The opinion
[Cite as Brown v. Corr. Reception Ctr., 2020-Ohio-684.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Alicia Brown, :
Plaintiff-Appellant, :
No. 19AP-104
v. : (Ct. of Cl. No. 2018-00021JD)
Correctional Reception Center, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on February 27, 2020
On brief: Kemp, Schaeffer & Rowe, Co., LPA, and Erica A.
Probst, for appellant. Argued: Erica A. Probst.
On brief: Dave Yost, Attorney General, Eric A. Walker and
Timothy M. Miller, for appellee. Argued: Timothy M. Miller.
APPEAL from the Court of Claims of Ohio
BRUNNER, J.
{¶ 1} Plaintiff-appellant, Alicia Brown, appeals from a decision of the Court of
Claims of Ohio entered on February 4, 2019 granting summary judgment against her and
in favor of defendant-appellee, the Correctional Reception Center ("CRC"), on her claims
for racial employment discrimination and retaliation. Her appeal is limited, however, to
her claim for retaliation.1 Because, on de novo review, we find there are genuine issues of
fact as to each of the disputed elements of Brown's claim for retaliation, we reverse the
granting of summary judgment against her on that claim and remand for further
proceedings.
1It was not clear from her briefs which claims she was appealing. However, during oral argument, counsel for
Brown clarified that she is not appealing the rulings on her discrimination claim, only the retaliation claim.
No. 19AP-104 2
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Brown began this case by filing a complaint against CRC for racial
discrimination and retaliation after she confronted her boss with charges of racism on
January 26, 2017, which allegedly caused him to immediately fire her. (Jan. 3, 2018 Compl.
at ¶ 13, 16.) CRC answered, admitting that a confrontation took place in which Brown
accused her boss, Anthony Ayers, of racism, but CRC denied that she was fired. (Jan. 30,
2018 Answer at ¶ 16-17.)
{¶ 3} After the parties conducted discovery, including ten depositions which were
filed in the trial court and are part of the record,2 CRC moved for summary judgment on
both of Brown's claims. (Nov. 5, 2018 Mot. for Summ. Jgmt.) CRC argued that Brown was
never an employee of CRC, but rather, was an employee of a staffing agency, Around the
Clock Healthcare ("ATC"), which placed her at CRC as an independent contractor. Id. at 4-
8. CRC also argued that while Brown left employment after the disagreement with Ayers,
Ayers did not actually take steps to fire her and she was not terminated by CRC. Id. at 10-
11. Alternatively, CRC argued that Brown could not point to a similarly situated person not
of the protected class who received better treatment or who replaced Brown. Id. at 11-13.
Finally, CRC argued that Brown had not engaged in protected conduct for which CRC could
have retaliated. Id. at 13-15. In addition to the depositions already on file with the trial
court, CRC attached affidavits of two of Brown's superiors, Raphael Lilly and Ayers, as well
as interrogatory answers from Brown. (Lilly Aff., attached to Nov. 5, 2018 Mot. for Summ.
Jgmt.; Ayers Aff., attached to Nov. 5, 2018 Mot. for Summ. Jgmt.; Mar. 21, 2018 Interrogs.,
attached to Nov. 5, 2018 Mot. for Summ. Jgmt.)
{¶ 4} In her deposition, Brown testified that she worked as a health information
technician ("HIT") at CRC under an arrangement with a staffing company, ATC. (May 10,
2018 Brown Dep. at 24, 28-33.) Her supervisors were Anthony Ayers (white), Robert
Swackhammer (white), and Raphael Lilly (black). Id. at 51-52. Her last day at CRC was the
day of her disagreement with Ayers, January 26, 2017. Id. at 58.
{¶ 5} On that day, Ayers informed her and a nurse, Kristina Gerber, that someone
had reported witnessing them using foul language and that he wanted them to cease such
2Exhibits were used extensively in many of the depositions and have been cited extensively in CRC's brief.
(CRC's Brief at 11-13, 15.) However, with the exception of the exhibits for the depositions of Seese and Wolf,
no exhibits were filed in the Court of Claims and none are in the record before this Court.
No. 19AP-104 3
unprofessional behavior. Id. at 102-04, 107-09, 110-11. After Gerber excused herself from
Ayers' office, Brown testified that she accused Ayers of harassing her, of racism, and of
attempting to rid the workplace of black persons. Id. According to Brown, Ayers responded
by telling her to "get out" or he would "have [her] escorted out of here." Id. at 110-11. Brown
left the facility at that point before her shift was concluded. Id. at 58. She testified that, as
she collected her things, she spoke to Swackhammer, telling him that she felt this was
wrong. Id. at 111.
{¶ 6} Brown explained that her allegations regarding Ayers were based on a lengthy
period of interactions with Ayers in which he appeared to excessively criticize her job
performance relative to her coworkers. Id. at 128-29. She opined that this began after she
took Lilly's side in a conflict between Lilly and Ayers that involved an internal investigation.
Id. at 72, 77-79, 116-17. She observed that Ayers seemed to be generally more critical of
black workers than white workers. Id. at 105. Ayers once remarked to her that he did not
understand why Lilly who was "stupid" and "black" had been promoted. Id. She testified
that Ayers and Swackhammer treated two white HITs better than they treated her, but also
elaborated that those two enjoyed a rapport with Ayers and Swackhammer because they all
went to bars after work together. Id. at 126-27. Brown denied indicating to anyone that
she had been planning to leave the job voluntarily anyway. Id. at 112. However, she did
admit to having written an e-mail to her recruiter at ATC regarding the incident. Id. at 30-
31, 62-63. That e-mail (which was also made an exhibit to Wolf's deposition) reads as
follows:
From: [REDACTED]
Sent: Thursday, January 26, 2017 3:03 PM
To: Tiffany Wolf [REDACTED]
Subject: Alicia Brown
To whom it may concern on this above date 1/26/2017 Mr.Tony
Ayers said I need to talk to you across the hall so I went to the
office then the Nurse Christy Gerber was in the room also he
then stated that I had some complaints about you and Gerber
that you 2 are dropping the F- bomb then I stated that I am not
the one doing that that is Gerber then he stated no let's not
point fingers I reply by saying ok what else i said then he said
we are being to loud while they are examined intimates and we
both are talking about each other when ones leaves the room
and this was our warning next time it would be a right up that's
all I am saying. Then I asked Mr.Ayers could I speak with him
No. 19AP-104 4
alone he said yes. I asked Mr.Ayer why are you nit picking
about everything I do now I always done my job since I been
here and I think this is a back lash about what's going on with
you and Mr. Lilly and you have been harassing me since I had
to write a report pertaining to that. For instance last week when
I called your office and spoke with Robert Swackhammer
telling him that alot of intimates don't have their labs back and
they couldn't be scheduled and Mr.Ayers was in the
background yelling she doesn't know what she is doing so
Robert reply by saying come up to our office which I did so
Robert started looking through the computer and he said she is
right. Them Mr.Ayers still continued to search and then replied
by saying you check all these labs I said yes he then said Um
and that was it. So I said I wrote a report on you of workplace
harassment and I planned on leaving today anyway because
your not going to continue harassing me any more then he
started yelling with all the intimates in the hallway get your
stuff and get out now your no longer needed here i said you are
very unprofessional and you don't like black people working up
in Medway and everyone black here just leave or you get rid of
them and then he also stated that's why Mr.Lilly got fined with
2days and I did not get anything out of that now. He then said
I am going to report you to the Deputy Warden. Another
incident Mr.Ayers is upset about he authorized me to log under
a state work to help them out in ECW the new computer system
so I was questioned about that and told them Mr.Ayers knew
because he authorized me to he denied that. Mr.Ayers in my
opinion is upset about a incident with a HIT(Female) that
Mr.Ayers got caught feeling on this female Elice and a state
Nurse reported what she caught them doing and the 2 HIT that
work in Medbay and Tony Ayers they go out drinking on
Fridays together so they have a personal relationship which out
of work. If Mr. Ayers felt that I haven't ever did my job it's never
been brought to my attention until this report I had to write
about him. I been there at CRC for 2years and I has always been
praise about my work from Anthony Ayers until these incident
with him and Mr.Lilly and other workers. I Spoke with Deputy
Warden of Oops Fredericks about Mr.Ayers harassing me 2
weeks ago and he told me to write a report so I did this morning
at 9:42am I have that report in a incident report I gave it to him
today.
(Sic passim.) (Wolf Dep., Ex. A.)
{¶ 7} Ayers agreed that he was one of Brown's supervisors in the sense that, as he
and Swackhammer were healthcare administrators at CRC, they had supervisory authority
over Lilly who, as the assistant healthcare administrator, had supervisory authority over all
No. 19AP-104 5
HITs. (July 18, 2018 Ayers Dep. at 6-10.) Yet, Ayers testified that he did not fire Brown
and, in fact, had never fired a HIT. Id. at 15. He explained that to fire someone he would
have had to have involved the deputy warden. Id. at 29-30. He admitted, however, that he
wrote an incident report about Brown regarding a disagreement between them. Id. at 16-
18. According to Ayers, he received a complaint from an unnamed "advanced level
provider" that Brown and Gerber were yelling, cursing, and being unprofessional. Id. at
62-63. After confirming the report with the other "advanced level providers" in the area,
he went to talk to Gerber and Brown and invited them to his office. Id. Gerber promised
to clean up her language, but Brown denied using inappropriate language and asked to talk
to him privately. Id. at 63. Gerber left. Id. After Gerber stepped out, Brown began to
accuse Ayers of harassing her and nit-picking her work, she called him a racist, and accused
him of trying to get rid of all the black employees. Id. at 16-18, 64-65. She continued yelling
these accusations as she left the room and began to pack up. Id. at 16-18, 65-66. Ayers
stated that the reason he completed an incident report was because Brown was yelling these
allegations as she left his office in full view of inmates. Id. at 17-18. He testified that
immediately after leaving his office, Brown gathered her belongings and left CRC, thereby
"abandoning" her job. Id. at 16-18. He maintained that although he filed an incident report
and notified ATC that Brown had abandoned her job, he never told Brown to leave and took
no steps to bar her from returning. Id. at 66-67, 70.
{¶ 8} In connection with the motion for summary judgment, Ayers supplemented
his testimony with an affidavit. In the affidavit, he repeated his assertions about what
happened between him and Brown on January 26 and reaffirmed that she was not
terminated. (Ayers Aff. at ¶ 2-3, attached to Nov. 5, 2018 Mot. for Summ. Jgmt.) Ayers
specifically recounted the administrative steps that would need to be taken to fire a HIT,
including the need to get approval from the deputy warden, the requirement that the person
be escorted out and their badge confiscated for security reasons, the need to communicate
the termination to building security to effectively prohibit the person from reentering the
grounds, and the need to inform the staffing company that the HIT would no longer be
permitted to work at CRC. Id. at ¶ 4. At no time did Ayers take any of those steps with
respect to Brown. Id. Rather, he swore that she was free to return on her next scheduled
work day and explain to management why she left her job on January 26, 2017. Id. at ¶ 5.
He also swore that Gerber, as a nurse and employee of CRC who was in the public employee
No. 19AP-104 6
bargaining unit, was not a similarly situated employee and, further, that he was unaware of
any report Brown may have filed against him in regard to a dispute between him and Lilly.
Id. at 7-8.
{¶ 9} In her deposition, Gerber confirmed that she and Brown were called into
Ayers' office regarding a complaint about foul language. (July 18, 2018 Gerber Dep. at 8-
9.) She said she promised to be more careful about her language in the future and excused
herself from Ayers' office and headed across the hall, shutting the door behind her. Id. at
9. She could not remember the exact verbiage, but she heard Brown yelling something to
the effect of, "seems like all you're trying to do around here is fire black people" or perhaps,
"get black people in trouble." Id. at 10. Gerber did not report hearing anything Ayers said
other than that Ayers asked her, as Brown was leaving, if she had heard what Brown said.
Id.
{¶ 10} Lilly testified that, as an assistant healthcare administrator, he was
subordinate to Swackhammer and Ayers but held supervisory authority over all HITs
(including Brown). (July 18, 2018 Lilly Dep. at 6, 10-11.) Lilly stated that when HITs are
fired for cause, someone at CRC calls the staffing company and they are placed on a banned
list that prevents them from working at other Ohio Department of Rehabilitation and
Correction ("ODRC") institutions. Id. at 9-10. He also explained the hiring process for new
HITs: He would request a new HIT from the staffing company on behalf of CRC, the staffing
company would send over information about the proposed person for placement, CRC
would perform a background check, and if the person was not excluded from working at
CRC by that, they would appear for orientation and begin work. Id. at 11-12.
{¶ 11} Lilly, a black male, agreed that he had filed reports against Ayers in the past
for nit-picking his work and opined that Ayers seemed to have an issue with black people.
Id. at 17-19, 21. He stated that Brown's job performance was good and that he had never
received any reports about Brown using foul language. Id. at 21-22. He had also heard
Ayers make off-color remarks about some employees' race or ethnicity. Id. at 45-47.
Although Lilly was not a witness to the events involving Brown and Ayers on the day Brown
left CRC, Brown had recounted the events to Lilly after the fact. Id. at 41-42. Lilly recalled
that Brown said she accused Ayers of racism and Ayers responded by telling her to get out,
whereupon she left in order to avoid being escorted out. Id. Lilly stated that Ayers also
No. 19AP-104 7
recounted the event to him, asking him to request a new HIT from the staffing company
because, when he talked to Brown about her job performance, she called him a racist and
then left. Id. at 40-41.
{¶ 12} Lilly supplemented his testimony with an affidavit in support of CRC's
motion for summary judgment. In his affidavit, he swore that after Brown left, her duties
were performed by a black female HIT who was already working at CRC. (Lilly Aff. at ¶ 3.)
After that HIT left on March 17, 2017, the position was vacant until June 1, 2017, when it
was filled with a white female HIT assigned by the staffing company to work at CRC. Id.
Lilly noted that, as of the date of his affidavit, September 5, 2018, Brown was still working
for ODRC as a HIT but at a different institution. Id. at ¶ 4.
{¶ 13} Swackhammer had little memory of incidents between Brown and Ayers.
(Aug. 1, 2018 Swackhammer Dep. at 7-8.) However, he remembered that on the day Brown
left, as she was packing her belongings, she told Swackhammer he needed to "get [his] boy
in check," in reference to Ayers. Id. at 13. Brown also related that she had been planning
to leave on Friday3 anyway. Id.
{¶ 14} George Frederick, the deputy warden of operations at CRC, testified that
Brown was a HIT who was supervised by Ayers and Swackhammer. (Aug. 1, 2018 Frederick
Dep. at 5-7.) He initially recalled that Brown left because she did not like the work
atmosphere but then remembered that Brown told him she had called Ayers a racist and
that Ayers had told her to "get out." Id. at 8-9.
{¶ 15} Neither of the two deponents from the staffing company had received any
information from CRC to suggest that Brown was terminated. (July 19, 2018 Seese Dep. in
passim; July 19, 2018 Wolf Dep. in passim.) Two other deponents from CRC also testified
about matters not relevant to this appeal. (July 19, 2018 Wright Dep. in passim; Aug. 1,
2018 Reynolds Dep. in passim.)
{¶ 16} Based on the summary judgment record, the trial court determined that,
construing the evidence in Brown's favor, CRC retained a degree of control over the manner
and means of her work sufficient to subject it to liability as an employer. (Feb. 4, 2019
Decision at 8.) However, it concluded that even construing the evidence most strongly in
favor of Brown, she did not suffer an adverse employment action because she was not, in
3 January 26, 2017 was a Thursday.
No. 19AP-104 8
fact, terminated. Id. at 11. Specifically with respect to the discrimination claim, the Court
of Claims found, based on Lilly's affidavit, that Brown was not directly replaced by a white
HIT. Id. at 11-12. It also reasoned that Gerber, as a union nurse, was not similarly situated
to a HIT and did not, in any event, engage in the same behavior as Brown and thus could
not serve as an example of a comparable non-protected person who was treated more
favorably. Id. at 12. With respect to the retaliation claim, the trial court found that Brown
had not engaged in protected conduct about which there could have been retaliation as she
did not file an Equal Employment Opportunity Commission claim until after her
employment had already ended. Id. at 15.
{¶ 17} Brown now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 18} Brown alleges two errors for our review:
[1.] The Trial court Determination that there was No
Retaliation is Contrary to Law.
[2.] The Trial Court's Determination Appellant Resigned is In
Error. The Court inappropriately weighed Evidence when
there was A Material Issue of Fact Which Was Disputed by both
Appellant and Appellee.
(Capitalization original.)
III. STANDARD OF REVIEW
{¶ 19} Civ.R. 56(C) provides 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, 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 judgment as a matter of law.
The Supreme Court of Ohio has explained:
Summary judgment will be granted only when there remains
no genuine issue of material fact and, when construing the
evidence most strongly in favor of the nonmoving party,
reasonable minds can only conclude that the moving party is
entitled to judgment as a matter of law. Civ.R. 56(C); Temple v.
Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio Op.
3d 466, 364 N.E.2d 267. The burden of showing that no
genuine issue of material fact exists falls upon the party who
No. 19AP-104 9
files for summary judgment. Dresher v. Burt (1996), 75 Ohio
St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264.
Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Beverage Co.
v. Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9.
{¶ 20} The Supreme Court has also discussed in detail the relative burdens of
movant and nonmovant:
[A] party seeking summary judgment, on the ground that the
nonmoving party cannot prove its case, bears the initial burden
of informing the trial court of the basis for the motion, and
identifying those portions of the record which demonstrate the
absence of a genuine issue of material fact on the essential
element(s) of the nonmoving party's claims. The moving party
cannot discharge its initial burden under Civ.R. 56 simply by
making a conclusory assertion that the nonmoving party has no
evidence to prove its case. Rather, the moving party must be
able to specifically point to some evidence of the type listed in
Civ.R. 56(C) which affirmatively demonstrates that the
nonmoving party has no evidence to support the nonmoving
party's claims. If the moving party fails to satisfy its initial
burden, the motion for summary judgment must be denied.
However, if the moving party has satisfied its initial burden, the
nonmoving party then has a reciprocal burden outlined in
Civ.R. 56(E) to set forth specific facts showing that there is a
genuine issue for trial and, if the nonmovant does not so
respond, summary judgment, if appropriate, shall be entered
against the nonmoving party.
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In deciding summary judgment, the trial
court must give the nonmoving party "the benefit of all favorable inferences when evidence
is reviewed for the existence of genuine issues of material facts." Byrd at ¶ 25. When
reviewing a trial court's decision on summary judgment, our review is de novo and we
therefore apply the same standards as the trial court. Bonacorsi v. Wheeling & Lake Erie
Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24.
IV. DISCUSSION
A. First Assignment of Error – Whether the Trial Court Misconstrued the
Retaliation Claim
{¶ 21} R.C. 4112.02 prohibits retaliation by an employer against an employee:
It shall be an unlawful discriminatory practice:
***
No. 19AP-104 10
(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 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.
R.C. 4112.02(I). The Supreme Court has explained, "we have determined that federal case
law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42,
U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112."
Little Forest Med. Ctr. v. Ohio Civil Rights Comm., 61 Ohio St.3d 607, 609-10 (1991). Thus,
where appropriate, we and other courts refer to federal caselaw in this context.
{¶ 22} The Supreme Court has explained that to establish a prima facie case of
retaliation:
[A] claimant must prove that (1) she [or he] engaged in a
protected activity, (2) the defending party was aware that the
claimant had engaged in that activity, (3) the defending party
took an adverse employment action against the employee, and
(4) there is a causal connection between the protected activity
and adverse action.
Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, ¶ 13, citing Canitia v. Yellow
Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.1990). "If a complainant establishes a
prima facie case, the burden then shifts to the employer to 'articulate some legitimate,
nondiscriminatory reason' for its actions." Greer-Burger at ¶ 14, quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Then, "[i]f the employer satisfies this
burden, the burden shifts back to the complainant to demonstrate 'that the proffered reason
was not the true reason for the employment decision.' " Greer-Burger at ¶ 14, quoting
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
{¶ 23} Brown argues that her statement to Ayers that he was racist constituted a
protected activity because it was "oppos[ition to] any unlawful discriminatory practice."
R.C. 4112.02(I). When this protected accusation was met with an immediate statement by
Ayers that she had to "get out" or she would be "escorted out," Brown argues the prima facie
claim for retaliation was complete. (Brown Brief at 16-17.)
{¶ 24} It is undisputed that Ayers knew that Brown accused him of being racist; even
according to his testimony, she made the accusation in person to his face. (Ayers Dep. at
No. 19AP-104 11
16-18, 64-65.) There is no doubt that, under Brown's stated view of the confrontation with
Ayers, the alleged termination was directly and immediately provoked by the allegation that
Ayers was racist. (Brown Dep. at 102-04, 107-09, 110-11.) The questions pivotal to this
assignment of error are whether Brown was terminated and whether the direct in-person
oral allegation of racism constitutes protected activity to support a retaliation claim. We
first consider whether Brown's confrontation of Ayers constituted protected activity.
{¶ 25} The Sixth Circuit Court of Appeals has explained how to draw the line
between protected "oppos[ition to] any unlawful discriminatory practice" and unprotected
acts. R.C. 4112.02(I); Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304,
1313 (6th Cir.1989).
" '[T]he opposition clause' [citation omitted] does not protect
all 'opposition' activity." Holden v. Owens-Illinois, Inc., 793
F.2d 745, 751 (6th Cir.), cert. denied, 479 U.S. 1008, 93 L. Ed.
2d 704, 107 S. Ct. 649 (1986). Courts are required "to balance
the purpose of the Act to protect persons engaging reasonably
in activities opposing . . . discrimination, against Congress'
equally manifest desire not to tie the hands of employers in the
objective selection and control of personnel. . . . The
requirements of the job and the tolerable limits of conduct in a
particular setting must be explored." Hochstadt v. Worcester
Foundation for Experimental Biology, 545 F.2d 222, 231 (1st
Cir. 1976); see also Mozee v. Jeffboat, Inc., 746 F.2d 365, 374
(7th Cir. 1984). "There may arise instances where the
employee's conduct in protest of an unlawful employment
practice so interferes with the performance of his job that it
renders him ineffective in the position for which he was
employed. In such a case, his conduct, or form of opposition, is
not covered . . . ." Rosser v. Laborers' Intern. Union, 616 F.2d
221, 223 (5th Cir.), cert. denied, 449 U.S. 886, 101 S. Ct. 241,
66 L. Ed. 2d 112 (1980). An employee is not protected when he
violates legitimate rules and orders of his employer, disrupts
the employment environment, or interferes with the
attainment of his employer's goals. Unt v. Aerospace Corp.,
765 F.2d 1440, 1446 (9th Cir. 1985).
Booker at 1312. We also have previously remarked:
In order to engage in a protected opposition activity * * * a
plaintiff must make an overt stand against suspected illegal
discriminatory action." Comiskey v. Automotive Industry
Action Group (E.D.Mich. 1999), 40 F. Supp. 2d 877, 898. "[A]
vague charge of discrimination in an internal letter or
memorandum is insufficient to constitute opposition to an
No. 19AP-104 12
unlawful employment practice." Booker * * *, 879 F.2d [at]
1313.
Jackson v. Champaign Natl. Bank & Trust Co., 10th Dist. No. 00AP-170, 2000 WL
1376534, 2000 Ohio App. LEXIS 4390, *19 (Sept. 26, 2000).
{¶ 26} CRC argues that Brown's accusation of racism did not rise to the level needed
so as to be protected activity because "a simple assertion that a supervisor is racist is not
protected activity." (CRC's Brief at 19). It cites only Booker for this proposition. But
applying Booker to Brown's allegations requires further analysis.
{¶ 27} The Booker court reasoned that a letter sent by Booker, the aggrieved
employee, to company management did not constitute protected activity because it was
found not to be in opposition to an unlawful employment practice:
An examination of the letter indicates that it is not in
opposition to a violation of the Act. Booker was not contesting
any unlawful employment practice; he was contesting the
correctness of a decision made by his employer. Booker
generally attempts to dispute the employer's position with
regard to his managerial style, and he suggests that the focus of
the company's inquiry should be on his supervisor[].
There are only two possible allegations in the letter that suggest
Booker may have been contesting an unlawful employment
practice. Booker suggests that [his supervisor] may be a racist
due to a statement he allegedly made. However, the allegation
is not that [the employer] is engaging in unlawful employment
practice, but that one of its employees has a racial intolerance.
The only other possible suggestion of opposition is when
Booker alleges that the charges against him are a result of
"ethnocism." Assuming that Booker intended discrimination,
we hold that a vague charge of discrimination in an internal
letter or memorandum is insufficient to constitute opposition
to an unlawful employment practice. An employee may not
invoke the protections of the Act by making a vague charge of
discrimination. Otherwise, every adverse employment decision
by an employer would be subject to challenge under either state
or federal civil rights legislation simply by an employee
inserting a charge of discrimination. In our view, such would
constitute an intolerable intrusion into the workplace.
(Footnote omitted.) Booker at 1313.
No. 19AP-104 13
{¶ 28} Viewing the evidence before the Court of Claims in a light most favorable to
Brown, her charge of racism was neither vague nor inappropriate in the ways discussed in
Booker and Jackson. According to Brown, she asked to speak to one of her three
supervisors (Ayers) privately in his office. (Brown Dep. at 102-04, 107-09, 110-11.) Then,
in a private conversation away from inmates and the potential of disrupting the workplace,
she expressed the view that he was being excessively critical of her work on account of her
standing up for someone of her same race, that he had engaged in a campaign to drive other
black workers away from the workplace, and that he was racist. Id. Viewed from the
perspective required on summary judgment, the conversation as recounted by Brown could
constitute taking an "overt stand against" suspected illegal workplace discrimination and
be protected opposition within the meaning of R.C. 4112.02(I). Jackson, 2000 Ohio App.
LEXIS 4390, *19; Comiskey v. Automotive Industry Action Group, 40 F.Supp.2d 877, 898
(E.D.Mich.1999). While we understand that Ayers and CRC have a different view of what
transpired on January 26, 2017 and in the time leading up to it, the character of Brown's
accusations and the nature of the relationship between Ayers and Brown are disputed
factual questions that must be resolved by trial before a factfinder empowered to make
credibility determinations–not on summary judgment, requiring that the evidence must be
construed most strongly in favor of Brown.
{¶ 29} Brown's first assignment of error is sustained. However, because the Court
of Claims determined that Brown was not terminated, we review her second assignment of
error.
B. Second Assignment of Error – If there was a Genuine Dispute of Fact as
to Whether Brown was Terminated
{¶ 30} CRC successfully argued before the Court of Claims that Brown was not
terminated from her position. (Feb. 4, 2019 Decision at 11; Nov. 5, 2018 Mot. for Summ.
Jgmt. at 10-11.) On appeal, CRC continues to maintain that Brown was not terminated
because, even based on the summary judgment record, the undisputed evidence shows that
Ayers never took the administrative actions necessary to terminate her. (CRC's Brief at 19-
20.) Brown has replied that the evidence is in conflict over what Ayers said and did and
that the case therefore is not appropriate for summary judgment. (Brown's Brief at 21-22;
Brown's Reply Brief at 5-11.)
No. 19AP-104 14
{¶ 31} The federal court in the Western District of Oklahoma addressed a situation
where a supervisor told an employee "that due to [her] pregnancy, [her] doctor's
appointments and not being able to be there as much as the other girls that [she] couldn't
perform [her] job duty and that they would have to let [her] go." White v. Hammer Constr.,
Inc., Case No. CIV-04-732-F, 2005 WL 1606450, 2005 U.S. Dist. LEXIS 37122, *4
(W.D.Okla.2005). In deciding summary judgment in that case, the district court discussed
the arguments of the parties about whether the plaintiff had been terminated:
In its motion, [the employer] contends that [the plaintiff] is
unable to establish a prima facie case because she cannot show
that she was terminated or suffered any other adverse effect on
her employment. [The employer] contends that only [the
company president] had the authority to fire employees and
[the company president] never terminated [the plaintiff]. * * *
As to [the supervisor], [the employer] contends that [the
supervisor] knew she could not fire employees. [The employer]
also asserts that [the supervisor] testified that she had never
talked to [the company president] about any plans to fire [the
plaintiff] and that she had no plan to fire [the plaintiff].
Furthermore, [the employer] asserts that when [the plaintiff]
returned the next day to pick up her paychecks, [the
supervisor] told her she had not fired [the plaintiff]. [The
employer] contends that despite all the signs that she had not
been fired, [the plaintiff] failed to avail herself of any recourse
by going to [the company president] to discuss the alleged
termination. * * *
[The plaintiff] contends that [the supervisor] had apparent
authority to terminate her. Indeed, [the plaintiff] asserts that
[the supervisor] specifically told [the plaintiff] that "we will
have to let you go." [The plaintiff] contends that [the
supervisor] was her direct supervisor and never communicated
to [the plaintiff] that she did not have authority to terminate
her. [The plaintiff] also contends that [the company president]
conceded in deposition that it is possible that [the supervisor]'
statement to [the plaintiff] could have left a clear impression
that [the plaintiff] was being fired. [The plaintiff] therefore
contends that the question of whether [the supervisor]
terminated her on April 24, 2003 is a question for the jury.
Viewing the evidence in a light most favorable to [the plaintiff],
the court concludes that [the plaintiff] has raised a genuine
issue of fact as to whether she was discharged. The jury, not
the court, must decide whose version of the April 24, 2003
conversation, [the plaintiff]'s or [the supervisor]' version, is to
No. 19AP-104 15
be believed. Although [the supervisor] may not have had
express authority to fire employees, there is a question of fact
as to whether [the supervisor] acted with apparent authority in
terminating [the plaintiff]. [The supervisor] was [the
plaintiff]'s direct supervisor. She was involved in the interview
process and had input into the decision to hire [the plaintiff].
According to [the plaintiff]'s version of the April 24, 2003
conversation, [the supervisor] professed an authority to
terminate [the plaintiff] by stating that "we will have to let you
go." Moreover, [the plaintiff] testified that "[the supervisor]
has always -- she always made decisions. She was -- she was
the boss when [the company president] was not there." The
court concludes that [the plaintiff] has presented sufficient
evidence to raise a genuine issue of fact as to the third element
of her prima facie case, that she was discharged from her
employment.
(Citations omitted.) Id. at *7-10.
{¶ 32} Similarly, in the Western District of Michigan, a federal court deciding
summary judgment on the question of termination said this:
[A]lthough the parties hotly contest whether [the store
manager] had the authority to terminate employees, [the
plaintiff] has produced evidence that [the store manager] had
significant input into promotion and termination at the Benton
Harbor store. Although [the employer company] has
introduced evidence that [the store manager] lacked actual
authority to terminate employees, at a minimum, [the plaintiff]
has established an issue of fact as to whether [the store
manager] had apparent authority to promote and terminate
employees.
Wright v. AutoZone Stores, Inc., 951 F.Supp.2d 973, 991 (W.D.Mich.2013).
{¶ 33} Here, there is no dispute that Ayers was one of Brown's supervisors. (Ayers
Dep. at 6-10; Frederick Dep. at 5-7.) Viewing the evidence in a light most favorable to
Brown, Ayers told her to "get out" or he would "have [her] escorted out of here." (Brown
Dep. at 110-11.) Drawing all reasonable inferences in favor of Brown, there is a genuine
issue of material fact about whether she had been terminated by someone with apparent
authority do to so. CRC attaches great importance to the fact that Brown indicated she had
planned to leave anyway and that Ayers never followed up on his alleged "get out" statement
by going through the proper channels to terminate Brown. (CRC's Brief at 20.) But the
Court of Claims' summary judgment in favor of CRC ignores the relative employment
No. 19AP-104 16
positions of the parties. When Brown left, she thought she was terminated and stated that
she did not want to be escorted out. Based on Ayers' authority (two supervisors above her),
her return to CRC may be construed to have been unlikely. Yet, when Brown declared to
Ayers (as she recounted in her e-mail to ATC), "I planned on leaving today anyway because
your [sic] not going to continue harassing me any more [sic]," Ayers would reasonably have
assumed that he did not need to undertake the formal steps of terminating Brown because
she was not coming back. (Wolf Dep. Ex. A; Brown Dep. at 110-11.) Thus, under the view
of the evidence most favorable to Brown, Ayers' and Brown's actions after the "get out"
statements are consistent with Ayers having terminated Brown and simultaneously
believing he had no need to follow through with the formalities of termination because
Brown was not intending to return. In short, construing the evidence most strongly in favor
of Brown, there is a genuine issue of fact as to whether she suffered an adverse employment
action.
{¶ 34} Brown's second assignment of error is sustained.
V. CONCLUSION
{¶ 35} Construing the evidence in Brown's favor after conducting a de novo review,
we find that there are genuine issues of fact as to each of the disputed elements of Brown's
claim for retaliation. Accordingly, Brown's retaliation claim is not suitable for resolution
on summary judgment according to the evidence in the record at this juncture, and we
sustain Brown's two assignments of error. The judgment of the Court of Claims of Ohio is
reversed and remanded.
Judgment reversed and remanded.
BEATTY BLUNT and NELSON, JJ., concur.