Fry v. Wheatland Tube, L.L.C.
135 N.E.3d 420
Ohio Ct. App.2019Background
- Howard Fry worked as a shipper at Wheatland Tube’s electrical shipping dept. from 2003; James Hoffman was the "shipping leader" who performed the same work and directed shippers but lacked authority to hire, fire, discipline, or unilaterally change pay or schedule.
- Fry alleged repeated same-sex sexual harassment by Hoffman from 2004–2008 (sexual comments, exposing penis, grabbing, rubbing, other sexualized conduct) and reported the conduct to foreman John Parks starting in 2004; Parks documented some complaints but no investigation or effective remedial action occurred.
- Wheatland had an anti-harassment policy, annual training, and an attendance policy; Hoffman had been disciplined in 2007 for harassment of a temporary worker.
- Fry accrued attendance violations under Wheatland’s policy (May 2007, Oct 2007, Feb 2008) and was terminated on Feb 7, 2008 for a third group II offense.
- Fry sued (hostile work environment sexual harassment under R.C. Chapter 4112, negligent retention/supervision, retaliation/wrongful discharge, intentional infliction of emotional distress). After refiling, the trial court granted summary judgment for defendants; on appeal the court affirmed in part and reversed/remanded in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Hoffman a supervisor for purposes of harassment liability? | Hoffman had the title "shipping leader," directed shippers, calculated incentive pay and thus functioned as a supervisor. | Hoffman lacked authority to take tangible employment actions (hire, fire, discipline, change salary), so he is not a "supervisor." | Hoffman was not Fry's supervisor as a matter of law (no power to take tangible employment actions). |
| Did Wheatland permit a hostile work environment sexual harassment (same-sex) under R.C. 4112? | Hoffman’s repeated sexual touching/comments, Fry’s reports, and surrounding evidence show harassment was unwelcome, because of sex, severe/pervasive, and employer knew or should have known. | Hoffman’s conduct was crude but not shown to be "because of sex" (he harassed both men and women and was married), so no actionable sex-based discrimination. | Reversed as to this claim: genuine issues of material fact exist on whether conduct was "because of sex," severity/pervasiveness, and employer knowledge; summary judgment improper. |
| Was Fry’s termination retaliatory/wrongful discharge? | Termination closely followed Fry’s threats to get a lawyer about harassment; other employees were treated more leniently, suggesting pretext. | Termination followed application of a neutral attendance policy; records show valid progressive discipline culminating in a third offense warranting termination. | Affirmed for defendant: termination was consistent with attendance policy; Fry failed to raise a triable issue of retaliation/wrongful discharge. |
| Negligent retention/supervision and intentional infliction of emotional distress (IIED) claims | Employer knew of complaints and failed to act; negligent retention and supervisory failures proximately caused Fry’s emotional/psychological injury; Hoffman’s conduct was extreme/outrageous and caused serious distress. | Employer acted under policies and exercised discretion; conduct may be offensive but not shown to be discriminatory or sufficiently extreme to support IIED; failure to show causation/serious distress during employment. | Reversed as to negligent retention/supervision and IIED: genuine issues of material fact exist (knowledge, incompetence, causation, severity/outrageousness); these claims proceed to trial. |
Key Cases Cited
- Genaro v. Cent. Transp., Inc., 84 Ohio St.3d 293, 703 N.E.2d 782 (Ohio 1999) (supervisors/managers may be individually liable under Ohio anti-discrimination law)
- Hampel v. Food Ingredients Specialties, Inc., 89 Ohio St.3d 169, 729 N.E.2d 726 (Ohio 2000) (elements for hostile work environment sexual harassment under Ohio law)
- Vance v. Ball State Univ., 570 U.S. 421 (U.S. 2013) (defining "supervisor" for harassment law as one empowered to take tangible employment actions)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (U.S. 1998) (Title VII permits same-sex harassment claims; guidance on proving harassment "because of sex")
- Faragher v. City of Boca Raton, 524 U.S. 775 (U.S. 1998) (objective/subjective hostile-work-environment standard)