Long v. City of Cleveland et al, No. 1:2018cv01407 - Document 33 (N.D. Ohio 2019)
Court Description: Opinion & Order signed by Judge James S. Gwin on 2/7/19. The Court, for the reasons set forth in this order, grants defendants' motion for summary judgment. (Related Doc. 19 ) (D,MA)
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Long v. City of Cleveland et al Doc. 33 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO -----------------------------------------------------------------: MIA LONG, : : Plaintiff, : : vs. : : CITY OF CLEVELAND, et al., : : Defendants. : : ------------------------------------------------------------------ CASE NO. 1:18-CV-1407 OPINION & ORDER [Resolving Doc. 19] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Plaintiff Mia Long sues Defendants the City of Cleveland (th— C“ty ), City of Cleveland Department of Public Utilities, and Jose Hernandez for Title VII and Ohio-law sexual harassment, breach of contract, retaliation, and negligent hiring, supervision, and retention. Defendants now move for summary judgment on all claims.1 For the following reasons, the Court GRANTS D—‘—n–ants mot“on. I. Background In 2000, Plaintiff began working for the City of Cleveland Division of Water (the D“v“s“on ) as a business process analyst.2 In 2014 Plaintiff began a consensual romantic relationship with Water Division coworker Defendant Jose Hernandez.3 Plaintiff moved in with Hernandez and in October 1 Doc. 19. Plaintiff opposes. Doc. 29. Defendants reply. Doc. 28. Doc. 20-39 (Long Dep.) at 4. 3 Id. By Pla“nt“‘‘ s own account, H—rnan–—z was not h—r sup—rv“sor. Id. at 7. See also Doc. 20-5 (Division of Water organizational chart). Hernandez did not assign her tasks and she did not report to him. Doc. 20-39 at 7. Plaintiff reported to Melinda Raimann, the major projects group administrative manager, and to Commissioner of Water Alex Margevicius. Id. Plaintiff did perform human resources tasks for the engineering department in which Hernandez worked. Id. 2 Dockets.Justia.com Case No. 1:18-cv-1407 Gwin, J. 2014, the couple became engaged.4 Many good things end and in July 2017 Plaintiff Long ended the relationship and moved out of Defendant H—rnan–—z s hous—.5 On the morning of July 24, 2017 H—rnan–—z s s—cr—tary visited Pla“nt“‘‘ s o‘‘“c—.6 She came by because Hernandez had asked her to deliver a laptop and personal mail that Plaintiff had left in his house when she moved out. The parties dispute how this incident unfolded; Plaintiff states that Hernandez s s—cr—tary thr—w th— items on her desk,7 while the secretary states that she placed them on Pla“nt“‘‘ s –—sk.8 Later on July 24th, Plaintiff visited Division human resources manager Frances Paster to discuss th— morn“n’ s “nc“–—nt. Pla“nt“‘‘ compla“n—– that “t was unpro‘—ss“onal ‘or Hernandez to involve his secretary in their personal matters.9 In a follow-up email to Paster, Pla“nt“‘‘ wrot— that [“]t s almost an abus— o‘ pow—r to put an —mploy—— “n th— m“––l— o‘ a s“tuat“on such as that. 10 Plaintiff says she also complained to Paster about certain past incidents at this meeting. She said that Hernandez discussed details of their personal relationship and sex life with Pla“nt“‘‘ Lon’ s superior, Deborah Mitchell.11 She says that sometime prior to 2017, Mitchell asked Hernandez if he and Plaintiff had sex, and how it was.12 Plaintiff says 4 5 Id. at 5. Id. at 8. 6 Doc. 19-2. Doc. 20-39 at 11. 8 Doc. 19-2 at 2. 9 Doc. 20-39 at 12. 10 Doc. 20-9. Plaintiff made a similar complaint in a July 24, 2017 email to Hernandez. See Doc. 20-8. 11 Doc. 20-39 at 13. 7 12 Id. 2 Case No. 1:18-cv-1407 Gwin, J. that she also related a 2014 Division Christmas party incident where Mitchell asked the couple if they planned to have children.13 Later the same day, Defendant Hernandez went to the Lorain County Court of Common Pleas and that Court issued an ex parte Civil Protection Order against Plaintiff.14 Defendant Hernandez says that several incidents led to this order. First, he states that Plaintiff came into his office during a July 24, 2017, intern meeting and threated to report him to the Director of Public Utilities.15 Second, Hernandez states that Plaintiff slammed his hand in a car door after an acrimonious July 19, 2017, lunch meeting.16 Finally, Hernandez said that Plaintiff threatened to remove his daughter from his house without his permission.17 Defendant Hernandez told the Division about the protective order.18 On July 26, 2017, Plaintiff met with supervisor Melinda Raimann, Frances Paster, and head of human resources Hernando Harge. At this meeting Raimann told Plaintiff that she was going to be temporarily transferred to a Parma, Ohio, Division facility.19 The parties describe different descriptions and justifications for the transfer. Plaintiff says that Defendants separated the former couple unt“l th“n’s cool[—–] –own b—tw——n Id. at 14. Past—r s account o‘ th“s m——t“n’ –o—s not “nclu–— th—s— latt—r two “nc“–—nts. Doc. 25-1 at 21. Paster says that she promptly tol– H—rnan–—z that h— shoul– not –—l“v—r Pla“nt“‘‘ s p—rsonal ma“l at work an– that he should keep his personal issues out of the workplace. Id. 14 Doc. 19-4 at 2. After an August 22, 2017 hearing on the merits, the case was dismissed. See Doc. 20-39 at 18. 15 Doc. 19-4 at 2. 16 Id. Plaintiff states that she does not recall this incident. See Doc. 20-39 at 10. 17 Doc. 24-1 at 23. 18 Hernandez states that the Lorain magistrate instructed him to inform his employer. Doc. 24-1 at 51. 19 Doc. 20-39 at 16. 13 3 Case No. 1:18-cv-1407 Gwin, J. them.20 Raimann and Paster state that they transferred Plaintiff b—caus— o‘ H—rnan–—z s restraining order.21 Plaintiff says that the reason given for moving her, as opposed to Hernandez, was that Hernandez worked as a manager and was needed to oversee staff on-site.22 Further, Paster states that in situations where one city employee takes out a protective order against another, the Water Department used a policy to relocate the individual against whom the order was obtained.23 Wh“l— Pla“nt“‘‘ s pay r—ma“n—– th— sam— a‘t—r th— Parma trans‘—r, the parties dispute whether this transfer decreased Pla“nt“‘‘ s –ut“—s an– essential work functions.24 Plaintiff states that she had no work at the Parma worksite. 25 Conversely, Defendants claim that the t—mporary trans‘—r –“– not –“m“n“sh Pla“nt“‘‘ s –ut“—s or work ‘unct“ons. Plaintiff worked in Parma from August 9, 2017, to August 28, 2017. On August 28, 2017, Plaintiff received a pre-disciplinary hearing notice. With that notice, the Department told Plaintiff the hearing would consider whether: 1) Plaintiff had used Family Medical Leave Act leave to attend a court proceeding; 2) Plaintiff harassed Hernandez and violated 20 Id. Ra“mann subm“ts an unsworn –—clarat“on stat“n’ that at th“s m——t“n’, [Pla“nt“‘‘] was “n‘orm—– that sh— was being temporarily transferred to our Parma facility because of a civil protection order that Jose Hernandez had obtained against her. She was given a copy o‘ th— c“v“l prot—ct“on or–—r an– sh— r—a– “t. Doc. 19-5. Pla“nt“‘‘ s F—bruary 16, 2018 EEOC char’— s——m“n’ly corroborat—s th“s account. In “t, Pla“nt“‘‘s stat—s that th— City of Cl—v—lan– D—partm—nt o‘ Publ“c Ut“l“t“—s –—c“–—– to trans‘—r m— ‘rom my –—partm—nt to anoth—r –—partm—nt b—caus— harass—r ha– ‘“l—– a r—stra“n“n’ or–—r a’a“nst m—. Doc. 20-12. 22 Doc. 20-39 at 16. 23 Doc. 25-1 at 42. 24 On on— han–, D—‘—n–ants r—qu—sts ‘or a–m“ss“on “nclu–— a stat—m—nt that th— Parma trans‘—r –“– not decrease her pay, duties, or essential work functions. Doc. 20-26 at 7 (requests for admission 20, 21, 22). Because Plaintiff did not respond to these requests for admission within 30 days, Plaintiff admits these matters. See Fed. R. Civ. P. 36(a)(3). On the other hand, Plaintiff stated in her deposition that she was not given any work to perform in Parma. See Doc. 20-39 at 19. 25 Doc. 20-39 at 19. 21 4 Case No. 1:18-cv-1407 Gwin, J. his HIPAA rights by discussing his vasectomy with a co-worker; and 3) Plaintiff defamed th— C“ty o‘ Cl—v—lan– “n a Fac—book post wh“ch stat—– [t]he girl gets harassed at work. The ’“rl ’—ts mov—–. 26 Later that day, Plaintiff resigned.27 On February 16, 2018, Plaintiff filed an Equal Employment Opportunity Commission charge alleging Title VII sex discrimination and Americans with Disabilities Act disability discrimination. On February 24, 2018 she received a right-to-sue letter.28 She then brought this suit in the Cuyahoga Court of Common Pleas claiming federal- and state-law sex discrimination, breach of contract, retaliation, negligent hiring, supervision and retention, and severe emotional distress. 29 Defendants removed the action to federal court.30 II. Discussion A. Legal Standard Summary judgment is proper where th— mov“n’ party shows that th—r— “s no genuine dispute as to any material fact and the movant is entitled judgment as a matter of law. 31 The Court views all facts and draws all reasonable “n‘—r—nc—s “n th— l“’ht most ‘avorabl— to th— party oppos“n’ th— . . . mot“on. 32 Rule 56 man–at—s th— —ntry o‘ summary judgment, after adequate time for discovery and upon motion, against a party 26 Doc. 20-16. Doc. 20-17. 28 Doc. 20-25. 29 Doc. 1-4. Plaintiff subsequently dismissed the emotional distress claim. See Doc. 17. 30 Doc. 1. 31 Fed. R. Civ. P. 56(a). 32 Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks omitted). 27 5 Case No. 1:18-cv-1407 Gwin, J. who fails to make a showing sufficient to establish the existence of an element essential to that party's cas—, an– on wh“ch that party w“ll b—ar th— bur–—n o‘ proo‘. B. 33 The Court Grants Summary Judgment to Defendants on Pla“nt“‘‘ s Title VII and Ohio Law Sexual Discrimination Claims Plaintiff claims Title VII34 and Ohio-law sex discrimination on two different theories.35 First, Plaintiff claims that she was subject to a hostile work environment and was forced to resign as a result. She also claims that her Parma transfer was a sex-based adverse employment action. The Court considers each theory in turn. i.) Hostile Work Environment Sexual Harassment To r—cov—r on a host“l— work —nv“ronm—nt cla“m, Pla“nt“‘‘ must show that: (1) h— or she was a member of a protected class; (2) he or she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the charged sexual harassment created a hostile work environment; and (5) the employer is liable.36 Where the alleged harasser is a co-worker, the Plaintiff must demonstrate that the employer knew or should have known of the conduct and failed to take prompt and immediate corrective action.37 A host“l— work —nv“ronm—nt occurs [w]h—n th— workplac— “s p—rm—at—– w“th discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working 33 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. 35 B—caus— Oh“o s ant“–“scr“m“nat“on laws ar— mo–—l—– on T“tl— VII, Oh“o courts hav— h“stor“cally ‘ollow—– federal law when evaluating sexual harassment claims under O.R.C. chapter 4112. See Wholf v. Tremco, Inc., 2015-Ohio-171, ¶ 25, 26 N.E.3d 902, 908. 36 Smith v. Rock-Tenn Servs., Inc., 813 F.3d 298, 307 (6th Cir. 2016) (citing Harris v. Forklift Sys., Inc. 510 U.S. 17, 21 (1993)). 34 37 Id. 6 Case No. 1:18-cv-1407 Gwin, J. environment. 38 The conduct must be so severe or pervasive that both a reasonable observer and the actual victim would perceive the environment as abusive.39 To support a constructive-discharge cla“m, th— Pla“nt“‘‘ must show: a situation in which an employer discriminates against an employee to the point such that [her] `working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign. 40 To establish a constructive discharge claim, a plaintiff must prove first that he was discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign. 41 There is no record evidence from which a reasonable juror could conclude that Plaintiff faced a sufficiently hostile work environment. Long complains about three incidents: 1) the July 24th delivery of her personal mail and laptop; 2) D—borah M“tch—ll s question to Hernandez about th— coupl— s s—x l“‘—; an– 3) D—borah M“tch—ll s qu—st“on whether the couple intended to have children. Taken separately or together, these incidents do not create a hostile work environment. It may have been improper for Hernandez to have his work secretary deliver Pla“nt“‘‘ s p—rsonal ma“l and laptop. But nothing suggests that this impropriety had anyth“n’ to –o w“th Pla“nt“‘‘ s s—x. Th— “mpropr“—ty, as Pla“nt“‘‘ h—rs—l‘ acknowledged in her contemporaneous emails,42 was that Hernandez involved his s—cr—tary “n th— coupl— s personal affairs. 38 39 Randolph v. Ohio Dep't of Youth Servs., 453 F.3d 724, 733 (6th Cir. 2006) Id. at 733. 40 Green v. Brennan, 136 S. Ct. 1769, 1776 (2016), quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004). 41 Id. 42 Docs. 20-8, 20-9. 7 Case No. 1:18-cv-1407 Gwin, J. Supervisor M“tch—ll s sex life question to Hernandez was unprofessional.43 A supervisor should r—‘ra“n ‘rom ask“n’ about th—“r subor–“nat—s s—x l“v—s. But the question was not directed at Plaintiff. F“nally, M“tch—ll s 2014 question whether the couple would have children is innocuous. The couple had been dating for a significant period, and nothing indicates that Supervisor Mitchell knew this question was offensive or unwelcome. Even if these incidents constituted sex-based harassment, no reasonable juror could conclude that three incidents over a multi-year period were so severe and pervasive as to constitute a hostile work environment.44 And no reasonable juror could find these three incidents support Pla“nt“‘‘ Lon’ s construct“v— –“schar’— cla“m. In her summary judgment opposition, Plaintiff submits an unsworn declaration stat“n’ that H—rnan–—z —n’a’—[–] “n a patt—rn o‘ “nt“m“–at“on an– r—tal“atory pract“c—s that was supported by leadership and mana’—m—nt. 45 However, Plaintiff cannot rest on conclusory allegations to resist summary judgment. Sh— must s—t ‘orth sp—c“‘“c ‘acts creating a material issue for trial. She has failed to do so.46 B—caus— Pla“nt“‘‘ s host“l— work —nv“ronm—nt cla“ms ‘a“ls, Pla“nt“‘‘ s ar’um—nt that her eventual resignation constitutes constructive discharge fails as well. To make such a 43 The Court presumes that all facts asserted in affidavits or other evidentiary material by the party opposing summary judgment are true. See Hunt v. Cromartie, 526 U.S. 541, 551 (U.S. 1999). 44 See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (—xpla“n“n’ that “solat—– “nc“–—nts (unl—ss extremely serious) will not amount to discriminatory changes in the terms and conditions of employment and approvingly citing cases granting summary judgment to employers on this basis (internal quotation marks omitted)). 45 Doc. 29 at 27. 46 See Lujan v. Defenders of Wildlife, 504 U.S 555, 561 (explaining that in response to a summary judgment mot“on, pla“nt“‘‘ cannot r—st on . . . m—r— all—’at“ons, but must s—t ‘orth by a‘‘“–av“t or oth—r —v“–—nc— sp—c“‘“c ‘acts. ). 8 Case No. 1:18-cv-1407 Gwin, J. claim, a plaintiff must establish both a hostile work environment and som—th“n’ more . . . working conditions so intolerable that a reasonable person would have felt compelled to r—s“’n. 47 ii.) B—caus— Pla“nt“‘‘ s host“l— work —nv“ronm—nt cla“m ‘a“ls, th“s cla“m ‘a“ls as w—ll. Sex Discrimination Plaintiff alleges that defendants discriminated against her because of her gender. Because there is no direct evidence of discriminatory intent to support this claim, the Court applies the McDonnell Douglas burden-shifting framework to determine whether a defendant violated Title VII.48 First, a plaintiff must establish a prima facie case of sex discrimination by showing that (1) sh— was a m—mb—r o‘ a prot—ct—– class; (2) sh— su‘‘—r—– an adverse employment action; (3) she was qualified for the position; and (4) she was treated differently from similarly situated members of the unprot—ct—– class. 49 Plaintiff may satisfy the fourth requirement by showing that the employment action occurred in circumstances giving rise to an inference of discrimination.50 If a plaintiff is successfully establishes a prima facie case, then the burden shifts to the employer to offer a legitimate, non-discriminatory reason for its action.51 If successful, then the pla“nt“‘‘ must th—n prov— that th— —mploy—r s r—ason was m—r— pr—t—xt.52 The Plaintiff cannot make a prima facie case that the Parma transfer violated Title VII. If the transfer was an adverse employment action, Plaintiff has not pointed to any facts su’’—st“n’ that Pla“nt“‘‘ s sex was the reason for the transfer. By her own account, the 47 Penn. State Police v. Suders, 542 U.S. 129, 147 (2004). McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 49 Knox v. Neaton Auto Prod. Mfg., Inc., 375 F.3d 451, 456 57 (6th Cir. 2004). 50 McDonnell Douglas, 411 U.S. at 802 n. 13. 51 Id. at 457. 52 Id. 48 9 Case No. 1:18-cv-1407 Gwin, J. Division moved her to allow h—r an– H—rnan–—z to cool o‘‘ following their acrimonious breakup. There is nothing in the record indicating that Defendants moved her because she was a woman. And Plaintiff Long does not produce comparator evidence that similarlysituated men were treated differently.53 Even if Plaintiff had a prima facie case, Defendants have put forth a legitimate nondiscriminatory reason for the move: that Hernandez had obtained a restraining order against Plaintiff. In response, Plaintiff Long argues that Defendants are liable because the protective order was fraudulent. Plaintiff seems to mean that it was unreasonable for the Division to believe that Hernandez was afraid of her. But regardless of what evidence supported the court order, a court did grant the order.54 Even if the Division doubted the order s m—r“ts, it was still obligated to separate the two. And as Plaintiff said at her deposition, the reason for moving her, rather than Hernandez, was that he had on-site management responsibilities and Plaintiff did not.55 Plaintiff also cannot claim that D—‘—n–ants “ssuanc— o‘ th— August 28,2017, predisciplinary notice is actionable under Title VII. Mere warnings about potential discipline do not qualify as adverse employment actions.56 Thus, Pla“nt“‘‘ s T“tl— VII an– Oh“o-law sex discrimination claims fail. 53 In her deposition, Plaintiff mentions an incident in which a female colleague had complained about a male employee and the Division moved the male employee. Doc. 20-39 at 39. However, that Plaintiff was treated differently from other female employees who had complained about harassment does not satisfy her prima facie burden. 54 Doc. 20-13. 55 Doc. 20-39 at 19. Further, Paster states that it is city policy to move the individual against whom the protective order is directed in situations where both parties are city employees. See Doc. 25-1 at 42. 56 See Melton v. U.S. Dep't of Labor, 373 F. App'x 572, 577 (6th Cir. 2010) (holding that under both the Transportation Act and Title VII, a warning letter does not constitute a materially adverse employment action). 10 Case No. 1:18-cv-1407 Gwin, J. C. The Court Grants Summary Judgment to Defendants on Pla“nt“‘‘ s R—tal“at“on Cla“m Plaintiff claims that Defendants retaliated against her for complaining about workplace sexual harassment by transferring her to Parma. To maintain a retaliation claim, a pla“nt“‘‘ must show: 1) that sh— —n’a’—– “n act“v“ty prot—ct—– by T“tl— VII; 2) that she was the subject of adverse employment action; and 3) that there is a causal link between her prot—ct—– act“v“ty an– th— a–v—rs— act“on o‘ h—r —mploy—r. 57 If a plaintiff makes such a showing, then the employer must articulate a nondiscriminatory reason for its action.58 If the employer succeeds, then the burden shifts back to the plaintiff to show the employ—r s reason was a pretext for retaliation.59 It is possible, although improbable, that a reasonable juror could find that Defendants transferred Plaintiff to Parma because she complained to Frances Paster about alleged s—xual harassm—nt. Past—r s t—st“mony an– Pla“nt“‘‘ s own —ma“ls su’’—st that th— July 24, 2017, compla“nt was about an abus— o‘ pow—r employee in the mid–l— o‘ a s“tuat“on such as that. 60 that H—rnan–—z ha– put an This allegation does not implicate T“tl— VII. How—v—r, Pla“nt“‘‘ t—st“‘“—– that sh— also –“scuss—– D—borah M“tch—ll s allegedly improper sexual comments. These comments conceivably “mpl“cat— T“tl— VII s prot—ct“ons a’a“nst a host“l— work“n’ —nv“ronm—nt. Tak“n’ Pla“nt“‘‘ s t—st“mony as tru— an– mak“n’ all reasonable inferences in her favor, she shows a prima facie retaliation case.61 57 Cooper v. City of N. Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986). Adamov v. U.S. Bank Nat'l Ass'n, 681 F. App'x 473, 477 (6th Cir. 2017). 59 Id. 58 60 Doc. 20-9. Th— clos— t—mporal prox“m“ty b—tw——n Pla“nt“‘‘ s July 24 compla“nt an– th— July 26 trans‘—r could sustain the inference that the complaint and transfer were causally connected. See Adamov, 681 F. App x at 478 (one-month –“‘‘—r—nc— b—tw——n compla“nt an– act“on —stabl“sh—– causat“on on th— bas“s o‘ t—mporal prox“m“ty alon— ). 61 11 Case No. 1:18-cv-1407 Gwin, J. The burden then requires Defendants to articulate a legitimate, nondiscriminatory reason for the transfer. Here, Defendants state that the reason for the transfer was that Hernandez had obtained a civil protection order against Plaintiff Long. Plaintiff said the same in her EEOC charge.62 Because Defendants had come forward with a non-discriminatory explanation, the burden shifts back to Plaintiff to show that this reason was pretextual. Plaintiff has not met th“s bur–—n, b—caus— th—r— ar— no r—cor– ‘acts su’’—st“n’ that D—‘—n–ants stated reason was pretext for retaliation. Thus, Pla“nt“‘‘ s cla“m ‘a“ls. D. The Court Grants Summary Judgment to Defendants on Pla“nt“‘‘ s Br—ach o‘ Contract Claim Plaintiff claims that Defendants breached an implied contractual obligation to maintain a harassment-free workplace by allowing Hernandez to harass her. She bases this claim on the anti-harassment policy in the C“ty s employee handbook.63 However, Oh“o courts hav— ’—n—rally tak—n th— pos“t“on that company manuals and handbooks, alone, are insufficient to creat— “mpl“—– contracts o‘ —mploym—nt. 64 Thus, Pla“nt“‘‘ s br—ach o‘ contract cla“m ‘a“ls. E. The Court Grants Defendants Summary Ju–’m—nt on Pla“nt“‘‘ s N—’l“’—nt H“r“n’, Supervision, and Retention Claims Plaintiff alleges that Defendants negligently supervised and retained Hernandez, allowing him to harass her. To prevail on a negligent supervision or retention claim, See Doc. 20-12 ( R—spon–—nt –—c“–—– to trans‘—r m— ‘rom my –—partm—nt to anoth—r –—partm—nt b—caus— th— harass—r ha– ‘“l—– a r—stra“n“n’ or–—r a’a“nst m—. ). 63 See Docs. 20-39 at 37; 20-16. 64 Kramer v. Med. Graphics Corp., 710 F. Supp. 1144, 1145 & n.2 (N.D. Ohio 1989) (collecting cases). See 62 also 39 Ohio Jur. 3d Employment Relations § 45 ( [E]mploy—— handbooks generally do not constitute an —mploym—nt contract. ). 12 Case No. 1:18-cv-1407 Gwin, J. Pla“nt“‘‘ must show: (1) th— —x“st—nc— o‘ an —mploym—nt r—lat“onsh“p; (2) th— —mploy——'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.65 There is no evidence that Defendants knew of any alleged misconduct before July 24, 2017, when Plaintiff complained to Frances Paster regarding the personal mail delivery.66 Further, Paster states (and Plaintiff does not contest) that she immediately responded by telling Hernandez to handle any personal business outside the workplace.67 Plaintiff does not identify any other incidents after this date, nor does she suggest that Hernandez victimized anyone else before this incident.68 Thus, this claim also fails. III. Conclusion For the foregoing reasons, the Court GRANTS D—‘—n–ants mot“on ‘or summary judgment. IT IS SO ORDERED. s/ Dated: February 7, 2019 James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE 65 Sygula v. Regency Hosp. of Cleveland E., 2016-Ohio-2843, ¶ 35, 64 N.E.3d 458, 471 At his deposition, Hernandez stated that his last disciplinary incident was in 1998, for misusing sick leave. Doc. 24-1 at 56. 67 Doc. 25-1 at 21. 68 See Doc. 20-39 at 38 ( Q: You ar— not cla“m“n’ [Hernandez] v“ct“m“z—– oth—r p—opl—? A: No. ). 66 13
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