Dove v. Ohio Dep't of Rehab. & Corr.

• Citation: 2022 Ohio 4836
• Decision Date: 21 December 2022
• Docket Number: 2019-00969JD
• Parties: KIMBERLY DOVE Plaintiff v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant
• Court: Court of Claims of Ohio

2022-Ohio-4836

KIMBERLY DOVE Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION Defendant

No. 2019-00969JD

Court of Claims of Ohio

December 21, 2022

Sent to S.C. Reporter 1/12/23

DECISION OF THE MAGISTRATE

ROBERT VAN SCHOYCK MAGISTRATE JUDGE

{¶1} Plaintiff was formerly employed with defendant as a chaplain at Lebanon Correctional Institution (LeCI). As set forth in her amended complaint, plaintiff raises claims of assault and battery arising from a September 20, 2018 incident involving defendant's employee, Marva Allen, who at the time was a deputy warden at LeCI. Plaintiff also claims that defendant subsequently discriminated against her on account of a disability in violation of the Americans with Disabilities Act (ADA) and R.C. Chapter 4112 by denying her request for an accommodation in the form of transferring Allen or herself to a different facility. While the amended complaint also requested that the court determine whether Allen is entitled to personal immunity under R.C. 9.86, plaintiff withdrew the request at the beginning of trial.

{¶2} The case was tried before the magistrate. For the reasons stated below, judgment is recommended in favor of defendant.

Summary of Testimony

{¶3} Plaintiff testified that her first association with defendant was as a volunteer, first at Warren Correctional Institution in 2006 and later Dayton Correctional Institution. Plaintiff testified that she went on to serve as a chaplain at Dayton Correctional Institution on a contract basis from 2012 to 2016, at which time she was hired as an employee of defendant to serve as a chaplain at LeCI. Plaintiff identified Defendant's Exhibit K as the position description for her role at LeCI, which was part of a collective bargaining unit.

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{¶4} Plaintiff testified that she had good working relations with Warden Tom Schweitzer and Deputy Warden Robert Welch, who was her supervisor, when she began working at LeCI and received positive performance reviews. But in 2017, plaintiff stated, the dynamic changed when Allen replaced Welch as her supervisor. According to plaintiff, Allen was "very mean" to her and their relationship was "bad". Plaintiff described how, after an incident where Allen berated her over the color of an ink pen she used, she told the warden she was going to resign, but after being reassured that she was doing a good job and that the warden would talk to Allen about her behavior toward plaintiff, she chose not to resign. The next day, plaintiff stated, Allen confronted her in her office and said she knew plaintiff had talked to the warden and she advised plaintiff that "people that try to get me, get got."

{¶5} Regarding the incident that gave rise to this lawsuit, plaintiff testified that Allen and Shelby Kirby, a corrections officer who was temporarily serving as a chaplain, were meeting in plaintiffs office to discuss a banquet the prison was holding that weekend to recognize volunteers. Plaintiff stated that when an alarm went off because of an inmate disturbance, Allen left the room momentarily and upon returning said that OC (oleoresin capsicum) or pepper spray had been deployed. Plaintiff explained that, having never seen pepper spray used, she walked out of the room and went to look through a window into the hallway to see the cloud of spray, but then she heard someone say "don't do that to her", which caused her to fear being harmed (potentially by an inmate), and Allen then put her hands on plaintiff and said "you want to see?" and apparently opened the door into the contaminated hallway. Plaintiff stated that she tried to back away but Allen prevented her and did not let go until Kirby came over. Plaintiff recalled feeling a burning sensation in her throat from the pepper spray. According to plaintiff, not knowing how to respond and not wanting to show weakness given that there were inmate porters working in the area, she went over to Allen and threw her hands up and said "this is how you train me?" because they had just discussed how she had no training about pepper spray and thus wanted to go look into the hallway and see it. When asked about a security camera video recording of the incident, which lacked any audio, plaintiff denied that she was laughing, explaining instead that she was choking.

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{¶6} After the meeting concluded, plaintiff spoke with Kirby about the incident and they prayed together, according to plaintiff. The next morning, plaintiff stated, she broke down emotionally and Kirby told her she needed to file an Incident Report and showed her how to do so. Plaintiff identified Exhibit 4 as the Incident Report she submitted that day.

{¶7} While at LeCI for the volunteers' banquet that weekend, plaintiff stated, she met with Chae Harris, who had recently become the new warden, and informed him of the incident. Plaintiff recalled that after Harris reviewed a video of the incident, he assured her that it would not happen again on his watch. On Monday, plaintiff stated, Harris told her that Allen would no longer supervise her and instead she would be supervised by another deputy warden, and he also told her that he had ordered Allen to stay out of the chapel area and to stay away from her. Plaintiff testified that when she returned to the chapel, however, she saw in the logbook that Allen had visited the area while she was talking to Harris; as plaintiff explained, the logbooks are kept to record when staff members enter and exit certain areas of the prison. Also that day, plaintiff stated, she noticed that the inmates were not being as friendly to her as usual, and she understood from one of them that Allen told them plaintiff was taking some of their privileges away.

{¶8} On Tuesday, plaintiff stated, she went to speak with the head of human resources at LeCI, Chris Brown, and Allen briefly stopped by, and when she returned to the chapel she heard from another chaplain that Allen had been there but she did not see Allen's name in the logbook. As plaintiff left work on Tuesday, the front entry officer told her that Allen's car was parked near plaintiff's and told her to wait until Allen left. Plaintiff testified that when she came to work on Wednesday, she told Brown what had happened the evening before when she was leaving and Brown stated that he and Harris were aware and had already told Allen to use a designated deputy warden parking spot rather than parking in the general staff or visitation area. Plaintiff testified that she had no confidence that Harris and Brown could keep her safe from Allen.

{¶9} On Thursday, after some corrections officers told her that they watched the video of the incident with Allen, plaintiff testified that she felt overwhelmed and that Allen "was trying to get me." Plaintiff stated that she then called the Employee Assistance Program hotline that was posted on the wall, explained what she was going through, and

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decided she needed to take leave from her job. Plaintiff testified that the next day, Friday, September 28, 2018, she began a period of disability leave (also referred to by several witnesses as 'medical leave') and had a phone call with Brown in which she "talked about the inability for them to keep her away from me and I just couldn't do it."

{¶10} Brown remained plaintiff's point of contact while she was out on leave and they spoke often, in her recollection. Plaintiff testified that Brown discussed how to apply for disability leave benefits and instructed her to see a specific therapist to evaluate her in regard to her application, which was approved. Plaintiff stated that she also saw a psychiatrist of her own choice, Dr. Chole Mullen, beginning on November 13, 2018, and Dr. Mullen diagnosed her with major depression and acute stress disorder and filled out forms in support of plaintiff's disability leave indicating that she was unable to work. (Plaintiff's Exhibit 13; Defendant's Exhibit L.) Plaintiff testified that she had told Dr. Mullen that LeCI was not going to move Allen.

{¶11} In spite of Dr. Mullen's statement that plaintiff was unable to work, plaintiff testified that over the course of several telephone conversations with Brown while she was out on disability leave, she told Brown that she could perform the job of chaplain, just not at the same prison as Allen. Plaintiff testified that she told Brown "You guys can move her or move me, please" and that she "always talked to him about moving Allen". As plaintiff recalled, Brown told her that Allen was not going to be moved but that if plaintiff would return to work Brown would "get me out of there", although he did not give specifics.

{¶12} Plaintiff testified that in December 2018 she applied for vacant chaplain positions with defendant's Northeast Reintegration Center in Cleveland and Franklin Medical Center in Columbus. Plaintiff stated that it appeared Northeast Reintegration Center had some interest in hiring her, but when she called Brown to let him know he said that she could not be hired there because she was out on disability leave and she would need to first return to work at LeCI. After hearing this, plaintiff stated, she did not pursue any other positions with defendant for the time being.

{¶13} Plaintiff testified that she received a letter in the mail from defendant informing her that there would be a hearing on January 8, 2019, which she could attend, to determine whether she would be subject to an involuntary disability separation based on her continued inability to work. (Plaintiff's Exhibit 11; Defendant's Exhibit B.) While

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the letter was dated December 28, 2018, plaintiff stated that she did not receive it until the day before the hearing. Plaintiff admitted that the letter was correct in noting that Dr. Mullen stated in writing that plaintiff was unable to perform her job duties and would be unable to do so until at least April 1, 2019. According to plaintiff's testimony, though, she...