Bryant v. Central Community Health Board et al

Filing 21

MEMORANDUM OPINION AND ORDER signed by Judge William O. Bertelsman on 3/29/17. IT IS ORDERED that: 1. Defendants motion for judgment on the pleadings, motion to enforce settlement agreement, and motion for costs (Doc. 10 ) be, and is hereby, GRANT ED IN PART AND DENIED IN PART; (2) Plaintiffs motion to amend the complaint (Doc. 11 ) be, and is hereby, GRANTED. The tendered Amended Complaint is deemed FILED herewith; and (3) The parties shall confer with the assigned United States Magistrate Judge regarding any amendments to the current discovery schedule. (eh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CIVIL ACTION NO. 1:16cv00620-WOB-KLL

CATHY BRYANT

PLAINTIFF

VS.

MEMORANDUM OPINION AND ORDER

CENTRAL COMMUNITY HEALTH
BOARD, ET AL.

This

is

an

employment

DEFENDANTS

discrimination

action

in

which

plaintiff alleges gender discrimination and retaliation under both
federal and Ohio law, intentional interference with a business
relationship, and breach of contract.
This matter is before the Court on defendants’ motion for
judgment on the pleadings, motion to enforce settlement agreement,
and motion for costs (Doc. 10), and plaintiff’s motion to amend
the complaint (Doc. 11).

The Court previously heard oral argument on these motions.

Having reviewed the matter further, the Court now issues the
following Memorandum Opinion and Order.

Factual and Procedural Background1
Central Community Health Board (“CCHB”) is a private, nonprofit

community-based

behavioral

health

organization

that

provides mental health and other services to residents of the
Hamilton County/Greater Cincinnati area.
Plaintiff Cathy Bryant (“Bryant”) was employed as a Case
Manager at CCHB from 2006 until June 29, 2012, when she was
terminated.
termination

(Compl. ¶ 17).
was

that

CCHB’s asserted reason for the

Bryant

failed

to

meet

productivity

requirements and engaged in threatening and intimidating conduct
toward her co-workers.
Bryant filed a federal lawsuit against CCHB alleging gender
and age discrimination, violation of the FMLA, and retaliation.
Bryant v. Central Community Health Board, S.D. Ohio Case No.
13cv355.

The case settled and was dismissed on April 10, 2015,

with the parties executing a “Confidential Settlement Agreement
and General Release.”

(Doc. 6-1).

Because Bryant had alleged a

claim under the Age Discrimination in Employment Act (“ADEA”), the
settlement agreement was subject to a statutorily mandated sevenday revocation period, meaning that the agreement could not take
effect until seven days after Bryant signed it.

(Id. ¶ 7).

Bryant

1

To supplement this narrative, a timeline of key dates is attached.
2

signed the agreement on April 10, 2015, making it effective on
April 17, 2015.

(Id. at 6).

After her termination from CCHB, Bryant was hired by Talbert
House2, another Cincinnati non-profit organization that provides
mental health and substance abuse services.

(Compl. ¶ 19).

To

some extent, the client bases of CCHB and Talbert House overlap.
Bryant alleges that on or about April 1, 2015, she was
transferred to a new department at Talbert House and assigned to
work with individuals who were also CCHB clients. (Compl. ¶ 20).
Bryant further alleges that, at a staff meeting that day, a CCHB
employee named Bill Epps (“Epps”) asked, “Why is she here?”
Bryant’s supervisor, Tommie Reid (“Reid”) told Epps that Bryant
was the new Employment Services Provider at Talbert House. (Compl.
¶ 21).
Bryant next alleges that, on April 9, 2015, Reid told her
that CCHB did not want her working with their clients due to her
lawsuit.

(Compl. ¶ 23).

In the meantime, counsel for Bryant and CCHB were negotiating
a settlement of her lawsuit.

See Doc. 15-1 to 15-5.

the Settlement Agreement on April 10, 2015.

Bryant signed

(Doc. 6-1 at 6).

2

It is unclear when exactly Bryant was hired by Talbert House,
but the record reflects that she worked there at least as early as
November 14, 2014. See Doc. 12-4.
3

On April 14, 2015, CCHB Clinical Supervisor Martha Stephenson
(“Stephenson”) sent an email to a CCHB Case Manager, Lisa Brubaker
(“Brubaker”),

and

a

Hamilton

County

Adult

Probation

Officer,

Amanda Gerding (“Gerding”), regarding concerns about Bryant taking
a client out to lunch and sharing with her clinical information
about her that had been discussed in staff meetings.
at 2-3).

(Doc. 12-5

Gerding and Brubaker responded with emails echoing these

concerns and expressing alarm about the disclosure to clients of
confidential treatment discussions by their case managers and
probation officers.
Stephenson

(Id.).

forwarded

this

email

chain

to

Reid,

stating:

“Please see the email exchange below regarding Cathy Bryant.

We

have concerns about her violating professional boundaries and
possibly undermining clients’ treatment processes.
know how this will be addressed.”

(Id. at 1).

“This matter will be handled internally.
our attention.”

Please let us

Reid responded,

Thanks for bringing to

(Id.).

Bryant alleges that she was notified of these concerns the
same day, (Complaint ¶ 27), and the memorandum confirming her
termination states that Bryant supplied a statement the next day,
admitting that she took the client out to lunch.

4

(Doc. 12-4).

Talbert House terminated Bryant’s employment effective April
20, 2015.3
Bryant filed this lawsuit against CCHB and several of its
managers on June 7, 2016, alleging: 1) Title VII gender and race
discrimination; 2) discrimination and retaliation under O.R.C. §
4112;

3)

intentional

infliction

of

emotional

distress;

4)

retaliation under the ADA, FMLA, Title VII and Ohio law; 5) breach
of express or implied contract; 6) respondeat superior; 7) age
discrimination under the ADEA; 8) defamation4; and 9) interference
with business relationship.
On October 19, 2016, defendants filed a Motion for Judgment
on the Pleadings, Motion to Enforce Settlement Agreement, and
Motion for Costs.

(Doc. 10).

Bryant has also filed a Motion for

Leave to File a First Amended Complaint.

(Doc. 11).

Analysis
A. Are Bryant’s Claims Barred by the Settlement Agreement?
The Settlement Agreement in this matter is to be “construed
and governed according to the laws of the State of Ohio.”

(Doc.

6-1 at 6). Under Ohio law, “[t]he intent of the parties is presumed

3

Although Bryant originally alleged that her employment was
terminated on April 15, 2015, in her motion to amend the complaint
(Doc. 11), plaintiff states that the actual date of her termination
from Talbert House was April 20, 2015, and the record so reflects.
(Doc. 12-4).
4

Plaintiff has withdrawn her defamation claim.
5

to reside in the language they chose to use in their agreement.”
Graham v. Drydock Coal Co., 667 N.E.2d 949, 952 (Ohio 1996)
(citation omitted).
The relevant portions of the Settlement Agreement are as
follows:


This Agreement is made as a compromise and settlement by
and between Bryant and CCHB and is intended to be a complete
and final settlement and resolution of the Lawsuit and all
claims that are, or might have been, raised between the
Parties, upon the terms and conditions set forth below.



In consideration for the promises set forth herein, Bryant
hereby irrevocably and unconditionally releases, acquits,
and forever discharges CCHB from any and all charges,
claims, liabilities . . . of any nature whatsoever . . .
through the Effective Date of this Agreement.



Bryant hereby acknowledges that she has specifically waived
any rights under the Age Discrimination in Employment Act
(“ADEA”) 29 U.S.C. § 621 et seq., and that all provisions
of the Older Worker Benefits Protection Act have been
complied with, including that this Agreement has been
explained to her by her attorney. Bryant also acknowledges
that she has been advised in writing to consult with her
attorney regarding whether she wishes to execute this
Agreement.



Bryant further acknowledges that she has consulted with
her attorney regarding the meaning of this Agreement, that
she has been given a period of twenty-one (21) days within
which to consider this Agreement and that she hereby
voluntarily and knowingly waives such twenty-one (21) day
period.
Bryant understands that she may revoke this
Agreement within seven (7) days from the date she signs it
by giving written notice of such revocation to CCHB within
such seven (7) day revocation period.
This Settlement
Agreement and Release shall not be effective for seven (7)
days after the date on which she signs it, but unless so
revoked, it shall automatically become effective.

6



The full and general release in paragraph 7 covers any and
all claims described in this section, whether or not they
are currently known or unknown, foreseen or unforeseen,
and any and all damages and consequences arising from such
claims, whether or not the extent of such damages or
consequences are fully known to the Parties at this time.



By signing this Agreement, Bryant agrees not to bring any
suit or action in any court or administrative agency, to
the extent permitted by law, against CCHB and/or any of
the beneficiaries of this Agreement.



Bryant warrants and agrees . . . [that] [s]he has carefully
read this entire Agreement and understands all the terms
of this Agreement, including the Release provisions set
forth in paragraphs 7 through 11 above . . .



If a prospective of future employer requests an employment
reference for Bryant, CCHB shall provide a “neutral”
reference (i.e., Bryant’s employment dates, title of her
last position held and salary, if authorized by Bryant),
and shall not make any disparaging statements regarding
Bryant’s employment with CCHB.

(Doc. 6-1) (emphasis added).
The seven-day revocation period highlighted above is mandated
by statute in order to procure a valid release of ADEA claims.
Oubre v. Entergy Operations, Inc., 118 S. Ct. 838, 842 (1998) (“The
OWBPA governs the effect under federal law of waivers and releases
on

ADEA

claims

and

incorporates

no

exceptions

or

qualifications.”).
Thus, as the Settlement Agreement expressly states, it could
not become effective until seven days after Bryant signed it,
during which period she was free to revoke it for any reason.

7

Bryant signed the Agreement on April 10, 2105, so it was not
effective until April 17, 2015.
However, as Bryant points out, the ADEA regulations provide
that a waiver is not “knowing and voluntary” unless “the individual
does not waive rights or claims that may arise after the date the
waiver is executed.”

29 C.F.R. § 1625.22(c)(1).

Further, it “is

the general rule in [the Sixth] [C]ircuit that an employee may not
prospectively waive his or her rights under either Title VII of
the ADEA.”

Adams v. Philip Morris, Inc., 67 F.3d 580, 584 (6th

Cir. 1995).
Therefore, any claims premised on actions occurring before
April 10, 2015, are barred by the Settlement Agreement, but claims
premised on events after that date are not barred.5
This leaves a single contested event.

Bryant alleges that

the email that Martha Stephenson sent to Talbert House on April
14, 2015 — concerning Bryant having lunch with a client and
allegedly improperly sharing confidential treatment information
with her — was an act of retaliation by CCHB because of Bryant’s
lawsuit.
In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), the Supreme
Court held that the term “employees” as used in Title VII’s anti                                                            
5

While claims based on acts occurring
barred, this does not “bar an employee
as background evidence in support of
Railroad Passenger Corp. v. Morgan, 536
8

before April 10, 2015 are
from using the prior acts
a timely claim.”
Nat’l
U.S. 101, 113 (2002).

retaliation

provision

includes

employees.

Id. at 346.

former

as

well

as

current

Thus, Bryant can bring a claim for

retaliation against CCHB even though she was no longer its employee
at the time of the alleged retaliation.
“To state a prima facie case of retaliation [under Title VII],
a plaintiff must establish (1) that she engaged in protected
activity; (2) that the exercise of protected activity was known to
the defendant; (3) that the defendant took adverse action (which
includes actions that would dissuade a reasonable worker from
making or supporting a charge of discrimination); and (4) that
there was a causal connection between the protected activity and
such adverse action.”

Taylor v. Donahoe, 452 F. App’x 614, 620

(6th Cir. 2011) (citation omitted).
Plaintiff’s allegations satisfy all four parts of this test.
She engaged in protected activity by suing CCHB for discrimination,
and CCHB obviously knew of the lawsuit.

Plaintiff further alleges

that CCHB sent the April 14, 2015, email in retaliation for her
suing them in an effort to get her fired.
While an “adverse action” is typically something on par with
a termination, demotion, or failure to hire, the Supreme Court has
made it clear that “[e]ach incident of discrimination and each
retaliatory adverse employment decision constitutes a separate
actionable ‘unlawful employment practice’” under Title VII.

Nat’l

Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
9

In Morgan, the Court dealt with the issue of the timeliness
of

Title

VII

claims,

rejecting

the

use

of

the

“continuing

violation” theory to keep alive claims based on discrete acts that
fall outside the limitations period.

The Court distinguished

discrete acts which are individually actionable, and acts which
are not individually actionable but may be aggregated to support
a hostile work environment claim.
In

giving

examples

of

Id. at 113-15.

such

“discrete”

acts,

the

Court

mentioned obvious ones such as termination, but it also found
timely and actionable plaintiff’s allegations that he had been
“falsely

accused

of

threatening

a

manager.”

Id.

Such

an

accusation is analogous to CCHB’s complaint to Talbert House that
plaintiff had engaged in unethical conduct.
Further support for this conclusion is found in the Supreme
Court’s decision in Burlington N. & Santa Fe Ry. Co., 548 U.S. 53
(2006).

There, the Court rejected the argument that Title VII’s

antidiscrimination and antiretaliation should be read in pari
materia:
[W]we conclude that Title VII’s substantive provision and its
antiretaliation provision are not coterminous. The scope of
the antiretaliation provision extends beyond workplacerelated or employment-related retaliatory acts and harm. We
therefore reject the standards applied in the Courts of
Appeals that have treated the antiretaliation provision as
forbidding
the
same
conduct
prohibited
by
the
antidiscrimination
provisions
and
that
have
limited
actionable retaliation to so-called “ultimate employment
decisions.”

10

In our view, a plaintiff must show that a reasonable employee
would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.
. . .
We phrase the standard in general terms because the
significance of any given act of retaliation will often depend
on the particular circumstances. Context matters. The real
social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple
recitation of the words used or the physical acts performed.
. . . A schedule change in an employee’s work schedule may
make little difference to many workers, but may matter
enormously to a young mother with school-age children. . .
Hence, a legal standard that speaks in general terms rather
than specific prohibited acts is preferable, for an act that
would be immaterial in some situations is material in others.
Id. at 67-69 (emphasis added).
Accepting Bryant’s allegations as true, CCHB reported her
conduct to Talbert House as a means of retaliating against her for
suing CCHB and in an effort to get her fired from Talbert House.
This falls within the Supreme Court’s definition of a “discrete
act” of retaliation that would deter a reasonable employee from
filing claims against her former employer.
While CCHB makes persuasive arguments that it had valid
reasons for expressing its concerns, at this stage the Court must
accept Bryant’s allegations as true.
B. Are The Claims Otherwise Without Merit?
The Court will briefly address Bryant’s other claims inasmuch
as they could be based on the April 14, 2015 email.
11

First, Bryant’s claims for gender and age discrimination fail
to state a claim because CCHB was not Bryant’s “employer” at the
time

any

of

these

events

occurred.

As

to

the

individual

defendants, there is no individual liability under Title VII or
the ADEA.

Wathen v. Gen., Elec. Co., 115 F.3d 400-404-05 (6th

Cir. 1997).

Although Ohio law allows for individual liability

against supervisors, none of the individual CCHB defendants were
Bryant’s “supervisors” on April 14, 2015, because she was not
employed by CCHB.

Next, the breach of contract claim fails because, read as a

whole, the non-disparagement clause in the Settlement Agreement
clearly is limited to the reference context.
Bryant

does

not

allege

that

Talbert

House

(Doc. 6-1 at 5).
asked

CCHB

for

a

reference or that the allegedly disparaging email of April 14,
2015, mentioned Bryant’s employment with CCHB.
Bryant’s

claim

for

intentional

infliction

of

emotional

distress fails because Ohio law requires conduct that goes “beyond
all possible bounds of decency” and “was such that it can be
considered
Bennett

v.

as

utterly

Columbiana

intolerable
County

in

Coroner,

a

civilized
No.

community.”

14CO0039,

2016

WL

5874635, at *13 (Ohio Ct. App. Sept. 30, 2016) (citation omitted).
The actions Bryant alleges that CCHB took do not approach this
stringent standard.

See Abbott v. Crown Motor Co., Inc., 348 F.3d

537, 544 (6th Cir. 2003) (applying Ohio law and rejecting claim
12

for intentional infliction of emotional distress where plaintiff
alleged

that

former

employer,

knowing

of

plaintiff’s

heart

condition, gave negative reference to potential employer).
Finally,

Bryant

alleges

a

claim

business relationship under Ohio law.

for

interference

with

In order to demonstrate the

elements of this claim, a plaintiff must show (1) a business
relationship, (2) the tortfeasor’s knowledge of the relationship,
(3) intentional interference causing a breach or termination of
the relationship, and (4) damages resulting therefrom.

LaBarge v.

Werner Enter., No. 2:07-cv-177, 2008 WL 2740831, at *7 (S.D. Ohio
July 10, 2008) (citation omitted).
Ohio law recognizes a qualified privilege for statements
between individuals with a common business interest.

Smith v.

Ameriflora 1992, Inc., 644 N.E.2d 1038, 1043 (Ohio Ct. App. 1994).
In order to overcome this privilege, a plaintiff must show that
the alleged tortfeasor acted with actual malice.

Id.

To show

actual malice, the plaintiff must prove that the tortfeasor made
the statements in question with knowledge that they were false or
with reckless disregard as to their truth or falsity.

Id. at 1042.

Construing Bryant’s allegations as true, she has sufficiently
pled a claim for this tort.

She alleges that CCHB deliberately,

and with malice, sent the email on April 14, 2015, in order to get
her fired from Talbert House.

While Bryant admitted taking the

client to lunch, she does not concede that she violated any ethical
13

duties, and her position is that her actions were consistent with
Talbert House’s policies.
At this early pleading stage, therefore, CCHB is not entitled
to judgment on the pleadings on the interference with business
relations claim.
In summary, Bryant’s claims for retaliation and interference
with business relations based on the April 14, 2015 email are not
barred by the Settlement Agreement and may proceed.
The Court declines to award costs in this matter.

Therefore, having reviewed this matter, and being otherwise
advised,
IT IS ORDERED that:
(1)

Defendants’ motion for judgment on the pleadings, motion
to enforce settlement agreement, and motion for costs
(Doc. 10) be, and is hereby, GRANTED IN PART AND DENIED
IN PART, consistent with the above discussion;

(2)

Plaintiff’s motion to amend the complaint (Doc. 11) be,
and is hereby, GRANTED.

The tendered Amended Complaint

is deemed FILED herewith; and
(3)

The parties shall confer with the assigned United States
Magistrate Judge regarding any amendments to the current
discovery schedule.

14

This 29th day of March, 2017.

15

Timeline

June 29, 2012

Bryant terminated from CCHB

May 24, 2013

Bryant files federal lawsuit against
CCHB alleging gender and age
discrimination, violation of the FMLA,
and retaliation.

April 1, 2015

Bryant, then employed at Talbert House,
is assigned to a department where she
would work with individuals who were
also CCHB clients. CCHB employee Bill
Epps allegedly says, “Why is she here?”
Bryant’s supervisor, Tommie Reid
(“Reid”), tells Epps that Bryant is
their new Employment Services Provider.

April 9, 2015

Reid tells Bryant that CCHB does not
want her working with their clients due
to her lawsuit.

April 10, 2015

Bryant signs Settlement Agreement to
resolve her lawsuit against CCHB.
Agreement contains ADEA-required 7-day
revocation period, states that
Agreement not effective until period
expires.

April 14, 2015

CCHB supervisors and Hamilton County
Probation Officer email Reid at Talbert
House with concerns about Bryant taking
a client out to lunch and sharing
confidential treatment information with
her. Reid notified Bryant of this
matter the same day.

April 15, 2015

Bryant provides written statement to
Reid admitting that she did take the
CCHB/Talbert House client to lunch.

April 20, 2015

Talbert House terminates Bryant’s
employment.

16