[Cite as Bower v. Henry Cty. Hosp., 2013-Ohio-2844.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




MEAGAN BOWER, M.D.,

        PLAINTIFF-APPELLANT,                             CASE NO. 13-12-46

        v.

HENRY COUNTY HOSPITAL, ET AL.,                           OPINION

        DEFENDANTS-APPELLEES.




                 Appeal from Seneca County Common Pleas Court
                            Trial Court No. 10CV0649

                                     Judgment Affirmed

                              Date of Decision: July 1, 2013




APPEARANCES:

        John D. Franklin for Appellant

        Jennifer J. Dawson and Jill K. Bigler for Appellees
Case No. 13-12-46


ROGERS, J.

        {¶1} Plaintiff-Appellant, Meagan Bower, M.D., appeals the judgment of the

Court of Common Pleas of Seneca County granting summary judgment in favor of

Defendants-Appellees,         Henry      County       Hospital     (“HCH”)       and     Kimberly

Bordenkircher (collectively, “Appellees”), on her claim for gender discrimination

under R.C. 4112.02. On appeal, Dr. Bower argues that the trial court erred in

granting summary judgment because it improperly concluded that there was not an

employer/employee relationship between her and Appellees.                       Dr. Bower also

asserts that there is a genuine issue of material fact as to whether Appellees

engaged in discriminatory practices when they terminated her employment. For

the reasons that follow, we affirm the trial court’s judgment.

        {¶2} This matter arose from Dr. Bower’s termination from her placement as

an occupational health physician at HCH on March 30, 2007, which was also the

day that her employment ended with the company that placed her at HCH, Ohio

Occupational Health P.C., Inc. (“OOH”). Dr. Bower filed her original complaint

on December 28, 2010, naming Appellees and OOH as defendants.1 The original

complaint asserted both a breach of contract and gender discrimination claim

against all of the named defendants. After the filing of various motions to dismiss,


1
  Dr. Bower also named Select Medical Corporation (“Select”) and HealthLink of Henry County Hospital
(“HealthLink”) as defendants. However, on July 12, 2011, Select was dismissed from this matter on the
basis that it was not Dr. Bower’s employer. Dr. Bower has not questioned this dismissal on appeal.
Moreover, Dr. Bower did not include HealthLink as a defendant in her amended complaint.

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Case No. 13-12-46


however, Dr. Bower filed an amended complaint, with leave of court, on June 14,

2011. The amended complaint only asserted the breach of contract claim against

OOH and reasserted Dr. Bower’s gender discrimination claim against OOH and

Appellees.

                 The Commencement of Dr. Bower’s Employment

      {¶3} OOH was a physician corporation that provided occupational health

services to HCH.     Dr. Robert Marshall served as president of OOH while

Bordenkircher was HCH’s chief executive officer. Pursuant to an April 2006

agreement executed by Dr. Marshall and Bordenkircher (the “2006 Agreement”),

OOH was responsible for recruiting and hiring a physician to provide occupational

health services to HCH. The 2006 Agreement explicitly provided that “nothing in

this Agreement is intended to create an employer-employee relationship * * *.”

(Docket No. 53, Exhibit “2,” p. 2). However, it stated that the person recruited for

the placement would “be joining * * * the HCH’s medical staff * * *.” (Id. at p.

4). Further, the 2006 Agreement allowed an HCH representative to be involved in

the recruitment process and provided HCH “the right to request the removal of any

* * * medical personnel provided.” (Id.).

      {¶4} Dr. Marshall subsequently recruited Dr. Bower, who executed a one-

year employment agreement (the “Employment Agreement”). The Employment

Agreement stated that “[t]he Employer [OOH] hereby employs the Employee [Dr.


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Bower] and the Employee hereby accepts such employment with the Employer * *

*.” (Docket No. 2, Exhibit “A,” p. 1). As part of this relationship, OOH agreed to

place Dr. Bower in hospitals, businesses, and other health facilities to provide

occupational health services. The Employment Agreement outlined that OOH was

responsible for paying Dr. Bower’s salary and providing her with certain

enumerated employment benefits, such as vacation time, sick leave, and

malpractice insurance. Additionally, it required Dr. Bower to “devote [her] full

time, attention, and energy exclusively to the business of [OOH]” and “to devote

[her] full time professional services [on] behalf of [OOH].” (Id. at p. 1, 15). After

the execution of the Employment Agreement, OOH placed Dr. Bower with HCH’s

occupational health program, where she was responsible for providing health

services not only at HCH but also at a variety of off-campus locations.

       {¶5} In his deposition, Dr. Marshall discussed Dr. Bower’s employment

status under the Employment Agreement. He explicitly identified Dr. Bower as

OOH’s employee and said that she was never an employee of HCH. Further, Dr.

Marshall often referred to HCH as “our customer,” meaning his and Dr. Bower’s,

when discussing Dr. Bower’s performance. (Docket No. 52, p. 86, 95, 117).

Nevertheless, Dr. Marshall also indicated that Bordenkircher had to approve Dr.

Bower’s hiring before she was placed at HCH. As part of his deposition, Dr.

Marshall also identified several documents. One was a letter from OOH’s Human


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Case No. 13-12-46


Resources Manager to Dr. Bower that said “Welcome to [OOH].” (Docket No.

52, Exhibit “7”). Another was a pay stub issued by OOH to Dr. Bower showing

its payment of her salary and the withholding of relevant taxes.

       {¶6} Dr. Bower also discussed her employment status in her deposition.

She admitted that OOH was responsible for terminating her, and identified the

letter of termination that Dr. Marshall gave to her. The letter stated that “[d]ue to

correspondence received from the administration at [HCH], the purpose of this

correspondence is to provide you with written notice of termination of your

employment with [OOH].” (Docket No. 51, Exhibit “I”). Despite this admission,

Dr. Bower testified that she never knew the identity of her employer:

       Q: At that time [during discussions with Dr. Marshall regarding
       her hiring], did [Dr. Marshall] explain to you that the employment
       relationship would be with [OOH]?

       A:   No. He said I had to meet Ms. Bordenkircher.

       Q: When did you first come to realize that your employer would
       be [OOH]?

       A:   I never knew.

       Q:   Well, you signed an employment agreement with [OOH], right?

       A:   Yes, I had a contract.

       Q: So at some point – well, maybe it was when you signed the
       contract you understood then that your employer would be [OOH]?

       A: I was never clear on exactly for whom I worked. I asked and
       nobody told me. (Docket No. 51, p. 44-45).

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Case No. 13-12-46



       {¶7} As to the responsibility for the decision to hire her, Dr. Bower

testified as follows:

       Q:    So it’s your belief that you were employed by [HCH]?

       A: They had a say in my employment, yes. I had to meet and be
       approved by Ms. Bordenkircher and that I was terminated based on
       her recommendation. (Id. at p. 94).

Dr. Bower also testified that HCH did not “directly” pay her salary or benefits.

(Id. at p. 52).

                    The Circumstances of Dr. Bower’s Removal

       {¶8} Dr. Bower’s placement at HCH began in September 2006.

Bordenkircher explained that that she decided to request the end of Dr. Bower’s

placement on the basis of 10 to 15 complaints regarding her “unprofessional

behavior in general.”      (Docket No. 53, p. 121).         These complaints of

unprofessional behavior included reports that Dr. Bower had solicited a personal

sample of prescription drugs from a company representative, was in the

Maintenance Department as opposed to her assigned department on several

occasions, and brought her daughter to the hospital on one occasion.

Bordenkircher also discussed complaints made by other employees as to

“uncomfortable conversations” with Dr. Bower.         (Id. at p. 143).    Further,

Bordenkircher testified to a personal interaction with Dr. Bower in which Dr.



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Case No. 13-12-46


Bower discussed a patient’s condition while the two were in the cafeteria line,

which she considered a breach of confidentiality.

      {¶9} After receiving these complaints, Bordenkircher contacted Dr.

Marshall in an attempt to resolve the issues. She also had a meeting with Dr.

Bower, which Bordenkircher described as follows:

      A: It would be my guess estimate that * * * I started off the
      conversation * * * that over a period of time numerous incidents had
      been reported to me regarding the drug rep, the daughter, the
      meetings in maintenance, people feeling uncomfortable with
      conversations Dr. Bower had in the cafeteria. There was a
      conversation Dr. Bower had with me in the cafeteria that made me
      uncomfortable and I shared all those episodes with Dr. Bower to
      indicate that whether or not they were true, they were people’s
      perception of her behavior and that Henry County was a fairly
      conservative county and we’re a very small hospital so things get
      around and that I wanted her to kind of do a check of her behavior
      and her approaches to things and make some changes so that we
      could positively influence people’s perceptions regarding her in the
      building.

      Q:    What did she say in response * * *?

      A: My memory has it that she was very defensive. She denied
      everything.

      Q:    Okay.

      A: She indicated that people’s perception was not that – not that
      their individual perceptions were not valid, but that reaction to
      people’s perceptions was not indicated. Took no responsibility for
      behavior or performance and it was – it ended on a very hostile,
      negative note. (Id. at 143-44).




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Case No. 13-12-46


After providing this testimony, Bordenkircher identified the letter that she sent to

Dr. Marshall in which she requested Dr. Bower’s removal. The letter reads as

follows:

       I am writing to request that Dr. Megan Bower be removed from
       HealthLink of Henry County Hospital effective April 2, 2007.

       As we have discussed, Dr. Bower has demonstrated unprofessional
       behavior, as indicated by her comments regarding “hiding out,”
       spending break time in the maintenance department, and being
       perceived as flirtatious by several individuals. The issue was
       compounded during the meeting in which I shared my concerns with
       Dr. Bower. She accepted no responsibility for her behaviors or their
       affect [sic] on how others perceive her and HealthLink of Henry
       County Hospital.

       I have concerns that her lack of professionalism will negatively
       impact HealthLink. (Docket No. 53, Exhibit “3”).

When pressed as to the meaning of “flirtatious,” Bordenkircher testified that she

did not consider the term to be stereotypic.

       {¶10} Dr. Marshall’s deposition also covered Dr. Bower’s job performance

during her placement at HCH. He indicated that he received complaints regarding

Dr. Bower’s tardiness to work, an incident in which she allegedly breached a

sterile field while stitching a patient’s wound, and an incident in which Dr. Bower

said “s[---].” As a result of these complaints, Dr. Marshall had a meeting with Dr.

Bower to make her “underst[and] that she represented not only herself, but [OOH]

as well as Memorial Hospital and that sometimes in order to make things work

well, we just have to remember that we’re in a different environment and that we

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Case No. 13-12-46


have to do the best we can to make sure we represent everybody well.” (Docket

No. 52, p. 65).

       {¶11} Dr. Marshall further described Bordenkircher’s discussion of Dr.

Bower’s purportedly unprofessional behavior as follows:

       A: Mrs. Bordenkircher * * * described to me that Dr. Bower was –
       had some interest in a particular emergency room physician and that
       she made comment to staff, and I can’t tell you specifically what
       staff that she had some interest in dating him and that she also felt
       that going down and having lunch with the maintenance people was
       not a typical action that physicians would do.

       Q:    Is this part of the flirtation?

       A:    Yes. (Id. at p. 76).

When describing what he understood flirtatious to mean, Dr. Marshall indicated

that the term equally applied to men and women. Dr. Marshall also said that he

learned from Bordenkircher that Dr. Bower had expressed romantic interest in an

emergency department physician. According to Dr. Marshall, “[Bordenkircher]

felt that [Ms. Bower’s behavior] didn’t represent a type of behavior she wanted in

her hospital.” (Id. at p. 80).

       {¶12} Based on Bordenkircher’s concerns, she asked Dr. Marshall for

permission to meet with Dr. Bower without Dr. Marshall being present. Dr.

Marshall indicated that he gave such permission and that after this meeting, he

received the letter described above regarding the removal of Dr. Bower. After

receiving the letter, Dr. Marshall indicated that he sought another placement for

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Case No. 13-12-46


Dr. Bower. However, he was unable to secure one. Because of this inability to

secure an alternative placement and her removal from the HCH placement, Dr.

Marshall decided to terminate Dr. Bower from her employment with OOH. Dr.

Marshall subsequently replaced Dr. Bower at HCH with another female physician.

               Basis for Dr. Bower’s Gender Discrimination Claim

        {¶13} Dr. Bower denied being flirtatious and unprofessional during her

time at HCH. She indicated in her deposition that her termination resulted from

Appellees’ stereotypic views of women. Specifically, Dr. Bower testified that she

was wrongfully fired on the basis of being “flirtatious,” which she said was “a

negative stereotype traditionally applied to women * * *.” (Docket No. 51, p.

166).

        {¶14} Dr. Bower further explained that she believed she was treated

differently by Bordenkircher than other male doctors who were faced with similar

complaints of unprofessional behavior. In doing so, she discussed the example of

Dr. Sungurlu, an emergency department physician at HCH. She indicated that on

one occasion, Dr. Sungurlu showed her graphic images on an HCH computer. Dr.

Bower provided the following testimony as to the graphic images:

        Q: Without getting too graphic, what do you mean by “graphic
        images”?

        A: There were morbidly obese women in lingerie on the computer
        screen and he showed it to me. I mean, there were other nurses
        around. (Id. at p. 94).

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Case No. 13-12-46



Dr. Bower also discussed another male doctor at HCH, who “had requested that

the attractive female physical therapists wear bikinis with HCH over the parts of

the bikini” and who communicated his desire “to see the equivalent of mud

wrestling * * * in the therapy pool between the attractive therapists.” (Id. at p.

91). Both of these male doctors, according to Dr. Bower, received different

treatment than she did.

         {¶15} Bordenkircher’s deposition likewise addressed how she handled

previous complaints of unprofessional behavior. She acknowledged that despite

the receipt of complaints regarding Dr. Bower, she did not engage in any

additional investigation to corroborate the allegations contained in them. This lack

of investigation was different from several previous incidents in which

Bordenkircher requested the removal of male physicians that other physician

corporations placed at HCH.                        Each of these previous incidents, and

Bordenkircher’s responses, are outlined below in turn.

         {¶16} In regard to Dr. S.,2 Bordenkircher discussed an accusation that he

offered prescriptions to patients in return for sexual favors. Bordenkircher learned

of the allegations by reading a newspaper article. To corroborate the allegations,

she called the state medical board and the owner of the physician corporation that



2
 To protect the identities of these doctors, we have elected to use their initials as opposed to their full
names.

                                                      -11-
Case No. 13-12-46


placed Dr. S. at HCH. It was only after these phone calls that Bordenkircher

requested Dr. S.’s removal.

      {¶17} Bordenkircher also discussed the removal of Dr. C. as follows:

      Q:   Why did you request that Dr. [C.] be removed?

      A: We got some complaints from two different physician extender
      schools, they were physician assistant programs, that students that
      were assigned to Henry County Hospital emergency room reported
      that Dr. [C.] disrobed and had them do detailed physical
      assessments.

      Q:   What type of exams?

      A: Prostate exams and a complete head-to-toe physical. (Docket
      No. 53, p. 97).

After learning of these reports, Bordenkircher engaged in an investigation that

included discussions with representatives from both physician assistant programs,

the chairman of HCH’s board of directors, and Dr. C. himself.        After these

discussions, Dr. C. was removed from his position.

      {¶18} Bordenkircher further testified that two other doctors, whose names

she could not remember, were similarly removed from their placements at HCH.

Both had visited pornographic websites, including those depicting sexual assault,

and had “provid[ed themselves] sexual release” during their time on the clock in

the emergency department. (Id. at p. 108). In both instances, Bordenkircher

instructed HCH’s technology staff to recover the internet histories for the

computers that the doctors used and she discussed the incidents with both the

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Case No. 13-12-46


offending doctors and the chairman of HCH’s board of directors. Again, only

after this investigation was complete did Bordenkircher request the doctors’

removal from their placements.

                      Appellees’ Motion for Summary Judgment

      {¶19} On February 16, 2012, Appellees filed their motion for summary

judgment on the grounds that they were not Bower’s employer and that there was

no genuine issue of material fact regarding the existence of discrimination. The

trial court granted the motion for summary judgment on May 29, 2012 on the basis

that there was no employer-employee relationship between Appellees and Dr.

Bower. It did not address the issue of whether there was a genuine issue of

material     fact   regarding   Appellees’    purported   discriminatory   actions.

Consequently, the trial court dismissed Dr. Bower’s gender discrimination claim

against Appellees. On September 27, 2012, the parties filed a stipulated order of

dismissal in which Dr. Bower dismissed her remaining claims against OOH with

prejudice.

      {¶20} Dr. Bower timely appealed this judgment, presenting the following

assignment of error for our review.

                                Assignment of Error

      THE TRIAL COURT COMMITTED PREJUDICIAL AND
      REVERSIBLE ERROR WHEN IT GRANTED APPELLEE’S
      MOTION FOR SUMMARY JUDGMENT GIVEN THERE
      ARE GENUINE ISSUES OF FACTUAL DISPUTE IN THE

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Case No. 13-12-46


       RECORD AND THE APPELLEES ARE NOT ENTITLED TO
       JUDGMENT AS A MATTER OF LAW.

       {¶21} In her sole assignment of error, Dr. Bower argues that the trial court

improperly granted summary judgment in favor of Appellees on her claim for

gender discrimination. Since we agree with the trial court’s finding that there was

no employment relationship between Appellees and Dr. Bower, we disagree with

Dr. Bower.

                       Summary Judgment Standard

       {¶22} An appellate court reviews a summary judgment order de novo.

Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175 (8th Dist.

1999). Accordingly, a reviewing court will not reverse an otherwise correct

judgment merely because the lower court utilized different or erroneous reasons as

the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distrib. Co., 148 Ohio App.3d 596, 2002-Ohio-3932, ¶ 25 (3d Dist.),

citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d

217, 222 (1994). Summary judgment is appropriate when, looking at the evidence

as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving

party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this

analysis the court must determine “that reasonable minds can come to but one

conclusion and that conclusion is adverse to the party against whom the motion for

summary judgment is made, [the nonmoving] party being entitled to have the

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Case No. 13-12-46


evidence or stipulation construed most strongly in the [nonmoving] party’s favor.”

Id. If any doubts exist, the issue must be resolved in favor of the nonmoving

party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-59 (1992).

       {¶23} The party moving for summary judgment has the initial burden of

producing some evidence which demonstrates the lack of a genuine issue of

material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the

moving party is not required to produce any affirmative evidence, but must

identify those portions of the record which affirmatively support his argument. Id.

at 292. The nonmoving party must then rebut with specific facts showing the

existence of a genuine triable issue; he may not rest on the mere allegations or

denials of his pleadings. Id.; Civ.R. 56(E).

                                   R.C. 4112.02

       {¶24} Dr. Bower has brought her gender discrimination claim under R.C.

4112.02, which generally prohibits employers from discriminating against

employees on the basis of a protected trait. The statute specifically provides, in

pertinent part, as follows:

       It shall be an unlawful discriminatory practice:

       (A) For any employer, because of the * * * sex * * * of any person,
       to discharge without cause * * * or to otherwise discriminate against
       the person with respect to hire, tenure, terms, conditions, or
       privileges of employment, or any matter directly or indirectly related
       to employment.


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Case No. 13-12-46


       (B) For an employment agency or personnel placement service,
       because of * * * sex * * * to do any of the following:

      ***

       (2) Comply with a request from an employer for referral of
       applications for employment if the request directly or indirectly
       indicates that the employer fails to comply with the provisions of
       Sections 4112.01 to 4112.07 of the Revised Code.

Courts are instructed to construe R.C. 4112.02’s protections “liberally for the

accomplishment of its purposes.” R.C. 4112.08; accord Ohio Civ. Rights Comm.

v. Lysyj, 38 Ohio St.2d 217, 220 (1974) (“[C]ourts, upon review, are to construe

[Chapter 4112] liberally in order to effectuate the legislative purpose and

fundamental policy implicit in [its] enactment * * *.”), superseded by statute on

other grounds as stated in Rice v. CertainTeed Corp., 84 Ohio St.3d 417 (1999).

       {¶25} Under R.C. 4112.01(A)(1), a “person” is defined as “one or more

individuals,   partnerships,   associations,   organizations,   corporations,   legal

representatives, trustees, trustees in bankruptcy, receivers, and other organized

groups of persons.” The statute further defines the term as including “any owner,

lessor, assignor, builder, manager, broker, salesperson, appraiser, agent, employee,

lending institution, and the state and all political subdivisions, authorities,

agencies, boards, and commissions of the state.”         Id.    R.C. 4112.01(A)(2),

meanwhile, defines “employer” as “the state, any political subdivision of the state,

any person employing four or more persons within the state, and any person acting


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directly or indirectly in the interest of an employer.” An “employee,” under the

statute, means “any individual employed by any employer * * *.”              R.C.

4112.01(A)(3). Finally, R.C. 4112.01(A)(5) defines an “employment agency” as

“any person regularly undertaking, with or without compensation, to procedure

opportunities to work or to procure, recruit, refer, or place employees.”

                  Dr. Bower’s Employment Status with Appellees

       {¶26} Dr. Bower phrases the issue presented in this matter as “whether

OOH was merely an ‘Employment Agency’ as defined under R.C. 4112.01(A)(5)

and HCH was actually where [Dr.] Bower was placed during her employment.”

Appellant’s Br., p. 9. This is not the appropriate framing of the issue. Dr. Bower

never alleged in her amended complaint or any of her pleadings that OOH was an

employment agency. Instead, she specifically alleged that OOH was an employer

and person under R.C. 4112.01(A)(1) and (2). (Docket No. 30, p. 2). As a result,

Dr. Bower has waived the issue of whether OOH was an employment agency and

whether she can recover under R.C. 4112.02(B). See Marmet Drug Task Force v.

Paz, 3d Dist. No. 9-11-60, 2012-Ohio-4882, ¶ 42 (“It is well-established that an

argument that is not advanced in the trial court is waived for the purposes of

appeal.”), citing Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-

3626, ¶ 34.




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Case No. 13-12-46


      {¶27} Rather, the proper issue before us is whether Appellees and Dr.

Bower had an employer-employee relationship that is covered by R.C.

4112.02(A). This issue can further be encapsulated as whether Dr. Bower is an

independent contractor or Appellees’ employee. This is the proper framing of the

issue involved in this matter because it is well-settled that to prevail under R.C.

4112.02(A), a plaintiff must “establish that she is an employee [of the defendant].”

Koballa v. Twinsburg Youth Softball League, 9th Dist. No. 23100, 2006-Ohio-

4872, ¶ 21; accord Bansal v. Mt. Carmel Health Sys., 10th Dist. No. 10AP-1207,

2011-Ohio-3827, ¶ 22 (finding that physician-plaintiff could not pursue a R.C.

4112.02(A) claim against defendant-hospital because he was not an employee of

the hospital); Warnsley v. Toledo Bd. of Edn., 6th Dist. No. L-10-1219, 2011-

Ohio-3134, ¶ 47 (“Appellee is not appellant’s employer * * * [so] the trial court

did not err in granting appellee summary judgment on her R.C. 4112.02(A)

claim.”); Cooper v. Jones, 4th Dist. No. 05CA7, 2006-Ohio-1770, ¶ 31 (“No

evidence exists that an employer-employee relationship existed between appellant

and appellees * * *.     Thus, R.C. Chapter 4112 does not apply.”); Berge v.

Columbus Community Cable Access, 136 Ohio App.3d 281, 299-301 (10th Dist.

1999) (finding that plaintiff could not pursue R.C. 4112.02(A) claim since he did

not present evidence of an employment relationship with the defendant); see also

Perron v. Hood Industries, Inc., 6th Dist. No. L-06-1396, 2007-Ohio-4478, ¶ 42


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Case No. 13-12-46


(“Because R.C. 4112.14(A) [anti-age discrimination statute with similar language

to R.C. 4112.02(A)] refers to employment discrimination between an employer

and an employee, we find that * * * an independent contractor * * * is not entitled

to pursue a claim pursuant to this statute.”).

         {¶28} Status as an “employee” is largely dependent “upon the degree to

which [the purported employee] is economically dependent upon the institution

charged with discrimination.” Neff v. Civ. Air Patrol, 916 F.Supp. 710, 712 (S.D.

Ohio 1996).3 Essentially, to determine whether a party is an employee or an

independent contractor, we must resolve the central question of “who had the right

to control the manner or means of doing the work[?]” Bostic v. Connor, 37 Ohio

St.3d 144 (1988), paragraph one of the syllabus. This inquiry is fact-intensive and

requires the consideration of a multitude of factors, none of which are dispositive

by themselves. Id. at 146. According to the common law agency test, adopted by

the United States Supreme Court and several Ohio courts, we should consider the

following relevant factors in this analysis:

         (1) the hiring party’s right to control the manner and means by
         which the product is accomplished; (2) the skill required to perform

3
  In her appellate brief, Dr. Bower generally criticizes Appellees’ use of federal case law to support their
position. However, we find no fault in the use of federal case law to guide our resolution of Dr. Bower’s
R.C. 4112.02 claim. See Little Forest Med. Ctr. of Akron v. Ohio Civ. Rights Comm., 61 Ohio St.3d 607,
609-10 (1991) (“[F]ederal case law interpreting Title VII of the Civil Rights Act of 1964 * * * is generally
applicable to cases involving alleged violations of R.C. Chapter 4112.”); Borad v. April Ents., Inc., 2d Dist.
No. 25092, 2012-Ohio-5096, ¶ 10 (noting that R.C. 4112.02 “is similar to federal discrimination law”);
Miller v. Potash Corp. of Saskatchewan, 3d Dist. No. 1-09-58, 2010-Ohio-4291, ¶ 16 (“In interpreting the
Ohio anti-discrimination statutes, Ohio courts have consistently looked to federal cases interpreting federal
civil rights * * * legislation, in addition to Ohio case law.”).

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Case No. 13-12-46


       the work; (3) the source of the instrumentalities and tools; (4) the
       location of the work; (5) the duration of the relationship between the
       parties; (6) whether the hiring party has the right to assign additional
       projects to the hired party; (7) the extent of the hired party’s
       discretion over when and how long to work; (8) the method of
       payment; (9) the hired party’s role in hiring and paying assistants;
       (10) whether the work is part of the regular business of the hiring
       party; (11) whether the hiring party is in business; (12) the provision
       of employee benefits; and (13) the tax treatment of the hired party.
       Perron at ¶ 32, citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
       318, 325, 112 S.Ct. 1344 (1992).

       {¶29} Here, the trial court separately considered 10 of the factors listed by

the Sixth District in Perron and concluded that Dr. Bower was not in an employer-

employee relationship with Appellees.       We find no error in the trial court’s

reasoned consideration of these factors and similarly conclude that Dr. Bower was

not Appellees’ employee.       As a result, summary judgment was appropriately

granted in Appellees’ favor.

       {¶30} Appellees had very little control over the manner in which Dr. Bower

practiced medicine.        Indeed, when complaints arose regarding Dr. Bower,

Bordenkircher’s first reaction was to inform Dr. Marshall and to get him involved

in the management of Dr. Bower’s behavior. Bordenkircher also felt compelled to

ask for Dr. Marshall’s permission to even discuss the complaints with Dr. Bower

outside of his presence.

       {¶31} The trial court properly pointed out that OOH paid Dr. Bower’s

salary, withheld her taxes, and provided her employment benefits, all of which


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support a finding that Appellees were not Dr. Bower’s employer. Moreover, Dr.

Bower signed an employment contract that identified OOH, not Appellees, as her

employer, and Dr. Marshall explicitly testified that OOH was Dr. Bower’s

employer. This identification was consistent with Dr. Marshall’s testimony that

Dr. Bower was not terminated from OOH until he was unable to find an

alternative placement for her and Bordenkircher’s testimony that she only

requested Dr. Bower’s removal from her placement at HCH.

      {¶32} Dr. Bower attempts to overcome these factors by pointing to several

facts suggesting that Appellees were her employer. Most notably, she identifies

Bordenkircher’s role in her placement and removal, HCH’s requirement that Dr.

Bower perform certain marketing services, and HCH’s role in billing patients for

Dr. Bower’s services. We are unable to find that these facts create a genuine issue

of material fact as to Dr. Bower’s independent contractor status. Entities, such as

HCH, often involve themselves in the selection of independent contractors and

they are entitled to some degree of control over contractors’ duties. See, e.g.,

Bookwalter v. Prescott, 168 Ohio App.3d 262, 2006-Ohio-585, ¶ 36 (6th Dist.)

(affirming grant of summary judgment since “[t]he fact that an entity ‘hires’ a

driver does not preclude a finding of an independent-contractor status”); Koch v.

Lind, 121 Ohio App.3d 43, 53 (10th Dist. 1997) (affirming grant of summary

judgment on basis of finding that party was an independent contractor because


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principal “did not exercise or retain the right to exercise any significant degree of

control or direction”). Additionally, HCH’s role in billing was set by the 2006

Agreement between OOH and HCH, which merely set the parameters for OOH’s

provision of an independent contractor to HCH’s occupational health department.

Further, the 2006 Agreement’s plain terms indicate that it does not create an

employer-employee relationship, so we are unable to give much weight to it in our

inquiry.

       {¶33} In light of the foregoing, we are unable to find that Dr. Bower had an

employer-employee relationship with Appellees. Consequently, the trial court

properly granted summary judgment in Appellees’ favor.

       {¶34} Accordingly, we overrule Dr. Bower’s sole assignment of error.

       {¶35} Having found no error prejudicial to Dr. Bower in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                                Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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