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Jennifer Parson v. Department of Youth Services

September 1, 2011

JENNIFER PARSON
PLAINTIFF
v.
DEPARTMENT OF YOUTH SERVICES DEFENDANT



The opinion of the court was delivered by: Judge Alan C. Travis

Cite as Parson v. Ohio Dept. of Youth Servs.,

The Ohio Judicial Center 65 South Front Street, Third Floor Columbus, OH 43215 614.387.9800 or 1.800.824.8263 www.cco.state.oh.us

DECISION

{¶1} This case was sua sponte assigned to Judge Alan C. Travis to conduct all proceedings necessary for decision in this matter.

{¶2} Plaintiff brought this action alleging claims of sexual harassment, disparate treatment and retaliation arising under R.C. 4112.02, and a claim of intentional infliction of emotional distress.*fn1 The issues of liability and damages were bifurcated and the case proceeded to trial on the issue of liability.

{¶3} Defendant hired plaintiff on September 4, 2007, as a juvenile correctional officer (JCO) at the Ohio River Valley Juvenile Correctional Facility (ORVJCF). As a condition of her employment, plaintiff was to serve as a probationary employee for one year, during which time she was ineligible for union membership and was considered an at-will employee. Plaintiff worked as a "relief" officer, meaning that she was deployed throughout the facility as needed, usually filling in for other JCOs who were on leave.

{¶4} Depending on her assignment or location within the facility, plaintiff was supervised at times by Unit Administrator William Klaiber. Plaintiff testified that she considered Klaiber to be a "bully" who was unfair and excessively harsh in his criticism of her job performance. Plaintiff stated, for example, that Klaiber "yelled" at her after she called a youth a derogatory name; Klaiber "hollered" at her for improperly handling a confidential tip provided by a youth; Klaiber "lectured" her for leaving an incident report in an unattended location; and Klaiber yelled at her for violating a rule that prohibited her from distributing commissary items to youths.

{¶5} According to plaintiff, Klaiber also engaged in what she construed as sexually harassing behavior, including singling her out for private discussions in his office; calling her once on a telephone within the facility and telling her that he was watching a security camera videotape of her; and briefly touching her shoulder once in October 2007, while telling her "to let him know if there's anything he can do."

{¶6} Klaiber testified that he occasionally supervised plaintiff and that he was also assigned on a few occasions to conduct investigations pertaining to her. Klaiber stated that he found on several occasions that plaintiff had violated institutional rules, and that he considered her performance to be "sub-par" in certain areas. Klaiber related that in addressing such issues, he used the same "verbal coaching techniques" with plaintiff as he did with other employees, and he explained that he generally tried to have such discussions in private so as to prevent other staff or youths from overhearing.

{¶7} Klaiber, who is now retired, acknowledged that over the course of his career at ORVJCF, he developed a reputation for being a "blunt" or "brash" supervisor, but he stated that he treated all employees equally and fairly. Klaiber testified that he never used profanity toward plaintiff; that, although he did not recall telling plaintiff that he was watching her on videotape, he did review aspects of her job performance by watching security camera footage, pursuant to an investigation which he was assigned to conduct; that he told all new JCOs, including plaintiff, that if there is anything they ever had questions or concerns about, they could come to him; and that he did not recall ever touching plaintiff.

{¶8} Daniel Horner, who worked as a JCO for six years at ORVJCF and was supervised during some of that time by Klaiber, testified that Klaiber was "tough" and "assertive" in his dealings with all staff, regardless of gender. Horner also stated that it is routine for supervisors to review videotape footage of JCOs to monitor their job performance, and to telephone JCOs in regard to the same.

{¶9} Plaintiff related that on July 1, 2008, she complained about Klaiber's conduct to a supervisor, Mr. Salyers, who referred her to Karen Sizemore, Human Resources Manager for ORVJCF. On July 11, 2008, plaintiff met with Sizemore and inquired about the procedure for filing a complaint against Klaiber with defendant's equal employment opportunity (EEO) office. On July 15, 2008, plaintiff submitted her EEO complaint in which she accused Klaiber of being unfair and demeaning, but she noted that male employees "are also being treated in the same demeanor" and she made no reference to any touching or other sexual behavior. (Plaintiff's Exhibit 6.)

{¶10} Plaintiff testified that on July 22, 2008, a supervisor, whose name she could not recall, completed a 90-day performance review in which she received "satisfactory" marks in three of six categories. (Plaintiff's Exhibit 4.) According to plaintiff, this review was adverse in comparison to previous reviews. In describing her previous reviews, plaintiff testified that Salyers gave her an "on target" rating in an April 2008 "mid-probationary review"; that another supervisor, Joel Patrick, rated her as satisfactory in all six categories in a 90-day review in January 2008; but that another supervisor, Connie Evans, gave her satisfactory marks in only one of six categories in a 90-day review in December 2007. (Plaintiff's Exhibits 1, 2, 3.)

{¶11} Plaintiff testified that on August 8, 2008, she was summoned to a meeting with both the superintendent of ORVJCF and a union steward. At this meeting, plaintiff, the superintendent, and the union steward all signed an agreement to extend plaintiff's probationary period by 90 days. The agreement states, in part, that: "[t]his extension is necessary in order to more fairly and thoroughly assess the performance of [plaintiff] and to address certain concerns regarding her job performance. [Plaintiff] has been apprised of the areas that she needs to improve. The extension, along with her obtaining a permanent bid, will allow her more time to attain the level of expectations for the position of Juvenile Correctional Officer at the Ohio River Valley Correctional Facility." (Plaintiff's Exhibit 12.)

{¶12} According to plaintiff, the July 2008 performance review and the extension of her probationary period caused her significant stress and led her to seek treatment from her primary care physician, Dr. Michael Martin. Plaintiff testified that when Dr. Martin examined her on August 13, 2008, he wrote a note stating that plaintiff was under his care, that plaintiff "may return to work on 8/28/08," and that "[t]he patient's absence was medically advised." (Defendant's Exhibit M.)

{ΒΆ13} Later on August 13, 2008, plaintiff presented the note to Sizemore and requested a corresponding leave of absence. Plaintiff acknowledged that at the time of her request, she had a balance of only 72 hours of leave, which was less than the amount of leave that she sought. Further, inasmuch as plaintiff had been employed by defendant for less than one year, she was not ...


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