[Cite as Morway v. Ohio Bur. of Workers' Comp., 2011-Ohio-7027.]




                                                      Court of Claims of Ohio
                                                                           The Ohio Judicial Center
                                                                   65 South Front Street, Third Floor
                                                                              Columbus, OH 43215
                                                                    614.387.9800 or 1.800.824.8263
                                                                               www.cco.state.oh.us



LAURA L. MORWAY

       Plaintiff

       v.

OHIO BUREAU OF WORKERS’ COMPENSATION, et al.

       Defendants

Case No. 2003-10198

Judge Joseph T. Clark

DECISION


        {¶1} Plaintiff brought this action alleging retaliation in violation of the Fair Labor
Standards Act (FLSA), 29 U.S.C. 201 et seq., and for negligent hiring, supervision, or
retention. In lieu of trial, this matter was submitted for decision on the issue of liability
based upon the parties’ briefs, the transcript of the March 24, 2004 evidentiary hearing,
stipulations of fact, depositions, and supporting exhibits.1
        {¶2} As a result of the evidentiary hearing, the court issued a decision finding that
plaintiff’s supervisors, Arlene Overton and George Durkin, were entitled to civil
immunity, inasmuch as they acted within the scope of their employment and did not act
with malicious purpose, in bad faith, or in a wanton or reckless manner toward plaintiff.
On October 27, 2005, the Tenth District Court of Appeals affirmed the court’s decision



        1
        On March 9, 2007, summary judgment was granted in favor of defendants on Counts Two and

Three of the amended complaint.
Case No. 2003-10198                         -2-                                    ENTRY

on immunity and summarized the evidence presented at the immunity hearing as
follows:
       {¶3} “[Plaintiff’s] allegations are based upon a series of incidents, which occurred
within the context of her employment at the Bureau of Workers' Compensation [BWC] in
the Youngstown office.      [Plaintiff] was employed as a Claims Assistant but began
working as an Employer Services Specialist (“ESS”) in January 2003, which involves
talking to employers about the premium-discount program, drug-free workplace
program, conducting consultations with employers and covering the front desk in the
absence of another employee, the Account Examiner 2. (Tr. at 39.) Two times she
traveled to Columbus for training in late January and one week in February. During the
week in February, [plaintiff] worked 44 hours and 45 minutes. She completed a request
for overtime pay, but her immediate supervisor, George Durkin, who is the Risk
Supervisor, denied the request and asked her to flex the time. (Tr. at 44-48.) Durkin
checked with his supervisor, Arlene Overton, who is the Service Office Manager, who
also denied the request.      [Plaintiff] then approached the union steward, Elizabeth
Chahine, who contacted the assistant administrator in Columbus and [plaintiff] was
subsequently, on March 6, 2003, informed that she would receive overtime pay. (Tr. at
51-52; 147-148.)
       {¶4} “[Plaintiff] argues that, after this incident, Durkin and Overton began to
harass her and engage in retaliatory actions. The next incident occurred on March 7,
2003, when [plaintiff] was covering the front desk because the Account Examiner 2 was
absent. (Tr. at 54.) [Plaintiff] testified that, at 12:30 p.m., J.J. Kovacs relieved her. She
went to the restroom and then to lunch, leaving the office at 12:36 p.m. She returned
just before 1:36 p.m. (Tr. at 55-56.) Durkin was seated at the front desk and, in a loud
voice, began to tell her she should not extend her lunch hour beyond the allotted one
hour. He said, “‘Lady, what does that clock say[?]’” (Tr. at 57.) He also complained
that she had not properly logged-in phone calls, although she had not been trained to
Case No. 2003-10198                         -3-                                    ENTRY

do so. (Tr. at 60.) Durkin also told her to distribute the mail, which she had already
done. (Tr. at 66.) Mack Beck, a security guard, was in the lobby at the time and heard
the exchange between [plaintiff] and Durkin. (Tr. at 134.) Beck testified that Durkin
chastised [plaintiff] in an unpleasant tone of voice and [plaintiff] was crying. (Tr. at 137;
140.)
        {¶5} “On March 12, 2003, [plaintiff] filed a grievance concerning Durkin's behavior
on March 7, and a grievance hearing was held on March 13, 2003. Durkin denied
yelling at [plaintiff]. Chahine testified at the trial that she informed Overton that Beck
had witnessed the incident but Overton did not discuss the issue with Beck. (Tr. at 153;
156; 140.) Overton concluded that Durkin had not acted inappropriately. (Tr. at 71;
exhibit No. 3.)
        {¶6} “Also on March 7, [plaintiff] spoke to Durkin about a customer that she had
been unable to assist in reinstating his coverage. [Plaintiff] testified that she attempted
to reach Durkin for assistance three times but he was away from his desk and she
telephoned the Warren Service Office in an attempt to get assistance but was
unsuccessful. (Tr. at 77; 80.) Durkin then instructed her as to the computer system.
[Plaintiff] argues that Durkin accused her of failing to provide adequate service to the
client, but Durkin and Overton failed to contact the customer to confirm their allegations.
        {¶7} “On March 18, 2003, Durkin and Overton met with [plaintiff] for a Corrective
Counseling session and to provide an action plan. Durkin testified that he had been
working on this action plan since February to address things that needed attention. (Tr.
at 218.) [Plaintiff] testified that she was denied union representation, even though such
counseling could result in disciplinary action. [Plaintiff] contends that the action plan
could not have been reasonably completed and had been implemented to cause her to
fail in her position. Durkin described the corrective counseling session and the action
plan as an attempt to help [plaintiff] succeed. (Tr. at 222.)
Case No. 2003-10198                           -4-                                      ENTRY

        {¶8} “Another incident occurred on March 19, 2003, when [plaintiff] and Durkin
were traveling together to an off-site location for a presentation. [Plaintiff] asked if she
could visit another employer by herself the following day. [Plaintiff] described Durkin's
response, as follows:
        {¶9} “‘* * * And he became immediately angry and defensive. His face turned
red. His eyes were erratic. He was waving his arms, and he insisted that he was going
with me, that I would not be going anywhere by myself. * * *’ (Tr. at 88.)
        {¶10} “[Plaintiff] testified that Durkin frightened her and she contacted Chahine
and reported workplace violence. (Tr. at 92.) Shortly after this incident, [plaintiff] took a
voluntary demotion to her former position as a Claims Specialist to avoid being under
Durkin’s direct supervision. She contends that she was constructively discharged as an
ESS.
        {¶11} “After [plaintiff] returned to her job as a Claims Specialist, [plaintiff] received
a written reprimand for failure to use good behavior, and rude and discourteous
treatment of management for allegedly referring to Durkin as an ‘asshole.’ (Tr. at 264;
258.)   Overton testified that she received an email message from a supervisor in
[plaintiff]’s area who overheard a conversation between [plaintiff] and a co-worker.
Overton attempted to obtain witness statements but no one corroborated the claim.
Overton conducted an investigatory interview and [plaintiff] denied making the
comment, but Overton issued a written reprimand. (Tr. at 261; 264.)
        {¶12} “[Plaintiff] argues that these incidents are indicative of retaliatory behavior
by Durkin and Overton because she proved them wrong regarding the overtime issue.
Durkin and Overton both denied such.”           Morway v. Ohio Bur. of Workers' Comp.,
Franklin App. No. 04AP-1323, 2005-Ohio-5701, ¶2-10.


FLSA RETALIATION
Case No. 2003-10198                        -5-                                    ENTRY

       {¶13} With regard to the retaliation claim, 29 U.S.C. 215(a)(3) of the FLSA
provides that it shall be unlawful for any person “to discharge or in any other manner
discriminate against any employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related to this chapter, or
has testified or is about to testify in any such proceeding, or has served or is about to
serve on an industry committee.”
       {¶14} Ohio courts apply the burden shifting analysis of McDonnell Douglas v.
Green (1973), 411 U.S. 792, to FLSA retaliation claims. Adair v. Charter Cty. of Wayne
(C.A.6, 2006), 452 F.3d 482; Nicklas v. UPS, Inc. (N.D. Ohio Dec. 7, 2007), Case No.
1:07 CV 73, 2007 U.S. Dist. LEXIS 90463. In order to establish a prima facie case of
retaliation under the FLSA plaintiff must prove the following elements: 1) she engaged
in a protected activity under the FLSA; 2) her exercise of this right was known by the
employer; 3) thereafter, the employer took an employment action adverse to her; and 4)
there was a causal connection between the protected activity and the adverse
employment action. Id.
       {¶15} Once plaintiff establishes a prima facie case of retaliation, the burden shifts
to defendant to articulate a legitimate, non-retaliatory reason for its adverse employment
action. Id. If defendant provides a legitimate, non-retaliatory reason for its action, then
plaintiff must prove by a preponderance of the evidence that defendant's proffered
reason is not the true reason for the adverse employment action, but is a mere pretext
for illegal retaliation. Id. Plaintiff may demonstrate pretext by showing: 1) the proffered
reason had no basis in fact; 2) the proffered reason did not actually motivate the
defendant's adverse action; or 3) the defendant's proffered reason was insufficient to
motivate the adverse action. Kocsis v. Multi-Care Mgt., Inc. (C.A.6, 1996), 97 F.3d 876,
883.
       {¶16} Plaintiff asserts that her request for overtime wages and the subsequent
action taken by her union steward to obtain such overtime wages was protected activity
Case No. 2003-10198                                 -6-                                            ENTRY

under section 215(a)(3) of the FLSA.                However, 29 U.S.C. 215(a)(3) protects only
“employees who have filed a complaint or instituted or caused to be instituted any
proceeding under or related to [the FLSA].” Nicklas, supra. The plaintiff in Nicklas
raised various employment issues, including his contention that he was not being paid
properly for overtime, and he utilized the grievance process under a collective
bargaining agreement to address those issues. The district court in Nicklas noted that
the plaintiff had not instituted any action pursuant to the FLSA and the court determined
that filing a grievance for alleged violations of the collective bargaining agreement did
not constitute protected activity under the FLSA. Id.
          {¶17} The evidence shows that plaintiff resolved the issues concerning her
overtime pay through her union representatives and plaintiff has not established that
she either did file or could have filed a complaint or instituted proceedings under the
FLSA.         Inasmuch as plaintiff has failed to establish that she engaged in protected
activity, the court finds that she has not established a prima facie retaliation claim.
          {¶18} Even if plaintiff had engaged in protected activity, she would still have to
prove that BWC took an employment action adverse to her. As stated above, plaintiff
voluntarily returned to her former position as a claims specialist. Plaintiff contends that
the adverse employment action was being forced to accept a constructive demotion as
a result of being “harassed” by her supervisors through disciplinary actions including
“public chastising,” yelling, and issuing her both a counseling statement and an “action
plan.”2
          {¶19} The same factors apply to claims involving allegations of both constructive
demotion and constructive discharge. Kauffman v. Kent State Univ. (C.A.6, Apr. 1,

          2
          Although plaintiff has alleged constructive discharge as a distinct claim, it will be addressed as a

theory related to the retaliation claim. See State ex rel. Jelinek v. Schneider, Franklin App. No. 08AP-

957, 2010-Ohio-1220, ¶13-15.
Case No. 2003-10198                           -7-                                    ENTRY

1994), Case No. 93-3302, 1994 U.S. App. LEXIS 6557. “‘The test for determining
whether an employee was constructively discharged is whether the employer's actions
made working conditions so intolerable that a reasonable person under the
circumstances would have felt compelled to resign.’” Simpson v. Ohio Reformatory for
Women, Franklin App. No. 02AP-588, 2003-Ohio-988, ¶24, quoting Mauzy v. Kelly
Services, Inc., 75 Ohio St.3d 578, 1996-Ohio-265. The court must “‘determine whether
the cumulative effect of the employer's actions would make a reasonable person believe
that termination was imminent.’” Id., quoting Mauzy, supra.
          {¶20} With regard to the action plan, in her deposition, plaintiff testified that she
had already drafted her request to return to her former position on March 13, 2003, and
that the action plan was not presented to her until five days later, during a March 18,
2003 meeting with Durkin and Overton. Therefore, the court finds that the action plan
was not related to plaintiff’s desire to return to her former position.          Furthermore,
“institution of performance improvement plans does not constitute an objectively
unreasonable condition sufficient to show constructive discharge.” Rossi v. Alcoa, Inc.
(C.A.6, 2005), 129 Fed. Appx. 154, 159, citing Agnew v. BASF Corp. (C.A.6, 2002), 286
F.3d 307, 310.
          {¶21} Regarding the conduct of Durkin and Overton, the court notes that
plaintiff’s supervisors denied making certain comments that plaintiff claimed upset or
embarrassed her. Even assuming that plaintiff’s supervisors talked to her in a loud
voice or yelled on occasion, yelling alone does not constitute an adverse employment
action.     Campbell v. Mobile Solution Corp. (S.D. Ohio Mar. 2, 2010), Case No.
1:07cv1037, 2010 U.S. Dist. LEXIS 29446. “An employee has an obligation not to jump
to conclusions and assume that every conflict with an employer evidences a hidden
intent by the employer to terminate the employment relationship.” Simpson, supra, ¶25.
          {¶22} Although the conduct described by plaintiff may at times have been both
unprofessional and excessive, based upon the totality of evidence, the court finds that
Case No. 2003-10198                       -8-                                    ENTRY

such conduct is insufficient to show that a reasonable person under the circumstances
would have felt compelled to request a demotion. Accordingly, plaintiff cannot prevail
on her retaliation claim.


NEGLIGENT HIRING, SUPERVISION, OR RETENTION
       {¶23} The elements of a negligent retention claim are the same as those for
negligent supervision. Browning v. Ohio State Hwy. Patrol, 151 Ohio App.3d 798, 2003-
Ohio-1108, ¶67, citing Harmon v. GZK, Inc., Montgomery App. No. 18672, 2002-Ohio-
545.   The elements needed to establish a claim for negligent hiring, retention and
supervision are: “(1) the existence of an employment relationship; (2) the employee's
incompetence; (3) the employer's actual or constructive knowledge of such
incompetence; (4) the employer's act or omission causing plaintiff's injuries; and (5) the
employer's negligence in hiring or retaining the employee as the proximate cause of
plaintiff's injuries.” Peterson v. Buckeye Steel Casings (1999), 133 Ohio App.3d 715,
729, citing Evans v. Ohio State Univ. (1996), 112 Ohio App.3d 724, 739; see also
Payton v. Receivables Outsourcing, Inc., 163 Ohio App.3d 722, 2005-Ohio-4978.
Liability for negligent retention arises where an “employer chooses to employ an
individual who ‘had a past history of criminal, tortious, or otherwise dangerous conduct
about which the [employer] knew or could have discovered through reasonable
investigation.’” Abrams v. Worthington, 169 Ohio App.3d 94, 2006-Ohio-5516, ¶14,
quoting Byrd v. Faber (1991), 57 Ohio St.3d 56, 61. It is axiomatic that a claim of
negligent hiring, supervision, and retention against an employer is not viable without an
underlying act of negligence by an employee that causes injury or loss. Lehrner v.
Safeco Ins./Am. State Ins. Co., 171 Ohio App.3d 570, 2007-Ohio-795, ¶42.
       {¶24} It is undisputed that Durkin and Overton were employees of BWC;
however, plaintiff failed to establish any of the other above-referenced elements.
Specifically, plaintiff has failed to show that either Durkin or Overton were incompetent.
Case No. 2003-10198                         -9-                                   ENTRY

Plaintiff alleges only that “Durkin was incompetent to manage female subordinates.”
(Trial brief, page 24.) Plaintiff alleges that Durkin spoke loudly and became angry with
Janis Depasqua and that Depasqua complained about Durkin’s conduct in 1999. John
Sled, a former service officer manager for BWC, confirmed that Depasqua complained
that she became uncomfortable when Durkin looked over her shoulder and “lurked
behind her” while she sat at her desk. (2007 Sled deposition, pages 11-12.) However,
Sled also testified that, at a subsequent meeting, Depasqua “basically recanted the
majority of her concerns about George. She – as I remember, she said she had some
additional time to think about it and that perhaps she had been overreactive in
expressing some of her concerns about George.” (2010 Sled deposition, page 20, lines
2-6.)
        {¶25} Plaintiff has not presented any convincing evidence that Durkin had either
a propensity toward aggression or an inability to supervise female subordinates which
would render him an incompetent employee. Similarly, there was no evidence upon
which this court could conclude that Overton was incompetent. Inasmuch as plaintiff
has failed to prove by a preponderance of the evidence that either Durkin or Overton
were incompetent in performing their duties as supervisors, plaintiff cannot prevail on
her claim of negligent hiring, retention, and supervision.
        {¶26} For the foregoing reasons, the court finds that plaintiff has failed to prove
any of her claims by a preponderance of the evidence. Accordingly, judgment shall be
rendered in favor of defendants.
Case No. 2003-10198                      - 10 -                                      ENTRY




                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us



LAURA L. MORWAY

      Plaintiff

      v.

OHIO BUREAU OF WORKERS’ COMPENSATION, et al.

      Defendants

Case No. 2003-10198

Judge Joseph T. Clark

JUDGMENT ENTRY


      {¶27} This case was submitted for decision on the issue of liability. The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendants.       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.



                                         _____________________________________
                                         JOSEPH T. CLARK
                                         Judge
Case No. 2003-10198               - 11 -                              ENTRY

cc:


Amy S. Brown                        John T. Heino
Randall W. Knutti                   Richard J. Thomas
Assistant Attorneys General         6 Federal Plaza Central, Suite 1300
150 East Gay Street, 18th Floor     Youngstown, Ohio 44503
Columbus, Ohio 43215-3130

AMR/dms

Filed December 19, 2011

To S.C. reporter March 20, 2012
