Payton v. Receivables Outsourcing, Inc. , 2005 Ohio 4978 ( 2005 )

{¶ 48} I respectfully dissent from the majority's decision to reverse and remand this case for the following reasons.

{¶ 49} As to the employee's claim of sexual harassment, I would find that while the alleged harasser's comments were rude and unprofessional, to say the least, as a matter of law, they were neither severe nor pervasive. Not all workplace conduct having sexual connotations can be classified as actionable sexual harassment. See Harris v. Forklift Sys., Inc. (1993),510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295; Meritor Sav. Bank v.Vinson (1986), 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49. Furthermore, we have held that sexual harassment laws were not intended to create sterile workplaces, completely void of vulgarity. Vitatoe v. Lawrence Industries, Inc.,153 Ohio App.3d 609, 616, 2003-Ohio-4187, 795 N.E.2d 125. In comparing the alleged harasser's conduct with other factual situations from similar cases, I believe that the employee failed to prove that the conduct was severe or pervasive enough to affect the terms, conditions, or privileges of her employment.

{¶ 50} As to the employee's claim of retaliation, I would find that Clark Cty. School Dist. v. Breeden (2001),532 U.S. 268, 121 S.Ct. 1508, 149 L.Ed.2d 509, applies to the case at bar.Breeden held that mere temporal proximity between an employer's knowledge of a protected activity and an adverse employment action is sufficient to establish a prima facie case. Id. at 273,121 S.Ct. 1508, 149 L.Ed.2d 509. However, this evidence alone does not seem to be enough to overcome the burden-shifting required to survive a summary judgment motion. The employee put forth no other evidence of causation, and accordingly, she did not meet her final burden of production in order to submit her retaliatory-discharge claim to a trier of fact.

{¶ 51} As to the employee's claim of negligent retention, I would find that because the conduct in question was not severe or pervasive sexual harassment as a matter of law, this claim cannot now be the basis underlying a negligent-retention claim. SeeMyers v. Goodwill Industries of Akron, Inc. (1998),130 Ohio App.3d 722, 721 N.E.2d 130.

{¶ 52} I would affirm the trial court's granting summary judgment to the employer on the employee's claims of sexual harassment, retaliatory discharge, and negligent retention, because as a matter of law, the employee's evidence is insufficient to establish her claims.