Fenton v. HiSAN, Inc.

• Decision Date: 23 April 1999
• Docket Number: No. 98-3322,98-3322
• Citation: 174 F.3d 827
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 1138 Heather FENTON, Plaintiff-Appellant, v. HiSAN, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 827

174 F.3d 827

79 Fair Empl.Prac.Cas. (BNA) 1138

Heather FENTON, Plaintiff-Appellant, v. HiSAN, INC., Defendant-Appellee.

No. 98-3322.

United States Court of Appeals, Sixth Circuit.

Argued March 11, 1999.

Decided April 23, 1999.

Julia S. Wiley, Jacobson, Maynard & Tuschman, Toledo, OH, Charles P. Baither, III (argued and briefed), Robinson, Curphey & O'Connell, Toledo, OH, for Plaintiff-Appellant.

John T. Landwehr (argued), Michael J. Spisak (briefed), Eastman & Smith Ltd., Toledo, OH, for Defendant-Appellee.

Before: MERRITT, KENNEDY, and JONES, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

In this coworker sexual harassment case brought by plaintiff Fenton, the primary issues are whether her employer, HiSAN, Inc., discriminated against her by creating a hostile work environment and retaliated against her for complaining about the conduct of her coworker. ¹ We agree with the district court that the employer is not liable and should be granted summary judgment.

I. Plaintiff's Sexual Harassment Claim

Ohio discrimination law depends on federal case law. See Delaney v. Skyline Lodge, Inc., 95 Ohio App.3d 264, 270, 642 N.E.2d 395 (1994). In Burlington Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998), the Supreme Court again held that an employer's liability in sexual harassment cases is governed by common law agency principles and specifically adopted section 219(2) of the Restatement (Second) of Agency as setting out the governing principles:

"A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:

(a) the master intended the conduct or the consequences, or

(b) the master was negligent or reckless, or

(c) the conduct violated a non-delegable duty of the master, or

(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation."

Restatement (Second) of Agency § 219(2) (1985) (emphases added).

In Ellerth, the Supreme Court concluded that subsection (d)--and specifically the last clause thereof ("or he was aided in accomplishing the tort by the existence of the agency relation")--applies in supervisor harassment cases and therefore does not require a showing of negligence or reckless conduct under subsection (b) in order to bring the case within the supervisor's "scope of employment." Hence the Court concluded that employers may be held, subject to certain affirmative defenses, vicariously liable in supervisor sexual harassment cases. See Ellerth, 118 S.Ct. at 2267. But under the Supreme Court's reasoning in Ellerth, unlike a supervisor a coworker does not have power or authority emanating from the employer over the victim. Therefore since the "master" does not normally intend or abet the coworker's conduct (subsection (a)) or have a nondelegable duty to prevent it in all circumstances (subsection (c)), the liability of the employer in coworker cases is governed by subsection (b) of section 219(2) of the Restatement (Second) of Agency. The victim of coworker sexual harassment must therefore prove negligence by the employer. See id. This standard is consistent with the negligence standard we have previously employed in coworker harassment cases. In Blankenship v. Parke Care Centers, Inc., 123 F.3d 868, 872-73 (6th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998), we stated that in coworker cases the standard is based on a "reasonableness" standard: "when an employer responds to charges of coworker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known."

Based upon Blankenship and the Supreme Court's opinion in Ellerth, we conclude that in order for a plaintiff to establish a prima facie Title VII claim of hostile environment sexual harassment by a coworker, she must demonstrate that the following elements of the statutory tort are present: (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment complained of was based upon sex; (4) the harassment unreasonably interfered with the plaintiff's work performance or created a hostile or offensive work environment that was severe and pervasive; and (5) the employer knew or should have known of the charged sexual harassment and failed unreasonably to take prompt and appropriate corrective action. It is clear under this standard that the employer should not be held liable for the coworker's conduct in this case. Plaintiff Fenton has not established the fifth element of a prima facie case against Defendant HiSAN.

Fenton was employed for six months in 1996 at Defendant's factory. She worked during the "B" shift from 3:00p.m. to 11:00p.m. Due to an increase in sales and the need for more prototype parts, the company decided to expand the number of positions in its prototype parts area, where its employees operate two programmable bending machines for the manufacture of such parts. On July 29, 1996, plaintiff and four other employees successfully bid for these new positions, which were to start on the "A" shift from 5:00a.m. to 3:00p.m. while successful bidders underwent training with the possibility of moving to the "B" shift depending on an employee's seniority. On August 26, 1996, plaintiff and the other new prototype parts workers began training in their area; all five worked the "A" shift under the supervision of Rebecca Shenk.

On or about the middle of the second week of September 1996, a coworker in this department named Charles Brown began making vulgar comments to Fenton. Brown made comments in front of other co-workers that if Fenton had any more children she would be wider than the Grand Canyon and that she would have to use shims off of one of the machines in the shop to make any man want her again; that he was going to call 1-900 numbers and "play with himself"; and that men "only want one thing from you." These comments continued during the following week when Brown said that Fenton is "sexy when she is angry"; that she should "stop showing off her f-ing ass"; and that a co-worker was tired because of the "wet spot women make on the bed." Throughout both weeks, Brown would hold up pictures from magazines and make comments like "look at those tits."

Plaintiff mentioned Brown's behavior to co-worker Dan Martin, who suggested that she report the situation to Martin's supervisor, Barb Rice. On October 3, 1996, plaintiff reported Brown's behavior to Rice, even though Rice was not plaintiff's own supervisor. Rice arranged a meeting that same day with plaintiff, herself, and Don Turner, Rice's supervisor and the plant superintendent. At approximately 11:00 a.m., they discussed the situation. Turner then reported the complaints to Lance Garceau, the Human Resources Manager.

Near the end of that same day, Rebecca Shenk told plaintiff she would be moved from the "A" to the "B" work shift. Shenk did not yet know about plaintiff's complaints against Brown. According to the testimony of Jon Miller, team leader in the prototype parts area, he and Shenk decided several days earlier--either on September 30 or October 1, 1996--that plaintiff and one other employee had been sufficiently trained in the operation of the factory's machines to be transferred to the "B" shift. Upon learning of her transfer, plaintiff asked Shenk whether she would be allowed to work her overtime hours before her shift and also asked for time to adjust her babysitting arrangements. Shenk told plaintiff she did not think that would be a problem and that plaintiff would start on the "B" shift the week of October 22, 1996. On October 3, 1996, plaintiff made arrangements with her daughter's babysitter to have her watch the baby during plaintiff's new hours on the "B" shift.

On October 4, 1994, the day following plaintiff's initial complaint to management, Garceau met with plaintiff to discuss Brown's behavior. Garceau conducted an internal investigation and spoke with a number of individuals to determine if plaintiff's allegations were true. He also checked Brown's file and found only one disciplinary write-up arising from a complaint that Brown had spread a rumor that a coworker had come into work after having consumed alcohol.

On October 7, Brown himself--not plaintiff Fenton--informed Shenk that plaintiff had filed a charge against him. Shenk testified that this was the first time she had been made aware of plaintiff's complaints about Brown. On October 8, 1996, Brown's work station was changed from the prototype parts area to the "oven." Brown allegedly walked back to the parts area and made negative comments within earshot of plaintiff, describing his anger over the complaint against him. That same day, Garceau met with Brown and Shenk to discuss Brown's behavior toward plaintiff. Garceau informed Brown that he was to stop making offensive comments and that his failure to comply would result in disciplinary action. According to Shenk's testimony, Brown was noticeably quiet and concerned about his job after this meeting. Brown took vacation leave during the week of October 9, 1996.

Sometime between October 9 and October 11, 1996, Shenk informed plaintiff that she would not be able to come in early on the "B" shift, but would have to work the normal hours of 3:00 p.m. to 1:00 a.m. Management had decided that the overlap between the "A" and "B" shifts would be inefficient and therefore should be eliminated. Plaintiff, who had a small child, again contacted her babysitter to make appropriate arrangements; but the babysitter was unwilling to work past midnight and so plaintiff was unable to work out to her satisfaction an arrangement for day care.

On either October 10 or 11, 1996, plaintiff approached Garceau and asked to talk to him about...