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Bower v. Henry County Hospital

Court of Appeals of Ohio, Third District

July 1, 2013


Appeal from Seneca County Common Pleas Court Trial Court No. 10CV0649

John D. Franklin for Appellant

Jennifer J. Dawson and Jill K. Bigler for Appellees



{¶1} Plaintiff-Appellant, Meagan Bower, M.D., appeals the judgment of the Court of Common Pleas of Seneca County granting summary judgment in favor of Defendants-Appellees, Henry County Hospital ("HCH") and Kimberly Bordenkircher (collectively, "Appellees"), on her claim for gender discrimination under R.C. 4112.02. On appeal, Dr. Bower argues that the trial court erred in granting summary judgment because it improperly concluded that there was not an employer/employee relationship between her and Appellees. Dr. Bower also asserts that there is a genuine issue of material fact as to whether Appellees engaged in discriminatory practices when they terminated her employment. For the reasons that follow, we affirm the trial court's judgment.

{¶2} This matter arose from Dr. Bower's termination from her placement as an occupational health physician at HCH on March 30, 2007, which was also the day that her employment ended with the company that placed her at HCH, Ohio Occupational Health P.C, Inc. ("OOH"). Dr. Bower filed her original complaint on December 28, 2010, naming Appellees and OOH as defendants.[1] The original complaint asserted both a breach of contract and gender discrimination claim against all of the named defendants. After the filing of various motions to dismiss, however, Dr. Bower filed an amended complaint, with leave of court, on June 14, 2011. The amended complaint only asserted the breach of contract claim against OOH and reasserted Dr. Bower's gender discrimination claim against OOH and Appellees.

The Commencement of Dr. Bower's Employment

{¶3} OOH was a physician corporation that provided occupational health services to HCH. Dr. Robert Marshall served as president of OOH while Bordenkircher was HCH's chief executive officer. Pursuant to an April 2006 agreement executed by Dr. Marshall and Bordenkircher (the "2006 Agreement"), OOH was responsible for recruiting and hiring a physician to provide occupational health services to HCH. The 2006 Agreement explicitly provided that "nothing in this Agreement is intended to create an employer-employee relationship * * *." (Docket No. 53, Exhibit "2, " p. 2). However, it stated that the person recruited for the placement would "be joining * * * the HCH's medical staff * * *." (Id. at p. 4). Further, the 2006 Agreement allowed an HCH representative to be involved in the recruitment process and provided HCH "the right to request the removal of any * * * medical personnel provided." ( Id. .).

{¶4} Dr. Marshall subsequently recruited Dr. Bower, who executed a one-year employment agreement (the "Employment Agreement"). The Employment Agreement stated that "[t]he Employer [OOH] hereby employs the Employee [Dr. Bower] and the Employee hereby accepts such employment with the Employer * * *." (Docket No. 2, Exhibit "A, " p. 1). As part of this relationship, OOH agreed to place Dr. Bower in hospitals, businesses, and other health facilities to provide occupational health services. The Employment Agreement outlined that OOH was responsible for paying Dr. Bower's salary and providing her with certain enumerated employment benefits, such as vacation time, sick leave, and malpractice insurance. Additionally, it required Dr. Bower to "devote [her] full time, attention, and energy exclusively to the business of [OOH]" and "to devote [her] full time professional services [on] behalf of [OOH]." ( Id. . at p. 1, 15). After the execution of the Employment Agreement, OOH placed Dr. Bower with HCH's occupational health program, where she was responsible for providing health services not only at HCH but also at a variety of off-campus locations.

{¶5} In his deposition, Dr. Marshall discussed Dr. Bower's employment status under the Employment Agreement. He explicitly identified Dr. Bower as OOH's employee and said that she was never an employee of HCH. Further, Dr. Marshall often referred to HCH as "our customer, " meaning his and Dr. Bower's, when discussing Dr. Bower's performance. (Docket No. 52, p. 86, 95, 117). Nevertheless, Dr. Marshall also indicated that Bordenkircher had to approve Dr. Bower's hiring before she was placed at HCH. As part of his deposition, Dr. Marshall also identified several documents. One was a letter from OOH's Human Resources Manager to Dr. Bower that said "Welcome to [OOH]." (Docket No. 52, Exhibit "7"). Another was a pay stub issued by OOH to Dr. Bower showing its payment of her salary and the withholding of relevant taxes.

{¶6} Dr. Bower also discussed her employment status in her deposition. She admitted that OOH was responsible for terminating her, and identified the letter of termination that Dr. Marshall gave to her. The letter stated that "[d]ue to correspondence received from the administration at [HCH], the purpose of this correspondence is to provide you with written notice of termination of your employment with [OOH]." (Docket No. 51, Exhibit "I"). Despite this admission, Dr. Bower testified that she never knew the identity of her employer:

Q: At that time [during discussions with Dr. Marshall regarding her hiring], did [Dr. Marshall] explain to you that the employment relationship would be with [OOH]?
A: No. He said I had to meet Ms. Bordenkircher.
Q: When did you first come to realize that your employer would be [OOH]?
A: I never knew.
Q: Well, you signed an employment agreement with [OOH], right?
A: Yes, I had a contract.
Q: So at some point - well, maybe it was when you signed the contract you understood then that ...

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