Ellis v. Jungle Jim's Mkt., Inc.

• Decision Date: 13 October 2015
• Docket Number: No. CA2014–12–254.,CA2014–12–254.
• Citation: 44 N.E.3d 1034
• Parties: Dana ELLIS, Plaintiff–Appellant, v. JUNGLE JIM'S MARKET, INC., et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

44 N.E.3d 1034

Dana ELLIS, Plaintiff–Appellant

v.JUNGLE JIM'S MARKET, INC., et al., Defendants–Appellees.

No. CA2014–12–254.

Court of Appeals of Ohio, Twelfth District, Butler County.

Oct. 13, 2015.

Kimberly C. Young, Ryan M. Harrell, Mayfield Heights, OH, for plaintiff-appellant.

Croskery Law Offices, Robert F. Croskery, Cincinnati, OH, for defendant-appellee, Jungle Jim's Market, Inc.

Croskery Law Offices, Alexander J. Durst, Cincinnati, OH, for defendant-appellee, Juliano Caldas.

OPINION

ROBERT ALLEN HENDRICKSON

, J.

{¶ 1} Plaintiff-appellant, Dana Ellis, appeals from a decision of the Butler County Court of Common Pleas granting summary judgment to defendants-appellees, Juliano Caldas and Jungle Jim's Market, Inc. d.b.a. Jungle Jim's International Market, on her claims of sexual harassment and retaliation.¹ For the reasons set forth below we reverse and remand the matter to the trial court for further proceedings.

FACTUAL BACKGROUND

{¶ 2} In October 2012, Ellis began working for Jungle Jim's, a supermarket located in Fairfield, Ohio. Ellis was initially employed as a bagger, making $8 an hour. In this position, her responsibilities included bagging groceries for customers, helping customers, cleaning, and doing “take-backs” of items to their assigned departments when the items were not purchased by customers. At the time Ellis was hired, she received a copy of Jungle Jim's Employee Handbook and a copy of the store's Sexual Harassment Policy. This policy stated in relevant part that

sexual harassment is a sexual attention that is unwelcome and unwanted, e.g., when someone is treated in a way that he or she doesn't like. * * *

* * *

Jungle Jim's has taken steps to prevent and respond to incidents of sexual harassment. Our policy is stated on page 24 of the handbook. Complaints will be handled fairly and the process applies to all workers, men and women, employees, supervisors and management equally. Employees' privacy will be protected to the extent possible while complaints are investigated and actions are taken.

What You Can Do!

If you are the target of unwanted sexual attention or behavior, respond to the problem by making your feelings absolutely clear. Sometimes people don't realize that they're being offensive! Record the times, places and specifics of each incident with your reactions. Report continuing harassment according to our company policies. If your harasser is your manager, go to the person responsible for your manager's actions or if you would feel more comfortable, we are appointing Norma Sarosy to head up a committee to investigate all sexual complaints, so you may talk with her about situations of this nature.

Your Part at Jungle Jim's!

Make sure you're not involved in any forms of “inappropriate behavior.” * * * Please remember: If you're offended, don't hesitate to make that clear to the harasser and to your manager. Understand sexual harassment, what it is, and how it affects people and your working environment. Respond immediately if you are a victim of sexual harassment or you know someone who is.

Ellis signed a paper acknowledging receipt of the sexual harassment policy on October 9, 2012.

{¶ 3} In early February 2013, Ellis was transferred to the store's seafood department, where she began working as a “fish clerk” under the supervision of Caldas, the department's manager. Ellis received a $1 per hour pay raise, and her primary responsibilities in this new position included cleaning, filleting, and selling fish, helping customers, and keeping the department clean. About a month after being transferred to the seafood department, Ellis claimed Caldas began subjecting her to “unwelcome inappropriate sexual comments, questions, innuendo[s] and suggestions on a near daily basis.” According to Ellis' deposition testimony, beginning March 4, 2013, Caldas started to discuss his penis around her and asked what positions she likes to have sex in, if she liked oral sex, and if she swallowed. He also asked her what she knew about a split tongue, which he later explained had nothing to do with a snake as Ellis thought, but rather “it's when a guy has a split tongue, so they can lick a woman in both spots at the same time.” Caldas told Ellis he wanted to “bend [her] over and BF” her, and he would stick his tongue out at her and simulate licking. Ellis also claimed that on one occasion, Caldas unzipped his pants, stuck his hand through his zipper, and asked her to look at his penis. On another occasion, she stated Caldas inappropriately rubbed her leg and when she moved her leg and told him to get away from her, he asked her if she and another employee “were fucking in the cooler?” Ellis testified she believed her fellow co-workers, including Mark Likoy, James Pease, Virginia Rowland, and Alex Gleason, had seen or heard Caldas' inappropriate actions and remarks.

{¶ 4} Ellis claimed Caldas subjected her to inappropriate sexual remarks nearly every day and she regularly told him to stop his behavior and that his conduct was unwelcome. Ellis claimed Caldas' actions made it more difficult to work at Jungle Jim's and caused her emotional distress. She stated she began suffering from anxiety and nervousness, lost weight, and became physically ill as a result of his actions, often throwing up at work and at home. Nevertheless, Ellis did not personally report Caldas' behavior to any members of Jungle Jim's management because she felt Caldas had threatened her job when he “put his hand on [her] shoulder and * * * said, ‘I am just kidding, you know you like your job.’ ”

{¶ 5} Eventually, on May 3, 2013, another seafood employee, Likoy, reported to Travis King, the assistant store manager, that he found Ellis crying and saying that she felt like she was being sexually harassed by Caldas. King sent an email concerning this allegation to the store manager, Kathy Dick, who had been placed in charge of investigating the store's sexual harassment complaints.² The next morning, May 4, 2013, Dick began looking into the matter. Dick and King met with Ellis, who advised them that Caldas was indeed making sexual comments to her which she found offensive. Ellis provided Dick with the following written statement:

[Caldas] has made volgur [sic] statements to me. Such as licking of body parts, talking about his penis, making embarrassing statements about my facial hair, talking about a split tongue how it can lick on both parts of my body and would I like that done. Things get said everyday in front of people [and] its degrading and not appropriate. I have had a lot of people say to me that he should not speak like this and I have asked him to stop. It has not.

Ellis was advised by Dick that the issue would be addressed with Caldas and she should let Dick know if Caldas' behavior continued or if he said something that made her feel uncomfortable. Dick also offered to move Ellis out of the seafood department, but Ellis asked to remain in the department because Ellis felt like she was learning a skill there and she liked her job.

{¶ 6} Following their conversation with Ellis, Dick and King spoke with Caldas about Ellis' allegations. Caldas denied making any inappropriate comments to Ellis or engaging in inappropriate behavior. Caldas was given a verbal warning and informed that the behavior described by Ellis was inappropriate and would not be tolerated in the future. According to an Incident Report written by Dick, Caldas assured Dick and King “that it would not happen again.” Then, the next day, May 5, 2013, Caldas was written up in an “Employee Counseling Report.” This document was created by Dick and signed by both her and Caldas. The document states the following:

Describe the action and impact on job and/or company: On 5/4/13 I had a conversation with Dana [Ellis], a female employee in seafood. Dana stated that Juliano [Caldas] was making vulgar and sexual remarks to and in front of her. Dana stated that they made her feel uncomfortable and degraded.

Juliano—this is sexual harassment!

Describe expected improvement and/or standards for the future:

Juliano is not to say anything sexual in nature to Dana or any other employee.

Next action if employee does not meet the improvement/standards required: IF incident occurs again—Termination.

Sexual harassment will Not Be TOLERATED!!

{¶ 7} When deposed, Dick testified that in addition to talking to Ellis and Caldas, she had investigated Ellis' complaints by speaking with other employees who either currently worked or had worked in the seafood department with Caldas and Ellis. Dick specifically claimed she spoke with Virginia Rowland and Jamie Michal shortly after Ellis disclosed Caldas' actions on May 4, 2013. Neither woman corroborated Ellis' allegations nor indicated Caldas' behavior was inappropriate towards them or others. Dick did not, however, speak with Likoy, the individual who originally brought the allegations to light, as she did not believe him to be credible based on his past actions of leaving drunken voicemails on her work phone. Dick also did not obtain written statements from members of the seafood department, including Rowland or Michal, until around June 5, 2013. Regarding the timing of her investigation, deposition testimony from Rowland and Michal appeared to contradict Dick's testimony. Both Rowland and Michal indicated that the first time they were approached by Dick about Caldas' behavior was when they gave their written statements in June 2013.

{¶ 8} In any event, Ellis continued to work in the seafood department after making her May 4, 2013 complaint. Her hours were changed, however, so that she and Caldas did not work together alone in the department.³ In her deposition testimony, Ellis gave conflicting testimony about Caldas' behavior in the seafood department after May 4, 2013. At one point, she testified he continued to speak to her in “foul language.” At another point, she testified he no longer made comments to her, but he would whisper to other employees and smile at...