Shine v. Ohio Dept. of Rehab. & Corr. , 2022 Ohio 3651 ( 2022 )

[Cite as Shine v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-3651.]
STACIE E. SHINE Case No. 2021-00460JD
Plaintiff Magistrate Robert Van Schoyck
v. DECISION OF THE MAGISTRATE
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION
Defendant
{¶1} Plaintiff brings this action arising out of allegations that an employee of
defendant, Kenneth Myers, sexually harassed her in the workplace at the Allen Oakwood
Correctional Institution (AOCI). At the parties’ request, this matter came on for an
evidentiary hearing to determine whether Myers is entitled to civil immunity pursuant to
R.C. 9.86 and 2743.02(F). Myers did not participate in the hearing.
{¶2} Plaintiff testified at the hearing that she is employed with Sinclair Community
College in a role that required her to work three or four days a week at AOCI during the
time at issue in this case. She explained that while defendant was not her direct
employer, when she was at AOCI she reported to a deputy warden.
{¶3} Initially, plaintiff stated, she had only infrequent, occasional interactions with
Myers, who served as the Health and Safety Coordinator for AOCI. By around January
2019, though, Myers was making frequent visits to see her and having unwanted
interactions with her that were very personal and unprofessional, as plaintiff described.
According to plaintiff, Myers made comments about her body, like saying “nice ass” or
“you look very nice today”, and he asked several times about whether she was happy
with her marriage or if she was willing to step out of her marriage. In response, plaintiff
testified, she would remind Myers he was married and that his wife worked at AOCI.
{¶4} In addition to the personal interactions Myers initiated with plaintiff, beginning
in January 2019 he also called her office phone from phones throughout AOCI and from
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his personal cell phone, she stated. Some days he would call as many as three to five
times, plaintiff recalled. By approximately March 2019, plaintiff stated, Myers also began
sending text messages to her personal cell phone, and he explained to her that his
position at AOCI gave him access to her personal phone number. According to plaintiff,
she received text messages from Myers both inside and outside of work hours and the
messages included remarks about her body, queries about her marriage, innuendos, and
photographs of his penis. Plaintiff recounted that Myers also asked her to send him nude
photographs of herself and to connect with him on the messaging app Snapchat so that
any communications between them would self-destruct.
{¶5} Plaintiff testified that Myers would appear in her work area almost daily
despite having no reason to be there and that at times his behavior prevented her from
doing her job. Plaintiff identified one instance of Myers touching her, in which he placed
his hands on her shoulders and then slid his hands down to her buttocks. According to
plaintiff, she asked him to leave her office at that time. Plaintiff described trying to avoid
Myers and asking others who worked in her building to alert her if they saw Myers coming
so that she could move from her office to an area where there were more people around.
Plaintiff also described Myers letting her know that he had been watching her movements
around the compound, going so far as using defendant’s surveillance cameras to monitor
her whereabouts.
{¶6} Plaintiff felt intimidated by Myers and that he had some influence over her
position at AOCI. As plaintiff explained, as a contractor she felt that she was only a guest
at AOCI whereas Myers, an employee of defendant, told her that he knew people who
could fire her and she believed that he could cause her to lose her job there.
Nevertheless, plaintiff testified that in July 2019 she reported Myers’ conduct to AOCI
officials and she subsequently gave investigatory interviews to prison authorities on
July 16 and November 8, 2019. Plaintiff testified that she also notified her employer,
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Sinclair Community College, of Myers’ conduct at some point. As far as plaintiff could
recall, Myers left AOCI in late July or early August 2019.
{¶7} Joanna “Jodi” Factor testified that she retired in 2022 after 33 years of
employment with defendant, having served most recently in the role of Corrections
Warden Assistant II at AOCI. Describing her responsibilities in that role, Factor stated
that she assisted with the warden’s duties, served as the public information officer for
AOCI, and supervised four employees, including the Health and Safety Coordinator
position formerly held by Myers. Factor authenticated a copy of defendant’s position
description for the Health and Safety Coordinator and she summarized in her own words
what the position entails. Factor was asked about several of the things that plaintiff claims
Myers did to harass her, which Factor identified as not being part of his job, for example,
interacting with her on social media. Factor testified that whereas Myers was a full-time
employee of defendant, contract employees like plaintiff are employed by a third party
and work at AOCI under a contract. According to Factor, Myers did not supervise any
employees and had no hiring or firing authority.
{¶8} Factor was familiar with plaintiff serving as the site coordinator for Sinclair
Community College at AOCI, with an office in the education building. Factor testified that
the education building had about six to eight people working in it on any given day and it
was on the opposite side of the compound from the building where Myers’ office was
located. Myers would have had reason to be in the education building once a month to
perform a compound-wide safety and sanitation inspection that he was required to
complete, Factor stated, and if Myers noted any issues in one of his inspections, the
issues would typically be addressed by the maintenance department. Factor testified that
Myers did not need to contact plaintiff to schedule his monthly visits to the education
building, nor was there any part of his job that required him to call her on any regular
basis. When Myers would enter the education building, he was supposed to sign a
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logbook maintained by corrections officers, Factor stated; when asked if Myers did so,
Factor said she did not know.
{¶9} Factor acknowledged that in May 2019, Myers put in a written request to
prison management for access to view AOCI’s security camera system and his request
was granted. (Defendant’s Exhibit B.) Per the request, Myers was only granted access
so that he could review accidents or other incidents occurring on the compound, and
Factor testified that he was not supposed to use the cameras simply to watch employees,
determine when they were arriving at work, or otherwise monitor the comings and goings
of others. As far as Factor could recall, Myers had not previously had access or sought
access to the security camera system.
{¶10} Factor’s recollection was that after two individuals came forward with reports
of inappropriate behavior by Myers, he was placed on administrative leave pending an
investigation. Myers ultimately resigned his employment, Factor stated.
{¶11} There is no dispute that Myers was at all times relevant a state employee.
“In accordance with R.C. 2743.02(F), the Court of Claims ‘has exclusive jurisdiction to
determine whether a state employee is immune from liability under R.C. 9.86.’” Nix v.
Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13AP-547, 2014-Ohio-2902, ¶ 22,
quoting Johns v. Univ. of Cincinnati Med. Assocs., 101 Ohio St.3d 234, 2004-Ohio-824,
804 N.E.2d 19, syllabus.
{¶12} R.C. 9.86 states, in part:
{¶13} “Except for civil actions that arise out of the operation of a motor vehicle and
civil actions in which the state is the plaintiff, no officer or employee shall be liable in any
civil action that arises under the law of this state for damage or injury caused in the
performance of his duties, unless the officer’s or employee’s actions were manifestly
outside the scope of his employment or official responsibilities, or unless the officer or
employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.”
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{¶14} “[T]he question of scope of employment must turn on what the [employee’s]
duties are as a state employee and whether the [employee] was engaged in those duties
at the time of an injury.” Theobald v. Univ. of Cincinnati, 111 Ohio St.3d 541, 2006-Ohio-
6208, 857 N.E.2d 573, ¶ 23. “[T]he scope of employment is a fact-based inquiry that
turns on proof of the employee’s specific job description with the state and focuses on
whether the employee’s conduct is related to and promotes the state’s interests.” Ries v.
Ohio State Univ. Med. Ctr., 137 Ohio St.3d 151, 2013-Ohio-4545, 998 N.E.2d 461, ¶ 23.
{¶15} “An employee’s wrongful act, even if it is unnecessary, unjustified, excessive
or improper, does not automatically take the act manifestly outside the scope of
employment. * * * The act must be so divergent that it severs the employer-employee
relationship.” Elliott v. Ohio Dept. of Rehab. & Corr., 92 Ohio App.3d 772, 775, 637
N.E.2d 106 (10th Dist.1994). “The fact that the conduct constituting the tort was
committed while the employee was on duty and supposedly performing services for his
employer, does not render the employer liable where the employee deviated or departed
from his employer’s business to engage upon a matter for his own personal purposes
without benefit to the employer.” Caruso v. State, 136 Ohio App.3d 616, 621, 737 N.E.2d
563 (10th Dist.2000). “In other words, an employer is not liable for independent self-
serving acts of his employees which in no way facilitate or promote his business.” Byrd
v. Faber, 57 Ohio St.3d 56, 59, 565 N.E.2d 584 (1991).
{¶16} “If the Court of Claims determines that the employee’s acts did not further
the interests of the state, i.e., the employee was acting outside the scope of his
employment, maliciously, in bad faith, or in a wanton or reckless manner, the state has
not agreed to accept responsibility for the employee’s acts and the employee is personally
answerable for his acts in a court of common pleas.” Conley v. Shearer, 64 Ohio St.3d
284, 287, 595 N.E.2d 862 (1992).
{¶17} “The determination as to whether or not a person is entitled to immunity
under R.C. 2743.02(F) and 9.86 is a question of law.” Morway v. Ohio Bur. of Workers’
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Comp., 10th Dist. Franklin No. 04AP-1323, 2005-Ohio-5701, ¶ 17. “‘While the issue of
immunity is a question of law, consideration of the specific facts is necessary.’” Webber
v. Ohio Dept. of Pub. Safety, 2017-Ohio-9199, 103 N.E.3d 283, ¶ 45 (10th Dist.), quoting
Marinucci v. Ohio Dept. of Transp., 10th Dist. Franklin No. 99AP-500, 2000 Ohio App.
LEXIS 93 (Jan. 18, 2000).
{¶18} Upon review of the evidence presented, the magistrate finds that plaintiff’s
testimony credibly established that Myers engaged in a pattern of inappropriate conduct
toward her including, but not limited to, excessive and unwanted personal attention and
questioning, inappropriate comments about her body, invitations to engage in sex and
requests for nude photographs, surveilling plaintiff, inappropriate touching, and sending
plaintiff one or more photographs of his penis. Such behavior on the part of Myers was
associated with his own personal libidinal gratification and was plainly not part of his job
duties and had no purpose of serving defendant’s interest. See Oye v. Ohio State Univ.,
10th Dist. Franklin No. 02AP-1362, 2003-Ohio-5944, ¶ 14; Browder v. Ohio Dept. of
Rehab. & Corr., Ct. of Cl. No. 2021-00328JD, 2022-Ohio-3088, ¶ 8.
{¶19} Based on the foregoing, the magistrate finds that, at all times relevant,
Kenneth Myers acted manifestly outside the scope of his employment. Therefore, it is
recommended that the court issue a determination that Myers is not entitled to civil
immunity pursuant to R.C. 9.86 and 2743.02(F) and that the courts of common pleas have
jurisdiction over any civil actions that may be filed against him based upon the allegations
of this case.
{¶20} A party may file written objections to the magistrate’s decision within 14 days
of the filing of the decision, whether or not the court has adopted the decision during that
14-day period as permitted by Civ.R. 53(D)(4)(e)(i). If any party timely files objections,
any other party may also file objections not later than ten days after the first objections
are filed. A party shall not assign as error on appeal the court’s adoption of any factual
finding or legal conclusion, whether or not specifically designated as a finding of fact or
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conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion within 14 days of the filing of the decision,
as required by Civ.R. 53(D)(3)(b).
ROBERT VAN SCHOYCK
Magistrate
Filed September 21, 2022
Sent to S.C. Reporter 10/13/22