Messer v. Summa Health Sys.
105 N.E.3d 550
Ohio Ct. App.2018Background
- Messer was hired as an interventional radiology technologist and terminated within Summa’s 90‑day probationary period after ~1 month on the job.
- Summa required technicians to change into hospital scrubs in a unisex locker room (with a lockable bathroom inside); Messer refused to comply, wore her own scrubs and sometimes changed in a public restroom.
- Messer reported (verbally, not in writing) two incidents where she walked in on or was walked in on while changing; she claimed she complained to a team leader (L.M.).
- Summa supervisors cited discrepancies in Messer’s resume, incomplete mandatory training courses, and a patient hematoma incident as bases for counseling and termination; Messer disputed aspects of those bases.
- Messer sued under Ohio R.C. 4112.02 for gender discrimination (hostile work environment sexual harassment), retaliatory discrimination, and aiding/abetting; the trial court granted summary judgment for Summa and Messer appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hostile‑work‑environment sexual harassment (gender‑based) | Mandatory use of a unisex locker room invaded privacy of women and was discriminatory toward Messer as a woman | Locker room policy applied equally to men and women; conduct was gender neutral and not severe or pervasive sexual harassment | Summary judgment for Summa: Messer failed to show harassment "because of sex" (no evidence she was singled out based on gender) |
| Retaliation (R.C. 4112.02(I)) | Messer complained to L.M. about locker room and was then terminated in retaliation | Summa: Messer cannot show decisionmaker knew of any protected complaint; termination was for legitimate non‑retaliatory reasons | Summary judgment for Summa: genuine dispute only whether Messer complained to L.M.; but Messer failed to show decisionmaker (S.B.) had knowledge necessary for a prima facie retaliation claim |
| Aiding/abetting (R.C. 4112.02(J)) | Summe’s employees colluded to terminate Messer based on discriminatory motives | No underlying unlawful discrimination established, so no aiding/abetting liability | Summary judgment for Summa: claim fails because Messer did not prove an underlying unlawful discriminatory act |
| Trial court’s exclusion of Messer’s affidavit and reliance on depositions | Messer contended the court improperly struck her affidavit and ignored deposition context, prejudicing her | Summa maintained the affidavit contradicted deposition testimony and any omission of deposition context was Messer’s responsibility | Court found striking the entire affidavit was error but harmless: affidavit largely duplicated deposition testimony; trial court did consider the depositions Messer submitted |
Key Cases Cited
- State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217 (trial court’s striking of affidavits reviewed for abuse of discretion)
- Byrd v. Smith, 110 Ohio St.3d 24 (affidavit contradicting prior deposition cannot defeat summary judgment without adequate explanation)
- Hampel v. Food Ingredients Specialties, 89 Ohio St.3d 169 (elements for hostile‑environment sexual harassment under R.C. 4112.02)
- Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (Title VII harassment must be "because of sex")
- Harris v. Forklift Sys., 510 U.S. 17 (standard for hostile work environment severity/usefulness of objective‑subjective analysis)
- Grafton v. Ohio Edison Co., 77 Ohio St.3d 102 (de novo standard of review on summary judgment appeals)
- Dresher v. Burt, 75 Ohio St.3d 280 (burden‑shifting framework for summary judgment in Ohio)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Civ.R. 56 summary judgment standard)
- Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm., 66 Ohio St.2d 192 (federal Title VII law generally applicable to R.C. Chapter 4112)