[Cite as Mezey v. Ohio Dev. Servs. Agency, 2016-Ohio-8578.]




GAIL MEZEY                                            Case No. 2015-00110

       Plaintiff                                      Judge Patrick M. McGrath

       v.                                             DECISION

OHIO DEVELOPMENT SERVICES
AGENCY

       Defendant



        {¶1} Before the court are objections filed by plaintiff Gail Mezey on October 4,
2016 to Magistrate Anderson M. Renick’s decision of September 20, 2016.            In his
decision, Magistrate Renick determined that Mezey failed to prove claims of wrongful
termination in violation of public policy and promissory estoppel after defendant Ohio
Development Services Agency (ODSA) terminated Mezey’s employment.                 Mezey
objects to Magistrate Renick’s factual findings supporting his determination that she did
not prove her claim of wrongful discharge in violation of public policy and his
conclusions drawn from the disputed factual findings. She does not object to Magistrate
Renick’s recommended decision directed to her promissory-estoppel claim.
        {¶2} Under the Ohio Rules of Civil Procedure, in ruling on objections to a
magistrate’s decision, a court is required to undertake an independent review as to the
objected matters to determine whether a magistrate has properly determined the factual
issues and appropriately applied the law. Because the court determines that, upon
independent review, the magistrate has properly determined the factual issues and
appropriately applied the law related to Mezey’s claim of wrongful termination in
violation of public policy, the court concludes that judgment in favor of ODSA should be
entered.
Case No. 2015-00110                         -2-                                 DECISION


   I. Background
       {¶3} Mezey represents that in 2011, after two employees left the Film Bureau, a
branch of the Ohio Office of Travel and Tourism in what was formerly the Ohio
Department of Development, she “agreed to come in and work on a temporary,
‘intermittent’ basis * * * to assist with the transition to new, permanent staff (or until
senior managers ‘figured out what they wanted to do’ * * *).”           (Objections at 2.)
According to Mezey, she “was asked to go to 40 hours per week” in May 2011, and she
“later was asked to reduce her hours to 32 per week” in September 2011, but “within a
few months she was again working 40 hours most weeks because of the workload.”
(Objections at 3.) Mezey indicates that, after “the first few months of her work at the
Film Office,” she “began to discuss with each of her successive supervisors and with
upper management at the agency the question of her claimed status as an ‘intermittent’
employee” after she had taken on increased hours and responsibilities. (Objections
at 7.) Mezey represents that in the summer of 2013 she consulted an attorney who sent
a demand letter dated June 11, 2013 to ODSA’s director (David Goodman), requesting
that her employment status be changed to “full-time/permanent” and seeking “a
measure of back pay” for the period that she had been treated as an intermittent
employee. (Objections at 9.) Mezey maintains that subsequently she began to receive
a “chilly reception” from management employees and supervisors. (Objections at 9.)
According to Mezey, she was told to keep her hours to “approximately 19 per week, or
1000 per year, in June of 2013” and, except for a week, she complied with the
instruction. (Objections at 10.) Mezey represents that in August 2013 when she arrived
at a meeting that she requested, she was “summarily discharged.” (Objections at 10.)
       {¶4} On February 12, 2015, Mezey sued ODSA in this court, asserting three
“counts”: (1) “Violation of Public Policy,” (2) “Promissory Estoppel,” and (3) “Violation of
Ohio Law.” The court referred the cause to mediation and, in accordance with Civ.R.
53, it also appointed Magistrate Anderson Renick without limitation of authority specified
Case No. 2015-00110                           -3-                                DECISION


in Civ.R. 53(C). After the court learned that mediation did not resolve the case, ODSA
moved to dismiss Mezey’s complaint.           Magistrate Renick issued an order granting
ODSA’s motion in part and dismissing Mezey’s third “count”—“Violation of Ohio Law.”
He ordered the case to be set for trial in the normal course.
          {¶5} The matter proceeded to trial before Magistrate Renick as to Mezey’s claims
of a “violation of public policy” and “promissory estoppel.” On September 20, 2016,
Magistrate Renick issued a decision wherein he determined that Mezey failed to
prove by a preponderance of the evidence her claims of wrongful discharge in violation
of public policy and promissory estoppel.            In his decision, Magistrate Renick
recommended that judgment be rendered in favor of ODSA.
          {¶6} On October 4, 2016, Mezey filed objections to Magistrate Renick’s decision
related to his determination of her claim of wrongful discharge in violation of public
policy.
          {¶7} ODSA has not filed any objections to Magistrate Renick’s decision.

   II. Plaintiff’s Objections to the Magistrate’s Decision
          {¶8} In her objections, Mezey disputes the magistrate’s factual findings pertaining
to her wrongful discharge in violation of public policy claim. Mezey contends that the
magistrate “erred in the factual findings that led to his conclusion that Plaintiff had not
met her burden of proof on this claim.” (Objections at 12.) Mezey “submits that the
Magistrate erred in concluding that the decision-maker who discharged Ms. Mezey was
unaware of her having consulted with an attorney and that there were legitimate, non-
retaliatory reasons for her termination.” (Objections at 1.) Mezey states: “The Plaintiff
respectfully submits that these findings are not supported by the clear weight of the
evidence.      To the contrary, the evidence showed that Ms. Tolan was aware of
Ms. Mezey having sought legal advice and that the stated reasons for her termination
were inaccurate or actually false.” (Emphasis sic.) (Objections at 11.)
Case No. 2015-00110                          -4-                                  DECISION


       {¶9} In her objections, Mezey asserts:

       a. “First, Ms. Tolan’s direct testimony that she did not know about Ms. Mezey’s
          legal claims is undermined by the contents of a letter from DSA’s own
          counsel.” (Objections at 12.)

       b. “Second, the evidence showed that in fact the stated reasons given by
          Ms. Tolan for discharging Ms. Mezey – that they did not share the same
          ‘vision’ for the Film Office and that Ms. Mezey was engaged in ‘kingdom
          building’ by focusing on activities she was interested in rather than the tax
          credit administration – were pretextual. The actual reason therefore must
          have been her consulting with an attorney and attempting to assert legal
          claims relating to her employment.” (Objections at 14.) Mezey claims that
          trial testimony rebuts allegations that she disobeyed instructions about her
          work hours, made unapproved trips, failed to work with other arms of the
          agency, and disseminated poor-quality written materials.

For purposes of review, the court labels Mezey’s claims as “Objection No. 1,” and
“Objection No. 2.”

   III. Law and Analysis
   A. Mezey’s objections are timely filed but her objections to the magistrate’s
       factual findings are not supported by a transcript of all the evidence
       submitted to the magistrate relevant to her objections or an affidavit of that
       evidence.
       {¶10} Civ.R. 53(D)(3)(b) pertains to objections to a magistrate’s decision.
Pursuant to Civ.R. 53(D)(3)(b)(i), “A party may file written objections to a magistrate’s
decision within fourteen days of the filing of the decision, whether or not the court has
adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).   If any party timely files objections, any other party may also file
objections not later than ten days after the first objections are filed.”               Civ.R.
53(D)(3)(b)(ii) provides, “An objection to a magistrate’s decision shall be specific and
state with particularity all grounds for objection.” According to Civ.R. 53(D)(3)(b)(iii):
   Case No. 2015-00110                          -5-                                   DECISION


          An objection to a factual finding, whether or not specifically designated as
          a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a
          transcript of all the evidence submitted to the magistrate relevant to that
          finding or an affidavit of that evidence if a transcript is not available. With
          leave of court, alternative technology or manner of reviewing the relevant
          evidence may be considered. The objecting party shall file the transcript
          or affidavit with the court within thirty days after filing objections unless the
          court extends the time in writing for preparation of the transcript or other
          good cause. If a party files timely objections prior to the date on which a
          transcript is prepared, the party may seek leave of court to supplement the
          objections.

          {¶11} Here, Mezey filed her written objections on October 4, 2016—fourteen
   days after the magistrate issued his decision on September 20, 2016. The court finds
   that Mezey’s written objections are timely filed in accordance with Civ.R. 53(D)(3)(b)(i).
          {¶12} Additionally, the court finds that Mezey has not filed a transcript of all the
   evidence submitted to the magistrate relevant to her challenges to the magistrate’s
   factual findings within thirty days after the filing of her objections. And the court finds
   that Mezey has not sought leave of court to extend the time for the filing of a transcript.
   Neither has Mezey filed an affidavit of the evidence relevant to her challenges to the
   magistrate’s factual findings because a transcript is unavailable within thirty days after
   the filing of her objections. The court further finds that Mezey has not sought leave of
   court related to an alternative technology or manner of reviewing relevant evidence.

      B. Because Mezey has not filed a transcript of all the evidence submitted to
          the magistrate relevant to her objections or an affidavit of that evidence,
          the court is required to accept the magistrate’s factual findings and limit its
          review to the magistrate’s legal conclusions.
      {¶13} Civ.R. 53(D)(4)(d) establishes what a trial court is required to do if a party
timely files one or more objections. It provides: “If one or more objections to a magistrate’s
decision are timely filed, the court shall rule on those objections. In ruling on objections,
the court shall undertake an independent review as to the objected matters to ascertain that
   Case No. 2015-00110                          -6-                                   DECISION


the magistrate has properly determined the factual issues and appropriately applied the
law. Before so ruling, the court may hear additional evidence but may refuse to do so
unless the objecting party demonstrates that the party could not, with reasonable diligence,
have produced that evidence for consideration by the magistrate.” According to Civ.R.
53(D)(4)(a), a magistrate’s decision “is not effective unless adopted by the court.”
          {¶14} In Siegel v. State, 2015-Ohio-441, 28 N.E.3d 612, ¶ 12 (10th Dist.) the
   Tenth District Court of Appeals discussed the standard that applies to this court’s review
   of a magistrate’s determination, stating:

          “A magistrate is an arm of the court, not a separate judicial entity with
          independent judicial authority and duties.” State ex rel. DeWine v.
          Ashworth, 4th Dist. No. 11CA16, 2012-Ohio-5632, ¶ 38. The Court of
          Claims still must “undertake an independent review as to the objected
          matters to ascertain that the magistrate has properly determined the
          factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d). The
          court retains the ultimate authority and responsibility over the magistrate’s
          findings and rulings. Hartt v. Munobe, 67 Ohio St.3d 3, 5-6, 1993 Ohio
          177, 615 N.E.2d 617 (1993). * * *.

          {¶15} Notably, the Tenth District Court of Appeals has repeatedly determined,
   that if an objecting party fails to submit a transcript or affidavit of evidence, a trial court
   is required to accept a magistrate’s factual findings and limit its review to the
   magistrate’s legal conclusions. See Law Offices of James P. Connors v. Cohn, 10th
   Dist. Franklin No. 08AP-1031, 2009-Ohio-3228, ¶ 23 (“If an objecting party fails to
   submit a transcript or affidavit, the trial court must accept the magistrate’s factual
   findings and limit its review to the magistrate’s legal conclusions”); Ross v. Cockburn,
   10th Dist. Franklin No. 07AP-967, 2008-Ohio-3522, ¶ 5 (“In the absence of a transcript
   or an affidavit, the trial court is required to accept the magistrate’s findings of fact and
   may only examine the legal conclusions drawn from those facts”); Forth v. Gerth, 10th
   Dist. Franklin No. 05AP-576, 2005-Ohio-6619, ¶ 9, quoting Carter v. Le, 10th Dist.
   Franklin No. 05AP-173, 2005-Ohio-6209, at ¶ 11 (“‘In the absence of a transcript, the
Case No. 2015-00110                           -7-                                  DECISION


trial court is required to accept the magistrate’s findings of fact. Therefore, the trial court
could examine only the legal conclusions drawn from those facts.’”); Farmers Mkt.
Drive-In Shopping Centers, Inc. v. Magana, 10th Dist. Franklin No. 06AP-532, 2007-
Ohio-2653, ¶ 27-28.
       {¶16} Other Ohio appellate districts also have determined that, absent a
transcript or affidavit, a trial court is limited to a review of a magistrate’s conclusions of
law. See, e.g., Welch v. Prompt Recovery Servs., 9th Dist. Summit No. 27175, 2015-
Ohio-3867, ¶ 10 (“the trial court correctly concluded that it was bound by the
magistrate’s findings of fact, because Appellants failed to provide a transcript of the
proceedings before the magistrate, or a proper affidavit in place of a transcript”); Wade
v. Wade, 113 Ohio App.3d 414, 418, 680 N.E.2d 1305 (11th Dist.1996) (“absent a
transcript or appropriate affidavit as provided in the rule, a trial court is limited to an
examination of the referee’s conclusions of law and recommendations, in light of the
accompanying findings of fact only unless the trial court elects to hold further hearings”).
       {¶17} Mindful of the foregoing law, the court examines Mezey’s objections.

   C. Legal authority exists to support a view that an employer’s termination of
       an employee for retaining legal counsel violates the public policy of Ohio.
       {¶18} In her objections, Mezey does not challenge the magistrate’s conclusion of
law that discharging an employee for consulting an attorney may serve as a basis for
the public policy exception to the common law employment-at-will doctrine.                See
Objections at 12 (indicating that the magistrate “correctly noted that discharging an
employee for consulting an attorney may be the basis for * * * a cause of action [for
wrongful discharge in violation of public policy]”).
       {¶19} Upon review, the court determines that there is authority to support a view
that under Ohio law an employer’s discharge of an employee for consulting an attorney
constitutes a cause of action for wrongful discharge in violation of public policy. In
Simonelli v. Anderson Concrete Co., 99 Ohio App.3d 254, 259, 650 N.E.2d 488 (10th
Case No. 2015-00110                          -8-                                 DECISION


Dist.1994), finding persuasive the reasoning contained in Thompto v. Coborn’s Inc., 871
F.Supp. 1097 (N.D.Iowa 1994), the Tenth District Court of Appeals concluded that “the
act of firing an employee for consulting an attorney could serve as the basis for a public
policy exception to the common-law employment-at-will doctrine.” And three years later
the First District Court of Appeals held that “it is repugnant to the public policy of this
state for employers to terminate employees for exercising their right to consult a lawyer.
The courthouse door must be open to the people of Ohio, and it is not ajar when
citizens may be fired for entering.” Chapman v. Adia Servs., 116 Ohio App.3d 534, 544,
688 N.E.2d 604 (1st Dist.1997). Additionally, a federal district court sitting in Ohio has
stated: “The Court finds no question that it is against the clear public policy of the state
of Ohio for an employer to terminate an employee for retaining legal counsel.” Kulick v.
Ethicon Endo-Surgery, Inc., 803 F.Supp.2d 781, 788-789 (S.D.Ohio 2011), citing
Simonelli, supra.
       {¶20} Thus, controlling and persuasive authority exists to support the notion that
an employer’s discharge of an employee for retaining legal counsel violates the public
policy of Ohio and the act of terminating an employee for consulting an attorney may
constitute a cause of action for wrongful discharge in violation of public policy.

   D. Mezey challenges the magistrate’s factual findings relative to her claim of
       wrongful discharge in violation of public policy.
       {¶21} In his decision, the magistrate determined that, as a general rule, the
common law doctrine of employment at will governs employment relationships in Ohio.
After listing the elements of a wrongful-discharge-in-violation-of-public-policy claim, and
citing to authority for the proposition that it is against Ohio public policy for an employer
to terminate an employee for retaining legal counsel, Magistrate Renick stated:
              Although plaintiff contends that the termination of her employment
       was motivated by her decision to retain legal counsel, plaintiff failed to
       prove that Director Goodman terminated her position because her
       attorney sent him a letter demanding an appointment to a full-time
Case No. 2015-00110                             -9-                                    DECISION


       position. Furthermore, [Lyn Tolan, Chief of Communications and Policy]
       made the recommendation to terminate plaintiff’s employment and Tolan’s
       testimony that she was not aware that plaintiff had retained legal counsel
       was credible. The evidence shows that the job audit of the Film Office,
       which reviewed both [Pat Barker’s1] and plaintiff’s positions, began before
       the initial demand letter arrived at DSA. Plaintiff represents that the first
       letter to Goodman was sent by regular mail on June 11, 2013, the same
       date that HR department announced the audit of the departments which
       were under Tolan’s direction. (Plaintiff’s Exhibits 22 and 38.) The court
       finds that plaintiff failed to establish that Tolan had any knowledge of
       either the letter or plaintiff’s decision to retain an attorney to address her
       employment status when she recommended the termination of her
       position.

              Tolan explained that she recommended terminating the
       employment of both Barker and plaintiff based upon her assessment that
       they had different ideas for the Film Office and that they did not appear
       interested in “moving forward.” Tolan testified that she became concerned
       that Barker and plaintiff did not want to participate in Tolan’s vision for the
       Film Office. Specifically, Tolan testified that the proposal to raise
       application fees did not line up with the goals of the administration. Tolan
       stated that plaintiff talked to her on multiple occasions about her proposal
       to raise application fees to provide funds for plaintiff’s full-time salary and
       staff. According to Tolan, plaintiff was spending more time on “kingdom
       building” than focusing on tax credit applications. The court notes that
       Tolan’s testimony regarding her emphasis on the tax credit program as
       consistent with the direction she provided to plaintiff in her August 19,
       2013 email. (Plaintiff’s Exhibit 47.) Tolan was also critical of the time and
       expense that was spent on plaintiff’s traveling. Tolan testified that she had
       no doubt that plaintiff was interested in creating a full-time job for herself
       by conducting the activities she was interested in rather than focusing on
       [Ohio Motion Picture Tax Credit] administration.

               The evidence shows that plaintiff had extensive experience in the
       film industry and that she was a capable employee. However, the court is
       convinced that Tolan believed that Barker and plaintiff did not share her
       vision for the Film Office and that they were at least somewhat resistant to

       1According   to the magistrate, Pat Barker was employed by Ohio Development Services Agency
from October 2010 to October 2013. She initially served as the Assistant Director of Tourism and was
later promoted to Interim Director of Tourism in June 2011. (Magistrate’s Decision at 2.)
Case No. 2015-00110                          -10-                              DECISION


       Tolan’s direction. Although plaintiff contends that Tolan’s stated reasons
       for terminating her employment was a “sham,” the court finds that Tolan’s
       testimony regarding her decision to terminate plaintiff’s employment was
       credible.

              The general rule is that the court may not substitute its judgment for
       that of the employer and may not second-guess the business judgments
       of employers regarding personnel decisions. Wissler v. Ohio Dept. of Job
       & Family Servs., 10th Dist. No. 09AP-569, 2010-Ohio-3432, ¶ 27. Based
       upon the testimony and evidence presented at trial, the court concludes
       that defendant had a legitimate overriding business justification for its
       decision to terminate plaintiff's employment. Accordingly, the court finds
       that plaintiff has failed to prove by a preponderance of the evidence her
       claim for wrongful termination in violation of public policy.

(Emphasis added.) (Magistrate’s Decision at 6-8.)

   1. Objection No. 1
       {¶22} In objection No. 1, Mezey maintains that Lyn Tolan’s direct testimony that
she did not know about Mezey’s legal claims is undermined by the contents of a letter
from ODSA’s counsel. (Objections at 12.) By objection No. 1, Mezey takes issue with
the magistrate’s statement: “Tolan’s testimony that she was not aware that plaintiff had
retained legal counsel was credible.” (Magistrate’s Decision at 6.) In support, Mezey
draws the court’s attention to plaintiff’s exhibit No. 59.
       {¶23} Plaintiff’s exhibit No. 59 is a copy of letter dated July 24, 2013 from Diane
M. Lease, Chief Legal Counsel of ODSA, to Mezey’s counsel, Julie C. Ford, that
contains the notation “RE: Gail Mezey Employment Status.”            In this letter, Lease
thanked Ford for her understanding in allowing her to review “this issue” and respond to
Ford’s previous correspondence. With the letter, Lease apparently included enclosures
such as Mezey’s “Personnel Action,” which supposedly showed that Mezey was
appointed as an intermittent employee, Mezey’s acceptance letter, and a portion of
ODSA’s employment handbook.             The letter states, “Upon Lyn Tolan assuming
management of Gail, Lyn spoke with Gail and explained that her hours must be
Case No. 2015-00110                        -11-                              DECISION


consistent with the conditions of her employment and management’s direction.” Lease
informed Ford that “we cannot accommodate the request for permanent employment.
In the meantime, I would suggest that you review this with Gail so that she fully
understands the position she maintains at DSA as an intermittent employee who is now
managed by Ms. Tolan.” The letter indicates that a copy was sent to Director Goodman
and Lynn Tolan as it contains a notation stating:

       {¶24} cc:      Director Goodman
                   i. Lyn Tolan

       {¶25} The court determines that plaintiff’s exhibit No. 59—that was admitted into
evidence—when viewed with plaintiff’s exhibit No. 38 (Mezey’s attorney’s demand letter
of June 11, 2013)—that was admitted into evidence—calls into question (1) Tolan’s
apparent testimony that she was not aware that Mezey had retained legal counsel and
(2) the magistrate’s credibility determination regarding Tolan’s apparent testimony.
Several points lead to this view:

       c. First, exhibit No. 38 is a demand letter sent by an attorney who, on June 11,
          2013, on behalf of Mezey, wrote to Director Goodman. It is manifest that as
          of June 2013 Mezey had retained legal counsel.

       d. Second, exhibit No. 59 constitutes a July 2013 written response by ODSA to
          Mezey’s attorney’s demand letter. Exhibit No. 59 establishes that a copy of
          Lease’s letter was to be sent to Lyn Tolan as demonstrated by the “cc”
          notation on the letter. It is reasonable to conclude that Tolan received the
          letter. And, as the letter was between two attorneys—one of whom
          represented Mezey—it also is reasonable that Tolan had knowledge that
          Mezey had retained an attorney.

These circumstances serve to rebut the magistrate’s finding that Mezey failed to
establish that Tolan did not have knowledge that Mezey had retained legal counsel.
And they also may call into question the magistrate’s credibility determination about
Tolan’s apparent trial testimony.
Case No. 2015-00110                        -12-                                DECISION


      {¶26} However, because Mezey has failed to submit a transcript or affidavit of
evidence to support her challenge to the magistrate’s factual findings, in accordance
with precedent of the Tenth District Court of Appeals, the court concludes that it “must
accept the magistrate’s factual findings and limit its review to the magistrate’s legal
conclusions.” Law Offices of James P. Connors v. Cohn, 10th Dist. Franklin No. 08AP-
1031, 2009-Ohio-3228, ¶ 23; see Ross v. Cockburn, 10th Dist. Franklin No. 07AP-967,
2008-Ohio-3522, ¶ 5; Forth v. Gerth, 10th Dist. Franklin No. 05AP-576, 2005-Ohio-
6619, ¶ 9; Carter v. Le, 10th Dist. Franklin No. 05AP-173, 2005-Ohio-6209, at ¶ 11;
Farmers Mkt. Drive-In Shopping Centers, Inc. v. Magana, 10th Dist. Franklin No. 06AP-
532, 2007-Ohio-2653, ¶ 27-28.
      {¶27} Of significance therefore is (1) whether the magistrate’s conclusion that
Mezey failed to prove that Director Goodman terminated her position because Mezey’s
attorney sent him a demand letter and (2) whether ODSA had a legitimate overriding
business justification for its decision to terminate Mezey’s employment are against the
manifest weight of the evidence.
      {¶28} In State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), the
Ohio Supreme Court discussed the concept of weight of the evidence, stating: “Weight
of the evidence concerns ‘the inclination of the greater amount of credible evidence,
offered in a trial, to support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof will be entitled to their
verdict, if, on weighing the evidence in their minds, they shall find the greater amount of
credible evidence sustains the issue which is to be established before them. Weight is
not a question of mathematics, but depends on its effect in inducing belief.’ (Emphasis
added.) Black’s, supra, at 1594.” Since the Ohio Supreme Court issued Thompkins, it
has recognized that the Thompson standard of review for manifest weight of the
evidence applies in civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-
2179, 972 N.E.2d 517, ¶ 17-23.
Case No. 2015-00110                       -13-                                DECISION


      {¶29} The court finds that Mezey’s exhibit No. 38 establishes that a copy of
Mezey’s attorney’s letter of June 2013 was sent to Director Goodman. However, the
court finds that Mezey’s exhibit No. 38 does not by itself necessarily establish that
Goodman read the letter, that he based a decision to terminate Mezey’s employment
because Mezey retained an attorney, or that he based a decision to terminate Mezey’s
employment because Mezey’s attorney sent a demand letter. Such conclusions hinge
on an inference based on an inference. Without any other supporting facts—i.e., facts
supported by a transcript of the evidence submitted to the magistrate—the court
determines that such a stacking of inferences is ineffective to undermine the
magistrate’s determination that Mezey “failed to prove that Director Goodman
terminated her position because her attorney sent him a letter demanding an
appointment to a full-time position.” (Magistrate’s Decision at 6.) See Hurt v. Charles J.
Rogers Transp. Co., 164 Ohio St. 329, 130 N.E.2d 820 (1955), paragraph one of the
syllabus (“An inference based solely and entirely upon another inference, unsupported
by any additional fact or another inference from other facts, is an inference on an
inference and may not be indulged in by a jury”).
      {¶30} Additionally, although exhibit No. 59 rebuts the magistrate’s finding that
Mezey failed to establish that Tolan did not have knowledge that Mezey had retained
legal counsel, such a rebuttal does not necessarily mean that the magistrate’s
determination that ODSA had a legitimate overriding business justification for its
decision to terminate Mezey’s employment is against the manifest weight of the
evidence. In City of Hilliard v. First Indus., L.P., 165 Ohio App.3d 335, 2005-Ohio-6469,
846 N.E.2d 559, ¶ 30 (10th Dist.), the Tenth District Court of Appeals explained: “A
judgment is not against the manifest weight of the evidence merely because
inconsistent evidence was presented. State v. Raver, Franklin App. No. 02AP-604,
2003-Ohio-958, at ¶ 21.” And in Raver at ¶ 21, the Tenth District Court of Appeals
noted: “‘While the jury may take note of the inconsistencies and resolve or discount
Case No. 2015-00110                         -14-                               DECISION


them accordingly, see [State v.] DeHass [1967, 10 Ohio St.2d 230], such
inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.’ State v. Nivens (May 28, 1996), Franklin App. No. 95AP-
1236. A jury, as finder of fact, may believe all, part, or none of a witness’s testimony.
State v. Antill (1964), 176 Ohio St. 61, 67.”
       {¶31} In this case, the magistrate—as the trier-of-fact as to all of the evidence
before him—could take note of any inconsistencies raised by plaintiff’s exhibit No. 59—
and resolve or discount the inconsistencies accordingly.
       {¶32} Upon independent review, the court determines that Mezey’s Objection No.
1 should be overruled.

   2. Objection No. 2
       {¶33} In objection No. 2, Mezey contends that ODSA’s discharge of her was
based on pretext, citing in support of this contention, among other things, various trial
testimony. See, e.g., Objections at 14, 15, 16 (“More to the point, Ms. Tolan herself
equivocated or even backed down from many of these allegations in her trial testimony;”
“at trial [Tolan] acknowledged that she was Ms. Mezey’s supervisor for only
approximately three months * * *;” “Both Ms. Mezey and Ms. Barker testified that the
concept of increasing the tax credit application fees was discussed many times * * *”).
       {¶34} As Mezey has not filed a transcript to support her view of the trial evidence
or an affidavit of the evidence because a transcript is unavailable, the court finds
Mezey’s characterization of the trial testimony is less than convincing.         Absent a
transcript of the evidence submitted to the magistrate or affidavit of evidence in relation
to her claim that ODSA terminated her employment based on pretext, the court
determines that the magistrate’s findings as stated in his decision at 7 related to Tolan’s
testimony—namely, that Tolan believed that “Barker and plaintiff did not share her
vision for the Film Office and that they were at least somewhat resistant to Tolan’s
direction. * * * [T]he court finds that Tolan testimony regarding her decision to terminate
Case No. 2015-00110                      -15-                               DECISION


plaintiff’s employment was credible”—should be adopted. The magistrate was best able
to view any witnesses and observe their demeanor, gestures and voice inflections, and
use these observations in weighing the credibility of the testimony offered to him. See
In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 45 (“It is well
settled that ‘“[t]he trial judge is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.’” State v. Amburgey (1987), 33 Ohio St.3d 115,
117, 515 N.E.2d 925, quoting Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77,
80, 10 OBR 408, 461 N.E.2d 1273”).
      {¶35} The court determines that Mezey’s Objection No. 2 is not persuasive.

   IV. Conclusion
      {¶36} Wherefore, upon independent review as to the objected matters, the court
determines that Mezey’s objections of October 4, 2016 to the magistrate’s decision of
September 20, 2016 should be overruled.         The court finds that the magistrate has
properly determined the factual issues and appropriately applied the law related to
Mezey’s claim of wrongful termination in violation of public policy. The court further
determines that the magistrate’s decision and recommendation should be adopted as its
own. Judgment should be rendered in favor of ODSA. Court costs should be assessed
against Mezey.




                                             PATRICK M. MCGRATH
                                             Judge
[Cite as Mezey v. Ohio Dev. Servs. Agency, 2016-Ohio-8578.]




GAIL MEZEY                                            Case No. 2015-00110

       Plaintiff                                      Judge Patrick M. McGrath

       v.                                             JUDGMENT ENTRY

OHIO DEVELOPMENT SERVICES
AGENCY

       Defendant



        {¶37} For the reasons set forth in the decision filed concurrently herewith, upon
independent review as to the objected matters, the court OVERRULES plaintiff’s
objections. The court finds that the magistrate has properly determined the factual
issues and appropriately applied the law. The court adopts the magistrate’s decision
and recommendation as its own. 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:
Julie C. Ford                                         Lee Ann Rabe
111 West First Street, Suite 1100                     Randall W. Knutti
Dayton, Ohio 45402-1156                               Assistant Attorneys General
                                                      150 East Gay Street, 18th Floor
                                                      Columbus, Ohio 43215-3130

Filed December 2, 2016
Sent to S.C. Reporter 1/10/17
