Court of Appeals of Ohio, Seventh District, Belmont
Appeal from the Court of Common Pleas, of Belmont County,
Ohio Case No. 13 CV 166.
Plaintiff-Appellee Attorney Patrick Cassidy The First State
Defendant-Appellant, JJS Developments, Ltd., Attorney Paul
Flowers Attorney Timothy Cogan.
Defendants, Electronics Recycling Services, Inc. and Dan
Brown, Attorney Bradley Shafer.
JUDGES: Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol
Defendant-Appellant, JJS Developments, Ltd., appeals the
judgment of the trial court entering a jury verdict against
it and in favor of Plaintiff-Appellee, Kristen Wittenbrook,
on her sexual harassment/hostile work environment and
retaliatory discharge claims. JJS argues the trial
court's jury interrogatories as to joint employer
liability were erroneous and that the trial court erred by
overruling JJS's motions for directed verdict on the
issue of whether it was liable as a joint employer. Finally,
JJS asserts that the trial court committed plain error by
failing to sua sponte address allegedly improper comments
made by Wittenbrook's counsel during closing arguments.
For the following reasons, JJS's assignments of error are
meritless and the judgment of the trial court is affirmed.
and Procedural History
Wittenbrook began working in marketing at Defendant
Electronic Recycling Services Inc. (ERS Ohio) in May 2012.
Several months later, Wittenbrook claimed that a coworker
sexually harassed her and intimidated her. She reported the
incident; however, she claimed that management-specifically,
senior vice president of operations at ERS Ohio, Defendant
Daniel Brown-failed to investigate and deal with the
allegations, instead mocking her by displaying sexual
harassment posters and portraying her as a drama queen to
other employees. Brown then disciplined Wittenbrook for
including a non-employee consultant on an email referencing
the harassment, and ultimately terminated her from her
position at the company.
This appeal does not center on the facts of the underlying
sexual harassment and retaliatory discharge allegations, but
rather on ERS Ohio's corporate relationship to
ERS Ohio was an Ohio corporation doing business in Bellaire,
Ohio. Specifically, it was a recycling facility that would
accept recyclable materials, store them and then resell them.
Wittenbrook initially worked in a marketing position, then as
an assistant to the general manager, and finally as part of
the R2 compliance group. ERS Ohio was pursuing its R2
certification, which demonstrates a level of
environmentally-responsible recycling; it ensures that the
facility is disposing of materials properly. An R2
certification can make the recycling company more marketable
to companies who do business with it.
The owners of ERS Ohio were Sam Kazemeini, a company called
Molam, and Brown. Kazemeini was president of ERS Ohio even
though he worked out of Toronto exclusively. Brown was senior
vice president for operations, Jim Johnston was the general
manager or head of operations, and Zak Bobek, served as
acting general manager for ERS Ohio when Johnston was working
in the Chicago facility and Brown was out of town.
JJS was located in Scarborough, Ontario, Canada, which is a
suburb of Toronto. Kazemeini had an ownership interest in JJS
and was also its president. JJS had a number of other
facilities like ERS Ohio that were either operating, or in
development, in the United States, such as Chicago and
Indianapolis, and throughout the world, such as Mexico, China
and the Bahamas.
Wittenbrook entered into a non-competition, non-solicitation
and confidentiality agreement prior to commencing her
employment at ERS Ohio. The non-compete agreement, dated May
10, 2012, states that it is entered into between
"Electronics Recycling Services Ltd., with a head office
at 2450 Lawrence Avenue East, Unit #3-15, Scarborough,
Ontario, M1P 2R7 (The Employer')" and "Kristin
Lee Wittenbrook (The Employee')" The non-compete
agreement provides that it "will be construed in
accordance with and governed by the laws of the Province of
Ontario and the federal laws of Canada applicable
therein." While at least one defense witness attempted
to distance Electronics Recycling Services Ltd. from JJS, it
is undisputed that JJS did business under a number of names,
including "ERS International." A defense witness
referred to "ERS International, " under which JJS
operated, "as our main office."
According to Dilan Patel, who was the chief financial officer
of JJS, ERS Ohio received nearly all of its funding for
start-up and operational costs from JJS. Paula Pronesti, who
was the global financial controller for JJS, prepared profit
and loss statements for ERS Ohio. She explained that
"being part of the global team, we were able to access
all of the other locations." She said she assisted Patel
with managing the budgets for various locations.
Brown testified he was in contact with JJS daily on a variety
of matters, "[everything from current market prices for
metals, to what the procedures were, to employee issues from
a perspective of payroll amounts and things like that."
Brown was also in contact with JJS regarding compliance
issues. Patel testified that when ERS Ohio had major contract
opportunities, JJS would first review them.
Alfea Principe, global director of compliance for JJS,
testified she was in charge of managing ERS Ohio, among other
JJS locations, from a compliance perspective. Principe took
on additional managerial functions with respect to ERS Ohio.
For example, JJS and ERS employees all used the same email
domain name: ers-international.com, and Brown asked
Principe to make email address and password changes for three
ERS Ohio employees. Further, when Brown barred Wittenbrook
from returning to her building to work, Principe ordered that
Brown permit her back inside. Wittenbrook testified that,
thereafter, she was placed under Principe's direct
supervision. That testimony is supported by an email where
Wittenbrook identifies Principe as her supervisor and in her
reply Principe fails to dispute this.
Wittenbrook testified that Principe also discussed promotion
opportunities with her; specifically, that Wittenbrook could
move on to manage the R2 certification process for other JJS
facilities in the United States and abroad since she had been
part of the first team to lead a JJS facility through a
successful R2 certification process.
With regard to JJS's involvement in dealing with the
sexual harassment allegations, JJS was apprised of
Wittenbrook's complaint according to Dilan Patel, the CFO
of JJS. Patel worked in the Toronto location of JJS, which he
called the global operations center. In addition, Brown was
concerned that the sexual harassment allegations would bring
negative scrutiny by JJS upon ERS Ohio. Principe testified
that the decision to fire Wittenbrook was made by Brown and
Kazemeini, who, as mentioned, had an ownership interest in
both ERS Ohio and JJS.
Additional evidence of the interrelatedness of the two
companies can be seen by JJS's response to a fire that
destroyed part of the ERS Ohio facility. The check for the
insurance proceeds paid for the damages from the fire was
made out to JJS. When the facility later resumed some
business operations after the fire, JJS sent someone to
manage that undertaking and report back to JJS. Ultimately,
JJS closed many of its facilities outside of Canada,
including ERS Ohio.
In May 2013, Wittenbrook filed the instant suit against ERS
Ohio and Daniel Brown. She later added JJS as a defendant in
July 2015. The amended complaint alleged that JJS and ERS
Ohio were Wittenbrook's joint employers and raised sexual
harassment, retaliatory discharge and tortious interference
with employment claims.
JJS filed a summary judgment motion arguing there was no
evidence that its own employees and agents had engaged in any
of the harassment or abuse that Wittenbrook had claimed to
suffer at ERS Ohio. Wittenbrook countered that JJS and ERS
Ohio were so integrated that JJS should be liable under a
joint employer theory. In its reply brief, JJS objected to
Wittenbrook's allegation that it was a joint employer,
claiming it was not properly pled in the amended complaint.
Alternatively, JJS sought a continuance to allow for
discovery and retention of expert witnesses on that issue.
JJS's motion for summary judgment was denied immediately
The matter proceeded to a jury trial on April 12, 2016. At
the close of Wittenbrook's case, JJS moved for a directed
verdict of no liability on the grounds of insufficient
evidence that it was a joint employer with ERS Ohio.
Wittenbrook countered she had made out a pri facie case
and the trial court overruled ...