Ellis v. Jungle Jim's Market, Inc.
44 N.E.3d 1034
Ohio Ct. App.2015Background
- Dana Ellis, hired as a bagger at Jungle Jim’s in Oct. 2012, was transferred to the seafood department in Feb. 2013 under manager Juliano Caldas.
- Ellis alleged that beginning March 2013 Caldas made frequent unwelcome sexual comments and gestures (explicit sexual talk, simulated licking, exposure request, leg rubbing) and that she repeatedly told him to stop.
- On May 4, 2013 Ellis reported the conduct to store managers; Caldas denied it, received a verbal warning and a written counseling entry conditioning termination on further incidents; Ellis stayed in seafood but her schedule was adjusted so she was not alone with Caldas.
- Ellis filed an OCRC complaint May 28, 2013; shortly thereafter Jungle Jim’s transferred her back to bagging (no loss of pay/hours) and later she left employment.
- Ellis sued for hostile-work-environment sexual harassment, vicarious liability of employer, and retaliation; the trial court granted summary judgment for defendants; the court of appeals reversed and remanded, finding genuine issues of material fact on harassment, employer liability, and retaliation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether supervisor (Caldas) created a hostile work environment | Ellis: repeated daily explicit sexual conduct/comments made work objectively and subjectively hostile and interfered with her work | Caldas: plaintiff’s conduct (e.g., accepting a ride), failure to report personally, coworkers’ lack of corroboration undercut claim | Reversed: genuine factual disputes exist whether conduct was sufficiently severe/pervasive to create a hostile environment |
| Whether employer (Jungle Jim’s) is vicariously liable under Faragher/Ellerth | Ellis: employer’s written policy was outdated, training/investigation was inadequate, and employer failed to promptly and effectively correct harassment | Jungle Jim’s: had a harassment policy, investigated promptly, issued warning to Caldas and altered schedule to avoid one-on-one contact | Reversed: genuine issues whether employer exercised reasonable care to prevent/correct harassment (first Faragher/Ellerth prong) — summary judgment inappropriate |
| Whether a tangible employment action was taken by the harasser (affecting vicarious liability) | Ellis: reassignment back to bagging was effectively a demotion and adverse | Jungle Jim’s: transfer was a lateral move by management (not by harasser), no tangible employment action by Caldas | Held: transfer was not shown to be a tangible action taken by the harasser; employer may assert Faragher/Ellerth defense but failed to prove it at summary judgment |
| Whether transfer back to bagging constituted unlawful retaliation | Ellis: filing OCRC complaint was protected activity; transfer immediately after employer received complaint was materially adverse and causally connected | Jungle Jim’s: transfer was legitimate nonretaliatory effort to protect Ellis from further harassment | Reversed: genuine issues on whether transfer was materially adverse and whether employer’s stated reason was pretextual (close temporal proximity and other facts support inference of retaliation) |
Key Cases Cited
- Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169 (Ohio 2000) (defines quid pro quo and hostile-environment harassment under Ohio law)
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (employer vicarious liability for supervisor harassment and affirmative defense framework)
- Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) (companion to Faragher on employer affirmative defense)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (objective perspective for hostile-work-environment inquiry)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (severity/pervasiveness and objective/subjective components)
- Thornton v. Fed. Express Corp., 530 F.3d 451 (6th Cir. 2008) (practical application of employer policy effectiveness under Faragher/Ellerth)
- Clark v. United Parcel Serv., Inc., 400 F.3d 341 (6th Cir. 2005) (evaluation of policy effectiveness and employer duties)
- Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir. 2009) (harassment need only make job more difficult; employer compliance factors)
- Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715 (Ohio Ct. App.) (discussion of tangible employment action and supervisor causation)
- McCombs v. Meijer, Inc., 395 F.3d 346 (6th Cir. 2005) (employer response to harassment may present jury question)
- Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (6th Cir. 2008) (analysis of pretext and temporal proximity in retaliation claims)