Harmon v. YWCA Greater Cleveland

Filing 21

Opinion and Order. Defendant's Motion for Summary Judgment (Related doc # 18 ) is granted in part and denied in part. Judge Christopher A. Boyko on 3/9/2017. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHARON HARMON,
Plaintiff,

Vs.
YWCA OF GREATER CLEVELAND,
Defendant.

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CASE NO.1:15CV00926
JUDGE CHRISTOPHER A.
BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant YWCA of Greater Cleveland’s
(“YWCA”) Motion for Summary Judgment. (ECF # 18). For the following reasons, the
Court grants, in part and denies, in part Defendant’s Motion.
According to her Complaint, Plaintiff Sharon Harmon (“Harmon”) was hired for
the position of UPK Coordinator/Lead Teacher with YWCA on November 5, 2012.
Harmon worked in an administrative capacity as support staff for the Administrator.
Because she lacked any decision making authority, Harmon contends she was entitled to
overtime pay at the rate of one and one-half times her weekly pay for any hours worked
over forty hours in a given week. Harmon alleges YWCA misclassified her as “exempt”
to avoid paying her the statutory rate of overtime pay as mandated by the Fair Labor
Standards Act (“FLSA”).
In June of 2014, the Administrator resigned, leaving the facility without anyone in
charge with the appropriate State Licensure. YWCA approached Harmon about acting as
the Interim Administrator because Harmon had the appropriate State Licensure for the

facility. YWCA placed Harmon’s name on the State of Ohio’s records as its primary
licenced agent for the YWCA facility, however, Harmon retained her administrative
duties and was never given the duties of the Administrator nor was she given additional
compensation. In September 2014, YWCA hired a new Administrator but the newly
hired Administrator lacked the appropriate State Licensure so YWCA kept Harmon’s
name on the State Licensure. Plaintiff orally complained to her immediate supervisor
that she thought YWCA was acting fraudulently by hiring an Administrator who lacked
the appropriate licensure while keeping Harmon’s name on the State Licensure as
Administrator. When her immediate supervisor failed to respond to Plaintiff’s concerns,
she inquired of others as to what she should do. The following day, Harmon was issued a
written reprimand for her activities, including: spreading malicious gossip, creating
discord, interfering with another employee on the job, restricting work output and
encouraging others to do the same. Shortly thereafter, YWCA terminated Harmon’s
employment for allegedly falsifying information on a scholarship application.
Plaintiff alleges claims for violations of the FLSA for unpaid overtime,
Retaliatory Discharge in violation of the Ohio Whistleblower Statute and Wrongful
Termination in Violation of Ohio Public Policy.
YWCA moves for summary judgment on all Harmon’s claims. According to
YWCA, Harmon was added to the State Licensure as Administrator because Harmon
agreed and because Harmon had the requisite license. However, merely being added to
the State Licensure as Administrator does not, according to YWCA, mean Harmon was a
director, administrator or that she was qualified as such. After being added to the State

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Licensure, Harmon continued in her administrative duties, although she took on
additional responsibilities over the course of her employment.
In August of 2014, Harmon’s title was changed to Compliance Coordinator.
Sometime in November 2014, YWCA’s Vice-President of Programs and Operations
learned Harmon had provided false and/or inaccurate information on her scholarship
application. Harmon represented on the scholarship application that she was the
Assistant Director of the YWCA Early Learning Center (“ELC”). No such position
existed at the YWCA. Upon discovering this, YWCA terminated Harmon’s
employment.
LAW AND ANALYSIS
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
See Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994); and the court must view
the facts and all inferences in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the
movant presents evidence to meet its burden, the nonmoving party may not rest on its
pleadings, but must come forward with some significant probative evidence to support its
claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at 1347. This Court does not
have the responsibility to search the record sua sponte for genuine issues of material fact.
Betkerur v. Aultman Hosp. Ass’n., 78 F.3d 1079, 1087 (6th Cir. 1996); Guarino v.

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Brookfield Township Trs., 980 F.2d 399, 404-06 (6th Cir. 1992). The burden falls upon
the nonmoving party to “designate specific facts or evidence in dispute,” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party fails to
make the necessary showing on an element upon which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether
summary judgment is appropriate depends upon “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Amway Distribs. Benefits Ass’n v. Northfield
Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
FLSA violations
Under the FLSA, an employee who works more than forty hours in a work week
must receive overtime compensation at a rate of not less than one and one-half times the
regular rate. 29 U.S.C. § 207(a)(1). Section 13(a) of the FLSA exempts certain
positions from the overtime pay requirements, including executive, administrative, or
professional positions. 29 U.S.C. § 213(a)(1). “Congress did not define these
exemptions, but delegated authority to the Department of Labor (DOL) to issue
regulations to define and delimit these terms.” Foster v. Nationwide Mut. Ins. Co., 710
F.3d 640, 642 (6th Cir. 2013). “The current regulations, reissued and streamlined with
minor amendments in 2004, provide that the administrative exemption covers employees:
(1) Compensated ... at a rate of not less than $455 per week ...; (2) Whose primary duty
is the performance of office or non-manual work directly related to the management or
general business operations of the employer or the employer's customers; and (3) Whose

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primary duty includes the exercise of discretion and independent judgment with respect
to matters of significance.” 29 C.F.R. § 541.200(a).
“The exemption is to be narrowly construed against the employer, and the
employer bears the burden of proving each element by a preponderance of the evidence.”
Foster at 642 citing Renfro v. Indiana Mich. Power Co. (Renfro II), 497 F.3d 573, 575–7
(6th Cir.2007).
The administrative exemption is further defined in 29 CFR § 541.201, which
reads:
(a) To qualify for the administrative exemption, an employee's primary
duty must be the performance of work directly related to the management
or general business operations of the employer or the employer's
customers. The phrase “directly related to the management or general
business operations” refers to the type of work performed by the
employee. To meet this requirement, an employee must perform work
directly related to assisting with the running or servicing of the business,
as distinguished, for example, from working on a manufacturing
production line or selling a product in a retail or service establishment.
(b) Work directly related to management or general business operations
includes, but is not limited to, work in functional areas such as tax;
finance; accounting; budgeting; auditing; insurance; quality control;
purchasing; procurement; advertising; marketing; research; safety and
health; personnel management; human resources; employee benefits; labor
relations; public relations, government relations; computer network,
internet and database administration; legal and regulatory compliance; and
similar activities. Some of these activities may be performed by
employees who also would qualify for another exemption.
(c) An employee may qualify for the administrative exemption if the
employee's primary duty is the performance of work directly related to the
management or general business operations of the employer's customers.
Thus, for example, employees acting as advisers or consultants to their
employer's clients or customers (as tax experts or financial consultants, for
example) may be exempt.

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29 CFR § 541.202 lists a number of factors for the Court to consider when
determining whether an employee is an exempt employee under the administrative
exemption to the FLSA overtime pay requirement.
(a) To qualify for the administrative exemption, an employee's primary
duty must include the exercise of discretion and independent judgment
with respect to matters of significance. In general, the exercise of
discretion and independent judgment involves the comparison and the
evaluation of possible courses of conduct, and acting or making a decision
after the various possibilities have been considered. The term “matters of
significance” refers to the level of importance or consequence of the work
performed.
(b) The phrase “discretion and independent judgment” must be applied in
the light of all the facts involved in the particular employment situation in
which the question arises. Factors to consider when determining whether
an employee exercises discretion and independent judgment with respect
to matters of significance include, but are not limited to: whether the
employee has authority to formulate, affect, interpret, or implement
management policies or operating practices; whether the employee carries
out major assignments in conducting the operations of the business;
whether the employee performs work that affects business operations to a
substantial degree, even if the employee's assignments are related to
operation of a particular segment of the business; whether the employee
has authority to commit the employer in matters that have significant
financial impact; whether the employee has authority to waive or deviate
from established policies and procedures without prior approval; whether
the employee has authority to negotiate and bind the company on
significant matters; whether the employee provides consultation or expert
advice to management; whether the employee is involved in planning
long- or short-term business objectives; whether the employee investigates
and resolves matters of significance on behalf of management; and
whether the employee represents the company in handling complaints,
arbitrating disputes or resolving grievances.
(c) The exercise of discretion and independent judgment implies that the
employee has authority to make an independent choice, free from
immediate direction or supervision. However, employees can exercise
discretion and independent judgment even if their decisions or
recommendations are reviewed at a higher level. Thus, the term
“discretion and independent judgment” does not require that the decisions
made by an employee have a finality that goes with unlimited authority
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and a complete absence of review. The decisions made as a result of the
exercise of discretion and independent judgment may consist of
recommendations for action rather than the actual taking of action. The
fact that an employee's decision may be subject to review and that upon
occasion the decisions are revised or reversed after review does not mean
that the employee is not exercising discretion and independent judgment.
For example, the policies formulated by the credit manager of a large
corporation may be subject to review by higher company officials who
may approve or disapprove these policies. The management consultant
who has made a study of the operations of a business and who has drawn a
proposed change in organization may have the plan reviewed or revised by
superiors before it is submitted to the client.
(d) An employer's volume of business may make it necessary to employ a
number of employees to perform the same or similar work. The fact that
many employees perform identical work or work of the same relative
importance does not mean that the work of each such employee does not
involve the exercise of discretion and independent judgment with respect
to matters of significance.
(e) The exercise of discretion and independent judgment must be more
than the use of skill in applying well-established techniques, procedures or
specific standards described in manuals or other sources. See also §
541.704 regarding use of manuals. The exercise of discretion and
independent judgment also does not include clerical or secretarial work,
recording or tabulating data, or performing other mechanical, repetitive,
recurrent or routine work. An employee who simply tabulates data is not
exempt, even if labeled as a “statistician.”

(f) An employee does not exercise discretion and independent judgment
with respect to matters of significance merely because the employer will
experience financial losses if the employee fails to perform the job
properly. For example, a messenger who is entrusted with carrying large
sums of money does not exercise discretion and independent judgment
with respect to matters of significance even though serious consequences
may flow from the employee's neglect. Similarly, an employee who
operates very expensive equipment does not exercise discretion and
independent judgment with respect to matters of significance merely
because improper performance of the employee's duties may cause serious
financial loss to the employer.

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FLSA exemptions are “affirmative defense[s] on which the employer has the
burden of proof.” Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974).
While the Sixth Circuit has observed that an employer “must establish through ‘clear and
affirmative evidence’ that the employee meets every requirement of an exemption,’” Ale
v. TVA, 269 F.3d 680, 691 (6th Cir. 2001), the burden of proof on an employer is not
heightened; rather, an employer has the burden of establishing the elements by a
preponderance of the evidence. Renfro, 497 F.3d at 576.
According to YWCA, the undisputed facts demonstrate Harmon’s job duties fall
clearly within the administrative exemption. Harmon was the Universal PreKindergarten (“UPK”) Coordinator/Lead Teacher and Compliance Coordinator. She
earned a salary of $34,000 per year/$654.85 per week. She understood this salary was
meant to compensate for all her working hours at YWCA. Harmon on deposition admits
she was responsible for auditing staff and client files at the YWCA’s ELC to ensure
compliance with governmental regulations (Harmon depo pg. 82-83). She admits she
maintained staff and client files for the ELC and performed data collection. (Id at 110,
153), government relations and accounting and financial responsibilities. (Id at 78, 79
and 112-13). Thus, according to YWCA, based on her own descriptions of her job
duties, Harmon met most of the functional requirements of the administrative exemption
under 29 CFR § 541.201(b).
YWCA contends Harmon’s job duties further required the exercise of discretion
and independent judgment regarding matters of significance per her own testimony. (Id.
at 97-98). She was responsible for knowing all applicable local, state and federal

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regulations for the ELC and conveying that information to other YWCA employees to
ensure compliance. (Id. at 78).
Plaintiff prepared and sent letters to parents informing them of the specific
governmental requirements for UPK compliance; coordinated directly with government
officials regarding the social/emotional screening of children at the ELC; ensured
children and staff files were updated regarding training; prepared reports and
spreadsheets to ensure staff attended required training and conducted training of staff.
(Id. at 82-83). Therefore, given the totality of her administrative job duties, YWCA
argues Harmon was properly classified as exempt.
YWCA also believes Harmon’s job duties fall under the Educational
Administrative Exemption. Pursuant to 29 CFR § 541.204, employees are exempt from
the FLSA’s overtime pay requirements if their “primary duty is performing
administrative functions directly related to academic instruction or training in an
educational establishment or department or subdivision thereof.” “The term ‘educational
establishment’ means an elementary or secondary school system, an institution of higher
education or other educational institution.” (Id.)
YWCA points to Harmon’s deposition testimony wherein she described her UPK
Coordinator and Compliance Coordinator duties as “primarily administrative support for
the teachers.” (Id at 80-83, 89, 99, 105). YWCA argues its ELC is an educational
system because its curriculum is regulated and approved by the State of Ohio.
Educational administrative functions under the CFR include responsibility for the
curriculum, quality and method of instruction, measuring and testing potential and

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achievement of students and other aspects of teaching. According to YWCA, Harmon’s
job duties fall within the educational administrator exemption as well.
YWCA also disputes Harmon’s representation that YWCA failed to keep accurate
records of her hours worked and wages earned. YWCA asserts that Harmon was
required to log in and out of a computer when she arrived at work and when she left so
that YWCA could track her hours. YWCA’s Vice-President of Programs and Operations,
Teresa Sanders, testified that Exhibit 8 to Harmon’s deposition was an accurate record of
Harmon’s work hours and further testified that YWCA kept complete and accurate hours
of all employees regardless of their exempt or non-exempt status.
Harmon raises a threshold argument that YWCA never affirmatively plead the
administrative exemption in its Answer and therefore, has waived such a defense.
According to Harmon, the Sixth Circuit requires pleading FLSA exemptions with
specificity and in the absence of such specificity a Defendant waives the right to assert
the defense.
Even if they have not waived the exemption defense, Harmon argues YWCA
cannot establish by a preponderance of the evidence she is an exempt employee because
Harmon disputes the YWCA’s descriptions of her job duties, claiming the administrative
exemption does not apply to the work she performed because the majority of the work
was not administrative.
Failure to Plead Exemption
The Supreme Court has held “FLSA overtime exemptions are ‘affirmative
defense[s] on which the employer has the burden of proof.’” Corning Glass Works v.

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Brennan, 417 U.S. 188, 196–97,(1974). “Defendants must generally claim an exemption
in their first responsive pleading or we will consider the defense forfeited.” Hopkins v.
Chartrand, 566 F. App'x 445, 448 (6th Cir. 2014) “The purpose of Rule 8(c)'s pleading
requirement is to give the opposing party notice of the defense and a chance to rebut it.”
Id.
Having reviewed the pleadings, motions and briefs, the Court finds YWCA has
not waived the administrative exemption defense. Although it did not plead a specific
FLSA exemption in its Answer, YWCA did assert generally the affirmative defense of
exemption under the FLSA as Affirmative Defense #6 in its Answer. Furthermore,
Plaintiff’s Complaint alleges Harmon was hired in an administrative capacity and she
was hired to be administrative staff. (Complaint 9, 17). In its Answer, YWCA asserted
Harmon was properly classified as exempt under the FLSA. (Answer 9, 13, 17-20).
Harmon never moved to strike or dismiss the affirmative defense as insufficient.
Furthermore, in discovery, YWCA repeatedly asked Harmon in deposition about her
exempt status and about all the relevant aspects of her job duties in relation to the
administrative exemption. YWCA specifically asserted the administrative exemption in
its Supplemental Discovery Response weeks prior to Harmon’s deposition of YWCA’s
representatives. Harmon never requested additional time to conduct discovery. Harmon
had the opportunity long before summary judgment briefing was due to explore the
substance and bases for the exemption and did not. Harmon cannot now complain that
the defense is waived and the Court finds no waiver has occurred. As YWCA correctly
points out the Sixth Circuit in Hopkins held, “[T]he failure to raise an affirmative

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defense by responsive pleading does not always result in a forfeiture of the defense –
such as when the plaintiff receives notice of the affirmative defense by some other
means.” Hopkins, 566 Fed. Appx. at 449. Therefore, the Court will analyze the defense.
In order to satisfy the requirements of the administrative exemption, YWCA must
prove by a preponderance of the evidence that Harmon was compensated at a rate not less
than $455 a week. Harmon does not dispute that her salary of $34,000 a year exceeds
$455 a week.
YWCA must next establish that Harmon’s “primary duty is the performance of
office or non-manual work directly related to the management or general business
operations of the employer or the employer's customers...” “While the question of how
employees spend their working time is a question of fact, [t]he question whether their
particular activities excluded them from the overtime benefits of the FLSA is a question
of law ... governed by the pertinent regulations promulgated by the Wage and Hour
Administrator.” Renfro v. Indiana Michigan Power Co., 233 F. Supp. 2d 1174, 1180
(W.D. Mich. 2002), aff'd, 370 F.3d 512 (6th Cir. 2004).
Under the relevant CFR’s, courts are given substantial guidance on analyzing the
exemptions. To qualify for the administrative exemption, an employee’s primary duty
must be performance or work directly related to the management or general business
operations of the employer or the employer’s customers. This includes tax, finance,
accounting, budgeting, auditing, insurance, purchasing, procuring, marketing, research,
personnel management, legal and regulatory compliance. The position also requires the
exercise of discretion and independent judgment with respect to matters of significance.

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YWCA relies almost entirely on the deposition testimony of Harmon regarding
her job duties. When asked the basic functions of her position as UPK coordinator/lead
teacher, Harmon responded as follows:
Q. Is it fair to say that the basic function of the UPK coordinator/lead teacher was
government reporting and compliance?
A. Yes.
(Harmon depo. Pg 78.)
Harmon testified that up until June 2013, the following list of job duties and
responsibilities accurately reflects her duties at the YWCA:
governmental program data entry requirements; assisting with implementation of
curriculum; monitor billing, insure accurate record-keeping and attendance; coordinate
and schedule state required staff training; auditing and maintaining ELC participant and
staff files; monitoring and maintaining County swipe card system; attend all ELC
external and internal meetings; develop and monitor UPK family engagement activities;
coordinate student assessment activities; maintain SUTQ star rating and serve as lead
teacher during staff absences. (Id at 75).
Following June 2013, Harmon testified she was given additional compliance
duties.
Harmon further testified that programs such as Step Up to Quality, Child and
Adult Food Program, Invest in Children/Universal Pre Kindergarten and Ohio
Department of Job and Family Services daycare licensing were all governmental
programs she facilitated and ensured compliance with as part of her duties. (Id. at 77-78,
82-82, 87, 94, 178-179). Harmon testified her job included “Keeping compliance of the
child–the child’s files, staff files, making sure the staff were attending and receiving the
trainings they needed, scheduling the trainings they needed, sending letters to parents in

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regards to children’s medicals that were about to expire or children’s enrollment records
that needed to be updated.” (Id at 73). Harmon further attested she helped with
enrollments, helped with tours, helped new hire and made sure the YWCA’s Procare
computer system was working for children so parents could enter. (Id at 74). Harmon
was asked if most, if not all, of these duties involved the clients of YWCA or the
children. Harmon answered yes, adding that it also involved the YWCA staff. (Id).
Harmon gave some particulars on her actual day to day job duties. For instance,
concerning billing, she testified she only accounted for attendance in the UPK classrooms
and passed the information to YWCA’s finance department for billing. (Id at 78). She
admits to supporting implementing curriculum, which included social/emotional
development with an academic component but only when acting as a lead teacher. She
denies developing the curriculum. ( Id at 80-81). She admits monitoring attendance,
coordinating and scheduling staff training and describes ensuring ELC participant files
contained all the proper documents relating to health screenings. (Id at 82). Harmon
would send letters to parents or set up dates for screenings of the children. (Id at 83). She
helped set up family activities and set up screenings for student assessments. (Id at 8485). Harmon denied having to exercise independent judgment or discretion because she
had to confer on most decisions with her supervisor. (Id. at 90). She described her ELC
duties as primarily administrative support for the teachers. (Id at 89).
Harmon’s affidavit contends she was required to be in the classroom as a Lead
Teacher four days a week for 8-10 hours a week. This was done after logging off her
computer because she was required to be in another area of the YWCA away from her

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regular work desk. Lead Teacher is not an exempt position.
YWCA contends Harmon’s affidavit contradicts her deposition testimony
wherein she never describes any substantial time spent as Lead Teacher.
Having reviewed all the testimony and evidence, the Court finds genuine issues of
fact militate against summary judgment. Unquestionably, Harmon attested she
performed many tasks that are exempt under the FLSA. However, there are genuine
issues of fact concerning what level of discretion and independent judgment she
exercised at her job. She attests everything had to be approved by her supervisor. She
also attests many of her functions involved simple mundane functions like tabulating
attendance. Lastly, she attests to engaging in nonexempt job duties for substantial
periods of time. Under the FLSA, a plaintiff’s primary duties do not necessarily have to
comprise more than fifty percent of her time.
The amount of time spent performing exempt work can be a useful guide
in determining whether exempt work is the primary duty of an employee.
Thus, employees who spend more than 50 percent of their time performing
exempt work will generally satisfy the primary duty requirement. Time
alone, however, is not the sole test, and nothing in this section requires
that exempt employees spend more than 50 percent of their time
performing exempt work. Employees who do not spend more than 50
percent of their time performing exempt duties may nonetheless meet the
primary duty requirement if the other factors support such a conclusion.

29 C.F.R. § 541.700.
Here, the Court is required to narrowly construe exemptions against employers
and the burden of proof is placed on the employer to show each element. Because there
are genuine issues of fact regarding Harmon’s primary job duties and what, if any,
amount of independent judgment and discretion she could exercise, the Court denies
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YWCA’s Motion for Summary Judgment on this issue.
For the same reasons, the Court denies YWCA’s argument that Harmon is exempt
under the educational administrative exemption.
Ohio Whistleblower Statute
In her Complaint, Harmon alleges she was terminated in violation of O.R.C. §
4113.52, Ohio’s Whistleblower Statute, for raising concerns with YWCA that it should
not be operating under a license in her name when she was not the Administrator.
Shortly after complaining of the licensing discrepancy, Plaintiff alleges she received a
reprimand and was terminated. According to Plaintiff, this termination was for “blowing
the whistle” on YWCA’s improper licensing.
Ohio’s Whistleblower Statue is codified in O.R.C. § 4113.52 (A)(1)(a), which
reads in pertinent part:
If an employee becomes aware in the course of the employee's
employment of a violation of any state or federal statute or any ordinance
or regulation of a political subdivision that the employee's employer has
authority to correct, and the employee reasonably believes that the
violation is a criminal offense that is likely to cause an imminent risk of
physical harm to persons or a hazard to public health or safety, a felony, or
an improper solicitation for a contribution, the employee orally shall
notify the employee's supervisor or other responsible officer of the
employee's employer of the violation and subsequently shall file with that
supervisor or officer a written report that provides sufficient detail to
identify and describe the violation. If the employer does not correct the
violation or make a reasonable and good faith effort to correct the
violation within twenty-four hours after the oral notification or the receipt
of the report, whichever is earlier, the employee may file a written report
that provides sufficient detail to identify and describe the violation with
the prosecuting authority of the county or municipal corporation where the
violation occurred, with a peace officer, with the inspector general if the
violation is within the inspector general's jurisdiction, or with any other
appropriate public official or agency that has regulatory authority over the
employer and the industry, trade, or business in which the employer is
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engaged.

If an employee informs his or her supervisor of the suspected wrongful conduct,
O.R.C. § 4113.52 (B) prohibits retaliation.
(B) Except as otherwise provided in division (C) of this section, no
employer shall take any disciplinary or retaliatory action against an
employee for making any report authorized by division (A)(1) or (2) of
this section, or as a result of the employee's having made any inquiry or
taken any other action to ensure the accuracy of any information reported
under either such division. No employer shall take any disciplinary or
retaliatory action against an employee for making any report authorized by
division (A)(3) of this section if the employee made a reasonable and good
faith effort to determine the accuracy of any information so reported, or as
a result of the employee's having made any inquiry or taken any other
action to ensure the accuracy of any information reported under that
division

According to her Complaint, Harmon orally informed her supervisor that the
facility should not be operating under license in her name when she was not the
Administrator and was subsequently terminated.
YWCA moves for summary judgment on Harmon’s Whistleblower claim because
she did not strictly comply with the statutory requirement that she inform her employer
orally and in writing. Because Harmon admits she did not submit her concern in writing,
YWCA contends the law requires judgment for YWCA. Harmon contends that it was an
impossibility to submit her concerns in writing because when she complained orally
about the conduct to her supervisor, Teresa Sanders, Sanders provided her a written
reprimand for going door-to-door complaining to staff about the licensing issue. Harmon
was terminated two days afterwards claiming it was impossible for her to have submitted
a written complaint to her supervisor.
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The Court finds YWCA is entitled to summary judgment on Harmon’s Retaliation
claim under the Whistleblower statute because she failed to strictly comply with the
requirement that she submit a detailed complaint to her employer in writing. Harmon’s
argument that she did not have time to comply because she was terminated shortly after
complaining is unavailing because she admits she first complained of the conduct in
August of 2014, nearly three months before her termination. In her affidavit, Harmon
attests:
The YWCA hired Alicia Arends on August 4th, 2014 into the position of
Administrator. I spoke with Teresa Sanders several times in August about
changing this and putting her name on the license. Ms. Sanders never
responded despite my repeated assertions this was wrong. In late August I
continued to push Ms. Sanders about this necessary change as well as
such other violations of State Code that I was witnessing.
(Harmon aff. 39-42)
Thus, Harmon acknowledges she complained orally to her supervisor repeatedly
in August of 2014 of the licensing issues, along with other alleged misconduct, but attests
she never submitted anything in writing. As stated by both the Sixth Circuit and the
Ohio Supreme Court, to avail themselves of its protections employees must strictly
comply with the requirements of Ohio’s Whistleblower statute. “The Ohio Supreme
Court requires claimants invoking the protections of this Act to strictly comply with its
dictates.” Gilreath v. Clemens & Co., 212 F. App'x 451, 464 (6th Cir. 2007) citing
Contreras v. Ferro Corp., 73 Ohio St.3d 244, 652 N.E.2d 940, 943–44 (1995). In
Contreras, the Ohio Supreme Court held against an employee alleging a violation of the
Ohio Whistleblower statute. In considering the express language of the statute, the Ohio
Supreme Court held, “therefore, to restate, R.C. 4113.52(A)(1) protects an employee for

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reporting certain information to outside authorities only if the following requirements
have first been satisfied: (1) the employee provided the required oral notification to the
employee's supervisor or other responsible officer of the employer, (2) the employee filed
a written report with the supervisor or other responsible officer, and (3) the employer
failed to correct the violation or to make a reasonable and good faith effort to correct the
violation.” Id at 73 248. Finding Contreras failed to orally complain and failed to
provide a written complaint to his employer, the Court held “An employee who fails to
follow the specific requirements of the statute is not a protected whistleblower and,
accordingly, may not bring a wrongful discharge action...” Id at 249.
Because Harmon had ample time and opportunity to submit a written complaint to
her employer and failed to do so, her claim under Ohio’s Whistleblower statute fails as a
matter of law.
Public Policy Claim
Harmon asserts a claim for Wrongful Termination in violation of Ohio Public
Policy. In her Complaint at pg. 8, she alleges, “It is well established that Plaintiff may
bring a public policy claim for wrongful discharge associated with violations of
4113.52.” While true, such a claim may not be maintained if Plaintiff cannot
demonstrate a violation of the underlying source of the policy. “The Sixth Circuit and
the Ohio Supreme Court have both held that under Ohio law, a plaintiff cannot state a
claim for wrongful discharge in violation of public policy unless he or she is able to
establish a violation of the underlying source of that policy.” Shingler v. Smile Care,
LLC, No. 1:14 CV 725, 2015 WL 3935943, at *4 (N.D. Ohio June 26, 2015), see also

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Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 677 N.E.2d 308.
Because the Court has already determined Harmon cannot maintain a cause of
action for violation of the Ohio Whistleblower statute, her public policy claim based on
the same fails as a matter of law as well.
Therefore, for the foregoing reasons, the Court denies YWCA’s Motion for
Summary Judgment on Harmon’s FLSA claim and grants YWCA’s Motion for Summary
Judgment on Harmon’s Retaliation and Public Policy claims.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 9, 2017

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