Martcheva v. Dayton Bd. of Edn.

[Cite as Martcheva v. Dayton Bd. of Edn., 2021-Ohio-3524.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

JENNIFER MARTCHEVA :
:
Plaintiff-Appellant : Appellate Case No. 29144
:
v. : Trial Court Case No. 2019-CV-3897
:
DAYTON BOARD OF EDUCATION, et : (Civil Appeal from
al. : Common Pleas Court)
:
Defendants-Appellees :

...........

OPINION

Rendered on the 1st day of October, 2021.

...........

PETER K. NEWMAN, Atty. Reg. No. 0010468, 594 Garden Road, Dayton, Ohio 45419
Attorney for Plaintiff-Appellant

DAVID J. LAMPE, Atty. Reg. No. 0072890, JASON R. STUCKEY, Atty. Reg. No.
0091220, AARON ROTHEY, Atty. Reg. No. 0098825, 312 North Patterson Boulevard,
Suite 200, Dayton, Ohio 45402
Attorneys for Defendants-Appellees

.............

EPLEY, J.
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{¶ 1} This appeal stems from an employment dispute between Plaintiff-Appellant

Jennifer Martcheva and Defendant-Appellee the Dayton Board of Education (“BOE”).

Various school employees and students are also parties to the case. Martcheva appeals

the judgment of the trial court sustaining the BOE’s and individual defendants’ motions

for summary judgment while overruling her related motion for summary judgment against

the BOE and named defendants. Martcheva also appeals the trial court’s judgment in

relation to its determination of damages pursuant to her administrative appeal. Finally,

Martcheva appeals the trial court’s judgment granting attorney fees to the BOE. For the

reasons that follow, the trial court’s judgments will be affirmed.

I. Facts and Procedural History

{¶ 2} Martcheva was hired by the BOE in 2009 to teach social studies at Louise

Troy Elementary School. She taught seventh and eighth graders there for three years

before being transferred to Charity Adams Earley Academy for Girls (“Charity Adams”)

after the 2011-2012 school year. At Charity Adams, Martcheva taught seventh and eighth

grade social studies through the 2017-2018 school year. She then transitioned to teaching

fourth grade, beginning in 2018-2019.

{¶ 3} As a fourth-grade teacher, Martcheva co-taught with Kelli Vukovic-Burkhardt.

Each woman had her own homeroom class but focused on different subjects; Martcheva

taught language arts and social studies while Vukovic-Burkhardt taught math and

science. Their classes switched twice during the day.

{¶ 4} In the fall of 2018, several girls (all from Vukovic-Burkhardt’s homeroom

class) made accusations against Martcheva. On October 1, 2018, Student One told her
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mother, Tequina Clark, that Martcheva said she wanted to strangle a girl in her class

because the girl would not stop talking. Student One also informed her mother that she

heard Martcheva say she wanted to bring a gun to school. According to her mother,

Student One independently told four adult family members the same story.

{¶ 5} On October 2, 2018, Clark informed Carla Goins, the school’s principal, and

America Henson, the assistant principal, about the allegations. Student One confirmed to

Goins and Henson that it was Martcheva who made the statements and that she was

fearful. The administrators had Clark and Student One write statements, and Student One

provided the names of other students who may have heard the comments.

{¶ 6} After the meeting with Student One and Clark, Goins notified the district’s

human resources department. Goins was instructed to collect statements from anyone

who may have overheard the comments made by Martcheva.

{¶ 7} On October 3, 2018, Henson spoke with the five students that Student One

suggested might have heard the comments. Henson asked the students open-ended

questions and Students Two and Three stated that Martcheva had made threats against

students. After speaking with them, Henson directed Student Two and Student Three to

go to the school resource officer to write down statements. Student Two stated that

Martcheva said she was going to use a shotgun to kill herself. Student Three’s statement

focused on three things: (1) that Martcheva wanted to strangle a particular student

because she was making her mad; (2) that Martcheva was going to bring a shotgun to

school to shoot herself in the head; and (3) that if a particular student were Martcheva’s

child, she would whoop that girl so bad she would go to jail.

{¶ 8} Henson testified that she believed the students, and that one thing in
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particular stood out – each of the students used the word “shotgun” in their accounts, a

term rarely used in the African American community. Goins also testified to that peculiarity

and asserted that she, too, did not believe the girls had made up their statements.

{¶ 9} After reading the girls’ statements, Goins once again contacted human

resources (HR). She explained that there were three students with corroborating accounts

and then turned the statements over to HR. After reviewing the documents, HR

determined that the allegations were serious enough to merit placing Martcheva on paid

administrative leave pending an investigation.

{¶ 10} The same day, HR informed Martcheva that serious allegations had been

made against her and that she would be placed on paid administrative leave. Martcheva

testified that she was extremely confused as to why she was being put on leave, and

once it was explained to her that there was an allegation related to a shotgun, she clarified

that she had talked about how shotguns are used for hunting in a recent lesson about

Ohio history. She was informed that an investigation would be conducted and a

determination about her future would be made based on the findings. Martcheva was then

escorted from the building.

{¶ 11} Later that day, Martcheva sent the following email to David Romick, the

teachers’ union president, to provide further context about her situation.

Late last week (Wednesday and Thursday) I was teaching a lesson over

Ohio History. The passage being taught dealt with “Ohio and the Midwest”

pgs. 14-15. The passage discusses Western v. Eastern Ohio – rural areas

and their livelihoods, as well as Cities like Dayton in the West and their

livelihoods – natural resources v. resources – statewide. I mentioned that I
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grew up on a farm in Eastern KY much like Eastern Ohio with coal mining

and country ways of life. I told a story about my dad being an educator,

pastor, and a hunter by sport. That he had taught all of us kids (3) how to

shoot a gun even when we were small. And if [sic] fact he taught my own

kids how to shoot skeet when they were in fourth grade. We discussed that

I lived on a farm 20 miles away from the nearest grocery store. And that I

have eaten wild game for dinner many times. * * *

{¶ 12} The internal investigation was conducted by Tracy Hines, one of the

district’s school safety liaisons. Hines testified that neither the students nor Martcheva

were interviewed because that had already been done, and to check the students’

credibility, she inquired about their disciplinary records. None of the girls had been

suspended, but one had a discipline referral. After reviewing the statements given by the

students, principals, and Clark, Hines summarized the allegations in a memorandum that

was submitted to HR on October 16, 2018.

{¶ 13} The district conducted a pre-disciplinary hearing on October 30, 2018. In a

report filed on November 16, 2018, the hearing officer, Barbara Stahl, recommended that

Martcheva be fired, and on November 19, 2018, Martcheva was informed of the intent of

the BOE to terminate her contract. On December 18, 2018, the BOE voted to suspend

Martcheva, without pay or fringe benefits, pending the termination proceedings.

{¶ 14} On November 23, 2018, Martcheva requested an administrative hearing

with a referee at the Ohio Department of Education. The hearing was held before referee

John Butz on March 13-14, 2019, and in his May 16, 2019, decision, Butz made several

findings. The referee determined that the BOE had failed to conduct a full and fair
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investigation into the allegations made against Martcheva, going as far as stating that “the

investigation in this matter was inadequate and woefully flawed.” He found that no further

meaningful investigation was conducted after the students made their statements, that

Martcheva was never interviewed by anyone involved in the investigation, and that her

pre-disciplinary hearing was conducted by a district employee who was not impartial. As

to the allegations, Butz found that the students’ statements were not entirely consistent

and that Martcheva “categorically denied” all the allegations against her.

{¶ 15} Ultimately, Butz concluded that the record did not support a finding of good

and just cause to terminate Martcheva and recommended that her contract not be

terminated. Despite the conclusion of the referee, the BOE voted to reject the referee’s

decision, and Martcheva’s contract was terminated on September 17, 2019.

{¶ 16} Through an amended complaint, Martcheva appealed the termination to the

Montgomery County Court of Common Pleas. The complaint also contained numerous

claims: (1) pattern or practice of retaliatory harassment; (2) aiding and abetting

discrimination; (3) wrongful discharge in violation of public policy; (4) breach of implied

contract; (5) promissory estoppel; (6) fraud and misrepresentation; (7) defamation; (8)

tortious interference with a contract, and (9) intentional infliction of emotional distress

against numerous BOE-affiliated parties. Martcheva also sought punitive damages,

attorney fees, and a writ of mandamus. On November 17, 2020, finding that there was

not “substantial and credible evidence to support the board’s decision to terminate

Martcheva,” the trial court ordered the BOE to “immediately reinstate Martcheva to a

teaching position comparable to the position [she] had at the time she was terminated.

* * *. [T]he Board shall compensate Martcheva for any loss of salary [she] has incurred[.]”
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November 17, 2020, Decision and Entry at 33. The court did not determine damages in

its judgment entry.

{¶ 17} A damages hearing was held on January 22, 2021, and both sides were

permitted to file post-hearing briefs. Shortly thereafter, the parties filed motions for

summary judgment, which the trial court decided on April 14, 2021. The trial court granted

the BOE summary judgment on Martcheva’s claims of pattern or practice of retaliatory

harassment; hostile work environment; aiding and abetting discrimination;

misrepresentation and fraud; defamation; intentional infliction of emotional distress; and

attorney fees relating to certain charges in the amended complaint. The court also granted

summary judgment in the BOE’s favor on counts relating to punitive damages and various

claims against school employees in their individual capacities. Finally, it denied the BOE

summary judgment on Martcheva’s claim for attorney fees relating to her administrative

appeal. Other claims, not at issue in this appeal, were resolved by judgment on the

pleadings.

{¶ 18} On April 30, 2021, the trial court entered a final decision as to damages

related to Martcheva’s termination. The court ordered the BOE to pay Martcheva the

following: (1) $22,281.75 for back-pay; (2) $496.80 for health insurance premiums; (3)

$1,347.12 for COBRA dental insurance premiums; (4) $3,000 for health spending account

contributions; (5) $19,060.12 to the State Teachers Retirement System; (6) any

applicable penalties, taxes, and interest. The ordered payments were, in some instances,

significantly less than what Martcheva believed she was due.

{¶ 19} Martcheva filed a motion for reconsideration on May 4, 2021. In it, she

renewed a previously-filed motion for reconsideration related to decisions awarding the
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BOE attorney fees and expenses. Martcheva also requested that the trial court sanction

the BOE’s attorney. The court denied both requests.

{¶ 20} Martcheva has raised six assignments of error on appeal. We will address

them in a manner that facilitates our analysis.

II. Failure to conform to Appellate Rules

{¶ 21} In her first and second assignments of error, Martcheva claims that the trial

court erred in “not providing [her] with a make-whole remedy for her damages” and

“denying [her] motion for attorney fees[.]” Beyond the assignments of error, however,

there is a non-compliance with the Ohio Rules of Appellate Procedure.

{¶ 22} According to App.R. 12(A)(2), when a party “fails to identify in the record the

error of which the assignment of error is based or fails to argue the assignment separately

in the brief,” an appeals court may disregard that assignment of error. Further, under

App.R. 16(A)(7), an appellant’s brief must contain the arguments of the appellant and

reasons in support of the contentions, “with citations to the authorities, statutes, and parts

of the record on which appellant relies.”

{¶ 23} “The burden of affirmatively demonstrating error on appeal rests solely with

the appealing party. * * * It is not the duty of this court to search the record for evidence

to support an appellant’s argument as to alleged error.” Shumate v. Gahanna, 10th Dist.

Franklin No. 02AP-881, 2003-Ohio-1329, ¶ 6.

III. Damages

{¶ 24} In her first assignment of error, Martcheva urges this Court to find that the

trial court erred in its damages determination. There are several problems with this

argument, however. First, Martcheva makes no argument in her favor. She says the trial
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court erred in its determination of damages, but never explains how or why. In lieu of

arguments, Martcheva has compiled a chart with three columns: (1) “Martcheva’s

damages claims”; (2) “The Board’s responses”; and (3) “What the trial court awarded.”

Although debatably educational, providing a chart with what the parties proposed and

then the court’s outcome is not an argument. Further, Martcheva makes no assertion as

to why she is entitled to her desired damages.

{¶ 25} Second, Martcheva has not established the damages amount with certainty.

A public employee who has been reinstated after a period of wrongful termination may

recover compensation for the time she was wrongfully excluded from employment

“provided the amount recoverable is established with certainty.” State ex rel. Martin v.

Columbus Dept. of Health, 58 Ohio St.2d 261, 389 N.E.2d 1123 (1979), paragraph one

of the syllabus. “With certainty” refers to a “particular amount [that] has been precisely

determined as to its value in dollars and cents.” State ex rel. Hamlin v. Collins, 9 Ohio

St.3d 117, 120, 549 N.E.2d 520 (1984). Again, the only proof Martcheva has presented

this Court is a chart with her requests, the BOE’s response, and the award she received

from the trial court. The chart does not rise to the level of certainty.

{¶ 26} Finally, even if Martcheva had met the standards of App.R. 12 and 16 or

had established the damages with certainty, this assignment of error would still fail

because we review the trial court’s decision for an abuse of discretion. Jordan v. Ohio

Civ. Rights Comm., 12th Dist. Fayette No. CA2008-09-034, 2009-Ohio-1208, ¶ 11. To

constitute an abuse of discretion, a trial court’s action must be arbitrary, unreasonable, or

unconscionable. Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 232,

466 N.E.2d 875 (1984). When applying the abuse of discretion standard, an appellate
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court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med.

Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).

{¶ 27} In this case, the trial court’s decision was reasonable. In fact, the court

dedicated over 20 pages in its April 30, 2021 Decision and Entry to its explanation and

calculation of the damages. Based on our review of the record, we conclude that the trial

court did not abuse its discretion and overrule Martcheva’s first assignment of error.

IV. Bad Faith

{¶ 28} In her second assignment of error, Martcheva argues that the trial court

abused its discretion by not granting attorney fees because “the Board acted in bad faith.”

{¶ 29} “Ohio follows the ‘American Rule,’ which ‘does not permit the prevailing

party to recover attorney fees, in the absence of statutory authorization, as part of the

costs of litigation.’ ” State ex rel. New Wen, Inc. v. Marchbanks, 163 Ohio St.3d 14, 2020-

Ohio-4865, 167 N.E.3d 934, ¶ 5, quoting Sorin v. Warrensville Hts. School Dist. Bd. of

Edn., 46 Ohio St.2d 177, 179, 347 N.E.2d 527 (1976). There is no statutory authorization

found in R.C. 3319.16 (the Revised Code section dealing with teacher contract

terminations), but there is an exception carved out for bad faith.

{¶ 30} Much like the first assignment of error, Martcheva here makes very little

effort to raise an argument as to how the BOE acted in bad faith. She asserts that the

statement of facts from one of her trial court briefs (administrative appeal brief)

establishes the bad faith, but that is insufficient. “It is well-established that the Rules of

Appellate Procedure do not permit parties to incorporate by reference arguments from

other sources.” (Citations omitted.) Mancz v. McHenry, 2d Dist. Greene No. 2019-CA-74,

2021-Ohio-82, ¶ 88. The administrative appeal brief, though, incorporates by reference
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allegations from her amended complaint. As the BOE argues, “her allegations of bad faith

are self-supporting; she alleged bad faith in her Amended Complaint and is now citing to

[it] as proof of that bad faith.” Appellee’s brief at 6.

{¶ 31} Consequently, Martcheva’s second assignment of error is overruled.

V. BOE Motion for Summary Judgment

{¶ 32} In her third assignment of error, Martcheva claims that the trial court erred

in granting the BOE’s motion for summary judgment on her claims for retaliation, hostile

work environment reverse race discrimination, fraud and misrepresentation, and

intentional infliction of emotional distress.

{¶ 33} Pursuant to Civ.R. 56(C), a movant is entitled to summary judgment when

that party demonstrates that there is (1) no issue as to any material fact; (2) that the

moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can

come to only one conclusion, and that conclusion is adverse to the non-moving party.

Rhododendron Holdings, LLC v. Harris, 2021-Ohio-147, 166 N.E.3d 725, ¶ 22 (2d Dist.).

{¶ 34} “The burden of demonstrating that no genuine issues exist as to any

material fact falls upon the moving party requesting a summary judgment.” Harless v.

Willis Day Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). Once the

moving party has satisfied its burden of showing that there is no genuine issue of material

fact, the burden shifts to the nonmoving party to set forth specific facts showing a genuine

issue for trial. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The

nonmoving party cannot rely upon the mere allegations or denials in the pleadings but

must provide evidence setting forth specific facts showing that there is a genuine issue of

material fact for trial. Civ.R. 56(E). Accord Geloff v. R.C. Hemm’s Glass Shops, Inc., 2021-
 -12-

Ohio-394, 167 N.E.3d 1095, ¶ 14 (2d Dist.). When the standard is met, summary

judgment must be awarded as a matter of law.

{¶ 35} We review the trial court’s ruling on a summary judgment motion de novo.

Schroeder v. Henness, 2d Dist. Miami No. 2012-CA-18, 2013-Ohio-2767, ¶ 42.

Retaliatory Harassment

{¶ 36} In its April 14, 2021 Decision and Entry, the trial court granted the BOE

summary judgment on Martcheva’s claim for a pattern or practice of retaliatory

harassment.

{¶ 37} According to R.C. 4112.02(I), it is an unlawful discriminatory practice “[f]or

any person to discriminate in any manner against any other person because that person

has opposed any unlawful discriminatory practice * * * or because that person has made

a charge, testified, assisted, or participated in any manner in any investigation,

proceeding, or hearing under 4112.01 to 4112.07 of the Revised Code.” R.C. 4112.02(I).

Retaliation can be established through either direct or circumstantial evidence. Reid v.

Plainsboro Partners, III, 10th Dist. Franklin Nos. 09AP-442, 09AP-456, 2010-Ohio-4373,

¶ 55.

{¶ 38} If the record establishes direct evidence of retaliation, there is no need to

go further in the analysis. Absent direct evidence establishing retaliation, however, “an

inference of retaliation may be reached after engaging in the burden shifting framework

established in McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973)].” Id. To establish retaliation, a plaintiff must demonstrate that: (1) he

or she engaged in a protected activity; (2) the employer knew that he or she participated

in the protected activity; (3) the employer engaged in retaliatory conduct; and (4) a causal
 -13-

link exists between the protected activity and the adverse action. Shaw v. Access Ohio,

2018-Ohio-2969, 118 N.E.3d 351, ¶ 25 (2d Dist.).

{¶ 39} If the plaintiff can establish a prima facie case, the burden shifts to the

employer “to articulate some legitimate, nondiscriminatory reason” for the termination.

Hapner v. Tuesday Morning, Inc., 2d Dist. Montgomery No. 19395, 2003-Ohio-781, ¶ 14.

The burden is not of persuasion, but of production, and if the employer can articulate

some legitimate nondiscriminatory basis for the adverse employment action, then “the

burden shifts back to the plaintiff to show, by a preponderance of the evidence, that the

proffered reason was really a pretext for unlawful discrimination.” Wholf v. Tremco, Inc.,

2015-Ohio-171, 26 N.E.3d 902, ¶ 16 (8th Dist.). “‘To establish pretext, a plaintiff must

demonstrate that the proffered reason (1) has no basis in fact, (2) did not actually motivate

the employer’s challenged conduct, or (3) was insufficient to warrant the challenged

conduct.’” Cavins v. S&B Health Care, Inc., 2015-Ohio-4119, 39 N.E.3d 1287, ¶ 92 (2d

Dist.), quoting Knepper v. Ohio State Univ., 10th Dist. Franklin No. 10AP-1155, 2011-

Ohio-6054, ¶ 12.

{¶ 40} In this case, the trial court found, and we agree, that Martcheva had

engaged in a protected activity – she filed two complaints with the Ohio Civil Rights

Commission (OCRC). See Ellis v. Jungle Jim’s Market, Inc., 2015-Ohio-4226, 44 N.E.3d

1034, ¶ 51 (12th Dist.) (filing a OCRC complaint is a protected activity). The first

complaint, a discrimination charge, was filed on November 26, 2018. She then filed an

amended complaint on February 5, 2019, alleging that she was retaliated against and

faced discrimination because of her race. Martcheva later withdrew the charges before

the OCRC submitted any recommendations.
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{¶ 41} We also agree with the trial court that even though Martcheva engaged in

a protected activity and established a prima facie case, the BOE had a legitimate,

nondiscriminatory reason for terminating her contract. Under the second phase of the

McDonnell Douglas analysis, a defendant meets its burden by putting forth evidence that

“taken as true, would permit the conclusion that there was a nondiscriminatory reason for

the adverse action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742,

125 L.Ed.2d 407 (1993). The BOE had several such reasons.

{¶ 42} First, the BOE points to statements made by multiple students which

accused Martcheva of making inappropriate comments in the classroom. As noted earlier,

the students accused Martcheva of making statements related to bringing a shotgun into

the classroom and doing harm to students and herself. Assistant Principal Henson’s

testimony at the administrative hearing confirmed the students’ statements. Further, the

BOE’s decision to suspend and then terminate Martcheva’s contract was based on the

students’ statements. Finally, it should also be noted that Martcheva conceded that the

BOE satisfied its burden. See Response to Board Motion at 17 (“After the Board satisfied

its burden of production, the burden shifts back to Plaintiff to show that the Board’s

articulated reason is a pretext for retaliation[.]”). We conclude that the BOE met its burden

to show a legitimate, nondiscriminatory reason for termination, and the burden shifted

back to Martcheva to demonstrate that the BOE’s reason was just pretext for

discrimination.

{¶ 43} To establish pretext, a plaintiff must show that the submitted reason (1) has

no basis in fact; (2) did not actually motivate the employer’s contested conduct; or (3) was

insufficient to warrant the contested conduct. Cavins v. S&B Health Care, Inc., 2015-Ohio-
 -15-

4119, 39 N.E.3d 1287, ¶ 92 (2d Dist.). “Regardless of which option is chosen, the plaintiff

must produce sufficient evidence from which the trier of fact could reasonably reject the

employer’s explanation and infer that the employer intentionally discriminated against

him.” Knepper v. Ohio State Univ., 10th Dist. Franklin No. 10AP-1155, 2011-Ohio-6054,

¶ 12. A reason is not proven to be pretext for discrimination unless it is demonstrated that

the reason was false, and that discrimination was the real reason. Id.

{¶ 44} Martcheva asserts that the reasons given by the BOE have no basis in fact.

To support this argument, she posits that the Ohio Department of Education referee found

that the BOE did not have good and just cause to terminate her as required by R.C.

3319.16. She further contends that the trial court’s finding that there was not “substantial

and credible evidence * * * to support the Board’s decision to terminate Martcheva” leads

to the conclusion that the BOE’s reasons for terminating her contract were merely

pretextual. We disagree.

{¶ 45} Martcheva believes that the BOE made a mistake when it terminated her

contract, but she has not gone the necessary next step to demonstrate that the BOE’s

reason for firing her was false and was just a coverup to terminate her because she filed

a complaint with the Ohio Civil Rights Commission. As the trial court found below,

Martcheva presented no evidence establishing pretext, a burden she bore. She arguably

has presented evidence to demonstrate that she should not have been fired, a position

shared by the trial court, but we see no proof that rises to the level of affirmatively proving

her contract was terminated for retaliatory reasons.

{¶ 46} We find, as the trial court did, that Martcheva failed to meet her burden on

summary judgment as to pretext. The BOE was entitled to summary judgment as to
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Martcheva’s retaliation claim.

Reverse Race Discrimination and Hostile Work Environment

{¶ 47} The trial court also granted the BOE summary judgment as to Martcheva’s

hostile work environment reverse race discrimination claim, a decision she now appeals.

{¶ 48} “An employee pursuing race discrimination claims under R.C. 4112.02 may

prevail in one of two ways: by presenting either direct or indirect evidence to prove that

[the] employer was motivated by a race-based animus when it took an adverse

employment action against [her]. Absent direct evidence of discrimination, an employee

must proceed under the burden-shifting, indirect-evidence approach set forth in

McDonnell Douglas [Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973)].” Grooms v. Supporting Council of Preventative Effort, 157 Ohio App.3d 55, 2004-

Ohio-2034, 809 N.E.2d 42, ¶ 20 (2d Dist.).

{¶ 49} In cases alleging reverse race discrimination, a plaintiff must prove (1)

background circumstances supporting the inference that the defendant was the unusual

employer who discriminated against non-minority employees; (2) the defendant took an

action adverse to the plaintiff’s employment; (3) the plaintiff was qualified for the position;

and (4) the defendant treated the plaintiff disparately from similarly situated minority

employees. Mowery v. Columbus, 10th Dist. Franklin No. 05AP-266, 2006-Ohio-1153,

¶ 44.

{¶ 50} If the employee establishes a prima facie case, the burden of production

then shifts to the employer who “must articulate a non-discriminatory reason for taking an

adverse employment action against the employee.” Grooms at ¶ 21, citing McDonnell

Douglas. If the employer is successful, the burden shifts back to the employee to prove
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that the stated non-discriminatory reason for the adverse action was pretextual. Id.

{¶ 51} Here, the trial court correctly determined that there was no direct evidence

in the record of discrimination. Martcheva argues that her direct evidence came in the

form of her testimony that Principal Goins commented that she wanted an all-African

American teaching staff at Charity Adams and that Goins criticized Caucasian staff

members for allegedly disciplining African American students more harshly than their

Caucasian counterparts.

{¶ 52} We cannot find any admissible evidence in the record that Goins ever made

the purportedly discriminatory comments. Martcheva was not present when Goins

supposedly made the statement about wanting an all-African American staff to another

teacher, Michelle Payne-Jones; instead, she learned about it from Vukovic-Burkhardt,

who allegedly heard about it from Payne-Jones. That sort of statement, heard third hand,

is inadmissible hearsay.

{¶ 53} Martcheva contends that it should be admissible, under the party-opponent

hearsay exception (Evid.R. 801(d)(2)), but that argument is unpersuasive. Had Martcheva

heard Goins make the purported remarks about wanting an all-African American staff, the

statement, while hearsay, would be admissible under Evid.R. 801(d)(2). But Martcheva

was told by Vukovic-Burkhardt, who was told by Payne-Jones, who was supposedly told

by Goins. It would, conceivably, be possible for Goins’s supposed statement to be

admissible under Evid.R. 805 (hearsay within hearsay), but each link in the chain between

Goins and Martcheva would have to conform to the rule and fit under a hearsay exception.

We do not have that here. Further, other courts have been reluctant to allow hearsay

within hearsay in the discrimination context because the statements are oftentimes
 -18-

unreliable. Shorter v. Memphis Light, Gas & Water Co., 252 F.Supp.2d 611 (W.D. Tenn.

2003) (co-worker’s assertion that he heard another co-worker state that he heard a racist

remark cannot be used because it constitutes double hearsay).

{¶ 54} Martcheva also asserts that there was direct evidence of reverse race

discrimination in the form of the testimony of Tamara Milner, an African American teacher

at the school. This alleged testimony is not in the record, however, and cannot be

considered. Because there is no direct evidence, we must use the burden-shifting

analysis of McDonnell Douglas.

{¶ 55} To be successful on a reverse racial discrimination claim, Martcheva must

prove (1) background circumstances supporting the inference that the defendant was the

unusual employer who discriminated against non-minority employees; (2) that the

defendant took an action adverse to the plaintiff’s employment; (3) that the plaintiff was

qualified for the position; and (4) the defendant treated the plaintiff disparately from

similarly situated minority employees. Mowery, 10th Dist. Franklin No. 05AP-266, 2006-

Ohio-1153. She fails to advance any argument relating to these factors in her brief, and

there is nothing in the record that would lead us to conclude that Martcheva could meet

any of these factors.

{¶ 56} While Martcheva has captioned this assignment of error as “Martcheva’s

claim for hostile work environment reverse race Discrimination,” there is no mention of,

let alone argument for, a hostile work environment claim. Therefore, we find that

Martcheva failed to meet her burden on summary judgment. The BOE was entitled to

summary judgment as to Martcheva’s reverse racial discrimination claim and, to the

extent it was raised, her hostile work environment claim.
 -19-

Fraud and Misrepresentation

{¶ 57} Like the claims of retaliation and hostile work environment reverse race

discrimination before it, the trial court granted the BOE summary judgment on

Martcheva’s fraud and misrepresentation claims.

{¶ 58} A claim of fraud has the following elements: (1) a representation (or

concealment of fact when there is a duty to disclose); (2) that is material to the transaction;

(3) made falsely, with knowledge of its falsity or with such utter disregard and

recklessness as to whether it is true or false; (4) with intent to mislead another into relying

upon it; (5) justifiable reliance; and (6) resulting injury proximately caused by the reliance.

Volbers-Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929

N.E.2d 434, ¶ 27.

{¶ 59} The Ohio Rules of Civil Procedure generally only require “notice pleading,”

but under Civ.R. 9(B), allegations of fraud must be pled with specificity. “In all averments

of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with

particularity. Malice, intent, knowledge, and other condition of mind of a person may be

averred generally.” Civ.R. 9(B). Therefore, to properly plead a fraud claim, the plaintiff

must: (1) specify the statement(s) claimed to be false; (2) state in the complaint the time

and place where the statement(s) were made; and (3) identify the defendant claimed to

have made the statement(s). Schroeder at ¶ 19, citing Korodi v. Minot, 40 Ohio App.3d

1, 4, 531 N.E.2d 318 (10th Dist.1987).

{¶ 60} As the BOE argues, Martcheva’s fraud claim fails because it lacks

particularity. In Martcheva’s amended complaint, she alleged that “[i]n its

Nondiscrimination and Nondiscrimination/Harassment policies, the Board made
 -20-

representations to all of its employees, including Plaintiff, that the Board would protect

them against discrimination, harassment, and retaliation.” Amended Complaint at ¶ 108.

She does not, however, identify the portions of the BOE policy that she believes are

untrue. Because this first prong is dispositive, there is no need to analyze the rest.

Martcheva’s fraud claim fails because it lacked the particularity required by Civ.R. 9(B).

Even if we did consider it, her discrimination, harassment, and retaliation claims were

dismissed on other grounds, thus precluding a fraud claim. We turn to her intentional

misrepresentation claim.

{¶ 61} “The elements of a cause of action for intentional misrepresentation are as

follows: (a) a representation or, where there is a duty to disclose, concealment of a fact;

(b) which is material to the transaction at hand; (c) made falsely, with knowledge of its

falsity, or with such utter disregard and recklessness as to whether it is true or false that

knowledge may be inferred; (d) with the intent of misleading another into relying upon it;

(e) justifiable reliance upon the representation or concealment; and (f) a resulting injury

proximately caused by the reliance.” Burns-Boggs v. Howerton, 2d Dist. Montgomery No.

21384, 2006-Ohio-4002, ¶ 23.

{¶ 62} In her brief, Martcheva fails to make an argument about intentional

misrepresentation. After citing a partial statement of law which mentions only one of the

six elements of the tort, Martcheva, inexplicably, spends the next page and half arguing

for a “cat’s paw” theory of liability in a retaliation claim. No argument for intentional

misrepresentation can be found in the amended complaint or summary judgment brief

either. We must conclude, hence, that Martcheva has not properly pled or demonstrated

the claim.
 -21-

{¶ 63} We find that summary judgment was proper as to Martcheva’s claims of

fraud and misrepresentation.

Intentional Infliction of Emotional Distress

{¶ 64} Finally, Martcheva challenges the trial court’s granting of summary

judgment to the BOE on her claim for intentional infliction of emotional distress.

{¶ 65} A claim for intentional infliction of emotional distress requires proof of the

following elements: (1) that the actor either intended to cause emotional distress to the

plaintiff, or knew or should have known that the actions would result in serious emotional

distress to the plaintiff, (2) that the actor’s conduct was so extreme and outrageous as to

go beyond all bounds of decency and was such that it can be considered utterly

intolerable in a civilized society, (3) that the actor’s actions were the proximate cause of

the plaintiff’s psychic injury, and (4) that the mental anguish suffered by the plaintiff is so

serious that no reasonable person could be expected to endure it. Chaney v. Potsdam,

2d Dist. Miami No. 2004-CA-19, 2005-Ohio-603, ¶ 98.

{¶ 66} Only the most extreme wrongs, which do great harm to the norms of a

civilized society, will rise to the level of extreme and outrageous conduct. Brown v. Denny,

72 Ohio App.3d 417, 423, 594 N.E.2d 1009 (2d Dist.1997). “Generally, the case is one in

which the recitation of the facts to an average member of the community would arouse

his resentment against the actor, and lead him to exclaim, ‘Outragous!’ ” Id. quoting 1

Restatement of the Law 2d, Torts, Section 46, Comment d (1965).

{¶ 67} In this case, the trial court found that there was no genuine issue of material

fact as to the second element of Martcheva’s intentional infliction of emotional distress

claim – there was no “extreme” or “outrageous” conduct on the part of the BOE. We agree.
 -22-

The BOE presented evidence that Martcheva was fired after receiving what it considered

credible evidence that she engaged in very detrimental classroom conduct: multiple

students accused her of making threatening statements against students and herself.

Martcheva responded with a list of actions taken by the school district that she claims

were relevant to the second element of her claim. The problem with her evidence is that

none of it even comes close to approaching the level of “extreme” or “outrageous”

conduct. They were simply actions taken by the district with which she disagreed.

{¶ 68} She also did not meet the fourth element – that the mental anguish suffered

by the plaintiff was so serious that no reasonable person could be expected to endure it.

“Serious emotional distress describes emotional injury which is both severe and

debilitating.” Paugh v. Hanks, 6 Ohio St.3d 72, 451 N.E.2d 759 (1983), paragraph three

of the syllabus. The Paugh Court went on to hold that “serious emotional distress may be

found where a reasonable person * * * would be unable to cope adequately with the

mental distress engendered by the circumstances of the case.” Id. at 78. Examples of

serious emotional distress include psychosis, neurosis, phobia, or chronic depression. Id.

{¶ 69} The physical and mental effects Martcheva described in her deposition

(which was the only place she addressed the matter outside the amended complaint)

included anxiety, depression, panic attacks, loss of self-esteem, self-doubt, sleepiness,

and irritability. While we do not wish to diminish what she says she has gone through,

those effects do not rise to the level of being so extreme that no reasonable person could

endure them. She, in fact, did endure them, and has continued to work and raise her

family. Neither has she presented evidence that she has sought professional help, a fact

some courts have held to be necessary in a successful claim. See Day v. Stanley Elec.
 -23-

U.S. Co., Inc., 12th Dist. Madison No. CA95-08-029, 1996 WL 12879 (Jan. 16, 1996)

(summary judgment was proper where appellant submitted no medical testimony or

evidence of treatment for serious emotional distress); Hartwig v. National Broadcasting

Co., 863 F.Supp. 558 (N.D.Ohio 1994).

{¶ 70} We find that there was no genuine issue of material fact as to the second

and fourth elements of Martcheva’s claim, and the trial court properly granted judgment

to the BOE as a matter of law.

{¶ 71} Martcheva’s third assignment of error is overruled.

VI. Claims Against District Employees

{¶ 72} In addition to bringing claims against the BOE, Martcheva also sued

individuals employed by Dayton Public Schools. In her fourth assignment of error,

Martcheva argues that the trial court erred in granting the employees’ motion for summary

judgment on her claims of aiding and abetting discrimination, defamation, punitive

damages, and attorney fees.

Aiding and Abetting Discrimination

{¶ 73} The first part of the summary judgment challenged by Martcheva is her

claim of aiding and abetting discrimination under R.C. 4112.02(J). She makes no

argument in her brief for this claim except that “the district court’s analysis is flawed

because as discussed supra at ? [sic], the Board is not entitled to summary judgment on

Martcheva’s pattern-or-practice of retaliatory harassment claim.” Appellant’s brief at 18.

Even if an argument was made, Martcheva cannot establish that the court’s ruling was

improper.

{¶ 74} R.C. 4112.02(J) states that no person shall “aid, abet, incite, compel, or
 -24-

coerce the doing of any act declared * * * to be an unlawful discriminatory practice, to

obstruct or prevent any person from complying with this chapter * * *, or to attempt directly

or indirectly to commit any act declared * * * to be an unlawful discriminatory practice.”

Courts have held that to aid and abet, a person must “actively participate in, or otherwise

facilitate, another’s discriminatory act in violation of R.C. 4112.02.” Johnson-Newberry v.

Cuyahoga Cty., 2019-Ohio-3655, 144 N.E.3d 1058, ¶ 21 (8th Dist.).

{¶ 75} When a court finds that a defendant is entitled to summary judgment on the

underlying discrimination and retaliation claims, “the court must also necessarily grant

summary judgment on the claim of aiding and abetting those claims.” Weinrauch v.

Sherwin-Williams Co., N.D.Ohio No. 1:18-cv-01696, 2019 WL 3007031, *14 (July 10,

2019).

{¶ 76} We have previously concluded that the BOE was entitled to summary

judgment on Martcheva’s underlying discrimination and retaliation claims; consequently,

her aiding and abetting claim fails as a matter of law. The trial court properly determined

that the defendants were entitled to summary judgment.

Defamation

{¶ 77} The trial court granted the individual defendants summary judgment as to

Martcheva’s defamation claim, finding that the defendants were entitled to immunity.

Martcheva now challenges that ruling.

{¶ 78} “To prevail on a claim of defamation, the evidence must establish (1) a false

and defamatory statement concerning the plaintiff; (2) publication of the statement; (3)

fault; and (4) harm.” Wilson v. Wilson, 2d Dist. Montgomery No. 21443, 2007-Ohio-178,

¶ 12. Defamation can take the form of libel or slander. Libel refers to written or printed
 -25-

defamatory words and slander generally refers to spoken defamatory words. Matikas v.

Univ. of Dayton, 152 Ohio App.3d 514, 2003-Ohio-1852, 788 N.E.2d 1108, ¶ 27 (2d Dist.).

{¶ 79} As to immunity, R.C. 2744.03(A)(6) states that in a civil action brought

against a political subdivision or an employee thereof to recover damages for injury, the

employee is immune from liability unless (1) his or her acts or omissions were manifestly

outside the scope of her employment; or (2) his or her acts or omissions were with

malicious purpose, bad faith, or in a wanton or reckless manner.

{¶ 80} The statute does not define what conduct is “manifestly outside the scope

of employment,” but Ohio courts have often held that “conduct is within the scope of

employment if it is initiated, in part, to further or promote the master’s business.” Jackson

v. McDonald, 144 Ohio App.3d 301, 307, 760 N.E.2d 24 (5th Dist.2001). Accord Coterel

v. Reed, 2016-Ohio-7411, 72 N.E.3d 1159, ¶ 17 (2d Dist.); Curry v. Blanchester, 12th

Dist. Clinton Nos. CA2009-08-010, CA2009-08-012, 2010-Ohio-3368, ¶ 30. “For an act

to fall within the scope of employment, it must be calculated to facilitate or promote the

business for which the [employee or agent] was employed.” (Citations omitted.) Johnson

v. Godsey, 2d Dist. Clark No. 2012-CA-80, 2013-Ohio-3277, ¶ 32.

{¶ 81} “For the purposes of R.C. 2744.03, ‘malice’ refers to ‘the willful and

intentional desire to harm another, usually seriously, through conduct which is unlawful

or unjustified.’ ” Reno v. Centerville, 2d Dist. Montgomery No. 20078, 2004-Ohio-781,

¶ 25, quoting Moffitt v. Litteral, 2d Dist. Montgomery No. 19154, 2002-Ohio-4973, ¶ 96.

“Bad faith” has been defined as a “sinister motive that has no reasonable justification”

and “wanton” conduct implies a failure to exercise any care. Moffitt at ¶ 96. “Reckless”

conduct is “conduct that causes an unreasonable risk of harm.” Id.
 -26-

{¶ 82} We find no evidence in the record to demonstrate that the employee-

defendants acted “manifestly outside the scope of employment.” In fact, we believe that

the actions taken and decisions made by the principals and HR directors were squarely

within the scope of their employment responsibilities. Accordingly, to be successful,

Martcheva must prove that they acted with “malicious purpose, bad faith, or in a wanton

or reckless manner.”

{¶ 83} Martcheva argues that the defendants acted with “malicious purpose, bad

faith, or in a wanton or reckless manner,” and that this is confirmed by the referee’s finding

that “[n]either of the building administrators – Ms. Goins and Ms. Henson – and no one

from the District offices of Human Resources [Spurlock] or Safety and Security [Hines]

ever interviewed Ms. Martcheva with respect to the allegations against her.” Appellant’s

brief at 20, citing Referee’s Decision at 11. Accepting as true that Martcheva was never

interviewed during the district’s investigation, that would certainly not rise to the level of

being malicious, done in bad faith, or wantonness, but we conclude that the failure to

interview Martcheva did not even reach recklessness as reckless conduct is substantially

worse than negligent conduct. Coterel at ¶ 16.

{¶ 84} While the investigation into Martcheva’s conduct may not have been as

thorough as she would have liked, it was at the very least competent. After learning of the

allegations over the phone from Clark, Principal Goins brought Clark and Student One

into the office to speak about the allegations in person. From there, she notified HR and

was told to collect statements from any student that may have overheard Martcheva’s

purported declarations. Assistant Principal Henson then asked the students, one at a

time, open ended questions, and two other students confirmed that Martcheva had made
 -27-

threats against students. After speaking with them, Henson directed Student Two and

Student Three to go to the school resource officer to write down statements. After reading

the girls’ statements and checking on their credibility (the girls’ disciplinary records were

checked to determine if they had an “ax to grind” against Martcheva), Goins once again

contacted HR and explained that there were three students with corroborating accounts

and then turned the statements over to her superiors. The district then conducted a pre-

disciplinary hearing.

{¶ 85} While one could think of ways the investigation could have been more

thorough, it was, at most, negligent. We conclude that because the defendants’ conduct

was neither manifestly outside the scope of their employment, nor done with malicious

purpose, bad faith, or in a wanton or reckless manner, they were entitled to immunity

under R.C. 2744.03(A)(6) against Martcheva’s defamation claim. Thus, there was no

genuine issue of material fact, and summary judgment was properly awarded to the

defendants.

Punitive Damages and Attorney Fees

{¶ 86} The trial court also granted the defendants summary judgment for

Martcheva’s claims regarding punitive damages and attorney fees.

{¶ 87} A claim for punitive damages is a derivative claim and its survival relies on

the survival of at least one of the primary claims. Vickers v. Wren Industries, 2d Dist.

Montgomery No. 20914, 2005-Ohio-3656, ¶ 65. See also Graham v. Am. Cyanamid Co.,

350 F.3d 496, 515 (6th Cir.2003) (a claim for punitive damages is derivative in nature and

“may not provide greater relief than that available under the primary cause of action.”);

Stolz v. J&B Steel Erectors, Inc., 76 F.Supp.2d 696, 703 (S.D. Ohio 2014) (an Ohio
 -28-

punitive damages claim is a derivative action that must be dismissed if the primary claim

does not survive). Here, because all the underlying claims have failed, Martcheva’s claim

for punitive damages must fail as a matter of law.

{¶ 88} Martcheva’s claim to attorney fees fares no better. Ohio law precludes

attorney fees by the prevailing party unless they are authorized by statute. State ex rel.

New Wen, Inc. v. Marchbanks, 163 Ohio St.3d 14, 2020-Ohio-4865, 167 N.E.3d 934, ¶ 5.

R.C. 4112.02(J) does not authorize attorney fees, and further, she was not the prevailing

party. Therefore, Martcheva could not recover attorney fees.

{¶ 89} The fourth assignment of error is overruled.

VII. Martcheva’s Motion for Summary Judgment

{¶ 90} In her fifth assignment of error, Martcheva states that the trial court erred in

overruling her motion for summary judgment against the school district defendants. While

she makes that statement in her section heading, there is no actual argument to that

effect in the subsequent pages. There are arguments made that summary judgment

should not have been granted to the school district defendants, but we find no arguments

in support of her claim that summary judgment should have been granted against the

defendants. Even if those arguments had been made, we already concluded that

summary judgment was properly granted to the employees, which necessarily means it

could not be granted to Martcheva. Her fifth assignment of error is overruled.

VIII. Attorney Fees

{¶ 91} In her sixth and final assignment of error, Martcheva asserts that the trial

court erred in granting the BOE’s motion for attorney fees against her attorney.

{¶ 92} On September 25, 2020, the BOE filed a motion to limit discovery and for a
 -29-

protective order after Martcheva filed a motion to compel the BOE to turn over the

addresses of Students One, Two, Three, and Tamara Milner.

{¶ 93} Civ.R. 37(A) gives a party the ability to move for an order compelling

discovery if the movant has in good faith attempted to obtain the discovery in the normal

course of action. Civ.R. 37(A)(1). If the motion is granted, the trial court shall require (with

a few exceptions) the party whose conduct necessitated the motion, or attorney advising

the conduct, or both to pay the movant’s reasonable expenses incurred in making the

motion, including attorney fees. Civ.R. 37(A)(5)(a). On the other hand, if the motion is

denied, the court may issue a protective order authorized under Civ.R. 26(C) and shall

require the movant, the attorney filing the motion, or both, to pay the reasonable attorney

fees and expenses incurred in opposing the motion unless the motion was substantially

justified. Civ.R. 37(A)(5)(b).

{¶ 94} In this case, the trial court found Martcheva’s request to obtain the

witnesses’ addresses to be not substantially justified because she “moved to compel an

order for the production of witness addresses before so much as making a discovery

request pursuant to the Rules of Civil Procedure.” October 15, 2020 Decision and Entry

at 15. After providing Martcheva the chance to be heard on the matter, the court ordered

that her attorney pay the BOE $470 (the BOE initially requested $1,727) in attorney fees

for having to respond to the motion. The issue for us to decide now is whether the trial

court abused its discretion when it ordered the attorney fees. Bobb Chevrolet, Inc. v.

Dobbins, 4th Dist. Ross No. 01CA2621, 2002-Ohio-4256, ¶ 30.

{¶ 95} To constitute an abuse of discretion, a trial court’s action must be arbitrary,

unreasonable, or unconscionable. Ojalvo, 12 Ohio St.3d 230, 232, 466 N.E.2d 875. When
 -30-

applying the abuse of discretion standard, an appellate court may not substitute its

judgment for that of the trial court. Pons, 66 Ohio St.3d 619, 621, 614 N.E.2d 748.

{¶ 96} In this case, the trial court gave a detailed explanation as to why it found

Martcheva’s motion to be not substantially justified and how and why it came up with the

award amount. See May 10, 2021 Decision and Entry at 4-18. We find the court’s decision

to be reasonable. The sixth assignment of error, therefore, is overruled.

IX. Conclusion

{¶ 97} The trial court’s judgments will be affirmed.

.............

TUCKER, P. J. and HALL, J., concur.

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Peter K. Newman
David J. Lampe
Jason R. Stuckey
Aaron Rothey
Hon. Mary E. Montgomery