2004 Ohio 3445 | Ohio Ct. App. | 2004
{¶ 2} This is the second appeal in this employment case. Hann was hired as the first full-time female police officer for Perkins Township in August 1996. In January 1998, she filed a complaint for sexual discrimination, harassment, and retaliation in violation of R.C.
{¶ 3} "The trial court committed reversible error by directing a verdict in defendants' favor."
{¶ 4} Hann argues that the trial court should not have granted a directed verdict to appellees because the law of the case doctrine prohibited a directed verdict in their favor and because there was substantial, competent evidence on the record to support her claims. Appellees respond that some of Hann's claims were barred by either res judicata or the law of the case doctrine and that Hann failed to establish her claim for retaliation and discrimination because she did not suffer an adverse employment action.
{¶ 6} Appellees also contend that the law of the case doctrine applies but, instead, that it applies against Hann. They argue that Hann did not appeal the directed verdict granted to the township on her sex discrimination claim for events occurring before June 25, 1997. She also did not appeal her harassment claim against Sergeant Matthews. Consequently, in her second trial she could not present a claim for sex discrimination based on the township's failure to investigate her sexual harassment complaint against Sergeant Matthews.
{¶ 7} Under the law of the case doctrine, the "decision of a reviewing court * * * remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels." Pipe Fitters Union Local No. 392 v. Kokosing Constr.Co., Inc. (1998),
{¶ 8} The facts in Hann I and in the second trial were not substantially the same. Evidence concerning Hann's claims for sexual harassment and intentional infliction of emotional distress was, in large part, eliminated due to Hann's failure to appeal those claims. Therefore, evidence of sexual harassment, which potentially may have also supported her claim for retaliation, was missing from the second trial.2 Furthermore, this court did not pass upon the merits of Hann's claims inHann I. We simply determined that the trial court erred in Hann I when it gave a confusing answer to the jury's question. A reversal upon one ground alone does not necessarily amount to an implied approval of everything else done in the trial to the extent of establishing the law of the case. Thomas v. Viering (1934), 18 Ohio Law Abs. 343. In addition, Hann's claim for sex discrimination against the township concerns the township's failure to investigate Hann's complaint for retaliation. We, therefore, conclude that the law of the case doctrine does not apply.
{¶ 10} "When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue."
{¶ 11} In ruling on a motion for directed verdict, a court must neither consider the weight of the evidence nor the credibility of the witnesses. Strother v. Hutchinson (1981),
{¶ 13} "It shall be an unlawful discriminatory practice:
{¶ 14} "* * *
{¶ 15} "(I) For any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections
{¶ 16} Case law interpreting and applying Title VII of the Civil Rights Act of 1964, Section 2000e et seq., Title 42, U.S. Code is generally applicable to cases involving R.C. Chapter 4112. Ohio Civ.Rights Comm v. David Richard Ingram, D.C., Inc. (1994),
{¶ 17} In this case, it is undisputed that Hann engaged in a protected activity by filing a complaint with the OCRC. Therefore, we must examine whether there was substantial competent evidence of an adverse employment action and a causal link to the protected activity.
{¶ 18} Whether an employment action gives rise to an adverse employment action is to be determined on a case-by-case basis. Tessmerv. Nationwide Life Ins. Co. (Sept. 30, 1999), 10th Dist. No. 98AP-1278. The Sixth Circuit has stated that an adverse employment action involves "significantly diminished material responsibilities," including "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished responsibilities, or other indices that might be unique to a particular situation." Kocsis v. Multi-Care Mgmt. (C.A. 6, 1996),
{¶ 19} Hann alleges that she suffered an adverse employment action because she was constructively discharged. Constructive discharge does qualify as an adverse employment action. See Hoon v. Superior Tool Co.
(Jan. 24, 2002), 8th Dist. No. 79821; Policastro v. NorthwestAirlines, Inc. (C.A. 6, 2002),
{¶ 20} In applying this test, "courts seek to determine whether the cumulative effect of the employer's actions would make a reasonable person believe that termination was imminent. They recognize that there is no sound reason to compel an employee to struggle with the inevitable simply to attain the `discharge' label. No single factor is determinative. Instead, a myriad of factors are considered, including reductions in sales territory, poor performance evaluations, criticism in front of co-employees, inquiries about retirement intentions, and expressions of a preference for employees outside the protected group." Id. at 589. A finding of constructive discharge "requires an inquiry into both the objective feelings of an employee, and the intent of the employer. A constructive discharge exists if working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Yates v. AvcoCorp. (C.A. 6, 1987),
{¶ 23} Four of the statements placed in Hann's personnel file detailed conversations in which Hann made sexual references or used "rough" language. These statements did not pertain to Hann's ability as a police officer. Officer Donald testified that he provided one such statement to McClung in order to defend himself on the chance he was included in Hann's OCRC complaint. An incident report by Lieutenant Douglas detailed Hann's confrontation with McClung after she learned that she would have to go through retraining. He characterized her attitude as inappropriate and insubordinate. A final statement by Corporal Parthemore, which contained some criticism of Hann's police work, will be discussed below. At trial, Hann disputed the factual content of these statements.
{¶ 24} When Hann learned that a negative review had been placed in her file after she went on medical leave, she immediately requested to see her personnel file, which she was able to do two days later. In it, she discovered the existence of the six statements. After reviewing the statements, Hann testified that she feared for her safety because she believed that her fellow officers were setting her up to be fired. Hann went back on medical leave two days after seeing her personnel file.
{¶ 26} Hann argues that her belief that she was setting up to be fired was reasonable given the subjective nature of her retraining and that neither of the reasons McClung gave her for her retraining were valid. Corporal Parthemore testified that his memorandum was not an actual evaluation. In the document, he stated that Hann had left on medical leave before he could conduct her review. He did, however, criticize Hann's police work in responding to a suicide call, in taking someone to the wrong Volunteers of America office, and in asking for assistance too much for things such as traffic citations. Parthemore testified that he included these criticisms because he felt he needed to memorialize them so he would not forget them since he did not know how long Hann would be on medical leave.
{¶ 27} Hann also argues that she was only on medical leave for 70 — 80 days, an insufficient length of time to be required to go through retraining. The FTO policy does mandate retraining under certain circumstances. It states:
{¶ 28} "I. Purpose
{¶ 29} "A. The Perkins Township Police Department's Field Training and Evaluation Program (FTO) is a part of the police selection process that combines pre-field training with objective evaluations to ensure that standards of a competent police officer are met.
{¶ 30} "B. The Field Training Program shall also be utilized to provide retraining and orientation to sworn officers returning to patrol from extended absences or other assignments.
{¶ 31} "1. Sworn officers who have been out of the patrol division for a period of more than 112 calendar days but less than 169 days shall be assigned to a FTO for a two (2) week period.
{¶ 32} "2. Sworn officers who have been out of the patrol division for a period of 169 calendar days or more will be assigned a FTO for a four (4) week period.
{¶ 33} "During the time such sworn officers are assigned with a FTO, they will be subject to the formalized evaluations required by recruit officers in training. The FTO will re-familiarize the officers with all departmental forms; any new General Orders or Patrol Orders; etc., in conjunction with the Lieutenant to ensure that the returning officer be provided such opportunities as are necessary to meet or receive certification or proficiency in skill areas such as Firearms, changes in the laws, etc."
{¶ 34} Nevertheless, the FTO policy allows for discretion on the part of the department:
{¶ 35} "IV. Extension of Training
{¶ 36} "A. Any FTO training step and/or probationary period may be extended for the recruit at the discretion of the Department.
{¶ 37} "B. Sworn officers returning to the patrol division after an extended absence or assignment, may receive such extensions of retraining and/or orientation as are felt to be necessary in the judgement [sic] of the Chief of Police, Lieutenant, and FTO Supervisor."
{¶ 38} Under the FTO policy if "[a]t any time during the FTO training stage a recruit is not performing at a satisfactory level, a recommendation for termination may be initiated." The policy further provides that the "Perkins Township Trustees and the Chief of Police will make the final decision reference dismissal."
{¶ 39} McClung testified that he has the authority to issue counseling or oral reprimands and written reprimands. He stated that anything beyond a written reprimand, such as suspension, reduction in rank, demotion, or firing, is decided by the township trustees. He also testified that more experienced male officers who had been on medical leave for an extended period of time had also been required to go through retraining, but did not state how long those officers had been on medical leave.
{¶ 40} Hann acknowledged on cross-examination that McClung told her that the trustees, not he, had decided that her probation was going to be extended. Hann contends that McClung told her that the township trustees follow his recommendations, although she presented no evidence that McClung recommended to the township that her probation period be extended or that she receive retraining.
{¶ 43} After reviewing the evidence, we agree with the trial court that Hann has failed to show that she was subjected to an adverse employment action. The "negative" statements in Hann's personnel file, by themselves, do not represent an adverse employment action. See Smart v.Ball State Univ. (C.A. 7, 1996),
{¶ 44} We also agree with the trial court that the cumulative effect of these factors does not rise to the level of constructive discharge. Hann relies heavily on her subjective fear for her safety after reading the statements in her personnel file and on her belief that she was being set up to be fired. Courts, however, apply an objective test when determining whether a constructive discharge has occurred. See Mauzy,
{¶ 45} Hann failed to present evidence of egregious working conditions upon return from medical leave in September 1997. While she may not have liked having Sergeant Matthews ride with her, and was angry about the statements placed in her personnel file, this does not amount to a situation where working conditions were so intolerable that a reasonable person would have felt compelled to resign. Not everything that makes an employee unhappy is an actionable adverse action. Manning v. MetropolitanLife Ins. Co. Inc. (C.A. 8, 1997),
{¶ 47} To establish a prima facie case of discrimination, a plaintiff must show (1) membership in a protected class; (2) qualification for the position; (3) an adverse employment action; and (4) replacement by a non-protected person. McDonnell Douglas Corp., supra at 802. "A plaintiff can also make out a prima facie case by showing, in addition to the first three elements, that `a comparable non-protected person was treated better.'" Mitchell v. Toledo Hosp. (C.A. 6, 1992),
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Handwork, P.J., Knepper, J., Lanzinger, J. concur.