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Netus v. University of Cincinnati

July 26, 2006

APRIL NETUS, PLAINTIFF,
v.
UNIVERSITY OF CINCINNATI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra S. Beckwith, Chief Judge United States District Court

ORDER

This matter is before the Court on Defendants' motion for summary judgment on all claims. (Doc. 23). Plaintiff opposes summary judgment only on her claim of retaliation under federal law against Defendant the University of Cincinnati (hereinafter, "U.C."). For the reasons that follow, Defendants' motion for summary judgment is GRANTED.

I. Introduction

Plaintiff April Netus brings this action against Defendants U.C. and Francisco J. Gomez and Simon L. Newman, both employees of U.C. Plaintiff claims that while she was employed as a Research Assistant with U.C., Dr. Newman treated her differently from male employees and he and Dr. Gomez harassed her because of her sex. Plaintiff claims she complained to numerous administrators at U.C. and requested an investigation into Dr. Gomez's actions and into Dr. Newman's disparate treatment of women. Plaintiff claims she received unwarranted disciplinary action from Dr. Newman and others after filing a formal complaint against Dr. Newman alleging he had created a hostile work environment based upon Plaintiff's sex and in retaliation for Plaintiff's complaints of assault and sexual harassment against Dr. Gomez. Plaintiff further claims that Dr. Gomez retaliated against her after she filed charges against him in Hamilton County, Ohio. Finally, Plaintiff claims that U.C. discriminated against her and created a hostile environment based on her sex and retaliated against her by terminating her employment.

II. Background

Defendant Simon Newman holds a Ph.D. and is a researcher and a tenured professor in U.C.'s Department of Internal Medicine, Division of Infectious Diseases. (Newman Decl., ¶ 1). In addition to his teaching responsibilities, Dr. Newman conducts grant-funded research in the study of histoplasma capsulatum, a fungus that can be fatal to humans with immune system deficiencies. (Id. at ¶ 2). Dr. Newman has supervised a research laboratory in U.C.'s Medical Sciences Building since 1987. (Id. at ¶ 1). Defendant Francisco Gomez is a physician and an assistant professor of medicine in the Division of Infectious Diseases. (Gomez Decl. ¶ 1). He conducts grant-funded research and operates his own lab in the Veterans Administration Hospital. (Id. at ¶ 2).

Plaintiff began her employment with U.C. in 2001 as a Research Assistant. (Plaintiff's depo., p. 51). After a brief break in her employment, she was re-hired in September 2002 as a Research Assistant in Dr. Newman's lab. (Id., p. 65). Plaintiff's duties included setting up experiments for Dr. Newman's research, preparing tissue cultures, stocking solutions, performing radiation safety checks, making reagents, stocking lab supplies, and performing other general lab administration and maintenance duties. (Id., pp. 67-69). Typically, Dr. Newman outlined Plaintiff's duties for her on a day-to-day basis. (Id., p. 73).

On March 28, 2003, Plaintiff and a co-worker, Emily Powell, encountered Dr. Gomez and his research assistant at a restaurant during lunch. (Id., pp. 147-48). Dr. Gomez sent drinks to Plaintiff and Ms. Powell. (Id., p. 148). Plaintiff took one sip of her drink and then offered it to Dr. Gomez when she got up to leave the restaurant. (Id., pp. 148-49). Dr. Gomez, who apparently was intoxicated, stood up, grabbed Plaintiff's hair and, according to Plaintiff, held the drink up over her head and began to shake her head. (Id., pp. 149-50). Dr. Gomez laughed and said, "I now baptize you in the name of the Father, the Son, and the Holy Ghost." (Id., p. 150). Plaintiff and Ms. Powell immediately left the restaurant and Plaintiff reported the incident to Dr. Newman and to Heather Kaminsky, U.C.'s Business Administrator with the Department of Internal Medicine. (Id., pp. 151, 156, 163). Dr. Newman advised Plaintiff to go home and said that he would meet with Dr. Gomez and discuss the incident with him. (Id., pp. 161-62). Dr. Newman agreed that what Dr. Gomez had done was wrong. (Id., p. 169). Plaintiff also spoke to Dr. George Deepe, Director of the Division of Internal Medicine, Division of Infectious Diseases, about the incident shortly thereafter. (Id., p. 165). Dr. Gomez subsequently apologized to Plaintiff at Dr. Deepe's request. (Id., p. 167).

Plaintiff received her first and only performance evaluation in June of 2003. (Id., exh. 2). Dr. Newman completed the evaluation, which was for the period from September 17, 2002 to June 30, 2003. Plaintiff was rated "consistently meets and often exceeds performance standards" in 20 categories; "consistently meets performance standards" in 14 categories; and "does not consistently meet performance standards; often requires guidance or direction" in 5 categories. The evaluation included the following comments:

For the most part April has performed well. She still has some trouble with some of the calculations, and understanding some of the experiments we are doing. However, she has continued to improve on a daily basis and has a good handle on the techniques she has learned. I am happy with her current progress.

Several months later, on October 2, 2003, Plaintiff's attorney sent a letter on her behalf to Linda L. Price, Assistant Dean for Faculty and Administrative Affairs at U.C.'s College of Medicine. (Id., exh. 4). In the letter, counsel informed Ms. Price that it was his understanding that Plaintiff had spoken with Ms. Price "about the continued harassment" by Dr. Newman and that Plaintiff had informed counsel that Dr. Newman "has a history of treating women different from male employees that he supervises." Counsel asked Ms. Price to investigate Plaintiff's claims of a hostile environment and her claims "that she is being treated differently and yelled at on a continuing basis."

Plaintiff met with individuals at U.C.'s Office of Equal Opportunity (hereinafter, "OEO") with regard to her complaint on October 29, 2003. Plaintiff told the OEO representatives that Dr. Newman screamed and cursed at her but not at Jeremy Hilty, a male graduate student who was doing his thesis research in Dr. Newman's lab. (Id., p. 253). Following the meeting, on November 24, 2003, OEO Assistant Director Kecia Pringle requested a summary of Plaintiff's complaint in writing, including documentation as to what had taken place. (Id., exh. 5). Ms. Pringle invited Plaintiff to contact her for any assistance. (Id.) Plaintiff sent an e-mail in response, asking if she could have the summary to Ms. Pringle by the second week in December. (Id., exh. 6). Plaintiff does not recall if she provided anything in writing to Ms. Pringle within that time frame. (Id., p. 263).

On January 28, 2004, Plaintiff, who had been working in one area of the lab that was separated from the computer office area by a partition, walked across the hallway into the computer office area and saw Dr. Gomez and Mr. Hilty sitting together looking at the computer. (Id., pp. 273, 276). It appeared to Plaintiff that Dr. Gomez was helping Mr. Hilty with something. (Id., p. 276). According to Dr. Gomez, Mr. Hilty had contacted him some time in January about a problem Mr. Hilty was having in Dr. Gomez's area of expertise, molecular biology. (Gomez decl., ¶ 4). Dr. Gomez was early for a meeting at U.C.'s Medical Sciences Building on the 28th, so he stopped into Dr. Newman's lab to discuss Mr. Hilty's research difficulties with him in person and to look at the data on his computer. (Id., ¶ 5). While they were discussing the problem, Dr. Newman entered the lab and joined them. (Id., ¶ 6). When Plaintiff saw Dr. Gomez, she asked Dr. Newman to ask him to leave. (Plaintiff's depo., pp. 274, 276-77). Dr. Newman told Plaintiff to not worry, Dr. Gomez was not going to hurt her, he had said he was sorry, and there was no reason to be afraid. (Id., p. 274). Dr. Gomez did not say anything to Plaintiff. (Id., p. 276). Plaintiff became angry and loudly said something to the effect of "Get the mother fucker away from me," and "How do you know he's not drunk now?" or "When is an alcoholic safe?" (Id., pp. 274-75, 277). Plaintiff then returned to the other side of the lab and finished her work. (Id., p. 278). Plaintiff did not know why Dr. Gomez was in the computer office and who had invited him into the office. (Id., p. 280).

Plaintiff did not go to anyone at U.C. to talk about the incident, but she did go to the Cincinnati police that day after she left work. (Id., pp. 280-81). The police officer with whom she spoke advised her that if Dr. Gomez was making her uncomfortable and if this had happened in the past, then she needed to file for a restraining order, which Plaintiff did. (Id., p. 283). There was a hearing on the order at which Plaintiff, Ms. Powell, and Dr. Gomez testified. (Id., pp. 283-284). At the hearing, Ms. Powell described the incident that had occurred at the restaurant in March 2003. (Id., p. 284). The judge granted the restraining order for a period of 30 to 60 days and continued the matter until the end of that time period. (Id., pp. 283-84). Plaintiff did not attend the second hearing because she had been terminated by that time. (Id., p. 284).

The day after the lab incident, Plaintiff filed her first formal complaint with the OEO. (Id., exh. 1). In the complaint, Plaintiff requested that the OEO investigate charges of assault and sexual harassment against Dr. Gomez stemming from the restaurant incident. Plaintiff stated that she had immediately reported the incident to Ms. Kaminsky and to Dr. Newman. She asserted that she had also met with Dr. Deepe on March 31, 2003, and had informed him that she wanted some type of disciplinary action taken against Dr. Gomez, to which Dr. Deepe had responded that he would talk to Dr. Gomez. Plaintiff noted in her complaint that Dr. Gomez had apologized to her on April 1, 2003, but she had not accepted his apology. Plaintiff also made the following statement in her complaint:

Mycology seminar is every Friday at 16:00. While in seminar, of the 20 or so seats to choose from, Mr. Gomez decides to sit right across from me, and he is staring at me the whole time in this lustful, leering stare, occasionally glancing away, and then staring again. He seems to try and find reasons, and/or ways to be near me.

Plaintiff also recounted in her complaint the incident from the preceding day:

Mr. Gomez is in the lab without my knowledge, sitting quietly at the computer with Jeremy Hilty, graduate student, Darryl, graduate student, and with Dr. Newman. When I saw this I asked Dr. Newman to ask him to leave, to which he replied no because they needed to use the computer to work on a paper, and that I had no reason to be afraid because he wouldn't assault me again. I explained to Dr. Newman that this situation made me feel uncomfortable, and I was afraid to be in the same room with him.

Please keep in mind that no disciplinary actions have yet been taken, but apparently it was over for everyone else. Dr. Newman asked me what more did I want because he had already said that he was sorry. I told him fine, then I would leave. I refuse to work in a hostile work environment. I left the lab and finished out the day by completing my work.

Plaintiff then stated that she believed Dr. Gomez, "the Assailant," posed "an immediate and present danger" to her. She stated that she had every reason to believe he would continue to cause physical harm or mental distress by sitting directly outside of the lab in which Plaintiff worked and talking and going out of his way for her to see him when in fact the department was big enough that she "should never have to see him if he did not want [her] to." Plaintiff concluded by stating she did not feel safe at work and she had called work to let ...


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