Hinton v. Ohio Dept. of Youth Servs.

[Cite as Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-1598.]
ROGER HINTON, et al. Case No. 2021-00063JD
Plaintiffs Judge Patrick E. Sheeran
Magistrate Gary Peterson
v.
DECISION
OHIO DEPARTMENT OF YOUTH
SERVICES, et al.
Defendants
{¶1} Pursuant to L.C.C.R. 4(D), Defendants’ motion for summary judgment is now
before the Court for a non-oral hearing. For the reasons stated below, the Court GRANTS
the motion.
Standard of Review
{¶2} Motions for summary judgment are reviewed under the standard set forth in
Civ.R. 56(C), which states, in part:
Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to summary judgment as a matter of law.
No evidence or stipulation may be considered except as stated in this rule.
A summary judgment shall not be rendered unless it appears from the
evidence or stipulation, and only from the evidence or stipulation, that
reasonable minds can come to but one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence or stipulation construed
most strongly in the party’s favor.
Case No. 2021-00063JD -2- DECISION
“[T]he moving party bears the initial responsibility of informing the trial court of the basis
for the motion, and identifying those portions of the record before the trial court which
demonstrate the absence of a genuine issue of material fact on a material element of the
nonmoving party’s claim.” Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264(1996). To meet this initial burden, the moving party must be able to point to evidentiary
materials of the type listed in Civ.R. 56(C). Id. at 292-293.
{¶3} If the moving party meets its initial burden, the nonmoving party bears a
reciprocal burden outlined in Civ.R. 56(E), which states, in part:
When a motion for summary judgment is made and supported as provided
in this rule, an adverse 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. If the party does not so respond, summary
judgment, if appropriate, shall be entered against the party.
Factual Background
{¶4} Plaintiffs Denise Guess and Roger Hinton bring claims for employment
discrimination based on race, including wrongful termination, hostile work environment,
and retaliation, against Defendants Department of Youth Services (DYS) and Department
of Rehabilitation and Correction (DRC) as a result of various incidents that led to their
involuntary disability separation. Since 1991, Plaintiffs have been employed with DYS
and have held various positions. Plaintiff Guess, an African American female, became
an Infrastructure Specialist I for DYS in 2013. Plaintiff Hinton, an African American male,
became an Information Technologist 3 for DYS in 2016. At the time of their disability
separation, Plaintiffs worked at the Information Technology (IT) Help Desk (the help desk)
as a part of a services project that Defendants shared. Guess Depo., p. 40, 45, 61-62;
Hinton Depo., p. 34-36, 60-61, 95, 100.
Case No. 2021-00063JD -3- DECISION
{¶5} The help desk was set up in an area occupied by DRC and Plaintiffs worked
alongside other staff that were either employed by or contracted with DRC. Id. The help
desk has nine staff members: six DRC employees, including Chris McCoy, Tim Fornal,
Jimmy Long, Noral Cohen, Braeden Ramge, and Steve Rayburn; two DYS employees,
Guess and Hinton; and one contractor, Tyler Thompson (formerly Tyler Gilchrist). Guess
Depo., 136; Hinton Depo., p. 168; Cavendish Depo., p. 9-11. Thompson, a mixed-race
female, is an employee of Sophisticated Systems who is contracted by DRC to staff the
help desk. Thompson Depo., p. 8-9, 19. The five DRC help desk employees are white
males. Hinton Depo., Ex. G; Guess Depo., p. 136, 146, 168. Although this shared project
required agency collaboration, Defendants maintained separate supervisory staff, human
resources departments, and management policies and procedures. Guess Depo., p. 66-
68; Hinton Depo., p. 57-58, 101. Accordingly, Plaintiffs were subject to DYS policies and
procedures. Id. Hinton Depo., p. 57-58, 101; Guess Depo, p. 66-68, 85-86. Likewise,
the DRC employees were subject to DRC policies and procedures. Hinton Depo., p. 53-
58, 95-98, 100-101; Guess Depo., p. 85-86.
{¶6} Prior to being assigned to the help desk, Guess traveled between the
institutions, Central Office, and the regional offices to work on computers. Guess Depo.,
p. 42. In 2016, DYS investigated and disciplined Guess due to her sick leave balance.
Guess Depo., p. 14. Because Guess was aware that a male coworker had a similar sick
leave balance and was not investigated or disciplined, she filed a complaint with the Ohio
Civil Rights Commission (OCRC) on February 22, 2017. Complaint, ¶ 14-15; Guess
Depo., p. 54-58. Ultimately, the written discipline was removed from Guess’ personnel
file as the result of an agreement. Id. at 60. Thereafter, on February 27, 2017, DYS gave
“Guess a written coaching for ‘attendance and dependability’ issues.” Complaint, ¶ 16.
{¶7} In July 2018, Guess was assigned to the help desk. Guess Depo., p. 47. On
January 17, 2019, Linda Diroll, DRC’s IT Delivery Service Chief who served as the help
Case No. 2021-00063JD -4- DECISION
desk manager, issued Guess a written coaching1 for working 0.10 hours overtime without
prior authorization. Id. at 86-89; Hinton Depo., p. 44; Defendants’ Motion for Summary
Judgment, p. 4. While Guess acknowledges she knew that working unauthorized
overtime is a violation of DYS policy, she was not aware at the time that she had worked
over forty hours in the week. Id. at 87-88. According to Guess, other white, male help
desk staff—specifically, Steve, Tim, and Jimmy—told her that they had worked overtime
before and were not disciplined for it. Id. at 90-92. However, Guess acknowledged that
she is not familiar with DRC’s policies or employee handbook. Id. at 68. Additionally,
Guess was aware of other DYS employees, who were not staffed at the help desk, who
had worked overtime before and were not disciplined for it. Id. at 90-92. However, Guess
acknowledged that she neither knew whether they had prior authorization for working
overtime nor who was involved in these employees’ supervision as it related to
timekeeping or discipline. Id. at 91-92. Guess filed a grievance regarding the written
counseling, but it was not heard. Id. at 97.
{¶8} In January 2019, Guess received a traffic violation for operating a vehicle
under the influence (OVI). Id. at 101. In February 2019, Guess took leave on two
occasions to attend court dates associated with the OVI. Id. at 100-101, 119-120. While
she requested the days off in advance and used leave to do so, she did not provide a
reason for taking the time off. Id. at 100-101.
{¶9} Thereafter, Guess approached Diroll about needing future time off every
Tuesday for a court-related matter. Id. at 97-99. Diroll refused to allow Guess time off
without a court order. Id. at 97-98. Guess attempted to obtain a court order, but she was
unable to do so. Id. at 99. Although it was not a court order, Guess showed Diroll
alternative documentation to demonstrate that she was in court. Id. at 97-98. When Diroll
continued to deny her time off, Guess went to her DYS supervisors to whom she
1While Guess acknowledges that a written coaching is not formal discipline, she contends “it puts
you on the discipline grid” and subsequent issues would result in formal discipline. Guess Depo., p. 80.
Case No. 2021-00063JD -5- DECISION
explained why she needed to take future leave. Id. at 105-108. Scott Welsh, DYS
Network Supervisor, approved Guess’ request for future use of leave subject to
stipulations regarding the timeframe in which Guess could have the leave, which was
written on a coaching form. Id.
{¶10} Shortly after that, Guess was informed that she was being investigated for
reasons related to her OVI. Id. at 108-111. On March 19, 2019, Guess was provided
formal notice that she needed to attend a pre-disciplinary meeting for failing to receive a
manager’s approval for using leave to defend a court action. Id. at 115-120, Ex. O. While
Guess does not dispute that the policy exists and that she violated it, she contends that
she was not aware at the time that a policy required her to disclose why she was using
her personal leave. Id. at 119-120. However, Guess recognizes that she signed off on
having reviewed DYS’ policies. Id. at 120. Additionally, while Guess acknowledges she
was adequately represented during the investigation, she believes Diroll initiated the
investigation due to racial bias against her. Id. at 124-126.
{¶11} Prior to being assigned at the help desk, Hinton performed bargaining-unit
work at various DYS locations. Hinton Depo., p. 43-45. On October 1, 2018, Hinton
began his assigned duties at the help desk. Id. at 42. On October 18, 2018, Harvey
Reed, DYS Director, sent an email to DYS IT employees explaining that employees were
“required to punch in and/or out when leaving the building.” Id. at 78-79, Ex. D. On
December 6, 2018, after returning from a lunch break, Hinton attempted to clock back in
using his work badge; however, Kronos, DYS’ time-keeping system, would not accept his
badge. Id. at 64-65. Hinton manually went into Kronos and entered his time using the
time editor feature. Id. at 66-67, 98. In February 2019, Hinton learned that there was an
investigation relating to his unauthorized manual entry of time. Id. at 70-74. Thereafter,
Hinton received formal notice of a pre-disciplinary hearing that was later cancelled. Id. at
213. Hinton contends that his white, male help desk coworkers—specifically, Chris,
Steve, and Tim—have manually entered their time and were not investigated. Id. at 94-
Case No. 2021-00063JD -6- DECISION
99. However, Hinton acknowledges that he is not familiar with DRC policies with respect
to time keeping, breaks, or taking leave. Id. at 58.
{¶12} In January 2019, Jeff Cavendish, a DRC Infrastructure Specialist 3 who also
managed the help desk, received complaints from DRC help desk employees about
Plaintiffs’ workplace conduct. Cavendish Depo., p. 15-16, 36. Cavendish consulted Diroll
concerning the complaints and she advised him to hold a meeting with the help desk
employees about how to formally document grievances. Id. On February 26, 2019,
Cavendish held a meeting with Chris, Noral, Braeden, Steven, Jimmy, and Tim (the
meeting). Cavendish Depo., p. 31-33; Guess Depo., p. 133; Hinton Depo., p. 167-169.
During the meeting, Cavendish informed those in attendance that if they had workplace
complaints that they felt warranted further investigation, then they would need to complete
an incident report. Cavendish Depo., p. 34.
{¶13} When Cavendish initiated the meeting, he called the help desk employees
he saw present at their desks into the computer lab. Id. at 31-34. At the time, Thompson
was not at her desk. Cavendish Depo., p. 31-33; Guess Depo., p. 134; Hinton Depo., p.
168. While Cavendish states he did not see Plaintiffs sitting at their desk at the time he
announced the meeting, Plaintiffs contend they were at their desks and witnessed
Cavendish gather Chris, Braeden, Steven, Noral, Jimmy, and Tim for the meeting.
Cavendish Depo., p. 32-33; Guess Depo., p. 133; Hinton Depo., p. 167-169. While
Cavendish felt it was important that as many of the help desk employees were present,
the meeting was impromptu in nature because he had other meetings to attend that day.
Cavendish Depo., p. 31-34, 36-37. Cavendish did not hold a subsequent meeting with
Plaintiffs or Thompson. Id. at 36.
{¶14} According to Guess, Cavendish had only held one prior meeting when he
became supervisor, which included all the help desk employees. Guess Depo., p. 134.
Plaintiffs do not have any personal knowledge of what prompted or occurred during the
February 26, 2019 meeting. Guess Depo., p. 139, Hinton Depo., p. 173-175. At the time
Case No. 2021-00063JD -7- DECISION
of the meeting, Plaintiffs assumed it pertained to DRC matters because the meeting
involved only DRC employees. Guess Depo., p. 133; Hinton Depo., p. 168-169. After
the meeting, McCoy informed Thompson, who returned to her desk moments before the
meeting concluded, that Cavendish instructed help desk employees to complete an
incident report any time there was an issue with Guess or Hinton. Thompson Depo., p.
25-26. Thompson did not perceive that she was excluded from the meeting because she
was an ethnic minority; however, she believes that the meeting created a “war” where the
help desk employees “went back and forth filing reports on each other.” Id. at 27-30.
{¶15} According to Guess, Thompson relayed to her the information that McCoy
told Thompson about the meeting. Guess Depo., p. 137-138. Guess then informed
Hinton of the same. Id. at 138. According to Plaintiffs, Wayne Patrick “Pat” Morgan, a
DYS Labor Relations Officer, thereafter informed them that the other help desk
employees had made statements against them and instructed them to make a written
statement. Hinton Depo., p. 189-190; Guess Depo., p. 144-145; Morgan Depo., p. 8, 11.
Thereafter, Plaintiffs submitted written statements. Hinton Depo., p. 187-190, Ex. G.;
Guess Depo., p. 143-144, 154, Ex. G. Guess submitted one statement which alleged
that the meeting created a hostile work environment because “all white males” were
instructed to report incidents about her and Hinton, the only two black help desk
employees, and the only additional minority coworker, Thompson, was also excluded. Id.
Hinton submitted three statements which alleged that offensive discussions—such as
discussing the topics of “gun control, homophobia, abortion, lynching, and the use of
profanity”—disrupted the workplace, the February 26, 2019 meeting created a hostile
work environment, and that Diroll and Cavendish allowed the DRC help desk employees
get away with theft of time. Id.
{¶16} On March 20, 2019, Guess informed Hinton that she was going to contact
the Employee Assistance Program (EAP). Guess Depo., p. 145-146. Guess explained
to EAP that she was feeling discriminated against, she was afraid she was going to be
Case No. 2021-00063JD -8- DECISION
fired for issues related to her unauthorized overtime and use of leave, and she could not
handle the workplace environment anymore. Id. Thereafter, Hinton contacted EAP and
explained that he was regularly being investigated and harassed by his employer and he
was under constant stress trying to get someone to listen to what is going on in the work
environment. Hinton Depo., p. 23-25. Plaintiffs left work that same day following their
discussion with EAP and have not returned. Hinton Depo., p. 23-25, 215; Guess Depo.,
p. 117, 145-146. Guess was involuntarily separated from employment due to disability
on September 1, 2019. Guess Depo., p. 38. Hinton was involuntarily separated from
employment due to disability on October 13, 2019. Hinton Depo., p. 16-17. Plaintiffs
have not requested reinstatement. Guess Depo., p. 15; Hinton Depo., p. 17.
Discussion
{¶17} Plaintiffs allege that, since being tasked to staff the help desk, Defendants
have subjected them to unwarranted discipline to which their white coworkers were not
subjected. Plaintiffs further assert that the February 26, 2019 meeting constituted racial
harassment thereby creating a hostile work environment. Additionally, Plaintiff Guess
contends that DYS retaliated against her when it issued her a written coaching soon after
she filed a complaint with OCRC in 2017. As a result, Plaintiffs bring claims for
employment discrimination based on race, hostile work environment, and retaliation in
violation of R.C. 4112. In its motion, Defendants argue that they are entitled to judgment
as a matter of law on Plaintiffs’ disparate treatment and hostile work environment claims
because Plaintiffs cannot establish their prima facie case for either claim. Additionally,
Defendants argue that Guess’ retaliation claim against DYS is time-barred.
Racial Discrimination
{¶18} R.C. 4112.02 provides, in pertinent part, that: “It shall be an unlawful
discriminatory practice: (A) For any employer, because of the race * * * [or] national origin
Case No. 2021-00063JD -9- DECISION
* * * of any person, * * * to discriminate against that person with respect to hire, tenure,
terms, conditions, or privileges of employment, or any other matter directly or indirectly
related to employment.” It is well-established that “discrimination actions under federal
and state law each require the same analysis.” See Ray v. Ohio Dept. of Health, 2018-
Ohio-2163, 114 N.E.3d 297, ¶ 22 (10th Dist.), citing Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196, 421 N.E.2d
128 (1981); Little Forest Med. Ctr. v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607, 609-
610, 575 N.E.2d 1164 (1991). Accordingly, “Ohio courts may look to both federal and
state courts’ statutory interpretations of both federal and state statutes when determining
the rights of litigants under state discrimination laws.” Id. To prevail, Plaintiffs must
“present[] evidence, of any nature, to show that an employer more likely than not was
motivated by discriminatory intent.” Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d 578, 664
N.E.2d 1272 (1996), paragraph one of the syllabus; see also Kline v. Tennessee Valley
Auth., 128 F.3d 337, 348-349 (6th Cir.1997) (“The direct evidence and circumstantial
evidence paths are mutually exclusive; a plaintiff need only prove one or the other, not
both. If a plaintiff can produce direct evidence of discrimination then the McDonnell
Douglas-Burdine paradigm is of no consequence. Similarly, if a plaintiff attempts to prove
its case using the McDonnell Douglas-Burdine paradigm, then the party is not required to
introduce direct evidence of discrimination.”). Plaintiffs do not present any direct evidence
of discriminatory intent. See Smith v. Superior Prod., LLC, 2014-Ohio-1961, 13 N.E.3d
664, ¶ 16 (10th Dist.) (“Direct evidence of discrimination is evidence of any nature, which
if believed, is sufficient by itself to show the employer more likely than not was motivated
by discriminatory animus in its action.”)
{¶19} Absent direct evidence, Plaintiffs bear the initial burden of establishing a
prima facie case of racial discrimination. Hall v. Ohio State Univ. College of Med., 10th
Dist. Franklin No. 11AP-1068, 2012-Ohio-5036, ¶ 13-14. Under the disparate treatment
theory, Plaintiffs must show that “(1) he or she is a member of a protected class; (2) he
Case No. 2021-00063JD -10- DECISION
or she suffered an adverse employment action; (3) he or she was qualified for the position
in question; and (4) the employer treated a non-protected, similarly-situated person more
favorably.” Id. at ¶ 13-15. Defendants argue that Plaintiffs cannot establish that
Defendants treated a non-protected, similarly-situated person more favorably. The Court
agrees.
{¶20} To show that a coworker is “similarly-situated”, “the individuals with whom
the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor,
have been subjected to the same standards and have engaged in the same conduct
without such differentiating or mitigating circumstances that would distinguish their
conduct or the employer’s treatment of them for it.” Brehm v. Macintosh Co., 10th Dist.
Franklin No. 19AP-19, 2019-Ohio-5322, ¶ 39 (citations omitted). Plaintiffs allege
experiencing disparate treatment for separate issues each had related to their
timekeeping and for being excluded from the February 26, 2019 meeting.
{¶21} Hinton admits that he manually entered his time using Kronos’ time editor
feature without prior authorization. Hinton seeks to compare himself to that of several
other help desk employees, specifically the white, male DRC employees. Assuming it is
true that these coworkers manually entered their time without facing discipline, there is
no evidence that they did so using the time editor feature or without prior authorization.
Furthermore, these coworkers are all DRC employees and Hinton acknowledges that
DRC has separate disciplinary procedures of which he is unfamiliar.
{¶22} Additionally, Guess admits to having worked overtime without prior
authorization. Initially, Guess seeks to compare her behavior to that of several other help
desk employees, specifically the white, male DRC employees. Assuming it is true that
these coworkers had worked overtime without facing discipline, there is no evidence that
they did so without prior authorization. Moreover, as already stated, these coworkers are
all DRC employees, and Guess also acknowledges that DRC has separate disciplinary
procedures of which she is unfamiliar.
Case No. 2021-00063JD -11- DECISION
{¶23} Next, Guess seeks to compare herself to other DYS employees. However,
there is no evidence regarding the specific circumstances under which these DYS
employees were able to work overtime. Also, Guess acknowledges that these employees
do not deal with the same supervisor as her. Moreover, in addition to being similarly-
situated, these DYS employees must be non-protected individuals and the record is void
of any evidence regarding their status as protected or non-protected individuals.
{¶24} Regarding Guess’ unauthorized use of leave for a court-related matter, she
has not purported that a non-protected, similarly-situated person engaged in the same
conduct and was treated more favorably.
{¶25} Additionally, Plaintiffs contend that, because of their race, they were
excluded from the February 26, 2019 meeting held with all of the white, male help desk
employees. However, all the individuals who attended the meeting were DRC
employees, while Plaintiffs are DYS employees. At the time the meeting took place,
Plaintiffs assumed they were not included in the meeting because they were DYS
employees. Additionally, Plaintiffs acknowledge that DRC and DYS employees have
different supervisors and are governed by separate policies and procedures.
{¶26} Assuming arguendo that Plaintiffs could establish their prima facie cases,
they have failed to show how Defendants’ legitimate explanation for its conduct is pretext
for discrimination. See Hall at ¶ 15 (“Once a plaintiff demonstrates a prima facie case,
the employer is required to set forth some legitimate, non-discriminatory basis for its
action. If the employer meets its burden, a plaintiff must be afforded an opportunity to
prove by a preponderance of the evidence that the legitimate reasons the employer
offered were not its true reasons for its actions but were a pretext for discrimination. The
ultimate burden of persuasion always remains with the plaintiff.”). “At the summary
judgment stage, the issue is whether the plaintiff has produced evidence from which a
jury could reasonably doubt the employer’s explanation.” Chen v. Dow Chem. Co., 580
F.3d 394, 400, fn.4 (6th Cir.2009). A reason cannot be proved to be a pretext for
Case No. 2021-00063JD -12- DECISION
discrimination unless it is shown both that the reason was false, and that discrimination
was the real reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).
{¶27} Defendants investigated and initiated disciplinary measures against Plaintiffs
because they each violated DYS policies related to their respective conduct. Both Hinton
and Guess acknowledge that they engaged in the conduct for which they were
investigated. Moreover, neither Hinton nor Guess dispute that they violated a work rule.
{¶28} Additionally, Defendants conducted the February 26, 2019 meeting to
instruct help desk employees on how to formally report complaints, which was held in
response to Cavendish having received various informal complaints. While Cavendish
recognizes that those informal complaints were about Plaintiffs, Plaintiffs point to no
evidence that those informal complaints were based on race. Moreover, Plaintiffs provide
insufficient evidence to reasonably conclude that they were excluded from the meeting
because of their race. As stated above, all the employees who attended the meeting
were DRC employees. At the time the meeting took place, Plaintiffs assumed they were
not included in the meeting because they were not employed by DRC, not because of
race.
{¶29} Moreover, Plaintiffs have no personal knowledge of what went on during the
meeting. Plaintiffs did not form their opinion that the meeting was motivated by racial
discrimination until after the fact. However, Plaintiffs’ only knowledge of the meeting
comes through layers of hearsay, which show, at most, that the meeting concerned
complaints about Plaintiffs’ workplace conduct. Plaintiffs conclude that the meeting was
racially motivated solely because only white males were in attendance. These conclusory
opinions are an insufficient basis on which the Court can find that Defendants’ legitimate
explanation is pretext for racial discrimination. See Mitchell v. Toledo Hosp., 964 F.2d
577, 585 (6th Cir.1992).
{¶30} Although Plaintiffs bring their claims together in attempt to show a pattern of
discrimination, they provide insufficient evidence from which the Court could reasonably
Case No. 2021-00063JD -13- DECISION
doubt Defendants’ legitimate reasons for either initiating disciplinary measures or
conducting the meeting. In short, Plaintiffs do not meet their burden to demonstrate that
there is a genuine dispute of material fact. Therefore, Defendants are entitled to judgment
as a matter of law on Plaintiffs’ racial discrimination claim.
Hostile Work Environment
{¶31} To prevail on a claim for “hostile work environment created by racial
harassment, the plaintiff must establish: (1) the employee was a member of the protected
class; (2) the harassment of the employee was unwelcome; (3) the harassment
complained of was based on race; (4) the harassment had the effect or purpose of
unreasonably interfering with the employee’s work performance or of creating an
intimidating, hostile, or offensive work environment; and (5) respondent superior
(employer) liability.” Chapa v. Genpak, LLC, 10th Dist. Franklin No. 12AP-466, 2015-
Ohio 897, ¶ 33. Plaintiffs contend that Defendants promoted a hostile work environment
created by allowing inappropriate discussions and language in the workplace and
facilitating racially-exclusive meetings and disparate discipline of minority employees,
which amounted to racial harassment. Defendants argue that Plaintiffs cannot show that
the harassment of which they complain was based on race or that any alleged harassment
was severe enough to create a hostile work environment. The Court agrees.
{¶32} When determining whether the harassment created an intimidating, hostile
or offensive work environment, a court must consider the totality of the circumstances,
including “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether its
physically threatening or humiliating, or a mere offensive utterance; and (4) whether it
unreasonably interferes with the employee’s work.” Chapa at ¶ 34. The purpose of these
standards is to “filter out complaints which attack ‘the ordinary tribulations of the
workplace, such as the sporadic use of abusive language, gender-related jokes, and
occasional teasing.’” Id. at ¶ 35.
Case No. 2021-00063JD -14- DECISION
{¶33} Hinton complains of workplace discussions about “gun control, homophobia,
abortion, lynching, and the use of profanity.” Initially, the Court notes that Plaintiffs’ only
evidence that these discussions amount to racial harassment is because they were made
by their white coworkers. Even assuming these discussions did occur as alleged, this is
insufficient evidence to conclude that they were based on race. Moreover, based on the
evidence presented, the Court concludes that such discussions are no more than the
ordinary tribulations of the workplace and are not severe enough to constitute
harassment. Any comments that could arguably amount to harassment did not happen
with any notable frequency, pose any physically threat or humiliation to Plaintiffs, and did
not unreasonably interfere with Plaintiffs’ work.
{¶34} Additionally, Plaintiffs contend that the February 26, 2019 meeting created a
hostile work environment. While it appears that this meeting may have caused some
disruption to the workplace environment, it was minor in nature. For instance, employees
going back and forth making complaints about one another is not a severe enough
disturbance to constitute harassment. Furthermore, although it is not disputed that this
meeting had only the white, male employees in attendance, this scenario only occurred
one time. Indeed, this was the second of two meetings that Cavendish held with help
desk employees and Plaintiffs were included in the first.
{¶35} Moreover, the Court again notes that Plaintiffs’ evidence that this meeting
was based on race is that only white males were in attendance. However, Plaintiffs did
not initially take offense to being excluded from the meeting—or believe such exclusion
was based on race—at the time it occurred, as they assumed it was because they were
from a separate agency than Cavendish and all those who attended the meeting. Even
viewing the facts in a light most favorable to Plaintiffs, the Court finds that the
circumstances were not severe enough to constitute harassment and there is insufficient
evidence to conclude any alleged conduct was based on race. Therefore, there are no
Case No. 2021-00063JD -15- DECISION
genuine issues of material fact and Defendants are entitled to judgment as a matter of
law on Plaintiffs’ hostile work environment claim.
Retaliation
{¶36} Plaintiff Guess brings a claim of retaliation as the result of DYS issuing her
a written coaching on February 27, 2017, shortly after she filed a discrimination complaint
with the OCRC. Generally, “civil actions against the state * * * shall be commenced no
later than two years after the date of the accrual of the cause of action or within any
shorter period that is applicable to similar suits between private parties.” R.C. 2743.16(A).
Discrimination claims against the state under R.C. 4112 are subject to the two-year
statute of limitations period set forth in R.C. 2743.16(A). Hostacky v. Ohio Dept. of Rehab.
& Corr., 10th Dist. Franklin No. 21AP-349, 2021-Ohio-4464. In the absence of a factual
dispute as to when a plaintiff’s cause of action accrues, the application of the statute of
limitations is a question of law. Bell v. Ohio State Bd. of Trustees, 10th Dist. Franklin No.
06AP-1174, 2007-Ohio-2790, ¶ 21. Plaintiffs brought this action on February 4, 2021,
more than two years after the alleged retaliatory conduct occurred. Consequently, the
Court finds that Plaintiff Guess’ claim is time-barred, and Defendants are entitled to
judgment as a matter of law.
Conclusion
{¶37} Based upon the foregoing, the Court finds that there are no genuine issues
of material fact and that Defendants are entitled to judgment as a matter of law.
PATRICK E. SHEERAN
Judge
[Cite as Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-1598.]
ROGER HINTON, et al. Case No. 2021-00063JD
Plaintiffs Judge Patrick E. Sheeran
Magistrate Gary Peterson
v.
JUDGMENT ENTRY
OHIO DEPARTMENT OF YOUTH
SERVICES, et al.
Defendants
{¶38} A non-oral hearing was conducted in this case upon Defendants’ motion for
summary judgment. For the reasons set forth in the decision filed concurrently herewith,
Defendants’ motion for summary judgment is GRANTED and judgment is rendered in
favor of Defendants. All previously scheduled events are VACATED. Court costs are
assessed against Plaintiffs. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.
PATRICK E. SHEERAN
Judge
Filed March 28, 2022
Sent to S.C. Reporter 5/12/22