[Cite as Harris v. OHNH EMP, L.L.C., 2015-Ohio-3212.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

GERALD A. HARRIS 

 Appellant 

 v. 

OHNH EMP, LLC dba WYANT WOODS 

CARE CENTER 

 Appellee 

C.A. No. 27455 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CV 2012-10-5831 

DECISION AND JOURNAL ENTRY

Dated: August 12, 2015 

 

MOORE, Judge. 

{¶1} Plaintiff-Appellant Gerald Harris appeals from the decision of the Summit County 

Court of Common Pleas granting summary judgment to Defendant-Appellee OHNH EMP, LLC 

dba Wyant Woods Care Center (“Wyant Woods”) on Mr. Harris’ complaint. We affirm in part 

and reverse in part. 

I. 

{¶2} Wyant Woods is a skilled nursing and Alzheimer’s special care facility. Mr. 

Harris began working there in December 2011, as the Laundry/Housekeeping Supervisor. This 

was a non-union position. Mr. Harris was paid a salary of $1,760.00 on a biweekly basis, which 

amounted to $22.00 per hour based on a 40-hour work week. While Mr. Harris often worked 45 

to 60 hours a week, he was not paid overtime, as his position was labeled as exempt. 

{¶3} Mr. Harris was in charge of both the laundry and housekeeping divisions of 

Wyant Woods, however, he also was a “working supervisor[,]” meaning that he sometimes was 
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required to help with the manual labor within the departments he managed. The parties dispute 

how much of Mr. Harris’ employment was devoted to manual labor. 

{¶4} When he began his employment with Wyant Woods, the cleanliness of the facility 

was an ongoing issue of concern. Mr. Harris acknowledged that cleanliness issues continued 

throughout the course of his employment. Judy Dennis, the administrator and executive director 

of the facility, indicated that it was a goal of the facility to have the floors stripped and refinished 

over the course of 6 to 8 months. Mr. Harris maintained that there were not enough floor 

technicians to complete the project. 

{¶5} Even though there were still issues with the cleanliness of the facility, Mr. Harris’ 

90-day performance evaluation was positive. Ms. Dennis indicated that “[Mr. Harris] took a 

very challenging job and has done * * * [w]ell with supervising his staff and making 

accountability.” Additionally, the evaluation recommended Mr. Harris’ continued employment. 

{¶6} On April 4, 2012, Mr. Harris slipped and fell while assisting another employee 

with stripping the floor. He sustained injuries to his back, neck, and wrist and filed a workers’ 

compensation claim as a result. Mr. Harris was off work on total disability from April 5, 2012 

to April 6, 2012. When he returned to work he did so with restrictions. Specifically, Mr. Harris 

was not supposed to kneel, squat, use ladders, engage in repetitive motions, or lift items over 20 

pounds. Mr. Harris believed he was permitted to run the floor machines, fold clothes, mop 

floors, empty the trash, vacuum, monitor employees, make his rounds, and do paperwork. He 

indicated he was restricted from doing “heavy work.” When Debra Snyder, the Human 

Resources Manager, found out that Mr. Harris was running the floor machine following his 

accident, she developed a list of transitional duties that he could do under his work restrictions; 
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using the floor machine was not included. Mr. Harris signed the paperwork on May 25, 2012, 

detailing the transitional duties he could perform. 

{¶7} On June 8, 2012, Mr. Harris was called into Ms. Snyder’s office. Also present 

was Judy Dennis, the administrator of Wyant Woods and Mr. Harris’ direct supervisor. Ms. 

Dennis told Mr. Harris that her supervisor was not happy with the progress being made on the 

cleanliness of the building and told him that Wyant Woods had to let him go. 

{¶8} Mr. Harris filed a three-count complaint in October 2012 against Wyant Woods 

alleging that it retaliated against him for pursing a workers’ compensation claim in violation of 

R.C. 4123.90, that it had violated R.C. 4111.03 by failing to pay him overtime, and that it had 

violated R.C. 4111.13 by retaliating against him for making a complaint about its failure to pay 

him overtime. 

{¶9} Wyant Woods filed a motion for summary judgment asserting that it was entitled 

to judgment as a matter of law because Mr. Harris was terminated for performance reasons, that 

he had not complained that he had not been paid overtime, and that he was an exempt employee 

not entitled to be paid overtime. Mr. Harris opposed the motion. The trial court ruled in favor of 

Wyant Woods concluding that, while Mr. Harris had established a prima facie case of workers’ 

compensation retaliation, Wyant Woods set forth a legitimate non-retaliatory reason for 

discharge, and Mr. Harris had failed to demonstrate that Wyant Woods’ legitimate reason was 

pretextual. With respect to overtime compensation, the trial court found that Mr. Harris was an 

exempt employee not entitled to overtime. In so finding, the trial court concluded that Mr. 

Harris’ claim of retaliatory discharge for complaining about Wyant Woods’ failure to pay 

overtime was moot. 

{¶10} Mr. Harris has appealed, raising three assignments of error for our review. 
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II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN 

FAVOR OF WYANT WOODS ON [MR.] HARRIS’ CLAIM FOR 

WORKER[S’] COMPENSATION RETALIATION IN VIOLATION OF R.C. [] 

4123.90 BECAUSE A QUESTION OF FACT REMAINS AS TO WHETHER 

WYANT WOODS’ PROFFERED BUSINESS REASON FOR [MR.] HARRIS’ 

TERMINATION WAS PRETEXT TO HIS WORKER[S’] COMPENSATION 

CLAIM AND HIS WORK RELATED INJURY. 

{¶11} Mr. Harris asserts in his first assignment of error that the trial court erred in 

granting summary judgment to Wyant Woods on his claim for workers’ compensation retaliation 

in violation of R.C. 4123.90. Specifically, Mr. Harris argues that a dispute of fact remains with 

respect to whether Wyant Woods’ proffered reason for terminating him was a pretext. Wyant 

Woods maintains that Mr. Harris failed to establish a prima facie case of R.C. 4123.90 violation, 

and, even if he did, there is no dispute of fact that he was terminated for legitimate business 

reasons. 

{¶12} In reviewing a trial court’s ruling on a motion for summary judgment, this Court 

applies the same standard as the trial court, viewing the facts of the case in the light most 

favorable to the non-moving party and resolving any doubt in favor of the non-moving party. 

Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983). Pursuant to Civ.R. 56(C), 

summary judgment is proper if: 

(1) No genuine issue as to any material fact remains to be litigated; (2) the 

moving party is entitled to judgment as a matter of law; and (3) it appears from 

the evidence that reasonable minds can come to but one conclusion, and viewing 

such evidence most strongly in favor of the party against whom the motion for 

summary judgment is made, that conclusion is adverse to that party. 

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The moving party bears the initial 

burden of informing the trial court of the basis for the motion and pointing to parts of the record 
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that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 

292-93 (1996). Once this burden is satisfied, the non-moving party bears the burden of offering 

specific facts to show a genuine issue for trial. Id. at 293; Civ.R. 56(E). 

{¶13} R.C. 4123.90 provides in relevant part that, “[n]o employer shall discharge, 

demote, reassign, or take any punitive action against any employee because the employee filed a 

claim or instituted, pursued or testified in any proceedings under the workers’ compensation act 

for an injury or occupational disease which occurred in the course of and arising out of his 

employment with that employer.” 

{¶14} “Courts analyze retaliatory-discharge claims under a burden-shifting framework, 

requiring the employee to initially set forth a prima facie case by showing the existence of an onthe-job injury that resulted in a workers’ compensation claim and a causal connection between 

the claim and the employee’s termination.” Rivers v. Cashland, 9th Dist. Summit No. 26373, 

2013-Ohio-1225, ¶ 13, citing Scalia v. Aldi, Inc., 9th Dist. Summit No. 25436, 2011-Ohio-6596, 

¶ 14. A plaintiff can only prevail on his or her claim under R.C. 4123.90 if he or she alleges and 

proves that he or she was fired not because of his or her job-related injuries, but because of his or 

her pursuit of workers’ compensation benefits. Doss v. Hilltop Rental Co., 1st Dist. Hamilton 

No. C-030129, 2003-Ohio-5259, ¶ 34; see also White v. Mt. Carmel Med. Ctr., 150 Ohio App.3d 

316, 2002-Ohio-6446, ¶ 36 (10th Dist.) (“R.C. 4123.90 does not prevent an employer from 

discharging an employee who is unable to perform his or her duties. Employees who have filed 

for workers’ compensation benefits may be discharged for just and lawful reasons. The statute 

protects only against termination in direct response to the filing or pursuit of a workers’ 

compensation claim.”) (Internal quotations and citation omitted.). “The prima facie case in 

claims under R.C. 4123.90 does not present an onerous burden for plaintiffs; it is, indeed, easily 
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met.” (Internal quotations omitted.) Scalia at ¶ 14. “The inference of retaliatory motive may be 

drawn from the surrounding circumstances, including the timing of the discharge relative to the 

protected conduct, whether punitive action was directed toward the employee as a result of the 

claim, a hostile attitude[ ] toward the employee once the claim was filed, disparate treatment of 

the employee relative to others, and requests not to pursue a claim.” (Internal quotations 

omitted.) Id. “Once the plaintiff establishes each element of the prima facie case, the burden 

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

employee.” Rivers at ¶ 13, quoting Scalia at ¶ 14. “If the employer does so, the burden shifts 

back to the plaintiff to demonstrate that the reason offered for the termination is a pretext for 

retaliation.” Rivers at ¶ 13, quoting Scalia at ¶ 14. 

{¶15} To create a question of fact with respect to pretext, the plaintiff must demonstrate 

that the defendant’s proffered reason for firing the plaintiff “(1) had no basis in fact, (2) did not 

actually motivate [the] discharge, or (3) was insufficient to motivate [the] discharge.” King v. 

Jewish Home, 178 Ohio App.3d 387, 2008-Ohio-4724, ¶ 9 (1st Dist.); see also Thompson v. 

Merriman CCRC, Inc., 9th Dist. Summit No. 23229, 2006-Ohio-6008, ¶ 23 (applying the 

foregoing in the context of a R.C. 3721.24 action); Dukes v. Associated Materials, L.L.C., 9th 

Dist. Summit No. 27091, 2014-Ohio-4322, ¶ 21 (applying the foregoing in the context of a R.C. 

4112.02 action). 

The first type of showing consists of evidence that the proffered bases for the 

plaintiff’s discharge never happened and are thus factually false. The third 

showing ordinarily consists of evidence that other employees not in the protected 

class were not fired although they engaged in substantially identical conduct to 

that which the employer contends motivated its discharge of the plaintiff. These 

two types of rebuttals are direct attacks on the credibility of the employer’s 

proffered motivation for firing [the] plaintiff and, if shown, provide an evidentiary 

basis for what the Supreme Court has termed a suspicion of mendacity. In the 

second type of rebuttal, the plaintiff admits that such conduct could motivate 

dismissal. Thus, the plaintiff indirectly attacks the credibility of the proffered 
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explanation by showing, through the sheer weight of circumstantial evidence, that 

an illegal motivation was more likely than the explanation offered by the 

defendant. 

Thompson at ¶ 23. 

{¶16} “Factors taken into consideration include such punitive action as bad performance 

reports surfacing immediately after a workers’ compensation claim was filed, the length of time 

between the filing of a claim and discharge, changes in salary level, hostile attitudes emerging, 

and whether legitimate reasons exist for the discharge.” (Quotations and citations omitted.) 

Herron v. DTJ Ents., Inc., 9th Dist. Summit No. 22796, 2006-Ohio-1040, ¶ 19. 

{¶17} The trial court concluded that Mr. Harris had established a prima facie case of 

workers’ compensation retaliation, that Wyant Woods had articulated a legitimate nondiscriminatory reason for terminating Mr. Harris, but that Mr. Harris had failed to establish the 

existence of a genuine issue of material fact with respect to whether Wyant Woods’ reason was 

actually a pretext. Wyant Woods contests that Mr. Harris met his prima facie case and maintains 

that its basis for terminating Mr. Harris was not a pretext. It does not appear that Mr. Harris 

challenges on appeal the trial court’s finding that Wyant Woods set forth a legitimate nondiscriminatory reason for terminating him. 

{¶18} The parties do not appear to dispute that Mr. Harris provided evidence that he 

suffered an on-the-job injury that resulted in the filing of a workers’ compensation claim on or 

about April 4, 2012. Instead, Wyant Woods disputes the existence of a causal connection 

between Mr. Harris’ filing of a workers’ compensation claim and his termination and whether 

Mr. Harris can establish that Wyant Woods’ articulated reason for terminating Mr. Harris, i.e. 

poor performance and failure to meet deadlines, was a pretext. 
8 

 

{¶19} A little over two months passed between the filing of Mr. Harris’ workers’ 

compensation claim and his termination. Such temporal proximity is not sufficiently close in 

and of itself to establish causation. See Mangino v. W. Res. Fin. Corp., 9th Dist. Wayne No. 11-

CA-0050, 2012-Ohio-3874, ¶ 19-20. It is true that Mr. Harris was terminated shortly after he 

was given his transitional work duties on May 25, 2012, and that that paperwork limited what 

Mr. Harris could do with respect to manual labor. Mr. Harris maintains that his termination 

close in time to the issuance of that document evidences causation. We are not convinced. 

While the temporal proximity might lead to an inference that Wyant Woods terminated Mr. 

Harris for being unable to perform manual labor, such as running the floor machines, we fail to 

see how it leads to an inference that Mr. Harris was terminated for filing a workers’ 

compensation claim. See Doss, 2003-Ohio-5259, at ¶ 34. 

{¶20} Thus, Mr. Harris was required to present additional evidence to establish a causal 

connection. See Mangino at ¶ 19-20. Mr. Harris presented evidence that Wyant Woods failed to 

follow its progressive disciplinary policy guidelines in terminating him. Further, Mr. Harris 

presented evidence that he received negative reviews and criticism following his accident, that he 

had not received prior to his accident. He testified during his deposition that, prior to his 

accident, he did not receive any complaints about the quality of his work. While he 

acknowledged that the cleanliness of the facility was an issue before he started and continued to 

be an issue during his employment, he stated that he “was making progress, considerable 

progress[.]” He “was getting accolades from the administrator and all the employees on how 

good the building looked, it never looked that good in years.” As noted above, Mr. Harris 

received a very positive 90-day review at the end of February 2012 that acknowledged that Mr. 

Harris took on a challenging job, indicated he was meeting expectations, and recommended his 
9 

 

continued employment. According to Mr. Harris, it was only after his injury that he began 

receiving complaints from about his performance. In April 2012, after his injury, Denver 

Fawcett, the Regional Facilities Manager who conducted an annual mock survey and quarterly 

audits at Wyant Woods, began to complain to Mr. Harris that he was not working fast enough. 

Additionally, Ms. Dennis issued some memos in April 2012 after Mr. Harris’ injury that pointed 

out areas that he needed to provide reminders and training to his staff. While Ms. Dennis 

indicated that she did not believe these memos were disciplinary in nature, she did see them as 

“performance review[s], [] because [they were] saying you’re not following what you need to 

do.” Further, Ms. Dennis’ notes from May 2012 indicated that Mr. Harris had not completed 

certain projects on time and that the date to complete the project was being extended until June 

12, 2012. Finally, on June 7, 2012, Mr. Harris’ departments received negative reviews in several 

areas during an audit. 

{¶21} The trial court acknowledged the foregoing negative reviews and performance 

evaluations of Mr. Harris, but improperly found that he was receiving similar negative feedback 

throughout the course of his employment. While there were negative comments concerning Mr. 

Harris’ departments on the January 2012 mock survey, and there were additional joint memos 

issued by Ms. Dennis and Mr. Harris in early February 3, 2012 about areas of concern, the trial 

court failed to acknowledge that Mr. Harris’ 90-day evaluation at the end of February 2012, was 

overwhelmingly positive. It is true that Ms. Snyder averred in her affidavit that management 

personnel had “addressed with Mr. Harris their concerns about his work performance throughout 

his employment[,]” and Ms. Dennis averred that she “continually” brought performance related 

issues to Mr. Harris’ attention. Nonetheless, Mr. Harris denied the same during his deposition. 

He maintained that no one expressed any concerns to him about his performance until after his 
10 

 

injury. Neither the trial court nor Wyant Woods has pointed to any documents or specific 

incidents related to Mr. Harris’ performance that occurred between the positive February 2012 

review and his injury in April 2012. Accordingly, if the evidence is viewed in a light most 

favorable to Mr. Harris, there does appear to be evidence that the amount of negative feedback 

Mr. Harris received, at the very least, increased following his injury and filing of his workers’ 

compensation claim. 

{¶22} Additionally, Mr. Harris submitted his own affidavit averring that on April 19, 

2012, a physician ordered that Mr. Harris undergo an MRI; however, Wyant Woods opposed that 

order. Mr. Harris also testified that he was absent from work June 7, 2012, the day before his 

termination, receiving treatment for muscle spasms related to his injury. Finally, Mr. Harris 

indicated that it was approximately a week before his termination that he retained an attorney to 

represent him. Thus, there was also some evidence from which one could infer a connection 

between Mr. Harris’ pursuit of workers’ compensation benefits and his termination. 

{¶23} Finally, there was evidence that another similarly situated employee, Ray Cooper, 

the maintenance supervisor, received disparate treatment. There was evidence that, prior to Mr. 

Harris working at Wyant Woods, the position of laundry/housekeeping supervisor and 

maintenance supervisor was combined into a single position. When Mr. Harris started, that 

changed, and Mr. Harris was hired as the laundry/housekeeping supervisor and Mr. Cooper was 

hired as the maintenance supervisor. There was evidence that both Ms. Dennis and Mr. Harris 

considered Mr. Cooper’s position to be equal to that of Mr. Harris. Ms. Dennis testified that Mr. 

Cooper had not suffered a workplace injury and thus, had not filed for workers’ compensation. 

Additionally, Ms. Dennis acknowledged that Mr. Cooper had not met all his deadlines, and some 
11 

 

of these failures may have prevented Mr. Harris from completing some of his projects. Ms. 

Dennis also agreed that, despite the foregoing, Mr. Cooper was not terminated. 

{¶24} Wyant Woods argues that Mr. Cooper was not similarly situated to Mr. Harris 

because Mr. Harris failed to prove the absence of mitigating or differentiating circumstances 

surrounding their respective work performance. See Jones v. MTD Consumer Group, Inc., 9th 

Dist. Medina No. 13CA0093-M, 2015-Ohio-1878, ¶ 29 (discussing what is required to be 

similarly situated in the context of a reverse discrimination case). Even assuming this to be true, 

we are mindful that this matter is only at the stage of summary judgment, and the issue before us 

is whether there remains a genuine issue of material fact. Given the statements in the record 

discussing Mr. Cooper as being equal to Mr. Harris, and in light of the other evidence of a causal 

connection, we cannot say that Wyant Woods’ argument is dispositive of the issue. The trial 

court did not err in concluding that Mr. Harris established a prima facie case. 

{¶25} As Mr. Harris has not challenged on appeal the trial court’s finding that Wyant 

Woods set forth a legitimate business reason for terminating Mr. Harris, we will forego detailing 

the evidence of Mr. Harris’ poor performance or failure to meet deadlines. Instead, the 

remainder of our focus will center on whether there remains a genuine issue of material fact as to 

whether Wyant Woods’ stated reason for terminating Mr. Harris was a mere pretext. 

{¶26} Much of the evidence we have discussed above also supports the conclusion that 

there remains an issue of fact with respect to whether Wyant Woods actually terminated Mr. 

Harris for poor work performance. Viewed in a light most favorable to Mr. Harris there are 

several things that trouble this Court about Wyant Woods’ claim, and the trial court’s conclusion, 

that Wyant Woods terminated Mr. Harris for poor work performance and the failure to meet 

deadlines. Wyant Woods maintains that Mr. Harris had a history of unsatisfactory performance 
12 

 

throughout his employment; yet, there is nothing in the record documenting any other discipline 

of Mr. Harris. Moreover, the spaces on his termination sheet to list prior discipline were left 

blank, despite the fact that Ms. Dennis claimed that she and others had provided Mr. Harris with 

coaching on multiple occasions and at least one verbal warning. The termination form 

specifically indicated that verbal discipline should be noted. And while it is true, as the trial 

court pointed out, that the January 2012 mock survey did point to issues in Mr. Harris’ 

departments, it is difficult to infer that those problems would have been unresolved when Mr. 

Harris’ subsequent 90-day evaluation was extremely positive. We note that the trial court, in its 

discussion concerning pretext, failed to acknowledge Mr. Harris’ positive 90-day evaluation and 

consider how that could effect the analysis of the issue. There was evidence that the feedback 

about Mr. Harris’ performance became increasingly negative only after his injury, that Wyant 

Woods refused to approve an MRI for Mr. Harris, and that Mr. Harris was terminated the day 

after he was absent due to receiving treatment for his injury and shortly after retaining an 

attorney. As noted above, neither the trial court nor Wyant Woods has pointed to any documents 

or specific incidents related to Mr. Harris’ performance that occurred between the positive 

February 2012 review and his injury in April 2012. Additionally, there was evidence that Mr. 

Cooper, who was a supervisor like Mr. Harris but did not suffer a workplace injury, failed to 

meet deadlines and was nonetheless not terminated. Given all of the evidence, and this Court’s 

duty to view it in a light most favorable to Mr. Harris, we conclude an issue of fact remains with 

respect to whether Wyant Woods’ stated reason for terminating Mr. Harris was a pretext. 

{¶27} Mr. Harris’ first assignment of error is sustained. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN 

FAVOR OF WYANT WOODS ON [MR.] HARRIS’ CLAIM FOR OVERTIME 
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COMPENSATION PURSUANT TO OHIO R.C. [] 4111.03 BECAUSE BASED 

ON THE EVIDENCE IN THE RECORD, THERE IS A GENUINE ISSUE OF 

MATERIAL FACT AS TO WHETHER [MR.] HARRIS WAS AN EXEMPT 

EMPLOYEE. 

{¶28} Mr. Harris asserts in his second assignment of error that the trial court erred in 

granting summary judgment to Wyant Woods on his claim for a violation of R.C. 4111.03 

because an issue of fact remains with respect to whether he was an exempt employee. We do not 

agree. 

{¶29} R.C. 4111.03(A) provides that “[a]n employer shall pay an employee for overtime 

at a wage rate of one and one-half times the employee’s wage rate for hours worked in excess of 

forty hours in one workweek, in the manner and methods provided in and subject to the 

exemptions of section 7 and section 13 of the ‘Fair Labor Standards Act of 1938,’ 52 Stat. 1060, 

29 U.S.C.A. 207, 213, as amended.” “It is well settled that exemptions from the Fair Labor 

Standards Act are to be narrowly construed.” Weisfeld v. PASCO, Inc., 9th Dist. Summit No. 

26416, 2013-Ohio-1528, ¶ 22, quoting Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295 

(1959). 

{¶30} 29 U.S.C. 213 provides that the overtime compensation provided for in 29 U.S.C. 

207 does not have to be provided to certain exempt employees, including “any employee 

employed in a bona fide executive, administrative, or professional capacity * * *.” 29 U.S.C. 

213(a)(1). Additionally, R.C. 4111.03(D)(3)(d) states that the term “employee” does not include 

an individual “employed in a bona fide executive, administrative or professional capacity * * * .” 

{¶31} The trial court concluded that there was no genuine dispute of material fact that 

Mr. Harris was an exempt employee because he was employed in an executive and 

administrative capacity. As we agree that Mr. Harris was employed in an executive capacity, 
14 

 

and was therefore an exempt employee, we see no reason to examine whether he also met the 

criteria for being employed in an administrative capacity. 

{¶32} The Code of Federal regulations provides that, an “employee employed in a bona 

fide executive capacity” is an employee who is 

(1) Compensated on a salary basis at a rate of not less than $455 per week (or 

$380 per week, if employed in American Samoa by employers other than the 

Federal Government), exclusive of board, lodging or other facilities; 

(2) Whose primary duty is management of the enterprise in which the employee is 

employed or of a customarily recognized department or subdivision thereof; 

(3) Who customarily and regularly directs the work of two or more other 

employees; and 

(4) Who has the authority to hire or fire other employees or whose suggestions 

and recommendations as to the hiring, firing, advancement, promotion or any 

other change of status of other employees are given particular weight. 

29 C.F.R. 541.100(a). 

{¶33} The parties dispute whether Mr. Harris’ primary duty was management. See 29 

C.F.R. 541.100(a)(2). Accordingly, we will limit our focus to the law and evidence related to 

that area. 

Generally, “management” includes, but is not limited to, activities such as 

interviewing, selecting, and training of employees; setting and adjusting their 

rates of pay and hours of work; directing the work of employees; maintaining 

production or sales records for use in supervision or control; appraising 

employees’ productivity and efficiency for the purpose of recommending 

promotions or other changes in status; handling employee complaints and 

grievances; disciplining employees; planning the work; determining the 

techniques to be used; apportioning the work among the employees; determining 

the type of materials, supplies, machinery, equipment or tools to be used or 

merchandise to be bought, stocked and sold; controlling the flow and distribution 

of materials or merchandise and supplies; providing for the safety and security of 

the employees or the property; planning and controlling the budget; and 

monitoring or implementing legal compliance measures. 

29 C.F.R. 541.102. 
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{¶34} 29 C.F.R. 541.106 notes that “[c]oncurrent performance of exempt and 

nonexempt work does not disqualify an employee from the executive exemption if the 

requirements of [] 541.100 are otherwise met.” “Whether an employee meets the requirements 

of [] 541.100 when the employee performs concurrent duties is determined on a case-by-case 

basis and based on the factors set forth in [] 541.700.” Id. 29 C.F.R. 541.700(a) states that, 

“[t]he term ‘primary duty’ means the principal, main, major or most important duty that the 

employee performs. Determination of an employee’s primary duty must be based on all the facts 

in a particular case, with the major emphasis on the character of the employee’s job as a whole.” 

Factors considered in determining what the primary duty of the employee is include, “the relative 

importance of the exempt duties as compared with other types of duties; the amount of time 

spent performing exempt work; the employee’s relative freedom from direct supervision; and the 

relationship between the employee’s salary and the wages paid to other employees for the kind 

of nonexempt work performed by the employee.” Id. The Sixth Circuit has noted that “courts 

cannot rely upon the plaintiff’s or the employer’s description of the plaintiff’s position or 

authority; instead we must look at the plaintiff's actual duties to determine whether she qualifies 

for the executive exemption.” (Emphasis omitted.) (Internal quotations and citation omitted.) 

Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 503 (6th Cir.2007). And while Wyant 

Woods has the burden of establishing every element of the executive exemption test set forth in 

29 C.F.R. 541.100(a), the burden applies to every element, “not every factor under every 

element.” Id. at 505, fn. 6. “At issue in this case is the primary duty element and [Wyant 

Woods] needs to carry its burden only on the primary-duty element as a whole, not on each 

individual factor relevant to that inquiry.” Id. 
16 

 

{¶35} While the percentage of time performing exempt work can “be a useful guide” in 

determining whether exempt work is the primary duty, “[t]ime alone, however, is not the sole 

test * * *.” 29 C.F.R. 541.700(b). “Employees who do not spend more than 50 percent of their 

time performing exempt duties may nonetheless meet the primary duty requirement if the other 

factors support such a conclusion.” Id. 

Thus, for example, assistant managers in a retail establishment who perform 

exempt executive work such as supervising and directing the work of other 

employees, ordering merchandise, managing the budget and authorizing payment 

of bills may have management as their primary duty even if the assistant 

managers spend more than 50 percent of the time performing nonexempt work 

such as running the cash register. However, if such assistant managers are closely 

supervised and earn little more than the nonexempt employees, the assistant 

managers generally would not satisfy the primary duty requirement. 

29 C.F.R. 541.700(c). 

{¶36} Based upon the record before us, there is no dispute of fact that at least some of 

Mr. Harris’ duties were managerial as that term is defined in 29 C.F.R. 541.102. 

{¶37} When Mr. Harris came in each day, he first made sure everyone who was 

scheduled to be at work was present. If someone was not there, he would call and try to get 

someone else to fill in, and if he did not succeed in doing so, he would fill in for that person. Mr. 

Harris was also responsible for keeping track of the attendance of his employees and 

documenting it in the employees’ personnel files as well as scheduling the employees in his 

department. While employees would go to Ms. Snyder to find out how much time they had 

available to take off from work, Mr. Harris would approve the application for his employees to 

take time off. 

{¶38} Mr. Harris was additionally responsible for disciplining his employees for various 

reasons. He also made rounds at the facility to make sure that his employees were doing the 

work that they were assigned and to check on the condition of the rooms and common areas. He 
17 

 

was responsible for ordering supplies and deciding what to order based upon what was needed. 

On occasion, Mr. Harris addressed problems his employees were having that they brought to his 

attention. He also conducted in-services with his staff about various topics related to laundry and 

housekeeping. If the equipment broke down, the employee would report it to him and he would 

contact the vendor to get a replacement. Finally, Mr. Harris was responsible for conducting 

periodic evaluations of his staff and going over the reviews with them. 

{¶39} While Mr. Harris also performed non-managerial tasks, including assisting with 

cleaning the facility, the above discussed tasks have managerial components. See 29 C.F.R. 

541.102. Mr. Harris acknowledged during his deposition that he performed the tasks discussed 

above. 

{¶40} Mr. Harris asserts on appeal that 75 percent of his time was devoted to nonmanagerial tasks.1

 For purposes of summary judgment, we will accept Mr. Harris’ claim as 

being true. While time is certainly a factor to take into account in determining whether Mr. 

Harris’ primary duty was in the realm of management, it is not dispositive. See 29 C.F.R. 

541.700(b). Instead, we consider several factors: “the relative importance of the exempt duties 

as compared with other types of duties; the amount of time spent performing exempt work; the 

employee’s relative freedom from direct supervision; and the relationship between the 

employee’s salary and the wages paid to other employees for the kind of nonexempt work 

performed by the employee.” 29 C.F.R. 541.700(a).

 1

 Mr. Harris in his deposition claimed that up to 90 percent of his work was manual, nonmanagerial work; however, on appeal, it appears he has abandoned that assertion as he solely 

argued that 75 percent of his work was devoted to non-managerial work. We note that Mr. 

Harris also argued in his motion in opposition to summary judgment below that 75 percent of his 

work was non-exempt; it appears that figure was also relied upon by the trial court. 
18 

 

{¶41} Mr. Harris argues that the managerial tasks he performed were “lacking ‘in 

relative importance[,]’” because the floor technicians in his department “did not require 

supervision to perform their work responsibilities.” In considering this first factor, “courts must 

compare the importance of the plaintiff’s managerial duties with the importance of h[is] nonmanagerial duties, keeping in mind the end goal of achieving the overall success of the 

company.” See Thomas, 506 F.3d at 505. Thus, the question is not whether Mr. Harris’ already 

trained employees could do their job without supervision; the question is whether Mr. Harris’ 

managerial tasks are more important to Wyant Woods than the performance of his non-exempt 

tasks involving cleaning the facility. See id. As noted above, Mr. Harris was responsible for 

scheduling his employees, monitoring their attendance, ordering supplies, addressing broken 

equipment, granting time off, disciplining his employees, providing in-services to aid in their 

training, and evaluating their performances. If Mr. Harris failed to perform these managerial 

duties it would be unlikely that the departments could function. See id. (“If Thomas failed to 

perform her nonmanagerial duties, her Speedway station would still function, albeit much less 

effectively. After all, most of us—even if unwillingly—have visited and spent our money at 

filthy gas stations with sparsely stocked shelves. If, however, Thomas failed to perform her 

managerial duties, her Speedway station would not function at all because no one else would 

perform these essential tasks. Surely, a gas station cannot operate if it has not hired any 

employees, has not scheduled any employees to work, or has not trained its employees on 

rudimentary procedures such as operating the register.”). Thus, this factor weighs in favor of 

Mr. Harris being considered an exempt employee. 

{¶42} With respect to the third factor, “the employee’s relative freedom from direct 

supervision[,]” the evidence also supports the conclusion that Mr. Harris’ primary duties were 
19 

 

managerial. See 29 C.F.R. 541.700(a). While Mr. Harris broadly averred that he “had little 

discretion to make decisions” and “received direction for conducting [his] daily work 

responsibilities from [Ms. Dennis] on a daily basis[,]” his statements are conclusory in nature 

and belied by his deposition testimony. During his deposition, with respect to the time period 

between his injury and termination, Mr. Harris stated that he did not talk to Ms. Dennis often. 

He also indicated that he did not have a set work schedule, and that while he had to work at least 

eight hours a day, Monday through Friday, he chose when to come in each day and when to 

leave. He based that decisions on “what was going on that day[.]” In addition, he was 

responsible for deciding when to do rounds of the facility. Mr. Harris did not need permission to 

discipline any of his staff or to order supplies. Mr. Harris was responsible for running the inservices and did not remember his supervisor ever attending the in-services. Finally, Mr. Harris 

was solely responsible for deciding what rating to give his staff on their evaluations. 

{¶43} While Mr. Harris asserts that he had no authority to hire personnel and was 

instructed how to handle a specific employee if she was not cleared to return to work, courts 

have concluded that “[a] plaintiff need not be absolutely free from supervision in order for a 

defendant to demonstrate that she was relatively free from supervision.” Wachenschwanz v. 

Dolgencorp, LLC, S.D.Ohio No. 2:12-CV-1037, 2014 WL 907249, *10 (Mar. 7, 2014), citing 

Thomas, 506 F.3d at 507. Given Mr. Harris’ admissions in his deposition concerning the tasks in 

which he could engage without permission or supervision, we conclude that this factor weighs in 

favor of him being an exempt employee. 

{¶44} With respect to the fourth factor, “the relationship between the employee’s salary 

and the wages paid to other employees for the kind of nonexempt work performed by the 

employee[,]” see 29 C.F.R. 541.700(a), we note that there is little evidence or argument in the 
20 

 

record. From the record it is clear that Mr. Harris’ salary was $1760, paid on a biweekly basis. 

Wyant Woods has not pointed to any evidence in the record detailing the pay of non-exempt 

employees. The record evidences that Mr. Harris was a non-union employee, while all his staff 

were union employees and that, because of that, Mr. Harris was subject to a different employee 

handbook than the union employees. Additionally, Mr. Harris received reimbursement for some 

of his cell phone expenses, whereas the union employees did not. This evidence certainly is not 

overwhelming, particularly in the absence of salary information on Mr. Harris’ employees. 

Accordingly, we are unable to evaluate which side this factor would favor. 

{¶45} Considering all the evidence and the factors in a light most favorable to Mr. 

Harris, we conclude that a trier of fact could only conclude that Mr. Harris’ primary duty was 

managerial. Mr. Harris engaged in numerous exempt tasks that were vital to Wyant Woods’ 

success as a company and he was relatively free from direct supervision. While Mr. Harris may 

have spent more time performing non-exempt tasks, we nonetheless conclude the evidence only 

supports that his primary duty was the performance of exempt tasks. 

{¶46} As this is the only element of the executive exemption test being challenged on 

appeal, we conclude the trial court did not err in granting summary judgment to Wyant Woods 

on Mr. Harris’ claim for overtime compensation as he was employed in an executive capacity. 

Mr. Harris’ second assignment of error is overruled. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN 

FAVOR OF WYANT WOODS ON [MR.] HARRIS’ CLAIM THAT WYANT 

WOODS VIOLATED OHIO R.C. [] 4111.13 BECAUSE THIS CLAIM IS NOT 

MOOT AND THE RECORD DEMONSTRATES A GENUINE ISSUE OF 

MATERIAL FACT AS [TO] WHETHER WYANT WOODS TERMINATED 

[MR.] HARRIS IN RETALIATION FOR HIS COMPLAINT ABOUT NOT 

RECEIVING OVERTIME COMPENSATION. 
21 

 

{¶47} Mr. Harris asserts in his third assignment of error that the trial court erred in 

granting summary judgment on his claim alleging a violation of R.C. 4111.13 because it was not 

moot and because there remained a genuine issue of material fact. Because we agree that the 

trial court erred in finding this claim moot, we conclude the trial court erred in granting summary 

judgment on that basis. 

{¶48} R.C. 4111.13(B) states that 

[n]o employer shall discharge or in any other manner discriminate against any 

employee because the employee has made any complaint to the employee’s 

employer, or to the director, that the employee has not been paid wages in 

accordance with sections 4111.01 to 4111.17 of the Revised Code, or because the 

employee has made any complaint or is about to cause to be instituted any 

proceeding under or related to those sections, or because the employee has 

testified or is about to testify in any proceeding. 

{¶49} The trial court determined the claim was moot because “[Mr. Harris] was properly 

classified as an exempt employee under Ohio wage and hour law[; and therefore,] no retaliation 

claim exists.” Thus, essentially the trial court found that, because Mr. Harris was not entitled to 

overtime compensation, he had no claim under R.C. 4111.13(B). Assuming without deciding 

that a civil cause of action exists under the statute, see R.C. 4111.99(B) (authorizing criminal

penalties for a violation), we see no requirement in the statute that a plaintiff must first be 

entitled to overtime compensation in order for the plaintiff to recover if his or her employer 

terminates him or her for complaining about not receiving overtime compensation. While it may 

be unlikely that Wyant Woods would have discharged Mr. Harris for complaining about

something he was not entitled to receive, it is not outside the realm of possibility. Accordingly, 

we cannot say that this claim is moot. 

{¶50} As the trial court did not pass on any of the issues raised by the parties in their 

motion practice, this Court, as a reviewing court, is not inclined to do so in the first instance. See 
22 

 

Wooster v. Enviro-Tank Clean, Inc., 9th Dist. Wayne No. 13CA0012, 2015-Ohio-1876, ¶ 15. 

Upon remand, the trial court is instructed to consider the issues raised by the parties. To the 

extent Mr. Harris has argued that the trial court erred in finding his claim for a violation of R.C. 

4111.13 moot, we agree. Mr. Harris’ third assignment of error is sustained to that extent. 

III. 

{¶51} We sustain Mr. Harris’ first assignment of error, overrule his second assignment 

of error, and sustain his third assignment of error to the extent he asserts his claim was not moot. 

The matter is remanded to the Summit County Court of Common Pleas for proceedings 

consistent with this opinion. 

Judgment affirmed in part, 

reversed in part, 

and cause remanded. 

 There were reasonable grounds for this appeal. 

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

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

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

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

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

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

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

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

 
23 

 

 Costs taxed equally to both parties. 

 

 CARLA MOORE 

 FOR THE COURT 

HENSAL, P. J. 

WHITMORE, J. 

CONCUR.

APPEARANCES:

JEROME T. LINNEN, Attorney at Law, for Appellant. 

BRIAN J. KELLY, Attorney at Law, for Appellee.