Howell v. The Buckeye Ranch Inc et al

Filing 60

ORDER granting in part 44 Motion for Summary Judgment. This Court enters summary judgment in favor of Buckeye Ranch on Counts One and Two and dismisses without prejudice Counts Three through Six. The Clerk shall enter judgment accordingly and terminte this action. Signed by Judge Gregory L Frost on 3/27/13. (kn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JODI A. HOWELL,
Plaintiff,
Case No. 2:11-cv-1014
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel

v.
THE BUCKEYE RANCH, INC., et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for consideration of Defendants’ motion for summary
judgment (ECF No. 44), Plaintiff’s memorandum in opposition (ECF No. 53), and Defendants’
reply memorandum (ECF No. 56). For the reasons that follow, this Court finds the motion well
taken in part.
I. Background
Defendant The Buckeye Ranch (“Buckeye Ranch”) is a non-profit organization that
provides services for children at various locations throughout Ohio. Many of these children are
either deaf or hearing impaired, suffer from mental health issues, have substances abuse issues, or
are juvenile sex offenders. Plaintiff, Jodi Howell, is a female who began working for Buckeye
Ranch at its Argo House location on November 10, 2008. Howell=s position was as Youth
Leader, which largely entailed monitoring the activities of residents of Argo House and
transporting the children to counseling appointments, home visits, and special weekend outings to
places such as an amusement park.
From early on in her employment at Argo House, Howell was unhappy with the way the
enterprise was run and with her co-workers. She consistently perceived the children she

supervised and the adults with whom she worked as disrespecting her. Howell reported some of
the alleged offensive conduct to the appropriate Buckeye Ranch individuals, while she did not
report other alleged incidents. Eventually, Howell took administrative leave with pay because
she was purportedly too stressed to work and filed a charge with the Ohio Civil Rights
Commission. After a temporary transfer to another position was arranged, Howell returned to
work in October 2009. She lasted for approximately twelve hours in her temporary position
before she again took leave. Combining leave under a short term disability plan and the Family
Medical Leave Act (“FMLA”), Howell remained off work until January 31, 2010. Throughout
this period, Howell periodically reported new allegations of harassment that Buckeye Ranch then
investigated. She had also applied for long-term disability benefits. Howell’s application for
long-term disability benefits proved unsuccessful, and she never returned to working for Buckeye
Ranch.
Howell subsequently filed the instant action on November 10, 2011. (ECF No. 2.) In her
complaint, she asserts federal claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. '
2000e et seq. for hostile work environment (Count One) and retaliation (Count Two) and state law
claims for discrimination/hostile work environment in contravention of Ohio Revised Code ' 4112
(Count Three), discrimination/retaliation in violation of Ohio Revised Code ' 4112 (Count Four),
intentional infliction of emotional distress (Count Five), and negligent hiring and negligent
retention (Count Six). (ECF No. 2 && 29-65.) Defendants have filed a motion for summary
judgment on all of Howell=s claims. (ECF No. 44.) The parties have completed briefing on the
motion, which is ripe for disposition.
II. Discussion
A. Standard Involved
2

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “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.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion for
summary judgment if the nonmoving party who has the burden of proof at trial fails to make a
showing sufficient to establish the existence of an element that is essential to that party’s case.
See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In viewing the evidence, the Court must draw all reasonable inferences in favor of the
nonmoving party, which must set forth specific facts showing that there is a genuine issue of
material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A
genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson, 477
U.S. at 251-52).
B. Analysis
1. Federal Claims
Howell asserts two federal claims in this litigation, both under Title VII and both against
only Buckeye Ranch. Her discrimination claim in Count One is for a hostile work environment.
To prove discrimination in the form of a hostile work environment, Howell must show that
(1) she was a member of a protected group, (2) she was subjected to unwelcome
3

harassment, (3) the harassment was based upon the employee=s protected status,
such as race or gender, (4) the harassment affected a term, condition, or privilege of
employment, and (5) the defendant knew or should have known about the harassing
conduct but failed to take any corrective or preventive actions. Williams v. Gen.
Motors Corp., 187 F.3d 553, 560-61 (6th Cir. 1999) (discussing the requirements
for proving a hostile work environment claim based upon gender); Moore v. KUKA
Welding Sys. & Robot. Corp., 171 F.3d 1073, 1078-79 (6th Cir. 1999) (setting forth
the elements of a prima facie case for a claim of a hostile work environment based
upon race).
Howard, 70 F. App=x at 281 (citing Farmer v. Cleveland Pub. Power, 295 F.3d 593, 604-05 (6th
Cir. 2002)). The Sixth Circuit has further explained that a Title VII plaintiff must show 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 . . . . Conduct that is not
severe or pervasive enough to create an objectively hostile or abusive work
environmentBan environment that a reasonable person would find hostile or
abusiveBis beyond Title VII=s purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive, the conduct has not actually
altered the conditions of the victim=s employment, and there is no Title VII
violation.
Virgilio v. Potter, 59 F. App=x 678, 681 (6th Cir. 2003) (quoting Harris v. Forklift Sys., Inc., 510
U.S. 17, 21-23 (1993)) (internal quotes and citations omitted); see also Howard, 70 F. App=x at
282.
The touchstone of a hostile work environment claim is thus proof 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.’ ” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65 (1986)). There is both a subjective and an objective prong to this
standard. In other words, “the conduct must be severe or pervasive enough to create an
environment that a reasonable person would find hostile or abusive, and the victim must
subjectively regard that environment as abusive.” Black v. Zaring Homes, 104 F.3d 822, 826 (6th
4

Cir. 1997) (citing Harris, 510 U.S. at 21-22). The question before the Court is thus whether a
reasonable person would have found Howell=s work environment to be hostile or abusive.
A court considering such a question must consider various factors including “[t]he
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. Although the work environment as a
whole must be viewed by a court, including all alleged acts of harassment or abuse, if such acts are
irregular and sporadic rather than continuous and frequent, it is much more difficult to prove a
hostile work environment claim. See id. This is because “not all workplace conduct that may be
described as ‘harassment’ affects a ‘term, condition, or privilege’ of employment within the
meaning of Title VII.” Meritor Sav. Bank, FSB, 477 U.S. at 67. For example, “simple teasing,
offhand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998) (internal citations omitted).
Buckeye Ranch argues that, even necessarily construing the evidence in a light most
favorable to Howell, the Court should conclude that the conduct complained of does not rise to the
level of a hostile work environment. According to Buckeye Ranch, the various incidents about
which Howell complains are not connected to her gender and are so lacking in severity that they
could hardly be regarded under the totality of the circumstances as permeating the workplace with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to affect
Howell as she claims to have been affected. Rather, Buckeye Ranch suggests that Howell
exhibits a heightened sensitivity to any type of physical contact as a result of unspecified acts of
molestation that she believes may have occurred when she was a child.
5

This Court agrees with Buckeye Ranch that no reasonable factfinder could conclude that
many of Howell=s allegations present gender-based and severe conduct. Howell simply fails to
present any link between her gender and the various names Argo House workers allegedly called
her. Such name calling in fact arguably constitutes the exact sort of behavior that while boorish,
is not actionable based on its failure to connect to her gender. Many of Howell’s other allegations
are essentially purely speculative. For example, she cites supervisor Ron Eiland as having
engaged in impropriety, but she does not know what he said or if anything he said was in any way
sexual. Instead, Howell simply assumes that Eiland was talking about her to others and that it was
sexual because he and others would look at her as she entered a room and laugh. It appears that
many of the workers at Argo House simply either did not like Howell or enjoyed taunting and
teasing her because she took such offense at any slight, whether real or only perceived. In sum,
the bulk of Howell’s allegations present at best only general idiocy by various Buckeye Ranch
employees that was unrelated to her gender and was not severe enough to change her working
conditions.
There are some incidents that are, however, tainted with a possible if not probable
gender-related animus. One former co-coworker, Jimmy Tyson, allegedly exposed himself to
Howell, pulled on her underwear, touched her breast, and asked her to cook him a chicken while
wearing a thong. At least some of the other remarks made to her, such as one comment about
jumping into bed, could be regarded as tied to her gender. Whether these incidents are severe
enough to constitute more than simple teasing, offhand comments, or isolated incidents that do not
amount to discriminatory changes in the terms and conditions of Howell’s employment is
debatable.
This Court need not provide a conclusive answer to that issue because, even assuming
6

arguendo that the various incidents that Howell alleges occurred did in fact take place and that
these acts present harassing conduct based on her gender, Buckeye Ranch is still entitled to
summary judgment. This is because even if Howell satisfies the first four prongs of the Title VII
prima facie case, she fails to satisfy the fifth prong: that Buckeye Ranch knew or should have
known about the harassing conduct but failed to take any corrective or preventive actions.
The Sixth Circuit has explained that “[t]he act of discrimination by the employer in [a
hostile work environment case] is not the harassment, but rather the inappropriate response to the
charges of harassment.” McCombs v. Meijer, Inc., 395 F.3d 346, 353 (6th Cir. 2005). Thus,
“when the allegations of sexual harassment involve a coworker and the employer has fashioned a
response, the employer will only be liable ‘if its response manifests indifference or
unreasonableness in light of the facts the employer knew or should have known.’ ” Id. See also
Mast v. IMCO Recycling of Ohio, Inc., 58 F. App’x 116, 119 (6th Cir. 2003) (“If the harasser was
merely the plaintiff’s co-worker, the employer will be liable only where the plaintiff can
demonstrate that the employer knew or should have known of the harassment and failed to take
appropriate remedial action.” (citing EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 518 (6th Cir.
2001)); Courtney v. Landair Transp., Inc., 227 F.3d 559, 564-65 (6th Cir. 2000)).
Notably, the misconduct to which Howell points involves her co-workers who, even if they
at times assumed a role of directing administrative duties, did not exercise significant control over
Howell’s employment. The one supervisor to which she directs this Court is Eiland, but, as noted,
her allegations concerning him are speculation based on assumptions. What Howell may or may
not have reported to McShan Smith is unhelpful to her claim given that she concedes in her
deposition testimony that she generally cannot recall what she told Smith but is certain she did not
tell Smith that she was touched on her breasts and buttocks. Howell’s failure to report alleged
7

sexual harassment to supervisors is important in light of her attempt to paint supervisors as
unresponsive to her asserted plight. Buckeye Ranch cannot be charged with failing to remedy
issues that they had no reason to know existed.
Buckeye Ranch points to its anti-harassment policy and its complaint procedure as
evidence of its attempt to prevent harassment. Howell was aware of the policy and partially
availed herself of the complaint procedures, albeit often in a sporadic and belated manner. Once
Buckeye Ranch learned of Howell’s allegations, it conducted an investigation and took
appropriate measures. After Howell reported various allegations of wrestling and horseplay to
Eiland, for example, he instructed the staff to stop this physical conduct. The conduct did stop.
Director of Human Resources Kim Bruce also addressed each allegation that Howell periodically
made during the course of Bruce’s investigation. This resulted in the removal and demotion of
various individuals from Argo House. Three comments are necessary in that regard. First,
Eiland was disciplined for failure to report horseplay, not for failure to report sexual harassment.
Second, it was only Tyson=s resignation prior to the conclusion of the investigation that prevented
the imposition of disciplinary action on him. Third, if Howell had returned to work, even she
would have been disciplined for her involvement in some incidents of horseplay. Howell has thus
failed to introduce evidence of an insufficient response. She may dislike some or all of the results
of these investigations, but this does not mean that Buckeye Ranch was indifferent and acted
unlawfully. Rather, the remedial steps undertaken are sufficient to preclude Buckeye Ranch=s
liability on the hostile work environment claim.
The instant case therefore echoes the relevant portion of Hawkins v. Anheuser-Busch, Inc.,
517 F.3d 321 (6th Cir. 2008), in which the Sixth Circuit upheld summary judgment against one of
four plaintiffs for failure to establish a prima facie case of a hostile work environment based on the
8

fact that after learning of the harassment, that plaintiff’s employer “promptly launched an
investigation, suspended [the harasser], and then fired him.” Id. at 344. The same core
reasoning proves dispositive here. There was an investigation followed by disciplinary action
where possible; interim suspensions were unnecessary to protect Howell because she was on leave
during the course of the investigation. The fact that Howell did not get what she wanted—which
was to have everyone at Argo House replaced, including all the female employees—does not mean
that Buckeye Ranch failed in its duty under Title VII.
Buckeye Ranch is therefore entitled to summary judgment on the hostile work
environment claim set forth in Count One. This leaves only one federal claim, Howell’s Count
Two claim for retaliation.
Under Title VII, it is an unlawful employment practice for an employer “to discriminate
against any [employee] with respect to the [employee’s] compensation, terms, conditions, or
privileges of employment, because of such [employee’s] race, color, religion, sex, or national
origin.” 42 U.S.C. ' 2000e-2(a)(1). It is considered an unlawful employment practice if an
employer discriminates against an employee because “the [employee] has opposed any practice
made an unlawful employment practice by [Title VII], or because [the employee] has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing
under [Title VII].” 42 U.S.C. ' 2000e-3(a). The employee has the burden of proving a prima
facie case that the employer unlawfully retaliated against the employee.
To establish a prima facie case of unlawful retaliation under Title VII, Howell must present
by a preponderance of evidence that: (1) she was engaged in a protected activity; (2) Buckeye
Ranch knew that Howell was engaged in this protected activity; (3) Buckeye Ranch subsequently
took an employment action adverse to Howell; and (4) a causal connection between the protected
9

activity and the adverse employment action exists. Abbott v. Crown Motor Co., Inc., 348 F.3d
537, 542 (6th Cir. 2003) (citing Strouss v, Michigan Dep’t of Corr., 250 F.3d 336, 342 (6th Cir.
2001); Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). The Sixth Circuit has held
after a plaintiff has proved the existence of a prima facie case, the burden shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the adverse action. Abbott, 348 F.3d at 542
(citing Nguyen, 229 F.3d at 562). If the defendant can meet this burden, then the burden shifts
back to the plaintiff to demonstrate by a preponderance of the evidence that the defendant’s
proffered reason was mere pretext. Abbott, 348 F.3d at 542 (citing Manzer v. Diamond Shamrock
Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). If the plaintiff demonstrates that the
defendant’s proffered reasons were pretextual, then the factfinder may infer unlawful retaliation.
Abbott, 348 F.3d at 542.
Buckeye Ranch correctly argues that Howell has not presented either a prima facie case or
a genuine issue of material fact in relation to her retaliation claim. Howell posits that Buckeye
Ranch forced her into a less desirable job that led to her job loss by failing to provide her with
another position. The undisputed evidence indicates only that Buckeye Ranch provided her with
a number of options, including a temporary transfer to another unit. Howell agreed to the transfer
only if she could maintain her four-day work week, despite the positions in that unit requiring a
five-day work week. Buckeye Ranch accommodated her request, which would have resulted in a
temporary, two-week assignment for Howell until she would be placed at Phoenix House, a new
all-female facility that Buckeye Ranch was opening. Howell did not incur a loss in wages or other
benefits related to the temporary reassignment. As noted, Howell worked in that temporary
position for approximately twelve hours before taking leave. When her FMLA leave expired,
Howell could either return to work or not. She elected the latter route, without requesting an
10

extension of her leave. Buckeye Ranch treated Howell’s inaction as a resignation and terminated
her employment.
These events present a scenario in which Howell failed to suffer an adverse employment
action. Although Howell asserts that Human Resources encouraged her to look into long term
disability benefits, she has not presented evidence that this correlated with an actual withdrawal of
the Phoenix House position. Rather, she subjectively characterizes the invitation to look into
disability benefits as revocation of the Phoenix House position. Moreover, Howell has also failed
to demonstrate a causal connection between losing her job and her opposition to alleged
discrimination. Accordingly, Buckeye Ranch is also entitled to summary judgment on Count
Two.
2. State Law Claims
Having disposed of Howell’s two federal claims, the Court is left with her remaining state
law claims constituting Counts Three through Six. It is not mandated that this Court entertain
these state law claims, and in fact precedent teaches that this Court presumptively should not
address the state law claims. See Jackson v. Heh, 215 F.3d 1326, 2000 WL 761807, at *8 (6th Cir.
2000) (unpublished table decision) (referencing 28 U.S.C. § 1367 and stating that “[w]here, as
here, a federal court has properly dismissed a plaintiff's federal claims, there is a ‘strong
presumption’ in favor of dismissing any remaining state claims unless the plaintiff can establish an
alternate basis for federal jurisdiction.” (citing Musson Theatrical, Inc. v. Fed. Express Corp., 89
F.3d 1244, 1255 (6th Cir. 1996))). Howell has failed to assert any justification or alternative basis
for exercising jurisdiction over Counts Three through Six should the Court grant summary
judgment to Buckeye Ranch on her federal claims.
Regardless of this omission, this Court in making the decision whether to exercise
11

supplemental jurisdiction shall consider and weigh “several factors, including the ‘values of
judicial economy, convenience, fairness, and comity.’ ” Gamel v. City of Cincinnati, 625 F.3d
949, 951–52 (2010) (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). See
also Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993). When a district
court dismisses all claims over which it had original jurisdiction, the balance of considerations is
likely to weigh in favor of declining to exercise supplemental jurisdiction. Gamel, 625 F.3d at
952; see also Moon v. Harrison Piping Supply, 465 F.3d 719, 728 (6th Cir. 2006) (“Residual
jurisdiction should be exercised only in cases where the interests of judicial economy and the
avoidance of multiplicity of litigation outweigh our concern over needlessly deciding state law
issues.”).
To assess the factors of judicial economy, fairness, and comity, this Court is guided by
several specific considerations. Among these are (1) whether the Court should avoid needless
state law decisions as a matter of comity, (2) whether the Court, in its disposition of a federal claim
resolved a related state-law issue, (3) whether similar predicate factual findings are necessary to
resolve both the state and the federal claims, (4) whether the Court has expended significant time
and resources, (5) whether dismissal or remand will result in duplicative litigation, (6) whether the
matter has been on the Court’s docket for a significant time, (7) whether the parties have
completed discovery, (8) whether Howell has abandoned all federal claims at a late stage of the
proceedings, and (9) whether a summary judgment motion has been extensively briefed and is ripe
for review. Fox v. Brown Memorial Home, Inc., 761 F. Supp. 2d 718, 723–24 (S.D. Ohio 2011)
(citing various Sixth Circuit cases identifying these factors).
Some of these factors favor this Court’s exercise of supplemental jurisdiction. For
example, this case has been pending in this Court for approximately seventeen months, the parties
12

have completed discovery, and they have also briefed summary judgment motions. There is also
some interest in avoiding duplicative litigation. Perhaps the best argument in favor of retaining
jurisdiction over the state law claims is the fact that this Court would employ substantially the
same analysis for the Count Three discrimination/hostile work environment claim under Ohio
Revised Code ' 4112 and the Count Four discrimination/retaliation claim under Ohio Revised
Code ' 4112 that it applied above, at least in regard to Buckeye Ranch. But weighing against
exercising supplemental jurisdiction is that Counts Three and Four, while involving some
overlapping parties and some overlapping analysis as Counts One and Two, also include
additional defendants that will necessitate analysis involving state law issues. Additionally,
Counts Five and Six present pure state law issues unaddressed by today’s analysis. The interest in
avoiding needless decisions on state-law issues as a matter of comity weighs heavily against
supplemental jurisdiction. Because today’s federal-claim analysis does not fully inform the
resolution of the remaining state-law claims, it cannot be said that judicial economy or
convenience weigh in favor of adjudicating the remaining claims.
Given the foregoing and in light of the presumption against exercising supplemental
jurisdiction over Howell’s state law claims, the Court declines to entertain these claims. See
United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (“If the federal claims are
dismissed before trial ... the state claims should be dismissed as well.”); Brandenburg v. Housing
Auth. of Irvine, 253 F.3d 891, 900 (6th Cir. 2001) (stating that “the usual course is for the district
court to dismiss the state-law claims without prejudice if all federal claims are disposed of on
summary judgment”). This Court emphasizes that it expresses no opinion as to the merits of any
state law claim.

13

III. Conclusion
For the foregoing reasons, the Court GRANTS IN PART Defendant’s motion for
summary judgment. (ECF No. 44.) This Court enters summary judgment in favor of Buckeye
Ranch on Counts One and Two and dismisses without prejudice Counts Three through Six. The
Clerk shall enter judgment accordingly and terminate this action on the docket records of the
United States District Court for the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

14