Diller v. Miami Valley Hosp. , 102 N.E.3d 520 ( 2017 )

[Cite as Diller v. Miami Valley Hosp., 2017-Ohio-9051.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
NOELLE DILLER :
:
Plaintiff-Appellant : C.A. CASE NO. 27342
:
v. : T.C. NO. 16-CV-38
:
MIAMI VALLEY HOSPITAL : (Civil Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
...........
OPINION
Rendered on the 15th day of December, 2017.
...........
DAVID M. DUWEL, Atty. Reg. No. 0029583, 130 W. 2nd Street, Suite 2101, Dayton, Ohio
45402
Attorney for Plaintiff-Appellant
KAREN T. DUNLEVEY, Atty. Reg. No. 0067056, 70 Birch Alley, Suite 240, Dayton, Ohio
45440
Attorney for Defendant-Appellee
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the November 14, 2016 Notice of Appeal
of Noelle Diller. Diller appeals from the trial court’s “Decision, Order and Entry
Sustaining Defendant’s Motion to Strike Exhibits to Plaintiff’s Memorandum in Opposition
to Motion for Summary Judgment and Sustaining Defendant’s Motion for Summary
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Judgment.” We hereby affirm the judgment of the trial court.
{¶ 2} Diller filed a Complaint against Miami Valley Hospital (“MVH”) on January 5,
2016, alleging “wrongful discrimination for sex discrimination, sexual harassment and
retaliation predicated on violations of Sections 4112.02 and 4112.99 of the Ohio Revised
Code.” The Complaint provides that Diller “began her employment with Defendant MVH
in September 2007 as a uniformed officer. In 2012 she was promoted to the position of
Parking and Information Systems Security Manager.” Diller alleged that she “performed
her job in a very satisfactory manner and always received very favorable performance
reviews.” According to the Complaint, around July 2014, MVH “hired Franklin Davidson
as its Director of Campus Police,” and Davidson became Diller’s supervisor. Shortly
after he was hired, Davidson “began to engage in actions believed by [Diller] to constitute
sex discrimination and sexual harassment,” such as “offensive and inappropriate
comments that were sexually charged,” according to Diller. The Complaint asserts that
Diller reported Davidson’s “unlawful conduct to [MVH’s] senior management.”
{¶ 3} The Complaint asserts that Diller was instructed to observe Davidson and “to
continue to bring any concerns forward.” Diller alleged that she “learned of a potential
sexual harassment incident involving Davidson and a female employee of [MVH] and
began to investigate same so she could report back to management.” According to the
Complaint, once MVH discovered that Diller was investigating “this sexual harassment
incident, Davidson and [MVH] began to falsely accuse [Diller] of workplace infractions
which eventually lead to her wrongful termination on February 19, 2015.”
{¶ 4} MVH answered the Complaint on February 4, 2016, and on September 6,
2016, it filed “Defendant’s Motion for Summary Judgment.” MVH asserted in its motion
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that in the course of her employment, Diller reported to Davidson and Jeff James, the
Director of Facility Services, and that she was terminated “for compromising the Hospital’s
security system by reprogramming a security camera for purposes of trying to catch
Davidson spending too much time at the Information Desk.” According to MVH, “Diller
claims that she received an anonymous voicemail message from an unidentified caller
who expressed a concern about the amount of time that Davidson was spending at the
Information Desk near the employee entrance to the Hospital.” MVH argued that Diller
“took it upon herself to commandeer the Hospital’s security surveillance system to try to
catch [Davidson] in the act.” Citing Diller’s attached deposition, MVH asserted that “Diller
was very clear in her testimony that she did not suspect that Davidson was engaging in
any misconduct aside from wasting time at the Information Desk. Specifically, she
testified that she was not investigating possible sexual harassment by Davidson.” MVH
asserted that the “alleged anonymous voicemail was never mentioned even when she
was confronted about reprogramming the camera, in her statement provided to Human
Resources in response to her suspension, or in her lawsuit.”
{¶ 5} MVH argued that the camera at issue, “Camera 304,” a “Pan Tilt Zoom”
device, was in place “to monitor and record activities within the interior employee
entrance” to the hospital and lobby area, which includes the Information Desk. MVH
asserted that authorized security personnel could move the camera by means of a
joystick to focus on specific areas within the camera’s range. According to MVH,
vagrants commonly loiter near the employee entrance, and the camera “was a critical
component of the Hospital’s surveillance system.” MVH argued that Camera 304 was
programmed with a “Home” setting, by means of which the camera would always return,
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after a short period of time, to focus on the employee entrance. The “Home” setting “was
intended to protect the Hospital’s employees entering and leaving work, especially given
the known presence of vagrants in that area.”
{¶ 6} According to MVH, “on January 28, 2015, Diller entered the Security Dispatch
[O]ffice and informed the two Dispatchers on duty (Tim Ahrns and Angela Cupp) that she
wanted to reposition Camera 304 to focus on the Information Desk,” to see if she could
catch Davidson “hanging around” there. MVH asserted that Diller “disengaged/unlocked
the camera’s ‘Home’ Setting and then used the joystick to move the camera to focus on
the Information Desk.” MVH argued that Ahrns and Cupp discussed Diller’s actions and
were uncomfortable with her moving the camera. According to MVH, “Cupp commented
that she did not want to be part of Diller’s ‘petty vendetta’ against Davidson,” and shortly
after Diller left the Security Dispatch Office, Ahrns returned the camera’s focus to the
employee entrance. The following morning, according to the motion, Diller discovered
that the camera’s focus had been returned to the employee entrance five minutes after
she moved it to the Information Desk the previous afternoon. MVH asserted that Diller
advised Ahrns that Ahrns “could move Camera 304 wherever he wanted it,” and that
Ahrns worked a half day on January 29, 2015 and then was off work until February 3,
2015.
{¶ 7} According to MVH, between January 29 and February 3, 2015, “Diller asked
Eric Gagnon (an employee of IPS – one of the Hospital’s IT vendors) to go back into the
Dispatch Office for her and reprogram Camera 304 to focus on the Information Desk AND
to set that as the camera’s new ‘Home’ setting.” MVH asserted that Gagnon did so, and
when Ahrns returned to work, he discovered that the camera had been “Homed” on the
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Information Desk. On February 4, 2015, according to MVH, Ahrns asked Diller about the
repositioned camera, and she told him that “she would look into it.” MVH asserted that
on the same day, “Ahrns reported Diller’s actions to Corporal Brad Goudy and Sargent
[sic] Benjamin Mason of the Hospital’s Campus Police Department.” MVH asserted that
on February 5, 2015, Diller “reprogrammed Camera 304 back to its original ‘Home’
setting, focused on the employee entrance, where it belonged.”
{¶ 8} According to MVH, Diller was suspended on February 6, 2015 “pending an
investigation into the reprogramming of the security camera.” MVH asserted that
“Human Resources and the Security Department conducted an investigation and
obtained statements from all witnesses, including Diller. * * * The statement by Diller
contradicts her sworn deposition testimony in many respects.” MVH asserted that Diller
“fails to acknowledge (and implicitly denies) that she did, in fact, move the camera in an
attempt to view Davidson at the Information Desk,” but that she admitted doing so in her
deposition. Further, MVH asserted, in her initial statement Diller claimed that she told
Gagnon that she did not want the camera focused on the Information Desk, but in her
deposition she admitted that was a false statement. Finally, MVH asserted that Diller
was terminated on February 19, 2015 “for compromising the Hospital’s security camera
surveillance system.”
{¶ 9} Regarding Diller’s sexual harassment claim, MVH notes that in her
deposition, “Diller recounts a story when she was helping Davidson with a computer
issue. He was seated at his desk and she was standing behind him to visualize his
computer monitor while on the phone with the Help Desk for him. He recited a famous
quote, ‘Behind every good man is a good woman.’ ” MVH asserted that the remark “was
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an acknowledgment of her superiority with the issue at hand and his need for help from
her. * * * No reasonable jury would find this statement to be offensive or sexual in nature.”
{¶ 10} According to MVH, the “second comment that Diller claims was offensive
was one that she initially said to Davidson and he merely repeated. The two were talking
one day and Diller commented about how she needed to ‘just pull up my big girl panties.’
* * * Davidson apparently adopted her use of the phrase and repeated it on a few
occasions.” MVH asserted that “no reasonable juror would have found the use of this
phrase to be offensive in this context.”
{¶ 11} Finally, MVH asserts that the “only other behavior by Davidson that Diller
claims to be harassing is that he raised his eyebrows (which she referred to as ‘Google
eyes’), while asking ‘hey, how are you?’ Beyond that, Diller states that Davidson was
‘demeaning’ to employees. Diller testified that Davidson’s demeaning behavior was
directed to everyone in the office.” According to MVH, “Diller is simply incapable of
producing sufficient evidence to create a genuine issue of material fact that Davidson’s
conduct was either sufficiently severe or pervasive to affect the terms, conditions, or
privileges of employment, or that it was ‘based on sex.’ ”
{¶ 12} Regarding Diller’s retaliation claim, MVH asserted that Diller “is unable to
offer evidence to establish a prima facie case. First, Diller cannot offer any evidence that
she engaged in protected activity.” According to MVH, “Diller’s retaliation claim appears
to be based upon two alleged protected activities: (1) her report of inappropriate actions
by Davidson to [MVH’s] senior management * * * and (2) her investigation into the amount
of time Davidson was spending at the Information Desk.” MVH asserted that neither of
these activities “constitute protected activity under R.C. §4112.02(I).”
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{¶ 13} MVH asserted that in September, 2014, MVH’s Chief Operating Officer,
Mikki Clancy, “solicited feedback from the Security Department regarding Davidson as
part of his 90-day evaluation. Diller responded with critical opinions of Davidson, which
are set forth in a collection of emails to Clancy. * * * Diller described Davidson as
pompous, demeaning, unknowing, and disrespectful.” MVH asserted that Diller
indicated that “male coworkers also expressed similar concerns about Davidson. * * *
Diller provided Clancy with examples, including the ‘behind every good man is a good
woman’ incident. She did not, however, tell Clancy about Davidson’s reuse of her term
‘Big Girl Panties.’ ” According to MVH, “Diller did not describe anything that could even
arguably be considered to be sexual harassment or unlawful discrimination – either in her
emails to Clancy or in her deposition testimony.”
{¶ 14} MVH argued that the “focus of Diller’s retaliation claim is found in her
allegation that she was retaliated against for investigating Davidson. * * * In order for an
investigation to be considered protected activity, however, the investigation had to relate
to conduct that arguably violated R.C. §4112.” MVH asserted that “Diller’s rogue
investigation had nothing at all to do with any even arguable discrimination or unlawful
harassment.”
{¶ 15} MVH asserted that Diller’s deposition testimony does not support the
allegations in her Complaint. MVH argued that while in her Complaint, Diller asserted
that she was terminated in retaliation for investigating a potential sexual harassment
incident involving Davidson, in her deposition, she indicated that she was investigating
“whether Davidson was spending too much time at the Information Desk,” and she denied
that she was investigating sexual harassment. MVH asserted that to prove her
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retaliation claim, “Diller must show that she was acting in opposition to an unlawful
discriminatory practice,” and that spending “too much time at the Information Desk is
neither discriminatory nor unlawful.”
{¶ 16} MVH asserted that even “if Diller’s investigation could somehow be
considered ‘protected activity,’ she cannot establish the second required element of a
prima facie case – that the defendant knew of her protected activity. Diller testified that
she did not tell anyone in management at the Hospital that she was investigating
Davidson.” MVH argued that Diller’s written statement at the time of her suspension
“says nothing about any investigation or any concerns involving Davidson.”
{¶ 17} MVH further asserted that even “if Diller were able to establish a prima
facie case of retaliation, the Hospital had a legitimate non-retaliatory reason for
terminating her, and that reason is not susceptible to a pretext challenge. Diller was
terminated for compromising the Hospital’s security camera surveillance system.” MVH
argued that although she “lied about it in the written statement she submitted at the time
of her suspension, Diller now admits to everything.” MVH argued that “Diller also admits
that she did not even consider whether her actions in reprogramming the camera could
undermine the Hospital’s security systems. The Hospital was fully justified in terminating
Diller for this reckless behavior.”
{¶ 18} Finally, MVH argued that Diller cannot establish that its reason for
terminating her has no basis in fact, since she admitted reprogramming the camera, and
that she “can offer no evidence that something else actually motivated the decision to
terminate her.” MVH asserted that “in order to prove that the grounds for her termination
were insufficient to warrant termination, she would need to offer evidence that other
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similarly-situated employees engaged in similar misconduct but were not terminated. No
such evidence exists.”
{¶ 19} Portions of Diller’s deposition are attached to the motion for summary
judgment, along with two exhibits thereto. Exhibit 1 is email correspondence between
Diller and Mikki Clancy regarding Davidson’s conduct, and Exhibit 2 is Diller’s February
9, 2015 written statement that she provided to human resources upon her suspension.
Also attached is the affidavit of Dispatcher Tim Ahrns, which provides as follows:
***
3) Late afternoon on January 28, 2015, Noelle Diller entered the
Security Dispatch office and informed me and Angela that she wanted to
reposition Camera 304 to focus on the Information Desk. Noelle told us
that she wanted to see if she could catch Campus Police Chief Franklin
Davidson hanging around the Information Desk.
4) Camera 304 had [been] programmed with a “Home” setting
focused on the employee entrance to the Hospital. This “Home” setting
was intended to protect the Hospital employees entering and leaving work,
especially given the known presence of vagrants in that area.
5) Noelle disengaged/unlocked Camera 304’s “Home” setting and
used the joystick to move the camera to focus on the Information Desk.
6) When Diller left the Dispatch office, Angela and I discussed that
we were both very uncomfortable with Noelle moving the camera away from
its “Home” setting focused on the employee entrance. * * *
7) Shortly after Noelle left, I moved Camera 304 away from the
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Information Desk and re-focused it back to the employee entrance where it
belonged. Since Noelle had disengaged the “Home” setting, the camera
would remain focused on the employee entrance, where it belonged, until
someone moved it again. The Security Dispatchers did not have the ability
to change the “Home” setting on the camera.
8) I worked a half day on January 29, 2015 and was then off work
until February 3, 2015. Noelle called me the morning of January 29th and
told me that I could move Camera 304 wherever I wanted it.
9) When I returned to work on February 3, 2015, I discovered that
Camera 304 had been moved back to and, this time, “Homed” on the
Information Desk.
10) That same day, I reported Noelle’s actions to Corporal Brad
Goudy and Sargent [sic] Benjamin Mason of the Hospital’s Campus Police
Department. Her actions were very concerning to me. In my opinion,
Noelle had compromised the Hospital’s security system by reprogramming
the camera, especially in light of her stated reason for doing it.
{¶ 20} Finally, the affidavit of Bukari Miles, the Senior Human Resources
Consultant for MVH, is attached to the motion for summary judgment. It provides as
follows:
***
3) In my capacity as Senior Human Resources Consultant, I have
had communications with Noelle Diller relative to Franklin Davidson.
Although Ms. Diller criticized Chief Davidson’s management style and
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competence, at no time prior to her termination did Ms. Diller ever allege
that Chief Davidson engaged in any conduct which could be construed as
unlawful discrimination or sexual harassment.
4) In February, 2015, Tim Ahrns, a Dispatcher in the Hospital’s
Security Department, escalated concerns with Hospital management
regarding Noelle Diller’s activities vis-à-vis the Hospital’s security camera
surveillance system.
5) I assisted with conducting an investigation into the concerns
raised regarding Ms. Diller’s activities vis-à-vis the Hospital’s security
cameral surveillance system.
6) On February 19, 2015, Ms. Diller was terminated for
compromising the Hospital’s security camera surveillance system.
7) A true and accurate copy of the termination documentation is
attached hereto as Exhibit 1.
{¶ 21} The attached “Corrective Action Form, Level 5: Discharge/ Termination,”
details Diller’s actions in repositioning the camera, and Ahrns’ report of her conduct to
Mason, and it provides that Diller’s conduct “has served as a major intentional breach in
the security of MVH hospital through its Security Camera Surveillance System.” The
form further provides in part:
Immediate termination infractions
9. Corrective Action Policy; Engaging in activity detrimental to the operation of
Premier [H]ealth or any of its affiliates.
12. Violation of hospital or departmental policies[.]
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1S Deliberately making false statements against others.
General conduct violations
15. Violation of Department/unit or any organizational Policy or Protocol[.]
26. Abuse or mishandling of [P]remier [H]ealth financial resources (video security
cameras)[.]
{¶ 22} On September 20, 2016, a “Memorandum in Opposition to Defendants’
Motion for Summary Judgment” was filed. Therein Diller asserted that her duties at MVH
included “re-positioning cameras for [MVH] and that there remained numerous cameras
[where] [she] re-positioned the camera, thus there was no safety issues [sic].” According
to Diller, after receiving an anonymous voicemail that Davidson was “spending a
substantial amount of time with an unnamed female employee during work hours” at the
Information Desk, she chose to investigate whether inappropriate behavior was occurring
before reporting that Davidson’s behavior was inappropriate. Diller stated that she acted
to “protect the hospital’s employees and patients.” She stated that she asked for the
camera to be repositioned, and noticed that on the following day, it had had been “moved
away from her desired location and actually homed to an entirely different viewing area.”
Diller stated that she then asked Eric Gagnon to “reprogram the camera to where she
originally requested Tim [Ahrns] to reposition the camera.”
{¶ 23} Diller argued that she testified the repositioning of the camera did not create
a safety issue because an employee badge was required to access the area where the
camera was located. Diller asserted that she further testified that “there are at least 14
cameras, include[ing] another pan-tilt-zoom camera that was able to view this area.”
According to Diller, she “capably testified that she had added a home setting to a PTZ
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camera no less than twenty times during her employment with” MVH. Diller argued that
“within only one week that [Davidson] became aware that [she] was attempting to spy on
his lengthy visits to the Information Desk, [she] was terminated. [MVH], and especially
Davidson, was aware that [Diller] believed that Davidson was doing something improper.”
{¶ 24} Regarding her sexual harassment claim, Diller argued that Davidson’s
harassment was “so unwelcome” to her that she sought intervention from Bukari Miles,
Senior Human Resources Consultant for MVH. Diller argued that Miles denied that she
did so in his affidavit, and that “this is a rather large question of fact for the jury to
consider.” Diller asserted that she emailed Mikki Clancy on September 22, 2014, stating
that “her relationship with Davidson feels ‘very volatile and [a] hostile work environment.’
” According to Diller, “Davidson was allowed to continue his disparate treatment of [her]
as acquiesced by Miles and Clancy.”
{¶ 25} Diller argued that Davidson’s “nothing like a good woman standing behind
a good man” statement was not a compliment, and that it “was more than likely a sexual
innuendo implying that he enjoyed [her] being close to him in the work environment * * *.”
According to Diller, her “big girl panties” remark for her “meant to step up her game, [and]
for Davidson, it was likely just a way for him to use the term panties and [Diller] in the
same sentence.” Diller argued that Davidson additionally “would make google (googly)
eyes at her,” and that he refused to call her by name, “instead using nicknames that he
alone thought appropriate.” According to Diller, she testified regarding another incident
“where, prior to a meeting regarding the placement of access card readers and security
options for the placement of cameras on a new floor of the hospital, [Diller] was told to
keep her mouth shut and take notes for Davidson.” She argued that Davidson
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demeaned her in the meeting.
{¶ 26} Regarding her retaliation claim, Diller asserted that the manner in which
her termination “was ultimately effectuated, together with the temporal circumstances
surrounding such unlawful actions, smack of the retaliatory conduct prohibited under Ohio
law.” Diller asserted that she was asked by Mikki Clancy “to report on Davidson and the
apparent hostile work environment that had occurred within the hospital since Davidson
began his employment.” Diller asserted that due to the “do nothing policy that the
hospital was actively participating in regards to Davidson’s treatment, [she] took notice of
the voice mail she received and sought to see for herself if Davidson was in fact doing
something improper at the information desk.” Diller asserted that she did not disclose
her investigation “because she did not want to falsely accuse her supervisor of
wrongdoing. * * * But upon Davidson’s knowledge that [Diller] was spying on him,
Davidson quickly investigated the matter and had [her] terminated.”
{¶ 27} Finally, Diller asserted that MVH has not demonstrated that repositioning
the camera was not “under [her] duties, nor will it be able to show that anyone was in
danger because of the repositioning.” She asserts that MVH has not explained “why
Davidson initially moved the camera away from the information desk, as it had always
been.” She argues that “retaliatory claims turn on the employer’s reaction to * * *
protected activity, and not on whether the employee correctly interpreted the workplace
environment. Thus, whether it can be demonstrated that Davidson subjected [Diller] to
lawfully recognized sexual harassment is irrelevant.” Diller asserted that she “need only
establish that she reasonably perceived such animus, attempted to address such belief
and was terminated for doing so.”
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{¶ 28} Attached to the memorandum is Diller’s complete deposition (Exhibit A); a
February 11, 2015 document entitled “Meeting with Angela Cupp, Support Dispatcher for
Campus Police,” regarding “Review of Statement Submitted to Chief Franklin Davidson,”
(Exhibit B); an email exchange between Mikki Clancy and Diller regarding Davidson’s
conduct (Exhibit C); and a “Position Summary” for the Parking and Security Information
Systems Specialist position (Exhibit D).
{¶ 29} On September 27, 2016, “Defendant’s Motion to Strike Exhibits to Plaintiff’s
Memorandum in Opposition to Motion for Summary Judgment” was filed. MVH asserted
that Exhibits B, C, and D “are not proper evidence under Civil Rule 56 and should be
stricken and not considered.”
{¶ 30} On September 27, 2016, “Defendant’s Reply Memorandum in Support of
Motion for Summary Judgment” was filed. MVH argued that Diller’s Memorandum in
Opposition “is considerably different from the story told by [Diller] in her sworn deposition
testimony.” MVH asserted that in “her deposition, Diller adamantly denied that she was
investigating possible sexual harassment,” and “also denied that Mikki Clancy in any way
authorized her to investigate Davidson’s conduct.” MVH argued that contrary to Diller’s
assertion in her memorandum, there “is no evidence before this Court that Davidson was
in charge of the investigation or even participated [in] the decision to terminate Diller.”
MVH asserted that Bukari Miles “acknowledged his communications with Diller relative to
Franklin Davidson.” According to MVH, there “is no evidence that Davidson singled out
Diller or even females generally.” MVH argued that Diller’s “lying to investigators is further
justification for her termination.” Regarding Diller’s characterization of the “do nothing
policy” at the hospital, MVH asserted that “the evidence shows that Diller was specifically
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advised by Mikki Clancy that her criticisms of Davidson were being investigated by HR.”
MVH asserted that it is undisputed that a threat of violence existed at the employee
entrance where Diller diverted the camera, “because it was a known refuge for vagrants.”
Finally, MVH argued that even “if Diller could reposition security cameras as part of her
job duties, that certainly did not entitle her to manipulate the Hospital’s IT vendor to
commandeer the Hospital’s security system to allow her to spy on her boss without
interference from the Security Dispatchers.”
{¶ 31} On October 3, 2016, a “Memorandum in Opposition to Defendant’s Motion
to Strike Exhibits to Plaintiff’s Memorandum in Opposition to Motion for Summary
Judgment” was filed. Diller asserted that “the exhibits attached to its motion were
provided by [MVH] during discovery in this matter and thus proper under Rule 56(C).
[Diller] has attached Certification of Counsel as Exhibit A to affirm that the documents
were served upon Plaintiff’s counsel through discovery.” The Certification of Counsel
provides in part: “True and accurate copies of certain documents produced during the
course of discovery * * * are set forth and identified herein below, which are materially
relied upon in furtherance of Diller’s opposition memorandum,” citing Exhibits A, B, C,
and D.
{¶ 32} In granting summary judgment in favor of MVH, the trial court noted that in
her deposition, Diller “asserted that she was investigating whether Davidson was
spending too much time at the Information Desk as suggested by an anonymous caller,
but never stated that she was investigating a potential sexual harassment incident
involving Davidson, as indicated in her Complaint.”
{¶ 33} Regarding MVH’s motion to strike Diller’s exhibits, the court concluded as
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follows:
* * * Under Ohio law, documents merely attached to a summary
judgment motion are not cognizable. The subject Exhibits do not fall within
one of the categories of evidence listed in Civ.R. 56(C), namely pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, or written stipulations of fact, and, thus, those
Exhibits can only be introduced as proper evidentiary material when
incorporated by reference in a properly framed affidavit.
While Defendant submitted an affidavit, or Certification of Counsel,
from David M. Duwel, the court fails to find that Duwel’s affidavit concerning
the Exhibits was sufficiently based upon personal knowledge or
affirmatively showed Duwel to be competent to testify as to the matters
stated and documents referenced therein. In his affidavit, Duwel failed to
demonstrate that he possessed working knowledge of the specific record-
keeping system that produced the documents or was able to vouch from
personal knowledge of the record-keeping system that such records were
kept in the regular course of business. Duwel failed to testify as to the
regularity and reliability of the business activity involved in the creation of
the records or that he was familiar with the compiling or retrieval of the
records or that the records were compiled at or near the occurrence of each
event by persons with knowledge of said events. Duwel also failed to state
that he was able to compare the copy with the original and verify the copy
is accurate, or explain why this could not be done. Furthermore, Duwel
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failed to properly incorporate by reference by failing to attach the documents
or other evidence to his affidavit. Therefore, Defendant’s Motion to Strike
as to Plaintiff’s Exhibit B, C, and D is hereby SUSTAINED, and the same
are hereby STRICKEN.
{¶ 34} Regarding Diller’s claim of sexual harassment, the trial court concluded as
follows:
In the instant action, [Diller] has not alleged a quid pro quo
harassment claim, but, rather, has alleged that Davidson’s conduct created
a hostile work environment. The alleged harassment about which [Diller]
complained consisted of the following occurrences: (1) an incident where
Davidson stated, “nothing like a good woman behind a good man”; (2)
uncounted incidents where, following [Diller’s] reference to “just pull up my
big girl panties,” Davidson repeated the phrase; and (3) an incident where
Davidson made “google” eyes at [Diller]. However, construing the
evidence in a light most favorable to [Diller] and accepting [Diller’s]
allegations as true, the court finds that reasonable minds could only come
to one conclusion regarding [Diller’s] sexual harassment claim – that being
adverse to [Diller] – and [MVH] is entitled to judgment as a matter of law.
Here, while it is undisputed that Davidson’s alleged statements and actions
were unwelcome to [Diller], [Diller] failed to set forth evidence demonstrating
that Davidson’s comments were based on sex or were sufficiently severe or
pervasive to affect [Diller’s] employment. First, the testimonial evidence
provided by [Diller] suggested that Davidson’s “demeaning” behavior was
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experienced by others in the department. Additionally, [Diller] was only
able to recall a limited number of incidents where Davidson allegedly made
comments that she believed were inappropriate, making the frequency of
the comments very low. Additionally, there is no evidence that the
comments were severe, as one comment referenced the saying, “Behind
every good man is a good woman,” and the comments referenced [Diller’s]
own statement regarding “to just pull up my big girl panties.” There is also
no evidence that any of the occasions were physically threatening or
humiliating, and there is no evidence that Davidson’s comments interfered
with [Diller’s] work performance. In other words, there is no evidence that
the actions of Davidson were so severe or pervasive enough to create an
objectively hostile work environment. Therefore, [MVH’s] Motion for
Summary Judgment as to Plaintiff’s sexual discrimination/sexual
harassment claim is SUSTAINED.
{¶ 35} Regarding Diller’s claim of retaliation, the trial court found as follows:
Here, the basis of [Diller’s] retaliation claim lies in her belief that she
was terminated because she reported alleged inappropriate actions by
Davidson to [MVH’s] management and she was attempting to investigate
the amount of time that Davidson was spending at the Information Desk.
The evidence before the court demonstrates that [Diller] provided feedback
to Mikki Clancy concerning her opinion regarding Davidson’s integration in
his new role and his general “demeaningness” to those in the department
and that Clancy expressed gratitude for [Diller’s] feedback in an email dated
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October 1, 2014. [Diller] also stated that others within the department felt
similarly about Davidson’s “demeaning” interaction with staff members.
While [Diller] asserted that she was investigating a “potential sexual
harassment incident involving Davidson” in her Complaint, she denied that
she was investigating Davidson for sexual harassment during her
deposition and simply stated that she was investigating the amount of time
that Davidson was spending at the Information Desk.
Still, there is no evidence that [Diller] told anyone in management at
[MVH] that she was investigating Davidson. There is also no evidence that
[Diller] ever notified [MVH] regarding Davidson’s alleged sexual harassment
of [Diller], including Davidson’s statement, “nothing like a good woman
behind a good man” or his reference to [Diller’s] saying “to just pull up her
big girl panties.” Additionally, [MVH] set forth evidence that [Diller] was
terminated for compromising [MVH’s] security camera and leaving the
employee entrance to the Hospital without security surveillance for an
extended period of time. It is also undisputed that [Diller] knew that the
camera had been positioned to focus on the employee entrance; that
vagrants loitered at the entrance; and that the Dispatchers had moved the
camera back to its “Home” setting focused on the entrance after [Diller] tried
to move it the first time. It is also undisputed that [Diller] later requested IT
to then reprogram the camera with a new “Home” setting focused on the
Information Desk, even after the Dispatchers had moved it back to its
original entrance position.
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[Diller] argued that she could not be terminated for repositioning the
subject camera, as repositioning cameras was allegedly part of her job
duties, and, thus, [MVH’s] reason for terminating [Diller] was merely pretext.
Again, Plaintiff requested the Security Dispatchers to reposition the camera
to view the Information Desk instead of the entrance, where the subject
camera had been fixed to “Home.” Later, the Dispatchers decided that
they were not comfortable with this maneuver, and moved the camera back
to its original position on the hospital entrance. Once [Diller] discovered
that the camera was back to its “Home” setting, which the Dispatchers did
not have the ability to change, [Diller] instructed [MVH’s] IT vendor to go to
the Dispatch Office and reprogram the camera with a new “Home” setting
on the Information Desk instead of the Hospital’s entrance. When the
Dispatchers discovered this camera change, Ahrns reported [Diller’s]
conduct; and investigation ensued; and [Diller] was terminated. There is
no evidence that [Diller] had the authority within her job duties for her
conduct in the circumstances in this case.
Based on the foregoing, and even construing the evidence in favor
of [Diller], the court finds that reasonable minds could only come to one
conclusion regarding [Diller’s] retaliation claim – that being adverse to
[Diller] – and that [MVH] is entitled to judgment as a matter of law. First,
there is no evidence that [Diller] engaged in a protected activity when she
was repositioning the subject security camera to investigate Davidson’s
time spent at the Information Desk nor is there any evidence [MVH] knew
-22-
of [Diller’s] investigation of Davidson. Second, even if [Diller] set forth
evidence establishing a prima facie case for retaliation, [MVH] set forth non-
retaliatory reasons for [Diller’s] discharge, including that [Diller] was
terminated for engaging in an activity deemed detrimental to the operation
of [MVH], namely that [Diller’s] repositioning of the entrance security camera
compromised the security of the Hospital and the safety of its patrons; that
[Diller’s] actions violated hospital or departmental policies; that [Diller] made
false statements against others; that [Diller’s] actions violated
organizational policies; and that [Diller] mishandled [MVH’s] financial
resources, namely the subject security camera. Finally, since [MVH] set
forth evidence of a legitimate non-retaliatory reason for terminating [Diller],
[Diller] was required to set forth evidence demonstrating that [MVH’s]
reason was merely pretext, which she failed to do. Therefore, [MVH’s]
Motion for Summary Judgment as to [Diller’s] retaliation claim is hereby
SUSTAINED.
{¶ 36} Diller asserts three assignment of error herein. Her first assignment of
error is as follows:
THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT’S
SEXUAL HARASSMENT CLAIM.
{¶ 37} As this Court has previously noted:
Summary judgment may not be granted unless the entire record
demonstrates that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. Civ.R. 56. The
-23-
burden of showing that no genuine issue of material fact exists is on the
moving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio
St.2d 64, 375 N.E.2d 46.
All evidence submitted in connection with a motion for summary
judgment must be construed most strongly in favor of the party against
whom the motion is made. Morris v. First National Bank & Trust Co.
(1970), 21 Ohio St.2d 25, 254 N.E.2d 683. “Because a trial court’s
determination of summary judgment concerns a question of law, we apply
the same standard as the trial court in our review of its disposition of the
motion; in other words, our review is de novo.” Am. States Ins. Co. v.
Guillermin (1996), 108 Ohio App.3d 547, 552, 671 N.E.2d 317.
R.C. 4112.02(A) makes it an unlawful discriminatory practice “[f]or
any employer, because of the * * * sex * * * of any person, * * * 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.” “A plaintiff may establish a violation of R.C. 4112.02(A)’s
prohibition of discrimination ‘because of * * * sex’ by proving either of two
types of sexual harassment: (1) ‘quid pro quo’ harassment, i.e., harassment
that is directly linked to the grant or denial of a tangible economic benefit,
or (2) ‘hostile environment’ harassment, i.e., harassment that, while not
affecting economic benefits, has the purpose or effect of creating a hostile
or abusive working environment.” Hampel v. Food Ingredients Specialties,
Inc. (2000), 89 Ohio St.3d 169, 176, 729 N.E.2d 726.
-24-
Harmon v. GZK, Inc., 2d Dist. Montgomery No. 18672, 2002 WL 191598, *4-5 (Feb. 8,
2002).
{¶ 38} As the trial court noted, Diller’s complaint alleged “hostile environment”
sexual harassment. As this Court further noted in Harmon, at *5:
* * * “In order to establish a claim of hostile-environment sexual
harassment, the plaintiff must show (1) that the harassment was
unwelcome, (2) that the harassment was based on sex, (3) that the
harassing conduct was sufficiently severe or pervasive to affect the ‘terms,
conditions, or privileges of employment, or any matter directly or indirectly
related to employment,’ and (4) that either (a) the harassment was
committed by a supervisor, or (b) the employer, through its agents or
supervisory personnel, knew or should have known of the harassment and
failed to take immediate and appropriate corrective action.” Id. [citing
Hampel at 176-77.]
In Hampel, the court noted that “federal case law interpreting Title VII
of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S. Code,
is generally applicable to cases involving alleged violations of R.C. Chapter
4112.” Id. at 175, 729 N.E.2d 726.
{¶ 39} “In Hampel, the supreme court noted that ‘any harassment or other
unequal treatment of an employee or group of employees that would not occur but for the
sex of the employee or employees may, if sufficiently patterned or pervasive, comprise
an illegal condition of employment.’ ” Hale v. City of Dayton, 2d Dist. Montgomery No.
18800, 2002 WL 191588, * 3 (Feb. 8, 2002).
-25-
{¶ 40} As this Court previously noted, under the third element, “[w]e must consider
the totality of the circumstances: ‘[W]hether an environment is “hostile” or “abusive” can
be determined only by looking at all the circumstances. These may include the frequency
of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.’ ” Hale, *3-4, quoting Hampel, at 180. “Furthermore,
the severity and pervasiveness are to be looked at together so that ‘deficiencies in the
strength of one factor may be made up by the strength in the other.’ [Hampel at 181]. *
* *.” Hale, *4. “* * * [T]he harassing conduct ‘must be severe or pervasive enough to
create both an objectively hostile or abusive work environment – one that a reasonable
person would find hostile or abusive – and a subjectively hostile work environment – one
that the victim perceived to be hostile or abusive.’ * * *.” Id.{¶ 41} As this Court further noted in Hale, *4:
* * * In looking at when harassment becomes severe and pervasive
enough to affect the terms and conditions of employment, courts have set
a high bar. Courts have repeatedly held that isolated incidents, unless
extremely serious, do not constitute a hostile work environment. See, e.g.,
Faragher v. City of Boca Raton (1998), 524 U.S. 775, 788, 118 S.Ct. 2275,
2283, 141 L.Ed.2d 662 (stating that “ ‘simple teasing,’ * * * offhand
comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of
employment’ ”); Morris v. Oldham Cty. Fiscal Court (C.A. 6, 2000), 201 F.3d
784, 790; * * *. * * * Courts have generally only found isolated incidents to
-26-
create a hostile work environment where they involve some form of sexual
assault or touching. See, e.g., Morris, supra (holding that conduct was not
severe or pervasive where co-worker told several dirty jokes in plaintiff’s
presence, made one verbal sexual advance related to plaintiff’s evaluation,
referred to plaintiff once as “Hot Lips,” and made comments about plaintiff’s
dress); Brooks v. City of San Mateo (C.A.9, 2000), 229 F.3d 917, 924
(holding that a single incident of fondling was not severe and pervasive);
Tatum v. Hyatt Corp. (D.D.C. 1994), 918 F.Supp. 5, 7 (holding that conduct
was not severe and pervasive where co-worker wrapped his arms around
the plaintiff, rubbed against her to simulate sex, commented on her looks,
and put a piece of ice down her shirt). But, see, Little v. Windemere
Relocation, Inc. (C.A. 9, 2001), 265 F.3d 903, 911 (holding an incident in
which a [business client] raped plaintiff three times was severe), [opinion
amended and superseded, 301 F.3d 958 (C.A. 9, 2002)]; Guess v.
Bethlehem Steel Corp. (C.A. 7, 1990), 913 F.2d 463, 464 (holding that a
single incident in which plaintiff’s supervisor forced her face against his
crotch was severe). * * *
{¶ 42} Diller’s deposition testimony reflects the following exchange:
Q. You had previously indicated that you had talked to HR about
issues you were having with the chief, correct?
A. That’s correct.
***
Q. What was the nature of the concerns that you had addressed
-27-
with HR?
A. The volatile work environment, the demeaning tone of which
everything was [sic], and also the inappropriate sexual - - inappropriate
sexual comments that he made to me.
Q. And tell me about the inappropriate sexual comment.
A. I was in his office, it was early in the morning, he had come into
work and he was trying to log onto his computer and he couldn’t get it to
open up. He couldn’t remember his password, so I called IT from his desk,
the help desk. I went behind his desk to use his phone because his
computer was here, his phone was here, his chair was here, and there was
a front desk - - he had, like an L-shaped desk - - he was sitting in his chair
and I walked behind his chair to his phone. I was back there viewing his
computer, and I picked up the phone, called the help desk and while I’m on
hold waiting for them to answer, he was sitting like this and he turns and he
looks at me and he gives me this weird, like, strange look and I was like
what, and he said nothing like a good woman behind a good man. At that
point IT came on the phone and I said hang on one quick second, Franklin
Davidson needs you, and I handed the phone to him and I hurriedly walked
out of his office.
Q. Had he made any other, what you considered to be
inappropriate sexual comments or gestures to you at any other point in
time?
A. You know, I made the comment one time about figuring this out
-28-
and growing up and trying to just pull up my big girl panties and every time
that he would talk he would bring that up in general conversation, why don’t
you just pull up your big girl panties.
Q. But that was a term that you had used to him, right?
A. Well, in a conversation that we were having it was off the record,
per se, but, yes, I had used that in a context and I didn’t know it would be
thrown at me every time that he then spoke to me.
Q. Did you tell him you didn’t like him using that term?
A. I just said I thought it was inappropriate.
Q. Do you consider that to be somehow sexual?
A. He was very demeaning and very inappropriate, so from him,
yes.
***
Q. * * * Then he made this pull up your big girl panties comment to
you on a few occasions?
A. Yes.
Q. Anything else that you considered to be sexual harassment?
A. He would look at me in google eyes, just inappropriate.
Q. Well, you have to be more specific. What do you mean by
google eyes?
A. You know, he would just come in and he would be like, hey, how
are you, and just - -
Q. He would raise his eyebrows when he spoke to you?
-29-
A. Yes.
Q. Anything else?
A. Not that I can think of off the top of my head.
***
Q. * * * Did you discuss your concerns with the chief’s management
style with any of your coworkers?
A. Yes. I think it was common knowledge across the police
officers, everyone in our office kind of felt the same way.
When asked if she was investigating a sexual harassment incident involving Davidson
and a female employee, Diller responded, “No, ma’am.”
{¶ 43} Construing the evidence most strongly in favor of Diller, and considering the
totality of the circumstances, we conclude that while Diller makes clear that Davidson’s
conduct was unwelcome, she fails to establish that Davidson’s remarks or actions were
based on sex or so severe or pervasive as to affect her employment. She testified that
Davidson’s management style was “common knowledge across the police officers,
everyone in our office felt the same way” about Davidson’s conduct. In other words,
according to Diller, Davidson’s conduct was demeaning to all employees and not just her.
Further, the comment, “nothing like a good woman behind a good man,” contains no
sexual content, and even if we were to construe the remark as somehow sexual, Diller’s
testimony makes clear that it occurred in a brief, isolated incident, in an offhand manner,
before Diller left Davidson’s office, and we cannot conclude that it was “extremely
serious.” The remark “why don’t you just pull up your big girl panties” also contains no
explicit sexual content, and while Diller alleges that Davidson said it repeatedly, we
-30-
conclude it is at most “a mere offensive utterance” that Diller acknowledges she herself
used in Davidson’s presence prior to Davidson using it. We cannot find that by looking
at Diller “in google eyes” in the course of greeting her, this conduct somehow equates
with a sexual connotation. Furthermore, she did not describe the glance(s) as frequent
conduct, or threatening or intimidating. As the trial court noted, while Diller’s Complaint
provides that she “learned of a potential sexual harassment incident involving Davidson
and a female employee,” Diller clearly testified that she was not investigating Davidson
for sexual harassment. Finally, nothing in Diller’s testimony suggests that Davidson’s
conduct unreasonably interfered with Diller’s work performance. There being no
genuine issue of material fact regarding Diller’s claim of hostile environment harassment,
her first assigned error is overruled.
{¶ 44} Diller’s second assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT’S
RETALIATION CLAIM.
{¶ 45} R.C. 4112.02 provides:
It shall be an unlawful discriminatory practice: * * * (I) 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 had 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.
{¶ 46} As this Court recently noted:
* * * “[T]o prevail on a retaliation claim, a plaintiff must show that
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retaliation is a determinative factor – not just a motivating factor – in the
employer’s decision to take adverse employment action.” Nebozuk v.
Abercrombie & Fitch Co., 10th Dist. Franklin No. 13AP-591, 2014-Ohio-
1600, ¶ 45. See also Univ. of Texas Southwestern Med. Ctr. V. Nassar,
___ U.S. ___, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013).
In retaliation claims under Title VII, 42 U.S.C. 2000e-3(a), which is
analogous to R.C. 4112.02(I), the analysis is whether the protected conduct
* * * was a determinative factor in the retaliatory conduct; in other types of
discrimination claims, the standard is whether the protected conduct or
classification was a “motivating factor” in an adverse employment action.
Nebozuk at ¶ 45, citing Smith v. Ohio Dept. of Pub. Safety, 2013-Ohio-4210,
997 N.E.2d 597, ¶ 59.
A plaintiff may prove a retaliation claim through either direct or
circumstantial evidence. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d
531, 543 (6th Cir. 2008); Nebozuk at ¶ 39. When a plaintiff lacks direct
evidence, he or she may establish retaliation through circumstantial
evidence using the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668(1973); Imwalle at 544; Nebozuk at ¶ 40..
Under the McDonnell Douglas framework, a plaintiff-employee bears
the initial burden of establishing a prima facie case of retaliation. Nebozuk
at ¶ 40, citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct.
2742, 125 L.Ed.2d 407 (1993) and Texas Dept. of Community Affairs v.
-32-
Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To
establish a prima facie case of retaliation under R.C. 4112.02(I), an
employee must establish the following: (1) she engaged in a protected
activity; (2) her employer * * * knew of her participation in protected activity;
(3) [the employer] engaged in retaliatory conduct; and (4) a causal link
existed between the protected activity and the adverse action. Nebozuk at
¶ 40. The establishment of a prima facie case creates a presumption that
the employer-defendant unlawfully retaliated against the employee-plaintiff.
Id.Once an employee establishes a prima facie case, the burden shifts
to the employer to “articulate some legitimate nondiscriminatory reason for”
its action. Id. at ¶ 41, citing Carney v. Cleveland Hts.-Univ. Hts. City School
Dist., 143 Ohio App.3d 415, 429, 758 N.E.2d 234 (8th Dist. 2001) and
Burdine at 252-53, 101 S.Ct. 1089. If the employer carries its burden, then
the burden shifts back to the employee to prove that the employer’s stated
reason is a pretext for discrimination. Id. “An employer may make
employment decisions ‘for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a
discriminatory reason.’ ” Brown v. Renter’s Choice, Inc., 55 F. Supp.2d 788,
795 (N.D. Ohio 1999), quoting Nix v. WLCY Radio/Rahall Communications,
738 F.2d 1181, 1187 (11th Cir. 1984).
Little York Tavern v. Lane, 2d Dist. Montgomery No. 27013, 2017-Ohio-850, ¶ 15-19.
{¶ 47} The following exchange occurred at Diller’s deposition regarding her
-33-
termination:
Q. * * * What is your understanding of the reason for the termination
of your employment?
A. For moving a camera at the lobby.
Q. Did you move the camera at the lobby?
A. I did.
Q. Tell me what happened.
A. I received a phone call, it was voice mail, from an anonymous
number, and the call was anonymous. It just said that they were concerned
with the amount of time that Franklin Davidson was spending with this
female at this desk.
Q. What specifically did the caller say?
A. Just that.
***
Q. Did you report this call to anybody?
A. I did not.
Q. Why not?
A. Because I didn’t want to overstep my bounds. I didn’t want
them to start asking questions before I had answers. There may have
been no real reason to start anything yet.
***
Q. So what did you do after receiving that phone call?
A. I went up and moved the camera in dispatch and the next day I
-34-
went to look at the camera and it had been moved five minutes after I moved
it by a dispatcher.
***
Q. * * * So this camera was a pan-tilt-zoom; what was its function
before you changed it?
A. It had been moved to view the employee entrance and, again, I
was not aware of that either.
Q. Well, when had it been moved to view the employee entrance?
A. At some point Franklin Davidson had instructed the dispatchers
to have it moved there.
Q. Where had it been before that?
A. It always viewed the information desk and it could see that
hallway right there, admissions - - that admissions desk because we always
had vagrant people that would sit right there. There is a payphone there -
- used to be - - and it would view that, as well as the chairs that were along
that wall; we had it viewing those because vagrants would come in and sit
there and act like they were there for a purpose.
{¶ 48} Diller stated that she was told that Davidson wanted the camera on the
employee entrance by Dispatcher Ahrns. She stated that she told the dispatchers that
she “needed to see the activity at that desk” on January 28, 2015. Diller testified that
she “unlocked” the home position on the camera. Diller testified that she did not inform
the dispatchers that she wanted to view Davidson at the desk. Diller stated, “I wanted to
verify that what I was being told was truthful or not. If it wasn’t truthful, then there was
-35-
nothing to take forward to Mikki.” Diller stated that after she realized the camera had
been moved again, she “went back and changed it back, and I don’t even remember if it
was that day or the next couple of days and it only sat there, I think - - I think I homed it
to that position so that it could not be moved and it sat there less than forty-eight hours, I
think, like thirty-six hours.”
{¶ 49} Diller then testified that she asked Eric Gagnon to reposition the camera for
her after she discovered that its focus had been returned to the employee entrance. She
stated that she told him that she wanted to monitor the information desk, and that she did
not tell him that she wanted to monitor Davidson. Diller testified that she was suspended
on a Friday, and that she submitted her written statement to human resources the
following Monday. The following exchange occurred:
Q. Do you recall telling human resources that you had specifically
instructed Eric to move the home location away from the information desk?
A. I don’t remember. No.
Q. Well, that’s the exact opposite of what you’ve been telling me,
correct?
A. Right.
Q. He - - you told him that you wanted it to focus on the information
desk, correct?
A. Correct.
Q. * * * So you would not have told human resources that you
instructed him to move it away from the information desk, correct?
A. I don’t think so.
-36-
Q. Well, that would’ve been a false statement, right?
A. Right.
{¶ 50} Diller stated that prior to asking Gagnon to change the home setting on the
camera that she added home settings to other cameras “[n]o less than twenty times.”
Diller stated that she did not consider whether her conduct could undermine MVH’s
security system or jeopardize employee or patient safety “because it did not.”
{¶ 51} The following exchange occurred:
Q. Do you think there’s anything inappropriate about what you did
considering that the reason for doing it was to catch your boss doing
something wrong?
A. I wasn’t trying to catch him doing anything wrong; I was trying to
find out if someone’s accusation was correct or false.
Q. And that’s trying to find out whether he was doing something
wrong, correct?
A. It’s an investigation.
Q. * * * An investigation that you have no authority to conduct,
correct?
A. Those are my cameras and so I was able to move those cameras
to that position, yes.
Q. What is the proper protocol for an employee if there is a
complaint with respect to inappropriate conduct by an employee, to whom
are you supposed to report that?
A. I don’t know.
-37-
Q. Human resources, what is human resources’ function to your
knowledge?
A. Human resources is there for the employee and I had been to
human resources and nothing was being done.
{¶ 52} The following further exchange occurred regarding the camera:
Q. Did you ever personally change the home setting on that
camera?
A. Yes.
Q. When did you do that?
A. I’ve done that multiple times throughout my employment.
Q. Did you do it after you asked Eric to focus it on the information
desk?
A. I don’t recall.
Q. Did you change it back so that it was focused to where it was
supposed to be focused, on the employee entrance?
A. Yes.
Q. When did you do that?
A. Like thirty-six hours after I moved it initially.
Q. Why did you do that?
A. Just because it needed to go back there, that’s where he wanted
it so that’s where I put it.
Q. That’s where who wanted it?
A. Franklin.
-38-
{¶ 53} Finally, the following exchange occurred regarding Diller’s written
statement:
Q. Let me hand you Exhibit 2. Is that the statement that you
testified about earlier that you prepared after you were suspended?
A. Yes, and I was incorrect in what I had told you.
Q. About what?
A. I did ask Eric to get a view of that desk as well as the surrounding
areas and he said that he couldn’t get the camera position so then he said
it was just the desk and that is when I told him to move that camera back to
its original position, that’s why it was moved. I apologize.
Q. Well, so did you tell Eric that you wanted the camera to be
homed at the desk?
A. I wanted a view of that desk and its surrounding areas, yes, but
- - yes, at the desk.
Q. Okay.
A. It used to have that view.
Q. Then according to this statement you then told HR that you - -
that the next day you were told that it was not a good view, that it was sitting
on the desk and I immediately told the tech I did not want it on the desk and
he instructed me how to take it off a home position.
A. Correct.
Q. * * * That’s totally different from what you testified to earlier, is it
not?
-39-
A. I was inaccurate, yes.
{¶ 54} In addition to her testimony about investigating Davidson, Diller testified
about reporting Davidson’s conduct to Clancy. Diller testified that on one occasion,
Davidson advised her to text him if she left the facility, that she texted him that day when
she returned from picking up lunch, and that when he observed her in the kitchenette
eating, “he said are you going to text me when you go to the bathroom, too.” Diller stated
that one day when she, Davidson and other coworkers were “walking the floor,” Davidson
advised her to “keep my mouth shut and let him do all of the talking,” and that he directed
her on taking notes. According to Diller, “it was in front of everyone - - it was very
demeaning.” Diller testified as follows:
He would never call me by my name. Instead of calling me Noelle
he would call me Lenel, L-E-N-E-L, because that was our door access
system, and once it got to be about six months or so I just laughed and said,
sir, would you start calling me Noelle and not Lenel because if it doesn’t
stop you’re going to owe me a candy bar every time you do it and so, you
know, we kind of laughed about it and he was like, oh, I’m sorry, I’m really
bad with names; but he walked by my office every day, I was one door down
from him and my name was on my office door, so you know it was a matter
of respect, and so he would not even call me by then, hey, could you come
down here, he would say, hey, come down here. He would never call me
by my name.
{¶ 55} Diller testified that she emailed her concerns to Mikki Clancy after Clancy
requested input within Davidson’s first 90 days of employment. Finally, the following
-40-
exchange occurred regarding Diller’s communication with Clancy:
Q. Let me hand you what is marked as Exhibit I. Do you recognize
this document as an email exchange that you had with Mikki Clancy and
then you forwarded it to your spouse?
A. Yes.
Q. * * * Aside from this document, did your provide Ms. Clancy with
any other information in writing relating to your concerns about the chief?
A. Not to my knowledge. I can’t honestly remember whether I did
or not.
{¶ 56} The email exchange reflects that on September 22, 2014, Diller emailed
Clancy about Davidson, describing him as “pompous and demeaning.” She advised
Clancy about the incident where Davidson said, “nothing like a good woman standing
behind a good man,” as well as the bathroom comment after she texted Davidson that
she had returned from lunch, and the comments made during the walkthrough of the
surgery floor. She described “what feels to be a very volatile and hostile work
environment.” On October 1, 2014, Clancy sent Diller an email thanking her for sharing
her concerns and stating, “I would like to touch base with you in five-six weeks to see if
the coaching and mentoring is improving the environment.”
{¶ 57} Construing the evidence most strongly in favor of Diller, we conclude that
MVH is entitled to summary judgment as a matter of law. There is no evidence in the
record that Diller’s conduct in investigating Davidson was protected activity or that MVH
management was aware that Diller was engaged in any protected activity. Diller
specifically denied in her deposition that she was investigating Davidson for sexual
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harassment. Diller’s testimony that she was investigating Davidson for the amount of
time he spent at the desk, and not for sexual harassment, is consistent with Miles’ affidavit
that Diller never alleged that Davidson engaged in sexual harassment, and with Ahrns’
affidavit stating that Diller wanted to catch Davison “hanging around” the desk. As MVH
asserts, a “supervisor’s wasting time at work is neither discriminatory nor unlawful.”
{¶ 58} Further, Diller’s complaints to Clancy do not indicate that she was objecting
to unlawful discriminatory conduct based upon her sex. See Balding-Margolis v.
Cleveland Arcade, 352 Fed.Appx. 35, 45 (6th Cir.2009) (holding that plaintiff did not
engage in protected activity under Title VII or R.C. Chapter 4112, where she made
“several complaints to * * * management concerning general work-related issues * * * but
there is nothing in these complaints indicating that [plaintiff] was objecting to
discriminatory conduct against her based on her membership in a protected class.”)
{¶ 59} Finally, we cannot conclude that MVH terminated Diller for a discriminatory
reason. Diller acknowledged the presence of vagrants by the hospital entrance that the
hospital monitored, Ahrns and Miles averred that she compromised MVH’s security
system by diverting the camera, and her termination form provides nondiscriminatory
reasons why she was terminated. For the foregoing reasons, Davidson’s second
assignment of error is overruled.
{¶ 60} Diller’s third assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT SUSTAINED APPELLEE’S
MOTION TO STRIKE THREE VITAL EXHIBITS.
{¶ 61} As noted above, Exhibit B is a summary of a meeting with Dispatcher
Angela Cupp, Exhibit C is the email exchange between Diller and Clancy, and Exhibit D
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is the “Position Summary” for Diller’s former job. Diller asserts that “it seems
disingenuous for [MVH] to assert that these documents are not authentic or properly
identified, but in any event are hospital records and produced by [MVH].” According to
Diller, “it was clear error to strike these exhibits, which were critical in demonstrating that
Appellant had communicated with Mikki Clancy regarding Davidson making the statement
that behind every good man is a good woman; an email from Andrea Tuttle advising why
Diller was moving the cameras and her job description which clarified her responsibilities
over the security camera system.” MVH responds that the documents are business
records that were not properly authenticated by Diller.
{¶ 62} “A trial court’s decision to grant or overrule a motion to strike is within its
sound discretion and will not be overturned on appeal absent a showing of abuse of
discretion.” Kennedy v. Merck & Co., Inc., 2d Dist. Montgomery No. 19591, 2003-Ohio-
3774, ¶ 42. As this Court has noted:
* * * “Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeons,
Inc., 19 Ohio St.3d 83, 482 N.E.2d 1248 (1985). A decision is unreasonable
if there is no sound reasoning process that would support that
decision. AAAA Enterprises, Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990).
Feldmiller v. Feldmiller, 2d Dist. Montgomery No. 24989, 2012-Ohio-4621, ¶ 7.
{¶ 63} Civ.R. 56 (C) provides in part that “Summary Judgment shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact * * * show that there is
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no genuine issue as to any material fact.” Civ.R. 56(E) provides: “Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated in the affidavit. Sworn or certified copies of all papers or
parts of papers referred to in an affidavit shall be attached to or served with the affidavit.”
{¶ 64} We find that the trial court erred in striking Diller’s three exhibits. Counsel
for Diller eventually attached an affidavit stating that the documents were supplied in
discovery by MVH. Although the documents were not self-authenticating under Evid.R.
902, they were properly authenticated by testimony that they were documents that had
been requested from and provided by the opposing party during discovery. Stumpff v.
Harris, 2015-Ohio-1329, 31 N.E.3d 164, ¶ 32 (2d Dist.).
{¶ 65} This is not to say that everything produced in discovery should
automatically be deemed to be impliedly or implicitly authenticated. Id., ¶ 38. However,
considering the totality of circumstances surrounding the documents’ production, they
should have been utilized by the court in ruling on the motion for summary judgment.
{¶ 66} However, we cannot find that the trial court erred in granting summary
judgment, since the facts contained in the documents were either not in dispute, were
otherwise part of the record, or were not relevant to the summary judgment decision. This
assignment of error is overruled, and the judgment of the trial court is affirmed.
.............
FROELICH, J. and TUCKER, J., concur.
Copies mailed to:
David M. Duwel
Karen T. Dunlevey
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Hon. Mary Katherine Huffman