Opinion
2019-00525JD
06-09-2021
KIMBERLY RINKER, et al. Plaintiffs v. OHIO STATE RACING COMMISSION Defendant
Sent to S.C. Reporter 8/16/21
DECISION OF THE MAGISTRATE
HOLLY TRUE SHAVER MAGISTRATE JUDGE
{¶1} Plaintiffs, Kimberly Rinker and Sherry White, brought this action alleging sex discrimination, retaliation, and intentional infliction of emotional distress against defendant Ohio State Racing Commission (OSRC or defendant). On October 26, 2020, the court granted summary judgment in favor of defendant on plaintiffs' sex discrimination and intentional infliction of emotional distress claims. The remaining retaliation claims proceeded to trial on the issues of liability and damages. For the reasons stated below, judgment is recommended in favor of defendant on plaintiffs' retaliation claims.
Findings of Fact
{¶2} Plaintiff Kimberly Rinker began working for defendant in March 2015 as the administrator of the Ohio Standard bred Development Fund. Plaintiff Sherry White has been the fiscal officer for defendant since 2009. Plaintiffs allege that the retaliation against them was committed by William Crawford and Michael Rzymek. Crawford has been the executive director of defendant since 2011. Rzymek, an attorney, began his employment with defendant as deputy director and legal counsel in January 2018.
{¶3} In December 2017, Rinker filed a complaint with the Ohio Department of Administrative Services Office of Equal Opportunity (OEO) alleging that Crawford had discriminated against her because of her gender. OEO investigated the complaint. As part of the investigation, White coordinated the interviews with defendant's employees as part of her Human Resources (HR) duties. White was also interviewed as part of the investigation. In her interview, White stated that she believed Rinker's allegations and that Crawford was difficult to work with. Rzymek testified that he was also interviewed during the investigation. The investigation resulted in a report, issued on April 27, 2018, in which the investigator concluded that there was no probable cause to determine that Crawford had discriminated against or had created a hostile work environment for Rinker based on her gender. (Defendant's Ex. I.)
{¶4} In June 2019, another investigation was conducted about the work environment at OSRC. Both Rinker and White were interviewed during this investigation, which concluded on June 26, 2019. (Defendant's Ex. U.) The investigation focused on the work environment and culture of OSRC's employees who work in the Vern Riffe building, as well as specific allegations by Rinker and White of gender-based discrimination and retaliation. Id. The investigator concluded that the facts did not support claims of gender discrimination or retaliation, however, she found that "the employees and management team were contributing to a negative workplace fueled by poor communication, personality conflicts, and unprofessional attitudes." Id.
{¶5} With regard to what led to the 2017 OEO complaint and investigation, Rinker testified that Crawford's leadership style was direct and abrasive. According to Rinker, she tried to be friendly to and engage with Crawford, but she never felt like Crawford's conduct was reciprocal. Rinker filed the OEO complaint after she overheard Crawford referring to her as a "fucking liar to a coworker. Rinker testified that she thought Crawford's remark was inappropriate and unprofessional, and stated that she chose the category of gender discrimination for the complaint because there was no category for "my boss hates me." Rinker testified that after she filed the OEO complaint, she was treated worse. Rinker explained that there was no communication with Crawford other than email, and she described her treatment by him as "harsh." White testified that since she participated in the 2017 OEO investigation, Crawford communicates with her solely through email, and only if absolutely necessary. Rinker and White testified that Crawford and Rzymek have repeatedly retaliated against them for their participation in the OEO complaint and investigation. Testimony at trial was elicited regarding the following incidents.
Rinker's Allegations
1. Vehicle Policy and Compensatory Time
{¶6} Rinker is the administrator of the Ohio Sire Stakes Program, which supports standard bred horses that are owned and bred in the state of Ohio. Revenue from Ohio casinos funds the program. Rinker testified that the Ohio Sires Stakes Program is the best in North America. As part of Rinker's duties, she visited farms to inspect stallions to verify that the stallions were, in fact, bred on the properties where they were registered. Rinker testified that there are typically 125 to 140 stallions, and that she would visit each farm as part of her job duties. Prior to Rzymek's employment, Rinker would drive her personal vehicle to visit farms. However, Rzymek testified that when he started working for defendant, he implemented a new vehicle policy because he wanted to comply with the Department of Administrative Services (DAS) policy regarding vehicle use. According to Rzymek, defendant's former vehicle policy was that White would hand keys to a state vehicle to an employee and the employee would return the vehicle whenever he or she wanted. Rzymek instituted a policy to request a state vehicle 10 days in advance. According to Rinker, in the spring of 2018, she attended a meeting with Crawford and Rzymek where they informed her that she was traveling too much to visit stallions. On April 17, 2018, Rinker was visiting farms using her own vehicle when she received a phone call from Rzymek, who told her that she should not have taken her own vehicle, and ordered her to return to the office immediately, without finishing her scheduled inspections. According to Rinker, Rzymek had previously given her oral permission to use her own vehicle because no state vehicle was available. However, Rzymek testified that a state vehicle was, in fact, available that day. Rinker testified that being ordered to return to work was retaliatory.
{¶7} In June 2018, Rinker submitted a compensation request after using her own vehicle to drive somewhere for work. (Plaintiffs' Ex. 2, 3.) Rinker testified that Rzymek never approved the compensation request, and that she never received compensation. Rinker and Rzymek's emails show the conflict between them about this issue, and their differing interpretations on what happened. Id.
{¶8} In late 2018, Rinker was informed that she had to cut back on her travel to county fairs and stables, and that she would no longer be allowed to accrue compensatory time. Rinker testified that prior to 2018, she used to accrue compensatory time when she worked more hours in the spring and summer during the busy season for horse racing, but that Rzymek began asking her to estimate in advance how much compensatory time she would be accruing. Plaintiffs' Ex. 17 includes emails from Rinker to Rzymek about this issue. Rinker asserts that this change in compensatory time policy was made to retaliate against her because of the OEO investigation. Rzymek testified that from his perspective, an employee must obtain approval to accrue compensatory time, because if an employee is routinely working more than 80 hours in a two-week pay period, Rzymek would reassign some of that work to other employees. Rzymek testified that the compensatory time policy is applied to all employees, not solely to Rinker. Crawford testified that Rinker had been accruing a lot of compensatory time, and in an effort to reduce her use of compensatory time, he and Rzymek decided to eliminate some of Rinker's job responsibilities. Crawford denied that Rinker was not permitted to accrue compensatory time; however, he testified that compensatory time needed to be approved in advance.
2. Prize Policy and Weekend Hours
{¶9} Prior to filing the OEO complaint, Rinker was permitted to purchase prizes for the race winners mostly without oversight, as long as she stayed within her budget. Rinker stored the prizes at her residence for convenience. On March 6, 2019, a new policy was formalized that prohibited keeping items purchased for the races at employees' residences. (Plaintiffs' Ex. 18.) Rinker testified that once the policy was implemented, she was able to follow it, but her complaints about it were two-fold. First, Rinker testified that the way she had done it before was more efficient and saved her and others time. Second, Rinker testified that Rzymek had told her that it was illegal to store state property at her home. Because Rinker disputed that contention, she contacted the Department of Administrative Services and discovered that it was not illegal, it was just preferred to store items in a state-run facility. (See Plaintiffs' Exhibits 11-12.) Rinker was offended that Rzymek accused her of breaking the law when she had not. Crawford testified that he knew that Rinker had been storing prizes at her residence, but that once Rzymek became concerned about inventory control, he agreed that the new policy would be better. Also in March 2019, Rinker requested permission to attend the United States Trotting Association meeting on state time over a weekend. She had previously been permitted to attend the meetings on state time, but in 2019 she was denied permission to do so. Rinker asserts that it was retaliatory to not allow her to be compensated for the meeting because it was part of her job. (Plaintiffs' Ex. 14.)
3. Carpool Incident and IT Incident
{¶10} At some point in 2020, Rinker and White would routinely meet on McDowell Street west of the Riffe building so that Rinker could park her vehicle there and carpool downtown with White to save on parking expense. Other employees of defendant did this as well. In early 2020, while Rinker was waiting for White, Crawford pulled up behind her in his car. His headlights, set to bright, were shining into her car. Rinker interpreted his behavior as threatening. Crawford testified that he regularly waits in that parking lot so that another OSRC employee can carpool with him. Rinker testified that Crawford's behavior was intimidating and retaliatory. White testified that she noticed that a car had its high beams on when she stopped to pick up Rinker that day, and she later learned that it was Crawford. Crawford testified that he had no recollection of this incident but admitted that he meets another employee there so that she does not have to pay for parking. Crawford testified that his lights would have been illuminated because it was dark at that time of the morning.
{¶11} Rinker also testified that in late January 2020, the IT person for OSRC informed Rinker that while she was on vacation, Crawford was trying to access her computer to look at her files. In summary, Rinker testified that Crawford was a little more intense and hateful after she filed her OEO complaint; that he is harsh and unkind; that cutting the budget for prizes, taking county fair work away from her, and that not allowing her to take as much compensatory time as she had in the past were petty, retaliatory actions that Crawford took against her. Nevertheless, Rinker has not suffered a reduction in salary, nor a change in job title, and continues to work for defendant.
White's Allegations
{¶12} White also claims that Crawford and Rzymek retaliated against her for assisting with and participating in the OEO investigation. White testified that she was interviewed for the OEO investigation in March 2018. Testimony at trial was elicited regarding the following incidents that White claims were retaliatory.
1. Attitude Change and Copy Machine
{¶13} In April 2018, White noticed that Crawford was not speaking to her anymore. White also described Crawford as acting in an intimidating manner: glaring at her, snatching things from her, and slamming doors. White testified that after she was interviewed during the OEO investigation, Crawford and Rzymek decided not to purchase a new scanner/copier to replace an old one that was being eliminated, after they had told her that a new one would be purchased. Crawford denied that he does not to speak to White and testified that he must communicate with her to do his job. Crawford denied that he acted in an intimidating way but admitted that he has probably raised his voice at one time or another to every employee in the office. Crawford testified that the scanner/copier was not replaced because it was large and was taking up too much space in the office, especially after office space was reduced.
2. Filing Cabinet Keys
{¶14} White testified that the HR files for current and former OSRC employees were kept in a filing cabinet in her office. Files for current employees were kept in the top drawer, and files for former employees were kept in the lower drawer. Prior to May 2018, the key to unlock the drawers was in White's possession. But in May 2018, Crawford and Rzymek decided that Rzymek should keep the key. According to Crawford and Rzymek, this change was necessary for the sake of security-to protect employees' personal information-because White had a history of leaving the drawers unlocked. White disputed their assertion, claiming that she did generally make sure that the drawers were locked before she left at the end of the day. Instead, she testified that the key was given to Rzymek to make her job more difficult. She further testified that the lower drawer, which she did not use as frequently, remained unlocked despite containing more files with sensitive personal information than the top drawer. On cross-examination, White testified that she still has access to the files when she needs them, she just has to take the extra step to ask Rzymek or Crawford for the keys.
3. Change in Duties
{¶15} In 2018, the duty of assisting with performance evaluations was shifted from White to Rzymek. White testified that she used to create the evaluation documents but not conduct the actual evaluations. Rzymek testified that he took on this job duty when he was hired, in part because defendant was at that time three years behind on employee evaluations. Crawford testified that he shifted this duty to Rzymek because he felt that White was overloaded with work. The duty of overseeing compliance with the state ethics regulations was also transferred from White to Rzymek. Rzymek testified that this change was made pursuant to an order from the governor that the chief legal counsel of each state entity was responsible for ensuring compliance with ethics training.
From the testimony of the witnesses, it appears that the delay in completing evaluations was due to Crawford, not White. After Rzymek began assisting with them, he sped up the process by completing the first draft of the evaluations.
4. Christmas Eve Leave Slip
{¶16} On December 24, 2018, White and another employee submitted leave slips for 3 hours, after working from 7 a.m. to noon. White testified that her leave slip was changed so that she had to take 3.5 hours of leave to account for a lunch break, because defendant's policy states that if you work over 4.5 hours, you had to take a lunch break. White testified that she knows from processing payroll that this policy is not enforced for other people. However, the exhibits submitted at trial show that both she and the other employee were required to take an additional half hour of leave time. (Plaintiffs' Ex. 23.)
5. Written Reprimand
{¶17} In November 2019, White received a written reprimand for failing to timely submit the payment information for the Combined Simulcast Purse Fund after the commission meeting on October 30, 2019. (Plaintiffs' Ex. 28.) According to R.C. 5753.03, the funds were required to be submitted by the end of October. White stated in her response to the reprimand that it would have been impossible to process the payments approved at the commission meeting before the end of the month. (Plaintiffs' Ex. 29.) White explained that it normally takes a minimum of three days for OAKS, the state payroll processing system, to process the payments. According to White, she was delayed even further because Rzymek did not timely submit the information into the system where she could access it. Crawford testified that he normally gives White the information around the tenth of the month. But White testified that Crawford did not give her the information that month. Crawford and Rzymek took the position that it was White's job to seek out the information if it had not been provided to her in a timely manner. Crawford testified that he received a phone call from one of the racetracks asking why funds had not been released, despite the payment having already been approved at a commission meeting. White testified that Crawford became "furious" with her when he learned that the funds were not submitted timely. Rzymek testified that the reprimand was issued because White failed to comply with the law, and she failed to inform her supervisors that she did not have the necessary information. White testified that despite the written reprimand, she was not suspended or demoted, she did not suffer a reduction in salary, and she is still employed by defendant.
{¶18} Rzymek testified that he was hired in January 2018 by Crawford to the position of deputy director, which had been vacant since 2011. Rzymek stated that his duties were to take on various duties that other employees had been performing, including evaluations, hearings, and helping move the office space. According to Rzymek, office space was reduced by 60 percent when he began. Rzymek testified that Crawford wanted him to take over managing the office, including payroll, supervising the employees, and catching up with paperwork.
{¶19} Rzymek testified that he was interviewed by Kim Watson as part of the OEO investigation of Rinker's complaint when he started his employment, but that the complaint was filed before he started working for defendant. Rzymek also testified that in spring 2019, another investigation was conducted by DAS, during which he was interviewed by Marissa Walter. Rzymek testified that during this investigation, Rinker complained that he was micromanaging her, and White complained that he had taken certain duties away from her. Rzymek denied taking any action against Rinker or White in retaliation for their participation in either investigation.
{¶20} Crawford testified about each of the allegations. In summary, Crawford denied that he had retaliated against either Rinker or White. Despite his denials, the testimony of other witnesses corroborated plaintiffs' testimony that Crawford has a demanding style and that he yells at employees. Although Crawford testified that he does not believe he can yell because he was diagnosed with larynx cancer and part of his larynx has been removed, all other witnesses, including Rzymek, testified credibly that Crawford has yelled at them at some point during their employment.
Law and Analysis
{¶21} R.C. 4112.02 provides, in part:
It shall be an unlawful discriminatory practice:
(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 4112.01 to 4112.07 of the Revised Code. In Ohio, "federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 196 (1981).
{¶22} "To prevail in an employment discrimination case, a plaintiff must prove discriminatory intent' and may establish such intent through either direct or indirect methods of proof." Dautartas v. Abbott Labs., 10th Dist. Franklin No. 11AP-706, 2012-Ohio-1709, ¶ 25, quoting Ricker v. John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th Dist.1998). "Absent direct evidence of retaliatory intent, Ohio courts analyze retaliation claims using the evidentiary framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 * * *." Veal v. Upreach LLC, 10th Dist. Franklin No. 11AP-192, 2011-Ohio-5406, ¶ 16. "Specifically, the plaintiff must establish that (1) she engaged in a protected activity, (2) the defending party was aware that the claimant had engaged in that activity, (3) the defending party took an adverse employment action against the employee, and (4) there is a causal connection between the protected activity and adverse action." Id.
{¶23} "Plaintiffs burden of establishing a materially adverse employment action is less onerous in the retaliation context than in the anti-discrimination context.'" Laster v. Kalamazoo, 746 F.3d 714, 731 (6th Cir.2014), quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595-596 (6th Cir.2007). In contrast to a discrimination claim, "the 'adverse employment action' requirement in the retaliation context is not limited to an employer's actions that affect the terms, conditions, or status of employment, or those acts that occur in the workplace." Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 720 (6th Cir.2008), citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2412-14, 165 L.Ed.2d 345 (2006). "The retaliation provision instead protects employees from conduct that would have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Id., quoting Burlington at 2415.
{¶24} "Once a plaintiff establishes a prima facie case, the burden [of production] then shifts to the employer to 'articulate some legitimate, nondiscriminatory reason' for its actions." Veal, ¶ 17. "If the employer satisfies this burden, the burden shifts back to the complainant to demonstrate 'that the proffered reason was not the true reason for the employment decision.'" Id., quoting Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095 (1981). To show that an employer's proffered reason is pretextual, "a plaintiff must submit evidence that an employer's proffered reason (1) had no basis in fact, (2) did not actually motivate the employer's challenged conduct, or (3) was insufficient to warrant the challenged conduct." Hall v. Ohio State Univ. College of Humanities, 10th Dist. Franklin No. 11AP-1068, 2012-Ohio-5036, ¶ 27. "The ultimate burden of persuasion always remains with the plaintiff." Ames v. Ohio Dept. of Rehab. & Corr., 2014-Ohio-4774, 23 N.E.3d 162, ¶ 27 (10th Dist.). "To prevail on a retaliation claim, a plaintiff must 'establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.'" EEOC v. Ford Motor Co., 782 F.3d 753, 770 (6th Cir.2015). That means plaintiffs "must present evidence from which a reasonable [trier of fact] could find that [defendant] would not have [taken the allegedly adverse employment actions] if [Rinker] had not made her charge." Id. Plaintiffs must establish "both that the legitimate, non-discriminatory reason was false and that unlawful retaliation was the real reason for the adverse employment action." Smith v. Ohio Dept of Public Safety, 10th Dist. Franklin No. 12AP-1073, 2013-Ohio-4210, ¶ 50.
{¶25} Upon review of the testimony and evidence presented at trial, the magistrate makes the following findings. Plaintiffs have established that they both engaged in a protected activity because of their participation in the OEO investigation that commenced in December 2017. Plaintiffs have also established that they engaged in a protected activity when they were interviewed during the DAS investigation in June 2019. However, with respect to Rinker, the magistrate finds that she has failed to prove that either Crawford or Rzymek engaged in conduct that would have dissuaded a reasonable worker from making or supporting a charge of discrimination. The greater weight of the evidence shows that in April 2018, when the investigation of Rinker's complaint concluded, Crawford limited his contact with Rinker to email. The magistrate is not persuaded that the parking lot incident in 2020 where Crawford had his high beams illuminated was an attempt to intimidate plaintiff. Without more, the magistrate finds that Crawford's conduct would not have dissuaded a reasonable worker from making or supporting a charge of discrimination. Indeed, the emails that Rinker sent to Rzymek from 2018 forward, often complained of policies that Rzymek initiated that Rinker disliked. Furthermore, Rinker complained of being micromanaged by Rzymek in the 2019 DAS investigation, and she also filed this claim, so she, in fact, was not dissuaded from making or supporting a charge of discrimination. With regard to the specific instances of conduct with Rzymek, even if the court were to find that these actions supported a prima facie case of retaliation, Rzymek and Crawford have articulated legitimate, nondiscriminatory reasons for implementing new policies. The magistrate finds that Rzymek's testimony was credible that he was hired to manage the office and he implemented policies regarding use of state vehicles, compensatory time, and prohibiting storage of prizes at employees' residences for legitimate business purposes. Rinker's displeasure with the implementation of new policies does not prove, by a preponderance of the evidence, that the policies had no basis in fact, did not actually motivate the employer's challenged conduct, or were insufficient to warrant the challenged conduct. It is clear to the magistrate that Rinker did not believe that new policies were warranted, however, the evidence does not show that the policies were implemented by Rzymek in retaliation for Rinker's participation in any protected activity.
{¶26} Turning to White's claims, the magistrate finds that her testimony was credible and persuasive that Crawford's demeanor toward her changed as a result of her participation in the OEO investigation. The magistrate finds that a written reprimand for failing to process the casino payments may well have dissuaded a reasonable worker from making or supporting a charge of discrimination. However, the magistrate further finds that Crawford and Rzymek have articulated legitimate, nonretaliatory reasons for their actions. Moreover, while White disputed the basis for the written reprimand, the casino payments were not timely processed. Therefore, White has failed to prove, by a preponderance of the evidence, that the written reprimand had no basis in fact, did not actually motivate the employer's challenged conduct, or was insufficient to warrant the challenged conduct. Furthermore, White also participated in the 2019 investigation, where she again complained about Crawford and Rzymek's conduct. Therefore, the magistrate finds that even though she may have been dissuaded from making or supporting a charge of discrimination, she, in fact, participated in an investigation regarding the work environment, where she expressed her concerns.
{¶27} In the final analysis, although it is clear to the magistrate that the working environment at OSRC is stressful and there seems to be a lack of camaraderie and respect throughout, the magistrate finds that plaintiffs have failed to prove, by a preponderance of the evidence, that their participation in a protected activity was a but-for cause of the alleged adverse actions by Crawford and Rzymek. Therefore, judgment is recommended in favor of defendant.
{¶28} A party may file written objections to the magistrate's decision within 14 days of the filing of the decision, whether or not the court has adopted the decision during that 14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections, any other party may also file objections not later than ten days after the first objections are filed. A party shall not assign as error on appeal the court's adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion within 14 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).