[Cite as Johnson v. Dept. of Youth Servs., 2018-Ohio-1499.]




AUDRA JOHNSON                                          Case No. 2017-00054JD

        Plaintiff                                      Judge Patrick M. McGrath
                                                       Magistrate Robert Van Schoyck
        v.
                                                       DECISION
OHIO DEPARTMENT OF YOUTH
SERVICES

        Defendant

        {¶1} On December 15, 2017, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). With leave of court, plaintiff filed a response on January 19,
2018.        The motion is now before the court for a non-oral hearing pursuant to
L.C.C.R. 4(D).
        {¶2} Civ.R. 56(C) states, in part, as follows:
        {¶3} “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. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, 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, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc., 50 Ohio St.2d 317 (1977).
        {¶4} It is undisputed that plaintiff was employed by defendant as an Intervention
Specialist, also known as a special education teacher, in the Ralph C. Starkey School at
Case No. 2017-00054JD                       -2-                                 DECISION
the Circleville Juvenile Correctional Facility (CJCF) beginning on January 5, 2015.
Based upon defendant’s termination of her employment approximately six months later,
plaintiff brings this action for unlawful employment discrimination on the basis of race,
and also for retaliation, in violation of R.C. 4112.02 and 4112.99.

COUNT ONE: RACE DISCRIMINATION
       {¶5} “Under Ohio law, an employer may not discharge without just cause, refuse
to hire or otherwise discriminate against an individual with respect to hire, tenure, terms,
conditions or privileges of employment ‘because of the race, color, religion, sex, military
status, national origin, disability, age, or ancestry’ of that person.” Burns v. Ohio State
Univ. College of Veterinary Med., 10th Dist. Franklin No. 13AP-633, 2014-Ohio-1190,
¶ 6, quoting R.C. 4112.02(A). The Supreme Court of Ohio has also “determined that
federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000e 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, 609-610 (1991).
       {¶6} “‘To prevail in an employment discrimination case, a plaintiff must prove
discriminatory intent’ and may establish such intent through either direct or indirect
methods of proof.” Dautartas v. Abbott Labs., 10th Dist. Franklin No. 11AP-706, 2012-
Ohio-1709, ¶ 25, quoting Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766
(10th Dist.1998). In this case, plaintiff seeks to establish discriminatory intent through
the indirect method, which is subject to the burden shifting analysis established by the
United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Nist v. Nexeo Solutions, LLC, 10th Dist. Franklin No. 14AP-854, 2015-
Ohio-3363, ¶ 31.
       {¶7} “Under McDonnell Douglas, a plaintiff must first present evidence from
which a reasonable jury could conclude that there exists a prima facie case of
discrimination.” Turner v. Shahed Ents., 10th Dist. Franklin No. 10AP-892, 2011-Ohio-
4654, ¶ 11-12. “In order to establish a prima facie case, a plaintiff must demonstrate
Case No. 2017-00054JD                           -3-                                DECISION
that he or she: (1) was a member of the statutorily protected class, (2) suffered an
adverse employment action, (3) was qualified for the position, and (4) was replaced by a
person outside the protected class or that the employer treated a similarly situated, non-
protected person more favorably.” Nelson v. Univ. of Cincinnati, 10th Dist. Franklin No.
16AP-224, 2017-Ohio-514, ¶ 33. “If the plaintiff meets her initial burden, the burden
then shifts to the defendant to offer ‘evidence of a legitimate, nondiscriminatory reason
for’ the adverse action. * * * If the defendant meets its burden, the burden then shifts
back to the plaintiff to demonstrate that the defendant’s proffered reason was actually a
pretext for unlawful discrimination.” Turner at ¶ 14.
          {¶8} In its motion, defendant does not dispute that plaintiff, who is African
American, is a member of a statutorily protected class, that she suffered an adverse
employment action in the form of her employment being terminated, and that she was
qualified for the position she held.       Defendant argues, though, that plaintiff cannot
satisfy the final element necessary for establishing her prima facie case, being that she
was either replaced by a person outside the protected class or that a similarly situated,
non-protected person was treated more favorably.
          {¶9} Plaintiff’s theory is that defendant treated a similarly situated, non-protected
person more favorably. Plaintiff identifies Tamara Lane as one such person. There is
no dispute that Lane is Caucasian. From the evidence presented, however, it cannot be
concluded that Lane was similarly situated to plaintiff, who was considered a
probationary employee inasmuch as she was in the first year of employment. Plaintiff
admitted that she did not think Lane was a probationary employee. (Johnson Depo,
p. 57.)      Indeed, Patrick Buchanan, who was the Principal of the school at all times
relevant, testified in a deposition that Lane had been employed at CJCF for several
years.      (Buchanan Depo., p. 41.)         Yolonda Frierson, Deputy Superintendent of
Programs for CJCF, explains in an affidavit that plaintiff’s status as a probationary
employee meant that she served at-will and could be terminated for any reason not
prohibited by law. (Frierson Affidavit, ¶ 2.)
Case No. 2017-00054JD                      -4-                                DECISION
      {¶10} Furthermore, the only comparison that plaintiff draws between herself and
Lane pertains to tardiness. Plaintiff stated in her deposition that she knew Lane was
often tardy because Lane was “always behind me” when clocking in. (Johnson Depo.,
p. 86.)   But according to Frierson, plaintiff’s termination was recommended by the
superintendent of CJCF “based on attendance issues, unprofessional conduct and
deficiencies in her performance.    Specific performance issues included poor quality
IEPs and incomplete progress notes.” (Frierson Affidavit, ¶ 9.) Considering that the
evidence of Lane’s conduct is limited to tardiness and does not pertain to these other
factors, and given that plaintiff was a probationary employee and Lane was not, it must
be concluded that plaintiff and Lane were not similarly situated. Mowery v. Columbus,
10th Dist. Franklin No. 05AP-266, 2006-Ohio-1153, ¶ 46 (“Federal courts have
frequently noted that probationary employees are not similarly situated to their non-
probationary co-workers”); Elgabi v. Toledo Area Regional Transit Auth., 228 Fed.Appx.
537, 542 (6th Cir.2007).
      {¶11} Plaintiff also identifies Valerie Zielinski as a non-protected person whom
she contends was similarly situated and treated more favorably. There is no dispute
that Zielinski is Caucasian, and, according to plaintiff’s deposition testimony, Zielinski
was also a probationary employee, having begun employment at CJCF about two
months before plaintiff. (Johnson Depo., p. 57.) Plaintiff also testified that she and
Zielinski held the same position and were both supervised by Buchanan and Assistant
Principal David Boso. (Id., pp. 57-58.)
      {¶12} Defendant argues, however, that Zielinski was not similarly situated
because she did not engage in the same conduct as plaintiff.         “Where the plaintiff
contends her employer treated a non-protected similarly situated person better, the
individual with whom the plaintiff seeks to compare her treatment must be similar in all
relevant respects.” Kenner v. Grant/Riverside Med. Care Found., 10th Dist. Franklin
No. 15AP-982, 2017-Ohio-1349, ¶ 33, citing Ames v. Ohio Dept. of Rehab. & Corr., 10th
Dist. Franklin No. 14AP-119, 2014-Ohio-4774, ¶ 42.        “Courts evaluate whether the
Case No. 2017-00054JD                        -5-                                DECISION
proffered individual dealt with the same supervisor, were subject to the same standards,
and engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of them
for it. A person is not similarly situated unless the conduct engaged by the proffered
individual is of ‘comparable seriousness’ to the conduct that predicted the
employee/plaintiff’s termination.” (Citation omitted.) Id. at ¶ 33.
       {¶13} As stated earlier, defendant has presented evidence that the termination of
plaintiff’s employment “was based on attendance issues, unprofessional conduct and
deficiencies in her performance.     Specific performance issues included poor quality
IEPs and incomplete progress notes.” (Frierson Affidavit, ¶ 9.) For her part, plaintiff
testified that she only recalled getting a termination letter from defendant’s director and
that she was never informed of the reasons. (Johnson Depo., pp. 50, 68.)
       {¶14} It is undisputed that special education teachers at CJCF were required to
complete IEPs (i.e. Individual Education Plans) and progress notes as part of their job
duties. Boso, the Assistant Principal, avers in his affidavit that on March 25 and 27,
2015, he sent emails to school officials documenting plaintiff’s failure to complete or turn
in progress notes for several students, and he recommended at that time that plaintiff’s
employment be terminated. (Boso Affidavit, ¶ 4.) Boso avers that on April 27, 2015, he
sent Buchanan an email documenting that plaintiff failed to complete progress notes by
the end of the most recent session on the academic calendar, but that Zielinski and
other teachers did complete theirs. (Id.) Boso avers that on May 7, 2015, he sent
plaintiff and Zielinski an email instructing them to complete their goals for two students,
but that plaintiff later responded that she was unable to do so. (Id.) Boso avers that on
May 19, 2015, he sent Buchanan an email documenting that despite being given
multiple days off to complete her IEPs, plaintiff failed to do so and another teacher had
to complete them for her. (Id.) Boso avers that on June 12, 2015, he sent an email to
Buchanan noting that plaintiff failed to produce progress notes for a particular student.
Case No. 2017-00054JD                        -6-                                   DECISION
(Id.) Boso avers that on June 23, 2015, he sent Buchanan an email noting that he met
with plaintiff to discuss a particular student’s IEP, but that it was incomplete. (Id.)
       {¶15} In addition to Boso’s dissatisfaction with plaintiff’s IEPs and progress notes,
Buchanan avers in an affidavit that he sent an email to Frierson and the superintendent
on May 19, 2015, recommending that plaintiff’s employment be terminated based in part
upon her failure to timely complete IEPs and progress notes. (Buchanan Affidavit, ¶ 5.)
And, Frierson states in her affidavit that three days later, on May 22, 2015, a meeting
was held between herself, Buchanan, the superintendent, a union representative, and
plaintiff “to discuss deficiencies in her performance regarding the poor quality of her
[IEPs], incomplete progress notes, and timekeeping issues.” (Frierson Affidavit, ¶ 5.)
According to plaintiff, she had requested this meeting herself intending to meet only with
Frierson so that she could discuss some concerns she had, but when the meeting was
actually held it involved the other individuals and criticisms were raised against her
instead, including for tardiness and failing to complete progress reports.          (Johnson
Depo., pp. 208-209.)
       {¶16} It is undisputed that each teacher had a list of students for whom they were
required to complete an IEP and progress notes. Plaintiff testified that within each IEP
there were sections that would be completed in part by other teachers pertaining to the
particular subjects that they taught, and, according to plaintiff, there was one IEP that
Buchanan criticized that had been partially completed by Zielinski. (Johnson Depo.,
p. 81.) Whether or not Zielinski shared in the completion of this particular IEP, the
evidence presented by defendant shows that there were several IEPs and progress
notes that plaintiff was responsible for which CJCF officials found deficient. Plaintiff
also has not pointed to evidence that would show that Zielinski required as much time or
supervision as plaintiff to complete her own IEPs and progress notes. Although plaintiff
asserts that “Zielinski was given an opportunity for overtime in which she could
complete her IEPs” (Response, p. 5), it is not clear what evidence plaintiff is referring to
with this statement. There is evidence, however, that plaintiff and Zielinski were both
Case No. 2017-00054JD                        -7-                                 DECISION
given time on May 8, 2015 to complete IEPs, and that plaintiff took longer to get hers
done and required more prodding from school officials.          (Boso Affidavit, Exhibit E;
Johnson Depo., Exhibit J.) Indeed, Boso states in his affidavit that Zielinski was under
his supervision and that she “did not have the same difficulty as Ms. Johnson in
completing her IEPs and progress notes.” (Boso Affidavit, ¶ 5.) As one example,
Buchanan noted in his May 19, 2015 email recommending termination that plaintiff “had
failed to complete her progress notes prior to leaving for intersession” but that “[t]he rest
of the Special Education staff did complete their progress notes prior to leaving for
intersession.”   (Buchanan Affidavit, ¶ 5.)     While plaintiff argues that she eventually
completed all the IEPs she was responsible for, even if that were true, defendant has
presented uncontroverted evidence that they were not timely completed, and that she
did not timely complete her progress reports.
       {¶17} Plaintiff, who acknowledged being experienced in completing IEPs and
getting six weeks of general training from defendant when she was hired, also asserts
that defendant did not provide her specialized training on how to complete IEPs until
June 2015. (Johnson Depo., p. 115). But, there is no evidence that defendant ever
gave Zielinski any specialized training on IEPs, let alone that it did so sooner than when
plaintiff received such training. In sum, even though plaintiff cited some reasons that
she felt prevented her from completing her IEPs and progress notes on time, and even
though plaintiff contends that Zielinski was partly responsible for one particular IEP that
Buchanan criticized, there is uncontroverted evidence before the court to demonstrate
that plaintiff did fail on multiple occasions to timely and properly complete IEPs and
progress notes, and there is a paucity of evidence of comparable conduct on the part of
Zielinski.
       {¶18} Regarding attendance issues, Buchanan states in his affidavit that his May
19, 2015 email recommending termination was also based in part upon tardiness and
failure to follow proper timekeeping and call-off procedures. (Buchanan Affidavit, ¶ 5.)
In the email, an authenticated copy of which is attached to Buchanan’s affidavit, he
Case No. 2017-00054JD                        -8-                                  DECISION
identified multiple infractions of the timekeeping rules as well as what he considered
four instances of tardiness within a two-week span from late April to early May 2015.
Plaintiff also acknowledged in her deposition that Buchanan criticized her on another
occasion for being tardy three times in one week. (Johnson Depo., p. 85.) Even though
plaintiff contends that she was “technically” not tardy on some of the dates specified in
Buchanan’s email because she was entitled to a “6 minute grace period,” she has not
disputed that she failed to clock in by her 7:00 a.m. report time on several occasions,
nor has she presented evidence to controvert all the evidence of timekeeping and call-
off infractions. More importantly, plaintiff is not aware of any occasions when Zielinski
was tardy (Johnson Depo., p. 85) and she has not offered evidence that Zielinski failed
to follow proper timekeeping and call-off procedures.
       {¶19} Regarding unprofessional conduct serving as a basis for the termination,
Boso described in his affidavit an incident that took place on March 3, 2015, which he
documented in a statement attached to the affidavit. (Boso Affidavit, ¶ 4.) As Boso
related, plaintiff felt that a student had threatened her and she refused to report to her
classroom that day even after he told her that she must do so, and, as a result, Boso
had to get another teacher to substitute for plaintiff. In her deposition, plaintiff explained
that she did not feel comfortable being in the classroom then, but Boso ordered her to
go in. (Johnson Depo., pp. 82-83.) Plaintiff admitted that she was told she was being
insubordinate and disobeying a direct order. (Id., p. 82.) When asked about an account
of this incident that Buchanan included in his May 19, 2015 email recommending
termination, wherein Buchanan wrote that plaintiff subsequently left CJCF for the day
and called off the next two days, plaintiff explained that she became ill. (Id., p. 176.)
Buchanan also wrote in the email that when plaintiff returned to work, a meeting was
held with school management who informed her that she could not refuse a direct order
and that she needed to be on time to class.
       {¶20} Regarding another alleged incident of unprofessional conduct, John Terry,
the Operations Manager for the school at CJCF, states in an affidavit that on June 17,
Case No. 2017-00054JD                      -9-                                DECISION
2015, he observed plaintiff engage in “inappropriate behavior” that led him to send
Frierson the following message in an email later that same day:

          a. I just wanted you to know that I just had the most interesting (for a
             lack of better words) encounter with Ms. Johnson in the school.
             She was upset with youth [redacted] and wanted him out of the
             classroom.      I responded with several youth Specialists to
             accommodate. Prior to entering the classroom and then again
             when we were using verbal strategy she was screaming at the top
             of her lungs, “Get him out, I want you to take him out of here now,
             he threatened to spit on me, get him out”. She repeated this over
             and over. Then she left the classroom and was in the hallway
             screaming. As we were talking to the youth a minute or two to calm
             him, she came back into the class and ordered us to get him out.
             She started screaming at the youth again and I had to ask her to
             leave as she continued to shout at him. I stepped into the hallway
             with her and she started screaming how I had all of those big guys
             in the classroom and she couldn’t teach. I told her that we have
             procedures and a policy that we were following to ensure we
             handle these matters correctly. She was totally out of control and I
             had to talk to her for a few minutes to bring her down so we could
             deal with the youth. At one point I had to tell her that she was
             totally out of control. I have not experienced a situation quite like
             this with a teacher ever. She has exhibited similar behavior before,
             but today she was really inappropriate. Ms. Frierson, I wish
             everyone the best at trying to do their jobs in this environment and I
             try to be objective. But, from one professional to another, I don’t
             believe this teacher is fit for longevity here. Review the tape from
             this incident occurring between 10:15 and 10:30 in classroom #12
             and in the east hallway and you can see that I did stay poised and
             tried to calm the teacher down.

      {¶21} Although plaintiff denied screaming and having to be calmed down, she did
acknowledge that there was an incident with a youth whom she told Terry to remove
from her classroom, she acknowledged that she may have raised her voice and also put
a hand on Terry, and she was unable to recall whether she argued with the student.
(Johnson Depo., pp. 196-199, 213.)       Frierson, who avers in her affidavit that she
reviewed video footage of the incident, stated that the incident was a serious matter,
that plaintiff’s behavior was “unacceptable and it represented a security risk to the
Case No. 2017-00054JD                      -10-                                DECISION
School. She set a bad example for her students.” (Frierson Affidavit, ¶ 7.) Frierson
states that she summoned plaintiff to meet with her later that day, but plaintiff would not
do so without a union representative. (Id., ¶ 6.) Frierson states that she rescheduled
for a time when the union representative could be present, but that plaintiff refused to
attend the rescheduled meeting. (Id.) For her part, plaintiff stated that she did decline
to talk to Frierson without a union representative and she does not recall ever meeting
with Frierson again. (Johnson Depo., p. 215.) Following this incident, which took place
on Friday, June 19, 2015, plaintiff went on medical leave effective Tuesday, June 23,
2015, and remained on leave through the date of her termination, according to a letter
that she testified that she sent to defendant’s director after her termination. (Johnson
Depo, p. 47.)
       {¶22} Plaintiff’s version of the March 3 and June 17, 2015 incidents differs in part
from the versions recounted by defendant’s employees.              Nevertheless, plaintiff
acknowledged that in one instance she would not go into her classroom and her
supervisor considered her insubordinate as a result, and that in the other instance she
had an encounter with a youth with whom she may have argued, she may have raised
her voice, and she put a hand on Terry and told him to remove the youth from her
classroom. Defendant has presented evidence demonstrating that CJCF officials were
troubled by what they viewed as insubordinate and unprofessional conduct on the part
of plaintiff in these incidents. Even though plaintiff disputes the egregiousness of her
conduct, her burden is to show that Zielinski engaged in conduct of comparable
seriousness. To that end, plaintiff has identified no evidence whatsoever that Zielinski
ever engaged in conduct that is in any way comparable even to plaintiff’s own version of
the March 3 and June 17, 2015 incidents, and plaintiff admitted that she has no
knowledge whether Zielinski was ever accused of disobeying a direct order or being
insubordinate. (Id., p. 83.)
       {¶23} Considering the evidence presented about the alleged insubordinate and
unprofessional conduct, the failure to timely complete IEPs and progress reports, and
Case No. 2017-00054JD                       -11-                                 DECISION
the tardiness and timekeeping issues, reasonable minds can only conclude that plaintiff
cannot show that she and Zielinski engaged in conduct of comparable seriousness.
Therefore, Zielinski cannot be considered to have been similarly situated to plaintiff in all
respects. Because plaintiff cannot show that a similarly situated, non-protected person
was treated more favorably, she cannot establish a prima facie case of discrimination.
       {¶24} Additionally, even if plaintiff had been able to establish a prima facie case,
defendant has articulated legitimate, non-discriminatory reasons as to why plaintiff’s
employment was terminated. Plaintiff was a probationary employee whose employment
could be terminated for any lawful reason, and the evidence described above
demonstrates that the termination was based upon “attendance issues, unprofessional
conduct and deficiencies in her performance. Specific performance issues included
poor quality IEPs and incomplete progress notes.” (Frierson Affidavit, ¶ 9.)
       {¶25} In order to show that an employer’s proffered reason is pretextual, “a
plaintiff must submit evidence that an employer’s proffered reason (1) had no basis in
fact, (2) did not actually motivate the employer’s challenged conduct, or (3) was
insufficient to warrant the challenged conduct.” Hall v. Ohio State Univ. College of
Humanities, 10th Dist. Franklin No. 11AP-1068, 2012-Ohio-5036, ¶ 27. “Regardless of
which option is chosen, the plaintiff must produce sufficient evidence from which the
trier of fact could reasonably reject the employer’s explanation and infer that the
employer intentionally discriminated against him.” Knepper v. Ohio State Univ., 10th
Dist. Franklin No. 10AP-1155, 2011-Ohio-6054, ¶ 12. “A plaintiff cannot establish that a
proffered reason is pretext for discrimination unless the plaintiff shows ‘both that the
reason was false, and that discrimination was the real reason.’” (Emphasis sic.) Boyd
v. Ohio Dept. of Mental Health, 10th Dist. Franklin No. 10AP-906, 2011-Ohio-3596, ¶
28, quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).
       {¶26} While plaintiff argues that defendant’s proffered reasons for the termination
are based on incorrect or incomplete information, there can be no dispute that those
reasons have some basis in fact inasmuch as uncontroverted evidence shows that she
Case No. 2017-00054JD                        -12-                                  DECISION
did have some tardiness and timekeeping issues, she did fail to timely complete IEPs
and progress reports, and she was involved in incidents that prison officials viewed as
examples of unprofessional and insubordinate behavior. Furthermore, a simple denial
of the conduct that defendant proffered as its reasoning is insufficient to avoid summary
judgment, and instead plaintiff “must present evidence creating a material dispute as to
the employer’s honest belief in its proffered legitimate, nondiscriminatory reason.”
Wigglesworth v. Mettler Toledo Internatl., Inc., 10th Dist. Franklin No. 09AP-411, 2010-
Ohio-1019, ¶ 19.
       {¶27} Plaintiff argues that discriminatory intent on the part of defendant is evident
in that she was “treated differently than her white co-workers” and was set “up to fail
from day one because of her race.” (Response, p. 9.) Specifically, plaintiff argues that
Buchanan failed to introduce her to her co-workers when she started working there, like
he did for other new employees.         While Buchanan disputed this in his deposition
(Buchanan Depo., p. 28), in any event the characterization of this as an example of
racial animus is based upon conjecture, particularly considering that it could just as
easily be attributed to Buchanan forgetting to introduce her. Plaintiff also argues that
Buchanan only criticized her, not Zielinski, for one particular IEP that Buchanan found to
be deficient even though Zielinski had completed half of it, but plaintiff testified that
Buchanan did not know about Zielinski’s involvement. (Johnson Depo., p. 81.) Plaintiff
also points to the fact that defendant provided her with training on how to complete IEPs
not long before her termination, rather than earlier in her tenure, but plaintiff identifies no
evidence whatsoever to suggest that other teachers normally received such training,
much less that they did so sooner than when plaintiff received it. Plaintiff also argues
that Buchanan would not let her move her desk closer to the door as a safety measure,
but even if this were true, the dispositive issue is whether defendant was motivated by
discriminatory animus. Morrissette v. DFS Servs., LLC, 10th Dist. Franklin No. 12AP-
611, 2013-Ohio-4336, ¶ 38. Plaintiff testified that she felt Buchanan was racist, but she
admitted that she never heard him make any racist remark (Johnson Depo., p. 141),
Case No. 2017-00054JD                      -13-                               DECISION
and based upon the evidence that plaintiff cites it cannot be concluded that attributing a
discriminatory motive to Buchanan is based upon anything more than conjecture, which
is insufficient. Ressler v. Attorney Gen., 10th Dist. Franklin No. 14AP-519, 2015-Ohio-
777, ¶ 19. And, it is significant that the termination was preceded by criticism from
several officials, not Buchanan alone, and there is evidence that multiple officials
including Boso and Terry, and ultimately the superintendent and director, concluded at
different times that plaintiff should no longer be employed at CJCF. In short, plaintiff
has failed to meet the ultimate burden of presenting evidence that discrimination on the
basis of race “was the real reason for the employer’s action.” Pla v. Cleveland State
Univ., 10th Dist. Franklin No. 16AP-366, 2016-Ohio-8165, ¶ 22.
      {¶28} Construing the evidence most strongly in favor of plaintiff, no reasonable
finder of fact can conclude that the reasons proffered by defendant for the termination of
plaintiff’s employment were merely pretext.
      {¶29} Based upon the foregoing, defendant is entitled to judgment on Count One
of the complaint.
COUNT TWO: RETALIATION
      {¶30} R.C. 4112.02 provides, in part:
      {¶31} “It shall be an unlawful discriminatory practice:
      {¶32} “* * *
      {¶33} “(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.”
      {¶34} “Absent direct evidence of retaliatory intent, Ohio courts analyze retaliation
claims using the evidentiary framework established by the United States Supreme Court
in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L. Ed. 2d
668 * * *.” Veal v. Upreach LLC, 10th Dist. Franklin No. 11AP-192, 2011-Ohio-5406,
Case No. 2017-00054JD                       -14-                                 DECISION
¶ 16. “Under that framework, a plaintiff bears the initial burden of establishing a prima
facie case of retaliation. Specifically, the plaintiff must establish that (1) she 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.” Id.
       {¶35} Plaintiff claims that she engaged in a protected activity by speaking with an
investigator about a “sexual harassment” claim against Buchanan, and that defendant
retaliated against her by subsequently terminating her employment. In her deposition,
plaintiff testified that one day in June 2015 she was asked to answer some questions
from David Haynes, whom plaintiff understood to be an investigator looking into an
allegation that Buchanan had said a job opening at CJCF was likely to be filled by a
particular teacher who already worked there because that teacher was “homosexual.”
(Johnson Depo, pp. 230-232.) Plaintiff stated that when Haynes interviewed her, she
told him that she heard secondhand from Zielinski that Buchanan made such a remark.
(Id., p. 229.)
       {¶36} In an affidavit submitted by defendant, David Haynes avers that on May 28,
2015, he served as defendant’s senior investigator and was given an assignment to
investigate an allegation made by Zielinski “that she heard Patrick Buchanan refer to
another teacher as homosexual.”        (Haynes Affidavit, ¶ 1.)     Haynes avers that on
June 15, 2015, he interviewed plaintiff in the course of his investigation and that plaintiff
told him the following: “I reported to Ms. Frierson that there was a job opening and that
Ms. Zielinski and myself were interested in the job. Mr. Buchanan said to Ms. Zielinski
that the new teacher would get the job because she was a homosexual. Ms. Zielinski or
myself might be interested in this job and that it would not be fair without first
considering us.” (Haynes Affidavit, ¶ 2.) According to Haynes, when he asked how
plaintiff learned this information, she said she heard it from Zielinski. (Id.) Buchanan, in
his deposition, testified that the basis of the investigation was that Zielinski made an
Case No. 2017-00054JD                      -15-                                DECISION
allegation against him, which he disputes, to the effect that he made a “homophobic”
statement. (Buchanan Depo., p. 46.)
       {¶37} In its motion, defendant argues that plaintiff did not engage in a protected
activity for purposes of a retaliation claim under R.C. 4112.02(I) and thus cannot meet
the first element of her prima facie case.        In response, plaintiff argues that she
“participated in a protected activity by testifying against Buchanan in a sexual
harassment investigation.” (Response, p. 8.)
       {¶38} While R.C. 4112.02(A) prohibits harassment in the employment context
based upon a person’s “sex,” that term as it appears in the statute does not encompass
sexual orientation. Burns v. Ohio State Univ. College of Veterinary Med., 10th Dist.
Franklin No. 13AP-633, 2014-Ohio-1190, ¶ 10; see also Vickers v. Fairfield Med. Ctr.,
453 F.3d 757, 762 (6th Cir.2006) (under Title VII, “sexual orientation is not a prohibited
basis for discriminatory acts”).
       {¶39} As previously stated, R.C. 4112.02(I) prohibits an employer from
discriminating 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.” Here,
plaintiff participated in an interview in an investigation into whether Buchanan said
another teacher was likely to be offered a job because of that teacher’s sexual
orientation. Plaintiff identifies no authority for concluding that such conduct is unlawful
under R.C. Chapter 4112. Indeed, the only reasonable conclusion that can be drawn is
that the alleged conduct which plaintiff spoke about to Haynes was not an unlawful
discriminatory practice under R.C. Chapter 4112 and cannot form the basis of a
retaliation claim under R.C. 4112.02(I). See Grimsley v. Am. Showa, Inc., S.D.Ohio No.
3:17-cv-24, 2017 U.S. Dist. LEXIS 133350 (Aug. 21, 2017), citing Gilbert v. Country
Music Assn., Inc., 432 Fed.Appx. 516, 520 (6th Cir.2011) (former employee allegedly
terminated in retaliation for complaining of harassment and discrimination based on
Case No. 2017-00054JD                     -16-                                DECISION
sexual orientation failed to state a claim under R.C. 4112.02(I) and Title VII because the
conduct he opposed was not an unlawful employment practice); Currie v. Cleveland
Metro. School Dist., N.D.Ohio No. 1:15 CV 262, 2015 U.S. Dist. LEXIS 87311 (July 6,
2015) (“claims of harassment on the basis of sexual orientation cannot give rise to a
Title VII retaliation claim”).
         {¶40} Moreover, plaintiff has failed to adduce evidence of a causal connection
between her participation in the interview with Haynes and her termination. As set forth
above in the analysis of plaintiff’s discrimination claim, defendant has articulated
legitimate, non-discriminatory reasons for terminating plaintiff’s employment. In arguing
that her termination was causally related to the interview, plaintiff emphasizes that only
eight days after the interview, Buchanan sent an email recommending that she be
terminated, and it was not long after that when defendant’s director made the decision
to do so. But Frierson’s affidavit testimony demonstrates that the director made the
decision upon the recommendation of the CJCF superintendent. And, while the timing
of an employee’s termination can contribute to an inference of retaliation, temporal
proximity alone is not sufficient to demonstrate a causal connection, and this is
especially true where there are intervening performance concerns. Sells v. Holiday Mgt.
Ltd., 10th Dist. Franklin No. 11AP-205, 2011-Ohio-5974, ¶ 35.         Subsequent to her
interview with Haynes, plaintiff was involved in the June 17, 2015 incident that led Terry
to independently opine that plaintiff was unfit for employment at CJCF, representing at
least the third different employee to have offered such an opinion in writing up to that
point.    Defendant has presented evidence demonstrating that CJCF officials found
plaintiff’s conduct in that incident to be unprofessional and incompatible with the safe
and orderly operation of the facility.   Furthermore, plaintiff testified that on another
occasion after Haynes interviewed her, another one of her IEPs was found to be
deficient and Buchanan and Boso required her to correct it. (Johnson Depo., p. 74.)
Plaintiff has not presented evidence from which it could be inferred that her termination
was causally connected to her interview with Haynes, as opposed to her conduct in the
Case No. 2017-00054JD                       -17-                                 DECISION
subsequent June 17, 2015 incident and the subsequent IEP that was incorrectly
prepared, on top of the prior issues discussed earlier.
       {¶41} Construing the evidence most strongly in favor of plaintiff, no reasonable
finder of fact can conclude that plaintiff has established a prima facie case of retaliation.
And, as with the claim of race discrimination, even if she had been able to do so, it
cannot be concluded that the legitimate, non-discriminatory reasons proffered by
defendant for the termination of plaintiff’s employment were merely pretext.
Accordingly, defendant is entitled to judgment on Count Two of the complaint.



CONCLUSION
       {¶42} Based upon the foregoing, the court concludes that there are no genuine
issues of material fact and that defendant is entitled to judgment as a matter of law.
Accordingly, defendant’s motion for summary judgment shall be granted and judgment
shall be rendered in favor of defendant.




                                           PATRICK M. MCGRATH
                                           Judge
[Cite as Johnson v. Dept. of Youth Servs., 2018-Ohio-1499.]




AUDRA JOHNSON                                          Case No. 2017-00054JD

       Plaintiff                                       Judge Patrick M. McGrath
                                                       Magistrate Robert Van Schoyck
       v.
                                                       JUDGMENT ENTRY
OHIO DEPARTMENT OF YOUTH
SERVICES

       Defendant

        {¶43} A non-oral hearing was conducted in this case upon defendant’s motion for
summary judgment.               For the reasons set forth in the decision filed concurrently
herewith, the court concludes that there are no genuine issues of material fact and that
defendant is entitled to judgment as a matter of law. As a result, defendant’s motion for
summary judgment is GRANTED and judgment is hereby rendered in favor of
defendant. All previously scheduled events are VACATED. Court costs are assessed
against plaintiff. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.



                                                    PATRICK M. MCGRATH
                                                    Judge


cc:

Eric A Walker                                           Erica Ann Probst
Howard H Harcha IV                                      88 West Mound Street
150 East Gay Street 18th Floor                          Columbus OH 43215-5084
Columbus OH 43215-3130
Filed February 13, 2018
Sent to S.C. Reporter 4/19/18
