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Kosut v. First Energy Corp.

Court of Appeals of Ohio, Seventh District

June 28, 2013


Civil Appeal from Court of Common Pleas of Jefferson County, Ohio Case No. 10CV290 JUDGMENT: Affirmed in part

For Plaintiff-Appellant Attorney Michael A. Adams Attorney Christopher J. Wallace Attorney Raymond A. Hinerman

For Defendants-Appellees Attorney Samuel N. Lillard Attorney Anthony D. Dick

JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Mary DeGenaro



{¶0} Plaintiff-appellant, Amber Kosut, appeals from Jefferson County Common Pleas Court judgments granting summary judgment in favor of defendant-appellee, Harsco Corporation, on appellant's retaliation claim and granting summary judgment in favor of defendant-appellee, FirstEnergy Corporation, on appellant's claims for hostile work environment, sexual harassment, and disparate treatment based on sex.

{¶1} Kosut is a carpenter with Carpenter's Local Union 186. From December 30, 2009, through February 12, 2010, Kosut's job assignment was for Harsco, formerly known as Patent. Harsco was erecting and dismantling scaffolding at the W.H. Sammis Power Plant. The Sammis Plant is owned and operated by FirstEnergy. At the time, Bechtel Corporation was under contract with FirstEnergy to act as the lead engineer on a major upgrade project at the Sammis Plant.

{¶2} During her six weeks working for Harsco at the Sammis Plant, Kosut alleged numerous incidents of sexual harassment. Kosut claimed that she was subjected to looking at pornographic images in magazines, posters, and on cell phones. She claimed that male co-workers often made sexual remarks towards her. She claimed that some male co-workers inquired about her bathroom habits. She claimed that during a particular safety training meeting put on by Bechtel the instructor continuously used offensive language. And she claimed the FirstEnergy security guards frequently touched her inappropriately when she passed through the security checkpoint.

{¶3} Kosut also alleged that she was harassed by a male worker named Larry Dowdle who did not like having a female carpenter on the job. She claimed that during her time at the Sammis Plant, Dowdle hit her with a door, tried to run her off the road with his forklift, "nipped" at her legs with his forklift, and threatened her and her family's lives.

{¶4} According to Kosut, on February 12, 2010, a co-worker named Rick Scott informed her that Dowdle was making threats to find out where she lived, that Scott was scared for her life, and that Dowdle wanted to cause her harm and get her fired. Kosut stated that Scott gave her the phone number to a Harsco hotline to report the harassment. Kosut called the hotline and made what was supposed to be an anonymous complaint.

{¶5} Later that day, Kosut's employment with Harsco ended. Kosut claims she was fired due to her complaints. Harsco states she was laid off because the job was winding down.

{¶6} On May 18, 2010, Kosut filed a sexual discrimination/sexual harassment complaint against Harsco, Bechtel, FirstEnergy, Chris Baker, Larry Dowdle, John Good, Joe Stiller, and Jim Hamrock.[1]

{¶7} FirstEnergy filed a motion for summary judgment asserting, among other things, that it was not Kosut's employer and, therefore, could not be liable on Kosut's claims. Harsco also filed a motion for summary judgment asserting, among other things, that Kosut could not make a prima facie case of disparate treatment based on sex, that Harsco had legitimate, non-discriminatory reasons for Kosut's layoff, and that Kosut could not establish the elements of a retaliation claim. Kosut submitted briefs in opposition.

{¶8} The trial court considered the motions along with several depositions and affidavits.

{¶9} As to Kosut's retaliation claim against Harsco, the trial court found the following. Kosut was a Harsco employee from December 20, 2009, until February 12, 2010, when she was laid off. Kosut was hired out of the Carpenter's Union Hall along with other union members for the project at the Sammis Plant. Kosut failed to present any evidence of her retaliation claim. She failed to present evidence of any causal connection between her layoff and any protected activity.

{¶10} And as to Kosut's claims against FirstEnergy, the court made the following findings. Kosut was not an employee of FirstEnergy. FirstEnergy had no control over Kosut's wages, hiring, laying off, work assignments, or supervision. Kosut presented no evidence to create an issue of fact that she might have been a FirstEnergy employee. Kosut presented no evidence that FirstEnergy knew of the complained of conduct.

{¶11} Thus, the trial court granted partial summary judgment to Harsco on Kosut's retaliation claim and intentional infliction of emotional distress claim. And it granted summary judgment in favor of FirstEnergy and dismissed the complaint against it. Kosut subsequently dismissed her claims against Baker, Dowdle, and Good.

{¶12} Kosut filed a timely notice of appeal on April 20, 2012.

{¶13} Before proceeding to the merits, we must address a preliminary issue. Harsco asserts this court lacks jurisdiction to hear Kosut's appeal against it.

{¶14} After the trial court ruled on the summary judgment motions and prior to trial, Kosut filed notices of voluntary dismissal. She filed one notice advising that she was voluntarily dismissing her claims against Baker, Good, and Dowdle without prejudice. She filed another notice stating that she was voluntarily dismissing "any and all remaining claims against the Defendant, Harsco Corporation" without prejudice.

{¶15} Harsco now argues that by filing the voluntary dismissal, Kosut dismissed all claims against it, including the claims the trial court ruled on in summary judgment. Therefore, it asserts we are without jurisdiction to hear this appeal as to it.

{¶16} Pursuant to Civ.R. 41(A), "a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant." (Emphasis added.) Civ.R. 41(A) does not allow for a plaintiff to dismiss a portion of the claims against a defendant. Pattison v. W.W. Granger, Inc., 120 Ohio St.3d 142, 2008-Ohio-5276, 897 N.E.2d 126, ¶18. The rule applies to discrete parties, not discrete causes of action. Id.

{¶17} Pursuant to Civ.R. 54(B), an order is not appealable if "more than one claim for relief is presented in an action" and the order only enters "judgment as to one or more but fewer than all of the claims" unless the trial court expressly determines "that there is no just reason for delay." Litva v. Richmond, 172 Ohio App.3d 349, 2007-Ohio-3499, 874 N.E.2d 1243, ¶45 (7th Dist.).

{¶18} In support of its position, Harsco relies on Stohlman v. Stall, 8th Dist. No. 84353, 2004-Ohio-4763. In Stohlman, the plaintiffs filed defamation claims against six defendants. The trial court granted summary judgment to four of the defendants. Prior to trial, the plaintiffs dismissed their complaint in its entirety. They then filed an appeal as to the grant of summary judgment to three of the defendants. The Eighth District dismissed the appeal for lack of jurisdiction reasoning that the trial court had failed to include the Civ.R. 54(B) language of "no just reason for delay" in its entry granting summary judgment and the plaintiffs' dismissal of all claims against all defendants rendered the trial court's order a nullity. On the plaintiffs' motion, the trial court subsequently amended its summary judgment entry to include the Civ.R. 54(B) language. The plaintiffs once again appealed.

{¶19} But the Eighth District once again concluded it was without jurisdiction to hear the appeal. It reasoned that the trial court had no authority to enter the second summary judgment entry that included the Civ.R. 54(B) language because the entire case had already been dismissed. Id. at ¶5. The court noted that once the plaintiffs dismissed all of their claims the case was completely terminated and there was no case or controversy pending in the trial court. Id.

{¶20} This case, however, is distinguishable from Stohlman. In the present case, the trial court's judgment entry granting partial summary judgment to Harsco on Kosut's claims for retaliation and intentional infliction of emotional distress contained the Civ.R. ...

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