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Silvers v. Clay Township Police Department

Court of Appeals of Ohio, Second District, Montgomery

July 27, 2018

TINA SILVERS Plaintiff-Appellant
CLAY TOWNSHIP POLICE DEPARTMENT, et al. Defendants-Appellees

          Civil Appeal from Common Pleas Court Trial Court Case No. 15-CV-73


          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


          FROELICH, J.

         {¶ 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 woman.[1]

         {¶ 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 hurts."

         {¶ 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 something?"

         {¶ 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 ...

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