[Cite as Miller v. Ohio Dept. of Rehab. & Corr., 2013-Ohio-3629.]



                                                        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

GISELE MILLER

        Plaintiff

        v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

        Defendant

Case No. 2011-13141

Magistrate Holly True Shaver

DECISION OF THE MAGISTRATE

         {¶ 1} Plaintiff brought this action alleging employment discrimination. The issues
of liability and damages were bifurcated and the case proceeded to trial on the issue of
liability.
         {¶ 2} On May 10, 2010, plaintiff began her employment with defendant as a
Corrections Officer (CO) at Noble Correctional Institution (NCI). Plaintiff was subject to
a one-year probationary period. During her probationary period, plaintiff received on-
the-job training and had the opportunity to work every shift and CO position throughout
the institution.
         {¶ 3} Plaintiff’s performance was first evaluated on July 18, 2010. During that
evaluation, under the dimension titled “Dealing with Demanding Situations” it was noted
that “Miller is new and has had no emergency situations yet.” (Defendant’s Exhibit N.)
However, plaintiff met all of the goals that were expected of her, and her overall
evaluation was rated “satisfactory.” Plaintiff’s performance was evaluated a second
time on November 18, 2010. (Defendant’s Exhibit B.) During that evaluation, it was
noted that “Miller seems to understand the importance of boundaries between inmates
and officers but has not been in a situation to apply the reasonable risk factor.” It was
Case No. 2011-13141                        -2-                               DECISION

also noted that “Miller needs to work on her communication of the rules and
expectations to inmates. In regards to the fact of inmates running around during such
times as count time and lock down [sic]. Miller needs to show more control of the
inmates assigned to her.” Finally, under the goal titled “Makes prudent and sound
decisions and takes appropriate action to diffuse problem situations,” it was noted that
the rater had “not observed this officer in a problem situation.” Plaintiff remained on
probation.
        {¶ 4} On January 24, 2011, plaintiff’s performance was evaluated again. As a
result of this evaluation, plaintiff’s employment was terminated effective February 3,
2011.    The basis for termination was reflected in reports from incidents that had
occurred on December 3, 2010, December 24, 2010, and January 19, 2011.                The
reports allege that plaintiff had panicked while she was working in the control room, and
that she had responded inappropriately to corrections officers’ requests for assistance
during fights between inmates.
        {¶ 5} Plaintiff asserts that defendant terminated her employment on the basis of
her gender in violation of R.C. Chapter 4112.
        {¶ 6} R.C. 4112.02 provides, in pertinent part, that:   “It shall be an unlawful
discriminatory practice: (A) For any employer, because of the * * * sex * * * 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.”
        {¶ 7} 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).
        {¶ 8} Absent direct evidence of discriminatory intent, Ohio courts resolve claims
of disparate treatment using the evidentiary framework established by the Supreme
Case No. 2011-13141                            -3-                              DECISION

Court of the 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) [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.
       {¶ 9} If plaintiff establishes a prima facie case, the burden of production shifts to
defendant to “articulate some legitimate, nondiscriminatory reason for [its action.]”
McDonnell Douglas, supra, at 802. If defendant succeeds in doing so, then the burden
shifts back to plaintiff to prove that the legitimate, nondiscriminatory reasons offered by
defendant were a mere pretext for discrimination. Id. The court must determine either:
“‘(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., 10th Dist. No. 97APE12-
1728 (Nov. 5, 1998), quoting Frantz v. Beechmont Pet Hosp., 117 Ohio App.3d 351,
359 (1st Dist.1996).
       {¶ 10} It is undisputed that plaintiff, as a female, is a member of a protected class,
and that she suffered an adverse employment action. Defendant asserts that plaintiff
was not qualified for the position because she failed to respond appropriately to critical
situations as noted in the incident reports.
       {¶ 11} “The prima facie burden of showing that a plaintiff is qualified can be met
by presenting credible evidence that his or her qualifications are at least equivalent to
the minimum objective criteria required for employment in the relevant field. Although
the specific qualifications will vary depending on the job in question, the inquiry should
focus on criteria such as plaintiff’s education, experience in the relevant industry, and
demonstrated possession of the required general skills.” Saha v. Ohio State Univ., 10th
Case No. 2011-13141                         -4-                                 DECISION

Dist. No. 10AP-1139, 2011-Ohio-3824, ¶ 49, citing Wexler v. White’s Fine Furniture,
Inc., 317 F.3d 564, 575-576 (6th Cir.2003).
       {¶ 12} Captain Todd Mugrage testified that he interviewed plaintiff for the position
and that plaintiff had obtained a masters’ degree and was educated as a counselor. It is
not disputed that plaintiff met the minimum requirements to become a CO subject to
completing a probationary period. Therefore, the court finds that plaintiff was qualified
for the position of a probationary CO.
       {¶ 13} With regard to the fourth element of a prima facie case, plaintiff did not
present any evidence to show that she was replaced by someone outside the protected
class. Plaintiff argued that defendant treated a non-protected, similarly-situated person
more favorably. To support this assertion, plaintiff testified that Captain Mugrage told
her that when he first started his career he had “panicked” while working in the control
room, but that his employment was not terminated. However, plaintiff gave no specific
details about that incident, and when Captain Mugrage testified, he stated that it would
be “speculation” to state that he had panicked in the control room.
       {¶ 14} In order to establish a prima facie case of discrimination based upon
treatment of comparables, a plaintiff must show that the other persons referenced were
comparable in all respects. Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992).
A “plaintiff need not demonstrate an exact correlation with the employee receiving more
favorable treatment in order for the two to be considered ‘similarly-situated’; rather, * * *
the plaintiff and the employee with whom the plaintiff seeks to compare [herself] * * *
must be similar in ‘all of the relevant aspects.’ The individuals with whom the plaintiff
seeks to compare * * * [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.” (Citations omitted.) Clark v. City of Dublin,
10th Dist. No. 01AP-458, 2002-Ohio-1440, ¶ 23.
Case No. 2011-13141                        -5-                                 DECISION

       {¶ 15} Upon review of the evidence, the court finds that plaintiff’s attempt to use
Captain Mugrage as a comparable employee fails. First, plaintiff failed to identify who
Captain Mugrage’s supervisor was when he allegedly panicked. Second, plaintiff failed
to prove that Captain Mugrage was a probationary employee when he allegedly
panicked. Third, even if Captain Mugrage had panicked, the stated reason for plaintiff’s
termination included not only panicking in the control room but also failing to assist
another officer during a fight. The court finds that Captain Mugrage and plaintiff did not
engage in the same conduct.
       {¶ 16} Plaintiff also testified that another male CO with whom she was working
had gotten upset during a “shakedown” and had acted inappropriately by destroying
inmates’ property. However, plaintiff could not identify the CO, and she admitted that
she did not report his conduct to a supervisor. Plaintiff also failed to establish whether
the unidentified CO was a probationary employee and who supervised him.               Upon
review of the evidence, the court finds that the conduct of destroying inmate property is
not similar in nature to panicking in the control room and failing to assist another officer
during a fight. As such, the court finds that plaintiff has failed to prove that either
Captain Mugrage or the unidentified male CO was a similarly situated employee.
Therefore, the court finds that plaintiff has failed to establish a prima facie case of
employment discrimination.
       {¶ 17} Assuming, arguendo, that plaintiff had established a prima facie case of
discrimination, defendant has articulated a legitimate, nondiscriminatory reason for
terminating her employment: that she was unable to successfully carry out the duties
and responsibilities of a CO, as documented in the incident reports from December 3,
2010, December 24, 2010, and January 19, 2011. Plaintiff asserts that defendant’s
proffered reasons have no basis in fact. Therefore, the court shall address the incidents
as noted in the reports individually.
Case No. 2011-13141                        -6-                                DECISION

I. DECEMBER 3, 2010 INCIDENT
      {¶ 18} Lieutenant Elbert Rose testified that he was working in the segregation unit
performing rounds when he heard a scream come across the radio about a fight in one
of the dormitories. Lt. Rose ran to the sally port, but after making multiple requests to
open the door, it did not open. When plaintiff had finally pushed the button to open the
door, the situation in the dormitory had concluded. In Lt. Rose’s opinion, with eight
months of on-the-job training, plaintiff should have been capable of performing all of the
required tasks in the control room. Lt. Rose explained that the equipment in the control
room is configured so that one officer can perform multiple tasks. Lt. Rose opined that
plaintiff did not possess the good judgment necessary to be a CO and that she failed to
make decisions under stress.
      {¶ 19} Lieutenant Scott Randolph testified that he was performing rounds when
he heard a panicked voice screaming over the radio. Lt. Randolph stated that when
someone panics over the radio, everyone assumes the worst is happening.                 Lt.
Randolph testified that he heard Lt. Rose order plaintiff to open the segregation door at
least three times before she opened it.       Lt. Randolph opined that plaintiff did not
possess the judgment required for a CO.
      {¶ 20} Plaintiff testified that she was working in the control room when a report of
a fight came across the radio. Plaintiff denied that she panicked, and testified that she
responded immediately and appropriately to obtain escorts for two fighters. Plaintiff
added that it does not “make sense” that she would panic in such a situation.


II. DECEMBER 24, 2010 INCIDENT
      {¶ 21} CO Sharon Graham testified that she was working in the control room with
plaintiff; that she was taking inventory of the keys and that plaintiff was assigned to the
radio; and that when a call regarding a fight came through, plaintiff “sat there and did
nothing.” CO Graham intervened to call for assistance and announced that there was a
Case No. 2011-13141                        -7-                                DECISION

fight in the “pit.” Plaintiff then corrected CO Graham to say that the fight was in the
gym. CO Graham testified that at the time of the incident, she wondered why plaintiff
had not made the call herself if she knew where the fight was. CO Graham testified that
as a result of this incident, she lost trust in plaintiff and felt that she could no longer
count on plaintiff to come to her aid.
       {¶ 22} According to plaintiff, she was working in the control room when a call
came across the radio. Plaintiff did not hear what was said initially. When plaintiff
turned to respond, CO Graham intervened and announced that there was a fight in the
“pit.” However, the fight was actually occurring in the gym. According to plaintiff, the
other employees in the control room were socializing; she was the only one doing
anything work-related; and she assumed no one else heard the radio because no one
else responded.


III. JANUARY 19, 2011 INCIDENT
       {¶ 23} CO Jared McGilton testified that CO Cavendish called for assistance with
a fight in progress in the “B-2” dormitory. CO McGilton described the B-2 dormitory at
NCI as an open bay with racks of metal bunk beds for 120 inmates. CO McGilton
stated that each dormitory officer is issued a hand-held radio, a set of keys, and a set of
hand restraints. After CO Cavendish called for assistance, CO McGilton ran to the East
Bay in B-2 and saw two inmates fighting: one inmate was on the ground and another
was near the wall but not obeying verbal commands to stay on the wall. CO McGilton
observed that plaintiff was not keeping the inmate on the wall and that she was slowly
moving away from the scene. CO McGilton intervened and placed his hands on the
inmate. CO McGilton felt that the situation was not under control and he told plaintiff to
place hand restraints on the inmate. CO McGilton testified that he spoke to plaintiff
afterwards but felt that she did not understand the severity of what had happened.
       {¶ 24} CO Timothy Johnson testified that he responded to a call for assistance
and observed CO McGilton telling plaintiff to “cuff” the inmate who was coming off the
Case No. 2011-13141                          -8-                                DECISION

wall. CO Johnson witnessed plaintiff backing away from the situation. CO Johnson
stated that each CO has only one set of handcuffs, and that plaintiff should have been
using her handcuffs on the inmate who was on the wall since CO Cavendish had placed
his handcuffs on the inmate who was on the floor. CO Johnson described plaintiff as
appearing “startled” and that she was five or six feet away from CO Cavendish. CO
Johnson testified that plaintiff’s inaction had placed another officer in jeopardy.
       {¶ 25} According to plaintiff, she was assigned as a “relief officer” that day and
was not aware that she should have been carrying handcuffs. While she was working
with CO Cavendish in a dormitory, a fight occurred.              According to plaintiff, CO
Cavendish got between the two fighting inmates and subdued one of them on the floor.
Plaintiff asserted that she took the other inmate to the wall. However, she admitted that
she did not have handcuffs to place on the inmate. CO McGilton and another CO
rushed in to assist. According to plaintiff, CO McGilton yelled at her and threw his
handcuffs to her so that she could cuff the inmate on the wall. Plaintiff testified that she
felt that she had been assisting CO Cavendish adequately and that he was never “in
harm’s way.” Plaintiff disputes CO McGilton and CO Johnson’s accounts of the incident
because they arrived after the inmates had stopped fighting. Plaintiff opined that the
absence of an incident report from CO Cavendish shows that CO McGilton and CO
Johnson’s accounts lack credibility.
       {¶ 26} As a result of the events described in the incident reports, Captain B.J.
Wilson recommended that plaintiff be removed from her probationary period and that
her employment be terminated. Wilson testified that when he had observed plaintiff
working in the dormitory, the inmates were very loud. Wilson stated that he relied on his
own observations and the recommendation of Lt. Rose and other lieutenants to remove
plaintiff from her probationary employment. Wilson testified that plaintiff did not interact
with inmates, that she lacked control over inmates, and described her as “lazy.” Wilson
did not doubt the truthfulness or accuracy of plaintiff’s final evaluation.
Case No. 2011-13141                        -9-                                 DECISION

       {¶ 27} According to plaintiff, in December 2010, she felt that both Lt. Rose and
CO McGilton began to treat her differently.       Plaintiff testified that she felt she was
qualified to be a CO and that she never got any negative feedback from anyone except
Lt. Rose and CO McGilton. Plaintiff testified that she felt that Lt. Rose and CO McGilton
took a dislike to her and they worked together to catch her doing something wrong so
that her probation could be terminated.
       {¶ 28} The court finds that the greater weight of the evidence shows that the
incidents that were reported did, in fact, occur. Although plaintiff testified that she felt
that Lt. Rose and CO McGilton treated her “differently,” the greater weight of the
evidence shows that plaintiff failed to respond in a timely or appropriate manner in
critical situations. Specifically, the testimony of Lt. Rose, Lt. Randolph, CO Graham,
CO McGilton, CO Johnson, and Captain Wilson was more credible than plaintiff’s with
regard to the incidents that led to her termination. In the final analysis, the court finds
that plaintiff has failed to prove by a preponderance of the evidence that the legitimate,
nondiscriminatory reasons offered by defendant were a pretext for discrimination.
       {¶ 29} Lastly, plaintiff elicited the testimony of Jody Beardmore, labor relations
officer at NCI, who stated that from January 1, 2008 to the date of trial, 12 of 66 male
probationary employees had been terminated from employment, while 4 of 13 female
probationary employees had been terminated from employment. Plaintiff argues that a
greater percentage of female employees at NCI are removed from probationary
employment. The court notes that plaintiff did not assert a claim for disparate impact
discrimination in her complaint. “Disparate impact discrimination involves employment
practices that are facially neutral in their treatment of different groups but fall more
harshly on one group. * * * In a disparate impact case, a plaintiff must begin by
identifying the specific employment practice that is challenged and that is allegedly
responsible for any observed statistical disparity. * * * ‘Once the employment practice at
issue has been identified, causation must be proved; that is, the plaintiff must offer
statistical evidence of a kind and degree sufficient to show that the practice in question
Case No. 2011-13141                        - 10 -                              DECISION

has caused’ the alleged discrimination.” (Internal citations omitted.) Albaugh v. City of
Columbus, Division of Police, 10th Dist. No. 02AP-687, 2003-Ohio-1328, ¶ 11.
       {¶ 30} Upon review of the evidence, the court finds that plaintiff has failed to both
identify any specific employment practice that is allegedly responsible for any statistical
disparity and to offer sufficient statistical evidence to show that the practice has caused
any discrimination.
       {¶ 31} For the foregoing reasons, the court finds that plaintiff has failed to prove
any of her claims by a preponderance of the evidence and, accordingly, judgment is
recommended in favor of defendant.
       {¶ 32} 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).



                                           _____________________________________
                                           HOLLY TRUE SHAVER
                                           Magistrate


cc:
Case No. 2011-13141                - 11 -                           DECISION


Emily M. Simmons                      Louis J. Carlozzi
Assistant Attorney General            1382 West 9th Street, Suite 215
150 East Gay Street, 18th Floor       Cleveland, Ohio 44113
Columbus, Ohio 43215-3130

002

Filed March 8, 2013
To S.C. Reporter August 22, 2013
