[Cite as Stanchina v. Wright State Univ., 2012-Ohio-1249.]




                                                        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



LINDA STANCHINA

       Plaintiff

       v.

WRIGHT STATE UNIVERSITY

       Defendant

Case No. 2010-11358

Judge Alan C. Travis

DECISION

        {¶1} On October 31, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B).           On November 18, 2011, plaintiff filed a response.          On
November 22, 2011, defendant filed a motion for leave to file a reply, which is
GRANTED instanter. The motion for summary judgment 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
Case No. 2010-11358                         -2-                                  DECISION

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} It is undisputed that plaintiff was employed by defendant’s Boonshoft School
of Medicine from 1990 to 2009, most recently serving as an executive assistant to the
chairman of the department of emergency medicine, Dr. Glenn Hamilton. According to
the complaint, plaintiff developed a plan in August 2008 with Dr. Hamilton whereby she
would retire on May 31, 2009, and she would utilize sick leave or medical leave prior to
that time as needed for her spinal arthritis and degenerative disk disease. Plaintiff
alleges that defendant improperly denied her subsequent requests for leave, however,
and that she was consequently left with no choice but to retire earlier than she intended,
on March 31, 2009. Plaintiff further alleges that defendant failed to notify her about an
early retirement program, known as the “Employee Severance Plan” (ESP), that was
announced in June 2009, but was retroactively available to employees who retired on or
after April 1, 2009, meaning that plaintiff retired one day too soon to participate.
       {¶5} Plaintiff brings this claim for violation of the Family and Medical Leave Act of
1993 (FMLA), discrimination pursuant to R.C. 4112.02 on the basis of age and
disability, fraud, breach of fiduciary duty, intentional infliction of emotional distress, and
civil conspiracy.


FMLA
       {¶6} “The FMLA entitles qualifying employees to up to twelve weeks of unpaid
leave each year if, among other things, an employee has a ‘serious health condition that
makes the employee unable to perform the functions of the position of such employee.’”
Walton v. Ford Motor Co. (C.A.6, 2005), 424 F.3d 481, 485, quoting 29 U.S.C.
2612(a)(1)(D). FMLA leave may be taken by an eligible employee with a serious health
Case No. 2010-11358                        -3-                               DECISION

condition “intermittently or on a reduced leave schedule when medically necessary.” 29
U.S.C. 2612(b)(1).
      {¶7} In order for an employee to establish that an employer interfered with her
rights under the FMLA, the employee must show that: “(1) [she] was an eligible
employee; (2) the defendant was an employer as defined under the FMLA; (3) the
employee was entitled to leave under the FMLA; (4) the employee gave the employer
notice of [her] intention to take leave; and (5) the employer denied the employee FMLA
benefits to which [she] was entitled.” Walton, supra.
      {¶8} The central issue with respect to plaintiff’s FMLA claim is whether she was
denied benefits to which she was entitled. In support of its motion, defendant submitted
the affidavit of its Leave and Disability Coordinator, Jamie Henne. Henne avers that
employees of defendant who sought FMLA leave were required to submit both a
request form and a supporting medical certification from the employee’s health care
provider. See 29 C.F.R. 825.305, et seq.
      {¶9} There is no dispute that plaintiff submitted the request form to Dr. Hamilton
on November 17, 2008, requesting FMLA leave from January 1, 2009, to May 31, 2009.
In opposition to defendant’s motion, plaintiff submitted her own affidavit wherein she
states that John Bale, the Associate Dean for Fiscal Affairs in the Boonshoft School of
Medicine, spoke with her by telephone on November 26, 2008, and “denied” the latter
two months of her request, stating that she could only take FMLA leave until March 31,
2009. The court notes that the period from January 1 to March 31 was approximately
12 weeks, and that the request form submitted by plaintiff sought leave over a period
exceeding the 12 weeks permitted by the FMLA, without specifying that intermittent
leave was sought.
      {¶10} In any event, plaintiff’s alleged conversation with Bale occurred prior to the
submission of her of medical certification, which defendant received on December 1,
2008. Attached to Henne’s affidavit is an authenticated copy of the medical certification,
Case No. 2010-11358                        -4-                                 DECISION

wherein plaintiff’s physician certified that plaintiff needed four to six months of
intermittent leave for medical treatment. Henne states in her affidavit that on December
13, 2008, defendant issued a written decision granting plaintiff intermittent leave as
specified by plaintiff’s physician, running from the date that the physician signed the
certification, November 25, 2008, until May 31, 2009, a period of just over six months.
       {¶11} The affidavit testimony and documents submitted by defendant show that
defendant granted the full amount of FMLA leave that plaintiff’s physician certified she
was entitled to, and plaintiff has not presented any evidence to demonstrate otherwise.
Accordingly, reasonable minds can only conclude that plaintiff was not denied FMLA
benefits to which she was entitled.


FRAUD
       {¶12} “Fraud is defined as: (1) a representation or, where there is a duty to
disclose, concealment of a fact; (2) which is material to the transaction at hand; (3)
made falsely, with knowledge of its falsity, or with such utter disregard and recklessness
as to whether it is true or false that knowledge may be inferred; (4) with the intent of
misleading another into relying upon it; (5) justifiable reliance upon the representation or
concealment; and (6) a resulting injury proximately caused by the reliance.” Martin v.
Ohio State Univ. Found. (2000), 139 Ohio App.3d 89, 98.
       {¶13} Plaintiff alleges that defendant fraudulently misrepresented both her sick
leave benefits and the availability of any early retirement programs. With respect to sick
leave, plaintiff avers in her affidavit that Bale and other employees of defendant
informed her that she could not use her “accrued sick leave time to extend [her] tenure,”
and also informed her that, upon retirement, she could only receive payment for a
portion of her accrued sick leave.
       {¶14} In support of its motion, defendant submitted Bale’s affidavit, wherein he
states, in part: “I advised [plaintiff], among other things, that upon her retirement, she
Case No. 2010-11358                         -5-                               DECISION

would be paid for her remaining vacation and sick leave balances up to a certain
maximum number of hours for each. At that time, [plaintiff] had a significant number of
sick leave hours. I explained that in accordance with University policy that she would be
paid for 25% of her sick leave up to a maximum of 30 days (240 hours). [Plaintiff] was
unhappy about this and inquired about the possibility of using sick leave to extend her
retirement date. I explained to her that University policy does not allow an individual to
extend retirement by using his/her remaining leave balances.”
       {¶15} While it is clear that plaintiff believes defendant should have allowed her to
extend her retirement date by utilizing sick leave and that defendant should have
compensated her for the balance of her accrued sick leave upon retirement, she has
presented no evidence to dispute Bale’s testimony that defendant’s policies do not
permit such practices. Accordingly, the only reasonable conclusion to be drawn is that
Bale did not misrepresent defendant’s policies concerning sick leave benefits.
       {¶16} With respect to early retirement programs, plaintiff states in her affidavit
that she asked employees of defendant, including Bale, about the availability of any
early retirement or similar programs and was told several times that none were known.
There is no dispute that in June 2009, more than two months after plaintiff retired,
defendant’s board of trustees approved and announced the ESP. Bale states in his
affidavit, however, that he and other employees in the school of medicine had no
knowledge of the ESP until about a week before it was announced by the board of
trustees. Based upon Bale’s testimony, and the lack of any evidence to suggest that
the ESP was even contemplated by defendant at the time when plaintiff was making her
retirement plans, reasonable minds can only conclude that defendant’s employees
made no misrepresentations to plaintiff regarding the ESP. Accordingly, defendant is
entitled to judgment as a matter of law on plaintiff’s claim of fraud.
Case No. 2010-11358                        -6-                                DECISION

       {¶17} Moreover, inasmuch as plaintiff’s claim for breach of fiduciary duty is
similarly premised upon the theory that defendant owed her a duty to disclose the ESP
and failed to do so, defendant is also entitled to judgment on that claim.


UNLAWFUL DISCRIMINATION
       {¶18} Plaintiff alleges that defendant discriminated against her on the basis of
age and disability by forcing her to retire earlier than she wanted to, and by subjecting
her to a hostile work environment.
       {¶19} R.C. 4112.02 provides, in part: “It shall be an unlawful discriminatory
practice: (A) For any employer, because of the disability, [or] age * * * 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.”
       {¶20} Absent evidence of discriminatory intent, Ohio courts resolve claims of
employment 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.
In order to establish a prima facie case of indirect employment discrimination based
upon either age or disability, plaintiff must demonstrate, inter alia, that defendant
subjected her to an adverse employment action.          See Burzynski v. Cohen (C.A.6,
2001), 264 F.3d 611, 622; Peters v. Ohio Dept. of Natural Resources, Franklin App. No.
03AP-350, 2003-Ohio-5895, ¶22.          To that end, plaintiff alleges that defendant
constructively terminated her employment two months earlier than she intended, in that
the disposition of her FMLA and sick leave benefits forced her to retire on March 31,
2009, rather than May 31, 2009.
       {¶21} “The test for determining whether an employee was constructively
discharged is whether the employer’s actions made working conditions so intolerable
Case No. 2010-11358                         -7-                                DECISION

that a reasonable person under the circumstances would have felt compelled to resign.”
Mauzy v. Kelly Services, Inc., 75 Ohio St.3d 578, 1996-Ohio-265, paragraph four of the
syllabus. As previously stated, reasonable minds can only conclude that defendant
granted plaintiff the full amount of FMLA leave certified by her physician, and that
defendant’s policy on sick leave did not allow any employee to extend his or her
retirement date by utilizing sick leave at the end of the employee’s tenure. Plaintiff has
provided no evidence of any other circumstances that would compel a reasonable
person in her position to resign.     Therefore, the only reasonable conclusion is that
defendant did not constructively terminate plaintiff’s employment, and plaintiff thus
cannot prove a prima facie case of employment discrimination.
       {¶22} Furthermore, to the extent that plaintiff also couches her claim of
discrimination as arising under a “hostile work environment” theory, plaintiff has failed to
present any evidence of the type of conduct necessary to prevail on such a theory, and
both Bale and Henne aver that plaintiff was at all times treated courteously, respectfully,
and without regard for her age or disability.
       {¶23} Accordingly, defendant is entitled to judgment as a matter of law on
plaintiff’s claim of unlawful discrimination under R.C. 4112.02.


INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
       {¶24} The elements of intentional infliction of emotional distress are 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 Hosps. (1991), 78 Ohio App.3d 73, 82.
       {¶25} The only evidence plaintiff has presented of emotional distress is a
statement in her affidavit relating that in June 2009, she received paperwork from
Case No. 2010-11358                        -8-                                 DECISION

defendant describing the ESP and she learned at that time that she retired one day too
early to be included in the program. According to plaintiff, this caused her “further insult
and emotional injury.”
       {¶26} Upon review, reasonable minds can only conclude that the alleged conduct
of defendant is not of the extreme and outrageous character required to prevail upon a
claim for intentional infliction of emotional distress.   See Yeager v. Local Union 20
(1983), 6 Ohio St.3d 369, 374. Further, a plaintiff asserting such a claim must present
“some ‘guarantee of genuineness’” in support thereof, such as an expert opinion or the
testimony of lay witnesses who are acquainted with the plaintiff to prevent summary
judgment in favor of defendant. Powell v. Grant Med. Ctr., 148 Ohio App.3d 1, 6, 2002-
Ohio-443, quoting Paugh v. Hanks (1983), 6 Ohio St.3d 72, 76. Accordingly, plaintiff’s
claim must fail as a matter of law.


CIVIL CONSPIRACY
       {¶27} “‘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
St.3d 415, 419, 1995-Ohio-61, quoting LeFort v. Century 21-Maitland Realty Co. (1987),
32 Ohio St.3d 121, 126.        “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.
       {¶28} According to the complaint, plaintiff’s claim for civil conspiracy is premised
upon the alleged fraud and unlawful discrimination discussed above.           However, as
previously stated, defendant is entitled to judgment as a matter of law on those and
indeed all of plaintiff’s other claims in this action.        Therefore, plaintiff cannot
demonstrate an unlawful act sufficient to support a civil conspiracy claim. Moreover,
Case No. 2010-11358                        -9-                            DECISION

plaintiff has presented no evidence from which it may be reasonably inferred that
defendant’s employees acted with malice.
      {¶29} 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.
Case No. 2010-11358                        - 10 -                                 DECISION




                                               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



LINDA STANCHINA

      Plaintiff

      v.

WRIGHT STATE UNIVERSITY

      Defendant

Case No. 2010-11358

Judge Alan C. Travis

JUDGMENT ENTRY

       {¶30} 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.




                                          _____________________________________
                                          ALAN C. TRAVIS
                                          Judge
Case No. 2010-11358               - 11 -                               DECISION


cc:


Mark J. Bamberger                    Velda K. Hofacker
8 South 3rd Street                   Assistant Attorney General
Tipp City, Ohio 45371                150 East Gay Street, 18th Floor
                                     Columbus, Ohio 43215-3130

RCV/dms
Filed January 6, 2012
To S.C. reporter March 23, 2012
