[Cite as Hardgrow v. Dept. of Rehab. & Corr., 2011-Ohio-5956.]




                                                       Court of Claims of Ohio
                                                                                The Ohio Judicial Center
                                                                        65 South Front Street, Third Floor
                                                                                   Columbus, OH 43215
                                                                         614.387.9800 or 1.800.824.8263
                                                                                    www.cco.state.oh.us



SIDNEY HARDGROW, SR.,

       Plaintiff,                                                Case No. 2010-07512

       v.

DEPARTMENT OF REHABILITATION                                     Judge Joseph T. Clark
AND CORRECTION,

       Defendant.                                                DECISION


        {¶ 1} On August 8, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On August 15 and 24, 2011, plaintiff filed responses. The
motion is now before the court for a non-oral hearing.
        {¶ 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. (1977), 50 Ohio St.2d 317.
       {¶ 4} According to the complaint, plaintiff was employed by defendant as a
corrections captain at the Richland Correctional Institution (RiCI). Plaintiff alleges that
he suffered from hypertension and diabetes, and that he also suffered a stroke in
January 2007. Plaintiff, who is African American, claims that on January 31, 2008,
defendant “constructively terminated” his employment on the basis of his disability and
race in violation of R.C. 4112.02.        Based upon the same allegations, plaintiff also
asserts claims for breach of implied contract, promissory estoppel, and intentional
infliction of emotional distress.
       {¶ 5} In support of its motion, defendant submitted the affidavit of Charles
Scruggs, who has served as the Labor Relations Officer at RiCI since 2001. Scruggs
avers, in part:
       {¶ 6} “2. I have personal knowledge of the facts contained in this Affidavit.
Further, I am familiar with the underlying facts of this lawsuit, and I have personally
reviewed [plaintiff’s] personnel and disciplinary files.
       {¶ 7} “3. [Plaintiff] began working as a correction officer in 1986.        He was
promoted to correction sergeant in 1998, to correction lieutenant in 2000 and to
correctional captain in 2003.
       {¶ 8} “4. [Defendant] was aware that [plaintiff] had suffered a stroke in January
of 2007. However, upon his return in April of 2007, [plaintiff] submitted two documents
from his physician indicating that he was able to return to his normal job duties without
any restrictions.
       {¶ 9} “5. On August 23, 2007, [plaintiff] and correctional officer Larry Kenney, Jr.
were involved in a confrontation in the Front Entry building in which [plaintiff] pushed Mr.
Kenney and Mr. Kenney landed in a chair.             At that time, [plaintiff] served as the
correctional captain on third shift at RiCI and was in a supervisory role to Mr. Kenney.
       {¶ 10} “6. During the internal investigation into the August 23, 2007 incident
involving [plaintiff] and Mr. Kenney, incident and medical exam reports were completed,
photographs were taken, and investigatory interviews were conducted.
       {¶ 11} “7.Based on the allegations that he had physically assaulted a subordinate
officer, [plaintiff] could face suspension, demotion or removal if just cause was found
following the pre-disciplinary hearing.
       {¶ 12} “8. Following the internal investigation, a pre-disciplinary hearing was held
on October 27, 2007 and it was determined that there was just cause for discipline. As
a result, the warden demoted [plaintiff] to the position of correctional lieutenant, effective
November 29, 2007.
       {¶ 13} “9. Major Mapp and I met [plaintiff] to inform him of his demotion to
correctional lieutenant. At the end of that meeting, [plaintiff] stated, ‘I cannot believe
this, I am not going to work for any of you mother fuckers.’
       {¶ 14} “10. [Plaintiff] was given a date to return to work in his new position as
correctional lieutenant, but he did not return to work. He did not face any additional
discipline for the August 23, 2007 incident and was not being investigated for any other
incidents.
       {¶ 15} “11. At no time during the investigation or at the time that he was informed
of his demotion did [plaintiff] complain of age, race or disability discrimination.
       {¶ 16} “12. On January 31, 2008, [plaintiff] submitted his resignation and he was
notified that [defendant] had accepted his resignation on February 1, 2008.
       {¶ 17} “13. [Plaintiff’s] investigation was conducted according to internal policy
and discrimination did not play any role in the investigation or in the results of the
discipline. [Defendant] did not discriminate against [plaintiff] because of his age, race,
disability or any other protected characteristic. The decision to demote him was based
solely on the fair and impartial internal investigation into the August 23, 2007 incident
involving Mr. Kenney.     [Plaintiff’s] demotion was an acceptable discipline given the
allegations filed against him and the findings of the hearing officer after investigating
those allegations.”
       {¶ 18} The memoranda that plaintiff filed in response to defendant’s motion are
not accompanied by any affidavit or other evidence permitted under Civ.R. 56. Civ.R.
56(E) states, in part, as follows:
       {¶ 19} “* * * When a motion for summary judgment is made and supported as
provided in this rule, an adverse party may not rest upon the mere allegations or denials
of the party’s pleadings, but the party’s response, by affidavit or as otherwise provided
in this rule, must set forth specific facts showing that there is a genuine issue for trial. If
the party does not so respond, summary judgment, if appropriate, shall be entered
against the party.”
       {¶ 20} With regard to plaintiff’s claims of discrimination, R.C. 4112.02 provides:
       {¶ 21} “It shall be an unlawful discriminatory practice: (A) 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
discriminate against that person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly or indirectly related to employment.”
       {¶ 22} “[I]n the absence of direct evidence of discrimination, a plaintiff may raise
an inference of discriminatory intent by establishing that: (1) he or she was a member
of a protected class; (2) he or she suffered an adverse employment action; (3) he or she
was qualified for the position held; and (4) comparable, nonprotected persons were
treated more favorably.” Clark v. City of Dublin, Franklin App. No. 01AP-458, 2002-
Ohio-1440. “If a plaintiff establishes a prima facie case, the burden of production shifts
to the employer to articulate some legitimate, nondiscriminatory reason for its discharge
of the plaintiff. Should the employer carry this burden, the plaintiff must then prove that
the reasons the employer offered were not its true reasons, but merely a pretext for
discrimination.” Wigglesworth v. Mettler Toledo Intl., Inc., Franklin App. No. 09AP-411,
2010-Ohio-1019, ¶16. (Internal citations omitted.)
       {¶ 23} Concerning plaintiff’s allegation that he suffered an adverse employment
action in the form of a constructive discharge, “[c]ourts generally apply an objective test
in determining when an employee was constructively discharged, viz., whether the
employer’s actions made working conditions so intolerable that a reasonable person
under the circumstances would have felt compelled to resign. * * * In applying this test,
courts seek to determine whether the cumulative effect of the employer's actions would
make a reasonable person believe that termination was imminent.” Mauzy v. Kelly
Servs., Inc., 75 Ohio St.3d 578, 588-589, 1996-Ohio-265. (Internal citations omitted.)
       {¶ 24} The only reasonable conclusion to be drawn from the uncontested affidavit
testimony of Scruggs is that plaintiff was not constructively discharged, but instead
voluntarily resigned his employment.       Further, to the extent that plaintiff’s demotion
constituted an adverse employment action, it is only reasonable to conclude that
defendant had legitimate, non-discriminatory reasons for taking such action.
Accordingly, plaintiff’s claims of discrimination must fail as a matter of law.
       {¶ 25} For his breach of implied contract claim, plaintiff alleges that “defendant’s
actions against plaintiff were in contradiction of defendant’s written policies prohibiting
discriminating in the workplace.”     (Complaint, ¶16.)     “Ohio law acknowledges three
types of contracts: express, implied in fact, and implied in law. * * * Unlike express
contracts, implied contracts are not created or evidenced by explicit agreement of the
parties; rather, they are inferred by law as a matter of reason and justice. * * * An
implied-in-fact contract arises from the conduct of the parties, or circumstances
surrounding the transaction, that make it clear that the parties have entered into a
contractual relationship despite the absence of any formal agreement.” Fouty v. Ohio
Dept. of Youth Servs., 167 Ohio App. 3d 508, 2006-Ohio-2957, ¶56. (Internal citations
omitted.)
       {¶ 26} Plaintiff has failed to present any evidence to demonstrate that the parties
mutually assented to something other than an employment-at-will relationship.
Moreover, Scruggs states that plaintiff’s demotion was carried out in accordance with
defendant’s anti-discrimination policies.      Accordingly, reasonable minds can only
conclude that defendant is entitled to judgment as a matter of law on plaintiff’s claim for
breach of implied contract.
       {¶ 27} For his promissory estoppel claim, plaintiff alleges that defendant
promised him “that he would be treated fairly an[d] not subject to discrimination,” and
that he “detrimentally relied upon defendant’s promise by not seeking/accepting other
employment.” (Complaint, ¶20-21.) “To establish a claim for promissory estoppel, an
employee must prove:          (1) a clear and unambiguous promise, (2) made by the
employer, (3) which the employer should reasonably and forseeably expect to induce
reliance by the employee, and (4) upon which the employee must have actually relied
and suffered injury as a result.” Miller v. Lindsay-Green, Inc., Franklin App. No. 04AP-
848, 2005-Ohio-6366, ¶35. Inasmuch as plaintiff failed to submit evidence of a clear
and unambiguous promise made by defendant, and given that Scruggs’ uncontested
affidavit testimony establishes that plaintiff’s demotion was not based upon plaintiff’s
race, disability, or other impermissible factor, reasonable minds can only conclude that
plaintiff’s claim for promissory estoppel is without merit.
       {¶ 28} Lastly, in order to prevail on a claim for intentional infliction of emotional
distress, plaintiff must show that: “(1) defendant intended to cause emotional distress,
or knew or should have known that actions taken would result in serious emotional
distress; (2) defendant’s conduct was extreme and outrageous; (3) defendant’s actions
proximately caused plaintiff’s psychic injury; and (4) the mental anguish plaintiff suffered
was serious.” Hanly v. Riverside Methodist Hosp. (1991), 78 Ohio App.3d 73, 82.
       {¶ 29} In Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 374, quoting
Restatement of the Law 2d, Torts (1965) 73, Section 46, Comment d, the court
explained that liability in such cases “‘has been found only where the conduct has been
so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the actor, and lead him
to exclaim, “Outrageous!”’”
       {¶ 30} Based on Scruggs’ affidavit, the only reasonable conclusion to be drawn is
that defendant’s conduct was neither extreme nor outrageous.
       {¶ 31} For the foregoing reasons, the court finds 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.
                                               Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us



SIDNEY HARDGROW, SR.,

       Plaintiff,                                       Case No. 2010-07512

       v.

DEPARTMENT OF REHABILITATION                            Judge Joseph T. Clark
AND CORRECTION,

       Defendant.                                       JUDGMENT ENTRY


        {¶ 32} 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, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. 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.



                                          _____________________________________
                                          JOSEPH T. CLARK
                                          Judge

cc:


Amy S. Brown                                  Sidney Hardgrow, Sr.
Assistant Attorney General                    109 Washington Avenue
150 East Gay Street, 18th Floor               Mansfield, Ohio 44903
Columbus, Ohio 43215-3130


Filed September 27, 2011
To S.C. reporter November 18, 2011
