Janice COURTNEY, Plaintiff-Appellant, v. LANDAIR TRANSPORT, INC., Defendant-Appellee, 227 F.3d 559

MERRITT, J., delivered the opinion of the court, in which MOORE, J., joined. BOGGS, J. (pp. 567-69), delivered a separate opinion concurring in part and dissenting in part. OPINION MERRITT, Circuit Judge.

In this sexual harassment case brought by plaintiff Janice Courtney in diversity under Ohio law, there are four issues on appeal: (1) whether her employer, Lan-dair Transport, Inc., a trucking corporation, discriminated against her by creating a hostile work environment and then (2) retaliated against her for complaining about the conduct; (3) whether defendant’s action violated Ohio’s public policy against discrimination and sexual harassment in the workplace; and (4) whether defendant’s actions resulted in intentional infliction of emotional distress. The court below granted

summary judgment for defendant on all issues. We conclude that there is a material dispute of fact as to issues two and three and therefore reverse and remand for further proceedings. I. Facts Due to the parties’ disagreement on what the record shows, we have included citations to sources in the record from which we compiled our statement of facts.

During her employment with Landair, plaintiff alleges that she was subjected to a hostile work environment based both upon the conduct of supervisors and the conduct of two other truck drivers, Virgil Mizner and James Jarrett, who were independent contractors for defendant Landair. Her problems began shortly after she began working for Landair in March 1996. She alleges that on several occasions James Jarrett stuck his tongue out at her making sexual gestures and suggested that plaintiff should ride with him in his truck.

If she did so, Jarrett remarked that he would hire someone else to do the driving because he and Courtney would be “busy in the back” of the truck. (Courtney Dep. at 187-93; J.A. at 215-21; Letter from Courtney to Howard, Zeroski of 5/5/96, at 2; J.A. at 150.) In addition, defendant’s Columbus terminal manager approached plaintiff early in her employment to inform her that she was not appropriately dressed and that she was distracting other employees by showing too much cleavage. (Courtney Aff. ¶ 5; J.A. at 146.) In response to these incidents, plaintiff wrote a letter dated May 5, 1996, to Gerald Howard, one of Landair’s vice-presidents, and Craig Zeroski, who ran the Columbus terminal, complaining to them about the reprimand she received and a “double standard” she believed existed in the treatment of men and women at work. (Letter from Courtney to Howard, Zeroski of 5/5/96, at 1; J.A. at 149.) In this letter, she complained that office personnel copied offensive and lewd pictures as jokes for male drivers and also complained about Jarrett’s offensive tongue gestures and remarks that she should be his driving partner so that they could have a sexual relationship. (Letter from Courtney to Howard, Zeroski of 5/5/96, at 2; J.A. at 150.) Plaintiff ended her letter by stating, “I’m not going to take the harassment from drivers, etc. anymore....

I’m a good asset to this company and have a good reputation as far as my job performance!” (Letter from Courtney to Howard, Zeroski of 5/5/96, at 3; J.A. at 151.) No action was taken by defendant Landair at this time. Plaintiff also alleges that she experienced harassment from Virgil Mizner.

In her deposition, she describes an occasion, although no date is given, when she was walking with Mizner and her partner, Sam Helber, in a parking lot and Mizner allegedly bumped his whole body into plaintiff, continually bumping her breast. (Courtney Dep. at 197-198; J.A. at 222-23.) It was not until later that plaintiff felt that his actions were intentional. (Courtney Dep. at 198; J.A. at 223.) She describes another incident that occurred in July 1996, in which Mizner approached plaintiff from behind and tried to touch her left breast. (Courtney Dep. at 198-207; J.A. at 223-31.) After plaintiff backed away, Mizner asked, “What’s the matter?

You’re not going to let me touch it?” (Courtney Dep. at 208; J.A. at 232.) She further alleges that in October 1996, when plaintiff was alone in the break room, Miz-ner tugged on her shirt and asked if she was mad at him. (Courtney Dep. at 215-16; J.A. at 233-34.) Finally, plaintiff also alleges that in November 1996, at the Columbus terminal, in the break room, Miz-ner crept up behind her, blew air in her ear, and laughed at her.

Plaintiff responded by yelling, “Virgil, leave me the f — k alone!” Other drivers in the room laughed and remarked aloud, “Getting kind of testy, aren’t we?” (Courtney Dep. at 218; J.A. at 236.) Due to the incidents of harassment and management’s alleged refusal to address plaintiffs complaints, plaintiff hired a lawyer. On December 4, 1996, plaintiffs counsel wrote a letter to the defendant management in Columbus asking it to stop the harassment of her client.

That same day, the terminal manager of defendant’s Indianapolis terminal, Dave Blevins, wrote plaintiff a letter. (Letter from Blevins to Courtney of 12/4/96; J.A. at 165.) The letter stated: ... As I told you, [defendant] is committed to maintaining an environment that is free from all forms of harassment, including sexual harassment. This is not always easy to do in the trucking business. As we discussed, it is my intention to confront the individuals that you identified in your letter and make certain that they understand that this type of behavior will not be tolerated by [defendant].

During today’s telephone conversation, I asked you if there were any other individuals and you indicated that there were not. After I have the opportunity to talk to these individuals, I will be back in touch with you.

In the meantime, please contact me immediately if there are any other issues related to this situation that you wish to bring to our attention. (Letter from Blevins to Courtney of 12/4/96; J.A. at 165.) On December 11, 1996, defendant Landair released a memorandum to all owner-operators about Landair’s commitment to a harassment-free environment. (Mem. from Queen, Woods to Owner-Operators of 12/11/96; J.A. at 166.) Defendant states that the timing of the memorandum was designed to address plaintiffs complaints of sexual harassment. (Woods Dep. at 45-46; J.A. at 192.) From the record, it appears that further harassment from Mizner or Jarrett ceased.

Then on January 3, 1997, while plaintiff and Helber were in Columbus waiting to make their run, defendant Landair informed plaintiff and Helber that they were not to return to Seattle because management had decided that another driver should take their route. Plaintiff charges that the assignment change was retaliation for her sexual harassment complaints. Defendant claims it did not pull plaintiff and Helber from their route because of a retaliatory motive, but rather pulled them because of normal holiday interruptions that occur in the trucking business.

Because of her route change, plaintiff sent two communications to N. Jeffrey Woods, vice president of operations for Landair, complaining of the change. Woods responded by a telephone conference with plaintiff and Helber in which he gave them the option of becoming Indianapolis-based drivers and keeping the route to Seattle.

On January 12, 1997, plaintiff wrote a letter to Dave Blevins, the Indianapolis terminal manager, protesting the treatment she and Helber received the week earlier and indicated that she believed the treatment by defendant was retaliatory in nature. (Letter from Courtney to Blevins of 1/12/97, at 6-7; J.A. at 78-79.) After detailing the route change, plaintiff wrote in part: Makes you wonder if all the so called misunderstandings weren’t retaliation or pay back.

The[re] is no way you could understand, or that I could beg[i]n to convey the Anger, Rage, or Hostility, along with the Headaches, upset stomachs I’ve been dealing with [sic]. Not to mention the Resentment I feel towards Landair Management. You all keep saying your [sic] glad they drive for owner-op[erator]s. Well there’s one important thing you all seem to forget. I’m a Company Driver. And as a Company Driver, I depended on the Management of Lan-dAir [sic] to protect me from the unwanted actions from the 2 old men I reported. Who by the way are old enough to be my father [sic].

The thought of them is sickening and disgusting. Instead, my complaints went unanswered. So for nine months I endured the crap. Yes, I’m angry. I need to have this problem taken care of be for [sic] it gets out of hand and I end up hurting someone. Sincerely, Janice Courtney I’ve held my tongue for almost a year. NO More. (Letter from Courtney to Blevins of 1/12/97, at 6-11; J.A. at 78-83.) Blevins forwarded the letter to Woods and after reading the letter, Woods terminated plaintiffs employment.

Woods stated in an affidavit that he “became concerned about [plaintiffs] competence to drive [defendant]^ trucks.” (Woods Aff. ¶ 3; J.A. at 84.) Plaintiff operated semi-trucks weighing 80,000 pounds on public roadways and Woods concluded that plaintiff posed a potential risk to the general public. (Woods Aff. ¶¶ 3, 5; J.A. at 84-85.) Additionally, Woods stated that he became concerned that even if plaintiff did not pose a risk to the general public, any accident involving the plaintiff could result in liability if an injured party obtained the January 12 letter in plaintiffs personal file. (Woods Aff. ¶ 4; J.A. at 85.) Woods telephoned plaintiff and informed her that based upon her letter, her “competency as a driver to the company and the public were at risk.” (Woods Aff. ¶ 6; J.A. at 85.) Woods contended that plaintiffs earlier complaints of sexual harassment and retaliation had no bearing on his decision. (Woods Aff. ¶ 5; J.A. at 85.) Following her termination, plaintiff filed this lawsuit.

II. Sexual Harassment Plaintiff brings her claim for sexual harassment due to hostile work environment under Ohio Revised Code § 4112.02, which states that it is an unlawful discriminatory practice: (

A) For any employer, because of the sex ... of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment. Ohio Rev.Code Ann. § 4112.02 (Banks-Baldwin 1999). Sexual harassment claims under Ohio Revised Code § 4112.02 are subject to the same standards applicable to federal harassment claims brought under Title VII. See Little Forest Med. Ctr. v.

Ohio Civil Rights Comm’n, 61 Ohio St.3d 607, 575 N.E.2d 1164, 1167 (1991) (citing Plumbers & Steamfitters Joint Apprenticeship Comm. v. Ohio Civil Rights Comm’n, 66 Ohio St.2d 192, 421 N.E.2d 128, 131 (1981)). For hostile work environment cases, courts distinguish between harassment by supervisors or management and harassment by co-workers. See Fenton v. HiSAN, 174 F.3d 827, 829 (6th Cir.1999); Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803-04 (6th Cir.1994). Plaintiff Courtney alleges both kinds in this case.

First, we will address plaintiffs claim of sexual harassment due to a hostile work environment created by supervisors. Plaintiff claims that management discriminated against her because a terminal manager cautioned her as to her inappropriate attire in the workplace. A manager’s warning, without more, that plaintiffs clothing is inappropriate in the workplace is not sexual harassment. Plaintiff fails to show that the terminal manager’s comments were anything more than a legitimate concern regarding appropriate dress in the workplace.

Plaintiff also errs in claiming that management’s failure to end the co-worker harassment in May 1996 constitutes sexual harassment. In Fenton v. HiSAN, 174 F.3d 827 (6th Cir.1999), a case in which the harassment was committed by a eo-worker, we confronted the same issue as presented by the plaintiff in this case. In Fenton, the plaintiff brought a Title VII action against her former employer alleging liability for hostile work environment sexual harassment by a co-worker. We concluded: ... In Burlington Industries v.

Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998), the Supreme Court again held that an employer’s liability in sexual harassment cases is governed by common law agency principles and specifically adopted section 219(2) of the Restatement (Second) of Agency as setting out the governing principles: “A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: (

a) the master intended the conduct or the consequences, or (

b) the master was negligent or reckless, or (

c) the conduct violated a non-delega-ble duty of the master, or (

d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.” Restatement (Second) of Agency § 219(2) (1985) (emphases added). In Ellerth, the Supreme Court concluded that subsection (d) — and specifically the last clause thereof (“or he was aided in accomplishing the tort by the existence of the agency relation”) — applies in supervisor harassment cases and therefore does not require a showing of negligence or reckless conduct under subsection (

b) in order to bring the case within the supervisor’s “scope of employment.” Hence the Court concluded that employers may be held, subject to certain affirmative defenses, vicariously liable in supervisor sexual harassment cases. See Ellerth, 118 S.Ct. at 2267. But under the Supreme Court’s reasoning in Ellerth, unlike a supervisor, a coworker does not have power or authority emanating from the employer over the victim. Therefore, since the “master” does not normally intend or abet the coworker’s conduct (subsection (a)) or have a nondelegable duty to prevent it in all circumstances (subsection (c)), the liability of the employer in coworker cases is governed by subsection (

b) of section 219(2) of the Restatement (Second) of Agency. The victim of coworker sexual harassment must therefore prove negligence by the employer. See id. This standard is consistent with the negligence standard we have previously employed in coworker harassment cases. In Blankenship v.

Parke Care Centers, Inc., 123 F.3d 868, 872-73 (6th Cir.1997), cert. denied, 522 U.S. 1110, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998), we stated that in coworker cases the standard is based on a “reasonableness” standard: “when an employer responds to charges of coworker sexual harassment, the employer can be liable only if its response manifests indifference or unreasonableness in light of the facts the employer knew or should have known.” Fenton, 174 F.3d at 829.

In this case, just as in Fenton and Blankenship, plaintiff must show that the defendant knew or should have known of the harassment and failed to take appropriate remedial action. See id. The record shows that defendant took remedial action in December 1996 to address plaintiffs allegations by issuing a memorandum to all owner-operators reiterating Landair’s harassment free work environment policy, at which point all harassment towards plaintiff ceased. Plaintiff does not dispute this fact. Instead, plaintiff alleges that defendant knew of the harassment as early as May 1996, but failed to do anything to stop it.

She offers as evidence the letter she wrote on May 5, 1996, to Gerald Howard, a vice-president of the defendant, Craig Zeroski, the Columbus terminal manager, and others in which she aired several complaints. The content of the May 5 letter does not place defendant on notice of Jarrett’s and Mizner’s harassment. Plaintiff begins her May 5 letter by defending herself and complaining about a double standard she perceived as a result of the reprimand she received regarding more appropriate work clothing.

She then complains about several loose sexual references made around the terminal, some of which were directed towards her specifically, but she fails to name the harasses or ask the defendant to do anything in particular about her complaints. She ends her letter again defending her job performance. That was not sufficient to put management on notice that plaintiff wanted it to intervene to stop the coworker harassment.

Plaintiff also offers as evidence another letter, dated August 10, 1996, sent to Zeroski, the Columbus terminal manager, in which she compiled three logged entries describing more sexual references directed towards her, but again never asked defendant to address the problem. Again, because this correspondence is less than clear as to its purpose, it does not constitute notice to defendant. It was not until December 4, 1996, when defendant received the lawyer’s letter asking defendant to stop the harassment, that defendant had notice of the harassment.

That same day defendant telephoned plaintiff to discuss her complaints and sent a letter to her detailing their conversation. It was at this point that defendant issued the memorandum to all owner-operators reemphasizing Landair’s anti-harassment policy. With this action, the record shows that all harassment ceased. We agree with the court below that, taking the evidence in the light most favorable to plaintiff, the defendant’s conduct was not negligent or indifferent to plaintiffs situation. III. Retaliation Plaintiff also brings a retaliation claim under Ohio Revised Code § 4122.02.

In reviewing retaliation claims, Ohio courts look to federal case law. See Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807, 809 (1983). To support a claim for retaliatory discharge, a plaintiff must show that (1) she engaged in protected activity; (2) she was the subject of adverse employment action; and (3) a causal link existed between the protected activity and the adverse action. See Chandler v. Empire Chem., Inc., 99 Ohio App.3d 396, 650 N.E.2d 950, 954 (1994) (citing Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 375 (6th Cir.1984)).

If the plaintiff meets her initial burden in establishing a prima facie case, then the burden shifts to the defendant to give a legitimate non-discriminatory reason for its action. See id. (citing Burrus v. United Tel. Co., 683 F.2d 339, 343 (10th Cir.1982)). If the defendant gives a non-discriminatory reason, then the plaintiff must show that the articulated reason was only a pretext for the adverse action. See id. Plaintiff Courtney demonstrates a dispute of fact concerning defendant’s reason for her termination.

Defendant argues that it did not terminate plaintiff because of her sexual harassment complaints, but maintains that it fired plaintiff for remarks made in her January 12, 1997, letter to management.

Portions of the letter, defendant argues, show that plaintiff was not in a stable frame of mind: “I need to have this problem taken care of be for [sic] it gets out of hand and I end up hurting someone.” (Letter from Courtney to Blevins of 1/12/97 at 10; J.A. at 82.) Defendant argues that it interpreted the letter as indicating that the plaintiff was not fit to drive and that she posed a potential risk to the public because she drove a large, heavy truck that could injure others on the highway.

Defendant also believed that even if plaintiff was fit to drive, defendant could still face liability should she have an accident. Defendant argues that the injured party could use the letter to show that defendant was aware of her problems and failed to address them. Defendant did not make any effort whatever to determine what plaintiff meant by her statement that she might “end up hurting someone,” and never once asked for an explanation of her statement. We find this omission to be evidence of an intent to get rid of plaintiff because of her complaints.

Plaintiffs letter can easily be interpreted as a statement simply that she intended to defend herself if touched, bumped, or grabbed by co-workers. Additionally, at the time of her termination, plaintiff had a three-year safe driving record and no record of violence, instability, or recklessness. From these facts a reasonable fact-finder might conclude that management simply got mad when it read the letter of complaint about her treatment, grew tired of her complaints, and fired her. IV. Public Policy Tort Plaintiff on appeal argues alternatively that the district court wrongly granted

summary judgment for the defendant on plaintiffs state public policy tort claim for wrongful discharge.

The Ohio Supreme Court has held that a plaintiff must prove the following four elements in order to prevail on a claim of wrongful discharge in violation of public policy: (1) a clear public policy existed and was manifested in constitutional, statutory or common law; (2) dismissal of the plaintiff under the circumstances at issue would jeopardize the public policy; (3) the plaintiffs dismissal was motivated by conduct related to the public policy; and (4) the employer lacked an overriding legitimate business justification for the dismissal. See Collins v.

Rizkana, 73 Ohio St.3d 65, 652 N.E.2d 653, 657-58 (1995) (quoting H. Perritt, The Future of Wrongful Discharge Claims: Where Does Employer Self Interest Lie?, 58 U.Cin.L.Rev. 397, 398-99 (1989)). We agree with the court below on its findings of law that a clear public policy against harassment exists and that it could be jeopardized if the court allowed termination of the plaintiff under the circumstances. With regard to the third and fourth elements, though, we part with the court below and agree with plaintiff that the court usurped the role of the fact-finder by deciding on

summary judgment that there was an overriding legitimate justification for plaintiffs discharge. For the reasons stated in

section III above, plaintiff has presented a genuine issue of material fact as to whether she was discharged for her complaints of sexual harassment or for her purported incompetence and instability and defendant’s fear of liability. We therefore reverse the district court’s grant of

summary judgment on this issue. Y. Intentional Infliction of Emotional Distress Last, as to plaintiffs cause of action for intentional infliction of emotional distress, we agree with the court below and find that plaintiff has failed to present sufficient evidence as a matter of law to create an issue of material fact to sustain her claim. We thus affirm the grant of

summary judgment for defendant on plaintiffs claim of intentional infliction of emotional distress. After review of the record below, we reverse the grant of

summary judgment for the defendant on plaintiffs claims of retaliation and the public policy tort of wrongful discharge and remand those claims to the district court for determination by a fact-finder. We affirm

summary judgment for the defendant on plaintiffs claim of sexual discrimination by creation of a hostile work environment and her claim of intentional infliction of emotional distress.