Opinion
Case No. C-3-96-122.
September 21, 1999.
Felix J. Gora, Richard T. Iauer, Attorney for Plaintiff.
Michael L. Cargill, Dennis A. Becker, Barry David Jacobson Levy, Attorney for Defendant.
In this litigation, the Plaintiff alleged, inter alia, that she had been sexually harassed by Defendant Robert Sheridan ("Sheridan"). The Plaintiff sought to recover damages for that alleged harassment from the City of Dayton. The Plaintiff based her hostile work environment, sexual harassment claims (Counts III, IV and V of her Complaint) upon a number of incidents that had occurred over the period of a number of months. A jury trial was conducted between June 22, 1998, and July 6, 1998, with this Court submitting the case to the jury on interrogatories. Interrogatories 1, 2 and 3, each with subparts, dealt with Plaintiff's claims of assault (Interrogatory 1) and battery (Interrogatories 2 and 3). These claims, in addition to being separate and distinct allegations, had formed the entirety of Plaintiff's sexual harassment claims, insofar as specific actions of verbal or physical conduct were concerned. The jury answered the first Interrogatory of each series in the negative, thus expressing its opinion that none of these incidents had occurred. Plaintiff's sexual harassment claims were submitted with Interrogatories 4-7, each with subparts. Of particular importance to Plaintiff's sexual harassment claims, Interrogatory 4A asked the jury whether the Plaintiff had proven, by the preponderance or greater weight of the evidence, "that she was subjected to verbal or physical conduct by Defendant Sheridan."See Doc. #83. The jury answered "No" to that interrogatory. By so answering, the jury found that none of the incidents, upon which the Plaintiff had based her sexual harassment claims, had occurred. In accordance with the instructions at the bottom of that interrogatory, the jury did not answer any additional questions concerning Plaintiff's claims of sexual harassment. Based upon the jury's answers to that and other applicable interrogatories, judgment was entered in favor of the Defendants.Id.
The Plaintiff brought those claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; Chapter 4112 of the Ohio Revised Code; and the common law of Ohio.
Without those specific actions, the record would have lacked sufficient evidence of hostile workplace, sexual harassment to justify presentation of those claims to the jury.
Thereafter, Plaintiff filed a timely Motion for a New Trial (Doc. #87), pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, arguing that the jury's negative answer to Interrogatory 4A was against the manifest weight of the evidence, because it was uncontroverted that one of the incidents, upon which she had based her claims, did in fact occur. In support of that contention, Plaintiff pointed to Sheridan's testimony, in which he conceded that he had kissed Plaintiff on the cheek, upon her return from sick leave ("kiss on the cheek incident"). In its Decision of January 5, 1999, this Court agreed with Plaintiff that Sheridan had subjected Plaintiff to physical conduct, with respect to the kiss on the cheek incident, and that, therefore, the jury's finding (implicit in its answer to Interrogatory 4A) that the kiss on the cheek incident had not occurred was against the manifest weight of the evidence. See Doc. #91. Accordingly, the Court concluded that the Plaintiff was entitled to a new trial on her claims of sexual harassment, to the extent those claims arose out of that single incident. Id. Turning to the question of the scope of the new trial to which Plaintiff was entitled, the Court held that she would be limited to proving that the kiss on the cheek incident constituted sexual harassment. In order to determine if a trial on that sole issue was warranted, the Court directed the Defendants to address that issue through a motion for summary judgment.
This case is now before the Court on the Plaintiff's Motion for Partial Reconsideration (Doc. #93). With that motion, the Plaintiff requests that the Court reconsider the portion of its Decision of January 5, 1999 (Doc. #91), which limited the retrial of her sexual harassment claims to the kiss on the cheek incident, and, further, that the Court grant her a new trial encompassing all alleged incidents of sexual harassment upon which she had based her claims. In addition, the Defendants have filed motions, requesting summary judgment on the issue of whether the kiss on the cheek incident constituted sexual harassment. See Docs. #97 (Dayton) and #100 (Sheridan). As a means of analysis, the Court will initially rule upon the Plaintiff's motion seeking partial reconsideration. If the Court overrules that motion, it will rule upon the Defendants' motions seeking summary judgment. I. Plaintiff's Motion for Partial Reconsideration (Doc. #93)
Should the Court sustain the Plaintiff's motion seeking partial reconsideration (the result of which will be that the Plaintiff will be permitted to a new trial on the entirety of her claims of sexual harassment), the Defendants' Motions for Summary Judgment will be moot, since those motions focus upon the narrow question of whether the kiss on the cheek incident constituted such harassment.
In her motion requesting a new trial, pursuant to Rule 59 of the Federal Rules of Civil Procedure, by arguing that the jury's answer to Interrogatory 4A was against the manifest weight of the evidence, the Plaintiff focused exclusively upon the kiss on the check incident. She did not argue that the jury's express conclusion, manifested in its negative response to Interrogatories 1A, 2A and 3A, that none of the other acts of alleged sexual harassment had occurred was, likewise, against the manifest weight of the evidence. As is indicated, this Court agreed with the Plaintiff and granted her a new trial, limited to that incident. The Plaintiff now complains that limiting a new trial to that single incident will be unfair to her, since such a limitation will deprive her of the opportunity of presenting the entirety of her claims to a jury. In addition, she argues that to limit her new trial in such a manner will violate her rights under the Seventh Amendment. Not surprisingly, Dayton and Sheridan have opposed the Plaintiff's Motion for Partial Reconsideration. For reasons which follow, this Court does not agree with the Plaintiff.
The Plaintiff contends that a limited new trial is inappropriate and unjust, because a number of the central issues raised by her sexual harassment claims have not been resolved by a jury. In particular, the Plaintiff points to the fact that, given the negative response to Interrogatory 4A and the instructions at the bottom of that Interrogatory, the jury did not decide a number of issues, including whether Sheridan engaged in his conduct because of her sex, whether that conduct created an objectively hostile work environment and whether the Plaintiff was constructively discharged as a result. According to the Plaintiff, the jury's fatal error, with regard to Interrogatory 4A, prevented it from making factual findings on those and other issues necessary to the resolution of her claims of sexual harassment. While the Court agrees with Plaintiff that the jury's error in answering Interrogatory 4A prevented it from resolving the other issues raised by her sexual harassment claims, she loses sight of the nature of that error. The Plaintiff based those claims on Sheridan's alleged conduct over a number of months. By posing Interrogatory 4A (which asked the jury whether Sheridan had subjected the Plaintiff to verbal or physical conduct), the Court was inquiring whether any verbal or physical conduct had occurred. As indicated, the jury, in its answers to Interrogatories 1A, 2A and 3A, found that none of that alleged conduct had taken place. With the exception of the kiss on the cheek incident, the jury's finding that Sheridan did not engage in the alleged conduct of sexual harassment was supported by the overwhelming weight of the evidence. Moreover, the jury's findings concerning the other alleged conduct offered in support of Plaintiff's claims of sexual harassment are in no way related to or dependent upon the jury's finding on the kiss on the cheek incident. Thus, the error was not that the jury failed to find that the vast majority of the serious allegations of Sheridan's conduct, upon which Plaintiff had based her claims of sexual harassment, had occurred. Indeed, Plaintiff does not argue that the jury's finding in this regard is against the manifest weight of the evidence. Rather, the jury misfired when it found that the kiss on the cheek incident had not occurred. The cure for that error is not to afford the Plaintiff a second opportunity to convince a jury that the other alleged incidents took place. Affording the Plaintiff a new trial upon claims which the jury has found against her, findings which are clearly not against the manifest weight of the evidence, would be clear error. If her claims based upon the kiss on the cheek incident survive the pending motions for summary judgment, a new trial limited to that incident will afford Plaintiff the opportunity of proving all issues raised by this specific allegation of Plaintiff's hostile work environment, sexual harassment claims, including, inter alia, that said incident was based upon her sex, that it created a hostile work environment and that it constituted a constructive discharge. The limited new trial will put Plaintiff in the same position that she would have been, had the jury correctly found that the kiss on the cheek incident had occurred. Had the jury correctly found that this single incident had taken place, it would then have been required to consider the other Interrogatories in sequential order, deciding, for instance, whether Sheridan kissed her on the cheek because of her sex, whether that incident created a hostile work environment and whether the Plaintiff was constructively discharged as a result. The jury would not, however, have considered any of the other alleged conduct, when it resolved those other issues, since, by answering Interrogatories 1A, 2A and 3A in the negative, the jury found that no other conduct alleged had occurred. Similarly, the jury in Plaintiff's new trial will only consider the kiss on the cheek incident, when it determines whether she has established her hostile work environment, sexual harassment claims.
An example of those alleged incidents is the events which allegedly occurred during a break in the April 6, 1995, meeting of Northeast Priority Board, events which formed the basis of one of Plaintiff's claims of battery, as well as one of the allegations of her sexual harassment claims. According to Plaintiff, Sheridan grabbed her, pinned her arms to her side and stuck his tongue into her ear. Given that none of the individuals who were in a position to view those events corroborated Plaintiff's testimony, the jury quite permissibly rejected her testimony and, by answering Interrogatory 2A (which asked the jury whether Sheridan had battered her in the offices of the Northeast Priority Board during a break in the meeting of the Northeast Priority Board on April 6, 1995) in the negative, it found that those events had not occurred. Moreover, by answering Interrogatories 1A and 3A in the negative, the jury found Sheridan had not assaulted or battered Plaintiff on May 4 and 8, 1995. See Doc. #83. The jury's answer to Interrogatory 4A is, with the exception of the kiss on the cheek incident, entirely consistent with its answers to Interrogatories 1A, 2A and 3A.
In essence, the Plaintiff's request for reconsideration is based upon the premise that limiting her new trial to the kiss on the cheek incident will greatly diminish her chances of prevailing in this litigation. The Court agrees; however, that state of affairs flows from the fact that the jury, by answering Interrogatories 1A, 2A and 3A in the negative, found that no other alleged incidents had occurred.
With respect to the Plaintiff's argument under the Seventh Amendment, in Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494 (1931), the Supreme Court addressed the issue of whether a new trial could, consistent with the Seventh Amendment, be limited to discrete issues. Therein, the plaintiff sought to recover damages from the defendant for breach of contract. The defendant filed a counterclaim, alleging that it was entitled to recover damages from the plaintiff because it had breached another contract between the parties. Both the plaintiff's claim and the defendant's counterclaim were tried to a jury, which found that both parties were entitled to recover damages (i.e., the plaintiff on its claim and the defendant on its counterclaim). Upon appeal, the First Circuit concluded that the District Court had erroneously instructed the jury on the measure of damages that the defendant could recover on its counterclaim. In accordance with circuit precedent, the appellate court limited the retrial to the issue of damages. In other words, upon retrial, the defendant would not be required to establish that the plaintiff had breached the relevant contract. The plaintiff then appealed to the Supreme Court, arguing that limiting the new trial solely to damages would violate its rights under the Seventh Amendment. Under the circumstances of that case, the Supreme Court agreed, concluding that a retrial on both breach of contract and damages would be required, since the issues of whether the contracts had been breached and, if so, the amount of the damages the defendant was entitled to recover were interwoven. In support of that conclusion, the Supreme Court pointed out that it was impossible to ascertain from the record the date upon which the contract had been entered into and noted that said date would be essential in determining the defendant's damages. Id. at 499-500. In addition, there was a sharp conflict in testimony about the terms of the contract (i.e., what did it obligate the plaintiff to do).Id. at 500. Since the amount of damages could not be determined without knowing the extent of the plaintiff's obligations under the contract, the new trial could not be limited to damages. Id.
Herein, this Court has previously concluded that the kiss on the cheek incident was distinct and separable from the other alleged incidents, upon which Plaintiff based her claims of sexual harassment, rather than being interwoven with those other events. The Plaintiff has not convinced the Court that its conclusion in that regard was incorrect. It bears emphasis that it was the Plaintiff who first suggested that the kiss on the cheek incident was separate from Sheridan's alleged other conduct of sexual harassment, by arguing that the jury's answer to Interrogatory 4A was against the manifest weight of the evidence, given that Sheridan had kissed her on the cheek. Plaintiff did not focus on any other alleged acts of such harassment when making her "against the manifest weight of the evidence" argument. Moreover, the Plaintiff is in a position analogous to a party who bases her claim of sexual harassment on a number of incidents, only to have partial summary judgment entered against her on the basis that the evidence does not raise a genuine issue of material fact as to whether some of those incidents occurred. Trial would be held on only those incidents that survived the defendant's motion for summary judgment. Herein, the jury found that none of the other conduct alleged had occurred. The jury's finding, with the exception of the kiss on the cheek incident, is supported by the overwhelming weight of the evidence. Moreover, the jury's finding with regard to the other alleged conduct by Sheridan is in no way dependent upon or related to the kiss on the cheek incident. Just as the grant of partial summary judgment does not offend the Seventh Amendment (see e.g., United States v. Vallea, 1998 WL 939840 (9th Cir. 1998), citing Fidelity Deposit Co. v. United States, 187 U.S. 315, 319-321 (1902)), refusing to permit the Plaintiff to have a second opportunity to prove that Sheridan engaged in the alleged conduct other than the kiss on the cheek incident does not contravene her rights under that constitutional provision. Simply stated, the kiss on the cheek incident is not so interwoven (or interwoven at all) with the other allegations of sexual harassment that a new trial on all issues is mandated under the Seventh Amendment.
Accordingly, the Court overrules the Plaintiff's Motion for Partial Reconsideration (Doc. #93).
II. Motions for Summary Judgment of Defendants City of Dayton (Doc. #97) and Sheridan (Doc. #100)
As a means of analysis, the Court will initially set forth the standards which are applicable to all motions requesting summary judgment, following which it will turn to the arguments of the parties in support of and in opposition to the two such motions currently pending in this litigation.
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Of course, the moving party:
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.Id. at 323. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford Co., 886 F.2d 1472, 1478 (6th Cir. 1989).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are . . . `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), "[a] district court is not . . . obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). See also L.S. Heath Son, Inc. v. ATT Information Systems, Inc., 9 F.3d 561 (7th Cir. 1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment. . . ."). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
In Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998), the Supreme Court restated certain governing principles for a claim of hostile work environment, sexual harassment:
Under Title VII of the Civil Rights Act of 1964, "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). We have repeatedly made clear that although the statute mentions specific employment decisions with immediate consequences, the scope of the prohibition "`is not limited to "economic" or "tangible" discrimination,'" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. [57, 64 (1986)]), and that it covers more than "`terms' and `conditions' in the narrow contractual sense." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, ___, 118 S.Ct. 998, 1001 (1998). Thus, in Meritor we held that sexual harassment so "severe or pervasive" as to "`alter the conditions of [the victim's] employment and create an abusive working environment'" violates Title VII. 477 U.S., at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (C.A.11 1982)).Id. at 2282-83. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993), the Supreme Court stressed that the conduct must be sufficiently severe or pervasive so as to constitute both an objectively and subjectively hostile work environment. An objectively hostile work environment is one that "a reasonable person would find hostile." Id. at 20. In order to ascertain whether a employee's work environment is objectively hostile, the totality of the circumstances must be examined, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. at 23. The Supreme Court has also cautioned that "offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment." Faragher, 118 S.Ct. at 2283 (internal quotation marks omitted). The Sixth Circuit recently reiterated that these standards are to be applied in order to determine whether a plaintiff's hostile work environment, sexual harassment claim survives a motion for summary judgment. See Williams v. General Motors Corp., ___ F.3d ___, 1999 WL 587199 (6th Cir. 1999).
Ohio courts have relied upon decisions by federal courts interpreting Title VII, including Faragher and Harris, when ruling upon sexual harassment claims under the law of Ohio. See e.g.,Duvall v. Time Warner Entertainment Company, L.P., 1999 WL 420093 (Ohio App. 1999); Davis v. City of Columbus, 1999 WL 394862 (Ohio App. 1999); Malloy v. City of Cleveland, 1999 WL 127254 (Ohio App. 1999). See also, Fenton v. Hisan, Inc., 174 F.3d 827, 829 (6th Cir. 1999) (holding that employment discrimination claims under the statutory and common law of Ohio are to be resolved in accordance with the law developed by federal courts, interpreting federal employment discrimination statutes). Accordingly, this Court will combine its discussion of the Plaintiff's state law claims, with its discussion of her sexual harassment claim under Title VII.
Dayton argues that it is entitled to summary judgment because the kiss on the cheek incident was not sufficiently severe or pervasive as to cause Plaintiff's work environment to be objectively hostile. Sheridan incorporates the arguments of Dayton into his motion. The Plaintiff argues that a reasonable jury could find (and, thus, a genuine issue of material fact exists) that said incident was sufficiently severe or pervasive to cause her work environment to be objectively hostile. For reasons which follow, the Court agrees with Dayton and Sheridan.
The Plaintiff also argues that the Court should deny the motions for summary judgment filed by Dayton and Sheridan, since, with her Motion for Partial Reconsideration, she has requested that the Court grant her a new trial on all incidents upon which she initially based her claims of hostile work environment, sexual harassment. The Court agrees that, if Plaintiff were entitled to a new trial on all such incidents, the motions of Dayton and Sheridan would be without merit. See Footnote 2, supra. However, since the Court has overruled Plaintiff's Motion for Partial Reconsideration, it rejects the Plaintiff's argument in that regard.
In addition, the Plaintiff points to her trial testimony concerning the kiss on the cheek incident, to the effect that Sheridan's act made her feel invaded and sick. That testimony does not convince the Court that there is a genuine issue of material fact on the issue of whether Sheridan's action created anobjectively hostile work environment, although it is certainly probative on the issue of whether Plaintiff subjectively viewed her work environment to be hostile. Although a plaintiff must establish that the harassing conduct created both an objectively and a subjectively hostile work environment (Harris, Supra), Dayton and Sheridan have argued that they are entitled to summary judgment, because the evidence does not raise a genuine issue of material fact as to whether the kiss on the cheek incident created an objectively hostile work environment. Those Defendants have not raised the issue of whether that incident created asubjectively hostile work environment. Therefore, the fact that Plaintiff's testimony is probative of that latter issue is of no significance in ruling on the instant motions.
Dayton has cited a number of cases in which courts have held that the defendant was entitled to summary judgment on a hostile work environment, sexual harassment claim, which was predicated on only one or a few isolated incidents. For instance, Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2nd Cir. 1998), the Second Circuit affirmed the decision of the District Court to grant summary judgment in favor of the defendant and against plaintiff on such a claim. Therein, the plaintiff based her claim on the fact that, on one occasion, her male supervisor had said that she had the "sleekest ass" in the office and, on another occasion, had deliberately touched her breasts with some papers that he was holding in his hand. The Second Circuit concluded, as a matter of law, that this conduct was not sufficiently severe or pervasive to create an objectively hostile work environment. InSaxton v. American Tel. Tel. Co., 10 F.3d 526 (7th Cir. 1993), the Seventh Circuit affirmed the grant of summary judgment in favor of the defendant on the plaintiff's hostile work environment, sexual harassment claim, concluding that the plaintiff's supervisor's actions of rubbing his hand along her upper thigh on two occasions and attempting to kiss her on another were not sufficiently severe or pervasive to render her work environment objectively hostile. In Adusumilli v. Illinois Institute of Technology, 1998 WL 601822 (N.D.Ill. 1998), affirmed, 1999 WL 528169 (7th Cir. 1999) (unpublished), the District Court concluded, as a matter of law, that plaintiff had not been subjected to severe or pervasive conduct, as a result of being kissed by a fellow student on graduation day. In Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir.), cert. denied, 118 S.Ct. 172 (1997), which Dayton has not cited, the Sixth Circuit reversed a jury verdict in favor of the plaintiff in a hostile work environment, sexual harassment claim, concluding, as a matter of law, that the conduct of which the plaintiff had complained was not sufficiently severe to create an objectively hostile work environment. Therein, the plaintiff's co-workers repeatedly made comments, during meetings in which the plaintiff had participated, about parts of the female anatomy.
Although Adusumilli arose under Title IX, 20 U.S.C. § 1681,et seq., a statute which, inter alia, prohibits sexual harassment by educational institutions receiving federal funds, the District Court applied the standards that have been adopted under Title VII, to ascertain whether the plaintiff had a viable claim of sexual harassment.
The defendant was a real estate development company. One of the parcels of real estate it was developing was located next to a Hooters Restaurant. During a meeting, one of plaintiff's co-workers suggested that the development should be called "Hootersville," "Titsville" or "Twin Peaks." All participants at the meeting, except for plaintiff, laughed at that joke. On another occasion, plaintiff was required to make a presentation concerning her efforts to purchase a parcel of property from an individual whose last name was pronounced "bosom." The plaintiff's use of that individual's name caused everyone to laugh and resulted in similar comments concerning the potential name of the project. During another meeting, a project located next to a "biker bar" was discussed, and one of the plaintiff's co-workers asked her if she had been dancing on the tables of that establishment the previous Saturday night.
Contrasted with the foregoing cases in which courts have concluded, as a matter of law, that a single incident or isolated incidents did not constitute sufficiently severe or pervasive conduct as to render the work environment at the plaintiff's place of employment objectively hostile, are cases in which courts have reached the opposite conclusion, albeit on dramatically different facts. For instance, in Todd v. Ortho Biotech, Inc., 138 F.3d 733 (8th Cir. 1998), the court concluded that a single attempted rape was sufficiently severe to create an objectively hostile work environment. In Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir. 1995), the Second Circuit agreed with the District Court that an allegation of multiple sexual assaults by co-workers, all occurring during one evening, was sufficiently severe to constitute an objectively hostile work environment. See also,Fall v. Indiana University Bd. Of Trustees, 12 F. Supp.2d 870 (N.D.Ind. 1998) (single sexual assault by supervisor, which consisted of kissing plaintiff and sticking his tongue down her throat, as well as placing his hand under her blouse and on her breasts, sufficiently severe to create an objectively hostile work environment).
This case closely resembles those cases in which courts have concluded that the plaintiff had failed to raise a genuine issue of material fact as to whether the conduct in question was sufficiently severe or pervasive to cause the plaintiff's place of employment to be objectively hostile. Sheridan, an elderly gentleman, kissed the Plaintiff on the cheek, upon her return to work from sick leave. Sheridan's conduct is almost identical to that of which the plaintiff had complained in Adusumilli. It is certainly less severe than that at issue in Saxton (wherein plaintiff's supervisor had rubbed his hand along her upper thigh on two occasions and had attempted to kiss her on another) and cannot be considered to be more offensive that the overt sexual nature of the conduct in Quinn (wherein plaintiff's supervisor had told her that she had the "sleekest ass" in the office and had deliberately touched her breasts with papers he was holding). Conversely, Sheridan's conduct is not remotely similar to an attempted sexual or the multiple sexual assaults in Todd andTomka. Nor did Sheridan thrust his tongue down Plaintiff's throat or grope her breasts under her blouse, as did the perpetrator in Fall. If the Supreme Court's admonition that an isolated incident (other than one extremely serious) does not constitute sexual harassment is to have any meaning, then the kiss on the cheek incident cannot have constituted sexual harassment. Therefore, this Court concludes that no reasonable jury could find that the kiss on the cheek incident was sufficiently severe that it caused the Plaintiff's work environment to be objectively hostile. In addition, that incident could not have constituted pervasive conduct, since it was but one incident. See Faragher, 118 S.Ct. at 2283 (citing with approval decision by the Second Circuit, in Carrero v. New York City Housing Authority, 890 F.2d 569 (2nd Cir. 1989), that to be pervasive harassment must be continuous rather than episodic).
Moreover, the cases cited by the Plaintiff, which she argues support her position that there is a genuine issue of material fact as to whether the kiss on the cheek incident was sufficiently severe conduct to render her place of employment objectively hostile, are distinguishable. For instance, in Smith v. Norwest Financial Acceptance, Inc., 129 F.3d 1408 (10th Cir. 1997), the Tenth Circuit affirmed the decision of the District Court to overrule the defendant's motion for judgment as a matter of law in a hostile work environment, sexual harassment case. Therein, the plaintiff had alleged that her supervisor harassed her by repeatedly using exceedingly derogatory statements, laced with sexual overtones. Moreover, the supervisor engaged in that conduct in front of the plaintiff's co-workers, all of whom were males. In Davis v. Postal Service, 142 F.3d 1334 (10th Cir. 1998), the Tenth Circuit reversed the decision of the District Court to grant the defendant's motion for judgment as a matter of law on plaintiff's hostile work environment, sexual harassment claim. Therein, a co-worker of the plaintiff had repeatedly hugged and kissed her; made obscene gestures toward her; and, on one occasion, walked up behind her, put his hands on her waist and thrust his pelvis into her hips. In Anderson v. Kelley, 1993 WL 524235 (6th Cir. 1993), the female plaintiff and her male supervisor went on a seven-day business related trip, during which the supervisor on more than one occasion asked her to have sex with him, put his arm around her, partially entered a bathroom in the hotel suite they were sharing while she was taking a shower, and jumped at her while he was naked. The Sixth Circuit indicated that said conduct was sufficiently severe to support the District Court's finding that it created an objectively hostile work environment. In Robson v. Eva's Super Market, Inc., 538 F. Supp. 857 (N.D.Ohio. 1982), the plaintiff was constantly subjected to harassing conduct by a supervisor over a period of approximately three months, which conduct included offers to pay her for sexual favors, touching various parts of her body, repeatedly making sexually suggestive comments and finally becoming physically violent. Construing the evidence in the manner most favorable to the Plaintiff (the party against whom summary judgment has been sought), the conduct of Sheridan, kissing the Plaintiff on the cheek upon her return from sick leave, pales in comparison and significance to that of which the plaintiffs complained in the foregoing cases. None of those decisions remotely suggest that conduct, such as the kiss on the cheek incident, is sufficiently severe to create an objectively hostile work environment.
For instance, the supervisor would tell her that she would be "the worst piece of ass I ever had" and to "get a little over the weekend" so that she would return to work in a better mood.
Accordingly, based upon the foregoing, the Court sustains the Motions for Summary Judgment of Dayton (Doc. #97) and Sheridan (Doc. #100). The Court directs that judgment be entered in favor of the Defendants and against the Plaintiff.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.