Thursday, February 8, 2018
Ohio Appeals Court Rejects Sexual Harassment and Retaliation Claims Based on Speculation and Gender-Neutral Policy
Last week, the Ohio Court of Appeals in Summit County affirmed an employer’s summary judgment on a former employee’s claims for sexual harassment and retaliation. Messer v. Summa Health Sys., 2018-Ohio-372. In particular, the plaintiff claimed that she had been subjected to a hostile work environment when the employer expected her (and all other radiology employees) to change in a unisex locker room (or the locker room bathroom) and that she was terminated after only one month of employment for objecting. The court found that she could not identify how she was treated differently or harassed on account of her sex when the policy was gender neutral and the locker room and bathroom could be locked. Further, it refused to impute knowledge of her discussion about the locker room issue with one supervisor to the manager who decided to terminate her for poor performance, finding the plaintiff’s retaliation argument to be nothing more than speculation.
According to the Court’s opinion, both the locker room and bathroom could be locked. The plaintiff did not comply with the policy and either wore her scrubs home or changed in a public restroom. The plaintiff claimed to have suffered two incidents in the locker room: One when she inadvertently walked in on a male who was changing and once when someone almost walked in on her (although she never knew the gender of that person). Although she claimed to have reported these incidents to the same supervisor and explained why she was uncomfortable, she never submitted a written complaint about them. After being counselled about her job performance and gaps of knowledge, she was then counseled by her supervisor about not complying with the policy requiring her to change in the locker room.
On the day before her termination, she requested to leave early and was asked whether she had completed her completed online courses. She responded that she only had two courses left to complete. In fact, she still had five left to complete because she had not completed the quizzes for three of the courses (even though she claimed that she had listened to the lectures for those three modules). She completed the quizzes the next morning. That same day, a patient suffered a hematoma, which her manager indicated was the plaintiff’s fault while the plaintiff indicated it was because she had not been provided with the proper equipment. Finally, there was a discrepancy with her resume because the plaintiff omitted a relevant medical employer, while including non-medical positions. While she mentioned in her interview that she had worked a temporary job, she did not disclose the employer’s name. When confronted, she indicated that she did not think that the position had been relevant (even though she had listed prior accounting jobs). At the end of her shift, the manager terminated her employment.
To prevail on a sexual harassment or discrimination claim, “[a] female plaintiff must show that she was treated differently or with greater hostility because she is a woman.” While the plaintiff argued that the mandatory use of a unisex locker room constituted a hostile work environment to women because women have a greater expectation of privacy, the court disagreed. For one thing, the unisex locker room and its bathroom could be locked when privacy was desired. The plaintiff also could not cite any precedent where gender-neutral rules were found to be discriminatory. Accordingly, the plaintiff could not show that she was treated differently on account of her gender.
As for her retaliation claim, ““[t]he decisionmaker’s knowledge of the protected activity is an essential element of the prima facie case of unlawful retaliation.” . . . An employer cannot make a retaliatory business decision when it is not aware of the protected activity at the time the decision was made.” While a plaintiff can prove the requisite knowledge with circumstantial evidence, such “evidence can support a reasonable inference if it is comprised of ‘specific facts’ and not merely ‘conspiratorial theories,’ ‘flights of fancy, speculations, hunches, intuitions, or rumors.’” In this case, while the plaintiff contended that she had told her supervisor about her locker room objections at least twice, she never asserted that she had ever shared those concerns with the manager who made the decision to terminate her. Further, she proffered no evidence that this manager had ever learned of her concerns elsewhere, although she had been told about the plaintiff’s violation of the policy. Finally, even though the plaintiff told the manager in her termination meeting that she was not comfortable changing in the unisex locker room, she never explained why so that her concern might have been arguably protected conduct.
The court refused to consider the cat’s paw theory which was asserted for the first time on appeal.
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.