Last month, the Ohio Court of Appeals in Montgomery County
affirmed the dismissal of sexual harassment and retaliation claims in a lengthy
opinion. Diller
v. Miami Valley Hospital, 2017-Ohio-9051 (12-15-17). The Court concluded that while the
plaintiff had established that her manager’s conduct was unwelcome, she had not
proven that it was based on her sex or was severe or pervasive. Isolated offensive utterances that are not
threatening, frequent or intimidating and do not interfere with the plaintiff’s
work performance are legally insufficient to establish a hostile work environment claim.
Finally, her self-directed investigation
into her boss wasting time was not protected activity because it was neither
discriminatory nor unlawful. Similarly,
complaining about his pompous behavior was not protected by sexual
discrimination laws. Therefore,
terminating her in connection with her conduct during her self-directed
investigation was not unlawful.
According to the Court’s opinion, the plaintiff security
officer alleged in her complaint that the “true” reason she had been fired was
in retaliation for complaining about sexual harassment from her new manager. Among
other things, the plaintiff had alleged that her boss had made comments about
pulling up her “big girl panties,” raised his eyebrows when greeting her, had
once commented while she was helping him with his computer that there is always
a good woman behind a good man, and had been demeaning to her and her male
co-workers. In addition to his general
disrespectful comments to the entire department, his comment about good women
being behind good men had made her uncomfortable. While she had initially made the “panties”
comment, she did not expect him to repeat it back to her so often afterwards
and eventually told him that it made her uncomfortable. She had
been directed by HR to report back if there were any other problems. However, the court found that she agreed
that her boss was demeaning to everyone, not just women or her. Further, the “panties” comment was merely him
repeating her description of her need to grow up. Finally, the “googly” eyes was too ambiguous
to construe as sexual.
The employer pointed out that she had been fired after
moving security cameras so that she could spy on her boss and that this had
placed staff at risk. When she was
initially confronted and again in her deposition, she denied that she had been
investigating possible sexual harassment by her boss, but then then changed her
explanation in her complaint after being fired. She also claimed that she had received an anonymous
message – that she did not report to anyone else -- that her boss was spending too much time at
the lobby information desk, so she moved the cameras from the lobby entrance to
focus instead on the desk even though the employer had trained the cameras on
the entrance to protect staff from vagrants in the area. Much
of the opinion is spent on the discrepancies between the different versions of
her allegations. At the end of the day,
however, the Court found that her allegations of sexual harassment were not
sufficiently severe or pervasive to be actionable.
In evaluating hostile work environment claims, “the severity
and pervasiveness are to be looked at together so that ‘deficiencies in the strength
of one factor may be made up by the strength in the other.’ . . . [T]he harassing conduct ‘must be severe or
pervasive enough to create both an objectively hostile or abusive work
environment – one that a reasonable person would find hostile or abusive – and
a subjectively hostile work environment – one that the victim perceived to be
hostile or abusive.’”
As for her retaliation claim, the plaintiff claimed that she
had frequently moved other cameras as part of her job duties and not been fired
or even counselled. The opinion does not
dispute this. Nonetheless, she also
admitted to providing incorrect information to Human Resources during its
subsequent investigation about her role in moving the cameras and why it was
done. The court concluded that the
plaintiff had not engaged in any protected conduct because the issues that she
had reported to Human Resources had not related to sexual harassment, but, as
discussed, involved her manager’s generally “pompous” attitude and the one “good
woman” comment. Further, her conduct in
investigating the anonymous complaint about her boss spending too much time at the
information desk was not protected either since she had specifically denied
that she was investigating possible sexual harassment. The court noted that the employer had argued
that a “supervisor’s wasting time at work is neither discriminatory nor
unlawful.”
NOTICE: This summary is designed merely to inform and alert you
of recent legal developments. It does not constitute legal advice and does not
apply to any particular situation because different facts could lead to
different results. Information here can be changed or amended without
notice. Readers should not act upon this information without legal advice. If
you have any questions about anything you have read, you should consult with or
retain an employment attorney.
