Kubala v. Smith

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KENNETH J. KUBALA, ) CASE NO. 4:18CV1988

)

Plaintiff, )

) MAGISTRATE JUDGE

) GEORGE J. LIMBERT

v. )

)

RANDY SMITH, et al., ) MEMORANDUM OPINION & ORDER

)

Defendants. )

The above case is before the Court on a motion for summary judgment filed pursuant to

Rule 56 of the Federal Rules of Civil Procedure by Defendants Trumbull County, Ohio

(“Defendant Trumbull) and Trumbull County Engineer Randy Smith in his individual and

official capacities (“Defendant Smith”) (collectively “Defendants”). ECF Dkt. #19. Defendants

move for summary judgment in their favor on all three counts of a complaint filed by Plaintiff

Kenneth J. Kubala (“Plaintiff”). Id. For the following reasons, the Court GRANTS Defendants’

motion for summary judgment and DISMISSES Plaintiff’s complaint in its entirety WITH

PREJUDICE. Id.

I. FACTS AND PROCEDURAL HISTORY

On June 18, 2018, Plaintiff filed a complaint in the Trumbull County Court of Common

Pleas averring that he was employed by the Office of the Trumbull County Engineer from

October 11, 2011 to May 11, 2018 and during the past several years of his employment,

Defendant Smith had subjected him to a sexually hostile work environment. ECF Dkt. #1-1 at

21. Plaintiff alleged the following 11 specific incidents that he described as “[s]exually hostile

acts” by Defendant Smith toward him:

1 Page numbers in this report and recommendation refer to the Page ID# in the electronic filing system.

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a. Smith asked Kubala to take off his shirt in his office in front of others,

including human resources director, Herb Laukhart, who was present for

the majority of these comments and interactions;

b. Smith encouraged Kubala to come and visit his renter, “Richard,” at his

rental property and clearly implied a sexual liaison;

c. Smith, in a “creepy” way, without knowing if he was joking or being

serious, said his wife, Angela, was at a union conference and asked

Kubala to come over to keep him from being “scared;”

d. Smith asked if Kubala had seen another elected official nude;

e. Smith called Kubala and said his renter, “Richard,” was waiting for him

on a sheepskin rug;

f. Smith, at a meeting, encouraged Kubala to place his “wiener” in the ear

of another high-ranking Trumbull County Engineer’s Office employee,

who appeared to be sleeping;

g. Smith, on dozens and dozens of occasions, would lick the top of his

Diet Pepsi can in an uncomfortable manner while looking at Kubala for

some type of reaction;

h. Smith suggested that Kubala ride in a truck with the road superintendent

while holding his “wiener;”

i. Smith asked Kubala to see Kubala’s hands and said “You have nice, soft

hands.” Smith asked Kubala to see his hands again three months later,

Kubala said no and Smith grabbed Kubala’s hand;

j. While at lunch at the Buena Vista Cafe, the hostess asked Smith and

Kubala “How are you doing?” and Smith replied "We’re trying to find

Kubala a boyfriend or girlfriend; anyone will do,” and;

k. On one occasion, Smith saw Kubala sitting outside the Starbucks at the

Eastwood Mall with a female and said “Good to see you with a girl.”

Id. at 3-4. Plaintiff went on to aver that Defendant Smith’s described conduct “permeated

Kubala’s work place with sexually based intimidation, ridicule and insult. All of Smith’s

sexually based conduct toward Kubala was unwanted by Kubala.” Id. at 4. Plaintiff alleged that

Defendant Smith’s pervasive conduct drove him from his job so that he resigned and was

therefore constructively discharged from his employment. Id. Plaintiff further alleged that

Defendant Smith’s conduct caused him to sustain economic losses and emotional and

psychological injuries such that he had to seek mental health treatment. Id.

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In the second count of his complaint, Plaintiff alleged that Defendant Trumbull is liable

for the sexually hostile work environment created by Defendant Smith because of Defendant

Smith’s position in the hierarchy of Defendant Trumbull as it knew or should have known that

Defendant Smith was sexually harassing him and creating a sexually hostile work environment.

ECF Dkt. #1-1 at 5. Plaintiff alleged that Defendant Trumbull County did not take any action to

stop Defendant Smith from creating a sexually hostile work environment for Plaintiff and did

nothing to repair or limit the damage caused by him to Plaintiff. Id.

In the third count of his complaint, Plaintiff alleged that Defendant Smith violated

his civil rights by threatening him with job-related consequences if he participated in certain

political activities and affiliated himself with certain individuals. ECF Dkt. #1-1 at 6. Plaintiff

averred that these threats violated his right of freedom of speech and association under the

United States and Ohio Constitutions and Defendant Trumbull knew or should have known of

the threats due to Defendant Smith’s place in the hierarchy of employment. Id. Plaintiff alleged

emotional and psychological injuries for which he sought treatment from mental health

professionals. Id. at 6-7.

In conclusion, Plaintiff requested that the Court find that Defendants violated his rights

“pursuant to Ohio Revised Code (“ORC”) §§ 4112.01 et seq. to be free from sexually harassing

conduct and free from a sexually hostile work environment; [and] that Smith and Trumbull

County, Ohio violated Kubala’s constitutional rights to freedom of speech and freedom of

association.” ECF Dkt. #1-1 at 7.

On September 5, 2018, Defendants filed an answer to the complaint. ECF Dkt. #3. On

October 26, 2018, the parties consented to the jurisdiction of the undersigned. ECF Dkt. #6. On

August 29, 2019, Defendants filed the instant motion for summary judgment. ECF Dkt. #19.

Plaintiff filed a brief in opposition to the motion for summary judgment on November 1, 2019.

ECF Dkt. #22. On November 12, 2019, Defendants filed a reply brief. ECF Dkt. #23.

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II. STANDARD OF REVIEW FOR MOTION FOR SUMMARY JUDGMENT

Rule 56(a) of the Federal Rules of Civil Procedure provides in pertinent part that

the Court "shall grant summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(a); see also Fed. R. Civ. P. 56, Advisory Committee Notes ("The standard for granting

summary judgment remains unchanged" despite 2010 amendments to Rule 56). Rule 56(c)

outlines the procedures for supporting or opposing a motion for summary judgment, stating that:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a

genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.

Fed. R. Civ. P. 56(c)(1). "The court must view the evidence and draw all reasonable inferences

in the light most favorable to the non-moving party." Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Biegas v. Quickway

Carriers, Inc., 573 F.3d 365, 374 (6th Cir. 2009). Rule 56(c)(3) provides that the Court need

only consider cited materials in determining a motion for summary judgment, although the Court

may consider other materials in the record. Fed. R. Civ. P. 56(c)(3).

The party moving for summary judgment has the burden of showing there exists no

genuine issue of material fact. Matsushita Elec. Indus. Co.., 475 U.S. at 587. If the moving party

meets his burden, the nonmoving party must take affirmative steps to avoid the entry of a

summary judgment. See Fed.R.Civ.P. 56(e). To refute such a showing, the nonmoving party

must present some significant, probative evidence indicating the necessity of a trial for resolving

a material, factual dispute. Celotex, 477 U.S. at 322. A mere scintilla of evidence is not enough;

the evidence must be such that a reasonable jury could find for the nonmovant. Anderson v.

Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court may grant

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summary judgment "if the motion and supporting materials – including the facts considered

undisputed – show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3).

III. LAW AND ANALYSIS

In their motion for summary judgment, Defendants assert that they are entitled to

judgment as a matter of law on all of Plaintiff’s claims. ECF Dkt. #19. They contend that

Plaintiff’s sexual harassment claim fails as a matter of law because he cannot demonstrate a

number of required elements in order to proceed with his claims and Defendant Smith is immune

from liability for such a claim in his individual capacity. Id. at 3-13. Defendants further assert

that Plaintiff’s First Amendment claims also fail as a matter of law. Id. at 24.

A. SEXUAL HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIM

In his complaint, Plaintiff specifically requests that the Court find that Defendants have

violated his rights “pursuant to Ohio Revised Code §§ 4112.01 et seq. to be free from sexually

harassing conduct and free from a sexually hostile work environment.” ECF Dkt. #1-1 at 7.

Plaintiff also contends in his opposition brief that Defendants’ recitation and reliance upon

federal law rather than Ohio law is a weakness in their motion for summary judgment. ECF Dkt.

#22 at 19. Plaintiff asserts that the Court must deny the motion for summary judgment when

Ohio law is applied to his case. Id. at 22.

Title VII of The Civil Rights Act of 1964 prohibits employers from discriminating

“against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1). When a workplace is “permeated with discriminatory intimidation,

ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment, Title VII is violated.” Harris v.

Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993).

The United States Supreme Court has also held that Title VII of the Civil Rights Act of

1964 applies to discrimination consisting of same-sex sexual harassment. Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 78-79, 118 S.Ct. 998, 140 L.E.2d 201 (1998). While finding

that male-on-male sexual harassment in the workplace “was assuredly not the principal evil

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Congress was concerned with when it enacted Title VII,” the Supreme Court noted that

“statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,”

which includes “sexual harassment of any kind that meets the statutory requirements.” Id. at 80.

In rejecting claims that allow Title VII to include same-sex workplace harassment would

transform Title VII into a general civility code in the workplace, the Court stated that it had never

held that workplace harassment automatically constitutes discrimination because of sex, even

between men and women, just because the words used had a sexual connotation or sexual

content. Id. Rather, the Court held that “‘the critical issue, Title VII’s text indicates, is whether

members of one sex are exposed to disadvantageous terms or conditions of employment to which

members of the other sex are not exposed.’” Id., quoting Harris, 510 U.S. at 25.

The Ohio Supreme Court has held that federal case law interpreting Title VII of the Civil

Rights Act of 1964 generally applies to cases involving Ohio Revised Code § 4112 violations for

discrimination based upon sex. Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio

Civ. Rights Comm., 66 Ohio St.2d 192, 196, 421 N.E.2d 128, 131, 20 O.O.3d 200, 202 (1981).

The Ohio Supreme Court has also held that Ohio Revised Code § 4112.02(A) prohibits sex

discrimination in the workplace, including same-sex sexual harassment. Hampel v. Food

Ingredients Specialities, Inc., 89 Ohio St.3d 169, 729 N.E.2d 726 (2000).

In order to establish a prima facie case of sexual harassment based upon a hostile work

environment under Title VII, a plaintiff must show that: (1) he was a member of a protected

class; (2) he was subjected to unwelcome sexual harassment; (3) the harassment complained of

was based on sex; (4) the charged sexual harassment created a hostile work environment; and (5)

the existence of employer liability. Williams v. General Motors Corp., 187 F.3d 553, 560-561

(6th Cir. 1999). Ohio law provides the same, with the Supreme Court of Ohio holding that in

order to establish a hostile work environment sexual harassment claim, a plaintiff must show

(1) that the harassment was unwelcome, (2) that the harassment was based on sex,

(3) that the harassing conduct was sufficiently severe or pervasive to affect the

“terms, conditions, or privileges of employment, or any matter directly or

indirectly related to employment,” and (4) that either (a) the harassment was

committed by a supervisor, or (b) the employer, through its agents or supervisory

personnel, knew or should have known of the harassment and failed to take

immediate and appropriate corrective action.

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729 N.E.2d at 732-733. Where a plaintiff fails to establish any one of these elements, dismissal

is warranted. Warg v. Reno, 19 F.Supp.2d 776, 782 (N.D. Ohio 1998), citing Fleenor v. Hewitt

Soap Co., 81 F.3d 48, 49 (6th Cir.) cert.denied, 519 U.S. 863, 117 S.Ct. 170, 136 L.Ed.2d 112

(1996).

In the instant case, Defendants contend that Plaintiff cannot establish that he was

subjected to unwelcome sexual harassment, that the harassment was based on sex, or that the

sexual harassment created a hostile work environment.2 For the following reasons, the Court

finds that Plaintiff has failed to meet his burden of establishing a genuine issue of material fact

that the comments and conduct of Defendant Smith were sufficiently severe or pervasive.

A hostile work environment for Title VII and ORC 4112 purposes “must be both

objectively and subjectively offensive, one that a reasonable person would find hostile or

abusive, and one that the victim did in fact perceive to be so.” Faragher v. City of Boca Raton,

524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). The “severe or pervasive” element

“‘filters out complaints attacking the ordinary tribulations of the workplace, such as the sporadic

use of abusive language, gender-related jokes, and occasional teasing.’” Fry v. Wheatland Tube,

LLC., No. 18CA7, ---N.E.3d---, 2019 WL 1755686, 2019-Ohio-1453 (Ohio App. 5th Dist., Apr.

17, 2019), quoting Faragher, 524 U.S. at 788. In order to satisfy the severe or pervasive

element, “the trier of fact, or the reviewing court, must view the work environment as a whole

and consider the totality of all the facts and surrounding circumstances, including the cumulative

effect of all episodes of sexual or other abusive treatment.” Hampel, 89 Ohio St.3d at 169.

“These may include the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.” Id. at 180. “Even where individual instances

of sexual harassment do not on their own create a hostile environment, the accumulated effect of

2 The Court notes that Plaintiff testified in his deposition that he is not homosexual. ECF Dkt. #15-1 at 107.

However, Plaintiff asserts that Defendant Smith created a hostile work environment by sexually harassing him based

upon Defendant Smith’s perception that Plaintiff was homosexual. ECF Dkt. #22 at 22. Plaintiff fails to establish

that a hostile work environment same-sex sexual harassment claim can be made based upon such a perception.

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such incidents may result in a Title VII violation.” Id. at 181, quoting Williams v. General

Motors Corp., 187 F.3d 553, 563 (6th Cir. 1999).

Plaintiff in the instant case asserts that Defendant Smith’s comments and conduct

show that he was interested in Plaintiff’s sexuality and whether he was homosexual, which was

none of his business. ECF Dkt. #22 at 18. The parties dispute whether Plaintiff can establish the

“based on sex” element of a hostile work environment sexual harassment claim. He further

asserts that Defendant Smith’s comments and conduct satisfy both the severe and pervasive

requirements as they were shocking, occurred over a number of years and in front of others,

embarrassed and humiliated him, and affected him as they caused him to resign and seek medical

care. Id. at 16-17. Plaintiff concludes that Defendant Smith’s statements and conduct did not

belong in the workplace, and went far beyond simple teasing and workplace banter. Id. at 16.

He cites to Camp v. Star Leasing Company, No. 11AP-977, 2012 WL 3291798, 2012-Ohio-3650

(Ohio App. 10th Dist. Aug. 14, 2012), unpublished in support. Id.

In Camp, a female employee brought a hostile work environment sexual harassment claim

against her employer based upon the comments and conduct of her male branch manager who

was also her direct supervisor. 2012 WL 3291798, at *1. She alleged that her supervisor

degraded and humiliated her during the entire time that he was her supervisor by requiring her to

stop whatever she was doing, turn her chair to face him, put her hands in her lap, and look him in

the eye when he spoke to her. Id. She further alleged that when she did not respond fast enough

to this command, he would twirl her chair around and yell at her, “I want eye contact. I want eye

contact. Right here. Right here. Look me in the eyes.” Id. He would then point at her face and

then at his eyes. Id. He also spoke very slowly to her and exaggerated the pronunciation of his

words when he spoke to her. He also would try to stop Camp from speaking by putting his hand

in her face and yelling “stop,” and he would make sounds of disgust he made when she was

speaking. Id. Camp also indicated that her supervisor would make her meet with female sales

representatives who visited their branch as he felt it beneath him to meet with them, but he would

make sexual remarks about the female representatives to her after they left. Id. Camp alleged

that her supervisor also stopped her from going to other branches so that she could learn from

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others, even though he would initially approve such visits, and he would assign tasks to her and

then take them away and do them himself. Id. Camp alleged that male employees were not

subjected to the treatment that she was. Id. Camp further alleged that her supervisor allowed

male employees to bring in Playboy-type magazines to work and when she complained, he told

the males to move the magazines to the men’s restroom, which Camp cleaned. Id. at 1-2.

In reversing the trial court’s grant of summary judgment for the employer on Camp’s

hostile work environment claim, the Ohio Tenth District Court of Appeals found that most of the

instances Camp cited were sufficient to establish a hostile work environment. Camp, 2012 WL

3291798, at *5. In particular, the appellate court found that the supervisor’s standing order that

Camp stop what she was doing, face him quickly, put her hands in her lap, and give him her full

attention would lead a reasonable finder of fact to determine that this showed hostility and not

mere workplace interaction. Id. The court also found that the additional instances of the

supervisor putting his hand up to her face twice a month and saying “stop” to stop her talking, the

condescending way that he spoke to her on a daily basis, the sounds of disgust when she talked,

and the use of profanities also would lead a reasonable person to find that all of those allegations

showed hostility and not normal workplace interaction. Id.

When Star Leasing Company asserted that Camp could not establish pervasiveness

because the incidents she alleged were “temporally diffuse[d],” the appellate court rejected this

assertion. Camp, 2012 WL 3291798, at *6. Star Leasing Company relied upon a Fourth Circuit

Court of Appeals case, Hopkins v. Baltimore Gas and Electric Company, 77 F.3d 745 (4th Cir.

1996), in which the court held that the conduct complained of by a male supervisor against a

male employee was not sufficiently severe or pervasive to create an environment that a

reasonable person would find hostile. Hopkins alleged that his supervisor had subjected him to a

hostile work environment based upon sexual harassment from 1985-1993 when he was employed

there. Hopkins alleged that, among other things: his supervisor had bumped into him and said,

“You only do that so you can touch me;” he frequently entered the bathroom when Hopkins was

in there alone and pretended to lock the door and walked toward him, staring, and saying “Ah,

alone at last;” he attempted to force himself into the same revolving door as Hopkins; he

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regularly commented on Hopkins’ appearance, by saying “You look nice today” or “You have a

really pretty shirt on” and turned over his tie on one occasion; he was the only one in the

receiving line at Hopkins’ wedding to give him a kiss; and he directed an illuminated magnifying

lens over Hopkins’ crotch, looked through it, and asked, “Where is it?” Id. at 747-748.

Citing to other cases in which it had affirmed a directed verdict and summary judgment in

favor of employers, the Fourth Circuit found that the actions of the supervisor in Hopkins as a

matter of law did not rise to the level of creating a hostile environment to state a Title VII claim.

Hopkins, 77 F.3d at 753-755. The court found that the conduct complained of by Hopkins was

“temporally diffuse, ambiguous, and often not directed specifically at him.” Id. at 753. The

court noted that the incidents about which Hopkins complained occurred intermittently over

seven years, “with gaps between incidents as great as a year.” Id. The court also found that most

of the incidents complained of were “sexually neutral, or, at most, ambiguous.” Id. The court

noted that Hopkins never alleged that his supervisor made an overt sexual proposition or touched

him inappropriately. Id. Finally, the court found that some of the complained about comments

were not directly solely at Hopkins, as they were made in a group setting and not directed

specifically at Hopkins. Id.

In rejecting the temporal diffusion assertion by the defendant in Camp, the court found

that Camp had testified that the harassing conduct occurred daily, weekly, and monthly, and it

was ongoing and continual. Camp, 2012 WL 3291798, at *6. The court held that, “a plaintiff’s

assertion that harassing acts are ongoing, commonplace, or continual is sufficient to survive

summary judgment under the severe or pervasive standard.” Id. (Citations omitted).

However, the objective standard for establishing that a hostile work environment exists is

“not one easily met, with courts heeding the Supreme Court’s instruction that, to be actionable

under Title VII, ‘conduct must be extreme to amount to a change in the terms and conditions of

employment[.]’” Kreuzer v. Ohio Dep’t of Transp. Dist. 4, No. 5:16-cv-3026, 2018 WL 3841043,

at *9 (N.D. Ohio Aug. 13, 2018), unpublished, quoting Faragher, 524 U.S. at 788. “Fortunately

or unfortunately, not all upsetting or even mean-spirited conduct in the workplace is actionable.”

Easterling v. Ameristate Bancorp, Inc., No. 23980, 2010-Ohio-3340, 2010 WL 2802324, citing

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Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

Construing the facts in a light most favorable to Plaintiff in the instant case, the Court

finds that Plaintiff cannot show that Defendant Smith’s comments and conduct, taken

individually or cumulatively, were sufficient to constitute severe or pervasive behavior in order

to defeat summary judgment on this claim. While the comments and conduct were crass, crude,

and offensive, they do not rise to the requisite level of severity or pervasiveness in order to

establish a prima facie case of hostile work environment sexual harassment.

In looking at the totality of the circumstances, the Court first reviews the frequency of

Defendant Smith’s comments and conduct in determining whether Plaintiff has presented a prima

facie case of a hostile work environment. Hampel, 89 Ohio St.3d at 169. Nine of the eleven

instances specified by Plaintiff in his complaint concern comments made by Defendant Smith,

some of which he allegedly made on a repeated basis, such as trying to find Plaintiff a boyfriend

or girlfriend. ECF Dkt. #1-1 at 3-4. The other two instances involve Defendant Smith’s conduct,

once when Defendant Smith touched Plaintiff’s hands and told him how soft they were, implying

that he masturbated on them, and “dozens and dozens of times” when Defendant Smith allegedly

salaciously licked his Diet Pepsi cans while looking at Plaintiff for a reaction. Construing

Plaintiff’s complaint allegations in a light most favorable to him, this amounts to approximately

39 instances over Plaintiff’s nearly 7-year/80-month career with Defendant Trumbull. Courts

have held that comments and conduct occurring a similar amount of times or more do not meet

the frequency factor. See Burnett v. Tyco Co., 203 F.3d 980, 984 (6th Cir. 2000)(three allegations

of sexual comments over six-month period insufficient to meet frequency factor); Hale v. Village

of Madison, 493 F.Supp.2d 928 (N.D. Ohio 2007)(insufficient frequency found where during 3

year tenure as administrative assistant to Village Administrator, female employee alleged one

instance of non-threatening physical contact, several occasions of Administrator leaning in as if

to kiss her, and comments which “generally occurred on a monthly rather than a frequent basis,”

such as asking her if she was wearing thong underwear, showing her a computer image of cow

with a “huge penis” mounting another cow, advising a divorced female co-worker to get a

vibrator, leaning in to pretend he was going to kiss her, and saying that “someone’s chewing on

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my nuts” when someone was talking about candy on his desk, as such “conduct was not severe or

pervasive when it concerned comments made on a monthly basis); Farra v. GMC, 163 F.Supp.2d

894, 909 (S.D. Ohio 2001)(conduct occurring approximately 16 times over 20-month period not

sufficiently severe or pervasive as a matter of law); Ellis v. Jungle Jim’s Market, Inc., No.

CA2014-12-254, 44 N.E.2d 1034, 2015 Fair Empl.Prac.Case. (BNA) 192, 685, 2015-Ohio-4226

(Ohio App. 7th Dist. Mar. 9, 2017)(genuine issues of material fact existed as to whether

supervisor’s conduct was sufficiently severe and pervasive as employee and co-workers testified

supervisor referred to his penis daily, discussed oral sex and split tongues with employee daily,

told employee that he wanted to “bend [her] over and BF” her, and stuck his tongue out at her to

simulate licking).

The Court next considers the second factor of the severity of Defendant Smith’s

comments and conduct. Again, the Court does not condone the comments and conduct and they

were certainly juvenile, offensive and crass. However, the Sixth Circuit has held that

“harassment involving an element of physical invasion is more severe than harassing comments

alone.” Hawkins v. Anheuser-Busch, 517 F.3d 321, 334 (6th Cir. 2008)(reversed granting of

defendant’s motion for summary judgment on hostile work environment claim under Ohio law

where harasser made sexually explicit comments, such as requesting oral sex, and touched and

grabbed plaintiffs, and rubbed up against one of then with his private parts.) Comparatively, in

Fry v. Wheatland Tube, LLC., - - -N.E.3d - - -, No. 18CA7, 2019 WL 1755686, 2019-Ohio-1453,

(Ohio App. 5th Dist. Apr. 17, 2019), the Ohio appellate court found that genuine issues of

material fact precluded granting summary judgment in favor of the employer on Fry’s hostile

work environment sexual harassment claim. The court held that genuine issues of material fact

existed as to whether the shipping leader’s conduct toward Fry, an employee in the shipping

department, was severe or pervasive. Id. In finding that reasonable minds could conclude that

the shipping supervisor’s comments and actions were sufficiently severe or pervasive, the court

cited to the following alleged comments and conduct, among others, made by the shipping

supervisor toward Fry: supervisor pulled Fry’s face toward his penis when Fry was bent down to

band a pallet, and said that Fry was his “new bitch;” supervisor massaged Fry’s shoulders;

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supervisor put his exposed penis on Fry’s lower back/buttocks when Fry was bent over a pallet

and the back of his pants slipped down and asked if that was how Fry made his significant other

orgasm; supervisor exposed his penis to female employees; supervisor asked Fry to go to store

and pick out a dildo; supervisor grabbed Fry’s breasts after he gained weight; supervisor

“humped” Fry by grabbing his hips and rubbing his penis on Fry’s buttocks when he was bent

over a pallet; and supervisor asked Fry to look at his erect penis under his pants after supervisor

put female employee’s hand on his pants. Id. at *2-*3.

Contrarily, in Wade v. Automation Personnel Servs. Inc., 612 Fed. App’x 291 (6th Cir.

2015), the Sixth Circuit affirmed the granting of summary judgment in favor of the employer,

finding that the employee failed to establish a prima facie claim of hostile work environment

sexual harassment after a female supervisor exposed her breasts to employee, consistently made

inappropriate comments about whether employee was wearing undergarments, and called

employee’s breasts “big hoobie boobies.”

Upon review of these cases where the courts decided as a matter of law whether the

supervisors’ conduct and comments complained of were severe or pervasive, the Court finds that

reasonable minds in the instant case could not find that Defendant Smith’s conduct and

comments rise to the level of severity or pervasiveness necessary to sustain Plaintiff’s hostile

work environment sexual harassment claim. The only instance of a physical touching in the

instant case is Plaintiff’s allegation that Defendant Smith grabbed his hands once three months

after telling him how soft his hands were, which Plaintiff implied meant that Defendant Smith

thought that he had masturbated on them. The other complaint of conduct of repeated salicious

licking of the soda cans was juvenile, crass, and offensive. As were the comments about finding

Plaintiff a boyfriend or girlfriend or Plaintiff being with a girl, Plaintiff holding another

employee’s “weiner” or putting his “weiner” in another employee’s ear, the renter “Richard”

waiting for Plaintiff, and asking Plaintiff to take off his shirt or whether Plaintiff saw another

official nude. When compared to the cases where the courts have found severity or

pervasiveness as a matter of law, reasonable minds could not find that the incidents in this case

rise to the requisite level of severity or pervasiveness.

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The same can be said of the next factors in determining severity; those of the comments

and conduct being physically threatening or humiliating, or a mere offensive utterance.

Defendant Smith’s comments went beyond mere utterances and were somewhat humiliating, but

they were not physically threatening.

Accordingly, even construing all of Plaintiff’s allegations in a light most favorable to

him, the Court finds that while Defendant Smith’s comments and conduct over Plaintiff’s nearly

seven years of employment, were childish, crude and offensive, they did not rise to the level of

sufficiency required to establish a prima facie case of severity or pervasiveness in order to sustain

Plaintiff’s hostile work environment sexual harassment claim. For these reasons, the Court

GRANTS summary judgment in favor of Defendant Smith (ECF Dkt. #19) and DISMISSES

Plaintiff’s hostile work environment sexual harassment claim against him with prejudice.

Since the Court finds that Plaintiff cannot establish a prima facie case of hostile work

environment sexual harassment against Defendant Smith in Count 1 of his complaint, the Court

further GRANTS summary judgment in favor of Defendants on Count 2. ECF Dkt. #19. To the

extent that Plaintiff presents a claim against Defendant Smith in his official capacity, such

official capacity claims are construed as claims against Defendant Trumbull as the governmental

entity. Kentucky v. Graham, 473 U.S. 159, 165-166 (1985). Since the Court holds that Plaintiff

cannot sustain a claim of hostile work environment sexual harassment against Defendant Smith,

claims against him in his official capacity and thus against Defendant Trumbull in Count 2 of

Plaintiff’s complaint for employer liability for Defendant Smith’s conduct are DISMISSED with

prejudice.

B. FIRST AMENDMENT RIGHTS

Defendants also move for summary judgment on the last count of Plaintiff’s complaint in

which he alleges that they violated his First Amendment rights to freedom of speech and freedom

of association. ECF Dkt. #19. Plaintiff alleges that Defendant Smith violated these First

Amendment rights when Defendant Smith threatened him “with job related reprisals” for running

for political office against Defendant Smith’s wife, for not voting the way that Defendant Smith

wanted him to, and for attending political functions of officeholders with whom Defendant Smith

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was upset. ECF Dkt. #1-1 at 6. Plaintiff clarifies in his response to the summary judgment

motion that the job-related reprisal about which he complains in this Count has nothing to do

with resigning his employment. ECF Dkt. #22 at 27. Rather, he alleges that Defendant Smith

threatened to change his employment classification status from a fiduciary employee to a

classified employee which would prohibit him from engaging in political activities. Id. at 28-30.

Plaintiff asserts that “[p]olitical activity is an important part” of his life and taking away his right

to exercise this right is not de minimus or inconsequential and “would chill the ardor of persons

similarly situated to him to participate in the political process.” Id. at 30.

The First Amendment protects against claims of retaliation based on protected speech

(“protected-speech retaliation”) and political affiliation (“political-affiliation retaliation”). Dye v.

Office of the Racing Comm’n., 702 F.3d 286, 294 (6th Cir. 2012). In order to succeed on a First

Amendment retaliation claim, Plaintiff must present a prima facie case of retaliation by showing:

“(1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken

against him that would deter a person of ordinary firmness from continuing to engage in that

conduct; (3) there is a causal connection between elements one and two – that is, the adverse

action was motivated at least in part by his protected conduct.” Id., quoting Scarbrough v.

Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006). If a plaintiff establishes a prima

facie case, the burden then shifts to the employer to show “by a preponderance of the evidence

that the employment decision would have been the same absent the protected conduct.” Benison

v. Ross, 765 F.3d 649, 658 (6th Cir. 2014), quoting Dye, 702 F.3d at 294 (quoting Eckerman v.

Tenn. Dep't of Safety, 636 F.3d 202, 208 (6th Cir.2010)) (internal quotation marks omitted).

After this burden shift, the Court should grant summary judgment if, “in light of the evidence

viewed in the light most favorable to the plaintiff, no reasonable juror could fail to return a

verdict for the defendant.” Benison, 765 F.3d at 658, quoting Dye, 702 F.3d at 294-295.

In their motion for summary judgment in the instant case, Defendants contend that

Plaintiff cannot establish that he suffered an adverse employment action or that it was Defendant

Smith who threatened the adverse action of a job classification modification. ECF Dkt. #23 at

10-11. The Court agrees.

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An adverse employment action in the context of a First Amendment retaliation claim is

one that “would chill or silence a person of ordinary firmness from future First Amendment

activities.” Ctr. For Bio–Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 822 (6th

Cir.2007) (internal quotation marks omitted); see also Burlington N. & Santa Fe R.R. Co. v.

White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). This standard is “distinct” from

the adverse action standard used in traditional employment discrimination claims, and therefore

this Court must “tailor [its] analysis under the adverse action prong to the circumstances of this

specific retaliation claim.” Dye, 702 F.3d at 303–04 (internal quotation marks omitted).

Plaintiff first contends that Defendant Smith told him not to attend political functions of

two officials with whom Defendant Smith was upset. ECF Dkt. #1-1; ECF Dkt. #15-1 at 144.

ECF Dkt. #22 at 29. However, Plaintiff admitted at his deposition that he nevertheless attended

those functions. ECF Dkt. #15-1 at 144. If Plaintiff himself was not deterred or “chilled” from

attending the political functions based upon Defendant Smith’s direct comments, the Court finds

it unlikely that Plaintiff could show that Defendant Smith’s comments constituted an adverse

action against him that would deter a person of ordinary firmness from continuing to engage in

that conduct.

Plaintiff also asserts that Defendant Smith put his arm around him, smacked him on the

back three times, had him sit down, and told Plaintiff that when Plaintiff was in the voting booth

thinking about voting for one candidate, Defendant Smith would be thinking about Plaintiff

voting for the candidate that he wanted. ECF Dkt. #15-1. The Court finds that this also does not

rise to the level of an adverse employment action because Plaintiff cannot show that some

consequence or potential consequence was threatened if he did not vote as Defendant Smith

indicated.

Finally, Plaintiff contends that when he ran for a precinct position against Defendant

Smith’s wife, Defendant Smith threatened to change Plaintiff’s job classification to a

classification that would bar him from participating in partisan politics. ECF Dkt. #22 at 29-30.

However, as Defendants point out, Plaintiff testified in his deposition that it was not Defendant

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Smith, but Attorney Matt Blair, who approached him “and asked me about changing my

position.” ECF Dkt. #15-1 at 156. When Plaintiff was asked about the evidence that he had that

Defendant Smith and Attorney Blair wanted him to change job classifications in order to bar him

from running against Defendant Smith’s wife, Plaintiff testified that, “They wanted me to

change. They asked me.” Id. at 156-157. He explained that “Matt approached me and said,

‘You will be protected if you change classifications.’ That was basically the bottom line there.

And then, on - - let’s see - -“ Id. at 157. When asked if Attorney Blair mentioned Defendant

Smith’s wife when he approached Plaintiff, Plaintiff testified, “No.” Id. When Plaintiff was

asked if Defendant Smith ever talked to Plaintiff “about his wife in the context of switching from

an unclassified” to a classified employee, Plaintiff testified, “No, not about that. He talked about

her another time.” Id. Moreover, Plaintiff testified that he quit the job before any change could

be made. Id. at 159. Plaintiff also confirmed that his resignation of employment was not due to

any First Amendment violations. Id. Thus, Plaintiff presents no genuine issue of material fact

concerning Defendant Smith making comments about changing his job classification because

Plaintiff was running for office against Defendant Smith’s wife. Further, Plaintiff fails to show

that changing his job classification was threatened as he testified that Attorney Blair “asked” him

about changing his job classification, and said that the job classification would be to protect him.

Finally, Plaintiff acknowledges that the job classification did not occur because he resigned his

position for the inappropriate comments before any further discussion or action occurred.

Accordingly, and construing the evidence in a light most favorable to Plaintiff, the Court

finds that Plaintiff fails to show that he suffered an adverse employment action sufficiently

adverse to chill or silence a reasonable person from engaging in future First Amendment

activities.

For these reasons, the Court GRANTS Defendant Smith’s motion for summary judgment

as to Plaintiff’s First Amendment claims. ECF Dkt. #19. Since the Court has found that Plaintiff

cannot sustain his First Amendment claim against Defendant Smith, the claim against Defendant

Trumbull for employer liability as to Defendant Smith also fails as well. The Court thus

GRANTS summary judgment in favor of Defendant Trumbull and dismisses Plaintiff’s First

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Amendment claims against Defendant Trumbull as well. ECF Dkt. #19.

IV. CONCLUSION

For the above reasons, the Court GRANTS Defendants’ motion for summary judgment

(ECF Dkt. #19) and DISMISSES WITH PREJUDICE Plaintiff’s complaint in its entirety against

Defendants.

IT IS SO ORDERED.

Dated: December 27, 2019 /s/George J. Limbert

GEORGE J. LIMBERT

UNITED STATES MAGISTRATE JUDGE

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