Thomas v. Cohr, Inc. , 197 Ohio App. 3d 145 ( 2011 )

[Cite as Thomas v. Cohr, Inc., 197 Ohio App.3d 145, 2011-Ohio-5916.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
THOMAS, : APPEAL NO. C-110094
TRIAL NO. A-0804768
Appellant, :
v. : O P I N I O N.
COHR, INC., et al., :
Appellees. :
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:
:
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:
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Civil Appeal From: Hamilton County Common Pleas Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 18, 2011
Karen A. Thomas, for appellant,.
Vorys, Sater, Seymour & Pease, L.L.P., Mark A. Knueve, Dorothea K. Langsam, and Bradley
L. Gibson, for appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
S YLVIA S IEVE H ENDON , Judge.
{¶ 1} Plaintiff-appellant, Kathleen P. Thomas, filed a complaint against defendants-
appellees, Cohr, Inc., d.b.a. Masterplan, Inc. (“Masterplan”), Joseph Happ, Bernard Bruns,
Charles A. Dille, Patricia Napa, and Kathy Helbringer, alleging intentional infliction of
emotional distress; negligent supervision; wrongful discharge in violation of Ohio public
policy; constructive discharge; discrimination based on national origin, gender, and age in
violation of R.C. Chapter 4112; defamation; retaliation; and spoliation of evidence. The trial
court granted summary judgment in favor of the defendants-appellees on all of Thomas’s
claims, except her gender-discrimination claim. Because Thomas did not oppose the
summary-judgment motion with respect to that claim, the trial court dismissed it. Thomas
now appeals.
{¶ 2} Thomas named each of the six defendants-appellees in her notice of appeal to
this court. However, in her appellate brief, Thomas has limited her arguments to her claims
against three of the defendants-appellees: Masterplan, Happ, and Helbringer.
{¶ 3} First, Thomas appeals the court’s summary judgment in favor of Helbringer,
Happ, and Masterplan on her claim for intentional infliction of emotional distress. She also
appeals the court’s summary judgment in favor of Happ on her defamation claim. In
addition, Thomas appeals the court’s summary judgment in favor of Masterplan on her
claims for negligent supervision regarding Happ, wrongful discharge, and constructive
discharge.
{¶ 4} In her appellate brief, Thomas purports to challenge the court’s summary
judgment in favor of Masterplan on her spoliation-of-evidence claim. However, Thomas has
failed to present for our review an assignment of error or any argument regarding that
claim. To be considered on appeal, errors by a trial court must be argued and supported by
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OHIO FIRST DISTRICT COURT OF APPEALS
legal authority and citation of the record. App.R. 16(A); Loukinas v. Roto-Rooter Servs.
Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 9. Errors not argued in a
brief will be deemed to have been abandoned. App.R. 12(A)(2); Loukinas. Accordingly, we
disregard Thomas’s assertion that her appeal applies to the trial court’s judgment in favor of
Masterplan on her spoliation claim. Id.{¶ 5} Thomas has not appealed the trial court’s judgment on her discrimination or
retaliation claims, or its judgment on her claim that Masterplan had negligently supervised
Dille, Bruns, Napa, or Helbringer.
Factual Background
{¶ 6} Beginning in 2000, Thomas worked as a biomedical engineer at the Christ
Hospital, repairing and maintaining hemodialysis equipment. In 2002, her department was
outsourced to Genesis Technology Partners (“GTP”). In February 2006, Masterplan
purchased GTP, and Thomas was hired by Masterplan.
{¶ 7} On January 25, 2006, Dille was Thomas’s immediate supervisor. But Thomas
called Barry Bruns, Dille’s boss, to tell him that she was overwhelmed with work. Shortly
after her call to Bruns, Dille entered Thomas’s workstation, pointing at her and yelling,
which allegedly scared Thomas. After a few minutes, Thomas got up from her chair and left
her workstation. Dille followed her, “hollering” that she worked for him and that she should
not “go around” him. Thomas walked to the office of Dian Danino, manager of the
hemodialysis unit, and asked to speak with her. Danino met with Dille and Thomas in a
conference room. According to Thomas, Dille told her that he was wrong and apologized for
his behavior.
{¶ 8} Nonetheless, Thomas called Joseph Happ, Masterplan’s district manager, to
tell him what had happened. The next day, Happ met with her. According to Thomas,
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OHIO FIRST DISTRICT COURT OF APPEALS
Happ told her to give Dille a second chance, that it would be good for her, and that he would
remove anything that she did not like from her file.
{¶ 9} Happ and Bruns began investigating the Dille incident and held several
meetings with Thomas, Danino, and Dille. Dille admitted that he had raised his voice to
Thomas after she had failed to respond to his questions. Thereafter, Happ and Bruns
counseled Dille that appropriate behaviors for dealing with fellow employees did not include
raising one’s voice or finger-pointing.
{¶ 10} Thomas was not satisfied with Happ’s investigation of the incident, so she
contacted Masterplan’s human-resources department in California. In March 2006, Eloisa
Abarques, the vice president of that department, organized a conference call with Happ and
Thomas to discuss Thomas’s concerns.
{¶ 11} Thomas felt that nothing had been resolved during the conference call, so she
continued to contact the human-resources department. In April 2006, Kathy Helbringer,
an executive zone director for Masterplan, flew from Maryland to Cincinnati to meet with
Thomas. Following their three-hour meeting, Helbringer decided to allow Thomas to report
to Greg Herr, rather than to Dille.
{¶ 12} In September 2007, Herr and Bruns learned from the human-resources
consultant from the Christ Hospital that Thomas had been complaining to hospital
employees about Masterplan’s service documentation, complaining that she was
overworked, and requesting that the hospital hire her. The manager and the supervisor of
the hospital’s hemodialysis department indicated that they had no interest in hiring Thomas
and that her negative comments had been a disruption to the department. As a result of
Thomas’s conduct, Masterplan placed Thomas on a 60-day work-improvement plan in
October 2007. Thomas resigned from Masterplan in January 2008.
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OHIO FIRST DISTRICT COURT OF APPEALS
Standard of Review
{¶ 13} In five assignments of error, Thomas argues that the trial court erred by
granting summary judgment in favor of the defendants-appellees. Under Civ.R. 56(C), a
motion for summary judgment may be granted only when no genuine issue of material fact
remains to be litigated, the moving party is entitled to judgment as a matter of law, and it
appears from the evidence that reasonable minds can come to but one conclusion, and with
the evidence construed most strongly in favor of the nonmoving party, that conclusion is
adverse to that party. See State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d 587, 589,
639 N.E.2d 1189. This court reviews a ruling on summary judgment de novo. Jorg v.
Cincinnati Black United Front, 153 Ohio App.3d 258, 2003-Ohio-3668, 792 N.E.2d 781, ¶ 6.
Constructive Discharge
{¶ 14} In her first assignment of error, Thomas argues that the trial court erred by
granting summary judgment in favor of Masterplan on her claim that she had been
constructively discharged.
{¶ 15} To prove a claim of constructive discharge, a plaintiff must demonstrate that
the former employer’s actions made working conditions so intolerable that a reasonable
person under the circumstances would have felt compelled to resign. Wille v. Hunkar
Laboratories, Inc. (1998), 132 Ohio App.3d 92, 106, 724 N.E.2d 492; Mauzy v. Kelly Servs.
(1996), 75 Ohio St.3d 578, 664 N.E.2d 1272, paragraph four of the syllabus. The question is
whether the cumulative effect of the actions by the employer would make a reasonable
person believe that termination was imminent. Mauzy at 589. The test is an objective one,
so an employee’s belief that she was compelled to resign must be judged without
considering her “ ‘undue sensitivities.’ ” Risch v. Friendly’s Ice Cream Corp. (1999), 136
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OHIO FIRST DISTRICT COURT OF APPEALS
Ohio App.3d 109, 113, 736 N.E.2d 30, quoting Wilson v. Firestone Tire & Rubber Co. (C.A.6,
1991), 932 F.2d 510, 515 .
{¶ 16} Thomas contends that she demonstrated a genuine issue of material fact with
respect to her constructive-discharge claim. She points to the Dille incident, to Masterplan’s
allegedly deficient investigation, and to the disciplinary actions taken against her by
Masterplan as indications that her working conditions had become intolerable.
{¶ 17} We do not agree that the cumulative effect of Dille’s outburst and
Masterplan’s actions would have caused a reasonable person to feel that she had been forced
to resign. Thomas did not resign until two years after the January 2006 incident with Dille,
belying any claim that her working conditions were utterly unbearable as a result of that
incident. Moreover, we do not believe that Masterplan’s investigation of the incident and its
efforts to address Thomas’s concerns were so egregious that a reasonable employee would
have felt forced to quit. See Risch, 136 Ohio App.3d at 112, 736 N.E.2d 30. Following the
January 2006 incident, Masterplan counseled Dille about appropriate behavior. This
intervention apparently succeeded because in the two years between the incident and
Thomas’s eventual resignation, Dille and Thomas had had no further incidents. Finally,
Thomas failed to demonstrate that the October 2007 disciplinary action against her had
been unwarranted or would have contributed to making her working conditions so
intolerable that a reasonable person would have felt compelled to resign.
{¶ 18} Thomas further cites her doctor’s testimony that returning to work at
Masterplan would have been bad for her physical and mental health. She argues that a jury
could find that her resignation pursuant to medical advice had been involuntary. But our
inquiry is an objective one, made without consideration of Thomas’s personal sensitivities.
See id. at 113. On this record, we cannot say that the working conditions were so unbearable
that a reasonable employee would have felt compelled to resign.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶ 19} Because Thomas failed to demonstrate a genuine issue of material fact with
respect to constructive discharge, the trial court properly granted summary judgment in
favor of Masterplan on that claim. We overrule the first assignment of error.
Discharge in Violation of Public Policy
{¶ 20} In her second assignment of error, Thomas argues that the trial court erred by
granting summary judgment to Masterplan on her claim that she had been wrongfully
discharged in violation of Ohio public policy.
{¶ 21} In an action claiming wrongful discharge, “a terminated employee must
articulate a clear public policy by citation of specific provisions in the federal or state
constitution, federal or state statutes, administrative rules and regulations, or common
law.” Dohme v. Eurand Am., Inc., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825. In
this case, Thomas has not asserted or proven the existence of a clear Ohio public policy
supported by specific citations sufficient to overcome a motion for summary judgment.
Moreover, in light of our holding that Thomas had voluntarily resigned from Masterplan,
her wrongful-discharge claim fails as a matter of law. We overrule the second assignment of
error.
Intentional Infliction of Emotional Distress
{¶ 22} In her third assignment of error, Thomas argues that the trial court erred by
granting judgment in favor of Masterplan, Happ, and Helbringer on her claims for
intentional infliction of emotional distress.
{¶ 23} To prove her intentional-infliction claim, Thomas was required to show that
Masterplan, Happ, and Helbringer had intentionally caused her severe emotional distress
by engaging in extreme and outrageous conduct. Yeager v. Local Union 20 (1983), 6 Ohio
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St.3d 369, 374, 453 N.E.2d 666. Thomas cites Happ’s request that she give Dille a second
chance, Helbringer’s failure to tell Dille to stay away from her, and Masterplan’s 2007
disciplinary action against her as examples of outrageous conduct. But none of these
examples would be actionable for purposes of an intentional-infliction-of-emotional-
distress claim because none of the cited conduct was “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Id. at 375. Consequently, we
overrule the third assignment of error.
Defamation
{¶ 24} In her fourth assignment of error, Thomas argues that the trial court erred by
granting summary judgment in favor of Happ on her defamation claim. The elements of a
defamation claim are (1) a false and defamatory statement, (2) about the plaintiff, (3)
published without privilege to a third party, (4) with fault or at least negligence on the part
of the defendant, and (5) that was either defamatory per se or caused special harm to the
plaintiff. Davis v. Jacobs (1998), 126 Ohio App.3d 580, 582, 710 N.E.2d 1185.
{¶ 25} Thomas alleged that Happ had lied about her in a conference call to two
members of Masterplan’s human-resources department. She contends that he had made
false statements about her having had problems with co-workers in the past. Thomas failed,
however, to present evidence that Happ’s statements were false. On the contrary, the record
demonstrates that Thomas had had problems with co-workers during her employment. In
her 2003 performance review, Thomas had been warned that if communication with her
peers did not improve by her next review, “it will not be acceptable.” In 2005, Thomas had
been warned that her behavior toward a co-worker had been unacceptable and that she was
required to treat all co-workers with dignity and respect. Thomas had been instructed that
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any further misconduct could result in disciplinary action, including suspension or
termination.
{¶ 26} Because Thomas failed to demonstrate a genuine issue of fact with respect to
the falsity of Happ’s statements, the trial court properly entered judgment in favor of Happ
on her defamation claim. We overrule the fourth assignment of error.
Negligent Supervision
{¶ 27} In her fifth assignment of error, Thomas argues that the trial court erred by
granting summary judgment in favor of Masterplan on her claim that it had negligently
supervised Happ. An underlying requirement in such an action is that the employee is
individually liable for a tort against a third person who then seeks recovery from the
employer. Strock v. Pressnell (1988), 38 Ohio St.3d 207, 217, 527 N.E.2d 1235. In this case,
the trial court correctly determined that Happ was not liable to Thomas for either
defamation or intentional infliction of emotional distress. Accordingly, Thomas’s claim for
Masterplan’s negligent supervision of Happ fails as a matter of law. We overrule the fifth
assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
DINKELACKER, P.J., and HILDEBRANDT, J., concur.
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