[Cite as Caiazza v. Mercy Med. Ctr., 2014-Ohio-2290.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


MATTHEW P. CAIAZZA                                :     JUDGES:
                                                  :     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                       :     Hon. Sheila G. Farmer, J.
                                                  :     Hon. Patricia A. Delaney, J.
-vs-                                              :
                                                  :
MERCY MEDICAL CENTER, ET AL.                      :     Case No. 2013CA00181
                                                  :
        Defendants-Appellees                      :     OPINION



CHARACTER OF PROCEEDING:                                Appeal from the Court of Common
                                                        Pleas, Case No. 2012CV03652


JUDGMENT:                                               Affirmed/Reversed in Part &
                                                        Remanded


DATE OF JUDGMENT:                                       May 27, 2014



APPEARANCES:

For Plaintiff-Appellant                                 For Defendants-Appellees

SALLY D. HENNING                                        KAREN SOEHNLEN MCQUEEN
7296 Ashburton Circle, NW                               P.O. Box 36963
North Canton, OH 44720                                  Canton, OH 44735-6963

TODD M. CONNELL                                         CRAIG PELINI
150 West Avenue, Suite 102                              8040 Cleveland Avenue, NW
Tallmadge, OH 44278                                     North Canton, OH 44720

                                                        For SODEXO/Brian Colosimo

                                                        OWEN RARRIC
                                                        P.O. Box 36963
                                                        Canton, OH 44735-6963
Stark County, Case No. 2013CA00181                                                    2

Farmer, J.

       {¶1}   In 1999, appellant, Matthew Caiazza, began employment with appellee,

Mercy Medical Center, Inc. In 2010, appellant worked as an LPN on 9 Main.

       {¶2}   In 2006, appellee, Jennifer Jones, began employment with appellee

Mercy, working in the food services department.

       {¶3}   Appellant and appellee Jones would frequently take "smoking breaks"

together, outside, off the hospital's property.

       {¶4}   On August 28, 2010, appellee Jones reported to her night supervisor,

Terrance Bowman, that during one of the smoke breaks, appellant had inappropriately

touched her breast outside of her clothing. The police were called and an investigation

ensued.

       {¶5}   Appellant explained that during the smoke break, appellee Jones offered

him the opportunity to touch her breast in exchange for the narcotic pain reliever,

Vicodin. He informed her that he could not give her any Vicodin, whereupon she invited

appellant to touch her breast anyway and he did so. A couple hours later, appellant

spoke to appellee Jones and informed her that he loved his wife and they could not

engage in a relationship. Thereafter, appellee Jones reported the incident.

       {¶6}   On August 30, 2010, appellant "forcibly" resigned his position at the

request of Lorraine Washington, appellee Mercy's then Director of Human Resources.

       {¶7}   Appellant was subsequently charged with gross sexual imposition. His

defense counsel subpoenaed appellee Mercy for employee and personnel records for

both appellant and appellee Jones.        Appellant did not receive all of the requested
Stark County, Case No. 2013CA00181                                                           3


documents and as a result, pled no contest to a reduced charge of disorderly conduct in

November 2010.

        {¶8}     On November 26, and December 3, 2012, appellant filed a complaint and

an amended complaint, respectively, against appellees Mercy and Jones, and also

several individuals associated with appellee Mercy in a supervisory position, to wit:

Thomas Cecconi, Peter Christ, Jeffrey Smith, Allyson Kelly, Kathy Casler, Patti

Bresnahan, and Lorraine Washington.           Appellant also named SODEXO, Inc., the

company that provided food services to appellee Mercy, and Brian Colosimo, an

employee thereof and appellee Jones's supervisor. Appellant made claims of breach of

contract, sexual harassment and aiding and abetting discrimination under R.C. Chapter

4112,    spoliation,   fraud,   unlawful   retaliation,   civil   conspiracy,   and   negligent

retention/supervision.

        {¶9}     All defendants save for appellee Jones filed a motion to dismiss the

complaint. By judgment entry filed February 14, 2013, the trial court granted the motion

in part, dismissing appellant's claims for breach of contract and aiding and abetting

discrimination, and dismissing the individual defendants on appellant's claims for sexual

harassment, unlawful retaliation, and negligent retention/supervision.

        {¶10} All parties moved for summary judgment on the remaining claims.

Thereafter, appellant voluntarily dismissed defendants SODEXO and Colosimo on July

8, 2013.       By judgment entry filed August 9, 2013, the trial court granted summary

judgment in favor of appellees Mercy, its individual named employees, and Jones.

        {¶11} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Stark County, Case No. 2013CA00181                                                       4


                                            I

      {¶12} "THE TRIAL COURT ERRED IN LAW BY DISMISSING APPELLANT'S

CLAIMS     FOR      BREACH    OF    DUTY     AND     AIDING    AND    ABETTING,       AND

DISCRIMINATION,       HARASSMENT         AND     RETAILIATION        CLAIMS      AGAINST

INDIVIDUAL DEFENDANTS."

                                            II

      {¶13} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON

THE REMAINING COUNTS."

                                            I

      {¶14} Appellant claims the trial court erred in granting the Civ.R. 12(B)(6) motion

to dismiss on his claims for breach of contract and aiding and abetting discrimination,

and    dismissing    the   individual   defendants     on     his   claims     for   sexual

harassment/discrimination and unlawful retaliation. We agree in limited part regarding

the claims for aiding and abetting discrimination and sexual discrimination.

      {¶15} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo.

Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228 (1990). A

motion to dismiss for failure to state a claim upon which relief can be granted is

procedural and tests the sufficiency of the complaint. State ex rel. Hanson v. Guernsey

County Board of Commissioners, 65 Ohio St.3d 545, 1992-Ohio-73. Under a de novo

analysis, we must accept all factual allegations of the complaint as true and all

reasonable inferences must be drawn in favor of the nonmoving party. Byrd. v. Faber,

57 Ohio St.3d 56 (1991).
Stark County, Case No. 2013CA00181                                                      5


                               BREACH OF DUTY CLAIM

      {¶16} In his amended complaint, appellant references "The Employee

Information Booklet," a compilation of personnel policies, practices, and procedures for

appellee Mercy, including a Code of Conduct and Ethical Behavior. Appellant claimed

appellee Mercy violated these policies and procedures by not fully complying with

subpoenas issued by him in conjunction with his criminal case (¶ 74), failing to fully

investigate his allegations against appellee Jones (¶ 75), and failing to properly handle

the respective complaints of himself and appellee Jones (¶ 76).

      {¶17} The facts as alleged in the amended complaint that we are required to

accept as true under a Civ.R. 12(B)(6) standard are: (1) appellee Mercy's Employee

Handbook and Code of Conduct and Ethical Behavior bound all the parties (¶ 15); (2)

appellee Mercy knew of a prior incident in 2009 involving appellee Jones and another

co-worker (Adam Harsh) because of appellee Jones's fiancé's actions during the

incident (¶ 30); (3) no report was made to the police regarding the 2009 incident (¶ 37);

(4) no investigation was conducted as to why appellee Jones delayed reporting the

incident sub judice (¶ 38); (5) its employees accepted appellee Jones's allegations as

true, and made no inquiry into appellant's allegations against appellee Jones (¶ 41-43,

58); (6) not all documents were disclosed when subpoenaed in conjunction with

appellant's criminal trial, including documents regarding appellee Jones's veracity (¶ 60-

63); (7) no one investigated if the touching of appellee Jones's breast was consensual

(¶ 46); (8) without interviewing appellee Jones, Lorraine Washington decided to

terminate appellant (¶ 54-56); and (9) appellee Jones was not disciplined for violating

appellee Mercy's policies (¶ 59).
Stark County, Case No. 2013CA00181                                                   6


       {¶18} It is appellant's position that the Employee Handbook and Code of

Conduct and Ethical Behavior are sufficient to overcome Ohio's employment at-will

doctrine. In Mers v. Dispatch Printing Co., 19 Ohio St.3d 100 (1985), paragraph one of

the syllabus, the Supreme Court of Ohio held: "Unless otherwise agreed, either party to

an oral employment-at-will employment agreement may terminate the employment

relationship for any reason which is not contrary to law." The Mers court also held the

following at 105:



              We therefore hold that where appropriate, the doctrine of

       promissory estoppel is applicable and binding to oral employment-at-will

       agreements when a promise which the employer should reasonably

       expect to induce action or forbearance on the part of the employee does

       induce such action or forbearance, if injustice can be avoided only by

       enforcement of the promise.

              The test in such cases is whether the employer should have

       reasonably expected its representation to be relied upon by its employee

       and, if so, whether the expected action or forbearance actually resulted

       and was detrimental to the employee.



       {¶19} Ohio has not abandoned its public policy of employment at-will, as

illustrated by the breadth of cases distinguishing Mers.   In Bartlett v. Daniel Drake

Memorial Hospital, 75 Ohio App.3d 334, 338 (1st Dist.1991), our brethren from the First

District set forth the exceptions commonly accepted:
Stark County, Case No. 2013CA00181                                                        7




           It is undisputed that Gwen was classified as an employee at will

     where, unless otherwise agreed, either party may terminate the

     employment relationship for any reason not contrary to law. Fawcett v.

     C.G. Murphy & Co. (1976), 46 Ohio St.2d 245, 75 O.O.2d 291, 348 N.E.2d

     144. In Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR

     261, 483 N.E.2d 150, the Ohio Supreme Court established two narrow

     exceptions to an employer's ability to discharge employees freely under

     employment-at-will contracts. These two exceptions involve the doctrine

     of promissory estoppel and the creation of an implied contract.

     Undisturbed by the holding in Mers is the generally accepted conclusion

     that items such as employer handbooks, company policy or oral

     representations do not create employee rights which alter the "termination

     for any reason" terms for discharge under the at-will situation unless the

     parties have a "meeting of the minds" indicating that such items are to be

     considered valid contracts altering the terms for discharge. Turner v. SPS

     Technologies,     Inc. (June        4,    1987),     Cuyahoga       App.      No.

     51945, unreported, 1987 WL 11967. While personnel manuals may be

     important in establishing the terms and conditions of employment, absent

     the necessary mutual assent or meeting of the minds by the employer and

     employee to establish employment-termination rights, handbooks or other

     supplementary     manuals      or   materials    merely    constitute   unilateral

     statements   of   company      rules     and    regulations.   Turner   v.   SPS
Stark County, Case No. 2013CA00181                                                    8

      Technologies Inc., supra; Isgro v. Deaconness Hosp. (Oct. 30, 1980),

      Cuyahoga App. No. 41966, unreported.

             In the case sub judice, we conclude that no contractual intent

      existed between the parties to modify the original at-will contract of

      employment.      Appellants' reliance on Drake Hospital's "Employee

      Discipline" and "Predisciplinary Conference and Appeal Procedure"

      materials is misplaced. These policies are but mere unilateral statements

      of the hospital's procedure for the invocation of disciplinary action against

      an employee, and do not create an implied employment agreement

      between the parties. Therefore, appellants did not possess a cause of

      action against the appellees for breach of contract predicated upon the

      provisions of Drake Hospital's personnel manual.       Consequently, there

      was no breach of contract or constructive discharge as alleged by

      appellants, and the trial court properly granted summary judgment to

      appellees on this claim.



      {¶20} Therefore, as to the claims of inadequate investigation and bias one-

sidedness that are accepted as true, the Employee Handbook and Code of Conduct

and Ethical Behavior did not modify the employment-at-will agreement and guarantee

employment. As in Bartlett, mere assertions that a more thorough investigation was

warranted are not sufficient to quash Ohio's employment at-will doctrine.
Stark County, Case No. 2013CA00181                                                        9


       {¶21} As for appellant's argument regarding a breach of duty to respond

appropriately and completely to a duly issued subpoena, we find such claim not to be

supported by any legal extension of Ohio's employment at-will doctrine.

       {¶22} The trial court did not err in dismissing the breach of duty claim.

                   AIDING AND ABETTING DISCRIMINATION CLAIM

       {¶23} In his complaint at ¶ 87-88, appellant claimed the defendants, individually

and collectively, violated R.C. 4112.02, unlawful discriminatory practices, specifically,

subsection (J) in light of subsection (A) which state the following:



              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.

              (J) For any person to aid, abet, incite, compel, or coerce the doing

       of any act declared by this section to be an unlawful discriminatory

       practice, to obstruct or prevent any person from complying with this

       chapter or any order issued under it, or to attempt directly or indirectly to

       commit any act declared by this section to be an unlawful discriminatory

       practice.
Stark County, Case No. 2013CA00181                                                         10


       {¶24} Appellant claimed he was constructively discharged, while appellee Jones

"was not issued a notice that she had violated any policy" (¶ 57, 59). Appellant claimed

he was discriminated against for being a male, as appellee Mercy and its employees

failed to fully investigate the allegations in violation of hospital policy and "undertaken on

behalf of women who made complaints" (¶ 64). In addition, appellee Mercy was aware

of the 2009 incident and knew or should have known that appellee Jones "acted in an

unreliable manner" (¶ 30, 49).

       {¶25} The individual named defendants associated with appellee Mercy included

Thomas Cecconi (President and Chief Executive Officer), Peter Christ (Director of

Security), Jeffrey Smith (Chief Operations Officer, Vice-President, and Chief

Compliance Officer), Allyson Kelly (Administrative Director), Kathy Casler (Clinical

Manager), Patti Bresnahan (Human Resources Manager or Interim Director/Director of

Human Resources), and Lorraine Washington (Director of Human Resources, January

1, 2009 to January 1, 2011).

       {¶26} In Genaro v. Central Transport, Inc., 84 Ohio St.3d 293, 300 (1999), the

Supreme Court of Ohio held the following:



              Based on the foregoing, we believe that the clear and unambiguous

       language of R.C. 4112.01(A)(1) and (A)(2), as well as the salutary

       antidiscrimination purposes of R.C. Chapter 4112, and this court's

       pronouncements in cases involving workplace discrimination, all evidence

       that individual supervisors and managers are accountable for their own

       discriminatory   conduct    occurring    in   the   workplace    environment.
Stark County, Case No. 2013CA00181                                                      11


       Accordingly, we answer the certified question in the affirmative and hold

       that for purposes of R.C. Chapter 4112, a supervisor/manager may be

       held jointly and/or severally liable with her/his employer for discriminatory

       conduct of the supervisor/manager in violation of R.C. Chapter 4112.



       {¶27} From our review of the amended complaint and facts alleged in ¶ 15-64,

there are no allegations of any participation in the decision to terminate appellant by Mr.

Cecconi, Mr. Smith, and Ms. Bresnahan. Therefore, the amended complaint fails to

state a claim for aiding and abetting discrimination against these defendants.

       {¶28} Apart from the presence of Mr. Christ, Ms. Kelly, and Ms. Casler at

meetings (¶ 54, 56), there are no allegations of them making the actual decision to

terminate appellant save for their agreement with Ms. Washington's decision to so

terminate (¶ 56) or of them being involved totally in the overall investigation. Therefore,

the amended complaint fails to state a claim for aiding and abetting discrimination

against these defendants.

       {¶29} The amended complaint claims the decision to terminate appellant was

made by Ms. Washington, the Director of Human Resources at the time for appellee

Mercy (¶ 56). Therefore, we conclude it was error to dismiss the claim against Ms.

Washington and appellee Mercy under the Civ.R. 12(B)(6) standard.

       {¶30} The trial court erred in dismissing the aiding and abetting discrimination

claim against Ms. Washington and appellee Mercy.
Stark County, Case No. 2013CA00181                                                     12


                   SEXUAL HARASSMENT/DISCRIMINATION AND

                            UNLAWFUL RETALIATION CLAIMS

      {¶31} Appellant argues the trial court erred in dismissing the individual named

defendants.

      {¶32} R.C. 4112.02(I) states it shall be an unlawful discriminatory practice:



              For any person to discriminate in any manner against any other

      person because that person has opposed any unlawful discriminatory

      practice defined in this section or because that person has made a

      charge, testified, assisted, or participated in any manner in any

      investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of

      the Revised Code.



      {¶33} R.C. 4112.01(A)(2) states the term "employer" as used in R.C. Chapter

4112 "includes the state, any political subdivision of the state, any person employing

four or more persons within the state, and any person acting directly or indirectly in the

interest of an employer."

      {¶34} Appellant argues the individual named defendants were acting on behalf

of and in the interest of appellee Mercy and therefore, they meet the definition of

"employer" under R.C. 4112.01(A)(2).

      {¶35} Based upon the facts in the amended complaint, the only "employer" who

made the decision to terminate appellant was Ms. Washington, Director of Human

Resources at the time. Although it was alleged that Mr. Christ, Ms. Kelly, and Ms.
Stark County, Case No. 2013CA00181                                                                13


Casler were aware of appellee Jones's complaint and were involved in meetings, the

decision to terminate appellant as averred in the amended complaint was Ms.

Washington's alone.

         {¶36} The unlawful retaliation claim centered on appellee Mercy's refusal to

provide him with a reference. The only allegation of retaliation was against appellee

Mercy.

         {¶37} The     trial      court   did   not      err     in   dismissing      the     sexual

harassment/discrimination claim against the individual named defendants with the

exception of Ms. Washington. The trial court did not err in dismissing the unlawful

retaliation claim against the individual named defendants.

         {¶38} Assignment of Error I is granted in part and denied in part. Claims of

aiding and abetting discrimination against appellee Mercy and Ms. Washington are

reinstated, along with the claim of sexual discrimination against Ms. Washington.

                                                II

         {¶39} Appellant claims the trial court erred in granting summary judgment to

appellees Mercy, its individual named employees, and Jones on the remaining claims:

aiding and abetting (Jones), sexual harassment (Jones/Mercy), spoliation (all), fraud

(all),   unlawful   retaliation    (Jones/Mercy),     civil    conspiracy   (all),   and    negligent

retention/supervision (Jones/Mercy).1

         {¶40} Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:

1
 As stated in the facts above, appellee Jones did not participate in the motion to
dismiss.
Stark County, Case No. 2013CA00181                                                   14




             Civ.R. 56(C)    provides that before summary judgment may be

      granted, it must be determined that (1) no genuine issue as to any

      material fact remains to be litigated, (2) the moving party is entitled to

      judgment as a matter of law, and (3) it appears from the evidence that

      reasonable minds can come to but one conclusion, and viewing such

      evidence most strongly in favor of the nonmoving party, that conclusion is

      adverse to the party against whom the motion for summary judgment is

      made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

      628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

      Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



      {¶41} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).

                   SEXUAL HARASSMENT/DISCRIMINATION CLAIM

      {¶42} Appellant argues there existed genuine issues of material fact regarding

his claim for sexual harassment/discrimination. In his amended complaint, appellant

alleged a direct violation of an unlawful discriminatory practice under R.C. 4112.01(A),

cited above. Appellant claimed disparate treatment because of his gender (¶ 80), the

reasons for his termination were pretextual and a sham (¶ 81), and the lack of
Stark County, Case No. 2013CA00181                                                    15


cooperation in complying with his subpoena vis-á-vis compliance with subpoena

requests "on behalf of current or former female employees" (¶ 82-83).

      {¶43} Appellant claimed he was discriminated against because he is a male and

was involved in sexual contact and terminated from employment, while appellee Jones,

a female, was involved in the same sexual contact, but was not terminated.

      {¶44} There appears to be two R.C. 4112.02 claims: (1) sexual harassment in

the creation of a hostile work environment, and (2) sexual discrimination.

      {¶45} As stated by this court in Jackson v. Saturn of Chapel Hill, Inc., 5th Dist.

Stark No. 2005 CA 00067, 2005-Ohio-5302, ¶ 17, in order to maintain a claim for sexual

harassment, a plaintiff must demonstrate:



             (1) that the employee was a member of a protected class, (2) that

      the employee was subjected to unwelcome sexual harassment in the form

      of sexual advances or requests for sexual favors, (3) that the harassment

      complained of was based on gender, and (4) that the employee's

      submission to the unwelcome advances was an express or implied

      condition for receiving job benefits or that the employee's refusal to submit

      to the supervisor's sexual demands resulted in a tangible job detriment.

      (Citations omitted.)



      {¶46} Appellant admitted to freely touching appellee Jones's breast, and

appellee Mercy acknowledged the sexual contact was consensual. A non-supervisory

employee such as appellee Jones lacked any ability to control appellant's employment.
Stark County, Case No. 2013CA00181                                                  16


The sexual harassment claim clearly fails. We find no genuine issue of material fact to

exist on a quid pro quo harassment claim against appellee Jones or other

employees/supervisors.

      {¶47} As stated by this court in Thompson v. Dover Elks, 5th Dist. Tuscarawas

No. 2002 AP 02 0016, 2002-Ohio-5610, ¶ 16, in order to establish a discrimination claim

under R.C. 4112.02(A), a plaintiff must prove:



             ***(1) that he was a member in a protected class; (2) that he was

      discharged from his job by the employer; (3) that he was qualified for the

      position; and (4) that he was replaced by a person who did not belong to

      the protected class. McDonnell Douglas Corp. v. Green (1973), 411 U.S.

      792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668. However, in cases involving

      reverse     gender     discrimination,     courts   have   modified    the

      McDonnell standard to enable plaintiffs who are members of a dominant

      group to prove a prima facie case of discrimination. To show reverse

      discrimination and to avoid a summary judgment, the plaintiff must

      establish a prima facie case by showing: (1) background circumstances

      supporting the suspicion that the defendant is the unusual employer who

      discriminates against the majority; and (2) that the employer treated

      employees who were similarly situated, but not members of the protected

      group, more favorably. Murray v. Thistledown Racing Club, Inc. (C.A.6,

      1985), 770 F.2d 63, 67.
Stark County, Case No. 2013CA00181                                                      17


      {¶48} Appellee Mercy argues appellant has not established that any female

employee who engaged in sexual contact with another employee was not terminated,

thereby failing to establish the second prong above. To establish "similarly situated," a

plaintiff must show "that the comparable employee is similar 'in all of the relevant

aspects.' "   Barry v. Noble Metal Processing, Inc., 276 Fed.Appx. 477, 480 (6th

Cir.2008), citing Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th

Cir.1998). As explained by appellee Mercy in its brief at 18:



              In Barry, the court went on to state, "[w]hile the precise aspects of

      employment that are relevant to determining whether the similarly situated

      requirement has been satisfied depend on the facts and circumstances of

      each case, this court has generally focused on whether the plaintiff and

      the comparable employee: (1) share the same supervisor; (2) are subject

      to the same standards; and (3) 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.' " Id. at

      480-481, quoting Ercegovich at 352 (internal quote marks omitted).



      {¶49} In her deposition at 68-69, 75, and 76-77, respectively, Ms. Washington

explained her decision to terminate appellant:



              Q. What else do you remember was said at the time?
Stark County, Case No. 2013CA00181                                                  18


            A. ***I remember Pete saying that the police were called, that Matt

     initially denied that he had done this to the police, and that he did

     eventually admit that he did it, that he did touch her breasts. And at that

     point I virtually called a halt to the meeting and said, We're done here.

            ***

            Q. And that he later said to the police that he did touch her, her

     breasts, correct?

            A. Yes.

            Q. And that Matt further said he was invited to do so, correct?

            A. Yes.

            Q. And Matt also told - - Christ also told you that Matt had said she

     had been seeking Vicoden (sic), did he not?

            A. I do remember that, yes.

            ***

            Q. Okay. So you're having this conversation. Did you ask if Matt

     had been asked to give a written statement?

            A. No. After - - after Pete told me that he admitted to touching her

     breasts, albeit by invitation, I did not - - my statement was, Well, we're

     done here. The employee has admitted that what they did - - what they

     did, that's inappropriate in our environment. We're done.

            ***
Stark County, Case No. 2013CA00181                                                    19


             Q. Okay. And you also - - I've been told by other eyewitness that

      consensual sexual activity that's off campus is not forbidden by the

      hospital; is that correct?

             ***

             A. Consensual sexual activity.

             Q. Between employees is not forbidden by the hospital.

             A. We would not be in a position to forbid that unless it impacts the

      hospital in some type of way. If it happens that it be - - I think when

      employees bring their personal problems into the workplace then whether

      it's on campus or off campus that makes - - they make it part of the

      hospital's problem by bringing it to the hospital administration.



      {¶50} Ms. Washington admitted that both appellant and appellee Jones had

drawn the hospital into their sexual contact encounter (depo. at 79), no action was taken

against the female employee, appellee Jones (depo. at 80), and a subsequent

investigation was not done (depo. at 81-82). Ms. Washington also admitted appellant's

termination occurred with the knowledge that appellant had admitted to consensual

touching (depo. at 87-89).         She characterized the reason for the termination to

appellant's lack of good judgment (depo. at 92-94) and "bringing it into the workplace"

(depo. at 94-95).   "Bringing it into the workplace" appears to equate to lodging a

complaint and "they have made their relationship my problem" (depo. at 94-95).

      {¶51} Also admitted in Ms. Washington's deposition are two facts that have

peripheral bearing on this issue. First, appellant had clocked out for the smoke break
Stark County, Case No. 2013CA00181                                                    20


and appellee Jones had not; and secondly, the activity occurred off the property of

appellee Mercy (depo. at 75-76, 105-106).

      {¶52} Appellant argues his discrimination claim should survive because he

proved disparate treatment of a similarly situated employee.      The similarly situated

employee is Julie Ann Findley, a housekeeping employee who as of result of a traffic

stop, was arrested on drug related charges and was subsequently found guilty of

disorderly conduct. See, Appellant's June 25, 2013 Motion for Summary Judgment at

pages 28-30.    Appellee Mercy was notified of the drug arrest by the Perry Police

Department because the drugs involved "marijuana, percocet, and nyproxin, without a

legal prescription" Id. at 28-29. Like appellant, Ms. Findley was charged with a criminal

offense, and appellee Mercy was concerned because of her access to drugs. So in Ms.

Washington's words, Ms. Findley's actions "brought it into the workplace." Ms. Findley's

criminal case, as appellant's, was resolved with a disorderly conduct plea, a non-status

criminal offense. Ms. Findley was never disciplined or terminated at the beginning or

end of her criminal case. In fact, a February 17, 2010 email sent by Mr. Christ to Ms.

Bresnahan, cited in appellant's motion at 29, indicated a disorderly conduct charge was

not a reason for termination:



             I was updating files we keep on reports we prepare. For info, she

      was charged on 7/16/2009. One count drug paraphernalia offense was

      reduced to disorderly conduct and was found guilty.             One count

      possession of drugs and that charge was dismissed. One count of driving

      on suspended operator license and that was dismissed.* * * We do not
Stark County, Case No. 2013CA00181                                                   21


      have employees that have been convicted of disorderly conduct.            I

      checked Kronos and she still works for us. We need to make note in her

      file that Security has case number 09-0359 in which she was arrested on

      drug charges in the event we have another problem with her.



      {¶53} Under de novo review, we find a genuine issue of material fact to exist on

the issue of discrimination under R.C. 4112.02(A), and the trial court erred in granting

summary judgment to appellee Mercy and dismissing the claim against Ms. Washington

as discussed above. However, there are no genuine issues of material fact on this

issue regarding appellee Jones and any other hospital employees, or on the issue of

aiding and abetting against appellee Jones.

      {¶54} Given appellee Mercy's concession that the sexual contact during

appellant's smoke break off property was consensual, there is a clear disparity of

treatment between appellant and appellee Jones. One can argue that the facts on their

own establish disparate treatment.

      {¶55} The trial court erred in granting summary judgment to appellee Mercy and

dismissing the claim against Ms. Washington on the discrimination claim.

                                 SPOLIATION CLAIM

      {¶56} The tort of spoliation was first recognized by the Supreme Court of Ohio in

Smith v. Howard Johnson Company, Inc., 67 Ohio St.3d 28, 29, 1993-Ohio-229:



             (1) A cause of action exists in tort for interference with or

      destruction of evidence; (2a) the elements of a claim for interference with
Stark County, Case No. 2013CA00181                                                        22


       or destruction of evidence are (1) pending or probable litigation involving

       the plaintiff, (2) knowledge on the part of defendant that litigation exists or

       is probable, (3) willful destruction of evidence by defendant designed to

       disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5)

       damages proximately caused by the defendant's acts; (2b) such a claim

       should be recognized between the parties to the primary action and

       against third parties; and (3) such a claim may be brought at the same

       time as the primary action.



       {¶57} In Allstate Insurance v. QED Consultants, Inc., 5th Dist. Knox No.

09CA14, 2009-Ohio-4896, ¶ 19, this court stated, "[t]he Ohio Supreme Court has not

extended its holding in Smith v. Howard Johnson, supra, to cases where the spoliation

claim asserted does not involve the willful destruction or alteration of physical evidence."

(Citations omitted.)

       {¶58} Appellant argues the spoliation occurred in relation to his criminal case.

       {¶59} Appellant argues appellee Mercy, incorrectly, intentionally or not,

responded to the criminal subpoena for "personnel and employment records." It is

undisputed that appellee Mercy did not send several documents concerning the 2009

incident involving appellee Jones and another coworker (Adam Harsh): MMC 00047,

MMC 00048, MMC 000212, MMC 000619, MMC 000227, MMC 000229, MMC 000231,

MMC 000232, MMC 000233, MMC 000239, MMC 000269, and MMC 000275

(Admission Nos. 9, 10, 16-22). See, Appellant's June 25, 2013 Motion for Summary

Judgment at page 32.
Stark County, Case No. 2013CA00181                                                    23


       {¶60} The gravamen of appellant's claim is not that the documents were

destroyed (the very argument itself specifies names and the contents of the

documents), but that appellee Mercy did not properly respond to the criminal

subpoenas. Appellant pled no contest to disorderly conduct, and does not cite to any

damages as a result of the negligence to answer the subpoenas. As indicated by the

Supreme Court of Ohio, any spoliation claim must be brought in the original case i.e.,

the criminal case.

       {¶61} Appellant also claims there are "obfuscated" documents that he was

unable to obtain: an email from Mr. Colosimo to Ms. Washington that she refers to in a

December 13, 2010 email to Mr. Colosimo, and a drafted reference letter by Ms. Casler

that was faxed to appellant on August 31, 2010. See, Appellant's June 25, 2013 Motion

for Summary Judgment at pages 41-42.

       {¶62} Ms. Casler now cannot recall the letter. Casler depo. at 22, 31. In his

motion for summary judgment on page 43, appellant argued the items were not

destroyed, but were found save the credibility issue raised by Ms. Casler's denial of the

reference letter:



              Had all of the documentation referenced in this section on

       spoliation been tendered instead of Defendants' repeated defiance and

       interference, Plaintiff would not have had to resort to extraordinary

       measures in the instant case or other means to secure such evidence in

       this case.    It would not have been necessary for Plaintiff to incur the

       expense of taking Adam Harsh's deposition. Additionally, the mere fact
Stark County, Case No. 2013CA00181                                                     24


       that Plaintiff had to expend any time in any part of any deposition to

       explore details of how any of the Defendants, both individual and

       corporate, maintained, culled, retained, and assembled documents, meant

       that Plaintiff incurred added expense that he otherwise should not have

       had to incur had these Defendants complied with their respective

       obligations under the subpoenas and/or discovery requests.



       {¶63} The trial court did not err in granting summary judgment to appellees on

the spoliation claim.

                                     FRAUD CLAIM

       {¶64} In Burr v. Stark County Board of Commissioners, 23 Ohio St.3d 69 (1986),

paragraph two of the syllabus, the Supreme Court of Ohio found the elements of fraud

to be as follows:



              (a) a representation or, where there is a duty to disclose,

       concealment of a fact, (b) which is material to the transaction at hand, (c)

       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, (d) with the intent of misleading another into relying upon it, (e)

       justifiable reliance upon the representation or concealment, and (f) a

       resulting injury proximately caused by the reliance.
Stark County, Case No. 2013CA00181                                                    25


      {¶65} The fraud claim centers on the responsiveness or non-responsiveness of

appellee Mercy and Ms. Washington to the criminal subpoenas.               In his amended

complaint, appellant alleged the following:



             126. When       responding       to   the   subpoena,   MMC   made   a

      representation of compliance with the subpoena. MMC's representation

      was false, with knowledge of its falsity, or with such utter disregard and

      recklessness as to whether it was true or false that MMC's knowledge may

      be inferred.

             128. Washington and MMC violated the duty to comply with the

      Subpoena under Ohio Law as well as under MMC Compliance Policy.

             129. Defendant Washington and MMC knew or should have known

      that responsive documents were located in the Personnel department, and

      failed to secure and produce them.

             130. Defendant Washington and MMC knew or should have known

      that responsive documents were located elsewhere at MMC, or in the

      custody of SODEXO, and failed to secure and produce them in response

      to the Subpoena.

             131. By failing to inform the parties in the criminal action that

      documents were being withheld or destroyed, MMC concealed factual

      information when MMC had a duty to speak.
Stark County, Case No. 2013CA00181                                                      26


       {¶66} Appellant argues appellee Mercy had a duty to disclose that the

responses to the subpoenas were deficient or qualified. As a result, the subpoenas

could have been reissued. Appellant's claimed harm is that he would have gone to trial

but instead, chose a good plea deal.

       {¶67} Appellant further alleges that Ms. Washington and Ms. Bresnahan, Human

Resources Manager or Interim Director/Director of Human Resources, only turned over

the "official file." We fail to see how conforming to the language of the subpoenas was

in any way fraudulent.

       {¶68} Appellant argues in response to a video request, investigation documents

were incomplete because no investigation reports, witness statements, security logs or

"any other" such documentation was provided. The investigation report was done by

the Canton Police Department and as the report indicates, "that material" was evaluated

by the Canton Police Prosecutor.

       {¶69} Appellant challenges the trial court's determination of "intent to defraud" by

citing the fact that the subpoenas were responded to according to the normal

operational procedures as testified to by Amy Heuer. The center of appellant's claim is

that appellee Mercy failed to disclose the 2009 incident involving appellee Jones and

Mr. Harsh. However, appellant knew about the previous sexual harassment complaint

made by appellee Jones.

       {¶70} Not only did there not exist genuine issues of material fact on intent, but

by appellant's own admission, he knew of the previous 2009 incident and therefore,

there was no justifiable reliance.
Stark County, Case No. 2013CA00181                                                    27


       {¶71} The subpoenas were only directed to appellee Mercy therefore, any fraud

claimed against any other named defendants was not warranted.

       {¶72} The trial court did not err in granting summary judgment to appellees on

the fraud claim.

                          UNLAWFUL RETALIATION CLAIM

       {¶73} As explained by our brethren from the Tenth District in Peterson v.

Buckeye Steel Casings, 133 Ohio App.3d 715, 727 (10th Dist.1999):



              To prove a claim of retaliation, a plaintiff must establish three

       elements: (1) that she engaged in protected activity, (2) that she was

       subjected to an adverse employment action, and (3) that a causal link

       exists between a protected activity and the adverse action.        Once a

       plaintiff successfully establishes a prima facie case, it is the defendant's

       burden to articulate a legitimate reason for its action. If the defendant

       meets its burden, the burden shifts back to the plaintiff to show that the

       articulated reason was a pretext.



       {¶74} Appellant argues as a result of his discrimination claims under R.C.

Chapter 4112, appellee Mercy refused to give him a reference. Appellant was officially

terminated via his "forced" resignation on August 30, 2010. No action pursuant to R.C.

4112.02 was commenced prior to this date.

       {¶75} Appellant argues because appellee Mercy knew the complaint was about

sexual contact, it could immediately determine appellant was engaged in a "protected
Stark County, Case No. 2013CA00181                                                     28


activity." However, a claim for sexual discrimination was not made until well after his

termination date of August 30, 2010 (appellant submitted a draft of a sexual

discrimination complaint to appellee Mercy on March 28, 2011). The issue regarding

the reference letter had long passed as a draft of the letter was faxed to appellant on

August 31, 2010 and a final reference was never given way in advance of March 28,

2011.

        {¶76} In his motion for summary judgment, appellant argued appellee Jones

retaliated against him for turning down her sexual favors. There was no evidence that

appellee Jones had the ability to fire or discipline appellant. Therefore, the trial court

properly granted appellee Jones summary judgment on this claim.

        {¶77} A remaining argument is whether appellant's termination was the result of

a belief that a sexual discrimination claim was going to be filed. As discussed above,

Ms. Washington stated appellant was terminated for lack of good judgment and bringing

the consensual sexual contact incident into the workplace.

        {¶78} The trial court did not err in granting summary judgment to appellee Mercy

on the unlawful retaliation claim.

                               CIVIL CONSPIRACY CLAIM

        {¶79} In his amended complaint, appellant claimed appellee Mercy and

SODEXO by their unlawful acts conspired maliciously, resulting in injury to appellant (¶

144).

        {¶80} A claim for civil conspiracy requires proof of "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." LeFort v. Century 21-Maitland Realty
Stark County, Case No. 2013CA00181                                                    29

Company, 32 Ohio St.3d 121, 126 (1987), citing Minarik v. Nagy, 8 Ohio App.2d 194,

196 (1963).

          {¶81} On July 8, 2013, appellant voluntarily dismissed SODEXO as a party.

Therefore, there can be no claim for conspiracy or "conspiring together" when only one

defendant remains.

          {¶82} The trial court did not err in granting summary judgment to appellees on

the civil conspiracy claim.

                     NEGLIGENT RETENTION/SUPERVISION CLAIM

          {¶83} The amended complaint claims appellee Mercy negligently retained

appellee Jones and failed to prudently investigate, discipline or discharge her (¶ 147-

150). No allegations were made against appellee Jones.

          {¶84} The elements of a negligent retention/supervision claim are: "(1) the

existence of an employment relationship; (2) the fellow employee's incompetence; (3)

the employer's actual or constructive knowledge of such incompetence; (4) the

employee's act or omission which caused the plaintiff's injuries; and (5) the employer's

negligence in hiring or retaining the employee as a proximate cause of the injury."

Zieber v. Heffelfinger, 5th Dist. Richland No. 08CA0042, 2009-Ohio-1227, ¶ 31;

Browning v. Ohio State Highway Patrol, 151 Ohio App.3d 798, 2003-Ohio-1108 (10th

Dist.).

          {¶85} The trial court's decision to grant summary judgment to appellee Mercy on

this claim centered around a finding of no proximate cause to appellant's injuries. The

gravamen of appellant's claim is that appellee Mercy took no action in disciplining

appellee Jones, accepted her allegations, and through gender stereotype, chose only to
Stark County, Case No. 2013CA00181                                                       30


terminate him. Further, appellee Mercy knew or should have known appellee Jones's

propensity for falsification based upon her previous 2009 incident and various anecdotal

reports as to appellee Jones's attitude.

       {¶86} In truth, Ms. Washington determined because appellant exhibited poor

judgment and the consensual sexual contact incident had been brought into workplace,

appellant should be terminated.        It is also clear that appellee Mercy and Ms.

Washington have taken the position that appellant's version is the truth.

       {¶87} What factors leading to appellee Mercy's failure to terminate appellee

Jones is unclear. However, a December 13, 2010 email between Ms. Washington and

Mr. Colosimo leads to the conclusion that because appellee Jones did not clock out for

her smoke break, she would be disciplined.

       {¶88} We find the facts argued in support of this claim are in fact viable in

appellant's R.C. 4112.02(A) discrimination claim. The crux of the lawsuit is appellant's

termination leading to a violation of R.C. 4112.02(A) and not that appellee Jones was

negligently supervised or retained.

       {¶89} Appellant argues appellee Mercy should have had 20/20 hindsight.

However, the pivotal point was that appellee Jones had initiated a criminal complaint,

not that she still had a job.

       {¶90} We conclude that although there can be more than one proximate cause

of appellant's injury, the supervision and retention of appellee Jones after the fact is not

one of them.

       {¶91} The trial court did not err in granting summary judgment to appellees

Mercy and Jones on the negligent retention/supervision claim.
Stark County, Case No. 2013CA00181                                                     31


       {¶92} Lastly, because appellee Jones was not involved in the motion to dismiss,

the trial court granted summary judgment to appellee Jones on the breach of contract

claim. There does not appear to be any allegations against appellee Jones on this

claim. We find the trial court did not err in granting summary judgment to appellee

Jones on the breach of contract claim.

       {¶93} Assignment of Error II is granted in part and denied in part. The trial court

erred in granting summary judgment to appellee Mercy on appellant's claim for sexual

discrimination.

       {¶94} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed in part and reversed in part.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




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