Phyllis Delaney, and Karen Watts, and Brenda Lackey, and Marlene Scheidt v. Skyline Lodge, Inc.
| Decision Date | 18 May 1994 |
| Docket Number | C-920924,94-LW-1619 |
| Parties | PHYLLIS DELANEY, and KAREN WATTS, and BRENDA LACKEY, and MARLENE SCHEIDT, Plaintiffs-Appellees, v. SKYLINE LODGE, INC., Defendant-Appellant. APPEAL |
| Court | Ohio Court of Appeals |
TRIAL NOS. A-9104470, A-9105315
Civil Appeal From Hamilton County Court of Common Pleas
Tobias Kraus & Torchia and Willard L. Harvey, Esq., No. 0046863, 911 Mercantile Library Building, 414 Walnut Street, Cincinnati Ohio 45202, for Plaintiffs-Appellees,
John J. Finnigan, Jr., Esq., No. 0018689, 1200 Gwynne Building, 602 Main, Cincinnati, Ohio 45202, for Defendant-Appellant.
DECISION
This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, the transcript of the proceedings, the assignments of error, and the briefs and arguments of counsel.
This case arose from the sexual harassment of the four plaintiffs-appellees, Phyllis Delaney, Karen Watts, Brenda Lackey, and Marlene Scheidt, waitresses for defendant-appellant, Skyline Lodge, Inc., by Peter Boucher, a manager of Edward's, a restaurant owned by appellant.
The appellees claim that in 1990, Boucher began telling offensive jokes and making remarks of a sexual nature in their presence. Boucher told the jokes in the public and work areas of the restaurant. Boucher made off-color remarks in front of customers while placing his arm around the appellees and drawing them close to him. He referred to the female waitresses as "cunts" and "bitches." He made disparaging, unwelcome remarks about Delaney's breasts in public. He told Scheidt that she could go home early and "give her husband some," that he bet she got "laid" last night and that he presumed she was good in bed.
Despite appellees' entreaties, Boucher did not stop his offensive remarks and conduct. On November 15, 1990, appellees complained to Gary Bradford, appellant's operations manager, raising concerns over the abusive sexual harassment by Boucher.
Bradford spoke to Boucher. He informed Boucher not to tell dirty jokes to anyone who might be offended by them. Five days later, Bradford told appellees their allegations were untrue and to drop their allegations if they wished to remain employed. Bradford fired Delaney the same day.
Boucher continued to tell sexually explicit jokes in appellees' presence, though not directly to them. He lowered his pants while staring directly at Scheidt. Moreover, two of the appellees were threatened by Boucher. He declared that he had a gun in his car and would not hesitate to use it "if anybody screws me and gets in my way." Appellees complained to appellant's controller that Boucher was a pervert from "A to Z."
By mid-December 1990, all the appellees either had been fired or had left appellant's employ.
In response to these incidents, the four appellees brought this action against appellant for firing them in violation of public policy, for sexual harassment in violation of R.C. Chapter 4112, and for defamation.
On September 9, 1992, the jury answered special interrogato-ries and rendered a verdict in favor of appellant on all the wrongful-discharge claims, except as to appellee Delaney. The jury also found in appellant's favor on all the defamation claims, returned a verdict for all the appellees on their sexual-harassment claims, and awarded damages for sexual harassment.
The trial court then entered judgment for the appellees including compensatory damages for lost pay and emotional distress in the total amount of $82,000.[1] The court also awarded punitive damages in the amount of $126,000.[2] This timely appeal followed the trial court's denial of appellant's motion for judgment notwithstanding the verdict or, in the alternative, for remittitur or new trial.
In three assignments of error, appellant questions the judgments against it on the claims of sexual harassment. Appellant first asserts that the trial court erred by denying summary judgment in its favor on appellee Watts's claim of sexual harass-ment in violation of R.C. 4112.02. Appellant contends that, under the standard for summary judgment in sexual-harassment cases, identified in Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, 492-493, 575 N.E.2d 428, 433-434, there is no genuine issue of material fact as to whether Boucher's sexual harassment continued after appellant received notice of Boucher's "past history of sexually harassing behavior," on or about November 15, 1990. Nonetheless, appellant claims, the trial court erroneously denied its motion for summary judgment without elaboration.
Summary judgment is appropriate where, with the evidence construed most strongly in favor of the party against whom the motion is directed, no genuine issue of material fact remains to be litigated which could establish the existence of an element essential to the non-moving party's claim or defense. Celotex v. Catrett (1986), 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (); Civ.R. 56.
In Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, the Supreme Court provided guidance for a determination of which facts are material in a given case, stating that:
The substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.
As an initial matter, we must identify the proper governing substantive law. Only then can we know which, if any, factual disputes are material.
It is uncontroverted that appellees' claims for sexual harassment were brought pursuant to R.C. Chapter 4112. In Kerans, the plaintiffs' claims were not. There, the supreme court, based upon strong public-policy grounds, recognized a common-law right to sue an employer for sexual harassment. Kerans, 61 Ohio St.3d at 495, 575 N.E.2d at 455. Under R.C. Chapter 4112, however, harass-ment on the basis of sex is statutorily proscribed.[3] R.C. 4112.02(A) states:
To determine the essential elements of a claim of sexual harassment pursuant to R.C. 4112.02(A), we look to the statute itself, to the administrative gloss,[4] and to the federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code. Little Forest Medical Ctr. v. Ohio Civil Rights Comm. (1991), 61 Ohio St.3d 607, 609-10, 575 N.E.2d 1164, 1167, certiorari denied (1992), ___ U.S. ___, 112 S.Ct. 1263, citing Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St.2d 192, 421 N.E.2d 128 (); Meritor Sav. Bank, FSB v. Vinson (1986), 477 U.S. 57, 106 S.Ct. 2399.[5]
Therefore, we adopt the following as the elements of a claim, brought under R.C. Chapter 4112, against an employer for "hostile work environment" sexual harassment: (1) the employee was a member of the protected class; (2) the employee was subjected to unwelcome harassment; (3) the harassment complained of was based upon sex; (4) the harassment had the purpose or effect of unreasonably interfering with the employee's work performance or creating an intimidating, hostile, or offensive work environment; and (5) the existence of respondeat superior liability. Harris v. Forklift System, Inc. (1993), __ U.S. ___, 114 S.Ct. 367; Rabidue v. Osceala Refining Co. (C.A.6, 1986), 805 F.2d 611, certiorari denied (1987), 481 U.S. 1041, 107 S.Ct. 1983. Under the doctrine of respondeat superior, an employer is liable for sexual harassment by a supervisor if the employer knew or should have known of its occurrence, and failed to take remedial action. See Scandinavian Health Spa, Inc. v. Ohio Civil Rights Comm.
In considering appellant's assignment of error, then, this court must determine if there remains a genuine issue of material fact as to whether appellee Watts was subjected to continued sexual harassment in the form of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct after she complained to appellant.
Our review of the evidentiary materials, available pursuant to Civ.R. 56(C), with the evidence construed most strongly in favor of the non-moving party, reveals that genuine issues of material fact remain as to whether sexual harassment continued after November 15, 1990, in light of the evidence that Boucher continued to tell sexually based jokes and dropped his pants while boasting of his genital size. See Davis v. Black (1991), 70 Ohio App.3d 359, 366, 591 N.E.2d 11, 16 (). Accordingly, appellant's first assignment of error is not well taken.
In its fourth assignment of error, appellant claims the trial court erred in overruling its motion for directed verdict on all the appellees' claims of sexual harassment. Appellant contends, as it did in its first assignment of error, that "no sexual harassment occurred after it was put on notice of the complaints against Boucher and had reprimanded him.
A directed verdict should only be granted where the trial court, without weighing the...
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