[Cite as Adams v. S. Ohio Corr. Facility, 2012-Ohio-6319.]



                                                         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



DANIEL S. ADAMS

        Plaintiff

        v.

SOUTHERN OHIO CORRECTIONAL FACILITY

        Defendant

Case No. 2010-05242

Judge Clark B. Weaver Sr.
Magistrate Holly True Shaver

DECISION OF THE MAGISTRATE

         {¶ 1} Plaintiff brought this action alleging employment discrimination, retaliation,
civil conspiracy, intentional infliction of emotional distress, and defamation.1 The issues
of liability and damages were bifurcated and the case proceeded to trial on the issue of
liability.
         {¶ 2} Plaintiff began his employment with defendant, Southern Ohio Correctional
Facility (SOCF), in March 1989 as a Corrections Officer (CO). Plaintiff received either
average or above-average employment evaluations consistently through January 2002.
Plaintiff’s claims stem from an incident that occurred on March 31, 2002. On that date,
two of his co-workers, COs Brian Cox and Kevin Adkins, assaulted plaintiff’s stepson,
Ryan Kilgour, a CO employed by Correctional Reception Center in Columbus. The
assault occurred at Kilgour’s residence during a party. Cox and Adkins arrived at the
party uninvited, asked for Kilgour, and then Cox assaulted Kilgour while Adkins
prevented others from coming to Kilgour’s aid. According to Cox, the assault was in
Case No. 2010-05242                               -2-                                      DECISION

retaliation for Kilgour having assaulted Cox’s stepson, Justin Harrison, the previous
week. At the time of the assault, Cox was the union president at SOCF, and he was
married to Carla Cox, a Correctional Program Coordinator who was also a union
steward at SOCF.
        {¶ 3} After learning of the assault on Kilgour, plaintiff drove to the house of his
supervisor, Major Mark Wynn, to report what had happened. Although the incident
occurred outside of the institution, plaintiff believed that he was required to report it as a
violation of institutional conduct, inasmuch as Cox and Adkins were both COs. Wynn
advised plaintiff to write an incident report during his next shift. (Plaintiff’s Exhibit M.)
When plaintiff reported for work the next day, he was advised that until further notice, he
was to work in the command center, which was not his assigned post. A few days later,
plaintiff attended a meeting with Warden James Haviland, Deputy Warden David
Newsome, and investigators. At the meeting, plaintiff was advised to let prosecutors
handle the criminal case against Cox and Adkins.
        {¶ 4} On April 29, 2002, plaintiff was working in A-Building. According to plaintiff,
he was processing employees in and out of the institution for an awards ceremony
when Cox entered A-Building with Newsome and Haviland.                                Cox made an
unprofessional and intimidating comment to plaintiff and brushed plaintiff’s shoulder as
he walked past him. After the ceremony, Cox remained in A-Building and stared at
plaintiff for approximately 20 minutes. Plaintiff filed an incident report the following day.
(Plaintiff’s Exhibit P.) Plaintiff was interviewed with regard to his allegations about the
incident.
        {¶ 5} On May 7, 2002, at the request of Newsome, Wynn gave both plaintiff and
Cox a written direct order not to discuss the assault at work inasmuch as the entire
incident was under investigation as of that date.               Both Cox and plaintiff were also

        1
        On September 2, 2010, the court dismissed plaintiff’s claims of retaliation in violation of R.C.
4113.52 (whistleblower statute), constitutional claims, and any claims premised upon alleged violations of
Case No. 2010-05242                              -3-                              DECISION

advised that any report of either of them having any such discussions would result in
immediate disciplinary action. (Plaintiff’s Exhibit L.)
        {¶ 6} On that same date, plaintiff wrote an incident report expressing his
dissatisfaction with the manner in which Newsome was handling the incident.
Specifically, plaintiff questioned Newsome’s decision to change his post assignment to
the A-Building metal detector, which forced him to interact with Cox and Adkins, and
plaintiff disagreed with Newsome’s refusal to reinstate him to the Temporary Worker
Level (TWL) position of sergeant. According to plaintiff, Newsome advised him to tell
his wife to stop “calling all over the state causing trouble.” (Plaintiff’s Exhibit Q.) Later
the same day, plaintiff wrote a second incident report to document his concerns that
Cox was going to remain the union president during the investigation. Plaintiff also
complained that various workplace policies were not being followed and that he was not
being treated fairly. (Plaintiff’s Exhibit R.)
        {¶ 7} At Haviland’s request, Carolyne Crockett-Harris, an employee of Pickaway
Correctional Institution, was selected to conduct an investigation regarding the
divisiveness that Cox and plaintiff were creating among staff in the institution. Over a
five-day period in May 2002, Crockett-Harris interviewed multiple SOCF employees,
including plaintiff, Cox, and Carla Cox.               Crockett-Harris testified that when she
interviewed plaintiff, she found him to be agitated, angry, and frustrated. She noted that
plaintiff refused to stop talking about the assault at work despite a direct order from his
superiors because he needed to “vent.” Crockett-Harris recommended that a mediation
be held with Cox, plaintiff, and a neutral party.
        {¶ 8} On May 28, 2002, plaintiff met with Newsome and Haviland. When they
requested that plaintiff meet with Cox to see if they could move past the assault issue,
plaintiff refused and Haviland used profanity toward plaintiff, in the presence of other
employees.


a collective bargaining agreement.
Case No. 2010-05242                          -4-                                DECISION

       {¶ 9} In both June and September 2002, plaintiff was not selected for promotion.
In July 2002, plaintiff was “written up” for a use of force incident; on October 10, 2002,
plaintiff was disciplined for talking to coworkers.
       {¶ 10} On October 20, 2002, Carla Cox filed a complaint about plaintiff’s behavior
toward her. Carla Cox testified that after the assault, plaintiff stated to coworkers at the
control center: “They’re going down. Seven to 15 years,” referring to Cox and Adkins.
On October 21, 2002, plaintiff was reassigned to work in a surveillance tower and was
ordered to stay away from Carla Cox. On October 24, 2002, plaintiff filed an incident
report wherein he complained that Haviland had used profanity toward him in the May
28, 2002 meeting and that since the meeting, plaintiff had been harassed in that he was
“written up” several times, not selected for promotion, and reassigned to the tower
based upon false allegations by Carla Cox.
       {¶ 11} On November 14, 2002, Brian Cox was placed on administrative leave for
an unrelated incident and did not return to the institution.
       {¶ 12} On December 9, 2002, plaintiff was involved in a car accident and did not
return to work until February 2003. Upon his return, Carla Cox filed another complaint
about him and he was assigned to the tower again. On February 27, 2003, a committee
concluded that Carla Cox’s allegations regarding plaintiff’s behavior toward her were of
a personal nature and did not constitute an Equal Employment Opportunity (EEO)
violation. (Plaintiff’s Exhibit Y.)
       {¶ 13} On April 17, 2003, plaintiff wrote an incident report wherein he requested
to be returned to his bid job. (Plaintiff’s Exhibit U.) Plaintiff also filed a grievance with
the union regarding management’s decision to remove him from his assigned post and
reassign him to the tower. (Defendant’s Exhibit 1.)
       {¶ 14} On January 2, 2004, Lieutenant Charlie Rogers conducted an employment
evaluation of plaintiff and rated him as “above target” for all categories. Before that
evaluation was approved, it was returned to Rogers at Newsome’s request and all of the
Case No. 2010-05242                        -5-                                 DECISION

“above targets” were changed to “meets targets.” Newsome testified that he directed
that the evaluation be changed because plaintiff had received two or three corrective
counselings after the assault. According to Newsome, plaintiff was a “different guy”
after the assault: his attitude was poor, and he was “consumed” by the incident.
       {¶ 15} On February 25, 2004, plaintiff filed another incident report wherein he
requested to be returned to his bid job. (Plaintiff’s Exhibit W.) Plaintiff left defendant’s
employment on disability retirement in 2004.
       {¶ 16} As a preliminary matter, the court finds that plaintiff’s claims regarding his
placement in the tower, his failure to be returned to his bid job, and his failure to be
reinstated to his TWL position all arise from alleged violations of a collective bargaining
agreement. As the court noted in its September 2, 2010 entry of partial dismissal, this
court lacks jurisdiction over any claims premised upon violations of a collective
bargaining agreement. Moore v. Youngstown State University, 63 Ohio App.3d 238
(1989). Therefore, the court shall not further address those claims.


I. EMPLOYMENT DISCRIMINATION
       {¶ 17} R.C. 4112.02 provides, in pertinent part, that:     “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.”
       {¶ 18} In Ohio, “federal case law interpreting Title VII of the Civil Rights Act of
1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases
involving alleged violations of R.C. Chapter 4112.”       Plumbers & Steamfitters Joint
Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981).
Absent direct evidence of discriminatory intent, Ohio courts resolve claims of disparate
treatment using the evidentiary framework established by the Supreme Court of the
Case No. 2010-05242                       -6-                                DECISION

United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Canady
v. Rekau & Rekau, Inc., 10th Dist. No. 09AP-32, 2009-Ohio-4974, ¶ 22. “Under the
McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima
facie case of discrimination. In order to do so, the plaintiff must present evidence that:
(1) he is a member of a protected class, (2) he suffered an adverse employment action,
(3) he was qualified for the position in question, and (4) either he was replaced by
someone outside the protected class or a non-protected similarly situated person was
treated better.” Id. at ¶ 23.
       {¶ 19} Plaintiff testified that he was not selected for promotion on two occasions
and that he was treated less favorably than Cox was because of Cox’s status as union
president.   However, plaintiff has not established that he was a member of any
protected class as set forth in R.C. 4112.02. Accordingly, the court finds that plaintiff
has failed to state a prima facie claim of disparate treatment employment discrimination.
       {¶ 20} Plaintiff testified that he was harassed during his employment at SOCF
and that he endured a hostile work environment. A hostile work environment is defined
as one in which “discriminatory intimidation, ridicule, and insult,” permeate the
workplace. The working conditions must be such that they are “sufficiently severe or
pervasive” to create “an abusive working environment.” (Emphasis added.) Harris v.
Forklift Systems Inc., 510 U.S. 17, 21 (1993), quoting Meritor Savings Bank FSB v.
Vinson, 477 U.S. 57, 67 (1986).       As suggested by the definition, a hostile work
environment claim is necessarily premised upon some form of prohibited discrimination.
Although plaintiff testified that he felt that he was subjected to a hostile work
environment, he has failed to prove that he endured intimidation, ridicule, or insult that
was based upon any protected trait; i.e., his race, sex, age, etc. Accordingly, the court
finds that plaintiff has failed to state a prima facie claim of harassment based upon a
hostile work environment.
Case No. 2010-05242                        -7-                                 DECISION




II. RETALIATION
       {¶ 21} To establish a prima facie case of unlawful retaliation under Ohio law, the
employee must establish: 1) that he engaged in a protected activity; 2) that he was the
subject of an adverse employment action; and 3) that a causal link exists between the
protected activity and the adverse action. Mowery v. Columbus, 10th Dist. No. 05AP-
266, 2006-Ohio-1153, ¶ 21.         For purposes of a retaliation claim, opposition to
“demeaning and harassing conduct,” without complaining of illegal discrimination or
taking a stand against such discrimination, does not constitute a protected activity.
Murray v. Sears, N.D.Ohio No. 1:09 CV 702, 2010 U.S. Dist. LEXIS 34256 (April 7,
2010); see also Fox v. Eagle Distributing Co., 510 F.3d 587, 591-592 (6th Cir.2007).
       {¶ 22} Plaintiff filed numerous incident reports complaining of his dissatisfaction
with the decisions of management and his feelings that he was being treated unfairly;
however, plaintiff never complained that his treatment was based upon any unlawful
employment practice under either Title VII or R.C. 4112.02. “When a grievance or other
activity does not allege discrimination, it does not constitute either protected activity or
protected opposition.” Motley v. Ohio Civil Rights Comm., 10th Dist. No. 07AP-923,
2008-Ohio-2306, 2008 Ohio App. LEXIS 1958, ¶ 15, quoting Jones v. United Parcel
Service, Inc., 411 F. Supp.2d 1236, 1258-1259 (2006). Therefore, the court finds that
plaintiff did not engage in a protected activity that gives rise to a claim for retaliation.
Accordingly, the court finds that plaintiff has failed to state a prima facie claim of
retaliation.


III. CIVIL CONSPIRACY
       {¶ 23} “‘Civil conspiracy’ has been defined as ‘a malicious combination of two or
more persons to injure another in person or property, in a way not competent for one
alone, resulting in actual damages.’” Kenty v. Transamerica Premium Ins. Co., 72 Ohio
Case No. 2010-05242                          -8-                                 DECISION

St.3d 415, 419, 1995-Ohio-61, quoting LeFort v. Century 21-Maitland Realty Co., 32
Ohio St.3d 121, 126 (1987).        “An underlying unlawful act is required before a civil
conspiracy claim can succeed.” Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475,
1998-Ohio-294.
       {¶ 24} With regard to his claim of civil conspiracy, plaintiff testified that he felt as
though he could not trust anyone at work after the assault, and that Haviland,
Newsome, Al Lewis (an investigator), Adkins, and Cox all conspired against him.
       {¶ 25} The court finds that plaintiff has failed to demonstrate any unlawful act
sufficient to support a civil conspiracy claim.      Although plaintiff disagreed with how
certain employment decisions were made, his dissatisfaction does not support a claim
for civil conspiracy. Accordingly, the court finds that plaintiff has failed to state a prima
facie claim of civil conspiracy.


IV. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
       {¶ 26} To state a cause of action 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., 78 Ohio App.3d 73, 82 (1991).
       {¶ 27} In Yeager v. Local Union 20, 6 Ohio St.3d 369, 374 (1983), quoting
Restatement of the Law 2d, Torts 73, Section 46, Comment d (1965), 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
Case No. 2010-05242                          -9-                            DECISION

member of the community would arouse his resentment against the actor, and lead him
to exclaim, ‘Outrageous!’”
       {¶ 28} The weight of the evidence does not establish that any actions by Cox,
Carla Cox, or other employees of defendant were “utterly intolerable in a civilized
community.” Accordingly, the court finds that plaintiff has failed to state a prima facie
claim of intentional infliction of emotional distress.


V. DEFAMATION
       {¶ 29} “Defamation is defined as the unprivileged publication of a false and
defamatory matter about another * * * which tends to cause injury to a person’s
reputation or exposes him to public hatred, contempt, ridicule, shame or disgrace * * *.”
McCartney v. Oblates of St. Francis deSales, 80 Ohio App.3d 345, 353 (6th Dist.1992).
“As suggested by the definition, a publication of statements, even where they may be
false and defamatory, does not rise to the level of actionable defamation unless the
publication is also unprivileged. Thus, the threshold issue in such cases is whether the
statements at issue were privileged or unprivileged publications.” Sullivan v. Ohio Dept.
of Rehab. & Corr., Ct. of Cl. No. 2003-02161, 2005-Ohio-2122, ¶ 8.
       {¶ 30} Privileged statements are those that are “made in good faith on any
subject matter in which the person communicating has an interest, or in reference to
which he has a right or duty, if made to a person having a corresponding interest or duty
on a privileged occasion and in a manner and under circumstances fairly warranted by
the occasion and duty, right or interest. The essential elements thereof are good faith,
an interest to be upheld, a statement limited in its scope to this purpose, a proper
occasion, and publication in a proper manner and to proper parties only.” Hahn v.
Kotten, 43 Ohio St.2d 237, 244 (1975), quoting 50 American Jurisprudence 2d, Libel
and Slander, Section 195 at 698.
       {¶ 31} Furthermore, a qualified privilege can be defeated only by clear and
convincing evidence of actual malice. Bartlett v. Daniel Drake Mem. Hosp., 75 Ohio
Case No. 2010-05242                         - 10 -                              DECISION

App.3d 334, 340 (1st Dist.1991). “Actual malice” is “acting with knowledge that the
statements are false or acting with reckless disregard as to their truth or falsity.” Jacobs
v. Frank, 60 Ohio St.3d. 111, 116 (1991).
       {¶ 32} Plaintiff testified that Carla Cox made baseless allegations against him in
October 2002 and February 2003. Plaintiff’s Exhibit I is the charge of discrimination that
Carla Cox made with regard to plaintiff, wherein she complains of verbal intimidation
and of being followed by plaintiff.     The court finds that Carla Cox’s testimony was
credible regarding statements that plaintiff allegedly made to her after the assault.
Indeed, the greater weight of the evidence shows that plaintiff continued to talk about
the assault after he was directed not to by his superiors. Based upon the testimony and
evidence presented at trial, the court finds that Carla Cox’s allegations are subject to a
qualified privilege. Moreover, plaintiff has failed to prove that Carla Cox’s statements
were made with actual malice. Accordingly, the court finds that plaintiff has failed to
state a prima facie claim of defamation.
       {¶ 33} In sum, the court finds that plaintiff has failed to prove any of his claims by
a preponderance of the evidence, and judgment is recommended in favor of defendant.2
       {¶ 34} A party may file written objections to the magistrate’s decision within 14
days of the filing of the decision, whether or not the court has adopted the decision
during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files
objections, any other party may also file objections not later than ten days after the first
objections are filed. A party shall not assign as error on appeal the court’s adoption of
any factual finding or legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely
and specifically objects to that factual finding or legal conclusion within 14 days of the
filing of the decision, as required by Civ.R. 53(D)(3)(b).
Case No. 2010-05242                              - 11 -                                   DECISION




                                                _____________________________________
                                                HOLLY TRUE SHAVER
                                                Magistrate

cc:


Amy S. Brown                                        Casey L. Chapman
Eric A. Walker                                      Assistant Attorney General
Assistant Attorneys General                         Environmental Enforcement Section
150 East Gay Street, 18th Floor                     30 East Broad Street, 25th Floor
Columbus, Ohio 43215-3130                           Columbus, Ohio 43215

James H. Banks
P.O. Box 40
Dublin, Ohio 43017

002
Filed July 9, 2012
To S.C. Reporter January 16, 2013




         2
        At the close of plaintiff’s case, defendant moved for a dismissal pursuant to Civ.R. 41(B)(2), on
the ground that upon the facts and the law, plaintiff had shown no right to relief. The court took the
motion under advisement. In light of the foregoing decision, defendant’s motion is DENIED as moot.
