[Cite as Brandner v. Innovex, Inc., 2012-Ohio-462.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
TINA M. BRANDNER, : APPEAL NO. C-110401 TRIAL NO. A-1001132 Plaintiff-Appellant, :
vs. :
INNOVEX, INC., : O P I N I O N.
SIRION THERAPEUTICS, INC., :
and :
VINCENT CAVALIERE, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 10, 2012
James M. Moore, for Plaintiff-Appellant,
Denlinger Rosenthal & Greenberg Co., L.P.A., Mark E. Lutz, Semanoff Ormsby Greenberg & Torchia, L.L.C., Michael J. Torchia and Alfredo Sergio, for Defendant- Appellee Innovex, Inc.,
Dinsmore & Shohl, L.L.P., Michael W. Hawkins and Trevor E. Gillette, for Defendant-Appellee Sirion Therapeutics, Inc.,
Mann & Mann, L.L.C., David S. Mann and Michael T. Mann, for Defendant- Appellee Vincent Cavaliere.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge.
{¶1} Plaintiff-appellant Tina M. Brandner appeals the judgment of the
Hamilton County Court of Common Pleas granting summary judgment to
defendants-appellees Innovex, Inc., (now known as Quintiles Commercial U.S., Inc.),
Sirion Therapeutics, Inc., and Vincent Cavaliere (collectively “Defendants”), on
Brandner’s claims for sexual harassment and retaliation. Because we determine that
no genuine issues of material fact exist with regard to Brandner’s claims and that the
Defendants are entitled to judgment as a matter of law, we affirm.
Factual Background
{¶2} Brandner had begun working for Innovex, Inc., (“Innovex”), in
September 2008, as a pharmaceutical sales representative for Durezol, a product of
Sirion Therapeutics, Inc., (“Sirion”), and her sales territory had included cities within
Ohio, Kentucky, and Indiana. Within the first few months of her employment,
Brandner had ranked first among sales representatives for prescription volume, a
ranking she had maintained largely throughout her employment, and she had
received a bonus for her performance in the last quarter of 2008.
{¶3} Brandner had reported to Cavaliere, a district manager for Innovex.
As a sales representative, Brandner had had infrequent in-person contact with
Cavaliere, except for district meetings and on select “field visits” with doctors.
Nevertheless, Brandner had had multiple interactions with Cavaliere from the start
of her employment until late March or early April 2009, which she alleged had been
harassing. Brandner testified in her deposition that Cavaliere had touched her on
four or five different occasions while the two had driven together on field visits.
Brandner described the touching as a “mini massage” on her shoulder or the middle
2 OHIO FIRST DISTRICT COURT OF APPEALS
part of her thigh. When Brandner had told Cavaliere not to touch her, he had
stopped.
{¶4} Brandner also testified that Cavaliere had made allegedly harassing
comments. While on a field visit, Cavaliere had remarked to Brandner that a
woman’s legs looked good in a skirt, and that Brandner’s legs would probably look
just as nice. Cavaliere also had told Brandner on at least one occasion that she
dressed too conservatively and that she might get more business if she dressed less
conservatively. Cavaliere had told Brandner that her looks would not hurt her when
going on sales calls. On two separate occasions, Cavaliere had commented on
another sales representative’s sexual orientation; additionally, he had made a remark
about another sales representative having a double mastectomy, which he had said
would negatively affect the representative’s sales. Brandner testified that Cavaliere
had remarked once that he would like to go to the lake home that Brandner had
purchased with her boyfriend. Cavaliere had stated that he could go there some time
with his wife, or when his wife was away, he could go there by himself if Brandner
were going to be there.
{¶5} In February 2009, Christine Marcello, who had worked in human
resources for Innovex, had interviewed Brandner and other sales representatives
after a complaint had been made against Cavaliere by another sales representative.
Marcello had concluded, at the end of her investigation, that Cavaliere had an
unprofessional management style at times, although he had not “attacked” anyone
individually. As a result, Cavaliere had been disciplined and had been required to
take three management-training sessions.
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{¶6} Brandner had contacted Marcello on her own initiative in March 2009
after Cavaliere had given incorrect information to doctors regarding a company
program and had cursed in front of one of the doctors, and Brandner had seen
Cavaliere drive past her home after work hours. Brandner testified that she had
become scared of Cavaliere after she had seen him drive past her house, and that she
had felt “very uncomfortable” with him. Brandner had made the same complaints to
Travis Pitre, a national manager for Innovex and Cavaliere’s supervisor, in late
March or early April. Brandner testified that she also had told Marcello about the
incidents where Cavaliere had touched her in the car, where he had commented on
her legs, and where he had commented on the other sales representative’s
mastectomy and sexual orientation. Marcello’s contemporaneous notes had not
mentioned these incidents, and Brandner testified that she could not recall whether
she had told Marcello about these incidents in their conversations in February or
March.
{¶7} After early April, Brandner’s contact with Cavaliere had been limited.
Brandner also testified that her job had not been impaired by the limited interaction,
and Brandner had not made any more complaints to Innovex employees regarding
Cavaliere. Cavaliere had been issued a “final” warning letter from Innovex regarding
his management style and had been instructed to take more training courses. In July
2009, Cavaliere had accompanied Brandner on a field visit, but Cavaliere had driven
separately from Brandner.
{¶8} Meanwhile, in April 2009, Innovex had changed its bonus structure.
Bonuses were no longer based upon prescription volume, but instead were based
upon the number of physicians contacted within the entire territory for all Sirion
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products, and the frequency with which those physicians were contacted. Michael
Radice, an Innovex top manager, testified that Brandner had not been covering
enough of her territory, specifically Indianapolis.
{¶9} According to Marcello’s testimony, in May 2009, and unbeknownst to
Brandner at the time, Cavaliere had recommended Brandner’s termination because
she had not been calling on physicians as expected. Brandner’s employment,
however, continued, and as of June 8, 2009, Brandner had not reached the targeted
threshold for contacting physicians. As a result, Brandner had been placed on a
Performance Management Plan (“PMP”) beginning in July, which meant that
Brandner would not have been eligible for bonuses. Brandner was one of several
sales representatives that had been placed on a PMP at that time.
{¶10} Brandner testified that she had been doing an excellent job and that
computer problems that Cavaliere had failed to address had contributed to her lower
numbers. She also testified that Cavaliere had given her inconsistent guidance
because he had told her to concentrate on her accounts in Cincinnati because of the
high prescription volume obtained from those accounts, but then he had criticized
her in an e-mail for not focusing more on other parts of her territory. Brandner also
testified that Cavaliere had told her that he did not agree with placing her on the
PMP.
{¶11} Brandner’s PMP had continued into August 2009, at which time
Cavaliere’s employer had transitioned from Innovex to Sirion. On September 1,
2009, Brandner’s employment also had transitioned to Sirion. A week later, during a
conference call on September 8, 2009, Brandner had been told by Cavaliere and
Sirion human-resources employee Lillie Espinosa that her employment had been
5 OHIO FIRST DISTRICT COURT OF APPEALS
terminated. Espinosa and Cavaliere maintained that Brandner’s employment had
been terminated because she had violated a company policy and a Federal Drug
Administration regulation requiring a sales representative leaving a pharmaceutical
sample with a physician to actually witness the physician sign for the sample. An
investigation that had been initiated by Cavaliere had uncovered that Brandner had
submitted a form with a physician’s signature, which did not match that physician’s
previous signatures. Brandner essentially conceded that the physician’s signature
was not authentic, but Brandner testified that Cavaliere had told her she did not
actually have to witness a signature if the physician was busy. In her affidavit,
Espinosa stated that any employee who submitted an unauthentic physician’s
signature would be terminated from Sirion.
{¶12} Brandner filed suit in the Hamilton County Court of Common Pleas
against the Defendants, alleging claims for hostile work environment, retaliation,
gender discrimination in pay, breach of the Ohio Whistleblower Act, breach of public
policy, negligent retention and supervision, and intentional infliction of emotional
distress. The Defendants separately filed motions for summary judgment on all of
Brandner’s claims. Brandner also filed a motion for partial summary judgment. The
trial court granted Defendants’ motions and denied Brandner’s motion. Brandner
now appeals the trial court’s decision with regard to her hostile-work-environment
and retaliation claims only.
Summary-Judgment Standard
{¶13} When reviewing a summary-judgment ruling, we apply a de novo
standard of review. Doe v. Shaffer, 90 Ohio St.3d 388, 390, 738 N.E.2d 1243
(2000). Under Civ.R. 56(C), summary judgment is appropriate when no genuine
6 OHIO FIRST DISTRICT COURT OF APPEALS
issues of material fact remain, the moving party is entitled to judgment as a matter of
law, and it appears from the evidence that reasonable minds can come to but one
conclusion, and with the evidence construed most strongly in favor of the nonmoving
party, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio
St.2d 317, 327, 364 N.E.2d 267 (1977).
First Assignment of Error
{¶14} Brandner contends in her first assignment of error that the trial court
erred in granting Defendants’ motions for summary judgment on her claim for
hostile work environment. R.C. 4112.02(A) makes it an unlawful discriminatory
practice for any employer, because of the sex of any person, “to discriminate against
that person with respect to hire, tenure, terms, conditions, or privileges of
employment, or any matter directly or indirectly related to employment.” Case law
interpreting Title VII of the Civil Rights Act of 1964 also applies to cases brought
under R.C. Chapter 4112. Hampel v. Food Ingredients Specialties, Inc., 89 Ohio
St.3d 169, 175, 729 N.E.2d 726 (2000). To prove discrimination on the basis of sex
under R.C. 4112.02(A), a plaintiff can proceed under either of two of theories: (1)
quid pro quo, meaning that the harassment is directly linked to the gain or loss of a
tangible economic benefit; or (2) hostile work environment, meaning that the
harassment has the purpose or effect of creating an abusive working environment.
Id. at 175-176.
{¶15} Because Brandner has alleged a hostile-work-environment claim, she
must show the following:
(1) that the harassment was unwelcome, (2) that the
harassment was based on sex, (3) that the harassing
7 OHIO FIRST DISTRICT COURT OF APPEALS
conduct was sufficiently severe or pervasive to affect the
“terms, conditions, or privileges of employment, or any
matter directly or indirectly related to employment,” and
(4) that either (a) the harassment was committed by a
supervisor, or (b) the employer, through its agents or
supervisory personnel, knew or should have known of
the harassment and failed to take immediate and
appropriate corrective action.
Id. at 176-177, quoting R.C. 4112.02(A).
{¶16} As to the third prong, severe or pervasive conduct, the harassing
conduct must be more than merely offensive; the conduct must be severe and
pervasive enough that the victim subjectively regards the work environment as
abusive, and that a reasonable person would also find the environment abusive.
Kilgore v. Ethicon Endo-Surgery, Inc., 172 Ohio App.3d 387, 2007-Ohio-2952, 875
N.E.2d 113, ¶ 24 (1st Dist.), citing Meritor Savings Bank v. Vinson, 477 U.S. 57, 67,
106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). When determining whether the conduct is
actionable, the court must examine the totality of the circumstances, including (1)
the frequency of the conduct, (2) the severity of the conduct, (3) the threatening or
humiliating nature of the conduct, and (4) whether the conduct unreasonably
interferes with the plaintiff’s work performance. Kilgore at ¶ 25-26, citing Harris v.
Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The
plaintiff must show that the conduct made it more difficult to perform the job.
Bucher v. Sibcy Cline, Inc., 137 Ohio App.3d 230, 245, 738 N.E.2d 435 (1st
Dist.2000).
8 OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} Assuming that Cavaliere’s actions toward Brandner were based upon
Brandner’s sex, although not all of Cavaliere’s actions were evidently made with a
gender-based animus, we cannot, as a matter of law, determine that Cavaliere’s
boorish actions amount to severe or pervasive conduct that altered the terms and
conditions of Brandner’s employment. Cavaliere’s unwelcome conduct toward
Brandner cannot be characterized as frequent. Brandner’s position as a sales
representative had required little in-person contact with Cavaliere, and thus the
incidents of which Brandner complains had occurred over a period of several months
from the beginning of Brandner’s employment in September 2008 to, at the latest,
early April 2009.
{¶18} The most severe conduct by Cavaliere had occurred when Cavaliere
had touched Brandner’s leg or shoulder in the car multiple times, continuing until
Brandner had asked Cavaliere to stop. The other comments Cavaliere had made, for
example, the comment about Brandner’s legs looking nice, the comment about
Cavaliere going to Brandner’s lakehouse if she were going to be there, and dressing
less conservatively, although possibly harassing conduct, did not reach the same level
of severity as the touching.
{¶19} Moreover, Cavaliere’s conduct did not unreasonably interfere with
Brandner’s work performance such that Brandner’s job became more difficult to
perform. Although Brandner testified that she had become scared of Cavaliere after
she had seen him drive past her house, and that she had felt “very uncomfortable”
with him, Brandner also testified that she had had very limited direct contact with
Cavaliere after these incidents, and specifically testified that her job had not been
9 OHIO FIRST DISTRICT COURT OF APPEALS
impaired by the limited interaction. Brandner testified that she had performed well
throughout her employment, even when she had been placed on the PMP.
{¶20} Additionally, with regard to Sirion, the alleged acts of sexual
harassment all occurred prior to Brandner’s employment at Sirion. As Sirion notes,
in order to succeed on a hostile-work-environment claim, a plaintiff must be an
employee at the time of the harassment. Hoyt v. Nationwide Mut. Ins. Co., 10th
Dist. No. 04AP-941, 2005-Ohio-6367, ¶ 71, citing Kinnison v. Advance Stores Co.,
Inc., 5th Dist. No. 02CA73, 2003-Ohio-3387, ¶ 16-17. The undisputed evidence
shows that the allegedly harassing conduct occurred prior to Brandner’s employment
with Sirion.
{¶21} Therefore, after reviewing the evidence in the light most favorable to
Brandner, we determine that she failed to establish a hostile-work-environment
claim against Defendants. Accordingly, summary judgment in favor of the
Defendants was appropriate on Brandner’s hostile-work-environment claim, and we
overrule Brandner’s first assignment of error.
Second Assignment of Error
{¶22} Brandner contends, in her second assignment of error, that the trial
court erred in granting Defendants’ motions for summary judgment on her
retaliation claim. R.C. 4112.02(I) makes it an unlawful employment practice “for any
person to discriminate against any other person because that person has opposed
any unlawful discriminatory practice or because that person has made a charge,
testified, assisted, or participated in any manner in any investigation, proceeding, or
hearing under sections 4112.01 to 4112.07 of the Revised Code.”
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{¶23} In order for Brandner to establish a prima facie case of retaliation
under R.C. 4112.02(I), she must prove that (1) she engaged in a protected activity, (2)
her employer knew of her participation in the protected activity, (3) she suffered an
adverse employment action, and (4) there was a causal relationship between the
protected activity and the adverse action. DuVall v. Time Warner Entertainment
Co., 1st Dist. No. C-980515 (June 25, 1999). Once a prima facie case has been
established, the burden then shifts then to the employer to demonstrate a legitimate,
non-discriminatory reason for engaging in the adverse action. Knepper v. Ohio State
Univ., 10th Dist. No. 10AP-1155, 2011-Ohio-6054, ¶ 25. The burden then shifts back
to the plaintiff to prove that the employer’s reason is a mere pretext for unlawful
retaliation. Id. The employer’s reason is pretextual if the reason is shown to be false
and the discrimination is the actual reason. Id.
{¶24} When determining whether a causal relationship exists between the
protected activity and the adverse action, direct evidence of a causal connection or
knowledge, together with temporal proximity, can create an inference of causation.
Nguyen v. Cleveland, 229 F.3d 559, 566 (6th Cir.2000). But, “[w]here some time
elapses between the protected activity and the subsequent adverse employment
action, the employee must produce other evidence of retaliatory conduct, namely,
evidence of additional discrimination, to establish causation.” Meyers v. Goodrich
Corp., 8th Dist. No. 95996, 2011-Ohio-3261, ¶ 29. Evidence that the employer
treated the plaintiff differently than similarly-situated employees is also relevant in
this analysis. Id. Moreover, “[t]he plaintiff cannot prevail if it appears from the
evidence that the employer would have made the same decision regardless of the
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plaintiff’s participation in the protected activity.” Neal v. Hamilton Cty., 87 Ohio
App.3d 670, 678, 622 N.E.2d 1130 (1st Dist.1993).
{¶25} With respect to defendants Cavaliere and Innovex, assuming that
Brandner’s placement on the PMP constituted an adverse employment action,
Brandner cannot establish a causal connection between her complaints to Innovex
employees and her placement on the PMP. Because months had elapsed between the
complaints and the PMP, Brandner must point to some other evidence of
discrimination. Brandner argues that Cavaliere had had very limited direct
communication with Brandner after the complaints, that Cavaliere had refused to
acknowledge her computer problems, which affected her sales numbers, that he had
recommended Brandner’s termination, and that he had given her inconsistent
directives. The evidence shows, however, that Cavaliere and Innovex would have
placed Brandner on the PMP regardless of her complaints, and that Brandner had
not been treated differently than other PMP-imposed sales representatives when she
too had been placed on the PMP. Brandner, as well as other employees, had been
placed on PMP as a result of failing to meet uniform, targeted goals from Sirion, and
an Innovex top manager testified that Brandner had not been covering enough of her
territory, specifically Indianapolis.
{¶26} With regard to Brandner’s termination from Sirion, even if we assume
that Brandner established a prima facie case of discrimination, Sirion and Cavaliere
provided a legitimate, non-discriminatory reason for Brandner’s termination, which
Brandner failed to establish was pretextual. Sirion and Cavaliere assert that
Brandner had been terminated as direct a result of her failure to comply with the
company’s specific policy and a well-known FDA regulation, which undeniably
12 OHIO FIRST DISTRICT COURT OF APPEALS
required a pharmaceutical sales representative to witness a physician’s signature
when leaving a sample with that physician. Brandner conceded during her
deposition that she had not complied with the policy and regulation, but she also
contends that Cavaliere had told her she did not actually have to witness a
physician’s signature if a physician were busy. Even when construing the evidence in
the light most favorable to Brandner, Brandner cannot refute Sirion employee
Espinosa’s averment that any employee who submitted an unauthentic signature
would face termination from Sirion. Therefore, Brandner has failed to establish that
the reason given for termination from Sirion was a pretext for discrimination.
{¶27} After reviewing the evidence in the light most favorable to Brandner,
we determine that Brandner failed to demonstrate that Defendants would not have
placed her on the PMP and would not have terminated her but for her participation
in protected activity. Therefore, the trial court properly granted summary judgment
on Brandner’s retaliation claim, and we overrule Brandner’s second assignment of
error.
{¶28} The judgment of the trial court is affirmed.
Judgment affirmed.
HILDEBRANDT, P.J., and DINKELACKER, J., concur.
Please note: The court has recorded its own entry on the date of the release of this opinion.