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GUMM v. FLICKENGER

September 29, 2004.

JAMES GUMM, Individually and in his Capacity as the Milton Township Assessor Plaintiff,
v.
JAMES FLICKENGER, BARBARA MURPHY, O. CHRISTOPHER HEIDORN, Individually and in Their Capacities as Milton Township Trustees, RON SMITH, CAROL SCHOLL, AND JAMES PHILLIPS Defendants.



The opinion of the court was delivered by: DAVID COAR, District Judge

MEMORANDUM OPINION AND ORDER

Before this Court are is a motion to dismiss the complaint of James Gumm ("Gumm" or "Plaintiff"), filed by Carol Scholl ("Scholl" or "Defendant"). Scholl seeks to dismiss Counts IV, V, VII, VIII, and IX of Gumm's complaint. In the alternative, she requests that this Court dismiss Gumm's requests for punitive relief on those counts.*fn1 For reasons stated below, Scholl's motion to dismiss is GRANTED IN PART and DENIED IN PART.

This Court will not dismiss Count IV and V or Gumm's request for punitive relief on those counts. This Court will dismiss Counts VII, VIII, and IX with respect to Scholl; consequently, Scholl's request to deny punitive damages on those counts MOOT. Factual and Procedural Background*fn2

  Plaintiff James Gumm first began working in the Milton Township Assessor's office in 1988. ¶ 8. He started as a deputy assessor and was later elected to the post of Assessor. ¶ 8. He began his four-year term in 1998, was re-elected, and began his second four-year term in 2002. ¶¶ 8-9.

  As Assessor, Gumm updated the information technology in the Assessor's Office. ¶¶ 10-11. Since early 2002, the total number of employees necessary for the day-to-day operations of the Assessor's office has decreased by half, from 20 employees to 10 employees. ¶ 13.

  When Gumm took office, there was a substantial disparity in residential and commercial assessments. ¶ 14. A number of commercial properties had either been under-assessed or not assessed at all. ¶ 14. Gumm was particularly concerned about the exemptions and underappraisals that benefitted elected officials. ¶ 20.

  During his tenure, Gumm updated commercial assessments. ¶ 17. He denied Milton Township Board member James Flickinger four of the five assessment exemptions that Flickenger had been previously given. ¶ 19. He also denied exemptions to a number of individuals associated with Flickenger and increased the assessments of others associated with Flickenger as much as five times what they had paid in the past. ¶ 22.

  Gumm's moves met with considerable resistance from a number of people, including local and civic political leaders who objected to the assessment corrections. ¶ 16. Gumm was repeatedly warned by elected officials and political leaders that his reelection would be opposed and efforts would be made to destroy him politically. ¶ 16. Flickenger, for example, participated in closed sessions of public bodies, met with members of Gumm's church to discuss the most intimate details of Gumm's life, encouraged disturbances among Gumm's employees, publicly maligned Gumm, and campaigned and voted to deny Gumm the necessary resources to do his job. ¶ 23.

  Ron Smith, a former Milton Township Assessor who was employed by Milton Township in another capacity during the events in question, vocalized a strong interest in seeing Gumm removed from office. ¶ 24. Smith pursued Gumm's removal by meeting with employees from the Assessor's office and encouraging them to pursue claims for disparate treatment of one kind or another. ¶ 28. In 2000, he met repeatedly with employee Carol Scholl. ¶ 29. After Gumm took office, Smith and Scholl met several times to discuss the viability of a lawsuit against Gumm that would serve to tarnish his reputation and credibility such that he would be forced to leave office. ¶ 32. Smith had previously assisted Scholl in pursuing claims for sexual harassment against another individual. ¶ 30.

  In or about August 2000, Scholl came to work wearing a t-shirt that pictured tomatoes and stated "firm." ¶ 156. She later complained that Gumm touched her shirt and said the word "firm." ¶ 157. Later that day, she met with a local police officer. ¶ 158. She told the officer that she had had a tape recorder in her pocket during a meeting with Gumm and that she wanted to use the recording. ¶ 158. The officer told her it was illegal. ¶ 158. When Gumm later demanded a copy of the tape, she said it she had recorded over it. ¶ 160. When Scholl was asked for a copy of the tape that had been "taped over" she claimed that it had been destroyed. ¶ 161.

  In late 2000, Scholl and seven other employees in the Assessor's office prepared a claim against Gumm and another Assessor's Office employee, Larry Gage. ¶ 37. In February 2001, Scholl filed a claim with the EEOC alleging, among other things, that she had "felt pressured for dates with Gumm." ¶ 33. Scholl researched the law on sexual harassment, came to work wearing provocative clothing and a hidden microphone with the intent that he would be provoked into saying or doing something that would support a claim for sexual harassment; and met with other employees in the office to convince them that they were underpaid or under-utilized on account of their gender. ¶ 35. Scholl's personal files indicate that she and Gumm were "developing a friendship." ¶ 34.

  The complaint was lodged shortly after a meeting in which Township Board member Barbara Murphy advised the complainants on how to craft their complaint so it would be covered by the Township's insurance policy. ¶ 38. The employees alleged that the Assessor's Office constituted a hostile work environment and Scholl alleged that Gumm was pursuing her for dates. ¶ 39. The claims were asserted against the Assessor's Office and the Milton Township Board. ¶ 40.

  The Board's retained attorney, Richard Russo, interviewed both the claimants and a number of individuals they identified as witnesses. ¶ 41. Russo accumulated over two dozen audio cassettes of testimony and a box of documentation regarding claims against Gumm. ¶ 42. The tapes revealed that many, if not all of the claims against Gumm, were completely lacking in merit or credibility. ¶ 44. Gumm was not told that many of the claimants had already acknowledged during their taped interviews with Russo that the claims filed with the EEOC were lacking in merit. ¶ 54. Scholl said during her interview that other than one instance, there had been no inappropriate touching. ¶ 46. Another witness was among many who testified that she thought the allegations had been fabricated to get Gumm out of office. ¶ 47. Gumm was not given access to the tapes during the investigation or its subsequent resolution. ¶ 43. He lodged complaints with the Township Supervisor and the Township Human Rights Consultant regarding the Board's handling of the investigation. ¶ 49. Freedom of information requests were made on his behalf. ¶ 49. He had asked that the counsel retained to represent him provide him with the documents. ¶ 49.*fn3

  Before the mediation, Gumm had repeatedly advised his counsel and the other defendants that he believed the evidence would exonerate him and that he therefore had no interest in considering the kinds of settlements that were likely to be discussed at the mediation. ¶ 52. Gumm vehemently denied any liability and repeatedly asked that the Board and ...


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