[Cite as Mangino v. W. Res. Fin. Corp.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

JANET MANGINO C.A. No. 11-CA-0050

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE WESTERN RESERVE FINANCIAL COURT OF COMMON PLEAS CORP., dba Western Reserve Group COUNTY OF WAYNE, OHIO CASE No. 10-CV-0255 Appellee

DECISION AND JOURNAL ENTRY

Dated: August 27, 2012

WHITMORE, Presiding Judge.

{¶1} Plaintiff-Appellant, Janet Mangino, appeals from the judgment of the Wayne

County Court of Common Pleas, granting Defendant-Appellee, Western Reserve Mutual

Casualty Company’s (“Western Reserve”), motion for summary judgment. This Court affirms.

I

{¶2} Mangino was hired by Western Reserve as a Personal Lines Underwriter II in

June 2008. Mangino had approximately 18 years of experience working in the insurance

industry. Western Reserve provides extensive in-house training for new underwriters and aims

to grant underwriting privileges within 90 days of hire. Mangino obtained her underwriting

authority in October 2008, approximately 30 days behind schedule.

{¶3} While Mangino’s February 2009 performance review indicated that she met all

position requirements, her supervisor did note concerns about her failure to meet deadlines and

her overreliance on other underwriters to help manage her work. In April 2009, Mangino’s 2

supervisors again met with her to discuss these concerns. Mangino continued to work with her

supervisors on performance goals from April through September 2009. Mangino was never able

to meet Western Reserve’s turn-around deadlines for new business or change orders.

{¶4} Mangino expressed concern about the lack of support she was receiving from

Mary Miller, a Senior Customer Service Representative assigned to Mangino. Miller, according

to Mangino, was not timely passing work onto her and would pass along work that Miller herself

should have been processing. Mangino cited this lack of support for her failure to meet

deadlines. Kaye Risner, Mangino’s and Miller’s supervisor, instituted a tracking system in April

2009 to monitor when files were passed between Mangino and Miller. This tracking system was

a way to ensure Mangino was not being held responsible for any delays caused by Miller. This

tracking system remained in effect for the remainder of Mangino’s employment.

{¶5} Sometime around June 2009, Mangino found a stack of unprocessed inspection

reports buried in a box under Miller’s desk. Inspection reports on a property are used to verify

that a policy accurately reflects the associated risks and replacement value. Insurance agents are

primarily responsible for submitting the correct replacement value, but an inspection report may

be ordered at the discretion of the underwriter. Inspection reports should be processed timely

because the policy has a 60 day window in which it may be adjusted. After the 60 days, the

policy may only be adjusted under certain circumstances or at the annual renewal period.

{¶6} Mangino reported finding the inspection reports to Kara Macko, a Human

Resources Generalist. Macko told Mangino to discuss the matter with her supervisor, Risner,

which Mangino did. At the beginning of July, Lee Campbell replaced Risner as Mangino’s

supervisor. Campbell became aware of the inspection reports shortly thereafter. Campbell met

with Mangino and Miller and told them to work together to get the reports processed by the 3

beginning of August. In early August, Mangino’s frustration with the inspection reports

continued and she requested another meeting with Macko. Fritz Raab, Director of Human

Resources, met with Mangino and Macko and informed Mangino that the inspection reports were

not a matter for Human Resources. No further discussions were had regarding the inspection

reports.

{¶7} On August 10, 2009, Mangino was placed on a Performance Improvement Plan

(“PIP”). The inspection reports were not included in the PIP. As part of this improvement plan,

Mangino was to meet weekly with Campbell to help monitor her work flow. Mangino was late

for all three meetings that were held before she was terminated. Mangino admitted that she

“misspoke” during the second meeting, when she reported that all but two of her change orders

had been processed. In reality, 13 of Mangino’s change orders had not been completed. After

this meeting, Campbell felt that Mangino was no longer credible.

{¶8} Human Resources and Mangino’s supervisors continued to meet throughout

September to discuss concerns about Mangino’s performance and to track her progress.

Mangino did not meet the goals set forth in her PIP. The decision to terminate Mangino was

made in late September or early October, approximately two months after the PIP was instituted.

Mangino’s employment was terminated on October 7, 2009.

{¶9} Mangino filed suit alleging age discrimination and wrongful termination based on

public policy. Western Reserve filed a motion for summary judgment, which the court granted.

Mangino now appeals and raises two assignments of error for our review. Mangino limits her

challenges to the dismissal of her claim of wrongful termination based on public policy. We,

therefore, limit our review accordingly. To facilitate the analysis, we address the assignments of

error out of order. 4

II

Assignment of Error Number Two

THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER THE EVIDENCE SUBMITTED BY MANGINO TO ESTABLISH THE “CAUSATION” AND “OVERRIDING JUSTIFICATION” ELEMENTS IN A LIGHT MOST FAVORABLE TO HER AS REQUIRED UNDER OHIO RULE OF CIVIL PROCEDURE 56(C).

{¶10} In her second assignment of error, Mangino argues that the court erred in granting

Western Reserve’s motion for summary judgment because it failed to properly analyze her claim

for wrongful termination based on public policy. We disagree.

{¶11} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co.,

(1996). To prevail on a motion for summary judgment, the

moving party must show:

(1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion when viewing evidence in favor of the nonmoving party, and that conclusion is adverse to the nonmoving party.

The party moving for summary judgment bears the initial burden of informing the trial court

of the basis for the motion and pointing to parts of the record that show the absence of a genuine

issue of material fact. Dresher v. Burt,

(1996). Once this burden is

satisfied, the non-moving party bears the burden of offering specific facts to show a genuine

issue for trial.

. The non-moving party may not rest upon the mere allegations and

denials in the pleadings, but instead must point to or submit some evidentiary material that

demonstrates a genuine dispute over a material fact. Henkle v. Henkle,

(12th Dist. 1991). Accord Thatcher v. Goodwill Industries of Akron,

(9th Dist. 1997). 5

The traditional rule in Ohio and elsewhere is that a general or indefinite hiring is terminable at the will of either party, for any cause, no cause or even in gross or reckless disregard of any employee’s rights, and a discharge without cause does not give rise to an action for damages.

Collins v. Rizkana,

(1995). An exception to this at-will employment

doctrine has been recognized by the courts; an employer may not discharge an employee in

violation of public policy.

. To support a claim for wrongful discharge in violation of

public policy the plaintiff must meet a four-part test.

1. That a clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law (the clarity element).

2. That dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element).

3. The plaintiff’s dismissal was motivated by conduct related to the public policy (the causation element).

4. The employer lacked overriding legitimate business justification for the dismissal (the overriding justification element).

(Alterations, quotations, and emphasis omitted.)

. The clarity and jeopardy elements

are questions of law to be determined by the court, while the causation and overriding

justification elements are questions of fact to be decided by the trier of fact.

. To avoid

summary judgment, however, Mangino must establish a genuine issue of material fact as to each

of the four elements. Himmel v. Ford Motor Co.,

(6th Cir. 2003).

{¶12} Mangino argues that there is a clear public policy “against misrepresentations

made by insurers to their insured and misrepresentations made to insurers * * *.” Mangino cites

to several provisions in Title 39 of the Ohio Revised Code as support for this public policy.

Mangino argues that (1) allowing Western Reserve to terminate her employment under the

circumstances would discourage other employees from raising concerns about unprocessed 6

inspection reports; (2) her reporting the inspection reports to Human Resources was the cause of

her termination; and (3) Western Reserve lacked an overriding justification for ending her

employment.

{¶13} Assuming that there is an applicable public policy and Mangino’s termination

jeopardizes that public policy, we conclude Mangino has failed to establish a genuine issue of

material fact as to the causation element.

{¶14} “A causal link can be shown by either of two methods: (1) through direct

evidence; or (2) through knowledge coupled with a closeness in time that creates an inference of

causation.” Parnell v. West, 6th Cir. No. 95-2131,

, *2 (May 21, 1997).

Causation By Direct Evidence

{¶15} Mangino presented no direct evidence that her termination was related to the

inspection reports. In her deposition Mangino was asked, “[w]ho specifically at the company do

you believe considered these inspection reports in evaluating your performance or in terminating

your employment?” Mangino responded, “I can’t answer that. I don’t know.” Mangino further

testified that there were no witnesses that could help show the inspection reports were the reason

for her termination.

{¶16} The concerns about Mangino’s performance precede the discovery of the

inspection reports. Mangino testified that as early as February 2009, months before the

inspection reports were found, she knew she was not meeting the turn-around deadlines and

understood that her performance must improve. Her performance, however, did not improve. In

April 2009, Mangino had a meeting with her senior supervisor, Portia Wilson, to discuss her

continued failure to meet the company’s processing deadlines. Mangino testified that the five

day deadline for processing new applications is important for several reasons, including billing 7

and good customer service. Significantly, Mangino acknowledged that during the course of her

employment, she never met the turn-around deadline for new applications.

{¶17} All of the testimony leads to the conclusion that the inspection reports were not

considered in evaluating Mangino’s performance. Terry Rhodes, Personal Lines Manager at

Western Reserve, testified that he was aware of the inspection reports, but “thought they were

being taken care of, and then it was pretty much a nonissue.” Campbell testified that inspection

reports may be ordered at the discretion of the underwriter, but are not part of Western Reserve’s

guidelines; the company is not required to order an inspection report on a property. According to

Mangino, the company relies on the agent to do the “basic frontline underwriting” and it is the

agent, therefore, that is responsible for setting the correct replacement value, which may be

verified by the underwriter through an inspection report. Campbell met with Miller and

Mangino and told them to work together to get the reports processed. Miller had the authority to

process inspection reports on properties below a certain value. Those reports that related to

properties above that value were to be processed by Mangino. Campbell requested the reports be

completed by the beginning of August, which was prior to Mangino being placed on a PIP.

Moreover, Raab and Campbell both testified that the inspection reports were not part of

Mangino’s PIP.

Causation By Indirect Evidence

{¶18} Mangino argues that the causation element is satisfied by indirect evidence

because of the “temporal proximity between her complaints [about the inspection reports] and

her termination.” The case law, however, does not support the inference of causation by timing

alone when several months lapse between the employee’s protected activity and termination. 8

{¶19} “The cases that accept mere temporal proximity between an employer’s

knowledge of protected activity and an adverse employment action as sufficient evidence of

causality to establish a prima facie case uniformly hold that the temporal proximity must be

‘very close.’” Clark County School Dist. v. Breeden,

(2001). Accord

Healey v. Goodyear Tire & Rubber Co., 9th Dist. No. 25888,

. “[T]he

interval of two months between the complaint and [the employee’s] termination [] dilutes any

inference of causation” and cannot justify a finding of causation. Kipp v. Missouri Hwy. and

Transp. Comm.,

(8th Cir. 2002). “Unless there is very close temporal

proximity between the protected activity and the retaliatory conduct, the plaintiff must offer

additional evidence to establish causation.” O’Neal v. Ferguson Const. Co.,

(10th Cir. 2001). Accord Ningard v. Shin-Etsu Silicones of Am., Inc., 9th Dist. No. 24524,

, ¶ 17, quoting Zechar v. Ohio Dept. of Edn., Ct. of Cl. No. 2001-01221, 2002-

Ohio-6873, ¶ 11. (“other evidence is usually required, especially where the events are separated

by more than a few days or weeks”).

{¶20} Mangino’s employment was terminated on October 7, 2009, two months after her

last meeting with Human Resources regarding the inspection reports and approximately three

months after first informing Human Resources about the hidden reports. Because of the gap in

time between the alleged protected activity and Mangino’s termination, Mangino could not rely

solely on temporal proximity to satisfy the causation element. Instead, Mangino had to put forth

some additional evidence.

1. Additional Evidence To Establish Causation

{¶21} Mangino argues that Western Reserve’s reason for terminating her employment is

pretextual, which is sufficient evidence to establish a genuine issue of material fact as to the 9

causation element. Western Reserve terminated Mangino for failing to meet specific

performance goals. Mangino acknowledges that she was not meeting her performance goals, but

argues that other underwriters were also not meeting the goals, and therefore, it may be inferred

that she was fired because of the inspection reports. Mangino argues the circumstances show she

was treated differently than other underwriters. After reviewing the record, we conclude

Mangino’s argument is without merit.

{¶22} Western Reserve had reason to treat Mangino differently than other underwriters.

While there is evidence that other underwriters were not meeting the five day turn-around goal,

Mangino’s processing time was the worst among the underwriters. Although Mangino’s

monthly average processing numbers were not drastically behind other underwriters, she

admitted that her supervisors expressed concern about how much she relied on the assistance of

other underwriters to help manage her work.

QUESTION: Kay[e] Risner talked to you about your doing more of your own work, didn’t she?

[MANGINO]: Yes.

QUESTION: And she didn’t want you to be relying so much on Tina Cabahug, [another underwriter]?

[MANGINO]: That’s right.

{¶23} In addition to the five day deadline for new applications, Mangino failed to meet

deadlines for renewal reports.

QUESTION: And you never got to a point where those [renewals] were consistently being done in a timely manner, did you?

[MANGINO]: No.

Mangino presented no evidence that other underwriters also failed to process renewal reports

timely. Further, Mangino testified that she “misspoke” to Campbell during one of her weekly 10

meetings, when she told her that all but two of her renewal reports were complete. In actuality,

13 renewal reports remained unfinished. Campbell testified that after that meeting, she no longer

believed Mangino was credible. Western Reserve’s decision to terminate Mangino and not other

underwriters does not support the inference of discrimination.

{¶24} Even reviewing the facts in a light most favorable to Mangino, we conclude that

Mangino has failed to produce any evidence supporting the conclusion that her termination was

related to the inspection reports. Because Mangino has failed to show a genuine issue of

material fact as to the causation element, the court did not err in granting Western Reserve’s

motion for summary judgment. See Healey,

. Mangino’s second

assignment of error is overruled.

Assignment of Error Number One

THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY THE 3-PRONG TEST WHEN ANALYZING WHETHER THE CIRCUMSTANCES SURROUNDING MANGINO’S TERMINATION SATISFIED THE “JEOPARDY” ELEMENT OF A CLAIM FOR WRONGFUL TERMINATION BASED ON PUBLIC POLICY.

{¶25} Because we conclude that Mangino has not shown a question of material fact as to

the causation element, her first assignment of error is moot and we decline to address it. App.R.

12(A)(1)(c).

III

{¶26} Mangino’s assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

Judgment affirmed. 11

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

MOORE, J. CONCURS.

CARR, J. CONCURS IN JUDGMENT ONLY.

APPEARANCES:

KAMI D. BRAUER, Attorney at Law, for Appellant.

DANIEL W. SRSIC, Attorney at Law, and DAVID L. JARRETT, Attorney at Law, for Appellee.