author: WAITE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Antoine TATE, Defendant-Appellant.
    No. 16 MA 0064
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: June 29, 2018
    Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee.
    Atty. John D. Falgiani, Jr., P.O. Box 8533, Warren, Ohio 44484, for Defendant-Appellant.
    BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
    OPINION AND JUDGMENT ENTRY
   WAITE, J.

{¶ 1} Appellant Antoine Tate appeals his conviction on one count of drug possession, in violation of R.C. 2925.11(A), (C)(4)(a), a felony of the fifth degree. His conviction is based on the recovery of less than one-tenth of a gram of a loose substance containing cocaine base or crack cocaine found in the bottom of a waste can during the execution of a search warrant at a residence on the south side of Youngstown, Ohio.

{¶ 2} Appellant contends that there was insufficient evidence to support his conviction and that his conviction is against the manifest weight of the evidence. Appellant further contends that the state failed to establish within a reasonable degree of scientific certainty that the substance in question was cocaine. Finally, he asserts that an erroneous jury instruction affected the outcome of the trial. For the following reasons, Appellant's conviction is affirmed.

Law

{¶ 3} R.C. 2925.11(A) provides that "[n]o person shall knowingly obtain, possess, or use a controlled substance." Possession of a controlled substance may be actual or constructive. State v. Wolery , 46 Ohio St.2d 316, 329, 348 N.E.2d 351 (1976). A person is in "constructive possession" if he is able to exercise dominion and control over an item, even if he does not have immediate physical possession of it. State v. Hankerson , 70 Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus, overruled on other grounds in State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), syllabus; State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 247. For constructive possession to exist, the person must be conscious of the presence of the object. Id. at 91, 434 N.E.2d 1362.

{¶ 4} Constructive possession may be proven by circumstantial evidence alone, but dominion and control may not be inferred based exclusively on access to the substance or through ownership or occupation of the premises where the substance is found. State v. Soto , 8th Dist. No. 86390, 2006-Ohio-2319, 2006 WL 1281009, ¶ 27, citing, in part, R.C. 2925.01(K). Moreover, two or more persons may have joint constructive possession of the same object. State v. Smith , 8th Dist. No. 78277, 2001 WL 563077, at *3 (May 24, 2001) ("Joint possession exists when two or more persons together have the ability to control an object, exclusive of others.")

{¶ 5} Additionally, evidence of drug use in the common areas of a residence, (for instance, where cocaine residue is found on a CD case, in a frying pan, and on a scale) bolsters the inference that a defendant is fully conscious there are drugs in his home. State v. Hudson , 11th Dist., 2018-Ohio-133, 104 N.E.3d 25, ¶ 55, citing State v. Molina , 8th Dist. No. 83731, 2004-Ohio-4347, 2004 WL 1846133, ¶ 27, (finding defendant was aware of drug trafficking based on the "casual and pervasive presence of heroin and tools of trafficking" in her apartment.)

Facts

{¶ 6} As earlier stated, the charges at issue stemmed from the execution of a search warrant at a Youngstown residence. Five Youngstown Police Department officers and a forensic scientist from the Bureau of Criminal Identification and Investigation offered testimony at trial. Each officer testified to his closely-circumscribed role in the execution of the warrant at 833 Mercer Street, leaving the jury and the record on appeal with a somewhat incomplete narrative of the evening's events.

{¶ 7} Officer Francis Bigowsky testified that he was a scout, and that he surveilled various properties in the city for the purpose of detecting unlawful drug activity. His interest in the Mercer Street address was based on complaints about alleged drug sales at the residence and information from a confidential informant regarding the sale of crack cocaine. (Trial Tr., pp. 111-112.)

{¶ 8} Although Officer Bigowsky was not a member of the entry team, he did participate in the search as a "float," that is, an officer who is not assigned to search a specific part of the residence. In the living room, Officer Bigowsky recovered a Time Warner cable bill addressed to Appellant at the 833 Mercer Street address. (Trial Tr., p. 116.) He also recovered three digital scales, two in a drawer in the kitchen, and one in a cereal box on the top of the refrigerator, (Trial Tr., pp. 114, 127), as well as a loose substance at the bottom of a waste can in the kitchen, which field tested positive for cocaine. (Trial Tr., pp. 114, 118.) But for this substance, the waste can was empty. (Trial Tr., p. 115.)

{¶ 9} On cross-examination, Officer Bigowsky conceded that another man, Darrell Watkins, was present at the residence with Appellant when the search warrant was executed. (Trial Tr., p. 131.) He also conceded that neither the waste can nor the scales were dusted for fingerprints or tested for DNA. (Trial Tr., p. 128.) He estimated that the search warrant team numbered anywhere between ten to fifteen men. (Trial Tr., p. 125.)

{¶ 10} Officer Richard Geraci testified that there were "a few males" in the residence when the officers gained entry. He explained that the officers knocked and announced their presence, but when no one answered, they used force to open the door. (Trial Tr., p. 136.) Officer Geraci testified that, in his experience, occupants who do not answer the door are trying to get rid of evidence inside the house. (Trial Tr., p. 137.)

{¶ 11} Officers secured the occupants on the ground and handcuffed them before executing the search warrant. (Trial Tr., p.

138.) Officer Geraci was in charge of creating a written inventory of all of the items recovered during the search. (Trial Tr., p. 139.)

{¶ 12} Officer Robert Patton testified the he was responsible for recovering identification from the occupants and searching their persons. When he frisked Appellant, Officer Patton found four packets of Suboxone strips, $371.00 in cash, and a driver's license in his wallet. Appellant's driver's license listed his residence as 913 Orange Street. (Trial Tr., pp. 130, 145.) Officer Patton testified that Suboxone strips were prescribed for patients attempting to overcome heroin addiction, but that there is a "black market" for individuals who abused the product as well. (Trial Tr., pp. 145-146.)

{¶ 13} Officer John S. Aeppli testified that he was assigned to search the living room and the dining room. He recovered a small bag of marijuana from an end table. (Trial Tr., p. 150.)

{¶ 14} Officer Jose Morales testified that he was assigned to the bedrooms, which were located on the second floor of the residence. Officer Morales recovered a bag of marijuana in a pair of jeans lying on top of the dresser and a debit card bearing Appellant's name, which was also found on top of the dresser, but was not in the jeans. (Trial Tr., pp. 154-156.)

{¶ 15} On cross-examination, Officer Morales conceded that he did not seize or photograph the jeans, and that the bedroom contained other men's clothes. Despite testifying that he was assigned to search the bedrooms, Officer Morales conceded that he did not search the second bedroom. (Trial Tr., p. 158.)

{¶ 16} Officer Michael Brindisi testified that he was responsible for photographing all of the items confiscated during the search. (Trial Tr., p. 163.) Officer Brindisi conceded that the debit card and marijuana were depicted in a single photograph, both being held by an officer, despite the fact that the debit card was found lying on the dresser and the marijuana was found in a pair of jeans lying separately on the dresser. (Trial Tr., p. 170.) There also was no photograph of the substance found in the waste can after it had been collected and put in an evidence bag. (Trial Tr., p. 168.)

{¶ 17} Martin Lewis, a BCI criminologist with over fifteen years of experience and who had testified in nearly 200 trials, tested the substance found in the waste can. (Trial Tr., p. 175.) His testimony was based on his written report, which was kept in the regular course of business at BCI. According to the report, the substance weighed less than .10 grams and was found to contain cocaine base or crack cocaine. (Trial Tr., p. 177.)

{¶ 18} On March 24, 2016, Appellant was indicted on one count of drug possession in violation of R.C. 2925.11(A), (C)(4)(a), a felony of the fifth degree, with a forfeiture specification (which related to the cocaine); one count of drug possession in violation of R.C. 2925.11(A), (C)(2)(a), a first degree misdemeanor (Suboxone ); and one count of illegal use of or possession with the intent to use drug paraphernalia in violation of R.C. 2925.14(C)(1), (F), a misdemeanor of the fourth degree. The state did not prosecute the charges lodged in counts two and three, instead relying on the presence of the Suboxone in Appellant's wallet and the marijuana and drug paraphernalia found in the residence to prosecute the possession charge in count one.

{¶ 19} A jury found Appellant guilty of violating R.C. 2925.11(A), (C)(4)(a), which criminalizes the possession of cocaine or a compound, mixture, preparation, or substance containing cocaine. Possession of less than five grams of cocaine is a felony of the fifth degree. Appellant forfeited the $371.00 in cash confiscated during the search without objection, and was sentenced to a term of imprisonment of twelve months.

Analysis

{¶ 20} Appellant's first and second assignments of error challenge the evidence adduced at trial and will be addressed together, but out of order, for the purpose of clarity.

ASSIGNMENT OF ERROR NO. 1

THE JURY'S VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

ASSIGNMENT OF ERROR NO. 2

THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.

{¶ 21} "When a court reviews a record for sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " State v. Maxwell , 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

{¶ 22} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) ; State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. "Although a court of appeals may determine that a judgment is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence." Thompkins at 387, 678 N.E.2d 541.

{¶ 23} The weight to be given to the evidence and the credibility of the witnesses are nonetheless issues for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).

{¶ 24} In his opening argument, defense counsel stated that 833 Mercer Street was the residence of Appellant's aunt, and that Appellant paid for the cable television as a gift to his aunt. However, there was no testimony or other evidence offered at trial to establish that Appellant's aunt, or any other individual, resided at 833 Mercer Street.

{¶ 25} In his closing argument, defense counsel advanced the theory that the officers cherry-picked the evidence, choosing to forego the search of the second bedroom after finding Appellant's debit card on the dresser in the first bedroom. Defense counsel argued that there may have been other evidence ignored by the officers, including DNA and fingerprint evidence, that may have implicated another individual.

{¶ 26} Defense counsel also attempted to diffuse the notion that Appellant was attempting to secrete the substance by discarding it in the kitchen waste can when the police knocked and announced. Defense counsel argued that Appellant would not leave a bag of marijuana on the end table, or discard cocaine in an empty waste can, when he could have discarded all of it in the kitchen sink. In fact, there was no testimony offered to establish Appellant's whereabouts in the home when the door was breached.

{¶ 27} In this appeal, Appellant asks us to focus on evidence that is not in the record, rather than considering the evidence offered at trial. While it is clear from the record that the search of the residence was abbreviated due to the discovery of evidence implicating Appellant, the evidence offered at trial was nevertheless sufficient to support Appellant's conviction. Despite the fact that Appellant's driver's license listed a different address, the record establishes that he was more than an occupant at 833 Mercer Street. The cable bill found in the living room was in his name and his debit card was found in one of the bedrooms. The evidence establishes that he had access to and control of both floors of the house.

{¶ 28} Of equal import, the presence of items commonly associated with the illegal sale of drugs found throughout the residence belies any argument that he was unaware of the presence of the cocaine. Marijuana was found in the living room and bedroom. Not one, but three scales were found in various parts of the kitchen. Suboxone was found in his wallet.

{¶ 29} The evidence establishes at least that Appellant spent a sufficient amount of time at 833 Mercer Street to finance the cable television service. Circumstantial evidence supports the conclusion that he maintained 833 Mercer Street either for personal or business purposes. Accordingly, we find that the presence of drugs and drug paraphernalia, coupled with indicia that Appellant was more than a simple occupant at 833 Mercer Street on the day the search was conducted, was sufficient to sustain his conviction for possession of cocaine.

{¶ 30} Likewise, we find that the jury did not lose its way in convicting Appellant for drug possession. Despite defense counsel's argument, no evidence was offered to establish that Appellant's aunt, or any other individual, resided at 833 Mercer Street. Consequently, no fact-based explanation was provided for Appellant's name on the cable bill. The evidence adduced at trial demonstrated that Appellant paid for a utility at the house, an entertainment service, and the presence of his debit card in the upstairs bedroom established that Appellant had access to and used both floors of the residence. Finally, drugs and drug paraphernalia located throughout the house evinces Appellant's awareness of their presence.

{¶ 31} Based on the evidence offered at trial, this record contains sufficient evidence to support Appellant's conviction, and his conviction is supported by the manifest weight of the evidence. Accordingly, Appellant's first and second assignments of error are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED IN ADMITTING EXPERT TESTIMONY FROM THE BCI TECHNICIAN WHO TESTED THE DRUGS IN QUESTION.

{¶ 32} Decisions involving the admissibility of evidence are reviewed under an abuse of discretion standard. State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19 ("It is well established that a trial court's decision to admit evidence is an evidentiary determination within the broad discretion of the trial court and subject to review on an abuse-of-discretion standard.")

{¶ 33} Defense counsel did not object to the admission of Lewis' testimony at trial. An appellate court does not normally resolve an alleged error if it was never brought to the attention of the trial court "at a time when such error could have been avoided or corrected by the trial court." State v. Carter , 89 Ohio St.3d 593, 598, 734 N.E.2d 345 (2000). In the absence of objection, we may only examine the court's actions for plain error. Id.

{¶ 34} Plain error should be used "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Barnes , 94 Ohio St.3d 21, 759 N.E.2d 1240 (2002). A claim of plain error will not succeed unless, but for the error, the outcome of the trial would have been different: "the test for plain error is stringent. A party claiming plain error must show that (1) an error occurred, (2) the error was obvious, and (3) the error affected the outcome of the trial." State v. Davis , 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 378.

{¶ 35} Evid.R. 702 sets forth the standard for determining the admissibility of expert testimony. State v. Jones , 90 Ohio St.3d 403, 416, 739 N.E.2d 300 (2000). Evid.R. 702(C) requires that an expert's testimony be "based on reliable scientific, technical, or other specialized information." However, a plurality of the Ohio Supreme Court recently recognized that, under Evid.R. 702, experts are not required to use any particular "magic words." State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 162 (Per O'Connor, C.J., with two justices concurring and two justices concurring in judgment only), citing Lucsik v. Kosdrosky , 8th Dist., 2017-Ohio-96, 79 N.E.3d 1284, ¶ 15.

{¶ 36} An expert's opinion is admissible so long as it provides evidence of more than mere possibility or speculation. Id. , citing Lucsik at ¶ 15 (expert testimony admissible even though not offered to "a reasonable degree of medical certainty"); Butler v. Minton , 6th Dist. No. E-05-061, 2006-Ohio-4800, 2006 WL 2640269, ¶ 17 (same); see also Johnson v. Memphis Light Gas & Water Div. , 695 Fed.Appx. 131, 136-137 (6th Cir. 2017) (same result under the Federal Rules of Evidence). Instead, the expert's testimony, when considered in its entirety, must be equivalent to an expression of probability. Lucsik at ¶ 15, citing Jeffrey v. Marietta Mem. Hosp. , 10th Dist. Nos. 11AP-492 and 11AP-502, 2013-Ohio-1055, 2013 WL 1187544, ¶ 48 ; Frye v. Weber & Sons Serv. Repair , 125 Ohio App.3d 507, 514, 708 N.E.2d 1066 (8th Dist. 1998).

{¶ 37} Defense counsel did not object to the trial court's declaration of Lewis as an expert. Lewis provided the following testimony based on a report he generated the previous week:

Q Okay. And what are the findings that are indicated on your laboratory report?
A The findings are that there was an off white substance weighing less than 0.10 grams and it was found to contain cocaine base or crack cocaine.
Q And, Mr. Lewis, how is cocaine base or crack cocaine classified in terms of it being a narcotic?
A It's classified as a Schedule II controlled substance in Ohio.

(Trial Tr., pp. 176-177.)

{¶ 38} Lewis did not testify regarding the specific test or tests he used to analyze the substance. He did not attest to the degree of likelihood that could be attributed to his findings. Defense counsel did not cross-examine Lewis. Nonetheless, Lewis' testimony appears to meet the broad standard announced by the Ohio Supreme Court earlier this year in Beasley , supra .

{¶ 39} Lewis stated unequivocally that the substance tested was cocaine. In other words, Lewis' testimony does not establish the possibility that the substance is cocaine, but, instead, the certainty that the substance is cocaine. Consequently, the trial court did not commit plain error in admitting Lewis' testimony, and Appellant's third assignment of error is without merit and is overruled.

{¶ 40} Finally, although not offered as a separate assignment of error, Appellant contends that the trial court committed a substantial and prejudicial error in its jury instructions. Appellant takes issue with the following portion of the jury instructions:

The defendant is presumed to be innocent unless or until his guilt is established by proof beyond a reasonable doubt. So the defendant must be found guilty unless the state produces evidence which convinces you beyond a reasonable doubt of every essential element charged in the indictment. (Emphasis added.)

(Trial Tr., p. 207.)

{¶ 41} Defense counsel did not object to the jury instructions. Therefore, we review this issue only for plain error.

{¶ 42} The trial court correctly stated the state's burden of proof during its preliminary instructions. (Trial Tr., pp. 26-27.) Defense counsel correctly reiterated the state's burden during voir dire. (Trial Tr., pp. 48-49.) The trial court also correctly stated the burden of proof at the conclusion of the jury instructions:

If you find that the state proved beyond a reasonable doubt all of the essential elements of this crime of possession of cocaine, then your verdict must be guilty.
If you find that the state failed to prove beyond a reasonable doubt any one or more of the essential elements of the offense of possession of cocaine, then your verdict must be not guilty.

(Trial Tr., p. 218.)

{¶ 43} Jury instructions must "correctly and completely state the law." Groob v. KeyBank , 108 Ohio St.3d 348, 2006-Ohio-1189, 843 N.E.2d 1170, ¶ 32. In assessing jury instructions, a reviewing court must decide not only whether the instruction at issue is correct in the abstract but also whether it is potentially misleading. State v. White , 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 52. If an instruction is ambiguous, a reviewing court must determine " 'whether there is a reasonable likelihood that the jury has applied [it] in a way' that violates the Constitution." Estelle v. McGuire , 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), quoting Boyde v. California , 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). And when examining jury instructions, an appellate court should not judge a single instruction in artificial isolation, but instead should view it in the context of the overall charge. State v. Madrigal , 87 Ohio St.3d 378, 396, 721 N.E.2d 52 (2000).

{¶ 44} In State v. Wilks , --- Ohio St.3d ----, 2018-Ohio-1562, --- N.E.3d ----, the Ohio Supreme Court addressed a jury instruction that read, in pertinent part: "If you find that the state failed to prove beyond a reasonable doubt all the essential elements of aggravated murder as defined in Count 1, then your verdict must be not guilty of that offense." (Emphasis deleted.) Id. at ¶ 121. Appellant argued that the jury instruction could be misunderstood to read that reasonable doubt on fewer than all of the essential elements should nonetheless result in a guilty verdict. In a review for plain error, the Court held that the state's burden of proof was correctly stated during various stages of the trial and that "[t]hese clear instructions remove any uncertainty that the jury found proof beyond a reasonable doubt as to each of the essential elements of the aggravated-murder charge." Id. at ¶ 128.

{¶ 45} The same is true here. Although an error occurred, and that error is obvious, there is no indication that it affected the outcome of the trial. The trial court's misstatement during the first part of the jury instructions was corrected at the conclusion of the jury instructions. Importantly, the state's burden of proof was reiterated several times during the trial. Consequently, this record reflects that the trial court did not commit plain error, as that term is defined in Ohio.

Conclusion

{¶ 46} In summary, Appellant's evidentiary challenges are not well taken, and the trial court did not commit plain error in its jury instructions. For the foregoing reasons, the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Robb, P.J., concurs.


source: Caselaw Access Project

author: PIETRYKOWSKI, J.

license: Public Domain

text:
    IN RE A.B., M.B., J.B., A.P.
    No. L-18-1136
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: October 17, 2018
    Christopher S. Clark, for appellant.
    Angela Y. Russell, for appellee.
    DECISION AND JUDGMENT
   PIETRYKOWSKI, J.

{¶ 1} Appellant, D.B., appeals from the May 18, 2018 judgment of the Lucas County Court of Common Pleas, Juvenile Division, which denied her motion, as a paternal aunt to A.B., M.B., J.B., and A.P., to obtain legal custody of these children who were previously found to be neglected and dependent. For the reasons which follow, we affirm.

{¶ 2} On appeal, appellant asserts a single assignment of error:

IN DENYING THE PATERNAL AUNT'S MOTION FOR CUSTODY, THE TRIAL COURT ABUSED ITS DISCRETION AS A PREPONDERANCE OF THE EVIDENCE DEMONSTRATES THAT AWARDING CUSTODY TO APPELLANT IS IN THE BEST INTEREST OF THE CHILDREN.

{¶ 3} After a child has been adjudicated abused, neglected, or dependent, the juvenile court may award legal custody to any individual who has filed a motion for legal custody, pursuant to R.C. 2151.353(A)(3), prior to the disposition hearing and signs a statement of understanding. In the case before us, Lucas County Children Services ("LCCS") moved for permanent custody pursuant to R.C. 2151.415(A) and appellant moved for legal custody pursuant to R.C. 2151.353(A)(3) and filed a motion to intervene.

{¶ 4} Before the hearing began, the juvenile court denied appellant's motion to intervene finding that she never acted in loco parentis to the children. The court granted appellant the opportunity to present testimony and be cross-examined on her motion for legal custody. Ultimately, the trial court denied the motion for legal custody and appellant appealed only the denial of her motion for legal custody.

{¶ 5} We first address the argument of LCCS that appellant lacks standing to appeal. The jurisdiction of the juvenile court to consider the motion for legal custody was clearly established pursuant to R.C. 2151.353. Standing to appeal a final order of the juvenile court is controlled by R.C. 2501.02 and the common law principal that an appeal can be filed only by " 'a party aggrieved by the final order appealed from. Appeals are not allowed for the purpose of settling abstract questions, but only to correct errors injuriously affecting the appellant.' " State ex rel. Winfree v. McDonald , 147 Ohio St.3d 428, 2016-Ohio-8098, 66 N.E.3d 739, ¶ 8, citing State ex rel. Gabriel v. Youngstown , 75 Ohio St.3d 618, 619, 665 N.E.2d 209 (1996), quoting Ohio Contract Carriers Assn. v. Pub. Util. Comm. , 140 Ohio St. 160, 42 N.E.2d 758 (1942), syllabus. Therefore, we have held that a nonparent who never moved to intervene nor moved for legal custody cannot appeal a permanent custody award. In re Titionna K. , 6th Dist. Lucas No. L-06-1232, 2007-Ohio-1861, 2007 WL 1165789, ¶ 5. However, the unique issue in this case is whether the nonparent who filed both a motion to intervene and a motion for legal custody, both of which were denied, has standing to appeal the denial of the motion for legal custody.

{¶ 6} Generally, the parties to a R.C. 2151.27(A) abuse, neglect, or dependency action are the child, the parents, the state, and the guardian ad litem. Juv.R. 2(Y). The juvenile court has the discretion to allow any other individuals to participate if their "presence is necessary to fully litigate an issue presented." In re R.V. , 6th Dist. Lucas Nos. L-10-1278, L-10-1301, 2011-Ohio-1837, 2011 WL 1457118, ¶ 44. Furthermore, the juvenile court is required to permit an individual to intervene "when a statute of this state confers an unconditional right to intervene" or "the applicant claims an interest relating to * * * the subject of the action," Civ.R. 24(A), and has discretion to allow any other party to intervene. Civ.R. 24(B).

{¶ 7} At common law, grandparents had no constitutional right to participate in a custody action. In re Schmidt , 25 Ohio St.3d 331, 336, 496 N.E.2d 952 (1986). In dicta, in a concurring opinion, Justice Celebrezze indicated that grandparents had no right to intervene pursuant to R.C. Chapter 2151 unless they had acted in loco parentis to their grandchildren. Id. at 337-338, 496 N.E.2d 952. We applied this reasoning in a permanent custody action to hold that the denial of a grandparent's motion to intervene was not an abuse of discretion where the grandparent had never stood in loco parentis to their grandchild. In re R.V. at ¶ 45. This holding became the basis for the denial of the motion to intervene in the case before us. However, the juvenile court also entertained appellant's motion for legal custody.

{¶ 8} The law is unclear whether a nonparent, permitted to file a motion for legal custody as a nonparty under R.C. 2151.353(A)(3), must also move to intervene to protect their right to participate in the action or appeal the denial of their motion for legal custody. One court has implied that the nonparent must be made a party for the trial court to consider a motion for legal custody.

In re A.G. , 9th Dist. Summit No. 28861, 2018-Ohio-2835, 2018 WL 3479203, ¶ 19. Several courts have held that the juvenile court implicitly makes the nonparent a party by considering a motion for legal custody. In re T.N.W. , 8th Dist. Cuyahoga No. 89815, 2008-Ohio-1088, 2008 WL 660534, ¶ 7 ; In re P.P. , 2d Dist. Montgomery No. 19582, 2003-Ohio-1051, 2003 WL 863568, ¶ 21 ; In re Travis Children , 80 Ohio App.3d 620, 625-626, 609 N.E.2d 1356 (5th Dist.1992). Yet another court allowed the motion for legal custody to be maintained but held that the nonparent only had standing to appeal the denial of the motion to intervene. In re D.S. , 9th Dist. Summit No. 24554, 2009-Ohio-4658, 2009 WL 2873168, ¶ 13. We have held that the failure to file a written motion for legal custody pursuant to the statute limits the nonparent's right of appeal solely to the issue of whether the trial court erred by ruling on the motion without an evidentiary hearing. In re R.V. , 6th Dist. Lucas Nos. L-10-1278, L-10-1301, 2011-Ohio-1837, 2011 WL 1457118, at ¶ 52.

{¶ 9} We conclude that to fully participate in the action and challenge the permanent custody award, a nonparent would have to have been made a party to the action. In re J.B. , 8th Dist. Cuyahoga No. 103521, 2016-Ohio-5513, 2016 WL 4497100, ¶¶ 45-50. However, the nonparent whose motion to intervene was denied has a right to appeal the denial of that motion. In re Kei'Andre P. , 6th Dist. Lucas No. L-00-1203, 2001 WL 127333, *3 (Feb. 16, 2001) (the denial of a motion to intervene is an exception to the general rule that only parties to an action have standing to appeal.) Accord In re Guardianship of Sweeney , 8th Dist. Cuyahoga No. 103285, 2016-Ohio-3260, 2016 WL 3091957, ¶¶ 19-21 (a party whose motion to intervene in a guardianship action was denied has standing to appeal because she had an interest in the proceeding and was prejudiced by the denial of her motion). Furthermore, for the limited purpose of appealing the denial of a R.C. 2151.353(A)(3) motion for legal custody, we find filing such a motion gives rise to another exception to the general rule that a "party" status is necessary to appeal. Compare In re R.V. (an oral motion for legal custody does not give rise to standing to appeal). Otherwise, the denial of appellant's motion to intervene while addressing the nonparent's motion for legal custody accomplished nothing more than cutting off appellant's right to appeal the denial of her motion for legal custody.

{¶ 10} Therefore, we will consider appellant's sole assignment of error. When an agency moves for legal custody pursuant to R.C. 2151.415(A)(3), the juvenile court must base its order of disposition upon "the best interest of the child as supported by the evidence presented at the dispositional hearing." R.C. 2151.415(B). Likewise, R.C. 2151.415(F) and 2151.42(B), require the court to consider the best interest of a child before modifying or terminating an award of legal custody. However, when an individual moves for legal custody pursuant to R.C. 2151.353(A)(3), that statute does not require the juvenile court to find the award of legal custody is in the best interest of the child. In re G.M. , 8th Dist. Cuyahoga No. 95410, 2011-Ohio-4090, 2011 WL 3618442, ¶¶ 15-16. However, the underlying consideration for all dispositional determinations involving custody of a child made by the juvenile court are based upon consideration of the best interest of a child and the constitutional and other legal rights of the parents. R.C. 2151.01 ; In re Cunningham , 59 Ohio St.2d 100, 108, 391 N.E.2d 1034 (1979) ; Linger v. Weiss , 57 Ohio St.2d 97, 101, 386 N.E.2d 1354 (1979), fn. 7 ; In re Tilton , 161 Ohio St. 571, 575, 120 N.E.2d 445 (1954).

{¶ 11} In dispositional hearings involving motions for legal custody by nonparents, appellate courts have often held that the juvenile court must consider the best interest factors of either R.C. 2151.414(D) (applicable only to motions of an agency for permanent custody or a permanent living arrangement) or R.C. 3109.04(F) (as applied to custody disputes arising outside the domestic relations domain as habeas corpus actions or R.C. 2151.23(A)(2) actions between parents and nonparents) under a preponderance of the evidence standard. In re G.M. at ¶ 15 (citations omitted); In re B.H., P.H. , 6th Dist. Lucas Nos. L-17-1126, L-17-1127, 2018-Ohio-1238, 2018 WL 1566587, ¶ 29 ; In re K.V. , 6th Dist. Lucas No. L-11-1087, 2012-Ohio-190, 2012 WL 171973, ¶ 19. However, the General Assembly did not specify the factors to be considered for legal custody as it did for other dispositional orders. The absence of a specific requirement to consider statutory factors of best interest may be due to the fact that legal custody is not as extreme as an award of permanent custody. In re C.R. , 108 Ohio St.3d 369, 2006-Ohio-1191, 843 N.E.2d 1188, ¶ 17. Therefore, we must presume the juvenile court is free to consider any best interest factors it deems appropriate. In re G.M. at ¶¶ 15-16. Furthermore, those findings must be supported by a preponderance of the evidence admitted at the dispositional hearing. In re B.L. , 6th Dist. Lucas No. L-15-1030, 2016-Ohio-738, 2016 WL 769000, ¶ 7.

{¶ 12} On appeal, an appellate court will not reverse the dispositional award unless the juvenile court abused its discretion. In re K.Q. , 11th Dist. Ashtabula No. 2017-A-0060, 2018-Ohio-906, 2018 WL 1256658, ¶ 14 ; In re B.H., P.H. at ¶¶ 28-29. An abuse of discretion requires that we find the trial court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 13} In the case before us, the following evidence was presented at the dispositional hearing. The initial caseworker testified LCCS received a referral regarding the family in late 2016 based upon allegations of multiple concerns regarding the children and their home environment, including inadequate food and clothing for the children, the children were dirty, the parents were abusing substances, and the children were sexually acting out upon each other and the father was sexually acting out on the children. Appellant assisted LCCS in removing the children from their home on February 15, 2017. At that time, the children were found to be very dirty and they smelled of urine and other foul smells and they had bite marks on them, perhaps from bedbugs. The children were immediately placed in the temporary custody of appellant and remained in her care until March 31, 2017, when they were moved to separate foster homes. The children were eventually adjudicated to be dependent and neglected by their parents.

{¶ 14} As early as March 2, 2017, issues such as appellant's caregiving abilities, the children's school attendance, the fact that the children were still dirty, the lack of sufficient beds for appellant's own children, a broken washer and dryer, and mice in the home, had prompted the agency to consider a change in placement. The caseworker testified attempts to remedy some of the conditions had not resolved all of the issues. The children were later moved to several different foster homes due to their extremely unstable behavior. The second caseworker testified the children remained in counseling because of the traumatic experiences they reported. The caseworker did not investigate the disturbing statements because the children had already been removed and the parents were not cooperating with services. The caseworker believed the three children were adjusting pretty well to their foster homes and their basic needs were being met. They indicated they liked their home. A.B., who had to be removed to a separate home, was reported as doing well in his placement and in school, with a few areas of concern remaining, such as bedwetting.

{¶ 15} Another caseworker testified she had been involved with the children since April 2018, and had visited the children in their foster homes and during their visitations at LCCS with their mother. She believed the children were "flourishing" in their current placement because their behaviors had improved. Both foster parents had contacted her prior to the hearing and had no concerns, which was a change from the last visit with the previous caseworker at the beginning of the month. Both M.B. and A.B. were reported to have made significant improvement.

{¶ 16} Finally, a Department of Family Services supervisor testified she had conducted a home study after appellant filed her motion for legal custody. The supervisor found the home was clean but had very little furniture and the closets had no doors. While she did not find any hazards in the home, she denied the home study because of school attendance issues, the issues with compliance with J.M.'s custody order, the continued lack of beds for every child, the lack of toys or children's things, and minimal clothing found only in a laundry basket in the laundry room.

{¶ 17} Appellant testified that she had been involved with the children since their birth, assisting the mother in taking the children to doctor appointments, purchasing personal items for them, taking them to special activities, participated in daily activities with them, and establishing a relationship with them. Therefore, she desired to obtain legal custody of the children. Appellant also has four children of her own, aged 10, 9, 7, and 2, and legal custody of another relative's child, J.M., aged 12.

{¶ 18} Upon a review of the transcript, we find several areas of concern were presented at the disposition hearing regarding appellant's motion for legal custody. First, appellant testified that she had been employed by Genacross for eight months working with children with developmental disabilities and behaviors. However, she further testified that despite her special training to spot the types of allegations made in this case and the considerable amount of time she testified she had spent with the children and family, she never observed any of the allegations first raised in this case with respect to these four children.

{¶ 19} Second, there were significant issues raised regarding appellant's compliance with the custody order regarding J.M. Until J.M. was old enough to attend school, appellant testified, J.M. was only allowed to see her mother when appellant was present. However, despite the order of supervised visitation between J.M. and her mother, appellant admitted she later allowed J.M. to stay with her mother because appellant believed the mother had resolved the issues requiring removal of her children and her older children had been returned to her. Appellant asserted she had not sought a change in visitation order because she did not have the funds to do so.

{¶ 20} The DFS supervisor testified she investigated concerns arising from appellant's inconsistent statements about J.M.'s school attendance and learned appellant was not listed in the school records even as an emergency contact. Appellant testified that she had not enrolled J.M. in school because she did not have the necessary paperwork. The school also reported that the biological mother had called on April 16, 2018, to allow appellant to pick J.M. up from school, which was the day LCCS was interviewing all of the children regarding this case. Furthermore, the supervisor determined that J.M.'s dental records reflected only the biological mother's address. The supervisor contacted the biological mother who admitted that J.M. had always been living with the biological mother. Afterward, the supervisor was informed the biological mother reported J.M. spent time with appellant. The supervisor informed appellant a report of a questionable fraud would be made to the Job and Family Services regarding payments to appellant for J.M. because both the biological mother and appellant were indicating they had a shared placement arrangement.

{¶ 21} Fourth, concerns were raised with appellant's ability to get the older children to school on time. The initial caseworker testified that out of the 32 school days appellant had the children, A.B. was late 15 days and M.B. was late 14 days. The DFS supervisor testified she reviewed the school records regarding appellant's three school-aged children and found there were a substantial number of days during the prior school year that they had been tardy and many days that they had not attended at all. One child had 58 unexcused late arrivals, 8 unexcused absences; another had 57 unexcused late arrivals; another had 59 unexcused late arrivals for this school year.

{¶ 22} Appellant admitted she struggled with getting all of the children to school. She blamed the lack of clothing, a broken washer and dryer, and the lack of assistance or vouchers from LCCS. However, appellant also testified she dropped some of the children off at school at 8:20 a.m. for the school breakfast provided at 8:45 a.m. She believed the children played outside until the bell rang and then went to breakfast before heading to class, which resulted in their being marked as tardy. She further testified she had been working with the school regarding her own children over the months prior to the hearing to eliminate their tardiness.

{¶ 23} Fifth, the DFS supervisor learned, after her denial of the home study, that there had been a neglect referral substantiated against appellant in September 2017. Appellant admitted her youngest child had been found wandering in the neighborhood alone. She asserted he had left the home of appellant's aunt during a family gathering, without appellant's knowledge, to visit a friend next door and became lost on his way home.

{¶ 24} On her behalf, appellant testified there were initially problems with the number of beds and she was unable to get help from LCCS, but at the time of the hearing she has room for the children and now has beds available for them. However, she testified on cross-examination that her children do not sleep in their own beds and choose to sleep on the couch or in her room. Appellant believed she is financially able to care for the children without the agency's help. She testified that she recognized the special needs and disabilities of these children and felt confident to address their issues. She also testified she would abide with court orders regarding visitation with the parents.

{¶ 25} Although she was on leave of absence at the time of the hearing, she testified she had been working eight-to-nine hours a day on a seven-days-on and six-days-off schedule. When she is working, the father of her children takes care of their children after school and returns them to her home in the evening until she returns home from work. She also testified that the father began to transport the children to school in late February. She testified the children at issue had a good relationship with the father of her children. She further testified that if she was given legal custody of these children:

I wouldn't really want to work. Being that I want to put my full forth and effort into this. You know, like I have been in this field for over 6 years and I am, like, literally, you know, burned out to a certain extent. I done been from a house manager to running a day-hab. I am just lightweight burned out with this whole ordeal of working with the kids. I've been doing it for so many years.

{¶ 26} At the end of the hearing, the juvenile court noted that while it was clear that appellant had good intentions, it was also clear that appellant had been overwhelmed by the number of children, was unable to get the children to school on time, and had inadequate transportation and beds. Furthermore, the court found appellant's noncompliance with J.M.'s custody order was a significant concern since the court had ordered supervised visitation and appellant was either ignoring it, or the child was never removed from her parental home in the first place. Finally, the court noted concerns of regression for all of the children with a change in placement in light of the trauma they suffered from removal, their continuing special needs and behavioral issues, and the level of stabilization have they have achieved in their current foster homes.

{¶ 27} In its judgment entry, the juvenile court found concerns regarding the lack of supervision, attendance at school by the children involved in this action as well as appellant's own children, the cleanliness and adequacy of the home, and a failure to abide by court orders of supervised visitation regarding another child for which she has custody. Based on these concerns, the court found it would not be in the best interest of the children to award legal custody to appellant.

{¶ 28} On appeal, appellant first argues there was no evidence presented to substantiate a finding that the children at issue were unsupervised. We disagree. Appellant testified she left the children unsupervised for 20 minutes before school and, as a result, the children failed to participate in the free breakfast program on time which led to being late to class. Furthermore, appellant admitted her own two year old left a family gathering without her knowledge.

{¶ 29} Second, appellant argues there was no evidence presented to substantiate the finding that the tardiness at school was the result of appellant's actions. She contends that the children missed school because they had no clothing and LCCS did not provide her with any clothing or vouchers. The LCCS testimony regarding missed school related to appellant's own children, whom we presume would have had sufficient clothing. LCCS only presented evidence relating to the tardiness of the children at issue, which appellant testified was solely due to the fact that she dropped her kids off at school unattended. While appellant may have resolved the tardiness issue regarding her children shortly before trial, the matter of permanent placement of neglected, abused, and/or dependent children cannot be delayed while a potential custodian corrects parenting issues.

{¶ 30} Third, appellant argues there was no evidence presented to substantiate the finding that the home was unclean or inadequate. We agree that the DFS supervisor testified the home was clean and there were no safety hazards and, therefore, the finding of uncleanliness was not supported by the evidence. However the DFS supervisor also testified that she found there was a continued lack of beds for every child, the home was absent of toys, and only minimal clothing was found in a laundry basket in the laundry room. This evidence was enough to support a finding that the home was inadequate.

{¶ 31} Fourth, appellant argues there was no evidence to substantiate the finding that she was unreliable because she had not complied with court orders regarding the visitation of J.M. and she testified that she would comply with the court's orders regarding the children at issue. She argues the court failed to also consider that appellant cooperated with LCCS when they first took the children into shelter care and took custody of the children at that time despite the fact that she was engaged in moving to another home. Furthermore, appellant asserts the court did not consider the significant efforts appellant contributed to the treatment and care of the children.

{¶ 32} We find there was sufficient evidence to support the juvenile court's finding that not only did appellant disobey a court custody order regarding J.M., but she may never have actually taken physical custody of the child at all. No amount of assistance to LCCS in this case can override the fact that appellant deliberately disobeyed a court order designed to protect a child from harm.

{¶ 33} We also note that appellant fails to address the remaining best interest factors supporting the denial of her motion for legal custody. The children have finally begun to overcome the trauma of the parental home and their removal and the potential of regression is significant. Furthermore, appellant is a single mother who already has five young children in her home, three of whom have special needs, and she has expressed that she feels "burned out" from her job of working with disabled kids over the past six years. In conclusion, we find that there was a preponderance of evidence to support the juvenile court's finding that the best interest of the children weighed in favor of denying appellant legal custody of the children. Appellant's sole assignment of error is not well-taken.

{¶ 34} Having found that the juvenile court did not commit error prejudicial to appellant and that substantial justice has been done, the judgment of the Lucas County Court of Common Pleas, Juvenile Division is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Arlene Singer, J.

James D. Jensen, J.

CONCUR.


text:
    Eric FERGUSON, M.D., Appellant v. PROMEDICA CENTRAL PHYSICIANS, LLC, et al., Appellees
    No. L-17-1259
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: October 26, 2018
    John D. Franklin and Marilyn L. Widman, Toledo, for appellant.
    Margaret J. Lockhart and Marshall A. Bennett, Toledo, for appellees.
    DECISION AND JUDGMENT
   PIETRYKOWSKI, J.

{¶ 1} Appellant, Eric Ferguson, M.D., appeals the judgment of the Lucas County Court of Common Pleas, which awarded summary judgment in favor of appellees, ProMedica Central Physicians, LLC, The Toledo Hospital, and Daniel K. Cassavar, M.D., on appellant's claim for retaliation. For the reasons that follow, we affirm.

I. Facts and Procedural Background

{¶ 2} Appellant began his employment with ProMedica Central Physicians in 2006. In 2011, while employed through ProMedica Central Physicians, appellant began working full-time at The Toledo Hospital as a trauma, general, and critical care surgeon. In April 2013, the existing trauma medical director for The Toledo Hospital retired, and appellant was named Interim Trauma Medical Director. As Interim Trauma Medical Director, appellant oversaw the trauma team, which consisted of trauma surgeons as well as advanced practice providers (both physicians' assistants and nurse practitioners), also known as "APPs" or "midlevels." In addition, appellant was responsible for successfully guiding The Toledo Hospital through the reverification process to remain a Level 1 trauma center.

{¶ 3} During appellant's time as Interim Trauma Medical Director, the midlevels raised several complaints about their compensation, schedule, working conditions, and lack of staffing. At that time, the midlevels were employed directly by The Toledo Hospital, and appellant was not responsible for setting the midlevels' pay or for hiring or assigning the midlevels to the trauma team.

{¶ 4} In addition to their general complaints, the midlevels also complained about appellant specifically. Wendy Papenfuss, Director of Human Resources for The Toledo Hospital, testified that the midlevels reported in July 2014 to her and Dr. Joseph Sferra, Director of Surgical Services at The Toledo Hospital, that appellant was "disrespectful, tried to exploit others' mistakes, and was sometimes spiteful." She stated that the midlevels "indicated a reluctance to report his behavior, for fear of retribution and retaliation." Wendy Jolliff, Assistant Director of the Advanced Practice Provider Department, testified that beginning in September 2014, when she became the midlevels' direct supervisor, she received numerous complaints about appellant, that he was rude and disrespectful, and that he would belittle the midlevels in front of patients and other employees. Jolliff stated that there were more complaints about appellant than about the midlevels' compensation or schedule, and that she would receive phone calls in the evening and on the weekends from midlevels who had poor interactions with appellant.

{¶ 5} Thereafter, in September 2015, the midlevels met again with Sferra, Papenfuss, and Jolliff, to express their concerns and displeasure with appellant. The midlevels presented a document that detailed some of their complaints, including that many of the trauma team members have left during appellant's tenure as the interim trauma medical director, that the team has eroded under his leadership, that he is disruptive during rounds towards all providers, that his temperament is unpredictable and he alienates those around him, and that he is unapproachable and dismissive regarding questions about patient management.

{¶ 6} Notwithstanding the concerns and complaints from the midlevels, in October or November 2015, Sferra, along with Arturo Polizzi, President of The Toledo Hospital, and Lori Johnston, President of ProMedica Central Physicians, decided to remove the interim label and name appellant the permanent trauma medical director. The decision came after an unfruitful two-year nationwide search to find a permanent replacement. Notably, appellant had interviewed for the position in 2014, but was not selected at that time. Sferra testified that it was a difficult decision to remove the interim label, and that he had concerns about appellant's ability to perform the duties of the job, as well as concerns that he would have a very unhappy group of midlevels and that they may even lose some surgeons. Sferra explained, however, that because appellant had been making substantial contributions towards The Toledo Hospital's goal of maintaining its Level 1 trauma center designation, Sferra thought that their best bet for getting through an upcoming site visit was to name appellant the permanent trauma medical director.

{¶ 7} On December 11, 2015, the decision was announced to all of the ProMedica employees by Lori Johnston and Daniel Cassavar in their weekly "5 Things to Know" email. At that time, Johnston and Cassavar were Co-Presidents of ProMedica Central Physicians, but Johnston assumed responsibility for the trauma surgeons. Cassavar testified that he was not involved in the search for the trauma medical director, or in the decision to name appellant the permanent trauma medical director.

{¶ 8} Shortly after appellant was named the permanent trauma medical director, appellant hosted a Christmas party at his house on a Saturday, and invited the entire trauma team. One of the midlevels who attended was S.P. Appellant testified that at the party, S.P. would follow him around as he went from group to group greeting people. At one point, appellant and S.P. were talking with a group of people and the subject of appellant's tattoos came up. S.P. then asked appellant if it was true that he had a nipple ring, which he confirmed. Appellant testified that on another occasion that evening, S.P. reached up and stroked his chest, found his nipple ring, and tugged on it while making a sexual sound. Later in the evening, after nearly all of the guests had left, S.P. pinned appellant up against the kitchen counter, put her hand on his chest, and closed her eyes and leaned in as if she were going to kiss him. Just then, appellant's wife intervened, and S.P. hurriedly left.

{¶ 9} S.P. remembers the party differently. S.P. testified that while they were standing in a group talking, another co-worker brought up the subject and showed the group appellant's nipple ring. S.P. also recounted that at the end of the night, when she was in the kitchen with appellant, another person was present who made some comment about sexual tension between appellant and S.P. Appellant then grabbed S.P.'s hand and rubbed it on his nipple ring over his shirt. He also put his arm around S.P., and grabbed her hand and pulled it around him behind his back. Appellant then told the other person to leave. S.P. testified that after the other person left, appellant told her she was pretty. S.P. stated that she thought appellant might try to kiss her at that point, so she ducked her head down towards his neck and then pulled away. S.P. then saw appellant's wife, and left as fast as she could.

{¶ 10} The following Monday, December 14, 2015, appellant reported the incident to his supervisor, Sferra. Appellant also informed Deanna Sievert, The Toledo Hospital's Chief Nursing Officer, who reported the incident to The Toledo Hospital Human Resources. Later that day, after working with S.P. and doing rounds in a group setting, appellant spoke again with Sievert. Appellant conveyed that "everything has not been awkward today," and he felt that S.P. was embarrassed, and that nothing further needed to be done regarding the situation. At that time, appellant rejected Sievert's suggestion that he and S.P. meet together with someone from human resources.

{¶ 11} However, after his conversation with Sievert, appellant again encountered S.P. Appellant testified that S.P. approached him and wanted to talk about what had happened at the Christmas party. Appellant responded that he did not think they needed to talk about it, and that he was "good." Appellant stated that S.P. insisted that they talk, and because he did not like the appearance of her standing close to him talking about personal things, the two took a walk around the hospital. Appellant testified that during their walk, S.P. continued to want to talk about the situation, but he repeatedly deflected her conversation. S.P. testified that she wanted to talk to appellant because several months earlier appellant had written an incident report against her over the treatment of a patient, and as a result they had a communication breakdown in their working relationship for some time until they talked about what had happened. S.P. did not want the same breakdown to occur again.

{¶ 12} At some point during the walk, appellant and S.P. were paged to respond to an emergency trauma. After working the trauma, appellant went to his office. A few minutes later, S.P. let herself into his personal sleeping quarters, which were only accessible through a security code, and confronted him again about the Christmas party. Appellant recounted that S.P. blocked the exit and told him that she could not stop thinking about what had happened at the party and that she had sexual feelings for him. He testified that S.P. repeatedly suggested that "maybe we should just kiss," "maybe it would be bad and, you know, wouldn't even like it." Appellant rejected S.P.'s advances and ushered her out of his office.

{¶ 13} S.P., on the other hand, testified that she went up to his office because they had not finished their conversation. S.P. stated that she made a comment to him that "if he would have kissed me, it would have been bad and maybe we wouldn't even be discussing it," and they both laughed. She testified that appellant then began talking about something about being sleep deprived and being a surgeon, and she was unsure of what he was saying. S.P. acknowledged asking appellant at some point if he had feelings for her and if that was the reason he had historically treated her in what she perceived to be a bullying or mean manner.

{¶ 14} The next morning, December 15, 2015, appellant emailed Sievert to inform her of what happened the night before, and then followed up by meeting with her in person to determine how the situation should be handled. Appellant was instructed to report the incident to Papenfuss, Director of Human Resources. In addition to calling Papenfuss, appellant emailed her, writing "I believe these interactions are not work appropriate, and I really need some help to assure that the inappropriate interactions immediately stop, because I believe I am being harassed with this inappropriate behavior." Papenfuss directed one of her human resources specialists, Colleen Alexander, to address the situation.

{¶ 15} Alexander interviewed appellant and S.P. on December 16 and 17, 2015, respectively. Both appellant and S.P. criticized Alexander's investigation. Appellant felt that Alexander was not taking his complaints seriously, was too focused on his personal life, and did not believe his version of the events. S.P. felt that Alexander was aggressive and threatening. Both felt that their statements were not accurately summarized.

{¶ 16} On December 21, 2015, upon the conclusion of the investigation, appellant met with Alexander and Sferra. At the meeting, Alexander communicated her conclusion, which was reached in conjunction with Papenfuss and ProMedica's legal department, that no sexual harassment occurred. She and Sferra informed appellant that he would have to find a way to work with S.P. Appellant commented that "If the roles were reversed, this would be handled differently," to which Alexander replied, "That might be."

{¶ 17} On the same day, S.P. met with Alexander and Jolliff. S.P. was instructed to stop trying to talk with appellant about the party. S.P. also ultimately received formal written discipline for discourteous treatment of appellant.

{¶ 18} Following the investigation, appellant began to alter his work behavior. For example, he refused to conduct patient rounds with S.P. unless a third person was with them. If a third person was unavailable, appellant would either wait or tell S.P. that he would do the rounds alone. S.P. testified that appellant also directed others to report on patients that she had examined, that he would ignore her, and that he would be mean and give her the silent treatment.

{¶ 19} During this time, in January 2016, Lori Johnston stepped down as co-president of ProMedica Central Physicians, leaving Daniel Cassavar as the president and appellant's superior.

{¶ 20} On February 14, 2016, an incident occurred again between appellant and S.P. An email from appellant to Cynthia Edwards-Tuttle, ProMedica Central Physicians Vice President of APPs, and Jolliff described what happened:

Just a heads up: [S.P.] announced today at the nursing station and in the presence of another PA that, "we need to talk" and indicated she wants to meet with you and Wendy Jolliff.
As usual, she attempted to stand too close to me today on multiple occasions, and I attempted to subtly put some distance between us. She also wanted to see patients alone together, and I indicated we should wait for the other PA, or that I would see the patients myself since she had already seen them on pre-rounds.
Also as usual, I am extremely uncomfortable around her in view of her past behavior, however, I am polite and focused on maintaining appropriate distance between her and me while providing appropriate care to our trauma patients.

S.P., again, had a different view of the events as documented in her email to Jolliff:

He acted the same way he did on Feb 10th but with a little more attitude. He disregarded me, talked past me about everything to Amy P, & made it blatantly obvious that he didn't want to be near me. It was almost like he was trying to put on a show to not be near me. It was not subtle. When he was going to go see 2 of my patients on 19, I went to go with him since Amy P was putting orders in. He told me not to go with him. I told him this was not acceptable and was there something that needed to be discussed. He told no (sic) & that I was to (sic) close to his space bubble & he was not going to discuss anything. I told him that I would just talk to Wendy or Cindy about it. He said fine. I called Wendy & discussed the situation & I also spoke with Cindy. They were both already aware of the situation b/c he had emailed them. Later in the shift when we were seeing some consults in the EC & he was able to call me out of a room, walk alone with me down the hall, and go see a patient without any difficulty. I then had to go get him out of a Level to go see this patient again and he was able to go see the patient with me alone without any problem again.

Information about the incident was forwarded to Papenfuss and Sferra, but no investigation was completed.

{¶ 21} The next week Cassavar met with surgeons that were part of appellant's practice group. The meeting had been requested by Dr. Dan Benson, Dr. Nate Cotterman, and Dr. Ryan Kidner, but Cassavar only remembered Benson and Kidner being present. Notably, Benson had previously interviewed for the trauma medical director position, and the record demonstrates that there was a feeling amongst some of the midlevels that he was the best candidate for the position. At the meeting, Benson and Kidner expressed their concerns that because of appellant they were going to lose their medical assistants and two of the physicians in their group. Benson and Kidner were worried that the entire trauma service was going to implode under appellant's leadership.

{¶ 22} In particular, Benson and Kidner relayed that students and residents were not treated well and did not like being on the trauma service because they felt that appellant was using them as scribes to take notes and was not teaching them. Cassavar later spoke with one of the residents who stated that appellant was not a very good surgeon and it was well known amongst the residents to not scrub in with appellant in order to avoid being part of a lawsuit. Benson and Kidner further described that appellant was banned from teaching medical students and residents, and that their practice group lost a residency position to Sferra's group because appellant was pulling the residents out of general surgery, where they should have been, to do trauma surgery so that they could act as appellant's scribes. Cassavar recalled that it was his understanding that the residents were having such a bad rotation with appellant's group that they persistently complained until Sferra agreed to switch their rotation to his group.

{¶ 23} Cassavar's notes from the meeting also reveal that Benson and Kidner indicated that the midlevels were not treated well by appellant and Sferra, and that appellant in particular abused, demeaned, and bullied the midlevels, and required them to act as scribes. After the meeting, Cassavar confirmed with Edwards-Tuttle that the midlevels were unhappy in their role and were leaving, and that Edwards-Tuttle was having a difficult time getting more midlevels to the trauma service. Benson and Kidner also mentioned that appellant would not walk alone with a female midlevel, which reaffirmed Cassavar's belief that appellant was "just a bit quirky."

{¶ 24} In addition, Benson and Kidner raised concerns regarding appellant's performance during morbidity and mortality conferences and peer review. They claimed that appellant had an agenda against certain surgeons, that he pitted surgeons against one another, and that he had lost the real purpose of morbidity and mortality conferences. Benson and Kidner also complained about appellant's conduct in sending a patient chart to an outside party for review within days of the patient's death.

{¶ 25} Cassavar testified that he believes that after the meeting he spoke with Johnston about what he had learned. Within the next two days, Cassavar then spoke with Sferra and Arturo Polizzi to let them know that he was not going to renew appellant's contract.

{¶ 26} On February 25, 2016, Cassavar met with appellant and informed him that they were not going to renew his contract, which expired on March 31, 2016. Cassavar testified that appellant conveyed that he understood that it was difficult for Cassavar to make that decision. Appellant, on the other hand, described that he was stunned, and he assigned the cause to "that Nurse Practitioner thing." Appellant testified that Cassavar responded, "these things happen all the time." In contrast, Cassavar testified that he replied, "[N]o. This is bigger than that. That's not the issue." Cassavar further explained that he knew that there had been an inappropriate situation involving appellant that occurred at a holiday party, but that was the extent of his knowledge. Cassavar testified that he was not aware that appellant had made a subsequent complaint that the same midlevel, S.P., was standing too close to him, that he was uncomfortable, and that he did not want to round alone with S.P.

{¶ 27} On May 20, 2016, following the non-renewal of his contract, appellant initiated the present action when he filed his complaint alleging retaliation for engaging in the protected activity of reporting sexual harassment, in violation of R.C. 4112.02(I). The parties conducted extensive discovery, after which appellees moved for summary judgment. Appellees argued that appellant failed to establish a prima facie case of retaliation because he could not demonstrate that Cassavar was aware that appellant engaged in protected conduct. Appellees also argued that appellant failed to demonstrate a causal connection between the alleged protected activity and any adverse action. Specifically, they argued that Cassavar made his decision after meeting with Benson and Kidner, and learning that both physicians and midlevels were planning to leave the trauma service because of appellant. Finally, appellees argued that even if appellant was able to establish a prima facie case of retaliation, appellees presented a legitimate non-retaliatory business reason for not renewing appellant's contract based on his performance, and that reason was not pretextual. On September 25, 2017, the trial court granted appellees' motion for summary judgment.

II. Assignments of Error

{¶ 28} Appellant has timely appealed the trial court's judgment, and now asserts two assignments of error for our review:

I. The Trial Court committed prejudicial and reversible error when it applied the wrong legal standard in evaluating Ferguson's claim of unlawful retaliation under O.R.C. § 4112.02(I) in granting Appellees' Motion for Summary Judgment.
II. The Trial Court committed prejudicial and reversible error when it granted Appellees' Motion for Summary Judgment on Ferguson's retaliation claim as there are genuine issues of material fact as to whether Appellees' proffered reason for Ferguson's termination was merely pretext for retaliation.

III. Analysis

{¶ 29} Because both of appellant's assignments of error challenge the award of summary judgment, we will address them together. We review the grant or denial of a motion for summary judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. , 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989) ; Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. , 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

{¶ 30} Appellant has filed his retaliation claim under R.C. 4112.02(I), which provides,

It shall be an unlawful discriminatory practice: * * * (I) For any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.

{¶ 31} To establish a prima facie case of retaliation, a claimant must prove that "(1) [he] engaged in a protected activity, (2) the defending party was aware that the claimant had engaged in that activity, (3) the defending party took an adverse employment action against the employee, and (4) there is a causal connection between the protected activity and adverse action." Greer-Burger v. Temesi , 116 Ohio St.3d 324, 2007-Ohio-6442, 879 N.E.2d 174, ¶ 13. "If a complainant establishes a prima facie case, the burden then shifts to the employer to 'articulate some legitimate, nondiscriminatory reason' for its actions." Id. at ¶ 14, quoting McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "If the employer satisfies this burden, the burden shifts back to the complainant to demonstrate 'that the proffered reason was not the true reason for the employment decision.' " Id. , quoting Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

{¶ 32} Here, appellees concede for purposes of summary judgment that an adverse employment action was taken against appellant. Appellees also concede for purposes of summary judgment that appellant's December 2015 complaints were protected activity. Thus, the issues left to be resolved are whether appellant's February 14, 2016 email to Cynthia Edwards-Tuttle and Wendy Jolliff constituted a protected activity, whether Cassavar was aware of appellant's December 2015 and February 14, 2016 complaints, and whether a causal connection exists between the complaints and the non-renewal of appellant's contract.

A. Protected Activity

{¶ 33} In its decision granting summary judgment, the trial court found that appellees conceded that appellant engaged in protected activity. Nevertheless, the trial court held that there could not be a causal connection between appellant's reporting and the adverse employment action because S.P.'s February 2016 conduct did not rise to the level of sexual harassment. In his first assignment of error, appellant argues that the trial court applied the wrong standard. Appellant argues that, contrary to the trial court's reasoning, he need not prove that S.P.'s conduct constituted sexual harassment. Instead, he must prove only that he had a good faith belief that it was sexual harassment for his complaint to be a protected activity. This view is supported by Booker v. Brown & Williamson Tobacco Co., Inc. , 879 F.2d 1304, 1312-13 (6th Cir.1989), in which the Sixth Circuit recognized that "[a] person opposing an apparently discriminatory practice does not bear the entire risk that it is in fact lawful; he or she must only have a good faith belief that the practice is unlawful." See also Braun v. Ultimate Jetcharters, LLC , 828 F.3d 501, 512 (6th Cir.2016) (applying the good-faith principle to a factual scenario where the plaintiff had reported allegations of gender discrimination and harassment to her superior).

{¶ 34} However, not only must appellant have a good faith belief that S.P.'s conduct constituted sexual harassment, his response in light of that belief must also be sufficiently clear to convey that he is reporting harassment or discrimination. See Braun at 511 ("[A] vague charge of discrimination * * * is insufficient to constitute opposition to an unlawful employment practice."). But it is not required that the complaint "be lodged with absolute formality, clarity, or precision." Id. It is on this point that appellees argue that appellant's February 14, 2016 email was not protected activity. Appellees note that in the email, appellant neither alleges nor complains of sexual harassment. Further, appellant does not report S.P.'s conduct to Alexander or Papenfuss in Human Resources, but instead contacts S.P.'s supervisors Edwards-Tuttle and Jolliff. Finally, appellant does not request any response or action, but rather sent the email as "an FYI."

{¶ 35} We are not persuaded by appellees' position. In appellant's email, he complains that S.P. was standing too close to him, and that she wanted to see patients alone with him. He also states that he is uncomfortable around S.P., and that his uncomfortableness is related to her past behavior. When viewed in a light most favorable to appellant, we find that the mention of the close physical proximity, put into the context of S.P.'s past behavior, which appellant previously reported as sexual harassment, supports appellant's argument that his February 14, 2016 email was again reporting what he believed to be sexual harassment. Weighing against that conclusion is the fact that appellant did not report the incident to Human Resources, despite having previously gone through an investigation, and the fact that he only mentioned S.P.'s conduct as "an FYI." Nevertheless, in our view, the fact that appellant did report S.P.'s conduct to her superiors at least creates a genuine issue of material fact as to whether his February 14, 2016 email constituted a sexual harassment complaint. Therefore, we hold that summary judgment is not warranted on the basis that appellant failed to demonstrate a protected activity.

B. Cassavar's Knowledge of the Protected Activity

{¶ 36} Under the second prong of the analysis, appellant argues that a genuine issue of material fact exists regarding whether Cassavar knew of the protected activity. In particular, appellant contends there is a genuine issue whether Cassavar's claim that he had no knowledge of appellant's complaints is truthful. Appellant highlights Cassavar's testimony that as President of ProMedica Central Physicians, he would like to be informed of anything related to the physicians who worked under him. Further, Cassavar spoke with Sferra around the time he made the decision not to renew appellant's contract, and appellant had complained to Sferra about S.P.'s conduct numerous times. Sferra testified that during that conversation, Cassavar mentioned that he had heard about "a lot of problems with [appellant]." Cassavar also spoke with Edwards-Tuttle frequently during that time, and Edwards-Tuttle was one of the recipients of the February 14, 2016 email. Thus, appellant infers that Sferra and Edwards-Tuttle must have notified Cassavar about appellant's complaints against S.P.

{¶ 37} In addition, Cassavar testified that he was aware of "an inappropriate situation that occurred at some holiday party over the recent past that was an issue." Cassavar's notes from his meeting with Benson and Kidner also reveal that he was informed that appellant would not walk alone with a female midlevel. Finally, during the meeting where Cassavar told appellant that his contract was not being renewed, appellant asked, "[I]t's that Nurse Practitioner thing, isn't it?" to which Cassavar replied, "this happens all the time," and/or "No, this is bigger than that." Appellant suggests that Cassavar's response demonstrates that he was aware of the sexual harassment complaints.

{¶ 38} Appellees, on the other hand, assert that Cassavar was unaware of appellant's protected activity. In addition to Cassavar's testimony that he was unaware, appellees note that appellant's December 2015 complaint occurred before Cassavar overtook responsibility for the trauma surgeons. Further, because S.P. was a Toledo Hospital employee, that complaint was handled by The Toledo Hospital Human Resources Department, and as such it was not unusual that the investigation would not be reported to ProMedica Central Physicians. Consistent with that, Johnston testified that she was not aware of appellant's harassment complaint until he filed the present lawsuit. Likewise, appellees also argue that Edwards-Tuttle was not aware of the December 2015 sexual harassment complaint, but rather simply knew that S.P. had been disciplined in connection with something that happened at a Christmas party.

{¶ 39} Appellees also argue that Cassavar's notes from his meeting with Benson and Kidner do not show that he was aware of appellant's protected activity. Instead, the notes demonstrate only that Cassavar knew that appellant was refusing to do rounds or walk alone with a female midlevel. There is no indication from the notes that Benson and Kidner relayed the fact that appellant had made sexual harassment complaints.

{¶ 40} Finally, appellees contend that Cassavar's statement in response to appellant questioning whether it was "that Nurse Practitioner thing" relate only to Cassavar's general knowledge that something inappropriate had happened at a Christmas party, and not to any knowledge of appellant's protected activity.

{¶ 41} When viewing the evidence in a light most favorable to appellant, we find that a genuine issue of material fact exists regarding whether Cassavar was aware of both appellant's December 2015 and February 14, 2016 protected activity.

{¶ 42} Regarding Cassavar's knowledge of the December 2015 sexual harassment complaint, we find it reasonable to conclude that an instance of a doctor making a sexual harassment complaint against a female midlevel would come to the attention of the doctor's supervisors, which at the time were Sferra and Johnston. Indeed, Sferra was well aware of the allegations, having received them from appellant, and having been involved in the meeting where Alexander communicated the results of the investigation. We further find that a reasonable person could conclude that Johnston shared that information with Cassavar given their close working relationship as Co-Presidents of ProMedica Central Physicians, and the fact that Cassavar admitted to at least being generally aware of an incident at a Christmas party.

{¶ 43} Regarding the February 14, 2016 email, we find that Cassavar's knowledge from his meeting with Benson and Kidner that appellant was refusing to round or walk with a female midlevel, combined with his contemporaneous conversations with Edwards-Tuttle, who received appellant's email, could lead a reasonable person to conclude that Cassavar was aware of the email, and consequently was aware of appellant's uncomfortableness with S.P.'s conduct.

{¶ 44} Therefore, we hold that a genuine issue of material fact exists regarding whether Cassavar had knowledge of appellant's protected activity, and summary judgment based on Cassavar's lack of knowledge is not appropriate.

C. Causal Connection

{¶ 45} Finally, appellant argues that a genuine issue of material fact exists regarding whether there was a causal connection between the protected activity and the non-renewal of his contract. "In retaliation cases [under R.C. 4112.02(I) ], the plaintiff must show that the retaliatory animus was the but-for cause of the adverse employment action. Thus, to prevail in a retaliation case, the plaintiff has the burden of establishing that the retaliatory animus was a determinative, not merely motivating, factor." Smith v. Ohio Dept. of Pub. Safety , 2013-Ohio-4210, 997 N.E.2d 597, ¶ 61 (10th Dist.), citing Univ. of Tex. Southwestern Med. Ctr. v. Nassar , 570 U.S. 338, 360, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). Here, we find that appellant has not demonstrated a genuine issue of material fact that appellees' proffered reason for the non-renewal of his contract was mere pretext.

{¶ 46} To establish his prima facie case of retaliation, appellant relied on several factors: first, the temporal proximity between his latest complaint against S.P. and the decision not to renew his contract; second, the fact that Sferra and another surgeon did not suffer any adverse employment action despite Benson and Kidner also complaining of their conduct to Cassavar; and third, the lack of any difference in circumstances other than his complaints regarding S.P. between the time he was elevated to the permanent trauma medical director and the time his employment contract was not renewed.

{¶ 47} In response, appellees offered that appellant's contract was not renewed because of his inability to be an effective leader of the trauma program. Appellant was then required to demonstrate that appellees' proffered reason was mere pretext. "A plaintiff may establish pretext by showing by a preponderance of the evidence '(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to motivate discharge.' " Hollingsworth v. Time Warner Cable , 157 Ohio App.3d 539, 2004-Ohio-3130, 812 N.E.2d 976, ¶ 23 (1st Dist.), quoting Manzer v. Diamond Shamrock Chems. Co. , 29 F.3d 1078, 1084 (6th Cir.1994). Appellant addresses all three avenues for demonstrating pretext.

{¶ 48} First, appellant argues that a genuine issue of material fact exists regarding whether the proffered reason was based in fact. "[This] first type of showing is easily recognizable and consists of evidence that the proffered bases for the plaintiff's discharge never happened, i.e., that they are 'factually false.' " Manzer at 1084. Appellant asserts that appellees have vaguely claimed that he was causing disruption in the trauma team, and that it was going to lose multiple midlevels as a result of his behavior, but he states that appellees have failed to identify anyone who left because of him. Further, appellant argues that had appellees actually had concerns about his behaviors, they would not have promoted him to the permanent trauma medical director position. However, the record is clear that Cassavar was informed by Benson and Kidner that the trauma team was imploding, and Cassavar subsequently confirmed with Edwards-Tuttle that the midlevels were unhappy in their role and were leaving, and that she was having a difficult time bringing new midlevels onto the trauma service. In fact, the record is replete with testimony demonstrating that the midlevels were upset with appellant's behavior and leadership. Cassavar was also informed that the residents and students were being used as scribes and were not happy with their rotation.

{¶ 49} Appellant responds that these allegations are inadmissible hearsay statements, and thus should not be relied upon to demonstrate that he had leadership issues. Appellant's hearsay argument is misplaced. The pertinent fact is not whether the allegations about his behavior and leadership are true, but whether the allegations were made. Here, the record contains no evidence demonstrating that the allegations did not in fact exist. The existence of the allegations is important for two reasons. First, regardless of the truth of the allegations, we believe that the fact that continuous and consistent complaints against appellant have been made by a multitude of the midlevels on his team, as well as other surgeons in his group, demonstrates that appellant is not successfully leading the trauma team. Second, the pervasiveness of the complaints and Cassavar's confirmation with Edwards-Tuttle of the midlevels' issues support that Cassavar had an honest belief that appellant was not an effective leader of the trauma team. See Seeger v. Cincinnati Bell Tel. Co. , 681 F.3d 274, 285-286 (6th Cir.2012) ("As long as the employer held an honest belief in its proffered reason, 'the employee cannot establish pretext even if the employer's reason is ultimately found to be mistaken, foolish, trivial, or baseless.' "). Thus, we conclude that no genuine issue of material fact exists regarding whether the proffered legitimate reason for the non-renewal of appellant's contract was based in fact.

{¶ 50} Second, appellant argues that the proffered reason did not actually motivate his discharge. In this second showing, "the plaintiff attempts to indict the credibility of his employer's explanation by showing circumstances which tend to prove that an illegal motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it 'more likely than not' that the employer's explanation is a pretext, or coverup." (Emphasis sic.) Manzer , 29 F.3d at 1084.

{¶ 51} Appellant asserts that for the one year that he was the assistant trauma medical director and the two years that he was the interim trauma medical director his alleged leadership and communication "issues" were not a concern to appellees, as evidenced by the fact that he was ultimately made the permanent trauma medical director. Appellant states that it was not until he made the complaints about S.P. that his performance and communication issues became a concern. However, the record demonstrates otherwise. Appellant was named the interim trauma medical director while appellees embarked on a two-year search to find a permanent replacement following his predecessor's retirement. During this time, numerous midlevels complained about appellant. After two years of searching, including interviewing and passing on appellant, appellees could not find a suitable candidate. Sferra testified that faced with the need to have a permanent trauma medical director to retain their Level 1 trauma hospital status, appellees then removed appellant's interim label, despite ongoing concerns about his leadership and ability to perform the job, and despite the knowledge that many of the midlevels and some of the physicians would be upset. Thus, contrary to appellant's argument, the record demonstrates that appellees were aware of and concerned about appellant's leadership and communication issues before appellant made the complaints against S.P..

{¶ 52} Appellant next claims that Cassavar's statement that "I know this is going to hurt the program, hurt the trauma program," which he made when he informed appellant that his contract would not be renewed, is evidence that appellant's alleged leadership issues did not motivate the adverse employment action because what was actually important to appellees at the time was appellant's work towards The Toledo Hospital's accreditation as a Level 1 trauma center. We disagree. Cassavar's statement merely recognizes that not renewing appellant's contract would have a negative impact on the hospital's accreditation efforts. It does not provide any evidence concerning the motivation behind the adverse employment decision, in particular, that the decision not to renew appellant's contract was motivated by appellant's sexual harassment complaint as opposed to his failure to successfully lead the trauma service team.

{¶ 53} Appellant last argues that Cassavar did not take the leadership issues identified by Benson and Kidner seriously, until he needed to fabricate a reason to end appellant's employment. Appellant states that Cassavar did not investigate Benson and Kidner's claims that appellant created an unsafe work environment, or that he "hurts patients." However, while Cassavar did not investigate Benson and Kidner's claims-except by following up with Edwards-Tuttle and one of the residents-he did take the claims seriously, as demonstrated by his decision within the following days to not renew appellant's employment contract.

{¶ 54} Therefore, we find that appellant has not provided any evidence showing that the decision not to renew his contract was more likely motivated by retaliation for his filing a sexual harassment complaint than by legitimate concerns over his leadership of the trauma team.

{¶ 55} Third, and finally, appellant argues that the proffered reason was insufficient to motivate the adverse employment action. This third showing "consists of evidence that other employees, particularly employees not in the protected class, were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff." Manzer , 29 F.3d at 1084.

{¶ 56} In support of his argument, appellant notes that during their meeting with Cassavar, Benson and Kidner also raised complaints about Sferra and another doctor in appellant's group. The record shows that Benson and Kidner reported disruptive or abusive behavior by both appellant and Sferra, indicating that appellant and Sferra displayed anger issues and engaged in tantrums. The record also shows that Benson and Kidner complained that their group had lost a number of medical assistants, and attributed those losses to appellant and the other doctor. Appellant reports that neither Sferra nor the other doctor were disciplined based on Benson and Kidner's complaints.

{¶ 57} However, we find that appellant has not demonstrated that Sferra and the other doctor have engaged in substantially identical conduct. The other doctor was alleged to have exhibited bad behavior towards the medical assistants in appellant's practice group. This conduct is separate and distinct from appellant's role as leader of the trauma team, in which he was accused of abusive, bullying, and demeaning behavior that generated a multitude of complaints and threats to leave from the midlevel providers on the team. In the same way, while Sferra was accused of disruptive and abusive behavior, the allegations were not as pervasive or detailed as those against appellant, which also included allegations that appellant treated the midlevels and residents as scribes, refused to be alone with female midlevels, lost the purpose of morbidity and mortality conferences, and sent a patient's chart to a third party within days of the patient's death. Furthermore, it was appellant, not Sferra or the other doctor, who was the trauma medical director, and it was his trauma team that was in danger of imploding under his leadership. Thus, we conclude that appellant has not demonstrated that the proffered reason of poor leadership and communication was insufficient to motivate appellees' decision not to renew his contract.

{¶ 58} Therefore, having found that appellant has failed to demonstrate a genuine issue of material fact showing that appellees' proffered reason was mere pretext, we hold that appellant has not satisfied the causal connection element of his claim for retaliation, and summary judgment in favor of appellees is warranted.

{¶ 59} Accordingly, appellant's first and second assignments of error are not well-taken.

IV. Conclusion

{¶ 60} For the foregoing reasons, we find that substantial justice has been done the party complaining, and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Arlene Singer, J.

James D. Jensen, J.

CONCUR.

      Cassavar was certain that Benson was there, and believed the other person was Kidner, not Cotterman.

      A scribe is a low-level position that is responsible for following a doctor and taking notes. Cassavar testified that he could employ a scribe at one-third the cost of employing an advanced practice provider.

      Appellant testified that he has never been the subject of a medical malpractice suit.

      In his complaint, appellant also asserted claims of sexual harassment creating a hostile work environment, gender discrimination, aiding and abetting the perpetuation of gender discrimination and retaliation, and negligent hiring, retention, and supervision. The trial court granted summary judgment in favor of appellees on these claims, and appellant has not raised any assignments of error relative to them. Therefore, they are not a subject of this appeal and will not be discussed.