         [Cite as Garrison v. Nippert, 2013-Ohio-1965.]

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



STEPHANIE GARRISON,                               :       APPEAL NO. C-120384
                                                          TRIAL NO. A-1106166
        Plaintiff-Appellant,                      :
                                                            O P I N I O N.
  vs.                                             :

ALFRED K. NIPPERT, JR.,                           :

NIPPERT AND NIPPERT,                              :

  and                                             :

ENVIROSURE TECHNOLOGIES                           :
CORPORATION,

    Defendants-Appellees.                         :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 15, 2013


Croskery Law Offices and Robert F. Croskery, for Plaintiff-Appellant,

Janszen Law Firm Co. L.P.A., Freund Freeze & Arnold L.P.A., August T. Janszen
and Thomas B. Bruns, for Defendants-Appellees.



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


Per Curiam.


       {¶1}   Plaintiff-appellant Stephanie Garrison appeals the judgment of the

Hamilton County Court of Common Pleas dismissing a number of claims, including a

claim of sexual harassment under R.C. 4112.02

                   Garrison’s Employment History with Nippert

       {¶2}   According to Garrison’s complaint, she was an employee of three

distinct entities: attorney Alfred K. Nippert, Jr.; the law firm of Nippert and Nippert;

and Envirosure Technologies Corporation. Garrison alleged in her complaint that

immediately after beginning her employment, she “did not feel comfortable” in

Nippert’s presence. According to Garrison, Nippert made inappropriate comments,

stating that Garrison was “stupid” and that he would “have to find other ways for

[her] to earn [her] paycheck” while leering at her. She further alleged that Nippert

would repeatedly go to her desk for the purpose of making sexual comments, would

use offensive words to make her feel humiliated, and would call the office to make

sexual comments. Garrison alleged that, during these calls, Nippert would refer to

her in such terms as the “hot, lovely, exotic Nippert girl” or “Stephanie, the exotic

dancer.”

       {¶3}   According to the complaint, Nippert also repeatedly made comments

about one of Garrison’s co-workers and asked Garrison if she had seen other female

employees’ breasts.    Garrison allegedly reached what she characterized as her

“breaking point” when Nippert rubbed her arms and shoulders while “making

grunting and panting noises and breathing heavily” and asking if she wanted some

candy. After Garrison had attempted to get away from Nippert, he allegedly went to

Garrison’s co-worker, put his arms around her, and rubbed his face between her

breasts. Soon after this incident, Garrison gave two weeks’ notice and left Nippert’s

employ.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    Despite Garrison having reached her “breaking point,” she returned to

Nippert’s office in December 2008.      According to the complaint, Garrison’s co-

worker had “begged” her to work during the holiday season, and Garrison had

assented because she was “desperate for money.”

       {¶5}    But Garrison alleged that she “again reached her breaking point when

Nippert came to the office the second week that she was back.” On this occasion,

Nippert asked Garrison to come outside the office to get a letter. Garrison alleged

that when she went outside, Nippert “leered” at her, “demanded that she twirl

around for him, and otherwise made suggestive and improper commentary.”

According to Garrison, Nippert had then called her at her home on two occasions

after that day, as he had done in the past. The calls came between 11:00 p.m. and

1:00 a.m., with Nippert leaving “a message of heavy breathing.”             Garrison’s

complaint included causes of action for sexual harassment, assault, intentional

infliction of emotional distress, and negligence. The appellees filed a motion to

dismiss under Civ.R. 12(B)(6), and the trial court granted the motion with respect to

all of the claims.

       {¶6}    In a single assignment of error, Garrison contends that the trial court

erred in granting the motion to dismiss the sexual-harassment claim.

                          Civ.R. 12(B)(6) and R.C. 4112.02

       {¶7}    A complaint may be dismissed under Civ.R. 12(B)(6) only when it

appears beyond doubt from the complaint that the plaintiff can prove no set of facts

that would entitle her to relief. O’Brien v. Univ. Community Tenants Union, Inc., 42

Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. A court must accept all factual

allegations in the complaint as true and draw all reasonable inferences in favor of the

nonmoving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d

753 (1988). An order granting a Civ.R. 12(B)(6) motion is subject to de novo review.




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                          OHIO FIRST DISTRICT COURT OF APPEALS



Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶

5.

          {¶8}   R.C. 4112.02(A) makes it an unlawful discriminatory practice for an

employer, because of the sex of an employee, to discriminate against the employee

“with respect to hire, tenure, terms, conditions, or privileges of employment, or any

matter directly or indirectly related to employment.” Kilgore v. Ethicon Endo-

Surgery, Inc., 172 Ohio App.3d 387, 2007-Ohio-2952, 875 N.E.2d 113, ¶ 23 (1st

Dist.).

          {¶9}   To establish a claim of a hostile work environment based on sex, the

plaintiff is required to show the following:

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

          based on sex; (3) that the harassing 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 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 ¶ 24. Under the third element, the misconduct must be sufficiently egregious

as to unreasonably interfere with the plaintiff’s work performance. Id. at ¶ 26;

Brandner v. Innovex, Inc., 1st Dist. No. C-110401, 2012-Ohio-462, ¶ 16, citing

Kilgore at ¶ 25-26. The plaintiff is thus ultimately required to demonstrate that the

allegedly hostile behavior had a detrimental effect on “the quality and quantity of the

work she performed.” Kilgore at ¶ 30.

                 No Unreasonable Interference with Work Performance

          {¶10} In the case at bar, we find no error in the trial court’s dismissal of the
sexual-harassment claim. Although Garrison alleges many instances of egregious

conduct by Nippert, Garrison’s decision to return to Nippert’s employ after she had


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                        OHIO FIRST DISTRICT COURT OF APPEALS



allegedly reached her “breaking point” negated any possible inference that the

asserted misconduct had been sufficiently severe as to affect the terms, conditions, or

privileges of her employment.      Although Garrison attempts to cast her decision to

return in terms of duress due to her financial struggles, the only reasonable inference

to be made from the complaint is that she had returned voluntarily, with full

knowledge of the workplace conditions.

       {¶11} And while Garrison alleges that she had reached her “breaking point” a
second time after her return to her job, we again find no factual basis for a finding

that Nippert’s conduct had unreasonably interfered with the performance of her

duties. If anything, the misconduct alleged in Garrison’s second tenure with Nippert

was less problematic than the conduct that allegedly led to her first departure.

Under these circumstances, Garrison’s departure from Nippert’s employ must be

deemed voluntary, and she could not prove that the defendants had subjected her to

any adverse employment action.         Accordingly, the trial court’s dismissal of the

sexual-harassment claim was proper.

       {¶12} Finally, we note that Garrison has not assigned error with respect to
the remaining claims in the complaint, and we therefore deem any error as to those

claims abandoned. See App.R. 16(A); Loukinas v. Roto-Rooter Serv. Co., 167 Ohio

App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272, ¶ 9.

                                       Conclusion

       {¶13} Consequently, we overrule the assignment of error and affirm the
judgment of the trial court.

                                                                      Judgment affirmed.

CUNNINGHAM, P.J., FISCHER and GORMAN, JJ.

ROBERT H. GORMAN, retired, from the First Appellate District, sitting by assignment.

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

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