Knox v. Neaton Auto Products

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Knox v. Neaton Auto Products Mfg. No. 03-3075

ELECTRONIC CITATION: 2004 FED App. 0218P (6th Cir.)

File Name: 04a0218p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: F. Harrison Green, Cincinnati, Ohio, for

FOR THE SIXTH CIRCUIT Appellant. Robert A. Harris, VORYS, SATER, SEYMOUR

_________________ & PEASE, Columbus, Ohio, for Appellee. ON BRIEF: F.

Harrison Green, Cincinnati, Ohio, for Appellant. Robert A.

JAYNE KNOX , X Harris, Michael F. O’Brien, VORYS, SATER, SEYMOUR

Plaintiff-Appellant, - & PEASE, Columbus, Ohio, for Appellee.

-

- No. 03-3075 _________________

v. -

> OPINION

, _________________

NEATON AUTO PRODUCTS -

MANUFACTURING, INC., - JUDITH M. BARZILAY, Judge. Plaintiff-Appellant Jayne

Defendant-Appellee. - Knox appeals from a judgment of the district court granting

- summary judgment to Defendant-Appellee Neaton Auto

N Products Manufacturing Inc., on her gender discrimination,

Appeal from the United States District Court sexual harassment, wrongful discharge, and defamation

for the Southern District of Ohio at Dayton. claims. For the reasons set forth below, we affirm the grant

No. 00-00345—Thomas M. Rose, District Judge. of summary judgment on all claims.

Argued: April 28, 2004 I. BACKGROUND

Knox went to work for Neaton Auto Products

Decided and Filed: July 9, 2004 Manufacturing, Inc. in July 1985 as a material handler. This

position carried various responsibilities, including operating

Before: GUY and GILMAN, Circuit Judges; BARZILAY, a forklift to bring and remove large containers known as

Judge.* “ropacs” to and from different production lines. During her

first three and one-half years, Knox worked under a

supervisor named Tony Matlock in the shipping department.

Knox and Matlock did not get along well, and Matlock often

delegated difficult tasks to Knox, asking her to do things he

knew she could not. She also alleges that he repeatedly stated

that he did not want women working for him. Knox

eventually asked to be transferred to a different shift, and was

*

The Honorable Judith M. Barzilay, Judge, United States Court of thereafter moved to a different material handling position.

International Trade, sitting by designation.

1

No. 03-3075 Knox v. Neaton Auto Products Mfg. 3 4 Knox v. Neaton Auto Products Mfg. No. 03-3075

After she transferred from under his supervision, Matlock told Necessary, a member of Neaton’s Human Resources

Knox that “if [she] ever went to work for him again, [she’d] Department, investigated the incident. As a result of this

be gone.” J.A. at 515 (Knox Dep.). incident, a meeting was called between Knox, her supervisor

Ken Messer, Messer’s supervisor Matlock, and Necessary. At

During the next ten years Knox did not work directly under this meeting Knox was informed that her behavior toward

Matlock. He did, however, “write her up” for an incident Wright was deemed insubordinate and that she was being

where she replaced a fallen fire extinguisher but failed to suspended for three days without pay, removed from her

report that it had been down, as per company policy. In 1999, position as group leader, and placed on probation for six

Matlock was put in charge of the material handlers, assuming months. Regarding this probationary period, Knox was

authority over Knox’s supervisors and therefore once again notified in writing that “[d]uring this time any violation of a

over Knox. Shortly thereafter, Knox was named group leader Neaton rule or policy will result in immediate termination.”

for material handlers on the second shift – a pseudo- J.A. at 115 (Def.’s Ex. D). Kevin Freck, another Neaton

supervisory position that involved some direction of other employee, replaced Knox as group leader of the second shift

employees in the absence of a supervisor. and she was eventually transferred to the first shift.

On August 3, 1999, Knox was involved in a verbal Before she was transferred to the first shift, on

exchange with a Neaton supervisor, Henry Wright. Knox September 16, 1999, Knox was involved in an incident that

went to see Wright to obtain keys to a locked area in order to violated her probation and led directly to her termination. As

retrieve a hose for some maintenance workers. After she was part of her responsibilities, Knox was in charge of removing

repeatedly told by Wright that she would not be able to obtain full ropac containers from the production line, where they

the hose, she told Wright to “forget it,” and that she “was were being filled with finished product, and bringing empty

trying to do the Christian thing.” J.A. at 521-522 (Knox ones back to the line. Supplying the production lines with

Dep.). Knox immediately reported the incident to Neaton’s empty ropacs is a primary objective of the material handler

Human Resources Department, verbally stating that position because when a production line is not provided with

something needed to be done “before everything blew up.” empty ropacs, it is forced to shut down. A few hours into her

Wright also reported the incident in two separate memoranda shift, Knox noticed that the line employees were filling up

submitted to Human Resources. In the first memorandum, their last empty ropac, but despite this observation, Knox

dated August 3, 1999, Wright stated that Knox made the drove by on her forklift three times without delivering any

comments: “You are not my supervisor;” “You don’t give out empty ropacs. Knox claims that the ropac being filled could

my work assignments;” and “It’s none of your business why not be removed because it had not yet been quality inspected.

I need a hose.” J.A. at 699 (Pl.’s Ex. A). In the second Then, rather than delivering empty ropacs herself, she told

memorandum, dated three days later, Wright stated that Knox another material handler of the situation and requested that

said something to the effect of “That is not the way a this other handler deliver empty ropacs to the line. Neaton

Christian should act. And you are becoming more of a devil’s investigated the incident after the fact and determined that

advocate every day.” J.A. at 700 (Pl.’s Ex. B). Knox also because of Knox’s failure to deliver empty ropacs, the

indicates that she was told by a fellow employee that another production line had shut down. On September 23, 1999,

employee, a shipping associate, had overheard Matlock telling Knox was called to a meeting with the management team for

Wright that he had to do something about the hose incident, her position, which included David Dunfee, Ken Messer,

and that he (Matlock) wasn’t going to let it drop. Carol Tony Matlock, and Carol Necessary. At the meeting, Knox

No. 03-3075 Knox v. Neaton Auto Products Mfg. 5 6 Knox v. Neaton Auto Products Mfg. No. 03-3075

was informed that she was being discharged because of her setting. Knox asked Schaffer to stop and complained of this

unsatisfactory performance on September 16 – a violation of behavior to her superiors, but it never ceased.

the conditions of her probation. Knox was then replaced by

Teresa Pressel, a female Neaton employee. J.A. at 527. II. ANALYSIS

Knox also claims that while she was employed by Neaton A. Standard of Review

a number of male employees were treated more leniently than

she was. She describes several situations where male A grant of summary judgment is reviewed de novo.

employees used abusive language and refused instructions Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623, 629

from their supervisors but were never disciplined. (6th Cir. 2002). Summary judgment is proper where there

Furthermore, Knox claims that male probationary employees exists no genuine issue of material fact and the moving party

were also treated more leniently. Specifically, she alleges in is entitled to judgment as a matter of law. FED . R. CIV . P.

an Equal Employment Opportunity Commission 56(c). In considering a motion for summary judgment, the

questionnaire that “[n]ear September 30, 1999, Mike district court must construe the evidence and draw all

O’Connor of the Die Cast Department was on a six month reasonable inferences in favor of the nonmoving party.

disciplinary probation . . . when he got into a fight with Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

another employee . . . and only received five days 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The

suspension.” J.A. at 135-136. She also alleges that “[o]n central issue is “whether the evidence presents a sufficient

October 5, 1999, Bart Lanhart, Rim Room employee, was on disagreement to require submission to a jury or whether it is

a six month disciplinary probation . . . He broke company so one-sided that one party must prevail as a matter of law.”

policy rule [sic] of leaving company property during working Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L.

hours without checking out . . . He was not fired for this Ed. 2d 202, 106 S. Ct. 2505 (1986).

incident . . .” J.A. at 135-136. These claims are not

elaborated upon or substantiated anywhere in the record of B. Gender discrimination under Title VII and Ohio state

this case. law

Finally, Knox claims that while she was employed by In order to establish a prima facie case of gender

Neaton, another employee named Greg Schaffer made a discrimination under Title VII, Knox must show that (1) she

number of sexually oriented remarks in her presence. On was a member of a protected class; (2) she suffered an

many occasions, Schaffer would comment about female adverse employment action; (3) she was qualified for the

Neaton employees, “[w]hat he would like to do to them and position; and (4) she was treated differently from similarly

their chests, their build, making them sweat.” J.A. at 70-72, situated members of the unprotected class. See McDonnell

575 (Knox Dep.). Schaffer would also comment on “[h]ow Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668,

he likes to watch them walk away from him as well as 93 S. Ct. 1817 (1973); Hoskins v. Oakland County Sheriff’s

towards him.” Id. Furthermore, Knox claims that Schaffer Dept., 227 F.3d 719, 731 (6th Cir. 2000) (citing Warfield v.

and other Neaton employees she worked with often used the Lebanon Correctional Inst., 181 F.3d 723, 728-29 (6th Cir.

“f-word” and took the Lord’s name in vain. J.A. at 69-71. 1999)). Because the prima facie case requirements are

Knox does not allege that these comments were directed at essentially the same under the Ohio Revised Code § 4112.02,

her, and she also admits they were often made in a group see Ohio Civil Rights Comm'n v. David Richard Ingram,

No. 03-3075 Knox v. Neaton Auto Products Mfg. 7 8 Knox v. Neaton Auto Products Mfg. No. 03-3075

D.C., Inc., 69 Ohio St. 3d 89, 630 N.E.2d 669, 672 (Ohio that the position involves some direction of other employees

1994), Knox's federal and state-law claims of gender in the absence of a supervisor and is a special designation.

discrimination may be disposed of together. Even if this did qualify as a meaningful demotion, however,

Knox is unable to establish that the decision to remove her

The district court properly determined that Knox failed to from the group leader position was mere pretext for some

establish a prima facie case for several reasons. First, it other discriminatory motive. Neaton clearly informed Knox

correctly determined that because Matlock’s statements about that she was being stripped of her position as group leader

not wanting women working for him and about Knox “being because she violated the Neaton Associate Standards of

gone” if she were ever to work for him again were made ten Conduct.1 Knox responds that genuine issues of material fact

years prior to Knox’s termination, they were not sufficiently exist as to whether this reason was pretextual because the

close in time to the allegedly discriminatory action. Second, decision to place her on probation was made in part by

neither the incidents where Matlock made Knox perform Matlock. She argues that his comments and hostile behavior

tasks that she couldn’t handle, nor where Matlock wrote her towards her, taken together, constitute a circumstantial case

up for failing to report a fallen fire extinguisher, have been of discrimination.2 As stated above, however, these incidents

linked in any way to sex-based discrimination – as opposed do not constitute circumstantial evidence of sex-based

to sex-neutral animus between Knox and Matlock. Third, discrimination, as opposed to sex-neutral animosity between

Knox’s allegation that one Neaton employee told yet another her and Matlock. Furthermore, Knox’s allegation that Wright

that the employee had overheard, in the break room, Matlock was unduly influenced by Matlock is based entirely on

telling Wright that he had to do something about the hose statements overheard by one Neaton employee and

incident, and that he wasn’t going to let it drop, constitutes transmitted to Knox by yet another individual, which

inadmissible hearsay within hearsay and cannot be used to constitutes inadmissible hearsay, as also discussed above.

support Knox’s claim that Matlock’s statement had not Thus, Knox is unable to establish that Neaton’s decision to

become stale. See FED . R. CIV . P. 56(e); Moore v. Holbrook, remove her from the group leader position was a mere pretext

2 F.3d 697, 699 (6th Cir. 1993) (A court cannot rely on for an alternative discriminatory rationale.

unsworn inadmissible hearsay when ruling on a summary

judgment motion).

1

Knox was informed that: “On August 4, 1999 an incident occurred

Finally, we turn to the district court’s analysis of the fourth where you use d abusive language with another Neaton A ssociate. . . .

prong of the McDonnell Douglas burden-shifting analysis, During this incident you also refused to cooperate with a legitimate

which requires a plaintiff to demonstrate either that she was request from a [Neaton] supervisor. . . . This is a violation of Neaton

replaced by someone outside the protected class or that she Asso ciate Stand ards o f Cond uct . . . You are removed from your group

leade r’s position as a result of this violation.” J.A. at 116 (Def.’s Ex. D).

was treated differently from similarly situated members of the

unprotected class. See Hoskins v. Oakland County Sheriff’s 2

In support of the proposition that tem porally remote comments can

Dept., 227 F.3d 719, 731 (6th Cir. 2000). The district court be used to build a circumstantial case of discrimination, Knox cites to

held that although Knox was replaced as team leader by Robinson v. Runyon, 149 F.3d 507, 514 (6th Cir. 1998) and Abrams v.

Kevin Freck after being demoted, suspended, and placed on Lightolier, Inc., 50 F.3 d 1204 , 1214 (3d C ir. 1995). In both cases the

probation, Knox had not asserted that being stripped of the court held that various discriminatory statements and events, taken

“pseudo-supervisory” designation as group leader was a together, could suffice to build a case of discrimination. In the present

case, however, Knox is unable to produce any other circumstantial

demotion in any meaningful sense. Knox claims on appeal evide nce o f sexually d iscrimina tory treatment.

No. 03-3075 Knox v. Neaton Auto Products Mfg. 9 10 Knox v. Neaton Auto Products Mfg. No. 03-3075

The district court also correctly held that Knox failed to Rules of Civil Procedure. Celotex Corp. v. Catrett, 477 U.S.

establish that she was treated differently than similarly 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (Rule

situated non-protected employees. Relying on this court’s 56(e) requires the nonmoving party to go beyond the

decision in Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. pleadings and by her own affidavits, or by the “depositions,

1999), the district court held that Knox must establish that “a answers to interrogatories, and admissions on file,” designate

male employee, who was on probation, was not discharged “specific facts showing that there is a genuine issue for trial”).

for action or inaction that Neaton had determined shut down Thus, the district court correctly held that because Knox

a production line.” [Although it ultimately reached the failed to establish a prima facie case of discrimination,

correct result,] [we] believe the district court misconstrued Neaton was entitled to summary judgment on the Title VII

this circuit's precedent in applying an exceedingly narrow and R.C. § 4112.02 claims.

reading of the Hollins decision. In employment

discrimination cases, the plaintiff need not demonstrate an C. Sexual Harassment

exact correlation with the employee receiving more favorable

treatment in order for the two to be considered “similarly In order to establish a prima facie case of hostile

situated;” rather, this court has held that the plaintiff and the environment sexual harassment under R.C. § 4112, Knox

employee with whom the plaintiff seeks to compare himself must establish that: (1) the harassment was unwelcome;

or herself must be similar in “all of the relevant aspects.” (2) the harassment was based on sex; (3) the harassing

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, conduct was sufficiently severe or pervasive to affect the

353 (6th Cir. 1998) (citing Pierce v. Commonwealth Life Ins. terms, conditions, or privileges of employment, or any matter

Co., 40 F.3d 796 (6th Cir. 1994)) (emphasis in original). This directly or indirectly related to employment; and (4) the

amounts to a harmless error, however, because Knox has harassment was committed by a supervisor or the employer,

failed to provide any admissible evidence that similarly through its agents or supervisory personnel, who knew or

situated males were treated differently than she was. To should have known of the harassment and failed to take

establish her prima facie case, Knox points exclusively to immediate and appropriate corrective action. Hampel v. Food

statements she made in response to an Equal Opportunity Ingredients Specialties, Inc., 89 Ohio St. 3d 169, 176-77, 729

Employment Commission questionnaire. Nowhere in the N.E.2d 726 (Ohio 2000). Conduct that is merely offensive,

record are these or other statements substantiated or is however, is not actionable. See Harris v. Forklift Sys., Inc.,

testimony regarding these incidents developed. Knox does 510 U.S. 17, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993);

not indicate that she has any personal knowledge of these Hampel, 89 Ohio St. 3d at 180. Rather, the conduct

events, nor does she indicate how or where she obtained this complained of must be severe or pervasive enough to create

information. Furthermore, Knox does not present any an environment that not only the victim subjectively regards

evidence regarding the terms of probation that these male as abusive but also a reasonable person would find hostile or

employees were allegedly under. In fact, at oral argument abusive. Harris, 510 U.S. at 21-22. To be actionable,

Knox’s counsel admitted a failure to gather the necessary harassment must constitute more than words that have sexual

information to support this claim. Without such information, content or connotations. See Onacle v. Sundowner Offshore

it is impossible to determine whether Knox can make a prima Serv., Inc., 523 U.S. 75, 80, 140 L. Ed. 2d 201, 118 S. Ct. 998

facie showing that she was treated less favorably than (1998). Finally, members of one sex must be exposed to

similarly situated males. Knox has therefore failed to meet disadvantageous terms or conditions of employment to which

her burden of production under Rule 56(e) of the Federal members of the other sex are not exposed. Id.

No. 03-3075 Knox v. Neaton Auto Products Mfg. 11 12 Knox v. Neaton Auto Products Mfg. No. 03-3075

The District Court granted summary judgment on Knox’s D. Wrongful Discharge in Violation of Public Policy

hostile environment sexual harassment claim on the grounds

that she had failed to make out the third element of the In order to establish a claim under Ohio law for wrongful

Hampel test; namely, that the alleged conduct was sufficiently discharge in violation of public policy, a plaintiff must prove

severe or pervasive to affect the terms, conditions, or the following four elements: (1) a clear public policy

privileges of employment, or any matter directly or indirectly manifested in a statute, regulation or the common law;

related to employment. 89 Ohio St. 3d at 176-77. Knox (2) that discharging an employee under circumstances like

alleges in her deposition that she heard co-workers use “the f- those involved would jeopardize the policy; (3) that the

word,” that they “took the Lord’s name in vain,” and that one discharge at issue was motivated by conduct related to the

co-worker, Greg Schaffer, continuously made sex-related policy; and (4) that there was no overriding business

comments, such as commenting on different “women’s good justification for the discharge. Kulch v. Structural Fibers,

looking behind[s],” and talked about “sleeping with different Inc., 78 Ohio St. 3d 134, 151, 677 N.E.2d 308 (Ohio 1997);

women and comments about what [they] would be like.” see also Collins v. Rizkana, 73 Ohio St. 3d 65, 69-70, 652

Knox states that she repeatedly asked Schaffer to stop and N.E.2d 653 (Ohio 1995). The District Court reasoned that the

reported his behavior, but it never ceased. She admits, third and fourth elements amount to “a legitimate, non-

however, that these comments were usually made during shift discriminatory reason analysis for the statutory claim under

meetings and were directed to the group, rather than to her [R.C. § 4112].” Because it granted summary judgment on

personally. Cf. Black v. Zaring Homes, Inc., 104 F.3d 822 Knox’s sex discrimination claim, the District Court held that

(6th Cir. 1997), cert. denied, 522 U.S. 865, 139 L. Ed. 2d 114, summary judgment on the wrongful discharge claim was

118 S. Ct. 172 (1997) (noting that in that case, most of the proper too.

comments were not directed at plaintiff, a fact which

contributed to the conclusion that the conduct was not severe In her complaint, Knox argues that she was “wrongfully

enough to create an objectively hostile environment) (citation discharged . . . in violation of her rights as set forth under the

omitted). She also admits that she was never touched or Neaton Auto Product Manufacturing Handbook and under

physically harassed. Cf. Harris, 510 U.S. at 17-23 (listing a common law.” She does not identify any other source of

non-exhaustive set of factors to consider in evaluating “clear public policy” to sustain her wrongful discharge claim.

whether harassment is severe or pervasive enough to be In similar cases, R.C. § 4112 has been recognized as a source

actionable, including severity of the conduct complained of of public policy sufficient to satisfy the first prong of the

and whether it is physically threatening or humiliating). Kulch test. However, because Knox cannot survive summary

Finally, Knox admitted that the comments “[d]idn’t get in judgment on her section 4112/Title VII claim, and because

[her] way of actually doing [her] job . . .” Id. (listing as a Knox has not identified any other clear public policy that

factor whether conduct unreasonably interferes with an would be jeopardized by her termination, summary judgment

employee’s performance). Thus, because the evidence is is proper on this claim as well. See Cochran v. Columbia Gas

insufficient to support a finding that the various comments of Ohio, Inc., 138 Ohio App. 3d 888, 895, 742 N.E.2d 734

and behavior complained of by Knox, although crass and (Ohio Ct. App. 2000) (affirming a grant of summary

offensive, were severe or pervasive enough to create an judgment against appellant, where the court had determined

objectively hostile work environment, the district court that appellant failed to establish grounds for relief under R.C.

correctly denied Knox’s sexual harassment claim. § 4112.02 and did not identify any other source of “clear

public policy” to sustain a wrongful discharge claim).

No. 03-3075 Knox v. Neaton Auto Products Mfg. 13 14 Knox v. Neaton Auto Products Mfg. No. 03-3075

Therefore, the district court correctly granted summary In order to establish actual malice, Knox further claims that

judgment on the wrongful discharge claim. circumstantial evidence exists that Matlock pressured Wright

into drafting the second report which stated that Knox had

E. Defamation used abusive language. This circumstantial evidence cited by

Knox is limited to (1) the fact that in Wright’s first report

Defamation is a “false publication that injures a person’s there was no mention of abusive language, and (2) statements

reputation, exposes him to public hatred, contempt, ridicule, by a Neaton employee who heard that another co-worker

shame or disgrace, or affects him adversely in his trade or overheard Matlock telling Wright that he should not let the

business.” Sweitzer v. Outlet Communs., Inc., 133 Ohio App. issue drop. As stated above, the district court correctly

3d 102, 108, 726 N.E.2d 1084 (Ohio Ct. App. 1999). concluded that these alleged statements, overheard by a co-

Furthermore, Ohio law provides for a defense of qualified worker’s co-worker, constitute hearsay within hearsay and

privilege to allegations of defamation where the publisher and would not be admissible in court to persuade a jury that

the recipient have a common interest, and the communication Wright acted with actual malice. The fact that there existed

is of a kind reasonably calculated to protect or further it. See some discrepancy between the two reports, as well as between

Hahn v. Kotten, 43 Ohio St. 2d 237, 243, 331 N.E.2d 713 what Knox claims to have stated and what Wright attributed

(Ohio 1975). For example, a communication made in good to her in his second report do not, alone, reach the level of

faith on a matter of common interest between an employer actual malice. Therefore, the district court correctly granted

and an employee, or between two employees concerning a summary judgment on Knox’s defamation claim.

third employee, is protected by qualified privilege. See Evely

v. Carlon Co., Div. of Indian Head, Inc., 4 Ohio St. 3d 163, III. CONCLUSION

165, 166, 447 N.E.2d 1290 (Ohio 1983). Once a defendant

demonstrates the existence of qualified privilege, the plaintiff For all of the reasons set forth above, we AFFIRM the

can only prevail upon a showing of actual malice. Id. at 1293. judgment of the district court.

Knox claimed before the district court that Neaton

committed defamation when Henry Wright filed his more

detailed report of the September 16, 1999 hose incident,

attributing to Knox the statements: “that’s not the way a

Christian should act” and “you are becoming more of a

devil’s advocate every day.” She argues that the district court

erroneously held that Wright’s report containing these

statements was protected by qualified privilege. She also

argues that the district court erred in holding that Wright’s

report was not defamatory. Because Wright’s report was

made in the regular course of business regarding matters of

common interest between himself, as Knox’s superior, and

the Human Resources Department at Neaton concerning

Knox’s behavior on the job, the district court correctly held

that these statements were protected by qualified privilege.