[Cite as Caiazza v. Mercy Med. Ctr., 2014-Ohio-2290.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
MATTHEW P. CAIAZZA : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : MERCY MEDICAL CENTER, ET AL. : Case No. 2013CA00181 : Defendants-Appellees : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012CV03652
JUDGMENT: Affirmed/Reversed in Part & Remanded
DATE OF JUDGMENT: May 27, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
SALLY D. HENNING KAREN SOEHNLEN MCQUEEN 7296 Ashburton Circle, NW P.O. Box 36963 North Canton, OH 44720 Canton, OH 44735-6963
TODD M. CONNELL CRAIG PELINI 150 West Avenue, Suite 102 8040 Cleveland Avenue, NW Tallmadge, OH 44278 North Canton, OH 44720
For SODEXO/Brian Colosimo
OWEN RARRIC P.O. Box 36963 Canton, OH 44735-6963 Stark County, Case No. 2013CA00181 2
Farmer, J.
{¶1} In 1999, appellant, Matthew Caiazza, began employment with appellee,
Mercy Medical Center, Inc. In 2010, appellant worked as an LPN on 9 Main.
{¶2} In 2006, appellee, Jennifer Jones, began employment with appellee
Mercy, working in the food services department.
{¶3} Appellant and appellee Jones would frequently take "smoking breaks"
together, outside, off the hospital's property.
{¶4} On August 28, 2010, appellee Jones reported to her night supervisor,
Terrance Bowman, that during one of the smoke breaks, appellant had inappropriately
touched her breast outside of her clothing. The police were called and an investigation
ensued.
{¶5} Appellant explained that during the smoke break, appellee Jones offered
him the opportunity to touch her breast in exchange for the narcotic pain reliever,
Vicodin. He informed her that he could not give her any Vicodin, whereupon she invited
appellant to touch her breast anyway and he did so. A couple hours later, appellant
spoke to appellee Jones and informed her that he loved his wife and they could not
engage in a relationship. Thereafter, appellee Jones reported the incident.
{¶6} On August 30, 2010, appellant "forcibly" resigned his position at the
request of Lorraine Washington, appellee Mercy's then Director of Human Resources.
{¶7} Appellant was subsequently charged with gross sexual imposition. His
defense counsel subpoenaed appellee Mercy for employee and personnel records for
both appellant and appellee Jones. Appellant did not receive all of the requested Stark County, Case No. 2013CA00181 3
documents and as a result, pled no contest to a reduced charge of disorderly conduct in
November 2010.
{¶8} On November 26, and December 3, 2012, appellant filed a complaint and
an amended complaint, respectively, against appellees Mercy and Jones, and also
several individuals associated with appellee Mercy in a supervisory position, to wit:
Thomas Cecconi, Peter Christ, Jeffrey Smith, Allyson Kelly, Kathy Casler, Patti
Bresnahan, and Lorraine Washington. Appellant also named SODEXO, Inc., the
company that provided food services to appellee Mercy, and Brian Colosimo, an
employee thereof and appellee Jones's supervisor. Appellant made claims of breach of
contract, sexual harassment and aiding and abetting discrimination under R.C. Chapter
4112, spoliation, fraud, unlawful retaliation, civil conspiracy, and negligent
retention/supervision.
{¶9} All defendants save for appellee Jones filed a motion to dismiss the
complaint. By judgment entry filed February 14, 2013, the trial court granted the motion
in part, dismissing appellant's claims for breach of contract and aiding and abetting
discrimination, and dismissing the individual defendants on appellant's claims for sexual
harassment, unlawful retaliation, and negligent retention/supervision.
{¶10} All parties moved for summary judgment on the remaining claims.
Thereafter, appellant voluntarily dismissed defendants SODEXO and Colosimo on July
8, 2013. By judgment entry filed August 9, 2013, the trial court granted summary
judgment in favor of appellees Mercy, its individual named employees, and Jones.
{¶11} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows: Stark County, Case No. 2013CA00181 4
I
{¶12} "THE TRIAL COURT ERRED IN LAW BY DISMISSING APPELLANT'S
CLAIMS FOR BREACH OF DUTY AND AIDING AND ABETTING, AND
DISCRIMINATION, HARASSMENT AND RETAILIATION CLAIMS AGAINST
INDIVIDUAL DEFENDANTS."
II
{¶13} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON
THE REMAINING COUNTS."
{¶14} Appellant claims the trial court erred in granting the Civ.R. 12(B)(6) motion
to dismiss on his claims for breach of contract and aiding and abetting discrimination,
and dismissing the individual defendants on his claims for sexual
harassment/discrimination and unlawful retaliation. We agree in limited part regarding
the claims for aiding and abetting discrimination and sexual discrimination.
{¶15} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.
Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228 (1990). A
motion to dismiss for failure to state a claim upon which relief can be granted is
procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey
County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo
analysis, we must accept all factual allegations of the complaint as true and all
reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber,
57 Ohio St.3d 56 (1991). Stark County, Case No. 2013CA00181 5
BREACH OF DUTY CLAIM
{¶16} In his amended complaint, appellant references "The Employee
Information Booklet," a compilation of personnel policies, practices, and procedures for
appellee Mercy, including a Code of Conduct and Ethical Behavior. Appellant claimed
appellee Mercy violated these policies and procedures by not fully complying with
subpoenas issued by him in conjunction with his criminal case (¶ 74), failing to fully
investigate his allegations against appellee Jones (¶ 75), and failing to properly handle
the respective complaints of himself and appellee Jones (¶ 76).
{¶17} The facts as alleged in the amended complaint that we are required to
accept as true under a Civ.R. 12(B)(6) standard are: (1) appellee Mercy's Employee
Handbook and Code of Conduct and Ethical Behavior bound all the parties (¶ 15); (2)
appellee Mercy knew of a prior incident in 2009 involving appellee Jones and another
co-worker (Adam Harsh) because of appellee Jones's fiancé's actions during the
incident (¶ 30); (3) no report was made to the police regarding the 2009 incident (¶ 37);
(4) no investigation was conducted as to why appellee Jones delayed reporting the
incident sub judice (¶ 38); (5) its employees accepted appellee Jones's allegations as
true, and made no inquiry into appellant's allegations against appellee Jones (¶ 41-43,
58); (6) not all documents were disclosed when subpoenaed in conjunction with
appellant's criminal trial, including documents regarding appellee Jones's veracity (¶ 60-
63); (7) no one investigated if the touching of appellee Jones's breast was consensual
(¶ 46); (8) without interviewing appellee Jones, Lorraine Washington decided to
terminate appellant (¶ 54-56); and (9) appellee Jones was not disciplined for violating
appellee Mercy's policies (¶ 59). Stark County, Case No. 2013CA00181 6
{¶18} It is appellant's position that the Employee Handbook and Code of
Conduct and Ethical Behavior are sufficient to overcome Ohio's employment at-will
doctrine. In Mers v. Dispatch Printing Co., 19 Ohio St.3d 100 (1985), paragraph one of
the syllabus, the Supreme Court of Ohio held: "Unless otherwise agreed, either party to
an oral employment-at-will employment agreement may terminate the employment
relationship for any reason which is not contrary to law." The Mers court also held the
following at 105:
We therefore hold that where appropriate, the doctrine of
promissory estoppel is applicable and binding to oral employment-at-will
agreements when a promise which the employer should reasonably
expect to induce action or forbearance on the part of the employee does
induce such action or forbearance, if injustice can be avoided only by
enforcement of the promise.
The test in such cases is whether the employer should have
reasonably expected its representation to be relied upon by its employee
and, if so, whether the expected action or forbearance actually resulted
and was detrimental to the employee.
{¶19} Ohio has not abandoned its public policy of employment at-will, as
illustrated by the breadth of cases distinguishing Mers. In Bartlett v. Daniel Drake
Memorial Hospital, 75 Ohio App.3d 334, 338 (1st Dist.1991), our brethren from the First
District set forth the exceptions commonly accepted: Stark County, Case No. 2013CA00181 7
It is undisputed that Gwen was classified as an employee at will
where, unless otherwise agreed, either party may terminate the
employment relationship for any reason not contrary to law. Fawcett v.
C.G. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d
144. In Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR
261, 483 N.E.2d 150, the Ohio Supreme Court established two narrow
exceptions to an employer's ability to discharge employees freely under
employment-at-will contracts. These two exceptions involve the doctrine
of promissory estoppel and the creation of an implied contract.
Undisturbed by the holding in Mers is the generally accepted conclusion
that items such as employer handbooks, company policy or oral
representations do not create employee rights which alter the "termination
for any reason" terms for discharge under the at-will situation unless the
parties have a "meeting of the minds" indicating that such items are to be
considered valid contracts altering the terms for discharge. Turner v. SPS
Technologies, Inc. (June 4, 1987), Cuyahoga App. No.
51945, unreported, 1987 WL 11967. While personnel manuals may be
important in establishing the terms and conditions of employment, absent
the necessary mutual assent or meeting of the minds by the employer and
employee to establish employment-termination rights, handbooks or other
supplementary manuals or materials merely constitute unilateral
statements of company rules and regulations. Turner v. SPS Stark County, Case No. 2013CA00181 8
Technologies Inc., supra; Isgro v. Deaconness Hosp. (Oct. 30, 1980),
Cuyahoga App. No. 41966, unreported.
In the case sub judice, we conclude that no contractual intent
existed between the parties to modify the original at-will contract of
employment. Appellants' reliance on Drake Hospital's "Employee
Discipline" and "Predisciplinary Conference and Appeal Procedure"
materials is misplaced. These policies are but mere unilateral statements
of the hospital's procedure for the invocation of disciplinary action against
an employee, and do not create an implied employment agreement
between the parties. Therefore, appellants did not possess a cause of
action against the appellees for breach of contract predicated upon the
provisions of Drake Hospital's personnel manual. Consequently, there
was no breach of contract or constructive discharge as alleged by
appellants, and the trial court properly granted summary judgment to
appellees on this claim.
{¶20} Therefore, as to the claims of inadequate investigation and bias one-
sidedness that are accepted as true, the Employee Handbook and Code of Conduct
and Ethical Behavior did not modify the employment-at-will agreement and guarantee
employment. As in Bartlett, mere assertions that a more thorough investigation was
warranted are not sufficient to quash Ohio's employment at-will doctrine. Stark County, Case No. 2013CA00181 9
{¶21} As for appellant's argument regarding a breach of duty to respond
appropriately and completely to a duly issued subpoena, we find such claim not to be
supported by any legal extension of Ohio's employment at-will doctrine.
{¶22} The trial court did not err in dismissing the breach of duty claim.
AIDING AND ABETTING DISCRIMINATION CLAIM
{¶23} In his complaint at ¶ 87-88, appellant claimed the defendants, individually
and collectively, violated R.C. 4112.02, unlawful discriminatory practices, specifically,
subsection (J) in light of subsection (A) which state the following:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the race, color, religion, sex,
military status, national origin, disability, age, or ancestry of any person, to
discharge without just cause, to refuse to hire, or otherwise to discriminate
against that person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly or indirectly related to
employment.
(J) For any person to aid, abet, incite, compel, or coerce the doing
of any act declared by this section to be an unlawful discriminatory
practice, to obstruct or prevent any person from complying with this
chapter or any order issued under it, or to attempt directly or indirectly to
commit any act declared by this section to be an unlawful discriminatory
practice. Stark County, Case No. 2013CA00181 10
{¶24} Appellant claimed he was constructively discharged, while appellee Jones
"was not issued a notice that she had violated any policy" (¶ 57, 59). Appellant claimed
he was discriminated against for being a male, as appellee Mercy and its employees
failed to fully investigate the allegations in violation of hospital policy and "undertaken on
behalf of women who made complaints" (¶ 64). In addition, appellee Mercy was aware
of the 2009 incident and knew or should have known that appellee Jones "acted in an
unreliable manner" (¶ 30, 49).
{¶25} The individual named defendants associated with appellee Mercy included
Thomas Cecconi (President and Chief Executive Officer), Peter Christ (Director of
Security), Jeffrey Smith (Chief Operations Officer, Vice-President, and Chief
Compliance Officer), Allyson Kelly (Administrative Director), Kathy Casler (Clinical
Manager), Patti Bresnahan (Human Resources Manager or Interim Director/Director of
Human Resources), and Lorraine Washington (Director of Human Resources, January
1, 2009 to January 1, 2011).
{¶26} In Genaro v. Central Transport, Inc., 84 Ohio St.3d 293, 300 (1999), the
Supreme Court of Ohio held the following:
Based on the foregoing, we believe that the clear and unambiguous
language of R.C. 4112.01(A)(1) and (A)(2), as well as the salutary
antidiscrimination purposes of R.C. Chapter 4112, and this court's
pronouncements in cases involving workplace discrimination, all evidence
that individual supervisors and managers are accountable for their own
discriminatory conduct occurring in the workplace environment. Stark County, Case No. 2013CA00181 11
Accordingly, we answer the certified question in the affirmative and hold
that for purposes of R.C. Chapter 4112, a supervisor/manager may be
held jointly and/or severally liable with her/his employer for discriminatory
conduct of the supervisor/manager in violation of R.C. Chapter 4112.
{¶27} From our review of the amended complaint and facts alleged in ¶ 15-64,
there are no allegations of any participation in the decision to terminate appellant by Mr.
Cecconi, Mr. Smith, and Ms. Bresnahan. Therefore, the amended complaint fails to
state a claim for aiding and abetting discrimination against these defendants.
{¶28} Apart from the presence of Mr. Christ, Ms. Kelly, and Ms. Casler at
meetings (¶ 54, 56), there are no allegations of them making the actual decision to
terminate appellant save for their agreement with Ms. Washington's decision to so
terminate (¶ 56) or of them being involved totally in the overall investigation. Therefore,
the amended complaint fails to state a claim for aiding and abetting discrimination
against these defendants.
{¶29} The amended complaint claims the decision to terminate appellant was
made by Ms. Washington, the Director of Human Resources at the time for appellee
Mercy (¶ 56). Therefore, we conclude it was error to dismiss the claim against Ms.
Washington and appellee Mercy under the Civ.R. 12(B)(6) standard.
{¶30} The trial court erred in dismissing the aiding and abetting discrimination
claim against Ms. Washington and appellee Mercy. Stark County, Case No. 2013CA00181 12
SEXUAL HARASSMENT/DISCRIMINATION AND
UNLAWFUL RETALIATION CLAIMS
{¶31} Appellant argues the trial court erred in dismissing the individual named
defendants.
{¶32} R.C. 4112.02(I) states it shall be an unlawful discriminatory practice:
For any person to discriminate in any manner against any other
person because that person has opposed any unlawful discriminatory
practice defined in this section or because that person has made a
charge, testified, assisted, or participated in any manner in any
investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of
the Revised Code.
{¶33} R.C. 4112.01(A)(2) states the term "employer" as used in R.C. Chapter
4112 "includes the state, any political subdivision of the state, any person employing
four or more persons within the state, and any person acting directly or indirectly in the
interest of an employer."
{¶34} Appellant argues the individual named defendants were acting on behalf
of and in the interest of appellee Mercy and therefore, they meet the definition of
"employer" under R.C. 4112.01(A)(2).
{¶35} Based upon the facts in the amended complaint, the only "employer" who
made the decision to terminate appellant was Ms. Washington, Director of Human
Resources at the time. Although it was alleged that Mr. Christ, Ms. Kelly, and Ms. Stark County, Case No. 2013CA00181 13
Casler were aware of appellee Jones's complaint and were involved in meetings, the
decision to terminate appellant as averred in the amended complaint was Ms.
Washington's alone.
{¶36} The unlawful retaliation claim centered on appellee Mercy's refusal to
provide him with a reference. The only allegation of retaliation was against appellee
Mercy.
{¶37} The trial court did not err in dismissing the sexual
harassment/discrimination claim against the individual named defendants with the
exception of Ms. Washington. The trial court did not err in dismissing the unlawful
retaliation claim against the individual named defendants.
{¶38} Assignment of Error I is granted in part and denied in part. Claims of
aiding and abetting discrimination against appellee Mercy and Ms. Washington are
reinstated, along with the claim of sexual discrimination against Ms. Washington.
{¶39} Appellant claims the trial court erred in granting summary judgment to
appellees Mercy, its individual named employees, and Jones on the remaining claims:
aiding and abetting (Jones), sexual harassment (Jones/Mercy), spoliation (all), fraud
(all), unlawful retaliation (Jones/Mercy), civil conspiracy (all), and negligent
retention/supervision (Jones/Mercy).1
{¶40} Summary Judgment motions are to be resolved in light of the dictates of
Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.
Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:
1 As stated in the facts above, appellee Jones did not participate in the motion to dismiss. Stark County, Case No. 2013CA00181 14
Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that (1) no genuine issue as to any
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 nonmoving party, that conclusion is
adverse to the party against whom the motion for summary judgment is
made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,
628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50
Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
{¶41} As an appellate court reviewing summary judgment motions, we must
stand in the shoes of the trial court and review summary judgments on the same
standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio
St.3d 35 (1987).
SEXUAL HARASSMENT/DISCRIMINATION CLAIM
{¶42} Appellant argues there existed genuine issues of material fact regarding
his claim for sexual harassment/discrimination. In his amended complaint, appellant
alleged a direct violation of an unlawful discriminatory practice under R.C. 4112.01(A),
cited above. Appellant claimed disparate treatment because of his gender (¶ 80), the
reasons for his termination were pretextual and a sham (¶ 81), and the lack of Stark County, Case No. 2013CA00181 15
cooperation in complying with his subpoena vis-á-vis compliance with subpoena
requests "on behalf of current or former female employees" (¶ 82-83).
{¶43} Appellant claimed he was discriminated against because he is a male and
was involved in sexual contact and terminated from employment, while appellee Jones,
a female, was involved in the same sexual contact, but was not terminated.
{¶44} There appears to be two R.C. 4112.02 claims: (1) sexual harassment in
the creation of a hostile work environment, and (2) sexual discrimination.
{¶45} As stated by this court in Jackson v. Saturn of Chapel Hill, Inc., 5th Dist.
Stark No. 2005 CA 00067, 2005-Ohio-5302, ¶ 17, in order to maintain a claim for sexual
harassment, a plaintiff must demonstrate:
(1) that the employee was a member of a protected class, (2) that
the employee was subjected to unwelcome sexual harassment in the form
of sexual advances or requests for sexual favors, (3) that the harassment
complained of was based on gender, and (4) that the employee's
submission to the unwelcome advances was an express or implied
condition for receiving job benefits or that the employee's refusal to submit
to the supervisor's sexual demands resulted in a tangible job detriment.
(Citations omitted.)
{¶46} Appellant admitted to freely touching appellee Jones's breast, and
appellee Mercy acknowledged the sexual contact was consensual. A non-supervisory
employee such as appellee Jones lacked any ability to control appellant's employment. Stark County, Case No. 2013CA00181 16
The sexual harassment claim clearly fails. We find no genuine issue of material fact to
exist on a quid pro quo harassment claim against appellee Jones or other
employees/supervisors.
{¶47} As stated by this court in Thompson v. Dover Elks, 5th Dist. Tuscarawas
No. 2002 AP 02 0016, 2002-Ohio-5610, ¶ 16, in order to establish a discrimination claim
under R.C. 4112.02(A), a plaintiff must prove:
***(1) that he was a member in a protected class; (2) that he was
discharged from his job by the employer; (3) that he was qualified for the
position; and (4) that he was replaced by a person who did not belong to
the protected class. McDonnell Douglas Corp. v. Green (1973), 411 U.S.
792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668. However, in cases involving
reverse gender discrimination, courts have modified the
McDonnell standard to enable plaintiffs who are members of a dominant
group to prove a prima facie case of discrimination. To show reverse
discrimination and to avoid a summary judgment, the plaintiff must
establish a prima facie case by showing: (1) background circumstances
supporting the suspicion that the defendant is the unusual employer who
discriminates against the majority; and (2) that the employer treated
employees who were similarly situated, but not members of the protected
group, more favorably. Murray v. Thistledown Racing Club, Inc. (C.A.6,
1985), 770 F.2d 63, 67. Stark County, Case No. 2013CA00181 17
{¶48} Appellee Mercy argues appellant has not established that any female
employee who engaged in sexual contact with another employee was not terminated,
thereby failing to establish the second prong above. To establish "similarly situated," a
plaintiff must show "that the comparable employee is similar 'in all of the relevant
aspects.' " Barry v. Noble Metal Processing, Inc., 276 Fed.Appx. 477, 480 (6th
Cir.2008), citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th
Cir.1998). As explained by appellee Mercy in its brief at 18:
In Barry, the court went on to state, "[w]hile the precise aspects of
employment that are relevant to determining whether the similarly situated
requirement has been satisfied depend on the facts and circumstances of
each case, this court has generally focused on whether the plaintiff and
the comparable employee: (1) share the same supervisor; (2) are subject
to the same standards; and (3) have engaged in the same conduct
'without such differentiating or mitigating circumstances that would
distinguish their conduct or the employer's treatment of them for it.' " Id. at
480-481, quoting Ercegovich at 352 (internal quote marks omitted).
{¶49} In her deposition at 68-69, 75, and 76-77, respectively, Ms. Washington
explained her decision to terminate appellant:
Q. What else do you remember was said at the time? Stark County, Case No. 2013CA00181 18
A. ***I remember Pete saying that the police were called, that Matt
initially denied that he had done this to the police, and that he did
eventually admit that he did it, that he did touch her breasts. And at that
point I virtually called a halt to the meeting and said, We're done here.
***
Q. And that he later said to the police that he did touch her, her
breasts, correct?
A. Yes.
Q. And that Matt further said he was invited to do so, correct?
Q. And Matt also told - - Christ also told you that Matt had said she
had been seeking Vicoden (sic), did he not?
A. I do remember that, yes.
Q. Okay. So you're having this conversation. Did you ask if Matt
had been asked to give a written statement?
A. No. After - - after Pete told me that he admitted to touching her
breasts, albeit by invitation, I did not - - my statement was, Well, we're
done here. The employee has admitted that what they did - - what they
did, that's inappropriate in our environment. We're done.
*** Stark County, Case No. 2013CA00181 19
Q. Okay. And you also - - I've been told by other eyewitness that
consensual sexual activity that's off campus is not forbidden by the
hospital; is that correct?
A. Consensual sexual activity.
Q. Between employees is not forbidden by the hospital.
A. We would not be in a position to forbid that unless it impacts the
hospital in some type of way. If it happens that it be - - I think when
employees bring their personal problems into the workplace then whether
it's on campus or off campus that makes - - they make it part of the
hospital's problem by bringing it to the hospital administration.
{¶50} Ms. Washington admitted that both appellant and appellee Jones had
drawn the hospital into their sexual contact encounter (depo. at 79), no action was taken
against the female employee, appellee Jones (depo. at 80), and a subsequent
investigation was not done (depo. at 81-82). Ms. Washington also admitted appellant's
termination occurred with the knowledge that appellant had admitted to consensual
touching (depo. at 87-89). She characterized the reason for the termination to
appellant's lack of good judgment (depo. at 92-94) and "bringing it into the workplace"
(depo. at 94-95). "Bringing it into the workplace" appears to equate to lodging a
complaint and "they have made their relationship my problem" (depo. at 94-95).
{¶51} Also admitted in Ms. Washington's deposition are two facts that have
peripheral bearing on this issue. First, appellant had clocked out for the smoke break Stark County, Case No. 2013CA00181 20
and appellee Jones had not; and secondly, the activity occurred off the property of
appellee Mercy (depo. at 75-76, 105-106).
{¶52} Appellant argues his discrimination claim should survive because he
proved disparate treatment of a similarly situated employee. The similarly situated
employee is Julie Ann Findley, a housekeeping employee who as of result of a traffic
stop, was arrested on drug related charges and was subsequently found guilty of
disorderly conduct. See, Appellant's June 25, 2013 Motion for Summary Judgment at
pages 28-30. Appellee Mercy was notified of the drug arrest by the Perry Police
Department because the drugs involved "marijuana, percocet, and nyproxin, without a
legal prescription" Id. at 28-29. Like appellant, Ms. Findley was charged with a criminal
offense, and appellee Mercy was concerned because of her access to drugs. So in Ms.
Washington's words, Ms. Findley's actions "brought it into the workplace." Ms. Findley's
criminal case, as appellant's, was resolved with a disorderly conduct plea, a non-status
criminal offense. Ms. Findley was never disciplined or terminated at the beginning or
end of her criminal case. In fact, a February 17, 2010 email sent by Mr. Christ to Ms.
Bresnahan, cited in appellant's motion at 29, indicated a disorderly conduct charge was
not a reason for termination:
I was updating files we keep on reports we prepare. For info, she
was charged on 7/16/2009. One count drug paraphernalia offense was
reduced to disorderly conduct and was found guilty. One count
possession of drugs and that charge was dismissed. One count of driving
on suspended operator license and that was dismissed.* * * We do not Stark County, Case No. 2013CA00181 21
have employees that have been convicted of disorderly conduct. I
checked Kronos and she still works for us. We need to make note in her
file that Security has case number 09-0359 in which she was arrested on
drug charges in the event we have another problem with her.
{¶53} Under de novo review, we find a genuine issue of material fact to exist on
the issue of discrimination under R.C. 4112.02(A), and the trial court erred in granting
summary judgment to appellee Mercy and dismissing the claim against Ms. Washington
as discussed above. However, there are no genuine issues of material fact on this
issue regarding appellee Jones and any other hospital employees, or on the issue of
aiding and abetting against appellee Jones.
{¶54} Given appellee Mercy's concession that the sexual contact during
appellant's smoke break off property was consensual, there is a clear disparity of
treatment between appellant and appellee Jones. One can argue that the facts on their
own establish disparate treatment.
{¶55} The trial court erred in granting summary judgment to appellee Mercy and
dismissing the claim against Ms. Washington on the discrimination claim.
SPOLIATION CLAIM
{¶56} The tort of spoliation was first recognized by the Supreme Court of Ohio in
Smith v. Howard Johnson Company, Inc., 67 Ohio St.3d 28, 29, 1993-Ohio-229:
(1) A cause of action exists in tort for interference with or
destruction of evidence; (2a) the elements of a claim for interference with Stark County, Case No. 2013CA00181 22
or destruction of evidence are (1) pending or probable litigation involving
the plaintiff, (2) knowledge on the part of defendant that litigation exists or
is probable, (3) willful destruction of evidence by defendant designed to
disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5)
damages proximately caused by the defendant's acts; (2b) such a claim
should be recognized between the parties to the primary action and
against third parties; and (3) such a claim may be brought at the same
time as the primary action.
{¶57} In Allstate Insurance v. QED Consultants, Inc., 5th Dist. Knox No.
09CA14, 2009-Ohio-4896, ¶ 19, this court stated, "[t]he Ohio Supreme Court has not
extended its holding in Smith v. Howard Johnson, supra, to cases where the spoliation
claim asserted does not involve the willful destruction or alteration of physical evidence."
{¶58} Appellant argues the spoliation occurred in relation to his criminal case.
{¶59} Appellant argues appellee Mercy, incorrectly, intentionally or not,
responded to the criminal subpoena for "personnel and employment records." It is
undisputed that appellee Mercy did not send several documents concerning the 2009
incident involving appellee Jones and another coworker (Adam Harsh): MMC 00047,
MMC 00048, MMC 000212, MMC 000619, MMC 000227, MMC 000229, MMC 000231,
MMC 000232, MMC 000233, MMC 000239, MMC 000269, and MMC 000275
(Admission Nos. 9, 10, 16-22). See, Appellant's June 25, 2013 Motion for Summary
Judgment at page 32. Stark County, Case No. 2013CA00181 23
{¶60} The gravamen of appellant's claim is not that the documents were
destroyed (the very argument itself specifies names and the contents of the
documents), but that appellee Mercy did not properly respond to the criminal
subpoenas. Appellant pled no contest to disorderly conduct, and does not cite to any
damages as a result of the negligence to answer the subpoenas. As indicated by the
Supreme Court of Ohio, any spoliation claim must be brought in the original case i.e.,
the criminal case.
{¶61} Appellant also claims there are "obfuscated" documents that he was
unable to obtain: an email from Mr. Colosimo to Ms. Washington that she refers to in a
December 13, 2010 email to Mr. Colosimo, and a drafted reference letter by Ms. Casler
that was faxed to appellant on August 31, 2010. See, Appellant's June 25, 2013 Motion
for Summary Judgment at pages 41-42.
{¶62} Ms. Casler now cannot recall the letter. Casler depo. at 22, 31. In his
motion for summary judgment on page 43, appellant argued the items were not
destroyed, but were found save the credibility issue raised by Ms. Casler's denial of the
reference letter:
Had all of the documentation referenced in this section on
spoliation been tendered instead of Defendants' repeated defiance and
interference, Plaintiff would not have had to resort to extraordinary
measures in the instant case or other means to secure such evidence in
this case. It would not have been necessary for Plaintiff to incur the
expense of taking Adam Harsh's deposition. Additionally, the mere fact Stark County, Case No. 2013CA00181 24
that Plaintiff had to expend any time in any part of any deposition to
explore details of how any of the Defendants, both individual and
corporate, maintained, culled, retained, and assembled documents, meant
that Plaintiff incurred added expense that he otherwise should not have
had to incur had these Defendants complied with their respective
obligations under the subpoenas and/or discovery requests.
{¶63} The trial court did not err in granting summary judgment to appellees on
the spoliation claim.
FRAUD CLAIM
{¶64} In Burr v. Stark County Board of Commissioners, 23 Ohio St.3d 69 (1986),
paragraph two of the syllabus, the Supreme Court of Ohio found the elements of fraud
to be as follows:
(a) a representation or, where there is a duty to disclose,
concealment of a fact, (b) which is material to the transaction at hand, (c)
made falsely, with knowledge of its falsity, or with such utter disregard and
recklessness as to whether it is true or false that knowledge may be
inferred, (d) with the intent of misleading another into relying upon it, (e)
justifiable reliance upon the representation or concealment, and (f) a
resulting injury proximately caused by the reliance. Stark County, Case No. 2013CA00181 25
{¶65} The fraud claim centers on the responsiveness or non-responsiveness of
appellee Mercy and Ms. Washington to the criminal subpoenas. In his amended
complaint, appellant alleged the following:
126. When responding to the subpoena, MMC made a
representation of compliance with the subpoena. MMC's representation
was false, with knowledge of its falsity, or with such utter disregard and
recklessness as to whether it was true or false that MMC's knowledge may
be inferred.
128. Washington and MMC violated the duty to comply with the
Subpoena under Ohio Law as well as under MMC Compliance Policy.
129. Defendant Washington and MMC knew or should have known
that responsive documents were located in the Personnel department, and
failed to secure and produce them.
130. Defendant Washington and MMC knew or should have known
that responsive documents were located elsewhere at MMC, or in the
custody of SODEXO, and failed to secure and produce them in response
to the Subpoena.
131. By failing to inform the parties in the criminal action that
documents were being withheld or destroyed, MMC concealed factual
information when MMC had a duty to speak. Stark County, Case No. 2013CA00181 26
{¶66} Appellant argues appellee Mercy had a duty to disclose that the
responses to the subpoenas were deficient or qualified. As a result, the subpoenas
could have been reissued. Appellant's claimed harm is that he would have gone to trial
but instead, chose a good plea deal.
{¶67} Appellant further alleges that Ms. Washington and Ms. Bresnahan, Human
Resources Manager or Interim Director/Director of Human Resources, only turned over
the "official file." We fail to see how conforming to the language of the subpoenas was
in any way fraudulent.
{¶68} Appellant argues in response to a video request, investigation documents
were incomplete because no investigation reports, witness statements, security logs or
"any other" such documentation was provided. The investigation report was done by
the Canton Police Department and as the report indicates, "that material" was evaluated
by the Canton Police Prosecutor.
{¶69} Appellant challenges the trial court's determination of "intent to defraud" by
citing the fact that the subpoenas were responded to according to the normal
operational procedures as testified to by Amy Heuer. The center of appellant's claim is
that appellee Mercy failed to disclose the 2009 incident involving appellee Jones and
Mr. Harsh. However, appellant knew about the previous sexual harassment complaint
made by appellee Jones.
{¶70} Not only did there not exist genuine issues of material fact on intent, but
by appellant's own admission, he knew of the previous 2009 incident and therefore,
there was no justifiable reliance. Stark County, Case No. 2013CA00181 27
{¶71} The subpoenas were only directed to appellee Mercy therefore, any fraud
claimed against any other named defendants was not warranted.
{¶72} The trial court did not err in granting summary judgment to appellees on
the fraud claim.
UNLAWFUL RETALIATION CLAIM
{¶73} As explained by our brethren from the Tenth District in Peterson v.
Buckeye Steel Casings, 133 Ohio App.3d 715, 727 (10th Dist.1999):
To prove a claim of retaliation, a plaintiff must establish three
elements: (1) that she engaged in protected activity, (2) that she was
subjected to an adverse employment action, and (3) that a causal link
exists between a protected activity and the adverse action. Once a
plaintiff successfully establishes a prima facie case, it is the defendant's
burden to articulate a legitimate reason for its action. If the defendant
meets its burden, the burden shifts back to the plaintiff to show that the
articulated reason was a pretext.
{¶74} Appellant argues as a result of his discrimination claims under R.C.
Chapter 4112, appellee Mercy refused to give him a reference. Appellant was officially
terminated via his "forced" resignation on August 30, 2010. No action pursuant to R.C.
4112.02 was commenced prior to this date.
{¶75} Appellant argues because appellee Mercy knew the complaint was about
sexual contact, it could immediately determine appellant was engaged in a "protected Stark County, Case No. 2013CA00181 28
activity." However, a claim for sexual discrimination was not made until well after his
termination date of August 30, 2010 (appellant submitted a draft of a sexual
discrimination complaint to appellee Mercy on March 28, 2011). The issue regarding
the reference letter had long passed as a draft of the letter was faxed to appellant on
August 31, 2010 and a final reference was never given way in advance of March 28,
2011.
{¶76} In his motion for summary judgment, appellant argued appellee Jones
retaliated against him for turning down her sexual favors. There was no evidence that
appellee Jones had the ability to fire or discipline appellant. Therefore, the trial court
properly granted appellee Jones summary judgment on this claim.
{¶77} A remaining argument is whether appellant's termination was the result of
a belief that a sexual discrimination claim was going to be filed. As discussed above,
Ms. Washington stated appellant was terminated for lack of good judgment and bringing
the consensual sexual contact incident into the workplace.
{¶78} The trial court did not err in granting summary judgment to appellee Mercy
on the unlawful retaliation claim.
CIVIL CONSPIRACY CLAIM
{¶79} In his amended complaint, appellant claimed appellee Mercy and
SODEXO by their unlawful acts conspired maliciously, resulting in injury to appellant (¶
144).
{¶80} A claim for civil conspiracy requires proof of "a malicious combination of
two or more persons to injure another in person or property, in a way not competent for
one alone, resulting in actual damages." LeFort v. Century 21-Maitland Realty Stark County, Case No. 2013CA00181 29
Company, 32 Ohio St.3d 121, 126 (1987), citing Minarik v. Nagy, 8 Ohio App.2d 194,
196 (1963).
{¶81} On July 8, 2013, appellant voluntarily dismissed SODEXO as a party.
Therefore, there can be no claim for conspiracy or "conspiring together" when only one
defendant remains.
{¶82} The trial court did not err in granting summary judgment to appellees on
the civil conspiracy claim.
NEGLIGENT RETENTION/SUPERVISION CLAIM
{¶83} The amended complaint claims appellee Mercy negligently retained
appellee Jones and failed to prudently investigate, discipline or discharge her (¶ 147-
150). No allegations were made against appellee Jones.
{¶84} The elements of a negligent retention/supervision claim are: "(1) the
existence of an employment relationship; (2) the fellow employee's incompetence; (3)
the employer's actual or constructive knowledge of such incompetence; (4) the
employee's act or omission which caused the plaintiff's injuries; and (5) the employer's
negligence in hiring or retaining the employee as a proximate cause of the injury."
Zieber v. Heffelfinger, 5th Dist. Richland No. 08CA0042, 2009-Ohio-1227, ¶ 31;
Browning v. Ohio State Highway Patrol, 151 Ohio App.3d 798, 2003-Ohio-1108 (10th
Dist.).
{¶85} The trial court's decision to grant summary judgment to appellee Mercy on
this claim centered around a finding of no proximate cause to appellant's injuries. The
gravamen of appellant's claim is that appellee Mercy took no action in disciplining
appellee Jones, accepted her allegations, and through gender stereotype, chose only to Stark County, Case No. 2013CA00181 30
terminate him. Further, appellee Mercy knew or should have known appellee Jones's
propensity for falsification based upon her previous 2009 incident and various anecdotal
reports as to appellee Jones's attitude.
{¶86} In truth, Ms. Washington determined because appellant exhibited poor
judgment and the consensual sexual contact incident had been brought into workplace,
appellant should be terminated. It is also clear that appellee Mercy and Ms.
Washington have taken the position that appellant's version is the truth.
{¶87} What factors leading to appellee Mercy's failure to terminate appellee
Jones is unclear. However, a December 13, 2010 email between Ms. Washington and
Mr. Colosimo leads to the conclusion that because appellee Jones did not clock out for
her smoke break, she would be disciplined.
{¶88} We find the facts argued in support of this claim are in fact viable in
appellant's R.C. 4112.02(A) discrimination claim. The crux of the lawsuit is appellant's
termination leading to a violation of R.C. 4112.02(A) and not that appellee Jones was
negligently supervised or retained.
{¶89} Appellant argues appellee Mercy should have had 20/20 hindsight.
However, the pivotal point was that appellee Jones had initiated a criminal complaint,
not that she still had a job.
{¶90} We conclude that although there can be more than one proximate cause
of appellant's injury, the supervision and retention of appellee Jones after the fact is not
one of them.
{¶91} The trial court did not err in granting summary judgment to appellees
Mercy and Jones on the negligent retention/supervision claim. Stark County, Case No. 2013CA00181 31
{¶92} Lastly, because appellee Jones was not involved in the motion to dismiss,
the trial court granted summary judgment to appellee Jones on the breach of contract
claim. There does not appear to be any allegations against appellee Jones on this
claim. We find the trial court did not err in granting summary judgment to appellee
Jones on the breach of contract claim.
{¶93} Assignment of Error II is granted in part and denied in part. The trial court
erred in granting summary judgment to appellee Mercy on appellant's claim for sexual
discrimination.
{¶94} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed in part and reversed in part.
By Farmer, J.
Gwin, P.J. and
Delaney, J. concur.
SGF/sg 325