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Monica Veal v. Upreach LLC et al

October 20, 2011

MONICA VEAL, PLAINTIFF-APPELLANT,
v.
UPREACH LLC ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 09CVC05-7290)

The opinion of the court was delivered by: Sadler, J.

Cite as Veal v. Upreach, L.L.C.,

(REGULAR CALENDAR)

DECISION

{¶1} Appellant, Monica Veal, appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of appellees, Upreach, LLC ("Upreach") and Learning Never Ends, LLC ("LNE"). For the following reasons, we affirm.

{¶2} Upreach and LNE provide services to people with developmental disabilities. Upreach offers living services, and LNE presents daytime continuing adult education and wellness opportunities. At all relevant times hereto, Upreach and LNE were owned by Melissa Gourley, Susan Sadauskas, and Beth Swegheimer.

{¶3} On August 4, 2005, Upreach hired appellant, an African-American female, as a support specialist, responsible for supervising Upreach consumers in their homes and transporting them to various LNE programs. Appellant eventually became dissatisfied with the position and, in April 2007, discussed the possibility of a promotion with Gourley. Based upon appellant's stated interests, Gourley and Swegheimer specifically created an administrative assistant position for her, which appellant accepted on April 27, 2007. In accepting the promotion, appellant signed a document acknowledging that the position required her to "[d]ress in business casual attire to ensure UPREACH LLC is represented in a professional manner at all times." (Gourley Affidavit, Exhibit A, ¶8.)

{¶4} By way of affidavit, Gourley stated that appellant complained about the dress code soon after she accepted the administrative assistant position and, consequently, "developed a very negative attitude" in the workplace. (Gourley Affidavit ¶12.) After appellant had made several complaints about the business-casual requirement, Gourley asked her if she would accept a position with LNE that did not have a dress code. (Gourley Affidavit ¶13.) Appellant accepted and began her new position with LNE on June 11, 2007. According to Gourley, appellant's negative attitude continued in her position with LNE. (Gourley Affidavit ¶14.) Gourley indicated that appellant refused to cooperate with supervisors, read personal books during work, used the internet for personal purposes, and continuously "wandered off" and could not be found. (Gourley Affidavit ¶14.)

{¶5} On June 26, 2007, Gourley and Swegheimer met with appellant in response to appellant's complaint that she was unfairly criticized by a co-worker. (Gourley Affidavit ¶15-16.) At one point in the discussion, appellant said that she had been promised "growth" in the company and that it had been taken from her "unjustly." (Gourley Affidavit ¶16.) When Gourley reminded appellant that she voluntarily accepted the position with LNE, appellant became angrier and stated that she would not talk to Gourley or to anyone else in the office anymore. (Gourley Affidavit ¶16.) Gourley construed this statement as "a direct act of insubordination" and became concerned with appellant's ability to work for LNE. (Gourley Affidavit ¶17.) In the following weeks,

Gourley contacted Timothy Pitts, appellant's direct supervisor at LNE, to determine whether appellant's behavior had improved. Pitts reported that appellant maintained her negative attitude and refusal to accept direction. (Gourley Affidavit ¶18.) Upreach terminated appellant in July 2007. (Gourley Affidavit ¶19.)

{¶6} Appellant filed a complaint with the Ohio Civil Rights Commission ("OCRC") on July 17, 2007. The complaint alleged racial discrimination, gender discrimination, and retaliation. The OCRC investigated the charges and, on May 1, 2008, issued a report finding it "[p]robable that Respondent*fn1 has engaged in practices unlawful under Section 4112 of the Ohio Revised Code."

{¶7} In May 2009, appellant filed a complaint against appellees in the Franklin County Court of Common Pleas, alleging violations of R.C. Chapter 4112 and Title VII of the Civil Rights Act of 1964, Title 42 U.S.C. 2000e, et seq. Specifically, appellant claimed that appellees engaged in disparate-treatment discrimination on the basis of her race and gender and that appellees also engaged in retaliation. The complaint also sought damages for failure to pay overtime in violation of the Fair Labor Standards Act ("FLSA").

{¶8} Appellees moved for summary judgment, arguing, inter alia, that appellant failed to establish a prima facie case of sex discrimination, race discrimination, and retaliation. In support of the motion, appellees attached Gourley's affidavit, the document in which appellant acknowledged the dress code for the administrative assistant position, and Pitts' report recommending appellant's termination.

{ΒΆ9} Appellant filed a memorandum opposing appellees' motion for summary judgment. To support the allegations contained in her memorandum, appellant attached her own affidavit; however, the affidavit pertained only to her failure-to-pay- overtime claim under the FLSA. ...


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