JAMES S. GWIN, District Judge.
Plaintiff Marie K. Viglianco brings suit against her prior employer, Defendant Athenian Assisted Living Ltd. ("Athenian"), as well as its employees Ron Livingston and Edmond Gates (collectively, "Defendants"). Plaintiff brings sex discrimination claims, sex discrimination claims based on pregnancy, intentional infliction of emotional distress claims, negligent hiring and retention claims, and retaliation claims against Defendants.
Defendants move for summary judgment as to all counts.
Plaintiff Marie K. Viglianco worked at Athenian Assisted Living, Ltd. ("Athenian") as a Licensed Practical Nurse from April 2013 to December 2013.
Susan Durichko was Plaintiff's direct supervisor. Durichko acted as Athenian's director of nursing.
Defendant Edmund Gates acts as the administrator of Athenian, and oversees Athenian's business operations.
Plaintiff identifies three incidents where Defendant Livingston engaged in alleged improper conduct.
Plaintiff testifies that Livingston approached her in the first three months that Plaintiff worked at Athenian, and said "let me just say that the nurses here are very pretty . . . but you — you are just something else. You are unbelievably beautiful."
Plaintiff testified that she reported the incident to Durichko. Plaintiff testified that Durichko responded: "That's usually his normal behavior. You can't look too much into it. It's — it's nothing."
On the two other occasions at issue, Livingston approached Plaintiff and told her that her "hair looked absolutely amazing," and that she should wear it like that more often.
Aside from these direct incidents of alleged harassment against Plaintiff, Plaintiff complains of witnessing the sexual harassment of Marie Barhouma, another Athenian employee who has a pending sex harassment case against Defendants.
Defendant Livingston denies making sexual comments to Plaintiff.
Plaintiff found out that she was pregnant in April 2013.
Plaintiff alleges that at some point during her employment at Athenian, she was passed over for a full-time position.
Towards the end of December, Plaintiff stopped taking shifts at Athenian. Plaintiff states that she let Athenian know "that I would intend on taking six weeks off, although I would establish contact before that if it could be arranged for me to have returned sooner than that."
Towards the end of January 2014, Plaintiff says she tried to contact Durichko through text messages and phone calls. Plaintiff claims she asked Durichko to schedule Plaintiff for work in February or March, 2014.
By contrast, Defendants maintain that Plaintiff first contacted Durichko in mid-February, 2014, asking to be put on February's schedule.
Defendants state that Athenian did not need additional staffing when Plaintiff sought to be added to the schedule.
Plaintiff brought eight claims against Defendants: (1) sex discrimination in violation of Ohio Revised Code Section 4112.02; (2) sex discrimination based on pregnancy in violation on Ohio Revised Code Section 4112.02; (3) retaliation under Ohio Revised Code Section 4112; (4) intentional infliction of emotional distress; (5) negligent hiring and retention; (6) sex discrimination in violation of Title VII; and (7) retaliation in violation of Title VII; (8) violation of the Pregnancy Discrimination Act, 42 U.S.C. § 2000.
Defendants ask for summary judgment on all claims.
Under Federal Rule of Civil Procedure 56, "[s]ummary judgment is proper when `there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'"
The moving party may also meet its burden under Rule 56 by "demonstrating the absence of evidence to support one of the essential elements of the nonmoving party's claim."
Plaintiff brings a sex discrimination claim based on pregnancy under Ohio Revised Code § 4112.02.
A claim of discrimination on the basis of pregnancy "must be analyzed in the same manner as any other sex discrimination claim brought pursuant to Title VII."
Like any Title VII case, a pregnancy discrimination claim in which the plaintiff does not have direct evidence of the discrimination is analyzed under the McDonnell Douglas
Nobody disputes that Plaintiff Viglianco was both pregnant, and qualified for her job. Plaintiff complains of two particular employment decisions: the failure to hire her as a full time nurse, and the failure to assign her shifts after Plaintiff took time off for the pregnancy. The Court considers these both to be adverse employment decisions.
However, Plaintiff has not met her burden in the failure to hire pregnancy discrimination claim. Plaintiff has not established a nexus between her pregnancy and the failure to be hired full time. She has not established that Durichko knew of Plaintiff's pregnancy at the time that the hiring decision was made. Moreover, she has not provided any direct or circumstantial evidence related to the hiring process. Plaintiff relies entirely on her own testimony, which merely establishes that, at some point, Durichko learned of the pregnancy and, at some point, another nurse received a full-time job, not her. This is inadequate to support a prima facie case for pregnancy discrimination.
On the other hand, Plaintiff's pregnancy discrimination claim related to the failure to reschedule her in February and March 2014 survives. There is, arguably, a nexus between the pregnancy and the failure to re-schedule. Plaintiff had fairly regular, if variable, shifts in the preceding nine months before taking time off to have her child. There is no indication that her shifts would have changed had it not been for the pregnancy.
Defendant offers that Plaintiff was not re-scheduled because Athenian did not have staffing needs at the time that Plaintiff was ready to return. However, there are disputed facts as to how far in advance of the scheduling Plaintiff contacted Durichko. Moreover, it is undisputed that each month's schedule was made at some point in the preceding month. A jury could reasonably find that it was a "mere pretext" to say there were no staffing needs when future months had not been scheduled yet. The Court denies Defendants' motion as to pregnancy discrimination.
Plaintiff brings a sex discrimination claim based on hostile work environment under Ohio Revised Code Chapter 4112. Federal case law interpreting Title VII applies in determining whether employment practices are discriminatory under Ohio Rev. Code Chapter 4112.
To establish a hostile work environment claim, a plaintiff must show that (1) she is a member of a protected class; (2) she was subjected to unwanted harassment; (3) the harassment was based on her membership in the protected class; (4) the harassment unreasonably interfered with her work performance, creating a hostile work environment; and (5) the employer is liable.
A hostile work environment claim can survive only 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."
Offhand comments and isolated incidents, unless extremely serious, are not to discriminatory changes in the "terms and conditions of employment."
Plaintiff fails to meet her burden in establishing a prima facie case of sex discrimination. Viewing all facts in the light most favorable to the Plaintiff, Plaintiff has identified three sexual harassment occurrences by Livingston. First, an incident where Livingston approached her in a "lustful" manner in a hallway and said "Let me just say that the nurses here are very pretty . . . yes they are . . . but you . . you are just something else. You are unbelievably beautiful."
Defendants brush off these incidents as "innocuous" or mere "compliments."
Plaintiff fails the fourth prong of a prima facie case for sex discrimination. She has not shown that the harassment unreasonably interfered with her work performance, creating a hostile work environment. Plaintiff has not been able to show a consistent pattern that rises beyond "isolated incidents." She fails to demonstrate that Livingston's behavior created an objectively severe or pervasive environment of intimidation. She fails to demonstrate that Livingston's actions altered the conditions of Plaintiff Viglianco's employment or hindered her ability to conduct her job.
The Court denies Plaintiff's motion as to sex discrimination, and grants Defendants'.
The Ohio elements of a negligent hiring or retention claim are: "(1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiff's injuries."
Here, Plaintiff does not offer any facts to support a claim of negligent hiring. However, Plaintiff does offer testimony to support a claim of negligent retention. Although disputed, Plaintiff testifies that she reported Livingston's initial comment to her immediate supervisor, Durichko. Moreover, Plaintiff highlights that her colleague, Marie Barhouma had complained directly to Athenian's administrator, Edmond Gates, on four separate occasions. Plaintiff contends that Athenian took no corrective action after these reports.
Defendants respond that "there is no evidence supporting the contention that Viglianco reported conduct sufficiently severe or pervasive as to warrant an investigation on the part of the employer into Livingston's behavior." But Plaintiff need not meet the sex discrimination standard to make out a prima facie case of negligent retention. Rather, the Court instead consider Athenian's knowledge, Livingston's "incompetence" and misconduct, and proximate causation of Viglianco's injuries, if any.
There remain genuine issues of material fact as to the elements of negligent retention. A court considering a motion for summary judgment may not weigh evidence or make credibility determinations.
Ohio Revised Code § 4112.02(I) and Title VII prohibit retaliatory actions against employees who oppose, report, or participate in investigations involving conduct that allegedly violates Ohio Revised Code § 4112.01(I) or Title VII.
The burden for establishing a retaliation claim under Ohio Revised Code § 4112 is identical to the burden for establishing retaliation under the federal employment laws.
A plaintiff's burden to establish a prima facie case of retaliation "is not onerous."
Here, Defendants are not entitled to summary judgment as to retaliation. Plaintiff alleges in her complaint that "[b]ecause Plaintiff complained that Mr. Livingston sexually harassed Plaintiff, Defendants terminated Plaintiff's employment with Athenian." While the complaint to Durichko about Livingston, and the failure to be scheduled after her maternity leave were six months apart, the claim remains viable.
Plaintiff also brings an Ohio state law claim against Defendants for intentional infliction of emotional distress. To recover on an intentional infliction of emotional distress claim, Plaintiff must prove four elements:
There remain material disputes as to Livingston's and Athenian's course of conduct. Indeed, Defendant Livingston denies making any sexual comments towards Plaintiff. However, even taking Plaintiff's account of events as true, a reasonable jury could not conceivably find Livingston's and Athenian's conduct to be "outrageous." Intentional infliction of emotional distress sets a high bar, and Plaintiff here has not met it.
The Court grants Defendants' motion for summary judgment as to intentional infliction of emotional distress.
Finally, Defendants move for summary judgment as to claims against Defendant Edmond Gates in his individual capacity. The remaining claims are pregnancy discrimination, negligent retention, and retaliation. As Defendants point out, Plaintiff has failed to put forward any evidence that Gates could be liable for pregnancy discrimination or retaliation. Durichko alone had the power to hire and fire Plaintiff.
However, evidence has been submitted that Gates was Ron Livingston's supervisor.
The Court grants Defendants' motion for summary judgment as to the claim against Gates for pregnancy discrimination and retaliation. The Court denies Defendants' motion as to the claim against Gates for negligent retention.
For the foregoing reasons, the Court
IT IS SO ORDERED.