Daniels v. Pike County Commissioners

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 17a0501n.06

No. 16-4000

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAMELA J. DANIELS, et al., ) FILED

) Aug 29, 2017

Plaintiffs-Appellants, ) DEBORAH S. HUNT, Clerk

)

v. )

ON APPEAL FROM THE UNITED

)

STATES DISTRICT COURT FOR THE

PIKE COUNTY COMMISSIONERS, et al., )

SOUTHERN DISTRICT OF OHIO

)

Defendants-Appellees. )

)

)

BEFORE: DAUGHTREY, MOORE, KETHLEDGE, Circuit Judges.

MARTHA CRAIG DAUGHTREY, Circuit Judge. Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §§ 2000e–2000e-17, is not a “general civility code for the

American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998); see

also Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Consequently, the statutory

scheme will not protect employees from all acts of a boorish, callous, condescending, or

overbearing supervisor. However, Title VII can, and does, protect the rights of employees not to

be subjected to job-related discrimination on the basis of gender, 42 U.S.C. § 2000e-2(a)(1), or

to retaliation for making a charge of discriminatory practices. 42 U.S.C. § 2000e-3(a). In this

case, plaintiff Pamela Daniels1 alleges, under both federal and state law, that defendant Charles

1

Although the complaint and the first amended complaint were filed in the names of Pamela Daniels and

Rachel Barron, Barron is no longer a party to this appeal.

No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

Robert (Rob) Junk, Jr.,2 the Pike County (Ohio) prosecutor, created a hostile work environment

in his office and terminated Daniels’s employment in the office solely because of her gender, that

Junk retaliated against her for reporting the harassment, and that Junk’s actions amounted to

intentional infliction of emotional distress. In a thorough written opinion, the district court

granted summary judgment to Junk on each claim, and Daniels now appeals. For the reasons

discussed below, we conclude that Daniels has identified a genuine dispute of material fact that

precludes summary judgment for Junk on Daniels’s claim of retaliation. Thus, we reverse the

district court’s decision on that one cause of action but affirm the rest of the district court’s

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Junk hired Daniels as a secretary in the Pike County prosecutor’s office in November

1997, a year after he first was elected as county prosecutor. By 2013, Daniels had moved into

the victim’s-advocate/witness-coordinator position in the office and, at that time, enjoyed a

generally good working relationship with Junk.

That relationship began to fray, however, in October 2013 after Junk attended a seminar

on restoring public trust in government offices. According to Junk:

I was sitting there, and it really embarrassed me some of the things [the speaker]

said. And I remember what my mom said, “Every time I come [to the

prosecutor’s office] they are having a party out front.” That’s embarrassing.

And as luck would have it, that day Allen Smith[, a former United States

Marshal,] and I actually had lunch together. We went to a meeting at the

Columbus Police Academy with some of the Homeland Security people, and he

talked about people in the office not being professional and not dressing well, and

how they answered the phone, and things like that.

And I was guilty of basically screwing off at work and getting on the Internet and

things like that, too. And I did it on more than one occasion.

2

The first amended complaint listed both Junk and the Pike County Commissioners as defendants;

however, the claims against the commissioners have been dismissed, leaving only Junk as a party defendant.

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

***

But I wanted to do something about it. And it was the straw that broke the

camel’s back. I talked with Allen about it over lunch, and it’s just something that

had been building.

When he returned from the seminar, Junk implemented a number of changes that

ostensibly were designed to improve the professionalism in the office. Among those changes

were requirements that staff work five eight-hour days (8:30 a.m. until 4:30 p.m.)—rather than

four ten-hour days, as they had been doing for a period of time—that employees clock into and

out of work each day, that staff no longer wear blue jeans or flip-flops in the office, and that

office computers be used for business purposes only. Logical rationales were offered for each

new guideline. For instance, even Daniels herself admitted that the switch back to the more-

traditional five-day work week was warranted because, when scheduled to work four ten-hour

days, “there were days people weren’t getting their full 10 hours in or working their full 10

hours.” Furthermore, Junk deemed use of a time clock necessary because he “was having

problems with [Barron and Daniels] showing up on time, wanting to leave early and things like

that.” Other employees also told Junk that, when he would be in court, “[Daniels] would stroll in

around 9:00.” Moreover, Junk himself sometimes had to answer the telephones himself because

Daniels and Barron “left the office uncovered at times.”

Daniels does not dispute that office personnel often wore jeans and flip-flops to work

because, up to that point, Junk had not implemented a dress code. After returning from the

seminar, however, and in light of comments from Junk’s ex-mother-in-law that the officer

personnel “never looked professional up front”, Junk required that the women wear more-

professional office attire—“dress pants, dress clothes, no flip-flops.” Daniels “did not have a

problem with that at all” and “was more than willing to comply with” the new dress code.

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The final component of Junk’s effort to improve office productivity involved a directive

emphasizing that office computers were to be used for government work only. Even so, Junk did

allow the computers “to be used for personal use during lunchtime and after hours.” To ensure

compliance with the new policy, early one morning, Junk accessed the search histories on the

work computers used by the women in the office. When the women arrived for work, the search

histories remained on their screens to alert them that Junk indeed had checked on their

unauthorized computer usage.

Clearly, none of the remedial measures undertaken by Junk were, in and of themselves,

improper. Daniels alleged, however, that the directives were enforced in a discriminatory

manner. Specifically, she claimed in her deposition testimony that only the female employees in

the office were expected to abide by the 8:30–4:30 workday. But she also conceded, that

although the male employees did not work strictly from 8:30 until 4:30, they had been working,

and continued to work, five eight-hour days, usually from 7:00 a.m. until 3:00 p.m. Most of the

men, who worked outside the office, also were not required to clock in and clock out when

beginning and ending their workdays and were allowed to continue to wear jeans while

performing their official duties as investigators and diversion officers. Daniels also claimed that

Junk accessed the search histories only on the computers used by the female staff. Junk,

however, defended that fact by explaining that the layout of the office allowed him to see what

one of the male employees was doing on his computer during the day, and another male

employee normally was on the road driving individuals to and from court.

Daniels stated that, in addition to the allegedly discriminatory office policies

implemented by Junk, the prosecutor engaged in other actions that indicated a desire to treat

female employees more harshly than male employees, and Daniels more harshly than even other

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

female office staff. For example, at some point after requiring employees to clock in upon their

arrival at the office, Junk walked among the front-office staff, knowing that only the women

employees were required to clock in, and said, “So did everybody get punched in? Everybody

working. Nobody whining. That’s the way we like it.”

On other occasions, Junk allegedly tried to belittle or intimidate Daniels. Once, in the

presence of members of the public seeking information in the office, Junk stated, “[T]hese girls

have work they need to be doing. I’m just making sure they’re doing what they’re supposed to

do.” On another occasion, Junk, while addressing Daniels, said, “Well, there’s a song about

everything, and one of those songs is ‘Get the Fuck Out’ by Cee Lo Green.”

When Daniels and Barron inquired of their boss why he had accessed the search histories

on their computers, Junk reportedly “flipped out and said, ‘Don’t you two think you can’t be

replaced’” and “If you’re on the internet, then there’s things that aren’t getting done.” However,

when pressed by Daniels to identify work that had not been completed, Junk was unable to come

up with any instance of such a failure to perform an assigned task.

Daniels also highlighted in her deposition testimony the fact that, after the

implementation of the new office dress code, she had asked Junk if she could wait until after the

next payday to comply “so that [she] could get some additional clothing” that would fit her.

Even though Junk acquiesced to the request, a few days later, prior to the awaited payday, Junk

approached Daniels and inquired, “And didn’t I say we were going to change the dress code

around here? Aren’t you wearing jeans?” When Daniels reminded Junk that he had given her

additional time to purchase new clothes, he responded, “Well, if you say so,” and walked away.

Daniels also alleged that Junk enjoyed tormenting the women working in the office. As

an example, she recounted an occasion on which Junk entered the women’s work area and

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

popped a large piece of bubble wrap, causing Daniels to jump in fear. According to Daniels,

Junk engaged in such an action because “he wanted to see us shake or jump; he thought it was

funny. He wanted to upset us. He did it to upset us. He enjoyed seeing us upset.”

Nor was it only the women in the prosecutor’s office who noticed the unequal treatment

meted out to the female staff. Aaron Gullett, a former employee of the Pike County Sheriff’s

Office, ultimately replaced Daniels in the prosecutor’s office and “heard Rob Junk making

disparaging comments toward females, including, ‘That’s why I don’t like to hire women,’

‘That’s why it is a pain to hire women,’ and, ‘Working with men is so much easier than working

with women.’” Gullett also stated in a sworn affidavit that Junk and Investigator Charlie Reader

prodded him to take actions “specifically to annoy or upset Angie Farmer, the only female in the

office [after Daniels’s employment was terminated] and also a friend to Pam Daniels and Rachel

Barron.” Rather than do so, however, Gullett voluntarily left the prosecutor’s office after only

eight months “because of the things [he] saw and the way [his] employer Rob Junk and his

subordinates treated people at his behest.”

The event that set into motion the series of acts that ultimately resulted in Junk’s

termination of Daniels’s employment in his office occurred sometime either on or shortly before

January 15, 2014. According to Daniels,3 she was working at a vacant desk due to a problem

with her own printer when Junk called her name. When Daniels looked up, she saw Junk in the

doorway of an office holding an AR-15 rifle4 and heard him state, “Don’t worry. I’m not that

3

Junk offers a slightly different take on the interaction; however, because this matter comes before us on an

appeal from a grant of summary judgment, we view genuinely disputed facts in the light most favorable to Daniels,

the nonmoving party. See, e.g., Scott v. Harris, 550 U.S. 372, 380 (2007).

4

Although Daniels claims in her appellate brief that “Junk waved an assault rifle at her,” Appellant’s Br. at

9, the record before us does not support that assertion. Indeed, Daniels testified during her deposition that Junk held

the gun with his right hand lower than his left hand, “meaning the gun was being held up in the air.” (Page ID 239)

Moreover, she denied that Junk ever pointed the weapon at her. (Page ID 239)

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

mad, ha, ha, ha, ha.” Although Junk viewed the entire interaction as some sort of joke, Daniels

felt the display of the weapon “was just an intimidation tactic on Rob’s part.”

On January 15, 2014, Daniels went to the county court for a hearing as part of her duties

as a victim’s advocate/witness coordinator. While at the court, she spoke with Dominica

Hannah, a victim’s advocate with the Pike County Partnership Against Domestic Violence, and

with Tara Tackett, a deputy in the Pike County Sheriff’s Department. During that conversation,

Daniels recounted the gun incident and “went on about all the changes and the treatment in the

office,” disclos[ing] everything . . . [in the hope] that Tara was going to say something” to her

superiors so that Junk’s actions would come under scrutiny. Tackett indeed did contact Aaron

Gullett—then still a sheriff’s office employee—who, in turn, contacted his supervisor.

Within minutes, Charlie Reader, an investigator in Junk’s office, arrived at the sheriff’s

offices and took statements from Hannah and Tackett. Shortly thereafter, while Gullett was in

Junk’s office, Junk “fired Pam Daniels over the phone just a few hours after she reported the

incident with the gun to Tara Tackett.” Although an intern in the prosecutor’s office claimed

that Junk had told him that “he was firing Ms. Daniels because she was ‘disloyal’”, Junk himself

explained that he decided to fire Daniels because of the “statements that she made to Tara

Tackett and Dominic[a] Hannah,” and because of Daniels’s “job performance, attitude, arguing

with [him] all the time.” In fact, Junk claimed in his deposition testimony that Daniels “was

probably one of the least motivated people [he had] ever supervised.”

Daniels felt that even her termination for her alleged misconduct evidenced the differing

treatment accorded men and women in the office. Daniels explained that although she was fired

merely for reporting Junk’s inappropriate actions, Jason Savage, one of the male diversion

officers, was not fired even though he had an ongoing sexual relationship with a woman under

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his charge in the diversion program. Junk conceded that he had heard rumors about Savage’s

alleged relationship and had called Savage into his office to confront him with the information.

Savage admitted that he planned to marry the woman—and later did so—but denied that he had

engaged in any inappropriate conduct. To verify Savage’s claim, Junk arranged to have a

tracking device secretly placed on Savage’s work vehicle in an effort to document any improper

liaisons by the employee. However, Junk maintained that he was unable to obtain any evidence

of a relationship, other than mere rumor and opinion, and thus decided to drop the matter.

Daniels eventually filed a complaint and an amended complaint in federal district court,

asserting causes of action against Junk under both Title VII and under the Ohio Civil Rights Act

for creation of a hostile work environment, for termination on the basis of gender, and for

retaliation for exercising a federally protected right. She also asserted a state-law tort claim

against her former boss for alleged intentional infliction of emotional distress. Following

discovery, the district court granted Junk’s motion for summary judgment, concluding that

Daniels had failed to make out any of her federal or state causes of action.5

Addressing Daniels’s hostile-work-environment claims, the district court noted that some

of Junk’s acts highlighted by the plaintiff were not truly gender-based, but rather were simply

boorish or indicative of the interpersonal conflict between Daniels and Junk. Nevertheless, the

district court indicated that other acts and attitudes demonstrated the anti-female animus

necessary to proceed with a claim of a hostile work environment. But ultimately the district

court concluded that even those incidents were sporadic at best, did not involve any physical

5

Claims of gender discrimination based on a hostile work environment and of retaliation under Title VII

and those under the Ohio Civil Rights Act are treated identically. See, e.g., Hawkins v. Anheuser-Busch, Inc.,

517 F.3d 321, 322 (6th Cir. 2008) (sexual harassment claims); Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501,

510 (6th Cir. 2016 (retaliation claims).

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

contact or threats, and simply were not severe enough in nature or so objectively hostile “as to

alter the terms and conditions of [Daniels’s] employment.”

Similarly, the district court determined that Daniels’s claim of discriminatory termination

also fell short of the legal threshold necessary to pursue the cause of action further. Although

Daniels did adduce sufficient evidence to establish a prima facie case of discrimination, she was

unable to prove that Junk’s legitimate, nondiscriminatory reason for his employment decision

was merely a pretext for invidious, gender-based discrimination.

The district court also concluded that Daniels failed to offer sufficient, detailed evidence

that she had made specific claims of harassment or sex discrimination. Consequently, the court

held that the plaintiff did not engage in the protected activity that is essential to establishing a

claim of Title VII retaliation.

Finally, the district court noted that a plaintiff may not succeed on an Ohio tort claim of

intentional infliction of emotional distress unless that plaintiff establishes that the defendant’s

conduct was so outrageous as to be considered intolerable in civilized society. Because Daniels

failed to satisfy that onerous burden, the district court also granted Junk’s motion for summary

judgment on that state-law cause of action.

DISCUSSION

Standard of Review

We review de novo the grant of summary judgment by a district court. See Dodd v.

Donahoe, 715 F.3d 151, 155 (6th Cir. 2013). Summary judgment will be granted Aif 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). A genuine dispute of material fact exists

only when, assuming the truth of the nonmoving party=s evidence and construing all inferences

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

from that evidence in the light most favorable to the nonmoving party, there is sufficient

evidence for a trier of fact to find for that party. See Ciminillo v. Streicher, 434 F.3d 461, 464

(6th Cir. 2006). A nonmoving party cannot withstand summary judgment, however, by

introduction of a Amere scintilla@ of evidence in its favor. Id.

Hostile-Work-Environment Claims

Pursuant to the relevant provisions of Title VII:

It shall be an unlawful employment practice for an employer . . . to discriminate

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

privileges of employment, because of such individual’s . . . sex, . . . or . . . to

deprive any individual of employment opportunities or otherwise adversely affect

his status as an employee, because of such individual’s . . . sex . . . .

42 U.S.C. § 2000e-2(a)(1) and (2). The United States Supreme Court has interpreted these

provisions to provide protection to employees from a workplace that “is permeated with

discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an abusive working environment.” Harris v.

Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations and internal quotation marks omitted). Thus,

to establish a claim of a hostile work environment, a plaintiff must show that: (1) she is a

member of a protected class; (2) she was subjected to unwanted sexual harassment; (3) the

harassment was based on her sex; (4) the harassment was severe or pervasive enough to have

created a hostile work environment; and (5) the employer failed to take reasonable care to

prevent and correct any sexually harassing behavior. See Williams v. Gen. Motors Corp.,

187 F.3d 553, 560-61 (6th Cir. 1999).

Before this court, the parties do not dispute that Junk did, at times, harass Daniels and

that male and female employees in Junk’s office were treated differently. They disagree,

however, both on whether any such harassment or disparate treatment was precipitated by anti-

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female animus and on whether the harassment was severe or pervasive enough to alter the

conditions of Daniels’s employment in the office.

For purposes of this case, therefore, we first must determine whether any harassment or

disparate treatment experienced by Daniels was based on her sex or on some less suspect ground.

Before delving into that thicket, it is wise to reiterate that harassment “based on sex” need not be

“sexual”—as that term is understood in general parlance. As we made clear in Williams, “the

law recognizes that non-sexual conduct may be illegally sex-based where it evinces ‘anti-female

animus, and therefore could be found to have contributed significantly to the hostile

environment.’” Id. at 565 (quoting Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 905 (1st Cir.

1988)). In other words, “the conduct underlying a sexual harassment claim need not be overtly

sexual in nature. Any unequal treatment of an employee that would not occur but for the

employee’s gender may, if sufficiently severe or pervasive under the Harris standard, constitute

a hostile environment in violation of Title VII.” Id. (emphasis in original).

Although Daniels attempts to cast all challenged employment actions taken by Junk in

sexual-harassment terms, it is clear from the record before us that other considerations influenced

many of those decisions. For example, Daniels argues that male employees were not required to

clock in and out of work when the women in the front office were, that the men were not

required to maintain 8:30 to 4:30 hours when the female office staff was, and that men were

allowed to wear jeans to work when the women were not. However, Junk explained that the

different standards were based not on sex but, rather, on job functions and responsibilities. Junk

admitted that Charlie Reader, Brian Reader, and Earl Swepston did not work uniform 8:30 to

4:30 days. Charlie Reader, however, was an investigator, was not expected to perform office

functions during normal office hours, and, thus, was allowed to work from 7:00 until 3:00.

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Swepston, and Brian Reader also worked from 7:00 until 3:00 but, Junk said, that was because

their responsibilities involved bringing detainees into court and fulfilling other duties that were

performed more efficiently prior to 8:30. Moreover, other male employees did adhere to the

8:30 to 4:30 work day, even though “[i]t didn’t work out as good as the 7:00 to 3:00” schedule.

As alleged by Daniels, some of the men did not have to clock in and out of work and

were allowed to wear jeans on the job. All employees, however, were allowed to wear jeans on

Fridays, and some of the male employees were not expected to wear office-appropriate clothing

even on other workdays because their jobs entailed physical components incompatible with

office dress. For example, during his deposition testimony, Junk specifically referenced Savage

and Swepston, both of whom were diversion officers who worked with inmate crews in ditches

throughout the county. Even so, Junk still did not want those employees “coming in just like

they got off a Harley-Davidson or ready to go wash the car.”

However, other acts and comments by Junk could be construed as evidence of anti-

female animus because the prosecutor did not harass, belittle, or oversee male employees in the

same manner as he did Daniels and other female employees. Junk checked the search histories

on only the women’s computers; he stated in front of members of the public that he needed to

check on only the women in the office to ensure that they were completing their work; he asked

only the female employees if they had clocked in; he expressed gratitude to only the women in

the office that they were working and not whining; “oftentimes, instead of addressing [the female

employees] directly, he would speak to others about them as if they were not present”; he made

unambiguous comments that he didn’t like to hire women and that it was easier to work with

men than women; and he once popped bubble wrap behind Daniels because he enjoyed

tormenting and upsetting the women and “wanted to see [them] shake or jump.”

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In the aggregate, such behavior clearly raises at least the specter of anti-female animus.

Such harassment is not actionable under Title VII and under the Ohio Civil Rights Act, however,

unless Junk’s conduct also can be considered severe or pervasive enough to create a hostile work

environment. “[T]he test for a hostile work environment has both objective and subjective

components.” Williams, 187 F.3d at 566. As explained in Harris:

Conduct that is not severe or pervasive enough to create an objectively hostile or

abusive work environment—an environment that a reasonable person would find

hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does

not subjectively perceive the environment to be abusive, the conduct has not

actually altered the conditions of the victim’s employment, and there is no Title

VII violation.

510 U.S. at 21-22.

There can be little doubt that Daniels subjectively perceived the working environment in

Junk’s office to be hostile and abusive. She claimed that by the end of her employment in the

office, her “nerves were shot”, and that Junk did not seem to be happy “unless he was, he was

upsetting [the women employees].”

When determining whether a working environment is objectively hostile or abusive, we

have been directed by the Supreme Court to consider the totality of the circumstances, id. at 23,

meaning that we cannot “disaggregrate” the alleged incidents of harassment, “divorcing them

from their context and depriving them of their full force.” Williams, 187 F.3d at 562. Instead,

we must examine the “frequency of the discriminatory conduct; its severity; whether it is

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

interferes with an employee’s work performance.” Harris, 510 U.S. at 23; see also Bowman v.

Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). But “Title VII does not prohibit

‘genuine but innocuous differences in the ways men and women routinely interact with members

of the same sex and of the opposite sex,’” and “‘simple teasing,’ offhand comments, and isolated

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incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and

conditions of employment.’” Faragher, 524 U.S. at 788 (quoting Oncale, 523 U.S. at 81-82).

Daniels and Barron pointed to numerous incidents that they asserted were objectively

hostile or abusive. The district court succinctly catalogued those actions by Junk as follows:

(1) he permitted male diversion officers (excluding Jason Savage) to work hours

other than 8:30 a.m. to 4:30 p.m.; (2) he did not strictly require male diversion

officers (excluding Jason Savage) to punch a time clock; (3) he accessed female

employees’ computers to check on their personal internet search histories and, on

one occasion, he accessed and left female employees’ search histories on their

computer screens; (4) he prohibited plaintiff Barron from cashing in her vacation

time, but permitted male employees to do so; (5) he laughed and chatted with

male employees, but “smirked” at female employees; (6) on one occasion, he

commented to plaintiff Daniels that she looked like she had lost her best friend;

(7) he loudly popped packing materials in the area where the female employees

worked; (8) he told members of the public on one or two occasions that “these

girls have work they need to be doing. I’m just making sure they’re doing what

they’re supposed to do.”; (9) he stated in front of female employees, “Everybody

working. Nobody’s whining. That’s the way we like it.”; (10) he asked, in front

of the female employees, whether “everyone” had punched the time clock; (11) he

spoke to others about plaintiffs as if plaintiffs were not present; and (12) he asked

plaintiff Daniels on one occasion why she was wearing jeans and said “if you say

so” and stomped off when plaintiff Daniels reminded him that he had given her

additional time to comply with the dress code.

Additionally, Daniels mentioned in her filings before both the district court and before us the

incident in which Junk, while holding an AR-15, commented to Daniels that he was “not that

mad” and then laughed.

There is little doubt that the working relationship between Junk and Daniels deteriorated

significantly after October 2013. However, the listed instances of alleged harassment, even in

the aggregate, would not be considered by a rational person to be sufficiently severe or pervasive

so as to alter the conditions of the plaintiff’s employment. One of the instances of alleged

harassment—the prohibition on Barron taking cash rather than leave time for accrued vacation

days—did not even concern Daniels. Numerous others involved implementation of office

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policies that reflected the realities of the responsibilities of office personnel. Others were

relatively innocent, singular occurrences, comments that were not objectively hostile or abusive,

or “mere offensive utterance[s].” Even the incident involving Junk’s comment while holding a

firearm was not as severe as it might otherwise have been in a different scenario given the fact

that the record established that guns were regularly carried (and presumably displayed) in the

prosecutor’s office. Without question, Junk’s actions in that regard showed both immaturity and

bad judgment. The totality of the circumstances, however, do not support the conclusion that the

working environment was objectively hostile or abusive. The district court thus did not err in

granting summary judgment to Junk on Daniels’s hostile-work-environment claims.

Termination Claims

Daniels also asserts that Junk violated the provisions of Title VII and the Ohio Civil

Rights Act by firing her from her job because she was a female. A plaintiff in such an

employment-discrimination case may seek to establish her claim “either by introducing direct

evidence of discrimination or by presenting circumstantial evidence that would support an

inference of discrimination.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014)

(citation omitted). Although evidence was adduced in this matter that Junk stated that he did not

like to hire women and that he found it easier working with men, Daniels offered no direct

evidence that she was fired due to her gender. Thus, for her to succeed on her claims of

wrongful termination, she must seek to prove unlawful discrimination by circumstantial evidence

utilizing the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), and refined in Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981).

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Under that paradigm, a plaintiff first must establish a prima facie case of discrimination.

Burdine, 450 U.S. at 252-53 (citing McDonnell Douglas, 411 U.S. at 802). If the plaintiff can do

so, the burden of production shifts to the defendant to “articulate some legitimate,

nondiscriminatory reason for the [alleged adverse action.]” Id. (quoting McDonnell Douglas,

411 U.S. at 802). The plaintiff then is required to prove that the reasons proffered by the

defendant were not the true motivations for the defendant’s actions, but were mere pretexts for

prohibited discrimination. Id. (citing McDonnell Douglas, 411 U.S. at 804).

We have held repeatedly that a plaintiff’s burden of establishing a prima facie case is not

an onerous one, see, e.g., Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 660 (6th Cir. 2000)

(citing Burdine, 450 U.S. at 253), and is “a burden easily met.” Wrenn v. Gould, 808 F.2d 493,

500 (6th Cir. 1987) (citations omitted). In a gender-discrimination case, a plaintiff thus initially

needs to show only that: “(1) she is a member of a protected group; (2) she was subjected to an

adverse employment decision; (3) she was qualified for the position; and (4) she was replaced by

a person outside the protected class . . . .” Peltier v. United States, 388 F.3d 984, 987 (6th Cir.

2004). Daniels easily overcame that hurdle by introducing evidence that she was a woman who

was qualified for the job she held but was fired from that position and replaced by Aaron Gullett,

a male.

Junk then successfully articulated nondiscriminatory reasons for the termination decision.

According to the prosecutor, Daniels had problems showing up for work on time, was hostile and

short with him, and “always wanted to argue.” He specified, however, that he fired the at-will

employee both because of the statements she made about him to Tackett and Hannah and

because of her poor job performance and attitude. Given the fact that Daniels then failed to offer

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

any evidence that those reasons actually were pretexts for invidious discrimination, the district

court did not err in granting summary judgment to Junk on these causes of action as well.

Retaliation Claims

Title VII and the Ohio Civil Rights Act also make it unlawful for employers to retaliate

against employees for engaging in “protected activity,” such as opposing any practice made

unlawful by the legislation, or lodging charges of discrimination. 42 U.S.C. § 2000e-3(a); Ohio

Rev. Code § 4112.02(I). Daniels asserts, however, that Junk did just that by terminating her

employment after she complained to Tara Tackett and Dominica Hannah about harassment and

discrimination in the prosecutor’s office.

As with claims of disparate treatment, a plaintiff may establish a claim of retaliation in

violation of Title VII and the Ohio Civil Rights Act through either direct or circumstantial

evidence. Yazdian v. ConMed Endoscopic Techs., Inc., 793 F.3d 634, 644-45 (6th Cir. 2015).

“Direct evidence is that evidence which, if believed, requires no inferences to conclude that

unlawful retaliation was a motivating factor in the employer’s action.” Imwalle v. Reliance Med.

Prods., Inc., 515 F.3d 531, 543-44 (6th Cir. 2008). “If there is direct evidence of retaliation, then

the plaintiff’s case-in-chief is met, and the burden shifts to the employer to prove by a

preponderance of the evidence that it would have made the same decision absent the

impermissible motive.” Yazdian, 793 F.3d at 648 (citation and internal quotation marks

omitted).

In this case, Junk readily admits that “[o]ne of the reasons” he fired Daniels was the fact

that she proved to be “disloyal” by making statements about him and about the office atmosphere

to Tackett and Hannah. Although Junk then attempted to temper that assertion by claiming that

Daniels’s job performance, her attitude, and her continual arguing also contributed to the

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

decision to terminate her employment, he conceded that he had no immediate plans to fire her

before she made the statements. Under such circumstances, we conclude that Daniels succeeded

in offering direct evidence of retaliation to the extent that her conversation with the other county

employees in the courthouse could be considered “protected activity.”

The district court properly held that the fact that Daniels confided in a deputy sheriff and

in a victim’s advocate of a county organization combatting domestic violence—rather than in the

sheriff himself or in the county commissioners—did not mean that she failed to report her

complaint to an appropriate individual. As the district court noted, we have stated clearly “that

there is no qualification . . . on the party to whom the complaint is made known . . . .” Johnson

v. Univ. of Cincinnati, 215 F.3d 561, 580 (6th Cir. 2000). Indeed, a complaint of a possible Title

VII violation “may be made to a co-worker, newspaper reporter, or anyone else.” Id. (emphasis

added).

Although the complaint need not “be lodged with absolute formality, clarity, or

precision,” Yazdian, 793 F.3d at 645 (citation omitted), it cannot be merely a “vague charge of

discrimination.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir.

1989). In granting summary judgment to Junk on Daniels’s retaliation claims, the district court

concluded that the plaintiff’s statements to Tackett and Hannah were just such vague charges.

The district court did note that Daniels testified in her deposition that she told Tackett and

Hannah “about the behavior in the office . . . [the] environment” and that she “just went on about

all the changes and the treatment in the office . . . and disclosed everything to Nika and Tara.”

(Emphasis added.) Nevertheless, the district court held that such allegations failed to state

specifically that Daniels “was being sexually harassed or discriminated against on account of her

sex or gender.” Furthermore, the district court refused to consider as an explanation of those

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

conversations Daniels’s subsequent statement in an affidavit that she told Tackett and Hannah

that she “was being sexually harassed and treated differently in the office.” According to the

district court, the statement in the affidavit contradicted Daniels’s earlier deposition testimony

without providing an explanation for the disparity.

The district court’s view of Daniels’s deposition testimony appears to be too narrow,

especially at the summary-judgment stage of the litigation when all inferences are to be viewed

in the light most favorable to the nonmoving party. Daniels’s statement in her deposition that

she discussed “all the changes and the treatment in the office” with Tackett and Hannah and that

she disclosed “everything” to them encompasses more than her mere disagreement with “office

policies and managerial style.” Indeed, Daniels’s deposition was replete with allegations of

differing treatment of male and female employees, of efforts to harass and belittle Daniels and

Barron, and of an intimidating atmosphere that the women were forced to endure on a daily

basis. When Daniels referred to “the treatment in the office,” there is little doubt that she was

referencing the alleged harassment and disparate treatment that she had described and that she

later referenced in her affidavit before the court. Thus, we find no inconsistency or contradiction

between Daniels’s deposition testimony and the specific allegations in her affidavit. Because

Daniels’s complaints to Tackett and Hannah, when viewed in their full context, were not vague

or contradictory, the plaintiff did indeed engage in protected activity when discussing the culture

and atmosphere of the office. Combined with Junk’s admission that he terminated Daniels’s

employment because she made those statements, we conclude that Daniels has raised at least a

genuine dispute of material fact that precludes summary judgment for the defendant on her

retaliation claims.

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

Claim of Intentional Infliction of Emotional Distress

In a final allegation of error, Daniels contends that the district court improperly granted

Junk summary judgment on her state-law tort claim of intentional infliction of emotional distress.

Under Ohio law, plaintiffs seeking to succeed on a claim of intentional infliction of emotional

distress bear a heavy burden and must establish:

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

have known that 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 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 plaintiff’s psychic injury; and 4) that the mental anguish

suffered by plaintiff is serious and of a nature that no reasonable man could be

expected to endure it.

Hayward v. Cleveland Clinic Found., 759 F.3d 601, 619 (6th Cir. 2014) (quoting Pyle v. Pyle,

463 N.E.2d 98, 103 (Ohio Ct. App. 1983) (citations and internal quotation marks omitted)).

Daniels’s state-law cause of action fails on many fronts. First, the plaintiff failed to offer

any evidence, other than her own conjecture, that Junk intended to cause Daniels emotional

distress or should have known his actions would cause such a severe reaction. Furthermore,

although many of Junk’s antics were boorish, juvenile, and perhaps even mean-spirited, we

cannot say they were so intolerable as to go beyond all bounds of decency. Finally, “the mental

anguish” suffered by Daniels was not so serious “that no reasonable [person] could be expected

to endure it.” In fact, after Daniels was fired in January 2014, she waited until August 2014 to

see a physician about her emotional state and, at that time, was prescribed only a common anti-

anxiety drug and did not require hospitalization or intensive therapy.

In short, Daniels has not adduced evidence sufficient to create a genuine dispute of fact

regarding her claim of intentional infliction of emotional distress. The district court thus did not

err in granting Junk summary judgment on that cause of action.

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

CONCLUSION

Plaintiff Daniels has failed to adduce sufficient evidence to support her allegations that

she was fired by Junk because of her gender, that harassment in the office was so severe or

pervasive as to create a hostile work environment, or that Junk intentionally inflicted the degree

of emotional distress that would allow her claims in those regards to proceed to trial. However,

Daniels did offer sufficient evidence to allow further consideration of her federal-law and state-

law retaliation claims. We thus AFFIRM the district court’s grant of summary judgment to the

defendant on Daniels’s hostile-work-environment, termination, and state-tort claims. We

REVERSE the grant of summary judgment on the plaintiff’s retaliation claims and REMAND

the matter to the district court for such further proceedings as are appropriate.

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in

part. I concur with the majority that summary judgment is inappropriate with respect to

Daniels’s retaliation claim. However, I respectfully dissent from the majority’s conclusion that

summary judgment is appropriate with respect to Daniels’s claims of a hostile work

environment, termination on the basis of gender, and intentional infliction of emotional distress.

With respect to Daniels’s hostile-work-environment claim, I believe that Daniels has

pointed to sufficiently severe and pervasive examples of sexual harassment “to alter the

conditions of [Daniels’s] employment and create an abusive working environment.” Phillips v.

UAW Int’l, 854 F.3d 323, 327 (6th Cir. 2017) (quoting Williams v. CSX Transp. Co., 643 F.3d

502, 512 (6th Cir. 2011)). “In determining whether an actionable hostile work environment

claim exists, we look to all the circumstances, including the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work performance.” Id.

(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). Frequent examples

of Pike County Prosecutor Robert Junk treating women differently than men, often in

humiliating fashion, R. 36 (Op. & Order at 23–24) (Page ID #545–46) (listing twelve instances

of harassing or discriminatory conduct toward women in the office), alongside Junk’s

discriminatory statements about women in the workplace, R. 31-3 (Gullett Aff. ¶ 20) (Page ID

#407), would permit a reasonable juror to conclude that there was a hostile work environment.

In one particularly egregious example, reasonable jurors could even find that Junk’s conduct was

“physically threatening.” Phillips, 854 F.3d at 327. At a point when Junk and Daniels “were not

on good terms,” Junk—while holding an AR-15—told Daniels, “Don’t worry. I’m not that mad,

ha, ha, ha, ha.” R. 26-2 (Daniels Dep. at 30–31) (Page ID #235–36). Other courts have held

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

similar behavior to constitute a hostile work environment, and I would do the same here. See

Cordero-Suárez v. Rodríguez, 689 F.3d 77, 79, 82–83 (1st Cir. 2012) (holding that a supervisor

who approached an employee’s desk with a work-issued gun and said “I’m going to screw you

up” contributed to a hostile work environment).

I would also reverse the district court’s judgment with respect to Daniels’s termination

claim, particularly because of the genuine issues surrounding pretext. The strongest evidence of

discriminatory pretext are Junk’s “disparaging comments toward females, including, ‘That’s why

I don’t like to hire women,’ ‘That’s why it is a pain to hire women,’ and ‘Working with men is

so much easier than working with women.’” R. 31-3 (Gullett Aff. ¶ 20) (Page ID #407). These

statements are almost direct evidence that Junk made employment decisions on the basis of

gender. At the very least, I believe that they create a genuine issue of material fact on whether

Daniels was actually terminated because of her sex.

Finally, I believe that summary judgment is inappropriate on Daniels’s claim of

intentional infliction of emotional distress (“IIED”). An IIED claim has four elements under

Ohio law: “1) that the actor either intended to cause emotional distress or knew or should have

known that 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 plaintiff’s psychic injury; and 4) that the mental

anguish suffered by plaintiff is serious and of a nature that no reasonable man could be expected

to endure it.” Hayward v. Cleveland Clinic Found., 759 F.3d 601, 619 (6th Cir. 2014) (quoting

Pyle v. Pyle, 463 N.E.2d 98, 103 (Ohio Ct. App. 1983)). There is sufficient evidence of Junk’s

intent to cause emotional distress to permit a reasonable juror to find in Daniels’s favor on the

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No. 16-4000, Daniels, et al. v. Pike County Commissioners, et al.

first element: Junk stated that he did not like working with women. R. 31-3 (Gullett Aff. ¶ 20)

(Page ID #407). And Junk appeared to know what he was doing when he harassed Daniels.

R. 26-2 (Daniels Dep. at 60–62) (Page ID #265–67). A reasonable juror could also find in

Daniels’s favor on the second, third, and fourth elements: Junk repeatedly demeaned Daniels,

threatened her with a gun, discriminated against her, and pranked her. Daniels visited a doctor

because of “the whole stress of this whole thing” and was prescribed a drug that treats anxiety.

Id. at 57–58 (Page ID #262–63).

In sum, I believe that genuine issues of material fact are present in all of Daniels’s claims.

Therefore I would reverse the judgment of the district court in its entirety.

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