[Cite as Handford v. Buy Rite Office Products, Inc., 2013-Ohio-4712.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99734




                                   PEGGY HANDFORD
                                                           PLAINTIFF-APPELLANT

                                                     vs.

                  BUY RITE OFFICE PRODUCTS, INC.
                                                           DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-780349

        BEFORE: Rocco, J., Celebrezze, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: October 24, 2013
ATTORNEYS FOR APPELLANT

Fred M. Bean
Brian D. Spitz
The Spitz Law Firm, L.L.C.
4568 Mayfield Road
Suite 102
South Euclid, Ohio 44121

ATTORNEY FOR APPELLEE

Jack S. Malkin
20521 Chagrin Boulevard
Suite E
Shaker Heights, Ohio 44122
KENNETH A. ROCCO, J.:

       {¶1}   Plaintiff-appellant Peggy Handford appeals from the trial court’s order

granting summary judgment in favor of defendant-appellee Buy Rite Office Products, Inc.

(“Buy Rite”).     The trial court correctly determined that summary judgment was

warranted in this case, and so we affirm the trial court’s final judgment.

       {¶2} Because this appeal stems from an order granting summary judgment, we

review the record de novo. Hurd v. Blossom 24 Hour We Care Ctr., Inc., 8th Dist.

Cuyahoga No. 97936, 2012-Ohio-3465, ¶ 13.

       {¶3} Handford worked for Buy Rite in a sales position from November 1, 2011,

until she resigned on January 27, 2012. On April 12, 2012, Handford filed a complaint

against Buy Rite alleging (1) that Buy Rite had failed to pay her overtime wages in

violation of the Ohio Minimum Fair Wages Standards Act; (2) that Buy Rite had violated

the Ohio Whistleblower Statute; and (3) that Buy Rite had constructively discharged

Handford.1

       {¶4} At the close of discovery, Buy Rite filed its motion for summary judgment,

which the trial court granted. Handford appeals, setting forth six assignments of error for

our review:

       I. The trial court committed reversible error by wrongfully weighing the
       facts.



       1
       Although two other causes of action were alleged in her complaint, Handford makes no
argument in her briefs with respect to these claims, and so we do not consider them on appeal.
       II. The trial court committed reversible error in determining that Handford
       fell within the outside salesperson exemption.

       III. The trial court committed reversible error by factually determining that
       Handford was a salaried employee for purposes of her overtime claim.

       IV. The trial court committed reversible error by factually determining that
       Handford did not provide enough evidence supporting her claim that she
       worked overtime hours.

       V. The trial court committed reversible error in granting summary
       judgment as to Handford’s whistleblower claim.

       VI. The trial court committed reversible error by improperly weighing
       evidence regarding Handford’s constructive discharge claim.

       {¶5}   Having examined each of Handford’s causes of action separately to

determine whether there is any merit to her assignments of error, we conclude that the

trial court did not err in granting summary judgment for Buy Rite.

                              Summary Judgment Standard

       {¶6} Handford’s first assignment of error alleges that the trial court committed

reversible error by improperly “weighing the facts.” In other words, Handford argues

that the trial court did not correctly apply the summary judgment standard.

       {¶7} Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine

issue as to any material fact exists; (2) the party moving for summary judgment is entitled

to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the

nonmoving party, reasonable minds can reach only one conclusion that is adverse to the

nonmoving party.
       {¶8} The party moving for summary judgment has the initial burden to show that

no genuine issue of material fact exists. Redeye v. Belohlavek, 8th Dist. Cuyahoga No.

87874, 2007-Ohio-85, ¶ 16, citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d

64, 66, 375 N.E.2d 46 (1978). The movant cannot simply rely on conclusory assertions

that the nonmovant has no evidence; rather, the movant must specifically point to

evidence contained within the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, etc., which affirmatively demonstrate that the nonmovant has no

evidence to support his claims. Id., citing Dresher v. Burt, 75 Ohio St.3d 280, 293, 662

N.E.2d 264 (1996).

       {¶9} If the movant meets his burden, the burden then shifts to the nonmovant to set

forth specific facts demonstrating the existence of a genuine issue of material fact. Id.

The nonmoving party cannot meet this burden by resting on unsupported allegations

contained in the pleadings. See Citibank, N.A. v. Katz, 8th Dist. Cuyahoga No. 98753,

2013-Ohio-1041, ¶ 15. Similarly, vague and conclusory allegations contained in an

affidavit do not create a genuine issue of material fact. See id. While “the nonmoving

party does not need to try its case at this juncture, [it] must produce more than a scintilla

of evidence in furtherance of its claims.” Jones v. Swagelok Co., 8th Dist. Cuyahoga No.

83849, 2004-Ohio-3876, ¶ 40. If the nonmoving party establishes the existence of a

genuine issue of material fact, then the trial court should deny the motion for summary

judgment. With this standard in mind, we turn to the instant case.
       {¶10} Handford contends that the trial court improperly credited evidence in Buy

Rite’s favor. Handford takes issue with an affidavit from Jonathan Wexler, a former Buy

Rite salesperson. According to Handford, the affidavit was drafted under suspicious

circumstances, because Wexler did not help prepare the affidavit and did not sign it in a

notary’s presence.    But the trial court’s decision does not rely on the information

contained in the Wexler affidavit, so, even if the Wexler affidavit was somehow

defective, Handford cannot establish that she was prejudiced by this fact. Handford also

argues that the statements contained in the affidavit conflict with statements Wexler made

in his deposition and, thus, create fact questions. Having reviewed the Wexler affidavit

and the deposition testimony, we do not observe a conflict between the two, but, even if a

conflict did exist, Handford fails to specify how this supposed conflict creates a genuine

issue of material fact about any of the specific claims set forth in her complaint.

       {¶11} Handford makes two additional arguments under this assignment of error.

First, Handford asserts that the trial court did not properly credit the affidavit of Chris

Parks in considering Handford’s claim for overtime pay. She also argues that the trial

court failed to properly consider two affidavits that supported her whistleblower claim.

Because these arguments pertain to specific claims, we address them in our discussion of

those claims.

       {¶12} For now, it is enough to say that, even if the trial court failed to properly

consider evidence submitted by Handford, our de novo review of the record leads us to

conclude that summary judgment was warranted for Handford’s overtime claim,
whistleblower claim, and constructive discharge claim. Accordingly, we disagree with

Handford’s contention that the trial court’s treatment of the evidence constituted

reversible error, and so we overrule the first assignment of error.

                                      Overtime Claim

       {¶13} Handford’s second, third, and fourth assignments of error all pertain to her

claim that Buy Rite withheld overtime pay from her in violation of R.C. 4111.03(A),

Ohio’s Minimum Fair Wage Standards Act. The trial court set forth two independent

reasons for granting summary judgment on Handford’s overtime claim. First, the trial

court determined that Handford was an exempt employee for purposes of R.C. 4111.03,

and so she was not entitled to overtime compensation. Second, the trial court determined

that, even if Handford was not an exempt employee, she had failed to carry her burden to

present evidence demonstrating that she had performed work for which she was not

adequately compensated.       Although the trial court erred in determining that the

exemption applied, the trial court correctly concluded that Handford had not adequately

carried her burden.     Accordingly, the trial court did not err in granting summary

judgment for Buy Rite on the overtime claim.

       {¶14} R.C. 4111.03(A) provides that an employer must pay an employee for

overtime at a wage rate of one and one-half times the employee’s wage rate, for hours

worked in excess of 40 hours in one workweek, unless the employee is exempt under

section 7 and section 13 of the Fair Labor Standards Act of 1938 (“FLSA”). If an FLSA
exemption applies, then the employee is not entitled to overtime pay under R.C.

4111.03(A).

      {¶15} Exemptions are narrowly construed against the employer. The employer

must demonstrate by clear and affirmative evidence that the employee is covered by the

exemption.    White v. Murtis M. Taylor Multi-Service Ctr., 188 Ohio App.3d 409,

2010-Ohio-2602, 935 N.E.2d 873 (8th Dist.), ¶ 12. Because there is a presumption of

non-exemption, the exemption is applied only in “‘those circumstances plainly and

unmistakably within the exemption’s terms and spirit.’” Id., quoting Jastremski v. Safeco

Ins. Cos., 243 F.Supp.2d 743, 747 (N.D.Ohio 2003). The manner in which an employee

spends his time is a fact question, but the issue of whether the employee’s duties fall

within an exemption is a question of law. Id.

      {¶16} An “individual employed as an outside salesperson” who is “compensated

by commissions” is an exempt employee.          R.C. 4111.03(D)(3)(d).   The trial court

determined that Handford’s position at Buy Rite was that of an outside salesperson, that

Handford’s compensation was based on commission, and that, therefore, Handford was

an exempt employee who was not entitled to overtime compensation under the statute.

      {¶17} Handford’s second assignment of error contests the trial court’s

determination that Handford fell under the exemption. In support of her argument,

Handford points to 29 C.F.R. 541.500, which sets forth that an employee cannot be

considered an outside salesperson unless, in performing her job duties, she is

“customarily and regularly engaged away from the employer’s place or places of
business.” Handford asserts that the trial court’s exemption analysis was flawed because,

although it was Buy Rite’s burden to demonstrate that the exemption applied, the trial

court did not require Buy Rite to present any evidence on whether Handford’s job duties

were customarily and regularly performed away from Buy Rite’s office.

      {¶18} We agree. The trial court’s opinion does not discuss whether Handford’s

job duties were primarily performed inside or outside the office. Further, Buy Rite has

not pointed to evidence in the record to meet its burden of demonstrating that Handford’s

duties were primarily performed outside of the office. Because the evidence did not

establish whether Handford performed her job duties while “customarily and regularly

engaged away from [Buy Rite’s] place * * * of business,” and because the burden was on

Buy Rite to establish this fact, the trial court erred in applying the exemption.

Accordingly, we sustain the second assignment of error.

      {¶19} Having determined that the trial court erred in applying the exemption, we

need not address any remaining arguments Handford has made with respect to the

exemption, because those arguments are now moot. Accordingly, we decline judgment

on Handford’s third assignment of error.

      {¶20} Although the outside sales exemption was inapplicable, we still conclude

that the trial court correctly granted summary judgment to Buy Rite on Handford’s

overtime claim. The trial court’s second, independent reason for granting summary

judgment on the overtime claim was based on its determination that Handford had failed

to meet her evidentiary burden. We agree.
       {¶21} When an employee asserts a claim for unpaid overtime, the employee carries

the initial burden of demonstrating that she performed work for which she was not

adequately compensated. See McCrimon v. Inner City Nursing Home, Inc., N.D. Ohio

No. 1:10 CV 392, 2011 U.S. Dist. LEXIS 113302 (Sept. 30, 2011); Simmons v. Wal-Mart

Assocs., Inc., S.D. Ohio No. 2:04-CV-51, 2005 U.S. Dist. LEXIS 21772 (July 19, 2005).2

 If the employer has kept proper and accurate time records, the employee can easily

meet her burden by securing those records. McCrimon, citing Anderson v. Mt. Clemens

Pottery Co., 328 U.S. 680, 686-687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946).

       {¶22} But when an employer fails to keep accurate and adequate time records, the

plaintiff’s burden of proof is “relaxed.” Myers v. Copper Cellar Corp., 192 F.3d 546,

551 (6th Cir.1999), citing Anderson at 686-687. The employee satisfies the relaxed

burden by producing sufficient evidence indicating the amount and extent of her

uncompensated work “as a matter of just and reasonable inference.” Id. The evidence

must also establish that the employer had actual or constructive knowledge that the

employee was working outside the normal workday.            Wood v. Mid-America Mgmt.

Corp., 192 Fed. Appx. 378, 380 (6th Cir.2006).           “An employer cannot satisfy an

obligation that it has no reason to think exists. And an employee cannot undermine his

employer’s efforts to comply with the FLSA by consciously omitting overtime hours for

which he knew he could be paid.” Id. at 381. If the employee meets her initial burden,

       2
       The FLSA’s overtime pay requirements are identical to those contained in R.C. 4111.03.
 Although Handford has elected to proceed only under state law, we look to cases interpreting
the FLSA in guiding our interpretation of R.C. 4111.03.
the burden then shifts to the employer to set forth evidence of the precise amount of work

performed or to put forth evidence that negates the reasonable inference. If the employer

fails to produce such evidence, the employee prevails. Id.

      {¶23} The record in this case reveals that Buy Rite kept records of the dates that

Handford worked, but not of the hours that she worked on those dates. Because the time

records were imprecise, we apply the relaxed, reasonable-inference standard. Although

the burden is relaxed, a plaintiff must still do more than generally allege that she worked

off the clock. See Simmons at *27-*30 (employee’s evidence consisting of a “bald

assertion that from 1999 to 2003 he worked off the clock over 200 times on unspecific

days is not enough to create genuine issues of material fact as to whether he is owed any

additional compensation”).

      {¶24} The trial court determined that Handford had failed to produce any evidence

to support a reasonable inference that overtime work was performed and reported for

compensation. In her fourth assignment of error, Handford argues that she satisfied her

burden through the production of her own affidavit and the affidavit of Chris Parks. The

trial court’s analysis does not refer to the Handford affidavit nor the Parks affidavit.

Having reviewed these affidavits, we conclude that Handford failed to satisfy her burden.

      {¶25} Handford’s affidavit states that, although she initially thought she would be

working as an outside salesperson, Buy Rite changed her position on the first day of work

so that she was working in the office. According to her affidavit, Handford worked in

the office from 8:30 a.m. until 5:00 p.m., five days per week and worked from home
“about 10 hours per week.” Handford Aff. ¶ 9. Handford averred that she worked

“about 50 hours per week.” Id. at ¶ 10.     Handford asserted in her affidavit that she

received no overtime compensation.      The Parks affidavit sets forth that Parks had

personal knowledge that Handford had worked for Buy Rite from home for about ten

hours per week. The affidavit does not state how Parks knows Handford or how Parks

obtained this personal knowledge.

      {¶26} The averments contained in the Handford affidavit and the Parks affidavit

are not sufficient to satisfy Handford’s burden.      Like the employee in Simmons,

Handford generally alleges that she worked outside of the normal workday on unspecified

days for about ten hours a week. Handford does not allege that she kept any personal

records of dates and times worked outside of normal business hours.

      {¶27} Further, as Handford does not allege that she ever told Buy Rite about the

hours she had been working outside of the office, there is no evidence that Buy Rite had

actual knowledge of the alleged overtime hours. And, if, as Handford alleges, Buy Rite

changed her position on the first day of employment from outside salesperson to inside

salesperson, Buy Rite would not have had constructive knowledge that Handford was

working additional hours outside of the office. The evidence contained in the Parks

affidavit adds nothing more; it merely echos Handford’s claim that she worked

approximately ten hours a week from home.

      {¶28} Because Handford failed to satisfy her burden to demonstrate that she

performed work for which she was not adequately compensated, the trial court did not err
in granting Buy Rite’s motion for summary judgment on Handford’s overtime claim.

Accordingly, we overrule the fourth assignment of error.

                                   Whistleblower Claim

        {¶29} In Handford’s fifth assignment of error, she argues that the trial court erred

in granting summary judgment to Buy Rite on her whistleblower claim.                 In her

complaint, Handford alleged that she was forced to resign from Buy Rite because after

she had complained about Buy Rite’s illegal practices, Buy Rite had refused to remedy its

conduct.

        {¶30} R.C. 4113.52 proscribes an employer from taking any disciplinary or

retaliatory action against an employee who “blows the whistle.” Most of Handford’s

arguments on appeal involve whether Handford’s conduct constituted protected

whistleblowing. But we need not address these arguments. Viewing the evidence in the

light most favorable to Handford, we conclude that Buy Rite did not take any disciplinary

or retaliatory action against Handford.      Accordingly, Handford cannot prevail on a

whistleblower claim, and the trial court did not err in granting summary judgment for Buy

Rite.

        {¶31} The statute defines “disciplinary or retaliatory action” broadly, including,

“without limitation”:

        (1) Removing or suspending the employee from employment;
        (2) Withholding from the employee salary increases or employee benefits to
        which the employee is otherwise entitled;
        (3) Transferring or reassigning the employee;
        (4) Denying the employee a promotion that otherwise would have been
        received;
      (5) Reducing the employee in pay or position.

R.C. 4113.52(B).

      {¶32} Handford does not argue that Buy Rite took any of these actions; rather, she

asserts that she was “forced to resign.” Handford’s affidavit alleges that she learned,

through overheard phone conversations and through discussions with coworkers, that Buy

Rite had double billed clients on credit card purchases. The affidavit also sets forth that

Handford had learned that some individuals had smoked marijuana at Buy Rite’s

office. Handford believed that these activities were illegal. According to her affidavit,

on the morning of January 27, 2012, Handford orally reported these activities to her

supervisor, Michelle Ryb. Handford also alleged that she left a note, detailing the

conduct, on Ryb’s desk. Handford averred that she met with Ryb later that day to discuss

the matter further, but that Ryb told Handford that “nothing was going to be done to

remedy the conduct.” Handford Aff. ¶ 21. After hearing Ryb’s response, Handford

“elected to resign at the end of the day.” Id. at ¶ 22. Handford alleged in her affidavit

that she resigned because she was fearful of continuing to work for Buy Rite under the

circumstances. Handford notified Ryb of the allegations and resigned from Buy Rite all

on the same day — a Friday. The following Monday, Handford started her new job with

Innovative Cleaning.

      {¶33} Assuming Handford’s version of events as true, we conclude that Buy Rite

did not subject Handford to any “disciplinary or retaliatory action.”         Handford is

essentially arguing for a rule that states that if an employee notifies her employer of
alleged illegal conduct, and the employer states that it does not intend to act on the

information, then the employee has been subjected to disciplinary or retaliatory action

under the Whistleblower Statute. We disagree. Refusing to act on the employee’s

allegations, standing alone, cannot be understood as “disciplinary or retaliatory action”; in

fact, the employer has taken no “action” at all.

       {¶34} To the extent that Handford is arguing that Ryb’s decision to do nothing was

a “disciplinary or retaliatory action,” because it was tantamount to a constructive

discharge, we are unconvinced.       Constructive discharge exists where an employer’s

actions make working conditions so intolerable that a reasonable person under the

circumstances would feel compelled to resign. Mauzy v. Kelly Servs., Inc., 75 Ohio St.3d

578, 588-589, 664 N.E.2d 1272 (1996). Ohio courts generally apply an objective test to

evaluate whether an employee was constructively discharged, evaluating “whether the

cumulative effect of the employer’s actions would make a reasonable person believe that

termination was imminent.” Id. at 589. The court should consider a wide range of

factors, such as “reductions in sales territory, poor performance evaluations, criticism in

front of coemployees, [and] inquiries about retirement intentions * * *.” Id.

       {¶35} Viewing the facts in the light most favorable to Handford, we conclude that

Buy Rite’s actions in this case would not make a reasonable person believe that

Handford’s termination was imminent. The only action allegedly taken by Handford’s

employer was that Ryb told Handford that she did not intend to pursue Handford’s

allegations.   Handford resigned within hours of this interaction. Handford was not
threatened. She was not criticized or harassed. None of her supervisors insinuated that

her position at Buy Rite was in jeopardy. Rather, Handford did not approve of the

manner in which Ryb intended to deal with the allegations, and so she “elected to resign.”

 As a matter of law, Ryb’s response to Handford’s complaint does not create an

actionable claim for constructive discharge.

       {¶36} Handford has failed to establish that Buy Rite violated R.C. 4113.52,

because she does not point to any evidence that would demonstrate that Buy Rite took a

“disciplinary or retaliatory action” against Handford.3 Because the trial court properly

granted summary judgment on Handford’s whistleblower claim, we overrule the fifth

assignment of error.

                                     Constructive Discharge

       {¶37}       Hanford’s sixth assignment of error challenges the trial court’s

determination that Buy Rite was entitled to summary judgment on Handford’s

constructive discharge claim. For the reasons stated above, we conclude that the trial

court did not err in ordering summary judgment on this cause of action, and so we

overrule the assignment of error.




       3
         As mentioned earlier, Handford argues in her first assignment of error that the trial court
failed to properly consider two affidavits that supported her whistleblower claim. Handford
relies on these affidavits to establish the existence of illegal activity at Buy Rite, not to establish
whether Buy Rite took any adverse action against Handford after she reported the alleged illegal
activity. Accordingly, even if the trial court failed to properly credit these affidavits, our
analysis on this claim would remain unchanged.
      {¶38} We overrule the first, fourth, fifth, and sixth assignments of error. We

sustain the second assignment of error. We need not address the third assignment of

error because the second assignment of error is dispositive of Handford’s exemption

argument. We affirm the trial court’s final judgment in favor of Buy Rite.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.



      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



____________________________________
KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
