[Cite as Harter v. Chillicothe Long-Term Care, Inc.,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

SUSAN L. HARTER, et al., : : Plaintiffs-Appellants, : Case No. 11CA3277 : vs. : : Released: May 29, 2012 CHILLICOTHE LONG-TERM CARE, : INC., et al., : DECISION AND JUDGMENT : ENTRY Defendants-Appellees. : APPEARANCES:

James R. Kingsley, Kingsley Law Office, Circleville, Ohio, for Appellants.

Anthony J. Caruso and Rebecca L. Cull, Kohnen & Patton LLP, Cincinnati, Ohio, for Appellees.

McFarland, J.:

{¶1} Appellants appeal the decision of the Ross County Court of Common

Pleas granting summary judgment in Appellees’ favor. Specifically, Appellants

argue the trial court erred by finding for Appellees on the claims of sexual

harassment from a hostile work environment and intentional infliction of emotional

distress. Having reviewed the record, we find the alleged harassment was not

severe and pervasive. Nor did Appellants demonstrate they suffered severe

emotional distress. Accordingly, the trial court correctly entered summary

judgment on these claims in Appellees’ favor and we affirm its judgment. Ross App. No. 11CA3277 2

FACTS

{¶2} Nursing Care Management Group (“NCMG”) owned Chillicothe Long-

Term Care, Inc., which did business as Westmoreland Place (“Westmoreland”),

which was a nursing home facility. David Dixon (“Dixon”) was the administrator

for Westmoreland. During Dixon’s tenure Westmoreland hired Appellants Susan

Harter (“Harter”), Pamela Mullins (“Mullins”), and Diana French (“French”).

{¶3} Throughout Appellants’ employ, they heard Dixon, either directly or

indirectly through hearsay and rumors, make comments they believed were

inappropriate and personally offensive. Appellants allege, in the aggregate:

 Dixon referred to an employee as “hot”;

 Dixon referred to an employee as a “fat bitch”;

 Dixon referred to a male employee as a “faggot”;

 Dixon discussed the television show Dr. 90210, which focuses on a

plastic surgeon who routinely performs breast augmentations, and

Dixon wished he was that surgeon;

 Dixon and others discussed sexual encounters with their spouses;

 Dixon discussed breast feeding;

 Dixon spoke of dating a girl in high school who was “easy”;

 Dixon enjoyed hearing about a female resident’s disfigured genitalia; Ross App. No. 11CA3277 3

 Dixon recounted a story where a female stripper placed her crotch in

his face;

 Dixon discussed his wife giving him fellatio on specific days of the

year;

 Dixon believed prostitution should be legal;

 Dixon referred to an employee as “eye candy”;

 Dixon enjoyed hearing a story about a female employee “messing

around” with her husband on the way to or from church;

 Dixon stated women use sex to control men;

 Dixon discussed an employee’s thong underwear;

 Dixon watched women walk down the hallway;

 Dixon commented on an employee’s breasts after she leaned over his

desk;

 Dixon asked Harter whether she was having an affair with a co-

worker;

 Dixon stated breast cancer was not a problem, but an opportunity for

women to receive breast augmentation;

 Dixon had inquired about an employee’s breast tattoo;

 When confronted with a rumor that Dixon was having an affair with

an employee, Dixon stated he would be proud to have done so. Ross App. No. 11CA3277 4

Dixon denied having made many of the comments, admitted to having made some

of the comments, and disputed the context and Appellants’ portrayal of others.

{¶4} In addition to the comments Dixon allegedly made, Appellants took

issue with Dixon’s alleged fondness for Megan Cline (“Cline”), an employee

Dixon hired to market Westmoreland and obtain new clients. Cline was admittedly

younger than Appellants and many other staff members, and by all accounts was

attractive. Although Cline had a bachelor’s degree and Appellants only had a high

school education, they were upset Cline received a higher wage. Although Cline

was hired to market the facility to potential residents, Appellants were upset Cline

received an office and new furniture and they believed Cline received preferential

treatment because of her appearance, not her position.

{¶5} At no point in time did Appellants complain about any of Dixon’s

behavior. Even when participating in a conversation where an inappropriate

comment allegedly occurred, Appellants did not make it known they were

offended or such a comment was unwelcome. Even though the corporate

compliance manual issued by NCMG contained a grievance procedure, which

included a mechanism to bypass an offending supervisor and report inappropriate

conduct anonymously and confidentially, Appellants never once complained or

used the bypass mechanism. Ross App. No. 11CA3277 5

{¶6} Eventually Appellants left Westmoreland’s employ. After their

separation, Appellants met with counsel and filed a complaint alleging 1) sexual

harassment from a hostile work environment; 2) age discrimination; 3) breach of

employment contract/promissory estoppel; 4) intentional infliction of emotional

distress; 5) defamation/slander; and 6) ratification. Appellees filed a motion for

summary judgment, which the trial court granted in its entirety.

{¶7} The trial court found there were no genuine issues of material fact and

Appellees were entitled to judgment as matter of law. The court found the

comments Dixon allegedly made were not severe or pervasive enough to affect the

terms and conditions of Appellants’ employment. The courts also found many of

the alleged comments, while rude and offensive, were not made because of

Appellants’ sex and thus were not discriminatory.

{¶8} Appellants’ age discrimination claims were time-barred. Regarding

promissory estoppel, Appellants failed to demonstrate a clear an unambiguous

promise of continued employment or any detrimental reliance thereon.

{¶9} On the claim for intentional infliction of emotional distress, the court

found the alleged conduct as not extreme and outrageous as a matter of law and

Dixon did not intend to cause serious emotional distress by his crude comments.

Turning to defamation, Harter and Mullins’ claims were time-barred. While the Ross App. No. 11CA3277 6

court did not find French’s claim was time-barred, it held that she failed to present

evidence of a false statement by Dixon, which was fatal to her claim.

{¶10} As Appellants did not respond to Appellee’s motion on the claim of

ratification, the court found for Appellees on that claim. Finally, the court found

punitive damages were inappropriate since it had entered judgment for Appellees

on all claims.

{¶11} Appellants now appeal the trial court’s entry of summary judgment,

though only with respect to their claims of a hostile work environment and

intentional infliction of emotional distress.

ASSIGNMENTS OF ERROR

I. DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT

GRANTED DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

DENYING PLAINTIFFS’ HOSTILE WORK ENVIRONMENT CLAIM?

II. DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN

IT DISMISSED THE INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS CLAIM?

Standard of Review

{¶12} “Appellate courts review summary judgments de novo.” Wells Fargo

v. Phillabaum, 4th Dist. No. 10CA10,

, citing Broadnax v.

Greene Credit Service,

,

(2d Dist. 1997) Ross App. No. 11CA3277 7

and Coventry Twp. v. Ecker,

,

(9th Dist.

1995). “In other words, we afford no deference whatsoever to a trial court’s

decision, and, instead, conduct our own independent review to determine if

summary judgment is appropriate.”

, citing Woods v. Dutta,

,

(4th Dist. 1997) and Phillips v.

Rayburn,

,

(4th Dist. 1996).

{¶13} “Summary judgment is appropriate only when (1) there is no genuine

issue of material fact, (2) reasonable minds can come to but one conclusion when

viewing the evidence in favor of the nonmoving party, and that conclusion is

adverse to the nonmoving party, and (3) the moving party is entitled to judgment as

a matter of law.” Greene v. Seal Twp. Bd. of Trustees, 4th Dist. No. 10CA812,

, citing Doe v. Shaffer,

,

(2000), Bostic v. Connor,

,

(1988),

and Civ.R. 56(C).

{¶14} “The party moving for summary judgment has the initial burden of

showing that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law.”

, citing Dresher v. Burt,

,

(1996). “The moving party must inform the trial

court of the basis of the motion and must identify those portions of the record that

demonstrate the absence of a material fact.”

citing

. When Ross App. No. 11CA3277 8

seeking to have the nonmoving party’s claims dismissed, “the moving party must

specifically refer to the ‘pleadings, depositions, answers to interrogatories, * * *

written stipulations of fact, if any,’ that affirmatively demonstrate that the

nonmoving party has no evidence to support [its] claims.”

citing Dresher and

Civ.R. 56(C). “If the moving party satisfies its initial burden, the nonmoving party

then has the reciprocal burden outlined in Civ. R. 56(E) to set forth specific facts

showing that there is a genuine issue for trial. If the nonmovant does not satisfy

this evidentiary burden and the movant is entitled to judgment as a matter of law,

the court should enter a summary judgment accordingly.”

citing Kulch v.

Structural Fibers, Inc.,

,

(1997), citing

. “Mere speculation and unsupported conclusory assertions are not

sufficient.” Hansen v. Wal-Mart Stores, Inc., 4th Dist. No. 07CA2990, 2008-Ohio-

2477, at ¶ 8, citing Boulton v. Vadakin, 4th Dist. No. 07CA26,

.

I. Sexual Harassment, Hostile Work Environment

{¶15} In their first assignment of error, Appellants claim the trial court erred

when it entered summary judgment in Appellees’ favor on the claim of sexual

harassment from a hostile work environment. We disagree. Ross App. No. 11CA3277 9

A. Legal Analysis

{¶16} R.C. 4112.02(A) prohibits discrimination in the workplace based upon

a person’s sex. The Supreme Court of Ohio has determined federal case law

interpreting Title VII of the Civil Rights Act of 1964 is generally applicable to

cases involving alleged violations of R.C. Chapter 4112. Hampel v. Food

Ingredients Specialties, Inc.,

,

(2000). Like

the federal system, the Supreme Court held that a person may prove sexual

harassment by demonstrating a hostile environment, that is “harassment that, while

not affecting economic benefits, has the purpose or effect of creating a hostile or

abusive working environment.”

.

In order to establish a claim of hostile-environment sexual

harassment, the plaintiff must show (1) that the harassment was

unwelcome, (2) that the harassment was based on sex, (3) that the

harassing conduct was sufficiently severe or pervasive to affect the

“terms, conditions, or privileges of employment, or any matter

directly or indirectly related to employment,” and (4) that either (a)

the harassment was committed by a supervisor, or (b) the employer,

through its agents or supervisory personnel, knew or should have

known of the harassment and failed to take immediate and appropriate

corrective action.

. Ross App. No. 11CA3277 10

{¶17} Regarding the second element, “[h]arassment ‘because of sex’ is the

sine qua non for any sexual harassment case.”

. This refers to both

harassment because of the victim’s gender and harassment associated with

“libidinal gratification.” However, “harassment is not automatically discrimination

because of sex merely because the words used have sexual content or

connotations.”

. “Oftentimes, the use of certain vulgar expressions ‘has

no connection with the sexual acts to which they may reference * * * [and] they

are simply expressions of [personal] animosity or juvenile provocation,’ rather than

discrimination based on sex. Thus, [a]lthough explicit sexual content or vulgarity

may often take a factfinder a long way toward concluding that harassing comments

were in fact based on gender, * * * this need not necessarily be the case.” (Citation

omitted.)

{¶18} To be actionable, the harassment must be harassment that would not

have occurred but for the sex of the employee. Edwards v. Dubruiel, 2d Dist. No.

2002-CA-50,

, at ¶ 19. “[N]o matter how severe or pervasive the

conduct, harassment does not constitute a discriminatory practice under R.C.

4112.02(A) unless based on a prohibited classification.” Hampel

,

. For example, harassing and crude conduct that was

directed toward employees as a whole, including both genders, was not based upon

sex and was not actionable. See Godsey-Marshall v. Phillipsburg, 2d Dist. No. Ross App. No. 11CA3277 11

23687,

, at ¶ 13-15 (holding “the harassment was based on

something other than sex.”).

{¶19} Likewise, the issue of whether the alleged harassment was severe or

pervasive is fact-specific. The issue of “‘whether an environment is “hostile” or

“abusive” can be determined only by looking at all the circumstances. These may

include the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.’” Hampel,

,

, quoting Harris v. Forklift Sys., Inc.,

,

,

(1993). The Supreme Court of the United

States explained “‘simple teasing,’ offhand comments, and isolated incidents

(unless extremely serious) will not amount to discriminatory changes in the ‘terms

and conditions of employment.’” (Internal citation omitted.) Faragher v. Boca

Raton,

,

,

(1998). “These

standards for judging hostility are sufficiently demanding to ensure that Title VII

does not become a ‘general civility code.’ * * * Properly applied, they will filter

out complaints attacking ‘the ordinary tribulations of the workplace, such as

sporadic use of abusive language, gender-related jokes, and occasional teasing.’”

Moreover, the Supreme Court has “made it clear that conduct must be extreme

to amount to a change in the terms and conditions of employment.”

See, also, Ross App. No. 11CA3277 12

Ridley v. Federal Express, 8th Dist. No. 82904,

; Jarvis v.

Gertenslager, 9th Dist. Nos. 02CA0047, 02CA0048,

, at ¶ 39-43.

i. French

{¶20} Regarding the alleged hostile work environment, French alleged she

heard Dixon comment that one employee was “hot,” another was a “fat bitch,” and

a male employee was a “faggot.” French also heard Dixon and other employees

discuss a television show and breasts, as well as sexual encounters with their

respective spouses.

{¶21} Here, viewing the evidence in a light most favorable to Appellants and

accepting French’s allegations as true, she failed to demonstrate the comments

were “sufficiently severe or pervasive” to affect French’s employment. French

was employed by Westmoreland for nearly fifteen months (April 12, 2008 to July

8, 2009) and she was only able to recall these five instances of behavior she

believed were inappropriate, making the frequency of the comments very low. The

comments were also not severe; the first three were offhand comments about

persons’ appearances and the latter two were employees engaging in consensual

and welcome discussions of a sexual nature. None of the incidences were

physically threatening or humiliating to the participants and there was no

suggestion that any of the comments interfered with French’s work performance. Ross App. No. 11CA3277 13

Thus, the alleged harassment was not severe or pervasive enough to create a hostile

or abusive work environment and French’s claim fails.

ii. Mullins

{¶22} Mullins recalled more incidences of Dixon’s allegedly inappropriate

behavior, though much of it was secondhand. Mullins heard Dixon discussing

breast milk during a lunch conversation with employees. She also heard Dixon

speak of dating a girl in high school because she was “easy.” Mullins had heard

from other staff members that Dixon enjoyed hearing about a female resident’s

disfigured genitalia; Dixon wanted to be the main character of Dr. 90210 so he

could touch women’s breasts; Dixon had told a story of a female stripper placing

her crotch in his face; Dixon had discussed his wife giving him fellatio on certain

dates; Dixon believed prostitution should be legal; Dixon had referred to Cline as

“eye candy”; and Dixon enjoyed hearing a story from an employee about “messing

around” with her husband on the way to church.

{¶23} Here, like French, Mullins has failed to demonstrate that the alleged

incidences were extreme and severe or pervasive enough to create an abusive or

hostile environment and affect the conditions of her employment. Viewing the

evidence in a light most favorable to Appellants and accepting Mullins’ version of

events as true, there were only nine incidences Mullins recalled in the 18 months

(January 19, 2007 to July 23, 2008) she worked at Westmoreland, making their Ross App. No. 11CA3277 14

frequency low. Though distasteful, none of the comments or conversations was

severe. None was physically threatening or humiliating to Mullins. Finally, none

of the comments unreasonably interfered with Mullins’ work performance. Thus,

the alleged harassment was not severe or pervasive enough to create a hostile or

abusive work environment and Mullins’ claim fails.

iii. Harter

{¶24} Harter’s recollection of events was, by far, the most detailed of the

three appellants. Harter recalled hearing Dixon state, in her presence: prostitution

should be legal; his wife gave him fellatio on certain dates; women used sex to

control men; he wanted to be Dr. 90210 in order to touch women’s breasts; Cline

was “eye candy”; he commented on Jennifer Colbert’s thong underwear; he leered

at women walking down the hallway; he commented on an employee’s breasts

after she left the office; and he questioned Harter about whether she was having an

affair with a maintenance worker. Harter also recalled several comments other

staff members had attributed to Dixon and relayed to her: Dixon had told the story

about a stripper placing her crotch in his face; Dixon believed breast cancer was

not a problem, but an opportunity for women to get breast augmentation; Dixon

had inquired about a female’s employee’s breast tattoo; and when it was implied

Dixon was having an affair with Cline, Dixon stated he would be proud to be

linked to such a rumor. Ross App. No. 11CA3277 15

{¶25} Here, Dixon’s comments were neither severe nor pervasive. Viewing

the evidence in a light most favorable to Appellants and assuming Harter’s

portrayal of events is accurate, this equates to 13 comments over the nearly seven-

and-a-half years Harter worked at Westmoreland (December 11, 2000 to July 2,

2008). Some of the comments occurred in 2000, 2004, and 2006, while others

occurred in 2007 and 2008. Their frequency was very low.1 None of the

comments were severe, with the exception of the one regarding breast cancer.

{¶26} Likewise, none of the incidences were humiliating to Harter, nor were

they physically threatening. Most all of the comments can be categorized as

offensive utterances or lewd conversations with employees. Finally, Harter failed

to demonstrate that Dixon’s comments unreasonably interfered with her work

performance. Thus, the alleged harassment was not severe or pervasive enough to

create a hostile or abusive work environment and Harter’s claim fails.

{¶27} To be clear, Dixon did dispute that he made many of the comments

Appellants attributed to him. Yet viewing the evidence in a light most favorable to

Appellants and assuming their versions of events are true, their claims still fail as a

matter of law because they did not submit evidence of alleged harassment that was

1 Though Appellants’ brief explicitly and implicitly characterizes Dixon’s comments as “repeated,” the evidence demonstrates otherwise. When Appellants responded in their depositions as to when specific comments occurred, they gave specific and finite dates. They did not state such comments occurred daily or with regular frequency. Ross App. No. 11CA3277 16

severe and pervasive to the point of altering the conditions of their work and

creating an abusive or hostile environment.

{¶28} Additionally, many of the comments Dixon allegedly made were not

based upon sex. That is, they were crude and many would find them offensive, but

they would have occurred regardless of the gender of persons around him. While

the comments were sexually explicit and vulgar, they were offensive utterances,

not discriminatory harassment specifically directed at women. R.C. Chapter 4112

is not a “general civility code” and this is not the type of conduct it is intended to

prohibit. Appellees were entitled to judgment as matter of law on Appellants’

claims of sexual harassment from a hostile work environment.

{¶29} Accordingly, we overrule Appellants’ first assignment of error.

II. Intentional Infliction of Emotional Distress

In their second assignment or error, Appellants argue the trial court erred

when it entered summary judgment in Appellee’s favor on Appellants’ claims for

intentional infliction of emotional distress. Appellants simply argue a claim for

intentional infliction of emotional distress can be premised upon sexual

harassment. Appellees counter that Appellants failed to prove nearly every

element necessary to establish a claim for intentional infliction of emotional

distress. We agree with Appellees. Ross App. No. 11CA3277 17

A. Legal Analysis

{¶30} To establish a claim for intentional infliction of emotional distress, a

party must show:

(1) that the defendant either intended to cause emotional distress or

knew or should have known that the actions taken would result in

serious emotional distress; (2) that the defendant’s conduct was so

extreme and outrageous as to go beyond all possible bounds of

decency and was such that it would be considered utterly intolerable

in a civilized community; (3) that the defendant’s actions were the

proximate cause of plaintiff’s psychic injury; and (4) that the mental

distress suffered by plaintiff is serious and of such a nature that no

reasonable person could be expected to endure it. “[I]n order to state

a claim alleging the intentional infliction of emotional distress, the

emotional distress alleged must be serious.” “[S]erious emotional

distress” is “emotional injury which is both severe and debilitating.”

“[S]erious emotional distress may be found where a reasonable

person, normally constituted, would be unable to cope adequately

with the mental distress engendered by the circumstances of the case.”

(Citations omitted). Smith v. Redecker, 4th Dist. No. 08CA33, 2010-

Ohio-505, at ¶ 60. Ross App. No. 11CA3277 18

{¶31} While sexual harassment in the workplace may form the basis of a

claim for intentional infliction of emotional distress, Johnson v. Cox, 4th Dist. No.

96CA622,

, *4 (Mar. 28, 1997), this does not negate Appellants’

burden of proving the elements of intentional infliction of emotional distress.

{¶32} Here, Appellants’ claim fails for two reasons. First, because

Appellants couched their claims for intentional infliction of emotional distress as

arising from the alleged sexual harassment, which failed as a matter of law, their

claims for intentional infliction of emotional distress necessarily fail, too. Without

demonstrating the sexual harassment, Appellants failed to show any extreme and

outrageous conduct.

{¶33} Second, Appellants failed to prove any of them suffered serious

emotional harm. French had not seen a psychologist or therapist for any emotional

distress related to Westmoreland. (French Depo. at 20.) Nor had Mullins (Mullins

Depo. at 125.) or Harter (Harter Depo. at 186.). Appellants offered no evidence

regarding the seriousness of their alleged emotional distress. None of them

claimed their emotional distress was severe or debilitating or that a reasonable

person, normally constituted, would be unable to cope adequately with it.

{¶34} Thus, Appellants claims for intentional infliction of emotional distress

fail and Appellees were entitled to judgment as a matter of law on these claims. As Ross App. No. 11CA3277 19

such, we overrule Appellants’ second assignment of error. Having overruled all of

Appellant’s assignments of error we affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Ross App. No. 11CA3277 20

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that the Appellees recover of Appellants costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J.: Concurs in Judgment and Opinion. Harsha, J.: Concurs in Judgment Only.

For the Court,

BY: _________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.