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Ayres v. Brewer Co.

July 26, 2006

TAMMY AYRES, PLAINTIFF,
v.
THE BREWER COMPANY DEFENDANT.



The opinion of the court was delivered by: Judge Michael R. Barrett

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon Defendants' Motion for Summary Judgment (Doc. 17). Plaintiff has filed a Response in Opposition (Doc. 26) and Defendants have filed a Reply (Doc. 27). This matter is now ripe for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

In her Complaint, Plaintiff Tammy Ayres ("Ayres") brought claims of sexual discrimination and harassment under Title VII of the Civil Rights Act of 1964 and Ohio Revised Code §§4112.02 and 4112.99 against Defendant, The Brewer Company ("Brewer"), her former employer (Doc. 1).*fn1

Brewer initially hired Ayres as a laborer in its "Utility Division" in July of 2000 (Ayres Depo. at 29-31, Doc. 1 and 3). Ayres worked for Brewer until May 23, 2003 (Doc. 1 and 3). Brewer's Utility Division lays gas pipe and performs related services for Cinergy (now known as Duke Energy) (Def. Interrogatory Answers, Int. 17). Initially, Ayres performed the job duties of a flagger and was later operating a directional bore machine, called a "ditch witch", which requires two laborers to operate (Doc. 1, Doc. 3 and Fetters Depo. at 34). Throughout Ayres employment with Brewer she was laid off and called back to work on several occasions (Ayres Depo. at 47-49). The Utility Division employed approximately 80 laborers at the time Plaintiff's employment with Brewer ended (Def. Interrogatory Answers, Int. 17). Nearly all of those laborers were male and all of Plaintiff's supervisors and managers were male (Decl. T. Ayres, ¶ 8, Doc. 1 and Doc. 3). Among Plaintiff's immediate supervisors were Kevin Parker and Jay Fetters, who were designated as "crew leaders" and "foreman" (Kevin Parker Depo. at 11, Fetters Depo. at 9-11). Ken Parker, Kevin's father, was the "supervisor" (Kevin Parker Depo. at 11). Ayers was not provided with a copy of Brewer's policy on sexual harassment or even informed if such a policy existed (Decl. T. Ayres, ¶7).

Several times a year Brewer would select certain employees to be trained with "live gas". Once this training was completed the employee would receive a "live gas card" and earn $.50 more per hour (Kevin Parker Depo. at 86). Plaintiff repeatedly asked to receive this training (Ayres Depo. at 142, 206). Defendant continuously refused Plaintiff the opportunity (Doc. 1 and 3) and states that it was because she was overweight (Ken Parker Depo. at 44). However, virtually every male laborer that Plaintiff knew, including those larger than her, was given the opportunity to be certified (Ayres Depo. at 142-143, 206; Decl. T. Ayres, ¶20).

Plaintiff believes that there exists a bias against women at Brewer. Examples of this bias include, but are not limited to, statements made by Kevin Parker which include "women were only to be flagging" (Decl. Vincent, ¶9; Decl. Updike, ¶5), "women were not leaders", "Mr. Dilillo wanted to get rid of all the women laborers" and "Mr. Dilillo disliked women worse than his father did" (Decl. T. Ayres, ¶¶12-14, Decl. Vincent, ¶9). In addition, women were denied bathroom breaks when men were not and Plaintiff was referred to as "cupcake" and "sweetheart" by Mr. Fetters (Decl. T. Ayres, ¶11; Decl. Updike, ¶¶7, 9; Decl. Vincent, ¶7; Decl. B. Ayres, ¶4). Plaintiff and at least one other female employee were asked by Mr. Fetters, "Do you spit or swallow?" (Decl. Updike, ¶8). He also told Plaintiff that if her husband could not keep her happy sexually that he could (Id). Furthermore, the company work trucks contained pornographic magazines in plain view (Decl. Gash, ¶8; Decl. Updike, ¶6; Decl. R. Ayres, ¶7; Decl. B. Ayres, ¶5). The day before Plaintiff was laid off Ken Parker became angry with Plaintiff about a shirt she was wearing and he stated, "the problem with you is you're a f[**]king woman" (Decl. T. Ayres, ¶15; Decl. D. Ayres, ¶7).

Plaintiff's husband, Ronald Ayres, made a complaint to the Safety Director about the sexual harassment the women employees, including Plaintiff, were facing. In December, 2002 or January, 2003, Ronald and David Ayres also complained to the President of the company. No action was taken by the Defendant (Decl. R. Ayres, ¶¶8, 9; Decl. D. Ayres, ¶8).

Prior to being laid off, Plaintiff's crew, including Plaintiff, were told that they would be moving to a new job on Edwards Road (Decl. T. Ayres, ¶17). Instead, Plaintiff was laid off. Plaintiff was the only member of her crew laid off (Decl. T. Ayres, ¶17; Ken Parker, Depo. at 62). Ken Parker could not provide an explanation as to why this was the case (Ken Parker, Depo. at 76-77).

II. ARGUMENTS OF THE PARTIES

Defendant argues that it is entitled to summary judgment on Plaintiff's claim of a hostile work environment because (1) the harassment was not unwelcomed, (2) the harassment was not sufficiently severe or pervasive enough to create a hostile work environment, (3) the harassment was not based on sex, and (4) Defendant did not know of the harassment. The Defendant also argues that it is entitled to summary judgment as to Plaintiff's claim of gender discrimination because, Defendant argues, she was not allowed to receive live gas training due to her size, not her gender. Defendant further argues that gender had no role in the decision not to call her back to work. Finally, Defendant argues that it should prevail on its motion for summary judgment as to Plaintiff's claim for retaliation. This argument is based on Defendant's assertion that Plaintiff did not engage in protected activity and, even if she did, there is no causal connection between this activity and her subsequent failure to be recalled back to work.

Plaintiff argues that there are questions of fact at issue which make summary judgment inappropriate. Specifically, Plaintiff responds that she was subjected to sexual harassment which included, unwanted sexual advances, excessive verbal abuse, exposure to pornographic magazines, comments made about her body, being called insulting, offensive and humiliating names, being denied bathroom breaks and drinks and being give demeaning jobs not assigned to male employees - all of which created a hostile work environment. In addition, Plaintiff argues that she was denied the opportunity to receive live gas training and that she was laid off because she is a women. Finally, Plaintiff argues that she was retaliated against by not being called back to work because her relatives complained about the sexual harassment she was enduring on the job.

III. ANALYSIS

A. Summary Judgment ...


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