Wholf v. Tremco Inc.

• Citation: 26 N.E.3d 902
• Decision Date: 22 January 2015
• Docket Number: No. 100771.,100771.
• Parties: William WHOLF, Plaintiff–Appellant v. TREMCO INCORPORATED, et al., Defendants–Appellees.
• Court: United States Court of Appeals (Ohio)

26 N.E.3d 902

William WHOLF, Plaintiff–Appellant

v.TREMCO INCORPORATED, et al., Defendants–Appellees.

No. 100771.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 22, 2015.

Matthew D. Greenwell, Charles V. Longo, Charles V. Longo Co., L.P.A., Beachwood, OH, for appellant.

Sue M. Douglas, Amy Ryder Wentz, Robert M. Wolff, Littler Mendelson, P.C., Cleveland, OH, for appellees.

Before: E.T. GALLAGHER, J., STEWART, J., and CELEBREZZE, A.J.

Opinion

EILEEN T. GALLAGHER

, J.

{¶ 1} Plaintiff-appellant, William Wholf (“Wholf”), appeals an order granting summary judgment in favor of defendants-appellees, Tremco Incorporated (“Tremco”), Edward Nowak, and Timothy Sworney (collectively “appellees”). We find merit to the appeal and reverse the trial court's judgment.

{¶ 2} Tremco manufactures and sells roofing installation and weatherproofing services for buildings such as schools, hospitals, and manufacturing facilities. As part of its warranty program, Tremco provides on-site roofing inspections and preventative maintenance services, which are supported through an Online Information System (“OLI”). Wholf worked in Tremco's OLI department from January 3, 2006, until his resignation on May 20, 2011.

{¶ 3} Following his resignation, Wholf filed a complaint against Tremco in which he asserted two claims. In Count 1, a retaliation claim brought pursuant to R.C. 4112.02(I)

, Wholf alleged that (1) he engaged in a protected activity when he reported sexual harassment to company managers, (2) appellees were aware of the protected activity, (3) appellees took adverse actions against him, and (4) the protected activity was the cause of Tremco's adverse actions against him. Count 2 alleged intentional infliction of emotional distress.

{¶ 4} Appellees filed a joint motion for summary judgment on Wholf's claims. The facts, as set forth in affidavits and deposition testimony, are as follows: Tremco hired Wholf in 2006 as its primary OLI trainer under the title OLI Sales/Customer Support Manager. Employees in the OLI department receive roof inspection reports from field personnel and enter the information into online databases that customers may access to review detailed roofing inspection data and repair recommendations. OLI's objective is to increase the number of customers and sales representatives who understand and use the OLI. Wholf was primarily responsible for training customers and Tremco sales representatives on how to use OLI so that customers could understand and use the system. Wholf was also supposed to identify and contact customers and sales representatives who would benefit from OLI and offer them training.

{¶ 5} Wholf reported to the Inspection and Maintenance Service Manager. In 2010, Tremco hired Edward Nowak (“Nowak”) as the new Inspection and Maintenance Services Manager. From 2006 through 2010, Wholf received positive performance evaluations from his previous and current supervisors.

{¶ 6} Sometime after Nowak joined Tremco, some female employees complained that Nowak made sexually suggestive comments to them and stared inappropriately at their breasts. One of the alleged victims was Melissa Wholf (“Melissa”), Wholf's wife, who worked part time performing data entry. At a Tremco-sponsored luncheon on November 4, 2009, Nowak stared at Melissa's breasts for an extended period of time. Employees at the table commented on Nowak's behavior, but he did not seem to hear them and continued staring. Melissa felt uncomfortable and raised a menu to hide her breasts in an effort to end the situation.

{¶ 7} Tremco's non-harassment policy defines “harassment” as “any unwelcome or unsolicited verbal, visual, written, sexual or physical conduct that creates or contributes to a hostile or offensive work environment.” “Leering” is included as an example of harassment under the policy. The non-harassment policy provides that “if an employee observes or becomes aware of actual or perceived harassment of another employee, then the observing employee should immediately report the matter to a supervisor, manager, or officer (up to and including the President of the Company).” When harassment is reported, the policy provides that “Tremco will investigate all complaints promptly, thoroughly and fairly,” and “[n]o retaliation of any kind * * * will be taken against an employee for making a complaint.”

{¶ 8} On February 9, 2010, Nowak met with Wholf to discuss his inappropriate use of time spent fixing coworkers' computers instead of completing his assigned work. During this meeting, Wholf confronted Nowak about his conduct, which he believed violated Tremco's non-harassment policy, and secretly recorded the conversation. According to Wholf, Nowak ignored the allegations and continued to make inappropriate comments and leer at women's breasts. In March 2010, Wholf reported Nowak's conduct to a Tremco vice president, who reported the allegations to James Tierney (“Tierney”), Tremco's former General Counsel and Vice President of Human Resources. Meanwhile, Lisa Garcia (“Garcia”), another supervisor in the OLI department, reported harassment allegations from two other women to Tremco's Human Resources Manager, Karen Halkovics (“Halkovics”). Tierney informed Halkovics of Wholf's complaint at about the same time. As a result, the human resources department led an internal investigation into the complaint.

{¶ 9} Halkovics interviewed the alleged victims; Melissa, Garcia, and Val Giampietro to hear their versions of the facts. She also met with Maureen Greeves, another Tremco manager who worked with Nowak, to see if she had any similar experiences, but she had not. Halkovics met with Nowak, informed him of the complaints and advised him that the reported behavior was unacceptable. Halkovics also counseled Nowak on Tremco's non-harassment policy. There is no evidence that any more harassment occurred after Halkovics's investigation and meeting with Nowak.

{¶ 10} Wholf was nevertheless frustrated by what he believed was an inadequate investigation and reported the harassment to the “NETWORK” in June 2010. According to the non-harassment policy, the NETWORK is “an independent and autonomous service devoted to collecting and reporting employee complaints regarding practices and behaviors that may be unethical or in violation of Company policies.” In the NETWORK complaint, Wholf stated that “Nowak has been making inappropriate and unwelcomed sexual comments” and “has also been caught starring [sic] at female employee's breasts.” He further complained that the lack of investigation may have been impacted by Halkovics's personal relationship with Jim Solether (“Solether”).¹ A week later, Wholf sent Randall Korach (“Korach”), then President of Tremco, an anonymous email once again reporting Nowak's conduct and the ineffectual investigation.

{¶ 11} In response to the NETWORK complaint and the anonymous emails, Tierney met with Korach, and spoke with Halkovics and Solether about their alleged affair. Tierney also retained outside counsel to review Halkovics's previous investigation. Following the review of the investigation, Tierney completed a report and sent it to RPM International Inc., Tremco's parent company, as required practice when a NETWORK complaint is made.

{¶ 12} Wholf testified at deposition that after he complained about Nowak's harassing behavior, he “felt a backlash” from Nowak beginning in March or April 2010. Wholf asserted that Nowak reassigned some of his projects to other employees and excluded him from meetings. Consequently, Wholf informed Todd Sworney (“Sworney”), Tremco's Drafting Supervisor, that he believed Nowak was retaliating against him for reporting his harassing behavior even though Nowak gave Wholf a positive performance evaluation in late May 2010.

{¶ 13} In November 2010, Solether reorganized the management structure of the company. The OLI production department was reorganized such that Sworney became the supervisor of quality control and training personnel, and Garcia became the supervisor of data entry personnel. Nowak informed Wholf that Sworney would be his new supervisor, and removed some of Wholf's core responsibilities and reassigned them to other employees. Prior to this change, Wholf and Sworney were equally ranked in management. As part of the reorganization, Wholf's former job title, OLI Sales–Customer Support Manager, was changed to OLI Sales–Customer Coordinator. Solether testified that at the time of the reorganization, he had no knowledge of any harassment complaints lodged against Nowak.

{¶ 14} On November 5, 2010, Sworney instructed Wholf that, in addition to his regular duties, he was now required to keep a detailed daily time sheet to account for his time throughout the day. Sworney's goal was for Wholf to generate enough outside interest in OLI training that he could train on a full-time basis. However, Wholf did not meet Sworney's production goals and did not increase his training workload. On November 11, 2010, Nowak informed Wholf that due to budget cuts, Tremco would no longer reimburse his personal cell phone, which he had used for work-related business.

{¶ 15} In December 2010, Sworney instructed Wholf that he must devote half of his workday to data entry. Two weeks later, Sworney placed Wholf on a “Performance Improvement Plan” (“PIP”), because he was not meeting his daily data entry quotas. The PIP subjected Wholf to more supervision by Sworney and Halkovics. In response, Wholf created an “action plan” to address concerns raised in the PIP. In the plan, Wholf stated that Sworney was motivated to issue the PIP by discrimination, retaliation, and workplace harassment. On January 27, 2011, Tremco lowered Wholf's job grade from level 10 to level 9. Although his salary was not affected, his bonus eligibility was reduced by the potential amount of $1,300.

{¶ 16} Wholf complained to Tierney that he believed Sworney was retaliating against him. Tierney questioned Sworney about Wholf's retaliation claims...