Brown v. Corr. Reception Ctr.

• Decision Date: 27 February 2020
• Docket Number: No. 19AP-104,19AP-104
• Citation: 146 N.E.3d 621,2020 Ohio 684
• Parties: Alicia BROWN, Plaintiff-Appellant, v. CORRECTIONAL RECEPTION CENTER, Defendant-Appellee.
• Court: Ohio Court of Appeals

146 N.E.3d 621

2020 Ohio 684

Alicia BROWN, Plaintiff-Appellant,

v.CORRECTIONAL RECEPTION CENTER, Defendant-Appellee.

No. 19AP-104

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered February 27, 2020

On brief: Kemp, Schaeffer & Rowe, Co., LPA, and Erica A. Probst, Columbus, for appellant. Argued: Erica A. Probst.

On brief: Dave Yost, Attorney General, Eric A. Walker and Timothy M. Miller, Columbus, for appellee. Argued: Timothy M. Miller.

DECISION

BRUNNER, J.

{¶ 1} Plaintiff-appellant, Alicia Brown, appeals from a decision of the Court of Claims of Ohio entered on February 4, 2019 granting summary judgment against her and in favor of defendant-appellee, the Correctional Reception Center ("CRC"), on her claims for racial employment discrimination and retaliation. Her appeal is limited, however, to her claim for retaliation.¹ Because, on de novo review, we find there are genuine issues of fact as to each of the disputed elements of Brown's claim for retaliation, we reverse the granting of summary judgment against her on that claim and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} Brown began this case by filing a complaint against CRC for racial discrimination and retaliation after she confronted her boss with charges of racism on January 26, 2017, which allegedly caused him to immediately fire her. (Jan. 3, 2018 Compl. at ¶ 13, 16.) CRC answered, admitting that a confrontation took place in which Brown accused her boss, Anthony Ayers, of racism, but CRC denied that she was fired. (Jan. 30, 2018 Answer at ¶ 16-17.)

{¶ 3} After the parties conducted discovery, including ten depositions which were filed in the trial court and are part of the record,² CRC moved for summary judgment on both of Brown's claims. (Nov. 5, 2018 Mot. for Summ. Jgmt.) CRC argued that Brown was never an employee of CRC, but rather, was an employee of a staffing agency, Around the Clock Healthcare ("ATC"), which placed her at CRC as an independent contractor. Id. at 4-8. CRC also argued that while Brown left employment after the disagreement with Ayers, Ayers did not actually take steps to fire her and she was not terminated by CRC. Id. at 10-11. Alternatively, CRC argued that Brown could not point to a similarly situated person not of the protected class who received better treatment or who replaced Brown. Id. at 11-13. Finally, CRC argued that Brown had not engaged in protected conduct for which CRC could have retaliated. Id. at 13-15. In addition to the depositions already on file with the trial court, CRC attached affidavits of two of Brown's superiors, Raphael Lilly and Ayers, as well as interrogatory answers from Brown. (Lilly Aff., attached to Nov. 5, 2018 Mot. for Summ. Jgmt.; Ayers Aff., attached to Nov. 5, 2018 Mot. for Summ. Jgmt.; Mar. 21, 2018 Interrogs., attached to Nov. 5, 2018 Mot. for Summ. Jgmt.)

{¶ 4} In her deposition, Brown testified that she worked as a health information technician ("HIT") at CRC under an arrangement with a staffing company, ATC. (May 10, 2018 Brown Dep. at 24, 28-33.) Her supervisors were Anthony Ayers (white), Robert Swackhammer (white), and Raphael Lilly (black). Id. at 51-52. Her last day at CRC was the day of her disagreement with Ayers, January 26, 2017. Id. at 58.

{¶ 5} On that day, Ayers informed her and a nurse, Kristina Gerber, that someone had reported witnessing them using foul language and that he wanted them to cease such unprofessional behavior. Id. at 102-04, 107-09, 110-11. After Gerber excused herself from Ayers' office, Brown testified that she accused Ayers of harassing her, of racism, and of attempting to rid the workplace of black persons. Id. According to Brown, Ayers responded by telling her to "get out" or he would "have [her] escorted out of here." Id. at 110-11. Brown left the facility at that point before her shift was concluded. Id. at 58. She testified that, as she collected her things, she spoke to Swackhammer, telling him that she felt this was wrong. Id. at 111.

{¶ 6} Brown explained that her allegations regarding Ayers were based on a lengthy period of interactions with Ayers in which he appeared to excessively criticize her job performance relative to her coworkers. Id. at 128-29. She opined that this began after she took Lilly's side in a conflict between Lilly and Ayers that involved an internal investigation. Id. at 72, 77-79, 116-17. She observed that Ayers seemed to be generally more critical of black workers than white workers. Id. at 105. Ayers once remarked to her that he did not understand why Lilly who was "stupid" and "black" had been promoted. Id. She testified that Ayers and Swackhammer treated two white HITs better than they treated her, but also elaborated that those two enjoyed a rapport with Ayers and Swackhammer because they all went to bars after work together. Id. at 126-27. Brown denied indicating to anyone that she had been planning to leave the job voluntarily anyway. Id. at 112. However, she did admit to having written an e-mail to her recruiter at ATC regarding the incident. Id. at 30-31, 62-63. That e-mail (which was also made an exhibit to Wolf's deposition) reads as follows:

From: [REDACTED]

Sent: Thursday, January 26, 2017 3:03 PM

To: Tiffany Wolf [REDACTED]

Subject: Alicia Brown

To whom it may concern on this above date 1/26/2017 Mr.Tony Ayers said I need to talk to you across the hall so I went to the office then the Nurse Christy Gerber was in the room also he then stated that I had some complaints about you and Gerber that you 2 are dropping the F- bomb then I stated that I am not the one doing that that is Gerber then he stated no let's not point fingers I reply by saying ok what else i said then he said we are being to loud while they are examined intimates and we both are talking about each other when ones leaves the room and this was our warning next time it would be a right up that's all I am saying. Then I asked Mr.Ayers could I speak with him alone he said yes. I asked Mr.Ayer why are you nit picking about everything I do now I always done my job since I been here and I think this is a back lash about what's going on with you and Mr. Lilly and you have been harassing me since I had to write a report pertaining to that. For instance last week when I called your office and spoke with Robert Swackhammer telling him that alot of intimates don't have their labs back and they couldn't be scheduled and Mr.Ayers was in the background yelling she doesn't know what she is doing so Robert reply by saying come up to our office which I did so Robert started looking through the computer and he said she is right. Them Mr.Ayers still continued to search and then replied by saying you check all these labs I said yes he then said Um and that was it. So I said I wrote a report on you of workplace harassment and I planned on leaving today anyway because your not going to continue harassing me any more then he started yelling with all the intimates in the hallway get your stuff and get out now your no longer needed here i said you are very unprofessional and you don't like black people working up in Medway and everyone black here just leave or you get rid of them and then he also stated that's why Mr.Lilly got fined with 2days and I did not get anything out of that now. He then said I am going to report you to the Deputy Warden. Another incident Mr.Ayers is upset about he authorized me to log under a state work to help them out in ECW the new computer system so I was questioned about that and told them Mr.Ayers knew because he authorized me to he denied that. Mr.Ayers in my opinion is upset about a incident with a HIT(Female) that Mr.Ayers got caught feeling on this female Elice and a state Nurse reported what she caught them doing and the 2 HIT that work in Medbay and Tony Ayers they go out drinking on Fridays together so they have a personal relationship which out of work. If Mr. Ayers felt that I haven't ever did my job it's never been brought to my attention until this report I had to write about him. I been there at CRC for 2years and I has always been praise about my work from Anthony Ayers until these incident with him and Mr.Lilly and other workers. I Spoke with Deputy Warden of Oops Fredericks about Mr.Ayers harassing me 2 weeks ago and he told me to write a report so I did this morning at 9:42am I have that report in a incident report I gave it to him today.

(Sic passim.) (Wolf Dep., Ex. A.)

{¶ 7} Ayers agreed that he was one of Brown's supervisors in the sense that, as he and Swackhammer were healthcare administrators at CRC, they had supervisory authority over Lilly who, as the assistant healthcare administrator, had supervisory authority over all HITs. (July 18, 2018 Ayers Dep. at 6-10.) Yet, Ayers testified that he did not fire Brown and, in fact, had never fired a HIT. Id. at 15. He explained that to fire someone he would have had to have involved the deputy warden. Id. at 29-30. He admitted, however, that he wrote an incident report about Brown regarding a disagreement between them. Id. at 16-18. According to Ayers, he received a complaint from an unnamed "advanced level provider" that Brown and Gerber were yelling, cursing, and being unprofessional. Id. at 62-63. After confirming the report with the other "advanced level providers" in the area, he went to talk to Gerber and Brown and invited them to his office. Id. Gerber promised to clean up her language, but Brown denied using inappropriate language and asked to talk to him privately. Id. at 63. Gerber left. Id. After Gerber stepped out, Brown began to accuse Ayers of harassing her and nit-picking her work, she called him a racist, and accused him of trying to get rid of all the black employees. Id. at 16-18, 64-65. She continued yelling these accusations as she left the room and began to pack up. Id. at 16-18, 65-66. Ayers stated that the reason he completed an incident report was because Brown was yelling these allegations as she left his office in...