[Cite as Horsley v. Burton,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

DONALD HORSLEY, : : Plaintiff-Appellant, : Case No: 10CA3356 : v. : : DECISION AND JENNIFER M. BURTON, et al., : JUDGMENT ENTRY : Defendants-Appellees. : File-stamped date: 12-10-10

APPEARANCES:

James H. Banks, Dublin, Ohio, for Appellant.

Jacklyn J. Ford and Peter A. Lusenhop, Vorys, Sater, Seymour and Pease, LLP, Columbus, Ohio, for Appellees.

Kline, J.:

{¶1} Donald Horsley (hereinafter “Horsley”) appeals the judgment of the Scioto

County Court of Common Pleas, which granted summary judgment in favor of Jennifer

M. Burton (n/k/a Jennifer Meade, and hereinafter “Meade”) and Scioto Residential

Services, Inc., (hereinafter “Scioto Residential”). (When discussing the defendants-

appellees collectively, we will refer to them as “Scioto Residential.”). At the trial court

level, Horsley alleged that Scioto Residential engaged in several impermissible

employment practices. And on appeal, he contends that the trial court erred in granting

summary judgment for Scioto Residential on Horsley’s age discrimination, gender

discrimination, and whistleblower claims. We disagree. Instead, we find (1) that there

are no genuine issues of material fact as to any of Horsley’s claims; (2) that Scioto Scioto App. No. 10CA3356 2

Residential is entitled to judgment as a matter of law on all of Horsley’s claims; and (3)

that reasonable minds can come to just one conclusion as to all of Horsley’s claims, and

that conclusion is adverse to Horsley. Accordingly, we affirm the judgment of the trial

court.

I.

{¶2} Scioto Residential maintains fourteen homes that provide residential care for

individuals with severe developmental disabilities, and Meade is Scioto Residential’s

Executive Director. On September 22, 2006, Scioto Residential hired Horsley as a part-

time support professional. In that position, Horsley assisted Scioto Residential’s

residents with their daily needs. When he started at Scioto Residential, Horsley was

sixty-five years old, earned $7.25 per hour, and worked between twenty-five-to-thirty

hours per week. Additionally, for the first nine months of his employment, Horsley

worked mainly at Scioto Residential’s Robinson home (hereinafter “Robinson”).

{¶3} On June 29, 2007, one of Horsley’s co-workers apparently informed Scioto

Residential that Horsley had been copying patient records. And on July 6, 2007, a

supervisor at Scioto Residential met with Horsley to discuss the alleged copying

incident. The supervisor informed Horsley that copying patient records was forbidden,

but Horsley denied the copying allegations.

{¶4} In July 2007, Scioto Residential transferred Horsley to the Eleventh Street

home (hereinafter “Eleventh Street”). Horsley’s position, duties, and rate of pay did not

change at Eleventh Street, and, after the transfer, he worked the same amount of hours

per week. Scioto App. No. 10CA3356 3

{¶5} Sometime later, Scioto Residential transferred Horsley from Eleventh Street

to the McDermott home (hereinafter “McDermott”). Horsley’s position, duties, and rate

of pay did not change at McDermott, but, after this transfer, he apparently worked fewer

hours per week.

{¶6} In August 2007, Scioto Residential had two openings for the Support

Manager position. Horsley applied for these openings, but Scioto Residential gave the

promotions to a younger female, Amie Wolfe (hereinafter “Wolfe”), and a younger male,

Nick Conley (hereinafter “Conley”). Scioto Residential claimed that Wolfe and Conley

were better qualified for the Support Manager position.

{¶7} In or around August 2007, Horsley started making complaints about Scioto

Residential to various state officials. The Ohio Department of Mental Retardation and

Developmental Disabilities investigated these complaints, and, apparently, “[l]icensure

violations were found during some visits that resulted in the issuance of deficiencies.”

October 29, 2007 Letter to Donald Horsley.

{¶8} In September 2007, two Scioto Residential employees saw Horsley copying

patient records. Robert Luongo (hereinafter “Luongo”) claims that he “personally

witnessed Don Horsley copying resident medical records and removing those records

from the McDermott home.” Affidavit of Robert Luongo at ¶3. And Candace Hackworth

(hereinafter “Hackworth”) claims that, on September 15, 2007, she “personally

witnessed Don Horsley copying resident medical records. * * * On September 16, 2007,

[she] asked Mr. Horsley what he did with the copies of the records which he copied, and

he told [Hackworth] that he took them home.” Affidavit of Candace Hackworth at ¶3-4. Scioto App. No. 10CA3356 4

{¶9} On September 20, 2007, Scioto Residential supervisors met with Horsley to

discuss the copying and removal of patient records. Horsley denied the allegations, but

Scioto Residential suspended him pending an investigation into the matter. Then, on

February 14, 2008, Scioto Residential informed Horsley that he was being terminated

for the September 2007 copying-and-removal incident.

{¶10} On March 5, 2008, Horsley filed his complaint in the present case. Horsley

alleged that Scioto Residential (1) engaged in age discrimination, (2) engaged in gender

discrimination, and (3) retaliated against Horsley for reporting violations to the state.

Eventually, the trial court granted Scioto Residential’s motion for summary judgment as

to all of Horsley’s claims.

{¶11} Horsley appeals and asserts the following assignment of error: “THE TRIAL

COURT ERRED IN GRANTING SUMMARY JUDGMENT AND DISMISSING ALL OF

PLAINTIFF-APPELLANT’S CLAIMS, SUCH THAT THE JUDGMENT MUST BE

REVERSED.”

II.

{¶12} In his sole assignment of error, Horsley contends that the trial court erred in

granting summary judgment to Scioto Residential on all of his employment-related

claims. “Because this case was decided upon summary judgment, we review this

matter de novo, governed by the standard set forth in Civ.R. 56.” Comer v. Risko,

,

, at ¶8. Summary judgment is appropriate only when

the following have been established: (1) there is no genuine issue as to any material

fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable

minds can come to only one conclusion, and that conclusion is adverse to the Scioto App. No. 10CA3356 5

nonmoving party. Civ.R. 56(C). See, also, Bostic v. Connor (1988),

; Grimes v. Grimes, Washington App. No. 08CA35,

, at ¶14. In

ruling on a motion for summary judgment, the court must construe the record and all

inferences that arise from it in the opposing party’s favor. Doe v. First United Methodist

Church,

,

, superseded by statute on other

grounds.

{¶13} The burden of showing that no genuine issue of material fact exists falls upon

the party who moves for summary judgment. Dresher v. Burt,

,

. However, once the movant supports his or her motion with appropriate

evidentiary materials, the nonmoving party “may not rest upon the mere allegations or

denials of the party’s pleadings, but the party’s response, by affidavit or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue

for trial.” Civ.R. 56(E). See, also, Dresher at 294-295;

.

{¶14} “In reviewing whether an entry of summary judgment is appropriate, an

appellate court must independently review the record and the inferences that can be

drawn from it to determine if the opposing party can possibly prevail.”

(citation omitted). “Accordingly, we afford no deference to the trial court’s decision in

answering that legal question.” Morehead v. Conley (1991),

.

See, also, Schwartz v. Bank One, Portsmouth, N.A. (1992),

;

.

{¶15} Here, we must examine whether the trial court correctly granted summary

judgment on Horsley’s age discrimination claim, his gender discrimination claim, and his

retaliation claim (a/k/a his “whistleblower” claim). Scioto App. No. 10CA3356 6

A. The McDonnell Douglas Test

{¶16} In relevant part, R.C. 4112.02(A) provides that “[i]t shall be an unlawful

discriminatory practice * * * [f]or any employer, because of the * * * sex * * * [or] age * * *

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.”

Furthermore, “[n]o employer shall discriminate in any job opening against any applicant

or discharge without just cause any employee aged forty or older who is physically able

to perform the duties and otherwise meets the established requirements of the job and

laws pertaining to the relationship between employer and employee.” R.C. 4112.14(A).

{¶17} “Courts have recognized that the question facing triers of fact in discrimination

cases is both sensitive and difficult, and [t]here will seldom be ‘eyewitness’ testimony as

to the employer’s mental processes. * * * Thus, when analyzing []discrimination claims

that rely primarily upon circumstantial evidence, Ohio courts employ the framework

articulated in McDonnell Douglas Corp. v. Green (1973),

.” Ohio Univ. v.

Ohio Civ. Rights Comm.,

,

(internal

citations omitted). Therefore, Horsley must first establish a prima facie case of

discrimination. Id.; McDonnell Douglas at 802. “To establish a prima facie case * * *,

[Horsley] must show that 1) [he] is a member of the protected class; 2) [he] was subject

to an adverse employment action; 3) [he] is qualified for the position; and 4) [he] was

replaced by, or [his] discharge permitted the retention of, a person of comparable

qualifications outside the protected class.” Goodyear v. Waco Holdings, Inc., Cuyahoga

App. No. 91432,

, citing Mauzy v. Kelly Servs., Inc., 75 Ohio Scioto App. No. 10CA3356 7

St.3d 578, 582,

. See, also, McDonnell Douglas at 802; Coryell v. Bank

One Trust Co. N.A.,

,

, at paragraph one of the

syllabus (stating that, for age discrimination cases, a plaintiff must show that he or she

“was replaced by, or the discharge permitted the retention of, a person of substantially

younger age”). “The plaintiff has the burden of establishing a prima facie case of

discrimination by a preponderance of the evidence.” Mosley v. Miami Shores of

Moraine, L.L.C., Montgomery App. No. 21587,

, citing Omobien

v. Ohio Civ. Rights Comm. (1993),

; see, also, Basinger v.

Pilarczyk (2000),

.

{¶18} “Once an employee establishes a prima facie case of discrimination, the

burden shifts to the employer to provide some legitimate, nondiscriminatory reason for

the action taken. Kohmescher v. Kroger Co. (1991),

[.] If the

employer establishes a nondiscriminatory reason, the employee then bears the burden

of showing the employer’s proffered reason was a pretext for impermissible

discrimination. Cruz v. South Dayton Urological Associates, Inc. (1997),

[.]” Steadman v. Sterilite Corp., Stark App. No. 2009 CA 00280, 2010-

Ohio-3391, at ¶71. “To make a submissible case on the credibility of his employer’s

explanation, [Horsley] is ‘required to show by a preponderance of the evidence either 1)

that the proffered reasons had no basis in fact; 2) that the proffered reasons did not

actually motivate his discharge; or 3) that they were insufficient to motivate discharge.’”

Tinker v. Sears, Roebuck & Co. (C.A.6, 1997),

, quoting Manzer v.

Diamond Shamrock Chems. Co. (C.A.6, 1994),

, 1084, which was

overruled on other grounds by Geiger v. Tower Automotive (C.A.6, 2009),

. Scioto App. No. 10CA3356 8

See, also, Pattison v. W.W. Grainger, Inc., Cuyahoga App. No. 93648,

,

at ¶33.

B. Horsley’s Age Discrimination Claim

{¶19} As to Horsley’s age-discrimination claim, there are four potential adverse

employment actions that we must analyze under the McDonnell Douglas framework.

These potential adverse employment actions are: (1) the transfer from Robinson to

Eleventh Street; (2) the transfer from Eleventh Street to McDermott; (3) Wolfe and

Conley receiving the Support Manager position instead of Horsley; and (4) Horsley’s

termination. And here, we find that the trial court correctly granted summary judgment

to Scioto Residential as to all four potential adverse employment actions.

1. The Transfer From Robinson to Eleventh Street

{¶20} In relation to the transfer from Robinson to Eleventh Street, we find that

Horsley did not establish a prima facie case of age discrimination. Here, Horsley failed

to demonstrate that the transfer from Robinson to Eleventh Street constituted an

adverse employment action. “An ‘adverse employment action’ is conduct that results in

a materially adverse change in the terms and conditions of employment.” Lookabaugh

v. Spears, Clark App. No. 2007 CA 16,

, citing Keeton v. Flying

J, Inc. (C.A.6, 2005),

; Means v. Cuyahoga Cty. Dept. of Justice

Affairs, Cuyahoga App. No. 87303,

. Moreover, “[a] transfer

without a change in benefits, salary, title, or work hours is usually not an adverse

employment action.” Lookabaugh at ¶15, citing Policastro v. Northwest Airlines, Inc.

(C.A.6, 2002),

. In this regard, Meade testified that Scioto Residential

transferred Horsley to Eleventh Street “at the same level of employment, at the same Scioto App. No. 10CA3356 9

rate of pay, and the same hours.” February 5, 2010 Affidavit of Jennifer Meade at ¶6.

Horsley’s own testimony confirms Meade’s statement. First, Horsley testified that he

had the same position and the same duties at Eleventh Street. And second, Horsley

testified that he suffered no cut in pay or hours.

{¶21} “Q When you moved to 11th Street, you didn’t work any less hours?

{¶22} “A No.

{¶23} “Q And there was no reduce in pay?

{¶24} “A No.” Deposition of Donald Larry

.

{¶25} Therefore, because there is no genuine issue of material fact regarding an

adverse employment action, Horsley has failed to make a prima facie case of age

discrimination in relation to the transfer from Robinson to Eleventh Street.

2. The Transfer From Eleventh Street to McDermott

{¶26} We will assume, without deciding, that Horsley has established a prima facie

case of age discrimination in relation to the transfer from Eleventh Street to McDermott.

Here, Horsley is a member of the protected class; he testified that his hours were cut at

McDermott; Horsley was apparently qualified for the position at either Eleventh Street or

McDermott; and he testified that younger employees took his position at Eleventh

Street. Therefore, we must examine Scioto Residential’s legitimate, nondiscriminatory

reason for the transfer.

{¶27} Scioto Residential claims that it transferred Horsley to McDermott because of

issues between Horsley and a female resident. As Meade testified in her affidavit, “Due

to encounters with a female [Scioto Residential] resident, NH, at the Eleventh Street

home, [Scioto Residential] transferred Mr. Horsley to the McDermott home, a facility Scioto App. No. 10CA3356 10

with all male residents. If difficulties are presented between staff and a patient, [Scioto

Residential] endeavors to transfer employees at the facility, rather than the resident.

[Scioto Residential] does this because the [Scioto Residential] homes serve as the

permanent homes of the [Scioto Residential] residents and it can be traumatic for the

residents to be moved to a new home. * * *.” February 5, 2010 Affidavit of Jennifer

Meade at ¶7.

{¶28} Horsley has offered no evidence to rebut Scioto Residential’s proffered

reason for the transfer to McDermott. Moreover, Horsley misunderstands his burden for

showing pretext. During his deposition, Horsley testified that he did not know the

reason for his transfer to McDermott.

{¶29} “Q And you moved from 11th to McDermott, but you don’t know why?

{¶30} “A Correct.

{¶31} “Q Okay. You have a belief as to the reason why you were moved from 11th

to McDermott?

{¶32} “A No.

{¶33} “Q No idea?

{¶34} “A (The witness nodded negatively.).” Deposition of Donald Larry

.

{¶35} Here, instead of presenting evidence of pretext, Horsley claims that his

“answer that he did not know the reason [for the transfer] confirms that there was no

discernible reason, absent discrimination or retaliation.” Reply Brief of Plaintiff-

Appellant Donald

. Horsley’s statement, however, is simply not accurate.

At this stage, Horsley “bears the burden of showing that the proffered reasons were a Scioto App. No. 10CA3356 11

pretext for age discrimination.” Walter v. ADT Security Systems, Inc., Franklin App. No.

06AP-115,

, citing McDonnell Douglas. And to carry his burden,

Horsley must “point[] to evidence that proves that [Scioto Residential’s] reasons were a

pretext designed to mask age discrimination.” Miller v. Potash Corp. of Saskatchewan,

Inc., Allen App. No. 1-09-58,

(emphasis added). Horsley

cannot satisfy his burden by simply claiming that “he did not know the reason” for his

transfer. This is not “evidence” of pretext. If it was, any plaintiff could defeat summary

judgment by claiming that he or she did not know the reason for an employment

decision.

{¶36} Therefore, because he presented no evidence of pretext, Horsley has not

demonstrated a genuine issue of material fact regarding the legitimate, non-

discriminatory reason for Horsley’s transfer to McDermott.

3. The Support Manager Position

{¶37} Again, we will assume, without deciding, that Horsley has established a prima

facie case of age discrimination in relation to the Support Manager position. Here,

Horsley is in the protected class; he did not get the promotion to Support Manager;

Horsley claims to have been qualified for the Support Manager position; and Scioto

Residential promoted two younger employees instead of Horsley. Therefore, we must

examine Scioto Residential’s legitimate, non-discriminatory reasons for promoting the

two younger employees instead of Horsley.

{¶38} Scioto Residential claims that it promoted the two younger employees

because they were better qualified for the Support Manager position. As Meade

testified in her affidavit, “In August of 2009, [Scioto Residential] filled two management Scioto App. No. 10CA3356 12

positions at [Scioto Residential], known as Support Manager positions. [Scioto

Residential] considered multiple applicants for these positions. [Scioto Residential]

gave these positions to Amie Wolfe and to Nick Conley. In [Scioto Residential’s]

considered judgment, Ms. Wolfe and Mr. Conley were the best qualified applicants for

these positions. Both Ms. Wolfe and Mr. Conley had more experience than Mr. Horsley.

Both Ms. Wolfe and Mr. Conley, in [Scioto Residential’s] opinion, demonstrated, among

other attributes, better abilities to work with fellow employees and [Scioto Residential]

residents than did Mr. Horsley. Both also demonstrated a better ability to handle

stressful situations than did Mr. Horsley. The abilities to work well with other employees

and residents, and to handle stressful situations, are requirements for the Support

Manager position.” April 12, 2010 Affidavit of Jennifer Meade at ¶4.

{¶39} Again, Horsley did not present sufficient evidence to rebut Scioto

Residential’s legitimate, non-discriminatory reasons for promoting Wolfe and Conley.

Horsley’s own deposition testimony demonstrates this lack of evidence.

{¶40} “A * * * Also, they had two jobs opened up for – like supervisors going from

home to home at night, and I requested to be one of those. And they employed young

employees.

{¶41} “Q Okay. And you don’t have any knowledge of the particular qualifications

of those employees that got those jobs?

{¶42} “A No, sir.

{¶43} “Q And you don’t have any knowledge of the thought process or analysis that

[Scioto Residential] made in deciding to give those jobs to those other employees?

{¶44} “A No, sir.” Deposition of Donald Larry

. Scioto App. No. 10CA3356 13

{¶45} By way of affidavit, and despite his earlier testimony, Horsley later claimed

that Conley had less seniority than he did. But here, Horsley offered no evidentiary

support for that statement. And “[w]hen the moving party puts forth evidence tending to

show that there are no genuine issues of material fact, the nonmoving party may not

avoid summary judgment solely by submitting a self-serving affidavit containing no more

than bald contradictions of the evidence offered by the moving party. To conclude

otherwise would enable the nonmoving party to avoid summary judgment in every case,

crippling the use of Civ.R. 56 as a means to facilitate the early assessment of the merits

of claims, pre-trial dismissal of meritless claims, and defining and narrowing issues for

trial.” Mosley v. Miami Shores of Moraine, L.L.C., Montgomery App. No. 21587, 2007-

Ohio-2138, at ¶13 (emphasis sic) (internal quotation omitted). See, also, McPherson v.

Goodyear Tire & Rubber Co., Summit App. No. 21499,

; Porter

v. Saez, Franklin App. No. 03AP-1026,

. As such, Horsley’s

bare assertion, standing alone, does not create a genuine issue of material fact that

promoting Conley was a pretext for age discrimination.

{¶46} Therefore, because he did not present sufficient evidence of pretext, Horsley

has not demonstrated a genuine issue of material fact regarding the legitimate, non-

discriminatory reasons for promoting younger employees to the Support Manager

position.

4. Horsley’s Termination

{¶47} Once more, we will assume, without deciding, that Horsley established a

prima facie case of age discrimination in relation to his termination. Here, Horsley is in

the protected class; he suffered an adverse employment action; and Horsley appears to Scioto App. No. 10CA3356 14

be qualified for his former position at Scioto Residential. There is some dispute as to

whether Horsley was replaced by a younger employee. But we will assume, without

deciding, that he was. Therefore, we must examine Scioto Residential’s legitimate,

non-discriminatory reasons for terminating Horsley.

{¶48} Scioto Residential claims that it terminated Horsley because he “was copying

and removing from [Scioto Residential] confidential patient records. * * * Copying and/or

removing patient records is a * * * violation of [Scioto Residential] rules and is grounds

for immediate suspension and termination.” February 5, 2010 Affidavit of Jennifer

Meade at ¶9. In July 2007, Horsley had been warned about copying patient medical

records. And despite that warning, two Scioto Residential employees witnessed

Horsley copying and/or removing patient medical records in September 2007. As such,

Scioto Residential claims that it terminated Horsley “for reason of the alleged copying

and removal of [Scioto Residential] patient records.” February 5, 2010 Affidavit of

Jennifer Meade at ¶11.

{¶49} Here, we find that Horsley has not raised a genuine issue of material fact

regarding his termination. Horsley has not presented sufficient evidence to demonstrate

any of the following: (1) that the alleged copying-and-removal incident has no basis in

fact; (2) that the alleged copying-and-removal incident did not actually motivate his

discharge; or (3) that the alleged copying-and-removal incident was insufficient to

motivate his termination.

a. No Basis in Fact

{¶50} Horsley claims that he did not copy or remove patient medical records. And

because of his denial, Horsley claims that he has created a genuine issue of material Scioto App. No. 10CA3356 15

fact regarding the proffered reason for his termination. That is, Horsley argues that

summary judgment is inappropriate because a dispute exists as to whether the copying-

and-removal incident actually happened. We, however, agree with the United States

Sixth Circuit Court of Appeals, which held that “the plaintiff must allege more than a

dispute over the facts upon which his discharge was based. He must put forth evidence

which demonstrates that the employer did not ‘honestly believe’ in the proffered non-

discriminatory reason for its adverse employment action. See Smith v. Chrysler,

([C.A.6,] 1998) (citing Fischbach v. Dist[.] of Columbia Dept. of

Corrections,

([C.A.D.C.]1996) (‘[I]f the employer made an error too

obvious to be unintentional, perhaps it had an unlawful motive for doing so.’)).

{¶51} “In order to determine whether the defendant had an ‘honest belief’ in the

proffered basis for the adverse employment action, this Court looks to whether the

employer can establish its ‘reasonable reliance’ on the particularized facts that were

before it at the time the decision was made. See Smith,

. * * * If there is

no material dispute that the employer made a ‘reasonably informed and considered

decision’ that demonstrates an ‘honest belief’ in the proffered reason for the adverse

employment action, the case should be dismissed since no reasonable juror could find

that the employer’s adverse employment action was pretextual.” Braithwaite v. Timken

Co. (C.A.6, 2001),

. See, also, Chen v. Dow Chemical Co. (C.A.6,

2009),

(“When an employer reasonably and honestly relies on

particularized facts in making an employment decision, it is entitled to summary

judgment on pretext even if its conclusion is later shown to be mistaken, foolish, trivial, Scioto App. No. 10CA3356 16

or baseless.”) (internal quotation omitted); Wylie v. Arnold Transp. Servs., Inc.

(S.D.Ohio 2006),

.

{¶52} Here, the uncontested evidence demonstrates that Scioto Residential made a

reasonably informed and considered decision before terminating Horsley. First, Horsley

had been warned about copying patient records before the September 2007 incident.

Second, Scioto Residential relied on two eyewitnesses who saw Horsley engaged in

prohibited activities. Third, supervisors at Scioto Residential met with Horsley to

discuss the allegations, thereby allowing him the opportunity to respond. And fourth,

Scioto Residential apparently investigated the matter before terminating Horsley.

{¶53} In contrast, Horsley has presented no evidence that Scioto Residential did not

honestly believe in the proffered reason for his termination. Horsley’s own testimony

demonstrates the lack of evidence on this issue.

{¶54} “Q Do you believe that there is another or different reason that you were fired

from [Scioto Residential]?

{¶55} “A Not to my knowledge, no, sir.

{¶56} “Q Do you have any evidence that there was a different reason why you were

fired from [Scioto Residential]?

{¶57} “A No.

{¶58} “Q You merely believe there was a different reason?

{¶59} “A No.

{¶60} “Q. So if I understand your testimony today correctly, you indicate that the

reason that it was offered to you as to why you were terminated was for allegedly

copying patient records; correct? That was the reason offered? Scioto App. No. 10CA3356 17

{¶61} “A Yes.

{¶62} “Q As you sit here, you are not aware of a different reason that [Scioto

Residential] may have had for terminating you; correct?

{¶63} “A No, sir.

{¶64} “Q You – I asked you even if you believed that there was a different reason,

whatever that reason was, good, bad or indifferent, that you don’t believe that there is a

different reason that they fired you; correct?

{¶65} “A Correct.

{¶66} “Q And as you sit here, you have no evidence that there was a different

reason that they fired you other than their belief that you had copied a patient’s record?

{¶67} “A Correct.” Deposition of Donald Larry

(emphasis added).

{¶68} As his deposition testimony demonstrates, Horsley failed to present any

evidence that Scioto Residential did not honestly believe in the proffered reason for his

termination. Therefore, there is no genuine issue of material fact as to whether Scioto

Residential honestly believed in the copying-and-removal incident.

b. The Actual Motivation for Horsley’s Discharge

{¶69} Here, Horsley has failed to present any evidence that his termination was

motivated by something other than the copying and removal of patient records. As we

noted above, Horsley agreed that he had no evidence of any other reason for his

termination. See, generally, Senu-Oke v. Bd. of Edn. of Dayton City School Dist.,

Montgomery App. No. 20967,

(“[M]ere conjecture that an

employer’s explanation is a pretext for intentional discrimination is an insufficient basis

for denial of summary judgment.”), citing Branson v. Price River Coal Co. (C.A.10, Scioto App. No. 10CA3356 18

1988),

. Therefore, Horsley has not established a genuine issue of

material fact as to whether something other than the copying-and-removal incident

actually motivated his discharge.

c. Insufficient to Motivate Horsley’s Termination

{¶70} Horsley argues that, even if he engaged in the copying and removal of patient

records, his actions were insufficient to motivate termination. Instead, Horsley contends

that “the proper penalty * * * would have been a five day suspension, not termination, as

confirmed by the Ohio Bureau of Unemployment Compensation.” Brief of Plaintiff-

Appellant Donald

. Aside from his own affidavit, there is no evidence in

the record to corroborate Horsley’s claim that he should have received a “five-day

suspension.” This is significant because “self-serving affidavits, unsupported and

without corroborating evidentiary materials, are not sufficient to create a genuine issue

of material fact on summary judgment[.]” Camp St. Mary’s Assn. of W. Ohio

Conference of the United Methodist Church, Inc. v. Otterbein Homes,

,

, citing Am. Heritage Life Ins. Co. v. Orr (C.A.5, 2002),

, 710 (other citations omitted).

{¶71} But even if the Ohio Bureau of Unemployment Compensation did make a five-

day-suspension finding, there is ample evidence that copying and removing patient

records was sufficient motivation for Horsley’s termination. See Abdulnour v. Campbell

Soup Supply Co. (C.A.6, 2007),

(“[S]ummary judgment is appropriate

* * * if the plaintiff ‘only created a weak issue of fact * * *’ and there is ample evidence to

support the employer’s position.”), quoting Reeves v. Sanderson Plumbing Products,

Inc. (2000),

. Copying and removing patient records violates at least Scioto App. No. 10CA3356 19

one Scioto Residential policy and at least two Scioto Residential work rules. More

importantly, copying and removing patient records may violate state law. See R.C.

5123.62(T) (providing that “[t]he rights of persons with mental retardation or a

developmental disability include * * * [t]he right to confidential treatment of all

information in their personal and medical records”). We believe that multiple violations

of company policy and, perhaps, state law are a sufficient cause for discharge. And

especially because Horsley had been warned about copying patient records in the past,

there is ample evidence that the September 2007 copying-and-removal incident was

sufficient motivation for his termination.

{¶72} Accordingly, no genuine issue of material fact exists as to whether the

copying-and-removal incident was sufficient to motivate Horsley’s discharge.

5. Age Discrimination Synopsis

{¶73} In summary, we find that Scioto Residential is entitled to summary judgment

on Horsley’s age discrimination claim. Regarding the transfer from Robinson to

Eleventh Street, Horsley did not establish a prima facie case of age discrimination.

Regarding the transfer from Eleventh Street to McDermott, Horsley presented no

evidence that Scioto Residential’s reason for the transfer was pretextual. Regarding the

promotion to Support Manager, Horsley has not demonstrated a genuine issue of

material fact regarding Scioto Residential’s legitimate, non-discriminatory reasons for

promoting younger employees. And finally, Horsley has not shown by a preponderance

of the evidence that his termination was a pretext for impermissible age discrimination.

{¶74} Therefore, after construing the record and all inferences therefrom in

Horsley’s favor, we find (1) that there is no genuine issue as to any material fact, (2) that Scioto App. No. 10CA3356 20

Scioto Residential is entitled to judgment as a matter of law on Horsley’s age

discrimination claim, and (3) that reasonable minds can come to just one conclusion,

and that conclusion is adverse to Horsley.

C. Horsley’s Gender Discrimination Claims

{¶75} “Ohio courts have adopted the McDonnell Douglas formula to claims for sex

discrimination brought under R.C. Chapter 4112.” Tack v. PCC Airfoils, Inc., Stark App.

No. 2008CA15,

, citing Kundtz v. AT & T Solutions, Inc.,

Franklin App. No. 05AP-1045,

, in turn citing Starner v.

Guardian Indus. (2001),

. “However, in cases involving

reverse gender discrimination, courts have modified the McDonnell Douglas standard to

enable plaintiffs who are members of a dominant group to prove a prima facie case of

discrimination. To show reverse discrimination and to avoid a summary judgment, the

plaintiff must establish a prima facie case by showing: (1) background circumstances

supporting the suspicion that the defendant is the unusual employer who discriminates

against the majority; and (2) that the employer treated employees who were similarly

situated, but not members of the protected group, more favorably.”

(citations omitted). See, also, Bogdas v. Ohio Dept. of Rehab. & Corr., Franklin App.

No. 09AP-6327,

, at ¶31; Murray v. Thistledown Racing Club, Inc.

(C.A.6, 1985),

, 67. Again, Horsley must show a prima facie case of

reverse gender discrimination by a preponderance of the evidence. Harding v. Gray,

(C.A.D.C. 1993),

; Smith v. City of Dayton (S.D.Ohio 1993),

. Scioto App. No. 10CA3356 21

{¶76} We find that Horsley has not established a prima facie case of reverse gender

discrimination. Here, Horsley has not presented enough evidence to demonstrate that

Scioto Residential is the unusual employer that discriminates against males. Horsley’s

affidavit contains the only evidence relevant to the unusual-employer issue. Therein,

Horsley states that he is “aware that [Scioto Residential’s] employee base is

approximately 90% female[.]” Affidavit of Plaintiff Donald

. Horsley offers

no support for his assertion about Scioto Residential’s workforce, and “bare assertions

simply are not enough to make a prima facie case of discrimination.” Harris v. Greater

Cleveland Regional Transit Auth., Cuyahoga App. No. 89541,

,

citing Lennon v. Cuyahoga Cty. Juvenile Court, Cuyahoga App. No. 86651, 2006-Ohio-

2587, at ¶16-17. See, generally, Sutherland v. Michigan Dept. of Treasury (C.A.6.,

2003),

(finding that the plaintiff established a prima facie case of

reverse discrimination because the plaintiff “provided a substantial amount of statistical

data relating to * * * promotion and hiring patterns”). In other words, Horsley’s bare

assertion about Scioto Residential’s work force does not provide the specific facts

necessary to establish a prima facie case of reverse gender discrimination.

{¶77} Horsley also claims that “many of the persons who received better treatment

than [he did] were female.” Brief of Plaintiff-Appellant Donald

. For that

reason, Horsley argues that Scioto Residential is the unusual employer that

discriminates against males. But in his brief, Horsley fails to note (1) who, exactly,

received better treatment than he did or (2) how, exactly, these individuals received

better treatment. Therefore, in this regard, Horsley has failed to demonstrate error with

reference to the record. Nevertheless, we have reviewed Horsley’s affidavit and Scioto App. No. 10CA3356 22

deposition testimony for evidence that Scioto Residential is the unusual employer that

engages in reverse gender discrimination. And although Horsley mentioned several

females who supposedly received more work hours and opportunities for overtime,

Horsley also stated that he was passed over for a promotion that went to another male.

As Horsley noted, “I was denied promotion to a Support Manager position, which

position was awarded to a less qualified, younger ‘rehired’ employee of defendants. * * *

[I]t was Nick Conley who received the position.” Affidavit of Plaintiff Donald

. A male receiving a promotion does not support the suspicion that Scioto

Residential discriminates against male employees. In fact, Conley receiving the

Support Manager position supports the opposite inference – that Scioto Residential

does not discriminate against males.

{¶78} Thus, Horsley failed to establish a prima facie case of reverse gender

discrimination by a preponderance of the evidence. More specifically, Horsley failed to

establish that Scioto Residential is the unusual employer who discriminates against

males. Therefore, there is no genuine issue of material fact regarding Horsley’s

reverse-gender-discrimination claim, and Scioto Residential is entitled to judgment as a

matter of law. See, e.g.,

(finding that “[a]ppellant failed to establish that

[a]ppellee is the unusual employer who discriminates against male employees”).

D. Whistleblower Claim

{¶79} “Under R.C. 4113.52, Ohio’s Whistleblower Statute, an employer may not

take disciplinary or retaliatory action against an employee who reports certain violations.

The statute addresses a situation in which an employee, in the course of his

employment, becomes aware of a legal violation that the employer has the authority to Scioto App. No. 10CA3356 23

correct, and the employee reasonably believes that the violation is either a criminal

offense that is likely to cause an imminent risk of physical harm or a hazard to public

health or safety, or a felony.

{¶80} “Under those circumstances, the employee must orally notify his supervisor or

other responsible officer of the employer of the violation and subsequently file with that

person a written report that provides sufficient detail to identify and describe the

violation. If the employee satisfies those requirements and the employer fails to correct

or make a good-faith effort to correct the violation within 24 hours, the employee may

then file a written report with outside authorities.” Abrams v. Am. Computer

Technology,

,

(internal citations to R.C.

4113.52 omitted).

{¶81} “Clearly, the provisions of R.C. 4113.52(A)(1) contemplate that the employer

shall be given the opportunity to correct the violation.” Contreras v. Ferro Corp. (1995),

. Thus, “[i]n order for an employee to be afforded protection as a

‘whistleblower,’ such employee must strictly comply with the dictates of R.C. 4113.52.

Failure to do so prevents the employee from claiming the protections embodied in the

statute.”

at syllabus; see, also,

(“To be afforded protection as a

whistleblower, an employee must strictly comply with the mandates of R.C. 4113.52.”).

{¶82} Here, Horsley does not even allege that he complied with the requirements of

R.C. 4113.52. “The statute mandates that the employer be informed of the violation

both orally and in writing. An employee who fails to provide the employer with the

required oral notification and written report is not entitled to statutory protection for

reporting the information to outside authorities.”

. Horsley did make Scioto App. No. 10CA3356 24

various complaints to outside officials. But nowhere does he claim that he first provided

Scioto Residential with the required oral notification and written report. Instead, Horsley

maintains that Scioto Residential was “on notice” of the perceived violations. Brief of

Plaintiff-Appellant Donald

. Even if this were true, Scioto Residential being

“on notice” is insufficient to invoke the protections of R.C. 4113.52.

{¶83} “[I]f an employee does not ‘whistle’ both orally and in writing, he is not a

whistleblower.”

. Here, Horsley does not even claim that he properly

notified his employers of the perceived violations. As a result, no reasonable mind

could find that he “properly bl[e]w the whistle.”

{¶84} Because there are no genuine issues of material fact regarding Horsley’s

failure to comply with R.C. 4113.52, Scioto Residential is entitled to judgment as a

matter of law on Horsley’s whistleblower claim.

E. Conclusion

{¶85} After construing the record and all inferences therefrom in Horsley’s favor, we

find the following: (1) there are no genuine issues of material fact as to Horsley’s age

discrimination, gender discrimination, or whistleblower claims; (2) Scioto Residential is

entitled to judgment as a matter of law on all of Horsley’s claims; and (3) reasonable

minds can come to just one conclusion as to all of Horsley’s claims, and that conclusion

is adverse to Horsley.

{¶86} Accordingly, we overrule Horsley’s assignment of error and affirm the

judgment of the trial court.

JUDGMENT AFFIRMED. Scioto App. No. 10CA3356 25

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.