[Cite as Brandner v. Innovex, Inc., 2012-Ohio-462.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



TINA M. BRANDNER,                                     :   APPEAL NO. C-110401
                                                          TRIAL NO. A-1001132
          Plaintiff-Appellant,                        :

        vs.                                           :

INNOVEX, INC.,                                        :      O P I N I O N.

SIRION THERAPEUTICS, INC.,                            :

        and                                           :

VINCENT CAVALIERE,                                    :

          Defendants-Appellees.                       :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 10, 2012



James M. Moore, for Plaintiff-Appellant,

Denlinger Rosenthal & Greenberg Co., L.P.A., Mark E. Lutz, Semanoff Ormsby
Greenberg & Torchia, L.L.C., Michael J. Torchia and Alfredo Sergio, for Defendant-
Appellee Innovex, Inc.,

Dinsmore & Shohl, L.L.P., Michael W. Hawkins and Trevor E. Gillette, for
Defendant-Appellee Sirion Therapeutics, Inc.,

Mann & Mann, L.L.C., David S. Mann and Michael T. Mann, for Defendant-
Appellee Vincent Cavaliere.


Please note: This case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}   Plaintiff-appellant Tina M. Brandner appeals the judgment of the

Hamilton County Court of Common Pleas granting summary judgment to

defendants-appellees Innovex, Inc., (now known as Quintiles Commercial U.S., Inc.),

Sirion Therapeutics, Inc., and Vincent Cavaliere (collectively “Defendants”), on

Brandner’s claims for sexual harassment and retaliation. Because we determine that

no genuine issues of material fact exist with regard to Brandner’s claims and that the

Defendants are entitled to judgment as a matter of law, we affirm.

                                   Factual Background

       {¶2}   Brandner had begun working for Innovex, Inc., (“Innovex”), in

September 2008, as a pharmaceutical sales representative for Durezol, a product of

Sirion Therapeutics, Inc., (“Sirion”), and her sales territory had included cities within

Ohio, Kentucky, and Indiana. Within the first few months of her employment,

Brandner had ranked first among sales representatives for prescription volume, a

ranking she had maintained largely throughout her employment, and she had

received a bonus for her performance in the last quarter of 2008.

       {¶3}   Brandner had reported to Cavaliere, a district manager for Innovex.

As a sales representative, Brandner had had infrequent in-person contact with

Cavaliere, except for district meetings and on select “field visits” with doctors.

Nevertheless, Brandner had had multiple interactions with Cavaliere from the start

of her employment until late March or early April 2009, which she alleged had been

harassing. Brandner testified in her deposition that Cavaliere had touched her on

four or five different occasions while the two had driven together on field visits.

Brandner described the touching as a “mini massage” on her shoulder or the middle

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part of her thigh. When Brandner had told Cavaliere not to touch her, he had

stopped.

       {¶4}   Brandner also testified that Cavaliere had made allegedly harassing

comments.     While on a field visit, Cavaliere had remarked to Brandner that a

woman’s legs looked good in a skirt, and that Brandner’s legs would probably look

just as nice. Cavaliere also had told Brandner on at least one occasion that she

dressed too conservatively and that she might get more business if she dressed less

conservatively. Cavaliere had told Brandner that her looks would not hurt her when

going on sales calls.     On two separate occasions, Cavaliere had commented on

another sales representative’s sexual orientation; additionally, he had made a remark

about another sales representative having a double mastectomy, which he had said

would negatively affect the representative’s sales. Brandner testified that Cavaliere

had remarked once that he would like to go to the lake home that Brandner had

purchased with her boyfriend. Cavaliere had stated that he could go there some time

with his wife, or when his wife was away, he could go there by himself if Brandner

were going to be there.

       {¶5}   In February 2009, Christine Marcello, who had worked in human

resources for Innovex, had interviewed Brandner and other sales representatives

after a complaint had been made against Cavaliere by another sales representative.

Marcello had concluded, at the end of her investigation, that Cavaliere had an

unprofessional management style at times, although he had not “attacked” anyone

individually. As a result, Cavaliere had been disciplined and had been required to

take three management-training sessions.




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       {¶6}   Brandner had contacted Marcello on her own initiative in March 2009

after Cavaliere had given incorrect information to doctors regarding a company

program and had cursed in front of one of the doctors, and Brandner had seen

Cavaliere drive past her home after work hours. Brandner testified that she had

become scared of Cavaliere after she had seen him drive past her house, and that she

had felt “very uncomfortable” with him. Brandner had made the same complaints to

Travis Pitre, a national manager for Innovex and Cavaliere’s supervisor, in late

March or early April. Brandner testified that she also had told Marcello about the

incidents where Cavaliere had touched her in the car, where he had commented on

her legs, and where he had commented on the other sales representative’s

mastectomy and sexual orientation.      Marcello’s contemporaneous notes had not

mentioned these incidents, and Brandner testified that she could not recall whether

she had told Marcello about these incidents in their conversations in February or

March.

       {¶7}   After early April, Brandner’s contact with Cavaliere had been limited.

Brandner also testified that her job had not been impaired by the limited interaction,

and Brandner had not made any more complaints to Innovex employees regarding

Cavaliere. Cavaliere had been issued a “final” warning letter from Innovex regarding

his management style and had been instructed to take more training courses. In July

2009, Cavaliere had accompanied Brandner on a field visit, but Cavaliere had driven

separately from Brandner.

       {¶8}   Meanwhile, in April 2009, Innovex had changed its bonus structure.

Bonuses were no longer based upon prescription volume, but instead were based

upon the number of physicians contacted within the entire territory for all Sirion

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products, and the frequency with which those physicians were contacted. Michael

Radice, an Innovex top manager, testified that Brandner had not been covering

enough of her territory, specifically Indianapolis.

       {¶9}     According to Marcello’s testimony, in May 2009, and unbeknownst to

Brandner at the time, Cavaliere had recommended Brandner’s termination because

she had not been calling on physicians as expected.        Brandner’s employment,

however, continued, and as of June 8, 2009, Brandner had not reached the targeted

threshold for contacting physicians. As a result, Brandner had been placed on a

Performance Management Plan (“PMP”) beginning in July, which meant that

Brandner would not have been eligible for bonuses. Brandner was one of several

sales representatives that had been placed on a PMP at that time.

       {¶10} Brandner testified that she had been doing an excellent job and that

computer problems that Cavaliere had failed to address had contributed to her lower

numbers.      She also testified that Cavaliere had given her inconsistent guidance

because he had told her to concentrate on her accounts in Cincinnati because of the

high prescription volume obtained from those accounts, but then he had criticized

her in an e-mail for not focusing more on other parts of her territory. Brandner also

testified that Cavaliere had told her that he did not agree with placing her on the

PMP.

       {¶11} Brandner’s PMP had continued into August 2009, at which time

Cavaliere’s employer had transitioned from Innovex to Sirion. On September 1,

2009, Brandner’s employment also had transitioned to Sirion. A week later, during a

conference call on September 8, 2009, Brandner had been told by Cavaliere and

Sirion human-resources employee Lillie Espinosa that her employment had been

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terminated. Espinosa and Cavaliere maintained that Brandner’s employment had

been terminated because she had violated a company policy and a Federal Drug

Administration regulation requiring a sales representative leaving a pharmaceutical

sample with a physician to actually witness the physician sign for the sample. An

investigation that had been initiated by Cavaliere had uncovered that Brandner had

submitted a form with a physician’s signature, which did not match that physician’s

previous signatures. Brandner essentially conceded that the physician’s signature

was not authentic, but Brandner testified that Cavaliere had told her she did not

actually have to witness a signature if the physician was busy. In her affidavit,

Espinosa stated that any employee who submitted an unauthentic physician’s

signature would be terminated from Sirion.

       {¶12} Brandner filed suit in the Hamilton County Court of Common Pleas

against the Defendants, alleging claims for hostile work environment, retaliation,

gender discrimination in pay, breach of the Ohio Whistleblower Act, breach of public

policy, negligent retention and supervision, and intentional infliction of emotional

distress. The Defendants separately filed motions for summary judgment on all of

Brandner’s claims. Brandner also filed a motion for partial summary judgment. The

trial court granted Defendants’ motions and denied Brandner’s motion. Brandner

now appeals the trial court’s decision with regard to her hostile-work-environment

and retaliation claims only.

                               Summary-Judgment Standard

       {¶13} When reviewing a summary-judgment ruling, we apply a de novo

standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243

(2000). Under Civ.R. 56(C), summary judgment is appropriate when no genuine

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issues of material fact remain, the moving party is entitled to judgment as a matter of

law, and it appears from the evidence that reasonable minds can come to but one

conclusion, and with the evidence construed most strongly in favor of the nonmoving

party, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio

St.2d 317, 327, 364 N.E.2d 267 (1977).

                                First Assignment of Error

       {¶14} Brandner contends in her first assignment of error that the trial court

erred in granting Defendants’ motions for summary judgment on her claim for

hostile work environment. R.C. 4112.02(A) makes it an unlawful discriminatory

practice for any employer, because of the sex of any person, “to discriminate against

that person with respect to hire, tenure, terms, conditions, or privileges of

employment, or any matter directly or indirectly related to employment.” Case law

interpreting Title VII of the Civil Rights Act of 1964 also applies to cases brought

under R.C. Chapter 4112. Hampel v. Food Ingredients Specialties, Inc., 89 Ohio

St.3d 169, 175, 729 N.E.2d 726 (2000). To prove discrimination on the basis of sex

under R.C. 4112.02(A), a plaintiff can proceed under either of two of theories: (1)

quid pro quo, meaning that the harassment is directly linked to the gain or loss of a

tangible economic benefit; or (2) hostile work environment, meaning that the

harassment has the purpose or effect of creating an abusive working environment.

Id. at 175-176.

       {¶15} Because Brandner has alleged a hostile-work-environment claim, she

must show the following:

                  (1) that the harassment was unwelcome, (2) that the

                  harassment was based on sex, (3) that the harassing

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              conduct was sufficiently severe or pervasive to affect the

              “terms, conditions, or privileges of employment, or any

              matter directly or indirectly related to employment,” and

              (4) that either (a) the harassment was committed by a

              supervisor, or (b) the employer, through its agents or

              supervisory personnel, knew or should have known of

              the harassment and failed to take immediate and

              appropriate corrective action.

Id. at 176-177, quoting R.C. 4112.02(A).

       {¶16} As to the third prong, severe or pervasive conduct, the harassing

conduct must be more than merely offensive; the conduct must be severe and

pervasive enough that the victim subjectively regards the work environment as

abusive, and that a reasonable person would also find the environment abusive.

Kilgore v. Ethicon Endo-Surgery, Inc., 172 Ohio App.3d 387, 2007-Ohio-2952, 875

N.E.2d 113, ¶ 24 (1st Dist.), citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67,

106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). When determining whether the conduct is

actionable, the court must examine the totality of the circumstances, including (1)

the frequency of the conduct, (2) the severity of the conduct, (3) the threatening or

humiliating nature of the conduct, and (4) whether the conduct unreasonably

interferes with the plaintiff’s work performance. Kilgore at ¶ 25-26, citing Harris v.

Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The

plaintiff must show that the conduct made it more difficult to perform the job.

Bucher v. Sibcy Cline, Inc., 137 Ohio App.3d 230, 245, 738 N.E.2d 435 (1st

Dist.2000).

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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17} Assuming that Cavaliere’s actions toward Brandner were based upon

Brandner’s sex, although not all of Cavaliere’s actions were evidently made with a

gender-based animus, we cannot, as a matter of law, determine that Cavaliere’s

boorish actions amount to severe or pervasive conduct that altered the terms and

conditions of Brandner’s employment.          Cavaliere’s unwelcome conduct toward

Brandner cannot be characterized as frequent.        Brandner’s position as a sales

representative had required little in-person contact with Cavaliere, and thus the

incidents of which Brandner complains had occurred over a period of several months

from the beginning of Brandner’s employment in September 2008 to, at the latest,

early April 2009.

       {¶18} The most severe conduct by Cavaliere had occurred when Cavaliere

had touched Brandner’s leg or shoulder in the car multiple times, continuing until

Brandner had asked Cavaliere to stop. The other comments Cavaliere had made, for

example, the comment about Brandner’s legs looking nice, the comment about

Cavaliere going to Brandner’s lakehouse if she were going to be there, and dressing

less conservatively, although possibly harassing conduct, did not reach the same level

of severity as the touching.

       {¶19} Moreover, Cavaliere’s conduct did not unreasonably interfere with

Brandner’s work performance such that Brandner’s job became more difficult to

perform. Although Brandner testified that she had become scared of Cavaliere after

she had seen him drive past her house, and that she had felt “very uncomfortable”

with him, Brandner also testified that she had had very limited direct contact with

Cavaliere after these incidents, and specifically testified that her job had not been




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impaired by the limited interaction. Brandner testified that she had performed well

throughout her employment, even when she had been placed on the PMP.

       {¶20} Additionally, with regard to Sirion, the alleged acts of sexual

harassment all occurred prior to Brandner’s employment at Sirion. As Sirion notes,

in order to succeed on a hostile-work-environment claim, a plaintiff must be an

employee at the time of the harassment. Hoyt v. Nationwide Mut. Ins. Co., 10th

Dist. No. 04AP-941, 2005-Ohio-6367, ¶ 71, citing Kinnison v. Advance Stores Co.,

Inc., 5th Dist. No. 02CA73, 2003-Ohio-3387, ¶ 16-17. The undisputed evidence

shows that the allegedly harassing conduct occurred prior to Brandner’s employment

with Sirion.

       {¶21} Therefore, after reviewing the evidence in the light most favorable to

Brandner, we determine that she failed to establish a hostile-work-environment

claim against Defendants.       Accordingly, summary judgment in favor of the

Defendants was appropriate on Brandner’s hostile-work-environment claim, and we

overrule Brandner’s first assignment of error.

                             Second Assignment of Error

       {¶22} Brandner contends, in her second assignment of error, that the trial

court erred in granting Defendants’ motions for summary judgment on her

retaliation claim. R.C. 4112.02(I) makes it an unlawful employment practice “for any

person to discriminate against any other person because that person has opposed

any unlawful discriminatory practice or because that person has made a charge,

testified, assisted, or participated in any manner in any investigation, proceeding, or

hearing under sections 4112.01 to 4112.07 of the Revised Code.”




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       {¶23} In order for Brandner to establish a prima facie case of retaliation

under R.C. 4112.02(I), she must prove that (1) she engaged in a protected activity, (2)

her employer knew of her participation in the protected activity, (3) she suffered an

adverse employment action, and (4) there was a causal relationship between the

protected activity and the adverse action. DuVall v. Time Warner Entertainment

Co., 1st Dist. No. C-980515 (June 25, 1999). Once a prima facie case has been

established, the burden then shifts then to the employer to demonstrate a legitimate,

non-discriminatory reason for engaging in the adverse action. Knepper v. Ohio State

Univ., 10th Dist. No. 10AP-1155, 2011-Ohio-6054, ¶ 25. The burden then shifts back

to the plaintiff to prove that the employer’s reason is a mere pretext for unlawful

retaliation. Id. The employer’s reason is pretextual if the reason is shown to be false

and the discrimination is the actual reason. Id.

       {¶24} When determining whether a causal relationship exists between the

protected activity and the adverse action, direct evidence of a causal connection or

knowledge, together with temporal proximity, can create an inference of causation.

Nguyen v. Cleveland, 229 F.3d 559, 566 (6th Cir.2000). But, “[w]here some time

elapses between the protected activity and the subsequent adverse employment

action, the employee must produce other evidence of retaliatory conduct, namely,

evidence of additional discrimination, to establish causation.” Meyers v. Goodrich

Corp., 8th Dist. No. 95996, 2011-Ohio-3261, ¶ 29. Evidence that the employer

treated the plaintiff differently than similarly-situated employees is also relevant in

this analysis. Id. Moreover, “[t]he plaintiff cannot prevail if it appears from the

evidence that the employer would have made the same decision regardless of the




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plaintiff’s participation in the protected activity.” Neal v. Hamilton Cty., 87 Ohio

App.3d 670, 678, 622 N.E.2d 1130 (1st Dist.1993).

       {¶25} With respect to defendants Cavaliere and Innovex, assuming that

Brandner’s placement on the PMP constituted an adverse employment action,

Brandner cannot establish a causal connection between her complaints to Innovex

employees and her placement on the PMP. Because months had elapsed between the

complaints and the PMP, Brandner must point to some other evidence of

discrimination.    Brandner argues that Cavaliere had had very limited direct

communication with Brandner after the complaints, that Cavaliere had refused to

acknowledge her computer problems, which affected her sales numbers, that he had

recommended Brandner’s termination, and that he had given her inconsistent

directives. The evidence shows, however, that Cavaliere and Innovex would have

placed Brandner on the PMP regardless of her complaints, and that Brandner had

not been treated differently than other PMP-imposed sales representatives when she

too had been placed on the PMP. Brandner, as well as other employees, had been

placed on PMP as a result of failing to meet uniform, targeted goals from Sirion, and

an Innovex top manager testified that Brandner had not been covering enough of her

territory, specifically Indianapolis.

       {¶26} With regard to Brandner’s termination from Sirion, even if we assume

that Brandner established a prima facie case of discrimination, Sirion and Cavaliere

provided a legitimate, non-discriminatory reason for Brandner’s termination, which

Brandner failed to establish was pretextual.        Sirion and Cavaliere assert that

Brandner had been terminated as direct a result of her failure to comply with the

company’s specific policy and a well-known FDA regulation, which undeniably

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required a pharmaceutical sales representative to witness a physician’s signature

when leaving a sample with that physician.              Brandner conceded during her

deposition that she had not complied with the policy and regulation, but she also

contends that Cavaliere had told her she did not actually have to witness a

physician’s signature if a physician were busy. Even when construing the evidence in

the light most favorable to Brandner, Brandner cannot refute Sirion employee

Espinosa’s averment that any employee who submitted an unauthentic signature

would face termination from Sirion. Therefore, Brandner has failed to establish that

the reason given for termination from Sirion was a pretext for discrimination.

         {¶27} After reviewing the evidence in the light most favorable to Brandner,

we determine that Brandner failed to demonstrate that Defendants would not have

placed her on the PMP and would not have terminated her but for her participation

in protected activity. Therefore, the trial court properly granted summary judgment

on Brandner’s retaliation claim, and we overrule Brandner’s second assignment of

error.

         {¶28} The judgment of the trial court is affirmed.

                                                                       Judgment affirmed.

HILDEBRANDT, P.J., and DINKELACKER, J., concur.


Please note:
         The court has recorded its own entry on the date of the release of this opinion.




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