[Cite as Bentkowski v. Ohio Lottery Comm., 2016-Ohio-5222.]




DAVID A. BENTKOWSKI                                      Case No. 2014-00651

        Plaintiff                                        Judge Patrick M. McGrath

        v.                                               DECISION

OHIO LOTTERY COMMISSION

        Defendant



        {¶1} This cause came to be heard on a complaint brought by plaintiff,
David Bentkowski, for his remaining claim of retaliation against defendant, Ohio Lottery
Commission (OLC).1 The case proceeded to trial on the issues of liability and damages
on January 25-26, 2016, and post-trial briefs were simultaneously filed on March 21,
2016. The parties filed reply briefs on March 28, 2016.2
        {¶2} This matter arises from plaintiff’s termination from OLC. Prior to his position
at OLC, plaintiff served as mayor of Seven Hills, in Cuyahoga County, Ohio. In order to
take his position at OLC, plaintiff resigned from his role as mayor.                            He began his
employment with OLC on October 10, 2011 as an unclassified, at-will, and exempt
employee serving in the role of labor relations officer. As labor relations officer, he
served as the liaison between management and the union, and was responsible for
facilitating labor relations, holding disciplinary hearings, and representing management
in various labor matters. On November 13, 2012, plaintiff was terminated. Plaintiff
alleges that his termination was retaliation for opposing his supervisor, Elizabeth

        1Prior to trial, the court disposed of plaintiff’s additional claim of wrongful termination in violation of
public policy, which was based on the publication of several negative newspaper articles about him in the
Cleveland Plain Dealer.

       2A motion to quash the subpoena issued to non-party Ohio Public Employees Retirement System

(OPERS) filed on January 26, 2016 remains pending. As discussed on the record, the parties, with the
consent of the court, agreed to work together to obtain the relevant information from OPERS.
Accordingly, the motion is DENIED as moot.
Case No. 2014-00651                                  -2-                                        DECISION


Popadiuk’s (Popadiuk), allegedly discriminatory practices. Specifically, plaintiff points to
discriminatory actions against Bill Newsome (Newsome), Lora Watts (Watts), Notre
LaBeach (LaBeach), Sam Erby (Erby), Loretta Washington (Washington), Jim
Zimmerman (Zimmerman), and Giavonna Evans (Evans).3
        {¶3} R.C. 4112.02(I) provides that it is an unlawful discriminatory practice “[f]or
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.” Plaintiff may prove a retaliation claim through either direct or circumstantial
evidence that unlawful retaliation motivated defendant’s adverse employment decision.
Reid v. Plainsboro Partners, Ill, 10th Dist. Franklin No. 09AP-442, 2010-Ohio-4373,
¶ 55.
        {¶4} “To establish a prima facie case of retaliation under R.C. 4112.02(I), plaintiff
ha[s] to establish the following: (1) [he] engaged in protected activity; (2) [defendant]
knew of her participation in protected activity; (3) [defendant] engaged in retaliatory
conduct; and (4) a causal link exists between the protected activity and the adverse
action.” Nebozuk v. Abercrombie & Fitch Co., 10th Dist. Franklin No. 13AP-591, 2014-
Ohio-1600, ¶ 40. “The establishment of a prima facie case creates a presumption that
the employer unlawfully retaliated against the plaintiff.” Id.
        {¶5} 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 Corp. v. Green, 411 U.S. 792, 802 (1973). If defendant succeeds in
doing so, then the burden shifts back to plaintiff to demonstrate that defendant’s
proffered reason was not the true reason for the employment decision. Id.

        3Although     plaintiff attempts to include actions involving Evans as evidence of discrimination, the
court disallowed any testimony regarding Evans to be admitted in the case because the events occurred
after plaintiff’s termination from OLC.
Case No. 2014-00651                                -3-                                       DECISION


      {¶6} At the trial, plaintiff testified that he would tell Popadiuk that he thought her
actions were discriminatory and inappropriate.                   According to plaintiff, Popadiuk
described Newsome to him as a “big, scary black guy.”                       Plaintiff testified that he
subsequently hinted to Popadiuk that he had a lot of African-American friends hoping
that she would understand that she could not be racist in front of him. However, plaintiff
also concedes in his affidavit, which was admitted into evidence as Defendant’s
Exhibit A, that Newsome and Popadiuk were friends.4
      {¶7} Plaintiff further testified that Popadiuk stated that she wanted to fire Watts
“because she always looks wacked out on drugs” and that she was “ghetto” and “hood.”
Plaintiff was in charge of the disciplinary proceeding against Watts, an African-American
woman who had made over 300 personal phone calls in one month while at work, but
stated that Popadiuk was trying to bring multiple charges against Watts for what he
considered was really a single offense. Plaintiff testified that he responded by warning
Popadiuk that she should not “go there” and that she “can’t say stuff like that.” Watts
eventually resigned from her position in 2014, after plaintiff had already been
terminated, and after it was discovered that she had nude photos of her supervisor,
Erby, on her phone, which were taken at work.
      {¶8} With regard to Erby and Washington, who were Watts’ supervisors and also
African-American, plaintiff testified that Popadiuk told him that they were “stupid
managers” and that she wanted to go after them. Plaintiff also testified that Popadiuk
would bring up race in discussions about Erby and Washington to which plaintiff told her
that she was going to be sued. Erby resigned in 2014 following the incident involving
Watts, and Washington resigned at the end of 2014. Both resignations occurred after
plaintiff had been discharged from OLC.
      {¶9} Plaintiff also testified that Popadiuk discriminated against LaBeach by
saying that she was “worthless” and “too old and was black,” and wanting to get rid of

      4The   court notes that Newsome had left OLC ten months prior to plaintiff’s hiring.
Case No. 2014-00651                           -4-                                   DECISION


her. Plaintiff also testified that Popadiuk was trying to build a case against her and that
LaBeach began receiving poor performance reviews and write ups for what plaintiff
described as arbitrary. According to plaintiff, LaBeach was most notably disciplined for
colliding with an Amish buggy with her motor vehicle and destroying the buggy and
injuring the horse. Plaintiff testified that he was in charge of LaBeach’s discipline, which
resulted in a verbal reprimand. In addition to the verbal reprimand from the buggy
incident, LaBeach also had multiple issuances of discipline due to violations of work
rules and multiple traffic accidents. (Plaintiff’s Exh. 23). Eventually, LaBeach retired
from OLC.
       {¶10} Lastly, plaintiff testified that Popadiuk hated Zimmerman, a white male, and
discriminated against him because of his diabetes, a condition that plaintiff states is
considered a disability under R.C. 4112 although Zimmerman himself had never raised
a disability claim.   In April 2012, there was an incident during which Zimmerman
became visibly angry and agitated during a goals and objective meeting involving
plaintiff. Plaintiff testified that after the incident, Popadiuk indicated that she was going
use the incident to discipline Zimmerman. Plaintiff also stated that Popadiuk scoffed at
the idea that Zimmerman’s diabetes was affecting his work performance and that when
he mentioned that OLC had to make reasonable accommodations for Zimmerman’s
disability, Popadiuk became irritated.
       {¶11} Popadiuk’s testimony starkly contrasted plaintiff’s testimony. According to
Popadiuk, she never made any of the discriminatory remarks alleged by plaintiff nor did
she paper employees’ files to try to get them fired. She also testified that plaintiff never
conveyed to her that he thought anything she said was racist or discriminatory.
Furthermore, she testified that as a natural part of the human resources process for
making disciplinary decisions, race would be discussed, but not for the purpose of
taking discriminatory action. With regard to her relationship with plaintiff, Popadiuk
testified that plaintiff was exhausting and difficult to deal with. She testified that plaintiff
Case No. 2014-00651                          -5-                                 DECISION


would oppose and argue with her, often stating that he was a lawyer and that she
should listen to him for that reason.
       {¶12} Based upon the testimony, the court finds that plaintiff did not establish that
his actions were protected activity. “In order to engage in protected activity * * * the
employee must step outside his or her role of representing the company and either file
(or threaten to file) an action adverse to the employer * * *.” Evans v. D.E. Foxx &
Assocs., S.D.Ohio No. 11-261-HJW-JGW, 2013 WL 3867598 (July 25, 2013), citing
McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1486-87 (10th Cir.1996). Furthermore, a
“plaintiff’s expressions of concern or discomfort or frustration over her employer’s * * *
practices * * * do not amount to the requisite adversarial assertion of statutory rights.”
Id., citing Robinson v. Wal-Mart Stores, Inc., 341 F.Supp.2d 759, 763 (W.D.Mich. 2004).
In his role as labor relations officer of OLC, plaintiff was an integral part of employee
discipline. As a liaison between management and the union, a natural responsibility of
plaintiff would be to analyze both sides of an issue and play “devil’s advocate” as
plaintiff himself testified. Plaintiff’s statements mentioning his African-American friends,
“let’s not go there,” “you can’t say stuff like that,” redirecting discussions, suggesting
reduced sanctions, and stating that Popadiuk could not act a certain way because she
could get sued do not constitute protected activity as required for a retaliation claim.
       {¶13} The court also finds that even if the court construes plaintiff’s actions as
protected activity, plaintiff failed to establish that his alleged opposition was the but-for
cause of his termination.   “[T]o prevail on a retaliation claim, a plaintiff must show that
retaliation is a determinative factor—not just a motivating factor—in the employer’s
decision to take adverse employment action. Thus, the causation standard imposed in
retaliation cases (but-for) causation is a higher standard * * *.” Smith v. Ohio Dept. of
Pub. Safety, 2013-Ohio-4210, ¶ 59, 997 N.E.2d 597 (10th Dist.). Plaintiff himself stated
in his complaint and affidavit that the reason for his termination was for the bad media
coverage regarding his reporting of crimes committed against him. At trial, emails were
Case No. 2014-00651                           -6-                                   DECISION


introduced into evidence in which plaintiff warns against retaliation for his reporting of
crimes while he was mayor of Seven Hills.
       {¶14} Moreover, the primary conversations that plaintiff described in his
testimony during which he opposed Popadiuk’s alleged discriminatory behavior
occurred in January (Labeach), March (Watts, Erby, and Washington), and April
(Zimmerman) 2012.         Plaintiff was terminated approximately seven months later.
“[W]here some time elapses between the employer’s discovery of a protected activity
and the subsequent adverse employment action, the employee must produce other
evidence of retaliatory conduct to establish causality.” Aycox v. Columbus Bd. of Educ.,
10th Dist. Franklin No. 03AP-1285, 2005-Ohio-69, ¶ 21, citing Kipp v. Mo. Highway &
Transp. Comm’n., 280 F.3d 893, 897 (8th Cir.2002) (holding that an “interval of two
months between complaint and adverse action ‘so dilutes any inference of causation
that we are constrained to hold as a matter of law that the temporal connection could
not justify a finding in [plaintiff’s] favor on the matter of causal link.’” (Internal citations
omitted.)   In this case, plaintiff’s termination occurred seven months after the last
discussion involving plaintiff’s alleged protected activity.     Because of this significant
period of time and because plaintiff has shown no other evidence of retaliatory conduct
except for his prior allegations that the negative media coverage was the cause of his
termination, plaintiff’s retaliation claim fails. He has not shown by the preponderance of
the evidence that his actions constituted protected activity or that his actions opposing
Popadiuk’s alleged discriminatory conduct were the but-for cause of his termination.
       {¶15} Assuming, however, that plaintiff met his burden of establishing a prima
facie case of retaliation, the court still concludes that defendant has stated a legitimate,
non-discriminatory reason for plaintiff’s termination. Popadiuk testified that plaintiff was
not a good fit. She explained that plaintiff continually argued and debated with her and
was difficult to communicate with. Popadiuk also testified that even though plaintiff was
not in a legal position, he would mention that he was a lawyer and that she should listen
Case No. 2014-00651                          -7-                               DECISION


to him. She also stated that he would argue with her when she made changes to his
documents, stating that he was a lawyer. In order to show that this reason was merely
pretext for his termination, plaintiff testified that Popadiuk never gave him negative
feedback and that the only times he had any issues with her were when he would
approach her about her allegedly discriminatory conduct.             The court finds that
Popadiuk’s testimony is more reliable and representative of the actual events that
occurred between them, and also finds that plaintiff has not proved beyond a
preponderance of the evidence that Popadiuk’s reasons for terminating plaintiff was
merely pretext. Therefore, plaintiff’s claim fails on this ground as well.
       {¶16} Based on the foregoing, the court concludes that plaintiff has failed to
prove his claim of retaliation by a preponderance of the evidence. The court finds that
plaintiff was terminated for reasons other than retaliation for opposing Popadiuk’s
alleged discriminatory conduct. Accordingly, judgment shall be rendered in favor of
defendant.




                                                   PATRICK M. MCGRATH
                                                   Judge
[Cite as Bentkowski v. Ohio Lottery Comm., 2016-Ohio-5222.]




DAVID A. BENTKOWSKI                                  Case No. 2014-00651

       Plaintiff                                     Judge Patrick M. McGrath

       v.                                            JUDGMENT ENTRY

OHIO LOTTERY COMMISSION

       Defendant



        {¶17} This case was tried to the court on the issues of liability and damages. The
court has considered the evidence and, for the reasons set forth in the decision filed
concurrently herewith, judgment is rendered in favor of defendant. Court costs are
assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment
and its date of entry upon the journal.




                                                       PATRICK M. MCGRATH
                                                       Judge

cc:
Brent L. English                                     Randall W. Knutti
The 820 Building                                     Assistant Attorney General
820 West Superior Avenue, 9th Floor                  150 East Gay Street, 18th Floor
Cleveland, Ohio 44113-1818                           Columbus, Ohio 43215-3130

Filed June 22, 2016
Sent to S.C. Reporter 8/3/16
