Ballard v. Community Support Network

[Cite as Ballard v. Community Support Network, 2010-Ohio-200.]

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

CINDY BALLARD

Plaintiff

v.

COMMUNITY SUPPORT NETWORK

Defendant

Case No. 2007-07914

Judge Joseph T. Clark

DECISION

{¶ 1} Plaintiff brought this action alleging sexual harassment and retaliation.

The issues of liability and damages were bifurcated and the case proceeded to trial on

the issue of liability.

{¶ 2} Defendant, which ceased operation in 2008, was a division of Summit

Behavioral Healthcare (SBH) that specialized in providing mental health care to patients

at their homes rather than at the SBH hospital. Plaintiff, a registered nurse, began

working for defendant in March 2002 in the position of “team leader.” At that time,

plaintiff had approximately 13 years of continuous experience working at various mental

health facilities operated by the state of Ohio.

{¶ 3} The team leader position was a managerial role in which plaintiff

supervised several of defendant’s employees, and she in turn reported directly to

defendant’s director, Matthew Rucker. Plaintiff testified that soon after she began the

job, Rucker informed her that he expected to be promoted soon to a more senior

position within SBH and that he desired to train plaintiff to assume the role of director

upon his departure. According to plaintiff, though, it soon became apparent that Rucker

had more than a professional interest in her. Plaintiff testified that Rucker flirted with

her, made sexual innuendos, stood uncomfortably close to her, solicited hugs, and

deliberately “bumped into” her on one occasion.

{¶ 4} Plaintiff testified that Rucker’s advances made her uneasy and that she

tried to express her disinterest by simply refusing to acknowledge such behavior.

Plaintiff stated that, after a few months, this strategy proved effective as Rucker “backed

off” and that, notwithstanding such conduct, he treated her fairly and they got along well

for at least the first year of her tenure. Indeed, plaintiff’s performance review from April

2003 shows that Rucker gave her positive feedback and that plaintiff wrote “I love my

job!” atop her signature. (Defendant’s Exhibit A.)

{¶ 5} In approximately May 2003, Rucker learned that he would not receive the

promotion that he had anticipated and, according to plaintiff, this brought about a

change in his demeanor. Plaintiff stated that while Rucker had always been a

demanding boss, he became more abusive and intimidating around this time, especially

toward her. Plaintiff testified that Rucker gave her menacing looks and used

intimidating body language such that she feared he might become violent.

{¶ 6} Other employees of defendant recalled that they too were troubled by

Rucker’s behavior. Frank Thompson, a nurse, testified that the workplace was plagued

by low morale due to Rucker’s bullying and disrespectful behavior and that the situation

worsened after Rucker failed to receive his expected promotion. Dr. William Cohalen, a

psychologist, testified that he found Rucker to be “somewhat authoritarian” and insulting

toward staff.

{¶ 7} Plaintiff stated that, in mid-2003, she complained about Rucker’s

demeanor to the SBH human resources department and to Malcolm King who was the

Director of Nursing at SBH and Rucker’s immediate supervisor. According to King,

Rucker also approached him around this time to report that he was having difficulty with

plaintiff in that she was being insubordinate, undermining his authority, and not

communicating with him. King stated that in an effort to resolve the conflicts between

plaintiff and Rucker, he arranged a series of meetings between the three of them which

were held on July 31, August 28, September 4, and September 12, 2003.

{¶ 8} Plaintiff testified that she found these meetings to be unproductive

because discussion tended to center more on Rucker’s concerns than hers and she

stated that Rucker intimidated her during the meetings to the point that she was afraid

to broach certain topics. According to King, any topics were up for discussion during

the meetings and both plaintiff and Rucker made their respective concerns known.

However, King stated that he found plaintiff’s criticism of Rucker to be hostile and

manipulative and that she unfairly portrayed Rucker as being “mean.” King testified that

based upon his observations in the meetings and in his visits to defendant’s offices, he

found that plaintiff exhibited passive-aggressive behavior, that she lacked respect for

Rucker’s authority, and that she did not communicate civilly with Rucker. King further

stated that plaintiff was too friendly with subordinate employees and that, when

contrasted with Rucker’s more disciplined management style, this had the potential to

divide defendant’s staff. After the series of meetings concluded, King admonished

plaintiff to modify such behavior in a letter dated November 12, 2003. (Defendant’s

Exhibit G.)

{¶ 9} Nevertheless, both during and after the series of meetings with King,

problems persisted between plaintiff and Rucker. On the afternoon of Friday, August

19, 2003, Rucker came to plaintiff’s office and asked her to review and sign a written

reprimand that he was issuing her. Plaintiff stated that she told Rucker that her “eyes

hurt” and that she would rather address the reprimand the following Monday, but that

Rucker insisted on addressing it at that time. Plaintiff testified that she then asked

Rucker to leave her office and that, when he refused to do so, she began to telephone

the SBH police department because she found his continued presence to be

intimidating. Rucker left plaintiff’s office at that time and plaintiff hung up the telephone,

but she later submitted an incident report to the police.

{¶ 10} Joe Heckel, Chief of the SBH police department, testified that he

investigated plaintiff’s report. Heckel stated that he interviewed plaintiff and Rucker,

that they described the incident similarly, and that plaintiff told him that Rucker never

verbally or physically threatened her. Following Heckel’s investigation, the matter was

referred to SBH Chief Executive Officer Liz Banks, who declined to take any action.

{¶ 11} Another dispute between plaintiff and Rucker arose on October 27, 2003,

when Rucker filed a “request for disciplinary action” with the SBH human resources

department wherein he charged plaintiff with insubordination for countermanding

instructions that he had given to another employee that day. (Defendant’s Exhibit E.)

On November 4, 2003, plaintiff appeared at a hearing on this charge before Labor

Relations Officer John Quigley. Quigley found just cause for the insubordination charge

and, on November 24, 2003, Banks adopted Quigley’s finding and issued plaintiff a

formal reprimand. (Defendant’s Exhibit F.)

{¶ 12} King testified that, in light of the persistent problems between plaintiff and

Rucker, he decided to reassign plaintiff to a vacant second-shift (2:30 p.m. - 11:00 p.m.)

“relief supervisor” position in the nursing department of SBH. On December 2, 2003,

King sent plaintiff a memorandum informing her of the reassignment and requesting that

she report for her new position on December 8, 2003. (Plaintiff’s Exhibit 7.)

{¶ 13} Although the sequence of events is not clear, plaintiff testified that at some

point on the same day that King sent his memorandum, she e-mailed the SBH police

department to report that Rucker had followed her during a portion of her commute

home several days earlier on November 28, 2003. According to Banks, the police

investigated these allegations but found them to be without merit.

{¶ 14} On December 3, 2003, most of defendant’s employees signed a

memorandum asking King to reconsider his decision to reassign plaintiff. (Plaintiff’s

Exhibit 1.) Plaintiff sent King an e-mail on December 4, 2003, in which she objected to

the reassignment on the basis that her family and church obligations prevented her from

working second shift; plaintiff additionally testified that she opposed the reassignment

because she considered it to be a demotion. (Plaintiff’s Exhibit 8.) King testified,

though, that the reassignment was in the best interest of defendant and SBH and,

moreover, that it represented a lateral move for plaintiff with no reduction in pay and

with equal or greater supervisory responsibilities.

{¶ 15} Plaintiff stated that in order to “sort out” the situation, she submitted a

request on December 4, 2003, to utilize leave time through March 8, 2004. (Plaintiff’s

Exhibit 9.) Plaintiff’s request was denied, however, and she failed to report for her new

position as scheduled on December 8, 2003. On December 11, 2003, plaintiff

submitted another request for leave, but this too was denied. (Plaintiff’s Exhibit 9.)

Plaintiff testified that due to her inability to work second shift and her requests for leave

being denied, she never reported for the new job and instead tendered her resignation

via a letter from her attorney dated December 19, 2003. (Plaintiff’s Exhibit 12.)

SEXUAL HARASSMENT

Plaintiff alleges that Rucker’s behavior created a hostile work environment in

violation of the prohibition against sexual discrimination in R.C. 4112.02(A). In order to

establish such a claim, “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.” Hampel v. Food Ingredients Specialties,

Inc., 89 Ohio St.3d 169, 176-177, 2000-Ohio-128.

With regard to the first element, “[t]he conduct must be ‘unwelcome’ in that the

plaintiff neither solicited it nor invited it and regarded the conduct as undesirable or

offensive.” Bell v. Berryman, Franklin App. No. 03AP-500, 2004-Ohio-4708, ¶57.

Based upon plaintiff’s testimony that Rucker’s advances were uninvited and made her

uneasy, the court finds that plaintiff satisfied this first element of her claim.

The second element concerns whether members of one sex are exposed to

disadvantageous terms or conditions of employment to which members of the other sex

are not exposed. Oncale v. Sundowner Offshore Servs., Inc. (1998), 523 U.S. 75. The

harassment need not be explicitly sexual in nature, as actions that are simply abusive,

with no sexual element, can support a claim for sexual harassment if they are directed

at an employee because of his or her sex. Hampel, supra, at 178-179.

Plaintiff testified that during the first few months of her employment, Rucker

made sexual innuendos and other suggestive comments to her, solicited hugs, stood

uncomfortably close to her, and engaged in similarly “amorous” conduct to which other

employees were not exposed. The court finds that this pattern of conduct, which

according to plaintiff ceased by mid-2002, constituted harassment based upon sex.

Although plaintiff testified that Rucker intimidated and insulted her after that time,

particularly in 2003, she admitted that Rucker was rude and demanding toward all staff.

Dr. Cohalen testified that, like plaintiff, he too was the subject of formal disciplinary

charges brought by Rucker. Furthermore, plaintiff described only one instance of

harassment with a sexual element occurring after mid-2002, when Rucker privately

called her a derogatory name for women following a meeting in which she had

disagreed with him. Plaintiff acknowledged, though, that Rucker regularly used such

profanity with all of defendant’s employees. Given the isolated, albeit reprehensible,

nature of that alleged remark and considering Rucker’s coarse demeanor toward all of

defendant’s employees by that time, the court finds that any harassment that allegedly

occurred after mid-2002 was not unique to plaintiff and was not based upon her sex.

The third element of plaintiff’s claim concerns whether the harassment was

sufficiently severe and pervasive as to alter the terms and conditions of her

employment. In assessing this element, the court “must view the work environment as

a whole and consider the totality of all the facts and surrounding circumstances,

including the cumulative effect of all episodes of sexual or other abusive treatment.”

Hampel, supra, at 181. “While no single factor is required, circumstances to consider

may include the frequency and severity of the conduct, whether the conduct is

physically threatening or humiliating as opposed to merely an offensive utterance,

whether the conduct unreasonably interferes with an employee’s work performance,

and whether psychological harm results.” Hoyt v. Nationwide Mut. Ins. Co., Franklin

App. No. 04AP-941, 2005-Ohio-6367, ¶76. “Conduct that is merely offensive, without

more, is not actionable as hostile work environment harassment * * *.” Bell, supra, at

¶60, citing Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17, 21.

Plaintiff described several ways in which Rucker harassed her early in her tenure

with defendant, but she testified that such behavior did not impede her from performing

her job well during that time. Indeed, plaintiff described significant improvements that

she made to defendant’s operations in the earliest months of her employment, such as

improved record keeping and better organization of staff caseloads.

Plaintiff testified that, although she came to feel physically threatened by Rucker

in 2003, she did not perceive him to be threatening during the period of harassment at

issue in 2002. To the contrary, plaintiff stated that Rucker was “excessively polite” and

“super kind” to her during that time. Plaintiff further stated that while Rucker’s advances

made her uneasy, she was able to simply ignore them and carry on with her work and

that this strategy proved effective inasmuch as Rucker ended such behavior within a

few months. Furthermore, there is no evidence that plaintiff suffered psychological

harm as a result of the harassment.

In light of the foregoing, the court concludes that plaintiff has failed to

demonstrate that Rucker’s harassment of her was sufficiently severe and pervasive as

to alter the terms and conditions of her employment. Accordingly, plaintiff has failed to

prove her claim for hostile work environment sexual harassment.

RETALIATION

Plaintiff alleges that defendant reassigned her to the second shift position in

retaliation for her complaining of sexual harassment and that, as a result, her

resignation amounted to a constructive discharge. Plaintiff premises her claim upon

R.C. 124.341, often referred to as “the state employee whistleblower statute.” However,

section (D) of the statute expressly provides that jurisdiction over any claim arising

thereunder is limited to the state personnel board of review. Therefore, plaintiff’s claim

for retaliation under R.C. 124.341 is not cognizable in this forum. See Dargart v. Ohio

Dept. of Transp., Ct. of Cl. No. 2002-09668, 2005-Ohio-4463.

At trial, plaintiff argued alternatively that her reassignment constituted retaliation

under R.C. 4112.02(I), which provides that it is unlawful “[f]or any person to discriminate

in any manner against any other person because that person has opposed any unlawful

discriminatory practice defined in this section or because that person has 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.”

In order to establish a prima facie case of retaliation under R.C. 4112.02(I), a

plaintiff is required to prove that: “‘(1) plaintiff engaged in a protected activity; (2) the

employer knew of plaintiff’s participation in the protected activity; (3) the employer

engaged in retaliatory conduct; and (4) a causal link exists between the protected

activity and the adverse action.’” Motley v. Ohio Civ. Rights Comm., Franklin App. No.

07AP-923, 2008-Ohio-2306, ¶11, quoting Zacchaeus v. Mt. Carmel Health Sys.,

Franklin App. No. 01AP-683, 2002-Ohio-444. (Additional citations omitted.)

Plaintiff asserts that she engaged in protected activity under R.C. 4112.02(I) by

reporting Rucker’s harassment to defendant on at least two occasions: 1) at her

disciplinary hearing on November 4, 2003, when she allegedly gave the hearing officer,

John Quigley, a written statement relating that Rucker had harassed her in 2002, and 2)

on December 2, 2003, when she sent an e-mail to the SBH police department stating

that she believed Rucker followed her during a portion of her commute home from work

several days earlier.

The written statement that plaintiff claims to have given Quigley recounts the

alleged June 2002 incident in which Rucker deliberately bumped into her, as well as

incidents on July 14, 2003, and August 19, 2003, when Rucker allegedly acted “mean”

and “hostile” toward her without any sexual element. (Plaintiff’s Exhibit 11.) However,

Quigley testified that he did not recall plaintiff’s giving him any such statement during

the hearing and that if she had done so, he would have forwarded it to SBH

administrators.

With regard to plaintiff’s e-mail to the police, it is unclear whether plaintiff sent

this message before or after King sent her the memorandum that same day to inform

her of the reassignment. But, even if the court were to assume that plaintiff’s e-mail

slightly preceded King’s memorandum and that she did in fact give Quigley the written

statement, King credibly testified that he was not aware of these actions nor any similar

complaints by plaintiff, prior to reassigning her. Moreover, plaintiff admitted that she

never notified King of any sexual harassment by Rucker. Based upon the foregoing, the

court concludes that King lacked notice of any report of sexual harassment that plaintiff

may have made to Quigley or the police.

Furthermore, the evidence does not demonstrate a causal connection between

King’s reassignment of plaintiff and her alleged reporting of Rucker’s harassment. King

explained his rationale for reassigning plaintiff, when he testified that after Banks’

reprimand of plaintiff on November 24, 2003, he concluded that plaintiff was unable to

cooperate with Rucker, that defendant’s staff had split into factions due to plaintiff’s and

Rucker’s contrasting management styles, and that the needs of defendant and SBH

would best be served by reassigning plaintiff to the vacant second shift position. King’s

decision followed several months of effort by himself, plaintiff, and Rucker to solve the

problems surrounding defendant’s management, during which time King repeatedly

counseled plaintiff to modify her behavior. Although plaintiff testified that King’s criticism

of her was unfair, she admitted that her managerial style did conflict with Rucker’s and

that his lack of formal nursing or medical training caused her to question his leadership.

The causation element of plaintiff’s retaliation claim requires her to demonstrate

that the reassignment would not have occurred had she not engaged in the protected

activity. Hall v. Banc One Mgmt. Corp., Franklin App. No. 04AP-905, 2006-Ohio-913,

¶42. However, due to the persistent and untenable conflict between plaintiff and

Rucker, as evidenced by the reprimand for insubordination that Banks issued plaintiff

just nine days before her reassignment, the court is persuaded that King would have

reassigned plaintiff regardless of whether she engaged in protected activity. Given the

absence of a causal connection between any protected activity and the reassignment,

as well as King’s lack of knowledge of any protected activity by plaintiff, the court finds

that plaintiff has failed to prove her claim of retaliation under R.C. 4112.02(I). In light of

this finding, any discussion of plaintiff’s claim regarding constructive discharge is

rendered moot.

For the foregoing reasons, the court finds that plaintiff has failed to prove her

claims by a preponderance of the evidence and, accordingly, judgment shall be

rendered in favor of defendant.

Court of Claims of Ohio

The Ohio Judicial Center

65 South Front Street, Third Floor

Columbus, OH 43215

614.387.9800 or 1.800.824.8263

www.cco.state.oh.us

CINDY BALLARD

Plaintiff

v.

COMMUNITY SUPPORT NETWORK

Defendant

Case No. 2007-07914

Judge Joseph T. Clark

JUDGMENT ENTRY

This case was tried to the court on the issue of liability. The court has

considered the evidence and, for the reasons set forth in the decision filed concurrently

herewith, judgment is rendered in favor of defendant. Court costs are assessed against

plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of

entry upon the journal.

_____________________________________

JOSEPH T. CLARK

Judge

cc:

Eric A. Walker Richard B. Reiling

Assistant Attorney General 5045 North Main Street, Suite 320 D

150 East Gay Street, 18th Floor Dayton, Ohio 45415

Columbus, Ohio 43215-3130

RCV/cmd

Filed January 11, 2010

To S.C. reporter January 25, 2010