Gonzalez v. Hostetler Trucking, Inc.
Filing
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OPINION AND ORDER granting in part and denying in part 26 Motion for Summary Judgment. Defendants Motion is GRANTED with respect to Gonzalezs federal and state law retaliation claims (Counts 3 and 7 of the Amended Complaint), and common law natio nal origin harassment claim (contained in Count 6 of the Amended Complaint). Defendants Motion is DENIED with respect Plaintiffs state and federal law hostile work environment claims (Counts 1, 2 and 6) and Plaintiffs common law negligent retention and supervision claims (Counts 4 and 5). Signed by Judge Algenon L. Marbley on 9/12/2013. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALFONSO GONZALEZ,
Plaintiff,
v.
HOSTETLER TRUCKING, INC.,
Defendant.
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Case No. 2:11-CV-137
JUDGE ALGENON L. MARBLEY
Magistrate Judge Abel
OPINION & ORDER
This matter is before the Court on the Defendant Hostetler Trucking, Inc.’s (the
“Company” or “Defendant”) Motion for Summary Judgment against Plaintiff Alfonso Gonzalez
(“Gonzalez”), pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 26.) For the
foregoing reasons, Defendant’s Motion is GRANTED in part and DENIED in part.
I. BACKGROUND
A. Factual Background
Defendant Hostetler Trucking is a trucking and farming business, owned by Nelson
Hostetler. Nelson’s wife, Fern Hostetler, is president of the Company. Defendant also employs
Jeff Hostetler and Kyle Hostetler, Fern and Nelson’s sons. Fern and Nelson spend the winter
months, from approximately December 1 to April 1, in Florida, and Jeff Hostetler acts as the onsite supervisor of operations during their absence. (F. Hostetler Aff., Doc. 27-6, ¶ 8; N. Hostetler
Aff., Doc. 27-5 at 17.)
Gonzalez, a Hispanic-American of Mexican descent, was employed by Hostetler from on
or about September 9, 2009 until April 5, 2010. (See F. Hostetler Aff., Doc. 27-6, ¶ 2.) Although
Gonzalez did not have a specific job title, see id. at ¶6, he assisted the shop mechanic who
worked on the Company’s trucks. (N. Hostetler Dep., Doc. 27-5 at 14.) At the time of
Gonzelez’s hiring, Christopher Mayhorn was, in Gonzalez’s words, Hostetler Trucking’s “head
mechanic.” (K. Hostetler Dep., Doc. 27-13 at 14.) Gonzalez testified that Mayhorn “got
[Gonzalez] the job,” and Nelson hired Gonzalez after only a brief exchange, based on Mayhorn’s
recommendation. (Gonzalez Dep. 27-1 at 41.) Gonzalez further testified that Mayhorn directed
his activities and trained him to do mechanical repairs on semi-trucks, including changing tires,
brakes, lights, oil, filters and working on transmissions and alternators. (Gonzalez Dep. 27-1 at
42-43.) Sometime after Gonzalez was hired, Mayhorn left his position and was replaced with
John Mercer (“Mercer”), who purportedly performed the same duties with respect to Gonzalez.
(Gonzalez Dep., Doc. 27-1 at 55-56.)1
Gonzalez also asserts that he was supervised by Nelson, Jeff and Kyle Hostetler, and that
he received directives from one or more of these individuals daily. (Id. at 46-47; F. Hostetler
Aff., Doc. 27-6, ¶¶ 7, 9.) Defendant also employed Christopher Hanscel (“Hanscel”), a supervisor
who worked primarily on the farming side of the Company’s operations. (Id. at 56-57; F.
Hostetler Aff., Doc. 27-6, ¶¶ 3-4.) Although Defendant asserts that Gonzalez had limited contact
with Hanscel given their respective positions, (see F. Hostetler Aff., Doc. 27-6, ¶¶ 3-4), Gonzalez
testified at his deposition that he would see Hanscel when Hanscel came to the mechanic’s area
to pick up tools, or when Hanscel was driving equipment on company property. (Gonzalez Dep.,
Doc. 27-1 at 56-57.)
Gonzalez testified that, on a daily basis, Mercer and Kyle Hostetler called him names
including “spic,” “spic bitch,” “wetback nigger,” and “wetback.” (Id. at 64, 68, 72-73, 77-80.)
1
Hostetler asserts that Nelson Hostetler was actually Gonzalez’s supervisor, but concedes that Gonzalez worked
with Mercer during his employment. (F. Hostetler Aff., Doc. 27-6, ¶¶ 7, 9.)
2
Among other incidences, Gonzalez testified that Kyle called him a “wetback” 5-6 times per day,
(id. at 72), and called him a “spic” about 15 times during the course of Gonzalez’s employment,
and a “spic bitch” once. (Id. at 69.) Gonzalez testified that he asked Kyle and Mercer to stop
referring to him in that manner “numerous times,” (id. at 72), and recalls specifically telling Kyle
not to call him a “spic bitch.” (Id. at 69-70.) Gonzalez further testified that he asked Mercer to
stop by pointing to his nametag and saying, “This is my name right here,” and that Mercer would
respond by saying, “[Your] name is wetback nigger.” (Id. at 79.) Gonzalez also testified at his
deposition that this name-calling was done in the presence of other co-workers and supervisors,
including Jeff Hostetler. (Id. at 70-71, 73, 75, 78-79.)
Gonzalez also testified that, on approximately March 25, 2010, he had a conversation
with Nelson Hostetler, during which Nelson Hostetler notified him that Hanscel did not like
“wetbacks” and “niggers.” (Gonzalez Dep., Doc. 27-1 at 65-67, 106.) Defendant maintains that it
is extremely unlikely that any conversation between Gonzalez and Nelson Hostetler took place,
as Nelson lives in Florida from December 1 thru April 1. Hanscel denies ever making such a
comment to Nelson Hostetler. (Hanscel Dep., Doc 27-15 at 7-8 and 13.) Gonzalez does not
assert that Hanscel never made such a comment directly to him, and testified at his deposition
that the two rarely, if ever, spoke during the course of Gonzalez’s employment. (Gonzalez Dep.,
Doc. 27-1 at 65-66.)
The last day Gonzalez worked at Hostetler was March 30, 2010. (See F. Hostetler Aff.,
Doc. 27-6, ¶ 2.) Gonzalez called in sick via text message on March 31, 2010, April 1, 2010 and
April 2, 2010. (Id.; Text Msg. Correspondence, Doc. 27-18.) On April 5, 2010, Gonzalez sent
Nelson Hostetler a text message notifying him that Gonzalez was quitting and would not be
returning to work. The text message stated: “Hey this is Papas [Gonzalez]. I won’t be coming
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back because I do not feel safe working around someone you said don’t like Mexicans and
niggers.” (Gonzalez Dep., Doc. 27-1 at 104; Text Msg. Correspondence, Doc. 27-18.)
Gonzalez testified he met with an attorney about the alleged discrimination prior to
quitting his position with the Company. (Gonzalez Dep., Doc. 27-1 at 81.) The attorney sent
Defendant a letter dated April 5, 2010 outlining the alleged discrimination and making a
monetary demand. Gonzalez testified that he did not return to work because he “really felt like it
would be harmful for [him] to still work there” once the Company received the letter, and he
“felt fear for his life.” (Id.)
Defendant denies Gonzalez’s allegations of harassment and a hostile work environment.
In particular, Defendant counters that the Company has a robust anti-harassment policy, and
offers affidavits and deposition testimony from various employees (and members of the Hostetler
family), averring that they never witnessed any harassment. (See, e.g. F. Hostetler Aff, Doc. 276, ¶¶ 12-16.) Although Kyle admits that he called Gonzalez a “wetback” occasionally, he insists
that he did so in a joking manner. Moreover, although Kyle admitted in his deposition that these
terms were somewhat degrading, he asserted that he did not believe they were offensive to
Gonzalez because Gonzalez referred to himself as a “wetback” and a “spic,” and never requested
that Kyle stop calling him those names. (K. Hostetler Dep., Doc. 27-13 at 21, 24, 26, 31.)
Gonzalez denies calling himself these names. (Gonzalez Dep., Doc. 27-1 at 110.) Defendant also
argues that Gonzalez admitted in his deposition that he never felt threatened by any of the name
calling because he could handle himself and simply ignored what they were saying. (Id. at 81.)
Defendant also highlights that Gonzalez admitted in his deposition that he did not report
the incidents to either Nelson or Fern Hostetler, (Gonzalez Dep., Doc. 27-1 at 70-74,) despite the
fact that Gonzalez stated in an affidavit accompanying a subsequent Ohio Civil Rights
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Commission complaint that he reported these incidents to management. (See OCRC Aff., Doc.
27-9.) Defendant further seeks to undermine Gonzalez’s credibility by pointing out
inconsistencies between Gonzalez’s deposition testimony and his interrogatory answers, with
respect to the specific names Gonzalez alleges he was called, and the alleged frequency of those
epitaphs. (See Def.’s Mem. in Support, Doc. 27 at 2 n.2, 6 n.6, 7 n.8.)
B. Procedural History
Plaintiff filed this action against Defendant on February 11, 2011, alleging: (1) racial
harassment, in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e), et seq. (“Title
VII”); (2) national origin harassment, in violation of Title VII; (3) retaliation in violation of Title
VII; (4) common law negligent retention; and (5) common law negligent supervision. (Doc. 1.)
On September 1, 2011, Gonzalez amended his complaint to include claims for: (6) national
origin harassment pursuant to the Ohio Civil Rights Act, O.R.C. § 4112.99 and Ohio common
law; and (7) retaliation pursuant to the Ohio Civil Rights Act. (Doc. 10.) Defendant denies any
illegal conduct.
On April 19, 2012, Defendant moved to dismiss the suit for failure to prosecute. (Doc.
20.) This Court denied Defendant’s motion in an Order dated October 29, 2012. (Doc. 25.)
On October 31, 2012, Defendant moved for summary judgment on all claims. (Doc. 26.)
Plaintiff opposes Defendant’s motion only with respect to the federal and state law harassment
claims, and the common law negligent retention and supervision claims. (Doc. 30 at 3 n.2.)
Defendant’s Motion has been fully briefed, and the Court heard Oral Argument from counsel.
These matters are therefore ripe for review.
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II. STANDARD OF REVIEW
Summary judgment is proper if there is no genuine issue of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of
that fact would establish one of the elements of a claim and would affect the application of
governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)).
A movant for summary judgment meets its initial burden “by ‘showing’ – that is,
pointing out to the district court – that there is an absence of evidence to support the nonmoving
party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir.1991) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts
showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to
“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess
the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227,
230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir.
1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and
reasonable inferences must be viewed in the light most favorable to the party opposing the
motion. Pucci, 628 F.3d at 759 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986)).
III. LAW AND ANALYSIS
Plaintiff does not oppose Defendant’s Motion with respect to Gonzalez’s federal and state
law retaliation claims (Counts 3 and 7 of the Amended Complaint), or Gonzalez’s common law
national origin harassment claim (contained in Count 6 of the Amended Complaint). (Pl.’s Mem.
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Contra, Doc. 30, 3 n.2.) Summary Judgment is therefore GRANTED as to these claims. The
Court considers Defendant’s Motion with respect to the remaining claims below.
A. Hostile Work Environment Claims
Gonzalez’s harassment claims under Title VII and the Ohio Civil Rights Act (Counts 1,
2, and 6 of the Amended Complaint) are analyzed under the same framework, and are properly
viewed as hostile work environment claims. Title VII prohibits discrimination by an employer
on the basis of a person’s race, color, religion, sex or national origin. 42 U.S.C. § 2000(e), et
seq. Such “illegal discrimination may be found when a plaintiff establishes that ‘the workplace is
permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and create an abusive working
environment.’” Russell v. University of Toledo, 537 F.3d 596, 608 (6th Cir. 2008) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
As the Sixth Circuit has confirmed, “[t]he McDonnell Douglas burden-shifting approach
also applies to hostile-work-environment claims.” Clay v. UPS, 501 F.3d 695, 706 (6th Cir.
2007). To establish a prima facie case of a hostile work environment based on racial harassment,
Gonzalez must show:
(1) [ ]he is a member of a protected class; (2)[ ]he was subjected to unwelcomed
racial harassment; (3) the harassment was race based; (4) the harassment
unreasonably interfered with [his] work performance by creating an environment
that was intimidating, hostile, or offensive; and (5) employer liability.
Id. (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th Cir. 1999)).
Here, there is no question that Gonzalez was a member of a protected class, or that the
conduct alleged – if it took place – would constitute harassment on the basis of race and/or
national origin. Rather, Defendant takes issue with the fourth prima facie element, and argues
that the conduct alleged “was not sufficiently severe or pervasive to constitute actionable
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harassment.” (Def.’s Mem. in Support, Doc. 27, 10.) Defendant also argues that Gonzalez cannot
satisfy the fifth prima facie element – employer liability – because the Company took reasonable
steps under the circumstances to prevent harassment by its personnel. (Id. at 14.)
1. Creation of a Hostile Work Environment
As the Sixth Circuit has explained, “[w]hether harassing conduct is sufficiently severe or
pervasive to establish a hostile work environment is ‘quintessentially a question of fact.’”
Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 333 (6th Cir. 2008) (quoting Jordan v. City of
Cleveland, 464 F.3d 584, 597 (6th Cir.2006) (internal quotation marks omitted)). In order “[t]o
determine whether a work environment is ‘hostile’ or ‘abusive,’ courts look at the totality of the
circumstances.” Id. (quoting Harris, 510 U.S. at 23). Thus, ‘the issue is not whether each
incident of harassment standing alone is sufficient to sustain the cause of action in a hostile
environment case, but whether – taken together—the reported incidents make out such a case.”
Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir. 1999) (quoting Williams v. General
Motors Corp., 187 F.3d 553 (6th Cir. 1999)).
In determining whether a hostile work environment exists, a fact-finder evaluates the
conduct at issue by both an objective and subjective standard. Hawkins, 517 F.3d at 333 (citing
Harris, 510 U.S. at 21-22). Thus, a plaintiff must establish “both that the harassing behavior was
‘severe or pervasive’ enough to create an environment that a reasonable person would find
objectively hostile or abusive, and that he or she subjectively regarded the environment as
abusive.” Id. (citing Harris, 510 U.S. at 21-22). When considering whether a plaintiff has met
these standards, “[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.”
Id. (citing Abeita v. Transam. Mailings, Inc., 159 F.3d 246, 250 (6th Cir. 1998)).
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a. Objective Standard: Severe or Pervasive
To be actionable, it is not enough that the conduct at issue is merely offensive, id. (citing
Harris, 510 U.S. at 21); “[i]nstead, the workplace must be permeated with ‘discriminatory
intimidation, ridicule or insult’ sufficiently severe or pervasive to alter the conditions of
employment.” Id. (quoting Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-67 (1986)). As the
Sixth Circuit has explained, “[t]he determination of whether harassing conduct is sufficiently
severe or pervasive to establish a hostile work environment is not susceptible to a
‘mathematically precise test.’” Hawkins, 517 F.3d at 333 (quoting Abeita, 159 F.3d at 251)
(alteration original). A nonexhaustive list of factors for courts to consider includes “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance.” Id. (quoting Jordan v. City of Cleveland, 464 F.3d 584, 597 (6th
Cir. 2006).
Plaintiff argues that egregious invectives like “spic,” “wetback,” and “wetback nigger”
are so severe that even a single usage would be sufficient to create a hostile work environment.
Defendant counters that, in the Sixth Circuit, as a matter of law, “isolated incidents” of racial
remarks “will not amount to discriminatory changes in the terms and conditions of employment.”
Long v. Ford Motor Co., 193 Fed.Appx. 497, 502 (6th Cir. 2006) (holding that episodes of
harassment through racial remarks involving only two individuals on two discrete instances were
not pervasive enough to constitute a hostile or abusive working environment).
Certainly, a reasonable jury could find invectives like “spic,” “wetback,” and “wetback
nigger,” to be objectively offensive and abusive. See Cordova v. State Farm Ins. Companies, 124
F.3d 1145, 1149 (9th Cir. 1997) (“Calling someone a “dumb Mexican” is an egregious and
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bigoted insult, one that constitutes strong evidence of discriminatory animus on the basis of
national origin.”); Torres v. Pisano, 116 F.3d 625, 632-33 (2d Cir. 1997) (“[A] reasonable Puerto
Rican would find a workplace in which her boss repeatedly called her a ‘dumb spic’ and told her
that she should stay home, go on welfare, and collect food stamps like the rest of the ‘spics' to be
hostile.”); E.E.O.C. v. Ceisel Masonry, Inc., 594 F.Supp.2d 1018, 1023 (N.D. Ill. 2009)
(“Unambiguously racial epithets such as [“weback” and “fucking Mexican”] fall on the more
severe end of the spectrum … indeed, it is difficult to imagine epithets more offensive to
someone of Hispanic descent.”) (quoting Cerros v. Steel Technologies, Inc., 398 F.3d 944, 95051 (7th Cir. 2005)). See also Payton v. Receivables Outsourcing, Inc., 840 N.E.2d 236, 241
(Ohio. App. 2005) (in evaluating a claim under the Ohio Civil Rights Act, noting that “[a] single
act of sexual harassment may be sufficient to create a hostile work environment if it is of such a
nature and occurs in such circumstances that it may reasonably be said to characterize the
atmosphere in which a plaintiff must work”).
This Court need not decide, however, whether a single use of the epithets above would be
sufficient to create a hostile work environment, because Plaintiff offers evidence that they were
used by his co-workers and/or supervisors multiple times a day, on an ongoing basis. The Sixth
Circuit has repeatedly “acknowledged that [offensive] comments and harassing acts of a
‘continual’ nature are more likely to be deemed pervasive.” Hawkins, 517 F.3d at 333. See, e.g.,
Abierta, 159 F.3d at 252 (in the context of a hostile work environment claim involving
allegations of sex-based discriminating, holding that “[a] victim's assertion that the harasser's
sexual comments were ‘ongoing,’ ‘commonplace,’ and ‘continuing’ was sufficient to survive
summary judgment on the severe or pervasive test); Jackson v. Quanex Corp., 191 F.3d 647, 662
(6th Cir. 1999) (“While the Court has noted that ‘simple teasing,’ offhand comments, and
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isolated incidents’ ordinarily do not amount to discrimination under Title VII, an abundance of
racial epithets and racially offensive graffiti could hardly qualify as offhand or isolated. Rather,
such continuous conduct may constitute severe and pervasive harassment.”) (internal citations
omitted) (citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998)); Torres v. County of
Oakland, 758 F.2d 147, 151 (6th Cir. 1985) (noting that “continuing use of racial or ethnic slurs
would violate Title VII”); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir.1981)
(“Unquestionably, a working environment dominated by racial slurs constitutes a violation of
Title VII.”).
Here, Gonzalez has presented evidence that he was referred in terms like “spic,”
“wetback,” and “wetback nigger” almost daily – sometimes multiple times per day – by multiple
individuals, in the presence of other co-workers and managers. Thus, viewing this evidence in
the light most favorable to the non-moving party, a reasonable jury could find that the alleged
discriminatory conduct was indeed pervasive, and that Gonzalez’s working conditions were
discriminatorily altered as a result. Defendant’s attacks on Gonzalez’s credibility in this regard
are inapposite: at the summary judgment stage, it is not the role of the trial court to “resolve
factual disputes by weighing conflicting evidence.” Kraus, 915 F.2d at 230. The Court therefore
finds disputed questions of material fact as to whether the conditions of Plaintiff’s employment
were objectively hostile and abusive.
b. Subjective Regard
Plaintiff has also offered evidence of that he subjectively regarded the environment as
abusive. Gonzalez testified at his deposition that he repeatedly asked Mercer and Kyle Hostetler
to stop using those racial invectives, and found them offensive and hurtful. (Gonzalez Dep., Doc.
27-1 at 89-90, 111.) Moreover, his text message to Nelson Hostetler on April 5, 2010 indicated
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that he feared for his safety. (Id. at 81.) Defendant makes much of the fact that Gonzalez never
reported the alleged harassment to Nelson or Fern Hostetler, and argues that if Gonzalez actually
felt abused, threatened and/or offended, he would have reported it. While a reasonable jury
could draw this inference, it could as easily conclude that Gonzalez had good reason not to report
these incidents: one of the primary perpetrators of the alleged harassment was Fern and Nelson’s
son, Kyle. See Jackson, 191 F.3d at 659, 663 (employer has affirmative defense to Title VII
liability only if the plaintiff’s failure to take advantage of corrective opportunities was
“unreasonable”) (Title VII standards for employer liability “nowhere … specify that the plaintiff,
or any other individual, must ‘report’ the offensive conduct … to the employer.”). In any case, at
the summary judgment stage, it is not for this Court to weigh the evidence and make credibility
determinations. Based on the above evidence, the Court finds a dispute of material fact as to
Gonzalez’s subjective regard for his work environment that must be resolved by a jury. Hawkins,
517 F.3d at 333 (“Summary 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.”).
2. Employer Liability
If a plaintiff can show that a hostile work environment existed, he or she must then
establish fifth prima facie element: employer liability. To satisfy this element, a plaintiff must
prove that his employer “‘tolerated or condoned the situation’ or ‘that the employer knew or
should have known of the alleged conduct and failed to take prompt remedial action.’” Jackson.,
191 F.3d at 659 (quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988)).
As this Court has stated previously, “[t]he standards for employer liability differ if the
alleged harasser is a co-worker or a supervisor.” Stayner v. Ohio Dep’t of Rehabilitation, 2011
WL 3900617, *7 (S.D. Ohio Sept. 6, 2011). When a co-worker is the source of the harassment,
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an employer is liable ‘if its response manifests indifference or unreasonableness in light of the
facts the employer knew or should have known.’” Hawkins, 517 F.3d at 338 (citing Blankenship
v. Parke Care Ctrs., 123 F.3d 868, 873 (6th Cir. 1997)) (explaining that, after the Supreme
Court’s decisions in Ellerth and Faragher, “an employer may be held liable when its remedial
response is merely negligent, however well-intentioned,” but applying Blankenship to define
negligence as an employer response that “manifests indifference or unreasonableness in light of
the facts”). In contrast, when the hostile work environment is “created by a supervisor with
immediate (or successively higher) authority over the employee,” the employer is vicariously
liable. Jackson, 191 F.3d at 659 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742
(1998)). This strict liability is subject to an affirmative defense where the allegedly
discriminatory conduct at issue does not include an adverse employment action, such as
discharge, demotion, or undesirable reassignment. Stayner, 2011 WL 3900617 at *7 (citing
Collette v. Stein–Mart, Inc., 126 Fed. Appx. 678, 682 (6th Cir. 2005)); Jackson, 191 F.3d at 659
(citing Ellerth, 524 U.S. at 765).
a. Vicarious Liability For Supervisor Harassment
i. Whether Mercer and Kyle Hostetler Were Supervisors
To determine whether the supervisory standard applies, we first consider whether Mercer
and Kyle Hostetler are properly considered “supervisors.”2 The Supreme Court’s recent decision
in Vance v. Ball State University, 133 S.Ct. 2434 (2013), narrowed the definition of “supervisor”
for the purposes of vicarious liability under Title VII. Specifically, Vance held that “an
employer may be vicariously liable for an employee's unlawful harassment only when the
employer has empowered that employee to take tangible employment actions against the victim,
2
Because Gonzalez does not allege that Hanscel was among those who harassed him – indeed, Gonzalez testified at
his deposition that he had barely any interaction with Hanscel over the course of his employment, Gonzalez Dep.,
Doc. 27-1 at 51, 56 – we do not consider whether Hanscel was a supervisor for the purposes of vicarious liability.
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i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.’” Id. at 2443 (quoting Ellerth, 524 U.S. at 761). Vance considered
hostile work environment claims brought by a catering assistant, Vance, who alleged that she
was repeatedly racially harassed by Davis, a specialist in the catering division. Although the
parties “vigorously dispute[d] the nature and scope of Davis’ duties,” they agreed that Davis “did
not have the power to hire, fire, demote, promote, transfer, or discipline Vance.” Id. Thus,
despite “Davis’ job description, which gave her leadership responsibilities, and [] evidence that
Davis at times led or direct Vance or other employees in the kitchen,” id. at 2449, the Supreme
Court held that Davis was not a supervisor for the purposes of Title VII as a matter of law,
“[b]ecause there [wa]s no evidence that [the employer] empowered Davis to take any tangible
employment actions against Vance.” Id. at 2454.
Because Vance was decided after the matter sub judice was fully briefed, the parties did
not address the legal standard for “supervisor” articulated in that case. In particular, Plaintiff’s
evidence that Mercer and Kyle Hostetler directed Gonzalez’s daily activities is now inapposite –
under Vance, the relevant question is whether Kyle Hostetler or Mercer were empowered to take
tangible employment actions against Gonzalez. The record is unclear as to precisely which
individuals at Hostetler Trucking were empowered to hire, fire, promote or reassign Gonzalez.
Under Vance, however, “tangible employment actions” also include any action that “effects a
significant change in employment status.” Thus, if an individual is empowered by an employer
to make reports, recommendations, or evaluations of an employee that lead directly to a
significant change in that employee’s employment status, that individual would be a “supervisor”
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for the purposes of vicarious liability under Title VII. The record contains evidence that Mercer
was so empowered.
In particular, Gonzalez testified at his deposition that – though Gonzalez started his
employment only after filing an application and talking briefly to Nelson Hostetler – Mercer’s
predecessor, Mayhorn, recommended Gonzalez and “got [Gonzalez] the job.” (Gonzalez Dep.,
Doc. 27-1 at 41.) Moreover, the record contains evidence that it was Mayhorn, and later Mercer,
who trained Gonzalez, oversaw and reviewed Gonzalez’s work performance, and assigned
Gonzalez concrete individual tasks associated with the larger repair and maintenance projects
identified by Nelson at the Company’s morning meetings. Construing this evidence in
Gonzalez’s favor, a reasonable jury could find that the application and brief exchange associated
with Gonzalez’s hiring were merely pro forma – particularly given that Nelson was not himself a
mechanic, and thus had limited ability to evaluate Gonzalez’s qualifications for the position. As
such, even if hiring, firing, promotion and transfer decisions for Gonzalez’s position ultimately
rested with Nelson Hostetler, a reasonable jury could conclude that Mayhorn’s judgment was
dispositive in the decision to hire Gonzalez. Further, in light of the evidence that Mercer replaced
Mayhorn and held the same position and influence within the Company, a reasonable jury could
likewise conclude that Mercer’s report, recommendation, or evaluation with respect to Gonzalez
could similarly effect a significant change in Gonzalez’s employment status. If a jury finds that
a negative report or recommendation from Mercer had the power to effect a significant change in
Gonzalez’s employment status (e.g., termination, discharge, demotion or transfer), then Mercer
would be a “supervisor” for the purposes of vicarious liability. Thus, there remains a question of
material fact as to whether Mercer was Gonzalez’s “supervisor” for the purposes of Title VII.
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ii. Affirmative Defense
When allegations of harassment involve a supervisor, the Supreme Court distinguishes
between supervisor harassment that includes an adverse employment action and supervisor
harassment that does not. Stayner, 2011 WL 3900617 at *7. If the conduct includes an adverse
employment action, such as discharge, demotion, or undesirable reassignment, then the employer
is strictly liable. Id. (citing Collette, 126 Fed. Appx. at 682 (6th Cir. 2005)). In contrast, where,
as here, there is no tangible employment action,3 “an employer may raise an affirmative defense
to liability by proving, by a preponderance of the evidence, that (1) it exercised reasonable care
to prevent and correct promptly any racially harassing behavior, and (2) the plaintiff employee
unreasonably failed to take advantage of corrective opportunities provided by the employer.”
Jackson, 191 F.3d at 659 (citing Ellerth, 524 U.S. at 765).
If Mercer was a “supervisor” for the purposes of Title VII, Defendant bears the burden of
proving its affirmative defense. Defendant argues that it satisfied the first prong of the
affirmative defense because it had an anti-harassment policy in place and Fern and Nelson
Hostetler were not aware of Mercer’s alleged supervisory harassment. Defendant also argues that
the second prong is satisfied by Gonzalez’s admission that he never reported the harassment to
Fern and Nelson Hostetler, and Fern and Nelson’s respective confirmations that no such reports
were filed.
Gonzalez, however, has presented evidence that: (1) Nelson Hostetler was in the office
on a daily basis for the majority of the year; (2) harassment was continuous and ongoing; and (3)
3
Plaintiff argues that there has been an adverse employment action here, in the form of a constructive discharge.
The Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), however, forecloses that
argument in this case. The Suder Court held that, although “a constructive discharge is functionally the same as an
actual termination in damages-enhancing respects … when an official act does not underlie the constructive
discharge, the Ellerth and Faragher analysis … calls for the extension of the affirmative defense to the employer.”
Id. at 148. Because Plaintiff’s constructive discharge arguments are not predicated on any official action by the
Company, Defendant is entitled to avail itself of the Ellerth/Faragher affirmative defense.
16
the harassing conduct took place in the presence of multiple employees, including Jeff Hostetler,
who was undisputedly in charge of on-site operations when his parents were in Florida for the
winter. A reasonable jury who credits this evidence could conclude that Nelson and Fern
Hostetler knew or should have known about Mercer’s conduct, did nothing, and declined to
enforce the Company’s anti-harassment policy. Moreover, should a jury credit Gonzalez’s
evidence about the hostility of the workplace, the fact that a primary perpetrator of the alleged
harassment was the owner’s son, and Gonzalez’s fears for his safety following the mailing of the
April 5, 2010 attorney letter, it could also conclude Plaintiff’s failure to report the discrimination
earlier was not unreasonable. Notably, “nowhere do the above delineated standards [for
employer liability] specify that the plaintiff, or any other individual, must ‘report’ the offensive
conduct … to the employer.” Jackson, 191 F.3d at 663. Rather, as the Sixth Circuit has made
clear, the standard is whether the employer “‘knew or should have known’ of the offenses.” Id.
The Court therefore finds that there is a dispute of material fact as to whether Defendant has met
its burden to prove the affirmative defense to vicarious liability for supervisory harassment, if
indeed Mercer was a “supervisor” for the purposes of Title VII.
b. Liability for Co-Worker Harassment
Even if Mercer is not a supervisor, there remains a dispute of material fact as to whether
employer liability exists with respect to the alleged conduct of Mercer and Kyle Hostetler. As
discussed above, “employer liability in cases of coworker harassment is not derivative, but
instead depends on the employer's ‘own acts or omissions.’” Hawkins, 517 F.3d at 340 (citing
Blankenship v. Parke Care Ctrs., 123 F.3d 868, 873 (6th Cir. 1997)). Thus, when a co-worker is
the source of the harassment, an employer is liable ‘if its response manifests indifference or
unreasonableness in light of the facts the employer knew or should have known.’” Id. at 338
17
(citing Blankenship v. Parke Care Ctrs., 123 F.3d 868, 873 (6th Cir. 1997)). In contrast, an
employer’s response “is generally adequate … if it is “reasonably calculated to end the
harassment.” Id. at 340 (citing Jackson, 191 F.3d at 663-64) (holding that the employer failed to
prove that its actions were “a reasonable attempt to prevent and correct the problem of racially
harassing behavior”).
As described above, Gonzalez has presented evidence that Mercer and Kyle Hostetler’s
harassment took place on a daily basis, in the presence of multiple employees including Jeff
Hostetler, and that Nelson Hostetler was in the office daily for the majority of the year.4 Viewing
the facts in the light most favorable to Gonzalez as the non-moving party, a reasonable jury
could conclude that Nelson Hostetler knew or should have known of the harassment. Id. (citing
Matsushita Elec. Indus. Co., 475 U.S. at 587). Moreover, it is undisputed that Defendant did not
intervene or otherwise take any action to end Mercer and Kyle Hostetler’s alleged behavior
toward Gonzalez. Thus, if a fact-finder determines that Defendant knew or should have known
of such conduct, it could likewise find that Defendant’s response was indifferent and
unreasonable. Accordingly, there exist genuine issues of material fact precluding the grant of
summary judgment.
Based on the above, Defendant’s Motion for Summary Judgment is DENIED with
respect to Gonzalez’s federal and state law hostile work environment claims, as stated in Counts
1, 2 and 6 of the Amended Complaint.
B. Negligent Retention and Supervision
Gonzalez also asserts claims under Ohio common law for negligent retention and
supervision. Under Ohio Common law, the elements of negligent supervision and retention are:
4
Gonzalez’s evidence that Nelson was aware that Hancsel harbored racial animus toward “Mexicans” and “niggers”
is inapposite, as Hanscel is not among the alleged perpetrators of the ongoing harassment on which Gonzalez’s
claims are based.
18
1) an employment relationship; 2) incompetence of the employee; 3) actual or
constructive knowledge of the incompetence by the employer; 4) an act or
omission by the employee which caused the plaintiff's injuries; and 5) negligent
retention of the employee by the employer, which action is the proximate cause of
the plaintiff's injuries.
Payton v. Receivables Outsourcing, Inc., 840 N.E.2d 236, 247 (Ohio App. 2005) (citing Mills v.
Deehr, Cuyahoga App. No. 82799, 2004-Ohio-2338, 2004 WL 1047720, at ¶ 13 (Ohio App.
2004); Steppe v. Kmart, 737 N.E.2d 58 (Ohio App. 1999)).
As a threshold matter, Defendant argues that Plaintiff’s negligent supervision and
retention claim nevertheless fails because Gonzalez has not alleged and cannot prove that any of
Hostetler Trucking’s employees are individually liable to him at tort. Plaintiff contends that
Ohio law imposes no such requirement.
In Strock v. Pressnell, 527 N.E.2d 1235, (Ohio 1988), the Ohio Supreme Court
considered whether a church could be held liable for negligent supervision or training of a
minister who allegedly engaged in an affair with woman while providing marriage counseling to
the woman and her then-husband. After concluding that the minister had committed no
actionable wrong against the former husband, the Strock Court explained:
It is axiomatic that for the doctrine of respondeat superior to apply, an employee
must be liable for a tort committed in the scope of his employment. Likewise, an
underlying requirement in actions for negligent supervision and negligent training
is that the employee is individually liable for a tort or guilty of a claimed wrong
against a third person, who then seeks recovery against the employer. Because no
action can be maintained against [the minister] in the instant case, it is obvious
that any imputed actions against the church are also untenable.
Id. at 1244. In cases where the alleged underlying conduct at issue is a common law tort,
subsequent Ohio Court of Appeals decisions, as well as the Sixth Circuit, have
interpreted Strock to require that a plaintiff allege and prove that the employee who
perpetrates that conduct is individually liable to the plaintiff for that tort. See Greenberg
19
v. Life Insurance Co. of Virginia, 177 F.3d 507, 517-18 (6th Cir. 1999) (plaintiffs could
not assert negligent training and supervision where they could not prove any set of facts
that would support their claims of fraud and negligent misrepresention); Myers v.
Goodwill Indus. of Akron, Inc., 721 N.E.2d 130, 134 (Ohio Ct. App. 1998) (negligent
retention claim against employer failed where plaintiff could not show that employee's
conduct rose to the level of intentional infliction of emotional distress); Campbell v.
Colley, 680 N.E.2d 201, 206 (Ohio Ct. App. 1996) (because dispatcher could not be
liable for negligence due to statutory immunity, employer also could not be held liable)).
In Minnich v. Cooper Farms, Inc., 39 Fed. Appx. 289 (6th Cir. 2002)
(unpublished), the Sixth Circuit considered an Ohio negligent retention and supervision
claim that rested on alleged sexual harassment by an employee. In light of Strock and its
progeny, Minnich surmised that, under Ohio law, a plaintiff subject to wrongful
discriminatory conduct would also have to demonstrate a viable claim against an
employee to sustain a negligent retention claim against an employer. Because there was
no avenue by which the plaintiff could hold her co-worker personally liable for the
wrongs done – the statute of limitations for assault and battery had lapsed, the employee
could not be held individually liable for sexual harassment under Title VII (which
provides only for employer liability), see Wathen v. Gen. Elec. Co., 115 F.3d 400, 405
(6th Cir. 1997), and the employee was not a supervisor or manager who could be liable
for harassment under O.R.C. § 4112.01(A), see Genaro v. Cent. Transport, Inc., 703
N.E.2d 782, 785 (Ohio 1999) – Minnich concluded that the district court had not erred in
granting summary judgment to the Defendant on that claim. Minnich, 39 F.3d at 296.
20
Subsequently, however, an Ohio Court of Appeals for the first time considered the
viability of negligent retention and supervision claims premised on discriminatory employee
harassment. Specifically, Payton v. Receivables Outsourcing, Inc., 840 N.E.2d 236, 247 (Ohio
Ct. App. 2005), considered whether a plaintiff subject to sexual harassment by a co-worker could
sustain state law claims against her former employer for: 1) hostile work environment; 2)
retaliation; and 3) negligent supervision and retention. Id. On the facts of the case, the plaintiff
could not have held her co-worker individually liable for discrimination under O.R.C. § 4112,
see Genaro, 703 N.E.2d at 785, nor for the common law tort of sexual harassment, which
requires proof of the same elements necessary to establish a statutory claim for hostile work
environment sexual harassment under O.R.C. § 4112.02(A). See Bell v. Cuyahoga Cmty. Coll.,
717 N.E.2d 1189, 1193 (Ohio Ct. App. 1998) (citing Kerans v. Porter Paint Co., 575 N.E.2d 428
(Ohio 1991)). Nevertheless, Payton held that the plaintiff had established genuine issue of
material fact as to all elements of the negligent retention and supervision claim, and, therefore,
reversed the trial court’s grant of summary judgment for the defendant. Payton, 840 N.E.2d at
247.
That a different rule would apply to negligent retention and supervision cases based on
discriminatory harassment and hostile work environment claims makes sense. Where the
underlying employee conduct at issue is a common law tort, a plaintiff’s inability to establish a
viable tort claim means that the plaintiff cannot establish that the employee committed wrongful
acts that caused the plaintiff injury. As such, by definition, the plaintiff cannot satisfy all prima
facie elements of a negligent supervision and retention claim. In contrast, the absence of
individual employee liability under Title VII or O.R.C. § 4112 does not necessarily preclude a
finding that the employee’s conduct was wrongful and caused the plaintiff injury. Thus, as
21
Payton demonstrates, under Ohio law, a plaintiff’s inability to state a claim against an employee
for wrongful discriminatory conduct does not bar employer liability claim unless the barrier to
personal liability also negates an element of the negligent retention and supervision claim. See
Strock, 527 N.E.2d at 1244 (“[A]n underlying requirement in actions for negligent supervision
and negligent training is that the employee is individually liable for a tort or guilty of a claimed
wrong against a third person.”) (emphasis added). As such, this Court defers to the Ohio state
courts’ interpretation of its own laws and here applies the approach employed in Payton.5
Ultimately, however, Gonzalez’s negligent retention and supervision claim would survive
summary judgment even if Ohio law did require that Gonzalez be able to state a viable claim
against the harassing employee. As discussed above, O.R.C. § 4112, imposes individual liability
on managers and supervisors for discriminatory conduct found to be in violation of O.R.C. §
4112. See Genaro, 703 N.E.2d at 785. An individual is a “manager” or a “supervisor” for the
purposes of O.R.C. § 4112, when he or she meets the Title VII standard for “supervisor”
articulated in Vance. Braun v. Ultimate Jetcharters, Inc., No. 5:12-cv-01635, 2013 WL
2873238, *9 (N.D. Ohio July 25, 2013) (citing Plumbers & Steamfitters Joint Apprenticeship
Committee v. Ohio Civil Rights Comm'n, N.E.2d 128, 132 (Ohio 1981) (“[F]ederal case law
interpreting Title VII of the Civil Rights Act of 1964, [42 U.S.C. § ] 2000(e) et seq., ... is
5
Defendant also cites Dortch v. Fowler, 588 F.3d 396 (6th Cir. 2009), for the proposition Gonzalez cannot sustain a
negligent retention and supervision claim unless he alleges and proves that Mercer and/or Kyle Hostetler are
individually liable to him in tort. Dortch considered whether a plaintiff injured in a traffic accident with a tractortrailer could sustain a Kentucky negligent retention claim against the employer of the tractor-trailer driver. Dortch,
588 F.3d at 405. The plaintiff, Dortch, also asserted a separate negligence claim against the tractor-trailer driver,
Fowler. Id. As the Sixth Circuit explained, Fowler’s employer “could be liable to Dortch for negligently supervising
and retaining Fowler only if Fowler caused the traffic accident in question.” Id. Thus, because the jury returned a
verdict in favor of the Fowler on the underlying negligence claim, the Sixth Circuit held that Dortch could not
sustain a negligent retention claim against Fowler’s employer. Id. at 405-406. Thus, again, the absence of a viable
underlying negligence claim negated one of the prima facie elements of negligent supervision and retention –
something that does not necessarily occur in the absence of an individual claim against an employee who
perpetuates a hostile work environment. In any case, even if Dortch were construed to preclude employer liability
under Kentucky law in all cases where the employee cannot be held individually liable (including hostile work
environment cases), as discussed above, Ohio common law imposes no such limitation – as evidenced by the Ohio
Court of Appeals’ decision in Payton.
22
generally applicable to cases involving alleged violations of [Ohio Revised Code] Chapter
4112.”); Vance, 133 S.Ct. at 2443). As described above at length, there exists a genuine question
of material fact as to whether Mercer is a “supervisor” under the meaning of Vance.
Accordingly, there also exists a question of material fact as to whether Mercer could be held
individually liable for discriminatory conduct under O.R.C § 4112.
This Court therefore now turns to the question of whether, construing the evidence in the
light most favorable to the non-moving party, Gonzalez is able to state a prima facie case of
negligent supervision and retention under Ohio law. The first prong of the test for negligent
retention requires that “an employment relationship exists between the employer and the alleged
harasser.” Payton, 840 N.E.2d at 247 (Ohio App. 2005). Here, it is undisputed that Mercer and
Kyle Hostetler were employed by the company. The first prima facie element is, therefore,
satisfied.
The second prong of the negligent retention and supervision test “requires incompetence
on the part of the offending employee.” Id. Payton held that, for the purposes of this prong,
“sexually harassing behavior is per se incompetent behavior.” Id. (“In this context, incompetence
relates not only or exclusively to an employee's lack of ability to perform the tasks that his or her
job involves. It also relates to behavior while on the job inapposite to the tasks that a job involves
and which materially inhibits other employees from performing their assigned job tasks.
Sexually harassing behavior is within that definition.”) (quoting Harmon v. GZK, Inc.,
Montgomery App. No. 18672, 2002 WL 191598, at *46 (Ohio App. Feb. 8, 2002)). Here, as
described above, there is a genuine dispute of material fact about whether Gonzalez encountered
harassment so severe and pervasive that it would materially affect the conditions of his
employment. Under Ohio law, such harassment would be per se incompetent. Payton, 840
23
N.E.2d at 247. Thus, there is likewise a question of material fact as to whether Gonzalez has
satisfied the second prong of the negligent retention and supervision test.
The third prong “is actual or constructive knowledge of the abuse on the part of the
employer.” Id. Defendant argues that Gonzalez has not satisfied this prong, because the
Company had no prior knowledge of the alleged conduct. Moreover, Defendant seeks to
distinguish Payton because the Payton plaintiff had complained to the employer of the harasser’s
conduct on two separate occasions prior to the harassment then at issue in that case.
Nevertheless, the legal standard for articulated in Payton is one of “actual or constructive
knowledge.” Id. (emphasis added). Here, Gonzalez has alleged that the harassment allegedly
perpetrated by Mercer and Kyle Hostetler was continuous and ongoing over the course of
months, in the presence of other employees. If a jury credits that testimony, it could conclude
that the Company had actual or constructive knowledge of Mercer’s and/or Kyle Hostetler’s
conduct well-before Gonzalez left his position. Accordingly, there is a genuine issue of material
fact with respect to the third prong which is properly resolved by a jury.
The fourth prong requires “an act or omission by the employee which caused the
plaintiff's injuries.” Id. As such, the Payton Court found the fourth prong’s “requir[ment that]
an act by the alleged harasser … caused the plaintiff's injuries” to be satisfied for the purposes of
summary judgment where the plaintiff testified that she had experienced “nightmares, loss of
appetite, a sudden inability to relate to men, and daily crying jags to support her allegation of
injury.” Payton, 840 N.E.2d at 247. In this case, Gonzalez has testified that he found Mercer and
Kyle Hostetler’s alleged continuous harassment hurtful, offensive and abusive, and it caused him
distress. Although Defendant argues that Gonzalez experienced no such mental injury,
24
especially in light of Gonzalez’s testimony that he had no real fear until his attorney mailed the
April 5, 2010 letter, this is a matter of credibility to be weighed by the jury.
Finally, the fifth prong “requires negligent retention of the alleged harasser “by the
employer, which action is the proximate cause of the plaintiff's injuries.” Id. This prong is
satisfied “[i]f the employer had prior knowledge of the alleged harasser's incompetence, that is,
his subjecting fellow employees to [] harassment, and despite this knowledge failed to intervene
to prevent a recurrence of the behavior in the workplace.” Id. at 248. Likewise, here, if a jury
credits Gonzalez’s evidence that the Company knew of the harassment and failed to intervene to
prevent its continuation, it could find the fifth prong satisfied.
In light of the above, the Court finds that there are genuine issues of material fact as to
Gonzalez’s common law negligent retention and supervision claims that preclude the grant of
summary judgment. Defendant’s Motion is therefore DENIED with respect to Counts 4 and 5 of
the Amended Complaint.
IV. CONCLUSION
Based on the foregoing, Defendant’s Motion for Summary Judgment is GRANTED in
part and DENIED in part. Defendant’s Motion is GRANTED with respect to Gonzalez’s
federal and state law retaliation claims (Counts 3 and 7 of the Amended Complaint), and
common law national origin harassment claim (contained in Count 6 of the Amended
Complaint). Defendant’s Motion is DENIED with respect Plaintiff’s state and federal law
25
hostile work environment claims (Counts 1, 2 and 6) and Plaintiff’s common law
negligent retention and supervision claims (Counts 4 and 5).
IT IS SO ORDERED.
s/ Algenon L. Marbley
Algenon L. Marbley
United States District Judge
Dated: September 12, 2013
26
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