Daniels et al v. Pike County Commissioners et al

Filing 36

ORDER granting 25 Defendants' Motion for Summary Judgment. Signed by Magistrate Judge Norah McCann King on 8/4/16. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
PAMELA J. DANIELS, et al.,
Plaintiffs,
vs.

Case No. 2:15-cv-408
Magistrate Judge King

PIKE COUNTY COMMISSIONERS,
et al.,
Defendants.
OPINION AND ORDER
This is an employment action in which plaintiffs assert claims of
hostile work environment, sex discrimination, and retaliation. This
matter is now before the Court, with the consent of the parties
pursuant to 28 U.S.C. § 636(c), on Defendants’ [sic]1 Motion for
Summary Judgment, ECF No. 25 (“Defendant’s Motion”); Plaintiffs’
Response to Defendants’ [sic] Motion for Summary Judgment, ECF No. 31
(“Plaintiffs’ Response”); and Defendants’ [sic] Reply to Plaintiffs’
Response to Defendants’ [sic] Motion for Summary Judgment, ECF No. 35
(“Defendant’s Reply”).

For the reasons that follow, Defendant’s

Motion is GRANTED.
I.

Background
Defendant Robert Junk has served as Pike County Prosecutor since

1996.

Deposition of Charles R. Junk, Jr., ECF No. 34-1, p. 7 (“Junk

Deposition”).2

1

Defendant Junk is the only defendant remaining in the action. He has been
sued in his official and individual capacities.
2
Defendant Junk apparently uses his middle name, Robert, as a first name
rather than his given first name, Charles. Id.; Answer, ECF No. 17.

1

Plaintiff Daniels began working as a secretary in the
Prosecutor’s office in November 1997, taking “care of the county court
cases.”

Affidavit of Plaintiff Pamela J. Daniels, ¶ 3, attached as

Exhibit A to Plaintiffs’ Response (“Daniels Affidavit”); Deposition of
Pamela J. Daniels, pp. 10-11 (“Daniels Deposition”).

Later, she

became victim/witness coordinator, sending notices to each witness and
victim in every felony case, assisting victims with filings for
compensation, communicating with victims about their cases, answering
telephones, and performing general office duties.
¶ 3; Daniels Deposition, pp. 11-12.

Daniels Affidavit,

In both capacities, plaintiff

Daniels worked under the direct supervision of defendant Junk.
Daniels Affidavit, ¶ 4.
Plaintiff Barron was hired as a secretary in the Prosecutor’s
office in January 2009 and worked under the supervision of defendant
Junk.

Affidavit of Rachel E. Barron, ¶¶ 3-4, attached as Exhibit B to

Plaintiffs’ Response (“Barron Affidavit”).

Plaintiff Barron’s duties

included preparing files and praecipes for county court and juvenile
court proceedings, sending notices to victims, communicating with
victims, depositing restitution checks, preparing victims’ restitution
checks, assisting with grand jury matters, and assisting plaintiff
Daniels with her duties. Deposition of Rachel E. Barron, ECF No. 26-1,
pp. 10-11 (“Barron Deposition”).
kept her in the office.

Generally, plaintiff Barron’s duties

Id. at 11.3

3

At various times relevant to this action, the Prosecutor’s office also
employed the following individuals: Angela Farmer (office manager), Dave
Dickerson (diversion officer), Aaron Gullett (diversion officer who assumed

2

In October 2013, the atmosphere in the Prosecutor’s office
changed and plaintiffs complain that defendant Junk began treating
female employees differently than male employees. Daniels Affidavit, ¶
5; Barron Affidavit, ¶ 5.

Defendant Junk announced that employees

would no longer be permitted to work four ten-hour days, but instead
would be required to work between the hours of 8:30 a.m. and 4:30
p.m.; employees would also be required to punch a time clock. Daniels
Affidavit, ¶ 7; Exhibit A1 (copy of office policy), attached thereto;
Barron Affidavit, ¶ 7; Daniels Deposition, pp. 54-56, 68, 73; Barron
Deposition, pp. 19-21. However, plaintiffs allege, defendant Junk did
not enforce this policy against the male employees.
Defendant Junk also established an office dress code, effective
November 2013, that prohibited jeans except on Fridays.

Daniels

Affidavit, ¶¶ 6, 11; Daniels Deposition, pp. 22-24; Barron Deposition,
p. 22; Junk Deposition, pp. 67-68.

Prior to that time, employees wore

a variety of clothing, including jeans and flip-flops.

Barron

Deposition, pp. 22-23; Junk Deposition, p. 67; Deposition of Angela
Farmer, ECF No. 29, p. 25 (“Farmer Deposition”).

However, defendant

Junk did not enforce the no-jeans code as to some of the male
employees in the Prosecutor’s office, including diversion officer

some of plaintiff Barron’s duties after her departure), Rob Smith
(investigator), Charlie Reader (diversion officer and, later, investigator),
Jason Savage (diversion officer), and Hank Steiger (diversion officer). Id.
at 9-10, 12, 71; Barron Deposition, pp. 14-15; Affidavit of Claudie Aaron
Gullett, ¶ 4, attached as Exhibit C to Plaintiffs’ Response (“Gullett
Affidavit”). Andrew Roberts also worked in the Prosecutor’s office as a
legal intern in the summer and winter of 2013. Junk Deposition, p. 12;
Affidavit of Andrew Roberts, ¶¶ 2-4, attached as Exhibit D to Plaintiffs’
Response.

3

Jason Savage and diversion officer (and, later, investigator) Charlie
Reader.

Barron Deposition, p. 24; Junk Deposition, p. 67.

When

plaintiff Daniels requested additional time to buy clothing in order
to comply with the new dress code, defendant Junk granted that
request.

Daniels Deposition, p. 24; Roberts Affidavit, ¶ 12; Farmer

Deposition, pp. 25-26.

A few days later, however, defendant Junk

asked plaintiff Daniels, “And didn’t I say we were going to change the
dress code around here?
Deposition, pp. 25-26.

Aren’t you wearing jeans?”

Daniels

When plaintiff Daniels reminded him of his

grant of additional time, defendant Junk responded, “Well, if you say
so” and “[s]tomped off.”

Id.

Plaintiffs also complain that defendant Junk became generally
hostile toward them and engaged in harassing activities. On one
occasion, defendant Junk entered the front office (where the female
employees worked) and loudly popped some packing materials, which
sounded like a gunshot and startled plaintiffs.
p. 60.

Daniels Deposition,

On another occasion, defendant Junk said something to the

effect of, “Well, there’s a song about everything, and one of those
songs is ‘Get the Fuck Out’ by Cee Lo Green,” which plaintiff Daniels
understood to be directed at the female employees.

Id. at 63-64.

On

another occasion, defendant Junk went to plaintiff Daniels’ desk and
laughed at her, telling her that she “looked like you just lost your
best friend;” it seemed to her that he enjoyed upsetting her.
72.

Id. at

On one or two other occasions, defendant Junk said to members of

the public who were in the office, “[T]hese girls have work they need

4

to be doing.
to do.”

I’m just making sure they’re doing what they’re supposed

Daniels Deposition, p. 63; Barron Deposition, pp. 33-34; Junk

Deposition, pp. 50-51.

Defendant Junk routinely said in front of

female employees, “Everybody working. Nobody whining. That’s the way
we like it.”

Daniels Deposition, pp. 61-62; Barron Deposition, p. 38.

According to a male employee, defendant Junk “stated on a few
occasions that ‘he didn’t need them [plaintiffs] as friends because he
had plenty,’”

Affidavit of Andrew Roberts, ¶ 13, attached as Exhibit

D to Plaintiffs’ Response (“Roberts Affidavit”), and, “instead of
addressing them directly, he would speak to others about them as if
they were not present.”

Id. at ¶ 14.

in a similar way toward male employees.

Defendant Junk did not behave
Id. at ¶ 15.

Defendant Junk

would also talk to plaintiffs “about how we’re at-will employees, and
that we can be terminated at any point in time, which we understood.”
Barron Deposition, p. 41.
Plaintiffs also complain that defendant Junk, knowing that he did
not enforce the time clock policy against the male employees, would
ask in front of the female employees if everybody had punched the time
clock.

Daniels Deposition, p. 62; Barron Deposition, p. 39; Daniels

Affidavit, ¶ 8; Barron Affidavit, ¶ 8; Roberts Affidavit, ¶ 6.
Plaintiff Barron viewed this behavior as attempting to get a rise out
of the women: “[Defendant Junk] gets off on getting a rise out of you.
He gets off on seeing you upset.”

Barron Deposition, p. 39.

See also

Roberts Affidavit, ¶ 7 (“I observed that on one morning, Mr. Junk

5

antagonized the female employees about this new policy by asking
snidely, ‘Did everyone get clocked in?’”).
Early on November 15, 2013, defendant Junk accessed each of the
female employees’ work computers, and pulled up their internet search
histories and left those histories on their screens when the employees
arrived for work that day.

Daniels Affidavit, ¶ 9; Barron Affidavit,

¶ 9; Junk Deposition, pp. 37-39.

Defendant Junk did not display such

histories on the male employees’ screens.
20.

Id.; Daniels Deposition, p.

When plaintiffs asked about the displayed histories, defendant

Junk became angry and screamed, “Don’t think you can’t be replaced.”
Daniels Deposition, pp. 18, 38-39; Daniels Affidavit, ¶ 10; Barron
Affidavit, ¶ 10.
office crying.

Plaintiff Barron, upset over the incident, left the
Daniels Deposition, p. 38.

On December 3, 2013, plaintiff Barron submitted her resignation.
Barron Deposition, pp. 11-12, 15; Farmer Deposition, pp. 20-21, 50.4
Defendant Junk hired as her replacement a male diversion officer,
Aaron Gullett.

Barron Affidavit, ¶ 14; Daniels Affidavit, ¶ 20;

Farmer Deposition, pp. 81-82.
Sometime after plaintiff Barron’s resignation, defendant Junk
brought a gun, an AR-15, into the office (“the gun incident”).
Daniels Deposition, p. 30.

According to plaintiff Daniels, defendant

Junk stood in a doorway, approximately 20-25 feet from her, held the
gun up in the air and said, “Hey Pam.”

Id.

When she looked up from

her computer, defendant Junk said, “Don’t worry.

4

I’m not that mad,”

The record also refers to a resignation date of December 3, 2014, see, e.g.,
Barron Affidavit, ¶ 13, but that date appears to be erroneous.

6

and laughed.

Daniels Deposition, pp. 30-31, 34; Daniels Affidavit, ¶

15; Farmer Deposition, p. 45.5
On January 15, 2014, plaintiff Daniels, as part of her duties,
went to the Pike County courthouse for a hearing.
¶ 16; Daniels Deposition, p. 36.

Daniels Affidavit,

While in court, she complained to

Dominique Hanna and Tara Tackett, Pike County employees who worked for
different agencies, about the gun incident and “everything” with
defendant Junk.
¶ 17.

Daniels Deposition, pp. 36-37, 51; Daniels Affidavit,

Defendant Junk, having learned of her complaints, terminated

defendant Daniels’ employment the next day.
Junk Deposition, pp. 62-64.

Daniels Affidavit, ¶ 19;

Dave Dickerson replaced her.

Deposition, p. 21; Farmer Deposition, p. 81.

Junk

Ms. Farmer also took

over some of plaintiff Daniels’s duties, including entering cases in
the electronic system, sending out notices, and setting schedules.
Farmer Deposition, pp. 81-82.
On January 30, 2015, plaintiffs filed this action. The Amended
Complaint, ECF No. 11, asserts claims of hostile work environment, sex
discrimination, and retaliation under Title VII, 42 U.S.C. § 2000e-5,
and O.R.C. § 4112.02.

Plaintiffs also assert claims of intentional

infliction of emotional distress.
II.

See id.

Standard
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part:
5

Defendant Junk describes this incident differently than does plaintiff
Daniels, see Junk Deposition, pp. 41-44, 76-77, but the Court accepts her
version of the event for purposes of these proceedings on summary judgment.

7

The court shall grant summary judgment 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).

In making this determination, the evidence

must be viewed in the light most favorable to the nonmoving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

Summary judgment

will not lie if the dispute about a material fact is genuine, “that
is, if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”
477 U.S. 242, 243 (1986).

Anderson v. Liberty Lobby, Inc.,

However, summary judgment is appropriate if

the opposing party fails to make a showing sufficient to establish the
existence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial.
Catrett, 477 U.S. 317, 322 (1986).

Celotex Corp. v.

The mere existence of a scintilla

of evidence in support of the opposing party’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the opposing party.

Anderson, 477 U.S. at 251.

The party moving for summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the record which demonstrate
the absence of a genuine issue of material fact.
323.

Catrett, 477 U.S. at

Once the moving party has met its initial burden, the burden

then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.”

Anderson, 477 U.S.

at 250 (quoting former Fed. R. Civ. P. 56(e)); Talley v. Bravo Pitino
Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995)(“nonmoving party

8

must present evidence that creates a genuine issue of material fact
making it necessary to resolve the difference at trial”).

“Once the

burden of production has so shifted, the party opposing summary
judgment cannot rest on its pleadings or merely reassert the previous
allegations.

It is not sufficient to ‘simply show that there is some

metaphysical doubt as to the material facts.’”

Glover v. Speedway

Super Am. LLC, 284 F. Supp.2d 858, 862 (S.D. Ohio 2003)(citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).

Instead, the non-moving party must support the assertion

that a fact is genuinely disputed.

Fed. R. Civ. P. 56(c)(1).

In ruling on a motion for summary judgment “[a] district court is
not ... obligated to wade through and search the entire record for
some specific facts that might support the nonmoving party’s claim.”
Glover, 284 F. Supp.2d at 862 (citing InteRoyal Corp. v. Sponseller,
889 F.2d 108, 111 (6th Cir. 1989)).

Instead, a “court is entitled to

rely, in determining whether a genuine issue of material fact exists
on a particular issue, only upon those portions of the verified
pleadings, depositions, answers to interrogatories and admissions on
file, together with any affidavits submitted, specifically called to
its attention by the parties.”

Id.

See also Fed. R. Civ. P.

56(c)(3).
III. Discussion
A.

Evidence Regarding Angela Farmer

Defendant asks, first, that the Court disregard evidence of
defendant Junk’s alleged discriminatory treatment of Ms. Farmer, who

9

was the office manager for the Prosecutor’s office but who is not a
party to this action, characterizing such evidence as irrelevant.
Defendants’ Reply, p. 2.

Defendant’s request in this regard is not

well-taken.
This Court may consider, in connection with plaintiffs’ claims of
hostile work environment, defendant Junk’s alleged behavior toward
other women in the Prosecutor’s office so long as plaintiffs were
aware of such behavior.

See, e.g., Berryman v. SuperValu Holdings,

Inc., 669 F.3d 714, 718 (6th Cir. 2012) (“In short, a plaintiff does
not need to be the target of, or a witness to harassment in order for
us to consider that harassment in the totality of the circumstances;
but [s]he does need to know about it.”); Jackson v. Quanex Corp., 191
F.3d 647, 661 (6th Cir. 1999) (“An employer may create a hostile
environment for an employee even where it directs its discriminatory
acts or practices at the protected group of which the plaintiff is a
member, and not just at the plaintiff herself.”) (citing Meritor
Savings Bank v. Vinson, 477 U.S. 57 (1986)).
B.

Sexual Harassment – Hostile Work Environment (Counts I and
IV)

Plaintiffs allege that defendant Junk discriminated against them
on the basis of their gender in violation of Title VII by subjecting
them to a hostile work environment.

Amended Complaint, ¶¶ 31-37.

Title VII makes it unlawful
for an employer . . . to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s . . . sex . . . or to limit, segregate, or
classify his employees . . . in any way which would deprive

10

or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as
an employee, because of such individual’s . . . sex. . . .
42 U.S.C. § 2000e-2(a)(1).

The standards applicable to claims of

sexual harassment under Title VII and O.R.C. Chap. 4112 are the same.
See, e.g., Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263,
270 (6th Cir. 2009); Laderach v. U–Haul of Nw. Ohio, 207 F.3d 825, 828
(6th Cir. 2000) (stating, inter alia, that sex discrimination claims
need not be analyzed separately under state and federal law) (citing
Little Forest Med. Ctr. of Akron v. Ohio Civil Rights Comm’n, 61 Ohio
St.3d 607, 609–10 (1991)).

Accordingly, this Court will analyze these

claims together.
A hostile work environment exists where “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.”

Smith

v. Rock-Tenn Servs., Inc., 813 F.3d 298, 309 (6th Cir. 2016) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (internal
citations omitted).

In order to establish a claim of hostile work

environment, a plaintiff must show that “(1) she was a member of a
protected class; (2) she was subjected to unwelcome discriminatory
harassment; (3) the harassment complained of was based on sex; (4) the
charged sexual harassment created a hostile work environment; and (5)
[the defendant] is liable.”

Wierengo v. Akal Sec., Inc., No. 13–1890,

580 F. App’x 364, at *371 (6th Cir. Sept. 10, 2014) (quoting Randolph

11

v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006))
(internal quotation marks omitted).
Assuming arguendo that plaintiffs can establish the first two
elements, the parties disagree whether plaintiffs have established the
third and fourth elements of their claims of hostile work environment.
1.

Whether the harassment was based on sex

Plaintiffs complain of non-sexual harassment based on their
gender.
pp. 2-18.

See, e.g., Amended Complaint, ¶¶ 12-29; Plaintiffs’ Response,
“[N]on-sexual conduct may be illegally sex-based where it

evinces ‘anti-female animus, and therefore could be found to have
contributed significantly to the hostile environment.’”

Williams v.

Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999) (quoting Lipsett
v. University of Puerto Rico, 864 F.2d 881, 905 (1st Cir. 1988)).
“Thus, harassing behavior that is not sexually explicit but is
directed at women and motivated by discriminatory animus against women
satisfies the ‘based on sex’ requirement.”

Id.

Plaintiffs have not shown that certain of the instances of
harassment about which they complain are based on their gender.

For

example, plaintiffs allege that defendant Junk permitted at least some
of the male employees to wear jeans, despite the new dress code. In
actuality, plaintiff Daniels testified that she “honestly didn’t pay
attention to what the boys were wearing at that point” and could only
“guess that they [the male employees] were allowed to wear jeans.”
Daniels Deposition, pp. 27-28.

It is true that plaintiff Barron

testified that the diversion officers, who are male, were allowed to

12

wear jeans.

Barron Deposition, p. 24.

However, defendant Junk

explained that he permitted Jason Savage and Earl Sweptson,6 diversion
officers, to wear jeans because they engaged in physical exertion
outside the office as part of their job duties.
32, 67.

Junk Deposition, pp.

Plaintiff Barron also complains that defendant Junk permitted

Charlie Reader, initially a diversion officer and, at some point, an
investigator, to wear jeans.

Barron Deposition, pp. 14, 24.

However,

unlike plaintiff Barron, who was a secretary, Mr. Reader also
apparently performed some of his duties outside the office. Id. at 20.
See also Junk Deposition, p. 81 (testifying that Mr. Reader “was
running the diversion program” for a period of time.) Moreover,
defendant Junk permitted plaintiff Barron, who was pregnant at the
time the dress code went into effect, to delay her compliance with the
dress code. Barron Deposition, pp. 22-23.

Considering the totality of

this evidence, the Court cannot conclude that defendant Junk’s
enforcement of the dress code was “motivated by discriminatory animus
against women” such that plaintiffs have satisfied the “based on sex”
component of their claims in this regard.

See Williams, 187 F.3d at

565.
Plaintiffs also complain that defendant Junk did not enforce, as
against male employees, the new policy that required that employees
work between the hours of 8:30 a.m. and 4:30 p.m. and punch a time
clock.

See, e.g., Daniels Affidavit, ¶ 8; Barron Affidavit, ¶ 8;

6

Mr. Sweptson apparently did not work as a diversion officer during the period
of plaintiffs’ employment; neither plaintiff refers to him in deposition
testimony.

13

Roberts Affidavit, ¶ 6.

The Court will disregard defendant Junk’s

insistence that the male diversion officers in fact punched the time
clock on a consistent basis and that the male diversion officers
(other than Jason Savage) worked from 8:30 a.m. to 4:30 p.m. Junk
Deposition, pp. 27-29, 32-33. It is significant, however, that the
plaintiffs (secretary and victim/witness coordinator) and Ms. Farmer
(office manager) held different positions than the male employees
(investigator/diversion officers/dispatcher/supervisor).

Charlie

Reader was not required to clock in or to work from 8:30 to 4:30
because he was an investigator who was on salary and who could “come[]
and go as he pretty well pleased.”

Id. at 27-29, 31.

Jason Savage, a

diversion officer, was permitted to work from 7:00 a.m. to 3:00 p.m.
because certain county sites opened at 8:00 a.m. and defendant Junk
preferred that the diversion officer arrive early to prepare for
offenders who arrived before 8:30 a.m.

Id. at 32.

Based on this

record, plaintiffs have not persuaded this Court that defendant Junk’s
failure or refusal to enforce the time clock requirement and the 8:30
a.m. to 4:30 p.m. work schedule as against Messrs. Reader and Savage
was “motivated by discriminatory animus against women[.]”

See

Williams, 187 F.3d at 565.
Plaintiff Daniels also alleges that, although her employment was
terminated because she reported defendant Junk’s misconduct, a male
employee was not fired despite his own actual misconduct.
He’s never fired a male employee. Even after his diversion
office [sic] slept with one of the girls that was on the
diversion program, and that certainly didn’t look good on
the program, he still didn’t fire Jason after – Rob was –

14

he was fully aware of that. He didn’t fire him, and he was
a male. I get fired for telling the truth and because I’m a
female.
Daniels Deposition, p. 71.7

Ms. Farmer testified that there was

“watercooler conversation about Mr. Savage having an inappropriate
relationship with an offender,” but she did not recall discussing that
matter with defendant Junk. She assumed that “everybody knew” about
the relationship because Mr. Savage and the offender (who are now
married) “were out in public together.”

Farmer Deposition, pp. 63-64.

Mr. Savage voluntarily left his employment with the Prosecutor’s
office.

Id. at 63.

Defendant Junk testified that, although he had heard rumors of
Mr. Savage’s relationship with an offender, he had no actual evidence
of an inappropriate relationship and that, lacking such evidence, he
would not fire Mr. Savage. Junk Deposition, p. 19-21.

Defendant Junk

asked Mr. Savage about the rumor, but the employee “indicated that
nothing had happened between them when he was [a diversion officer].”
Id. at 19-20.

A tracking device was placed on the county pick-up

truck issued to Mr. Savage, but defendant Junk “couldn’t catch them
together.”
undisputed.

Id. at 20.

Defendant Junk’s testimony in this regard is

Accordingly, the Court cannot say that defendant Junk’s

failure to fire a male employee based on rumors of a romantic
relationship with an ex-offender evinces anti-female animus or was
motivated by a discriminatory animus against women.

See Williams, 187

F.3d at 565.

7

The termination of plaintiff Daniels’s employment is addressed infra.

15

Plaintiff Daniels testified about the gun incident, which she
characterized as intimidating in light of the fact that she and
defendant Junk did not have a good relationship at the time.
Deposition, p. 32-36.

Daniels

However, she also testified that guns were kept

in the Prosecutor’s office, including in defendant Junk’s office, on a
regular basis; male employees also carried guns as part of their job.
Daniels Deposition, p. 29. Moreover, plaintiff Daniels acknowledged
that defendant Junk had joked and laughed in the past, although never
with a gun. Id. at 31-32.8
Nothing in this record establishes that defendant Junk targeted
plaintiff Daniels in this incident because of her sex.

Instead, the

record simply establishes that, as plaintiff Daniels concedes,

she

and defendant Junk did not enjoy a good working relationship at the
time.

Although defendant Junk and plaintiff Daniels may have disliked

each other, harassment based on personal dislike generally does not
equate with unlawful discriminatory harassment.

See, e.g., Barnett v.

Dep’t of Veterans Affairs, 153 F.3d 338, 343 (6th Cir. 1998)(noting
that “personal conflict does not equate with discriminatory
animus”)(internal quotation marks omitted).

Similarly, “the conduct

of jerks, bullies, and persecutors is simply not actionable under
Title VII unless they are acting because of the victim’s gender.”
Wasek v. Arrow Energy Servs., 682 F.3d 463, 467 (6th Cir. 2012).
8

See

Defendant Junk also testified about the gun incident: He and another
employee were inspecting a firearm in a closed office when plaintiff Daniels
entered the room. Junk Deposition, p. 40-41. In an apparent reference to the
fact that he and plaintiff Daniels were not getting along at the time, he
said, “‘Hey, Pam, I’m not mad enough to use this on you.’” Id. at 41-42. He
acknowledged that he “laughed about it . . . .” Id. at 42.

16

also Trepka v. Bd. of Educ., No. 00–4063, 28 F. App’x 455, at *461
(6th Cir. Jan. 24, 2002) (“Our harassment jurisprudence requires that
we distinguish between harassment and discriminatory harassment.”).
Plaintiff Daniels has not shown that the gun incident was motivated by
her gender rather than by – at best – a poorly executed attempt at
humor and – at worst – an inter-personal conflict.

Id.; Curry v.

Nestle USA, Inc., No. 99-3877, 225 F.3d 658, at *4 (Table) (6th Cir.
July 27, 2000) (“Taking the evidence in the light most favorable to
plaintiff, we agree with the district court that plaintiff did not
offer evidence sufficient to show that the harassment by Zab was based
upon her sex, rather than personal animosity.”).
This reasoning also applies to other isolated incidents about
which plaintiffs complain.

As noted supra, defendant Junk once

referred to a song with an offensive title. Daniels Deposition, pp.
63-64.

On another occasion, he was “furious” and “[s]tomped off” when

plaintiff Daniels asked him for assistance in locating a case list.
Id. at 43-44.

However, plaintiffs have pointed to nothing that

establishes that this conduct was directed at plaintiff Daniels
because of her sex.

Although his behavior may have been rude, the

evidence suggests that his behavior was a function of either a
personal conflict or of an unpleasant personality. These incidents do
not, however, evidence unlawful discriminatory harassment.

See supra.

Plaintiffs offer some evidence that could support gender-based
harassment: Plaintiffs testified that defendant Junk accessed only the
female employees’ personal internet search histories even though male

17

employees also used their work computers for personal use. Daniels
Deposition, pp. 18-21; Barron Deposition, pp. 26-29.

When plaintiffs

asked about the matter, defendant Junk allegedly became angry and
screamed, “Don’t think you can’t be replaced.”

Daniels Deposition,

pp. 18, 38-39; Daniels Affidavit, ¶ 10; Barron Affidavit, ¶ 10.9
Plaintiffs and Ms. Farmer also complain that defendant Junk did
not permit plaintiff Barron to cash in her vacation time, but instead
required her to calculate her vacation time and then use that time
prior to her last day of employment.

Barron Affidavit, ¶ 12; Barron

Deposition, pp. 15-18; Farmer Deposition, pp. 59-60.10

However,

defendant Junk did permit men to cash in their accrued vacation time.
Junk Deposition, pp. 10-12; Farmer Deposition, p. 60.

Construing this

evidence in a light most favorable to plaintiffs, the Court finds that
this treatment appears to be based on plaintiffs’ gender.
Moreover, some of defendant Junk’s comments were explicitly
gender-based: “That’s why I don’t like to hire women.” “That’s why it
is a pain to hire women.” “Working with men is so much easier than
working with women.” Gullett Affidavit, ¶ 20. Defendant Junk is also
alleged to have stated that he “didn’t need them [plaintiffs] as
friends because he had plenty.” Roberts Affidavit, ¶ 13.

9

There is

Defendant Junk denies that he checked only the female employees’ computers.
Junk Deposition, pp. 35-39. He specifically testified that he checked Mr.
Reader’s computer “a bunch” and pulled up Mr. Reader’s computer history; that
Mr. Reader did not access eBay after a meeting regarding internet use; that
he could monitor Mr. Reader’s computer screen without standing over Mr.
Reader; that he did not access Jason Savage’s computer on the particular
morning in question because Mr. Savage was normally out on the road; and that
he probably checked every employee’s browser history at some point.
10
Defendant Junk does not remember plaintiff Barron asking to cash in her
vacation time when she submitted her resignation. Junk Deposition, p. 13.

18

also evidence that defendant Junk laughed and chatted with the male
employees, Farmer Deposition, p. 22, but that the work area around the
female employees was tense; there is also evidence that defendant Junk
would “smirk” around the female employees, and once commented to
plaintiff Daniels that “you look like you just lost your best friend.”
Daniels Deposition, p. 72; Barron Deposition, p. 43.
Mr. Gullett avers that defendant Junk and Mr. Reader asked him
“to do things specifically to annoy or upset Angie Farmer,” who was
the only female working in the Prosecutor’s office at the time.
Gullett Affidavit, ¶ 22.

This included asking Mr. Gullett “to be mean

to Angie or do things to annoy her on purpose such as not tell her
where I was going, or when/if I left the office for work duties.”

Id.

On another occasion, plaintiffs allege, defendant Junk popped
packing materials in the area where the women worked, apparently in
order to startle them.

Daniels Deposition, pp. 59-61.

On one or two

occasions, defendant Junk said to members of the public who were in
the front office, “[T]hese girls have work they need to be doing.
just making sure they’re doing what they’re supposed to do.”

I’m

Daniels

Deposition, p. 63; Barron Deposition, pp. 33-34; Junk Deposition, pp.
50-51.

Defendant Junk also observed, in front of the female

employees, “Everybody working.
like it.”

Nobody whining.

That’s the way we

Daniels Deposition, pp. 61-62; Barron Deposition, p. 38.

Defendant Junk also asked, in front of the female employees, if
“everybody” had punched in on the time clock.

Daniels Deposition, p.

62; Barron Deposition, p. 39; Daniels Affidavit, ¶ 8; Barron

19

Affidavit, ¶ 8; Roberts Affidavit, ¶ 6.

Moreover, defendant Junk

often spoke to others about plaintiffs as if they were not present
instead of addressing plaintiffs directly.

Roberts Affidavit, ¶ 14.

On another occasion, after he had granted plaintiff Daniels additional
time to buy clothing that complied with the new dress code, see
Daniels Deposition, p. 24; Roberts Affidavit, ¶ 12; Farmer Deposition,
pp. 25-26, defendant Junk said to her, “And didn’t I say we were going
to change the dress code around here?
Daniels Deposition, pp. 25-26.

Aren’t you wearing jeans?”

When plaintiff Daniels reminded him

of the grace period that he had granted her, defendant Junk responded,
“Well, if you say so” and “[s]tomped off.”

Id.

The record does not include evidence of similar behavior on the
part of defendant Junk towards the male employees.

Under these

circumstances, plaintiffs have presented evidence of an unlawful,
anti-female animus. See Williams, 187 F.3d at 565.
2.

Totality of the circumstances: Whether the harassment
created a hostile work environment

The parties disagree whether defendant Junk’s conduct, which the
Court has found can be perceived as gender-based harassment, created a
hostile work environment.

“‘[T]he test for a hostile work environment

has both objective and subjective components.’”

Woods v.

FacilitySource, LLC, No. 15-3138, 2016 WL 403057, at *11 (6th Cir.
Feb. 3, 2016) (quoting Williams, 187 F.3d at 566).
“Conduct that is not severe or pervasive enough to create
an objectively hostile or abusive work environment — an
environment that a reasonable person would find hostile or
abusive — is beyond Title VII’s purview. Likewise, if the
victim does not subjectively perceive the environment to be

20

abusive, the conduct has not actually altered the
conditions of the victim’s employment, and there is no
Title VII violation.”
Id. (quoting Harris, 510 U.S. at 21-22) (emphasis added by Sixth
Circuit).

See also Bowman v. Shawnee State Univ., 220 F.3d 456, 463

(6th Cir. 2000) (“[T]he conduct must be severe or pervasive enough to
create an environment that a reasonable person would find hostile or
abusive and the victim must regard that environment as abusive.”).
In determining whether, objectively, the alleged conduct is
sufficiently severe or pervasive to constitute a hostile work
environment, a court “must consider the totality of the
circumstances[;]” the court must not focus on individual incidents of
alleged harassment.

Id.

“‘[T]he 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.’”
187 F.3d at 562 (emphasis in original).

Id. (quoting Williams,

In determining whether the

alleged harassment is severe or pervasive enough to create a hostile
work environment, a court must consider various factors, including
“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 Harris, 510 U.S. at 23) (internal

quotation marks omitted).

However, “not all workplace conduct that

may be described as ‘harassment’ affects a ‘term, condition, or
privilege’ of employment within the meaning of Title VII.”

21

Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

See also Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (“The
prohibition of harassment on the basis of sex . . . forbids only
behavior so objectively offensive as to alter the ‘conditions’ of the
victim’s employment.”).

Accordingly, “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).

In short, “[t]hese standards for

judging hostility are sufficiently demanding to ensure that Title VII
does not become a ‘general civility code’ and that, applied properly,
will filter out complaints attacking ‘the ordinary tribulations of the
workplace[.]’”

Id.

See also Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006) (“An employee’s decision to report
discriminatory behavior cannot immunize that employee from those petty
slights or minor annoyances that often take place at work and that all
employees experience.”).
In this case, plaintiffs aver that defendant Junk began treating
female employees less favorably than male employees in October 2013
and that this behavior continued beyond the time that plaintiff Barron
quit her job in December 2013 and until defendant Junk terminated
plaintiff Daniels’s employment in January 2014.
5-19; Barron Affidavit, ¶¶ 5-13.11

Daniels Affidavit, ¶¶

The harassment during that period

11

The Court disregards, at this point in the analysis, Mr. Gullett’s sworn
statement regarding defendant Junk’s treatment of Ms. Farmer, because that
statement, see Gullett Affidavit, ¶ 19, relates to a period of time after
plaintiffs’ employment had ended. See, e.g., Berryman, 669 F.3d at 718;

22

of time, as alleged by plaintiffs, consisted of the following behavior
on the part of defendant Junk:

(1) he permitted male diversion

officers (excluding Jason Savage) to work hours other than 8:30 a.m.
to 4:30 p.m.; (2) he did not strictly require male diversion officers
(excluding Jason Savage) to punch a time clock; (3) he accessed female
employees’ computers to check on their personal internet search
histories and, on one occasion, he accessed and left female employees’
search histories on their computer screens; (4) he prohibited
plaintiff Barron from cashing in her vacation time, but permitted male
employees to do so; (5) he laughed and chatted with male employees,
but “smirked” at female employees; (6) on one occasion, he commented
to plaintiff Daniels that she looked like she had lost her best
friend; (7) he loudly popped packing materials in the area where the
female employees worked; (8) he told members of the public on one or
two occasions that “these girls have work they need to be doing.

I’m

just making sure they’re doing what they’re supposed to do.”; (9) he
stated in front of female employees, “Everybody working.
whining.

Nobody’s

That’s the way we like it.”; (10) he asked, in front of the

female employees, whether “everyone” had punched the time clock; (11)
he spoke to others about plaintiffs as if plaintiffs were not present;
and (12) he asked plaintiff Daniels on one occasion why she was
wearing jeans and said “if you say so” and stomped off when plaintiff

Wanchik v. Great Lakes Health Plan, Inc., No. 99-2333, 6 F. App’x 252, at
*262 (6th Cir. Mar. 2, 2001) (“[P]laintiff must have been aware of [the
alleged] incidents during her employment, even if indirectly, for the
accounts of others to be relevant.”); Jackson v. Quanex Corp., 191 F.3d 647,
661 (6th Cir. 1999).

23

Daniels reminded him that he had given her additional time to comply
with the dress code.

See supra.

Considering the totality of these circumstances and construing
this evidence in a light most favorable to plaintiffs, the Court
concludes that this alleged conduct does not rise to the level of
harassing or discriminatory behavior constituting a hostile work
environment. In making this finding, the Court has considered a number
of factors.

First, several of the incidents about which plaintiffs

complain occurred on only one or two occasions.

See, e.g., Faragher,

524 U.S. at 788 (stating, inter alia, that isolated incidents, unless
extremely serious, do not constitute a hostile work environment).
In addition, these incidents as well as the other, more
frequently occurring, conduct, i.e., accessing female employees’
computers to check personal internet search histories, requiring
female employees to clock in and to work between the hours of 8:30
a.m. to 4:30 p.m., “smirking” at female employees, commenting that no
one is “whining” and “that’s the way we like it,” asking if “everyone”
had clocked in, and talking about plaintiffs as if they were not
there, were not severe.

Plaintiffs have not alleged or demonstrated

that any incident involved physical contact or even a threat of
physical contact; even the gun incident about which plaintiff Daniels
complains occurred in an office in which guns were regularly kept and
did not involve a gun pointed at any person. See also Daniels
Deposition, pp. 30-36, 70; Barron Deposition, pp. 45-46, 66-67.
Instead, most of the incidents about which plaintiffs complain are

24

more properly characterized as simple teasing, offensive utterances,
petty slights, or ordinary tribulations of the workplace.

See, e.g.,

Faragher, 524 U.S. at 788; Burlington N. & Santa Fe Ry. Co., 548 U.S.
at 68.

Cf. Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 481-

82 (6th Cir. 2012) (rejecting claim for constructive discharge where
supervisor “permit[ed] male employees to work through lunch and leave
early on a regular basis, but [did] not permit[] [the female
plaintiff] to do the same” and finding that “[a] reasonable person
would not find that the new work hours [that required the same number
of daytime hours and included a lunch hour] . . . were intolerable”).
Notably, plaintiffs concede that defendant Junk had the right to make
changes to office policies and plaintiffs’ testimony reveals that
defendant Junk’s conduct apparently did not impair their ability to
perform their jobs.

See, e.g., Daniels Deposition, pp. 16 (testifying

that, when defendant Junk looked up the computer histories, “[w]e’re
like, ‘Well, is there something that hasn’t been done?’

He couldn’t

answer.”), 16-17 (admitting that office computers were there for
office work), 18 (addressing the computer histories and stating that
“[t]o my knowledge, neither one of us [plaintiffs] had missed
anything.”), 54 (admitting that it was the prosecutor’s prerogative to
set the working hours of the Prosecutor’s office); Barron Deposition,
pp. 26 (agreeing that office computers should be used for office
work), 41 (“To my knowledge, we were good employees.

We done our job,

we made sure our stuff was done, and we done whatever that man
[defendant Junk] asked us to do.”).

25

Plaintiffs may have been subjectively upset by defendant Junk’s
conduct; however, a subjective perception of non-severe events cannot
salvage a deficient hostile work environment claim.

See, e.g., Woods,

2016 WL 403057, at *11 (“‘[T]he test for a hostile work environment
has both objective and subjective components.’”) (citations omitted);
Bowman, 220 F.3d at 463 (“[T]he conduct must be severe or pervasive
enough to create an environment that a reasonable person would find
hostile or abusive and the victim must regard that environment as
abusive.”); McCoy v. Mv Residential Prop. Mgmt., Inc., No. 2:14-CV2642, 2016 WL 1392483, at *5 (S.D. Ohio Apr. 8, 2016) (“Although
Plaintiff may have indeed been subjectively upset, her subjective
perspective is insufficient to salvage her claims.”).
Finally, although defendant Junk’s behavior may be characterized
as rude and even boorish, his behavior falls short of other, even more
offensive, behavior that courts have rejected as a basis for a claim
of hostile work environment.

Compare Morris v. Oldham County Fiscal

Court, 201 F.3d 784, 790 (6th Cir. 2000) (upholding summary judgment
in favor of defendant where a supervisor told several dirty jokes in
the plaintiff’s presence that were not aimed at her, made a verbal
sexual advance related to the plaintiff’s evaluation, referred to
plaintiff as “Hot Lips,” and made comments about her state of dress);
Stacy v. Shoney’s, Inc., No. 97-5393, 1998 WL 165139, at *1-3 (6th
Cir. 1998) (finding no hostile work environment where, over a twomonth period, the supervisor allegedly harassed the plaintiff with
“sexually suggestive comments and leering looks” and “inappropriately

26

touched [the employee’s] breast when he removed and replaced an ink
pen from her front shirt pocket and said, ‘That's a nice pen.’”).
In short, the Court concludes that plaintiffs have not
established this prong of their claim for a hostile work environment,
i.e., that her work environment was so objectively hostile as to alter
the terms and conditions of her employment.

Defendant Junk is

therefore entitled to summary judgment on plaintiffs’ hostile work
environment claims.
C.

Sex Discrimination – Constructive Discharge (Count I)

Plaintiffs also allege that defendant Junk discriminated against
plaintiff Barron “by harassing her to the extent that she was forced
to resign under duress, at which time Defendant Junk replaced her with
a male employee.”

Amended Complaint, ¶ 33.

Although plaintiffs do

not explicitly use the term, the Court understands plaintiff Barron to
assert a claim for constructive discharge.

“To demonstrate

constructive discharge, a plaintiff must adduce evidence that (1) the
employer deliberately created intolerable working conditions, as
perceived by a reasonable person; (2) the employer did so with the
intention of forcing the employee to quit, and (3) the employee
actually quit.”

Savage v. Gee, 665 F.3d 732, 739 (6th Cir. 2012)

(internal quotation marks and citations omitted).

“To determine if

there is a constructive discharge, both the employer’s intent and the
employee’s objective feelings must be examined.”

Id. (quoting Moore

v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir.
1999)) (internal quotation marks omitted).

27

The parties do not

disagree that plaintiff Barron quit her employment, a fact that
satisfies the third prong of her constructive discharge claim.

This

Court must therefore consider whether plaintiff Barron has established
the first two prongs of her claim.
In analyzing the first prong of a constructive discharge claim, a
court must consider the following, singly or in combination:
(1) demotion; (2) reduction in salary; (3) reduction in job
responsibilities; (4) reassignment to menial or degrading
work; (5) reassignment to work under a [male] supervisor;
(6) badgering, harassment, or humiliation by the employer
calculated to encourage the employee’s resignation; or (7)
offers of early retirement or continued employment on terms
less favorable than the employee’s former status.
Regan, 679 F.3d at 482 (quoting Saroli v. Automation & Modular
Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005)). Of these
considerations, plaintiffs rely on only defendant Junk’s alleged
harassment or humiliation allegedly designed to encourage plaintiff
Barron’s resignation; none of the other Regan considerations are
present.
Defendant Junk’s conduct may have upset plaintiff Barron, but his
behavior did not create intolerable working conditions, as perceived
by a reasonable person.

Although plaintiff Barron may have cried

because of defendant Junk’s conduct at work, “hurt feelings are not
enough to create a case of constructive discharge.”

Peters v. Lincoln

Elec. Co., 285 F.3d 456, 479 (6th Cir. 2002).
Even construing in a light most favorable to plaintiffs the
evidence of defendant Junk’s intent to force plaintiff Barron to quit,
see Barron Deposition, p. 55 (“He [defendant Junk] personally told me

28

at one point he was trying to get rid of Angie [Farmer], to make her
miserable enough to quit, which he done to me.”), the record does not
establish that a reasonable person would have perceived the
Prosecutor’s office as presenting intolerable working conditions.
discussed supra, several of the incidents were isolated.

As

Cf. Mast v.

IMCO Recycling of Ohio, Inc., No. 01–3657, 58 F. App’x 116, at *124
(6th Cir. Feb. 3, 2003) (rejecting constructive discharge claim where,
inter alia, plaintiff alleged only isolated incidents and where
general allegations of being shunned by co-workers and supervisors
were not so unpleasant that a reasonable person would have felt
compelled to resign).

Although the more regularly occurring conduct

(i.e., accessing female employees’ computers to check histories,
requiring female employees to clock in and work between 8:30 a.m. to
4:30 p.m., “smirking” at female employees, asking if “everyone” had
clocked in, and talking about plaintiffs as if they were not there)
may have been upsetting, the Court is not persuaded that this conduct
rises to the level of intolerable working conditions sufficient to
establish a constructive discharge claim.

Notably, plaintiff Barron

also testified that defendant Junk accommodated her pregnancy by
permitting her to delay compliance with the dress code and permitted
her to take time off for doctors’ appointments.
pp. 22-23, 42.

Barron Deposition,

Based on this record, the Court cannot say that these

working conditions were so intolerable that a reasonable person in
plaintiff Barron’s position would have felt compelled to resign.
Savage, 665 F.3d at 739.

Having so concluded, plaintiff Barron’s

29

See

claim for constructive discharge must fail.

Id.; see also Regan, 679

F.3d at 481-82.
D.

Sex Discrimination – Termination on the Basis of Gender
(Counts I and IV)

Plaintiffs also allege that defendant Junk discriminated against
plaintiff Daniels by terminating her employment.
¶¶ 31-37.

It

Amended Complaint,

is unlawful for “an employer . . . to discharge any

individual, or otherwise to discriminate against any individual with
respect to compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex . . . .”
§ 2000e-2(a)(1).

42 U.S.C.

“When a claim of sex discrimination is built on

circumstantial evidence, . . . we use the three-step McDonnell Douglas
burden-shifting framework for evaluating the propriety of summary
judgment.”

Gunn v. Senior Servs. of N. Kentucky, No. 15–5320, 632 F.

App’x 839, at *843 (6th Cir. 2015).

Under this framework, a plaintiff

must first prove a prima facie case of discrimination.

Id.

If she

does so, the burden then shifts to the defendant to proffer a
legitimate, non-discriminatory reason for the adverse employment
action.

Id.

If the defendant is able to do so, the burden then

shifts back to the plaintiff to show that the articulated reason is
mere pretext.

Id.

Here, plaintiffs have not offered direct evidence

of discrimination, so the Court will apply this burden-shifting
framework to its analysis.
To establish a prima facie case of gender discrimination, a
plaintiff must show that

30

“(1) she is a member of a protected group; (2) she was
subjected to an adverse employment decision; (3) she was
qualified for the position; and (4) she was replaced by a
person outside the protected class, or similarly situated
non-protected employees were treated more favorably.”
Carroll v. Ohio Dep’t of Admin. Servs., No. 13–3552, 555 F. App’x 512,
at *515 (6th Cir. Feb. 5, 2014) (quoting Vincent v. Brewer Co., 514
F.3d 489, 494 (6th Cir. 2007)) (internal quotation marks omitted).

In

the case presently before the Court, neither plaintiffs nor defendant
acknowledge this burden-shifting framework or specifically address the
elements of plaintiff Daniels’s prima facie case.

However, the Court

infers from the parties’ filings that they do not disagree that
plaintiff Daniels was a member of a protected class, that she suffered
an adverse employment action, and that she was replaced by a person
outside the protected class, i.e., Dave Dickerson. See Junk
Deposition, p. 21; Farmer Deposition, pp. 81-82.

Moreover, the Court

assumes, for these purposes, that plaintiff Daniels can establish the
remaining element of her prima facie case, i.e., that she was
qualified for her job and performed it satisfactorily.
Again, the parties do not specifically address a purported
legitimate nondiscriminatory reason for the adverse action, but the
record includes Defendant Junk’s explanation that he terminated
plaintiff Daniels’ employment for “a number of things culminating in
her making a statement that I supposedly threatened her with a gun.”
Junk Deposition, p. 40.

Defendant Junk testified that plaintiff

Daniels’ complaint about the gun incident was
basically whining and venting to other people. If she
thought I had done something wrong all she had to do was

31

march over to the Sheriff’s office, see Sheriff Rich
Henderson, any of those guys. They could have called the
Bureau of Criminal Investigation. They could have come
down here, done a full investigation.
Id. at 63.

See also Farmer Deposition, pp. 43-45, 47-49 (testifying

regarding defendant Junk’s decision to fire plaintiff Daniels and
plaintiff’s discussion with Ms. Tackett and Ms. Hanna); Roberts
Affidavit, ¶ 19 (“Mr. Junk told me that he was firing Ms. Daniels
because she was ‘disloyal.’”).

Defendant Junk also articulated other

factors culminating in the termination of plaintiff Daniels’
employment:

according to defendant Junk, plaintiff Daniels was

hostile to him after he implemented new office policies; she failed to
follow directives; she lacked motivation; she had a bad attitude; she
raised her voice at him; and she acted like she could do whatever she
liked at work.

Junk Deposition, pp. 44-46, 49, 63-66.

Where, as here, the employer has presented evidence of a
legitimate, non-discriminatory justification for the adverse
employment action, the employee must then show that this articulated
reason is mere pretext for actual, unlawful discrimination by showing
that:

“(1) the employer’s stated reasons for terminating the employee

have no basis in fact, (2) the reasons offered for terminating the
employee were not the actual reason for the termination, or (3) the
reasons offered were insufficient to explain the employer’s action.”
Gunn v. Senior Servs. of N. Kentucky, No. 15–5320, 632 F. App’x 839,
at *844 (6th Cir. Dec. 7, 2015).

“[A] reason cannot be a pretext for

discrimination unless it is shown both that the reason was false, and
that discrimination was the real reason.”

32

Seeger v. Cincinnati Bell

Tel. Co., LLC, 681 F.3d 274, 285 (6th Cir. 2012) (internal quotation
marks and citations omitted).

In addition, under the “honest belief

rule” adopted by the United States Court of Appeals for the Sixth
Circuit, “[a]n employer has an honest belief in its reason for
discharging an employee where the employer reasonably relied on the
particularized facts that were before it at the time the decision was
made.”

Carroll, 555 F. App’x 512, at *515-16 (quoting Majewski v.

Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001))
(citations and internal quotation marks omitted).

“[R]egardless of

which rebuttal method a plaintiff uses, ‘[s]he always bears the burden
of producing sufficient evidence from which the jury could reasonably
reject the defendant’s explanation and infer that the defendant
intentionally discriminated against h[er].’”

Gunn, 632 F. App’x 839,

at *844 (quoting Seeger, 681 F.3d at 285)).
The parties do not expressly address the issue of pretext.

More

specifically, plaintiffs have not shown that defendant Junk’s
articulated reason for terminating the employment of plaintiff Daniels
is pretextual.

Although plaintiff Daniels testified that she was a

good employee and that defendant Junk could not identify “something
that hasn’t been done” by other employees, Daniels Deposition, p. 16,
plaintiffs have not shown that defendant Junk’s reasons for firing her
were false and that discrimination was the real reason for terminating
her employment.

See Seeger, 681 F.3d at 285.

Notably, plaintiffs

have pointed to no evidence that undermines defendant Junk’s testimony
that it was her telling other people that he had threatened her with a

33

gun that motivated his firing her.
*515-16.

See Carroll, 555 F. App’x 512, at

For all these reasons, plaintiffs’ wrongful termination

claim fails and defendants are entitled to summary judgment on this
claim.
E.

Retaliation (Counts II and V)

Plaintiffs allege that defendant Junk “fired Plaintiff Daniels in
retaliation for undertaking the protected activity of reporting
unlawful harassment.”

Amended Complaint, ¶ 41.

An employer may not

retaliate against an employee “because [s]he has opposed any practice
made an unlawful employment practice by this subchapter, or because
[s]he has made a charge, testified, assisted, or participated in any
manner in any investigation, proceeding, or hearing under this
subchapter.”

42 U .S.C. § 2000e–3(a) (containing both “the opposition

clause” and “participation clause”).

The Court must first consider

whether plaintiff Daniels has established a prima facie case of
retaliation.

She may do so by showing that

(1) the plaintiff engaged in activity protected under Title
VII; (2) plaintiff’s exercise of her protected rights was
known to defendant; (3) an adverse employment action was
subsequently taken against the employee or the employee was
subjected to severe or pervasive retaliatory harassment by
a supervisor; and (4) there was a causal connection between
the protected activity and the adverse employment action or
harassment.
Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 674 (6th Cir. 2013).
“[P]rotected activity includes complaints to co-workers,
reporters, and managers[.]”

Yazdian v. ConMed Endoscopic Techs.,

Inc., 793 F.3d 634, 647 (6th Cir. 2015).

See also E.E.O.C. v. New

Breed Logistics, 783 F.3d 1057, 1068 (6th Cir. 2015) “[I]t would be

34

unfair to read into [the opposition clause] a requirement that a
complainant only engages in protected activity when s/he opposes the
harassment to a ‘particular official designated by the employer.’”)
(citations omitted).

“Title VII does not protect an employee,

however, if his opposition is merely a ‘vague charge of
discrimination.’”

Yazdian, 793 F.3d at 645 (quoting Booker v. Brown &

Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989)).
Similarly, a complaint about a management style or decision instead of
discrimination against a protected class does not qualify as protected
activity.

See, e.g., Booker, 879 F.2d at 1313 (affirming grant of

summary judgment on retaliation claim where the plaintiff “was not
contesting any unlawful employment practice; he was contesting the
correctness of a decision made by his employer . . . [and] generally
attempts to dispute the employer’s position with regard to his
managerial style”); Willoughby v. Allstate Ins. Co., No. 03-5501, 104
F. App’x 528, at *531 (6th Cir. 2004) (“The district court properly
granted summary judgment [on the retaliation claim] because the
[plaintiff’s] letter was ‘contesting the correctness of a decision
made by his employer’ rather than asserting discrimination.”) (citing
Booker, 879 F.2d at 1313).
Plaintiffs allege that defendant Junk terminated plaintiff
Daniels’ employment after she “reported Defendant Junk’s
discriminatory behavior to fellow county employees.”
Complaint, ¶¶ 39-41.

Amended

As noted supra, when she was at the Pike County

courthouse, plaintiff Daniels spoke to Dominique Hanna, a victim

35

advocate at the Partnership against Domestic Violence, and to Tara
Tackett, a deputy at the Pike County Sheriff’s department, about the
Prosecutor’s office.

Daniels Depositions, pp. 36-37.

Defendant Junk

denies that plaintiff Daniels engaged in protected activity because
she did not report his alleged conduct to the Pike County Sheriff or
Commissioners and because plaintiff Daniels was simply venting
frustration rather than reporting alleged unlawful harassment and
discrimination.

Defendant’s Motion, pp. 10-12; Defendant’s Reply, pp.

7-9.
Plaintiff Daniels did not report defendant Junk’s alleged
discriminatory conduct to the Pike County Sheriff or to the County
Commissioners. She concedes that Ms. Tackett and Ms. Hanna were not
her supervisors, that they had no formal connection to the
Prosecutor’s office, that Ms. Hanna had no authority over the
Prosecutor or the Prosecutor’s office, that Ms. Hanna was not the
appropriate person to receive complaints regarding defendant Junk’s
alleged improper conduct, and that plaintiff Daniels did not report
defendant Junk’s conduct to the Pike County Commissioners.
37, 47-50.

Id. at 36-

However, plaintiff Daniels testified that she believed

that Ms. Tackett “had an obligation to report” the complaint to the
Sheriff.

Id. at 50.

Indeed, Ms. Tackett reported to Aaron Gullet, a supervisor in the
Pike County Sheriff’s office, Gullett Affidavit, ¶ 4, that “Rob Junk
was brandishing a firearm in his office and either pointed a gun at
her (Pam) in his office or in her general direction.” Id. at ¶ 9. Mr.

36

Gullet, in turn, called his supervisor “because of the nature of this
report and the fact that it involved the prosecutor. I made this
report because I suspected that my supervisor would want to call the
Ohio Bureau of Criminal Investigation to conduct an independent
investigation.” Id. at ¶ 10. Shortly thereafter, Mr. Reader, an
employee of the Prosecutor’s office, interviewed Ms. Tackett and
obtained a written statement from Ms. Hanna. Id. at ¶¶ 11-13. Later,
in the Prosecutor’s office and in Mr. Gullett’s presence, defendant
Junk “picked up the phone and fired Pam Daniels over the phone just a
few hours after she reported the incident with the gun to Tara
Tackett.” Id. at ¶ 18.
Under these circumstances, the Court rejects any contention that
plaintiff Daniels did not report her complaint to an appropriate
person.
However, the Court also concludes that plaintiff Daniels has not
established that her complaint specifically alleged a discriminatory
employment practice on the part of defendant Junk. Plaintiff’s
complaint, as recounted to Mr. Gullett, was about “Rob Junk . . .
brandishing a firearm in his office and either point[ing] a gun at her
(Pam) in his office or in her general direction.” Gullett Affidavit, ¶
9.12 More significantly, plaintiff Daniels did not testify in her
deposition that she specifically complained of unlawful harassment or
discrimination:

12

This is consistent with defendant Junk’s testimony on deposition that it was
plaintiff Daniels’ statement “that I supposedly threatened her with a gun,”
combined with her “job performance, attitude, arguing with me all the time,”
that led him to fire her. Junk Deposition, pp. 40, 64.

37

Q:
Okay. Now, as part of the complaint you indicate in
January 15th, 2014, you went to the county court and was
complaining about Rob’s actions?
A:
Yes, I was telling two girls at county court about the
behavior in the office - Q:

And who was that?

A:

-- environment.

Q:

Who were the girls?

A:

Dominique Hanna, and Tara Tackett.

Daniels Deposition, p. 36.
Q:
So you didn’t—- but you didn’t contact the sheriff
about it?
A:
I didn’t want to make an official report. I knew Rob
would fire us at the drop of a hat, but I thought maybe if
she just said something, maybe somebody would say, “Rob,
you need to settle it down. This behavior is--” I mean, it
was crazy.
Q:
But that’s not really why you were talking to Tara,
you were just upset and she happened to be someone you knew
and you were telling her about it, right?
A:
I was asked why I was up there. Rob had – - I had –usually I was –- I wasn’t at county court. Rob had changed
that and wanted me to start going to county court on court
days for felonies as a victim advocate.
Q:

Okay.

Did you have a problem with that?

A:
No, no. Nika had asked why I was there that day and I
said, “Rob wanted me to come up – Rob wants me to start
coming up on the felony – on preliminary hearings.”
Q:

Okay.

A:
Rob had made a statement at – I don’t know if it was a
meeting for the Partnership against Domestic Violence or –I don’t remember why he was there, but he made a statement
that I need to start going over -- something that she had
heard, like he wanted me to start going over to their
office too. And I said –- I just went on about all the

38

changes and the treatment in the office. I went ahead and
disclosed everything to Nika and Tara both at the table.
Id. at 50-51.
The Daniels Deposition identifies only vague complaints regarding
“the behavior in the office . . . environment” and “all the changes
and the treatment in the office[,]” which reflects merely her
disagreement with defendant Junk’s office policies and managerial
style rather than a protected activity.

See Booker, 879 F.2d at 1313.

Although she testified that she “disclosed everything to Nika and
Tara,” id. at 51,

plaintiff Daniels did not specifically state that

she reported to Ms. Tackett or to Ms. Hanna – or to any other
appropriate person - that she was being sexually harassed or
discriminated against on account of her sex or gender.
It is true that, in her affidavit submitted in response to
Defendant’s Motion, plaintiff Daniels avers that she reported to Ms.
Tackett and Ms. Hanna that she “was being sexually harassed and
treated differently in the office.”

Daniels Affidavit, ¶ 17.

However, a plaintiff may not overcome a motion for summary judgment
“simply by contradicting . . . her own previous sworn statement (by,
say, filing a later affidavit that flatly contradicts that party’s
earlier sworn deposition) without explaining the contradiction or
attempting to resolve the disparity.”
Corp., 526 U.S. 795, 806 (1999).

Cleveland v. Policy Mgmt. Sys.

“The rule therefore is that a party

opposing summary judgment with an affidavit that contradicts her
earlier deposition must explain why she disagrees with herself.”
Powell-Pickett v. A.K. Steel Corp., No. 12–4424, 549 F. App’x 347, 352

39

(6th Cir. Dec. 2, 2013) (citing White v. Baptist Mem’l Health Care
Corp., 699 F.3d 869, 877 (6th Cir. 2012)).

See also Aerel, S.R.L. v.

PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006) (“A directly
contradictory affidavit should be stricken unless the party opposing
summary judgment provides a persuasive justification for the
contradiction.”) (citation omitted).

Here, plaintiff Daniels does not

justify, or even acknowledge, the inconsistency on this issue between
her deposition and her affidavit.

The Court therefore will not

consider paragraph 17 of the later-filed Daniels Affidavit.
On this record, the Court is left only with evidence that
plaintiff Daniels complained about defendant Junk brandishing a
firearm in the office and her the vague complaints, as described in
her deposition, regarding “the behavior in the office . . .
environment” and “all the changes and the treatment in the office” and
her testimony that she “disclosed everything to Nika and Tara[.]”
There is simply no evidence that plaintiff Daniels specifically
complained of gender-based, unlawful harassment or discrimination.
Title VII does not protect these kinds of vague complaints of
discrimination.

Yazdian, 793 F.3d at 645.

In short, plaintiffs have

not established that plaintiff Daniels engaged in protected activity.
As it relates to plaintiff Daniels’ claim of retaliation, then,
Defendant’s Motion is meritorious.
F.

Intentional Infliction of Emotional Distress (Count III)

Finally, plaintiffs assert a claim for intentional infliction of
emotional distress, alleging that defendant Junk “berated and

40

belittled Plaintiffs constantly, treated them rudely and
condescendingly, yelled at them for no reason, exhibited physically
threatening behavior toward them, and in the case of Plaintiff
Daniels, pointed a gun at her in a threatening manner.”

Amended

Complaint ¶ 47.13 In order to establish a claim for intentional
infliction of emotional distress under Ohio law, a plaintiff must
prove that
(1)
defendant[]
either
intended
to
cause
emotional
distress, or knew or should have known that [his] conduct
would result in serious emotional distress to plaintiff;
(2) defendant[’s] conduct was so extreme and outrageous as
to go beyond all possible bounds of decency and was such
that it can be considered utterly intolerable in a
civilized community; (3) defendant[’s] conduct was the
proximate cause of plaintiff’s psychic injury; and (4)
plaintiff suffered serious emotional distress, such that no
reasonable person could be expected to endure it.
Bragg v. Madison, 20 F. App’x 278, 285-86 (6th Cir. 2001) (citing Roe
v. Franklin Cnty., 673 N.E.2d 172, 180 (Ohio Ct. App. 1996)). See also
Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995) (citing Hanly v.
Riverside Methodist Hosp., 603 N.E.2d 1126, 1132 (Ohio Ct. App.
1991)).
Plaintiffs testified that defendant Junk relished upsetting them
and that his conduct, described supra, caused them distress.

See

Daniels Deposition, pp. 57-58, 60-61, 72; Barron Deposition, pp. 16,
46, 59-60, 64-65.

Although plaintiffs offer their personal beliefs in

this regard, they offer no evidence that defendant Junk intended to
cause them emotional distress, knew that his conduct would cause them

13

As noted supra, plaintiff Daniels expressly testified on deposition that,
during the gun incident, the gun was not pointed at her. Daniels Deposition,
p. 34.

41

emotional distress, or should have known his conduct would result in
serious emotional distress.

See Bragg, 20 F. App’x at 285-86.

Moreover, plaintiffs offer no evidence even suggesting that defendant
Junk’s conduct “was so extreme and outrageous as to go beyond all
possible bounds of decency and was such that it can be considered
utterly intolerable in a civilized community.” Id.; see generally
Amended Complaint; Plaintiffs’ Response.

Notably, as discussed supra,

plaintiffs concede that defendant Junk had the authority to implement
and carry out some of the very things about which they complain, e.g.,
the new hourly schedule, the time clock, the dress code, and checking
personal internet histories on work computers.
Accordingly, as it relates to plaintiffs’ claims of intentional
infliction of emotional distress, Defendant’s Motion is meritorious.

WHEREUPON, Defendants’ [sic] Motion for Summary Judgment, ECF No.
25, is GRANTED.14
The Clerk is DIRECTED to enter FINAL JUDGMENT.

August 4, 2016

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

14

Having concluded that plaintiffs’ claims fail, the Court need not and does
not address defendant Junk’s qualified immunity argument or his claim to
immunity pursuant to O.R.C. § 2744.03.

42