s Honor Ctr. v. Hicks (1993), 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407. SYSCO did not discriminate against appellant when it laid her off and subsequently terminated her because she did not possess a CDL. Moreover, appellant was laid off because of a valid reduction in force.

An employee’s burden in demonstrating discrimination is heavier when a reduction in force is required by economic necessity. Carpenter v. Wellman Prods. Group, Medina App. No. 03CA0032-M, 2003-Ohio-7169, 2003 WL 23094777. SYSCO did not discriminatorily deny appellant any training opportunities.

Appellant failed to prove that similarly situated employees were treated better than her. {¶ 16} We find nothing in the record demonstrating that the lower court’s actions were improper. {¶ 17} Accordingly, appellant’s first assignment of error is overruled. {¶ 18} Appellant argues in her second assignment of error that the lower court erred in granting

summary judgment on her negligent-misrepresentation claim because there were genuine fact issues as to whether appellant detrimentally relied on SYSCO’s misrepresentations that it was not necessary for her to independently obtain CDL training. {¶ 19} In Delman v.

Cleveland Hts. (1989), 41 Ohio St.3d 1, 4, 534 N.E.2d 835, the Ohio Supreme Court articulated the elements of negligent misrepresentation as follows, quoting 3 Restatement of the Law 2d, Torts (1965), Section 552(1): “One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” {¶ 20} Therefore, the elements for negligent misrepresentation “require (1) a defendant who is in the business of supplying information; and (2) a plaintiff who sought guidance with respect to his business transactions from the defendant.” Nichols v.

Ryder Truck Rental, Inc. (June 23, 1994), Cuyahoga App. No. 65376, 1994 WL 285000, discretionary appeal not allowed (1994), 71 Ohio St.3d 1421, 642 N.E.2d 386. {¶ 21} In Nichols, this court specifically rejected the application of the tort of negligent misrepresentation to an employer-employee relationship because an employer is not in the business of supplying information for the guidance of others. We concluded: Such persons who are in the business of supplying information for the guidance of others typically include attorneys, surveyors, abstractors of title and banks dealing with no-depositors’ checks.

The business transactions of the alleged injured party are usually those involving lease or insurance agreements. No court in Ohio, however, has held the tort of negligent misrepresentation applicable to the employer-employee relationship. (Citations omitted.) {¶ 22} Appellant acknowledges that no employee has been successful in maintaining a cause of action for negligent misrepresentation against an employer. However, she asks us to recognize a “developing” trend in the law of the tort of negligent misrepresentation in employer-employee relationships.

In support of this statement, she relies on other states that have recognized such a cause of action. She argues that this trend in other states suggests that “if the Ohio Supreme Court was specifically asked to decide whether an employer can be held liable for negligent misrepresentations to an employee, it would hold that such a liability may arise.” We find that if the Ohio Supreme Court wanted to recognize such a cause of action, it had the opportunity to do so in Nichols.

Moreover, a majority of the cases cited by appellant in support of this argument existed prior to our decision in Nichols and prior to the Ohio Supreme Court’s denying the Nichols appeal. {¶23} Therefore, based on our precedent in Nichols, we find that the trial court properly granted

summary judgment in favor of SYSCO on appellant’s negligent-misrepresentation claim. {¶ 24} Accordingly, the second assignment of error is overruled. Judgment affirmed. Rocco, J., concurs. Cooney, P.J., concurs in part and dissents in part.