Hollar v. Rj Coffey Cup, LLC
| Decision Date | 20 July 2007 |
| Docket Number | No. 3:06CV01084.,3:06CV01084. |
| Citation | 505 F.Supp.2d 439 |
| Parties | Regina HOLLAR, Plaintiff v. RJ COFFEY CUP, LLC et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Roxi A. Liming, Columbus, OH, Sharon K. Cason-Adams, Demers & Cohen, New Albany, OH, for Plaintiff.
F. Stephen Chamberlain, Lima, OH, R. Kevin Greenfield, Franklin & Greenfield, Toledo, OH, for Defendants.
Plaintiff, Regina Hollar, alleging sexual harassment and constructive discharge, sues her former employer, RJ Coffey Cup, LLC (Coffey Cup), and her former supervisor, Roy Coffey. Coffey is part owner of Coffey Cup, a restaurant in Wapakoneta, Ohio.
Hollar assets five claims, each of which she asserts against one or both defendants. In Count One, Hollar alleges that both Coffey and Coffey Cup violated O.R.C. § 4112.02 (Ohio Civil Rights Act). Hollar claims that Coffey's conduct constituted quid pro quo sexual harassment and created a hostile work environment. In Count Two, Hollar sues Coffey Cup for quid pro quo and hostile work environment sexual harassment under 42 U.S.C. § 2000e-5(e) (Title VII).1 In Count Three, Hollar sues Coffey for assault and battery. In Count Four, Hollar sues Coffey Cup for negligent supervision. In Count Five, Hollar sues both defendants for wrongful discharge in violation of Ohio public policy.
Pending are: 1) Coffey's motion for summary judgment on Counts I and V;2 and 2) Coffey's motion to strike paragraphs 48, 64, and 78 of the affidavit submitted by Hollar in opposition to defendants' summary judgment motion. For the following reasons, Coffey's motion to strike shall `be denied in full, and Coffey's motion for summary judgment shall be granted in part and denied in part.
Coffey Cup is a restaurant owned by Coffey and John Schlenker. Coffey's wife and Schlenker's wife worked at the restaurant, and employees regarded them, as they did Coffey, as their supervisors. Hollar joined Coffey Cup in December, 2001 after she separated from her husband. She worked as a prep cook under the immediate supervision of Coffey, who was in charge of the kitchen.
From December, 2001 to August, 2002, Coffey frequently leaned into Hollar and rubbed his body against hers; commented about her shape, hair, and the way she smelled; and described details of his unhappy marriage.3 Hollar never complained to anyone about this behavior.
Hollar quit her job at Coffey Cup in August, 2002 after reconciling with her husband. She does not claim that this decision was motivated by Coffey's alleged harassment.
In March, 2003, after again separating from her husband, Hollar returned to Coffey Cup. From March, 2003 to December, 2004, she worked as a cook Monday through Friday and every other Saturday until 2:00 p.m. Coffey saw Hollar when he worked weekends, but because he did not arrive until 4:00 p.m. during the week, Hollar had limited contact with him during that period. When Hollar worked with Coffey, he continued his previous behavior.
Hollar was promoted to day manager in December, 2004. As a result of this, promotion, she remained at the restaurant after 2:00 p.m., when her shift as a cook was over, to perform her managerial duties. As a result, Hollar was often at the restaurant until 4:00 p.m. or later, when Coffey arrived. Her managerial duties, which included arranging catering jobs and ordering supplies, involved frequent contact with Coffey because he supervised the kitchen.
From December, 2004 to May, 2005, Coffey's unwelcome conduct significantly escalated. Coffey offered to rub Hollar's feet and back and told her that he wanted to make her feel good. He also told her that he wanted to get rid of his wife and that he wanted Hollar to move in with him. Coffey invited Hollar to his house when his wife was at work, and often invited himself over to Hollar's apartment. Hollar allowed him to enter her apartment only when another person was present. He left gifts for her in her car. He called her at Coffey Cup every day and would whisper into the phone that he missed her. Coffey also told her that he was the only reason she had a job at Coffey Cup and that he was protecting her from being fired by his wife and Schlenker's wife.
To attempt to deter Coffey, Hollar asked her boyfriend to visit the restaurant during the late afternoons, when Hollar worked with Coffey. The presence of Hollar's boyfriend appeared to anger Coffey, and Coffey told Hollar that her boyfriend was no longer permitted to come to the restaurant.
On May 5, 2005, Coffey asked Hollar to go with him to the cooler in the back of the restaurant to show her something about "the ordering." [Doc. 43-2, ¶ 59]. Once there, Coffey grabbed Hollar and pulled her close to him. He then "stuck his tongue down her throat." [Doc. 43-2, ¶ 61]. Hollar pushed him away and told him' to stop, and he responded that she was "just scared." [Doc. 43-2, ¶ 63]. He then opened the cooler door and told her to enter the cooler with him. She instead left the cooler, went to the front of the restaurant to get her things, and left the restaurant. She was upset and vomited next to her car.
The next day, Hollar called in sick and arranged a meeting with the Schlenkers for that evening. Hollar described the previous day's events and Coffey's earlier behavior toward her. She told them that she was afraid that she would lose her job and that she could no longer workwith Coffey.
The Schlenkers laughed at Hollar's complaints and Mrs. Schlenker joked that Coffey was "an old hillbilly" and said that "he would not hesitate to bring out a gun." [Doc. 43-2, ¶ 77]. Mrs. Schlenker suggested that Hollar could work only morning shifts and not interact with Coffey anymore, and she told Hollar that she would call her the next day.
Late the next day, Hollar applied for unemployment benefits. Mrs. Schlenker never called or contacted Hollar.
Hollar later filed a charge of sex discrimination with the EEOC, which issued her a Right to Sue letter on April 13, 2006.
Coffey moves to strike Paragraph 48 of Hollar's affidavit, which states: "his behavior interfered with my work." Coffey argues that this paragraph should be stricken as a legal conclusion. I disagree. This statement does not involve the "application or interpretation of law," but represents Hollar's interpretation of her personal experiences. F.R.C. Int'l Inc. v. U.S., 278 F.3d 641, 643 (6th Cir.2002) (quoting Black's Law Dictionary (7th ed. 1999)).
Coffey correctly points out that whether harassment unreasonably interferes with Hollar's work is one factor in determining whether a hostile work environment existed. Hollar's mere assertion, however, that Coffey's behavior interfered with her work cannot establish this factor. Hollar must show that Coffey's harassment unreasonably interfered with her work. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). In this statement, Hollar provides only one piece of information the fact-finder may consider in determining whether Hollar has established one element of her claim.
Thus, Coffey's motion to strike Paragraph 48 of Hollar's affidavit shall be denied.
Next, Coffey moves to strike paragraph 64 of Hollar's affidavit, which states that she "rushed out of the cooler[, got her] purse[,] and left the restaurant?' Coffey claims that this paragraph directly contradicts Hollar's earlier deposition testimony. In her deposition, Hollar stated that she "walked out of the cooler" and went to the front of the restaurant, where she was asked by another cook what was wrong. She, then stated that she walked to a different area of the restaurant for a minute with another co-worker, Kristina Lambert, to get some papers that Lambert had brought in for her, and walked out of the restaurant.
First, I must determine whether this statement in Hollar's affidavit contradicts Hollar's deposition testimony. Aerel, S.R.L. v. PCC Airfoils, 448 F.3d 899, 908-09 (6th Cir.2006). Some degree of contradiction is permissible as long as the affidavit is "not inherently inconsistent" with the deposition testimony. Id. at 908 (quoting Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-94 (5th Cir.1980)). If a contradiction exists, I must determine whether Hollar has attempted to create a sham fact issue. Id. If I find that no direct contradiction exists and that Hollar has made no attempt to create a sham fact issue, I must deny the motion to strike. Id.
I disagree that Hollar's affidavit directly contradicts her deposition testimony. Hollar could have both "walked" and "rushed" out of the cooler, and as Hollar points out in her brief, she was not asked during her deposition how quickly she left the cooler. While she did not leave the restaurant immediately after leaving the walk-in cooler, she only paused to gather her purse, keys, and papers, taking only a few minutes to leave. This does not directly contradict Hollar's testimony that she left the restaurant after the incident in the cooler. Further, Hollar does not attempt to make a sham fact issue in her affidavit. She does not add new information or attempt to change what she said before; she merely restates more succinctly what she had stated in her deposition.
Thus, Coffey's motion to strike Paragraph 64 of Hollar's affidavit shall be denied.
In paragraph 78 of Hollar's affidavit, Hollar states, "I think Jean Schlenker told me that to try to scare me." Coffey argues that this paragraph should be stricken because Hollar has no personal knowledge of why Mrs. Schlenker made the statement.
Hollar, however, claims that paragraph 78 describes her own feelings and interpretation of Mrs. Schlenker's statement, and not Mrs. Schlenker's intentions. I agree. At the summary judgment stage, a court may...
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