[Cite as Hinton v. Ohio Dept. of Youth Servs., 2022-Ohio-4783.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Roger Hinton et al., :

Plaintiffs-Appellants, : No. 22AP-272

 (Ct. of Cl. No. 2021-00063JD) 

v. : 

 (REGULAR CALENDAR)

Ohio Department of Youth Services et al., : 

 

Defendants-Appellees. :

D E C I S I O N

Rendered on December 29, 2022

On brief: Olsheski Law Co., LPA, and Jessica L. Olsheski, for 

appellants. Argued: Jessica L. Olsheski.

On brief: Dave Yost, Attorney General, Heather Lammardo,

Michelle L. Brizes, and Lindsey M. Grant, for appellees.

Argued: Heather Lammardo. 

APPEAL from the Court of Claims of Ohio

McGRATH, J. 

{¶ 1} Plaintiffs-appellants Roger Hinton and Denise Guess appeal from a decision 

of the Court of Claims of Ohio granting the motion for summary judgment of defendantsappellees Ohio Department of Youth Services ("DYS") and Ohio Department of 

Rehabilitation and Correction ("ODRC"). For the following reasons, we affirm.

{¶ 2} On February 4, 2021, appellants filed a complaint against appellees alleging 

claims of racial discrimination, hostile work environment, and retaliation pursuant to R.C. 

Chapter 4112. The claims arose from appellants' employment with DYS. Both Hinton and 

Guess began working for DYS in 1991 and remained with DYS until their involuntary 

disability separations. The complaint details various incidents throughout their 
No. 22AP-272 2

employment that appellants allege constitute discrimination based on their race. 

Appellants are both African-American.

{¶ 3} Appellants held various positions with DYS throughout their tenures, but 

both worked at the Information Technology Help Desk ("help desk") at the time of their 

disability separation. The help desk was a project shared by DYS and ODRC but was 

physically located in an area occupied by ODRC. Of the nine total staff members who 

worked at the help desk, six were ODRC employees, one was an ODRC contractor, and the 

remaining two, Guess and Hinton, were DYS employees. The six ODRC help desk 

employees were all white males. Their names are Chris McCoy, Tim Fornal, Jimmy Long, 

Noel Cohen, Braeden Ramge, and Steve Rayburn. The ODRC contractor, Tyler Thompson, 

is a mixed-race female. While both agencies utilized and operated the help desk, DYS and 

ODRC both maintained separate management policies and procedures, separate 

supervisory staff, and separate human resources departments. Thus, Guess and Hinton 

were subject to DYS policies and procedures, while ODRC employees were subject to ODRC

policies and procedures. 

{¶ 4} In 2016, prior to Guess's assignment to the help desk, DYS investigated and 

disciplined Guess due to her sick leave balance. Guess was aware that a male coworker had 

a similar sick leave balance but did not face investigation or discipline. Accordingly, on 

February 22, 2017, Guess filed a complaint with the Ohio Civil Rights Commission 

("OCRC"). DYS ultimately removed the written discipline from Guess's file as the result of 

a mutual agreement. Five days later, on February 27, 2017, DYS administered a written 

coaching to Guess for "attendance and dependability" issues. (Compl. at ¶ 16.)

{¶ 5} DYS assigned Guess to the help desk in July 2018. On January 17, 2019, 

Guess received a written coaching from Linda Diroll, the manager of the help desk and an

ODRC employee. The written coaching related to Guess working 0.10 hours of overtime 

without prior authorization. According to Guess, a written coaching is not a formal 

disciplinary measure but "puts you on the discipline grid" such that subsequent issues 

would result in formal discipline. (Guess Depo. at 80.) Guess was aware of DYS's 

unauthorized overtime policy but was not aware that she had worked over 40 hours in the 

week that she received the written coaching. Further, Guess was aware that other white 

male help desk staff had worked overtime before and were not disciplined for it. These men 

worked for ODRC, not DYS, and Guess acknowledges she is not familiar with ODRC's 
No. 22AP-272 3

policies. Guess also alleged she knew of other DYS employees staffed at other locations who 

had worked overtime without discipline, though she admits she does not know whether 

these other employees had received prior authorization to work overtime. As a result of the 

written coaching from the ODRC supervisor, Guess filed a grievance but it was not heard. 

{¶ 6} In February 2019, Guess utilized leave time on two occasions to attend court 

hearings related to a citation for operating a vehicle under the influence. Guess did not 

provide the reason for use of leave time to DYS. Subsequently, Guess approached Diroll, 

the help desk manager, about needing future time off every Tuesday for a court-related 

matter. Diroll refused to approve Guess's leave request without a court order. Guess was 

unable to obtain a court order but provided alternative documentation to Diroll. After 

Diroll again refused to approve her leave request, Guess contacted her DYS supervisors to 

explain why she needed to utilize future leave time. The network supervisor for DYS, Scott 

Welsh, approved Guess's request for future use of leave subject to certain timeframe 

stipulations. 

{¶ 7} Shortly thereafter, on March 19, 2019, Guess received a formal notice to 

attend a pre-disciplinary meeting for failing to receive a manger's approval for using leave 

to defend a court action. Guess contends she was not aware at the time that there was a 

policy requiring her to disclose why she was using her personal leave time. She agrees, 

however, that she signed a form indicating she had reviewed DYS's policies. Further, Guess 

believes Diroll initiated the investigation due to racial bias. 

{¶ 8} DYS assigned Hinton to the help desk in October 2018. In an October 18, 

2018 e-mail, the director of DYS informed DYS help desk employees that they were 

required to punch in and/or out when coming to and going from the building. When 

Hinton returned from a lunch break on December 6, 2018, he attempted to clock back in 

using his work badge but the timekeeping system would not accept his badge. Hinton then 

manually entered his time in the timekeeping system using the time-editor feature. 

Subsequently, in February 2019, Hinton received a formal notice of a pre-disciplinary 

hearing related to his unauthorized manual entry of time. That hearing was later cancelled. 

Hinton maintains that his white male help desk coworkers have manually entered their 

time without an ensuing investigation. Hinton agrees he is not familiar with ODRC policies 

with respect to timekeeping, breaks or leave time. 
No. 22AP-272 4

{¶ 9} In 2019, Jeff Cavendish, another ODRC help desk supervisor, received 

complaints from ODRC help desk employees about Guess's and Hinton's workplace 

conduct. After consulting with Diroll, Cavendish held a meeting with ODRC help desk 

employees and informed them that if they had workplace complaints they believed 

warranted further investigation, they would need to complete an incident report. 

Cavendish asserts he approached all the employees who were at the help desk at the time 

of the meeting and had them come to the computer lab for the meeting, but Guess and 

Hinton maintain Cavendish only approached the white male ODRC employees. Guess and 

Hinton assert they were at their desks at the time but not included in the meeting. 

Thompson, the ODRC contractor, was not at her desk at the time Cavendish initiated the 

meeting. Cavendish did not conduct a subsequent meeting with Guess, Hinton, or 

Thompson. In his time as a supervisor, Cavendish had only held one other meeting, and 

that prior meeting included all help desk employees. 

{¶ 10} Following the meeting, McCoy informed Thompson that Cavendish had 

instructed the help desk employees to complete an incident report any time there was an 

issue with Guess or Hinton. Thompson did not perceive that she was excluded from the 

meeting because of her race; however, she believes the meeting led to a "war" among DYS 

and ODRC help desk employees where both groups "went back and forth filing reports on 

each other." (Thompson Depo. at 29.)

{¶ 11} Guess learned of the meeting from Thompson and then informed Hinton. 

Appellants subsequently learned that other help desk employees had made statements 

against them, and a DYS labor relations officer instructed appellants to submit their own 

written statements. Guess submitted one statement alleging that the meeting created a 

hostile work environment by instructing "all white males" to report incidents about the only 

two black help desk employees, and excluded the only other minority employee. (Guess 

Depo. at 154.) Hinton submitted three statements alleging: (1) offensive discussions, 

including the topics of "gun control, homophobia, abortion, lynching, and the use of 

profanity" disrupted the workplace; (2) the February 26, 2019 meeting created a hostile 

work environment, and (3) Diroll and Cavendish allowed ODRC employees to get away 

with theft of time. (Hinton Depo. at Ex. G.)

{¶ 12} On March 20, 2019, Guess informed Hinton that she planned to contact the 

Employee Assistance Program ("EAP") because she was feeling discriminated against, was 
No. 22AP-272 5

afraid she was going to be fired for issues related to her unauthorized overtime and use of 

leave, and she could not tolerate the workplace environment any longer. Hinton then 

contacted EAP and stated he was being harassed by his employer, was subject to regular 

investigations, and was under constant stress from trying to get someone to listen to his 

concerns about the work environment. Both Guess and Hinton left work after their 

discussions with EAP and have not returned. On September 1, 2019, DYS involuntarily 

separated Guess from employment due to disability. DYS involuntarily separated Hinton 

from employment due to disability on October 13, 2019. Appellants have not requested 

reinstatement. 

{¶ 13} Appellees filed a motion for summary judgment on January 6, 2022. 

Appellees argued all claims against ODRC fail in their entirety because ODRC was not 

appellants' employer. Further, appellees argued appellants could not demonstrate a prima 

facie case of discrimination based on disparate treatment, ODRC employees were not 

similarly situated to appellants, and appellees set forth legitimate, non-discriminatory 

reasons for the actions. Appellees further argue appellants did not put forth sufficient 

evidence to support their hostile work environment claim and that the applicable statute of 

limitations bars Guess's retaliation claim. Appellants filed a memorandum contra on 

February 17, 2022, arguing there remained genuine issues of material fact on each of their 

claims. 

{¶ 14} In a March 28, 2022 decision, the Court of Claims determined there 

remained no genuine issues of material fact and that appellees are entitled to judgment as 

a matter of law on all claims. That same day, the court issued a judgment entry granting 

appellees' motion for summary judgment and entering judgment in favor of appellees. 

Appellants timely appeal. 

{¶ 15} Appellants assign the following errors for our review:

[I.] The trial court's decision is against the manifest weight of 

the evidence.

[II.] The trial court's decision is not supported in law or fact.

[III.] The trial court failed to take into account evidence of 

damages to Plaintiffs.

[IV.] Genuine issues of material fact remain as to each and 

every one of Plaintiffs' claims.
No. 22AP-272 6

[V.] Trial court failed to address whether a disability separation 

caused by the employer constitutes an adverse action.

{¶ 16} An appellate court reviews summary judgment under a de novo standard. 

Estate of Sample v. Xenos Christian Fellowship,Inc., 10th Dist. No. 20AP-563, 2021-Ohio3898, ¶ 9. Summary judgment is appropriate only when the moving party demonstrates: 

(1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as 

a matter of law, and (3) reasonable minds could come to but one conclusion and that 

conclusion is adverse to the party against whom the motion for summary judgment is made, 

that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 

56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).

{¶ 17} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of 

informing the trial court of the basis for the motion and identifying those portions of the 

record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280, 

293 (1996). However, the moving party cannot discharge its initial burden under this rule 

with a conclusory assertion that the non-moving party has no evidence to prove its case; 

the moving party must specifically point to evidence of the type listed in Civ.R. 56(C)

affirmatively demonstrating that the non-moving party has no evidence to support the nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the moving 

party discharges its initial burden, summary judgment is appropriate if the non-moving 

party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts 

showing that a genuine issue exists for trial. Dresher at 293; Vahila at 430; Civ.R. 56(E). 

{¶ 18} Appellants' first, second, and fourth assignments of error are interrelated and 

we address them jointly. Taken together, these three assignments of error assert the Court 

of Claims erred in finding there remained no genuine issues of material fact as to appellants' 

discrimination claims for disparate treatment, hostile work environment, and retaliation.

{¶ 19} Appellants claim DYS and ODRC discriminated against them on the basis of 

their race in violation of R.C. Chapter 4112, subjecting them to disparate treatment.

{¶ 20} R.C. Chapter 4112 governs anti-discrimination actions brought under Ohio 

law. R.C. 4112.02(A) provides that 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 
No. 22AP-272 7

privileges of employment, or any matter directly or indirectly related to employment." R.C. 

4112.99 authorizes civil actions for any violations of R.C. Chapter 4112. Generally, Ohio 

courts look to federal anti-discrimination case law when examining employment 

discrimination cases made under state law. Nelson v. Univ. of Cincinnati, 10th Dist. No. 

16AP-224, 2017-Ohio-514, ¶ 31, citing Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 

175, 2004-Ohio-723, ¶ 15. But see Williams v. Akron, 107 Ohio St.3d 203, 2005-Ohi0-

6268, ¶ 31 (stating Ohio courts are not bound to federal interpretation of analogous 

statutes).

{¶ 21} In order to prevail in an employment discrimination case, a plaintiff must 

prove discriminatory intent through either direct or indirect methods of proof. Ricker v. 

John Deere Ins. Co., 133 Ohio App.3d 759, 766 (10th Dist.1998), citing Mauzy v. Kelly 

Servs., Inc., 75 Ohio St.3d 578, 583 (1996); United States Postal Serv. Bd. of Governors v. 

Aikens, 460 U.S. 711, 714 (1983), fn. 3. Where, as here, a plaintiff seeks to establish 

discriminatory intent through indirect methods of proof, the claim is subject to the burdenshifting analysis promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), 

first adopted by the Supreme Court of Ohio in Plumbers & Steamfitters Joint 

Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192, 197 (1981). A 

plaintiff claiming discrimination in employment through indirect evidence must first 

demonstrate a prima facie case of discrimination. Bowditch v. Mettler Toledo Internatl.,

Inc., 10th Dist. No. 12AP-776, 2013-Ohio-4206, ¶ 15. If a plaintiff establishes a prima facie 

case, the burden of production shifts to the employer to articulate some legitimate nondiscriminatory reason for the challenged action. Id. at ¶ 16. If the employer meets its 

burden of production, a plaintiff must prove by a preponderance of the evidence that the 

employer's legitimate non-discriminatory reason is merely a pretext for unlawful 

discrimination. Id. at ¶ 17.

{¶ 22} A plaintiff establishes a prima facie case of discrimination by showing that he 

or she: (1) is a member of a statutorily protected class, (2) was subjected to an adverse 

employment action, (3) was qualified for the position, and (4) was replaced by a person not 

belonging to the protected class or that the employer treated a similarly situated, nonprotected person more favorably. Moody v. Ohio Dept. of Mental Health & Addiction 

Servs., 10th Dist. No. 21AP-159, 2021-Ohio-4578, ¶ 17; Hall v. Ohio State Univ. College of 

Humanities, 10th Dist. No. 11AP-1068, 2012-Ohio-5036, ¶ 15. Appellants assert they were 
No. 22AP-272 8

subject to adverse employment action both through individual actions and a pattern of 

discrimination during their tenures. The Court of Claims found that summary judgment in 

favor of appellees was warranted because appellants could not demonstrate they were 

treated less favorably than a similarly situated person. 

{¶ 23} 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." Kenner v. Grant/Riverside Med. Care Found., 10th Dist. No. 

15AP-982, 2017-Ohio-1349, ¶ 33, citing Ames v. Ohio Dept. of Rehab. & Corr., 10th Dist. 

No. 14AP-119, 2014-Ohio-4774, ¶ 42. Courts must consider whether the proffered 

individual dealt with the same supervisor, was subject to the same standards, and engaged 

in the same conduct without mitigating or differentiating circumstances that would 

distinguish either their conduct or the employer's treatment of them. Id., citing Mittler v. 

OhioHealth Corp., 10th Dist. No. 12AP-119, 2013-Ohio-1634, ¶ 36. In order to find the 

plaintiff and the proffered individual are similarly situated, the proffered individual's 

conduct must be of " 'comparable seriousness' " to the conduct predicating the plaintiff's 

adverse treatment. Id., quoting Ames at ¶ 43-44. 

{¶ 24} Both Guess and Hinton allege they experienced disparate treatment related 

to their timekeeping and for being excluded from the February 26, 2019 meeting. Hinton 

admits to manually entering his time in the timekeeping system using a time-editor feature 

without obtaining prior authorization. He seeks to compare himself to the white male 

ODRC helpdesk employees who, he alleges, also manually entered their time without facing 

discipline. However, Hinton provides no evidence that the white male ODRC employees

used the time-editor feature to manually enter their time or that they did not have prior 

authorization to manually enter their time. Additionally, Hinton acknowledges that the 

proffered individuals are all ODRC employees while Hinton is a DYS employee. Hinton 

agrees that ODRC has separate disciplinary procedures, and he further agrees he is 

unfamiliar with ODRC's policies related to timekeeping, breaks, and leave time.

{¶ 25} Guess admits she worked overtime without prior authorization. While Guess 

seeks to compare herself to several of the white male ODRC help desk employees who she 

alleges had worked overtime without facing discipline, Guess did not present evidence that 

these other employees worked overtime without prior authorization. Guess acknowledges 
No. 22AP-272 9

these individuals are ODRC employees, not a DYS employee like herself, and she agrees 

that she is unfamiliar with ODRC's separate disciplinary procedures. 

{¶ 26} Guess also points to the investigation into her sick leave balance and alleged 

a male DYS coworker had a similar sick leave balance but did not face investigation. 

However, Guess did not present any evidence related to whether this other employee is a 

protected or non-protected individual. As to the disciplinary procedures related to Guess's 

use of leave time to defend a court action, Guess does not allege that a similarly situated 

non-protected individual engaged in the same conduct and received more favorable

treatment.

{¶ 27} Appellants both allege they were excluded from the February 26, 2019 

meeting because of their race, and they identify the six white male ODRC help desk 

employees as the proffered similarly situated individuals. Appellants agree that all six of 

the white male help desk employees who attended the meeting were ODRC employees, not 

DYS employees like themselves. ODRC and DYS employees are subject to separate 

workplace policies and procedures. 

{¶ 28} Nonetheless, appellants argue they should be deemed similarly situated to 

the proffered individuals because all help desk employees reported to the same supervisor

at the help desk, regardless of whether they worked for ODRC or DYS. However, even 

assuming arguendo that appellants demonstrated a prima facie case of discrimination, such 

a showing does not end the inquiry. Under the McDonnell Douglas burden-shifting 

analysis, the burden then shifts to appellees to demonstrate a legitimate, nondiscriminatory reason for the adverse action. Refaei v. Ohio State Univ. Hosp., 10th Dist. 

No. 10AP-1193, 2011-Ohio-6727, ¶ 13. Appellees' burden is one of production, not 

persuasion. Id. ("defendant need not prove a nondiscriminatory reason for the 

employment action adverse to plaintiff, but need [to] merely articulate a valid rationale")

(Internal citations and quotations omitted.). If the employer meets its burden of 

production, the burden shifts back to the employee to demonstrate that the reason offered 

by the employer is mere pretext for discrimination. Refaei at ¶ 14, citing Boyd v. Ohio Dept. 

of Mental Health, 10th Dist. No. 10AP-906, 2011-Ohio-3596, ¶ 27. To prove the proffered 

reason is pretext for discrimination, the employee must show both that the proffered reason 

was false and that the real reason was discrimination. Id., citing Boyd at ¶ 28, citing St. 

Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 
No. 22AP-272 10

{¶ 29} As to the individual instances of investigation and discipline, appellees assert 

they took such action against appellants because both Hinton and Guess violated DYS 

policies related to their respective conduct. The violation of workplace policies is a 

legitimate, non-discriminatory reason to investigate and/or discipline an employee. See, 

e.g., Tanksley v. Howell, 10th Dist. No. 19AP-504, 2020-Ohio-4278, ¶ 26. Appellants 

admit they engaged in the conduct and admit their conduct violated work rules, and they 

do not offer any evidence demonstrating the proffered reason was false. 

{¶ 30} As to the February 26, 2019 meeting, appellees assert the meeting was held 

to instruct help desk employees how to formally report complaints. Though Cavendish 

initiated the meeting after receiving various informal complaints about appellants' 

workplace conduct, appellants provide no evidence that those complaints were based on 

race. To the extent appellants argue the meeting must have been racially motivated because 

only white males were in attendance, appellants do not support this conclusory allegation 

with any Civ.R. 56 evidence. Love v. Columbus, 10th Dist. No. 20AP-41, 2021-Ohio-3494, 

¶ 27 ("unsubstantiated allegations are insufficient to show pretext"). All the employees at 

the meeting were ODRC employees, and Hinton and Guess both believed at the time of the 

meeting that they were not included because they are DYS employees. Though Thompson, 

an ODRC employee and a minority, also was not at the meeting, she was away from her 

desk at the time Cavendish convened the meeting. Appellees presented evidence that 

Cavendish convened the meeting to explain the incident report procedure to employees 

who may have complaints about their coworkers. This is a legitimate, non-discriminatory 

reason to hold a meeting, and appellants do not offer any evidence demonstrating this 

proffered reason was false.

{¶ 31} Having reviewed the entire record, we agree with the Court of Claims that 

appellants failed to meet their burden to demonstrate there is a genuine issue of material 

fact related to their discrimination claim for disparate treatment. Accordingly, the court 

did not err in granting appellees' motion for summary judgment on the disparate treatment 

claim. 

{¶ 32} Appellants next argue the court erred in granting summary judgment to 

appellees on their claim for hostile work environment.

{¶ 33} 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 
No. 22AP-272 11

class, (2) the harassment was unwelcome, (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. Chapa v. Genpak, LLC, 10th Dist. No. 

12AP-466, 2014-Ohio-897, ¶ 33, citing Zacchaeus v. Mt. Carmel Health Sys., 10th Dist. No. 

01AP-683 (Feb. 5, 2002), citing Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). 

{¶ 34} The third element of a claim for hostile work environment created by racial 

harassment provides the harassment must be based on race. Chapa at ¶ 33. Appellants 

assert appellees enabled a hostile work environment by allowing inappropriate discussions 

and language in the workplace, facilitating racially exclusive meetings, and engaging in 

disparate discipline of minority employees. With respect to appellants' reliance on their 

exclusion from the February 26, 2019 meeting and appellees' alleged disparate discipline 

of minority employees, these same incidents formed the basis of appellants' disparate 

treatment claim. As we explained in our discussion of that claim, appellants could not show 

there remained a genuine issue of fact that either the attendance of the meeting or the 

occasions of discipline were based on race. We similarly conclude under appellants' hostile 

work environment claim that appellants did not provide any evidence demonstrating either 

the February 2019 meeting or their respective disciplinary matters were based on race.

{¶ 35} Appellants' remaining allegation of harassment is the inappropriate 

discussions in the workplace. More specifically, Hinton reported to Wayne Patrick Morgan, 

a human resources representative for DYS, that he had overheard a conversation about 

lynching and another conversation about a movie that Hinton believed depicted black 

people in a negative light. Hinton did not provide details of these conversations or the name 

of the movie. Further, Hinton did not allege these conversations were directed at him and 

instead alleged they occurred within earshot of him. Guess testified at her deposition that 

she overheard a few conversations about the Second Amendment in the context of police 

shootings of black people that had recently been in the news. Guess construed these 

conversations as race-related because she heard ODRC employees state "we still have a 

right to our guns." (Guess Depo. at 172.) Though we note that the conversations Guess 

overheard have a more tenuous connection to race than the conversations Hinton 

overheard, for purposes of summary judgment we will construe the conversations relied on 

by both appellants as at least creating an issue of fact as to whether the alleged harassment 
No. 22AP-272 12

was based on race. The question becomes, then, whether the workplace conversations that 

Hinton and Guess overheard created a working environment that was sufficiently hostile 

to survive appellees' motion for summary judgment. 

{¶ 36} The fourth element of the test for a claim of hostile work environment 

requires a court to determine whether, in considering all the circumstances, the work 

environment was sufficiently hostile. Chapa at ¶ 34, citing Zacchaeus. Factors the court 

must consider include: (1) the frequency of the discriminatory conduct, (2) its severity, 

(3) whether the conduct is physically threatening or humiliating, or whether it is a mere 

offensive utterance, and (4) whether the conduct unreasonably interferes with the 

employee's work performance. Id., citing Zacchaeus, citing Faragher v. Boca Raton, 524 

U.S. 775, 787-88 (1998). The standards for judging hostility are "sufficiently demanding" 

in order to filter out complaints attacking "the ordinary tribulations of the workplace." 

(Internal quotations and citation omitted.) Chapa at ¶ 35. To constitute a change in the 

terms and conditions of employment, the conduct must be extreme. Id., citing Faragher

at 788, and Harter v. Chillicothe Long-Term Care, Inc., 4th Dist. No. 11CA3277, 2012-

Ohio-2464, ¶ 19 ("simple teasing, offhand comments, and isolated incidents (unless 

extremely serious) will not amount to discriminatory changes in the terms and conditions 

of employment"). (Internal quotations and citations omitted.) 

{¶ 37} This court previously considered the question of frequency in Chapa and 

Zacchaeus. The plaintiff in Chapa worked for the defendant-employer for two separate 

stints totaling approximately nine years. He claimed he was routinely called offensive 

names by a particular supervisor; although the plaintiff did not cite specific dates or years, 

he asserted he was "sometimes subjected to racial remarks or statements from [the 

supervisor] on a daily basis." Chapa at ¶ 40. Based on the plaintiff's allegations, we 

concluded the offensive conduct was "indeed somewhat frequent." Id. at ¶ 38. 

Notwithstanding that conclusion, however, the court further held that frequency of 

offensive comments, by itself, was insufficient to sustain a hostile work environment claim. 

Id. at ¶ 41. The plaintiff in Zacchaeus worked for the defendant-employer for 

approximately 50 days. Zacchaeus at 1-2. He claimed that, during his employment, his 

supervisor made comments that were demeaning to his race and national origin. Id. at 2. 

The plaintiff claimed in his deposition that he was subjected to offensive statements "every 

night," but only specifically testified about three offensive statements made during a one-
No. 22AP-272 13

week span. Id. at 6. Despite the plaintiff's general claim of regular harassment, this court 

concluded that the three specific occasions during a one-week span over the course of his 

employment "can be characterized as 'infrequent.' " Id. at 8.

{¶ 38} In this case, the evidence established that Guess worked on the help desk 

approximately seven to eight months, from July 2018 to March 2019, and Hinton worked 

on the help desk approximately four to five months, from October 2018 to March 2019. 

Hinton asserted he overheard two offensive conversations during his time working on the 

help desk. Similarly, Guess testified she overheard a few conversations that she deemed to 

have been race-related when she was working on the help desk, but could not provide 

specific details about when those conversations occurred or the substance of the 

conversations. These few conversations during a four-to-eight-month span are more 

analogous to the "infrequent" offensive conduct that occurred in Zacchaeus than the 

"somewhat frequent" conduct we found in Chapa. Therefore, appellants fail to demonstrate 

the frequency of offensive conduct necessary to establish a hostile work environment claim.

{¶ 39} After considering the frequency of the discriminatory conduct, we now 

consider its severity. While the question of whether conduct is severe or pervasive is often 

a question of fact, this court has specifically held that a trial court appropriately grants 

summary judgment where the alleged conduct is not sufficiently severe or pervasive as a 

matter of law. Chapa at ¶ 68 (summary judgment in favor of employer was appropriate 

where appellant failed to meet the fourth element of a hostile work environment claim 

because he did not demonstrate the alleged conduct created an objectively hostile work 

environment). Considering all the circumstances, we agree with the Court of Claims that 

appellants have not demonstrated circumstances severe enough to constitute harassment 

within the meaning of a hostile work environment claim. The conversations appellants 

overheard, while offensive utterances and in poor taste, were infrequent and did not occur 

regularly. Hinton and Guess alleged they overheard these conversations only a few times

and could not provide specific details about when they occurred or the contents of the 

conversations beyond their general topics. Additionally, the conversations were not 

directed at appellants, and the "second-hand" nature of the comments is relevant to 

determination of their severity. Chapa at ¶ 45, citing Black v. Zaring Homes,Inc., 104 F.3d 

822, 826 (6th Cir.1997) (comments need not be directed at the plaintiff to create a hostile 
No. 22AP-272 14

work environment, but this fact contributes to the conclusion that the conduct was not 

severe enough to substantiate the claim).

{¶ 40} Though appellants alleged the working conditions were so hostile as to force 

them to separate from their employment, this argument only reflects appellants' subjective 

perceptions of the conduct. However, in order for the conduct to be actionable under a 

hostile work environment claim, appellants must also demonstrate the conduct is severe 

and/or pervasive enough to create an objectively hostile or abusive work environment. 

Chapa at ¶ 55, citing Harris at 21-22 (the standard for a hostile work environment claim 

requires the conduct to be both objectively hostile or abusive and subjectively perceived by 

the plaintiff to interfere with the conditions of their employment). The work environment 

is objectively hostile or abusive where it is "an environment that a reasonable person would 

find hostile or abusive." (Internal quotations and citations omitted.) Id. "Mere utterance 

of an * * * epithet which engenders offensive feelings in an employee does not sufficiently 

affect the conditions of employment" to create a hostile work environment. (Internal 

quotations and citations omitted.) Id.

{¶ 41} Here, appellants put forth evidence that they did not get along with their 

ODRC counterparts at the help desk. However, mindful of the stringent standard 

applicable to hostile work environment claims, appellants simply do not allege sufficient 

harassment based on race such that there is a genuine issue of material fact on this claim. 

Based on the Civ.R. 56 evidence presented, the conversations Hinton and Guess overheard 

were infrequent, isolated incidents, and the conversations were not directed at appellants. 

The comments were not physically threatening or sufficiently humiliating to create a hostile 

work environment claim. Appellants failed to demonstrate a genuine issue of fact that the 

alleged conduct was so severe or pervasive as to create an objectively hostile work 

environment. Chapa at ¶ 66 (summary judgment in favor of employer is appropriate even 

where the employee asserts the environment was hostile because under the factual 

circumstances alleged, reasonable minds could come to but one conclusion on the issue as 

the facts are " 'so one-sided that one party must prevail as a matter of law' "), quoting

Ochsmann v. Great Am. Ins. Co., 10th Dist. No. 02AP-1265, 2003-Ohio-4679, ¶ 10. 

Accordingly, we agree with the Court of Claims that appellees are entitled to summary 

judgment on the hostile work environment claim.
No. 22AP-272 15

{¶ 42} Appellants additionally argue the Court of Claims erred in granting summary 

judgment to appellees on Guess's retaliation claim. The court determined the statute of 

limitations operated to bar the claim. Appellants dispute the court's application of a twoyear statute of limitations and argue, instead, that the claim was subject to a six-year statute 

of limitations.

{¶ 43} Under R.C. 4112.02(I), it is an unlawful business practice to discriminate 

against a person because that person has opposed any unlawful discriminatory practice 

defined under R.C. 4112.02. R.C. 4112.99(A) provides that violations of R.C. Chapter 4112

are subject to civil actions for damages. While R.C. 4112.99 does not contain a statute of 

limitations, the Supreme Court has held that R.C. 4112.99 is a remedial statute, subject to 

the six-year statute of limitations under R.C. 2305.07(B) for actions on liability created by 

statute. Cosgrove v. Williamsburg of Cincinnati Mgt. Co., Inc., 70 Ohio St.3d 281, 282 

(1994). Thus, appellants assert Guess's retaliation claim was subject to the six-year statute 

of limitations. 

{¶ 44} Notwithstanding the general holding of Cosgrove, however, this court has 

held that claims under R.C. Chapter 4112 against the state are subject to a two-year statute 

of limitations. Hostacky v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 21AP-349, 2021-

Ohio-4464, ¶ 6. More specifically, the two-year statute of limitations provided in the Court 

of Claims Act for claims against the state applies to claims under R.C. 4112.99. Id.; 

McFadden v. Cleveland State Univ., 10th Dist. No. 06AP-638, 2007-Ohio-298, ¶ 10 ("[T]he 

two-year statute of limitations in R.C. 2743.16 applies to claims such as appellant's that seek 

monetary damages for discrimination against the state."). See also Cargile v. Ohio Dept. 

of Adm. Servs., 10th Dist. No. 11AP-743, 2012-Ohio-2470, ¶ 12 ("[T]he longest limitations 

period applicable to actions in the Court of Claims is two years."); Simmons v. Ohio Rehab. 

Servs. Comm., 10th Dist. No. 09AP-1034, 2010-Ohio-1590, ¶ 6 ("[T]he legislature clearly 

intended for that two-year limitation [contained in R.C. 2743.16] to take precedence over 

all other statutes of limitation in the Revised Code at large."). 

{¶ 45} Here, Guess claims retaliation by state agencies. Therefore, the claim is 

subject to a two-year statute of limitations. The complaint alleged that Guess filed a 

discrimination complaint with OCRC on February 22, 2017. The complaint further alleged 

Guess received a written coaching for attendance and dependability issues five days later 

on February 27, 2017. Guess bases the retaliation claim on the written coaching, asserting 
No. 22AP-272 16

it was issued in retaliation for filing the discrimination claim with OCRC. The complaint in 

this case was filed on February 4, 2021, nearly four years after Guess received the written 

coaching that she alleges was in retaliation for her discrimination claim. Because 

appellants filed the complaint more than two years after the alleged retaliatory act and do 

not assert any tolling of the statute of limitations, the Court of Claims did not err by 

concluding the retaliation claim was time-barred and granting summary judgment in favor 

of appellees on that claim.

{¶ 46} Thus, having determined the Court of Claims did not err in granting summary 

judgment in favor of appellees on all of appellants' claims, we overrule appellants' first, 

second, and fourth assignments of error. 

{¶ 47} In their third assignment of error, appellants argue the Court of Claims erred

in failing to consider the damages appellants suffered as a result of their claims. Through 

this argument, appellants assert the court did not adequately weigh their involuntary 

disability separation as a relevant factor in determining whether a genuine issue of material 

fact existed as to their discrimination claims. According to appellants, the fact that they 

were placed on involuntary disability separation necessarily constitutes proof that they 

suffered disparate treatment and a hostile work environment due to racial harassment. We 

disagree. 

{¶ 48} Appellants bore the burden to overcome the motion for summary judgment 

by pointing to Civ.R. 56 evidence demonstrating the existence of a genuine issue of material 

fact remained. As we explained above, appellants were unable to demonstrate that 

appellees' legitimate, non-discriminatory explanations for the conduct were mere pretext 

or that the alleged harassment was sufficiently severe. Although appellants maintain that 

the alleged workplace racial discrimination ultimately caused them to be placed on 

involuntary disability separation, this position represents appellants' subjective beliefs. 

However, "[w]hether the harassment is sufficiently severe or pervasive uses an objective

standard; that is, a reasonable person in the plaintiff's position, considering all the 

circumstances must think it [is] severe." Ballard v. Community Support Network, 10th 

Dist. No. 10AP-104, 2010-Ohio-4742, ¶ 10, citing Oncale v. Sundowner Offshore Servs. 

Inc., 523 U.S. 75, 80-81 (1998), citing Harris at 23. Here, the court appropriately 

considered the totality of the circumstances in determining appellees were entitled to 

summary judgment. Accordingly, we overrule appellants' third assignment of error. 
No. 22AP-272 17

{¶ 49} In their fifth and final assignment of error, appellants argue the Court of 

Claims failed to address whether the involuntary disability separation constituted an 

adverse employment action. We agree with appellees, however, that whether the 

involuntary disability separation constitutes an adverse employment action is immaterial. 

Demonstration of an adverse employment action is one of the elements of a prima facie 

case of discrimination. Moody at ¶ 17. As we noted above, even assuming arguendo 

appellants could demonstrate all of the elements of a prima facie case of discrimination, 

they nonetheless failed to put forth any evidence that the legitimate, non-discriminatory 

explanations presented by appellees were mere pretext. Accordingly, once the burden 

shifted back to appellants under the McDonnell Douglas framework, appellants were 

unable to carry their burden to show the proffered explanation was pretext. The court did 

not err, therefore, in granting summary judgment to appellees on all claims. Thus, we 

overrule appellants' fifth and final assignment of error. 

{¶ 50} Based on the foregoing reasons, the trial court did not err in granting 

summary judgment in favor of appellees on appellants' discrimination claims. Having 

overruled appellants' five assignments of error, we affirm the judgment of the Court of 

Claims of Ohio.

Judgment affirmed.

SADLER and BEATTY BLUNT, JJ., concur.

BEATTY BLUNT, J., concurring.

{¶ 51} I join the majority's decision in this case, but I feel it is important to 

emphasize that the record strongly suggests failures by both ODRC and DYS in structuring 

and managing the IT Help Desk. The majority correctly concludes that the defendants have 

met their burden to demonstrate that the plaintiffs lack record evidence to support the 

claims of disparate treatment, allowing a hostile work environment, and retaliation. But 

that does not suggest that the defendants are blameless. 

{¶ 52} The majority correctly concludes that the record does not include evidence 

showing that ODRC employees violated ODRC rules or procedures, even though they might

have been deemed to have violated DYS rules and procedures. But it is obvious that the 

lack of a clear chain of agency authority regarding the IT Help Desk created a toxic work 

culture. It is undisputed that ODRC management conducted a meeting with ODRC 
No. 22AP-272 18

employees to inform them of the procedures required to complain about their DYS 

colleagues. And while the optics of holding a meeting only with white male ODRC 

employees about their alleged grievances with two black DYS employees are undoubtedly 

problematic, without more, that incident alone is insufficient to allow this case to proceed 

to a jury. 

{¶ 53} While the plaintiffs have certainly identified a smell, the record lacks the 

evidence to show that smell came from a skunk. I accordingly concur with the majority's 

decision and judgment in this case.

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