Patterson v. Easton Motorcars LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

EVA M. PATTERSON,

:

Plaintiff,

Case No. 2:19-cv-2944

v. Judge Sarah D. Morrison

Chief Magistrate Judge Elizabeth

P. Deavers

EASTON MOTORCARS, LLC,

:

Defendant.

OPINION AND ORDER

This matter is before the Court on the Motion for Summary Judgment of

Defendant Easton Motorcars, LLC (“Easton”). (Mot., ECF No. 53.) Plaintiff Eva M.

Patterson responded (Resp., ECF No. 55), and Easton filed its reply (Reply, ECF No.

58). The Motion is now ripe for a decision.

Ms. Patterson was previously employed by Easton as a sales consultant. She

filed this action alleging that Easton discriminated against her on the basis of sex,

subjected her to quid pro quo sexual harassment and a hostile work environment,

and intentionally inflicted emotional distress upon her. (Compl., ECF No. 3.) Easton

moves for summary judgment on all claims. For the reasons set forth below,

Easton’s Motion is GRANTED.

I. FACTUAL BACKGROUND

Easton, a Kia dealership located in Columbus, Ohio, hired Ms. Patterson as a

sales consultant on July 30, 2018. (Patterson Dep., ECF No. 50, 15:24–16:5.)

Easton’s General Sales Manager Landon Bentley hired Ms. Patterson “after a

15-minute interview[.]” (Id., 21:14–19; Santone Dep., ECF No. 49, 32:16–17, 75:4–

6.) Mr. Bentley advised Ms. Patterson during the interview that sales consultants

were expected to sell around twenty cars each month.1 (Patterson Dep., 30:9:17.)

Sales were tracked on a whiteboard in the dealership—“[i]t had everybody’s name

on it and everybody’s sales . . . You would just add a mark for every new car [sold].”

(Id., 31:1–7.) Easton does not assign customers to its sales consultants; instead,

whoever approaches a prospective customer first assists with the sale. (Id., 102:16–

17; Bentley Dep., ECF No. 51, 8:18.)

As an Easton sales consultant, Ms. Patterson reported to sales managers

Landon Bentley and Alan Pecjak and finance manager, Robert DeBolt. (Patterson

Dep., 33:13–17.) Messrs. Bentley, Pecjak, and DeBolt reported to general manager

Paul Santone, who reported directly to Easton’s owner, Joey Huang. (Id., 34:1–11.)

Ms. Patterson was terminated just forty-four days after she was hired, on

September 12, 2018. (Id., 15:24–16:5.)

A. Sales Performance

Before being allowed to sell cars, an Easton sales consultant must pass a

series of online product knowledge tests, referred to as Kia University. (Patterson

Dep., 36:9–14; Santone Dep., 16:8–13.) Ms. Patterson passed the Kia University

1 Mr. Santone testified that new sales consultants are expected to sell only

ten to twelve cars per month, but the expectation rises for individuals with prior car

sales experience. (Santone Dep. 31:10–17.) Mr. Bentley also testified that new sales

consultants are held to a lower standard than the more experienced, but he

generally expected twenty sales each month. (Bentley Dep., 12:2–14.)

tests in three days, but “still wasn’t allowed a sale until . . . [she] had been there for

one week.” (Patterson Dep., 96:12–97:5.) Ms. Patterson was eager to begin selling,

however, and “begged” Mr. Bentley to “give [her] a sale.” (Id., 100:3–4.) Although

Mr. Bentley does not recall delaying her first sale (Bentley Dep., 13:7–13), Ms.

Patterson testified that he “kept stalling, in one way or another,” saying “let’s wait

another day or two or maybe next week.” (Patterson Dep., 100:6–7, 100:20–21.) In

contrast, Ms. Patterson says that two male sales consultants, Tyler Gibbs and

James Wilkerson, were allowed to begin selling “right away.” (Id., 97:6–11.)

Although Ms. Patterson admittedly does not know when Messrs. Gibbs and

Wilkerson completed Kia University, she noticed their first sales “recorded on the

board, plain for everybody to see.” (Id., 97:14, 101:16–17.)

During her tenure at Easton, Ms. Patterson sold twelve cars—seven in

August and five in September. (Patterson Dep. Ex. I.)

B. Harassment

While employed there, Ms. Patterson was the only female sales consultant at

Easton. (Id., 42:21–22.) She describes the workplace culture as a “boy’s club”

atmosphere, with constant “locker room talk.” (Id., 42:14–22.) For example, on one

occasion, Ms. Patterson overhead Mr. Bentley tell “several salespeople and a couple

managers” that “women at the dealership were a pain in the ass, verbatim.” (Id.,

54:17–23.)

Approximately two weeks into her tenure, Ms. Patterson began to experience

sexual harassment from other Easton employees—namely, Steve Callum,2 Robert

DeBolt, and Mark Roberts.3 (Id., 39:15, 60:14–61:5.)

1. Steve Callum

On August 11, 2018, Mr. Callum, a fellow Easton sales consultant, was

walking the car lot with Ms. Patterson when he told her, “you’ve got a really nice

ass.” (Id., 40:8–10.) Ms. Patterson brought the comment to Mr. Pecjak’s attention,

who advised her to report to Mr. Santone immediately. (Id., 44:6–14.) She did. (Id.,

44:16.) Mr. Bentley and Mr. Santone later met with Mr. Callum. (Santone Decl.,

ECF No. 53, PAGEID # 1119.) He admitted making the comment and was told that

he could be fired for the conduct; that “[t]here’s absolutely zero room for that” type

of behavior. (Id.; Bentley Dep., 16:12–21.) Mr. Santone ultimately issued Mr.

Callum a “final warning” (Easton’s heaviest discipline short of termination) stating:

We received notification that you inappropriately complimented a

portion of a co-worker’s body. This is notification that these types of

actions are unacceptable in the workplace and should never occur again.

This will serve as a warning and any further occurances [sic] will result

in termination.

2In the parties’ briefing and evidence, Mr. Callum is interchangeably referred

to as Callum, O’Callum, and Steve O.

3Ms. Patterson’s deposition is clear that there were only three individuals

who harassed her. (Patterson Dep., 146:13–150:18.) In briefing, Ms. Patterson also

complains that Easton management was aware that Todd Sherfey had

inappropriate conversations with her in the workplace, yet took no action against

him. (Resp., 19.) But Ms. Patterson did not identify Mr. Sherfey as a problem in her

complaint, deposition, or elsewhere. (See Compl. See also Patterson Dep., 67:6–10.)

(Santone Decl,, PAGEID # 1119; Patterson Dep., Ex. L.)

Both Messrs. Bentley and Santone testified that they spoke with Ms.

Patterson before meeting with Mr. Callum, and that she did not want him

terminated. (Bentley Dep., 17:2–8.) Mr. Santone recalls that Ms. Patterson said she

liked Mr. Callum, but “just do[es]n’t want to be talked to like that.” (Santone Dep.,

57:18–20.) Although Ms. Patterson does not recall this conversation, she

acknowledged that she “absolutely” did not want Mr. Callum to be fired. (Patterson

Dep., 117:11–12.)

The following morning, Mr. Callum apologized to Ms. Patterson and shook

her hand. (Id., 45:1–3.) In Ms. Patterson’s view, “that was it as far as [they] were

concerned.” (Id.) She did not know that Easton took disciplinary action against Mr.

Callum, but was satisfied with how the issue resolved. (Id., 45:3–11.) Mr. Callum

never made another offensive comment to her. (Id., 60:17.)

Ms. Patterson further alleges that, on three or four occasions, Mr. Callum

displayed pornography on his cell phone in front of her and other Easton employees.

On each occasion, the material was visible for “a few seconds.” (Id., 39:24.) At one

point, Ms. Patterson “told [Mr. Callum] to get the fuck away . . . from [her] with

that.” (Id., 48:15–17.) Ms. Patterson thought it was known around the dealership

that Mr. Callum was doing this because it was not unique to her; instead, Mr.

Callum would “show [his phone] around.” (Id., 46:3–5; 47:24–48:1.) As a result, she

did not report the incidents. (Id., 46:18–22.)

Finally, Ms. Patterson testified that Mr. Callum engaged in “[c]onstant

aggressive flirtation”—telling her she was “adorable” and that “if [he] wasn’t

married, stuff like that.” (Id., 41:12–16.) Though the conduct made Ms. Patterson

uncomfortable, again she did not report it. (Id., 42:18.)

2. Robert DeBolt

Roughly a week before she was terminated, Ms. Patterson was “standing

outdoors having a smoke break” with Mr. DeBolt and “probably two or three other

people.” (Id., 61:12–14.) Mr. DeBolt “simply turned to [her] and said, oh, baby, I had

a dream about you last night, ooh wee.” (Id., 61:14–16.) Mr. DeBolt denies making

any such comment. (DeBolt Dep., ECF No. 47, 20:9–21:7.) Ms. Patterson never

reported the incident, and does not recall Mr. DeBolt doing anything else that she

found offensive. (Patterson Dep., 62:3–7.)

3. Mark Roberts

Easton hired Mark Roberts as a sales manager on August 20, 2018. (Santone

Decl., PAGEID # 1118.) Less than a week later, Mr. Roberts began asking Ms.

Patterson on dates, and whispering to her that she was “adorable” and “cute.”

(Patterson Dep., 166:2–8.) Though made daily, Mr. Roberts’s comments were not

sexually explicit and no one else heard him. (Id., 166:11–23.) The two also

exchanged text messages. (Patterson Dep. Ex. Q.) Mr. Roberts’s messages were

undeniably flirtatious. (Id.) Though Ms. Patterson’s could be read as reciprocally so,

she maintains that she was trying only to “keep it polite” in order to preserve their

working relationship. (Id., 171:22–172:7.)

Accounting for his absence due to illness, Ms. Patterson worked with Mr.

Roberts for only two weeks. (Id., 180:5–6.) She never reported Mr. Roberts’s

conduct—she believes that, by the time his conduct rose to the level where she

would have reported (i.e., “[t]hat he asked [her] for nudes and that he offered to be

[her] sugar daddy”), she had already been terminated. (Id., 64:22–65:9.)

C. Customer Service Issues

On September 10, 2018, Ms. Patterson was the subject of two separate

customer complaints. (Id., 181:20–22.) The first involved a customer she had taken

on a test-drive. (Id., 182:15–19.) The customer complained to Mr. Bentley that Ms.

Patterson had been “rude.” (Id., 183:7–9.) He left the dealership upset and said that

he would not buy a car from Easton again. (Santone Dep., 46:16–17, 47:24–48:3.)

Mr. Bentley counseled Ms. Patterson about her behavior and told her “what you did

to that guy was not okay.” (Patterson Dep., 183:12–13.) The second incident

involved a telephone call from a customer who wanted Ms. Patterson to give her a

trade-in price for a vehicle, sight unseen. (Id., 184:20–22.) When Ms. Patterson said

she was unable to help, the customer “scream[ed]” at her. (Id., 159:9–13.) She

similarly reported that she would never deal with Easton again because of the way

Ms. Patterson spoke to her. (Santone Dep., 47:21–23.) After the second complaint

came in, Ms. Patterson was sent home. (Patterson Dep., 159:19.)

D. Termination

After being sent home, Ms. Patterson expressed in text messages to Mr.

Roberts that she was “worried about [her] job.” (Patterson Dep. Ex. Q, 99.) She

acknowledged that she “ha[d]n’t sold a thing in 5 days” and described the situation

as “[d]ire.” (Id., 104.) In deposition, Ms. Patterson testified that she felt

in danger of getting the come to Jesus talk, but I didn’t think I was going

to get fired. Or at least hoping I wasn’t going to get fired. I was worried

at that point because I wanted better numbers.

(Patterson Dep., 187:9–14.)

On September 12, 2018, Mr. Bentley fired Ms. Patterson. (Bentley Dep.,

30:2–5.) After calling Ms. Patterson into his office, Mr. Bentley said only that “I’m

sorry, Eva, it’s just not working out.” (Patterson Dep., 203:16–17.) Mr. Bentley

provided no other specifics, and “off [Ms. Patterson] went.” (Id., 203:17–23.)

II. PROCEDURAL BACKGROUND

Ms. Patterson filed a charge with the Equal Employment Opportunity

Commission and received a Right to Sue letter dated March 19, 2019. (Compl.,

PAGEID # 27.) She then filed this action, asserting the following four claims

against Easton: Sex discrimination under Title VII (Count I); Sex discrimination

under Ohio Revised Code Chapter 4112 (Count II); Quid Pro Quo Sexual

Harassment (Count III); and Intentional Infliction of Emotional Distress (Count IV).

(Id., generally.)

III. STANDARD OF REVIEW

Summary judgment is appropriate when “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). The movant has the burden of establishing there are no genuine

issues of material fact, which may be achieved by demonstrating the nonmoving

party lacks evidence to support an essential element of its claim. Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co.,

12 F.3d 1382, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving

party to “set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P.

56). When evaluating a motion for summary judgment, the evidence must be viewed

in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398

U.S. 144, 157 (1970).

A genuine issue exists if the nonmoving party can present “significant

probative evidence” to show that “there is [more than] some metaphysical doubt as

to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir.

1993). In other words, “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. See also Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that

summary judgment is appropriate when the evidence could not lead the trier of fact

to find for the nonmoving party).

IV. ANALYSIS

A. Counts I and II: Federal and State Sex Discrimination

In Counts I and II, Ms. Patterson claims that Easton violated federal and

state law by discriminating against her on the basis of sex, including by subjecting

her to a hostile work environment.

Under federal law, it is illegal “for an employer . . . to discriminate 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). Similarly, Ohio law provides that:

[i]t shall be an unlawful discriminatory practice . . . [f]or any employer,

because of the race, color, religion, sex, national origin, handicap, age,

or ancestry 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(A). The Sixth Circuit has recognized that “the elements and

legal standards for establishing unlawful sex discrimination are the same under Ohio

Rev. Code § 4112.02 and under 42 U.S.C. § 2000e–2[.]” Laderach v. U-Haul, 207 F.3d

825, 828 (6th Cir. 2000). Accordingly, the Court will address these claims together.

1. Intentional Sex Discrimination

A plaintiff can prove unlawful conduct through either direct or circumstantial

evidence. Direct evidence is evidence “which, if believed, requires the conclusion

that unlawful discrimination was at least a motivating factor in the employer’s

actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921,

924 (6th Cir. 1999). In the absence of direct evidence of discrimination, such claims

are analyzed under the McDonnell Douglas burden-shifting framework. White v.

Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), as modified by Texas Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). Under this approach, a plaintiff

must first establish a prima facie case of discrimination. Burdine, 450 U.S. at 252–

53. Establishing a prima facie case creates a rebuttable presumption that the

employer engaged in unlawful conduct. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

506–07 (1993).

Once the plaintiff has established a prima facie case, the burden shifts to the

employer to produce a legitimate, non-discriminatory reason for the adverse

employment action. Burdine, 450 U.S. at 252–53. The burden is not onerous. An

employer will satisfy its burden as long as it articulates a valid rationale for its

decision. Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996).

If a defendant presents a legitimate, non-discriminatory reason for the

employment action, “a plaintiff will survive summary judgment only by raising a

genuine issue of material fact as to whether the proffered reason is in fact a pretext

for” unlawful discrimination. Walcott v. City of Cleveland, 123 F. App’x 171, 176

(6th Cir. 2005). To establish pretext, a plaintiff must show that “the reason offered

by the defendant: (1) has no basis in fact; (2) did not actually motivate the decision

. . . or (3) was insufficient to warrant the decision . . . .” Id. “In every civil rights

action it is the responsibility of the jury [to] determine whether the defendant’s

actions were invidious, pretextual, or improperly motivated.” Johnson v. Univ. of

Cincinnati, 215 F.3d 561, 578 (6th Cir. 2000). The ultimate burden of persuasion

remains throughout this analysis on the plaintiff. See Burdine, 450 U.S. at 253.

a) Ms. Patterson has made a prima facie showing of

intentional discrimination.

Ms. Patterson does not offer direct evidence of sex discrimination. The

Court therefore utilizes the familiar McDonnell Douglas burden-shifting

framework to evaluate her claims. White, 533 F.3d at 391 (citing McDonnell

Douglas, 411 U.S. at 802, as modified by Burdine, 450 U.S. 248 (1981)). Ms.

Patterson may establish a prima facie case of intentional discrimination by

showing that (i) she was a member of a protected class, (ii) she was qualified for

her position, (iii) she suffered an adverse employment action, and (iv) she was

treated differently than a similarly situated employee who was not a member of

the protected class. Id.

Easton concedes that Ms. Patterson meets the first three elements of her

prima facie case, but argues that she cannot establish the fourth. (Mot., 24.) Ms.

Patterson, in turn, identifies two male Easton sales consultants whom she alleges

were treated better: Tyler Gibbs and James Wilkerson. (Resp., 10–11.)

To demonstrate disparate treatment, a plaintiff must identify evidence that

tends to show that she is similarly situated in all relevant respects to the employees

to whom she compares herself. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d

344, 352 (6th Cir. 1998). “[T]o be deemed ‘similarly-situated’ in the [context of

disciplinary action resulting in termination of employment], ‘the individuals with

whom the plaintiff seeks to compare his/her treatment must have dealt with the

same supervisor, have been subject to the same standards and have engaged in the

same conduct without such differentiating or mitigating circumstances that would

distinguish their conduct or the employer’s treatment of them for it.’” Id. at 353

(quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Here, Messrs.

Gibbs and Wilkerson dealt with the same supervisors, were subject to the same

sales standards, and had the same job duties as Ms. Patterson. (Resp., 11.) Easton

argues that the two men were not similarly situated because, unlike Ms. Patterson,

they had no prior car sales experience. (Mot., 4; Reply, 3.) Easton’s argument

strains credulity. Ms. Patterson’s “prior car sales experience” was, in truth, a one-

month stint at an Audi dealership. (Patterson Dep., 17:18–18:14.) This limited

experience fails to distinguish Ms. Patterson from her two male colleagues.

Ms. Patterson argues that Messrs. Gibbs and Wilkerson were treated more

favorably in two ways: First, that the two men were allowed to sell cars

immediately upon hire, where she was made to sit idle for a week; and second,

that, in their first 30 days, Ms. Patterson sold more cars than Mr. Gibbs and sold

the same number of cars as Mr. Wilkerson, yet she was terminated for poor sales

and they were not. (Resp., 11.)

As to her first argument, the Court finds that the alleged one-week hold-back

from the sales floor does not constitute an adverse employment action as a matter of

law. “An adverse employment action is an action by the employer that ‘constitutes a

significant change in employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision causing a

significant change in benefits.’” White, 533 F.3d at 402 (quoting Burlington Indus. v.

Ellerth, 524 U.S. 742, 761 (1998)). Despite the great lengths to which Ms. Patterson

goes to persuade the Court that she was kept off the sales floor for a week, while

Mr. Gibbs “may have sold his first car on his second or third day [of employment],

and [Mr. Wilkerson] was right in there, first or second day, as well[,]” (Patterson

Dep., 97:8–11), such a minimal delay does not constitute a significant change in

employment status. As a basis for Ms. Patterson’s sex discrimination claim, it fails.

As to Ms. Patterson’s second argument, she has established a prima facie

case. The parties each offer a self-serving interpretation of the sales records for Ms.

Patterson, Mr. Gibbs, and Mr. Wilkerson. (Compare Resp., 3, 7 and Reply, 2–3.) But

the record reveals: In the month4 preceding her termination, Ms. Patterson sold

twelve cars. (ECF No. 55-6, PAGEID # 1194.) Over that same month5, Mr. Gibbs

sold twelve cars. (ECF No. 55-4, PAGEID # 1192.) And in Mr. Wilkerson’s first

month6 of sales activity, he, too, sold twelve cars. (ECF No. 55-5, PAGEID # 1193.)

Easton argues that the more appropriate comparison is between Ms.

Patterson’s total sales, and Messrs. Gibbs’s and. Wilkerson’s total sales during their

first forty-five days of employment—twelve, seventeen, and fifteen cars,

respectively. (Reply, 3.) In Easton’s view, these “close” figures are “not enough to be

considered ‘similarly-situated.’” (Id.) The law does not take such a rigid view. See

Ercegovich, 154 F.3d at 352 (“The plaintiff need not demonstrate an exact

correlation with the employee receiving more favorable treatment in order for the

two to be considered similarly-situated; rather. . . the plaintiff and the [comparator]

must be similar in all of the relevant aspects.”) (emphasis added; original emphasis

4 August 12, 2018, to September 12, 2018.

5 August 12, 2018, to September 12, 2018.

6 August 23, 2018, to September 23, 2018. Mr. Wilkerson was hired on August

20, 2018, and made his first sale on August 23, 2018.

omitted) (internal quotations and citation omitted). Easton also points to Ms.

Patterson’s contemporaneous text messages and deposition testimony indicating

that she was worried about her sales performance, and “wanted better numbers.”

But, of course Ms. Patterson—a salesperson—wanted to make more sales. Her

statements are not reasonably interpreted as any kind of concession as to the

righteousness of her termination.

Viewing the evidence in the light most favorable to Ms. Patterson, she has

made a prima facie case for discrimination on the basis of sex.

b) Easton offers a legitimate, non-discriminatory

reason for terminating her employment.

Because Ms. Patterson has satisfied her prima facie burden, the burden

shifts to Easton to offer a legitimate, nondiscriminatory reason for her termination.

Provenzano v. LCI Holding, Inc., 663 F.3d 806, 812 (6th Cir. 2011) (citation

omitted). Their burden is one of production, not persuasion; it “can involve no

credibility assessment.” St. Mary’s Honor Ctr., 509 U.S. at 509.

Easton meets its burden by stating that it terminated Ms. Patterson’s

employment for two legitimate reasons: poor sales and customer complaints. (Mot.,

25.) “Poor performance is a legitimate non-discriminatory reason for terminating an

employee.” Stockman v. Oakcrest Dental Ctr., P.C., 480 F.3d 791, 802 (6th Cir. 2007)

(citation omitted).

c) Ms. Patterson fails to show that Easton’s stated

reason is mere pretext for discrimination.

To defeat the Motion, Ms. Patterson must show that a genuine issue of

material fact exists as to whether Easton’s proffered reasons were pretext for

discrimination. To do so, she may establish that Easton’s proffered reasons: (i) had

no basis in fact; (ii) did not actually motivate the employer’s action; or (iii) were

insufficient to motivate the employer’s action. Tingle v. Arbors at Hilliard, 692 F.3d

523, 530 (6th Cir. 2012) (quoting Romans v. Mich. Dep’t of Human Servs., 668 F.3d

826, 839 (6th Cir. 2012)). These three categories are a “convenient way of

marshaling evidence and focusing it on the ultimate inquiry: ‘did the employer fire

the employee for the stated reason or not?’” Id.

A jury “may not reject an employer’s explanation [of its action] unless there is

sufficient basis in the evidence for doing so.” Gray v. Toshiba Am. Consumer Prods.,

Inc., 263 F.3d 595, 600 (6th Cir. 2001) (quotation and citation omitted). Accordingly,

to avoid summary judgment, “a plaintiff must produce sufficient evidence from

which a jury could reasonably reject the defendant’s explanation of why it fired her.”

Chen v. Dow Chemical Co., 580 F.3d 394, 400 (6th Cir. 2009). The evidence must

suggest that the employer acted for discriminatory reasons—more than simply

revealing “a dispute over the facts upon which the discharge was based[.]”

Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001). “[A]s long as an

employer has an honest belief in its proffered nondiscriminatory reason for

discharging an employee, the employee cannot establish that the reason was

pretextual simply because it is ultimately shown to be incorrect.” Majewski v.

Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (citation

omitted).

Ms. Patterson argues that Easton’s stated reasons for terminating her are

pretext for discrimination. She offers two arguments in support: first, that the sales

performance justification has no basis in fact; and, second, that Easton’s proffered

reason for terminating her has shifted over time. (Resp. 7–8, 12–15.)

As to her first argument, Ms. Patterson misconstrues the law governing her

burden on establishing pretext. Ms. Patterson must put forth evidence that Easton

did not “honestly believe” in the given reason for her termination. She has not done

so. Instead, she has shown that the parties “dispute . . . the facts upon which the

discharge was based.” Braithwaite, 258 F.3d at 494. As discussed above, the sales

data can be read and interpreted in several ways. Easton looks at Ms. Patterson’s

entire tenure to determine her sales record, as opposed to her final thirty days. Ms.

Patterson worked at Easton for forty-four days, during which time she sold twelve

cars. By comparison, Mr. Gibbs sold seventeen cars, and Mr. Wilkerson sold fifteen,

in their first forty-five days. Ms. Patterson offers no evidence suggesting that

Easton did not honestly rely on this analysis to determine that her sales were not

meeting expectations.

Moreover, Easton maintains that Ms. Patterson’s record of customer

complaints also factored into the decision to terminate her employment. It is

undisputed that two separate customers complained to Easton management about

Ms. Patterson on the same day—two days before she was terminated. Though Ms.

Patterson downplays the significance of those complaints now, she described the

situation as “dire” at the time. She offers similarly sparse evidence to suggest that

Easton did not honestly rely on her complaint record in deciding to terminate her.

That leads directly to Ms. Patterson’s second argument: that Easton’s

purportedly late addition of customer complaints to the list of reasons justifying her

termination shows that the reasons are mere pretext. Mr. Bentley terminated Ms.

Patterson on September 12, 2018—two days after she was sent home due to

customer complaints. Mr. Bentley gave no specific reason, but told Ms. Patterson

“it’s just not working out.” (Patterson Dep., 203:16–17.) Easton later represented to

the EEOC that Ms. Patterson was terminated “due to job performance.” (ECF No.

55-9, PAGEID # 1261.) Easton now represents that she was terminated for poor

sales and customer complaints—both of which relate to job performance. (See

Bentley Dep., 30:3–5.)

While different or shifting justifications for an adverse employment action

may show pretext, see Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 587 (6th Cir.

2002), it is well-established that providing additional, consistent reasons justifying

the action does not generally raise any such inference, Alexander v. Ohio State

Univ. Coll. of Soc. Work, 429 F. App’x 481, 489–90 (6th Cir. 2011), cert. denied, 565

U.S. 979 (2011). See also MacDonald-Bass v. J.E. Johnson Contracting, Inc., 493 F.

App’x 718, 726 (6th Cir. 2012) (“[P]roviding additional non-discriminatory reasons

that do not conflict with the one stated at time of discharge does not constitute

shifting justifications.”); Tidwell v. Carter Prods., 135 F.3d 1422, 1428 (11th Cir.

1998) (noting that “the existence of a possible additional non-discriminatory basis

for [plaintiff’s] termination does not . . . prove pretext”). Easton has consistently

maintained that Ms. Patterson was terminated for her poor job performance. Both

sales records and customer service are components of an Easton sales consultant’s

job performance. (Santone Dep., 40:17–41:7.) The fact that Easton now specifies

that customer complaints factored into its decision does not make a shifting

explanation, and fails to raise an inference of pretext.

Further weakening the argument that Easton’s stated reasons were mere

pretext for discrimination is the fact that the same person who fired Ms.

Patterson—Mr. Bentley—had hired her just forty-four days earlier. Thus, the same-

actor inference is relevant. See Cutcliffe v. Wright State Univ., 2019 WL 316909

(S.D. Ohio Jan. 24, 2019) (Rose, J.) (applying the same-actor inference when the

hire and fire decisions were made fifteen months apart). Though the same-actor

inference is neither mandatory nor dispositive, it can weaken evidence of

discrimination. See Wexler v. White’s Fine Furniture, 317 F.3d 564, 573–74 (6th Cir.

2003) (en banc) (holding that the same-actor inference is “insufficient to warrant

summary judgment for the defendant if the [plaintiff] has otherwise raised a

genuine issue of material fact” as to discriminatory intent). It would certainly cut

against the same-actor inference if evidence established that Mr. Bentley indeed

expressed a belief that “women at the dealership were a pain in the ass[.]”

(Patterson Dep., 54:17–18.) But, outside of Ms. Patterson’s, the issue was never

raised in deposition, and Ms. Patterson herself described the statement as being

made “in jest[,]” that it “was giggle giggle, ha ha.” (Id., 55:8–11.)

Ms. Patterson has failed to present any evidence upon which a reasonable

jury could determine that Easton’s stated reasons for terminating her were mere

pretext for discrimination. Accordingly, Easton’s motion for summary judgment

on her intentional sex discrimination claims is GRANTED.

2. Hostile Work Environment

Ms. Patterson also alleges that she suffered as a result of Easton’s sexually

hostile work environment. To succeed on such a claim, a plaintiff must establish

that: (i) she is a member of a protected class; (ii) she was subjected to unwelcome

sexual harassment; (iii) the harassment complained of was based on sex; (iv) the

harassment had the effect of unreasonably interfering with her work performance

and created a working environment that was intimidating, hostile, or offensive; and

(v) a basis for employer liability exists. Fleenor v. Hewitt Soap Co., 81 F.3d 48, 49

(6th Cir. 1996), cert. denied, 519 U.S. 863 (1996). Ms. Patterson has not established

the fourth element of her claim. Accordingly, the Court need not and does not

address the remaining elements.

The fourth element of a hostile work environment claim encompasses both

objective and subjective components. That is, “the conduct must be severe enough to

create an environment that a reasonable person would find hostile or abusive and

the victim must subjectively regard that environment as abusive.” Bowman v.

Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000) (citing Harris v. Forklift

Sys., Inc., 510 U.S. 17, 21 (1993)). The objective component requires courts to

consider “whether the workplace is so 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.” Grace v.

USCAR, 521 F.3d 655, 678–79 (6th Cir. 2008) (internal quotation marks and

citation omitted). The review encompasses “the frequency of the discriminatory

conduct; its severity; whether it [was] physically threatening or humiliating, or a

mere offensive utterance; and whether it unreasonably interfere[d] with an

employee’s performance.” Harris, 510 U.S. at 23. Case law sets “a relatively high

bar for what amounts to actionable discriminatory conduct under a hostile work

environment theory.” Philips v. UAW Int’l, 854 F.3d 323, 328 (6th Cir. 2017) (noting

that, in many cases, overtly discriminatory statements and racial slurs did not

create an actionable hostile work environment). “Simple teasing, offhand comments,

and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the terms and conditions of employment.” Barrett v. Whirlpool Corp., 556

F.3d 502, 515 (6th Cir. 2009) (cleaned up) (quoting Faragher v. City of Boca Raton,

524 U.S. 775, 788 (1998)). “Conduct that is merely offensive is not actionable” as a

hostile work environment claim; “the harassment must consist of more than words

that simply have sexual content or connotations.” Hawkins v. Anheuser-Busch, Inc.,

517 F.3d 321, 333 (6th Cir. 2008) (citations omitted). “[S]exual comments and

harassing acts of a ‘continual’ nature are more likely to be deemed pervasive.” Id.

(quoting Abeita v. TransAm. Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998)).

In this case, there is no evidence that the harassment Ms. Patterson alleges

was physically threatening or humiliating. And, while she recounts incidents of

decidedly inappropriate workplace behavior, those incidents were isolated and, on

the spectrum of such behavior, relatively tame.

• As to Mr. Callum, he told Ms. Patterson that she “had a really nice

ass,” and was subsequently disciplined and apologized. Ms. Patterson

was satisfied with how the issue was resolved. Mr. Callum also flirted

with Ms. Patterson and displayed pornography on his cell phone to

coworkers, including Ms. Patterson, “[t]hree or four times.” Mr. Callum

did not single out Ms. Patterson as a target for these ‘porn bombs’—

instead, “[h]e showed it around.” In response, Ms. Patterson “told him

to get the fuck away . . . from [her] with that.”

• As to Mr. DeBolt, on one occasion, he told Ms. Patterson that he had

dreamt about her. Though ripe for innuendo, there was nothing

explicit in his one-time statement.

• Finally, Mr. Roberts asked Ms. Patterson on dates, made comments

about her appearance, and exchanged flirtatious text messages with

her. Avoiding unwanted advances and commentary on her

appearance—as Ms. Patterson describes it, “the avoidance game”—

would certainly make selling cars more challenging. (Id., 211:10–15.)

However, Ms. Patterson’s tenure overlapped with Mr. Roberts’s by only

two weeks, during which time he was “hardly there to begin with

because of his health issues.” (Id., 157:12–13.)

Even considering these incidents in combination, they fall short of the severe and

pervasive harassment redressable under a hostile work environment claim. See,

e.g., Stacy v. Shoney’s, Inc., No. 97-5393 142 F.3d 436 (table) (6th Cir. 1998) (finding

that a male supervisor’s sexual comments, leering, and inappropriate behavior over

a two-month period were insufficient to establish a hostile work environment);

Stevens v. St. Elizabeth Med. Ctr. Inc., 533 F. App’x 624 (6th Cir. 2013) (affirming

grant of summary judgment for defendants on hostile work environment claim

despite inappropriate texts and unwanted physical contact); Black v. Zaring Homes,

Inc., 104 F.3d 822, 826 (6th Cir. 1997) (reversing jury verdict for plaintiff where

conduct, including off-color jokes and mysoginistic comments, “does not appear to

have been more than ‘merely offensive’”).

Ms. Patterson fails to clear the “high bar” established by law. Accordingly,

there is no genuine issue of material fact for trial. Easton’s motion for summary

judgment on Ms. Patterson’s hostile work environment claims is GRANTED.

B. Count III: Quid Pro Quo Harassment

Ms. Patterson concedes that she has failed to demonstrate quid pro quo

harassment, and that Easton is entitled to summary judgment on this claim. (Resp.,

2). Accordingly, Easton’s motion is GRANTED as to Count III.

C. Count IV: Intentional Infliction of Emotional Distress

Ms. Patterson’s final claim is for intentional infliction of emotional distress

(“IIED”) under Ohio law. An IIED claim requires proving

(1) that the actor either intended to cause emotional distress or knew or

should have known that the actions taken would result in serious

emotional distress to the plaintiff, (2) that the actor’s conduct was so

extreme and outrageous as to go beyond all possible bounds of decency

and was such that it can be considered as utterly intolerable in a

civilized community, (3) that the actor’s actions were the proximate

cause of the plaintiff’s psychic injury, and (4) that the mental anguish

suffered by the plaintiff is serious and of a nature that no reasonable

man could be expected to endure it.

Ondo v. City of Cleveland, 795 F.3d 597, 611–12 (6th Cir. 2015) (quoting Burkes v.

Stidham, 668 N.E.2d 982, 989 (Ohio Ct. App. Nov. 13, 1995)). The “extreme and

outrageous” standard is narrowly defined and is difficult to meet. Id. at 612. The Ohio

Supreme Court has described it as follows:

Liability has been found only where the conduct has been so outrageous

in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community. Generally, the case is one in which

the recitation of the facts to an average member of the community would

arouse his resentment against the actor, and lead him to exclaim,

“Outrageous!”

The liability clearly does not extend to mere insults, indignities, threats,

annoyances, petty oppressions, or other trivialities. The rough edges of

our society are still in need of a good deal of filing down, and in the

meantime plaintiffs must necessarily be expected and required to be

hardened to a certain amount of rough language, and to occasional acts

that are definitely inconsiderate and unkind. There is no occasion for

the law to intervene in every case where some one’s feelings are hurt.

Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am.,

453 N.E.2d 666, 671 (Ohio 1983) (quoting Restatement (Second) of Torts § 46 cmt. d

(Am. Law Inst. 1965)), abrogated on other grounds by Welling v. Weinfeld, 866

N.E.2d 1051 (Ohio 2007). See also Brown v. Denny, 594 N.E.2d 1008, 1012 (“[N]ot

every wrongful act is outrageous. Only the most extreme wrongs, which do gross

violence to the norms of a civilized society, will rise to the level of outrageous

conduct.”).

Easton argues that the conduct that occurred here was not “extreme and

outrageous.” (Mot., 28.) The Court agrees. Viewing the evidence in the light most

favorable to Ms. Patterson, the Court finds that no reasonable jury could conclude

that the conduct at issue is extreme and outrageous. “Even if based upon

discrimination, an employee’s termination does not rise to the level of ‘extreme and

outrageous conduct.’” Genco v. YWCA of Greater Cincinnati, Inc., No. 1:17-0462

(WOB), 2018 WL 4008051, at *4 (S.D. Ohio Aug. 22, 2018) (Bertelsman, J.) (citing

Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999). See also

Cameron v. Bd. of Educ. of Hillsboro, Ohio City Sch. Dist., 795 F. Supp. 228, 238

(S.D. Ohio 1991) (Spiegel, J.) (rejecting plaintiff’s IIED claim where only basis for

emotional distress was that she “may have been dismissed for discriminatory

reasons”). What’s more, “even sexually charged and lewd comments by a supervisor

or fellow employee does not rise to the level of ‘outrageous conduct.’” French v. U.S.,

195 F. Supp. 3d 947, 956 (N.D. Ohio 2016) (collecting cases).

Ms. Patterson has not provided the Court with any case law producing a

finding otherwise on analogous facts. Her invocation of Hampel—a case in which

the facts and procedural posture are entirely distinguishable—is not persuasive.

Although the Hampel court indeed stated that “relevant evidence . . . presented in

support of sexual harassment” may also be “relevant and admissible with regard to

[IIED],” the court in the same breath recognized that the “elements of a sexual

harassment claim and an [IIED] claim are substantively different and conclusions

relating to the liability of one do not transfer to another.” Hampel v. Food

Ingredients Specialties, Inc., 729 N.E.2d 726, 740 (Ohio 2000) (affirming trial court’s

decision to enter a directed verdict for defense on sexual harassment claim, while

leaving verdict for plaintiff on IIED; facts giving rise to claims reflect sustained and

targeted harassment of a subordinate by a superior and possible retaliation for

reporting incident to management).

Accordingly, the Court GRANTS Easton’s motion for summary judgment on

Count IV.

V. CONCLUSION

For the reasons set forth above, Easton’s Motion for Summary Judgment

(ECF No. 53) is GRANTED. The Clerk is DIRECTED to TERMINATE this case

from the docket of the United States District Court for the Southern District of

Ohio.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE