[Cite as Brown v. Corr. Reception Ctr., 2020-Ohio-684.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Alicia Brown, : 

 Plaintiff-Appellant, : 

 No. 19AP-104 

v. : (Ct. of Cl. No. 2018-00021JD)

Correctional Reception Center, : (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on February 27, 2020 

 

On brief: Kemp, Schaeffer & Rowe, Co., LPA, and Erica A. 

Probst, for appellant. Argued: Erica A. Probst.

On brief: Dave Yost, Attorney General, Eric A. Walker and 

Timothy M. Miller, for appellee. Argued: Timothy M. Miller.

 

APPEAL from the Court of Claims of Ohio 

BRUNNER, J. 

{¶ 1} Plaintiff-appellant, Alicia Brown, appeals from a decision of the Court of 

Claims of Ohio entered on February 4, 2019 granting summary judgment against her and 

in favor of defendant-appellee, the Correctional Reception Center ("CRC"), on her claims 

for racial employment discrimination and retaliation. Her appeal is limited, however, to 

her claim for retaliation.1 Because, on de novo review, we find there are genuine issues of 

fact as to each of the disputed elements of Brown's claim for retaliation, we reverse the 

granting of summary judgment against her on that claim and remand for further 

proceedings. 

 

1 It was not clear from her briefs which claims she was appealing. However, during oral argument, counsel for 

Brown clarified that she is not appealing the rulings on her discrimination claim, only the retaliation claim. 
No. 19AP-104 2 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Brown began this case by filing a complaint against CRC for racial 

discrimination and retaliation after she confronted her boss with charges of racism on 

January 26, 2017, which allegedly caused him to immediately fire her. (Jan. 3, 2018 Compl. 

at ¶ 13, 16.) CRC answered, admitting that a confrontation took place in which Brown 

accused her boss, Anthony Ayers, of racism, but CRC denied that she was fired. (Jan. 30, 

2018 Answer at ¶ 16-17.) 

{¶ 3} After the parties conducted discovery, including ten depositions which were 

filed in the trial court and are part of the record,2 CRC moved for summary judgment on 

both of Brown's claims. (Nov. 5, 2018 Mot. for Summ. Jgmt.) CRC argued that Brown was 

never an employee of CRC, but rather, was an employee of a staffing agency, Around the 

Clock Healthcare ("ATC"), which placed her at CRC as an independent contractor. Id. at 4-

8. CRC also argued that while Brown left employment after the disagreement with Ayers, 

Ayers did not actually take steps to fire her and she was not terminated by CRC. Id. at 10-

11. Alternatively, CRC argued that Brown could not point to a similarly situated person not 

of the protected class who received better treatment or who replaced Brown. Id. at 11-13. 

Finally, CRC argued that Brown had not engaged in protected conduct for which CRC could 

have retaliated. Id. at 13-15. In addition to the depositions already on file with the trial 

court, CRC attached affidavits of two of Brown's superiors, Raphael Lilly and Ayers, as well 

as interrogatory answers from Brown. (Lilly Aff., attached to Nov. 5, 2018 Mot. for Summ. 

Jgmt.; Ayers Aff., attached to Nov. 5, 2018 Mot. for Summ. Jgmt.; Mar. 21, 2018 Interrogs., 

attached to Nov. 5, 2018 Mot. for Summ. Jgmt.) 

{¶ 4} In her deposition, Brown testified that she worked as a health information 

technician ("HIT") at CRC under an arrangement with a staffing company, ATC. (May 10, 

2018 Brown Dep. at 24, 28-33.) Her supervisors were Anthony Ayers (white), Robert 

Swackhammer (white), and Raphael Lilly (black). Id. at 51-52. Her last day at CRC was the 

day of her disagreement with Ayers, January 26, 2017. Id. at 58. 

{¶ 5} On that day, Ayers informed her and a nurse, Kristina Gerber, that someone 

had reported witnessing them using foul language and that he wanted them to cease such 

 

2 Exhibits were used extensively in many of the depositions and have been cited extensively in CRC's brief. 

(CRC's Brief at 11-13, 15.) However, with the exception of the exhibits for the depositions of Seese and Wolf, 

no exhibits were filed in the Court of Claims and none are in the record before this Court. 
No. 19AP-104 3 

unprofessional behavior. Id. at 102-04, 107-09, 110-11. After Gerber excused herself from 

Ayers' office, Brown testified that she accused Ayers of harassing her, of racism, and of 

attempting to rid the workplace of black persons. Id. According to Brown, Ayers responded 

by telling her to "get out" or he would "have [her] escorted out of here." Id. at 110-11. Brown 

left the facility at that point before her shift was concluded. Id. at 58. She testified that, as 

she collected her things, she spoke to Swackhammer, telling him that she felt this was 

wrong. Id. at 111. 

{¶ 6} Brown explained that her allegations regarding Ayers were based on a lengthy 

period of interactions with Ayers in which he appeared to excessively criticize her job 

performance relative to her coworkers. Id. at 128-29. She opined that this began after she 

took Lilly's side in a conflict between Lilly and Ayers that involved an internal investigation. 

Id. at 72, 77-79, 116-17. She observed that Ayers seemed to be generally more critical of 

black workers than white workers. Id. at 105. Ayers once remarked to her that he did not 

understand why Lilly who was "stupid" and "black" had been promoted. Id. She testified 

that Ayers and Swackhammer treated two white HITs better than they treated her, but also 

elaborated that those two enjoyed a rapport with Ayers and Swackhammer because they all 

went to bars after work together. Id. at 126-27. Brown denied indicating to anyone that 

she had been planning to leave the job voluntarily anyway. Id. at 112. However, she did 

admit to having written an e-mail to her recruiter at ATC regarding the incident. Id. at 30-

31, 62-63. That e-mail (which was also made an exhibit to Wolf's deposition) reads as 

follows: 

From: [REDACTED] 

Sent: Thursday, January 26, 2017 3:03 PM 

To: Tiffany Wolf [REDACTED] 

Subject: Alicia Brown 

To whom it may concern on this above date 1/26/2017 Mr.Tony 

Ayers said I need to talk to you across the hall so I went to the 

office then the Nurse Christy Gerber was in the room also he 

then stated that I had some complaints about you and Gerber 

that you 2 are dropping the F- bomb then I stated that I am not 

the one doing that that is Gerber then he stated no let's not 

point fingers I reply by saying ok what else i said then he said 

we are being to loud while they are examined intimates and we 

both are talking about each other when ones leaves the room 

and this was our warning next time it would be a right up that's 

all I am saying. Then I asked Mr.Ayers could I speak with him 
No. 19AP-104 4 

alone he said yes. I asked Mr.Ayer why are you nit picking 

about everything I do now I always done my job since I been 

here and I think this is a back lash about what's going on with 

you and Mr. Lilly and you have been harassing me since I had 

to write a report pertaining to that. For instance last week when 

I called your office and spoke with Robert Swackhammer 

telling him that alot of intimates don't have their labs back and 

they couldn't be scheduled and Mr.Ayers was in the 

background yelling she doesn't know what she is doing so 

Robert reply by saying come up to our office which I did so 

Robert started looking through the computer and he said she is 

right. Them Mr.Ayers still continued to search and then replied 

by saying you check all these labs I said yes he then said Um 

and that was it. So I said I wrote a report on you of workplace 

harassment and I planned on leaving today anyway because 

your not going to continue harassing me any more then he 

started yelling with all the intimates in the hallway get your 

stuff and get out now your no longer needed here i said you are 

very unprofessional and you don't like black people working up 

in Medway and everyone black here just leave or you get rid of 

them and then he also stated that's why Mr.Lilly got fined with 

2days and I did not get anything out of that now. He then said 

I am going to report you to the Deputy Warden. Another 

incident Mr.Ayers is upset about he authorized me to log under 

a state work to help them out in ECW the new computer system 

so I was questioned about that and told them Mr.Ayers knew 

because he authorized me to he denied that. Mr.Ayers in my 

opinion is upset about a incident with a HIT(Female) that 

Mr.Ayers got caught feeling on this female Elice and a state 

Nurse reported what she caught them doing and the 2 HIT that 

work in Medbay and Tony Ayers they go out drinking on 

Fridays together so they have a personal relationship which out 

of work. If Mr. Ayers felt that I haven't ever did my job it's never 

been brought to my attention until this report I had to write 

about him. I been there at CRC for 2years and I has always been 

praise about my work from Anthony Ayers until these incident 

with him and Mr.Lilly and other workers. I Spoke with Deputy 

Warden of Oops Fredericks about Mr.Ayers harassing me 2 

weeks ago and he told me to write a report so I did this morning 

at 9:42am I have that report in a incident report I gave it to him 

today. 

(Sic passim.) (Wolf Dep., Ex. A.) 

{¶ 7} Ayers agreed that he was one of Brown's supervisors in the sense that, as he 

and Swackhammer were healthcare administrators at CRC, they had supervisory authority 

over Lilly who, as the assistant healthcare administrator, had supervisory authority over all 
No. 19AP-104 5 

HITs. (July 18, 2018 Ayers Dep. at 6-10.) Yet, Ayers testified that he did not fire Brown 

and, in fact, had never fired a HIT. Id. at 15. He explained that to fire someone he would 

have had to have involved the deputy warden. Id. at 29-30. He admitted, however, that he 

wrote an incident report about Brown regarding a disagreement between them. Id. at 16-

18. According to Ayers, he received a complaint from an unnamed "advanced level 

provider" that Brown and Gerber were yelling, cursing, and being unprofessional. Id. at 

62-63. After confirming the report with the other "advanced level providers" in the area, 

he went to talk to Gerber and Brown and invited them to his office. Id. Gerber promised 

to clean up her language, but Brown denied using inappropriate language and asked to talk 

to him privately. Id. at 63. Gerber left. Id. After Gerber stepped out, Brown began to 

accuse Ayers of harassing her and nit-picking her work, she called him a racist, and accused 

him of trying to get rid of all the black employees. Id. at 16-18, 64-65. She continued yelling 

these accusations as she left the room and began to pack up. Id. at 16-18, 65-66. Ayers 

stated that the reason he completed an incident report was because Brown was yelling these 

allegations as she left his office in full view of inmates. Id. at 17-18. He testified that 

immediately after leaving his office, Brown gathered her belongings and left CRC, thereby 

"abandoning" her job. Id. at 16-18. He maintained that although he filed an incident report 

and notified ATC that Brown had abandoned her job, he never told Brown to leave and took 

no steps to bar her from returning. Id. at 66-67, 70. 

{¶ 8} In connection with the motion for summary judgment, Ayers supplemented 

his testimony with an affidavit. In the affidavit, he repeated his assertions about what 

happened between him and Brown on January 26 and reaffirmed that she was not 

terminated. (Ayers Aff. at ¶ 2-3, attached to Nov. 5, 2018 Mot. for Summ. Jgmt.) Ayers 

specifically recounted the administrative steps that would need to be taken to fire a HIT, 

including the need to get approval from the deputy warden, the requirement that the person 

be escorted out and their badge confiscated for security reasons, the need to communicate 

the termination to building security to effectively prohibit the person from reentering the 

grounds, and the need to inform the staffing company that the HIT would no longer be 

permitted to work at CRC. Id. at ¶ 4. At no time did Ayers take any of those steps with 

respect to Brown. Id. Rather, he swore that she was free to return on her next scheduled 

work day and explain to management why she left her job on January 26, 2017. Id. at ¶ 5. 

He also swore that Gerber, as a nurse and employee of CRC who was in the public employee 
No. 19AP-104 6 

bargaining unit, was not a similarly situated employee and, further, that he was unaware of 

any report Brown may have filed against him in regard to a dispute between him and Lilly. 

Id. at 7-8. 

{¶ 9} In her deposition, Gerber confirmed that she and Brown were called into 

Ayers' office regarding a complaint about foul language. (July 18, 2018 Gerber Dep. at 8-

9.) She said she promised to be more careful about her language in the future and excused 

herself from Ayers' office and headed across the hall, shutting the door behind her. Id. at 

9. She could not remember the exact verbiage, but she heard Brown yelling something to 

the effect of, "seems like all you're trying to do around here is fire black people" or perhaps, 

"get black people in trouble." Id. at 10. Gerber did not report hearing anything Ayers said 

other than that Ayers asked her, as Brown was leaving, if she had heard what Brown said. 

Id.

{¶ 10} Lilly testified that, as an assistant healthcare administrator, he was 

subordinate to Swackhammer and Ayers but held supervisory authority over all HITs 

(including Brown). (July 18, 2018 Lilly Dep. at 6, 10-11.) Lilly stated that when HITs are 

fired for cause, someone at CRC calls the staffing company and they are placed on a banned 

list that prevents them from working at other Ohio Department of Rehabilitation and 

Correction ("ODRC") institutions. Id. at 9-10. He also explained the hiring process for new 

HITs: He would request a new HIT from the staffing company on behalf of CRC, the staffing 

company would send over information about the proposed person for placement, CRC 

would perform a background check, and if the person was not excluded from working at 

CRC by that, they would appear for orientation and begin work. Id. at 11-12. 

{¶ 11} Lilly, a black male, agreed that he had filed reports against Ayers in the past 

for nit-picking his work and opined that Ayers seemed to have an issue with black people. 

Id. at 17-19, 21. He stated that Brown's job performance was good and that he had never 

received any reports about Brown using foul language. Id. at 21-22. He had also heard 

Ayers make off-color remarks about some employees' race or ethnicity. Id. at 45-47. 

Although Lilly was not a witness to the events involving Brown and Ayers on the day Brown 

left CRC, Brown had recounted the events to Lilly after the fact. Id. at 41-42. Lilly recalled 

that Brown said she accused Ayers of racism and Ayers responded by telling her to get out, 

whereupon she left in order to avoid being escorted out. Id. Lilly stated that Ayers also 
No. 19AP-104 7 

recounted the event to him, asking him to request a new HIT from the staffing company 

because, when he talked to Brown about her job performance, she called him a racist and 

then left. Id. at 40-41. 

{¶ 12} Lilly supplemented his testimony with an affidavit in support of CRC's 

motion for summary judgment. In his affidavit, he swore that after Brown left, her duties 

were performed by a black female HIT who was already working at CRC. (Lilly Aff. at ¶ 3.) 

After that HIT left on March 17, 2017, the position was vacant until June 1, 2017, when it 

was filled with a white female HIT assigned by the staffing company to work at CRC. Id. 

Lilly noted that, as of the date of his affidavit, September 5, 2018, Brown was still working 

for ODRC as a HIT but at a different institution. Id. at ¶ 4. 

{¶ 13} Swackhammer had little memory of incidents between Brown and Ayers. 

(Aug. 1, 2018 Swackhammer Dep. at 7-8.) However, he remembered that on the day Brown 

left, as she was packing her belongings, she told Swackhammer he needed to "get [his] boy 

in check," in reference to Ayers. Id. at 13. Brown also related that she had been planning 

to leave on Friday3 anyway. Id.

{¶ 14} George Frederick, the deputy warden of operations at CRC, testified that 

Brown was a HIT who was supervised by Ayers and Swackhammer. (Aug. 1, 2018 Frederick 

Dep. at 5-7.) He initially recalled that Brown left because she did not like the work 

atmosphere but then remembered that Brown told him she had called Ayers a racist and 

that Ayers had told her to "get out." Id. at 8-9. 

{¶ 15} Neither of the two deponents from the staffing company had received any 

information from CRC to suggest that Brown was terminated. (July 19, 2018 Seese Dep. in 

passim; July 19, 2018 Wolf Dep. in passim.) Two other deponents from CRC also testified 

about matters not relevant to this appeal. (July 19, 2018 Wright Dep. in passim; Aug. 1, 

2018 Reynolds Dep. in passim.) 

{¶ 16} Based on the summary judgment record, the trial court determined that, 

construing the evidence in Brown's favor, CRC retained a degree of control over the manner 

and means of her work sufficient to subject it to liability as an employer. (Feb. 4, 2019 

Decision at 8.) However, it concluded that even construing the evidence most strongly in 

favor of Brown, she did not suffer an adverse employment action because she was not, in 

 

3 January 26, 2017 was a Thursday. 
No. 19AP-104 8 

fact, terminated. Id. at 11. Specifically with respect to the discrimination claim, the Court 

of Claims found, based on Lilly's affidavit, that Brown was not directly replaced by a white 

HIT. Id. at 11-12. It also reasoned that Gerber, as a union nurse, was not similarly situated 

to a HIT and did not, in any event, engage in the same behavior as Brown and thus could 

not serve as an example of a comparable non-protected person who was treated more 

favorably. Id. at 12. With respect to the retaliation claim, the trial court found that Brown 

had not engaged in protected conduct about which there could have been retaliation as she 

did not file an Equal Employment Opportunity Commission claim until after her 

employment had already ended. Id. at 15. 

{¶ 17} Brown now appeals. 

II. ASSIGNMENTS OF ERROR 

{¶ 18} Brown alleges two errors for our review: 

[1.] The Trial court Determination that there was No 

Retaliation is Contrary to Law. 

[2.] The Trial Court's Determination Appellant Resigned is In 

Error. The Court inappropriately weighed Evidence when 

there was A Material Issue of Fact Which Was Disputed by both 

Appellant and Appellee. 

(Capitalization original.) 

III. STANDARD OF REVIEW 

{¶ 19} Civ.R. 56(C) provides that: 

Summary judgment shall be rendered forthwith if the 

pleadings, depositions, answers to interrogatories, written 

admissions, affidavits, transcripts of evidence, and written 

stipulations of fact, if any, timely filed in the action, show that 

there is no genuine issue as to any material fact and that the 

moving party is entitled to judgment as a matter of law. 

The Supreme Court of Ohio has explained: 

Summary judgment will be granted only when there remains 

no genuine issue of material fact and, when construing the 

evidence most strongly in favor of the nonmoving party, 

reasonable minds can only conclude that the moving party is 

entitled to judgment as a matter of law. Civ.R. 56(C); Temple v. 

Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 Ohio Op. 

3d 466, 364 N.E.2d 267. The burden of showing that no 

genuine issue of material fact exists falls upon the party who 
No. 19AP-104 9 

files for summary judgment. Dresher v. Burt (1996), 75 Ohio 

St.3d 280, 294, 1996 Ohio 107, 662 N.E.2d 264. 

Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10; see also, e.g., Esber Beverage Co. 

v. Labatt United States Operating Co., L.L.C., 138 Ohio St.3d 71, 2013-Ohio-4544, ¶ 9. 

{¶ 20} The Supreme Court has also discussed in detail the relative burdens of 

movant and nonmovant: 

[A] party seeking summary judgment, on the ground that the 

nonmoving party cannot prove its case, bears the initial burden 

of informing the trial court of the basis for the motion, and 

identifying those portions of the record which demonstrate the 

absence of a genuine issue of material fact on the essential 

element(s) of the nonmoving party's claims. The moving party 

cannot discharge its initial burden under Civ.R. 56 simply by 

making a conclusory assertion that the nonmoving party has no 

evidence to prove its case. Rather, the moving party must be 

able to specifically point to some evidence of the type listed in 

Civ.R. 56(C) which affirmatively demonstrates that the 

nonmoving party has no evidence to support the nonmoving 

party's claims. If the moving party fails to satisfy its initial 

burden, the motion for summary judgment must be denied. 

However, if the moving party has satisfied its initial burden, the 

nonmoving party then has a reciprocal burden outlined in 

Civ.R. 56(E) to set forth specific facts showing that there is a 

genuine issue for trial and, if the nonmovant does not so 

respond, summary judgment, if appropriate, shall be entered 

against the nonmoving party. 

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). In deciding summary judgment, the trial 

court must give the nonmoving party "the benefit of all favorable inferences when evidence 

is reviewed for the existence of genuine issues of material facts." Byrd at ¶ 25. When 

reviewing a trial court's decision on summary judgment, our review is de novo and we 

therefore apply the same standards as the trial court. Bonacorsi v. Wheeling & Lake Erie 

Ry., 95 Ohio St.3d 314, 2002-Ohio-2220, ¶ 24. 

IV. DISCUSSION 

A. First Assignment of Error – Whether the Trial Court Misconstrued the 

Retaliation Claim 

{¶ 21} R.C. 4112.02 prohibits retaliation by an employer against an employee: 

It shall be an unlawful discriminatory practice: 

* * * 
No. 19AP-104 10 

(I) For 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. 

R.C. 4112.02(I). The Supreme Court has explained, "we have determined that federal case 

law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, 

U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." 

Little Forest Med. Ctr. v. Ohio Civil Rights Comm., 61 Ohio St.3d 607, 609-10 (1991). Thus, 

where appropriate, we and other courts refer to federal caselaw in this context. 

{¶ 22} The Supreme Court has explained that to establish a prima facie case of 

retaliation: 

[A] claimant must prove that (1) she [or he] engaged in a 

protected activity, (2) the defending party was aware that the 

claimant had engaged in that activity, (3) the defending party 

took an adverse employment action against the employee, and 

(4) there is a causal connection between the protected activity 

and adverse action. 

Greer-Burger v. Temesi, 116 Ohio St.3d 324, 2007-Ohio-6442, ¶ 13, citing Canitia v. Yellow 

Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.1990). "If a complainant establishes a 

prima facie case, the burden then shifts to the employer to 'articulate some legitimate, 

nondiscriminatory reason' for its actions." Greer-Burger at ¶ 14, quoting McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Then, "[i]f the employer satisfies this 

burden, the burden shifts back to the complainant to demonstrate 'that the proffered reason 

was not the true reason for the employment decision.' " Greer-Burger at ¶ 14, quoting 

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 

{¶ 23} Brown argues that her statement to Ayers that he was racist constituted a 

protected activity because it was "oppos[ition to] any unlawful discriminatory practice." 

R.C. 4112.02(I). When this protected accusation was met with an immediate statement by 

Ayers that she had to "get out" or she would be "escorted out," Brown argues the prima facie 

claim for retaliation was complete. (Brown Brief at 16-17.) 

{¶ 24} It is undisputed that Ayers knew that Brown accused him of being racist; even 

according to his testimony, she made the accusation in person to his face. (Ayers Dep. at 
No. 19AP-104 11 

16-18, 64-65.) There is no doubt that, under Brown's stated view of the confrontation with 

Ayers, the alleged termination was directly and immediately provoked by the allegation that 

Ayers was racist. (Brown Dep. at 102-04, 107-09, 110-11.) The questions pivotal to this 

assignment of error are whether Brown was terminated and whether the direct in-person 

oral allegation of racism constitutes protected activity to support a retaliation claim. We 

first consider whether Brown's confrontation of Ayers constituted protected activity. 

{¶ 25} The Sixth Circuit Court of Appeals has explained how to draw the line 

between protected "oppos[ition to] any unlawful discriminatory practice" and unprotected 

acts. R.C. 4112.02(I); Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 

1313 (6th Cir.1989). 

" '[T]he opposition clause' [citation omitted] does not protect 

all 'opposition' activity." Holden v. Owens-Illinois, Inc., 793 

F.2d 745, 751 (6th Cir.), cert. denied, 479 U.S. 1008, 93 L. Ed. 

2d 704, 107 S. Ct. 649 (1986). Courts are required "to balance 

the purpose of the Act to protect persons engaging reasonably 

in activities opposing . . . discrimination, against Congress' 

equally manifest desire not to tie the hands of employers in the 

objective selection and control of personnel. . . . The 

requirements of the job and the tolerable limits of conduct in a 

particular setting must be explored." Hochstadt v. Worcester 

Foundation for Experimental Biology, 545 F.2d 222, 231 (1st 

Cir. 1976); see also Mozee v. Jeffboat, Inc., 746 F.2d 365, 374 

(7th Cir. 1984). "There may arise instances where the 

employee's conduct in protest of an unlawful employment 

practice so interferes with the performance of his job that it 

renders him ineffective in the position for which he was 

employed. In such a case, his conduct, or form of opposition, is 

not covered . . . ." Rosser v. Laborers' Intern. Union, 616 F.2d 

221, 223 (5th Cir.), cert. denied, 449 U.S. 886, 101 S. Ct. 241, 

66 L. Ed. 2d 112 (1980). An employee is not protected when he 

violates legitimate rules and orders of his employer, disrupts 

the employment environment, or interferes with the 

attainment of his employer's goals. Unt v. Aerospace Corp., 

765 F.2d 1440, 1446 (9th Cir. 1985). 

Booker at 1312. We also have previously remarked: 

In order to engage in a protected opposition activity * * * a 

plaintiff must make an overt stand against suspected illegal 

discriminatory action." Comiskey v. Automotive Industry 

Action Group (E.D.Mich. 1999), 40 F. Supp. 2d 877, 898. "[A] 

vague charge of discrimination in an internal letter or 

memorandum is insufficient to constitute opposition to an 
No. 19AP-104 12 

unlawful employment practice." Booker * * *, 879 F.2d [at] 

1313. 

Jackson v. Champaign Natl. Bank & Trust Co., 10th Dist. No. 00AP-170, 2000 WL 

1376534, 2000 Ohio App. LEXIS 4390, *19 (Sept. 26, 2000). 

{¶ 26} CRC argues that Brown's accusation of racism did not rise to the level needed 

so as to be protected activity because "a simple assertion that a supervisor is racist is not 

protected activity." (CRC's Brief at 19). It cites only Booker for this proposition. But 

applying Booker to Brown's allegations requires further analysis. 

{¶ 27} The Booker court reasoned that a letter sent by Booker, the aggrieved 

employee, to company management did not constitute protected activity because it was 

found not to be in opposition to an unlawful employment practice: 

An examination of the letter indicates that it is not in 

opposition to a violation of the Act. Booker was not contesting 

any unlawful employment practice; he was contesting the 

correctness of a decision made by his employer. Booker 

generally attempts to dispute the employer's position with 

regard to his managerial style, and he suggests that the focus of 

the company's inquiry should be on his supervisor[]. 

There are only two possible allegations in the letter that suggest 

Booker may have been contesting an unlawful employment 

practice. Booker suggests that [his supervisor] may be a racist 

due to a statement he allegedly made. However, the allegation 

is not that [the employer] is engaging in unlawful employment 

practice, but that one of its employees has a racial intolerance. 

The only other possible suggestion of opposition is when 

Booker alleges that the charges against him are a result of 

"ethnocism." Assuming that Booker intended discrimination, 

we hold that a vague charge of discrimination in an internal 

letter or memorandum is insufficient to constitute opposition 

to an unlawful employment practice. An employee may not 

invoke the protections of the Act by making a vague charge of 

discrimination. Otherwise, every adverse employment decision 

by an employer would be subject to challenge under either state 

or federal civil rights legislation simply by an employee 

inserting a charge of discrimination. In our view, such would 

constitute an intolerable intrusion into the workplace. 

(Footnote omitted.) Booker at 1313. 
No. 19AP-104 13 

{¶ 28} Viewing the evidence before the Court of Claims in a light most favorable to 

Brown, her charge of racism was neither vague nor inappropriate in the ways discussed in 

Booker and Jackson. According to Brown, she asked to speak to one of her three 

supervisors (Ayers) privately in his office. (Brown Dep. at 102-04, 107-09, 110-11.) Then, 

in a private conversation away from inmates and the potential of disrupting the workplace, 

she expressed the view that he was being excessively critical of her work on account of her 

standing up for someone of her same race, that he had engaged in a campaign to drive other 

black workers away from the workplace, and that he was racist. Id. Viewed from the 

perspective required on summary judgment, the conversation as recounted by Brown could 

constitute taking an "overt stand against" suspected illegal workplace discrimination and 

be protected opposition within the meaning of R.C. 4112.02(I). Jackson, 2000 Ohio App. 

LEXIS 4390, *19; Comiskey v. Automotive Industry Action Group, 40 F.Supp.2d 877, 898 

(E.D.Mich.1999). While we understand that Ayers and CRC have a different view of what 

transpired on January 26, 2017 and in the time leading up to it, the character of Brown's 

accusations and the nature of the relationship between Ayers and Brown are disputed 

factual questions that must be resolved by trial before a factfinder empowered to make 

credibility determinations–not on summary judgment, requiring that the evidence must be 

construed most strongly in favor of Brown. 

{¶ 29} Brown's first assignment of error is sustained. However, because the Court 

of Claims determined that Brown was not terminated, we review her second assignment of 

error. 

B. Second Assignment of Error – If there was a Genuine Dispute of Fact as 

to Whether Brown was Terminated 

{¶ 30} CRC successfully argued before the Court of Claims that Brown was not 

terminated from her position. (Feb. 4, 2019 Decision at 11; Nov. 5, 2018 Mot. for Summ. 

Jgmt. at 10-11.) On appeal, CRC continues to maintain that Brown was not terminated 

because, even based on the summary judgment record, the undisputed evidence shows that 

Ayers never took the administrative actions necessary to terminate her. (CRC's Brief at 19-

20.) Brown has replied that the evidence is in conflict over what Ayers said and did and 

that the case therefore is not appropriate for summary judgment. (Brown's Brief at 21-22; 

Brown's Reply Brief at 5-11.) 
No. 19AP-104 14 

{¶ 31} The federal court in the Western District of Oklahoma addressed a situation 

where a supervisor told an employee "that due to [her] pregnancy, [her] doctor's 

appointments and not being able to be there as much as the other girls that [she] couldn't 

perform [her] job duty and that they would have to let [her] go." White v. Hammer Constr., 

Inc., Case No. CIV-04-732-F, 2005 WL 1606450, 2005 U.S. Dist. LEXIS 37122, *4 

(W.D.Okla.2005). In deciding summary judgment in that case, the district court discussed 

the arguments of the parties about whether the plaintiff had been terminated: 

In its motion, [the employer] contends that [the plaintiff] is 

unable to establish a prima facie case because she cannot show 

that she was terminated or suffered any other adverse effect on 

her employment. [The employer] contends that only [the 

company president] had the authority to fire employees and 

[the company president] never terminated [the plaintiff]. * * * 

As to [the supervisor], [the employer] contends that [the 

supervisor] knew she could not fire employees. [The employer] 

also asserts that [the supervisor] testified that she had never 

talked to [the company president] about any plans to fire [the 

plaintiff] and that she had no plan to fire [the plaintiff]. 

Furthermore, [the employer] asserts that when [the plaintiff] 

returned the next day to pick up her paychecks, [the 

supervisor] told her she had not fired [the plaintiff]. [The 

employer] contends that despite all the signs that she had not 

been fired, [the plaintiff] failed to avail herself of any recourse 

by going to [the company president] to discuss the alleged 

termination. * * * 

[The plaintiff] contends that [the supervisor] had apparent 

authority to terminate her. Indeed, [the plaintiff] asserts that 

[the supervisor] specifically told [the plaintiff] that "we will 

have to let you go." [The plaintiff] contends that [the 

supervisor] was her direct supervisor and never communicated 

to [the plaintiff] that she did not have authority to terminate 

her. [The plaintiff] also contends that [the company president] 

conceded in deposition that it is possible that [the supervisor]' 

statement to [the plaintiff] could have left a clear impression 

that [the plaintiff] was being fired. [The plaintiff] therefore 

contends that the question of whether [the supervisor] 

terminated her on April 24, 2003 is a question for the jury. 

Viewing the evidence in a light most favorable to [the plaintiff], 

the court concludes that [the plaintiff] has raised a genuine 

issue of fact as to whether she was discharged. The jury, not 

the court, must decide whose version of the April 24, 2003 

conversation, [the plaintiff]'s or [the supervisor]' version, is to 
No. 19AP-104 15 

be believed. Although [the supervisor] may not have had 

express authority to fire employees, there is a question of fact 

as to whether [the supervisor] acted with apparent authority in 

terminating [the plaintiff]. [The supervisor] was [the 

plaintiff]'s direct supervisor. She was involved in the interview 

process and had input into the decision to hire [the plaintiff]. 

According to [the plaintiff]'s version of the April 24, 2003 

conversation, [the supervisor] professed an authority to 

terminate [the plaintiff] by stating that "we will have to let you 

go." Moreover, [the plaintiff] testified that "[the supervisor] 

has always -- she always made decisions. She was -- she was 

the boss when [the company president] was not there." The 

court concludes that [the plaintiff] has presented sufficient 

evidence to raise a genuine issue of fact as to the third element 

of her prima facie case, that she was discharged from her 

employment. 

(Citations omitted.) Id. at *7-10. 

{¶ 32} Similarly, in the Western District of Michigan, a federal court deciding 

summary judgment on the question of termination said this: 

[A]lthough the parties hotly contest whether [the store 

manager] had the authority to terminate employees, [the 

plaintiff] has produced evidence that [the store manager] had 

significant input into promotion and termination at the Benton 

Harbor store. Although [the employer company] has 

introduced evidence that [the store manager] lacked actual 

authority to terminate employees, at a minimum, [the plaintiff] 

has established an issue of fact as to whether [the store 

manager] had apparent authority to promote and terminate 

employees. 

Wright v. AutoZone Stores, Inc., 951 F.Supp.2d 973, 991 (W.D.Mich.2013). 

{¶ 33} Here, there is no dispute that Ayers was one of Brown's supervisors. (Ayers 

Dep. at 6-10; Frederick Dep. at 5-7.) Viewing the evidence in a light most favorable to 

Brown, Ayers told her to "get out" or he would "have [her] escorted out of here." (Brown 

Dep. at 110-11.) Drawing all reasonable inferences in favor of Brown, there is a genuine 

issue of material fact about whether she had been terminated by someone with apparent 

authority do to so. CRC attaches great importance to the fact that Brown indicated she had 

planned to leave anyway and that Ayers never followed up on his alleged "get out" statement 

by going through the proper channels to terminate Brown. (CRC's Brief at 20.) But the 

Court of Claims' summary judgment in favor of CRC ignores the relative employment 
No. 19AP-104 16 

positions of the parties. When Brown left, she thought she was terminated and stated that 

she did not want to be escorted out. Based on Ayers' authority (two supervisors above her), 

her return to CRC may be construed to have been unlikely. Yet, when Brown declared to 

Ayers (as she recounted in her e-mail to ATC), "I planned on leaving today anyway because 

your [sic] not going to continue harassing me any more [sic]," Ayers would reasonably have 

assumed that he did not need to undertake the formal steps of terminating Brown because 

she was not coming back. (Wolf Dep. Ex. A; Brown Dep. at 110-11.) Thus, under the view 

of the evidence most favorable to Brown, Ayers' and Brown's actions after the "get out" 

statements are consistent with Ayers having terminated Brown and simultaneously 

believing he had no need to follow through with the formalities of termination because 

Brown was not intending to return. In short, construing the evidence most strongly in favor 

of Brown, there is a genuine issue of fact as to whether she suffered an adverse employment 

action. 

{¶ 34} Brown's second assignment of error is sustained. 

V. CONCLUSION 

{¶ 35} Construing the evidence in Brown's favor after conducting a de novo review, 

we find that there are genuine issues of fact as to each of the disputed elements of Brown's 

claim for retaliation. Accordingly, Brown's retaliation claim is not suitable for resolution 

on summary judgment according to the evidence in the record at this juncture, and we 

sustain Brown's two assignments of error. The judgment of the Court of Claims of Ohio is 

reversed and remanded. 

Judgment reversed and remanded. 

BEATTY BLUNT and NELSON, JJ., concur.