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Fabbro v. National Fraternal Order of Eagles9/10/1999
nt carries that burden, the burden shifts back to appellant to produce evidence that the defendant's stated justification is merely a pre-text for unlawful discrimination. Id. at 101.
Simarily, a cause of action for retaliation requires that appellant engaged in protected activity, that appellant was the subject of an adverse employment action, and that a causal link existed between the protected activity and the adverse action. Chandler v. Empire Chemical, Inc. (1994), 99 Ohio App. 3d 396, 402. Once appellant establishes a prima facie case of unlawful retaliation, the defendant would then have the burden of articulating a legitimate reason for the adverse employment action. Id. The burden would then shift back to appellant to demonstrate that the defendant's proffered explanation is merely a pretext. Id.
In essence, the burden-shifting mechanisms by which a cause of action for sexual discrimination and retaliation are proven require a demonstration that the employer took an adverse action against the employee based on a discriminatory or a retaliatory reason. Appellant must necessarily demonstrate that the defendants in the instant action intended to discriminate against her based on gender, or as retaliation. We can conceive of no set of facts under which appellant could succeed on her claims in the instant case where the Johnstown Lodge, as the insured in this case, acted accidentally, or did not intend or direct the acts in question. Therefore, the remaining three claims do not arguably fall within Western Reserve's policy of insurance with the Johnstown Lodge. Accordingly, the court did not err in granting summary judgment.
The third assignment of error is overruled. The judgment of the Licking County Common Pleas Court is affirmed.
By Gwin, J., and Wise, P.J., Hoffman, J., concurs in part; Dissents in part.
Hoffman, J., Concurring in part and Dissenting in part I fully concur in the majority's analysis and Disposition of appellant's first two assignments of error. I further concur in the majority's analysis and Disposition of appellant's third assignment of error as it pertains to appellant's causes of action for sexual discrimination and retaliation. However, I respectfully Dissent from the majority's Conclusion appellee Western Reserve Mutual Casualty Company does not provide coverage for appellant's claim of defamation. Appellant's claim of defamation presents a personal injury claim in contrast to a bodily injury claim. The insurance policy at issue contained an endorsement specifically providing liability coverage for personal injury arising out of the oral or written publication of material that slanders or libels a person or organization. See, Endorsement GL-102ED1-87. The "accidental" occurrence language and exclusionary provision noted by the majority relate only to bodily injury or property damage claims. They do not preclude coverage for appellant's personal injury claim for defamation, for which coverage is specifically extended in the endorsement noted supra.
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