Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No. 15-CV-73
GREGORY TURNER ATTORNEY FOR PLAINTIFF-APPELLANT
JEFFREY C. TURNER, DAWN M. FRICK, and CHRISTOPHER T. HERMAN
Attorney for Defendants-Appellees, Clay Township, Clay
Township Board of Trustees, Clay Township Police Department,
and John Van Gundy
LAWRENCE E. BARBIERE, and KATHERINE L. BARBIERE, Attorneys
for Anthony Scott, Defendant-Appellee
1} Tina Silvers appeals from a judgment of the
Montgomery County Court of Common Pleas, which granted
summary judgment in favor of Anthony Scott and John VanGundy
on Silvers's state-law claims of sex discrimination and
sexual harassment under R.C. Chapter 4112, common law sexual
harassment, and intentional infliction of emotional distress.
She also appeals from a judgment in favor of Clay Township
and the Board of Trustees of Clay Township (collectively, the
"Clay Township Defendants") on those same claims,
as well as a claim of negligent hiring and/or retention.
2} Silvers claims that the trial court erred in
granting summary judgment for all defendants on her claims of
common law sexual harassment and intentional infliction of
emotional distress. She also claims that summary judgment was
inappropriate for the Clay Township Defendants on her claim
of negligent hiring/retention. Silvers does not challenge the
summary judgment ruling on her statutory sexual harassment
and sex discrimination claims.
3} For the following reasons, the trial court's
judgments will be affirmed.
I. Background and Procedural History
4} Construing the evidence in the light most
favorable to Silvers, the record reveals the following facts.
5} Silvers graduated from the Great Oaks Police
Academy in December 1997. She worked for several police
departments and in private security positions before joining
the Clay Township Police Department (CTPD) in August 2007.
Silvers had previously dated Don Perkins, who was then-chief
of CTPD, and she joined CTPD as an auxiliary officer, an
unpaid position, at Chief Perkins's suggestion. Auxiliary
officers were required to undergo field training, and
then-Officer John VanGundy was assigned as Silvers's
Field Training Officer ("FTO"). At that time,
Silvers had a good relationship with VanGundy. Silvers did
not complete her field training due to medical issues, and in
December 2008, Silvers resigned because of an injury at
another job. Silvers considered her first term of employment
with CTPD to be a good experience.
6} Silvers remained friendly with VanGundy after her
resignation, and they occasionally texted and talked.
Although they never had a sexual relationship, at one point
in 2010, Silvers and VanGundy exchanged nude photographs;
VanGundy kept a printout of the photograph of Silvers in a
folder in his desk drawer at work, along with other sexually
explicit photos of other women with whom he claimed to have
had sex. According to VanGundy, he did not see or communicate
with Silvers for much of 2012.
7} Later in 2012, then-Detective VanGundy suggested
to Silvers that she return to work at CTPD. When VanGundy met
with Silvers in his office about her potential return to
CTPD, he pulled the folder containing the sexually explicit
photos out of his desk. He took his photo of Silvers from the
folder, said he now trusted her, but did not trust the other
women, and shredded Silvers's photo in her presence.
VanGundy also indicated that he could make sure that Silvers
got a job, but that she would have to "give it up"
if she were hired. VanGundy had previously told Silvers that
his "bucket list" included having sex with an older
8} After VanGundy's statements, Silvers applied
for a CTPD position. She understood that police officers were
hired by the Board of Trustees, but the Trustees generally
followed the recommendation of the chief.
9} Silvers was rehired by CTPD as an auxiliary
officer on October 10, 2012, and she was required to complete
a field training program; Officer Anthony Scott was assigned
as her FTO. According to Chief Perkins, field training had a
guideline of 240 hours of "on-the-road" training,
although some officers could complete their training in fewer
hours. Due to her prior employment with CTPD, Perkins
expected Silvers to complete her training in under 240 hours;
upon completing training, Silvers would be qualified for a
paid position. Silvers did not receive credit toward training
for doing paperwork around the office or other assignments
within the office.
10} Chief Perkins retired on December 29, 2012. By
that time, VanGundy had been promoted to Lieutenant, and
Scott had been promoted to Sergeant. Prior to Perkins's
departure, Silvers did not experience any significant
problems with Scott or VanGundy. Scott and VanGundy were
placed in charge until a new safety director was hired. John
Simmons was hired as Safety Director, serving a dual role as
Chief of Police, in February 2013.
11} Silvers alleged that, after Chief Perkins's
retirement, Scott and VanGundy began subjecting her to a
sexually hostile work environment in which she was treated
differently than male officers. Silvers further alleged that
Simmons joined Scott and VanGundy in this treatment and
allowed Scott and VanGundy to continue in it.
12} Silvers identified several instances where she
felt she was treated poorly by Scott and VanGundy. In March
2013, Silvers used the restroom at work and had blood in her
urine. Silvers informed VanGundy of the situation and that
she needed to go to the hospital. VanGundy told her that they
needed to tell her sergeant (Scott), and they located Scott
at the CTPD garage with Simmons and another officer. VanGundy
shouted to Scott that Silvers was "pissing blood"
and needed to go home. Scott responded, "Are you sure
it's not your monthly?" Silvers replied, "I
think I'd know the difference" and left for the
hospital. Subsequent to this event, Scott repeatedly
commented to Silvers, "My name is Tina and my pussy
13} In July or August 2013, new uniform pants were
ordered for the officers. Scott asked Silvers what size
panties she had ordered; Silvers responded with her pants
size. Around the same time, Scott asked Silvers, in front of
other officers, if she "wiped her ass" the same as
the rest of them, front to back or side to side, and whether
that was the "funk" he smelled.
14} Also in July or August 2013, Silvers was working
a traffic detail on Interstate 70 when a Jeep rear-ended a
flatbed truck and became sandwich between the truck and a
semi. Silvers notified the CTPD dispatcher and the Brookville
police department; Scott was the first to arrive. Scott did
not have his radio, and he grabbed Silvers's radio off
her chest and was "pulling [Silvers] around" until
Silvers gave her radio to him. Silvers was told to relocate
her cruiser and to go down the highway to move cones to get
traffic around the accident. When she was in the process of
moving cones, Scott "jump[ed] up and down" and was
"screaming and hollering." (Silvers Dep. at
144-145.) When Silvers went back to see what Scott wanted,
Scott told her to "get back in your f**king car. F**king
idiot." (Id. at 145.)
15} Scott tried to write-up Silvers for missing work
when her sister passed away from cancer and her absence had
been approved in advance. Silvers stated in her deposition
that she lost weight after her sister died of cancer. In her
affidavit, she attributes much of her 30-pound weight loss to
the harassment. After Silvers began losing weight, Scott
asked, "What's the matter, do you have cancer or
16} On September 5, 2013, Scott ordered Silvers to
pick up a prisoner in Preble County. When she arrived, she
had to wait for a Lewisburg unit to bring the prisoner.
However, contraband was found on the prisoner, so the
prisoner remained in Preble County and the pick-up did not
occur. Silvers drove back to CTPD, and Scott demanded she
perform other work without a meal break. Silvers took a meal
break, did a couple traffic stops and some vacation house
checks, and returned to CTPD. Upon her return, Scott screamed
at her that she "put all of this mileage on [his] car
and used [his] gas, and [she] didn't do traffic stops and
only did three vacation house checks and not seven or eight.
This is terribly unprofessional and unacceptable." Scott
further yelled that "this [was] f**king
unacceptable," that she "had enough time for this
shit," and "why don't you just tell me I'm
sorry, sir, and I'll fucking do better next time?"
(Silvers Dep. at 158-159.) Silvers tried to explain the
problems she encountered that evening, and Scott kicked a
trash can that hit her leg. Silvers stated in her deposition
that she was so upset about the trash can incident that she
forgot about mandatory training scheduled for September 11
for which she had signed up.
17} Silvers did not inform the Clay Township
Trustees about any of the incidents at CTPD. Silvers wanted
to report Scott's behavior to the Trustees, but was
denied the opportunity to do so. After Simmons was appointed
Safety Director, officers were required to submit a written
request to speak with Trustees on a pre-printed form that was
kept in the road room. Simmons testified in his deposition
that a written request addressed to him was required for any
officer to see the Trustees. While there was no written
policy requiring the requests to go through Simmons, he
confirmed that that was the practice in place. Silvers
completed the form twice requesting to meet with the
Trustees, once in March 2013 and once in July or August 2013.
Simmons told her she was denied from seeing the Trustees.
18} At some point after the highway accident,
Silvers interviewed with the Brookville Police Department.
(Silvers stated that she had told Scott and Simmons about the
opportunity, and they both encouraged her to go. Silvers Dep.
at 165.) According to Silvers, during the interview,
Brookville Chief of Police Doug Jerome "just come right
out and asked me -- he said, I just need to ask you this: Was
you that female on the highway?" Silvers was embarrassed
and admitted that she was, and she confided some of the
problems she was experiencing with CTPD. Silvers asserted,
however, that she did not disparage the department. She
further stated that she did not want Jerome to communicate
her statements to CTPD.
19} Sometime afterward, Simmons and Jerome rode
together to a meeting, and Jerome told Simmons that he
(Simmons) should have a conversation with Silvers about
things that were going on with her at work. Simmons described
this conversation as revealing that Silvers "disparaged
the [CTPD] field training to another police agency."
This prompted Simmons to approach Silvers and say "We
need to talk about some of the things that you're going
through but you're going to have to follow your chain of
command." (Silvers Dep.) According to Silvers, because
Silvers's "chain of command" was Scott and
Simmons, who had previously denied her from seeing the
Trustees, she responded, "It is what it is."
(Id. at 169-170.)
20} On September 16, 2013, Scott wrote a final
evaluation report, which was critical of Silvers. The same
day, he wrote a memorandum to Simmons requesting that Silvers
be "probationary released." Silvers was terminated
on September 18, 2013.
21} The next day, Silvers filed a complaint with the
Ohio Civil Rights Commission (OCRC), which was also filed
with the U.S. Equal Employment Opportunity Commission (EEOC).
On July 17, 2014, the OCRC issued a letter of determination,
finding that Silvers was released during probation for
performance issues. The OCRC found no probable cause for the
Commission to issue a complaint against CTPD for an unlawful
discriminatory practice. On October 7, 2014, the EEOC adopted
the findings of the OCRC.
22} Simmons separately investigated Scott's
conduct after Silvers filed her OCRC complaint. Simmons
believed Scott's behavior related to the highway accident
was "egregious enough" to warrant more than a
verbal or written warning. (Simmons Dep. at 78.) A hearing
was held before the Board of Trustees on October 15, 2013. It
was determined that Scott violated CTPD Policy and Procedure
1.02 (unbecoming conduct). Scott was demoted from ...