United States District Court, S.D. Ohio, Western Division
DECISION AND ENTRY OVERRULING MOTION FOR SUMMARY
JUDGMENT OF DEFENDANT MARY SCOTT NURSING HOME, INC. (DOC.
#28); PLAINTIFF WILHELMINA COTTEN'S CLAIMS AGAINST
DEFENDANT SHALL PROCEED TO TRIAL
H. RICE, UNITED STATES DISTRICT JUDGE.
Wilhelmina Cotten ("Plaintiff' or
"Cotten"), a female former employee of Defendant
Mary Scott Nursing Home, Inc. ("Defendant" or
MSNH"), alleges that Defendant unlawfully terminated her
in retaliation for her complaining about being sexually
harassed by one of Defendant's residents and
Defendant's not taking steps to prevent harassment.
Plaintiff claims that Defendant's unlawful retaliation
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-5 et seq. (Claim One), and Ohio Rev.
Code § 4112.01 et seq. (Claim Two). Doc. #1,
¶¶ 28-41, PAGEID #5-7. Defendant has filed a Motion
for Summary Judgment on both claims. Doc. #28. For the
reasons set forth below, Defendant's Motion is OVERRULED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
was hired by Defendant as an at-will employee as a State
Tested Nursing Assistant ("STNA") in March 2015.
Doc. #27, PAGEID #105, 169-70. Plaintiff later became a
Social Service Assistant ("SSA"), a job which she
performed well, and "MSNH never provided Ms. Cotton any
type of write-up or documented verbal counseling prior to her
termination." Doc. #35, PAGEID #479 (citing Doc. #27,
PAGEID #126-27; Doc. #35-1, ¶ 27, PAGEID #502). As an
SSA, Plaintiff was supervised by Samantha Clark
("Clark"), and also continued to be supervised by
Saundra Roundtree ("Roundtree"), her former
supervisor, since "she could still possibly perform STNA
duties[.]" Doc. #28, PAGEID #220 (citing Doc. #28-2,
¶ 4, PAGEID #246; Doc. #28-3, ¶ 5, PAGEID #251).
Plaintiff's duties as an SSA was to supervise residents
of MSNH during their legally-guaranteed smoking breaks, which
occurred at regular intervals throughout the day. Dondi Myers
("Myers"), Defendant's Unit Manager, was
responsible for creating the schedule for when certain
employees are to take certain residents on their smoke
breaks. Doc. #28, PAGEID #220-21 (citing Doc. #28-1,
¶¶ 6-7, PAGEID #241). On July 17, 2015, Plaintiff,
without another staff member accompanying her, took several
residents outside for a smoke break, during which she was
sexually harassed by a Jerald Simon ("Simon"), one
of Defendant's mentally disabled residents. Doc. #27,
PAGEID #143; Doc. #28-1, ¶¶ 10, 13, PAGEID #242,
243. Plaintiff reported the harassment to Myers, who laughed
and stated, "well, he's human, he's a man."
Doc. #35, PAGID #479 (alterations removed) (quoting Doc. #27,
PAGEID #147). Nonetheless, Myers ordered Plaintiff not to
interact with Simon. Doc. #28-1, ¶ 10, PAGEID #242.
Plaintiff called Steve Dunson ("Dunson"),
MSNH's administrator at the time, to report Simon's
harassment and what she felt were Myers's inadequate
responses. Dunson informed Plaintiff that, if Simon harassed
her again, he would be removed from the facility. Doc. #35,
PAGEID #480 (citing Doc. #35-1, ¶ 6, PAGEID
#499). Defendant subsequently altered Simon's
Care Plan so that Plaintiff would never be responsible for
taking Simon out for smoke breaks. Doc. #35-1, ¶7 PAGEID
#499. Further, at Plaintiff's suggestion, a policy was
implemented that required two staff members to accompany
residents on every smoke break. Doc. #27, PAGEID #137-38.
However, Plaintiff claims that Myers took no steps to
effectuate the two-employee policy, and, consequently,
Plaintiff took residents out for smoke breaks without being
accompanied by another staff member. Doc. #28-1, ¶ 17,
PAGEID #244; Doc. #35-1, ¶ 8, PAGEID #499.
about August 25, 2015, Plaintiff, without another staff
member accompanying her, took several MSNH residents,
including Simon, outside for a smoke break, during which she
was again sexually harassed by Simon. Plaintiff reported the
harassment via telephone to Zach Collins
("Collins"), MSNH's administrator at the time.
Doc. #27, PAGEID #157-58. Collins allegedly instructed
Plaintiff not to allow Simon to participate in smoke breaks
until his Care Plan could again be changed. Doc. #35, PAGEID
#481-82 (citing Doc. #35-1, ¶ 15, PAGEID #500). On or
about August 27, 2015, Plaintiff refused to allow Simon to
participate in a smoke break, and was verbally criticized by
Myers for doing so, although Myers did not subject Plaintiff
to Defendant's progressive discipline policy. Plaintiff
informed Myers that Collins had ordered her to prevent Simon
from taking such smoke breaks, and that Myers should discuss
any problems she had as to that policy with him. Doc. #35-1,
¶ 16, PAGEID #501.
afternoon, Plaintiff met with Roundtree, Clark, Myers and
Patricia Cunningham ("Cunningham"), Defendant's
Human Resources Director. Doc. #35-1, ¶ 18, PAGEID #501.
During that meeting, Roundtree expressed her displeasure that
Plaintiff had gone outside the supposed "chain of
command" by calling Collins directly, and intimated that
Collins was unhappy, too. Doc. #35, PAGEID #483 (citing Doc.
#34, PAGEID #457; Doc. #35-1, ¶ 18, PAGEID #501).
Plaintiff suggested that the five of them meet with Collins,
since she disagreed with Roundtree and Myers's assertion
that Defendant had taken adequate steps to protect her after
Simon's harassment. Roundtree instead sent Plaintiff home
for the day. Id. (citing Doc. #34, PAGEID #460; Doc.
#35-1, ¶ 20, PAGEID #501).
next morning, Plaintiff met with Collins one-on-one and
recounted the sexual harassment. Collins indicated that MSNH
would change Simon's Care Plan again that day. Doc. #35,
PAGEID #483 (citing Doc. #35-1, ¶ 15, PAGEID #501; Doc.
36, PAGEID #539-40). After her meeting with Collins, Clark
met with Plaintiff and issued her a written reprimand for
insubordination, which Plaintiff refused to sign.
Id., PAGEID #484 (citing Doc. #35-1, ¶ 24,
PAGEID #502). After Roundtree and Tiffany Bennett
("Bennett"), MSNH's Director of Nursing, joined
the meeting, Plaintiff was again sent home for the day,
allegedly for raising her voice and using profanities.
Id. Plaintiff strongly denied raising her
voice or using profanities during that meeting or at any
other time. Nonetheless, she was terminated, at the direction
of Collins, over the telephone by Roundtree and Clark on or
about August 28, 2015. Neither Roundtree nor Clark provided a
reason for termination, id. (citing Doc. #34, PAGEID
#424; Doc. #35-1, ¶¶ 17, 26, PAGEID#501, 502).
judgment shall be granted "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Summary judgment must be entered
"against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). The moving party always bears the initial
responsibility of informing the court of the basis for its
motion, and identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of
material fact. Id. at 323; see also Boretti v.
Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).
the moving party has met its initial burden, the nonmoving
party must present evidence that creates a genuine issue of
material fact making it necessary to resolve the difference
at trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the
burden of production has so shifted, the party opposing
summary judgment cannot rest on its pleadings or merely
reassert its previous allegations, it is not sufficient to
"simply show that there is some metaphysical doubt as to
the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). Rule 56 "requires the nonmoving
party to go beyond the pleadings, " and present some
type of evidentiary material in support of its position.
Celotex, 477 U.S. at 324. "The plaintiff must
present more than a scintilla of evidence in support of his
position; the evidence must be such that a jury could
reasonably find for the plaintiff." Michigan Prot.
& Advocacy Sen/., Inc. v. Babin, 18 F.3d 337, 341
(6th Cir. 1994).
judgment will not lie if the dispute about a material fact is
'genuine, ' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party." Anderson, 477 U.S. at 248. In
determining whether a genuine dispute of material fact
exists, a court must assume as true the evidence of the
nonmoving party and draw all reasonable inferences in favor
of that party. Id. at 255. If the parties present
conflicting evidence, a court may not decide which evidence
to believe. Credibility determinations must be left to the
fact-finder. 10A Wright, Miller & Kane, Federal
Practice and Procedure Civil 3d, 2726 (1998).
determining whether a genuine dispute of material fact
exists, a court need only consider the materials cited by the
parties. Fed.R.Civ.P. 56(c)(3). "A district court is
not.. . obligated to wade through and search the entire
record for some specific facts that might support the
nonmoving party's claim." InterRoyal Corp. v.
Sponseller,889 F.2d 108, 111 (6th Cir. 1989). If it so