Schmitz v. Bob Evans Farms, Inc.

^* Reporter's Note: A discretionary appeal to the Supreme Court of Ohio was not allowed in (1997), 80 Ohio St. 3d 1414,684 N.E.2d 706. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Appellant, Kevin M. Schmitz, appeals the grant of summary judgment to appellees, Jaymz Keller and Bob Evans Farms, Inc. ("BEF"). For the following reasons, we affirm the grant of summary judgment.

In July 1994, Schmitz and Keller worked at BEF's Elyria restaurant. Keller was a second assistant manager at the restaurant; Schmitz, who was a minor at the time, worked as a busser. Keller is homosexual; Schmitz is heterosexual. Both Keller and Schmitz are male.

On July 28, 1994, Schmitz and Keller worked late into the night. Schmitz testified on deposition that as the two worked, Keller discussed his homosexual lifestyle with Schmitz. Later, according to appellant, Keller commented that he liked Schmitz's hair. Appellant alleged that as the night wore on he requested a schedule change from Keller. Keller allegedly told Schmitz that he might "have to do something for it."

After completing the work, Keller drove Schmitz home. Appellant testified that during the ride to his parents' house, Keller revealed his fear about violence directed at homosexuals. Allegedly, Keller told Schmitz how attractive he thought that he was. According to appellant, Keller then made references to performing fellatio on him, asked him if he had ever measured his penis, and told him not to tell anyone what he had said. The remainder of the drive to Schmitz's house was without further incident.

The following day, appellant brought these allegations to the attention of the BEF area director, Tom O'Donnell. Keller subsequently resigned. Appellant filed a three-count complaint against both Keller and BEF, alleging quid pro quo sexual harassment in violation of R.C. 4112.02. Upon motion by both defendants, the trial court granted summary judgment. Schmitz appeals and asserts two assignments of error.

I Appellant's first assignment of error states:

"The trial court erred by concluding that plaintiff-appellant did not present a prima facie case of quid pro quo sexual harassment by defendant-appellee Jaymz Keller and in granting the motions for summary judgment of defendant-appellees Jaymz Keller and Bob Evans Farms, Inc."

This court reviews de novo a trial court's grant of summary judgment. Palmieri v. Deaconess Hosp. (June 13, 1996), Cuyahoga App. No. 70067, unreported, 1996 WL 325324.

"Civ.R. 56(C) provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." LaCava v. Walton (June 13, 1996), Cuyahoga App. No. 69190, unreported, 1996 WL 325274.

The movant must demonstrate that no genuine issue of material fact remains requiring trial. Palmieri, supra. A factual dispute is material if it can affect the outcome of the trial.Needham v. The Provident Bank (1996), 110 Ohio App. 3d 817,675 N.E.2d 514, citing Anderson v. Liberty Lobby, Inc. (1986),477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, 211-212. A factual dispute is genuine where reasonable minds could return a verdict in favor of the nonmoving party. Id.

Upon motion for summary judgment, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St. 3d 108, 111, 570 N.E.2d 1095, 1099.

"`[A] nonmovant may not rest on the mere allegations or denials of his pleading but must set forth specific facts showing there is a genuine issue for trial.'" Palmieri, supra, quoting Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App. 3d 421, 629 N.E.2d 513. Further, to survive summary judgment, a plaintiff must produce more than a scintilla of evidence in support of her position. Redd v. Springfield Twp.School Dist. (1993), 91 Ohio App. 3d 88, 92, 631 N.E.2d 1076,1078-1079. Finally, the court must resolve doubts in favor of the nonmoving party. Palmieri, supra.

Appellant alleges that the defendants violated R.C. 4112.02. R.C. Chapter 4112 is Ohio's analog to Section 2000e, Title 42, U.S. Code ("Title VII"), and it includes a broad prohibition against employment discrimination. Helmick v. Cincinnati WordProcessing, Inc. (1989), 45 Ohio St. 3d 131, 134,543 N.E.2d 1212, 1215-1216. Like Title VII, R.C. 4112.02 prohibits sexual harassment. Id. (paragraph one of the syllabus). Resolving this appeal, we note that "federal case law interpreting Title VII * * * is generally applicable to cases involving alleged violations of R.C. Chapter 4112." Plumbers Steamfitters JointCommt. v. Ohio Civil Rights Comm. (1981), 66 Ohio St. 2d 192, 196, 20 O.O.3d 200, 202, 421 N.E.2d 128, 131.

Appellant's claims present an issue of first impression to this jurisdiction. No Ohio court has decided that a heterosexual male may state a sexual harassment claim against his homosexual male supervisor. Predictably, the parties disagree as to whether R.C. Chapter 4112 recognizes such a claim.

The federal courts that have addressed the question in Title VII litigation are divided on whether a sexual harassment claim exists against another of the same sex. See, e.g., Oncale v.Sundowner Offshore Serv., Inc. (C.A.5, 1996), 83 F.3d 118, petition for certiorari granted (1997), ___ U.S. ___,117 S. Ct. 2430, 138 L. Ed. 2d 192 (same-sex sexual harassment claims not actionable); McWilliams v. Fairfax Cty. Bd. of Supervisors (C.A.4, 1996), 72 F.3d 1191 (same-sex sexual harassment not actionable among heterosexuals); Ashworth v. Roundup Co. (W.D. Wash. 1995), 897 F. Supp. 489; Fleenor v. Hewitt Soap Co. (S.D. Ohio 1994), No. C-3-94-182, 67 Fair.Emp.Prac.Cas. (BNA) 1625, 1995 WL 386793, affirmed on other grounds (C.A.6, 1996),81 F.3d 48 (specifically declining to address the issue of same-sex sexual harassment); Goluszek v. Smith (N.D.Ill. 1988),697 F. Supp. 1452; but, see, e.g., Quick v. Donaldson Co. Inc. (C.A.8, 1996), 90 F.3d 1372; Williams v. Dist. of Columbia (D.D.C. 1996), 916 F. Supp. 1; Johnson v. Community Nursing Serv. (D. Utah 1996), 932 F. Supp. 269; Tietgen v. Brown's WestminsterMotors, Inc. (E.D.Va. 1996), 921 F. Supp. 1495; Equal Emp.Opportunity Comm. v. Walden Book Co., Inc. (M.D.Tenn. 1995),885 F. Supp. 1100, 1103-1104; see, also, Hopkins v. Baltimore Gas Elec. Co. (C.A.4, 1996), 77 F.3d 745 (Niemeyer, J., concurring);Baskerville v. Culligan Internatl. Co. (C.A.7, 1995),50 F.3d 428, 430. The issue may be resolved, as a petition for writ of certiorari is currently pending before the United States Supreme Court in Oncale, supra.^** We decline to address the issue, as it is unnecessary to our resolution of the instant appeal.

Accordingly, we turn to appellant's cause of action. In order to sustain his quid pro quo claim, Schmitz must demonstrate (1) that the employee was a member of a protected class, (2) that the employee was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors, (3) that the harassment complained of was based on gender, and (4) that the employee's submission to the unwelcome advances was an express or implied condition for receiving job benefits or that the employee's refusal to submit to the supervisor's sexual demands resulted in a tangible job detriment. Kauffman v. AlliedSignal, Inc., Autolite Div. (C.A.6, 1992), 970 F.2d 178,185-186. Of Schmitz's many allegations, only those involving Keller's statement that Schmitz "might have to do something" in order to obtain a schedule change manifests any potential as quid pro quo sexual harassment.

Having discussed the "protected class" element, above, we move to the next element of the cause of action. The plaintiff testified on deposition that his supervisor told him that he "might have to do something" for a schedule change. Further, Keller allegedly told Schmitz that he found Schmitz attractive and that he wanted to perform fellatio on him, discussed in explicit terms his homosexual lifestyle, and left an offer to engage in homosexual acts lingering. This testimony supports a finding that Keller made sexual advances toward Schmitz. Clearly, these alleged propositions for sexual favors were based on gender.

The remaining fourth element raises the critical issue on this appeal. The issue is whether Keller's alleged quid pro quo offer creates liability in the absence of any effect on the terms and conditions of Schmitz's employment. Again, the courts which have examined this issue offer vastly divergent views. The Ninth Circuit Court of Appeals in Nichols v. Frank (C.A.9, 1994), 42 F.3d 503, stated at 513:

"In sum, we conclude that a supervisor's intertwining of a request for the performance of sexual favors with a discussion of actual or potential job benefits or detriments in a single conversation constitutes quid pro quo sexual harassment." AccordFowler v. Sunrise Carpet Indus., Inc. (N.D.Ga. 1996),911 F. Supp. 1560; Prescott v. Indep. Life Acc. Ins. Co. (M.D.Ala. 1995),878 F. Supp. 1545, 1550-1551.

Appellant, though citing no authority, claims that this view controls his appeal.

However, a number of courts require evidence that the employee's reaction to the proposed quid pro quo arrangement affected a term or condition of employment. In Highlander v.K.F.C. Natl. Mgt. (C.A.6, 1986), 805 F.2d 644, 649, the Sixth Circuit Court of Appeals upheld judgment in favor of the defendants despite proof that defendant's agent requested sexual intercourse in exchange for a promotion. Therein, the court stated:

"[T]he record was totally devoid of any evidence tending to demonstrate that plaintiff was denied a job benefit or suffered a job detriment as a result of her failure to engage in the activities suggested by Altieri [the alleged harasser]." See, also, Rose v. Figgie Internatl. (Dec. 7, 1990), C.A.6 No. 90-1381, unreported, 1990 WL 197824 (grant of summary judgment proper where plaintiff failed to produce evidence demonstrating work-related detriment).

This position is reflected by many of the courts which have addressed quid pro quo sexual harassment under different elemental paradigms. The Seventh Circuit requires a quid pro quo plaintiff to prove that "the employee's reaction to the supervisor's advances affected a tangible aspect of her employment." Bryson v. Chicago State Univ. (C.A. 7, 1996),96 F.3d 912, The District of Columbia Circuit Court of Appeals, explaining the quid pro quo cause of action, stated in Gary v. Long (C.A.D.C. 1995), 59 F.3d 1391, at 1395:

"[T]he gravamen of a quid pro quo claim is that a tangible job benefit or privilege is conditioned on an employee's submission to sexual black-mail and that adverse consequences follow from the employee's refusal." See, also, Saulpaugh v.Monroe Community Hosp. (C.A.2, 1993), 4 F.3d 134, 142 ("Under a quid pro quo theory, the plaintiff-employee must establish that she was denied an economic benefit either because of gender or because a sexual advance was made by a supervisor and rejected by her."); Sauers v. Salt Lake Cty. (C.A.10, 1993), 1 F.3d 1122;Hartleip v. McNeilab, Inc. (C.A.6, 1996), 83 F.3d 767 (adverse employment decision resulting from a spurned sexual advance required under Michigan statutory analog).

The Equal Employment Opportunity Commission's Guidelines on Sexual Harassment, Section 1604.11(a), Title 29, C.F.R., while not binding, support this interpretation and are persuasive authority on issues of analogous federal law. See Griggs v. DukePower Co. (1971), 401 U.S. 424, 433-434, 91 S. Ct. 849, 854-856,28 L. Ed. 2d 158, 165-166. The guidelines state:

"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual * * *."

No Ohio court has resolved the issue. One Ohio court of appeals has apparently adopted the view that there must be an actual effect on the terms and conditions of employment:

"[Q]uid pro quo harassment [occurs] where the employee's submission to or rejection of unwelcome sexual conduct is usedas the basis for promotion or other employment decisions * * *." (Emphasis added.) Western-Southern Life Ins. Co. v. Fridley (1990), 69 Ohio App. 3d 190, 194, 590 N.E.2d 325, 328.

We hold that the plaintiff must suffer an actual effect on his terms of employment rather than suffer mere threats. As the United States Supreme Court has indicated, Title VII protects employees against discriminatory practices affecting the terms, conditions or privileges of employment. Meritor Sav. Bank, FSBv. Vinson (1986), 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49. For example, in the related "hostile work environment" context, no amount of harassment is actionable until it affects the terms and conditions of employment.

"When 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,' Title VII is violated." (Citations omitted.) Harris v. ForkliftSys., Inc. (1993), 510 U.S. 17, 21, 114 S. Ct. 367, 370,126 L. Ed. 2d 295, 301, quoting Meritor Sav. Bank, FSB, supra,477 U.S. at 65, 67, 106 S.Ct. at 2405, 2405-2406,91 L.Ed.2d at 58-59, 60. We hold that the same requirement exists in a quid pro quo claim under R.C. Chapter 4112.

Accordingly, the grant of summary judgment was proper because the record fails to contain evidence demonstrating that Schmitz's schedule was actually conditioned upon his compliance with Keller's alleged advances. In fact, the record suggests only that Schmitz's terms of employment were not so conditioned. Further, appellant conceded that after the alleged incident, Keller took no action against him. BEF produced evidence that Keller could not have unilaterally changed Schmitz's schedule. BEF also demonstrated that Schmitz's schedule was the result of disciplinary action taken against him pursuant to company policy.

This case presents a plaintiff unaffected by the alleged harassment. While we recognize the discomfort Keller's alleged advances may have caused Schmitz, Schmitz made no effort to terminate the discussions of homosexuality and faced no change in his terms and conditions of employment. BEF promptly investigated the alleged harassment and brought immediate resolution to appellant's claims. Thus, because Schmitz failed to adduce evidence supporting the fourth element of his quid pro quo cause of action, the trial court properly granted summary judgment.

II Appellant's remaining assignment of error states:

"The trial court erred by concluding that defendant-appellee Bob Evans Farms, Inc. is not responsible for the actions of defendant-appellee Jaymz Keller under the theory ofrespondeat superior as that theory is applied to the law governing quid pro quo sexual harassment."

Our disposition of appellant's first assignment of error renders this assignment of error moot. No cause of action lies against BEF, and we affirm the trial court's grant of summary judgment.

Judgment affirmed.

PATTON, J., concurs.

KARPINSKI, J., concurs in judgment only.

^** Reporter's Note: The court granted the petition and decided that same-sex sexual harassment is actionable. Oncale v.Sundowner Offshore Serv., Inc. (1998), ___ U.S. ___,118 S. Ct. 998, 140 L. Ed. 2d 201.