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Wittenbrook v. Electronics Recycling Services, Inc.

Court of Appeals of Ohio, Seventh District, Belmont

January 8, 2018

KRISTEN WITTENBROOK PLAINTIFF-APPELLEE
v.
ELECTRONICS RECYCLING SERVICES, INC., et al. DEFENDANTS-APPELLANT

         Civil Appeal from the Court of Common Pleas, of Belmont County, Ohio Case No. 13 CV 166.

          For Plaintiff-Appellee Attorney Patrick Cassidy The First State Capital.

          For Defendant-Appellant, JJS Developments, Ltd., Attorney Paul Flowers Attorney Timothy Cogan.

          For Defendants, Electronics Recycling Services, Inc. and Dan Brown, Attorney Bradley Shafer.

          JUDGES: Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb.

          OPINION

          DeGENARO, J.

         {¶1} 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.

         Facts and Procedural History

         {¶2} 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.

         {¶3} 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 Defendant-Appellant JJS.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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."

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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.

         {¶15} 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 before trial.

         {¶16} 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 ...


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