WILLIAM WHOLF v. TREMCO INCORPORATED, ET AL.
No. 100771
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 22, 2015
2015-Ohio-171
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-12-779194
BEFORE: E.T. Gallagher, J., Celebrezze, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: January 22, 2015
Matthew D. Greenwell
Charles V. Longo
Charles V. Longo Co., L.P.A.
25550 Chagrin Boulevard
Suite 320
Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEES
Sue M. Douglas
Amy Ryder Wentz
Robert M. Wolff
Littler Mendelson, P.C.
1100 Superior Avenue, 20th Floor
Cleveland, Ohio 44114
{¶1} Plaintiff-appellant, William Wholf (“Wholf“), appeals an order granting summary judgment in favor of defendants-appellees, Tremco Incorporated (“Tremco“), Edward Nowak, and Timothy Sworney (collectively “appellees“). We find merit to the appeal and reverse the trial court‘s judgment.
{¶2} Tremco manufactures and sells roofing installation and weatherproofing services for buildings such as schools, hospitals, and manufacturing facilities. As part of its warranty program, Tremco provides on-site roofing inspections and preventative maintenance services, which are supported through an Online Information System (“OLI“). Wholf worked in Tremco‘s OLI department from January 3, 2006, until his resignation on May 20, 2011.
{¶3} Following his resignation, Wholf filed a complaint against Tremco in which he asserted two claims. In Count 1, a retaliation claim brought pursuant to
{¶4} Appellees filed a joint motion for summary judgment on Wholf‘s claims. The facts, as set forth in affidavits and deposition testimony, are as follows: Tremco hired Wholf in 2006 as its primary OLI trainer under the title OLI Sales/Customer Support Manager. Employees in the OLI department receive roof inspection reports from field personnel and enter the information into online databases that customers may access to review detailed roofing inspection data and repair recommendations. OLI‘s objective is to increase the number of customers and sales representatives who understand and use the OLI. Wholf was primarily
{¶5} Wholf reported to the Inspection and Maintenance Service Manager. In 2010, Tremco hired Edward Nowak (“Nowak“) as the new Inspection and Maintenance Services Manager. From 2006 through 2010, Wholf received positive performance evaluations from his previous and current supervisors.
{¶6} Sometime after Nowak joined Tremco, some female employees complained that Nowak made sexually suggestive comments to them and stared inappropriately at their breasts. One of the alleged victims was Melissa Wholf (“Melissa“), Wholf‘s wife, who worked part time performing data entry. At a Tremco-sponsored luncheon on November 4, 2009, Nowak stared at Melissa‘s breasts for an extended period of time. Employees at the table commented on Nowak‘s behavior, but he did not seem to hear them and continued staring. Melissa felt uncomfortable and raised a menu to hide her breasts in an effort to end the situation.
{¶7} Tremco‘s non-harassment policy defines “harassment” as “any unwelcome or unsolicited verbal, visual, written, sexual or physical conduct that creates or contributes to a hostile or offensive work environment.” “Leering” is included as an example of harassment under the policy. The non-harassment policy provides that “if an employee observes or becomes aware of actual or perceived harassment of another employee, then the observing employee should immediately report the matter to a supervisor, manager, or officer (up to and including the President of the Company).” When harassment is reported, the policy provides that “Tremco will investigate all complaints promptly, thoroughly and fairly,” and “[n]o retaliation of any kind * * * will be taken against an employee for making a complaint.”
{¶9} Halkovics interviewed the alleged victims; Melissa, Garcia, and Val Giampietro to hear their versions of the facts. She also met with Maureen Greeves, another Tremco manager who worked with Nowak, to see if she had any similar experiences, but she had not. Halkovics met with Nowak, informed him of the complaints and advised him that the reported behavior was unacceptable. Halkovics also counseled Nowak on Tremco‘s non-harassment policy. There is no evidence that any more harassment occurred after Halkovics‘s investigation and meeting with Nowak.
{¶10} Wholf was nevertheless frustrated by what he believed was an inadequate investigation and reported the harassment to the “NETWORK” in June 2010. According to the non-harassment policy, the NETWORK is “an independent and autonomous service devoted to collecting and reporting employee complaints regarding practices and behaviors that may be
{¶11} In response to the NETWORK complaint and the anonymous emails, Tierney met with Korach, and spoke with Halkovics and Solether about their alleged affair. Tierney also retained outside counsel to review Halkovics‘s previous investigation. Following the review of the investigation, Tierney completed a report and sent it to RPM International Inc., Tremco‘s parent company, as required practice when a NETWORK complaint is made.
{¶12} Wholf testified at deposition that after he complained about Nowak‘s harassing behavior, he “felt a backlash” from Nowak beginning in March or April 2010. Wholf asserted that Nowak reassigned some of his projects to other employees and excluded him from meetings. Consequently, Wholf informed Todd Sworney (“Sworney“), Tremco‘s Drafting Supervisor, that he believed Nowak was retaliating against him for reporting his harassing behavior even though Nowak gave Wholf a positive performance evaluation in late May 2010.
{¶13} In November 2010, Solether reorganized the management structure of the company. The OLI production department was reorganized such that Sworney became the supervisor of quality control and training personnel, and Garcia became the supervisor of data entry personnel. Nowak informed Wholf that Sworney would be his new supervisor, and
{¶14} On November 5, 2010, Sworney instructed Wholf that, in addition to his regular duties, he was now required to keep a detailed daily time sheet to account for his time throughout the day. Sworney‘s goal was for Wholf to generate enough outside interest in OLI training that he could train on a full-time basis. However, Wholf did not meet Sworney‘s production goals and did not increase his training workload. On November 11, 2010, Nowak informed Wholf that due to budget cuts, Tremco would no longer reimburse his personal cell phone, which he had used for work-related business.
{¶15} In December 2010, Sworney instructed Wholf that he must devote half of his workday to data entry. Two weeks later, Sworney placed Wholf on a “Performance Improvement Plan” (“PIP“), because he was not meeting his daily data entry quotas. The PIP subjected Wholf to more supervision by Sworney and Halkovics. In response, Wholf created an “action plan” to address concerns raised in the PIP. In the plan, Wholf stated that Sworney was motivated to issue the PIP by discrimination, retaliation, and workplace harassment. On January 27, 2011, Tremco lowered Wholf‘s job grade from level 10 to level 9. Although his salary was not affected, his bonus eligibility was reduced by the potential amount of $1,300.
{¶16} Wholf complained to Tierney that he believed Sworney was retaliating against him. Tierney questioned Sworney about Wholf‘s retaliation claims and subsequently convinced Sworney to lower Wholf‘s data entry quota from 50 forms per half-day to 40 forms per half-day.
{¶17} On February 15, 2011, Sworney informed Wholf that he would be assuming another employee‘s responsibilities while she was on maternity leave. These responsibilities included closeouts and mail for the OLI department. “Mail” involved receiving large bankers boxes full of roof-inspection forms, which had to be opened, logged into several databases, and folders created for each form. Closeouts entail tallying all the time worked on the roof-inspection forms and closing out that job in various databases. Wholf‘s PIP was modified to reflect these additional responsibilities.
{¶18} On April 15, 2011, Sworney expressed concerns that Wholf was not meeting the expectations listed in his PIP. On May 3, 2011, Wholf was offered a position with another company. Wholf submitted a two-week notice to Sworney in which he stated that the harassment and retaliation against him resulting from his complaints about Nowak forced him to leave the company.
{¶19} The trial court granted appellees‘s motion for summary judgment and found that Wholf failed to establish that the alleged retaliation was the “but-for” cause of appellees‘s adverse employment action. It also found there was no evidence to support his intentional infliction of emotional distress claim because appellees‘s alleged actions were not “extreme and outrageous.” Wholf does not appeal the judgment on his intentional infliction of emotional distress claim. He appeals the judgment in appellees‘s favor on his retaliation claim and raises two assignments of error.
Standard of Review
The “But-For” Causation Standard
{¶21} In the first assignment of error, Wholf argues the trial court erroneously applied the “but-for” causation standard articulated in Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. ___, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), to his retaliation claim. He contends the court should have applied the less stringent “motiving factor” causation standard that he claims courts applied prior to Nassar.
{¶22} In Nassar, the United States Supreme Court defined the applicable causation standard for employment retaliation claims brought pursuant to Title VII,
{¶23} Title VII‘s anti-retaliation provision appears in
It shall be an unlawful employment practice for an employer to discriminate against any of his employees * * * because he has opposed any practice made an unlawful employment practice under this subchapter, or because he has made a charge in any manner in an investigation, proceeding, or hearing under this subchapter.
Commenting on this language and the general statutory structure, the Nassar court held that “Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e-2(m).” Nassar at 2517. The “but-for” standard requires proof that the unlawful retaliation would not have occurred if the employee had not engaged in protected anti-discrimination activity. Id. at 2529. The employee‘s protected activity must “have had a determinative influence on the outcome.” Id. at 2525.
{¶24} Ohio courts have held that since Ohio‘s antidiscrimination laws contained in
{¶25} Nevertheless, Wholf contends
{¶26} Second, Wholf argues that
{¶27} However, the difference in statutory structure between the federal and Ohio anti-discrimination statutes has little or no relevance. Indeed, the General Assembly separated status-based discrimination claims from retaliation claims in separate subsections of
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment * * * because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.
It shall be an unlawful discriminatory practice * * *
(I) For any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or
participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.
(Emphasis added.)
{¶28} In contrast to these provisions, Title VII‘s “mixed motives” provision, which applies to status-based discrimination claims, states in relevant part:
Impermissible consideration of race, color, religion, sex, or national origin in employment practices. Except as otherwise provided in this title [42 U.S.C. 2000e et seq.], an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
{¶29} The word “because” appears in both the Ohio and federal anti-retaliation provisions but does not appear in Title VII‘s “mixed motives” provision. Applying the ordinary meaning of the word “because,” the Nassar court concluded that 2000e-3(a) “makes it unlawful for an employer to take adverse employment action against an employee ‘because’ of certain criteria.” Nassar, 133 S.Ct. 2517 at 2528, citing Gross v. FBL Fin. Serv. Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Therefore, the plain language of
{¶30} Anti-discrimination jurisprudence further compels this conclusion and informs the application of the “but-for” standard to employment retaliation claims. The starting point for analyzing this issue is the United States Supreme Court‘s decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in which the court prescribed “the order and allocation of proof in a private, non-class action challenging employment
{¶31} In Texas Dept. Of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the court elaborated on the burden shifting framework and explained that plaintiff‘s initial “burden of establishing a prima facie case of disparate treatment is not onerous.” Id. at 253. The plaintiff is not required to conclusively establish all the elements of his discrimination claim in the prima facie case because the prima facie case simply creates a presumption of discrimination that forces the employer to produce evidence of a legitimate, non-discriminatory reason for the adverse employment action. St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
{¶32} In Hicks, the court further explained that once the employer produces some evidence in its defense “(whatever its persuasive effect), * * * the trier of fact proceeds to decide
{¶33} One of the most important discrimination cases concerning the applicable causation standard in retaliation cases is Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). In Price Waterhouse, the court was asked to determine whether a Title VII plaintiff could prevail on a sex discrimination claim if she established that her gender was a factor in the adverse employment action when the employer was able to demonstrate that legitimate non-discriminatory factors also played a role. Price Waterhouse presented a situation where both legitimate and discriminatory reasons, i.e, “mixed motives,” motivated the adverse employment decision.
{¶34} The Price Waterhouse court held that,
in cases where the plaintiff offers “direct evidence” of unlawful discrimination and evidence as a whole permits a conclusion that both permissible and impermissible considerations played a role in the employer‘s decision, the plaintiff need only show that the unlawful motive was a substantial motivating factor in that decision. If the finder of fact concludes that the plaintiff has carried this burden, the burden of persuasion shifts to the defendant to prove that the unlawful motive was not a but-for cause, i.e., that the same action would have been taken, because of legitimate considerations, in the absence of the unlawful motive.
Harris v. Giant Eagle, Inc., 133 Fed.Appx. 288, 296 (6th Cir.2005), quoting Miller v. Cigna Corp., 47 F.3d 586, 594 (3d Cir.1995)(en banc)(emphasis added in Harris).
{¶35} Thus, the Price Waterhouse court held that once there is direct evidence that the protected trait was a motivating factor in the adverse treatment of the employee, the employer
{¶36} In response to Price Waterhouse, Congress passed the 1991 Act, which added the “motivating factor” language to 2000e-2(m) and lowered the plaintiff‘s evidentiary burden in Title VII employment discrimination cases. As previously stated, under the 1991 Act, courts could find liability for plaintiffs who could demonstrate a protected trait was a motivating factor in the adverse employment action even though the employer could also demonstrate it would have taken the same action regardless of the protected trait.
{¶37} It was clear the 1991 Act applied to status-based discrimination claims, but Congress did not indicate that it applied to retaliation claims. Most courts continued to apply the standard articulated in Price Waterhouse to retaliation claims because retaliation claims were not included in 2000e-2(m), which contains the “motivating factor language.” See Kubicko v. Ogden Logistics Serv., 181 F.3d 544 (4th Cir.1999); McNutt v. Bd. of Trustees, 141 F.3d 706 (7th Cir.1998); Woodson v. Scott Paper Co., 109 F.3d 913, 932-936 (3d Cir.1997), cert. denied, 139 L.Ed.2d 230, 118 S. Ct. 299 (1997); Tanca v. Nordberg, 98 F.3d 680, 682-685 (1st Cir.1996), cert. denied, 137 L.Ed. 2d 333, 117 S.Ct. 1253 (1997); Riess v. Dalton, 845 F.Supp. 742,
{¶38} Until recently, Ohio courts have not defined a particular causation standard to be applied in either status-based or conduct-based discrimination actions, and no Ohio court has expressly held that retaliation claims survive where there is evidence that legitimate factors played a role in the adverse employment action. And no Ohio court defined the “but-for” causation standard until the Tenth District released Smith v. Ohio Dept. of Public Safety, 10th Dist. Franklin No. 12AP-1073, 2013-Ohio-4210.
{¶39} Nevertheless, Ohio case law preceding Nassar applied the “but-for” causation standard to retaliation claims. Wharton v. Gorman-Rupp Co., 309 Fed.Appx. 990, 998-999 (6th Cir.2009). In Wharton, the Sixth Circuit Court of Appeals, applying Ohio law, held that in order for a plaintiff to prevail on a retaliation claim brought pursuant to
{¶40} The employee in Wharton conceded that her retaliation claim was based on circumstantial evidence. The court applied the McDonnell-Douglas framework and concluded that the employee established her prima facie case of retaliation. It also determined there were
{¶41} The Wharton court, like most Ohio courts, did not discuss the causation element of the prima facie case in any detail. Instead, it determined that the employer could be held liable because it failed to produce evidence of a nondiscriminatory motive for the adverse action. Had the employer established a legitimate, nondiscriminatory reason for its action, it would have avoided liability under
{¶42} In 2013, the United States Supreme Court decided Nassar, 570 U.S. ___, 133 S.Ct. 2517, 186 L.Ed.2d 503, and held that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in 2000e-2(m). Id. at 2533. Despite Wholf‘s argument to the contrary, the “but-for” standard articulated in Nassar is not a new standard; it is a clarification of the standard that has been applied in retaliation cases since the Supreme Court decided Price Waterhouse in 1989. See, e.g., Lascu v. Apex Paper Box Co., 8th Dist. Cuyahoga No. 95091, 2011-Ohio-4407, ¶ 27 (once employer has articulated a valid, nondiscriminatory rationale for retaliatory action, burden shifts to employee “to prove that discrimination was the real reason for the discharge.“); Wittman v. Akron, 9th Dist. Summit No. 21375, 2003-Ohio-5617 (expressly applying Price Waterhouse to retaliation claim).
{¶43} It is important to note that Nassar does not mention the term “prima facie case,” nor does it refer to the McDonnell Douglas burden shifting framework. However, as previously explained, the plaintiffs evidentiary burden of establishing a prima facie case in the
{¶44} As previously stated, Title VII‘s “mixed motives” provision applies to “status-based” discrimination claims. That is not the issue here. Wholf has brought a retaliation claim pursuant to
{¶45} Accordingly, the first assignment of error is overruled.
Prima Facie Case of Retaliation
{¶46} In the second assignment of error, Wholf argues the trial court erred in summarily dismissing his retaliation claim because he produced sufficient evidence to establish a genuine issue of material fact that appellees retaliated against him because of his participation in protected activities in violation of
{¶47} There is no dispute that Wholf engaged in protected activity when he reported sexual harassment, or that appellees knew he engaged in protected activity. Nor do appellees challenge the adverse employment action element of Wholf‘s retaliation claim. The sole issue is
{¶48} Appellees argue Wholf cannot establish the causation element of his prima facie case because the adverse action occurred before the protected activity. Appellees contend Wholf‘s surreptitious recording of his February 9, 2010 meeting with Nowak established that the protected activity occurred after the alleged retaliatory acts. Wholf accuses Nowak on the recording of retaliating against him by “lea[ving] [him] out of everything,” and pushing “him out” of “[a]nything to do with training.” Therefore, appellees conclude, the recording proves Nowak began excluding Wholf from projects and meetings before he engaged in any protected activity.
{¶49} However, Wholf continued to engage in protected activity over the next several months and endured additional adverse employment actions. After Wholf confronted Nowak about the harassment at the February 9, 2010 meeting, he reported the harassment to a vice president of the company in March 2010. (Wholf Depo. 84, Tierney Depo. 34.) Despite Wholf‘s generally positive performance evaluation in May 2010, Wholf testified that he was suspicious of the evaluation and questioned Nowak‘s motive for some of the favorable remarks. He explained:
Well * * * obviously, you can see I got some exceeds in here, successfuls. * * * [w]ork is performed as assigned and is done on time, you know. So overall, a good review.
Understand, though, Ed‘s a very smart man. Now, it would have been dumb for him to give me a completely bad review and then say, Well, it‘s just — that‘s how I view your work.
So instead, since it was almost review time anyways when this started, I get an appropriate review, which is * * * good, and then I start getting pushed off of projects, transferred to a new supervisor. And then within, you know, a month or so of being * * * under Tim Sworney, I‘m on a performance evaluation.
{¶50} When asked what problems Wholf was having before his evaluation, he explained:
Just the avoidance. You know, I felt like I was starting to get pushed out of some projects, but not formally. You know, it just felt like a little backlash from my conversation with him.
{¶51} Wholf was frustrated by what he believed was an inadequate response to Nowak‘s harassment. In June 2010, Wholf made a NETWORK complaint about Nowak, Solether, and Halkovics to the Ethic and Compliance Employee Hotline. (Wholf Depo. 160.) This was the first time Wholf complained about Solether and Halkovics‘s conduct. The NETWORK complaint alleged not only Nowak‘s sexual harassment but also Halkovics‘s failure to properly investigate Wholf‘s original complaint because her investigation “may have been impacted by a personal relationship between Karen Halkovics and Jim Solether.” A week later, Wholf sent the President of Tremco an anonymous email once again reporting Nowak‘s conduct and the feeble investigation.
{¶52} Following Wholf‘s complaints, in October 2010, Nowak informed Wholf that his title was going to be changed from manager to coordinator, a label that signifies less responsibility. At this time, Nowak (1) removed Wholf from his position as “Project Leader on all OLI enhancements,” (2) removed Wholf as the “Project Leader on EDGE (Electronic Data Gathering Equipment) Project,” and (3) removed Wholf as the “liaison to [the] IT Department from Sales Representatives & Customers.” (Nowak Depo. at 114-123, Wholf Depo. at 204-207, 218-221.)
{¶54} Obviously, the less time that passes between the protected activity and the retaliatory action, the more conspicuous the causal connection. Nevertheless, “retaliation has been found when termination followed the protected activity by over one year.” Smith v. Superior Prod., 10th Dist. Franklin No. 13AP-690, 2014-Ohio-1961, ¶ 33, citing Harrison v. Metro. Govt. Of Nashville, 80 F.3d 1107, 1119 (6th Cir.1996), overruled on other grounds by Jackson v. Quanex Corp., 191 F.3d 647, 667 (6th Cir.1999).
{¶55} Several months elapsed between Wholf‘s first complaint of harassment to Nowak in February 2010 and his apparent demotion from manager to coordinator and data entry worker in November 2010. However, Wholf continued to lodge complaints against Nowak and made his first complaints against Halkovics and Solether during this nine-month period. Indeed, appellees’ retaliatory acts became increasingly more harsh as Wholf persisted with his complaints. We therefore find there is a genuine issue of material fact as to whether appellees retaliated against Wholf because of his protected activity.
{¶57} The second assignment of error is sustained.
{¶58} Judgment reversed and remanded to the trial court for further proceedings.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
MELODY J. STEWART, J., CONCUR