         [Cite as Stallworth v. Wal-Mart Stores E., L.P., 2016-Ohio-2620.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




MARLOW STALLWORTH,                                 :          APPEAL NO. C-150355
                                                              TRIAL NO. A-1405383
        Complainant-Appellee,                      :
                                                                  O P I N I O N.
  vs.                                              :

WAL-MART STORES EAST, L.P.,                        :

    Respondent-Appellant.                          :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 22, 2016



Mike DeWine, Ohio Attorney General, Megan M. Hudson and Stefan J. Schmidt,
Assistant Attorneys General, for Complainant-Appellee,

Littler Mendelson, P.C., Alison M. Day and Erik Hult, for Respondent-Appellant.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




SYLVIA S. HENDON, Presiding Judge.

       {¶1}   This is a racial-discrimination case. Respondent-appellant Wal-Mart

Stores East, L.P., (“Wal-Mart”) has appealed from the trial court’s entry ordering

Wal-Mart to comply with a cease-and-desist order issued by the Ohio Civil Rights

Commission (“Commission”) on behalf of complainant-appellee Marlow Stallworth.

Because the trial court did not abuse its discretion in ordering compliance with the

cease-and-desist order, we affirm its judgment.

                                Facts and Procedure


       {¶2}   Stallworth began working as a third-shift overnight stocker at a Wal-

Mart store in Hawaii in September of 1997. In April of 2008, he transferred to a

Wal-Mart store in Cincinnati. He was the only African-American overnight stocker

at the store. As an overnight stocker, Stallworth’s responsibilities included receiving

merchandise and stocking it on the shelves, putting away overstock, and zoning, or

straightening, the aisles. His normal shift hours were from 10:00 p.m. to 7:00 a.m.

       {¶3}   In April of 2009, Chris McDaniel, an assistant manager at Wal-Mart,

became one of Stallworth’s supervisors. The two worked together approximately

three to four nights a week. The relationship between McDaniel and Stallworth was

contentious from the beginning.       During their first interaction, McDaniel was

argumentative with Stallworth after finding that, approximately 30 minutes after his

shift had ended, Stallworth still had two pallets of merchandise left to stock.

McDaniel ordered Stallworth to stay until the pallets were unloaded, but Stallworth

had family responsibilities and could not continue to work overtime. McDaniel told




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Stallworth that he did not like his attitude, and that Stallworth should not return to

work if he did not finish the pallets before he left.

       {¶4}    The relationship between McDaniel and Stallworth continued to

deteriorate. McDaniel would confront Stallworth in his aisle and tell him that he was

lazy and not performing up to standards, but McDaniel did not similarly criticize the

Caucasian stockers about their productivity.            McDaniel would also overload

Stallworth with work by bringing out all of the overstock for his aisle, even if not

needed on the floor. Stallworth reported McDaniel’s harassing behavior to another

manager and was told that the problem would be taken care of. But, according to

Stallworth, McDaniel then became more aggressive. After Stallworth told McDaniel

that he wanted their conversations to be limited to work-related matters, McDaniel

responded by saying “the way you people think is dumb.”

       {¶5}    On May 25, 2009, McDaniel confronted Stallworth near the end of his

shift about Stallworth’s failure to zone his aisle that night. Stallworth had been given

permission from store manager Quinton Wilson to leave his shift thirty minutes

early, and he informed McDaniel that he would not be able to complete the zoning

and asked for help from another stocker. It was common store practice to have

workers with less freight on a particular night assist those who had heavier loads.

While McDaniel often provided extra workers to assist Caucasian stockers with heavy

loads, he refused to do so for Stallworth. Stallworth stated that he would not stay to

zone his aisle, and the two men engaged in a loud argument that continued into a

backroom before Stallworth left the store.

       {¶6}    The next shift that Stallworth and McDaniel worked together occurred

on May 30, 2009. That day, McDaniel asked Stallworth to come into a back office for




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                     OHIO FIRST DISTRICT COURT OF APPEALS



a meeting to discuss their earlier argument.     Lucinda Nause, another assistant

manager, sat in on the meeting. McDaniel informed Stallworth of his expectations,

and then told Stallworth that he had intended to give him a coaching, a form of

discipline at Wal-Mart, but that he had been instructed not to. After McDaniel

showed Stallworth the coaching that he had prepared, Stallworth lost his temper,

called McDaniel stupid and dumb, and walked out of the meeting. He then reported

McDaniel’s behavior to Chris Mitchell, a co-manager at that Wal-Mart location.

       {¶7}    Mitchell held a meeting with both Stallworth and McDaniel. He told

the men that they were going to have a fresh start and instructed them to shake

hands, which they did. Stallworth then left to begin a previously scheduled two-week

vacation. Immediately thereafter, McDaniel approached Mitchell and told him that

he had not been told the full version of what had happened during the earlier

meeting between him, Nause, and Stallworth. McDaniel then told Mitchell that

Stallworth had called him “fucking stupid and dumb.” While on vacation, Stallworth

received a call from Wal-Mart telling him not to return to work, but to attend a

meeting that had been scheduled for June 13, 2009. At that meeting, Wal-Mart co-

manager Michael Spencer and another assistant manager accused Stallworth of

calling McDaniel “fucking stupid and dumb” during the meeting on May 30, and

informed him that he was fired because such disrespect of managers would not be

tolerated. After being fired, Stallworth repeatedly called Wal-Mart in an attempt to

get his job back.

       {¶8}    On June 14, 2009, Stallworth returned to Wal-Mart and circulated a

petition among the overnight stockers. The petition read as follows:




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       We, the associates at 1443 Wal-Mart, support Marlow Stallworth. He

       is a hard and dependable worker which was being harassed by

       Assistant Manager Chris on numerous occasions. He was spoken to in

       a disrespectful manner and told not to come to work on several

       occasions.

Nineteen workers signed his petition.

       {¶9}   On June 17, 2009, Stallworth received a call from Quinton Wilson.

Wilson told him that he could return to work on his next scheduled shift, but that he

would receive a coaching.      Stallworth returned to work, but did not receive a

decision-day coaching until mid-July 2009. In a decision-day coaching, the recipient

of the coaching is given a paid day off work and is instructed to write a plan of action

explaining how the employee’s behavior will change. If the plan of action is deemed

acceptable, the employee is permitted to return to work. Stallworth refused to sign

the decision-day coaching and was sent home according to policy. He returned the

following day and submitted his plan of action to assistant manager Rowena DeHart.

She told Stallworth that she did not know if it would be deemed acceptable.

       {¶10} After submitting his plan of action, Stallworth went home.             He

continually called Wal-Mart to inquire about his job. On July 14, 2009, he was told

by assistant manager Melissa Grimsley that he could not return to work.

Notwithstanding this, Wal-Mart continued to keep Stallworth on the work schedule

as an employee through July 30, 2009.

       {¶11} On July 16, 2009, Stallworth filed a charge of racial discrimination

against Wal-Mart with the Ohio Civil Rights Commission. After finding probable

cause that Wal-Mart had engaged in discriminatory practices, the commission filed a




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complaint alleging that Wal-Mart had subjected Stallworth to different terms and

conditions of employment based on his race, in violation of R.C. 4112.02. A hearing

on Stallworth’s complaint was held before an administrative law judge.

       {¶12}    Stallworth testified about the conditions of his employment and his

history with McDaniel.     The Commission presented additional testimony from

Robert Morgan, who had worked as an overnight stocker at Wal-Mart in an aisle

shared with Stallworth.    Morgan testified that although Stallworth was a hard

worker, McDaniel never seemed to have a nice word for him, was always on his case,

and scrutinized Stallworth more than other workers who were not as productive,

including Morgan himself. Morgan explained that McDaniel was disliked by a large

percentage of those he supervised. In addition, Morgan mentioned an incident in

which Stallworth had climbed up into the store racks and McDaniel had stated to

him, “You’re up there. You look like a monkey. You don’t need to be up in those

racks. It’s unsafe.”

       {¶13} William DeMoss, a Pepsi merchandiser who worked at Wal-Mart,

likewise testified that he had worked in the aisle next to Stallworth and that

McDaniel had scrutinized Stallworth more than other workers on that shift who did

not work as hard as Stallworth.

       {¶14} Assistant manager Rowena DeHart testified that Stallworth was a

great worker who always completed his work. She explained that McDaniel was

never satisfied or pleased with Stallworth’s work, and that he treated Stallworth

differently than other associates. DeHart did not care for McDaniel as a manager

because he would not give people help and would give extra work to a person who

already had too much.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶15} Wal-Mart presented testimony from Chris McDaniel.             McDaniel

explained that he had at times refused to provide extra workers to help Stallworth

because he believed that Stallworth should have been able to complete the assigned

work on his own. With respect to the argument that occurred on May 25, McDaniel

testified that Stallworth had been “shooting the breeze” with another employee when

he had asked him to finish zoning the aisle.      After Stallworth responded with

attitude, McDaniel wrote up a coaching for him. But McDaniel decided not to submit

the coaching and to have a meeting with Stallworth instead. McDaniel testified that

during the May 30 meeting, he had first apologized to Stallworth and expressed that

he wanted to start fresh. But he later decided to give the coaching to Stallworth

because Stallworth had been belligerent, had refused to take any responsibility for

their disagreement, and had called him “fucking stupid and dumb.” Lucinda Nause,

who had witnessed the May 30 meeting, testified that Stallworth had called

McDaniel “fucking stupid and dumb.”

       {¶16} Wal-Mart also presented testimony from Quinton Wilson. Wilson had

reviewed Stallworth’s plan of action and had deemed it unacceptable because

Stallworth had refused to take responsibility for his actions and had denied swearing

at McDaniel. Wilson had instructed an assistant to inform Stallworth that he could

submit a revised plan of action. But he could not remember which assistant he had

given that instruction to, and he did not know if his instruction had actually been

conveyed to Stallworth, who had not submitted a revised plan of action. Wilson

explained that Stallworth’s employment had not been terminated because of the

decision-day coaching or plan of action, but that Stallworth had been “voluntarily




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                        OHIO FIRST DISTRICT COURT OF APPEALS



terminated” for a failure to show up for work for three days without calling in after

his plan of action was not accepted.

       {¶17} Following the hearing, the administrative law judge found that Wal-

Mart had been motivated by an illegal discriminatory animus and that Stallworth

was entitled to relief as a matter of law. The Commission adopted the administrative

law judge’s report and issued a cease-and-desist order to Wal-Mart. Specifically, the

Commission ordered Wal-Mart to stop all discriminatory practices in violation of

R.C. Chapter 4112, make a timely offer of employment to Stallworth for the position

of third-shift stocker, and issue a check for back pay to Stallworth in the amount of

$99,199.48.

       {¶18} Wal-Mart filed a petition for judicial review of the Commission’s order

with the Hamilton County Court of Common Pleas. The trial court ordered Wal-

Mart to comply with the Commission’s cease-and-desist order.

                                 Standard of Review


       {¶19} Pursuant to R.C. 4112.06(E), when reviewing a final order issued by

the Commission, the trial court must affirm the Commission’s order if it was

supported by reliable, probative and substantial evidence. See Bd. of Edn. v. Ohio

Civ. Rights Comm., 1st Dist. Hamilton No. C-990259, 2000 Ohio App. LEXIS 5850,

*6-7 (Dec. 15, 2000).

       {¶20} This court’s review is more limited. We must determine whether the

trial court abused its discretion in finding that the Commission’s order was

supported by reliable, probative, and substantial evidence. See Ohio Civ. Rights

Comm. v. Case W. Reserve Univ., 76 Ohio St.3d 168, 177, 666 N.E.2d 1376 (1996).

An abuse of discretion connotes more than an error of law or judgment, and it



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                      OHIO FIRST DISTRICT COURT OF APPEALS



implies that the trial court’s decision was arbitrary, unreasonable, or unconscionable.

Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982).

       {¶21} Wal-Mart argues in its first assignment of error that the trial court

erred by failing to provide any support in law or from the record for its judgment.

We find no merit to this argument. The trial court clearly indicated in its entry that it

was reviewing the Commission’s cease-and-desist order to determine whether there

was reliable, probative and substantial evidence to support the administrative law

judge’s decision. And it is clear from the record that the trial court had reviewed the

proceedings below. The trial court stated that although it probably would have

weighed the evidence differently, there was reliable, probative, and substantial

evidence to support the administrative law judge’s interpretation of the evidence.

Further, there is no requirement in R.C. 4112.06 that the trial court specifically

address every argument raised before it.

       {¶22} The first assignment of error is overruled.

                         Prima Facie Case of Discrimination


       {¶23} In its second assignment of error, Wal-Mart argues that the trial court

erred by failing to determine that there was no reliable, probative, and substantial

evidence to establish a prima facie case of discrimination.

       {¶24} Stallworth’s complaint charged that Wal-Mart had discriminated

against him on the basis of his race in violation of R.C. 4112.02(A). This statute

provides that it is an unlawful and discriminatory practice

       For any employer, because of the race, color, religion, sex, military

       status, national origin, disability, age, or ancestry of any person, to

       discharge without just cause, to refuse to hire, or otherwise to



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       discriminate against that person with respect to hire, tenure, terms,

       conditions, or privileges of employment, or any matter directly or

       indirectly related to employment.

       {¶25} A burden-shifting analysis is used to determine whether an employer

engaged in a discriminatory practice prohibited by R.C. 4112.02. See Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 67 L.Ed.2d

207 (1981). In the first step of this analysis, the plaintiff bears the burden of proving

a prima facie case of discrimination by a preponderance of the evidence. Id. at 253.

If the plaintiff meets that burden, the burden then shifts to the defendant to provide

a legitimate, nondiscriminatory reason for the employee’s termination or other

adverse employment action. Id. In the last step of the analysis, the burden shifts

back to the plaintiff to establish by a preponderance of the evidence that the

legitimate reason proffered by the defendant was a mere pretext for discrimination.

Id.

       {¶26} A plaintiff may establish a prima facie case of discrimination in one of

two ways. First, the plaintiff may present direct evidence of discrimination. See

Mauzy v. Kelly Servs., 75 Ohio St.3d 578, 587, 664 N.E.2d 1272 (1996). Or, a

plaintiff may establish a prima facie case of discrimination by showing (1) that he is a

member of a racial minority or protected class; (2) that he was qualified for the

position; (3) that he suffered an adverse employment action or that his employment

was terminated; and (4) that similarly-situated nonprotected employees were treated

differently. Greene v. Cincinnati, 1st Dist. Hamilton No. C-070830, 2008-Ohio-

4908, ¶ 17; Burdine at 253.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



        {¶27} With respect to this latter element necessary to establish a prima facie

case, a plaintiff need not demonstrate an exact correlation with the similarly-situated

employee. Greene at ¶ 18. It is sufficient to show that each had the same supervisor,

had been subjected to the same standards, and had engaged in the same conduct

without differentiating or mitigating circumstances. Id.; Ercegovich v. Goodyear

Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.1998).

        {¶28} Wal-Mart argues that Stallworth failed to establish a prima facie case

of discrimination because the record did not demonstrate that a similarly-situated

nonprotected employee had been treated differently. Wal-Mart does not challenge

any other findings regarding the burden-shifting analysis. Specifically, Wal-Mart

compares Stallworth to other employees who had used profanity in the workplace. It

argues that because Stallworth had directed his profanity at a supervisor, he was not

similarly situated to any other employees who had used profanity at work. However,

the administrative law judge specifically found that Stallworth had not used

profanity during his meeting with McDaniel and Nause, and this finding was

supported by the record. Notwithstanding this finding, the allegations of profanity

become irrelevant because Stallworth established the last element of his prima facie

case by comparing himself to a broader class, the overnight stockers at Wal-Mart.

The administrative law judge had found that McDaniel had treated Stallworth less

favorably than similarly situated Caucasian overnight stockers.

        {¶29} Stallworth was the only African-American overnight stocker at Wal-

Mart.     All overnight stockers were subjected to the same standards and

responsibilities, and all were supervised by McDaniel. Stallworth testified in detail




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                       OHIO FIRST DISTRICT COURT OF APPEALS



regarding McDaniel’s treatment of him, including McDaniel’s refusal to provide

Stallworth with additional help that he would provide to Caucasian stockers.

       {¶30} Corroborating testimony was presented from a supervisor and other

employees. Former overnight stocker Robert Morgan testified that McDaniel had

scrutinized Stallworth more than the other employees who did not perform as

efficiently as Stallworth, and that McDaniel was “always on Stallworth’s case.”

Likewise, William DeMoss testified that McDaniel would scrutinize Stallworth more

than other third-shift workers who would “screw off.” Assistant Manager Rowena

DeHart testified that Stallworth was a great worker, but that McDaniel was never

satisfied with his work. She further testified that McDaniel did not treat other

overnight stockers in the same manner. Morgan, DeMoss, and DeHart all testified

that they believed McDaniel had treated Stallworth differently because he was

African-American.

       {¶31} Because the record contained reliable, probative and substantial

evidence that Stallworth had been treated differently and had been subjected to

different conditions of employment than similarly-situated Caucasian overnight

stockers, the trial court did not abuse its discretion in finding that Stallworth had

established a prima facie case of discrimination. The second assignment of error is

overruled.

                                    “Cat’s Paw” Liability


       {¶32} In its third assignment of error, Wal-Mart argues that the trial court

erred in failing to conclude that there was no evidence to support the Commission’s

finding of “cat’s paw” liability.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} A “cat’s paw” is “a person used by another to accomplish the other’s

purposes.” Smith v. Ohio Dept. of Pub. Safety, 2013-Ohio-4210, 997 N.E.2d 597, ¶

55 (10th Dist.). In an employment context, a “cat’s paw” is an unbiased supervisor

with decision-making ability who is influenced, or used as a dupe, by a biased

subordinate without decision-making ability to facilitate a            discriminatory

employment action. Id. “Cat’s paw” liability may be imposed on an employer when

“one of its agents committed an action based on discriminatory animus that was

intended to cause, and did in fact cause, an adverse employment decision.” Staub v.

Proctor Hosp., 562 U.S. 411, 421, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011).

       {¶34} In this case, the Commission adopted the administrative law judge’s

finding that Quinton Wilson, the ultimate decision-maker in Stallworth’s firing, had

been motivated by McDaniel’s discriminatory animus and had been a “cat’s paw.”

The Commission found that the decision to issue a decision-day coaching to

Stallworth had been based on McDaniel’s statements that Stallworth had used

profanity and had been insubordinate towards him during the May 30 meeting. It

further found Stallworth had not in fact been insubordinate and had not used

profanity.

       {¶35} We have already discussed the evidence in the record pertaining to

McDaniel’s discriminatory animus. We now consider whether that animus led to

Stallworth’s firing. Wal-Mart contends that Stallworth was fired not because of

McDaniel’s statements, but rather that his employment was “voluntarily terminated”

on July 30, 2009, because he had failed to show up for work for three days without

calling in. The administrative law judge specifically rejected this argument after

finding that a Wal-Mart employee had told Stallworth on July 14 that he could not




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                     OHIO FIRST DISTRICT COURT OF APPEALS



return to work and that Stallworth had repeatedly called from that date on in an

attempt to have his employment reinstated. That finding was supported by reliable,

probative, and substantial evidence, as was the judge’s finding that Stallworth had

not used profanity or been insubordinate in his meeting with McDaniel. Stallworth

denied using profanity in the meeting. And in a report written after the meeting,

McDaniel did not include any statements indicating that Stallworth had used

profanity. During the administrative hearing, McDaniel attempted to explain that

omission by testifying that he had purposely not included it in his report because it

would have been inappropriate. But McDaniel also failed to inform co-manager

Chris Mitchell that Stallworth had directed profanity towards him during the

meeting that Mitchell had initiated shortly after the incident.     It was not until

Stallworth left the meeting that McDaniel informed Mitchell about Stallworth’s use

of profanity.

        {¶36} The decision to ultimately terminate his employment was based on

McDaniel’s allegation, motivated by a racial animus and found by the administrative

law judge to be false, that Stallworth had used profanity and had been insubordinate.

Consequently, we hold that the trial court did not abuse its discretion by failing to

find that there was no evidence to support the Commission’s finding of “cat’s paw”

liability.

        {¶37} The third assignment of error is overruled.

                               Mitigation of Damages


        {¶38} In its fourth assignment of error, Wal-Mart contends that the trial

court erred in failing to conclude that Stallworth had not met his statutory duty to




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                     OHIO FIRST DISTRICT COURT OF APPEALS



mitigate his damages. The Commission had awarded Stallworth $99,199.48 in back

pay.

       {¶39} Stallworth testified at the administrative hearing that he began looking

for employment approximately two months after he was terminated by Wal-Mart.

His fiancé helped him apply for jobs, but few were available because of a recession at

the time. He had applied for employment at Kroger, K-Mart, UDF, Best Buy, DHL,

and as a dietary aide. Stallworth was able to obtain part-time seasonal employment

at Best Buy in late 2010.     Around the same time he also obtained part-time

employment with DHL, working 20 hours a week. He did not continue to look for

additional employment while working at DHL because he had hoped to be hired on

full time. Stallworth voluntarily left DHL in the end of 2011 because his family had

become homeless, and they were unable to qualify for cash assistance when he was

employed.

       {¶40} Wal-Mart contends that the Commission’s award of back pay was an

abuse of discretion because Stallworth had failed to mitigate his damages by looking

for alternative employment. Stallworth did have a duty to attempt to mitigate his

damages by looking for employment substantially equivalent to that which he had

been terminated from. See Jordan v. Ohio Civ. Rights Comm., 173 Ohio App.3d 87,

2007-Ohio-3830, 877 N.E.2d 693, ¶ 43 (12th Dist.). But the failure to mitigate

damages is an affirmative defense that may be asserted by an employer. See Finch v.

Xavier Univ., 689 F.Supp.2d 955, 969 (S.D.Ohio 2010). To establish that Stallworth

had failed to mitigate damages, Wal-Mart had to show that substantially-equivalent

positions had been available, and that Stallworth had failed to use due diligence




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                       OHIO FIRST DISTRICT COURT OF APPEALS



when seeking out those positions. See Hollingsworth v. Time Warner Cable, 168

Ohio App.3d 658, 2006-Ohio-4903, 861 N.E.2d 580, ¶ 69 (1st Dist.).

       {¶41} Wal-Mart did not meet its burden. It introduced no evidence of any

substantially-equivalent positions that had been available at the time that Stallworth

had been looking for employment. Consequently, we hold that the trial court did not

abuse its discretion in failing to find that Stallworth had not mitigated his damages.

       {¶42}    The fourth assignment of error is overruled, and the judgment of the

trial court is affirmed.

                                                                      Judgment affirmed.



CUNNINGHAM and DEWINE, JJ., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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