[Cite as Putney v. Contract Bldg. Components, 2009-Ohio-6718.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

UNION COUNTY 

 

SHARON PUTNEY, 

 PLAINTIFF-APPELLANT, CASE NO. 14-09-21 

 v. 

CONTRACT BUILDING 

COMPONENTS, ET AL., O P I N I O N 

 DEFENDANTS-APPELLEES. 

 

Appeal from Union County Common Pleas Court 

Trial Court No. 08-CV-0402 

Judgment Affirmed 

Date of Decision: December 21, 2009 

 

APPEARANCES: 

Judith E. Galeano and Merl H. Wayman for Appellant 

Susan C. Rogers and Amanda L. Walls for Appellees 
Case No. 14-09-21 

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SHAW, J.

{¶1} Plaintiff-appellant, Sharon Putney (hereinafter “Putney”), appeals 

the June 17, 2009 judgment of the Common Pleas Court of Union County, Ohio, 

granting summary judgment in favor of the defendants-appellees, Contract 

Building Components, Ltd. (hereinafter “CBC”), and Stark Truss Company, Inc. 

(hereinafter “Stark Truss”), and dismissing her complaint. 

{¶2} The facts relevant to this appeal are as follows. CBC is a 

manufacturer of building components. Stark Truss operates CBC. Putney began 

working at CBC’s Marysville, Ohio, plant in May of 2002, through Stark.1

 

Putney’s title was that of office manager. As office manager, Putney was 

responsible for day-to-day administrative matters, such as maintaining the lumber 

summary and inventory, coordinating personnel data and documents, recording 

trucking logs, and managing the billing by gathering invoices, submitting them for 

payment approval to the plant manager, Jeff Coulter,2

 who was also her direct 

supervisor, and then assuring they were paid. Putney was not responsible for any 

aspect of production, and she did not serve in a supervisory position. 

{¶3} Shortly after her employment began, problems arose with her 

performance. For the next few years, Putney received multiple disciplinary 

actions in the form of written notices and poor performance reviews from Coulter. 

 

1

 Stark Truss also operates another facility in Washington Courthouse, Ohio. 

2

 Coulter is also the plant manager for Stark Truss’ Washington Courthouse facility. 
Case No. 14-09-21 

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Many of the critiques of her performance revolved around her inaccurate record 

keeping and problems with properly invoicing. By June 29, 2005, Putney’s 

performance review reflected a below average performance in every category of 

review from attendance to communication to teamwork. In this review, Coulter 

noted that he had to remind Putney to do tasks and then had to check to see if she 

actually did the tasks. Coulter also noted that Putney was continuing to make 

mistakes in her record keeping and not properly invoicing, including failing to 

invoice $37,000.00 worth of product. 

{¶4} On September 13, 2006, Putney received another written 

disciplinary notice from Coulter. This notice stated: “On Thursday 9-7-06 I 

received 2 invoices from Sharon for approval that did not have our purchase order 

with it. I have asked Sharon for years now to make sure this happens and she fails 

to follow instructions. Poor performance will no longer be tolerated!” This notice 

also provided that the consequence, should the incident be repeated, would 

possibly be a three-day suspension. 

{¶5} Two days later, Putney sent a letter to Mike Dyer, the director of 

human resources for Stark Truss, alleging harassment of her by Coulter. In this 

letter, Putney cited several things that Coulter had said to her to demonstrate what 

she perceived to be a hostile work environment. She further alleged that Coulter’s 
Case No. 14-09-21 

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statements and actions were gender-based and that she feared retaliation. Dyer 

gave this letter to Alice Wehrlin, nka Alice Mize, for investigation. 

{¶6} After speaking with Putney and investigating the complaint, Wehrlin 

determined that the claim was meritless and that the comments by Coulter about 

Putney’s performance were due to her below average performance. As a result, 

Wehrlin offered Putney two hours of additional training with Darlene Merritt, 

Putney’s counterpart at Stark Truss’ facility in Washington Courthouse, Ohio. 

Wehrlin also requested that Putney provide her with copies of any company 

documents relating to other employees that Putney admittedly made. In addition, 

Wehrlin began working with Coulter to ensure that there was no retaliation for 

Putney’s actions and that any disciplinary action taken against Putney in the future 

would be for job performance-related issues only. 

{¶7} Putney did not seek additional training from Darlene Merritt. On 

October 6, 2006, Wehrlin advised Coulter to issue Putney a three-day disciplinary 

suspension for failing to perform two basic requirements of her job as office 

manager, including failing to ensure that CBC was invoiced for what it ordered, 

failing to ensure that CBC received the shipment in full, and failing to include the 

order form, the purchase order, and the bill of lading for the order when she 

submitted the invoice to Coulter. Attached to the written notice of her suspension 

was an invoice from a company called “Mitek” to a company called “84 Lumber” 
Case No. 14-09-21 

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not CBC and/or Stark Truss, as well as e-mail communications between Coulter 

and Putney regarding her work. 

{¶8} The written notice of suspension also noted that Coulter was paying 

another person “to double check [Putney’s] work to avoid the costly consequences 

of her unsatisfactory work. Sharon needs to focus only on her job and stop 

focusing on everyone else.” Further, the stated consequence, should this incident 

be repeated, was “discipline up to and including termination.” Putney was also 

notified that upon returning to work from this suspension that she would be on 

probation for sixty days and that if she failed or refused “to make significant 

improvements, [CBC] reserve[d] the right of immediate termination.” 

{¶9} On October 11, 2006, Putney wrote another letter to Mike Dyer. 

This time the letter expressed disagreement with her suspension and with the 

conclusion reached by Wehrlin regarding her allegations of a hostile work 

environment. Putney also included in this letter that the “hostile work 

environment has escalated since my complaint in March, 2006, to OSHA for 

health/safety hazards that were reported due to diesel powered forklifts being used 

in an unventilated building at Contract Building Components.” In addition, 

Putney attached the documents regarding other employees that Wehrlin had 

previously requested that she turn over. Putney asserted that these documents 

supported her position that she was unable to perform her job in a timely and 
Case No. 14-09-21 

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competent manner because other people at CBC were failing to provide her with 

the paperwork and information that she needed to complete her tasks. 

{¶10} Once again, Wehrlin addressed Putney’s complaint and informed 

Putney that her allegations were unfounded. This time Wehrlin specifically 

addressed the documents Putney attached in support of the hostile work 

environment claim and explained why she did not find that they supported 

Putney’s claims. Further, Wehrlin informed Putney that Stark Truss was unaware 

that Putney was the one who reported the company to the Occupational Safety and 

Health Administration (“OSHA”) because OSHA does not reveal this type of 

information. 

{¶11} Upon returning from her suspension, Putney received additional 

training from Darlene Merritt and her performance appeared to improve during her 

probationary period. However, after her probationary period ended, Putney began 

having problems once again. On February 2, 2007, Putney’s employment was 

terminated. The written notice of this termination stated that Putney had failed to 

make a significant improvement in her performance and continued to submit 

invoices without the necessary documentation, continued to inaccurately maintain 

inventory records, and continued to conduct non-job-related activities despite 

being told to cease such behavior. 
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{¶12} On August 5, 2008, Putney filed a complaint, naming CBC and 

Stark Truss as defendants. The complaint alleged three causes of action against 

both defendants: (1) gender discrimination in violation of R.C. 4112 et. seq.; (2) 

wrongful termination in violation of public policy; and (3) retaliation for engaging 

in protected activity in violation of R.C. 4112.02(I). The defendants filed their 

answer to the complaint, and the matter proceeded to discovery. During 

discovery, numerous depositions were taken. On January 30, 2009, the defendants 

filed a motion for summary judgment. Putney filed a memorandum in opposition 

to this motion on February 17, 2009, and the defendants subsequently filed their 

reply brief. 

{¶13} Thereafter, the trial court granted the defendants’ motion for 

summary judgment on May 6, 2009. This judgment was appealed in appellate 

case number 14-09-20, but this Court dismissed this appeal on June 17, 2009, for 

want of jurisdiction because the complaint was not dismissed pursuant to the grant 

of summary judgment. That same day, the trial court issued an entry both granting 

summary judgment in favor of the defendants and dismissing Putney’s complaint. 

{¶14} This appeal followed, and Putney now asserts four assignments of 

error. 

FIRST ASSIGNMENT OF ERROR

THE LOWER COURT ERRED BY CONCLUDING THAT 

APPELLANT FAILED TO ESTABLISH A PRIMA FACIE 
Case No. 14-09-21 

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CASE OF GENDER DISCRIMINATION IN VIOLATION OF 

R.C. 4112.02(A). 

SECOND ASSIGNMENT OF ERROR

THE LOWER COURT ERRED BY CONCLUDING THAT 

APPELLANT FAILED TO ESTABLISH A PRIMA FACIE 

CASE OF RETALIATION IN VIOLATION OF R.C. 

4112.02(I). 

THIRD ASSIGNMENT OF ERROR

THE LOWER COURT IMPROPERLY GRANTED 

SUMMARY JUDGMENT ON APPELLANT’S GENDER 

DISCRIMINATION AND RETALIATION CLAIMS ON AN 

ISSUE THAT WAS NEVER RAISED IN APPELLEE’S 

MOTION FOR SUMMARY JUDGMENT. 

FOURTH ASSIGNMENT OF ERROR

THE LOWER COURT ERRED BY CONCLUDING THAT 

APPELLANT DID NOT MAKE OUT A PRIMA FACIE CASE 

OF WRONGFUL TERMINATION IN VIOLATION OF 

PUBLIC POLICY. 

Summary Judgment Standard 

{¶15} Each of Putney’s four assignments of error challenges the trial 

court’s decision to grant summary judgment in favor of the defendants. An 

appellate court reviews a grant of summary judgment independently, without any 

deference to the trial court. Conley-Slowinski v. Superior Spinning & Stamping 

Co. (1998), 128 Ohio App.3d 360, 363, 714 N.E.2d 991. The standard of review 

for a grant of summary judgment is de novo. Hasenfratz v. Warnement, 3rd Dist. 

No. 1-06-03, 2006-Ohio-2797, citing Lorain Nat’l. Bank v. Saratoga Apts. (1989), 
Case No. 14-09-21 

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61 Ohio App.3d 127, 572 N.E.2d 198. A grant of summary judgment will be 

affirmed only when the requirements of Civ.R. 56(C) are met. This requires the 

moving party to establish: (1) that there are no genuine issues of material fact, (2) 

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

reasonable minds can come to but one conclusion and that conclusion is adverse to 

the non-moving party, said party being entitled to have the evidence construed 

most strongly in his favor. Civ.R. 56(C); see Horton v. Harwick Chem. Corp., 73 

Ohio St.3d 679, 653 N.E.2d 1196, 1995-Ohio-286, paragraph three of the syllabus. 

{¶16} The party moving for summary judgment bears the initial burden of 

identifying the basis for its motion in order to allow the opposing party a 

“meaningful opportunity to respond.” Mitseff v. Wheeler (1988), 38 Ohio St.3d 

112, 526 N.E.2d 798, syllabus. The moving party also bears the burden of 

demonstrating the absence of a genuine issue of material fact as to an essential 

element of the case. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264, 

1996-Ohio-107. Once the moving party demonstrates that he is entitled to 

summary judgment, the burden shifts to the non-moving party to produce evidence 

on any issue which that party bears the burden of production at trial. See Civ.R. 

56(E). In ruling on a summary judgment motion, a court is not permitted to weigh 

evidence or choose among reasonable inferences, rather, the court must evaluate 

evidence, taking all permissible inferences and resolving questions of credibility in 
Case No. 14-09-21 

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favor of the non-moving party. Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7, 

663 N.E.2d 653. Thus, it is within these constructs that we address each of 

Putney’s assignments of error. 

{¶17} For ease of discussion, we elect to first address the third assignment 

of error. 

Third Assignment of Error

{¶18} Putney’s third assignment of error involves the trial court’s 

determination that summary judgment was proper as to the gender-discrimination 

and retaliation claims against CBC and Stark Truss because the defendants 

articulated a legitimate, non-discriminatory reason for terminating her. However, 

Putney asserts that the defendants did not raise this as a basis for summary 

judgment in their motion, and, therefore, she was not provided a meaningful 

opportunity to address this issue. 

{¶19} Putney correctly indicates, as stated in the aforementioned summary 

judgment standard, that “[a] party seeking summary judgment must specifically 

delineate the basis upon which summary judgment is sought in order to allow the 

opposing party a meaningful opportunity to respond.” Mitseff, 38 Ohio St.3d at 

syllabus; see also, State ex rel. Sawicki v. Court of Common Pleas of Lucas Cty., 

121 Ohio St.3d 507, 905 N.E.2d 1192, 2009 -Ohio- 1523, at ¶¶ 26-27. However, 

Putney fails to acknowledge the repeated assertions by CBC and Stark Truss in 
Case No. 14-09-21 

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their motion for summary judgment that Putney was disciplined and her 

employment terminated because of her poor performance. 

{¶20} On page two of their motion, entitled “Introduction”, the defendants 

stated: “Beginning with a mediocre performance review in the year 2003, 

Putney’s performance steadily deteriorated while incidents of Putney’s mistakes 

and missed deadlines mounted until these persistent, documented, and uncorrected 

performance issues culminated in the termination of her employment in February 

of 2007.” On page four of this motion, the defendants stated: “All employment 

actions Stark Truss took with respect to Putney were for legitimate, nondiscriminatory business reasons and were based upon her record of performance 

deficiencies, not her gender[.]” The defendants then delineated Putney’s history 

of unsatisfactory performance and the actions taken by Coulter in the portion of 

their motion entitled, “Factual Background”, and further asserted that Putney was 

terminated because she did not adequately fulfill her duties with her employer. 

(Mot. for Sum. Judg., p. 10.) 

{¶21} Under the “Law & Argument” section of their motion, CBC and 

Stark Truss stated at the beginning of the portion of the motion regarding Putney’s 

gender-discrimination claim that “Stark Truss and CBC disciplined and ultimately 

terminated the employment of Putney because of her persistent refusal or inability 

to perform the requirements of the position of Office Manager, not because she is 
Case No. 14-09-21 

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a female.” (id. at p. 11.) At the beginning of their discussion of Putney’s 

retaliation claim, the defendants stated: “Stark Truss and CBC disciplined and 

ultimately terminated Putney from employment because of her well-documented 

and uncorrected performance issues (which pre-dated her participation in any 

activity protected under Ohio Revised Code (‘ORC’) §4112.02(I) and persisted 

even after her alleged participation occurred), not in retaliation for her 

participation in activity protected by law.” (id. at p. 16.) This same assertion was 

repeated in the portion of the defendants’ motion regarding Putney’s claim for 

unlawful termination in violation of public policy based upon the report she made 

to OSHA. (id. at p. 18.) Further, under this portion, CBC and Stark Truss 

specifically stated: “As has been thoroughly explained throughout this 

memorandum, Putney’s employment was terminated due to her persistent, 

documented, and uncorrected job performance issues.” (id. at p. 22.) 

{¶22} In addition to the multitude of statements by CBC and Stark Truss as 

to the reason for Putney’s disciplines and termination, the defendants also attached 

to their motion, as did Putney in her response to this motion, numerous documents 

evidencing Coulter’s dissatisfaction with Putney’s performance, illustrating where 

the problems were and explaining the future consequences. 

{¶23} In sum, throughout the motion for summary judgment the defendants 

made it abundantly clear that summary judgment in their favor was proper 
Case No. 14-09-21 

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because, inter alia, they had a legitimate, non-discriminatory and non-retaliatory 

reason for terminating her. Thus, Putney’s assertion in this regard is without 

merit, and the third assignment of error is overruled. 

First Assignment of Error

{¶24} In her first assignment of error, Putney maintains that the trial court 

erred in granting summary judgment in favor of the defendants on her claim of 

gender discrimination. Revised Code section 4112.02 provides in relevant part: 

It shall be an unlawful discriminatory practice: 

(A) For any employer, because of the * * * sex * * * 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.

The Ohio Supreme Court has stated that state courts may apply “federal case law 

interpreting Title VII of the Civil Rights Act of 1964 * * * to cases involving 

alleged violations of R.C. Chapter 4112.” Plumbers & Steamfitters Joint 

Apprenticeship Commt. v. Ohio Civil Rights Comm., et al. (1981), 66 Ohio St.2d 

192, 196, 421 N.E.2d 128. Therefore, this Court may look to federal case law in 

addition to state law to determine resolution of this matter. 

{¶25} The United States Supreme Court has held that in order “[t]o 

establish a prima facie case of discrimination, a plaintiff must show: (1) 

membership in a protected class; (2) qualification for the position; (3) an adverse 
Case No. 14-09-21 

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employment action; and (4) replacement by a non-protected person.” McDonnell 

Douglas Corp. v. Green (1973), 411 U.S. 792, 802, 93 S.Ct. 1817. However, “[a] 

plaintiff can also make out a prima facie case by showing, in addition to the first 

three elements, that ‘a comparable non-protected person was treated better.’” 

Mitchell v. Toledo Hosp. (C.A.6, 1992), 964 F.2d 577, 582 (internal citations 

omitted).3

 Under this element, a plaintiff “must produce evidence which at a 

minimum establishes (1) that he was a member of a protected class and (2) that for 

the same or similar conduct he was treated differently than similarly-situated nonminority employees.” Id. at 582-83. 

{¶26} Once a plaintiff establishes his/her prima facie case, the burden then 

shifts to the employer to articulate a legitimate, nondiscriminatory reason for the 

adverse employment action. Texas Dept. of Comm. Affairs v. Burdine (1981), 450 

U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94. “[S]hould the defendant carry this 

burden, the plaintiff must then have an opportunity to prove by a preponderance of 

the evidence that the legitimate reasons offered by the defendant were not the true 

reasons, but were a pretext for discrimination.” Id. 

{¶27} Here, there is no dispute that Putney was a member of the protected 

class, as a female, or that she suffered an adverse employment action, specifically 

 

3

 Putney could have alternatively established her prima facie case by presenting credible, direct evidence of 

discriminatory intent. See Terbovitz v. Fiscal Court of Adair County, Ky. (C.A. 6, 1987), 825 F.2d 111. 

However, she acknowledges that she does not have any such direct evidence and, therefore, we proceed 

solely with the application of the McDonnell Douglas/Burdine formula. 
Case No. 14-09-21 

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that her employment was terminated. In addition, Putney does not dispute that she 

was replaced by another member of the protected class, as Darlene Merritt, a 

female, absorbed Putney’s duties as office manager for the Marysville location. 

The parties’ dispute lies in the two remaining elements: (1) that Putney was 

qualified for the position and (2) that a comparable non-protected person was 

treated better. 

{¶28} When evaluating a plaintiff’s prima facie burden of showing that she 

was qualified for the position, the United States Sixth Circuit Court of Appeals has 

held: 

a court should focus on a plaintiff’s objective qualifications to 

determine whether he or she is qualified for the relevant job. See 

Aka v. Washington Hosp. Ctr. (D.C.Cir., 1998), 156 F.3d 1284, 

1298 (en banc) (noting that “courts traditionally treat 

explanations that rely heavily on subjective considerations with 

caution,” and that “an employer’s asserted strong reliance on 

subjective feelings about the candidates may mask 

discrimination”); MacDonald v. E. Wyo. Mental Health Ctr. 

(C.A.10, 1991), 941 F.2d 1115, 1121 (holding that a plaintiff can 

show that she is qualified by presenting “credible evidence that 

she continued to possess the objective qualifications she held 

when she was hired”). The prima facie burden of showing that a 

plaintiff is qualified can therefore be met by presenting credible 

evidence that his or her qualifications are at least equivalent to 

the minimum objective criteria required for employment in the 

relevant field. Although the specific qualifications will vary 

depending on the job in question, the inquiry should focus on 

criteria such as the plaintiff's education, experience in the 

relevant industry, and demonstrated possession of the required 

general skills. (Emphasis omitted.) 

Wexler v. White’s Fine Furniture, Inc. (C.A.6, 2003), 317 F.3d 564, 575-76. 
Case No. 14-09-21 

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{¶29} Stark Truss and CBC assert that Putney was not qualified for the 

position of office manager because her poor performance over the years 

demonstrated that she was not qualified for the job. However, Wexler requires 

that we consider only the objective criteria for the position rather than the 

employer’s subjective evaluations, which are more properly examined in 

determining whether the employer has provided a legitimate, non-discriminatory 

reason for termination and whether such reason is a mere pre-text. 

{¶30} In examining whether Putney was qualified for the position, the 

evidence before the trial court is devoid of what objective criteria were necessary 

for Putney’s employment as an office manager, such as education, training, etc. 

However, in the documentation submitted by Stark Truss in its motion for 

summary judgment, Coulter and Darlene Merritt provided statements that Putney 

was qualified to perform as the office manager. Specifically, in Merritt’s affidavit, 

she stated that she provided training to Putney on several occasions and “felt that 

Sharon Putney was capable of performing the requirements of the position of 

Office Manager but lacked interest or motivation in the job.” (Emphasis added.) 

(Merritt Aff. at ¶ 7.) Additionally, in Coulter’s February 2, 2007, written notice of 

Putney’s termination, he wrote: “While [Putney] did make some improvement 

during her probationary period she has reverted back to her poor performance 

which demonstrates that Sharon has the ability to do the job but chooses not to do 
Case No. 14-09-21 

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so.” (Emphasis added.) Given these statements by the two people in Stark Truss’ 

employ who were in the best position to determine Putney’s qualifications and in 

construing the evidence in a light most favorable to Putney, we find that Putney 

has satisfied her prima facie burden as to this element. 

{¶31} The next consideration is whether for the same or similar conduct, 

Putney was treated differently than similarly-situated male employees. The Sixth 

Circuit has held that “to be deemed ‘similarly-situated’ in the disciplinary context, 

‘the individuals with whom the plaintiff seeks to compare his/her treatment must 

have dealt with the same supervisor, have been subject to the same standards and 

have engaged in the same conduct without such differentiating or mitigating 

circumstances that would distinguish their conduct or the employer’s treatment of 

them for it.’” Ercegovich v. Goodyear Tire & Rubber Co. (C.A. 6, 1998), 154 

F.3d 344, 352, quoting Mitchell, 964 F.2d at 583. 

{¶32} The court in Ercegovich, however, cautioned courts in future cases 

“that the specific factors discussed in Mitchell are relevant factors in cases arising 

under different circumstances, but [courts] should make an independent 

determination as to the relevancy of a particular aspect of the plaintiff’s 

employment status and that of the non-protected employee.” Id. Accordingly, a 

plaintiff “need not demonstrate an exact correlation with the employee receiving 

more favorable treatment in order for the two to be considered ‘similarly-situated;’ 
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rather, * * * [they] must be similar in ‘all of the relevant aspects.’” Id., quoting 

Pierce v. Commonwealth Life Ins. Co. (C.A.6, 1994), 40 F.3d 796, 802. Such a 

standard protects those employees who occupy “unique” positions, who would 

otherwise be unable to show work-place discrimination, “save in those rare cases 

where the plaintiff produces direct evidence of discrimination.” Ercegovich, 154 

F.3d at 353. 

{¶33} In this case, Putney asserts that she had a unique position at CBC. 

Thus, she bases her gender-discrimination claim on the more favorable treatment 

she alleges that her similarly-situated male co-workers received. We find her 

argument is flawed in two respects. First, while her position as office manager 

was unique at the CBC facility in Marysville, it was not a unique position for Stark 

Truss. In fact, on more than one occasion, Putney was provided training through 

Darlene Merritt. As previously noted, Merritt was Stark Truss’ office manager for 

its Washington Courthouse facility. Merritt had the same responsibilities as 

Putney, simply at another location. Putney acknowledges that Coulter repeatedly 

compared her to Merritt, asked her why she could not perform in the same manner 

as Merritt, and referred her to Merritt for additional training. When confronted by 

Coulter in this regard, the only dissimilarity Putney could articulate was that 

Merritt had been the office manager for a longer period of time. Thus, Putney is 

not in that line of plaintiffs who are in a “unique” position and must find a 
Case No. 14-09-21 

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similarly-situated employee who is not a member of the minority class. Rather, 

Putney has a direct comparison, Merritt, who is a member of the same protected 

class as Putney, a female. As such, Putney cannot make a prima facie case as to 

the fourth element of a gender-discrimination claim. 

{¶34} Second, even assuming arguendo that Putney is in a unique position, 

Putney cannot demonstrate that a similarly-situated male was treated more 

favorably than she. Although Putney attempts to demonstrate that she is similarlysituated to a few of the male employees at CBC because she and these men were 

considered “key” employees at CBC, simply labeling an employee as a “key 

employee” does not render that person similarly-situated. In fact, Putney stated in 

her deposition that “[n]obody else did the same responsibilities[.]” (S. Putney 

Depo., p. 70.) 

{¶35} Putney’s supervisor was Coulter, the plant manager. The evidence 

demonstrates that the only other people who directly reported to Coulter were Bill 

Pressler and Doug Irvine. However, Pressler, as production manager, was a 

supervisor responsible for the production aspect of the business, and Doug Irvine 

was a truss technician, a position also related to the production aspect of the 

business. Putney, on the other hand, was responsible for purely administrative 

matters, and her performance in no way affected production. Additionally, she did 

not have any supervisory authority. Although Pressler was responsible for some 
Case No. 14-09-21 

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of the paperwork that Putney needed regarding employee hours and driver 

mileage, the responsibility for this paperwork was his only similarity to Putney. 

Clearly, other than all three holding important positions in the company, i.e. “key 

positions”, Pressler’s and Irvine’s positions in the company were not similar to 

Putney’s in any relevant aspects. 

{¶36} Further, there was no evidence that Pressler or Irvine were 

performing the various aspects of their jobs in an unsatisfactory manner, other 

than Pressler submitting paperwork on occasion that omitted some information 

from the other workers such as hours and mileage. In fact, there is nothing in the 

record, except for one write-up of Pressler for an OSHA violation, that either man 

was affecting production or the deliveries of products in a negative manner or that 

their performance was below average. 

{¶37} Moreover, the type of paperwork Putney claims a number of other 

employees were not timely giving to her and for which they were not being 

disciplined was but one area of Coulter’s concern of Putney’s performance. As is 

the case with her comparisons to Pressler, the type of paperwork that she 

maintains that she did not timely and accurately receive was but one aspect of her 

administrative function and had little to nothing to do with the majority of her 

performance issues. To the contrary, much of the discipline she received, 

including her ultimate termination, were for submitting invoices without purchase 
Case No. 14-09-21 

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orders, not accurately invoicing items, not ensuring that bills were paid in a timely 

fashion, working on personal matters, not keeping her work area clean and 

organized, submitting invoices for approval that were actually for other 

companies, and neglecting to make required adjustments in her reports. In one 

such discipline, Coulter noted that the company’s credit rating was suffering as a 

result of mishandled billing by Putney. The record is devoid of any evidence that 

the conduct of the male employees with whom Putney compares herself affected 

the company’s credit rating or resulted in incorrect invoicing. 

{¶38} In addition, Putney submitted discipline records of a number of other 

employees to demonstrate her disparate treatment. However, the other employees 

involved were all assigned to production and/or shipping, not the office. 

Administrative matters, including paperwork, were the crux of Putney’s job. 

Production and deliveries of the company’s product were the main responsibilities 

of the other people with whom Putney attempts to compare herself. Further, how 

these employees were in any way similarly-situated to Putney is not demonstrated 

in the record before us. 

{¶39} The issues stated in the documentation of these employees’ 

disciplinary actions were for a variety of things: tardiness, excessive absences, an 

employee who repeatedly did not wear his safety glasses, and an employee who 

was careless on one occasion and broke a light. Another instance cited by Putney 
Case No. 14-09-21 

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was Pressler’s discipline for an OSHA violation of allowing forklifts to be 

operated in unventilated areas. 

{¶40} Putney also references Dan Kinnison’s treatment by Coulter in 

support of her disparate treatment claim. Kinnison, who was the dispatcher for 

deliveries and responsible for gathering information from the drivers, received a 

write-up for having pornography on his computer. However, Kinnison testified in 

his deposition that he disputed his discipline for having pornography because 

others had access to his computer. He further testified that there was never 

pornography on his computer again. Another employee also testified in his 

deposition that Kinnison was found sleeping in his car during working hours. 

However, this employee stated that he did not know whether Kinnison was on his 

break or not at the time he was found sleeping in the car. Kinnison also appears to 

be the person Putney most often had difficulty with in obtaining driver-related 

paperwork. Kinnison was not terminated by Stark Truss. Thus, Putney contends 

that he received better treatment despite his various issues. 

{¶41} Putney was not disciplined for safety concerns, having pornography, 

or sleeping on the job. As previously noted, throughout her nearly five years of 

employment, Putney was given mostly below average reviews in every category: 

attendance, quality commitment, communication, taking initiative, job skills, 

housekeeping, teamwork, and customer satisfaction. She was repeatedly told that 
Case No. 14-09-21 

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she was the office manager and needed to stay on top of all administrative matters, 

including accurately maintaining lumber inventory, logs, and summaries as she 

made repeated mistakes in this regard and tracking down the paperwork she 

needed when the production and/or shipping employees neglected to provide her 

with the necessary documents. 

{¶42} Putney also presented evidence, through the deposition testimony of 

other company employees, that other employees did not receive any disciplinary 

action for making personal phone calls during working hours, using the company 

cell phones to place personal calls, using company vehicles for personal business, 

and using the Internet for personal reasons during working hours, yet she was 

disciplined for handling personal matters during working hours. While others did 

admit to engaging in these non-work-related activities, there is nothing in the 

record to demonstrate that their work suffered because of these things. In 

addition, there is nothing in the record that any of these actions were disruptive, 

unlike the discipline Putney received in August of 2006, wherein Coulter noted 

that she continuously made and received disruptive calls. 

{¶43} Furthermore, Putney’s issues, including these disruptive personal 

calls, were all related to the performance of her job. Nothing in the record 

illustrates that the issues with other employees had directly affected their 

performance, i.e. the actual production and/or shipping of the company’s product. 
Case No. 14-09-21 

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On the other hand, Putney’s issues directly affected whether her tasks were 

completed, when they were completed, and whether they were completed 

accurately. There is also nothing in the record to indicate that anyone else had as 

many performance issues as Putney or that these issues, many of which were 

isolated, lasted for nearly the entire length of their employment, as was Putney’s. 

Thus, Putney cannot make a prima facie case as to the fourth element of her 

gender-discrimination claim based upon being treated differently than male 

employees for same or similar conduct. 

{¶44} However, even assuming arguendo that Putney has satisfied this 

element and can establish a prima facie case for gender discrimination, Stark Truss 

and CBC have articulated a legitimate, non-discriminatory reason for her 

termination, which Putney cannot show is false. As previously noted, throughout 

this litigation, including the motion for summary judgment, Stark Truss and CBC 

have maintained that Putney was disciplined and ultimately terminated due to her 

inability to perform her job in a satisfactory manner, and they have provided 

documentation and affidavits to support this position. This is a legitimate, nondiscriminatory reason for her termination. 

{¶45} Finally, in her deposition, Putney admitted that she had numerous 

performance issues. While she asserts that she could not perform her job because 

others were not giving her paperwork in a timely manner and were giving her 
Case No. 14-09-21 

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incomplete and/or inaccurate paperwork, as we have discussed at length, this 

affected but one portion of her job. This failure by others did not cause Putney to 

submit invoices for approval to Coulter for other companies that were mistakenly 

sent to CBC, to omit purchase orders for invoices, to have a messy and 

disorganized work area, to make and receive disruptive calls, or to have a number 

of the other issues that she had. Thus, the record is devoid of any evidence that 

the stated reason for her termination was false and that the true reason was because 

of her gender. 

{¶46} Accordingly, for all of these reasons, Putney’s first assignment of 

error is overruled. 

Second Assignment of Error

{¶47} In her second assignment of error, Putney contends that the trial 

court improperly granted summary judgment in favor of CBC and Stark Truss on 

her retaliation claim. Revised Code section 4112.02(I) prohibits retaliation and 

states: 

It shall be an unlawful discriminatory practice * * * [f]or any 

person to discriminate in any manner against any other person 

because that person has opposed any unlawful discriminatory 

practice defined in this section or because that person has made 

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

investigation, proceeding, or hearing under sections 4112.01 to 

4112 .07 of the Revised Code. 
Case No. 14-09-21 

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As with gender-discrimination claims, state courts may look to federal case law 

regarding cases involving alleged retaliation. Plumbers & Steamfitters Joint 

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

196, 421 N.E.2d 128. 

{¶48} To establish a prima facie case of retaliation, Putney must 

demonstrate: “(1) that she engaged in protected activity; (2) that the employer 

knew of her exercise of protected rights; (3) that she was the subject of 

[materially] adverse employment action; and (4) that there is a causal link between 

the protected activity and the adverse employment action.” Price v. Matco Tools, 

9th Dist. No. 23583, 2007-Ohio-5116, at ¶ 38, citing Balmer v. HCA, Inc. (C.A.6, 

2005), 423 F.3d 606, 614; see also Burlington Northern & Santa Fe Ry. Co. v. 

White (2006), 548 U.S. 53, 67-68, 126 S.Ct. 2405 (modifying the third element of 

the prima facie case to require a “materially adverse” action rather than an 

“adverse employment action”). 

{¶49} If Putney can establish “a prima facie case of retaliation, the burden 

then shifts to the defendant[s] ‘to articulate a legitimate reason for [their] action.’” 

Bennett v. Roadway Express, Inc. (Aug. 1, 2001), 9th Dist. No. 20317, 2001 WL 

866261, quoting Chandler v. Empire Chem., Inc., Midwest Rubber Custom Mixing 

Div. (1994), 99 Ohio App.3d 396, 402, 650 N.E.2d 950. “If that burden is met, the 

burden then shifts back to the plaintiff ‘to show that the articulated reason was 
Case No. 14-09-21 

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merely a pretext.’” Bennett, supra, quoting Chandler, 99 Ohio App.3d at 402. 

Further, “a reason cannot be proved to be ‘a pretext for discrimination’ unless it is 

shown both that the reason was false, and that discrimination was the real reason.” 

St. Mary’s Honor Ctr. v. Hicks (1993), 509 U.S. 502, 515, 113 S.Ct. 2742. 

{¶50} Putney’s retaliation claim stems from her September 15, 2006 letter 

to Mike Dyer alleging that Coulter had created a hostile work environment in 

violation of company policy and discriminated against her because of her gender. 

The parties do not dispute that Putney engaged in protected activity, that Coulter 

knew of this activity, or that Putney was the subject of an adverse employment 

action. Rather, the dispute between the parties is over the element that there must 

be a causal link between the protected activity and the adverse employment action. 

{¶51} To demonstrate a causal connection between a materially adverse 

action, such as suspension or termination, and the exercise of protected rights, “a 

plaintiff must proffer evidence sufficient to raise the inference that [the] protected 

activity was the likely reason for the adverse action.” Michael v. Caterpillar Fin. 

Servs. Corp. (C.A. 6, 2007), 496 F.3d 584, 596, citing Dixon v. Gonzales (C.A. 6, 

2007), 481 F.3d 324, 333. In other words, “a plaintiff must produce evidence 

which permits the inference that apart from the protected activity, the adverse 

action would not have been taken.” Nguyen v. City of Cleveland (C.A.6, 2000), 

229 F.3d 559, 563. This determination is made with reference to the surrounding 
Case No. 14-09-21 

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circumstances, including “evidence that defendant treated the plaintiff differently 

from similarly situated employees or that the adverse action was taken shortly 

after the plaintiff's exercise of protected rights[.]” Id.; see also Lindsay v. 

Children’s Hospital Medical Center of Akron, 9th Dist. No. 24114, 2009-Ohio1216, at ¶ 13. 

{¶52} Generally, mere temporal proximity between a protected activity and 

a materially adverse action without other indicia of retaliatory conduct is not 

sufficient to establish the causal connection element of a retaliation claim. See 

Michael, 496 F.3d at 596; Tuttle v. Metro. Gov’t of Nashville (C.A. 6, 2007), 474 

F.3d 307, 321; Little v. BP Exploration & Oil Co. (C.A. 6, 2001), 265 F.3d 357, 

363-64; Nguyen, 229 F.3d at 563; Johnson v. University of Cincinnati (C.A. 6, 

2000), 215 F.3d 561, 582-83. “[T]his is particularly true when the evidence 

demonstrates intervening performance concerns.” Nguyen, 229 F.3d at 566-67, 

citing Cooper v. City of North Olmsted (C.A.6, 1986), 795 F.2d 1265, 1272. 

{¶53} However, the Sixth Circuit has recently clarified that, in a small 

subset of cases, temporal proximity alone may be sufficient to establish causality: 

Where an adverse employment action occurs very close in time 

after an employer learns of a protected activity, such temporal 

proximity between the events is significant enough to constitute 

evidence of a causal connection for the purposes of satisfying a 

prima facie case of retaliation. But where some time elapses 

between when the employer learns of a protected activity and 

the subsequent adverse employment action, the employee must 

couple temporal proximity with other evidence of retaliatory 
Case No. 14-09-21 

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conduct to establish causality. Mickey v. Zeidler Tool & Die Co.

(6th Cir. 2008), 516 F.3d 516, 525 (finding temporal proximity 

alone to be sufficient when the defendant fired the plaintiff on 

the same day in which it learned that the plaintiff had filed an 

EEOC complaint); see also Clark County Sch. Dist. v. Breeden, 

532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting 

that some cases have “accept[ed] mere temporal proximity 

between an employer’s knowledge of protected activity and an 

adverse employment action as sufficient evidence of causality” 

but that they have only done so when the temporal proximity is 

“very close”); Singfield v. Akron Metro. Hous. Auth., 389 F.3d 

555, 563 (6th Cir. 2004) (finding that temporal proximity of 

three months was “significant enough to constitute sufficient 

evidence of a causal connection for the purpose of satisfying [the 

plaintiff’s] burden of demonstrating a prima facie case”); 

DiCarlo v. Potter, 358 F.3d 408, 421 (6th Cir. 2004) (“[T]his 

Circuit has embraced the premise that in certain distinct cases 

where temporal proximity between the protected activity and 

the adverse employment action is acutely near in time, that close 

proximity is deemed indirect evidence such as to permit an 

inference of retaliation to arise.”).

Evans v. Prospect Airport Serv., Inc. (C.A. 6, 2008), 286 Fed. Appx. 889, 895. 

Nevertheless, “[e]mployers need not suspend previously contemplated 

employment actions upon learning of protected activity by the employee.” 

Warren v. Ohio Dept. of Pub. Safety (C.A. 6, 2001), 24 Fed. Appx. 259, 266. 

{¶54} Here, Putney relies upon temporal proximity alone. Specifically, she 

points out that she wrote her letter to Dyer on September 15, 2006, and Wehrlin 

and Coulter knew of this shortly thereafter. Three weeks later, on October 6, 

2006, she was suspended for three days and placed on probation. Putney contends 
Case No. 14-09-21 

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that this constitutes indirect evidence of retaliation to support her prima facie case 

as to this element. 

{¶55} However, the facts demonstrate that Putney wrote her letter of 

September 15th two days after receiving a write-up for submitting two invoices to 

Coulter without a purchase order as required. Coulter wrote: “I have asked 

Sharon for years now to make sure this happens and she fails to follow 

instructions. Poor performance will no longer be tolerated!” (Emphasis added.) 

In addition, this evaluation stated that the consequence, if the incident was 

repeated, would possibly be a three-day suspension. According to Wehrlin, she 

advised Coulter to take disciplinary action against Putney on October 6, 2006, 

after Putney committed two serious errors that were basic requirements of her 

position and failed to acquire additional training from Merritt, as was offered to 

her by Wehrlin in a letter to Putney, dated September 21, 2006, regarding the 

results of Wehrlin’s investigation of Putney’s discrimination and hostile work 

environment complaint. 

{¶56} This time Putney had failed to submit the computer generated order 

form, the purchase order, and the bill of lading for an invoice and gave Coulter an 

invoice that was for another company, 84 Lumber. As a result, Coulter suspended 

Putney and placed her on probation. In this write-up, Coulter noted that he was 

paying someone to double check Putney’s work to avoid costly consequences, that 
Case No. 14-09-21 

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Putney was not focusing on her job but was focusing on whether everyone else 

was doing their job, and she was keeping a log of when she believed others were 

not doing their job which resulted in her being unproductive. Putney was warned 

that subsequent issues could result in further discipline, including termination. 

{¶57} Under these circumstances, which are not in dispute, we do not find 

that this case falls within that small subset of cases where temporal proximity 

alone may be sufficient to establish causality. Here, Coulter had decided on 

September 13, 2006, that further performance failures, particularly submitting 

invoices without a purchase order, would result in Putney’s suspension. Thus, he 

made an employment decision prior to Putney’s protected activity. This is 

distinctly different than the rare cases cited by the Sixth Circuit in Evans, where 

temporal proximity alone was sufficient, as the employers in those cases had not 

pre-determined a course of action to take with their employees until after the 

employee engaged in protected activity. 

{¶58} Further, Putney performed poorly for nearly the entire time she was 

employed by Stark Truss. Her issues were repeatedly addressed, and her 

suspension and subsequent termination were for problems she had for years that 

continued despite warnings and progressive discipline. To tie the employer’s 

hands in a case such as this where the employee only engaged in protected activity 

on the immediate heels of receiving notice that her performance issues would no 
Case No. 14-09-21 

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longer be tolerated and would result in suspension is a course this Court will not 

take. Nor will this Court allow temporal proximity alone to suffice when the 

employee is disciplined/terminated for the same problematic performance he/she 

engaged in both prior and subsequent to his/her protected activity without other 

indicia that there is a causal link between the protected activity and the adverse 

employment action. Thus, Putney cannot satisfy her prima facie burden as to the 

causality element. 

{¶59} Once again, even assuming arguendo that Putney could establish a 

prima facie case, the burden then shifts to the defendants to state a legitimate 

reason for her termination. As previously noted in our discussion of the first and 

third assignments of error, Stark Truss and CBC have done so, and Putney cannot 

show that this reason was pre-textual. Therefore, for all of these reasons, the 

second assignment of error is overruled. 

Fourth Assignment of Error

{¶60} Lastly, Putney asserts that the trial court erred in granting summary 

judgment to the defendants on her claim for wrongful termination in violation of 

public policy for filing a complaint with OSHA. In order to establish a claim for 

wrongful termination in violation of public policy, Putney must show: (1) a clear 

public policy existed and was manifested in a state or federal law (the clarity 

element); (2) that dismissing employees under circumstances like those involved 
Case No. 14-09-21 

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in Putney’s dismissal would jeopardize the public policy (the jeopardy element); 

(3) Putney’s dismissal was motivated by conduct related to the public policy (the 

causation element); and (4) the employer lacked an overriding legitimate business 

justification for the dismissal (the overriding justification element). Collins v. 

Rizkana, 73 Ohio St.3d 65, 69-70, 652 N.E.2d 653, 1995-Ohio-135 (citations 

omitted). 

{¶61} As to this issue, the parties do not dispute the first and second 

elements. Rather, Putney asserts that the trial court incorrectly determined that her 

termination was not motivated by conduct related to her reporting an OSHA 

violation and that CBC and Stark Truss had an overriding legitimate business 

justification for her dismissal. 

{¶62} In order to demonstrate the causation element, Putney had to show 

that her dismissal was motivated by the report she made to OSHA. Thus, she must 

first show that the defendants were aware she made a report, when they were 

aware, and that their knowledge motivated their actions. 

{¶63} The parties do not dispute that a report was made to OSHA in late 

March of 2006, regarding the use of gasoline and/or diesel fueled forklifts in 

enclosed areas in the building. In her deposition and affidavit, Putney asserted 

that Coulter confronted her in April of 2006, about whether she was the one who 
Case No. 14-09-21 

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made the report. Although she stated that she told him that she had not made the 

call, she claims that Coulter told her, “I don’t believe you.” 

{¶64} In an effort to corroborate her claim that Coulter knew that she 

contacted OSHA, Putney also points to the deposition of Gerald Spicer, another 

CBC employee. Spicer testified that Coulter asked him if he had made the report, 

and when he responded that he had not done so, Coulter asked if he “knew maybe 

if Sharon had.” Spicer was also asked, “Did Mr. Coulter indicate to you that he 

believed Sharon Putney filed the complaint with OSHA?” Spicer responded, “He 

didn’t come out and say that she did but he had a feeling maybe she might have.” 

When asked what Coulter said that made Spicer believe that Coulter “had a 

feeling,” Spicer was unable to articulate what gave him this impression about 

Coulter’s feelings. 

{¶65} Based on these discussions in April of 2006, Putney maintains that 

Coulter, motivated by his knowledge that she was the complainant, began 

disciplining her more frequently: on July 25, 2006, August 22, 2006, September 

13, 2006 (wherein she was informed that poor performance would no longer be 

tolerated), October 6, 2006 (resulting in her three-day suspension), and February 

7, 2007 (her termination date). She further asserts that this creates a genuine issue 

of material fact that his actions against her were motivated by her complaint to 

OSHA. 
Case No. 14-09-21 

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{¶66} Coulter states in his affidavit that he was unaware that Putney was 

the one who made the report to OSHA until after her employment was terminated 

in February of 2007. In addition, Wehrlin stated in her affidavit that “no one at 

Stark Truss or CBC was aware of the identity of the individual who had made the 

anonymous complaint[,]” prior to Putney’s letter to Mike Dyer on October 11, 

2006, where Putney specifically stated that she was the OSHA complainant. 

{¶67} In this case, Putney’s assertion that Spicer’s deposition testimony 

corroborates her allegation that Coulter told her that he did not believe her when 

she told him that she did not contact OSHA is unfounded. Spicer’s testimony was 

that Coulter “had a feeling” that Putney was the complainant. However, Spicer 

could not provide any explanation for why he thought Coulter “had a feeling” 

other than Coulter asking him if he (Spicer) knew if Putney had made the report. 

Spicer testified that he told Coulter that he did not know if Putney was the 

complainant. The subjective belief by one person about how another person “felt” 

is not corroboration of the other person’s knowledge. It is conjecture. Likewise, 

the fact that Coulter may have questioned Putney about whether she was the one 

who contacted OSHA and did not believe her when she stated that she had not, 

does not establish that he knew she was the OSHA complainant. Again, this is 

more conjecture. Such speculation does not satisfy the requirements of Civ.R. 56 

to defeat summary judgment. 
Case No. 14-09-21 

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{¶68} However, even if Coulter did suspect that Putney was the OSHA 

complainant, Putney does not dispute that any of the issues for which she was 

disciplined in the year 2006 occurred. Further, these were issues for which she 

was previously disciplined and given poor reviews in 2003, 2004, and 2005. Also 

of note is that despite perhaps believing in early April of 2006, that Putney was the 

one who made the report, as Putney claims, Coulter did not discipline her later that 

month, in May, or in June. Rather, he disciplined her for the first time, in July of 

2006, some three months later, for something she actually did and then disciplined 

her in the months that followed for other undisputed issues. 

{¶69} Moreover, Coulter did not choose to even consider suspension for 

Putney’s failures until some five months later in September of 2006, when she was 

warned that such failures would no longer be tolerated. In fact, he did not suspend 

her until she once again committed a critical error in October, some six months 

after he allegedly “knew” she filed the report. In addition, she was given 

additional training and a probationary period to improve her performance and was 

not terminated from her employment until she committed more errors in February, 

2007, ten months after Coulter allegedly “knew” she was the complainant. 

Therefore, even when construing the evidence in a light most favorable to Putney, 

a jury could not reasonably infer from the evidence that Putney’s safety complaint, 
Case No. 14-09-21 

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not her repeated poor performance, motivated her write-ups, suspension, 

probation, and termination. 

{¶70} Putney has also failed to satisfy the fourth prong. As repeatedly 

discussed throughout this opinion, the defendants offered evidence of an 

overriding business justification for Putney’s termination, i.e. below average 

performance. Putney did not produce evidence that the defendants lacked such 

justification. There was no factual dispute that the performance issues leading to 

Putney suspension and termination had actually occurred. Accordingly, Putney 

cannot maintain a wrongful discharge claim as to this element. Therefore, the 

fourth assignment of error is overruled. 

{¶71} For all of these reasons, each of the assignments of error is 

overruled, and the judgment of the Common Pleas Court of Union County, Ohio, 

is affirmed. 

 Judgment Affirmed 

PRESTON, P.J., and WILLAMOWSKI, J., concur. 

/jlr