Davenport v. Big Brothers & Big Sisters of Greater Miami Valley, Inc.Davenport v. Big Brothers & Big Sisters of Greater Miami Valley, Inc.
Rendered on the 4th day of June, 2010.
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KONRAD KUCZAK, Atty. Reg. #11186, 130 West Second Street, Suite 1010, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
SUSAN BLASIK-MILLER, Atty. Reg. #0005248, and LINDSAY JOHNSON, Atty. Reg. #0077753, One South Main Street, Suite 1800, Dayton, Ohio 45402
Attorney for Defendant-Appellee
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BROGAN, J.
{¶ 1} Gloria Davenport appeals from the trial court‘s entry of summary judgment in favor of appellees Michael Parks, Lisa Brown, and Big Brothers/Big Sisters of the Greater Miami Valley (“Big Brothers/Big Sisters“) on her complaint
{¶ 2} Davenport advances three assignments of error on appeal. First, she contends the trial court erred in dismissing her claims against Parks and Brown on statute-of-limitation grounds. Second, she claims the trial court erred in failing to give her a reasonable opportunity to supplement the record after declining to take judicial notice of evidentiary materials that had been filed in a different case. Third, she asserts that the trial court erred in entering summary judgment in favor of Big Brothers/Big Sisters.
{¶ 3} The record reflects that Davenport is a former employee of Big Brother/Big Sisters. She originally filed suit against the organization and other defendants in December 2003. That action was removed to federal court but eventually was remanded to Montgomery County Common Pleas Court. After Big Brothers/Big Sisters obtained a partial summary judgment in the 2003 case, Davenport voluntarily dismissed the action without prejudice in September 2007.
{¶ 4} Davenport re-filed the present case against Big Brothers/Big Sisters in 2008 and added two new defendants, Parks and Brown. Her complaint contained three counts. The first count alleged that Davenport had been subjected to “retaliation and reprisal in the workplace” in response to her complaint to the Department of Labor about a salary cut and in response to her informing Parks that she had consulted an attorney regarding potential legal action. Count two alleged wrongful discharge “in violation of Ohio public policy that protects a worker from retaliation and reprisal in the workplace[.]” Count three alleged wrongful discharge “in violation of a public policy in Ohio that permits the tape recording of a staff meeting
{¶ 5} In December 2008, Parks and Brown moved to dismiss the claims against them under
{¶ 6} Thereafter, in July 2009, Big Brоthers/Big Sisters moved for summary judgment. The organization argued that there was no genuine issue of material fact as to whether Davenport had been wrongfully terminated or subjected to retaliation and reprisal. Big Brothers/Big Sisters insisted that she had been fired for legitimate, job-performance reasons. In a memorandum opposing summary judgment, Davenport asked the trial court to take judicial notice of evidentiary materials that had been filed in the 2003 case she voluntarily had dismissed. In a September 15, 2009 summary judgment ruling, the trial court found judicial notice improper and proceeded to resolve Big Brothers/Big Sisters’ motion based on the evidence that had been filed in this case. In so doing, the trial court found the organization entitled
{¶ 7} Davenport‘s first assignment of error challenges the trial court‘s dismissal of her claims against Parks and Brown on statutе-of-limitation grounds. Although her complaint does not mention
{¶ 9} In response, Parks and Brown pointed out that
2008-Ohio-200, ¶84; see, also, In re B.M.R., Miami App. Nos. 2005 CA 1, 2005 CA 18, 2005-Ohiо-5911, ¶4-6. Therefore, Davenport‘s appeal from the trial court‘s dismissal of her claims against Parks and Brown is timely despite the passage of more than six months.
{¶ 10} In its ruling, the trial court agreed with Parks and Brown that Davenport‘s complaint did not allege retaliation for opposing one of the types of discrimination prohibited by the statute. The trial court further noted that the complaint did not allege retaliation against Davenport for participating in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code. The trial court read the complaint as alleging only common-law retaliation and wrongful-discharge claims, which it found were subject to a four-year statute of limitation. The trial court further determined that the allegations in Davenport‘s complaint established that the four-year limitation period had expired before she commenced her action against Parks and Brown. As a result, it sustained their
{¶ 11} We review a decision sustaining a
{¶ 12} In the present case, Davenport does not challenge the trial court‘s resolution of the statute-of-limitation issue in the context of a
{¶ 13} Reviewing the complaint in a light most favorable to Davenport, we find no suggestion that she was retaliated against for opposing discrimination against her
{¶ 14} Paragraph twelve alleges that Davenport subsequently wrote Parks a letter and complained about being harassed by Brown. It further alleges that she told Parks she had consulted an attorney and had contacted the Department of Labor about her reduction in pay and job transfer. Paragraph thirteen states that Parks met with Davenport and “bull[ied]” her about her letter to him. Paragraph fourteen alleges that a Big Brothers/Big Sisters board member offered to investigate Davenport‘s complaints. Paragraph fifteen asserts that Davenport never heard from the board member and that Parks never addressed her reduced salary. Paragraph sixteen of the complaint alleges that Brown gave Davenport another notice regarding poor job performance. Paragraph seventeen asserts that Davenport was placed on “non-disciplinary probation.” Nothing in any of these paragraphs suggests any
{¶ 15} Paragraph eighteen of the complaint states that Davenport once expressed “displeasure” to someone about Big Brothers/Big Sisters’ alcohol-related fund raising events. Paragraph nineteеn alleges that Davenport tape-recorded an organizational staff meeting in March 2003. Paragraph twenty asserts that Brown confiscated the tape, despite the absence of a company policy prohibiting the recording of meetings. Paragraph twenty-one alleges that Davenport was denied a raise due to her allegedly poor job performance and that she received another written performance warning. Nothing in any of these paragraphs supports even an inference of retaliation arising from discrimination on the basis of religion, sex, or ancestry. At best, they suggest retaliation for complaining about the fund raising events or tape recording a meeting.
{¶ 16} Paragraph twenty-two of the complaint describes an April 27, 2003 “sex-toy party” held by a Big Brothers/Big Sisters employee named Arlene Finch. It
{¶ 17} In opposition to this conclusion, Davenport asserts on appeal that retaliation against her for opposing the sex-toy party is discrimination on the basis of her sex and religion, bringing her complaint within the scope of
{¶ 18} Based on the foregoing reasoning, we reject Davenport‘s argument that the trial court should have construed her complaint, which did not even mention
{¶ 19} In her second assignment of error, Davenport claims the trial court erred in failing to give her a reasonable opportunity to supplement the record after declining to take judicial notice of evidentiary materials that she had filed in her earlier case against Big Brothers/Big Sisters.
{¶ 20} As set forth above, Davenport initially sued Big Brothers/Big Sisters and
{¶ 21} In opposition to summary judgment, Davenport did not present any evidentiary materials. Instead, in her memorandum opposing summary judgment, she made the following argument: “Defendants have filed evidentiary materials all of which were filed with the court when Defendants’ prior Motion for Summary Judgment in Case No. 2003 CV 08762 was determined. Since this court is authorized to take notice of its own record, Plaintiff requests this court take notice of all of the evidentiary materials which were filed and considered by the court in the disposition of the prior Motion for Summary Judgment.” (Doc. #35 at 2). Davenport then block quoted extensively from the trial court‘s summary judgment ruling in the earlier case. (Id. at 3-8). Finally, she urged the trial court to “reitеrate its prior ruling.” (Id. at 11).
{¶ 22} In reply, Big Brothers/Big Sisters argued that the trial court could not take judicial notice of evidentiary materials Davenport had filed in the former action, which had been voluntarily dismissed and had become a nullity. The organization further argued, based on the evidentiary materials submitted in the present case, that
{¶ 23} Following Big Brothers/Big Sisters’ reply, the trial court filed an August 6, 2009 entry establishing a submission date for summary judgment. Among other things, the entry set dates for the parties to file their evidentiary materials in support of or in opposition to summary judgment. (Doc. #38). Despite knowing that Big Brothers/Big Sisters had taken the position that judicial notice was improper, Davenport did not file any evidentiary materials. Instead, on August 9, 2009 she filed a “rebuttal memorandum,” in which she insisted that a trial court could take judicial notice of its records from a prior case. (Doc. #39). Thereafter, on September 15, 2009, the trial court enterеd summary judgment in favor of Big Brothers/Big Sisters. At the outset of its analysis, the trial court disagreed with Davenport and found that it could not take judicial notice of evidence filed in the earlier case.
{¶ 24} A court certainly may take judicial notice of the record and proceedings in the case before it. Charles v. Conrad, Franklin App. No. 05AP-410, 2005-Ohio-6106, ¶26. It may not take judicial notice of prior proceedings in another case, however, even one involving the same parties and subject matter. Id. This prohibition is particularly strong when a court attempts to review testimony from an earlier case. Hutz v. Gray, Trumbull App. No. 2008-T-0100, 2009-Ohio-3410, ¶36. As the Ohio Supreme Court recognized in National Distillers & Chemical Corp. v. Limbach, 71 Ohio St.3d 214, 217, 1994-Ohio-33, it is inappropriate to take judicial notice of the adjudicative facts from prior cases. In National Distillers, the court declined to take judicial notice of exhibits that had been entered into evidence in an earlier case between the same parties. Id. at 215. Similarly, the trial court in the
{¶ 25} We disagree. Prior to the trial court‘s entry of summary judgment, Big Brothers/Big Sisters filed a memorandum pointing out the inapplicability of judicial notice. Although Davenport still had time to submit her evidence, she responded by insisting, incorrectly, that judicial notice could be taken. The trial court was not obligated to delay the summary judgment proceedings to reiterate what Big Brothers/Big Sisters already had pointed out. Nor was the trial court obligated to act sua sponte to grant Davenport leave to file her evidence. Davenport never requested such leave. Instеad, she proceeded on the assumption that filing her evidence was unnecessary. The trial court did not abuse its discretion in holding her to the consequences of her position.
{¶ 26} Davenport‘s citation to
{¶ 27} In her third assignment of error, Davenport contends the trial court erred in entering summary judgment in fаvor of Big Brothers/Big Sisters. Even without any competing evidence from her, Davenport claims Big Brothers/Big Sisters failed to meet its burden of demonstrating its entitlement to judgment as a matter of law.
{¶ 28} We review an appeal from summary judgment de novo. Baiko v. Mays (2000), 140 Ohio App.3d 1, 10. Pursuant to
{¶ 29} In the present case, Davenport advances two reasons why she believes summary judgment was inappropriate. First, she contends Big Brothers/Big Sisters failed to present any evidence establishing that she (1) did not complain to Parks about being harassed by Brown or (2) did not notify Parks that she had consulted and attorney and contacted the Department of Labor regarding her reduction in pay and job relocation. Thereforе, Davenport claims Big Brothers/Big Sisters failed to meet its initial burden, under
{¶ 30} Davenport‘s first argument requires little discussion. Even though Big Brothers/Big Sisters introduced no evidence to refute the allegation in her complaint that she complained to Parks and contacted an attorney and the Department of Labor, this alone does not preclude the entry of summary judgment against her. It means only that Big Brothers/Big Sisters did not dispute one element of her retaliation claims, to wit: that she engaged in protected activity or conduct that Ohio public policy supports. But there are other elements to a retaliation claim.
{¶ 31} “Claims that an employer has taken an adverse employment action against an employee for engaging in a protected activity may be based on existing statutes or a common-law cause of action.” Edwards v. Dubruiel, Greene App. No. 2002-CA-50, 2002-Ohio-7093, ¶36. “To prove a claim of retaliation [under
{¶ 32} In our analysis above, however, we concluded that Davenport‘s complaint set forth common-law retaliation claims. “The Ohio Supreme Court has established a common-law cause of action for retaliation by an employer. Greeley v. Miami Valley Maintenance Contrs., Inc. (1990), 49 Ohio St.3d 228, 233-34, 551
{¶ 33} The fact that Big Brothers/Big Sisters may not have disputed whether Davenport complained to Parks, spoke to an attorney, or contacted the Department of Labor does not mean summary judgment was inappropriate. The organization could have sought, and in fact did seek, summary judgment based on the state of the evidence as it related to other elements of her retaliation claims.
{¶ 34} This leads us to Davenport‘s second argument, which is that Big Brothers/Big Sisters’ own evidence reveals a genuine issue of material fact over whether its proffered reasons for her termination were pretextual. In any retaliation case, a plaintiff must establish a causal connection between the protected activity she engaged in—whether that activity is explicitly protected by
{¶ 35} Upon review, we find no genuine issue of material fact as to whether Big Brothers/Big Sisters’ proffered reasons for firing Davenport were a pretext for unlawful retaliation. The summary judgment evidence consists of deposition testimony from Parks, Brown, and Finch. Brown‘s deposition includes, as an exhibit, a copy of Davenport‘s termination letter. The April 30, 2003 letter, which was written by Brown, reads as follows:
{¶ 36} “Dear Gloria,
{¶ 37} “I‘m sorry to inform you that, effective at the close of business today, you will be dismissed from Big Brothers Big Sisters for failure to meet the terms of your probation.
{¶ 38} “On February 3, after receiving CSDS training, your employment duties and job title were modified and you were placed on a 90-day probationary status, which concludes at the end of business today. Since then, your overall performance has not developed as expected. On March 14, 2003, you received a final written
{¶ 39} “Additionally, during your probationary period, you were evaluated on your ability to spend your time and the time of others on what‘s important and also your role as a team member of the Agency. One such example of non-compliance was your unauthorized tape-recording of the March TEAM meeting and the subsequent actions and reactions that immediately followed. More recently was your prohibited tampering (copying files to a disk to take home and deleting files) with the computer located in your office. This action resulted in you having to use another co-worker‘s office and has created a need to again repair damages to the unit due to your actions.
{¶ 40} “The situations described above are just a few examples of your inability to meet expectations. Because you have not met the terms of your probation, we must terminate your employment. Enclosed you will find a check for wages through today. You will be receiving information from the Agency accountant of your COBRA rights and eligibility. I wish you well in your career.”
{¶ 41} In their deposition testimony, Parks and Brown elaborated on the events that led to Davenport‘s termination. Brown‘s testimony reflects that Davenport‘s problems began before she was placed on probation. Brown became Davenport‘s supervisor in 2001. (Brown depo. at 184-186). Thereafter, Davenport
analysis to that particular adverse employment action.
{¶ 42} The record contains another performance correction notice from Brown to Davenport in October 2002. (Id. at 176, and depo. exhibit 9). This notice reflected that Davenport had received three prior warnings in the summer of 2002. It furthеr noted that she had left work early, attended unauthorized training, failed to complete an assignment on time, modified a program in a way that cost the agency money, and failed to schedule required supervisory meetings. Finally, the notice criticized Davenport for six of her seven files failing an audit.
{¶ 43} Thereafter, in 2003, the national Big Brothers/Big Sisters organization
{¶ 44} Davenport received a final performance correction notice from Brown on March 14, 2003. (Id. at 178 and depo. exhibit 10). This notice cited her for substandard work performance and failure to follow departmental policies and procedures. In particular, it noted that Brown had directed Davenport several times to use the agency‘s van for work-related travel and that Davenport had continued not to do so. The notice also indicated that Davenport continued to leave the workplace early without authorization despite being warned against doing so.
{¶ 45} In March 2003, Brown also criticized Davenport for tape-recording a staff meeting without authorization and without informing anyone. Although the agency had no written policy prohibiting such conduct, Brоwn viewed it as an unethical invasion of privacy. (Id. at 178-180). She confiscated the tape. Davenport later sent Brown an e-mail about the incident. Brown responded with her own e-mail, stating in part:
{¶ 46} “I recommend that during your current probationary status, you
{¶ 47} Around the same time, an issue occurred involving Davenport‘s work computer. The incident involved Davenport deleting files. (Id. at 142-143). The files involved were not work files such as documents but operational files that make “a computer stop functioning.” (Id. at 144). While Brown conceded that the deletion could have been an accident, what Davenport did “went beyond pushing a wrong button and deleting a file that you created.” (Parks depo. at 87). Arlene Finch, who was responsible for repairing the computer, testified that she had been called to recover files several other times after Davenport had “crashed” the system. (Finch depo. at 35).
{¶ 48} Finch added that she was not surprised when Davenport was terminated. She recalled that Davenport “just complаined about everything” and that “a lot of her performance was not what the agency expected.” (Id. at 18-19). Finch
{¶ 49} On appeal, Davenport asserts that the proffered reasons for her termination were pretextual. Under her third assignment of error, Davenport contends she actually was fired because she complained to Parks about Brown, spoke to an attorney, and contacted the Department of Labor about a pay dispute. Even assuming, arguendo, that these acts constitute protected activities and that discharging Davenport for engaging in them would violate public policy, we see no genuine issue of material fact as to whether she was fired in retaliation for engaging in those acts.
{¶ 50} Confronted with evidence of legitimate, non-discriminatory reasons for her discharge, a plaintiff such as Davenport must show a triable issue of fact on the issue of pretext. She may meet this burden by presenting evidence that Big Brothers/Big Sisters’ proffered reasons (1) had no basis in fact, (2) did not actually motivate her discharge, or (3) were insufficient to motivate her discharge. Wysong v. Jo-Ann Stores, Inc., Montgomery App. No. 21412, 2006-Ohio-4644, ¶13. In the
{¶ 51} Upon review, we find Davenport‘s argument to be without merit. As an initial matter, the uncontroverted summary judgment evidence, outlined above, reveals that the events leading to Davenport‘s termination were larger than those three incidents. Davenport‘s termination letter itself indicated that her “overall performance has not developed as expected.” The letter stressed that the incidents involving the van, the tape recording, and her computer were merely “examples of [her] inability to meet expectations.” Moreover, the termination letter reveals that the problem with the tape recording was not simply the act of recording itself but Davenport‘s “subsequent actions and reactions” to the incident, which Brown found to be a waste of time.
{¶ 52} Based on the deposition testimony cited above, we find no genuine issue of material fact on the issue of pretext. The evidence before us establishes that Davenport was fired for generally poor job performance over an extended period of time. Davenport‘s arguments about the van, the tape recording, and her computer fail to raise a genuine issue of material fact. Although Big Brothers/Big Sisters did not
{¶ 53} At the time of the recording incident, the agency also lacked a policy prohibiting employees from tape recording staff meetings. One other employee had tape recorded meetings in the past, but she was a secretary who kept the organization‘s minutes. (Parks depo. at 82; Brown depo. at 123). This does not mean that Parks and Brown properly could not reprimand Davenport, who was not a secretary, once it was discovered that she had taped a meeting without informing anyone. Parks testified that the issue immediately raised confidentiality and privacy concerns. (Parks depo. at 84). He and Brown expressed those concerns to Davenport and instructed her that it was not her job to tape record meetings. (Parks depo. at 88; Brown depo. at 134). Parks then considered the matter closed. (Parks depo. at 88-89). As set forth in her termination letter to Davenport, Brown‘s biggest problem with the incident appears to have been Davenport‘s reaction, which included continuing to debate the matter through e-mail and requesting an inquiry into what was so incriminating about the staff meeting. Brown believed that Davenport‘s response to the incident represented “an incredible waste of time.” (Brown depo. at
{¶ 54} Finally, with regard to the computer, Brown conceded that Davenport‘s deletion of оperating files may have been an accident. This does not mean, however, that Davenport‘s impairment of the agency‘s computers legitimately could not factor into the termination decision. As set forth above, Finch testified that she had been called on before to repair computer “crashes” caused by Davenport. (Finch depo. at 35). Finch attributed Davenport‘s problems to a “lack of knowledge on the computer.” We see no inference of pretext arising from the fact the agency took this deficiency, and the problems it created, into consideration when deciding to fire Davenport.
{¶ 55} At best, Davenport‘s lawsuit boils down to retaliation claims based solely on temporal proximity. She alleges in her complaint that she informed Parks about the school-enrollment issue involving Brown‘s daughter in the spring of 2002. The complaint further alleges that Davenport told Parks on July 28, 2002 that she had consulted an attorney and had contacted the Department of Labor regarding a reduction in her pay and a related job transfer from Preble County to Dayton.7 The complaint also alleges that Davenport tape-recorded the staff meeting on March 10, 2003. Finally, the complaint alleges that she failed to attend the aforementioned sex-toy party on April 27, 2003. As set forth above, she was fired on April 30, 2003. Davenport suggests in her complaint that her poor performance reviews and ultimate termination were in retaliation for her complaint to Parks about the school-enrollment
{¶ 56} The judgment of the Montgomery County Common Pleas Court is affirmed.
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DONOVAN, P.J., and GRADY, J., concur.
Copies mailed to:
Konrad Kuczak
Susan Blasik-Miller
Lindsay M. Johnson
Hon. Timothy N. O‘Connell
Notes
We note the existence of a defect, however, that saves Davenport from having a partially untimely appeal. At the conclusion of its entry dismissing the claims against Parks and Brown, the trial court properly included a notation directing the clerk of courts to serve each party, through counsel, with notice of the ruling and its date of entry upon the journal. See
As set forth above, Davenpоrt explicitly argued in the trial court that all of her claims were brought under