517 F.3d 321 (6th Cir. 2008), 07-3235, Hawkins v. Anheuser-Busch, Inc.

Docket Nº:07-3235.
Citation:517 F.3d 321
Party Name:Amanda HAWKINS et al., Plaintiffs-Appellants, v. ANHEUSER-BUSCH, INC., Defendant-Appellee.
Case Date:February 19, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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517 F.3d 321 (6th Cir. 2008)

Amanda HAWKINS et al., Plaintiffs-Appellants,

v.

ANHEUSER-BUSCH, INC., Defendant-Appellee.

No. 07-3235.

United States Court of Appeals, Sixth Circuit.

Feb. 19, 2008

Argued: Oct. 30, 2007.

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 05-00688-Gregory L. Frost, District Judge.

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ARGUED:

Alexander M. Spater, Spater Law Office, Columbus, Ohio, for Appellants.

Mark A. Knueve, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for Appellee.

ON BRIEF:

Alexander M. Spater, Spater Law Office, Columbus, Ohio, for Appellants.

Mark A. Knueve, Alicia M. Chiu, Stacia Marie Jones, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for Appellee.

Before: DAUGHTREY and GILMAN, Circuit Judges; EDMUNDS, District Judge.[*]

OPINION

RONALD LEE GILMAN, Circuit Judge.

Four female employees of Anheuser-Busch, Inc. appeal from a grant of summary judgment in favor of the brewery in this sex-discrimination and retaliation case. Three of the employees--Jackie Cunningham, Amanda Hawkins, and Cherri Hill--allege that sexual harassment by a coworker, Bill Robinson, created a hostile work environment in violation of Ohio Revised Code § 4112. Hill and the fourth employee, Kathryn Jackson, also claim that the brewery is liable for Robinson's acts of retaliation.

The district court granted summary judgment in favor of Anheuser-Busch on the discrimination claims after finding that (1) the women failed to make a showing that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, and (2) no reasonable juror could conclude that Anheuser-Busch knew or should have known of the harassment, or that it failed to take prompt and

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appropriate corrective action. As to the retaliation claims, the court dismissed them on the grounds that (1) this circuit has not previously recognized a claim for coworker retaliation, and (2) Hill and Jackson failed to allege conduct by Anheuser-Busch that rose to the level of an adverse employment action.

For the reasons set for below, we AFFIRM the district court's grant of summary judgment as to Hawkins's hostile-work-environment claim and Jackson's retaliation claim, but we REVERSE the grant of summary judgment as to Cunningham's and Hill's hostile-work-environment claims and Hill's retaliation claim and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

1. Diana Chiandet

The first reported incident of Robinson harassing a female employee at Anheuser-Busch's plant in Columbus, Ohio involved an employee named Diana Chiandet. Chiandet worked on brewery line 75 with Robinson. Although Chiandet is not a plaintiff in the present case, prior incidents of sexual harassment involving Robinson are relevant to the claims in this case, as discussed in Part II.C.2. below.

Chiandet complained to brewery management in July of 1993 that she had received three harassing and threatening anonymous notes. The first note stated: "Are you looking for a real good hot time with a real hard body man if so I'm your man. Call my line to nite [sic] for some read [sic] hot sex talk. 1800-334-1256. I'll be waiting." The second note read: "Hi - Are you lonely and looking for a real hot time if so I'm the man for you. If you want something Hot and Hard call me at 1-800-335-666. They call me Mr. Big Daddy." The final note stated: "What's up sexy. So are your ready for something nice and hard because I think it's about time we got together so we can have a good time all nite [sic] long. I no [sic] you like it long and Hard. And I have tools to do that all nite [sic] thing. P.S. Don't worry I will make real good to you. I no [sic] what you like PAIN." On August 4, 2003, shortly after reporting the notes to management, Chiandet told her supervisor that her car had been sideswiped at work.

The brewery concluded that the notes were "inappropriate, lewd, suggestive and threatening," and launched an investigation into the incident. A handwriting expert promptly determined that Robinson was the author of the notes. Although Robinson originally denied writing them, he later admitted to being the author after he was confronted with evidence from the handwriting expert. This caused Anheuser-Busch to terminate Robinson's employment in early September of 1993. Robinson pursued a union-backed grievance.

Under the collective bargaining agreement at the brewery, management may terminate employees only for just cause. Employees who wish to challenge a disciplinary action taken against them can file a grievance. Grievances are entertained first by a department head, then by a human resources manager, and finally by a Multi-Plant Grievance Committee. The Grievance Committee is composed of two company representatives, two union representatives, and a mutually agreed-upon arbitrator. Following Robinson's appeal, the Grievance Committee reinstated him after a six-month suspension.

2. Jackie Cunningham

Cunningham was hired by Anheuser-Busch in May of 1996. She was transferred

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to brewery line 75 in 1999 and began working with Robinson at that time. Cunningham became concerned about Robinson's conduct after she saw him near her residence and believed that he was following her. She alleged that, shortly after she saw Robinson near her home, he began to harass her at work. Specifically, Cunningham recounted in her deposition that (1) during a training session in 1999, Robinson sang a rap song to her with the lyrics: "Baby, won't you back that thing up," and then held money in his hand and said: "Is that what it's gonna take?", (2) Robinson tried to put his hand on her shoulder, but she moved away, (3) Robinson said: "I will suck your pussy but you got to suck my dick," (4) Robinson caressed her back and she responded by screaming at him: "Don't touch me," (5) Robinson told her to come over to his vehicle at work and, when she refused, he chased her around and tried to grab her as she ran away, (6) Robinson asked her: "Why don't you just suck my dick?", and (7) Robinson told Cunningham that he was getting rid of his girlfriend, and asked her: "Why don't you just make up your mind?" while trying "to feel on her." Cunningham also said that she could not remember every instance of harassing behavior, but that Robinson would harass her "on and off" and would "push on and on."

She allegedly complained to her supervisor, Eric Steinberg, "a few times" about Robinson's behavior and contacted plant operations manager Richard Sambecki to request a transfer. Cunningham also asserted that she told her supervisors that life was "unbearable" on line 75 and that Robinson was "really trying to make [her] job difficult," but admitted that she did not explicitly say that Robinson was sexually harassing her. She also talked with her union steward, Leslie Schoenian, about Robinson's behavior. Schoenian advised Cunningham of the things that Robinson "was capable of" and suggested that the best solution would be to simply move to another brewery line. Shortly thereafter, Cunningham told Schoenian that she wanted to move lines, and Schoenian discussed the matter with management. The brewery then transferred Cunningham to a new line. Even after the transfer, however, Cunningham alleged that she felt harassed by Robinson's friends and said that "stuff still followed [her]" to her new position.

3. Cherri Hill

Hill began working at the brewery in August of 1999. In January of 2000, she started working on line 75 with Robinson. She alleges that Robinson began harassing her in November of 2000. In her deposition, Hill recounted numerous instances of touching--stating that Robinson touched her arms, rubbed her shoulders, and walked up close behind her--and that he regularly made "lewd and explicit" comments. When Hill asked Robinson to stop, he said that he knew she "liked it" and that he "wanted to have sex" with her. Hill stated that Robinson would walk close to her, touch her behind, and that on one occasion he rubbed against her with "his private area" and grabbed her around the waist. She also said that on three or four occasions Robinson told her "she had big breasts" and a "big butt." On another occasion, Robinson told her "he wanted to fuck" her and said, "I bet you have some good pussy and I know that you would like this. You should let me take you away from your boyfriend." In addition to recalling theses specific incidents, Hill testified that Robinson made lewd and sexual comments "all the time."

Hill told a coworker in November of 2000 that Robinson was bothering her. She also contacted Schoenian, her union steward, to complain about Robinson's conduct. Hill then asked her supervisor, Don

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Schlarman, if she could transfer lines after telling him that Robinson "had been touching her and talking dirty to her." Donald Manley, the brewery's human resources manager, was informed of Hill's complaint and ordered Cortlin Davidson, a human resources investigator and assistant manager, to look into Hill's allegations.

Davidson began his investigation by interviewing Hill. During the interview, Hill enumerated the ways in which Robinson had harassed her and informed Davidson that Robinson had also harassed Cunningham. Davidson's notes from his interview with Hill recount that Hill complained that Robinson had been grabbing her, rubbing up against her, making suggestive sexual remarks, and that "every time" they were together Robinson was...

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