Opinion
Case No. 3:02CV7581
October 28, 2003
ORDER
This is an employment discrimination case in which the plaintiff claims that she was subjected to a sexual harassment in the nature of offensive comments and actions on the part of three co-workers. Those individuals were a store manager, an assistant manager, and an assistant manager in training.
The case was removed to this court from the Hancock County, Ohio, Court of Common Pleas. Pending is the defendant's motion for summary judgment. For the reasons that follow, the motion shall be granted.
Plaintiff worked as a delivery driver in the defendant's Findlay, Ohio, store from February 8, 2002, until July 9, 2002, when she notified the defendant's Human Resources Department that she was quitting due to sexual harassment. A few days later the company conducted an investigation at the Findlay store, and imposed discipline as a result of its investigation into plaintiffs allegations. The store manager was given a final corrective warning for failing immediately to report a complaint plaintiff had made on July 9th before she quit. The assistant manager received a written warning for a remark he allegedly had made to plaintiff.
Plaintiff does not contend that she incurred any tangible job detriment as a result of the alleged harassment. She likewise does not contend that any term or condition of employment was contingent in her acquiescence in the harassment.
The plaintiff acknowledges that she was aware of that the company had an anti-discrimination policy, which was communicated through posters in the store, and the nature and extent of which were described in the employee handbook. Plaintiff acknowledged having read the handbook, which stated four methods, beyond complaining to one's supervisors, of reporting discrimination, including allegations of harassment, to the company. Those alternatives included complaining to the next higher management level, calling the Human Resources Department on a toll-free line, or calling either of two numbers for the Risk Management Department. Complaints could be anonymous.
Plaintiff made no complaint to anyone — other than expressing her objections to the three supervior/harassers with whom she worked — before the day she quit. The fact that she called the Human Resources Department then shows that she was aware of the recourse available to her when her complaints within the store were not heeded.
Defendant does not contend, for purposes of its motion, that plaintiff would be unable to establish a prima facie case. Defendant argues, rather, that the undisputed facts — namely, that the plaintiff was aware of how she could protect herself from further harassment, and, once she notified the company, it responded appropriately, even though she had left its employment — show that it is entitled to summary judgment.
The undisputed facts, defendant argues, give rise to an affirmative defense:
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.Burlington Indus, v. Ellerth, 524 U.S. 742, 765 (1998); Famgher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (internal citation omitted).
Ohio courts have adopted the Ellerth-Fragher affirmative defense. See, e.g., Peter son v. Buckeye Steel Casings, 133 Ohio App.3d 715, 723 (1999).
As the Supreme Court emphasized in Faragher, "a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense." 524 U.S. at 807-08. Ohio courts have likewise adopted this standard. See, e.g., DeArment v. Timken Co., 2003 WL 1818635, *3 (Ohio App.); Harmon v. GZK, Inc., 2002 WL 191598, *11 (Ohio App) (defendant entitled to judgment as a matter of law where evidence showed that its anti-harassment policy was appropriate, and had been communicated to the plaintiffs, who, however, failed to notify defendant of alleged harassment).
I conclude, accordingly, that the evidence is undisputed that the defendant had made plaintiff aware of the recourse that she could take in the event complaints to her supervisors/harassers were not heeded Defendant can not be faulted, much less held accountable for, plaintiffs failure to take the steps that defendant had made available to her. The defendant is entitled to summary judgment on plaintiffs sexual harassment claim.
Plaintiff also asserts a claim for intentional infliction of emotional distress. To prevail on such claim, plaintiff must show: 1) the defendant either intended to cause severe emotional distress or knew or should have known that its action would result in serious emotional distress to her; 2) its conduct was so extreme and outrageous as to go beyond all possible bounds of decency and can only be described as utterly intolerable in a civilized community; 3) its actions were the proximate cause of her psychic injury; and 4) the mental anguish she suffered is serious and such that no reasonable person could be expected to endure it. See, e.g., Stockdale v. Baba, 153 Ohio App.3d 712, 724 (2003).
As stated in Shariff v. Rahman, 152 Ohio App.3d 210, 215 (Cuyahoga Cty. 2003), "[a]n action for intentional infliction of emotional distress requires not only outrageous conduct, but a resulting emotional injury that is `both severe and debilitating.'" Mere conclusory statements that a defendant's conduct was extreme or outrageous do not raise a genuine issue of material fact. Oglesby v. City of Columbus, 2002 WL 1726033, *4 (Ohio App.) (citing Tyszka v. EdwardMcMahon Agency, 188 F. Supp.2d 186, 196 (D.Conn. 2001).
Here, plaintiff has failed to allege that the defendant's conduct was extreme or outrageous, much less support such allegations with evidence. On this basis alone, the defendant is entitled to summary judgment as to this claim.
In any event, the plaintiff also has failed to present proof of the extent of her psychic injuries sufficient to withstand defendant's motion. Thus, a plaintiff "claiming severe and debilitating emotional injury must present some guarantee of genuineness in support of [her] claim, such as expert evidence, to prevent a court from granting summary judgment in favor of the defendant." Knief v. Minnich, 103 Ohio App.3d 103, 108 (LoganCty. 1995). Accord, Powell v. Grant Med. Ctr., 148 Ohio App.3d (2002); Oglesby, *4 (summary judgment proper where plaintiff fails to submit any medical evidence regarding such claim). Plaintiffs affidavit or deposition testimony claiming severe distress, such as offered in this case, is insufficient Oglesby, supra; Morris v. Ohio, 2002 WL 31429811, *10 (Ohio App).
Plaintiff has submitted nothing in support of her claim of severe and debilitating injury other than her own statements. This is not enough to overcome defendant's motion for summary judgment as to this claim.
In light of the foregoing, it is
ORDERED THAT defendant's motion for summary judgment be, and the same hereby is granted.
So ordered.