                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



Rebecca Martin,
Plaintiff Below, Petitioner                                                      FILED
                                                                             October 20, 2017
vs) No. 16-1099 (Kanawha County 15-C-594)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
Covestro LLC and Randy Hively,
Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioner Rebecca Martin, by counsel Hoyt Glazer, appeals the Circuit Court of
Kanawha County’s grant of summary judgment to respondents in its October 26, 2016, order.
Respondents Covestro LLC and Randy Hively, by counsel Jan L. Fox and Mark C. Dean, filed
their response to which petitioner submitted a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner Rebecca Martin is an employee of Respondent Covestro LLC (formerly Bayer)
(“Covestro”) where she had been employed as a chemical operator in South Charleston since
2007. According to the circuit court, petitioner and Respondent Randy Hively (“Hively)
previously worked together at Dow Chemical Company and the two got to know one another
after petitioner was hired by Bayer in 2007. Prior to the events at issue, petitioner never had
issues with or concerns about Hively and petitioner had not heard of concerns regarding Hively
from other female employees. Hively worked as a shift supervisor but did not supervise
petitioner’s regular shift; however, Hively was petitioner’s shift supervisor when she worked
overtime.

        On August 1, 2014, petitioner was scheduled to work an overtime shift beginning at
12:45 a.m., with the first four hours of that shift being under Hively’s supervision. The unit
where the two worked is located on an island in the middle of the Kanawha River in South
Charleston. Normally, employees can park on the island near the jobsite, but construction and
maintenance work on the bridge sometimes made it necessary for employees to move their cars
to the “mainland” to ensure that their vehicles are available at the end of their shifts. Due to
bridge issues on August 1, 2014, Hively asked a co-worker to watch petitioner’s job while
petitioner moved her car to the mainland. Hively offered petitioner a ride back to the island but
also offered to have a security guard drive her back. Petitioner chose to ride back with Hively.

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When she got into Hively’s truck, Hively told petitioner he wanted her to know how much he
cared for her son, Martin Powers, who had been discharged from his job at Covestro on July 31,
2014. Petitioner began to cry, and Hively placed his hand on petitioner’s shoulder. Hively then
briefly discussed a man that petitioner had dated many years prior, who was Hively’s cousin.1
The two then went back inside the workplace. Petitioner’s regular supervisor arrived at 4:15 or
4:20 a.m., and petitioner told the supervisor about her conversation with Hively and that she
needed to go home. That supervisor drove petitioner to the mainland to retrieve her car.
Thereafter, petitioner missed over a month of work.

        On March 27, 2015, petitioner filed her complaint.2 She filed her amended complaint on
April 8, 2015, setting forth four causes of action: (1) sexual harassment/hostile work
environment; (2) defamation; (3) tort of outrage; and (4) deliberate intent. On June 30, 2015,
petitioner gave notice to the circuit court that her deliberate intent claim was voluntarily
withdrawn. By order entered on September 23, 2015, the circuit court dismissed petitioner’s
claim for the tort of outrage upon respondents’ motion. By agreed order entered on July 7, 2016,
petitioner stipulated to a voluntary withdrawal of her claim for defamation.

        Respondents filed a motion for summary judgment on July 18, 2016, on petitioner’s
remaining claim of sexual harassment/hostile work environment, to which petitioner submitted a
response and respondents later submitted a reply. The circuit court heard oral argument on that
motion on August 19, 2016, and on October 26, 2016, entered its order granting summary
judgment to respondents. In that order, the circuit court found that petitioner’s claim for sexual
harassment/hostile work environment fails as a matter of law, finding that if petitioner failed to
prove any of the elements set forth in syllabus point five of Hanlon v. Chambers, 195 W.Va. 99,
464 S.E.2d 741 (1995), her claim of hostile work environment fails as a matter of law. The
circuit court found that petitioner had identified only one isolated incident which she alleges was
harassing – Hively’s placing of his hand on her shoulder – which petitioner admitted had no
sexual connotation. It also found that petitioner had failed to demonstrate that the conduct of
which petitioner complained would have occurred “but for” petitioner’s sex. In addition, it
concluded that petitioner had failed to provide evidence of any conduct “that remotely could be
described as severe.” Thus, it held that the undisputed facts and conduct did not rise to the level
of being sufficiently severe or pervasive to alter the conditions of petitioner’s employment or
create an abusive work environment. Because it held that petitioner’s sexual harassment/hostile
work environment claim fails as a matter of law, the circuit court granted summary judgment to
respondents and dismissed petitioner’s claim with prejudice. Petitioner appeals from that order.

       As we have previously stated, “[a] circuit court’s entry of summary judgment is reviewed
de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Further,

                 [s]ummary judgment is appropriate where the record taken as a whole

       1
         Respondents’ counsel contends that Hively raised this topic of conversation in order to
change the subject due to petitioner’s tears.
       2
           Petitioner did not include a copy of the original complaint in the appendix.


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        could not lead a rational trier of fact to find for the nonmoving party, such as
        where the nonmoving party has failed to make a sufficient showing on an
        essential element of the case that it has the burden to prove.

Syl. Pt. 4, id.

        In the instant case, petitioner sets forth four assignments of error. Initially, she asserts that
the circuit court committed clear legal error and abused its discretion by improperly inferring
from the facts that there was no hostile work environment or sexual harassment. She argues that
she properly pled the required elements for a hostile work environment claim and offered
sufficient evidence to support a jury conclusion that she suffered from harassment at work.
Petitioner contends that based on her interaction with Hively, the other men in the workplace
believed she would perform sexual favors so that she was shunned. While she asserts that the
circuit court invaded the province of the jury when it held that the only conclusion to be drawn
from the facts is that the subject conduct was not based on petitioner’s gender, in support of that
statement she points only to her counsel’s argument during the summary judgment hearing
below.

               To establish a claim for sexual harassment under the West Virginia
        Human Rights Act, W.Va.Code, 5-11-1, et seq., based upon a hostile or abusive
        work environment, a plaintiff-employee must prove that (1) the subject conduct
        was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently
        severe or pervasive to alter the plaintiff's conditions of employment and create an
        abusive work environment; and (4) it was imputable on some factual basis to the
        employer.

Syl. Pt. 5, Hanlon.

        Each of petitioner’s other assignments of error fall within this single standard: the circuit
court erred in finding the harassment was an isolated incident; the circuit court erred in finding
that the subject conduct was not based on petitioner’s sex; and the circuit court erred in finding
that respondents’ conduct was not sufficiently severe and pervasive as to alter the conditions of
her employment. Therefore, we will address these alleged errors jointly.

        Without citing to the record, petitioner claims that, because of Hively’s actions, rumors
circulated that petitioner was trying to trade sexual favors to get her son’s job back. Petitioner
also contends that the conduct was so severe and pervasive that it altered the conditions of her
employment. She does not, however, contest the fact that Hively’s physical contact with her
shoulder happened during this single, isolated incident. Further, she admitted that Hively did not
solicit sexual favors or engage in any sexual conversation with her. Instead, her argument
disputing the isolated nature of the alleged harassment focuses on the rumors she says disrupted
her work environment. While petitioner devotes a great deal of her argument to a quote she
contends appears in Hanlon, the portion of the quote she emphasizes and upon which she relies




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heavily does not appear in that case.3 She also points to testimony from Barbara Buck, a
production manager at the plant, who confirmed that a male employee came to her regarding
rumors about petitioner and sexual favors. She also looks to deposition testimony from Danny
Pritt, the secretary/treasurer for the plant employees’ union, who cautioned “them guys” not to
treat petitioner differently than they had before. In response, some of the male employees
indicated to Mr. Pritt that they did not know what to say to petitioner.

         In criticizing Covestro’s investigation into her allegations, petitioner appears to ignore
some of the relevant deposition testimony. For instance, Ms. Buck testified that when rumors
came to management’s attention, multiple meetings occurred with petitioner, Covestro
management, and union representatives in an attempt to address petitioner’s concerns. She also
testified that she did not interview other employees because petitioner failed to provide any
information that would enable Ms. Buck to follow up. Specifically, Ms. Buck testified that
petitioner “told us the story of how her friend had texted her. Gave no names. Didn’t supply us
with any information on how we could even follow up with that. . . .” Ms. Buck still acted to
quell any rumors that “could have possibly occurred.” Petitioner even admitted that she was
aware of Ms. Buck’s efforts to squelch any rumors that may have occurred.

       We have held that

              [a]n employee may state a claim for hostile environment sexual
       harassment if unwelcome sexual advances, requests for sexual favors, and other
       verbal or physical conduct of a sexual nature have the purpose or effect of
       unreasonably interfering with an individual’s work performance or creates an
       intimidating, hostile, or offensive working environment.

Syl. Pt. 7, Hanlon. What petitioner fails to allege or in any way show this Court is that there was
a connection between Hively’s touching of petitioner’s shoulder and any alleged rumors
regarding sexual favors. She does not argue here that Hively started or spread the alleged rumors
or that anything he said to others at the plant resulted in those rumors. She also fails to inform
this Court the alleged duration of the circulation of such rumors. While it was mentioned in the
context of an age discrimination claim, we previously agreed with a circuit court that “[a]n
unfortunate fact of life is that the modern workplace is sometimes a rough and tumble
environment, where pettiness, inconsideration and discourtesy reign. . . .” Johnson v. Killmer,
219 W.Va. 320, 326, 633 S.E.2d 265, 271 (2006). However, without satisfying the criteria set
forth in Hanlon, such conduct is not actionable.

       With regard to her assertion that the circuit court erred by finding that the subject conduct
was not based on petitioner’s sex, she contends that the difference between a man placing his
hands on a woman’s shoulders and rubbing her shoulders proves that Hively’s conduct was
based on her sex. Without citing to the record, she argues that the facts and circumstances clearly

       3
         Despite the fact that respondents point out this error in their response brief, petitioner
did not attempt to rescue that argument in her reply. Instead, it appears that she is choosing to
ignore what appears to be a manufactured quote.


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allow a jury to infer that Hively’s actions and the resulting rumors were based on her sex. Again
failing to cite the record, petitioner contends that the record evidence does not show that Hively
touched male employees as he did petitioner. Due to her failure to cite to the record, it is unclear
to this Court upon what evidence petitioner relies for that assertion. She also does not provide
any information regarding whether rumors of a sexual nature were ever spread around the plant
regarding male co-workers. Therefore, she has failed to show that she “adduced evidence to
show that but for the fact of her sex, she would not have been the object of harassment.” Conrad
v. ARA Szabo, 198 W.Va. 362, 372, 480 S.E.2d 801, 811 (1996).

       For these reasons, we find no error in the circuit court’s grant of summary judgment to
respondents.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

ISSUED: October 20, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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