COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72069 ROBIN MOTLEY : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION FLOWERS & VERSAGI COURT : REPORTERS, ET AL. : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-290713 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: MICHAEL SHAFRAN (#0028991) Michael Shafran & Associates 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: CHRISTOPHER DeVITO (#0047118) Morganstern, MacAdams & DeVito Co., L.P.A. Burgess Building - Suite 400 1406 West Sixth Street Cleveland, Ohio 44113 SPELLACY, J.: Plaintiff-appellant Robin Motley ( appellant ) appeals from the grant of summary judgment in favor of defendants-appellees -2- Flowers & Versagi Court Reporting, Inc. and Frank Versagi ( Versagi ). Appellant had filed a complaint against Versagi for sexual harassment and hostile work environment, intentional infliction of emotional distress, negligent infliction of emotional distress, discrimination based on sex, discrimination based on race and for punitive damages. Appellant assigns the following error for review: I. IT WAS ERROR FOR THE TRIAL COURT TO GRANT SUMMARY JUDGMENT PURSUANT TO OHIO CIVIL RULE OF PROCEDURE 56(C). Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. First, it must be noted that appellant failed to include a statement of the facts in her brief but instead directed this court to the facts as set forth in her brief in opposition to Versagi's motion for summary judgment and appellant's amended complaint. App.R. 16(A)(6) mandates that an appellant include a statement of facts in the appellate brief. This court will not adopt portions of the record as a substitute for a conforming brief. Although appellant has filed a nonconforming brief, her statement of the case will be accepted as the statement of facts for purposes of review. II. On June 8, 1995, appellant filed a complaint against Versagi for one count of sexual discrimination and employer retaliation in violation of R.C. Chapter 4112. After Versagi's answer was filed, -3- appellant was granted leave to file an amended complaint. In her amended complaint, appellant averred that she is a member of two protected classes as she is a female and an African-American. She alleged Frank Versagi subjected her to sexual harassment by asking for dates, requested appellant engage in sexual relations with him, made offensive sexual remarks and asked sexually related questions, and that Frank Versagi groped and touched appellant in an unwelcome and inappropriate manner. Appellant stated that she was demoted after objecting to Frank Versagi's behavior. Appellant alleged Frank Versagi referred to her as nigger and discriminated against her with regard to her employment. Appellant brought a claim for sexual harassment and the creation of a hostile work environment in violation of R.C. Chapter 4112. The complaint included counts for both intentional and negligent infliction of emotional distress. Appellant also brought counts for discrimination based on sex and race. Appellant asked that punitive damages be awarded. Versagi filed a motion for summary judgment which was supported by Frank Versagi's affidavit. In the affidavit, Frank Versagi averred appellant was hired as a receptionist in September of 1994. Appellant was not qualified for a position as a court reporter as she never attained a sufficient stenographic speed. After appellant was employed by Versagi for two weeks, Frank Versagi inquired of appellant if she was a man. Versagi asked because of questions about appellant from independent contractors -4- who apparently felt uncomfortable around appellant due to her mannerisms and appearance. Frank Versagi denied having any relationship or sexual contact with appellant or referring to her as a nigger or making derogatory comments because of appellant's race or sex. Versagi further averred that appellant refused to accept a change in her job duties which would have required her to take transcripts to the offices of various attorneys. Appellant took numerous sick days from work and often was tardy during the six months she was employed by Versagi. Appellant never gave Versagi any reason for her sick leave or tardiness. The excessive absences and tardiness led to appellant's termination. Frank Versagi stated that appellant was not replaced with a male and/or white employee. Instead, the full-time receptionist position which appellant held remains open as the company has downsized. Appellant supported her brief in opposition to Versagi's motion for summary judgment with her own affidavit in which she averred Frank Versagi asked her for dates, told her to not fix her blouse which had opened, told her to call him on the weekend when she was home ill, and asked apellant to bartend at a poker game held at his home. By the end of October and the beginning of November, Frank Versagi began touching appellant on her outer thigh, wrist, shoulders, and neck. Appellant was invited to a Christmas get-together at the downtown Marriott at which Frank Versagi was the only other attendant. Frank Versagi asked appellant to cook for him and to be his girlfriend. The week after -5- appellant refused Frank Versagi's advances, Versagi told appellant he was giving her position to another woman and that appellant would be doing other work. Frank Versagi became hostile toward appellant and would curse at her in front of others. By February, Frank Versagi began touching appellant again and asked her to be his wife. In March, appellant asked Frank Versagi not to touch her again giving as her reason that she had a bad experience once. He did not touch her again but began to be rude and mean to her. Appellant was fired shortly after. Appellant stated she had sought psychotherapy treatment seventeen times because of the actions of Frank Versagi. Appellant alleged other employees had been similarly abused by Frank Versagi. III. In her assignment of error, appellant contends the trial court erred by granting Versagi's motion for summary judgment. In her brief in opposition to motion for summary judgment, appellant withdrew that part of Count I of her amended complaint which was for sexual harassment in violation of R.C. Chapter 4112. The remaining portion of Count I was for the creation of a hostile work environment. The hostile work environment claim was based upon the R.C. Chapter 4112 cause of action. Without the statutory claim, appellant cannot maintain a hostile work environment claim. Therefore, Count I is not before this court. This case was decided by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: -6- (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Summary judgment is a procedural device designed to terminate litigation and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reasonable dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. The moving party is entitled to summary judgment if the nonmoving party fails to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp v. Catrett (1986), 477 U.S. 317, 322. Appellant brought a cause of action for negligent infliction of emotional distress. In Tschantz v. Ferguson (1994), 97 Ohio App.3d 693, this court held that Ohio does not recognize a separate tort for negligent infliction of emotional distress in the employment context. A plaintiff can recover for the negligent infliction of emotional harm only by instituting a traditional claim for negligent infliction of emotional harm. A plaintiff must show that he or she was a bystander to an accident, reasonably appreciated the peril, and suffered serious and foreseeable emotional distress as a result of his or her cognizance or fear of -7- the peril. Id. at 714. This position has been affirmed by the Supreme Court of Ohio in Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 163. Appellant's amended complaint or brief in opposition alleges no facts which would permit recovery for negligent infliction of emotional distress under Tschantz. Appellant also brought a claim for intentional infliction of emotional distress. A claim for intentional infliction of emotional distress requires proof of the following elements: (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 the plaintiff's psychic injury, and (4) that the mental anguish suffered by the plaintiff is serious and of a nature that no reasonable person could be expected to endure it. Ashcroft v. Mt. Sinai Medical Ctr. (1990), 68 Ohio App.3d 359. Serious emotional distress requires an emotional injury which is both severe and debilitating. Paugh v. Hanks (1983), 6 Ohio St.3d 72. Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, relied on the description of extreme and outrageous conduct found in Restatement of the Law 2d, Torts (1965) 71, Section 46, which stated: *** It has not been enough that the defendant -8- has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. 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. Id., at 374-375. A plaintiff claiming severe and debilitating emotional injury must present some guarantee of genuineness in support of his or her claim, such as expert evidence, to prevent summary judgment in favor of the defendant. Knief v. Minnich (1995), 103 Ohio App.3d 103. In lieu of or in addition to expert testimony, a plaintiff may submit the testimony of lay witnesses acquainted with the plaintiff who have observed significant changes in the emotional or habitual makeup of the plaintiff. Uebelacker v. Cincom Systems, -9- Inc. (1988), 48 Ohio App.3d 268, 276. The evidence submitted by appellant to prove her severe and debilitating injury was her affidavit in which she averred she eventually developed chest pains whenever Frank Versagi spoke to her and that she sought psychotherapy because of Frank Versagi's treatment of her. Appellant attached an unverified statement of her account with the doctors who administered the psychotherapy to her brief in opposition to motion for summary judgment. This evidence is not sufficient to sustain a claim of a severe and debilitating injury. There is no expert medical testimony or even any testimony submitted by a lay witness regarding any changes in appellant's emotional or habitual makeup. Therefore, appellant has not proven this element of a claim for intentional infliction of emotional distress in a manner sufficient to withstand a motion for summary judgment. The trial court did not err by granting summary judgment on appellant's claim of intentional infliction of emotional distress. Appellant brought claims for sex and racial discrimination. In her complaint, appellant averred she was discriminated against because of her sex as she was subjected to conditions, remarks, and conduct to which male employees were not subjected. Although appellant relies upon Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486, in which the court recognized a common-law cause of action for sexual harassment, appellant's claim is for sex discrimination not sexual harassment. Kerans is not applicable to the instant case. Appellant also claimed Versagi discriminated -10- against her on the basis of race as she was subjected to conditions, remarks, and conduct solely because of her race. In Republic Steel Corp. v. Hailey (1986), 30 Ohio App.3d 103, this court set forth the standard to be applied in a case claiming discrimination by an employer. In order to establish a prima facie case of sex discrimination, a plaintiff must show (1) she is female, (2) she was qualified for the position, (3) she was discharged, and (4) the position remained open or a male employee then performed those duties. Id., at 106. Once a plaintiff has established a prima facie case, the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the employee's termination. The plaintiff then must prove by a preponderance of the evidence that the defendant's reason for termination was false or pretextual. Appellant established a prima facie case of sex discrimination as she is female, apparently was qualified for her position as a receptionist, was discharged, and her position at the company remains open. Versagi maintains appellant was discharged for nondiscriminatory reasons as she was often tardy, used excessive sick leave, and the company downsized to only one full-time employee. Appellant failed to offer any proof that the reasons given by Versagi were pretextual. Appellant has not met her burden to withstand a motion for summary judgment on a claim for sex discrimination. The trial court did not err by granting summary judgment for this claim. Appellant's last cause of action was for racial discrimination. The only evidence in the record of racial -11- discrimination is the allegation that Frank Versagi called appellant a nigger. In order for a race-based comment to be probative of an employer's discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that race was an impermissible factor in an employment-related decision. The courts have repeatedly held that stray remarks do not demonstrate discrimination. Cooley v. Carmike Cinemas (C.A.6, 1994), 25 F.3d 1325, 1330-1331. A plaintiff must show that any remark was made by a decision maker who held authority over employment decisions that would affect the plaintiff. EEOC v. Texas Instruments, Inc. (C.A.5, 1996), 100 F.3d 1173, 1181. The remark allegedly made by Frank Versagi is extreme and very offensive but appears to fall within the category of a stray remark. A plaintiff must show pervasive or systematic discrimination. Isolated incidents do not rise to the level of racial discrimination. See Barney v. Chi Chi's Inc. (1992), 84 Ohio App.3d 40. Appellant has not presented evidence on this claim sufficient to withstand a motion for summary judgment. Because summary judgment correctly was granted on appellant's substantive claims, the issue of punitive damages also was correctly disposed of by summary judgment. Appellant's assignment of error lacks merit. Judgment affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE, P.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY Judge -13- N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .