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Niekamp v. Ohio Board of Embalmers and Funeral Directors

United States District Court, S.D. Ohio, Eastern Division

September 3, 2019

VANESSA NIEKAMP, Plaintiff,
v.
OHIO BOARD OF EMBALMERS AND FUNERAL DIRECTORS, Defendant.

          Vascura Magistrate Judge.

          OPINION AND ORDER

          JAMES L. GRAHAM United States District Judge.

         Plaintiff, Vanessa Niekamp (“Plaintiff”), brings this action against her former employer, the Ohio Board of Embalmers and Funeral Directors (“Defendant” or the “Board”). This matter is before the Court on the Motion for Summary Judgment of Defendant Ohio Board of Embalmers and Funeral Directors. (Def's. Mot. Summ. J., ECF No. 35.) Defendant moves for summary judgment on Plaintiff's claims for 1) gender discrimination related to her alleged constructive discharge; 2) a gender-based hostile work environment; and 3) retaliation under Title VII of the Civil Rights Act of 1964 and Chapter 4112 of the Ohio Revised Code. (Id. at 3567.) For the reasons that follow, Defendant's motion is GRANTED.

         I. BACKGROUND

         In April 2012, Plaintiff was appointed as Executive Director of the Ohio State Board of Funeral Directors and Embalmers, the state agency charged with licensing and regulating the Ohio funeral industry. Ohio Rev. Code § 4717.02; (Pl.'s Mem. Opp. Def.'s Mot. Summ. J., ECF No. 38 at 3622.) Plaintiff was an “employee” as defined in Ohio Rev. Code § 124.01(F). As Executive Director, Plaintiff served at the pleasure of the Board. Ohio Rev. Code § 4717.03(B).

         On September 21, 2014, The Columbus Dispatch (the “Dispatch”) featured a front-page news article on prepaid funeral service fraud in Ohio.[1] (ECF No. 30-2 at 1656.) The article criticized Plaintiff for her refusal “to answer any questions about how funeral home inspections are conducted or how . . . ‘pre-need' contracts are inspected or audited.” (Id. at 1657.) The Dispatch described the Plaintiff as “unwilling” to respond to the reporter's questions and stated, “[i]t's unclear whether the [Board] is taking steps to prevent fraud or trying to find ways to discover it more quickly.” (Id.)

         The day after the Dispatch article was published, Plaintiff received a phone call from then-Governor Kasich's office. (Niekamp Dep. 104, ECF No. 30 at 1356.) Staff member, Jai Chabria, summoned Plaintiff to his office to discuss the Dispatch article. (Id.) Mr. Chabria was very upset about the article and told Plaintiff to “get control of your board.” (Id. at 1356, 1359.)

         Under Ohio Rev. Code § 4717.02(A), the governor appoints the seven members of the Board. The statute provides that two of the Board's members “shall represent the public.” Id. Three months after the publication of the Dispatch article, Governor Kasich appointed Thomas Taneff (“Taneff”) to prioritize the public interest in combating prepaid funeral fraud in Ohio. (Taneff Dep. 8:7-10, 12:13-17, ECF No. 34 at 2981, 2985.) Taneff stated that he was asked to join the Board, “because of the preneed funeral fraud problem in Ohio.” (Id. at 2981.) Taneff soon focused on the Dispatch article and the events leading up to its publication. (See Id. at 2988.)

         A. Taneff's Investigation of the Dispatch Article

         In January 2015, Taneff questioned Plaintiff about her unwillingness to respond to Dispatch reporter, Jennifer Smith Richards's (“Richards”), questions concerning the Board's efforts to address the prepaid funeral services crisis. (Niekamp Dep. 111:12-24, ECF No. 30 at 1363.) Plaintiff stated that she had been cooperative with Richards, and that Richards's article did not accurately reflect the content of their communication. (ECF No. 34 at 2993-94; ECF No. 30 at 1356.) Taneff initially sided with Plaintiff and promptly contacted Richards to discuss the issue. (ECF No. 34 at 2993; ECF No. 30 at 1365.)

         On January 9, 2015, Richards forwarded her previous email exchange with Plaintiff to Taneff. (ECF No. 30-4 at 1659.)

         As relayed by Richards, an email from Plaintiff to Richards dated September 8, 2014 reads as follows:

I am unwilling to comment on how our inspectors examine pre-need contracts, or conduct pre-need audits. As far as “scope of pre-need fraud issues”, we can provide any document necessary to address a public records request, as we have in the past; but again I am unwilling to comment on the “scope”, nor am I sure how you are defining “scope”.
Thank you again for your continued interest, and please let us know if you have a request for a public record we can address.
(Id. at 1660.)

On January 14, 2015, Plaintiff provided Taneff with her version of the September 8, 2014 email, which differed remarkably. (Id. at 1662.)

Plaintiff's version of the September 8, 2014 email read:
I am unwilling to comment on how our inspectors examine pre-need contracts, or conduct pre-need audits, as it could seriously impead [sic] our ability to identify fraud in the future if published. As far as “scope of pre-need fraud issues”, we can provide any document necessary to address a public records request, as we have in the past; but I may be able to comment on the “scope”, but will first need to know how you are defining “scope”.
Thank you again for your continued interest, and please let us know if you have a request for a public record we can address. I can make myself available, just let me know when.
(Id. at 1663.) (emphasis added)

         Plaintiff denied altering the email. (Niekamp Aff. ¶ 15, ECF No. 30-9 at 1683.) Taneff called Richards and accused her of lying, which Richards adamantly denied. (ECF No. 34 at 2995.) Taneff then spoke with Dispatch editor, Alan Miller (“Miller”), who maintained the reporter's innocence and welcomed a subpoena into the Dispatch's server to verify the newspaper's position. (Id. at 2995-96, 3330.) After speaking with Miller, Taneff was convinced that it was Plaintiff who had altered the email in an effort to make herself appear more responsive to Richards's inquiry. (Id. at 3024-26.) Taneff now viewed Plaintiff as “deceptive and dishonest.” (Taneff Dep. 184:11-12, ECF No. 34 at 3157.)

         Taneff's opinion of Plaintiff's ability to effectively lead the Board quickly deteriorated. (Id. at 260:9-15, 3233.)

         B. The 2015 Board Meetings

         Plaintiff admits Taneff “critiqued [her] for her alleged lack of action in addressing pre-need funeral fraud.” (ECF No. 38 at 3647.) On February 4, 2015, Plaintiff documented a conversation wherein Taneff communicated to her that pre-need fraud should be her top priority, and if he and Plaintiff failed to “do something to address the preneed issue, ” that their “neck[s] [were] on the line.” (ECF No. 34-5 at 3338.) Taneff urged Plaintiff to add pre-need fraud to each meeting agenda. (Id.) That same month, Taneff requested an executive session for the next Board meeting to “consider . . . charges or complaints against a public employee.” (ECF No. 34-9 at 3358.)

         At the March 2015 Board meeting, Taneff moved to enter into executive session per Ohio Revised Code § 121.22(G)(1) to discuss Plaintiff's employment. (ECF No. 30-53 at 1808.) Only one other board member supported Taneff's motion. (Id.) The motion failed. (Id.)

         Taneff's opinion never wavered. Prior to the July 2015 meeting, another Board member claims Taneff told him, “[Plaintiff] needed to go.” (Chandler Decl. ¶ 4, ECF No. 38-1 at 3653.)

         On July 22, 2015, the Ohio Attorney General's Office drafted a letter to the Board “address[ing] an issue that arose during your July 20, 2015 meeting.” (ECF No. 30-56 at 1817). The letter expressed the Ohio Attorney General's concern that Plaintiff, a non-attorney, was engaged in the unauthorized practice of law by negotiating settlement agreements on behalf of the Board. (ECF No. 30-56 at 1817-21.) On July 23, 2015, Plaintiff requested an advisory opinion on her alleged unauthorized practice of law from the Supreme Court of Ohio's Board on the Unauthorized Practice of Law. (ECF No. 34-13 at 3370.) Taneff later questioned whether Plaintiff apprised the Board of her request for an advisory opinion. (ECF No. 34-18 at 3534.) On August 21, 2015, Plaintiff claimed she left Taneff a detailed voice message on July 23, 2015 at 1:55 p.m., informing him of the issue and requesting a call back. (Id.)

         Taneff never received the message, accused Plaintiff of lying, demanded an investigation into the veracity of her claim, and on August 24, 2015, subpoenaed his phone records. (ECF No. 34-16 at 3469; ECF No. 34-18 at 3532, 3539-42.) Taneff's phone records indicated he did not receive any phone calls from either the Board's office or Plaintiff's personal cell phone during the time specified by Plaintiff. (ECF No. 34-18 at 3539.)

         i. Taneff's Offensive Epithets at Board Meetings

         For several months, Taneff addressed fellow Board member, Robert Wasko (“Wasko”), as “peachka” at the beginning and end of every board meeting. (Wasko Dep. 149, ECF No. 32 at 1262.) Taneff's statements to Wasko included, “Hello, peachka. Goodbye, peachka. See you, peachka.” Wasko considered Taneff's use of “peachka” to be “endearing, ” as the two board members shared a mutual friend who also used that term. (Wasko Dep. 148-49, ECF No. 32 at 2462-63.) Plaintiff was unfamiliar with the term “peachka” and later asked Wasko what it meant. (Am. Compl. ¶¶ 12-13, ECF No. 11 at 581.) In August 2015, Wasko told Plaintiff that “peachka” was a Macedonian/Eastern European word used to describe female genitalia. (Wasko Dep. 147, ECF No. 32 at 2460.) Plaintiff soon filed several complaints against Taneff. (Niekamp Dep. 195, ECF No. 30 at 1447.)

         C. Plaintiff Complains About Taneff

         On August 20, 2015, Plaintiff filed a complaint against Taneff with numerous state agencies, including the Ohio Department of Administrative Services (“DAS”). (Niekamp Aff. ¶ 7, ECF No. 30-9 at 1681.) Plaintiff's email entitled, “Help with Harassment” claimed that Taneff had “systemically threatened, demeaned, and made demands of [her] since joining the board.” (ECF No. 34-15 at 3459.) Plaintiff further relayed that Taneff's “personal malice and attempts to force [her] to quit . . . made [her] fearful and anxious.” (Id.) ...


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