Montgomery v. ExchangeBase, L.L.C.

2024 Ohio 2585

• Court: Ohio Court of Appeals
• Decided: July 3, 2024
• Docket: 113401
• Status: Published

Opinion

[Cite as Montgomery v. ExchangeBase, L.L.C., 2024-Ohio-2585.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MIRANDA MONTGOMERY, :

Plaintiff-Appellant, : No. 113401

v. :

EXCHANGEBASE, LLC, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: July 3, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-966833

Appearances:

Kaufman, Drozdowski & Grendell, LLC and Evan T. Byron, for appellant.

Fadel & Beyer, LLC, Timothy R. Fadel, and Nicholas A. Boggs, for appellees.

EILEEN A. GALLAGHER, J.:

Plaintiff-appellant, Miranda Montgomery, appeals from the trial

court’s order granting summary judgment in favor defendants-appellees,

ExchangeBase, LLC (“ExchangeBase”), Alex Kowalski and RiverCap Holdings, LLC

(“RiverCap”) (collectively, “appellees”), on her claims for disparate treatment, sex discrimination, hostile work environment, constructive discharge, violation of

public policy and intentional infliction of emotional distress. Montgomery contends

that the trial court erred (1) in refusing to consider certain evidence she submitted

in opposition to appellees’ motion for summary judgment and (2) in granting

summary judgment in appellees’ favor on her claims. She asserts that, when

reviewing all the evidence, reasonable minds could differ as to whether appellees

subjected her to “such pervasive gender/sex-based disparate treatment and [a]

hostile work environment” that any reasonable person in her position would have

felt “compelled to resign” and that summary judgment was, therefore, “not

warranted.”

For the reasons that follow, we affirm.

I. Procedural and Factual Background

A. Montgomery’s Employment by ExchangeBase

ExchangeBase manages a network of energy assets and connects

buyers and sellers of products, equipment and services in the oil, gas and energy

industries. RiverCap is the parent company of ExchangeBase. Kowalski is the

president, chief operating officer and majority owner of ExchangeBase and

RiverCap.

In October 2017, ExchangeBase hired Montgomery as one of several

senior project managers in its oil and gas division. As a senior project manager,

Montgomery managed projects for oil and gas companies that were clients or

customers of ExchangeBase. Montgomery joined the company at the same time as two other senior project managers, Amy Bakos and Jeff Cool. They joined three

existing senior project managers, Brian Matthews, Jon Bok and Tom Sheridan.

Montgomery’s compensation, like that of all of the senior project managers,

included a base salary and commissions. Sheridan was initially Montgomery’s

direct supervisor.

When Montgomery began her employment at ExchangeBase, her

compensation was $70,000/year salary plus 3 percent commission on the gross

margin of deals she closed. In September 2018, Montgomery’s base salary increased

to $100,000/year. Approximately two months later, the company agreed that

Montgomery could work from home and her compensation was changed to a salary

of $70,000/year plus 8 percent commission. Montgomery’s base salary later

increased to $85,000/year.

In March 2019, Kowalski assumed direct management of the senior

project managers and became Montgomery’s direct supervisor. He indicated that

employees were no longer permitted to work from home and that “the option was

off the table for everybody moving forward.”

At approximately 7:30 p.m. on April 4, 2019, Kowalski sent a text

message to Montgomery and two other senior project managers, Matthews and

Johnny Donofrio, communicating his displeasure that customers were being

contacted by email instead of by telephone and indicating he had scheduled a

meeting for 9:45 a.m. the next morning to discuss the issue. Upon receiving the text,

the two other senior project managers called Kowalski. Montgomery did not. She testified that she was asleep when the text was sent and that when she woke up at

10:00 p.m. and saw the text, she “didn’t see a reason” to call Kowalski because a

meeting was already scheduled for the following morning.

At the meeting on April 5, 2019, Kowalski thanked Matthews and

Donofrio for being “respectful” and contacting him after receiving his text message.

He told Montgomery that her failure to call him was disrespectful and “f******

foolish.” She testified:

[Kowalski] looked at me and said, “Miranda, there’s no reason why you didn’t call me. I don’t know why the f*** you wouldn’t call me.” He wanted me to explain to him why I didn’t call him. He was very aggressive and said that it was f****** foolish for me not to have called him and that the only two respectful people in the room were Johnny and Brian; and that if I had respect or any f****** sense, that I would have called him the night before when I received the text message. I told him that I didn’t see any reason to call. The text did not say “call me,” and that’s why I didn’t call. So he told me that I was a f****** fool one more time before moving on . . . .

Kowalski testified that he thought Montgomery’s failure to call him

after receiving his April 4, 2019 text was “disrespectful” and “f****** foolish” and

that he conveyed this and his “anger at them” to Montgomery and the other senior

project managers during the April 5, 2019 meeting.

Montgomery stated that it was a “common occurrence” for Kowalski

to use the term “f***” in the office in a “[l]ike casual” way, e.g., during “a group lunch

or something like that,” but that April 5, 2019 was the first time he had directed the

term towards her in what she perceived was “a very derogatory way.” Montgomery

testified that she did not perceive Kowalski’s use of the term as being “sexual” but that his tone and language were “inappropriate.” She indicated that she did not

believe Kowalski had a right to be angry with her, that she was “embarrassed” and

“upset” for being “singled out” in front of her coworkers for failing to call Kowalski

after receiving his text message and that it was a “difficult day” for her “emotionally

and physically.” She stated that after the meeting, she, Matthews and Donofrio had

a conversation where they discussed “being dissatisfied with [Kowalski’s] anger,

disagreeing with his anger, and just kind of being shocked at the way the meeting

went.”

On April 9, 2019, Montgomery received an email from a client who

wished to procure a specific piece of equipment. Montgomery stated that she was

unfamiliar with the equipment and did not know what her “next step” should be, so

she asked another employee, Jim Klosz, ExchangeBase/RiverCap’s former

managing director of strategic growth, what she should do. Klosz told Montgomery

he would attempt to get answers to her questions. Later that day, Klosz relayed

Montgomery’s questions to Kowalski. In response, Kowalski told Klosz that if he

were Klosz and Montgomery had asked him the questions she had asked Klosz, he

would have told her to “go f*** herself.”

Kowalski related the conversation he had had with Klosz regarding

Montgomery to Montgomery, Donofrio, Matthews and Klosz during a meeting with

them the following day. Montgomery testified:

So I go into the meeting on April 10th assuming we’re just going to discuss work flow and protocol of what to do with projects when we receive them. . . . So the meeting began, and Alex started out and said — he said, “I’m going to give everybody a little behind the scenes look at a conversation that I had with Jim yesterday.” He said, “Jim came to me with a question that Miranda had, and it was a question that she should have known the answer to.” He said, “Do you all know what I said to Jim?” He said, “I’m going to tell you what I said to Jim. I told Jim to tell Miranda to go f*** herself.” And he looked at me very strongly when he made that statement. From that point he explained that there was no reason I didn’t know the answer to that question.

According to Montgomery, Kowalski went on to state that, given how

much they were paid, he believed his employees “should be held to higher

standards” and “should not be stupid and ask like stupid questions.”

Kowalski testified that he told Klosz that if Montgomery had asked

him the questions she had asked Klosz, he would have told her to “go f*** herself”

because, in his view, Montgomery was “seeking to have Jim Klosz answer questions

on a project for which she should have known the answers or taken the initiative to

find the answers to her questions,” improperly shifting the burden of answering her

questions onto Klosz. He explained that he shared his conversation with Klosz with

the group because he considered this “a teaching opportunity to emphasize the need

for self-motivation and problem solving among all Senior Project Managers.” He

claimed that during the meeting Montgomery “became enraged, began yelling and

cursing, quit her job, then told me that I should go f*** myself, among other things.”

Donofrio offered similar testimony. He testified that after Kowalski repeated his

conversation with Klosz, Montgomery said: “[T]ake my salary, give it to someone

else and you can go f*** yourself. I am going to get my purse and leave. I am not

going to deal with you anymore. I’ll tell HR that you told me to go f*** myself.” Montgomery testified that after Kowalski related his conversation

with Klosz to the group, it took her “about 30 seconds to make the decision” to

terminate her employment with ExchangeBase. She explained:

I was so physically uncomfortable in that room with those men knowing that they had had a private conversation having me — having me as the topic and telling me to go f*** myself. To go f*** myself. I was completely alone. I was the only female in the room. And knowing, number one, that that conversation was had about me in private, like it makes me feel disgusting, and it makes me feel like uncomfortable in that workplace. . . . And the second part of it was having it to be like a display at the meeting, again in front of my male co-workers, to me it very clear that he wanted me to f*** myself. I didn’t feel like I had a choice because I couldn’t physically be in that environment anymore and know that I was being talked about in a sexual way behind my back and then to have it rediscussed all at the meeting all for asking a simple question. I had to leave.

She stated that she felt like, in that context, “go f*** yourself,” as used by Kowalski,

was a “sexual reference.”

Montgomery denied telling Kowalski, during the meeting, that he

could “go f*** himself” but stated that she was “a mess,” “in tears, shaking,

emotionally distraught” and “could have” “potentially” made such a statement in the

hallway after exiting the meeting. She stated that she did not recall “if [she] used

those terms or not.” She testified that, after gathering her belongings from her

office, she told Kowalski, “I will be sure to let HR know that the reason I’m leaving

today is because you made me feel uncomfortable with your sexual statements.”

Following the April 10, 2019 meeting, Montgomery submitted a

resignation letter to Jacob Brown and Emily Anne Reddy in ExchangeBase’s human

resources department. In her letter, Montgomery “recapped” the events surrounding the April 10, 2019 meeting and stated that she was resigning her

position because, due to the “verbal abuse and intimidation” she experienced during

that meeting, she “no longer [felt] safe in the toxic and verbally threatening work

environment at ExchangeBase.” Her letter stated:

May this letter serve as my official resignation from ExchangeBase. Please see below re-cap of the events from today, April 10, 2019 to reflect the reason of my resignation:

...

Alex began the meeting by talking about babies, and how we are not babies. He said babies stick their fingers in light sockets and do not know how to flush toilets, and no one at ExchangeBase is a baby.

—He then said that he wanted to give us a little “behind the scene’s [sic] look” at a conversation he had yesterday (referring to April 9, 2019) with one of our colleagues, Jim Klosz. He said Jim came to me with a question that Miranda had about one of her projects with Hess. Alex said “Behind the scene’s [sic] I looked at Jim and said you know what I would tell Miranda to do Jim? I would tell Miranda TO GO F*** HERSELF”

After Alex said for me to “GO F*** MYSELF” I gathered my things, stood up in the middle of the meeting and told him I was quitting because I did not have to allow anyone to speak to me that way. I told him I was going to go back to my office, get my purse and personal belongings and immediately exit the building. On my way out I told him that I would be sure to let HR know the reason I am quitting is because he told me to “GO F*** MYSELF.”

I gathered my personal belongings, got into the elevator, got into my car, and immediately drove off the premises. I left the workplace because I did not feel comfortable or safe in the workplace any longer. I did not feel comfortable knowing that my President/CEO/Acting Director of Business Development had a private conversation with my colleague Jim Klosz on April 9, 2019 without my knowledge or permission using sexual terms about me. ...

Today, April 10, 2019 Alex Kowalski used verbal abuse, and an attempts [sic] to intimidate, which made me feel unsafe and uncomfortable in my workplace.

Montgomery further stated in her letter that this was not the first time

Kowalski had “made [her] feel uncomfortable with his threatening language in the

workplace” and described the events of April 4-5, 2019, relating to Kowalski’s text

message, Montgomery’s failure to call him following receipt of his text message and

Kowalski’s criticism of her, describing her as a “f***ing fool,” in front of her

colleagues.

Montgomery claimed that Kowalski’s conduct violated provisions of

the company’s employee handbook that prohibited “[t]hreats, threatening language,

or any other acts of aggression or violence made toward or by any employee” and

“[v]erbal [b]ullying.” According to Montgomery,1 the handbook defined “threat” to

include “any verbal or physical harassment or abuse, attempts to intimidate others,

menacing gestures, stalking or any other hostile, aggressive, and or destructive

actions taken for the purposes of intimidation” and defined “[v]erbal [b]ullying” as

“[s]landering, ridiculing, or maligning a person or his/her family; persistent name

calling that is hurtful, insulting, or humiliating; using a person as the butt of jokes;

abusive and offensive remarks.”

1 The employee handbook is not in the record on appeal. During her deposition, Montgomery confirmed that the reason she

terminated her employment with ExchangeBase was due to the “verbal bullying” she

experienced on April 5, 2019 and April 10, 2019: “I quit because Alex had a private

conversation with [sic] me in a sexual way with Jim Klosz, and then he reiterated

that private sexual conversation in the meeting. Those are the reasons that I quit.”

B. Montgomery Sues Appellees

On September 16, 2019, Montgomery filed a complaint against

appellees in the Cuyahoga County Court of Common Pleas, Cuyahoga C.P. No. CV-

19-921551 (the “dismissed action”), asserting claims of sex discrimination-hostile

work environment, sex discrimination-disparate treatment, constructive discharge,

violation of public policy and intentional infliction of emotional distress against

appellees. After conducting discovery, appellees filed a motion for summary

judgment. Montgomery voluntarily dismissed her complaint without prejudice on

August 2, 2021.

On August 1, 2022, Montgomery refiled her complaint in the

Cuyahoga County Court of Common Pleas, once again asserting claims of sex

discrimination-hostile work environment, sex discrimination-disparate treatment,

constructive discharge, violation of public policy and intentional infliction of

emotional distress against appellees. The allegations of Montgomery’s refiled

complaint centered around the April 9 and 10, 2019 incidents and were virtually

identical to those of her initial complaint. Montgomery alleged that she had been

subjected to “harassment, belittling, and demeaning comments and conduct” by her direct supervisor Kowalski and that the “harassing conduct” was so “severe and

pervasive” that she was “forced to resign.” Montgomery further alleged that

“similarly situated male employees” at ExchangeBase were “treated better” than her,

e.g., that (1) male employees were paid more in compensation despite performing

below her level, (2) when a male employee (i.e., Matthews) quit, his pending deals

were all given to another male employee and not spread out among Montgomery

and other employees, (3) “male employees were not subjected to the ridicule” to

which Montgomery was subjected and (4) a former male employee who quit

received commissions on deals that closed after his departure, while Montgomery

did not. Montgomery claimed that as a result of appellees’ intentional, extreme and

outrageous conduct, she had suffered “severe” mental anguish, lost wages, loss of

reputation, humiliation, embarrassment and loss of self-esteem. Montgomery

requested judgment against appellees, jointly and severally, and an award of

compensatory and punitive damages, attorney fees and costs.2

On September 29, 2022, appellees filed an answer in which they

denied most of the material allegations of the complaint and asserted various

defenses.

C. Appellees’ Motion for Summary Judgment

On May 2, 2023, appellees filed a motion for summary judgment on

all of Montgomery’s claims. Appellees argued that they were entitled to summary

2 Although Montgomery purportedly attached several exhibits to her complaint,

the exhibits are illegible in the copy of the complaint that is in the record. judgment because there were no genuine issues of material fact and that, based on

the undisputed facts, Montgomery could not prove essential elements of her claims

against appellees as a matter of law. Specifically, appellees argued that

Montgomery’s sexual harassment-hostile work environment claim failed because

Montgomery could not establish that Kowalski’s statements on April 9 and 10, 2019

were based on sex or were sufficiently severe or pervasive to affect the terms,

conditions or privileges of employment.

They argued that Montgomery’s other claims failed because (1)

Montgomery had no evidence that she was treated worse than male employees or

had suffered any adverse employment action because of her gender, (2) Kowalski’s

“f*** yourself” statement did not “rise to the level of making working conditions so

intolerable that a reasonable person would have felt compelled to resign over such a

statement” and ExchangeBase was not given “an opportunity to correct the

situation,” (3) R.C. 4112.02 adequately protects the public policies of sexual

harassment, sex discrimination and constructive discharge such that there is “no

additional public policy claim to recognize,” (4) Kowalski’s comments did not

constitute “extreme and outrageous conduct” and there was no evidence

Montgomery had sustained “severe and debilitation distress” as required to support

a claim for intentional infliction of emotional distress and (5) Montgomery had

stated no claims upon which liability could be imposed against Kowalski

individually. In support of their motion, appellees submitted excerpts from the

transcript of Montgomery’s deposition (taken in the dismissed action), a copy of

Montgomery’s resignation letter and affidavits from Brian Donahue (the managing

director of operations for ExchangeBase/RiverCap), Kowalski and Donofrio.3

In his affidavit, Donahue testified regarding a “spreadsheet of

compensation comparisons” for senior project managers during the time

Montgomery was employed as a senior project manager for ExchangeBase he had

prepared (the “salary spreadsheet”), a copy of which was attached to his affidavit.

He averred that compensation packages for senior project managers “typically”

included both a salary component and a commission component that varied

“depending on factors such as seniority, performance, knowledge, [and] abilities.”

He denied that Montgomery’s compensation package was “based on her sex or

gender.”4 He further averred that, following her termination, ExchangeBase paid

Montgomery “all outstanding compensation owed” as well as “commission amounts

. . . she was not entitled to receive but which were paid as a gesture of good faith to

her.” He also claimed that during its “normal operations,” ExchangeBase employees

are “provided very direct feedback, positive and negative, which may often include

3 Appellees also submitted a document purporting to be Klosz’s affidavit. That document was not signed or notarized and, therefore, was not considered by the trial court in ruling on summary judgment. We, likewise, do not consider it here.

4 The record reflects that among the three new hires when Montgomery started at

ExchangeBase — Montgomery, Bakos and Cool — Bakos, a female, was paid the highest base salary. As the trial court observed, “very few trends of any type” are otherwise “evident” from the salary spreadsheet. use of the word ‘fuck’ or variations of that term,” that this is true “for all employees,

male or female” and that use of the term “contains no reference to sex, gender, nor

innuendo related thereto.”

In his affidavit, Kowalski outlined his view of the events of April 4-5

and 9-10, 2019 and his interactions with Montgomery, Klosz and the other senior

project managers on those dates as detailed above. Kowalski also addressed the use

of the word “f***,” generally, in “the operation of [ExchangeBase’s] business and

interaction among employees” and his use of the expression “go f*** herself,”

specifically:

The word “f***” is a word that is used occasionally in the operation of our business and interaction among employees. When used, it is without regard to sex or gender and is used in circumstances of positive and negative performance uses and feedback, as well as other work- related discussions. The term is not used to refer to sex or libidinal references in the workplace.

The expression [“go f*** herself”] was not related to sex or gender and, when used, is used regardless of gender among men and women. There was no context during the April 10 meeting that had any reference nor anything to do with sex or gender. It was in connection with what I believed to be a failure of Plaintiff to properly perform her job.

In their affidavits, Klosz and Donofrio related their recollections of

the events of April 9-10, 2019, as detailed above.

Montgomery opposed the motion. In her opposition, Montgomery

asserted that her claims were not limited to the specific allegations set forth in her

complaint but included other allegations that she had described in her responses to discovery requests in the dismissed action and during her deposition in the

dismissed action. Specifically, Montgomery identified ten alleged incidents during

her employment at ExchangeBase5 that she claimed were “discriminatory and

hostile”:

• Incident 1 — On her first day of training, Bok, a senior project manager who was supposed to be training Montgomery, told her that “they were out celebrating a huge project win the night before,” “described that they went to a strip club,” “apologized for still being drunk” and ended up going home without training her. She indicated that her relationship with Bok was “friendly” and “professional” following that “isolated incident.”

• Incident 2 — When another senior project manager, Matthews, left the company in the spring of 2018, his three open projects were all given to Bok instead of being distributed among Bok, Bakos and Montgomery — even though they were all senior project managers. When Montgomery and Bakos raised the issue with Sheridan, Sheridan stated that he had worked with Bok (a male) for an “extensive amount of time” and “trusted him” and that Montgomery and Bakos (both females) hadn’t worked with him long enough for him to know they could handle the extra projects. Montgomery acknowledged that Bok had more experience than her. (At the time, Montgomery had worked for the company for eight months and had closed one project.) When Montgomery told Sheridan that she and Bakos were upset because Bok would receive the commissions on those projects, Sheridan informed her that Matthews would be receiving the commissions on the projects. Montgomery indicated that she was still upset by the unequal distribution of Matthews’ projects because Bok would receive any projects from those companies going forward and she felt one of the three projects should be hers.

• Incident 3 — In 2018, once when Montgomery was wearing a “springtime” dress, Kowalski stopped in the middle of a conversation with Sheridan, looked at Montgomery, her chest,

5 The incidents are not in date order. They are numbered and ordered here as they

were numbered and ordered in Montgomery’s opposition. side and legs and said, “Mmm. Looks like you might have lost a little bit of weight, young lady.” Montgomery told Sheridan that the interaction with Kowalski had made her uncomfortable. She indicated that Sheridan laughed and said, “[I]t wasn’t a big deal. . . . That’s how Alex is. He was just being funny. Don’t take it personally.” Montgomery stated that she did not report the incident to human resources because Kowalski was the “be-all, end-all” in the company and she felt that if she had reported the incident, “it would have resulted in nothing.”

• Incidents 4 and 6[6] — Sheridan once directed Montgomery to use her “sweet southern charm” to “sweet talk” a supplier into settling an invoice by placing a wine order at a liquor store for pick up by Sheridan. Although Sheridan reportedly did this “all the time,” Montgomery claimed Sheridan’s actions were discriminatory because he “never told a male employee to use their sweet voice to another male client in order to receive a wine payment from the liquor store.”

• Incident 5 — Sheridan announced at a meeting on a Friday afternoon, which “might have included the entire sales team and entire supply chain team,” that the company had an opening for a director of business development. He stated that the position was “open to anyone,” to “take the weekend to think about it” and “let us know if you’re interested.” Montgomery was interested in the position and planned to think about it over the weekend. On Sunday afternoon, Sheridan informed her that another project manager, Logan Stetzer, who had been hired after her, had been offered and accepted the position. When Montgomery told Sheridan she had been interested in the position but had been thinking about it over the weekend as suggested, Sheridan replied that she “should have been more like Logan and grabbed the bull by the horns and expressed [her] interest.” Sheridan told her that Stetzer had come up to him after the meeting, told Sheridan that he was extremely interested in the position, interviewed and presented a slide show for the position on Saturday and was hired for the position on Sunday. According to Montgomery, Stetzer lacked sufficient experience for the position and she and another project manager, Dan

6 It is not clear from Montgomery’s opposition why this incident is deemed two

separate incidents. It appears to a relate to a single incident. Pfeiler, bonded over the “secret” hiring and failure of Stetzer in the position.

• Incident 7 — Because there was no mention of maternity leave in the employee handbook, Montgomery asked Sheridan if she would receive maternity leave if she became pregnant. Sheridan responded, “Yeah. I would give you some time off, obviously.” Upon further inquiry about what would happen to her accounts when she came back from maternity leave, Sheridan explained that “taking off extensive amounts of time from this specific job would not lead [Montgomery] to be successful.” Referencing other successful project managers, Sheridan queried: “Are any of those people mothers? . . . Have any of those people taken maternity leave? . . . You just have to think smart.”

• Incident 8 — On Montgomery’s first day of work at ExchangeBase, as the three new project managers — Montgomery, Bakos and Cool — were being split up to receive training and learn about the company, Sheridan said to Cool, a male, “You’re sitting with me today. We’re going to make sure you get the first project and show these women how the work here is done.” Although the project managers got projects on their own and all of the project managers got projects, Montgomery claimed that the statement was discriminatory because it implied that “the male is more likely to get the first project versus the female,” i.e., that “Tom felt that as Jack [was] a male, he had a greater ability and a higher chance of receiving the first project as opposed to Amy and I receiving the first projects because of our gender.”

• Incident 9 — Montgomery claimed to have had conversations with three male senior project managers (Matthews, Dan Pfeiler and “Jeff”) in which they claimed to be making a larger base salary than Montgomery was making at the time.

• Incident 10 — “The Final Straw (April 2019)” “detailed in the Complaint [and] in Ms. Montgomery’s deposition.”

As evidence of these alleged incidents, Montgomery cut and pasted

large chunks of testimony from her deposition with little discussion, explanation or

argument. Montgomery claimed that the court was “required to look at the cumulative facts and circumstances of [Montgomery’s] entire employment with

ExchangeBase” in determining whether Montgomery was “not constructively

discharged as a matter of law” and that “her complete deposition testimony

establishes that her case must go to a jury.”

In her opposition, Montgomery did not address the specific elements

of her claims for sex discrimination-hostile work environment and sex

discrimination-disparate treatment and did not show how the evidence she

presented could satisfy those elements. She merely identified what was generally

required to establish constructive discharge, i.e., that an employer’s conduct

resulted in working conditions that were so intolerable a reasonable person would

have felt compelled to resign under the circumstances, and then, in a conclusory

manner, asserted that “[a] reasonable jury could easily decide, based on all the facts

and circumstances, that Ms. Montgomery had no choice but to resign and that the

intolerable work conditions she endured were all premised on her sex/gender.”

Montgomery did not mention her violation of public policy claim in

her opposition and, with respect to her claim for intentional infliction of emotional

distress and her attempt to impose individual liability on Kowalski, stated only: “The

Court is well versed on the elements of intentional infliction of emotional distress

and on individual employer [sic] liability. Ms. Montgomery respectfully submits

that this brief also establishes that summary judgment is not appropriate on either

of those claims as well.” In support of her opposition, Montgomery attached copies

of (1) the transcript of her deposition in the dismissed action, (2) correspondence from appellant’s counsel to appellees’ counsel requesting that the parties agree to

extend the discovery deadline, that the parties stipulate that discovery from the

dismissed action be used in the refiled action7 and that appellees address certain

alleged deficiencies in their responses to requests for production in the dismissed

action, (3) the salary spreadsheet attached to Donahue’s affidavit and (4)

Montgomery’s responses to appellees’ discovery requests in the dismissed action.

Appellees filed a reply in which they objected to Montgomery’s

attempt to identify new “incidents” to support her claim of constructive discharge

that had not been alleged in the complaint. They argued that Montgomery was

“limited to the allegations of her pleading” and could not “enlarge her claims” in

defense of their summary judgment motion. They further argued that, based on the

lack of argument and analysis in her opposition, Montgomery had failed to meet her

burden under Civ.R. 56(C), i.e., that Montgomery had failed to present evidence of

specific facts demonstrating a genuine issue for trial as to any of her claims.

D. The Trial Court’s Ruling on Summary Judgment

On October 23, 2023, the trial court granted appellees’ motion for

summary judgment. Citing Wolk v. Paino, 2011-Ohio-1065, ¶ 36 (8th Dist.), and

Karsnak v. Chess Fin. Corp., 2012-Ohio-1359, ¶ 48 (8th Dist.), the trial court stated

that Montgomery’s claims could not be “enlarge[d]” on summary judgment “by

adding factual matters not pleaded in the complaint” and determined that it could

7 There is no indication in the record that the parties agreed to such a stipulation. not consider alleged Incidents 1, 4, 5, 6, 7 or 8 in ruling on appellees’ motion for

summary judgment because these incidents were “not alleged or referenced in the

complaint at all” and the allegations of the complaint were otherwise “insufficient to

put [appellees] on notice that Montgomery was making specific claims about

Sheridan and Bok.” Reviewing the evidence of the incidents it determined it could

properly consider on summary judgment, i.e., Incidents 2, 3, 9 and 10, the trial court

granted summary judgment in appellees’ favor on all of Montgomery’s claims,

concluding, in a detailed, well-reasoned opinion, that there were no genuine issues

of material fact, that Montgomery could not establish essential elements of her

claims against appellees and that appellees were, therefore, entitled to judgment as

a matter of law.

Montgomery appealed, raising the following two assignments of error

for review:

Assignment of Error No. 1 The trial court committed reversible error by refusing to consider the evidence referenced on page 10 of its October 23, 2023 summary judgment opinion.

Assignment of Error No. 2 The trial court committed reversible error by granting Appellees’ motion for summary judgment. II. Law and Analysis

A. The Trial Court’s Failure to Consider the Evidence Referenced on Page 10 of its Summary Judgment Opinion

In her first assignment of error, Montgomery contends that the trial

court erred in “refusing to consider” “the evidence referenced on page 10 of its

October 23, 2023 summary judgment opinion.” It is not entirely clearly to what

“evidence” Montgomery is referring. Page 10 of the trial court’s summary judgment

opinion begins in the middle of a paragraph. That paragraph, continued from the

prior page, addresses the “ridicule” to which “Montgomery was allegedly subjected”

and consists of quotations of allegations from Montgomery’s complaint. The trial

court states that, “[b]ased on this,” i.e., the quoted allegations from Montgomery’s

complaint, it could consider “the incidents on April 9 and 10” and “Kowalski’s

comment about Montgomery’s weight” but could not consider “the allegations about

John Bok,” “any alleged statements from Tom Sheridan regarding ‘southern charm’

or maternity leave” or “Montgomery’s testimony regarding Sheridan assigning a

project to ‘show women how it works’” because “[t]hese events” were not alleged or

“alluded to” in Montgomery’s complaint. Page 10 ends with a quotation from R.C.

4112.02(A).

App.R. 16(A)(7) requires an appellant to include in her brief “[a]n

argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies.” The Rules of Appellate Procedure do not permit parties to

“incorporate by reference” arguments from other sources. See, e.g., Barry v. White,

2023-Ohio-1570, ¶ 11 (8th Dist.); Curtin v. Mabin, 2008-Ohio-2040, ¶ 9 (8th Dist.).

Appellate courts are not “‘obligated to search the record or formulate legal

arguments on behalf of the parties.’” Risner v. Ohio Dept. of Natural Resources,

Ohio Div. of Wildlife, 2015-Ohio-3731, ¶ 28, quoting State v. Quarterman, 2014-

Ohio-4034, ¶ 19; see also Strauss v. Strauss, 2011-Ohio-3831, ¶ 72 (8th Dist.) (If an

argument exists to support an assignment of error, “‘it is not this court’s duty to root

it out.’”), quoting Cardone v. Cardone, 1998 Ohio App. LEXIS 2028, *22 (9th Dist.

May 6, 1998). We may disregard an assignment of error presented for review if the

appellant fails to comply with App.R. 16(A). See App.R. 12(A)(2). Accordingly, for

this reason alone, we could overrule Montgomery’s first assignment of error.

Even if we were to consider Montgomery’s first assignment of error

and interpret it as challenging the trial court’s refusal to consider evidence of

Incidents 1 and 4-8 described above, we would find no reversible error here.

Montgomery does not dispute that she presented evidence of

additional incidents of alleged discrimination in her opposition to summary

judgment that were not alleged in her complaint.

She contends, however, that because appellees served interrogatories

in the dismissed action in which they asked Montgomery to describe “any conduct”

by appellees that she “claim[ed]” was “discriminatory” and questioned her about her

answers to those interrogatories during her deposition in the dismissed action, appellees were “on notice” of “the allegations underlying [her] claims” and the trial

court “committed reversible error” by relying on Wolk, 2011-Ohio-1065, and

Karsnak, 2012-Ohio-1359, and “refusing to consider some of [Montgomery’s] key

evidence” when ruling on appellees’ motion for summary judgment. Montgomery

has cited no legal authority supporting this proposition.8

Appellees respond that if Montgomery wished to assert these

allegations as additional grounds for recovery on her claims, she needed to amend

her complaint to include them, and that, she failed to do so, and, instead, “filed the

8 The only case Montgomery cites in support of her first assignment of error is A-

M.R. v. Columbus City School Dist., 2015-Ohio-3781 (10th Dist.). Montgomery does not explain why she contends this case applies; she simply asks this court to “consider the following” quote from that case:

Civ.R. 56(C) places a mandatory duty on a trial court to thoroughly examine all appropriate materials filed by the parties before ruling on a motion for summary judgment. The failure of a trial court to comply with this requirement constitutes reversible error. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 604 N.E.2d 138 (1992), paragraph one of the syllabus. More explicitly, when “a court has failed to consider a deposition properly before it in rendering summary judgment it commits error which is, per se, prejudicial and renders the judgment erroneous as a matter of law.” Kramer v. Brookwood Retirement Community, 1st Dist. Hamilton No. C-920182 (Aug. 4, 1993).

A-M.R. at ¶ 15. In that case, the trial court failed, without explanation, to consider the deposition testimony and other materials submitted by the plaintiff with her opposition to summary judgment and, instead, referred only to the allegations of plaintiff’s complaint when analyzing the facts relevant to the defendant’s motion for summary judgment. Id. at ¶ 15, 17. The court held that because “[t]he trial court in its decision evinced no information that it had considered [the plaintiff’s] evidentiary submissions” and did not provide “a valid justification for failing to consider that evidence,” the trial court had erred in determining that there was no evidence of a defect and granting summary judgment in favor of the defendant on the plaintiff’s claim for injuries resulting from a shattered glass door. Id. at ¶ 19, 22. There was no claim in that case that the plaintiff, in opposing summary judgment, sought to expand her claims beyond those asserted in her complaint. Likewise, there is no claim here that the trial court, without explanation, failed to consider any evidence Montgomery submitted with her opposition to summary judgment. exact same Complaint” as she had filed in the original case. As such, appellees

maintain, “Montgomery is limited to the allegations of her complaint” and the trial

court properly limited its consideration of her discrimination claims to the

allegations set forth in her complaint.

In Wolk, the plaintiffs purchased a home but waived the right to

obtain a prepurchase home inspection. Wolk at ¶ 5. They subsequently discovered

substantial mold and water intrusion in the home and brought a breach of fiduciary

duty claim against the defendant realtor. Id. at ¶ 6-7. In their complaint, the

plaintiffs alleged that the defendant breached her fiduciary duty by failing to direct

the plaintiffs to obtain a home inspection. Id. at ¶ 7. In their brief in opposition to

the defendant’s motion for summary judgment, however, the plaintiffs attempted to

assert additional ways in which the defendant allegedly breached her fiduciary duty.

Id. at ¶ 37.

On appeal of the trial court’s ruling granting summary judgment in

favor of the defendant, the plaintiffs argued that the trial court had erred in limiting

its review to the plaintiffs’ allegation that the defendant should not have allowed

them to waive the home inspection. Id. at ¶ 35. This court disagreed. This court

explained:

A plaintiff is required to set forth a short and plain statement showing she is entitled to relief. Civ.R. 8(A). The purpose of notice pleading is to notify a defendant of the allegations against him so that he might prepare a defense thereon. In their complaint, appellants narrowly limited their cause of action to the allegation that [the defendant] breached her duty by allowing [appellants] to waive the inspection. By making the allegations in the complaint so specific, appellees were not put on notice of any other alleged breaches. Generally, a plaintiff cannot enlarge her claims during a defense to a summary judgment motion and is limited to the allegations of her pleading.

Here, appellants specifically alleged in their complaint that the breach of fiduciary duty resulted from [the defendant’s] “failure to fulfill her duties . . . by not having inspections completed to fully review the conditions of the house that would have resulted in discovering mold and other conditions that were defects in the property.” . . . We find that appellants are limited to the allegations of their complaint. They had the opportunity to amend their complaint and failed to [do] so in accordance with the civil rules. As such, appellees were not properly put on notice of these additional allegations.

Id. at ¶ 36-38.

In Karsnak, 2012-Ohio-1359, the plaintiff filed suit against her

former employer, asserting various claims, including a claim for retaliatory

discharge. Id. at ¶ 9. In her complaint, the plaintiff alleged that the employer had

unlawfully terminated her in retaliation for filing a claim with the Equal

Employment Opportunity Commission. Id. at ¶ 48. In her opposition to summary

judgment, the plaintiff argued that the alleged retaliatory termination resulted from

her complaining of age discrimination. Id. at ¶ 46. On appeal of the trial court’s

decision granting summary judgment in favor of the employer, this court limited its

review of the plaintiff’s retaliatory discharge claim to the allegations of the

complaint, citing Wolk. Id. at ¶ 49. The court stated that “[b]y making the

allegations in the complaint so specific,” the employer was “not put on notice” that

the plaintiff would later claim her termination resulted from her age discrimination

complaint. Id. at ¶ 48. “Generally, a plaintiff cannot enlarge her claims during a defense to a summary judgment motion and is limited to the allegations of her

pleading.” Id.

We need not resolve this issue here because even if we were to

consider all of the evidence Montgomery submitted in support of her opposition to

summary judgment, i.e., her deposition testimony from the dismissed action

regarding all ten alleged incidents, she has not shown that the trial court erred in

granting appellees’ motion for summary judgment.

B. Montgomery’s Claims of Constructive Discharge, Disparate Treatment Sex Discrimination and Hostile Work Environment

1. Standard of Review

We review summary judgment rulings de novo, applying the same

standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105

(1996). We accord no deference to the trial court’s decision and conduct an

independent review of the record to determine whether summary judgment is

appropriate.

Under Civ.R. 56, summary judgment is appropriate when no genuine

issue exists as to any material fact and, viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach only one conclusion that is

adverse to the nonmoving party, entitling the moving party to judgment as a matter

of law. Id. On a motion for summary judgment, the moving party carries an initial

burden of identifying specific facts in the record that demonstrate his or her

entitlement to summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292–293 (1996). If the moving party fails to meet this burden, summary judgment is not

appropriate; if the moving party meets this burden, the nonmoving party has the

reciprocal burden to point to evidence of specific facts in the record demonstrating

the existence of a genuine issue of material fact for trial. Id. at 293. Summary

judgment is appropriate if the nonmoving party fails to meet this burden. Id.

A fact is material if it “‘might affect the outcome of the suit under the

governing law’ of the case.” Oko v. Cleveland Div. of Police, 2021-Ohio-2931, ¶ 23

(8th Dist.), quoting Turner v. Turner, 67 Ohio St.3d 337, 340 (1993). “A factual

dispute is ‘genuine’ only if ‘it allows reasonable minds to return a verdict for the

nonmoving party.’” Huntington Natl. Bank v. Blount, 2013-Ohio-3128, ¶ 32 (8th

Dist.), quoting Sysco Food Servs. v. Titan Devs., 1995 Ohio App. LEXIS 4762, *7

(9th Dist. Oct. 25, 1995).

In her complaint, Montgomery asserted five claims against appellees:

(1) sex discrimination-hostile work environment, (2) sex discrimination-disparate

treatment, (3) constructive discharge, (4) violation of public policy and (5)

intentional infliction of emotional distress. In her appellate brief, Montgomery’s

focus is on her constructive discharge claim. She asserts that “this is a constructive

discharge case” and that “the cumulative harassment, hostile work environment,

and disparate treatment she endured” “compelled her to resign.”

In her second assignment of error, Montgomery argues that her

burden on summary judgment was “to come forward with sufficient evidence to

demonstrate that reasonable minds could differ as to whether the cumulative effect of the sexual harassment, hostile work environment, and disparate treatment was

so intolerable that she felt compelled her to resign” and that she “clearly met that

burden.”9 However, Montgomery does not show or explain how she allegedly met

that burden. She simply asserts — directing this court, in a footnote, to “the

evidence” on “page 18 of her BIO filed in the trial court”10 — that the trial court “was

required to look at the cumulative facts and circumstances” of her “entire

employment” with ExchangeBase and “failed to do so.” She, therefore, requests that

we reverse the trial court’s decision on summary judgment and remand the case “for

a trial by [her] peers.”

Pursuant to R.C. 4112.02(A), it is an “unlawful discriminatory

practice . . . [f]or any employer, because of the . . . sex . . . of any person, to discharge

without just cause, to refuse to hire, or otherwise to discriminate against that person

with respect to hire, tenure, terms, conditions, or privileges of employment, or any

9 Montgomery does not even mention her claims for violation of public policy or

intentional infliction of emotional distress in her appellate brief — let alone argue that the trial court erred in granting summary judgment in favor of appellees on those claims. Accordingly, we do not address those claims here. App.R. 16(A)(7); App.R. 12(A)(2) (“The court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based or fails to argue the assignment separately in the brief, as required under App.R. 16(A).”).

10 As stated above, an appellant does not comply with App.R. 16(A)(7) by directing

this court to, and incorporating by reference, arguments from other sources. See, e.g., Barry, 2023-Ohio-1570, at ¶ 11; Curtin, 2008-Ohio-2040, at ¶ 9. Further, page 18 of Montgomery’s brief in opposition does not contain any such evidence. It consists of a reference to “foregoing [deposition] testimony” that was “elected by Defendants’ counsel on cross-examination,” a brief criticism of the “self-serving” affidavits and salary spreadsheet appellees submitted in support of their motion for summary judgment, a reference to documents allegedly supporting her view of the case that Montgomery claims were requested in discovery but not produced by appellees and a recitation of the standard for summary judgment under Civ.R. 56(C). matter directly or indirectly related to employment.” R.C. 4112.02(A)’s prohibition

of sexual discrimination in employment includes “‘hostile environment’

harassment,” i.e., “harassment that, while not affecting economic benefits, has the

purpose or effect of creating a hostile or abusive working environment.” Hampel v.

Food Ingredients Specialties, 89 Ohio St.3d 169, 176 (2000).

2. Constructive Discharge

Constructive discharge exists where an employer’s actions make

working conditions so intolerable that a reasonable person, under the

circumstances, would have felt compelled to resign. Mauzy v. Kelly Servs., Inc., 75

Ohio St.3d 578, 588-589 (1996). “A claim of constructive discharge is in essence a

claim that the employer’s conduct was so egregious that the employee was forced to

sever the employment relationship involuntarily.” Vogt v. Total Renal Care, Inc.,

2016-Ohio-4955, ¶ 24 (8th Dist.), citing Bowers v. Hamilton City School Dist. Bd.

of Edn., 2002 Ohio App. LEXIS 1356, *16 (12th Dist. Mar. 25, 2001). Ohio courts

apply an objective test in determining whether an employee was constructively

discharged, considering “whether the cumulative effect of the employer’s actions

would make a reasonable person believe that termination was imminent.” Mauzy

at 588-589; Vogt at ¶ 25.

To prevail on a constructive discharge claim premised on disparate

treatment sexual discrimination, a plaintiff must establish that she was subject to

disparate treatment based on her sex and show that a reasonable employer would

have foreseen that she would resign, given the sexual discrimination she faced. Similarly, to prevail on a claim of constructive discharge premised on a hostile

working environment based on sexual harassment, a plaintiff must establish the

existence of a hostile working environment based on sexual harassment and show

that a reasonable employer would have foreseen that she would resign, given the

sexual harassment she faced. See, e.g., Fox v. Lorain Cty., 2007-Ohio-6143, ¶ 27

(9th Dist.).

3. Disparate Treatment Sex Discrimination

A plaintiff may prove disparate treatment sex discrimination by direct

evidence or indirect evidence. Direct evidence is “‘evidence which, if believed,

requires the conclusion that unlawful discrimination was at least a motivating factor

in the employer’s actions.’” Birch v. Cuyahoga Cty. Probate Court, 2007-Ohio-

6189, ¶ 23 (8th Dist.), quoting Jacklyn v. Schering-Plough Healthcare Products

Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999); Jones v. Unican Ohio, LLC, 2022-

Ohio-948, ¶ 31 (8th Dist.). In considering whether statements constitute direct

evidence of discrimination, courts consider: (1) whether the comments were made

by a decision-maker; (2) whether the comments were related to the decision-making

process; (3) whether they were more than vague, isolated or ambiguous remarks;

and (4) whether they were proximate in time to the adverse, alleged discriminatory

action. Birch at ¶ 23; Jones at ¶ 33. “Because employers typically do not announce

their discriminatory intent, direct evidence of discrimination is rare.” Kelley v.

Dayton Pub. School Bd. of Edn., 2024-Ohio-979, ¶ 26 (2d Dist.). Sex discrimination claims based on indirect evidence are evaluated

under the burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).11 To establish a prima facie case of sex discrimination

using indirect evidence, a plaintiff must demonstrate that (1) he or she is a member

of a protected class, (2) he or she was qualified for the position in question, (3) he or

she suffered an adverse employment action despite her qualifications and (4) he or

she was treated less favorably than a similarly situated individual outside the

protected class. Birch at ¶ 21; Smith v. ExpressJet Airlines, Inc., 2015-Ohio-313,

¶ 13 (8th Dist.). If the plaintiff establishes a prima facie case of sex discrimination,

then the burden shifts to the employer to articulate a legitimate, nondiscriminatory

reason for its action. Birch at ¶ 21, citing Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 253 (1981); Smith at ¶ 13. If the employer carries its burden,

the burden shifts back to the plaintiff to establish that the employer’s proffered

reason was not the true reason but a pretext for discrimination. Birch at ¶ 21; Smith

at ¶ 13. At all times, however, “‘[t]he ultimate burden of persuading the trier of fact

that the employer intentionally discriminated against the plaintiff remains with the

plaintiff.’” Birch at ¶ 21, quoting Burdine at 253.

11 Due to the similarities between R.C. 4112.02 and Title VII of the Civil Rights Act

of 1964 (“Title VII”), Ohio courts often look to federal cases interpreting Title VII when considering employment discrimination claims brought under Ohio law. See, e.g., Ingram v. Glavin, 2023-Ohio-1290, ¶ 46 (8th Dist.); see also Wholf v. Tremco Inc., 2015- Ohio-171, ¶ 24 (8th Dist.) (observing that because Ohio’s antidiscrimination laws in R.C. Chapter 4112 are “modeled after Title VII,” Ohio courts have found federal case law interpreting Title VII to be generally applicable to cases involving alleged violations of R.C. Chapter 4112). 4. Hostile Work Environment

A hostile work environment exists where a 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 abusive

working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), quoting

Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986) (internal quotation

omitted).

To prevail on a hostile work environment claim based on sexual

harassment, a plaintiff must show that (1) he or she was subject to unwelcome

harassment, (2) the harassment was based on sex, (3) the harassing 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)

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.

Hampel, 89 Ohio St.3d at 176-177.

The standard for assessing hostility is “demanding” in order to “filter

out complaints that attack ‘the ordinary tribulations of the workplace.’” Faragher

v. Boca Raton, 524 U.S. 775, 788 (1998), quoting B. Lindemann & D. Kadue, Sexual

Harassment in Employment Law 175 (1992); see also Chapa v. Genpak, LLC, 2014-

Ohio-897, ¶ 35 (10th Dist.) (same); Parker v. Hankook Tire Mfg. Tenn., LP, 2023

U.S. App. LEXIS 34010, *10 (6th Cir. Dec. 21, 2023) (“‘This standard sets a high bar for plaintiffs in order to distinguish meaningful instances of discrimination from

instances of simple disrespect.’”), quoting Khalaf v. Ford Motor Co., 973 F.3d 469,

485 (6th Cir. 2020). Conduct that is “merely offensive” is insufficient to support a

hostile work environment claim. Harris at 21. Likewise, actions such as “simple

teasing, offhand comments, and off-color jokes, while often regrettable, do not cross

the line into actionable misconduct.” E.E.O.C. v. Fairbrook Med. Clinic, P.A., 609

F.3d 320, 328 (4th Cir. 2010).

In evaluating whether alleged harassment was sufficiently “severe or

pervasive” to affect the terms, conditions or privileges of employment and create a

hostile work environment, the work environment must be viewed “as a whole,”

considering the “totality” of the facts and circumstances, including the frequency of

the alleged 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. Hampel at 180-181. “[T]he issue is not

whether each incident of harassment standing alone is sufficient to sustain the cause

of action in a hostile environment case, but whether — taken together — the reported

incidents make out such a case.” Williams v. GMC, 187 F.3d 553, 562 (6th Cir.

1999); Clay v. UPS, 501 F.3d 695, 708 (6th Cir. 2007) (observing that in a hostile

work environment, the actionable wrong is the environment, not the individual acts

that together create the environment).

The “severe or pervasive” inquiry has both an objective and a

subjective component: “‘The conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the

victim must subjectively regard that environment as abusive.’” Johnson v. Ford

Motor Co., 13 F.4th 493, 505 (6th Cir. 2021), quoting Black v. Zaring Homes, Inc.,

104 F.3d 822, 826 (6th Cir. 1997); see also Hampel, 89 Ohio St.3d at 176 (“‘Conduct

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. Likewise, if the victim does not subjectively

perceive the environment to be abusive, the conduct has not actually altered the

conditions of the victim’s employment, and there is no Title VII violation.’”), quoting

Harris, 510 U.S. at 21-22; Rice v. Cuyahoga Cty. DOJ, 2005-Ohio-5337, ¶ 32 (8th

Dist.); Chapa, 2014-Ohio-897, at ¶ 55.

Although it has been said that the question of whether conduct is

severe or pervasive is “‘quintessentially a question of fact,’” see, e.g., Retuerto v.

Berea Moving Storage & Logistics, 2015-Ohio-2404, ¶ 40 (8th Dist.), quoting

Stachura v. Toledo, 2008-Ohio-3581, ¶ 33 (6th Dist.), courts have, nevertheless,

affirmed grants of summary judgment, in appropriate cases, after determining that

the alleged conduct was not sufficiently severe or pervasive to create a hostile work

environment as a matter of law. See, e.g., State v. Hinton, 2022-Ohio-4783, ¶ 41

(8th Dist.) (summary judgment was appropriate on hostile work environment claim

where appellants failed to demonstrate a genuine issue of fact that alleged racial

harassment was so severe or pervasive as to create an objectively hostile work

environment); Chapa, 2014-Ohio-897, at ¶ 65-66, 68-69 (trial court properly granted summary judgment in favor of employer on hostile work environment claim

where reasonable minds could come but one conclusion on the issue).

Further, a hostile work environment constructive discharge claim

requires proof of more than the severe or pervasive conduct required for a hostile

work environment claim. “‘While a hostile-work-environment claim requires a

plaintiff to prove “severe or pervasive” harassment, . . . [a] plaintiff who advances

such a compound claim must show working conditions so intolerable that a

reasonable person would have felt compelled to resign.’” Godsey-Marshall v.

Phillipsburg, 2010-Ohio-2266, ¶ 23 (2d Dist.) (describing such a “compound claim”

as “‘an aggravated case of, sexual harassment or hostile work environment’”),

quoting Pennsylvania State Police v. Suders, 542 U.S. 129, 146 (2004); see also

Greenberg v. Toledo Pub. Schools, 2023-Ohio-864, ¶ 41 (6th Dist.); Mowery v.

Columbus, 2006-Ohio-1153, ¶ 27-28 (10th Dist.).

C. Montgomery’s Failure to Meet her Burden on Appeal

As the appellant, it is Montgomery’s burden to affirmatively

demonstrate reversible error in the record and to substantiate her arguments in

support thereof. See, e.g., Mitchell v. Dir. Ohio Dept. of Job & Family Servs., 2024-

Ohio-2073, ¶ 28-29 (8th Dist.); Eagle’s View Professional Park Condominium Unit

Owners Assn., Inc. v. EVPP, L.L.C., 2015-Ohio-1929, ¶ 21 (12th Dist.); see also

Toliver v. Vectren Energy Delivery of Ohio, Inc., 2015-Ohio-5055, ¶ 30 (appellant’s

arguments, undeveloped “beyond conclusory statements” and “[u]nsupported legal

conclusions,” did not demonstrate error; “disagreement” with orders below is “insufficient to establish reversible error”). It is not the duty of this court to “root

out” or develop an argument that could support an assigned error — even if one

exists — or to search the record for evidence to support an appellant’s position. See,

e.g., Vari v. Coppola, 2019-Ohio-3475, ¶ 10 (7th Dist.); see also La Spisa v. La Spisa,

2023-Ohio-3467, ¶ 57 (8th Dist.) (“It is not this court’s role to scour the record to

root out issues and arguments.”); UBS Fin. Servs. v. Lacava, 2018-Ohio-3276, ¶ 21

(8th Dist.) (It is not the function of an appellate court “to construct a foundation”

for an appellant’s claims.) (citations omitted).

Montgomery has not met her burden here. She has not shown that

the trial court erred in granting summary judgment in favor of appellees on her

claims. In support of her second assignment of error, Montgomery merely quotes

authority regarding what is required to prove constructive discharge. Here, as in

her in brief in opposition to summary judgment below, Montgomery does not even

identify the elements of a claim for disparate treatment sex discrimination or a

hostile work environment claim much less apply the applicable legal standards and

show that, based on evidence in the record, a reasonable factfinder could find in

favor of Montgomery as to those claims or her constructive discharge claim.

While appellees met their burden under Civ.R. 56(C), presenting

evidence of specific facts in the record demonstrating their entitlement to summary

judgment based on the lack of evidence of essential elements of each of

Montgomery’s claims, it cannot be said that Montgomery met her reciprocal burden,

i.e., pointing to evidence of specific facts in the record demonstrating the existence of a genuine issue of material fact for trial on her sex discrimination, hostile work

environment and constructive discharge claims. To the contrary, Montgomery has

not even attempted to show that the evidence she presented demonstrated the

existence of a genuine issue of material fact for trial as to any of her claims.

Montgomery, likewise, has not cited any cases involving similar facts in which a

sexual discrimination claim, hostile work environment claim or constructive

discharge claim survived summary judgment.

Even if we were to do what Montgomery has not and apply the

applicable legal standards to the facts and evidence in this case, it would not change

the result. Following a careful, thorough review, we find that the record does not

contain any genuine issues of material fact that would preclude summary judgment

in favor of appellees.

Montgomery has presented no evidence that any alleged disparity in

compensation among similarly situated employees was based on sex. The salary

spreadsheet attached to Donahue’s affidavit shows that salaries varied widely and

changed frequently. It does not establish that Montgomery, or women generally,

were being paid less than similarly situated men. Montgomery has not presented

any evidence contradicting the information in the spreadsheet.

Montgomery has likewise presented no evidence from which it could

be reasonably inferred that the assignment of projects following Matthews’

departure was based on sex, that the “secret” hiring of Stetzer for the director of

business development position was based on sex or that Montgomery was denied any other employment opportunities or suffered any other adverse employment

action because of her sex.

Although certain of the acts and comments Montgomery found

objectionable may have been insensitive or obnoxious, R.C. Chapter 4112, like Title

VII, is not meant to be a general, workplace “civility code” and the “‘sporadic use”’

of profanity, “‘abusive language, . . . jokes, and occasional teasing’” is not sufficient

to establish liability on a hostile work environment claim. Faragher, 524 U.S. at

788, quoting Sexual Harassment in Employment Law at 175; Fox, 2007-Ohio-6143,

at ¶ 29.12

The evidence Montgomery presented does not paint a picture of a

workplace “permeated with discriminatory intimidation, ridicule, and insult”

because of her sex. Bok’s reference to a night at a strip club, Sheridan’s one-time

request that Montgomery use “her southern charm” to “sweet talk” a customer,

Montgomery’s discussion with Sheridan regarding the availability of maternity leave

(prior to any known pregnancy or request for maternity leave), Sheridan’s statement

to Cool that they would “show these women how the work here is done,” Kowalski’s

one-time, offhand comment regarding Montgomery’s weight loss and his use of

profanity to express his anger or frustration with Montgomery on two occasions (to

12 Although Montgomery testified that she perceived Kowalski’s use of the phrase

“go f*** herself” as being a “sexual reference,” we note that the phrase is generally considered an to be an idiom — a rude, slang, forceful expression of anger, dismissal or contempt directed at another — that means something different than its literal meaning. See, e.g., https://idioms.thefreedictionary.com/go+fuck+yourself (last accessed June 4, 2024). one of which Montgomery responded in kind) over one-and-one-half years of

employment was not sufficiently severe or pervasive that a reasonable person could

find Montgomery’s work environment to be objectively hostile due to sexual or

gender-based harassment. These comments were isolated and were not related to

any decision-making process. Given that Montgomery could not prove her

allegations of disparate treatment sex discrimination or a hostile work environment

based on sexual or gender-based harassment, she could not prove her claim that she

was constructively discharged based on such discrimination or harassment. See,

e.g., Godsey-Marshall, 2010-Ohio-2266, at ¶ 23; see also White v. Bay Mech. &

Elec. Corp., 2007-Ohio-1752, ¶ 15-16 (9th Dist.) (“[W]hen a hostile environment

claim and a constructive discharge claim are brought together, a party cannot

succeed on the constructive discharge claim if he has failed in his attempt to prove

the hostile environment claim. . . . ‘[T]he working conditions undergirding a claim

of constructive discharge must be even more egregious than those that would

support a hostile work environment claim. . . . [T]he conditions must be intolerable

because of the unlawful discrimination.’”), quoting Rait v. Oshkosh Architectural

Door Co., 2007 U.S. Dist. LEXIS 15076, *25-26 (E.D. Wis. Mar. 1, 2007). Based on

the facts presented, the working conditions to which Montgomery was subjected

were not intolerable that a reasonable person would have felt compelled to resign.

We overrule Montgomery’s assignments of error.

Judgment affirmed.

It is ordered that appellees recover from appellant the costs herein taxed. The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., and LISA B. FORBES, J., CONCUR