Boxill et al v. O'Grady et al
Filing
116
OPINION AND ORDER granting in part and denying in part ECF No. 107 Defendant James P. O'Grady's Motion for Summary Judgment. Signed by Judge Edmund A. Sargus on 3/24/2021. (cmw)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANDREA BOXILL,
Plaintiff,
Case No. 2:16-cv-126
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Chelsey M. Vascura
v.
JAMES P. O’GRADY,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant James P. O’Grady’s Motion for Summary
Judgment (ECF No. 107), Plaintiff Andrea Boxill’s Memorandum in Opposition (ECF No. 113),
and Defendant’s Reply (ECF No. 114). For the reasons that follow, the Motion for Summary
Judgment is GRANTED in part and DENIED in part.
I. BACKGROUND
A.
Factual Background
Plaintiff Andrea Boxill, an African-American woman, began her employment at the
Franklin County Municipal Court (“FCMC”) in 2004. (Boxill Decl. II at ⁋ 5, ECF No. 110-1.)
She was hired as the Specialty Docket Coordinator for the newly created Mental Health Court
Program. (See id. at ⁋⁋ 4–7.) Boxill’s direct supervisor was the judge assigned to the Mental
Health Court, Scott VanDerKarr. (See id. at ⁋ 11.) At that time, James O’Grady was Judge
VanDerKarr’s bailiff. (Id. at ⁋ 4.) Boxill and O’Grady worked together from 2004 through 2007.
(VanDerKarr Dep. I, ECF No. 104, PageID 2137.) Boxill avers that O’Grady made frequent
sexually vulgar statements and racially derogative comments during this time. (E.g., Boxill Dep.,
ECF No. 91, PageID 795, 798, 804, 808.) O’Grady resigned from his position in 2007 after passing
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the bar exam and finding employment as an attorney. In the ensuing years, Boxill oversaw the
continued expansion of the Specialty Docket.
Four years later, Boxill was still working at the FCMC when O’Grady took the bench in
November 2011. By that time, she was managing a full staff and reporting directly to both Judge
VanDerKarr and Judge Herbert. Boxill worked on the 12th floor, as she had before, while Judge
O’Grady had his chambers and courtroom on the 14th floor. (Schmidt Decl. at ⁋ 14, ECF No. 1102.)
Boxill testified that, during this period, Judge O’Grady made comments of a sexual nature
that made her feel uncomfortable and unsafe. (Boxill Dep., ECF No. 91, PageID 938.) One
example of this occurred around 2012 in the common area of Judge O’Grady’s and Judge Peeples’
shared chambers. (Id. at PageID 938–39.) Boxill was there waiting to get a document signed by
Judge Peeples. (Id. at PageID 938.) Judge O’Grady was talking to two bailiffs and another person
about two defense attorneys who had recently ended a romantic relationship. Boxill avers that
Judge O’Grady commented that the male attorney knew the female attorney “was a freak when he
got with her,” that she was “a wild partier and loved to sleep around,” and that “[h]e’s got to figure
out how to get rid of her.” (Id. at PageID 939.) In a similar instance that also occurred while
Boxill was waiting for a signature, Judge O’Grady was in another conversation about who was
dating whom. (Id. at PageID 942–43.) In her deposition, Boxill testified that Judge O’Grady made
the comment that he “would consider sleeping with” a particular bailiff. (Id. at PageID 943.)
Also during this time period, Boxill testified that on a regular basis she experienced and
observed demeaning and abusive language from Judge O’Grady. (Id. at PageID 848.) For
example, Boxill contends that abusive language, that was commonplace when O’Grady was a
bailiff, was utilized repeatedly when he took the bench as a judge:
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Q.· · · · ·Okay. So [as a judge, O’Grady continued to] use of the term “fuck,” that
was commonplace with Bailiff O’Grady?
A.· · · · ·Yes.
Q.· · · · ·”Whore”?
A.· · · · ·Yes.
Q.· · · · ·”Bullshit”?
A.· · · · ·Yes.
Q.· · · · ·”Smoking hot” to describe a woman?
A.· · · · ·Yes.
(Boxill Dep., ECF No. 91, PageID 1012–13.)
In February 2013, Boxill avers that Judge O’Grady said to her: “Look at how you dress.
You disgust me.” (Id. at PageID 848, 851.) Boxill testified that in the “open hallways in the
Municipal Court” and in front of a defendant, Judge O’Grady “called me a fuck -- a fucking idiot
and asked me what the fuck is wrong with [me].” (Id. at PageID 940.)
Boxill further avers that coordinators began reporting that they did not feel comfortable
going to Judge O’Grady’s courtroom. (Boxill Dep. at PageID 843; Schmidt Decl. at ⁋ 15, ECF
No. 110-2.) Boxill provides evidence of one example of the reports Boxill received from
Shanequah Gaiters. (Boxill Dep. at PageID 846–47.) Gaiters came to Boxill, visibly upset. (Id.)
She informed Boxill that she had secured the consent of a female defendant with a history of arrests
for prostitution for referral to the human-trafficking program. (Id.) The case was assigned to
Judge O’Grady. (Id.) Gaiters went to his courtroom to complete the referral. (Id.) 1 Declining to
sign the referral, Judge O’Grady allegedly stated in open court that “this program is a fucking joke.
As the last step in the process of transferring cases to the Specialty Docket programs, a coordinator would take
paperwork to the assigned FCMC judge for review and a signature. (Boxill Dep., ECF No. 91, PageID 842.)
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This woman is a whore, she’s always going to be a whore, I do not want to sign this entry.” (Id.)
After that, Gaiters told Boxill she no longer wanted to appear before Judge O’Grady. (Id.)
Another coordinator, Ashley Schmidt, testified that Judge O’Grady’s “conduct made [her]
very uncomfortable [as he] tri[ed] to embarrass [her]” because “[h]e was demeaning,
condescending to women, and would question a woman’s ability.” (Schmidt Decl. at ⁋ 15, ECF
No. 110-2.) Schmidt asked a male coordinator to take her referrals to Judge O’Grady because he
did not treat the man “in the same manner.” Id. Later, Boxill began taking the referrals to Judge
O’Grady herself because of complaints similar to those submitted by Schmidt and Gaiters. (Boxill
Dep. at PageID 841–42.)
Judge VanDerKarr testified that in this time period, “almost every single [Specialty Docket
staffer] was telling me the way he [O’Grady] spoke to them and addressed them, they felt very
intimidated, didn’t even want to go up to that courtroom anymore.” (VanDerKarr Dep. II, ECF
No. 105, PageID 2277.)
Boxill testified that because of several confrontations with Judge O’Grady where he
regularly called her “a fucking idiot” and asked her “what the fuck is wrong with her,” her fear of
termination grew. (Id., PageID 940.) While Boxill worked for the court while O’Grady was a
judge, he did not have the unilateral authority to fire her, unless a majority of the judges on the
court agreed. (Id., PageID 1055; see VanDerKarr Dep. I, ECF No. 104, PageID 2126.) Boxill
avers that her fear increased as time went on, even though she had made reports and complaints to
the highest officials in the FCMC. (Boxill Decl. I at ⁋⁋ 24–27, ECF No. 95, PageID 1251–52.)
Judge VanDerKarr submitted a letter to Administrative Judge Brandt dated March 19,
2014, “to inform [him] on an ongoing situation involving Judge James O’Grady in that he has
created undue stress and strain and exhibited bias and prejudice toward certain employees, most
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specifically of the Specialized Dockets.” (Pl. Exhibit 66, ECF No. 111-1, PageID 2491.) Judge
VanDerKarr ended the letter with his “concern[] that if left unaddressed, Judge O’Grady’s
behavior may result in future litigation that could subject the Court to liability, possibly for the
creation and continuation of a hostile work environment, and the payment of damages.” (Id.; see
also VanDerKarr Dep. II, ECF No. 105, PageID 2251, 2272–2278.)
Judge O’Grady submits evidence, disputing that he engaged in any such conduct. (E.g.,
Glaeden Dep., ECF No. 97, PageID 1398; Whittier Decl. at ⁋ 11, ECF No. 106-3; Frank Decl. at
⁋ 5, ECF No. 106-6.) At this stage of the case, the Court is only deciding whether the Plaintiff has
provided sworn testimony sufficient to support her claims.
In June 2014, Boxill began looking for employment elsewhere. (Boxill Dep., ECF No. 91,
PageID 753.) That July, Boxill found a position in the Ohio Governor’s Office. (Id. at PageID
753–55.) And in August 2014, Boxill resigned from her position at the FCMC. (Id. at PageID
753.) Boxill testified: “I left the court because I was tired of the sexual and vulgar comments that
were made to me as an African-American woman, they were made to me in front of me, about me,
and around me, by Judge O’Grady.” (Id. at PageID 936.)
B.
Procedural Background
Boxill filed suit on February 10, 2016. (ECF No. 1.) She subsequently filed an Amended
Complaint on April 3, 2017. (ECF No. 37.) Boxill was joined by Teresa Barry in her suit, and
brought various claims against Judges O’Grady, Graeden, Green, and Brandt, as well as Emily
Shaw, and the Franklin County Municipal Court/State of Ohio. (Civil Cover Sheet, ECF No. 11.) On February 1, 2018, Teresa Barry and the Franklin County Municipal Court/State of Ohio
were terminated from the case. (See ECF No. 49.) On March 30, 2018, with another Judge
presiding, an Opinion and Order issued granting Defendants’ Motion to Dismiss for Failure to
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State a Claim, and the Clerk entered final judgment. (ECF Nos. 51, 52.) Boxill appealed. (See
ECF No. 53.) The Sixth Circuit affirmed in part and reversed in part. Boxill v. O’Grady, 935 F.3d
510 (6th Cir. 2019). Specifically, it reversed with respect to the dismissal of Boxill’s hostile work
environment claims against Judge O’Grady. Id. at 521. The presiding Judge subsequently recused
himself and the case was reassigned to this Court’s docket. (ECF No. 62.) Discovery followed.
On June 19, 2020, Judge O’Grady filed a motion for summary judgment on Boxill’s
remaining claims that Judge O’Grady created a hostile work environment based on her gender
and/or race. (ECF No. 107.) The motion is now fully briefed and ripe for review. (ECF Nos. 107,
113, 114.)
II. LAW
A.
Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine issue 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The “party seeking 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.” Celotex, 477 U.S. at 323. The
burden then shifts to the nonmoving party who “must set forth specific facts showing that there is
a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.
R. Civ. P. 56(e)). “The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–
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59 (1970)). A genuine issue of material fact exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. at 248; see also Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (The requirement that a dispute be “genuine”
means that there must be more than “some metaphysical doubt as to the material facts.”).
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 v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234–35 (6th Cir. 2003) (quoting
Anderson, 477 U.S. at 251–52).
B.
42 U.S.C. § 1983
Boxill filed her claims pursuant to 42 U.S.C. § 1983, which provides a remedy for “the
deprivation of rights, privileges, or immunities secured by the Constitution and laws” with respect
to actions taken by persons acting “under color of any statute, ordinance, regulation, custom, or
usage, of any State.” 42 U.S.C. § 1983. To prevail on a claim brought under § 1983, a plaintiff
must prove (1) that she was deprived of a right secured by the Constitution or laws of the United
States and (2) that the deprivation was caused by a person acting under color of law. Webb v.
United States, 789 F.3d 647, 659 (6th Cir. 2015). When suing an individual for a constitutional
violation under § 1983, a plaintiff must demonstrate that the actor “‘directly participated’ in the
alleged misconduct, at least by encouraging, implicitly authorizing, approving or knowingly
acquiescing in the misconduct, if not carrying it out himself.” Flagg v. City of Detroit, 715 F.3d
165, 174 (6th Cir. 2013) (quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).
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III. ANALYSIS
Boxill brings her claims under the Equal Protection Clause of the United States
Constitution. (Amend. Compl. at 9–10, ECF No. 37.) Specifically, Boxill contends that Judge
O’Grady engaged in sex and race-based harassment creating a gender and race-based hostile work
environment that ultimately lead to her constructive discharge. (See Resp. to Mot. for Summ. J.
at 36, ECF No. 113.) Sex or race-based harassment claims brought through a § 1983 cause of
action use the same test applied under Title VII. Boxill, 935 F.3d at 520. Judge O’Grady argues,
as a preliminary matter, that (A) Boxill’s claims are barred by the statute of limitations. He next
argues that, even if the claims are not time-barred, (B) Boxill has failed to raise any genuine issue
of material fact as to her hostile work environment claims and he is entitled to judgment as a matter
of law.
A.
Statute of Limitations
Judge O’Grady contends that Ohio’s two-year statute of limitations for a § 1983 action bars
the Court from considering any of his alleged conduct that occurred prior to February 10, 2014.
(Mot. for Summ. J. at 15, ECF No. 107.) Boxill asserts hostile work environment claims, which,
as the Supreme Court has explained, “will not be time barred so long as all acts which constitute
the claim are part of the same unlawful employment practice and at least one act falls within the
time period.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002); see also Sharpe
v. Cureton, 319 F.3d 259, 267 (6th Cir. 2003) (extending the Supreme Court’s Morgan ruling to
§ 1983 claims).
1.
Timeliness of Sex-Based Hostile Work Environment Claim
Regarding Boxill’s sex-based discriminatory harassment allegations, Judge O’Grady’s
conduct predating February 10, 2014 is part of the same purported unlawful employment practice
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as his conduct after that date; it is all part of the same alleged hostile work environment based on
sex. Boxill references specific examples of Judge O’Grady’s alleged conduct that occurred before
February 10, 2014, but she also maintains that these were just examples and that the conduct
occurred frequently after that date as is shown by her deposition testimony set out above, where
she testifies that Judge O’Grady used the same sexually abusive language while he was a judge as
he did while he was a bailiff. (Boxill Dep. at PageID 941–42, 1012–13, ECF No. 91.) Boxill
testified that when she left the court in the summer of 2014, it was because she was “tired of the
sexual and vulgar comments” allegedly made by Judge O’Grady. (Id. at PageID 936.) A
reasonable jury could credit this testimony, triggering the continuing course of conduct exception
to the statute of limitations. Thus, Boxill’s sex-based hostile work environment claim is not barred
by the statute of limitations. Defendant is, therefore, not entitled to summary judgment on this
basis.
2.
Timeliness of Race-Based Hostile Work Environment Claim
Regarding Boxill’s race-based discriminatory harassment allegations, the Court finds that
the continuing course of conduct exception to the statute of limitations does not apply. Boxill has
not presented evidence that Judge O’Grady made any racial comments while on the bench, either
before or after February 10, 2014. Boxill has presented evidence that Judge O’Grady harassed
her, that he berated and demeaned her, and that she believes that he did so because of her race.
However, the only racial comments that Boxill alleges O’Grady made took place in 2004, while
O’Grady was a bailiff. There is no evidence of Judge O’Grady making racial comments to Boxill
or anyone else once he took the bench, and no evidence of him making racial comments after
February 10, 2014. As such, the racial comments do not constitute a continuing course of conduct,
and that exception to the statute of limitations does not apply.
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Accordingly, Judge O’Grady is entitled to summary judgment in his favor on Boxill’s racebased harassment claim because it is time-barred by the applicable statute of limitations.
B.
Sex-Based Hostile Work Environment Claim
Boxill asserts that Judge O’Grady engaged in sex-based harassment creating a hostile work
environment. (See Resp. to Mot. for Summ. J. at 36, ECF No. 113.) Discriminatory harassment
encompasses “discriminatory intimidation, ridicule, and insult,” among other objectionable
behaviors. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 65 (1986)). “[H]arassing behavior that is not sexually explicit but is
directed at women and motivated by discriminatory animus against women satisfies the ‘based on
sex’ requirement.” Williams v. Gen. Motors Corp., 187 F.3d 553, 565 (6th Cir. 1999). That is,
“the law recognizes that non-sexual conduct may be illegally sex-based where it evinces ‘antifemale animus, and therefore could be found to have contributed significantly to the hostile
environment.’” Id. The Sixth Circuit has made “clear that the conduct underlying a sexual
harassment claim need not be overtly sexual in nature. . . . Any unequal treatment of an employee
that would not occur but for the employee’s gender may, if sufficiently severe or pervasive under
the Harris standard, constitute a hostile environment in violation of Title VII.” Id. (emphasis in
original).
Discriminatory harassment creates a hostile work environment when it is “‘sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Harris, 510 U.S. at 21 (quoting Meritor Savings Bank, 477 U.S. at 67);
see Hickman v. Laskodi, 45 F. App’x 451, 454 (6th Cir. 2002). There is both an objective and a
subjective element to the existence of a hostile work environment: “the conduct must be severe
enough to create an environment that a reasonable person would find hostile or abusive and the
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victim must subjectively regard that environment as abusive.” Bowman v. Shawnee State Univ.,
220 F.3d 456, 463 (6th Cir. 2000).
In determining whether conduct is severe or pervasive enough to constitute a hostile work
environment, a court should consider, among other factors, “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.”
Hickman, 45 F. App’x at 454 (quoting Bowman, 220 F.3d at 463) (internal quotation marks
omitted). Whether a hostile work environment exists is a determination that must be made based
on the totality of the circumstances. Harris, 510 U.S. at 23; Williams, 187 F.3d at 562.
To survive summary judgment, Boxill must show or raise a genuine issue of material fact
as to whether “(1) she belonged to a protected group, (2) she was subject to unwelcome
harassment, (3) the harassment was based on [her protected status], (4) the harassment was
sufficiently severe or pervasive to alter the conditions of employment and create an abusive work
environment, and (5) the defendant knew or should have known about the harassment and failed
to act.” Id. (quoting Waldo v. Consumers Energy Co., 726 F.3d 802, 813 (6th Cir. 2013)). Moving
for summary judgment, Judge O’Grady submits that there is insufficient evidence to create a jury
question on (1) the third element and (2) the fourth element of his claim. (Mot. for Summ. J. at
21, ECF No. 107.) 2
1.
Third Element: Harassment Based on Sex
According to Boxill, Judge O’Grady harassed her based on her sex and mistreated and
harassed her and other women in her presence or of which she was aware, and in so doing created
In his motion, Judge O’Grady also argues that when he was a bailiff, he had no supervisory authority over Boxill
and therefore could not have acted under color of law. Boxill responded at length with the argument that Defendant
is not entitled to qualified immunity. In his reply, Judge O’Grady clarified that he does not take the position that he
is entitled to qualified immunity. The Court, therefore, need not address qualified immunity.
2
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a sex-based hostile work environment that ultimately lead to her constructive discharge. Boxill
provides evidence that Judge O’Grady regularly: (1) called women “whore,” including a defendant
in open court, (2) referred to women as “smoking hot,” (3) described a female defense attorney as
“a freak” and “a partier” who “loved to sleep around,” (4) stated that he would consider sleeping
with a particular bailiff, (5) told Boxill “you disgust me” in reference to her attire, (6) regularly
used foul and confrontational language to Boxill and other women but not toward men, and (7)
treated women who appeared before him in an abusive manner but did not treat men the same.
Boxill testifies that this conduct occurred “frequently.” (Boxill Dep., ECF No. 91, PageID 941–
42.) She further testifies that this conduct caused her to leave the court, which she alleges was a
constructive discharge. (Id. at PageID 936.) This evidence, while not all overtly sex-based, is
directed at women and a reasonable inference could be made that it was, or was not, motived by
discriminatory animus against women, which “satisfies the ‘based on sex’ requirement” at this
juncture. Williams, 187 F.3d at 565.
Judge O’Grady offers evidence from several men and women who worked closely with
him who testified that they do not recall him making sexist remarks. (E.g., Glaeden Dep., ECF No.
97, PageID 1398; Whittier Decl. at ⁋ 11, ECF No. 106-3; Frank Decl. at ⁋ 5, ECF No. 106-6.)
This Court may not make credibility determinations at summary judgment. Thus, this
evidence presents a sufficient disagreement to require submission to a jury. Accordingly, Boxill
has met her burden of raising a genuine issue of material fact as to the third element of her sexbased hostile work environment claim.
2.
Fourth Element: Sufficiently Severe or Pervasive Harassment that Alters the
Conditions of Employment and Creates an Abusive Work Environment
Judge O’Grady next contends that his alleged conduct was not sufficiently severe or
pervasive to create a hostile work environment, the fourth element of a sex-based hostile work
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environment claim. (See Mot. for Summ. J. at 20–21). Further, Judge O’Grady submits that
because Boxill brought her claims via § 1983 for alleged violations of the Equal Protection Clause,
she must show, in addition to the conduct being subjectively and objectively abusive, that Judge
O’Grady intended to harass her. (Mot. for Summ. J. at 16, ECF No. 107 (citing King v. Bd. of
Regents of Univ. of Wisconsin Sys., 898 F.2d 533, 537 (7th Cir. 1990).) In the Sixth Circuit,
however, a plaintiff needs to show only that the conduct was subjectively and objectively abusive.
See Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000).
As to the subjective prong, “the victim must ‘subjectively perceive the environment to be
abusive.’” Williams, 187 F.3d at 566 (quoting Harris, 510 U.S. at 21). Boxill claims that she
regarded Judge O’Grady’s conduct as abusive and harassing. She testified that she found it so
abusive that she sought and found another job. The testimony submitted by Boxill, and set out
above, sufficiently supports her subjective belief to defeat a motion for summary judgement.
O’Grady contends that Boxill’s testimony is insincere, which is reflected in her reaction to
the comments that “do not reflect intimidation or powerlessness on her part.” (Mot. at 21, ECF
No. 21) (citing as examples Boxill’s responses to Judge O’Grady “you’re disgusting;” “that’s
ridiculous;” “you’re making an assumption;” “that’s really messed up”). He concludes that,
“although this Court must view the evidence in the light most favorable to Boxill, the testimony
of those Boxill identified as present during these alleged incidents shows, at a minimum, that they
either did not hear what Boxill now recounts or that they were not offended.” (Mot. at 22, ECF
No. 107.) Again, however, the credibility of witnesses is the exclusive province of the jury and
cannot be resolved by this Court on motion.
With regard to the objective prong of the hostile work environment inquiry, the evidence
before the Court, if believed, does not reflect a mere offensive utterance. Instead, Boxill testified
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that the conduct was frequent, commonplace, that is was severe in that it used extremely derogative
terms about women, such as “whore.” She provided evidence that Judge O’Grady spoke about the
sexual exploits of female attorneys. An objective observer could find that it is humiliating to hear
women referred to in these terms, that it was embarrassing to hear Judge O’Grady’s thoughts about
female attorneys and his opinion of their sexual conduct, that the frequent foul language was
abusive, and that all of this could unreasonably interfere with an employee’s work performance.
The evidence of comments Judge O’Grady made to and about other women but not directly to
Boxill are also relevant to this inquiry. See Warf v. U.S. Dep't of Veterans Affairs, 713 F.3d 874
(6th Cir.2013) (courts dealing with the fourth element’s objective test “may also consider general
sexual harassment in the workplace.”) Boxill’s testimony is supported by a co-worker, who avers
that Judge O’Grady “was demeaning, condescending to women, and would question a woman’s
ability.” (Schmidt Decl. at ⁋ 15, ECF No. 110-2.) Another coworker filed suit against Judge
O’Grady based on sexual harassment and Boxill knew about the bases of the suit. Barry v.
O'Grady, 2:14-CV-2693, 2017 WL 1234048 (S.D. Ohio Mar. 31, 2017) aff’d 895 F.3d 440 (6th
Cir. 2018). And, Judge VanDerKarr was concerned about Judge O’Grady’s behavior such that he
wrote a letter about potential hostile work environment liability. (Pl. Exhibit 66, ECF No. 111-1,
PageID 2491.) Viewing this evidence in the light most favorable to Boxill, the Court finds that
she has raised a genuine issue of material fact as to whether an objectively reasonable person would
find the conduct abusive.
Accordingly, Boxill has met her burden of raising genuine issues of material fact as to
whether the harassment was sufficiently severe and pervasive to alter the conditions of her
employment and create an abusive working environment. Thus, Defendant is not entitled to
summary judgment based on this element of Boxill’s prima facie case.
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3.
Constructive Discharge
A plaintiff’s assertion of constructive discharge “stems from, and can be regarded as an
aggravated case of, sexual harassment or hostile work environment.” Pa. State Police v. Suders,
542 U.S. 129, 146 (2004) (explaining that, in addition to the existence of a hostile work
environment, a claim of constructive discharge “entails something more”: evidence that “working
conditions [were] so intolerable that a reasonable person would have felt compelled to resign”).
“Constructive discharge from employment is not itself a cause of action. First there must exist an
underlying cause of action for employment discrimination.” Keaton v. Ohio, No. C2-00-1248,
2002 WL 1580567, at *12 (S.D. Ohio June 3, 2002); see also Pa. State Police, 542 U.S. at 149
(“Creation of a hostile work environment is a necessary predicate to a hostile-environment
constructive discharge case.”).
Here, there is an underlying cause of action because the Court finds supra that Boxill’s
sex-based hostile work environment claim must be decided by a jury. Thus, the Court reviews her
claim that she was constructively discharged.
“A constructive discharge occurs when the employer, rather than acting directly,
‘deliberately makes an employee’s working conditions so intolerable that the employee is forced
into an involuntary resignation.” Laster v. City of Kalamazoo, 746 F.3d 714, 727 (6th Cir. 2014).
The Sixth Circuit has also indicated that constructive discharge can take two different forms:
We are ordinarily faced with a situation in which the employee only alleges
that she resigned because of discriminatory harassment, and in such cases, we
require the plaintiff to demonstrate a discriminatory work environment even more
egregious than the high standard for hostile work environment.
But that is not the only method of demonstrating constructive discharge.
When an employer acts in a manner so as to have communicated to a reasonable
employee that she will be terminated, and the plaintiff employee resigns, the
employer’s conduct may amount to constructive discharge.
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Case: 2:16-cv-00126-EAS-CMV Doc #: 116 Filed: 03/24/21 Page: 16 of 16 PAGEID #: 2662
Laster v. City of Kalamazoo, 746 F.3d 714, 728 (6th Cir. 2014) (emphasis added by Sixth Circuit)
(adopting the standard set out in E.E.O.C. v. University of Chicago Hospitals, 276 F.3d 326, 331–
32 (7th Cir. 2002)).
In the case sub judice, in addition to the alleged harassment set forth above, Boxill provides
evidence that Judge O’Grady’s behavior and conduct interfered with her ability to do her job,
causing her increasing anxiety and emotional distress. (Pl’s Mem. in Opp. at 42, ECF No. 113)
(citing Schmidt Dec., ¶21, ECF No. 110-2, PageID 2458; Thrasher Dec., ¶¶10-12, ECF No. 1103, PageID 2461). Judge VanDerKarr testified that Boxill brought such concerns to his attention,
specifically that the events were occurring because of her gender. (VanDerKarr II Dep., ECF No.
105, PageID 2242–43.) Additionally, Boxill testified that Judge VanDerKarr informed her that
Judge O’Grady wanted her fired. (Boxill Dep., ECF No. 91, PageID 794.) VanDerKarr confirmed
this in his own testimony. (VanDerKarr II Dep., ECF No. 105, PageID 2203.)
The Court finds that, when viewing the totality of the circumstances in the light most
favorable to Boxill, and making all justifiable inferences in her favor, a jury could find, or not find,
that she was constructively discharged.
IV. CONCLUSION
For the reasons stated above, Defendant’s Motion for Summary Judgment, (ECF No. 107),
is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
3/24/2021
DATED
s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE
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