COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73172 JOAN MADERA, ET AL. : : Plaintiffs-Appellees : [Cross-Appellants] : : -vs- : JOURNAL ENTRY : AND SATELLITE SHELTERS, INC. ET AL. : OPINION : Defendants-Appellants : [Cross-Appellees] : : DATE OF ANNOUNCEMENT : AUGUST 12, 1998 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-312579 JUDGMENT : Judgment for plaintiffs- appellees vacated and entered in favor of defendants-appellants. DATE OF JOURNALIZATION : APPEARANCES: For plaintiffs-appellees: Robert B. Campbell, Esq. E. Brunswick Professional Bldg. 3864 Center Road, Suite A9 Brunswick, Ohio 44212 For defendants-appellants: Linda Hausermann Harrold, Esq. Lester W. Armstrong, Esq. Belkin, Billick, Harrold & Wiencek, Co., L.P.A. 23200 Chagrin Boulevard Suite 450 Cleveland, Ohio 44122 [Attorneys continued] Marko J. Mrkonich, Esq. Ingrid M. Kreuser, Esq. Littler Mendelson, P.C. MultiFood Tower - Suite 3970 -2- 33 South 6th Street Minneapolis, MN 55402-3720 -3- MICHAEL J. CORRIGAN, J.: Defendants-appellants, Satellite Shelters, Inc. and Thomas Wojdacz, appeal the decision of the Cuyahoga County Court of Common Pleas which denied their motion for directed verdict, motion for judgment notwithstanding the verdict, and motion for a new trial. Plaintiffs-appellees, Joan Madera and James Madera, cross-appeal the trial court's decision to grant defendants-appellants' motion for directed verdict on the issue of punitive damages. This court, finding error, vacates the judgment of the trial court and enters judgment in favor of defendants-appellants. On July 30, 1996, plaintiffs-appellees, filed a five-count complaint against defendant-appellant Satellite Shelters, Inc. (hereinafter Satellite ) and defendant-appellant Thomas Wojdacz (hereinafter Wojdacz ). Defendants-appellants filed motions for summary judgment which were granted on three out of the five counts. The two counts remaining alleged defendants-appellants discriminated against Mrs. Madera, in violation of R.C. 4112.02(A) and that she was constructively discharged based upon her gender. After the trial court granted a motion to bifurcate claims for compensatory and punitive damages, a trial began on July 21, 1997 in which the following facts were adduced. In March of 1994, Mrs. Joan Madera was hired as a sales representative for Satellite. Satellite is a Wyoming based corporation that sells and rents modular trailers to be used at construction sites and schools. She was one of three to four office -4- employees who worked in Satellite's branch office located in Brook Park, Ohio. The branch manager and Mrs. Madera's direct supervisor was Wojdacz. In July of 1994, Mrs. Madera learned she was pregnant. Her pregnancy had many complications and required her to work a reduced work schedule (with no cut in pay) and also required her to take sick leave prior to maternity leave. She claimed that around the time Wojdacz learned she was pregnant, he began a course of conduct consisting of gender-based comments, humiliation, and intimidation. From December 5, 1994 through April 15, 1995, Mrs. Madera was on maternity/disability leave. On May 16, 1995, she received a raise retroactive to May 1, 1995. She testified that Wojdacz's comments based on gender continued and would occur on a weekly basis throughout the duration of her employment. According to Mrs. Madera, specific examples of the alleged harassment included, but were not limited to: 1) Wojdacz stated you women want men's jobs but you don't want to do the work ; 2) Wojdacz insinuating she should go on a diet in front of others since she still looked pregnant more than one year after giving birth to her child; and 3) after finding out Mrs. Madera would have to take four to six weeks off for hernia surgery as a result of her delivery, Wojdacz told her he would make it hell for her when she returned. Not only did Wojdacz deny making some of the comments, but the comments he did acknowledge making he said were either in jest or were made within the ordinary course of a working relationship. -5- Wojdacz testified that the comments were not made because of Mrs. Madera's gender. Moreover, Satellite argued, among other things, that there existed no evidence of any detrimental effect to Mrs. Madera since she received a pay raise and was accommodated by Satellite on a number of occasions for her medical conditions. While there may have been a conflict of personalities, Satellite argued it was a matter of human relations and not one of sexual harassment. Finally, Satellite argued the evidence established she planned to leave months before resigning to spend time with her son as opposed to being constructively discharged as she now argues. We note there was no dispute between the parties that Satellite had both an open-door policy and a sexual harassment policy. Mrs. Madera testified that she attempted to use Satellite's open-door policy by speaking to Wojdacz's superior, Bob Farnham, concerning the cleaning of trailers. She testified that after Mr. Farnham talked with him, Wojdacz stated if she ever went over his head again, he would fire her on the spot. Mrs. Madera testified that she never again contacted a supervisor concerning the conduct of Wojdacz for fear of being fired. At the close of trial, defendants-appellants renewed a motion for directed verdict. The trial court denied said motion. The jury returned a verdict of 6-2 in favor of plaintiffs-appellees in the amount of $17,000 against Satellite and $35,000 against Wojdacz. Defendants-appellants then moved for a directed verdict of the claim for punitive damages which was granted by the trial court. On July 28, 1997, defendants-appellants filed a motion for judgment -6- notwithstanding the verdict and a motion for a new trial. On August 26, 1997, the trial court denied said motions. Defendants- appellants timely filed their notice of appeal and plaintiffs- appellees filed a cross-appeal concerning the trial court's granting of the motion for directed verdict concerning punitive damages. Since defendants-appellants' first and second assignments of error contain similar issues of law and fact, we will consider them concurrently. I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANTS' MOTION FOR DIRECTED VERDICT. II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. Defendants-appellants argue the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict. Specifically, defendants-appellants argue, as a matter of law, there was insufficient evidence upon which reasonable minds could find for plaintiffs-appellees since: 1) plaintiffs-appellees failed to present evidence establishing every element of their claim under R.C. 4112.02(A); 2) Mrs. Madera was not subjected to comments or actions of a sexual nature; 3) there was no evidence that her workplace was so permeated with sexually discriminatory practices that it altered the terms and conditions of her employment; 4) the alleged comments were not severe and pervasive; 5) Mrs. Madera did not report the alleged sexual harassment to Satellite; and 6) Mrs. Madera failed to prove she was constructively discharged. We agree. -7- Initially we note that the standard of review for a ruling on a motion for judgment j.n.o.v. is the same one applicable to a motion for a directed verdict. See Posin v. A.B.C. Motor Court Hotel(1976), 45 Ohio St.2d 271; Bruggeman v. Fishbaugh (1994), 96 Ohio App.3d 200. A motion for directed verdict is to be granted when, construing the evidence most strongly in favor of the party opposing the motion, the trial court finds that reasonable minds could come to only one conclusion and that conclusion is adverse to such party. Civ.R. 50(A)(4); Crawford v. Halkovics (1982), 1 Ohio St.3d 184; The Limited Stores, Inc. v. Pan American World Airways, Inc. (1992), 65 Ohio St.3d 66. Stated differently, a directed verdict is appropriate where the party opposing it has failed to adduce any evidence on the essential elements of the claim. Cooper v. Grace Baptist Church (1992), 81 Ohio App.3d 728, 734. The issue to be determined involves a test of the legal sufficiency of the evidence to allow the case to proceed to the jury, and it constitutes a question of law, not one of fact. Hargrove v. Tanner (1990), 66 Ohio App.3d 693, 695; Vosgerichian v. Mancini Shah & Associates, et al. (Feb. 29, 1996), Cuyahoga App. Nos. 68931 and 68943. R.C. 4112.02(A), which sets forth unlawful employer discriminatory practices, states that it is: An unlawful, discriminatory practice for any employer, because of the race, color, religion, sex, national origin, handicap, age or ancestry of any person to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions or privileges of employment, or any matter directly or indirectly related to employment. -8- In Ohio, "federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Little Forest Med. Ctr. v. Ohio Civ. Rights Comm. (1991), 61 Ohio St.3d 607, 609-610, quoting Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 196; Neal v. Hamilton Cty. (1993), 87 Ohio App.3d 670, 676-677. Therefore, in analyzing statutory sexual-harassment claims, we look to R.C. 4112.02(A) and corresponding case law, to the administrative counterpart (Ohio Adm.Code 4112-5-05(J)), and to federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S. Code. Retterer v. Whirlpool Corp. (1996), 111 Ohio App.3d 847; Delaney v. Skyline Lodge, Inc. (1994), 95 Ohio App.3d 264, 270. Two classes of sexual harassment are actionable under Title VII: (1) quid pro quo harassment where the employee's submission or rejection of unwelcome sexual conduct is used as the basis for promotion or other employment decision, and (2) hostile environment harassment where the relationship results in unreasonable interference with the employee's work performance and creates an intimidating or hostile work environment. See Western-Southern Life Ins. Co. v. Fridley (1990), 69 Ohio App.3d 190. Recently, this court set forth the proper analysis when reviewing claims of hostile work environment discrimination in Takach v. American Medical Technology Inc., et al. (February 19, -9- 1998), Cuyahoga App. No. 72247, unreported. We stated the following: In order to recover on a claim for sexual harassment in the workplace, the employee seeking recovery must demonstrate five elements: (1) That the employee was a member of a protected class; (2) That the employee was subjected to unwelcomed sexual harassment in the form of sexual advances or requests for sexual favors; (3) That the harassment complained of was based on sex; (4) That the employee's submission to the unwelcomed advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's sexual demands resulted in tangible job detriment; and, (5) The existence of respondeat superior liability. Schmitz v. Bob Evans Farms, Inc. (May 1, 1997), Cuyahoga App. No. 70766, unreported, 1997 WL 218258, at 6, citing Kauffman v. Allied Signal, Inc. (C.A.6, 1992), 970 F.2d 178 and Highlander v. KFC Nat'l Management Co. (C.A.6, 1986), 805 F.2d 644, 648. In analyzing the harassing conduct complained of, it is noted: Title VII of the Civil Rights Act of 1964 prohibits discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex." 42 U.S.C. S 2000(e)-2(a)(1). In Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986), the Supreme Court held that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex created a hostile or abusive work environment. Indeed, the statute grants employees "the right to work in an environment free from discriminatory intimidation, ridicule, and insult." Id. at 65, 106 S.Ct. at 2405. However, the Court emphasized in Meritor that not all workplace conduct that has sexual overtones can be characterized as harassment forbidden by the statute. See id. at 67, 106 -10- S.Ct. at 2406-06. Rather, harassment must affect a "term, condition, or privilege" of employment in order for it to fall within Title VII's purview. Thus, for alleged harassment to be actionable, it must be "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982). In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-23, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993), the Supreme Court reaffirmed this standard and elaborated upon its contours. The Harris Court explained that the conduct in question must be judged by both an objective and a subjective standard: The conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive. Id. at 21-22, 114 S.Ct. at 370-71. "This standard *** takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury." Id. at 21, 114 S.Ct. at 370. Acknowledging that this approach is not susceptible to a "mathematically precise test," id. at 22, 114 S.Ct. at 371, the Court then sought to provide some guidance with regard to the somewhat elusive question of whether a work environment was objectively hostile or abusive. The Court explained that all of the circumstances should be considered, and it suggested a non-exhaustive list of relevant factors: [T]he frequency of the discrimina- tory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreason- ably interferes with an employee's performance. The effect on the employee's psychological well-being is, of course, relevant to determin- ing whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken -11- into account, no single factor is required. Id. at 23, 114 S.Ct. at 371. Black v. Zaring Homes, Inc. (C.A.6, 1997), 104 F.3d 822, 825-826. In this case, Mrs. Madera was hired by Satellite in March of 1994. She testified that in July of 1994, she found out she was pregnant. She stated that Wojdacz was surprised and asked if she planned on staying with the company. She replied that she intended to stay working. Mrs. Madera testified that her pregnancy was difficult due to being forty-one years of age and she had many complications causing her to work a reduced schedule beginning in August of 1994. Moreover, she took sick time from October 27 through November 7, 1994. Satellite accommodated her needs and did not reduce her salary even though she began working approximately 30-32 hours a week as opposed to 40 hours per week. Mrs. Madera stated that Wojdacz was not happy with the situation and began a course of conduct which made her feel upset, humiliated and intimidated. Mrs. Madera's testimony consisted of the following examples of what she considered was sexual harassment.1 1) Plaintiffs-appellees argue on appeal and Mrs. Madera testified in court that one time during her pregnancy, a trailer came back and had to be inventoried which had a foul smell inside. The smell made her so sick she couldn't finish the inventory. She testified that Wojdacz commented that if she chose to work through her pregnancy, then she should do her work. However, on 1The incidents herein described may not be in correct chronological order due to the disjointed nature of Mrs. Madera's testimony. -12- cross examination, plaintiff-appellee contradicted herself and acknowledged that Wojdacz did not know she was pregnant at the time and that, over the phone, he said he couldn't believe the trailer was in such bad shape since he had previously observed its condition at the work site. Mrs. Madera finished the inventory with another co-worker and later testified on re-cross that she did not feel this episode was discriminatory and/or harassment job.2 2) Wojdacz had to go replace/repair a lock on a trailer they had rented since she was never instructed on how to do it. Wojdacz stated, [y]ou women want men's jobs, but you don't want to do the work. 3) Wojdacz made comments that she wears too much black to hide her weight and that women like to hide their weight wearing black. Mrs. Madera testified that she did not think these comments were meant as a joke. On cross-examination she stated that she responded I don't see [Wojdacz's wife's] name on Mr. Blackwell's list of best dressed women. 4) Mrs. Madera had to go get special stockings for her pregnancy during her lunch break. When she came back after her break was over and started eating her lunch, Wojdacz was very nasty about it. She testified: Later on I said I don't know why you made such an issue of it. You cut my lunch down, and if you remember, the doctor says 30 hours a week. I'm working 32 with a cut lunch. You know, when you make an issue like that I'm not making an issue. He said, you know, we're still paying you your salary. I said, it doesn't matter. My health, my baby if this is a big deal then take the money out of my salary. That is not I'm not concerned with that. You don't have to pay me. 2On cross-examination, Mrs. Madera also acknowledged that she spoke with Mr. Farnham to see if they had enough money in the budget to hire somebody to clean out the trailers even though Wojdacz had previously informed her that there wasn't. Apparently, she was told there was enough money in the budget and was asked why hadn't Wojdacz hired somebody already. We can infer it was from this action that Wojdacz told her if you ever go over my head to corporate again, I'll fire you on the spot. Importantly, Mrs. Madera did not complain to Mr. Farnham of Wojdacz's conduct towards her. -13- I'm coming in at 10:00. Don't pay me from 8:00. Well, you're salaried. We have to. It was just a nasty experience to be at my age, to be so yelled at to where your face is red, because I'm eating at my desk to make me cry. It just wasn't right, and I still get upset when I think about it. It was really so ridiculous. 5) Mrs. Madera testified that the discriminatory conduct continued after she returned from maternity leave. She testified that Wojdacz commented that she ought to think about staying home with her child and that his wife stayed home with their child. 6) While a group of individuals were standing around a Christmas cookie tray, Mrs. Madera told a fellow worker to have some more cookies who responded that he was watching his weight. Wojdacz, who was standing around the table, stated unlike some people who, one year later, still look like they're pregnant. 7) Due to complications which arose during the delivery of her child, Mrs. Madera had to take medical leave from January 16, 1996 to March 16, 1996 for hernia surgery. When Wojdacz learned that she needed surgery, he told her he would make it hell for her when she came back. She testified that she was distraught about going back to work and went to talk to an attorney.3 After she returned to work, Wojdacz informed Mrs. Madera that she would have to start at 7:00 a.m. to make up work since they were very busy. Mrs. Madera asked if she could start in two weeks so that she could arrange day care. He said no and that she should start at 7:00 a.m. the following Monday since she had time during her leave of absence to make arrangements. He stated I told you there would be hell to pay. Although in dispute, accepting for purposes of this review that all of the detailed exchanges occurred, and in reviewing the evidence in the light most favorable to plaintiffs-appellees, we cannot hold that as a matter of law, these incidents over an 3There is evidence in the record adduced at trial that the plaintiff-appellee did not intend to return to Satellite after her hernia surgery. -14- approximate two year period of time rise to the level of actionable sexual discrimination under Title VII and/or R.C. 4112.02. First, Madera testified at deposition and at trial that neither Wojdacz not anybody else at Satellite ever propositioned her or touched her in a sexual way. Put simply, none of the claimed harassment was predicated upon sexual conduct and/or relations. That is not to say that gender based comments cannot rise to the level of sexual harassment. But the absence of unwelcomed sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature is a factor which must be considered when considering whether or not a hostile work environment is present. See O.A.C. 4112-5-05(J). Second, there has been no evidence that the actions constituted an unreasonable interference with Mrs. Madera's work performance. Although she testified that she felt distraught and stressed, there was no evidence that her performance as a sales representative suffered. In fact, a review of the record establishes that while she was working, she was an effective employee who received at least one merit raise authorized by Wojdacz and approved by Mr. Farnham. She received her total salary notwithstanding her reduced hours and, likewise, was accommodated with generous paid leaves. Finally, while we recognize that many of the comments made by Wojdacz were unprofessional and insensitive, we also recognize that Title VII was "not designed to purge the workplace of vulgarity." -15- Baskerville v. Culligan Internat'l Co., 50 F.3d 428, 430 (7th Cir.1995). In Baskerville, the court stated: We spoke in [Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1009-10 (7th Cir.1994)] of "the line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing." 32 F.3d at 1010. It is not a bright line, obviously, this line between a merely unpleasant working environment on the one hand and a hostile or deeply repugnant one on the other; and when it is uncertain on which side the defendant's conduct lies, the jury's verdict, whether for or against the defendant, cannot be set aside in the absence of trial error. Our case is not within the area of uncertainty. Mr. Hall, whatever his qualities as a sales manager, is not a man of refinement; but neither is he a sexual harasser. He never touched the plaintiff. He did not invite her, explicitly or by implication, to have sex with him, or to go out on a date with him. He made no threats. He did not expose himself, or show her dirty pictures. He never said anything to her that could not be repeated on primetime television. The comment about Anita Hill was the opposite of solicitation, the implication being that he would get into trouble if he didn't keep his distance.***. Some of his repartee, such as, "Not until you stepped your foot in here," or, "Were we dancing, like in a nightclub?," has the sexual charge of an Abbott and Costello movie. The reference to masturbation completes the impression of a man whose sense of humor took final shape in adolescence. It is no doubt distasteful to a sensitive woman to have such a silly man as one's boss, ***. The infrequency of the offensive comments is relevant to an assessment of their impact. A handful of comments spread over months is unlikely to have so great an emotional impact as a concentrated or incessant barrage. Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1456 (7th Cir.1994); Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 444 and n. 3 (7th Cir.1994). We are not condoning the conduct of Wojdacz, defendant- appellant. Moreover, we are mindful of the deference usually given to the trier of fact when assessing the weight and credibility of the evidence and are, therefore, reluctant to overturn a jury verdict in favor of plaintiff-appellee. Nevertheless, we hold as a -16- matter of law that the evidence construed most favorably to plaintiff-appellee is insufficient to support a finding that the comments of Wojdacz were severe or pervasive enough to create an objectively hostile work environment. Again, "not all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII." Meritor, 477 U.S. at 67, 106 S.Ct. at 2405. See, also, Oncale v. Sundowner Offshore Services, Inc. (1988), 523 U.S. ___, 118 S.Ct. 998. Our conclusion reached today is not based upon an analysis of the comments as isolated events but rather viewing the totality of the circumstances. See Harris, 510 U.S. at 23, 114 S.Ct. at 371. An objective examination reflects that Wojdacz's comments, while offensive and inappropriate, were isolated occurrences which did not unreasonably interfere with Mrs. Madera's work performance and did not create an abusive work environment actionable under Title VII. The justice system cannot be the arbiter of feelings hurt and egos bruised as a result of mere insensitive and tasteless statements made by an individual in a position of authority. Accordingly, we conclude that no reasonable jury could find that Wojdacz's remarks created a hostile working environment resulting in a constructive discharge. Defendants-appellants first and second assignment of error are well taken. Due to the disposition of the first and second assignments of error, defendants-appellants' third assignment of error and plaintiffs-appellees' cross-assignment of error are moot for -17- purposes of this appeal.4 App.R. 12(A)(1)(c). Judgment for plaintiffs-appellees is hereby vacated and entered in favor of defendants-appellants. 4Our holding also negates the application of the supplemental authorities provided by plaintiffs-appellees: Burlington Industries, Inc. v. Ellerth (1998), ___ U.S. ___, 66 LW 4634; Faragher v. City of Boca Raton (1998), ___ U.S. ___, 66 LW 4643. -18- It is ordered that appellants recover of appellees 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 Cuyahoga County 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. JAMES M. PORTER, P.J., CONCURS; LEO M. SPELLACY, J., CONCURS IN JUDGMENT ONLY. JUDGE MICHAEL J. CORRIGAN N.B. This entry 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(E), 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 .