Silvers v. Clay Twp. Police Dept.

[Cite as Silvers v. Clay Twp. Police Dept., 2018-Ohio-2970.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
TINA SILVERS :
:
Plaintiff-Appellant : Appellate Case No. 27867
:
v. : Trial Court Case No. 15-CV-73
:
CLAY TOWNSHIP POLICE : (Civil Appeal from
DEPARTMENT, et al. : Common Pleas Court)
:
Defendants-Appellees :
...........
OPINION
Rendered on the 27th day of July, 2018.
...........
GREGORY TURNER Atty. Reg. No. 0073859, 207 S. Main Street, P.O. Box 339,
Englewood, Ohio 45322
Attorney for Plaintiff-Appellant
JEFFREY C. TURNER, Atty. Reg. No. 0063154, DAWN M. FRICK, Atty. Reg. No.
0069068, and CHRISTOPHER T. HERMAN, Atty. Reg. No. 0076894, 8163 Old Yankee
Street, Suite C, Dayton, Ohio 45458
Attorney for Defendants-Appellees, Clay Township, Clay Township Board of
Trustees, Clay Township Police Department, and John Van Gundy
LAWRENCE E. BARBIERE, Atty. Reg. No. 0027106 and KATHERINE L. BARBIERE,
Atty. Reg. No. 0089501, 5300 Socialville Foster Road, Suite 200, Mason, Ohio 45040
Attorneys for Anthony Scott, Defendant-Appellee
.............
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FROELICH, J.
{¶ 1} Tina Silvers appeals from a judgment of the Montgomery County Court of
Common Pleas, which granted summary judgment in favor of Anthony Scott and John
VanGundy on Silvers’s state-law claims of sex discrimination and sexual harassment
under R.C. Chapter 4112, common law sexual harassment, and intentional infliction of
emotional distress. She also appeals from a judgment in favor of Clay Township and the
Board of Trustees of Clay Township (collectively, the “Clay Township Defendants”) on
those same claims, as well as a claim of negligent hiring and/or retention.
{¶ 2} Silvers claims that the trial court erred in granting summary judgment for all
defendants on her claims of common law sexual harassment and intentional infliction of
emotional distress. She also claims that summary judgment was inappropriate for the
Clay Township Defendants on her claim of negligent hiring/retention. Silvers does not
challenge the summary judgment ruling on her statutory sexual harassment and sex
discrimination claims.
{¶ 3} For the following reasons, the trial court’s judgments will be affirmed.
I. Background and Procedural History
{¶ 4} Construing the evidence in the light most favorable to Silvers, the record
reveals the following facts.
{¶ 5} Silvers graduated from the Great Oaks Police Academy in December 1997.
She worked for several police departments and in private security positions before joining
the Clay Township Police Department (CTPD) in August 2007. Silvers had previously
dated Don Perkins, who was then-chief of CTPD, and she joined CTPD as an auxiliary
officer, an unpaid position, at Chief Perkins’s suggestion. Auxiliary officers were required
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to undergo field training, and then-Officer John VanGundy was assigned as Silvers’s Field
Training Officer (“FTO”). At that time, Silvers had a good relationship with VanGundy.
Silvers did not complete her field training due to medical issues, and in December 2008,
Silvers resigned because of an injury at another job. Silvers considered her first term of
employment with CTPD to be a good experience.
{¶ 6} Silvers remained friendly with VanGundy after her resignation, and they
occasionally texted and talked. Although they never had a sexual relationship, at one
point in 2010, Silvers and VanGundy exchanged nude photographs; VanGundy kept a
printout of the photograph of Silvers in a folder in his desk drawer at work, along with
other sexually explicit photos of other women with whom he claimed to have had sex.
According to VanGundy, he did not see or communicate with Silvers for much of 2012.
{¶ 7} Later in 2012, then-Detective VanGundy suggested to Silvers that she return
to work at CTPD. When VanGundy met with Silvers in his office about her potential
return to CTPD, he pulled the folder containing the sexually explicit photos out of his desk.
He took his photo of Silvers from the folder, said he now trusted her, but did not trust the
other women, and shredded Silvers’s photo in her presence. VanGundy also indicated
that he could make sure that Silvers got a job, but that she would have to “give it up” if
she were hired. VanGundy had previously told Silvers that his “bucket list” included
having sex with an older woman.1
{¶ 8} After VanGundy’s statements, Silvers applied for a CTPD position. She
understood that police officers were hired by the Board of Trustees, but the Trustees
1
We have found nothing in the record to specify the age difference between Silvers and
VanGundy, although this statement, construed in Silvers’s favor, suggests that VanGundy
was younger than Silvers.
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generally followed the recommendation of the chief.
{¶ 9} Silvers was rehired by CTPD as an auxiliary officer on October 10, 2012, and
she was required to complete a field training program; Officer Anthony Scott was
assigned as her FTO. According to Chief Perkins, field training had a guideline of 240
hours of “on-the-road” training, although some officers could complete their training in
fewer hours. Due to her prior employment with CTPD, Perkins expected Silvers to
complete her training in under 240 hours; upon completing training, Silvers would be
qualified for a paid position. Silvers did not receive credit toward training for doing
paperwork around the office or other assignments within the office.
{¶ 10} Chief Perkins retired on December 29, 2012. By that time, VanGundy had
been promoted to Lieutenant, and Scott had been promoted to Sergeant. Prior to
Perkins’s departure, Silvers did not experience any significant problems with Scott or
VanGundy. Scott and VanGundy were placed in charge until a new safety director was
hired. John Simmons was hired as Safety Director, serving a dual role as Chief of Police,
in February 2013.
{¶ 11} Silvers alleged that, after Chief Perkins’s retirement, Scott and VanGundy
began subjecting her to a sexually hostile work environment in which she was treated
differently than male officers. Silvers further alleged that Simmons joined Scott and
VanGundy in this treatment and allowed Scott and VanGundy to continue in it.
{¶ 12} Silvers identified several instances where she felt she was treated poorly by
Scott and VanGundy. In March 2013, Silvers used the restroom at work and had blood
in her urine. Silvers informed VanGundy of the situation and that she needed to go to
the hospital. VanGundy told her that they needed to tell her sergeant (Scott), and they
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located Scott at the CTPD garage with Simmons and another officer. VanGundy
shouted to Scott that Silvers was “pissing blood” and needed to go home. Scott
responded, “Are you sure it’s not your monthly?” Silvers replied, “I think I’d know the
difference” and left for the hospital. Subsequent to this event, Scott repeatedly
commented to Silvers, “My name is Tina and my pussy hurts.”
{¶ 13} In July or August 2013, new uniform pants were ordered for the officers.
Scott asked Silvers what size panties she had ordered; Silvers responded with her pants
size. Around the same time, Scott asked Silvers, in front of other officers, if she “wiped
her ass” the same as the rest of them, front to back or side to side, and whether that was
the “funk” he smelled.
{¶ 14} Also in July or August 2013, Silvers was working a traffic detail on
Interstate 70 when a Jeep rear-ended a flatbed truck and became sandwich between the
truck and a semi. Silvers notified the CTPD dispatcher and the Brookville police
department; Scott was the first to arrive. Scott did not have his radio, and he grabbed
Silvers’s radio off her chest and was “pulling [Silvers] around” until Silvers gave her radio
to him. Silvers was told to relocate her cruiser and to go down the highway to move
cones to get traffic around the accident. When she was in the process of moving cones,
Scott “jump[ed] up and down” and was “screaming and hollering.” (Silvers Dep. at 144-
145.) When Silvers went back to see what Scott wanted, Scott told her to “get back in
your f**king car. F**king idiot.” (Id. at 145.)
{¶ 15} Scott tried to write-up Silvers for missing work when her sister passed away
from cancer and her absence had been approved in advance. Silvers stated in her
deposition that she lost weight after her sister died of cancer. In her affidavit, she
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attributes much of her 30-pound weight loss to the harassment. After Silvers began
losing weight, Scott asked, “What’s the matter, do you have cancer or something?”
{¶ 16} On September 5, 2013, Scott ordered Silvers to pick up a prisoner in Preble
County. When she arrived, she had to wait for a Lewisburg unit to bring the prisoner.
However, contraband was found on the prisoner, so the prisoner remained in Preble
County and the pick-up did not occur. Silvers drove back to CTPD, and Scott demanded
she perform other work without a meal break. Silvers took a meal break, did a couple
traffic stops and some vacation house checks, and returned to CTPD. Upon her return,
Scott screamed at her that she “put all of this mileage on [his] car and used [his] gas, and
[she] didn’t do traffic stops and only did three vacation house checks and not seven or
eight. This is terribly unprofessional and unacceptable.” Scott further yelled that “this
[was] f**king unacceptable,” that she “had enough time for this shit,” and “why don’t you
just tell me I’m sorry, sir, and I’ll fucking do better next time?” (Silvers Dep. at 158-159.)
Silvers tried to explain the problems she encountered that evening, and Scott kicked a
trash can that hit her leg. Silvers stated in her deposition that she was so upset about
the trash can incident that she forgot about mandatory training scheduled for September
11 for which she had signed up.
{¶ 17} Silvers did not inform the Clay Township Trustees about any of the incidents
at CTPD. Silvers wanted to report Scott’s behavior to the Trustees, but was denied the
opportunity to do so. After Simmons was appointed Safety Director, officers were
required to submit a written request to speak with Trustees on a pre-printed form that was
kept in the road room. Simmons testified in his deposition that a written request
addressed to him was required for any officer to see the Trustees. While there was no
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written policy requiring the requests to go through Simmons, he confirmed that that was
the practice in place. Silvers completed the form twice requesting to meet with the
Trustees, once in March 2013 and once in July or August 2013. Simmons told her she
was denied from seeing the Trustees.
{¶ 18} At some point after the highway accident, Silvers interviewed with the
Brookville Police Department. (Silvers stated that she had told Scott and Simmons about
the opportunity, and they both encouraged her to go. Silvers Dep. at 165.) According
to Silvers, during the interview, Brookville Chief of Police Doug Jerome “just come right
out and asked me –– he said, I just need to ask you this: Was you that female on the
highway?” Silvers was embarrassed and admitted that she was, and she confided some
of the problems she was experiencing with CTPD. Silvers asserted, however, that she
did not disparage the department. She further stated that she did not want Jerome to
communicate her statements to CTPD.
{¶ 19} Sometime afterward, Simmons and Jerome rode together to a meeting, and
Jerome told Simmons that he (Simmons) should have a conversation with Silvers about
things that were going on with her at work. Simmons described this conversation as
revealing that Silvers “disparaged the [CTPD] field training to another police agency.”
This prompted Simmons to approach Silvers and say “We need to talk about some of the
things that you're going through but you're going to have to follow your chain of
command.” (Silvers Dep.) According to Silvers, because Silvers’s “chain of command”
was Scott and Simmons, who had previously denied her from seeing the Trustees, she
responded, “It is what it is.” (Id. at 169-170.)
{¶ 20} On September 16, 2013, Scott wrote a final evaluation report, which was
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critical of Silvers. The same day, he wrote a memorandum to Simmons requesting that
Silvers be “probationary released.” Silvers was terminated on September 18, 2013.
{¶ 21} The next day, Silvers filed a complaint with the Ohio Civil Rights
Commission (OCRC), which was also filed with the U.S. Equal Employment Opportunity
Commission (EEOC). On July 17, 2014, the OCRC issued a letter of determination,
finding that Silvers was released during probation for performance issues. The OCRC
found no probable cause for the Commission to issue a complaint against CTPD for an
unlawful discriminatory practice. On October 7, 2014, the EEOC adopted the findings of
the OCRC.
{¶ 22} Simmons separately investigated Scott’s conduct after Silvers filed her
OCRC complaint. Simmons believed Scott’s behavior related to the highway accident
was “egregious enough” to warrant more than a verbal or written warning. (Simmons
Dep. at 78.) A hearing was held before the Board of Trustees on October 15, 2013. It
was determined that Scott violated CTPD Policy and Procedure 1.02 (unbecoming
conduct). Scott was demoted from sergeant to officer, placed on probation for one year,
and required to attend anger management and sensitivity training.
{¶ 23} The record reflects that, prior to his most recent employment with CTPD,
Scott resigned from the Brookville Police Department in lieu of receiving a probationary
release; Scott stated in his deposition that he was “too aggressive for the City of
Brookville.” (Scott Dep. at 9.) In July 2010, the Brookville Chief wrote on CTPD’s
reference form that Scott was “aggressive patrol” and not eligible for rehire. At one point
prior to Chief Perkins’s retirement, Scott received discipline from CTPD related to an off-
duty incident at a dog park where Scott drew his service weapon on (but did not shoot) a
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dog that was fighting with his dog; Scott pled guilty in court to disorderly conduct related
to that incident.
{¶ 24} On January 6, 2015, Silvers filed a complaint in the Montgomery County
Court of Common Pleas against CTPD, VanGundy, Scott, and the five trustees of Clay
Township. She claimed (1) sex discrimination and sexual harassment in violation of R.C.
Chapter 4112, (2) sex discrimination and sexual harassment in violation of Title VII of the
Civil Rights Act of 1990, (3) procedural and substantive due process violations under the
United States Constitution, (4) violation of her Equal Protection rights under the United
States Constitution, (5) common law sexual harassment; (6) negligent hiring and retention
of VanGundy and Scott, (7) intentional infliction of emotional distress, (8) negligent
infliction of emotional distress, and (9) municipal liability. VanGundy and Scott were
named in their individual and official capacities. Her amended complaint, filed February
5, 2016, alleged the same claims and added Simmons as a party-defendant.
{¶ 25} On March 4, 2015, the case was removed to federal district court. While
the case was pending in federal court, Silvers filed a second amended complaint, naming
Clay Township, Board of Trustees of Clay Township, VanGundy, Scott, and Simmons as
defendants. The second amended complaint omitted the due process claim and the
negligent infliction of emotional distress claim.
{¶ 26} All defendants moved for summary judgment. On October 28, 2016, the
federal district court granted summary judgment to all defendants on Silvers’s Title VII
sex discrimination and sexual harassment claims, as well as her claims under the U.S.
Constitution. As to the sex discrimination claims, the court concluded that Silvers failed
to establish a prima facie case of discrimination, because she did not demonstrate that
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she was qualified for a full- or part-time position. The court noted that, even if she had
been able to satisfy that burden, her claim would still have failed because “she has no
evidence to disprove the stated non-discriminatory reason for not hiring [her].” The
district court also granted summary judgment on Silvers’s sexual harassment claim,
concluding that the alleged incidents “simply do not rise to the level of severe or
pervasive.”
{¶ 27} The district court declined to exercise supplemental jurisdiction over
Silvers’s state law claims, and it remanded the matter to state court. In March 2017,
Silvers filed a motion in the Montgomery County Common Pleas Court to reactivate the
case.
{¶ 28} On June 23, 2017, Scott filed a motion for summary judgment on Silvers’s
state law claims. VanGundy and the Clay Township Defendants also filed a joint motion
for summary judgment. Silvers opposed the motions. She conceded that, due to the
federal district court’s judgment, the doctrines of res judicata and/or collateral estoppel
barred her sex discrimination and sexual harassment claims under R.C. Chapter 4112.
She asserted, however, that those doctrines did not affect her common law sexual
harassment, intentional infliction of emotional distress, or negligent hiring and retention
claims.
{¶ 29} Prior to rulings by the trial court on the summary judgment motions, Silvers
dismissed Simmons from the action, with prejudice.
{¶ 30} On November 7, 2017, the trial court granted Scott’s, VanGundy’s, and the
Clay Township Defendants’ motions for summary judgment. Silvers appeals from the
trial court’s rulings.
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II. Summary Judgment Standard
{¶ 31} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no
genuine issue as to any material fact, (2) the moving party is entitled to judgment as a
matter of law, and (3) reasonable minds, after construing the evidence most strongly in
favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor
Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving
party carries the initial burden of affirmatively demonstrating that no genuine issue of
material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526
N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials
of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary
judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264 (1996).
{¶ 32} Once the moving party satisfies its burden, the nonmoving party may not
rest upon the mere allegations or denials of the party’s pleadings. Dresher at 293; Civ.R.
56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits
or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is
a genuine issue of material fact for trial. Dresher at 293. Throughout, the evidence
must be construed in favor of the nonmoving party. Id.{¶ 33} We review the trial court’s ruling on a motion for summary judgment de
novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, ¶ 42.
De novo review means that this court uses the same standard that the trial court should
have used, and we examine the evidence, without deference to the trial court, to
determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond,
2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
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III. Negligence: Common Law Sexual Harassment
{¶ 34} In her second amended complaint, Silvers claimed that “Defendants had a
common law duty to exercise reasonable care to prevent and correct any sexual
harassment of employees by Clay Township and Clay Township Police Department by
supervisors.” She alleged that VanGundy and Scott verbally and physically sexually
harassed her, and that their actions were foreseeable. Further, she alleged that
“Defendants placed Lieutenant VanGundy and Sergeant Scott, without proper inquiry and
without proper training, in a position to exercise actual or apparent authority over Ms.
Silvers, and failed to exercise reasonable care to train employees of Clay Township Police
Department to prevent, report, and correct sexually harassing behavior.”
{¶ 35} The Ohio Supreme Court recognized the common law tort of sexual
harassment in Kerans v. Porter Paint Co., 61 Ohio St.3d 486, 575 N.E.2d 428 (1991).
Kerans failed to provide the elements of the tort of sexual harassment, but appellate
courts have applied the elements of a R.C. Chapter 4112 sexual harassment claim. E.g.,
Harmon v. GZK, Inc., 2d Dist. Montgomery No. 18672, 2002 WL 191598, * 8 (Feb. 8,
2002), citing Seiber v. Wilder, 2d Dist. Greene No. 94 CA 32, 1994 WL 558969 (Oct. 12,
1994).
{¶ 36} To establish a claim of hostile-environment sexual harassment under R.C.
Chapter 4112, a 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
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personnel, knew or should have known of the harassment and failed to take immediate
and appropriate corrective action.” Hampel v. Food Ingredients Specialties, Inc., 89 Ohio
St.3d 169, 176-177, 729 N.E.2d 726 (2000).
{¶ 37} “In 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.” Id. at paragraph five of the syllabus.
Relevant circumstances may include (1) the frequency of the discriminatory conduct, (2)
the severity of the conduct, (3) whether the conduct was physically threatening or
humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably
interfered with an employee’s work performance. Id. at 180.
{¶ 38} For a common law sexual harassment claim, many courts have also
required plaintiffs to prove the additional element that “the employee has a past history of
sexually harassing behavior about which the employer knew or should have known.”
Kilgore v. Ethicon Endo-Surgery, Inc., 172 Ohio App.3d 387, 2007-Ohio-2952, 875 N.E.2d
113, ¶ 35 (1st Dist.). Silvers claims that this additional requirement should not apply,
because the alleged harassment was committed by her direct supervisor, Scott.
{¶ 39} At the outset, Silvers acknowledges in her appellate brief that a claim for
common law sexual harassment requires the plaintiff to establish the elements set forth
in Hampel, i.e., the same elements as for a statutory hostile environment sexual
harassment claim. Silvers did not oppose the motions for summary judgment on her
statutory sexual harassment claims under R.C. Chapter 4112. The trial court granted
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summary judgment to all defendants on Silvers’s sexual harassment claims under R.C.
Chapter 4112, and Silvers has not challenged that ruling on appeal. Silvers asserts, but
does not explain, how her common law sexual harassment claim differs from her statutory
claim, such that the common law claim should survive whereas her statutory claim fails.
{¶ 40} Regardless, we agree with the trial court that Silvers has not demonstrated
a genuine issue of material fact that the conduct of which she complains was “severe or
pervasive” as those terms have been defined. In reaching its conclusion, the trial court
relied on and quoted the reasoning provided by the federal district court in granting
summary judgment on Silvers’s Title VII sexual harassment claim. The district court
stated:
Plaintiff’s Second Amended Complaint accuses VanGundy of two
incidents – the incident in his office where prior to being appointed as
Auxiliary Officer, VanGundy said she would have to “put out” if taken on and
the “pissing blood” incident. The first of these incidents, an unfulfilled quid
pro quo demand, is part of Plaintiff’s hostile work environment claim.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754 (1998) (“Because
Ellerth's claim involves only unfulfilled threats, it should be categorized as a
hostile work environment claim which requires a showing of severe or
pervasive conduct.”). Plaintiff also asserts Scott on “numerous occasions”
mimicked her saying, “My name is Tina and my pussy hurts.” She alleges
that he called her an “idiot,” modified with an expletive. She claims that he
mocked her weight loss, recalling Plaintiff’s sister’s death from cancer.
She claims that he crassly used a metaphor concerning personal hygiene.
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She describes that he spoke with expletives to her on her last day. All of
this over the course of nearly a year.
The Court is mindful that, rather than considering each event
complained of in isolation, it must consider the totality of the circumstances
in determining whether the harassment was sufficiently severe and
pervasive. Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir.1997).
Specifically, the Court must consider “the frequency of the discriminatory
conduct; its severity; whether it [was] physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interfere[d] with
an employee’s performance.” Harris [v. Forklift Sys., Inc.], 510 U.S. [17,
23 (1993)]. “[S]imple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998). The Court may consider the effect of the incidents on
the employee’s psychological well-being. Harris, 510 U.S. at 23. Randolph
v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006). Even
incidents occurring consistently over a period of four months, are “merely
offensive” and are insufficient to support liability. Black v. Zaring Homes,
Inc., at 826; see Burnett v. Tyco Corp., 203 F.3d 980 (6th Cir.2000); see
also Bowman v. Shawnee State Univ., 220 F.3d 456, 463-65 (6th Cir. 2000)
and Mahan v. Peake, No. 07-15223, 2009 WL 174130, at *6 (E.D. Mich.
Jan. 23, 2009).
Considering all of the incidents Plaintiff describes as allegations of
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sexual harassment, they simply do not rise to the level of severe or
pervasive necessary to succeed on a cause of action. There is no
evidence that Plaintiff’s interactions on the highway would not have
occurred “but for” Plaintiff’s gender. See Williams v. Gen. Motors Corp.,
187 F.3d 553, 565 (6th Cir. 1999) (“[plaintiff] ‘must show that but for the fact
of her sex, she would not have been the object of harassment.’ Henson v.
City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)”). On its face, the
highway incident was a supervisor upset at his trainee.
Similarly, Plaintiff has not pointed to a single incident wherein a male
employee was treated differently after the death of a loved one. While
exceedingly boorish, it has not been linked to Plaintiff’s gender. Neither
are crass metaphors concerning how one cleans oneself necessarily
motivated by gender.
Silvers does assert that male officers were not treated as poorly as
her, basing this on her observing Scott yell at Officer Hodge a few times.
This, however, is actually similar to what she describes of herself. Silvers
Dep., Doc. 28-2, PageID 556. Moreover, absent a foundation of
misconduct or under-performance in her presence, there is a lack of
personal knowledge on Silvers’s part regarding what transpired between
Scott and other officers outside of her presence.
Even if these incidents were gender motivated, combining them with
Plaintiff’s other comments, including VanGundy’s insistence that Plaintiff
“would have to put out” if hired and Scott’s incessant incantation, “My name
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is Tina and my pussy hurts,” they do not rise to the level of a hostile work
environment.
The trial court agreed with the federal district court’s analysis and found that the Clay
Township Defendants, VanGundy, and Scott were entitled to summary judgment on
Silvers’s common law sexual harassment claim. The trial court found that “the incidents
complained of were not sufficiently severe or pervasive to alter the conditions of [Silvers’s]
employment and create an abusive working environment.”
{¶ 41} Construing the evidence in the light most favorable to Silvers, Silvers has
presented evidence that Scott grabbed her by her radio at the accident scene, twice
cursed at her, kicked a trash can toward her, made an extremely insensitive comment
about her weight loss, and made other crude comments. Silvers also presented
evidence that VanGundy insensitively addressed the situation when she had blood in
urine. However, considering the totality of the circumstances, we cannot find that a
genuine issue of material fact exists as to whether the offending conduct rises to the level
of “severe or pervasive” harassment, as defined by Supreme Court authority. As stated
by the United States Supreme Court, “simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the
terms and conditions of employment.” Faragher, 524 U.S. at 788, 118 S.Ct. 2275, 141
L.Ed.2d 662. We acknowledge that sexual harassment cases are fact-specific and
cannot be resolved with mathematical precision. Nevertheless, even construing the
facts in Silvers’s favor, given the current authority on “severe or pervasive” conduct, the
trial court properly granted summary judgment to all defendants on Silvers’s common law
sexual harassment claim.
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IV. Intentional Infliction of Emotional Distress
{¶ 42} Count Six of Silvers’s second amended complaint alleged intentional
infliction of emotional distress. She alleged that the “conduct of Defendants” was
extreme and outrageous and caused her severe emotional distress. In her
memorandum in opposition to summary judgment, Silvers focused solely on Scott’s
behavior. She also discusses only Scott’s behavior on appeal. Accordingly, we
summarily affirm the trial court’s grant of summary judgment in favor of VanGundy on this
claim, and we will focus solely on Scott’s behavior.
{¶ 43} “One who by extreme and outrageous conduct intentionally or recklessly
causes serious emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm.” Yeager v.
Local Union 20, 6 Ohio St.3d 369, 453 N.E.2d 666 (1983), syllabus, abrogated on other
grounds by Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051.
“In order to recover damages for the intentional infliction of serious
emotional distress, four elements must be proved: a) 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;
b) that the actor’s conduct was extreme and outrageous, that it went beyond
all possible bounds of decency and that it can be considered as utterly
intolerable in a civilized community; c) that the actor’s actions were the
proximate cause of the plaintiff’s psychic injury; and d) that the mental
anguish suffered by plaintiff is serious and of a nature that no reasonable
person could be expected to endure it.”
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Thomas v. Progressive Casualty Ins. Co., 2011-Ohio-6712, 969 N.E.2d 1284, ¶ 12 (2d
Dist.), quoting Pyle v. Pyle, 11 Ohio App.3d 31, 463 N.E.2d 98 (8th Dist.1983), paragraph
two of the syllabus.
{¶ 44} A claim for intentional infliction of emotional distress must be based on more
than “mere insults, indignities, threats, annoyances, petty oppressions, or other
trivialities.” Yeager at 375; Rogers v. Olt, 2d Dist. Miami No. 2017-CA-21, 2018-Ohio-
2110, ¶ 26. The Ohio Supreme Court has explained:
“The rough edges of our society are still in need of a good deal of filing
down, and in the meantime plaintiffs must necessarily be expected and
required to be hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate and unkind. There is no
occasion for the law to intervene in every case where someone’s feelings
are hurt. There must still be freedom to express an unflattering opinion,
and some safety valve must be left through which irascible tempers may
blow off relatively harmless steam. See Magruder, Mental and Emotional
Disturbance in the Law of Torts, [49] Harvard Law Review 1033, 1053
(1936). * * * ”
Reamsnyder v. Jaskolski, 10 Ohio St.3d 150, 153, 462 N.E.2d 392 (1984), quoting
Comment d to Section 46 of the Restatement of the Law 2d, Torts (1965) 71, 73.
{¶ 45} In her memorandum in opposition to Scott’s motion for summary judgment,
Silvers describes Scott’s offending behavior as follows:
In front of multiple police officers, firefighters, and motorists, Scott yanked a
microphone from Silvers and pulled her with it, screamed she was a “fucking
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idiot” and to “get back in your fucking car.” Silvers Dep. 143-45. Simmons
described Scott’s behavior as so “egregious” that he was demoted for that
incident. Simmons Dep. 77-78. But that was only one of many incidents.
After losing her sister to cancer, Scott addressed her weight loss as “do you
have cancer or something?” Silvers Aff. ¶ 5. While yelling at and berating
Silvers, Scott kicked a trash can that hit her. Silvers Dep. 158-59. After she
informed Defendants she was urinating blood, Scott mocked her on
“numerous” occasions saying “my name is Tina and my pussy hurts.” Id.
at 238-39.
{¶ 46} In granting summary judgment to Scott, the trial court reasoned:
After a review of the depositions and affidavits filed, the Court finds that the
comments complained of were crude, but not beyond all possible bounds
of decency. Further, there is no evidence that Plaintiff suffered severe
emotional distress as a proximate result of Scott’s conduct. Plaintiff, in her
deposition, stated she had not gotten any treatment or counseling for any
issues since she was released as an auxiliary officer. She later claims in
her affidavit that she suffered severe emotional distress. She states she
went to the hospital several times, but offers no information as to why she
went to the hospital. The Court finds that Scott is entitled to summary
judgment on the intentional infliction of emotion distress claim.
{¶ 47} On appeal, Silvers argues that the trial court erred in concluding that Scott’s
conduct did not rise to the level of extreme and outrageous. She argues that courts have
denied summary judgment where conduct was far less outrageous or egregious than
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Scott’s, citing Stanfield v. United States Steel Corp., 9th Dist. Lorain No. 12CA10213,
2013-Ohio-2378; Reamsnyder, 10 Ohio St. 3d 150, 462 N.E.2d 392, and Nicolazzo v.
Yoingco, 149 Ohio Misc.2d 44, 59, 2007-Ohio-7269, 898 N.E.2d 94 (Clermont C.P.2007).
In addition, Silvers contends that there was evidence that she suffered severe emotional
distress and sought medical treatment due to Scott’s conduct.
{¶ 48} Initially, we agree with Silvers that there is a genuine issue of material fact
as to whether she suffered “severe mental anguish.” Silvers stated in her affidavit, “As
a result of the hostile work environment, sexual harassment, and denial of paid positions,
I suffered severe emotional distress. I experienced anxiety and rapid weight loss. In
the late spring of 2013, I lost over thirty pounds. I went to the hospital several times.”
Silvers Aff. at ¶ 7. In interrogatories, Silvers was asked to identify where she had
received treatment for physical or mental complaints or conditions related to the incidents
alleged in her complaint; she responded that she had sought medical treatment from
Good Samaritan Hospital and possibly Wright Patterson Medical Center.
{¶ 49} We note that there is some evidence in the record that creates arguable
questions about whether Silvers did, in fact, suffer severe mental anguish. The record
does not contain details of her hospital treatment; Silvers’s answer regarding hospital
treatment could be referring to her treatment for blood in her urine, as opposed to
emotional distress. In addition, many of the events of which Silvers complains occurred
after late spring 2013, suggesting that the weight loss may be more associated with her
sister’s death than any harassment. Nevertheless, at the summary judgment stage, we
must construe the evidence in the light most favorable to Silver. Doing so, we cannot
conclude, as a matter of law, the Silvers did not suffer severe emotional anguish.
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{¶ 50} Regardless, the conduct of which Silvers complains does not constitute
extreme and outrageous conduct as that term is currently defined by the Supreme Court.
The Supreme Court has emphasized that “extreme and outrageous” is a high standard,
which is not reached with “mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” Yeager, 6 Ohio St.3d at 375, 453 N.E.2d 666.
Accepting as true that Silvers was cursed and yelled at by Scott and that he made the
comments about her weight, pants size, and bleeding, Scott’s alleged conduct, while
offensive, ugly, and disrespectful, did not “go beyond all possible bounds of decency”
such that it “can be considered as utterly intolerable in a civilized society.” Id.{¶ 51} We find the cases cited by Silvers to be distinguishable. In Stanfield, 9th
Dist. Lorain No. 12CA10213, 2013-Ohio-2378, the plaintiff brought claims of retaliatory
discharge due to her filing of a workers’ compensation claim and intentional infliction of
emotional distress. The trial court granted summary judgment to her employer on both
claims. The Ninth District reversed on both claims, finding that questions of material
fact remained as to whether the employee was fired because she filed a worker’s
compensation claim and the extent to which she suffered emotional distress due to
the way she was treated by management.
{¶ 52} Reamsnyder, 10 Ohio St.3d 150, 462 N.E.2d 392, which was decided
shortly after Yeager, involved statements made by a rental agent for a rental car
company, which provided a vehicle to the plaintiff’s wife after an automobile accident.
In telephone conversations with the plaintiff, the agent threatened to tear the plaintiff’s
face off and informed the plaintiff that the rental car had been reported to the police
as stolen. The Supreme Court concluded, with little discussion, that the agent’s
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conduct was sufficient, for purposes of Civ.R. 12(B)(6), to state a claim of intentional
infliction of emotional distress.
{¶ 53} Finally, in Nicolazzo, 149 Ohio Misc.2d 44, 2007-Ohio-7269, 898 N.E.2d 94,
the plaintiffs owed the defendant money for the purchase of a puppy. The plaintiffs
alleged that the defendant “repeatedly called and e-mailed them, using threatening and
outrageous language. The plaintiffs further allege that the defendant posted websites
and other messages on the Internet that defamed the plaintiffs, including a copy of [a
plaintiff’s] driver’s license and a mock wanted poster.” Addressing the matter first under
Civ.R. 12(B)(6), the trial court found that “whether the harm suffered by the plaintiffs in
this case rises to the high standard required for a showing of intentional infliction of
emotional distress is a jury question.” Id. at ¶ 27. Considering the matter under Civ.R.
56, the trial court denied the motion due to the defendant’s failure to present any evidence
on this claim or to mention the claim in his motion. Id. at ¶ 28.
{¶ 54} None of the authority that Silvers cites persuades us that a genuine issue
of material fact exists as to whether Scott’s conduct was “extreme and outrageous.”
Unlike here, the plaintiff in Stanfield presented evidence that, when construed in her
favor, supported a claim of retaliatory discharge; Silvers’s claims fail to meet the
standards for sexual harassment or sex discrimination. The allegations in
Reamsnyder involved a threat of physical harm and a statement that the plaintiff’s
rental car had been reported to the police as stolen, thus implying that the plaintiff had
been accused of a crime; these statements are factually distinguishable and more
egregious than those before us. Finally, the allegations in Nicolazzo, though not well
fleshed out, suggest on-going telephone and Internet harassment with “threatening
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and outrageous” language. Scott’s conduct, while embarrassing and upsetting to
Silvers, did not rise to the level that current law requires.
{¶ 55} Silvers has presented evidence that, over the course of many months,
Scott made several inappropriate comments to her. She presented evidence that he
twice cursed at her, kicked a trash can toward her, made an extremely insensitive
comment about her weight loss, and made other crude comments. Nevertheless,
these actions simply do not reach the high legal standard required for “extreme” and
“outrageous.”
V. Negligent Hiring and Retention
{¶ 56} Count Five of Silvers’s second amended complaint alleged that “defendants
had a duty to exercise reasonable care in the hiring and retention of Lieutenant VanGundy
and Sergeant Scott.” She alleged that VanGundy had a history of sexual harassment
and that Scott had a history of committing acts of violence. Silvers did not address
VanGundy in her response to the Clay Township Defendants’ motion for summary
judgment on this claim, and on appeal, she again focuses only on Scott. We will limit
our discussion to Scott, as well.
{¶ 57} To establish a claim of negligent hiring or retention, a plaintiff must prove
(1) the existence of an employment relationship, (2) the employee’s incompetence, (3)
the employer’s actual or constructive knowledge of such incompetence, (4) the
employee’s act or omission causing the plaintiff’s injuries, and (5) the employer’s
negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries.
Sheldon v. Kettering Health Network, 2015-Ohio-3268, 40 N.E.3d 661, ¶ 41 (2d Dist.);
see also Emswiler v. Bodey, 2d Dist. Champaign No. 2012 CA 3, 2012-Ohio-5533, ¶ 53.
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In the context of negligent hiring, supervision, or retention, liability on behalf
of the employer results by way of its own negligence in selecting a person
to employ or allowing a person to continue to work, where the employer,
knows or should have known of the hired individual's violent or dangerous
propensities. The focus of these claims is on the employer’s knowledge of
the hired individual’s violent, criminal, or tortious propensities and whether
such knowledge would have prevented the employment relationship. At a
very minimum, a plaintiff must show that the employer knew or should have
known of the hired person’s criminal or tortious propensities. The
foreseeability of a criminal act depends upon the knowledge of the
employer, which must be determined by the totality of the circumstances,
and it is only when the totality of the circumstances are “somewhat
overwhelming” that the employer will be liable. “The mere fact that
misconduct on the part of another might be foreseen is not of itself sufficient
to place the responsibility upon the defendant * * * it is only where the
misconduct was to be anticipated, and taking the risk of it was
unreasonable, that liability will be imposed.”
(Citations omitted.) Jackson v. Hogeback, 12th Dist. Butler No. CA2013-10-187, 2014-
Ohio-2578, ¶ 34.
{¶ 58} In granting the Clay Township Defendants’ motion for summary judgment,
the trial court reasoned:
Plaintiff argues that Scott had a history of aggression that Clay
Township overlooked before and after he was hired. Plaintiff asserts that
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he was released from his probation by Brookville for being “too aggressive”
and was not eligible for rehire. Plaintiff also cites an incident on May 2,
2012 where Scott pled guilty to disorderly conduct for pulling a gun on a dog
at a dog park. Plaintiff argues that Clay Township knew about this history
because Clay Township had his personal records.
Plaintiff cites to Scott’s application for the Clay Township Police
Department dated July 2, 2010 wherein the Brookville Police Department
described Scott’s work performance as “***active, aggressive patrol, good
paperwork” and the word NO was circled as to the question “Would you
rehire, if able?” The Court finds that this document does not create a
dispute of fact as to Scott being competent. The document states he had
“aggressive patrol” and that Brookville would not rehire him, but does not
state anything that would call into question his competence.
Plaintiff also cites the Court to Clay Township Police Department
Supervisor’s Complaint Form dated May 3, 2012 where Scott was
disciplined for an incident at a dog park where he drew his gun and later
plead [sic] guilty to disorderly conduct for the incident. The Court does not
find that this incident creates a dispute of fact as to Scott’s competence.
Further, the incident did not occur during a time where Scott was on duty.
The Court finds, based upon the evidence presented, that Plaintiff
has failed to show that a dispute of fact exists that Scott was incompetent.
The evidence presented does not show that he was incompetent. Further,
Plaintiff has failed to show that a dispute of fact exists as to Clay Township’s
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knowledge of Scott’s alleged incompetence. The Court finds that
Defendants[ ] are entitled to summary judgment on this claim. Defendants’
Motion for Summary Judgment is GRANTED as to this claim.
(Footnotes omitted.)
{¶ 59} Construing the evidence in the light most favorable to Silvers, the Clay
Township Defendants were aware that Scott had previously been evaluated by the
Brookville Police Department as too “aggressive.” The documentation from Brookville or
other evidence in the record did not explain what it meant by the term “aggressive,” why
the department had reached that conclusion, or provide any examples of aggressive
conduct by Scott. Without more, this evidence does not establish that the Clay Township
Defendants knew or should have known that Scott was incompetent to serve as a police
officer or to supervise other officers. The Clay Township Defendants are entitled to
summary judgment on a claim that they negligently hired Scott.
{¶ 60} Prior to Silvers’ having issues with Scott, Scott was disciplined by CTPD for
the incident at the dog park while Scott was off-duty. This incident, alone, does not
create a genuine issue of material fact as to whether Scott was incompetent to be a police
officer due to alleged aggressiveness. There is no evidence that Scott had a known
history of aggressive or harassing behavior with co-workers, or that the Clay Township
Defendants had actual or constructive knowledge that Scott had a propensity for
engaging in the kind of behavior of which Silvers complains.
{¶ 61} The trial court did not err in granting summary judgment on Silvers’s
negligent hiring or retention claim.
VI. Conclusion
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{¶ 62} Silvers’s assignments of error are overruled. The trial court’s judgment will
be affirmed.
.............
WELBAUM, P. J. and TUCKER, J., concur.
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