[Cite as Aubrey-Dean v. CareSource,
2024-Ohio-3209.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
LATONIA AUBREY-DEAN :
:
Appellant : C.A. No. 30078
:
v. : Trial Court Case No. 2023 CV 6436
:
CARESOURCE : (Civil Appeal from Common Pleas
: Court)
Appellee :
:
...........
OPINION
Rendered on August 23, 2024
...........
MICHAEL W. DeWITT, Attorney for Appellant
ERIN E. RHINEHART & MORGAN K. NAPIER, Attorneys for Appellee
.............
TUCKER, J.
{¶ 1} Plaintiff-appellant Latonya Aubrey-Dean 1 appeals from a judgment of the
Montgomery County Court of Common Pleas, which entered summary judgment against
1
The record is inconsistent as to the spelling of Aubrey-Dean’s first name. We use the
spelling used on the complaint and appellant’s brief.
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her on claims of racial discrimination, creating a hostile workplace, and retaliation. For
the reasons set forth below, we affirm.
I. Facts and Procedural History
{¶ 2} CareSource Management Services, L.L.C. (“CareSource”) hired Aubrey-
Dean in 2015 and terminated her employment in February 2022. At all relevant times,
she worked as a claims analyst in the mass claims adjustments division (“MCA”).
{¶ 3} On December 1, 2023, Aubrey-Dean filed a complaint against CareSource
alleging racial discrimination, hostile work environment, and retaliation under R.C.
Chapter 4112. CareSource filed a motion for summary judgment, and Aubrey-Dean filed
a response in opposition. The trial court entered summary judgment on behalf of
CareSource. Aubrey-Dean appeals.
II. Summary Judgment Standard
{¶ 4} Civ.R. 56(C) provides that summary judgment may be granted when the
moving party demonstrates that (1) there are no genuine issues of material fact, (2) the
moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most
strongly in favor of the nonmoving party, reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party against whom the motion for
summary judgment is made. Taylor v. Meijer, Inc., 2009-Ohio-1966, ¶ 11 (2d Dist.).
{¶ 5} In Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996), the Ohio Supreme Court
stated:
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[A] party seeking summary judgment, on the ground that the nonmoving party
cannot prove its case, bears the initial burden of informing the trial court of the
basis for the motion, and identifying those portions of the record that demonstrate
the absence of a genuine issue of material fact on the essential element(s) of the
nonmoving party's claims. The moving party cannot discharge its initial burden
under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party
has no evidence to prove its case. Rather, the moving party must be able to
specifically point to some evidence of the type listed in Civ.R. 56(C) which
affirmatively demonstrates that the nonmoving party has no evidence to support
the nonmoving party's claims. If the moving party fails to satisfy its initial burden,
the motion for summary judgment must be denied. However, if the moving party
has satisfied its initial burden, the nonmoving party then has a reciprocal burden
outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine
issue for trial and, if the nonmovant does not so respond, summary judgment, if
appropriate, shall be entered against the nonmoving party.
Id. at 293.
{¶ 6} We conduct a de novo review when analyzing a trial court’s decision to enter
summary judgment. Lafon v. Iron Tiger Logistics, 2015-Ohio-2428, ¶ 8 (2d Dist.). “De
novo review means that this court uses the same standard that the trial court should have
used, and we examine all the Civ.R. 56 evidence, without deference to the trial court, to
determine whether, as a matter of law, no genuine issues exist for trial.” McAlpine v.
McCloud,
2021-Ohio-2430, ¶ 13 (2d Dist.), citing Ward v. Bond,
2015-Ohio-4297, ¶ 8 (2d
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Dist.).
III. Race Discrimination
{¶ 7} Aubrey-Dean’s first assignment of error states:
THE COMMON PLEAS COURT COMMITTED REVERSIBLE
ERROR WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF
CARESOURCE ON MS. AUBREY-DEAN’S RACE DISCRIMINATION
CLAIM UNDER R.C. 4112.
{¶ 8} Aubrey-Dean challenges the trial court’s decision to render summary
judgment on her claims for racial discrimination and creating a hostile work environment.
{¶ 9} Under Ohio law, it is “an unlawful discriminatory practice” “[f]or any employer,
because of the race, color, religion, sex, military status, national origin, disability, age, or
ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to
discriminate against that person with respect to hire, tenure, terms, conditions, or
privileges of employment, or any matter directly or indirectly related to employment.”
R.C. 4112.02(A). There are two types of race discrimination claims available under R.C.
4112.02. The first type “requires proof that an employee suffered a specific ‘adverse
employment action’ on the basis of race.” (Citations omitted.) Grooms v. Supporting
Council of Preventative Effort, 2004-Ohio-2034, ¶ 15 (2d Dist.). The second type
“requires proof that severe and pervasive harassment on the basis of race altered the
conditions of employment by creating a ‘hostile work environment.’ ”
Id. Aubrey-Dean
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alleges she suffered both types of discrimination.
{¶ 10} We begin with the adverse employment action portion of Aubrey-Dean’s
claim. “A plaintiff may establish a claim of discrimination either by introducing direct
evidence of discrimination or by proving circumstantial evidence that would support an
inference of discrimination.” Rice v. Cuyahoga Cty. Dept. of Justice, 2005-Ohio-5337,
¶ 41 (8th Dist.). Aubrey-Dean does not assert, and we cannot ascertain, any direct
evidence of discriminatory intent. She does not claim that any supervisor, manager, or
other employee of CareSource made any racist comments or engaged in any other overt
racist conduct. Further, she has not presented and does not claim the existence of any
documents from which racial animus may be directly discerned or even inferred.
{¶ 11} Absent direct evidence of an employer’s discriminatory intent, a plaintiff may
establish discriminatory intent using the burden-shifting analytical framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 Williams v. Akron, 2005-
Ohio-6268, ¶ 9. The parties in this case do not dispute the application of and have
proceeded under the McDonnell Douglas analytical framework.
{¶ 12} To create an inference of discriminatory intent under the McDonnell
Douglas scheme, a plaintiff has the initial burden to establish a prima facie case of
discrimination. McDonnell Douglas at 802; Moody v. Ohio Dept. of Mental Health &
Addiction Servs., 2021-Ohio-4578, ¶ 17 (10th Dist.). This requires an employee to show
2
Ohio courts may apply “federal case law interpreting Title VII of the Civil Rights Act of
1964 . . . to cases involving alleged violations of R.C. Chapter 4112.” Plumbers &
Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm.,
66 Ohio St.2d 192,
196 (1981).
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that (1) she is a member of a protected class, (2) she was qualified for the position at
issue, (3) she was terminated, and (4) she was replaced by someone outside the
protected class. James v. Bob Ross Buick, Inc., 2006-Ohio-2638, ¶ 32 (2d Dist.), citing
Smith v. Goodwill Indus. of Miami Valley, Inc.,
130 Ohio App.3d 437, 441-442, (2d Dist.
1998). “Alternatively, the fourth element may be satisfied with evidence that a
comparable nonprotected person was treated more favorably.”
Id., citing
Smith at 443.
{¶ 13} Aubrey-Dean argues that summary judgment was inappropriate because
she had presented evidence sufficient to establish a prima facie case of discrimination.
Indeed, the record demonstrates that Aubrey-Dean, as an African American, was a
member of a protected class, that she was qualified for her position, and that she was
subject to disciplinary actions including termination of her employment. However,
Aubrey-Dean does not claim, and there is no evidence to demonstrate, that she was
replaced by someone outside her protected class. Thus, she relies upon the argument
that other similarly situated individuals who were not members of the protected class were
treated more favorably.
{¶ 14} “Where a plaintiff in a discrimination claim contends his or her employer
provided more favorable treatment to a non-protected similarly situated person, ‘the
individual with whom the plaintiff seeks to compare [his or] her treatment must be similar
in all relevant respects.’ ” Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-4783, ¶ 23
(10th Dist.), quoting Kenner v. Grant/Riverside Med. Care Found.,
2017-Ohio-1349, ¶ 33
(10th Dist.), citing Ames v. Ohio Dept. of Rehab. & Corr.,
2014-Ohio-4774, ¶ 42 (10th
Dist.). Employees is “similarly situated” when they “have dealt with the same supervisor,
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have been subject to the same standards and have engaged in the same conduct without
such differentiating or mitigating circumstances that would distinguish their conduct or the
employer's treatment of them for it.” (Citations omitted.) Chisholm v. Cleveland Clinic
Found., 2019-Ohio-3369, ¶ 22 (8th Dist.); Green v CGI Technologies and Solutions, 911
F.Supp 2d 513 (N.D. Ohio 2012).
{¶ 15} On this record, there was no dispute that CareSource employees, including
Aubrey-Dean, were bound by a written management policy that set forth rules for monthly
quality and production, attendance, and workplace behavior. The policy set forth a non-
exclusive list of actions that could result in termination of employment. Of relevance
here, the list included “insubordination, refusal, or failure to perform assigned work, task
or refusal to follow reasonable directives from a leader, manager or Company worker,”
and failure to correct unsatisfactory work performance. Further, there was no dispute
that CareSource utilized a progressive discipline scheme consisting of four “steps” which
were identified as coaching, written warning, final written warning, and termination.
{¶ 16} The first adverse disciplinary action taken against Aubrey-Dean occurred in
January 2021. At that time, Aubrey-Dean’s manager, Jamie Jamison, assigned her to
train a new employee. The record discloses that, on January 7, 2021, Jamison sent an
email to Aubrey-Dean detailing the expectation that she would conduct the training for
two to three hours per day for three weeks.3 The email further specified that, for the
following two weeks, the trainee would be given claims to process and Aubrey-Dean
would oversee the trainee’s work. The email also stated, “we can update/change the
3
It is undisputed that this training merely required Aubrey-Dean to remotely share her
computer screen with the trainee and to answer any questions the trainee might have.
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plan as needed.”
{¶ 17} On January 11, 2021, Aubrey-Dean sent an email to Jamison indicating that
she would conduct two-hour training sessions with the new employee on Mondays and
Thursdays over a three-week timespan. Later that day, Jamison sent Aubrey-Dean an
email reiterating that training was to take place every day and that she should follow the
original schedule set forth in the prior email. A few minutes later, Aubrey-Dean
responded that the Monday/Thursday schedule was more convenient for her. Later that
day, Jamison sent Aubrey-Dean another email in which he stated that he had reviewed
her calendar, which showed that she had time to do the required training. He stated that
Aubrey-Dean was free to allocate the training time throughout the workday as she
wanted, but that she should conduct two to three hours of training per day.
{¶ 18} On January 13, 2021, Jamison learned that the training had not occurred
that day or the previous day. He sent an email to Aubrey-Dean outlining the content of
his prior emails and asking her whether she would comply with the training schedule as
specified in his emails. The next day, Aubrey-Dean replied by email indicating that her
proposed schedule worked better with her schedule. She noted that Jamison’s prior
email had stated that the original training plan could be updated or changed as needed.
She then stated that her proposed schedule was “a reasonable amount of training time”
which would permit her to meet her other obligations, including breaks and lunchtime.
Finally, she stated that she was happy to conduct the training but added that Jamison
had the discretion to choose another analyst to do so. A few moments later, Jamison
emailed Aubrey-Dean and referred her to his prior email in which he had noted times in
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Aubrey-Dean’s calendar that would permit the required amount of training. Shortly
thereafter, Aubrey-Dean sent an email to Jamison stating:
If you would like for [the trainee] to be trained by another person, that is up
to your discretion. I am more than happy to train [her] on the MCA process.
By having the training time schedule for Mondays and Thursdays from
10:00 to 12noon, this time will allow a reasonable amount of training time
and allow me to prepare for my scheduled weekly meetings and complete
other duties assigned to me as well as allow time for breaks and lunchtime.
I am also working diligently to make sure that I am meeting the MCA SLA
goals. Have a great day.
{¶ 19} Jamison then sent an email asking Aubrey-Dean if she was refusing to train
the new employee for two hours daily. Aubrey-Dean replied with an email that was
virtually identical to that set forth above. Jamison sent another email asking Aubrey-
Dean to answer “yes or no” to whether she would train the new employee for the required
two hours per day. Again, Aubrey-Dean responded with the same email. Jamison then
sent her another email in which he stated that he would “take [her] answer as a no then.”
Aubrey-Dean then sent the same email to Jamison for a fourth time. Jamison ultimately
referred the trainee to another MCA analyst to complete her training and referred Aubrey-
Dean to a CareSource employee relations manager for discipline.
{¶ 20} On February 16, 2021, Aubrey-Dean was notified that she was “being
moved into Phase 1 – Coaching for Performance Management” regarding the issues with
the training, referring to the first step of the discipline process. Specifically, it was noted
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that she had engaged in inappropriate communication with leadership and that she had
failed to follow work instructions from leadership. The notice informed her that she would
have to undergo coaching in communication.
{¶ 21} In her deposition, Aubrey-Dean admitted that training new employees was
a known job requirement. However, in her affidavit in response to CareSource’s motion
for summary judgment, Aubrey-Dean averred that the training schedule set by Jamison
was “not practical.” She further stated that she had informed Jamison as to the
alterations to the training plan, which she noted were more compatible with her schedule.
She stated that she had, in fact, conducted the training and provided all the training
necessary for the trainee “to become a successful analyst.” Aubrey-Dean averred that
Jamison had ignored her concerns about the training schedule and that his emails to her
had been “argumentative and demeaning.” She further averred that she was
inappropriately penalized and required to undergo coaching. Finally, she asserted that
she was “not aware of another employee who had been required to attend behavioral
classes for addressing a concern.”
{¶ 22} The record demonstrates that Aubrey-Dean was initially told to conduct
training for a minimum of two hours daily for three weeks, to be followed by two weeks of
observing the trainee’s work. While the original email from Jamison did state that the
schedule could be updated or changed as needed, it did not permit Aubrey-Dean to make
a unilateral change to the amount of training time.4 However, Aubrey-Dean informed
4
For example, Jamison’s later email indicated that Aubrey-Dean could schedule the
training for different times during the day if needed, rather than conducting it all in one
continuous timespan. However, all of Jamison’s emails informed Aubrey-Dean that she
was required to conduct a minimum of two hours training per day for three weeks.
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Jamison that she intended to conduct significantly less training. Further, although
Aubrey-Dean claimed she had properly trained the new employee, the record
demonstrates that Jamison had to assign a second MCA team member to complete the
employee’s training.
{¶ 23} Most importantly, the record is devoid of any evidence that any other
employee to whom Aubrey-Dean compared herself was alleged to have engaged in the
same conduct. Aubrey-Dean presented no evidence that any other member of the MCA
team had ever refused to conduct a certain amount of training for new employees.
Further, she has not claimed or provided any evidence that the amount of training time
required by Jamison was more than that normally prescribed for training new employees
of the MCA team. Finally, although she claims that she was “not aware” of any other
MCA team members being subjected to coaching as a disciplinary action, the record
clearly demonstrates that other team members had been subject to the step one discipline
of coaching as their first disciplinary action for infractions of company policies. In short,
Aubrey-Dean failed to even allege, let alone establish a genuine issue, that a similarly-
situated non-protected individual engaged in the same conduct and received more
favorable treatment.
{¶ 24} The next disciplinary action occurred after Aubrey-Dean failed to timely
complete mandatory compliance training. Specifically, on July 12, 2021, CareSource
management sent an email to all employees regarding mandatory compliance training.
The email stated that the training, which consisted of online sessions, was to be
completed by October 2021. However, that same day, management for the MCA team
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sent an email requiring MCA team members to complete the training by July 31, 2021.
The MCA team was sent three email reminders about the training and completion date
and was given reminders twice a week during team meetings. Finally, the team was
given a reminder by instant messaging on July 30, 2021.
{¶ 25} Aubrey-Dean attached the transcript of her training to her response to the
motion for summary judgment. The transcript showed that the training consisted of
approximately two hours of online sessions, that Aubrey-Dean began two of the training
sessions on July 12, 2021, that she began the remaining sessions on July 30, 2021, and
that she did not complete the training until August 3, 2021. On August 5, 2021,
CareSource issued a written warning disciplinary notice to Aubrey-Dean, citing her failure
to timely complete the training.
{¶ 26} In her affidavit, Aubrey-Dean stated that she normally takes a one-week
vacation in July and that, when she returned to work, she had a large backlog of work to
complete. She also averred that in past years, she and other MCA team members had
been “permitted to simply complete the training after the deadline.” She did not deny
that she did not complete the training by July 31.
{¶ 27} Aubrey-Dean did not present any evidence that any similarly-situated non-
protected MCA team members were permitted to complete the training after the July 31
completion date or that any other employees who failed to meet the deadline were treated
more favorably. Indeed, the record shows that seven MCA team members did not timely
complete the training. Of those seven, four were given step one coaching as their
disciplinary action, and the other three, Aubrey-Dean and two white employees, were
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giving written warnings because they were further along in the disciplinary step process.
Based on this evidence, Aubrey-Dean failed to make a prima facie case of discrimination
by disparate treatment.
{¶ 28} On September 2, 2021, Jamison met with Aubrey-Dean to discuss
performance issues. Aubrey-Dean was informed of the need to timely respond to emails
and questions from leadership and that she was required to follow directions from
leadership. The following day, Ryan Shafer, the Senior Director of the Claims
Department at CareSource, and Aubrey-Dean had a director approval meeting during
which Shafer requested information regarding the “lag time” to get an assignment to
committee for approval. According to Shafer’s affidavit, Aubrey-Dean did not respond to
his request. Then, on September 9, Shafer directed a question about a specific
assignment to Aubrey-Dean. Even though the assignment was an MCA research issue,
Aubrey-Dean directed the issue to a different department for completion. On September
14, 2021, CareSource issued a final written warning to Aubrey-Dean for unsatisfactory
performance regarding her failure to respond to Shafer and directing MCA work to an
outside team.
{¶ 29} In her affidavit in opposition to summary judgment, Aubrey-Dean averred
that the warning had been issued even though she had addressed all of the “purported
issues” raised by management regarding her conduct and despite “the fact that [her]
performance during [her] time at CareSource was amongst the highest quality of anyone
in [her] position.” Notably, Aubrey-Dean provided no evidence to rebut the evidence
presented by CareSource that the performance issues referenced in the final written
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warning had occurred. She also did not offer evidence that any of her peers had had the
same or similar performance issues or that, if they had, they were treated more favorably.
Thus, Aubrey-Dean failed to present a prima facie case of discrimination as to the final
written warning.
{¶ 30} The final disciplinary action, termination of employment, occurred in
February 2022 and involved the processing of three “tickets.” The record demonstrates
that a ticket is a claims assignment given to a member of the MCA division for review to
determine why the claims were denied or whether they were paid properly. Because
each ticket involved a large numbers of claims, CareSource’s written policy provided for
disciplinary action if an MCA member had more than one inaccurate ticket per month.
{¶ 31} CareSource presented evidence that Aubrey-Dean processed two zero-pay
“tickets,” consisting of over 25,000 claims, without approval. The record shows that
CareSource’s policy provides that zero-pay tickets are rarely processed by MCA team
members, and then only with prior approval from management. That same month,
Aubrey-Dean failed to conduct a required test to ensure the accuracy of a third ticket,
which resulted in numerous claims being denied as out of network when they should have
been processed as in network. Because Aubrey-Dean processed three inaccurate
tickets during a one-month timeframe, she was subject to the final disciplinary step of
termination.
{¶ 32} Aubrey-Dean offered no evidence to rebut CareSource’s evidence that she
had processed three inaccurate tickets during a one-month period, and she does not
claim that she was unaware of CareSource’s policies regarding the processing of tickets
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and the penalty for incorrect processing. Furthermore, the unrebutted evidence in the
record shows that other members of the MCA team were given various levels of discipline,
with each employee’s specific discipline matched to that employee’s position in the
progressive disciplinary scheme, when they exceeded one inaccurate ticket processing
in a month, including a white employee who was terminated for ticket inaccuracy.
{¶ 33} Based on our review of the record, Aubrey-Dean failed to present any
competent evidence to meet her burden under Civ.R. 56 to demonstrate there was a
genuine issue of material fact related to her discrimination claim for disparate treatment.
Thus, the trial court properly entered summary judgment against her for failure to
establish a prima facie case of racial discrimination.
{¶ 34} Aubrey-Dean next argues that the trial court erred in rendering summary
judgment in favor of CareSource because the evidence demonstrated that her co-workers
and supervisors created a hostile work environment.
{¶ 35} To prevail on a claim for hostile work environment created by racial
harassment, a plaintiff must demonstrate: (1) the employee is a member of a protected
class, (2) the employee was subjected to unwelcome harassment, (3) the harassment
was based on race, (4) the harassment had the effect or purpose of unreasonably
interfering with the employee's work performance or of creating an intimidating, hostile,
or offensive work environment, and (5) employer liability through respondeat superior.
Bell v. Cuyahoga Community College, 129 Ohio App.3d 461, 466-467 (8th Dist. 1998);
Hinton v. Ohio Dept. of Youth Servs.,
2022-Ohio-4783, ¶ 33 (10th Dist.).
{¶ 36} Aubrey-Dean lists a number of events that she claims created a hostile work
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environment. The first, which occurred in April 2020, involved a manager’s request that
Aubrey-Dean and another co-worker to prepare and present an MCA team training. The
manager later communicated that the manager and the co-worker had spoken and the
co-worker had stated that she was “going to put something together and present to the
team.” The manager indicated that the co-worker was going to “send a presentation over
once she has something pulled together.” The manager further indicated that Aubrey-
Dean could add to the presentation if she so desired. According to Aubrey-Dean, the
co-worker “excluded her from collaboration efforts and did not allow [her] to add any input
on the MCA PowerPoint Presentation.”
{¶ 37} Aubrey-Dean next complains that, in May 2020, Shafer sent her emails that
were “condescending,” “antagonizing,” “ridiculing,” and “demeaning.” The series of
emails between Shafer and Aubrey-Dean appeared to involve a ticket that was processed
incorrectly. After Shafer inquired about the ticket, Aubrey-Dean sent him an email in
which she stated that the issue was not the fault of the MCA team. Shafer then sent her
a reply email in which he stated, “Latonya, you are missing the point. This team is
absolutely responsible for the claims that run through MCA and ensuring they pay
correctly.”
{¶ 38} Aubrey-Dean also claims that Jamison “threatened her with jail time” and
legal action after she forwarded company emails to her personal email. There is no
documentary evidence in the record regarding the emails. However, Aubrey-Dean
averred in her affidavit that she transferred the emails to her personal account “simply to
keep a record of my complaints and supporting documentations regarding those
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complaints.”
{¶ 39} Aubrey-Dean also complains that she was omitted from email lists and
excluded from certain meetings, that Jamison was “aggressive and unreasonable”
regarding the above-referenced training of the new employee, and that Shafer and
Jamison “continued to harass [her] and continuously criticized [her] analysis for [her] work
assignments.”
{¶ 40} We will begin our analysis with the third prong of the test, that the
harassment must be based upon race. Other than her broad and conclusory averments
in her affidavit that she was subjected to racial discrimination, Aubrey-Dean presented no
evidence to support this claim. She did not claim that any of her co-workers or superiors
uttered racial slurs or otherwise directly behaved in a racially derogatory manner. There
was no evidence that she was subjected to overt racial comments or behavior. There
was no evidence that she overheard anyone making racial comments. The only
evidence regarding a hostile work environment consisted of her averments that she had
conflicts with a co-worker and members of management. However, there was simply no
evidence that any of these conflicts were based on race. “R.C. 4112.02(A) does not
reach disparate treatment on account of personal animosity; no matter how severe or
pervasive the conduct, harassment does not constitute a discriminatory practice under
R.C. 4112.02(A) unless based on a prohibited classification.” Rice, 2005-Ohio-5337, at
¶ 36, quoting Hampel v. Food Ingredients Specialties, Inc.,
89 Ohio St.3d 169, 176-77
(2000).
{¶ 41} We next address the fourth requirement. In order to determine whether a
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work environment was sufficiently hostile to satisfy the fourth prong of this test, the court
looks at all of the circumstances, including: (1) the frequency of the discriminatory
conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether it unreasonably interferes with an employee's work
performance. Faragher v. Boca Raton, 524 U.S. 775, 787-788 (1998); Harmon v. GZK,
2002-Ohio-545, * 6 (2d Dist.).
{¶ 42} Aubrey-Dean did not offer any evidence that any of the claimed conduct
unreasonably interfered with her work performance. She did not claim that she had been
contemplating separating from her employment or that she had been discouraged from
remaining on the job. She did not claim she had been denied advances in her career,
and she did not claim that the conduct impaired or detracted from her work performance.
Indeed, she averred that her “performance during [her] time at CareSource was amongst
the highest quality of anyone in [her] position.”
{¶ 43} Based upon the record before us, we cannot say that the trial court erred in
granting summary judgment on Aubrey-Dean’s claim that her employer created a hostile
work environment.
{¶ 44} The first assignment of error is overruled.
IV. Retaliation
{¶ 45} Aubrey-Dean’s second assignment of error asserts:
THE COMMON PLEAS COURT COMMITTED REVERSIBLE
ERROR WHEN IT GRANTED SUMMARY JUDGMENT IN FAVOR OF
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CARESOURCE ON MS. AUBREY-DEAN’S RETALIATION CLAIM UNDER
R.C. 4112.
{¶ 46} Aubrey-Dean contends that she presented evidence that created genuine
issues of fact regarding her claim for retaliation. Thus, she argues that the trial court
erred by entering summary judgment against her on this claim.
{¶ 47} The Ohio Civil Rights Act “forbid[s] retaliation by employers against
employees who report workplace discrimination.” Meyers v. Goodrich Corp., 2011-Ohio-
3261, ¶ 10 (8th Dist.). Specifically, R.C. 4112.02(I) states that “it is an unlawful business
practice to discriminate against a person because that person has opposed any unlawful
discriminatory practice defined in this section or because that person has made a charge,
testified, assisted, or participated in any manner in any investigation, proceeding, or
hearing under sections 4112.01 to 4112.07 of the Revised Code.”
{¶ 48} “A plaintiff may prove a retaliation claim through either direct or
circumstantial evidence.” Diller v. Miami Valley Hosp., 2017-Ohio-9051, ¶ 46 (2d Dist.),
citing Imwalle v. Reliance Med. Prods., Inc.,
515 F.3d 531, 543 (6th Cir. 2008), and
Nebozuk v. Abercrombie & Fitch Co.,
2014-Ohio-1600, ¶ 39 (10th Dist.). Again, Aubrey-
Dean did not set forth any direct evidence of retaliation. Thus, she may “establish
retaliation through circumstantial evidence using the burden-shifting framework set forth
in McDonnell Douglas.”
Id. Under this framework, Aubrey-Dean “bears the initial
burden of establishing a prima facie case of retaliation.”
Id. To establish a prima facie
case of retaliation under R.C. 4112.02(I), an employee must establish the following: (1)
she engaged in a protected activity; (2) her employer was aware of her participation in
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protected activity; (3) she suffered an adverse employment action; and (4) a causal link
existed between the protected activity and the adverse action. Greer-Burger v. Temesi,
2007-Ohio-6442, ¶ 13.
{¶ 49} The record shows that in August 2020, Aubrey-Dean filed a complaint with
CareSource’s human resources department alleging that she was being subjected to
racial discrimination. That same month, Aubrey-Dean made a complaint to human
resources claiming that she had been subjected to retaliation following her first complaint.
The two complaints were investigated but no finding of discrimination or retaliation was
made. As outlined above, Aubrey-Dean was subjected to her first disciplinary action in
February 2021. In March 2021, she filed a complaint with the EEOC alleging racial
discrimination, hostile work environment, and retaliation. 5 The second and third
disciplinary actions took place in August and September 2021, respectively. The final
disciplinary action, termination of employment, occurred in February 2022.
{¶ 50} Thus, the record demonstrates that Aubrey-Dean engaged in a protected
activity of lodging complaints about discrimination and that CareSource was aware of the
protected activity, and there is no question that Aubrey-Dean suffered adverse
employment actions following the protected activity. The only remaining question in this
case is whether there was a genuine issue of material fact that a causal link existed
between the protected activity and the adverse action.
{¶ 51} To demonstrate a causal connection between an adverse employment
action and the exercise of protected rights, the evidence must show that the employee’s
5
The record shows that the EEOC complaints were dismissed upon a finding of no
reasonable cause to conclude that CareSource discriminated against Aubrey-Dean.
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engagement in protected activity was a determinative factor, rather than just a motivating
factor, in the employer’s decision to take an adverse employment action. Diller, 2017-
Ohio-9051, at ¶ 46; Little York Tavern v. Lane, 2017-Ohio-850, ¶ 16 (2d Dist.). Thus, “a
plaintiff must produce evidence which permits the inference that apart from the protected
activity, the adverse action would not have been taken.” Nguyen v. Cleveland,
229 F.3d
559, 563 (6th Cir. 2000). This determination is made with reference to the surrounding
circumstances, including “evidence that defendant treated the plaintiff differently from
similarly situated employees or that the adverse action was taken shortly after the
plaintiff's exercise of protected rights[.]”
Id.
{¶ 52} Aubrey-Dean first argues that the “timeline [of protected activity followed by
disciplinary action] is evidence that the adverse action was in retaliation for the protected
activity.” She next argues that her affidavit and “other exhibits” attached to her response
to the motion for summary judgment provided sufficient evidence to survive summary
judgment.
{¶ 53} Generally, “the mere fact that an adverse employment action occurs
subsequent to the protected activity does not alone support an inference of retaliation.”
Pflanz v. Cincinnati, 2002-Ohio-5492, ¶ 64 (1st Dist.), citing Cooper v. N. Olmsted.
795
F.2d 1265, 1272 (6th Cir. 1986); accord Nguyen v. Cleveland,
229 F.3d 559, 566 (6th Cir.
2000) (“temporal proximity alone will not support an inference of retaliatory discrimination
when there is no other compelling evidence”). Indeed, for temporal proximity alone to
support a finding of retaliation, courts have stated that the adverse employment action
must occur “very close in time after an employer learns of the protected activity.” This
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court has found that a time lapse of three months between the protected activity and the
adverse employment action is too long a period of time to permit temporal proximity alone
to be sufficient evidence of retaliation. Hammonds v. Beavercreek City Schools, 2021-
Ohio-4022, ¶ 25 (2d Dist.); accord Woods v. Capital Univ., 2009-Ohio-5672, ¶ 50 (10th
Dist.) (where approximately two months had elapsed between the employer’s learning
that the employee had engaged in a protected activity and the adverse action, the
temporal proximity was not so close that the employee could rely upon timing alone to
establish a causal connection).
{¶ 54} Here, there was a lapse of over five months between Aubrey-Dean’s
complaints to human resources and the issuance of her first disciplinary action. She
then filed her EEOC complaint. Her second disciplinary action occurred five months
thereafter. Importantly, CareSource did not terminate Aubrey-Dean’s employment for
more than a year after the filing of the EEOC complaint. Thus, we conclude that Aubrey-
Dean could rely solely on her claim of temporal proximity to prove retaliation.
{¶ 55} A review of the record shows Aubrey-Dean did not present any other
competent evidence to support a claim of retaliation. She did not present any evidence
to show that the stated reasons for the disciplinary actions had no basis in fact or were
false. Although she claimed she adequately trained the new employee, she did not deny
that she did not comply with Jamison’s direction that she conduct two hours of training
per day. She further did not dispute that she had failed to complete her compliance
training by the deadline set by the MCA management team. Aubrey-Dean claimed that
she addressed the issues related to the third disciplinary action, but she did not deny that
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she had engaged in the actions giving rise to that discipline. Finally, she did not deny
that she had exceeded the allowance for incorrect ticket processing.
{¶ 56} Further, the only averments set forth in her affidavit regarding retaliation
stated: “I believed at the time, and still believe” that the adverse employment actions
constituted retaliation. Affidavits are among the evidentiary materials that may be used
to support or contest a motion for summary judgment. But to qualify as an affidavit,
certain requirements must be met. “Supporting and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be admissible in evidence,
and shall show affirmatively that the affiant is competent to testify to the matters stated in
the affidavit.” Civ.R. 56(E). Aubrey-Dean’s statement that she believes there was a
relationship between the protected activity and the disciplinary action did not constitute
personal knowledge. Instead, her averment was merely a speculative, conclusory
assertion unsupported by the record and was insufficient to create a genuine issue of
material fact for trial.
{¶ 57} The temporal proximity was not so close that Aubrey-Dean could rely upon
timing alone to establish a causal connection. Further, she did not point to any other
evidence that would allow a reasonable finder of fact to infer that engaging in the alleged
protected activity caused the adverse action. Consequently, she failed to create a
genuine issue of material fact as to the fourth element of the prima facie case of
retaliation.
{¶ 58} Accordingly, the second assignment of error is overruled.
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V. Conclusion
{¶ 59} The judgment of the trial court is affirmed.
.............
WELBAUM, J. and HUFFMAN, J., concur.
