[Cite as Murphy v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-1848.]

                                                       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




JUANITA MURPHY

       Plaintiff

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant
       Case No. 2009-04777

Judge Clark B. Weaver Sr.
Magistrate Robert Van Schoyck

MAGISTRATE DECISION




        {¶ 1} Plaintiff brought this action alleging that defendant, the Ohio Department
of Rehabilitation and Correction (DRC), terminated her employment on the basis of her
sex in violation of R.C. 4112.02(A).1               The issues of liability and damages were
bifurcated and the case proceeded to trial on the issue of liability.
        {¶ 2} Plaintiff testified that she had worked for more than 13 years at DRC, and
that for the last 11 years she worked as a correctional program coordinator at the
Mansfield Correctional Institution (ManCI). Plaintiff’s employment was terminated by
the Warden of ManCI, Stuart Hudson, on March 12, 2008, following an internal
investigation into telephone calls that plaintiff had made to Marilyn Christopher, who
was both plaintiff’s former domestic partner and a ManCI co-worker, as well as calls she
made to Christopher’s credit card issuer, VISA.                 Plaintiff does not dispute that the
telephone calls were made but instead argues that she was “investigated, disciplined


1
 On July 8, 2010, the court granted summary judgment in favor of defendant as to plaintiff’s claim for
invasion of privacy.
Case No. 2009-04777                        -2-                MAGISTRATE DECISION

and removed from her position as a Correctional Program Coordinator in a disparate
fashion compared to males who engaged in the same, substantially similar, or more
egregious conduct * * *.” (Complaint, ¶15.)
      {¶ 3} R.C. 4112.02 states: “It shall be 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.”
      {¶ 4} Disparate treatment discrimination has been described as “the most easily
understood type of discrimination.     The employer simply treats some people less
favorably than others because of their race, color, religion, sex, or national origin.”
Teamsters v. United States (1977), 431 U.S. 324, 335-336, fn. 15.          In a disparate
treatment case, liability depends upon whether the protected trait actually motivated the
employer’s decision.    Hazen Paper Co. v. Biggins (1993), 507 U.S. 604, 610. For
example, the “employer may have relied upon a formal, facially discriminatory policy
that required adverse treatment” of protected employees, or the “employer may have
been motivated by the protected trait on an ad hoc, informal basis.” Id. “Whatever the
employer’s decision making process, a disparate treatment claim cannot succeed
unless the employee’s protected trait actually played a role in that process and had a
determinative influence on the outcome.” Id.
      {¶ 5} Plaintiff did not present any direct evidence of sex discrimination in this
case. Absent direct evidence of discriminatory intent, Ohio courts resolve claims of
disparate treatment sex discrimination using the evidentiary framework established by
the Supreme Court of the United States in McDonnell Douglas Corp. v. Green (1973),
411 U.S. 792. See Canady v. Rekau & Rekau, Inc., Franklin App. No. 09AP-32, 2009-
Ohio-4974, ¶22. “Under the McDonnell Douglas evidentiary framework, a plaintiff bears
Case No. 2009-04777                        -3-                 MAGISTRATE DECISION

the initial burden of establishing a prima facie case of discrimination. In order to do so,
plaintiff must present evidence that: (1) [she] is a member of a protected class, (2) [she]
suffered an adverse employment action, (3) [she] was qualified for the position in
question and (4) either [she] was replaced by someone outside the protected class or a
non-protected similarly situated person was treated better.”        Id. at ¶23.    (Internal
citations omitted.)
       {¶ 6} Once a plaintiff establishes a prima facie case, a presumption of sex
discrimination is created.    The burden of production then shifts to the defendant-
employer to overcome the presumption of discrimination by articulating a legitimate,
nondiscriminatory reason for its actions. Allen v. Totes/Isotoner Corp., 123 Ohio St.3d
216, 2009-Ohio-4231, ¶4. “If the employer articulates a nondiscriminatory reason, then
the employer has successfully rebutted the presumption of discrimination that was
raised by the prima facie case.” Frick v. Potash Corp. of Saskatchewan, Inc., Allen App.
No. 1-09-59, 2010-Ohio-4292, ¶20, citing Weiper v. W.A. Hill & Assoc. (1995), 104 Ohio
App.3d 250, 263.
       {¶ 7} As a general rule, this court will not substitute its judgment for that of the
employer and will not second-guess the business judgment of employers regarding
personnel decisions. See, e.g., Watson v. Kent State Univ. (Aug. 8, 1994), Ct. of Cl.
No. 1991-06627; Dodson v. Wright State Univ. (1997), 91 Ohio Misc.2d 57; Washington
v. Cent. State Univ. (1998), 92 Ohio Misc.2d 26. Whether a personnel decision was
correct is not the issue before this court. The court is asked to determine whether sex
was a factor in the decision to terminate plaintiff’s employment.
       {¶ 8} There is no question that, as a female, plaintiff is a member of a protected
class. It is also undisputed that plaintiff was qualified for her position as a correctional
program coordinator and that the termination of her employment constituted an adverse
employment action.     With respect to the fourth element of the McDonnell Douglas
framework, plaintiff contends that Doug Danner, a “food service coordinator” at ManCI,
was a similarly situated employee whom defendant treated more favorably.
Case No. 2009-04777                           -4-                  MAGISTRATE DECISION

       {¶ 9} “It is the plaintiff’s burden to establish that a similarly situated person
outside the protected class was treated more favorably than [she].” Noble v. Brinker
Internatl., Inc. (C.A.6, 2004), 391 F.3d 715, 728-729, citing Mitchell v. Toledo Hosp.
(C.A.6, 1992), 964 F.2d 577, 583. Ohio law is clear that it is not enough for a plaintiff to
show that comparable non-protected persons engaged in conduct of equal seriousness
and received more lenient treatment.               Rather, “plaintiff must show that the
‘comparables’ are similarly-situated in all respects. Stotts v. Memphis Fire Dept. (C.A.6,
1988), 858 F.2d 289. Thus, to be deemed “similarly situated,” the individuals with whom
plaintiff seeks to compare his/her treatment must have dealt with the same supervisor,
have been subject to the same standards and have 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.” Mitchell, supra, at 583. (Internal
citations omitted.)
       {¶ 10} Hudson, who was the Warden of ManCI from 2005 to 2008 and is now
defendant’s Bureau Chief of Medical Services, testified that Danner was responsible for
supervising inmates in food preparation. On his way home from work on April 18, 2007,
Danner stopped at a gas station and used a payphone to call the wife of a co-worker
and tell her that her husband had been demoted for e-mailing pornography at work.
When Masi interviewed Danner about the incident, Danner initially denied making the
call, but later admitted to such conduct. (Plaintiff’s Exhibit 5.)
       {¶ 11} Hudson testified that as a result of Danner’s inappropriate telephone call,
his lying to Masi, his subsequent admission to Masi, and taking into account a prior
episode in which Danner had been disciplined for an unrelated matter, Hudson elected
to suspend Danner without pay for five days for violating Rule 12 (“Making obscene
gestures or statements, or false or abusive, or inappropriate statements”) and Rule 24
(“Interfering with, failing to cooperate in, or lying in an official investigation or inquiry”) of
defendant’s Standards of Employee Conduct.                 (Plaintiff’s Exhibit 7.)     Danner’s
Case No. 2009-04777                         -5-                MAGISTRATE DECISION

suspension was later reduced to two days through the collective bargaining grievance
process.
       {¶ 12} In comparison, as a correctional program coordinator in ManCI’s recovery
services office, plaintiff administered drug testing and provided drug and alcohol
counseling to inmates.     Plaintiff worked with members of the ManCI administration,
including Masi, whom she assisted during investigations that involved substance abuse.
Masi testified that trust was vital to his working relationship with plaintiff because he
entrusted her with confidential matters, relied upon drug testing results that she
provided him during investigations, and delegated other sensitive tasks to her during
investigations such as delivering cigarettes to inmates. Masi stated that he and plaintiff
had a positive working relationship prior to the events at issue in this case.
       {¶ 13} In explaining the background behind her misconduct, plaintiff stated that
she and Christopher had been involved in a romantic relationship for approximately five
years, ending in January 2007, and that they lived together during much of that time.
Plaintiff stated that she had little contact with Christopher after they separated, but that
recent events had caused her to become upset with Christopher. In particular, plaintiff
testified that Christopher’s new partner, Deb Smith, had recently been interviewed at
ManCI for a position in a supervisory role, and that she believed Christopher gave Smith
the interview questions beforehand. Plaintiff further stated that she had loaned money
to Christopher for home repairs, with the understanding that the loan would be repaid
upon the sale of the house. According to plaintiff, she learned on January 31, 2008,
that Christopher had sold the house months earlier without repaying the loan.
       {¶ 14} Further, plaintiff stated that she received a disguised telephone call early
in the morning on February 1, 2008, before she left for work, during which she was told
to decide “what was more important,” her son, or the money that she had loaned to
Christopher. Plaintiff stated that she believed the call came from Christopher. Plaintiff
testified that when she went to work later that morning, she brought with her a calling
card issued by SpoofCard, which is a commercial service that enables one to make
Case No. 2009-04777                          -6-                 MAGISTRATE DECISION

telephone calls using a disguised voice and a disguised telephone number; plaintiff
explained that she had bought the card some time earlier to play a practical joke on a
relative.   On February 1, 2008, from 10:21 a.m. to 12:51 p.m., plaintiff used the
SpoofCard from her office telephone during work hours to make a series of telephone
calls to Christopher.
       {¶ 15} In order to make these calls, plaintiff telephoned SpoofCard, entered an
identification number, selected a disguised voice, entered Christopher’s telephone
number and extension, and entered the telephone number that would appear on the
recipient’s “caller ID.” Plaintiff admitted that the calls were threatening and intimidating
in nature, and she explained that she made the calls to Christopher in order to “pay her
back.” According to the February 6, 2009 arbitration decision which upheld plaintiff’s
termination, recordings of the calls included such statements as: “Your turn is coming”;
“I will get a hold of you”; “She will rot in hell and so will you”; “I have so much anger built
up over the shit that has happened to me I would love to take it out on her, I’d love to
take it out on her”; “You thinking I’m fucking pissed, you’ve never seen me fucking
pissed”; and, “Don’t make me have to come down there.” (Plaintiff’s Exhibit 6.) Plaintiff
admitted at trial that she made these statements, but that she believed some of them
were made during another round of calls that she made to Christopher after leaving
ManCI that day.
       {¶ 16} In addition to making disguised calls to Christopher, plaintiff also used her
office telephone to make a disguised call to VISA in which she pretended to be
Christopher and reported to a customer service representative that several of
Christopher’s credit cards had been stolen and needed to be canceled.                  Plaintiff
provided the VISA representative with Christopher’s Social Security number as proof of
identification.   Only after the representative began to contact a bank to initiate the
process of canceling the credit cards did plaintiff terminate the call. The call lasted six
minutes and 41 seconds.
Case No. 2009-04777                            -7-               MAGISTRATE DECISION

       {¶ 17} On Monday, February 4, 2008, Christopher filed an incident report
accusing plaintiff of making the telephone calls.         Hudson reviewed the report and
assigned it to Masi for investigation.        During the course of the investigation, Masi
obtained documentation from SpoofCard which confirmed that the calls originated from
plaintiff’s office telephone.
       {¶ 18} On February 13, 2008, Masi interviewed plaintiff as part of his
investigation. According to a transcript of the interview, Masi asked plaintiff multiple
times whether she made the telephone calls, and plaintiff consistently denied doing so.
Plaintiff acknowledges that she lied to Masi, but she contends that she did so, in part,
because she was on prescription pain medication due to breaking her leg two days
earlier, she felt intimidated by the presence of an Ohio State Highway Patrolman during
the interview, and because she was stressed by both a recent fire at her home and the
recent deaths of her parents. However, Masi stated that he does not believe anyone
else was present for the interview, that plaintiff did not apprise him of any medication
she was taking, and that plaintiff’s demeanor did not seem unusual.
       {¶ 19} Later that same day, as Masi was leaving ManCI, plaintiff met him at the
door and spoke with him again. Plaintiff testified that she requested another interview
and offered to take a polygraph test if Christopher would also do so. Masi testified that
he believed plaintiff offered to take a polygraph test to prove her innocence rather than
admit any wrongdoing.           Masi further testified that plaintiff never requested another
interview, and that if plaintiff had ever indicated that she wished to change her story, he
would have conducted another interview with her. Masi and Hudson stated that it was
only during the collective bargaining “pre-disciplinary conference” on February 29, 2008,
after the investigation was completed, that plaintiff finally admitted making the telephone
calls. (Defendant’s Exhibit B.)
       {¶ 20} Hudson terminated plaintiff’s employment on March 12, 2008, for violating
Rule 18 (“Threatening, intimidating or coercing another employee or member of the
general public”) and Rule 24 (“Interfering with, failing to cooperate in, or lying in an
Case No. 2009-04777                       -8-                 MAGISTRATE DECISION

official investigation or inquiry”) of the Standards of Employee Conduct.       (Plaintiff’s
Exhibit 7.)
       {¶ 21} Upon review of all of the testimony and the exhibits submitted, the court
finds that plaintiff has not established that a similarly-situated employee who was not a
member of plaintiff’s protected class was treated more favorably after engaging in like
misconduct. Plaintiff and Danner worked in separate departments and served much
different roles at ManCI, with Danner supervising inmates in food preparation in the
ManCI kitchen, and plaintiff working with ManCI administrators to monitor inmates’ drug
and alcohol use, providing substance abuse counseling to inmates, and assisting in
confidential investigations.
       {¶ 22} Danner’s and plaintiff’s misconduct was also dissimilar. Danner made one
inappropriate call to the wife of a co-worker while outside the workplace and after
working hours. The gist of Danner’s telephone call was that the co-worker had been
demoted for e-mailing pornography at work.          In contrast, plaintiff used her office
telephone during work hours to make numerous calls over a two and a half hour span in
which she threatened a co-worker and initiated the process of canceling the co-worker’s
credit cards, and she took the added step of disguising both her voice and telephone
number through the rather elaborate SpoofCard process.
       {¶ 23} Although Danner and plaintiff both lied to Masi during their respective
interviews, Danner ultimately admitted his wrongdoing during his interview, whereas
plaintiff did not admit her wrongdoing until after the investigation had concluded, during
her pre-disciplinary conference. While Danner and plaintiff were both disciplined under
Rule 24 for lying to Masi, the other rules under which they were disciplined differed
inasmuch as their root misconduct was dissimilar.
       {¶ 24} Even if the court were to assume that Danner was a similarly-situated
employee, defendant may avoid liability by articulating a legitimate non-discriminatory
Case No. 2009-04777                         -9-                 MAGISTRATE DECISION

reason for its actions. Tex. Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248,
253.
       {¶ 25} Hudson testified that in coming to a decision regarding plaintiff’s discipline,
he considered Masi’s investigation report, which included plaintiff’s interview transcript
and transcripts of telephone calls that plaintiff made to Christopher; the pre-disciplinary
conference hearing officer’s report; a “just cause worksheet”; plaintiff’s lack of prior
discipline; and plaintiff’s years of service. Hudson testified that he had never dealt with
a case similar to plaintiff’s and that he considered the nature and extent of her conduct
to be quite egregious.
       {¶ 26} Hudson testified that plaintiff’s disguised telephone calls evidenced
substantial planning and calculation, and that they were threatening and intimidating
due to both their content and the disguised manner in which they were accomplished.
Hudson stated that, in comparison, Danner’s lone telephone call appeared to have been
made in “the heat of the moment,” it was less calculated than plaintiff’s, and it was
nowhere near as intimidating as the calls made by plaintiff. Hudson further stated that
in disciplinary matters, he generally considered conduct that occurred during work hours
on the ManCI premises to demand more severe discipline than conduct that occurred
outside the institution, and in this regard, Danner made one call on his own time outside
the institution, while plaintiff made numerous calls from a ManCI telephone during work
hours over a two and a half hour span.
       {¶ 27} Hudson was additionally troubled that plaintiff repeatedly lied during
Masi’s interview, particularly in light of the fact that Masi had a close working
relationship with plaintiff and Masi needed to be able to trust her when she assisted him
with investigations. Indeed, Masi testified that he and plaintiff had worked together
during investigations for several years, and that trust was essential to their working
relationship because the information obtained through drug and alcohol testing, which
plaintiff administered, needed to be confidential and reliable. Masi stated that he was
troubled by plaintiff lying to him in the interview and that the episode lessened her
Case No. 2009-04777                        - 10 -              MAGISTRATE DECISION

credibility.   In contrast, Danner and Masi never worked together and there is no
evidence that Danner’s job duties involved confidential or sensitive matters.
        {¶ 28} Upon review, the court finds that defendant articulated legitimate
nondiscriminatory reasons for terminating plaintiff’s employment.
        {¶ 29} Having so found, the court must next determine whether plaintiff
demonstrated by a preponderance of the evidence that the reasons offered by
defendant were not its true reasons, but were a pretext for discrimination. McDonnell
Douglas, supra, at 804. In order to meet this burden, plaintiff must prove: “‘(1) that the
proffered reason had no basis in fact, (2) that the proffered reason did not actually
motivate the discharge, or (3) that the proffered reason was insufficient to motivate the
discharge.’” Owens v. Boulevard Motel Corp. (Nov. 5, 1998), Franklin App.
No.97APE12-1728, quoting Frantz Beechmont Pet Hosp. (1996), 117 Ohio App.3d 351,
359.
        {¶ 30} Plaintiff asserts that her misconduct was not sufficient to justify her
termination, and she further asserts that differences in the way that Masi interviewed
her and Danner demonstrate that defendant’s proffered reasons for discharging her are
pretext. In particular, plaintiff contends that Masi stopped and then restarted the tape
recorder during Danner’s interview, but he refused to grant her a second interview.
Plaintiff also argues that Masi induced Danner to admit his wrongdoing by disclosing
that he had obtained incriminating evidence, but that Masi did not disclose any such
evidence during her interview.
        {¶ 31} In determining how to discipline plaintiff and Danner, Hudson considered
several factors, including the transcripts of their interviews with Masi. To the extent that
the alleged differences in the way that plaintiff and Danner were interviewed are evident
in the transcripts, Hudson was able to consider such circumstances and assess them
accordingly. Further, upon weighing plaintiff’s testimony that she requested a second
Case No. 2009-04777                       - 11 -              MAGISTRATE DECISION

interview against Masi’s testimony that plaintiff never made such a request, the court
finds Masi’s testimony to be more credible.
       {¶ 32} After reviewing the transcripts and other factors germane to each case,
the court finds that Hudson exercised his business judgment and made personnel
decisions as he saw fit. Hudson testified as to how he reached his decisions, and the
court finds that his reasoning was genuine, credible, and supported by the evidence
presented at trial.   Moreover, the court finds that Hudson’s reasons for terminating
plaintiff’s employment were sufficient.
       {¶ 33} For the foregoing reasons, the court finds that plaintiff has failed to prove
her claim of discrimination by a preponderance of the evidence. Accordingly, judgment
is recommended in favor of defendant.
       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).



                                          _____________________________________
                                          ROBERT VAN SCHOYCK
                                          Magistrate

cc:
Case No. 2009-04777               - 12 -             MAGISTRATE DECISION


Daniel H. Klos                       Eric A. Walker
4591 Indianola Avenue                Assistant Attorney General
Columbus, Ohio 43214                 150 East Gay Street, 18th Floor
                                     Columbus, Ohio 43215-3130

GWP/RCV/cmd
Filed March 22, 2011
To S.C. reporter April 12, 2011
