Bowman v. Shawnee State University

• Decision Date: 15 March 2000
• Docket Number: No. 99-3255,99-3255
• Citation: 220 F.3d 456
• Parties: (6th Cir. 2000) Thomas E. Bowman, Plaintiff-Appellant, v. Shawnee State University; Jessica J. Jahnke, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 456

220 F.3d 456 (6th Cir. 2000)

Thomas E. Bowman, Plaintiff-Appellant, v. Shawnee State University; Jessica J. Jahnke, Defendants-Appellees.

No. 99-3255

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 15, 2000

Decided and Filed: July 17, 2000

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati; No. 96-01088--Sandra S. Beckwith, District Judge. [Copyrighted Material Omitted] Theodore R. Saker, VI., Columbus, Ohio, for Appellant.

Donald M. Collins, Richard N. Coglianese, Kevin L. Murch, OFFICE OF THE ATTORNEY GENERAL, EMPLOYMENT LAW SECTION, Columbus, Ohio, for Appellees.

Before: MERRITT, DAUGHTREY, and MAGILL,^* Circuit Judges.

OPINION

MAGILL, Circuit Judge.

This appeal arises out of Thomas E. Bowman's (Bowman) lawsuit against Shawnee State University (University) and Dr. Jessica J. Jahnke (Jahnke) alleging sexual harassment, discrimination, and retaliation in violation of Title VII, 42 U.S.C. §2000e, et seq., and Ohio Revised Code (O.R.C.) § 4112, assault and battery by Jahnke, and intentional or negligent infliction of emotional distress by both Jahnke and the University. Jahnke filed a counterclaim against Bowman alleging defamation, intentional infliction of emotional distress, and abuse of process. Bowman appeals the district court's¹ grant of summary judgment dismissing his sexual harassment claims, and his assault and battery claim. Bowman also appeals the court's dismissal of Jahnke's remaining counterclaims without prejudice. We affirm the judgment of the district court.

I. BACKGROUND

In 1985, Bowman, a former star tailback at West Virginia University, began working for the University in its athletic complex and as a part-time instructor. In 1988, Bowman became a full-time instructor teaching a variety of health and physical education courses. Jahnke was hired in 1990 and became the University's Dean of Education shortly thereafter. In 1991, Bowman was selected to be the Coordinator of Sports Studies (Coordinator) at the University, a position under Jahnke's supervision.

Beginning in 1991, Bowman claims that Jahnke sexually harassed him on various occasions, including the following alleged incidents:

1) In late 1991, while Jahnke was in Bowman's office, she placed her hand on his shoulder and rubbed it for approximately one to two seconds. Bowman jerked away from Jahnke and said "no."

2) In June of 1992, Bowman requested time off. Janke approved the request with the stipulation that Bowman not miss any classes. When Bowman returned to work, he found a memorandum from Jahnke chastising him for missing classes. Jahnke wrote this memo even though Bowman had not missed a class.

3) After emphasizing the importance of teaching every class, Jahnke reprimanded Bowman for not attending a meeting scheduled at a time when he had to teach a class. However, the meeting was not required. Jahnke had simply requested that faculty members in her department attend the meeting to offer their support for her Deanship that was being considered for elimination due to restructuring at the University.

4) Jahnke forced Bowman to apologize for failing to attend a party hosted by one of Jahnke's good friends and co-workers.

5) At a 1992 Christmas party, Bowman was leaning against the stove in Jahnke's house when Jahnke grabbed his buttocks. Bowman turned around and told Jahnke that if someone were to do that to her she would fire him or her. Jahnke replied that "she controlled [Bowman's] ass and she would do whatever she wanted with it."

6) In the spring of 1994, Bowman went to Jahnke's house to repair her deck, which took approximately an hour to fix. Jahnke, excited because she would be able to use the whirlpool on the deck, told Bowman "[l]et's get it finished, you and I can try [the whirlpool] out together."

7) In the summer of 1994, Jahnke invited Bowman and his girlfriend to her house to go swimming in her pool. After a short period of time, Bowman decided to leave, at which point Jahnke commented to him that "[n]ext time, you know, you ought to come by yourself and enjoy yourself."

8) On January 9, 1995, Bowman met with Jahnke in her office. Jahnke, claiming that she was irate because Bowman lied to her about a class he was teaching at Ohio University, put her finger on Bowman's chest, placed her hands upon him, and pushed him towards the door. As he left the office, Bowman told Jahnke that "[t]his is the last time you're ever going to touch me."

9) Jahnke called Bowman at home on various occasions. Bowman found the calls to be harassing, although they were not abusive or sexual in nature.

10) Bowman also alleges various other incidents, including the following: Jahnke demanded that Bowman leave a phone number with her when he was on vacation; Jahnke required Bowman to take additional athletic training in order for him to remain in the Coordinator position; Jahnke required Bowman to investigate fellow employees and students; Jahnke demanded that Bowman take his name off his office door when she removed him from the Coordinator position; Jahnke required Bowman to work in the summer without pay; Jahnke allowed females to work outside the University, but prohibited Bowman from doing so; Jahnke threatened that she would "pull the plug" on Bowman if he did not submit to her wishes and; Jahnke reprimanded Bowman for working extra jobs on his own free time, but demanded that Bowman come to her home during working hours to perform extra duties.

The alleged sexually harassing conduct by Jahnke came to a close in 1995. Within days of the January 9, 1995, meeting in Jahnke's office, Jahnke wrote a memorandum to Bowman informing him that she was angry that he lied to her about teaching a class at Ohio University². Janke then stripped away his responsibilities as Coordinator. Bowman's removal from the Coordinator position was only temporary, however, and did not result in a reduction of his salary. On January 19, 1995, Dr. Addington, University Provost, informed Bowman that his removal had been rescinded and the termination letter removed from his personnel file. Shortly after the final incidents giving rise to this lawsuit occurred, Bowman, suffering from mental illness, was placed on permanent disability retirement by the State Teachers Retirement System. Jahnke also resigned her position and left the University to operate a bed and breakfast in Maine.

On November 13, 1996, Bowman filed the current suit against the University and Jahnke. On July 30, 1997, the district court granted Jahnke's motion for judgment on the pleadings as to Bowman's Title VII claims against her on the basis that individual liability does not attach under Title VII unless the individual defendant otherwise qualifies as an employer. Because Bowman had only invoked the court's federal question jurisdiction, the district court dismissed Bowman's state law claims against Jahnke without prejudice.

On June 19, 1998, the district court granted summary judgment to the University on Bowman's Title VII and O.R.C. § 4112 sexual harassment, sexual discrimination, and retaliation claims and held that the Eleventh Amendment barred Bowman's state law claims against the University. The court also reinstated Bowman's state law claims against Jahnke and granted summary judgment to Bowman on Jahnke's defamation and intentional infliction of emotional distress counterclaims. The court, however, denied summary judgment to Bowman on Jahnke's abuse of process counterclaim.

On September 24, 1998, the district court dismissed Bowman's sex-discrimination claims against Jahnke under O.R.C. § 4112 on the basis that, similar to Title VII, liability does not attach to individuals under O.R.C. § 4112. The court also granted judgment to Jahnke on Bowman's negligent infliction of emotional distress and assault and battery claims but refused to enter judgment for Jahnke on Bowman's claim for intentional infliction of emotion distress.

On December 16, 1998, the district court dismissed Bowman's intentional infliction of emotional distress claim, holding that Bowman could not proceed with the claim until the Ohio Court of Claims made a determination as to whether Jahnke was entitled to immunity pursuant to O.R.C. § 9.86.³ On February 6, 1999, the district court granted Jahnke's motion for dismissal of her counterclaims and dismissed the counterclaims without prejudice. The court then declared the case closed. Subsequently, Bowman brought the present appeal.

II. ANALYSIS

A. Title VII claims against the University

Bowman argues that the district court erred in dismissing his Title VII sexual harassment claims. Bowman argues that the Supreme Court in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), held that a plaintiff does not need to prove that he suffered a tangible employment action even when the alleged harassment is not severe or pervasive. Bowman argues, in the alternative, that he suffered a tangible adverse employment action by the removal of his responsibilities as Coordinator.⁴ Bowman also argues that the district court erred in holding that the alleged sexual harassment was not severe or pervasive. The district court's grant of summary judgment is reviewed de novo. See Lucas v. Monroe County, 203 F.3d 964, 971 (6th Cir. 2000).

1. Did Jahnke's harassment culminate in a tangible employment action?

To prevail under a sexual harassment claim without showing that the harassment was severe or pervasive, the employee must prove the following: 1) that the employee was a member of a protected class; 2) that the employee was subjected to unwelcomed sexual harassment in the form of sexual advances or requests for sexual favors; 3) that the harassment complained of was on the basis of sex; 4) that the employee's submission to the unwelcomed advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's sexual demands...