Horsley v. Burton ( 2010 )

[Cite as Horsley v. Burton, 2010-Ohio-6315.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
DONALD HORSLEY, :
:
Plaintiff-Appellant, : Case No: 10CA3356
:
v. :
: DECISION AND
JENNIFER M. BURTON, et al., : JUDGMENT ENTRY
:
Defendants-Appellees. : File-stamped date: 12-10-10
APPEARANCES:
James H. Banks, Dublin, Ohio, for Appellant.
Jacklyn J. Ford and Peter A. Lusenhop, Vorys, Sater, Seymour and Pease, LLP,
Columbus, Ohio, for Appellees.
Kline, J.:
{¶1} Donald Horsley (hereinafter “Horsley”) appeals the judgment of the Scioto
County Court of Common Pleas, which granted summary judgment in favor of Jennifer
M. Burton (n/k/a Jennifer Meade, and hereinafter “Meade”) and Scioto Residential
Services, Inc., (hereinafter “Scioto Residential”). (When discussing the defendants-
appellees collectively, we will refer to them as “Scioto Residential.”). At the trial court
level, Horsley alleged that Scioto Residential engaged in several impermissible
employment practices. And on appeal, he contends that the trial court erred in granting
summary judgment for Scioto Residential on Horsley’s age discrimination, gender
discrimination, and whistleblower claims. We disagree. Instead, we find (1) that there
are no genuine issues of material fact as to any of Horsley’s claims; (2) that Scioto
Scioto App. No. 10CA3356 2
Residential is entitled to judgment as a matter of law on all of Horsley’s claims; and (3)
that reasonable minds can come to just one conclusion as to all of Horsley’s claims, and
that conclusion is adverse to Horsley. Accordingly, we affirm the judgment of the trial
court.
I.
{¶2} Scioto Residential maintains fourteen homes that provide residential care for
individuals with severe developmental disabilities, and Meade is Scioto Residential’s
Executive Director. On September 22, 2006, Scioto Residential hired Horsley as a part-
time support professional. In that position, Horsley assisted Scioto Residential’s
residents with their daily needs. When he started at Scioto Residential, Horsley was
sixty-five years old, earned $7.25 per hour, and worked between twenty-five-to-thirty
hours per week. Additionally, for the first nine months of his employment, Horsley
worked mainly at Scioto Residential’s Robinson home (hereinafter “Robinson”).
{¶3} On June 29, 2007, one of Horsley’s co-workers apparently informed Scioto
Residential that Horsley had been copying patient records. And on July 6, 2007, a
supervisor at Scioto Residential met with Horsley to discuss the alleged copying
incident. The supervisor informed Horsley that copying patient records was forbidden,
but Horsley denied the copying allegations.
{¶4} In July 2007, Scioto Residential transferred Horsley to the Eleventh Street
home (hereinafter “Eleventh Street”). Horsley’s position, duties, and rate of pay did not
change at Eleventh Street, and, after the transfer, he worked the same amount of hours
per week.
Scioto App. No. 10CA3356 3
{¶5} Sometime later, Scioto Residential transferred Horsley from Eleventh Street
to the McDermott home (hereinafter “McDermott”). Horsley’s position, duties, and rate
of pay did not change at McDermott, but, after this transfer, he apparently worked fewer
hours per week.
{¶6} In August 2007, Scioto Residential had two openings for the Support
Manager position. Horsley applied for these openings, but Scioto Residential gave the
promotions to a younger female, Amie Wolfe (hereinafter “Wolfe”), and a younger male,
Nick Conley (hereinafter “Conley”). Scioto Residential claimed that Wolfe and Conley
were better qualified for the Support Manager position.
{¶7} In or around August 2007, Horsley started making complaints about Scioto
Residential to various state officials. The Ohio Department of Mental Retardation and
Developmental Disabilities investigated these complaints, and, apparently, “[l]icensure
violations were found during some visits that resulted in the issuance of deficiencies.”
October 29, 2007 Letter to Donald Horsley.
{¶8} In September 2007, two Scioto Residential employees saw Horsley copying
patient records. Robert Luongo (hereinafter “Luongo”) claims that he “personally
witnessed Don Horsley copying resident medical records and removing those records
from the McDermott home.” Affidavit of Robert Luongo at ¶3. And Candace Hackworth
(hereinafter “Hackworth”) claims that, on September 15, 2007, she “personally
witnessed Don Horsley copying resident medical records. * * * On September 16, 2007,
[she] asked Mr. Horsley what he did with the copies of the records which he copied, and
he told [Hackworth] that he took them home.” Affidavit of Candace Hackworth at ¶3-4.
Scioto App. No. 10CA3356 4
{¶9} On September 20, 2007, Scioto Residential supervisors met with Horsley to
discuss the copying and removal of patient records. Horsley denied the allegations, but
Scioto Residential suspended him pending an investigation into the matter. Then, on
February 14, 2008, Scioto Residential informed Horsley that he was being terminated
for the September 2007 copying-and-removal incident.
{¶10} On March 5, 2008, Horsley filed his complaint in the present case. Horsley
alleged that Scioto Residential (1) engaged in age discrimination, (2) engaged in gender
discrimination, and (3) retaliated against Horsley for reporting violations to the state.
Eventually, the trial court granted Scioto Residential’s motion for summary judgment as
to all of Horsley’s claims.
{¶11} Horsley appeals and asserts the following assignment of error: “THE TRIAL
COURT ERRED IN GRANTING SUMMARY JUDGMENT AND DISMISSING ALL OF
PLAINTIFF-APPELLANT’S CLAIMS, SUCH THAT THE JUDGMENT MUST BE
REVERSED.”
II.
{¶12} In his sole assignment of error, Horsley contends that the trial court erred in
granting summary judgment to Scioto Residential on all of his employment-related
claims. “Because this case was decided upon summary judgment, we review this
matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko, 106
Ohio St. 3d 185, 2005-Ohio-4559, at ¶8. Summary judgment is appropriate only when
the following have been established: (1) there is no genuine issue as to any material
fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable
minds can come to only one conclusion, and that conclusion is adverse to the
Scioto App. No. 10CA3356 5
nonmoving party. Civ.R. 56(C). See, also, Bostic v. Connor (1988), 37 Ohio St. 3d 144,
146; Grimes v. Grimes, Washington App. No. 08CA35, 2009-Ohio-3126, at ¶14. In
ruling on a motion for summary judgment, the court must construe the record and all
inferences that arise from it in the opposing party’s favor. Doe v. First United Methodist
Church, 68 Ohio St. 3d 531, 535, 1994-Ohio-531, superseded by statute on other
grounds.
{¶13} The burden of showing that no genuine issue of material fact exists falls upon
the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St. 3d 280, 294,
1996-Ohio-107. However, once the movant supports his or her motion with appropriate
evidentiary materials, the nonmoving party “may not rest upon the mere allegations or
denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise
provided in this rule, must set forth specific facts showing that there is a genuine issue
for trial.” Civ.R. 56(E). See, also, Dresher at 294-295; Grimes at ¶15.
{¶14} “In reviewing whether an entry of summary judgment is appropriate, an
appellate court must independently review the record and the inferences that can be
drawn from it to determine if the opposing party can possibly prevail.” Grimes at ¶16
(citation omitted). “Accordingly, we afford no deference to the trial court’s decision in
answering that legal question.” Morehead v. Conley (1991), 75 Ohio App. 3d 409, 412.
See, also, Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App. 3d 806, 809;
Grimes at ¶16.
{¶15} Here, we must examine whether the trial court correctly granted summary
judgment on Horsley’s age discrimination claim, his gender discrimination claim, and his
retaliation claim (a/k/a his “whistleblower” claim).
Scioto App. No. 10CA3356 6
A. The McDonnell Douglas Test
{¶16} In relevant part, R.C. 4112.02(A) provides that “[i]t shall be an unlawful
discriminatory practice * * * [f]or any employer, because of the * * * sex * * * [or] age * * *
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.”
Furthermore, “[n]o employer shall discriminate in any job opening against any applicant
or discharge without just cause any employee aged forty or older who is physically able
to perform the duties and otherwise meets the established requirements of the job and
laws pertaining to the relationship between employer and employee.” R.C. 4112.14(A).
{¶17} “Courts have recognized that the question facing triers of fact in discrimination
cases is both sensitive and difficult, and [t]here will seldom be ‘eyewitness’ testimony as
to the employer’s mental processes. * * * Thus, when analyzing []discrimination claims
that rely primarily upon circumstantial evidence, Ohio courts employ the framework
articulated in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792.” Ohio Univ. v.
Ohio Civ. Rights Comm., 175 Ohio App. 3d 414, 2008-Ohio-1034, at ¶67 (internal
citations omitted). Therefore, Horsley must first establish a prima facie case of
discrimination. Id.; McDonnell Douglas at 802. “To establish a prima facie case * * *,
[Horsley] must show that 1) [he] is a member of the protected class; 2) [he] was subject
to an adverse employment action; 3) [he] is qualified for the position; and 4) [he] was
replaced by, or [his] discharge permitted the retention of, a person of comparable
qualifications outside the protected class.” Goodyear v. Waco Holdings, Inc., Cuyahoga
App. No. 91432, 2009-Ohio-619, at ¶30, citing Mauzy v. Kelly Servs., Inc., 75 Ohio
Scioto App. No. 10CA3356 7
St.3d 578, 582, 1996-Ohio-265. See, also, McDonnell Douglas at 802; Coryell v. Bank
One Trust Co. N.A., 101 Ohio St. 3d 175, 2004-Ohio-723, at paragraph one of the
syllabus (stating that, for age discrimination cases, a plaintiff must show that he or she
“was replaced by, or the discharge permitted the retention of, a person of substantially
younger age”). “The plaintiff has the burden of establishing a prima facie case of
discrimination by a preponderance of the evidence.” Mosley v. Miami Shores of
Moraine, L.L.C., Montgomery App. No. 21587, 2007-Ohio-2138, at ¶9, citing Omobien
v. Ohio Civ. Rights Comm. (1993), 89 Ohio App. 3d 100, 103-104; see, also, Basinger v.
Pilarczyk (2000), 137 Ohio App. 3d 325, 328.
{¶18} “Once an employee establishes a prima facie case of discrimination, the
burden shifts to the employer to provide some legitimate, nondiscriminatory reason for
the action taken. Kohmescher v. Kroger Co. (1991), 61 Ohio St. 3d 501, 503[.] If the
employer establishes a nondiscriminatory reason, the employee then bears the burden
of showing the employer’s proffered reason was a pretext for impermissible
discrimination. Cruz v. South Dayton Urological Associates, Inc. (1997), 121 Ohio
App.3d 655, 659[.]” Steadman v. Sterilite Corp., Stark App. No. 2009 CA 00280, 2010-
Ohio-3391, at ¶71. “To make a submissible case on the credibility of his employer’s
explanation, [Horsley] is ‘required to show by a preponderance of the evidence either 1)
that the proffered reasons had no basis in fact; 2) that the proffered reasons did not
actually motivate his discharge; or 3) that they were insufficient to motivate discharge.’”
Tinker v. Sears, Roebuck & Co. (C.A.6, 1997), 127 F.3d 519, 523, quoting Manzer v.
Diamond Shamrock Chems. Co. (C.A.6, 1994), 29 F.3d 1078, 1084, which was
overruled on other grounds by Geiger v. Tower Automotive (C.A.6, 2009), 579 F.3d 614.
Scioto App. No. 10CA3356 8
See, also, Pattison v. W.W. Grainger, Inc., Cuyahoga App. No. 93648, 2010-Ohio-2484,
at ¶33.
B. Horsley’s Age Discrimination Claim
{¶19} As to Horsley’s age-discrimination claim, there are four potential adverse
employment actions that we must analyze under the McDonnell Douglas framework.
These potential adverse employment actions are: (1) the transfer from Robinson to
Eleventh Street; (2) the transfer from Eleventh Street to McDermott; (3) Wolfe and
Conley receiving the Support Manager position instead of Horsley; and (4) Horsley’s
termination. And here, we find that the trial court correctly granted summary judgment
to Scioto Residential as to all four potential adverse employment actions.
1. The Transfer From Robinson to Eleventh Street
{¶20} In relation to the transfer from Robinson to Eleventh Street, we find that
Horsley did not establish a prima facie case of age discrimination. Here, Horsley failed
to demonstrate that the transfer from Robinson to Eleventh Street constituted an
adverse employment action. “An ‘adverse employment action’ is conduct that results in
a materially adverse change in the terms and conditions of employment.” Lookabaugh
v. Spears, Clark App. No. 2007 CA 16, 2008-Ohio-1610, at ¶16, citing Keeton v. Flying
J, Inc. (C.A.6, 2005), 429 F.3d 259, 262-263; Means v. Cuyahoga Cty. Dept. of Justice
Affairs, Cuyahoga App. No. 87303, 2006-Ohio-4123, at ¶15. Moreover, “[a] transfer
without a change in benefits, salary, title, or work hours is usually not an adverse
employment action.” Lookabaugh at ¶15, citing Policastro v. Northwest Airlines, Inc.
(C.A.6, 2002), 297 F.3d 535, 539. In this regard, Meade testified that Scioto Residential
transferred Horsley to Eleventh Street “at the same level of employment, at the same
Scioto App. No. 10CA3356 9
rate of pay, and the same hours.” February 5, 2010 Affidavit of Jennifer Meade at ¶6.
Horsley’s own testimony confirms Meade’s statement. First, Horsley testified that he
had the same position and the same duties at Eleventh Street. And second, Horsley
testified that he suffered no cut in pay or hours.
{¶21} “Q When you moved to 11th Street, you didn’t work any less hours?
{¶22} “A No.
{¶23} “Q And there was no reduce in pay?
{¶24} “A No.” Deposition of Donald Larry Horsley at 35.
{¶25} Therefore, because there is no genuine issue of material fact regarding an
adverse employment action, Horsley has failed to make a prima facie case of age
discrimination in relation to the transfer from Robinson to Eleventh Street.
2. The Transfer From Eleventh Street to McDermott
{¶26} We will assume, without deciding, that Horsley has established a prima facie
case of age discrimination in relation to the transfer from Eleventh Street to McDermott.
Here, Horsley is a member of the protected class; he testified that his hours were cut at
McDermott; Horsley was apparently qualified for the position at either Eleventh Street or
McDermott; and he testified that younger employees took his position at Eleventh
Street. Therefore, we must examine Scioto Residential’s legitimate, nondiscriminatory
reason for the transfer.
{¶27} Scioto Residential claims that it transferred Horsley to McDermott because of
issues between Horsley and a female resident. As Meade testified in her affidavit, “Due
to encounters with a female [Scioto Residential] resident, NH, at the Eleventh Street
home, [Scioto Residential] transferred Mr. Horsley to the McDermott home, a facility
Scioto App. No. 10CA3356 10
with all male residents. If difficulties are presented between staff and a patient, [Scioto
Residential] endeavors to transfer employees at the facility, rather than the resident.
[Scioto Residential] does this because the [Scioto Residential] homes serve as the
permanent homes of the [Scioto Residential] residents and it can be traumatic for the
residents to be moved to a new home. * * *.” February 5, 2010 Affidavit of Jennifer
Meade at ¶7.
{¶28} Horsley has offered no evidence to rebut Scioto Residential’s proffered
reason for the transfer to McDermott. Moreover, Horsley misunderstands his burden for
showing pretext. During his deposition, Horsley testified that he did not know the
reason for his transfer to McDermott.
{¶29} “Q And you moved from 11th to McDermott, but you don’t know why?
{¶30} “A Correct.
{¶31} “Q Okay. You have a belief as to the reason why you were moved from 11th
to McDermott?
{¶32} “A No.
{¶33} “Q No idea?
{¶34} “A (The witness nodded negatively.).” Deposition of Donald Larry Horsley at
68-69.
{¶35} Here, instead of presenting evidence of pretext, Horsley claims that his
“answer that he did not know the reason [for the transfer] confirms that there was no
discernible reason, absent discrimination or retaliation.” Reply Brief of Plaintiff-
Appellant Donald Horsley at 1. Horsley’s statement, however, is simply not accurate.
At this stage, Horsley “bears the burden of showing that the proffered reasons were a
Scioto App. No. 10CA3356 11
pretext for age discrimination.” Walter v. ADT Security Systems, Inc., Franklin App. No.
06AP-115, 2007-Ohio-3324, at ¶23, citing McDonnell Douglas. And to carry his burden,
Horsley must “point[] to evidence that proves that [Scioto Residential’s] reasons were a
pretext designed to mask age discrimination.” Miller v. Potash Corp. of Saskatchewan,
Inc., Allen App. No. 1-09-58, 2010-Ohio-4291, at ¶24 (emphasis added). Horsley
cannot satisfy his burden by simply claiming that “he did not know the reason” for his
transfer. This is not “evidence” of pretext. If it was, any plaintiff could defeat summary
judgment by claiming that he or she did not know the reason for an employment
decision.
{¶36} Therefore, because he presented no evidence of pretext, Horsley has not
demonstrated a genuine issue of material fact regarding the legitimate, non-
discriminatory reason for Horsley’s transfer to McDermott.
3. The Support Manager Position
{¶37} Again, we will assume, without deciding, that Horsley has established a prima
facie case of age discrimination in relation to the Support Manager position. Here,
Horsley is in the protected class; he did not get the promotion to Support Manager;
Horsley claims to have been qualified for the Support Manager position; and Scioto
Residential promoted two younger employees instead of Horsley. Therefore, we must
examine Scioto Residential’s legitimate, non-discriminatory reasons for promoting the
two younger employees instead of Horsley.
{¶38} Scioto Residential claims that it promoted the two younger employees
because they were better qualified for the Support Manager position. As Meade
testified in her affidavit, “In August of 2009, [Scioto Residential] filled two management
Scioto App. No. 10CA3356 12
positions at [Scioto Residential], known as Support Manager positions. [Scioto
Residential] considered multiple applicants for these positions. [Scioto Residential]
gave these positions to Amie Wolfe and to Nick Conley. In [Scioto Residential’s]
considered judgment, Ms. Wolfe and Mr. Conley were the best qualified applicants for
these positions. Both Ms. Wolfe and Mr. Conley had more experience than Mr. Horsley.
Both Ms. Wolfe and Mr. Conley, in [Scioto Residential’s] opinion, demonstrated, among
other attributes, better abilities to work with fellow employees and [Scioto Residential]
residents than did Mr. Horsley. Both also demonstrated a better ability to handle
stressful situations than did Mr. Horsley. The abilities to work well with other employees
and residents, and to handle stressful situations, are requirements for the Support
Manager position.” April 12, 2010 Affidavit of Jennifer Meade at ¶4.
{¶39} Again, Horsley did not present sufficient evidence to rebut Scioto
Residential’s legitimate, non-discriminatory reasons for promoting Wolfe and Conley.
Horsley’s own deposition testimony demonstrates this lack of evidence.
{¶40} “A * * * Also, they had two jobs opened up for – like supervisors going from
home to home at night, and I requested to be one of those. And they employed young
employees.
{¶41} “Q Okay. And you don’t have any knowledge of the particular qualifications
of those employees that got those jobs?
{¶42} “A No, sir.
{¶43} “Q And you don’t have any knowledge of the thought process or analysis that
[Scioto Residential] made in deciding to give those jobs to those other employees?
{¶44} “A No, sir.” Deposition of Donald Larry Horsley at 70-71.
Scioto App. No. 10CA3356 13
{¶45} By way of affidavit, and despite his earlier testimony, Horsley later claimed
that Conley had less seniority than he did. But here, Horsley offered no evidentiary
support for that statement. And “[w]hen the moving party puts forth evidence tending to
show that there are no genuine issues of material fact, the nonmoving party may not
avoid summary judgment solely by submitting a self-serving affidavit containing no more
than bald contradictions of the evidence offered by the moving party. To conclude
otherwise would enable the nonmoving party to avoid summary judgment in every case,
crippling the use of Civ.R. 56 as a means to facilitate the early assessment of the merits
of claims, pre-trial dismissal of meritless claims, and defining and narrowing issues for
trial.” Mosley v. Miami Shores of Moraine, L.L.C., Montgomery App. No. 21587, 2007-
Ohio-2138, at ¶13 (emphasis sic) (internal quotation omitted). See, also, McPherson v.
Goodyear Tire & Rubber Co., Summit App. No. 21499, 2003-Ohio-7190, at ¶36; Porter
v. Saez, Franklin App. No. 03AP-1026, 2004-Ohio-2498, at ¶43. As such, Horsley’s
bare assertion, standing alone, does not create a genuine issue of material fact that
promoting Conley was a pretext for age discrimination.
{¶46} Therefore, because he did not present sufficient evidence of pretext, Horsley
has not demonstrated a genuine issue of material fact regarding the legitimate, non-
discriminatory reasons for promoting younger employees to the Support Manager
position.
4. Horsley’s Termination
{¶47} Once more, we will assume, without deciding, that Horsley established a
prima facie case of age discrimination in relation to his termination. Here, Horsley is in
the protected class; he suffered an adverse employment action; and Horsley appears to
Scioto App. No. 10CA3356 14
be qualified for his former position at Scioto Residential. There is some dispute as to
whether Horsley was replaced by a younger employee. But we will assume, without
deciding, that he was. Therefore, we must examine Scioto Residential’s legitimate,
non-discriminatory reasons for terminating Horsley.
{¶48} Scioto Residential claims that it terminated Horsley because he “was copying
and removing from [Scioto Residential] confidential patient records. * * * Copying and/or
removing patient records is a * * * violation of [Scioto Residential] rules and is grounds
for immediate suspension and termination.” February 5, 2010 Affidavit of Jennifer
Meade at ¶9. In July 2007, Horsley had been warned about copying patient medical
records. And despite that warning, two Scioto Residential employees witnessed
Horsley copying and/or removing patient medical records in September 2007. As such,
Scioto Residential claims that it terminated Horsley “for reason of the alleged copying
and removal of [Scioto Residential] patient records.” February 5, 2010 Affidavit of
Jennifer Meade at ¶11.
{¶49} Here, we find that Horsley has not raised a genuine issue of material fact
regarding his termination. Horsley has not presented sufficient evidence to demonstrate
any of the following: (1) that the alleged copying-and-removal incident has no basis in
fact; (2) that the alleged copying-and-removal incident did not actually motivate his
discharge; or (3) that the alleged copying-and-removal incident was insufficient to
motivate his termination.
a. No Basis in Fact
{¶50} Horsley claims that he did not copy or remove patient medical records. And
because of his denial, Horsley claims that he has created a genuine issue of material
Scioto App. No. 10CA3356 15
fact regarding the proffered reason for his termination. That is, Horsley argues that
summary judgment is inappropriate because a dispute exists as to whether the copying-
and-removal incident actually happened. We, however, agree with the United States
Sixth Circuit Court of Appeals, which held that “the plaintiff must allege more than a
dispute over the facts upon which his discharge was based. He must put forth evidence
which demonstrates that the employer did not ‘honestly believe’ in the proffered non-
discriminatory reason for its adverse employment action. See Smith v. Chrysler, 155
F.3d 799, 806-07 ([C.A.6,] 1998) (citing Fischbach v. Dist[.] of Columbia Dept. of
Corrections, 86 F.3d 1180, 1183 ([C.A.D.C.]1996) (‘[I]f the employer made an error too
obvious to be unintentional, perhaps it had an unlawful motive for doing so.’)).
{¶51} “In order to determine whether the defendant had an ‘honest belief’ in the
proffered basis for the adverse employment action, this Court looks to whether the
employer can establish its ‘reasonable reliance’ on the particularized facts that were
before it at the time the decision was made. See Smith, 155 F.3d at 807. * * * If there is
no material dispute that the employer made a ‘reasonably informed and considered
decision’ that demonstrates an ‘honest belief’ in the proffered reason for the adverse
employment action, the case should be dismissed since no reasonable juror could find
that the employer’s adverse employment action was pretextual.” Braithwaite v. Timken
Co. (C.A.6, 2001), 258 F.3d 488, 493-94. See, also, Chen v. Dow Chemical Co. (C.A.6,
2009), 580 F.3d 394, 401 (“When an employer reasonably and honestly relies on
particularized facts in making an employment decision, it is entitled to summary
judgment on pretext even if its conclusion is later shown to be mistaken, foolish, trivial,
Scioto App. No. 10CA3356 16
or baseless.”) (internal quotation omitted); Wylie v. Arnold Transp. Servs., Inc.
(S.D.Ohio 2006), 494 F. Supp. 2d 717, 725-26.
{¶52} Here, the uncontested evidence demonstrates that Scioto Residential made a
reasonably informed and considered decision before terminating Horsley. First, Horsley
had been warned about copying patient records before the September 2007 incident.
Second, Scioto Residential relied on two eyewitnesses who saw Horsley engaged in
prohibited activities. Third, supervisors at Scioto Residential met with Horsley to
discuss the allegations, thereby allowing him the opportunity to respond. And fourth,
Scioto Residential apparently investigated the matter before terminating Horsley.
{¶53} In contrast, Horsley has presented no evidence that Scioto Residential did not
honestly believe in the proffered reason for his termination. Horsley’s own testimony
demonstrates the lack of evidence on this issue.
{¶54} “Q Do you believe that there is another or different reason that you were fired
from [Scioto Residential]?
{¶55} “A Not to my knowledge, no, sir.
{¶56} “Q Do you have any evidence that there was a different reason why you were
fired from [Scioto Residential]?
{¶57} “A No.
{¶58} “Q You merely believe there was a different reason?
{¶59} “A No.
{¶60} “Q. So if I understand your testimony today correctly, you indicate that the
reason that it was offered to you as to why you were terminated was for allegedly
copying patient records; correct? That was the reason offered?
Scioto App. No. 10CA3356 17
{¶61} “A Yes.
{¶62} “Q As you sit here, you are not aware of a different reason that [Scioto
Residential] may have had for terminating you; correct?
{¶63} “A No, sir.
{¶64} “Q You – I asked you even if you believed that there was a different reason,
whatever that reason was, good, bad or indifferent, that you don’t believe that there is a
different reason that they fired you; correct?
{¶65} “A Correct.
{¶66} “Q And as you sit here, you have no evidence that there was a different
reason that they fired you other than their belief that you had copied a patient’s record?
{¶67} “A Correct.” Deposition of Donald Larry Horsley at 67-68 (emphasis added).
{¶68} As his deposition testimony demonstrates, Horsley failed to present any
evidence that Scioto Residential did not honestly believe in the proffered reason for his
termination. Therefore, there is no genuine issue of material fact as to whether Scioto
Residential honestly believed in the copying-and-removal incident.
b. The Actual Motivation for Horsley’s Discharge
{¶69} Here, Horsley has failed to present any evidence that his termination was
motivated by something other than the copying and removal of patient records. As we
noted above, Horsley agreed that he had no evidence of any other reason for his
termination. See, generally, Senu-Oke v. Bd. of Edn. of Dayton City School Dist.,
Montgomery App. No. 20967, 2005-Ohio-5239, at ¶38 (“[M]ere conjecture that an
employer’s explanation is a pretext for intentional discrimination is an insufficient basis
for denial of summary judgment.”), citing Branson v. Price River Coal Co. (C.A.10,
Scioto App. No. 10CA3356 18
1988), 853 F.2d 768, 772. Therefore, Horsley has not established a genuine issue of
material fact as to whether something other than the copying-and-removal incident
actually motivated his discharge.
c. Insufficient to Motivate Horsley’s Termination
{¶70} Horsley argues that, even if he engaged in the copying and removal of patient
records, his actions were insufficient to motivate termination. Instead, Horsley contends
that “the proper penalty * * * would have been a five day suspension, not termination, as
confirmed by the Ohio Bureau of Unemployment Compensation.” Brief of Plaintiff-
Appellant Donald Horsley at 19. Aside from his own affidavit, there is no evidence in
the record to corroborate Horsley’s claim that he should have received a “five-day
suspension.” This is significant because “self-serving affidavits, unsupported and
without corroborating evidentiary materials, are not sufficient to create a genuine issue
of material fact on summary judgment[.]” Camp St. Mary’s Assn. of W. Ohio
Conference of the United Methodist Church, Inc. v. Otterbein Homes, 176 Ohio App. 3d
54, 2008-Ohio-1490, at ¶46, citing Am. Heritage Life Ins. Co. v. Orr (C.A.5, 2002), 294
F.3d 702, 710 (other citations omitted).
{¶71} But even if the Ohio Bureau of Unemployment Compensation did make a five-
day-suspension finding, there is ample evidence that copying and removing patient
records was sufficient motivation for Horsley’s termination. See Abdulnour v. Campbell
Soup Supply Co. (C.A.6, 2007), 502 F.3d 496, 504 (“[S]ummary judgment is appropriate
* * * if the plaintiff ‘only created a weak issue of fact * * *’ and there is ample evidence to
support the employer’s position.”), quoting Reeves v. Sanderson Plumbing Products,
Inc. (2000), 530 U.S. 133, 148. Copying and removing patient records violates at least
Scioto App. No. 10CA3356 19
one Scioto Residential policy and at least two Scioto Residential work rules. More
importantly, copying and removing patient records may violate state law. See R.C.
5123.62(T) (providing that “[t]he rights of persons with mental retardation or a
developmental disability include * * * [t]he right to confidential treatment of all
information in their personal and medical records”). We believe that multiple violations
of company policy and, perhaps, state law are a sufficient cause for discharge. And
especially because Horsley had been warned about copying patient records in the past,
there is ample evidence that the September 2007 copying-and-removal incident was
sufficient motivation for his termination.
{¶72} Accordingly, no genuine issue of material fact exists as to whether the
copying-and-removal incident was sufficient to motivate Horsley’s discharge.
5. Age Discrimination Synopsis
{¶73} In summary, we find that Scioto Residential is entitled to summary judgment
on Horsley’s age discrimination claim. Regarding the transfer from Robinson to
Eleventh Street, Horsley did not establish a prima facie case of age discrimination.
Regarding the transfer from Eleventh Street to McDermott, Horsley presented no
evidence that Scioto Residential’s reason for the transfer was pretextual. Regarding the
promotion to Support Manager, Horsley has not demonstrated a genuine issue of
material fact regarding Scioto Residential’s legitimate, non-discriminatory reasons for
promoting younger employees. And finally, Horsley has not shown by a preponderance
of the evidence that his termination was a pretext for impermissible age discrimination.
{¶74} Therefore, after construing the record and all inferences therefrom in
Horsley’s favor, we find (1) that there is no genuine issue as to any material fact, (2) that
Scioto App. No. 10CA3356 20
Scioto Residential is entitled to judgment as a matter of law on Horsley’s age
discrimination claim, and (3) that reasonable minds can come to just one conclusion,
and that conclusion is adverse to Horsley.
C. Horsley’s Gender Discrimination Claims
{¶75} “Ohio courts have adopted the McDonnell Douglas formula to claims for sex
discrimination brought under R.C. Chapter 4112.” Tack v. PCC Airfoils, Inc., Stark App.
No. 2008CA15, 2008-Ohio-6898, at ¶23, citing Kundtz v. AT & T Solutions, Inc.,
Franklin App. No. 05AP-1045, 2007-Ohio-1462, at ¶46, in turn citing Starner v.
Guardian Indus. (2001), 143 Ohio App. 3d 461, 471. “However, in cases involving
reverse gender discrimination, courts have modified the McDonnell Douglas 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.” Tack at ¶24
(citations omitted). See, also, Bogdas v. Ohio Dept. of Rehab. & Corr., Franklin App.
No. 09AP-6327, 2009-Ohio-6327, at ¶31; Murray v. Thistledown Racing Club, Inc.
(C.A.6, 1985), 770 F.2d 63, 67. Again, Horsley must show a prima facie case of
reverse gender discrimination by a preponderance of the evidence. Harding v. Gray,
(C.A.D.C.1993), 9 F.3d 150, 152; Smith v. City of Dayton (S.D.Ohio 1993), 830 F. Supp.
1066, 1073.
Scioto App. No. 10CA3356 21
{¶76} We find that Horsley has not established a prima facie case of reverse gender
discrimination. Here, Horsley has not presented enough evidence to demonstrate that
Scioto Residential is the unusual employer that discriminates against males. Horsley’s
affidavit contains the only evidence relevant to the unusual-employer issue. Therein,
Horsley states that he is “aware that [Scioto Residential’s] employee base is
approximately 90% female[.]” Affidavit of Plaintiff Donald Horsley at ¶3. Horsley offers
no support for his assertion about Scioto Residential’s workforce, and “bare assertions
simply are not enough to make a prima facie case of discrimination.” Harris v. Greater
Cleveland Regional Transit Auth., Cuyahoga App. No. 89541, 2008-Ohio-676, at ¶16,
citing Lennon v. Cuyahoga Cty. Juvenile Court, Cuyahoga App. No. 86651, 2006-Ohio-
2587, at ¶16-17. See, generally, Sutherland v. Michigan Dept. of Treasury (C.A.6.,
2003), 344 F.3d 603, 615-16 (finding that the plaintiff established a prima facie case of
reverse discrimination because the plaintiff “provided a substantial amount of statistical
data relating to * * * promotion and hiring patterns”). In other words, Horsley’s bare
assertion about Scioto Residential’s work force does not provide the specific facts
necessary to establish a prima facie case of reverse gender discrimination.
{¶77} Horsley also claims that “many of the persons who received better treatment
than [he did] were female.” Brief of Plaintiff-Appellant Donald Horsley at 15. For that
reason, Horsley argues that Scioto Residential is the unusual employer that
discriminates against males. But in his brief, Horsley fails to note (1) who, exactly,
received better treatment than he did or (2) how, exactly, these individuals received
better treatment. Therefore, in this regard, Horsley has failed to demonstrate error with
reference to the record. Nevertheless, we have reviewed Horsley’s affidavit and
Scioto App. No. 10CA3356 22
deposition testimony for evidence that Scioto Residential is the unusual employer that
engages in reverse gender discrimination. And although Horsley mentioned several
females who supposedly received more work hours and opportunities for overtime,
Horsley also stated that he was passed over for a promotion that went to another male.
As Horsley noted, “I was denied promotion to a Support Manager position, which
position was awarded to a less qualified, younger ‘rehired’ employee of defendants. * * *
[I]t was Nick Conley who received the position.” Affidavit of Plaintiff Donald Horsley at
¶11. A male receiving a promotion does not support the suspicion that Scioto
Residential discriminates against male employees. In fact, Conley receiving the
Support Manager position supports the opposite inference – that Scioto Residential
does not discriminate against males.
{¶78} Thus, Horsley failed to establish a prima facie case of reverse gender
discrimination by a preponderance of the evidence. More specifically, Horsley failed to
establish that Scioto Residential is the unusual employer who discriminates against
males. Therefore, there is no genuine issue of material fact regarding Horsley’s
reverse-gender-discrimination claim, and Scioto Residential is entitled to judgment as a
matter of law. See, e.g., Tack at ¶26-47 (finding that “[a]ppellant failed to establish that
[a]ppellee is the unusual employer who discriminates against male employees”).
D. Whistleblower Claim
{¶79} “Under R.C. 4113.52, Ohio’s Whistleblower Statute, an employer may not
take disciplinary or retaliatory action against an employee who reports certain violations.
The statute addresses a situation in which an employee, in the course of his
employment, becomes aware of a legal violation that the employer has the authority to
Scioto App. No. 10CA3356 23
correct, and the employee reasonably believes that the violation is either a criminal
offense that is likely to cause an imminent risk of physical harm or a hazard to public
health or safety, or a felony.
{¶80} “Under those circumstances, the employee must orally notify his supervisor or
other responsible officer of the employer of the violation and subsequently file with that
person a written report that provides sufficient detail to identify and describe the
violation. If the employee satisfies those requirements and the employer fails to correct
or make a good-faith effort to correct the violation within 24 hours, the employee may
then file a written report with outside authorities.” Abrams v. Am. Computer
Technology, 168 Ohio App. 3d 362, 2006-Ohio-4032, at ¶34-35 (internal citations to R.C.
4113.52 omitted).
{¶81} “Clearly, the provisions of R.C. 4113.52(A)(1) contemplate that the employer
shall be given the opportunity to correct the violation.” Contreras v. Ferro Corp. (1995),
73 Ohio St. 3d 244, 248. Thus, “[i]n order for an employee to be afforded protection as a
‘whistleblower,’ such employee must strictly comply with the dictates of R.C. 4113.52.
Failure to do so prevents the employee from claiming the protections embodied in the
statute.” Id. at syllabus; see, also, Abrams at ¶40 (“To be afforded protection as a
whistleblower, an employee must strictly comply with the mandates of R.C. 4113.52.”).
{¶82} Here, Horsley does not even allege that he complied with the requirements of
R.C. 4113.52. “The statute mandates that the employer be informed of the violation
both orally and in writing. An employee who fails to provide the employer with the
required oral notification and written report is not entitled to statutory protection for
reporting the information to outside authorities.” Contreras at 248. Horsley did make
Scioto App. No. 10CA3356 24
various complaints to outside officials. But nowhere does he claim that he first provided
Scioto Residential with the required oral notification and written report. Instead, Horsley
maintains that Scioto Residential was “on notice” of the perceived violations. Brief of
Plaintiff-Appellant Donald Horsley at 20. Even if this were true, Scioto Residential being
“on notice” is insufficient to invoke the protections of R.C. 4113.52.
{¶83} “[I]f an employee does not ‘whistle’ both orally and in writing, he is not a
whistleblower.” Abrams at ¶40. Here, Horsley does not even claim that he properly
notified his employers of the perceived violations. As a result, no reasonable mind
could find that he “properly bl[e]w the whistle.” Id.
{¶84} Because there are no genuine issues of material fact regarding Horsley’s
failure to comply with R.C. 4113.52, Scioto Residential is entitled to judgment as a
matter of law on Horsley’s whistleblower claim.
E. Conclusion
{¶85} After construing the record and all inferences therefrom in Horsley’s favor, we
find the following: (1) there are no genuine issues of material fact as to Horsley’s age
discrimination, gender discrimination, or whistleblower claims; (2) Scioto Residential is
entitled to judgment as a matter of law on all of Horsley’s claims; and (3) reasonable
minds can come to just one conclusion as to all of Horsley’s claims, and that conclusion
is adverse to Horsley.
{¶86} Accordingly, we overrule Horsley’s assignment of error and affirm the
judgment of the trial court.
JUDGMENT AFFIRMED.
Scioto App. No. 10CA3356 25
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.