Plaintiff-appellant, Douglas Retterer, appeals from the judgment entry of the Marion County Court of Common Pleas granting the summary judgment motion of defendants-appellees, Whirlpool Corporation (“Whirlpool”), Barney Rowlinson, and Jeffrey Mouser (collectively, “appellees”).
On June 8, 1994, appellees filed an answer and affirmative defenses. Thereafter, appellees filed a motion for summary judgment on August 31, 1995. In support of the motion, appellees included answers to appellees’ first set of interrogatories and various excerpts of appellant’s deposition. Appellant filed a memorandum in opposition, including his own affidavit, to the summary judgment motion on October 4, 1995. Subsequently, appellees filed a reply memorandum. In its judgment entry of November 7, 1995, the trial court granted appellees’ summary judgment motion. In doing so, the trial court found that no weight should be given to the contradictory statements in appellant’s affidavit (as compared to his earlier deposition testimony). It is from this judgment entry that appellant raises two assignments of error.
Assignment of Error No. 1
“The trial court erred by finding no genuine issues as to any material fact remaining to be litigated, in that it failed and refused to consider the affidavit of appellant in determining the motion for summary judgment.”
Appellant maintains that his affidavit is admissible. While appellant acknowledges in his brief that the facts in his affidavit “were in some cases different from those stated in his deposition testimony,” he also asserts that there is no indication of bad faith or sham. Furthermore, appellant contends that his affidavit supplemented the deposition testimony.
In
Turner v. Turner
(1993),
“[W]hen a litigant’s affidavit in support of his or her motion for summary judgment is inconsistent with his or her earlier deposition testimony, summary judgment in that party’s favor is improper because there exists a question of credibility which can be resolved only by the trier of fact.”
Upon our review, we initially note that the trial court made no specific finding of bad faith regarding the submission of the affidavit. Moreover, even if conflicts exist between the two documents, based upon our decision in Grant, the trial court erred in failing to consider appellant’s affidavit in its determination of the summary judgment motion. Appellant’s first assignment of error, therefore, is well taken.
Assignment of Error No. 2
“The trial court erred in determining that summary judgment should be afforded as a matter of law.”
Within this assignment of error, appellant asserts that there are genuine issues of'material fact regarding the causes of action raised in the complaint and, in turn, contends that the trial court erred in granting summary judgment. We will analyze each claim accordingly. First, however, we set forth the standard for granting a summary judgment motion.
Civ.R. 56(C) provides that a motion for summary judgment is appropriate when:
“(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977),50 Ohio St.2d 317 , 327,4 O.O.3d 466 , 472,364 N.E.2d 267 , 274.
Although the initial burden rests on the moving party, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but * * * must set forth specific facts showing that there is a genuine issue for trial.” Civ.R. 56(E). However, since a summary judgment is a shortcut resulting in termination of litigation, it must be granted carefully and all reservations must be resolved against the moving party.
Davis v. Loopco Industries, Inc.
(1993), 66
A. Assault and Battery
The record shows that appellant played jokes on coworkers, including Rowlinson and Mouser, such as putting red tags on their backs and telling workers they could go home early. In contrast, appellant’s affidavit states that he did not engage in jokes with supervisors. On several occasions in the late 1980s, apparently as a result of these jokes, Rowlinson and/or Mouser called appellant into a line office. In his affidavit, appellant stated, “I understood that I had to go into the office on those occasions, under the threat of termination.” He further indicated that once in the office, the two supervisors poked and tickled him so that he would “jump” and “flop.” Appellant claimed that these actions continued despite his protests.
In a 1993 incident in a line office, appellant alleges that the supervisors locked the door to the office, restrained him by holding his wrists, and proceeded to tickle and poke him in the stomach and chest areas. In his deposition, appellant stated that there was a “good possibility” that he was again called into the office for playing a joke. On this occasion, appellant maintained in his affidavit, “At the time they initially restrained me, I said, ‘no, no, don’t do this,’ but they persisted, poking me so that I would jump and ‘flop.’ I continued to protest.” Again, appellant averred that he went into the office due to the fear of facing discipline and/or termination. On the other hand, appellant acknowledged that his supervisors told him more than one time that he was a good employee and that he enhanced the morale of the work force.
An assault in tort is “the willful threat or attempt to harm or touch another offensively, which threat or attempt reasonably places the other in fear of such contact.”
Smith v. John Deere Co.
(1993),
Initially, we find that appellant’s claims for assault and battery, relating to the incidents in the 1980s, are barred by the one-year statute of limitations.
B. False Imprisonment
As with his assault and battery claims, appellant’s assertion of false imprisonment centers around the incidents in the line offices. Appellant contends that there are genuine issues of material fact regarding his consent of going to and staying in the line office.
The tort of false imprisonment results when an individual intentionally confines another in a restricted area for any appreciable length of time absent lawful justification and without that individual’s consent.
Bennett v. Ohio Dept. of Rehab. & Corr.
(1991),
Again, we first find that several of the incidents occurred in the late 1980s. Thus, any claims of false imprisonment regarding those incidents are barred by the statute of limitations. With regard to the 1993 incident, appellant again asserted that he went to the office only because he feared discipline or termination. Appellant further declared, in both his affidavit and deposition testimony, that he was physically restrained in the line office. Thus, even if the initial confinement in the line office was justified, for example, as disciplinary action for disrupting the work environment, there is a genuine issue of material fact regarding the subsequent restraint of appellant. Appellant’s assertions, therefore, concerning his claim of false imprisonment are well taken.
C. Intentional Infliction of Emotional Distress
The following elements must be established in order to recover in an action for intentional infliction of emotional distress:
“1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor’s conduct was so extreme and outrageous as to go ‘beyond all possible bounds of decency’ and was such that it can be considered as ‘utterly intolerable in a civilized community,’ * * *; 3) that the actor’s actions were the proximate cause of plaintiffs psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that ‘no reasonable[person] could be expected to endure it.’ ” Pyle v. Pyle (1983), 11 Ohio App.3d 31 , 34, 11 OBR 63, 66,463 N.E.2d 98 , 103.
The Ohio Supreme Court, in
Yeager v. Local Union 20
(1983),
“ ‘ * * * It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. * * * Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” * * * The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ”
Additionally, the statute of limitations for intentional infliction of emotional distress is four years. R.C. 2305.09(D). See
Yeager v. Local Union 20,
In support of his claim for intentional infliction of emotional distress, appellant submits that his affidavit should be considered “as a whole” to show that “the actions of Appellees and Whirlpool employees constitute extreme and outrageous conduct.” Appellant cites various incidents, including receipt of blowup dolls, cartoons, and an item labeled a “penis warmer.” He also refers to the above-mentioned line office incidents concerning Rowlinson and Mouser.
Initially, we find that any alleged actions that occurred more than four years before the complaint was filed are barred by the statute of limitations. As to the remaining incidents, appellant has failed to set forth evidence that such actions are so outrageous and extreme to meet the requirements as set forth in Yeager. The trial court, therefore, properly granted appellees’ summary judgment motion regarding this cause of action.
D. Defamation
In his affidavit, appellant cited to three alleged incidents in support of his claim of defamation. First, appellant asserts that on several occasions, a coworker yelled, “[H]ey, Retterer, how’s your AIDS?” Next, appellant stated that a coworker, in the presence of another party, told him “to get away from [me], because I [Retterer] had AIDS.” Finally, appellant maintains that a “caution” tape, hung across a bathroom door, referred to him having AIDS.
To maintain an action for defamation at common law, including libel and slander, a plaintiff must show:
“ ‘(a) a false and defamatory statement concerning another;
“ ‘(b) an unprivileged publication to a third party;
“ ‘(c) fault amounting at least to negligence on the part of the publisher; and
“ ‘(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.’ ” Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc. (1992),81 Ohio App.3d 591 , 601,611 N.E.2d 955 , 962, quoting 3 Restatement of the Law 2d, Torts (1977) 155, Section 558.
Furthermore, there is a one-year statute of limitations for defamation actions. R.C. 2305.11(A).
The trial court found that some of the incidents with regard to the coworker yelling that appellant had AIDS occurred during the 1980s. Appellant’s deposition supports this conclusion. There is no reference to a contrary date. Consequently, these allegations are barred by R.C. 2305.11(A). Furthermore, appellant has failed to set forth evidence establishing genuine issues of material facts regarding these incidents.
The second claim is cited as occurring in 1993. Appellant testified that he does not have AIDS. He further indicated in his deposition testimony and his affidavit that a supervisor was present when the coworker, on the assembly line, told him to get away because he had AIDS. He testified that the supervisor “turned his head the other way” and “[tjotally ignored it.” In his affidavit, appellant stated that the supervisor was present when the coworker made the remark. The trial court concluded that there was no evidence of publication.
As stated above, appellant must present evidence of publication to a third person in order for a claim of defamation to be actionable. In
Wyrick v. Westover Retirement Community
(Mar. 13, 1989), Butler App. No. CA88-06-086, unreported,
In the instant case, appellant has identified the individual present at the time of the alleged statement and has indicated, albeit through nonverbal actions, that the individual heard the statement. Since we must construe the evidence presented and inferences from that evidence in favor of the nonmoving party, we find that appellant has met the threshold necessary to defeat summary judgment on this particular claim of defamation.
Regarding the third incident, appellant stated that when he left the bathroom at work, he found a banner draped across the doorway with the word “caution” written on it. He asserts, in his affidavit, that another coworker told him that “it was a reference to AIDS — that others should stay away from me, because I had AIDS.” The trial court found that since the banner contained no defamatory words and the only evidence regarding its meaning was a coworker’s hearsay statement, appellant’s libel claim failed. We concur with the trial court’s conclusion and find that appellant has failed to set forth evidence to establish genuine issues of material fact regarding this particular claim.
E. Sexual Harassment
Appellant contends that his claims for sexual harassment are viable under R.C. 4112.02 and common law. In particular, appellant maintains that he was harassed “on account of his gender” and further that he was subjected to a hostile work environment.
Initially, we note that in analyzing statutory sexual harassment claims, Ohio courts have generally looked to the statute itself, R.C. 4112.02(A), the administrative equivalent,
2
and to federal case law construing Title VII of the Civil Rights Act of 1964, Section 2000e
et seq.,
Title 42, U.S. Code.
3
Delaney v. Skyline Lodge, Inc.
(1994),
R.C. 4112.02(A) provides that it is unlawful for any employer to discriminate on the basis of “race, * * * sex, national origin, handicap, age, or
Under the statute, two of the requisite elements for a sexual harassment claim based on a hostile work environment are that an “employee was a member of the protected class” and “the harassment complained of was based upon sex.”
Delaney v. Skyline Lodge, Inc.,
We next examine federal case law to determine whether hostile work environment arising from sexual harassment involving two males or concerning an individual’s sexual preference is actionable under Title VII. In
Dillon v. Frank
(C.A.6, 1992),
Likewise, plaintiffs’ claim of a hostile work environment because of homosexual writings, drawings, and discussions initiated by coworkers and supervisors was rejected by the court in
Fox v. Sierra Dev. Co.
(D.Nev.1995),
Additionally, in
Carreno v. Local Union No. 226, Internatl. Bhd. of Elec. Workers
(Sept. 27, 1990), D.Kan. No. 89-4083-S, unreported,
Thus, the court, finding no cause of action under Title VII for discrimination based on sexual preference, granted summary judgment against the plaintiff.
Finally, the Ohio Supreme Court in
Kerans v. Porter Paint Co.
(1991),
In support of his position, appellant points to the following statement in his affidavit, “I do not know of any women who received the same types and level of harassment which I received.” Appellant, however, cites numerous physical objects and verbal comments relating to sexual preference. In his deposition, appellant also described a harassment incident which happened to a woman who appellant indicated was a lesbian. Finally, appellant’s brief cites no incidents of any other males being harassed.
Based on this, as well as the rest of the record, we find that appellant has failed to set forth evidence to withstand summary judgment regarding harassment because of his sex. Instead, appellant has set forth evidence relating to his sexual orientation. In view of the above analysis, such harassment is not actionable in the instant case and summary judgment was appropriately granted.
F. Disability Discrimination
Appellant maintains that he was subjected to discrimination because of a perception that he had AIDS. He refers to the same comments alleged in his defamation claim as well as the displaying of a poster concerning AIDS as support for his assertion. 5
Again, R.C. 4112.02(A) prohibits any unlawful discriminatory practices on the basis of handicap which includes any discrimination with regard to conditions of employment or any other matter related to employment. The definition of
In the instant case, appellant’s mere reference to a few comments regarding AIDS and a poster fail to present any genuine issues of material fact regarding discriminatory practices due to the perception that appellant has AIDS. Thus, the trial court appropriately granted summary judgment regarding appellant’s disability claim.
G. Negligent Supervision
In count eight of his complaint, appellant argues that Whirlpool “knew or should have known of the foregoing unlawful and/or tortious actions of its employees.” On the other hand, appellees assert that since appellant attributes his injury to the negligence of Whirlpool, it falls within the confines of the Workers’ Compensation Act. Both parties also cite the Blankenship intentional tort exception to the Workers’ Compensation Act in support of their positions.
We first reject appellees’ claim that the Ohio Workers’ Compensation Act conclusively bars appellant’s negligent supervision claim. R.C. 4123.74 provides that employers have no liability “to respond in damages at common law or by statute for any injury, * * * or bodily condition, received or contracted by any employee in the course of or arising out of his employment.” The definition of injury excludes any “[pjsychiatric conditions except where the conditions have arisen from an injury or occupational disease.” R.C. 4123.01(C)(1). Thus, the Ohio Supreme Court stated it was unable to conclude that emotional disturbances “arising solely from emotional stress in the workplace fit within the definition of ‘injury’ in R.C. 4123.01.”
Kerans v. Porter Paint Co.,
Next, we discuss the intentional tort exception. In
Blankenship v. Cincinnati Milacron Chemicals, Inc.
(1982),
As a preliminary matter, we note that “an underlying requirement in actions for negligent supervision * * * is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer.”
Strock v. Pressnell
(1988),
As to appellant’s viable claims, however, appellant must show that Whirlpool breached its duty to act “reasonably and prudently” in supervising its employees. See
Morgan v. Fisher Foods, Inc.
(Dec. 5, 1991), Cuyahoga App. No. 59488, unreported,
Appellant asserted that a human resources staff person was present “on at least one of the occasions” in the line office, but presents no evidence that Whirlpool failed to act reasonably and prudently. Moreover, appellant apparently made no report to Whirlpool of the various incidents prior to May 1993, even though he encouraged others to utilize the complaint procedures. In May 1993, appellant’s attorney wrote a letter to Whirlpool complaining of the alleged conduct. As a result, Whirlpool conducted an investigation and took action. Thus, summary judgment was appropriately granted in favor of appellees.
In conclusion, the second assignment of error is overruled with respect to appellant’s claims of intentional infliction of emotional distress, disability discrimination, sexual harassment, and negligent supervision and sustained in part as discussed herein regarding the claims of assault and battery, false imprisonment, and defamation. The judgment of the Marion County Court of Common Pleas is, therefore, affirmed in part and reversed, and the cause is remanded in part in accordance with this opinion.
Judgment accordingly.
Notes
. Appellant has been on medical leave since May 1994.
. Ohio Adm.Code 4112-5-05(1) prohibits sexual harassment "on the basis of sex.”
. Title VII prohibits an employer from discriminating because of a person’s sex.
. In this case, the Sixth Circuit affirmed
Dillon v. Frank
(Oct. 19, 1990), E.D.Mich. No. 90-CV-70799-DT, unreported,
. Appellant contends that even though appellees failed to move for summary judgment on the issue of disability discrimination, the trial court granted judgment on this issue. We note that appellees mention this claim in their summary judgment motion.