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Kerecman v. Pactiv Corp.

March 19, 2007

SUE KERECMAN, PLAINTIFF,
v.
PACTIV CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Judge Smith

Magistrate Judge Abel

OPINION AND ORDER

Plaintiff, Sue Kerecman ("Kerecman") asserts claims of hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964 and Ohio Revised Code Sections 4112.02 and 4112.99. In addition, Ms. Kerecman asserts an Ohio common law claim of intentional infliction of emotional distress. This matter is before the Court on Defendant Pactiv Corporation's ("Pactiv") Motion for Summary Judgment (Doc 25). Based on the following, Defendant's Motion for Summary Judgment is GRANTED.

I. FACTS

A. Defendant Pactiv

Pactiv's Columbus, Ohio facility employs approximately 153 employees and relies on its approximately 76 forming operators to manufacture paper plates for its customers. The facility has 23 forming lines located in a large room approximately 200 feet by 250 feet. A forming operator is assigned to each line and operates the machine during production. As an equal opportunity employer, Pactiv maintains policies prohibiting discrimination, sexual harassment and retaliation. (See Pactiv's Hourly Employee Handbook EEO Harassment Policy, p. 45 (Kerecman Depo. at Ex. 14); Pactiv's Sexual Harassment Policy (Kerecman Depo. at Ex. 6)). Kerecman received a copy of both policies. (Kerecman Depo. at 282-83, Ex. 21). Pactiv's EEO Harassment Policy states that an employee who believes he or she has been the subject of unlawful harassment should report the alleged act immediately to the Facility Manager, his or her supervisor, his or her employee relation's manager, or to the Corporate hotline. (Kerecman Depo. at Exs. 6, 14).

To ensure a safe and positive work environment for its employees, Pactiv also maintains Standards of Conduct within the workplace which employees are required to follow. Standards of Conduct No. 6 prohibits "the making of obscene or abusive remarks on Company time, Company property, or Company business." (Kerecman Depo. at Ex. 14 at 23). For safety reasons, Pactiv also requires employees to wear proper eye and ear protection while on the floor in production areas. (Kerecman Depo. at 162-63; Caniglia Decl. ¶ 6; Pactiv's Standards of Conduct No. 13, p. 24, and Plant Safety Rule No. 2, p. 11 contained in the Employee Handbook and see Kerecman Depo. at Ex. 14). Pactiv posts notices of this safety requirement in the plant. (Kerecman Depo. at 162-63).

B. Plaintiff Kerecman

Plaintiff, Sue Kerecman, is a female who currently resides in Westerville, Ohio. Plaintiff was hired by Defendant Pactiv on March 7, 1994, as a forming operator. Plaintiff Kerecman works the third shift from 12 a.m. to 8 a.m. and operates one of the forming lines which includes such duties as taking care of the machine, checking trays and packing trays into boxes.

Plaintiff Kerecman has had a history of discipline for violating work rules. From 1996-1998, Ms. Kerecman received three write ups for poor attendance: oral warnings on September 9, 1996 and July 31, 1998 and a written warning on November 23, 1998. (Kerecman Depo. at 272-73, Ex. 15). On July 30, 1998, Defendant Pactiv had a "conversation" with Ms. Kerecman for swearing at another employee. (Kerecman Depo. at 273-75, Ex. 16). On June 22, 2000, Ms. Kerecman received a step 2 "written consultation" for a safety violation that resulted in equipment damage. (Kerecman Depo. at 275-76, Ex. 17). On February 6, 2002, Ms. Kerecman received a step 2 "letter of reprimand without suspension" for throwing a package of a product at a co-worker on January 30, 2002. (Kerecman Depo. at 277, Ex. 18). Finally, on January 6, 2003, Ms. Kerecman was counseled about the importance of plant safety when she struck her knee against the hopper on two occasions. (Kerecman Depo. at 278, Ex. 19).

Ms. Kerecman testified that beginning in the fall of 2002 and continuing until January, 2003, John Watkins, a co-worker who works as a forming operator, asked her out almost every night even though she consistently told him no. (Kerecman Depo. at 92). Ms. Kerecman admits that she did not speak to anyone in management about this until after the January, 2003 cornering incident. (Kerecman Depo. at 93-95). In January, 2003, Ms. Kerecman testified that Mr. Watkins cornered her and again asked her to go out with him. (Kerecman Depo. at 63, 65). When Ms. Kerecman tried to go around him, he put is right hand on her left arm to stop her. Id. Ms. Kerecman than ran out from around him the other way and went straight into the product office. Id. Ms. Kerecman told Mike Diaz that she did not want to be put anywhere near Mr. Watkins for the rest of the night. Id. at 63. Ms. Kerecman's wishes were accommodated. Id. at 68. In addition, Ron Poe, the supervisor, came out of his office and asked Ms. Kerecman about the incident. Id. Mr. Poe then went and spoke with Mr. Watkins and reported back to Ms. Kerecman that she would be left alone. Id. Ms. Kerecman admits that Mr. Watkins did, in fact, stop asking her out and "basically stopped talking to" her after this incident. Id. at 93.

After the cornering incident in January, 2003, but sometime before April 29, 2003, Ms. Kerecman testified that Mr. Watkins would stare at her. Id. at 82. Also during this time, on one occasion, Ms. Kerecman and Mr. Watkins were working together on the same machine and she would have to hand Mr. Watkins the trays and he would put them in a plastic folder. Id. Ms. Kerecman testified that he grabbed the trays from her and slammed them into the plastic bag and this upset her. Id. at 82-83. Ms. Kerecman responded to Mr. Watkins's behavior by telling the supervisor that she wanted him moved to another line. Id. at 83-84. The supervisor immediately accommodated Ms. Kerecman's wishes and Mr. Watkins was moved. Id. at 84. Ms. Kerecman testified that after Mr. Watkins was moved, Mr. Nappier told her that Mr. Watkins had told him that he would come back and hurt Ms. Kerecman if he lost his job. Id. at 71-73. Ms. Kerecman admits she did not immediately report this alleged threat to management. Id. at 73.

C. Defendant Pactiv's Investigation

On or about April 29, 2003, a number of female employees, including Kerecman, Karen Carey, Becky Bird, DeAngela Jackson and Kuemar Parker, met with Shift Supervisor Joe Deffenbaugh at the beginning of the third shift to complain about Mr. Watkins. Each of the women had different complaints about Mr. Watkins. Ms. Kerecman complained that Mr. Watkins: (1) had repeatedly asked her out on dates after she had declined; (2) cornered her; (3) intimidated her claiming he would "hurt" her; and (4) followed another employee, Becky Bird home. (Compl. ¶ 8; Kerecman Depo. at 55, 57, 58).

Defendant Pactiv immediately began an investigation into the complaints made by the employees. Between April 29 and May 2, 2003, Toni Caniglia, Human Resources Manager, interviewed a total of 12 employees including Kerecman, Bird, Parker, Jackson, Carey, Jeff Nappier, Otis Wade, Edie Asbury, Larry King, Matthew Dalton, Mike Burden and Watkins. (Compl. ¶ 9; Caniglia Decl. ¶¶ 1, 7, Ex. 1).

1. Ms. Caniglia Meets With Kuemar Parker

On April 29, 2003, Ms. Caniglia interviewed Parker, who subsequently signed a written statement. (Caniglia Decl. ¶ 8 and. Ex. 2). Parker told Caniglia that Watkins did ask her out, but she said, no, she was married. (Compl. ¶ 9 and Ex. 2 at Def.0606). Parker added, "He's not bothering me any more." (Caniglia Decl. Ex. 2 at Def.0606). In her deposition, Kerecman admitted she never heard Watkins ask out Parker. (Kerecman Depo. at 101).

2. Caniglia Meets With DeAngela Jackson

On April 29, 2003, Ms. Caniglia interviewed Jackson, who subsequently signed a written statement. (Caniglia Decl. ¶ 9 and Ex. 3). Jackson told Caniglia that Watkins had asked her out. "[A]t first he used to ask me out a lot but I kept telling him I wasn't looking for anyone." (Caniglia Decl. Ex. 3 at Def.0601). She said no and he kept asking even after she said no. (Caniglia Decl. Ex. 3 at Def.0601). "He doesn't ask me out so much anymore, but he knows I am not interested." (Caniglia Decl. Ex. 3 at Def.0601). She further stated, "[Watkins is] mean to me because I don't want to go out. . Once he pretended like he was going to throw something at me. I think he's doing hand gestures (don't know what) behind my back and when I turn around he stops." (Caniglia Decl. Ex. 3 at Def.0602). Ms. Kerecman admitted in her deposition that she has no personal knowledge of the allegations raised by Jackson. (Kerecman Depo. at 103). Ms. Kerecman alleged in her Complaint that Watkins was "hateful" toward Jackson (Compl. ¶ 10), yet admits she has no evidence in support of her allegation. (Kerecman Depo. at 104).

3. Caniglia Meets With Karen Carey

On April 30, 2003, Caniglia interviewed Carey, who subsequently signed a written statement. (Caniglia Decl. ¶ 10 and Ex. 4 at Def.0612). Carey told Caniglia: "I've been hearing things from the girls. I haven't heard or been witness to anything in particular myself, but I think you should talk to them. They're having troubles with John [Watkins]." (Caniglia Decl. Ex. 4 at Def.0612).

4. Caniglia Meets with Kerecman

On May 1, 2003, Caniglia interviewed Ms. Kerecman, who subsequently signed a written statement. (Kerecman Depo. at 18, 19, 27, Ex. 1). Caniglia asked Ms. Kerecman about Watkins asking her out on dates. Ms. Kerecman stated that "[Watkins] kept asking me out for coffee or breakfast or to ride his motorcycle." (Kerecman Depo. at 19, 92-93, Ex. 1 at Def.0438-40). Ms. Kerecman said he continued asking even after she said no. "I told him no that I didn't date anyone from work." Id. Ms. Kerecman stated that Watkins would ask her "every night" and she kept telling him "no." Id. Ms. Kerecman said she went to Brenda Robinson, a co-worker, to ask what she should do about Watkins. (Kerecman Depo. at 19, 93-95, Ex. 1 at Def.0438-40). Ms. Kerecman stated she does not date black men. (Kerecman Depo. at 19, 93, 94, Ex. 1 at Def.0438-40). Robinson told her to tell him "no." (Caniglia Decl. ¶ 11 and Ex. 5 at Def.0745). Ms. Kerecman admitted Watkins stopped asking her out after January, 2003. (Kerecman Depo. at 62, 92-94, 142). Ms. Kerecman admitted that at the time Watkins asked her out, she did not complain to Pactiv. (Kerecman Depo. at 93, 94).

Ms. Kerecman told Caniglia that Watkins was generally leaving her alone, "except for staring at [her]." (Kerecman Depo. at 19, Ex. 1 at Def.0438-40). Ms. Kerecman reported that Watkins "stares at [her] a lot." (Kerecman Depo. at 19, 82, Ex. 1 at Def.0438-40). "He slams the trays down when he's packing." Id. "It's nerve-wracking and upsets me." Id. Ms. Kerecman added, she "told the day shift supervisor [John Fannin] to move [Watkins] because [she] was uncomfortable, so he did. John [Watkins] wasn't doing anything, I was just uncomfortable with him on my line." (Kerecman Depo. at 19, Ex. 1 at Def.0438-40; Caniglia Decl. ¶ 12). Per Ms. Kerecman's request, Pactiv immediately moved Watkins to another part of the plant floor. (Kerecman Depo. at 19, 83, 84, 86, Ex. 1 at Def.043840; Caniglia Decl. ¶ 12).

Kerecman also reported to Caniglia that Watkins had "cornered" her: One night when I relieved him for break, he cornered me. He wasn't saying anything in particular, but I felt trapped. I was scared and nervous. I got away from him and told Mike Diaz [Third Shift Coordinator for Hourly Employees] what happened. I told Mike [Diaz] not to put me there with John [Watkins]. Mike [Diaz] told Ron Poe [Third Shift Supervisor, who left the Company on February 10, 2003]. Ron talked to John [Watkins]. John [Watkins] hasn't talked to me or bothered me since then. (Kerecman Depo. at 19, 62, 63, 77, 78, Ex. 1 at Def.0438-40; Caniglia Decl. ¶ 13). Later, in October, 2003, when Caniglia met with Kerecman to discuss this incident again, Ms. Kerecman changed her version of this incident and said Watkins had put his hand on her shoulder and it made her feel uncomfortable; Ms. Kerecman did not report in May, 2003 that Watkins had put his hand on her. (Kerecman Depo. at 62, 63, 68, 69, Ex. 1 at Def.0441-42).

Ms. Kerecman also told Caniglia in the May 1, 2003 interview that Jeff Nappier had told her that Watkins had threatened her by saying he would come back and hurt her if he lost his job. (Kerecman Depo. at Ex. 1 at Def.0439). Ms. Kerecman admitted at her deposition that this alleged threat was made before her April 29, 2003 meeting with Shift Supervisor Deffenbaugh and, after that time, Watkins had not made any other threats. (Kerecman Depo. at 72, 73, Ex. 1 at Def.0439). Ms. Kerecman further admitted she did not immediately report this alleged threat to Pactiv when it was reported to her. (Kerecman Depo. at 73, Ex. 1 at Def.0439). She also did not report this threat to Deffenbaugh during their meeting on April 29, 2003. See id. Ms. Kerecman also told Caniglia that "Jeff [Nappier] told me that John [Watkins] had followed Becky Bird home." (Kerecman Depo. at 19, 88, Ex. 1 at Def.0438-40). Although Ms. Kerecman admitted in her deposition she did not know when Watkins followed Bird home, she claimed this occurred before her April 29, 2003 meeting with Shift Supervisor Deffenbaugh. (Kerecman Depo. at 88, 89).

5. Caniglia Meets with Becky Bird

On May 1, 2003, Caniglia interviewed Ms. Bird, who subsequently signed a written statement. (Caniglia Decl. ¶ 16 and Ex. 8). Bird told Caniglia that Watkins had "asked [her] out many times, and I've told him I'm not interested." (Caniglia Decl. Ex. 8 at Def.0598). "He continues to ask me things like 'do I want to go for a ride on his motorcycle,' but he says it in a way that is suggestive and he doesn't mean motorcycle. I tell him no, I'm not interested." (Caniglia Decl. Ex. 8 at Def.0598-0600). These incidents occurred before their May 1, 2003 meeting, but Bird could not specify exactly when these incidents allegedly occurred. (Caniglia Decl. Ex. 8 at Def.0598-0599).

Ms. Bird further reported to Caniglia that Watkins was once talking to Larry King and Jeff Nappier and he grabbed his crotch and said, "suck this, mother f--ker" in Bird's presence. (Caniglia Decl. Ex. 8 at Def.0598). Bird admitted that he "doesn't say it to me" and that the comment was not directed toward her. (Caniglia Decl. Ex. 8 at Def.0598). Finally, Bird told Caniglia that Ms. Kerecman told her that Watkins had followed her (Bird) home from work although Bird admits she has no personal knowledge of Watkins following her home. (Caniglia Decl. Ex. 8 at Def.0599).

6. Caniglia Meets With Jeff Nappier

On May 1, 2003, Caniglia interviewed Mr. Nappier, who subsequently signed a written statement. (Caniglia Decl. ¶ 17 and Ex. 9 at Def.0630-33). Nappier told Caniglia he had not witnessed any of the events alleged by Ms. Kerecman. (Caniglia Decl. Ex. 9 at Def.0630-31). With respect to the allegation that Watkins followed Bird home, Nappier stated that Watkins once gave him a ride home. (Caniglia Decl. Ex. 9 at Def.0630-31). Nappier told Caniglia he lives near Bird. (Caniglia Decl. Ex. 9 at Def.0630-31). When Watkins drove Nappier home, they saw Bird turn off towards her home, and Watkins made the comment, "Oh, she lives this way?" Other than that, he's [Watkins] never asked me anything about her or her house or anything." (Caniglia Decl. Ex. 9 at Def.0630-31). Nappier said they were not following Bird home. (Caniglia Decl. Ex. 9 at Def.0630-31).

Nappier also told Caniglia he has never seen Watkins make any inappropriate gestures "like grabbing his crotch or him saying inappropriate things -- swearing or such." (Caniglia Decl. Ex. 9 at Def.0630-31). Nappier further stated to Caniglia that Ms. Kerecman had confided in him that after they moved Watkins, "she has said that she doesn't have any problems with him anymore." (Caniglia Decl. Ex. 9 at Def.0630-31).

Nappier denied ever telling Ms. Kerecman that Watkins made the comment that he would come back to hurt her or that he had heard him make this comment. (Caniglia Decl. Ex. 9 at Def.0630-31). Instead, Nappier said Ms. Kerecman had asked himwhether he thought Watkins would come back to hurt her to which Nappier responded, "John [Watkins] is not that way." (Caniglia Decl. Ex. 9 at Def.0630-31).

7. Caniglia Meets with Larry King

On May 1, 2003, Caniglia interviewed Mr. King, who subsequently signed a written statement. (Caniglia Decl. ¶ 18, Ex. 10 at Def.0604-05). King stated that while Watkins and Ms. Kerecman may have had a problem, any problems "had been resolved." Id. After Watkins was moved to a different line, "things seem[] quiet." Id. King stated he had never seen "any inappropriate behavior, like gestures or language" by Watkins. Id.

8. Caniglia Meets with Otis Wade

On May 1, 2003, Mr. Wade told Caniglia he had not seen or heard anything relating to Watkins and felt Watkins was being falsely accused. (Caniglia Decl. ¶ 19, Ex. 1 at Def.0764-65). He told Caniglia that he avoids the "girls" and does not "believe" them. (Caniglia Decl. Ex. 1 at Def.0764-65).

9. Caniglia Meets With Karen Carey Again

On May 1, 2003, Caniglia met with Ms. Carey a second time. (Caniglia Decl. ¶ 20; and Ex. 4 at Def.0612-0620). Carey told Caniglia that Watkins had asked her out 4-5 times. (Caniglia Decl. Ex. 4 at Def.0612). Carey did not specify when Watkins allegedly asked her out on dates. (Caniglia Decl. ¶ 20). "I told him no, then he left me alone after 5 times of saying No!"

(Caniglia Decl. Ex. 4 at Def.0612). Carey reported that Watkins would sometimes ask Carey to go on a motorcycle ride. (Caniglia Decl. Ex. 4 at Def.0612). Ms. Carey declined. During orientation, Carey stated that Watkins asked her who the single girls were. (Caniglia Decl. Ex. 4 at Def.0613). Carey also stated that DeAngela Jackson and Kuemar Parker came to Carey and told her Watkins had asked them out on dates. (Caniglia Decl. Ex. 4 at Def.0613). Carey said she only heard rumors that Watkins had cornered Ms. Kerecman on the line one day and kept asking her out. (Caniglia Decl. Ex. 4 at Def.0613). Carey could not recall who told her this. Id.

Carey reported that she heard rumors that Watkins had grabbed his "crotch." (Caniglia Decl. Ex. 4 at Def.0613). Ms. Carey stated that Kuemar Parker and DeAngela Jackson had told her that Watkins would grab his crotch. (Caniglia Decl. Ex. 4 at Def.0613). Carey admitted that she never personally saw Watkins make any inappropriate gestures. (Caniglia Decl. Ex. 4 at Def.0614). Finally, Carey told Caniglia that someone had "keyed [her] truck," but that she did not know who had done it. (Caniglia Decl. Ex. 4 at Def.0614). Carey further admitted that sometimes she makes sexual jokes at work, but not with Watkins. (Caniglia Decl. Ex. 4 at Def.0614-15).

On May 2, 2003, Karen Carey approached Caniglia and told her she wanted to clarify the last statement she gave to Caniglia. (Caniglia Decl. ¶ 21 and Ex. 4 at Def.0615). Ms. Carey stated she does not joke around with Watkins, but only with her friends Larry King and Mike D. (last name unknown) in maintenance. (Caniglia Decl. Ex. 4 at Def.0615). Carey later told Caniglia, in October, 2003, that after Watkins was moved to a different shift on September 1, 2003, "things have been fine." (Caniglia Decl. Ex. 4 at Def.0618).

10. Caniglia Meets With Edie Asbury

On May 1, 2003, Caniglia met with Ms. Asbury. (Caniglia Decl. ¶ 22, Ex. 1 at Def.0766). Asbury stated that she did not have any problems with Watkins and she thinks girls are "stirring it up." (Caniglia Decl. Ex. 1 at Def.0766). Ms. Asbury told Caniglia she is friends with Becky Bird. (Caniglia Decl. Ex. 1 at Def.0766). Bird had confided in Asbury that she was worried because Ms. Kerecman told Bird that Watkins had followed Bird home. (Caniglia Decl. Ex. 1 at Def.0766). Bird told Asbury she was worried when Watkins asked her how many bedrooms she had at her place. (Caniglia Decl. Ex. 1 at Def.0766). In response, Asbury told Bird, "Becky, you've been talking with everyone about your new place, and we've all been asking you questions about it . . . he was just asking a question." (Caniglia Decl. Ex. 1 at Def.0766). Asbury said she has never heard Watkins use foul language or make any gestures. (Caniglia Decl. Ex. 1 at Def.0766). When Watkins used to ask her out, Asbury said no. (Caniglia Decl. Ex. 1 at Def.0766).

11. Caniglia Meets with Matthew Dalton and Mike Burden

On May 2, 2003, Caniglia interviewed Mr. Dalton. (Caniglia Decl. ¶ 23, Ex. 1 at Def.0766-67). Dalton said he had not seen Watkins make any obscene gestures or use foul or abusive language. (Caniglia Decl. Ex. 1 at Def.0766).

On May 2, 2003, Caniglia interviewed Mr. Burden, who subsequently signed a written statement. (Caniglia Decl. ¶ 24, Ex. 11 at Def.0610-11). Burden told Caniglia: "A while back I had heard some rumors, and I told John [Watkins] once that No means No. I was kind of joking with him, because I hadn't heard or seen anything." (Caniglia Decl. Ex. 11 at Def.0610). He has never seen Watkins make any obscene gestures or heard any comments. See id.

12. Caniglia Meets with John Watkins

On May 2, 2003, Caniglia met with Mr. Watkins, who subsequently signed a written statement. (Caniglia Decl. ¶ 25. Ex. 12 at Def.0634-39). Watkins admitted asking out Ms. Kerecman. (Caniglia Decl. Ex. 12 at Def.0634). After she said no, Watkins said he did not ask her again. See id. Watkins denied asking out any other employee. (Caniglia Decl. Ex. 12 at Def.0634). Watkins stated, however, that he never asked Ms. Kerecman to go for a ride on his motorcycle or to go to breakfast or coffee. (Caniglia Decl. Ex. 12 at Def.0634). Mr. Watkins said he talks to Kuemar Parker about motorcycles. (Caniglia Decl. Ex. 12 at Def.0634).

Watkins denied following Bird home from work. (Caniglia Decl. Ex. 12 at Def.0634-35). He said on one occasion he gave his co-worker, Nappier, a ride home. See id. Nappier lives off the same road as Bird. See id. They saw her turn off the road and he continued around her. See id. Watkins then asked Nappier if she lives down that way and Nappier said yes. See id. Watkins denied keying Carey's car, denied threatening anyone, denied staring at Ms. Kerecman or doing anything else that might upset her. (Caniglia Decl. Ex. 12 at Def.0635). Watkins further denied ...


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