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Diller v. Miami Valley Hospital

Court of Appeals of Ohio, Second District, Montgomery

December 15, 2017

NOELLE DILLER Plaintiff-Appellant
v.
MIAMI VALLEY HOSPITAL Defendant-Appellee

         Civil Appeal from Common Pleas Court T.C. NO. 16-CV-38

          DAVID M. DUWEL, Attorney for Plaintiff-Appellant.

          KAREN T. DUNLEVEY, Attorney for Defendant-Appellee.

          OPINION

          DONOVAN, J.

         {¶ 1} This matter is before the Court on the November 14, 2016 Notice of Appeal of Noelle Diller. Diller appeals from the trial court's "Decision, Order and Entry Sustaining Defendant's Motion to Strike Exhibits to Plaintiff's Memorandum in Opposition to Motion for Summary Judgment and Sustaining Defendant's Motion for Summary Judgment." We hereby affirm the judgment of the trial court.

         {¶ 2} Diller filed a Complaint against Miami Valley Hospital ("MVH") on January 5, 2016, alleging "wrongful discrimination for sex discrimination, sexual harassment and retaliation predicated on violations of Sections 4112.02 and 4112.99 of the Ohio Revised Code." The Complaint provides that Diller "began her employment with Defendant MVH in September 2007 as a uniformed officer. In 2012 she was promoted to the position of Parking and Information Systems Security Manager." Diller alleged that she "performed her job in a very satisfactory manner and always received very favorable performance reviews." According to the Complaint, around July 2014, MVH "hired Franklin Davidson as its Director of Campus Police, " and Davidson became Diller's supervisor. Shortly after he was hired, Davidson "began to engage in actions believed by [Diller] to constitute sex discrimination and sexual harassment, " such as "offensive and inappropriate comments that were sexually charged, " according to Diller. The Complaint asserts that Diller reported Davidson's "unlawful conduct to [MVH's] senior management."

         {¶ 3} The Complaint asserts that Diller was instructed to observe Davidson and "to continue to bring any concerns forward." Diller alleged that she "learned of a potential sexual harassment incident involving Davidson and a female employee of [MVH] and began to investigate same so she could report back to management." According to the Complaint, once MVH discovered that Diller was investigating "this sexual harassment incident, Davidson and [MVH] began to falsely accuse [Diller] of workplace infractions which eventually lead to her wrongful termination on February 19, 2015."

         {¶ 4} MVH answered the Complaint on February 4, 2016, and on September 6, 2016, it filed "Defendant's Motion for Summary Judgment." MVH asserted in its motion that in the course of her employment, Diller reported to Davidson and Jeff James, the Director of Facility Services, and that she was terminated "for compromising the Hospital's security system by reprogramming a security camera for purposes of trying to catch Davidson spending too much time at the Information Desk." According to MVH, "Diller claims that she received an anonymous voicemail message from an unidentified caller who expressed a concern about the amount of time that Davidson was spending at the Information Desk near the employee entrance to the Hospital." MVH argued that Diller "took it upon herself to commandeer the Hospital's security surveillance system to try to catch [Davidson] in the act." Citing Diller's attached deposition, MVH asserted that "Diller was very clear in her testimony that she did not suspect that Davidson was engaging in any misconduct aside from wasting time at the Information Desk. Specifically, she testified that she was not investigating possible sexual harassment by Davidson." MVH asserted that the "alleged anonymous voicemail was never mentioned even when she was confronted about reprogramming the camera, in her statement provided to Human Resources in response to her suspension, or in her lawsuit."

         {¶ 5} MVH argued that the camera at issue, "Camera 304, " a "Pan Tilt Zoom" device, was in place "to monitor and record activities within the interior employee entrance" to the hospital and lobby area, which includes the Information Desk. MVH asserted that authorized security personnel could move the camera by means of a joystick to focus on specific areas within the camera's range. According to MVH, vagrants commonly loiter near the employee entrance, and the camera "was a critical component of the Hospital's surveillance system." MVH argued that Camera 304 was programmed with a "Home" setting, by means of which the camera would always return, after a short period of time, to focus on the employee entrance. The "Home" setting "was intended to protect the Hospital's employees entering and leaving work, especially given the known presence of vagrants in that area."

         {¶ 6} According to MVH, "on January 28, 2015, Diller entered the Security Dispatch [O]ffice and informed the two Dispatchers on duty (Tim Ahrns and Angela Cupp) that she wanted to reposition Camera 304 to focus on the Information Desk, " to see if she could catch Davidson "hanging around" there. MVH asserted that Diller "disengaged/unlocked the camera's 'Home' Setting and then used the joystick to move the camera to focus on the Information Desk." MVH argued that Ahrns and Cupp discussed Diller's actions and were uncomfortable with her moving the camera. According to MVH, "Cupp commented that she did not want to be part of Diller's 'petty vendetta' against Davidson, " and shortly after Diller left the Security Dispatch Office, Ahrns returned the camera's focus to the employee entrance. The following morning, according to the motion, Diller discovered that the camera's focus had been returned to the employee entrance five minutes after she moved it to the Information Desk the previous afternoon. MVH asserted that Diller advised Ahrns that Ahrns "could move Camera 304 wherever he wanted it, " and that Ahrns worked a half day on January 29, 2015 and then was off work until February 3, 2015.

         {¶ 7} According to MVH, between January 29 and February 3, 2015, "Diller asked Eric Gagnon (an employee of IPS - one of the Hospital's IT vendors) to go back into the Dispatch Office for her and reprogram Camera 304 to focus on the Information Desk AND to set that as the camera's new 'Home' setting." MVH asserted that Gagnon did so, and when Ahrns returned to work, he discovered that the camera had been "Homed" on the Information Desk. On February 4, 2015, according to MVH, Ahrns asked Diller about the repositioned camera, and she told him that "she would look into it." MVH asserted that on the same day, "Ahrns reported Diller's actions to Corporal Brad Goudy and Sargent [sic] Benjamin Mason of the Hospital's Campus Police Department." MVH asserted that on February 5, 2015, Diller "reprogrammed Camera 304 back to its original 'Home' setting, focused on the employee entrance, where it belonged."

         {¶ 8} According to MVH, Diller was suspended on February 6, 2015 "pending an investigation into the reprogramming of the security camera." MVH asserted that "Human Resources and the Security Department conducted an investigation and obtained statements from all witnesses, including Diller. * * * The statement by Diller contradicts her sworn deposition testimony in many respects." MVH asserted that Diller "fails to acknowledge (and implicitly denies) that she did, in fact, move the camera in an attempt to view Davidson at the Information Desk, " but that she admitted doing so in her deposition. Further, MVH asserted, in her initial statement Diller claimed that she told Gagnon that she did not want the camera focused on the Information Desk, but in her deposition she admitted that was a false statement. Finally, MVH asserted that Diller was terminated on February 19, 2015 "for compromising the Hospital's security camera surveillance system."

         {¶ 9} Regarding Diller's sexual harassment claim, MVH notes that in her deposition, "Diller recounts a story when she was helping Davidson with a computer issue. He was seated at his desk and she was standing behind him to visualize his computer monitor while on the phone with the Help Desk for him. He recited a famous quote, 'Behind every good man is a good woman.' " MVH asserted that the remark "was an acknowledgment of her superiority with the issue at hand and his need for help from her. * * * No reasonable jury would find this statement to be offensive or sexual in nature."

         {¶ 10} According to MVH, the "second comment that Diller claims was offensive was one that she initially said to Davidson and he merely repeated. The two were talking one day and Diller commented about how she needed to 'just pull up my big girl panties.' * * * Davidson apparently adopted her use of the phrase and repeated it on a few occasions." MVH asserted that "no reasonable juror would have found the use of this phrase to be offensive in this context."

         {¶ 11} Finally, MVH asserts that the "only other behavior by Davidson that Diller claims to be harassing is that he raised his eyebrows (which she referred to as 'Google eyes'), while asking 'hey, how are you?' Beyond that, Diller states that Davidson was 'demeaning' to employees. Diller testified that Davidson's demeaning behavior was directed to everyone in the office." According to MVH, "Diller is simply incapable of producing sufficient evidence to create a genuine issue of material fact that Davidson's conduct was either sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or that it was 'based on sex.' "

         {¶ 12} Regarding Diller's retaliation claim, MVH asserted that Diller "is unable to offer evidence to establish a prima facie case. First, Diller cannot offer any evidence that she engaged in protected activity." According to MVH, "Diller's retaliation claim appears to be based upon two alleged protected activities: (1) her report of inappropriate actions by Davidson to [MVH's] senior management * * * and (2) her investigation into the amount of time Davidson was spending at the Information Desk." MVH asserted that neither of these activities "constitute protected activity under R.C. §4112.02(I)."

         {¶ 13} MVH asserted that in September, 2014, MVH's Chief Operating Officer, Mikki Clancy, "solicited feedback from the Security Department regarding Davidson as part of his 90-day evaluation. Diller responded with critical opinions of Davidson, which are set forth in a collection of emails to Clancy. * * * Diller described Davidson as pompous, demeaning, unknowing, and disrespectful." MVH asserted that Diller indicated that "male coworkers also expressed similar concerns about Davidson. * * * Diller provided Clancy with examples, including the 'behind every good man is a good woman' incident. She did not, however, tell Clancy about Davidson's reuse of her term 'Big Girl Panties.' " According to MVH, "Diller did not describe anything that could even arguably be considered to be sexual harassment or unlawful discrimination - either in her emails to Clancy or in her deposition testimony."

         {¶ 14} MVH argued that the "focus of Diller's retaliation claim is found in her allegation that she was retaliated against for investigating Davidson. * * * In order for an investigation to be considered protected activity, however, the investigation had to relate to conduct that arguably violated R.C. §4112." MVH asserted that "Diller's rogue investigation had nothing at all to do with any even arguable discrimination or unlawful harassment."

         {¶ 15} MVH asserted that Diller's deposition testimony does not support the allegations in her Complaint. MVH argued that while in her Complaint, Diller asserted that she was terminated in retaliation for investigating a potential sexual harassment incident involving Davidson, in her deposition, she indicated that she was investigating "whether Davidson was spending too much time at the Information Desk, " and she denied that she was investigating sexual harassment. MVH asserted that to prove her retaliation claim, "Diller must show that she was acting in opposition to an unlawful discriminatory practice, " and that spending "too much time at the Information Desk is neither discriminatory nor unlawful."

         {¶ 16} MVH asserted that even "if Diller's investigation could somehow be considered 'protected activity, ' she cannot establish the second required element of a prima facie case - that the defendant knew of her protected activity. Diller testified that she did not tell anyone in management at the Hospital that she was investigating Davidson." MVH argued that Diller's written statement at the time of her suspension "says nothing about any investigation or any concerns involving Davidson."

         {¶ 17} MVH further asserted that even "if Diller were able to establish a prima facie case of retaliation, the Hospital had a legitimate non-retaliatory reason for terminating her, and that reason is not susceptible to a pretext challenge. Diller was terminated for compromising the Hospital's security camera surveillance system." MVH argued that although she "lied about it in the written statement she submitted at the time of her suspension, Diller now admits to everything." MVH argued that "Diller also admits that she did not even consider whether her actions in reprogramming the camera could undermine the Hospital's security systems. The Hospital was fully justified in terminating Diller for this reckless behavior."

         {¶ 18} Finally, MVH argued that Diller cannot establish that its reason for terminating her has no basis in fact, since she admitted reprogramming the camera, and that she "can offer no evidence that something else actually motivated the decision to terminate her." MVH asserted that "in order to prove that the grounds for her termination were insufficient to warrant termination, she would need to offer evidence that other similarly-situated employees engaged in similar misconduct but were not terminated. No such evidence exists."

         {¶ 19} Portions of Diller's deposition are attached to the motion for summary judgment, along with two exhibits thereto. Exhibit 1 is email correspondence between Diller and Mikki Clancy regarding Davidson's conduct, and Exhibit 2 is Diller's February 9, 2015 written statement that she provided to human resources upon her suspension. Also attached is the affidavit of Dispatcher Tim Ahrns, which provides as follows:

3) Late afternoon on January 28, 2015, Noelle Diller entered the Security Dispatch office and informed me and Angela that she wanted to reposition Camera 304 to focus on the Information Desk. Noelle told us that she wanted to see if she could catch Campus Police Chief Franklin Davidson hanging around the Information Desk.
4) Camera 304 had [been] programmed with a "Home" setting focused on the employee entrance to the Hospital. This "Home" setting was intended to protect the Hospital employees entering and leaving work, especially given the known presence of vagrants in that area.
5) Noelle disengaged/unlocked Camera 304's "Home" setting and used the joystick to move the camera to focus on the Information Desk.
6) When Diller left the Dispatch office, Angela and I discussed that we were both very uncomfortable with Noelle moving the camera away from its "Home" setting focused on the employee entrance. * * *
7) Shortly after Noelle left, I moved Camera 304 away from the Information Desk and re-focused it back to the employee entrance where it belonged. Since Noelle had disengaged the "Home" setting, the camera would remain focused on the employee entrance, where it belonged, until someone moved it again. The Security Dispatchers did not have the ability to change the "Home" setting on the camera.
8) I worked a half day on January 29, 2015 and was then off work until February 3, 2015. Noelle called me the morning of January 29th and told me that I could move Camera 304 wherever I wanted it.
9) When I returned to work on February 3, 2015, I discovered that Camera 304 had been moved back to and, this time, "Homed" on the Information Desk.
10) That same day, I reported Noelle's actions to Corporal Brad Goudy and Sargent [sic] Benjamin Mason of the Hospital's Campus Police Department. Her actions were very concerning to me. In my opinion, Noelle had compromised the Hospital's security system by reprogramming the camera, especially in light of her stated reason for doing it.

         {¶ 20} Finally, the affidavit of Bukari Miles, the Senior Human Resources Consultant for MVH, is attached to the motion for summary judgment. It provides as follows:

3) In my capacity as Senior Human Resources Consultant, I have had communications with Noelle Diller relative to Franklin Davidson. Although Ms. Diller criticized Chief Davidson's management style and competence, at no time prior to her termination did Ms. Diller ever allege that Chief Davidson engaged in any conduct which could be construed as unlawful discrimination or sexual harassment.
4) In February, 2015, Tim Ahrns, a Dispatcher in the Hospital's Security Department, escalated concerns with Hospital management regarding Noelle Diller's activities vis-à-vis the Hospital's security camera surveillance system.
5) I assisted with conducting an investigation into the concerns raised regarding Ms. Diller's activities vis-à-vis the Hospital's security cameral surveillance system.
6) On February 19, 2015, Ms. Diller was terminated for compromising the Hospital's security camera surveillance system.
7) A true and accurate copy of the termination documentation is attached hereto as Exhibit 1.

         {¶ 21} The attached "Corrective Action Form, Level 5: Discharge/ Termination, " details Diller's actions in repositioning the camera, and Ahrns' report of her conduct to Mason, and it provides that Diller's conduct "has served as a major intentional breach in the security of MVH hospital through its Security Camera Surveillance System." The form further provides in part:

         Immediate termination infractions

9. Corrective Action Policy; Engaging in activity detrimental to the operation of Premier [H]ealth or any of its affiliates.
12. Violation of hospital or departmental policies[.]
1S Deliberately making false statements against others.
General conduct violations
15. Violation of Department/unit or any organizational Policy or Protocol[.]
26. Abuse or mishandling of [P]remier [H]ealth financial resources (video security cameras)[.]

         {¶ 22} On September 20, 2016, a "Memorandum in Opposition to Defendants' Motion for Summary Judgment" was filed. Therein Diller asserted that her duties at MVH included "re-positioning cameras for [MVH] and that there remained numerous cameras [where] [she] re-positioned the camera, thus there was no safety issues [sic]." According to Diller, after receiving an anonymous voicemail that Davidson was "spending a substantial amount of time with an unnamed female employee during work hours" at the Information Desk, she chose to investigate whether inappropriate behavior was occurring before reporting that Davidson's behavior was inappropriate. Diller stated that she acted to "protect the hospital's employees and patients." She stated that she asked for the camera to be repositioned, and noticed that on the following day, it had had been "moved away from her desired location and actually homed to an entirely different viewing area." Diller stated that she then asked Eric Gagnon to "reprogram the camera to where she originally requested Tim [Ahrns] to reposition the camera."

         {¶ 23} Diller argued that she testified the repositioning of the camera did not create a safety issue because an employee badge was required to access the area where the camera was located. Diller asserted that she further testified that "there are at least 14 cameras, include[ing] another pan-tilt-zoom camera that was able to view this area." According to Diller, she "capably testified that she had added a home setting to a PTZ camera no less than twenty times during her employment with" MVH. Diller argued that "within only one week that [Davidson] became aware that [she] was attempting to spy on his lengthy visits to the Information Desk, [she] was terminated. [MVH], and especially Davidson, was aware that [Diller] believed that Davidson was doing something improper."

         {¶ 24} Regarding her sexual harassment claim, Diller argued that Davidson's harassment was "so unwelcome" to her that she sought intervention from Bukari Miles, Senior Human Resources Consultant for MVH. Diller argued that Miles denied that she did so in his affidavit, and that "this is a rather large question of fact for the jury to consider." Diller asserted that she emailed Mikki Clancy on September 22, 2014, stating that "her relationship with Davidson feels 'very volatile and [a] hostile work environment.' " According to Diller, "Davidson was allowed to continue his disparate treatment of [her] as acquiesced by Miles and Clancy."

         {¶ 25} Diller argued that Davidson's "nothing like a good woman standing behind a good man" statement was not a compliment, and that it "was more than likely a sexual innuendo implying that he enjoyed [her] being close to him in the work environment * * *." According to Diller, her "big girl panties" remark for her "meant to step up her game, [and] for Davidson, it was likely just a way for him to use the term panties and [Diller] in the same sentence." Diller argued that Davidson additionally "would make google (googly) eyes at her, " and that he refused to call her by name, "instead using nicknames that he alone thought appropriate." According to Diller, she testified regarding another incident "where, prior to a meeting regarding the placement of access card readers and security options for the placement of cameras on a new floor of the hospital, [Diller] was told to keep her mouth shut and take notes for Davidson." She argued that Davidson demeaned her in the meeting.

         {¶ 26} Regarding her retaliation claim, Diller asserted that the manner in which her termination "was ultimately effectuated, together with the temporal circumstances surrounding such unlawful actions, smack of the retaliatory conduct prohibited under Ohio law." Diller asserted that she was asked by Mikki Clancy "to report on Davidson and the apparent hostile work environment that had occurred within the hospital since Davidson began his employment." Diller asserted that due to the "do nothing policy that the hospital was actively participating in regards to Davidson's treatment, [she] took notice of the voice mail she received and sought to see for herself if Davidson was in fact doing something improper at the information desk." Diller asserted that she did not disclose her investigation "because she did not want to falsely accuse her supervisor of wrongdoing. * * * But upon Davidson's knowledge that [Diller] was spying on him, Davidson quickly investigated the matter and had [her] terminated."

         {¶ 27} Finally, Diller asserted that MVH has not demonstrated that repositioning the camera was not "under [her] duties, nor will it be able to show that anyone was in danger because of the repositioning." She asserts that MVH has not explained "why Davidson initially moved the camera away from the information desk, as it had always been." She argues that "retaliatory claims turn on the employer's reaction to * * * protected activity, and not on whether the employee correctly interpreted the workplace environment. Thus, whether it can be demonstrated that Davidson subjected [Diller] to lawfully recognized sexual harassment is irrelevant." Diller asserted that she "need only establish that she reasonably perceived such animus, attempted to address such belief and was terminated for doing so."

         {¶ 28} Attached to the memorandum is Diller's complete deposition (Exhibit A); a February 11, 2015 document entitled "Meeting with Angela Cupp, Support Dispatcher for Campus Police, " regarding "Review of Statement Submitted to Chief Franklin Davidson, " (Exhibit B); an email exchange between Mikki Clancy and Diller regarding Davidson's conduct (Exhibit C); and a "Position Summary" for the Parking and Security Information Systems Specialist position (Exhibit D).

         {¶ 29} On September 27, 2016, "Defendant's Motion to Strike Exhibits to Plaintiff's Memorandum in Opposition to Motion for Summary Judgment" was filed. MVH asserted that Exhibits B, C, and D "are not proper evidence under Civil Rule 56 and should be stricken and not considered."

         {¶ 30} On September 27, 2016, "Defendant's Reply Memorandum in Support of Motion for Summary Judgment" was filed. MVH argued that Diller's Memorandum in Opposition "is considerably different from the story told by [Diller] in her sworn deposition testimony." MVH asserted that in "her deposition, Diller adamantly denied that she was investigating possible sexual harassment, " and "also denied that Mikki Clancy in any way authorized her to investigate Davidson's conduct." MVH argued that contrary to Diller's assertion in her memorandum, there "is no evidence before this Court that Davidson was in charge of the investigation or even participated [in] the decision to terminate Diller." MVH asserted that Bukari Miles "acknowledged his communications with Diller relative to Franklin Davidson." According to MVH, there "is no evidence that Davidson singled out Diller or even females generally." MVH argued that Diller's "lying to investigators is further justification for her termination." Regarding Diller's characterization of the "do nothing policy" at the hospital, MVH asserted that "the evidence shows that Diller was specifically advised by Mikki Clancy that her criticisms of Davidson were being investigated by HR." MVH asserted that it is undisputed that a threat of violence existed at the employee entrance where Diller diverted the camera, "because it was a known refuge for vagrants." Finally, MVH argued that even "if Diller could reposition security cameras as part of her job duties, that certainly did not entitle her to manipulate the Hospital's IT vendor to commandeer the Hospital's security system to allow her to spy on her boss without interference from the Security Dispatchers."

         {¶ 31} On October 3, 2016, a "Memorandum in Opposition to Defendant's Motion to Strike Exhibits to Plaintiff's Memorandum in Opposition to Motion for Summary Judgment" was filed. Diller asserted that "the exhibits attached to its motion were provided by [MVH] during discovery in this matter and thus proper under Rule 56(C). [Diller] has attached Certification of Counsel as Exhibit A to affirm that the documents were served upon Plaintiff's counsel through discovery." The Certification of Counsel provides in part: "True and accurate copies of certain documents produced during the course of discovery * * * are set forth and identified herein below, which are materially relied upon in furtherance of Diller's opposition memorandum, " citing Exhibits A, B, C, and D.

         {¶ 32} In granting summary judgment in favor of MVH, the trial court noted that in her deposition, Diller "asserted that she was investigating whether Davidson was spending too much time at the Information Desk as suggested by an anonymous caller, but never stated that she was investigating a potential sexual harassment incident involving Davidson, as indicated in her Complaint"

         {¶ 33} Regarding MVH's motion to strike Diller's exhibits, the court concluded as follows:

Under Ohio law, documents merely attached to a summary judgment motion are not cognizable. The subject Exhibits do not fall within one of the categories of evidence listed in Civ.R. 56(C), namely pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, or written stipulations of fact, and, thus, those Exhibits can only be introduced as proper evidentiary material when incorporated by reference in a properly framed affidavit.
While Defendant submitted an affidavit, or Certification of Counsel, from David M. Duwel, the court fails to find that Duwel's affidavit concerning the Exhibits was sufficiently based upon personal knowledge or affirmatively showed Duwel to be competent to testify as to the matters stated and documents referenced therein. In his affidavit, Duwel failed to demonstrate that he possessed working knowledge of the specific record-keeping system that produced the documents or was able to vouch from personal knowledge of the record-keeping system that such records were kept in the regular course of business. Duwel failed to testify as to the regularity and reliability of the business activity involved in the creation of the records or that he was familiar with the compiling or retrieval of the records or that the records were compiled at or near the occurrence of each event by persons with knowledge of said events. Duwel also failed to state that he was able to compare the copy with the original and verify the copy is accurate, or explain why this could not be done. Furthermore, Duwel failed to properly incorporate by reference by failing to attach the documents or other evidence to his affidavit. Therefore, Defendant's Motion to Strike as to Plaintiffs Exhibit B, C, and D is hereby SUSTAINED, and the same are hereby STRICKEN.

         {¶ 34} Regarding Diller's claim of sexual harassment, the trial court concluded as follows:

In the instant action, [Diller] has not alleged a quid pro quo harassment claim, but, rather, has alleged that Davidson's conduct created a hostile work environment. The alleged harassment about which [Diller] complained consisted of the following occurrences: (1) an incident where Davidson stated, "nothing like a good woman behind a good man"; (2) uncounted incidents where, following [Diller's] reference to "just pull up my big girl panties, " Davidson repeated the phrase; and (3) an incident where Davidson made "google" eyes at [Diller]. However, construing the evidence in a light most favorable to [Diller] and accepting [Diller's] allegations as true, the court finds that reasonable minds could only come to one conclusion regarding [Diller's] sexual harassment claim - that being adverse to [Diller] - and [MVH] is entitled to judgment as a matter of law. Here, while it is undisputed that Davidson's alleged statements and actions were unwelcome to [Diller], [Diller] failed to set forth evidence demonstrating that Davidson's comments were based on sex or were sufficiently severe or pervasive to affect [Diller's] employment. First, the testimonial evidence provided by [Diller] suggested that Davidson's "demeaning" behavior was experienced by others in the department. Additionally, [Diller] was only able to recall a limited number of incidents where Davidson allegedly made comments that she believed were inappropriate, making the frequency of the comments very low. Additionally, there is no evidence that the comments were severe, as one comment referenced the saying, "Behind every good man is a good woman, " and the comments referenced [Diller's] own statement regarding "to just pull up my big girl panties." There is also no evidence that any of the occasions were physically threatening or humiliating, and there is no evidence that Davidson's comments interfered with [Diller's] work performance. In other words, there is no evidence that the actions of Davidson were so severe or pervasive enough to create an objectively hostile work environment. Therefore, [MVH's] Motion for Summary Judgment as to Plaintiff's sexual discrimination/sexual harassment claim is SUSTAINED.

         {¶ 35} Regarding Diller's claim of retaliation, the trial court found as follows:

Here, the basis of [Diller's] retaliation claim lies in her belief that she was terminated because she reported alleged inappropriate actions by Davidson to [MVH's] management and she was attempting to investigate the amount of time that Davidson was spending at the Information Desk. The evidence before the court demonstrates that [Diller] provided feedback to Mikki Clancy concerning her opinion regarding Davidson's integration in his new role and his general "demeaningness" to those in the department and that Clancy expressed gratitude for [Diller's] feedback in an email dated October 1, 2014. [Diller] also stated that others within the department felt similarly about Davidson's "demeaning" interaction with staff members. While [Diller] asserted that she was investigating a "potential sexual harassment incident involving Davidson" in her Complaint, she denied that she was investigating Davidson for sexual harassment during her deposition and simply stated that she was investigating the amount of time that Davidson was spending at the Information Desk.
Still, there is no evidence that [Diller] told anyone in management at [MVH] that she was investigating Davidson. There is also no evidence that [Diller] ever notified [MVH] regarding Davidson's alleged sexual harassment of [Diller], including Davidson's statement, "nothing like a good woman behind a good man" or his reference to [Diller's] saying "to just pull up her big girl panties." Additionally, [MVH] set forth evidence that [Diller] was terminated for compromising [MVH's] security camera and leaving the employee entrance to the Hospital without security surveillance for an extended period of time. It is also undisputed that [Diller] knew that the camera had been positioned to focus on the employee entrance; that vagrants loitered at the entrance; and that the Dispatchers had moved the camera back to its "Home" setting focused on the entrance after [Diller] tried to move it the first time. It is also undisputed that ...

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