Pintagro v. Sagamore Hills Twp.

2012 Ohio 2284

• Court: Ohio Court of Appeals
• Decided: May 23, 2012
• Docket: 25697
• Status: Published

Opinion

[Cite as Pintagro v. Sagamore Hills Twp., 2012-Ohio-2284.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

SUSANNE PINTAGRO C.A. No. 25697

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE SAGAMORE HILLS TWP., et al. COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellees CASE No. CV2009-07-5378

DECISION AND JOURNAL ENTRY

Dated: May 23, 2012

DICKINSON, Presiding Judge.

INTRODUCTION

{¶1} Sagamore Hills Township’s fiscal officer hired an intern who made Susanne

Pintagro, the administrative assistant for the Township’s trustees, feel uncomfortable and

threatened. Ms. Pintagro took her concerns to the trustees, who promised to resolve the problem.

When they did not act as quickly as Ms. Pintagro wanted, she told them that she did not want to

work the same hours as the intern and that she would use her vacation time until they took

action. The trustees determined that, since both Ms. Pintagro and the intern had to work on

Mondays, they could not satisfy her demand. They, therefore, gave her the choice of either

resigning or being terminated. After Ms. Pintagro resigned, she sued the Township, the trustees,

and the Township’s lawyer for a hostile work environment, retaliation, wrongful termination,

tortious interference with a business relationship, age discrimination, civil conspiracy, and a

violation of Ohio’s Public Records Act. The Township, the trustees, and the lawyer moved for 2

summary judgment on all of her claims. Before the trial court ruled on their motions, Ms.

Pintagro moved to amend her complaint to add a claim that the trustees had violated Ohio’s

Open Meetings Law. The trial court denied her motion and granted summary judgment to the

defendants. Ms. Pintagro has appealed, arguing that the court incorrectly granted the Township

and the trustees summary judgment regarding her retaliation claim and that it incorrectly denied

her motion to amend her complaint. We affirm because Ms. Pintagro failed to establish that a

genuine issue of material fact exists regarding whether she engaged in a protected activity and

because the trial court exercised proper discretion when it denied her motion to amend her

complaint.

BACKGROUND

{¶2} The Township hired Ms. Pintagro in 1989 to work part-time as the trustees’

administrative assistant. For years she served the Township with distinction. In the fall of 2007,

Township voters elected a new fiscal officer, Scott Gale. Mr. Gale, who had previously taught

college classes, hired one of his former students, John Gersper, as an intern. Mr. Gersper began

working for Mr. Gale in April 2008.

{¶3} According to Ms. Pintagro, Mr. Gersper began acting oddly toward her as soon as

he started working for Mr. Gale. She alleged that he would come into her office uninvited or

hover around her door. He appeared to keep her under surveillance, intruded into her

conversations, and eavesdropped on her. After a couple of months of this behavior, Ms. Pintagro

wrote to the trustees, explained the situation, and told them that Mr. Gersper’s “actions make me

feel uncomfortable and concerned for my safety.”

{¶4} Ms. Pintagro testified that the trustees told her that they would take care of things,

and suggested that she keep the door to her office closed for the time being. According to Ms. 3

Pintagro, that was not possible because her office was small and did not have working heat or air

conditioning. She testified that one of the trustees, James Hunt, told her that he had instructed

Mr. Gersper to stay away from her, but the very next day Mr. Gersper appeared to deliberately

walk by her several times. She said that Mr. Gersper also undermined her authority by setting up

a computer that she had hired an outside contractor to install.

{¶5} According to Ms. Pintagro, the computer incident led to an exchange between Mr.

Gersper and her in the Township parking lot in front of trustee Rose Mary Snell. During the

exchange, Mr. Gersper allegedly told Ms. Snell that Ms. Pintagro had been making fun of Ms.

Snell’s memory. According to Ms. Pintagro, the only conversation that he could have been

talking about was one that she had with Mr. Hunt in which it came up that Ms. Snell had

forgotten the date of a meeting. According to Ms. Pintagro, that led to them “laughing about the

fact that we don’t remember things like we used to.” Ms. Pintagro noted that Mr. Gersper’s out-

of-context remark was further evidence of his eavesdropping.

{¶6} After the incident in the parking lot, the trustees met with Ms. Pintagro about her

concerns. She told them that she did not want to work when Mr. Gersper would be at the office,

and they said they would talk to Mr. Gale about Mr. Gersper’s schedule. Ms. Pintagro

completed the workweek and hoped that the trustees would have a solution in place by the

beginning of the next week.

{¶7} One of the trustees spoke to Mr. Gale, but Mr. Gale was not receptive to changing

Mr. Gersper’s schedule because he wanted Mr. Gersper to be available whenever he needed him.

Accordingly, when Ms. Pintagro came into work the following Monday, she learned that Mr.

Gersper would still be in that day. Rather than work at the same time as Mr. Gersper, Ms.

Pintagro told the trustees that she was going to use her vacation time until they figured 4

something out. The trustees met a few days later and determined that it was impossible to keep

Ms. Pintagro’s schedule separate from Mr. Gersper’s. According to the trustees, Township

meetings are held on Mondays. On those days, Mr. Gale needed Mr. Gersper to be in the office

to get things ready for the meeting and they needed Ms. Pintagro to be in the office to get things

ready for them. They, therefore, determined that Ms. Pintagro’s only options were to resign or

be terminated.

{¶8} The trustees had their lawyer, Jeffrey Snell, deliver the news to Ms. Pintagro.

After learning that she would still be paid for her unused vacation time, Ms. Pintagro chose to

resign.

{¶9} Ms. Pintagro sued the Township, the trustees, and Mr. Snell for a hostile work

environment, retaliation, wrongful termination, tortious interference with employment relations,

age discrimination, violation of the public records act, and civil conspiracy. The trial court

granted summary judgment to the Township and the trustees on her hostile work environment

claim because it determined that she did not present any evidence that she had been treated

differently because of her age or sex; on her retaliation claim because it determined that she had

not engaged in a protected activity; on her wrongful termination claim because it determined that

the claim was identical to her hostile work environment and retaliation claims; on her tortious

interference claim because it determined that such claims do not apply to an employee’s

supervisor or employer; on her age discrimination claim because the Township had replaced her

with someone of similar age; on her violation of public records claim because she had not filed a

mandamus action; and on her civil conspiracy claim because it was a derivative claim and her

other claims were without merit. It also denied the motion to amend the complaint that Ms.

Pintagro had filed in September 2010 because of the timing of the motion and its determination 5

that the amendment would prejudice the defendants. Ms. Pintagro has appealed, assigning two

errors.

RETALIATION

{¶10} Ms. Pintagro’s first assignment of error is that the trial court incorrectly granted

summary judgment to the Township and the trustees regarding her claim that the trustees

retaliated against her for reporting Mr. Gersper’s workplace harassment. She has argued that,

even though Mr. Gersper’s motivations are unknown, it did not excuse the Township from

investigating her complaint instead of terminating her. In reviewing a ruling on a motion for

summary judgment, this Court applies the same standard that the trial court is required to apply

in the first instance: whether there are any genuine issues of material fact and whether the

moving party is entitled to judgment as a matter of law. Parenti v. Goodyear Tire & Rubber Co.,

66 Ohio App. 3d 826, 829 (1990).

{¶11} Under Section 4112.02(I) of the Ohio Revised Code, it is “an unlawful

discriminatory practice . . . [f]or any person to discriminate in any manner against any other

person because that person has opposed any unlawful discriminatory practice defined in this

section . . . .” “To establish a case of retaliation, a claimant must prove that (1) she engaged in a

protected activity, (2) the defending party was aware that the claimant had engaged in that

activity, (3) the defending party took an adverse employment action against the employee, and

(4) there is a causal connection between the protected activity and adverse action.” Greer-

Burger v. Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442, at ¶ 13. “If a complainant establishes a

prima facie case, the burden then shifts to the employer to ‘articulate some legitimate,

nondiscriminatory reason’ for its actions.” Id. at ¶ 14 (quoting McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973)). “If the employer satisfies this burden, the burden shifts back 6

to the complainant to demonstrate ‘that the proffered reason was not the true reason for the

employment decision.’” Id. (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256

(1981)).

{¶12} The trial court denied Ms. Pintagro’s retaliation claim because it determined that

she had not opposed an unlawful discriminatory practice when she told the trustees about Mr.

Gersper’s conduct. Specifically, she did not allege that Mr. Gersper had harassed her because of

her age or sex. Ms. Pintagro has argued that it is only because the Township failed to investigate

her allegations that the reasons for Mr. Gersper’s actions remain unknown.

{¶13} It was Ms. Pintagro’s burden under Section 4112.02(I) to establish that she

engaged in a protected activity, that is, to demonstrate that she “opposed an[ ] unlawful

discriminatory practice” such as harassment because of her “race, color, religion, sex, military

status, national origin, disability, age, or ancestry[.]” R.C. 4112.01(A)(8) (defining unlawful

discriminatory practice to include any act prohibited under Section 4112.02); 4112.02(A), (I);

Greer-Burger v. Temesi, 116 Ohio St. 3d 324, 2007-Ohio-6442, at ¶13. In its motion for

summary judgment, the Township noted that Ms. Pintagro did not assert in her affidavit or at her

deposition that Mr. Gersper’s allegedly harassing conduct was sexist or ageist in nature or that it

was directed at her because of her age, sex, or some other protected status. Ms. Pintagro also has

not presented any authority for her argument that a court should infer discriminatory intent when

an employer fails to investigate a claim of workplace harassment. She also has not persuaded

this Court to adopt her argument in the first instance. Even assuming that Mr. Gersper’s actions

constituted harassment, it is as likely that his conduct was motivated by a personality conflict or

other non-discriminatory reasons as it is that it was motivated by prejudice. See Sutton v. Tomco 7

Machining Inc., 129 Ohio St. 3d 153, 2011-Ohio-2723, ¶ 10 (“[N]o presumption of retaliation

arises from the fact that an employee is discharged soon after [a workplace] injury.”).

{¶14} Ms. Pintagro has also argued that a report of workplace harassment should be

recognized as a legally protected activity no matter what the reason for the harassment. Her

argument is not supported by Section 4112.02(I) of the Ohio Revised Code, which only protects

an employee from retaliation for “oppos[ing] [an] unlawful discriminatory practice.”

{¶15} The Ohio Supreme Court has recognized exceptions to the employment at-will

doctrine only if an employer’s conduct has violated “[c]lear public policy.” Collins v. Rizkana,

73 Ohio St. 3d 65, 69 (1995) (quoting Painter v. Graley, 70 Ohio St. 3d 377, paragraph three of

the syllabus (1994)). According to the Supreme Court, whether conduct is prohibited by public

policy must be discerned from “the Constitutions of Ohio and the United States, administrative

rules and regulations, and the common law.” Id. (quoting Painter, 70 Ohio St. 377, at paragraph

three of the syllabus); see Painter, 70 Ohio St. 3d at 384 (“[A]n exception to the traditional

doctrine of employment-at-will should be recognized only where the public policy alleged to

have been violated is of equally serious import as the violation of a statute.”).

{¶16} Ms. Pintagro has not directed this court to any constitutional, statutory,

administrative, or common law authority that suggests that an employer may not terminate an

employee for complaining about her fellow employees when her complaints do not arise from

discriminatory conduct by the other employees or from the fact that the other employees have

violated a state or federal law. R.C. 4112.02(I); 4113.52(B). We, therefore, decline to expand

the public policy codified by the General Assembly in Chapter 4112 of the Ohio Revised Code,

which would, in effect, create new public policy. See Dohme v. Eurand Am. Inc., 130 Ohio St.

3d 168, 2011-Ohio-4609, ¶ 24-25 (concluding that employee’s general reference to workplace 8

safety was insufficient to establish that his discharge was in contravention of a clear public

policy); Painter v. Graley, 70 Ohio St. 3d 377, 385 (1994) (concluding that there was not clear

public policy in support of allowing public employees to become candidates for public office);

Gianinni-Baur v. Schwab Retirement Plan Servs., 9th Dist. No. 25172, 2010-Ohio-6453, at ¶ 28

(concluding that there was no state-level prohibition of discrimination on the basis of sexual

orientation).

{¶17} There is no evidence that Ms. Pintagro engaged in a protected activity.

Accordingly, the trial court correctly concluded that the Township and the trustees were entitled

to summary judgment on her retaliation claim. Ms. Pintagro’s first assignment of error is

overruled.

MOTION TO AMEND COMPLAINT

{¶18} Ms. Pintagro’s second assignment of error is that the trial court exercised

improper discretion when it denied her motion to amend her complaint to add a claim that the

trustees violated Ohio’s Open Meeting Law. According to her, the trustees maneuvered to

wrongfully terminate her and hid their unlawful conduct in deliberately misleading meeting

minutes. She has argued that she could not have known that the minutes were misleading until

she took the depositions of the trustees in June 2010.

{¶19} In December 2008, Ms. Pintagro obtained the minutes of the trustees’ June 2008

meetings. The minutes of each of the meetings were recorded on the same page. According to

those minutes, the trustees held a special meeting on June 17, 2008. At the meeting, they

adjourned to an executive session to consider the issues that Ms. Pintagro had raised. At some

point, Ms. Snell moved to “recess the executive session until a later date” and moved to

reconvene the meeting on June 23. When the trustees reconvened, Ms. Snell immediately moved 9

to adjourn to an executive session. She later moved to recess the meeting because no decisions

had been made and moved to reconvene on June 30. At the June 30 meeting, Ms. Snell again

moved to adjourn to an executive session. The trustees eventually decided at that meeting to

permit Mr. Snell “to discuss and notify an employee regarding employment concerns.”

{¶20} The minutes appear to indicate that it was at the June 23 meeting that Ms. Snell

moved to reconvene on June 30. According to Ms. Pintagro, Ms. Snell’s deposition testimony,

however, suggests that the trustees did not schedule the June 30 meeting on June 23. She has

argued that Ms. Snell’s testimony indicates that the June 30 meeting actually did not get

scheduled until June 29, which, she contends, was a violation of the state’s Open Meetings law.

See R.C. 121.22(F).

{¶21} Ms. Pintagro filed her complaint in July 2009. The trial court scheduled trial for

October 26, 2010, and set July 16, 2010, as the deadline for completion of discovery. Ms.

Pintagro took Ms. Snell’s deposition on June 16, 2010. She did not move to amend her

complaint, however, until September 28, 2010, which was more than a month after the

defendants had moved for summary judgment and less than a month before the date set for trial.

The defendants opposed the motion, arguing that “they would be prejudiced by delaying this

matter . . . , particularly when [Ms. Pintagro] was in possession of the meeting minutes since

December 2008 . . . . Further, addition of the claim would delay trial and entitle the parties to

another round of dispositive motions as the proposed claim is likely outside of the statute of

limitations.” The trial court denied Ms. Pintagro’s motion to amend because it found that the

defendants “would be prejudiced by further delay and th[e] amendment of pleadings at this late

stage would be improper.” 10

{¶22} “Although the grant or denial of leave to amend a pleading is discretionary, where

it is possible that the plaintiff, by an amended complaint, may set forth a claim upon which relief

can be granted, and it is tendered timely and in good faith and no reason is apparent or disclosed

for denying leave, the denial of leave to file such amended complaint is an abuse of discretion.”

Peterson v. Teodosio, 34 Ohio St. 2d 161, 175 (1973). On the other hand, “motions to amend

pleadings . . . should be refused if there is a showing of bad faith, undue delay, or undue

prejudice to the opposing party.” Turner v. Cent. Local School Dist., 85 Ohio St. 3d 95, 99

(1999). This Court has recognized that “an attempt to amend a complaint following the filing of

a motion for summary judgment raises the spectre of prejudice.” Cunningham v. Cunningham,

9th Dist. No. 01CA007938, 2002-Ohio-2647, at ¶ 16 (quoting Johnson v. Norman Malone &

Assoc. Inc., 9th Dist. No. 14142, 1989 WL 154763 at *5 (Dec. 20, 1989)). It has also cautioned

that a plaintiff should not be allowed to sit by and then “bolster up their pleadings in answer to a

motion for summary judgment.” Id. (quoting Johnson, 1989 WL 154763 at *5).

{¶23} Ms. Pintagro moved to amend her complaint fourteen months after she filed her

action, three months after she learned about the potential claim, two months after discovery

closed, six weeks after the defendants moved for summary judgment, and only four weeks before

trial. While Ms. Snell’s testimony was ambiguous regarding when the trustees scheduled the

June 30 meeting, she did not definitely state that they set the meeting on June 29, meaning that

the parties would have needed to conduct additional discovery to determine when the meeting

was scheduled. It would also have required the court to allow the parties to file a new round of

dispositive motions and delayed the trial date, which had been set a year in advance. We,

therefore, conclude that the trial court exercised proper discretion when it denied Ms. Pintagro’s

motion to amend. Ms. Pintagro’s second assignment of error is overruled. 11

CONCLUSION

{¶24} Because Ms. Pintagro did not present any evidence that she opposed an unlawful

discriminatory practice, the trial court correctly granted summary judgment to the Township and

trustees on her retaliation claim. The trial court exercised proper discretion when it refused to let

her amend her complaint to add a claim under Section 121.22(F) of the Ohio Revised Code. The

judgment of the Summit County Common Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CLAIR E. DICKINSON FOR THE COURT 12

CANNON, J. TRAPP, J. CONCUR.

(Cannon, J. and Trapp, J., of the Eleventh District Court of Appeals, sitting by assignment pursuant to §6(C), Article IV, Constitution.)

APPEARANCES:

ROBERT D. KEHOE and JOSEPH J. JERSE, Attorneys at Law, for Appellant.

JONATHAN W. PHILIPP, Attorney at Law, for Appellant.

AMY S. THOMAS, JOHN T. MCLANDRICH, TODD M. RASKIN and FRANK H. SCIALDONE, Attorneys at Law, for Appellee.