[Cite as Ra v. Swagelok Mfg. Co., L.L.C.,

.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

KHALIA RA, :

Plaintiff-Appellant, : No. 109789 v. :

SWAGELOK MANUFACTURING : CO., L.L.C., ET AL.,

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 13, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-19-918511

Appearances:

The Spitz Law Firm, L.L.C., Brian D. Spitz, and Angela Rodriguez, for appellant.

Mansour Gavin, L.P.A., Amy L. Kullik, and Kenneth E. Smith, for appellee.

ANITA LASTER MAYS, P.J.:

Plaintiff-appellant Khalia Ra (“Ra”) appeals the trial court’s decision

to grant summary judgment in favor of defendants-appellees, Swagelok Manufacturing Co., L.L.C. (“Swagelok”), Angelo Smith (“Smith”), and Nathan

Walker (“Walker”), collectively (“appellees”). After a thorough review of the record,

we affirm the trial court’s decision.

On July 19, 2019, Ra filed a complaint against the appellees alleging

sexual harassment, gender discrimination, and retaliation in violation of

R.C. 4112.02. The appellees filed a motion for summary judgment and the trial court

granted the motion, holding in its journal entry:

The court, having considered all the evidence and having construed the evidence most strongly in favor of the non-moving party, determines that reasonable minds can come to but one conclusion, that there are no genuine issues of material fact, and that defendant is entitled to judgment as a matter of law. Plaintiff has failed to establish a prima facie case of retaliation, sexual harassment, and/or gender discrimination, specifically, plaintiff failed to establish a causal connection between the protected activity and adverse action, defendants took immediate and appropriate corrective action to the single complaint of sexual harassment, and defendants had legitimate, non-discriminatory reasons for termination.

Journal entry No. 113446583 (May 29, 2020).

I. Facts

On April 16, 2018, Ra was hired by Swagelok as an assembler. Walker

was Ra’s supervisor. Ra was trained by Ervin Grant (“Grant”). Grant started asking

Ra if she had a significant other and if he could take her out. Ra stated that Grant’s

questions made her feel uncomfortable, therefore, she asked Walker for another

trainer. Despite Ra’s request, training with Grant continued and he continued

asking Ra out. Grant began rubbing Ra’s shoulders and then moved to touching her thigh. This time Ra reported Grant to Walker and human resources. The events

reported by Ra were investigated by Swagelok, and Grant was disciplined and Ra

was assigned a new trainer.

In accordance with Swagelok’s policies, all sexual harassment claims

are investigated by a Human Resources Business Partner (“HRBP”). HRBP

investigates the claims and determines whether the claims have any merit. If the

evidence is insufficient to determine if sexual harassment took place, HRBP follows

up with all involved individuals and reeducates them on Swagelok’s harassment

policy. If the evidence is sufficient to determine sexual harassment took place, the

individual who is guilty of harassing is held accountable based on the severity of the

conduct. The individual’s punishment can range from being placed on an Associate

Improvement Plan (“AIP”) to being terminated from employment.

After HRBP investigated Ra’s claims, they found sufficient evidence

that Grant engaged in sexual harassment and placed him on a Level 1, three-month

AIP. As a result of Ra’s disclosures of sexual harassment, Ra states that Grant and

another coworker began calling her a snitch. Ra states that she reported the

retaliation to Walker. Walker denies that Ra reported the “snitch” calling incidents

to him.

Shortly thereafter, Ra began having panic attacks and requested to

leave her current assignment. Walker informed Ra that she would have to submit a

doctor’s note to be reassigned. Ra submitted the doctor’s note to Smith, another supervisor, because Walker was on vacation. Ra was reassigned to another

department and campus, where she was then supervised by Smith. Prior to

reassignment, Ra states that she requested overtime and was denied. Ra believed

that Walker approved another female for overtime. Walker denied that Ra ever

asked for overtime. Ra reported her concerns to HRBP. After an investigation it

was determined that overtime was evenly distributed and aligned according to

worker’s qualifications.

After moving to another campus, Ra was assigned to another trainer,

but at Ra’s request, was removed because Ra felt as if the new trainer was picking

on her. Ra’s supervisor assigned yet another trainer, Ramona Hunter (“Hunter”).

Ra testified that on her first day of training with Hunter, Hunter told her that Smith

was out to get her and that there were rumors that Ra had a sexual relationship with

another male coworker. Hunter denied making the statements. Ra reported the

rumors to Smith, stating that another coworker was spreading rumors about her

having a sexual relationship. Smith told Ra to see if the rumors would die down, but

to report any additional incidences. Hunter testified that she noticed Ra making

minor mistakes, as a result of not receiving proper training. However, Smith

directed Hunter to issue Ra quality notices for improper work, even though Hunter

did not normally give quality notices for minor errors to trainees because they were

still learning the job. On another workday, Ra, while working on the shop floor, received a

text message from her son. Ra texted him back, and was observed by another

supervisor, Brian Osborne (“Osborne”). Osborne reminded Ra that company policy

prohibits cell phone usage on the shop floor. Ra claimed that Osborne began yelling

at her and threatening to report her to Smith. However, Ra was observed by

witnesses yelling at Osborne, telling him to “get the fu*k out of here.” Smith arrived

during the incident, took Ra to a separate room, and spoke with her about the

incident. Ra began crying, and Smith allowed Ra to leave for the day. Ra claims to

have observed other coworkers, in the past, on their cell phones in the presence of

supervisors, and were not reprimanded. After the incident, Smith initiated an

investigation into the altercation between Ra and Osborne.

HRBP investigated the incident. The witness statements were

inconsistent, but Ra was reported as saying “her dad said she should register her

hands because they are deadly.” HRBP placed Ra on a Level 3 AIP for being

disrespectful to a supervisor and creating a hostile work environment. Ra was

notified that being placed on a Level 3 AIP required her to improve her performance

and that any future infraction could result in her termination.

On November 1, 2018, Ra filed another report to Smith, that someone

told her three other coworkers were making sexual comments about her. Smith

stated that after Ra informed him of the rumors, she expressed that she did not want

to escalate the report to human resource, but just wanted him to be aware. Ra and Smith agreed that they would see if the situation calmed down, and Ra would inform

Smith if the rumors continued. Smith investigated Ra’s claims and ordered she and

the other employees to watch a video about sexual harassment and discrimination.

Ra met with Smith on December 12, 2018, and told him that she felt targeted by the

AIP and sexual harassment video.

Next, Ra filed another complaint to Smith about another coworker

making a threatening jump towards her at the office holiday party. Ra stated that

she felt as if the coworker was going to attack her. Ra filed a charge of discrimination

with Equal Employment Opportunity Commission and met with the human

resources manager to discuss her complaints and concerns.

On January 30, 2019, Ra was observed in the welding area and shop

floor without safety glasses, because they were on her forehead. Ra claimed that she

did not believe she was in an area that required safety glasses, but a supervisor

approached her and told her to put the safety glasses on her eyes. The supervisor

asked Ra twice to put on safety glasses. Instead of putting the safety glasses on, Ra

walked away because she did not believe she was on the shop floor, but rather in

front of the exit door.

Upon learning Ra’s name and that she was supervised by Smith, the

following day, the supervisor reported to Smith that Ra refused to wear safety

glasses on the shop floor. Smith met with Ra and told her that her refusal to wear safety glasses on the shop floor was a direct violation of her Level 3 AIP and could

result in her termination.

Smith escalated the latest incident to human resources and made a

recommendation to terminate Ra. Ra was terminated on February 5, 2019, for Code

of Conduct and Core Values infractions, in violation of her Level 3 AIP.

Ra filed suit against the appellees. The trial granted the appellees’

summary judgment motion, and Ra filed this appeal assigning four errors for our

review:

I. The trial court committed reversible error by finding that Ra did not satisfy her prima facie case for sexual harassment when it determined that Ra made a single report of sexual harassment and that appellees took immediate and appropriate corrective action;

II. The trial court committed reversible error by determining that no genuine issue of material fact remained as to whether Ra met her prima facie case for retaliation under R.C. 4112.01, et seq.;

III. The trial court committed reversible error by determining that no genuine issue of material fact remained as to whether Ra met her prima facie case for gender discrimination under R.C. 4112.01, et seq.; and

IV. The trial court committed reversible error by determining that no genuine issue of material fact remained as to whether appellees’ alleged reasons for disciplining and termination Ra were pretext for discrimination and/or retaliation.

II. Summary Judgment

A. Standard of Review “We review summary judgment rulings de novo, applying the same

standard as the trial court.” Montgomery v. Greater Cleveland Regional Transit

Auth., 8th Dist. Cuyahoga No. 109559,

, ¶ 18 citing Grafton v. Ohio

Edison Co.,

,

(1996). “We accord no deference

to the trial court’s decision and independently review the record to determine

whether summary judgment is appropriate.”

Under Civ.R. 56, summary judgment is appropriate when (1) no

genuine issue as to any material fact exists; (2) the party moving for summary

judgment is entitled to judgment as a matter of law; and (3) viewing the evidence

most strongly in favor of the nonmoving party, reasonable minds can reach only one

conclusion that is adverse to the nonmoving party. Civ.R. 56. “Once the moving

party demonstrates entitlement to summary judgment, the burden shifts to the

nonmoving party to produce evidence related to any issue on which the party bears

the burden of production at trial. Civ.R. 56(E).” Mattress Matters, Inc. v. Trunzo,

,

, ¶ 10 (8th Dist.).

B. Law and Analysis

In Ra’s first assignment of error, she argues that the trial court erred

by finding that Ra did not satisfy her prima facie case for sexual harassment.

According to the Supreme Court of Ohio:

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.

Hampel v. Food Ingredients Specialties,

,

(2000).

We determine that the record supports that Ra demonstrated the

harassment by Grant was unwelcomed evidenced by the fact that on the first day

Grant begin asking relationship questions that made Ra uncomfortable. The

questions were based on sex where Grant questioned if Ra had a significant other,

asked her out, later begin rubbing her shoulders and eventually touched her thigh.

The actions were sufficiently severe to affect her employment, and that the employer

knew or should have known of the harassment.

The record demonstrates that Ra informed Walker of the initial

comments and the escalated actions of Grant. After reporting Grant’s actions to

human resources, the record demonstrates that an investigation began immediately

and Grant was thereafter removed as Ra’s trainer and placed on a Level 1 AIP for a

period of three months. Generally, a response by an employer is adequate if its

purpose was to end the harassment. McGraw v. Pilot Travel Ctrs., LLC, 10th Dist.

Franklin No. 11AP-699,

, ¶ 25. “And whether a response is effective

is measured not by the extent to which the employer disciplines or punishes the

alleged harasser, but rather if the steps taken by the defendant halt the harassment.”

We determine that Swagelok’s removal of Grant as Ra’s trainer and Grant’s AIP

punishment halted his harassment of Ra.

However, Ra argues further that she made several reports of sexual

harassment, exclusive of Grant. Ra states that she told Smith on two separate

occasions that her coworkers were making sexual comments about her, and that

Smith failed to report Ra’s complaints to human resources. These sexual comments

referenced Ra having a sexual relationship with another coworker. We note these

comments were not made to Ra, but she learned of the comments through a

coworker. We find that Ra does not demonstrate how the coworkers’ comments

about a sexual relationship with another coworker was based on her gender or sex

or has a sexual element.

[H]arassing conduct that is simply abusive, with no sexual element, can support a claim for hostile-environment sexual harassment if it is directed at the plaintiff because of his or her sex. However, harassment is not automatically discrimination because of sex merely because the words used have sexual content or connotations.

Hampel,

,

.

Ra also does not demonstrate how these comments were sufficiently

severe or pervasive to affect the terms, conditions, or privileges of employment, or

any matter directly or indirectly related to employment.

[I]n order to determine whether the harassing conduct was “severe or pervasive” enough to affect the conditions of the plaintiff’s employment, the trier of fact, or the reviewing court, must view the work environment as a whole and consider the totality of all the facts and surrounding circumstances, including the cumulative effect of all episodes of sexual or other abusive treatment.

.

Looking at the cumulative effect of the all of the episodes, Ra’s

additional claims of sexual harassment do not meet the standard of a prima facie

case of sexual harassment. Ra’s reporting to Smith was followed by a mutual

agreement to see if the rumors subsided with instruction to report any new

incidents. Therefore, Ra’s first assignment of error is overruled.

In Ra’s second assignment of error, she argues that the trial court

erred by determining that Ra failed to meet her prima facie case for retaliation. “[I]n

order for a plaintiff to prevail on a retaliation claim brought pursuant to

R.C. 4112.02(I), she must establish that her protected activity was the reason for the

adverse employment action taken against her.” Wholf v. Tremco Inc., 2015-Ohio-

171,

, ¶ 39 (8th Dist.).

Ra argues that both she and Grant were involved in sexual

harassment complaints, but were treated vastly different, because Grant was placed

on Level 1 AIP, and Ra on Level 3 AIP. Ra also claims that she was terminated as

retaliation for reporting sexual harassment. However, we find that Ra’s claims are

misplaced. The record reveals that Ra was placed on Level 3 AIP not because of

sexual harassment complaints, but because of the verbal altercation between Ra and

Osborne, who did not have any involvement with her sexual harassment complaints.

Osborne reprimanded Ra for using her cell phone on the shop floor against company policy. After an investigation, it was determined that Ra engaged in disrespectful

and threatening behavior towards Osborne, a supervisor.

Additionally, the record reveals that Ra was recommended for

termination, in violation of her Level 3 AIP, after refusing to wear safety glasses on

the shop floor. The supervisor that observed Ra on the shop floor with her safety

glasses on her forehead did not know who Ra was. Upon learning her identity, Ra’s

behavior was reported to Smith. Further, the shop supervisor had no involvement

with Ra’s sexual harassment complaint and the record does not reflect that Ra’s

prior complaint was a factor in the decision to terminate her.

However, Ra claims that Smith had knowledge and that he was the

one who recommended her termination. Ra, however, fails to demonstrate how

Smith’s recommendation for termination was a result of her sexual harassment

complaints. Ra committed an infraction while being on Level 3 AIP.

[T]he plaintiff’s evidentiary burden of establishing a prima facie case in the first step of the burden-shifting analysis is one of production, not persuasion, and it is not “onerous.” [Texas Dept. of Community Affairs v.] Burdine, 450 U.S. at 255-256[,

,

(1981)]. * * * the plaintiff is not required to conclusively prove all the elements of his claim at the prima facie stage of the burden- shifting analysis. * * * the plaintiff must ultimately prove, by a preponderance of the evidence, that the plaintiff’s protected activity was the determinative factor in the employer’s adverse employment action.

Id. at ¶ 43.

We find that Ra has not satisfied her reciprocal burden of setting forth

evidence demonstrating a genuine issue of material fact that filing a sexual harassment complaint was the determinative factor in Swagelok’s decision to

terminate her. Ra committed documented infractions against company policy and

committed the last infraction while being on a corrective action plan for

insubordination. We find that Ra has not met the elements of a prima facie case of

retaliation. Therefore, Ra’s second assignment of error is overruled.

In Ra’s third assignment of error, she contends that the trial court

erred by determining that she did not meet her prima facie case for gender

discrimination.

To establish a prima facie case of * * * gender discrimination in an employment discharge action, a plaintiff must show that she (1) was a member of a statutorily protected class, (2) was discharged, (3) was qualified for the position, and (4) the position was filled by a person outside the protected class.

Witzigreuter v. Cent. Hosp. Servs., 8th Dist. Cuyahoga No. 109192, 2020-Ohio-

5088, ¶ 17, citing McDonnell Douglas Corp. v. Green,

,

,

(1973).

Ra argues that she observed two male coworkers on their cell phones

while supervisors were present. She also argues that she never observed a

supervisor telling male coworkers to stop using their cell phones while on the shop

floor. Thus, Ra argues, the appellees treated male employees more favorably than

her. However, also in her complaint, Ra states that she observed two females on

their cell phones while on the shop floor, who never received a reprimand. Ra’s arguments are misplaced because she fails to demonstrate that

male employees were treated differently than the females employees. According to

Ra, she observed male and female coworkers on their phones without a supervisor

reprimanding them. Ra also has failed to demonstrate that her position was filled

by a person outside of the protected class. Ra was not terminated for her cell phone

usage, but rather violating a company policy while on a Level 3 AIP. Ra has failed

to meet her prima facie case for gender discrimination. Therefore, Ra’s third

assignment of error is overruled.

In Ra’s fourth assignment of error, she argues that the trial court

erred by determining that no genuine issue of material fact remained as to whether

appellees’ alleged reasons for disciplining and terminating Ra were a pretext for

discrimination and/or retaliation. Ra correctly claims that if an employee

establishes a prima facie claim of retaliation or discrimination, the burden shifts to

the employer to articulate a legitimate nonretaliatory reason for the action.

According to the McDonnell Douglas test, “the plaintiff must first establish a prima

facie case of discrimination.” Wholf,

,

, ¶ 30, citing

McDonnell Douglas Corp. v. Green,

,

,

(1973). “If the plaintiff makes a prima facie case, the burden of production shifts to

the employer to articulate some legitimate, nondiscriminatory reason for the

employment decision.”

citing

. “If the employer successfully

meets this burden, then the burden shifts back to the plaintiff to show, by a preponderance of the evidence, that the proffered reason was really a pretext for

unlawful discrimination.”

citing

.

However, Ra’s arguments that the burden has shifted to the appellees

fails because Ra did not establish a prima facie claim of retaliation or discrimination.

As a result, the burden does not shift to the appellees. Therefore, Ra’s fourth

assignment of error is overruled.

Judgment affirmed.

It is ordered that appellees recover from appellant 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

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

__________________________________ ANITA LASTER MAYS, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and MARY EILEEN KILBANE, J., CONCUR