The opinion
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ADRIENNE SCHNEIDER, )
) CASE NO. 4:22CV0126
Plaintiff, )
)
v. ) JUDGE BENITA Y. PEARSON
)
TRUMBULL COUNTY VETERANS )
SERVICE COMMISSION, )
) ORDER
Defendant. ) [Resolving ECF No. 35]
Pending before the Court is Defendant’s Motion for Summary Judgment. ECF No. 35.
Plaintiff filed an opposition (ECF No. 37) and Defendant filed a reply (ECF No. 38). Having
reviewed the parties’ briefs, exhibits, and applicable law, the Court grants Defendant’s Motion
for Summary Judgment as to Plaintiff’s Counts I and III and denies summary judgment as to
Plaintiff’s Counts II and IV.1
I. Background
Plaintiff Adrienne Schneider filed a complaint alleging Title VII and Ohio state law
sexual harassment and retaliation claims against her former employer, Defendant Trumbull
County Veterans Service Commission (“TCVSC”). See ECF No. 1. From March 11, 2019, until
May 7, 2020, Plaintiff worked as an office administrator for Defendant. ECF No. 37 at PageID
#: 1352, 1358. Throughout her tenure at TCVSC, Plaintiff was directly supervised by Cari
1 Plaintiff’s Counts I and III allege sexual harassment and retaliation, respectively,
in violation of Title VII. Plaintiff’s Counts II and IV allege sexual harassment and
retaliation, respectively, in violation of Ohio state law.
Delgado, TCVSC’s Deputy Director, who reported to Herman Breuer, TCVSC’s Executive
Director. ECF No. 29 at PageID #: 578 (Cari Delgado Tr.). As a TCVSC office administrator,
Plaintiff’s duties consisted of greeting veterans or clients who came into the office, answering
and transferring phone calls, scheduling appointments, and other administrative duties. ECF No.
28 at PageID #: 227 (Adrienne Schneider Tr.); ECF No. 29 at PageID #: 578 (Cari Delgado Tr.).
Given the nature of her job duties, Plaintiff often interacted with TCVSC service officers
including Mark Isenberg, Chris Buydos, Chuck Ciapala, and Herman Breuer. ECF No. 28 at
PageID #: 238 (Adrienne Schneider Tr.).
Plaintiff alleges that between July 2019 and February 20, 2020, Mark Isenberg, a Senior
Services Officer at TCVSC, sexually harassed her on multiple occasions. ECF No. 37 at PageID
#: 1353. During Plaintiff’s deposition, Plaintiff elaborated on the myriad encounters when she
was harassed by Mr. Isenberg. See ECF No. 28. In her written grievance, Plaintiff detailed that
Mr. Isenberg’s behavior included verbal and written lewd comments and inappropriate physical
touching, all of which left Plaintiff feeling “intimidated and uncomfortable.” ECF No. 37-3 at
PageID #: 1378.
Plaintiff describes multiple instances when Mr. Isenberg verbalized or wrote lewd
comments directed at her. The following highlight only some of the examples that Plaintiff
provides:
1. Mr. Isenberg “would write sexual gestures on yellow sticky notes and show them to
[Plaintiff], then rip them off, chew them up, and spit them in the trash can, and he told
[Plaintiff] that way they couldn’t be used for evidence.” ECF No. 28 at PageID #:
257–58 (Adrienne Schneider Tr.). On one of these sticky notes, Mr. Isenberg wrote
“You’re so fucking hot. I want to kiss you today. You’re sexy.” ECF No. 28 at
PageID #: 319 (Adrienne Schneider Tr.).
2. Mr. Isenberg commented to Plaintiff that he could see where her “daughters get their
good looks from” and that her daughters “had nice asses.” ECF No. 28 at PageID #:
307 (Adrienne Schneider Tr.).
3. On a few occasions “in a hallway in passing or when he wrote the comment on a
yellow stick note,” Mr. Isenberg “would walk mail over to the post office behind the
building and walk past [Plaintiff] and sa[y], oh, I haven’t sexually harassed you
today.” ECF No. 28 at PageID #: 318 (Adrienne Schneider Tr.).
4. Mr. Isenberg frequently communicated to Plaintiff that he was in love with her, and
that once he started making those comments, he would make them “maybe once a
week.” ECF No. 28 at PageID #: 323 (Adrienne Schneider Tr.).
5. Mr. Isenberg also told Plaintiff that “I’m watching you on the camera.” ECF No. 28
at PageID #: 324 (Adrienne Schneider Tr.).
6. On another occasion, Mr. Isenberg asked Plaintiff if he could buy her “something
nice to slip into,” referring to lingerie. ECF No. 28 at PageID #: 333 (Adrienne
Schneider Tr.).
7. One day when Mr. Isenberg ran into Plaintiff in the hallway, as Mr. Isenberg was
exiting the lunchroom, Mr. Isenberg told Plaintiff that he wanted to kiss her ankles.
ECF No. 28 at PageID #: 334 (Adrienne Schneider Tr.).
8. Once, Mr. Isenberg asked Plaintiff to send him nude photographs of herself to his
phone. ECF No. 28 at PageID #: 336 (Adrienne Schneider Tr.).
9. Mr. Isenberg was seated at his desk in his office one day when Plaintiff was in his
office, and Mr. Isenberg told Plaintiff that he had an erection under his desk. ECF
No. 28 at PageID #: 342 (Adrienne Schneider Tr.).
10. Another time when Plaintiff was in Mr. Isenberg’s office, “he told [her] to shut the
door and we can do it on his desk or maybe somewhere like the community room
where no one is.” ECF No. 28 at PageID #: 343 (Adrienne Schneider Tr.).
11. Mr. Isenberg, in the presence of at least one other co-worker, told Plaintiff that he
wanted to make her “his sex slave” and keep her “locked up in a box in his
basement.” ECF No. 28 at PageID #: 347 (Adrienne Schneider Tr.).
Plaintiff alleges that Mr. Isenberg’s harassment was not limited to verbal comments, but
that he also initiated inappropriate and unwelcomed physical touch. The following are examples
of instances when Mr. Isenberg initiated non-consensual physical contact:
1. On several occasions, Mr. Isenberg would approach Plaintiff and touch her on her
shoulder with his finger puppet elephant while telling her that he was falling in love
with her. ECF No. 28 at PageID #: 238, 288 (Adrienne Schneider Tr.).
2. On or around Christmas 2019 when TCVSC employees gathered to celebrate the
holidays, Mr. Isenberg moved close to Plaintiff, rubbed her left upper thigh with his
hand, and asked her “to meet him outside for a kiss in the parking lot.” ECF No. 28
at PageID #: 291–92 (Adrienne Schneider Tr.). Plaintiff stated that it all happened so
fast that she did not have an opportunity to push him away. ECF No. 28 at PageID #:
292 (Adrienne Schneider Tr.). She remained seated, finished her drink, and went
home. ECF No. 28 at PageID #: 292 (Adrienne Schneider Tr.).
3. Once when Mr. Isenberg and Plaintiff were both in his office, he grabbed her hand
and kissed it. ECF No. 28 at PageID #: 293 (Adrienne Schneider Tr.). When this
happened, Plaintiff remembered that she froze and felt a “feeling of panic.” ECF No.
28 at PageID #: 295 (Adrienne Schneider Tr.).
Although Mr. Isenberg mostly harassed Plaintiff when there were either no other
witnesses nearby or out of the earshot of potential witnesses, Plaintiff notes that there were times
when "[o]ther co-workers [saw] his behavior and replied how inappropriate it was what he said,
but walk[ed] away." ECF No. 28 at PageID #: 350 (Adrienne Schneider Tr.). She also believes
that at least one other service officer, Chuck Ciapala, “may have seen a few things” regarding
Mr. Isenberg’s harassment of Plaintiff. ECF No. 28 at PageID #: 354 (Adrienne Schneider Tr.).
One instance of when other co-workers were likely aware of Mr. Isenberg’s inappropriate
behavior was on or around Thanksgiving 2019 when TCVSC employees gathered to have a drink
before the holidays at the VFW bar. At some point during this get-together, Mr. Isenberg told
Chuck Ciapala and Chris Buydos that Plaintiff’s “bird’s been stuffed six times.” ECF No. 28 at
PageID #: 289 (Adrienne Schneider Tr.). Additionally, when Mr. Isenberg made the comment
about wanting Plaintiff to be “his sex slave,” Plaintiff stated that Tommy D., a TCVSC van
driver, heard it and laughed it off with Mr. Isenberg. ECF No. 28 at PageID #: 348 (Adrienne
Schneider Tr.).
On February 20, 2020, Plaintiff reported the sexual harassment to Ms. Delgado, who was
Plaintiff’s direct supervisor at the time. Plaintiff, who was joined by her then fiancé and now
husband, met with Ms. Delgado on February 20, 2020 and remembers relaying the following
details of the ongoing sexual harassment that Plaintiff was experiencing:
I remember telling her about the sticky notes that he would write
sexual gestures on or comments. I told her that he had asked me to
send nude photos to his phone. I also told her that he had an
erection underneath his desk that he made me aware of. I had
advised her of the finger puppet, coming into my office space and
telling me that he had spoke with his therapist and that he wasn’t
able to touch me, but only with his finger puppet, he could. . . I
believe I told her about the gala and that he had been watching me
at the gala.
ECF No. 28 at PageID #: 287–88 (Adrienne Schneider Tr.). Plaintiff is adamant that Mr.
Isenberg’s actions towards her were unwelcomed. Ms. Delgado asked Plaintiff to provide a
written statement that she could share with Mr. Breuer at a later time. Plaintiff provided Ms.
Delgado with a written statement on February 21, 2020, detailing the various instances of sexual
harassment by her co-worker, Senior Service Officer Mark Isenberg. ECF No. 37-3.
After receiving Plaintiff’s written account of allegations against Mr. Isenberg, Ms.
Delgado informed Mr. Breuer about the existence of the sexual harassment complaint but did not
share all the details or Plaintiff’s written complaint with Mr. Breuer. In response, Mr. Breuer
issued Mr. Isenberg a written reprimand on February 21, 2020 and told him to stay away from
Plaintiff. ECF No. 35-1 at PageID #: 1052; ECF No. 37 at PageID #: 1356. This occurred
before Mr. Breuer had reviewed Plaintiff’s written complaint. Mr. Breuer’s written reprimand
noted that Plaintiff “has expressed that comments made by Mark Isenberg have been of a nature
that makes her uncomfortable. She expressed this behavior has happened on more than one
occasion.” ECF No. 37-2 at PageID #: 1375. After issuing the reprimand, Mr. Breuer told Mr.
Isenberg that they would discuss the situation further after Mr. Breuer returned to the office
because Mr. Breuer was in Washington D.C. at the time. ECF No. 35-1 at PageID #: 1052.
On February 25, 2020, Mr. Breuer was finally privy to the details of Plaintiff’s written
complaint when Ms. Delgado called Mr. Breuer over the phone and verbally read Plaintiff’s
written complaint to him. After realizing the severity of the allegations, Mr. Breuer decided to
reach out to the human resources department of Trumbull County for further guidance on
handling the sexual harassment complaint. ECF No. 35-1 at PageID #: 1052. Richard Jackson
in the Trumbull County human resources department advised Mr. Breuer to instruct Plaintiff and
Mr. Isenberg to “‘knock it off,’ because Mr. Jackson deemed it to be “mutual behavior” based on
the circumstances of which he was made aware. ECF No. 37 at PageID #: 1356. Deciding to
follow this advice, Mr. Breuer met with Plaintiff and Mr. Isenberg together in his office and
informed them that “they would not be permitted to interact with one another in the future.”
ECF No. 37 at PageID #: 1356. During an executive session, Mr. Breuer read Plaintiff’s written
complaint to the Veterans Service Commission Board and described the steps he had taken in
response. ECF No. 35-1 at PageID #: 1053. The Board was satisfied with the action that Mr.
Breuer had taken. ECF No. 35-1 at PageID #: 1053.
After being reprimanded, Mr. Isenberg ceased harassing Plaintiff. Neither Mr. Breuer
nor any other representative of Defendant pursued further investigation of the matter. ECF No.
37 at PageID #: 1357. Plaintiff and Mr. Isenberg both remained employed at TCVSC but were
intentionally scheduled to come into the office at different times to ensure that they would not
have contact with one another. ECF No. 37 at PageID #: 1357; ECF No. 29 at PageID #: 730
(Cari Delgado Tr.).
In mid-March 2020, COVID-19 nearly paralyzed the entire country, and Defendant
closed its office on March 23, 2020. ECF No. 35-1 at PageID #: 1054. Between March 20, 2020
and April 12, 2020, Plaintiff stayed home and did not work, but still received full pay. ECF No.
35-1 at PageID #: 1054. Beginning April 13, 2020, Plaintiff worked for three hours per day at
the office and received full pay. ECF No. 35-1 at PageID #: 1054. On April 28, 2020, Mr.
Breuer and Ms. Delgado received a financial impact letter from the Trumbull County Board of
Commissioners in which they were instructed to decrease their spending by 10%. ECF No. 29 at
PageID #: 703–704 (Cari Delgado Tr.). The letter did not specifically instruct TCVSC to
conduct layoffs. Nonetheless, to meet the new budget mandate, Mr. Breuer made the decision to
terminate Plaintiff’s employment on May 7, 2020.2
Plaintiff brought this action claiming that Defendant is liable for its inadequate response
to her sexual harassment claims and for retaliating against her by terminating her employment
because she came forward with a complaint of sexual harassment. Defendant filed a Second
Amended Answer to clarify that it does not qualify as an “employer”, as defined by Title VII
(ECF No. 22). The Court granted Plaintiff additional time for discovery to explore Defendant’s
newly pled defense. ECF No. 31. Defendant then filed a Motion for Summary Judgment
arguing that all of Plaintiff’s claims should be dismissed because Defendant does not qualify as
an employer under the Title VII definition. See ECF No. 35. Alternatively, Defendant contends
that even if the Court finds that it is considered an employer under Title VII, Defendant is not
liable for Plaintiff’s sexual harassment and retaliation claims under Title VII and Ohio state law.
See ECF No. 35; ECF No. 38. Plaintiff filed an opposition arguing that there are genuine
disputes of material fact, and, therefore, the Court should deny summary judgment. ECF No. 37.
II. Standard of Review
Federal Rule of Civil Procedure 56(a) instructs courts to grant summary judgment only
“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). In other words, “after adequate
2 Plaintiff alleges that she was the only employee considered for lay off and that
none of the other TCVSC employees were considered. ECF No. 37 at PageID #: 1368.
Defendant does not dispute this allegation.
time for discovery and upon motion, [the Court will enter summary judgment] against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A fact is “material” only if its resolution will affect the
outcome of the lawsuit. Scott v. Harris, 550 U.S. 372, 380 (2007). In determining whether a
factual issue is “genuine,” the Court assesses whether the evidence is such that a reasonable jury
could find that the non-moving party is entitled to a verdict. Scott v. Harris, 550 U.S. 372, 380
(2007).
To survive summary judgment, the non-moving party “must ‘do more than simply show
that there is some metaphysical doubt as to the material facts.’” Baker v. City of Trenton, 936
F.3d 523, 529 (6th Cir. 2019) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)). Once the movant makes a properly supported motion, the burden
shifts to the non-moving party to demonstrate the existence of a genuine dispute. The non-
moving party must go beyond the pleadings to designate specific facts found in the record that
demonstrate genuine issues for trial, which may include affidavits, declarations, depositions,
answers to interrogatories, or admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986) (citing Fed. R. Civ. P. 56(c)); see also KSA Enterprises, Inc. v. Branch Banking & Tr.
Co., 761 F. App'x 456, 464 (6th Cir. 2019). “If a party fails to properly support an assertion of
fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the
court may . . . consider the fact undisputed for the purposes of the motion.” Fed. R. Civ. P.
56(e)(2). “The mere existence of a scintilla of evidence in support of the plaintiff's position will
be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 613 (6th Cir. 2013) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). In analyzing a motion for summary judgment,
the Court “must view the evidence in the light most favorable to the nonmoving party.” Lossia
v. Flagstar Bancorp, Inc., 895 F.3d 423, 428 (6th Cir. 2018) (citing Latits v. Phillips, 878 F.3d
541, 547 (6th Cir. 2017)).
III. Discussion
A. Title VII Employer
The parties disagree on whether Defendant is liable as an employer under Title VII, but
they do not dispute that Defendant is an employer liable under Ohio Rev. Code § 4112.013.
Defendant asserts that the records disclosed during discovery show that in the relevant years,
Defendant never had more than thirteen employees, which removes its qualification as an
“employer” under Title VII. Title VII defines “employer” as “a person engaged in an industry
affecting commerce who has fifteen or more employees for each working day in each of twenty
or more calendar weeks in the current or preceding calendar year, and any agent of such a
person.” 42 U.S.C. § 2000e. If Defendant is not considered an employer under Title VII, it
cannot be held liable for Plaintiff’s Title VII claims. Plaintiff asserts two main arguments to
support its claim that Defendant has more than fifteen employees and should be considered an
employer for the purpose of Title VII liability.
First, Plaintiff argues that Defendant should be considered an employer under Title VII
because TCVSC is a department of Trumbull County, therefore, “all of its employees are county
employees and Trumbull County employs well over 15 individuals.” ECF No. 37 at PageID #:
3 Under Ohio Revised Code § 4112.01, an employer includes “the state, any
political subdivision of the state, or a person employing four or more persons within the
state, and any agent of the state, political subdivision, or person.” Ohio Rev. Code §
4112.01. It is undisputed that TCVSC had at least four employees at all relevant times.
1360. “The determination of whether a particular entity is an employer of a Title VII plaintiff
involves an examination of whether the alleged employer exercises control over the manner and
means of the plaintiff's work.” Sutherland v. Michigan Dep't of Treasury, 344 F.3d 603, 612
(6th Cir. 2003) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992)). The
Sixth Circuit has recognized four factors that courts must consider to determine whether to treat
two entities as a single employer, including “(1) interrelation of operations, i.e., common offices,
common record keeping, shared bank accounts and equipment; (2) common management,
common directors and boards; (3) centralized control of labor relations and personnel; and (4)
common ownership and financial control.” Swallows v. Barnes & Noble Book Stores, Inc., 128
F.3d 990, 993–94 (6th Cir. 1997). Although none of these factors are outcome determinative and
they do not all need to be met, “control over labor relations is a central concern.” Id. at 994.
It is worth noting that Plaintiff has only brought claims against TCVSC and has not
joined Trumbull County as a defendant. Nevertheless, Plaintiff claims that the employees of
Trumbull County can be aggregated with those specific to Defendant for the purpose of Title VII
liability. To support her claim that TCVSC is a department of Trumbull County, Plaintiff states
that “Trumbull County pays [TCVSC] workers and provides their benefits.” ECF No. 37 at
PageID #: 1360. Plaintiff also points out that Steven Charles, an administrative assistant in
Trumbull County’s human resources department, stated during his deposition that Plaintiff
“counted as one of the County employees” when the decision was made to terminate her
employment with Defendant. Plaintiff also argues that Herman Breuer and Cari Delgado both
self-identified as county employees and that they relied on the human resources department of
Trumbull County for advice on handling Plaintiff’s sexual harassment complaint are indications
that TCVSC employees are Trumbull County employees.
Defendant argues that Trumbull County and TCVSC are not joint employers, and,
therefore, Trumbull County employees cannot be included in Defendant’s overall employee
headcount. Despite Trumbull County providing a few centralized services to TCVSC, including
payroll processing and benefits administration, TCVSC is its own autonomous entity and
Trumbull County does not control the manner and means by which TCVSC operates. Steven
Charles testified in his deposition that TCVSC has its own hiring and termination authority, and
it does not need approval from the county commissioners. For example, Mr. Breuer was able to
terminate Plaintiff’s employment without getting any sort of approval from Trumbull County.
Although Mr. Breuer had reached out to the Trumbull County human resources department for
advice on handling Plaintiff’s sexual harassment complaint, Mr. Breuer was ultimately the
decisionmaker making the determination on behalf of TCVSC. Trumbull County was merely an
advisor and had no authority to demand that Mr. Breuer take any specific action. Furthermore,
TCVSC has its own board of commissioners who are appointed by judges, separate from the
county’s board of commissioners.
Ohio boards of county commissioners oversee the funding of veterans service
commissions in Ohio. Veterans service commissions make their own day-to-day operational
decisions without county commissioners’ approval. See Ohio Rev. Code § 5901.07. Trumbull
County may oversee the Trumbull County Veterans Services Commission to ensure that it
complies with applicable law and may offer some of its resources, but its authority over
TCVSC’s decisions is limited. See Lynch v. Gallia Cty. Bd. of Commrs., 1997-Ohio-392, 79
Ohio St. 3d 251, 258, 680 N.E.2d 1222, 1227 (discussing the General Assembly’s intent for the
relationship between boards of county commissioners and veterans service commissions, the
Ohio Supreme Court provided “the General Assembly has balanced the veterans service
commissions' mandate with a power in the boards of county commissioners to review the budget,
and to reject it in the case of any failure to conform to applicable law. However, boards of
county commissioners are not permitted to revise lawful veterans service commission budgets.”).
Trumbull County employees cannot be aggregated with TCVSC employees for the purpose of
holding Defendant liable under Title VII because the two entities are not joint employers.
Alternatively, Plaintiff argues that even if the Court does not find that TCVSC employees
are Trumbull County employees, the five commissioners overseeing TCVSC and the one
security guard whose salary is partially paid by the Sheriff’s office are considered Defendant’s
employees for the purpose of Title VII liability. Counting these six people as Defendant’s
employees would put the total number of its employees above the fifteen-employee threshold
mandated by Title VII.
Ohio Rev. Code § 5901.02 provides:
In each county there shall be a commission known as “the veterans
service commission.” Except as provided in section 5901.021 of
the Revised Code, the commission shall be composed of five
residents of the county appointed to five-year terms by a judge of
the court of common pleas. At the time of appointment or
reappointment to the commission, no commission member
appointed under this section shall be an employee of the
commission or hold an elective or other appointive office of the
county served by the commission.
Ohio Rev. Code § 5901.02. In accord with the reading of the Ohio statute, Defendant contends
that the five commissioners are not Defendant’s employees because they are not hired by
TCVSC, but rather appointed by a judge of the Court Common Pleas pursuant to Ohio Rev.
Code § 5901.02. Defendant also adds that “TCVSC does not ‘supervise’ the commissioners, and
there is no one higher in the organization than the commission. Commissioners do not simply
influence the organization, they control it.” ECF No. 35-1 at PageID #: 1056. Defendant
therefore maintains that it “had fewer than fifteen employees at all times during 2018, 2019 and
2020.” ECF No. 35-1 at PageID #: 1055.
Plaintiff and Defendant concur that the veterans service commissioners handle TCVSC
operations, which includes benefits, and establishing policies and procedures. ECF No. 35-1 at
PageID #: 1056; ECF No. 37 at PageID #: 1360. It is also true that “Commissioners provided
input on what to do about Schneider’s sexual harassment complaint and ratified the decision to
terminate Schneider’s employment.” ECF No. 37 at PageID #: 1361. Nevertheless, the Court
finds that the plain language of the Ohio statute makes it clear that the five appointed veterans
service commissioners are not employees of TCVSC despite their oversight of TCVSC. Thus,
the commissioners cannot be counted towards Defendant’s total number of employees for the
purpose of Title VII liability. Given that the Court finds that the five commissioners are not
employees of TCVSC, Defendant fails to meet the numerosity requirement of a Title VII
employer. This conclusion is unchanged even if the individual security guard, who is jointly
employed by both TCVSC and the Sheriff’s Office, is included in Defendant’s employee
headcount.
Regarding the application of Title VII, the Court finds as a matter of law that Defendant
is not subject to liability under Title VII because it did not have at least fifteen employees at the
relevant times to be considered an employer as defined by Title VII. See 42 U.S.C. § 2000e.
Because Defendant is not an employer liable under Title VII, Plaintiff’s Title VII claims must be
dismissed. The Court, therefore, will not evaluate the merits of Plaintiff’s sexual harassment and
retaliation claims under Title VII.4
4 It is worth noting that had Plaintiff been able to establish the applicability of Title
VII, the ruling on those claims would mirror those reached for the Ohio state law claims.
B. Sexual Harassment and Retaliation
Because all federal claims in this matter are dismissed, only Plaintiff’s state law claims
remain. Under these circumstances, the Court has discretion when determining whether to
exercise 28 U.S.C. § 1367(a) jurisdiction over supplemental state law claims after dismissing the
federal claims that gave rise to its original jurisdiction. Orton v. Johnny's Lunch Franchise,
LLC, 668 F.3d 843, 850 (6th Cir. 2012) (citing Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
635 (2009)). Given that “[t]he Ohio Supreme Court has ruled that federal case law interpreting
and applying Title VII is generally applicable to cases involving [R.C. Chapter] 4112,” the Court
elects to maintain jurisdiction over Plaintiff’s state law claims. Vance v. Ball State Univ., 570
U.S. 421, 424 (2013). Plaintiff’s state law claims include Count II and Count IV. Count II
alleges discrimination on the basis of sex through the creation of a hostile work environment in
violation of Ohio Rev. Code § 4112.02(A). Count IV alleges retaliation in violation of Ohio
Rev. Code § 4112.02(I).
i. Sexual Harassment
In Count II, Plaintiff claims that Defendant created and sustained a hostile work
environment by ratifying the sexual harassment that she suffered. Ohio Rev. Code § 4112.02(A)
provides, in relevant part,
For any employer, because of the . . . sex . . . of any person, . . . to
discriminate against that person with respect to hire, tenure, terms,
conditions, or privileges of employment, or any matter directly or
indirectly related to employment.
Ohio Rev. Code § 4112.02. The Ohio Supreme Court has held that one of the ways to establish a
violation of Ohio Rev. Code § 4112.02(A) is by proving “ ‘hostile environment’ harassment, i.e.,
harassment that, while not affecting economic benefits, has the purpose or effect of creating a
hostile or abusive working environment.” Hampel v. Food Ingredients Specialties, Inc., 2000-
Ohio-128, 89 Ohio St. 3d 169, 176, 729 N.E.2d 726, 732. To establish a prima facie case of
hostile-environment sexual harassment, not only must Plaintiff show that she is a member of a
protected class, but she must also 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 . . . 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.
Hampel v. Food Ingredients Specialties, Inc., 2000-Ohio-128, 89 Ohio St. 3d 169, 176–77, 729
N.E.2d 726, 732–33; see also Wyatt v. Nissan N. Am., Inc., 999 F.3d 400, 411 (6th Cir. 2021). In
this case, Plaintiff was allegedly harassed by a co-worker, as opposed to a supervisor. To hold
Defendant liable for Mr. Isenberg’s harassing conduct, Plaintiff “must show that the employer's
response to the plaintiff's complaints ‘manifest[ed] indifference or unreasonableness in light of
the facts the employer knew or should have known.’ ” Wyatt v. Nissan N. Am., Inc., 999 F.3d
400, 417 (6th Cir. 2021) (quoting Waldo v. Consumers Energy Co., 726 F.3d 802, 814 (6th Cir.
2013)).
The parties concede that Plaintiff has established that she experienced unwelcome
harassment based on sex and 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.’” Hampel v. Food Ingredients Specialties, Inc., 2000-Ohio-128, 89 Ohio
St. 3d 169, 176–77, 729 N.E.2d 726, 732–33. It is disputed, however, whether Defendant knew
about Plaintiff’s harassment prior to Plaintiff’s formal report and whether it responded
appropriately after receiving Plaintiff’s sexual harassment grievance. Defendant argues that it
did not know or have any reason to know about the sexual harassment prior to Plaintiff reporting
it to Ms. Delgado on February 20, 2020. It also contends that it took immediate and appropriate
corrective action which ended the alleged harassment. Plaintiff claims that Defendant knew or
should have known about the alleged sexual harassment prior to her February 20, 2020 report.
She also argues that Defendant’s failure to conduct an investigation and substantiate Plaintiff’s
claims must be factored into determining Defendant’s liability.
Plaintiff provided examples of instances when Mr. Isenberg made harassing comments to
her in front of other co-workers prior to her reporting his inappropriate behavior on February 20,
2020. For example, when Mr. Isenberg told Plaintiff that he wanted to make Plaintiff “his sex
slave” and keep her “locked up in a box in his basement,” another TCVSC employee, Tommy D.
was present. ECF No. 28 at PageID #: 347 (Adrienne Schneider Tr.). There were other times
when Mr. Isenberg would allegedly harass Plaintiff while she was sitting at her desk and other
co-workers such as Robin LeDuc and Chuck Ciapala were within earshot. Mr. Ciapala definitely
heard Mr. Isenberg’s unwarranted comments directed at Plaintiff because Mr. Ciapala seemed to
encourage Mr. Isenberg’s behavior by saying “well, there you go. She’s not married, so keep at
it.” ECF No. 28 at PageID #: 350–51. Additionally, Plaintiff points to statements that Mr.
Breuer and Ms. Delgado made during their respective depositions, which indicate that the
Executive Director and Deputy Director of TCVSC were under the impression that “something
was going on” between Plaintiff and Mr. Isenberg. ECF No. 37 at PageID #: 1363. Perhaps
none of these facts alone are smoking guns in and of themselves, but the culmination of these
facts is sufficient to demonstrate the existence of a genuine dispute of material fact with regard to
whether Defendant knew or should have known about the ongoing sexual harassment that
Plaintiff was suffering.
The parties stipulate that Mr. Isenberg stopped harassing Plaintiff after she reported his
unwelcomed behavior on February 20, 2020. ECF No. 40 at PageID #: 1432. The Sixth Circuit
has held that an employer’s response is “generally adequate . . . if it is ‘reasonably calculated to
end the harassment.’” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 340 (6th Cir. 2008)
(quoting Jackson v. Quanex Corp., 191 F.3d 647, 663–64 (6th Cir. 1999)). Defendant argues
that its response was adequate because the sexual harassment ceased after Mr. Breuer
reprimanded Mr. Isenberg. Plaintiff argues that Defendant’s response was nevertheless
inadequate because Defendant never bothered to conduct an investigation or attempt to
substantiate Plaintiff’s claims. Furthermore, if Defendant knew or had reason to know that Mr.
Isenberg was sexually harassing Plaintiff, it did not take immediate corrective action until after
Plaintiff made her formal report. Mr. Breuer merely issued a written reprimand and met with
Mr. Isenberg regarding Plaintiff’s complaint, but he neither made it known to Mr. Isenberg that
Plaintiff specifically reported sexual harassment, nor did he conduct any further investigation
and attempt to substantiate Plaintiff’s claims. Reasonable minds may find that Mr. Breuer’s
actions were not reasonably calculated to end the harassment given that Defendant’s response to
Plaintiff’s sexual harassment grievances was essentially issuing Mr. Isenberg only a symbolic
slap on the wrist.
For the reasons above, the Court finds that Defendant’s knowledge of the harassment and
the adequacy of its response to Plaintiff’s report of the harassment are questions for a jury. The
Court denies summary judgment as to Plaintiff’s Count II.
ii. Retaliation
In Count IV, Plaintiff alleges that Defendant retaliated against her by terminating her
employment after she reported being sexually harassed by Senior Service Officer Mark Isenberg.
Ohio Rev. Code § 4112.02(I) provides, in relevant part, that it is unlawful for an employer “to
discriminate in any manner against any other person because that person has opposed any
unlawful discriminatory practice defined in this section.” Ohio Rev. Code § 4112.02(I). The
Ohio Supreme Court has held that in order for Plaintiff to establish a prima facie case of
retaliation, she “must prove that (1) she engaged in a protected activity, (2) the defending party
was aware that the claimant had engaged in that activity, (3) the defending party took an adverse
employment action against the employee, and (4) there is a causal connection between the
protected activity and adverse action.” Greer-Burger v. Temesi, 2007-Ohio-6442, ¶¶ 13-14, 116
Ohio St. 3d 324, 327, 879 N.E.2d 174, 180. Applying the McDonnell Douglas framework, “[i]f
a complainant establishes a prima facie case, the burden then shifts to the employer to ‘articulate
some legitimate, nondiscriminatory reason’ for its actions.” Id. (quoting McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). “If the employer satisfies this burden, the burden
shifts back to the complainant to demonstrate ‘that the proffered reason was not the true reason
for the employment decision.’” Id. (quoting Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 256 (1981)).
It is undisputed that Plaintiff engaged in the protected activity of lodging a sexual
harassment complaint against a co-worker by reporting Mr. Isenberg’s harassing conduct to Ms.
Delgado, making Defendant aware that she engaged in such an activity. On May 7, 2020,
Defendant took an adverse employment action against Plaintiff by terminating Plaintiff’s
employment. Defendant argues that there is no causal connection between the protected activity
and the adverse action because Plaintiff’s termination was a result of budget cuts and the
COVID-19 pandemic, rather than because of Plaintiff’s sexual harassment complaint. Plaintiff
argues that the temporal proximity between Plaintiff’s sexual harassment report and her
termination precludes summary judgment. See ECF No. 37 at PageID #: 1367.
There was only roughly two and a half months between Plaintiff’s sexual harassment
report and her termination. Defendant rebuts that although under normal circumstances, the
temporal proximity argument may be persuasive, given the COVID-19 pandemic that was
impacting the entire country at the time, the circumstances were anything but normal.
Additionally, Defendant argues that Plaintiff was paid her full salary every week between March
20, 2020 and April 13, 2020 despite not performing any work during that time. ECF No. 35-1 at
PageID #: 1062. Between April 13, 2020 and May 7, 2020, Plaintiff was only working three
hours a day and still received full-time pay. ECF No. 35-1 at PageID #: 1062. Months after
laying off Plaintiff, Defendant abolished Plaintiff’s administrative coordinator position in
September 2021. ECF No. 35-1 at PageID #: 1064.
Although Defendant, along with the rest of the nation, was faced with unprecedented
circumstances brought on by the COVID-19 pandemic, Plaintiff rebuts by relaying (without
dispute) that she was the only TCVSC employee laid off around the time that Defendant
terminated her employment. Plaintiff’s workload did decrease as a result of the pandemic, but
she was not unique in this respect. The workload decreased for the entire TCVSC office. ECF
No. 30 at PageID #: 893 (Herman Breuer Tr.). Furthermore, Mr. Breuer, who was allegedly
friends with Mr. Isenberg even outside of the work setting, laid off Plaintiff for budget cut
reasons even though Plaintiff’s salary was nowhere close to the amount of the budget that
TCVSC was instructed to reduce. It is disputed whether Mr. Breuer consulted with Ms. Delgado
and TCVSC commissioners prior to informing Plaintiff that her employment was terminated.
Given that there are genuine disputed material facts relevant to Plaintiff’s retaliation
claim, the Court denies summary judgment on Plaintiff’s Count IV. The claim will be heard by a
jury.
IV. Conclusion
Accordingly, the Court hereby grants Defendant’s Motion for Summary Judgment (ECF
No. 35) in part and denies it in part. The Court grants summary judgment in favor of Defendant
on Plaintiff’s Counts I and III, dismissing these federal claims because the Court finds that
Defendant does not qualify as an employer under Title VII. The Court denies summary
judgment on Plaintiff’s Counts II and IV, the state-law claims because there are genuine disputes
of material facts regarding these claims. Exercising its discretion to do so, the Court maintains
supplemental jurisdiction over the state law claims. The Final Pretrial Conference will be
conducted March 15, 2023 at 10:00 a.m., as scheduled, Trial by jury will follow.
IT IS SO ORDERED.
March 14, 2023 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge