Gilson v. Am. Inst. of Alt. Med.

• Decision Date: 29 March 2016
• Docket Number: No. 15AP–548.,15AP–548.
• Citation: 62 N.E.3d 754
• Parties: Tamar GILSON, Plaintiff–Appellee/Cross–Appellant, v. AMERICAN INSTITUTE OF ALTERNATIVE MEDICINE et al., Defendants–Appellants/Cross–Appellees.
• Court: Ohio Court of Appeals

62 N.E.3d 754

Tamar GILSON, Plaintiff–Appellee/Cross–Appellant,

v.AMERICAN INSTITUTE OF ALTERNATIVE MEDICINE et al., Defendants–Appellants/Cross–Appellees.

No. 15AP–548.

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

March 29, 2016.

On brief: Michael Garth Moore, Columbus, and Charley Hess, for appellee/cross-appellant. Argued: Michael Garth Moore and Charley Hess.

On brief: Bailey Cavalieri LLC and Tiffany C. Miller, Columbus, for appellants/cross-appellees. Argued: Tiffany C. Miller.

SADLER, J.

{¶ 1} Defendants-appellants/cross-appellees, American Institute of Alternative Medicine (“AIAM”), Diane Sater, and Helen Yee (collectively “defendants”), appeal from judgments of the Franklin County Court of Common Pleas denying defendants' motion for summary judgment, denying defendants' Civ.R. 60(B) motion for partial relief from judgment, overruling defendants' objections and adopting the magistrate's decision issued after the jury's verdicts, and overruling objections and adopting the magistrate's decision on attorney fees. Plaintiff-appellee/cross-appellant, Tamar Gilson, has filed a cross-appeal from the court's decision overruling objections and adopting the magistrate's decision on attorney fees. For the reasons which follow, the judgments of the trial court are affirmed in part and reversed in part.

I. BACKGROUND

{¶ 2} On May 29, 2013, Gilson filed a complaint against defendants alleging one count of age discrimination. On July 19, 2013, defendants filed an answer and a counterclaim asserting one claim of defamation. On December 24, 2013, Gilson amended her complaint, adding a claim for defamation.

{¶ 3} The events giving rise to the claims occurred when Gilson was employed as AIAM's Nursing Program Administrator (“NPA”) from August 2011 to December 2012. AIAM is a business which runs a school offering programs in massage therapy, acupuncture therapy, practical nursing, and registered nursing. Sater and Yee are the owners of AIAM; Sater is the CEO and Yee is the CFO. The Ohio Board of Nursing (“OBN”) regulates and monitors AIAM's practical nursing (“PN”) and registered nursing (“RN”) programs.

{¶ 4} Gilson has held a registered nursing license since 1964. Gilson began her career working as a nurse at Children's Hospital in Columbus, Ohio. Gilson worked for Children's Hospital for 30 years, eventually rising to the rank of director of nursing. After leaving Children's Hospital, Gilson entered the field of nursing education. She has worked at several colleges and institutions.

{¶ 5} Gilson initially began working for AIAM as a consultant. Gilson explained that when she began working with AIAM, the school's National Council Licensure Examination (“NCLEX”) exam scores were “extremely low.” (Tr. Vol. II, 336.) The NCLEX is a national certification examination for nurses. As a consultant, Gilson hoped to help AIAM “develop.” (Tr. Vol. II, 337.) Gilson worked as a consultant for AIAM for only three weeks; AIAM then offered Gilson the NPA position, which she accepted.

{¶ 6} After Gilson became AIAM's NPA, she began to advocate for the school to raise its admission standards. At a June 8, 2012 nursing curriculum committee meeting, the committee raised the school's admission standards. Sater was not present at that meeting.

{¶ 7} Also in June 2012, AIAM began to implement a new associate degree in registered nursing (“ADRN”) program, which essentially “required that we merge both the PN and the RN program together.” (Tr. Vol. II, 290.) Darcy Kaplan, an education facilitator at AIAM, explained that developing the new ADRN program required a “tremendous amount of work” for Gilson on top of her NPA duties. (Tr. Vol. II, 291.)

{¶ 8} In October 2012, a nursing faculty member, Luana Tenge, resigned in the middle of the quarter. As NPA, Gilson was responsible for hiring faculty. However, AIAM had an extremely high faculty turnover rate, and by October 2012, Gilson stated that she had called all the contacts she had made throughout her nursing career and “asked [her] contacts to call others” to try to find faculty to work at AIAM. (Tr. Vol. II, 409.) Gilson explained that she could not find anyone to teach the classes on such short notice, so she began teaching some of Tenge's courses.

{¶ 9} Kaplan explained that the high faculty turnover was due in part to “incivility and unrest on the part of the students,” in addition to other issues such as pay and lack of benefits. (Tr. Vol. II, 258.) During summer 2012, AIAM received an anonymous letter threatening a “Virginia Tech type of episode” at the school. (Tr. Vol. II, 390.) On Gilson's first day of teaching Tenge's classes, Gilson allegedly had a student say to her, “how would you like a sharp knife in your back.” (Tr. Vol. II, 414.) AIAM reported both of these incidents to the police.

{¶ 10} Elaine Hiatt became the academic dean for AIAM in October 2012. Gilson began to have weekly meetings with Sater at this time. At these meetings, Sater and Gilson would discuss “[o]perational issues, progress reports, just * * * the operations and where we're heading.” (Tr. Vol. II, 394.) Sater lowered the school's admission standards in October 2012.

{¶ 11} On December 7, 2012, Hiatt told Sater that she could not “be ready for winter quarter with [Gilson] in this position. We have to get rid of [Gilson].” (Tr. Vol. I, 145.) Hiatt recommended that Sater discharge Gilson because, as of December 7, AIAM “didn't have sufficient clinical faculty in place,” and “the schedule needed to have the nursing instructors assigned to classes.” (Tr. Vol. IV, 787.)

{¶ 12} Thus, on December 7, 2012, Sater and Hiatt went into Gilson's office and told Gilson that the school no longer had a need for her. Gilson asked Sater if there were any performance issues. Sater said “no” and told Gilson that she “had accomplished a lot.” (Tr. Vol. III, 444.) Hiatt admitted that before going in to fire Gilson on December 7, Hiatt and Sater agreed “not to tell [Gilson] the real reason why she was being fired.” (Tr. Vol. IV, 910.)

{¶ 13} Sater told Gilson that she would receive two weeks severance pay and that Gilson “needed to be responsible for signing the completion approval papers that go to the [OBN] for the graduates of the program.” (Tr. Vol. III, 445.) Gilson agreed to sign the completion papers and “[t]o be available for phone calls if needed.” (Tr. Vol. III, 445.) Gilson explained that after Sater left, Hiatt remained and Gilson “went through [her] calendar, and [she] discussed” the upcoming reports that were due to the OBN from AIAM, as well as other matters she had scheduled on her calendar. (Tr. Vol. III, 447.)

{¶ 14} Hiatt stated that she did not ask Gilson about any important upcoming deadlines during this meeting. Hiatt explained that she only stayed in Gilson's office because “it's company policy when you let someone go somebody has to stay there in the room, make sure nothing goes amiss.” (Tr. Vol. IV, 929.) Hiatt noted that while Gilson “went through some things with” her during this final meeting, Hiatt just “said okay, okay, okay, because [Hiatt] felt [she] already had a better grasp on the program than [Gilson] did.” (Tr. Vol. IV, 929.) Hiatt also explained that after December 7, 2012, Gilson was physically gone from AIAM, had no key to the building, and no access to any files.

{¶ 15} On December 20, 2012, Sater sent Jody Hostetler, the education regulatory surveyor for the OBN, a letter notifying the OBN of the change in AIAM's NPA. The letter stated that Gilson was “currently on vacation and will be working from home until December 28th. She is available during this time for any needs by phone and email, and is still meeting with the Dean on administrative issues.” (Plaintiff's Exhibit 9.)

{¶ 16} On December 24, 2012, Hostetler called Sater and said that she had received “the notification about the change in our nursing program administrator, and she said that she hadn't received a report that was—was due.” (Tr. Vol. IV, 690.) AIAM was supposed to submit an RN progress report to the OBN on December 21, 2012. Sater told Hostetler that Gilson “had forgotten some things” and said that “obviously, this [was] another thing that hadn't gotten done.” (Tr. Vol. IV, 690.) Hostetler stated that during this phone conversation, Sater told her that Gilson “was confused and unable to function in her role as a nurse.” (Tr. Vol. II, 310.) Hostetler told Sater that based on the statements Sater had just made and because Gilson's nursing license qualified her to be an NPA, AIAM “need[ed] to report that as—as an employer.” (Tr. Vol. IV, 691.)

{¶ 17} Hiatt wrote the RN progress report and submitted it to the OBN on December 27, 2012. As Hiatt wrote the report, she stated that she took “full responsibility” for the RN progress report. (Tr. Vol. IV, 930.) Hiatt emailed a copy of the RN progress report to Gilson on December 27, 2012, and asked Gilson if she would want to sign the report and turn it in to the OBN herself. Gilson did not respond to Hiatt's email that day, so Hiatt turned the report into the OBN without Gilson's signature.

{¶ 18} Duane Landrum, AIAM's director of admissions, stated that sometime after Gilson was fired, Sater told him that Gilson was “coming after the school” and that she needed Landrum to provide her with some instances where Gilson was “incompetent, where she was too old to do her job, you know.” (Tr. Vol. III, 539.) Landrum also stated that from December 7, 2012 through the end of 2012, Sater lowered the admissions standards “three times.” (Tr. Vol. III, 531.) Thus, by the end of 2012, AIAM's admission standards were lower than they had been in the summer of 2012 when the nursing curriculum committee raised them.

{¶ 19} On January 7, 2013, Sater filed a complaint against Gilson with the OBN. The complaint instructed the author to provide a brief description of the complaint or violation, and Sater wrote the following statement in the space provided:

[Gilson] was our Nursing Program Administrator over

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