Bahar v. Youngstown

[Cite as Bahar v. Youngstown, 2011-Ohio-1000.]
STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

ARLENE BAHAR ) CASE NO. 09 MA 55
)
PLAINTIFF-APPELLANT )
)
VS. ) OPINION
)
CITY OF YOUNGSTOWN )
)
DEFENDANT-APPELLEE )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common
Pleas of Mahoning County, Ohio
Case No. 07 CV 1341

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellant: Atty. Gregory A. Gordillo
Atty. Michael J. Gordillo
Gordillo & Gordillo, LLC
1370 Ontario Street, Suite 2000
Cleveland, Ohio 44113

For Defendant-Appellee: Atty. Neil D. Schor
Atty. Matthew G. Vansuch
Harrington, Hoppe & Mitchell, LTD
26 Market Street, Suite 1200
P.O. Box 6077
Youngstown, Ohio 44501-6077

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich

Dated: February 25, 2011
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WAITE, P.J.

{1} Appellant, Arlene Bahar, appeals the decision of the Mahoning County

Common Pleas Court entering summary judgment against her and in favor of

Appellee, the City of Youngstown, on her retaliation claim. Bahar was the Clerk of

the Youngstown City Council from November of 1997 to February of 2006. She

contends that genuine issues of material fact exist as to whether she was terminated

in retaliation for reporting allegations of sexual harassment against councilman, Artis

Gillam, Sr., to other members of city council and the city law director. Because

Appellant cannot establish a causal connection between her protected activity and

her termination, Appellant’s sole assignment of error is overruled and the judgment

entry of the trial court is affirmed.

{2} An appellate court conducts a de novo review of a trial court’s decision

to grant summary judgment, using the same standards as the trial court as set forth

in Civ.R. 56(C). Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671

N.E.2d 241. Before summary judgment can be granted, the trial court must

determine that (1) no genuine issue as to any material fact remains to be litigated, (2)

the moving party is entitled to judgment as a matter of law, and (3) it appears from

the evidence that reasonable minds can come to but one conclusion, and viewing the

evidence most favorably in favor of the party against whom the motion for summary

judgment is made, the conclusion is adverse to that party. Temple v. Wean United,

Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267. When a court considers a
 -3-

motion for summary judgment, the facts must be taken in the light most favorable to

the nonmoving party. Id.

{3} “[T]he moving party bears the initial responsibility of informing the trial

court of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element of the

nonmoving party's claim.” (Emphasis sic.) Dresher v. Burt (1996), 75 Ohio St.3d

280, 296, 662 N.E.2d 264. If the moving party carries its burden, the nonmoving

party has the reciprocal burden of setting forth specific facts showing that there is a

genuine issue for trial. Id. at 293, 662 N.E.2d 264. In other words, in the face of a

properly supported motion for summary judgment, the nonmoving party must produce

some evidence that suggests that a reasonable factfinder could rule in that party’s

favor. Brewer v. Cleveland Bd. of Edn. (1997), 122 Ohio App.3d 378, 386, 701

N.E.2d 1023.

ASSIGNMENT OF ERROR

{4} “The trial court below erred in granting the Defendant-Appellee, City of

Youngstown’s Motion for Summary Judgment on Count Two of Plaintiff-Appellant

Arlene Bahar’s Amended Complaint.”

{5} R.C. 4112.02(I) provides that it is an unlawful, discriminatory practice to

retaliate against an employee who has opposed any unlawful discriminatory practice

or has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding or hearing under R.C. 4112.01 through 4112 .07. “To

prove a claim of retaliation, a plaintiff must establish three elements: (1) that [he or]
 -4-

she engaged in protected activity, (2) that [he or] she was subjected to an adverse

employment action, and (3) that a causal link exists between a protected activity and

the adverse action.” Norton v. FirstEnergy Corp., 7th Dist. 05-JE-5, 2006-Ohio-892,

¶60.

{6} “Once a plaintiff successfully establishes a prima facie case, it is the

defendant’s burden to articulate a legitimate reason for its action. If the defendant

meets its burden, the burden shifts back to the plaintiff to show that the articulated

reason was a pretext.” Id. citing Peterson v. Buckeye Steel Casings (1999), 133

Ohio App.3d 715, 727, 729 N.E.2d 813.

{7} Close temporal proximity between the employer’s knowledge of the

protected activity and the adverse employment action alone may be significant

enough to constitute evidence of a causal connection for the purposes of satisfying a

prima facie case of retaliation. Clark County Sch. Dist. v. Breeden, 532 U.S. 268,

273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that some cases have

“accept[ed] mere temporal proximity between an employer’s knowledge of protected

activity and an adverse employment action as sufficient evidence of causality” but

that they have only done so when the temporal proximity is “very close”); Payton v.

Receivables Outsourcing, Inc., 163 Ohio App.3d 722, 2005-Ohio-4987 (two day

interval); Thatcher v. Goodwill Industries of Akron (1997), 117 Ohio App.3d 525, 535,

690 N.E.2d 1320 (three week interval).

{8} On the other hand, where some time elapses between the employer’s

discovery of a protected activity and the subsequent adverse employment action, the
 -5-

employee must produce other evidence of retaliatory conduct to establish causality.

See Hall v. Banc One Management Corp., 10th Dist. No. 04AP-905, 2006-Ohio-913,

¶47 (noting in a case alleging retaliation that “an interval of two months between

complaint and adverse action ‘so dilutes any inference of causation that we are

constrained to hold as a matter of law that the temporal connection could not justify a

finding in [plaintiff's] favor on the matter of causal link’”), reversed on other grounds

by 114 Ohio St.3d 484, 2007-Ohio-4640, 873 N.E.2d 290; Ningard v. Shin Etsu

Silicones, 9th Dist. No. 24524, 2009-Ohio-3171, ¶17 (holding that mere temporal

proximity does not suffice, “especially where the events are separated by more than

a few days or weeks”); Boggs v. Scotts Co.,10th Dist. No. 04AP-425, 2005-Ohio-

1264, ¶26 (additional evidence required after two month interval); Aycox v. Columbus

Bd. of Ed., 10th Dist. No. 03AP-1285, 2005-Ohio-69, ¶21 (additional evidence

required after two to four month interval); Briner v. Nat’l City Bank (Feb. 17, 1994),

8th Dist. No. 64610 (additional evidence required after three month interval).

{9} Here, Appellant attempts to first rely upon the close temporal proximity

of her protected activity and her termination to establish the causal connection

necessary to raise a prima facie case. In the event that her temporal proximity

argument fails, she contends that inaction on the part of city council following her

allegations of sexual harassment is additional evidence that she was fired in

retaliation for her protected activity.

{10} The procedural history of this case is unusual. A few days after

Appellant was terminated, Gillam filed a lawsuit against her for defamation and
 -6-

intentional infliction of emotional distress. Appellant responded by filing

counterclaims against Gillam for sexual harassment and retaliation. Appellant then

filed a separate lawsuit against the City of Youngstown alleging sexual harassment

and retaliation. As a result, Appellant was deposed on two separate occasions: by

Gillam’s counsel on February 28, 2008 (“Bahar Depo.”) and by counsel for the City

on November 19, 2008 (“Bahar Depo. II”). After the cases were consolidated, the

original lawsuit between Gillam and Appellant was settled. The trial court ruled

against Appellant in both her sexual harassment and retaliation claims. Appellant did

not appeal the dismissal of her harassment suit and is before us solely on the issue

of retaliation.

{11} The following facts are taken from the Appellant’s depositions unless

otherwise noted. Appellant was a salaried “at will” employee, as that term is defined

by Ohio law. She was supervised by all of the seven members of city council and its

president. (Bahar Depo., pp. 15, 17.) Appellant described the clerk position as

having flexible hours, because she was often required to work evenings, weekends,

and early mornings. (Bahar Depo. II, p. 74.) She claimed that her work load

determined her hours, and that she averaged forty hours a week. (Bahar Depo., pp.

18, 23.)

{12} According to Gillam, Appellant was terminated because of work

performance, more specifically, “[Appellant’s] repeated failure to arrive at work on

time and to be available at times to assist Council members to perform their Council

functions.” (Gillam Aff., ¶8.) During her employment with city council, Appellant
 -7-

never had a performance evaluation, and there was no policy handbook governing

her conduct. (Bahar Depo. II, pp. 65, 84.) Gillam was not deposed for the purpose of

summary judgment.

{13} At her first deposition, Appellant claimed that Gillam required more

attention than the other members of council, and that she often went to his home or

office to help him correct problems with his cell phone and personal digital assistant.

(Bahar Depo., p. 101.) Appellant’s first and, the record reflects, only reported

allegation of sexual harassment occurred on November 23, 2001 when she went to

Gillam’s residence to deliver legislative materials.

{14} Appellant documented the alleged incident in a memorandum, dated

December 31, 2001, that she forwarded to two members of city council, James

Fortune [who was replaced on council by the time of her termination] and Richard W.

Atkinson. According to the memo, Gillam asked Appellant to deliver legislative

materials to his home on November 23, 2001, and during a discussion in his living

room, he asked her if she was “as attracted to him as he was to [her].” (12/31/01

Interoffice Memorandum, p. 1, attached to Bahar Depo. II.) When Appellant

expressed surprise, Gillam said that he did not want to put her on “the hot seat.”

Appellant told Gillam that it was “too late” and that she did not think of him that way.

(12/31/01 Interoffice Memorandum, p. 1.)

{15} In addition to the memorandum, Appellant said she spoke with Atkinson

directly about the alleged incident, and also recounted the incident to a third city

councilman, Rufus Hudson. Appellant insisted both in the memos to Fortune and
 -8-

Atkinson and verbally to Hudson that the information she was disclosing should

remain confidential. (Bahar Depo. II, pp. 35, 43.) She further stated in the memos

that she did not wish to pursue any action against Gillam at that time, but that she

was making a record of the incident “should future reference be necessary or should

any repercussions occur.” (12/31/01 Interoffice Memorandum, p. 1.) The record

does not reflect that Gillam knew of either the memorandum or her discussions with

these councilmen.

{16} Appellant testified that Atkinson, Fortune, and Hudson told her to

behave professionally toward Gillam, because she served at the pleasure of council,

but that she should try to limit her exposure to Gillam. They also offered to deliver

Gillam’s legislative packets to his home in order to avoid any uncomfortable

situations for Appellant. (Bahar Depo. pp. 97-98.) Appellant conceded that the

November, 2001 incident was the first and only allegation of sexual harassment that

she ever reported.

{17} Appellant claims, however, that she endured several other unreported

inappropriate exchanges with Gillam after November 23, 2001 but prior to February

15, 2006, which she characterized as both sexual harassment as well as retaliation

for rebuffing Gillam’s alleged advances in 2001. She recounted five incidents in her

depositions: (1) Gillam telling her she has pretty eyes (Bahar Depo., p. 82); (2)

Gillam admiring her legs (Bahar Depo., p. 68); (3) Gillam admiring her breasts (Bahar

Depo., pp. 81-82); (4) Gillam asking if she wore a particular skirt for him (Bahar
 -9-

Depo., p. 68); and (5) Gillam telling her that men in his family have large penises

(Bahar Depo., p. 81.)

{18} Appellant concedes that she never confronted Gillam about his

comments, nor did she ask him to stop making such comments. (Bahar Depo., p. 83,

Bahar Depo. II, p. 32.) She also concedes that she never reported any of the above

alleged incidents of harassment/retaliation to any other members of city council.

{19} She claimed that the comment regarding her skirt occurred in the

summer of 2003, and remarks about her breasts were made in the summer of 2005.

(Bahar Depo., pp. 68, 82.) The remaining comments were made “throughout the

period from November of 2001 through 2006.” (Bahar Depo., p. 64.) Appellant

stated that she maintained calendars during her employment with city council that

contained more specific information regarding Gillam’s harassment, however those

calendars were not offered as part of the summary judgment process and are not in

the record. (Bahar Depo., p. 69.)

{20} The trial court concluded that the foregoing allegations, even taken as

true for the purpose of the summary judgment motion, did not fulfill the “severe and

pervasive” element necessary to establish a prima facie case in sexual harassment.

(2/18/09 J.E., p. 2.) Appellant is not appealing the trial court’s judgment as to her

sexual harassment claim and, hence, this decision is final.

{21} As earlier stated, the only issue on appeal is the trial court’s decision

regarding her retaliation claim. Appellant contends that, over the course of the more

than four years that passed between the 2001 memo and discussions and her
 -10-

termination, she repeatedly informed members of council that Gillam was hostile

toward her and treating her unfairly. However, Appellant concedes that she never

told any of the council members that she believed that she was being sexually

harassed by Gillam, or that she believed that the harassment was retaliation for her

rejection of his sexual advances in 2001. (Bahar Depo., pp. 98-105) Further, at the

time of her firing, one of the three council members to whom she reported the 2001

incident, Fortune, was no longer serving as a member of council.

{22} At her second deposition, Appellant was asked, “[i]n your intent to keep

[the first incident of sexual harassment] confidential, was the incident discussed as

being the grounds for the retaliation with the other Councilmen, excluding Atkinson

and Hudson?” Appellant responded, “[n]o.” (Bahar Depo. II, pp. 64-65.)

{23} When pressed to articulate evidence of Gillam’s hostile treatment,

Appellant stated, “Gillam seemed to have more than the normal preoccupation with --

and by more than normal I’m saying more than the other members of city council --

with regard to where I was, who I was meeting with.” (Bahar Depo., p. 100.) She

further stated that Gillam “seemed to take issue with [her] work” shortly after she sent

the December 31 memo to Fortune and Atkinson. (Bahar Depo. II, p. 58.) Again, the

record does not reflect that Gillam knew of this memo.

{24} Despite these statements, Appellant claimed later in her second

deposition that no member of council had ever discussed any problems with her work

hours, prior to a staff meeting called by Gillam on February 8, 2006. (Bahar Depo. II,
 -11-

p. 73.) She also claimed that she never feared termination based upon her work

performance prior to the staff meeting. (Bahar Depo. II, p. 78.)

{25} The February 8, 2006 staff meeting was attended by Council President

Charles Sammarone, and four council members, Paul Pancoe, Mark Memmer,

Hudson and Gillam, as well as Appellant and staff members, Terri Dawson and Claire

Maluso. (Bahar Depo. II, pp. 69-70.) Appellant claims that problems with her work

hours were discussed for the first time at this meeting.

{26} According to Gillam’s affidavit, “council members voiced their concerns

about [Appellant’s] performance.” (Gillam Aff., ¶8.) According to affidavits provided

by Appellant and Hudson, Gillam was the only council member at the staff meeting to

question Appellant’s work performance. (Bahar Aff., ¶4-5, Hudson Aff., ¶3.) In

Hudson’s affidavit, he characterized Appellant’s work performance as “above and

beyond the call of her duties.” (Hudson Aff., ¶4.)

{27} Appellant stated that when she pressed Gillam for specific examples of

problems created by her unavailability during work hours, he provided only broad

generalizations criticizing her attendance. (Bahar Depo. II, p. 71.) At the end of the

meeting, Appellant approached Gillam and told him that she “felt powerless and

feared the possibility of termination.” (Bahar Depo. II, p. 75.)

{28} Appellant stated that prior to the staff meeting, in January, 2006, she

spoke to City Law Director, Iris Guglucello, in order to determine her rights as an

employee. She told Guglucello that she had been subjected to a hostile work

environment “as a result of [sic] inappropriate sexual advance from dollar [sic] of [her]
 -12-

superiors.” (Bahar Depo., p. 87.) She did not identify Gillam as the source of these

advances.

{29} She spoke with Guglucello again on February 13, 2006, five days after

the staff meeting. As a result of their conversation, Guglucello issued a

memorandum to Appellant that same day, captioned “PRIVILEGED ATTORNEY-

CLIENT DOCUMENT,” informing Appellant that, as an employee of city council, the

sexual harassment policy in effect for city employees was not applicable to her.

Guglucello suggested that Appellant file a complaint with the Ohio Civil Rights

Commission or the Equal Employment Opportunities Commission. (2/13/06

Guglucello Memo, p. 1.)

{30} At some point prior to her termination, she submitted a claim to the

equal employment commission in Cleveland, Ohio. (Bahar Depo. II, pp. 89-90.) She

says that the commission informed her that it had no jurisdiction to investigate a

political body. (Bahar Depo. II, p. 90.) She did not pursue any other claims with any

other agencies.

{31} On February 14, 2006, Appellant was called to a meeting at the city law

department. Three councilmen, Gillam, Memmer, and Pancoe, attended the

meeting. At the meeting, Gillam warned Appellant that she would be terminated at

the February 15, 2006 council meeting, and he requested her resignation to avoid

embarrassment. (2/15/06 Bahar Memo., p. 2.) Although Appellant says she refused

to resign at the meeting, she was apparently silent about her harassment and

retaliation claims.
 -13-

{32} Later that day, she approached Hudson, Atkinson, Sammarone, and

city councilwoman Carol Rimedio-Righetti to inform them about the meeting at the

law department. (Bahar Depo. II, p. 95.) It was at that time that Appellant says she

told Atkinson and Hudson she believed that her termination was retaliatory based on

her December of 2001 memo. (Bahar Depo. II, p. 98.)

{33} On February 15, 2008, the day of her firing, Appellant prepared a letter

directed to the members of city council stating that she had “endured emotional

distressed [sic] caused by [Gillam] that [she] believe[s] stem from a prior incident in

which [she] failed to return a sexual advance.” (2/15/06 Bahar Memo., p. 1.) She

recounted the events of the staff meeting, including her conversation with Gillam

where she stated that she feared for her job. In her letter, Appellant concluded that

“the recent and prior acts of [Gillam] have accumulated and escalated over the years

and he has demonstrated that he will stop at nothing short of getting rid of me. I feel

that I have no choice but to proceed with filing a formal complaint with the appropriate

authorities unless City Council as a whole can addresses [sic] this issue.” (2/15/06

Bahar Memo., p. 2.)

{34} However, according to her first deposition, Appellant hand delivered

Atkinson’s letter and mailed the remaining letters on February 16, 2006, after she

was fired. (Bahar Depo., p. 40.) According to her second deposition, Appellant

mailed this letter to members of council on February 15, 2006, the day she was

terminated, with the exception of Atkinson’s letter, which was hand delivered that

day. (Bahar Depo. II, p. 26.)
 -14-

{35} At the council meeting of February 15, 2006, following an executive

session, council voted to terminate Appellant’s employment in a four-to-three vote.

Councilmen Gillam, Pancoe, Memmer and Rapovy voted to terminate Appellant’s

employment, while Councilmen Atkinson and Hudson and Councilwoman Carol

Rimedio-Righetti voted to retain Appellant. Appellant did not mention her

accusations of harassment or retaliation on Gillam’s part at the city council meeting.

{36} According to the affidavits of Hudson and Atkinson, both men asked for

an explanation for Appellant’s termination during the executive session, as well as at

the council meeting, but no explanation was provided. (Hudson Aff., ¶7-8, Atkinson

Aff., ¶5-6.) According to Hudson, during the executive session, when Gillam was

asked why Appellant was being terminated, he responded, “I don’t have to explain

anything, I have the votes.” (Hudson Aff., ¶7.)

{37} Based on the foregoing facts, Appellant argues that she was fired for

reporting what she characterizes as Gillam’s continuing sexual harassment from

November of 2001 to February 15, 2006. On February 18, 2009, the trial court

entered summary judgment in favor of the city on both counts of Appellant’s first

amended complaint. Before the trial court on summary judgment were both of

Appellant’s depositions, the affidavits of Councilmen Gillam, Hudson, and Atkinson,

Appellant’s response to the city’s first set of interrogatories and request for production

of documents, Guglucello’s memorandum to Appellant dated February 13, 2006,

Appellant’s February 15, 2006 memorandum to members of city council, and a

transcript of a staff meeting conducted on February 8, 2006, transcribed by Appellant.
 -15-

The transcript is accompanied by an affidavit of Appellant, attesting to the fact that

she recorded the staff meeting as a matter of course, and transcribed it in an effort to

refresh her recollection of the events that occurred.

{38} In granting summary judgment to the city on the retaliation claim, the

trial court reasoned that “[Appellant] complained about Gillam’s alleged sexual

harassment after learning that she might be terminated for performance related

issues. In addition, [Appellant] had told only two council members about the alleged

sexual harassment prior to 2006.” (2/18/09 J.E., p. 3.)

{39} In her first argument in this appeal, Appellant contends that summary

judgment was inappropriate because of the close temporal proximity between her

protected activity and her termination. In order to demonstrate the close temporal

proximity of those events, she claims that she engaged in protected activity at least

three times in the days before her termination: on February 13, 2006, during her

conversation with Guglucello; on February 8, 2006 during her conversation following

the staff meeting with Gillam; and on February 15, 2006, during her conversation with

Atkinson and Hudson. In addition, Appellant’s counsel asserted at oral argument

(without foundation) that Appellant told every member of city council that Gillam was

retaliating against her because of her 2001 allegations of sexual harassment.

Because the foregoing communications either do not constitute protected activity or

do not establish that council was aware of the protected activity, Appellant’s temporal

proximity argument must fail.
 -16-

{40} With respect to her communications with Guglucello, Appellant claims

that “[t]he Law Director indisputably had knowledge of [Appellant’s] protected activity

during the ten days immediately before [her] discharge. As legal counsel to the City

Council, [the law director] would have been derelict in her duties had she not

informed the council members of [Appellant’s] complaints that had been made so

close in time to the legislative act of firing her.” (Appellant’s Brf., p. 16.) However,

this statement is, at best, supposition. Appellant has absolutely no evidence of

record with which to support this statement. Additionally, the inference that Appellant

draws, that Guglucello informed the members of city council about Appellant’s

complaint, is directly contradicted by Guglucello’s February 13, 2006 memo on its

face. The memo is captioned, “PRIVILEGED ATTORNEY-CLIENT DOCUMENT.”

Therefore, the evidence as reflected in this record shows that Guglucello considered

her conversations with Appellant to be privileged, and did not repeat Appellant’s

statements to the members of city council. Although Appellant’s deposition testimony

in this regard tends to establish that she attempted to engage in protected activity, it

does not establish that any member of council knew of her protected activity.

{41} Next, Appellant relies on her conversation with Gillam after the staff

meeting to establish close temporal proximity between her protected activity and her

termination. However, her deposition testimony does not establish that she

confronted Gillam about the alleged retaliation at or after the staff meeting. In her

second deposition, counsel for the city asked Appellant if she raised the issue of

Gillam’s alleged sexual harassment and retaliatory conduct during the staff meeting:
 -17-

{42} “Q Did the issue of your fear of powerlessness, fear of termination –

I’m sorry – feeling powerless, fear of termination, concerns about what you believed

to be retaliatory conduct by [Gillam], did that come up as an agenda item or a

discussion at that meeting?

{43} “A No.

{44} “* * *

{45} “Q Okay. And since you’re familiar with the record of the meeting, was

your, as this is going on and you’re hearing about, as you talk about in your letter,

specific work issues concerning you, did you at any point in time in that meeting raise

the issue or discuss [Gillam’s] what you believe to be retaliatory behavior or any fears

you had about it?”

{46} “* * *

{47} “A To the first part of the question, being familiar with the record of the

meeting, I can’t say that I am familiar with the record of the meeting.

{48} “* * *

{49} “A There weren’t specific instances [of my job performance] that were

discussed in the meeting.

{50} “* * *

{51} “A There weren’t specific instances that were discussed in the meeting.

* * * They were general. They weren’t specific. So I’m just trying to follow the

question.
 -18-

{52} “Q Okay, and my question is this: As you’re hearing this and thinking,

he’s acting this way against me, I may lose my job, I don’t know what’s happening,

you know, I’m feeling perplexed; as you’re sitting there, did you raise the issue of his

behavior on the record or in front of everybody there?

{53} “* * *

{54} “A Again, during this meeting I was trying to ascertain what specifically

he had a problem with.

{55} “Q Okay. All right.

{56} “A And that did not occur. What I did feel and what I was

communicating to [Gillam] is that he was taking issue with my performance as a

result of my complaint against him for sexually harassing me.

{57} “Q: Okay. But you can’t identify what specifically -- do you have any

idea what he may have been referring to as far as work performance?

{58} “A: No.” (Bahar Depo. II, pp. 80-83.)

{59} In her briefs, Appellant relies on the quote, “what I was communicating

to [Gillam] is that that he was taking issue with my performance as a result of my

complaint against him for sexually harassing me,” to demonstrate that she had

engaged in protected activity, and that Gillam was aware she was engaging in

protected activity because “[Appellant] testified about a conversation she had with

[Gillam] a week before he vote to fire her.” (Appellant’s Reply Brf., p. 5; see also

Appellant’s Brf., p. 9.) To the contrary, the quote, in its context, reveals that

Appellant apparently believed that by pressing Gillam for specific examples of her
 -19-

poor work performance at the staff meeting, which he did not or could not provide,

she was forcing him to acknowledge to himself that his complaints about her work

performance were unfounded and motivated by anger and resentment. The quote

clearly speaks to what Appellant believed she was communicating during the staff

meeting, not that she actually verbalized her beliefs that Gillam was retaliating

against her for her claims that he engaged in sexual harassment. The record reflects

that she did not verbalize these claims.

{60} In fact, Appellant conceded a few pages earlier in that same deposition

that she never raised the issue of Gillam’s sexual harassment and retaliatory

behavior at the staff meeting. (Bahar Depo. II, p. 80.) She also conceded at this

deposition that she never confronted Gillam about her complaints against him or

asked him to stop making sexual comments. (Bahar Depo. II, p. 32.) Accordingly,

her claim that she engaged in protected activity during the staff meeting must fail. No

evidence of record establishes that she engaged in protected activity, before or

during the staff meeting, nor does it establish Gillam’s knowledge, or any other

member of council, that she was trying to engage in protected activity.

{61} At oral argument, Appellant’s counsel cited Appellant’s deposition

testimony in general in an attempt to argue that she told every member of counsel

that Gillam was retaliating against her for reporting the incident of alleged sexual

harassment in 2001. This assertion is not supported by the record, however. At her

deposition, Appellant was asked whether she told any of the members of council that

she believed that Gillam was retaliating against her based upon her sexual
 -20-

harassment allegations. Appellant responded that she complained about retaliation

to the “members of City Council,” and clarified that she discussed alleged retaliation

of some kind with “[e]ach member of Council * * * including Council President

Sammarone.” (Bahar Depo. II, p. 59.) She then listed, “Councilman Swierz, John

Swierz; Councilman Michael Rapovy; Councilman Ron Sefcik[; and] Councilwoman

Carol Righetti, Rimedio-Righetti.” (Bahar Depo. II, p. 60.) She stated that she had

conversations with Hudson, Atkinson, Sammarone, and Rimedio-Righetti after the

February 14, 2006 meeting at the law director’s office. She was next asked, “[a]nd

you told each of them individually, had conversations that Artis Gillam is retaliating

against me because of sexual harassment conduct?” She responded, “[w]hat I was

explaining to them, once again, back to what I’ve said in my prior deposition and also

what I’ve been saying is that, in talking specifically about the incident of sexual

harassment, specifically Councilman Atkinson and Councilman Fortune, okay.”

(Bahar Depo. II, p. 60.)

{62} When Appellant was pressed for specific instances of protected activity

that she reported to members of city council, she concedes that, although she

complained about Gillam’s general treatment of her to the members of council, she

did not tell any of them that she believed she was being terminated in retaliation for

rejecting his alleged advances in 2001. (Bahar Depo. II, p. 98.) Appellant admitted

that she did not accuse Gillam of retaliation for reporting sexual harassment at the

meeting at the city law department. (Bahar Depo. II, pp. 93-94.) She also admitted

that she approached Hudson, Atkinson, Sammarone, and Rimedio-Righetti after the
 -21-

law department meeting to ascertain whether they were part of the group of council

members intending to vote in favor of her termination, not to report her belief that she

was the subject of retaliatory discharge. (Bahar Depo. II, p. 96.)

{63} Later in her testimony, she claims that Sammarone and Rimedio-

Righetti “were aware that [she] felt that [she] was being retaliated against by

Councilman GiIlam.” (Bahar Depo. II, p. 98.) She then concedes that she did not

know whether Sammarone and Rimedio-Righetti were aware that her claim of

retaliation was predicated on her 2001 allegations, because she never informed them

about the incident. It is clear that she told no one about any other alleged incident.

Appellant’s deposition testimony established, and the record reflects, that while she

complained to several members of council about Gillam’s hostile treatment in

general, she never attributed his treatment of her to allegations of sexual

harassment, in 2001 or any other time. Again, she “specifically” reported this

incident, by memo, to only Atkinson and Fortune. (Bahar Depo. II, p. 60.)

{64} With respect to Hudson and Atkinson, Appellant states that “[her]

discussion with Councilman Atkinson and * * * Hudson, who were privy to the fact

that [she] had reported the sexual harassment of Councilman Gillam, [she did] recall

saying to them that [she] felt that it was as a result of [her] reporting it that

Councilman Gillam was continuing on his path to try to terminate [her].” (Bahar

Depo. II, p. 98.) She further states that she spoke “specifically with Councilman

Atkinson and Hudson, specifically referring to the prior sexual harassment complaint.”

(Bahar Depo. II, p. 98.) Therefore, despite Appellant’s assertion at oral argument
 -22-

that she told every member of city council that she was the subject of unlawful

retaliation, the record demonstrates that Hudson and Atkinson were the only two

remaining council members who were aware of Appellant’s 2001 allegations, and

they were the only two council members that she approached after the meeting at the

law department to accuse Gillam of unlawful retaliation, based solely on her 2001

allegations.

{65} While it is clear that the foregoing evidence, taken in Appellant’s favor

for the purpose of summary judgment, may establish that she engaged in protected

activity, there is no evidence to link such activity to her termination. Appellant offered

the affidavits of Hudson and Atkinson in support of her brief in opposition to the

summary judgment motion. Neither affiant states that they informed anyone else

about Appellant’s accusations, or that they shared her allegation at any time with any

other councilmen. This record shows that the only instance where Appellant

engaged in protected activity occurred in 2001, almost five years before she was

fired. Any other “retaliation” Appellant discussed with other members of council was

not based on protected activity, but on a general dislike or distaste. Hence, her

attempts to base a prima facie case of unlawful retaliation on temporal proximity to

protected activity, alone, must fail.

{66} In her second argument in this appeal, Appellant cites Thatcher v.

Goodwill Industries of Akron (1997), 117 Ohio App.3d 525, 535, 690 N.E.2d 1320, for

the proposition that the failure of Atkinson and Hudson to take remedial action
 -23-

following disclosure of Appellant’s 2001 allegation is somehow evidence that her

discharge was retaliatory.

{67} The Thatcher Court stated:

{68} “The causal relationship between protected activity and termination is

established by [the plaintiff’s] factual allegations that (1) by virtue of his complaints,

his employer knew that he was engaging in a protected activity; (2) his complaints to

President Sonnett over the course of 1993 resulted not in any remedial action by

Goodwill; on the contrary, Sonnett reacted angrily at one point, threatening physical

violence upon Thatcher when the latter brought up the subject at a meeting; (3)

Thatcher was terminated just three weeks after Sonnett learned that Thatcher had

taken his complaints to the board of trustees, and during these weeks Sonnett and

the board discussed the Thatcher affair; and (4) Goodwill reacted more mildly to

more egregious actions by other employees than it did to Thatcher’s conduct, e.g., by

taking no action against McCarty in response to complaints about his allegedly

abusive behavior by those allegedly victimized.” Id.

{69} The facts presented in this case do not constitute the typical retaliation

fact pattern as did the facts in Thatcher, and, as a consequence, Thatcher is

inapplicable in this case. Typically, as in Thatcher, a plaintiff reports discrimination or

harassment, no remedial action is taken but the allegations are widely known, and

the plaintiff is shortly thereafter terminated or otherwise retaliated against. In such a

fact pattern, the failure to take remedial action may be evidence of retaliation.

Appellant admits that she selectively reported her allegation in 2001 to only Fortune,
 -24-

Hudson and Atkinson and not to the remaining four members of council or its

president. Appellant also expressly told Hudson, Atkinson and then-councilman

Fortune that she did not wish to take any action against Gillam. In fact, she asked

that the allegations of harassment remain confidential. Appellant cannot be

permitted to selectively allege sexual harassment but demand confidentiality, thereby

preventing a timely investigation of the allegations, then claim that the acquiescence

to her request on the part of those select few is evidence of retaliation on the part of

her employers as a group five years later.

{70} This record clearly reflects that, at no point between November of 2001

and February 16, 2006, did Appellant inform Hudson and Atkinson that she had

changed her mind and wanted to report the alleged 2001 incident to council as a

whole, or that she wanted city council to investigate her claims. Appellant had

several opportunities to make her allegations public, but she did not raise her

allegations at the staff meeting, at the meeting at the law department, or at the

council meeting when she was discharged. In fact, the record reflects that she was

completely silent to all members of council, including Hudson and Atkinson, about

any further alleged incidents. This record reflects that she reported one incident of

alleged harassment to three of her seven co-equal employers, requesting that they

take no action, and then dropped the matter for several years. Consequently,

Appellant cannot rely upon the lack of remedial action or investigation of her claims

alone to establish the causal connection between her protected activity and her

adverse employment action.
 -25-

{71} Finally, at oral argument, Appellant asserted a “cat’s paw” theory of

liability for the first time in this case. The “cat’s paw” theory in the employment

discrimination context refers to a situation in which a biased subordinate, who lacks

decisionmaking power, influences the unbiased decisionmaker to make an adverse

hiring decision, thereby hiding the subordinate’s discriminatory intent. EEOC v. BCI

Coca-Cola Bottling Co., 450 F.3d 476, 484 (10th Cir.2006); see also Arendale v. City

of Memphis, 519 F.3d 587, 604 fn. 13 (6th Cir.2008) (“When an adverse hiring

decision is made by a supervisor who lacks impermissible bias, but that supervisor

was influenced by another individual who was motivated by such bias, this Court has

held that the employer may be held liable under a ‘rubber-stamp’ or ‘cat’s paw’ theory

of liability.”)

{72} Appellant argues that Gillam influenced the other city council members

to terminate her based on work performance, thereby hiding his retaliatory intent.

Even assuming that Appellant had established that Gillam was aware of her

protected activity, and the record does not appear to support such an assumption,

Appellant has not offered any evidence to show that Gillam in any way influenced the

votes of the remaining members of council. Unlike a typical “cat’s paw” case, where

the unbiased decisionmaker relies upon the biased subordinate’s assessment of the

plaintiff’s job performance for the purposes of terminating his or her employment,

there is no evidence that any other members of council relied on Gillam’s evaluation

of Appellant’s work when they voted in favor of her termination. Appellant concedes

that she worked for all of the members of city council and that she provided varying
 -26-

degrees of support and assistance to each of them, as required. Each member,

then, was in a position to independently evaluate her work. See Wilson v. Stroh

Cos., 952 F.2d 942, 946 (6th Cir.1992) (when a decisionmaker makes a decision

based on an independent investigation, any causal link between the subordinate’s

retaliatory animosity and the adverse action is severed). Appellant has offered

absolutely no evidence on which we can rely to impute the allegedly retaliatory intent

of Gillam to the other members of city council. The trial court held, and we are bound

by its final order, that no sexual harassment took place. Appellant has no evidence

of record, other than base supposition, to show that Gillam knew she was engaging

in protected activity. Hence, Appellant fails to establish the requisite causal

connection on which to base her retaliation claim.

{73} In summary, Appellant attempts to argue that there is such a close,

temporal proximity to her engagement in protected activity and her termination that

this alone should have caused the trial court to find she had established a prima facie

case of unlawful retaliation. The record reflects, however, that the only instance of

record where Appellant engaged in protected activity to the knowledge of at least

some of her employers was in 2001, approximately five years before her firing. Lack

of investigation on the part of these select few of several employers is not, by itself,

evidence of a causal connection between protected activity and termination because

Appellant both selectively reported her allegation and specifically requested both that

no action be taken (pending further incidents) and that her report remain confidential

to those specific persons. Finally, Appellant fails to establish causal connection for a
 -27-

prima facie case in her “cat’s paw” theory because she has presented no evidence

that the allegedly biased decisionmaker directly influenced the other (co-equal)

decisionmakers to terminate her. Because Appellant has not established a causal

connection between her protected activity and her termination, Appellant’s sole

assignment of error is overruled, and the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Vukovich, J., concurs.