[Cite as Gardenhire v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-4331.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Celina H. Gardenhire,                               :

                Appellant-Appellant,                :

v.                                                  :                       No. 19AP-54
                                                                        (C.P.C. No. 18CV-7121)
Ohio Department of Rehabilitation                   :
and Correction,                                                (ACCELERATED CALENDAR)
                                                    :
                Appellee-Appellee.
                                                    :




                                           D E C I S I O N

                                    Rendered on October 22, 2019


                On brief: James J. Leo Law Office, and James J. Leo, for
                appellant. Argued: James J. Leo.

                On brief: Dave Yost, Attorney General, and Joseph
                Rosenthal, for appellee. Argued: Joseph Rosenthal.

                  APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
        {¶ 1} Appellant, Celina H. Gardenhire, appeals from a judgment of the Franklin
County Court of Common Pleas affirming an order issued by the State Personnel Board of
Review ("SPBR" or "board"). SPBR's order modified and lessened discipline imposed by
appellee, the Ohio Department of Rehabilitation and Correction ("ODRC" or "appellee"),
arising out of appellant's employment at Grafton Correctional Institution ("Grafton").
I. Facts and Procedural History
        {¶ 2} Appellant worked for ODRC at Grafton with the title of Operations
Compliance Manager beginning June 1, 2014. In this position, she was a member of the
warden's executive staff and was responsible for administering the requirements mandated
by the Federal Prison Rape Elimination Act ("PREA") at Grafton. PREA was enacted to
address and eliminate sexual abuse, sexual harassment, and retaliation toward inmates.
No. 19AP-54                                                                               2

Grafton was scheduled for a PREA audit in April 2017, and appellant's responsibilities
included preparing Grafton for the audit to ensure continued accreditation by the American
Correctional Association and compliance with standards promulgated by the United States
Department of Justice. Grafton needed to successfully complete the audit in order to
remain accredited and continue receiving federal funding.
       {¶ 3} Preparation for the 2017 PREA audit required appellant to collect and
organize documentation throughout the 2016 calendar year. The collected information
would periodically be submitted to Charlotte Owens, PREA Implementation Director with
ODRC central office.
       {¶ 4} The timeliness and accuracy of the pre-audit information gathered by
appellant presented a point of factual dispute in appellant's disciplinary proceedings.
Appellant's completion of the task was complicated when appellant took an authorized
medical leave of absence beginning February 21, 2017. Appellant's supervisors found fault
with her preparation for the pre-audit and initiated a disciplinary process that culminated
in a removal order pursuant to R.C. 124.34, stating in part as follows:
              As Program Administrator 2 (OCM) responsible for all
              Grafton Correctional Institutions preparedness for audits,
              you failed to have all audit documents and files completed by
              December 31, 2016 as directed by your supervisor Deputy
              Warden Ron Armbruster and Warden LaShann Eppinger.

              Upon learning that you would be leaving for an extended
              period on February 21, 2017 you further failed to properly
              prepare the audit documents and files, misrepresenting to Mr.
              Armbruster and Warden Eppinger, with knowledge and
              intent, that the audit files and documents were audit ready,
              which in fact, they were not. This malfeasance on your part,
              without intervention of others, could have cost the institution
              its national accreditation, which is how GCI's overall
              compliance and performance is graded and a prime function
              of your position description.

(Appellee's Hearing Ex. 1 at 3.)
       {¶ 5} As a classified state employee, appellant appealed the removal order to SPBR.
After a three-day hearing, the hearing officer issued a report recommending affirmance of
the removal order. Appellant filed objections to the hearing officer's report and requested
an oral argument before the full board. After review, the board adopted the factual findings
contained in the hearing officer's report, but rejected the recommendation to affirm
No. 19AP-54                                                                             3

appellant's removal. The board determined appellant should maintain her employment
but be demoted one grade to lieutenant and reinstated at Grafton or another nearby
correctional facility.
       {¶ 6} Appellant filed a further appeal to the Franklin County Court of Common
Pleas. The common pleas court reviewed appellant's arguments concerning the state of the
evidence before SPBR and concluded the board's order was supported by reliable,
probative, and substantial evidence, was in accordance with law, and must be upheld.
II. Assignments of Error
       {¶ 7} Appellant appeals and assigns the following five assignments of error for our
review:
               [I.] The Lower Court's Decision, that Ms. Gardenhire Failed to
               Meet an Alleged December 31, 2016 Deadline, Is Unreasonable
               Because ODRC, Which Had the Burden of Proof at the Hearing,
               Failed to Produce Any Document to Establish that a December
               31st Deadline Ever Existed, and Warden Eppinger's Self-
               Serving Testimony on that Matter Stretches the Limits of
               Credibility as It Was Contrary to Other Testimony, Was
               Contrary to Circumstantial Evidence, and Was Contrary to
               Simple Notions of Common Sense.

               [II.] The Lower Court's Decision, that Ms. Gardenhire
               Misrepresented that PREA Files were Audit Ready (Completed
               and Approved), Is Unreasonable Because, By the Warden's
               Own Testimony, Ms. Gardenhire Only Represented that PREA
               File Changes Had Been Submitted to Ms. Owens And Were
               Pending Approval, Which Was Entirely Accurate and there was
               No Misrepresentation.

               [III.] The Lower Court's Decision, that Ms. Gardenhire Failed
               to Properly Prepare PREA Audit Files, Is Unreasonable
               Because Ms. Gardenhire's PREA File Submissions Were as
               Good or Better than those of Comparators.

               [IV.] The Lower Court Erred, As a Matter of Law, By Rejecting
               Ms. Gardenhire's Disparate Treatment Comparators and
               Holding that "SPBR Is Under No Obligation to Treat All
               Individuals the Same" Because A Disparate Treatment Rule
               (O.A.C. 124-9-11) Exists and Case Precedent Exists Which
               Compel SPBR To Consider Whether Similarly Situated
               Employees are Being Disciplined the Same.

               [V.] The Lower Court's Decision is Unreasonable Because it is
               Based Upon Prior Discipline Issued to Gardenhire and There is
               No Evidence She Has Committed the Offenses of the Current
No. 19AP-54                                                                                4

              Charges. Even if Such Evidence Existed, Use of Prior Discipline
              Would Still Be Inappropriate Because Gardenhire Had No
              Opportunity to Challenge It to an Impartial, Third-Party
              Tribunal.

III. Analysis
       {¶ 8} Under R.C. 119.12, the common pleas court, when reviewing an order of an
administrative agency, must consider the entire record to determine whether the agency's
order is supported by reliable, probative, and substantial evidence and is in accordance with
law. Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110-11 (1980). The Supreme Court
of Ohio has defined reliable, probative, and substantial evidence as follows:
              (1) "Reliable" evidence is dependable; that is, it can be
              confidently trusted. In order to be reliable, there must be a
              reasonable probability that the evidence is true.
              (2) "Probative" evidence is evidence that tends to prove the
              issue in question; it must be relevant in determining the issue.
              (3) "Substantial" evidence is evidence with some weight; it
              must have importance and value.

(Footnotes omitted.) Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570,
571 (1992).
       {¶ 9} Review by the common pleas court is neither a trial de novo nor an appeal on
questions of law only, but a hybrid review in which the court must assess the evidence
regarding the credibility of witnesses and the probative value of the evidence. Andrews v.
Bd. of Liquor Control, 164 Ohio St. 275 (1955); Rupert v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 17AP-173, 2017-Ohio-8377. While the common pleas court will give due
deference to the administrative agency's resolution of evidentiary conflicts, the factual
findings of the agency are not conclusive before the common pleas court. Conrad at 111;
Crosier v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 17AP-4, 2018-Ohio-820, ¶ 23.
       {¶ 10} On further review to this court, our review is more limited than that of the
common pleas court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993). Our
review is limited to determine whether the common pleas court abused its discretion in
finding that the order of the board was supported by reliable, probative, and substantial
evidence and in accordance with law. In keeping with this, we retain plenary review on
purely legal questions. Big Bob's, Inc. v. Ohio Liquor Control Comm., 151 Ohio App.3d 498,
2003-Ohio-418, ¶ 15 (10th Dist.).
No. 19AP-54                                                                              5

       {¶ 11} Appellant's first assignment of error asserts the common pleas court erred in
finding the evidence supported SPBR's conclusion that ODRC had proved appellant failed
to meet a December 31, 2016 deadline in preparation for the pre-audit. The evidence before
the SPBR hearing officer generally established that Owens set two deadlines in preparation
for the audit: a deadline termed the "Submission Deadline" for Grafton's audit preparation
was February 6, 2017; and Grafton's "Audit Ready Deadline" was March 13, 2017. ODRC
and the disciplinary notice charges appellant failed to have substantially all audit
documents and files completed by December 31, 2016, well in advance of the above two
deadlines.    Appellant asserts no evidence introduced at the hearing mentions this
additional December 31, 2016 deadline in relation to any aspect of appellant's preparation
for the pre-audit. Appellant herself directly testified that no such deadline existed.
       {¶ 12} Appellee points out the documentary and testimonial evidence establishes
earlier deadlines than those cited by appellant. The minutes of a department head meeting
from the institution, at which preparation for the next PREA audit was discussed,
addressed concerns over timely submission of documents and contain the following
language:
              The expectation from here on out will be that at the end of
              each month, files will be collected and scanned by Mrs.
              Gardenhire. She will meet with you to highlight documents,
              then she will scan them. All files that can be turned in during
              the collection period (August – December) will be turned in at
              the end of the month. By January, files will be completed with
              the exception of a few which we don’t have documentation for
              yet.

(June 9, 2016 Meeting Minutes, Appellee's Ex. 11 at 173.)
       {¶ 13} This directive clearly implemented a procedural expectation on the part of
appellant's hierarchal superiors that she would be uploading on a monthly basis so that by
the end of December 2016 all documentation would be essentially complete. Warden
Eppinger testified before the hearing officer that the monthly goal was clearly
communicated: "In other meetings, I said December 31st. Everybody knew December 31st
was the deadline." (Tr. Vol. III at 109.) This requirement of monthly uploads was in
response to problems with an internal audit in June 2016: "[W]hat occurred in this one, the
audit did not go well as far as our Ohio standards. We lost several Ohio standards in PREA
due to some of the issues outlined here." (Tr. Vol. III at 22.)
No. 19AP-54                                                                                6

       {¶ 14} Appellant's central-office supervisor for PREA purposes, Owens, relied on the
monthly upload procedure and noted it had not been followed. The two exchanged e-mails
discussing empty computer files or folders in January 2017. Owens testified she found
numerous empty folders on January 30, 2017 that contained no PREA documents, and
these folders should have been filled with the monthly uploads required by Warden
Eppinger.
       {¶ 15} Based on this evidence of the existence of a December 31st deadline and
appellant's failure to comply with it, the common pleas court did not abuse its discretion in
determining there was reliable, probative, and substantial evidence that appellant failed to
meet a December 31st deadline. Appellant's first assignment of error is overruled.
       {¶ 16} Appellant's second assignment of error asserts the court of common pleas
erred in concluding there was evidence supporting the SPBR's conclusion that appellant
misrepresented the condition of her PREA files, which were deemed not to be audit-ready
prior to her scheduled medical leave of absence. Appellant argues there is no evidence she
told her supervisors the files were "audit ready," when in fact appellant had only
represented to Warden Eppinger that the files were complete and submitted to Owens for
review, and appellant was awaiting Owens' evaluation and suggestions for further minor
work on the files.
       {¶ 17} Appellee responds that appellant twice told her supervisors that work was
progressing satisfactorily. In an October 7, 2016 e-mail, appellant advised Deputy Warden
Armbruster she would meet the deadline for the February preparation of the audit: "The
whole process is my responsibility and allowing others to control the process only causes
interference. As you are aware, I have multiple tasks to complete and I would like to be
given the opportunity to complete without any unnecessary interference. I think it would
be good to be allowed to oversee my area the same way the following direct reports are
allowed." (Appellee's Hearing Ex. 10 at 89.) Warden Eppinger testified he was told by
appellant prior to February 6th that everything was done and ready for Owens' review, but
Owens eventually found, after examining the documents on February 21st or 22nd, the files
were deficient. Owens testified regarding appellant's inability to correct the identified
documentary deficiency before leaving on planned medical leave.
       {¶ 18} Based on these communications and results, the hearing officer was faced
with a factual determination regarding the import of appellant's assertions that the audit
preparations were progressing satisfactorily. On the one hand, appellant considers she
No. 19AP-54                                                                                  7

properly advised her superiors that all required documentation would be ready for Owens'
review and assessment and that revisions and corrections would inevitably ensue at Owens'
direction. The files, therefore, were in appellant's estimation as ready as they could be until
reviewed. Appellee, on the other hand, asserts the state of the documents gathered by
appellant over the course of the year was so deficient that the files were not only unready
for audit, but incomplete and unfit for review by Owens.
       {¶ 19} Between February 3rd and 9th, 2017, Owens reviewed files submitted by
appellant and deemed them unacceptable. These included a number of electronic file
folders that contained no documentation in the categories they were intended to hold. After
appellant gave the document additional attention at Owens' direction, documents were still
missing and some materials required corrections. Because of appellant's departure on
medical leave, another staffer, Steve Weisher, normally occupying the post of institutional
investigator, took over appellant's PREA responsibilities. Weisher testified he worked five
to six hours a day for two straight weeks to complete Grafton's PREA files and make them
audit ready for the March 2017 deadline. The amount of work directly contradicted the
Warden's impression of the state of preparation following discussions with appellant on
previous occasions.
       {¶ 20} The hearing officer concluded appellant had affirmatively misrepresented
her progress toward completion of preparations for the PREA audit and failed to inform
her supervisors of the "substantial risk of delay or failure" in those preparations. (Report
and Recommendation at 5.) There was reliable, probative, and substantial evidence in the
record to support this factual conclusion, and the common pleas court therefore did not
abuse its discretion in upholding SPBR's ultimate decision. Appellant's second assignment
of error is overruled.
       {¶ 21} Appellant's third assignment of error asserts the common pleas court erred
in upholding SPBR's conclusion that appellant's results were not on par with work
performed by comparable employees within other ODRC institutions. Appellant's fourth
assignment of error asserts the hearing officer, SPBR, and the common pleas court
improperly rejected consideration of discipline imposed on those comparably situated
ODRC employees. These two assignments of error present related points for discussion
and will be addressed together.
       {¶ 22} Appellee's response to these issues begins with discussion of appellant's
extensive disciplinary history, which the comparably situated employees did not share and
No. 19AP-54                                                                                 8

which is further discussed below in connection with appellant's fifth assignment of error.
More conclusively, even if appellant were similarly situated to the individuals whose work
she compares unfavorably to her own, SPBR is under no obligation to treat different
disciplinary cases identically. Pursuant to Ohio Adm.Code 124-9-11(A), SPBR "may hear
evidence of disparate treatment between the appellant and other similarly situated
employees of the same appointing authority for the purpose of determining whether work
rules or administrative policies are being selectively applied by the appointing authority or
to determine whether the discipline of the similarly situated employees is uniform."
(Emphasis added.) Ohio Adm.Code 124-9-11(B) provides that evidence of disparate
treatment may be considered in evaluating the appropriateness of discipline imposed.
       {¶ 23} The question of whether employees are similarly situated so that disparate
treatment may be considered is a question for the trier of fact, in this case, SPBR. Ohio
Dept. of Mental Retardation & Dev. Disabilities v. Moore, 4th Dist. No. 98 CA 1 (June 18,
1998). Ultimately, however, employees' discipline will stand or fall on its own merits.
Green v. W. Reserve Psychiatric Rehab., 3 Ohio App.3d 218, 219 (9th Dist.1981); Long v.
Ohio Dept. of Job & Family Servs., 180 Ohio App.3d 772, 2009-Ohio-643 (10th Dist.).
While appellant in this case offered disparate-treatment evidence by presenting evidence
regarding four employees holding comparable positions to her own at other correctional
facilities, those employees were not subject to the same appointing authority, the warden
of Grafton, as appellant. Moreover, as noted by SPBR, the acts and omissions for these
other employees that led to minor discipline were not as serious as appellant's. Nor had the
other purportedly comparable employees received as much prior discipline in relation to
their duties and responsibilities in preparing for a PREA audit.
       {¶ 24} Moreover, as outlined above, the record supports the finding that appellant
was deficient in fulfilling her duties in preparing for the pre-audit. In summary, the hearing
officer's report, SPBR's order, and the common pleas court's decision in this case correctly
rely on reliable, probative, and substantial evidence regarding application of discipline in
this case in light of comparably situated employees and the nature of appellant's
deficiencies in preparing for the PREA audit. Appellant's third and fourth assignments of
error are overruled.
       {¶ 25} Appellant's fifth assignment of error asserts appellant's past discipline may
not be used against her in these proceedings because she had no opportunity to challenge
that discipline before a fair and impartial tribunal. Before the hearing officer, appellee
No. 19AP-54                                                                                9

presented evidence that over a 19-month period preceding June 2017, appellant had
accumulated eight violations culminating in two 5-day suspensions related to execution of
her PREA responsibilities. Ohio Adm.Code 124-9-04(C) governs the admissibility of prior
discipline and provides that SPBR may consider such evidence if it is offered to prove either
"[n]otice to an employee that particular conduct is unacceptable[,] or [a] continuing
problem justifying harsher discipline than might otherwise have been imposed." (Internal
numbering omitted.) Such evidence is limited to written reprimands, suspensions, or
removals contained in the employee's personnel file. Ohio Adm.Code 124-9-04(B). The
evidence of past discipline presented before SPBR in appellant's case meets the
requirements of Ohio Adm.Code 124-9-04(C) for consideration of prior discipline to prove
a continuing problem with appellant's administration of the PREA audit preparations and
consequent harsher discipline in the present case. Appellant presents no legal authority for
the proposition that minor infractions which would not give rise to a right of direct appeal
to SPBR may not be considered in a progressive discipline scheme such as that in place at
ODRC. Appellant's fifth assignment of error is overruled.
IV. Conclusion
       {¶ 26} In accordance with the foregoing, appellant's five assignments of error are
overruled and the judgment of the Franklin County Court of Common Pleas is affirmed.
                                                                       Judgment affirmed.
                      BROWN and LUPER SCHUSTER, JJ., concur.
