[Cite as Bolin v. Ohio Bur. of Criminal Investigation , 2023

- Ohio

- 1841.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} P laintiff brings claims of emp l oyment discrimin ation in vi olati o n of R.C. 4112

. S pecif ically
, p laintiff ar gues that she was subjec ted to a hostile work en vironment creat ed by age dis crimination and that she wa s constructively discharg ed. The issues of liability and damages were tried to th e court. Post

- trial briefs were filed, and p laintiff ’ s February 21, 2023 motion for an extension of time to file her reply brief is GRANTED, instanter. 1 For the following reasons, th e magistrate recommends judgment in favor o f defendant.
The magis trate makes the following finding s of fact an d conclusions of law.

Findin gs of Fact {¶2} Plaintiff began her employment with defendant , Ohio Bureau of Crimi nal
Inves tigation (BCI) as a c riminalist on A ugust 1, 1988. BCI has th ree office locations: London, Richfield , and Athens, O hio. I n September 2003, plaintiff was promoted to supervise t he London Biology/DNA section at BCI

. Plaintiff was an exempt , classified employe e but she was not a mem ber of a b argaining unit. B CI is subject to the disciplinary
po licies of the O hio Attorn ey Gen e r al ’ s Of fice (AGO) , which provides for a policy of
prog ressive discip line

. ( Defendant ’ s Exhibit B , p. 1. ) BCI ’ s progressive discipline p olicy
includes the following levels: ( 1 ) V erbal reprimand reduced to writing ; ( 2 ) Wri tten

1 Although defen dant presented a new argument in its p o s t

- trial brief asserting t hat plainti ff ’s claims were time

- barred pursuant to R.C. 4112. 02(L) , defendant failed to raise t h i s argument prior to or during trial. The refore, the magistrate will not address it further

. LYNN BOLIN

Plaintiff

v.

OHIO BUREAU OF CRIMINAL INVESTIGATION

Defendant Case No. 2021

- 00198JD

Ma gistrate Holly True Shaver

DECISION OF THE MAGISTRATECase No

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reprimand; ( 3 ) S uspens ion ; ( 4 ) Termination. ( Defendant ’ s Exhibit A , p. 1. ) Disciplinary
action does not include corrective action suc h as coa ching, training, or counseling. Id

. {¶3} In August 2019, plaintiff becam e eligible to retire. At that time, th ere were three super visors i n th e BCI laboratory in London : plaintiff, Kristin Slaper, and Sa rah Smith. Plaintiff was the only supervisor over 40 years old. Although plaintiff worked for many supervisors over the years, her most recent supervisor was Dr . Karen Kwek.
Plain tiff was bor n in 1966. Kwek was born in 1961. The issues in th is case began in
2019 and ended with plaintiff ’ s retirement in 2020. Testimony at trial was elicited about the followin g incidents that plaintiff asserts led to her con str uctive discha rge.

1. A ugust 7, 20 1 9 Incident {¶4} On July 1
, 2019, plaintiff requested that an additional test be conducted on a
case. The staff mem ber who was assigne d to work on the case , Devonie Herdeman, s aw plaintiff ’ s request on a post

- it note on the file , but decided to run a diff e ren t test , crossed off what plaintif f had requested, and wrote on the note that she would run the test that plaintiff had requested after the results from the test th at Herdema n conducted came
back
, if necessary. Plaintiff dis c overed th at her orig inal ins tru c tions had not been followed on July 23, 2019 , and she sent the case back to run the test as she had originally requested

. O n August 7, 2019 , o nce the results were in and plaintiff was conduct ing a final administrative revie w, plaintiff asked H e rdeman to d iscuss the case in h er office.
Plaintiff testifi ed that a conf lict ar ose, Herdeman was getting red in the face
, Herdeman cursed loudly enough for others to hear, and then Herdeman abruptly left plaintiff ’ s office.
A fter t he meeting, plainti ff memoriali z ed her versio n of e vents in an email to both her supervisor at th e time, Jennifer Du vall , and to K w ek . (Plaintiff ’ s Ex hibit 2 ). In plaintiff ’ s email, she did not men tion that Herdeman cursed , although she did mention that i t was
not the fir s t time that H erdeman had “ openly treated [ her ] with d isrespect. ” Id. {¶5} Devoni e Herdeman testified that when she sa w the post

- it note on the case
file , she thought it was a dev iation from what she w ould typically do . Herdeman discussed
th e request with a r obot operato r (one of the scientists approved to use robot testing) an d they determined that testing another sample that had not been previously teste d would
be a better idea than wha t plaintiff ha d requested. Her de man did not anti cipate that theCase No

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decision wo uld be pr o blema tic, because there are many la yers of protoc ols with guidelines from both the FBI and BCI. Her deman described plai nt iff as being
confrontational during the meeting in her office

. Herdeman stated that from beginning to end, plain tiff was very curt a n d accusatory and that
, no matter what she said to explain why she made the testing choice, plaintiff ’ s dem eanor was very cold and standoffi sh.
Her deman testified that she chose to follow the protocols in place instead of fol lowing pla intiff ’ s request to d o it a different way. After the confrontation with Herdeman , plaintiff
testifie d that she was called into a meeting and chastised by Kwek for a v ariety of things
, specifically , that she did not know what she was doing rega rd ing testin g pro toco ls and
that she did not communicate well.

2. Perfo rman ce Improvement Plan {¶6} Shortly thereafter, plaintif f took time off for a medical procedure from August 16 through September 29, 2019

. Upon her return, plaintiff discovered that while she had
been on leave
, five staf f m embers had complained to Duv all and Kwek about plaintiff ’ s management an d communication style

. Plaintiff was called into a meeting with Kwek
, Du vall, and Abby Schwaderer , Quality Assurance Mana ger , and was info rmed that she

wou ld be placed o n a Perform an ce Improvement Plan (PIP). ( Plaintiff ’ s Exhibit 1.)
Plaintiff testified that she as ked to change some of t he language set forth in the PIP
b ecause she felt that much of it was untrue. However, the language was n ot amended,
and Kwek asked pl a intiff if sh e was refusing to sign the PI P. Plaintiff eventually signed
the PIP because she felt there would be repercussions if she did not. Plaintiff complied with the requirements set forth in the P IP : she met with supervisors on a weekly bas is for
f o ur weeks
, an d staff were interview ed abou t her perfor mance. Plaintiff believes that she successfully completed the PIP requ irements b ut testified that she was never officially notified that she had comp leted the PIP. {¶7} Schwaderer testif ied that she handles correct iv e ac tion plans fo r the l ab at BCI. Schwaderer stated that she issued a PIP to plaintiff based upon complaints from
several employees who had reported poor interactions with plaintiff, which are
documented in the PIP , such as i ntim idating a nd demeani ng be ha vior toward staff
, aggre ssive body language, inco nsistent administrative review pr actices, and a lack ofCase No

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knowledge of the current DNA workflow for supervision purposes. (Plaintiff ’ s Exhibit 1.) Hallie Dreyer, forensic scien tist at the t ime, also corro bo rated tes timony that aft er the incident with Herdeman, the scientist s brought up issues they had about plaintiff, including lack of communication, feeling uncomfortable speaking up , and the way cases were
handled. {¶8} The PIP was se t to expi r e on October 29
, 20 19. ( Id ., Defendant ’ s E xhibit H. ) Schwaderer testifi ed that she kept notes from her weekly meeting s with plaintiff about the PIP, attached to the P IP in Def endant ’ s Exhibit H. Schwaderer stated that plaintiff completed ev ery action i n the PIP, that pl aintiff had made great prog ress, and that staff had positive feedback for plaintiff

. Schwaderer ’ s notes from the final meeting on October 29, 2019 state that “ [a]ll PIP assignments were successfully completed. I provided a c opy of t he E m otional Inte lli ge nce 2.0 Summary document an d highligh ted topics associated
with the PIP specifically, as a resource for Lynn going forward. ” (Defendant ’ s Exhibit H, p. 18 of 19.) Schwaderer testified that a PIP is not considered discipline
, al though it does

rem ain in an employee ’ s personnel file. K wek tes tified that plaintiff successfully completed the PIP within the four

- we ek timeframe and there was no need to extend it.

3. Dece mber 6, 2019 incident {¶9} Plaintiff testified that on December 6, 2 019
, when sh e returned from th e Athens office, sh e receiv ed a telep hone call . Although the caller ID displayed the name
of Lewis Maddox
, the DNA technical leader in the Richfield office, when she p icked up the phone it was actually Kw ek who yell ed a t he r and t o ld her that her com mun ication

s kills had not impr ov ed at all, despite the PIP. Plaintiff admitted on cross

- examination
that Kwek did not threaten to discipline her during the phone call. Kwek testified that she
did not recall any phone call o f th at natu r e , but that Kwek ha d n o plans to discipline plainti ff
at th at time.

4. June 8, 2020 Incident {¶10} In early 2020, after a new Attorney General was elected, BCI ’ s administration reorganized its s tructure and Kwek became plaintiff ’ s direct supervisor. In the spr i ng of 2020, plaint iff took medical leave and r eturned on June 8, 2020. Plaintiff testi fied that theCase No

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same day, Kwek called her on her personal cell phone after work hours and said to her during their conversation, “ Why don ’ t you just retire? ” Plai ntiff t h ought the remark w as

u n usual because she had undergone ap proximately ten surgeries in f ive years, but Kwek
had never call ed her at ho me to ask her how she was doing before. Kwek testified that she recalled asking pla intiff the question , but Kw ek r emember e d the conversa tion ta k ing place in plaintiff ’ s office aft er plaintiff had returne d to work follo wi ng a medical procedure.
Kwek stated it wa s a friendly conversation
, and she asked the question out of empathy.
Kwek t estified that she was not sure whether pla i ntiff was elig ible to retire when she asked the question because she did not have access to plaintiff ’ s information with O PERS. However, Kwek state d t hat she and plaintiff had known each other t hrough work for over 20 y e ars.

5. Athens R ush Case {¶11} On Tuesda y, Augu st 4, 2 02 0, th e Athens i ntake o ffi ce technician n otified plaintiff that she was taking in a case and the sheriff was requesting a rush . Plaintiff
emailed her section to let them know the case was on its way and req uested that so m eone look at it as soo n a s possib le. Ap proximately 45 minutes later, o ne of the scientists
, Malorie Kulp, asked if DNA dat a was needed b y the end of the week, and , if so, st ated it

wo uld need to be complete ly extracted by the end of Thursday for h er to b e able to d o it
and not accrue ove rtime

. Plaintiff testi fied that she wa s working from h ome that day, and
she had wanted to review the case facts prior to responding , but h er remote VPN kept failing

. Pla intiff further testified that although she kept checking to se e if the pap er work
had been up loaded, she did not respond to Kulp ’ s email. On Wednesday afternoon, Slaper res ponded t o do what was possible t o move it a long. On T hursday afternoon,
p laintiff apologi zed for not responding sooner, but agreed that the case should be mo ve d
alo ng a s much as possible. {¶12} On Thursday, August 6, 2020 , plaintiff was a sked to attend a mee ting with
Kw ek and Schwaderer abo ut “ follow

- up. ” Plaintiff thought the meeting was about
fin alizing the PIP. Instead, plaintiff wa s surprised wh en Kwek critici z ed he r an d told her
that som eone had complained that plaintiff had not responded timely about the Athens

c ase. According t o plaintiff, Kwek told her that she w ould issue a verbal counselingCase No

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reduced to writing, but plaintiff n ever received an ything in writing a s a result of the
meeti ng. Plaintiff admitted on cross

- examination that although her VPN was not worki ng, in hindsight, plaintiff could have responded to Kulp ’ s question via telephone. Kulp testified that plaintiff did n ot respond to h er in qu iry on Tuesda y a round no on until Thu rsday afternoon, and only after another supervisor h ad responded. K wek denied stating that
sh e would issue a verbal counsel ing reduced to writing about this incident.

6. Administrat ive Review Case {¶13} On Friday, August 7 , 2020, at 8:18 a.m

. , plaintif f notified h er s taff that she
h ad injured herself leaving the lab on Thursday night and that she would be working from
home until after her doctor ’ s appointment that day. Sara h Smith let plaintiff know that sh e could cover if plaintiff did not w ant to go into the lab . Plaintiff responded by saying that she would check in after her appointment , and she did that at 10:48 a. m. Smith related that everything was under control an d that th ere was no need fo r plaintif f to go into the
lab

. These conver sations are reflected i n Plaintiff ’ s Exhibit 3. {¶14} After those emails, S laper then asked plaintif f about a different case that plain tiff had been working on suggesting that a con f ere nc e call be arranged. S laper
included Kwe k on the emai l. At 11 :48 a.m., K we k sent plai n tiff an ema il and included Schwaderer on it, criticizing her for the length of time the case had b een in administrative
review status a nd stated:
Wh y does it take a lesser experienced supervisor to recommend a conference call to get Tim, Amy a nd you disc ussing this case, and you have
had this case for a dmin review for well over a week? We also have Skype
and Teams available for our use. This is unac ceptable to si t on an admin review for this long and not in itiate a virtu al meeting. This is e xactly what we referenc ed yesterday about timely commu nica tion when we addressed the open Complaint and couns eling

. ( Plaintiff ’ s Exhibit 3, p. 2. ) Plainti ff res ponded t ha t she had gone to the lab to meet with
appropr iate parties, b ut that Amy had been t oo busy wit h other thin gs to have a meeting

. I d. Kwek responded in an email to plaintiff, Schwaderer, and Maddox stating:Case No

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“ R e gardles s, letting an admin sit f or over a week is excessive. Please make thi s meeting happe n

. ” Id

., p. 1. {¶15} Kwek testi fied that t here were t wo different things going on in the emails. One was th e rush c as e from Athen s , which was brought to her attention by a scientist
, and the other was the administrative re view case, which was brought to her at tention by
Madd ox. According to K wek , she had n o int ention o f firing plaintiff at this point, and she
did not thin k the emails were discipline. K wek stated that t he issues were about
respo nding in a timely manner to subordinates ’ emails and communicati on

.

7. Batch P roc essing I ssue {¶16} On Tuesda y, August 11 , 2020, one o f the analysts, Allison, notified plaintiff
that she was not fee lin g well and that she hoped to come in later in the day. Allison ’ s duties included assembl ing batche s o f samples for the other sc ient ists t o wo rk on . Upon
arrival t o the lab , p laintiff adde d Allis on ’ s name to th e calendar showing that s he was tentative for the day a nd pla intiff noticed there were three batche s available for scientists
to test. Thereaf ter, Allison called plaintiff at 11:00 a .m. , said she was feeling better
, and
stated that she would be in by no on. However, a f ter the three batches h ad b een taken and there were no more batches in the basket, multiple scient ists complain ed to plainti ff
that she had not told them that Allison w as no t coming in

. {¶17} Even th ough plainti ff told the s cientists that Allison would be in shortly
, Kwek then called pla intif f and told her that she had held up the section the entire day b y failing
to communicate. Plaintiff testi fied that Kwek told her she wo uld be getting a written

r eprim and for this inciden t, but plaintiff admitted she never received a written reprimand

. Hallie Drey er testified that she was frustrated at plaintiff ’ s lack of communication about
Al lison ’ s availability, and that the lack of co mmun ication directly affec ted the flow of work
that day. Kwek te st ified that employees w ere frustrated that plaintiff ha d not
communicat ed to them that Allison would not be in until noon, and she reminded plaint iff to have timely communication with staff. Kwe k testifie d that there was no atte mpt to termin ate plaintiff ’ s employment at this time and did n ot recall saying th at she would issue a written reprimand. Kwek did recall telling plaintiff that time was of the essence.Case No

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8. At hens Alarm Incid ents {¶18} Plaintif f te stified that
, period ical ly, the al arms would go off at the Athens location and employee Amanda Dillon would check on the building , consult security
services and law enfor cem ent, and then noti fy plaintiff via email of the details of the event
so that plaint iff could forward i n formation to u pper administrati on. Plaintiff ’ s Exhib its 4
and 5 document the se issues. {¶19} On August 12, 2020, plain tiff receiv ed an email from Kwek , who also copied Schwad erer . In the ema il, Kwek states that she spoke to Dillon to get i n formation about
ala rm incidents a t the At hens loca tion, because Kwek noticed that Dillon ’ s usu al start time varied on her timesheet, but the alarm was not docume nted as it should have been. The dates of th e alarm incidents were June 3 and July 7, 2020. {¶20} Kwek stated in her e mail: “ This l ack of verificatio n and consistency falls s hort of a supervisory responsibility. ” (Plaintiff ’ s Exhi b it 4 , p. 2 .) Plaintiff responded that sh e had been in the hospital on J une 3, but Kwek further stated that : “ You approved [Dillon ’ s ] OPA (ti mesheet) on 6/ 8 and should have questioned her start time which was earlier than
usual (7 am). ” Plaintiff testifie d that Dillon notified both Kwek, the Human Resources officer, and her se lf on June 3, 2020, of how she documented the alar m incident and her
hours that d ay , so Kwek should h ave already been awa re of this issue, and plaintiff was
on approve d leave at the ti me. {¶21} Kwek testified that it became an issue bec ause the director of sec urity asked her about it, and she noticed that the alarm incident was not noted in the OPA task tracke r. If it had been d ocume nted correctly, Kwek could have given that information to t he director of security without contacting plaintiff. Kwek brought it to plaintiff ’ s attention beca use , even if she was n ot present at the time, she app roved Dil lon ’ s times heet and it was not
Dillon ’ s usual start time. Kwek stated that plaintiff should have no ticed it when she approved the timeshe et. According to Kwek, t he email was not discipline. {¶22} Plaintiff tes ti fied th at prior to 2019, she ha d n ever been issued any dis ciplinary or corrective actions , but once Kwek beca me her supervisor, she wa s placed on a PIP, was told she would receive a verbal reprimand reduc ed to w riting and was threatened with a written reprimand. However, plaintif f admitted on cross
- examination
t hat for the e ntirety of her employment, she was never act ually issued formal discip line.Case No

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O n August 14, 2020, plaintiff notified BCI of her intention to retire, effective A u gust 28,
2 020. {¶23} Kwek testified t hat she did not d i scuss plainti ff ’ s retirement with her , and that she was copied on an email t hat plaintiff had elected to reti re. Plaintiff ’ s position was posted, and Hal l ie Dr e yer , who , accordin g to K wek is probably in her late 30s, was selecte d

. 2 Now , there are only t wo lab supervi sors: Sarah Smith a nd Ha l lie Dr e yer

. Slaper is current ly DNA lab ma nager and Duvall is lab manager for comparative science s. According to Kwek, two supervisors (Duvall an d Diane Garris) are over 50 year s old, and
Elizab e t h Benzinger is a s upervisor over 60 years old. {¶24} Plaint iff admitted on cross

- examinati on that Kwek never made any ageist comments to her. Plaintiff did not f i le any formal complaint of age discri mination un til after
her retirement paperwork had been accepte d

. Plaintiff testi fied that she h ad planne d on
workin g an additiona l three years, and that her monthly OPERS bene fit is $5,800 . Plaintiff
submitted a prin tout from O PERS of what her projected mo nthly bene fit would have been
if she retired on January 1, 20 2 4, which estimate d her monthly b enefit as $7
, 876. ( P lain tiff ’ s Exhibit 7. )

Conclusio n s of L aw Constructi ve Discharge {¶25} R .C. 4112.02 provides, in pertinent part, that: “ It s hall b e an u n l a wful
d isc rimina to ry practice: ( A) For any em ploy er , bec a us e of th e * * * age * * * of any pers o n,

* * * to d iscriminate a gainst t hat p erson with r espect to hir e, tenure, te rms, con ditions, o r privileges of employment
, or any o ther m a tte r d i r ectly or indire ctly rela ted to e mploy ment. ”
T o prevail
, p laint iff mu s t “ p resent [] e vidence , of any natur e , to sh ow that an emp loy er

mor e likely tha n not was m otivated by di scrimi n atory i n tent. ” Mauzy v. Kelly Servs., Inc.
, 75 Ohio St.3d 578
, 664 N.E.2 d 1272 (1996)
, pa ra graph o ne of the syll abus

. Plain ti ff do e s
not present any direc t evidence of d iscri m inatory intent. S ee S mi t h v. Supe r

ior Prod

. , LLC
, 2014

- Ohio

- 1961, 13 N.E. 3d 664, ¶ 16 (10 th D ist.) ( “ Direct evidence of disc rimination

2 Although Dreyer testified at trial, co unsel did not a sk Dreyer her date of birth.Case No

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is ev idence o f any n ature, whi ch if believed, is su fficient by itsel f to sh o w the employer
more lik el y than not w a s mot i va ted b y discri mi natory animus in i ts action. ” ) {¶26} A bsent direct evide nce, p laintiff bear s the initial burden of establishing a prima facie ca se of discriminat ion

. Hall v. O hio State Univ

. College of Humanities
, 1 0th
Di s t. Franklin No. 11 A P

- 10 68, 20 1 2

- Ohio

- 5 036, ¶ 13

- 1 4

. To establish a prim a faci e case of age discrimination, p laintif f must demonstrate that she “ (1) was a member of the
statu torily pr ot ecte d class, (2 ) was discharge d, (3) was qua li fied for the posi tion, a n d (4) was repla ced by, or the dischar g e permi tt ed the retention of , a per son o f su bstantially
younger age. ” Pettay v . DeVry Univ., Inc., 1 0th Dist. Franklin No . 19AP

- 76 2, 2021

- Ohio

1 380
, ¶ 22
, quoting Coryell v. Ban k One Tru st Co. N.A. , 101 O h io St .3d 175, 2004

- Ohio

723, 80 3 N.E .2d 781, ¶ 20

. T he magistrat e no tes that Dreyer was selected for plaintiff ’ s position after her r etirement, and although Dreyer ’ s age was not establishe d at trial, there seems to be no disput e that Dr eyer is s ubstantially younger than plainti ff. The refore, the magist rate shall assum e for purpose s of th is decision t hat plaintiff has established the first, third, and fourt h elements of a prima facie case of age di scrimination. However, the parties di sa gree on the second element. Defendant arg ues that p laintiff cannot p rove a prima fa cie case of age disc rimination becau se it did not discharge her and p lainti ff
volu ntarily re tired

. While i t is undispute d tha t p laintif f retired
, p lainti ff argue s d efendan t constructively dis c harged h er

. {¶27} “ C onstr uc tive d ischarge is not it self a cause of act ion, but rather a mean s of proving the e lement of an adv erse emplo yment acti on wher e the employee resigns
i nstead of being fired.” Fernandez v. City of Pataskala , S.D.O hio No. 2:05

- CV

- 75, 2006 U.S. Dist. LEXIS 82 136 * 5 2 (Nov. 9, 2006). To e stablish t hat she was construc tive ly
dischar ge d
, p laintiff mu st demons t rate that “ t he e mp loyer ’ s actions made working

co nd itions so in tol erable that a r easo nable pers on under the ci r cumstances would have fel t compelled to resign. ” M auzy v. Kelly Ser v

s , Inc. , 75 Ohi o St.3d 578, 588

- 5 89 , 664
N .E.2d 1272 (1996). Particularly
, a court must determine “ whether the cumulative effect
of the emp loyer ’ s actions wou ld make a reason able pers on believe that t erminati o n was immin ent. ” Id. at 58 9. Indeed, “ there is no so und rea son to compel an em p l oyee to
str uggle with the ine vi table simply to attain the ‘ discharge ’ la bel. ” Id. To make this
det erm ina tion, the court must consi d er the total ity o f the ci rcumsta nces, “ i ncl udingCase No

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reductions in sales territory, po or p erformance evalu ations, c riticism in fron t of coemployees, inquiries about retirement inten tions, and expressions of pref er en ce for emplo yee s o utsi de the prot e cted group

. ” Id. {¶28} Upon re vie w of the evidence presented at trial, the ma gistr ate finds that pla intiff has failed to prove, by a prep onderance of the evidence, that her working
condit ions were so intolerable that a reaso nable person under the c ircumstances would
have felt compelled to resign. Specifically, the magistrate finds that plaintiff has fai led to
prove th a t the cum ulative effe ct of Kwek ’ s actions would make a reasonable person
believe that termination was imminent. The evidence is uncontroverted that plaintiff was
never form ally disciplined pursuan t to defendant ’ s pro gress ive discipline pol icy

. While it
is true that pl ai ntiff was place d on a PIP, the testimony and evidence , including
defendant ’ s employment policies, show that a PIP is not a form of discipline . Moreover,
des pite plain tiff ’ s te stimony that she was neve r for mally notified tha t she completed t he PIP, both Schwade rer and Kwek testified credibly that plaintiff had successfully completed the PIP during the applicable four

- week period in October 2019. The attac hmen ts to Defendant ’ s Exhibit H corroborate Schw adere r ’ s test imony that plaintiff succes sfully completed the PIP. {¶29} Plaintiff testified that Kwek threatened her with discipline in the form of both a verbal reprimand reduced to writing, and a written reprimand

. However, despite plaintiff ’ s a ssertions, the evid ence shows that no formal disciplin e was ever issued to plaintiff as a result of the incidents testified to at trial. Because defendant follows a progressive discipline polic y, the magistrate finds that pla intiff has failed to prove by a preponderanc e of the e vidence that a reasonable pers on would have believ ed that
termination was imminent in August 2020. {¶30} The evidence does show that Kwek used direct and sometimes gruff language when critiquing plaintiff ’ s job performance , and that such criticism is refl ected in
emails th at were sent to s ome of her coworkers , including Slaper, Schwaderer, and
M addox. In addition, Kwek did not deny asking plaintiff about her retirement intentions
one time in June 2020. How ever, defendant ’ s employment policies specif icall y state that

couns el ing is not a fo rm of discipline. I n asmuch as plaintiff was never formally disciplined in 2019 or 2020, the magistrate finds that she has failed to prove that she wasCase No

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constructive ly disch arge d . Hence, the magistrate finds that pla intif f has failed to pr ove a
p rima fac ie case of age discrim ination. {¶31} Even assuming arguendo that plaintiff had established that she was

con structively discharged and, thus, had stated a prima facie case of age d iscrimination,
th e magistrate finds that d e fendant has proffered leg itim ate, non

- disc rimi natory rea son s for the c halle ng ed c ond uct

. Spec ifically
, d ef e nda nt has shown, through the credi ble
tes timony of K w ek, Herdeman, Dreyer, Kulp, and S chwaderer, that a ny arguably ad verse
emp loyment action taken against p laintiff w as in r esponse to other em plo yee s ’ com pla int s about p laintiff ’ s work perfo rmance or communication skills

. {¶32} With d efendant h aving pro ffer ed a non
- discrim ina tory ju s tificati o n for it s

con duct , the burden shifts to p laintiff to demonstrate t hat disc riminator y animus w as the
real moti va tion for the ch alle nged conduct. K u nd tz v. AT&T Sol u tions, Inc. , 1 0th Dist.
Fra nklin No. 05AP

- 1045, 2007

- Ohio

- 1 462, ¶ 3 2, 37

. To r efute d e fe nd a nt ’ s leg iti ma te,

non
- d iscrim inatory jus tif icat ion, p laintiff mu st “ show ei ther that the prof fered reason : (1) ha s no basis in fac t ; (2 ) did not ac t ua lly motivate t he defe ndant ’ s challe nged co nduct ; or (3) was insuf ficient t o warrant the ch alle nged con duct

. ” Id. a t ¶ 32

. {¶33} Upon r eview of the evidence and testimony presente d at tri al, the magistra te finds that plain tiff has failed t o prove, by a preponde rance of the evidence, that
defendant ’ s le gitimate, non

- discrimi natory reasons had no bas is in fact, did not actually
moti vate def endant ’ s challenged conduct, or w ere insuffic ient to warrant the chall enged
conduct. A gain, plaintif f w as never formally discip line d, so the challe nged co nduct at
issue is the PIP , the emails from Kwek, and any counseling that K wek gave to plai ntiff in

me etings abou t the above

- mentioned incid ents. Based u pon the evidence p resented at
tri al
, the magistrate finds that the testimony of Kwek, Herdeman, Dreyer, Kulp, and Schwaderer was more persuasive and credib le tha n plai ntiff ’ s testimony. Specifically, the greater weigh t of the evidence shows that pl aintiff ’ s lack of communi cation with staff led
to misunders tandings about testing protocols, staff attendance, and prior to the PIP was a source of low morale in the lab. In short, plaintiff ha s failed to prove that the PIP
, emails
, and counseling from Kwek were a pre te xt for age discrimination.

Hostile Work En vironmentCase No

. 2021

- 00198JD

- 13

- DECISION

{¶34} To establish a p rima facie cas e of h osti l e work en vir onmen t crea ted by ag e discrimination
, p lain tiff must s how t hat she was “ (1) a member of a protected class, (2 ) was subject ed to un welcome har a ssment because of age, (3) that ha d the effect of

u nreasonabl y interfering wi th the employe e ’ s work performance an d cre at ing an objecti vely intimidatin g , ho stile or of fensiv e work envi ronment. ” Hoyt v N ationwi de Mut.
Ins

. C o

. , 1 0th Dist

. Fra nklin No. 04A P

- 94 1 , 2005

- Ohio

- 6 367, ¶ 68. W he n determining
wheth er th e har assment created a n intimidating , hostile or offensive work env iro nment, a

c our t must con si der t he totality of the circumsta nces , in cluding “ ( 1 ) the frequenc y of th e discriminat ory conduct ; (2) i t s severity; (3) w hether it i s p hy s ically threatenin g or humil iating , or a mere o ffensive utter ance; and (4) whether i t unreasona bly inter fere s with
the employ ee ’ s work performance

. ” Cha pa v. Genp ak , LLC
, 1 0 th Di s t. Franklin No. 12AP

466, 201 4

- Ohio

- 897, ¶ 34. For the same reason s as discu ssed above, the m agistrate finds that plaintiff has failed to prove, by a pre ponderance of the evidence, that she was

s ubject ed to un welcome harassment because of her age, that the harassment had the

e ffect of unreasonabl y interfering w ith h er work performan ce, or that it cr eated an objectively intimidating, hostile or offensive wor k environment. Kwek ’s one

- time question about whether plaintiff was considering retirement i n June 2020 is insufficient as a matter
of law to support a hosti le wo rk en vironment cl aim : it was one time, it was not phys ically threatening, humiliating, or an offensive utterance, and it did not unreasonably interfere with plaintiff ’s work. Moreover, simpl e “ inquiries into retirement plans do not ge nerally
constit ute e videnc e of dis cri mination ”

. Ander son v. U.S . Bank Natl. Assn.
, S.D.Ohio N o. 2:14

- cv
- 2167, 2016 U.S. Dist. LEXIS 84728, *29 (June 28, 2016) , citing MacDonald v.
U nited Parcel Serv. , 430 F ed

. App x

. 453, 460 (6th Cir. 2011) ; Woythal v. Tex

- Tenn Corp.
, 112 F. 3d 243, 247 (6 th C i r.1 997)

.

Conclus ion {¶35} Fo r t he reasons set for th a b ove , the ma gistrate finds that plaintiff has fai led to prove any of her claims by a preponder ance of the eviden ce and re comm ends judgment in favor of defendant

. {¶36} A party m ay file written ob je ctions to the mag

istrate’s decis io n within 14 days of the filing of the decision, whether or not th e court has adop ted the decision during t hatCase No

. 2021

- 00198JD

- 14

- DECISION

14

- da y period as permitted by Civ.R. 53(D) (4)(e)(i). If any party timely files objections, any other party ma y also file objecti ons not later t ha n ten days after the first object ions are filed. A party shall n ot assign as err or on appeal the court’s adoption of any factual finding or legal concl usion, whether or not specifically designated as a finding of fac t o r conclusion of law under Civ.R. 5 3( D)(3)(a)(ii), unless the party ti mely and specifically objects to that factual fi

nding or legal conclusio n within 1 4 days of the filing of the decision, as required by Civ.R. 53(D)(3)(b).

HOLLY T RUE SHAVER Magistr at e

Filed April 19 , 2 02 3 Se nt to S.C. Reporter 6/ 2 /23