Kreuzer v. Ohio Department of Transportation District 4 et al
Filing
41
Memorandum Opinion: For all of the foregoing reasons, defendant Ohio Department of Transportation's motion for summary judgment is granted, and this case is closed. (Related Doc. No. 32 ). Judge Sara Lioi on 8/13/2018. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANIELLE J. KREUZER,
PLAINTIFF,
vs.
OHIO DEPARTMENT OF
TRANSPORTATION
DISTRICT 4, et al.,
DEFENDANTS.
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CASE NO. 5:16-cv-3026
JUDGE SARA LIOI
MEMORANDUM OPINION
Before the Court is the motion for summary judgment filed by defendant Ohio
Department of Transportation (“ODOT”). (Doc. No. 32 [“Mot.”].) Plaintiff Danielle J. Kreuzer
(“Kreuzer”) opposed the motion (Doc. No. 34 [“Opp’n”]), and ODOT replied. (Doc. No. 35
[“Reply”].) For the reasons discussed below, the motion is GRANTED.
I. BACKGROUND
Kreuzer was employed by ODOT from 1987 through her termination on or about May
15, 2015. (Doc. No. 28 (Deposition of Danielle Kreuzer [“Kreuzer Dep.”]) at 2531; Doc. No. 321 [“Termination Letter”] at 852.) When she began working for ODOT she was a highway
worker, but over the years she was promoted several times. (Kreuzer Dep. at 253-54.) From 2006
until she was terminated, she held the position of LPA construction monitor, working in the
Construction – as opposed to the Maintenance – Department at the Stark County garage. (Id. at
254-55.) As an LPA construction monitor, she performed tasks involving “oversight of federal
money to local municipality construction projects.” (Id. at 256.)
All page number references are to the page identification number generated by the Court’s electronic docketing
system.
1
Beginning in approximately 2012, Kreuzer’s work was supervised by David James. (Id.
at 260.) Under James, she worked the hours of 7:00 am through 3:00 pm with an unpaid lunch
and two fifteen-minute paid breaks. (Id. at 269.) During the time pertinent to this case, Kreuzer’s
time was tracked through an electronic system called Kronos by punching in and out on her
computer. (Id. at 260-61.) From the time ODOT began using the system in 2013 through her
termination, James supervised Kreuzer’s Kronos kept time, with one exception: from early
December 2014 through the end of March 2015, Kreuzer’s Kronos supervisory authority was
transferred to Stark county manager, Tim Guth, while she was performing radio operator duties
through the Maintenance Department in addition to her job as an LPA Construction Monitor. (Id.
at 269-70.)
A. Three Incidents of Alleged Sexual Harassment
Guth and Kreuzer both worked in the Stark County garage at all times pertinent to this
case, but they were in different departments – he in Maintenance, she in Construction. (Id. at
271; Doc. No. 29-4 (Affidavit of Timothy Guth [“Guth Affidavit”]) at ¶¶ 1, 3.) The two had
minimal contact with one another, but Kreuzer claims that at least three of their interactions
between April 2013 and the summer of 2014 were hostile in nature. For purposes of this motion
for summary judgment, Kreuzer’s recitation of these incidents will be taken as true.
The first incident occurred in April 2013. On that occasion, Guth entered the garage
kitchen while Kreuzer was preparing her breakfast. (Kreuzer Dep. at 276.) Without saying a
word, he approached Kreuzer and stood with his chest one inch from her shoulder. (Id. at 276.)
Kreuzer found Guth’s body language to be aggressive, but did not say anything to Guth or report
the incident. (Id. at 272-73, 277, 280.) She did stop making her breakfast there in the mornings.
(Id. at 273.)
2
After the incident in the kitchen, Kreuzer tried to “steer[] clear” of Guth. (Id. at 273.)
There was not another incident between the two until the late winter or early spring of 2014
when Kreuzer slipped and fell on ice in the parking lot. (Id. at 273, 287.) Guth happened to be
there when she entered the garage so she informed him of her fall. (Id. at 273-74.) She then told
him that she was going to go to the bathroom to inspect her injuries to evaluate whether she
should go to the ER or fill out an accident report. (Id.) As she walked to the bathroom, Guth said
in a “playful” tone, “‘Hey, let me know if you need any help in there with that.’” (Id. at 274,
418.) Kreuzer responded “No, thank you,” gave him a dirty look, and kept walking. (Id. at 274,
287.) No one else was present during this incident, and Kreuzer did not report the interaction
because she “just thought that it wasn't significant enough at that point[.]” (Id. at 288.)
Finally, in the summer of 2014, Guth came into Kreuzer’s office and aggressively asked,
“‘Just what do you do all day anyway?’” (Id. at 275, 290-91, 418.) While she was answering the
question, Guth “glaze[d] over.” (Id. at 275, 290.) Kreuzer interpreted his question coupled with
his disinterest to be an “aggressive move.” (Id. at 275.) Before that point, she had been doing her
job without issue. (Id. at 275.) After the five-minute conversation, she claims she felt threatened.
(Id. at 275, 290.) But she did not report the incident because she did not want to bring attention
to herself for an incident that, in her opinion, “was inappropriate but not monumental[.]” (Id. at
305.)
But Kreuzer testified that, “[a]t that point, [she] was feeling threatened after what [she]
had seen take place in the district.” (Id. at 275.) Specific to Guth, Kreuzer knew of rumors
involving female employees, one of which went on disability soon after Guth started as Stark
County manager and another of a woman he had written up for not working enough overtime.2
One of Kreuzer’s female coworker’s, Kristine Mayle, characterized Guth’s workplace demeanor as “[l]ighthearted. I mean, not mean.” (Doc. No. 30 (Deposition of Kristine Mayle [“Mayle Dep.”]) at 740.)
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(Id. at 271-72, 275, 278-80, 291-94, 301-04.) On a broader company level, during the summer of
the last incident, two women had been stripped of their positions as department heads and
another three had been denied promotions. (Id. at 274-75, 297-301; Doc. No. 26 (Deposition of
Michael Donaldson [“Donaldson Dep.”]) at 161-63.) According to Kreuzer, she had seen this
type of discrimination and worse during her twenty-eight years of service at ODOT and had
learned to keep her head down and “develop a thick skin[.]” (Kreuzer Dep. at 280-86, 288, 29497.)
B. Radio Operation during the Winter of 2014-2015
Even though she had had negative experiences with Guth previously and felt free to
refuse, Kreuzer agreed to allow Guth take over her Kronos supervision in November 2015 so that
she could perform some radio operator duties that winter.3 (Id. at 270-71, 309; see Doc. No. 29
(Deposition of Timothy Guth [“Guth Dep.”]) at 662-63.) Prior to this time, Kreuzer had sought
and been given approval to assume the radio operator duties in addition to her tasks as LPA
Construction Monitor, provided she maintained her 40 hours in her original position. (Kreuzer
Dep. at 306-07.) During that winter, she regularly declined extra shifts as radio operator, working
fewer than 80 hours during the season on a volunteer basis. (Id. at 309-10, 313; Guth Dep. at
668-69.) But Kreuzer claims this period of time was extremely difficult for her, due in part to
Guth.
According to Kreuzer, her troubles began the moment Guth learned through an email that
she would be helping with radio duties, a Maintenance Department job. Upon receiving the
email, Guth called a meeting with Kreuzer and the other radio operator, Kristine Mayle. (Kreuzer
3
During testimony, Kreuzer repeatedly referred to a grievance that necessitated her need to perform radio operator
duties. (Kreuzer Dep. at 270-71, 306-07, 310-11, 314, 317-19, 339, 419.) But the grievance in question is immaterial
to this case as it pertained solely to a labor-management dispute. Specifically, Kristine Mayle filed the grievance
contesting management performing radio operator duties, which she believed to be a union job that should be
performed by a member of the labor workforce. (Mayle Dep. at 736-37.)
4
Dep. at 314-15.) At the meeting, Guth threatened to change Kreuzer’s shift to afternoons so that
she could cover the 10:00 a.m. to 10:00 p.m. radio shift.4 (Id. at 315.) This caused Kreuzer a
great deal of stress. The next day, she went directly to district headquarters to speak to Dave
Reich about the situation. (Id. at 315-17.) Kreuzer told Reich about the threat and asked “‘what if
I told you I can’t do this?’” (Id. at 317-18; Doc. No. 31 (Deposition of David Reich [“Reich
Dep.”]) at 776-77.) Reich advised her that she did not “‘want to open that can of worms.’”
(Kreuzer Dep. at 318.) Reich also tried to reassure Kreuzer by telling her that her shift would not
be changed and that he would talk to Guth. (Id. at 319; Reich Dep. at 776.) Kreuzer did not know
what the “can of worms” was, but she did know that talking to a supervisor was rarely a good
thing. (Kreuzer Dep. at 319, 326-27, 334.)
After the discussion, Guth did not bring up a possible shift change again. Instead,
Kreuzer was asked to perform radio operations on an as-needed basis. (Id. at 319-21; Guth Dep.
at 667-69.) Between her original duties and those additional radio operations she agreed to
perform, her shifts were long, sometimes requiring her to work until 10:00 p.m. only to return at
7:00 a.m. the next morning. (Kreuzer Dep. at 321.) Because the radio operations were needed
only on days of impending snowstorms, Kreuzer could not readily predict when she would be
asked to operate the radio so as to adequately prepare for the extended hours on site. (Id. at 32021.) The unpredictability, coupled with long hours of sedentary activity, clashed with her ADHD
and caused her health to deteriorate. (Id. at 328-29.) But Kreuzer did not notify anyone of her
struggles due to her mental health condition, instead choosing to “self-accommodate[].” (Id. at
Guth’s characterization of this conversation is somewhat different, but the necessity of a shift change is consistent
among both Guth and Kreuzer’s accounts. (Guth Dep. at 670-71.)
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322-23.) “Self-accommodation” did not include requesting to flex her time to make the shifts
more manageable, even though she had been approved to do so previously.5 (Id. at 321, 324.)
At some point during that winter, Kreuzer snapped and decided that she would “do
everything [she could] to stay out of this garage.” (Id. at 330-31, 337-38.) The catalyst for this
decision was when a coworker, Mike Donaldson, said he would no longer visit her office for
morning conversations, which Kreuzer admitted could be “animated or loud[.]” (Id. at 329-30.)
Donaldson’s decision stemmed from Guth’s conduct, insinuating Donaldson was not welcome.
But Donaldson testified that it was not the fact that he was talking to Kreuzer with which Guth
took issue. (Doc. No. 26 (Deposition of Michael Donaldson [“Donaldson Dep.”]) at 150-52.)
Instead, Donaldson cited Guth’s reputation as a “stickler for the black-and-white rules” who, “if
you were in his facility[,] he always wanted to know what you were doing there, why you were
there.”6 (Id. at 152-53, 168.) While Kreuzer cites this as a turning point, she and Guth never
discussed the situation. (Kreuzer Dep. at 336.)
Around this time, one other incident occurred which resulted in the end of Kreuzer’s
radio operation duties. Briefly, one day while Kreuzer was in a meeting with James discussing a
matter to do with her job as LPA Construction Monitor, the Stark County garage repeatedly
called Kreuzer. (Id. at 333.) While the phone rang and rang, she told James,
5
When asked why she had not proposed flex time, Kreuzer cited the differences between the operations of the
Maintenance and Construction Departments without any mention to her gender. (Kreuzer Dep. 324-25.) Regarding
Guth specifically, Kreuzer testified that his management style was strictly regimented, as was the way in the
Maintenance Department, but she could not speak to whether he treated men and women differently since she had
spoken exclusively to female colleagues about the matter. (Id. at 325)
When asked whether “there [were] issues with [his] performance as the Stark County maintenance manager that
lead to [him] being placed in the construction department,” Guth admitted that while “there [were] never any real
issues” with his performance reviews, the quality of life numbers were not “extremely high.” (Guth Dep. at 649.)
Guth went on to explain that the quality of life survey asked “various questions about management.” (Id.) Though he
tried to improve his performance in management through a performance improvement plan, he was eventually
transferred out of the position of county manager, to his surprise. (Id. at 651-52.)
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“I just can't do this anymore. I can't do this. I can't work for two different
departments and, you know, please and do both jobs well because the one job was
somewhat ridiculous. I have to tell him I can't do this anymore.”
(Id.) In response, James remarked “‘Yeah, they've been really fucking with a lot of the women
up here too.’” (Id. at 338-39.) James elaborated, stating that he knew of women being asked to
perform additional duties beyond the scope of their job descriptions, such as answering phones.
(Id. at 340.) But Kreuzer herself did not personally comment on any alleged disparate treatment
of women, instead pinning any disparate treatment on the “long-running contention between the
two departments[.]” (Id. at 339.)
After the conversation with James, Kreuzer returned to the Stark County garage and told
Guth along with Greg Umpleby, the transportation manager of the Stark County Maintenance
Department, that she could no longer take shifts operating the radio. (Id. at 334, 340-41;Guth
Dep. at 672-74.) Kreuzer disclosed her medical condition of ADHD and told of her struggles
managing both positions. (Kreuzer Dep. at 334.) Though Guth responded that he “g[o]t it” and
that it was “okay” and “no problem,” the calls from the Maintenance Department to operate the
radio did not stop. (Id. at 335, 341-42.) Additionally, even though she did not operate the radio
after that day, Guth continued to supervise her Kronos timekeeping through March, giving him
the authority to approve her leave pursuant to ODOT policy.7 (Id. at 343-46.)
C. Investigation
On March 5, 2015, Guth claims he received an anonymous phone call notifying him that
Kreuzer was returning home for several hours a day and parking her ODOT-owned vehicle in
her garage.8 (Guth Dep. 674-75, 686-87; see Doc. No. 29-1 (“Email Communication re Phone
7
Guth requested that timekeeping authority be transferred back to James on March 13, 2015. (Guth Dep. at 693;
Doc. No. 29-3 (“Email re Kronos B”).) The transfer became official on or about March 22, 2015. (Kreuzer Dep. at
346-47; Guth Dep. at 692-93; Doc. No. 28-3 (“Email re Kronos A”); Email re Kronos B.)
8
Kreuzer does not believe such a phone call was ever placed. (Kruezer Dep. at 356-57, 367-68, 406.)
7
Call”).) The caller stated that at the end of the day, Kreuzer would leave in her ODOT-owned car
and return shortly after in her personal vehicle. (Guth Dep. at 675.) Guth did not ask the female
caller for her name or contact information or establish how the caller came about the
information. (Id. at 676.) Upon receipt of the phone call, Guth contacted Reich, who told him to
“play this one by the book.” (Id. at 679; Reich Dep. at 780-81.) The matter was then referred to
business and human resources (“BHR”), and John Shore of the Office of Investigative Services
conducted an independent investigation. (Guth Dep. at 680, 683-4, 690; Reich Dep. at 772, 78182; Email Communication re Phone Call; Guth Affidavit.) The investigation began with a GPS
tracking device being placed placed on Kreuzer’s ODOT-owned vehicle. (Guth Dep. at 683-84;
Doc. No. 28-4 (“Investigation Report”) at 469.) After data had been collected over the course of
approximately one month, Kreuzer was called in to discuss the findings with Shore. (Kreuzer
Dep. at 360-62, 369-70; Investigation Report at 469-71, 473-75.)
During the interview, Kreuzer did not dispute the findings of the investigation, showing
Kreuzer had misused approximately 27.9 hours of ODOT time, and answered all questions
honestly.9 (Investigation Report at 469-71, 477-578.) She even recalls responding, “‘Yes, 100
percent.’” when Shore stated, “‘It appears that you were just killing time.’” (Kreuzer Dep. at
369-70.) At no time during the interview did Kreuzer excuse her behavior by explaining her
mental health or any issues she had with Guth. (Id. at 372, 382-84.)
When the interview concluded, Kreuzer was informed that she was placed on
administrative leave, escorted from the building and her “keys and everything” were taken from
9
For example, Kreuzer testified that she knew taking her ODOT-owned vehicle home had been a violation of
ODOT policy since the early 2000s (Kreuzer Dep. at 348), that she did so anyways, though she claims that she was
still working while she was at home. (Id. at 358-59.) She also testified, however, that she was never given
permission to work from home and that it was “highly unlikely” that her supervisor, James, gave anyone permission
to work from home. (Id. at 368-69; James Dep. at 208-09.) Additionally, Kreuzer concedes that she sometimes
conducted personal business on ODOT time, such as shopping at Gabriel Brothers. (Kreuzer Dep. at 371.)
8
her. (Id. at 359, 70; Investigation Report at 474; Doc. No. 28-5 (“Administrative Leave Letter”).)
She then contacted her union representative, Rusty Burkepile. (Kreuzer Dep. at 360.) After her
first grievance hearing, Burkepile “essentially said you'll never get your job back and it doesn't
matter what you have. You're never going to get your job back.” (Id. at 363, 385.)
After being advised that she would not get her job back, Kreuzer emailed James on May
5, 2015, to inform him that she would be applying for disability due to her ADHD and explain
the background of the current situation. (Id. at 393.) In the email, she described her failing
mental health, attributing it to her claim that “[t]he Stark Garage [was] managed with a mentality
of fear and bullying.” (Doc. No. 27-1 (“Email re Disability Retirement”).) Twice she mentioned
her gender; first, stating that her anxiety increased “as another female employee was threatened
about not working the required amount of overtime,” and again when referring to her abusive exhusband, who was a fellow ODOT employee claiming, “This situation, along with being female
and my office location, increased [my] isolation by 10 fold.” (Id. at 243.)
While James is “fairly certain [he] passed [the email] on to [ ] labor relations,” no one
contacted him about it. (Doc. No. 27 (Deposition of David James [“James Dep.”]) at 218.)
Instead, on May 15, 2015, Kreuzer was fired. (Termination Letter.) Kreuzer filed an EEOC
complaint on November 20, 2015, stating she had endured continuing sex discrimination from
November 2014 through her termination in May 2015, as well as retaliation. (Doc. No. 1-1
(“EEOC Complaint”) at 1.)
II. STANDARD OF REVIEW
Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly made and
supported, it shall be granted “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
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An opposing party may not rely on allegations or denials in its own pleading; rather, by
affidavits or by materials in the record, the opposing party must set out specific facts showing a
genuine issue for trial. Fed. R. Civ. P. 56(c)(1). Affidavits or declarations filed in support of or in
opposition to a motion for summary judgment “must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is competent to
testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). A movant is not required to file affidavits
or other similar materials negating a claim on which its opponent bears the burden of proof, so
long as the movant relies upon the absence of the essential element in the pleadings, depositions,
answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
In reviewing summary judgment motions, the Court must view the evidence in a light
most favorable to the non-moving party to determine whether a genuine issue of material fact
exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970);
White v. Turfway Park Racing Ass’n, 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly overruled
on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d
190 (1991). A fact is “material” only if its resolution will affect the outcome of the lawsuit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Determination of whether a factual issue is “genuine” requires consideration of the applicable
evidentiary standards. Thus, in most civil cases the Court must decide “whether reasonable jurors
could find by a preponderance of the evidence that the [non-moving party] is entitled to a
verdict[.]” Id. at 252.
Summary judgment is appropriate whenever the non-moving party fails to make a
showing sufficient to establish the existence of an element essential to that party’s case and on
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which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Moreover, “[t]he
trial court no longer has the duty to search the entire record to establish that it is bereft of a
genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.
1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The nonmoving party is under an affirmative duty to point out specific facts in the record as it has been
established that create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp.
1, 4 (S.D. Ohio 1992) (citation omitted). The non-movant must show more than a scintilla of
evidence to overcome summary judgment; it is not enough for the non-moving party to show that
there is some metaphysical doubt as to material facts. Id. (citation omitted).
III. DISCUSSION
“Title VII [of the Civil Rights Act of 1964] is central to the federal policy of prohibiting
wrongful discrimination in the Nation's workplaces and in all sectors of economic endeavor.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 342, 133 S. Ct. 2517, 186 L. Ed. 2d 503
(2013). The prohibitions of Title VII are two-fold. See id. First, employers may not engage in “an
unlawful employment practice,” including discharging an employee or discriminating against an
employee “with respect to [her] compensation, terms, conditions, or privileges of employment,
because of [the employee]'s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e2(a)(1). Beyond this foundational prohibition, it is also considered an “unlawful employment
practice … to discriminate against any member thereof or applicant for membership, because he
has opposed any practice made an unlawful employment practice by this subchapter, or because
he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Here, Kreuzer claims
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that ODOT violated Title VII by permitting a gender-based hostile work environment and by
terminating her in retaliation for complaining about said environment.10
A. Hostile Work Environment
“When the workplace is permeated with ‘discriminatory intimidation, ridicule, and
insult,’ [Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 91 L. Ed. 2d 49
(1986)], that is ‘sufficiently severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment,’ id. at 67 … (internal brackets and
quotation marks omitted), Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21,
114 S. Ct. 367, 126 L. Ed. 2d 295 (1993).
The analysis of a Title VII hostile work environment claim differs slightly depending
upon whether the alleged harasser was a supervisor or a coworker. Here, Kreuzer argues that
Guth is her supervisor.11 (Opp’n at 1035-36.) But “an employee is a ‘supervisor’ for purposes of
vicarious liability under Title VII if he or she is empowered by the employer to take tangible
employment actions against the victim[.]” Vance v. Ball State Univ., 570 U.S. 421, 424, 133 S.
Ct. 2434, 186 L. Ed. 2d 565 (2013). While Guth was arguably one of Kreuzer’s “supervisors”
during the months of December 2014 through March 2015 when he was responsible for tracking
Kreuzer’s time in ODOT’s electronic timekeeping system, none of the three incidents alleged in
support of her Title VII hostile work environment claim took place during this time period.
(Kreuzer Dep. at 270.) Because Kreuzer cites no facts to support that Guth engaged in sex-based
10
Although Kreuzer initially asserted a claim of sex discrimination in addition to the claims of hostile work
environment and retaliation, she no longer wishes to pursue the claim of sex discrimination. (Opp’n at 1023.)
Accordingly, such claim is abandoned.
11
The argument that Guth was a supervisor contradicts her testimony with respect to the second incident, which was
arguably sex-based harassment. When asked why she had not reported Guth’s comments, Kreuzer answered, “Just -you know, I assumed at that point, since he was not directly involved in my -- he was not my boss. He was just a
coworker. I just really brushed it off….again, he had no influence over my life at ODOT. I didn't work for him.”
(Kreuzer Dep. at 304-05.)
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discriminatory conduct during the time he was arguably her supervisor, he must be treated as a
coworker for purposes of this analysis. Therefore, to defeat summary judgment, Kreuzer must
establish a prima facie case by showing that:
(1) the sexual harassment was unwelcome, (2) the harassment was based on sex,
(3) the harassing behavior 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) the employer knew or should have known of the
harassment and failed to take immediate and appropriate corrective action.
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008) (citations omitted). There is
no dispute as to the first element, but the other three remain in contention.
Before analyzing each of the three disputed elements, the Court will briefly review the
three incidents alleged in support of the claim, described more fully above.12
(1) In April of 2013, Kreuzer was preparing her breakfast in the garage
kitchen, as she did most mornings, when Guth entered the room. (Kreuzer Dep. at
276.) No words were exchanged, but Kreuzer characterized Guth’s body language
as “aggressive,” claiming he “got in [her] personal space and just stood there[.]”
(Id. at 272-73, 276-77.) Specifically, Kreuzer claims there was less than one inch
of space between her shoulder and his chest. (Id. at 276.)
(2) Nearly a year later, in the late winter or early spring of 2014, Kreuzer
slipped and fell on ice in the parking lot. (Id. at 273, 287.) When she told Guth
about the fall and informed him that she was going into the bathroom to inspect
her injuries, Kreuzer claims Guth playfully replied, “‘Hey, let me know if you
need any help in there with that.’” (Id. at 274, 418.)
(3) During the summer of 2014, Kreuzer testified that Guth came into her
office and aggressively asked, “‘Just what do you do all day anyway?’” (Id. at
12
The EEOC Complaint makes no reference to the first incident. (EEOC Complaint.)
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275, 289-91, 418.) When Kreuzer answered the question, she claims that Guth
“glaze[d] over.” (Id. at 275, 289-91.)
1. Based on Sex
Title VII sex-based harassment need not be sexually charged, but instead may include
any “harassing behavior…directed at women and motivated by discriminatory animus against
women[.]” Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999) (collecting cases).
Therefore, even though the first and third incidents involved no sexual innuendo, they may
qualify as sex-based harassment prohibited by Title VII. But Kreuzer must first show that Guth’s
conduct was motivated by discriminatory animus.
To support her argument that Guth’s conduct was motivated by her gender, Kreuzer cites
to “rumors” she heard from other female coworkers13 and to the male-dominated environment at
ODOT, in general. (Kreuzer Dep. at 271-72, 274-75, 278-86, 291-304.) But Kreuzer admits that
she does not know whether his treatment of subordinates differed between men and women
because she only spoke to female workers. (Id. at 325.) Kreuzer has provided no evidence to
establish that Guth’s alleged aggressive behavior was motivated by discriminatory animus, and
not merely poor management style. See, e.g., Grace v. USCAR, 521 F.3d 655, 679 (6th Cir.
2008) (raising the issue of whether discrimination was sex-based, but proceeding with the
analysis) (citation omitted); Conley v. City of Findlay, 266 F. App’x 400, 409 (6th Cir. 2008)
(upholding summary judgment when plaintiff was unable to prove the alleged mistreatment was
because of her sex); Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000)
(reasoning that a Title VII hostile work environment claim was properly dismissed because
The factfinder may consider “evidence of other acts of harassment of which a plaintiff becomes aware during the
period [of] his or her employment, even if the other acts were directed at others and occurred outside of the
plaintiff's presence.” Hawkins, 517 F.3d at 335 (citing, inter alia, Burnett v. Tyco Corp., 203 F.3d 980 (6th Cir.
2000)).
13
14
“[w]hile he may have been subject to intimidation, ridicule, and mistreatment, he has not shown
that he was treated in a discriminatory manner because of his gender”). Since Kreuzer cannot
show there is a genuine issue of material fact that the first and third incidents of alleged
harassment related in any way to her gender, she fails to establish that any alleged harassment
was actionable under Title VII.
2. Severe or Pervasive
Assuming arguendo that all three incidents were based on Kreuzer’s sex, Kreuzer must
then show that Guth’s conduct was “‘sufficiently severe or pervasive to alter the conditions of
[her] employment[.]’” Harris, 510 U.S. at 21 (quoting Meritor, 477 U.S. at 67). That
determination is made by the factfinder who must consider the totality of the circumstances and
apply both an objective and subjective standard. See Harris, 510 U.S. at 21-23; Hawkins, 517
F.3d at 333. A non-exhaustive list of factors that may be considered include: “the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an employee's work
performance.” Harris, 510 U.S. at 23.
Because this is a fact-sensitive inquiry, “[s]ummary judgment is appropriate only if the
evidence is so one-sided that there is no genuine issue of material fact as to whether there was a
hostile work environment.” Hawkins, 517 F.3d at 333 (citing Abeita v. TransAm. Mailings, Inc.,
159 F.3d 246, 250 (6th Cir. 1998)). But the Court must be mindful of the fact that Title VII is not
“a general civility code[.]” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.
Ct. 998, 140 L. Ed. 2d 201 (1998); see also Burnett v. Tyco Corp., 203 F.3d 980, 982 (6th Cir.
2000) (citation omitted). Instead, “it forbids only behavior so objectively offensive as to alter the
‘conditions’ of the victim's employment.” Oncale, 523 U.S. at 81. “‘[S]imple teasing,’ [Oncale,
15
523 U.S. at 82], 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, 787, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998).
Here, ODOT concedes that “the Court may assume that Kreuzer subjectively found
Guth’s conduct to be hostile,” satisfying the subjective standard. (Reply at 1046.) But ODOT
argues that Kreuzer has failed to provide sufficient evidence to satisfy the objective standard.
(Mot. at 819-21; Reply at 1046.) Therefore, the issue remains as to whether a reasonable person
in Kreuzer’s position would have considered the conduct alleged to be sufficiently severe or
pervasive as to create a hostile work environment under Title VII. Harris, 510 U.S. at 21; see
also Oncale, 523 U.S. at 81 (“[T]he objective severity of harassment should be judged from the
perspective of a reasonable person in the plaintiff's position, considering ‘all the
circumstances.’”) (citation omitted).
The objective standard is not one easily met, with courts heeding the Supreme Court’s
instruction that, to be actionable under Title VII, “conduct must be extreme to amount to a
change in the terms and conditions of employment[.]” Faragher, 524 U.S. at 788 (emphasis
added); see, e.g. Daniels v. Pike Cty. Comm’rs, 706 F. App’x 281, 289-90 (6th Cir. 2017)
(upholding summary judgment for the employer when a male supervisor regularly treated male
employees differently than female employees and made demeaning remarks to female
employees); Burnett, 203 F.3d at 985 (“[A] single battery coupled with two merely offensive
remarks over a six-month period does not create an issue of material fact as to whether the
conduct alleged was sufficiently severe to create a hostile work environment.”); Clark v. United
Parcel Serv., Inc., 400 F.3d 341, 344-45, 351-52 (6th Cir. 2005) (concluding the following facts
insufficient to establish a prima facie hostile work environment claim: a male supervisor told
16
sexual jokes in front of a female subordinate, twice touched a vibrating pager on her upper thigh
and asked if it “felt good,” and acted as if he was trying to look down her overalls in front of
another supervisor); Hale v. Vill. of Madison, 493 F. Supp. 2d 928, 931-32, 937-38 (N.D. Ohio
2007) (concluding there was no genuine issue of material fact when, over the course of
approximately five years, a male employee made “vulgar comments” to a female employee “on a
monthly basis rather than a frequent basis,” leaned in several inches “as if to kiss her” several
times, and once “leaning his body hard enough against [her] so as to knock her off her feet”).
In this case, the three discrete incidents occurred over the course of nearly a year and a
half. While the first involved an intrusion of “personal space,” none involved any physical
contact. Further, the second incident involving an arguably sexually-charged remark was made
out of earshot of any coworkers and was more akin to “the sporadic use of abusive language,
gender-related jokes, and occasional teasing,” Faragher, 524 U.S. at 788 (quotation marks and
citation omitted), than “physically threatening or humiliating” language. Harris, 510 U.S. at 23.
Kreuzer herself stated that she did not report the incident because she “just thought that it wasn't
significant enough at that point[.]” (Kreuzer Dep. at 287-88.) Similarly, Kreuzer characterized
the third incident as “inappropriate but not monumental,” stating, “all he did was ask me what I
did all day.” (Id. at 305.)
Although this is a fact-sensitive inquiry, considering the totality of the circumstances,
including Kreuzer’s descriptions of the incidents, the facts do not support an inference that
Guth’s conduct was “so objectively offensive as to alter the ‘conditions’ of [a reasonable person
in her position’s] employment.” Oncale, 523 U.S. at 81. In fact, the incidents did not even
change the conditions of Kreuzer’s employment as she continued working without issue for
several months, at which time she agreed to allow Guth to oversee her time using the Kronos
17
system. Because Kreuzer’s allegations fall far short of creating a genuine issue of material fact as
to whether Guth’s conduct was sufficiently severe or pervasive to create a hostile work
environment actionable under Title VII, she fails to establish the third element of the claim.
3. Knew or Should Have Known
Finally, even if Guth’s conduct was sex-based and “severe or pervasive,” ODOT would
be vicariously liable “only if it was negligent in controlling working conditions.” Vance, 570
U.S. at 424. Here, Kreuzer admits that she never told anyone about any of the incidents alleged.
(Kreuzer Dep. at 280, 287-88, 305). Because there is no evidence that ODOT “knew or should
have known” about the alleged harassment, Hawkins, 517 F.3d at 338, ODOT may not be
vicariously liable for any alleged Title VII hostile work environment. Therefore, since Kreuzer
has failed to establish that a genuine issue of material fact exists as to three of the four elements
of this claim, ODOT is granted summary judgment.
B. Retaliation
“In an action under Title VII, the plaintiff may prove unlawful retaliation by presenting
direct evidence of such retaliation or by establishing a prima facie case under the McDonnell
Douglas framework.” Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 542 (6th Cir. 2003)
(citations omitted). Here, Kreuzer presents no direct evidence of retaliation so she must establish
a prima facie case by showing:
(1) that she engaged in protected activity; (2) that defendant knew of this exercise
of her protected rights; (3) that defendant consequently took an employment
action adverse to plaintiff; and (4) that there was a causal connection between the
protected activity and the adverse employment action.
Fenton v. HiSan, Inc., 174 F.3d 827, 831 (6th Cir. 1999) (emphasis in original) (citation
omitted). “The burden of establishing a prima facie case in a retaliation action is not onerous, but
18
one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citation
omitted).
1. Protected Activity
ODOT first argues that Kreuzer’s retaliation claim must fail because she did not satisfy
the first element of engaging in “protected activity.” (Mot. at 816-17.) To qualify as “protected
activity,” the plaintiff “must establish that he challenged an employment practice that he
reasonably believed was unlawful.” Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634,
645 (6th Cir. 2015) (citing Johnson v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000)).
While the plaintiff need not make a formal complaint, “Title VII does not protect an employee
[whose] opposition is merely a ‘vague charge of discrimination.’” Id. (quoting Booker v. Brown
& Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989) (further citations omitted).).
To support her claim that she engaged in protected activity under Title VII, Kreuzer cites
verbal complaints made to her supervisors, Reich and James, as well as an email sent to James
after the investigation was complete but prior to her termination. (Opp’n at 1037.) Both of her
verbal complaints referred only to her inability to work as a radio operator under Guth’s
supervision; she made no mention of her gender or mental health, let alone believed illegal
activity.14 (Kreuzer Dep. at 317-19, 326-27, 333.) It was James who she says brought up a
comment of “fucking with a lot of women.” (Id. at 338-40.) With respect to the email to James,
Kreuzer referred to her gender twice but neither brief mention alluded to any perceived illegal
sex-based harassment or discrimination. (Email re Disability Retirement.)
14
Though Kreuzer does not cite her conversation with Guth and Umpleby as a complaint resulting in retaliation, this
interaction also involved no discussion of gender or illegal activity. (Kreuzer Dep. at 334-35.) Instead, Kreuzer
merely explained her inability to manage the radio operation duties in addition to her job as LPA Construction
Monitor. (Id.)
19
Unlike the plaintiff in Yazidan who complained of not only management style but also
discriminatory conduct, Kreuzer’s complaints prior to the investigation relate solely to
management style, if that. See 793 F.3d at 647. The two also differ in that the plaintiff in Yazidan
repeatedly made mention of his belief that legal action could result from the conduct, putting the
employer on notice that illegal conduct was alleged to have occurred; Kreuzer made no mention
of any believed illicit activity, simply complaining she could not adhere to the demands of
performing the duties of both positions. See id. at 646. In sum, there is no evidence to suggest
that Kreuzer’s complaints were “protected activity” under Title VII as none make even a passing
reference to a belief that Title VII prohibited activity had occurred. Thus, Kreuzer has failed to
establish the first prong of a prima facie case.
2. Causal Connection
Even if Kreuzer’s complaints did constitute “protected activity,” she fails to establish that
they were a but-for cause of her termination. The fourth prong of this test requires that
engagement in the protected activity was not merely a “‘motivating’ or ‘substantial’ factor in the
employer’s decision.” Nassar, 570 U.S. at 348 (citation omitted). Instead, “a plaintiff making a
retaliation claim under § 2000e–3(a) must establish that his or her protected activity was a butfor cause of the alleged adverse action by the employer.” Id. at 362. In opposition, Kreuzer
attempts to explain the chain of events which she believes led to her termination, evincing the
alleged retaliation. (Opp’n at 1037-39.) Briefly, she speculates that there was no anonymous
phone call which led to the investigation. Kreuzer believes that Guth used the phone call as a
guise in response to her complaints to Reich and James which were relayed to Guth along with
her refusal directly to Guth to continue performing radio operations. Further, she alleges that
rather than giving her a warning, ODOT completed the investigation in an attempt to remove her
20
from her position. Finally, Kreuzer claims that, after the investigation had been complete and she
had sent the email, ODOT chose to terminate her instead of giving her lesser discipline to avoid
investigation into the complaint.
In sum, Kreuzer appears to allege that “but for” her complaints to Reich and James about
her inability to work as a radio operator under Guth’s supervision, Guth would not have initiated
an investigatory process. And “but for” those same complaints, the investigation uncovering the
extent of her conduct would not have been completed; instead, she would have only been given a
warning at the start of the investigation when her conduct was initially discovered. And finally,
“but for” her email to James, she would have received a lesser form of discipline as opposed to
termination.
Kreuzer claims temporal proximity supports her theory of retaliation, but the facts
support the opposite conclusion. When determining but-for causation was appropriate for Title
VII retaliation claims, the Supreme Court hypothesized,
Consider in this regard the case of an employee who knows that he or she is about
to be fired for poor performance, given a lower pay grade, or even just transferred
to a different assignment or location. To forestall that lawful action, he or she
might be tempted to make an unfounded charge of racial, sexual, or religious
discrimination; then, when the unrelated employment action comes, the employee
could allege that it is retaliation.
Nassar, 570 U.S. at 358. Kreuzer provides no evidence to suggest that that is not precisely what
occurred here. At no time prior to the investigation did Kreuzer herself make any complaint of
illegal sex-based discriminatory conduct on the part of Guth. Even when she was interviewed
through the course of the investigation, she did not suggest that Guth’s conduct was illegal or
sex-based. Instead, she wrote the email explaining her conduct found to be in violation of ODOT
policy only after she was told that termination was likely. Even then, the email makes only a
passing reference to her gender without any allegation that she believed Guth’s conduct itself to
21
be sex-based or illegal. Additionally, it was several months after her termination that she first
filed the EEOC complaint alleging sex-based discrimination. (EEOC Complaint.)
Kreuzer points to nothing in the record, including her testimony, which would arguably
suggest that her complaints were a but-for cause of her termination.
Because Kreuzer has produced no evidence from which a reasonable jury could conclude
she engaged in protected activity, let alone that her engagement in such activity was a but-for
cause of her termination, there is no genuine issue of material fact and summary judgment is
granted to ODOT.
IV. CONCLUSION
For all of the foregoing reasons, ODOT’s motion for summary judgment is GRANTED,
and this case is closed.
IT IS SO ORDERED.
Dated: August 13, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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