Gliatta v. Tectum, Inc.

Page 992

211 F.Supp.2d 992

Rebecca GLIATTA, Plaintiff, v. TECTUM INC., et al., Defendants.

No. 2:01-CV-199.

United States District Court, S.D. Ohio, Eastern Division.

July 8, 2002.

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D. Patrick Kasson, Gwenn Snyder Karr, Reminger & Reminger Co., L.P.A., Columbus, OH, for plaintiff.

Paul J. Corrado, Michele Smolin, Anthony J. DiVenere, McDonald Hopkins Burke & Haber Co., LPA, Cleveland, OH, for Tectum, Inc., defendant.

Christopher Richard Meyer, Reese Pyle Drake & Meyer, Newark, OH, James M.L. Ferber, Margaret C. Bettendorf, Masarath N. Haque, Littler Mendelson, PC, Columbus, OH, for Doug Tocco, defendant.

James M.L. Ferber, Margaret C. Bettendorf, Masarath N. Haque, Littler Mendelson, PC, Columbus, OH, for Commercial Ceiling, defendant.

OPINION AND ORDER

SARGUS, District Judge.

This matter is before the Court for consideration of several motions. For the reasons that follow, Defendant Tectum's Motion for Summary Judgment (Doc. # 82) is granted; Defendant Tectum's Motion to Dismiss Plaintiff's counterclaims¹ (Doc. # 74) is granted in part and denied in part; Plaintiff's Motion for Partial Summary Judgment (Doc. # 83) is denied; Plaintiff's Motion for Leave to Amend her counterclaim (Doc. # 126) is granted; Plaintiff's Motions for Leave to Dismiss her claims against Defendants Tocco and Commercial Ceiling without prejudice (Doc. # 56 and # 57) are granted, with conditions; Defendants Tocco and Commercial Ceiling's Motion for Summary Judgment (Doc. # 60) is denied as moot; Plaintiff's Motion to Dismiss her retaliation counterclaim (Doc. # 87) is denied as moot; Tectum's Motion for Leave to file a Surreply instanter (Doc. # 111) is granted; and Tectum's Motion to Continue the Trial Date (Doc. # 115) is granted.

I.

Plaintiff, Rebecca Gliatta ["Plaintiff"], brings this action asserting violations of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000, et seq. and Ohio Revised Code Chapter 4112. The Defendants are Plaintiff's former employer, Tectum, Inc. ["Tectum"], as well as Commercial Ceiling and its owner, Doug Tocco. Plaintiff claims that Tocco sexually harassed her in violation of federal and state law. Plaintiff also claims that she was unlawfully retaliated against by her former employer. In addition to her federal claims, Plaintiff asserts claims under Ohio law for intentional infliction of emotional distress, invasion of privacy and discharge in violation of public policy. Defendant Tectum brings a counterclaim against Plaintiff for tortious interference with business relationship. In response to this counterclaim, Plaintiff brings a second retaliation claim under Title VII and state law, as well as state law claims for abuse of process and spoliation of evidence. The Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1367.

Plaintiff was employed by Tectum as a Marketing Manager from June 1992 to December 1999. (Compl.¶ 9). On December 3, 1999 Tectum held a training seminar for its distributors in Columbus, Ohio; Tocco attended the seminar. (Id. at ¶ 10). During the course of the seminar and at a local sports bar afterwards, Tocco made sexually explicit comments directed at Plaintiff in the presence of Tectum management level employees. (Id. at ¶ 11). In particular, Plaintiff claims that (1) Tocco asked Plaintiff to remove her blazer to see what was underneath; (2) Tocco presented an onion ring to Plaintiff and suggested that it was a "cock ring"; (3) Tocco asked Plaintiff if she and her husband, who is a police officer, had sex in the back of his police cruiser and if her husband used his nightstick during sex. (Pl.Dep. at 81, 83, 91). Plaintiff's immediate supervisor Ken Fistrovich was present at the seminar and at the sports bar. (Pl.Aff.¶ 15). Plaintiff contends that Fistrovich did nothing to intervene. (Id.) Fistrovich claims, however, that after witnessing the comments at the sports bar he told Tocco to refrain from such behavior. (Fistrovich Aff. ¶ 6).

On December 6, 1999, the next business day, Plaintiff reported Tocco's sexually harassing comments to Tectum Senior Vice President Sharon Young, after informing Fistrovich that she intended to do so. (Plaintiff Dep. at 159-60). Immediately after speaking to Plaintiff, Young related the incident to Tectum President Michael Massarro and Supervisor Wayne Chester. (Young Dep. at 77-80). Shortly after the incident was first reported, Chester, with the support of other Tectum supervisors, wrote a letter to Tocco condemning his behavior and forbidding him from visiting Tectum or attending future Tectum events. (Chester Dep. at 78; Plaintiff Dep. at 174).

Prior to these incidents, Plaintiff was responsible for managing Tectum's sales leads concerning potential customer inquiries regarding the acoustical tile manufactured and sold by the company. (Pl.Dep. at 203-215, 218). "Sales leads" consist of "bounce back" cards and magazine inquiries, as well as lists of address labels in sealed envelopes. (Fistrovich Dep. at 94-98). Managing the leads consists of responding to the customer inquiries and entering them into a special database designed to track leads. (Pl.Dep. at 203-215, 218). On January 22, 1999, Plaintiff's supervisor, Chester, voiced concerns over Plaintiff's "lack of initiative and sense of urgency" relating to the management of the leads in a performance review. (Fistrovich Dep. at 220-21). On September 7, 1999, Fistrovich sent Plaintiff a memo insisting that she tend to the leads within twenty-four hours. (Pl.Dep. at 216-19).

From December 8, 1999, to December 10, 1999, Plaintiff was absent from the office. (Pl.Dep. at 243). On December 9, 1999, while looking for a file in Plaintiff's desk, Fistrovich found several bounce back cards and unopened envelopes containing lists of leads dating back several months which had not been entered into Tectum's database, nor had the customers been contacted. (Fistrovich Dep. at 30-34). Plaintiff claims that fewer than one-hundred (100) leads had been neglected. (Pl. Aff.¶ 8). Tectum claims that the neglected leads and bounce back cards numbered approximately seventeen-hundred (1700); Tectum has produced unrefuted evidence of four hundred thirty-five (435) unanswered leads and bounce back cards. (Defendant's Reply Brief in Support of Motion for Summary Judgment, exhibit B and C).

On December 13, 1999, Plaintiff asked to be transferred out of the Marketing Department primarily because of the way Fistrovich handled the Doug Tocco situation. (Pl.Aff.¶ 22) On December 17, 1999, Tectum terminated Plaintiff's employment. (Id. at ¶ 13). Plaintiff claims that her termination was in retaliation for her complaint of sexual harassment and transfer request. (Compl., ¶ 19-22). Tectum claims that Plaintiff was terminated for failing to adequately manage the leads and bounce back cards, and for violating the policy of not discussing terms of bonus paychecks with other employees. (Fistrovich Dep. at 77-83; Exhibit 10 attached to Motion for Summary Judgment). With respect to the latter, it is undisputed that Tectum has a company policy that prohibits the discussion of salaries and bonus compensation among employees. It is further undisputed that Plaintiff violated the policy.

Plaintiff filed this case alleging sexual harassment and retaliation in violation of Title VII and state law. Plaintiff also asserts claims for intentional infliction of emotional distress, invasion of privacy and discharge in violation of public policy. In response to Plaintiff's claims, Tectum brings a counterclaim for tortious interference with business relationship. In particular, Tectum claims that Plaintiff's alleged failure to adequately manage the leads and bounce back cards was willful and intentional. Tectum claims that, as a result of Plaintiff's failure, Tectum's sales leads grew "stale and therefore became worthless, all of which caused Tectum to sustain financial injuries and damages such as lost profits, marketing costs, and the loss of prompt pay discounts [as well as loss of] reputation, business relationships and good will." (Am. Answer and Counterclaim at ¶ 7). In response to this claim, Plaintiff asserts claims for retaliation under Title VII, abuse of process and spoliation of evidence.

II.

Defendant Tectum's Motion for Summary Judgment

Standard of Review

The procedure for granting summary judgment is set forth in Fed.R.Civ.P. 56(c), which provides in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law.

The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Matsushita Electric Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice. For example, complex cases and cases involving state of mind issues are not...