[Cite as Harris v. OHNH EMP, L.L.C., 2015-Ohio-3212.]


STATE OF OHIO                  )                        IN THE COURT OF APPEALS
                               )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT               )

GERALD A. HARRIS                                        C.A. No.   27455

       Appellant

       v.                                               APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
OHNH EMP, LLC dba WYANT WOODS                           COURT OF COMMON PLEAS
CARE CENTER                                             COUNTY OF SUMMIT, OHIO
                                                        CASE No.   CV 2012-10-5831
       Appellee

                               DECISION AND JOURNAL ENTRY

Dated: August 12, 2015



       MOORE, Judge.

       {¶1}    Plaintiff-Appellant Gerald Harris appeals from the decision of the Summit County

Court of Common Pleas granting summary judgment to Defendant-Appellee OHNH EMP, LLC

dba Wyant Woods Care Center (“Wyant Woods”) on Mr. Harris’ complaint. We affirm in part

and reverse in part.

                                                   I.

       {¶2}    Wyant Woods is a skilled nursing and Alzheimer’s special care facility. Mr.

Harris began working there in December 2011, as the Laundry/Housekeeping Supervisor. This

was a non-union position. Mr. Harris was paid a salary of $1,760.00 on a biweekly basis, which

amounted to $22.00 per hour based on a 40-hour work week. While Mr. Harris often worked 45

to 60 hours a week, he was not paid overtime, as his position was labeled as exempt.

       {¶3}    Mr. Harris was in charge of both the laundry and housekeeping divisions of

Wyant Woods, however, he also was a “working supervisor[,]” meaning that he sometimes was
                                                   2


required to help with the manual labor within the departments he managed. The parties dispute

how much of Mr. Harris’ employment was devoted to manual labor.

        {¶4}    When he began his employment with Wyant Woods, the cleanliness of the facility

was an ongoing issue of concern. Mr. Harris acknowledged that cleanliness issues continued

throughout the course of his employment. Judy Dennis, the administrator and executive director

of the facility, indicated that it was a goal of the facility to have the floors stripped and refinished

over the course of 6 to 8 months. Mr. Harris maintained that there were not enough floor

technicians to complete the project.

        {¶5}    Even though there were still issues with the cleanliness of the facility, Mr. Harris’

90-day performance evaluation was positive. Ms. Dennis indicated that “[Mr. Harris] took a

very challenging job and has done * * * [w]ell with supervising his staff and making

accountability.” Additionally, the evaluation recommended Mr. Harris’ continued employment.

        {¶6}    On April 4, 2012, Mr. Harris slipped and fell while assisting another employee

with stripping the floor. He sustained injuries to his back, neck, and wrist and filed a workers’

compensation claim as a result. Mr. Harris was off work on total disability from April 5, 2012

to April 6, 2012. When he returned to work he did so with restrictions. Specifically, Mr. Harris

was not supposed to kneel, squat, use ladders, engage in repetitive motions, or lift items over 20

pounds. Mr. Harris believed he was permitted to run the floor machines, fold clothes, mop

floors, empty the trash, vacuum, monitor employees, make his rounds, and do paperwork. He

indicated he was restricted from doing “heavy work.”             When Debra Snyder, the Human

Resources Manager, found out that Mr. Harris was running the floor machine following his

accident, she developed a list of transitional duties that he could do under his work restrictions;
                                                 3


using the floor machine was not included. Mr. Harris signed the paperwork on May 25, 2012,

detailing the transitional duties he could perform.

       {¶7}     On June 8, 2012, Mr. Harris was called into Ms. Snyder’s office. Also present

was Judy Dennis, the administrator of Wyant Woods and Mr. Harris’ direct supervisor. Ms.

Dennis told Mr. Harris that her supervisor was not happy with the progress being made on the

cleanliness of the building and told him that Wyant Woods had to let him go.

       {¶8}     Mr. Harris filed a three-count complaint in October 2012 against Wyant Woods

alleging that it retaliated against him for pursing a workers’ compensation claim in violation of

R.C. 4123.90, that it had violated R.C. 4111.03 by failing to pay him overtime, and that it had

violated R.C. 4111.13 by retaliating against him for making a complaint about its failure to pay

him overtime.

       {¶9}     Wyant Woods filed a motion for summary judgment asserting that it was entitled

to judgment as a matter of law because Mr. Harris was terminated for performance reasons, that

he had not complained that he had not been paid overtime, and that he was an exempt employee

not entitled to be paid overtime. Mr. Harris opposed the motion. The trial court ruled in favor of

Wyant Woods concluding that, while Mr. Harris had established a prima facie case of workers’

compensation retaliation, Wyant Woods set forth a legitimate non-retaliatory reason for

discharge, and Mr. Harris had failed to demonstrate that Wyant Woods’ legitimate reason was

pretextual. With respect to overtime compensation, the trial court found that Mr. Harris was an

exempt employee not entitled to overtime. In so finding, the trial court concluded that Mr.

Harris’ claim of retaliatory discharge for complaining about Wyant Woods’ failure to pay

overtime was moot.

       {¶10} Mr. Harris has appealed, raising three assignments of error for our review.
                                                4


                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
       FAVOR OF WYANT WOODS ON [MR.] HARRIS’ CLAIM FOR
       WORKER[S’] COMPENSATION RETALIATION IN VIOLATION OF R.C. []
       4123.90 BECAUSE A QUESTION OF FACT REMAINS AS TO WHETHER
       WYANT WOODS’ PROFFERED BUSINESS REASON FOR [MR.] HARRIS’
       TERMINATION WAS PRETEXT TO HIS WORKER[S’] COMPENSATION
       CLAIM AND HIS WORK RELATED INJURY.

       {¶11} Mr. Harris asserts in his first assignment of error that the trial court erred in

granting summary judgment to Wyant Woods on his claim for workers’ compensation retaliation

in violation of R.C. 4123.90. Specifically, Mr. Harris argues that a dispute of fact remains with

respect to whether Wyant Woods’ proffered reason for terminating him was a pretext. Wyant

Woods maintains that Mr. Harris failed to establish a prima facie case of R.C. 4123.90 violation,

and, even if he did, there is no dispute of fact that he was terminated for legitimate business

reasons.

       {¶12}    In reviewing a trial court’s ruling on a motion for summary judgment, this Court

applies the same standard as the trial court, viewing the facts of the case in the light most

favorable to the non-moving party and resolving any doubt in favor of the non-moving party.

Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983). Pursuant to Civ.R. 56(C),

summary judgment is proper if:

       (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 party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party bears the initial

burden of informing the trial court of the basis for the motion and pointing to parts of the record
                                                 5


that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280,

292-93 (1996). Once this burden is satisfied, the non-moving party bears the burden of offering

specific facts to show a genuine issue for trial. Id. at 293; Civ.R. 56(E).

       {¶13} R.C. 4123.90 provides in relevant part that, “[n]o employer shall discharge,

demote, reassign, or take any punitive action against any employee because the employee filed a

claim or instituted, pursued or testified in any proceedings under the workers’ compensation act

for an injury or occupational disease which occurred in the course of and arising out of his

employment with that employer.”

       {¶14} “Courts analyze retaliatory-discharge claims under a burden-shifting framework,

requiring the employee to initially set forth a prima facie case by showing the existence of an on-

the-job injury that resulted in a workers’ compensation claim and a causal connection between

the claim and the employee’s termination.” Rivers v. Cashland, 9th Dist. Summit No. 26373,

2013-Ohio-1225, ¶ 13, citing Scalia v. Aldi, Inc., 9th Dist. Summit No. 25436, 2011-Ohio-6596,

¶ 14. A plaintiff can only prevail on his or her claim under R.C. 4123.90 if he or she alleges and

proves that he or she was fired not because of his or her job-related injuries, but because of his or

her pursuit of workers’ compensation benefits. Doss v. Hilltop Rental Co., 1st Dist. Hamilton

No. C-030129, 2003-Ohio-5259, ¶ 34; see also White v. Mt. Carmel Med. Ctr., 150 Ohio App.3d

316, 2002-Ohio-6446, ¶ 36 (10th Dist.) (“R.C. 4123.90 does not prevent an employer from

discharging an employee who is unable to perform his or her duties. Employees who have filed

for workers’ compensation benefits may be discharged for just and lawful reasons. The statute

protects only against termination in direct response to the filing or pursuit of a workers’

compensation claim.”) (Internal quotations and citation omitted.). “The prima facie case in

claims under R.C. 4123.90 does not present an onerous burden for plaintiffs; it is, indeed, easily
                                                  6


met.” (Internal quotations omitted.) Scalia at ¶ 14. “The inference of retaliatory motive may be

drawn from the surrounding circumstances, including the timing of the discharge relative to the

protected conduct, whether punitive action was directed toward the employee as a result of the

claim, a hostile attitude[ ] toward the employee once the claim was filed, disparate treatment of

the employee relative to others, and requests not to pursue a claim.”           (Internal quotations

omitted.) Id. “Once the plaintiff establishes each element of the prima facie case, the burden

shifts to the employer to articulate a legitimate, nondiscriminatory reason for terminating the

employee.” Rivers at ¶ 13, quoting Scalia at ¶ 14. “If the employer does so, the burden shifts

back to the plaintiff to demonstrate that the reason offered for the termination is a pretext for

retaliation.” Rivers at ¶ 13, quoting Scalia at ¶ 14.

       {¶15} To create a question of fact with respect to pretext, the plaintiff must demonstrate

that the defendant’s proffered reason for firing the plaintiff “(1) had no basis in fact, (2) did not

actually motivate [the] discharge, or (3) was insufficient to motivate [the] discharge.” King v.

Jewish Home, 178 Ohio App.3d 387, 2008-Ohio-4724, ¶ 9 (1st Dist.); see also Thompson v.

Merriman CCRC, Inc., 9th Dist. Summit No. 23229, 2006-Ohio-6008, ¶ 23 (applying the

foregoing in the context of a R.C. 3721.24 action); Dukes v. Associated Materials, L.L.C., 9th

Dist. Summit No. 27091, 2014-Ohio-4322, ¶ 21 (applying the foregoing in the context of a R.C.

4112.02 action).

       The first type of showing consists of evidence that the proffered bases for the
       plaintiff’s discharge never happened and are thus factually false. The third
       showing ordinarily consists of evidence that other employees not in the protected
       class were not fired although they engaged in substantially identical conduct to
       that which the employer contends motivated its discharge of the plaintiff. These
       two types of rebuttals are direct attacks on the credibility of the employer’s
       proffered motivation for firing [the] plaintiff and, if shown, provide an evidentiary
       basis for what the Supreme Court has termed a suspicion of mendacity. In the
       second type of rebuttal, the plaintiff admits that such conduct could motivate
       dismissal. Thus, the plaintiff indirectly attacks the credibility of the proffered
                                               7


       explanation by showing, through the sheer weight of circumstantial evidence, that
       an illegal motivation was more likely than the explanation offered by the
       defendant.

Thompson at ¶ 23.

       {¶16} “Factors taken into consideration include such punitive action as bad performance

reports surfacing immediately after a workers’ compensation claim was filed, the length of time

between the filing of a claim and discharge, changes in salary level, hostile attitudes emerging,

and whether legitimate reasons exist for the discharge.” (Quotations and citations omitted.)

Herron v. DTJ Ents., Inc., 9th Dist. Summit No. 22796, 2006-Ohio-1040, ¶ 19.

       {¶17} The trial court concluded that Mr. Harris had established a prima facie case of

workers’ compensation retaliation, that Wyant Woods had articulated a legitimate non-

discriminatory reason for terminating Mr. Harris, but that Mr. Harris had failed to establish the

existence of a genuine issue of material fact with respect to whether Wyant Woods’ reason was

actually a pretext. Wyant Woods contests that Mr. Harris met his prima facie case and maintains

that its basis for terminating Mr. Harris was not a pretext. It does not appear that Mr. Harris

challenges on appeal the trial court’s finding that Wyant Woods set forth a legitimate non-

discriminatory reason for terminating him.

       {¶18} The parties do not appear to dispute that Mr. Harris provided evidence that he

suffered an on-the-job injury that resulted in the filing of a workers’ compensation claim on or

about April 4, 2012. Instead, Wyant Woods disputes the existence of a causal connection

between Mr. Harris’ filing of a workers’ compensation claim and his termination and whether

Mr. Harris can establish that Wyant Woods’ articulated reason for terminating Mr. Harris, i.e.

poor performance and failure to meet deadlines, was a pretext.
                                                8


       {¶19} A little over two months passed between the filing of Mr. Harris’ workers’

compensation claim and his termination. Such temporal proximity is not sufficiently close in

and of itself to establish causation. See Mangino v. W. Res. Fin. Corp., 9th Dist. Wayne No. 11-

CA-0050, 2012-Ohio-3874, ¶ 19-20. It is true that Mr. Harris was terminated shortly after he

was given his transitional work duties on May 25, 2012, and that that paperwork limited what

Mr. Harris could do with respect to manual labor. Mr. Harris maintains that his termination

close in time to the issuance of that document evidences causation. We are not convinced.

While the temporal proximity might lead to an inference that Wyant Woods terminated Mr.

Harris for being unable to perform manual labor, such as running the floor machines, we fail to

see how it leads to an inference that Mr. Harris was terminated for filing a workers’

compensation claim. See Doss, 2003-Ohio-5259, at ¶ 34.

       {¶20} Thus, Mr. Harris was required to present additional evidence to establish a causal

connection. See Mangino at ¶ 19-20. Mr. Harris presented evidence that Wyant Woods failed to

follow its progressive disciplinary policy guidelines in terminating him. Further, Mr. Harris

presented evidence that he received negative reviews and criticism following his accident, that he

had not received prior to his accident. He testified during his deposition that, prior to his

accident, he did not receive any complaints about the quality of his work.              While he

acknowledged that the cleanliness of the facility was an issue before he started and continued to

be an issue during his employment, he stated that he “was making progress, considerable

progress[.]” He “was getting accolades from the administrator and all the employees on how

good the building looked, it never looked that good in years.” As noted above, Mr. Harris

received a very positive 90-day review at the end of February 2012 that acknowledged that Mr.

Harris took on a challenging job, indicated he was meeting expectations, and recommended his
                                               9


continued employment. According to Mr. Harris, it was only after his injury that he began

receiving complaints from about his performance.      In April 2012, after his injury, Denver

Fawcett, the Regional Facilities Manager who conducted an annual mock survey and quarterly

audits at Wyant Woods, began to complain to Mr. Harris that he was not working fast enough.

Additionally, Ms. Dennis issued some memos in April 2012 after Mr. Harris’ injury that pointed

out areas that he needed to provide reminders and training to his staff. While Ms. Dennis

indicated that she did not believe these memos were disciplinary in nature, she did see them as

“performance review[s], [] because [they were] saying you’re not following what you need to

do.”   Further, Ms. Dennis’ notes from May 2012 indicated that Mr. Harris had not completed

certain projects on time and that the date to complete the project was being extended until June

12, 2012. Finally, on June 7, 2012, Mr. Harris’ departments received negative reviews in several

areas during an audit.

       {¶21} The trial court acknowledged the foregoing negative reviews and performance

evaluations of Mr. Harris, but improperly found that he was receiving similar negative feedback

throughout the course of his employment. While there were negative comments concerning Mr.

Harris’ departments on the January 2012 mock survey, and there were additional joint memos

issued by Ms. Dennis and Mr. Harris in early February 3, 2012 about areas of concern, the trial

court failed to acknowledge that Mr. Harris’ 90-day evaluation at the end of February 2012, was

overwhelmingly positive. It is true that Ms. Snyder averred in her affidavit that management

personnel had “addressed with Mr. Harris their concerns about his work performance throughout

his employment[,]” and Ms. Dennis averred that she “continually” brought performance related

issues to Mr. Harris’ attention. Nonetheless, Mr. Harris denied the same during his deposition.

He maintained that no one expressed any concerns to him about his performance until after his
                                               10


injury. Neither the trial court nor Wyant Woods has pointed to any documents or specific

incidents related to Mr. Harris’ performance that occurred between the positive February 2012

review and his injury in April 2012. Accordingly, if the evidence is viewed in a light most

favorable to Mr. Harris, there does appear to be evidence that the amount of negative feedback

Mr. Harris received, at the very least, increased following his injury and filing of his workers’

compensation claim.

       {¶22} Additionally, Mr. Harris submitted his own affidavit averring that on April 19,

2012, a physician ordered that Mr. Harris undergo an MRI; however, Wyant Woods opposed that

order. Mr. Harris also testified that he was absent from work June 7, 2012, the day before his

termination, receiving treatment for muscle spasms related to his injury. Finally, Mr. Harris

indicated that it was approximately a week before his termination that he retained an attorney to

represent him. Thus, there was also some evidence from which one could infer a connection

between Mr. Harris’ pursuit of workers’ compensation benefits and his termination.

       {¶23} Finally, there was evidence that another similarly situated employee, Ray Cooper,

the maintenance supervisor, received disparate treatment. There was evidence that, prior to Mr.

Harris working at Wyant Woods, the position of laundry/housekeeping supervisor and

maintenance supervisor was combined into a single position. When Mr. Harris started, that

changed, and Mr. Harris was hired as the laundry/housekeeping supervisor and Mr. Cooper was

hired as the maintenance supervisor. There was evidence that both Ms. Dennis and Mr. Harris

considered Mr. Cooper’s position to be equal to that of Mr. Harris. Ms. Dennis testified that Mr.

Cooper had not suffered a workplace injury and thus, had not filed for workers’ compensation.

Additionally, Ms. Dennis acknowledged that Mr. Cooper had not met all his deadlines, and some
                                                11


of these failures may have prevented Mr. Harris from completing some of his projects. Ms.

Dennis also agreed that, despite the foregoing, Mr. Cooper was not terminated.

       {¶24} Wyant Woods argues that Mr. Cooper was not similarly situated to Mr. Harris

because Mr. Harris failed to prove the absence of mitigating or differentiating circumstances

surrounding their respective work performance. See Jones v. MTD Consumer Group, Inc., 9th

Dist. Medina No. 13CA0093-M, 2015-Ohio-1878, ¶ 29 (discussing what is required to be

similarly situated in the context of a reverse discrimination case). Even assuming this to be true,

we are mindful that this matter is only at the stage of summary judgment, and the issue before us

is whether there remains a genuine issue of material fact. Given the statements in the record

discussing Mr. Cooper as being equal to Mr. Harris, and in light of the other evidence of a causal

connection, we cannot say that Wyant Woods’ argument is dispositive of the issue.         The trial

court did not err in concluding that Mr. Harris established a prima facie case.

       {¶25} As Mr. Harris has not challenged on appeal the trial court’s finding that Wyant

Woods set forth a legitimate business reason for terminating Mr. Harris, we will forego detailing

the evidence of Mr. Harris’ poor performance or failure to meet deadlines.            Instead, the

remainder of our focus will center on whether there remains a genuine issue of material fact as to

whether Wyant Woods’ stated reason for terminating Mr. Harris was a mere pretext.

       {¶26} Much of the evidence we have discussed above also supports the conclusion that

there remains an issue of fact with respect to whether Wyant Woods actually terminated Mr.

Harris for poor work performance. Viewed in a light most favorable to Mr. Harris there are

several things that trouble this Court about Wyant Woods’ claim, and the trial court’s conclusion,

that Wyant Woods terminated Mr. Harris for poor work performance and the failure to meet

deadlines. Wyant Woods maintains that Mr. Harris had a history of unsatisfactory performance
                                               12


throughout his employment; yet, there is nothing in the record documenting any other discipline

of Mr. Harris. Moreover, the spaces on his termination sheet to list prior discipline were left

blank, despite the fact that Ms. Dennis claimed that she and others had provided Mr. Harris with

coaching on multiple occasions and at least one verbal warning.           The termination form

specifically indicated that verbal discipline should be noted. And while it is true, as the trial

court pointed out, that the January 2012 mock survey did point to issues in Mr. Harris’

departments, it is difficult to infer that those problems would have been unresolved when Mr.

Harris’ subsequent 90-day evaluation was extremely positive. We note that the trial court, in its

discussion concerning pretext, failed to acknowledge Mr. Harris’ positive 90-day evaluation and

consider how that could effect the analysis of the issue. There was evidence that the feedback

about Mr. Harris’ performance became increasingly negative only after his injury, that Wyant

Woods refused to approve an MRI for Mr. Harris, and that Mr. Harris was terminated the day

after he was absent due to receiving treatment for his injury and shortly after retaining an

attorney. As noted above, neither the trial court nor Wyant Woods has pointed to any documents

or specific incidents related to Mr. Harris’ performance that occurred between the positive

February 2012 review and his injury in April 2012.     Additionally, there was evidence that Mr.

Cooper, who was a supervisor like Mr. Harris but did not suffer a workplace injury, failed to

meet deadlines and was nonetheless not terminated. Given all of the evidence, and this Court’s

duty to view it in a light most favorable to Mr. Harris, we conclude an issue of fact remains with

respect to whether Wyant Woods’ stated reason for terminating Mr. Harris was a pretext.

       {¶27} Mr. Harris’ first assignment of error is sustained.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
       FAVOR OF WYANT WOODS ON [MR.] HARRIS’ CLAIM FOR OVERTIME
                                                 13


          COMPENSATION PURSUANT TO OHIO R.C. [] 4111.03 BECAUSE BASED
          ON THE EVIDENCE IN THE RECORD, THERE IS A GENUINE ISSUE OF
          MATERIAL FACT AS TO WHETHER [MR.] HARRIS WAS AN EXEMPT
          EMPLOYEE.

          {¶28} Mr. Harris asserts in his second assignment of error that the trial court erred in

granting summary judgment to Wyant Woods on his claim for a violation of R.C. 4111.03

because an issue of fact remains with respect to whether he was an exempt employee. We do not

agree.

          {¶29} R.C. 4111.03(A) provides that “[a]n employer shall pay an employee for overtime

at a wage rate of one and one-half times the employee’s wage rate for hours worked in excess of

forty hours in one workweek, in the manner and methods provided in and subject to the

exemptions of section 7 and section 13 of the ‘Fair Labor Standards Act of 1938,’ 52 Stat. 1060,

29 U.S.C.A. 207, 213, as amended.” “It is well settled that exemptions from the Fair Labor

Standards Act are to be narrowly construed.” Weisfeld v. PASCO, Inc., 9th Dist. Summit No.

26416, 2013-Ohio-1528, ¶ 22, quoting Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295

(1959).

          {¶30} 29 U.S.C. 213 provides that the overtime compensation provided for in 29 U.S.C.

207 does not have to be provided to certain exempt employees, including “any employee

employed in a bona fide executive, administrative, or professional capacity * * *.” 29 U.S.C.

213(a)(1). Additionally, R.C. 4111.03(D)(3)(d) states that the term “employee” does not include

an individual “employed in a bona fide executive, administrative or professional capacity * * * .”

          {¶31} The trial court concluded that there was no genuine dispute of material fact that

Mr. Harris was an exempt employee because he was employed in an executive and

administrative capacity. As we agree that Mr. Harris was employed in an executive capacity,
                                                 14


and was therefore an exempt employee, we see no reason to examine whether he also met the

criteria for being employed in an administrative capacity.

        {¶32} The Code of Federal regulations provides that, an “employee employed in a bona

fide executive capacity” is an employee who is

        (1) Compensated on a salary basis at a rate of not less than $455 per week (or
        $380 per week, if employed in American Samoa by employers other than the
        Federal Government), exclusive of board, lodging or other facilities;

        (2) Whose primary duty is management of the enterprise in which the employee is
        employed or of a customarily recognized department or subdivision thereof;

        (3) Who customarily and regularly directs the work of two or more other
        employees; and

        (4) Who has the authority to hire or fire other employees or whose suggestions
        and recommendations as to the hiring, firing, advancement, promotion or any
        other change of status of other employees are given particular weight.

29 C.F.R. 541.100(a).

        {¶33} The parties dispute whether Mr. Harris’ primary duty was management. See 29

C.F.R. 541.100(a)(2). Accordingly, we will limit our focus to the law and evidence related to

that area.

        Generally, “management” includes, but is not limited to, activities such as
        interviewing, selecting, and training of employees; setting and adjusting their
        rates of pay and hours of work; directing the work of employees; maintaining
        production or sales records for use in supervision or control; appraising
        employees’ productivity and efficiency for the purpose of recommending
        promotions or other changes in status; handling employee complaints and
        grievances; disciplining employees; planning the work; determining the
        techniques to be used; apportioning the work among the employees; determining
        the type of materials, supplies, machinery, equipment or tools to be used or
        merchandise to be bought, stocked and sold; controlling the flow and distribution
        of materials or merchandise and supplies; providing for the safety and security of
        the employees or the property; planning and controlling the budget; and
        monitoring or implementing legal compliance measures.

29 C.F.R. 541.102.
                                                   15


       {¶34} 29 C.F.R. 541.106 notes that “[c]oncurrent performance of exempt and

nonexempt work does not disqualify an employee from the executive exemption if the

requirements of [] 541.100 are otherwise met.” “Whether an employee meets the requirements

of [] 541.100 when the employee performs concurrent duties is determined on a case-by-case

basis and based on the factors set forth in [] 541.700.” Id. 29 C.F.R. 541.700(a) states that,

“[t]he term ‘primary duty’ means the principal, main, major or most important duty that the

employee performs. Determination of an employee’s primary duty must be based on all the facts

in a particular case, with the major emphasis on the character of the employee’s job as a whole.”

Factors considered in determining what the primary duty of the employee is include, “the relative

importance of the exempt duties as compared with other types of duties; the amount of time

spent performing exempt work; the employee’s relative freedom from direct supervision; and the

relationship between the employee’s salary and the wages paid to other employees for the kind

of nonexempt work performed by the employee.” Id. The Sixth Circuit has noted that “courts

cannot rely upon the plaintiff’s or the employer’s description of the plaintiff’s position or

authority; instead we must look at the plaintiff's actual duties to determine whether she qualifies

for the executive exemption.” (Emphasis omitted.) (Internal quotations and citation omitted.)

Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 503 (6th Cir.2007). And while Wyant

Woods has the burden of establishing every element of the executive exemption test set forth in

29 C.F.R. 541.100(a), the burden applies to every element, “not every factor under every

element.” Id. at 505, fn. 6. “At issue in this case is the primary duty element and [Wyant

Woods] needs to carry its burden only on the primary-duty element as a whole, not on each

individual factor relevant to that inquiry.” Id.
                                                 16


       {¶35} While the percentage of time performing exempt work can “be a useful guide” in

determining whether exempt work is the primary duty, “[t]ime alone, however, is not the sole

test * * *.” 29 C.F.R. 541.700(b). “Employees who do not spend more than 50 percent of their

time performing exempt duties may nonetheless meet the primary duty requirement if the other

factors support such a conclusion.” Id.

       Thus, for example, assistant managers in a retail establishment who perform
       exempt executive work such as supervising and directing the work of other
       employees, ordering merchandise, managing the budget and authorizing payment
       of bills may have management as their primary duty even if the assistant
       managers spend more than 50 percent of the time performing nonexempt work
       such as running the cash register. However, if such assistant managers are closely
       supervised and earn little more than the nonexempt employees, the assistant
       managers generally would not satisfy the primary duty requirement.

29 C.F.R. 541.700(c).

       {¶36} Based upon the record before us, there is no dispute of fact that at least some of

Mr. Harris’ duties were managerial as that term is defined in 29 C.F.R. 541.102.

       {¶37} When Mr. Harris came in each day, he first made sure everyone who was

scheduled to be at work was present. If someone was not there, he would call and try to get

someone else to fill in, and if he did not succeed in doing so, he would fill in for that person. Mr.

Harris was also responsible for keeping track of the attendance of his employees and

documenting it in the employees’ personnel files as well as scheduling the employees in his

department. While employees would go to Ms. Snyder to find out how much time they had

available to take off from work, Mr. Harris would approve the application for his employees to

take time off.

       {¶38} Mr. Harris was additionally responsible for disciplining his employees for various

reasons.   He also made rounds at the facility to make sure that his employees were doing the

work that they were assigned and to check on the condition of the rooms and common areas. He
                                                17


was responsible for ordering supplies and deciding what to order based upon what was needed.

On occasion, Mr. Harris addressed problems his employees were having that they brought to his

attention. He also conducted in-services with his staff about various topics related to laundry and

housekeeping. If the equipment broke down, the employee would report it to him and he would

contact the vendor to get a replacement. Finally, Mr. Harris was responsible for conducting

periodic evaluations of his staff and going over the reviews with them.

         {¶39} While Mr. Harris also performed non-managerial tasks, including assisting with

cleaning the facility, the above discussed tasks have managerial components. See 29 C.F.R.

541.102. Mr. Harris acknowledged during his deposition that he performed the tasks discussed

above.

         {¶40} Mr. Harris asserts on appeal that 75 percent of his time was devoted to non-

managerial tasks.1 For purposes of summary judgment, we will accept Mr. Harris’ claim as

being true. While time is certainly a factor to take into account in determining whether Mr.

Harris’ primary duty was in the realm of management, it is not dispositive. See 29 C.F.R.

541.700(b). Instead, we consider several factors: “the relative importance of the exempt duties

as compared with other types of duties; the amount of time spent performing exempt work; the

employee’s relative freedom from direct supervision; and the relationship between the

employee’s salary and the wages paid to other employees for the kind of nonexempt work

performed by the employee.” 29 C.F.R. 541.700(a).




         1
         Mr. Harris in his deposition claimed that up to 90 percent of his work was manual, non-
managerial work; however, on appeal, it appears he has abandoned that assertion as he solely
argued that 75 percent of his work was devoted to non-managerial work. We note that Mr.
Harris also argued in his motion in opposition to summary judgment below that 75 percent of his
work was non-exempt; it appears that figure was also relied upon by the trial court.
                                                18


       {¶41} Mr. Harris argues that the managerial tasks he performed were “lacking ‘in

relative importance[,]’” because the floor technicians in his department “did not require

supervision to perform their work responsibilities.” In considering this first factor, “courts must

compare the importance of the plaintiff’s managerial duties with the importance of h[is] non-

managerial duties, keeping in mind the end goal of achieving the overall success of the

company.” See Thomas, 506 F.3d at 505. Thus, the question is not whether Mr. Harris’ already

trained employees could do their job without supervision; the question is whether Mr. Harris’

managerial tasks are more important to Wyant Woods than the performance of his non-exempt

tasks involving cleaning the facility. See id. As noted above, Mr. Harris was responsible for

scheduling his employees, monitoring their attendance, ordering supplies, addressing broken

equipment, granting time off, disciplining his employees, providing in-services to aid in their

training, and evaluating their performances. If Mr. Harris failed to perform these managerial

duties it would be unlikely that the departments could function. See id. (“If Thomas failed to

perform her nonmanagerial duties, her Speedway station would still function, albeit much less

effectively. After all, most of us—even if unwillingly—have visited and spent our money at

filthy gas stations with sparsely stocked shelves. If, however, Thomas failed to perform her

managerial duties, her Speedway station would not function at all because no one else would

perform these essential tasks. Surely, a gas station cannot operate if it has not hired any

employees, has not scheduled any employees to work, or has not trained its employees on

rudimentary procedures such as operating the register.”). Thus, this factor weighs in favor of

Mr. Harris being considered an exempt employee.

       {¶42} With respect to the third factor, “the employee’s relative freedom from direct

supervision[,]” the evidence also supports the conclusion that Mr. Harris’ primary duties were
                                                 19


managerial. See 29 C.F.R. 541.700(a). While Mr. Harris broadly averred that he “had little

discretion to make decisions” and “received direction for conducting [his] daily work

responsibilities from [Ms. Dennis] on a daily basis[,]” his statements are conclusory in nature

and belied by his deposition testimony. During his deposition, with respect to the time period

between his injury and termination, Mr. Harris stated that he did not talk to Ms. Dennis often.

He also indicated that he did not have a set work schedule, and that while he had to work at least

eight hours a day, Monday through Friday, he chose when to come in each day and when to

leave.   He based that decisions on “what was going on that day[.]”            In addition, he was

responsible for deciding when to do rounds of the facility. Mr. Harris did not need permission to

discipline any of his staff or to order supplies. Mr. Harris was responsible for running the in-

services and did not remember his supervisor ever attending the in-services. Finally, Mr. Harris

was solely responsible for deciding what rating to give his staff on their evaluations.

         {¶43} While Mr. Harris asserts that he had no authority to hire personnel and was

instructed how to handle a specific employee if she was not cleared to return to work, courts

have concluded that “[a] plaintiff need not be absolutely free from supervision in order for a

defendant to demonstrate that she was relatively free from supervision.” Wachenschwanz v.

Dolgencorp, LLC, S.D.Ohio No. 2:12-CV-1037, 2014 WL 907249, *10 (Mar. 7, 2014), citing

Thomas, 506 F.3d at 507. Given Mr. Harris’ admissions in his deposition concerning the tasks in

which he could engage without permission or supervision, we conclude that this factor weighs in

favor of him being an exempt employee.

         {¶44} With respect to the fourth factor, “the relationship between the employee’s salary

and the wages paid to other employees for the kind of nonexempt work performed by the

employee[,]” see 29 C.F.R. 541.700(a), we note that there is little evidence or argument in the
                                               20


record. From the record it is clear that Mr. Harris’ salary was $1760, paid on a biweekly basis.

Wyant Woods has not pointed to any evidence in the record detailing the pay of non-exempt

employees. The record evidences that Mr. Harris was a non-union employee, while all his staff

were union employees and that, because of that, Mr. Harris was subject to a different employee

handbook than the union employees. Additionally, Mr. Harris received reimbursement for some

of his cell phone expenses, whereas the union employees did not. This evidence certainly is not

overwhelming, particularly in the absence of salary information on Mr. Harris’ employees.

Accordingly, we are unable to evaluate which side this factor would favor.

       {¶45} Considering all the evidence and the factors in a light most favorable to Mr.

Harris, we conclude that a trier of fact could only conclude that Mr. Harris’ primary duty was

managerial. Mr. Harris engaged in numerous exempt tasks that were vital to Wyant Woods’

success as a company and he was relatively free from direct supervision. While Mr. Harris may

have spent more time performing non-exempt tasks, we nonetheless conclude the evidence only

supports that his primary duty was the performance of exempt tasks.

       {¶46} As this is the only element of the executive exemption test being challenged on

appeal, we conclude the trial court did not err in granting summary judgment to Wyant Woods

on Mr. Harris’ claim for overtime compensation as he was employed in an executive capacity.

Mr. Harris’ second assignment of error is overruled.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
       FAVOR OF WYANT WOODS ON [MR.] HARRIS’ CLAIM THAT WYANT
       WOODS VIOLATED OHIO R.C. [] 4111.13 BECAUSE THIS CLAIM IS NOT
       MOOT AND THE RECORD DEMONSTRATES A GENUINE ISSUE OF
       MATERIAL FACT AS [TO] WHETHER WYANT WOODS TERMINATED
       [MR.] HARRIS IN RETALIATION FOR HIS COMPLAINT ABOUT NOT
       RECEIVING OVERTIME COMPENSATION.
                                                 21


       {¶47} Mr. Harris asserts in his third assignment of error that the trial court erred in

granting summary judgment on his claim alleging a violation of R.C. 4111.13 because it was not

moot and because there remained a genuine issue of material fact. Because we agree that the

trial court erred in finding this claim moot, we conclude the trial court erred in granting summary

judgment on that basis.

       {¶48} R.C. 4111.13(B) states that

       [n]o employer shall discharge or in any other manner discriminate against any
       employee because the employee has made any complaint to the employee’s
       employer, or to the director, that the employee has not been paid wages in
       accordance with sections 4111.01 to 4111.17 of the Revised Code, or because the
       employee has made any complaint or is about to cause to be instituted any
       proceeding under or related to those sections, or because the employee has
       testified or is about to testify in any proceeding.

       {¶49} The trial court determined the claim was moot because “[Mr. Harris] was properly

classified as an exempt employee under Ohio wage and hour law[; and therefore,] no retaliation

claim exists.” Thus, essentially the trial court found that, because Mr. Harris was not entitled to

overtime compensation, he had no claim under R.C. 4111.13(B). Assuming without deciding

that a civil cause of action exists under the statute, see R.C. 4111.99(B) (authorizing criminal

penalties for a violation), we see no requirement in the statute that a plaintiff must first be

entitled to overtime compensation in order for the plaintiff to recover if his or her employer

terminates him or her for complaining about not receiving overtime compensation. While it may

be unlikely that Wyant Woods would have discharged Mr. Harris for complaining about

something he was not entitled to receive, it is not outside the realm of possibility. Accordingly,

we cannot say that this claim is moot.

       {¶50} As the trial court did not pass on any of the issues raised by the parties in their

motion practice, this Court, as a reviewing court, is not inclined to do so in the first instance. See
                                                22


Wooster v. Enviro-Tank Clean, Inc., 9th Dist. Wayne No. 13CA0012, 2015-Ohio-1876, ¶ 15.

Upon remand, the trial court is instructed to consider the issues raised by the parties. To the

extent Mr. Harris has argued that the trial court erred in finding his claim for a violation of R.C.

4111.13 moot, we agree. Mr. Harris’ third assignment of error is sustained to that extent.

                                                III.

       {¶51} We sustain Mr. Harris’ first assignment of error, overrule his second assignment

of error, and sustain his third assignment of error to the extent he asserts his claim was not moot.

The matter is remanded to the Summit County Court of Common Pleas for proceedings

consistent with this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                             23


      Costs taxed equally to both parties.




                                                  CARLA MOORE
                                                  FOR THE COURT


HENSAL, P. J.
WHITMORE, J.
CONCUR.


APPEARANCES:

JEROME T. LINNEN, Attorney at Law, for Appellant.

BRIAN J. KELLY, Attorney at Law, for Appellee.
