[Cite as Clinton v. Faurecia Exhaust Sys., Inc., 2012-Ohio-4618.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    MIAMI COUNTY

DARRELL T. CLINTON                               :
                                                 :     Appellate Case No. 2012-CA-1
        Plaintiff-Appellant                      :
                                                 :     Trial Court Case No. 10-CV-232
v.                                               :
                                                 :
FAURECIA EXHAUST SYSTEMS,                        :      (Civil Appeal from
INC., et. al.                                    :     ((Common Pleas Court)
                                                 :
        Defendant-Appellees                      :
                                                 :
                                              ...........

                                              OPINION

                             Rendered on the 5th day of October, 2012.

                                              ...........

FRANK M. PAYSON, Atty. Reg. #0055165, The Law Offices of Frank M. Payson, P.C., 120
West Second Street, Suite 400, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

KATHLEEN M. ANDERSON, Atty. Reg. #0074422, and JASON T. CLAGG, Atty. Reg.
#0002257, Barnes & Thornburg LLP, 600 One Summit Square, Fort Wayne, Indiana 46802
      Attorneys for Defendant-Appellees


                                             .............

FAIN, J.

        {¶ 1}      Plaintiff-appellant Darrell Clinton appeals from a summary judgment
                                                                                             2


rendered in favor of defendant-appellee Faurecia Exhaust Systems, Inc. Clinton contends that

the trial court erred in excluding two items of evidence: an errata sheet to Clinton’s deposition

and parts of an affidavit Clinton filed in opposition to Faurecia’s summary judgment motion.

Clinton further contends that the trial court erred in failing to consider evidence supporting

Clinton’s hostile work environment racial harassment claim, in applying incorrect summary

judgment standards, and by granting summary judgment on claims not properly addressed by

Faurecia.

       {¶ 2}    Assuming for the sake of argument that the trial court erred in excluding the

errata sheet and in failing to consider whether Clinton’s affidavit contradicted or supplemented

his deposition testimony, neither error was prejudicial. Even if the substituted and added

testimony is construed in Clinton’s favor, Clinton failed to provide evidence indicating that

summary judgment should not be granted. We also conclude that the trial court applied

proper summary judgment standards.          Accordingly, the judgment of the trial court is

Affirmed.



                          I. Facts and the Course of Proceedings

       {¶ 3}    The facts, construed most favorably to Clinton, are as follows. In 2007,

Darrell Clinton began working as a temporary employee at Faurecia. Clinton had been

assigned to Faurecia by Patrick Staffing, a temporary staffing agency, and had previously been

placed at various work sites.

       {¶ 4}    Clinton was assigned to be a General Operator, a job that involved lifting and

carrying up to 50 pounds, pushing and pulling loaded hand trucks, and standing most of the
                                                                                           3


shift. The job also involved bending and twisting, with some reaching required. During his

shift, Clinton had to maneuver pipes weighing twenty to twenty-five pounds. He had to get

the pipe and load it up high, about a foot above shoulder level.

       {¶ 5}    On his first day of work, Clinton received orientation in a conference room at

Faurecia. On that day, Clinton saw an item that he later realized was a noose, but he could

not tell exactly what it was at the time. The next day, when Clinton reported to work, he had

a plain view of the noose, which was right across from his work station. The noose was

located on a pole in a maintenance cage. Clinton interpreted the noose as a threat. When he

complained to a “gap leader,” Eric Hensley, about the noose, Hensley said, “It’s not mine.

Do you see a white cone on my head?” Clinton deposition, p. 35, attached to the Faurecia

Motion for Summary Judgment.

       {¶ 6}    According to affidavits submitted by Faurecia, gap leaders are not supervisors;

they are hourly employees who assist in the assignment of duties and help workers. Faurecia

also submitted evidence indicating that Hensley had no authority to discipline, hire, promote,

or hire other employees.

       {¶ 7}    Clinton testified that he was exposed to racial comments from white

employees after he began work. The majority of comments appear to have come from James,

another gap leader, and two welders who worked in the back.         Between the time Clinton

began work and when he complained to Human Resources, James made racial references on

occasion. For example, during lunch breaks, James told jokes freely, using the “N” word.

Clinton also heard the two welders use the “N” word, but did not talk with them directly. At

some point, when Clinton was taking a restroom break, Hensley told Clinton to “get his black
                                                                                             4


ass” back to his bender (work station).

       {¶ 8}    After the noose had remained in place for two weeks, Clinton took a picture of

it. Clinton stated in his deposition that he did not tell anyone at Faurecia or Patrick Staffing

that he had taken a photograph. He later stated in an affidavit that he had told Cordell Holly,

another African-American employee, about the picture. Clinton also complained about the

noose and racial comments to Jeri Oliver, the Faurecia Human Resources Manager. After he

complained, Oliver went over to the maintenance cage and took down the noose. Oliver

stated that the noose was nothing racial, because “they” did not think that way at Faurecia.

Upon investigation, Faurecia determined that the noose, reported for the first time shortly after

Halloween, was not race-related, but was part of a Halloween display put together by an

hourly employee. (The noose remained well after Halloween.)

       {¶ 9}    After the noose was removed, Clinton overheard a comment to the effect that

“I don’t know why ni***rs like to take things personal. It’s just a rope. There was nothing

going to happen.” Clinton deposition, pp. 71-72. Clinton indicated during his deposition

that this comment was made by a person who worked in the back, and who was neither a

supervisor nor manager. Clinton reported the comment to a supervisor.

       {¶ 10}    After the noose was removed, James and Hensley continued to make

occasional “little black jokes.”    Id. at 73.    At his deposition, Clinton identified three

comments that were made during this period – one of which involved James saying something

unspecified that he would like to do to black people; a second comment that was not included

in the deposition excerpts attached to Faurecia’s motion; and a third comment made by

Hensley, concerning whether black people eat fried chicken on weekends or whether they like
                                                                                                                                       5


steaks. Id. at 73-76.1

         {¶ 11}          Subsequently, on December 20, 2007, Clinton was either injured at work

after being hit in the chest with an eight-inch pipe, or simply reported chest pains that were

unconnected to an injury.2 Clinton was taken to the emergency room, where he was given

pain medication and nitroglycerin pills. Clinton received a statement from the doctor with

work restrictions, and took the statement back to Faurecia that evening. Clinton gave the

statement to an individual named Matt, who was a third-shift supervisor. Matt told Clinton

that he would not be working the rest of the evening due to his injury, so Clinton went home.

In his affidavit opposing summary judgment, Clinton also stated that Matt had said there was

nothing for Clinton to worry about, that he would not lose his job because of the accident.

         {¶ 12} The form that Clinton returned to Faurecia indicated that Clinton could return

to work with the following restrictions: no lifting of any weight, no pushing or pulling, and no

reaching above shoulder level. The following day, on December 21, 2007, Clinton was told

by Patrick Staffing that he would not be needed any more at Faurecia.

         {¶ 13} Faurecia’s Human Resources Manager, Jeri Oliver, retired in mid-December

2007, and her position was assumed by John Plenzler. According to Plenzler, Faurecia’s

standard practice was to end the temporary assignments of workers who had medical

            1
               Clinton’s deposition was not filed with the trial court; only selected excerpts were submitted with Faurecia’s motion for
 summary judgment. The trial court noted that it would consider the deposition even though it had not been filed in accordance with Civ.
 R. 56(C), because neither side had objected.
            2
                  There is a conflict in this regard between Clinton’s deposition and affidavit testimony, which claim injury due to the pipe, and
 the documents attached to Clinton’s deposition, which indicate that he simply complained of pain in his chest and arm, and stated that he
 had the pain previously. This conflict is immaterial for purposes of summary judgment, because there is no claim that the injury was the
 result of racial discrimination.
                                                                                          6


restrictions preventing them from safely performing the essential elements of their positions.

Plenzler also stated that Faurecia did not hold positions open for temporary workers with less

than one year service if they had medical restrictions preventing them from performing their

jobs.

        {¶ 14} Faurecia also presented evidence from Beth Brandenberry, a Human

Resources Generalist employed at Faurecia.         Brandenberry identified the health care

provider’s note regarding Clinton that Faurecia had received on December 21, 2007. Given

these work restrictions, Clinton was not able to hold his temporary work assignment with

Faurecia.     Medical paperwork that Clinton turned in after seeing a health care provider

indicated that he had medical restrictions that were inconsistent with the safe performance of

his duties.    Brandenberry stated that assignments of temporary workers through Patrick

Staffing would end if the workers had restrictions from a health care provider preventing them

from performing their duties. Consequently, Clinton’s temporary work was ended in the

normal course due to work restrictions. Brandenberry also indicated that when Clinton’s

work assignment ended, she was unaware that he had made any complaint of harassment.

She was aware of a complaint about a noose or rope, but believed that the incident had been

reported by a different employee, Cordell Holly.          After investigation, the company

determined that the rope, reported for the first time shortly after Halloween, was not

race-related, but had been placed there as part of a Halloween display put together by a

Faurecia hourly employee.

        {¶ 15} Clinton did not make an attempt to have his work restrictions removed after

being terminated. He subsequently filed suit against Faurecia and Patrick Staffing in March
                                                                                           7


2010.    Clinton’s complaint contained eight counts, including claims based on: race

discrimination in violation of R.C. 4112.02; negligent retention of an employee; failure to

properly supervise; negligence; retaliation; infliction of emotional distress, respondeat

superior/ratification; and entitlement to punitive damages.

        {¶ 16}   Discovery and other trial-related dates were set, and Clinton’s deposition was

taken in March 2011. Faurecia then filed a motion for summary judgment in August 2011,

attaching excerpts from Clinton’s deposition, which had been transcribed.         Clinton had

apparently not signed the deposition within thirty days after it was taken, and the court

reporter attached a sheet to the deposition indicating that the deposition had not been read,

signed, or examined within thirty days.

        {¶ 17} Subsequently, in mid-September 2011, Clinton reviewed the deposition and

changed certain answers. For example, in contrast to his prior testimony, he now contended

that the individuals who had made the racially-charged statements were supervisors. As a

basis for the change, Clinton alleged that he had been confused by the questions. Clinton also

incorporated the errata sheet into his affidavit opposing summary judgment, to explain

answers that were inconsistent with his deposition testimony.

        {¶ 18} In responding to Faurecia’s summary judgment motion, Clinton included his

own affidavit and the affidavit of Billy Satterwhite, a former Faurecia employee who was

terminated in 2001, for allegedly testing positive for drugs. Satterwhite stated that he had

been employed at Faurecia from 1996 to 2001, and that before he was fired, he and other

African-American workers were subjected to racial harassment and racial baiting by white

workers. Satterwhite stated that the harassment consisted of the following items: (1) his
                                                                                             8


coffee had been spiked so he would test positive for drugs in a urine test; (2) the legs were cut

off his chair so he would fall when trying to sit down; (3) a female worker was paid to throw a

pie in his face; (4) Ku Klux Klan pamphlets were passed around and were left on cars in the

parking lot; (5) a white worker had a hangman’s noose on the rear-view mirror of his truck;

and (6) a clay penis and testicles were left on his desk.    Satterwhite expressed the opinion

that Faurecia had a racial discrimination problem existing as of the present time that it had not

corrected, although he did not provide any details indicating his source of information or why

he said this.

        {¶ 19} Faurecia filed a motion to strike Satterwhite’s affidavit, because it had not

been provided in response to discovery requests, nor had a claim of attorney-work product

been timely asserted. Faurecia also asked the trial court to strike the deposition errata sheet

because it was untimely and did not set forth adequate reasons for the contradictions of prior

testimony. Finally, Faurecia requested that the court disregard parts of Clinton’s affidavit,

which contradicted his prior deposition testimony.

        {¶ 20} The trial court overruled the motion to strike with regard to Satterwhite’s

affidavit, concluding that Faurecia had not taken action to contest the failure to disclose the

affidavit, even though Faurecia knew of its existence well before the discovery deadline had

passed. The court sustained the motion to strike the errata sheet, based on Clinton’s failure to

offer sufficient reasons for the changes in his testimony. In addition, the court sustained the

motion to strike the parts of Clinton’s affidavit that contradicted his prior testimony, because

the affidavit made no attempt to explain why the testimony had changed, other than

incorporating the errata sheet, which the court had already found insufficient.
                                                                                          9


       {¶ 21}    In addition to changing various deposition answers, Clinton’s affidavit also

stated that he became offended and afraid for his life after discovering the hangman’s noose.

Clinton further stated in his affidavit that he was offended and scared by the comment from

his “manager/supervisor” regarding whether black people like fried chicken or steak. Clinton

also stated that his injury occurred when he was distracted by other workers and was hit by a

pipe. Clinton did not say that anyone at Faurecia hit him with a pipe; he claimed that he was

hit by the pipe because he was distracted, looking over his shoulder to make sure he would not

be attacked.

       {¶ 22}    After considering the motion for summary judgment and Clinton’s response,

the trial court considered each of Clinton’s claims, and concluded that summary judgment

should be rendered in favor of Faurecia, based on the undisputed facts. Clinton appeals from

the judgment rendered in Faurecia’s favor.



     II. Assuming that the Trial Court Erred in Excluding Clinton’s Errata Sheet,

                                 the Error Was Harmless

       {¶ 23} Clinton’s First Assignment of Error is as follows:

                THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

       PLAINTIFF BY EXCLUDING FROM EVIDENCE PLAINTIFF’S TESTIMONY

       THAT HE HAD READ AND CORRECTED HIS DEPOSITION.

       {¶ 24} Under this assignment of error, Clinton contends that the trial court erred in

failing to consider the changes in the deposition testimony, because courts are required to

consider any changes in form or substance of deposition testimony, even if the change is not
                                                                                                10


supported by convincing explanations.

       {¶ 25} Civ R. 30 (E) provides that:

                When the testimony is fully transcribed, the deposition shall be submitted to

       the witness for examination and shall be read to or by the witness, unless examination

       and reading are waived by the witness and by the parties. Any changes in form or

       substance that the witness desires to make shall be entered upon the deposition by the

       officer with a statement of the reasons given by the witness for making them. The

       deposition shall then be signed by the witness, unless the parties by stipulation waive

       the signing or the witness is ill, cannot be found, or refuses to sign. The witness shall

       have thirty days from submission of the deposition to the witness to review and sign

       the deposition. * * * If the deposition is not signed by the witness during the period

       prescribed in this division, the officer shall sign it and state on the record the fact of the

       waiver or of the illness or absence of the witness or the fact of the refusal to sign

       together with the reason, if any, given therefor; and the deposition may then be used as

       fully as though signed, unless on a motion to suppress the court holds that the reasons

       given for the refusal to sign require rejection of the deposition in whole or in part.

       {¶ 26}     “[A] trial court's ruling on the use of the deposition of a witness is reviewed

under an abuse-of-discretion standard.” Bishop v. Ohio Bur. of Workers' Comp., 146 Ohio

App.3d 772, 2001-Ohio-4274, 768 N.E.2d 684, ¶ 53 (10th Dist.). An abuse of discretion

means that the trial court must have acted “arbitrarily, unreasonably or unconscionably.”

AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio

St.3d 157, 161, 553 N.E.2d 597 (1990).
                                                                                            11


       {¶ 27}    In the case before us, the trial court sustained the motion to strike the errata

sheet, based on Clinton’s failure to offer sufficient reasons for the changes in his testimony.

Assuming for purposes of argument that the court erred in excluding the errata sheet, any error

would not be grounds for reversal unless the error were prejudicial.

       {¶ 28}    Clinton contends that issues of fact would be presented if the trial court had

considered the errata sheets, but fails to state what issues of fact would be presented. For

reasons that will be apparent in our later discussion, we conclude that even if the trial court

had erred in excluding the errata sheets, the evidence in the record does not create genuine

issues of material fact precluding summary judgment. Accordingly, any alleged error would

have been harmless and does not provide a basis for reversal.

       {¶ 29} The First Assignment of Error is overruled.



   III. Assuming that the Trial Court Erred in Striking Parts of Clinton’s Affidavit,

                                   the Error Was Harmless

       {¶ 30} Clinton’s Second Assignment of Error is as follows:

                THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

       PLAINTIFF BY EXCLUDING FROM EVIDENCE PLAINTIFF’S TESTIMONY IN

       THE FORM OF HIS SUMMARY JUDGMENT AFFIDAVIT.

       {¶ 31} Under this assignment of error, Clinton contends that the trial court erred in

striking the parts of Clinton’s affidavit that contradicted his deposition. The court concluded

that the parts of Clinton’s affidavit that contradicted his deposition testimony should be struck

because Clinton failed to explain why his testimony had changed. Although the court noted
                                                                                          12


that Clinton had supplied explanations in his errata sheet, which was incorporated into his

deposition, the court rejected these reasons because it had already found the reasons

insufficient for purposes of the errata sheet.     Clinton argues that the court should have

considered whether the testimony supplemented deposition testimony rather than contradicting

it, and also should have evaluated whether the reasons were adequate.

       {¶ 32}    In Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, the

Supreme Court of Ohio stated that:

                “Ordinarily, under [Civ.R.] 56(C), when an affidavit is inconsistent with

       affiant's prior deposition testimony as to material facts and the affidavit neither

       suggests affiant was confused at the deposition nor offers a reason for the

       contradictions in her prior testimony, the affidavit does not create a genuine issue of

       fact which would preclude summary judgment.” We hold that an affidavit of a party

       opposing summary judgment that contradicts former deposition testimony of that party

       may not, without sufficient explanation, create a genuine issue of material fact to

       defeat a motion for summary judgment. (Citation omitted.) Id. at ¶ 28.

       {¶ 33} After making these remarks, the Supreme Court of Ohio held that trial courts

must first consider if affidavits contradict, or merely supplement, earlier sworn testimony.

Further, the contradictory affidavit must sufficiently explain the contradiction before it can

create a genuine issue of material fact. Id. at ¶ 29. Because the appellate court in Byrd had

not considered if the affidavit was sham, the Supreme Court reversed and remanded the case

for consideration of that point. Id. at ¶ 30-31.

       {¶ 34} In the case before us, the trial court did not consider Clinton’s explanation for
                                                                                           13


the contradiction.   In Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237, 934

N.E.2d 913, the Supreme Court of Ohio stressed that determining whether an affidavit

contradicts a deposition “without a sufficient explanation for the alleged contradiction is a

factual determination that is properly made by the trier of fact.” Id. at ¶ 40. The court,

therefore, remanded the matter to the trial court because the court had not expounded on its

reasoning for granting the motion for summary judgment and had not ruled on a motion to

strike the affidavit. The appellate court had also declined to apply the Byrd analysis to the

affidavit, which was from an expert retained by one of the parties. Id. Under Byrd and

Pettiford, we would normally reverse the trial court and remand the case, unless the content of

the affidavit, construed in Clinton’s favor, fails to create a genuine issue of material fact.

However, even if we assume that the trial court erred in failing to consider the reasons for the

changed testimony, we conclude that Clinton failed to raise genuine issues of material fact

with regard to his claims. As a result, any error would have been harmless.

       {¶ 35} Clinton’s Second Assignment of Error is overruled.



                 IV. The Trial Court Did Not Err in Failing to Consider

                      Clinton’s Claim of a Hostile Work Environment.

       {¶ 36} Clinton’s Third Assignment of Error is as follows:

       THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

PLAINTIFF IN FAILING TO CONSIDER ANY OF PLAINTIFF’S EVIDENCE

SUPPORTING HIS HOSTILE WORK ENVIRONMENT RACIAL HARASSMENT CLAIM.

{¶ 37} Under this assignment of error, Clinton contends that the trial court erred by failing to
                                                                                                    14


consider a claim of hostile work environment racial harassment. Clinton acknowledges that the

claim was not included as a separate count, but argues that racial harassment was fairly raised in the

complaint. In response, Faurecia maintains that the matter was not properly raised. Faurecia further

argues that even if racial harassment had been raised, summary judgment would have been warranted

on this ground.

       {¶ 38}     The issue of racial harassment was addressed by both parties in the context of

summary judgment, and Clinton did mention racial harassment and “race-baiting” a number of times

in the complaint. He did not set this claim out as a separate count, and the trial court did not mention

it when rendering summary judgment. Instead, the trial court’s analysis was confined to the eight

counts specifically designated as such in the complaint.

       {¶ 39}     We conclude that the complaint sufficiently raised a hostile work environment claim.

 Compare Brown v. Dover Corp., 1st Dist. Hamilton No. C-060123, 2007-Ohio-2128 (noting that it

was unclear under plaintiff’s complaint whether her R.C. 4112.02(A) cause of action “was based on

disparate treatment * * * or a hostile work environment, * * * but the evidence presented could have

arguably implicated either theory.      The denial of benefits and increased scrutiny suggested a

disparate-treatment theory, but the distribution of racially offensive pictures and the noose supported a

hostile-work-environment theory of racial harassment.”) Id. at ¶ 14. (Footnotes omitted.)

                {¶ 40} In the case before us, Clinton presented a claim for racial discrimination under

       R.C. 4112.02(A) in Count I of the Complaint, and alleged racial harassment throughout the

       complaint. The evidence, as in Brown, could have implicated either this theory or one of

       disparate treatment.      Clinton also argued hostile work environment in responding to

       summary judgment. Accordingly, the trial court erred in failing to consider this issue. The
                                                                                                15


       failure is prejudicial, however, only if the court erred in rendering summary judgment against

       Clinton.

              {¶ 41}   “We review summary judgment decisions de novo, which means that we

       apply the same standards as the trial court.” GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d

       127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.) “A trial court may grant a moving

       party summary judgment pursuant to Civ. R. 56 if there are no genuine issues of material fact

       remaining to be litigated, the moving party is entitled to judgment as a matter of law, and

       reasonable minds can come to only one conclusion, and that conclusion is adverse to the

       nonmoving party, who is entitled to have the evidence construed most strongly in his favor.”

       (Citation omitted.) Smith v. Five Rivers MetroParks, 134 Ohio App.3d 754, 760, 732 N.E.2d

       422 (2d Dist. 1999).

              Under the Revised Code, a plaintiff alleging a hostile work environment must establish

       that (1) the employee was a member of a protected class, (2) the employee was subject to

       unwelcome harassment, (3) the harassment complained of was based on race, (4) the

       harassment had the purpose or effect of unreasonably interfering with the employee's work

       performance or creating an intimidating, hostile, or offensive work environment, and (5)

       respondeat superior liability existed. Brown, 2007-Ohio-2128, ¶ 38, citing Delaney v. Skyline

       Lodge, Inc., 95 Ohio App.3d 264, 642 N.E.2d 395 (1st Dist. 1994), and Long v. Ford Motor

       Co., 193 Fed.Appx. 497 (6th Cir. 2006).

       {¶ 42} The United States Supreme Court has indicated that discrimination occurs when “the

workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ * * * that is

‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an
                                                                                                   16


abusive working environment’ * * * .” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct.

367, 126 L.Ed.2d 295 (1993).     However, “[c]onduct that is not severe or pervasive enough to create

an objectively hostile or abusive work environment – an environment that a reasonable person would

find hostile or abusive – is beyond Title VII's purview.” Id.

               [W]hether an environment is “hostile” or “abusive” can be determined only by looking

       at all the circumstances. These may include the frequency of the discriminatory conduct; its

       severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

       whether it unreasonably interferes with an employee's work performance. The effect on the

       employee's psychological well-being is, of course, relevant to determining whether the

       plaintiff actually found the environment abusive. But while psychological harm, like any

       other relevant factor, may be taken into account, no single factor is required. 510 U.S. at 23.

       {¶ 43} Discriminatory comments are, without doubt, offensive and inappropriate in the

workplace. Nonetheless, even if we construe the facts in Clinton’s affidavit and deposition in his

favor, there is no evidence that the harassment was either severe or pervasive.

               {¶ 44}   In his deposition, Clinton mentioned a few people who made racist jokes or

       comments for about two weeks after Clinton began working at Faurecia. However, there is

       no evidence that the individuals who made the alleged remarks were supervisors, that their

       alleged actions were committed within the scope of their agency from Faurecia, or that the

       remarks were physically threatening.

               {¶ 45} In this regard, we note that Clinton’s affidavit attempted to change his

       deposition testimony, which indicated that the individuals making remarks were not

       supervisors. Clinton stated in his affidavit that the individuals making remarks were, in fact,
                                                                                            17


mangers and supervisors. His attempt to change his testimony was not supported by any

explanation, other than the notation in his errata sheets that he was “confused” by the question

in his deposition. However, even if we accept as true Clinton’s belief that these persons were

supervisors, the undisputed facts indicate that they were not, in fact, persons who were

supervisors or had authority in any way to speak for Faurecia.

       {¶ 46} The individuals identified by Clinton were actually not supervisors, according

to the affidavits filed by human resource officials of Faurecia. For example, an individual

identified as Eric Hensley, who is alleged to have told Clinton to “get his black ass” back to

his bender, was not a supervisor and had no authority to discipline other employees.

       {¶ 47}    In order to establish a claim under the doctrine of respondeat superior, it must

be demonstrated that a principal-agent relationship existed, and that tortious conduct was

committed by the agent while in the scope of his agency. Hanson v. Kynast , 24 Ohio St.3d

171, 173, 494 N.E.2d 1091 (1986). Clinton failed to offer any evidence that the individuals

who made the offending remarks were Faurecia’s agents or were acting within the scope of

their agency.   Instead, the undisputed facts indicate that these individuals, in making

offensive remarks, were acting on their own, not on behalf of the company. Consequently,

there is no respondeat superior liability on Faurecia’s part, and no liability for the alleged

workplace harassment.

       {¶ 48} In Hidy Motors, Inc. v. Sheaffer, 183 Ohio App.3d 316, 2009-Ohio-3763, 916

N.E.2d 1122 (2d Dist.), we considered a hostile work environment claim in an age

discrimination context. The employee left his job for another position, allegedly because of

various offensive remarks that the general manager of Hidy Motors had made about his age.
                                                                                           18


Id. at ¶ 23-31. Although we believed that the employee was facing an “uphill battle,” we

concluded that summary judgment should not have been rendered on the constructive

discharge claim. Id. at ¶ 31. In contrast to the case before us, however, the individual

involved in the alleged harassment in Hidy Motors was the general manager of the company.



       {¶ 49}    Moreover, even if the individuals had been supervisors, Clinton did not

suffer an adverse employment action due to the alleged harassment, because his employment

ended, not because of discrimination on the part of Faurecia, but because he could not

physically perform his job.     In this regard, the undisputed testimony was that Clinton

provided Faurecia with a medical note prohibiting him from physically performing the job to

which he had been assigned. The undisputed evidence also indicates that assignments of

temporary workers at Faurecia end if the workers have work restrictions from a health care

provider that prevent the workers from performing their duties. The undisputed evidence

further indicates that Faurecia has a policy of not holding positions open for temporary

workers with less than one year of service if the workers have medical restrictions that prevent

them from performing their duties. Thus, there is simply no evidence that Clinton’s discharge

was related to a hostile work environment.

       {¶ 50}    As an additional matter, when the alleged harassment regarding the noose

was brought to the attention of Faurecia’s Human Resources department, the noose was

promptly removed. Thus, when Faurecia was notified of an issue, it took action to remedy

the matter.

       {¶ 51} Clinton did present an affidavit from a former employee, Billy Satterwhite,
                                                                                                    19


       who maintained that discrimination existed at Faurecia prior to the time Satterwhite was

       terminated in 2001. This evidence is too remote in time to provide support for Clinton’s

       claims. Satterwhite was terminated in 2001, many years before Clinton’s employment, and

       there is no indication that any of the employees who allegedly harassed Satterwhite were still

       employed at Faurecia in 2007. We note that no attempt was made to identify any of these

       employees or to connect them with current alleged discriminatory behavior.

                {¶ 52}   Accordingly, even if the trial court erred in failing to consider the issue of a

       hostile work environment claim, no substantial prejudice occurred, because Clinton failed to

       set forth evidence raising genuine issues of material fact regarding this claim.

                {¶ 53} Clinton’s Third Assignment of Error is overruled.



                  V. The Trial Court Did Not Err in Failing to Apply a “Mixed-Motive”

                                        Standard to Clinton’s Claims

                {¶ 54} Clinton’s Fourth Assignment of Error is as follows:

                THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF

       PLAINTIFF BY UTILIZING THE INCORRECT SUMMARY JUDGMENT STANDARD IN

       EVALUATING PLAINTIFF’S EVIDENCE AND CONSEQUENTLY IMPROPERLY

       GRANTING SUMMARY JUDGMENT TO DEFENDANT.

       {¶ 55}    Under this assignment of error, Clinton contends that the trial court should have

applied the standard used in “mixed-motive” cases, in which a plaintiff need only show that a

protected characteristic like race played a role, “no matter how minute,” in an employment decision.

Clinton Appellate Brief, p. 19. As support for this contention, Clinton relies on White v. Baxter
                                                                                                   20


Healthcare Corp., 533 F.3d 381 (6th Cir. 2008).

       {¶ 56}     In White, the Sixth Circuit Court of Appeals clarified its standard for analyzing

“mixed-motive” cases, which involve an alternate method of proving an unlawful employment action.

 This method was first adopted in the Civil Rights Act of 1991. Id. at 396-397. In 1991, Congress

passed 42 U.S.C. 2000e-2(m) as part of the Civil Rights Act, for the purpose of addressing a prior

decision of the United States Supreme Court, which had allowed employers to avoid Title VII liability

by demonstrating that they would have made the same employment decisions even if they had taken

protected characteristics into account. 538 F.3d at 396 (referring to Price Waterhouse v. Hopkins,

490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) and 42 U.S.C. 2000e-2(m), which states that

“an unlawful employment practice is established when the complaining party demonstrates that race,

color, religion, sex, or national origin was a motivating factor for any employment practice, even

though other factors also motivated the practice.”)

                {¶ 57} The Sixth Circuit noted in White that federal courts use various standards to

       analyze mixed motive claims.         The Sixth Circuit then adopted its own standard for

       mixed-motive cases, which rejects use of the McDonnell-Douglas/Burdine burden-shifting

       framework. Id. at 400, referring to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

       S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Comm. Affairs v. Burdine, 450 U.S.

       248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Thus, the Sixth Circuit held that:

                       [T[o survive a defendant's motion for summary judgment, a Title VII plaintiff

                asserting a mixed-motive claim need only produce evidence sufficient to convince a

                jury that: (1) the defendant took an adverse employment action against the plaintiff;

                and (2) “race, color, religion, sex, or national origin was a motivating factor” for the
                                                                                          21


       defendant's adverse employment action. 42 U.S.C. § 2000e-2(m) (emphasis added).

       See Wright, 455 F.3d at 716 (Moore, J., concurring) (“[A]n employee raising a

       mixed-motive claim can defeat an employer's motion for summary judgment by

       presenting evidence-either direct or circumstantial-to ‘demonstrate’ that a protected

       characteristic ‘was a motivating factor for an employment practice, even though other

       factors also motivated the practice.’ ” * * *) This burden of producing some evidence

       in support of a mixed-motive claim is not onerous and should preclude sending the

       case to the jury only where the record is devoid of evidence that could reasonably be

       construed to support the plaintiff's claim. White, 533 F.3d at 400.

       {¶ 58} Ohio’s anti-discrimination statutes do not contain a provision analogous to 42

U.S.C. 2000e-2(m), and the few Ohio courts that have considered mixed-motive claims differ

in their approach. Compare Veal v. Upreach, L.L.C., 10th Dist. Franklin No. 11AP–192,

2011-Ohio-5406, ¶ 31 (noting that “* * * it is less than settled whether mixed-motive claims

are viable in the context of R.C. 4112.02(A) * * *,” and refusing to address the claim, because

plaintiff failed to present evidence establishing an adverse employment action under this

theory) with Varner v. Goodyear Tire & Rubber Co., 9th Dist. Summit No. 21901,

2004-Ohio-4946, ¶ 23 (applying “mixed-motive” framework without analysis, and rejecting

the claim because the plaintiff failed to present evidence contradicting her employer’s

evidence regarding the reason for termination).

       {¶ 59} ) We need not address this point, however, because Clinton failed to present

any evidence about a “mixed-motive” for his discharge. Faruecia did not cause Clinton’s

injury; it simply responded to a situation that Clinton created by becoming injured and being
                                                                                          22


unable to perform his duties. Furthermore, there is no evidence that Faurecia did anything

other than follow its normal procedures following injury to a temporary worker.

       {¶ 60} Clinton also mentions the retaliation claim in this regard, apparently under the

theory that Faurecia retaliated against him because he brought racial complaints to the

attention of the Human Resource Department. Again, however, there is no evidence of either

retaliation or wrongful discharge.

                In order to establish a prima facie case of discriminatory treatment under R.C.

       4112.02(A), a plaintiff must prove that (1) he is a member of a protected class, (2) he

       suffered an adverse employment action, (3) he was qualified for the position he held,

       and (4) he was either replaced by someone outside the protected class or was treated

       less favorably than a similarly situated employee not in the protected class. Holbrook

       v. LexisNexis, 169 Ohio App.3d 345, 2006-Ohio-5762, 862 N.E.2d 892, ¶ 23 (2d

       Dist.). (Citations omitted.)

       {¶ 61}    Clinton is a member of a protected class, and did suffer an adverse

employment action, in that he was discharged. Clinton was qualified for the position, or at

least he testified that he had no disciplinary issues or other problems while at Faurecia.

Clinton failed to present any evidence, however, indicating that he was treated less favorably

than workers outside the protected class. In other words, Clinton failed to present any

evidence indicating that other temporary workers outside the protected class were retained if

they were medically unable to perform their jobs. This type of information should have been

available in discovery.

       {¶ 62} Second, regarding retaliation:
                                                                                         23


                 Ohio law prohibits retaliating against an employee who has opposed any

       unlawful discriminatory practice or has made a charge, testified, assisted, or

       participated in any manner in an investigation, proceeding or hearing under R.C.

       4112.01 through 4112.07. R.C. 4112.02(I). When analyzing retaliation claims, Ohio

       courts rely on federal case law.   Chandler v. Empire Chem., Inc., Midwest Rubber

       Custom Mixing Div. (1994), 99 Ohio App.3d 396, 402, 650 N.E.2d 950, 954. To

       prove a claim of retaliation, a plaintiff must establish three elements: (1) that she

       engaged in protected activity, (2) that she was subjected to an adverse employment

       action, and (3) that a causal link exists between a protected activity and the adverse

       action.     Once a plaintiff successfully establishes a prima facie case, it is the

       defendant's burden to articulate a legitimate reason for its action. If the defendant

       meets its burden, the burden shifts back to the plaintiff to show that the articulated

       reason was a pretext. Peterson v. Buckeye Steel Casings, 133 Ohio App.3d 715, 727,

       729 N.E.2d 813 (10th Dist.1999).

       {¶ 63} The only evidence in this regard was that Jeri Oliver, the Human Resource

Manager who had handled Clinton’s complaints, had retired more than a week before

Clinton’s injury. The person who actually handled Clinton’s discharge was not aware that

Clinton was the person who had complained about the noose; instead, she was under the

impression that the complaint had been registered by a different employee (Cordell Holly).

Furthermore, there was no evidence presented to indicate that Faurecia did anything other than

follow standard procedures when Clinton was discharged.         Clinton, therefore, failed to

present genuine issues of material fact regarding the existence of a prima-facie case of
                                                                                            24


discrimination, nor did he present genuine issues of material fact regarding retaliation.

       {¶ 64}    Accordingly, the trial court did not err in rending summary judgment on

Clinton’s claims under R.C. 4112.02. The Fourth Assignment of Error is overruled.



           VI. The Trial Court Did Not Err in Rendering Summary Judgment

                               on Clinton’s Remaining Claims

       {¶ 65} Clinton’s Fifth Assignment of Error is as follows:

                       THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE

                OF   PLAINTIFF        BY    GRANTING        SUMMARY          JUDGMENT       TO

                DEFENDANT        ON     CLAIMS      NOT     PROPERLY        ADDRESSED       BY

                DEFENDANT.

       {¶ 66} Under this assignment of error, Clinton contends that Faurecia failed to

address Clinton’s other causes of action or made conclusory statements without showing that

there were no material facts remaining for trial with respect to the claims for punitive

damages, negligent retention of employees, failure to properly supervise, and respondeat

superior/retaliation. We disagree.

                To prevail on a motion for summary judgment, the party moving for summary

       judgment must be able to point to evidentiary materials that show that there is no

       genuine issue as to any material fact, and that the moving party is entitled to judgment

       as a matter of law. The nonmoving party must then present evidence that some issue

       of material fact remains for the trial court to resolve. Hurchanik v. Swayze, 173 Ohio

       App.3d 760, 2007-Ohio-6166, 880 N.E.2d 503, ¶ 23 (12th Dist.), citing Dresher v.
                                                                                               25


              Burt ,75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996).

              {¶ 67}     We have reviewed the entire record, including the motion for summary

       judgment, Clinton’s response to the summary judgment motion, and Faurecia’s reply

       memorandum in support of summary judgment. Faurecia specifically mentioned each claim

       in the complaint, other than the punitive damages claim, and pointed out why Clinton’s

       evidence did not establish genuine issues of material fact. Clinton then had the burden to

       present evidence of issues of material facts. We will address the claims separately, even

       though Clinton has not specifically mentioned in his brief why summary judgment on the

       remaining claims is inappropriate.



                                A. Negligent Retention and Supervision

              {¶ 68} The elements necessary to prove negligent supervision are as follows:

              (1) the existence of an employment relationship; (2) the employee's incompetence; (3)

       the employer's actual or constructive knowledge of such incompetence; (4) the employee's act

       or omission causing the plaintiff's injuries; and (5) the employer's negligence in hiring or

       retaining the employee as the proximate cause of plaintiff's injuries. Cooke v. Montgomery

       Cty., 158 Ohio App.3d 139, 2004-Ohio-3780, 814 N.E.2d 505, ¶ 23 (2d Dist.)

       {¶ 69} The same elements apply to claims of negligent retention. Hidy, 183 Ohio App.3d

316, 2009-Ohio-3763, 916 N.E.2d 1122, ¶ 38, In Hidy, we noted that “harassing behavior is per se

incompetent behavior.”    Id. at ¶ 39.      Therefore, for purposes of analysis, we assume that the

employees identified by Clinton – James (whose last name was never disclosed), Eric Hensley, and

two unnamed welders who worked in the back – were incompetent in this regard. No evidence was
                                                                                                 26


presented to indicate that Faurecia was actually or constructively aware of their incompetence before

the alleged offensive actions occurred. When Faurecia was notified of the noose and complaint

about comments, the noose was promptly taken down.              An investigation also revealed no

discriminatory basis for the display.

       {¶ 70} As noted, Clinton attempted to provide evidence of Faurecia’s knowledge of

employee harassment, by referring to acts that had occurred many years earlier. However, even if

this testimony is construed in Clinton’s favor, there is no indication that the events that occurred

several years later were caused by the same employees or that any connection existed.

               {¶ 71}    Furthermore, we have already concluded that Clinton failed to present

       evidence of genuine issues of material fact regarding an injury alleged to have been

       proximately caused by workplace harassment or his discharge. Thus, the trial court did not

       err in rending summary judgment in Faurecia’s favor on claims of negligent supervision and

       retention of employees.



                                        B. Negligence and Retaliation

               {¶ 72} Clinton also alleged in the complaint that Faurecia was negligent because it

       knew of racial baiting and harassment, but failed to warn Clinton of the dangers. “To sustain

       an action in negligence, a plaintiff must demonstrate that the defendant had a duty, recognized

       by law, requiring him to conform his conduct to a certain standard for the protection of the

       plaintiff, that the defendant failed to conform his conduct to that standard, and that the

       defendant's conduct proximately caused the plaintiff to sustain actual loss or damage.”

       Phillips v. Dayton Power & Light Co., 93 Ohio App.3d 111, 116, 637 N.E.2d 963 (2d
                                                                                                       27


       Dist.1994). In view of our prior discussion, there are no genuine issues of material fact

       regarding Faurecia’s breach of a duty owed to Clinton, nor about whether Faurecia’s actions

       proximately caused damage to Clinton.             Furthermore, we have previously discussed

       retaliation, and found no genuine issues of material facts in that regard, either.



                               C. Intentional Infliction of Emotional Distress

               {¶ 73}     To establish a claim for intentional infliction of emotional distress, a plaintiff

       must prove that;

               (1) the defendant either intended to cause emotional distress or knew or should have

       known that the actions taken would result in serious emotional distress to the plaintiff; (2) the

       defendant's conduct was so extreme and outrageous as to go “beyond all possible bounds of

       decency”; (3) the defendant's actions were the proximate cause of plaintiff's psychic injury;

       and (4) the mental anguish suffered by plaintiff is serious and of a nature that “no reasonable

       man could be expected to endure it.” A claim for intentional infliction of emotional distress

       must be based on more than “mere insults, indignities, threats, annoyances, petty oppressions,

       or other trivialities.” (Citations omitted.) Harsh v. Franklin, 2d Dist. Montgomery No.

       24331, 2011-Ohio-2428, ¶ 20.

       {¶ 74} Again, Clinton failed to raise genuine issues of material fact regarding this claim.

There was no evidence presented to indicate that Faurecia knew or should have known that its actions

or the actions of its employees would cause Clinton serious emotional distress.



                            D. Respondeat Superior/Ratification
                                                                                                    28


       {¶ 75} Clinton’s seventh claim in the complaint is based on a respondeat superior/ratification

theory. “It is well-established that in order for an employer to be liable under the doctrine of

respondeat superior, the tort of the employee must be committed within the scope of employment.

Moreover, where the tort is intentional, as in the case at bar, the behavior giving rise to the tort must

be ‘calculated to facilitate or promote the business for which the servant was employed * * *.’ ”

Byrd v. Faber, 57 Ohio St.3d 56, 58, 565 N.E.2d 584 (1991).

               {¶ 76}    “ ‘Ratification can be found in conduct of the principal, with full knowledge

       of the facts of the transaction, which either expressly manifests its intention to be bound by the

       acts of its agent or is inconsistent with an intention to repudiate the transaction entered by the

       agent.’ ” (Citations omitted). Sandusky Housing Trust Ltd. Partnership v. Bouman Group,

       10th Dist. Franklin No. 91AP-1249, 1992 WL 158460, *4 (June 30, 1992).

               {¶ 77} We have previously discussed the issue of respondeat superior, and found no

       basis for liability. Likewise, based on our prior discussion, there is no evidence raising

       genuine issues of material fact with regard to whether Faurecia ratified the acts of its

       employees.



                                            E. Punitive Damages

               {¶ 78} Finally, Clinton contends that the trial court erred in failing to rule on the

       punitive damages claim, which was contained in the last count of the complaint. Punitive

       damages are not a separate cause of action; they are a remedy that can be awarded where

       actual damages have been established and the defendant’s actions involve malice or other

       egregious behavior. See, e.g., Gollihue v. Consolidated Rail Corp., 120 Ohio App.3d 378,
                                                                                         29


400, 697 N.E.2d 1109 (3d Dist.1997). Because the trial court rendered summary judgment on

Clinton’s claims, no recovery of punitive damages would have been possible, and the court

did not need to separately address the punitive damages issue,

       {¶ 79} Clinton’s Fifth Assignment of Error is overruled.



                                      VII. Conclusion

       {¶ 80}     All of Clinton’s assignments of error having been overruled, the judgment of

the trial court is Affirmed.

                                        .............

DONOVAN and HALL, JJ., concur.



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Hon. Christopher Gee
