Kohler v. City of Wapakoneta, No. 3:04 CV 7148.

• Decision Date: 12 August 2005
• Docket Number: No. 3:04 CV 7148.
• Citation: 381 F.Supp.2d 692
• Parties: Denise KOHLER, Plaintiff, v. CITY OF WAPAKONETA, et al., Defendant.
• Court: U.S. District Court — Northern District of Ohio

381 F.Supp.2d 692

Denise KOHLER, Plaintiff, v. CITY OF WAPAKONETA, et al., Defendant.

No. 3:04 CV 7148.

United States District Court, N.D. Ohio, Western Division.

August 12, 2005.

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Grant D. Shoub, Russell E. Carnahan, Hunter, Carnahan, Shoub & Byard, Columbus, OH, for Plaintiff.

Anastasia K. Hanson, Joan C. Szuberla, Toledo, OH, Dennis P. Faller, Wapakoneta, OH, Jane M. Lynch, Green & Green, Dayton, OH, for Defendants.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Defendant David L. Harrison, Sr.'s ("Harrison") Motion for Summary Judgment (Doc. No. 38), to which Plaintiff has responded (Doc. No. 59) and Harrison has Replied (Doc. No. 77). Also before the Court is the Motion for Summary Judgment of Defendants City of Wapakoneta, Ohio, ("the City") Mayor Donald R. Wittwer, ("Wittwer") and Safety Director Rex Katterheinrich ("Katterheinrich") (Doc. No. 46), to which Plaintiff has Responded (Doc. No. 67), and Defendants have Replied (Doc. No. 78). The Court has jurisdiction under 28 U.S.C. §§ 1331 & 1367. For the following reasons, Harrison's motion is granted in part and denied in part. The Motion of the City, Wittwer, and Katterheinrich is granted.

BACKGROUND

Plaintiff Denise Kohler ("Kohler") at all relevant times was, and is, a dispatcher at the City of Wapakoneta Police Department. Defendant Harrison was Wapakoneta's Chief of Police from 1998 until May 2, 2002. Defendant Wittwer was and is the mayor of Wapakoneta, and Defendant Katterheinrich was and is the City's Safety Director.

Since June 21, 2000, the City has had a sexual harassment policy in place requiring it to "take preventive and immediate remedial steps to stop sexual harassment from occurring," and requiring department heads to discuss the policy with all employees. (Doc. No. 67, pp. 9-10). Harrison never discussed the policy with police department employees. Likewise, the police department itself had a sexual harassment policy that Harrison himself developed in conjunction with outside consultants, but that he likewise did not discuss with his employees.

Kohler's allegations relevant to her claims are that: (1) in May of 1997, before he was Chief of Police, Harrison showed her a pornographic picture on a computer; (2) in June of 1997, she came to work and found another pornographic picture anonymously left on her computer screen; (3) in early 2002, Harrison informed her that one could purchase used women's underwear on the Internet; (4) in February and March of 2002, Harrison sent four offensive e-mails¹; (5) on May 2, 2002, she discovered a running tape recorder behind a trash can in a toilet stall in the Police Department women's room, left there by Harrison; and (6) also on May 2, 2002, Harrison e-mailed to numerous people an old, official photograph of Kohler in uniform. Kohler did not complain about the 1997 and 1998 comments or e-mails, and testified that she was able to continue to perform her job duties during those times.

When Kohler discovered the tape recorder on May 2, 2002, while using the restroom, she was first concerned that a video camera might also be present. She eventually left the bathroom and took the tape recorder to a detective. They listened to the tape and discovered that it contained only sounds of water running, doors opening, and other mechanical sounds, but no voices or "personal noises." Nevertheless, Kohler was noticeably upset and shaken by the incident. Harrison observed Kohler and the detective with the tape recorder and was then seen packing up belongings in his office.

Kohler and the detective informed Katterheinrich and eventually Wittwer about the discovery of the tape recorder and their suspicion that Harrison was responsible. Katterheinrich and Wittwer made the determination to place Harrison on administrative leave and to refer the matter to the state Bureau of Criminal Investigation ("BCI") for investigation, rather than investigate it internally. When they called Harrison into a meeting late in the day on May 2 to inform him of this, he tendered a letter of retirement, which they accepted. Harrison left his post that day, using sick leave to reach his twenty-five year retirement mark several months later. The City extended Harrison's sick leave by several weeks so he could retire in July 2002 with twenty-five years service. Upon Harrison's abrupt retirement, Wittwer stated in the local newspaper that Harrison had "served the city well," and had been a good officer and an "asset to the city," and, later, that Wittwer had no basis to say there was any wrongdoing on Harrison's part.

Before Harrison left the building on May 2, 2002, he e-mailed to a large number of people, including Kohler, an old photograph of Kohler in uniform that had previously hung in the hallway at the police station and that Kohler had informed Harrison she did not like.

BCI initiated an investigation, the results of which Kohler sought out, and which indicated that Harrison had secretly viewed pornography on his office computer and had once photographed himself masturbating in the women's locker room when no women were present in the building. As part of the investigation, BCI asked Kohler to view several photographs of women sitting on toilets to determine whether any were of her or her daughter, who had visited her at the police department. None were.

After the May 2, 2002 events and the initiation of the BCI investigation, Kohler had dreams involving Harrison chasing her. She saw a psychologist in July of 2002, whom she still sees intermittently, and was prescribed Lorzepam for stress and anxiety in September of 2002. She now occasionally takes Benadryl to help her sleep. Kohler testified that throughout the incidents and investigation, she has been able to continue doing her job. She wrote on her July 29, 2003 performance review "I love my job. Thanks for everything." (Doc. No. 41, p. 311).

Kohler filed a charge of discrimination with the EEOC on August 20, 2003. She received a right-to-sue letter on January 11, 2004, and filed this lawsuit on March 23, 2004. Kohler's Amended Complaint sets forth eight counts: Count One, a claim of hostile-environment sexual harassment in violation of the equal protection clause, brought under 42 U.S.C. § 1983; Count Two, a similar claim brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq.; Count Three, a claim that Harrison invaded her privacy in violation of the substantive due process clause, brought under § 1983; Count Four, a claim that Defendants violated her rights under the Family and Medical Leave Act for an absence in July of 2003; Count Five, a sexual harassment claim brought under Ohio Revised Code § 4112.02; Count Six, an Ohio common-law claim for intentional infliction of emotional distress; Count Seven, an Ohio common-law claim for invasion of privacy; and Count Eight, an Ohio common-law claim for negligent supervision and retention. All claims except the Title VII claim, which Kohler asserts against the City only, and Count Eight, against all Defendants save Harrison, are brought against all Defendants.

DISCUSSION

Defendants have moved for summary judgment on all of Kohler's claims.

A. Summary Judgment Standard

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The moving party bears the initial responsibility of "informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The movant may meet this burden by demonstrating the absence of evidence supporting one or more essential elements of the non-movant's claim. Id. at 323-25, 106 S.Ct. 2548. Once the movant meets this burden, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir.2000). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

"In considering a motion for summary judgment, the Court must view the facts and draw all reasonable inferences therefrom in a light most favorable to the nonmoving party." Williams v. Belknap, 154 F.Supp.2d 1069, 1071 (E.D.Mich.2001) (citing 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987)). However, "`at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter,'" Wiley v. U.S., 20 F.3d 222, 227 (6th Cir.1994) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505); therefore...