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 decision[]maker’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.
