[Cite as Mezey v. Ohio Dev. Servs. Agency, 2016-Ohio-8578.]

{¶1} Before the court are objections filed by plaintiff Gail Mezey on October 4, 

2016 to Magistrate Anderson M. Renick’s decision of September 20, 2016. In his 

decision, Magistrate Renick determined that Mezey failed to prove claims of wrongful 

termination in violation of public policy and promissory estoppel after defendant Ohio 

Development Services Agency (ODSA) terminated Mezey’s employment. Mezey 

objects to Magistrate Renick’s factual findings supporting his determination that she did 

not prove her claim of wrongful discharge in violation of public policy and his 

conclusions drawn from the disputed factual findings. She does not object to Magistrate 

Renick’s recommended decision directed to her promissory-estoppel claim. 

{¶2} Under the Ohio Rules of Civil Procedure, in ruling on objections to a 

magistrate’s decision, a court is required to undertake an independent review as to the 

objected matters to determine whether a magistrate has properly determined the factual 

issues and appropriately applied the law. Because the court determines that, upon 

independent review, the magistrate has properly determined the factual issues and 

appropriately applied the law related to Mezey’s claim of wrongful termination in 

violation of public policy, the court concludes that judgment in favor of ODSA should be 

entered. 

GAIL MEZEY 

 Plaintiff 

 v. 

OHIO DEVELOPMENT SERVICES 

AGENCY 

 Defendant 

Case No. 2015-00110 

Judge Patrick M. McGrath 

DECISION 
Case No. 2015-00110 -2- DECISION 

I. Background 

{¶3} Mezey represents that in 2011, after two employees left the Film Bureau, a 

branch of the Ohio Office of Travel and Tourism in what was formerly the Ohio 

Department of Development, she “agreed to come in and work on a temporary, 

‘intermittent’ basis * * * to assist with the transition to new, permanent staff (or until 

senior managers ‘figured out what they wanted to do’ * * *).” (Objections at 2.) 

According to Mezey, she “was asked to go to 40 hours per week” in May 2011, and she 

“later was asked to reduce her hours to 32 per week” in September 2011, but “within a 

few months she was again working 40 hours most weeks because of the workload.” 

(Objections at 3.) Mezey indicates that, after “the first few months of her work at the 

Film Office,” she “began to discuss with each of her successive supervisors and with 

upper management at the agency the question of her claimed status as an ‘intermittent’ 

employee” after she had taken on increased hours and responsibilities. (Objections 

at 7.) Mezey represents that in the summer of 2013 she consulted an attorney who sent 

a demand letter dated June 11, 2013 to ODSA’s director (David Goodman), requesting 

that her employment status be changed to “full-time/permanent” and seeking “a 

measure of back pay” for the period that she had been treated as an intermittent 

employee. (Objections at 9.) Mezey maintains that subsequently she began to receive 

a “chilly reception” from management employees and supervisors. (Objections at 9.) 

According to Mezey, she was told to keep her hours to “approximately 19 per week, or 

1000 per year, in June of 2013” and, except for a week, she complied with the 

instruction. (Objections at 10.) Mezey represents that in August 2013 when she arrived 

at a meeting that she requested, she was “summarily discharged.” (Objections at 10.) 

{¶4} On February 12, 2015, Mezey sued ODSA in this court, asserting three 

“counts”: (1) “Violation of Public Policy,” (2) “Promissory Estoppel,” and (3) “Violation of 

Ohio Law.” The court referred the cause to mediation and, in accordance with Civ.R. 

53, it also appointed Magistrate Anderson Renick without limitation of authority specified 
Case No. 2015-00110 -3- DECISION 

in Civ.R. 53(C). After the court learned that mediation did not resolve the case, ODSA 

moved to dismiss Mezey’s complaint. Magistrate Renick issued an order granting 

ODSA’s motion in part and dismissing Mezey’s third “count”—“Violation of Ohio Law.” 

He ordered the case to be set for trial in the normal course. 

{¶5} The matter proceeded to trial before Magistrate Renick as to Mezey’s claims 

of a “violation of public policy” and “promissory estoppel.” On September 20, 2016, 

Magistrate Renick issued a decision wherein he determined that Mezey failed to 

prove by a preponderance of the evidence her claims of wrongful discharge in violation 

of public policy and promissory estoppel. In his decision, Magistrate Renick 

recommended that judgment be rendered in favor of ODSA. 

{¶6} On October 4, 2016, Mezey filed objections to Magistrate Renick’s decision 

related to his determination of her claim of wrongful discharge in violation of public 

policy. 

{¶7} ODSA has not filed any objections to Magistrate Renick’s decision. 

II. Plaintiff’s Objections to the Magistrate’s Decision 

{¶8} In her objections, Mezey disputes the magistrate’s factual findings pertaining 

to her wrongful discharge in violation of public policy claim. Mezey contends that the 

magistrate “erred in the factual findings that led to his conclusion that Plaintiff had not 

met her burden of proof on this claim.” (Objections at 12.) Mezey “submits that the 

Magistrate erred in concluding that the decision-maker who discharged Ms. Mezey was 

unaware of her having consulted with an attorney and that there were legitimate, nonretaliatory reasons for her termination.” (Objections at 1.) Mezey states: “The Plaintiff 

respectfully submits that these findings are not supported by the clear weight of the 

evidence. To the contrary, the evidence showed that Ms. Tolan was aware of 

Ms. Mezey having sought legal advice and that the stated reasons for her termination 

were inaccurate or actually false.” (Emphasis sic.) (Objections at 11.) 
Case No. 2015-00110 -4- DECISION 

{¶9} In her objections, Mezey asserts: 

a. “First, Ms. Tolan’s direct testimony that she did not know about Ms. Mezey’s 

legal claims is undermined by the contents of a letter from DSA’s own 

counsel.” (Objections at 12.) 

b. “Second, the evidence showed that in fact the stated reasons given by 

Ms. Tolan for discharging Ms. Mezey – that they did not share the same 

‘vision’ for the Film Office and that Ms. Mezey was engaged in ‘kingdom 

building’ by focusing on activities she was interested in rather than the tax 

credit administration – were pretextual. The actual reason therefore must 

have been her consulting with an attorney and attempting to assert legal 

claims relating to her employment.” (Objections at 14.) Mezey claims that 

trial testimony rebuts allegations that she disobeyed instructions about her 

work hours, made unapproved trips, failed to work with other arms of the 

agency, and disseminated poor-quality written materials. 

For purposes of review, the court labels Mezey’s claims as “Objection No. 1,” and 

“Objection No. 2.” 

III. Law and Analysis 

A. Mezey’s objections are timely filed but her objections to the magistrate’s 

factual findings are not supported by a transcript of all the evidence 

submitted to the magistrate relevant to her objections or an affidavit of that 

evidence. 

{¶10} Civ.R. 53(D)(3)(b) pertains to objections to a magistrate’s decision. 

Pursuant to Civ.R. 53(D)(3)(b)(i), “A party may file written objections to a magistrate’s 

decision within fourteen days of the filing of the decision, whether or not the court has 

adopted the decision during that fourteen-day period as permitted by Civ.R. 

53(D)(4)(e)(i). If any party timely files objections, any other party may also file 

objections not later than ten days after the first objections are filed.” Civ.R. 

53(D)(3)(b)(ii) provides, “An objection to a magistrate’s decision shall be specific and 

state with particularity all grounds for objection.” According to Civ.R. 53(D)(3)(b)(iii): 
Case No. 2015-00110 -5- DECISION 

An objection to a factual finding, whether or not specifically designated as 

a finding of fact under Civ.R. 53(D)(3)(a)(ii), shall be supported by a 

transcript of all the evidence submitted to the magistrate relevant to that 

finding or an affidavit of that evidence if a transcript is not available. With 

leave of court, alternative technology or manner of reviewing the relevant 

evidence may be considered. The objecting party shall file the transcript 

or affidavit with the court within thirty days after filing objections unless the 

court extends the time in writing for preparation of the transcript or other 

good cause. If a party files timely objections prior to the date on which a 

transcript is prepared, the party may seek leave of court to supplement the 

objections. 

{¶11} Here, Mezey filed her written objections on October 4, 2016—fourteen 

days after the magistrate issued his decision on September 20, 2016. The court finds 

that Mezey’s written objections are timely filed in accordance with Civ.R. 53(D)(3)(b)(i). 

{¶12} Additionally, the court finds that Mezey has not filed a transcript of all the 

evidence submitted to the magistrate relevant to her challenges to the magistrate’s 

factual findings within thirty days after the filing of her objections. And the court finds 

that Mezey has not sought leave of court to extend the time for the filing of a transcript. 

Neither has Mezey filed an affidavit of the evidence relevant to her challenges to the 

magistrate’s factual findings because a transcript is unavailable within thirty days after 

the filing of her objections. The court further finds that Mezey has not sought leave of 

court related to an alternative technology or manner of reviewing relevant evidence. 

B. Because Mezey has not filed a transcript of all the evidence submitted to 

the magistrate relevant to her objections or an affidavit of that evidence, 

the court is required to accept the magistrate’s factual findings and limit its 

review to the magistrate’s legal conclusions. 

{¶13} Civ.R. 53(D)(4)(d) establishes what a trial court is required to do if a party 

timely files one or more objections. It provides: “If one or more objections to a magistrate’s 

decision are timely filed, the court shall rule on those objections. In ruling on objections, 

the court shall undertake an independent review as to the objected matters to ascertain that 
Case No. 2015-00110 -6- DECISION 

the magistrate has properly determined the factual issues and appropriately applied the 

law. Before so ruling, the court may hear additional evidence but may refuse to do so 

unless the objecting party demonstrates that the party could not, with reasonable diligence, 

have produced that evidence for consideration by the magistrate.” According to Civ.R. 

53(D)(4)(a), a magistrate’s decision “is not effective unless adopted by the court.” 

{¶14} In Siegel v. State, 2015-Ohio-441, 28 N.E.3d 612, ¶ 12 (10th Dist.) the 

Tenth District Court of Appeals discussed the standard that applies to this court’s review 

of a magistrate’s determination, stating: 

“A magistrate is an arm of the court, not a separate judicial entity with 

independent judicial authority and duties.” State ex rel. DeWine v. 

Ashworth, 4th Dist. No. 11CA16, 2012-Ohio-5632, ¶ 38. The Court of 

Claims still must “undertake an independent review as to the objected 

matters to ascertain that the magistrate has properly determined the 

factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d). The 

court retains the ultimate authority and responsibility over the magistrate’s 

findings and rulings. Hartt v. Munobe, 67 Ohio St.3d 3, 5-6, 1993 Ohio 

177, 615 N.E.2d 617 (1993). * * *. 

{¶15} Notably, the Tenth District Court of Appeals has repeatedly determined, 

that if an objecting party fails to submit a transcript or affidavit of evidence, a trial court 

is required to accept a magistrate’s factual findings and limit its review to the 

magistrate’s legal conclusions. See Law Offices of James P. Connors v. Cohn, 10th 

Dist. Franklin No. 08AP-1031, 2009-Ohio-3228, ¶ 23 (“If an objecting party fails to 

submit a transcript or affidavit, the trial court must accept the magistrate’s factual 

findings and limit its review to the magistrate’s legal conclusions”); Ross v. Cockburn, 

10th Dist. Franklin No. 07AP-967, 2008-Ohio-3522, ¶ 5 (“In the absence of a transcript 

or an affidavit, the trial court is required to accept the magistrate’s findings of fact and 

may only examine the legal conclusions drawn from those facts”); Forth v. Gerth, 10th 

Dist. Franklin No. 05AP-576, 2005-Ohio-6619, ¶ 9, quoting Carter v. Le, 10th Dist. 

Franklin No. 05AP-173, 2005-Ohio-6209, at ¶ 11 (“‘In the absence of a transcript, the 
Case No. 2015-00110 -7- DECISION 

trial court is required to accept the magistrate’s findings of fact. Therefore, the trial court 

could examine only the legal conclusions drawn from those facts.’”); Farmers Mkt. 

Drive-In Shopping Centers, Inc. v. Magana, 10th Dist. Franklin No. 06AP-532, 2007-

Ohio-2653, ¶ 27-28. 

{¶16} Other Ohio appellate districts also have determined that, absent a 

transcript or affidavit, a trial court is limited to a review of a magistrate’s conclusions of 

law. See, e.g., Welch v. Prompt Recovery Servs., 9th Dist. Summit No. 27175, 2015-

Ohio-3867, ¶ 10 (“the trial court correctly concluded that it was bound by the 

magistrate’s findings of fact, because Appellants failed to provide a transcript of the 

proceedings before the magistrate, or a proper affidavit in place of a transcript”); Wade 

v. Wade, 113 Ohio App.3d 414, 418, 680 N.E.2d 1305 (11th Dist.1996) (“absent a 

transcript or appropriate affidavit as provided in the rule, a trial court is limited to an 

examination of the referee’s conclusions of law and recommendations, in light of the 

accompanying findings of fact only unless the trial court elects to hold further hearings”). 

{¶17} Mindful of the foregoing law, the court examines Mezey’s objections. 

C. Legal authority exists to support a view that an employer’s termination of 

an employee for retaining legal counsel violates the public policy of Ohio. 

{¶18} In her objections, Mezey does not challenge the magistrate’s conclusion of 

law that discharging an employee for consulting an attorney may serve as a basis for 

the public policy exception to the common law employment-at-will doctrine. See

Objections at 12 (indicating that the magistrate “correctly noted that discharging an 

employee for consulting an attorney may be the basis for * * * a cause of action [for 

wrongful discharge in violation of public policy]”). 

{¶19} Upon review, the court determines that there is authority to support a view 

that under Ohio law an employer’s discharge of an employee for consulting an attorney 

constitutes a cause of action for wrongful discharge in violation of public policy. In 

Simonelli v. Anderson Concrete Co., 99 Ohio App.3d 254, 259, 650 N.E.2d 488 (10th 
Case No. 2015-00110 -8- DECISION 

Dist.1994), finding persuasive the reasoning contained in Thompto v. Coborn’s Inc., 871 

F.Supp. 1097 (N.D.Iowa 1994), the Tenth District Court of Appeals concluded that “the 

act of firing an employee for consulting an attorney could serve as the basis for a public 

policy exception to the common-law employment-at-will doctrine.” And three years later 

the First District Court of Appeals held that “it is repugnant to the public policy of this 

state for employers to terminate employees for exercising their right to consult a lawyer. 

The courthouse door must be open to the people of Ohio, and it is not ajar when 

citizens may be fired for entering.” Chapman v. Adia Servs., 116 Ohio App.3d 534, 544, 

688 N.E.2d 604 (1st Dist.1997). Additionally, a federal district court sitting in Ohio has 

stated: “The Court finds no question that it is against the clear public policy of the state 

of Ohio for an employer to terminate an employee for retaining legal counsel.” Kulick v. 

Ethicon Endo-Surgery, Inc., 803 F.Supp.2d 781, 788-789 (S.D.Ohio 2011), citing 

Simonelli, supra. 

{¶20} Thus, controlling and persuasive authority exists to support the notion that 

an employer’s discharge of an employee for retaining legal counsel violates the public 

policy of Ohio and the act of terminating an employee for consulting an attorney may 

constitute a cause of action for wrongful discharge in violation of public policy. 

D. Mezey challenges the magistrate’s factual findings relative to her claim of 

wrongful discharge in violation of public policy.

{¶21} In his decision, the magistrate determined that, as a general rule, the 

common law doctrine of employment at will governs employment relationships in Ohio. 

After listing the elements of a wrongful-discharge-in-violation-of-public-policy claim, and 

citing to authority for the proposition that it is against Ohio public policy for an employer 

to terminate an employee for retaining legal counsel, Magistrate Renick stated: 

Although plaintiff contends that the termination of her employment 

was motivated by her decision to retain legal counsel, plaintiff failed to 

prove that Director Goodman terminated her position because her 

attorney sent him a letter demanding an appointment to a full-time 
Case No. 2015-00110 -9- DECISION 

position. Furthermore, [Lyn Tolan, Chief of Communications and Policy] 

made the recommendation to terminate plaintiff’s employment and Tolan’s 

testimony that she was not aware that plaintiff had retained legal counsel 

was credible. The evidence shows that the job audit of the Film Office, 

which reviewed both [Pat Barker’s1] and plaintiff’s positions, began before 

the initial demand letter arrived at DSA. Plaintiff represents that the first 

letter to Goodman was sent by regular mail on June 11, 2013, the same 

date that HR department announced the audit of the departments which 

were under Tolan’s direction. (Plaintiff’s Exhibits 22 and 38.) The court 

finds that plaintiff failed to establish that Tolan had any knowledge of 

either the letter or plaintiff’s decision to retain an attorney to address her 

employment status when she recommended the termination of her 

position. 

Tolan explained that she recommended terminating the 

employment of both Barker and plaintiff based upon her assessment that 

they had different ideas for the Film Office and that they did not appear 

interested in “moving forward.” Tolan testified that she became concerned 

that Barker and plaintiff did not want to participate in Tolan’s vision for the 

Film Office. Specifically, Tolan testified that the proposal to raise 

application fees did not line up with the goals of the administration. Tolan 

stated that plaintiff talked to her on multiple occasions about her proposal 

to raise application fees to provide funds for plaintiff’s full-time salary and 

staff. According to Tolan, plaintiff was spending more time on “kingdom 

building” than focusing on tax credit applications. The court notes that 

Tolan’s testimony regarding her emphasis on the tax credit program as 

consistent with the direction she provided to plaintiff in her August 19, 

2013 email. (Plaintiff’s Exhibit 47.) Tolan was also critical of the time and 

expense that was spent on plaintiff’s traveling. Tolan testified that she had 

no doubt that plaintiff was interested in creating a full-time job for herself 

by conducting the activities she was interested in rather than focusing on 

[Ohio Motion Picture Tax Credit] administration. 

The evidence shows that plaintiff had extensive experience in the 

film industry and that she was a capable employee. However, the court is 

convinced that Tolan believed that Barker and plaintiff did not share her 

vision for the Film Office and that they were at least somewhat resistant to 

 1According to the magistrate, Pat Barker was employed by Ohio Development Services Agency 

from October 2010 to October 2013. She initially served as the Assistant Director of Tourism and was 

later promoted to Interim Director of Tourism in June 2011. (Magistrate’s Decision at 2.) 
Case No. 2015-00110 -10- DECISION 

Tolan’s direction. Although plaintiff contends that Tolan’s stated reasons 

for terminating her employment was a “sham,” the court finds that Tolan’s 

testimony regarding her decision to terminate plaintiff’s employment was 

credible. 

The general rule is that the court may not substitute its judgment for 

that of the employer and may not second-guess the business judgments 

of employers regarding personnel decisions. Wissler v. Ohio Dept. of Job 

& Family Servs., 10th Dist. No. 09AP-569, 2010-Ohio-3432, ¶ 27. Based 

upon the testimony and evidence presented at trial, the court concludes 

that defendant had a legitimate overriding business justification for its 

decision to terminate plaintiff's employment. Accordingly, the court finds 

that plaintiff has failed to prove by a preponderance of the evidence her 

claim for wrongful termination in violation of public policy. 

(Emphasis added.) (Magistrate’s Decision at 6-8.) 

1. Objection No. 1 

{¶22} In objection No. 1, Mezey maintains that Lyn Tolan’s direct testimony that 

she did not know about Mezey’s legal claims is undermined by the contents of a letter 

from ODSA’s counsel. (Objections at 12.) By objection No. 1, Mezey takes issue with 

the magistrate’s statement: “Tolan’s testimony that she was not aware that plaintiff had 

retained legal counsel was credible.” (Magistrate’s Decision at 6.) In support, Mezey 

draws the court’s attention to plaintiff’s exhibit No. 59. 

{¶23} Plaintiff’s exhibit No. 59 is a copy of letter dated July 24, 2013 from Diane 

M. Lease, Chief Legal Counsel of ODSA, to Mezey’s counsel, Julie C. Ford, that 

contains the notation “RE: Gail Mezey Employment Status.” In this letter, Lease 

thanked Ford for her understanding in allowing her to review “this issue” and respond to 

Ford’s previous correspondence. With the letter, Lease apparently included enclosures 

such as Mezey’s “Personnel Action,” which supposedly showed that Mezey was 

appointed as an intermittent employee, Mezey’s acceptance letter, and a portion of 

ODSA’s employment handbook. The letter states, “Upon Lyn Tolan assuming 

management of Gail, Lyn spoke with Gail and explained that her hours must be 
Case No. 2015-00110 -11- DECISION 

consistent with the conditions of her employment and management’s direction.” Lease 

informed Ford that “we cannot accommodate the request for permanent employment. 

In the meantime, I would suggest that you review this with Gail so that she fully 

understands the position she maintains at DSA as an intermittent employee who is now 

managed by Ms. Tolan.” The letter indicates that a copy was sent to Director Goodman 

and Lynn Tolan as it contains a notation stating: 

{¶24} cc: Director Goodman 

i. Lyn Tolan 

{¶25} The court determines that plaintiff’s exhibit No. 59—that was admitted into 

evidence—when viewed with plaintiff’s exhibit No. 38 (Mezey’s attorney’s demand letter 

of June 11, 2013)—that was admitted into evidence—calls into question (1) Tolan’s 

apparent testimony that she was not aware that Mezey had retained legal counsel and 

(2) the magistrate’s credibility determination regarding Tolan’s apparent testimony. 

Several points lead to this view: 

c. First, exhibit No. 38 is a demand letter sent by an attorney who, on June 11, 

2013, on behalf of Mezey, wrote to Director Goodman. It is manifest that as 

of June 2013 Mezey had retained legal counsel. 

d. Second, exhibit No. 59 constitutes a July 2013 written response by ODSA to 

Mezey’s attorney’s demand letter. Exhibit No. 59 establishes that a copy of 

Lease’s letter was to be sent to Lyn Tolan as demonstrated by the “cc” 

notation on the letter. It is reasonable to conclude that Tolan received the 

letter. And, as the letter was between two attorneys—one of whom 

represented Mezey—it also is reasonable that Tolan had knowledge that 

Mezey had retained an attorney. 

These circumstances serve to rebut the magistrate’s finding that Mezey failed to 

establish that Tolan did not have knowledge that Mezey had retained legal counsel. 

And they also may call into question the magistrate’s credibility determination about 

Tolan’s apparent trial testimony. 
Case No. 2015-00110 -12- DECISION 

{¶26} However, because Mezey has failed to submit a transcript or affidavit of 

evidence to support her challenge to the magistrate’s factual findings, in accordance 

with precedent of the Tenth District Court of Appeals, the court concludes that it “must 

accept the magistrate’s factual findings and limit its review to the magistrate’s legal 

conclusions.” Law Offices of James P. Connors v. Cohn, 10th Dist. Franklin No. 08AP1031, 2009-Ohio-3228, ¶ 23; see Ross v. Cockburn, 10th Dist. Franklin No. 07AP-967, 

2008-Ohio-3522, ¶ 5; Forth v. Gerth, 10th Dist. Franklin No. 05AP-576, 2005-Ohio6619, ¶ 9; Carter v. Le, 10th Dist. Franklin No. 05AP-173, 2005-Ohio-6209, at ¶ 11; 

Farmers Mkt. Drive-In Shopping Centers, Inc. v. Magana, 10th Dist. Franklin No. 06AP532, 2007-Ohio-2653, ¶ 27-28. 

{¶27} Of significance therefore is (1) whether the magistrate’s conclusion that 

Mezey failed to prove that Director Goodman terminated her position because Mezey’s 

attorney sent him a demand letter and (2) whether ODSA had a legitimate overriding 

business justification for its decision to terminate Mezey’s employment are against the 

manifest weight of the evidence. 

{¶28} In State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), the 

Ohio Supreme Court discussed the concept of weight of the evidence, stating: “Weight 

of the evidence concerns ‘the inclination of the greater amount of credible evidence, 

offered in a trial, to support one side of the issue rather than the other. It indicates 

clearly to the jury that the party having the burden of proof will be entitled to their 

verdict, if, on weighing the evidence in their minds, they shall find the greater amount of 

credible evidence sustains the issue which is to be established before them. Weight is 

not a question of mathematics, but depends on its effect in inducing belief.’ (Emphasis 

added.) Black’s, supra, at 1594.” Since the Ohio Supreme Court issued Thompkins, it 

has recognized that the Thompson standard of review for manifest weight of the 

evidence applies in civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio2179, 972 N.E.2d 517, ¶ 17-23. 
Case No. 2015-00110 -13- DECISION 

{¶29} The court finds that Mezey’s exhibit No. 38 establishes that a copy of 

Mezey’s attorney’s letter of June 2013 was sent to Director Goodman. However, the 

court finds that Mezey’s exhibit No. 38 does not by itself necessarily establish that 

Goodman read the letter, that he based a decision to terminate Mezey’s employment 

because Mezey retained an attorney, or that he based a decision to terminate Mezey’s 

employment because Mezey’s attorney sent a demand letter. Such conclusions hinge 

on an inference based on an inference. Without any other supporting facts—i.e., facts 

supported by a transcript of the evidence submitted to the magistrate—the court 

determines that such a stacking of inferences is ineffective to undermine the 

magistrate’s determination that Mezey “failed to prove that Director Goodman 

terminated her position because her attorney sent him a letter demanding an 

appointment to a full-time position.” (Magistrate’s Decision at 6.) See Hurt v. Charles J. 

Rogers Transp. Co., 164 Ohio St. 329, 130 N.E.2d 820 (1955), paragraph one of the 

syllabus (“An inference based solely and entirely upon another inference, unsupported 

by any additional fact or another inference from other facts, is an inference on an 

inference and may not be indulged in by a jury”). 

{¶30} Additionally, although exhibit No. 59 rebuts the magistrate’s finding that 

Mezey failed to establish that Tolan did not have knowledge that Mezey had retained 

legal counsel, such a rebuttal does not necessarily mean that the magistrate’s 

determination that ODSA had a legitimate overriding business justification for its 

decision to terminate Mezey’s employment is against the manifest weight of the 

evidence. In City of Hilliard v. First Indus., L.P., 165 Ohio App.3d 335, 2005-Ohio-6469, 

846 N.E.2d 559, ¶ 30 (10th Dist.), the Tenth District Court of Appeals explained: “A 

judgment is not against the manifest weight of the evidence merely because 

inconsistent evidence was presented. State v. Raver, Franklin App. No. 02AP-604, 

2003-Ohio-958, at ¶ 21.” And in Raver at ¶ 21, the Tenth District Court of Appeals 

noted: “‘While the jury may take note of the inconsistencies and resolve or discount 
Case No. 2015-00110 -14- DECISION 

them accordingly, see [State v.] DeHass [1967, 10 Ohio St.2d 230], such 

inconsistencies do not render defendant’s conviction against the manifest weight or 

sufficiency of the evidence.’ State v. Nivens (May 28, 1996), Franklin App. No. 95AP1236. A jury, as finder of fact, may believe all, part, or none of a witness’s testimony. 

State v. Antill (1964), 176 Ohio St. 61, 67.” 

{¶31} In this case, the magistrate—as the trier-of-fact as to all of the evidence 

before him—could take note of any inconsistencies raised by plaintiff’s exhibit No. 59—

and resolve or discount the inconsistencies accordingly. 

{¶32} Upon independent review, the court determines that Mezey’s Objection No. 

1 should be overruled. 

2. Objection No. 2 

{¶33} In objection No. 2, Mezey contends that ODSA’s discharge of her was 

based on pretext, citing in support of this contention, among other things, various trial 

testimony. See, e.g., Objections at 14, 15, 16 (“More to the point, Ms. Tolan herself 

equivocated or even backed down from many of these allegations in her trial testimony;” 

“at trial [Tolan] acknowledged that she was Ms. Mezey’s supervisor for only 

approximately three months * * *;” “Both Ms. Mezey and Ms. Barker testified that the 

concept of increasing the tax credit application fees was discussed many times * * *”). 

{¶34} As Mezey has not filed a transcript to support her view of the trial evidence 

or an affidavit of the evidence because a transcript is unavailable, the court finds 

Mezey’s characterization of the trial testimony is less than convincing. Absent a 

transcript of the evidence submitted to the magistrate or affidavit of evidence in relation 

to her claim that ODSA terminated her employment based on pretext, the court 

determines that the magistrate’s findings as stated in his decision at 7 related to Tolan’s 

testimony—namely, that Tolan believed that “Barker and plaintiff did not share her 

vision for the Film Office and that they were at least somewhat resistant to Tolan’s 

direction. * * * [T]he court finds that Tolan testimony regarding her decision to terminate 
Case No. 2015-00110 -15- DECISION 

plaintiff’s employment was credible”—should be adopted. The magistrate was best able 

to view any witnesses and observe their demeanor, gestures and voice inflections, and 

use these observations in weighing the credibility of the testimony offered to him. See 

In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 45 (“It is well 

settled that ‘“[t]he trial judge is best able to view the witnesses and observe their 

demeanor, gestures and voice inflections, and use these observations in weighing the 

credibility of the proffered testimony.’” State v. Amburgey (1987), 33 Ohio St.3d 115, 

117, 515 N.E.2d 925, quoting Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 

80, 10 OBR 408, 461 N.E.2d 1273”). 

{¶35} The court determines that Mezey’s Objection No. 2 is not persuasive. 

IV. Conclusion 

{¶36} Wherefore, upon independent review as to the objected matters, the court 

determines that Mezey’s objections of October 4, 2016 to the magistrate’s decision of 

September 20, 2016 should be overruled. The court finds that the magistrate has 

properly determined the factual issues and appropriately applied the law related to 

Mezey’s claim of wrongful termination in violation of public policy. The court further 

determines that the magistrate’s decision and recommendation should be adopted as its 

own. Judgment should be rendered in favor of ODSA. Court costs should be assessed 

against Mezey. 

 PATRICK M. MCGRATH 

 Judge 
[Cite as Mezey v. Ohio Dev. Servs. Agency, 2016-Ohio-8578.]

{¶37} For the reasons set forth in the decision filed concurrently herewith, upon 

independent review as to the objected matters, the court OVERRULES plaintiff’s 

objections. The court finds that the magistrate has properly determined the factual 

issues and appropriately applied the law. The court adopts the magistrate’s decision 

and recommendation as its own. Judgment is rendered in favor of defendant. Court 

costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this 

judgment and its date of entry upon the journal. 

 PATRICK M. MCGRATH 

 Judge 

cc: 

Julie C. Ford 

111 West First Street, Suite 1100 

Dayton, Ohio 45402-1156 

Lee Ann Rabe 

Randall W. Knutti 

Assistant Attorneys General 

150 East Gay Street, 18th Floor 

Columbus, Ohio 43215-3130 

Filed December 2, 2016 

Sent to S.C. Reporter 1/10/17

GAIL MEZEY 

 Plaintiff 

 v. 

OHIO DEVELOPMENT SERVICES 

AGENCY 

 Defendant 

Case No. 2015-00110 

Judge Patrick M. McGrath 

JUDGMENT ENTRY