Daniels v. Pike County Commissioners

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0501n.06
No. 16-4000
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PAMELA J. DANIELS, et al., ) FILED
) Aug 29, 2017
Plaintiffs-Appellants, ) DEBORAH S. HUNT, Clerk
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
PIKE COUNTY COMMISSIONERS, et al., )
SOUTHERN DISTRICT OF OHIO
)
Defendants-Appellees. )
)
)
BEFORE: DAUGHTREY, MOORE, KETHLEDGE, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e–2000e-17, is not a “general civility code for the
American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); see
also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Consequently, the statutory
scheme will not protect employees from all acts of a boorish, callous, condescending, or
overbearing supervisor. However, Title VII can, and does, protect the rights of employees not to
be subjected to job-related discrimination on the basis of gender, 42 U.S.C. § 2000e-2(a)(1), or
to retaliation for making a charge of discriminatory practices. 42 U.S.C. § 2000e-3(a). In this
case, plaintiff Pamela Daniels1 alleges, under both federal and state law, that defendant Charles
1
Although the complaint and the first amended complaint were filed in the names of Pamela Daniels and
Rachel Barron, Barron is no longer a party to this appeal.
No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
Robert (Rob) Junk, Jr.,2 the Pike County (Ohio) prosecutor, created a hostile work environment
in his office and terminated Daniels’s employment in the office solely because of her gender, that
Junk retaliated against her for reporting the harassment, and that Junk’s actions amounted to
intentional infliction of emotional distress. In a thorough written opinion, the district court
granted summary judgment to Junk on each claim, and Daniels now appeals. For the reasons
discussed below, we conclude that Daniels has identified a genuine dispute of material fact that
precludes summary judgment for Junk on Daniels’s claim of retaliation. Thus, we reverse the
district court’s decision on that one cause of action but affirm the rest of the district court’s
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Junk hired Daniels as a secretary in the Pike County prosecutor’s office in November
1997, a year after he first was elected as county prosecutor. By 2013, Daniels had moved into
the victim’s-advocate/witness-coordinator position in the office and, at that time, enjoyed a
generally good working relationship with Junk.
That relationship began to fray, however, in October 2013 after Junk attended a seminar
on restoring public trust in government offices. According to Junk:
I was sitting there, and it really embarrassed me some of the things [the speaker]
said. And I remember what my mom said, “Every time I come [to the
prosecutor’s office] they are having a party out front.” That’s embarrassing.
And as luck would have it, that day Allen Smith[, a former United States
Marshal,] and I actually had lunch together. We went to a meeting at the
Columbus Police Academy with some of the Homeland Security people, and he
talked about people in the office not being professional and not dressing well, and
how they answered the phone, and things like that.
And I was guilty of basically screwing off at work and getting on the Internet and
things like that, too. And I did it on more than one occasion.
2
The first amended complaint listed both Junk and the Pike County Commissioners as defendants;
however, the claims against the commissioners have been dismissed, leaving only Junk as a party defendant.
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***
But I wanted to do something about it. And it was the straw that broke the
camel’s back. I talked with Allen about it over lunch, and it’s just something that
had been building.
When he returned from the seminar, Junk implemented a number of changes that
ostensibly were designed to improve the professionalism in the office. Among those changes
were requirements that staff work five eight-hour days (8:30 a.m. until 4:30 p.m.)—rather than
four ten-hour days, as they had been doing for a period of time—that employees clock into and
out of work each day, that staff no longer wear blue jeans or flip-flops in the office, and that
office computers be used for business purposes only. Logical rationales were offered for each
new guideline. For instance, even Daniels herself admitted that the switch back to the more-
traditional five-day work week was warranted because, when scheduled to work four ten-hour
days, “there were days people weren’t getting their full 10 hours in or working their full 10
hours.” Furthermore, Junk deemed use of a time clock necessary because he “was having
problems with [Barron and Daniels] showing up on time, wanting to leave early and things like
that.” Other employees also told Junk that, when he would be in court, “[Daniels] would stroll in
around 9:00.” Moreover, Junk himself sometimes had to answer the telephones himself because
Daniels and Barron “left the office uncovered at times.”
Daniels does not dispute that office personnel often wore jeans and flip-flops to work
because, up to that point, Junk had not implemented a dress code. After returning from the
seminar, however, and in light of comments from Junk’s ex-mother-in-law that the officer
personnel “never looked professional up front”, Junk required that the women wear more-
professional office attire—“dress pants, dress clothes, no flip-flops.” Daniels “did not have a
problem with that at all” and “was more than willing to comply with” the new dress code.
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The final component of Junk’s effort to improve office productivity involved a directive
emphasizing that office computers were to be used for government work only. Even so, Junk did
allow the computers “to be used for personal use during lunchtime and after hours.” To ensure
compliance with the new policy, early one morning, Junk accessed the search histories on the
work computers used by the women in the office. When the women arrived for work, the search
histories remained on their screens to alert them that Junk indeed had checked on their
unauthorized computer usage.
Clearly, none of the remedial measures undertaken by Junk were, in and of themselves,
improper. Daniels alleged, however, that the directives were enforced in a discriminatory
manner. Specifically, she claimed in her deposition testimony that only the female employees in
the office were expected to abide by the 8:30–4:30 workday. But she also conceded, that
although the male employees did not work strictly from 8:30 until 4:30, they had been working,
and continued to work, five eight-hour days, usually from 7:00 a.m. until 3:00 p.m. Most of the
men, who worked outside the office, also were not required to clock in and clock out when
beginning and ending their workdays and were allowed to continue to wear jeans while
performing their official duties as investigators and diversion officers. Daniels also claimed that
Junk accessed the search histories only on the computers used by the female staff. Junk,
however, defended that fact by explaining that the layout of the office allowed him to see what
one of the male employees was doing on his computer during the day, and another male
employee normally was on the road driving individuals to and from court.
Daniels stated that, in addition to the allegedly discriminatory office policies
implemented by Junk, the prosecutor engaged in other actions that indicated a desire to treat
female employees more harshly than male employees, and Daniels more harshly than even other
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female office staff. For example, at some point after requiring employees to clock in upon their
arrival at the office, Junk walked among the front-office staff, knowing that only the women
employees were required to clock in, and said, “So did everybody get punched in? Everybody
working. Nobody whining. That’s the way we like it.”
On other occasions, Junk allegedly tried to belittle or intimidate Daniels. Once, in the
presence of members of the public seeking information in the office, Junk stated, “[T]hese girls
have work they need to be doing. I’m just making sure they’re doing what they’re supposed to
do.” On another occasion, Junk, while addressing Daniels, said, “Well, there’s a song about
everything, and one of those songs is ‘Get the Fuck Out’ by Cee Lo Green.”
When Daniels and Barron inquired of their boss why he had accessed the search histories
on their computers, Junk reportedly “flipped out and said, ‘Don’t you two think you can’t be
replaced’” and “If you’re on the internet, then there’s things that aren’t getting done.” However,
when pressed by Daniels to identify work that had not been completed, Junk was unable to come
up with any instance of such a failure to perform an assigned task.
Daniels also highlighted in her deposition testimony the fact that, after the
implementation of the new office dress code, she had asked Junk if she could wait until after the
next payday to comply “so that [she] could get some additional clothing” that would fit her.
Even though Junk acquiesced to the request, a few days later, prior to the awaited payday, Junk
approached Daniels and inquired, “And didn’t I say we were going to change the dress code
around here? Aren’t you wearing jeans?” When Daniels reminded Junk that he had given her
additional time to purchase new clothes, he responded, “Well, if you say so,” and walked away.
Daniels also alleged that Junk enjoyed tormenting the women working in the office. As
an example, she recounted an occasion on which Junk entered the women’s work area and
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popped a large piece of bubble wrap, causing Daniels to jump in fear. According to Daniels,
Junk engaged in such an action because “he wanted to see us shake or jump; he thought it was
funny. He wanted to upset us. He did it to upset us. He enjoyed seeing us upset.”
Nor was it only the women in the prosecutor’s office who noticed the unequal treatment
meted out to the female staff. Aaron Gullett, a former employee of the Pike County Sheriff’s
Office, ultimately replaced Daniels in the prosecutor’s office and “heard Rob Junk making
disparaging comments toward females, including, ‘That’s why I don’t like to hire women,’
‘That’s why it is a pain to hire women,’ and, ‘Working with men is so much easier than working
with women.’” Gullett also stated in a sworn affidavit that Junk and Investigator Charlie Reader
prodded him to take actions “specifically to annoy or upset Angie Farmer, the only female in the
office [after Daniels’s employment was terminated] and also a friend to Pam Daniels and Rachel
Barron.” Rather than do so, however, Gullett voluntarily left the prosecutor’s office after only
eight months “because of the things [he] saw and the way [his] employer Rob Junk and his
subordinates treated people at his behest.”
The event that set into motion the series of acts that ultimately resulted in Junk’s
termination of Daniels’s employment in his office occurred sometime either on or shortly before
January 15, 2014. According to Daniels,3 she was working at a vacant desk due to a problem
with her own printer when Junk called her name. When Daniels looked up, she saw Junk in the
doorway of an office holding an AR-15 rifle4 and heard him state, “Don’t worry. I’m not that
3
Junk offers a slightly different take on the interaction; however, because this matter comes before us on an
appeal from a grant of summary judgment, we view genuinely disputed facts in the light most favorable to Daniels,
the nonmoving party. See, e.g., Scott v. Harris, 550 U.S. 372, 380 (2007).
4
Although Daniels claims in her appellate brief that “Junk waved an assault rifle at her,” Appellant’s Br. at
9, the record before us does not support that assertion. Indeed, Daniels testified during her deposition that Junk held
the gun with his right hand lower than his left hand, “meaning the gun was being held up in the air.” (Page ID 239)
Moreover, she denied that Junk ever pointed the weapon at her. (Page ID 239)
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mad, ha, ha, ha, ha.” Although Junk viewed the entire interaction as some sort of joke, Daniels
felt the display of the weapon “was just an intimidation tactic on Rob’s part.”
On January 15, 2014, Daniels went to the county court for a hearing as part of her duties
as a victim’s advocate/witness coordinator. While at the court, she spoke with Dominica
Hannah, a victim’s advocate with the Pike County Partnership Against Domestic Violence, and
with Tara Tackett, a deputy in the Pike County Sheriff’s Department. During that conversation,
Daniels recounted the gun incident and “went on about all the changes and the treatment in the
office,” disclos[ing] everything . . . [in the hope] that Tara was going to say something” to her
superiors so that Junk’s actions would come under scrutiny. Tackett indeed did contact Aaron
Gullett—then still a sheriff’s office employee—who, in turn, contacted his supervisor.
Within minutes, Charlie Reader, an investigator in Junk’s office, arrived at the sheriff’s
offices and took statements from Hannah and Tackett. Shortly thereafter, while Gullett was in
Junk’s office, Junk “fired Pam Daniels over the phone just a few hours after she reported the
incident with the gun to Tara Tackett.” Although an intern in the prosecutor’s office claimed
that Junk had told him that “he was firing Ms. Daniels because she was ‘disloyal’”, Junk himself
explained that he decided to fire Daniels because of the “statements that she made to Tara
Tackett and Dominic[a] Hannah,” and because of Daniels’s “job performance, attitude, arguing
with [him] all the time.” In fact, Junk claimed in his deposition testimony that Daniels “was
probably one of the least motivated people [he had] ever supervised.”
Daniels felt that even her termination for her alleged misconduct evidenced the differing
treatment accorded men and women in the office. Daniels explained that although she was fired
merely for reporting Junk’s inappropriate actions, Jason Savage, one of the male diversion
officers, was not fired even though he had an ongoing sexual relationship with a woman under
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his charge in the diversion program. Junk conceded that he had heard rumors about Savage’s
alleged relationship and had called Savage into his office to confront him with the information.
Savage admitted that he planned to marry the woman—and later did so—but denied that he had
engaged in any inappropriate conduct. To verify Savage’s claim, Junk arranged to have a
tracking device secretly placed on Savage’s work vehicle in an effort to document any improper
liaisons by the employee. However, Junk maintained that he was unable to obtain any evidence
of a relationship, other than mere rumor and opinion, and thus decided to drop the matter.
Daniels eventually filed a complaint and an amended complaint in federal district court,
asserting causes of action against Junk under both Title VII and under the Ohio Civil Rights Act
for creation of a hostile work environment, for termination on the basis of gender, and for
retaliation for exercising a federally protected right. She also asserted a state-law tort claim
against her former boss for alleged intentional infliction of emotional distress. Following
discovery, the district court granted Junk’s motion for summary judgment, concluding that
Daniels had failed to make out any of her federal or state causes of action.5
Addressing Daniels’s hostile-work-environment claims, the district court noted that some
of Junk’s acts highlighted by the plaintiff were not truly gender-based, but rather were simply
boorish or indicative of the interpersonal conflict between Daniels and Junk. Nevertheless, the
district court indicated that other acts and attitudes demonstrated the anti-female animus
necessary to proceed with a claim of a hostile work environment. But ultimately the district
court concluded that even those incidents were sporadic at best, did not involve any physical
5
Claims of gender discrimination based on a hostile work environment and of retaliation under Title VII
and those under the Ohio Civil Rights Act are treated identically. See, e.g., Hawkins v. Anheuser-Busch, Inc.,
517 F.3d 321, 322 (6th Cir. 2008) (sexual harassment claims); Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501,
510 (6th Cir. 2016 (retaliation claims).
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contact or threats, and simply were not severe enough in nature or so objectively hostile “as to
alter the terms and conditions of [Daniels’s] employment.”
Similarly, the district court determined that Daniels’s claim of discriminatory termination
also fell short of the legal threshold necessary to pursue the cause of action further. Although
Daniels did adduce sufficient evidence to establish a prima facie case of discrimination, she was
unable to prove that Junk’s legitimate, nondiscriminatory reason for his employment decision
was merely a pretext for invidious, gender-based discrimination.
The district court also concluded that Daniels failed to offer sufficient, detailed evidence
that she had made specific claims of harassment or sex discrimination. Consequently, the court
held that the plaintiff did not engage in the protected activity that is essential to establishing a
claim of Title VII retaliation.
Finally, the district court noted that a plaintiff may not succeed on an Ohio tort claim of
intentional infliction of emotional distress unless that plaintiff establishes that the defendant’s
conduct was so outrageous as to be considered intolerable in civilized society. Because Daniels
failed to satisfy that onerous burden, the district court also granted Junk’s motion for summary
judgment on that state-law cause of action.
DISCUSSION
Standard of Review
We review de novo the grant of summary judgment by a district court. See Dodd v.
Donahoe, 715 F.3d 151, 155 (6th Cir. 2013). Summary judgment will be granted Aif the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.@ Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists
only when, assuming the truth of the nonmoving party=s evidence and construing all inferences
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from that evidence in the light most favorable to the nonmoving party, there is sufficient
evidence for a trier of fact to find for that party. See Ciminillo v. Streicher, 434 F.3d 461, 464
(6th Cir. 2006). A nonmoving party cannot withstand summary judgment, however, by
introduction of a Amere scintilla@ of evidence in its favor. Id.
Hostile-Work-Environment Claims
Pursuant to the relevant provisions of Title VII:
It shall be an unlawful employment practice for an employer . . . to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . . sex, . . . or . . . to
deprive any individual of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual’s . . . sex . . . .
42 U.S.C. § 2000e-2(a)(1) and (2). The United States Supreme Court has interpreted these
provisions to provide protection to employees from a workplace that “is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted). Thus,
to establish a claim of a hostile work environment, a plaintiff must show that: (1) she is a
member of a protected class; (2) she was subjected to unwanted sexual harassment; (3) the
harassment was based on her sex; (4) the harassment was severe or pervasive enough to have
created a hostile work environment; and (5) the employer failed to take reasonable care to
prevent and correct any sexually harassing behavior. See Williams v. Gen. Motors Corp.,
187 F.3d 553, 560-61 (6th Cir. 1999).
Before this court, the parties do not dispute that Junk did, at times, harass Daniels and
that male and female employees in Junk’s office were treated differently. They disagree,
however, both on whether any such harassment or disparate treatment was precipitated by anti-
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female animus and on whether the harassment was severe or pervasive enough to alter the
conditions of Daniels’s employment in the office.
For purposes of this case, therefore, we first must determine whether any harassment or
disparate treatment experienced by Daniels was based on her sex or on some less suspect ground.
Before delving into that thicket, it is wise to reiterate that harassment “based on sex” need not be
“sexual”—as that term is understood in general parlance. As we made clear in Williams, “the
law recognizes that non-sexual conduct may be illegally sex-based where it evinces ‘anti-female
animus, and therefore could be found to have contributed significantly to the hostile
environment.’” Id. at 565 (quoting Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 905 (1st Cir.
1988)). In other words, “the conduct underlying a sexual harassment claim need not be overtly
sexual in nature. Any unequal treatment of an employee that would not occur but for the
employee’s gender may, if sufficiently severe or pervasive under the Harris standard, constitute
a hostile environment in violation of Title VII.” Id. (emphasis in original).
Although Daniels attempts to cast all challenged employment actions taken by Junk in
sexual-harassment terms, it is clear from the record before us that other considerations influenced
many of those decisions. For example, Daniels argues that male employees were not required to
clock in and out of work when the women in the front office were, that the men were not
required to maintain 8:30 to 4:30 hours when the female office staff was, and that men were
allowed to wear jeans to work when the women were not. However, Junk explained that the
different standards were based not on sex but, rather, on job functions and responsibilities. Junk
admitted that Charlie Reader, Brian Reader, and Earl Swepston did not work uniform 8:30 to
4:30 days. Charlie Reader, however, was an investigator, was not expected to perform office
functions during normal office hours, and, thus, was allowed to work from 7:00 until 3:00.
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Swepston, and Brian Reader also worked from 7:00 until 3:00 but, Junk said, that was because
their responsibilities involved bringing detainees into court and fulfilling other duties that were
performed more efficiently prior to 8:30. Moreover, other male employees did adhere to the
8:30 to 4:30 work day, even though “[i]t didn’t work out as good as the 7:00 to 3:00” schedule.
As alleged by Daniels, some of the men did not have to clock in and out of work and
were allowed to wear jeans on the job. All employees, however, were allowed to wear jeans on
Fridays, and some of the male employees were not expected to wear office-appropriate clothing
even on other workdays because their jobs entailed physical components incompatible with
office dress. For example, during his deposition testimony, Junk specifically referenced Savage
and Swepston, both of whom were diversion officers who worked with inmate crews in ditches
throughout the county. Even so, Junk still did not want those employees “coming in just like
they got off a Harley-Davidson or ready to go wash the car.”
However, other acts and comments by Junk could be construed as evidence of anti-
female animus because the prosecutor did not harass, belittle, or oversee male employees in the
same manner as he did Daniels and other female employees. Junk checked the search histories
on only the women’s computers; he stated in front of members of the public that he needed to
check on only the women in the office to ensure that they were completing their work; he asked
only the female employees if they had clocked in; he expressed gratitude to only the women in
the office that they were working and not whining; “oftentimes, instead of addressing [the female
employees] directly, he would speak to others about them as if they were not present”; he made
unambiguous comments that he didn’t like to hire women and that it was easier to work with
men than women; and he once popped bubble wrap behind Daniels because he enjoyed
tormenting and upsetting the women and “wanted to see [them] shake or jump.”
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In the aggregate, such behavior clearly raises at least the specter of anti-female animus.
Such harassment is not actionable under Title VII and under the Ohio Civil Rights Act, however,
unless Junk’s conduct also can be considered severe or pervasive enough to create a hostile work
environment. “[T]he test for a hostile work environment has both objective and subjective
components.” Williams, 187 F.3d at 566. As explained in Harris:
Conduct that is not severe or pervasive enough to create an objectively hostile or
abusive work environment—an environment that a reasonable person would find
hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does
not subjectively perceive the environment to be abusive, the conduct has not
actually altered the conditions of the victim’s employment, and there is no Title
VII violation.
510 U.S. at 21-22.
There can be little doubt that Daniels subjectively perceived the working environment in
Junk’s office to be hostile and abusive. She claimed that by the end of her employment in the
office, her “nerves were shot”, and that Junk did not seem to be happy “unless he was, he was
upsetting [the women employees].”
When determining whether a working environment is objectively hostile or abusive, we
have been directed by the Supreme Court to consider the totality of the circumstances, id. at 23,
meaning that we cannot “disaggregrate” the alleged incidents of harassment, “divorcing them
from their context and depriving them of their full force.” Williams, 187 F.3d at 562. Instead,
we must examine 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.” Harris, 510 U.S. at 23; see also Bowman v.
Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). But “Title VII does not prohibit
‘genuine but innocuous differences in the ways men and women routinely interact with members
of the same sex and of the opposite sex,’” and “‘simple teasing,’ offhand comments, and isolated
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incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.’” Faragher, 524 U.S. at 788 (quoting Oncale, 523 U.S. at 81-82).
Daniels and Barron pointed to numerous incidents that they asserted were objectively
hostile or abusive. The district court succinctly catalogued those actions by Junk as follows:
(1) he permitted male diversion officers (excluding Jason Savage) to work hours
other than 8:30 a.m. to 4:30 p.m.; (2) he did not strictly require male diversion
officers (excluding Jason Savage) to punch a time clock; (3) he accessed female
employees’ computers to check on their personal internet search histories and, on
one occasion, he accessed and left female employees’ search histories on their
computer screens; (4) he prohibited plaintiff Barron from cashing in her vacation
time, but permitted male employees to do so; (5) he laughed and chatted with
male employees, but “smirked” at female employees; (6) on one occasion, he
commented to plaintiff Daniels that she looked like she had lost her best friend;
(7) he loudly popped packing materials in the area where the female employees
worked; (8) he told members of the public on one or two occasions that “these
girls have work they need to be doing. I’m just making sure they’re doing what
they’re supposed to do.”; (9) he stated in front of female employees, “Everybody
working. Nobody’s whining. That’s the way we like it.”; (10) he asked, in front
of the female employees, whether “everyone” had punched the time clock; (11) he
spoke to others about plaintiffs as if plaintiffs were not present; and (12) he asked
plaintiff Daniels on one occasion why she was wearing jeans and said “if you say
so” and stomped off when plaintiff Daniels reminded him that he had given her
additional time to comply with the dress code.
Additionally, Daniels mentioned in her filings before both the district court and before us the
incident in which Junk, while holding an AR-15, commented to Daniels that he was “not that
mad” and then laughed.
There is little doubt that the working relationship between Junk and Daniels deteriorated
significantly after October 2013. However, the listed instances of alleged harassment, even in
the aggregate, would not be considered by a rational person to be sufficiently severe or pervasive
so as to alter the conditions of the plaintiff’s employment. One of the instances of alleged
harassment—the prohibition on Barron taking cash rather than leave time for accrued vacation
days—did not even concern Daniels. Numerous others involved implementation of office
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policies that reflected the realities of the responsibilities of office personnel. Others were
relatively innocent, singular occurrences, comments that were not objectively hostile or abusive,
or “mere offensive utterance[s].” Even the incident involving Junk’s comment while holding a
firearm was not as severe as it might otherwise have been in a different scenario given the fact
that the record established that guns were regularly carried (and presumably displayed) in the
prosecutor’s office. Without question, Junk’s actions in that regard showed both immaturity and
bad judgment. The totality of the circumstances, however, do not support the conclusion that the
working environment was objectively hostile or abusive. The district court thus did not err in
granting summary judgment to Junk on Daniels’s hostile-work-environment claims.
Termination Claims
Daniels also asserts that Junk violated the provisions of Title VII and the Ohio Civil
Rights Act by firing her from her job because she was a female. A plaintiff in such an
employment-discrimination case may seek to establish her claim “either by introducing direct
evidence of discrimination or by presenting circumstantial evidence that would support an
inference of discrimination.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014)
(citation omitted). Although evidence was adduced in this matter that Junk stated that he did not
like to hire women and that he found it easier working with men, Daniels offered no direct
evidence that she was fired due to her gender. Thus, for her to succeed on her claims of
wrongful termination, she must seek to prove unlawful discrimination by circumstantial evidence
utilizing the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and refined in Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).
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Under that paradigm, a plaintiff first must establish a prima facie case of discrimination.
Burdine, 450 U.S. at 252-53 (citing McDonnell Douglas, 411 U.S. at 802). If the plaintiff can do
so, the burden of production shifts to the defendant to “articulate some legitimate,
nondiscriminatory reason for the [alleged adverse action.]” Id. (quoting McDonnell Douglas,
411 U.S. at 802). The plaintiff then is required to prove that the reasons proffered by the
defendant were not the true motivations for the defendant’s actions, but were mere pretexts for
prohibited discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 804).
We have held repeatedly that a plaintiff’s burden of establishing a prima facie case is not
an onerous one, see, e.g., Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000)
(citing Burdine, 450 U.S. at 253), and is “a burden easily met.” Wrenn v. Gould, 808 F.2d 493,
500 (6th Cir. 1987) (citations omitted). In a gender-discrimination case, a plaintiff thus initially
needs to show only that: “(1) she is a member of a protected group; (2) she was subjected to an
adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by
a person outside the protected class . . . .” Peltier v. United States, 388 F.3d 984, 987 (6th Cir.
2004). Daniels easily overcame that hurdle by introducing evidence that she was a woman who
was qualified for the job she held but was fired from that position and replaced by Aaron Gullett,
a male.
Junk then successfully articulated nondiscriminatory reasons for the termination decision.
According to the prosecutor, Daniels had problems showing up for work on time, was hostile and
short with him, and “always wanted to argue.” He specified, however, that he fired the at-will
employee both because of the statements she made about him to Tackett and Hannah and
because of her poor job performance and attitude. Given the fact that Daniels then failed to offer
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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
any evidence that those reasons actually were pretexts for invidious discrimination, the district
court did not err in granting summary judgment to Junk on these causes of action as well.
Retaliation Claims
Title VII and the Ohio Civil Rights Act also make it unlawful for employers to retaliate
against employees for engaging in “protected activity,” such as opposing any practice made
unlawful by the legislation, or lodging charges of discrimination. 42 U.S.C. § 2000e-3(a); Ohio
Rev. Code § 4112.02(I). Daniels asserts, however, that Junk did just that by terminating her
employment after she complained to Tara Tackett and Dominica Hannah about harassment and
discrimination in the prosecutor’s office.
As with claims of disparate treatment, a plaintiff may establish a claim of retaliation in
violation of Title VII and the Ohio Civil Rights Act through either direct or circumstantial
evidence. Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 644-45 (6th Cir. 2015).
“Direct evidence is that evidence which, if believed, requires no inferences to conclude that
unlawful retaliation was a motivating factor in the employer’s action.” Imwalle v. Reliance Med.
Prods., Inc., 515 F.3d 531, 543-44 (6th Cir. 2008). “If there is direct evidence of retaliation, then
the plaintiff’s case-in-chief is met, and the burden shifts to the employer to prove by a
preponderance of the evidence that it would have made the same decision absent the
impermissible motive.” Yazdian, 793 F.3d at 648 (citation and internal quotation marks
omitted).
In this case, Junk readily admits that “[o]ne of the reasons” he fired Daniels was the fact
that she proved to be “disloyal” by making statements about him and about the office atmosphere
to Tackett and Hannah. Although Junk then attempted to temper that assertion by claiming that
Daniels’s job performance, her attitude, and her continual arguing also contributed to the
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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
decision to terminate her employment, he conceded that he had no immediate plans to fire her
before she made the statements. Under such circumstances, we conclude that Daniels succeeded
in offering direct evidence of retaliation to the extent that her conversation with the other county
employees in the courthouse could be considered “protected activity.”
The district court properly held that the fact that Daniels confided in a deputy sheriff and
in a victim’s advocate of a county organization combatting domestic violence—rather than in the
sheriff himself or in the county commissioners—did not mean that she failed to report her
complaint to an appropriate individual. As the district court noted, we have stated clearly “that
there is no qualification . . . on the party to whom the complaint is made known . . . .” Johnson
v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000). Indeed, a complaint of a possible Title
VII violation “may be made to a co-worker, newspaper reporter, or anyone else.” Id. (emphasis
added).
Although the complaint need not “be lodged with absolute formality, clarity, or
precision,” Yazdian, 793 F.3d at 645 (citation omitted), it cannot be merely a “vague charge of
discrimination.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir.
1989). In granting summary judgment to Junk on Daniels’s retaliation claims, the district court
concluded that the plaintiff’s statements to Tackett and Hannah were just such vague charges.
The district court did note that Daniels testified in her deposition that she told Tackett and
Hannah “about the behavior in the office . . . [the] environment” and that she “just went on about
all the changes and the treatment in the office . . . and disclosed everything to Nika and Tara.”
(Emphasis added.) Nevertheless, the district court held that such allegations failed to state
specifically that Daniels “was being sexually harassed or discriminated against on account of her
sex or gender.” Furthermore, the district court refused to consider as an explanation of those
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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
conversations Daniels’s subsequent statement in an affidavit that she told Tackett and Hannah
that she “was being sexually harassed and treated differently in the office.” According to the
district court, the statement in the affidavit contradicted Daniels’s earlier deposition testimony
without providing an explanation for the disparity.
The district court’s view of Daniels’s deposition testimony appears to be too narrow,
especially at the summary-judgment stage of the litigation when all inferences are to be viewed
in the light most favorable to the nonmoving party. Daniels’s statement in her deposition that
she discussed “all the changes and the treatment in the office” with Tackett and Hannah and that
she disclosed “everything” to them encompasses more than her mere disagreement with “office
policies and managerial style.” Indeed, Daniels’s deposition was replete with allegations of
differing treatment of male and female employees, of efforts to harass and belittle Daniels and
Barron, and of an intimidating atmosphere that the women were forced to endure on a daily
basis. When Daniels referred to “the treatment in the office,” there is little doubt that she was
referencing the alleged harassment and disparate treatment that she had described and that she
later referenced in her affidavit before the court. Thus, we find no inconsistency or contradiction
between Daniels’s deposition testimony and the specific allegations in her affidavit. Because
Daniels’s complaints to Tackett and Hannah, when viewed in their full context, were not vague
or contradictory, the plaintiff did indeed engage in protected activity when discussing the culture
and atmosphere of the office. Combined with Junk’s admission that he terminated Daniels’s
employment because she made those statements, we conclude that Daniels has raised at least a
genuine dispute of material fact that precludes summary judgment for the defendant on her
retaliation claims.
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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
Claim of Intentional Infliction of Emotional Distress
In a final allegation of error, Daniels contends that the district court improperly granted
Junk summary judgment on her state-law tort claim of intentional infliction of emotional distress.
Under Ohio law, plaintiffs seeking to succeed on a claim of intentional infliction of emotional
distress bear a heavy burden and must establish:
1) that the actor either intended to cause emotional distress or knew or should
have known that actions taken would result in serious emotional distress to the
plaintiff; 2) that the actor’s conduct was so extreme and outrageous as to go
beyond all bounds of decency and was such that it can be considered as utterly
intolerable in a civilized community; 3) that the actor’s actions were the
proximate cause of plaintiff’s psychic injury; and 4) that the mental anguish
suffered by plaintiff is serious and of a nature that no reasonable man could be
expected to endure it.
Hayward v. Cleveland Clinic Found., 759 F.3d 601, 619 (6th Cir. 2014) (quoting Pyle v. Pyle,
463 N.E.2d 98, 103 (Ohio Ct. App. 1983) (citations and internal quotation marks omitted)).
Daniels’s state-law cause of action fails on many fronts. First, the plaintiff failed to offer
any evidence, other than her own conjecture, that Junk intended to cause Daniels emotional
distress or should have known his actions would cause such a severe reaction. Furthermore,
although many of Junk’s antics were boorish, juvenile, and perhaps even mean-spirited, we
cannot say they were so intolerable as to go beyond all bounds of decency. Finally, “the mental
anguish” suffered by Daniels was not so serious “that no reasonable [person] could be expected
to endure it.” In fact, after Daniels was fired in January 2014, she waited until August 2014 to
see a physician about her emotional state and, at that time, was prescribed only a common anti-
anxiety drug and did not require hospitalization or intensive therapy.
In short, Daniels has not adduced evidence sufficient to create a genuine dispute of fact
regarding her claim of intentional infliction of emotional distress. The district court thus did not
err in granting Junk summary judgment on that cause of action.
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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
CONCLUSION
Plaintiff Daniels has failed to adduce sufficient evidence to support her allegations that
she was fired by Junk because of her gender, that harassment in the office was so severe or
pervasive as to create a hostile work environment, or that Junk intentionally inflicted the degree
of emotional distress that would allow her claims in those regards to proceed to trial. However,
Daniels did offer sufficient evidence to allow further consideration of her federal-law and state-
law retaliation claims. We thus AFFIRM the district court’s grant of summary judgment to the
defendant on Daniels’s hostile-work-environment, termination, and state-tort claims. We
REVERSE the grant of summary judgment on the plaintiff’s retaliation claims and REMAND
the matter to the district court for such further proceedings as are appropriate.
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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in
part. I concur with the majority that summary judgment is inappropriate with respect to
Daniels’s retaliation claim. However, I respectfully dissent from the majority’s conclusion that
summary judgment is appropriate with respect to Daniels’s claims of a hostile work
environment, termination on the basis of gender, and intentional infliction of emotional distress.
With respect to Daniels’s hostile-work-environment claim, I believe that Daniels has
pointed to sufficiently severe and pervasive examples of sexual harassment “to alter the
conditions of [Daniels’s] employment and create an abusive working environment.” Phillips v.
UAW Int’l, 854 F.3d 323, 327 (6th Cir. 2017) (quoting Williams v. CSX Transp. Co., 643 F.3d
502, 512 (6th Cir. 2011)). “In determining whether an actionable hostile work environment
claim exists, we look to all the circumstances, including 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.” Id.
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). Frequent examples
of Pike County Prosecutor Robert Junk treating women differently than men, often in
humiliating fashion, R. 36 (Op. & Order at 23–24) (Page ID #545–46) (listing twelve instances
of harassing or discriminatory conduct toward women in the office), alongside Junk’s
discriminatory statements about women in the workplace, R. 31-3 (Gullett Aff. ¶ 20) (Page ID
#407), would permit a reasonable juror to conclude that there was a hostile work environment.
In one particularly egregious example, reasonable jurors could even find that Junk’s conduct was
“physically threatening.” Phillips, 854 F.3d at 327. At a point when Junk and Daniels “were not
on good terms,” Junk—while holding an AR-15—told Daniels, “Don’t worry. I’m not that mad,
ha, ha, ha, ha.” R. 26-2 (Daniels Dep. at 30–31) (Page ID #235–36). Other courts have held
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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
similar behavior to constitute a hostile work environment, and I would do the same here. See
Cordero-Suárez v. Rodríguez, 689 F.3d 77, 79, 82–83 (1st Cir. 2012) (holding that a supervisor
who approached an employee’s desk with a work-issued gun and said “I’m going to screw you
up” contributed to a hostile work environment).
I would also reverse the district court’s judgment with respect to Daniels’s termination
claim, particularly because of the genuine issues surrounding pretext. The strongest evidence of
discriminatory pretext are Junk’s “disparaging comments toward females, including, ‘That’s why
I don’t like to hire women,’ ‘That’s why it is a pain to hire women,’ and ‘Working with men is
so much easier than working with women.’” R. 31-3 (Gullett Aff. ¶ 20) (Page ID #407). These
statements are almost direct evidence that Junk made employment decisions on the basis of
gender. At the very least, I believe that they create a genuine issue of material fact on whether
Daniels was actually terminated because of her sex.
Finally, I believe that summary judgment is inappropriate on Daniels’s claim of
intentional infliction of emotional distress (“IIED”). An IIED claim has four elements under
Ohio law: “1) that the actor either intended to cause emotional distress or knew or should have
known that actions taken would result in serious emotional distress to the plaintiff; 2) that the
actor’s conduct was so extreme and outrageous as to go beyond all possible bounds of decency
and was such that it can be considered as utterly intolerable in a civilized community; 3) that the
actor’s actions were the proximate cause of plaintiff’s psychic injury; and 4) that the mental
anguish suffered by plaintiff is serious and of a nature that no reasonable man could be expected
to endure it.” Hayward v. Cleveland Clinic Found., 759 F.3d 601, 619 (6th Cir. 2014) (quoting
Pyle v. Pyle, 463 N.E.2d 98, 103 (Ohio Ct. App. 1983)). There is sufficient evidence of Junk’s
intent to cause emotional distress to permit a reasonable juror to find in Daniels’s favor on the
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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.
first element: Junk stated that he did not like working with women. R. 31-3 (Gullett Aff. ¶ 20)
(Page ID #407). And Junk appeared to know what he was doing when he harassed Daniels.
R. 26-2 (Daniels Dep. at 60–62) (Page ID #265–67). A reasonable juror could also find in
Daniels’s favor on the second, third, and fourth elements: Junk repeatedly demeaned Daniels,
threatened her with a gun, discriminated against her, and pranked her. Daniels visited a doctor
because of “the whole stress of this whole thing” and was prescribed a drug that treats anxiety.
Id. at 57–58 (Page ID #262–63).
In sum, I believe that genuine issues of material fact are present in all of Daniels’s claims.
Therefore I would reverse the judgment of the district court in its entirety.
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